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 mis-
                                  demeanor 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 fol-
     lows:
           "Pursuant to our telephone conversation
        with Mr. Hea,th,we are placing in writing the
        following:
           I'Someof 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 ac-
        tually had.
           "We would appreciate having your opinion as
        to whether or not ,thedefendant 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 as-
        sessed by the court,
           "If such procedure is possible, please
        suggest a proper form for such receipt and ap-
        pointment 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 mis-
    demeanor 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 mis-
    demeanor 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 com-
    mencement, 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 defen-
    dant,"
       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:
       "TFIejudgment 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 au-
   thorize the defendant to appear in person or
   by counsel, either or both, and in finable mls-
   demeanors 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 defen-
   dant in court, and that he enter the plea hlm-
    self. This matter was discussed In the Jones
   case, sugra, 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 of-
fense 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 forkhim and enter a plea of guilty. It is our further
opinion that only the defendant himself, or counsel represent-
ing 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
                                 By s/Ardell Williams
AW:EP:wc                              Ardell Williams
                                      Assistant
APPROVED NOV 4, 1943
s/Grover Sellers
FIRST ASSISTANT                  Approved Opinion Committee
ATTORNEY GENERAL                  By s/BWB Chairman
