November 8, 1988

Honorable Mike Driscoll Harris County Attorney 1001 Preston, Suite 634 Houston, Texas 77002 Opinion No. JM-977

Re: Appointment of counsel for indigent.defendants under article 1.051(c), Texas Code of Criminal Procedure, and related questions (RQ-1379)

DearMr. Driscoll':

You state that'the questions you askhave been prompted by inquiries from justices ofthe peace inHarris 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 ofvour questions will be limited to cases inthe iustice court. You ask:

1. Inwhat 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 adefendant, who is committed to jail and applies for adeferred payment plan to secure release from jail, isentitled tohave an attorney appointed forhim?

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:

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(a)A defendant ina criminal matter is entitled tobe represented by counsel in an adversarial judicial proceeding. The right tobe represented by counsel includes the right to consult in private with counsel sufficiently in advance of aproceeding to allow adequate preparation forthe proceeding.

(b)For the purposes of this article and Articles 26.04 and 26.05 of this code, 'indigent' means aperson who isnot financially able to employ counsel.

(c)An indiaent defendant isentitled to have an attornev aDDointed to revresent him inanv 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 appointed 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 inthe 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 ismade directly from the trial ,courtor ifapetition for discretionary 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 toyour first and third questions have been addressed by numerous opinions of federal and state courts aswell as opinions of this office. -.,

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InAraersinaer Ha ljg

Suprem:' CouFt 407U.S. 25 (1972) United States held that the right Lf the
an indigent defendant inacriminal trial to the assistance of counsel guaranteed by the SixthAmendment andmade applicable to the states by the Fourteenth Amendment inGideon v. Wainwriaht 372 U.S. 335 (1963), is classificaiion of the offense not limited by the
orbywhether ornota jury trial is required. The court concluded that an accused may not be deDrived ofhis libertv as the result of anv criminal prosecution, whether felonv ormisdemeanor, inwhich he was denied the assistance of counsel. InAraersinaer the court noted that "everv iudaewill knowwhen the trial starts that
no imDrisonment mav be imDosed" and "the run ofmisdemeanors will not be affected bv todav's rulinq." Arsinaer 407 U.S. at 40. (Emphasisadded.)

InAttorney 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 amisdemeanor in justice court since the "justice court lacks jurisdiction todetermine finally any criminal action inwhich the punishment prescribed by lawmay be a fine exceeding $200 ormay involve imprisonment for any length of time." Attorney General Opinion JM-312, at 3 (1985).

TheUnited States Supreme Court held that a defendant may not be imprisoned because he istoopoor topay his fine inTate 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 inahabeas corpus proceedingunder these circumstances. Ex Darte Miniares, 582 S.W.2d 105 (Tex.Crim. App. 1978). This raises the question ofwhether counsel should be appointed to represent an indigent defendant accused of aclass C misdemeanor in justice court to avert the possibility that the defendant who istoo poor topay his finebe imprisoned in violation of Tate v. Short. Neither Araersinaer nor state statute require that counsel be appointed inclass Cmisdemeanors to insure that therewill not be instances when authorities may illegally restrain adefendant who is unable to pay his fine. We believe that this isthe very type of situation where the appropriate remedy is thewrit ofhabeas corpus. &S Code Crim. Proc. art. 11.01 et sea. InAttorney General Opinion JM-403 (1985), itwas noted that article 26.05 of the Code of Criminal Procedure provides for payment of counsel appointed to represent indigent defendants inhabeas corpus proceedings.

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The Legislature in S.B. 1109 (nowarticle 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 isentitled tohave an attorney appointed in "anv other criminal DrOCeedinc if the court concludes that the interests of iustice reo-uirereDresentation." (Emphasis added.) The legislature did not set any guidelines for acourt todetermine when counsel is to be appointed in "the interests of'justice." The legislature undoubtedly concluded that this isamatter that necessarily requires resolution on acase-by-case basis. Since section (c)provides that this authority isgiven the court in "any other criminal proceeding'Ithe justice court would appear to have discretion to appoint counsel foran indigent defendant inaclass Cmisdemeanor casewhen the justice of the peace determines that the interest of justice requires such appointment.1

Thematter of appointment of counsel for indigent defendants incivil cases was reviewed inAttorney General Opinion JM-403 (1985). In Attorney General Opinion JM-403 itwas stated:

This right to have the state provide counsel extends to every case inwhich 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 isstated, **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 tomake partial payment of court-appointed attorney fees: removing themaximum limit the Court can order for the payment ofdoctors and other expert witnesses: and removing the appointed counsel. minimum the court can pay

Bill Analysis, Tex. S.B. 1108, 70th Leg. (1987).

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.- Gaule, 387 U.S. 1, 41 (1967); pidcwav 3-, 720 F.2d 1409, 1413 (5thCir. 1983:;

~~~~ Attorney General Opinion JM-176

. The Fifth Circuit inpidcway applied this rule to an accused fatherwhowas 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 acivil suit, has some of the incidents of a trial for crime, and isquasi-criminal innature.' parte Cardwell, 416 S.W.2d 382, 384 (Te? 1967)'(citing Exnarte Davis, 344 S.W.2d 153 (Tex. 1961)). Consequently, proceedings in contempt cases should conform asnearly as possible to those in criminal cases. & parte Bvram, 662 S.W.2d 147 (Tex.App. -Fort Worth 1983, nowrit); Deramus v. Thornton, 333 S.W.Zd 824, 829 (Tex.1960): Ex narte Stanford, 557 S.W.2d 346, 348 (Tex.Civ.App.

-Houston [lstDist.] 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 themere labels of 'civil' or 'criminal' should not control due process considerations.

Attorney General Opinion JM-403, at l-2 (1985).

InAttorney General Opinion JM-312 (1985), itwas noted that then article 1917,V.T.C.S. (nowsection 24.016 of the Government Code), provides that adistrict judgemay appoint counsel to represent any party who istoo poor to employ counsel. Similarly then article 1958,V.T.C.S. (nowsection 26.049 of the Government Code), grants the same discretion to county judges. However, itwas pointed out that there is
no corollary statute thatwould enable justices of the peace to appoint counsel incivil cases. It was further noted that the provisions relative todistrict and county judges
were adopted aspart of the civil statutes and are not

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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 Courtwould nevertheless require appointment of counsel ina civil casepending 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 acivil proceeding in justice court which might result inthe losing party being deprived ofhis personal liberty.

Inyour first question you ask inwhat cases the court should appoint counsel to represent indigent defendants. Since imprisonment isnot adirect 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 ispermitted topay his assessed fines byway of adeferred payment plan, instead of being confined fordefault inpaying 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). Inyour scenario you assume that such adeferral procedure may be the only alternative to confinement in jail for adefendant who is unable to pay his fine. Article 42.15 of the Code of Criminal Procedure provides for a formofprobation available to defendants convicted of offenses with a maximum punishment of a finenot 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 isdetermined that the defendant has not complied with the requirements imposed under article 42.15. Since the penalty isa fine, Tatev. Short, prohibits the imprisonment of adefendant who istoopoor to pay his fine. Further,
our conclusion toyour first question that the justice court isnot 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 tobe dispositive of this inquiry. -.

-.

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You next askwhether appointment of counsel for indigent defendants is appropriate in peace bond hearings. Article 7.03 of the Code of Criminal Procedure authorizes a magistrate to require aperson to make abond conditioned that hewill keep the peace toward the person themagistrate has found the accused has threatened. If itappears to the magistrate from the evidence presented at thehearing that the accused has committed an offense, article 7.13 of the Code of Criminal Procedure provides that he shall be tried forthe offense. Apeace bond hearing is usually in the justice courts and is civil innature 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 inTexas, 20Houston L.Rev. 1279, at 1287 (1983).2 InAttorney General Opinion O-6669 (1945), it was

2. The Reamey article addresses the widespread use of the peace bond procedure inspousal abuse cases.

Peace bonds have often been issued in
cases of familyviolence as an inexpensive and readily available deterrent.
. . .

As apractical matter, any remedy in the field of spousal abuse must be available quickly and inexpensively. Its availability must bewidely known, and itmust address the needs of the spouse requiring abuse protection. It is just this availability thathas metamorphosed the peace bond into a common protective device for spousal assault.

Because peace bonds areusually administered by justice courts, they are easily accessible. The geographical distribution of such courts makes them themost convenient forum for judicial intervention. In addition, the informalitv associated with the iustice court encouraaes pro se filina and prosecution ofnetitions withminimal court costs. The resulting frequency of peace bonds as aviolence control device insures that **victims** will know of the existence of this remedy andwill seek itout intime of need.
. . . (Footnote Continued)

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noted that,the only remedy the statehas against one who breaches apeace bond isa suit to recover on the bond.

The fact that aperson may be required tomake a bond to keep the peace would not appear to trigger the necessity for the appointment of counsel. Ifthiswere so every time
an appearance bond is set inaclass Cmisdemeanor, counsel would have tobe 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 inAraersinaer nor ,the state statutes require such appointment. The problem in the peace bond procedure ariseswhen 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 Procedure provides:

If the defendant fail togive bond, he shall be committed to jail foroneyear 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 adeterrent. 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 thevictim and the abuser inthe procedure thatmakes 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. Therefore, one cannot underestimate the effectiveness of such orders asnractical and useful tools in deterrina domestic violence, especially when divorce is not a desirable alternative. (Footnotes intext omitted and emphasis added).

20Houston L.Rev., at 1287-1289.

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. Honorable Mike Driscoll - **Page 9**  (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 defendantwas committed to jail foraperiod of oneyearwhen he
was unable topost 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
causewas reversed and remanded to the magistrate with instructions that themagistrate permit the defendant to go onhis own recognizance tokeep thepeace.
While the posting of a bond tokeep the peace where there has been no alleged violation of the lawmay be civil innature, the commitment fora term of oneyear in prison isat thevery least quasi-criminal innature. See Attorney General Opinion JM-403 (1985). Whether itbe characterized
as criminal or civil, itwould appear that federal constitutional law requires that counsel be appointed before a commitment issues ordering the defendant to jail fora term of oneyear. We believe the issuance of such a commitment bears such similarity to acriminal 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 ofbond to an amount the defendant can make, ordeclines to allow the defendant to go onhis own recognizance ifhe isunable tomake bond, counsel is in place to obtain a writ ofhabeas corpus inanother court. (Ajustice court does not have jurisdiction to issue the writ ofhabeas corpus under article 11.05 of the Code of Criminal Procedure.)

Inyour last question, you inquire whether there are circumstances other than indigence that would require appointed counsel. You donot brief this question in the memorandum of lawyou have submitted. Consequently, the question isnot incompliance 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 represent an indigent defendant charged with a class C misdemeanor unless "the court concludes that the interests of justice require

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such representation." Since the penalty cannot exceed a $200 fine inan article 42.15 Code of Criminal Procedure proceeding providing for the deferral of a fine upon conviction, our answer toyour first question isdispositive ofyour third inquiry. While it isnot necessary for the justice court to appoint an attorney at the initial peace bond hearing, counsel should be appointed for a defendant who has failed togive the required bond before he is committed to jail for a period of one year in order that determination may bemade as towhether t$ defendant is financially able to post the required security.

Very truly yo 

# J h

A;, JIM MATTOX Attorney General of Texas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Tom **G. Davis**  Assistant Attorney General

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