ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 26,2004
The Honorable Tempie T. Francis Opinion No. GA-0241
Motley County Attorney
Post Office Box 7 Re: Whether an attorney appointed county attorney
Matador, Texas 79244 pro tern is disqualified from acting as criminal
defense counsel in an adjoining county under Code
of Criminal Procedure article 2.08 (RQ-0190-GA)
Dear Ms. Francis:
Article 2.08 of the Code of Criminal Procedure states: “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.” TEX. CODE GRIM. PROC. ANN. art. 2.08 (Vernon 1977). You ask a number of
questions, the essence of which is whether the disqualification in article 2.08 applies to an attorney
who has been appointed county attorney pro tern in individual cases, but who in fact performs all of
the functions and duties of a constitutional county attorney.’
You state that an attorney appointed county attorney pro tern in an adjoining county
represents criminal defendants in Motley County. Although you do not elaborate, you state that the
facts are “exactly [as] described” in a letter submitted to this office by Barry L. Macha, Criminal
District Attorney in Wichita County? Consequently, for context, we will assume the facts as related
in the Macha Letter.
The Macha Letter concerned Mr. Paul Scott, an attorney with a general civil and criminal
defense practice in Wilbarger County. Macha Letter, supra note 2, at 1. In 2002, the Baylor County
Commissioners Court approached Mr. Scott about serving as the county’s attorney pro tern. Id.
Baylor County does not currently have an elected county attorney. Id. Mr. Scott agreed to prosecute
all misdemeanors andjuvenile matters for Baylor County for $2600 per month, with the arrangement
terminable at will by either party. Id. at 1,3. It is unclear whether the Baylor County Commissioners
‘See Letter from Honorable Tempie T. Francis, Motley County Attorney, to Nancy Fuller, Chair, Opinion
Committee, Office of the Attorney General (Mar. 4, 2004) (on file with Opinion Committee, also available of
http://www.oag.state.tx.us) [hereinafter Request Letter].
2SeeLetterfromHonorableBarryL. Macha, WichitaCounty CriminalDishictAttomey, to OpinionCommittee,
Off& of the Attorney General (Feb. 24,2004) (on tile with Opinion Committee) [hereinafter Macha Letter].
The Honorable Tempie T. Francis - Page 2 (GA-0241)
Court issued a general order appointing Scott as “Baylor County Attorney Pro Tern,” but in each case
Scott tiled a copy of his oath and a court order appointing Scott as county attorney pro tern for that
case. Id. at 1. ARer entering into this arrangement with Baylor County, Scott continued his criminal
defense practice in counties other than Baylor County? Id at 4.
All of your questions revolve around two issues: (1) whether, as a matter of statutory
construction, the disqualification in article 2.08 applies to an attorney who has been appointed county
attorney pro tern in individual cases; and (2) whether the disqualification in article 2.08 applies to
an attorney who does not hold the office of constitutional county attorney but who has assumed all
of the functions and duties of that office. See Request Letter, supra note 1, at 1-2.
I. Amlicable Law
The prohibition of article 2.08 expressly applies to “[d]istrict and county attorneys.” Under
the Texas Constitution, the office of county attorney is a four-year elected position. TEX. CONST.
art. V, § 21. If the position is vacant, the county commissioners court may appoint a county attorney
to serve until the next general election. Id. Generally, county attorneys represent the state in district
and inferior courts, but when the county is in a district having a district attorney, the county
attorney’s duties are regulated by the Legislature. Id. Baylor County is located in the 50th Judicial
District, and is served by a district attorney. TEX. GOV’T CODEANN. $5 24.152(a), 43.129 (Vernon
2004). However, the Government Code provides for a Baylor County county attorney, who
represents the state in misdemeanor cases. Id. 5 45.112.
Some county attorneys are prohibited from engaging in a private civil or criminal law practice
by chapter 46 ofthe Government Code, the Professional Prosecutors Act. Id. $5 46.001-,007. The
act “applies to all county prosecutors.” Id. 5 46.002. A “countyprosecutor”under the act is defined
as “a constitutional county attorney who does not have general felony jurisdiction and who is not a
state prosecutor.” Id. 5 46.001(l). A county attorney who receives a salary in excess of a statutory
benchmark, and such a county attorney’s assistants, may not engage in the private practice of law.
Id. 5 46.005(a), (c). County attorneys who do not receive a salary in excess of the benchmark are
not subject to the prohibition in the Professional Prosecutors Act against maintaining a private law
practice. See Tex. Att’y Gen. Op. No. GA-0094 (2003) at 3.
By statute, a court may appoint a substitute for an attorney for the state on a pro tern, or
temporary, basis. Article 2.07 of the Code of Criminal Procedure provides for the terms of the
appointment:
‘This office receiveda request for an opinion on this issue from Mr. Scott. See Letter from Paul Scott, Baylor
County Attorney Pro Tern,, to Office of the Attorney General (Oct. 3 1,2003) (on file with Opinion Committee). This
office closed the tile without an opinion because the issue was before a trial court on a motion to disqualify Mr. Scott.
This office generally does not render opinions on matters that are in litigation before the courts. See Tex. Att’y Gen. Op.
Nos. GA-0182 (2004) at 3, JM-803 (1987) at 5. You have informed us that Mr. Scott withdrew as counsel before the
trial court rendered a decision, and that the matter is no longer the subject ofpending litigation. Request Letter, supra
note 1, at l-2.
The Honorable Tempie T. Francis - Page 3 (GA-0241)
(a) Whenever an attorney for the state is disqualified to act in
any case or proceeding, is absent from the county or district, or is
otherwise unable to perform the duties ofhis office, or in any instance
where there is no attorney for the state, the judge of the court in which
he represents the state may appoint any competent attomeyto perform
the duties of the office during the absence or disqualification of the
attorney for the state.
(b) Except as otherwise provided by this subsection, if the
appointed attorney is also an attorney for the state, the duties of the
appointed office are additional duties of his present office, and he is
not entitled to additional compensation. Nothing herein shall prevent
a commissioners court of a county from contracting with another
commissioners court to pay expenses and reimburse compensation
paid by a county to an attorney for the state who is appointed to
perform additional duties.
(b-l) An attorney for the state who is not disqualified to act
may request the court to permit him to recuse himself in a case for
good cause and upon approval by the court is disqualified.
(c) Ifthe appointed attorney is not an attorney for the state, he
is qualified to perform the duties of the office for the period of
absence or disqualification of the attorney for the state on filing an
oath with the clerk ofthe court. He shall receive compensation in the
same amount and manner as an attorney appointed to represent an
indigent person.
(d) In this article, “attorney for the state” means a county
attorney, a district attorney, or a criminal district attorney.
(e) In Subsections (b) and (c) of this article, “attorney for the
state” includes an assistant attorney general.
(f) In Subsection (a) of this article, “competent attorney’
includes an assistant attorney general.
(g) An attorney appointed under Subsection (a) of this article
to perform the duties of the office of an attorney for the state in a
justice or municipal court may be paid a reasonable fee for
performing those duties.
TEX. CODE GRIM. PROC. ANN. art. 2.07 (Vernon Supp. 2004).
The Honorable Tempie T. Francis - Page 4 (GA-0241)
Under article 2.07(a), a court may appoint an attorney to assume county attorney duties pro
tern when the county attorney “[ l] is disqualified to act in any case or proceeding, [2] is absent from
the county or district, or is otherwise unable to perform the duties ofhis office, or [3] in any instance
where there is no attorney for the state.” Id. art. 2.07(a). The last circumstance, when there is no
attorney for the state, does not authorize a judicial court to till a vacancy by appointing an acting
county attorney, because that would usurp the commissioners court’s constitutional appointment
authority. SeeMoorev. State, 119 SW. 858,859 (Tex. Crim. App. 1909); see also Tex. Att’yGen.
Op. No. JM-1246 (1990) at 3 (court may not appoint a district attorney pro tern to till a vacancy in
derogation of the governor’s constitutional appointment authority). An attorney pro tern assumes
the duties and authority of the regular prosecuting attorney, “and in effect replaces the latter in
performing germane functions of officeforpurposes contemplated by the appointment.” State v.
Rosenbaum, 852 S.W.2d 525, 529 (Tex. Crim. App. 1993) (Clinton, .I. concurring) (emphasis
added); see also Stephens v. State, 978 S.W.2d 728,731 (Tex. App.-Austin 1998, pet. ref d).
II. Analvsis
Article 2.08 of the Code of Criminal Procedure prohibits a county attorney fTom appearing
“of counsel adversely to the State in any case, in any court .” TEX. CODE GRIM. PROC.ANN. art. 2.08
(Vernon 1977). The stricture prevents a county attorney from representing a party adverse to the
state in any court in the state. Exparte Ramsey, 642 S.W.2d 483, 484 (Tex. Crim. App. 1982)
(article 2.08 would preclude a county attorney t?om appearing in a court of another county to
challenge a contempt order). Representing a criminal defendant constitutes being “of counsel
adversely to the State.” Id. (stating as a general rule that a county attorney’s “representation of a
defendant in a criminal case may normally fall within the general provisions of Chapter Two”).
No reported court decision has determined whether article 2.08 would also apply to an
attorney appointed as a county or district attorney pro tern. Although an attorney appointed county
attorney pro tern performs the duties of that office, and for purposes of the appointment replaces the
county attorney, the constitutional office of county attorney and a pro tern appointment under article
2.07 of the Code of Criminal Procedure are distinct. See Tex. Att’y Gen. Op. No. GA-0005 (2002)
at 3 (pro tern attorney appointed for specific case does not have authority to alter terms of local
agreement on forfeited property). By its plain terms, article 2.08 disqualifies district and county
attorneys, i.e., constitutional district and county attorneys, from acting as counsel adversely to the
state in any court. Attorneys appointed pro tern to perform the duties of a county or district attorney
are not included. Although the Legislature could have written article 2.08 to also apply to an
attorney appointed pro tern, it did not do so. We may “add words into a statutory provision only
when necessary to give effect to clear legislative intent.” Fitzgerald v. Advanced Spine Fixation
Sys., Inc., 996 S.W.2d 864,867 (Tex. 1999). Moreover, we may consider the consequences of a
particular construction and will presume a feasible result was intended. See TEX. GOV’T CODEANN.
55 311.021(2)-(4), ,023 (Vernon 1998). If an attorney who accepts even one pro tern appointment
for a single case cannot engage in criminal defense in any court in the state, then article 2.08 would
effectively exclude the most qualified private attorneys ~ those with an ongoing defense practice -
from accepting any pro tern appointments. Consequently, we conclude that article 2.08 applies to
The Honorable Tempie T. Francis - Page 5 (GA-0241)
county attorneys under the constitution, but not to attorneys appointed to perform the duties of the
office pro tern.
Under the constitution and the statutes, whether an appointed attorney is a constitutional
county attorney (and therefore subject to article 2.08) depends on the source of the appointed
attorney’s authority. Under article V, section 21, the county commissioners court has the authority
to appoint a county attorney to till a vacancy until the next general election. See TEX. CONST. art.
V, § 21. Neither the constitution nor statutes authorize a commissioners court to appoint a county
attorney on an “at will” basis, Nor does a commissioners court have the authority to appoint a
county attorney pro tern under article 2.07 of the Code of Criminal Procedure; that authority belongs
to the judicial courts. See TEX. CODE CNM. PROC. ANN. art. 2.07(a) (Vernon Supp. 2004). The
judicial court also would not have the authority to appoint an acting county attorney, but it would
have the authority to appoint a county attorney pro tern in individual cases, as was apparently done
as described in the Macha Letter. See Tex. Att’y Gen. Op. No. JM-925 (1988) at 6.4 Consequently,
the attorney described in the Macha Letter would not be a constitutional county attorney.
You have suggested that an attorney appointed county attorney pro tern who performs all
duties of a constitutional county attorney should be considered a “de facto” constitutional county
attorney and subject to the prohibition in article 2.08. Request Letter, supra note 1, at 2. To
illustrate your point you cite the circumstances described in the Macha Letter, which we agree are
not consistent with either the office of county attorney under article V, section 2 1 of the constitution,
or with a pro tern appointment under article 2.07. Under the constitution, a county attorney must
either be elected or appointed to serve until the next general election. TEX. CONST. art. V, 8 21. On
the other hand, an attorney pro tern must be compensated “in the same amount and manner as an
attorney appointed to represent an indigent person,” not by a monthly or annual salary. See TEX.
CODE GRIM. PROC. ANN. art. 2.07(c) (Vernon Supp. 2004).
The de facto offtcer doctrine has been used to preclude a defendant appealing a conviction
from collaterally attaching the prosecutor’s authority to prosecute. See Cook v. State, 176 S.W.2d
941,943 (Tex. Crim. App. 1944). However, no court has applied that doctrine to disqualification
under article 2.08. To apply the doctrine here would require, as a matter of first impression, that we
(1) construe article 2.08 as disqualifying “de facto” county attorneys and (2) formulate a standard
for ascertaining whether a pro tern appointee has become a “de facto” county attorney. We believe
that a court would reject such an expanded construction of article 2.08, and instead determine
whether a county attorney pro tern is disqualified from criminal representation by applying
professional conflict of interest principles. See, e.g., TEX. DISCIPLINARY R. PROF’L CONDUCT
1.06(b)(2), reprinted in TEX. GOV’TCODEANN., tit. 2, subtit. G app. A (Vernon 1998) (TEx. STATE
BAR. R. art. X, 9 9) (requiring an attorney to determine whether representation of one client
“reasonably appears to be or become[s] adversely limited by the lawyer’s or law firm’s
responsibilities to another client”). We note that although the Texas Supreme Court’s Professional
‘In AttorneyGeneralOpinionJM-925,thisoffice determined thata countyattorneyof one countyservingas
countyattorneypro ternin anothercountypursuant to aninterlocalagreement hadthedutyto signaninformation that
initiates prosecution. It is unnecessary for us to revisit that issue here.
The Honorable Tempie T. Francis - Page 6 (GA-0241)
Ethics Committee has extended the prohibition against practicing criminal law to partners and others
associated with a county or district attorney, it has not done so on the basis of a construction of the
language of article 2.08, but on the basis of professional ethics rules and canons. See, e.g., Tex.
Comm. on Prof 1 Ethics, Gp. 539,65 TEX. B.J. 368 (2002), Op. 419,47 TEX. B.J. 1370 (1984), Gp.
345 (1968), Op. 318 (1966). Under the disciplinary rules, whether a pro tern appointment conflicts
with a particular criminal representation would be determined under the circumstances. See Tex.
Comm. on Prof 1 Ethics, Gp. 345 (1968) (concluding that disqualification of a former assistant
district attorney must be decided on circumstances of the particular case).
The Honorable Tempie T. Francis - Page 7 (GA-0241)
SUMMARY
Article 2.08 of the Code of Criminal Procedure does not
disqualify an attorney appointed by a court as county attorney pro tern
from representing criminal defendants in an adjoining county.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee