Honorable E. L. Max Hamilton 

County Attorney 

Terry County 

Brownfield, Texas 

Opinion No. C-590 

Re: Whether a judgment of 

conviction in a misdemeanor case, punishable by imprisonment 

and the defendant was 

too poor to employ 

counsel ana the court 

failed to appoint 

counsel to represent 

- 

him, is valid or void, 

Dear Mr. Hamilton: and related questions. 

Your letter requesting an opinion of this office 

reads substantially as follows: 

Pursuant to Article 26.04 of the Code 

of Criminal Procedure, it is my opinion 

that the provisions of said Article require that the County Court MUST appoint 

counsel for all misdemeanor cases punishable by possible imprisonment when the 

defendant cannot afford counsel. would 

you please give your opinion concerning 

the following cases: 

What would be the effect of a 

juc&ent of conviction against a aefendant in such a misdemeanor ease without 

having counsel appointed? 

2. What if a defendant is able to 

afford counsel and refuses to a0 so? 

Must the Court still appoint such counsel for hiti? 

3. Are not the rules applicable to 

District Courts for the State of Texas 

in regarding appointment of counsel applicable to the County Courts in cases 

of misdemeanors carrying a possible jail 

sentence? 

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Honorable E. L. Max Hamilton, Page 2, (c-598) 

Article 26.04, Vernon's Code of Criminal Procedure, 

provides: 

"(a) Whenever the court determines at 

an arraignment or at any time prior to arraignment that an accused charged with a 

felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, 

the court shall appoint one or more prac; 

ticing attorneys to defend him. In making 

the determination, the court shall require 

the accused to file an affidavit, and may 

call witnesses and hear any relevant testimony or other evidence. 

"(b) The appointed counsel Is 

to ten days to prepare for trial, 

waive the time by written notice9 

by the counsel and the accused." 

entitled 

but may 

signed 

In answer to~your~first_questfon, by virtue of the 

express provisions of Article 2o,.O4 of the Code of Criminal 

Procedure, it is the opinion of thls office, unless waived 

by the defendan%, that the new Code of Criminal Procedure 

will require the appointment of coumel for indigent defendants in misdemeanor cases punishable by imprisonment. 

The failure of the trial court to appoint counsel for an 

indigent defendant charged with a felony or a misdemeanor 

nunlshable bv imnrisonment will render the conviction of 

the defendant void, ?St?Donald v. Moores 

1965); 

353 B.2d 106 (C. 

A. Gideon v. . 335 (1963); %rnrveg v. Missi~- 

In answer to your second question, we have been 

unable to find any provision fn the new Code for appointment of counsel for a defendant who is not indigent. 

Neither has the United States Supreme Court held that a 

non-indigent defendant is entitled to assigned counsel. 

Therefore, it is the opinion of this office that where the 

trial court has advised a defendant of his right to the assistance of counsel and has made a determination that the 

defendant is not too poor to employ counsel, the defendant 

should be given an opportunity to contact an attorney If he 

so desires. If the defendant still does not desire counsel, then a writ&n record of the determination that the defendant is not indigent should be ffled among the papers of 

the cause along with the advice of the court and the defendant's waiver of counsel. 

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Honorable E. L. Max Hamilton, Page 3, (c-598) 

In answer to your third question, It is the opinion 

of this office that the rules now applicable to district 

courts of the State of Texas, in regard to the appointment 

of counsel, are applicable to county courts in cases of misdemeanors carrying a possible jail sentence. Article 26.04. 

SUMMARY 

A judgment of conviction in a misdemeanor 

case punishable by Imprisonment is void where 

the defendant Is too poor to employ counsel 

and the trial court has failed to appoint counsel to represent him, unless counsel has been 

waived by the defendant. If the defendant is 

able to afford counsel, the court is not required to appofnt counsel for him. The rules 

applicable to district courts, In regard to 

the appointment of counsel, are applicable to 

county courts In ca3es of misdemeanors, carrying; a possible jail sentence. 

Yours very truly, 

WAGGONER CARR 

Attorney General of Texas 

Asslstant'Attorney General 

DHC/dt 

APPROVED: 

OPIRION COMMITTEE: 

W..V. Geppert, Chairman 

Robert E. Owen 

Howard M. Fender 

Lonny F. Zwiener 

John Banks 

APPROVED FOR TIIE ATTORmY GENERAL 

BY T. B. Wriqnt 

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