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Texas Code of Criminal Procedure - Article 1.051. Right To Representation By Counsel

Legal Research Home > Texas Lawyer > Code of Criminal Procedure > Texas Code of Criminal Procedure - Article 1.051. Right To Representation By Counsel

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.  Except as otherwise provided by 
this subsection, 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 shall appoint counsel as soon as 
possible, but not later than 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.  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 as soon as 
possible, but not later than 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.
	(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 or an indigent defendant who has refused 
appointed counsel in order to retain private counsel 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.
	(f)  A defendant may voluntarily and intelligently waive in 
writing the right to counsel.
	(g)  If a defendant wishes to waive his right to counsel, the 
court shall advise him of 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 __________, 
19___, by the (name of court) Court of my right to 
representation by counsel in the trial of the charge 
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 the 
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)  Except as otherwise provided by this subsection, 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 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).  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) 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.  
Amended by Acts 2001, 77th Leg., ch. 906, Sec. 2, eff. Jan. 1, 2002.

Last modified: August 11, 2007