Can a Texas district attorney also serve as a legal officer in the Air Force Reserve?

Plain-English summary

The district attorney serving Tom Green County was also a legal officer in the United States Air Force Reserve. Because that district attorney is covered by the Professional Prosecutors Act (chapter 46 of the Government Code), which bars certain prosecutors from the "private practice of law," the county attorney asked the Attorney General whether the reserve service counted as private practice and, if so, what the remedy would be.

The opinion concluded that serving as a reserve military legal officer is not the private practice of law, so it does not violate the Act. The Act does not define "private practice of law," and no Texas case addressed the military question, so the opinion looked at what the prohibition is for and how military lawyering differs from civilian practice. The main purpose of the ban is to keep prosecutors from spending their time on private clients instead of public business; the Act even ties a covered prosecutor's pay to a district judge's salary to reinforce that the job is full-time public work. A reserve legal officer, by contrast, is an officer of the armed forces "designated to perform legal duties for a command," not someone serving private clients.

The opinion leaned on an Alaska Supreme Court decision, In re Babcock, which held that serving as a military legal officer is not even the practice of law, because a military attorney is assigned work by the Judge Advocate General, cannot select clients or represent one citizen against another, and is fundamentally a soldier in the service of the country rather than a private practitioner. Combined with Texas's strong policy of accommodating state employees who serve in the reserves (leave of absence rights and re-employment rights), the opinion predicted a Texas court would follow Babcock's reasoning. Because it found no violation, the opinion did not reach the follow-up questions about remedies, which had assumed the reserve service broke the Act.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Professional Prosecutors Act and the military-leave provisions of the Government Code can change, so verify the current statute before relying on any specific rule mentioned here.

What the opinion meant for those who asked

District attorneys covered by the Professional Prosecutors Act (what the opinion held for them): The opinion held that serving as a legal officer in the Air Force Reserve is not the private practice of law and does not violate the Act, so a covered prosecutor could hold that reserve position.

County officials and prosecutor offices (what the opinion held for them): The opinion held there was no violation to remedy, so it did not reach the questions about what would happen if reserve service had broken the Act.

Common questions

Does the Professional Prosecutors Act let a covered DA serve in the military reserves as a lawyer?
Under this opinion, yes. The Attorney General concluded that reserve service as a military legal officer is not the "private practice of law" the Act prohibits.

Why isn't military legal work considered private practice?
The opinion explained that a military legal officer is assigned work by the Judge Advocate General, cannot choose clients or represent one citizen against another, and serves as a soldier rather than as a private lawyer.

What does the ban on private practice actually protect against?
The opinion described the purpose as preventing prosecutors from spending their time on private clients instead of public business; the Act even sets a covered prosecutor's pay equal to a district judge's.

Did Texas policy matter to the answer?
Yes. The opinion pointed to Texas's strong policy of accommodating reservists, including leave-of-absence and re-employment rights, as supporting its conclusion.

Background and statutory framework

The Professional Prosecutors Act, chapter 46 of the Government Code, applies to the District Attorney of Tom Green County and prohibits covered district attorneys from engaging in the private practice of law. Tex. Gov't Code Ann. §§ 46.002(1), 46.005(a) (Vernon Supp. 2001). The Act regulates covered prosecutors' compensation, setting it equal to that of a district judge, to reinforce that the position is full-time public work. Id. § 46.003. A prior opinion, JC-0034 (1999), described the prohibition's purpose as preventing prosecutors from attending to private clients rather than public business.

Federal law defines a legal officer as an officer "designated to perform legal duties for a command." 10 U.S.C. § 801(8), (12) (1994). The opinion also cited Texas provisions reflecting a policy of accommodating reservists: a state employee or officer who serves in the reserves may take a leave of absence, Tex. Gov't Code Ann. § 431.005(a) (Vernon 1998); id. § 658.008 (Vernon Supp. 2001), and employees who leave public employment for reserve duty are entitled to re-employment, id. § 613.002(a) (Vernon 1994); id. § 853.501(a)(1). The opinion relied on In re Babcock, 387 P.2d 694 (Alaska 1963), in which the Alaska Supreme Court held that service as a military legal officer is not the practice of law because the attorney is assigned work, cannot choose clients, and is essentially a soldier in the service of the country.

Citations

Statutory and federal provisions:

• Tex. Gov't Code Ann. §§ 46.002(1), 46.003, 46.005(a) (Vernon Supp. 2001)
• 10 U.S.C. § 801(8), (12) (1994)
• Tex. Gov't Code Ann. § 431.005(a) (Vernon 1998); § 658.008 (Vernon Supp. 2001); § 613.002(a) (Vernon 1994); § 853.501(a)(1)

Cases:

• In re Babcock, 387 P.2d 694 (Alaska 1963)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0034 (1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0380
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0380.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

May 23, 2001

The Honorable Chris Taylor
Tom Green County Attorney
112 West Beauregard
San Angelo, Texas 76903

Opinion No. JC-0380

Re: Whether a district attorney subject to the Professional Prosecutors Act may serve as a legal officer in the Air Force Reserve and related questions (RQ-0326-JC)

Dear Mr. Taylor:

Your predecessor, Mr. Thomas M. Goff, asked this office whether service as a legal officer in the United States Air Force Reserve constitutes the "private practice of law" for purposes of the Professional Prosecutors Act (the "Act"), chapter 46 of the Government Code, which prohibits certain prosecutors from engaging in the "private practice of law." See TEX. GOV'T CODE ANN. §§ 46.002(1), .005(a) (Vernon Supp. 2001). He also asked about the appropriate remedy, should we conclude that service as a legal officer in the reserves violates the Act. See Request Letter, note 1, at 2. Based on the fundamental differences between military and civilian attorneys and strong state policy encouraging reserve membership in the armed forces, we do not believe that service as a reserve military legal officer constitutes the private practice of law in the context of the Professional Prosecutors Act.

This inquiry concerns the District Attorney serving Tom Green County, who is also a legal officer in the United States Air Force Reserve. See Request Letter, note 1, at 1. The District Attorney of Tom Green County is subject to the Professional Prosecutors Act, chapter 46 of the Government Code. See TEX. GOV'T CODE ANN. § 46.002(1) (Vernon Supp. 2001).

The Professional Prosecutors Act prohibits district attorneys who are subject to the Act from engaging in the private practice of law. See id. § 46.005(a); see also Tex. Att'y Gen. Op. No. JC-0034 (1999) at 4 (noting that prosecutor subject to Act may not enter contract with a municipality). The primary objective of the prohibition on the private practice of law is to prevent prosecutors from spending their time "attending to the business of private clients rather than public business." Tex. Att'y Gen. Op. No. JC-0034 (1999) at 3. In the furtherance of this objective, the Act regulates the compensation of state prosecutors. See TEX. GOV'T CODE ANN. § 46.003 (Vernon Supp. 2001). District attorneys subject to the Act receive compensation equal to that provided to a district judge. See id. § 46.003 (providing compensation to state prosecutors equal to that of a district judge under the General Appropriations Act).

The Act fails to define the "private practice of law." Texas case law does not address whether service as a military legal officer constitutes the private practice of law. In our opinion, a person who is a reservist in the armed forces and who serves as a legal officer thereof, does not thereby engage in the private practice of law. Rather, he is an officer of the armed forces "designated to perform legal duties for a command." 10 U.S.C. § 801(8), (12) (1994).

Texas has a strong state policy to accommodate its state employees who serve in the reserves of the armed forces. For example, a state employee or officer who serves as a reserve member of the armed forces is entitled to take a leave of absence to perform his or her duties. See TEX. GOV'T CODE ANN. § 431.005(a) (Vernon 1998); id. § 658.008 (Vernon Supp. 2001). In fact, employees who leave public employment to perform reserve duty are entitled to re-employment with the state. See id. § 613.002(a) (Vernon 1994); id. § 853.501(a)(1).

Reserve service as a legal officer in the armed forces does not constitute the "private" practice of law. Moreover, it does not constitute the practice of law. In In re Babcock, 387 P.2d 694 (Alaska 1963) the Alaska Supreme Court held that service as a military legal officer does not constitute the practice of law. See Babcock, 387 P.2d at 698. Comparing the clientele of civilian and military attorneys, the court reasoned that unlike a civilian attorney, a military attorney is assigned legal work by the Judge Advocate General and does not possess the freedom to select clients or to represent a client in a matter between citizens. See id. at 697. The court noted that various definitions of the "practice of law" reference a business or profession and while a military attorney is assigned work that is legal in nature, the attorney's "business or profession while in the Armed Forces . . . is that of being [a] soldier . . . in the service of his country." Id. at 697-98. Accordingly, we think that a Texas court, in light of the purposes of the Professional Prosecutors Act, and state policy encouraging reserve service, would follow the rationale in Babcock and hold that a military legal officer is not engaged in the private practice of law. Because we do not believe that a military legal officer is engaged in the private practice of law, we do not address your remaining questions, which assume that service as a legal officer in the United States Air Force Reserve violates the Professional Prosecutors Act.

(Footnote: See Letter from Honorable Thomas M. Goff, Tom Green County Attorney, to Honorable John Cornyn, Texas Attorney General, at 2 (Dec. 8, 2000) (on file with Opinion Committee) [hereinafter Request Letter].)

SUMMARY

Service as a legal officer in the United States Air Force Reserve does not violate the Professional Prosecutors Act because it is not the private practice of law.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Polly McCann Pruneda
Assistant Attorney General - Opinion Committee