What is a Court Appointed Lawyer?
An attorney may be court-appointed for one of many reasons. Most often, a court-appointed attorney will exist in criminal matters in which the defendant is unable to pay for an attorney. In this situation, the court will appoint an available, qualified, and practicing attorney like T. Christopher Lewis to represent the defendant at no charge. A court-appointed attorney may also exist in civil matters in which a party is unable to retain counsel. This might be due to the complexity of the case or simple lack of funds to retain the services of an attorney. Certain areas of civil law, such as probate, have a presumption in favor of attorney representation.
In Texas, while an attorney may be appointed at the request of a party in a civil matter, the statute governing court-appointed attorneys for indigents in Texas, Texas Civil Practice and Remedies Code Section 24.016, makes clear that an attorney serving as court-appointed counsel is not entitled to compensation from the State of Texas or any political subdivision of the state for his or her representation. Therefore, if a conflict has been taken against the appointment of a particular attorney in a court system, but the funds are not available to pay a contracted or retained attorney, a presumption exists favoring that an attorney should still be appointed but that the attorney will not be compensated. When requesting counsel for an indigent party—typically a petition for the indigent status must be filed after the lawsuit has already been filed—there is no guarantee or certain level of expectations of quality of legal services by a court-appointed attorney. A court-appointed attorney does not have the duty of providing legal services at the level that would be provided by a retained , compensated appellate attorney. However, an attorney appointed to represent a party or potentially a non-represented party as an amicus will still attempt to fulfill their obligations under applicable rules and with the goal of complying with ethical standards.
In considering the appointment of a court-appointed attorney for an indigent party in Texas, there are some requirements that must be met. First, the party that seeks appointment of an attorney must sign several documents revealing financial status, geographic area of the subject matter, case type, and other factual information surrounding the case. The judge will then determine if the party is indigent, and therefore, entitled to representation. A conflict may be taken against the appointment of a particular attorney, which would leave open the questions of what recourse may be had with a party who is unhappy with the services performed by a court-appointed attorney.
It is also important to know that once a court appoints an attorney, which may or may not be from an outside panel of attorneys, there will not be a review of the work performed by the attorney, to the extent of quality or else how the attorney manages the case in general. The client has to be satisfied with the work performed in order to seek a remedy against the attorney for damages.
Who Can Get a Court Appointed Lawyer in Texas
Not everyone is entitled to a court-appointed attorney in Texas. There are eligibility requirements that must be fulfilled before the court will appoint an attorney for free. In order to meet the eligibility criteria, a person must satisfy the following:
Texas law is very clear about the requirements for free representation. In Texas, a person qualifies if they cannot afford to pay for a lawyer. The test the court will apply in deciding whether a person qualifies for an appointed attorney is commonly referred to as the "indigent" test. With minor court cases, or minor family law cases, the test is that the person cannot afford the cost of hiring a competent private attorney. At the higher end of the criminal process, the person applying for a court-appointed attorney must have assets less than $5,000. The person’s income must be less than 125% of the federal poverty guideline. If you are unemployed or receive disability, unemployment payments, social security or veteran’s benefits, the Court will presume you are indigent and you may qualify for a court-appointed attorney.
An appellate court may appoint an attorney for free in a failed appeal, a writ of mandamus or a mandamus proceeding if the appeal appears to have merit. If the person meets the guidelines, and the appeal has legal merit, the court will appoint the person a free appellate lawyer.
Applying for a Court Appointed Lawyer
The application process to obtain a court appointed attorney is set out in the Texas Code of Criminal Procedure, which is applicable in all counties in Texas. The process will vary somewhat depending on the county of your arrest, so the first step is to know which Texas county you are in.
If you need a court appointed attorney you will start by filing two (2) forms with the district clerk in the county you are prosecuted. This filing process should be done immediately after the arrest warrant is issued for felony charges or when the citation is served with a class C misdemeanor offense. The forms are known as the Request for Appointment of Counsel Form and the Financial Affidavit used to Determine Eligibility for Admission under Art. 26.04 of the Texas Code of Criminal Procedure.
Filing:
Some judges will require you to have a "hearing" shortly after you file the above forms. In those counties those judges will ask you questions about your income and expenses as designated on the Financial Affidavit form, but in other counties, no "hearing" is even scheduled at all. You need not apply for community supervision, but if you do, the court will conduct a hearing.
You have the right to a court appointed attorney at every stage of your case.
Common Issues With Obtaining a Court Appointed Lawyer
There can be a variety of reasons why a court may not grant your request for a court-appointed attorney. One problem that frequently arises here in Harris County is that the judge believes a defendant can afford to hire an attorney – particularly when there’s a substantial bond amount that appears to indicate the defendant is wealthy. Other issues that can result in the denial of your request for counsel include:
When your request for a court-appointed attorney is denied, you can perfect a written appeal from that order by filing a motion within 10 days after the court enters its ruling . When you’re asking for an appellate attorney to represent you, you can submit your application to the appellate court that issued a mandate in your case. If you’re requesting assistance with a trial, you submit your request to the local trial court.
Though you can appeal the court’s decision, the process will take time and it may not help you in a timely manner. The bottom line is that if you’re asking for a court-appointed attorney, you’d better do everything possible to make it very, very clear to the court that you can’t afford to hire a criminal defense attorney.
What Rights Does a Court Appointed Lawyer Have
While a defendant in a criminal case has a right to a court-appointed attorney, if they cannot afford to hire an attorney, they are not entitled to choose the specific one who represents them. Depending on the circumstances of their case, a judge can appoint an attorney from a list of those who are either state-funded or local private attorneys who have agreed to represent indigent defendants at reduced fees. Some indigent defendants will find that they have been appointed the same attorney on multiple occasions, while others will find that they constantly get assigned to different attorneys. Another right of indigent defendants is to have that court-appointed attorney paid for out of the public funds. As the case proceeds, a defendant can request a hearing with the trial judge if they feel that their court-appointed attorney is not fulfilling their legal obligations to them.
FAQs About Court Appointed Lawyers
When do I need a court-appointed attorney?
A court may appoint an attorney if you are unable to afford one and the judge believes you are entitled to an attorney. These attorneys are generally contract attorneys (not direct employees).
Are court-appointed attorneys experienced in criminal cases?
Yes, court-appointed attorneys in Texas are required to have at least 8 hours of continuing legal education each year in criminal defense law.
Do I have any say in who represents me in court?
No. An attorney is chosen from an "open list" of attorneys who meet the state’s legal criminal defense standard. You cannot choose your attorney from this open list.
If I don’t like the attorney for my case, can I get a new one?
No. An attorney is appointed to you and does not represent the judge—instead, he or she is your advocate. If you do not like your attorney, however, you can request a hearing where the state district judge or criminal district judge will hear your arguments and grant motions for replacement in some cases .
What happens at the hearing when I request a new attorney?
You will be given a full and fair hearing under oath, where you must explain your issues to the judge. Your attorney will then have the opportunity to explain the actions taken in your case, and the judge will determine whether or not to appoint a different attorney.
What will it cost for a court-appointed attorney to represent me?
Court-appointed attorneys are paid by the state of Texas to defend your case. You will not incur any legal fees if you are represented by these attorneys.
What is the chance that an appointed attorney could win my case?
It depends on many factors—whether evidence is available, and whether that evidence is fully sharpened and presented in a compelling way.
Are there any additional requirements for someone to become a court-appointed attorney in Texas?
Beyond being licensed to practice, the individual must submit to an extensive police background check. No individuals who have been convicted of felonies will be required to submit to the "open list" of attorneys in Texas.