June 2C, 1966
Honorable Joe Resweber Opinion Ro. C-713
County .Attorney
Harris County Re: Construction of Article
Houston, Texas 26.04, Vernon’s Code of criminal
Procedure, In reference to
fee8 of attorney8 appointed to
repreeent defendants.who are
Dear Mr. Reeweber: too poor to employ counsel.
Your opinion request to this office poser ,tho r0u0ring
quertions:
"1. Article 26.04, Texas Code o? Crimiarl
Procedure, 1966, providea that 'whenever the Court
determines at an arraignment or at any time prior
to an arraignmentthat an accueed charged with a
felony or a mlBdemeanor punlehabls by imprisonment
Is too poor to employ,counsel, the Court &all
appoint one or more practicing attorneys to de-
fend him.' When ~two or#&e attorneys are appointed
by the Court to defend a +i‘lngle defendant, le each
attorney entitled to receive a separate fee asp
eat out in the schedule under Article 26.051
“2. In addition to the fees an attorney
may receive under Article 26.05 Section l(a), ,
- 10 , l(d) or l(e), C.C.P., 196k, ~for representing
In digent accused, may he receive additional com-
gnsation under Article 26.05, Section l(c) for
. ., his time on an hourly basla, or some other method
\ OS compensation for doing inrestigation work In the
6ame case?
“3. If an appointed attorney i8 entitled
to receive the additional compensation lnquked
about in question Do. 2, is he entitled to compen-
eatlon for time expended by employees In hip office
for doing investigation work in the same case?
"4. Where a elngle indigent defendant’ts
accused of two or more felonles'and/or nisdemeanor6
' puniehable by Imprisonment. and the'sune attorney i8
appointed to represent him In each case, may the
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1
Honorable Joe Resweber, page 2 (C-719) ‘:
attorney be paid for his expeqses of investi tion
under Article 26.05, Section l(c), incurred 8
a case that is dismissed without trial?
‘5. Where two or more of the cases ,des-
cribed in question 190. 4 involrlng a single defan-
dant are dismissed, may the attorney recover ex-:
penses incurred in each ca@e, up to $250.00, wh4n
such might result In payment of more than $250.00
for expenaes in the defense of a single defendant
but In separate cases?
“6.Article .26.05, Section 4, C.C.P.,
1966, provides that (an attorney may not receive
more than one fee for each day In Court regardless~
of the’ number of cases in which he appears ~a8
appointed counsel on the same drJT.1 Whera an
appointed attorney appears In more than one court,
whether District Court, County Court or Justice
Court, on the same day in defense of one or more
defendants in different cases, may he receive
more than one fee? .,.
.~’
"7. Under Section 2 bf A&le 26.05,
C.C.P., 1966, the minimum fee is automatically allowed
urilesa the trial judge orders: more within fir4 daya
of judgment. Hay more than the mlnimnmrfse be paid
pursuant to a nunc pro tune order entered in the’.
minutes st; the direction of the Court?"
A&.to the firet question, it Is the opinion of’this
office, that when two or more attorney6 are appointed by
the Court to defend a sing14 defendant, each l ttomey is
entitled to receive a eeparate fee. Article 26.04, Vemon’e
Code of Crlmlnal Procedve provides, in part that: .
II
. . .one or more. . .attomeys may be
appointed to defend an accused person,
in a given case.’ ($laphasla Adds+.), ..~
Article 26.05, Section 1, Vernon's code of Criminal
Procedure, provides In part that:
” . . .a counsel appointed to defend a
PertIOn ba ptid., . i” (Eapha6ls
Added)
When these two Articles are construed together, ‘it
is obvious that the Legislature intend@ that each attorney
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Honorable Joe Resweber, page 3 (C-713)
appointed by the Court should be paid in accordance with
the provision8 of Article 26.05.
Question two deals with Article 26.05, Section 1
(c), Vernon’sCode of Criminal Procedure, which states
with regard to compensation of coux1~4l~ “For expanses in-
curred for p oses of investlgatlon and expert t t
not mm4 than"p 250.00~. (Rmphasis added) It is ths'
that this provision Is intended to relmburs4 the attorney
for money paid,out for purp0848 of investigation and ex-
pert testimony and Is not to be construed as allowing
additional fees for service rendered to the Indigent.
Question three Is not answered oinc4 question two
Is answered In the negative. However, the appointed
attorney Is entitled tomreimbursement of expenses of in-
vestigation or of exp4rt testimony whether incurred by
hlms4lf or by his employ448 uorlclng under his direction.
Question four a&s whether or not the lttomey may
be reimbursed under Article 26.05, Motion l(c), Vernon*8
Code of Crlmlnal Procedure for 4xp4ns4s in ~484s which
are Investigated but dismiss4d without trial. Wa held In
Attorney General Opinion Ho. c-657 that Section l(c) ,applles
to examining trials, and that counsel who incurred ex-
penses for investigation and expert testimony are entitled
to be reimbursed therefor in accordance with said article.
B'urthcrmore, when the court appoints an attorney to
represent an accused person, it is his duty to make an in-
vestigation of the facts and otherwise prepare for trial.
If the case Is dismissed the appointed attorney would not
receive a fee and the Legislature could not ha-14 intended
that the appointed attomay in such cases would not be
reimbursed for money actually spent in praparatlon for the
trial. We therefore are of the oplnlon that reLmbursement
under Section l(c) does not depend upon whether the accused
person is actually tried.
Qus$tion five inquires whether or not the attorney
nay receive~his expenses under Article 26.05, Section l(c),
Vernon's Code of Criminal Procedure for each of the case6
hc investigates when the defendant is accused of two or
more felonies and/or misdemeanors punishable by imprison-
mant. If the different offenses arise out of the sane
situation so that the facts and expert testimony for one
offense would suffice for a defense of all the offenses,
the attorney's recovery of exp4nses under Section l(c)
~" would be limited to $250.00. However, when several cases
are Involved, each of which arises out of a separate and
distinct set of facts, the attorney msy recover up to $250.00
for expenses Incurred for each case which arises out of a
separate and distinct fact situation, and which requires
separate Investigation and expert testimony.
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Honorable Joe Resweber, page 4 (C-713)
Question six deals with the proper construction of
Section four of Article 26.05 which
- - reads: _. 'tAn attorney
_ ~,
may not receive.more than one fee for eacn day &n Court,
regardless of the number of cases in which he appears
as appointed counsel on the same day."
'.
In Attorney General Opinion Ro. c-639, dealing with
compensation of an attorney under.Article 26.05 it was
held that: .
"If such attorney represents more
than one defendant on the same day,
he is entitled to compensation only .'
once on that day."
Keeping this holding in mind,snd reading Sectlron 4
exactly as it is written, you are advlsed that an attorney ,'
is entitled toto,compensation only once per day in the re- :
presentation of indigent defendants,, irrespective of
whether or not he nay represent several diffarqnt,'.defen-
dants In several different courts.
Question seven inquires whether payment o&ore than
the minimum fee is proper pursuant to an order of the
court entered of record nunc pro tune mom than five;days
after judgment.
Section 2 of Article 26.05 reads as follows:
"The minimum fee will be automatically
allowed unless the trial judge orders
more uithln five days of the judgment."
In 33 Tex. Jur. 26 516, it Is said:
"When at a particular term, a court
rendered a judgment that falled of
entry in the mlnutes or was not correct-
ly entered therein, the Courtmay at
a subsequent tern, on proper evidence .1
ascertain the facts and make an entry
nunc pro tune; the effect thereof is
.as if the judgment has been properly I.
entered in due course."
On page 519, it is added that:.
"Usually, a judgment nunc pro tune lies
to correct a judgment actually rendered
at the proper tine but not properly
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. -_ .
Honorable Jo4 Resweber, page 5 (C-713)
*
antercd in the record. Therefore, -un-
less the judgment sought to be entered
was actually rendered at a preceding
term, a judgment nunc pro tune is
generally not prop4r. Moreovbr, a
judgment nunc pro tune presupposes the
rendition of a previous valid judgment.”
The above statements explain that th4 purpose:,or a
nun pro tunc,entry and its only legitAmat4 function is
to evidence correctly in the records a court judgment,
decree, or order actually made by It, but, for some reason, .
not entered of record at the proper time. You are advlsed
that a nunc pro tune entry of an order of the trial
judge may be made to reflect t.hat payment of fees in ex-
cess of the minimum was properly ordered within five days
of the judgment. If the trial judge did not,,withln five
days of the judgment, order more thsn the minImum foe,
an entry of an order nunc pro tune would not be proper.
SUMBIARY
---em--
When two or more attorneys areezgrinted
by the Co&t to defend’4 single defendant
attorney is entitled to receive a separate foe as
set out in Article 26.05,Vernon’s Code of CtWLnal
Procedure.
2. Section l(c) of Article 26.05 is I.&
tended to provide for the payment of expenses in-
curred by tht appointed counsel and is not avall-
able as a means of extra compensatioh for services
r4ndered to the indigent defendant.
3. The attorney is entitled to reimburse-
ment of expenses, whether the expenses are incurred
by himself or by his employe4s working under his
direction.
4; An appointed attorney is entitled to
be paid for his expenses under Section l(d) of
Article 26.05 whether the accused is put to trial.
.*
5. The attorney nay receive up to $250.00
for expenses for each case which arises out of a
separate and distinct fact situatdron and which re-
quires separate tivsstigation and testimony.
6. Appointed counsel Isentitled to compen-
satlon only once per day irrespective of whether he
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1. .
Honorable Joe Reswebdr, page 6 (C-713)
nay represent ssveral dirrsr4nt d4f6ndMtB In
several dlffer4nt courts.
7.. A nunc pro.tunc entry of an order of
the trial judge may b4 made to reflect that payment
of fees in excess of the minimum was properly ordered
within five d4ys of the judgment. If the trial
judge did not, within five days of the judgment,
order nor-e than the minimum fee, an entry of an
order nunc pro tune would not be proper.
Yours very truly,
WAGGonERCARR
Attorney General of Texas
lln sulli.Ym
Assistant Attorney General
BS/pw
APPRGVRB
OPIRIOR COMrqTRE
w~ov&s-P4P~t;~ C&e=-
Robert E. Owen
Sam galley
Malcolm Quick
LarryCraddock
APPROVRBl%RTRRATTORR&YGERRRAL
By: T. B. Wright
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