Case Information
*1 March 3, 1976 opinion No. R-789 The Honorable George N. Rodriguez, Jr. County Attorney Re: Whether a'court- appointed attorney
El Paso County Room 201, City-County Building
El Pa8o, Texan 79901 for an indigent
defendant is entitled to compensation if he is not required to appear in court.
Dear Mr. Rodriguez:
You have requested our opinion regarding whether a court-appointed attorney an indigent defendant is entitled to compenration for him time from county funds under article Procedure, if not required to Texae code of Criminal 26.05, appear in court. Article 26.05 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:
(a) For each day or a fractional acoueed, a reasonable to set by the court but in no event ,to be less *2 . .
The Honorable George N. Rodriguez, Jr. - page 2 (H-789)
(b) For each day in court repre- senting the accused in a capital case, a reasonable to be set by the court but in no event to be less than $250;
(c) For each day or a fractional indigent in a habeas corpus hearing, a reasonable fee to be set by the court but in no event to be less than $50;
(6) For expenses incurred for purposes of investigation and expert testimony, a reasonable fee to be met by the court but in no event to exceed $500;
(e) For the prosecution to a final conclusion of a bona fide appeal to the Court of Criminal Appeals, a reasonable Lee to mot by the court but in no event to bm less
(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 met by the courtbut in no event to be less than $500.
The statute does not provide expressly for the payment of attorney's fees at the trial court level when there is no court appearance. While Attorney General Opinion C-713~ (19661, held that reimbursement is possible under article 26.05 for certain expenses incurred in preparation for a trial, even when the accused is not actually tried, it indicated that the appointed attorney would not receive a fee him services if the case were dismissed.
The language the statute itself supports this view. Subsectionm (a), (b) and (c) provide for payment of "a reasonable fee" based upon the appointed attorney's time in court. Subsections (e) and (f) provide for payment of a *3 .
. .
The sienorable George N. Rodriguez, Jr. - page 3 m-789) "reasonable fee" in cases on appeal. If the Legislature had intended to compensate the attorney for his non-courtroom time in cases in addition to those on appeal, it seemingly would have specifically so provided.
Furthermore, compensation for out-of-court time w0uia have to be made, if at all, pursuant to subsection (a), am wexpenmem incurred." "Expense" is defined am
[tlhat which is expended, laid out or consumed; an outlay; charge; cost; price,.
Black's Law Dictionary 687 (4th ed. 1951). We believe that subsection (d) is limited in its application to the reimbursement expenses actually incurred by the attorney, and cannot be extended to compensate him for his out-of-court time. Thus, it is our opinion &at under present a court-appointed attorney for an indigent at the statutes trial court level is not entitled to compensation if he does not appear in court.
SUMMARY Under present statutes, a court-appointed attorney an indigent defendant at the trial court level may not be compensated under article 26.05, Texas Code of Crim- inal Procedure, if the attorney does not appear in court.
Attorney General of Texas *4 , - The Honkable George N. Rodriguez, Jr. - page 4 (H-789) Opinion CoQmittea
p. 3327