                            Office     of tip     Rlttornep       Qheral
                                          %tate of PT;exaS
DAN MORALES
 Al-r”RNEY
        GENERAL                              June 22, 1995

     Honorable John Vance                             OpinionNo. DM-354
     Dallas County District Attorney
     Frank Crowley Courts Buildiig, LB 19             Be: Whether a trial court may appoint an
     Dallas, Texas 75207-4313                         attorney to represent an .indigent capital
                                                      murder defendant in a postconviction
                                                      habeas corpus proceeding, and related
                                                      questions (BQ-658)

     Dear Mr. Vance:

             You ask us sexed questions regarding court appointment of counsel to represent
     indigent capital defendants in postconviction state habeas corpus proceedings. Code of
     Criminal Procedure article 11.07 regulates the procedure for a writ of habeas corpus
     challenging continement under a final judgment of conviction in a felony case. You
     represent that “[a] number of Dallas County trial court judges are under the impression
     that they do not have the authority to appoint or compensate an attorney to represent an,
     individualconvicted of capital murder”in a proceed@ under article 11.07.

             Fist, you ask whether a trial court judge has the power to make such
     appointments. We believe that article 1.OS1 of the Code of Criminal Procedure expressly
     establishes that power.* Subsection (d)(3) of article 1.051, in pat-tic&r, expressly grants



            ‘Article 1.051 pmvideaia perthlentpsrt:

                    (a) AdehdantinaaiminalmatterisaUitkdtobercpdby-1
               iaanadwxaialjudieialprocahg.       Therighttokrepmseatedbyaamacl
               includestherighttoconsultinpriratewith~~~~inadvance~a
               procedingto allowadequateprcpstationforthepnxxdta8.
                    (b) For the purposesof this article and Articles 26.04 and 26.05 of this
               code, “iadigant”meansa personwho is sot financiallyable to empky anmsel.
                    (c) An iadigat defendant is entitled to have an attomcy appointed to
               rrprrsenthiminanyadversaryjudicialpmccedingthatmayrrmltinplnishmcnt
               by confnement.... If all indigantddcndsnt is altitkd to atal remeat
               appuintedcotmel,theonutshallapp0~t~t0rrpltsnttbcdefcndant
               so00as posiile.
Honorable John Vance - Page 2               (DM-354)




an wtitlement to appointment of counsel to’ an indigent criminal defendant in a
postconviction “habeas corpus proceeding if the court concludes that the interests of
justice require representation.” The statutory tight to wunsel includes the right to the
assistance of wunsel in making “adequate preparation for the proceeding.” Code Crim.
Proc. art. 1.051(a); cf. McFurhd v. Scott, 114 S. Ct. 2568, 2572 (1994) (federal statute
granting right to appointed wunsel to capital defendants in federal haheas corpus
proceed@ “includes a right to legal assistance in the preparation of a habeas corpus
applitiOtt~).

        Second, you ask whether the Commissioners Court of Dallas County must pay
wmpensation to wunsel so appointed !?ua Dallas County trial court, in acwrdance with
the wutt’s order setting attorney fse. -~TexasCourtofCriminalAppeaisheldin
Smith v. Fhck, 728 S.W.2d 784 (1987. ~.~L   a fortner version of arxle 26.05 of the Code
of Criminal Procedure “places a mandaxry duty upon the county to pay court-appointed
attorney fees,” id. at 78940, and that other law requires the wnnnissioners wurt “to
perCormthe ministerial act of reviewing”attorney fw awards ordered under article 26.05,
id. at 792; see Local Gov’t Code 8 115.021 (“The wnnnissioners court of a county shag
audit and settle all accounts against the wunty and shag direct the payment of those
acwunts”). Although article 26.05 has been rewritten since Smith, compare Act of
May 30, 1987, 70th Leg., RS., ch. 979, 4 3, 1987 Tex. Gen. Laws 3321, 3323-24
(atmnt version) with Act of May 31, 1981, 67th Leg., RS., ch. 291, 8 106, 1981 Tex.
Oen. Laws 761,803 (former version), the current version has heen interpreted in the same
mamtr as the former, see Weslergren v. .Burnsles,773 S.W.2d 764, 765 (Tex.
z~yr            Christi 1989, no writ) (dtq to pay fees of appointed counsel is




                ....
               (3)etudxaswlpusproc&dingifthewuttwacludesthatthc~of
           jwiwrcquircreprcwatauoa....
code Grim.Pm. art. 1.051(a)- (c), (d)(3).
        %a curmu vemioo of aniclc 26.05 prods    in putinmt patt as follows:




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Honorable John Vance. - Page 3          (DM-354)




        The.current version places a ministerialduty on the trial wurt judge to award fees
(the amount awarded being discretionary) upon appointed wunsel’s submission of a fee
request in proper form. Id. Furthermore, we believe that this statute and Local
Government Code section 115.021 place a ministerialduty on the CommissionersCourt of
Dallas County to “direct the payment,”Local Gov’t Code 8 115.021, of an award of fees
that “is in accordance with the fee schedule for that wunty,” Code Crim. Proc. art.
26.05(c). Cj. Smith, 728 S.W.Zdat 792. Speaking of the former version of article 26.05,
the court in Grq County v. Wmer & Fhey, 727 S.W.Zd 633 (Tar. App.-Amarillo
 1987, no writ), held that “an order entered by the wurt under the authority of article
26.05 is presumed to be reasonable. . and must be allowed unless the Commissioners
Court can show that the order is so unreasonable as to amount to an abuse of discretion.”
Id. at 636; see Attorney General opinion H-499 (1975). We believe that the same rule
applies to the current version of article 26.05.

         Third, you ash whether a trial court judge has the power to appoint a nonindividual
entity, including “an agency, legal aid.society, such as the Texas Resource Center, or law




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Honorable John Vance - Page 4                 (DM-354)




tirrn,” to be responsible for assigning an indivi&al staff attorney to represent a capital
defendant in a postwnviction habeas corpus proceedii under article 11.07. Article
26.04(a) of the Code of Crhninal Procedure provides that “the court shall appoint one or
more practicing attorneys to defend” an indigent defendant charged with a crime
punishableby imprisonment.3 Only licensed individualsmay be appointed as wunsel. See
Expurte &gZe, 418 S.W.Zd 671,673 (Tex. Grim. App. 1967). Obviously, an agency or
assockion cannot be licensed to practice law, for such an entity cannot satisfy all the
eligibiity requirements, see Gov’t Code ch. 82, subch. B (regulating licensing of attorneys
at law), including an assessment of an applicant’s mod character and fitness, see id.
5 82.030. Therefore, there is no appointment of “one or mom practicing attorneys” when
a trial court directs a govemmental agency or legal aid society or private law partnership
to provide represenmtion by one or more attorneys.4

       Nevertheless, we are aware of no legal impedimentto a trial wurt’s request that an
agency or association-including an entity located outside the county of the appointing
court-procure a qualiied attorney who is willing to pmvide wunsel to an indigent
defendant who has a right to counsel under article 1.05I. Still, when a trial wurt relies on
an agency or association to assign one or more lawyers to appear as wunsel for the
defendant, the wurt has the duty to “‘see that wunsel is assigned having suflcient ubiZi@
and experience fairly to represent the akfenabnt, to present his defense, and to protect his
rightS.*” Rohiguez v. Sbte, 340 S.W.2d 61,63 (Tex. Grim. App. 1960) (quoting with
added emphasis 14 AM. JUR. Criminal Law, 8 174, at 888 (1938)). This duty alone is
suf6cient reason for the trial wurt to review the qualificationsof the lawyers proffered by

       ‘hticle   26.04(s)pnwtdesas follows:




CodeGrim.Pm. an. 26.04(a). For puposes oftbis pmvistca,a?xtmM pmwding”taclwksa habeas
wrpns procdhg.   Se td, atl. 26.05(a) @widing for awad (B attomcy fees an6 expogs to
“couascl...appointedtorcprrscatadefudantaapproacdin&iadudingahabgscorpls
hering”).
         ‘Furthcnoore,inttu~ofanappoinrmentpurrnranttouticlc26.04,ananonryproviding
~ntoanindi~tdcf~tirnotentitltdto~uodersnide26.05;f~thatartidc
applies only to “[a] counsel . appointal to representa dcfadant in a criminalpm”     Cuk Grim
hoc. mt 26.05(a). See GrayY.Robinson, 744 S.W.Zd 604,607 Vex. Grim. App. 1988) @tWXW~CS
caawt l’c awardedpursuantto artick 26.05 for sclviccs lendud priorto dstccf appointmcat).




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Honorable John Vance - Page 5            (DM-354)




the agency or association, to the extent necessary for the court to determine that the
lawyers have the requisite abiity and experience, and to appoint the lawyers by formal
desigmtion pursuant to article 26.04.

        Other considerations also militate in favor of fortnal appointment of lawyers
provided by agencies and asskations to represent indigent crimiml defendants. It is
hnportant that an agency or public-interest law firm limit its role to that of a conduit or
intermedkq that does not wntrol or exploit the manner in which a lawyer employed by
the. agency or .public-interest tirtn provides representation to an indigent client. See
Touchy v. Houston Legal Found., 432 S.W.Zd690,695 (Tex. 1968); Scruggs v. Houston
Legal Found., 475 S.W.2d 604, 606-07 (Tex. Civ. App.-Houston [lst D&t.] 1972, writ
mfd); see also State Bar Rules, art. X, 5 9 (Gov’t Code) (1992) R 504(c) (“A lawyer
shall not permit a person who recommends, employs, or pays the lawyer to render legal
services for another to direct or regulate the lawyer’s pmkssional judgment in rendering
such legal services”). Additionally, without a formal designation of the attorney or
attorneys who will be responsible for representation of a defendant, there may be a
fiagmgnation of responsibilii and authority that would be detrimental to the dekdant’s
interests. See Monta?m v. Allies, 597 P.2d 64, 66 (Mont. 1979). To avoid wnfusion of
responsibiity, there should be a clear designationof the licensed attorney or attorneys who
will be ethically obligated to pmtect the defendant’s interests, see NC-W-HI    &dim      v.
Ci?rrer, 311 S.E.2d 5, 6 (N.C. Ct. App. 1984), and who will be subject to direct and
~tiwntrol          and discipline by the court in regard to their representation of the


                                   SUMMARY

               Article 1.051(d)(3) of the Code of Criminal Procedure (the
          “code”) expressly authorizes a trial court to appoint counsel to
          represent an indigent capital defendant in a postwnviction habeas
          wrpus proceeding under code article 11.07 “if the court concludes
          that the interests of justice require representation.” The. statutory
          right to wunsel under article 1.051 includes the right to the
          assistance of wunsel in making “adequate preparation for the
          proceeding.” Code Grim. Proc. art. 1.05l(a).

               A trial wurt has a ministeriaJduty to award attorney fees (the
           amount awarded being discretionary), upon submission of a fw
           request in proper form, to counsel appointed pursuant to code article
           26.05. The CommissionersCourt of Dallas County has a ministerial
           duty to direct payment of such an award of attorney fees ordered by
           a Dallas County trial court if the award comports with the fee




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Honorable John Vance - Page 6         (DM-354)




         schedule for Dallas County, unless the c&missioners court can show
         that the wutt’s award is so unreasonableas to amount to ti abuse of
         discretion.

             A trial court may appoint only licensed attomw pursuant to
         code article 26.04 and therefore may not appoint an agency or
         asso&ion to provide counsel to a defendant. There is no legal
         impediment, however, to a trial court’s request that an agency or
         asso&tion-including an entity located outside the county of the
         appointing wurt-proatre a qualibi attorney who is willing to
         provide counsel to an indigent defendant who has a right to counsel
         underarticle1.051. Still,whenatrialcourtreliesonanagencyor
         association to recommend lawers to appear as wunsel for criminal
         defendants, the trial court sb:::d review the qualifications of the
         lawyers proffered by the a.: :.xy or association to the extent
         ne4xssary for the court to xtemk          that the lawyers have the
         requisite ability and expaiprcc, and should appoint the lawyers by
         formal designation pursuant to article 26.04.




                                                  DAN MORALES
                                                  Attorney Oesmal of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, @ion Committee

Prepared by James B. Pin
Assistant Attorney General




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