TX JM-814 October 22, 1987

Could one person simultaneously serve as county judge and city attorney for a city in the same Texas county?

Short answer: No. The Attorney General concluded that the city attorney's prosecution and litigation duties conflicted with the county judge's appellate role and statutory limits on practicing law.

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This page answers the general question as of 1987. Ezel answers yours: what it means for your facts, under current Texas law, with citations.

Disclaimer: This is an official Texas Attorney General opinion. AG opinions are persuasive authority in Texas courts but are not binding precedent. This summary is for informational purposes only and is not legal advice. The opinion dates from 1987; verify current statutes and case law before relying on it.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

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Texas AG Opinion JM-814: County Judge and City Attorney

Plain-English summary

The Criminal District Attorney asked whether Woodville's appointed city attorney could also fill a vacancy as Tyler County judge. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

The Attorney General concluded that one person could not perform both roles. The city attorney prosecuted municipal-court cases, while the county court heard appeals from some of those cases. A judge also could not sit in a case in which the judge had acted as counsel. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Because Tyler County had no county court at law, the dual officeholder's participation would require a special judge for each affected municipal appeal. A separate statute also restricted a county judge's law practice in courts over which the county court had original or appellate jurisdiction. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why did the city attorney's municipal prosecutions matter?

The county court had appellate jurisdiction over certain municipal-court convictions. The same person could not prosecute a case as city attorney and then preside over its appeal as county judge. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Could the county judge simply step aside from those appeals?

The opinion noted that Tyler County had no county court at law, so a special judge would have to be appointed in every appeal arising from a prosecution handled by the city attorney. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Did a statute restrict the county judge's private law practice?

Yes. Government Code section 82.064(b) barred a licensed county judge from practicing in a county or justice court when the judge's court had original or appellate jurisdiction over the matter. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Was the conclusion based only on common-law incompatibility?

No. The opinion described constitutional and statutory limits that prevented one person from performing the duties of both positions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Background and statutory framework

The Texas Constitution established the county court and prohibited a judge from sitting in a case in which the judge had been counsel. The Government Code gave the county court appellate jurisdiction over certain criminal cases originating in lower courts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Code of Criminal Procedure article 45.03 assigned municipal prosecutions to the city attorney. Government Code section 82.064(b) separately limited a county judge's appearance as a lawyer in county or justice court. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Citations and references

Tex. Const. art. V, §§ 1, 11, 15
Gov't Code §§ 25.0003, 25.0051-25.2512, 26.046, 29.003(b), 82.064(b)
Code Crim. Proc. arts. 30.01, 45.03
Acts 1987, 70th Leg., ch. 148, §§ 3.01, 4.01
Chrestman v. Thompkins, 5 S.W.2d 257 (Tex. Civ. App. - Dallas 1928, writ ref'd), as printed in the official opinion

Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Source

Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0814
Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0814.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

October 22, 1987

JIM MATTOX
ATTORNEY GENERAL

Honorable Patrick O. Hardy
Criminal District Attorney
Room 201, Courthouse
Woodville, Texas 75979

Opinion No. JM-814

Re: Whether an individual may simultaneously serve as county judge and city attorney of a city within that county

Dear Mr. Hardy:

You ask whether a city attorney who is appointed to fill a vacancy in the office of county judge may serve in both capacities. The individual in question serves as the appointed city attorney of Woodville, a general law city in Tyler County.

The county judge presides over the county court established by the Texas Constitution. Tex. Const. art. V, § 15. The county court has appellate jurisdiction in criminal cases of which justice courts and other inferior courts have original jurisdiction. Gov't Code § 26.046. A justice court and a municipal court located within the justice precinct have concurrent jurisdiction of criminal cases under state law which arise within the territorial limits of the municipality and are punishable only by a fine not to exceed $200. Gov't Code § 29.003(b). The Tyler County Court therefore has appellate jurisdiction of certain criminal cases originally tried in municipal court. Although the legislature is authorized to establish statutory county courts with the same jurisdiction as the constitutional county courts, it has not established one in Tyler County. Tex. Const. art. V, § 1; Gov't Code § 25.0003 (enacted by Acts 1987, 70th Leg., ch. 148, § 4.01, at 1218). See Gov't Code §§ 25.0051-25.2512 (enacted by Acts 1987, 70th Leg., ch. 148, § 4.01, at 1227) (provisions establishing statutory county courts, codified alphabetically by county).

Prosecutions in a municipal court are to be conducted by the city attorney. Code Crim. Proc. art. 45.03. However, article V, section 11, of the Texas Constitution provides that "[n]o judge shall sit in any case . . . when he shall have been counsel in the case." See also Code Crim. Proc. art. 30.01. Thus, the county court could not hear any appeals from municipal court prosecutions brought by the city attorney in this case. Because there are no county courts at law in Tyler County, a special judge would have to be appointed in every case appealed from municipal court in which the city attorney/county judge was prosecutor. One person cannot both prosecute cases in municipal court as required by article 45.03 of the Code of Criminal Procedure and preside over the court to which the convictions are appealed. The statutes prevent one person from performing the duties of both offices.

Moreover, another statute limits the power of one person to serve as city attorney and county judge of the county in which the city is located. Section 82.064(b) of the Government Code provides as follows:

A county judge or county clerk who is licensed to practice law may not appear and practice as an attorney at law in any county or justice court except in cases over which the court in which the judge or clerk serves has neither original nor appellate jurisdiction.

Gov't Code § 82.064(b) (formerly Gov't Code § 21.003(b); renumbered by Acts 1987, 70th Leg., ch. 148, § 3.01, at 1216). A city attorney ordinarily represents the city in litigation. See Chrestman v. Thompkins, 5 S.W.2d 257 (Tex. Civ. App. - Dallas 1928, writ ref'd) (provision in city charter). If a city attorney serves as county judge, he will not be able to represent the city in the justice court on cases in which the county court has appellate jurisdiction or in the original or appellate jurisdiction of the county court. The statutory prohibitions so limit the capacity of one individual to carry out the duties of Woodville city attorney and Tyler county judge that they constitute a statutory prohibition against such dual service. One individual may not serve in both positions.

SUMMARY

One person may not simultaneously serve as county judge of Tyler County and as city attorney of a general law city located in Tyler County. Statutory and constitutional limits on the practice of law by a county judge, together with the absence of county courts at law in Tyler County, render it impossible for one person to perform the duties of both positions.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

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