Case Information

*1 -. S

The Attorney General of Texas Hay 2. 1984

JIM MAnOX

Attorney General Opinion No. J’M-151 Mr. Robert 0. Viterna~~

Supreme Cowl Building Exizcutive Director P. 0. Box 12548 AUK. TX. 7871s 254a Re: Whether a county jail must Texas Commission.on Jail Standards 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 a state statute. Bowever, the county charges the city making the arrest $50 a day for 4824 Alberta Ave., sldte la0 El Paso. TX. 7B905-2793 each prisoner until he is taken before a magistrate. You ask the ,gl$lm34a4 folltiing questions about this~practice: (1) Must the Bexar County Jail accept all

1001 Texas. Sulle 700 states delivered “ouI,~. TX. 77002-3111 police officers (see Attorney General Opinion 7132295886

MU-52 regarding municipal offenders)? SO5 Broadway, Suite 312 (2) Must municipalities be required to pay Lubbock. TX. 7B401-3478 each..indivi+al until: that person [appears before 506i747.5235 a :6mg$sirate].? Or, *~ : 43OB N. Tenth. Suite B . (3) -Must the vkstor [appear before McAllsn. TX. 7S5Ol.l~W magietrate] prior to delivery to the Bexar County 512mS24547 Jail?.

2co Main Plaza. SUIIO 400 (4) And, must a district represent- San Antonio. TX. 782052787 ative be present at the magistrates hearing? 51212254191

City pollce?officers are peace officers, authorized to make arrests under. _ the : !&de of Criminal Procedure. Code Proc. arts. 2.12, An Equal Oppwtunllyf 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, *2 Hr. Robert 0. Viterna

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 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. 5116. Be is not, however. required by statute t&-<take

responsibility for a person arrested by city police uotil,the prisoner Is taken before a magistrate and committed to the county jail:. See .:~,.I’ - Attorney General Opinion E-169 (1973).

ui Attorney General Opinion IN-52 (1979) determioed that a sheriff had no duty to confine in the county jail pers~ons arrest&d violating only a municipal ordinance. This opinion relied in p&t on article 45.05 of the code, which makes the city chief of.:..p.plice responsible for persons convicted of an offense in municipal c’ourt.

It did not consider when the sheriff’s duty arose to incarcerate a ? person arrested by city police a state statute.

We answer your first and third questions as follows: The Bexar County Jail is required to accept state statute violators only after a magistrate or court has committed them to the jail.

. ;, :,;.t-, >:, Your second question concerns whether the cftfes may be required to pay for each prisoner’s keep until he is brought before 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 2.. Appeals, the judges of the District Court, the 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 *3 - Page,3 ,and the judges of the municipal courts of . , 2 “, 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. 16.06 (examining trial See, e. ., 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.

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,;$,).,:. SUMMARY

‘K? 1 .>

The Bexar County Jail is not required to accept state arrested

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 that purpose. A district representative need not be present at 3ti.:...i the magistrates hearing pursuant to article 15.17 of the Code of Criminal Procedure. .

JIM MATTOX Attorney General of Texas *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