JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12548 

Austin, TX. 78711-2548 

5121475.2501 

Telex 910/874.1367 

Telecopier 5121475.0286 

714 Jackson. Suite 700 

Dallas, TX. 75202.4506 

214(74z.a944 

4824 Alberta Ave., Suite 180 

El Paso, TX. 79905-2793 

9154533-3484 

1001 Texas, Suite 700 

Houston. TX. 77002-3111 

7131223-5886 

SC8 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

8061747.5238 

4309 N. Tenth, Suite S 

McAllen, TX. 78501~1S85 

5121682-4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 782052797 

512/225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

The Attorney General of Texas 

Demcember 22,, 1985 

Honorable Henry Wade 

Dallas County District Attorney 

Condemnation Section 

Services Building 

Dallas, Texas 75202 

Opinion No. JM-403 

Re: Payment of attorney fees 

for indigents in contempt proceedings arising out of nonpayment of child support 

Dear Mr. Wade: 

You question the continuing validity of Attorney General Opinion 

MW-242 (1980) in light of the Fifth Circuit's recent decision in 

Ridgway v. Baker, 720 F.2d 1409 (5th Cir. 1983). In Attorney General 

Opinion MW-242 th::s office was called upon to construe article 26.05 

of the Code of Cr~tuinal Procedure in which provision is made for the 

compensation of attorneys who are appointed to represent indigents in 

certain criminal proceedings. Attorney General Opinion MW-242 

indicated that article 26.05 does not authorize the payment of fees to 

court-appointed attorneys when their indigent clients have not been 

accused of a criainal offense or where writs of habeas corpus have not 

been filed. 

--- 

You suggest that recent developments in constitutional 

case law. which r,equires the appointment of an attorney in certain 

civil contempt Ilroceedings, require reconsideration of Attorney 

General Opinion MW-242. We disagree. 

It is now we:.1 established that in all felonies and at least in 

all misdemeanors which are punishable by confinement in jail, an 

accused has the r,ight to the effective assistance of counsel. See 

Gideon v. WainwrQll, 372 U.S. 335 (1963); Attorney General Opinion 

C-654 (1966). This right to have the state provide counsel extends to 

every case in whtch the litigant way be deprived of his personal 

liberty if he 10s~; the right does not depend merely upon labels of 

"civil" or ucriwinal." 

U.S. 18, 25 (1981); In 

Baker, 720 F.2d 1409, 1413 (5th Cit. 1983); see also Attorney General 

Opinion JM-176 (198'4). The Fifth Circuit in Ridgway applied this rule 

to an accused father who was denied counsel and condemned to 

imprisonment for civil contempt in a nonsupport proceeding despite an 

uncontroverted assertion of indigency. See 720 F.2d at 1413. - 

We considered the nature of "civil" contempt proceedings at 

length in Attorney General Opinion JM-176 and concluded that 

"[wlhether classiE:Led as civil or criminal, contempt proceedings 

invariably invoke clsrtain aspects of the criminal process." The Texas 

p. 1844 
Honorable Henry Wade - Page 2 (JM-403) 

Supreme Court has declared that "a contempt proceeding is unlike a 

civil suit, has some of the incidents of a trial for crime, and is 

quasi-criminal in nature." Ex parte Cardwell. 416 S.W.2d 382, 384 

(Tex. 1967) (citing Ex p.%rte Davis, 344 S.W.2d 153 (Tex. 1961)). 

Consequently, proceedings in contempt cases should conform as nearly 

as possible to those, in c::iminal cases. Ex parte Bvram, 662 S.W.2d 

147 (Tex. App. - Fort Wort,b, 1983, no writ); Deramus v. Thornton, 333 

S.W.2d 824, 829, (Tex. 1960); uparte Stanford. . 5, ~57 S.W.2d 346, 348 

(Tex. Cl". App. - Houston [lst DIL-.. et.1 -_. 1977. no writ) ; see also Ex 

559 S.W.2d 69;3, 701. (Tsx. C! 

P-6, ,, 

Lv. App. ~~ - Austin 1977, G 

state law as well as federal law recognizes that the 

civil" or "criminal" should not control due process 

considerations. 

Section (a) of article 26.04 of the Code of Criminal Procedure 

provides: 

Whenever the c,ourt determines at an arraignment 

or at any time prior to arraignment that an 

accused charged +th a felony or a misdemeanor 

punishable by im@sonment is too poor to employ 

counsel, the cowrt shall appoint one or more 

practicing attorneys to defend him. In making the 

determination, the court shall require the accused 

to file an affidavit, and may call witnesses and 

hear any relevant testimony or other evidence. 

(Emphasis added). 

Article 26.05 of the Code of Criminal Procedure provides specific 

authority for payment of counsel appointed to represent indigent 

persons in certain circumstances. Article 26.05, section 1, provides 

that, 

A counsel appointed to defend a person accused 

of a felony 0:: a misdemeanor punishable by 

imprisonment, or-to represent an indigent in a 

habeas corpus ha-*, shall be paid from the 

general fund cf the county in which the 

prosecution was instituted or habeas corpus 

hearing held, according to the following 

schedule. . . . (Emphasis added). 

See also art. 26.055. 

In Attorney General Opinion MS?-242, this office decided that when 

an indigent person has not been accused of a felony or misdemeanor 

punishable by imprisonment or that when no writ of habeas corpus has 

been filed, article 26.05 ~)f the Code of Criminal Procedure does not 

apply. Accordingly, the op:Lnion concluded that an indigent person's 

court-appointed attorney for a civil contempt proceeding may not be 

paid from the general fund of a county under the authority of article 

26.05. The rationale for the opinion was that article 26.05 applies 

p. 1845 
Honorable Henry Wade - Page 3 (JM-403) 

only to appointments made: pursuant to article 26.04(a), in criminal 

cases. See also Attorney >sneral Opinion M-48 (1967). 

The authority for appointment of counsel for indigent persons in 

civil proceedings is found in articles 1917 and 1958, V.T.C.S. 

Ger, no civil statutes provide authority for the payment of 

attorneys appointed pursuant to articles 1917 and 1958. Moreover, 

these statutes are not mandatory. See Sandoval v. Rattikin, 395 

S.W.2d 889, 894 (Tex. Ci'l.. App. - Corpus Christ1 1965, writ ref'd 

n.r.e.), cert. denied, 38!i U.S. 901 (1966); see also Tex. Fam. Code 

511.18 (which allows &c:tionary awards of attorney fees in suits 

affecting the parent-child relationship; such fees may be taxed as 

costs); Drexel ,v. McCutcheon, 

1980, PO writ) .* In contl%~t, 

604 S.W.2d 430 (Tex. Civ. App. - Waco 

article 26.04 of the Code of Criminal 

Procedure is mandatory. 

The stated purpose of article 26.05 of the code is to provide for 

the payment of court-appointed attorneys representing indigents 

charged with "crimes," including misdemeanors which are punishable by 

imprisonment, and representing indigents in habeas corpus hearings. 

In language like that used in article 26.05, article 26.04 expressly 

requires the appointment of counsel to represent indigent accuseds 

"charged with a felony or a misdemeanor punishable by imprisonment." 

Thus, on its face, article :!6.05 provides only for the compensation of 

attorneys appointed pursuant to article 26.04 or to represent 

indigents in habeas corpus proceedings. 

The primary rule govoming the interpretation of the provisions 

of statutes is to give e:ifect to the intention of the legislature. 

City of Sherman v. Publi: Utility Commission, 643 S.W.2d 681, 684 

(Tex. 1983). To determir; the intent and purpose of a particular 

provision, it is proper to consider the history of the subject matter 

involved, the problem to be remedied, and the ultimate purposes to be 

accomplished. Id. 

A brief 

reveals the 

look at the! history of amendments to article 26.04 

legislative intent that article 26.04 was arguably 

designed to comply with I:ourt decisions ruling that the Sixth and 

Fourteenth Amendments to the Constitution require the appointment of 

counsel in certain cases. For example, prior to the Supreme Court's 

decision in Gideon v. Wainwright, supra, decided in 1963, the predecessor act to article 21E.04 applied only to felonies. See Acts - 

1. It should be not&: that, in light of Ridgway v. Baker, 720 

F.2d 1409 (5th Cir. 1983), if this provision were used to tax attorney 

fees as costs in suits in which an indigent parent is constitutionally 

entitled to a court-appointed attorney, it may be unconstitutional, 

even though the provision is discretionary. See Attorney General 

Opinion C-654 (1966). 

- 

p. 1846 
Honorable Henry Wade - Pago 4 (JM-403) 

1959, 56th Leg., ch. 484, !;I., at 1061. In 1965, the legislature added 

"or misdemeanor punishable by imprisonment," see Acts 1965, 59th Leg., 

vol. 2, ch. 722, at 317, 4:!5, in order to com=with the Gideon case. 

See Interpretive Commentary to Code Grim. Proc. art. 26.04. Article 

26.05 has been amended in ways that echo the amendments of article 

26.04, see Acts 1965, 59th Leg., vol. 2. ch. 722, at 317, 425, to 

providefot the payment of counsel in felony cases and in misdemeanor 

cases involving a loss of liberty. Because almost all "crimes" fall 

within the category of either a felony or a misdemeanor, both articles 

26.04 and 26.05 may have been intended to encompass all "crimes" for 

which constitutional law required the appointment of an attorney. 

As indicated, the cou::ts have now broadened the category of cases 

in which counsel must be appointed, dispensing with the traditional 

labels of "civil" or "criminal" and looking to whether the nature of 

the proceeding is like a c:::Lminal case and to whether a potential loss 

of liberty is involved if zhe defendant loses the case. Nevertheless, 

the present language of :nrticle 26.05 does not provide for the 

compensation of attorneys iippointed to represent indigents in cases of 

a "quasi-criminal nature" where the law, including constitutional law, 

requires that the state provide an indigent with the effective 

assistance of counsel. A primary tenet of statutory construction is 

that the enumeration of a particular matter implies the exclusion of 

all others. Consequently, if the legislature had intended to include 

provision for the compenartion of attorneys in instances other than 

those enumerated in articlr 26.05, it would have done so. 

You ask only about car decision in Attorney General Opinion 

MW-242. That opinion wall based on a statutory interpretation of 

article 26.05. You do not ask, nor do we address, whether any 

constitutional provisions require the compensation of an attorney 

appointed to represent an indigent. See generally Annot., 21 A.L.R.3d 

819 (1968) (right of tour:-appointed attorney to public compensation 

in absence of statute or court rule). Attorney General Opinion MW-242 

(1980) is expressly affinmrd. 

SUMMARY 

An attorney who is appointed to represent an 

indigent person Ln contempt proceedings arising 

out of nonpayment of child support may not be 

compensated under article 26.05 of the Code of 

Criminal Procedure. 

Very truly yours 

l-l A h.z& 

JIM MATTOX 

Attorney General of Texas 

p. 1847 
Honorable Henry Wade - Page: 5 (JM-403) 

JACR HIGHTOWER 

First Assistant Attorney Gmeral 

MARY KKLLER 

Executive Assistant Attormy General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Comittel! 

Prepared by Jennifer Riggs 

Assistant Attorney General