Does a Texas justice court have to appoint a free lawyer for a poor defendant charged with a fine-only Class C misdemeanor?

Texas AG Opinion JM-977: When a Justice Court Must Appoint a Lawyer

Plain-English summary

Justices of the peace in Harris County were unsure when they had to give a poor defendant a free, court-appointed lawyer, so the county attorney sent the question to the Attorney General. The focus was on Class C misdemeanors, the lowest level of criminal charge in Texas, the kind handled in justice court where the punishment is a fine and not jail.

The short answer: for a plain Class C misdemeanor, the justice court does not have to appoint a lawyer. The reason is straightforward. Back in 1972 the U.S. Supreme Court held in Argersinger v. Hamlin that the right to a court-appointed lawyer kicks in when a conviction can actually put someone behind bars. A Class C misdemeanor could only cost the defendant a fine (capped at $200 at the time), not a day in jail, so the constitutional trigger for appointed counsel was not pulled. Texas statutes did not require it either.

There was one important qualifier. In 1987 the Legislature added article 1.051 to the Code of Criminal Procedure. Section (c) says an indigent defendant is entitled to appointed counsel in "any other criminal proceeding if the court concludes that the interests of justice require representation." The Legislature deliberately left "the interests of justice" undefined, so the justice of the peace has discretion to appoint a lawyer in a fine-only case when the particular circumstances call for it. It is a case-by-case judgment, not an automatic rule.

The county attorney also asked about the situation where a defendant who cannot pay his fine is offered a deferred-payment plan instead of jail. The Attorney General said the same fine-only analysis controls. A defendant cannot be jailed simply because he is too poor to pay a fine, a rule the U.S. Supreme Court laid down in Tate v. Short, and if authorities do wrongly lock someone up over an unpaid fine, the proper fix is a writ of habeas corpus in a court that can issue one (the justice court cannot).

The third question was about peace bond hearings. A peace bond is an order requiring someone to post security and keep the peace toward a person he has threatened. These hearings are usually civil, so a lawyer is not automatically required just to hold the hearing. The catch is what happens next: under article 7.08, a person who cannot give the bond is committed to jail for one year. A year in jail looks a lot like a criminal punishment. Drawing on a West Virginia case, Kolvek v. Napple, and the office's own prior opinion JM-403, the Attorney General concluded that counsel should be appointed for an indigent defendant before that one-year commitment issues, so a court can sort out whether he really is unable to post the security.

The fourth question, whether anything besides being poor could require appointed counsel, went unanswered. The county attorney had not briefed it, and a state statute (then section 402.043 of the Government Code) requires opinion requests to be briefed, so the Attorney General declined to reach it.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The right-to-counsel framework has moved on since 1988. Later U.S. Supreme Court decisions addressed suspended jail sentences in fine-only cases, and Texas overhauled its indigent-defense system in the early 2000s, adding detailed appointment procedures and standards. The dollar figure for a Class C misdemeanor fine and the statutory cross-references cited here have also changed. Anyone dealing with appointment of counsel in a Texas justice or municipal court today should look to the current Code of Criminal Procedure and indigent-defense statutes rather than the article and section numbers used here.

Who this opinion affected (as of 1988)

Justices of the peace: The opinion told them they were not required to appoint counsel for a run-of-the-mill fine-only Class C misdemeanor, but that they had discretion to do so "in the interests of justice," and should appoint counsel before committing an indigent to jail for a year on a failed peace bond.

Indigent defendants: The opinion confirmed that being charged with a fine-only offense did not by itself entitle them to a free lawyer, and that the remedy for being jailed over an unpaid fine was a habeas corpus proceeding, not an appeal in justice court.

County officials: The opinion gave Harris County guidance on when appointed-counsel costs would and would not arise in justice court practice.

Common questions

Does a Texas justice court have to give a poor defendant a free lawyer for a Class C misdemeanor?
No, not automatically. In this opinion the Attorney General concluded that because a Class C misdemeanor carried only a fine and no jail time, counsel need not be appointed unless the justice of the peace concludes that the interests of justice require it in the particular case.

What does "interests of justice" mean here?
The Legislature did not define it. Article 1.051(c) leaves it to the justice court to decide case by case whether a fine-only defendant should get appointed counsel.

Can someone be jailed just for being unable to pay a fine?
No. The opinion relied on the U.S. Supreme Court's decision in Tate v. Short, which holds that a defendant may not be imprisoned because he is too poor to pay his fine. The remedy for a wrongful jailing is a writ of habeas corpus.

Is a lawyer required at a peace bond hearing?
Not at the initial hearing, which is civil in nature. But the opinion concluded counsel should be appointed for a defendant who cannot post the required bond before he is committed to jail for a year under article 7.08, because that year in jail is at least quasi-criminal.

Background and statutory framework

The questions arose from S.B. 1109, which added article 1.051 to the Code of Criminal Procedure (Acts 1987, 70th Leg., ch. 979, section 1, effective September 1, 1987). Article 1.051(a) entitles a defendant in a criminal matter to be represented by counsel in an adversary judicial proceeding. Subsection (c) provides that an indigent defendant is entitled to appointed counsel in any adversary judicial proceeding that may result in punishment by confinement, and in any other criminal proceeding if the court concludes that the interests of justice require representation.

On the first question, the constitutional baseline is Argersinger v. Hamlin, 407 U.S. 25 (1972), which held that the Sixth Amendment right to counsel, applied to the states through the Fourteenth Amendment under Gideon v. Wainwright, 372 U.S. 335 (1963), is not limited by the classification of the offense, but that no accused may be deprived of his liberty as the result of any prosecution in which he was denied counsel. Argersinger itself observed that every judge will know when a trial starts whether imprisonment may be imposed. Attorney General Opinion JM-312 (1985) had concluded that neither case law nor statute requires appointment of counsel for an indigent accused of a misdemeanor in justice court, because a justice court lacks jurisdiction to finally determine any criminal action punishable by a fine exceeding $200 or by imprisonment. Because imprisonment is not a direct consequence of a Class C misdemeanor conviction (a fine not to exceed $200), counsel need not be appointed unless the court determines that the interests of justice require it.

On the third question, the same analysis controls the deferred-payment scenario. Article 42.15 of the Code of Criminal Procedure provides for deferral of a fine assessed on conviction of a Class C misdemeanor (Attorney General Opinions JM-898 (1988) and JM-526 (1986)). At the end of the deferral period the justice of the peace may impose the fine, but because the penalty is a fine, Tate v. Short, 401 U.S. 395 (1971), prohibits imprisoning a defendant who is too poor to pay it. The Court of Criminal Appeals recognized habeas corpus relief in such circumstances in Ex parte Minjares, 582 S.W.2d 105 (Tex. Crim. App. 1978). The office's earlier analysis in Attorney General Opinion JM-403 (1985) had drawn on Lassiter v. Department of Social Services, 452 U.S. 18 (1981), In re Gault, 387 U.S. 1 (1967), and Ridgway v. Baker, 720 F.2d 1409 (5th Cir. 1983) (father imprisoned for civil contempt in a nonsupport proceeding despite an uncontroverted assertion of indigency), together with the office's opinion JM-176 and Texas contempt cases including Ex parte Cardwell, 416 S.W.2d 382 (Tex. 1967), and Ex parte Davis, 344 S.W.2d 153 (Tex. 1961), for the principle that the labels "civil" and "criminal" do not control due process. JM-312 had also noted that a district judge may appoint counsel for a party too poor to employ one (now section 24.016 of the Government Code, formerly article 1917, V.T.C.S.), and a county judge has the same discretion (now section 26.049, formerly article 1958), but there is no corollary statute for justices of the peace in civil cases.

On the second question, article 7.03 of the Code of Criminal Procedure authorizes a magistrate to require a peace bond, and article 7.13 provides that if the evidence shows the accused committed an offense, he shall be tried for it. A peace bond hearing is usually civil, because there is no direct criminal sanction for violating the bond (the only remedy being a suit to recover on it, per Attorney General Opinion O-6669 (1945)). The requirement to make a bond does not by itself trigger the right to counsel, any more than setting an appearance bond in a misdemeanor does (article 17.20 allows peace officers to set bonds in misdemeanor cases). The problem arises under article 7.08, which commits a defendant who fails to give the bond to jail for one year. In Kolvek v. Napple, 212 S.E.2d 614 (W. Va. 1975), a defendant unable to post a peace bond under a similar statute was committed for a year; the court held that applying the statute to an indigent who cannot provide surety violates equal protection, and remanded with instructions to allow the defendant to go on his own recognizance. Because the one-year commitment is at least quasi-criminal, the Attorney General concluded that federal constitutional law requires appointed counsel before such a commitment issues, so counsel can seek habeas corpus in a court with jurisdiction to issue the writ (a justice court cannot, under article 11.05).

On the fourth question, whether circumstances other than indigence would require appointed counsel, the county attorney did not brief the question. It therefore did not comply with section 402.043 of the Government Code (formerly article 4399, V.T.C.S.), and the Attorney General did not answer it (Attorney General Opinion JM-727 (1987)).

Citations

Statutory authority:

• Article 1.051, Texas Code of Criminal Procedure (right to and appointment of counsel; interests-of-justice standard)
• Articles 26.04 and 26.05, Texas Code of Criminal Procedure (appointment and compensation of counsel for indigents)
• Article 42.15, Texas Code of Criminal Procedure (deferral of a fine)
• Articles 7.03, 7.08, and 7.13, Texas Code of Criminal Procedure (peace bonds; one-year commitment on failure to give bond)
• Article 11.05, Texas Code of Criminal Procedure (courts with habeas corpus jurisdiction)
• Article 17.20, Texas Code of Criminal Procedure (peace officers may set bonds in misdemeanor cases)
• Section 24.016, Government Code (formerly article 1917, V.T.C.S.) (district judge may appoint counsel for the poor)
• Section 26.049, Government Code (formerly article 1958, V.T.C.S.) (county judge's like discretion)
• Section 402.043, Government Code (formerly article 4399, V.T.C.S.) (opinion requests must be briefed)

Cases:

• Argersinger v. Hamlin, 407 U.S. 25 (1972)
• Gideon v. Wainwright, 372 U.S. 335 (1963)
• Tate v. Short, 401 U.S. 395 (1971)
• Ex parte Minjares, 582 S.W.2d 105 (Tex. Crim. App. 1978)
• Lassiter v. Department of Social Services, 452 U.S. 18 (1981)
• In re Gault, 387 U.S. 1 (1967)
• Ridgway v. Baker, 720 F.2d 1409 (5th Cir. 1983)
• Ex parte Cardwell, 416 S.W.2d 382 (Tex. 1967)
• Ex parte Davis, 344 S.W.2d 153 (Tex. 1961)
• Kolvek v. Napple, 212 S.E.2d 614 (W. Va. 1975)

Prior Attorney General opinions referenced: JM-176, JM-312 (1985), JM-403 (1985), JM-526 (1986), JM-727 (1987), JM-898 (1988), O-6669 (1945).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-977
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0977.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

November 8, 1988

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-977

Re: Appointment of counsel for indigent defendants under article 1.051(c), Texas Code of Criminal Procedure, and related questions (RQ-1379)

Dear Mr. Driscoll:

You state that the questions you ask have been prompted by inquiries from justices of the peace in Harris County. You note that the primary focus of your concern is the appointment of counsel for defendants charged with class C misdemeanors. Consequently, our treatment of your questions will be limited to cases in the justice court. You ask:

1. In what cases should the court appoint counsel to represent indigent defendants?

2. Whether appointment of counsel for indigent defendants is appropriate in peace bond hearings?

3. Whether a defendant, who is committed to jail and applies for a deferred payment plan to secure release from jail, is entitled to have an attorney appointed for him?

4. Whether there are circumstances other than indigence that would require court appointed counsel?

It appears that your questions have resulted from the enactment of S.B. 1109 (now article 1.051 of the Code of Criminal Procedure) by Acts 1987, 70th Leg., ch. 979, section 1, at 3321, effective Sept. 1, 1987. Article 1.051 of the Code of Criminal Procedure provides in pertinent part:

(a) A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding.

(b) For the purposes of this article and Articles 26.04 and 26.05 of this code, 'indigent' means a person who is not financially able to employ counsel.

(c) An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation. If an indigent defendant is entitled to and requests appointed counsel, the court shall appoint counsel to represent the defendant as soon as possible.

(d) An eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in the following appellate and postconviction habeas corpus matters:

(1) an appeal to a court of appeals;

(2) an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted;

(3) a habeas corpus proceeding if the court concludes that the interests of justice require representation; and

(4) any other appellate proceeding if the court concludes that the interests of justice require representation. (Emphasis added.)

Underlying principles of law relative to your first and third questions have been addressed by numerous opinions of federal and state courts as well as opinions of this office.

In Argersinger v. Hamlin, 407 U.S. 25 (1972), the United States Supreme Court held that the right of an indigent defendant in a criminal trial to the assistance of counsel guaranteed by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment in Gideon v. Wainwright, 372 U.S. 335 (1963), is not limited by the classification of the offense or by whether or not a jury trial is required. The court concluded that an accused may not be deprived of his liberty as the result of any criminal prosecution, whether felony or misdemeanor, in which he was denied the assistance of counsel. In Argersinger the court noted that "every judge will know when the trial starts that no imprisonment may be imposed" and "the run of misdemeanors will not be affected by today's ruling." Argersinger, 407 U.S. at 40. (Emphasis added.)

In Attorney General Opinion JM-312 (1985), it was concluded that neither constitutional case law nor the statutes require the appointment of an attorney to represent an indigent accused of a misdemeanor in justice court since the "justice court lacks 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." Attorney General Opinion JM-312, at 3 (1985).

The United States Supreme Court held that a defendant may not be imprisoned because he is too poor to pay his fine in Tate v. Short, 401 U.S. 395 (1971). Citing Tate v. Short, the Texas Court of Criminal Appeals concluded that a defendant was entitled to relief in a habeas corpus proceeding under these circumstances. Ex parte Minjares, 582 S.W.2d 105 (Tex. Crim. App. 1978). This raises the question of whether counsel should be appointed to represent an indigent defendant accused of a class C misdemeanor in justice court to avert the possibility that the defendant who is too poor to pay his fine be imprisoned in violation of Tate v. Short. Neither Argersinger nor state statute require that counsel be appointed in class C misdemeanors to insure that there will not be instances when authorities may illegally restrain a defendant who is unable to pay his fine. We believe that this is the very type of situation where the appropriate remedy is the writ of habeas corpus. See Code Crim. Proc. art. 11.01 et seq. In Attorney General Opinion JM-403 (1985), it was noted that article 26.05 of the Code of Criminal Procedure provides for payment of counsel appointed to represent indigent defendants in habeas corpus proceedings.

The Legislature in S.B. 1109 (now article 1.051 of the Code of Criminal Procedure) provided an additional basis for appointment of counsel for an indigent defendant in a criminal case. Acts 1987, 70th Leg., ch. 979, section 1, at 3321 (effective September 1, 1987). Section (c) of article 1.051 provides that an indigent defendant is entitled to have an attorney appointed in "any other criminal proceeding if the court concludes that the interests of justice require representation." (Emphasis added.) The legislature did not set any guidelines for a court to determine when counsel is to be appointed in "the interests of justice." The legislature undoubtedly concluded that this is a matter that necessarily requires resolution on a case-by-case basis. Since section (c) provides that this authority is given the court in "any other criminal proceeding," the justice court would appear to have discretion to appoint counsel for an indigent defendant in a class C misdemeanor case when the justice of the peace determines that the interest of justice requires such appointment. [Footnote 1]

The matter of appointment of counsel for indigent defendants in civil cases was reviewed in Attorney General Opinion JM-403 (1985). In Attorney General Opinion JM-403 it was stated:

This right to have the state provide counsel extends to every case in which the litigant may be deprived of his personal liberty if he loses; the right does not depend merely upon labels of 'civil' or 'criminal.' Lassiter v. Department of Social Services, 452 U.S. 18, 25 (1981); In re Gault, 387 U.S. 1, 41 (1967); Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983); see Attorney General Opinion JM-176. The Fifth Circuit in Ridgway applied this rule to an accused father who was denied counsel and condemned to imprisonment for civil contempt in a nonsupport proceeding despite an uncontroverted assertion of indigency. See 720 F.2d at 1413.

We considered the nature of 'civil' contempt proceedings at length in Attorney General Opinion JM-176 and concluded that '[w]hether classified as civil or criminal, contempt proceedings invariably invoke certain aspects of the criminal process.' The Texas Supreme Court has declared that 'a contempt proceeding is unlike a civil suit, has some of the incidents of a trial for crime, and is quasi-criminal in nature.' Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex. 1967) (citing Ex parte Davis, 344 S.W.2d 153 (Tex. 1961)). Consequently, proceedings in contempt cases should conform as nearly as possible to those in criminal cases. Ex parte Byram, 662 S.W.2d 147 (Tex. App. - Fort Worth 1983, no writ); Deramus v. Thornton, 333 S.W.2d 824, 829 (Tex. 1960); Ex parte Stanford, 557 S.W.2d 346, 348 (Tex. Civ. App. - Houston [1st Dist.] 1977, no writ); see also Ex parte Wilson, 559 S.W.2d 698, 701 (Tex. Civ. App. - Austin 1977, no writ). Thus, state law as well as federal law recognizes that the mere labels of 'civil' or 'criminal' should not control due process considerations.

Attorney General Opinion JM-403, at 1-2 (1985).

In Attorney General Opinion JM-312 (1985), it was noted that then article 1917, V.T.C.S. (now section 24.016 of the Government Code), provides that a district judge may appoint counsel to represent any party who is too poor to employ counsel. Similarly then article 1958, V.T.C.S. (now section 26.049 of the Government Code), grants the same discretion to county judges. However, it was pointed out that there is no corollary statute that would enable justices of the peace to appoint counsel in civil cases. It was further noted that the provisions relative to district and county judges were adopted as part of the civil statutes and are not mandatory. While there is no statute authorizing justices of the peace to appoint counsel in civil proceedings, federal constitutional laws as construed by the United States Supreme Court would nevertheless require appointment of counsel in a civil case pending in justice court when the litigant may be deprived of his personal liberty if he loses. Perhaps the absence of a statutory proceeding stems from the Legislature not envisioning a civil proceeding in justice court which might result in the losing party being deprived of his personal liberty.

In your first question you ask in what cases the court should appoint counsel to represent indigent defendants. Since imprisonment is not a direct consequence of a class C misdemeanor conviction (fine not to exceed $200), counsel need not be appointed for an indigent defendant unless the court determines that the "interests of justice" require such appointment.

Your third question is prompted by the following scenario:

The third question presented deals with the special arrangement where the defendant is permitted to pay his assessed fines by way of a deferred payment plan, instead of being confined for default in paying said fines.

You call attention to article 42.15 of the Code of Criminal Procedure providing for the deferral of a fine assessed upon conviction of a class C misdemeanor. See Attorney General Opinion JM-898 (1988). In your scenario you assume that such a deferral procedure may be the only alternative to confinement in jail for a defendant who is unable to pay his fine. Article 42.15 of the Code of Criminal Procedure provides for a form of probation available to defendants convicted of offenses with a maximum punishment of a fine not to exceed $200. Attorney General Opinion JM-526 (1986). At the end of the probationary or deferral period the justice of the peace may impose the fine if it is determined that the defendant has not complied with the requirements imposed under article 42.15. Since the penalty is a fine, Tate v. Short prohibits the imprisonment of a defendant who is too poor to pay his fine. Further, our conclusion to your first question that the justice court is not required to appoint counsel to represent indigent defendants charged with class C misdemeanors unless the court determines "that the interests of justice require such representation" appears to be dispositive of this inquiry.

You next ask whether appointment of counsel for indigent defendants is appropriate in peace bond hearings. Article 7.03 of the Code of Criminal Procedure authorizes a magistrate to require a person to make a bond conditioned that he will keep the peace toward the person the magistrate has found the accused has threatened. If it appears to the magistrate from the evidence presented at the hearing that the accused has committed an offense, article 7.13 of the Code of Criminal Procedure provides that he shall be tried for the offense. A peace bond hearing is usually in the justice courts and is civil in nature because there is no direct criminal sanction for its violation since it is a procedure commonly employed prior to the commission of a criminal act. Reamey, Legal Remedial Alternatives for Spouse Abuse in Texas, 20 Houston L. Rev. 1279, at 1287 (1983). [Footnote 2] In Attorney General Opinion O-6669 (1945), it was noted that the only remedy the state has against one who breaches a peace bond is a suit to recover on the bond.

The fact that a person may be required to make a bond to keep the peace would not appear to trigger the necessity for the appointment of counsel. If this were so every time an appearance bond is set in a class C misdemeanor, counsel would have to be appointed. (Article 17.20 of the Code of Criminal Procedure allows peace officers to set bonds in misdemeanor cases.) Neither the constitutional requirement for appointment of counsel set forth in Argersinger nor the state statutes require such appointment. The problem in the peace bond procedure arises when the defendant fails or is unable to give the security for the bond set in the peace bond hearing. Article 7.08 of the Code of Criminal Procedure provides:

If the defendant fail to give bond, he shall be committed to jail for one year from the date of the first order requiring such bond.

The commitment of a person to jail for a term of one year takes on the incidents of a criminal procedure. In Kolvek v. Napple, 212 S.E.2d 614 (W. Va. 1975), the defendant was committed to jail for a period of one year when he was unable to post the required peace bond under a similar statute. The court held that while the peace bond statute was not unconstitutional on its face, the magistrate's application of the statute requiring the defendant to post the required peace bond violates the equal protection clause where he is indigent and cannot provide such surety. The cause was reversed and remanded to the magistrate with instructions that the magistrate permit the defendant to go on his own recognizance to keep the peace.

While the posting of a bond to keep the peace where there has been no alleged violation of the law may be civil in nature, the commitment for a term of one year in prison is at the very least quasi-criminal in nature. See Attorney General Opinion JM-403 (1985). Whether it be characterized as criminal or civil, it would appear that federal constitutional law requires that counsel be appointed before a commitment issues ordering the defendant to jail for a term of one year. We believe the issuance of such a commitment bears such similarity to a criminal procedure as to require the justice of the peace to appoint counsel "in the interests of justice" under article 1.051 of the Code of Criminal Procedure. If the justice of the peace fails to reduce the amount of bond to an amount the defendant can make, or declines to allow the defendant to go on his own recognizance if he is unable to make bond, counsel is in place to obtain a writ of habeas corpus in another court. (A justice court does not have jurisdiction to issue the writ of habeas corpus under article 11.05 of the Code of Criminal Procedure.)

In your last question, you inquire whether there are circumstances other than indigence that would require appointed counsel. You do not brief this question in the memorandum of law you have submitted. Consequently, the question is not in compliance with section 402.043 of the Government Code (formerly article 4399, V.T.C.S.) and we have not attempted to answer the same. See Attorney General Opinion JM-727 (1987).

SUMMARY

Counsel need not be appointed to represent an indigent defendant charged with a class C misdemeanor unless "the court concludes that the interests of justice require such representation." Since the penalty cannot exceed a $200 fine in an article 42.15 Code of Criminal Procedure proceeding providing for the deferral of a fine upon conviction, our answer to your first question is dispositive of your third inquiry. While it is not necessary for the justice court to appoint an attorney at the initial peace bond hearing, counsel should be appointed for a defendant who has failed to give the required bond before he is committed to jail for a period of one year in order that a determination may be made as to whether the defendant is financially able to post the required security.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

[Footnote 1] The bill analysis to S.B. 1108 focuses on provisions other than the instances in which counsel should be appointed. The purpose of S.B. 1108 is stated as follows: "To provide a uniform state-wide system for determining indigency and for permitting waiver of counsel; permitting the Court to order indigent defendants to make partial payment of court-appointed attorney fees; removing the maximum limit the Court can order for the payment of doctors and other expert witnesses; and removing the minimum the court can pay appointed counsel." Bill Analysis, Tex. S.B. 1108, 70th Leg. (1987).

[Footnote 2] The Reamey article addresses the widespread use of the peace bond procedure in spousal abuse cases: "Peace bonds have often been issued in cases of family violence as an inexpensive and readily available deterrent. . . . As a practical matter, any remedy in the field of spousal abuse must be available quickly and inexpensively. Its availability must be widely known, and it must address the needs of the spouse requiring abuse protection. It is just this availability that has metamorphosed the peace bond into a common protective device for spousal assault. Because peace bonds are usually administered by justice courts, they are easily accessible. The geographical distribution of such courts makes them the most convenient forum for judicial intervention. In addition, the informality associated with the justice court encourages pro se filing and prosecution of petitions with minimal court costs. The resulting frequency of peace bonds as a violence control device insures that victims will know of the existence of this remedy and will seek it out in time of need. . . . In spite of the difficulties inherent in the peace bond procedure and pattern of sanctions, the peace bond remains somewhat effective as a deterrent. The efficacy of any legal protection depends in large part upon its ability to shape behavior, and in this respect the peace bond has built an admirable record upon a weak foundation. Simply stated, it is the belief of the victim and the abuser in the procedure that makes it work. While hardly an imposing body in the context of the entire legal system, the justice court may well represent the only visible representative of social order with which the parties have been involved. Therefore, one cannot underestimate the effectiveness of such orders as practical and useful tools in deterring domestic violence, especially when divorce is not a desirable alternative." 20 Houston L. Rev., at 1287-1289 (footnotes in text omitted and emphasis added).