Can a Texas court appoint a paid lawyer for a poor death-row inmate's habeas appeal?

Plain-English summary

The Dallas County District Attorney told the Attorney General that a number of Dallas County trial judges thought they lacked the power to appoint or pay a lawyer for a person convicted of capital murder who wanted to challenge that conviction in a state habeas corpus proceeding under Code of Criminal Procedure article 11.07. He asked three questions: whether a trial judge can make such an appointment, whether the county commissioners court must pay the appointed lawyer, and whether the judge can hand the job to an organization (an agency, a legal aid society like the Texas Resource Center, or a law firm) instead of to an individual lawyer.

On the first question, the office said yes. Article 1.051 of the Code of Criminal Procedure expressly establishes the power, and subsection (d)(3) specifically authorizes appointing counsel for an indigent defendant in a postconviction habeas proceeding "if the court concludes that the interests of justice require representation." The right to counsel also includes the right to the lawyer's help in making "adequate preparation for the proceeding," a point the office reinforced by analogy to the U.S. Supreme Court's reading of the parallel federal statute in McFarland v. Scott.

On the second question, the office said the county must pay. The Texas Court of Criminal Appeals held in Smith v. Flack that the attorney-fee statute (article 26.05) puts a mandatory duty on the county to pay court-appointed attorney fees, and that the commissioners court's role is the ministerial act of reviewing the award. Although article 26.05 had been rewritten since Smith, the courts read the new version the same way. So the trial judge has a ministerial duty to award fees (the amount is discretionary) once the lawyer submits a proper fee request, and the commissioners court, under Local Government Code section 115.021, has a ministerial duty to direct payment of an award that matches the county's fee schedule. The commissioners court cannot simply refuse; it can resist only by showing the award is so unreasonable as to be an abuse of discretion.

On the third question, the office drew a careful line. A court may appoint only a licensed individual attorney, not an organization, because an agency or association cannot itself be licensed to practice law (article 26.04 says the court appoints "one or more practicing attorneys"). But nothing stops a trial court from asking an organization, even one located outside the county, to find a qualified attorney willing to take the case. When it does, the court still has to review the proffered lawyer's ability and experience and then appoint that individual by formal designation. The office gave two reasons for insisting on naming the individual: the lawyer's independent professional judgment must not be controlled by the organization that recommends or pays the lawyer, and a clear designation avoids a damaging "fragmentation of responsibility" over who is actually answerable for the defense.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

This opinion sits at a turning point. In 1995 the Texas Legislature created a separate statutory scheme for counsel in death-penalty postconviction habeas cases (Code of Criminal Procedure article 11.071), which changed how and by whom counsel is appointed in capital habeas matters. The appointed-counsel and attorney-fee provisions cited here (articles 1.051, 26.04, and 26.05) have also been amended over the years. Read this page for the office's 1995 reasoning, and verify current Texas law before relying on any specific procedure, especially in a capital case.

What the opinion meant at the time

For Dallas County trial judges and District Attorney Vance (the requestor): The opinion told the judges directly that they did have the authority they doubted: they could appoint counsel for an indigent capital defendant in an article 11.07 habeas proceeding when the interests of justice required it.

For county commissioners courts: The opinion described their role as ministerial. Once a trial court awarded fees consistent with the county fee schedule, the commissioners court had to direct payment and could push back only by showing the award was an abuse of discretion.

For appointed defense lawyers: The opinion confirmed an appointed lawyer's right to be paid under article 26.05 upon a proper fee request, and (in a footnote) that fees are not available for work done before the appointment, only for services after a formal appointment under article 26.04.

For legal aid organizations and public-interest law firms: The opinion told them they could recommend and supply a lawyer, but could not be "appointed" themselves and could not control the lawyer's professional judgment; the court had to formally designate the individual attorney.

Common questions

Could a Texas trial court appoint a lawyer for a poor capital defendant's habeas case?
Yes. Under this 1995 opinion, article 1.051(d)(3) expressly authorized a trial court to appoint counsel for an indigent defendant in a postconviction habeas proceeding under article 11.07 when the interests of justice required representation.

Did the county have to pay the appointed lawyer?
Yes. The county commissioners court had a ministerial duty to direct payment of fees a trial court awarded under article 26.05 that matched the county's fee schedule, unless it could show the award was so unreasonable as to be an abuse of discretion.

Could the judge appoint a legal aid group or law firm instead of an individual lawyer?
No. Only a licensed individual attorney can be appointed. A court could ask an organization to find a willing, qualified lawyer, but then had to review that lawyer's qualifications and appoint the individual by formal designation.

Why did the lawyer have to be named individually?
To keep the organization from controlling the lawyer's independent professional judgment, and to avoid confusion over who is actually responsible for protecting the defendant's interests.

Could the recommending organization be located outside the county?
Yes. The opinion saw no legal impediment to a trial court asking an agency or association outside the county to procure a qualified attorney willing to represent the defendant.

Background and statutory framework

Article 11.07 of the Code of Criminal Procedure governs writs of habeas corpus challenging confinement under a final felony conviction. The question was whether a trial court could appoint and fund counsel for an indigent capital defendant in such a proceeding. Article 1.051 establishes the right to counsel: subsection (a) includes the right to consult with counsel and to adequate preparation, subsection (b) defines "indigent," subsection (c) entitles an indigent defendant to appointed counsel in adversary judicial proceedings that may result in confinement, and subsection (d)(3) specifically authorizes appointment in a habeas corpus proceeding when the interests of justice require it. The office cited the U.S. Supreme Court's decision in McFarland v. Scott, 114 S. Ct. 2568 (1994), reading the analogous federal right to appointed counsel for capital habeas petitioners to include help preparing the application.

For payment, the office relied on Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987), which held a former version of article 26.05 imposed a mandatory duty on the county to pay court-appointed attorney fees and made the commissioners court's review a ministerial act, alongside Local Government Code section 115.021, which directs the commissioners court to audit, settle, and pay county accounts. Although article 26.05 was rewritten after Smith, later courts read the new version the same way (Westergren v. Banales, 773 S.W.2d 764 (Tex. App.—Corpus Christi 1989, no writ)), and the Amarillo court in Gray County v. Warner & Finney, 727 S.W.2d 633 (Tex. App.—Amarillo 1987, no writ) held that an order under article 26.05 is presumed reasonable and must be allowed unless the commissioners court shows it is so unreasonable as to be an abuse of discretion (see also Attorney General Opinion H-499 (1975)).

On who may be appointed, article 26.04(a) requires the court to appoint "one or more practicing attorneys," and only a licensed individual can serve. The office noted an agency or association cannot be licensed to practice law because it cannot meet the licensing requirements, including the moral-character and fitness assessment (Government Code chapter 82, subchapter B, and section 82.030), citing Ex parte Engle, 418 S.W.2d 671 (Tex. Crim. App. 1967). It nonetheless allowed a court to ask an organization to procure a willing, qualified lawyer, while holding that the court must ensure the assigned counsel has sufficient ability and experience (Rodriguez v. State, 340 S.W.2d 61 (Tex. Crim. App. 1960)) and must formally designate the individual under article 26.04. The office added that the organization should act only as a conduit that does not control the lawyer's professional judgment (Touchy v. Houston Legal Foundation, 432 S.W.2d 690 (Tex. 1968); Scruggs v. Houston Legal Foundation, 475 S.W.2d 604 (Tex. Civ. App.—Houston [1st Dist.] 1972, writ ref'd); Texas disciplinary rule 5.04(c)), and that a clear designation avoids a fragmentation of responsibility detrimental to the defendant (State v. Allies, 597 P.2d 64 (Mont. 1979); State v. Carter, 311 S.E.2d 5 (N.C. Ct. App. 1984)). In a footnote, the office noted that fees under article 26.05 are not available for work done before a formal appointment (Gray v. Robinson, 744 S.W.2d 604 (Tex. Crim. App. 1988)).

Citations

Statutory provisions discussed:

• Code of Criminal Procedure art. 1.051 (right to counsel; subsection (d)(3) habeas appointment in the interests of justice)
• Code of Criminal Procedure art. 11.07 (postconviction habeas in felony cases)
• Code of Criminal Procedure art. 26.04 (appointment of counsel) and art. 26.05 (attorney fees)
• Local Government Code § 115.021 (commissioners court duty to audit, settle, and pay accounts)
• Government Code ch. 82, subch. B, and § 82.030 (attorney licensing; character and fitness)

Cases discussed:

• McFarland v. Scott, 114 S. Ct. 2568 (1994) (federal right to appointed capital-habeas counsel includes help preparing the application)
• Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987) (mandatory county duty to pay appointed-counsel fees; ministerial review)
• Westergren v. Banales, 773 S.W.2d 764 (Tex. App.—Corpus Christi 1989, no writ); Gray County v. Warner & Finney, 727 S.W.2d 633 (Tex. App.—Amarillo 1987, no writ) (fee-award duty; abuse-of-discretion standard)
• Ex parte Engle, 418 S.W.2d 671 (Tex. Crim. App. 1967) (only licensed individuals may be appointed)
• Rodriguez v. State, 340 S.W.2d 61 (Tex. Crim. App. 1960) (court's duty to ensure able and experienced counsel)
• Touchy v. Houston Legal Foundation, 432 S.W.2d 690 (Tex. 1968); Scruggs v. Houston Legal Foundation, 475 S.W.2d 604 (Tex. Civ. App.—Houston [1st Dist.] 1972, writ ref'd) (organization may not control the lawyer's professional judgment)
• State v. Allies, 597 P.2d 64 (Mont. 1979); State v. Carter, 311 S.E.2d 5 (N.C. Ct. App. 1984) (need for clear designation of responsible counsel)
• Gray v. Robinson, 744 S.W.2d 604 (Tex. Crim. App. 1988) (no fees for work before appointment)

Prior Attorney General opinion cited:

• H-499 (1975)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0354
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1995/dm0354.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain (including footnote numbering) — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 22, 1995

Honorable John Vance
Dallas County District Attorney
Frank Crowley Courts Building, LB 19
Dallas, Texas 75207-4313

Opinion No. DM-354

Re: Whether a trial court may appoint an attorney to represent an indigent capital murder defendant in a postconviction habeas corpus proceeding, and related questions (RQ-658)

Dear Mr. Vance:

You ask us several questions regarding court appointment of counsel to represent indigent capital defendants in postconviction state habeas corpus proceedings. Code of Criminal Procedure article 11.07 regulates the procedure for a writ of habeas corpus challenging confinement under a final judgment of conviction in a felony case. You represent that "[a] number of Dallas County trial court judges are under the impression that they do not have the authority to appoint or compensate an attorney to represent an individual convicted of capital murder" in a proceeding under article 11.07.

First, you ask whether a trial court judge has the power to make such appointments. We believe that article 1.051 of the Code of Criminal Procedure expressly establishes that power.[1] Subsection (d)(3) of article 1.051, in particular, expressly grants an entitlement to appointment of counsel to an indigent criminal defendant in a postconviction "habeas corpus proceeding if the court concludes that the interests of justice require representation." The statutory right to counsel includes the right to the assistance of counsel in making "adequate preparation for the proceeding." Code Crim. Proc. art. 1.051(a); cf. McFarland v. Scott, 114 S. Ct. 2568, 2572 (1994) (federal statute granting right to appointed counsel to capital defendants in federal habeas corpus proceedings "includes a right to legal assistance in the preparation of a habeas corpus application").

Second, you ask whether the Commissioners Court of Dallas County must pay compensation to counsel so appointed by a Dallas County trial court, in accordance with the court's order setting attorney fees. The Texas Court of Criminal Appeals held in Smith v. Flack, 728 S.W.2d 784 (Tex. Crim. App. 1987), that a former version of article 26.05 of the Code of Criminal Procedure "places a mandatory duty upon the county to pay court-appointed attorney fees," id. at 789-90, and that other law requires the commissioners court "to perform the ministerial act of reviewing" attorney fee awards ordered under article 26.05, id. at 792; see Local Gov't Code § 115.021 ("The commissioners court of a county shall audit and settle all accounts against the county and shall direct the payment of those accounts"). Although article 26.05 has been rewritten since Smith, compare Act of May 30, 1987, 70th Leg., R.S., ch. 979, § 3, 1987 Tex. Gen. Laws 3321, 3323-24 (current version) with Act of May 31, 1981, 67th Leg., R.S., ch. 291, § 106, 1981 Tex. Gen. Laws 761, 803 (former version), the current version has been interpreted in the same manner as the former, see Westergren v. Banales, 773 S.W.2d 764, 765 (Tex. App.—Corpus Christi 1989, no writ) (duty to pay fees of appointed counsel is ministerial).

The current version places a ministerial duty on the trial court judge to award fees (the amount awarded being discretionary) upon appointed counsel's submission of a fee request in proper form. Id. Furthermore, we believe that this statute and Local Government Code section 115.021 place a ministerial duty on the Commissioners Court of Dallas County to "direct the payment," Local Gov't Code § 115.021, of an award of fees that "is in accordance with the fee schedule for that county," Code Crim. Proc. art. 26.05(c). Cf. Smith, 728 S.W.2d at 792. Speaking of the former version of article 26.05, the court in Gray County v. Warner & Finney, 727 S.W.2d 633 (Tex. App.—Amarillo 1987, no writ), held that "an order entered by the court under the authority of article 26.05 is presumed to be reasonable . . . and must be allowed unless the Commissioners Court can show that the order is so unreasonable as to amount to an abuse of discretion." Id. at 636; see Attorney General Opinion H-499 (1975). We believe that the same rule applies to the current version of article 26.05.

Third, you ask whether a trial court judge has the power to appoint a nonindividual entity, including "an agency, legal aid society, such as the Texas Resource Center, or law firm," to be responsible for assigning an individual staff attorney to represent a capital defendant in a postconviction habeas corpus proceeding under article 11.07. Article 26.04(a) of the Code of Criminal Procedure provides that "the court shall appoint one or more practicing attorneys to defend" an indigent defendant charged with a crime punishable by imprisonment.[3] Only licensed individuals may be appointed as counsel. See Ex parte Engle, 418 S.W.2d 671, 673 (Tex. Crim. App. 1967). Obviously, an agency or association cannot be licensed to practice law, for such an entity cannot satisfy all the eligibility requirements, see Gov't Code ch. 82, subch. B (regulating licensing of attorneys at law), including an assessment of an applicant's moral character and fitness, see id. § 82.030. Therefore, there is no appointment of "one or more practicing attorneys" when a trial court directs a governmental agency or legal aid society or private law partnership to provide representation by one or more attorneys.[4]

Nevertheless, we are aware of no legal impediment to a trial court's request that an agency or association, including an entity located outside the county of the appointing court, procure a qualified attorney who is willing to provide counsel to an indigent defendant who has a right to counsel under article 1.051. Still, when a trial court relies on an agency or association to assign one or more lawyers to appear as counsel for the defendant, the court has the duty to "see that counsel is assigned having sufficient ability and experience fairly to represent the defendant, to present his defense, and to protect his rights." Rodriguez v. State, 340 S.W.2d 61, 63 (Tex. Crim. App. 1960) (quoting with added emphasis 14 Am. Jur. Criminal Law, § 174, at 888 (1938)). This duty alone is sufficient reason for the trial court to review the qualifications of the lawyers proffered by the agency or association, to the extent necessary for the court to determine that the lawyers have the requisite ability and experience, and to appoint the lawyers by formal designation pursuant to article 26.04.

Other considerations also militate in favor of formal appointment of lawyers provided by agencies and associations to represent indigent criminal defendants. It is important that an agency or public-interest law firm limit its role to that of a conduit or intermediary that does not control or exploit the manner in which a lawyer employed by the agency or public-interest firm provides representation to an indigent client. See Touchy v. Houston Legal Found., 432 S.W.2d 690, 695 (Tex. 1968); Scruggs v. Houston Legal Found., 475 S.W.2d 604, 606-07 (Tex. Civ. App.—Houston [1st Dist.] 1972, writ ref'd); see also State Bar Rules, art. X, § 9 (Gov't Code) (1992) R. 5.04(c) ("A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services"). Additionally, without a formal designation of the attorney or attorneys who will be responsible for representation of a defendant, there may be a fragmentation of responsibility and authority that would be detrimental to the defendant's interests. See State v. Allies, 597 P.2d 64, 66 (Mont. 1979). To avoid confusion of responsibility, there should be a clear designation of the licensed attorney or attorneys who will be ethically obligated to protect the defendant's interests, see State v. Carter, 311 S.E.2d 5, 6 (N.C. Ct. App. 1984), and who will be subject to direct and continuous control and discipline by the court in regard to their representation of the defendant.

SUMMARY

Article 1.051(d)(3) of the Code of Criminal Procedure (the "code") expressly authorizes a trial court to appoint counsel to represent an indigent capital defendant in a postconviction habeas corpus proceeding under code article 11.07 "if the court concludes that the interests of justice require representation." The statutory right to counsel under article 1.051 includes the right to the assistance of counsel in making "adequate preparation for the proceeding." Code Crim. Proc. art. 1.051(a).

A trial court has a ministerial duty to award attorney fees (the amount awarded being discretionary), upon submission of a fee request in proper form, to counsel appointed pursuant to code article 26.05. The Commissioners Court of Dallas County has a ministerial duty to direct payment of such an award of attorney fees ordered by a Dallas County trial court if the award comports with the fee schedule for Dallas County, unless the commissioners court can show that the court's award is so unreasonable as to amount to an abuse of discretion.

A trial court may appoint only licensed attorneys pursuant to code article 26.04 and therefore may not appoint an agency or association to provide counsel to a defendant. There is no legal impediment, however, to a trial court's request that an agency or association, including an entity located outside the county of the appointing court, procure a qualified attorney who is willing to provide counsel to an indigent defendant who has a right to counsel under article 1.051. Still, when a trial court relies on an agency or association to recommend lawyers to appear as counsel for criminal defendants, the trial court should review the qualifications of the lawyers proffered by the agency or association to the extent necessary for the court to determine that the lawyers have the requisite ability and experience, and should appoint the lawyers by formal designation pursuant to article 26.04.

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by James B. Pinson
Assistant Attorney General

[1] Article 1.051 provides in pertinent part:

(a) A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding.
(b) For the purposes of this article and Articles 26.04 and 26.05 of this code, "indigent" means a person who is not financially able to employ counsel.
(c) An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement. . . . If an indigent defendant is entitled to and requests appointed counsel, the court shall appoint counsel to represent the defendant as soon as possible.
. . . .
(3) a habeas corpus proceeding if the court concludes that the interests of justice require representation. . . .
Code Crim. Proc. art. 1.051(a)-(c), (d)(3).

[3] For purposes of this provision, a "criminal proceeding" includes a habeas corpus proceeding. See id. art. 26.05(a) (providing for award of attorney fees and expenses to "counsel . . . appointed to represent a defendant in a criminal proceeding, including a habeas corpus hearing").

[4] Furthermore, in the absence of an appointment pursuant to article 26.04, an attorney providing representation to an indigent defendant is not entitled to fees under article 26.05, for that article applies only to "[a] counsel . . . appointed to represent a defendant in a criminal proceeding." Code Crim. Proc. art. 26.05(a). See Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988) (attorney's fees cannot be awarded pursuant to article 26.05 for services rendered prior to date of appointment).