Ron. John L. David, 

County Attorney 

Opinion No. M- 195 

Dallam County Courthouse Re: "Whether Vernon's Code 

Dalhart, Texas 79022 of Criminal Procedure 

authorizes appointment 

of counsel by a magistrate 

for an indigent prior to 

examining trial, how 

indigency is determined, 

and the proper fees and 

investigation expenses I to be paid by a county 

Dear Mr. David: in relation thereto. 

Your recent request 

the following questions: 

for an opinion of this office presents 

1. Whether a magistrate is authorized to appoint counsel 

for an indigent at the time such accused is brought before him 

following arrest? 

~2. Whether the county is authorized to pay a fee to such 

attorney appointed by the magistrate? 

3. What constitutes 'indigency so as to require appointment 

of counsel for an accused? 

4. Whether a court-appointed, non-resident attorney in a 

capital case is entitled to'reimbursement for expenses such as 

travel, room and board? 

Regarding your first question, Article 14.06* provides the 

following: 

*Unless otherwise noted, all Articles cited herein refer 

to Vernon's Code of Criminal Procedure. 

. . 

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., .~~ ,... 

,. . .~ ,. 
Hon. John L. David, Page 2 (M-195) 

“In each case enumerated in this Code, the 

person making the arrest shall take the person 

or have him taken without unnecessary delay before the magistrate who may have ordered the 

arrest or before some magistrate of the county 

where the arrest was made without an order. 

The magistrate shall immediately perform the 

&ties described in Article 15.17 of this Code." 

(Emphasis added). 

Article 15.17 reads as follows: 

"In each case enumerated in this Code, the 

person making the arrest shall without unnecessary 

delay take the person arrested or have him taken 

before some magistrate of the county where the 

accused was arrested. The magistrate shall inform 

in clear language the pp 

accusation against him and of any affidavits filed 

therewith, of his right to retain counsel, of 

his right to remain silent, of his right to have 

an attorney present during any interview with 

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- 

"ing trial. He"shal1 also inform the person 

a&s&d -thaf~he"is not required to make a statement and that anv statement made 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 allowed by law." (Emphasis added.) 

Magistrates may appoint counsel for an indigent at an 

examining trial by virtue of Article 16.01, which provides 

as follows: 

"When the accused has been brought before a 

magistrate for an examining trial that officer 

shall proceed to examine into the truth of the 

accusation made, allowing the accused, however, 

sufficient time to procure counsel. In a 

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Hon. John L; David, Page 3 (M-195) I 

proper case, the magistrate may appoint counsel 

to represent an accused in such examining triar 

on&;,~~e" comp.ensated,,as otherwise provided r 

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 bail, at 

which time the magistrate at the hearing shall 

determine the amount or sufficiency of bail, 

if a bailable case." (Emphasis addend.) 

Article 2.09 designates who magistrates are within the 

meaning of the Code: 

"The judges of the Supreme Court, the judges 

of the Court of Criminal Appeals, 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 investigation and interrogation centers on 

an accused, his rights tb an attorney shall be accorded to 

him upon request; and once such request is made, no further 

interrwation mav take olace in the attornev's absence. 

'.Escobe& v. Illinois, li~L.ed 2d 977, 94 S.k. 1759, 370 U.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 interrogation begins of his 

right to counsel, and, if hendigent, his right to have the 

court appoint him counsel. 

Since Article 16.01 specifically authorizes magistrates 

to appoint an attorney to represent an accused in a proper case 

at an examining trial, and Article 15.17 charges magistrates with 

the duty'of informing such accused of his rights to appointed 

counsel, it is our opinion that a magistrate has the duty to 

to appoint anattorney for an indigent accused person if 

requested. 

- 

We are supported in this conclusion by the requirements 

set forth by the United States Supreme Court in Escobedo v. 

Illinois, supra and Miranda v. Arizona, supra. 

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Hon. John L. David, Page 4 (M-195) 

Your next question concerns whether the county is 

authorized to pay an attorney who was appointed at a magistrate's 

hearing immediately following arrest to assist an accused who 

is "too poor to employ counsel." Article 26.05 provides a 

schedule for payment to counsel appointed to defend a person 

accused of a felony or a misdemeanor punishable by imprisonment 

for each day in trial court representing the accused. Also, 

Article 16.01 provides thatan attorney appointed to represent 

the accused in an examining trial shall be compensated as 

otherwise provided In the Code. In Attorney General's Opinion 

No. C-654 (1966), this office stated that attorneys appointed 

tb represent an accused in an examining trial were entitled to 

be compensated in accordance wzth 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 appointed by a magistrate to assist an 

accused indigent other than when 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 conferred upon 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 Rosenberg v. 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 rendered prior to appearance "in trial court." 

In answer to your third question, it is our opinion that 

whether an accused person is indigent and cannot afford counsel 

is a fact issue for determination by the magistrate or court 

requested to appoint counsel for an accused. This office does 

not render opinions resolving fact ,issues. 

(1968). 

A. G. Opinion M-187 

You are further advi~sed that a magistrate shall require 

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Hon. John L. David, Page 5 (M-195) 

an accused person to file an affidavit and receive evidence 

and testimony concerning the facts of his indigency and inability 

to afford counsel. 

Article 26.04 provides in part as follows: 

"(a) Whenever the court determines at an 

arraignment or at any time prior to arraignment that an accused charged with a felony or 

a misdemeanor punishable by imprisonment is 

too poor to employ counsel; the court shall 

oint one or more practicing attorneys to 

i%ZiiThim. In makina the determination, the 

court shall require the accused to file an 

affidavit, and may call witnesses and hear any 

relevant testimony or other evidence." 

(Emphasis added.) 

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 accused may require the filing of an affidavit 

to such facts of indigency, and hear testimony or other evidence 

in making the determination as to whether the accused is indigent 

and should have counsel appointed for him. 

It is pointed out that under the holdings of Escobedo 

v. Illinois, supra,~ and Miranda v. Arizona, supra, a magistrate 

should exercise caution in denvins appointment of counsel when 

requested by an accused becaus; ail further proceedings against 

the accused may become a nullity should the accused later prove 

that he wa6 an indigent, had requested counsel, and was refused 

same. 

You next ask whether 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 for which they were incurred. 

Article 26.05 provides that a court-appointed counsel shall 

be paid "For expenses incurred for purposes of investigation and 

expert testimony, not more than $250. (Emphasis added.) 

-935C 
Hon. John L. David, Page 6 (M-195) 

It is the opinion of this office, therefore, that if the 

purpose of the travel, lodging and board is for investigatory 

purposes, appointed counsel are entitled under the provisions 

of Article 26.05 to reimbursement for actual expenses incurred 

and paid 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 

attorney who was appointed by a magistrate 

to assist an indigent person, 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 accused person is indigent 

is a fact issue for determination by the 

magistrate or court requested to appoint 

counsel for such an accused. A magistrate, 

however, may require the accused person to 

file an affidavit and may receive other 

evidence and testimony concerning the facts 

of his indigency and inability to afford 

counsel. 

4. Counsel appointed under the provisions 

of Article 26.05, Vernon's Code of Criminal 

Procedure, to represen~t an indigent person' 

in a capital case is not entitled to reimbursement for travel, room and board in 

connection with the trial of such accused, 

-936- 
Hon. John L. David, Page 7 (M-195) 

but is entitled to reimbursement for 

actual expenses incurred and paid by 

him for purposes of investigation and 

expert testimony in a sum not to exceed 

$250.00. 

truly yours, 

Prepared by Monroe Clayton and 

Robert E. Owen 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns B. Taylor, Co-Chairman 

W. V. Geppert 

Lonny Zwiener. 

Harold Kennedy 

Jack Sparks 

STAFF LEGAL ASSISTANT 

A. J. Carubbi, Jr. 

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