Gray v. Robinson

744 S.W.2d 604, 1988 Tex. Crim. App. LEXIS 3, 1988 WL 1119

• Court: Court of Criminal Appeals of Texas
• Decided: January 13, 1988
• Docket: 69873
• Status: Published

Opinions

OPINION

WHITE, Judge.

This is an original mandamus action brought by a court-appointed criminal defense attorney (relator) seeking to compel the Commissioners Court of Eastland County (respondents) to pay $17,010.00 in attorney’s fees ordered by a district judge under the provisions of Article 26.05,¹ V.A.C.C.P. We will deny relief.

Disposition of this case requires an understanding of the following sequence of events. On January 3rd, 1986, defendant, Brenda Gail (Perry) Andrews, was one of several persons indicted in a complex felony case. Relator appeared as retained co-counsel for this defendant shortly after indictment. In early 1987, relator became sole counsel, after co-counsel was permitted to withdraw. On March 12, 1987² relator filed an affidavit requesting appointment as counsel. On April 1st, relator announced at a pre-trial hearing that he was appearing for defendant pro bono. Two days later an indigency hearing was held, defendant was found to be indigent and relator was officially appointed to represent defendant. See Article 26.04, V.A.C.C.P.

On April 15th, prior to trial, relator filed a fee request stating that he had represented defendant since September 1986 and requested $17.010.00 in attorney’s fees, travel expenses'and various other expenses. On the same day, a visiting district judge issued an order approving this fee request.³ This order was filed with the District Clerk on April 22nd, and on May 8th, relator submitted the order to the Eastland County Auditor. The auditor, finding that relator had only appeared in court for 3 days subsequent to formal appointment, did not formally submit relator’s claim to the respondents because of the amount of the order relative to the time spent in court. However, at some subsequent time, the respondents were presented with this order and refused to honor it.⁴

Defendant’s trial commenced on May 18th and concluded on June 5th. On June 9th relator filed another fee request in the amount of $13,250.00 for services rendered solely during the trial. Relator calculated his fees at a rate of $100.00 per hour. On this same day, June 9th, the visiting district judge who presided at trial ordered relator to be paid a total of $3,500.00, calculated at a rate of $250.00 per day of trial — the minimum rate under Article 26.05 for a capital case. This order was honored by respondents and the amount was paid to relator.

In the instant mandamus action, relator is seeking to compel respondents to pay the $17,010.50 pre-trial order. However, as evidenced by relator’s fee request and the court’s order, the majority of these fees were accumulated prior to April 3rd, the date relator was appointed to represent the defendant. Thus, we are presented with the question of whether the district judge had authority to order attorney’s fees for services rendered prior to appointment.

This appears to be a question of first impression. Article 26.05, V.A.C.C.P., which designates compensation of appointed counsel provides:

Section 1. A counsel appointed⁵ 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;

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(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.

Article 26.04, V.A.C.C.P., which designates when counsel is to be appointed to a defendant, states:

(a) Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.

Finally, Article 40.09, Subd. 5, V.A.C.C.P., which sets out the procedure for indigent defendants to obtain a free transcript on appeal, states:

If a party desires to have all or any portion of a transcription of a court reporter’s notes included in the record, he shall so designate with the clerk in writing and within the time required by Section 2 of this Article ... The court will order the reporter to make such a transcription without charge to appellant if the court finds, after a hearing in response to an affidavit filed by appellant ... that he is unable to pay or give security therefor.

These statutes have been consistently construed according to their clear, unambiguous and strict mandates, which is in keeping with the tight budgetary limitations of this State. Smith v. Flack, 728 S.W.2d 784, 789 (Tex.Cr.App.1987); Dickens v. Court of Appeals for Second Judicial District, 727 S.W.2d 542, 547 (Tex.Cr.App.1987). Under Article 26.05, an ap pointed attorney can only be compensated if he appears in court and will only be compensated once where he appears in court for two separate defendants or where he appears in court for a single defendant twice indicted. Freeman v. State, 556 S.W.2d 287, 302-303 (Tex.Cr.App.1977). See Tex.Atty.Gen.Op. No. H-298 (1974); Tex.Atty.Gen.Op. No. H-330 (1974). Concerning investigative and expert witness expenses, under section 1(d) of Article 26-05, appointed counsel can only be reimbursed for expenses actually incurred, and cannot be compensated under this section for legal research and trial preparation. Myre v. State, 545 S.W.2d 820, 826 (Tex.Cr.App.1977); Henriksen v. State, 500 S.W.2d 491, 494-495 (Tex.Cr.App.1973). See, Tex.Atty.Gen.Op. No. H-909 (1976).

Notice of indigency is a requirement that pervades the statutory scheme, and, likewise, the active, discretionary determination of the court is heavily relied upon for the appointment of counsel. See, Abdnor v. State, 712 S.W.2d 136, 141 (Tex.Cr.App.1986); Ex parte Bain, 568 S.W.2d 356 (Tex.Cr.App.1978); Castillo v. State, 571 S.W.2d 6, 7 (Tex.Cr.App.1978); Hoagland v. State, 541 S.W.2d 442 (Tex.Cr.App 1976); Shaw v. State, 539 S.W.2d 887 (Tex.Cr.App.1976); Weeks v. State, 521 S.W.2d 858 (Tex.Cr.App.1975); Foley v. State, 514 5.W.2d 449 (Tex.Cr.App.1974). See generally, 1 Texas Criminal Practice Guide, Sec. 1.03[l]-[4], p. 1-24.

There is no duty imposed on the trial court to appoint counsel until the defendant shows that he is indigent. The indigency determination is to be made on a case-by-case basis as of the time the issue is raised and not as of some prior or future time. Abdnor v. State, supra; Harriel v. State, 572 S.W.2d 535, 537 (Tex.Cr.App.1978); Barber v. State, 542 S.W.2d 412, 413 (Tex.Cr.App.1976). In order to make its determination of indigency, the trial court is authorized under Articles 26.04 and 40.-09, V.A.C.C.P., to conduct an evidentiary hearing. The court may conduct such hearings at any time during the proceedings when it is placed on notice that there may be a change in the financial or economic condition which would alter the accused’s indigency status. Foley v. State, supra. The trial court has no duty to appoint counsel where an indigent defendant has managed to retain counsel or where the defendant has made no showing of indigency. Harriel v. State, supra; Steel v. State, 453 S.W.2d 486, 487 (Tex.Cr.App.1970).

Thus, from the statutes governing the appointment of counsel to indigents emmanates a body of caselaw reinforcing the requirements of when and how counsel shall be appointed. These requirements are evidence of the importance placed on notice and formal appointment. Counsel is to be appointed only when indigency is shown and it follows that prior to such a showing counsel is not to be appointed or compensated by the State. See, Tex.Atty.Gen.Op. No. JM-803 (1987).⁶

We now hold that state funded attorney fees cannot be awarded for services rendered prior to the date that counsel is appointed to- represent an indigent. Before indigency is brought to the court’s attention or proven at a hearing, it is presumed that counsel has made the proper fee arrangements. Where counsel is already representing a client, fee arrangements are a private matter between client and counsel. District courts cannot carry the burden of ensuring that defense counsel receives compensation from his clients. Unless the court knows or reasonably should know of indigency, the court need not initiate an inquiry. We properly place the burden on the defendant and his counsel to bring indi-gency to the court’s attention.

In the instant case, relator wholeheartedly represented defendant without any mention of appointment or indigency. Relator, in fact, voluntarily took over as sole counsel for defendant when co-counsel withdrew and never requested appointment throughout months of representation. By all indications, it was only after counsel realized that defendant was not going to pay that he requested attorney fees for the work that he had completed. Thus, relator attempts to place the state in the precarious position of paying fees that he could not collect from his client. Such compensation is not contemplated by Article 26.05, V.A.C.C.P.

The trial court had no authority to order payment of attorney fees accumulated pri- or to formal appointment. Thus, we find that the portion of the judges’ order awarding pre-appointment fees is void.

Nothing in this opinion precludes relator from re-petitioning the district judge for any and all post-appointment court appearances for which he has not yet been compensated. Nor does our holding today limit the district judge’s authority under Article 26.05, V.A.C.C.P. to order any reasonable post-appointment fee.

The application is denied.

DUNCAN, J., concurs in result. CLINTON, J., dissents.

1 . Article 26.05 has been substantially changed, effective September 1, 1987. See Acts 1987, 70th Leg., Ch. 979, sec. 3 at 6674, 6678. These changes are prospective in application and, thus, have no effect on the instant case.

2 . All dates refer to 1987 unless noted otherwise.

3 . This visiting judge was initially assigned to preside over the trial after the regular district judge recused himself, but, due to a schedule conflict, was later unable to preside at the trial. It is noted that five different judges were assigned at various times to hear the many pre-trial matters raised and the actual trial of the subject criminal case.

4 .Respondents seize on this fact to argue that since the order was not "properly presented” to the Commissioners Court, this request for a mandamus is moot. Such an assertion is invalid. The presentment to and rejection by the auditor is sufficient predicate for the instant suit. See, Art. 1573, V.T.C.S. (while in effect at the time of this case, this Article was repealed and replaced by Section 81.041, Tex.Gov.Code, effective Sept. 1, 1987); Art. 1660, V.T.C.S. (also repealed on Sept. 1, 1987); Smith v. McCoy, 533 S.W.2d 457, 461 (Tex.Civ.App.—Dallas 1976, writ dismissed).

5 . All emphasis added unless otherwise noted.

6 . This Attorney General Opinion was issued in response to a letter requesting such opinion from the Eastland County District Attorney concerning the instant action. In the opinion, the Attorney General refused to resolve the issues presented because the instant writ was presently pending in the courts.