GERALD C. MANN 

Honorable J. B. Draper, Chief 

Driver's License Division ~' 

Texas Department of Public Safety 

Austin, Texas 

Dear Sir: Opinion No. O-5693 

Re: Whether a defendant in a misdemeanor traffic case could 

legally authorize an officer of 

the police court to appear for 

him when his case is called fop 

trial and enter a plea of guilty 

and use the cash fund deposited 

to apply on the fine assessed by 

the court. 

Your letter of October 20, 1943, requesting the oplnlon 

of this department on the above stated question reads as follows: 

"Pursuant to our telephone conversation 

with Mr. Hea,th, we are placing in writing the 

following: 

I'Some of the larger citfes accept cash 

bonds in lieu of the defendant appearing for 

trial in misdemeanor traffic cases. This bond 

is forfeited when the defendant fails to appear 

at the trial, and no trial or conviction is actually had. 

"We would appreciate having your 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 assessed by the court, 

"If such procedure is possible, please 

suggest a proper form for such receipt and appointment of agent." 

Articles 518, 580, 581 and 782 of Vernon'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 counsel may waive a jury, and the 

punishment may be assessed by the court, either upon 

or without evidence, at the discretion of the court." 

"Art. 580. In all prosecutions for felonies, 

the defendant must be personally present at the trial, 

and he must likewise be present in all cases of misdemeanor when the punishment or" any part thereof is 

Imprisonment in jail. When the record in the appellate 

court shows that the defendant was present at the commencement, OP any portion of the trial, ft shall be 

presumed in the absence of all evidence in the record 

to the contrary that he was present during the whole 

trial." 

"Art. 581* In other misdemeanor cases, the 

defendant may, by consent of the State's attorney, 

appear by counsel, and the trial may proceed without 

his personal presence." 

"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: 

"But notwithstanding this provision it is 

only in the case of finable misdemeanors that the 

plea may be entered by the defendant's counsel. 

Of cow-se, no one may enter the plce for the accused 

without his authority; and when a plea is offered by 

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: 

"TFIe judgment of conviction under the 

plea of guilty entered by 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 provided by our statutory 

law, and any waiver on his part must be eitker 

by himself, or by counsel representing him. 
Honorable J. B. Draper, page 3 o-5693 

In Ex parte Suoer, 175 S.W. 697, the defendant was 

charged with the offense of violating the gaming laws of the 

State and his mother attempted to enter a plea of guilty for 

the defendant. The court held the plea void and said: 

"The Constitution and the Statutes authorize the defendant to appear in person or 

by counsel, either or both, and in finable mlsdemeanors a plea of guilty may be entered through 

his counsel. But this seems to be 8. limitation 

placed upon pleas of guilty; otherwise, the law 

would seem to-require the presence of the defendant in court, and that he enter the plea hlmself. This matter was discussed In the Jones 

case, su g ra, and It is unnecessary to review it 

further. 

In the case of Ex oarte Williamson, 177 S.W. 89, the 

defendant was a boy seventeen years of age charged with the offense of an affray, and his father attempted to enter a plea 

of guilty for his son. The Court held in this case that a 

plea of guilty entered in a justice court by a father forhis 

seventeen year old son, when not authorized by the son, ~8s 

void. This case seems to hold by implication that the son 

could authorize his father to enter a plea of guilty for him. 

However, this exact question was not before the court and was 

not passed upon by it. 

In view of the foregoing statutes and authorities, it 

is~ our opinion that a person charged with the violation of the 

traffic laws of this State, or any other finable misdemeanor, 

could not legally authorize an officer of the police court to 

appear fork him and enter a plea of guilty. It is our further 

opinion that only the defendant himself, or counsel representing him, could legally appear and enter a plea of guilty for 

the defendant. Therefore, it is unnecessary to discuss that 

portion of your question relative to applying the cash bond 

on the fine. 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

AW:EP:wc 

APPROVED NOV 4, 1943 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

By s/Ardell Williams 

Ardell Williams 

Assistant 

Approved Opinion Committee 

By s/BWB Chairman