McKinzie v. Ellis, 18551.
Decision Date | 23 February 1961 |
Docket Number | No. 18551.,18551. |
Parties | Chester McKINZIE, Appellant, v. O. B. ELLIS, Director, Texas Department of Corrections, Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Sam S. Minter, Houston, Tex., for appellant.
J. G. Davis, Huntsville, Tex., for appellee.
Before RIVES and WISDOM, Circuit Judges, and DAWKINS, Jr., District Judge.
On February 24, 1953, Chester McKinzie was indicted in Dallas County, Texas, for the crime of robbery by firearms, a capital felony.1 Two days later A. A. McDaniel was appointed by the Texas court to represent McKinzie. At that time, and at all times material to this case, McDaniel was not a member of the Bar of the State of Texas, having been dropped from the rolls for nonpayment of dues. The cause came on to be heard on March 18, 1953. The trial docket reveals that both sides announced ready. Thereafter, the district attorney moved to strike that portion of the indictment which charged that the robbery was committed by the use and exhibition of firearms. The effect of this motion was to reduce the offense with which McKinzie was charged to robbery by assault, a noncapital felony.2 The jury was then selected and the trial began. The defendant entered a plea of guilty before the jury and the jury fixed his sentence at 25 years confinement in the state penitentiary.
McKinzie here seeks to test by writ of habeas corpus the constitutionality of his confinement.3 His sole allegation is that the appointment of McDaniel to represent him was insufficient compliance with the Fourteenth Amendment's "due process" requirement and, thus, the sentence under which he is presently confined is invalid.
At the outset, we have a dispute over whether we deal here with a capital or a noncapital case. The State vigorously argues that this is a noncapital case. Its argument was accepted in the State court and in the federal district court. In denying McKinzie's petition for habeas corpus, the State court noted, "though petitioner was charged with a capital offense, he was tried for a noncapital felony," and concluded he had no right to have counsel appointed absent a showing of prejudice. The court below took much the same view. 4 We take a slightly different view of the case.
Until the time that the "firearms" allegation was struck from the indictment, Chester McKinzie stood charged with a capital crime. As one so charged, he was constitutionally entitled to the assistance of counsel not only at his forthcoming trial, but at such time prior to trial as was necessary for adequate preparation of his defense.5 In this case, we think petitioner had a right to the assistance of counsel at the time the defense strategy was evolved. That strategy was to plead guilty to the lesser offense, and it was evolved at a time when McKinzie was still charged with a capital crime. We think that A. A. McDaniel was not such counsel as the Constitution required to be appointed to assist McKinzie.
The Texas State Bar Act, Section 3,6 provides:
"All persons who are now or who shall hereafter be licensed to practice law in this State shall constitute and be members of the State Bar, and shall be subject to the provisions hereof and the rules adopted by the Supreme Court of Texas; and all persons not members of the State Bar are hereby prohibited from practicing law in this State."
Article IV, Section 5,7 of the rules promulgated by the Supreme Court of Texas, reads as follows:
The record in this case establishes that A. A. McDaniel did not pay his membership fees to the State Bar of Texas for the years 1951, 1952, and 1953 until September 1953, six months after the trial of Chester McKinzie. There is no dispute that, at all times material hereto, McDaniel had been dropped from the rolls of the Texas State Bar and, by virtue of that fact and the State Bar Act, he was "prohibited from practicing law in this State."
We think that where due process requires that a defendant be represented by counsel, counsel so appointed must be authorized to practice in the court where the trial will occur. A. A. McDaniel was not so authorized.
The State would argue that dropping a man from the rolls of the State Bar for nonpayment of dues is a sanction to enforce a mere revenue-raising measure and "* * * his delinquency in the payment of his bar dues in no wise detracted from or affected his representation of his client."8 While it is true that some licensing statutes are solely revenue-raising measures,9 the Texas State Bar Act and the rules promulgated thereunder10 are a comprehensive code designed to regulate the practice of law "so that the public welfare will be served and promoted."11 As to the dues requirement in particular, it would not be unreasonable to assume that one of its purposes was to eliminate those who, though trained in law, were not interested in practicing the profession. Many graduates of law school never embark on the practice of law, and many who do eventually gravitate to other callings. A dues-paying requirement would certainly cull some of these from the ranks of the legal profession. Thus, while one purpose of the dues requirement was certainly the raising of revenue, we cannot say that that was its only, or even its primary,...
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