                          qme ,17,     1953


Hon. Frank D. ..~cCown           Opinion      Ho. ,,S-54
County Att.orney
Dallam County                    ha:   Validity    of an Instrument
Dalhart8 Texas                         executed    by a defendant   in
                                       a misdemeanor case,     waiving
                                       trial    by jury and appearance
                                       in person or by counsel      and
Dear sir:                              ent.erlng a plea of guilty.

               you have submitted      the fol$orlng   two questions
for     an.ew~r:

               ‘Ques.tlon One: Does the term .counse”l,
         a$ used in Article   582, C .C . P. .mean any one
         other t,han a party xcensed      to pract+?   law
         in the State of Te.xas?

               “Question   !Pwo. Would a legal    Instrument,
        drawn aa a waiver of all rights        to a trial
        by jury,   waiving all rights     for the defenUant
        to her physlo,ally   present   In the Court room
        when~ the cas,e 1~ heard, and gunlsbment Is
        passed,   waiving all rights     to have an attorney
        at law appointed     for him to b,e present     in the
        Court room, and waive any and all-rights          to
        c,onteat the decision     of, the Court., be vall,d
        and bindlng wherein the ,charge is, a misdemeanor
        only?”       :

               Article  581,   Vernon’8    Code o,f Criminal   Pro.ce-
dure,     reads as follows:

                “in other mls,demeanor casea,   the de-
         fendant may, by consent     of the state’s
         attorney,    appear by counsel,   and the trial
         Mayo proceed, w.ithout his p,eraonal pree,e,nce . ”
                                                                            ,




Hon. Prank D. McCown, page 2 (S-54)



             The word ‘!c,ouns,el’! has a legal   meaning        as de-
fined    by Words and Phrases,      Per. Add. (1940) 10,         page 8.

               “The word ‘counse,l’   as used. in Vernon’s
        Constitution     of Texas, Artiple     I,, Section     10,
        providing    that an aocused has the right          of
        being heard by himself      or counsel     ,or both,
        has a well es,tahlished     mean%,ng and3.s there
        used it means an advocate,       co,unseJlor     or
        pleader,    one .who @&3ts    hisclient       with
        advice and pleads for him in open court;             and
        it does not me,an o:ne not admitted, to prac-
        tice   law.”   Rarkins ,v+ Murphy and Balons,
        112 S..W. 136; Higgins vr: Parker,        191 S.W.2d
        668 (Rehearing ~den$ed 1946)q
             Therefore,,   we agree’ with you that “.counsel”
means a llcensed,lawyer         of th,is atat,e and that under.
Article    581, Vernon’s Code of Criminal Procedure,         in
misdemeanor cas’es ,where the punishment ia by fine only,
a defendant ‘may be represented         bycounsel   who Is a
licensed    lawyer in the State of Texas,, and’ the de,-
fenda,nt’s    physical   pres.ene,e is not nece,&sary to a dis-
position    of his c.aae.

             particle    782,   Qernon’s   Code ,of Criminal     Proce-
dure,    pr,ovJdes :

              ‘The judgment      in a misdemeanor case may
        be rendered   i,n the    absence of the, :de,fendant.”

              Article   518,    Vernon’s   Code of   Criminal    i?ro,ce-
dure,    pro,vide.s :

               “A plea of guilty,in     a misdemeanor c,ase
        may be made either       by the defendant    or his
        cound     In 0,pen i,,o.ourt. In such ,caa,e, the-
        d,efendant or hla counsel      may waive a jury,
        and the punishment may be aaeessed, by the
        Court;   either  upo,n or without    evidence,   at
        the discretion    o,f the Courten

           Thus it rill  be, seen that a waiver of tria.1 by
jury of the defendant   must be made in open court in a
misdemeanor case L We’find. no authority   for using a
Hon. Frank D. McCown~ Page 3 (S-54)



written   waiver in misdemeanor cases,  but the above quoted
statutes   seem to us to give full  and ,complete authority
to try defendant   in his ab.sence in misdemeanor cases
without a waiver when and only when he is represented       by
co,unsel.

           Article  11, Vernon's   Code of Criminal  Proce-
dure, has no application    to misdemeanor cases.    The    '
caption  of the last amendment to.Artic,le   11 (Senate Bill
53, Acts o,f the 42nd Legislature,    R-S., 1931, ch. 43,
p. 65) restricts   the provisions   of this statute  to felony
oases less than capita,l.

            ~Therefore,~ you are advised   that defendants  in
misdemeanor casea when punishment Is by fine only,~may
be tried   in their    absence without securing  waivers,  when
appearance   is,, made by counsel.

                             SUMMARY

            The word "counsel"      in   la)r,means a
      persons licensed  to,practice       law in the
      State of Texas.

            An instrument In the nature of a written
      waiver may not be us~ed by the deendant   in a
      misdemeanar caas in lieu of his personal   ap-
      pearance or appearance  by his.counsel.

                                         Yours   very   truly,

APPROVED:                                JOHN BEN SHRPPERD
                                         Attorney General
J. C, Davis,   Jr.
County Affairs    Division

C. K. Ri.chards
Reviewer                                     B. Duncan Davis
                                                        Assiatant
Robert S. Trottl
First  Assistant

John Ben Shepperd
Attorney General

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