Can a Texas court appoint a lawyer for a criminal defendant who isn't indigent?

Plain-English summary

Jack A. McGaughey, the 97th District Attorney, asked the Attorney General three questions tied to how Archer County paid for criminal defense. In 2009 the county and district judges serving Archer County issued a standing order setting a fee schedule for attorneys appointed to represent indigent defendants. In 2010 the commissioners court separately contracted with two attorneys to handle indigent cases, with a basic rate of $150 for each guilty plea in a single misdemeanor case. The questions were about appointing lawyers for defendants who are not poor, and about how the fees those defendants owe relate to the cheaper contract rate.

On the first question, the opinion concluded that a court may appoint counsel for a defendant who is not indigent. The general rule is that a court has no duty to appoint a lawyer unless the defendant shows indigency. But article 26.04(c) of the Code of Criminal Procedure says a court "shall" appoint counsel whenever it determines a defendant is indigent "or" that the interests of justice require representation. Because the statute uses the disjunctive "or," the opinion read it to allow appointing counsel for a non-indigent person when the interests of justice so require. The opinion did not decide when those circumstances exist; it noted there is little judicial guidance on appointing counsel in the interests of justice for a defendant who is not indigent.

On the second question, the opinion concluded that a court may order a defendant, as a condition of community supervision, to pay attorney's fees according to the county's article 26.05 fee schedule, regardless of the lower amount in the commissioners court's contract with private attorneys. Article 26.05 requires the county's judges trying criminal cases to adopt a fee schedule, and all appointed-counsel compensation is paid according to it. Section 26.05(g) lets a court order a defendant with financial resources to pay the cost of the legal services he can afford, and article 42.12 lets community-supervision conditions require reimbursement of appointed-counsel costs. No statute lets a commissioners court unilaterally set appointed-attorney pay at a figure different from the judges' fee schedule, so the judges' schedule, not the contract, governs what the defendant can be ordered to pay.

On the third question, the opinion concluded that funds a defendant pays under a community-supervision order should be deposited as court costs under article 26.05(g), regardless of the amounts the commissioners court agreed to in its contract with the individual attorneys.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

Trial courts and county judges (as the opinion held for them): The opinion told the court that it could appoint counsel for a defendant who is not indigent when the interests of justice require, even though it has no general duty to do so. It also said the court could order a defendant who can pay to reimburse attorney's fees as a community-supervision condition, measured by the county's article 26.05 fee schedule.

Archer County's commissioners court (as the opinion described it): The opinion treated the commissioners court's contract rate (the $150-per-misdemeanor-plea figure) as not controlling what a defendant can be ordered to pay. It read the statutes to give the judges, through their article 26.05 fee schedule, the authority over appointed-counsel compensation that the defendant's reimbursement is measured against.

Defendants ordered to pay (as the opinion described it): Under the opinion, a defendant placed on community supervision could be ordered to pay attorney's fees up to the county's fee schedule amount and within his ability to pay, even if that exceeds what the county actually paid its contract attorneys.

On the county's books (where the funds go): The opinion said money collected under a community-supervision order should be deposited as court costs under article 26.05(g), not split or refunded based on the contract amount.

Where the opinion stopped: It did not decide when the "interests of justice" justify appointing counsel for a non-indigent defendant, noting it was unaware of judicial guidance on that point, and it did not resolve the competing factual accounts the requestor and the county judge submitted.

Common questions

Does a Texas court ever have to appoint a lawyer for someone who isn't poor?
According to the opinion, a court generally has no duty to appoint counsel without a showing of indigency, but it may appoint counsel for a non-indigent defendant when the interests of justice require it.

Can a defendant be ordered to repay attorney's fees as a condition of probation?
Yes. The opinion concluded that a court may require a defendant, in an order of community supervision, to pay attorney's fees according to the county's article 26.05 fee schedule, to the extent the defendant has the ability to pay.

Does the county's cheaper contract with defense attorneys cap what a defendant owes?
No. The opinion concluded that the judges' article 26.05 fee schedule, not the commissioners court's contract rate, sets the amount a defendant can be ordered to pay, even if that is higher than what the county paid the contract attorneys.

What happens to money the county collects above what it paid the attorneys?
The opinion concluded those funds should be deposited as court costs under article 26.05(g), regardless of the amounts in the contract.

Background and statutory framework

A court ordinarily has no duty to appoint counsel without a showing of indigency. Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988). Article 26.04(c) of the Code of Criminal Procedure directs a court to appoint counsel whenever it determines a defendant charged with a felony or a confinement-punishable misdemeanor is indigent or that the interests of justice require representation. Tex. Code Crim. Proc. Ann. art. 26.04(c) (West Supp. 2010). The opinion read the disjunctive "or" to permit appointment for a non-indigent defendant in the interests of justice. See In re Brookshire Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008) (distinguishing the conjunctive "and" from the disjunctive "or"); Bd. of Ins. Comm'rs v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908 (Tex. 1944); Westergren v. Banales, 773 S.W.2d 764, 765 (Tex. App.-Corpus Christi 1989, no writ).

Article 26.05 requires the county's county court, statutory county court, and district court judges trying criminal cases to adopt a fee schedule for appointed-counsel compensation, and all such compensation is paid according to it. Tex. Code Crim. Proc. Ann. art. 26.05(b)-(c) (West Supp. 2010); id. art. 26.05(b). Section 26.05(g) lets a court order a defendant with financial resources to pay the cost of the legal services he is able to afford, and article 42.12 lets community-supervision conditions require reimbursement of appointed-counsel costs. Id. art. 26.05(g); id. art. 42.12, § 11(a)(11). Article 26.04 separately allows an alternative appointment program (which might include a contract with individual attorneys), but only if approved by two-thirds of the county's judges. Id. art. 26.04(g)-(h) (West Supp. 2010); id. art. 26.04(g). The opinion noted that the Fair Defense Act was amended effective September 1, 2011, creating the Texas Indigent Defense Commission. Tex. Gov't Code Ann. §§ 79.001-.039.

The opinion declined to decide when the interests of justice justify appointing counsel for a non-indigent defendant, citing the lack of guidance on the point. Chadwick v. State, 309 S.W.3d 558, 562 (Tex. Crim. App. 2010); Ex parte Gonzales, 945 S.W.2d 830, 832 n.1 (Tex. Crim. App. 1997); Estupinan v. State, No. 01-94-00820-CR, 1996 WL 137456 (Tex. App.-Houston [1st Dist.] 1996, no pet.).

Citations

Cases:

• Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988)
• In re Brookshire Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008)
• Bd. of Ins. Comm'rs v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908 (Tex. 1944)
• Westergren v. Banales, 773 S.W.2d 764, 765 (Tex. App.-Corpus Christi 1989, no writ)
• Chadwick v. State, 309 S.W.3d 558, 562 (Tex. Crim. App. 2010)
• Ex parte Gonzales, 945 S.W.2d 830, 832 n.1 (Tex. Crim. App. 1997)
• Estupinan v. State, No. 01-94-00820-CR, 1996 WL 137456 (Tex. App.-Houston [1st Dist.] 1996, no pet.)

Statutes:

• Tex. Code Crim. Proc. Ann. art. 26.04(c) (West Supp. 2010)
• Tex. Code Crim. Proc. Ann. art. 26.05(b)-(c) (West Supp. 2010)
• Tex. Code Crim. Proc. Ann. art. 26.05(b)
• Tex. Code Crim. Proc. Ann. art. 26.05(g)
• Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(11)
• Tex. Code Crim. Proc. Ann. art. 26.05(f)-(g) (West Supp. 2010)
• Tex. Code Crim. Proc. Ann. art. 26.04(g)-(h) (West Supp. 2010)
• Tex. Code Crim. Proc. Ann. art. 26.04(g)
• Tex. Gov't Code Ann. §§ 79.001-.039

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0884
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0884.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 7, 2011

The Honorable Jack A. McGaughey Opinion No. GA-0884
97th District Attorney
Post Office Box 55 Re: Appointment of counsel in criminal cases for
Montague, Texas 76251-0055 non-indigent defendants (RQ-0962-GA)

Dear Mr. McGaughey:

You ask about the appointment of counsel in criminal cases for non-indigent defendants.[1] You provide the following account of events giving rise to your question.[2] In 2009, the county and district judges serving Archer County, Texas, issued a standing order establishing a fee schedule for attorneys appointed to represent indigent criminal defendants in Archer County, which you inform us has not been superseded. Request Letter at 1. In 2010, the commissioners court of Archer County entered into a contract with two attorneys retained to represent indigent defendants in cases in the county, with the basic rate being $150 for each guilty plea in a single misdemeanor case. Id. at 1-2.

You first ask whether a "County Judge may appoint counsel in criminal cases for non-indigent defendants." Id. at 1. Generally, a court does not have a duty to appoint counsel absent a showing of indigency. Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988). However, the Code of Criminal Procedure provides that a court "shall" appoint counsel "[w]henever a court or the court's designee ... determines that a defendant charged with a felony or a misdemeanor punishable by confinement is indigent or that the interests of justice require representation of a defendant in a criminal proceeding ...." TEX. CODE CRIM. PROC. ANN. art. 26.04(c) (West Supp. 2010) (emphasis added).[3] Because the statute uses the disjunctive "or," it allows for the possibility that counsel may be appointed to a non-indigent person in the interests of justice. See In re Brookshire Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008) ("Ordinarily the words 'and' and 'or,' are in no sense interchangeable terms, but, on the contrary, are used in the structure of language for purposes entirely variant, the former being strictly of a conjunctive, the latter, of a disjunctive, nature.") (quoting Bd. of Ins. Comm'rs v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908 (Tex. 1944)); see also Westergren v. Banales, 773 S.W.2d 764, 765 (Tex. App.-Corpus Christi 1989, no writ) ("The law is that a trial court shall appoint one or more practicing attorneys to represent a defendant whenever the court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is: 1) indigent or 2) that the interests of justice requires such representation."). We conclude that under the proper circumstances, a court may appoint counsel to a non-indigent person when the interests of justice so require.[4]

You next ask "[w]hether the County Judge may require the payment of attorney's fees from a defendant under an order of community supervision in an amount greater than the contractual amount for attorney's fees provided in the County's contract with a group of criminal defense attorneys." Request Letter at 1. Article 26.05 of the Code of Criminal Procedure requires a county's county court, statutory county court, and district court judges trying criminal cases to adopt a fee schedule establishing the rate of compensation of appointed counsel in the county. TEX. CODE CRIM. PROC. ANN. art. 26.05(b)-(c) (West Supp. 2010). All payments for the compensation of appointed counsel are to be paid according to the schedule of fees established for the county. Id. art. 26.05(b). However, section 26.05(g) further provides that "[i]f the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay." Id. § 26.05(g). Under article 42.12 of the Code of Criminal Procedure, conditions of community supervision may require a defendant to "[r]eimburse the county in which the prosecution was instituted for compensation paid to appointed counsel for defending the defendant in the case, if counsel was appointed ...." Id. art. 42.12, § 11(a)(11). Consequently, a court may require the payment of attorney's fees in an order of community supervision in an amount consistent with the county's fee schedule and the defendant's ability to pay.

You ask specifically, however, about a court's authority to order the defendant to pay attorney's fees in an amount greater than the amount provided in the county's contract with private attorneys for appointed criminal defense services. See Request Letter at 1. The statutes do not specifically address compensation of attorneys by a commissioners court's contract with individual attorneys. No provision authorizes a county commissioners court to unilaterally establish the compensation of appointed attorneys at an amount different from the fee schedule established by the county's judges under article 26.05.[5] Consequently, we conclude that a county judge may require the defendant, in an order of community supervision, to pay attorney's fees according to the county's schedule of fees established under article 26.05, regardless of the county commissioners court's contract with individual attorneys.

Finally, you ask about the proper disposition of funds received by the county under an order of community supervision that are in excess of the amount of funds paid to the appointed attorneys under a contract with the county for representing criminal defendants. Request Letter at 1. Funds paid under an order of community supervision should be deposited as court costs under article 26.05(g), regardless of the amounts agreed to in the contract by the commissioners court and the individual attorneys. TEX. CODE CRIM. PROC. ANN. art. 26.05(f)-(g) (West Supp. 2010).

SUMMARY

Although a court generally has no duty to appoint counsel to a non-indigent, there may be circumstances in which a court may do so when the interests of justice so require.

A court may require a defendant, in an order of community supervision, to pay attorney fees according to the county's schedule of fees established under article 26.05, regardless of the county commissioners court's contract with individual attorneys.

Funds paid under an order of supervision should be deposited as court costs under article 26.05(g), regardless of the amounts agreed to in a contract by the commissioners court and the individual attorneys. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2010).

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jack A. McGaughey, 97th District Attorney, to Office of the Attorney General at 1 (Apr. 11, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] We have also received briefing that asserts additional or different facts. See Letter from Honorable Gary W. Beesinger, Archer County Court Judge, to Office of the Attorney General at 1-2 (Apr. 15, 2011). As this office does not attempt to resolve fact questions, we consider your statement of facts solely as premises for your questions. See Tex. Att'y Gen. Op. No. GA-0738 (2009) at 2 n.3.

[3] Article 26.04 and other provisions of the Fair Defense Act were amended during the regular session of the 82nd Legislature, effective September 1, 2011. See Act of May 23, 2011, 82d Leg., R.S., ch. 671, § 1, 2011 Tex. Sess. Law Serv. 1622, 1622-24 (West) and Act of May 26, 2011, 82d Leg., R.S., ch. 984, § 7, 2011 Tex. Sess. Law Serv. 2460, 2468-69 (West) (acts to be codified at TEX. CODE CRIM. PROC. ANN. art. 26.04). Pertinent here, H.B. 1754 creates the Texas Indigent Defense Commission to develop policies and standards for indigent defense, and provides procedures for a county to establish managed assigned-counsel programs. Act of May 26, 2011, 82d Leg., R.S., ch. 984, § 1, 2011 Tex. Sess. Law Serv. 2460, 2460-66 (West) (to be codified at TEX. GOV'T CODE ANN. §§ 79.001-.039).

[4] You do not ask and we do not address whether the appointment of counsel is appropriate under particular circumstances. We are unaware of any judicial guidance for the appointment of counsel in the interests of justice when the defendant is not indigent. Cf. Chadwick v. State, 309 S.W.3d 558, 562 (Tex. Crim. App. 2010) (upholding appointment of counsel for defendant competent to stand trial but incompetent to conduct defense); Ex parte Gonzales, 945 S.W.2d 830, 832 n.1 (Tex. Crim. App. 1997) (noting that the trial court judgment recited that the defendant was not indigent, but appointed counsel because of limited time to appeal); Estupinan v. State, No. 01-94-00820-CR, 1996 WL 137456 (Tex. App.-Houston [1st Dist.] 1996, no pet.) (not designated for publication) (noting that the trial court appointed counsel to avoid a mistrial in "the interests of justice" rather than because of indigency).

[5] Article 26.04 of the Code of Criminal Procedure authorizes the establishment of an alternative program for appointing counsel, which might include a contract with individual attorneys. TEX. CODE CRIM. PROC. ANN. art. 26.04(g)-(h) (West Supp. 2010). Such an alternative program, however, must also be approved by two-thirds of the county's judges. Id. art. 26.04(g).