.
The Attorney General of Texas
JIM MAlTOX AulFust22, 1986
AttorneyGeneral
Supreme Court Building Honorable Allen Ross Hightower Opinion No. JM-537
P. 0. Box 12549 Chairman
Austin, TX. 7071% 2548 Committee on Law Enforcement Re: Payment of attorneys' fees,
512,475.2501
Texas House of Representatives investigation costs, and expert
Telex 910/97613S7
Telecopier 512I475-0266
P. 0. Box 2910 witness fees under article 26.055
Austin, Texas 78769 of the Texas Code of Criminal
Procedure
714 Jackson, Suite 7W
Dallas, TX. 75202-4506
Dear Representative Rightower:
214i742.9944
You ask several questions about article 26.055 of the Texas Code
4824 Alberta Ave.. Suite 180 of Criminal Procedure. Article 26.055 provides for attorneys' fees
El Paso, TX. 79905-2793 and for reimbursement of particular expenses of attorneys appointed to
915/533alS4 defend certain prisoners who commit crimes while in the custody of the
Texas Department of Corrections. You indicate that a difference of
,,ml Texas. suite 700
opinion exists among the judges in Anderson County over the proper
don, TX. 77002-3111 payment of attorneys' fees, investigation costs, and expert witness
i ,~/2255886 fees under article! 26.055. Apparently, judges differ as to what
constitutes reasomble attorneys' fees. Some judges also refuse to
approve total investigation costs and expert witness fees which exceed
906 Broadway, Suite 312
Lubbock. TX. 79401-3479
$500. This amount :isthe maximum fixed by statute for investigation
9061747-5238 costs and expert witness fees in cases not involving the Texas
Department of Corrections prisoners covered by article 26.055.
See Code Crim. Pro':. art. 26.05, §l(d). Accordingly, your questions
4309 N. Tenth. Suite B
Guire analysis of how articles 26.055 and 26.05 apply.
McAllen, TX. 79501-1885
512692-4547
Article 26.055 provides, in full:
200 Main Plaza, Suite 400 sec. 1. A county in which a facility of the
San Antonio, TX. 79205.2797
Texas Department of Corrections is located shall
51212254191
pay from its general fund only the first $250 of
the aggrc!g;ate
sum allowed and awarded by the court
An Equal Opportunity/ for attorneys' fees under Article 26.05 toward
Affirmative Action Employer 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 Ixisoner was originally committed for an
offense c.ommittedin another county.
Sec. 12. If the fees awarded for court-
appointei.counsel in a case covered by Section 1 of
p. 2471
.
Honorable Allen Ross Hightouer - Page 2 (JM-537)
this article excetzd $250, the court shall certify
the amount in exct!ssof $250 to the Comptroller of
Public Accounts elf 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.
Sec. 3. (a) In the defense of a prosecution of
an offense committed while the actor was a prisoner
in the custody of the Texas Department of
Corrections, the state shall reimburse a counsel
appointed to defend the actor for expenses incurred
by the counsel, in an amount that the court
determines to be reasonable. for payment of:
(1) salaries %nd expenses of foreign language
interpreters and interpreters for deaf persons
whose services arc!necessary to the defense;
(2) consultatkn fees of experts whose
assistance is dircztly related to the defense;
(3) travel expanses for witnesses;
-.
(4) compensatkbn of witnesses;
(5) the cost of preparation of a statement of
facts and a transcript of the trial for purposes of
appeal; and
(6) food, lod@g, and travel expenses incurred
by the defense s:ounsel and staff during travel
essential to the defense, calculated on the same
basis as expenses incurred by the prosecutor's
staff related to Izssentialtravel are calculated.
(b) The trial court shall certify the amount of
reimbursement for expenses under this section to
the Comptroller of Public Accounts of the State of
Texas. The comp,:roller shall issue a warrant in
that amount to t'he defense counsel or, if the
comptroller determines that the amount certified by
the trial court is unreasonable, in an amount that
the comptroller dstermines to be reasonable.
(c) Notwithstanding anything to the contrary
contained in '&is Act, the reimbursement for
expenses submittes by the defense counsel shall not
exceed the amount ,thecounty would pay for the same
p. 2472
Honorable Allen Ross Highto'rer- Page 3 (JM-537)
activity or serv:Lce,if that activity or service
was not reimbursed by the state. The trial judge
shall certify compliance with this paragraph upon
request by the comptroller of public accounts.
Article 26.055 provides for state contributions for the cost of
defending certain prisoners :Lncounties in which the facilities of the
Texas Department of Corrections are located. The county ordinarily
bears the cost of representing indigent defendants without state con-
tributions. See Code Crim. I?roc.art. 26.05. Cf. art. 26.041 (court-
appointed counsel in Harris County). You askabout (1) attorneys'
fees and (2) investigatior.costs and expert witness fees in cases
involving the prisoners covered by article 26.055. As will be shown
in the discussion to follow, articles 26.05 and 26.055 are inter-
related.
Section 1 of article 26.055 limits the liability of certain
counties to "the first $251)of the aggregate sum allowed and awarded
by the court for attorneys' fees under article 26.05." (Emphasis
.added). Article 26.05 sets :fortha somewhat flexible schedule for the
compensation of appointed czmsel. Section 1 of article 26.05 directs
the court to fix "a reasonable fee" but sets a minimum amount for
representation in particular proceedings:
(a) For each day or a fractional part thereof
in court represerrting the accused, a reasonable
fee to be set by ,thecourt 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, E reasonable fee to be set by the
court but in no ev,entto be less than $50:
. . . .
(e) For the I'rosecutionto 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 Ilrosecutionto a final conclusion
of a bona fide appeal to the Court of Criminal
p. 2473
.
Honorable Allen Ross Hightower - Page 4 (JM-537)
Appeals in a case where the death penalty has been
assessed, a reasonable fee to be set by the court
but in no event to be less than $500.
Because article 26.055 refers directly to article 26.05, the amount of
fees allowed must be determined according to these sections of article
26.05. Accordingly, so long;as a court complies with the minimum fee
schedule, it has discretjon in determining what constitutes "a
reasonable fee" for an appointed attorney. - See Attorney General
Opinion H-909 (1976).
You also ask about reimbursement for investigation costs and
expert witness fees under article 26.055. Section 3(a) of article
26.055 provides that the state shall reimburse appointed counsel for
certain enumerated defense expenses. Unlike section 1 of article
26.055, section 3(a) of art:lcle 26.055 does not refer expressly to
article 26.05. Section 3(a:Iprovides simply for reimbursement "in an
amount that the court detrrmines to be reasonable. . . .- Section
3(c) of article.26.055, however, states that
[nlotwithstanding anything to the contrary
contained in thd.s Act, the reimbursement for
expenses submittei by the defense counsel shall
not exceed the amtsuntthe county would pay for the
same activity or-service, if that activity or
service was not ;,eimbursed by the state. The
trial judge shall certify compliance with this
paragraph upon x'equest by the comptroller of
public accounts. (Emphasis added).
Article 26.05 governs "the amount the county would pay for the same
activity or service" when that activity or service is not reimbursed
by the state.
Article 26.05 provides for reimbursement for investigation costs
and expert witness fees in r;ectionl(d):
For expenses incurred for purposes of investi-
gation and expert testimony, a reasonable fee to
be set by the court but in no event to exceed
$500.
Section 3(c) of article 26.055 makes this limit applicable to article
26.055. Accordingly, within this $500 limit, the court has discretion
in determining reasonable rv$imbursementfor investigation costs and
expert witness fees. See Quin v. State, 608 S.W.2d 937, 938 (Tex.
Crim. App. 1980); Day7 State, 704 S.W.2d 438. 440 (Tex. App. -
--
v. State, 647 S.W.2d 306, 309 (Tex. App.
Amarillo 1986. no pet.); Hi:il.
- Corpus Christ1 1982, pet: for discretionary rev. ref'd); see also
p. 2474
Honorable Allen Ross Hightower - Page 5 (JM-537)
Reed v. State, 644 S.W.2d 479 (Tex. Crib. App. 1983); Volanty v.
State, 663 S.W.2d 897 (Tex. App. - Corpus Christ1 1983, pet. for
discretionary rev. ref'd).
SUMMARY
The amount o!i attorneys fees, investigation
costs, and expert witness fees allowed under
article 26.055 of the Texas Code of Criminal
Procedure must te determined within the limits
specified in article 26.05 of the code. Within
the limits set forth in article 26.05, the court
has discretion :In determining what constitutes
reasonable fees an,dcosts. .
J k
Very truly your ,
k
JIM MATTOX
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney Genmeral
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 2475