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 defendant 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, authorized under 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, authorized under the law to 

appoint counsel to represent an 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 

'examining court,"" 

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 

sufficient time to nroeure counsel." 

(Emphasis added) 

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 examination is threefold: (1) To inquire concerning the 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 necessary steps to bring hfm to trial, (2) To preserve the evidence and keep the witnesses within the control of the State. 

(31,To determine the amount of bail if the offense is bailD 

The Constitution of the United States does not require 

that the accused be furnished counsel at a preliminary hearing fn the prosecution for 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 provisions of the 

Federal Constitution does not accrue until an indictment is 

returned or an information or- 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 requirement that counsel must 

be appointed for the accused at a reliminary examination. 

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 practicing attorneys 

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 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 

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-capital felonies. C~ummings v. 

State, 282 SW 227 (Tex.Crim. 1926). Even in capital cases, 

the imuerative dutv of a court to appoint counsel arose only 

on a&isal that accused was too ~0% to emoloy counsel, and 

only-ipon the arraignment of 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 

Legislature to read as follows: 

"Whenever it is made known to the court 

at an arraignment or 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." (Emphasis added) 

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 compensation in 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 representing the 

P 

ersou he has been appointed to represent...." 

Emphasis 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 provide counsel, and that he has not been zleased on bail bond." (Emphasis added) 

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 "examining courtl' 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 empowered to pass final judgment upon the guilt or 

innocence of the accused. The magistrate has only the 

authority to make an order committing the 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 particularly Section 2 of the amending act of Art. 

494, does not manifest an intent by the Legislature to 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 represent a defendant charged with either a capital or noncapital 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 courtappointed 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.