Untitled Texas Attorney General Opinion

-. S
The Attorney General of Texas
Hay 2. 1984
JIM MAnOX
Attorney General
Supreme Cowl Building Mr. Robert 0. Viterna`` Opinion No. J’M-151
P. 0. Box12548 Exizcutive Director
AUK. TX. 7871s 254a Texas Commission.on Jail Standards Re: Whether a county jail must
5121475-2501 P. 0. Box 1298% accept state statute violators
Telex 91003711387
Auetin, Texas ::78711: delivered by municipal police
Telesopler 51214750268
officers, and related questions
714 Jackaon.Sulle 700 Dear Mr. Viterna: :
Dall*s. TX. 75202.4505
214f7428944
You infozw+%a ,that Bexar County Jail provides housing for persons
arrested ‘by city- police officers for violating a state statute.
4824 Alberta Ave., sldte la0 Bowever, the county charges the city making the arrest $50 a day for
El Paso. TX. 7B905-2793 each prisoner until he is taken before a magistrate. You ask the
,gl$lm34a4 folltiing questions about this~practice:
1001 Texas. Sulle 700 (1) Must the Bexar County Jail accept all
“ouI,~. TX. 77002-3111 states statute violators delivered by municipal
7132295886 police officers (see Attorney General Opinion
MU-52 regarding municipal offenders)?
SO5 Broadway, Suite 312
Lubbock. TX. 7B401-3478
(2) Must municipalities be required to pay for
506i747.5235 each..indivi+al until: that person [appears before
a :6mg$sirate].? Or, *~ :
43OB N. Tenth. Suite B
. (3) -Must the vkstor [appear before a
McAllsn. TX. 7S5Ol.l~W
512mS24547 magietrate] prior to delivery to the Bexar County
Jail?.
2co Main Plaza. SUIIO 400 (4) And, must a district attorney’s represent-
San Antonio. TX. 782052787
ative be present at the magistrates hearing?
51212254191
City pollce?officers are peace officers, authorized to make arrests
An Equal Oppwtunllyf under. _the : !&de of Criminal Procedure. Code Grim. Proc. arts. 2.12,
Affirmative Action Empioys~ 2.13.
When~..u city police officer. or other person authorized by law
‘erre,sts-~xanyonu~ he must “without unnecessary delay take the person,
arreuted~:ot,have him taken before some magistrate of the county” where
the arrest took place. Code Grim. Proc. art. 15.17, see also arts.
14.06, 15.16. Mayors, recorders, and judges of municipal courts are
among+h&offlcers designated as magistrates by article 2.09 of the
code. The mag~istrate performs the duties set out in article 15.17,
Hr. Robert 0. Viterna - Page 2 (JM-151)
including warning the arrestee of his constitutfonal rights and
admitting him to bail If alloved by 1s~.
Article 2.17 of the Code of Crinlnal Procedure, pertaining toga
sheriff’s duty, requires him to commit to jail the offenders he
apprehends. subject to his duty to take them before a magistratw;::,The
sheriff is also required to place in jail prisoners who are connitted
by warrant from a magistrate or court. Code Grim. Prof. artti.2.18.
See also V.T.C.S. art. 5116(a). The sheriff may take custody>-of a
prisoner lawfully arrested by a city police officer, thereby ,becom%ng
responsible for the prisoner. Code Crlm. Proc. art. 45.43; ~+KXl.C:S.
art. 5116. Be is not, however. required by statute t&-:,
Your second question concerns whether the cftfes may be required
to pay for each prisoner’s keep until he is brought before a
magistrate. The county could collect this payment from the city if
the two governmental bodies entered into an Interlocal contract
agreeing to this term. V.T.C.S. art. 4413(32c); see Attorney General
Opinions MW-52 (1979); O-7353 (1946). However, itappears from the
correspondence submitted with your request letter that the city and
county have not entered Into such an agreement. We are unable to find
any provision of law authorizing the county to impose this charge ou
cities absent an appropriate contract.
You finally ask whether a district attorney’s representative must
be present at the magistrate’s hearing. Article 2.09 of the Code of
Criminal Procedure lists the officers who are magistrates:
Each of the following officers is a magistrate
within the meaning of this Code: The justices of
the Supreme Court, the judges of the Court of
Criminal Appeals, the justices of the courts of
Appeals, the judges of the District Court, the 2..
county judges, the judges of the county courts at
law, judges of the county criminal courts, the
justices of the peace, the mayors and recorders
p. 658
Mr. Robert 0. Vitema - Page,3 (JM-151)
2 “, . , ,and the judges of the municipal courts of
incorporated cities or towns.
We :find no provision of law requiring a magistrate to await the
arrival of the district attorney’s representative before he gives the
warnings required by article 15.17.
/.‘?I
- Article 2.01 of the code requires the district attorney to
represent the state in examining trials in his district, when notified
thatir,oae will take place and when other duties do not prevent his
parti&&pation in it. See, e. ., art. 16.06 (examining trial
procedure).’ A magistrate conducts examining trials. Code Criw. Ptoc.
art.:ll6.01., Thus, the legislature has expressly stated when the
district attorney must attend a proceeding before a magistrate. The
arrestee’s appearance before a magistrate for statutory warning8 is
not such a proceeding.
:
In McGee v. Estelle. 625 P.2d 1206 (5th Cir. 1980) cert. denied.
449 U.S. 1089 (1981) the relator contended that his appearance before
a magistrate triggered the adversary process so that he-was thereafter
entitled to representation by counsel. The court refuted this
contention, pointing out that appearance before a magistrate for
statutory warnings does not Involve counsel for the state but instead
is for the purpose of complying with the requirements of Miranda v.
Arizona. 304 U.S. 436 (1966). See also Wyatt v. State, 566 S.W.2d 597
(Tex. Grim. App. 1978). The district attorney’s presence is not
required at the magistrate’s proceeding pursuant to article 15.17 of
the code.
:f,.,g$-r ‘>
,;$,).,:. SUMMARY
‘K? 1 .>
The Bexar County Jail is not required to accept
state statute violators arrested by municipal
police officers until the arrestee has appeared
~before a magistrate for statutory warnings and
commitment to the county sheriff’s custody. If it
does accept such arrestees. the county may not
charge the city a fee for housing them prior to
commitment unless the city and county have
contracted for that purpose. A district
3ti.:...i attorney’s representative need not be present at
the magistrates hearing pursuant to article 15.17
of the Code of Criminal Procedure.
.
JIM MATTOX
Attorney General of Texas
p. 659
Mr. Robert 0. Vitema - Page 4 (m-151)
TOnGREEN
First Assistant Attorney General
DAVID R. RICRARDS
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
A
p. 660