The Honorable Gene neatly

County Attorney Wilbarger County Vernon, Texas 76384 Opinion No. H-909
Re: Compensation of attorneys appointed to represent indigents for time spent on legal research and investigation.
Dear Mr. Heatly:
You ask twoquestions about theprovisions inarticle 26.05, Code of Criminal Procedure, for compensation of counsel appointed to represent indigent defendants. Your first question is:

UnderArticle 26.05, Sec. l(a)may the Court take into consideration the number of hours spent by an attorney on behalf of his client on legal research and investigation, both inand out of Court, in awarding attorney's fees to compensate the attorney?
In answering your first question, we assume that inreferring to hours spent on legal research and investigation incourt you mean any in-court services an attorney may perfZFm in representing his client. Article 26.05, Code of Criminal Procedure, provides:

Section 1. A counsel appointed todefend a person accused of a felony or amisdemeanor punishable by imprisonment, or to represent an indigent in ahabeas corpus hearing, shall be paid from the general fund of the county in which theprosecution was instituted or habeas corpus hearing held, according to the following schedule:

P. 3813The Honorable Gene Heatly -page 2 (H-909)

(a)For eachday or a fractional part thereof in court representing the accused, a reasonable fee tobe setby the court but in no event to be less than $50

. . . . InAttorney General Opinion H-789 (1976),we said thata court-appointed attorney may not be compensated under article 26.05 ifhe does not appear in court. Once he appears in court, the judgemust seta reasonable fee for each day or fraction thereof in court. The statute does not state the factors which the judge may consider in setting the fee,but leaves him considerable discretion tovalue the attorney's respresentation of theaccused. Cf. Eggleston v. State, 422 S.W.2d 460 (Tex.Crim.APP. 1967). The iuds's determination carries apresumption of reasonableness, and if the commissioners court objects topaying the fee, ithas the burden of showing thathis action was so unreasonable, arbitrary and capricious as to amount toan abuse of discretion. Commissioners Court of Lubbock County v. Martin, 471 S.W.Zd 100 (Tex.Civ.App. --Amarillo 1971,Trit ref'd n.r.e.1; Attorney General Opinion H-499 (1975): When asked about the reasonableness of compensation awarded by a judge who considered time spenton out-of-court preparation, we determined inH-499 that its reasonableness was a fact question, which we could not resolve. We do not believe that the fee is inherently unreasonable because the judge considered outof-court preparation asone factor invaluing the court appearance. Nor canwe say that the court may not consider the number of hours spenton in-court activities, so long as the resulting fee isreasonable. The reasonableness of any particular fee based on these or other considerations is, of course, aquestion thatwe cannot resolve. See State Bar of Texas, Rules andCode of Professional Responsibility, DR 2-106(B). See generally Annot., et seq. (1968). 18A.L.R.3d 1074, 1104-

- Your second question is:

If an attorney billed himself and paid himself for legal research and investigation done by theattorney on behalf of his client, would such investigation and legal resear,chthen constitute 'expenses incurred for thepurpose of investigation' under Article 26.05, Sec. l(d)?

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. . *

The Honorable Gene Heatly ;page 3 (H-909)

Section l(d) of article 26.05, Code of Criminal Procedure provides compensation for appointed counsel:

For expenses incurred forpurposes of investigation and expert testimony, a reasonable fee to be setby the court but in noevent to exceed $500.
We said inAttorney General Opinion H-789 (19761at 3 that "subsection (cl)

is limited in its application to the reimbursement of expenses actually incurred by the attorney, and cannot be extended to compensate him for his out-of-court time." InAttorney General Opinion C-713 (1966)at 3, this office said of article 26.05, section l(c), the predecessor of section l(d), that "thisprovision is intended to reimburse the attorney formoney paid out forpurposes of investigation and expert testimony and isnot tobe construed as allowing additional fees for service rendered to the indigent." Even though an attorney bills and pays himself for legal research and investigation, he still is seeking compensation for his own out-of-court services for the defendant, not compensable under article 26.05, section l(d). We answer your second question in thenegative.
SUMMARY
A feeawarded under article 26.05, section l(a), Code of Criminal Procedure, isnot inherently unreasonable because the court considered time spent on legalresearch and investigation in establishing it. Legal research and investigation dohe by an attorney and billed tohimself isnot compensable under article 26.05, section l(d). fiery truly yours, t

Attorney General of Texas

P. 3815The Honorable Gene Beatly -page 4 (H-909) I

APROVED:

DAVID M.-KENDALL, FirstAssistant

C. ROBERT IfEATIi, Chaunnan Opinion Committee jwb

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