QCIIALD c. MANN 

*-.umwA 

OFFlCE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Eonorahle Murphy a01 e 

county Auditor 

Liberty County 

Liberty, texmi 

Dear Bir( 

Te roknorledge ri 

ter or May 

eontrlned Ln pour 

letter of May 

originally 

receipt of pour letest Sor m3 opinion 88 

ccordance rith your 

ur request and as 

f May et& rlll 

lainfs charged 

, all oomp1aints 

itted at different 

were charged with 

ely ahioen theft.* 

tice hold the lhmninlng Trial 

endants at the sane time or must 

g trial for each ofienseT 

be tried mparately -- 8nd 

on all four offenees oharged 

*If all defendants waive nrsanlning trial 

is the Justice entitled to a fee' the County 

Attorney,not present on the tria i b;p am% not 

putting on any evibeneeV 
Honorable Murphy Cole, May 29, l998, Page D 

Article, lODO, Code of Criminal Procedure, l925, as 

amended by 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 atlowed by law for sImflar services in 

misdemeanor oases to Justioes of the Peace, 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 Dietr ioaud t 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 proseauted by him before such court. Buch fee 

shall not be paid exaept in oases where the testimony 

of the material ritnesses to the trausaction shall 

be reduoed to writing, aubsoribed and sworn to by 

aaid witnesses; aud provided further that such 

m-l&ten testimony of all material 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 clerk rho 

shall reoeipt him and shall keep said testimony in 

the files of his office for a period of five years. 

sIbhe fees mentioned in this Article shall beGone due and payable only after the indictment of 

the defendant for an offense based 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 

shall present to the District Judge the testtiony 

transoribed in the ermnining trial, rho shall examine 
Ponorable Murphy Cole, Day 99, l999, Page 8 

the ssme and certify that he 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 the material witnesses has been riled 

with said District Clerk in aooordance with the 

preceding paragraph, shall be attached to said account before such District or.County Attorney shall 

be entitled to a See in any felony case for seryices 

performed before an exsmlnlng court. 

@Only one fee shall be allowed to any officer 

mentioned herein for services rendered 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 officer where 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 the provislons of this 

Article have been Complied with.* 

Article 999 of the Code of Criminal Procedure, l92& 

proridear 

*The accused may waive an examining trial in 

any bailable case and oonsent for the magistrate 

to require bail of him; but the prosecutor or 

magistrate may examine the witnesses for'the State 

as In other cases. Phe magistrate shall send to 

the proper 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 shall be allowed In all 

oases that should have been so joined. While this provision 

places a limitation on the fees under such clroumstances, we 
Honorable Murphy Cole, Day ~29, 1939, Page 4 

I 

Sina no statutory prohibition against holding exmmdnlng trials 

separately for each defendant iueach Wime or'#Senme charged. 

A proper oonstruction of 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'may not 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 

oomplaints with the mane crfminal act or offsnme, regardless of 

whether or not mn exaslning trial is held for each, the mtatute 

limits the justloe to only one.exsminiag trial fee for the offense or erlminal sot committed jointly by all. Xt has long 

been the policy of the state to allow only one much examining 

trial See In much cases. In all cases that could have been mo 

joined, the mtatute only authoriees one exsminlng trial fee. 

2% answer to your first question, It is the optimion 

of this department that the justice may hold one examining 

trial of five defenlknts charged with the same oSfense or 

orlmlnal act. Xhere the Sive~defendants are by three additional complaints charged with three other offenses, of the 

mane nature but different transactions, sn exsmlning trial on 

each complaint should be accorded all the defendants. It I.8 

not mandatory that each defendant be given an examining trial 

meparate from the other defendants so charged, all beiag in' 

oumtody. 

Pour attention Is direoted to the provisions of 

Article 1020, supra, which provides the Sees to which a fuetice 

of the peace shall be entitled In each case Where a fustioe OS 

the ueace shall sit as an exsr&i%F court in a felony Cake. 

Article 290, supra, authorimes the justices to proceed with mn 

exsminlng trial eren though the defendant8 waive mate. Porch 

. State, 51 Cr. Rep. 7, DQ S. X. ll24. Xhe fact that the 

oounty attorney was not present on the trial day and did not 

put on any evidence would not necessarily prevent the justice 

of the peace from examining the witnesses or holding an examining trial under the provisions of the statutes set forth herein. Such fact question is authorized to be passed upon by 

the District Court when the acoount of the justiae for his See 

is presented for approval. 
- 

- 

Honorable Murphy Oole, May 29, lS3SBI page 5 

In answer to your meoond question, therefore, it is 

the opinion of this department that where all defendants waive 

exemlning trial for the mmme oiiense or criminal act charged, 

the justice being authorieed to proceed, must aomply with the 

provisions of Article ~8, Code of Criminal Prooedure, 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 OF TEXAS 

(APPROVED 

(Opinion Committee 

(By EQB, Chainnau.