Untitled Texas Attorney General Opinion ( 1974 )

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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.
p. 1,528
1 .
\
\
.
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
p. 1529