- .

THE ATTQRNEY GENERAL

OF TEXAS

HonorableCrawford Parker, Jr. OpinionAO. 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 requestyou 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 commissionerscourts in that area of Texas, construe "a day" to mean sixteenhours. Thus, it is implied, if a court appointed attorney spends four hours in court representinghis client,he would be entitledto four-sixteenths, or one-fourthof the compensationas set forth in Article 26.05.
In Dallas County v. Reynolds, 199 S.W. 702 (Tex.Civ. App. 1918, no writ history), the Court construedChapter 64, Acts of the 32nd Legislature, page 107, which provided:

provided the same shall be reasonablysuffic cient as compensationfor 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 prisonerper day." (Rmphasis added.)
In that case there was no controversyas to the facts. The Court said:

"It seems that in the instant case the county auditor required that a recordbe kept

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Honorable CrawfordParker, 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 instancesto the hour, allowing the sheriffonly 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 dischargedat 2 o(clock the same day, after two meals were given, and all the trouble engenderedfor receiving,keeping, and discharging

him, the sheriffwould only receive about 12 cents,which would in no respectbegin to compensatehim for his trouble in keeping, supporting, and maintaining him. When the contractwas made for the pay of the sheriff for such services,there was nothing said about a divisionof a day's time, and our decisionsholding that when a day is so expressedit is to be construedto mean the time elapsingbetween midnight and midnight, we will so construe it.

. . ." The effect of this holding is that the term 'day" in the statutemeant day or fraction thereo?,and the holding was that the sheriffwas entitledto full compensationfor the maintenanceof a prisoner even though the prisonerwas in custody only a part of a day.
It is the opinion of this office that a court appointed attorney,entitledto receive compensation under the provisions of Article 26.05, is entitled to the Sees listed therein,regardlessof the fact that his appearancemay 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 entitledto said compensation for each day in trial court representingthe accused,whether for the purpose of arraignment, answeringdocket call, for purposes of trial or for any other appearancein trial court representing

the accused.
your attentionis invited to Article 26.05, Section 4 which provides:

"An attorneymay not receivemore than one fee for each day fincourt, regardlessof then number of cases in which he appears as appointed counsel on the same day."

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This office haspreviously held that this provision limits the compensation which an attorneymay receive to one appearance in court on one day, regardlessof the number of defendantswhich he may representduring this one day period. The Reynolds.casefurther states: "As a general rule the term 'day,'as used in legislativeenactmentsor in contracts, means the whole 24 hours, that is, from midnight to midnight; especiallyIs this the rule in referenceto official services,except where it is in some way restrictedor 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; Linhartv. State, 33 Tex.Cr.R. 507, 27 S.W. 260; Muckenfussv. 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,

2 38 , 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 unnecessaryto do so. "In Speer v. State, supra, the court in its opinion says: "'We know no rule of law or legal mode of computingtime by which we would be warranted in holding that parts of two days make a day.'
"In O'Connorv. Towns, supra, the court quotes from Lester v. Garland, 15 Ves. 246, as follows: "hour law rejects the fractionsof a day more.generally than the civil law does, The effect is to render the day a sort of indivisiblepoint, so that any act done In that compass of it, is not referable to any oneHonorable CrawfordParker, Jr., page 4 (c-639)

rather than to every other portion of it, but the act and the day are coextensive, and therefore cannotbe 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'clockmidnight to the succeedingone,'
"In Linhartv. State, supra, the court, in discussingthe time when a person becomes of age, used the followinglanguage:
"'It is to be observedthat a person becomes of age on the first instant of the last day of the twenty-first year next before the anniversaryof 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, althoughnearly forty-eight hours before he had actuallyattainedthe full age of twenty-one,accordingto years, days, hours and minutes,because there is not in law, inthis respect,any fractionof 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 Muckenfussv. State, supra, discussedthe 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,certainpublic amusementson Sunday- In this decisionJudge Davidson said: "'"Sunday"as used in this statute,means the entire day; that is, from midnight Saturday night until midnight Sunday. It includes twenty-fourhours. Such has been the constructionof '!dag'! in all the decisionsof

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Honorable CrawfordParker, Jr., page 5 (C-639)

this state where simply a 'day" is mentioned. * + * It is unnecessaryto cite authorities,we think, in Texas to sustain these positions.'~
"In Miner v. Goodyear, etc., supra, the court also construedthe 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 unvaryingto 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 statutenorin a contract twenty-fourhours and not merely the day ai popularlyunderstood 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 computationsection 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 measurementthe 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 dischargeof his duty he shall receive $5.00 Peru

day,' etc., the court said: "'Inthis connectioncounsel for the appellee asks for an opinion "as to what length of time will constitutea day's service for the superintendent." We answer, the law does

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HonorableCrawford Parker, Jr., page 6 (c-639)

not recognize fractionsof days; and when it provides a per diem compensation for the time necessarilydevoted to the duties of an office, the officer is entitledto this daily compensationfor each day on which it becomes necessary for him to perform any substantial official service, if he does perform the same, regardlessof the time occupied in its performance.' "On account of necessityand for public convenienceand 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; Cosgriffv. Commissioners, 151 cd. 407, 91 Pac. 98.
"In Long's Appeal supra, the court said:
"'It is a principleof the common law that in judicialand other publicproceedings there are no fractionsof a day, and that all transactionsof the same day are, in ,. general, regardedas occurringat the same instant of time. This principlehas been establishedfrom necessityand from a regard to public convenience.'
"A part of the languageused by the court in Cosgrlffv. Commissioners, supra, is: "'The fractionsof the days are no more taken into consideration than are the fractions of the seconds. The consequenceis that every day and every part of that day is, by this rule, one day before every part of the succeedingday. 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 strictlyone of convenience. Any other method of computation would require an accurateaccount to be kept of the exact hour, minute, and second of the occurrenceof the act to be timed, and would produce endless confusionand strife, and

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would prove impolitic,if not wholly impracticable.' "It is contendedby appellantthat to construe a 'day'as used in the statute to mean the time from midnight to midnightwould, in many cases, work an injustice. In reply it might justlybe said that in ~many ways it might work an injusticeto the sherlff,to construe the statute as contendedfor 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-fourhour period from midnight to midnight. An appearanceat 2:3O p.m. in trial court on one calendar day of the month and an appearanceon the following calendarday at 11:00 a.m. would constitutean appearanceon two separate days and the attorneywould be entitled to receive compensation for both days. SUMMARY

An attorney,when entitled.tobe coiapensated in accordancewith Article 26.05, 1966 Code of CriminalProcedure, Is entitled to this compensationregardlessof whether he appears in trial court for a full day or a fractional part thereof. Further,heris entitled to this compensationfor each appearance in trial court when representing his client'. If such attorney representsmore 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:-. .

HonorableCrawford Parker, Jr., page 8 (C-639)

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman HowardM. Fender CharlesB. Swarmer Phlllip Crawford El. Grady Chandler APPROVEDFOR THE ATTORNEY GENERAL By: T. B. Wright

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