Scenario:

In a county with no County Court at Law, all five members of Commissioners Court are sued in their official capacity, for some alleged wrong.

County Attorney files an answer on behalf of the four Commissioners, and the County Judge.

County Attorney shows up in County Court on behalf of the State if Texas, in front of the same County Judge that he represents in the suit against the Commissioners Court.

Does the County Judge, who has before him his attorney, who is concurrently representing the County Judge in another court, have a problem with the appearance of impropiety that might call for recusal? And does the prosecutor have to be representing the County Judge in a lawsuit, or does the fact that the prosecutor advises the Commissioners Court various legal matters raise the same potential for the appearance of impropiety?

The Texas Code of Judicial Conduct specefies that County Judges are not subject to it when they are performing admisitrative tasks as County Judge, but does it follow that nothing the County Judge does when wearing an Administrator's hat can be used against him when he is wearing his Judicial hat?

The Texas Judicial Conduct Commisssion said that they don't recall this ever coming up before, but that it would be prudent for the County Judge to disclose the potential conflict, and see if anyone filed a motion for recusal, and then let a visiting judge rule.

The research I have done shows that it may be a conclift for a Judge to try a case involving an attorney who represents the Judge's personal in another case, but I have not found a case involving a County Judge being sued only in his official capacity.

If a motion to recuse were ever filed, I would argue that the Code of Judical Conduct recognises that County Judges are a special case, and that the Texas Legislature created the system where local prosecutors are also civil law represenatives for County officials, so by implication the Legislature has approved of this situation.

I'm not real happy with that answer. I'm even less happy with the prospect of losing a motion for recusal, and facing the possibility of the County Judge being recused in every case.

Has anyone had this come up?

If you're representing the commissioners court members in their official capacity, you're not representing the individuals -- you're representing the county. Texas courts have uniformly followed the rule set down by the big Supremes in Kentucky v. Graham that an official capacity suit is simply another way of suing the entity the defendant official serves, not the individual official. The individuals may be interested in the outcome, but that's no different than any local district judge hearing a case involving the county, given that a portion of his/her income comes from the county.