Untitled Texas Attorney General Opinion ( 1961 )

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repealed by Acts of the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having been repealed by Acts of the 1959,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 Repealed.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.