When do I have the right to an attorney?

U.S. Constitutional law provides that a person has the right to counsel at the initiation of criminal proceedings. The Texas Code of Criminal Procedure mandates that a defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. But what is initiation of criminal proceedings? What is an adversarial proceeding? Generally speaking, the right to counsel does not attach before formal charges are filed, irrespective of whether the person is in police custody. Many of our clients have asked us why they were not given a lawyer to talk to the minute they were arrested. The short answer is, because criminal proceedings had not yet taken place.

However, in some circumstances the right to an attorney attaches even before formal charges have been presented. For instance, if during custodial interrogation, the accused asks to speak to an attorney, the interrogation must stop and cannot resume again until the accused has had his consultation. Further, a person who is subjected to a live line up is allowed to have counsel present to assure the relative fairness of the procedure.

Free counsel must be provided to people who can prove they are without funds to pay, i.e. indigent. The decision to appoint counsel is left to the discretion of the presiding judge where the case is assigned. Normally, defendants who are unable to bail out of jail will be appointed an attorney if one is requested. Defendants free on bail will find it much more difficult to convince the Judge that they are indigent, since they obviously had the funds to make bail.

Contact a Houston Criminal Defense Attorney from our firm as soon as possible if you have been arrested or are under investigation.

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