HonorableE. L. Max Hamilton

County Attorney Terry County Brownfield,Texas Opinion No. C-590
Re: Whether a judgmentof convictionin a misdemeanor case, punishable by imprisonment and the defendantwas too poor to employ counselana the court failed to appoint counsel to represent

- him, is valid or void, Dear Mr. Hamilton: and related questions.

Your letter requestingan 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 provisionsof said Article require that the County Court MUST appoint counsel for all misdemeanorcases punishable by possible imprisonment when the defendantcannot afford counsel. would you please give your opinion concerning the followingcases: What would be the effect of a juc&ent of convictionagainst a aefendant in such a misdemeanorease without having counselappointed? 2. What if a defendant is able to afford counseland refuses to a0 so? Must the Court still appoint such counsel for hiti? 3. Are not the rules applicableto District Courts for the State of Texas in regardingappointmentof counselapplicable to the County Courts in cases of misdemeanorscarryinga possible jail sentence?
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HonorableE. L. Max Hamilton,Page 2, (c-598)

Article 26.04, Vernon's Code of CriminalProcedure, provides: "(a) Whenever the court determinesat

an arraignmentor at any time prior to arraignment that an accused chargedwith a felony or a misdemeanorpunishableby imprisonmentis too poor to employ counsel, the court shall appoint one or more prac; ticing attorneysto defend him. In making the determination, the court shall require the accused to file an affidavit,and may call witnessesand hear any relevant testimony or other evidence. "(b) The appointedcounsel Is to ten days to prepare for trial, waive the time by written notice9 by the counseland the accused." entitled but may signed

In answer to~your~first_questfon, by virtue of the expressprovisionsof 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 CriminalProcedure will require the appointmentof coumel for indigentdefendants in misdemeanorcases punishableby imprisonment. The failure of the trial court to appoint counsel for an indigentdefendantchargedwith a felony or a misdemeanor nunlshablebv imnrisonment will render the convictionof the defendantvoid, ?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 defendantwho 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 defendantof his right to the assistanceof counseland has made a determinationthat the defendant is not too poor to employ counsel, the defendant should be given an opportunityto contact an attorney If he so desires. If the defendantstill does not desire counsel, then a writ&n record of the determinationthat the defendant is not indigent shouldbe ffled among the papers of the cause along with the advice of the court and the defendant'swaiver 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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