                                          April 14,1999



The Honorable Raymie Kana                        Opinion No. X-0034
Colorado County Auditor
Courthouse, Third Floor                          Re: Authority of county attorney to provide legal
Columbus, Texas 78934                            services to commissioners court, and related
                                                 questions 014-1137)

Dear Ms. Kana:

         You have asked this office whether a county attorney who is covered by the terms of the
Professional Prosecutors Act, chapter 46 of the Government Code, may perform for the county
ancillary legal services which do not form part of his duties “without charge to the county,” and
whether such a county attorney “can legally enter into an agreement with a municipality to provide
legal advice, opinion, and consultation services for a fee regarding the arrest, docketing, and
disposition of city and State law offenders prosecuted through the municipal court.”

        We begin with a brief review of the statutes applicable to the Colorado County Attorney.
Section 45.145 of the Government Code provides that the Colorado County Attorney “shall perform
the duties imposed on and have the powers conferred on district attorneys by general law.”
TEX. GOV’T CODE ANN. 4 45.145(a) (Vernon Supp. 1999). As this office stated in Letter Opinion
No. 98-26,

           Generally, the Colorado County Attorney, like a district attorney, is required
           to “represent the State in all criminal cases in the district courts of [the
           county] and in appeals therefrom. . .” The Colorado County Attorney also
           is required to represent the state in examining trials and habeas corpus
           proceedings. In addition, the Colorado County Attorney has various duties,
           found in scattered statutes, such as providing legal advice to appropriate
           officials; enforcing certain licensing acts; and challenging public nuisances.

Tex. Att’y Gen. LO-98-26, at 2 (footnotes omitted). Finally, the Colorado County Attorney is one
of the county attorneys made subject to the Professional Prosecutors Act by Government Code
section 46.002(3).

        As to your first question, we conclude that while a county cannot contract for ancillary
services with a county attorney covered by the Professional Prosecutors Act in his private capacity
precisely because such a county attorney may not engage in private practice, we do not believe that
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the law would prevent him from providing such services gratis on a voluntary basis. The decision
whether to offer to provide such services on that basis would, of course, belong to the county
attorney.

        As to your second question, we know of no basis upon which the attorney would have the
authority to enter into such a contract as you describe. If it be argued that he is entering into such
contracts in his private capacity, then he is barred from doing so by chapter 46. If, on the contrary,
the contracts are entered into in his official capacity, he has no authority to enter into them. The
general authority of a county to enter into contracts is vested in the commissioners court. The county
attorney is without authority to enter into such agreements.

        As we understand the background for your questions, the Colorado County Attorney has
taken the view that he is debarred from performing legal services to the county beyond those which
are made his duty by statute. Apparently he reads a letter opinion issued by this office, Letter
Opinion No. 98-26, as mandating this result. In that opinion, we concluded that the county attorney
could not contract with the commissioners court to provide courthouse security.

        We do not agree with the rather expansive reading which the County Attorney gives Letter
Opinion No. 98-26. In our view, the provision of security services, which the opinion declared
beyond the authority of the county attorney and outside the province of his investigator, is
distinguishable from the ancillary legal services which the County Attorney asserts he may not now
perform.

         However, we do note that a particular problem arises with respect to the provision of
ancillary legal services by a county attorney when, as in this case, the attorney is covered by the
Professional Prosecutors Act. The standard treatise on county law, as well as certain attorney
general opinions of this office, have generally asserted that, while the provision of some legal
services to the county was beyond the duty of the county attorney, the commissioners court could
retain the county attorney for such services as a private practitioner:

            [A]s to the county as a legal entity, it is not the duty or responsibility of a
            local prosecutor to “represent the county in its general legal business or the
            conduct of ordinary civil actions.” The exception to this rule is the
            responsibility . to render upon request legal advice and opinions to county
            officials. Numerous authorities have stated that a county commissioners
            court may employ in a private capacity the county or district attorney to
            represent the county in matters for which he is not required by law to provide
            representation.

36 DAVID B. BROOKS,COUNTY AND SPECIALDISTRICTLAW         9 21.14 (citing Hill Farm, Inc. v. Hill
County, 425 S.W.2d 414,419 (Tex. Civ. App.-Waco 1968), affd, 436 S.W.2d 320 (Tex. 1969));
seealso Guynes v. Galveston County, 861 S.W.2d 861,864 (Tex. 1993) (BecauseGalvestonCounty
Criminal District Attorney did not have exclusive duty of civil representation for county,
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commissioners court could establish legal department for “wide-range of duties related to the
county’scivilbusiness.“);Tex. Att’y Gen. Gp.Nos. JM-198 (1984),0-4301(1942), O-3656(1941),
O-864 (1939), O-198 (1939).

        As Attorney General Opinion JM-198 noted in passing, however, this traditional argument
does not fit well with the provisions of the Professional Prosecutors Act. In that opinion, after
affirming that the Victoria County Commissioners Court had the authority to contract with the
Criminal District Attorney in his private capacity to represent the county in condemnation
proceedings which were outside the scope of his official duties, this office noted “that effective
September 1, 1983, the criminal district attorney in Victoria County became a “district attorney”
within the meaning of the Professional Prosecutors Act, which provides that a district attorney
governed by the act may not engage in the private practice oflaw.” Tex. Att’y Gen. Op. No. JM-198
at 3 (1984).

        The situation alluded to in Attorney General Opinion JM- 198 is squarely presented here. The
Colorado County Attorney is covered by the Professional Prosecutors Act. TEX. GOV'T CODEANN.
5 46.002(3) (Vernon Supp. 1999). As such he “may not engage in the private practice of law.        .”
Id. $ 46.005(a). Accordingly, since he cannot engage in private practice, he cannot receive
compensation from the county for providing legal services which do not form part of his statutory
duties.

        We do not, however, agree wholly with the County Attorney’s view that he is “now
mandated to discontinue any extra work I have been doing, as I cannot contract with the County.”
Letter from John Julian Moore, Colorado County Attorney, to Colorado County Commissioners
Court 3 (Apr. 6, 1998) (on file with Opinion Committee). As we have already pointed out, Letter
Opinion No. 98-26 contains no such mandate. Nor, in our view, does the Professional Prosecutors
Act necessarily forbid the County Attorney to provide such services. It does bar the county from
contracting with him in his private capacity to perform them for remuneration. But it does not
appear to us that the Act prevents him from voluntarily and gratuitously providing such services.

         In the words ofthe standard treatise, “The legislature passed the Professional Prosecutors Act
in 1974 for the purpose of improving prosecution in the state by guaranteeing a higher state salary
to local prosecutors and imposing a duty on the commissioners court to provide necessary funds for
the operation of the various local prosecuting offices. In return, the prosecutors subject to the Act
are prohibited from engaging in any form of private practice, or accepting referral fees.” BROOKS,
sup-a, 9 21.44 (footnotes omitted). The principal concern of the prohibition on private practice is
that the prosecutor not be spending his time attending to the business of private clients rather than
public business. Accordingly, we interpret “the private practice of law,” for the purposes of
Government Code section 46.005(a) to mean the sale of legal services. In our view, the free and
voluntary performance of legal services for the county not required of the county attorney by statute
would in no way frustrate the purpose of the Act. While a hypertechnical reading of section
46.005(a) in conjunction with the older attorney general opinions of this office on contracts between
the commissioners court and the attorney in his private capacity might lead one to the rather severe
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conclusion that the attorney could under no circumstances provide services beyond his statutory
duties, absent binding court precedent or the clear direction of the legislature we reject such a
conclusion.

         Of course the County Attorney is not obliged to perform such services, and the
commissioners court would have to depend upon his good graces in this regard. But the provisions
of section 46.005(a) do not prevent the County Attorney from offering and providing such services
on a voluntary basis.

        While the Act does not prevent the County Attorney from offering ancillary legal services
to the county gratis, it does prevent him from entering in his private capacity into the sort of
consultation agreements with cities to which your second question refers. As we have pointed out,
a county attorney covered by the Professional Prosecutors Act in effect gives up his private capacity
and for that reason cannot contract with cities to represent them as a private lawyer.’

       One of the consultation agreements with which you have furnished us a copy appears to be
executed by the County Attorney as a private lawyer. However, under the terms of section
46.005(a), the County Attorney has no capacity to practice law privately.

        The other contract with which we have been furnished appears to have been executed by
the County Attorney in his official capacity. However, the only general ability to contract for
the county resides in the commissioners court. This principle has repeatedly been asserted by this
office, generally in questions dealing with the ability of the sheriff to contract for jail operations.
See, e.g., Tex. Att’y Gen. Op. No. DM-111 (1992); Tex. Att’y Gen. LO-98-072. As Letter Opinion
No. 98-072 put it, “Contracts binding on the county               must in general be made by the
commissioners court unless a sheriff or other county official has specific authority to make them.”
Tex. Att’y Gen. LO-98-072, at 2.

        We find no specific authority for the County Attorney to enter into consultation agreements
with municipalities to provide legal advice to the municipal court either in the Colorado County
Attorney’s statute, section 45.145 of the Government Code, the general provisions concerning
county attorneys in chapter 45 of the Government Code, the general provisions concerning district
attorneys in chapter 43 of the code, those concerning prosecuting attorneys in chapter 41, or in the
provisions of the Professional Prosecutors Act. Absent such specific contractual authority, the
County Attorney may not enter in his official capacity into such consultation agreements as are at
issue here.*



          ‘We emphasize that this conclusion is limited to attorneys covered by the Professional Prosecutors Act, and
therefore by section 46.005(a).  This discussion does not implicate constitutional questions concerning dual offke-
holding, or the common-law doctrine of incompatibility.

          ‘We do not address the authority of a county to enter into a contract for the provision   of legal services with a
municipality.
The Honorable Raymie Kana - Page 5                 (X-0034)




                                       SUMMARY

               While the Professional Prosecutors Act, chapter 46 of the Government
           Code, prevents a county attorney covered by it from entering into a contract
           with the county to provide it, for remuneration, with ancillary legal services
           not included among his statutory duties, it does not prevent the county
           attorney from voluntarily and gratuitously providing such services should he
           so choose.

               Because prosecutors covered by the Act give up their capacity to practice
           law privately, the Act does prevent a county attorney covered by it from
           entering in his private capacity into a consultation agreement with a
           municipality to provide the municipal court with legal advice. Nor, absent
           specific statutory authority to do so, may the county attorney enter into such
           a contract in his official capacity.




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                                              Yo       very truly

                                           cm-...     CL
                                                                ‘-“‘--I--
                                              JOiiN    CORNYN
                                              Attorney General of Texas


ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General
