The Honorable W. G. Woods, Jr. Opinion No. H- 298
Distri,ct Attorney
Chamberr County Re: Appointment of counsel
P. 0. Bcw 431 to represent indigent
Liberty, Texas 77575 defendants, their fee6
and related questions.
Dear Mr. Woods:
You have asked us several questions concerning the appointment
and compensation of counsel to represent indigent defendants. Your
first question ir:
“1. Is it necessary f&r the attorney appointed
by the court to represent an indigent d&fendant to
be in the courtroom at the time of his appointment? I’
There is no general strtute governing the procedure for the appoint-
ment of counsel. Article 26.04, Vernodr Texas Code of Criminal Pro-
cedure. provides for such.appointment at or prior to”arraignment when
the defendant is too poor to employ counsel. Otherwise, the right to
counsel has developed in ~mrious interpretations of the Sikth Amendment
to the Constitution of thenUnited States. Gideon v. Wainwright, 372 U.S.
335 (1963); Escobedo v. Illinois, 378 U.S. 478 (1964); Pointer v. Texas,
380 U.S. 400 (19661;Swan&n v. Borler, 386 U.S. 258 (1967); Mempa v.
Rh&h, 389 U.S. 128 (1967); Argersinger v. Hamlin, 407 U.S. 25 (1972).
Payment of counsel is governed by Article 26.05 of the Code of
Criminal Procedure which, after itm latest amendment in 1973. now pro-
vides:
“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 prorecution was instituted or
habear corpur hearing held, awording to the following
rchedule:
p. 1384
.
. ,
The Honorable W. CL Woods, Jr., page 2 W29g)
“(a) For each day or a fractional part thereof in
court representing the accused, a reasonable fee to
be set by fhe court but ia no event to be leas &an $50;
‘l(b) For each day in court representing the accured
in a capital case, a reasonable fee to be ret by the court
but in no event to be less than $250;
‘l(e) For each day or a fractional psrt thereof in
court representing the indigent in.a habeas corpus
hearing, l~r ea io na b le
fee to be set by the court but
in no event to be lesr than $50;
l’(d) For expenree incurred for purporer of inveati-
g.ation and expert testimony, a reasonable fee to be set
by’the kourt but in no event to exceed $500;,
“(e) For’the prosecution to a final conclusion of
a bona fide appeal to the Court of Criminal Appeals,
a reasonable fee to be set by the court but in no event
to be less than $350;
‘l(f) For the prosecution to a final conclusion of
a bona 5de appeal to the Court of Criminal Appeals
in a case where jhe de&h peaalty bar been assessed,
a ru~onable fee to be set by the court but in no event
to be less than $500.
“Sec. 2. The minimum &e will be automatically
allowed unless the trial judge orders more within
five days of the judgment.
“Sec. All payments made under the provisions
3.
of this Article may. be included as costs safcourt.
“Sec. 4. An attorney may not receive more than
one fee for eachday in cou& regardlerr of tbe nuqxber
of cases in which he appeara as appointed counsel on the
Earn* day; ”
p. 1385
,. ,
The Honorable W. G. Woodr, Jr., page 3 (H-298)
There ir no requirement in the cases or the rtatutes that an attorney
ba present in the courtroom at the time he ir appointed counsel for an
indigent defendant. We therefore armwer your first question in the negative.
Your other three questions, dealing with the fees to be paid appointed
counsel, ask:
“2. Where the court appoint6 an attorney to
represent an indigent.defendant in all cameo, againrt
whom there are multiple indictments pending, and
the defandant enters a plea of guilty on all casem
or just on some of them and the State dismisses
others, but all cases are disposed of before the court
during one day, or a fraction of one day, is that
attorney entitled to at least &a minimum fee of $50.00
.par case on s cases?
“3. Where the attorney &at the court appoints
to represent an indigent defendant was already prerent
in the courtroom on other businers and is appointed by
the court and the case ia disposed of at a later date,
would the appointmeat of the attorn,ey by the court in
the courtroom in itself be considered as a compensabla
day under Art. 26.05, 5 1 (a), provided nothing further
warn done by the attorney other than his announcement
to the court that he would not waive his ten days allowed
to prepare for trial as provided in Ari. 26.04(b), C. C. P. 7
“4, Whera the attorney appointed by the court to
repreaent an indigent defendant was ~ already in the
courtrohn, but was called to the courtroom by the Judge,
or undsr his direction, would the appointment of the
attorney by the court in tha courtroom be in itself con-
ridered,ar a compensable day under Art. 26.05, 5 I(a),
provided nothing further was done by the attorney other
than saying he would not waive his ten dayo allowed to
prepare for trial as provided in Art. 26.04 (b). Texas
Penal Code? ”
p. 1386
’
. I
The Honorable W. G. Woodr, Jr., page 4 (H-298)
In our opinion, Sec. 4 of Article 26.05 quoted above ,anawere
your second question. Regardleas of the number of caaea pending
against the indigent defendant, if all are disposed of in one day, the
appointed attorney may not receive more than one fee - “a reas,on-
able fee to be set by the court but in no svent to bs less than $50.”
And ace Attorney General Opinion C-639 (1966).
Your third and fourth questions , in effect, ask whether there
is dome minimum amount of time or work which counsel must perform
before he is entitled to the foe provided for by Sot. I(a) of Art. 26.05.
We think not. The fees of Article 26.05 are far lane than an attorney
would normally charge a client. Studiem conducted by the State Bar
of Texas in rho 1960’s led to the conclusion in 1968 that a lawyer in
private practice, bearing all the expenaer of maintaining an office,
would have to charge a minimum fee of $40.00 per hour. The Minimum
Fee Schedule adopted by the Stats Bar of Texas in 1968 recommended
a minimum fee of $250 for each day of trial of a civil cane in a district
court. It ir apparent, then, that the minimum fee of $50 per day pro-
vided by Art. 26.05 ir well below the recommended daily trial fee.
The amendment* to Sec. 1, enacted in 1973 (Actr 1973, 63rd Leg., ch. 426,
p. 1126) by making tho fee .payable for a fractional part of a day eeemr
to recogniz,e that fact.
We are not preparid to ray that. an appointed ‘altorney who appcarr
jn cour,t to represent his client, even though he was already present on
other business, is not entitled to a fee. The act of appointment by
Itself might not be a “day or a fractional part hereof in court rep
resenting the accused, ” but, on thu other hand, it could involve l;hh+
r-wpl.nditure of time in consulting with the accused as wou1.d the announce-
men! lo the court that the accured would not waive (he time allowed for
trial. ,,:
In Attorney Generals Opinion C-639 (1966) it wan raid:
“It is the opinion of thir office that a court
lppoi.nted attorney. ,entitled to receive compenaa-
tion under the provirionr of Article 26.05, is
entitled to the feer li sled therei.n, regardlear of
the fact that his appearance may have been only
for a portion of a day.
p. 1387
. .
The Honorable W. G. Woodl, Jr., page 5 (H-298)
“You are further 8dvircd th8t it io the opinion
of thia office th8t l8ld attorney ir entitlbd to raid
compenation for each day in trial court reprelent-
ing the accused, whether for the purpore of arraign-
ment, anrwering docket call, for purposer of tkial
or for 8ny other wrae8r;Lnce in tii81 court reprcrent-
ing the 8ccured. ”
E8ch caee will have to depend on its own facto. However, if an
appointed counrel 8pp88r8 in Court in hir C8p8City 8II repreaent8ti’Ve for
the indigent defendant he ie entitled to hir rtatutory compensation. There
8re no crlteri8 by which to determine what ia 8d whrt ir not enough
representation and any other rule would ‘fly in the teeth of the statute.
SUMMARY
It is not necemruy thrt counsel b? phyrically
prerent in court rt the time of hi6 8ppointment to
reprerent anindigent defendmt. He ir entitled to
hia rt8tutory fee any time he rpendr even a fractional
prrt of 8 &y reprerenting m indigent client, but he
ir not entitled to be prid more tb8n one much fee for
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OPI dry.
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Very truly yoprr,
Attorney Caner81 of Texas
k. YOIdK. Fiirtkrrirtnnt
‘- 1 \
XEND
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1388
Untitled Texas Attorney General Opinion
Combined Opinion