                              ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                               July 29, 2008



The Honorable Billy W. Byrd                        Opinion No. GA-0651
Upshur County Criminal District Attorney
405 North Titus Street                             Re: Whether a justice of the peace who is an
Gilmer, Texas 75644                                attorney may be appointed to represent criminal
                                                   defendants in appellate proceedings (RQ-0674-GA)

Dear Mr. Byrd:

         You state that ajustice ofthe peace in your county, who is a licensed attorney, has requested
that he be put on the Criminal Appellate Appointment List.! You ask whether the justice may be
appointed to represent criminal defendants in appellate proceedings. See Request Letter, supra note
1, at 1.

         Under both the Texas and United States constitutions, "an indigent defendant is entitled to
the effective assistance ofcounsel on appeal." Yates v. State, 557 S.W.2d 115, 117 (Tex. Crim. App.
1977) (citing Anders v. Cal., 386 U.S. 738 (1967); Douglas v. Cal., 372 U.S. 353 (1963); McMahon
v. State, 529 S.W.2d 771 (Tex. Crim. App. 1975); Currie v. State, 516S.W.2d684 (Tex. Crim. App.
1974); Hawkins v. State, 515 S.W.2d 275 (Tex. Crim. App. 1974)); Eaden v. State, 161 S.W.3d 173,
175 (Tex. App.-Eastland 2005, no pet.) (citing Yates). Under Texas statute,

                        [a]n eligible indigent defendant is entitled to have the trial
                court appoint an attorney to represent him in the following appellate
                and postconviction habeas corpus matters:

                               (1) an appeal to a court of appeals;

                             (2) an appeal to the Court of Criminal Appeals if the
                appeal is made directly from the trial court or if a petition for
                discretionary review has been granted;

                              (3) a habeas corpus proceeding if the court concludes
                that the interests ofjustice require representation; and


         lSee Letter from Honorable Billy W. Byrd, Upshur County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas, at 2 (Jan. 29, 2008) (on file with the Opinion Committee, also available at
http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
The Honorable Billy W. Byrd - Page 2                       (GA-0651)



                               (4) any other appellate proceeding if the court
                  concludes that the interests ofjustice require representation.

TEX. CODE CRIM. PROC. ANN. art. 1.051(d) (Vernon Supp. 2007).

         As you point out, the Texas Constitution provides justice of the peace courts with "original
jurisdiction in criminal matters of misdemeanor· cases punishable by fine only ... and such other
jurisdiction as may be provided by law." TEX. CONST. art. V, § 19; see Request Letter, supra note
1, at 2; see also TEX. GOV'TCODEANN. § 27.031(a) (Vernon Supp. 2007) (adding to ajustice ofthe
peace court's constitutional jurisdiction). You state that a justice of the peace also serves as a
magistrate and, as such, "has the duty to advise accused persons of rights, [issue warrants of] arrest,
set[] and tak[e] bail bond[s], receiv[e] complaints, [and] appoint[] attorneys." Request Letter, supra
note 1, at 2; see TEX. CODE CRIM. PROC. ANN. art. 2.09 (Vernon Supp. 2007) (listing justices ofthe
peace as magistrates within the meaning ofthe Code of Criminal Procedure); Hartv. State, 15 Tex.
App. 202, 1883 WL 8999, at *16 (Tex. Ct. App. 1883) (stating that when a justice of the peace sits
for the purpose of inquiring into a criminal accusation against a person, the justice sits as a
magistrate in an examining court). 2 You further note that Upshur County prosecutions are conducted
in justice court by the Upshur County Criminal District Attorney, who also represents the state
in appeals from justice-court decisions "[e]xcept as provided by law." TEX. CODE CRIM. PROC.
ANN. art. 45.101 (Vernon 2006); Request Letter, supra note 1, at 2; TEX. GOV'T CODE ANN.
 § 44.330(a)-(b) (Vernon 2004) (requiring the Upshur County Criminal District Attorney to
"exclusively represent the state in all criminal matters before" the courts inferior to the district courts
ofthe county and providing the criminal district attorney with "all the powers, duties and privileges
 ... that are conferred by law on county ... attorneys").

        You question, in essence, whether an attorney who is a justice ofthe peace is an appropriate
individual to serve as appointed counsel to a criminal defendant in an appeal. You are primarily
concerned that the concurrent holding of positions as justice of the peace and a court-appointed
appellate attorney will create "a conflict of interest," and you cite in particular the Code of Judicial
Conduct. Request Letter, supra note 1, at 1. We analyze your question by examining two statutes,
the Code of Judicial Conduct, and the Texas Disciplinary Rules of Professional Conduct.

I.       Statutes

        Two statutes appear to suggest that a justice of the peace may accept an appointment to
represent a criminal defendant at the appellate level. First, Government Code section 82.064, which
bars certain judicial and county officers from appearing as an attorney in a case, does not mention



           2See also, e.g., TEX. CODE CRIM. PROC'. ANN. art. 2.10 (Vernon 2005) (setting out general magisterial duties);
id. arts. 6.01-.04 (requiring a magistrate to act to prevent threatened offenses); id. ch. 7 (Vernon 2005 & Supp. 2007)
("Proceedings Before Magistrates to Prevent Offenses"); id. art. 15.03(a) (Vernon 2005) (authorizing a magistrate to
issue a warrant of arrest or a summons in certain circumstances); id. art. 15.17 (Vernon Supp. 2007) (setting out a
magistrate's duties when an arrested person is brought before the magistrate).
The Honorable Billy W. Byrd - Page 3              (GA-0651)



justices of the peace and thus, by implication, suggests that justices of the peace are excluded from
the ban. See TEX. GOV'T CODE ANN. § 82.064 (Vernon 2005). Under section 82.064:

                        (a) A judge or clerk of the supreme court, the court of
               criminal appeals, a court of appeals, or a district court, or a sheriff
               may not appear and plead as an attorney at law in any court of record
               in this state.

                       (b) 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.

Id. § 82.064(a)-(b); see also State Bar Committee on the Interpretation of Canons of Ethics,
Opinion 13 (1948), available at http://www.txethics.org/reference_opinions.asp?opinionnum=13
(determining that, under Government Code section 82.064's statutory predecessor and cases
construing the same, a county judge may practice law within specified limits) (last visited July 22,
2008). This office concluded in 1948 that because no constitutional or statutory provision, including
the statutory predecessor to section 82.064(b), prohibited ajustice ofthe peace from practicing law,
the justice may "practice law in any court in the State except the justice court over which he
presides." Tex. Att'y Gen. Ope No. V-556 (1948) at 1-2.

        Second, because, as we conclude below, a justice of the peace is an elected county official
for purposes of article 26.06 of the Code of Criminal Procedure, article 26.06 implicitly authorizes
the justice to accept an appointment to represent a defendant in a criminal case. See TEX. CODE
CRIM. PROC. ANN. art. 26.06 (Vernon 1989). Article 26.06 limits the circumstances in which an
elected county official, among others, may be appointed to represent a defendant in a criminal
proceeding:

                        No court may appoint an elected county, district or state
               official to represent a person accused of crime, unless the official has
               notified the court ofhis availability for appointment. Ifan official has
               notified the court of his availability and is appointed as counsel, he
               may decline the appointment if he determines that it is in the best
               interest of his office to do so. Nothing in this Code shall modify any
               statutory provision for legi~lative continuance.

Id.; see also Williams v. State, 321 S.W.2d 72,75 (Tex. Crim. App. 1958) (construing the statutory
predecessor to article 26.06 to "relieve a lawyer who is an elected county official from the duty of
accepting [an] appointment, but [not to] preclude his serving ifhe chooses to do so").

         The term "elected county official" has not been defined in Texas by statute, by a court, or by
this office. In our opinion, the phrase is synonymous with "elected county officer." Ajustice ofthe
peace is an elected county officer for some purposes, but an elected precinct officer for other
The Honorable Billy W. Byrd - Page 4                       (GA-0651)



purposes. For example, article V, section 24 of the Texas Constitution provides for the removal of
county officers, including justices of the peace. See TEX. CONST. art. V, § 24; see also Crump v.
State, 5 S.W. 182, 183 (Tex. Ct. App. 1887, no writ) (stating that a justice of the peace is a county
officer for purposes of article V, section 24 as well as several statutes); cf Lane v. McLemore, 169
S.W. 1073, 1075 (Tex. Civ. App.-Galveston 1914, no writ) (stating that a justice of the peace,
whose functions are confined to the justice's county, is "commonly known and called" a county
officer (quoting State ex reI. Holmes v. Dillon, 2 S.W. 417, 419 (Mo. 1886)). By contrast, article
XVI, section 61(b) of the constitution, which provides for commissioners courts to determine
whether precinct officers should be paid on a fee or salary basis, indicates that justices of the peace
are precinct officers. See TEX. CONST. art. XVI, § 61(b); see also Chenault v. Bexar County, 782
S.W.2d 206,209 (Tex. 1989) (referring to a justice of the peace as a precinct officer); cf Harris
County v. Stewart, 41 S.W. 650, 654 (Tex. 1897) (stating that when the territorial limits of a justice
ofthe peace's authority are considered, ajustice ofthe peace is a precinct officer). In 1890 the Texas
Supreme Court indicated that whether the term "county officer" encompasses a particular position,
such as ajustice of the peace, depends upon a consideration of the context and intent of the statute
at issue:

                  The words 'county officers' are terms very loosely used in our laws,
                  and to them no very well-defined meaning is assigned. They may
                  mean an officer who is elected solely by the voters of the county, or
                  one who has the power to exercise the functions of his office
                  throughout the entire county. It may also be applied to those whose
                  duties are confined to a particular subdivision of the county as
                  contradistinguished from those whose functions extend to every part
                  of the state. It follows that, in order to determine the sense in which
                  the words are used in any particular statute, we must look to the
                  context as well as to the reason and spirit of the law.

Reynolds v. Tarrant County, 14 S.W. 580, 581 (Tex. 1890).

        Consistently with the Texas Supreme Court's directive to ascertain the context ofand reason
for the statute, we consider article 26.06's legislative history, which suggests that the Legislature
intended the term "elected county official" to be construed expansively. The Legislature enacted the
substance of article 26.06 relative to elected county officials in 1951 because "the business and
affairs ofnumerous counties throughout the State are seriously impaired and affected by the practice
of appointing elective county officials to represent defendants in criminal cases.,,3 Act of May 23,
1951, 52d Leg., R.S., ch. 408, § 2, 1951 Tex. Gen. Laws 752, 752; see ide § 1, 1951 Tex. Gen. Laws
at 752. The Legislature's stated concern for the timely performance ofcounty business suggests that
the Legislature intended the statute to be broadly construed to include, at the county level, any



          3In 1965 the Legislature amended article 26.06's statutory predecessor to "extend" the statute to district and
state officials. TEX. CODE CRIM. PROC. ANN. art. 26.06 cmt. (Vernon 1989); see Act of May 27, 1965, 59th Leg., R.S.,
ch. 722, § 1, 1965 Tex. Gen. Laws 317, 426.
The Honorable Billy W. Byrd - Page 5                       (GA-0651)



elected officer who conducts county business that could be impaired if the officer were appointed
to represent an indigent criminal defendant.

        We conclude that the phrase "elected county official" in article 26.06 encompasses justices
of the peace who are attorneys. Consequently, article 26.06 authorizes a justice of the peace to
decline an appointment to represent a criminal defendant but also implicitly recognizes the justice's
authority to accept such an appointment. Cf Williams, 321 S.W.2d at 75 (construing the statutory
predecessor to article 26.06 to "relieve a lawyer who is an elected county official from the duty of
accepting such appointment, but not [to] preclude his serving if he chooses to do so").

        In sum, neither Government Code section 82.064 nor Code of Criminal Procedure article
26.06 prohibits a justice of the peace from accepting an appointment to represent an indigent
criminal defendant at the appellate level. Indeed, both implicitly recognize the justice's authority
to do so. As you suggest, however, ethical rules of conduct may apply.

II.      Code of Judicial Conduct

         Based on the principle that "[a]n independent and honorable judiciary is indispen~able to
justice in our society," the Code ofJudicial Conduct provides "high standards ofconduct" by which
all judges' conduct is measured. TEX. CODE JUD. CONDUCT, Canon 1, reprinted in TEX. GOV'T
CODE ANN. tit. 2, subtit. G app. B (Vernon 2005). Canon 4G ofthe Code specifically forbids a judge
to "practice law except as permitted by statute or this Code." Id. Canon 4G. Other canons broadly
require a judge to act in a manner that will inspire public confidence in the judiciary generally and
in the judge's individual capacity to act as a judge. Canon 2A, for example, requires a judge to "act
at all times in a manner that promotes public confidence in the integrity and impartiality of the
judiciary." Id. Canon 2A. Canon 4A requires ajudge to conduct all "extra-judicial activities so that
they do not: (1) cast reasonable doubt on the judge's capacity to act impartially as a judge; or (2)
interfere with the proper performance ofjudicial duties." Id. Canon 4A.

        Canon 6C requires ajustice ofthe peace to comply with all provisions ofthe Code ofJudicial
Conduct, but excepts certain provisions-most of which are not relevant here-from applicability.
See ide Canon 6C(1 ).4 In particular, Canon 6C(1)(d) excepts ajustice ofthe peace who is an attorney
from Canon 4G's prohibition on the practice of law "except practicing law in the court on which he
or she serves, or acting as a lawyer in a proceeding in which he or she has served as ajudge or in any
proceeding related thereto." Id. Canon 6C(1)(d).




          4See also TEX. CODE JUD. CONDUCT, Canon 6(C)(I)(a)-(c), (e), reprinted in TEX. GOV'T CODE ANN. tit. 2,
subtit. G app. B (Vernon 2005) (excepting a justice of the peace from compliance "with Canon 3B(8) pertaining to ex
parte communications"; "with Canons 4D(2) [pertaining to investments and business operation], 4D(3) [pertaining to
the management of investments to minimize disqualification], 4E [pertaining to fiduciary activities], or 4H [pertaining
to extra-judicial appointments]"; "with Canon 4F," which pertains to service as an arbitrator or mediator, in certain
circumstances; and "with Canon 5(3)," which requires a judge to resign from judicial office when the judge becomes a
candidate in a contested election for a nonjudicial office).
The Honorable Billy W. Byrd - Page 6                       (GA-0651)




         You suggest that Canon 6C(1)(d) ofthe Code of Judicial Conduct may allow a justice ofthe
peace to act as a lawyer "except in a proceeding in which [the justice] has served as a Judge or in any
proceeding related thereto." Id.; see Request Letter, supra note 1, at 2. We read Canon 6C(I)(d)
similarly. By generally excepting justices of the peace from Canon4G, we understand Canon
6C(I)(d) to permit justices of the peace who are attorneys to practice law without the need for
express authority to do so under statute or the Code of Judicial Conduct. See TEX. CODE JUD.
CONDUCT, Canons 4G, 6C(I)(d) 1, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B
(Vernon 2005). Canon 6C(I)(d) does not permit a justice of the peace to act as a lawyer in a
proceeding in which the justice served as judge or in any proceeding related to a proceeding in which
the justice served as judge. 5 Id. Canon 6C(I)(d). Canon 6C(I)(d) on its face appears to recognize
that a justice may serve as appointed counsel for a criminal defendant in the appellate process so long
as the justice does not act "as a lawyer in a proceeding in which he or she has served as a judge or
in any proceeding related thereto." Id.

         Nevertheless, this office cannot finally resolve whether a justice ofthe peace will violate the
canons of judicial conduct by accepting an appointment to represent a criminal defendant in a
particular appellate proceeding. This office cannot resolve fact questions. See Tex. Att'y Gen. Ope
No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process.").
Moreover, the State Commission on Judicial Conduct (the "Commission") is responsible in the
first instance for applying the judicial canons to specific judicial conduct. See TEX. CONST. art. V,
§ l-a(2), (6)(A), (8) (creating the Commission and authorizing it to investigate alleged willful
violations of the Code of Judicial Conduct, among other things); accord TEX. GOV'T CODE ANN.
§§ 33.002(a), .0211(a), .022(a), (c), (f), .023(a) (Vernon 2004); Tex. Att'y Gen. Ope No. GA-0551
(2007) at 2. We find no Commission statement on a judge's concurrent service as a court-appointed
attorney representing a criminal defendant in the appeals process. 6 See generally STATE COMM'N



         SCanon 6C(1)(d) also bans ajustice from practicing law in the justice's own court. TEX. CODE JUD. CONDUCT,
Canon 6C(1)(d), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B (Vernon 2005). You tell us that the justice
about whom you ask is interested only in appellate work. See Request Letter, supra note 1, at 2. A justice court has no
appellate jurisdiction. See TEX. CONST. art. V, § 19; TEX. GOV'T CODE ANN. § 27.031(a) (Vernon Supp. 2007).
Accordingly, we need not stipulate that the justice may not practice in his own court.

        6The Commission has spoken against judges serving "concurrently as ... law enforcement officer[s]."STATE
COMM'N ON JUDICIAL CONDUCT, PUBLIC STATEMENT No. PS-2000-1 (Mar. 24, 2000). The Commission's Public
Statement is premised on a separation-of-powers rationale:

                  Judges are members of the judicial branch of our government. Law enforcement
                  officers are part of the executive branch. Each branch is separate from, but co-
                  equal with, the other. Therefore, the Commission concludes that any judge who
                  attempts to serve both branches cannot accomplish the task without impairing the
                  effectiveness of one or both positions.

Id. Based upon the Commission's Public Statement, this office in 2007 concluded that a justice of the peace might be
prohibited from administering polygraph examinations for a criminal district attorney's office-"a part of law
enforcement and the executive branch of government." Tex. Att'y Gen. Ope No. GA-055.1 (2007) at 2. We have found
no statement that an attorney appointed to represent an indigent defendant in appellate proceedings is within the
executive branch ofgovernment such that the Commission's separation-of-powers rationale would apply here, however.
The Honorable Billy W. Byrd - Page 7                        (GA-0651)




ON JUDICIAL CONDUCT, PUBLIC STATEMENTS, available at http://www.scjc.state.tx.us/pubstats.asp
(last visited July 22, 2008).

III.     Disciplinary Rules of Professional Conduct

        Although you do not cite the Texas Disciplinary Rules of Professional Conduct, they may
be relevant also. Cf TEX. CODE JUD. CONDUCT, Preamble, reprinted in TEX. GOV'T CODE ANN. tit.
2, subtit. G app. B (Vernon 2005) (stating that the Code ofJudicial Conduct is not "exhaustive" and
that judges "should also be governed in their judicial and personal conduct by general ethical
standards"). The Disciplinary Rules have been adopted to provide high standards ofethical conduct
for all members of the State Bar of Texas. See STATE BAR RULES art. II, § 3, reprinted in
TEX. GOV'T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005); TEX. DISCIPLINARY R. OF PROF'L
CONDUCT, Preamble, reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit. G app. B (Vernon 2005).

        For example, Rule I.06(b)(2) generally prohibits a lawyer from representing a person if
the representation "reasonably appears to be or become adversely limited by the lawyer's . . .
responsibilities to another client or to a third person or by the lawyer's ... own interests." TEX.
DISCIPLINARY R. OF PROF'L CONDUCT I.06(b)(2), reprinted in TEX. GOV'T CODE ANN. tit. 2, subtit.
G app. A (Vernon 2005). Rule 1.1 O(a) prohibits a lawyer from "represent[ing] a private client in
connection with a matter in which the lawyer participated personally and substantially as a public
officer, unless the appropriate government agency consents after consultation" and "[e]xcept as law
may otherwise expressly permit." Id. R. I.IO(a). And Rule I.II(a) prohibits a lawyer from
"represent[ing] anyone in connection with a matter in which the lawyer has passed upon the merits
or otherwise participated personally and substantially as an adjudicatory official ... unless all parties
to the proceeding consent after disclosure." Id. R. I.II(a).

       Whether particular conduct violates these or any other rules of professional conduct is a
question requiring the resolution of fact questions and cannot be decided by this office. 7 See Tex.


          7In 1948 the State Bar Committee on the Interpretation of Canons of Ethics (the "Committee"), which was
responsible for construing the Canons of Ethics for attorneys in effect at that time, construed Canon 6 with respect to a
justice of the peace's practice of law in superior courts or in a county outside his own. State Bar Committee on the
Interpretation of Canons of Ethics, Opinion 16 (1948), available at http://www.txethics.org/reference_opinions.asp
?opinionnum=16 (last visited July 22, 2008). Canon 6 cautioned an attorney against representing conflicting interests
unless all concerned persons had expressly consented following a full disclosure ofthe facts and forbade an attorney from
representing persons in matters adverse to previous clients. See Canons ofEthics, Canon 6, reprinted in STATE BAR OF
TEXAS, RULES AND CANONS OF ETHICS (1958); cf TEX. DISCIPLINARY R. OF PROF'L CONDUCT 1.06, 1.09, reprinted in
TEX. GOV'T CODE ANN. tit. 2, subtit. G app. A (Vernon 2005) ("Conflict of Interest: General Rule" and "Conflict of
Interest: Former Client"). The Committee opined that ajustice ofthe peace, who is a lawyer, may practice criminal law
in superior courts or in any county outside his own county "where the matter has not been before him in any manner in
his capacity ofjustice of the peace," but that "it would be highly preferable for said justice of the peace to refrain from
 such practice even though ... no statute or Canon ... expressly prohibits him from doing so." State Bar Committee on
the Interpretation of Canons ofEthics, Opinion 16 (1948), available at http://www.txethics.org/reference_opinions.asp
 ?opinionnum= 16 (last visited July 22, 2008).

                                                                                                            (continued...)
The Honorable Billy W. Byrd - Page 8                          (GA-0651)



Att'y Gen. Ope No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion
process."); see also TEX. GOV'T CODE ANN. § 81.071 (Vernon 2005) ("Each attorney admitted to
practice in this state ... is subject to the disciplinary and disability jurisdiction ofthe supreme court
and the Commission for Lawyer Discipline, a committee ofthe state bar."); Kaufman v. Comm 'nfor
Lawyer Discipline, 197 S.W.3d 867,872 (Tex. App.-Corpus Christi 2006), cert. denied, 128 S. Ct.
331 (2007) (noting the jurisdiction ofthe supreme court and the Commission for Lawyer Discipline).




           7(... continued)
           In 1956 the Committee construed Canon 33 with respect to ajustice ofthe peace's advocacy in civil or criminal
proceedings arising in his court or other courts. See State Bar Committee on the Interpretation of Canons of Ethics,
Opinion 125 (1956), available athttp://www.txethics.org/reference_opinions.asp?opinionnum=125 (last visited July 22,
2008). Canon 33 prohibited an attorney from accepting employment "as an advocate in any matter upon the merits of
which he has previously acted in a judicial capacity." Canons of Ethics, Canon 33, reprinted in STATE BAR OF TEXAS,
RULES AND CANONS OF ETHICS (1958); cf TEX. DISCIPLINARY R. OF PROF'L CONDUCT 1.11, reprinted in TEX. GOV'T
CODE ANN. tit. 2, subtit. G app. A (Vernon 2005) ("Adjudicatory Official or Law Clerk"). The Committee opined that
"[i]t is improper for a justice of the peace to participate in any case [that] originated in his court or any other justice of
the peace court." State Bar Committee on the Interpretation of Canons of Ethics, Opinion 125 (1956), available at
http://www.txethics.org/reference_opinions.asp?opinionnum=125 (last visited July 22,2008). The Committee further
opined that" [i]t is improper or 'unwise' for a justice of the peace to defend criminal cases in any court regardless of
where the case originated." ld.

         When these opinions were issued, there was no provision equivalent to Canon 6C(1)(d) ofthe Code of Judicial
Conduct. We cannot predict how that Code of Judicial Conduct would impact any decision under the current
Disciplinary Rules of Professional Conduct.
The Honorable Billy W. Byrd - Page 9            (GA-0651)



                                      SUMMARY

                       Neither Government Code section 82.064 nor Code of
              Criminal Procedure article 26.06 prohibits ajustice ofthe peace who
              is an attorney from accepting an appointment to represent an indigent
              criminal defendant at the appellate level,and both implicitly
              recognize the justice's authority to do so.

                     Nevertheless, the justice also is subject to the Code ofJudicial
              Conduct and the Texas Disciplinary Rules of Professional Conduct.
              Whether ajustice ofthe peace may be appointed to represent criminal
              defendants in appellate proceedings without violating the Code of
              Judicial Conduct or the Disciplinary Rules of Professional Conduct
              is a question requiring the resolution of fact issues and cannot be
              determined by this office.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
