Does anyone have a template for Motion to challenge a finding of indigency? Thanks

Had one of those a couple of years back; just sent it to you via e-mail.

Will you please send to me as well? Had a defendant request court appointed attorney - arrested later the SAME DAY with $2,500+ in cash in his pocket. You can't make these up.

frank.lacy(at)co.pecos.tx.us

Thanks

You got it.

Can I get a copy of this motion? We've had a similar issue in Hood County.

kspraberry@co.hood.tx.us

Would you please send me a copy of that motion? Thank you!

bob.lipo@co.kendall.tx.us

It is clear that a trial court does not have a duty to appoint counsel until the defendant shows he is indigent. A trial court has no duty to appoint counsel when a defendant has made no showing of indigency. But how to answer whether someone is “financially unable to afford” to hire their own counsel has confounded many since 1987. How to weight or juggle the consideration of such factors as the defendant’s income, source of income, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, spousal income, and whether the defendant has posted or is capable of posting bail is often a conundrum. The extent to which the court can force the sale of some of the “property owned” is not addressed in the statute. Cf. Ex parte Ortegon, No. 07-03-0510-CR, 2004 Tex. App. LEXIS 7417 (Tex. App. Aug. 17, 2004) (referring to “due diligence to raise money to hire counsel through the mortgaging, sale, or other use of those assets). The willingness or duty of a spouse to assist in the project is also not addressed. While all the stated factors would normally be considered in sound budgetary analysis, it is almost a given that many defendants (at least of those seeking a “public defender”) have limited sources of income and poor money management skills. Art. 26.04 is “complicated” to say the least, especially against the backdrop principle that “determination of a defendant’s indigency status rests squarely within the discretion of the trial court.” 120 S.W.3d at 896. Whitehead and McFatridge must always be deciphered upon the given facts.

I am not sure how much interest the prosecutor has in this decision by the court or its designee. I think you would have the burden of showing an abuse of discretion, and that raises the question of “based on what evidence”? Is it what was before the court or designee at the time or what now appears to be the case. I would also note that while it is clear that the person making the appointment decision must consider only the defendant’s personal financial condition, not that of his parents, other relatives, friends or employers, it is ironic that those are often the very sources a defendant can often seek out to make bail and hire a more desirable attorney.

To me, the bigger issue should be whether to attach a new charge under §37.02, 37.03, 37.09 or 37.10, P.C. and how to go about proving the falsity. Also, you may only be creating a thorny issue about who represents the defendant once appointed counsel is denied or removed.

This message has been edited. Last edited by: Martin Peterson,