Right to counsel

Litigation, Civil Contempt in Family Court

In Ex parte Walker, 748 S.W.2d 21, 22 (Tex. App. 1988), the Dallas Court of Appeals found a Fourteenth Amendment right to counsel in civil contempt proceedings. The court relied entirely on the United States Supreme Court's ruling in Lassiter, commenting that the right to counsel "extends to every case in which the litigant may be deprived of his personal liberty if he loses."  See also, Ex parte Wilson, 559 S.W.2d 698, 701 (Tex. App. 1977) (not reaching question due to lack of information as to whether contemnor was indigent, but noting that "contempt proceedings, whether criminal or civil, are criminal in nature and, accordingly, should conform as nearly as practicable to a criminal proceeding," and finding contemnor's arguments for right to counsel "persuasive"); Ex parte Davis, 344 S.W.2d 153, 156 (Tex. 1961) (contemnor in proceeding for failure to pay child support raised due process challenge under federal and state constitutions; court notes proceeding is "quasi-criminal in nature. . . . A longer period for preparation, the presence of counsel and the receipt of additional evidence might not have led to a different judgment, but due process required that a reasonable opportunity for exerting those influences on the court's judgment be afforded"); Ex parte Young, 724 S.W.2d 423, 424 (Tex. App. 1987) (finding right to counsel based on risk of incarceration, and citing to Lassiter); Ex parte Gonzales, 945 S.W.2d 830 (Tex. Crim. App. 1997) (agreeing that rule, in addition to constitution, provides right to counsel in contempt case involving incarceration for failure to pay court-imposed fees, and stating that “the right to counsel turns on whether deprivation of liberty may result from a proceeding, not upon its characterization as 'criminal' or 'civil.’”)


Most of these contempt cases relied entirely on Lassiter for an absolute right to counsel, and these cases are questionable after Turner v. Rogers, 131 S.Ct. 2507 (2011) (Fourteenth Amendment does not require right to counsel in civil contempt, at least where opponent is neither the state nor represented and matter is not "especially complex"), with respect to cases not within Turner's bailiwick. However, in Ex parte Lopez, 710 S.W.2d 948 (Tex. App 1986), overruled on other grounds, Ex parte McIntyre, 730 S.W.2d 411 (Tex. App. 1987),  the court found the contempt hearing lacked adequate procedures to determine indigency and noted that "[t]he State has thrown its weight behind the complaining party", and the Turner court suggested that counsel might be required in such circumstances (Lopez, however, also relied on a Texas Supreme Court ruling of dubious applicability to civil cases in order to find a right to counsel in the first place). See also Deramus v. Thornton, 333 S.W.2d 824, 829 (Tex. 1960) (case involved indirect contempt for violation of injunction, but not issue of right to counsel; court comments that "Contempt proceedings are generally criminal in their nature whether they grow out of criminal or civil actions. It follows then that the proceedings should conform as nearly as practicable to those in criminal cases.")

Appointment of Counsel: categorical Qualified: yes