Right to counsel

Key_development Question_mark

Legislation, Civil Contempt in Family Court

In the context of child support enforcement proceedings, Tex. Fam. Code § 157.163(b) specifies that "If the court determines that incarceration is a possible result of the proceedings, the court shall inform a respondent not represented by an attorney of the right to be represented by an attorney and, if the respondent is indigent, of the right to the appointment of an attorney … (i) The scope of the court appointment of an attorney to represent the respondent is limited to the allegation of contempt or of violation of community supervision contained in the motion for enforcement or motion to revoke community supervision."

In Ex parte Acker, 949 S.W.2d 314 (Tex. 1997), the Supreme Court of Texas held in a criminal contempt case that the failure to advise a contemnor of their right to counsel as required by § 157.163(b) renders the contempt order void, and that even where the parties agree to suspend an incarceration order, incarceration is still an “ultimate possibility” that requires the advisement of the right to counsel to all contemnors and the appointment of counsel for an indigent contemnor prior to the court accepting such an agreement.  And in In re Rivas-Luna, 528 S.W.3d 167 (Tex. App. 2017), the court held that a contemnor’s statement that she “could not afford an attorney and she would have to do the best she could” did not constitute a waiver of the right to counsel where the trial court failed to provide the statutorily-required advisement of the right.  Indeed, the court noted that “Because the trial court did not admonish Relator as required by Section 157.163, it cannot be said that Relator was even aware that she had a right to counsel under the Family Code.  Consequently, even if Relator agreed to proceed without an attorney, her 'waiver' would not have been made knowingly.” 

Appointment of Counsel: categorical Qualified: no