ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 282003
The Honorable Tempie T. Francis Opinion No. GA-0094
Motley County Attorney
P-0. Box 7 Re: Whether a county attorney who is not subject
Matador, Texas 79244 to the Professional Prosecutors Act may maintain
more than one private civil practice office
(RQ-0033-GA)
Dear Ms. Francis:
You ask whether a county attorney who is not subject to the Professional Prosecutors Act
may maintain more than one private civil practice office.
Chapter 46 of the Government Code, the Professional Prosecutors Act, “applies to all county
prosecutors.” TEX. GOV’T CODE ANN. 9 46.002 (Vernon Supp. 2003). Section 46.005 provides, in
relevant part:
(a) A state prosecutor may not engage in the private practice of law
but may complete all civil cases that are not in conflict with the
interest of any of the counties of the district in which the prosecutor
serves and that are pending in court before the prosecutor takes office.
(c) This section applies to a county prosecutor and any assistant of
a prosecutor if, from all state and county funds received, the county
prosecutor or assistant receives a salary that is equal to or more than
80 percent of the benchmark salary.
Id. 8 46.005(a), (c). “Benchmark salary” is defined as “the salary that is provided for a district judge
in the General Appropriations Act.” Id. 0 46.001(2). The “benchmark salary” for a district judge
for the 2002-03 biennium is $101,700. See General Appropriations Act, 77th Leg., R.S., ch. 1515,
art. IV-18,200l Tex. Gen. Laws 5411, 5935. The benchmark salary for the 2004-05 biennium is
also $101,700. See General Appropriations Act, Conference Committee Report, Tex. H.B. 1,78th
Leg., R.S., art. IV-26 (2003), available at http://www.lbb.state.tx.us/Bill 7816 Conf/Bill-78 6.htm.
The Honorable Tempie T. Francis - Page 2 (GA-0094)
You indicate that you are the elected county attorney of Motley County. You further state
that your total salary is $38,950 per annum.* An annual salary of $38,950 is approximately 38.3
percent of the benchmark salary. Your salary is therefore not “equal to or more than 80 percent of
the benchmark salary’ denoted in section 46.005(c) of the Government Code. As a result, section
46.005 is not applicable to you, and you are entitled to engage in the private practice of law.
You ask whether you may maintain a private civil practice office in both Motley and Floyd
Counties. No provision of chapter 46, or any other statute, limits the number of such offices to one.
Nor do the statutes place any limitation on the location of those offices. Where the language of a
statute is clear, we need not look to extrinsic evidence of the legislature’s intent. See Fitzgerald v.
Advanced Spine Fixation, 996 S. W.2d 864,864 (Tex. 1999). Because you are a county attorney who
is not subject to the Professional Prosecutors Act, you may maintain more than one private civil
practice office, and you may maintain an office in more than one county.
‘Letter fromHonorable Tempie T. Francis, Motley County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Mar. 24,2003) (on file with Opinion Committee).
The Honorable Tempie T. Francis - Page 3 (GA-0094)
SUMMARY
A county attorney who is not subject to the Professional
Prosecutors Act may maintain more than one private civil practice
office and may maintain an office in more than one county.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee
Untitled Texas Attorney General Opinion
Combined Opinion