OFFlCE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
QCIIALD
c. MANN
*-.umwA
Eonorahle Murphy a01 e
county Auditor
Liberty County
Liberty, texmi
Dear Bir(
Te roknorledge ri receipt of pour let-
ter or May est Sor m3 opinion 88
eontrlned Ln pour ccordance rith your
letter of May ur request and as
originally
f May et& rlll
lainfs charged
, all oomp1aints
itted at different
were charged with
ely ahioen theft.*
tice hold the lhmninlng Trial
endants at the sane time or must
g trial for each ofienseT
be tried mparately -- 8nd
on all four offenees oharged
*If all defendants waive nrsanlningtrial
is the Justice entitled to a fee' the County
Attorney,not present on the triai b;p am% not
putting on any evibeneeV
Honorable Murphy Cole, May 29, l998, Page D
Article,lODO, Code of Criminal Procedure, l925, as
amended by the Acts of lva3, 4Drd Legislature, Chapter 08,
reach in part as Sollors~
*In each case where a County Judge or a Jus-
tice tifthe Peaoe shall sit as au examining oourt
iu a felony 8ase, they shall be entitled to the
name fees atlowed by law for sImflar services in
misdemeanor oases to Justioes of the Peace, aud
ten Gents for each one hundred words for writing
dom the testimony, to be paid by the gtate, not
to exceed mree aud go/200 ($3.00) Dollars, for
all his .menloes In rrhyone ease.
w...*
lDietr ioaudt County Attorneys, for attendiug
and prorreeuting my felony case before an examining
court, shall be entitled to a See of Tire aud no. 100
(g&00) Dollars, to be paid by the State for each
ease proseauted by him before such court. Buch fee
shall not be paid exaept in oases where the testimony
of the material ritnesses to the trausaction shall
be reduoed to writing, aubsoribed and sworn to by
aaid witnesses; aud provided further that such
m-l&ten testimony of all material witnesses to the
trausaotion shall be delfvered to the District Clerk
uuder seal, rho shall deliver the ssme to the fore-
-au of the grand jury and take his receipt therefor.
guoh foreman shall, on or before the adjourxment
of the grand jury, return the same to the clerk rho
shall reoeipt him and shall keep said testimony in
the files of his office for a period of five years.
sIbhefees mentioned in this Article shall be-
Gone due and payable only after the indictment of
the defendant for an offense based upon or growing
out of the Charge filed in the ezsmining court and
upon an itemized account, sworn to by the officers
claiming suoh fees, approved by the Judge of the
District Court, and said County or District Attorney
shall present to the District Judge the testtiony
transoribed in the ermnining trial, rho shall examine
Ponorable Murphy Cole, Day 99, l999, Page 8
the ssme and certify that he has done so and that he
finds the testimony of one or more witnesses to be
materialr and provided further that a oerttiioate
from the District Clerk, showing that the written
testimony of the material witnesses has been riled
with said District Clerk in aooordance with the
preceding paragraph, shall be attached to said ac-
count before such District or.County Attorney shall
be entitled to a See in any felony case for seryices
performed before an exsmlnlng court.
@Only one fee shall be allowed to any officer
mentioned herein for services rendered in an examin-
ing tria$ though more .thanOne defendant is joined
in the oomplaint, or a severance is had. Then de-
fendants ,areproceeded against separately, who could
have been proceeded against jo$ntly, but one fee
shall be allowed in all cases that could have been
ao joined. Eo more than one fee shall be allowed to
any officer where more than one Case Is filed against
the ssme defendant for offenses growing out of the
same oriminal act or transaction. The account 0s
the officer and the approval of the District Judge
must affirmatively show that the provislons of this
Article have been Complied with.*
Article 999 of the Code of Criminal Procedure, l92&
proridear
*The accused may waive an examining trial in
any bailable case and oonsent for the magistrate
to require bail of him; but the prosecutor or
magistrate may examine the witnesses for'the State
as In other cases. Phe magistrate shall send to
the proper clerk with the other proceedings ~3.n
the
oaae a list of the witnesses for the State, their
residence and whether examined,'
The above ArticrlelC#) provides that when the defen-
dants are proceeded against separately, who could have been
proceeded against jointly, but one fee shall be allowed In all
oases that should have been so joined. While this provision
places a limitation on the fees under such clroumstances, we
Honorable Murphy Cole, Day ~29,1939, Page 4
I
Sina no statutory prohibition against holding exmmdnlng trials
separately for each defendant iueach Wime or'#Senme charged.
A proper oonstruction of the statute, would be to give reoog-
nitlon to the defendant8 ahhargedin more than one came, to
each Crimeaor offense for which they are charged, and for each
much case or offenme, aocord them a separate examining trial.
6hould the defendants offer no objection, we mee no reason why
the justioe'may not hold one examining trial for all ofrenmem
or separate tranmaetions for mhloh all the defendants are
oharged. Porker, where five defendants are charged by separate
oomplaints with the mane crfminal act or offsnme, regardless of
whether or not mn exaslning trial is held for each, the mtatute
limits the justloe to only one.exsminiag trial fee for the of-
fense or erlminal sot committed jointly by all. Xt has long
been the policy of the state to allow only one much examining
trial See In much cases. In all cases that could have been mo
joined, the mtatute only authoriees one exsminlng trial fee.
2% answer to your first question, It is the optimion
of this department that the justice may hold one examining
trial of five defenlknts charged with the same oSfense or
orlmlnal act. Xhere the Sive~defendants are by three addi-
tional complaints charged with three other offenses, of the
mane nature but different transactions, sn exsmlning trial on
each complaint should be accorded all the defendants. It I.8
not mandatory that each defendant be given an examining trial
meparate from the other defendants so charged, all beiag in'
oumtody.
Pour attention Is direoted to the provisions of
Article 1020, supra, which provides the Sees to which a fuetice
of the peace shall be entitled In each case Where a fustioe OS
the ueace shall sit as an exsr&i%F court in a felony Cake.
Article 290, supra, authorimes the justices to proceed with mn
exsminlng trial eren though the defendant8 waive mate. Porch
. State, 51 Cr. Rep. 7, DQ S. X. ll24. Xhe fact that the
oounty attorney was not present on the trial day and did not
put on any evidence would not necessarily prevent the justice
of the peace from examining the witnesses or holding an examin-
ing trial under the provisions of the statutes set forth here-
in. Such fact question is authorized to be passed upon by
the District Court when the acoount of the justiae for his See
is presented for approval.
-
-
Honorable Murphy Oole, May 29, lS3SBIpage 5
In answer to your meoond question, therefore, it is
the opinion of this department that where all defendants waive
exemlning trial for the mmme oiiense or criminal act charged,
the justice being authorieed to proceed, must aomply with the
provisions of Article ~8, Code of Criminal Prooedure, se&
before being entitled to a See for holding an exmninlng trial.
Trusting the above mnmwerm your requests, we remain
Xours very truly
ATTORTEX GRTERAL OF TlUAS
W.lllmn J. 8. .P;ing
Amsietmnt
(APPROVED
APPROYJRII (Opinion Committee
(By EQB, Chainnau.
(Signed) Qerald 40 Mann
ATTOItHEXGMERAL OF TEXAS