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

Demcember22,,1985

HonorableHenry Wade Dallas County DistrictAttorney CondemnationSection ServicesBuilding Dallas, Texas 75202 OpinionNo. JM-403

Re: Payment of attorney fees for indigents in contemptproceedings arising out of nonpayment of child support

Dear Mr. Wade:

You question the continuingvalidity of Attorney General Opinion MW-242 (1980) in light of the Fifth Circuit's recent decision in Ridgwayv. Baker, 720 F.2d 1409 (5thCir. 1983). In Attorney General Opinion MW-242 th::soffice was called upon to construe article 26.05 of the Code of Cr~tuinal Procedure in which provision is made for the compensationof attorneyswho are appointed to represent indigents in certain criminal proceedings. Attorney General Opinion MW-242 indicated that article 26.05does not authorize thepayment of fees to court-appointed attorneys when their indigent clients have not been accused of a criainaloffense orwhere writs of habeas corpushave not been filed. ---

You suggest that recent developments in constitutional case law. which r,equiresthe appointment of an attorney in certain civil contempt Ilroceedings, require reconsideration of Attorney GeneralOpinionMW-242. We disagree.

It is now we:.1established that in all felonies and at least in all misdemeanors which are punishable by confinement in jail, an accused has the r,ightto the effective assistance of counsel. See Gideon v. WainwrQll, 372 U.S. 335 (1963);Attorney General Opinion C-654 (1966). This right tohave the stateprovide 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 (5thCit. 1983); see also Attorney General Opinion JM-176 (198'4).The Fifth Circuit inRidgway applied this rule to an accused father who was denied counsel and condemned to imprisonment for civil contempt in a nonsupport proceeding despite an uncontrovertedassertionof 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:Ledas civil or criminal, contempt proceedings invariablyinvoke clsrtain aspectsof the criminalprocess." The Texas

p. 1844Honorable HenryWade - 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.%rteDavis, 344 S.W.2d 153 (Tex. 1961)). Consequently, proceedings in contempt cases should conform as nearly
as possible to those,in c::iminalcases. Ex parte Bvram, 662 S.W.2d 147 (Tex.App. - Fort Wort,b, 1983,no writ); Deramusv. 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 determinesat 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 practicingattorneys to defendhim. Inmaking the determination,the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence. (Emphasisadded).
Article 26.05 of the Code of CriminalProcedureprovides 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.

. . . (Emphasisadded).

See also art. 26.055.

In Attorney GeneralOpinionMS?-242,this officedecided thatwhen
an indigent person has not been accused of a felony or misdemeanor punishableby imprisonment or that when no writ of habeas corpus has been filed, article 26.05 ~)fthe Code of Criminal Procedure does not apply. Accordingly, the op:Lnionconcluded 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. 1845HonorableHenryWade - Page 3 (JM-403)

only to appointmentsmade: pursuant to article 26.04(a), in criminal
cases. See alsoAttorney >sneralOpinionM-48 (1967).

The authority for appointment of counsel for indigentpersons 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 ismandatory.

The statedpurpose of article 26.05 of the code is to provide for the payment of court-appointed attorneys representing indigents chargedwith "crimes," includingmisdemeanorswhich 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 punishableby imprisonment." Thus, on its face, article :!6.05 provides only for the compensationof attorneys appointed pursuant to article 26.04 or to represent indigents inhabeas corpusproceedings.

The primary rule govoming the interpretation of the provisions of statutes is to give e:ifectto 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 subjectmatter involved, the problem to be remedied, and the ultimatepurposes tobe 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:ourtdecisions 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.04applied only to felonies. SeeActs -

1. It should be not&: that, in light of Ridgway v. Baker, 720 F.2d 1409 (5thCir. 1983), if thisprovisionwere used to tax attorney feesas costs in suits inwhich an indigentparent 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. 1846Honorable Henry Wade - Pago 4 (JM-403)

1959, 56thLeg., ch. 484, !;I., at 1061. In 1965, the legislatureadded "ormisdemeanorpunishableby imprisonment,"seeActs 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 inmisdemeanor
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 constitutionallaw required the appointmentof 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 theproceeding is likea c:::Lminal case and towhether a potential loss of liberty is involved if zhe defendant loses the case. Nevertheless, the present language of :nrticle26.05 does not provide for the compensationof attorneys iippointed to represent indigents in cases of
a "quasi-criminalnature"where the law, includingconstitutionallaw, 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 particularmatter implies the exclusion of all others. Consequently, if the legislaturehad intended to include provision for the compenartion of attorneys in instances other than those enumerated in articlr 26.05, itwould have done so.

You ask only about car decision in Attorney General Opinion MW-242. That opinion wallbased 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 representan indigent. See generallyAnnot., 21A.L.R.3d 819 (1968) (right of tour:-appointed attorney to public compensation in absence of statute or court rule). Attorney GeneralOpinionMW-242 (1980)is expresslyaffinmrd.

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 CriminalProcedure.
Very trulyyours

l-l h.z&

A JIM MATTOX Attorney General of Texas

p. 1847HonorableHenryWade - Page:5 (JM-403)

JACRHIGHTOWER FirstAssistantAttorneyGmeral

MARY KKLLER ExecutiveAssistantAttormy General

ROBERT GRAY SpecialAssistantAttorneyGeneral

RICK GILPIN Chairman,OpinionComittel!
Preparedby JenniferRiggs AssistantAttorney General