Rothgery ruling "trumped" counties leeway to delay counsel appointments

From Texas Lawyer, more clues about the impact of the recent Supreme Court ruling in Rothgery and whether it will require Texas counties to appoint counsel earlier in the process ("Released defendants to get speedier access to counsel," June 26):

Wesley Shackelford, special counsel for the Texas Task Force on Indigent Defense, says the Supreme Court's ruling in Rothgery defines when "adversarial judicial proceedings" are initiated under Texas law -- an issue Shackelford says has not been totally clear since the Texas Legislature passed the Fair Defense Act in 2001.

Shannon Edmonds, the Texas District and County Attorneys Association's governmental affairs director, says the Legislature crafted a compromise in the 2001 legislation to provide that if an indigent defendant was released prior to having an attorney appointed, the appointment of counsel "is not required until the defendant's first court appearance or when adversarial judicial proceedings are initiated, whichever comes first." The Legislature included that language in Texas Code of Criminal Procedure Article 1.051(j), he says.

"Now the Supreme Court has trumped that compromise or overturned it," Edmonds says.

Andrea Marsh, executive director of the Texas Fair Defense Project and one of the attorneys who represents Walter Rothgery, says she doesn't view the language in Article 1.051(j) as a compromise. But Marsh says many people have interpreted the language of that statute to mean that indigent defendants who bonded out of jail did not need lawyers appointed as quickly as other defendants.

As Shackelford points out, "That's been the interpretation in most jurisdictions."

Marsh says the Rothgery ruling now makes it clear that the timeline for appointing counsel is the same for indigent defendants who are released as for those who remain in jail.

Under Code of Criminal Procedure Article 1.051(c), an indigent defendant in a county with a population of 250,000 or more is entitled to have an attorney appointed by the end of the first working day after he or she requests the appointment of counsel. An indigent defendant in a smaller county is entitled to have an attorney appointed not later than the end of the third working day after requesting an attorney.

Shannon Edmonds said SCOTUS "trumped" or "overturned" the compromise on when counsel must be appointed, but from my perspective they merely clarified it. SCOTUS ruled that "adversarial proceedings" begin with the article 15.17 bail hearing, so if under Texas law counsel must be appointed "when adversarial judicial proceedings are initiated," the Supreme Court just told us exactly when that is. By this logic, Texas law would require appointment of counsel for indigent defendants who're out on bail and who request a lawyer within a 1-3 day timeframe, depending on the size of the county. (Some counties already do this; most don't.)

So even though SCOTUS didn't stipulate counsel be appointed earlier because the right to counsel attaches at the bail hearing, that appears to be the net result of their ruling under Texas law.

Prior related Grits posts:

• A possible explanation for Rothgery confusion
• Dallas County data entry errors could lead to more wrongful arrests like Walter Rothgery's
• What does Rothgery really mean?
• SCOTUS to Texas: Provide counsel earlier in the process
• Rothgery v. John Wiley Price: Move to slash Dallas defender budget couldn't come at worse time
• When does the adversarial process commence?
• Number arrested with no charges filed closer to 2% than half
• Rothgery oral arguments reveal new insight about murky systems
• Do they really have to appoint you a lawyer when you ask for one?
• SCOTUS to decide in Texas case when right to counsel attaches