When was a court-appointed attorney entitled to compensation for representing an indigent defendant in Texas?

Texas AG Opinion JM-739: Compensation for Appointed Counsel

Plain-English summary

A criminal district attorney asked when a lawyer appointed by a justice of the peace to represent an indigent defendant could be paid under article 26.05 of the Code of Criminal Procedure. The questions covered lawyers who did not appear in court, time spent on research and investigation, and appearances at arraignment.

The Attorney General concluded that appointed counsel was not entitled to article 26.05 compensation without appearing in court on the accused's behalf. The opinion explained that a justice of the peace acted as a magistrate and could appoint counsel for an examining trial, even though a justice court's criminal trial jurisdiction was limited to fine-only cases.

Research and investigation did not receive a separate award under the provision for investigation expenses and expert testimony. Instead, once the lawyer appeared in court, the court setting the fee for that day or part of a day could consider related legal research and investigation. The opinion described that consideration as not inherently unreasonable.

The opinion also concluded that arraignment counted as an appearance in court representing the accused. A lawyer who appeared for an indigent defendant at arraignment was therefore entitled to compensation under article 26.05, subject to the statute's rule against receiving more than one appearance fee for the same day.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could appointed counsel be paid without appearing in court?

No. The opinion concluded that article 26.05 did not entitle appointed counsel to compensation unless the lawyer appeared in court on behalf of the accused.

Could the court consider time spent on research and investigation?

Yes, when setting the fee for a day or part of a day that the lawyer appeared in court. The opinion concluded that a fee was not inherently unreasonable merely because the court considered related legal research and investigation.

Did an arraignment count as a compensable court appearance?

Yes. The opinion concluded that appointed counsel who appeared in court for the defendant at arraignment was representing the accused in court and was entitled to compensation under article 26.05.

Could a lawyer receive a separate appearance fee for every appointed case handled on the same day?

No. Article 26.05, as quoted in the opinion, prohibited an attorney from receiving more than one fee for a day in court regardless of the number of appointed cases in which the attorney appeared that day.

Background and statutory framework

Article 26.05 provided compensation from the county general fund for counsel appointed to defend a person accused of a felony or an imprisonable misdemeanor, or to represent an indigent person in a habeas corpus hearing. Its schedule included a reasonable fee for each day or part of a day in court, investigation and expert-testimony expenses, and appellate work. The quoted statute also set minimum fees and limited counsel to one in-court fee per day.

The opinion distinguished the work of a justice of the peace as a trial court from the justice's role as a magistrate. It stated that justice-court criminal jurisdiction was limited to fine-only cases, while article 2.09 designated justices of the peace as magistrates who could appoint counsel for an examining trial.

For arraignment, the opinion relied on Wood v. State, which described arraignment as the proceeding at which the indictment is read, the accused enters a plea, and identity is fixed. Because appointed counsel appearing at that proceeding was in court representing the accused, the opinion treated the appearance as compensable under article 26.05.

Citations and references

Statutory authorities:

• Code of Criminal Procedure article 26.05 (appointed-counsel compensation)
• Texas Constitution article V, section 19 (justice-court jurisdiction)
• Code of Criminal Procedure article 2.09 (justices of the peace as magistrates)
• Code of Criminal Procedure articles 26.02 and 26.03 (arraignment purpose and timing)
• Code of Criminal Procedure article 28.01 (pretrial proceedings)

Case:

• Wood v. State, 515 S.W.2d 300, 303 (Tex. Crim. App. 1974) (purpose and timing of arraignment)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0739
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0739.pdf

Original opinion text

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

THE ATTORNEY GENERAL
OF TEXAS

July 7, 1987

Honorable Travis S. Ware
Criminal District Attorney
P. O. Box 10536
Lubbock, Texas 79408

Opinion No. JM-739

Re: Whether an attorney appointed by a justice of the peace to represent 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 1(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 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 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 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 H-909 (1976) it was stated:

In Attorney General Opinion H-789 (1976), we said that a court-appointed attorney may not be compensated under article 26.05 if he does not appear 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 representation 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 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, § 19. 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 "may 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 1(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 26.05, section 1(a), Code of Criminal Procedure, is not inherently unreasonable because the court considered time spent on 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 1(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. Crim. App. 1974), it was stated:

The purpose of arraignment is to read the indictment 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 arraignment 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 arraignment 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 on the defendant, unless the right to such copy or to such delay be waived, or unless the defendant is on bail.

In Wood v. State, supra, it was pointed out that an arraignment is one of the proceedings that can be disposed of at a pre-trial hearing. See Code Crim. 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 H-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 compensation 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 investigation. 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 truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General