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 before Juvenile Courts concerning children accused 

Dear Mr. Resweber: of fel.ony or misdemeanor. 

You have requested an opinion of .this office regarding the captioned question. 

Article 26.05 of the Code of Criminal Procedure provides, 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 arraignment 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,hild stands 

accused of acts which would constitute a felony or misdemeanor 

punishable by imprisonment if he were of age, since the juvenile 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 Article 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 JURISDICTION. (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 fifteen years 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 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 investigation 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 Application 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 implication. Section 18, Article V, Constitution of Texas; Article 

2351, Vernon's Civil Statutes; Bland v. Orr, 90 Tex. 492, 

39 S.W. 558 1897 ; 

40 S.W. 402 I 1897 1 * 

Mills v. Lampasas County, 90 Tex. 603, 

1084 (19415; 

Anderson v. Wood, 137 Tex. 201, I.52 S.W.2d 

451 (19@ ; 

j 

Canaies v. Laughlin 

Starr County v. Gueria 

147 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 attorney s appointed by the court to 

represent juveniles in the juvenile court except as hereinabove noted. 

SUMMARY 

Article 26.05, C.C.P., is not now applicable 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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