                                    January    20.    1975


The Honorable   Jimmie  D. Oglesby                           Opinion   No.   H-    499
County Attorney
Midland County Courthouse                                    Re:   Whether a commissioners
Midland,  Texas   79701                                      court is required    to pay a fee
                                                             awarded   an attorney   for repre-
                                                             sentation  of an indigent defendant.

Dear   Mr.   Oglesby:

         You have requested         our opinion      on several    questions      arising   from
the following  situation:

                        A capital   murder     indictment       was    returned   in [a]
                  District    Court of Midland          County.    . . . The Judge . . .
                  appointed     two local attorneys          from the same law firm to
                  represent      the defendant.         It was the first capital case
                  tried i.n Midland       County under the new [“death penalty”]
                  stat&e?, and one of the first such cases tried in this
                  State.    Thereafter,         [the] attorneys     appeared     in Court
                  on pte-trial       matters      for fractional    portions    of two
                  days, and then spent eight days in actual jury selection
                  and trial.       On the first day of trial,         the Court,    on motion
                  of the defense,        struck from the indictment           the capital
                  punishment        feature,     and the balance of the tri.al was
                  conducted      under that ruling.          The jury convicted        thr
                  delrntlant    of murder wil:h malice and assessed                his
                  punishment        at twenty yrars confinement              Afl.er the
                  jury had returned          its verdict     and the judgment       of
                  conviction      [had been] entered,          a hearing    was held . . .
                  on the matter        oi the fee to be awarded          the attorneys     . . .
                  under Article        26.05, Sec. 2. . . . Apparently             no one . . .
                  [participated       at the hearing]       on behalf of the State or
                  County.




                                              p. 2246
The Honorable            Jimmie    D. Oglesby               page    2       (H-499)




                            At the conclusion    of [the] hearing,    the . . . Judge
                        set a fee of $10,000,   . . . $4,000 . . . for one lawyer
                        and $6,000 for the other.       The award of attorneys’
                        fees was made pursuant to Tex.        Code Crim.     Proc.
                        Ann.,   Art. 26.05,   $1, as amended       (Supp. 1973). . . .

                             The order of the . . . Judge was subsequently
                        presented     to the Midland     County Commissioners      Court
                        by the lawyers      who . . . demanded      payment.   The
                        County had initially       budgeted $10,000 for the entire
                        year of 1974 to pay court appointed        counsel in criminal
                        matters.      At the time the demand was made upon the
                        Court,    $1, 800 of that budget had already      been disbursed
                        in other cases,      leaving   only $8, 200 in the budget for
                        that purpose.      . . .

            Your      first   two questions      are:

                         1. Is any sort of Commissioners      Court action on this
                         matter   required?  If so, what action is the Court
                         required   to take?

                         2. Is the order of the Trial Judge conclusive   on the
                         County insofar  as the amount of tk fee he aet?    II
                         not, by what procedure   and by whom may it be
                         reviewed?

           The order awarding   attorneys’  fees is a determination     similar    in
nature to the determination     which a District   Judge makes when he sets
the salary to be paid by a county to an Adult Probation       Officer,    pursuant
to article    42.12 section 10, Tex.   Code Crim.   Proc.   The delegation      01
such a duty to a District    Judge is not unconstitutional.    Commissioners
Court    of Lubbock   County v. Mart@,     471 S. W. 2d 100 (Tex.   Civ. App.
Amarillo,          1971, writ ref.,       n. r. e.).

            Article       26.05,   Tex.    Code    Crim.           Proc.,      reads   (in pertinent   part)




                                                       p.    2247
The Honorable        Jimmie   D. Oglesby,     page      3    (H-499)




             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:

               (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:

             (b) For each day in court representing   the accused
        in a capital case, a reasonable  fee to be set by the
        court but in no event to be less than $250: . . . .

     In the Lubbock County case the appellate       court noticed that such
determinations     by judges carried   with them a presumption      of necessity
and reasonableness,       and held that in disputes  about the amount of
compensation     the burden rests with the resisting     commissioners     court
to show that the judges’ actions     were 90 unreasonable,     arbitrary   and
capricious    as to amount to an abuse of discretion.

     You have asked our opinion concerning       the “reasonableness”     of
the compensation   awarded,    particularly   with respect    to making an
award to two members      of the same firm,     consideration    by the judge
of time spent on out-of-court    preparation.    and the effect of striking
the capital punishment   feature   from the case in mid-trial.

     Whet~hrr the cast is regarded       as a capital case or a non-capit.al~
case,   articlr   26. 05. Tex. Code Crim.        Proc.,   specifics    only t,hc minimum
fees which the court. may fix.        Fee:s awarded     nerd on1.y bo reaaonablc.        WC
cannot resolve      disputed que,:dtions of fact, about the “rcasonabl,enesa”        of t.hc
action taken.     If the County believes     il. can sustain its burden of showing
here that the fees are unreasonable         it can insfitute    a declaratory    judgment
or decline    to pay and be subject 1.0 a mandamus         or other proceeding.




                                            p. 2248
The Honorable        Jimmie   D. Oglesby,       page     4     (H-499)




                          SUMMARY

               The   commissioners      court     of a county           is under   a
          duty to budget and order paid the amount of any reason-
          able attorney’s    fee properly     set by a criminal    court
          judge pursuant to article      26.05.    Tex. Code Grim.
          Proc.,    for the representation      of indigent  defendants.
          The trial judge’s     order can be overturned       only on a
           showing that it was 80 arbitrary,        unreasonable    and
          capricious    as to amount to an abuse of discretion.
           This office cannot resolve      disputed fact issues of
          this type which involve      the question    of the reason-
          ableness    of the fees set.

                                                  Very       truly    yours,




                                                  Attorney           General   of Texas

APPROVED:




DAVID     M.   KENDALL,       First   Assistant




7
Opinion    Committee




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