                THE       ATTOTZSET    GEXEK.%L
                             OF TEXclS

                                October   1.   1987




Honorable Emory C. Walton                         Opinion    No.   JM-803
Criminal District  Attorney
Eastland County Courthouse                        Re:    Whether a court-appointed
Eastland, Texas   76448                           counsel may be compensated       for
                                                  services   rendered and expenses
                                                  incurred   prior   to the time of
                                                  appointment    and related    ques-
                                                  tions

Dear Mr. Walton:

      You request    an opinion     concerning    the application    of article
26.05 of the Code of Criminal Procedure         to a claim for attorneys     fees
submitted   by an attorney      appointed    to defend   an indigent    criminal
defendant.    We provide  a chronology     of events in this matter based on
the information   you furnished    to us, as follows:

                                     Chronology

           January     3, 1986:        Defendant    is   one of      several
           persons     indicted      in   a complex       case    involving
           serious    felony    charges.      Attorney    whose fees are
           in question       appears    as co-counsel       shortly     after
           indictment.

           Early    1987:     Attorney   is left    as sole        counsel.
           after   co-counsel     is permitted   to withdraw.

           March 12.     1987:   Affidavit   is filed         by   attorney
           requesting    appointment   as counsel.

           April   1,   1987:  At pre-trial           hearing,  attorney
           announces    that he is appearing          for defendant   pro
           bono.


           April   2-3,    1987:    Following    hearing,  attorney     is
           appointed      to   represent     defendant,   as    indigent
           pursuant     to article    26.04 of the Code of Criminal
           Procedure.




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Honorable   Emory C. Ualton        - Page 2      (JM-803)




            April   15,    1987:    Attorney files     fee    request,
            stating   that he has represented       defendant     since
            September    1986,   and setting  forth,     “in   general
            terms, ” bas:s    for claim of $17,010.00     for counsel
            fees and expenses.

            April    15, 1987:    Visiting           judge   in      case   issues
            order   approving  fee request          in toto.

            May 8. 1987:     Attorney    submits judge’s    order as a
            claim to the county       auditor.     The county auditor
            declines     to  present    the    claim    to the   county
            commissioners    for approval      of payment because     of
            reservations    about the “nature        and amount of the
            claim.”

            May 18,    1987-June     5th,   1987:       Trial   of   defendant.

      You ask for     our opinion     on two questions:

                1.   Can      counsel,     who      has     represented       a
            defendant      at    various    stages      of    the    criminal
            proceedings      and is then appointed         by the court to
            represent      the    defendant      after     an evidentiary
            hearing    shortly     before   trial.     be compensated      for
            attorney    fees    and legal    services      he rendered     and
            reimbursed     for expenses he incurred          in the subject
            cause prior      to the time of his appointment             by the
            court as counsel       for the defendant?

                2.   Does the subject       claim for court appointed
            counsel    fees   and expenses      sufficiently       relate   to
            the statutory      requirements     for court ordered         com-
            pensation     based on days appointed          counsel    appears
            in court      and for     reimbursement       of   expenses     to
            require     submission     of   the claim       by the County
            Auditor   to the Commissioners        Court?

       Article    26.05     of    the Code of Criminal         Procedure    governs    the
payment of fees to counsel           appointed    to represent    indigents   in certain
cases,    including      those specified       in article    26.04 of the Code.        The
version      of  article       26.05   applicable     at   the   time    of  the   events
mentioned in your question           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




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    Eonorable   Emory C. Walton          - Page 3    (JM-803)




                prosecution         wss    instituted    or     habeas     corpus
                hearing held,        according    to the folloving     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;

                    (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;

                    (d) For   expenses   incurred     for purposes     of
                investigation    and expert   testimony,  a reasonable
                fee to be set by the court         but in no event     to
                exceed $500;

                    (e) For the prosecution  to 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 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 be set by the court but
                in no event to be less than $500.

                    Sec. 2.   The minimum fee will  be automatically
                allowed  unless   the trial judge orders more within
                five days of the judgment.

                      Sec.   3.    All   payments made under the provisions
                of    this   Article     may be included as costs of court.

                      Sec.   4.   An attorney may not receive    more than
                one    fee    for each day in court   regardless    of the




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Honorable    Emory C. Walton        - Page 4       (JM-803)




             number of cases in whicl              he   appears   as   appointed
             counsel on the same day.

Code Grim.       Proc.   art.    26.05.   See generally    Gray County v. Warner               6
Finney,    727    B.W.2d 633 (Tex. Civ. App. - Amarillo        1987, no writ)  for             a
discussion       of    the    factors   generally   considered   in determining                a
"reasonable       fee" under the statute.

        This office      has. on several       occasions,      considered     the application
of article       26.05.     See, e.g.,     Attorney     General Opinions MW-80 (1979);
H-909 (1976);        H-499 (1974).         The law delegates          to the judge        in the
case the power to decide              what fee is reasonable,            so long as the fee
finally      set    equals    at least       the    statutory       minimum and otherwise
complies with the statutes.               Smith v. Flack,        728 S.W.Zd 784, 791. (Tex.
Grim. App.        1987);     Attorney     General     Opinion      H-499    (1975);     see also
Commissioners        Court of Lubbock County v. Martin,                471 S.W.2d 100 (Tex.
Cl". App. - Amarillo            1971, writ ref'd        n.r.e.).       Both the courts        and
this    office     consistently       have viewed determinations             by judges      about
fees     as     "carrying       with    them     a presumption           of    necessity      and
reasonableness."          Attorney     General Opinion H-499; Lubbock County,                 471
S.W.2d at 108.          In disputes      about the amount of compensation               due, the
burden rests with a commissioners               court resisting        payment to show that
a judicial       determination      of a "reasonable"        fee in a particular         case is
so arbitrary,        unreasonable,      and capricious       as to amount to an abuse of
discretion.        Attorney     General Opinion H-499.

       More particularly,      a judicial     order     setting  a fee  in this
instance   has been issued.      In Attorney     General Opinion O-1847 (1940).
this office    was asked by a county attorney          to review the order of a
judge.    In response,    the attorney   general   declared:

              It is not within the proper scope of the functions
              of this department       to serve      as a quasi appellate
              tribunal   for the correction         of what are conceived
              to be errors        committed    by the courts       of   this
              state.    The method for        reviewing     and correcting
              such errors      does not lie       in an appeal      to this
              department      for    an    opinion      upon   a   disputed
              question,    but in action       by the proper     reviewing
              tribunal.




    1.  Article   26.05    has   been  substantially     changed,     effective
September 1, 1987.      See Acts 1987, 70th Leg.,    ch. 979,     13.  at 6674.
6678.   The changes areprospective    in application    only.




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Honorable    Emory C. Walton       - Page 5          (JM-803)




       A judge      has issued       an order      directing       the county       to pay a
specific      sum of money to an attorney,           based on a statutory          provision.
That order is subject,           of course,     to appellate        review in the courts,
and collateral        litigation      is possible.       As a matter of policy,            this
office     will    not     exercise     its   quasi-judicial          function     to   render
opinions     when matters are in litigation            before    the courts or have been
definitively       resolved       through    judicial       action.        Accordingly,       we
respectfully      decline      to address    your request        for an opinion        on this
matter.      -See Attorney      General Opinion JM-287 (1984).

                                        SUMMARY

                  The validity    of   a judicial        order         for  the
             payment of attorneys      fees    is a question           which is
             presently     the subject      of   adjudication            in  the
             courts,   and therefore     cannot be resolved             by this
             office.

                                                     J-&“Iw

                                                        Attorney   General   of   Texas

MARY KELLER
Executive Assistant        Attorney     General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney            General

RICK GILPIN
Chairman, Opinion        Committee

Prepared    by Don Bustion
Assistant    Attorney General




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