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




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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




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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




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