When a Virginia circuit court convicts an indigent defendant, can the clerk bill the defendant for both attorney fees and expenses, even if those exceed the court-appointed counsel cap?

Plain-English summary

Cathy Hogan, Clerk of the Bedford Circuit Court, faced a recurring problem: when an indigent defendant was convicted and the court approved both court-appointed counsel compensation and reasonable expenses (transcripts, expert witnesses, investigators), did the statutory cap on counsel compensation limit how much of the expenses she could bill the defendant?

The AG: no, expenses sit outside the cap. The cap applies only to attorney compensation. Reasonable expenses, separately approved by the court, are taxed in addition to the capped compensation.

The opinion also superseded the conflicting portions of an earlier AG opinion (13-060, Sept. 20, 2013) that had read § 19.2-163(2) as capping the combined total.

The statutory architecture. Va. Code § 19.2-163 sets up two distinct payment mechanisms:

1. Compensation for legal services on an hourly basis. Subsection (2) sets a "pre-waiver compensation limit" (currently $1,235 for a Class 2 felony at the time of the opinion). Court-appointed counsel may seek a waiver for additional compensation, but the amount taxed against the defendant is capped at the pre-waiver limit, regardless of waiver.
2. Reasonable expenses incurred by counsel. The court "shall direct the payment of such reasonable expenses ... as it deems appropriate under the circumstances of the case." No monetary cap is set on the amount of expenses the court can approve.

The two amounts are separate. The compensation cap does not bleed over into the expense calculation.

Reading § 17.1-275.5 with § 19.2-163. Section 17.1-275.5(A) is a general statute requiring clerks to assess various costs against convicted defendants, including "[a]ny amount paid by the Commonwealth for legal representation of the defendant" (subsection (A)(1)). Section 19.2-163(2) is more specific, addressing the same subject for the court-appointed counsel context. The AG applied the in pari materia canon and the rule that the more specific statute prevails: § 19.2-163(2)'s pre-waiver cap limits what can be assessed under § 17.1-275.5(A)(1) for court-appointed counsel compensation, but the broader § 17.1-275.5 assessments for other costs are unaffected.

Public defenders and capital defenders. Section 19.2-163.4:1 governs assessment when an attorney from a public defender or capital defender office represented an indigent defendant. The statute says "the sum that would have been allowed a court-appointed attorney as compensation and as reasonable expenses shall be taxed against the person defended as a part of the costs of the prosecution." This means: (a) the hypothetical court-appointed compensation calculation, capped at the pre-waiver limit; plus (b) the actual reasonable expenses, without a cap. The recovered funds go to the Commonwealth (or to the locality, if the locality paid for defense of a local ordinance violation).

Why the prior AG opinion was wrong. Opinion 13-060 had concluded that because § 19.2-163(2) sets the amount that can be taxed at the pre-waiver limit, "a defendant cannot be taxed with approved expenses or fees that exceed the pre-waiver compensation limit." This opinion explains that 13-060 conflated compensation (capped) and expenses (not capped). The plain language of § 19.2-163, separating "compensation ... on an hourly basis" from "reasonable expenses incurred by," makes the distinction.

Four scenarios the opinion walks through (in a long footnote). Assuming a Class 2 felony with a pre-waiver compensation limit of $1,235:

1. Counsel requests $1,235 compensation + $400 expenses. Both approved. Defendant taxed $1,635.
2. Counsel requests $2,000 (with waiver) + $400 expenses. Both approved. Defendant taxed $1,635 (compensation capped at $1,235, expenses uncapped at $400).
3. Public defender, hypothetical $1,235 compensation + $400 expenses. Both approved. Defendant taxed $1,635.
4. Counsel requests only 10 hours of services + $400 expenses. Court approves $900 (10 × $90 hourly rate) + $400. Defendant taxed $1,300.

Currency note

This opinion was issued in 2013. 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.

The pre-waiver compensation limits and the hourly rate for court-appointed counsel have changed multiple times since 2013. The structural framework (compensation cap, expense add-ons) has remained in place, but clerks and counsel should verify current numbers in the Office of the Executive Secretary's Court-Appointed Counsel Procedures & Guidelines Manual.

Common questions

What is the "pre-waiver compensation limit"?
The statutory cap on what court-appointed counsel can be paid without seeking a waiver. For a Class 2 felony at the time of this opinion, it was $1,235; for other charges, it varies. The limit also acts as the maximum amount that can be billed back to the convicted defendant for counsel compensation, even if a waiver was granted for additional compensation.

What counts as a "reasonable expense"?
Expenses incurred by counsel in representing the defendant: investigator fees, expert witness fees, trial transcripts, travel, photocopying, and similar costs. The court approves the expenses on counsel's submission.

Are there limits on how much a court can approve in expenses?
The statute does not impose a dollar cap. Courts use the "reasonable under the circumstances of the case" standard. Complex cases (capital, multi-defendant, scientific evidence) routinely involve substantial expense claims.

Does the defendant actually have to pay this back?
The amounts are taxed as costs of prosecution. Whether they get collected depends on the defendant's ability to pay, restitution priorities, and the locality's collection procedures. Many indigent defendants never repay the full amount. The order itself, though, creates the legal obligation.

Why does this matter for the locality?
The Commonwealth advances the funds for court-appointed counsel and approved expenses. To the extent the defendant is billed (and pays) those costs, the money flows back to the Commonwealth, reducing the net cost of indigent defense.

What if the defendant is convicted on multiple charges?
The waiver-cap language refers to "an amount equal to the pre-waiver compensation limit specified in this section for each charge for which the defendant was convicted." So multi-charge convictions can multiply the maximum compensation assessment, with expenses added separately.

What about appeals?
Appeal-related costs are governed by separate provisions of § 17.1-275.5 and related statutes. The opinion focuses on trial-level costs.

Does this apply to misdemeanors?
The opinion addresses circuit court proceedings; § 19.2-163 governs court-appointed counsel in both general district and circuit courts, with parallel pre-waiver limits. The same compensation/expense separation applies.

Can the defendant challenge the assessed costs?
Yes, through the standard cost-bill challenge procedures or by motion to the court. Misapplication of the statutory framework (e.g., a clerk who improperly caps expenses at the compensation limit) is reversible on appeal.

Background and statutory framework

• Va. Code § 19.2-163: court-appointed counsel compensation (capped) and expenses (uncapped); requires assessment against convicted defendants.
• Va. Code § 19.2-163(2): the pre-waiver compensation limit.
• Va. Code § 19.2-163.4:1: assessment when the defendant was represented by a public defender or capital defender.
• Va. Code § 17.1-275.5: general clerk assessment of various costs of prosecution.
• Office of the Executive Secretary: publishes the Court-Appointed Counsel Procedures & Guidelines Manual setting current hourly rates and caps.

The interpretive moves:

• Plain meaning of § 19.2-163 separates compensation from expenses.
• In pari materia reading of § 17.1-275.5 and § 19.2-163.
• Specific (§ 19.2-163(2)) prevails over general (§ 17.1-275.5(A)(1)) for the capped element.
• The 2013 opinion explicitly supersedes the inconsistent parts of Opinion 13-060.

Citations

• Va. Code § 17.1-275.5
• Va. Code § 19.2-163
• Va. Code § 19.2-163.4
• Va. Code § 19.2-163.4:1
• 2013 Op. Va. Att'y Gen. No. 13-060 (superseded in part)
• 1977-78 Op. Va. Att'y Gen. 199
• City of Va. Beach v. Bd. of Supvrs., 246 Va. 233, 435 S.E.2d 382 (1993)
• Grant v. Commonwealth, 233 Va. 680, 292 S.E.2d 348 (1982)
• Prillaman v. Commonwealth, 199 Va. 401, 100 S.E.2d 4 (1957)
• Commonwealth v. Jones & Robins, Inc., 186 Va. 30, 41 S.E.2d 720 (1947)
• D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204 (1932)
• Davenport v. Little-Bowser, 269 Va. 546, 611 S.E.2d 366 (2005)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/13-095_Hogan.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

December 27, 2013

The Honorable Cathy C. Hogan
Clerk of the Circuit Court of Bedford County
123 East Main Street, Suite 201
Bedford, Virginia 24523

Dear Ms. Hogan:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You make three inquiries with respect to the assessment of expenses against an indigent criminal defendant convicted in a circuit court.[1] First, you ask whether there is a limit on the amount of court-approved expenses that may be assessed against such defendant, when the amount of such expenses exceeds the court-appointed counsel pre-waiver compensation limit set forth in § 19.2-163(2) of the Code of Virginia.[2] Second, you ask whether § 19.2-163(2) limits the amounts that may be assessed by a circuit court clerk under § 17.1-275.5 of the Code of Virginia.[3] Third, you inquire whether the amount of expenses that may be assessed against such defendant who is represented by an attorney from a public defender or capital defender office is limited to the amount of the pre-waiver compensation limit set forth in § 19.2-163(2).

Response

It is my opinion that an indigent criminal defendant convicted in a circuit court may be taxed for court-approved, reasonable expenses in addition to, and over and above the court-appointed counsel pre-waiver compensation limit set forth in § 19.2-163(2). It is further my opinion that §§ 17.1-275.5 and 19.2-163 must be read together to determine the amount of combined court-appointed counsel compensation and approved expenses that may be assessed against such a defendant. Finally, it is my opinion that the amount of expenses that may be assessed against such a defendant who is represented by an attorney from a public defender or capital defender office is not limited by the court-appointed counsel pre-waiver compensation limit set forth in § 19.2-163(2).

Applicable Law and Discussion

You first inquire whether there is a limit on the amount of expenses that may be assessed against a convicted indigent defendant, when the amount of such expenses approved by the court under § 19.2-163 exceeds the amount of the court-appointed counsel pre-waiver compensation limit. Section 19.2-163 provides that "[t]he circuit or district court shall direct the payment of such reasonable expenses incurred by ... court-appointed counsel as it deems appropriate under the circumstances of the case." Under the plain language of this statute, no monetary limit is set upon the amount the court may approve as reasonable expenses.[4] Accordingly, upon court-appointed counsel's request, the court may direct payment of reasonable expenses, without regard to the court-appointed counsel pre-waiver compensation limit of § 19.2-163(2).[5] Moreover, with respect to the combined total amount of compensation awarded to counsel, up to the pre-waiver compensation limit, and reasonable expenses approved by the court, § 19.2-163 provides that "[i]f the defendant is convicted, the amount allowed by the court to the attorney appointed to defend him shall be taxed against the defendant as a part of the costs of prosecution[.]"[6]

Therefore, I conclude that the court may approve the payment of reasonable expenses to court-appointed counsel in addition to, and over and above the compensation approved for court appointed counsel pursuant to § 19.2-163(2). I further conclude that the clerk may combine the amount of court-approved expenses and compensation approved for court-appointed counsel, and assess the total amount against the defendant as part of the costs of the prosecution. Nevertheless, in calculating this combined total, and with respect to the compensation approved by the court for court-appointed counsel, the clerk may assess against the defendant only an amount of compensation up to the pre-waiver compensation limit of § 19.2-163(2).

You next ask whether "§ 19.2-163(2) limits the fees that may be assessed by a circuit court clerk under § 17.1-275.5[.]"[7] Both statutes generally relate to the same subject namely, the amount of costs that lawfully are to be assessed against a convicted criminal defendant and should be construed together.[8] Should they conflict, the more specific statute will prevail over the more general.[9] Nevertheless, in reading them together, I find no conflict between these two statutory provisions.

Section 19.2-163(2), and those other parts of the statute relevant to your inquires, pertain to those circuit court cases in which indigent defendants have been provided with court-appointed counsel. The statute therein provides for the determination of that attorney's compensation, and for court approval of reasonable expenses that may be reimbursed to that attorney and taxed against such defendants who are convicted. Section 17.1-275.5, on the other hand, applies generally to all cases in which the Commonwealth has incurred costs in the prosecution of defendants convicted in courts of record.

Thus, with respect to the matters about which you inquire, § 19.2-163(2) is the more specific statute, and governs assessments in those circumstances to which it applies namely, circumstances in which a convicted indigent defendant has been represented by court-appointed counsel, and the determination of compensation "for his services on an hourly basis[.]"[10] It harmoniously corresponds with, and imposes a limitation on one matter within the broad scope of § 17-275.5(A)(1), mandating that a circuit court clerk assess against a convicted defendant "[a]ny amount paid by the Commonwealth for legal representation of the defendant."[11] Section 19.2-163(2) provides the methodology for the determination of compensation of court-appointed counsel for indigent criminal defendants, and other provisions within that statute mandate that the circuit court clerk assess a convicted defendant for the amount of such compensation, not to exceed the pre-waiver compensation limit. I conclude that this very specific limitation on the amount of court-appointed compensation that may be assessed against a defendant represented by court-appointed counsel, correspondingly limits the amount that a clerk may assess a defendant under § 17.1-275.5(A)(1) for this particular component of amounts that may be "paid by the Commonwealth for legal representation of the defendant."

You inquire further whether the amount of expenses assessed against an indigent defendant who is represented by an attorney from a public defender or capital defender office is limited to the amount of the pre-waiver compensation limit set forth in § 19.2-163(2). I conclude that the amount of expenses assessed under such circumstances is not so limited. Section 19.2-163.4:1 provides as follows:

In any case in which an attorney from a public defender or capital defender office represents an indigent person charged with an offense and such person is convicted, the sum that would have been allowed a court-appointed attorney as compensation and as reasonable expenses shall be taxed against the person defended as a part of the costs of the prosecution, and, if collected, shall be paid to the Commonwealth or, if payment was made to the Commonwealth by a locality for defense of a local ordinance provision, to the appropriate county, city or town.[12]

The plain meaning of § 19.2-163.4:1 provides that all court-approved expenses incurred by an attorney from a public defender or capital defender office must be assessed against a convicted indigent defendant. "A principal rule of statutory interpretation is that courts will give statutory language its plain meaning."[13] Therefore, it is my opinion that the amount of expenses assessed against a convicted indigent defendant who is represented by an attorney from a public defender or capital defender office is not limited to the amount of pre-waiver compensation allowed a court-appointed attorney under § 19.2-163(2).[14]

Conclusion

Accordingly, it is my opinion that an indigent criminal defendant convicted in a circuit court may be taxed for court-approved, reasonable expenses in addition to, and over and above the court-appointed counsel pre-waiver compensation limit set forth in § 19.2-163(2). It is further my opinion that §§ 17.1-275.5 and 19.2-163 must be read together to determine the amount of combined court-appointed counsel compensation and approved expenses that may be assessed against such a defendant. Finally, it is my opinion that the amount of expenses that may be assessed against such a defendant who is represented by an attorney from a public defender or capital defender office is not limited by the court-appointed counsel pre-waiver compensation limit set forth in § 19.2-163(2).

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General

[1] With respect to your specific inquiries, you seek clarification of a prior opinion of this Office, 2013 Op. Va. Att'y Gen. No. 13-060 (Sep. 20, 2013), which concluded that "because § 19.2-163(2) specifically sets the amount that a convicted indigent defendant can be taxed at the pre-waiver compensation limit, a defendant cannot be taxed with approved expenses or fees that exceed the pre-waiver compensation limit." Id. Your current inquires focus clearly upon the distinction between amounts that may be assessed for "compensation for [court-appointed counsel] services on an hourly basis," and "reasonable expenses incurred by" such attorney in the representation of an indigent criminal defendant, as provided for in § 19.2-163, and whether those separate amounts may be combined upon a conviction and "taxed against the defendant as a part of the costs of prosecution." While the former opinion generally addressed this subject matter under § 19.2-163(2), it did not purport to opine on the very specific legal issues that you now raise. To the extent that the former opinion's conclusion is in conflict with the conclusions of this Opinion, that conclusion is superseded.

[2] Va. Code Ann. § 19.2-163 (Supp. 2013).

[3] Va. Code Ann. § 17.1-275.5 (Supp. 2013).

[4] "An important principle of statutory construction is that 'words in a statute are to be construed according to their ordinary meaning, given the context in which they are used.'" City of Va. Beach v. Bd. of Supvrs., 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993) (quoting Grant v. Commonwealth, 233 Va. 680, 684, 292 S.E.2d 348, 350 (1982)).

[5] Section 19.2-163. See also 1977-78 Op. Att'y. Gen. 199 (regarding a district court's authority to award reasonable expenses to court-appointed counsel).

[6] Section 19.2-163 further provides that "[i]n the event that counsel for the defendant requests a waiver on the limits of compensation, the court shall assess against the defendant an amount equal to the pre-waiver compensation limit specified in this section for each charge for which the defendant was convicted." (Emphasis added.) Thus, in the event of a court-approved waiver respecting counsel compensation, and an award of additional compensation for services over and above the pre-waiver compensation limit of § 19.2-163(2), the maximum amount the clerk of court may assess the defendant is the pre-waiver compensation limit. The statute's language makes clear that this calculation applies only to compensation to court-appointed counsel "for ... services on an hourly basis," and does not pertain to the separate assessment of court-approved, "reasonable expenses incurred by such court-appointed counsel." Section 19.2-163; see infra note 5.

[7] As quoted by you in your opinion request, § 17.1-275.5(A), in relevant part, pertains to certain costs in criminal cases, and it requires the clerk to "assess, in addition to the fees provided for by" several other statutory sections within Article 7 of Title 17.1 of the Code of Virginia, the following amounts: 1. Any amount paid by the Commonwealth for legal representation of the defendant; 2. Any amount paid for trial transcripts; 3. Extradition costs; 4. Costs of psychiatric evaluation; 5. Costs taxed against the defendant as appellant under Rule 5A:30 of the Rules of the Supreme Court of Virginia .... With respect to such monetary amounts to be assessed against a convicted criminal defendant, § 17.1-275.5(A) does not make reference to § 19.2-163. Moreover, with one exception that might include them, these categories of cost items do not appear to relate to "reasonable expenses incurred by ... court-appointed counsel," as provided for by § 19.2-163. (Emphasis added). See § 17.1-275.5(A)(1) (potentially encompassing the reasonable expenses of court-appointed counsel). Instead, the items constitute costs of prosecution of the defendant, and his subsequent appeal, which most frequently would not be billed to, or paid in the first instance by, court-appointed counsel.

[8] "The general rule is that statutes may be considered as in pari materia when they relate to the same person or thing, the same class of persons or things or to the same subject or to closely connected subjects or objects. Statutes that have the same general or common purpose or are parts of the same general plan are also ordinarily considered as in pari materia." Prillaman v. Commonwealth, 199 Va. 401, 405, 100 S.E.2d 4, 7 (1957).

[9] According to long-accepted principles of statutory construction, "[g]eneral language of a statutory provision, although broad enough to include it, will not be held to apply to a matter specifically dealt with in another part of the same enactment. Specific terms prevail over the general in the same or another statute which otherwise might be controlling." D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 208 (1932) (internal citations omitted). See also Commonwealth v. Jones & Robins, Inc., 186 Va. 30, 48, 41 S.E.2d 720, 730 (1947).

[10] Section 19.2-163.

[11] See also §§ 19.2-163.4 and 19.2-163.4:1.

[12] Emphasis added.

[13] Davenport v. Little-Bowser, 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005) (citing Jackson v. Fidelity & Deposit Co., 269 Va. 303, 313, 608 S.E.2d 901, 904 (2005)).

[14] I note that, in your request, you posit four scenarios, each involving an indigent criminal defendant convicted of a Class 2 felony, and inquire as to the amount a circuit court clerk should assess against the convicted indigent defendant. I address each scenario in turn, noting that the amounts calculated are hypothetical only, in applying the legal conclusions reached herein. In the first scenario, the defendant's court-appointed counsel submits documentation requesting statutory attorney's fees in the amount of $1,235 (such sum, in each of your hypothetical scenarios, represents the pre-waiver compensation limit under § 19.2-163(2)), plus expenses of $400. The circuit court approves both amounts. In this instance, the defendant should be assessed in the amount of $1,635. See § 19.2-163. In the second scenario, the defendant's court-appointed counsel submits documentation requesting a waiver of the $1,235 compensation limit, for a total attorney's fee of $2,000, plus expenses in the amount of $400. The circuit court approves the waiver and the full amount of expenses sought. In this instance, the defendant should be assessed for compensation and expenses in the amount of $1,635. See § 19.2-163. In the third scenario, the defendant is represented by a public defender, who in addition to seeking compensation in the amount of $1,235, submits documentation of expenses totaling $400, and the circuit court approves these amounts. In this instance, the defendant should be assessed for compensation and expenses in the amount of $1,635, representing the pre-waiver compensation limit that would have been allowed a court-appointed attorney under § 19.2-163(2), that is, $1,235, plus approved expenses in the amount of $400. See § 19.2-163:4:1 (2008) (setting the sum that shall be assessed against the convicted indigent defendant at "the sum that would have been allowed a court-appointed attorney as compensation and as reasonable expenses"). In the fourth scenario, the defendant's court-appointed counsel submits documentation for only ten hours of legal services, plus expenses in the amount of $400. The circuit court approves $900 in compensation for the attorney's services, plus $400 in expenses. See Office of the Exec. Sec'y, Dep't of Judicial Servs., Court-Appointed Counsel Procedures & Guidelines Manual 5-1 (2013), available at http://www.courts.state.va.us/courtadmin/aoc/djs/resources/manuals/ctapptatty/chapter05.pdf (establishing $90 an hour as the current compensation rate for court-appointed counsel). In this instance, the defendant should be assessed a total of $1,300. See § 19.2-163(2).