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 two questions about the provisions in article 

26.05, Code of Criminal Procedure, for compensation of 

counsel appointed to represent indigent defendants. Your 

first question is: 

Under Article 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 in and out of Court, in 

awarding attorney's fees to compensate the 

attorney? 

In answering your first question, we assume that in referring 

to hours spent on legal research and investigation in court 

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 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: 

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

(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 . . . . 

In Attorney General Opinion H-789 (1976), we said that a 

court-appointed attorney may not be compensated under article 

26.05 if he does not appear in court. Once he appears in 

court, the judge must set a 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 to value the attorney's 

respresentation of the accused. Cf. Eggleston v. State, 

422 S.W.2d 460 (Tex. Crim. APP. 1967). The iuds's determination carries a presumption of reasonableness, and if 

the commissioners court objects to paying the fee, it has 

the burden of showing that his action was so unreasonable, 

arbitrary and capricious as to amount to an 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 spent on out-of-court preparation, we 

determined in H-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 as one factor in valuing the court 

appearance. Nor can we say that the court may not consider 

the number of hours spent on in-court activities, so long 

as the resulting fee is reasonable. The reasonableness of 

any particular fee based on these or other considerations is, 

of course, a question that we cannot resolve. See State 

Bar of Texas, Rules and Code of Professional Responsibility, 

DR 2-106(B). See generally Annot., 

et seq. (1968). 

18 A.L.R.3d 1074, 1104- 

- 

Your second question is: 

If an attorney billed himself and paid 

himself for legal research and investigation done by the attorney on behalf of 

his client, would such investigation and 

legal resear,ch then constitute 'expenses 

incurred for the purpose of investigation' 

under Article 26.05, Sec. l(d)? 

P. 3814 
I 

. . * 

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 for purposes of 

investigation and expert testimony, a 

reasonable fee to be set by the court but 

in no event to exceed $500. 

We said in Attorney General Opinion H-789 (19761 at 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." In Attorney General Opinion C-713 (1966) at 3, this 

office said of article 26.05, section l(c), the predecessor 

of section l(d), that "this provision is intended to reimburse 

the attorney for money paid out for purposes of investigation 

and expert testimony and is not to be 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 the negative. 

SUMMARY 

A fee awarded under article 26.05, 

section l(a), Code of Criminal Procedure, 

is not inherently unreasonable because 

the court considered time spent on 

legal research and investigation in 

establishing it. Legal research and 

investigation dohe by an attorney and 

billed to himself is not compensable under 

article 26.05, section l(d). 

fiery truly yours, 

t 

Attorney General of Texas 

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

I 

APROVED: 

DAVID M.-KENDALL, First Assistant 

C. ROBERT IfEATIi, Chaunnan 

Opinion Committee 

jwb 

P- 3816