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SIDE | BAR

9

co-sponsored or later supported by nineteen

state and local bar associations as well as five

state access to justice commissions. Then, in

2010, the ABA approved the Model Access Act

and the Basic Principles of a Right to Counsel

in Civil Legal Proceedings, which suggest how

states can best implement newly announced

or recognized rights to counsel in civil cases

while avoiding some of the problems that

have plagued the implementation of

Gideon

for criminal cases. All of these documents

are available at

http://www.ambar.org/ civilrighttocounsel .

Second, there are situations where the

exact nature of a right to counsel affects other

parts of the legal analysis, such as where a

constitutional right to counsel is evaluated

differently from a statutory right to counsel in

terms of waiver or preservation. In some instances, judges have relied on the statutory right to counsel for

purposes of waiver/preservation analysis without realizing that the right had an established constitutional

basis as well. The

Directory

ensures that judges have all the information when conducting these evaluations.

An examination of the

Directory

entry for Texas reveals that the state, in many ways, is in line with other

states. Like most others, Texas has law providing a right to counsel in many types of family law and physical

liberty cases. This includes proceedings such as child abuse/neglect, state-initiated termination of parental

rights, confinement of sexually violent persons, contempt for failure to pay child support (according to some

but not all of the Texas courts of appeals), guardianship of adults, and proceedings for minors to dispense

with the parental notification/consent requirements for an abortion. The Texas

Directory

entry provides all

of these sources, as well as statutory cites and case law discussing subsidiary issues such as timing of

appointment, appellate reversal standards, ineffective assistance of counsel standards, and compensation

of appointed attorneys. The

Directory

also illustrates the ways in which Texas is similar to other states in not

providing counsel for certain civil cases, such as housing, public benefits, employment, and health benefits.

The

Directory

also reveals the ways in which Texas is ahead of or behind other states. For instance, Texas

has a relatively unique court rule permitting a court to appoint counsel for a person whose right to child

support or custody/visitation has been violated. It also has a statute permitting the court to appoint counsel

in any district or county court civil case, and some case law authorizing discretionary appointment in domestic

violence cases. Conversely, while more than half the states require the appointment of counsel in adoption

(private termination) cases, appointment in Texas is discretionary, and there is no provision for appointing

counsel in paternity cases. Texas also does not guarantee counsel in private child guardianship, custody, or

domestic violence cases, as some other states do.

While the

Directory

entries are only consistently current through 2012 (some states have partial updates

for 2013 and 2014), the ABA and NCCRC hope to update the

Directory

in coming years. In the meantime, the

NCCRC reports on recent right to counsel advancements on its website,

http://www.civilrighttocounsel.org

.

t

(Endnotes)

1 John Pollock is a staff attorney for the Public Justice Center and the coordinator for the National Coalition for a Civil Right to Counsel in

Baltimore, Maryland.