    Honorable Joe Resweber        Opinion NO. (c-654)
    Cpunty Attorney
    Harris County                Re: Appointment and Compen-
    Houston, Texas                 sation of attorneys to re-
                                   present ,accusedpersons in
    Dear Mr. Resweber:             examining trials.
         In a recent.opinion request of this office you pose
    the following questions:
            “1.   Can a justice of the peace appoint an
                  attorney for accused in examining trials
                  held by him?
           “2.    Is an arraignment the same~as an examining
                  trial, as used in Article 16.01, C.C.P.,
                  and Article 26.04, c.c.P.?

            “3.   By what amount is an attorney to be compen-
                  sated for representing an accused in an
                  examining trial?
           “4.    Where the same attorney represents two or
/
    i             more persons in one or more courts on the
                  same day and the fees for appointed counsel
                  are included in the costs of court under
                  Article 26.05,E.c.~.,  to whom are such
                  costs to be taxed?

            “5.   Does the attorney appointed for an examin-
                  ing trial have to represent the accused
                  in a subsequent trial in County or District
                  Court for the same fee, or does the,Judge
                  of the County or District Cour,thave the
                  duty to appoint the same or a different
                  attorney at additional fees set by Article
                  26.05,Jc.c.p.~ to be paid upon the trial
                  of the case?"
         For convenience we will number the paragraphs of this
    opinion so as to correspond with the numbers you have given
    the questions.


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     Honorable Joe Resweber, page 2         (c-654)



          1. A justice of the peace may appoint counsel to
     represent an accused in an examining trial held by him
     only. Article 16.01,  Code of Criminal Procedure, 1966,
     concerning examining trials, provides as follows:

             "pen the accused has beenbroughtbefore a
              magistrate for an examining trial that
              officer shall proceed to examine Into the
              truth ofttie accusation made, allowing the
              accused, however, sufficient time to pro-
              cure counsel. In a proper case, the magis-
              trate may appoint counsel to represent an
              accused in such examining trial only, to
              be compensated as otherwise provided in
              this code. The accused in any felony case
              shall have the right to an examining trial
              before indictment in the county having
              jurisdiction of the offense, whether he be
              in custody or on ball, at which time the
              magistrate at the hearing shall determine
              the amount or sufficiency of ball if a
              bailable case."
          Prom the above quoted article it seems clear that
     a'magistrate has the authority to appoint counsel to re-
     present an accused in an examining trial only. Article
     2,09, Code of Criminal Procedure, 1966, among other things,
     designates justices of the peace as magistrates. In view
     of the foregoing, it is the opinion of this office that
     a justice of the peace may appoint an attorney for an
     accused fin an examining trial held by said justice of
     the peace.
           2.   Your second question is answered in the negative
     since it is the opinion of this office    that an arraignment
     as described in Article 26.04,    Code of Criminal Procedure,
     1966,   Is not the same as an examining trial as described
     in Article 16.01..    In the first place; it should be noted
     that Chapter 16 of the Code, and the numerous provisions
     thereof, is almost entirely concerned with the setting out
     of various rules of procedure which apply to examining trials,
     such as the taking of testimony therein. On the other hand,
     Chapter 26, of the Code.1966, dealing with arraignment, has
     no similar procedure set forth, and in fact Article 26.02,
     thereof states that the purpose of an arraignment is simply
     for the fixing of the identity of the defendant and hear-
     ing his plea. Apparently the only other thing to be done
     at time of arraignment would be the appointment of counsel
     if necessary. We therefore observe that there is a vast

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    Honorable Joe Restieber,page 3         (C-6?‘+)




    di.stinctionmade by the Legislature with regard to arraign-
    ment and examining trials, and it seems clear that that
    body intended there be a distinction between the two. In
    addition to this, a distinction between an arraignment and
    an examlninn trial was aointed out in Attornev General's
    Opinion No.-WW-1320 and-Brown v. State, 118 SW 139 (Tex.
    Grim. 1909).   .

          3. Article 16.01.provides that an attorney appointed
    .to represent the accused in an examining trial shall be
     "compensated as otherwise provided in this code". The
    only provisions providing for compensation of appointed
    counsel are contained in Article 26.05, Code of Criminal
    Procedure, 1966. However, Article 26.05 would on its
    face seem to be applicable only to a situation where the
    appointed counsel had been in "trial court". All of the
    provisions of 26.05, setting out fees to be paid appointed
    counsel in instances other thanon appeal, speak in terms
    of days spent in trial court. It seems clear that a magis-
    trate holding an examining trial would not be a "trial
    court" as that term is used in the statute, and the
    language of Article  26.05 would at .firstreading indicate
    that an attorney appointed to represent an accused in an
    examining trial Would not be compensated for his efforts.
    Itsis our opinion, however, that the Legislature intended
    that an attorney appointed under the provisions of Article
    16.01, be con ensated in accordance with the provisions
    of Article 2%.05. Article 16.0'1. clearly contemplates that
    such an attorney would be compensated as provided in the
    code. Article 26.05 contains the only provisions related
    to compensation of appointed attorneys, and it is the
    opinion of this office that an attorney appointed under
    the provisions of Article 16.01, would be eligible for com-
    'pensation in accordance with the terms of Article 26.05.
          ~4. You next inquire if the same attorney represents
    two ormore persons in one or more courts on the same day
    and the fees for appointed counsel are included in the costs
    of court under Article 26.05, to whom are such court costs
                  . We are of the opinion that Section 3 of
    to:,'b&l~.taxed.
    Article  26.05 is unconstitutional, and therefore.do not
    address ourselves to your specific'question. Said Section
    3 provides as ,follows:
               "All payments made under the pro-
                visions of this Article may be in-
                cluded as costs of court."
          Although this provision is of course discretionary
    ~with the court, it seems clear that in many instances, in

L
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     Honorable Joe Resweber, page 4         (c-654)


     both felonies and misdemeanors, indigent persons for whom
     attorneys have been,appointed would be charged a sum of
     money for their decision to excercise their constitutional
     right to counsel.
           In-Gideon vs. Wainwright, 372 U.S. 335, (1963), an
     unanimous Supreme Court held that the Sixth Amendmentls
     provision that in all criminal prosecutions the accused
     shall enjoy the right to have the assistance of counsel for
     his defense was made obligatory upon the states by the
     Fourteenth Amendment. In a concurring opinion, Mr. Justioe
     Harlan pointed out that it was not necessary to decide in
     Gideon whether the ,decision applied to all criminal cases
     as ODDOSed to onlv those which carried the Dossibilitv of
     ;h&;;;ial      r&on    sentence. However, in-Harv;y vsi
     Mlssissi   i, 3 ~0 F. 2a 263 (lg63), the Court of ppea s for
                Circuit held that the failure to advise a person
     accused of a misdemeanor, punishable by possible confinement,
     of his rightto the assistance of counsel, invalidated his
     guilty plea .and rendered his conviction and subsequent in-
     carceration constitutionally improper. We think it clear,
     therefore, that in all felonies and at least in all misde-
     meanors punishable by possible confinement-in jail, the
     accused has the right to the assistance of counsel. Addi-
     tionally, Article 26.05, Section 1, provides for the appdnt-
     ment of counsel in all felonies and misdemeanors punishable
     by imprisonment. We are thus confronted with the situation
     that if Section 3 of Article 26.05 is allowed to stard, there
     will be many instances in Texas when an indigent defendant
     who excercises his right to have the assistance of counsel
     and has one appointed for him by the court will be charged
     a sum of money simply because he excercises his right.
          In Griffin vs. Illinois, 351 U.S. 12 (1956), the United
     States Supreme Court held that an indigent defendant was
     entitled to have free of costs an appellate record in order
     that he might perfect an appeal of his conviction. Al-.
     though we realize that Griffin is not directly in point here,
     it is analogous to our situation. Then in Griffin vs. Cali-
     fornia 380 U.S. 609 (1965), the United States Supreme Court
     li??m-i
          t at adverse comment by a prosecutor or a trial judge
     upon a defendant's failure to testify in a State criminal
     trial violates the Federal privilege against compulsory
     self incrimination, because such comment "cuts down on the
     privilege by making Its assertion costly.(' We believe the
     reasoning in Griffin to be applicable here since to assess
     a charge against a defendant in the evefithe excercises hi.s
     constitutional right to the assistance of counsel cuts down
     on this privilege by making its assertion costly. We are

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     Ebnorable Joe Resweber, page 5         (C-654)


     of the opinion, therefore, that Section 3 of Article 26.05
     js unconstitutional.

           5. An attorney appointed for an examining trial is
     sppointed to represent the accused in the examining trial
     only. Article 16.01, quoted earlier in this opinion, states,
     &Tong other thtngs, that the magistrate may appoint counsel
     to represent an accused in an examining trial only. We inter-
     pret this provision to mean tnat a magistrate, before whom
     a person is brought for an examining trial, has the authority
     to appoint counsel for the purpose of representing the accused
     only in the examining trial. Therefore, if subsequent appoint-
     ucnt of counsel is deemed necessary by the trial court, said
     court has the duty to appoint the same or a different attorney
     to represent the accused after the examining trial, and
     the additional fees as prescribed in Article 26.05, should
     be. paid.

                 :         SUMMARY
                           -------

            A justice of the peace m&y appoint an attorney
            for an accused in an examining trial.held by
            said justice of the peace. An arraignment is
            not the same as an examining trial. An attorney
            appointed to represent an accused in an examin-
            ing trial is to be compensated In accordance with
            the provisions of Article 26.05, C.C.P., 1966.
            Section 3 of Article 26.05 is unconstitutional.
            An attorney appointed by a magistrate for the
            purpose of representing an accused in an ex-
            amining trial is appointed for that purpose
            only, and if appointment.ofcounsel is necessary
            for the accused subsequent to the examining
            trial, the appropriate trial court has the duty
            to appoint the same or a different attorney to
            represent the accused.
CJ
                                 Yours very truly,
t
                                 WAGGONER CARR
                                 Attorney General of Texas
