                               ATTORNEY            GENERALOFTEXAS
                                            GREG        ABBOTT




                                              December 4,2006



The Honorable Vicki Patti110                             Opinion No. GA-0488
District Attorney                                        Re: Whether a part-time deputy district clerk may
25th Judicial District                                   be simultaneously employed by a private attorney
113 South River, Suite 205                               (RQ-0485-GA)
Seguin, Texas 7,s 155

Dear Ms. Pattillo:

         You ask whether a conflict of interest exists when apart-time deputy district clerk also works
part-time for a private attorney who files cases with the district clerk.] The individual is
compensated in each position. See Request Letter, supra note 1, at 1.

          A deputy district clerk is appointed by the district clerk and must take the oath prescribed for
state officers. See TEX.GOV’T CODE ANN. 5 51.309(a) (Vernon 2005). The district clerk must
obtain a surety bond to cover a deputy clerk or clerks, and a deputy must be covered on the same
conditions and in the same amount as the district clerk. See id. § 51.309(b). A deputy clerk
“may perform in the name of the district clerk all official acts of the office of district clerk.” Id.
§ 5 1.309(a). See also TEX. CODE CREU.PROC. ANN. art. 2.22 (Vernon 2005) (duties imposed upon
a district clerk may be lawfully performed by his deputy). The district clerk collects the filing fees
requiredbylaw.     See TEX.GOV'TCODEANN.~~~~.~~~(~),.~~~(V~~~~~~OO~&SU~~.~OO~).                         His
duties include maintaining records filed in the clerk’s office, recording the acts and proceedings of
the court, entering judgments under the judge’s direction, and recording all executions issued and
the returns on the executions.        See id. 5 51.303 (Vemon~2005).       The clerk may also take the
depositions ofwitnesses. See TEX. CODE GRIM.PROC. ANN. art. 39.03 (Vernon 2005); TEX. GOV’T
CODE ANN. 5 5 1.303(e)( 1) (Vernon 2005). As a general rule, a deputy district clerk “is authorized
to perform any official ministerial act that may be done by his principal.” Gray v. State, 5 S.W.2d
518, 519 (Tex. Crim. App. 1928); see also Carlock v. State, 139 S.W.3d 90, 92-93 (Tex.
App.-Texarkana       2004, no pet.) (deputy district clerk testified in court to identify certified copy of
prior conviction).

        You raise Texas Constitution article XVI, section 40, which prohibits any person from
holding or exercising “more than one civil office of emolument.” TEX. CONST. art. XVI, 3 40; see


        ‘Letter from Honorable Vicki Pattillo, District Attorney, 25th Judicial District, to Honorable Greg Abbott,
Attorney General of Texas, at l-2 (May 11, 2006) ( on tile with the Opinion Committee, also availableat
http://www.oag.state.tx.us)
                         [hereinafterRequestLetter].
The Honorable Vicki Patti110 - Page 2            (GA-0488)




also Pruitt v. Glen Rose Indep. Sch. Dist., 84 S.W.2d 1004, 1006 (Tex. 1935) (when the holder of
one office of emolument accepts and qualifies for a second office of emolument, he automatically
relinquishes the first office). For purposes of this constitutional provision, a “civil office” is a
“public office.” See Tilley v. Rogers, 405 S.W.2d 220,224 (Tex. Civ. App.-Beaumont         1966, writ
ref d n.r.e.); Tex. Att’y Gen. Op. Nos. GA-0365 (2005) at 3 n.7, GA-0214 (2004) at 2. A public
officer is a person upon whom a “sovereign function of the government” has been conferred “to be
exercised by him for the benetit ~ofthe public largely independent of the control of others.” Aldine
Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,583 (Tex. 1955), disapproved on other grounds by
Nat7 Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690,693-94 (Tex. 1968).

         A deputy district clerk is not a public officer. See Tex. Att’y Gen. Op. No. MW-415 (1981)
at l-2. A deputy is appointed by the district clerk and “may perform in the name of the district clerk
all official acts of the office of district clerk.” TEX. GOV’T CODE ANN. 5 5 1.309(a) (Vernon 2005).
A deputy district clerk does not exercise a sovereign function of government in his own right and
is not a civil officer within article XVI, section 40. Moreover, an employee of a private attorney is
neither a public officer nor a public employee. See Tex. Att’y Gen. Op. No. JC-0033 (1,999) at 1.
The individual in question does not hold a civil office of emolument either as deputy district clerk
or as a private attorney’s employee. Article XVI, section 40 therefore does not prohibit one person
from holding both positions.

        You also raise the common-law doctrine of incompatibility that prevents one person from
holding two public offices with inconsistent or conflicting duties, from appointing himself to another
public position, or from holding both an office and an employment subordinate to the office. See
Ehlinger v. Clark, 8 S.W.2d 666,674 (Tex. 1928) (self-appointment); Thomas v. Abernathy County
Line Indep. Sch. Dist., 290 S.W. 152,153 (Tex. Comm’n App. 1927, judgm’t adopted) (two public
offices with conflicting duties); see generally Tex. Att’y Gen. LA-l 14 (1975) (office and
employment subordinate to the office). As we concluded in addressing article XVI, section 40,
neither position held by this individual is a public office. Nor is there an issue of self-appointment.
The common-law doctrine of incompatibility therefore does not bar a deputy district clerk from
working for a private attorney.

        However, this dual employment raises a possibility of conflicting interests that warrants
further inquiry. In performing the duties of the district clerk’s office, a deputy district clerk will
necessarily be in contact with local attorneys and their employees who, tile documents with the
clerk’s office, and he could also be required to take a deposition in a local attorney’s case. As the
employee of a local law firm, the deputy district clerk may perform services of the clerk’s office for
his private law firm. Government Code section 82.064(a) provides that a district clerk “may not
appear and plead as an attorney at law in any court of record in this state,” but no statute places
comparable limits on a deputy clerk. TEX. GOV’T CODE ANN. 5 82.064(a) (Vernon 2005).’ We thus
consider whether the Texas Disciplinary Rules OfProfessional Conduct (“the Rules”) have a bearing
on the dual employment in this case.



          %‘hether GovernmentCode section82.064(a) shouldbe amendedto apply to deputyclerks is a matterfor the
 legislature. See Pub. Lnd. Cmm’n Y. Gofer, 754 S.W.2d 121, 126 (Tex. 1988).
The Honorable Vicki Patti110 - Page 3            (GA-048,s)




         In addressing the Rules, we first assume that the deputy clerk is an attorney. While we fmd
no Rule directly addressing an attorney’s employment in a court clerk’s office, we note that Rule
1.06, the general rule on conflict of interest, provides that “except to the extent permitted by
paragraph (c), a lawyer shall not represent a person if the representation of that person” reasonably
appears to be “limited by the lawyer’s      responsibilities . ..toathirdperson.”   TEX.DISCIPLINARY
R. PROF'L CONDUCT1.06(b), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon
2005)(TEx. STATE BARR. art. X, § 9); see id 1.06(c) (attorney may represent a client if he
“reasonably believes representation of each client till not be materially affected” and clients consent
to representation after full disclosure of possible conflict). In considering his responsibilities to the
district clerk’s office and his clients, an attorney should keep in mind the lawyer’s obligation to
maintain the highest standards ofethical conduct. See id.,(“Preamble: A Lawyer’s Responsibilities,”
paragraph 1).

        Ifthe deputy district clerk is not an attorney, another rule is relevant to this matter. .Rule 5.03
provides as follows:

                         With respect to a nonlawyer       employed    or retained   by or
                associated with a lawyer:

                            (a) alawyer having direct supervisory authority over the
                nonlawyer shall make reasonable efforts to ensure that the person’s
                conduct is compatible with the professional obligations of the
                lawyer[.]

Id. 5.03.

        The professional ethics committee of the Texas State Bar, established by Government Code
section 81.091, “shall, either on its own initiative or when requested to do so by a member of the
state bar, express its opinion on the propriety of professional conduct other than on a question
pending before acourtofthis     state.” TEX.GOV'T CODEANN. $5 81.091,.092(a)(Vemon2005).
This committee is the appropriate body to consider the attorney’s responsibility under the Texas
Disciplinary Rules of Professional Conduct in relation to his own service as a deputy district clerk
or to an employee who serves in that position.
The Honorable Vicki Patti110 - Page 4         (GA-0488)




                                       SUMMARY

                       Article XVI, section 40 of the Texas Constitution, which
              prohibits one person from holding more than one civil office of
              emolument, does not bar an individual from serving as both a deputy
              district clerk and an employee of a private attorney who files cases
              with the district clerk. The common-law doctrine of incompatibility
              does not bar an individual from holding these two positions. The
              attorney’s responsibility under the Texas Disciplinary Rules of
              Professional Conduct in relation to his own service or his employee’s
              service as deputy district clerk is a question for the professional ethics
              committee of the Texas State Bar.




RENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General, Opinion Committee
