                             JUIY 25, 1967

Hon. Joe Resweber               Opinion No. M-111
County Attorney
Harris County Courthouse        Re:    Whether Article 26.05, Code
Houston, Texas                         of Criminal Procedure, is
                                       applicable to matters be-
                                       fore Juvenile Courts con-
                                       cerning children accused
Dear Mr. Resweber:                     of fel.onyor misdemeanor.
        You have requested an opinion of .this office re-
garding the captioned question.
        Article 26.05 of the Code of Criminal Procedure pro-
vides, in part, as follows:
             "A counsel appointed to defend a person
        accused of a felony or misdemeanor punishable
        by imprisonment.shall be paid from the general
        fund of the county in which the prosecution
        was instituted according to the following
        schedule . . .' (Emphasis added)
        This office has previously stated in our recent Opinion
No. M-48:
             ,I
              . . . Article 26.05 is applicable only
        to appointments of attorneys in criminal cases
        made under authority of Article 26.04(a)."-
        (Emphasis added)
        Article 26.04(a), Code of Criminal Procedure, provides
as follows:
             "Whenever the court determines at an
        arraignment or at any time prior to arraign-
        ment that an accused charged with a felony or
        a misdemeanor punishable by imprisonment is
        too poor to employ counsel, the court shall
        appoint one or more practicing attorneys to
        defend him. In making this determination,
        the court shall require the accused to file
        an affidavit, and may call witnesses and hear
        any relevant testimony or other evidence."
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Hon. Joe Resweber, Page 2 (M-111)


        It is the opinion of this office, therefore, that Article
26.05, Code of Criminal Procedure, is not presently applicable
to matters before juvenile courts even though the c,hildstands
accused of acts which would constitute a felony or misdemeanor
punishable by imprisonment if he were of age, since the juv-
enile court proceedings are regarded as civil rather than
criminal. See Dendy v. Wilson, 179 S.W. 2d 269 (1944) and
Steed v. State, 183 S.W. 2d 458 (1955).
         Further, it is the opinion of this office that House
Bill 780, 60th Leg., to become effective August 2e, 1967, will
authorize payments for appointed counsel as specified in Ar-
ticle 26.05, c.c.P., in those hearings in the juvenile court
on the issue of waiver of juvenile court jurisdiction and
transfer of the case to the appropriate court for criminal
proceedings.
         Section'6   of Article 2338-1, V.A.C.S. will read as
follows:
              "Section 6. TRANSFER AND WAIVER OF JURIS-
         DICTION. (a) When a child under the jurisdiction
         of a court moves from one county to another the
         court may transfer the case to the court in the
         county of the child's residence if the transfer
         is in the child's best interest. The transferring
         court shall forward transcripts of records in the
         case to the judge of the receiving court, who shall
         file them in the office of his clerk.
               "(b) If a child is charged with the violation
         of a penal law of the grade of felony and was fif-
         teen years of age or older at the time of the com-
         mission of the alleged offense, the juvenile court
         may, within a reasonable time after the alleged
         offense, waive jurisdiction by following the re-
          uirements set out in Subsections (c) through
         ? j) of this section, and transfer the child to
         the appropriate district court or criminal court
         for criminal proceedings.
              "(c) The juvenile court shall conduct an
         Anformal hearing under Section 13 of this Act on
         the issue ofwafver of--jurisdicm.
                "(d) Prior to the hearing, the juvenile
           court shall order and obtain a complete dia@;-
           nostic study social evaluation, and full inves-
           tigation of the child, his circumstances, and
           the circumstances of the alleged offense.
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Hon. Joe Resweber, Page 3 (M-111)




         We are not unmindful of the recent holding in the Appli-
 cation of Gault, E7 S.Ct. 1428 (1967) guaranteeing a juvenile
 protection of certain basic constitutional rights including
 appointment of counsel; however, the Commissioner's Cour~t
 is a court 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 impli-
 cation. Section 18, Article V, Constitution of Texas; Article
 2351, Vernon's Civil Statutes; Bland v. Orr, 90 Tex. 492,
 39 S.W. 558 1897 ; Mills v. Lampasas County, 90 Tex. 603,
 40 S.W. 402 I1897 1* Anderson v. Wood, 137 Tex. 201, I.52S.W.2d
 1084 (19415; Canaies v. Laughlin 147 Tex. 169, 214 S.W. 2d
 451 (19@ ; Starr County v. Gueria 297 S.W. 2d 379 (Tex.Civ.
 APP. 1956 j; Van Rosenberg v. Lovet;, 173 S.W. 508 (Civ. App.
'1915, error ref.).
        We find no authority in the laws of this State which
authorizes the payment of attorneys appointed by the court to
represent juveniles in the juvenile court except as herein-
above noted.
                       SUMMARY
             Article 26.05, C.C.P., is not now appli-
        cable to matters before juvenile courts; however,
        on August 28, 1967, when the provisions of House
        Bill 780, 60th Leg., which amends Section 6,
        Article 2338-1, V.C.S., become effective, an
        attorney who is appointed to represent a juvenile
        in the juvenile court at a hearing on the issue
        of waiver of jurisdiction will be entitled to
        compensation in the amount and from the same
        source as specified in Article 26.05, C.C.P.




                                           Gdneral of Texas
.   .



        Hon. Jot Resweber, PaCe Ik (M-111)



        Prepared by Robert Owen
        Assistant Attorney General
        APPROVED:
        OPINION COMMITTZE
        Hawthorne Phillips, Chairman
        Kerns B. Teylor, Co-Chairman
        Jo Betsy Lewallen
        Howard M. Fender
        Robert Darden
        STAFF LEGAL ASSISTANT
        A. J. Carubbi, Jr.




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