                                The Attorney          General of Texas
                                                  Demcember22,,1985
JIM MATTOX
Attorney General



Supreme Court Building         Honorable Henry Wade                    Opinion No. JM-403
P. 0. Box 12548                Dallas County District Attorney
Austin, TX. 78711-2548         Condemnation Section                   Re:   Payment of attorney fees
5121475.2501
                               Services Building                      for indigents in contempt pro-
Telex 910/874.1367
Telecopier   5121475.0286
                               Dallas, Texas   75202                  ceedings arising  out of non-
                                                                      payment of child support

714 Jackson. Suite 700         Dear Mr.   Wade:
Dallas, TX. 75202.4506
214(74z.a944
                                    You question the continuing validity of Attorney General Opinion
                               MW-242 (1980) in light of the Fifth Circuit's recent decision in
4824 Alberta Ave., Suite 180   Ridgway v. Baker, 720 F.2d 1409 (5th Cir. 1983). In Attorney General
El Paso, TX. 79905-2793        Opinion MW-242 th::soffice was called upon to construe article 26.05
9154533-3484                   of the Code of Cr~tuinalProcedure in which provision is made for the
                               compensation of attorneys who are appointed to represent indigents in
1001 Texas, Suite 700          certain criminal proceedings.      Attorney General Opinion MW-242
Houston. TX. 77002-3111        indicated that article 26.05 does not authorize the payment of fees to
7131223-5886                   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
SC8 Broadway. Suite 312
Lubbock, TX. 79401.3479
                               case law. which r,equires the appointment of an attorney in certain
8061747.5238                   civil contempt Ilroceedings, require reconsideration of Attorney
                               General Opinion MW-242. We disagree.
4309 N. Tenth, Suite S
McAllen, TX. 78501~1S85
                                    It is now we:.1 established that in all felonies and at least in
5121682-4547
                               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
200 Main Plaza. Suite 400      C-654 (1966). This right to have the state provide counsel extends to
San Antonio, TX. 782052797
512/225-4191
                               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."
An Equal Opportunity/          U.S. 18, 25 (1981); In
Affirmative Action Employer    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 clsrtainaspects 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::iminalcases. 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
                                                 ~~ - Austin 1977, G
              559 S.W.2d 69;3,701. (Tsx. C!Lv. App.
P-6,            ,,
               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,ourtdetermines 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: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. 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, 604 S.W.2d 430 (Tex. Civ. App. - Waco
1980, PO writ) .* In contl%~t, 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 :!6.05provides 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 look at the! history of amendments to article 26.04
reveals the 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 pre-
decessor 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)




                              at 1061. In 1965, the legislature added
1959, 56th Leg., ch. 484, !;I.,
"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::tshave 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:::Lminalcase 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 iippointedto 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
