Texas Attorney General Opinion: LA-111 Page: 3 of 5
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The Honorable Royce Adkins - Page 3 (LA No. 111)
On the basis of this decision, we must conclude that an individual's grand-
nephew is related to him within the third degree of consanguinity.
In order to invoke the proscription of article 5996a, appointment
must be made to an "office, position, clerkship, employment or duty. "
Although we have previously held that a court-appointed attorney "does not
occupy any civil office within the meaning of article 16, section 40 by
reason of such an appointment, " Letter Advisory No. 93 (1975), there can
be no doubt that a court-appointed attorney performs a "duty" for purposes of
article 5996a. "Duty, " as used in this statute, appears to have no special or
technical meaning, and in such a case should be read according to its ordinary
meaning. National Life Co. v. Stegall, 169 S. W. 2d 155 (Tex. Sup. 1943).
Thus, we believe that a district judge would be prohibited from appointing
his grandnephew to represent an indigent defendant so long as "the salary, fees,
or compensation of such appointee is to be paid for, directly or indirectly, out
of or from public funds. " Article 26. 05 of the Code of Criminal Procedure
provides, in part:
Section 1. A counsel appointed to defend a person
accused of a felony or a misdemeanor punishable by
imprisonment. . shall be paid from the general fund
of the county in which the prosecution was instituted.
Section 3. All payments made under the provisions
of this Article may be included as costs of court.
Although, as you suggest, an appointed attorney's fee which is taxed
as costs of court maybe recovered when the defendant is granted probation, we
do not believe that this possibility is sufficient to overcome the prohibitive
language of article 5996a. In our view, the language of article 26.05 is explicit:
it requires that the attorney's fee be paid from the county's general fund. How-
ever, a~ such payment from public funds is expressly prohibited by the nepotism
statute. Accordingly, it is our opinion that a district judge may not appoint his
grandnephew to represent an indigent defendant if the appointed counsel is to be
compensated in any manner from public funds.p. 380
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Texas. Attorney-General's Office. Texas Attorney General Opinion: LA-111, text, June 12, 1975; (https://texashistory.unt.edu/ark:/67531/metapth276774/m1/3/?q=%22~1~1~1%22~1: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.