QCIIALD

c.MANN *-.umwA OFFlCE OF THE ATTORNEY GENERAL OF TEXAS
**AUSTIN**

Eonorahle Murphy a01e county Auditor Liberty County Liberty, texmi
Dear Bir(

Te roknorledge ri ter **or** May eontrlned Ln pour letter ofMay originally receipt of pour letest Sor m3 opinion 88 ccordancerith your ur request and as

f May et& rlll lainfs charged

, all oomp1aints itted at different were chargedwith ely ahioen theft.* ticehold the lhmninlng Trial endants at the sane time ormust g trial for each ofienseT be tried mparately -- 8nd on all four offenees oharged

*If all defendantswaive nrsanlning trial is the Justice entitled to a fee' the County Attorney,notpresent on the triai b;p am% not putting on any evibeneeVHonorableMurphy Cole,May 29, l998,Page D

Article,lODO, Code of CriminalProcedure, l925, as amendedby the Acts of lva3, 4Drd Legislature, Chapter 08, reach in part as Sollors~

*In each case where a County Judge or a Justice tif

the Peaoe shall sit as au examining oourt iu a felony 8ase, they shall be entitled to the name fees atlowedby law for sImflar services in misdemeanor oases toJustioes of thePeace, aud ten Gents for each one hundred words for writing dom the testimony, to be paid by the gtate,not to exceed mree aud go/200 ($3.00)Dollars, for all his .menloes In rrhy one ease.

w

...* l Dietriot

aud County Attorneys, for attendiug and prorreeuting my felony case before an examining court, shall be entitled to a See of Tire aud no.100 (g&00) Dollars, to be paid by the State for each ease proseautedby him before such court. Buch fee shall not be paid exaept in oases where the testimony of thematerial ritnesses to the trausaction shall be reduoed to writing, aubsoribed and sworn to by aaidwitnesses; aud provided further that such m-l&ten testimony of allmaterial witnesses to the trausaotion shall be delfvered to the District Clerk uuder seal,rho shall deliver the ssme to the fore- -au of the grand jury and take his receipt therefor. guoh foreman shall, on or before the adjourxment of the grand jury,return the same to the clerkrho shall reoeipt him and shall keep said testimony in the files of his office for a period of five years. sIbhefees mentioned in thisArticle shallbeGone due and payable only after the indictmentof the defendant for an offensebased upon or growing out of the Charge filed in the ezsmining court and upon an itemized account, sworn to by the officers claiming suoh fees, approved by the Judge of the District Court, and said County or District Attorney shallpresent to the District Judge the testtiony transoribed in the ermnining trial, rho shall examinePonorableMurphy Cole,Day 99, l999, Page 8

the ssme and certify thathe has done so and that he finds the testimony of one or more witnesses to be materialr and provided further that a oerttiioate from the District Clerk, showing that the written testimony of thematerial witnesses has been riled with said District Clerk in aooordancewith the preceding paragraph, shallbe attached to said account before such District or.CountyAttorney shall be entitled to a See in any felony case for seryices performed before an exsmlnlng court. @Only one fee shallbe allowed to any officer mentioned herein for servicesrendered in an examining tria$ though more .than One defendant is joined in the oomplaint, or a severance is had. Then defendants ,are

proceeded against separately,who could have been proceeded against jo$ntly,but one fee shall be allowed in all cases that could have been ao joined. Eo more than one fee shall be allowed to any officerwhere more than one Case Is filed against the ssme defendant for offenses growing out of the same oriminal act or transaction. The account 

### 0s the officer and the approval of the District Judge must affirmatively show that theprovislons of this Article have been Compliedwith.* Article 999 of the Code of CriminalProcedure, l92& proridear *The accusedmay waive an examining trial in any bailable case and oonsent for themagistrate to requirebail of him; but the prosecutor or magistrate may examine the witnesses for'the State as In other cases. Phemagistrate shall send to theproper clerk with the other proceedings ~3.n the oaae a list of the witnesses for the State, their residence and whether examined,' The above Articrle lC#) provides that when the defendants are proceeded against separately,who could have been proceeded against jointly,but one fee shallbe allowed In all oases that shouldhave been so joined. While this provision places a limitation on the fees under such clroumstances,weHonorableMurphy Cole,Day ~29,1939,Page 4

I Sina no statutoryprohibition against holding exmmdnlng trials

separately for each defendant iueach Wime or'#Senme charged. A proper oonstructionof the statute, **would be**  to give reoognitlon to the defendant8 ahharged in **more** than one came, to each Crimea

or offense for which they are charged, and **for** each much case or offenme, aocord them a separate examining trial. 6hould the defendants offer no objection,we mee no reason why the justioe'maynot hold one examining trial for all ofrenmem or separate tranmaetions for mhloh all the defendants are oharged. Porker, where five defendants are **charged** by separate oomplaintswith the mane crfminal act or offsnme, **regardless** of whether or not mn exaslning trial is held for each, the mtatute limits the justloeto only one.exsminiag trial **fee** for the offense or erlminal sot committed jointlyby all. Xt has long been thepolicy of the state to allow only one much examining trial See In much cases. In all cases that couldhave been mo joined,the mtatute only authoriees one exsminlngtrial fee.

2% answer to your first question, It is the optimion of thisdepartment that the justicemay hold one examining trial of five defenlknts chargedwith the same oSfense or orlmlnal act. Xhere the Sive~defendantsareby three additional complaints charged with three other offenses, of the mane naturebut different transactions,sn exsmlningtrial on each complaint shouldbe accorded all the defendants. It I.8 not mandatory that each defendantbe given an examining trial meparate from the other defendants so charged, allbeiag in' oumtody.
Pour attention Is direoted to the provisions of Article 1020, supra, which provides the Sees to which a fuetice of thepeace shall be entitled In each caseWhere a fustioeOS the ueace shall sit as an exsr&i%F court in a felony Cake. Article 

### 290, supra, authorimes the justicesto proceed with mn exsminlng trial eren though the defendant8waive mate. Porch

. State, 51 Cr. Rep. 7, DQ S. X. ll24. Xhe fact that the oounty attorneywas not present on the trial day and did not put on any evidence would not necessarilyprevent the justice of thepeace from examining the witnesses or holding an examining trial under theprovisions of the statutes set forth herein. Such fact question is authorized to be passed upon by the District Court when the acoount of the justiaefor his See is presented for approval.-

-

HonorableMurphy Oole,May 29, lS3SBI page 5

In answer to your meoond question,therefore, it is the opinion of thisdepartment that where all defendants waive exemlningtrial for the mmme oiiense or criminal act charged, the justicebeing authorieed to proceed,must aomplywith the provisions of Article ~8, Code of CriminalProoedure, se& before being entitled to a See for holding an exmninlng trial.

Trusting the above mnmwerm your requests,we remain
Xours very truly
ATTORTEX GRTERAL OF TlUAS

W.lllmn J. 8. .P;ing

Amsietmnt

APPROYJRII (Signed)Qerald 40 Mann ATTOItHEX

GMERAL OFTEXAS (APPROVED (Opinion Committee (By EQB, Chainnau.