Untitled Texas Attorney General Opinion

. 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