                                 The Attorney                General         of Texas
JIM MAlTOX                                            &ril    26, 1985
Attorney General


Supreme Court Bullding         Eonorable Richard 6. I4orales                    Opinion   No.   m-312
P. 0. Box1254a
                               Webb County Attorncg
*ustIn,lx. 78711.
               254a
51214752501                    1104 Victoria                                    RA: Whether   a court-appointed
Telex 51wS74-122.7             Laredo, Texas    7806.0                          attorney muat be provided for au
TelmDpler 5121475aaS                                                            indigent  in  every   misdemeanor
                                                                                CAAe

714 Jackron. Suit. 700
oallas. TX. 752024506          Dear Mr. Horalaa:
214f742aS44
                                     You aak generally        whether a court-appointed    attorney    must be
                               provided     for an incHgent defendant       in every misdemeanor case.        YOU
4S24 Alberta Ave.. Suite la0
                               express     concern in particular       about misdemeanor cases vithln         the
El Paso, lx. 7980527S3
SlY533-3uu                     jurisdiction     of jwtlce      courts.   Such courts lack jurisdiction       over
                               misdemeanora which involve         the poas$ble punishment of conf%nement in
                               jail.     You alao lndtcate       that you seek our opinion vith      regard    to
1001 Texu, Suite 700           possible     modification    of a consent decree recently     entered    into by
noumm, TX. 77oQ2Jlll
                               Webb County.      Rovewrr. your specific    question does not directly     relate
7132255Sm
                               to the provisiona       of the consent dacree~.

805 Broadway. Suite 312               The consent      decree in queation          deals with the appointment of
Lubbock, TX. 78401-2479        attorneys     to reprment       indigents    in the context of the times vithin
5w-747.5238                    vhich au attoruey must be appointed,               if indeed one must Gappointed
                               at all.     You ask #bout the B            of case in which an attorney must be
009 N. Tenth. Suite B          appointed;     Le..   vh,ether an attorney must be provided for an indigent
McAllen. 7X. 7S501.15S5        in any and x         ml sdemeanor cases.         If your request vere to question
512mS2.4547                    the consent dacrec! itself,          ve could not respond because it has long
                               been the establisheta       policy and practice         of this office     not to render
200 Main Ptua. Suite 400       opinions concerning specific           matters vhich are actually          In litigation
San Antonio, TX. 752052797     or under the retalmed or continuing               jurisdiction      of the courts.      The
51212254191                    consent    decree    reveals      that   in this      case the court has retained
                               jurisdiction       to twsure compliance           vith    its    decree.    Accordingly,
                               although soma of one following           discussion      deals with issues related        to
An Egu4l Opportunity/
Alfirmative Action Employer    the provisions       of the consent decree,            we address      only the general
                               state of the lav --’ not the provisions               of a court order to which the
                               county has agreed.         See generally     Alberti    v. Sheriff     of Rarris County,
                               406 P. Supp. 649, 668 (S.D. Tex. 1975) (federal                  court. in the exercise
                               of    its   -dendent     jurisdiction,       has- wide        discretion    in   ordering
                               defendants      to conply with         state    law and in fashioning           effective
                               relief).

                                    It is vell  eotablished that             in all felonies     and at least in all
                               misdemeanors which are punishable              by confinement     in jail,  an accused




                                                                 p.   1423
Ronoreble     Richard      G. Morales    - Page 2   (JM-312)




has    the   right    to the effecttve assistance     of counsel.        See Gideon v.
;;;J;ght,            372
                      U.S.  335 (1963) ; Attorney           General     O-ion       C-656
            The right   to have the state provide counsel to persons who
cannot afford a lawyer exterds to every case in vhich the litigant                    may
be deprived of his personal liberty          if he is convicted;        the right does
not depend upon labels      of “c~Lvll” -or “criminal.”          Lassiter    v. Depart-
ment of Social Services,      452, U.S. 18, 25 (1981); In re Gault, 387 U.S.
1. 41 (1967); Ridgway v. Btker. 720 F.2d 1409, 1413 (5th Clr.                      1983).
Moreover,     the appointment ,;ji-counsel       to represent       indigents     is re-
quired at every-stage       of a criminal       proceeding     in which substantial
rights   may be affected.     Mempa v. Rhay, 389 U.S. 128, 133 (1967);                  EX
part8    Morse, 591 S.W.2d ZJ,        905 (Tex. Grim. App. 1980); 8x parz
Lemay. 525 S.W.2d 1, 2 (TKK.           Grim. App. 1975);          see also HcGee v.
Estelle,     625 F.2d 1206 (5th Cir.       1980). cert.       denied 449 U.S. 1089;
but see Ross v. Moffitt,          417 U.S.     600, 615-618 (1974)          (after     the
appointment of counsel for an indigent’s              first    appeal of right       from
his conviction      to an intermediate       state   appellate      court,    the state
need not appoint counsel for the indigent’s                subsequent discretionary
appeal     to the stste’s      highest     court    or for      an application         for
certiorari     to the United Stcltes Supreme Court).

     In substantial accord with these rulings,  section                  (a)   of   article
26.04 of the Texas Code of Criminal Procedure provides:

                  Whenever the court determines at an arraignment
               or at    any time prior        to arraignment    that   an
               accused charged with a felony          or -a misdemeanor
               Punishable   by imr;isonment     is too poor to employ
               counsel.   the co&       shall    aoooint   one or more
               practi&     attornlzys to defend-him.       In making the
               determination,    tbz court shall require the accused
               to file   an affidwit,     and may call vitnesses      and
               hear any relevant      testimony    or other    evidence.
               (Emphasis added).

      Your request requires     a determination    of whether this provision
of the Code of Criminal      Procedure    or the constitutional      principles
made applicable    to the states      by the Fourteenth      Amendment of the
United States Constitution     require  that the state provide an indigent
with   an attorney    in all    misdemeanor cases.     Including    those    mis-
demeanors within    the jurisdiction    of justice    courts.    Some of these
misdemeanors do not involve potential       imprisonment.     We conclude that
the state is not required 11~’the Code of Criminal Procedure or by the
United States Constitution     to provide counsel to indigents       accused of
crimes or othervise     subjec.t to court proceedings       when the possible
punishment for the crime ,>‘c proceeding        does not involve     a loss     of
personal  liberty.

        Article       4.11 of the       Code of Criminal     Procedure    provides      that
 “[j]ustices         of the peace       shall have jurisdiction     in   criminal      cases




                                              p.   1424
Honorable     Richard   G. Morales    -’ Page 3     (Jn-312)




there   the    fine     to   be   impowd   by     law   may uot   exceed   tvo   hundred
dollars.”     Justice   courts lsck 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.     Ex part8 Morris,    325 S.W.Zd 386 (Tex. Grim. App. 1959).        In
eases which do not involve potential        imprisonment, the state need not
appoint counsel.

      The present       confusion   :nsy have arisen because justices             of the
peace may, in their         role   as magistrates,    take complaints         and Issue
varrents     in cases vhere their        courts have no jurisdiction           over the
final    resolution     of the catle.     Bx parte Ward, 560 S.W.Zd 660. 662
(Tex. Grim. App. 1978); Attorney             General Opinion C-718 (1966);           see
also Tex. Code Grim. Proc. art.          16.01; Bart v. State,       15 Tex. Ct. AK
2O2(1883);       Attorney   General Opinion C-654 (1966).           Because a state-
appointed attorney for indigents          Is constitutionally      required     at every
stage of a criminal          proceetljlng in which substantial          rights    may be
affected,      the United States       Constitution   may require       that a court-
appointed     attorney    be providled to represent       an indigent        in certain
adversary      proceedings     condu’lted in justice     courts.       This question,
houever, deals with the time, during the criminal procedure,                    at which
an attorney       must first    be ilppointed to represent        an indigent.       The
consent decree in the instant            case deals with this        issue.      You ask
whether the law requires         that an attorney must be appointed to repre-
sent an indigent        in all misdemeanors -- In particular,              misdemeanors
vhich do not involve the pun:lehment of potential             incarceration.

      Thus, the stage at which substantial     rights are affected,    and at
which an attorney must therefore    be appointed in particular      cases,   is
beyond the scope of your recluest.      We conclude only that neither       the
United States Constitution    ror article   26.04 of the Code of Criminal
Procedure requires   that the state provide an indigent vith an attorney
in a case which does not involve       the punishment of potential      incar-
ceration.

     No other statutes or es!:ablished    constitutional    case law requlres
the appointment of an attorrey     to represent    an indigent   accused of a
misdemeanor or other act for which loss of liberty        is not a potential
punishment.   Article 1917, V,!r.C.S..  provides that

                    [jludges   of dis:rict    courts may appoint counsel
               to attend      to the ‘cause of any party who makes
               affidavit     that he :Le too poor to employ counsel to
               attend to the same,         (Emphasis added).

 Simil~arly.   article     1958. V.‘T.C.S..    grants     the same discretion       to
 county judges.        There is no corollary        statute   for justices   of the
 peace.    Moreover, the acts were adopted as part of the civil            statutes
 and are not mandatory.         Sel? Sandoval v. Battikin.        395 S.W.2d 889.
 893-94 (Tex. Civ.       App. --&pus        Christi    1965, writ   ref’d  n.r.e.),
Ronorable   Richard    G. Horales     '- Page 4      (JM-312)




cert.  denied 385 U.S. 901 (1966).   Conrequently,   the state need not
provide a court-appointed at,torney for indigenta  accused of crimes or
other acta for which loss of liberty  la not a possible   punishment.


                                       SUblklARY

                The   state   Is   not  required    to   appoint   an
            attorney    for au indigent defendant in cases which
            do not involve     the possible   punishment   of a loss
            of liberty.



                                                    , Vev/zj&
                                                                        ‘IAu
                                                     JIM     MATTOX
                                                     Attorney General    of Texas

TOMGREEN
First   Assistant     Attorney     General

DAVID R. RICEARDS
Executive Assistant       Attorney     General

ROBERTGRAY
Special Assistant       Attorney     Ganeral

RICX GILPIN
Chairman. Opinion       Comittee

Prepared by Jennifer   Riggs
Assistant Attorney   General

APPROVED:
OPINION COl44ITTEE

Rick Gllpin.   Chairman
Jon Bible
Colin Carl
Susan Garrison
Tony Guillory
Jim noellinger
Jennifer Riggs
Nancy Sutton




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