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  • Writer's pictureBrian Foley

Houston Criminal Defense Attorney - Texas Code of Criminal Procedure Series Article 1.051

Houston Criminal Defense Attorney Brian Foley is Board Certified in Criminal Law.


Article 1.051 of the Texas Code of Criminal Procedure grants the right to representation by counsel. This means that if you can't afford an attorney on your own that the court will appoint one to represent you, or to help you represent yourself.


The code provides that "[t]he right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding.


Indigent is defined in the code as well. "Indigent" means a person who is not financially able to employ counsel. Then the code limits appointment of attorneys only to cases that may result in confinement or jail time. This means that if you are given a class C ticket then there is no court appointed lawyer system to help because it is not authorized by the code.


HOW QUICKLY DOES THE COURT HAVE TO APPOINT YOU AN ATTORNEY?


In Harris County the court must appoint an attorney by the end of the first working day after the request is received by the defendant. In smaller counties of under 250,000 the court has until the end of the third working day after receiving the request from the defendant.


WHAT HAPPENS IF YOU ARE ARRESTED IN ANOTHER COUNTY?


If you are arrested in Dallas for a warrant out of Houston, Harris County, Texas then the court in Harris County is supposed to appoint you a lawyer immediately. If they fail to do so then Dallas County has to appoint you a lawyer after 11 days. Dallas County can then request reimbursement from Harris County under these circumstances.


WHAT TYPES OF PROCEEDINGS REQUIRE THE APPOINTMENT OF AN ATTORNEY?


Every indigent person has the right to be represented by an attorney during the initial case against them. We call this phase the trial or guilt/innocence phase. If your lawyer acts for you during this part of the criminal process and you have a jury trial and lose then you are entitled to an attorney to represent you on appeal to the court of appeals. There is another higher court called the Court of Criminal Appeals of Texas but you are not entitled to an attorney to help you write a petition for discretionary review. If the Court of Criminal Appeals grants your petition for discretionary review then at that time you are entitled to have an attorney appointed to your case to write a brief and argue the case against the government.





You may also have an attorney appointed to you if you have a habeas corpus writ filed and the court concludes that the interests of justice require representation. Basically this means that the court thinks you got screwed and they'd like to help you out. This same rule applies to any other appellate proceeding if the court concludes that the interests of justice require representation.


HOW LONG DO YOU HAVE TO FIND AN ATTORNEY?


If you have been denied an attorney by the court or would like to hire your own regardless of the courts determination of indigency then the court only needs to give you 10 days to prepare for any hearing after providing notice. Similarly an attorney has 10 days to prepare for a hearing if they have just been appointed to your case. They can waive this 10 day period with your consent in writing or taken down by the court reporter.


HOW DO YOU WAIVE YOUR RIGHT TO AN ATTORNEY AND REPRESENT YOURSELF?


Any defendant may waive their right to be represented by an attorney. This is almost uniformly a terrible idea. But nevertheless the code has a provision for this process.


Again this process is formalized in statute but comes from a Supreme Court of the United States Decision in Faretta v. California. In Faretta the court held, “In Adams v. United States ex rel. McCann, 317 U.S. 269, 279, the Court recognized that the Sixth Amendment right to the assistance of counsel implicitly embodies a "correlative right to dispense with a lawyer's help."” Faretta v. California, 422 U.S. 806, 814 (1975). “To force a lawyer on a defendant can only lead him to believe that the law contrives against him.” Faretta v. California, 422 U.S. 806, 834 (1975). "For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464-465. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S., at 279.

Faretta v. California, 422 U.S. 806, 835 (1975).


With this decision in mind the legislature crafted the following statute and form motion:


If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation.  If the court determines that the waiver is voluntarily and intelligently made, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings:

"I have been advised this ______ day of __________, 2 ____, by the (name of court) Court of my right to representation by counsel in the case pending against me.  I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge.  Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me.  I hereby waive my right to counsel.  

(signature of defendant)"

These decisions are taken very seriously by Judges. Most Judges are VERY hesitant to allow a defendant to represent himself. Even when a defendant is allowed to ask his own questions of witnesses and make his own arguments an attorney is often appointed to work with him and advice him of how he may do this more effectively. We call the process of complying with 1.051(g)'s requirements a Faretta Hearing.


If you decide to waive the right to an attorney the code also provides that you don't get a do over just because you don't like the result of the hearing. Similarly the court may allow you request a court appointed lawyer if its going downhill but the court does not have to grant the new attorney 10 days to complete their preparation.


WHEN DO YOU GET AN ATTORNEY IF YOU HAVE ALREADY BONDED OUT OF JAIL?


When you get arrested you are held in jail after being booked until a bond has been set. If you can make the bond then the court does not have to appoint you an attorney until the first court setting.


The step by step provisions of how to appoint an attorney are controlled by Section 26.04.


Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.  (a)  A defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding.  The right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation for the proceeding.
(b) For the purposes of this article and Articles 26.04 and 26.05 of this code, "indigent" means a person who is not financially able to employ counsel.
(c)  An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation.  Subject to Subsection (c-1), if an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have been initiated against the defendant, a court or the courts' designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county in which the defendant is arrested shall appoint counsel as soon as possible, but not later than:
(1)  the end of the third working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel, if the defendant is arrested in a county with a population of less than 250,000; or
(2)  the end of the first working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel, if the defendant is arrested in a county with a population of 250,000 or more.
(c-1)  If an indigent defendant is arrested under a warrant issued in a county other than the county in which the arrest was made and the defendant is entitled to and requests appointed counsel, a court or the courts' designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county that issued the warrant shall appoint counsel within the periods prescribed by Subsection (c), regardless of whether the defendant is present within the county issuing the warrant and even if adversarial judicial proceedings have not yet been initiated against the defendant in the county issuing the warrant.  However, if the defendant has not been transferred or released into the custody of the county issuing the warrant before the 11th day after the date of the arrest and if counsel has not otherwise been appointed for the defendant in the arresting county under this article, a court or the courts' designee authorized under Article 26.04 to appoint counsel for indigent defendants in the arresting county immediately shall appoint counsel to represent the defendant in any matter under Chapter 11 or 17, regardless of whether adversarial judicial proceedings have been initiated against the defendant in the arresting county.  If counsel is appointed for the defendant in the arresting county as required by this subsection, the arresting county may seek from the county that issued the warrant reimbursement for the actual costs paid by the arresting county for the appointed counsel.
(d) An eligible indigent defendant is entitled to have the trial court appoint an attorney to represent him in the following appellate and postconviction habeas corpus matters:
(1) an appeal to a court of appeals;
(2) an appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a petition for discretionary review has been granted;
(3) a habeas corpus proceeding if the court concludes that the interests of justice require representation;  and
(4) any other appellate proceeding if the court concludes that the interests of justice require representation.
(e)  An appointed counsel is entitled to 10 days to prepare for a proceeding but may waive the preparation time with the consent of the defendant in writing or on the record in open court.  If a nonindigent defendant appears without counsel at a proceeding after having been given a reasonable opportunity to retain counsel, the court, on 10 days' notice to the defendant of a dispositive setting, may proceed with the matter without securing a written waiver or appointing counsel. If an indigent defendant who has refused appointed counsel in order to retain private counsel appears without counsel after having been given an opportunity to retain counsel, the court, after giving the defendant a reasonable opportunity to request appointment of counsel or, if the defendant elects not to request appointment of counsel, after obtaining a waiver of the right to counsel pursuant to Subsections (f) and (g), may proceed with the matter on 10 days' notice to the defendant of a dispositive setting.
(f)  A defendant may voluntarily and intelligently waive in writing the right to counsel.  A waiver obtained in violation of Subsection (f-1) or (f-2) is presumed invalid.
(f-1)  In any adversary judicial proceeding that may result in punishment by confinement, the attorney representing the state may not:
(1)  initiate or encourage an attempt to obtain from a defendant who is not represented by counsel a waiver of the right to counsel; or
(2)  communicate with a defendant who has requested the appointment of counsel, unless the court or the court's designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county has denied the request and, subsequent to the denial, the defendant:
(A)  has been given a reasonable opportunity to retain and has failed to retain private counsel; or
(B)  waives or has waived the opportunity to retain private counsel.
(f-2)  In any adversary judicial proceeding that may result in punishment by confinement, the court may not direct or encourage the defendant to communicate with the attorney representing the state until the court advises the defendant of the right to counsel and the procedure for requesting appointed counsel and the defendant has been given a reasonable opportunity to request appointed counsel.  If the defendant has requested appointed counsel, the court may not direct or encourage the defendant to communicate with the attorney representing the state unless the court or the court's designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county has denied the request and, subsequent to the denial, the defendant:
(1)  has been given a reasonable opportunity to retain and has failed to retain private counsel; or
(2)  waives or has waived the opportunity to retain private counsel.
(g)  If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation.  If the court determines that the waiver is voluntarily and intelligently made, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings:
"I have been advised this ______ day of __________, 2 ____, by the (name of court) Court of my right to representation by counsel in the case pending against me.  I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge.  Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me.  I hereby waive my right to counsel.  (signature of defendant)"
(h) A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel.  If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.
(i)  Subject to Subsection (c-1), with respect to a county with a population of less than 250,000, if an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have not been initiated against the defendant, a court or the courts' designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county in which the defendant is arrested shall appoint counsel immediately following the expiration of three working days after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel.  If adversarial judicial proceedings are initiated against the defendant before the expiration of the three working days, the court or the courts' designee shall appoint counsel as provided by Subsection (c).  Subject to Subsection (c-1), in a county with a population of 250,000 or more, the court or the courts' designee shall appoint counsel as required by this subsection immediately following the expiration of one working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel.  If adversarial judicial proceedings are initiated against the defendant before the expiration of the one working day, the court or the courts' designee shall appoint counsel as provided by Subsection (c).
(j) Notwithstanding any other provision of this section, if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant's first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.
(k)  A court or the courts' designee may without unnecessary delay appoint new counsel to represent an indigent defendant for whom counsel is appointed under Subsection (c), (c-1), or (i) if:
(1)  the defendant is subsequently charged in the case with an offense different from the offense with which the defendant was initially charged; and
(2)  good cause to appoint new counsel is stated on the record as required by Article 26.04(j)(2).
Added by Acts 1987, 70th Leg., ch. 979, Sec. 1, eff. Sept. 1, 1987.  Subsec. (c) amended by and Subsecs. (i) to (k) added by Acts 2001, 77th Leg., ch. 906, Sec. 2, eff. Jan. 1, 2002.
Amended by: 
Acts 2007, 80th Leg., R.S., Ch. 463 (H.B. 1178), Sec. 1, eff. September 1, 2007.
Acts 2015, 84th Leg., R.S., Ch. 858 (S.B. 1517), Sec. 1, eff. September 1, 2015.

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