                                     June 2C, 1966




             Honorable Joe Resweber            Opinion    Ro. C-713
             County .Attorney
             Harris County                     Re: Construction    of Article
             Houston, Texas                    26.04,  Vernon’s Code of criminal
                                               Procedure,  In reference   to
                                               fee8 of attorney8 appointed to
                                               repreeent defendants.who    are
             Dear Mr. Reeweber:                too poor to employ counsel.
                   Your opinion   request   to this   office   poser   ,tho   r0u0ring
             quertions:
                              "1.   Article  26.04,  Texas Code o? Crimiarl
                  Procedure,     1966, providea that 'whenever the Court
                  determines at an arraignment or at any time prior
                  to an arraignmentthat       an accueed charged with a
                  felony or a mlBdemeanor punlehabls by imprisonment
                  Is too poor to employ,counsel,       the Court &all
                  appoint one or more practicing       attorneys   to de-
                  fend  him.'     When ~two or#&e    attorneys are appointed
                  by the Court to defend a +i‘lngle defendant,        le each
                  attorney entitled      to receive a separate fee asp
                  eat out in the schedule under Article        26.051
                             “2.  In addition to the fees an attorney
                  may receive under Article     26.05  Section l(a),                     ,
                - 10 , l(d) or l(e),     C.C.P., 196k, ~for representing
                     In digent accused, may he receive additional       com-
                  gnsation    under Article  26.05, Section l(c)    for
.   .,            his time on an hourly basla, or some other method
         \        OS compensation for doing inrestigation     work In the
                  6ame case?

                            “3.  If an appointed attorney i8 entitled
                  to receive the additional   compensation lnquked
                  about in question Do. 2, is he entitled   to compen-
                  eatlon for time expended by employees In hip office
                  for doing investigation   work in the same case?
                            "4. Where a elngle indigent defendant’ts
                  accused of two or more felonles'and/or   nisdemeanor6
                ' puniehable by Imprisonment. and the'sune attorney i8
                  appointed to represent him In each case, may the
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Honorable       Joe Resweber,        page 2               (C-719)                  ‘:



          attorney be paid for his expeqses of investi   tion
          under Article 26.05,  Section l(c), incurred 8
          a case that is dismissed without trial?
                    ‘5.  Where two or more of the cases ,des-
          cribed in question 190. 4 involrlng  a single defan-
          dant are dismissed,  may the attorney recover ex-:
          penses incurred in each ca@e, up to $250.00, wh4n
          such might result In payment of more than $250.00
          for expenaes in the defense of a single defendant
          but In separate cases?
                       “6.Article   .26.05, Section 4, C.C.P.,
          1966, provides    that (an attorney may not receive
          more than one fee for each day In Court regardless~
          of the’ number of cases in which he appears ~a8
          appointed counsel on the same drJT.1 Whera an
          appointed attorney appears In more than one court,
          whether District    Court, County Court or Justice
          Court, on the same day in defense of one or more
          defendants in different      cases, may he receive
          more than one fee?                                 .,.
                                                             .~’
                    "7.   Under Section 2 bf A&le        26.05,
          C.C.P.,  1966, the minimum fee is automatically        allowed
          urilesa the trial   judge orders: more within fir4 daya
          of judgment.    Hay more than the mlnimnmrfse be paid
          pursuant to a nunc pro tune order entered in the’.
          minutes st; the direction      of the Court?"
       A&.to the firet question,   it Is the opinion of’this
office,  that when two or more attorney6 are appointed by
the Court to defend a sing14 defendant, each l     ttomey    is
entitled   to receive a eeparate fee.    Article  26.04, Vemon’e
Code of Crlmlnal Procedve     provides,  in part that:    .
                    II
                          . . .one or more. . .attomeys   may be
                         appointed to defend an accused person,
                         in a given case.’   ($laphasla Adds+.),             ..~
      Article 26.05,             Section    1, Vernon's   code of Criminal
Procedure, provides              In part    that:
                    ” . . .a counsel          appointed to defend a
                     PertIOn                    ba ptid., . i” (Eapha6ls
                     Added)
          When these  two Articles    are construed together, ‘it
is obvious       that the Legislature    intend@ that each attorney
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   Honorable    Joe Resweber,   page 3           (C-713)


   appointed by the Court should be paid in accordance          with
   the provision8 of Article 26.05.
           Question two deals with Article     26.05,  Section 1
    (c),   Vernon’sCode of Criminal Procedure, which states
   with regard to compensation of coux1~4l~ “For expanses      in-
   curred for p     oses of investlgatlon    and expert t t
   not mm4 than"p 250.00~.     (Rmphasis added)     It is ths'
   that this provision   Is intended to relmburs4 the attorney
   for money paid,out   for purp0848    of investigation and ex-
   pert testimony and Is not to be construed as allowing
   additional  fees for service rendered to the Indigent.
            Question three Is not answered oinc4  question two
   Is answered In the negative.    However, the appointed
   attorney Is entitled   tomreimbursement of expenses of in-
   vestigation   or of exp4rt testimony whether incurred by
   hlms4lf or by his employ448   uorlclng under his direction.

            Question four a&s whether or not the lttomey          may
   be reimbursed under Article      26.05,   Motion l(c),   Vernon*8
   Code of Crlmlnal Procedure for 4xp4ns4s        in  ~484s which
   are Investigated     but dismiss4d without trial.       Wa held In
   Attorney General Opinion      Ho. c-657 that Section l(c) ,applles
   to examining trials, and that counsel who incurred ex-
   penses for investigation      and expert testimony are entitled
   to be reimbursed therefor      in accordance with said article.
   B'urthcrmore, when the court appoints an attorney to
   represent an accused person, it is his duty to make an in-
   vestigation    of the facts and otherwise prepare for trial.
   If the case Is dismissed the appointed attorney would not
   receive a fee and the Legislature        could not ha-14 intended
   that the appointed attomay in such cases would not be
   reimbursed for money actually       spent in praparatlon    for the
   trial.    We therefore    are of the oplnlon that reLmbursement
   under Section l(c)     does not depend upon whether the accused
   person is actually     tried.
            Qus$tion five inquires whether or not the attorney
   nay receive~his    expenses under Article      26.05,   Section l(c),
   Vernon's Code of Criminal Procedure for each of the case6
   hc investigates    when the defendant is accused of two or
   more felonies    and/or misdemeanors punishable by imprison-
   mant. If the different       offenses   arise out of the sane
   situation   so that the facts     and expert testimony for one
   offense would suffice     for a defense of all the offenses,
   the attorney's    recovery of exp4nses under Section l(c)
~" would be limited to $250.00.         However, when several cases
   are Involved,    each of which arises out of a separate and
   distinct   set of facts,   the attorney     msy recover   up to $250.00
   for expenses Incurred for each case which arises out of a
   separate and distinct     fact situation,     and which requires
   separate Investigation     and expert testimony.
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        Honorable   Joe Resweber,     page 4               (C-713)


              Question six deals with the proper construction        of
        Section four of Article   26.05 which
                                         -   - reads: _.  'tAn attorney
                                                              _ ~,
        may not receive.more   than one fee for eacn day &n Court,
        regardless   of the number of cases in which he appears
        as appointed counsel on the same day."
                                                                 '.
              In Attorney General Opinion Ro. c-639, dealing with
        compensation of an attorney under.Article      26.05 it was
        held that:                     .

                        "If such attorney represents more
                         than one defendant on the same day,
                         he is entitled  to compensation only             .'
                         once on that day."

              Keeping this holding in mind,snd reading Sectlron 4
        exactly as it is written,     you are advlsed that an attorney           ,'
        is entitled  toto,compensation only once per day in the re-             :
        presentation  of indigent    defendants,, irrespective of
        whether or not he nay represent several diffarqnt,'.defen-
        dants In several different     courts.
              Question seven inquires whether payment o&ore   than
        the minimum fee is proper pursuant to an order of the
        court entered of record nunc pro tune mom than five;days
        after judgment.
             Section   2 of Article    26.05    reads as follows:

                        "The minimum fee will be automatically
                         allowed unless the trial judge orders
                         more uithln five days of the judgment."
             In 33 Tex.   Jur.   26 516,   it   Is said:
                        "When at a particular   term, a court
                         rendered a judgment that falled of
                         entry in the mlnutes or was not correct-
                         ly entered therein,  the Courtmay at
                         a subsequent tern, on proper evidence                 .1
                         ascertain  the facts and make an entry
                         nunc pro tune; the effect   thereof is
                        .as if the judgment has been properly                         I.
                         entered in due course."
             On page 519,   it   is added that:.
                        "Usually,  a judgment nunc pro tune lies
                         to correct a judgment actually  rendered
                         at the proper tine but not properly
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         Honorable       Jo4 Resweber, page 5               (C-713)

                                                                                 *
                             antercd in the record.     Therefore, -un-
                             less the judgment sought to be entered
                             was actually   rendered at a preceding
                             term, a judgment nunc pro tune is
                             generally   not prop4r.   Moreovbr, a
                             judgment nunc pro tune presupposes the
                             rendition   of a previous valid judgment.”
               The above statements explain that th4 purpose:,or a
         nun pro tunc,entry    and its only legitAmat4 function is
         to evidence correctly    in the records a court judgment,
         decree, or order actually    made by It, but, for some reason,              .
         not entered of record at the proper time.       You are advlsed
         that a nunc pro tune entry of an order of the trial
         judge may be made to reflect     t.hat payment of fees in ex-
         cess of the minimum was properly ordered within five days
         of the judgment.    If the trial    judge did not,,withln five
         days of the judgment, order more thsn the minImum foe,
         an entry of an order nunc pro tune would not be proper.
                                      SUMBIARY
                                      ---em--
                             When two or more attorneys areezgrinted
                by the Co&t to defend’4 single defendant
                attorney is entitled   to receive a separate foe as
                set out in Article   26.05,Vernon’s Code of CtWLnal
                Procedure.
                         2. Section l(c)  of Article  26.05 is I.&
                tended to provide for the payment of expenses  in-
                curred by tht appointed counsel and is not avall-
                able as a means of extra compensatioh for services
                r4ndered to the indigent defendant.

                            3. The attorney      is   entitled   to reimburse-
                ment of expenses, whether the expenses are incurred
                by himself or by his employe4s working under his
                direction.
                          4;  An appointed attorney is entitled     to
                be paid for his expenses under Section l(d) of
                Article  26.05 whether the accused is put to trial.
                                                              .*
                          5.  The  attorney   nay receive  up to $250.00
                for expenses for each case which arises out of a
                separate and distinct    fact situatdron and which re-
                quires separate tivsstigation     and testimony.
                            6. Appointed    counsel Isentitled    to compen-
                satlon    only   once per day irrespective   of whether he
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         Honorable   Joe Reswebdr,   page 6              (C-713)


              nay represent ssveral dirrsr4nt       d4f6ndMtB In
              several dlffer4nt  courts.
                        7.. A nunc pro.tunc entry of an order of
              the trial judge may b4 made to reflect   that payment
              of fees in excess of the minimum was properly ordered
              within five d4ys of the judgment.    If the trial
              judge did not, within five days of the judgment,
              order nor-e than the minimum fee, an entry of an
              order nunc pro tune would not be proper.
                                          Yours   very   truly,
                                          WAGGonERCARR
                                          Attorney General of Texas



                                                lln sulli.Ym
                                           Assistant Attorney      General

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