What private legal work may a district attorney, county attorney, or county judge take on, and can they use county offices and staff for it?

Plain-English summary

The inquiry posed a series of questions about whether a county attorney, district attorney, or county judge may accept private employment in various civil and criminal matters, in and outside the county, and whether such officials may use the office, telephone, and stenographer the county provides. Because of the number and interrelation of the questions, the Committee did not answer them individually but issued a general opinion (8-0).

For district and county attorneys, the Committee relied on Article 32 of the Code of Criminal Procedure, which bars them from being of counsel adversely to the State, and concluded they are prohibited from participating in any criminal or civil case adverse to the State. They may accept private civil employment where they do not act adversely to the State or county, provided they are not employed because of their official capacity and the advantages it might give the client, and provided the work does not interfere with the full and efficient handling of their official duties, citing Opinion 48. They should not use a county-provided office, telephone, or stenographer in private practice without compensating the county on a fair and equitable basis.

For county judges, the Committee noted that Article 319 of the Revised Civil Statutes and Articles 402 and 403 of the Penal Code govern their practice of law, citing Opinion 13 and the cases of Shoope v. State and Clarich v. State. Although Article 32 of the Code of Criminal Procedure does not apply to county judges, the Committee found it would nevertheless be unethical for a county judge to accept employment, criminal or civil, where he acts adversely to the State or county, citing Opinions 151 and 173. Where these officials engage in private practice, they remain subject to the Canons of Ethics, which, under Section 2 of Article XIII of the State Bar Rules, are cumulative of all laws relating to the conduct of lawyers and the practice of law. Two members viewed the questions about county judges as governed by statute and outside the Committee's jurisdiction, and those opinions were filed separately.

Currency note

This opinion was issued in 1958, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The statutes the opinion cites (Article 32 of the Code of Criminal Procedure, Article 319 of the Revised Civil Statutes, and Articles 402 and 403 of the Penal Code) have since been recodified or amended. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules and statutes before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a district or county attorney take private civil cases?

A: The Committee said they may, where they do not act adversely to the State or county, are not employed because of their official capacity, and the work does not interfere with the full and efficient handling of their official duties.

Q: Can these officials use their county office and staff for private work?

A: Not without paying for it. The Committee said they should not use a county-provided office, telephone, or stenographer in private practice without compensating the county on a fair and equitable basis.

Q: Are county judges treated the same as prosecutors here?

A: Largely yes on the ethics point. Although Article 32 of the Code of Criminal Procedure does not apply to county judges, the Committee found it would still be unethical for a county judge to take work adverse to the State or county; the judge's practice is also governed by Article 319 of the Revised Civil Statutes and Articles 402 and 403 of the Penal Code.

Background and rules framework

The opinion interprets former Texas Canon 6 (conflicting interests) together with the statutes governing these offices, and treats the Canons as cumulative of those statutes under Section 2 of Article XIII of the State Bar Rules. The modern analogs are ABA Model Rule 1.7 (conflict of interest, current clients) and Model Rule 1.11 (special conflicts for former and current government officers and employees).

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest, current clients) and MR 1.11 (government officers and employees), as the modern analogs
• Texas Canon 6 (former canon on conflicting interests)

Statutes:

• Article 32, Texas Code of Criminal Procedure (district and county attorneys not of counsel adversely to the State)
• Article 319, Texas Revised Civil Statutes (practice of law by judges and clerks)
• Articles 402 and 403, Texas Penal Code (county judges practicing law)
• Section 2 of Article XIII, State Bar Rules (Canons cumulative of other laws)

Cases:

• Shoope v. State, 38 S.W.2d 793, and Clarich v. State, 129 S.W.2d 291, on the practice of law by county judges

Other opinions cited:

• Texas Opinions 13, 48, 151, and 173, among others, on private practice by these officials

See also

• TX Ethics Op. 220: County Judge in Private Practice
• TX Ethics Op. 217: County Attorney's Private Practice Conflict
• TX Ethics Op. 184: City Attorney in Private Practice

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-183/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_183.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Would it be violation of the Canons of Ethics for a County Attorney, District Attorney or County Judge to accept employment in:
Uncontested civil cases in: (a) courts located in his county and in which litigation the state or county has no interest; (b) courts located outside his county and necessitating time away from his office both for short periods and extended periods?
Contested civil cases in: (a) courts located in his county and in which litigation the state or county has no interest; (b) courts located outside his county and necessitating time away from his office both for short periods and extended periods; (c) which his client in domestic relations proceedings involving support and custody cannot be made to pay alimony pendente lite to the wife, but may be prosecuted criminally for failure to support his wife?
Criminal cases in the courts mentioned above?
The situations above listed and use of the office, telephone and stenographer provided and paid for by the county?
The situations above listed by installing in office provided by county his private phone and stenographer?

18 Baylor L. Rev. 278 (1966)

CONFLICTS OF INTERESTS - EMPLOYMENT - DISTRICT AND COUNTY ATTORNEYS AND COUNTY JUDGES IN PRIVATE PRACTICE
It is improper for district or county attorneys or county judges to accept employment in any case in which they are: (1) acting adversely to the state or the county; (2) forbidden by statute to act; (3) employed because of their official capacity and the advantages possibly attainable thereby; (4) engaging in activities which would interfere with full and efficient performance of official duties. Such officials in their private practice are subject to the Canons of Ethics of the state, which are cumulative of all laws of the state relative to the practice of law tell State, County and City officials who are licensed to practice law. They should not use in their private practice the official offices, telephones or stenographers provided by the county, without equitably compensating the county for such use.

Canon 6.

Because of the number of questions and the interrelation between the questions, no attempt will be made to answer specific numbered and lettered questions, except as they are covered by the following opinion of the Committee:

District Attorney Χ County Attorney

Article 32 of the Code of Criminal Procedure of the State of Texas provides:

"District and county attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State."

Therefore district and county attorneys are prohibited by the laws of this State from participating in all criminal and civil cases adversely to the State.

It would not be improper or unethical for a district attorney or a county attorney to accept employment in a civil case where he is not acting adversely therein to the State or the county, provided he is not employed therein because of his official capacity and the advantages which his client might obtain by reason thereof. Under no circumstances should a district attorney or county attorney accept civil cases which would, in any manner, interfere with the full and efficient handling of his official duties. In no way should they prostitute their offices or turn them to their private advantage. See Opinion 48 of this Committee. If the employment requires the district attorney or county attorney to be away from his office for periods of time which would interfere with the performance of his official duties then it would be improper for him to accept the employment. The attorney should not use his office, telephone and stenographer which are provided and paid for by the County in his private practice without compensating the County on a fair and equitable basis for the use thereof.

County Judge

Opinion 13 of this Committee properly points out that Article 319 of the Revised Civil Statutes of the State of Texas and Articles 402 and 403 of the Penal Code of the State of Texas govern the practice of law in this State by County Judges. Article 319 of the Revised Civil Statutes provides:

"No Judge or clerk of the Supreme Court, Courts of Civil or Criminal Appeals, or District Court, or sheriff or deputy, or constable, shall be allowed to appear and plead as an attorney at law in any Court of record in this State. No county judge or county clerk who is licensed to practice law shall be allowed to appear and practice as an attorney at law in any County or Justice Court, except in cases where the Court over which such judge presides, or over which such clerk is clerk has neither original nor appellate jurisdiction. No county clerk who is licensed to practice law shall be allowed to appear and practice as an attorney at law in any District Court, Court of Civil Appeals, Court of Criminal Appeals, or the Supreme Court unless the Court of which such clerk is clerk has neither original nor appellate jurisdiction."

Article 402 of the Penal Code of Texas provides:

"Any county judge in this State who shall practice or offer or attempt to practice as an attorney at law in any county court or court of a justice of the peace shall be fined not less than one hundred nor more than five hundred dollars."

Article 403 of the Penal Code of Texas provides:

"County judges in those counties wherein the civil or criminal jurisdiction of the county court has or may be diminished shall if a licensed lawyer have the right to practice in all justice and county courts in cases where the courts over which they preside have neither original nor appellate jurisdiction."

The cases of Shoope v. State, 38 SW 2d 793 and Clarich v. State, 129 S.W. 2d 291 deal with the practice of law by county judges. The above opinions expressed with reference to the acceptance of employment by District and County Attorneys is equally applicable to County Judges. Although Article 32 of the Code of Criminal Procedure is not applicable to County Judges, it would nevertheless, in the opinion of the Committee, be unethical for County Judges to accept employment in any case, criminal or civil, where they are acting adversely to the State or County. See Opinions 151 and 173 of this Committee dealing with private practice by County Judges. Where District Attorneys, County Attorneys and County Judges engage in private practice, they are subject to the Canons of Ethics of the State Bar and should be required to comply with such Canons of Ethics. Section 2 of Article XIII, State Bar Rules, provides that the code of ethics shall be cumulative of all laws of the State of Texas relating to the conduct of lawyers and to the practice of law. It is the opinion of the Committee that the Canons of Ethics are cumulative of the statutes referred to above with respect to practice of law by State, County and City officials who are licensed to practice law. ( See Opinions this Committee 126, 23, 37, 49, 82, 108, 132, 143 and 124.)

Two members of the committee expressed views that portions of the questions, pertaining in particular to practice of County Judges, are governed by statute and are not within the jurisdiction of this Committee, and, under the present practice of this Committee, these opinions are filed separately. (8-0.)

Tex. Comm. On Professional Ethics, Op. 183 (1958)