Tuesday, April 13, 2010

Indigent by any other name

I had an interesting experience sitting in Judge Jim York's court over in the Family Law Center this morning on an enforcement action. While we were waiting to go before the court, the parties in a suit to revoke the father's community supervision was called (apparently the father had been held in contempt for nonpayment of child support and then failed to pay the back due amount).

Judge York informed the father that since confinement was a possibility should the judge revoke his community supervision that he was entitled to the same rights as a criminal defendant -- one of those rights being the right to appointed counsel if he was indigent.

As proof of his inability to hire an attorney, the father produced pay stubs showing he had a job and was making $10 an hour. Judge York then looked at the father and told him that he was going to deny him an appointed attorney because, although he couldn't afford an attorney, he was not, by definition, indigent.

I sat and thought about that for a second and was dumbfounded (particularly since the next case on the docket involved a doctor and his wife getting a divorce and the court had appointed an attorney to represent the interests of the children (who had no risk of going to jail.).

After I got back to the office I pulled down my copy of Black's Law Dictionary and looked up the meaning of  indigency. According to Black's, the "inability to afford an attorney" renders one indigent for purposes of the Sixth Amendment.

Oops. Score one for Harris County.

10 comments:

Alessandra said...

Do you not understand that the Family Code requires the appointment of an ad litem in certain situations and that the couple will be paying the ad litem fees? The county doesn't pay for it like with an appointed attorney for an indigent. Not only will the litigants be paying the ad litem's attorney fees, the order will be written to include those fees as child support so that if they don't pay, they can be held in contempt. Guessing you don't do too much family law.

Houston DWI Attorney Paul B. Kennedy, said...

Thank you for your comment.

As a matter of fact, I do try to steer clear of the Family Law Center whenever possible. In the case I referenced, I'm sure the costs of the ad litem attorney will be footed by the parties.

However, there are ad litem attorneys appointed to represent children who are paid by the county because the parties are indigent.

My point was simply that the court made a clearly erroneous ruling in a case in which a man who faced a jail sentence was denied an attorney despite the fact he could not afford to hire one. It is appalling to me that Harris County continues to turn a blind eye to the constitutional rights of indigent citizens all in the name of saving a buck.

But we can certainly build new playpens for the owners of the city's professional sports franchises.

Alessandra said...

You certainly have that right. We can cut appointed defense attorney pay and refuse to appoint them for truly indigent defendants, but God forbid that every sport doesn't have its own stadium. Family court is like criminal court, the judges expect you to have no car and no job in order to get appointed counsel. Its even worse over there because you can't get appointed counsel on appeal, either. So if you didn't have an attorney representing you in the hearing, you can't qualify to get an attorney to represent you on appeal of the fact that you were denied appointed counsel. That's messed up.

Anonymous said...

I am a disabled vet, receiving SSDI & VA payments. After my bills I have less than 120 for food & medical expenses for an entire month. Judge Jim York refused to appoint me an attorney. Then he continuously verbally abused me for not being able to afford one. Best of all Judge Jim York refused to uphold his own orders and awarded damages to a represented party for violating the courts orders.

If you want a perfect example of his abuses; check out ford vs ford (2010).

Go Army said...

Uggh-- I am trying to help a disabled vet who was not there at his divorce hearing fight a clarification ruling on a property judgment the guy knew nothing about. I am wishing somebody told him about the Soldiers and Sailors Civil Relief Act before he let the divorce go through. I am not a family law attorney either-- getting up to speed and reading this about that event in the 246th is disheartening to say the least.

Anonymous said...

I have dealt with Judge York for 9 years. He is gender biased. Expects mom to be taken care of,,
I proved substantial change of income. Asked for child support reduced. He refused because I had $1000
In a savings acount of my daughters. Said to come back when everything is gone. When everything is spent,
I'll be back in contempt for non payment of child support
That is 158% of net resources. I been paying 9 years
Can't stop or I get thrown in jail,,,,, Win win situation?

Anonymous said...

This same judge granted custody to a wealthy ER doctor, the father, who then has refused to allow his ex-wife to have the visitation he ordered for several months now, and who grabbed his oldest daughter from school Monday and carted her off to some unknown mental hospital in Utah, just to hurt his ex-wife. She has no idea where her daughter is. He also signed papers for the mother who is on food stamps to pay child support to the doctor and to pay for the health insurance of not only his biological children but for the health insurance of his new wife's children. What is going on in this courtroom?

Anonymous said...

Jim York is a total rube. He placed a child back with the petitioning parent even though this person was living with someone previously convicted of a homicide. Call me crazy but anyone actually convicted of a homicide is probably not a good candidate for raising a child--especially when the other responding parent has never been arrested and has a solid employment history.

Anonymous said...

From what I read . . In a general sense an “indigent” person is one who is needy and poor, or one who has not sufficient property to furnish him a living nor any one able to support him and to whom he is entitled to look for support. See Storrs Agricultural School v. Whitney, 54 Conn. 342, 8 Atl. 141; Juneau County v. Wood County, 100 Wis. 330, 85 N. W. 387; City of Lynchburg v. Slaughter, 75 Va. G2. The laws of some of the states distinguish between “paupers” and “indigent persons,” the latter being persons who have no property or source of income sufficient for their support aside from their own labor, though self-supporting when able to work and in employment. See In reIlybart, 119 N. C. 359, 25 S. E. 903; People v. Schoharie County, 121 N. Y. 345, 24 N. E. 830; Rev. St Mo. 1899,

So, instead of this man contacting the AG's office instead of NOT PAYING SUPPORT to adjust his order due to his income, he likely made the Judge angry hence the outcome. The man was earning $10 an hour, could have used AG before he fell in "contempt", that is what they do on a daily basis. Come on now, you as an attorney know well that once an order in the court is "granted", you need to follow the order. For child support, if there is a wage change, contact the AG's office that way you avoid headaches, As for Ad Litems, speaking from experience, the party causing an action to take place (is in contempt) will most likely pay the Ad Litem all in the end . .why would the innocent party pay? No one is perfect, but seems someone didn't read their court order to see "they can contact the AGs office for modification of support." . . Just saying ;)

Anonymous said...

I believe Judge York to be gender biased to fathers when it comes to child support. We showed change in circumstances (mom's income cut in half and childs' expenses doubled) and Judge York would not raise CS over guidelines even though father made over $750,000 per year. That means father pays the same amount as a person making $85,000. For the person making $85,000, the CS is a sacrifice -- a measureable amount and change in his lifestyle. To someone making over $750,000, the amount is pocket change and would never be missed. Laws seem unfair to both parties.