0FTEXL%@ 

AKismN 11. 'gexas 

November 23, 1965 

Honorable Clint 

County Attorney 

Mldland County 

Mldland, Texas 

Dear Sir: 

Starr Opinion No. C-549 

Re: Whether a defendant must 

be present in person to 

enter a plea of guilty to 

a misdemeanor, punishable 

by a ffine and/or jail time, 

and related questions. 

Your recent letter requested the opinion of this office 

on six questions which read as follows: 

“(1) 

“(2) 

“(!I) 

“(4) 

“(5) 

“(6) 

Must a defendant be present 

enter; a plea of guilty to a 

punishable by a fine and/or 

In person tom 

misdemeanor 

jail time? 

Must a defendant be present in person to 

enter a plea of gulltyto a misdemeanor 

punishable by fine and/or jail time when 

the only punishment assessed is a,fEne? 

If defendant's presence is not required 

in either question No. 1 or No. 2, may 

anyone other than an attorney enter his 

plea of guilty for him? 

If his presence is not required, may his 

plea of guilty be entered for him by'anyone holding a power of attorney executed 

by the defendant giving~the holder thereof 

authority to enter such plea? 

If defendantts presence is required in 

either question No. 1 or No. 2, may this 

right be waived by.the defendant and if 

so, how? 

If defendant's presence is required in 

either question No. l or No. 2 and he is 

not present, is'the judgment void.or only 

voidable?" 

-2638- 
Honorable Clint Starr, Page 2 (C- 549) 

In response to the first two questions the defendant 

must be present at the time of the 'trial In a misdemeanor case 

In which the punishment or any part thereof can Include impr&, 

onment in jail without regard to what punishment is actually 

assessed. Article 580, Vernon's Code of Criminal Procedure, 

which controls in this matter, states: 

"In all prosecutions for felonies, the defendant must be personally present at the trial, 

and he must likewise be present In all cases. of 

misdemeanor when the punishment or any part thereof is imprisonment In jail. When the record in 

the appellate court shows that the defendant was 

present at the commencement, or any portion of 

the trial, it shall be presumed in the absence of 

all evidence In the record to the contrary that 

he was present during the whole trial." 

After January 1, 1966, the same requirement will be 

covered by Article 33.03 of the new Code of CrlminU Procedure, 

which supplants present Article 580. The only change will be 

the provision that when the defendant voluntarily~absents hlmself after pleading to the indictment or information, the trial 

may proceed to its conclusion; and that the presence of the defendant shall not be required at the hearing on the motion for 

new trial in anymisdemeanor case. 

The leading case interpreting this statute Is Pad1110 

v. State, 264 S.W.2d 715 (Tex.Crlm. l&k), where the defendant's 

attorney (in the defendant's absence) entered a plea of guilty 

to the charge~of uniawful possession of intoxicating liquor and 

the~court imposed a penalty of 60 days in jail. When an effort 

was made to use this conviction for enhancement the Court of 

Criminal Appeals held: 

"It has.been held relatlve.to~said article 

that the failure of the appellant to appear and 

plead in a misdemeanor ca8e where the punishment 

can be Imprisonment in jail renders the trial 

void." 

See Washington v. State, 52 Tex.Crim. 323, 106 S.W. 361; 

Stewart v. Stat , mx.Crim. 39, 127 S.W;2d 903; Henderson v. 

g;:eh1137 TexFeCrtm. 18, 127 S.W.2d 902: Cain v. State, 15 'I'ex

See also annotations under Article 560 Code of Criminal Proledure, In Volume 12, Texas Mgest, Crimiial Law, Key 636 

(No. l), Page 286. 

-2639- 
Honorable Clint Starr, page .3 -fC-.p~g),; : 

With regard to',:the third and fourth questlons:we would 

point out that the only time the,defendant is authorized to 

appear and plead "in absentia" is set forth In Article 581, 

Vernon's Code of ~CrIminal Procedure: 

"In other misdemeanor cases, the defendant 

may,..by consent of the State's attorney, appear 

by counsel, and the trial may proceed without his 

personal presence." 

ItIs ,therefore the opinion of this office that no one 

other than an attorney may appear and plead for a defendant even 

though such person; might hold's power of attorney executed by the 

defendant giving the holder thereof authority to enter such plea. 

Such appearance Is limited by the statute Itself to appearance 

by counsel. Present Article 581 has been re-enacted in~the new 

Code of Criminal Procedure verbatim as Article 33.04. 

In answer to your fifth question, there is no method of 

waiver that we are~able to find. However, Article 33.03 of the 

new Code of Criminal Procedure provides that when the defendant 

voluntarily absents himself after pleading to the indictment or 

information the trial may proceed to Its conclusion. ThI.s.ob~- 

vlously serves to prevent a man from invalidating his trial by 

walking% out inithe middle of it. 

The Padillo case, supra; Is authority for holding the 

judgment void where It is rendered pursuant to a plea of guilty 

entered in the absence of the defendant where.the punishment 

can result in the assessment of jail time. The few cases dealing 

with voidable judgments where the defendant was absent .on a hearing for motion for new trial will be eliminated by the special 

provision added to Article 33.03 of the new Code of Criminal 

Procedure, which specifically exempts the defendant from having 

to be present,,on .the motion for new trial In any misdemeanor 

case. 

SUMMARY 

The appearance of a defendant on a plea ' 

of guilty, is mandatory any time the punishment for the crime with which such defendant 

Is charged can result in defendant's receiving 

a jail sentence. If the defendant In such a 

case does not personally appear the judgment 

rendered against him is void and is subject 

to collateral attack. In those cases in which 

defendant is not required to be personally 

present, he may appear by and through an attor- -. 

ney at law. If this procedure is not followed 

-2640- 
Honorable Clint Starr, @age 4 (C- 549) 

the judgment rendered therein will be subject 

to attack, as being void. 

Yours very truly, 

WAGGONERCARR 

Attorney General of Texas 

&-M& 

THOMAS W. MACK 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

W. 0. Shultz, Chairman 

Sam L. ~Kelley 

tinny P. Zwlener 

Howard M. Fender 

APPROVED FOR THE ATTO& GENERAL 

BY: T. B. Wright 

-2641-