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 tomatters before Juvenile Courts concerning children accused Dear Mr. Resweber: of fel.onyormisdemeanor.

You have requested an opinion of .thisoffice regarding the captionedquestion.

Article 26.05 of the Code of Criminal Procedureprovides, in part, as follows:

"A counsel appointed to defend a person accused of a felony ormisdemeanor punishable by imprisonment.shallbe paid from the general fund of the county in which theprosecution was instituted according to the following schedule
. . .' (Emphasisadded) 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)."- (Emphasisadded) Article 26.04(a), Code of Criminal Procedure,provides as follows: "Whenever the court determines at an

arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishableby imprisonment is toopoor 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 callwitnesses and hear any relevant testimony or other evidence."

-512- iHon. JoeResweber, Page 2 (M-111)

It is the opinion of this office, therefore,that Article 26.05, Code of Criminal Procedure, is not presently applicable tomatters before juvenile courts even though the c,hildstands accused of acts whichwould constitutea felony or misdemeanor punishableby imprisonment if he were of age, since the juvenile court proceedingsare 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 thatHouse Bill 780, 60th Leg., tobecome effectiveAugust 2e, 1967, will authorizepayments for appointed counsel as specified in Article 26.05, c.c.P., in those hearings in the juvenile court on the issue of waiver of juvenile court jurisdictionand transfer of the case to the appropriate court for criminal proceedings.

Section'6 ofArticle 2338-1,V.A.C.S. will read as follows: "Section 6. TRANSFERAND WAIVER OF JURISDICTION. (a) When a child under the jurisdiction of a courtmoves from one county to another the courtmay transfer the case to the court in the county of the child's residence if the transfer is in the child'sbest interest. The transferring court shall forward transcriptsof 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 chargedwith the violation of a penal law of the grade of felony and was fifteenyears of age or older at the time of the commission of the alleged offense, the juvenile court may, within a reasonable time after the alleged offense,waive jurisdictionby 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 criminalproceedings. "(c) The juvenile court shall conduct an Anformal hearing under Section 13 of thisAct 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 investigationof the child, his circumstances,and the circumstancesof the alleged offense.

-513 -Hon. JoeResweber, Page 3 (M-111)

We are not unmindful of the recent holding in theApplication of Gault, E7 S.Ct. 1428 (1967)guaranteeinga juvenile protection of certainbasic constitutionalrights including appointment of counsel; however, the Commissioner's Cour~t is a court of limited jurisdictionand has only suchpowers as are conferred upon itby the statutesand Constitution of this State, whetherby express terms orby necessary implication. Section 18,ArticleV, Constitution of Texas; Article 2351,Vernon's Civil Statutes; Bland v. Orr, 90 Tex. 492, 39 S.W. 558 1897 ;

I 1 40 S.W. 402 1897 * Mills v. Lampasas County, 90 Tex. 603, 1084 (19415; Anderson v.Wood, 137Tex. 201, I.52 S.W.2d 451 (19@ ;

j Canaies v. Laughlin Starr County v. Gueria147 Tex. 169, 214 S.W. 2d
APP. 1956 ; 297 S.W. 2d 379 (Tex.Civ.

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 appointedby the court to represent juveniles in the juvenile court except as hereinabove noted. SUMMARY

Article 26.05, C.C.P., is not now applicable tomatters 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 jurisdictionwill 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. JotResweber, PaCe Ik(M-111)

Preparedby Robert Owen AssistantAttorney General APPROVED: OPINION COMMITTZE Hawthorne Phillips, Chairman Kerns B. Teylor, Co-Chairman Jo Betsy Lewallen Howard M. Fender Robert Darden STAFF LEGALASSISTANT A. J. Carubbi, Jr.

- 515 -