Untitled Texas Attorney General Opinion ( 1967 )

JUIY 25, 1967
Hon. Joe Resweber Opinion No. M-111
County Attorney
Harris County Courthouse Re: Whether Article 26.05, Code
Houston, Texas of Criminal Procedure, is
applicable to matters be-
fore Juvenile Courts con-
cerning children accused
Dear Mr. Resweber: of fel.onyor misdemeanor.
You have requested an opinion of .this office re-
garding the captioned question.
Article 26.05 of the Code of Criminal Procedure pro-
vides, in part, as follows:
"A counsel appointed to defend a person
accused of a felony or misdemeanor punishable
by imprisonment.shall be paid from the general
fund of the county in which the prosecution
was instituted according to the following
schedule . . .' (Emphasis added)
This office has previously stated in our recent Opinion
No. M-48:
,I
. . . Article 26.05 is applicable only
to appointments of attorneys in criminal cases
made under authority of Article 26.04(a)."-
(Emphasis added)
Article 26.04(a), Code of Criminal Procedure, provides
as follows:
"Whenever the court determines at an
arraignment or at any time prior to arraign-
ment 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 this determination,
the court shall require the accused to file
an affidavit, and may call witnesses and hear
any relevant testimony or other evidence."
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Hon. Joe Resweber, Page 2 (M-111)
It is the opinion of this office, therefore, that Article
26.05, Code of Criminal Procedure, is not presently applicable
to matters before juvenile courts even though the c,hildstands
accused of acts which would constitute a felony or misdemeanor
punishable by imprisonment if he were of age, since the juv-
enile court proceedings are regarded as civil rather than
criminal. See Dendy v. Wilson, 179 S.W.2d 269 (1944) and
Steed v. State, 183 S.W.2d 458 (1955).
Further, it is the opinion of this office that House
Bill 780, 60th Leg., to become effective August 2e, 1967, will
authorize payments for appointed counsel as specified in Ar-
ticle 26.05, c.c.P., in those hearings in the juvenile court
on the issue of waiver of juvenile court jurisdiction and
transfer of the case to the appropriate court for criminal
proceedings.
Section'6 of Article 2338-1, V.A.C.S. will read as
follows:
"Section 6. TRANSFER AND WAIVER OF JURIS-
DICTION. (a) When a child under the jurisdiction
of a court moves from one county to another the
court may transfer the case to the court in the
county of the child's residence if the transfer
is in the child's best interest. The transferring
court shall forward transcripts of records in the
case to the judge of the receiving court, who shall
file them in the office of his clerk.
"(b) If a child is charged with the violation
of a penal law of the grade of felony and was fif-
teen years of age or older at the time of the com-
mission of the alleged offense, the juvenile court
may, within a reasonable time after the alleged
offense, waive jurisdiction by following the re-
uirements set out in Subsections (c) through
? j) of this section, and transfer the child to
the appropriate district court or criminal court
for criminal proceedings.
"(c) The juvenile court shall conduct an
Anformal hearing under Section 13 of this Act on
the issue ofwafver of--jurisdicm.
"(d) Prior to the hearing, the juvenile
court shall order and obtain a complete dia@;-
nostic study social evaluation, and full inves-
tigation of the child, his circumstances, and
the circumstances of the alleged offense.
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Hon. Joe Resweber, Page 3 (M-111)
We are not unmindful of the recent holding in the Appli-
cation of Gault, E7 S.Ct. 1428 (1967) guaranteeing a juvenile
protection of certain basic constitutional rights including
appointment of counsel; however, the Commissioner's Cour~t
is a court of limited jurisdiction and has only such powers
as are conferred upon it by the statutes and Constitution
of this State, whether by express terms or by necessary impli-
cation. Section 18, Article V, Constitution of Texas; Article
2351, Vernon's Civil Statutes; Bland v. Orr, 90 Tex. 492,
39 S.W. 558 1897 ; Mills v. Lampasas County, 90 Tex. 603,
40 S.W. 402 I1897 1* Anderson v. Wood, 137 Tex. 201, I.52S.W.2d
1084 (19415; Canaies v. Laughlin 147 Tex. 169, 214 S.W.2d
451 (19@ ; Starr County v. Gueria 297 S.W.2d 379 (Tex.Civ.
APP. 1956 j; Van Rosenberg v. Lovet;, 173 S.W. 508 (Civ. App.
'1915, error ref.).
We find no authority in the laws of this State which
authorizes the payment of attorneys appointed by the court to
represent juveniles in the juvenile court except as herein-
above noted.
SUMMARY
Article 26.05, C.C.P., is not now appli-
cable to matters before juvenile courts; however,
on August 28, 1967, when the provisions of House
Bill 780, 60th Leg., which amends Section 6,
Article 2338-1, V.C.S., become effective, an
attorney who is appointed to represent a juvenile
in the juvenile court at a hearing on the issue
of waiver of jurisdiction will be entitled to
compensation in the amount and from the same
source as specified in Article 26.05, C.C.P.
Gdneral of Texas
. .
Hon. Jot Resweber, PaCe Ik (M-111)
Prepared by Robert Owen
Assistant Attorney General
APPROVED:
OPINION COMMITTZE
Hawthorne Phillips, Chairman
Kerns B. Teylor, Co-Chairman
Jo Betsy Lewallen
Howard M. Fender
Robert Darden
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.
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