- .
THE ATTQRNEY GENERAL
OF TEXAS
Honorable Crawford Parker, Jr. Opinion AO. c-639
County Attorney
Panola County Re: What the words "each day"
Carthage, Texas mean as used in Article
26.05, Sec. l(a) of the
new Texas Code of Crimi-
Dear Sir: nal Procedure.
In your opinion request you ask for our interpretation
of "each day" as such term is used in Article 26.05,'Section
l(a), 1966 Code of Criminal Procedure,which provides:
"For each day in trial court representing
the accused, a fee of not less than $25.00
nor more than $50.00."
You state that the Commissioners'Court in Panola
County, and other commissionerscourts in that area of Texas,
construe "a day" to mean sixteen hours. Thus, it is implied,
if a court appointed attorney spends four hours in court rep-
resenting his client, he would be entitled to four-sixteenths,
or one-fourth of the compensationas set forth in Article
26.05.
In Dallas County v. Reynolds, 199 S.W. 702 (Tex.Civ.
App. 1918, no writ history), the Court construed Chapter 64,
Acts of the 32nd Legislature,page 107, which provided:
provided the same shall be reasonably suffic
cient as compensationfor such service, and in
no event shall it be less than forty cents per
day for each prisoner, nor more than fifty
cents for each prisoner per day." (Rmphasis
added.)
In that case there was no controversyas to the facts.
The Court said:
"It seems that in the instant case the
county auditor required that a record be kept
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Honorable Crawford Parker, Jr., page 2 (c-639)
of the fractionalpart of the day, when only
a part of a day was consumed in keeping a
prisoner, in some instances to the hour, al-
lowing the sheriff only l-2/3 cents per hour.
By this method it might arise that if a pris-
oner was received In the morning, say at 7
o'clock, and dischargedat 2 o(clock the same
day, after two meals were given, and all the
trouble engenderedfor receiving,keeping,
and discharginghim, the sheriff would only
receive about 12 cents, which would in no
respect begin to compensatehim for his trou-
ble in keeping, supporting,and maintaining
him. When the contract was made for the pay
of the sheriff for such services, there was
nothing said about a division of a day's time,
and our decisions holding that when a day is
so expressed it is to be construed to mean
the time elapsing between midnight and mid-
night, we will so construe it. . . ."
The effect of this holding is that the term 'day" in
the statute meant day or fraction thereo?, and the holding
was that the sheriff was entitled to full compensationfor
the maintenanceof a prisoner even though the prisoner was
in custody only a part of a day.
It is the opinion of this office that a court appointed
attorney, entitled to receive compensationunder the provisions
of Article 26.05, is entitled to the Sees listed therein, re-
gardless of the fact that his appearancemay have been only
for a portion of a day.
You are further advised that it is the opinion of this
office that said attorney is entitled to said compensation
for each day in trial court representingthe accused, whether
for the purpose of arraignment,answering docket call, for
purposes of trial or for any other appearance in trial court
representingthe accused.
your attention is invited to Article 26.05, Section
4 which provides:
"An attorney may not receive more than one
fee for each day fincourt, regardless of then
number of cases in which he appears as ap-
pointed counsel on the same day."
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Honorable Crawford Parker, Jr., page 3 (c-639)
This office haspreviously held that this provision lim-
its the compensationwhich an attorney may receive to one ap-
pearance in court on one day, regardless of the number of de-
fendants which he may represent during this one day period.
The Reynolds.casefurther states:
"As a general rule the term 'day,' as used
in legislativeenactments or in contracts,
means the whole 24 hours, that is, from mid-
night to midnight; especiallyIs this the rule
in reference to official services, except where
it is in some way restricted or limited. 0'
Connor v. Towns, 1 TexZL.07;Speer v. State,~2
Tex.App. 246; Haines v. State, 7 Tex.App. 30;
Janks v. State, 29 Tex.App. 233, 15 S.W.815;
Linhart v. State, 33 Tex.Cr.R. 507, 27 S.W.
260; Muckenfuss v. State, 55 Tex.Cr.R. 229,
116 S.W. 51, 20 L.R.A. (KS.) 783, 31 Am-St.
Rep. 813, 16 Ann. Cas. 768; Jones v. State, 32
Tex.Cr.R. 5 4, 25 S.W. 124; Denver v..Pearce,
13 ~010. 382 , 22 Pac. 774, 6 L.R.A. 541; Miner
v. Goodyear,Co.,62 conn. 410, 26 Atl. 643; In
re Senate Res., 9 Colo. 628, 21 Pac..475; Cos-
griff v. Commissioners,151 Cal. 407, 91 Pac.
98; 13 cyc. 263; 38 cyc. 314, i3 6. Many more
authoritiesmight be cited,from other states,
but we deem it unnecessary to do so.
"In Speer v. State, supra, the court in its
opinion says:
"'We know no rule of law or legal mode of
computing time by which we would be warranted
in holding that parts of two days make a day.'
"In O'Connor v. Towns, supra, the court
quotes from Lester v. Garland, 15 Ves. 246,
as follows:
"hour law rejects the fractions of a day
more.generally than the civil law does, The
effect is to render the day a sort of indi-
visible point, so that any act done In that
compass of it, is not referable to any one
Honorable Crawford Parker, Jr., page 4 (c-639)
rather than to every other portion of it, but
the act and the day are coextensive,and there-
fore cannot be properly said to be passed until
the day is passed.'
"In Janks v. State, supra, th,ecourt said:
"'The word "day," as used in article 178 of
the Penal Code,includes the time elapsing from
12 o'clock midnight to the succeeding one,'
"In Linhart v. State, supra, the court, in
discussing the time when a person becomes of
age, used the following language:
"'It is to be observed that a person be-
comes of age on the first instant of the last
day of the twenty-firstyear next before the
anniversary of his birth. Thus, If a person
were born at any hour of the 1st day of Janu-
ary, A.D. 1.801 (even a few moments before 12
o'clock at night of that day), he would be of
full age at the first instant of the 3lst of
December, 1821, although nearly forty-eight
hours before he had actually attained the full
age of twenty-one,according to years, days,
hours and minutes, because there is not in
law, inthis respect, any fraction of a day,
and it is the same whether a thing is done
upon one moment of a day or another.'
"Judge Davidson, in his opinion in the case
of Muckenfuss v. State, supra, discussed the
meaning of the word 'days' in a Texas statute.
In that case the opinion turned on the mean-
ing of the word 'day* in article 302, Penal
Code of Texas, which Inhibits,under certain
conditions, certain public amusements on Sun-
day- In this decision Judge Davidson said:
"'"Sunday"as used in this statute, means
the entire day; that is, from midnight Sat-
urday night until midnight Sunday. It in-
cludes twenty-fourhours. Such has been the
constructionof '!dag'!in all the decisions of
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Honorable Crawford Parker, Jr., page 5 (C-639)
this state where simply a 'day" is men-
tioned. * + * It is unnecessaryto cite au-
thorities,we think, in Texas to sustain
these positions.'~
"In Miner v. Goodyear, etc., supra, the
court also construed the meaning of the word
'day' as same was used in a statute. In that
opinion the court used this language:
"'The current,of authoritiesis substan-
tially unvarying to the effect that when the
word "day" is used in a statute or in a con-
tract, it will, unless it is in some way
restricted,be held to mean the whole twenty-
four hours.'
"A part of the text in Cyc. vol. 13 ,p.
263, cited above, is:
~'As used in a statute nor in a contract
twenty-four hours and not merely the day ai
popularly understood from sunrise to sunset,
or during the time the light of the sun is
visible.'.
"A nart.of the text In Csc. vol. 38. D.
314, a;ldin section 6, under the titie- ^
'Day,' is:
"'It may be stated generally that in the
computation of a period of time measured in
days and in the~constructionof the word
"day" as used in a cbntract or.statute,the
law adopts as the unit of measurement the
period of.twenty-fourhours extending from
midnight to midnight.'
"In Smith v. Commissioners,10 Colo. 17,
13 Pac. 917,.in construing the statute read-
ing as follows: 'For the time necessarily
spent in the discharge of his duty he shall
receive $5.00 Peruday,' etc., the court said:
"'Inthis connection counsel for the ap-
pellee asks for an opinion "as to what length
of time will constitute a day's service for
the superintendent."We answer, the law does
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Honorable Crawford Parker, Jr., page 6 (c-639)
not recognize fractions of days; and when it
provides a per diem compensationfor the time
necessarily devoted to the duties of an of-
fice, the officer is entitled to this daily
compensationfor each day on which it be-
comes necessary for him to perform any sub-
stantial official service, if he does
perform the same, regardlessof the time oc-
cupied in its performance.'
"On account of necessity and for public
convenience and in order to avoid disputes,
the law rejects fractionalparts of a day.
Long's,Appeal, 23 Pa. 297; Miner v. Goodyear,
etc., 62 COM. 410, 26 Atl. 643; Cosgriff v.
Commissioners,151 cd. 407, 91 Pac. 98.
"In Long's Appeal supra, the court said:
"'It is a principle of the common law that
in judicial and other public proceedings
there are no fractions of a day, and that
all transactionsof the same day are, in ,.
general, regarded as occurring at the same
instant of time. This principle has been
establishedfrom necessity and from a regard
to public convenience.'
"A part of the language used by the court
in Cosgrlff v. Commissioners,supra, is:
"'The fractions of the days are no more
taken into considerationthan are the frac-
tions of the seconds. The consequenceis
that every day and every part of that day
is, by this rule, one day before every part
of the succeeding day. The last moment of
any day is, in contemplationof law in such
cases, one day before the first moment of
the next day, although the elapsed time is
infinitesimal. The rule is strictly one of
convenience. Any other method of computation
would require an accurate account to be kept
of the exact hour, minute, and second of the
occurrence of the act to be timed, and would
produce endless confusion and strife, and
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Honorable Crawford Parker, Jr., page 7 (C-639)
would prove impolitic, if not wholly imprac-
ticable.'
"It is contendedby appellant that to con-
strue a 'day' as used in the statute to mean
the time from midnight to midnight would, in
many cases, work an injustice. In reply it
might justly be said that in ~manyways it
might work an injustice to the sherlff,to
construe the statute as contended for by ap-
pellant."
The Re olds case was cited with approval in Tl ton v. Ti ton,
140 ?d%T65 (Tex.Civ.App 1940 error dismwf.
Long ;--City of Wichita Falis, l7& S.W.2d 936 (Tex.Sup.
It is our opinion, therefore, that a day consists of
the twenty-fourhour period from midnight to midnight. An
appearance at 2:3O p.m. in trial court on one calendar day
of the month and an appearance on the following calendar day
at 11:00 a.m. would constitute an appearance on two separate
days and the attorney would be entitled to receive compen-
sation for both days.
SUMMARY
An attorney, when entitled.tobe coiapen-
sated in accordance with Article 26.05, 1966
Code of Criminal Procedure, Is entitled to
this compensationregardless of whether he ap-
pears in trial court for a full day or a frac-
tional part thereof. Further, heris entitled
to this compensationfor each appearance in
trial court when representinghis client'. If
such attorney representsmore than one defend-
ant on the same day, he is entitled to compen-
sation only once on that day-~ A day is the
twenty-four, hour period from midnight to mid-
night.
Very truly yours,
WAGGORERCARR
Attorney General of Texas
By:
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Honorable Crawford Parker, Jr., page 8 (C-639)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard M. Fender
Charles B. Swarmer
Phlllip Crawford
El.Grady Chandler
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
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