Moreno v. State , 1983 Tex. Crim. App. LEXIS 1060 ( 1983 )

TEAGUE, Judge,

concurring.

The majority of this Court in its opinion has failed to consider and discuss whether, when trial counsel was appointed by the presiding judge of the 92nd judicial district court of Hidalgo County, such was a legal act of the district court judge.

Because I cannot find in the record where there was ever a legal appointment of counsel by the trial court, I am unable to agree with either the decision of the Court of Appeals or the majority of this Court. However, the result the majority reaches is a correct one because, without a valid and legal appointment, counsel for appellant has acted at all times in nothing less than in the capacity of a volunteer attorney. He was not entitled to invoke the provisions of Art. 26.04, V.A.C.C.P., concerning the time court appointed counsel is allowed for preparation of trial. Thus, the provisions of Art. 26.04, Id., are not applicable to this cause.

The record of appeal reflects that on February 11, 1981, which date was several weeks before the indictment was returned against appellant, and pursuant to request of the appellant, the presiding judge of the 92nd judicial district court of Hidalgo County, acting solely in that capacity, appointed counsel to represent appellant. An entry on the indictment reflects that a complaint had been filed in the Donna Municipal Court against appellant. We are not apprised of anything concerning either the filing of the complaint or the details of the complaint. We are also not apprised of the status of the case at the time when the appointment was made by the judge of the 92nd district court.

The record further reflects that the indictment in this cause was filed on April 29, 1981, in the 139th judicial district court of Hidalgo County, over which another and different district court judge presides. The record does not reflect that the presiding judge of the 139th judicial district court ever appointed counsel to represent appellant.

Without jurisdiction to make the appointment, such act of the presiding judge of the 92nd judicial district court in appointing counsel was null and void. A district court does not obtain jurisdiction over a cause until an indictment is returned to that court, or there has been a waiver of indictment by the defendant. See King v. State, 473 S.W.2d 43 (Tex.Cr.App.1973). An exception exists where the district court judge is acting as a magistrate. See Ex parte Clear, 573 S.W.2d 224 (Tex.Cr.App.1978). However, in this instance, the record is clear that at the time of the appointment, the district court judge was not acting in any capacity but that of district court judge. The provisions of Articles 26.01 through 26.05, V.A.C.C.P., clearly reflect that a district court judge, when acting solely in the capacity, may not legally appoint counsel until after indictment has been returned or waiver of indictment has occurred in his court.

Thus, in this instance, counsel was never legally appointed to represent appellant. Counsel was therefore acting only in a volunteer capacity, and was only entitled to the time provided by Art. 27.11, Y.A.C.C.P., and no more, in which to prepare for trial. E.g., Oliver v. State, 646 S.W.2d 242 (Tex. Cr.App.1983). Because counsel was not legally appointed to represent appellant, he was not entitled to the time provided by Art. 26.04(b), supra.

Although Art. 26.04, id., does provide that a district court judge may legally appoint counsel prior to arraignment, nevertheless, as an arraignment cannot take place until at least two entire days after the day on which a copy of the indictment has been served on the defendant have expired, or there is a waiver of the two days, see Art. 26.03, supra, a district court judge, who is acting solely in that capacity, is legally powerless to appoint counsel to represent a defendant prior to the time an indictment is filed in his court, or prior to the time a waiver of indictment has occurred.

Had there been a legal appointment of counsel after the date the indictment was filed, then, of course, the ten day provision for preparation of trial would have been from the date of counsel’s formal appointment by the trial court to the date of trial. Lamar v. State, 415 S.W.2d 926 (Tex.Cr. App.1967). To enact and apply any other rule of law, as the majority does, can and will lead to many questions that will not allow for simple resolution.

The majority is, in my view, being unrealistic in holding that “an attorney previously appointed to represent an indigent accused who is confined in jail in lieu of bail on a complaint is entitled to ten days to prepare for trial from the day the indictment or information is filed with the clerk of the trial court.”

Under this holding, counsel who is appointed (lawfully or unlawfully) to represent an indigent defendant is left without any guidelines. What are his legal obligations and responsibilities? Art. 26.04, supra, envisions time for preparation for trial, and not time for preparation to study and prepare for hypothetical situations.

The majority does not consider that the average court appointed attorney in this State is a person who is barely eking out a living practicing law. His time and advice, as Abraham Lincoln long ago admonished, is his stock in trade. Without laying bare the statistics, most court appointed counsel are not paid reasonable attorney fees. They are usually young attorneys just getting started in the profession. Contrary to any other profession, the legal profession has too long looked upon representing indigents as some form of charitable service the profession is required to perform. Instead, the profession should look upon the representation of indigents as only providing the means or persons to perform that service. The majority opinion continues to perpetuate this idealistic but unrealistic philosophy, and I dissent to such action.

The majority literally makes a mountain out of a molehill. Its holding should be simple and not complex, as it is. If an indictment is returned against an indigent defendant, the cause should be placed on the docket of the trial court, and if it is determined that the accused person is indigent, counsel should then be appointed to represent that person. The attorney appointed should be formally notified of the appointment and advised as to when the next court date will be. By law, trial may occur after the expiration of ten days from the date of the formal appointment. Court appointed counsel should not be relegated to the position of having to traipse to the courthouse each day to check to see what, if anything, has happened to a client’s cause, which client he did not choose to represent for a fee that is usually unreasonably low.

The act of the presiding judge of the 92nd judicial district court in appointing counsel at such an early time is to be highly commended. The attorney who was appointed undertook in the best tradition of the legal profession to adequately and effectively represent the appellant, albeit as the record now stands he did so as a volunteer attorney, and was then acting at the behest of the judge of the 92nd judicial district court.

Because counsel was a volunteer attorney, there is no need in this cause to delve into when the ten days provided by Art. 26.04, supra, commences to run. Because counsel was a volunteer attorney and he did not object to going to trial when the trial occurred, the result the majority reaches is correct.

I therefore concur only in the result of the majority opinion.