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                     November 23, 1965


Honorable Clint Starr                Opinion No. C-549
County Attorney
Mldland County                       Re: Whether a defendant must
Mldland, Texas                           be present in person to
                                         enter a plea of guilty to
                                         a misdemeanor,punishable
                                         by a ffineand/or jail time,
Dear Sir:                                and related questions.
       Your recent letter requested the opinion of this office
on six questions which read as follows:
            “(1)    Must a defendant be present In person tom
                    enter; a plea of guilty to a misdemeanor
                    punishable by a fine and/or jail time?
            “(2)    Must a defendant be present in person to
                    enter a plea of gulltyto a misdemeanor
                    punishable by fine and/or jail time when
                    the only punishment assessed is a,fEne?
            “(!I)   If defendant'spresence is not required
                    in either question No. 1 or No. 2, may
                    anyone other than an attorney enter his
                    plea of guilty for him?
            “(4) If his presence is not required, may his
                 plea of guilty be entered for him by'any-
                 one holding a power of attorney executed
                 by the defendant giving~the holder thereof
                 authority to enter such plea?
            “(5) If defendanttspresence is required in
                 either question No. 1 or No. 2, may this
                 right be waived by.the defendant and if
                 so, how?
            “(6)    If defendant'spresence is required in
                    either question No. l or No. 2 and he is
                    not present, is'the judgment void.or only
                    voidable?"

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Honorable Clint Starr, Page 2 (C- 549)


       In response to the first two questions the defendant
must be present at the time of the 'trialIn a misdemeanorcase
In which the punishmentor any part thereof can Include impr&,
onment in jail without regard to what punishmentis actually
assessed. Article 580, Vernon's Code of Criminal Procedure,
which controls in this matter, states:
           "In all prosecutionsfor felonies, the de-
      fendant must be personallypresent at the trial,
      and he must likewise be present In all cases.of
      misdemeanorwhen the punishmentor any part there-
      of is imprisonmentIn jail. When the record in
      the appellate court shows that the defendant was
      present at the commencement,or any portion of
      the trial, it shall be presumed in the absence of
      all evidence In the record to the contrary that
      he was present during the whole trial."
        After January 1, 1966, the same requirementwill be
covered by Article 33.03 of the new Code of CrlminU Procedure,
which supplantspresent Article 580. The only change will be
the provision  that when the defendant voluntarily~absentshlm-
self after pleading to the indictmentor information,the trial
may proceed to its conclusion;and that the presence of the de-
fendant shall not be required at the hearing on the motion for
new trial in anymisdemeanor case.
       The leading case interpretingthis statute Is Pad1110
v. State, 264 S.W.2d 715 (Tex.Crlm.l&k), where the defendant's
attorney (in the defendant'sabsence) entered a plea of guilty
to the charge~ofuniawful possessionof intoxicatingliquor and
the~courtimposed a penalty of 60 days in jail. When an effort ;
was made to use this convictionfor enhancementthe Court of
Criminal Appeals held:
            "It has.been held relatlve.to~saidarticle
       that the failure of the appellant to appear and
       plead in a misdemeanorca8e where the punishment
       can be Imprisonmentin jail renders the trial
       void."
       See Washington v. State, 52 Tex.Crim. 323, 106 S.W. 361;
Stewart v. Stat , mx.Crim.      39, 127 S.W;2d 903; Hendersonv.
g;:eh1137 TexFeCrtm. 18, 127 S.W.2d 902: Cain v. State, 15 'I'ex
          See also annotationsunder Article 560 Code of Crimi-
nal Proledure,In Volume 12, Texas Mgest, Crimiial Law, Key 636
(No. l), Page 286.


                             -2639-
Honorable Clint Starr, page .3-fC-.p~g),;:


       With regard to',:the
                          third and fourth questlons:wewould
point out that the only time the,defendantis authorized to
appear and plead "in absentia" is set forth In Article 581,
Vernon's Code of ~CrIminalProcedure:
           "In other misdemeanorcases, the defendant
      may,..byconsent of the State's attorney, appear
      by counsel, and the trial may proceed without his
      personal presence."
       ItIs ,thereforethe opinion of this office that no one
other than an attorney may appear and plead for a defendant even
though such person;might hold's power of attorney executed by the
defendant giving the holder thereof authority to enter such plea.
Such appearance Is limited by the statute Itself to appearance
by counsel. Present Article 581 has been re-enacted in~the new
Code of Criminal Procedure verbatim as Article 33.04.
       In answer to your fifth question, there is no method of
waiver that we are~able to find. However, Article 33.03 of the
new Code of Criminal Procedure provides that when the defendant
voluntarilyabsents himself after pleading to the indictment or
informationthe trial may proceed to Its conclusion. ThI.s.ob~-
vlously serves to prevent a man from invalidatinghis trial by
walking%out inithe middle of it.
       The Padillo case, supra; Is authority for holding the
judgment void where It is rendered pursuant to a plea of guilty
entered in the absence of the defendant where.the punishment
can result in the assessment of jail time. The few cases dealing
with voidable judgments where the defendant was absent .ona hear-
ing for motion for new trial will be eliminatedby the special
provision added to Article 33.03 of the new Code of Criminal
Procedure,which specificallyexempts the defendant from having
to be present,,on.themotion for new trial In any misdemeanor
case.
                        SUMMARY
           The appearance of a defendant on a plea '
      of guilty, is mandatory any time the punish-
      ment for the crime with which such defendant
      Is charged can result in defendant'sreceiving
      a jail sentence. If the defendant In such a
      case does not personally appear the judgment
      rendered against him is void and is subject
      to collateral attack. In those cases in which
      defendant is not required to be personally
      present, he may appear by and through an attor-     -.
      ney at law. If this procedure is not followed
                            -2640-
Honorable Clint Starr, @age 4 (C- 549)


       the judgment rendered therein will be subject
       to attack, as being void.
                          Yours very truly,
                          WAGGONERCARR
                          Attorney General   of Texas


                          &-M&
                            THOMAS W. MACK
                            Assistant Attorney General


APPROVED:
OPINION COMMITTEE
W. 0. Shultz, Chairman
Sam L. ~Kelley
tinny P. Zwlener
Howard M. Fender
APPROVED FOR THE ATTO&   GENERAL
BY: T. B. Wright




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