How are court-appointed attorney fees and investigation costs set when defending a Texas prison inmate charged with a crime committed in custody?

Texas AG Opinion JM-537: Appointed Counsel Fees

Plain-English summary

The chairman of a Texas House committee asked the Attorney General to sort out a dispute among the judges in Anderson County. The county is home to a Texas Department of Corrections facility, and when a prisoner there is prosecuted for a crime committed in custody, article 26.055 of the Code of Criminal Procedure governs how the appointed defense lawyer gets paid. The judges disagreed about what counted as reasonable attorneys' fees, and some refused to approve total investigation and expert witness costs above $500, the ceiling that applies in ordinary (non-prison) cases under article 26.05. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

The AG concluded that the two statutes work together, and that both attorneys' fees and cost reimbursements have to stay within the limits set by article 26.05. On attorneys' fees, section 1 of article 26.055 caps the county's own liability at the first $250 of the aggregate fees "allowed and awarded by the court for attorneys' fees under article 26.05," and any amount above $250 is certified to the Comptroller, who issues a warrant to the appointed counsel from state funds. Because article 26.055 points directly to article 26.05, the fee itself is set under article 26.05's schedule, which fixes minimum amounts (for example, at least $50 for a day in court, at least $250 a day in a capital case, and at least $350 for an appeal). As long as a court honors those minimums, it has discretion to decide what a reasonable fee is. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

On investigation costs and expert witness fees, the analysis took one more step. Section 3(a) of article 26.055 says the state reimburses appointed counsel for certain listed expenses in an amount the court finds reasonable, and unlike the fee provision it does not expressly mention article 26.05. But section 3(c) says that, despite anything to the contrary, the reimbursement cannot exceed what the county would pay for the same activity if the state were not reimbursing it, and the trial judge must certify compliance. Article 26.05 governs that county amount, and its section 1(d) caps investigation and expert witness fees at $500. So the $500 limit carries over to article 26.055 cases, and within that ceiling the court has discretion to set reasonable amounts. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

Currency note

This opinion was issued in 1986. The dollar figures and fee schedules it discusses have since been changed by the Legislature, and Texas has since overhauled how it funds and oversees indigent defense. The Texas Department of Corrections has also been reorganized into the Department of Criminal Justice. Treat this page as historical context, not current legal advice. Verify the current statutes and fee limits before relying on any specific number mentioned here.

Common questions

Who actually pays a lawyer appointed to defend a state prisoner charged with a new crime committed in prison?

Both the county and the state. The AG explained that under section 1 of article 26.055, the county pays only the first $250 of the aggregate attorneys' fees awarded under article 26.05, and the court certifies any excess to the Comptroller of Public Accounts, who issues a state warrant to the appointed counsel for the rest. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

How does a judge decide what a reasonable attorney's fee is in these cases?

By applying article 26.05's schedule. The AG concluded that because article 26.055 refers directly to article 26.05, the fee must be figured under that schedule, which sets minimum amounts for different kinds of proceedings. So long as the court meets those minimums, it has discretion to determine what constitutes a reasonable fee. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

Is there a cap on investigation costs and expert witness fees?

Yes, $500. The AG concluded that section 3(c) of article 26.055 limits reimbursement to what the county would pay for the same service, and article 26.05, section 1(d) sets that at a maximum of $500 for investigation and expert testimony. Within that limit, the court decides a reasonable amount. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

Why were the judges split in the first place?

Because article 26.055 sets its own reasonableness standard for expenses without expressly repeating article 26.05's dollar cap, so it was not obvious on the face of the statute whether the $500 ceiling applied to prison-defense cases. The AG bridged that gap through section 3(c), which ties reimbursement to what the county would otherwise pay, an amount that article 26.05 caps at $500. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

Background and statutory framework

A county ordinarily bears the cost of representing indigent defendants without state contributions (article 26.05; compare article 26.041 for Harris County). Article 26.055 is an exception: it provides state contributions toward the cost of defending certain prisoners in counties where Department of Corrections facilities are located. Section 1 limits the county's liability to the first $250 of the aggregate attorneys' fees awarded under article 26.05 and routes the excess to the Comptroller for payment. Section 3(a) directs the state to reimburse appointed counsel for enumerated expenses (interpreter costs, expert consultation fees, witness travel and compensation, statement-of-facts and transcript costs, and defense travel expenses) in an amount the court finds reasonable. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

The interpretive key was that article 26.055 repeatedly borrows article 26.05's limits. Article 26.05, section 1 sets a flexible fee schedule with minimum amounts, and its section 1(d) caps investigation and expert witness fees at $500. Because section 1 of article 26.055 expressly ties attorneys' fees to article 26.05, and because section 3(c) of article 26.055 ties expense reimbursement to what the county would pay (an amount article 26.05 governs), both categories fall under article 26.05's limits, leaving the court discretion within them. The AG cited a prior opinion (H-909) for the discretion point and several appellate decisions, including Quin v. State, Hill v. State, and Volanty v. State, on the trial court's authority over investigation and expert costs. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

Citations and references

The opinion cited the following authorities. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

Statutory provisions:

• Tex. Code Crim. Proc. art. 26.055 (state reimbursement for defending Department of Corrections prisoners), §§ 1, 3(a), 3(c)
• Tex. Code Crim. Proc. art. 26.05, § 1(a)-(f) (compensation of appointed counsel); § 1(d) ($500 investigation and expert witness limit)
• Tex. Code Crim. Proc. art. 26.041 (court-appointed counsel in Harris County)

Cases:

• Quin v. State, 608 S.W.2d 937 (Tex. Crim. App. 1980)
• Hill v. State, 647 S.W.2d 306 (Tex. App. - Corpus Christi 1982, pet. ref'd)
• Volanty v. State, 663 S.W.2d 897 (Tex. App. - Corpus Christi 1983, pet. ref'd)

The opinion also cited Day v. State, 704 S.W.2d 438 (Tex. App. - Amarillo 1986), Reed v. State, 644 S.W.2d 479 (Tex. Crim. App. 1983), and Attorney General Opinion H-909 (1976); those appear in the reproduced text below.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0537
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1986/jm0537.pdf

Original opinion text

Best-effort transcription from a scanned PDF text layer. Minor OCR errors may remain; the linked PDF is authoritative.

The Attorney General of Texas

August 22, 1986

JIM MATTOX
Attorney General

Honorable Allen Ross Hightower
Chairman
Committee on Law Enforcement
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78769

Opinion No. JM-537

Re: Payment of attorneys' fees, investigation costs, and expert witness fees under article 26.055 of the Texas Code of Criminal Procedure

Dear Representative Hightower:

You ask several questions about article 26.055 of the Texas Code of Criminal Procedure. Article 26.055 provides for attorneys' fees and for reimbursement of particular expenses of attorneys appointed to defend certain prisoners who commit crimes while in the custody of the Texas Department of Corrections. You indicate that a difference of opinion exists among the judges in Anderson County over the proper payment of attorneys' fees, investigation costs, and expert witness fees under article 26.055. Apparently, judges differ as to what constitutes reasonable attorneys' fees. Some judges also refuse to approve total investigation costs and expert witness fees which exceed $500. This amount is the maximum fixed by statute for investigation costs and expert witness fees in cases not involving the Texas Department of Corrections prisoners covered by article 26.055. See Code Crim. Proc. art. 26.05, § 1(d). Accordingly, your questions require analysis of how articles 26.055 and 26.05 apply.

Article 26.055 provides, in full:

Sec. 1. A county in which a facility of the Texas Department of Corrections is located shall pay from its general fund only the first $250 of the aggregate sum allowed and awarded by the court for attorneys' fees under Article 26.05 toward defending a prisoner committed to that facility who is being prosecuted for an offense committed in that county while in the custody of the department if the prisoner was originally committed for an offense committed in another county.

Sec. 2. If the fees awarded for court-appointed counsel in a case covered by Section 1 of this article exceed $250, the court shall certify the amount in excess of $250 to the Comptroller of Public Accounts of the State of Texas. The comptroller shall issue a warrant to the court-appointed counsel in the amount certified to the comptroller by the court.

Sec. 3. (a) In the defense of a prosecution of an offense committed while the actor was a prisoner in the custody of the Texas Department of Corrections, the state shall reimburse a counsel appointed to defend the actor for expenses incurred by the counsel, in an amount that the court determines to be reasonable, for payment of:

(1) salaries and expenses of foreign language interpreters and interpreters for deaf persons whose services are necessary to the defense;

(2) consultation fees of experts whose assistance is directly related to the defense;

(3) travel expenses for witnesses;

(4) compensation of witnesses;

(5) the cost of preparation of a statement of facts and a transcript of the trial for purposes of appeal; and

(6) food, lodging, and travel expenses incurred by the defense counsel and staff during travel essential to the defense, calculated on the same basis as expenses incurred by the prosecutor's staff related to essential travel are calculated.

(b) The trial court shall certify the amount of reimbursement for expenses under this section to the Comptroller of Public Accounts of the State of Texas. The comptroller shall issue a warrant in that amount to the defense counsel or, if the comptroller determines that the amount certified by the trial court is unreasonable, in an amount that the comptroller determines to be reasonable.

(c) Notwithstanding anything to the contrary contained in this Act, the reimbursement for expenses submitted by the defense counsel shall not exceed the amount the county would pay for the same activity or service, if that activity or service was not reimbursed by the state. The trial judge shall certify compliance with this paragraph upon request by the comptroller of public accounts.

Article 26.055 provides for state contributions for the cost of defending certain prisoners in counties in which the facilities of the Texas Department of Corrections are located. The county ordinarily bears the cost of representing indigent defendants without state contributions. See Code Crim. Proc. art. 26.05. Cf. art. 26.041 (court-appointed counsel in Harris County). You ask about (1) attorneys' fees and (2) investigation costs and expert witness fees in cases involving the prisoners covered by article 26.055. As will be shown in the discussion to follow, articles 26.05 and 26.055 are interrelated.

Section 1 of article 26.055 limits the liability of certain counties to "the first $250 of the aggregate sum allowed and awarded by the court for attorneys' fees under article 26.05." (Emphasis added). Article 26.05 sets forth a somewhat flexible schedule for the compensation of appointed counsel. Section 1 of article 26.05 directs the court to fix "a reasonable fee" but sets a minimum amount for representation in particular proceedings:

(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;

. . . .

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

Because article 26.055 refers directly to article 26.05, the amount of fees allowed must be determined according to these sections of article 26.05. Accordingly, so long as a court complies with the minimum fee schedule, it has discretion in determining what constitutes "a reasonable fee" for an appointed attorney. See Attorney General Opinion H-909 (1976).

You also ask about reimbursement for investigation costs and expert witness fees under article 26.055. Section 3(a) of article 26.055 provides that the state shall reimburse appointed counsel for certain enumerated defense expenses. Unlike section 1 of article 26.055, section 3(a) of article 26.055 does not refer expressly to article 26.05. Section 3(a) provides simply for reimbursement "in an amount that the court determines to be reasonable. . . ." Section 3(c) of article 26.055, however, states that

[n]otwithstanding anything to the contrary contained in this Act, the reimbursement for expenses submitted by the defense counsel shall not exceed the amount the county would pay for the same activity or service, if that activity or service was not reimbursed by the state. The trial judge shall certify compliance with this paragraph upon request by the comptroller of public accounts. (Emphasis added).

Article 26.05 governs "the amount the county would pay for the same activity or service" when that activity or service is not reimbursed by the state.

Article 26.05 provides for reimbursement for investigation costs and expert witness fees in section 1(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.

Section 3(c) of article 26.055 makes this limit applicable to article 26.055. Accordingly, within this $500 limit, the court has discretion in determining reasonable reimbursement for investigation costs and expert witness fees. See Quin v. State, 608 S.W.2d 937, 938 (Tex. Crim. App. 1980); Day v. State, 704 S.W.2d 438, 440 (Tex. App. - Amarillo 1986, no pet.); Hill v. State, 647 S.W.2d 306, 309 (Tex. App. - Corpus Christi 1982, pet. for discretionary rev. ref'd); see also Reed v. State, 644 S.W.2d 479 (Tex. Crim. App. 1983); Volanty v. State, 663 S.W.2d 897 (Tex. App. - Corpus Christi 1983, pet. for discretionary rev. ref'd).

SUMMARY

The amount of attorneys' fees, investigation costs, and expert witness fees allowed under article 26.055 of the Texas Code of Criminal Procedure must be determined within the limits specified in article 26.05 of the code. Within the limits set forth in article 26.05, the court has discretion in determining what constitutes reasonable fees and costs.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General