          ‘     .




                                   March 24,           1967



      ‘Honorable Richard M. Price                      Opinion No. M-l@
       District Attorney
       104th Judicial  District                        Re:    Whether an attorney who
       Abllene, Texas                                         represent.6 a defendant, under
                                                              a court appointment on a sec-
                                                              ond trial,   after the acquittal
                                                              of the criminal offense,     Is
                                                              entitled   to compensation under
                                                              Articles 46.02,    26.04 and
                                                              35.27, V.C.C.P. or other pro-
                                                              vlsiona of the law, under the
. ,                                                           stated facts,    and related
      Dear Mr. Price:                                         question.
         In your letter    of February 16, 1967, you ask for an opinion
      of this office    on the following questions, which are restat.ed
      a6 follows :
          (1)    ?a an attorney   appointed   under Article    46.02, Sect~lon 8,
      Vernon’s Code of Criminal Procedure*,         to represent a person
      previously    acquitted   of a criminal   offense by reason of insanity
      and committed to a state mental hospital,         entitled    to compensation
      for representing      such person under such appointment at his sub-
      sequent sanity hearing held under authority          of Artfcle 46.02,
      Section 3?
          (2)   Are out-of-county     witnesses who appeared at such sanity
      hearing   in reeponse to subpoena entitled     to witness’~ fees and
      mileage   under Article    35.271
          Section 8 of Article 46.02 provides,    as far as is pertinent to
      these questions    that in a trial   on the issue of insanity  held
      under Chapter 46 of the Code of Criminal      Procedure, “If the defen-
      dant has no counsel,    t~he court shall appoint counsel to conduct
      the trial   for him.”                             ,~


      *All A tlcles     cited   herein       are Pram Vernon’s       Code of Criminal
      Procedire.

                                         -   221   -
 Eqnorable   Richard   M. Price,      Page 2,~(M-48 )

    Section 2(c)(3)    of Article 46.02 provides In regard~to insanity
hearings   at the trial on the merits;   “If the ‘jury finds the defen-
dant to have been insane at th time the offense is alleged to have
k;zn;tsm$tted,      the defendant ihall stand acquitted   of ‘the alleged
         .    (Underscoring .added.)
    Section 3 of Artldle 46.02 under the hea,dlng, “Status of patient
 acquitted”;    provides that a person committed~ to a State mental
 hospital,under    Article 46.02 “upon a, jury finding of’insanity  at
.the time of trial who has been ~acquitted df the alleged offense is
 not by.reaaon    of that offense a person cha rged with a criminal
 ZTense . ‘I (Underscoring added. ) ”
    Article~26.04      (a which deals with arraignment of an accused in
felony cases after        ndictment, and misdemeanor cases punishable by
imprisonment, provides that,.whenever       the Court.determines    at an
arraignment or at any time prior to arraignment that, an accused
char ed with a felon        or a misdemeanor punishable by imprisonment
dp,oor          to,d        counsel  th e court shall appoint one or more
practicing     attorneys to,defe&    him. Article    26.05 provides for
the payment of such counsel, so appointed as aforesaid,          from the
general    fund of the county in which the prosecution      was Instituted
according    to a schedule therein set’,out.
    From the foregoing,    it is obvious that the person’for       whom the
attorney was appointed to represent. at the sanity hearing, held for
the purpose’ of determining whether he should be released from. the
mental hospital    because of regaining his-sanity,     was not then a
person charged with a criminal offense,       by.reason ome        provisfons
of Artlae    4b 02    Th     f    the prqvisions    ‘for compensation for
such appointed   a&orniieazfeAot    available    under said Article     26,05,
because such Article     26.05 is applicable   only to appointments of
attorneys in criminal cases made under authority,of         Article   26.04(a).
We have found no statute providing compensation for attorneys appointed
under Section 8 of .Article 46.02 to conduct the trial for the~person
whose sanity is being determined, thus we answer your first           question
in the negative.
     As to your second que~stion, we point out that Article     24.01
 defines. a subpoena as “...a    writ issued to the, sheriff  or other
 proper officer    cominandlng him to summon one or more persons there-
 in named to appear at a certain~ term of the court,,or      on a certain
 day, to testify    in a criminal action,   or before an examining court,
 coroner’s   inquest,  the grand jury, or before a judge hearing an
 application   under habeas corpus, or in any other case ‘in which the
testimony of a witnes’s may be required under the provisions        of this
,Code. . me .‘I (Underscoring added.)

                                   - 222 -
Honorable   Richard M. Price,     Page 3 (~-48)


    It Is observed that the subpoenas are authorized in "any...
case in which the testimony of a witness may be required under
the provisions   oft this Code."   A sanity hearing held under the
provisions   of Article   46.02, Section 3 is a "case" provided for
by the code in which "testimony...may       be required".   Accordingly,
an out-of-county    witness subpoenaed to testify     at such a fianity
hearing is entitled     to witness fees and mileage under Article
35.27, to be paid by the State.       (It should, however, be observed
that although fees are authorized for sanity hearing witnesses,
there is presently no appropriation      for payment.)
                         SUMMARY
         An attorney appointed under Article    46,02, Section       8,
   "2 .C.P., to represent a person previously
   V.                                             acquitted   of    a
   criminal offense by reason of insanity and committed to           a
   state mental hospital,   is not entitled   to compensation      from
   the state or county for representing     such person under      such
   a polntment at a subsequent sanity hearing under Article
   48.02, Section 3, V.C.C.P.
   (2)   Out-of-county witnesses appearing at such sani.ty,hearings
   in response to a subpoena are entitled   to witness fees and
   mileage under the provisions  of Article  35-27, V,C,C.P.,   to
   be paid by the State,

                                                    6 very truly,


                                                           C. MARTIN
                                                    rney   General of Texas

Prepared by R. L. Lattimore and
Lonny F. Zwiener
Assistant Attorneys General
APPROVED:
OPIRIOR COMMITTRR
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Douglas Chfbton
Monroe Clayton
Howard Fender
Harold Kennedy
STAFF LEGALASSISTANT
A. 3. Carubbi, Jr,

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