BILL ANALYSIS



H.B. 308
By: Park
2-27-95
Committee Report (Unamended)


BACKGROUND

Article 1.13, Code of Criminal Procedure, allows a defendant in a
criminal prosecution, except those in capital felony cases, to
waive the right of trial by jury.  This is conditioned on the
requirement that the waiver be made in person by the defendant and
have the approval of the attorney representing the State.  Until
very recently, the courts had held that this section, with its
requirement that the jury waiver be in writing, was not applicable
to misdemeanor cases.  Yet in 1991, the legislature amended Article
1.13 and changed its application from "any offense classified as a
felony less than capital" to "any offense other than a capital
case."  This language as it is now written and as the subject was
addressed by Texas Court of Criminal Appeals (State v. Carr, 847
SW2d 561 and Townsend v. State, 865 SW2d 469) means that the
attorney requirement applies to misdemeanor cases as well.  The
effect of these judicial decisions coupled with the statute is that
every person is required to have a lawyer as a condition of waiving
the right to a jury trial.

Contrast this with the provision of Art. 27.14, Code of Criminal
Procedure, that allows a person who desires to plead guilty to do
so himself or through a lawyer.  This means that a person does not
need a lawyer if he wants to plead guilty, or if he wants to have
a jury trial but must have one if he wants to waive the right to a
jury trial.

The requirement of attorney representation for waiving jury trial
in even misdemeanor cases places an economic burden on the
prosecuting governmental entity.  The burden springs from the need
to provide attorneys to indigent defendants.

PURPOSE

If enacted, H.B. 308 would allow those charged with a misdemeanor
crime to waive their right to a trial by jury without the
requirement of legal representation.  This change would make
consistent all relevant articles in the Code of Criminal Procedure.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not grant any
additional rulemaking authority to a state department, officer,
institution, or agency.

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Article 1.13(c), Code of Criminal Procedure, by
exempting defendants charged with a crime punishable by fine only
from the requirement of having an attorney in order to waive a
trial by jury.

SECTION 2.  Change in law applies only to trials of offenses
commencing on or after the effective date of this Act.

SECTION 3.  Effective date:  September 1, 1995.

SECTION 4.  Emergency clause.



SUMMARY OF COMMITTEE ACTION

H.B. 308 was considered in a public hearing on February 27, 1995. 
The following person spoke on the bill:

     Robert Kepple, representing the Texas District and County
     Attorneys Association.

H.B. 308 was reported favorably without amendment, with the
recommendation that it do pass and be printed, by a record vote of
8 ayes, 0 nays, 0 pnv, and 1 absent.