THEAITTORNEPGENERAL OP TEXAS

April 24, 1962

HonorableBurton S. Burks, Sr, Opinion No. WW-a/3>0 County Attorney Hood County Re: Whether a magistrate is Granbury,Texas authorizedunder the law to appoint counsel to representan indigentdefendant charged,with a 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 representan indigent defendant,chargedwith a non-capital felony, in an examiningcourt? 2. Is a magistrate, such as a Justice of the Peace, authorizedunder the law to appoint counsel to representan indigent defendant,charged

with a capital felony, in an examining court? 30 Is a Commissioners Court authorized to pay such court-appointed attorney for his services rendered in an examining court? Article 35, V.C.C.P,,provides as follows: When the magistrate sits for the purpose of inquiring into a criminal accusation 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 accusationHonorableBurton 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 magistratemay examine the witnesses;and the accused has the same right. The purpose of a preliminaryexaminationis threefold: (1) To inquire concerningthe commissionof a crime and the connectionof the accusedwith ft, in order that he may be informed of the nature and the characterof the crime charged against hfm, and, if there is probable cause for believinghim guilty, that the State may take the necessary steps to bring hfm to trial, (2) To preserve the evidence and keep the witnesseswithin the control of the State. (31,To determine the amount of bail if the offense is bailD The Constitutionof the United States does not require that the accused be furnished counsel at a preliminaryhearing 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'counsel under the provisionsof the Federal Constitution does 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 constitutional or statutory provisions,there is no requirementthat counselmust be appointed for the accused at a reliminaryexamination. 22 C.J.S, Grim. Law, !8 339(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 practicingattorneys to defend hfm, The counsel so appointed shall ha trial." 'i

e at least one day to prepare for Emphasis added) Under this Article it was mandatory for a court, upon the arraignmentof an indigentdefendantaccused of ad-

.

HonorableBurton S, Burks, Sr. Page 3 OpinionNo. WW-m /3&o

capital offense, to appoint counsel. Holton v. State, 158 SW2d 772 (Tex.Crim.1942, cert. den. 316 U.S.xExuarte Bushnell, 353 SW2d 438 (Tex,Crim.1962). This Article,however, did not apply to non-capitalfelonies. C~ummings v. State, 282 SW 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-iponthe arraignmentof the accused. & parte Mays, 212 SW2d 164 (Tex,Crim,19481, Ex parte Grayson, 217 SW2d 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 chargedwith a felony is too poor to employ counsel,the court shall appoint one or more practicingattorneys to defend hipn. "The counsel so appointed shall have ten days to prepare for trial unless such time be waived in writing by said attorneysand 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 indigentdefendant,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 discretionof the trial judge, be paid a fee in the sum of $25.00 per day for each day such appointedattorney & actually in trial court representingthe
Persou he has been appointed to represent...." Emphasis added)Bonorable Burton S0 Burks, SP. Page 4 OpinionNO! 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 destituteof means to provide counsel,and that he has not been zleased on bail bond." (Emphasisadded) By the language of the above quoted section, the appointed counsel can only be paid for the days he is actually in trial court0 The magistrate,under Article 245, is sitting as an "examiningcourtl' and not as a trial court 0 Art. 35 (Tex.Crim.19091.

V,C.C,P.;Brown v0 State, 118 SW 139 The accused fs not required to defend himself upon the merits of the case and the magistrate is not empoweredto pass final judgmentupon the guilt or innocenceof the accused. The magistratehas only the authority to make an order committingthe defendant to the jail of the proper county, discharging him, 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 examiningcourt. It is our opinion, therefore,that a magistrate is not authorizedunder Article 494 to appoint counsel to represent a defendant charged with either a capital or noncapital felony in an examiningcourt. Your questions 1, 2, and 3 arw thereforeanswered in the negative,

SUMMARY
A magistrate sitting as an examining court is not authorizedunder Article 494, V,C.C.P*, to appoint counsel to represent an indigent defendant chargedwith a capital or non-capitalfelony, and the CommissiDners Court is not authorized to pay a courtappointedattorney for servicesrendered at en examiningtrial+ Very truly' yours, WILL WILSON Attorney General of Texas MPS:bjh-- .

HonorableBurton S. Burks, Sr. Page 5 OpinionNo. WW-EEEh/320

By~f~f~~ Marvin F. Sentell AssistantAttorney 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.