Untitled Texas Attorney General Opinion

-. 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&-:, 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 A p. 660