Untitled Texas Attorney General Opinion ( 2001 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
May 23,200l
The Honorable Chris Taylor Opinion No. JC-0380
Tom Green County Attorney
112 West Beauregard Re: Whether a district attorney subject to the
San Angelo, Texas 76903 Professional Prosecutors Act may serve as a legal
officer in the Air Force Reserve and related
questions (RQ-0326-JC)
Dear Mr. Taylor:
Your predecessor, Mr. Thomas M. Goff, asked this office whether service as a legal officer
in the United States Air Force Reserve constitutes the “private practice of law” for purposes of the
Professional Prosecutors Act (the “Act”), chapter 46 of the Government Code, which prohibits
certain prosecutors from engaging in the “private practice of law.“’ See TEX. GOV’T CODE ANN.
$5 46.002(l), .005(a) (V emon Supp. 2001). He also asked about the appropriate remedy, should we
conclude that service as a legal officer in the reserves violates the Act. See Request Letter, note 1,
at 2. Based on the fundamental differences between military and civilian attorneys and strong state
policy encouraging reserve membership in the armed forces, we do not believe that service as a
reserve military legal officer constitutes the private practice of law in the context of the Professional
Prosecutors Act.
This inquiry concerns the District Attorney serving Tom Green County, who is also a legal
officer in the United States Air Force Reserve. See Request Letter, note 1, at 1. The District
Attorney of Tom Green County is subject to the Professional Prosecutors Act, chapter 46 of the
Government Code. See TEX. GOV’T CODE ANN. 8 46.002(l) (Vernon Supp. 2001).
The Professional Prosecutors Act prohibits district attorneys who are subject to the Act from
engaging in the private practice of law. See id. 8 46.005(a); see also Tex. Att’y Gen. Qp. No.
JC-0034 (1999) at 4 (noting that prosecutor subject to Act may not enter contract with a
municipality). The primary objective of the prohibition on the private practice of law is to prevent
prosecutors from spending their time “attending to the business of private clients rather than public
business.” Tex. Att’y Gen. Op. No. JC-0034 (1999) at 3. In the furtherance of this objective, the
Act regulates the compensation of state prosecutors. See TEX. GOV’T CODE ANN. 8 46.003 (Vernon
Supp. 2001). District attorneys subject to the Act receive compensation equal to that provided to
‘See Letter from Honorable Thomas M. Goff, Tom Green County Attorney, to Honorable John Comyn, Texas
Attorney General, at 2 (Dec. 8,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Chris Taylor - Page 2 (JC-0380)
a district judge. See id. 8 46.003 (providing compensation to state prosecutors equal to that of a
district judge under the General Appropriations Act).
The Act fails to define the “private practice of law.” Texas case law does not address
whether service as a military legal officer constitutes the private practice of law. In our opinion, a
person who is a reservist in the armed forces and who serves as a legal officer thereof, does not
thereby engage in the private practice of law. Rather, he is an officer of the armed forces
“designated to perform legal duties for a command.” 10 U.S.C. 8 801(8), (12) (1994).
Texas has a strong state policy to accommodate its state employees who serve in the reserves
of the armed forces. For example, a state employee or officer who serves as a reserve member of
the armed forces is entitled to take a leave of absence to perform his or her duties. See TEX. GOV’T
CODE ANN. 8 431.005(a) (Vernon 1998); id. 9 658.008 (Vernon Supp. 2001). In fact, employees
who leave public employment to perform reserve duty are entitled to re-employment with the state.
See id. 8 613.002(a) (Vernon 1994); id. 4 853.501(a)(l).
Reserve service as a legal officer in the armed forces does not constitute the “private”
practice of law. Moreover, it does not constitute the practice of law. In In re Babcock, 387 P.2d 694
(Alaska 1963) the Alaska Supreme Court held that service as a military legal officer does not
constitute the practice of law. See Babcock, 387 P.2d at 698. Comparing the clientele of civilian
and military attorneys, the court reasoned that unlike a civilian attorney, a military attorney is
assigned legal work by the Judge Advocate General and does not possess the freedom to select
clients or to represent a client in a matter between citizens. See id. at 697. The court noted that
various definitions of the “practice of law” reference a business or profession and while a military
attorney is assigned work that is legal in nature, the attorney’s “business or profession while in the
Armed Forces . . . is that of being [a] soldier . . . in the service of his country.” Id. at 697-98.
Accordingly, we think that a Texas court, in light of the purposes of the Professional Prosecutors
Act, and state policy encouraging reserve service, would follow the rationale in Babcock and hold
that a military legal officer is not engaged in the private practice of law. Because we do not believe
that a military legal officer is engaged in the private practice of law, we do not address your
remaining questions, which assume that service as a legal officer in the United States Air Force
Reserve violates the Professional Prosecutors Act.
The Honorable Chris Taylor - Page 3 (JC-0380)
SUMMARY
Service as a legal officer in the United States Air Force
Reserve does not violate the Professional Prosecutors Act because it
is not the private practice of law.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
SUSAN D. GUSKY
Chair, Opinion Committee
Polly McCann Pruneda
Assistant Attorney General - Opinion Committee