Case Information
*1 The Attorney General of Texas &ril 26, 1985 JIM MAlTOX
Attorney General
Supreme Court Bullding Opinion No. m-312 Eonorable Richard 6. I4orales P. 0. Box 1254a Webb County Attorncg *ustIn, lx. 78711. 254a 1104 Victoria RA: Whether a court-appointed 51214752501 Laredo, Texas 7806.0 attorney muat be provided for au Telex 51wS74-122.7 indigent in every misdemeanor TelmDpler 5121475aaS
CAAe 714 Jackron. Suit. 700 Dear Mr. Horalaa: oallas. TX. 752024506
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 about misdemeanor cases vithln El Paso, lx. 7980527S3 jurisdiction of jwtlce Such courts lack jurisdiction over SlY533-3uu 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~. The consent decree in queation deals with the appointment of 805 Broadway. Suite 312 Lubbock, TX. 78401-2479 attorneys to reprment 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 case in which an attorney must be appointed; Le.. vh,ether an attorney must be provided for an indigent 009 N. Tenth. Suite B 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 opinions concerning specific matters vhich are actually In litigation 200 Main Ptua. Suite 400 or under the retalmed or continuing jurisdiction of the courts. San Antonio, TX. 752052797 51212254191 reveals in this case the court has retained twsure compliance vith its decree. Accordingly, although soma of one following discussion deals with issues related An Egu4l Opportunity/ the provisions of the consent decree, we address only the general Alfirmative Action Employer state 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 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 *2 Ronoreble Richard G. Morales - Page 2 (JM-312)
has the right to the effecttve assistance counsel. See Gideon v. 372 U.S. 335 (1963) ; General O-ion C-656
;;;J;ght, to have the state provide counsel to persons who The right 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). the appointment ,;ji-counsel is re- Moreover, quired at every-stage of a criminal proceeding
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 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 for application appeal to the stste’s highest court or 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 is too poor to employ Punishable by imr;isonment counsel. the co& shall aoooint one or more attornlzys defend-him. practi& 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.
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 United States Constitution require that the state provide an indigent with an attorney in all misdemeanor cases. Including those mis- Some of these demeanors within the jurisdiction justice imprisonment. We conclude that misdemeanors do not involve potential the state is not required 11~’ the Code of Criminal Procedure or by the to provide counsel to indigents accused of crimes or othervise subjec.t to court proceedings when the possible for the crime ,>‘c proceeding does not involve a loss of personal liberty.
Article 4.11 of Code of Criminal Procedure provides “[j]ustices the peace shall have jurisdiction in criminal cases *3 Honorable Richard G. Morales -’ Page 3 (Jn-312)
there fine to be impowd by law may uot exceed tvo hundred dollars.” Justice courts lsck 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); General Opinion C-718 (1966); see also Tex. Code Grim. Proc. art. 16.01; Bart v. State, 15 Tex. Ct. AK 2O2(1883); General Opinion C-654 (1966). Because a state- appointed attorney for indigents Is constitutionally required at every stage of a criminal proceetljlng 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 This question, houever, deals with the time, during the criminal procedure, at which indigent. an attorney must first be ilppointed You ask in the instant case deals with this issue. 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 cases, is beyond the scope of your recluest. We conclude only that neither 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,
Simil~arly. article 1958. V.‘T.C.S.. grants the same discretion county judges. There is no corollary statute 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.), *4 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 possible of a loss do not involve of liberty.
, Vev/zj& ‘IA u JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General
DAVID R. RICEARDS
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Ganeral
RICX GILPIN
Chairman. Opinion Comittee
Prepared by Jennifer Riggs
Assistant General
APPROVED:
OPINION COl44ITTEE
Rick Gllpin. Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim noellinger
Jennifer Riggs
Nancy Sutton