Untitled Texas Attorney General Opinion ( 1987 )

. .
Flonorable Travis S. Ware Opinion No. .ni-739
Criminal District Attorney
P. 0. Box 10536 Re: Whether au attorney appointed
Lubbock, Texas 79408 by a justice of the peace to re-
present an indigent is entitled to
compensation if he does not appear
in court, and related questions
Dear Mr. Ware:
You ask the following questions:
1. Is an attorney appointed by a justice of
the peace for an indigent defendant entitled to
compensation if he does not appear in court?
2. Does article 26.05, section l(d). of. the
Code of Criminal Procedure allow for compensation
to an attorney appointed by a justice of the peace
for research and Investigation that the attorney
does on a case for an indigent defendant that is
not time spent in court?
3. Is an arraignment a court appearance that
is to be compensated under article 26.05 of the
Code of Criminal Procedure?
Article 26.05 of the Code of Criminal Procedure provides:
section 1. A counsel appointed to defend a
person accused of a felony or a misdemeanor
punishable by imprisoment, or to represent an
indigent in a habeas corpus hearing, shall be paid
from the general fund of the county in which the
prosecution was instituted or habeas corpus
.hearing held. according to the following schedule:
(a) For each day or a fractional part thereof
in court representing the accused, a reasonable
fee to be set by the court but in no event to be
less than $50;
(b) For each day in court representing the
accused in a capital case, a reasonable fee to be
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Honorable Travis S. Ware - Page 2 (a-739)
- .
set by the court but in no event to be less than
$250;
(c)
For each day or a fractional part thereof
in court representing the indigent in a habeas
corpus hearing, a reasonable fee to be set by the
court but in no event to be less than $50;
(d) For expenses incurred for purposes of
investigation and expert testimony, a reasonable
fee to be set by the court but in no event to
exceed $500;
(e) For the prosecution co a final conclusion
of a bona fide appeal to a court of appeals or the
Court of Criminal Appeals, a reasonable fee to be
set by the court but in no event to be less than
$350;
(f) For the prosecution to a final conclusion
of a bona fide appeal to the Court of Criminal
Appeals in a case where the death penalty has been
assessed, a reasonable fee to be set by the court
but in no event to be less than $500.
Sec. 2. The minimum fee will be automatically
allowed unless the trial judge orders more within
five days of the judgment.
Sec. 3. All payments made under the provisions
of this Article may be included as costs of court.
Sec. 4. An attorney may not receive more than
one fee for each day in court, regardless of the
number of cases in which he appears as appointed
counsel on the same day. (Emphasis supplied).
In Attorney General Opinion E-909 (1976) it was stated:
In Attorney General Opinion E-789 (1976). we
said that a court-appointed attorney may not be
compensated under article 26.05 if he does not
gpear in court. Once he appears in court, the
judge must set a reasonable fee for each day or
fraction thereof in court. The statute does not
state the factors which the judge may consider in
setting the fee. but leaves him considerable
discretion to value the attorney’s respresentation
[sic] of the accused. (Emphasis supplied).
We assume that your question does not relate to appointment of an
attorney to represent a defendant on a trial on its merits in justice
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Eonorable Travis S. Ware - Page 3 (JM-739)
court since the jurisdiction of the justice court in criminal matters
is limited to cases where the punishment is by fine only. Tex. Const.
art. V, 519. In Attorney General Opinion C-654 (1966) it was noted
that article 2.09 of the Code of Criminal Procedure designates
justices of the peace as magistrates and in such capacity “way appoint
counsel to represent an accused in an examining trial held by him
only . ” It is our opinion that appointed counsel is not entitled to
compensation if he does not appear in court.
Your second question relates to compensation of counsel under
section l(d) of article 26.05 for research and investigation that does
not constitute “time spent in court.”
In Attorney General Opinion H-909 (1976) it was concluded:
A fee awarded under article 25.06, section l(a),
Code of Criminal Procedure, is not inherently
unreasonable because the court considered time
spent ou legal research and investigation in
establishing it.
See also Attorney General Opinion JM-537 (1986).
Thus, in setting a’fee for each day an attorney appears in
court under section l(a) of article 26.05, it is not inherently
unreasonable for the court to consider time spent on research and
investigation in connection with the case.
In reviewing your question regarding whether an arraignment is a
court appearance under article 26.05 we first must determine what
transpires at an arraignment. Because you have asked about attorneys
appointed by justices of the peace. we note that justices of the peace
do not conduct arraignments. In Wood v. State, 515 S.W.2d 300, 303
(Tex. Crib. App. 1974). it was stated:
The purpose of arraignment is to read the indict-
ment to the accused, hear his plea thereto and fix
his identity, Article 26.02. Vernon’s Ann. C.C.P.,
and it usually is the point in the criminal
proceedings at which the trial court determines if
the accused has counsel and if appointment of
counsel is necessary. Therefore, unless arraign-
ment is waived, most careful trial judges make
every effort to see that arraignment occurs as
early in the proceedings as possible.
The time for holding an arraiguxent is governed by article 26.03
of the Code of Criminal Procedure, providing:
No arraignment shall take place until the
expiration of at least two entire days after the
day on which a copy of the indictment was served
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Ronorable Travis S. Ware - Page 4 (Jh-739)
on the defendant, unless the right to such copy or
to such delay be waived, or unless the defendant
is ou bail.
In Wood v. State, -. it was pointed out that an arraiguwent
is one of the proceedings that can be disposed of at a pre-trial
hearing. See Code Crix. Proc. art. 28.01. As heretofore noted,
counsel appointed to represent an indigent defendant is entitled to
his statutory fee for any time spent in court, even a fractional part
of a day. representing an indigent accused, however, he is not
entitled to be paid more than one such fee for any one day. Attorney
General Opinion E-298 (1974). We are of the opinion that when
appointed counsel appears in court on behalf of the defendant at an
arraignment he is making an appearance "in court representing the
accused" and is entitled to be compensated under article 26.05.
SUMMARY
Appointed counsel is not entitled to coxpensa-
tion under article 26.05 of the Code of Criminal
Procedure if he does not appear in court on behalf
of the accused. In setting a fee for each day or
fractional part thereof in court representing the
accused, a fee is not inherently unreasonable
because the court considered time spent by the
appointed attorney on legal research and investiga-
tion. Attorney General Opinion H-909 (1976). When
appointed counsel appears in court on behalf of the
defendant at an arraignment he is entitled to be
compensated under article 26.05 of the Code of
Criminal Procedure.
, Very/~c$&
JIM MATTOX
Attorney General of Texas
NARYXRLLXR
Executive Assistant Attorney General
JUDGEZOLLIE STEAlUEy
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 3442