The Right to Counsel vs. The Right to Appointed Counsel

In criminal prosecutions, the accused has the right to be represented by counsel, to be heard by the accused or by counsel, or both. This right is enshrined in Article 1, Section 10 of the Texas Constitution and in Chapter 1 of the Code of Criminal Procedure. However, the right to representation is not the same as the right to free representation.

An indigent defendant is entitled to have an attorney appointed to represent him in any adversarial judicial proceeding that may result in punishment by confinement. Tex. Code of Crim. Proc. Art. 1.051(c). However, in “any other criminal proceeding,” the defendant is only entitled to appointed counsel “if the court concludes that the interests of justice require representation.” Id. “Any other criminal proceeding” here refers to any proceeding for which confinement may not be part of the sentence. Although a defendant may be incarcerated for, for example, failure to appear or failure to pay a fine in municipal court, incarceration may never be part of the sentence for the underlying offense. Scott v. Illinois, 440 U.S. 367 (1979).

In fine-only cases, then, there are two factors to be met before a court is required to appoint counsel: indigence and the interest of justice. In this context, indigence is simply the financial inability to employ counsel. The determination of what the interests of justice require is within the court’s discretion. Factors for a judge to consider include whether the case will involve unique matters or matters of first impression, whether the risks to liberty are grave, and whether the accused lacks the education, experience, or ability to proceed without appointed counsel. See, e.g., Valentine v. State, No. 07-12-0307-CR, 2013 Tex. App. LEXIS 5174, at *4 (Tex. App.—Amarillo Apr. 25, 2013); Barcroft v. State, 881 S.W. 2d 838, 841 (Tex. App.—Tyler 1994, no pet.)

For additional information, please see the file below as well as pages 30-31 of the October 2016 Special Edition of the Recorder, which is devoted to fines, fees, costs, and indigence.