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        Flonorable Travis   S. Ware                  Opinion No. .ni-739
        Criminal District    Attorney
        P. 0. Box 10536                              Re: Whether au attorney appointed
        Lubbock, Texas      79408                    by a justice  of the peace to re-
                                                     present an indigent is entitled to
                                                     compensation if he does not appear
                                                     in court, and related questions

        Dear Mr. Ware:

             You ask the following      questions:

                       1. Is an attorney    appointed by a justice          of
                    the peace for an indigent     defendant entitled        to
                    compensation if he does not appear in court?

                       2. Does article    26.05,  section   l(d).   of. the
                    Code of Criminal Procedure allow for compensation
                    to an attorney appointed by a justice     of the peace
                    for research and Investigation     that the attorney
                    does on a case for an indigent defendant that is
                    not time spent in court?

                       3. Is an arraignment a court appearance that
                    is to be compensated under article 26.05 of the
                    Code of Criminal Procedure?

              Article   26.05 of the Code of Criminal Procedure        provides:

                       section    1. A counsel     appointed   to defend a
                    person    accused  of a felony       or a misdemeanor
                    punishable    by imprisoment,     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 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



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                                                                             -     .


            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  co 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 to 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
            number of cases in which he appears as appointed
            counsel on the same day. (Emphasis supplied).

      In Attorney       General Opinion E-909 (1976)     it was stated:

                 In Attorney General Opinion E-789 (1976).         we
            said that a court-appointed      attorney may not be
            compensated under article      26.05 if he does not
            gpear    in court.   Once he appears in court,       the
            judge must set a reasonable      fee for each day or
            fraction   thereof in court.    The statute does not
            state the factors which the judge may consider in
            setting    the fee.    but leaves    him considerable
            discretion   to value the attorney’s   respresentation
             [sic] of the accused.    (Emphasis supplied).

       We assume that your question        does not relate to appointment of an
 attorney to represent a defendant         on a trial   on its merits in justice


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Eonorable     Travis     S. Ware - Page 3   (JM-739)




court since the jurisdiction    of the justice court in criminal matters
is limited to cases where the punishment is by fine only.     Tex. Const.
art. V, 519.     In Attorney General Opinion C-654 (1966) it was noted
that article     2.09 of the Code of Criminal Procedure        designates
justices   of the peace as magistrates and in such capacity “way appoint
counsel   to represent   an accused in an examining trial    held by him
only . ” It is our opinion that appointed counsel is not entitled        to
compensation if he does not appear in court.

      Your second question   relates   to compensation of counsel under
section l(d) of article  26.05 for research and investigation  that does
not constitute  “time spent in court.”

      In Attorney        General Opinion H-909 (1976)   it was concluded:

              A fee awarded under article    25.06, section   l(a),
              Code of Criminal Procedure,       is not inherently
              unreasonable  because    the court   considered   time
              spent ou legal     research   and investigation      in
              establishing it.

See also      Attorney    General Opinion JM-537 (1986).

      Thus,      in setting     a’fee    for each day an attorney  appears in
court under        section   l(a)     of article 26.05, it is not   inherently
unreasonable        for the court to consider      time spent on research   and
investigation        in connection with the case.

      In reviewing your question regarding whether an arraignment is a
court appearance under article       26.05 we first  must determine what
transpires   at an arraignment.   Because you have asked about attorneys
appointed by justices    of the peace. we note that justices of the peace
do not conduct arraignments.      In Wood v. State, 515 S.W.2d 300, 303
(Tex. Crib. App. 1974). it was stated:

               The purpose of arraignment is to read the indict-
               ment to the accused, hear his plea thereto and fix
               his identity, Article  26.02. Vernon’s Ann. C.C.P.,
               and it usually     is the point       in the criminal
               proceedings at which the trial court determines if
               the accused has counsel and if appointment of
               counsel is necessary.    Therefore,     unless arraign-
               ment is waived, most careful        trial   judges make
               every effort   to see that arraignment occurs as
               early in the proceedings as possible.

      The time for holding an arraiguxent is governed by article            26.03
 of the Code of Criminal Procedure, providing:

                  No arraignment   shall take place  until   the
               expiration of at least two entire days after the
               day on which a copy of the indictment was served



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Ronorable   Travis   S. Ware - Page 4    (Jh-739)




            on the defendant, unless the right to such copy or
            to such delay be waived, or unless the defendant
            is ou bail.

       In Wood v. State, -.         it was pointed out that an arraiguwent
is one of the proceedings       that can be disposed      of at a pre-trial
hearing.     See Code Crix.    Proc.    art.  28.01.   As heretofore     noted,
counsel appointed to represent        an indigent defendant is entitled       to
his statutory    fee for any time spent in court, even a fractional        part
of a day. representing        an indigent     accused,  however,    he is not
entitled   to be paid more than one such fee for any one day. Attorney
General Opinion E-298 (1974).           We are of the opinion        that when
appointed counsel appears in court on behalf of the defendant at an
arraignment he is making an appearance "in court representing                the
accused" and is entitled    to be compensated under article      26.05.

                                   SUMMARY

                   Appointed counsel is not entitled    to coxpensa-
            tion under article     26.05 of the Code of Criminal
            Procedure if he does not appear in court on behalf
            of the accused.     In setting   a fee for each day or
            fractional    part thereof   in court representing    the
            accused,     a fee   is not inherently     unreasonable
            because    the court considered      time spent by the
            appointed attorney on legal research and investiga-
            tion.    Attorney General Opinion H-909 (1976).      When
            appointed counsel appears in court on behalf of the
            defendant at an arraignment he is entitled         to be
            compensated under article       26.05 of the Code of
            Criminal Procedure.

                                             ,   Very/~c$&



                                                 JIM        MATTOX
                                                 Attorney    General of Texas

NARYXRLLXR
Executive Assistant     Attorney   General

JUDGEZOLLIE STEAlUEy
Special Assistant Attorney     General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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