-.     S




                                 The Attorney                General         of Texas
                                                            Hay 2. 1984
JIM MAnOX
Attorney General


Supreme Cowl Building           Mr. Robert 0. Viterna~~                         Opinion No.   J’M-151
P. 0. Box12548                  Exizcutive Director
AUK. TX. 7871s 254a             Texas Commission.on Jail         Standards      Re: Whether a county jail   must
5121475-2501                    P. 0. Box 1298%                                 accept state statute  violators
Telex 91003711387
                                Auetin, Texas ::78711:                          delivered  by municipal   police
Telesopler 51214750268
                                                                                officers, and related questions

714 Jackaon.Sulle 700           Dear Mr. Viterna:       :
Dall*s. TX. 75202.4505
214f7428944
                                       You infozw+%a ,that Bexar County Jail provides housing for        persons
                                arrested ‘by city- police     officers   for violating   a state        statute.
 4824 Alberta Ave., sldte la0   Bowever, the county charges the city making the arrest       $50 a       day for
 El Paso. TX. 7B905-2793        each prisoner     until he is taken before    a magistrate.    You       ask the
,gl$lm34a4                      folltiing   questions about this~practice:

1001 Texas. Sulle 700                          (1)  Must the Bexar County Jail           accept  all
“ouI,~.  TX. 77002-3111                    states statute    violators    delivered    by municipal
7132295886                                 police   officers    (see   Attorney     General  Opinion
                                           MU-52 regarding municipal offenders)?
SO5 Broadway, Suite 312
Lubbock. TX. 7B401-3478
                                               (2)   Must municipalities       be required to pay for
506i747.5235                               each..indivi+al   until: that       person [appears before
                                           a :6mg$sirate].? Or, *~ :

 43OB N. Tenth. Suite B
                                             . (3) -Must    the  vkstor           [appear  before   a
 McAllsn. TX. 7S5Ol.l~W
 512mS24547                                magietrate]   prior to delivery        to the Bexar County
                                           Jail?.

 2co Main Plaza. SUIIO 400                     (4) And, must a district attorney’s   represent-
 San Antonio. TX. 782052787
                                           ative be present at the magistrates  hearing?
 51212254191

                                City pollce?officers           are peace officers,   authorized to make arrests
 An Equal Oppwtunllyf           under. _the : !&de of       Criminal Procedure.    Code Grim. Proc. arts.  2.12,
 Affirmative Action Empioys~    2.13.

                                       When~..u city police     officer.  or other person authorized     by law
                                ‘erre,sts-~xanyonu~ he must “without unnecessary       delay take the person,
                                 arreuted~:ot,have   him taken before some magistrate     of the county” where
                                 the arrest    took place.     Code Grim. Proc. art.    15.17, see also arts.
                                 14.06, 15.16.     Mayors, recorders,     and judges of municipal    courts are
                                 among+h&offlcers        designated    as magistrates by article   2.09 of the
                                 code.     The mag~istrate performs the duties set out in article         15.17,
Hr. Robert 0. Viterna     - Page 2     (JM-151)




including    warning   the arrestee       of his    constitutfonal     rights    and
admitting   him to bail If alloved      by 1s~.

      Article    2.17 of the Code of Crinlnal        Procedure, pertaining      toga
sheriff’s     duty, requires     him to commit to jail         the offenders        he
apprehends. subject to his duty to take them before a magistratw;::,The
sheriff   is also required to place in jail         prisoners who are connitted
by warrant from a magistrate         or court.     Code Grim. Prof.    artti.2.18.
See also V.T.C.S.      art.   5116(a).    The sheriff     may take custody>-of a
prisoner    lawfully  arrested by a city police officer,         thereby ,becom%ng
responsible     for the prisoner.      Code Crlm. Proc. art. 45.43; ~+KXl.C:S.
art.    5116.     Be is     not,   however.    required    by statute     t&-<take
responsibility     for a person arrested by city police uotil,the         prisoner
Is taken before a magistrate         and committed to the county jail:.           See
Attorney General Opinion E-169 (1973).                                    .:~,.I’ -
                                                                      ui
       Attorney General Opinion IN-52 (1979) determioed that a sheriff
had no duty to confine        in the county jail    pers~ons arrest&d      for
violating    only a municipal ordinance. This opinion relied in p&t on
article    45.05 of the code, which makes the city chief         of.:..p.plice
responsible    for persons convicted of an offense    in municipal c’ourt.
It did not consider when the sheriff’s      duty arose to incarcerate         a
person arrested by city police for violating    a state statute.                         ?


       We answer your first    and third questions     as follows:    The Bexar
County Jail is required to accept state statute violators          only after a
magistrate   or court has committed them to the jail.
                                                                      . ;,:,;.t-,>:,
       Your second question concerns whether the cftfes may be required
to pay for      each prisoner’s      keep until     he is brought     before         a
magistrate.    The county could collect       this payment from the city if
the two governmental       bodies    entered   into   an Interlocal      contract
agreeing to this term.      V.T.C.S.   art. 4413(32c);    see Attorney General
Opinions MW-52 (1979);      O-7353 (1946).     However, itappears       from the
correspondence submitted with your request letter            that the city and
county have not entered Into such an agreement.          We are unable to find
any provision    of law authorizing     the county to impose this charge ou
cities   absent an appropriate    contract.

     You finally  ask whether a district   attorney’s representative must
be present at the magistrate’s    hearing.    Article 2.09 of the Code of
Criminal Procedure lists  the officers   who are magistrates:

                Each of the following   officers    is a magistrate
            within the meaning of this Code:        The justices  of
            the Supreme Court,     the judges     of the Court of
            Criminal Appeals,    the justices    of the courts of
            Appeals,   the judges   of the District      Court, the                      2..
            county judges,   the judges of the county courts at
            law, judges of the county criminal          courts,  the
            justices   of the peace,   the mayors and recorders



                                      p. 658
Mr. Robert 0. Vitema            - Page,3    (JM-151)




     2 “, .   ,   ,and the      judges    of  the   municipal       courts      of
                   incorporated    cities  or towns.

We :find     no provision     of law requiring       a magistrate     to await the
arrival    of the district     attorney’s   representative    before he gives the
warnings required by article         15.17.
     /.‘?I
     - Article     2.01 of the code requires          the district      attorney    to
represent the state in examining trials          in his district,     when notified
thatir,oae will      take place and when other duties do not prevent his
parti&&pation        in  it.     See,   e. .,   art.    16.06    (examining     trial
procedure).’      A magistrate   conducts examining trials.        Code Criw. Ptoc.
art.:ll6.01.,      Thus, the legislature       has expressly      stated    when the
district     attorney must attend a proceeding before a magistrate.                The
arrestee’s      appearance before a magistrate        for statutory     warning8 is
not such a proceeding.
       :
             In McGee v. Estelle.        625 P.2d 1206 (5th Cir. 1980) cert. denied.
449 U.S. 1089 (1981) the relator                   contended that his appearance before
a magistrate            triggered    the adversary process so that he-was thereafter
entitled            to representation         by counsel.         The court       refuted    this
contention,            pointing     out that appearance           before    a magistrate      for
statutory warnings does not Involve counsel for the state but instead
is for the purpose of complying with the requirements of Miranda v.
Arizona. 304 U.S. 436 (1966).                   See also Wyatt v. State, 566 S.W.2d 597
(Tex.           Grim. App. 1978).          The district       attorney’s     presence     is not
required           at the magistrate’s        proceeding pursuant to article            15.17 of
the code.
  :f,.,g$-r ‘>
    ,;$,).,:.                                SUMMARY
     ‘K?     1 .>
                        The Bexar County Jail is not required to accept
                    state    statute     violators     arrested      by municipal
                    police    officers    until    the arrestee       has appeared
                   ~before a magistrate          for   statutory     warnings     and
                    commitment to the county sheriff’s             custody.    If it
                    does accept such arrestees.             the county may not
                    charge the city a fee for housing them prior                    to
                    commitment unless          the    city     and    county     have
                    contracted       for     that     purpose.        A    district
     3ti.:...i      attorney’s     representative      need not be present at
                    the magistrates       hearing pursuant to article          15.17
                    of the Code of Criminal Procedure.




                                                                                        .
                                                      JIM     MATTOX
                                                      Attorney General        of Texas



                                             p. 659
Mr. Robert 0. Vitema      - Page 4     (m-151)




TOnGREEN
First Assistant   Attorney   General

DAVID R. RICRARDS
Executive Assistant    Attorney   General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin.   Chairman
Jon Bible
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton




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