Honorable Joe Resweber Opinion No. C-763 

County Attorney 

Harris County Courthouse Re: What fee Is an appointed counsel 

Houston, Texas entitled to under the provisions 

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 receive under 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 

same day. 

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 shall be paid from 

the general fund of the county in which the 

prosecution was instituted according 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 has made 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 the prosecution to a final conclusion of 

a bona fide appeal to the Court of Criminal'A peals, 

a fee of not less than'$lOO.OO nor more than $ 250,oo; 

(e) For the prosecution to a final conclusion of 

a bona fide appeal to the Court of Criminal Appeals 

in a case where the death penalty~has been assessed, 

a fee of not 1es.s than $100.00 nor more than $500.00. 

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Honorable Joe Resweber, Page 2 (Opinion No. c-768) 

"Sec. 2 The minimum fee 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 of court. 

"Sec. 4 An attorney may not receive more than 

one fee for each day in court, regardless of the 

number of cases in which he appears as appointed 

counsel on the same day." 

Section.4 of Article 26.05 states that an attorney may not 

receive more than one See for each day in court, regardless of the 

number of cases in which he appears as appointed counsel on the 

same day. 

Subdivisions (d) and (e) of Section 1 of Article 26.05, both 

refer to cases appealed to the Court of Criminal Appeals, and the 

question Is whether Section 4 applies to these two subdivisions so 

that an attorney who appears in two or more cases before the Court 

of Criminal Appeals on the same day ia limited to one fee. 

It will be noticed that'ln both Subdivisions (a) and (b) of 

Section 1 of Article 26.05 reads in part: "For each day in trial 

. . . -- a fee of . . .' (Emphasis added). 

Section 4 reads In part: "An attorney may not receive more than 

one Pee for each & in court. . .' (Emphasis supplied). 

Since both Subdivisions (d) and (e) are written in terms 

of fees paid 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 each day in court, and not for the prosecution to a final 

conclusion of a bona fide appeal to the Court of Criminal Aqqeals.~ 

In a special commentary by Judge John F. Onion; Jr., in 

Vernon's Code of Criminal Procedure, Article 26.05, he supports 

this result by saying in part: 

"The Legislature did limit an appointed attorney 

to one fee for each day in court rega,rdless of the 

number of cases on same day. This was necessary 

because of the inclusion of ja21 punishable misdemeanors where an attorney might be appointed to 

10 to 20 cases in one day. Note that no distinction 

is made between pleas of guilty and not guilty in 

the pay schedule." (Emphasis supplied). 

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Honorable Joe Resweber, Page 3 (Opinion No. 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 separate See for each bona fide appeal 

prosecuted 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. 

SUMMARY 

Under the provisions of Article 26.05, Vernon's 

Code of Criminal Procedure an appointed counsel is to be paid 

a separate fee for each bona fide appeal prosecuted 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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