I    -




                        QRNEY        GENE
                      cm     E,XAS




Honorable Carol S. Vance     Opinion No. C-717
District Attorney
Harris County                Re:     Waiver and termination of
Houston, Texas                       right to an examining
                                     trial.
Dear Mr. Vance:
       In an opinion request to this office you pose the
following questions:
            "1. After warning of Defendant in
         compliance with Article 15.17, C.C,P.,
         does Defendant's failure to request an
         examining trial prior to his Indictment
         waive his right thereto?
            "2. Does Defendant's indictment,
         after examining trial has been set and
         before same has been held, terminate
         his right to examining trial?"
       Article 15.17, Vernon's Code of Criminal Procedure,
provides, in part, as follows:
          I,     The magistrate shall inform
       the pe&n   arrested       of his right
       to have an examlning'trial."
       Article 16.01, Vernon's Code of Criminal Procedure,
which provides for examining trials, reads as follows:
            "When the accused has been brought
         before a magistrate for an examining
         trial that officer shall proceed to ex-
         amine into the truth of the accusation
         made, allowing the accused, however,
         sufficient time to procure counsel, In
         a proper case, the magistrate may ap-
         point counsel to represent an accused In
         such examining trial only, to be compen-
         sated as otherwise provided in this Code.
         The accused In any felony case shall have
         the right to an examining trial before
                            -3458-
                                                      -    .




Honorable Carol S. Vance, Page 2 (C-717)


       indictment In the county having juris-
       diction of the offense, whether he be in
       custody or on ba,il,at which time the
       magistrate at the hearing shall deter-
       mine the amount or sufficiency of bail,
       if a baila~blecase."
       The above quoted Article clearly provides that a
defendant in a felony case shall have the right to an ex-
amining trial before being Indicted. However, Article 1.14,
Vernon's Code of Crfminal Procedure, provides, In part, as
follows:
          "The defendant in a criminal prose-
       cution for any offense may waive any
       rights secured him by law except the
       right of trial by jury in a capital
       felony case in which the State has made
       known in open court in writing at least
       15 days prior to trial that It will seek
       the death penalty. . . ."
       In view of Article 1.14, It 1s the opinion of this
office that a defendant Maryaffirmatively waive his right to
an examining trial. Moreover, after a defendant has been ln-
formed of hfs right to have an examining trial in compliance
with Article 15.17, his failure to request an examining trial,
prfor to his indictment would constitute a waiver of his
right thereto; or to sta~tethe proposition another way, the
failure of the defendant to request a,nexa,miningtrial prior
to his indictment, terminates the right to such a hearing.
       Article 16.01 would appear to make It mandatory that
the examining trial be held before a valid indictment could
be returned against the defendant. Prior to the enactment
of the new Code of Criminal Procedure, there was no require-
ment that an accused person in a felony case should have the
right to an examining trial before indictment could be re-
turned. Singleton v, State, 546 S,W.2d 328 (Tex.Crim. 1961,
cert.den. 82 S.Ct. Ilo), It is the opinion of this office
that even in view of the new Code of Criminal Procedure, this
rule is still applicable and the return of an indictment can
still cut off an examining trial already set. This result
is in conformity with the Federal rules. Rule 5(b), Federal
Rules of Civil Procedure, provides, in part, as follows:~
         "(b) Statement by the Commissioner.
      The Commissioner shall inform the de-
                          -3459-
   .   -




 Honorable Carol S. Vance, Page 3 (C-717)


           fendant of the complaint against him, of
           his right to retain counsel and of his
           right,,tohave a preliminary examina.tlon.
           . . .
        It will be noted that Rule 5(b) of the Federal Rules
 1s very similar to Article 16.01. Under Federal Rule 5(b),
 indictment by the grand jury without a preliminary tria.1is
 not a violation of due process. United States v. Smith
 343 F.2d 847, 850 (6th Mr. 1965, cert.den. Ub S Ct    55)
 This right Is waived by an accused when he plead; to an in-
 dictment subsequently returned against him. United States
 ex rel. Lawson v. Skeen, 145 F.Supp. 776 (N.D. W.Va. 195br
 Even the fact that a waiver of preliminary hearing resulted
 from a misunderstanding appears to have been cured by the
 accused's subseq~uentIndictment b the grand, ury.
 v. United States, 337 F.2d 891, (8th Cir. 196i , certw
     . .       .
           In the Vincent case, the Court   stated at pa.ge896:
              "The purpose of a preliminary hearing
           Is to determine whether or not there is
           probable cause to believe that the defen-
           dant has committed an offense. . . . The
           grand jury by the return of the indict-
           ment resolved this ques,tionand thereby
           eliminated the necessity for a.preliminary
           hearing before the U. S. Commissioner.
           (Cases Cited)."
         In view of the similarity of the Federal rule with
  that of the new Code with regard to rights to examining
  trials, we see no reason to depart from the reasoning of
  the Federal cases set out above.  We are of the opinion,
  therefore, that if a defendant is indicted after an examln-
  ing trial has been set and before same has been held, his
1 right to said examining trial is terminated.
        We wish to point out that Article 16.01 provides for
 an examining trial even though the defendant may already be
 on ball. Additionally, the accused, under the new Code of
 Criminal Procedure, has full discovery rights as to deposi-
 tions under Article 39.02, Vernon's Code of Criminal Proce-
 dure, without recourse to a,preliminary hearing, and,there-
 fore, the accused is not deprived of the right to discovery
 by not being afforded an examining trial.

                               -3460-
                                                           -   .




Honorable Carol S. Vance, Page 4 (C-717)


                          SUMMARY
               A defendant's failure to request an
            examining trial prior to his Indictment,
            after being informed of such right In
            accordance with Article 15.17, V.C.C.P.,
            conqtltutes a waiver of his right there-
            to. A defendant's indictment, after
            examining trial has been set and before
            same has been held, terminates his right
            to said examining.trlal,
                                       Yours very truly,
                                       WAGGONER CARR
                                       Attorney General of Texas




ABQaJR/dt
APPROVED
OPINION COMMITPEE:
w. 0. Shultz, Chairman        ~
Bob Flowers                   \ .;
Lonny Zwiener                   L
Robert E. Owen
Phlllip Crawford
APPROVED FOR THE AT&NEY     GENliRAL
By T. B. Wright ,I
