Can a county attorney interview an arrested person in jail to decide whether to prosecute and to testify at trial, when someone else in the office tries the case?

Plain-English summary

A county attorney or assistant left instructions with arresting officers to be called when someone was arrested for driving while intoxicated, so the official could see and talk with the accused in jail for the purpose of testifying at trial. At trial, a different lawyer in the office was assigned to prosecute. The inquiry asked whether this practice violated the Canons.

The Committee, addressing Canons 5, 9, and 16, did not reach a single unified holding but produced a headnote stating the practice is proper provided the arrested person does not have an attorney at the time of the conversation. Three members found no violation, resting on Canon 16, which generally bars a lawyer from appearing as a witness for his client except in certain circumstances; one of them read Canon 16 as applying only to civil cases. Those members reasoned the procedure was permissible so the county attorney could determine whether to prosecute, and that if his testimony later proved necessary at trial, nothing in the Canons precluded it. Another member concurred provided the accused had no attorney (4-2).

That member, joined by two others, concluded that talking with the accused violates Canons 5 and 9 if the accused already has an attorney, citing Opinions 137 and 144 (3-3). All members agreed it was reasonable for the county attorney to determine for himself whether to prosecute. Two members thought he could obtain that information without testifying and should give the accused an opportunity to secure counsel; if that opportunity were offered and rejected, the conduct would be proper, but if not offered, the prosecution's natural advantage would violate Canons 5 and 9.

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. 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 Treat this page as historical context, not current guidance.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: Can a prosecutor interview a jailed accused before trial?

A: Under this opinion, the practice is proper provided the accused does not have an attorney at the time, so the county attorney can determine whether to prosecute and, if needed, testify at trial.

Q: What happens if the accused already has a lawyer?

A: The Committee split. Three members concluded that talking with the accused in that situation violates Canons 5 and 9, citing Opinions 137 and 144; the committee divided 3-3 on that point.

Q: Can the interviewing official testify at the trial?

A: Yes, under the members who found no violation. They concluded that Canon 16 did not preclude the official from testifying when some other lawyer in the office is assigned to prosecute the case.

Background and rules framework

The opinion interprets former Texas Canons 5 (defense and prosecution of those accused of crime), 9 (communication with an opposing party), and 16 (a lawyer appearing as a witness). The modern analogs are ABA Model Rule 3.8, on the special responsibilities of a prosecutor, Model Rule 4.2, on communication with a represented person, and Model Rule 3.7, on the lawyer as witness.

Citations and references

Rules of Professional Conduct:

• MR 3.8 (special responsibilities of a prosecutor), as the modern analog
• MR 4.2 (communication with represented persons), as the modern analog
• MR 3.7 (lawyer as witness), as the modern analog
• Texas Canons 5, 9, 16 (former canons)

Other opinions cited:

• Texas Opinions 137 and 144: contact with an accused who has counsel

See also

• TX Ethics Op. 235: Letter to a Represented Plaintiff
• TX Ethics Op. 278: Prosecutor's Letters to Jurors
• TX Ethics Op. 399: Prosecutor From Same Office as Witness
• TX Ethics Op. 332: Prosecutor in a Related Civil Case

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-226/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_226.pdf

Original opinion text

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

QUESTION PRESENTED

A County Attorney or one of his assistants leaves instructions with the arresting police officer of an alleged offense of driving while intoxicated to be called when a person is arrested so that he may see that person and talk with him in jail for the purpose of testifying at the trial for the offense involved. At the trial some person in the office other than the one who will testify is assigned to prosecute the cause. Is there a violation of the Canons of Ethics by the County Attorney or his assistant?

18 Baylor L. Rev. 307 (1966)

PROSECUTION OF THOSE ACCUSED OF CRIME - NEGOTIATIONS WITH OPPOSITE PARTY - COUNTY ATTORNEY TESTIFYING AS TO DIRECT NEGOTIATIONS WITH AN ACCUSED
A County Attorney or his assistant may properly see and talk with a person in jail shortly after his arrest for the purpose of later testifying at the trial for the offense involved, provided the arrested person does not have an attorney at the time of the conversation. At the trial such official may testify when some other person in the office is assigned to prosecute the cause.

Canons 5, 9, 16.

Three members of the committee agree that there is no violation involved, basing their opinion on an interpretation of Canon 16 which prohibits an attorney from appearing as a witness for his client except under certain circumstances. One member concludes that Canon 16 applies only to civil cases, but all of such members believe that this procedure is permissible so that the County Attorney may determine for himself whether the accused should be prosecuted. Then if it later develops in the trial that such official's testimony is needed, there is nothing in the Canons to preclude his testifying. Another member concurs in this result provided the accused does not have an attorney. (4-2.) However, this member joins with two others in concluding that the conduct of the County Attorney or his assistant in talking with the accused violates Canons 5 and 9 if the accused has an attorney at that time. See Opinions 137 and 144. (3-3.)

All members agree that it is reasonable that the County Attorney should be permitted to determine for himself whether the accused should be prosecuted. Two members believe he could obtain this information and still refrain from testifying. They further conclude that the County Attorney should just give the accused an opportunity to secure counsel. If this opportunity is afforded and rejected, the conduct in question would be proper. However, if such opportunity is not offered, the natural advantage of the prosecution is such that Canons 5 and 9 would be violated.

Tex. Comm. On Professional Ethics, Op. 226 (1959)