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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorney - Texas Code of Criminal Procedure Blog Article 2.08 Disqualified

Article 2.08 relates to how District and county attorneys are able to represent the State and private citizens. Subsection (a) states that District and county attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State. This makes it illegal for someone to prosecute and individual and then retire from their job as a prosecutor and defend the same person they were just prosecuting.


Subsection (b) requires a judge to disqualify an attorney to be a special prosecutor on a showing that the attorney is the subject of a criminal investigation by a law enforcement agency if that investigation is based on credible evidence of criminal misconduct for an offense that is within the attorney's authority to prosecute.



The companion rule is Texas Rule of Professional Conduct 1.10


Rule 1.10 Successive Government and Private Employment is a legal rule that governs the actions of lawyers who have served as public officers or employees and are now representing private clients. The rule has several key points:

  • A lawyer shall not represent a private client in connection with a matter in which the lawyer participated personally or substantially as a public officer or employee, unless the appropriate government agency consents after consultation.

  • If a lawyer in a firm is subject to this rule, other lawyers in the firm may not knowingly undertake or continue representation in such a matter unless the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom.

  • A lawyer who has confidential government information about a person or other legal entity acquired when the lawyer was a public officer or employee may not represent a private client whose interests are adverse to that person or legal entity.

  • A lawyer serving as a public officer or employee shall not participate in a matter involving a private client when the lawyer had represented that client in the same matter while in private practice or non-governmental employment, or negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially.

This rule aims to prevent conflicts of interest and protect the integrity of the legal system. It ensures that lawyers who have served as public officers or employees do not use their knowledge or experience gained in that role to benefit private clients at the expense of the government or the public.


Art. 2.08. DISQUALIFIED. (a) District and county attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State. (b) A judge of a court in which a district or county attorney represents the State shall declare the district or county attorney disqualified for purposes of Article 2.07 on a showing that the attorney is the subject of a criminal investigation by a law enforcement agency if that investigation is based on credible evidence of criminal misconduct for an offense that is within the attorney's authority to prosecute. A disqualification under this subsection applies only to the attorney's access to the criminal investigation pending against the attorney and to any prosecution of a criminal charge resulting from that investigation. Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 977 (H.B. 1638), Sec. 1, eff. September 1, 2011.


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