GERALD C. MANN

Honorable J. B. Draper, Chief Driver's LicenseDivision ~' TexasDepartment of Public Safety Austin, Texas

Dear Sir: OpinionNo. O-5693 Re: Whether a defendant in a misdemeanor traffic case could legally authorizean officer of the police court to appear for himwhen his case is called fop trial and enter a plea of guilty and use the cash fund deposited to apply on the fine assessedby the court.

Your letter of October 20, 1943, requesting the oplnlon of this department on the above statedquestion reads as follows:

"Pursuantto our telephone conversation with Mr. Hea,th,

we are placing inwriting the following:

I'Some of the larger citfes accept cash bonds in lieu of the defendant appearing for trial inmisdemeanor traffic cases. This bond is forfeitedwhen the defendant fails to appear at the trial, and no trial or conviction is actually had.

"Wewould appreciate havingyour opinion as to whether or not ,the defendant could authorize In writing an officer of the Police Court, such as the Clerk or Peace Officer, to appear for him when his case is called for trial and enter a plea of guilty using the cash deposited to apply on the fine assessedby the court,
"If such procedure is possible,please suggesta proper form for such receipt and appointment of agent."
Articles 518, 580, 581 and 782 ofVernon's Annotated Code of Criminal Procedure,read as follows:Honorable J, B. Draper, page 2 o-5693

"Art. 518. A plea of guilty in a misdemeanor case may be made either by the defendant or his counsel in open court. In such case, the defendant or his counselmay waive a jury,and the punishmentmay be assessedby the court, eitherupon orwithout evidence,at the discretion of the court."

"Art. 580. In all prosecutions for felonies, the defendant must be personallypresent at the trial, and he must likewisebe present in all cases ofmisdemeanorwhen the punishment or" any part thereof is Imprisonment in jail. When the record in the appellate court shows that the defendantwas present at the commencement, OP any portion of the trial, ft shallbe presumed in the absence of all evidence in the record to the contrary that he was presentduring the whole trial."

"Art. 581* In othermisdemeanor cases, the defendantmay, by consent of the State's attorney, appear by counsel, and the trial may proceedwithout his personalpresence."

"Art. 7820 The judgment in a misdemeanor case may be rendered in the absence of the defendant," Referring to Article 518, supra, it is stated in Texas Jurisprudence,Vol, 12, pO 633:

"Butnotwithstanding this provision it is only in the case of finablemisdemeanors that the plea may be enteredby the defendant's counsel. Of cow-se,no onemay enter the plce for the accused without his authority; and when a plea is offeredby someone other than the defendant it must be shown that the defendant authorized It to be entered."
The case Ex oarte Jones, 80 S.W. 995, among other things, holds:

"TFIejudgment of convictionunder the plea of guilty enteredby constable Is void and without authority of law. Whenever a party accused of crime is arrested, it is the duty of the officer to take him before the proper court, to be dealt with as providedby our statutory law, and any waiver on his part must be eitker by himself, or by counselrepresenting him.Honorable J. B. Draper, page 3 o-5693

In Ex parte Suoer, 175 S.W. 697, the defendantwas chargedwith the offense of violating the gaming laws of the State and hismother attempted to enter a plea of guilty for the defendant. The court held the plea void and said:

"The Constitutionand the Statutes authorize the defendant to appear in person or by counsel, either or both, and in finablemlsdemeanors a plea of guilty may be entered through his counsel. But this seems tobe 8.limitation placedupon pleas of guilty; otherwise, the law would seem to-requirethe presence of the defendant in court, and that he enter the plea hlmself. This matter was discussed In the Jones case, g su ra, and It isunnecessary to review it further.

In the case of Ex oarteWilliamson, 177 S.W. 89, the defendantwas a boy seventeenyears of age chargedwith the offense of an affray, and his fatherattempted to enter a plea of guilty for his son. The Court held in this case that a plea of guilty entered in a justice courtby a father forhis seventeenyear old son,when not authorizedby the son,~8s void. This case seems to hold by implicationthat the son could authorize his father to enter a plea of guilty for him. However, this exactquestionwas not before the court and was not passedupon by it.

In view of the foregoing statutesand authorities, it is~ our opinion that a person chargedwith the violation of the traffic laws of this State, or any other finablemisdemeanor, couldnot legally authorize an officer of the police court to appear fork

him and entera plea of guilty. It is our further opinion that only the defendant himself, or counselrepresenting him, could legallyappear and enter a plea of guilty for the defendant. Therefore, it isunnecessary to discuss that portion of your questionrelative to applying the cash bond on the fine.

Yours very truly
ATTORNEY GENERAL OF TEXAS

AW:EP:wc
APPROVEDNOV 4, 1943 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL By s/ArdellWilliams ArdellWilliams Assistant

Approved Opinion Committee By s/BWB Chairman