Could a Texas state legislator receive court-appointed counsel fees for defending a prison inmate?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-287: Appointed Counsel Fees
Plain-English summary
The Walker County Criminal District Attorney asked whether a state legislator could be paid as court-appointed counsel under Code of Criminal Procedure article 26.055. The request concerned attorney Craig A. Washington, then a state senator, and court orders directing Walker County and the state to pay fees and expenses for his representation of a prison inmate. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
JM-287 did not decide whether the compensation was lawful. It explained that the two court orders were subject to appellate review and possible collateral litigation. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
The Attorney General invoked the office's policy against using the opinion process as a substitute appellate tribunal. It stated that the proper method for correcting alleged judicial error was “action by the proper reviewing tribunal,” not an attorney general opinion. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
The disposition was therefore procedural: “we respectfully decline to address your request for an opinion on this matter.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.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
Did JM-287 decide whether a legislator could be paid as appointed counsel?
No. The Attorney General declined to answer because courts had already issued payment orders and the matter was subject to judicial review. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
Why would the Attorney General not review the trial judge's orders?
JM-287 quoted the office's prior position that it was not the Attorney General's role “to serve as a quasi appellate tribunal for the correction of what are conceived to be errors committed by the courts of this state.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
What did article 26.055 do in the described case?
For prosecution of an inmate who committed an offense while in a Texas Department of Corrections facility outside the inmate's original county, the facility county paid the first $250 in covered defense expenses and the state paid a certified excess amount. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
What general policy did the opinion announce?
Its summary stated: “The policy of this office is not to determine the validity of the payment of attorneys fees when this matter is the subject of adjudication in the courts.” Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
Background and statutory framework
Article 26.055 allocated fees and expenses for appointed counsel defending certain inmates prosecuted for offenses committed while in state custody. The county containing the prison facility paid the first $250, and the comptroller issued a warrant for court-certified amounts above that threshold. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
District Judge Darrell Hester had entered two orders directing Walker County and the state to compensate Senator Washington. Governor Mark White had also approved a grant to Walker County for the legal-services payment, and the comptroller had directed Washington to collect those funds from the county. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
Because those orders were judicial acts subject to review in court, JM-287 stopped without deciding the statutory or constitutional merits of paying the legislator. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
Citations and references
- Code of Criminal Procedure articles 26.05 and 26.055
- Attorney General Opinion O-1847 (1940)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0287
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0287.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
December 31, 1984
Honorable Frank Blazek
Criminal District Attorney
Walker County Courthouse
1100 University Avenue
Huntsville, Texas 77340
Opinion No. JM-287
Re: Whether a state legislator may be compensated as court-appointed counsel under article 26.055 of the Code of Criminal Procedure under certain circumstances
Dear Mr. Blazek:
You have requested our opinion as to whether a state legislator may be compensated as court-appointed counsel under article 26.055 of the Code of Criminal Procedure. That statute provides, in pertinent part:
Section 1. A county in which a facility of the Texas Department of Corrections is located shall pay from its general fund only the first $250 of the aggregate sum allowed and awarded by the court for attorneys' fees, investigation, and expert testimony under Article 26.05 toward defending a prisoner committed to that facility who is being prosecuted for an offense committed in that county while in the custody of the department if the prisoner was originally committed for an offense committed in another county.
Sec. 2. If the fees awarded for court-appointed counsel in a case covered by Section 1 of this article exceed $250, the court shall certify the amount in excess of $250 to the Comptroller of Public Accounts of the State of Texas. The comptroller shall issue a warrant to the court-appointed counsel in the amount certified to the comptroller by the court.
Craig A. Washington, who is at present a member of the Texas Senate, accepted appointment in 1981 as counsel to represent a defendant who was indicted for murder of a prison guard while the defendant was incarcerated in the Texas Department of Corrections. By order of July 17, 1984, District Judge Darrell Hester directed Walker County and the state of Texas to pay to Senator Washington “the sum of $50,000.00 as attorney's fees and incurred costs” in the criminal action. By supplemental order dated September 19, 1984, Judge Hester directed Walker County and the state to pay an additional $10,054.52 to Senator Washington “for reasonable and necessary expenses and costs.”
Governor Mark White approved a grant to Walker County for $50,000 for the purpose of compensating Senator Washington for his legal services. Because of this grant, the comptroller has refused to pay Senator Washington as directed by the court and has advised him to collect these funds from Walker County.
In Attorney General Opinion O-1847 (1940), this office was asked by the county attorney of Webb County to hold that a county judge had exceeded his authority in refusing to perform a statutory duty on constitutional grounds. In response, the attorney general declared:
It is not within the proper scope of the functions of this department to serve as a quasi appellate tribunal for the correction of what are conceived to be errors committed by the courts of this state. The method for reviewing and correcting such errors does not lie in an appeal to this department for an opinion upon a disputed question, but in action by the proper reviewing tribunal.
The two orders of Judge Hester have directed the state of Texas and Walker County to pay a specific sum of money. These orders are subject, of course, to appellate review in the courts, and collateral litigation is possible. As a matter of policy, this office will not exercise its quasi-judicial function to render opinions when matters are in litigation before the courts or have been definitively resolved through judicial action. Accordingly, we respectfully decline to address your request for an opinion on this matter.
SUMMARY
The policy of this office is not to determine the validity of the payment of attorneys fees when this matter is the subject of adjudication in the courts.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
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