What Is a Court-Appointed Attorney?
A court-appointed attorney is one that is appointed by the presiding judge in a court case to represent a party. A majority of court-appointed attorneys are appointed in criminal cases for defendants that do not currently have the means to afford representation. The judge may also appoint a court-appointed attorney in civil suits at the request of parties that are unable to pay for legal representation. Court-appointed attorneys are also commonly referred to as public defenders.
The Sixth Amendment to the United States Constitution provides that defendants have a right to an attorney in criminal proceedings. For those that cannot afford an attorney, the state will appoint one to ensure constitutionality. Representation is mandatory when the defendant is facing incarceration for misdemeanor and felony charges, including juvenile cases . The Texas Penal Code provides that a court must provide counsel to an individual charged with a Class A or Class B misdemeanor if it finds that the defendant is (1) in jail and (2) indigent; which is a fancy word for poor.
Defendants in juvenile proceedings who are faced with the possibility of confinement also have a right to representation. Those that would otherwise not qualify for court-appointed counsel may elect to hire private counsel or explore other funding options. This is the case in a civil law suit. If a judge determines that a conflict of interest exists between the court-appointed attorney and the party in need of representation, the judge may designate any qualified licensed attorney to represent the party.
How to Qualify for a Court-Appointed Attorney in Texas?
In Texas, not every individual who requests a court-appointed attorney will be granted one. Eligibility is determined by the following criteria:
• The accused must be indigent. An in forma pauperis affidavit will be filed with the court to prove that the accused meets financial guidelines set by Texas law. If granted, the presiding judge will sign an order appointing an attorney.
• The crime must be a result of an alleged violation of criminal laws in Texas.
• The accused must lack the financial means to employ counsel.
• The accused must appear before the court and request appointment of counsel.
• The accused must be too incapacitated to adequately represent himself.
• It must be impractical, given the circumstances of the case, to have the accused represent himself.
• The matter at hand must be of a type in which a court may appoint counsel to represent the accused under relevant statute or the Texas Constitution.
• A motion for substitution of counsel must be filed by the accused and granted, unless defense counsel agrees to withdraw.
• The case must involve an offense punishable by death.
• The alleged offense must be a violation of the criminal laws of the State of Texas and is prosecuted by indictment or an information or stipulation in writing.
Steps to Obtaining a Court-Appointed Attorney
In step one of this process, you will need to fill out an Application for Appointment of Attorney Ad Litem. This form is available free of charge from your local courthouse. You will then need to file the application at the District Clerk’s Office in your county or your child’s conservatorship county. After your application is approved, the court will appoint an attorney ad litem to represent your child.
The judges in Texas are required to appoint an ad litem who is knowledgeable about the issues involved in your case, so the other party’s attorney or your attorney cannot also serve as your child’s attorney. Because of this, lawyers that do take court-appointed cases usually have experience in the child protective services field.
After you file the application in your county or your child’s conservatorship county, the court will appoint your child’s lawyer within a few weeks. The attorney will call you for more information and to set a time to meet with you. Based upon the circumstances of your case, the lawyer may advise you to get a criminal background check or a psychological evaluation.
If you wish to get a criminal background check, you will have to pay for it yourself, but it is relatively inexpensive. It can be done online or at your local courthouse for approximately $12.00. If you wish to get a psychological evaluation, the lawyer will write a request letter to a local psychologist. The psychologist will then bill the State of Texas directly for the evaluation after the court appointment is made. The appointment is paid for using tax dollars for indigent cases; therefore, there is no cost to you.
When your lawyer meets with you, he or she will explain the court-appointed process. In many counties, your ad litem will submit an affidavit to the court outlining his or her efforts to contact both parties and the child, any concerns that the attorney has, and any relief requested from the court. This affidavit is similar to an affidavit submitted by a private attorney. If you have any concerns about your child, you can give them to your lawyer at the time of this meeting and they will be included in the report to the court.
Once the attorney ad litem has completed the investigation, he/she will visit with you and will recommend to the judge in that county that the judge enter orders based on that recommendation. The lawyer may attempt to get an agreed order that both parties sign, if the father is in jail, is in the hospital, or there is some other circumstance that prohibits the father from filing a motion for the judge’s consideration. The attorney may ask for a hearing to be held before the judge.
Sometimes the father may contest the child’s safety with the mother, but not want a lawyer appointed to represent his position. If this occurs, the judge can, and must, appoint an attorney for the children to review the interests and safety concerns from both families and to talk to your child about which family he/she would prefer to live with.
How Long Before You Hear Back on Your Application?
After you have submitted your application for a court-appointed attorney, there are a few different things that can happen. One way is that the trial court will order you to a screening. A screening is a meeting with the attorney representing the public defender’s office. The purpose of the screening is to determine if the defendant is indigent and qualifies for representation. For example, in State of Texas v. Morgan, 419 S.W.3d 654 (Tex. App. Waco 2014), the accused was charged with theft of property. He did not have a job and did not provide any proof of income or assets on his application. Because of this, the trial court ordered him to screening and he qualified for representation by the public defender’s office. Another case, Brahm v. State, 121 S.W.3d 575 (Tex. App.—Tyler 2003), the said screening was not performed and the defendants were denied a court-appointed attorney for felony charges because their financial information was incomplete. However, the trial court ordered a hearing subsequent to deny appointment of counsel. They were given an opportunity to supplement their information, but later the trial court sustained an objection to the verification of the information. They were once again denied representation. A screening will help the trial judge determine whether to appoint a court-appointed attorney. It’s important to be prepared and not to miss the appointment . Of course, there is always the possibility that these steps may not be required.
The next step, if ordered by the trial court, is a hearing on the issue of indigence. Hearing is not required but, sometimes, the trial judge will set a hearing on the matter prior to ruling on the application for a court-appointed attorney. In Padilla v. State, No. 03-09-00766-CR, 2010 WL 5396773 (Tex. App.—Austin Dec. 22, 2010), the trial judge set the hearing after the State objected to the indigence affidavit. They heard evidence on the issue including testimony from the applicant herself. The trial court "impliedly" found the accused were not indigent. The applicant was denied representation.
The trial court makes its determination on indigence by either sustaining an objection to the affidavit, denying the application for a court-appointed attorney, or scheduling a hearing. Ultimately, the ruling on your application can be appealed. In Hosner v. State, 112 S.W. 3d 24, 30 (Tex. App.—Fort Worth 2003), after a hearing, the accused was ruled to be indigent and eligible for court-appointed representation. However, the court of appeals reversed and remanded the decision. The trial court’s ruling was reversed on appeal and the accused was eventually coerced into hiring representation on his own (his assets were seized by the State).
Rights and Responsibilities When Working with a Court-Appointed Attorney
As with any attorney-client relationship, there are rights and responsibilities that govern the interaction between you and your court-appointed attorney. For instance, you have the right to insist that your attorney prepare, file and pursue appropriate pleadings in your case. You have the right to communicate with your attorney about your case and you have the right to be made aware of everything your attorney has done to pursue the case.
Similarly, you have the responsibility to cooperate with your attorney as he or she pursues the case on your behalf. It is your duty to respond to your attorney’s requests for information and documentary support. As much as your attorney needs access to information in your case, so too do you have the right to access the information your attorney acts upon to pursue your case.
Options If You’re Denied a Court-Appointed Attorney
Should your request for a court appointed attorney be denied, note that you have recourse, and you should take all of the following steps in succession:
- Notify the courts. If your request for a public defender is denied, then you should immediately file an appeal with the courts stating why there is a need for you to have an attorney. It’s a good idea for you to file this as soon as possible after your request is denied so that the courts will pay special heed to your appeal.
- Seek Help from Legal Aid Organizations. There are a number of legal aid organizations that offer free counsel or at least information about your alternatives if you are unable to obtain a free court appointed attorney. They may offer assistance for civil cases , criminal cases or both. Even if you do not match the typical profile of someone asking for and receiving help from a legal aid organization (like a low-income person who speaks little to no English), it’s possible that they may recommend alternative and affordable resources in an area near you.
- Visit your local law library. Many people are surprised to learn just how much information about their case can be found in a law library. Not every state has a formal class on how to defend yourself in court, but there may be a volunteer program that can match you with an established attorney willing to offer outside perspective and guidance.
- Hire a Private Attorney. If you feel as though you cannot win your case without a court appointed attorney, then you may be forced to turn to a private defender.