The Honorable Ted Butler               Opinion No. H-910
Criminal District Attorney
Bexar County Courthouse                Re: County payments of
San Antonio, Texas 78205               court-ordered fees to
                                       appointed defense attorneys.

Dear Mr. Butler:

     you have posed five questions concerning article 26.05,
Texas Code Criminal Procedure, which specifies:

             Section 1. A counsel appointed to defend
          a Pierson accused of a felony or 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:

             .   .   .   .

             Sec.  2. The minimum fee will be auto-
          matically allowed unless the trial judge
          orders more within five days of judgment.

     Two of your questions ask whether it is mandatory that
the commissioners court pay the fees set by the trial court,
first where the commissioners court finds the fees to be
reasonable, and second where it finds them to be unreasonable.

     These questions were answered in Attorney General Opinion
H-499 (19751, where we said in summary:


                             P. 3817
The Honorable Ted Butler - page 2 (H-910)



          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 Crim. Proc., for the repre-
          sentation of indigent defendants.  The trial
          judge's order can be overturned only on a
          showing that it was so arbitrary, unreasonable
          and capricious as to amount to an abuse of
          discretion. -Id. at 4.

     If the fee properly set by the trial court is reasonable,
it is mandatory that the commissioners court pay it; if the
fee is unreasonable, the commissioners court may refuse to
pay it but the burden of proving its unreasonableness will
fall upon the resisting commissioners court. Cf. Commissioners'
Court of Hays County v. District Judge, 506 S.cZd 630 (Tex.
Civ. App. -- Austin lm4, writ ref'd n.r.e.); Commissioners
Court of Lubbock County v. Martin, 471 S.W.Zd 100 (Tex. Civ.
APP. -- Amarillo 1971, wzt ref'd n.r.e.).
     Your third question asks whether the county auditor and
county treasurer may issue warrants to pay such court-ordered
fees without the approval of the commissioners court.

      The county auditor and the treasurer have no authority
to issue warrants to pay such fees without the approval of
the commissioners court, whether or not funds are available
in a properly budgeted account from which such fees might be
paid. See Attorney General Opinions H-171 (1973), O-5049
 (1943).- --
          See also Padgett v. Youn County,,204 S.W. 1046
 (Tex. Civ. App. -- Ft. Wora d,      writ dism'd, 229 S.W.
459 (Tex. Sup. 1921).    Cf. V.T.C.S. arts. 1659a, 1660,
1661, 1637, 2351; Smith CMcCo      533 S.W.Zd 457 (Tex. Civ.
APP.  -- Dallas 1976.irdism -4;.

     Next, you ask if the commissioners court has any discre-
tion in approving the annual budget recommendation made by
the county auditor regarding the amount budgeted for court-
ordered fee payments to court-appointed lawyers.




                        P. 3818
. .




      The Honorable Ted Butler - page 3   (H-910)



           As the statutorily designated.chief budget officer for
      the Commissioners Court of Bexar County, it is the duty of
      the county auditor annually to prepare a budget to be acted
      upon by the commissioners court after a public hearing.
      V.T.C.S. art. 1666a. Thee statute provides, however, that
      the "[commissioners] [clourt shall have authority to make
      such changes in the budget as in its judgment the facts
      and the law warrant and the interest of the taxpayers
      demand . . . ." -See Attorney General Opinion M-678 (1970).

           Where the Legislature has specially committed to others
      the final determination of the county budget regarding
      particular items, the court's article 1666a authority to
      change the proposed budget is restricted.  Commissioners'
      Court of Hays County v. District Judge, supra; Commissioners
      ;",y;;os ~;~;"~lg$Y;&8~~~;;~)      fx?Eg; ;p-;     p-;:
      Opinion M-759 (1970). But we do not baeve    the Legislature
      has withdrawn from the commissioners court its article 1666a
      discretion to disapprove or modify the budget recommendation
      made by the county auditor with regard to an account for
      court-ordered defense fees. Cf. Attorney General Opinion
      M-1056 (1972). Accordingly, weanswer   your fourth question
      in the affirmative.

           Your last question assumes that the county commissioners
      court has budgeted an insufficient amount to pay court-ordered
      defense fees and that although funds in that account have
      been totally depleted, trial judges are continuing to approve
      and order payment of fees to court-appointed defense lawyers.
      Your question also assumes that unbudgeted revenues are
      available.  You ask if it is mandatory in that situation
      for the commissioners court to approve an "emergency budget
      amendment" submitted by the county auditor appropriating
      unbudgeted funds to the depleted account to cover antici-
      pated court-ordered fee payments for the remainder of the
      budget period.

           The commissioners of counties with a population of
      350,000 or under may, if certain circumstances exist,
      amend the budget to provide for emergency expenditures that
      will increase the total budget. V.T.C.S. art. 689a-11;
      Rains v. Mercantile National --
                                   Bank at Dallas, 188 S.W.Zd 798
      (Tex. zv. App. -- El Paso 1945), aff'd, 191 S.W.Zd 850 (Tex.
      sup. 1946); Attorney General Opinion O-6220 (1944). We



                              p. 3819
The Honorable Ted Butler - page 4   (H-910)



find no similar provision authorizing the commissioners
of Bexar County to add unbudgeted funds to the budget in
mid-year.  Article 1666a provides that the commissioners
court of counties over 225,000 in population "may upon
proper application transfer an existins budset surplus
during the year to a budget of like kind and fund,-but no
such transfer shall increase the total of the bud eF    -
lEmphasis addea).We   infer fEiii theecslature -A--*
                                                  s refusal
to permit transfers that would increase-the total of the
budget an intent to prohibit amendments that would increase
the total budget, as would the proposed appropriation of
unbudgeted funds to the attorneys' fees account. - See
Attorney General Opinion M-678 (1970).

      Thus, since the commissioners court may not adopt the
proposed amendment, it cannot be compelled to adopt it.
However,  it may reallocate funds according to the provisions
of article 1666a. It is mandatory that the county pay the
fees properly ordered by the trial courts. Attorney General
Opinion H-499 (1975). See generally Wichita County-v.
Griffin, 284 S.W.Zd 253Tex.    Civ. App. -- Ft. Worthi955,
writ ref'd n.r.e.1; Guerra v. Rodriguez, 274 S.W.Zd 715
(Tex. Civ. App. -- Austin lv55, writ ref'd n.r.e.); Attorney
General Opinion H-12 (1973).

                     SUMMARY

          It is mandatory that the Bexar County
          Commissioners Court pay the fees for
          court appointed defense counsel properly
          ordered by trial courts, unless the fees
          set are so arbitrary, unreasonable and
          capricious as to result from an abuse of
          discretion.  The Commissioners Court of
          Bexar County may not add money to the budget
          in mid-year to pay for indigent representation,
          but it may transfer excess funds from other
          accounts in accordance with the provisions of
          article 1666a.

                         Very truly yours,

                     0     A3       +--l/2"

                                       ' +,y;(:
                                                /

                         Attorney General of Texas


                        p. 3820
The Honorable Ted Butler - page 5    (H-910)




APPROVED:


L/j&
DAVID M,KENDALL,   First Assistant

            ,,,’
 &a
c. ROBERT HEATH, Chairman
Opinion Committee

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