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Civil appellate, criminal appellate, and criminal trial lawyer at 704 North Thompson Street, #157, Conroe, Texas 77301-2578, (936) 494-1393.
Showing posts with label right. Show all posts
Showing posts with label right. Show all posts

Friday, February 10, 2017

Are There Any Situations in Which a Civil Litigant Has a Right to Appointed Counsel in a Texas State Court?

We're not talking here about criminal cases. We're not talking here about federal cases. Though Texas juvenile proceedings are designated as civil instead of criminal, the criminal counsel appointment rules apply.  Sexually violent predator civil commitment is supposed to be civil-- it may oversimplify to say that the criminal counsel appointment rules apply (a criminal defendant has to be competent to stand trial, an SVPCC respondent does not, and such a person can have a guardian ad litem)  and in Texas civil proceedings, except for a very few statutory exceptions, the default rule is that civil litigants do not have a right to appointed counsel. 

 In one in a million cases, a judge might appoint counsel for an unrepresented party-- there is no budget for this kind of thing, but a judge might ask a lawyer buddy to take a case on a pro bono publico basis. 

Let's start with regular old civil lawsuits, money or property or injunction suits.

Now, though, appointments might come for minors or adult incompetents and have to be paid for by one, some, or all of the parties. 

But indigent parents in state-initiated proceedings to terminate a parent's rights have the right to counsel, and courts have the duty to inform the indigent parents of this right.

Saturday, December 10, 2016

Which Criminal Defendants Have the Right to Appointed Counsel at Trial and on Appeal?

The Sixth Amendment guarantees indigent defendants, in state and federal criminal proceedings, appointed counsel in any case in which a term of imprisonment is imposed.United States v. Bryant, 136 S. Ct. 1954, 1958, 195 L. Ed. 2d 317 (2016) The federal constitution imposes on the states no obligation to provide appellate review of criminal convictions. McKane v. Durston, 153 U.S. 684, 687 (1894). Where an indigent has only one appeal, that person has a right to counsel as to that appeal. Douglas v. Cal., 372 U.S. 353, 357 (1963). A state need not appoint counsel to aid a poor person in discretionary appeals to the State's highest court, or in petitioning for review in the Supreme Court of the United States. Cf. Ross v. Moffitt, 417 U.S. 600, 615 (U.S. 1974).


Sunday, May 1, 2016

Objection re Right to Trial Counsel in Proceeding Must Be Asserted to Overturn Judgment

Darcy v. State, No. PD-1094-15 (Tex. Crim. App. Apr. 27, 2016)  (Keller, P.J. writing for Keasler, Hervey, Alcala, Richardson, and Yeary, JJ.) Meyers, J., filed a concurring
opinion. Johnson, J., filed a concurring opinion. Newell, J., concurred. (no pet. h.).
During the trial of this case, defense counsel learned about a possible right-to-counsel violation that occurred before trial. Evidence involving and relating to the alleged violation was admitted at trial, but counsel did not complain until appeal. The court of appeals reversed appellant’s conviction without considering preservation of error. We conclude that the court of appeals erred in failing to address preservation of error, and we hold that appellant forfeited his complaints by failing to raise them at trial.
 The State suspected that unauthorized messages were being smuggled into and out of the jail. As part of his investigation, Christopher Earl Darcy's friend Rebecca Morris was asked to write a note to him and pass it to the jail cook, which she did.
 Morris testified for the State at trial.. During cross-examination, defense counsel produced the note that she had written to Darcy and had her read it. The prosecutor does not object. The trial court and defense counsel clarified that defense counsel was not offering the note into evidence. The prosecutor then said that the State would offer the note into evidence. Defense did not object. The note is admitted into evidence. On redirect, the Morris says that she was asked to write the note by an d.a.'s investigator, that the note was merely a ruse, designed to determine whether a message would get through to appellant while he was residing in the county jail. On further cross-examination, defense counsel questioned Morris-- note had not turned up until trial day and that he himself did not know how it got here.” No objection to note's admission nor any related testimony.
On appeal, Darcy complained about the State causing the note to be written and sent to him. Court of appeals said that jail smuggling investigation made appellant look like a criminal and harmed him., The court of appeals reversed the trial court and remanded. CCA said tthat it had held that the right to counsel at a critical stage of trial is a waivable-only right,  and that Darcy failed to raise any complaint to the trial court with respect to Morris’s note and sought relief for the first time on appeal. He has failed to preserve error. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Sunday, September 15, 2013

Who Has a Right to Appointed Counsel at Trial in Texas and in Federal Court?

American criminal defendants threatened with jail in either federal or state proceedings are supposed to have counsel appointed for them if they can cannot afford an attorney themselves. Gideon v. Wainwright, 372 U.S. 335 (1963). Convicts who are too poor to afford a lawyer who do not formally waive their right to one will have their cases reversed. This used to be a common problem with old prior convictions, but you are unlikely to encounter a case 50 years old or more that has not been challenged for Gideon error by now any more. Also those indigents adjudged sexually violent predators in Texas. Tex. Health & Safety Code sec. 841.005. In a suit filed by a Texas governmental entity in which termination of the parent-child relationship is requested, the court has to appoint an attorney ad litem to represent the interests of:

  1. an indigent parent of the child who responds in opposition to the termination;
  2. a parent served by citation by publication;
  3. an alleged father who failed to register with the registry under Texas Family Code chapter 160 and whose identity or location is unknown;  and
  4. an alleged father who registered with the paternity registry under Texas Family Code Chapter 160, but the petitioner's attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful.
Tex. Fam. Code Ann. sec. 107.103.

This is an important rule because in a world where there is less and less sure-fire reversible error-- this is the real thing.


Friday, July 13, 2012

Why Should You Care If Your Citations Are Right?

Criteria for a good citation from South Carolina appellate lawyer Robert Hill is here. Maybe I'm missing something, but he doesn't seem to have an RSS feed (or any alternative) set up for his blog.