Honorable Patrick 0. Hardy Opinion No. JM-814
Criminal District Attornay
Room 201, courthouse Re: Whether an individual
Woodville, Texas 75979 may simultaneously serve asp
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. Tax. Const. art.
v, 515. The county court has appellate jurisdiction in
criminal cases of which justice courts and other inferior
courts have original jurisdiction. Gov't Code 526.046. 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 529.003(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 aame juris-
diction as the constitutional county courts, it has not
established one in Tyler County. Tex. Const. art. V, §l;
Gov't Code 925.0003 (enacted by Acts 1987, 70th Leg., ch.
148, 54.01, at 1218). m Gov't Code 5525.0051-25.2512
(enacted by Acts 1987, 70th Leg., ch. 148. 94.01, 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 Grim. Proc. art. 45.03.
However, article V, section 11, of the Texas Constitution
p. 3654
Honorable Patrick 0. Hardy - Page 2 (JM-814)
provides that "[n]O judge shall sit in any case . . . when
he shall have been counsel in the case." See also Code
trim. 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 582.064(b) (formerly Gov't Co&, S:;.Ep3(b);
renumbered by Acts 1987, 70th Lag., ch. at
1216). A city attorney ordinarily renresents 'the'citv in
litigation. h M, 5 S.W.Zd -257
(Tex. Civ. ADD. - Dallas 1928. writ ref’d) (nrovision in
city chartarT; If a city attorney serves hs &unty 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 prohib'itions 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 nay 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
p, 3655
Honorable Patrick 0. Hardy - Page 3 (JM-81.4)
judge, together with the absence of county
Courts at law in Tyler County, render it
impossible for one person to perform the
dutiee of both positions.
JIM MATTOX
Attorney General of Texas
MARYKELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Aseistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 3856