THE ATTOTZSET GEXEK.%L
OF TEXclS
October 1. 1987
Honorable Emory C. Walton Opinion No. JM-803
Criminal District Attorney
Eastland County Courthouse Re: Whether a court-appointed
Eastland, Texas 76448 counsel may be compensated for
services rendered and expenses
incurred prior to the time of
appointment and related ques-
tions
Dear Mr. Walton:
You request an opinion concerning the application of article
26.05 of the Code of Criminal Procedure to a claim for attorneys fees
submitted by an attorney appointed to defend an indigent criminal
defendant. We provide a chronology of events in this matter based on
the information you furnished to us, as follows:
Chronology
January 3, 1986: Defendant is one of several
persons indicted in a complex case involving
serious felony charges. Attorney whose fees are
in question appears as co-counsel shortly after
indictment.
Early 1987: Attorney is left as sole counsel.
after co-counsel is permitted to withdraw.
March 12. 1987: Affidavit is filed by attorney
requesting appointment as counsel.
April 1, 1987: At pre-trial hearing, attorney
announces that he is appearing for defendant pro
bono.
April 2-3, 1987: Following hearing, attorney is
appointed to represent defendant, as indigent
pursuant to article 26.04 of the Code of Criminal
Procedure.
p. 3799
Honorable Emory C. Ualton - Page 2 (JM-803)
April 15, 1987: Attorney files fee request,
stating that he has represented defendant since
September 1986, and setting forth, “in general
terms, ” bas:s for claim of $17,010.00 for counsel
fees and expenses.
April 15, 1987: Visiting judge in case issues
order approving fee request in toto.
May 8. 1987: Attorney submits judge’s order as a
claim to the county auditor. The county auditor
declines to present the claim to the county
commissioners for approval of payment because of
reservations about the “nature and amount of the
claim.”
May 18, 1987-June 5th, 1987: Trial of defendant.
You ask for our opinion on two questions:
1. Can counsel, who has represented a
defendant at various stages of the criminal
proceedings and is then appointed by the court to
represent the defendant after an evidentiary
hearing shortly before trial. be compensated for
attorney fees and legal services he rendered and
reimbursed for expenses he incurred in the subject
cause prior to the time of his appointment by the
court as counsel for the defendant?
2. Does the subject claim for court appointed
counsel fees and expenses sufficiently relate to
the statutory requirements for court ordered com-
pensation based on days appointed counsel appears
in court and for reimbursement of expenses to
require submission of the claim by the County
Auditor to the Commissioners Court?
Article 26.05 of the Code of Criminal Procedure governs the
payment of fees to counsel appointed to represent indigents in certain
cases, including those specified in article 26.04 of the Code. The
version of article 26.05 applicable at the time of the events
mentioned in your question provides:
Section 1. A counsel appointed to defend a
person accused of a felony or a misdemeanor
punishable by imprisonment, or to represent an
indigent in a habeas corpus hearing, shall be paid
from the general fund of the county in which the
p. 3800
t
Eonorable Emory C. Walton - Page 3 (JM-803)
prosecution wss instituted or habeas corpus
hearing held, according to the folloving schedule:
(a) For each day or a fractional part thereof
in court representing the 'accused, a reasonable
fee to be set by the court but in no event to be
less than $50;
(b) For each day in court representing the
accused in a capital case, a reasonable fee to be
set by the court but in no event to be less than
$250;
(c) For each day or a fractional part thereof
in court representing the indigent in a habeas
corpus hearing, a reasonable fee to be set by the
court but in no event to be less than $50;
(d) For expenses incurred for purposes of
investigation and expert testimony, a reasonable
fee to be set by the court but in no event to
exceed $500;
(e) For the prosecution to a final conclusion
of a bona fide appeal to a court of appeals or the
Court of Criminal Appeals, a reasonable fee to be
set by the court but in no event to be less than
$350;
(f) For the prosecution to a final conclusion
of a bona fide appeal to the Court of Criminal
Appeals in a case where the death penalty has been
assessed, a reasonable fee be set by the court but
in no event to be less than $500.
Sec. 2. The minimum fee will be automatically
allowed unless the trial judge orders more within
five days of the judgment.
Sec. 3. All payments made under the provisions
of this Article may be included as costs of court.
Sec. 4. An attorney may not receive more than
one fee for each day in court regardless of the
p. 3801
Honorable Emory C. Walton - Page 4 (JM-803)
number of cases in whicl he appears as appointed
counsel on the same day.
Code Grim. Proc. art. 26.05. See generally Gray County v. Warner 6
Finney, 727 B.W.2d 633 (Tex. Civ. App. - Amarillo 1987, no writ) for a
discussion of the factors generally considered in determining a
"reasonable fee" under the statute.
This office has. on several occasions, considered the application
of article 26.05. See, e.g., Attorney General Opinions MW-80 (1979);
H-909 (1976); H-499 (1974). The law delegates to the judge in the
case the power to decide what fee is reasonable, so long as the fee
finally set equals at least the statutory minimum and otherwise
complies with the statutes. Smith v. Flack, 728 S.W.Zd 784, 791. (Tex.
Grim. App. 1987); Attorney General Opinion H-499 (1975); see also
Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.
Cl". App. - Amarillo 1971, writ ref'd n.r.e.). Both the courts and
this office consistently have viewed determinations by judges about
fees as "carrying with them a presumption of necessity and
reasonableness." Attorney General Opinion H-499; Lubbock County, 471
S.W.2d at 108. In disputes about the amount of compensation due, the
burden rests with a commissioners court resisting payment to show that
a judicial determination of a "reasonable" fee in a particular case is
so arbitrary, unreasonable, and capricious as to amount to an abuse of
discretion. Attorney General Opinion H-499.
More particularly, a judicial order setting a fee in this
instance has been issued. In Attorney General Opinion O-1847 (1940).
this office was asked by a county attorney to review the order of a
judge. 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.
1. Article 26.05 has been substantially changed, effective
September 1, 1987. See Acts 1987, 70th Leg., ch. 979, 13. at 6674.
6678. The changes areprospective in application only.
p. 3802
Honorable Emory C. Walton - Page 5 (JM-803)
A judge has issued an order directing the county to pay a
specific sum of money to an attorney, based on a statutory provision.
That order is 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. -See Attorney General Opinion JM-287 (1984).
SUMMARY
The validity of a judicial order for the
payment of attorneys fees is a question which is
presently the subject of adjudication in the
courts, and therefore cannot be resolved by this
office.
J-&“Iw
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Don Bustion
Assistant Attorney General
p. 3803
Untitled Texas Attorney General Opinion
Combined Opinion