Discretionary appointment of counsel

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Litigation, Domestic Violence - Accused Person

In Cox v. Simmons, 2007 WL 2409746 (Tex. App. 2007) (unpublished), a Texas court of appeals addressed the question of the respondent's right to counsel in a protective order proceeding. After noting that the question "has not yet been decided by the courts of this State," the court concluded, "Ultimately, the decision on whether due process requires the appointment of counsel for an indigent party to a proceeding involving a family violence protective order is a matter for the trial court to determine in its discretion on a case by case basis." 


Additionally, in Striedel v. Striedel, 15 S.W.3d 163, n.2 (Ct. Tex. App. 2000), a court addressed the question of whether a respondent in a protective order proceeding should have a right to counsel, even though the respondent himself had not raised the question on appeal. The court noted that


This action was instituted and prosecuted by the State and appellee has received the benefit of the State's resources in that regard. As in all other situations in which appointed counsel is available, appellant faces the possible deprivation of his liberty inasmuch as he is unable to be in places he would otherwise be allowed and must enroll in a counseling program which may have otherwise been unnecessary. Additionally, he faces incarceration for his failure to abide by the terms of the order.


The court also pointed out in a footnote that "We note that, unlike any other 'civil' proceeding in which injunctive relief is sought, a petitioner for a protective order is statutorily guaranteed counsel," and cited to Tex. Fam. Code Ann. § 81.007(a), as discussed earlier in this memo. Although the court did not make a ruling on the question of the respondent's right to counsel, it concluded that "[i]n the event of a retrial of this matter, we recommend that the trial court give additional consideration to appellant's right to appointed counsel."

Appointment of Counsel: discretionary Qualified: yes