If I am reading this sweeping opinion by the Supremes correctly (122 S.Ct. 1764), and I pray to the heavens that I am not, then every defendant accused of a Class A or B misdemeanor, regardless of the severity of the offense or whether he/she is indigent or not, is entitled to court-appointed counsel if they are going to be placed on probation, or the Court will not be able to impose the suspended sentence in the event of a probation revocation.

The Defendant in this case was an indigent fellow from (you guessed it) Alabama who represented himself at his trial. The Court never offered court-appointed counsel. He was convincted, got a suspended sentence, and then violated his probation. He argued that the Court couldn't impose the suspended jail sentence on him because he didn't have court-appointed counsel at the trial court level. The Supremes agreed. The opinion began with talk of indigent defendants, but by the time they got to the holding the word "indigent" had mysteriously disappeared, and instead applied to all defendants. (They even had the audacity to use TCCP 26.04(b)(3) in an attempt to show that Texas law supported their holding, but both the majority and the dissent conveniently removed the word "indigent" from the statute when they quoted it.)

I don't know about y'all, but the majority of our misdemeanor cases are resolved through plea bargains involving probation. We gladly offer court-appointed counsel to the indigent folks and the non-citizens, but sometimes they don't want a lawyer. If they are citizens, we let them sign a waiver. If non-citizens, we pretty much force a lawyer on them to explain the possible immigration consequences of their plea. We do not, however, appoint counsel for the gainfully employed townfolk who would just rather sign a waiver, plead guilty to their misdemeanor case, and get probation.

We are a poor border county. (start violin music) Do we now have to appoint an attorney for every single defendant who (1) has the money but doesn't want to use it to hire a lawyer; (2) is indigent but wants to waive their right to counsel and be placed on probation?

The Supremes answer (honestly) is to give everyone lawyers or give everyone Pretrial Diversion. I use PTD, but it is only appropriate in some cases, not all. So do we just open the county coffers for all defendants, or stop offering probation to unrepresented folks, or what?

I am interested to know how other counties are going to handle this problem, especially now that it is budget time. Thanks to anyone who is kind enough to share their thoughts on this issue.

teresa todd
presidio county attorney

The 6th Amendment guarantees the right to counsel, not the right to free counsel if you can pay for your own. I would be shocked if the Supremes in any way intended to require court-appointed counsel to nonindigent criminals. Texas law is consistent with the consitutional requirement, and it sounds like your county is doing just fine by obtaining a written waiver of counsel before proceeding.

In researching this issue for an update of my book Perfect Plea, I didn't find anything to suggest otherwise. You, along with all prosecutors, should be getting a free copy in the mail soon.

Hi Teresa -

It looks to me like the waivers are going to be OK for the "non-indigent", but if you really want to cover yourself, indigent defendants should be provided counsel so they won't have the Alabama v. Shelton issue when their probation is later revoked. My question would be is there really ANY difference in a waiver of counsel signed by an indigent defendant as opposed to one signed by a defendant that can afford counsel? Along with the recent changes to the procedures for appointing counsel (and compensating them) I anticipate budget problems, especially for smaller counties like yours.

Frank

Thanks, John and Frank--I really appreciate your input.