‘ .
March 24, 1967
‘Honorable Richard M. Price Opinion No. M-l@
District Attorney
104th Judicial District Re: Whether an attorney who
Abllene, Texas represent.6 a defendant, under
a court appointment on a sec-
ond trial, after the acquittal
of the criminal offense, Is
entitled to compensation under
Articles 46.02, 26.04 and
35.27, V.C.C.P. or other pro-
vlsiona of the law, under the
. , stated facts, and related
Dear Mr. Price: question.
In your letter of February 16, 1967, you ask for an opinion
of this office on the following questions, which are restat.ed
a6 follows :
(1) ?a an attorney appointed under Article 46.02, Sect~lon 8,
Vernon’s Code of Criminal Procedure*, to represent a person
previously acquitted of a criminal offense by reason of insanity
and committed to a state mental hospital, entitled to compensation
for representing such person under such appointment at his sub-
sequent sanity hearing held under authority of Artfcle 46.02,
Section 3?
(2) Are out-of-county witnesses who appeared at such sanity
hearing in reeponse to subpoena entitled to witness’~ fees and
mileage under Article 35.271
Section 8 of Article 46.02 provides, as far as is pertinent to
these questions that in a trial on the issue of insanity held
under Chapter 46 of the Code of Criminal Procedure, “If the defen-
dant has no counsel, t~he court shall appoint counsel to conduct
the trial for him.” ,~
*All A tlcles cited herein are Pram Vernon’s Code of Criminal
Procedire.
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Eqnorable Richard M. Price, Page 2,~(M-48 )
Section 2(c)(3) of Article 46.02 provides In regard~to insanity
hearings at the trial on the merits; “If the ‘jury finds the defen-
dant to have been insane at th time the offense is alleged to have
k;zn;tsm$tted, the defendant ihall stand acquitted of ‘the alleged
. (Underscoring .added.)
Section 3 of Artldle 46.02 under the hea,dlng, “Status of patient
acquitted”; provides that a person committed~ to a State mental
hospital,under Article 46.02 “upon a, jury finding of’insanity at
.the time of trial who has been ~acquitted df the alleged offense is
not by.reaaon of that offense a person cha rged with a criminal
ZTense . ‘I (Underscoring added. ) ”
Article~26.04 (a which deals with arraignment of an accused in
felony cases after ndictment, and misdemeanor cases punishable by
imprisonment, provides that,.whenever the Court.determines at an
arraignment or at any time prior to arraignment that, an accused
char ed with a felon or a misdemeanor punishable by imprisonment
dp,oor to,d counsel th e court shall appoint one or more
practicing attorneys to,defe& him. Article 26.05 provides for
the payment of such counsel, so appointed as aforesaid, from the
general fund of the county in which the prosecution was Instituted
according to a schedule therein set’,out.
From the foregoing, it is obvious that the person’for whom the
attorney was appointed to represent. at the sanity hearing, held for
the purpose’ of determining whether he should be released from. the
mental hospital because of regaining his-sanity, was not then a
person charged with a criminal offense, by.reason ome provisfons
of Artlae 4b 02 Th f the prqvisions ‘for compensation for
such appointed a&orniieazfeAot available under said Article 26,05,
because such Article 26.05 is applicable only to appointments of
attorneys in criminal cases made under authority,of Article 26.04(a).
We have found no statute providing compensation for attorneys appointed
under Section 8 of .Article 46.02 to conduct the trial for the~person
whose sanity is being determined, thus we answer your first question
in the negative.
As to your second que~stion, we point out that Article 24.01
defines. a subpoena as “...a writ issued to the, sheriff or other
proper officer cominandlng him to summon one or more persons there-
in named to appear at a certain~ term of the court,,or on a certain
day, to testify in a criminal action, or before an examining court,
coroner’s inquest, the grand jury, or before a judge hearing an
application under habeas corpus, or in any other case ‘in which the
testimony of a witnes’s may be required under the provisions of this
,Code. . me .‘I (Underscoring added.)
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Honorable Richard M. Price, Page 3 (~-48)
It Is observed that the subpoenas are authorized in "any...
case in which the testimony of a witness may be required under
the provisions oft this Code." A sanity hearing held under the
provisions of Article 46.02, Section 3 is a "case" provided for
by the code in which "testimony...may be required". Accordingly,
an out-of-county witness subpoenaed to testify at such a fianity
hearing is entitled to witness fees and mileage under Article
35.27, to be paid by the State. (It should, however, be observed
that although fees are authorized for sanity hearing witnesses,
there is presently no appropriation for payment.)
SUMMARY
An attorney appointed under Article 46,02, Section 8,
"2 .C.P., to represent a person previously
V. acquitted of a
criminal offense by reason of insanity and committed to a
state mental hospital, is not entitled to compensation from
the state or county for representing such person under such
a polntment at a subsequent sanity hearing under Article
48.02, Section 3, V.C.C.P.
(2) Out-of-county witnesses appearing at such sani.ty,hearings
in response to a subpoena are entitled to witness fees and
mileage under the provisions of Article 35-27, V,C,C.P., to
be paid by the State,
6 very truly,
C. MARTIN
rney General of Texas
Prepared by R. L. Lattimore and
Lonny F. Zwiener
Assistant Attorneys General
APPROVED:
OPIRIOR COMMITTRR
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Douglas Chfbton
Monroe Clayton
Howard Fender
Harold Kennedy
STAFF LEGALASSISTANT
A. 3. Carubbi, Jr,
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