The Honorable W. G. Woods, Jr. Distri,ct Attorney Chamberr County P. 0. Bcw 431 Liberty, Texas 77575 Dear Mr. Woods: Opinion No. H- 298 Re: Appointment of counsel to represent indigent defendants, their fee6 and related questions.

You have asked us several questions concerning theappointment and compensation of counsel to represent indigent defendants. 

### Your first question ir:

“1. Is it necessary f&r the attorney appointed by the court 

### to represent 

### an indigent d&fendant to be in the courtroom atthe time of his appointment? I’ There is no general strtute governing theprocedure for the

### appointment of counsel. Article 26.04, Vernodr Texas Code of Criminal Procedure. provides **for** 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 of then United States. Gideon v. Wainwright, 372U.S. 335 (1963); Escobedo v. Illinois, 378U.S. 478 (1964); Pointer v. Texas, 380U.S. 400 (19661; Swan&n v. Borler, 386U.S. 258 (1967); **Mempa** v. Rh&h, 389U.S. 128(1967); Argersinger v. Hamlin, 407U.S. 25 (1972). Payment of counsel is governed by Article 26.05 of the Code of Criminal Procedure which, after itm latest amendment in 1973. nowprovides: “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 thegeneral fund of the county in which theprorecution was instituted or habear **corpur** hearing held, 

### awording to the following rchedule: p. 1384.

. ,

The Honorable W. CLWoods, Jr., page 2 W29g)

“(a) For each day **or** a fractional 

### partthereof **in** court representing theaccused, a reasonable fee to be set by fhe court but ia no event to be leas &an $50;

‘l(b) For each day 

### in court representing theaccured in a capital case, a reasonable fee tobe retby the court but in no event to 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 thecourt but in no event to be lesr than $50; l’(d) **For expenree**  incurred for purporer ofinveatig.ationand expert testimony, a reasonable fee tobe 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,** a 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 butin 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 

### ofthejudgment. “Sec. 3. All payments made 

### under theprovisions of this Article may. be included as costs saf court. “Sec. 4. An attorney may not receive more than one fee for eachday in cou& regardlerr oftbe nuqxber 

### of cases inwhich he 

### appearaas appointed counsel **on** the 

### Earn* day; ”

p. 1385,. ,

The Honorable W. G. Woodr, Jr., page 3 **(H-298)**

There ir no requirement in the cases or the rtatutes that 

### an attorney 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 of guilty onall casem orjust on some ofthem and theState dismisses others, but all cases **are** disposed **of** before the court during **one** 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 theattorney &at the court appoints to represent **an** indigent defendant

### was already prerent in the courtroom on other businers and is appointed by the court and thecase ia disposed of

### at a **later date,**  would theappointmeat 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 

### warndone by

### the attorney other than his announcement to the court thathe would notwaive his ten days allowed toprepare for trial as provided in **Ari.** 26.04(b), C.C. P. 7 “4, Whera theattorney appointed by the court to repreaent an indigent 

### defendant was ~ already in the courtrohn, butwas called to thecourtroom by theJudge, or undsr his direction, would theappointment of the attorney by the court in tha courtroom **be** in itself conridered,ar a compensable **day** under Art. 26.05, 5 I(a), provided nothingfurther was done by theattorney 

### other than **saying** he would notwaive his tendayo allowed to prepare for trial as provided in **Art.** 26.04 (b). Texas Penal Code?”

p. 1386’

. I

The Honorable W. G. Woodr, Jr., page 4 (H-298)

In our opinion, Sec. 4 of Article 26.05 quoted above ,anawere your second question. **Regardleas** ofthe number of caaea pending against the indigent defendant, if all are disposed of in one day, the appointed attorney **may** not receive more than one fee - “a reas,onable fee tobe set by the court but in no svent tobs 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 oftime 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 ofArticle 26.05 are far lane than an attorney 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 ofmaintaining an office, would have to charge a minimum fee of $40.00 per hour. The Minimum Fee Schedule adopted by theStats Bar of Texas in 1968recommended a minimum **fee** of $250 for each day of trial ofa civil cane in a district court. It ir apparent, then, thattheminimum fee of $50per day provided 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 a

### fractional part of a day eeemr to recogniz,e that fact. We are notpreparid to ray that.an appointed ‘altorney who appcarr jn cour,t torepresent his client, even thoughhe was already present on other business, is not entitled toa fee. The act of appointment by Itself might not be a “day or a fractional part hereof in court rep resenting the accused, ” but, onthuother hand, it could involve l;hh+ r-wpl.nditure **of** time in consulting with the accused as wou1.dthe announcemen! lo thecourt that theaccured would notwaive (he time allowed for trial. ,,: In Attorney Generals Opinion C-639 (1966)it wan raid:

“It is the opinion ofthir office that a court 

## l ppoi.nted

### attorney. ,entitled to receive compenaation under the provirionr ofArticle 26.05, is entitled to the feer lisled therei.n, regardlear of the fact thathis appearance may have been only for a portion of a day.

p. 1387. .
The Honorable W. G. Woodl, Jr., page 5 (H-298)

“You 

### are **further** 8dvircd th8tit io the opinion ofthia office th8t l 8ld

### attorney ir entitlbd to **raid** compenation 

### for each day in trial court reprelenting the accused, whether for the 

### purporeof arraignment, **anrwering docket**  call, for purposer of tkial or for 8ny other wrae8r;Lncein tii81 court 

### reprcrenting the 8ccured. ” E8ch caee will have to depend onits own facto. **However,** if an appointed counrel 8pp88r8 in Court in hir C8p8City8II repreaent8ti’Ve for the indigent defendant he ie entitled tohir rtatutory compensation. **There** 8re no crlteri8 by which to determine what ia 8d whrt ir notenough representation and any 

### otherrule would ‘flyin theteeth of the statute. SUMMARY It is not **necemruy** thrt counsel **b?** phyrically prerent in court rt thetime of hi6

### 8ppointment to 

### reprerent anindigent defendmt. He ir entitled to hia rt8tutory fee any time he rpendr even a fractional prrt of 8 &y reprerenting m indigent client, but he ir not entitled to be prid more tb8none muchfee for

- 8lly OPI dry. .---- -.. -. ~_ ~..-- ..,.. -... ._.. -,- ._ --- .-~. . Very truly 

### yoprr,

Attorney Caner81 of Texas

k. YOIdK. Fiirtkrrirtnnt 

# ‘- 1 \
DAVID M. KENDALL,

XEND Chairman Opinion Committee
p. 1388