                           EA                     Y   GENERAL



                                   AUSTIN    1% -I?EXAS

  IWILL      WIILSON
AlTGRNEYGENERAt



                                 October 26, 1961

    Honorable Oscar M. Laurel               Opinion NO. ~~-1176
    District Attorney
    Dimmit, Webb, Jim Hogg and
      Zapata Counties                       Re:   Whether Section 1 of
    Laredo, Texas                                 Article @4a, C.C.P. is
                                                  mandatory or discretionary
                                                  in its application in view
                                                  of Section la having been
                                                  repealed by Acts of the
                                                  56th Legislature and re-
    Dear Mr. Laurel:                              lated questions.
           You have requested an opinion on the following
    questions:
                  "1. Whether Section 1 of Article &g&a,
                  C.C.P. is mandatory or discretionary in
                  its application in view of Section la
                  having been repealed by Acts of the 1959,
                  56th Legislature.
                  "2 . If the language of Section 1 of the
                  Article is mandatory in its application
                  so that the Commissioners Court is obli-
                  gated to pay the amounts provided therein
                  to defense counsel, then from what County
                  funds should such payments be made."
                  Article &&a   is as follows:
                     "Section 1. Whenever the court shall
                  appoint one or more counsel(s) to defend
                  any person or persons pursuant to law in
                  any felony case in this State, each counsel
                  may, at the discretion of the trial judge,
                  be paid a fee in the sum of Twenty-five
                  Dollars ($25) per day for each day such
                  appointed attorney is actually in trial
                  court representing the person he has been
                  appointed to represent. Provided, further,
                  that in all cases wherein a bona fide
                  appeal is actually prosecuted to a final
                  conclusion, each appointed counsel may be
Hon. Oscar M. Laurel        Page 2      Opinion No. ~~-1176

       paid One Hundred Dollars ($100) for said
       appeal. Provided, however, on pleas of
       quilty before the court, said appointed
       counsel may be paid Ten Dollars ($10) per
       case. The fee allowed counsel shall be
       paid by the county wherein such trial is
       held and such sum to be paid from,county
       funds, where such funds are available.
          "Sec. 1A. Repealed. Acts 1959, 56th
       Leg., 2nd C.S., p. 147, ch, 31 52.
         "Sec. 2. No such allowance shall be
      made unless an affidavit is filed with
      the clerk of the court by the defendant
      showing that he is wholly destitute of
      means to provide counsel, and that he has
      not been released on bail bond. As amended
      Acts 1959, 56th Leg. 2nd C.S., p. 147
      ch. 31 81."                                       r

       The original 494s Vernon's Annotated Criminal Code
was passed in 1951 by the 52nd Legislature. Section la
therein provided:
       "The Commissioners Court of any county
       in the State may determine within its
       discretion whether or not such county
       shall pay the fees provided herein."
       Acts 52nd Leg., 1951, ch. 19, P. 25.
       In 1959 the Legislature rewrote what was the entire
Chapter 19 of the 52nd Legislature (Article 494a). The
changes written into the Act were:
       1.   Raising the fee from $10.00 to $25.00
            per day in Section 1 and raising the fee
            on appeal from $25.00 to $100.00.
      2.    Adding the following sentence in Section 1:
            "Provided, however, on pleas of guilty
            before the court, said ap ointed counsel
            may be paid Ten Dollars (P 10) per case."
       3.   In Section 1 added the phrase:
            "where such funds are available"
            to the last sentence of Section 1 so
            that the sentence reads:
Hon. Oscar M. Laurel           Page 3     Opinion No. ~~-1176

              "The fee allowed counsel shall be paid
              by the County wherein such trial is held
              and such sum to be paid from county funds,
              where such funds are available."

         4.   Section la was expressly repealed by
              Section 2 of the amended chapter as
              differentiated from the amended Section 2
              of Article 494a, thus depriving the Com-
              missioners' Court of their former discretion.
       We conclude that the payment of the fees depends
upon two factors:

         1.   The discretion of the trial judge as
              set out in Section 1 of @&a and
         2.   The availability of such funds as set
              out in the last sentence of Section 1 as
              amended.
It would, therefore, appear that where the trial judge
has ordered such payment and where the county has avail-
able the money to pay the fee, such payment should be
made. No other conclusion can be reached because the
Legislature, by expressly repealing Section la, as set
out above, has removed the matter from the discretion of
the Commissioners' Court.
                         SUMMARY
         Section 1 of Article &&a makes it manda-
         tory for the county to pay the fees therein
         provided when such fees are ordered by the
         trial judge and such funds are available to
         the county.
                                Yours very truly,

                                   !jiEzLi;~
NVS:sh
                                   Assistant Attorn y General
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Vernon Teofan
Gordan Cass
W. Ray Scruggs                REVIEWED FOR THE ATTORNEY GENERAL
Ben Harrison                  BY: Houghton Brownlee, Jr.
