The Honorable W. G. Woods,     Jr.         Opinion No. H-   298
Distri,ct Attorney
Chamberr County                            Re:   Appointment of counsel
P. 0. Bcw 431                                    to represent indigent
Liberty,   Texas 77575                           defendants, their fee6
                                                 and related questions.
Dear Mr.   Woods:

     You have asked us several questions concerning the appointment
and compensation of counsel to represent indigent defendants.   Your
first question ir:

           “1. Is it necessary f&r the attorney appointed
       by the court to represent an indigent d&fendant to
       be in the courtroom at the time of his appointment? I’

    There is no general strtute governing the procedure for the appoint-
ment of counsel.   Article 26.04, Vernodr    Texas Code of Criminal Pro-
cedure. provides for such.appointment at or prior to”arraignment when
the defendant is too poor to employ counsel. Otherwise, the right to
counsel has developed in ~mrious interpretations of the Sikth Amendment
to the Constitution of thenUnited States. Gideon v. Wainwright, 372 U.S.
335 (1963); Escobedo v. Illinois, 378 U.S. 478 (1964); Pointer v. Texas,
380 U.S. 400 (19661;Swan&n    v. Borler, 386 U.S. 258 (1967); Mempa v.
Rh&h, 389 U.S. 128 (1967); Argersinger    v. Hamlin, 407 U.S. 25 (1972).

    Payment of counsel is governed by Article 26.05 of the Code of
Criminal Procedure which, after itm latest amendment in 1973. now pro-
vides:

           “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 prorecution was instituted or
       habear corpur hearing held, awording    to the following
       rchedule:

                                     p. 1384
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        The Honorable W. CL Woods,     Jr.,   page 2    W29g)




                  “(a) For each day or a fractional part thereof in
              court representing the accused, a reasonable fee to
              be set by fhe court but ia no event to be leas &an $50;

                  ‘l(b) For each day in court representing the accured
              in a capital case, a reasonable fee to be ret by the court
              but in no event to be less than $250;

                  ‘l(e) For each day or a fractional psrt thereof in
               court  representing the indigent in.a habeas corpus
              hearing, l~r ea io na        b le
                                       fee to be set by the court but
              in no event to be lesr than $50;

                   l’(d) For expenree incurred for purporer of inveati-
               g.ation and expert testimony, a reasonable fee to be set
               by’the kourt but in no event to exceed $500;,

                   “(e) For’the prosecution to a final conclusion of
               a bona fide appeal to the Court of Criminal Appeals,
               a reasonable fee to be set by the court but in no event
               to be less than $350;

                   ‘l(f) For the prosecution to a final conclusion of
               a bona 5de appeal to the Court of Criminal Appeals
               in a case where jhe de&h peaalty bar been assessed,
               a ru~onable    fee to be set by the court but in no event
               to be less than $500.

                   “Sec. 2.   The minimum &e will be automatically
               allowed unless the trial judge orders more within
               five days of the judgment.

                       “Sec.   All payments made under the provisions
                               3.
               of this Article may. be included as costs safcourt.

                   “Sec. 4. An attorney may not receive more than
               one fee for eachday in cou&    regardlerr of tbe nuqxber
               of cases in which he appeara as appointed counsel on the
               Earn* day; ”




                                              p. 1385
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         The Honorable W. G. Woodr,         Jr.,   page 3    (H-298)




             There ir no requirement in the cases or the rtatutes that an attorney
         ba present in the courtroom at the time he ir appointed counsel for an
         indigent defendant. We therefore armwer your first question in the negative.

             Your    other three   questions,   dealing with the fees to be paid appointed
         counsel,    ask:

                     “2. Where the court appoint6 an attorney to
                 represent an indigent.defendant in all cameo, againrt
                 whom there are multiple indictments pending, and
                 the defandant enters  a plea of guilty on all casem
                 or just on some of them and the State dismisses
                 others, but all cases are disposed of before the court
                 during one day, or a fraction of one day, is that
                 attorney entitled to at least &a minimum fee of $50.00
                .par case on s cases?

                        “3. Where the attorney &at the court appoints
                    to represent an indigent defendant was already prerent
                    in the courtroom on other businers and is appointed by
                    the court and the case ia disposed of at a later date,
                    would the appointmeat of the attorn,ey by the court in
                    the courtroom in itself be considered as a compensabla
                    day under Art. 26.05, 5 1 (a), provided nothing further
                    warn done by the attorney other than his announcement
                    to the court that he would not waive his ten days allowed
                    to prepare for trial as provided in Ari. 26.04(b), C. C. P. 7

                         “4, Whera the attorney appointed by the court to
                    repreaent an indigent defendant was ~      already in the
                    courtrohn,    but was called to the courtroom by the Judge,
                    or undsr his direction, would the appointment of the
                    attorney by the court in tha courtroom    be in itself con-
                    ridered,ar a compensable day under Art. 26.05, 5 I(a),
                    provided nothing further was done by the attorney other
                    than   saying he would not waive his ten dayo allowed to
                    prepare for trial as provided in Art. 26.04 (b). Texas
                    Penal Code? ”




                                                   p. 1386
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            The Honorable   W. G. Woodr,   Jr.,   page 4    (H-298)




                In our opinion, Sec. 4 of Article 26.05 quoted above ,anawere
            your second question.    Regardleas of the number of caaea pending
            against the indigent defendant, if all are disposed of in one day, the
            appointed attorney may not receive more than one fee - “a reas,on-
            able fee to be set by the court but in no svent to bs less than $50.”
            And ace Attorney General Opinion C-639 (1966).

                Your third and fourth questions , in effect, ask whether there
            is dome minimum amount of time or work which counsel must perform
            before he is entitled to the foe provided for by Sot. I(a) of Art. 26.05.
            We think not. The fees of Article 26.05 are far lane than an attorney
            would normally charge a client.     Studiem conducted by the State Bar
            of Texas in rho 1960’s led to the conclusion in 1968 that a lawyer in
            private practice, bearing all the expenaer of maintaining an office,
            would have to charge a minimum fee of $40.00 per hour.        The Minimum
            Fee Schedule adopted by the Stats Bar of Texas in 1968 recommended
            a minimum fee of $250 for each day of trial of a civil cane in a district
            court. It ir apparent, then, that the minimum fee of $50 per day pro-
            vided by Art. 26.05 ir well below the recommended daily trial fee.
            The amendment* to Sec. 1, enacted in 1973 (Actr 1973, 63rd Leg., ch. 426,
            p. 1126) by making tho fee .payable for a fractional part of a day eeemr
            to recogniz,e that fact.

                 We are not preparid to ray that. an appointed ‘altorney who appcarr
            jn cour,t to represent his client, even though he was already present on
            other business, is not entitled to a fee. The act of appointment by
            Itself might not be a “day or a fractional part hereof in court rep
             resenting the accused, ” but, on thu other hand, it could involve l;hh+
            r-wpl.nditure of time in consulting with the accused as wou1.d the announce-
            men! lo the court that the accured would not waive (he time allowed for
            trial.     ,,:

                In Attorney Generals Opinion C-639 (1966) it wan raid:

                        “It is the opinion of thir office that a court
                    lppoi.nted attorney.  ,entitled to receive compenaa-
                    tion under the provirionr of Article 26.05, is
                    entitled to the feer li sled therei.n, regardlear of
                    the fact that his appearance may have been only
                    for a portion of a day.




                                                  p. 1387
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                The Honorable     W. G. Woodl,       Jr.,   page 5   (H-298)




                             “You are further 8dvircd th8t it io the opinion
                         of thia office th8t l8ld attorney ir entitlbd to raid
                         compenation      for each day in trial court reprelent-
                         ing the accused,    whether  for the purpore of arraign-
                         ment, anrwering docket call, for purposer of tkial
                         or for 8ny other wrae8r;Lnce in tii81 court reprcrent-
                         ing the 8ccured. ”

                    E8ch caee will have to depend on its own facto. However, if an
                appointed counrel 8pp88r8 in Court in hir C8p8City 8II repreaent8ti’Ve    for
                the indigent defendant he ie entitled to hir rtatutory compensation.    There
                8re no crlteri8 by which to determine what ia 8d whrt ir not enough
                representation and any other rule would ‘fly in the teeth of the statute.

                                              SUMMARY

                                It is not necemruy thrt counsel b? phyrically
                          prerent in court rt the time of hi6 8ppointment      to
                           reprerent    anindigent defendmt. He ir entitled to
                          hia rt8tutory fee any time he rpendr even a fractional
                          prrt of 8 &y reprerenting m indigent client, but he
                          ir not entitled to be prid more tb8n one much fee for
-   .----          -..   -.8lly ~_
                                 OPI dry.
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                                                             Very truly yoprr,




                                                             Attorney   Caner81   of Texas




                          k. YOIdK. Fiirtkrrirtnnt
                                   ‘- 1       \
                          XEND
                DAVID M. KENDALL,           Chairman
                Opinion Committee


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