                OFFlCE   OF THE ATTORNEY     GENERAL   OF TEXAS
                                    AUSTIN


QCIIALD
      c. MANN
 *-.umwA



         Eonorahle Murphy a01 e
         county Auditor
        Liberty County
        Liberty, texmi
         Dear Bir(




                  Te roknorledge ri                receipt of pour let-
         ter or May                              est Sor m3 opinion 88
         eontrlned Ln pour                         ccordance rith your
         letter of May                             ur request and as
         originally
                                           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 nrsanlningtrial
                is the Justice entitled to a fee' the County
                Attorney,not present on the triai 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 Jus-
     tice tifthe 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 rrhyone ease.
          w...*

          lDietr ioaudt 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.
          sIbhefees mentioned in this Article shall be-
     Gone 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 ac-
    count 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 examin-
    ing tria$ though more .thanOne defendant is joined
    in the oomplaint, or a severance is had. Then de-
    fendants ,areproceeded 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 ArticrlelC#) provides that when the defen-
dants 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 reoog-
    nitlon to the defendant8 ahhargedin more than one came, to
    each Crimeaor 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 of-
    fense 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 addi-
    tional 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 examin-
    ing trial under the provisions of the statutes set forth here-
    in. 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, lS3SBIpage 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



                                               (APPROVED
        APPROYJRII                             (Opinion Committee
                                               (By EQB, Chainnau.
        (Signed) Qerald 40 Mann
        ATTOItHEXGMERAL OF TEXAS
