Ron. John L. David,

CountyAttorney OpinionNo. M- 195
Dallam County Courthouse Re: "WhetherVernon's Code Dalhart,Texas 79022 of Criminal Procedure authorizes appointment of counselby a magistrate for an indigentprior to examining trial,how indigency is determined, and theproper fees and investigationexpenses I to be paid by a county Dear Mr. David: in relation thereto.

Your recent request the followingquestions: for an opinion of this officepresents

1. Whether a magistrate is authorized to appoint counsel for an indigent at the time such accused is brought beforehim followingarrest?

~2. Whether the county is authorized to pay a fee to such attorney appointedby the magistrate?

3. What constitutes'indigencyso as to require appointment of counsel for an accused?

4. Whether a court-appointed,non-residentattorney in a capital case is entitled to'reimbursementfor expenses such as travel, room and board?

Regardingyour firstquestion,Article 14.06*provides the following:

*Unless otherwisenoted, allArticles cited herein refer to Vernon's Code of Criminal Procedure.

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“In each case enumerated in this Code, the personmaking the arrest shall take the person or have him takenwithout unnecessarydelay before themagistratewho may have ordered the arrest or before some magistrate of the county where the arrestwas made without an order. The magistrate shall immediatelyperform the &ties described inArticle 15.17 of this Code." (Emphasisadded).
Article 15.17 reads as follows:

"Ineach case enumerated in this Code, the personmaking the arrest shallwithout unnecessary delay take the person arrested or have him taken before somemagistrate of the countywhere the accusedwas arrested. Themagistrate shall inform in clear language the pp accusation againsthim and of any affidavits filed therewith, of his right to retain counsel, of his right to remain silent, of his right to have an attorneypresent during any interviewwith peace officers or attorneys representing the State, of his right to terminate the interview at any time, of his right to request the appointment of counsel if he is indigent and cannot 'a'ffo'rd counsel, and of his rrght to have an exam- "ingtrial. He"shal1 also inform the person a&s&d -thaf~he"isnot required tomake a statement and that anv statementmade bv him mav be used against him: The magistrate shall aliow the person arrested reasonable time and opportunity to consult counsel and shall admit the person arrested to bail if allowedby law." (Emphasisadded.) Magistratesmay appoint counsel for an indigent at an examining trial by virtue of Article 16.01,which provides as follows:

"When the accusedhas been brought before a magistrate for an examining trial that officer shallproceed to examine into the truth of the accusationmade, allowing the accused,however, sufficient time to procure counsel. In a

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proper case, themagistratemay appoint counsel to represent an accused in such examining triar on&;,~~e" comp.ensated,,as otherwiseprovided r The accused in any felony case shall have the right to an examining trialbefore indictment in the county having jurisdictionof the offense,whether he be in custody or on bail, at which time themagistrate at the hearing shall determine the amount or sufficiencyof bail, if a bailable case." (Emphasisaddend.)
Article 2.09 designateswho magistrates are within the meaning of the Code:

"The judges of the SupremeCourt, the judges of the Court of CriminalAppeals, the judges off the District Court, the county judges, the judges of the county courts of law, judges of the county criminal courts, the justices of the peace, the mayors and recorders and judges of the city courts of incorporated cities or towns."
Whenever an investigationand interrogation centers on an accused,his rights tb an attorney shall be accorded to him upon request; and once such request ismade, no further interrwation mav take olace in the attornev's absence. '.Escobe& v. Illinois, li~L.ed 2d 977, 94 S.k. 1759, 370U.S. WInMiranda v.Arizona, 16 L.ed 2d 694, 86 S.Ct. 1602, 384 U.S. 4n966) , the United States Supreme~Court imposed
a dutv on arrestinc officers to warn the accused at the time he is taken into "custody"and before interrogationbegins of his right to counsel, and, if hendigent, his right to have the court appointhim counsel.

SinceArticle 16.01 specificallyauthorizesmagistrates to appoint an attorney to represent an accused in a proper case at an examining trial, and Article 15.17 chargesmagistrateswith the duty'of informing such accused of his rights to appointed counsel, it is our opinion that amagistrate has the duty to to appoint anattorney for an indigent accusedperson if requested. -

We are supported in this conclusionby the requirements set forthby the United States SupremeCourt in Escobedov. Illinois, supra andMiranda v. Arizona, supra.

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Your next question concernswhether the county is authorized to pay an attorneywho was appointed at a magistrate's hearing immediately following arrest to assist an accusedwho is "toopoor to employ counsel." Article 26.05provides a schedule for payment to counsel appointed to defend a person accused of a felony or amisdemeanorpunishableby imprisonment for each day in trial court representing the accused. Also, Article 16.01provides thatan attorney appointed to represent the accused in an examining trial shall be compensated as otherwiseprovided In the Code. InAttorney General's Opinion No. C-654 (1966),this office stated that attorneys appointed tb represent an accused in an examining trialwere entitled to be compensated in accordancewzth provisions of Article 26.05. It is our opinion that the first appearance "in trial court" would be the appearance at the examining trial.

We find no authority in the laws of this state for payment of fees to an attorney appointedby a magistrate to assist an accused indigent other thanwhen appearing in court either in examining trials or in other trials and in conducting an appeal. See Article 26.05. 'i The Commissioners Court is one of limited jurisdiction and has only such powers as are conferredupon 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 (1997);Mills v. Lampasas
%% 90 Tex. 603, 40 S.W. 403 (1897);Anderson vi Wood, 137 01, 152 S,W.2d 1084 (1941);Canales v. Laughlin, 147 Tex. 169, 214 S.W.Zd 451 (1948);Starr County v. Guerra, 297 S.W.Zd 379 (Tex.Civ.App.1956, no writ); Von Rosenbergv. Lovett, 173 S.W. 508 (Tex.Civ.App.1915, err.ref. Your opinion that when a magistrate appoints counsel for an indigent at the time such accused is brought before him following arrest, the county is without authority to pay such attorney for his assistance renderedprior to appearance "in trial court."

In answer to your third question, it is our opinion that whether an accusedperson is indigent and cannot afford counsel is a fact issue for determinationby themagistrate or court requested to appoint counsel for an accused. This office does not render opinions resolving fact ,issues. (1968). A. G. OpinionM-187

You are further advi~sedthat a magistrate shall require

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an accused person to file an affidavit and receive evidence and testimony concerning the facts of his indigency and inability to afford counsel.
Article 26.04provides **in** part as follows:
"(a) Whenever the court determines at an arraignment or at any timeprior to arraignment that an accused chargedwith a felony or a misdemeanor punishableby imprisonment is too poor to **employ** counsel; the court shall oint one ormore practicing attorneys to i%ZiiThim. Inmakina the determination, the court shall require the accused to file an affidavit, andmay callwitnesses and hear any relevant testimony or other evidence." (Emphasisadded.)
While there is no provision requiring filing of an affidavit **by** the accused, other than set forth in Article 26.04, it is our opinion that a magistrate requested to appoint counsel for an accusedmay require the filing of an affidavit to such facts of indigency, and hear testimony or other evidence inmaking the determination as to whether the accused is indigent and shouldhave counsel appointed **for** him.

It is pointed out that under the holdings of Escobedo
v. Illinois, supra,~ andMiranda v. Arizona, supra, a magistrate should exercise caution in denvins appointment of counselwhen requested **by** an accused becaus; ail further proceedings against the accused **may** become a nullity should the accused laterprove that he wa6 an indigent,had requested counsel, andwas refused same.
You next askwhether an out-of-county counsel appointed to represent an indigent in a capital case is entitled to reimbursement for expenses'such as travel, **room** and board. Whether appointed counsel is entitled to reimbursement for these expenses depends upon the purpose forwhich they were incurred. Article 26.05provides that a court-appointed counsel shall be paid **"For** expenses incurred for purposes of investigationand expert testimony, notmore than $250. (Emphasisadded.)

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It is the opinion of this office, therefore, that if the purpose of the travel, lodgingand board is for investigatory purposes, appointed counsel are entitled under the provisions of Article 26.05 to reimbursement for actual expenses incurred andpaid by him including expense of expert testimony in a sum not to exceed $250.00.

On the other hand, if the purpose which necessitated the incurring of the expenses for travel, room and board for the out-of-county counsel was not investigatory in nature,but is for attending trial in court, it is the opinion of this office that said attorney is not entitled to reimbursement for these expenses.
SUMMARY /.

1. If requested, a magistrate has a duty to appoint an attorney for an indigent accused person at the time such accused is brought before him following arrest.
2. The county is not authorized to pay an attorneywho was appointedby amagistrate to assist an indigentperson, except in those cases where statutory authority exists for such payment, i.e. the examining trial, the actual trial itself, or an appeal.
3. Whether an accusedperson is indigent is a fact issue for determinationby the magistrate or court requested to appoint counsel for such an accused. A magistrate, however,may require the accusedperson to file an affidavit and may receive other evidence and testimony concerning the facts of his indigency and inability to afford counsel.
4. Counsel appointedunder theprovisions of Article 26.05, Vernon's Code of Criminal Procedure, to represen~t an indigentperson' in a capital case is not entitled to reimbursement for travel, room and board in connectionwith the trial of such accused,

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but is entitled to reimbursementfor actual expenses incurredand paid by him forpurposes of investigationand expert testimony in a sum not to exceed $250.00. trulyyours,

Preparedby Monroe Clayton and Robert E. Owen AssistantAttorneys General

APPROVED: OPINION COMMITTEE
Hawthorne Phillips, Chairman Kerns B. Taylor, Co-Chairman W. V. Geppert Lonny Zwiener. Harold Kennedy Jack Sparks

STAFF LEGALASSISTANT A. J. Carubbi, Jr.

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