     Ron. John L. David,                             Opinion No. M- 195
     County Attorney
     Dallam County Courthouse                        Re: "Whether Vernon's Code
     Dalhart, Texas 79022                                 of Criminal Procedure
                                                          authorizes appointment
                                                          of counsel by a magistrate
                                                          for an indigent prior to
                                                          examining trial, how
                                                          indigency is determined,
                                                          and the proper fees and
                                        I                 investigation expenses
                                                          to be paid by a county
     Dear Mr. David:                                      in relation thereto.
            Your recent request for an opinion of this office presents
     the following questions:
            1. Whether  a magistrate is authorized to appoint counsel
     for an indigent at the time such accused is brought before him
     following arrest?
                ~2.      Whether the county is authorized to pay a fee to such
     attorney          appointed by the magistrate?
               3.  What constitutes 'indigency so as to require appointment
     of    counsel for an accused?
             4. Whether a court-appointed, non-resident attorney in a
     capital case is entitled to'reimbursement for expenses such as
     travel,  room and board?

            Regarding your first question, Article 14.06* provides the
     following:



            *Unless otherwise noted, all Articles cited herein refer
     to Vernon's Code of Criminal Procedure.


                                       ..
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.,   .~~        ,...         ,.         .           .~   ,.
Hon.   John   L. David, Page 2 (M-195)


             “In each case enumerated in this Code, the
         person making the arrest shall take the person
         or have him taken without unnecessary delay be-
         fore the magistrate who may have ordered the
         arrest or before some magistrate  of the county
         where the arrest was made without an order.
         The magistrate shall immediately perform the
         &ties described in Article 15.17 of this Code."
          (Emphasis added).
         Article 15.17 reads as follows:
             "In each case enumerated in this Code, the
         person making the arrest shall without unnecessary
         delay take the person arrested or have him taken
         before some magistrate of the county where the
         accused was arrested. The magistrate shall inform
         in clear language the pp
         accusation against him and of any affidavits filed
          therewith, of his right to retain counsel, of
         his right to remain silent, of his right to have
         an attorney present during any interview with
         peace officers or attorneys representing the
         State, of his right to terminate the interview
         at any time, of his right to request the appoint-
         ment of counsel if he is indigent and cannot
         'a'ffo'rdcounsel, and of his rrght to have an exam-
         "ing trial. He"shal1 also inform the person
          a&s&d      -thaf~he"is not required to make a state-
         ment and that anv statement made bv him mav be
          used against him: The magistrate shall aliow the
         person arrested reasonable time and opportunity
          to consult   counsel and shall admit the person
          arrested to bail if allowed by law." (Emphasis added.)
       Magistrates may appoint counsel for an indigent at an
examining trial by virtue of Article 16.01, which provides
as follows:
             "When the accused has been brought before a
          magistrate for an examining trial that officer
          shall proceed to examine into the truth of the
          accusation made, allowing the accused, however,
          sufficient time to procure counsel. In a



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Hon. John L; David, Page 3   (M-195)        I



       proper case, the magistrate may appoint counsel
       to represent an accused in such examining triar
       on&;,~~e"   comp.ensated,,as
                                  otherwise provided r
                   The accused in any felony case shall
       have the right to an examining trial before indict-
       ment in the county having jurisdiction of the
       offense, whether he be in custody or on bail, at
       which time the magistrate at the hearing shall
       determine the amount or sufficiency of bail,
       if a bailable case." (Emphasis addend.)
       Article 2.09 designates who magistrates are within the
meaning of the Code:
          "The judges of the Supreme Court, the judges
       of the Court of Criminal Appeals, the judges off
       the District Court, the county judges, the judges
       of the county courts of law, judges of the county
       criminal courts, the justices of the peace, the
       mayors and recorders and judges of the city courts
       of incorporated cities or towns."
        Whenever an investigation and interrogation centers on
 an accused, his rights tb an attorney shall be accorded to
 him upon request; and once such request is made, no further
 interrwation mav take olace in the attornev's absence.
'.Escobe& v. Illinois, li~L.ed 2d 977, 94 S.k. 1759, 370 U.S.
 WInMiranda              v. Arizona, 16 L.ed 2d 694, 86 S.Ct.
 1602, 384 U.S. 4n966)    , the United States Supreme~Court imposed
 a dutv on arrestinc officers to warn the accused at the time he
 is taken into "custody" and before interrogation begins of his
 right to counsel, and, if hendigent,      his right to have the
 court appoint him counsel.
        Since Article 16.01 specifically authorizes magistrates
 to appoint an attorney to represent an accused in a proper case
 at an examining trial, and Article 15.17 charges magistrates with
 the duty'of informing such accused of his rights to appointed
 counsel, it is our opinion that a magistrate has the duty to
 to appoint anattorney for an indigent accused person -if
 requested.
        We are supported in this conclusion by the requirements
 set forth by the United States Supreme Court in Escobedo v.
 Illinois, supra and Miranda v. Arizona, supra.


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Hon. John L. David, Page 4 (M-195)


       Your next question concerns whether the county is
authorized to pay an attorney who was appointed at a magistrate's
hearing immediately following arrest to assist an accused who
is "too poor to employ counsel."    Article 26.05 provides a
schedule for payment to counsel appointed to defend a person
accused of a felony or a misdemeanor punishable by imprisonment
for each day in trial court representing the accused. Also,
Article 16.01 provides thatan attorney appointed to represent
the accused in an examining trial shall be compensated as
otherwise provided In the Code. In Attorney General's Opinion
No. C-654 (1966), this office stated that attorneys appointed
tb represent an accused in an examining trial were entitled to
be compensated in accordance wzth provisions of Article 26.05.
It is our opinion that the first appearance "in trial court"
would be the appearance at the examining trial.
       We find no authority in the laws of this state for payment
of fees to an attorney appointed by a magistrate to assist an
accused indigent other than when appearing in court either in
examining trials or in other trials and in conducting an appeal.
See Article 26.05.
     'i
       The Commissioners Court is one 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 implication. Section 18, Article V,
Constitution of Texas; Article 2351, Vernon's Civil Statutes;
Bland v. Orr, 90 Tex. 492, 39 S.W. 558 (1997); Mills v. Lampasas
        90 Tex. 603, 40 S.W. 403 (1897); Anderson vi Wood, 137
%%    01, 152 S,W.2d 1084 (1941); Canales v. Laughlin, 147 Tex.
169, 214 S.W.Zd 451 (1948); Starr County v. Guerra, 297 S.W.Zd
379 (Tex.Civ.App. 1956, no writ); Von Rosenberg v. Lovett, 173
S.W. 508 (Tex.Civ.App. 1915, err.ref.
                                  Your
opinion that when a magistrate appoints counsel for an
indigent at the time such accused is brought before him following
arrest, the county is without authority to pay such attorney
for his assistance rendered prior to appearance "in trial court."

       In answer to your third question, it is our opinion that
whether an accused person is indigent and cannot afford counsel
is a fact issue for determination by the magistrate or court
requested to appoint counsel for an accused. This office does
not render opinions resolving fact ,issues. A. G. Opinion M-187
(1968). You are further advi~sedthat a magistrate shall require



                          -934-
Hon. John L. David, Page 5 (M-195)


an accused person to file an affidavit and receive evidence
and testimony concerning the facts of his indigency and inability
to afford counsel.
      Article 26.04 provides   in   part as follows:
          "(a) 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
          oint one or more practicing attorneys to
      i%ZiiThim.    In makina the determination, the
      court shall require the accused to file an
      affidavit, and may call witnesses and hear any
      relevant testimony or other evidence."
       (Emphasis added.)
       While there is no provision requiring filing of an
affidavit by the accused, other than set forth in Article
26.04, it is our opinion that a magistrate requested to appoint
counsel for an accused may require the filing of an affidavit
to such facts of indigency, and hear testimony or other evidence
in making the determination as to whether the accused is indigent
and should have counsel appointed for him.
       It is pointed out that under the holdings of Escobedo
v. Illinois, supra,~and Miranda v. Arizona, supra, a magistrate
should exercise caution in denvins appointment of counsel when
requested by an accused becaus; ail further proceedings against
the accused may become a nullity should the accused later prove
that he wa6 an indigent, had requested counsel, and was refused
same.
       You next ask whether an out-of-county counsel appointed
to represent an indigent in a capital case is entitled to
reimbursement for expenses'such as travel, room and board.
Whether appointed counsel is entitled to reimbursement for these
expenses depends upon the purpose for which they were incurred.
Article 26.05 provides that a court-appointed counsel shall
be paid "For expenses incurred for purposes of investigation and
expert testimony, not more than $250. (Emphasis added.)




                         -935C
Hon. John L. David, Page 6 (M-195)


       It is the opinion of this office, therefore, that if the
purpose of the travel, lodging and board is for investigatory
purposes, appointed counsel are entitled under the provisions
of Article 26.05 to reimbursement for actual expenses incurred
and paid by him including expense of expert testimony in a
sum not to exceed $250.00.
       On the other hand,   if the purpose which necessitated the
incurring of the expenses   for travel, room and board for the
out-of-county counsel was   not investigatory in nature, but
is for attending trial in   court, it is the opinion of this office
that said attorney is not   entitled to reimbursement for these
expenses.
                      SUMMARY            /.
       1. If requested, a magistrate  has a duty to
       appoint an attorney for an indigent accused
       person at the time such accused is brought
       before him following arrest.
       2. The county is not authorized to pay an
       attorney who was appointed by a magistrate
       to assist an indigent person, except in those
       cases where statutory authority exists for
       such payment, i.e. the examining trial, the
       actual trial itself, or an appeal.
       3. Whether an accused person is indigent
       is a fact issue for determination by the
       magistrate or court requested to appoint
       counsel for such an accused. A magistrate,
       however, may require the accused person to
       file an affidavit and may receive other
       evidence and testimony concerning the facts
       of his indigency and inability to afford
       counsel.
       4. Counsel appointed under the provisions
       of Article 26.05, Vernon's Code of Criminal
       Procedure, to represen~tan indigent person'
       in a capital case is not entitled to reim-
       bursement for travel, room and board in
       connection with the trial of such accused,



                            -936-
Hon. John L. David, Page 7 (M-195)


       but is entitled to reimbursement for
       actual expenses incurred and paid by
       him for purposes of investigation and
       expert testimony in a sum not to exceed
       $250.00.
                                       truly yours,




Prepared by Monroe Clayton and
Robert E. Owen
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns B. Taylor, Co-Chairman
W. V. Geppert
Lonny Zwiener.
Harold Kennedy
Jack Sparks
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.




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