Former Municipial Court Judge

Former Assistant District Attny.

Denton County Office 940-580-2899
Collin County Office 972-954-1947

The Right to an Attorney: When it does not apply and how indigent defendants are coerced into paying for court-appointed counsel

Tim Powers

Denton Criminal Defense Lawyer

Law Offices of Tim Powers, Denton, Texas


The Sixth Amendment to the United States Constitution provides that, In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, and to have the Assistance of Counsel for his defense. The right to have assistance of counsel requires individual states to appoint attorneys for indigent defendants in criminal cases. Gideon v. Wainwright, 83 S. Ct. 792 (1963). However, there are two important limitations on this right to an appointed attorney. First, the right to an attorney does not attach until the formal initiation of criminal proceedings by complaint, indictment or information. Kirby v. Illinois, 406 U.S. 682, 689 (1972). Second, all states and the federal government have some type of cost recoupment system that allows states and the federal government to recover from indigent defendants some of the costs of providing counsel to them.

No Right to an Appointed Attorney for a Person under Investigation but not Charged

In a long line of cases dating back to 1932, the Supreme Court has held that the Sixth Amendment right to the assistance of counsel does not attach until a person is formally charged with a crime . Powell v. Alabama, 287 U.S. 45 (1932); Kirby v. Illinois, 406 U.S. 682, 689 (1972). This holding means that when a person is under investigation by law enforcement she does not have a right to court appointed counsel to assist her in responding to and protecting herself from the authorities. Only where the government had crossed the constitutionally significant divide from fact-finder to adversary can an uncharged person have the right to an appointed attorney. Hall v. Lane, 804 F.2d 79, 82 (7th Cir. 1986). Essentially, an uncharged person is entitled to appointed counsel only when the government intentionally delays filing charges in order to avoid the protections of the Sixth Amendment. Bruce v. Duckworth, 659 F.2d 776, 783 (7th Cir. 1981).

Government Recovery of Costs of Appointed Counsel

The Supreme Court has unambiguously held that the Sixth Amendment requires appointment of counsel for indigent defendants. Gideon v. Wainwright, 83 S. Ct. 792 (1963). In recent years, the federal government and all the states have established systems to seek reimbursement from indigent defendants for some of the costs of appointed counsel. The constitutionality of recoupment statutes has been challenged on grounds that such statutes deny the indigent defendant her Sixth Amendment right to assistance of counsel and her Fourteenth Amendment right to Equal Protection of the laws and Due Process. While some of the specific state systems have been deemed unconstitutional in application, the concept that governments can seek to recoup some of the costs of appointing counsel for indigent defendants has been consistently upheld.

Sixth Amendment Challenges

In some cases where courts have considered the validity of state recoupment statutes under the Sixth Amendments right to assistance of counsel, courts have held that such statues did not deny indigent defendants right to assistance of counsel. On the other hand, some courts have held that such statutes were unconstitutional because they discouraged indigent defendants from exercising their right to have assistance of counsel. In State of Alaska v. Albert, 899 P.2d 103 (Alas. 1995), the Supreme Court of Alaska held that Alaska's recoupment statute did not violate indigent defendants right to counsel because there was no evidence that the recoupment system caused indigent defendants to refuse counsel more frequently than non-indigent defendants. Likewise, In Fuller v. Oregon, 94 S. Ct. 2116 (1974), the United States Supreme Court held that because Oregon's recoupment statute only imposed obligation to repay costs of counsel on those with foreseeable ability to meet that obligation, it did not deter indigent defendants from exercising their right to counsel. In certain jurisdictions, recoupment statutes do not require a court to determine an indigent defendants ability to pay prior to the recoupment judgment. Furthermore, some jurisdictions do not require determination of the indigent defendants ability to pay prior to recoupment judgment even if jail is a possible consequence for nonpayment.

While some state recoupment statutes have been deemed constitutional because the statute did not violate the Sixth Amendment by discouraging indigent defendants to exercise their right to counsel, other state recoupment statues have been held unconstitutional because the statute chilled an indigent defendants exercise of the right to counsel. In Fitch v. Belshaw, 581 F. Supp. 273 (1984), Oregon's recoupment statute authorized courts to assess the cost of court-appointed counsel if the court determined that the indigent defendant was able to repay attorneys costs. However, all defendants who requested appointment of counsel were required to sign an affidavit promising to repay the costs of appointed counsel, discouraging defendants to exercise their Sixth Amendment right. The court held that Oregon's recoupment statute unconstitutionally chilled indigent defendants exercise of the Sixth Amendment right to counsel because it required all indigent defendants to promise to repay their attorney costs whether or not they had the means to repay.

Due Process and Equal Protection Challenges

Section 1 of the Fourteenth Amendment to the United States Constitution provides that, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In cases where courts have considered the validity of state recoupment statutes under the Due Process Clause of the Fourteenth Amendment, courts have held that such statues did not deprive indigent defendants of liberty or property interests within the meaning of the Due Process Clause. In Wicks v. Charlottesville, 208 S.E.2d 752 (Va. 1974), Virginias recoupment statute permitted automatic taxation of a convicted defendant for repayment of attorney's fees. The Supreme Court of Virginia held that while the United States Constitution assures every accused a right to court-appointed counsel, no court has held that every constitutional right or privilege must be available to all persons without any cost or obligation on their part. Hence, the Court found Virginias recoupment statute valid under the Due Process Clause. On the other hand, in Fitch, supra, indigent defendants claimed that Oregon's recoupment statute deprived them of substantial liberty and property interests without notice or hearing in violation of the Due Process Clause. Under the Oregon recoupment statute, indigent defendants who failed to repay the cost of counsel were subject to civil judgments, suspension of a driver's license, arrest and imprisonment. The court held that such property and liberty interests were substantial, especially when the statute did not require a notice or hearing, and thus the Oregon recoupment statute deprived indigent defendants of liberty and property without due process.

In Albert, supra, indigent defendants argued that state recoupment statutes violated the Equal Protection Clause of the Fourteenth Amendment. Under Alaska's recoupment statute, indigent defendants had far less opportunity to challenge the attorney's fees assessed by the state recoupment statute than did more affluent defendants who wanted to challenge the fees charged by their private attorneys. However, the court held that the recoupment statute served a legitimate state purpose, to obtain payment for the cost of appointed counsel. Hence, the court held that Alaska's state recoupment statute did not violate the Equal Protection Clause of the Fourteenth Amendment because the procedure granted to indigent defendants, even if different from procedure granted to more affluent defendants, achieved a legitimate state purpose with administrative efficacy while protecting the rights of criminal defendants. On the other hand, the Supreme Court in James v. Strange, 92 S. Ct. 2027 (1972), held that Kansas recoupment statue was unconstitutional because it did not allow indigent defendants all of the exemptions provided to other judgment debtors. The Court stated that Kansas' recoupment statute treated indigent defendants discriminatorily from other judgment debtors and thus the statute violated the Equal Protection Clause of the Fourteenth Amendment.


The United States Constitution grants every criminal defendant a right to counsel. Accordingly, federal and state courts must provide indigent criminal defendants with court-appointed lawyers if they are unable to hire private counsel. However, all state and federal governments now have recoupment systems where able indigent criminal defendants are required to repay attorneys costs at the end of trial. If you are confronted with the option of requesting court-appointed counsel, it is important to consider the recoupment statues of that jurisdiction or consult an attorney to discuss the matter further. Additionally, if you are under criminal investigation but not charged with a crime, you should consult an attorney to determine whether you qualify for an appointed attorney and what can be done to avoid criminal charges.

If you are seeking aggressive criminal representation by an experienced criminal defense attorney for your Denton County criminal case or arrest in Denton County, contact the offices of Tim Powers today. There is no charge or obligation for the initial consultation. 940.580.2899.

*Tim Powers is an attorney licensed to practice law by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific legal question you should directly consult an attorney.