Could El Paso district judges require every local lawyer to take civil cases for indigent clients through a bar-run pro bono program?

Texas AG Opinion JM-161: Civil Pro Bono Appointments

Plain-English summary

JM-161 concluded that article 1917 did not authorize El Paso County's ten district judges to create a joint program requiring local lawyers to accept up to two civil domestic matters for indigent clients each year.

"Article 1917 does not authorize district judges to act jointly to establish a program for matching indigents with counsel in civil cases."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

The statute instead allowed an individual district judge to appoint counsel for an indigent party in a particular case before that judge.

"The statute authorizes a district court judge to appoint counsel in a particular cause when the party makes the required showing."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

The opinion also concluded that judges could not delegate discretionary decisions about appointments, excuses, indigency standards, and individual eligibility to the El Paso Bar Association or another entity.

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What did the El Paso program require?

The joint order said every active Texas lawyer practicing or employed in El Paso County could be appointed to no more than two domestic matters per fiscal year.

"Such lawyers shall be appointed under this program to no more than two domestic matters each fiscal year (October 1 to September 30)."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

Who would decide whether a client was indigent?

The order assigned screening to the El Paso Bar Association or its delegate and used Legal Services Corporation standards.

"The EL PASO BAR ASSOCIATION or its delegate shall screen applicants to the program to determine indigency."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

"Indigency for purposes of this program shall be that defined by Legal Services Corporation guidelines and regulations."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

Did the AG decide the involuntary-servitude and due-process questions?

No. The opinion said it did not need to reach those constitutional concerns because article 1917 did not authorize the program.

"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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

Could a judge still appoint a lawyer in one civil case?

Yes. The opinion read article 1917 as authorizing a judge to appoint counsel in a particular cause after the party made the required poverty affidavit.

"Judges of district courts 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."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

Why could the bar association not make the appointment decisions?

The opinion characterized the choice whether to appoint counsel, which lawyer to appoint, and whether to excuse an attorney as discretionary judicial powers that could not be delegated without express statutory authority.

"It is well established that a public officer cannot delegate judicial as opposed to ministerial powers without express statutory authorization."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

What was the result for the entire joint order?

The opinion found the order invalid as a whole.

"The quoted order is invalid in its entirety."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

Background and legal framework

The ten district judges had signed a joint order implementing the pro bono plan, while the county bar would screen applicants and notify appointed lawyers.

"You state that the ten district judges of El Paso County have signed a joint order implementing a pro bono publico plan in El Paso County."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

"The bar association for the county will screen applicants to determine indigency and will notify attorneys of their appointments."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

The AG traced article 1917 to an 1846 law that addressed appointments in individual civil or criminal cases involving parties too poor to employ counsel.

"The predecessor of article 1917 is found in the 1846 statute organizing the district courts and defining their powers and jurisdiction."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

The opinion contrasted article 1917 with a separate law that expressly allowed judges in an administrative judicial district to act jointly to help dispose of cases.

"Cf. V.T.C.S. art. 200a.04 (judges in Administrative Judicial District expressly authorized to act jointly to facilitate disposition of cases)."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

Holding

"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 indigency of a particular applicant for counsel."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0161
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0161.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attorney General of Texas

JIM MATTOX
Attorney General

June 7, 1984

Honorable Luther Jones
El Paso County Attorney
Room 201, City-County Building
El Paso, Texas 79901

Opinion No. JM-161

Re: Whether district judges may institute a program to represent indigents in civil cases

Dear Mr. Jones:

You state that the ten district judges of El Paso County have signed a joint order implementing a pro bono publico plan in El Paso County. The order provides that each attorney practicing or employed 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 attorneys of their appointments. You suggest that an attorney 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. Const. amends. I, V, XIV.

The order reads as follows:

IN THE DISTRICT COURTS
OF EL PASO COUNTY, TEXAS

IN RE:
EL PASO BAR ASSOCIATION
PRO BONO PUBLICO PROGRAM

ORDER

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

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 publico 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.]

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

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

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 indigents). Article 1917, V.T.C.S., provides as follows:

Judges of district courts 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 the 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, § 11, 2 H. Gammel, Laws of Texas 1509 (1898). See also Code Crim. Proc. art. 26.04 (appointment of counsel in criminal 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 cases. Cf. V.T.C.S. art. 200a.04 (judges in Administrative Judicial District expressly 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 ambiguous or invalid order. Ex parte Duncan, 62 S.W. 758 (Tex. Crim. App. 1901).

The order also attempts to delegate significant responsibility for carrying out the pro bono publico 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 authorizes 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 delegate judicial as opposed to ministerial powers without express statutory authorization. Newsom v. Adams, 451 S.W.2d 948 (Tex. Civ. App. - Beaumont 1970, no writ); Moody v. Texas Water Commission, 373 S.W.2d 793 (Tex. Civ. App. - Austin 1963, writ ref'd n.r.e.). 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. Ray, 556 S.W.2d 870 (Tex. Civ. App. - Corpus Christi 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. - San Antonio 1914, writ ref'd) (distinguishing "judicial" and "ministerial" acts in context of mandamus action).

A presiding judge's decision to assign a judge to try cases in a particular county and his choice of a particular judge are both discretionary acts. Morton's Estate v. Chapman, 75 S.W.2d 876 (Tex. 1934) (mandamus suit). See also White v. Reiter, 640 S.W.2d 586 (Tex. Crim. 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 delegate. Cf. White v. Reiter, supra; Ex parte Mays, 212 S.W.2d 164 (Tex. Crim. App. 1948) (district judge must consider attorney's claim that conflict of interest prevents his appointment in particular criminal 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 authorize joint action by a group of district judges to establish a program providing generally for representation of indigents. Moreover, specific provisions of the order attempt to delegate nondelegable discretionary powers of the district judges, such as the power to appoint an attorney in a particular case, excuse attorneys from an appointment, determine 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 indigency of a particular applicant for counsel.

Very truly yours,

JIM MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
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