ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

The Honorable Jack A. McGaughey 

97th District Attorney 

Post Office Box 55 

Montague, Texas 76251-0055 

Dear Mr. McGaughey: 

September 7,2011 

Opinion No. GA-0884 

Re: Appointment of counsel in criminal cases for 

non-indigent defendants (RQ-0962-GA) 

You ask about the appointment of counsel in criminal cases for non-indigent defendants.! 

You provide the following account of events giving rise to your question? 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us has not been superseded.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 I. In 20 I 0, 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. [d. at 1-2. 

You first ask whether a "County Judge may appoint counsel in criminal cases for nonindigent defendants." [d. at I. Generally, a court does not have a duty to appoint counsel absent a 

showing ofindigency. 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 lhenever 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 

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/opinlindex_rq.shtml ("Request Letter"). 

'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 offacts 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 ofthe 82nd 

Legislature, effective September 1, 2011. See Act of May 23, 2011, 82d Leg., R.S., ch. 671, § 1,2011 Tex. Sess. Law 

Servo 1622, 1622-24 (West) and Act of May 26, 2011, 82d Leg., R.S., ch. 984, § 7, 2011 Tex. Sess. Law Servo 2460, 

(continued ... ) 
The Honorable Jack A. McGaughey - Page 2 (GA-0884) 

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.") (quotingBd. 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 "[wJhether 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. CODECRIM. 

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 "[iJf 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 Jeimburse 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, § ll(a)(ll). 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. 

'( ... continued) 

2468-69 (West) (acts to be codified at TEx. CODECRIM. 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). 

'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 oflimited 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). 
The Honorable Jack A. McGaughey - Page 3 (GA-0884) 

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). 

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. [d. art. 26.04(g). 
The Honorable Jack A. McGaughey - Page 4 (GA-0884) 

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 ofthe 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). 

DANIEL T. HODGE 

First Assistant Attorney General 

DAVID J. SCHENCK 

Deputy Attorney General for Legal Counsel 

JASON BOATRIGHT 

Chair, Opinion Committee 

William A. Hill 

Very truly yours, 

Assistant Attorney General, Opinion Committee