                                                                   /A
                                     June 19,    1974                        J!         c-q7


The Honorable   George N.      Rodriguez,       Jr.
County Attorney
201 City-County  Building                               Opinion   No.   H-        329
El Paso,   Texas 79901
                                                        Re:   Whether     county        conxnis-
                                                              sioner may be compensated
                                                              for iapresanting indigent
Dear   Mr.   Rodriguez.:                                      defendant.

    You have requested oui opinion on the question sf whether a county
commissioner   may be compensated   for his services a8 appointed
counsel for an indigent defendant.

   Article    26.06   of the Texas    Code of Criminal        Procedure       provides:

             No court may appoint an elected county, district
         or state official to represent     a pirson accused of
         crime,   unless the official has notified the court of
         his availability   for appointment.     If an official has
         notified the court of his availability     and is appointed
         as counsel,    he may decline the appointment if he
         determines     that it is in the best interest   of his office
         to do so.    Nothing in this Code shall modify any
         statutory provision for legislative      continuance.

    This article and its predecessor,     Art. 494b of the former Code of
Criminal   Procedure,   have been construed to permit a county official to
accept an appointment to represent     an indigent defendant.   Ex parte Reece,
417 S. W. 2d 587 (Tex. Crim.   1967); Williams   v, State, 321 S. W. 2d 72
(Tex. Crim.   1958). cert. den.,359   U.S. 930 (1959); Attorney General
Opinion No. C -247 (1964).

     No Texas court has decided whether a county official appointed to
represent   an indigent defendant may be compensated     for doing SO. In
Williams   v. State, supra, the court specifically declined to reach the
question.      ,,



                                          p.    1527
. The Honorable    George     N.   Rodriguez,    Jr.,    page 2     (H-329)




      The oath of the county judge and the commissioners                is set out in
 Article  2340,  V. T. C.S., as follows:

               Before ente,ring upon the duiies of their office,     the
          county judge and each commissioner         shall take the
          official oath, and shall also take a written oath, that
          he will. not be directly or indirectly   interested  in any
          contract wi,th, or claim against,    the county in which
          he resides,    except such warrants as may issue to him
          as fees of office.    Each commissioner      shall execute
          a bond to be approved by the county judge in the sum
          of three thousand dollars,    payable to the county
          treasurer,    conditioned for the faithful performance
          of the duties of his office,  that he will pay over to
          his county.all moneys illegally paid to him out of
          county funds, as voluntary payments or otherwise,,
          and that he will not vote or give his consent to pay out
          county funds except for lawful purposes.         (Emphasis
          added)

       In Attorney  General    Opinion No. ‘C-247        (19641,   this office   determined   the
  issue as follows:

          [I]t is the opinion of this office that, while a lawyer
          who is a County Commissioner        may accept an appoint-
          ment from a district judge to represent      an indigent
          defendant,    the County Commissioner     may accept no
          compensation     from the county he serves for any such
           representation.    It is our opinion that the receipt of
          such compensation      would be contrary to the Commis-
           sioner’s  oath, and against sound public policy.

      We concur in this prior determination    of the issue. The answer to your
  question is that a coufiLy commissi.on,e.r may not accept compensation   for
  serving as appointed counsel. to an indigent defendant because it would be
  contrary  to the commission.er’s   oath and against sound public policy.




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        .


            The Honorable    George     N.    Rodriguez,      Jr.,    page   3 (H-329)




                                        SUMMARY

                         A county    commissioner       may        not receive
                   compensation   for serving          as appointed       counsel
                   for an indigent defendant.

                                                           -Very     truly yours,




            APP,POVED:
                                                       v     Attorney     General    of Texas




                      . YORK,       First    Asr;




            DAVID M. KENDALL,               Chairman
            Opinion Committee




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