March 3, 1976
The Honorable George N. Rodriguez, Jr. opinion No. R-789
County Attorney
El Paso County Re: Whether a'court-
Room 201, City-County Building appointed attorney
El Pa8o, Texan 79901 for an indigent
defendant is entitled
to compensation if
he is not required
to appear in court.
Dear Mr. Rodriguez:
You have requested our opinion regarding whether a
court-appointed attorney for an indigent defendant is entitled
to compenration for him time from county funds under article
26.05, Texae code of Criminal Procedure, if not required to
appear in court.
Article 26.05 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
prosecution was instituted or habeas
corpus hearing held, according to the
following schedule:
(a) For each day or a fractional
part thereof in court representing the
acoueed, a reasonable fee to be set by
the court but in no event ,to be less
than $50;
p. 3324
..
The Honorable George N. Rodriguez, Jr. - page 2 (H-789)
(b) For each day in court repre-
senting 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;
(6) For expenses incurred for
purposes of investigation and expert
testimony, a reasonable fee to be met by
the court but in no event to exceed $500;
(e) For the prosecution to a final
conclusion of a bona fide appeal to the
Court of Criminal Appeals, a reasonable
Lee to be mot by the court but in no
event to bm 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 to be met by the courtbut
in no event to be less than $500.
The statute does not provide expressly for the payment
of attorney's fees at the trial court level when there is no
court appearance. While Attorney General Opinion C-713~
(19661, held that reimbursement is possible under article
26.05 for certain expenses incurred in preparation for a
trial, even when the accused is not actually tried, it
indicated that the appointed attorney would not receive a
fee for him services if the case were dismissed.
The language of the statute itself supports this view.
Subsectionm (a), (b) and (c) provide for payment of "a
reasonable fee" based upon the appointed attorney's time in
court. Subsections (e) and (f) provide for payment of a
p. 3325
.
. .
The sienorable George N. Rodriguez, Jr. - page 3 m-789)
"reasonable fee" in cases on appeal. If the Legislature had
intended to compensate the attorney for his non-courtroom
time in cases in addition to those on appeal, it seemingly
would have specifically so provided.
Furthermore, compensation for out-of-court time w0uia
have to be made, if at all, pursuant to subsection (a), am
wexpenmem incurred." "Expense" is defined am
[tlhat which is expended, laid out or
consumed; an outlay; charge; cost; price,.
Black's Law Dictionary 687 (4th ed. 1951).
We believe that subsection (d) is limited in its application
to the reimbursement of expenses actually incurred by the
attorney, and cannot be extended to compensate him for his
out-of-court time. Thus, it is our opinion &at under present
statutes a court-appointed attorney for an indigent at the
trial court level is not entitled to compensation if he does
not appear in court.
SUMMARY
Under present statutes, a court-appointed
attorney for an indigent defendant at the
trial court level may not be compensated
under article 26.05, Texas Code of Crim-
inal Procedure, if the attorney does not
appear in court.
Attorney General of Texas
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The Honkable George N. Rodriguez, Jr. - page 4 (H-789)
Opinion CoQmittea
p. 3327