Untitled Texas Attorney General Opinion

qme ,17, 1953 Hon. Frank D. ..~cCown Opinion Ho. ,,S-54 County Att.orney Dallam County ha: Validity of an Instrument Dalhart8 Texas executed by a defendant in a misdemeanor case, waiving trial by jury and appearance in person or by counsel and Dear sir: ent.erlng a plea of guilty. you have submitted the fol$orlng two questions for an.ew~r: ‘Ques.tlon One: Does the term .counse”l, a$ used in Article 582, C .C . P. .mean any one other t,han a party xcensed to pract+? law in the State of Te.xas? “Question !Pwo. Would a legal Instrument, drawn aa a waiver of all rights to a trial by jury, waiving all rights for the defenUant to her physlo,ally present In the Court room when~ the cas,e 1~ heard, and gunlsbment Is passed, waiving all rights to have an attorney at law appointed for him to b,e present in the Court room, and waive any and all-rights to c,onteat the decision of, the Court., be vall,d and bindlng wherein the ,charge is, a misdemeanor only?” : Article 581, Vernon’8 Code o,f Criminal Pro.ce- dure, reads as follows: “in other mls,demeanor casea, the de- fendant may, by consent of the state’s attorney, appear by counsel, and the trial Mayo proceed, w.ithout his p,eraonal pree,e,nce . ” , Hon. Prank D. McCown, page 2 (S-54) The word ‘!c,ouns,el’! has a legal meaning as de- fined by Words and Phrases, Per. Add. (1940) 10, page 8. “The word ‘counse,l’ as used. in Vernon’s Constitution of Texas, Artiple I,, Section 10, providing that an aocused has the right of being heard by himself or counsel ,or both, has a well es,tahlished mean%,ng and3.s there used it means an advocate, co,unseJlor or pleader, one .who @&3ts hisclient with advice and pleads for him in open court; and it does not me,an o:ne not admitted, to prac- tice law.” Rarkins ,v+ Murphy and Balons, 112 S..W. 136; Higgins vr: Parker, 191 S.W.2d 668 (Rehearing ~den$ed 1946)q Therefore,, we agree’ with you that “.counsel” means a llcensed,lawyer of th,is atat,e and that under. Article 581, Vernon’s Code of Criminal Procedure, in misdemeanor cas’es ,where the punishment ia by fine only, a defendant ‘may be represented bycounsel who Is a licensed lawyer in the State of Texas,, and’ the de,- fenda,nt’s physical pres.ene,e is not nece,&sary to a dis- position of his c.aae. particle 782, Qernon’s Code ,of Criminal Proce- dure, pr,ovJdes : ‘The judgment in a misdemeanor case may be rendered i,n the absence of the, :de,fendant.” Article 518, Vernon’s Code of Criminal i?ro,ce- dure, pro,vide.s : “A plea of guilty,in a misdemeanor c,ase may be made either by the defendant or his cound In 0,pen i,,o.ourt. In such ,caa,e, the- d,efendant or hla counsel may waive a jury, and the punishment may be aaeessed, by the Court; either upo,n or without evidence, at the discretion o,f the Courten Thus it rill be, seen that a waiver of tria.1 by jury of the defendant must be made in open court in a misdemeanor case L We’find. no authority for using a Hon. Frank D. McCown~ Page 3 (S-54) written waiver in misdemeanor cases, but the above quoted statutes seem to us to give full and ,complete authority to try defendant in his ab.sence in misdemeanor cases without a waiver when and only when he is represented by co,unsel. Article 11, Vernon's Code of Criminal Proce- dure, has no application to misdemeanor cases. The ' caption of the last amendment to.Artic,le 11 (Senate Bill 53, Acts o,f the 42nd Legislature, R-S., 1931, ch. 43, p. 65) restricts the provisions of this statute to felony oases less than capita,l. ~Therefore,~ you are advised that defendants in misdemeanor casea when punishment Is by fine only,~may be tried in their absence without securing waivers, when appearance is,, made by counsel. SUMMARY The word "counsel" in la)r,means a persons licensed to,practice law in the State of Texas. An instrument In the nature of a written waiver may not be us~ed by the deendant in a misdemeanar caas in lieu of his personal ap- pearance or appearance by his.counsel. Yours very truly, APPROVED: JOHN BEN SHRPPERD Attorney General J. C, Davis, Jr. County Affairs Division C. K. Ri.chards Reviewer B. Duncan Davis Assiatant Robert S. Trottl First Assistant John Ben Shepperd Attorney General RDD:am