Honorable E. L. Max Hamilton     Opinion No. C-590
County Attorney
Terry County                     Re: Whether a judgment of
Brownfield, Texas                    convictionin a mis-
                                     demeanor case, punish-
                                     able by imprisonment
                                     and the defendantwas
                                     too poor to employ
                                     counsel ana the court
                                     failed to appoint
                                     counsel to represent
                                     him, is valid or void,
Dear Mr. Hamilton:    -                and   related   questions.

        Your letter requesting an opinion of this office
reads substantiallyas follows:
          Pursuant to Article 26.04 of the Code
       of Criminal Procedure, it is my opinion
       that the provisions of said Article re-
       quire that the County Court MUST appoint
       counsel for all misdemeanor cases punish-
       able by possible imprisonmentwhen the
       defendant cannot afford counsel. would
       you please give your opinion concerning
       the following cases:
              What would be the effect of a
        juc&ent of convictionagainst a aefend-
       ant in such a misdemeanor ease without
       having counsel appointed?
            2. What if a defendant is able to
       afford counsel and refuses to a0 so?
       Must   the Court still appoint such coun-
       sel for hiti?
          3. Are not the rules applicable to
       District Courts for the State of Texas
       in regarding appointmentof counsel ap-
       plicable to the County Courts in cases
       of misdemeanorscarrying a possible jail
       sentence?

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Honorable E. L. Max Hamilton, Page 2, (c-598)


       Article 26.04, Vernon's Code of Criminal Procedure,
provides:
           "(a) Whenever the court determinesat
        an arraignmentor at any time prior to ar-
        raignment that an accused charged with a
        felony or a misdemeanorpunishableby im-
        prisonment is too poor to employ counsel,
        the court shall appoint one or more prac;
        ticing attorneys to defend him. In making
        the determination,the court shall require
        the accused to file an affidavit, and may
        call witnesses and hear any relevant testi-
        mony or other evidence.
           "(b) The appointed counsel Is entitled
        to ten days to prepare for trial, but may
        waive the time by written notice9 signed
        by the counsel and the accused."
        In answer to~your~first_questfon, by virtue of the
express provisions of Article 2o,.O4of the Code of Criminal
Procedure, it is the opinion of thls office, unless waived
by the defendan%, that the new Code of Criminal Procedure
will require the appointmentof coumel for indigent de-
fendants in misdemeanor cases punishableby imprisonment.
The failure of the trial court to appoint counsel for an
indigent defendant charged with a felony or a misdemeanor
nunlshablebv imnrisonmentwill render the convictionof
the defendant void, ?St?Donaldv. Moores 353 B.2d 106 (C.
A. 1965); Gideon v.                    . 335 (1963); %rn-
                                        rveg v. Missi~-

        In answer to your second question, we have been
unable to find any provision fn the new Code for appoint-
ment of counsel for a defendantwho is not indigent.
Neither has the United States Supreme Court held that a
non-indigentdefendant is entitled to assigned counsel.
Therefore, it is the opinion of this office that where the
trial court has advised a defendant of his right to the as-
sistance of counsel and has made a determinationthat the
defendant is not too poor to employ counsel, the defendant
should be given an opportunityto contact an attorney If he
so desires. If the defendant still does not desire coun-
sel, then a writ&n record of the determinationthat the de-
fendant is not indigent should be ffled among the papers of
the cause along with the advice of the court and the de-
fendant's waiver of counsel.


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        Honorable E. L. Max Hamilton, Page 3, (c-598)


                In answer to your third question, It is the opinion
        of this office that the rules now applicable to district
        courts of the State of Texas, in regard to the appointment
        of counsel, are applicable to county courts in cases of mis-
        demeanors carrying a possible jail sentence. Article 26.04.
                              SUMMARY
                    A judgment of conviction in a misdemeanor
                 case punishable by Imprisonment is void where
                 the defendant Is too poor to employ counsel
                 and the trial court has failed to appoint coun-
                 sel to represent him, unless counsel has been
                 waived by the defendant. If the defendant is
                 able to afford counsel, the court is not re-
                 quired to appofnt counsel for him. The rules
                 applicable to district courts, In regard to
                 the appointment of counsel, are applicable to
                 county courts In ca3es of misdemeanors, car-
                 rying;a possible jail sentence.
                                             Yours very truly,
                                             WAGGONER CARR
                                             Attorney General of Texas




                                             Asslstant'Attorney General
        DHC/dt
        APPROVED:
        OPIRION COMMITTEE:
        W..V. Geppert, Chairman
        Robert E. Owen
        Howard M. Fender
        Lonny F. Zwiener
        John Banks
        APPROVED FOR TIIEATTORmY   GENERAL
        BY T. B. Wriqnt




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