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) 

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 proceeding. 

(b) For the purposes of this article and 

Articles 26.04 and 26.05 of this code, 

'indigent' means a person who is not financially 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 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 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 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 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 

Suprem:' CouFt 

407 U.S. 25 (1972) 

United States held that the right Lf 

the 

an 

indigent defendant in a criminal trial to the assistance of 

counsel guaranteed by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment in Gideon v. 

Wainwriaht 372 U.S. 335 (1963), is 

classificaiion of the offense 

not limited by the 

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 proceeding 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 reDresentation." (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 'I the 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 

appointed counsel. 

minimum the court can pay 

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 available 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 indigent 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 administered 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 Procedure 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. Therefore, one cannot underestimate the effectiveness 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 

. 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 defendant 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 constitutional 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 represent an indigent defendant charged with a 

class C misdemeanor unless "the court concludes 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 

required security. 

Very truly yo J A;, h 

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