Untitled Texas Attorney General Opinion
GA-0884
| Tex. Att'y Gen. | Jul 2, 2011Background
- Texas Attorney General GA-0884 addresses non-indigent counsel appointments in Archer County, following a 2009 standing order fee schedule for indigent defense and a 2010 contract with two attorneys at $150 per guilty plea for misdemeanors.
- Question presented: whether a County Judge may appoint counsel for a non-indigent defendant and whether fees may exceed the county contract amount.
- Statutory framework includes Art. 26.04(c) allowing appointment if interests of justice require, and Art. 26.05 establishing county fee schedules and payment methods for appointed counsel.
- Art. 42.12 permits supervision conditions to require reimbursement of defense costs; Article 26.05(g) permits payment by defendant based on ability to pay.
- Court clarifies that appointment for non-indigents may occur when the interests of justice require; county may not unilaterally pay more than the scheduled fee under Art. 26.05; funds under supervision are court costs per Art. 26.05(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May a county judge appoint counsel for a non-indigent defendant? | Archer County may appoint if interests of justice require. | Appointment limited; generally not required for non-indigents unless justice requires. | Yes, under interests of justice. |
| Can the court order payment of attorney fees greater than the county contract rate? | Fees could potentially exceed contract terms depending on statutory guidance. | County commissioners cannot set higher fees than the established Art. 26.05 schedule. | No; must follow Art. 26.05 schedule regardless of contract. |
| How should funds received under an order of community supervision be treated when exceeding fees paid to counsel? | Excess funds might be handled variably per contract terms. | Funds should be deposited as court costs per Art. 26.05(g). | Excess funds deposited as court costs under Art. 26.05(g). |
Key Cases Cited
- Gray v. Robinson, 744 S.W.2d 604 (Tex. Crim. App. 1988) (general rule: no duty to appoint counsel absent indigency)
- In re Brookshire Grocery Co., 250 S.W.3d 66 (Tex. 2008) (distinguishes 'and' vs 'or' in statutory terms; supports discretion)
- Westergren v. Banales, 773 S.W.2d 764 (Tex. App.-Corpus Christi 1989) (court shall appoint counsel when indigent or interests of justice require)
- Chadwick v. State, 309 S.W.3d 558 (Tex. Crim. App. 2010) (appointment for competency/defendant's ability to proceed; interests of justice contexts)
- Ex parte Gonzales, 945 S.W.2d 830 (Tex. Crim. App. 1997) (notes appointments may occur for limited appellate time or other interests)