The Attorney General of Texas
September 16, 1980
MARK WHITE
Attorney General
Honorable Henry Wade Opinion NO. MW-24 2
District Attorney
Records Build@, Sixth Floor Re: Fee for attorney appointed by
Dallas, Texas 75202 court to represent indigent jaikd for
contempt of court for nonpayment
of child swpcrt
Dear Mr. Wade:
You ask whether, pursuant to article 26.05 of the Code of Criminal
Procedure, Dallas County may pay a court-appointed attorney for repre-
senting an indigent person in a family law court proceeding to secure the
person’s release from confinement for contempt of court for non-payment of
child swport.
Article 26.05 pmvides, in pertinent part:
Section 1. A counsel appointed to dsfend a person
accused of a felony or a misdemeanor punishable by
imprisonment, or to reprasent an indigent in a habeas
corpus hear@ shall be paid from the general fund of
the county in which the prosecution was instituted or
habeas corpus hearing held, accordi- to the
following schedule:. . .
You state that no writ of habeas corpus has been filed. --j!.ss
Cf. Rx
Hiester, 572 S.W. 2d 300 (Tex. 1978); Ex parte Wilson, 559 S.W. 2d 898 Tex.
- Austin 1977 no writ). Thus, we need only consider whether the
~$&e~t~~rson has bee; “accused of a felony cr misdemeanor punishable by
imprisonment.” If not, article 26.05 does not authorize Dallas County to pay
his attorney’s fees. -See Attorney General Opinion C-418 (1965).
Attorney General Opinion M-48 (1967) presented the question of
whether an attorney appointed under article 46.02, section 8 of the Code of
Criminsl Procedure to represent a person committed to a state mental
hospital after beiq acquitted of a criminal offense by reason of insanity was
entitled to compensation for representing the person at a s&sequent sanity
hearing. The opinion pointed out that article 26.05 “is applicable only to
appointments of attorneys in criminal cases made under authority of article
26.04(a)” (Emphasis added). Because article 46.02, section 8 did not
authorize compensation for attorneys appointed to conduct trials for people
p. 764
Honorable Henry Wade - Pme Two (NW-242)
whose sanity was hew determined, the question was answered in the nsgative. See
also
- Code of Criminal Procedure, art. 1.02, (code governs %riminal proceedi@?. -
We are here concerned with an indigent person who was jailed for contempt of
court for failure to pay child swport. The judgment specified that the person was to
remain confined until he purged himself of contempt by making the necessary
payments. After remain* in jail for some time, he made some payments, and
another court order was issued directing that further payments be made.
Under these circumstances, we answer your question in the negative. The
indigent parson has not bean accused of a felony or a misdemeanor punishable by
imprisonment; instead, he was jalled for civil contempt of court. See Ex
s ra; Ex parte Adair, 222 S.W. 2d 324 (Tex. Civ. App. - Dallas ---F=f194 , no wrtt ,
drstntction betwen civil and criminal contempt). See also 12 Tex. Jur. 2d Contempt S
7=
3 (civil contempt proceedings are between the original parties rather than between the
public and the defendant). Since IY) writ of habeas corpus lms been filed and no
criminal offense is involved, section 26.05 does not apply. See Attorney General
Opinion M-48, s ra. Accorditgly, the indigent person’s court-appointed attorney may
not be paid from-%i e general fmd of Dallas County under article 26.05.
SUMMARY
Article 26.05 of the Code of Criminal Procedure does not
authorize payment of a court-appointed attorney’s fees when his
indigent client IXISnot been accused of a criminal offense and
no writ of habeas cornus has been filed.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jon Bible
Walter Davis
Susan Garrison
Rick Gilpin
Bruce Youngblood
p. 765
Untitled Texas Attorney General Opinion
Combined Opinion