Untitled Texas Attorney General Opinion ( 1985 )

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