Honorable Joe Resweber Opinion No. C-763

County Attorney Harris County Courthouse Re: What fee Is an appointed counsel Houston, Texas entitled to under theprovisions of Article 2605, Code of Criminal Procedure,when he appears in two or more cases before the Court of Criminal Appeals on the same Dear Mr. Resweber: day?
In your opinion.request to this office you ask what fee an appointed counsel is entitled to receiveunder the provisions of Article 26.05, Vernon's Code of Criminal Procedure, when he appears in two or more cases before the Court of Criminal Appeals on the sameday. Article 26.05 reads as follows:

"Sec. 1 A counsel appointed to defend a, person accused of a felony or a misdemeanor punishable by imprisonment shallbe paid from the general fund of the county inwhich the prosecution was institutedaccording to the following schedule: (a) For each day in trial court representlng the accused, a fee of not less than $25.00 nor more than $50.00; (b) For each day in trial court representing the accused when the State hasmade known that it will seek the death penalty, a fee of not less than $25.00 nor more than $100.00; (c) For expenses incurred for purposes of lnvestigation and expert testimony,not more than $25O.OO; (d) For theprosecution to a final conclusion of a bona fide appeal to the Court of Criminal'A peals, a fee of not less than'$lOO.OOnor more than $250,oo; (e) For the prosecution to a final conclusion of abona fide appeal to the Court of Criminal Appeals in a case where the death penalty~has been assessed, a fee of not 1es.sthan $100.00nor more than $500.00. -3692-HonorableJoe Resweber, Page 2 (OpinionNo. c-768)

"Sec. 2 The minimum fee will be automatically allowedunless the trial judge ordersmore within five days of the judgment. "Sec. 3 Allpaymentsmade under the provisions of this Articlemay be includedas costs of court. "Sec. 4 An attorneymay not receivemore than one fee for each day in court, regardless of the number of cases in which he appears as appointed counsel on the sameday." Section.4of Article 26.05 statesthat an attorneymay not receivemore than one See for each day in court, regardless of the number of cases in which he appears as appointed counsel on the sameday. Subdivisions (d)and (e)of Section 1 of Article 26.05, both refer to cases appealed to the Court of CriminalAppeals, and the question Is whether Section 4 applies to these two subdivisions so that an attorneywho appears in two ormore casesbefore the Court of CriminalAppeals on the same day ia limited to one fee.
It will be noticed that'lnboth Subdivisions (a)and (b)of Section 1 of Article 26.05 reads inpart: "For each day in trial

. . . a fee of

. . .' -- (Emphasisadded). Section 4 reads In part: "An attorneymay not receivemore than onePee for each & in court.
. .' (Emphasissupplied). Sinceboth Subdivisions (d)and (e)are written in terms of feespaid for the rosecution to a final conclusion of a bona fide appeal and do no-fees p-or each day in court, it is concluded that Section 4 applies only to subdivision (a) and (b)of Section 1 of Article 26.05, where fees are provided for eachday in court, and not for theprosecution to a final conclusionof a bona fide appeal to the Court of CriminalAqqeals.~
In a special commentaryby Judge John F. Onion; Jr., in Vernon's Code of Criminal Procedure,Article 26.05, he supports this resultby saying in part:

"The Legislature did limit an appointed attorney to one fee for each day in courtrega,rdless of the number of cases on sameday. This was necessary because of the inclusionof ja21punishablemisdemeanorswhere an attorneymight be appointed to 10 to 20 cases in one day. Note that no distinction ismade between pleas of guilty and not guilty in thepay schedule." (Emphasissupplied). -3693-Honorable Joe Resweber, Page 3 (OpinionNo. C-768)

It Is therefore our opinion that under the provisions of Article 26.05, Vernon's Code of Criminal Procedure, an appointed counsel is to be paid a separateSee for each bona fide appeal prosecuted to a final conclusion to the Court of Criminal Appeals, irrespectiveof whether appointed counsel appears in two or more cases before the Court of Criminal Appeals on the same day. SUMMARY Under the provisions of Article 26.05, Vernon's Code of Criminal Procedure an appointed counsel is tobe paid a separate fee for each bona fide appealprosecuted to a final conclusion to the Court of Criminal Appeals, irrespective of whether appointed counsel appears In two or more cases before the Court of Criminal Appeals on the same .day. Respectfully submitted, WAGGONER CARR' Attorney General of Texas

Assistant Attorney General

APPROVED OPINION COMMITTEE W. V. Geppert, Chairman Ronald Luna Robert Owen John Reeves Gordon Houser APPROVED FOR ATTORNEY GENERAL BY: T. B. Wright

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