                                 The Attorney          General of Texas
                                                    garch 20. 1986
JIM MAlTOX
Attorney General



Supreme Court Building           Eonorablc Stephen C. Howard            opinion No. 3%455
P. 0. BOX 12548                  Orange County Attorney
A”3,h.Tx.   78711.2549           Courthouse                             Re: Whether section 45.281(d)
5121475-2501
                                 Orange, Texas   7'1630                 of the Government Code prohib-
Telex 910/874-1367
Telecopier   51214750266
                                                                        iting   the   private practice
                                                                        of law by the Orange County
                                                                        Attorney, contravenes the equal
714 Jackson. Suite 700
                                                                        protection provisions of the
Dallas, TX. 75202.4509
2141742.9944
                                                                        state and federal constitutions

                                 Dear Mr. Howard:
4924 Alberta Ave.. suite   160
E, Paso. TX. 79905.2793               You ask whet:hur section 45.?81(d) of the Government Code which
915/533-m                        prohibits the Oran;seCounty Attorney and his assistants from engaging
                                 in the private practice of law is a denial of equal protection under
,001 Texas. Suite 700            both the state antifederal Constitutions. We conclude that it is not.
Houston,TX.  77002-3111
71312235896                           Section 45.2:s:L
                                                     of the Government Code provides:

                                              (a) Orange County, in which the county attorney
606 Broadway. Suite 312
L”bbock,Tx.  79401.3479
                                           performs the duties of a district attorney, is
9CW47.5239                                 entitle1 to receive annually from the state an
                                           amount esqualto the compensation paid by the state
                                           to district attorneys. The compensation from the
 4309 N. Tenth, Suite B
 MCAlk”. TX. 79501-1695
                                           state $,hallbe paid into the salary fund of the
 512M2-4547                                county Lo equal monthly installments.

                                              (b) The county attorney of Orange County is
 200 Main Plaza, Suite 400
                                           entitled to receive as compensation an amount at
 San Antonio. TX. 782052797
 512'225-4191
                                           least equal to the amount paid to the county by the
                                           state cnder Subsection (a) and any additional
                                           amount that the commissioners court of the county
 An Equal OppOriUnitYl                     sets ss adequate compensation for the county
 Affirmative Action Employer               attorney.

                                              (c) IOrange County is not entitled to receive
                                           state Eunds under Subchapter C, Chapter 41, in
                                           addition to the state compensation provided by
                                           Subsection (a).

                                              (d) 'The county attorney and assistant county
                                           attorneys may not engage in the private practice of
                                           law axtspt in civil matters involving the county.



                                                            p. 2070
Honorable Stephen C. Rowartl- Page 2   (JM-455)




          This subsection does not prohibit the commissioners
          court from employing end compensating the county
          attorney to repreisentthe county in civil and con-
          demnation cases. (Emphasis added).

This statutory provision was enacted in 1969 as article 3887a-1,
V.T.C.S., with population brackets that applied only to Orange County
et that time.  See Acts 1969, 61st Leg., ch. 755, at 2213. In both
1971 and 1981. the   legislature amended article 3887a-1 so that it
continued to apply to Orange County. See Acts 1971, 62nd Leg.. ch.
266, §I, at 1161; Acts 19'11..62nd Leg..-.   542. 5120, at 1847; Acts
1981, 67th Leg., ch. 23'f!,9106, at 586. Finally, in 1985, the
Sixty-ninth Legislature, la an act relating to nonsubstantive revision
of statutes relating to the judiciary, recodified article 38878-1,
V.T.C.S., as section 45.281 of the Government Code. See Acts 1985,
69th Leg., ch. 480. §45.:!111, at 3897. The prohibitionagainst the
private practice of law by the county attorney and his assistants has
remained a part of the provision from its inception.

     It is your contenrion that section 45.281(d), which prohibits the
Orange County Attorney and his assistants from engaging in the private
practice of law, Is a dental of equal protection under either article
I, section 3 of the Texas Constitution or the Fourteenth Amendment to
the United States Constitution. The courts have applied the federal
standard in considering both the state and federal constitutional
provisions. S rin Branch Independent School District v. Stamos, 695
S.W.2d 556, -E8---
             560 Tex. 1985); Detar Rospital, Inc. v. Estrsda, 694
                       *_
S.W.2d 359. 365 (Tex. ADD.  - Cornus Christ1 1985. no writ>. Thus. we
must evaluate the legislative classification by applying a two tier
analysis. Set Clements v. Fashing. 457 U.S. 957, 963 (1982); see also
Detar llospital,Inc. v. Qtrada, a,      at 365. If the classiflcarion
involves a fundamental r:;:htor a suspect class, the state bears a
heavy burden to justify the classification. But if these rights or
interests are absent from the classification, the state need only show
that the basis for the classification was reasonably related to the
legislative purpose. See;:lements v. Fashing, supra, at 963; see also
University Interscholastic League v. North Dallas Chamber of Commerce
Soccer Association, 963 SrW.2d 513. 517 (Tex. App. - Dallas 1985, no
writ). We are of the opinion that there is no fundamental right or
suspect class involved under the circumstances presented to us.

     A public official does not have a fundamental right to maintain a
private practice of law during his term of office. The Fifth Circuit
Court of Appeals has held that a university which employs attorneys as
faculty membsrs "may decfde to forbid the practice of law to every
member of Its faculty." 'leeTrister v. University of Mississippi, 420
F.2d 499, 504 (5th Cir. '?K9); see also Gosney v. Sonora Independent
School District, 603 F.2d 522, 526 (5th Cir. 1979). Bence, a person
has no constitutional r,ight to engage in the unlimited private
practice of a professi,on while holding a public position of
employment. We believe l:hat this rule is particularly spplicable to



                                  p. 2071
Ronorable Stephen C. Howard:- Page 3   (JM-455)




public officials who are leutrustedwith a higher duty to the citizens
of the state.   Therefore, we must decide whether the basis for the
state legislature'8 prohlbition of the Orange County Attorney and his
assistantsfrom the private practice of law is reasonably related to
the object and goals of the~~~state. In order to make this
determination, it is necessary to understand the nature and function
of the Orange County Attorney and his assistant8 within the Texas
criminal justice system.

     A8 a preliminary mat.ter, section 45.281 of the Government Code
was enacted pursuant to article V. section 1 of the Texas Constitution
which provides in part:

             The Legislator; may establish such other courts
          as it may deem necessary and prescribe the juris-
          diction and org+zation   thereof. . . . (Emphasis
          added).

This constitutional proviflionhas been construed to include the office
of district attorney. H;urris County v. Crooker. 248 S.W. 652, 653
(Tex. 1923). The legisi&re     has been.given broad discretion under
the provision to prescr~lbe the organization and function of the
offices of county attorney, district attorney, and criminal district
attorney within a judicia:.district. See Neal v. Sheppard, 209 S.W.2d
388, 390 (Tex. Civ. App. - Texarkana?48,      writ ref'd). A statute
enacted pursuant to arti::te V, section 1 of the Texas Constitution
presenting the organizatj.aa of the office of county attorney is an
authorized exception to the constitutional prohibition against
ensctments of local and c'peciallaws. Jones v. Anderson, 189 S.W.2d
65, 66 (Tu. Civ. App. - !:anAntonio 1945, writ ref'd . Consequently,
section 45.281, which onrg applies to Orange County and prohibits the
Orange County Attorney.antlhis assistants from the private practice of
law is a valid local and special law expressly authorized by article
V, section1 of the Texas Constitution.

     finder the authority of article V, section 1 of the Texas
Constitution, the state legislature has created various judicial
districts. In each judici.sldistrict there is e prosecuting attorney
who represents the stat% in criminal proceedings. See Brady v.
Brooks, 89 S.W. 1052, 1056 (Tex. 1905); see also 31G.          Jur. 3d
District and Municipal Attorneys 520. The prosecutor-la1function is
performed in the varloull judicial districts by either a district
attorney, criminal distri,:tattorney, or a county attorney. See Tex.
Const. art. V, $21. The office of district attorney is a cztitu-
tional office, which is nn officer of the state end the court. See
Lackey v. State, 190 S.$'.2d 364, 365 (Tex. Grim. App. 1945). The
office of district attomcty has been interpreted to include the office
of criminal district atl:omey. See RI11 County v. Sheppard, 178
S.W.2d 261, 263 (Tex. 1944). However, there can he no criminal
district attorney when the legislature has authorized a county
attorney to perform the prosecutorial function in a particular county.



                                 p. 2072
Eonorable Stephen C. lioward- Page 4   (JM-455)




See Tex. Conat. art. V. 121. Beuce, the legislature has required the
county attoruey of Orange County to perform the prosecutorial function
within Orange County. See Gov’t. Code 145.281. Consequently, each
judicial district is orG,iaed differently in order to ensure the
efficient and effective aductnistratiouof justice.

       While it is true that, not every district. county, or criminal
district attorney is prohibited from engaging In the private practice
of law, we are of the opir,ionthat the legislative derenainatlon to
prohibit the Orange County Attorney and his assistants from engaging
In the private practice of law is reasonable and well within the
constitutional power of the legislature, since every judicial district
is organized pursuant to a spatial legislative enactment. See Gov’t.
Code, 0624.001 et seq. There is a legitimate legislative purpose in
preventing the private practice of law in some districts while
allowing it in others. ‘Cl:is reasonable for the legislature to
prevent the private practice of law in those districts when such a
practice will interfere wiill the efficient and effective administra-
tion of justice. The Orange County Attorney is not the only public
official performing a prosecutional function within a judicial
district which is prohibite’dfrom maintaining a private practice of
law.     See Gov’t. Code $4&..143(c) (Collin County criminal district
attornez     Gov’t. Code 54,1,157(g) (Dallas County criminal district
attorney) ; Gov’t. Code 143.180(g) (Harris County district attorney);
Gov’t. Code 144.161(g) (Denton County criminal district attorney);
Gov’t. Code 144.221 (Jasper County criminal district attorney). In
addition, the legislature has prohibited all those attorneys under the
Professional Prosecutors Act from engaging in the private practice of
law. See Gov’t. Code 114t.001, et seq. We cannot presume that the
legislature has acted unrezlsonablyor arbitrarily in determining that
a separate private practlc,:of law by the Orange County Attorney and
hia.assistants will hinder ,theeffective and efficient administration
of justice in the 128th J~.d.icial.Dlstrict.See Detar Hospital, Inc.
v. Estrada, w,        at 361~. Moreover, a state may apply different
lCiWS,   or its laws dlfferemtlv. to reasonable classes of persons
without vlolatlnn the eaual -drotection clause of the Fourteenth
Amendment. See Railroad
                   -       ;:ommission of Texas v. Miller, 434 S.W.2d
670. 673 (Texy968).     The :.mendmentprohibits a legislature only from
treating differently persons who are “similarly situated” differently.
See Ylck Wo v. Eopkins, 1.18U.S. 356, 374 (1886). Accordingly, we
conclude that section 45.281(d) of the Government Code does uot deny
the Orange County Attorney (andhis assistants the equal protecclon of
the law under either the sc:ate or federal Constitution.

                             SUMMARY

             Section 45.2El of the Government Code which
          prohibits the Orange County Attorney    and his
          assistants from engaging in the private practice
          of law is not a (denialof equal protecciou under
          either article I, section 3 of the Texas


                                 p. 2073
Honorable Stephen C. Eoward .-Page 5     (m'45S)




          Constitution or the Fourteenth Amendment to the
          United States Comtltution.   A public official or
          employee does mt    have a fundamental right to
          maintain a private practice of law during his term
          of office.

             There is a legitimate legislative purpose In
          preventing the private practice of law in soee
          judicial districts while allowing it in others.
          It is reasonable for the legislature to prevent
          the Orange County Attorney and his assistants from
          engaging in the private practice of law to ensure
          the efficient and effective administration of
          justice within the judicial district.

                                        Jzyu

                                                  MATTOX
                                          Attorney General of Texas

JACK HIGHTOWER
First Assistant   Attorney Gc,neral

MARY KELLER
Executive Assistant Attornc:yGeneral

ROBERT GRAY
Special Assistant Attorney General

RICE GILPIN
Chairman, Opinion Committee

Prepared by Tony Guillory
Assistant Attorney General




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