Honorable Joe Resweber CpuntyAttorney Opinion NO. (c-654)

Harris County Re: Appointment and CompenHouston, Texas sation of attorneys to represent ,accusedpersons in Dear Mr. Resweber: examining trials.

In a recent.opinion request of this office you pose the following questions:

“1.

“2. Can a justice of thepeace appoint an attorney for accused in examining trials held by him?

Is an arraignment the same~as an examining trial, as used inArticle and Article 26.04, c.c.P.?16.01, C.C.P.,

“3.

“4. i /

“5. By what amount is an attorney to be compensated for representing an accused in an examining trial?

Where the same attorney represents two or more persons in one ormore courts on the
same day and the fees for appointed counsel
are included in the costs of court under Article 26.05,E.c.~., to whom are such costs to be taxed?

Does the attorney appointed for an examining trial have to represent the accused in a subsequent trial in County or District Court for the same fee, or does the,Judge of the County or District Cour,t have the duty to appoint the same or a different attorney at additional fees setby Article 26.05,Jc.c.p.~ to be paid upon the trial of the case?"

For conveniencewe will number the paragraphs of this opinion so as to correspondwith the numbers you have given the questions.

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1. A justiceof thepeace may appoint counsel to represent an accused in an examining trialheld by him only. Article 16.01, Code of CriminalProcedure, 1966, concerning examining trials,provides as follows:

"pen the accused has beenbroughtbefore a magistrate for an examining trial that officer shallproceed to examine Into the truthofttieaccusationmade, allowing the accused, however, sufficient time toprocure counsel. In a proper case, themagistratemay appoint counsel to representan accused in such examining trial only, to be compensated as otherwiseprovided in this code. The accused in any felony case shall have the right to an examining trial before indictment in the countyhaving jurisdiction of the offense,whether he be in custody or on ball, at which time the magistrate at the hearing shall determine the amount or sufficiencyof ball if a bailable case."

Prom the above quoted article it seems clear that a'magistratehas the authority to appoint counsel to represent an accused in an examining trial only. Article 2,09, Code of Criminal Procedure, 1966, among other things, designates justicesof thepeace as magistrates. Inview of the foregoing, it is the opinion of this office that
a justice of the peace may appoint an attorney for an accused finan examining trial held by said justiceof thepeace.

2. Your second question is answered in the negative since it is the opinion of this office that an arraignment
as described inArticle 26.04, Code of Criminal Procedure, 1966, Is not the same as an examining trial as described inArticle 16.01.. In the firstplace; it shouldbe noted that Chapter 16 of the Code, and thenumerous provisions thereof, is almost entirely concernedwith the setting out of various rules of procedurewhich apply to examining trials, such as the taking of testimony therein. On the otherhand, Chapter 26, of the Code.1966, dealingwith arraignment,has
no similar procedure set forth, and in factArticle 26.02, thereof states that the purpose of an arraignment is simply for the fixing of the identityof the defendant and hearing his plea. Apparently the only other thing to be done at time of arraignmentwould be the appointment of counsel ifnecessary. We therefore observe that there is a vast

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di.stinction

made by the Legislature with regard to **arraign** ment and examining trials,and it seems clear that that body intended there be a distinctionbetween the two. In addition to this, a distinctionbetween an arraignment and
an examlninn trial was aointed out inAttornev General's Opinion No.-WW-1320 and-Brown v. State, 118 SW 139 (Tex. Grim. 1909).

. 3. Article 

### 16.01. provides that an attorney appointed .torepresent the accused in an examining trial shallbe "compensatedas otherwiseprovided in this code". The only provisions providing for compensation of appointed counsel are contained inArticle 26.05, Code of Criminal Procedure, 1966. However,Article 26.05 would on its face seem to be applicable only to a situationwhere the appointed counsel had been in "trial court". All of the provisions of 26.05, setting out fees to be paid appointed counsel in instances other thanon appeal, speak in terms of days spent in trial court. It seems clear that a magistrateholding an examining trial would not be a "trial court" as that term is used in the statute,and the language of **Article** 26.05 would at .firstreading indicate that an attorney appointed to represent an accused in an examining trialWould not be compensated for his efforts. Itsis our opinion, however, that the Legislature intended that an attorney appointed under the provisions of Article 

### 16.01,be con ensated in accordance with the provisions of Article 2%

### .05. Article 

### 16.0'1. clearly contemplates that such an attorneywould be compensated as provided in the code. Article 26.05 contains the only provisions related to compensation of appointed attorneys, and it is the opinion of this office that an attorney appointed under the provisions of Article 

### 16.01,would be eligible for com- 'pensationin accordance with the terms ofArticle 

### 26.05.

~4. You next inquire if the same attorney represents two ormore persons in one or more courts on the same day and the fees for appointed counsel are included in the costs of court under Article 26.05, to whom are such court costs to:, 'b&l~.taxed.

. We are of the opinion that Section 3 of **Article** 26.05 is unconstitutional, and therefore. do not address ourselves to your specific'question. Said Section 3provides as ,follows:

"All payments made under theprovisions of this Article may be included as costs of court."
Although this provision is of course discretionary ~withthe court, it seems clear that inmany instances, in

L 

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both felonies andmisdemeanors, indigentpersons forwhom attorneyshave been,appointedwould be charged a sum of money for their decision to excercisetheir constitutional right to counsel.
In-Gideonvs. Wainwright, 372U.S. 335, (1963), an unanimous Supreme Court held that the SixthAmendmentls provision that in all criminalprosecutions the accused shall enjoy the right to have the assistanceof counsel for his defensewas made obligatory upon the statesby the FourteenthAmendment. In a concurringopinion,Mr. Justioe Harlan pointed out that itwas not necessary to decide in Gideon whether the ,decisionapplied to all criminal cases as ODDOSed to onlv thosewhich carried the Dossibilitv of ;h&;;;ial r&on sentence. However, in-Harv;yvsi Mlssissi i, 3~0F. 2a 263 (lg63), the Court of ppea s for

Circuit held that the failure to advise a person accused of a misdemeanor, punishable by possible confinement, of his rightto the assistance of counsel, invalidatedhis guiltyplea .andrenderedhis convictionand subsequent incarceration constitutionally improper. We think it clear, therefore, that in all felonies and at least in all misdemeanors punishable by possible confinement-in jail, the accusedhas the right to the assistanceof counsel. Additionally,Article 26.05, Section 1,provides for the appdntment of counsel in all felonies andmisdemeanorspunishable by imprisonment. We are thus confrontedwith the situation that if Section 3 of Article 26.05 is allowed to stard, there will be many instances in Texas when an indigent defendant who excerciseshis right to have the assistance of counsel and has one appointed for him by the courtwill be charged
a sum of money simply because he excerciseshis right.

In Griffin vs. Illinois, 351U.S. 12 (1956), the United States Supreme Court held that an indigent defendantwas entitledto have free of costs an appellate record in order that he might perfect an appeal of his conviction. Al-. thoughwe realize that Griffin isnot directly inpoint here, it is analogous to our situation. Then in Griffin vs. California 380U.S. 609 (1965), theUnited States Supreme Court li??m-i t at adverse comment by a prosecutor or a trial judge upon a defendant's failure to testify in a State criminal trial violates the Federal privilege against compulsory self incrimination,because such comment "cuts down on the privilege by making Its assertion costly.('We believe the reasoning in Griffin to be applicablehere since to assess a charge against a defendant in the evefit he excerciseshi.s constitutionalright to the assistance of counsel cuts down
on this privilege bymaking its assertion costly. We are

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of theopinion, therefore, that Section 3 of Article 26.05 jsunconstitutional.

5. An attorney appointed for an examining trial is sppointedto represent the accused in the examining trial only. Article 16.01, quoted earlier in this opinion, states, &Tongother thtngs, that themagistrate may appoint counsel torepresentan accused in an examining trial only. We interpret thisprovision to mean tnat a magistrate, before whom
a person is brought for an examining trial, has the authority toappoint counsel for the purpose of representing the accused only in the examining trial. Therefore, if subsequent appointucntof counsel is deemed necessary by the trial court, said courthas the duty to appoint the same or a different attorney torepresentthe accused after the examining trial, and theadditional fees as prescribed inArticle 26.05, should be.paid.

CJ

t : SUMMARY -------

A justice of the peace m&y appoint an attorney for an accused in an examining trial.held by said justiceof the peace. An arraignment is not the same as an examining trial. An attorney appointed to represent an accused in an examining trial is to be compensated In accordance with the provisions of Article 26.05, C.C.P., 1966. Section 3 of Article 26.05 is unconstitutional. An attorney appointed by a magistrate for the purpose of representing an accused in an examining trial is appointed for that purpose only, and if appointment.ofcounsel isnecessary for the accused subsequent to the examining trial, the appropriate trial court has the duty to appoint the same or a different attorney to represent the accused.

Yours very truly,

WAGGONER CARR Attorney General of Texas