January 20. 1975
The Honorable Jimmie D. Oglesby Opinion No. H- 499
County Attorney
Midland County Courthouse Re: Whether a commissioners
Midland, Texas 79701 court is required to pay a fee
awarded an attorney for repre-
sentation of an indigent defendant.
Dear Mr. Oglesby:
You have requested our opinion on several questions arising from
the following situation:
A capital murder indictment was returned in [a]
District Court of Midland County. . . . The Judge . . .
appointed two local attorneys from the same law firm to
represent the defendant. It was the first capital case
tried i.n Midland County under the new [“death penalty”]
stat&e?, and one of the first such cases tried in this
State. Thereafter, [the] attorneys appeared in Court
on pte-trial matters for fractional portions of two
days, and then spent eight days in actual jury selection
and trial. On the first day of trial, the Court, on motion
of the defense, struck from the indictment the capital
punishment feature, and the balance of the tri.al was
conducted under that ruling. The jury convicted thr
delrntlant of murder wil:h malice and assessed his
punishment at twenty yrars confinement Afl.er the
jury had returned its verdict and the judgment of
conviction [had been] entered, a hearing was held . . .
on the matter oi the fee to be awarded the attorneys . . .
under Article 26.05, Sec. 2. . . . Apparently no one . . .
[participated at the hearing] on behalf of the State or
County.
p. 2246
The Honorable Jimmie D. Oglesby page 2 (H-499)
At the conclusion of [the] hearing, the . . . Judge
set a fee of $10,000, . . . $4,000 . . . for one lawyer
and $6,000 for the other. The award of attorneys’
fees was made pursuant to Tex. Code Crim. Proc.
Ann., Art. 26.05, $1, as amended (Supp. 1973). . . .
The order of the . . . Judge was subsequently
presented to the Midland County Commissioners Court
by the lawyers who . . . demanded payment. The
County had initially budgeted $10,000 for the entire
year of 1974 to pay court appointed counsel in criminal
matters. At the time the demand was made upon the
Court, $1, 800 of that budget had already been disbursed
in other cases, leaving only $8, 200 in the budget for
that purpose. . . .
Your first two questions are:
1. Is any sort of Commissioners Court action on this
matter required? If so, what action is the Court
required to take?
2. Is the order of the Trial Judge conclusive on the
County insofar as the amount of tk fee he aet? II
not, by what procedure and by whom may it be
reviewed?
The order awarding attorneys’ fees is a determination similar in
nature to the determination which a District Judge makes when he sets
the salary to be paid by a county to an Adult Probation Officer, pursuant
to article 42.12 section 10, Tex. Code Crim. Proc. The delegation 01
such a duty to a District Judge is not unconstitutional. Commissioners
Court of Lubbock County v. Mart@, 471 S. W. 2d 100 (Tex. Civ. App.
Amarillo, 1971, writ ref., n. r. e.).
Article 26.05, Tex. Code Crim. Proc., reads (in pertinent part)
p. 2247
The Honorable Jimmie D. Oglesby, page 3 (H-499)
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 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: . . . .
In the Lubbock County case the appellate court noticed that such
determinations by judges carried with them a presumption of necessity
and reasonableness, and held that in disputes about the amount of
compensation the burden rests with the resisting commissioners court
to show that the judges’ actions were 90 unreasonable, arbitrary and
capricious as to amount to an abuse of discretion.
You have asked our opinion concerning the “reasonableness” of
the compensation awarded, particularly with respect to making an
award to two members of the same firm, consideration by the judge
of time spent on out-of-court preparation. and the effect of striking
the capital punishment feature from the case in mid-trial.
Whet~hrr the cast is regarded as a capital case or a non-capit.al~
case, articlr 26. 05. Tex. Code Crim. Proc., specifics only t,hc minimum
fees which the court. may fix. Fee:s awarded nerd on1.y bo reaaonablc. WC
cannot resolve disputed que,:dtions of fact, about the “rcasonabl,enesa” of t.hc
action taken. If the County believes il. can sustain its burden of showing
here that the fees are unreasonable it can insfitute a declaratory judgment
or decline to pay and be subject 1.0 a mandamus or other proceeding.
p. 2248
The Honorable Jimmie D. Oglesby, page 4 (H-499)
SUMMARY
The commissioners court of a county is under a
duty to budget and order paid the amount of any reason-
able attorney’s fee properly set by a criminal court
judge pursuant to article 26.05. Tex. Code Grim.
Proc., for the representation of indigent defendants.
The trial judge’s order can be overturned only on a
showing that it was 80 arbitrary, unreasonable and
capricious as to amount to an abuse of discretion.
This office cannot resolve disputed fact issues of
this type which involve the question of the reason-
ableness of the fees set.
Very truly yours,
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
7
Opinion Committee
p. 2249