OPINON 162
September 1957

RETIREMENT FROM PUBLIC EMPLOYMENT—LEGISLATORS-- Where a legislator, who is also an attorney, secures passage of a Resolution granting one innocently convicted of a crime permission to sue the State for damages, the legislator is disqualified to prosecute the suit against the State.

Canons 6, 33.

Question

A, being a member of the Texas Legislature, at the request of B, one of his constituents and a resident of his County, introduced a Resolution in the House of Representatives seeking permission for B to sue the State by reason of B having been wrongfully convicted and imprisoned in the penitentiary for two years before it was determined he was innocent and was pardoned. Since A, without compensation or any contract or fee, introduced and secured the passage of such Resolution in the House and instrumental in securing its passage in the Senate, can A (a practicing attorney) ethically later accept employment from B and file suit to prosecute such claim to judgment against the State, or is A disqualified by reason of his connection with such legislation?

Opinion

All members of the committee agree that it would be unethical for the Legislator to accept employment to sue the State on a claim on which suit was authorized by legislation which he sponsored in the Legislature.

Although no specific Texas Canon seems to exactly cover this situation, it was the view that such practice would constitute a violation of the spirit of Texas Canon 6 against representing conflicting interests and Texas Canon 33 against a holder of public office subsequently accepting employment in a matter which he acted upon as such public officer. It was felt that if a lawyer legislator could ethically accept employment under such circumstances, the action of some legislators toward legislation might be improperly influenced by the hope of employment in subsequent litigation.

However, several members expressed reluctance at having to condemn such practice as unethical in the given situation since (a) the claim was just, (b) the Legislator was under a duty to sponsor such legislation and was responsible for plaintiff being in a position to collect, (c) the litigation would be largely a formality except for the amount, and (d) because it is common knowledge that many lawyer legislators are on legal retainer fees which are naturally calculated to improperly influence legislation of the subject matter embraced by such retainers and the conduct condemned in the instant case by comparison seems less subject to censure. (9-0)