Untitled Texas Attorney General Opinion ( 1966 )

Honorable Joe Resweber Opinion NO. (c-654)
Cpunty Attorney
Harris County Re: Appointment and Compen-
Houston, Texas sation of attorneys to re-
present ,accusedpersons in
Dear Mr. Resweber: examining trials.
In a recent.opinion request of this office you pose
the following questions:
“1. Can a justice of the peace appoint an
attorney for accused in examining trials
held by him?
“2. Is an arraignment the same~as an examining
trial, as used in Article 16.01, C.C.P.,
and Article 26.04, c.c.P.?
“3. By what amount is an attorney to be compen-
sated for representing an accused in an
examining trial?
“4. Where the same attorney represents two or
/
i more persons in one or more courts on the
same day and the fees for appointed counsel
are included in the costs of court under
Article 26.05,E.c.~., to whom are such
costs to be taxed?
“5. Does the attorney appointed for an examin-
ing trial have to represent the accused
in a subsequent trial in County or District
Court for the same fee, or does the,Judge
of the County or District Cour,thave the
duty to appoint the same or a different
attorney at additional fees set by Article
26.05,Jc.c.p.~ to be paid upon the trial
of the case?"
For convenience we will number the paragraphs of this
opinion so as to correspond with the numbers you have given
the questions.
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Honorable Joe Resweber, page 2 (c-654)
1. A justice of the peace may appoint counsel to
represent an accused in an examining trial held by him
only. Article 16.01, Code of Criminal Procedure, 1966,
concerning examining trials, provides as follows:
"pen the accused has beenbroughtbefore a
magistrate for an examining trial that
officer shall proceed to examine Into the
truth ofttie accusation made, allowing the
accused, however, sufficient time to pro-
cure counsel. In a proper case, the magis-
trate may appoint counsel to represent an
accused in such examining trial only, to
be compensated as otherwise provided in
this code. The accused in any felony case
shall have the right to an examining trial
before indictment in the county having
jurisdiction of the offense, whether he be
in custody or on ball, at which time the
magistrate at the hearing shall determine
the amount or sufficiency of ball if a
bailable case."
Prom the above quoted article it seems clear that
a'magistrate has the authority to appoint counsel to re-
present an accused in an examining trial only. Article
2,09, Code of Criminal Procedure, 1966, among other things,
designates justices of the peace as magistrates. In view
of the foregoing, it is the opinion of this office that
a justice of the peace may appoint an attorney for an
accused fin an examining trial held by said justice of
the peace.
2. Your second question is answered in the negative
since it is the opinion of this office that an arraignment
as described in Article 26.04, Code of Criminal Procedure,
1966, Is not the same as an examining trial as described
in Article 16.01.. In the first place; it should be noted
that Chapter 16 of the Code, and the numerous provisions
thereof, is almost entirely concerned with the setting out
of various rules of procedure which apply to examining trials,
such as the taking of testimony therein. On the other hand,
Chapter 26, of the Code.1966, dealing with arraignment, has
no similar procedure set forth, and in fact Article 26.02,
thereof states that the purpose of an arraignment is simply
for the fixing of the identity of the defendant and hear-
ing his plea. Apparently the only other thing to be done
at time of arraignment would be the appointment of counsel
if necessary. We therefore observe that there is a vast
_. -3164-
Honorable Joe Restieber,page 3 (C-6?‘+)
di.stinctionmade by the Legislature with regard to arraign-
ment and examining trials, and it seems clear that that
body intended there be a distinction between the two. In
addition to this, a distinction between an arraignment and
an examlninn trial was aointed out in Attornev General's
Opinion No.-WW-1320 and-Brown v. State, 118 S.W. 139 (Tex.
Grim. 1909). .
3. Article 16.01.provides that an attorney appointed
.to represent the accused in an examining trial shall be
"compensated as otherwise provided in this code". The
only provisions providing for compensation of appointed
counsel are contained in Article 26.05, Code of Criminal
Procedure, 1966. However, Article 26.05 would on its
face seem to be applicable only to a situation where the
appointed counsel had been in "trial court". All of the
provisions of 26.05, setting out fees to be paid appointed
counsel in instances other thanon appeal, speak in terms
of days spent in trial court. It seems clear that a magis-
trate holding an examining trial would not be a "trial
court" as that term is used in the statute, and the
language of Article 26.05 would at .firstreading indicate
that an attorney appointed to represent an accused in an
examining trial Would not be compensated for his efforts.
Itsis our opinion, however, that the Legislature intended
that an attorney appointed under the provisions of Article
16.01, be con ensated in accordance with the provisions
of Article 2%.05. Article 16.0'1. clearly contemplates that
such an attorney would be compensated as provided in the
code. Article 26.05 contains the only provisions related
to compensation of appointed attorneys, and it is the
opinion of this office that an attorney appointed under
the provisions of Article 16.01, would be eligible for com-
'pensation in accordance with the terms of Article 26.05.
~4. You next inquire if the same attorney represents
two ormore persons in one or more courts on the same day
and the fees for appointed counsel are included in the costs
of court under Article 26.05, to whom are such court costs
. We are of the opinion that Section 3 of
to:,'b&l~.taxed.
Article 26.05 is unconstitutional, and therefore.do not
address ourselves to your specific'question. Said Section
3 provides as ,follows:
"All payments made under the pro-
visions of this Article may be in-
cluded as costs of court."
Although this provision is of course discretionary
~with the court, it seems clear that in many instances, in
L
-3166-
Honorable Joe Resweber, page 4 (c-654)
both felonies and misdemeanors, indigent persons for whom
attorneys have been,appointed would be charged a sum of
money for their decision to excercise their constitutional
right to counsel.
In-Gideon vs. Wainwright, 372 U.S. 335, (1963), an
unanimous Supreme Court held that the Sixth Amendmentls
provision that in all criminal prosecutions the accused
shall enjoy the right to have the assistance of counsel for
his defense was made obligatory upon the states by the
Fourteenth Amendment. In a concurring opinion, Mr. Justioe
Harlan pointed out that it was not necessary to decide in
Gideon whether the ,decision applied to all criminal cases
as ODDOSed to onlv those which carried the Dossibilitv of
;h&;;;ial r&on sentence. However, in-Harv;y vsi
Mlssissi i, 3 ~0 F. 2a 263 (lg63), the Court of ppea s for
Circuit held that the failure to advise a person
accused of a misdemeanor, punishable by possible confinement,
of his rightto the assistance of counsel, invalidated his
guilty plea .and rendered his conviction and subsequent in-
carceration constitutionally improper. We think it clear,
therefore, that in all felonies and at least in all misde-
meanors punishable by possible confinement-in jail, the
accused has the right to the assistance of counsel. Addi-
tionally, Article 26.05, Section 1, provides for the appdnt-
ment of counsel in all felonies and misdemeanors punishable
by imprisonment. We are thus confronted with the situation
that if Section 3 of Article 26.05 is allowed to stard, there
will be many instances in Texas when an indigent defendant
who excercises his right to have the assistance of counsel
and has one appointed for him by the court will be charged
a sum of money simply because he excercises his right.
In Griffin vs. Illinois, 351 U.S. 12 (1956), the United
States Supreme Court held that an indigent defendant was
entitled to have free of costs an appellate record in order
that he might perfect an appeal of his conviction. Al-.
though we realize that Griffin is not directly in point here,
it is analogous to our situation. Then in Griffin vs. Cali-
fornia 380 U.S. 609 (1965), the United States Supreme Court
li??m-i
t at adverse comment by a prosecutor or a trial judge
upon a defendant's failure to testify in a State criminal
trial violates the Federal privilege against compulsory
self incrimination, because such comment "cuts down on the
privilege by making Its assertion costly.(' We believe the
reasoning in Griffin to be applicable here since to assess
a charge against a defendant in the evefithe excercises hi.s
constitutional right to the assistance of counsel cuts down
on this privilege by making its assertion costly. We are
.-
-3166:
Ebnorable Joe Resweber, page 5 (C-654)
of the opinion, therefore, that Section 3 of Article 26.05
js unconstitutional.
5. An attorney appointed for an examining trial is
sppointed to represent the accused in the examining trial
only. Article 16.01, quoted earlier in this opinion, states,
&Tong other thtngs, that the magistrate may appoint counsel
to represent an accused in an examining trial only. We inter-
pret this provision to mean tnat a magistrate, before whom
a person is brought for an examining trial, has the authority
to appoint counsel for the purpose of representing the accused
only in the examining trial. Therefore, if subsequent appoint-
ucnt of counsel is deemed necessary by the trial court, said
court has the duty to appoint the same or a different attorney
to represent the accused after the examining trial, and
the additional fees as prescribed in Article 26.05, should
be. paid.
: SUMMARY
-------
A justice of the peace m&y appoint an attorney
for an accused in an examining trial.held by
said justice of the peace. An arraignment is
not the same as an examining trial. An attorney
appointed to represent an accused in an examin-
ing trial is to be compensated In accordance with
the provisions of Article 26.05, C.C.P., 1966.
Section 3 of Article 26.05 is unconstitutional.
An attorney appointed by a magistrate for the
purpose of representing an accused in an ex-
amining trial is appointed for that purpose
only, and if appointment.ofcounsel is necessary
for the accused subsequent to the examining
trial, the appropriate trial court has the duty
to appoint the same or a different attorney to
represent the accused.
CJ
Yours very truly,
t
WAGGONER CARR
Attorney General of Texas