Untitled Texas Attorney General Opinion ( 1976 )

The Honorable Gene neatly Opinion No. H-909
County Attorney
Wilbarger County Re: Compensation of
Vernon, Texas 76384 attorneys appointed to
represent indigents for
time spent on legal
research and investigation.
Dear Mr. Heatly:
You ask two questions about the provisions in article
26.05, Code of Criminal Procedure, for compensation of
counsel appointed to represent indigent defendants. Your
first question is:
Under Article 26.05, Sec. l(a) may the
Court take into consideration the number
of hours spent by an attorney on behalf
of his client on legal research and
investigation, both in and out of Court, in
awarding attorney's fees to compensate the
attorney?
In answering your first question, we assume that in referring
to hours spent on legal research and investigation in court
you mean any in-court services an attorney may perfZFm in
representing his client. Article 26.05, Code of Criminal
Procedure, provides:
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 prosecution was instituted or habeas
corpus hearing held, according to the following
schedule:
P. 3813
The Honorable Gene Heatly - page 2 (H-909)
(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 . . . .
In Attorney General Opinion H-789 (1976), we said that a
court-appointed attorney may not be compensated under article
26.05 if he does not appear 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 of the accused. Cf. Eggleston v. State,
422 S.W.2d 460 (Tex. Crim. APP. 1967). The iuds's deter-
mination carries a presumption of reasonableness, and if
the commissioners court objects to paying the fee, it has
the burden of showing that his action was so unreasonable,
arbitrary and capricious as to amount to an abuse of dis-
cretion. Commissioners Court of Lubbock County v. Martin,
471 S.W.Zd 100 (Tex. Civ. App. -- Amarillo 1971,Trit ref'd
n.r.e.1; Attorney General Opinion H-499 (1975): When asked
about the reasonableness of compensation awarded by a judge
who considered time spent on out-of-court preparation, we
determined in H-499 that its reasonableness was a fact question,
which we could not resolve. We do not believe that the fee
is inherently unreasonable because the judge considered out-
of-court preparation as one factor in valuing the court
appearance. Nor can we say that the court may not consider
the number of hours spent on in-court activities, so long
as the resulting fee is reasonable. The reasonableness of
any particular fee based on these or other considerations is,
of course, a question that we cannot resolve. See State
Bar of Texas, Rules and Code of Professional Responsibility,
DR 2-106(B). See generally Annot., 18 A.L.R. 3d 1074, 1104-
et seq. (1968).
-
Your second question is:
If an attorney billed himself and paid
himself for legal research and investiga-
tion done by the attorney on behalf of
his client, would such investigation and
legal resear,ch then constitute 'expenses
incurred for the purpose of investigation'
under Article 26.05, Sec. l(d)?
P. 3814
I
. . *
The Honorable Gene Heatly ; page 3 (H-909)
Section l(d) of article 26.05, Code of Criminal Procedure
provides compensation for appointed counsel:
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.
We said in Attorney General Opinion H-789 (19761 at 3 that
"subsection (cl)is limited in its application to the reimburse-
ment of expenses actually incurred by the attorney, and
cannot be extended to compensate him for his out-of-court
time." In Attorney General Opinion C-713 (1966) at 3, this
office said of article 26.05, section l(c), the predecessor
of section l(d), that "this provision is intended to reimburse
the attorney for money paid out for purposes of investigation
and expert testimony and is not to be construed as allowing
additional fees for service rendered to the indigent." Even
though an attorney bills and pays himself for legal research
and investigation, he still is seeking compensation for his
own out-of-court services for the defendant, not compensable
under article 26.05, section l(d). We answer your second
question in the negative.
SUMMARY
A fee awarded under article 26.05,
section l(a), Code of Criminal Procedure,
is not inherently unreasonable because
the court considered time spent on
legal research and investigation in
establishing it. Legal research and
investigation dohe by an attorney and
t
billed to himself is not compensable under
article 26.05, section l(d).
fiery truly yours,
Attorney General of Texas
P. 3815
The Honorable Gene Beatly - page 4 (H-909)
I
APROVED:
DAVID M.-KENDALL, First Assistant
C. ROBERT IfEATIi,Chaunnan
Opinion Committee
jwb
P- 3816