Untitled Texas Attorney General Opinion

Honorable E. L. Max Hamilton Opinion No. C-590 County Attorney Terry County Re: Whether a judgment of Brownfield, Texas convictionin a mis- demeanor case, punish- able by imprisonment and the defendantwas too poor to employ counsel ana the court failed to appoint counsel to represent him, is valid or void, Dear Mr. Hamilton: - and related questions. Your letter requesting an opinion of this office reads substantiallyas follows: Pursuant to Article 26.04 of the Code of Criminal Procedure, it is my opinion that the provisions of said Article re- quire that the County Court MUST appoint counsel for all misdemeanor cases punish- able by possible imprisonmentwhen the defendant cannot afford counsel. would you please give your opinion concerning the following cases: What would be the effect of a juc&ent of convictionagainst a aefend- ant in such a misdemeanor ease without having counsel appointed? 2. What if a defendant is able to afford counsel and refuses to a0 so? Must the Court still appoint such coun- sel for hiti? 3. Are not the rules applicable to District Courts for the State of Texas in regarding appointmentof counsel ap- plicable to the County Courts in cases of misdemeanorscarrying a possible jail sentence? -2890- . ( Honorable E. L. Max Hamilton, Page 2, (c-598) Article 26.04, Vernon's Code of Criminal Procedure, provides: "(a) Whenever the court determinesat an arraignmentor at any time prior to ar- raignment that an accused charged with a felony or a misdemeanorpunishableby im- prisonment is too poor to employ counsel, the court shall appoint one or more prac; ticing attorneys to defend him. In making the determination,the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testi- mony or other evidence. "(b) The appointed counsel Is entitled to ten days to prepare for trial, but may waive the time by written notice9 signed by the counsel and the accused." In answer to~your~first_questfon, by virtue of the express provisions of Article 2o,.O4of the Code of Criminal Procedure, it is the opinion of thls office, unless waived by the defendan%, that the new Code of Criminal Procedure will require the appointmentof coumel for indigent de- fendants in misdemeanor cases punishableby imprisonment. The failure of the trial court to appoint counsel for an indigent defendant charged with a felony or a misdemeanor nunlshablebv imnrisonmentwill render the convictionof the defendant void, ?St?Donaldv. Moores 353 B.2d 106 (C. A. 1965); Gideon v. . 335 (1963); %rn- rveg v. Missi~- In answer to your second question, we have been unable to find any provision fn the new Code for appoint- ment of counsel for a defendantwho is not indigent. Neither has the United States Supreme Court held that a non-indigentdefendant is entitled to assigned counsel. Therefore, it is the opinion of this office that where the trial court has advised a defendant of his right to the as- sistance of counsel and has made a determinationthat the defendant is not too poor to employ counsel, the defendant should be given an opportunityto contact an attorney If he so desires. If the defendant still does not desire coun- sel, then a writ&n record of the determinationthat the de- fendant is not indigent should be ffled among the papers of the cause along with the advice of the court and the de- fendant's waiver of counsel. -2891- . . Honorable E. L. Max Hamilton, Page 3, (c-598) In answer to your third question, It is the opinion of this office that the rules now applicable to district courts of the State of Texas, in regard to the appointment of counsel, are applicable to county courts in cases of mis- demeanors carrying a possible jail sentence. Article 26.04. SUMMARY A judgment of conviction in a misdemeanor case punishable by Imprisonment is void where the defendant Is too poor to employ counsel and the trial court has failed to appoint coun- sel to represent him, unless counsel has been waived by the defendant. If the defendant is able to afford counsel, the court is not re- quired to appofnt counsel for him. The rules applicable to district courts, In regard to the appointment of counsel, are applicable to county courts In ca3es of misdemeanors, car- rying;a possible jail sentence. Yours very truly, WAGGONER CARR Attorney General of Texas Asslstant'Attorney General DHC/dt APPROVED: OPIRION COMMITTEE: W..V. Geppert, Chairman Robert E. Owen Howard M. Fender Lonny F. Zwiener John Banks APPROVED FOR TIIEATTORmY GENERAL BY T. B. Wriqnt -2892-