Kansas Attorney General Opinion 2013-015

October 23, 2013
ATTORNEY GENERAL OPINION NO. 2013- 15
The Honorable Anthony Hensley
Senator, Nineteenth District
State Capitol, Room 318-E
Topeka, Kansas 66212
Re: 	Counties and County Officers—County Attorney—Duties; Qualifications;
Holding Other Office
Synopsis: 	An attorney is not prohibited by K.S.A. 19-705 from serving simultaneously
as a county attorney for more than one county. 	Any prohibition requires
an amendment to the statutory qualifications of a county attorney. 	Cited
herein: K.S.A. 2013 Supp. 19-101a; 19-701; 19-702; 19-704; 19-705.
* 	* 	*
Dear Senator Hensley:
As Senator for the Nineteenth District, you ask whether a person who is elected as
county attorney in one county may also hold office as the elected county attorney in
another county within the State of Kansas and, if so, what actions may be taken to
preclude such service. 	We begin our analysis with a review of the qualifications and
duties of a county attorney.
The 	office 	of 	county 	attorney 	is 	created 	by 	K.S.A. 	19-701 	et 	seq. 	Regarding
qualifications, a county attorney must be “admitted to practice within the state of
Kansas, and is at the time of nomination and election a regularly qualified practicing
attorney of this state.”1 Neither the Constitution nor a statute requires as a qualification
for the office of county attorney residence in the county at the time of filing, nomination,
election, or holding office.2
1 K.S.A. 19-701.
2 Kansas Attorney General Opinions No. 95-93 and No. 76-187.

The Honorable Anthony Hensley
Page 2
The duties of a county attorney are “to appear in any court having jurisdiction within the
county and prosecute or defend on behalf of the people all actions and proceedings,
civil or criminal, in which the state or the county is a party or interested” 3 and to provide
“opinions and advice to the board of county commissioners and other civil officers of the
county, when requested by such board or officers, upon all matters in which the county
is interested, or relating to the duties of such board or officers, in which the state or
county may have an interest.” 4 In short, the office of county attorney is a county office.5
Your inquiry concerns the prohibition in K.S.A. 19-705 that no “county attorney while in
office be eligible to or hold any judicial or other county office whatsoever.” 	Prior
interpretations of this limitation by our office are useful in answering your question.
Whether the limitation in K.S.A. 19-705 applied to holding a judicial office in another
county was addressed in Attorney General Opinion No. 75-452 as follows:
[T]he better construction of this statute is to read together the offices
which are stated disjunctively, ‘any judicial or other county office,’ and to
construe the judicial offices to which the disqualification attaches to be
those judicial offices located in the county in which the county attorney
serves. 	Accordingly, construed in this manner, a county attorney is
disqualified from holding, during his or her tenure as county attorney any
judicial office within the county in which he or she serves, and is not
disqualified by operation of this statute from serving as municipal judge in
a city located outside the jurisdiction of the county which he [or she]
serves as county attorney.
Subsequently, our office was asked to construe the prohibition in K.S.A. 19-705 to
determine whether a county attorney in one county may also hold office as county
attorney in another county within Kansas. 	Relying upon Attorney General Opinion No.
75-452, we concluded that:
[T]he prohibition against holding ‘any . . . other county office’ refers to
another county office within the same county. Therefore a county attorney
is not prohibited by K.S.A. 19-705 from serving as county attorney in
another county. 	This conclusion is further supported by the lack of any
residence requirement for county attorneys. 	We believe that a reason for
not having a residence requirement is due to difficulty in finding qualified
persons to serve as county attorney in certain counties. 6
3 K.S.A. 19-702(a).
4 K.S.A. 19-704.
5 Wall v. Harrison, 201 Kan. 598, 604 (the offices of county attorney were created to assist the counties in
carrying out their usual and necessary political functions, and the “county attorneys are elected by voters
of their respective counties; they are paid from funds levied and collected by their counties; [and] their
territorial jurisdiction is limited generally to their counties”).
6 Correspondence to Laurel D. McClellan, Kingman County Attorney, dated May 8, 2000.

The Honorable Anthony Hensley
Page 3
Finally, in Attorney General Opinion No. 2003-4, we were asked whether a court could
appoint a county or district attorney from a different judicial district as a special
prosecutor 	when 	the 	county 	or 	district 	attorney 	in 	the 	local 	judicial 	district 	was
disqualified from prosecuting a case. Answering in the affirmative, we quoted a Kansas
case 	wherein 	the 	appellate 	court 	approved 	such 	reciprocal 	non-compensated
arrangements:
There is no law that requires a county attorney to attend any court or do
any business, civil or criminal, that requires his or her personal attendance
outside his own county. 	However, there is also no law that prevents a
county 	attorney 	from 	voluntarily 	appearing 	without 	compensation 	in
another county to prosecute an action which arises in that county.7
We 	then 	addressed 	whether 	a 	county 	attorney 	could 	accept 	compensation 	for
prosecuting a matter in another county and concluded as follows:
Insofar as whether an attorney from another county or district attorney’s
office can accept a fee for prosecuting a matter in another county, K.S.A.
19-705 prohibits a county or district attorney from accepting a fee for the
performance of official duties required by law. Those official duties include
prosecuting criminal matters in the court having jurisdiction in the county.
Therefore, 	K.S.A. 	19-705 	would 	not 	preclude 	accepting 	a 	fee 	for
prosecuting a case in another county on behalf of a disqualified [county or]
district attorney’s office.
K.S.A. 19-705 has not changed since the above opinions by this office. Additionally, our
research found no other statute or case law to warrant a different conclusion.
In addressing what can be done to preclude an attorney from serving simultaneously as
county attorney in two different counties, we again refer to a prior Attorney General
Opinion:
Only 	the 	Kansas 	legislature 	has 	the 	authority 	to 	impose 	election
restrictions or qualifications upon elected county officers. 	See K.S.A.
1994 Supp. 19-101a(7) 8 (“[c]ounties shall be subject to all acts of the
legislature concerning elections, election commissioners and officers and
their duties as such officers and the election of county officers.”) 	If a
nonresident of the county runs for a county office, the electorate may
decide 	if 	county 	residence 	is 	important 	and 	vote 	accordingly.
Alternatively, the state legislature may change current law to require
residency. 9
7 Quoting State v. Rollins, 24 Kan. App. 2d 15, 23, reversed on other grounds, 264 Kan. 466 (1998).
8 Codified in K.S.A. 2013 Supp. 19-101a(6).
9 Attorney General Opinion No. 95-93.

The Honorable Anthony Hensley
Page 4
In conclusion, K.S.A. 19-705 does not prohibit an attorney from serving simultaneously
as county attorney for more than one county. Any prohibition requires an amendment to
the statutory qualifications of a county attorney.
Sincerely,
Derek Schmidt
Attorney General
Janet L. Arndt
Assistant Attorney General
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