holding that counsel was not ineffective merely because he was suspended from the practice of law for nonpayment of State Bar dues as counsel continued to be licensed during the suspension and his status was reinstated to that which he occupied prior to the delinquency
How later courts described this case
- holding that counsel was not ineffective merely because he was suspended from the practice of law for nonpayment of State Bar dues as counsel continued to be licensed during the suspension and his status was reinstated to that which he occupied prior to the delinquency
- overruling Martinez v. State, 167 Tex.Crim. 97, 318 S.W.2d 66 (1958), where death penalty was reversed when trial counsel was suspended for failing to pay State Bar dues although no complaint had been asserted about counsel’s incompetence
- holding that failure to pay bar dues does not constitute denial of counsel
- Although a delinquent attorney is “prohibited” from practicing law, “[h]e only has to pay his dues *** to resume his status as a ‘practicing lawyer,’ ” and he has not thereby become unlicensed (emphasis omitted)
Written by the judges who cited it.
Distinguished
Distinguished by Satterwhite v. State, 1997 Tex. App. LEXIS 4622 (1997)
The Hill and Cantu cases are distinguishable from this case.
The opinion
ON APPELLANT’S MOTION FOR REHEARING
WOODLEY, Judge.
The writer’s views as to Martinez v. State, 167 Tex.Cr.R. 97 , 318 S.W.2d 66 , are set out in his dissent therein.
If, as has been suggested, the reversal of the conviction in Martinez v. State was due in part at least to the fact that no bills of exception were preserved, or was for any reason other than that counsel appointed to defend was not a member of the State Bar because he had been suspended for failure to pay his dues, the Martinez case is not authority for setting aside these convictions.
This is so because the records do not reflect that Desmond E. Gay, who was appointed to represent appellant, was not qualified to represent defendants in criminal eases and there is nothing in the records before us in these appeals which suggests that Mr. Gay failed in any way to adequately and competently advise appellant and represent him in his trial before the court on his pleas of guilty. The only attack upon his qualifications is bottomed upon his failure to timely pay his bar dues.
*906 If Martinez v. State, 167 Tex.Cr.R. 97 , 318 S.W.2d 66 , may be construed as requiring the setting aside of a conviction upon a plea of guilty before the court upon a showing that counsel appointed by the court to represent him was delinquent in payment of his bar dues, we remain convinced that it should be overruled.
In addition to the ground for reversal common to both appeals, it is now contended that the conviction for felony theft with punishment assessed at 10 years (before us in Cause No. 38,164) must be reversed because there is no showing in the record that appellant and his attorney were given the statutory time in which to prepare for trial, in violation of appellant’s rights under Art. 494, Vernon’s Ann.C.C.P., and his right to counsel for his defense under the Sixth Amendment to the Constitution of the United States was therefore denied.
In support of this contention advanced for the first time on motion for rehearing, appellant cites Art. 494, V.A.C.C.P. and the cases of Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775 ; Bennett v. State, Tex.Cr.App., 382 S.W.2d 930 ; and Ex parte Cooper, Tex.Cr.App., 388 S.W.2d 939 . The writer dissented in the latter case.
The state correctly points out that the formal bills of exception appearing in the transcript were not filed within the 90 days allowed by statute, and the record is silent as to when the trial judge appointed counsel to represent the defendant in the felony theft case.
It follows that there is no affirmative showing in the record that appellant and his counsel were not allowed 10 days to prepare for trial in the felony theft case and no affirmative showing that such time was not waived in writing. Also there is no affirmative showing that the waiver signed by appellant and his counsel bearing only the number of the burglary case was not intended to apply to both cases tried before the court the same day upon stipulated facts and agreement as to the punishment to be recommended.
Appellant’s motions for rehearing are overruled.