                       March 3, 1976



The Honorable George N. Rodriguez,     Jr.   opinion No. R-789
County Attorney
El Paso County                               Re: Whether a'court-
Room 201, City-County Building               appointed attorney
El Pa8o,  Texan 79901                        for an indigent
                                             defendant is entitled
                                             to compensation if
                                             he is not required
                                             to appear in court.
Dear Mr. Rodriguez:
       You have requested our opinion regarding whether a
court-appointed attorney for an indigent defendant is entitled
to compenration for him time from county funds under article
26.05,   Texae code of Criminal Procedure, if not required to
appear in court.
     Article 26.05 provides: .
             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
          acoueed, a reasonable fee to be set by
          the court but in no event ,to be less
          than $50;




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     The Honorable George N. Rodriguez, Jr. - page 2 (H-789)


                      (b) For each day in court repre-
              senting    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, a
               reasonable fee to be set by the court
               but in no event to be less than $50;
                    (6) For expenses incurred for
               purposes of investigation and expert
               testimony, a reasonable fee to be met by
               the court 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
               Lee to be mot by the court but in no
               event to bm less than $350;
                     (f) For the prosecution to a final
               conclusion of a bona fide appeal to the
               Court of Criminal Appeals in a case where
               the death penalty has been assessed, a
               reasonable fee to be met by the courtbut
               in no event to be less than $500.
          The statute does not provide expressly for the payment
     of attorney's fees at the trial court level when there is no
     court appearance. While Attorney General Opinion C-713~
     (19661, held that reimbursement is possible under article
     26.05 for certain expenses incurred in preparation for a
     trial, even when the accused is not actually tried, it
     indicated that the appointed attorney would not receive a
     fee for him services if the case were dismissed.
          The language of the statute itself supports this view.
     Subsectionm (a), (b) and (c) provide for payment of "a
     reasonable fee" based upon the appointed attorney's time in
     court. Subsections (e) and (f) provide for payment of a




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    . .




          The   sienorable   George   N.   Rodriguez, Jr. - page 3 m-789)


          "reasonable fee" in cases on appeal. If the Legislature had
          intended to compensate the attorney for his non-courtroom
          time in cases in addition to those on appeal, it seemingly
          would have specifically so provided.
                Furthermore, compensation for out-of-court time w0uia
          have to be made, if at all, pursuant to subsection (a), am
          wexpenmem  incurred." "Expense" is defined am
                        [tlhat which is expended, laid out or
                        consumed; an outlay; charge; cost; price,.
                        Black's Law Dictionary 687 (4th ed. 1951).

          We believe that subsection (d) is limited in its application
          to the reimbursement of expenses actually incurred by the
          attorney, and cannot be extended to compensate him for his
          out-of-court time. Thus, it is our opinion &at under present
          statutes a court-appointed attorney for an indigent at the
          trial court level is not entitled to compensation if he does
          not appear in court.
                                      SUMMARY
                        Under present statutes, a court-appointed
                        attorney for an indigent defendant at the
                        trial court level may not be compensated
                        under article 26.05, Texas Code of Crim-
                        inal Procedure, if the attorney does not
                        appear in court.




                                                 Attorney General of Texas




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The Honkable   George N. Rodriguez, Jr. - page 4 (H-789)




Opinion CoQmittea




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