Right to counsel

Key_development Question_mark

Legislation, Domestic Violence - Alleged Victim

Tex. Fam. Code Ann. § 81.007 states that "The county attorney or the criminal district attorney is the prosecuting attorney responsible for filing applications under this subtitle. . . ."  This provision sounds as if the district attorney ("DA") would have the discretion as to which petitions to file, and in fact one court noted that it "authoriz[es] a county attorney or criminal district attorney to file an application for protective order . . . ."  Ford v. Harbour, 2009 WL 679672, at *6 (Tex. App. 2009) (unpublished). However, a different court of appeals cited to this provision to note (in dicta) that "a petitioner for a protective order is statutorily guaranteed counsel."  Striedel v. Striedel, 15 S.W.3d 163, n.2 (Ct. Tex. App. 2000).

 

There are references to the petitioner in a protective order proceeding hiring a private attorney that seem at odds with the statement in § 81.007 that the DA brings all protective orders. Tex. Fam. Code Ann. § 91.003, which governs notice to victims about filing a protective order, states that "you have the right to . . .[a]pply to a court for an order to protect you. You may want to consult with a legal aid office, a prosecuting attorney, or a private attorney."  Moreover, Tex. Fam. Code Ann. § 81.005states that "The court may assess reasonable attorney's fees against the party found to have committed family violence or a party against whom an agreed protective order is rendered under Section 85.005 as compensation for the services of a private or prosecuting attorney or an attorney employed by the Department of Protective and Regulatory Services."  At least one court has reconciled these references to a private attorney with § 81.007 by holding that "the Family Code, while authorizing a county attorney or criminal district attorney to file an application for protective order, also permits an applicant to retain a private attorney if they choose and the applicant may then seek the assessment of reasonable attorney's fees against the respondent."   Ford v. Harbour, 2009 WL 679672, at *6 (Tex. App. 2009) (unpublished).

Appointment of Counsel: categorical Qualified: yes