Case Information
*1 The Honorable W. G. Woods, Jr. Opinion No. H- 298 Distri,ct Attorney
Chamberr County Re: Appointment of counsel P. 0. Bcw 431 to represent indigent Liberty, Texas 77575 defendants, their fee6
and related questions.
Dear Mr. Woods:
You have asked us several questions concerning the appointment and compensation of counsel to represent indigent defendants. Your first question ir:
“1. Is it necessary f&r the attorney appointed by the court represent indigent d&fendant to be in the courtroom at the time of his appointment? I’ There is no general strtute governing the procedure for the appoint- ment of counsel. Article 26.04, Vernodr Texas Code of Criminal Pro- cedure. provides such.appointment at or prior to”arraignment when the defendant is too poor to employ counsel. Otherwise, the right to counsel has developed in ~mrious interpretations of the Sikth Amendment to the Constitution then United States. Gideon v. Wainwright, 372 U.S. 335 (1963); Escobedo v. Illinois, 378 U.S. 478 (1964); Pointer v. Texas, 380 U.S. 400 (19661; Swan&n v. Borler, 386 U.S. 258 (1967); Mempa v. Rh&h, 389 U.S. 128 (1967); Argersinger v. Hamlin, 407 U.S. 25 (1972).
Payment counsel is governed by Article 26.05 of the Code of Criminal Procedure which, after itm latest amendment in 1973. now pro- vides:
“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 prorecution was instituted or habear corpur hearing held, awording to the following rchedule:
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The Honorable W. CL Woods, Jr., page 2 W29g)
“(a) For each day or a fractional part thereof in court representing the accused, a reasonable fee to be set by fhe but ia no event to be leas &an $50;
‘l(b) For each day in court representing the accured in a capital case, a reasonable fee to be ret by the court but in no event be less than $250;
‘l(e) For each day or a fractional psrt thereof in court representing the indigent in.a habeas corpus
hearing, l ~reaionable fee to be set by the court but in no event to be lesr than $50;
l’(d) For expenree incurred for purporer of inveati- g.ation and expert testimony, a reasonable fee to be set by’the kourt 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, reasonable fee to be set by the court but in no event
to be less than $350;
‘l(f) For the prosecution to a final conclusion of a bona 5de appeal to the Court of Criminal Appeals in a case where jhe de&h peaalty bar been assessed, a ru~onable fee to be set by the court but in no event to be less than $500.
“Sec. 2. The minimum &e 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 saf court.
“Sec. 4. An attorney may not receive more than for eachday in cou& regardlerr of tbe nuqxber cases in which he appeara as appointed counsel on the Earn* day; ”
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The Honorable W. G. Woodr, Jr., page 3
There ir no requirement in the cases or the rtatutes that an ba present in the courtroom at the time he ir appointed counsel for an indigent defendant. We therefore armwer your first question in the negative.
Your other three questions, dealing with the fees to be paid appointed counsel, ask:
“2. Where the court appoint6 an attorney to represent an indigent.defendant in all cameo, againrt whom there are multiple indictments pending, and the defandant enters a plea guilty on all casem or just on some of them and the State dismisses others, but all cases disposed before the court during day, or a fraction of one day, is that attorney entitled to at least &a minimum fee of $50.00 .par case on s cases?
“3. Where the attorney &at the court appoints to represent indigent defendant was already prerent in the courtroom on other businers and is appointed by the court and the case ia disposed of at later date, would the appointmeat of the attorn,ey by the court in the courtroom in itself be considered as a compensabla day under Art. 26.05, 5 1 (a), provided nothing further warn done by the attorney other than his announcement the court that he would not waive his ten days allowed to prepare for trial as provided in Ari. 26.04(b), C. C. P. 7 “4, Whera the attorney appointed by the court to repreaent an indigent defendant was ~ already in the courtrohn, but was called to the courtroom by the Judge, or undsr his direction, would the appointment of the attorney by the court in tha courtroom be in itself con- ridered,ar a compensable day under Art. 26.05, 5 I(a), provided nothing further was done by the attorney other than saying he would not waive his ten dayo allowed to prepare trial as provided in Art. 26.04 (b). Texas Penal Code? ”
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The Honorable W. G. Woodr, Jr., page 4
In our opinion, Sec. 4 of Article 26.05 quoted above ,anawere your second question. Regardleas of the number of caaea pending against the indigent defendant, if all disposed of in day, the appointed attorney may not receive more than one fee - “a reas,on- able fee to be set by the court but in no svent to bs less than $50.” And ace Attorney General Opinion C-639 (1966).
Your third and fourth questions , in effect, ask whether there is dome minimum amount of time or work which counsel must perform before he is entitled to the foe provided for by Sot. I(a) of Art. 26.05. We think not. The fees of Article 26.05 are far lane than an would normally charge a client. Studiem conducted by the State Bar of Texas in rho 1960’s led to the conclusion in 1968 that a lawyer in private practice, bearing all the expenaer of maintaining an office, would have to charge a minimum fee of $40.00 per hour. The Minimum Fee Schedule adopted by the Stats Bar of Texas in 1968 recommended a minimum of $250 for each day of trial of a civil cane in a district court. It ir apparent, then, that the minimum fee of $50 per day pro- vided by Art. 26.05 ir well below the recommended daily trial fee. The amendment* to Sec. 1, enacted in 1973 (Actr 1973, 63rd Leg., ch. 426, p. 1126) by making tho fee .payable for fractional part of a day eeemr to recogniz,e that fact.
We are not preparid to ray that. appointed ‘altorney who appcarr jn cour,t to represent his client, even though he was already present on other business, is not entitled to a fee. The act of appointment by Itself might not be a “day or a fractional part hereof in court rep resenting the accused, ” but, on thu other hand, it could involve l;hh+ r-wpl.nditure time in consulting with the accused as wou1.d the announce- men! lo the court that the accured would not waive (he time allowed for trial. ,,:
In Attorney Generals Opinion C-639 (1966) it wan raid: “It is the opinion of thir office that a l ppoi.nted attorney. ,entitled to receive compenaa- tion under the provirionr Article 26.05, is entitled to the feer li sled therei.n, regardlear of the fact that his appearance may have been only a portion of a day. *5 . The Honorable W. G. Woodl, Jr., page 5
“You further 8dvircd th8t it io the opinion of thia office th8t l 8ld ir entitlbd to raid
compenation for each day in trial court reprelent- for the purpore of arraign- ing the accused, whether ment, anrwering docket call, purposer tkial
or for 8ny other wrae8r;Lnce in tii81 court reprcrent- ing the 8ccured. ”
E8ch caee will have to depend on its own facto. However, if an appointed counrel 8pp88r8 in Court in hir C8p8City 8II repreaent8ti’Ve for the indigent defendant he ie entitled to hir rtatutory compensation. There 8re no crlteri8 by which to determine what ia 8d whrt ir not enough representation and any other rule would ‘fly in the teeth of the statute.
SUMMARY It is not necemruy thrt counsel b? phyrically rt the time of hi6 8ppointment prerent in to reprerent anindigent defendmt. He ir entitled to hia rt8tutory fee any time he rpendr even a fractional prrt 8 &y reprerenting m indigent client, but he ir not entitled to be prid more tb8n one much for 8lly OPI dry. - .---- -.. -. ~_ ~..-- ..,.. -... ._.. -,- ._ --- .-~. .
yoprr, Very truly yoprr, Very truly Attorney Caner81 Attorney Caner81 of Texas of Texas k. YOIdK. Fiirtkrrirtnnt
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DAVID M. XEND DAVID M. KENDALL, Chairman
Opinion Committee
p. 1388