Honorable Joe Resweber 

Cpunty Attorney 

Opinion NO. (c-654) 

Harris County Re: Appointment and CompenHouston, Texas sation of attorneys to represent ,accused persons 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 the peace appoint an 

attorney for accused in examining trials 

held by him? 

Is an arraignment the same~as an examining 

trial, as used in Article 

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 or more 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 set by Article 

26.05,Jc.c.p.~ to be paid upon the trial 

of the case?" 

For convenience we will number the paragraphs of this 

opinion so as to correspond with the numbers you have given 

the questions. 

-3163- 
Honorable Joe Resweber, page 2 (c-654) 

1. A justice of the peace may appoint counsel to 

represent an accused in an examining trial held by him 

only. Article 16.01, Code of Criminal Procedure, 1966, 

concerning examining trials, provides as follows: 

"pen the accused has beenbroughtbefore a 

magistrate for an examining trial that 

officer shall proceed to examine Into the 

truth ofttie accusation made, allowing the 

accused, however, sufficient time to procure counsel. In a proper case, the magistrate may appoint counsel to represent an 

accused in such examining trial only, to 

be compensated as otherwise provided in 

this code. The accused in any felony case 

shall have the right to an examining trial 

before indictment in the county having 

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 sufficiency of ball if a 

bailable case." 

Prom the above quoted article it seems clear that 

a'magistrate has 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 justices of the peace as magistrates. In view 

of the foregoing, it is the opinion of this office that 

a justice of the peace may appoint an attorney for an 

accused fin an examining trial held by said justice of 

the peace. 

2. Your second question is answered in the negative 

since it is the opinion of this office that an arraignment 

as described in Article 26.04, Code of Criminal Procedure, 

1966, Is not the same as an examining trial as described 

in Article 16.01.. In the first place; it should be noted 

that Chapter 16 of the Code, and the numerous provisions 

thereof, is almost entirely concerned with the setting out 

of various rules of procedure which apply to examining trials, 

such as the taking of testimony therein. On the other hand, 

Chapter 26, of the Code.1966, dealing with arraignment, has 

no similar procedure set forth, and in fact Article 26.02, 

thereof states that the purpose of an arraignment is simply 

for the fixing of the identity of the defendant and hearing his plea. Apparently the only other thing to be done 

at time of arraignment would be the appointment of counsel 

if necessary. We therefore observe that there is a vast 

_. -3164- 
Honorable Joe Restieber, page 3 (C-6?‘+) 

di.stinction made by the Legislature with regard to arraignment and examining trials, and it seems clear that that 

body intended there be a distinction between the two. In 

addition to this, a distinction between an arraignment and 

an examlninn trial was aointed out in Attornev 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 

.to represent the accused in an examining trial shall be 

"compensated as otherwise provided in this code". The 

only provisions providing for compensation of appointed 

counsel are contained in Article 26.05, Code of Criminal 

Procedure, 1966. However, Article 26.05 would on its 

face seem to be applicable only to a situation where 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 magistrate holding 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 .first reading indicate 

that an attorney appointed to represent an accused in an 

examining trial Would not be compensated for his efforts. 

Its is 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 attorney would 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- 

'pensation in accordance with the terms of Article 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 

3 provides as ,follows: 

"All payments made under the provisions of this Article may be included as costs of court." 

Although this provision is of course discretionary 

~with the court, it seems clear that in many instances, in 

L -3166- 
Honorable Joe Resweber, page 4 (c-654) 

both felonies and misdemeanors, indigent persons for whom 

attorneys have been, appointed would be charged a sum of 

money for their decision to excercise their constitutional 

right to counsel. 

In-Gideon vs. Wainwright, 372 U.S. 335, (1963), an 

unanimous Supreme Court held that the Sixth Amendmentls 

provision that in all criminal prosecutions the accused 

shall enjoy the right to have the assistance of counsel for 

his defense was made obligatory upon the states by the 

Fourteenth Amendment. In a concurring opinion, Mr. Justioe 

Harlan pointed out that it was not necessary to decide in 

Gideon whether the ,decision applied to all criminal cases 

as ODDOSed to onlv those which carried the Dossibilitv of 

;h&;;;ial r&on sentence. However, in-Harv;y vsi 

Mlssissi i, 3 ~0 F. 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, invalidated his 

guilty plea .and rendered his conviction and 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 

accused has the right to the assistance of counsel. Additionally, Article 26.05, Section 1, provides for the appdntment of counsel in all felonies and misdemeanors punishable 

by imprisonment. We are thus confronted with 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 excercises his right to have the assistance of counsel 

and has one appointed for him by the court will be charged 

a sum of money simply because he excercises his right. 

In Griffin vs. Illinois, 351 U.S. 12 (1956), the United 

States Supreme Court held that an indigent defendant was 

entitled to have free of costs an appellate record in order 

that he might perfect an appeal of his conviction. Al-. 

though we realize that Griffin is not directly in point here, 

it is analogous to our situation. Then in Griffin vs. California 380 U.S. 609 (1965), the United 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 applicable here since to assess 

a charge against a defendant in the evefit he excercises hi.s 

constitutional right to the assistance of counsel cuts down 

on this privilege by making its assertion costly. We are 

.- 

-3166: 
Ebnorable Joe Resweber, page 5 (C-654) 

of the opinion, therefore, that Section 3 of Article 26.05 

js unconstitutional. 

5. An attorney appointed for an examining trial is 

sppointed to represent the accused in the examining trial 

only. Article 16.01, quoted earlier in this opinion, states, 

&Tong other thtngs, that the magistrate may appoint counsel 

to represent an accused in an examining trial only. We interpret this provision to mean tnat a magistrate, before whom 

a person is brought for an examining trial, has the authority 

to appoint counsel for the purpose of representing the accused 

only in the examining trial. Therefore, if subsequent appointucnt of counsel is deemed necessary by the trial court, said 

court has the duty to appoint the same or a different attorney 

to represent the accused after the examining trial, and 

the additional fees as prescribed in Article 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 justice of 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 is necessary 

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