May a Texas County Judge practice law in the County Court-at-Law, and can he keep handling probate matters pending in his own county court?

Plain-English summary

The inquiry asked whether a County Judge could practice in the County Court-at-Law (both in the same county), whether he could try cases pending on his docket before his appointment, and whether he could transfer pending probate matters to the County Court-at-Law and remain the attorney in them.

The Committee answered that Article 319 of the Revised Civil Statutes and Articles 402 and 403 of the Penal Code govern where a County Judge may practice law, that the inquiry called for interpretation of those statutes, and that it could not be answered by interpreting the Canons of Ethics because none specifically applied (8-0). Noting it is not the committee's duty to interpret statutes, the Committee pointed to Attorney General Opinion No. 6946 (1945), which ruled that a County Judge may practice in any county or justice court except in cases where the court over which he presides has original or appellate jurisdiction. Because the probate matters were pending in the County Court, which apparently had original jurisdiction over them, the County Judge seemingly could not handle them in the County Court-at-Law, regardless of a transfer. As to other matters, the Committee said the question could not be answered in the abstract, because the County Court-at-Law is sometimes given concurrent and sometimes exclusive jurisdiction, and for this purpose concurrent jurisdiction should be equated to original jurisdiction.

Currency note

This opinion was issued in 1959, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The statutes the opinion relied on (Article 319 of the Civil Statutes; Articles 402 and 403 of the Penal Code) have since been revised or recodified. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does a bar ethics committee decide whether a County Judge may practice law in another court?

A: Under this opinion, no. The Committee held that question is governed by statute (Art. 319, Civil Statutes; Arts. 402 and 403, Penal Code), not by any Canon, and that interpreting statutes is not the committee's role.

Q: Can a County Judge move pending probate matters to the County Court-at-Law and stay on as attorney?

A: The Committee indicated apparently not. Citing Attorney General Opinion No. 6946 (1945), it reasoned that because the probate matters were pending in the County Court, which apparently had original jurisdiction, the judge seemingly could not handle them in the County Court-at-Law regardless of a transfer.

Q: What about other cases pending in the County Court-at-Law?

A: The Committee said that could not be answered in the abstract, because the County Court-at-Law is sometimes given concurrent and sometimes exclusive jurisdiction, and for this purpose concurrent jurisdiction should be treated like original jurisdiction.

Background and rules framework

The Committee identified no applicable Canon of Ethics. It pointed instead to Article 319 of the Revised Civil Statutes and Articles 402 and 403 of the Penal Code, which regulate a County Judge's private practice, and to Attorney General Opinion No. 6946 (1945). Because no Rule of Professional Conduct is engaged, no Model Rule analog is drawn here.

Citations and references

Statutes:

• Article 319, Texas Revised Civil Statutes (private practice of a County Judge)
• Articles 402 and 403, Texas Penal Code (private practice of a County Judge)

Cases:

• Acree v. State, 47 S.W.2d 907 (Tex. Civ. App. 1932, error dism'd), concurrent versus exclusive jurisdiction of the County Court-at-Law

Other opinions cited:

• Texas Ethics Opinions 13, 151, 173, and 184
• Texas Attorney General Opinion No. 6946 (1945)

See also

• TX Ethics Op. 217: County Attorney Defending in a Support Case
• TX Ethics Op. 226: County Attorney Interviewing a Jailed Accused
• TX Ethics Op. 232: Highway Commissioner Defending a State Suit

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-220/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_220.pdf

Original opinion text

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

QUESTION PRESENTED

May a County Judge practice in the County Court-at-Law, both courts being in the same county? If so, may he try cases that he had pending on the docket before his appointment to County Judge?
May the County Judge transfer to the County Court-at-Law any probate matters that he has pending, and continue to be the attorney in the probate matters?

18 Baylor L. Rev. 303 (1966)

COUNTY JUDGE IN PRIVATE PRACTICE - EMPLOYMENT
Art. 319 (Rev. Civ. Stat.) and Arts. 402 and 403 (Penal Code) regulate the private practice of a County Judge before other courts. No Canon of Ethics is specifically applicable, and it is not the duty of the committee to interpret statutes. However, a County Judge apparently may not transfer to the County Court-at-Law probate matters then pending before the County Court and continue to act as attorney in the probate matters.

Art. 319, Civil Statutes; Arts. 402 403, Penal Code.

Article 319 of the Revised Civil Statutes of Texas and Articles 402 and 403 of the Penal Code are applicable to the question where a County Judge may practice law. The inquiry herein contained calls for an interpretation of these statutes and cannot be answered by interpretation of the Canons of Ethics since none specifically applies. (8-0.)

It is not the duty of the committee to interpret statutes. However, attention is invited to Opinion No. 6946 (1945) of the Attorney General of Texas, wherein the ruling was made that a County Judge has authority to practice law in any county or justice court except in those cases where the court over which he presides has either original or appellate jurisdiction. If the County Court in question has original jurisdiction over the matters in question, the County Judge may not handle them in the County Court-at-Law. Since the probate matters are now pending in the County Court, that court apparently has original jurisdiction as to those matters and the County Judge seemingly cannot handle them, regardless of transfer to the County Court-at-Law.

As related to other civil or criminal matters pending in the County Court-at-Law, the inquiry cannot be answered in the abstract. As to some matters the County Court-at-Law is sometimes given concurrent jurisdiction with the County Court, and sometimes it is given exclusive jurisdiction. (See, e.g., Acree v. State, 47 S. W. 2d 907 (Text Civ. App. 1932, error dism'd) ). For this purpose "concurrent" jurisdiction seemingly should be equated to "original" jurisdiction.

See also Opinions 13, 151, and 173. See generally Opinion 184.

Tex. Comm. On Professional Ethics, Op. 220 (1959)