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 to pay a fee 

awarded an attorney for representation of an 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 of Midland County. . . . The Judge . . . 

appointed two local attorneys from the same law firm to 

represent the defendant. It was the first capital case 

tried i.n Midland 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 of two 

days, and then spent eight days in actual jury selection 

and trial. On the first day of trial, the Court, on motion 

of the defense, struck from the indictment the capital 

punishment feature, and the balance of the tri.al was 

conducted under that ruling. The jury convicted thr 

delrntlant of murder wil:h malice and assessed his 

punishment at twenty yrars confinement Afl.er the 

jury had returned its verdict and the judgment of 

conviction [had been] entered, a hearing 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 of the State or 

County. 

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

At the conclusion of [the] hearing, the . . . Judge 

set a fee of $10,000, . . . $4,000 . . . for one lawyer 

and $6,000 for the other. The award of attorneys’ 

fees was made pursuant to Tex. Code Crim. Proc. 

Ann., Art. 26.05, $1, as amended (Supp. 1973). . . . 

The order of the . . . 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 1974 to pay court appointed counsel in criminal 

matters. At the time the demand was made upon the 

Court, $1, 800 of that 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? If so, what action is the Court 

required to take? 

2. Is the order of the Trial Judge conclusive on the 

County insofar as the amount of tk fee he aet? II 

not, by what procedure and by whom may it be 

reviewed? 

The order awarding attorneys’ fees is a determination similar in 

nature to the determination which a District Judge makes when he sets 

the salary to be paid by a county to an Adult Probation Officer, pursuant 

to article 42.12 section 10, Tex. Code Crim. Proc. The delegation 01 

such a duty to a District Judge is not unconstitutional. Commissioners 

Court of Lubbock County v. Mart@, 471 S. 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. 2247 
The Honorable Jimmie D. Oglesby, page 3 (H-499) 

Section 1. A counsel appointed to defend a person 

accused of a felony or a misdemeanor punishable by 

imprisonment, or to represent an indigent in a habeas 

corpus hearing, shall be paid from the general fund 

of the county in which the prosecution was instituted 

or habeas corpus hearing held, according to the 

following schedule: 

(a) For each day or a fractional part thereof in 

court representing the accused, a reasonable fee to 

be set by the court but in no event to be less than 

$50: 

(b) For each day in court representing the accused 

in a capital case, a reasonable fee to be set by the 

court but in no event to be less than $250: . . . . 

In the Lubbock County case the appellate court noticed that such 

determinations by judges carried with them a presumption 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 the judges’ actions were 90 unreasonable, arbitrary and 

capricious as to amount to an abuse of discretion. 

You have asked our opinion concerning the “reasonableness” of 

the compensation awarded, particularly with respect to making an 

award to two members of the same firm, consideration by the judge 

of time 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,hc minimum 

fees which the court. may fix. Fee:s awarded nerd on1.y bo reaaonablc. WC 

cannot resolve disputed que,:dtions of fact, about the “rcasonabl,enesa” of t.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 1.0 a mandamus or other proceeding. 

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

SUMMARY 

The commissioners court of a county is under a 

duty to budget and order paid the amount of any reasonable attorney’s fee properly set by a criminal court 

judge pursuant to article 26.05. Tex. Code Grim. 

Proc., for the representation of indigent defendants. 

The trial judge’s order can be overturned only on a 

showing that it was 80 arbitrary, unreasonable and 

capricious as to amount to an abuse of discretion. 

This office cannot resolve disputed fact issues of 

this type which involve the question of the reasonableness of the fees set. 

Very truly yours, 

Attorney General of Texas 

APPROVED: 

DAVID M. KENDALL, First Assistant 

7 

Opinion Committee 

p. 2249