 J_ OFFICE   OF   THE   ATTORNEY   GENERAL   - STATE   OF TEXAS

   JOHN CORNYN




                                                       September 4,2002



The Honorable Tom Ramsay                                          Opinion No. JC-0549
Chair, County Affairs Committee
Texas House of Representatives                                    Re: Whether article 1.051 of the Texas Code of
P.O. Box 2910                                                     Criminal Procedure requiring that counsel for
Austin, Texas 78768-2910                                          indigent criminal defendants be appointed within
                                                                  one day of the defendant’s request in populous
                                                                  counties and within three days of the request in
                                                                  less populous counties violates state and federal
                                                                  equal protection guarantees, and related question
                                                                  (RQ-05 19-JC)


Dear Representative           Ramsay:

        Article 1.051 of the Code of Criminal Procedure, as amended in 2001 by the Texas Fair
Defense Act, establishes standards for appointing counsel to represent indigent persons in criminal
proceedings.     You ask whether article 1.05 l(c) requiring that counsel for indigent criminal
defendants be appointed within one day of the defendant’s request for counsel in populous counties
and within three days of the request in less populous counties violates the equal protection
guarantees of the state and federal constitutions.’ You also ask whether article 1.05 1, in allowing
each county to determine its own indigency standard for the purposes of appointing counsel, violates
the equal protection guarantees. See Request Letter, supra note 1, at 1. We answer both questions
in the negative.

          Article 1.05 1 of the Texas Code of Criminal Procedure deals with a criminal defendant’s
right to representation by counsel. Subsection (a) provides that any “defendant in a criminal matter
is entitled to be represented by counsel in an adversarial judicial proceeding.” TEX. CODECRIM.
PROC.ANN. art. 1.05 1(a) (Vernon Supp. 2002). The statutory “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 proceeding.” Id. An indigent criminal defendant is entitled to have an
attorney appointed in any adversarial judicial proceeding “that may result in punishment by
confinement and in any other criminal proceeding if the court concludes that the interests ofjustice
require representation.” Id. art. 1.05 1(c); see also id. art. 26.04(c) (authorizing court or its designee



         ‘See Letter from Honorable Tom Ramsay, Chair, County Affairs Committee, Texas House of Representatives,
to Honorable John Comyn, Texas Attorney General (Mar. 4, 2002) (on file with Opinion Committee) [hereinafter
Request Letter].
The Honorable      Tom Ramsay         - Page 2          (JC-0549)




to appoint counsel if court determines that defendant charged with felony or misdemeanor
punishable by confinement is indigent or interests of justice require representation). “Indigent,” for
the purposes of article 1.05 1, “means a person who is not financially able to employ counsel.” Id.
art. 1.05 1(b). Counsel appointed to represent an indigent defendant is entitled to ten days to prepare
for a proceeding unless the preparation time is waived with the consent of the defendant. See id. art.
 1.05 l(e). The ten-day period is counted from the date of appointment. See 42 GEORGEE. DIX &
ROBERT0. DAWSON, TEXASPRACTICE:CRIMINALPRACTICEAND PROCEDURE5 24.62 (2d ed. 2001)
(statute has been applied by requiring counsel to have ten days from appointment).

          Article 1.05 1 now provides a maximum time limit within which counsel must be appointed
to represent an indigent defendant.        Prior to 2001, article 1.05 1 required only that counsel be
appointed “as soon as possible” if requested by an indigent defendant, but did not specify an outside
time limit for the appointment. See Act of May 30, 1987,7Oth Leg., R.S., ch. 979, 8 1, 1987 Tex.
Gen. Laws 3321,3321-22.         In 2001, the legislature adopted Senate Bill 7, the Texas Fair Defense
Act, to generally provide more uniform standards for the appointment and compensation of counsel
to represent indigent persons. See Texas Fair Defense Act, 77th Leg., R.S., ch. 906, § 1,200l Tex.
 Gen. Laws 1800.2 Senate Bill 7 amended, among other statutory provisions, article 1.05 1 to require
 a court or the court’s designee to appoint counsel for an indigent defendant within specific time
periods of the defendant’s request. See id. 5 2, at 1800-01; TEX. CODE CRIM. PROC. ANN. art.
 1.051(c), (i) (Vernon Supp. 2002). The time periods differ depending on the initiation of adverse
judicial proceedings and the population of the county in which the court is located. Under article
 1.05 1(c), if adverse judicial proceedings have been initiated, counsel must be appointed “as soon as
possible, but not later than the end of the third working day after the date on which the court or
court’s designee receives the defendant’s request for appointment of counsel.” TEX. CODE CRIM.
PROC.ANN. art. 1.05 1(c) (Vernon Supp. 2002) (emphasis added). But in counties with a population
of 250,000 or more, counsel must be appointed “as soon as possible, but not later than the end of
the first working day after the date on which the court or the court’s designee receives the
defendant’s request for appointment of counsel.” Id. (emphasis added).              If adverse judicial
proceedings have not been initiated, article 1.05 l(i) provides that counsel must be appointed
“immediately following the expiration of three working days after” the receipt of the defendant’s
request; in counties with a population of 250,000 or more, counsel must be appointed “immediately
following the expiration of one working day after” the receipt of the defendant’s request. Id. art.
 1.05 1(i) (emphasis added).

          Your questions are prompted by the 200 1 amendments to article 1.05 1(c) effected by Senate
Bill 7. You note that “Senate Bill 7 provides for a system whereby in counties of less than 250,000
. . . an attorney shall be appointed for any eligible defendant within 3 days of the request” but “[i]n
counties of 250,000 or more, the Courts shall appoint counsel within 1 day of the request.” Request



          2Seealso SENATE RESEARCH CENTER,BILLANALYSIS,Tex. S.B. 7,77th Leg., R.S. (2001) (“Throughout the
many criminal courts . . . the variety of indigent defense systems result in a lack of uniformity in standards and quality
of representation among those many indigent defense systems. Senate Bill 7 provides for added order, accountability,
and quality control of the state’s provisions relating to indigent defense.“).
The Honorable   Tom Ramsay      - Page 3        (JC-0549)




Letter, supra note 1, at 1. You ask: “From a constitutional equal protection standpoint, are citizens
of counties with a population of less than 250,000 going to be denied equal protection under the
law?” Id. You do not elaborate on your question. Because you do not suggest that the statute is
inherently unfair, we understand you to ask whether article 1.05 1(c) in treating residents in counties
with a population of fewer than 250,000 differently than residents in counties with a population of
250,000 or more on its face violates the equal protection guarantees of the state and federal
constitutions.   See North v. Moffitt, 4 17 U.S. 600,609 (1974) (“‘Due process’ emphasizes fairness
between the State and the individual dealing with the State, regardless of how other individuals in
the same situation are treated. ‘Equal protection,’ on the other hand, emphasizes disparity in
treatment      by a State between        classes of individuals   whose situations       are arguably
indistinguishable.“).  We conclude that it does not.

         “An analysis of the constitutionality    of a [state] statute begins with a presumption of
validity.” Gen. Sews. Comm ‘n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001);
Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex.
1996); HL Farm Corp. v. Self, 877 S.W.2d 288,290 (Tex. 1994); Spring Branch I.S.D., v. Stamos,
695 S.W.2d 556,558 (Tex. 1985). When possible, a court will interpret a statute in a manner that
sustains its constitutionality. See Barshop, 925 S.W.2d at 629; Tex. State Bd. of Barber Exam i-s v.
Beaumont Barber Coll., Inc., 454 S.W.2d 729,732 (Tex. 1970). The burden of proof “is on the
party attacking the constitutionality of an act of the legislature.” Stamos, 695 S.W.2d at 558; Texas
Pub. Bldg. Auth. v. Mattox, 686 S.W.2d 924, 927 (Tex. 1985); see also Salvatierra v. Via Metro.
Transit Auth., 974 S. W.2d 179,182 (Tex. App.-San Antonio 1998, pet. denied) (“An intermediate
appellate court must have clear and certain grounds to find a statute unconstitutional.“).

          The fact that persons are treated differently, without more, is insufficient to establish denial
of equal protection. See Grtffin v. County Sch. Bd. ofPrince Edward Co., 377 U.S. 2 18,230 (1964).
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
commands that no state shall “deny to any person within its jurisdiction the equal protection of the
laws,” U.S. CONST. amend. XIV, 6 1, “which is essentially a direction that all persons similarly
situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
(1985). Similarly, article I, 8 3 of the Texas Constitution directing that “[a]11 free men, when they
form a social compact, have equal rights,” guarantees equality of rights to all persons. TEX. CONST.
art. I, 0 3; Burroughs v. Lyles, 18 1 S. W.2d 570,574 (Tex. 1944). Equal protection challenges under
both the federal and state constitutional guarantees are reviewed under the same standard. See City
of Cleburne, 473 U.S. at 440; Richards v. League of United Latin Am. Citizens, 868 S.W.2d 306,
3 1O-l 1 (Tex. 1993). The general rule is that a statute is presumed to be valid and will be upheld if
the classification of persons drawn by the statute is rationally related to a legitimate state interest.
See City of Cleburne, 473 U.S. at 440; Richards, 868 S.W.2d at 3 10-l 1. But the general rule gives
way when the classification impinges on a fundamental, constitutionally                protected right or
distinguishes between persons, in terms of any right, on a “suspect” basis such as race or national
origin. See City of Cleburne, 473 U.S. at 440; Richards, 868 S.W.2d at 311. In those instances, the
state action is subject to strict scrutiny and will be upheld only if the classification is narrowly
The Honorable     Tom Ramsay         - Page 4          (JC-0549)




tailored to serve a compelling       state interest.   See City of Clebume, 473 U.S. at 440; Richards, 868
S.W.2d at 3 11.

         The classification in article 1.05 1 of the Code of Criminal Procedure is not subject to strict
scrutiny because it does not distinguish between persons - in terms of the statutory right to have
counsel appointed within three days or within one day of the request for counsel - on the basis of
suspect factors, nor does it impinge on a fundamental right. On its face, the statutory classification
here is not made on suspect basis. Neither criminal defendants nor indigents are inherently a
“suspect class. ” See Harris v. McRae, 448 U.S. 297,322-23 (1980) (“poverty, standing alone, is not
a suspect classification”); Abdul-Akbar v.McKelvie, 239 F.3d 307,3 17 (3d Cir. 2001), cert. denied,
533 U.S. 953 (neither prisoners nor indigents are a suspect class); Williams v. Lynaugh, 814 F.2d
205,208 (5th Cir. 1987) (criminal defendants are not a suspect class). And you do not identify a
constitutionally    protected, fundamental right abridged or denied to indigent residents in less
populous counties. We do not believe that the article 1.05 1 classification impinges on the right to
counsel. The issue here is not whether counsel will be appointed, but rather when counsel will be
appointed - within one day or three days of the request for counsel. Under the Sixth Amendment
to the United State Constitution, indigent criminal defendants have the right to appointed counsel
to represent the defendant after the commencement of adversarial judicial proceedings. See, e.g.,
Green v. State, 872 S.W.2d 717 (Tex. Crim. App. 1994) (enbanc); Johnson v. State, 894 S.W.2d 529
(Tex. App.-Austin        1995, no pet).3 Indigent criminal defendants, however, do not have a
constitutionally protected right to have counsel appointed within a specified time period from the
date of the request for counsel. Cf: State v. Frye, 897 S.W.2d 324,327-28 (Tex. Crim. App. 1995)
(en bane) (Court of Criminal Appeals like the United States Supreme Court has not declared a
“bright line rule” for determining when adversarial proceedings have commenced in Texas,
triggering Sixth Amendment right to counsel); 42 GEORGE E. DIX & ROBERT0. DAWSON, TEXAS
PRACTICE:CRIMINAL PRACTICE AND PROCEDURE5 24.52 (2d ed. 2001) (Texas Court of Criminal
Appeals has implicitly acknowledged that neither Sixth Amendment nor Texas law makes clear how
promptly indigent defendant is entitled to have counsel appointed, citing Frye.). The Sixth
Amendment guarantees defendants the right to effective assistance of counsel in state criminal trials.
SeeMcMann v. Richardson, 397 U.S. 759,771 n.14 (1970) (emphasis added). The appointment of
counsel within one day, rather than three days would not appear to be, as a matter of law, necessary
to ensure effective assistance of counsel under the Sixth Amendment. CJ: Strickland v. Washington,
466 U.S. 668, 687 (1984) (to prove that counsel was constitutionally ineffective, defendant must
 show that counsel’s performance was deficient and that deficient performance prejudiced the
 defense). In any case, under the Texas Code of Criminal Procedure, unless waived by the defendant,
 counsel is entitled to a ten-day preparation period from the date of his or her appointment. See TEX.
 CODE CRIM. PROC.ANN. art. 1.05 1(e) (Vernon Supp. 2002). Significantly, this statutory provision



          3See also Gideon v. Wainright, 372 U.S. 335 (1963) (right of indigent defendant to counsel is fundamental and
binding upon states by virtue of Sixth and Fourteenth Amendments); Hernandez v. State, 988 S.W.2d 770,772-73 (Tex.
Grim. App. 1999) (en bane) (article I, section 10 of the Texas Constitution providing that “[i]n all criminal prosecutions
the accused . . . shall have the right of being heard by himself or counsel” is no more protective than its federal
counterpart).
The Honorable    Tom Ramsay       - Page 5       (JC-0549)




“reflects only a legislative requirement and is not based on constitutional necessity.” 42 GEORGEE.
DIX & ROBERT0. DAWSON, TEXAS PRACTICE: CRIMINALPRACTICEAND PROCEDURE6 24.61 (2d
ed. 2001); see also Marin v. State, 851 S.W.2d 275, 281 (Tex. Crim. App. 1993) (en bane)
(describing statutory requirement as prophylactic rule of procedure designed by legislature “to
impose a uniform requirement where the fairness of a flexible rule is too uncertain.“).

          The classification at issue is geographical and thus subject to the rational basis test. The
“state and federal equality guarantees relate to ‘equality between persons as such, rather than
between areas, and . . . territorial uniformity is not a constitutional prerequisite.“’ Richards, 868
S.W.2d at 311 (citing McGowan v. Maryland, 366 U.S. 420, 427 (1961), Mouton v. State, 627
S.W.2d 765,767 (Tex. App.-Houston          [ 1st Dist.] 1981, no pet.)). “Texas has long recognized that
legislation limited in operation to only a portion of the state or prescribing different rules for distinct
geographical areas is not invalid for denying equal protection where there is a reasonable basis for
the distinction and all persons similarly situated in the same place are equally treated.” Mouton, 627
S.W.2d at 767 (upholding constitutionality of Penal Code arson provision making certain conduct
in incorporated cities and towns an offense, but not so providing in unincorporated areas); see also,
e.g., Ex Parte George, 215 S.W.2d 170 (Tex. Crim. App. 1948) (upholding constitutionality                 of
plumbing regulatory statute applicable only to organized cities in excess of 5,000 population and
exempting others); Click v. State, 745 S.W.2d 480 (Tex. App.-Corpus Christi 1988, pet. ref d)
(upholding constitutionality of statute requiring use of video recording in DWI cases only in counties
of population of 25,000 or more); Daily v. Wheat, 68 1 S. W.2d 747 (Tex. App.-Houston [ 14th Dist.]
 1984, writ ref d n.r.e.) (upholding Probate Code provision providing for district court trials with
twelve jurors in less populated counties while limiting right of probate litigants in larger counties
to six-member juries); Tex. Att’y Gen. Op. No. JIM-1036 (1989) (concluding that court would find
constitutional Code of Criminal Procedure provision imposing criminal fine on justices of peace only
in counties with population in excess of 225,000 for trying bad check cases arising outside precinct).

         We believe a court would find a rational basis for the legislative distinction in article 1.05 1(c)
of the Code of Criminal Procedure between counties with a population of 250,000 or more and those
with a population of fewer than 250,000. The state has a legitimate interest in providing procedures
for the fair operation of an indigent defense system, including a uniform procedure for the prompt
appointment of counsel “where the fairness of a flexible rule is too uncertain.” See Marin, 85 1
S.W.2d at 281 (describing statutory ten-day preparation requirement as prophylactic rule of
procedure designed by legislature “to impose a uniform requirement where the fairness of a flexible
rule is too uncertain” among precepts for the fair operation of adjudication system).4 However, the
need for uniformity must necessarily be balanced against the need for workability given the size of
the state and the variations in size, resources, and problems of its numerous counties. See Louisiana
v. Bryant, 324 So.2d 389,392-93 (La. 1975) (methods for providing counsel for indigent defendants
may vary from one part of state to another without violating equal protection where it is necessary
to balance needs of uniformity and workability in state with political subdivisions of widely varying
population, geography, and problems). The legislature could have reasonably decided that more


        4See also supra note 2.
The Honorable   Tom Ramsay      - Page 6       (JC-0549)




populous counties have more attorneys and other resources necessary to allow the appointment of
counsel for an indigent criminal defendant in a shorter period of time than less populous counties
with fewer resources. See Hatch v. Oklahoma, 58 F.3d 1447, 1455 (10th Cir. 1995) (state law
allowing judges in populous counties to authorize employment of investigators for indigent criminal
defense did not violate equal protection because state “legislature could have rationally concluded
that hiring investigators only in its largest counties was a sounder and more efficient use of its
resources.“); Bryant, 324 So.2d at 392-93; Arizona v. Smith, 681 P.2d 1374, 1383 (Ariz. 1984)
(although indigent defense system in Mohave County might violate due process and right to
counsel, its variance from other county systems did not justify finding violation of equal protection,
citing Bryant); Eddings v. Oklahoma, 616 P.2d 1159,1164 (Ok. Crim. App. 1980) (statute providing
investigative and psychiatric assistance to indigent defendants only in county with population in
excess of 200,000 did not violate due process or equal protection; distinction was rational because
larger counties undoubtedly have greater number of indigents). Accordingly, we conclude that it is
unlikely a court would invalidate article 1.05 1(c) on equal protection grounds.

         You also ask: “Is it a violation of the [Elqual [Plrotection [Cllause of the Texas
[Clonstitution to allow each county to determine its own indigency standard under Senate Bill 7?”
Request Letter, supra note 1, at 1. Your question is premised on the conclusion that there is no
statutory definition of “indigency” for the purposes of appointing indigent counsel because Senate
Bill 7 does not define that term. As you explain:

                Nowhere in the bill is the term “indigency” defined. Therefore, a
                board of judges hearing criminal cases shall be established by each
                county to determine indigency in their county and thus indigency
                status differs from county to county. Under the Indigent Health Care
                Act, indigency is set by the state and each county must apply the
                same guidelines to assure equal application of the law.

Id. Again, you do not elaborate on your constitutional concern. Given the general nature of your
question and because article 1.05 1 does contain a definition of “indigent,” albeit a flexible one, we
address it in brief.

         The legislature has defined “indigency” and provided a flexible standard applicable to all
counties for the purposes of appointing counsel to indigent defendants. While Senate Bill 7 did not
include a definition of “indigency,” article 1.051 of the Code of Criminal Procedure does.
Subsection (b) of article 1.05 1 specifically provides: “For the purposes of this article and Articles
26.04 [procedures for appointing counsel] and 26.05 [compensation of appointed counsel] of this
code, ‘indigent’ means a person who is not financially able to employ counsel.” TEX. CODE GRIM.
PROC.ANN. art. 1.05 1(b) (Vernon Supp. 2002). It is the responsibility of the trial judge to determine
whether a defendant is indigent and must have counsel appointed. See Oliver v. State, 872 S.W.2d
713, 714-16 (Tex. Crim. App. 1994) (en bane). Article 26.04(a) directs the judges of the courts
trying criminal cases in a county to establish countywide procedures for “timely and fairly
appointing counsel for an indigent defendant in the county” consistent with, among other provisions,
The Honorable Tom Ramsay              - Page 7           (JC-0549)




the requirements of article 26.04 and article 1.05 1. TEX. CODE GRIM. PROC. ANN. art. 26.04(a)
(Vernon Supp. 2002). Article 26.04(Z) re q uires procedures adopted under subsection (a) to include
procedures and financial standards for determining whether a defendant is indigent. See id. art.
26.04(Z). Article 26.04(m) provides that in determining whether a defendant is “indigent,” a court
or court’s designee may consider the defendant’s income and its source, assets, property, outstanding
obligations, expenses, dependents, and spousal income available to the dependent.          See id. art.
26.04(m). Subsection (m) also provides that the court may not consider whether the defendant has
posted or is capable of posting bail except to the extent it reflects on the defendant’s financial
circumstances measured by the listed considerations which the court may take into account. See id.

          The indigency standard provided by the legislature for the purposes of appointing counsel
under article 1.05 1 is arguably more elastic than the standard in the Indigent Health Care Act. See
TEX. HEALTH & SAFETYCODE ANN. 9 6 1.006(b) (Vernon Supp. 2002) (“The minimum [indigent]
eligibility standards must incorporate a net income eligibility level equal to 2 1 percent of the federal
poverty level based on the federal Office of Management and Budget poverty index.“). It is quite
possible that particular components of the standard may differ in different counties depending on the
counties’ size, resources, and average or median income. See, e.g., Annette Fuller, Indigent defense
law ‘nightmare ‘for some, DALLAS MORNINGNEWS, June 6,2002, at 38A. (“Income guidelines for
indigents vary from county to county.“).

         However, we do not believe that a court would find the article 1.051 indigency standard
because of its relative flexibility violates, on its face, the state and federal guarantees of equal
protection. As the United States Supreme Court has said: “The Fourteenth Amendment ‘does not
require absolute equality or precisely equal advantages,’ nor does it require the State to ‘equalize
economic conditions.“’ Mofitt, 417 U.S. at 612 (citations omitted); see also Stamos, 695 S.W.2d
at 558 (burden of proof against presumption           of constitutionality  is on party attacking the
constitutionality  of legislative act). The indigency standard will necessarily vary in different
counties because of the varying incomes and cost of living measures in the counties. We are unclear
as to the statutory classification with which you are concerned.           The statutory definition of
“indigent” does not classify persons on the basis of race or otherwise. And, again, you do not
identify or assert a constitutionally   protected, fundamental right implicated by the indigency
standard. We note that the lack of a more definite indigency standard does not, by itself, deny or
abridge indigent criminal defendants’ right to counsel or substantive due process. The discretion
given to counties to determine what constitutes inability to employ counsel taking into account the
statutory factors might give rise to arbitrary or discriminatory application of the standard violative
of equal protection principles. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). However, no such
facts are before us and, in any case, this office does not make determinations requiring resolutions
of fact questions in attorney general opinions?




           ‘SeeJC-0020     (1999)at 2 (“[I] nvestigation and resolution of fact questions . . . cannot be done in the opinion
process.“); M- 187 (1968) at 3 (“[Tlhis office is without authority to make . . . factual determinations.“);  O-29 11 ( 1940)
at 2 (“[Tlhis . . . presents a fact question which we are unable to answer.“).
The Honorable   Tom Ramsay       - Page 8        (JC-0549)




                                          SUMMARY

                         A court would likely find that article 1.05 1(c) of the Code of
                Criminal Procedure, as amended by the Texas Fair Defense Act,
                requiring that counsel for indigent criminal defendants be appointed
                within one day of the defendant’s request in populous counties and
                within three days of the request in less populous counties does not
                violate the equal protection guarantees of the state and federal
                constitutions. The legislature has defined “indigency” and provided
                a flexible standard applicable to all counties for the purposes of
                appointing counsel to indigent defendants under article 1.051. A
                court would likely find that the article 1.051 indigency standard
                because of its relative flexibility does not violate, on its face, the state
                and federal guarantees of equal protection.




                                                  Attorney General of Texas



HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General, Opinion Committee
