(dissenting).
I respectfully continue to enter my dissent. I wish only to add a few more words *916in support of my view that the Sandovals have not been afforded the effective assistance of counsel nor due process of law.
Here, as in so many other areas of the law, the basic problem is one of degree, one of where to draw a line.
The essential facts are not in dispute. Only questions of law are presented in this case. All that is necessary here is the proper application of law to undisputed facts. The effect of facts conclusively established presents a question of law. Whether the conduct of the legal aid attorney — what he did or did not do — constitutes the effective assistance of counsel, presents a question of law. Whether the Sandovals have been deprived of due process of law is a question of law.
The Sandovals are illiterate indigents. Their trial counsel was provided by the State of Texas, through a legal-aid office operated by its subdivision, Nueces County. The Sandovals had a defense which, if sustained, would have caused them to prevail. Their trial counsel did not present this defense; but he could and should have done so. His failure is legally unexplained. Nor can it be excused. Everything he left undone could have easily been done. Beyond cavil the conduct of the legal-aid attorney requires the conclusion that the Sandovals were provided no legal representation at all. The effect of this was to keep them from having their day in court.
To hold against the Sandovals and deny them a new trial in these circumstances is effectively to deprive them of rights guaranteed them by the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. The- requirements of that clause do not compel perfection nor any particularly high degree of competency on the part of counsel furnished by the State for indigents. But that clause does impose minimum standards of skill and effort which may not be violated without depriving the indigent of due process of law. See Lunce v. Overlade, 244 F.2d 108 (7th Cir.1957), 74 A.L.R.2d 1384, 1390, 36 Tex.Law Rev. 224.
The crucial question is whether the Sandovals’ legal-aid counsel furnished assistance sufficient to meet those minimum standards. It is still my opinion that he clearly did not.
The concept of effective assistance of counsel is meaningless if the standard is so low that an attorney, as in this case, (1) can accept a case knowing that he does not have time and will not take time to prepare his client’s defense, (2) does not understand his client’s case because of a language barrier, (3) announces ready for trial when he is not prepared to present his client’s defense, (4) does not ask questions of his client on the trial of the case where the client is in position to give potent testimony supporting his defense, (5) does not produce other witnesses who are readily available to give important testimony supporting the client’s defense, (6) does not produce readily available documents in possession of his client and the adverse party which support the client’s defense, and (7) affirmatively acts against the best interest of his client by making a stipulation as to copies of instruments which are essential to the adverse party’s cause of action, which would otherwise be inadmissible, and without which the adverse party could not have proceeded to trial unless to lose the case.
There was only one way in which the legal-aid attorney could have represented the Sandovals in this case. That was to present on the trial of the case the readily available evidence showing that an essential link in Rattikin’s title was a mortgage, not a deed, and that he had notice of such fact. Although the legal-aid attorney was required to follow this clearly defined route in order .to present the Sandovals’ defense, he did not complete a single step in that direction. We are not dealing with a case involving mere mistake or oversight, but instead, one in which there was, in effect, no representation of the indigent defend*917ants in protecting the title to their homestead.
Since the original opinions herein were handed down, two cases have been reported which I desire to mention briefly. These are Tamburello v. Welch, 392 S.W.2d 114, decided by the Supreme Court of Texas on June 2, 1965, and Schaber v. Maxwell, 348 F.2d 664, decided by the United States Court of Appeals for the Sixth Circuit on July 14, 1965.
In Tamburello v. Welch, supra, the Supreme Court reversed the lower court judgments and remanded the case for new trial. At page 118 of 392 S.W.2d of the opinion, the court said:
“ * * * it is our opinion that the trial was so materially unfair that the judgment cannot be upheld.”
* * * * * *
“In Texas Employers' Ins. Ass’n v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, we observed that an action or occurrence may be so highly prejudiced and inimical to the fairness of a trial that the burden of going forward with proof is met, prima facie at least, by simply showing the improper act and nothing more. It was also pointed out that the burden of the complaining party is met by showing that the trial which resulted in a judgment against him was materially unfair.”
In Schaber v. Maxwell, supra, the Court of Appeals on collateral attack set aside an Ohio State Court conviction for the reason that the defendant was deprived of due process because of lack of the effective assistance of counsel. There, it was held that the court-appointed attorneys for the defendant failed to take an essential step required by Ohio law in order for the defense of insanity to be urged, i. e., the filing of a written plea of “not guilty by reason of insanity.” The original trial was before three State Court Judges on waiver of trial by jury, which is permitted by Ohio law. The defendant exhausted his State Court remedies and certiorari was denied by the Supreme Court of the United States, with Justice Douglas expressing the opinion that the petition should be granted. The issue of incompetency of counsel was not raised in any of the foregoing proceedings, but, thereafter, the defendant sought leave to file a second appeal in the Court of Appeals of Ohio which was denied and no appeal was taken from such action. In addition, the defendant filed an action in habeas corpus in the Supreme Court of Ohio which was denied and no appeal taken. Still later, the defendant filed application for writ of habeas corpus in the United States District Court for the Southern District, Eastern Division, of Ohio, which was denied. That action was reversed by the Court of Appeals, as above referred to. Although it is a criminal case, the holdings and discussion of the Court of Appeals in Schaber v. Maxwell, concerning the lack of effective assistance of counsel and resulting denial of due process are highly material to a civil case where an indigent loses his State Constitutionally protected homestead for the same reasons. At page 673 of the opinion, the Court said:
“Under the facts and circumstances of this case we are of the opinion that petitioner was deprived of due process of law at his trial in the state court, under the standards applied in the decisions hereinabove cited, because of the failure of his counsel to file a written plea of ‘not guilty by reason of insanity’ and the conclusive presumption of sanity in the absence of a written plea.
“It is to be re-emphasized that petitioner was not in fact tried in the state court on his defense of insanity. There has never been an adjudication as to whether or not petitioner was sane at the time of the commission of the crime. His court-appointed counsel committed error that may have been disastrous to petitioner in trying the case upon a defense of insanity with*918out complying with the Ohio statute. The three judges of the state trial court committed error that was most prejudicial in permitting counsel to rely upon his opening statement as a plea of ‘not guilty by reason of insanity.’ In practical effect there appear to he crucial points at which petitioner was denied altogether any effective representation by counsel.
“This holding is not intended to be a reflection upon the character, integrity or professional reputation of either of the two court-appointed attorneys who represented petitioner in his criminal trial, both of whom are shown by the record to be reputable and experienced lawyers. We recognize that good lawyers can and do make mistakes; and in this case the mistake of counsel in a sense may have been induced by the failure of the trial court to indicate in any way that a written plea was necessary when counsel informed the court at the outset of the trial that petitioner was relying upon the defense that he was insane at the time of the commission of the crime.”
In Schaber v. Maxwell, supra, the Court reviewed some of the rules announced in earlier cases on the subject of effective -assistance of counsel. One of these rules is that if the conduct of an attorney “is so incompetent as to deprive his client of a trial in a real sense — render the trial a mockery and a farce is one descriptive expression, — the accused must have another trial, or rather, more accurately, is still entitled to a trial.” Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787 (1957), cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86. Another such rule is that effective assistance of counsel contemplates the conscientious services of competent counsel and mere perfunctory appearance for a defendant is not enough. United States v. Wight, 176 F.2d 376 (2d Cir.1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586; to like effect, Turner v. State of Maryland, 303 F.2d 507 (4th Cir. 1962), cert. denied, 364 U.S. 885, 81 S.Ct. 173, 5 L.Ed.2d 105. Another such rule is that “Where the defense is substantially weakened because of the unawareness on the part of defense counsel of a rule of law basic to the case, the accused is not given the effective representation guaranteed him by the Constitution.” Poe v. United States, 233 F.Supp. 173 (D.D.C.1964), opinion by Judge Skelly Wright, Circuit Judge sitting by designation, in which services of legal-aid counsel were held to be ineffective. Another such rule is that the guarantee of the Fourteenth Amendment is not satisfied by a mere formal appointment of competent counsel and that a denial of opportunity to confer, consult with the accused and to prepare his defenses, could convert the trial into a “sham”. Avery v. State of Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. Another such rule is that where the defendant is “ignorant of his rights and unacquainted with the course of proceedings”, the lack of skill and incompetency of an attorney will not be imputed to him. Tompsett v. State of Ohio, 146 F.2d 95 (6th Cir.1944), cert. denied, 324 U.S. 869, 65 S.Ct. 916, 89 L.Ed. 1424, which is a case involving employed counsel.
In Schaber v. Maxwell the defendant’s original trial attorneys were reputable, experienced and competent generally, but they did not render effective assistance of counsel specifically in that case because they failed to take a step which was essential to the defense. The original State Court trial judges were referred to by the trial judge in the Federal Habeas Corpus case as “three eminent and respected judges, with a total experience on the Common Pleas bench in excess of fifty years.” But the Court of Appeals held, nevertheless, that they had erred in convicting the defendant where he lacked effective assistance of trial counsel. The Court applied the rule that “what was or was not done by the defendant’s attorney for his client made the proceedings a farce and a mockery *919of justice”, and held that on such basis there was no effective assistance of counsel, which deprived the defendant of due process of law under the Fourteenth Amendment.
I agree with the view expressed in some cases that the above-stated rule is too general, harsh and strict. However, we can take it at face value, apply it to the instant case, and the Sandovals still would clearly be entitled to a new trial. There was a total failure on the part of the legal-aid attorney to present their case in any fundamental respect. The Sandovals were deprived of a trial in any real sense. The purported trial was lacking in fundamental fairness and the judgment against them was materially unfair.
None of the arguments advanced in support of denying the Sandovals a new trial will withstand close examination. They will be briefly considered. The presumption of implied findings in support of a judgment applies only to matters of fact where the evidence is conflicting and is sufficient to support the fact sought to be implied. There can be no implied finding of a fact in support of a judgment where it would be directly contrary to a fact conclusively established by the evidence. Not a single evidence-supported fact has been pointed to which can be impliedly found in support of the trial court order denying a new trial in this case. There is no such fact which will uphold that action.
The argument that the legal-aid attorney “did appear in the trial of the case, used his judgment as to how best to defend the case, and lost it” does not explain or justify the clear deficiency which is present here. What kind of judgment could the legal-aid attorney exercise when there was a language barrier between him and his clients, and he did not take time to investigate and prepare the defense, and did not produce the witnesses and documents which would establish it, or, at least, create fact issues as to the same? The answer which seems apparent to me is that judgment exercised in a vacuum is worthless and ineffective. Here, such alleged judgment amounted to a decision not to defend the case. The legal-aid attorney lost the case, not for himself, but for his indigent clients, because he did not prepare and present on the trial the defense which they clearly had and which should have been urged.
The argument that the Fourteenth Amendment to the Constitution is not involved in this case is untenable. State action within the purview of that amendment is present here because of (1) the conduct of the legal-aid attorney furnished by the County, a subdivision of the State of Texas, in failing to render the effective assistance of counsel, and (2) the action of the trial court in denying the Sando-vals a new trial. The cases cited in my original dissenting opinion clearly support this view. Schaber v. Maxwell, supra, is additional authority on the same point because it involves both lack of effective assistance of counsel and State Court judicial action. Admittedly, there is not a word of evidence in the record which would raise the issue or show that the legal-aid attorney was employed by a private organization or paid by private funds. How he was compensated would not be controlling in any event; nor is it necessary that he be a public official, although he testified concerning “The first three months I was in office.” The essential fact is that he was the Executive Attorney and Legal-Aid Director for the County and was acting for it in connection with his purported representation of the Sandovals. It is elementary and unquestioned that the action of the trial court in denying a new trial is the exercise of state power by judicial action. The action of this court in denying the Sandovals a new trial is also State action within the meaning of the Fourteenth Amendment to the Federal Constitution.
The remaining arguments asserted in support of Rattikin’s position relate to the *920fact that the first attorney for the Sando-vals withdrew from the case and Rattikin’s position as purchaser of their 1953 note. The first attorney did not represent the Sandovals on the trial of the case; if he had, there probably would have been a different result. But he did testify on the hearing of the motion for new trial that one reason he withdrew from the case, which appears to me to be the principal one, was that the Sandovals did not pay him a fee. He also said he had difficulty in keeping contact with them. It is easily understandable that this might be true in the case of South Texas Mexican farm laborers who must try to earn a living by doing seasonal argricultural work in many and distant places. The controlling question here involves only the lack of effective representation of the legal-aid trial attorney, and the withdrawal of the first attorney is immaterial to disposition of the case. It is not unheard of for an attorney to withdraw from a case because a client is unable to pay him a fee. The first attorney further testified that he believed he had referred the Sandovals to the legal-aid office. The present attorneys for the Sandovals are the only ones who have rendered the effective assistance of counsel by establishing that the trial wherein the legal-aid attorney purportedly represented them was lacking in fundamental fairness and in due process of law. As to Rattikin’s position, he elected to file a trespass to try title suit based on the purported deed from the Sandovals to Bosquez, instead of suing on the note or for reformation of it and the instruments creating a lien. If he really had a cause of action on such other basis he could have asserted it, but he did not do so. Rattikin did not file suit until 1960, and at that time a substantial portion of the balance of the 1953 note purchased by him was uncollectable as against a plea of limitation. The unusual steps taken by Rattikin in order to try to maximize his recovery are wholly immaterial to disposition of the case or to the proposition that the Sandovals were deprived of due process of law because of lack of effective assistance of counsel.
The Sandovals have, without their fault, clearly been deprived of a trial on the issues as to whether a neighborhood groceryman has required his indigent customer to give him a mortgage in the form of a deed to his homestead as security for a grocery bill, and whether a title company owner, who is trying to recoup a loss on a title policy resulting from his own mistake or that of his agent, had notice that such instrument was really a mortgage, so as to subvert the provisions of our Texas Constitution protecting homestead rights. Many reported cases have struck down as invalid similar attempts to circumvent homestead rights.
In my view, in a case such as this, a minimum standard of effective assistance of counsel requires (1) that the attorney make sufficient preliminary investigation to determine if the client has a defense to the action brought against him, and, if he does, (2) that the attorney produce on the trial of the case the available testimony of witnesses and documents, which tend to establish the client’s defense. Anything less than this amounts to no representation at all. That is what we have here.
I believe that we must maintain judicial sensitivity to the rights of the poor as well as to those of other persons. If we subscribe to and apply inadequate concepts concerning effective assistance of counsel and due process of law to the cases of indigents, in my view, our vaunted judicial process will be left poor indeed.
I would reverse the judgment of the lower court and remand the case for new trial.