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 ofevents givingrise to your question? In 2009, the county and districtjudges servingArcher County, Texas, issued a standing orderestablishing a fee schedulefor attorneys appointed to represent indigent criminal defendants in Archer County, which you inform us has notbeen superseded. RequestLetterat I. In20I0, thecommissionerscourtofArcherCounty entered into a contract with two attorneys retained to represent indigent defendants in cases in the county, withthe basic rate being $150 for each guiltypleain a single misdemeanorcase. [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 "[wlhenever 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 statuteuses the disjunctive "or," it allows for thepossibility

1 See Letter from Honorable Jack A. McGaughey, 97th District Attorney, to Office ofthe 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 GaryW. Beesinger, Archer County Court Judge, to Office ofthe Attorney General at 1-2 (Apr. 15,2011). As this office does notattempt to resolve fact questions, we consideryour statement offacts solely as premises for yourquestions. See Tex. Att'y Gen. Op. No. GA-0738 (2009) at 2 n.3.

3Article 26.04 and otherprovisions oftheFairDefenseActwere amended during the regular session ofthe 82nd Legislature, effective September 1, 2011. See Act ofMay 23, 2011, 82d Leg., R.S., ch. 671, § 1,2011 Tex. Sess. Law Servo 1622, 1622-24 (West) and Act ofMay 26, 2011, 82d Leg., R.S., ch. 984, § 7, 2011 Tex. Sess. Law Servo 2460, (continued

...)

### The Honorable Jack A. McGaughey

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that counsel may be appointed to a non-indigent person in the interests ofjustice. 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 oflanguage for purposes entirely variant, the former being strictly of a conjunctive, the latter, of a disjunctive, nature.") (quotingBd. of Ins. Comm'rs 

### v. Guardian LifeIns. Co. of Tex., 

### 180 S.W.2d 906, 908 (Tex. 1944)); see also Westergren 

### v. Banales, 

### 773 S.W.2d764, 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 ofjustice so require. 4 

### You next ask "[wJhetherthe County Judge may require the payment ofattorney'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." RequestLetterat 1. Article 26.05 ofthe Code ofCriminal Procedurerequires a county's county court, statutory county court, and district courtjudges trying criminal cases to adopt a fee scheduleestablishingtherateofcompensationofappointedcounselin thecounty. TEX. CODECRIM. PROC. ANN. art. 26.05(b)-(c) (West Supp. 2010). All payments for the compensation ofappointed counsel are to bepaid according to the schedule offees 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 ofthe charges or, ifconvicted, 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 communitysupervisionmayrequire adefendantto "[ rJeimburse the countyin whichtheprosecution 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 ofcommunity 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). Pertinenthere, 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. ActofMay 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 ofanyjudicial guidance for the appointment ofcounsel 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 ofcounsel for defendantcompetentto stand trial butincompetent to conduct defense); Exparte Gonzales, 945 S.W.2d 830, 832 n.1 (Tex. Crim. App. 1997) (noting that the trial court judgmentrecited that the defendantwas 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 ofjustice" rather than because ofindigency).The Honorable Jack A. McGaughey

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You ask specifically, however, about a court's authority to order the defendant to pay attorney's fees in an amount greaterthan 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 ofattorneys by a commissioners court's contract with individual attorneys. No provision authorizes a county commissioners court to unilaterally establish the compensationofappointed attorneys at an amountdifferent from thefee scheduleestablishedbythe county'sjudges under article 26.05. 5 Consequently, we conclude that a countyjudge may require thedefendant, in an orderofcommunitysupervision, to pay attorney'sfees accordingto thecounty'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 properdisposition offunds receivedbythe countyunder an order ofcommunity supervision that are in excess ofthe amount offunds 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).

5Article 26.04 ofthe Code ofCriminal Procedure authorizes the establishment ofan 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 ofthe county'sjudges. [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 ofjustice 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 paidunder an order ofsupervision shouldbedeposited as courtcostsunder article26.05(g),regardless oftheamounts 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