Untitled Texas Attorney General Opinion

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