- . 

THE ATTQRNEY GENERAL 

OF TEXAS 

Honorable Crawford Parker, Jr. Opinion AO. c-639 

County Attorney 

Panola County Re: What the words "each day" 

Carthage, Texas mean as used in Article 

26.05, Sec. l(a) of the 

new Texas Code of CrimiDear Sir: nal Procedure. 

In your opinion request you ask for our interpretation 

of "each day" as such term is used in Article 26.05,'Section 

l(a), 1966 Code of Criminal Procedure, which provides: 

"For each day in trial court representing 

the accused, a fee of not less than $25.00 

nor more than $50.00." 

You state that the Commissioners' Court in Panola 

County, and other commissioners courts in that area of Texas, 

construe "a day" to mean sixteen hours. Thus, it is implied, 

if a court appointed attorney spends four hours in court representing his client, he would be entitled to four-sixteenths, 

or one-fourth of the compensation as set forth in Article 

26.05. 

In Dallas County v. Reynolds, 199 S.W. 702 (Tex.Civ. 

App. 1918, no writ history), the Court construed Chapter 64, 

Acts of the 32nd Legislature, page 107, which provided: 

provided the same shall be reasonably suffic 

cient as compensation for such service, and in 

no event shall it be less than forty cents per 

day for each prisoner, nor more than fifty 

cents for each prisoner per day." (Rmphasis 

added.) 

In that case there was no controversy as to the facts. 

The Court said: 

"It seems that in the instant case the 

county auditor required that a record be kept 

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. . 

Honorable Crawford Parker, Jr., page 2 (c-639) 

of the fractional part of the day, when only 

a part of a day was consumed in keeping a 

prisoner, in some instances to the hour, allowing the sheriff only l-2/3 cents per hour. 

By this method it might arise that if a prisoner was received In the morning, say at 7 

o'clock, and discharged at 2 o(clock the same 

day, after two meals were given, and all the 

trouble engendered for receiving, keeping, 

and discharging him, the sheriff would only 

receive about 12 cents, which would in no 

respect begin to compensate him for his trouble in keeping, supporting, and maintaining 

him. When the contract was made for the pay 

of the sheriff for such services, there was 

nothing said about a division of a day's time, 

and our decisions holding that when a day is 

so expressed it is to be construed to mean 

the time elapsing between midnight and midnight, we will so construe it. . . ." 

The effect of this holding is that the term 'day" in 

the statute meant day or fraction thereo?, and the holding 

was that the sheriff was entitled to full compensation for 

the maintenance of a prisoner even though the prisoner was 

in custody only a part of a day. 

It is the opinion of this office that a court appointed 

attorney, entitled to receive compensation under the provisions 

of Article 26.05, is entitled to the Sees listed therein, regardless of the fact that his appearance may have been only 

for a portion of a day. 

You are further advised that it is the opinion of this 

office that said attorney is entitled to said compensation 

for each day in trial court representing the accused, whether 

for the purpose of arraignment, answering docket call, for 

purposes of trial or for any other appearance in trial court 

representing the accused. 

your attention is invited to Article 26.05, Section 

4 which provides: 

"An attorney may not receive more than one 

fee for each day fin court, regardless of then 

number of cases in which he appears as appointed counsel on the same day." 

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Honorable Crawford Parker, Jr., page 3 (c-639) 

This office haspreviously held that this provision limits the compensation which an attorney may receive to one appearance in court on one day, regardless of the number of defendants which he may represent during this one day period. 

The Reynolds.case further states: 

"As a general rule the term 'day,' as used 

in legislative enactments or in contracts, 

means the whole 24 hours, that is, from midnight to midnight; especially Is this the rule 

in reference to official services, except where 

it is in some way restricted or limited. 0' 

Connor v. Towns, 1 TexZL.07; Speer v. State,~ 2 

Tex.App. 246; Haines v. State, 7 Tex.App. 30; 

Janks v. State, 29 Tex.App. 233, 15 S.W.815; 

Linhart v. State, 33 Tex.Cr.R. 507, 27 S.W. 

260; Muckenfuss v. State, 55 Tex.Cr.R. 229, 

116 S.W. 51, 20 L.R.A. (KS.) 783, 31 Am-St. 

Rep. 813, 16 Ann. Cas. 768; Jones v. State, 32 

Tex.Cr.R. 5 4, 

38 2 , 

25 S.W. 124; Denver v.. Pearce, 

13 ~010. 22 Pac. 774, 6 L.R.A. 541; Miner 

v. Goodyear,Co., 62 conn. 410, 26 Atl. 643; In 

re Senate Res., 9 Colo. 628, 21 Pac.. 475; Cosgriff v. Commissioners, 151 Cal. 407, 91 Pac. 

98; 13 cyc. 263; 38 cyc. 314, i3 6. Many more 

authorities might be cited, from other states, 

but we deem it unnecessary to do so. 

"In Speer v. State, supra, the court in its 

opinion says: 

"'We know no rule of law or legal mode of 

computing time by which we would be warranted 

in holding that parts of two days make a day.' 

"In O'Connor v. Towns, supra, the court 

quotes from Lester v. Garland, 15 Ves. 246, 

as follows: 

"hour law rejects the fractions of a day 

more.generally than the civil law does, The 

effect is to render the day a sort of indivisible point, so that any act done In that 

compass of it, is not referable to any one 
Honorable Crawford Parker, Jr., page 4 (c-639) 

rather than to every other portion of it, but 

the act and the day are coextensive, and therefore cannot be properly said to be passed until 

the day is passed.' 

"In Janks v. State, supra, th,e court said: 

"'The word "day," as used in article 178 of 

the Penal Code,includes the time elapsing from 

12 o'clock midnight to the succeeding one,' 

"In Linhart v. State, supra, the court, in 

discussing the time when a person becomes of 

age, used the following language: 

"'It is to be observed that a person becomes of age on the first instant of the last 

day of the twenty-first year next before the 

anniversary of his birth. Thus, If a person 

were born at any hour of the 1st day of January, A.D. 1.801 (even a few moments before 12 

o'clock at night of that day), he would be of 

full age at the first instant of the 3lst of 

December, 1821, although nearly forty-eight 

hours before he had actually attained the full 

age of twenty-one, according to years, days, 

hours and minutes, because there is not in 

law, inthis respect, any fraction of a day, 

and it is the same whether a thing is done 

upon one moment of a day or another.' 

"Judge Davidson, in his opinion in the case 

of Muckenfuss v. State, supra, discussed the 

meaning of the word 'days' in a Texas statute. 

In that case the opinion turned on the meaning of the word 'day* in article 302, Penal 

Code of Texas, which Inhibits, under certain 

conditions, certain public amusements on Sunday- In this decision Judge Davidson said: 

"'"Sunday" as used in this statute, means 

the entire day; that is, from midnight Saturday night until midnight Sunday. It includes twenty-four hours. Such has been the 

construction of '!dag'! in all the decisions of 

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. I 

Honorable Crawford Parker, Jr., page 5 (C-639) 

this state where simply a 'day" is mentioned. * + * It is unnecessary to cite authorities, we think, in Texas to sustain 

these positions.'~ 

"In Miner v. Goodyear, etc., supra, the 

court also construed the meaning of the word 

'day' as same was used in a statute. In that 

opinion the court used this language: 

"'The current, of authorities is substantially unvarying to the effect that when the 

word "day" is used in a statute or in a contract, it will, unless it is in some way 

restricted, be held to mean the whole twentyfour hours.' 

"A part of the text in Cyc. vol. 13 ,p. 

263, cited above, is: 

~'As used in a statute nor in a contract 

twenty-four hours and not merely the day ai 

popularly understood from sunrise to sunset, 

or during the time the light of the sun is 

visible.'. 

"A nart.of the text In Csc. vol. 38. D. 

314, a;ld in 

'Day,' is: 

"'It may 

computation 

section 6, under the titie- ^ 

days and in 

be stated generally that in the 

of a period of time measured in 

the~construction of the word 

"day" as used in a cbntract or.statute, the 

law adopts as the unit of measurement the 

period of.twenty-four hours extending from 

midnight to midnight.' 

"In Smith v. Commissioners, 10 Colo. 17, 

13 Pac. 917,. in construing the statute reading as follows: 'For the time necessarily 

spent in the discharge of his duty he shall 

receive $5.00 Peru day,' etc., the court said: 

"'Inthis connection counsel for the appellee asks for an opinion "as to what length 

of time will constitute a day's service for 

the superintendent." We answer, the law does 

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. . 

Honorable Crawford Parker, Jr., page 6 (c-639) 

not recognize fractions of days; and when it 

provides a per diem compensation for the time 

necessarily devoted to the duties of an office, the officer is entitled to this daily 

compensation for each day on which it becomes necessary for him to perform any substantial official service, if he does 

perform the same, regardless of the time occupied in its performance.' 

"On account of necessity and for public 

convenience and in order to avoid disputes, 

the law rejects fractional parts of a day. 

Long's, Appeal, 23 Pa. 297; Miner v. Goodyear, 

etc., 62 COM. 410, 26 Atl. 643; Cosgriff v. 

Commissioners, 151 cd. 407, 91 Pac. 98. 

"In Long's Appeal supra, the court said: 

"'It is a principle of the common law that 

in judicial and other public proceedings 

there are no fractions of a day, and that 

all transactions of the same day are, in ,. 

general, regarded as occurring at the same 

instant of time. This principle has been 

established from necessity and from a regard 

to public convenience.' 

"A part of the language used by the court 

in Cosgrlff v. Commissioners, supra, is: 

"'The fractions of the days are no more 

taken into consideration than are the fractions of the seconds. The consequence is 

that every day and every part of that day 

is, by this rule, one day before every part 

of the succeeding day. The last moment of 

any day is, in contemplation of law in such 

cases, one day before the first moment of 

the next day, although the elapsed time is 

infinitesimal. The rule is strictly one of 

convenience. Any other method of computation 

would require an accurate account to be kept 

of the exact hour, minute, and second of the 

occurrence of the act to be timed, and would 

produce endless confusion and strife, and 

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Honorable Crawford Parker, Jr., page 7 (C-639) 

would prove impolitic, if not wholly impracticable.' 

"It is contended by appellant that to construe a 'day' as used in the statute to mean 

the time from midnight to midnight would, in 

many cases, work an injustice. In reply it 

might justly be said that in ~many ways it 

might work an injustice to the sherlff,to 

construe the statute as contended for by appellant." 

The Re olds case was cited with approval in Tl ton v. Ti ton, 

140 ?d%T65 (Tex.Civ.App 

Long ;--City of Wichita Falis, l7& S.W.2d 936 (Tex.Sup. 

1940 error dismwf. 

It is our opinion, therefore, that a day consists of 

the twenty-four hour period from midnight to midnight. An 

appearance at 2:3O p.m. in trial court on one calendar day 

of the month and an appearance on the following calendar day 

at 11:00 a.m. would constitute an appearance on two separate 

days and the attorney would be entitled to receive compensation for both days. 

SUMMARY 

An attorney, when entitled.to be coiapensated in accordance with Article 26.05, 1966 

Code of Criminal Procedure, Is entitled to 

this compensation regardless of whether he appears in trial court for a full day or a fractional part thereof. Further, her is entitled 

to this compensation for each appearance in 

trial court when representing his client'. If 

such attorney represents more than one defendant on the same day, he is entitled to compensation only once on that day-~ A day is the 

twenty-four, hour period from midnight to midnight. 

Very truly yours, 

WAGGORERCARR 

Attorney General of Texas 

By: 
-. . 

Honorable Crawford Parker, Jr., page 8 (C-639) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Howard M. Fender 

Charles B. Swarmer 

Phlllip Crawford 

El. Grady Chandler 

APPROVED FOR THE ATTORNEY GENERAL 

By: T. B. Wright 

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