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 defendantmust 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 questionswhich read as follows:



### “(1)

“(2)



### “(!I)

“(4)

“(5)

“(6) Must a defendantbe present

enter; a plea of guilty to a punishableby a fine and/or In person tom misdemeanor jail time? Must a defendantbe present in person to enter a plea of gulltyto a misdemeanor punishableby fine and/or jail time when the only punishmentassessed is a,fEne? If defendant'spresence 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 defendantgiving~theholder thereof authority to enter such plea? If defendanttspresence 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 questionNo. l or No. 2 and he is not present, is'the judgmentvoid.or only voidable?"

-2638-HonorableClint Starr, Page 2 (C- 549)

In responseto the first two questionsthe defendant must be presentat the time of the 'trial In a misdemeanorcase In which the punishmentor any part thereof can Include impr&, onment in jail without regard to what punishmentis actually assessed. Article 580, Vernon's Code of Criminal Procedure, which controls in this matter, states:

"In all prosecutionsfor felonies,the defendant must be personallypresent at the trial, and he must likewisebe present In all cases. of misdemeanor

when the punishmentor any part thereof is imprisonment In jail. When the record in the appellatecourt shows that the defendantwas 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 coveredby Article 33.03 of the new Code of CrlminU Procedure, which supplantspresentArticle 580. The only changewill be the provision that when the defendantvoluntarily~absentshlmself after pleading to the indictmentor 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 interpretingthis statute Is Pad1110 v. State, 264 S.W.2d 715 (Tex.Crlm.l&k), where the defendant's attorney (in the defendant'sabsence) entered a plea of guilty to the charge~ofuniawfulpossessionof intoxicatingliquor and the~courtimposeda penalty of 60 days in jail. When an effort ; was made to use this convictionfor enhancementthe Court of CriminalAppeals held:

"It has.been held relatlve.to~said article that the failure of the appellantto appear and plead in a misdemeanorca8e where the punishment can be Imprisonmentin jail renders the trial void." See Washingtonv. State, 52 Tex.Crim. 323, 106 S.W. 361; Stewartv. Stat , mx.Crim. 39, 127 S.W;2d 903; Hendersonv. g;:eh1137 TexFeCrtm. 18, 127 S.W.2d 902: Cain v. State, 15 'I'exz

See also annotationsunder Article 560 Code of Criminal Proledure,In Volume 12, Texas Mgest, CrimiialLaw, 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 misdemeanorcases, the defendant may,..by

consent of the State's attorney,appear by counsel, and the trial may proceedwithout 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 defendantgiving the holder thereof authority to enter such plea. Such appearance Is limitedby the statute Itself to appearance by counsel. Present Article 581 has been re-enacted in~the new Code of Criminal Procedureverbatim 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 Procedureprovides that when the defendant voluntarilyabsents himself after pleading to the indictment or informationthe 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 judgmentvoid where It is rendered pursuant to a plea of guilty entered in the absence of the defendantwhere.thepunishment can result in the assessment of jail time. The few cases dealing with voidable judgmentswhere the defendantwas absent .on a hearing for motion for new trial will be eliminatedby the special provisionadded to Article 33.03 of the new Code of Criminal Procedure,

which specificallyexempts 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'sreceiving 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 collateralattack. 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-HonorableClint Starr, @age 4 (C- 549)

the judgmentrenderedthereinwill be subject to attack, as being void. Yours very truly, WAGGONERCARR AttorneyGeneral of Texas 

# &-M&

THOMAS W. MACK AssistantAttorney 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

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