Untitled Texas Attorney General Opinion ( 1984 )

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.,
p. 711