          THEAITTORNEPGENERAL
                      OP   TEXAS




                       April 24, 1962

Honorable Burton S. Burks, Sr,     Opinion No. WW-a/3>0
County Attorney
Hood County                        Re: Whether a magistrate is
Granbury, Texas                        authorized under the law
                                       to appoint counsel to
                                       represent an indigent de-
                                       fendant charged,witha
                                       felony, in an examining
                                       court, and related
Dear Mr. Burks:                        questions.
      Your request for an opinion presents these three
questions:
         1. Is a magistrate, such as a Justice
       of the Peace, authorizedunder the law to
       appoint counsel to represent an indigent
       defendant, charged with a non-capital
       felony, in an examining court?
         2.  Is a magistrate, such as a Justice
       of the Peace, authorizedunder the law to
       appoint counsel to represent an indigent
       defendant,chargedwith a capital felony,
       in an examining court?
         30 Is a CommissionersCourt authorized
       to pay such court-appointedattorney for his
       services rendered in an examining court?
       Article 35, V.C.C.P,, provides as follows:
         When the magistrate sits for the pur-
       pose of inquiring into a criminal accusa-
       tion against any person, this is called an
       'examiningcourt,""
       Article 245# V.C.C.P,, provides as follows:
         When an accused has been brought before
       a magistrate, that officer shall proceed to
       examine into the truth of the accusation
Honorable Burton S. Burks, Sr. Page 2   Opinion No, WW-~~3~"


      made, allowing the accused, however
      sufficienttime to nroeure counsel."
      (Emphasisadded)
       Article 250, V,C.C.P., provides, among other things,
that if no counsel appears, either for the State or for the
defendant, the magistrate may examine the witnesses; and
the accused has the same right.
       The purpose of a preliminary examinationis three-
fold: (1) To inquire concerningthe commission of a crime
and the connection of the accused with ft, in order that
he may be informed of the nature and the character of the
crime charged against hfm, and, if there is probable cause
for believing him guilty, that the State may take the neces-
sary steps to bring hfm to trial, (2) To preserve the evi-
dence and keep the witnesses within the control of the State.
(31,To determine the amount of bail if the offense is bail-
    D
       The Constitutionof the United States does not require
that the accused be furnished counsel at a preliminaryhear-
ing fn the prosecutionfor efther a Federal or State offense;
State of Utah v. Sullivan, 227 Fed.2d 511 (C.C.A. lOth, 1955
cert. den., 350 U,S. 973f Hawk v. Olson, 326 U.S. 271 (19453.
The right to be furnished'counselunder the provisions of the
Federal Constitutiondoes not accrue until an indictmentis
returned or an informationor-other lfke charge 5s lodged
against the accused, State of Utah v0 Sullivan, suvra. Hawk
v. Olson, supra, In the abaenee of constitutionalor statu-
tory provisions,there is no requirementthat counsel must
be appointed for the accused at a reliminaryexamination.
22 C.J.S, Grim. Law, !8339(c), p0 877.
      Article 494s V.C.C,P,, before amendment, read a8
follows:
         When the accused is brought into court
       for the purpose of being arraigned, if it
       appear that he has no counsel and is too
       poor to employ counsel, the court shall
       appofit one or more practicing attorneys
       to defend hfm, The counsel so appointed
       shall ha e at least one day to prepare for
                Emphasis added)
       trial." 'i
       Under this Article it was mandatory for a court,
upon the arraignment of an indigent defendant accused of a
d-   .




         Honorable Burton S, Burks, Sr. Page 3   Opinion No. WW-m   /3&o


         capital offense, to appoint counsel. Holton v. State, 158
         SW2d 772 (Tex.Crim.1942, cert. den. 316 U.S.xExuarte
         Bushnell, 353 SW2d 438 (Tex,Crim.1962).  This Article, how-
         ever, did not apply to non-capitalfelonies. C~ummingsv.
         State, 282 SW 227 (Tex.Crim.1926). Even in capital cases,
         the imuerativedutv of a court to appoint counsel arose only
         on a&isal that accused was too ~0%   to emoloy counsel, and
         only-ipon the arraignmentof the accused. & parte Mays,
         212 SW2d 164 (Tex,Crim,19481, Ex parte Grayson, 217 SW2d
         1007 (Tex.Cri& 1949).
               Article 494, V.C.C.P., was amended in 1959 by the 56th
         Legislatureto read as follows:
                 "Whenever it is made known to the court
               at an arraignmentor any other time that
               an accused charged with a felony is too
               poor to employ counsel, the court shall
               appoint one or more practicing attorneys
               to defend hipn.
                 "The counsel so appointed shall have ten
               days to prepare for trial unless such time
               be waived in writing by said attorneys and
               the accused." (Emphasisadded)
                Section 2 of the amending act of Article 494 provided
         as follows:
                  "The fact that Article 494 only applies
                to capital casea and does not apply to
                ordinary felonies creates an emergency ....'
                Article 494a, V.C.C.P., provides for the compensation
         of counsel appointed to defend an indigent defendant, and
         was amended to increase the compensationin 1959 by the 56th
         Legislature, As amended, Article 494a, V.C.C.P., reads in
         part as follows:
                   "Section 1. Whenever the court shall
                appoint one or more counsel to defend any
                person or persons pursuant to law in any
                felony case in this state, each counsel
                may, at the discretion of the trial judge,
                be paid a fee in the sum of $25.00 per day
                for each day such appointed attorney &
                actually in trial court representingthe
                  ersou he has been appointed to represent...."
                PEmphasis  added)
Bonorable Burton S0 Burks, SP. Page 4   Opinion NO! WW-*     /JA0


        "Section 2. No such allowance shall be
      made unless an affidavit is filed with the
      clerk of the court by the defendant showing
      that he is wholly destitute of means to pro-
      vide counsel, and that he has not been z-
      leased on bail bond." (Emphasisadded)
       By the language of the above quoted section, the
appointed counsel can only be paid for the days he is ac-
tually in trial court0 The magistrate,under Article 245,
is sitting as an "examiningcourtl'and not as a trial
court0 Art. 35 V,C.C,P.; Brown v0 State, 118 SW 139
(Tex.Crim.19091. The accused fs not required to defend
himself upon the merits of the case and the magistrate is
not empowered to pass final judgment upon the guilt or
innocence of the accused. The magistrate has only the
authority to make an order committingthe defendant to
the jail of the proper county, discharginghim, or admitting
him to bail.
       It is our opinion that the language of Article 494a,
49413,and particularlySection 2 of the amending act of Art.
494, does not manifest an intent by the Legislatureto extend
the provision of these Articles to an examining court.
       It is our opinion, therefore, that a magistrate is
not authorized under Article 494 to appoint counsel to re-
present a defendant charged with either a capital or non-
capital felony in an examining court. Your questions 1, 2,
and 3 arw therefore answered in the negative,

                      SUMMARY
        A magistrate sitting as an examining
      court is not authorized under Article 494,
      V,C.C.P*, to appoint counsel to represent
      an indigent defendant charged with a capital
      or non-capital felony, and the CommissiDners
      Court is not authorized to pay a court-
      appointed attorney for services rendered at
      en examining trial+
                                Very truly'yours,
                                WILL WILSON
                                Attorney General of Texas
MPS:bjh
--   .




         Honorable Burton S. Burks, Sr. Page 5   Opinion No. WW-EEEh/320




                                   By~f~f~~
                                      Marvin F. Sentell
                                      Assistant Attorney General
         MFS:bjh
         APPROVED,:
         OPINION COMMITTEE:
         W. V. Geppwrt, Chairman
         John Reeves
         Arthur Sandlin
         Joseph Trimble
         Elmer McVwy

         APPROVED FOR THE ATTORNEP GENERAL
         BY: Houghton Brownlee, Jr.
