Untitled Texas Attorney General Opinion ( 1988 )

November 8, 1988
Honorable Mike Driscoll Opinion No. JM-977
Harris County Attorney
1001 Preston, Suite 634 Re: Appointment of counsel for
Houston, Texas 77002 indigent. defendants under arti-
cle 1.051(c), Texas Code of
Criminal Procedure, and related
questions (RQ-1379)
Dear Mr. Driscoll':
You state that'the questions you ask have been prompted
by inquiries from justices of the peace in Harris County.
You note that the primary focus of your concern is the
appointment of counsel for defendants charged with class C
misdemeanors. Consecuentlv, our treatment of vour questions
will be limited to cases in the iustice court. You ask:
1. In what cases should the court appoint
counsel to represent indigent defendants?
2. Whether appointment of counsel for
indigent defendants is appropriate in peace
bond hearings?
3. Whether a defendant, who is committed
to jail and applies for a deferred payment
plan to secure release from jail, is entitled
to have an attorney appointed for him?
4. Whether there are circumstances other
than indigence that would require court
appointed counsel?
It appears that your questions have resulted from the
enactment of S.B. 1109 (now article 1.051 of the Code of
Criminal Procedure) by Acts 1987, 70th Leg., ch. 979,
section 1, at 3321, effective Sept. 1, 1987. Article 1.051
of the Code of Criminal Procedure provides in pertinent
part:
p. 4980
Honorable Mike Driscoll - Page 2 (JM-977)
(a) A defendant in a criminal matter is
entitled to be represented by counsel in an
adversarial judicial proceeding. The right
to be represented by counsel includes the
right to consult in private with counsel
sufficiently in advance of a proceeding to
allow adequate preparation for the proceed-
ing.
(b) For the purposes of this article and
Articles 26.04 and 26.05 of this code,
'indigent' means a person who is not finan-
cially able to employ counsel.
(c) An indiaent defendant is entitled to
have an attornev aDDointed to revresent him
in anv adversarv iudicial Droceedina that mav
result in Dunishment bv confinement and in
anv other Criminal Droceedina if the court
concludes that the interests of iustice
recuire reDresentation. If an indigent
defendant is entitled to and requests ap-
pointed counsel, the court shall appoint
counsel to represent the defendant as soon as
possible.
(d) An eligible indigent defendant is
entitled to have the trial court appoint an
attorney to represent him in the following
appellate and postconviction habeas corpus
matters:
(1) an appeal to a court of appeals:
(2) an appeal to the Court of Criminal
Appeals if the appeal is made directly from
the trial ,court or if a petition for discre-
tionary review has been granted;
(3) a habeas corpus proceeding if the
court concludes that the interests of justice
require representation: and
(4) any other appellate proceeding if the
court concludes that the interests of justice
require representation. (Emphasis added.)
Underlying principles of law relative to your first and
third questions have been addressed by numerous opinions of -.,
federal and state courts as well as opinions of this office.
P. 4981
Honorable Mike Driscoll Y Page 3 (JM-977)
In Araersinaer Ha ljg 407 U.S. 25 (1972) the
United States Suprem:' CouFt held that the right Lf an
indigent defendant in a criminal trial to the assistance of
counsel guaranteed by the Sixth Amendment and made applic-
able to the states by the Fourteenth Amendment in Gideon v.
Wainwriaht 372 U.S. 335 (1963), is not limited by the
classificaiion of the offense or by whether ornota jury
trial is required. The court concluded that an accused may
not be deDrived of his libertv as the result of anv criminal
prosecution, whether felonv or misdemeanor, in which he was
denied the assistance of counsel. In Araersinaer the court
noted that "everv iudae will know when the trial starts that
no imDrisonment mav be imDosed" and "the run of misdemeanors
will not be affected bv todav's rulinq." Arsinaer 407 U.S.
at 40. (Emphasis added.)
In Attorney General Opinion JM-312 (1985), it was
concluded that neither constitutional case law nor the
statutes require the appointment of an attorney to represent
an indigent accused of a misdemeanor in justice court since
the "justice court lacks 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." Attorney General Opinion JM-312,
at 3 (1985).
The United States Supreme Court held that a defendant
may not be imprisoned because he is too poor to pay his fine
in Tate v. Short, 401 U.S. 395 (1971). Citing Tate v.
Short, the Texas Court of Criminal Appeals concluded that a
defendant was entitled to relief in a habeas corpus proceed-
ing under these circumstances. Ex Darte Miniares, 582
S.W.2d 105 (Tex. Crim. App. 1978). This raises the question
of whether counsel should be appointed to represent an
indigent defendant accused of a class C misdemeanor in
justice court to avert the possibility that the defendant
who is too poor to pay his fine be imprisoned in violation
of Tate v. Short. Neither Araersinaer nor state statute
require that counsel be appointed in class C misdemeanors to
insure that there will not be instances when authorities may
illegally restrain a defendant who is unable to pay his
fine. We believe that this is the very type of situation
where the appropriate remedy is the writ of habeas corpus.
&S Code Crim. Proc. art. 11.01 et sea. In Attorney General
Opinion JM-403 (1985), it was noted that article 26.05 of
the Code of Criminal Procedure provides for payment of
counsel appointed to represent indigent defendants in habeas
corpus proceedings.
p. 4982
Honorable Mike Uriscoll - Page 4 (JM-977)
The Legislature in S.B. 1109 (now article 1.051 of the
Code of Criminal Procedure) provided an additional basis for
appointment of counsel for an indigent defendant in a
criminal case. Acts 1987, 70th Leg., ch. 979, 5 1, at 3321
(effective September 1, 1987.) Section (c) of article 1.051
provides that an indigent defendant is entitled to have an
attorney appointed in "anv other criminal DrOCeedinc if the
court concludes that the interests of iustice reo-uire reDre-
sentation." (Emphasis added.) The legislature did not set
any guidelines for a court to determine when counsel is to
be appointed in "the interests of'justice." The legislature
undoubtedly concluded that this is a matter that necessarily
requires resolution on a case-by-case basis. Since section
(c) provides that this authority is given the court in "any
other criminal proceeding 'Ithe justice court would appear to
have discretion to appoint counsel for an indigent defendant
in a class C misdemeanor case when the justice of the peace
determines that the interest of justice requires such
appointment.1
The matter of appointment of counsel for indigent
defendants in civil cases was reviewed in Attorney General
Opinion JM-403 (1985). In Attorney General Opinion JM-403
it was stated: --.
This right to have the state provide
counsel extends to every case in which the
litigant may be deprived of his personal
liberty if he loses: the right does not
depend merely upon labels of 'civil' or
'criminal.' LaSSiter v. DeDartment Of Social
Services, 452 U.S. 18, 25 (1981); In re
1. The bill analysis to S.B. 1108 focuses on provisions
other than the instances in which counsel should be
appointed. The purDose of S.B. 1108 is stated, as follows:
To provide a uniform state-wide system for
determining indigency and for permitting waiver of
counsel; permitting the Court to order indigent
defendants to make partial payment of court-appointed
attorney fees: removing the maximum limit the Court can
order for the payment of doctors and other expert
witnesses: and removing the minimum the court can pay
appointed counsel.
Bill Analysis, Tex. S.B. 1108, 70th Leg. (1987). -.
P. 4983
Honorable Mike Driscoll - Page 5 (JM-977)
Gaule, 387 U.S. 1, 41 (1967); pidcwav
3-, 720 F.2d 1409, 1413 (5th Cir. 1983:;
~~~~ Attorney General Opinion JM-176
. The Fifth Circuit in pidcway applied
this rule to an accused father who was denied
counsel and condemned to imprisonment for
civil contempt in a nonsupport proceeding
despite an uncontroverted assertion of
indigency. &g 720 F.2d at 1413.
We considered the nature of 'civil'
contempt proceedings at length in Attorney
General Opinion JM-176 and concluded that
'[wlhether classified as civil or criminal,
contempt proceedings invariably invoke
certain aspects of the criminal process.'
The Texas Supreme Court has declared that 'a
contempt proceeding is unlike a civil suit,
has some of the incidents of a trial for
crime, and is quasi-criminal in nature.'
parte Cardwell, 416 S.W.2d 382, 384 (Te?
1967)'(citing Ex narte Davis, 344 S.W.2d 153
(Tex. 1961)). Consequently, proceedings in
.-
contempt cases should conform as nearly as
possible to those in criminal cases. &
parte Bvram, 662 S.W.2d 147 (Tex. App. - Fort
Worth 1983, no writ); Deramus v. Thornton,
333 S.W.Zd 824, 829 (Tex. 1960): Ex narte
Stanford, 557 S.W.2d 346, 348 (Tex. Civ. App.
- Houston [lst Dist.] 1987, no writ): see
also Ex narte Wilson, 559 S.W.Zd 698, 701
(Tex. Civ. App: - Austin 1977, no writ).
Thus, state law as well as federal law
recognizes that the mere labels of 'civil' or
'criminal' should not control due process
considerations.
Attorney General Opinion JM-403, at l-2 (1985).
In Attorney General Opinion JM-312 (1985), it was noted
that then article 1917, V.T.C.S. (now section 24.016 of the
Government Code), provides that a district judge may appoint
counsel to represent any party who is too poor to employ
counsel. Similarly then article 1958, V.T.C.S. (now section
26.049 of the Government Code), grants the same discretion
to county judges. However, it was pointed out that there is
no corollary statute that would enable justices of the peace
to appoint counsel in civil cases. It was further noted
that the provisions relative to district and county judges
were adopted as part of the civil statutes and are not
p. 4984
Honorable Mike Driscoll - Page 6 (JM-977)
-.
mandatory. While there is no statute authorizing justices
of the peace to appoint counsel in civil proceedings,
federal constitutional laws as construed by the United
States Supreme Court would nevertheless require appointment
of counsel in a civil case pending in justice court when the
litigant may be deprived of his personal liability if he
loses. Perhaps the absence of a statutory proceeding stems
from the Legislature not envisioning a civil proceeding in
justice court which might result in the losing party being
deprived of his personal liberty.
In your first question you ask in what cases the court
should appoint counsel to represent indigent defendants.
Since imprisonment is not a direct consequence of a class C
misdemeanor conviction (fine not to exceed $200), counsel
need not be appointed for an indigent defendant unless the
court determines that the "interests of justice" require
such appointment.
Your third question is prompted by the following
scenario:
The third question presented deals with
the special arrangement where the defendant -.
is permitted to pay his assessed fines by way
of a deferred payment plan, instead of being
confined for default in paying said fines.
You call attention to article 42.15 of the Code of
Criminal Procedure providing for the deferral of a fine
assessed upon conviction of a class C misdemeanor. See
Attorney General Opinion JM-898 (1988). In your scenario
you assume that such a deferral procedure may be the only
alternative to confinement in jail for a defendant who is
unable to pay his fine. Article 42.15 of the Code of
Criminal Procedure provides for a form of probation avail-
able to defendants convicted of offenses with a maximum
punishment of a fine not to exceed $200. Attorney General
Opinion JM-526 (1986). At the end of the probationary or
deferral period the justice of the peace may imnose the fine
if it is determined that the defendant has not complied with
the requirements imposed under article 42.15. Since the
penalty is a fine, Tate v. Short, prohibits the imprisonment
of a defendant who is too poor to pay his fine. Further,
our conclusion to your first question that the justice court
is not required to appoint counsel to represent indigent
defendants charged with class C misdemeanors unless the
court determines "that the interests of justice require such
representation" appears to be dispositive of this inquiry.
P. 4985
Honorable Mike Driscoll - Page 7 (JM-977)
You next ask whether appointment of counsel for indi-
gent defendants is appropriate in peace bond hearings.
Article 7.03 of the Code of Criminal Procedure authorizes a
magistrate to require a person to make a bond conditioned
that he will keep the peace toward the person the magistrate
has found the accused has threatened. If it appears to the
magistrate from the evidence presented at the hearing that
the accused has committed an offense, article 7.13 of the
Code of Criminal Procedure provides that he shall be tried
for the offense. A peace bond hearing is usually in the
justice courts and is civil in nature because there is no
direct criminal sanction for its violation since it is a
procedure commonly employed prior to the commission of a
criminal act. Reamey, Legal Remedial Alternatives for
Spouse Abuse in Texas, 20 Houston L. Rev. 1279, at 1287
(1983).2 In Attorney General Opinion O-6669 (1945), it was
2. The Reamey article addresses the widespread use of
the peace bond procedure in spousal abuse cases.
Peace bonds have often been issued in
cases of family violence as an inexpensive
and readily available deterrent. . . .
As a practical matter, any remedy in the
field of spousal abuse must be available
quickly and inexpensively. Its availability
must be widely known, and it must address the
needs of the spouse requiring abuse
protection. It is just this availability
that has metamorphosed the peace bond into a
common protective device for spousal assault.
Because peace bonds are usually adminis-
tered by justice courts, they are easily
accessible. The geographical distribution of
such courts makes them the most convenient
forum for judicial intervention. In
addition, the informalitv associated with the
iustice court encouraaes pro se filina and
prosecution of netitions with minimal court
costs. The resulting frequency of peace
bonds as a violence control device insures
that victims will know of the existence of
this remedy and will seek it out in time of
need. . . .
(Footnote Continued)
P. 4986
Honorable Mike Driscoll - Page 8 (JM-977)
noted that, the only remedy the state has against one who
breaches a peace bond is a suit to recover on the bond.
The fact that a person may be required to make a bond
to keep the peace would not appear to trigger the necessity
for the appointment of counsel. If this were so every time
an appearance bond is set in a class C misdemeanor, counsel
would have to be appointed. (Article 17.20 of the Code of
Criminal Procedure allows peace officers to set bonds in
misdemeanor cases.) Neither the constitutional requirement
for appointment of counsel set forth in Araersinaer nor ,the
state statutes require such appointment. The problem in the
peace bond procedure arises when the defendant fails or is
unable to give the security for the bond set in the peace
bond hearing. Article 7.08 of the Code of Criminal Proce-
dure provides:
If the defendant fail to give bond, he
shall be committed to jail for one year from
the date of the first order requiring such
bond.
(Footnote Continued)
In spite of the difficulties inherent in
the peace bond procedure and pattern of
sanctions, the peace bond remains somewhat
effective as a deterrent. The efficacy of
any legal protection depends in large part
upon its ability to shape behavior, and in
this respect the peace bond has built an
admirable record upon a weak foundation.
Simply stated, it is the belief of the victim
and the abuser in the procedure that makes it
work. While hardly an imposing body in the
context of the entire legal system, the
justice court may well represent the only
visible representative of social order with
which the parties have been involved. There-
fore, one cannot underestimate the effective-
ness of such orders as nractical and useful
tools in deterrina domestic violence,
especially when divorce is not a desirable
alternative. (Footnotes in text omitted and
emphasis added).
20 Houston L. Rev., at 1287-1289. -.
P. 4987
I
Page 9
.
Honorable Mike Driscoll - (JM-977)
The commitment of a person to jail for a term of one
year takes on the incidents of a criminal procedure. In
Kolvek v. NavDle, 212 S.E.2d 614 (W. Va. 1975), the defen-
dant was committed to jail for a period of one year when he
was unable to post the required peace bond under a similar
statute. The court held that while the peace bond statute
was not unconstitutional on its face, the magistrate's
application of the statute requiring the defendant to post
the required peace bond violates the equal protection clause
where he is indigent and cannot provide such surety. The
cause was reversed and remanded to the magistrate with
instructions that the magistrate permit the defendant to go
on his own recognizance to keep the peace.
While the posting of a bond to keep the peace where
there has been no alleged violation of the law may be civil
in nature, the commitment for a term of one year in prison
is at the very least quasi-criminal in nature. See Attorney
General Opinion JM-403 (1985). Whether it be characterized
as criminal or civil, it would appear that federal constitu-
tional law requires that counsel be appointed before a
commitment issues ordering the defendant to jail for a term
of one year. We believe the issuance of such a commitment
bears such similarity to a criminal procedure as to require
the justice of the peace to appoint counsel "in the
interests of justice" under article 1.051 of the Code of
Criminal Procedure. If the justice of the peace fails to
reduce the amount of bond to an amount the defendant can
make, or declines to allow the defendant to go on his own
recognizance if he is unable to make bond, counsel is in
place to obtain a writ of habeas corpus in another court.
(A justice court does not have jurisdiction to issue the
writ of habeas corpus under article 11.05 of the Code of
Criminal Procedure.)
In your last question, you inquire whether there are
circumstances other than indigence that would require
appointed counsel. You do not brief this question in the
memorandum of law you have submitted. Consequently, the
question is not in compliance with section 402.043 of the
Government Code (formerly article 4399, V.T.C.S.) and we
have not attempted to answer the same. & Attorney General
Opinion JM-727 (1987).
SUMMARY
Counsel need not be appointed to repre-
sent an indigent defendant charged with a
class C misdemeanor unless "the court con-
cludes that the interests of justice require
p. 4988
Honorable Mike Driscoll - Page 10 (JM-977)
such representation." Since the penalty
cannot exceed a $200 fine in an article 42.15
Code of Criminal Procedure proceeding
providing for the deferral of a fine upon
conviction, our answer to your first question
is dispositive of your third inquiry. While
it is not necessary for the justice court to
appoint an attorney at the initial peace bond
hearing, counsel should be appointed for a
defendant who has failed to give the required
bond before he is committed to jail for a
period of one year in order that
determination may be made as to whether t$
defendant is financially able to post the
J h
required security.
Very truly yo
A;,
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
P. 4989