Texas Attorney General Opinion: GA-0884 Page: 1 of 4
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ATTORNEY GENERAL OF TEXAS
September 7, 2011
The Honorable Jack A. McGaughey Opinion No. GA-0884
97th District Attorney
Post Office Box 55 Re: Appointment of counsel in criminal cases for
Montague, Texas 76251-0055 non-indigent defendants (RQ-0962-GA)
Dear Mr. McGaughey:
You ask about the appointment of counsel in criminal cases for non-indigent defendants.
You provide the following account of events giving rise to your question.2 In 2009, the county and
district judges serving Archer County, Texas, issued a standing order establishing a fee schedule for
attorneys appointed to represent indigent criminal defendants in Archer County, which you inform
us has not been superseded. Request Letter at 1. In 2010, the commissioners court of Archer County
entered into a contract with two attorneys retained to represent indigent defendants in cases in the
county, with the basic rate being $150 for each guilty plea in a single misdemeanor case. Id. at 1-2.
You first ask whether a "County Judge may appoint counsel in criminal cases for non-
indigent defendants." Id. at 1. Generally, a court does not have a duty to appoint counsel absent a
showing of indigency. Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988). However,
the Code of Criminal Procedure provides that a court "shall" appoint counsel "[w]henever a court
or the court's designee . . determines that a defendant charged with a felony or a misdemeanor
punishable by confinement is indigent or that the interests of justice require representation of a
defendant in a criminal proceeding ... ." TEX. CODE CRIM. PROC. ANN. art. 26.04(c) (West Supp.
2010) (emphasis added)." Because the statute uses the disjunctive "or," it allows for the possibility
'See Letter from Honorable Jack A. McGaughey, 97th District Attorney, to Office of the Attorney General at
1 (Apr. 11, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").
2We have also received briefing that asserts additional or different facts. See Letter from Honorable Gary W.
Beesinger, Archer County Court Judge, to Office of the Attorney General at 1-2 (Apr. 15, 2011). As this office does
not attempt to resolve fact questions, we consider your statement of facts solely as premises for your questions. See Tex.
Att'y Gen. Op. No. GA-0738 (2009) at 2 n.3.
3Article 26.04 and other provisions of the Fair Defense Act were amended during the regular session of the 82nd
Legislature, effective September 1, 2011. See Act of May 23, 2011, 82d Leg., R.S., ch. 67 1, 1, 2011 Tex. Sess. Law
Serv. 1622, 1622-24 (West) and Act of May 26, 2011, 82d Leg., R.S., ch. 984, 7, 2011 Tex. Sess. Law Serv. 2460,
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Texas. Attorney-General's Office. Texas Attorney General Opinion: GA-0884, text, 2011; (https://texashistory.unt.edu/ark:/67531/metapth275780/m1/1/: accessed April 24, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.