Discretionary appointment of counsel

By statute, Texas courts have both the general power to appoint counsel for indigent litigants in civil cases and the specific obligation to do so in a limited context. The general power statute states: “A district judge may appoint counsel to attend to the cause of a party who makes an affidavit that he is too poor to employ counsel to attend to the cause.” Tex. Gov’t Code Ann. § 24.016 (emphasis added). There is an equivalent provision for county court. Tex. Gov’t. Code Ann. § 26.049 (“The county judge may appoint counsel to represent a party who makes an affidavit that he is too poor to employ counsel.”)

The Texas Supreme Court has noted that while it had never addressed the limits of this discretionary statute, “[s]ome courts of appeals … have concluded that the discretionary boundary of section 24.016 is similar to a court’s inherent power to appoint counsel—counsel may be appointed in cases in which exceptional circumstances exist.”  Gibson v. Tolbert, 102 S.W.3d 710, 712–13 (Tex. 2003). See, e.g., Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex. App. 2002) (utilizing “exceptional circumstances” test from Travelers Indem. Co. of Conn., 923 S.W.2d at 593 (Tex.1996) to analyze authority under § 24.016, even though Travelers was discussing inherent authority).