                                  The Attorney          General of Texas
 JIM   MATTOX                                        June 7, 1984
 Attorney    General



 Supreme Court Building         Honorable Luther Jones                      Opinion No. ~~-161
 P. 0. Box 12548
 Austin, TX. 78711. 2549        El Paso County Attorney
 512/475-2501                   Room 201. City-County Building              Re: Whether district judges
 Telex 9101874.1367             El Paso, Texas   79901                      may institute a program to
 Telecooier 5121475-0266                                                    represent indigents in civil
                                                                            cases
 714 Jackson, Suite 700
 Dallas, TX. 75202.4506         Dear Mr.   Jones:
 2141742.8944
                                     You state that the ten district judges of El Paso County have
 4824 Alberta Ave., Suite 160
                                signed a joint order implementing a pro bono publico plan in El Paso
 El Paso. TX. 79905.2793        County. The ,order provides that each attorney practicing or employed
 915/533-3484                   in El Paso County shall be appointed to handle no more than two
                                domestic matters for indigents each year. The bar association for the
                                county will screen applicants to determine indigency and will notify
,F’=‘Ol Texas, Suite 700        attorneys of their appointments. You suggest that an attorney
     uston, TX. 77002-3111
  7131223-5886
                                appointed under this program would sustain violations of his
                                constitutional rights to be free from involuntary servitude and from
                                the taking of property without due process of law. U.S. Coast. Amend.
 806 Broadway, Suite 312        I, v, XIV.
 Lubbock. TX. 79401.3479
 8061747-5238
                                     The order reads as follows:

 4309 N. Tenth. Suite B                                   IN THE DISTRICT COURTS
 McAllen, TX. 78501-1685
 5121682.4547
                                                         OF EL PASO COUNTY, TEXAS

 200 Main Plaza, Suite 400
 San Antonio, TX. 78205.2797                IN RE:
 51212254191
                                           EL PASO BAR ASSOCIATION
 An Equal Opportunity/
 Affirmative Action Employer               PRO BONO PUBLIC0 PROGRAM

                                                                    ORDER

                                              ON THIS DAY the Courts did consider the motion
                                           of the EL PASO BAR ASSOCIATION to implement a pro
                                           bono public0 plan in El Paso County, Texas. The
                                           motion of the EL PASO BAR ASSOCIATION is granted.




                                                           p. 707
Honorable Luther Jones - Page 2    (JM-161)




             The undersigned District Courts of      El Paso
          County, Texas, ORDER the following:

             1.   Pursuant to Art. 1917 of the Texas Revised
                  Civil Statutes, the undersigned courts do
                  authorize the appointment of all lawyers
                  holding an active Texas law license and who
                  practice or are employed in El Paso County,
                  Texas.

             2.   Such lawyers shall be appointed under this
                  program to no more than two domestic
                  matters  each fiscal year (October 1 to
                  September 30).

             3.   The EL PASO BAR ASSOCIATION or its delegate
                  shall screen applicants to the program to
                  determine indigency.

             4.   Indigency for purposes of' this program
                  shall be that defined by Legal Services
                  Corporation guidelines and regulations.

             5.   The EL PASO BAR ASSOCIATION or its delegate
                  shall   notify    an   attorney    of   the
                  appointment.

             6.   A pauper's affidavit shall be executed by
                  the client prior to the making of an
                  appointment.

             7.   Uncooperative clients shall be dismissed
                  from the pro bono public0 program.

             8.   An attorney may be excused from the program
                  for good cause shown to the appropriate
                  committee of the EL PASO BAR ASSOCIATION.

             9.   Participating attorneys will be provided
                  with professional liability coverage.

             [No item 10 appears on copy of order submitted
             to US.1

             11. The Courts are encouraged to accept
                 simplified pleadings in pro bono cases.

             SIGNED AND    ORDERED this      24      day   of
          September, 1982. (Emphasis added).




                                  p. 708
      Honorable Luther Jones - Page 3   (~~-161)




           While we agree with the laudable goal of providing a system of
      representatives for indigents, we cannot agree that the method
      selected is authorized by the statutes of the state of Texas.

           We need not address your constitutional concerns because article
      1917, V.T.C.S., the authority cited in the order, does not empower the
      ten judges to act together in implementing the described program. Cf.
      V.T.C.S. art. 1958 (county judge may appoint counsel for indigentr
      Article 1917, V.T.C.S., provides as follows:

                   Judges of district court8 may appoint counsel
                to attend to the cause of any party who makes
                affidavit that he is too poor to employ counsel to
                attend to the same.

      The statute authorizes a district court judge to appoint counsel in a
      particular cause when tha party makes the required showing. The
      predecessor of article 1917 is found in the 1846 statute organizing
      the district courts and defining their powers and jurisdiction:

                Be it further enacted, [t]hat the judges, in any
                case, civil or criminal, in which a party may
                swear that he is too poor to employ counsel, shall
.-              appoint counsel for such party, who shall attend
                to the cause in behalf of such party without any
                fee or reward.

      Law of May 11, 1846, 111, 2 H. Gammel, Laws of Texas 1509 (1898). See
      also Code Grim. Proc. art. 26.04 (appointment of counsel in crimiz
      cases). Read in this context, article 1917 and its predecessor
      unmistakably refer to a single judge acting in a cause before his
      court.

           Article 1917 does not authorize district judges to act jointly to
      establish a program for matching indigents with counsel in civil
      eases. Cf. V.T.C.S. art. 200a. 04 (judges in Administrative Judicial
      District~pressly authorized to act jointly to facilitate disposition
      of cases). Thus, this statute does not authorize issuance of the
      order. A court may not hold an attorney in contempt for refusing to
      comply with an ambigious or invalid order. Bx parte Duncan, 62 S.W.
      758 (Tex. Grim. App. 1901).

           The order also attempts to delegate significant responsibility
      for carrying out the pro bono public0 plan to the El Paso Bar
      Association and other entities. It gives the El Paso Bar or its
      delegate authority to screen applicants for indigency. Indigency is
      to be determined according to the definition promulgated by the Legal
      Services Corporation. Thus, the order delegates the power to develop
 /-   standards for indigency to a federal entity. Although the order




                                    p. 709
Honorable Luther Jones - Page 4    (JM-161)




authorlees appointment of all licensed attorneys in the county without
stating who will appoint attorneys in particular cases, paragraph 5
seems to authorize the El Paso Bar Association or its delegate to
appoint the attorney, while section 8 permits a committee of the bar
association to excuse attorneys from the program.

     It is well established that a public officer cannot dalmgate
judicial as opposed to ministerial powers without expreoo statutory
authorization. Newsom v. Adams, 451 S.W.2d 948 (Tex. Civ. App. -
Beaumont 1970, no writ); Moody v. Taxas Water Conrmission.373 S.W.2d
793 (Tex. Civ. App. - Austin 1963, writ rcf'd n.r.s.). See Attorney
General Opinions H-644 (1975); H-386 (1974); WJ-66 (19%;      V-350,
V-265 (1947).

      Article 1917, V.T.C.S., is discretionary with the judge. Garcia
v. I(lay, 556 S.W.2d 870 (Tex. Civ. App. - Corpus Chrlsti 1977,
dism d); Sandoval v. Rattikin, 395 S.W.2d 889 (Tex. Civ. App. - Corpus
Christi 1965, writ ref'd n.r.e.). cert. denied, 385 U.S. 901 (1966).
A district judge's power to appoint necessary subordinate officers and
assistants is a judicial power. Eucaline Medicine Co. v. Standard
Inv. co., 25 S.W.2d 259 (Tex. Civ. App. - Dallas 1930, writ ref'd).
See also Boynton v. Brown, 164 S.W. 893 (Tex. Civ. App. -,8m Antonio
1914, writ ref'd) (distinguishing "judicial" and %lnisterial" acts in
context of mandamus action).

     A presiding judge's decision to asatgn a judga to try cesee in a
particular county and his choice of a particular judge are both
discretionary acts. Morton's Estate v, Chapnun. 75 S.W.ld   876 (Tex.
1934) (mandamus suit). See also White v. Reitar. 640 S.W.2d 586 (Tex.
Grim. App. 1982) (district judge ordered to dismiss court appointed
attorney under exception to general mandamus rule).

     A judge's power under article 1917 to decide whether'an indigent
should have a court appointed attorney and to appoint a particular
attorney are discretionary powers which cannot be delegated to other
persons.   A district judge may not delegate the powers which
paragraphs 1, 3, 4, 5 and 8 attempt to delegata. Cf. White v. Reiter.
supra; Rx parte Mays, 212 S.W.2d lb4 (Tax. Grim. K     194g) (district
judge must consider attorney's claim that       conflict of interest
prevents his appointment in particular criminel case).

     The quoted order is invalid in its entirety. Article 1917.
V.T.C.S., authorizes a judge to appoint counsel for an indigent in a
particular case but does not authoriae joint action   by a group of
district judges to establish a progrem providing generally for
representation of indigents. Moreover, specific prwiaionr of the
order attempt to delegate nondelegable dircretlonary powers of the
district judges, such as the power to appoint an attorney in a
particular case, excuse attorneys from an appointment, determine




                                  p. 710
      Honorable Luther Jones - Page 5 (JM-161)




      standards for indigency, and apply those standards to particular
      applicants for legal services.

                                  SUMMARY

                   Article 1917, V.T.C.S., does not authorize the
                district judges of El Paso County to establish a
                program for providing representation of indigents
                of the county in civil actions. The district
                judges may not delegate to another person or
                entity the discretionary powers to appoint an
                attorney in a particular case, excuse attorneys,
                determine standards for indigency or determine
                iudigency of a particular applicant for counsel.




                                                  JIM     MATTOX
                                                  Attorney General of Texas

      TOM GREEN
      First Assistant Attorney General

      DAVID R. RICBARDS
      Executive Assistant Attorney General

      Prepared by Susan L. Garrison
      Assistant Attorney General

      APPROVED:
      OPINION COMMITTEE

      Rick Gilpin, Chairman
      David Brooks
      Colin Carl
      Susan Garrison
      Jim Moellinger
      Nancy Sutton




P.,




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