                          November 8, 1988




Honorable Mike Driscoll        Opinion No.   JM-977
Harris County Attorney
1001 Preston, Suite 634        Re: Appointment of counsel for
Houston, Texas 77002           indigent. defendants under arti-
                               cle 1.051(c), Texas Code of
                               Criminal Procedure, and related
                               questions (RQ-1379)

Dear Mr. Driscoll':

     You state that'the questions you ask have been prompted
by inquiries from justices of the peace in Harris County.
You note that the primary focus of your concern      is the
appointment of counsel for defendants charged with class C
misdemeanors.  Consecuentlv, our treatment of vour questions
will be limited to cases in the iustice court. You ask:

           1. In what cases should the court appoint
        counsel to represent indigent defendants?

           2. Whether appointment   of counsel  for
        indigent defendants is appropriate in peace
        bond hearings?

           3. Whether a defendant, who is committed
        to jail and applies for a deferred payment
        plan to secure release from jail, is entitled
        to have an attorney appointed for him?

           4. Whether there are circumstances         other
        than indigence that would require             court
        appointed counsel?

      It appears that your questions have resulted from the
enactment of S.B. 1109 (now article 1.051 of the Code of
Criminal Procedure) by Acts 1987, 70th Leg., ch. 979,
section 1, at 3321, effective Sept. 1, 1987. Article   1.051
of the Code of Criminal Procedure provides     in pertinent
part:




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Honorable Mike Driscoll - Page 2   (JM-977)




           (a) A defendant  in a criminal matter  is
        entitled to be represented by counsel in an
        adversarial judicial proceeding.   The right
        to be represented   by counsel includes the
        right to consult in private with counsel
        sufficiently in advance of a proceeding   to
        allow adequate preparation  for the proceed-
        ing.

            (b) For the purposes of this article and
        Articles   26.04 and 26.05 of this      code,
        'indigent' means a person who is not finan-
        cially able to employ counsel.

           (c) An indiaent defendant   is entitled to
       have an attornev aDDointed to revresent him
       in anv adversarv iudicial Droceedina that mav
       result in Dunishment bv confinement and in
       anv other Criminal Droceedina     if the court
       concludes   that the interests of       iustice
       recuire reDresentation.       If an    indigent
       defendant is entitled to and requests ap-
       pointed   counsel, the court shall appoint
       counsel to represent the defendant as soon as
       possible.

           (d) An eligible  indigent defendant  is
       entitled to have the trial court appoint an
       attorney to represent him in the following
       appellate and postconviction  habeas corpus
       matters:

           (1) an appeal to a court of appeals:

           (2) an appeal to the Court of Criminal
       Appeals if the appeal is made directly   from
       the trial ,court or if a petition for discre-
       tionary review has been granted;

           (3) a habeas corpus proceeding     if the
        court concludes that the interests of justice
        require representation: and

           (4) any other appellate proceeding if the
        court concludes that the interests of justice
        require representation.   (Emphasis added.)

     Underlying principles of law relative to your first and
third questions have been addressed by numerous opinions  of   -.,
federal and state courts as well as opinions of this office.




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Honorable Mike Driscoll Y Page 3   (JM-977)




     In Araersinaer      Ha ljg   407 U.S. 25 (1972)      the
United States Suprem:' CouFt held that the right Lf an
indigent defendant in a criminal trial to the assistance   of
counsel guaranteed by the Sixth Amendment and made applic-
able to the states by the Fourteenth Amendment in Gideon v.
Wainwriaht   372 U.S. 335 (1963), is not limited by the
classificaiion of the offense or by whether   ornota     jury
trial is required. The court concluded that an accused may
not be deDrived of his libertv as the result of anv criminal
prosecution, whether felonv or misdemeanor, in which he was
denied the assistance of counsel. In Araersinaer the court
noted that "everv iudae will know when the trial starts that
no imDrisonment mav be imDosed" and "the run of misdemeanors
will not be affected bv todav's rulinq." Arsinaer 407 U.S.
at 40. (Emphasis added.)


     In Attorney General Opinion JM-312     (1985), it was
concluded that neither constitutional    case law nor the
statutes require the appointment of an attorney to represent
an indigent accused of a misdemeanor in justice court since
the "justice court lacks jurisdiction to determine   finally
any criminal action in which the punishment prescribed    by
law may be a fine exceeding $200 or may involve imprisonment
for any length of time." Attorney General Opinion JM-312,
at 3 (1985).

     The United States Supreme Court held that a defendant
may not be imprisoned because he is too poor to pay his fine
in Tate v. Short, 401 U.S. 395 (1971). Citing Tate v.
Short, the Texas Court of Criminal Appeals concluded that a
defendant was entitled to relief in a habeas corpus proceed-
ing under these circumstances.     Ex Darte Miniares,    582
S.W.2d 105 (Tex. Crim. App. 1978). This raises the question
of whether counsel should be appointed to represent       an
indigent defendant  accused of a class C misdemeanor      in
justice court to avert the possibility   that the defendant
who is too poor to pay his fine be imprisoned in violation
of Tate v. Short.    Neither Araersinaer  nor state statute
require that counsel be appointed in class C misdemeanors to
insure that there will not be instances when authorities may
illegally restrain a defendant who is unable to pay his
fine. We believe that this is the very type of situation
where the appropriate remedy is the writ of habeas corpus.
&S Code Crim. Proc. art. 11.01 et sea. In Attorney General
Opinion JM-403 (1985), it was noted that article 26.05 of
the Code of Criminal Procedure provides     for payment   of
counsel appointed to represent indigent defendants in habeas
corpus proceedings.




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Honorable Mike Uriscoll - Page 4   (JM-977)




     The Legislature in S.B. 1109 (now article 1.051 of the
Code of Criminal Procedure) provided an additional basis   for
appointment of counsel    for an indigent defendant      in a
criminal case. Acts 1987, 70th Leg., ch. 979, 5 1, at     3321
(effective September 1, 1987.) Section (c) of article 1.051
provides that an indigent defendant   is entitled to have an
attorney appointed in "anv other criminal DrOCeedinc if the
court concludes that the interests of iustice reo-uire reDre-
sentation."   (Emphasis added.) The legislature did not set
any guidelines for a court to determine when counsel is to
be appointed in "the interests of'justice."   The legislature
undoubtedly concluded that this is a matter that necessarily
requires resolution on a case-by-case basis. Since section
(c) provides that this authority is given the court in "any
other criminal proceeding 'Ithe justice court would appear to
have discretion to appoint counsel for an indigent defendant
in a class C misdemeanor case when the justice of the peace
determines   that the interest of justice requires        such
appointment.1

     The matter  of appointment  of counsel   for indigent
defendants in civil cases was reviewed in Attorney General
Opinion JM-403 (1985). In Attorney General Opinion JM-403
it was stated:                                                   --.

           This right to have the state provide
        counsel extends to every case in which the
        litigant may be deprived of his personal
        liberty if he loses: the right does not
        depend merely upon labels of 'civil' or
        'criminal.' LaSSiter v. DeDartment Of Social
        Services, 452 U.S. 18, 25 (1981); In re



   1. The bill analysis to S.B. 1108 focuses on provisions
other than the instances    in which counsel should      be
appointed. The purDose of S.B. 1108 is stated, as follows:

          To provide a     uniform  state-wide  system   for
     determining indigency and for permitting     waiver  of
     counsel; permitting   the   Court to order     indigent
     defendants to make partial payment of court-appointed
     attorney fees: removing the maximum limit the Court can
     order for the payment of doctors and other expert
     witnesses: and removing the minimum the court can pay
     appointed counsel.

Bill Analysis, Tex. S.B. 1108, 70th Leg. (1987).                 -.




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     Honorable Mike Driscoll - Page 5   (JM-977)




            Gaule, 387 U.S. 1, 41 (1967); pidcwav
            3-,     720 F.2d 1409, 1413 (5th Cir. 1983:;
            ~~~~        Attorney General Opinion JM-176
                   . The Fifth Circuit in pidcway applied
            this rule to an accused father who was denied
            counsel and condemned to imprisonment     for
            civil contempt   in a nonsupport proceeding
            despite an     uncontroverted  assertion   of
            indigency. &g 720 F.2d at 1413.

               We considered    the    nature of    'civil'
            contempt proceedings    at length in Attorney
            General Opinion JM-176 and concluded       that
            '[wlhether classified as civil or criminal,
            contempt   proceedings     invariably    invoke
            certain aspects of the criminal process.'
            The Texas Supreme Court has declared that    'a
            contempt proceeding is unlike a civil suit,
            has some of the incidents of a trial for
            crime, and is quasi-criminal in nature.'
            parte Cardwell,   416 S.W.2d 382, 384     (Te?
            1967)'(citing Ex narte Davis, 344 S.W.2d    153
            (Tex. 1961)).    Consequently, proceedings   in
.-
            contempt cases should conform as nearly as
            possible to those in criminal cases.         &
            parte Bvram, 662 S.W.2d 147 (Tex. App. - Fort
            Worth 1983, no writ); Deramus v. Thornton,
            333 S.W.Zd 824, 829     (Tex. 1960): Ex narte
            Stanford, 557 S.W.2d 346, 348 (Tex. Civ. App.
            - Houston   [lst Dist.] 1987, no writ): see
            also Ex narte Wilson,     559 S.W.Zd 698, 701
            (Tex. Civ. App: - Austin      1977, no writ).
            Thus, state law as well as federal law
            recognizes that the mere labels of 'civil' or
            'criminal' should not control due process
            considerations.

     Attorney General Opinion JM-403, at l-2 (1985).

          In Attorney General Opinion JM-312 (1985), it was noted
     that then article 1917, V.T.C.S. (now section 24.016 of the
     Government Code), provides that a district judge may appoint
     counsel to represent any party who is too poor to employ
     counsel. Similarly then article 1958, V.T.C.S. (now section
     26.049 of the Government  Code), grants the same discretion
     to county judges. However, it was pointed out that there is
     no corollary statute that would enable justices of the peace
     to appoint counsel  in civil cases. It was further noted
     that the provisions relative to district and county judges
     were adopted as part of the civil statutes and are not



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Honorable Mike Driscoll - Page 6      (JM-977)

                                                                        -.


mandatory.  While there is no statute authorizing    justices
of the peace to appoint counsel in civil proceedings,
federal constitutional   laws as construed by the United
States Supreme Court would nevertheless require appointment
of counsel in a civil case pending in justice court when the
litigant may be deprived of his personal     liability if he
loses. Perhaps the absence of a statutory proceeding     stems
from the Legislature not   envisioning a civil proceeding   in
justice court which might result in the losing party being
deprived of his personal liberty.

     In your first question you ask in what cases the court
should appoint counsel to represent    indigent defendants.
Since imprisonment is not a direct consequence of a class C
misdemeanor conviction (fine not to exceed $200), counsel
need not be appointed for an indigent defendant unless the
court determines  that the "interests of justice"    require
such appointment.

     Your   third   question   is   prompted     by   the   following
scenario:

           The third question presented   deals with
        the special arrangement where the defendant                     -.
        is permitted to pay his assessed fines by way
        of a deferred payment plan, instead of being
        confined for default in paying said fines.

     You call attention to article 42.15 of the Code of
Criminal Procedure providing for the deferral of a fine
assessed upon conviction of a class C misdemeanor.        See
Attorney General Opinion JM-898 (1988).     In your scenario
you assume that such a deferral procedure may be the only
alternative to confinement   in jail for a defendant who is
unable to pay his fine.      Article  42.15 of the Code of
Criminal Procedure provides for a form of probation    avail-
able to defendants convicted of offenses with a maximum
punishment of a fine not to exceed $200. Attorney     General
Opinion JM-526 (1986).    At the end of the probationary   or
deferral period the justice of the peace may imnose the fine
if it is determined that the defendant has not complied with
the requirements   imposed under article 42.15.    Since the
penalty is a fine, Tate v. Short, prohibits the imprisonment
of a defendant who is too poor to pay his fine.      Further,
our conclusion to your first question that the justice court
is not required to appoint counsel to represent      indigent
defendants charged with class C misdemeanors      unless the
court determines "that the interests of justice require such
representation" appears to be dispositive of this inquiry.




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Honorable Mike Driscoll - Page 7   (JM-977)




     You next ask whether appointment of counsel for indi-
gent defendants   is appropriate  in peace bond hearings.
Article 7.03 of the Code of Criminal Procedure authorizes   a
magistrate to require a person to make a bond conditioned
that he will keep the peace toward the person the magistrate
has found the accused has threatened.  If it appears to the
magistrate from the evidence presented at the hearing that
the accused has committed an offense, article 7.13 of the
Code of Criminal Procedure provides that he shall be tried
for the offense.    A peace bond hearing is usually in the
justice courts and is civil in nature because there is no
direct criminal sanction for its violation since it is a
procedure commonly employed prior to the commission of a
criminal act.     Reamey, Legal Remedial Alternatives     for
Spouse Abuse   in Texas, 20 Houston L. Rev. 1279, at 1287
(1983).2 In Attorney General Opinion O-6669 (1945), it was



   2. The Reamey article addresses the widespread use        of
the peace bond procedure in spousal abuse cases.

           Peace bonds have often been issued in
        cases of family violence   as an inexpensive
        and readily available deterrent. . . .

           As a practical matter, any remedy in the
        field of spousal abuse must be available
        quickly and inexpensively.  Its availability
        must be widely known, and it must address the
        needs   of   the   spouse   requiring   abuse
        protection.  It is just this availability
        that has metamorphosed the peace bond into a
        common protective device for spousal assault.

           Because peace bonds are usually adminis-
        tered by justice courts, they are easily
        accessible.    The geographical distribution of
        such courts makes them the most convenient
        forum     for   judicial   intervention.      In
        addition, the informalitv associated with the
        iustice court encouraaes pro se filina and
        prosecution of netitions with minimal      court
        costs.     The resulting   frequency of peace
        bonds as a violence control device       insures
        that victims   will know of the existence     of
        this remedy and will seek it out in time of
        need. . . .
                                           (Footnote Continued)




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Honorable Mike Driscoll - Page 8    (JM-977)




noted that, the only remedy the state has against one     who
breaches a peace bond is a suit to recover on the bond.

     The fact that a person may be required to make a bond
to keep the peace would not appear to trigger the necessity
for the appointment of counsel.   If this were so every time
an appearance bond is set in a class C misdemeanor,   counsel
would have to be appointed.    (Article 17.20 of the Code of
Criminal Procedure  allows peace officers to set bonds      in
misdemeanor cases.) Neither the constitutional    requirement
for appointment of counsel set forth in Araersinaer nor ,the
state statutes require such appointment.   The problem in the
peace bond procedure arises when the defendant fails or is
unable to give the security for the bond set in the peace
bond hearing. Article 7.08 of the Code of Criminal     Proce-
dure provides:

           If the defendant fail to give bond, he
        shall be committed to jail for one year from
        the date of the first order requiring   such
        bond.



(Footnote Continued)

           In spite of the difficulties inherent     in
        the peace bond procedure      and pattern   of
        sanctions, the peace bond remains somewhat
        effective as a deterrent.     The efficacy  of
        any legal protection depends    in large part
        upon its ability to shape behavior, and in
        this respect the peace bond has built an
        admirable   record upon a weak foundation.
        Simply stated, it is the belief of the victim
        and the abuser in the procedure that makes it
        work. While hardly an imposing body in the
        context of the entire legal system, the
        justice court may well represent     the only
        visible representative of social order with
        which the parties have been involved. There-
        fore, one cannot underestimate the effective-
        ness of such orders as nractical and useful
        tools   in    deterrina   domestic   violence,
        especially when divorce is not a desirable
        alternative.   (Footnotes in text omitted and
        emphasis added).

20 Houston L. Rev., at 1287-1289.                                -.




                             P. 4987
I



                                Page   9
.
    Honorable Mike Driscoll -              (JM-977)




         The commitment of a person to jail for a term of one
    year takes on the incidents of a criminal procedure.      In
    Kolvek v. NavDle, 212 S.E.2d 614 (W. Va. 1975), the defen-
    dant was committed to jail for a period of one year when he
    was unable to post the required peace bond under a similar
    statute. The court held that while the peace bond statute
    was not unconstitutional   on its face, the magistrate's
    application of the statute requiring the defendant to post
    the required peace bond violates the equal protection clause
    where he is indigent and cannot provide such surety.     The
    cause was reversed and remanded to the magistrate       with
    instructions that the magistrate permit the defendant to go
    on his own recognizance to keep the peace.

         While the posting of a bond to keep the peace where
    there has been no alleged violation of the law may be civil
    in nature, the commitment for a term of one year in prison
    is at the very least quasi-criminal in nature. See Attorney
    General Opinion JM-403 (1985). Whether it be characterized
    as criminal or civil, it would appear that federal constitu-
    tional law requires that counsel be appointed      before a
    commitment issues ordering the defendant to jail for a term
    of one year. We believe the issuance of such a commitment
    bears such similarity to a criminal procedure as to require
    the justice of the peace to appoint counsel         "in the
    interests of justice" under article 1.051 of the Code of
    Criminal Procedure.  If the justice of the peace fails to
    reduce the amount of bond to an amount the defendant     can
    make, or declines to allow the defendant to go on his own
    recognizance if he is unable to make bond, counsel is in
    place to obtain a writ of habeas corpus in another    court.
    (A justice court does not have jurisdiction    to issue the
    writ of habeas corpus under article 11.05 of the Code of
    Criminal Procedure.)

         In your last question, you inquire whether there are
    circumstances   other than indigence that would       require
    appointed counsel. You do not brief this question in the
    memorandum of law you have submitted.     Consequently,   the
    question is not in compliance with section 402.043 of the
    Government Code   (formerly article 4399, V.T.C.S.)   and we
    have not attempted to answer the same. &    Attorney General
    Opinion JM-727 (1987).

                           SUMMARY

                 Counsel need not be appointed to repre-
            sent an indigent defendant charged with a
            class C misdemeanor unless "the court con-
            cludes that the interests of justice require




                                   p. 4988
Honorable Mike Driscoll - Page 10    (JM-977)




        such representation."    Since the     penalty
        cannot exceed a $200 fine in an article 42.15
        Code   of    Criminal  Procedure   proceeding
        providing for the deferral of a fine upon
        conviction, our answer to your first question
        is dispositive of your third inquiry.    While
        it is not necessary for the justice court to
        appoint an attorney at the initial peace bond
        hearing, counsel should be appointed for a
        defendant who has failed to give the required
        bond before he is committed to jail for a
        period of     one year   in order     that
        determination may be made as to whether    t$
        defendant is financially able to post the




                                    J h
        required security.

                                     Very truly yo

                                           A;,
                                     JIM      MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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