                        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




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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




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