Untitled Texas Attorney General Opinion

The Attorney General of Texas JIM MAlTOX &ril 26, 1985 Attorney General Supreme Court Bullding Eonorable Richard 6. I4orales Opinion No. m-312 P. 0. Box1254a Webb County Attorncg *ustIn,lx. 78711. 254a 51214752501 1104 Victoria RA: Whether a court-appointed Telex 51wS74-122.7 Laredo, Texas 7806.0 attorney muat be provided for au TelmDpler 5121475aaS indigent in every misdemeanor CAAe 714 Jackron. Suit. 700 oallas. TX. 752024506 Dear Mr. Horalaa: 214f742aS44 You aak generally whether a court-appointed attorney must be provided for an incHgent defendant in every misdemeanor case. YOU 4S24 Alberta Ave.. Suite la0 express concern in particular about misdemeanor cases vithln the El Paso, lx. 7980527S3 SlY533-3uu jurisdiction of jwtlce courts. Such courts lack jurisdiction over misdemeanora which involve the poas$ble punishment of conf%nement in jail. You alao lndtcate that you seek our opinion vith regard to 1001 Texu, Suite 700 possible modification of a consent decree recently entered into by noumm, TX. 77oQ2Jlll Webb County. Rovewrr. your specific question does not directly relate 7132255Sm to the provisiona of the consent dacree~. 805 Broadway. Suite 312 The consent decree in queation deals with the appointment of Lubbock, TX. 78401-2479 attorneys to reprment indigents in the context of the times vithin 5w-747.5238 vhich au attoruey must be appointed, if indeed one must Gappointed at all. You ask #bout the B of case in which an attorney must be 009 N. Tenth. Suite B appointed; Le.. vh,ether an attorney must be provided for an indigent McAllen. 7X. 7S501.15S5 in any and x ml sdemeanor cases. If your request vere to question 512mS2.4547 the consent dacrec! itself, ve could not respond because it has long been the establisheta policy and practice of this office not to render 200 Main Ptua. Suite 400 opinions concerning specific matters vhich are actually In litigation San Antonio, TX. 752052797 or under the retalmed or continuing jurisdiction of the courts. The 51212254191 consent decree reveals that in this case the court has retained jurisdiction to twsure compliance vith its decree. Accordingly, although soma of one following discussion deals with issues related to An Egu4l Opportunity/ Alfirmative Action Employer the provisions of the consent decree, we address only the general state of the lav --’ not the provisions of a court order to which the county has agreed. See generally Alberti v. Sheriff of Rarris County, 406 P. Supp. 649, 668 (S.D. Tex. 1975) (federal court. in the exercise of its -dendent jurisdiction, has- wide discretion in ordering defendants to conply with state law and in fashioning effective relief). It is vell eotablished that in all felonies and at least in all misdemeanors which are punishable by confinement in jail, an accused p. 1423 Ronoreble Richard G. Morales - Page 2 (JM-312) has the right to the effecttve assistance of counsel. See Gideon v. ;;;J;ght, 372 U.S. 335 (1963) ; Attorney General O-ion C-656 The right to have the state provide counsel to persons who cannot afford a lawyer exterds to every case in vhich the litigant may be deprived of his personal liberty if he is convicted; the right does not depend upon labels of “c~Lvll” -or “criminal.” Lassiter v. Depart- ment of Social Services, 452, U.S. 18, 25 (1981); In re Gault, 387 U.S. 1. 41 (1967); Ridgway v. Btker. 720 F.2d 1409, 1413 (5th Clr. 1983). Moreover, the appointment ,;ji-counsel to represent indigents is re- quired at every-stage of a criminal proceeding in which substantial rights may be affected. Mempa v. Rhay, 389 U.S. 128, 133 (1967); EX part8 Morse, 591 S.W.2d ZJ, 905 (Tex. Grim. App. 1980); 8x parz Lemay. 525 S.W.2d 1, 2 (TKK. Grim. App. 1975); see also HcGee v. Estelle, 625 F.2d 1206 (5th Cir. 1980). cert. denied 449 U.S. 1089; but see Ross v. Moffitt, 417 U.S. 600, 615-618 (1974) (after the appointment of counsel for an indigent’s first appeal of right from his conviction to an intermediate state appellate court, the state need not appoint counsel for the indigent’s subsequent discretionary appeal to the stste’s highest court or for an application for certiorari to the United Stcltes Supreme Court). In substantial accord with these rulings, section (a) of article 26.04 of the Texas Code of Criminal Procedure provides: Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or -a misdemeanor Punishable by imr;isonment is too poor to employ counsel. the co& shall aoooint one or more practi& attornlzys to defend-him. In making the determination, tbz court shall require the accused to file an affidwit, and may call vitnesses and hear any relevant testimony or other evidence. (Emphasis added). Your request requires a determination of whether this provision of the Code of Criminal Procedure or the constitutional principles made applicable to the states by the Fourteenth Amendment of the United States Constitution require that the state provide an indigent with an attorney in all misdemeanor cases. Including those mis- demeanors within the jurisdiction of justice courts. Some of these misdemeanors do not involve potential imprisonment. We conclude that the state is not required 11~’the Code of Criminal Procedure or by the United States Constitution to provide counsel to indigents accused of crimes or othervise subjec.t to court proceedings when the possible punishment for the crime ,>‘c proceeding does not involve a loss of personal liberty. Article 4.11 of the Code of Criminal Procedure provides that “[j]ustices of the peace shall have jurisdiction in criminal cases p. 1424 Honorable Richard G. Morales -’ Page 3 (Jn-312) there the fine to be impowd by law may uot exceed tvo hundred dollars.” Justice courts lsck jurisdiction to determine finally any criminal action in which the punishment prescribed by law may be a fine exceeding $200 or may involve imprisonment for any length of time. Ex part8 Morris, 325 S.W.Zd 386 (Tex. Grim. App. 1959). In eases which do not involve potential imprisonment, the state need not appoint counsel. The present confusion :nsy have arisen because justices of the peace may, in their role as magistrates, take complaints and Issue varrents in cases vhere their courts have no jurisdiction over the final resolution of the catle. Bx parte Ward, 560 S.W.Zd 660. 662 (Tex. Grim. App. 1978); Attorney General Opinion C-718 (1966); see also Tex. Code Grim. Proc. art. 16.01; Bart v. State, 15 Tex. Ct. AK 2O2(1883); Attorney General Opinion C-654 (1966). Because a state- appointed attorney for indigents Is constitutionally required at every stage of a criminal proceetljlng in which substantial rights may be affected, the United States Constitution may require that a court- appointed attorney be providled to represent an indigent in certain adversary proceedings condu’lted in justice courts. This question, houever, deals with the time, during the criminal procedure, at which an attorney must first be ilppointed to represent an indigent. The consent decree in the instant case deals with this issue. You ask whether the law requires that an attorney must be appointed to repre- sent an indigent in all misdemeanors -- In particular, misdemeanors vhich do not involve the pun:lehment of potential incarceration. Thus, the stage at which substantial rights are affected, and at which an attorney must therefore be appointed in particular cases, is beyond the scope of your recluest. We conclude only that neither the United States Constitution ror article 26.04 of the Code of Criminal Procedure requires that the state provide an indigent vith an attorney in a case which does not involve the punishment of potential incar- ceration. No other statutes or es!:ablished constitutional case law requlres the appointment of an attorrey to represent an indigent accused of a misdemeanor or other act for which loss of liberty is not a potential punishment. Article 1917, V,!r.C.S.. provides that [jludges of dis:rict courts may appoint counsel to attend to the ‘cause of any party who makes affidavit that he :Le too poor to employ counsel to attend to the same, (Emphasis added). Simil~arly. article 1958. V.‘T.C.S.. grants the same discretion to county judges. There is no corollary statute for justices of the peace. Moreover, the acts were adopted as part of the civil statutes and are not mandatory. Sel? Sandoval v. Battikin. 395 S.W.2d 889. 893-94 (Tex. Civ. App. --&pus Christi 1965, writ ref’d n.r.e.), Ronorable Richard G. Horales '- Page 4 (JM-312) cert. denied 385 U.S. 901 (1966). Conrequently, the state need not provide a court-appointed at,torney for indigenta accused of crimes or other acta for which loss of liberty la not a possible punishment. SUblklARY The state Is not required to appoint an attorney for au indigent defendant in cases which do not involve the possible punishment of a loss of liberty. , Vev/zj& ‘IAu JIM MATTOX Attorney General of Texas TOMGREEN First Assistant Attorney General DAVID R. RICEARDS Executive Assistant Attorney General ROBERTGRAY Special Assistant Attorney Ganeral RICX GILPIN Chairman. Opinion Comittee Prepared by Jennifer Riggs Assistant Attorney General APPROVED: OPINION COl44ITTEE Rick Gllpin. Chairman Jon Bible Colin Carl Susan Garrison Tony Guillory Jim noellinger Jennifer Riggs Nancy Sutton p. 1426