Untitled Texas Attorney General Opinion

EA Y GENERAL AUSTIN 1% -I?EXAS IWILL WIILSON AlTGRNEYGENERAt October 26, 1961 Honorable Oscar M. Laurel Opinion NO. ~~-1176 District Attorney Dimmit, Webb, Jim Hogg and Zapata Counties Re: Whether Section 1 of Laredo, Texas Article @4a, C.C.P. is mandatory or discretionary in its application in view of Section la having been repealed by Acts of the 56th Legislature and re- Dear Mr. Laurel: lated questions. You have requested an opinion on the following questions: "1. Whether Section 1 of Article &g&a, C.C.P. is mandatory or discretionary in its application in view of Section la having been repealed by Acts of the 1959, 56th Legislature. "2 . If the language of Section 1 of the Article is mandatory in its application so that the Commissioners Court is obli- gated to pay the amounts provided therein to defense counsel, then from what County funds should such payments be made." Article &&a is as follows: "Section 1. Whenever the court shall appoint one or more counsel(s) to defend any person or persons pursuant to law in any felony case in this State, each counsel may, at the discretion of the trial judge, be paid a fee in the sum of Twenty-five Dollars ($25) per day for each day such appointed attorney is actually in trial court representing the person he has been appointed to represent. Provided, further, that in all cases wherein a bona fide appeal is actually prosecuted to a final conclusion, each appointed counsel may be Hon. Oscar M. Laurel Page 2 Opinion No. ~~-1176 paid One Hundred Dollars ($100) for said appeal. Provided, however, on pleas of quilty before the court, said appointed counsel may be paid Ten Dollars ($10) per case. The fee allowed counsel shall be paid by the county wherein such trial is held and such sum to be paid from,county funds, where such funds are available. "Sec. 1A. Repealed. Acts 1959, 56th Leg., 2nd C.S., p. 147, ch, 31 52. "Sec. 2. No such allowance shall be made unless an affidavit is filed with the clerk of the court by the defendant showing that he is wholly destitute of means to provide counsel, and that he has not been released on bail bond. As amended Acts 1959, 56th Leg. 2nd C.S., p. 147 ch. 31 81." r The original 494s Vernon's Annotated Criminal Code was passed in 1951 by the 52nd Legislature. Section la therein provided: "The Commissioners Court of any county in the State may determine within its discretion whether or not such county shall pay the fees provided herein." Acts 52nd Leg., 1951, ch. 19, P. 25. In 1959 the Legislature rewrote what was the entire Chapter 19 of the 52nd Legislature (Article 494a). The changes written into the Act were: 1. Raising the fee from $10.00 to $25.00 per day in Section 1 and raising the fee on appeal from $25.00 to $100.00. 2. Adding the following sentence in Section 1: "Provided, however, on pleas of guilty before the court, said ap ointed counsel may be paid Ten Dollars (P 10) per case." 3. In Section 1 added the phrase: "where such funds are available" to the last sentence of Section 1 so that the sentence reads: Hon. Oscar M. Laurel Page 3 Opinion No. ~~-1176 "The fee allowed counsel shall be paid by the County wherein such trial is held and such sum to be paid from county funds, where such funds are available." 4. Section la was expressly repealed by Section 2 of the amended chapter as differentiated from the amended Section 2 of Article 494a, thus depriving the Com- missioners' Court of their former discretion. We conclude that the payment of the fees depends upon two factors: 1. The discretion of the trial judge as set out in Section 1 of @&a and 2. The availability of such funds as set out in the last sentence of Section 1 as amended. It would, therefore, appear that where the trial judge has ordered such payment and where the county has avail- able the money to pay the fee, such payment should be made. No other conclusion can be reached because the Legislature, by expressly repealing Section la, as set out above, has removed the matter from the discretion of the Commissioners' Court. SUMMARY Section 1 of Article &&a makes it manda- tory for the county to pay the fees therein provided when such fees are ordered by the trial judge and such funds are available to the county. Yours very truly, !jiEzLi;~ NVS:sh Assistant Attorn y General APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Vernon Teofan Gordan Cass W. Ray Scruggs REVIEWED FOR THE ATTORNEY GENERAL Ben Harrison BY: Houghton Brownlee, Jr.