Untitled Texas Attorney General Opinion

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