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                                  The Attorney        General of Texas

JIM MAlTOX                                        AulFust22, 1986
AttorneyGeneral


Supreme Court Building            Honorable Allen Ross Hightower      Opinion No. JM-537
P. 0. Box 12549                   Chairman
Austin, TX. 7071% 2548            Committee on Law Enforcement        Re: Payment of attorneys' fees,
512,475.2501
                                  Texas House of Representatives      investigation costs, and expert
Telex 910/97613S7
Telecopier   512I475-0266
                                  P. 0. Box 2910                      witness fees under article 26.055
                                  Austin, Texas   78769               of the Texas Code of Criminal
                                                                      Procedure
714 Jackson, Suite 7W
Dallas, TX. 75202-4506
                                  Dear Representative Rightower:
214i742.9944

                                        You ask several questions about article 26.055 of the Texas Code
4824 Alberta Ave.. Suite 180      of Criminal Procedure. Article 26.055 provides for attorneys' fees
El Paso, TX. 79905-2793           and for reimbursement of particular expenses of attorneys appointed to
915/533alS4                       defend certain prisoners who commit crimes while in the custody of the
                                  Texas Department of Corrections. You indicate that a difference of
,,ml    Texas. suite 700
                                  opinion exists among the judges in Anderson County over the proper
       don, TX. 77002-3111        payment of attorneys' fees, investigation costs, and expert witness
i ,~/2255886                      fees under article! 26.055. Apparently, judges differ as to what
                                  constitutes reasomble attorneys' fees. Some judges also refuse to
                                  approve total investigation costs and expert witness fees which exceed
906 Broadway, Suite 312
Lubbock. TX. 79401-3479
                                  $500.   This amount :isthe maximum fixed by statute for investigation
9061747-5238                      costs and expert witness fees in cases not involving the Texas
                                  Department of Corrections prisoners covered by article 26.055.
                                  See Code Crim. Pro':. art. 26.05, §l(d). Accordingly, your questions
4309 N. Tenth. Suite B
                                  Guire    analysis of how articles 26.055 and 26.05 apply.
McAllen, TX. 79501-1885
512692-4547
                                       Article 26.055 provides, in full:
    200 Main Plaza, Suite 400                  sec. 1. A county in which a facility of the
    San Antonio, TX. 79205.2797
                                            Texas Department of Corrections is located shall
    51212254191
                                            pay from its general fund only the first $250 of
                                            the aggrc!g;ate
                                                          sum allowed and awarded by the court
    An Equal Opportunity/                   for attorneys' fees under Article 26.05 toward
    Affirmative Action Employer             defending;a prisoner committed to that facility who
                                            is being prosecuted for an offense committed in
                                            that county while in the custody of the department
                                            if the Ixisoner was originally committed for an
                                            offense c.ommittedin another county.

                                               Sec. 12. If the fees awarded for court-
                                            appointei.counsel in a case covered by Section 1 of




                                                           p. 2471
                                                                     .

Honorable Allen Ross Hightouer - Page 2   (JM-537)




          this article excetzd $250, the court shall certify
          the amount in exct!ssof $250 to the Comptroller of
          Public Accounts elf the State of Texas.        The
          comptroller shall issue a warrant to the court-
          appointed counsel in the amount certified to the
          comptroller by the court.

             Sec. 3. (a) In the defense of a prosecution of
          an offense committed while the actor was a prisoner
          in the custody of the Texas Department of
          Corrections, the state shall reimburse a counsel
          appointed to defend the actor for expenses incurred
          by the counsel, in an amount that the court
          determines to be reasonable. for payment of:

            (1) salaries %nd expenses of foreign language
         interpreters and interpreters for deaf persons
         whose services arc!necessary to the defense;

             (2) consultatkn     fees   of    experts   whose
          assistance is dircztly related to the defense;

             (3) travel expanses for witnesses;
                                                                -.
             (4) compensatkbn of witnesses;

             (5) the cost of preparation of a statement of
          facts and a transcript of the trial for purposes of
          appeal; and

             (6) food, lod@g,    and travel expenses incurred
          by the defense s:ounsel and staff during travel
          essential to the defense, calculated on the same
          basis as expenses incurred by the prosecutor's
          staff related to Izssentialtravel are calculated.

             (b) The trial court shall certify the amount of
          reimbursement for expenses under this section to
          the Comptroller of Public Accounts of the State of
          Texas. The comp,:roller shall issue a warrant in
          that amount to t'he defense counsel or, if the
          comptroller determines that the amount certified by
          the trial court is unreasonable, in an amount that
          the comptroller dstermines to be reasonable.

             (c) Notwithstanding anything to the contrary
          contained in '&is Act, the reimbursement for
          expenses submittes by the defense counsel shall not
          exceed the amount ,thecounty would pay for the same




                             p. 2472
Honorable Allen Ross Highto'rer- Page 3 (JM-537)




         activity or serv:Lce,if that activity or service
         was not reimbursed by the state. The trial judge
         shall certify compliance with this paragraph upon
         request by the comptroller of public accounts.

     Article 26.055 provides for state contributions for the cost of
defending certain prisoners :Lncounties in which the facilities of the
Texas Department of Corrections are located. The county ordinarily
bears the cost of representing indigent defendants without state con-
tributions. See Code Crim. I?roc.art. 26.05. Cf. art. 26.041 (court-
appointed counsel in Harris County). You askabout       (1) attorneys'
fees and (2) investigatior.costs and expert witness fees in cases
involving the prisoners covered by article 26.055. As will be shown
in the discussion to follow, articles 26.05 and 26.055 are inter-
related.

     Section 1 of article 26.055 limits the liability of certain
counties to "the first $251)of the aggregate sum allowed and awarded
by the court for attorneys' fees under article 26.05." (Emphasis
.added). Article 26.05 sets :fortha somewhat flexible schedule for the
compensation of appointed czmsel.   Section 1 of article 26.05 directs
the court to fix "a reasonable fee" but sets a minimum amount for
representation in particular proceedings:

             (a) For each day or a fractional part thereof
          in court represerrting the accused, a reasonable
          fee to be set by ,thecourt 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;

             (c) For each day or a fractional part thereof
          in court representing the indigent in a habeas
          corpus hearing, E reasonable fee to be set by the
          court but in no ev,entto be less than $50:

             .   .   .   .

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

             (f) For the Ilrosecutionto a final conclusion
          of a bona fide appeal to the Court of Criminal




                             p. 2473
                                                                         .

Honorable Allen Ross Hightower - Page 4   (JM-537)




          Appeals in a case where the death penalty has been
          assessed, a reasonable fee to be set by the court
          but in no event to be less than $500.

Because article 26.055 refers directly to article 26.05, the amount of
fees allowed must be determined according to these sections of article
26.05. Accordingly, so long;as a court complies with the minimum fee
schedule, it has discretjon in determining what constitutes "a
reasonable fee" for an appointed attorney. -     See Attorney General
Opinion H-909 (1976).

     You also ask about reimbursement for investigation costs and
expert witness fees under article 26.055. Section 3(a) of article
26.055 provides that the state shall reimburse appointed counsel for
certain enumerated defense expenses. Unlike section 1 of article
26.055, section 3(a) of art:lcle 26.055 does not refer expressly to
article 26.05. Section 3(a:Iprovides simply for reimbursement "in an
amount that the court detrrmines to be reasonable. . . .- Section
3(c) of article.26.055, however, states that

          [nlotwithstanding anything     to   the   contrary
          contained in thd.s Act, the reimbursement for
          expenses submittei by the defense counsel shall
          not exceed the amtsuntthe county would pay for the
          same activity or-service, if that activity or
          service was not ;,eimbursed by the state. The
          trial judge shall certify compliance with this
          paragraph upon x'equest by the comptroller of
          public accounts. (Emphasis added).

Article 26.05 governs "the amount the county would pay for the same
activity or service" when that activity or service is not reimbursed
by the state.

     Article 26.05 provides for reimbursement for investigation costs
and expert witness fees in r;ectionl(d):

             For expenses incurred for purposes of investi-
          gation and expert testimony, a reasonable fee to
          be set by the court but in no event to exceed
          $500.

Section 3(c) of article 26.055 makes this limit applicable to article
26.055. Accordingly, within this $500 limit, the court has discretion
in determining reasonable rv$imbursementfor investigation costs and
expert witness fees. See Quin v. State, 608 S.W.2d 937, 938 (Tex.
Crim. App. 1980); Day7      State, 704 S.W.2d 438. 440 (Tex. App. -
                           --
                              v. State, 647 S.W.2d 306, 309 (Tex. App.
Amarillo 1986. no pet.); Hi:il.
- Corpus Christ1 1982, pet: for discretionary rev. ref'd); see also




                             p. 2474
Honorable Allen Ross Hightower - Page 5   (JM-537)




Reed v. State, 644 S.W.2d 479 (Tex. Crib. App. 1983); Volanty v.
State, 663 S.W.2d 897 (Tex. App. - Corpus Christ1 1983, pet. for
discretionary rev. ref'd).

                              SUMMARY

            The amount o!i attorneys fees, investigation
         costs, and expert witness fees allowed under
         article 26.055 of the Texas Code of Criminal
         Procedure must te determined within the limits
         specified in article 26.05 of the code. Within
         the limits set forth in article 26.05, the court
         has discretion :In determining what constitutes
         reasonable fees an,dcosts. .




                                        J k
                                        Very truly your ,


                                             k
                                        JIM     MATTOX
                                        Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney Genmeral

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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