Untitled Texas Attorney General Opinion ( 1962 )

THEAITTORNEPGENERAL
OP TEXAS
April 24, 1962
Honorable Burton S. Burks, Sr, Opinion No. WW-a/3>0
County Attorney
Hood County Re: Whether a magistrate is
Granbury, Texas authorized under the law
to appoint counsel to
represent an indigent de-
fendant charged,witha
felony, in an examining
court, and related
Dear Mr. Burks: questions.
Your request for an opinion presents these three
questions:
1. Is a magistrate, such as a Justice
of the Peace, authorizedunder the law to
appoint counsel to represent an indigent
defendant, charged with a non-capital
felony, in an examining court?
2. Is a magistrate, such as a Justice
of the Peace, authorizedunder the law to
appoint counsel to represent an indigent
defendant,chargedwith a capital felony,
in an examining court?
30 Is a CommissionersCourt authorized
to pay such court-appointedattorney for his
services rendered in an examining court?
Article 35, V.C.C.P,, provides as follows:
When the magistrate sits for the pur-
pose of inquiring into a criminal accusa-
tion against any person, this is called an
'examiningcourt,"
Article 245# V.C.C.P,, provides as follows:
When an accused has been brought before
a magistrate, that officer shall proceed to
examine into the truth of the accusation
Honorable Burton S. Burks, Sr. Page 2 Opinion No, WW-``3~"
made, allowing the accused, however
sufficienttime to nroeure counsel."
(Emphasisadded)
Article 250, V,C.C.P., provides, among other things,
that if no counsel appears, either for the State or for the
defendant, the magistrate may examine the witnesses; and
the accused has the same right.
The purpose of a preliminary examinationis three-
fold: (1) To inquire concerningthe commission of a crime
and the connection of the accused with ft, in order that
he may be informed of the nature and the character of the
crime charged against hfm, and, if there is probable cause
for believing him guilty, that the State may take the neces-
sary steps to bring hfm to trial, (2) To preserve the evi-
dence and keep the witnesses within the control of the State.
(31,To determine the amount of bail if the offense is bail-
D
The Constitutionof the United States does not require
that the accused be furnished counsel at a preliminaryhear-
ing fn the prosecutionfor efther a Federal or State offense;
State of Utah v. Sullivan, 227 Fed.2d 511 (C.C.A. lOth, 1955
cert. den., 350 U,S. 973f Hawk v. Olson, 326 U.S. 271 (19453.
The right to be furnished'counselunder the provisions of the
Federal Constitutiondoes not accrue until an indictmentis
returned or an informationor-other lfke charge 5s lodged
against the accused, State of Utah v0 Sullivan, suvra. Hawk
v. Olson, supra, In the abaenee of constitutionalor statu-
tory provisions,there is no requirementthat counsel must
be appointed for the accused at a reliminaryexamination.
22 C.J.S, Grim. Law, !8339(c), p0 877.
Article 494s V.C.C,P,, before amendment, read a8
follows:
When the accused is brought into court
for the purpose of being arraigned, if it
appear that he has no counsel and is too
poor to employ counsel, the court shall
appofit one or more practicing attorneys
to defend hfm, The counsel so appointed
shall ha e at least one day to prepare for
Emphasis added)
trial." 'i
Under this Article it was mandatory for a court,
upon the arraignment of an indigent defendant accused of a
d- .
Honorable Burton S, Burks, Sr. Page 3 Opinion No. WW-m /3&o
capital offense, to appoint counsel. Holton v. State, 158
S.W.2d 772 (Tex.Crim.1942, cert. den. 316 U.S.xExuarte
Bushnell, 353 S.W.2d 438 (Tex,Crim.1962). This Article, how-
ever, did not apply to non-capitalfelonies. C~ummingsv.
State, 282 S.W. 227 (Tex.Crim.1926). Even in capital cases,
the imuerativedutv of a court to appoint counsel arose only
on a&isal that accused was too ~0% to emoloy counsel, and
only-ipon the arraignmentof the accused. & parte Mays,
212 S.W.2d 164 (Tex,Crim,19481, Ex parte Grayson, 217 S.W.2d
1007 (Tex.Cri& 1949).
Article 494, V.C.C.P., was amended in 1959 by the 56th
Legislatureto read as follows:
"Whenever it is made known to the court
at an arraignmentor any other time that
an accused charged with a felony is too
poor to employ counsel, the court shall
appoint one or more practicing attorneys
to defend hipn.
"The counsel so appointed shall have ten
days to prepare for trial unless such time
be waived in writing by said attorneys and
the accused." (Emphasisadded)
Section 2 of the amending act of Article 494 provided
as follows:
"The fact that Article 494 only applies
to capital casea and does not apply to
ordinary felonies creates an emergency ....'
Article 494a, V.C.C.P., provides for the compensation
of counsel appointed to defend an indigent defendant, and
was amended to increase the compensationin 1959 by the 56th
Legislature, As amended, Article 494a, V.C.C.P., reads in
part as follows:
"Section 1. Whenever the court shall
appoint one or more counsel to defend any
person or persons pursuant to law in any
felony case in this state, each counsel
may, at the discretion of the trial judge,
be paid a fee in the sum of $25.00 per day
for each day such appointed attorney &
actually in trial court representingthe
ersou he has been appointed to represent...."
PEmphasis added)
Bonorable Burton S0 Burks, SP. Page 4 Opinion NO! WW-* /JA0
"Section 2. No such allowance shall be
made unless an affidavit is filed with the
clerk of the court by the defendant showing
that he is wholly destitute of means to pro-
vide counsel, and that he has not been z-
leased on bail bond." (Emphasisadded)
By the language of the above quoted section, the
appointed counsel can only be paid for the days he is ac-
tually in trial court0 The magistrate,under Article 245,
is sitting as an "examiningcourtl'and not as a trial
court0 Art. 35 V,C.C,P.; Brown v0 State, 118 S.W. 139
(Tex.Crim.19091. The accused fs not required to defend
himself upon the merits of the case and the magistrate is
not empowered to pass final judgment upon the guilt or
innocence of the accused. The magistrate has only the
authority to make an order committingthe defendant to
the jail of the proper county, discharginghim, or admitting
him to bail.
It is our opinion that the language of Article 494a,
49413,and particularlySection 2 of the amending act of Art.
494, does not manifest an intent by the Legislatureto extend
the provision of these Articles to an examining court.
It is our opinion, therefore, that a magistrate is
not authorized under Article 494 to appoint counsel to re-
present a defendant charged with either a capital or non-
capital felony in an examining court. Your questions 1, 2,
and 3 arw therefore answered in the negative,
SUMMARY
A magistrate sitting as an examining
court is not authorized under Article 494,
V,C.C.P*, to appoint counsel to represent
an indigent defendant charged with a capital
or non-capital felony, and the CommissiDners
Court is not authorized to pay a court-
appointed attorney for services rendered at
en examining trial+
Very truly'yours,
WILL WILSON
Attorney General of Texas
MPS:bjh
-- .
Honorable Burton S. Burks, Sr. Page 5 Opinion No. WW-EEEh/320
By~f~f``
Marvin F. Sentell
Assistant Attorney General
MFS:bjh
APPROVED,:
OPINION COMMITTEE:
W. V. Geppwrt, Chairman
John Reeves
Arthur Sandlin
Joseph Trimble
Elmer McVwy
APPROVED FOR THE ATTORNEP GENERAL
BY: Houghton Brownlee, Jr.