Honorable Joe Resweber               Opinion No. C-763
County Attorney
Harris County Courthouse             Re:      What fee Is an appointed counsel
Houston, Texas                                entitled to under the provisions
                                              of Article 2605, Code of Criminal
                                              Procedure, when he appears in two
                                              or more cases before the Court
                                              of Criminal Appeals on the same
Dear Mr. Resweber:                            day?
     In your opinion.request to this office you ask what fee an
appointed counsel is entitled to receive under the provisions of
Article 26.05, Vernon's Code of Criminal Procedure, when he appears
in two or more cases before the Court of Criminal Appeals on the
same day.
     Article     26.05   reads as follows:
             "Sec. 1 A counsel appointed to defend a,
           person accused of a felony or a misdemeanor
           punishable by imprisonment shall be paid from
           the general fund of the county in which the
           prosecution was instituted according to the
           following schedule:
             (a) For each day in trial court representlng
           the accused, a fee of not less than $25.00 nor
           more than $50.00;
             (b) For each day in trial court representing the
           accused when the State has made known that it will
           seek the death penalty, a fee of not less than $25.00
           nor more than $100.00;
             (c) For expenses incurred for purposes of lnvestiga-
           tion and expert testimony, not more than $25O.OO;
                 (d) For the prosecution to a final conclusion of
               a bona fide appeal to the Court of Criminal'A peals,
               a fee of not less than'$lOO.OO nor more than $ 250,oo;
                 (e) 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 fee of not 1es.sthan $100.00 nor more than $500.00.
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Honorable Joe Resweber, Page 2 (Opinion No. c-768)


             "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
           number of cases in which he appears as appointed
           counsel on the same day."
     Section.4 of Article 26.05 states that an attorney may not
receive more than one See for each day in court, regardless of the
number of cases in which he appears as appointed counsel on the
same day.
     Subdivisions (d) and (e) of Section 1 of Article 26.05, both
refer to cases appealed to the Court of Criminal Appeals, and the
question Is whether Section 4 applies to these two subdivisions so
that an attorney who appears in two or more cases before the Court
of Criminal Appeals on the same day ia limited to one fee.
     It will be noticed that'ln both Subdivisions (a) and (b) of
Section 1 of Article 26.05 reads in part: "For each day in trial
      a fee of . . .' (Emphasis added).
. . . --

     Section 4 reads In part: "An attorney may not receive more than
one Pee for each &   in court. . .' (Emphasis supplied).
     Since both Subdivisions (d) and (e) are written in terms
of fees paid for the rosecution to a final conclusion of a bona
fide appeal and do no-fees            p-or    each day in court,
it is concluded that Section 4 applies only to subdivision (a)
and (b) of Section 1 of Article 26.05, where fees are provided
for each day in court, and not for the prosecution to a final
conclusion of a bona fide appeal to the Court of Criminal Aqqeals.~
     In a special commentary by Judge John F. Onion; Jr., in
Vernon's Code of Criminal Procedure, Article 26.05, he supports
this result by saying in part:
             "The Legislature did limit an appointed attorney
           to one fee for each day in court rega,rdlessof the
           number of cases on same day. This was necessary
           because of the inclusion of ja21 punishable mis-
           demeanors where an attorney might be appointed to
           10 to 20 cases in one day. Note that no distinction
           is made between pleas of guilty and not guilty in
           the pay schedule." (Emphasis supplied).
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Honorable Joe Resweber, Page 3 (Opinion No. C-768)


     It Is therefore our opinion that under the provisions of
Article 26.05, Vernon's Code of Criminal Procedure, an appointed
counsel is to be paid a separate See for each bona fide appeal
prosecuted to a final conclusion to the Court of Criminal Appeals,
irrespective of whether appointed counsel appears in two or more cases
before the Court of Criminal Appeals on the same day.
                            SUMMARY
          Under the provisions of Article 26.05, Vernon's
    Code of Criminal Procedure an appointed counsel is to be paid
    a separate fee for each bona fide appeal prosecuted to a
    final conclusion to the Court of Criminal Appeals, irres-
    pective of whether appointed counsel appears In two or
    more cases before the Court of Criminal Appeals on the same
    .day.
                                         Respectfully submitted,
                                         WAGGONER CARR'
                                         Attorney General of Texas




                                            Assistant Attorney General


APPROVED
OPINION COMMITTEE
W. V. Geppert, Chairman
Ronald Luna
Robert Owen
John Reeves
Gordon Houser
APPROVED FOR ATTORNEY GENERAL
BY: T. B. Wright




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