Untitled Texas Attorney General Opinion ( 1953 )

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
RDD:am