January 20. 1975 The Honorable Jimmie D. Oglesby County Attorney Opinion No. H- 499 Midland County Courthouse Midland, Texas 79701 Re: Whether a commissioners court is required topay afee awarded an attorney for representation ofan indigent defendant. Dear Mr. Oglesby:

You have requested our opinion on several questions arising from the following situation: A capital murder indictment was returned in [a] District Court ofMidland County.
. . . The Judge
. . . appointed two local attorneys from the same law firm to represent the defendant. Itwas the first capital case tried i.nMidland County under the new [“death penalty”] stat&e?, and one of the first such cases tried in this State. Thereafter, [the] attorneys appeared in Court on pte-trial matters for fractional portions oftwo days, and then spent eight days in actual jury selection and trial. On the first day oftrial, the Court, on motion ofthe defense, struck from the indictment the capital punishment feature, and the balance ofthe tri.al was conducted under that ruling. The jury convicted thr delrntlant ofmurder wil:h malice and assessed his punishment at twenty yrars confinement Afl.er the jury had returned its verdict and thejudgment of conviction [had been] entered, ahearing was held
. . . on the matter oi the fee to be awarded the attorneys . . . under Article 26.05, Sec. 2. . . . Apparently no one . . . [participated at the hearing] on behalf ofthe State or County.

p. 2246The Honorable Jimmie D. Oglesby page 2 (H-499)

At the conclusion of [the] hearing, the
. . . Judge set afee of $10,000,
. . . $4,000
. . . for one lawyer and $6,000 for the other. The award ofattorneys’ fees was made pursuant to Tex. Code Crim. Proc. Ann., Art. 26.05, $1, as amended (Supp. 1973).
. . . The order ofthe
... Judge was subsequently presented to the Midland County Commissioners Court by the lawyers who
. . . demanded payment. The County had initially budgeted $10,000 for the entire year of 1974to pay court appointed counsel in criminal matters. At the time the demand was made upon the Court, $1,800 ofthat budget had already been disbursed in other cases, leaving only $8,200 in the budget for that purpose. . . . Your first two questions are:

1. Is any sort of Commissioners Court action on this matter required? Ifso, what action is the Court required to take? 2. Is the order ofthe Trial Judge conclusive on the County insofar as the amount oftk fee he aet? II not, bywhat procedure and bywhom may it be reviewed? The order awarding attorneys’ fees is a determination similar in nature tothe determination which a District Judge makes when he sets the salary to be paid by a county toanAdult Probation Officer, pursuant toarticle 42.12 section 10, Tex. Code Crim. Proc. The delegation 01 such aduty to a District Judge is not unconstitutional. Commissioners Court of Lubbock County v. Mart@, 471S.W. 2d 100 (Tex. Civ. App. Amarillo, 1971, writ ref., n.r. e.).

Article 26.05, Tex. Code Crim. Proc., reads (in pertinent part)

p. 2247The Honorable Jimmie D. Oglesby, page 3 (H-499)

Section 1. A counsel appointed to defend aperson accused ofa felony or amisdemeanor punishable by imprisonment, or to represent an indigent in ahabeas corpus hearing, shall be paid from the general fund ofthe county inwhich the prosecution was instituted or habeas corpus hearing held, according to the following schedule: (a) For each day or afractional part thereof in court representing the accused, a reasonable fee to be set bythe court butin noevent to be less than $50:(b) For each day in court representing the accused in a capital case, a reasonable fee to be set bythe court but in noevent to be less than $250:
. . . . In the Lubbock County case the appellate court noticed that such determinations byjudges carried with them apresumption of necessity and reasonableness, and held that in disputes about the amount of compensation the burden rests with the resisting commissioners court to show that thejudges’ actions were 90unreasonable, arbitrary and capricious as to amount to an abuse ofdiscretion. You have asked our opinion concerning the “reasonableness” of the compensation awarded, particularly with respect to making an award to two members ofthe same firm, consideration by thejudge oftime spent on out-of-court preparation. and the effect of striking the capital punishment feature from the case in mid-trial. Whet~hrr the cast is regarded as a capital case or a non-capit.al~ case, articlr 26.05. Tex. Code Crim. Proc., specifics only t,hcminimum fees which the court. may fix. Fee:s awarded nerd on1.ybo reaaonablc. WC cannot resolve disputed que,:dtions offact, about the “rcasonabl,enesa” oft.hc action taken. If the County believes il. can sustain its burden of showing here that the fees are unreasonable it can insfitute a declaratory judgment or decline to pay and be subject 1.0amandamus or other proceeding.

p. 2248The Honorable Jimmie D. Oglesby, page 4 (H-499)

SUMMARY The commissioners court ofa county is under a duty to budget and order paid the amount ofany reasonable attorney’s fee properly set by a criminal court judge pursuant toarticle 26.05. Tex. Code Grim. Proc., for the representation ofindigent defendants. The trial judge’s order can be overturned only ona showing that itwas 80arbitrary, unreasonable and capricious as to amount to an abuse ofdiscretion. This office cannot resolve disputed fact issues of this type which involve the question ofthe reasonableness ofthe fees set. Very truly yours,

Attorney General ofTexas APPROVED:

DAVID M. KENDALL, First Assistant

7 Opinion Committee

p. 2249