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 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 to represent an 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 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, 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 of counsel is governed by Article 26.05 of the Code of 

Criminal Procedure which, after itm latest amendment in 1973. now 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 prorecution was instituted or 

habear corpur hearing held, awording to the following 

rchedule: 

p. 1384 
. 

. , 

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 court 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 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 ~r ea io nfee a to b lbe e set by the court but 

in no event to be lesr than $50; 

l’(d) For expenree incurred for purporer of inveatig.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, 

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 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 

one fee for eachday in cou& regardlerr of tbe nuqxber 

of cases in which he appeara as 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 on all casem 

or just on some of them and the State 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 the attorney &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 the case ia disposed of at a 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 

to 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 conridered,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 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 of the 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 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 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 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 fee 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 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 not preparid to ray that. an 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 of time in consulting with the accused as wou1.d the announcemen! 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 court 

l ppoi.nted attorney. ,entitled to receive compenaation under the provirionr of Article 26.05, is 

entitled to the feer li sled therei.n, regardlear of 

the fact that his 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 th8t it io the opinion 

of thia office th8t l 8ld attorney ir entitlbd to raid 

compenation for each day in trial court reprelenting the accused, whether for the purpore of arraignment, anrwering docket call, for purposer of tkial 

or for 8ny other wrae8r;Lnce in tii81 court reprcrenting 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 

prerent in court rt the time 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 tb8n one much fee for 

- 8lly OPI dry. 

.---- -.. -. ~_ ~..-- ..,.. -... ._.. -,- ._ --- .-~. . 

Very truly yoprr, 

Attorney Caner81 of Texas 

k. YOIdK. Fiirtkrrirtnnt 

‘- 1 \ 

DAVID M. KENDALL, XEND Chairman 

Opinion Committee 

p. 1388