Case Information
*1 . Flonorable Travis S. Ware Opinion No. .ni-739 Criminal District Attorney Re: Whether au attorney appointed
P. 0. Box 10536 79408 by a justice of the peace to re- Lubbock, Texas
present an indigent 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 the peace for an indigent defendant entitled if he does not appear in court?
2. Does article l(d). of. the Code of Criminal Procedure allow for compensation to an attorney appointed by a justice 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: 1. A counsel appointed to defend a
person accused of a felony or a misdemeanor punishable by imprisoment, or to represent an 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 the accused, fee to be set by the court but in no event to be less than
(b) For each day in court accused in a capital case, a reasonable *2 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 in the 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 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 a court of appeals or the Court of Criminal Appeals, a reasonable set by the court but in no event to be less than
(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 fee to be set by the court assessed, 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 General Opinion E-909 (1976)
In Attorney General Opinion E-789 (1976). we said that a court-appointed attorney may not be if he does not gpear in court. Once he appears in court, judge must set a reasonable for each day or fraction thereof in court. The statute does not state the factors which the judge may consider but leaves him considerable setting fee. 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 *3 (JM-739) Eonorable Travis S. Ware - Page 3
court since the jurisdiction of the justice in criminal matters is limited to cases where the punishment is by fine only. Tex. Const. In Attorney General Opinion C-654 (1966) it was noted art. V, 519. that article 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 if he does not appear in court.
Your second question relates to compensation of counsel under 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, l(a), Code of Criminal Procedure, inherently unreasonable the court
spent ou legal research and investigation in establishing it.
See also Attorney General Opinion JM-537 (1986). in setting a’fee for each day an attorney appears in Thus,
court under section l(a) of article it is not for to consider time spent on research and 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 do not conduct arraignments. In Wood v. State, 515 S.W.2d 300, 303 (Tex. Crib. App. 1974).
The purpose of arraignment is to read the indict- ment 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 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 of the Code of Criminal Procedure, providing:
No arraignment shall take place until expiration of at least two entire days after day on which a copy of the indictment was served *4 Ronorable Travis S. Ware - Page 4 (Jh-739)
on the defendant, unless the right 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 See Code Crix. Proc. art. 28.01. As heretofore noted, hearing. counsel appointed to represent an indigent defendant 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 accused" and is entitled to be compensated under article 26.05.
SUMMARY Appointed counsel 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
accused, a 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 the Code of Criminal Procedure.
, Very/~c$& JIM MATTOX General of Texas NARY XRLLXR
Executive Assistant Attorney General
JUDGE ZOLLIE STEAlUEy
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General