Right to counsel

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.”

Unfortunately, the right to counsel does not attach in matters related to child support establishment, modification, or confirmation proceedings, even where the respondent is incarcerated and unable to attend the hearing and even though those proceedings may impact the respondent’s ability to pay and the likelihood of later contempt matters. See Interest of G.K.C., 13-22-00430-CV, 2023 WL 5624076 (Tx. Ct. App. Aug. 31, 2023) (noting that no “provision of the family code … requires a trial court to appoint counsel for an indigent litigant in a proceeding that soley involves the confirmation of arrearages and the modification of a child support order.”  And although a trial court has discretion to appoint counsel to represent an indigent litigant in other matters in “exceptional cases,” the case at bar was not “exceptional” as articulated by the Supreme Court of Texas, such that the trial court had “no reasonable alternative but to appoint counsel”) (citing e.g., Gibson v. Tolbert, 102 S.W.3d 710, 713 [Tex. 2003] [articulating the “exceptional” circumstances standard] and In re W.M., 587 S.W.3d 828, 830 [Tex. App.—El Paso 2019, no pet.] [concluding that the trial court did not err by refusing to appoint counsel for an incarcerated father “given that this case is a [child support] modification case and does not involve circumstances that would trigger statutory rights to counsel, such as enforcement of the arrearage through civil or criminal contempt”]).

However, where a right to counsel does attach in a contempt matter, the court must advise the litigant of their right to counsel.  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.”