The Honorable Gene neatly             Opinion No. H-909
County Attorney
Wilbarger County                      Re: Compensation of
Vernon, Texas 76384                   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:


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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 deter-
mination 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 dis-
cretion. 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 out-
of-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., 18 A.L.R.3d 1074, 1104-
et seq. (1968).
-
     Your second question is:

          If an attorney billed himself and paid
          himself for legal research and investiga-
          tion 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)?



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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 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 reimburse-
                ment 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
                                                                                  t
                          billed to himself is not compensable under
                          article 26.05, section l(d).

                                               fiery   truly yours,




                                                Attorney General of Texas




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


APROVED:




    DAVID M.-KENDALL, First Assistant




    C. ROBERT IfEATIi,Chaunnan
    Opinion Committee

     jwb




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