Untitled Texas Attorney General Opinion ( 1967 )

‘ . 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. - 221 - 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.) - 222 - 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, - 223 -