TEX. CASE LAW ---> ineffective assistance of counsel claim in civil cases <--

law-ineffective-assistance-of-counsel

A parent in a parental termination proceeding is entitled to effective assistance of counsel, a right which is
assessed under the same standard as that set for criminal defense counsel in Strickland v. Washington, 466 U.
S. 668, 681 (1984). In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003). To demonstrate ineffective assistance in
a given case, a parent must first show that counsel’s performance was deficient; once deficiency has been
established, the parent must show that counsel’s deficient performance prejudiced the parent’s case. Id. at
545. Concerning whether a particular representation was deficient, we must consider all circumstances
surrounding the case and determine whether counsel was “reasonably effective.” Id.
The record is silent as to why counsel did not object. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim.
App. 1999) (silent record will not support ineffective assistance claim).

CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

Generally, the doctrine of ineffective assistance of counsel is limited to criminal cases. See Cherqui
v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343-44 (Tex. App.-Houston [14th Dist.] 2003, no
pet.). Except in limited circumstances, the Sixth Amendment right to effective counsel does not
extend to civil cases. See Kaposta v. Green, 152 S.W.3d 839, 844 (Tex. App.-Dallas 2005, no pet.);
Cherqui., 116 S.W.3d at 343-44. Civil cases in which the right to effective assistance of counsel has
been found to apply involve the termination of an individual's parental rights, see In re M.S., 115 S.W.
3d 534, 544 (Tex. 2003), or the deprivation of liberty. See Lanett v. State, 750 S.W.2d 302 (Tex. App.
-Dallas 1988, writ denied) (involuntary civil commitment).

The constitutional right to effective assistance of counsel has been extended only to certain civil proceedings
in Texas. See In re M.S., 115 S.W.3d 534, 544-45 (Tex. 2003) (holding that there is a right to effective counsel
in parental-rights termination cases); In re Protection of H.W., 85 S.W.3d 348, 355-56 (Tex. App.-Tyler 2002,
no pet.) (noting that there is a right to effective counsel in involuntary civil commitment cases). Ms. Wilhoite
cites no case that has extended the constitutional right of effective counsel to contract cases, and we decline
to do so. See Chrisman v. Chrisman, 296 S.W.3d 706, 707 (Tex. App.-El Paso 2009, no pet.(declining to
extend the right to divorce proceedings); see also In re M.J., No. 09-09-00355-CV, 2010 WL 3042438, at *4
(Tex. App.-Beaumont Aug. 5, 2010) (mem. op.) ("In the absence of a constitutional or statutory provision
granting a right to appointed counsel, we decline to extend a right to effective assistance of counsel to a
dispute resolving the division of possession between joint managing conservators."). Furthermore, even if the
right did extend to contract cases, by exercising her right to represent herself, Ms. Wilhoite is precluded from
claiming ineffective assistance. See Williams v. State, 549 S.W.2d 183, 189 (Tex. Crim. App. 1977)(stating that
when an accused elects to represent himself he cannot complain that the quality of his own defense amounted
to a denial of effective assistance of counsel); Macon v. State,No. 2-05-00195-CR, 2007 WL 79714, at *4
(Tex. App.-Fort Worth Jan. 11, 2007, no pet.) (mem. op., not designated for publication). We overrule Ms.
Wilhoite's fourth point.

In analyzing the effectiveness of counsel in a parental-rights termination case, we apply the two-pronged
standard set forth by the United States Supreme Court in Strickland v. Washington.1 In re M.S., 115 S.W.3d
534, 545 (Tex. 2003). To prevail on an ineffective assistance of counsel claim in a termination case, the
appellant must show that (1) the attorney‘s performance was deficient and fell below an objective standard of
reasonableness, and (2) the deficient performance prejudiced the defense. Id.
In determining whether counsel‘s performance was deficient, there is a ―strong presumption that counsel‘s
conduct falls within the wide range of reasonable professional assistance.‖ Id. Counsel‘s performance falls
below acceptable levels when the representation is so grossly deficient as to render proceedings
fundamentally unfair. Id.
With respect to whether the deficient performance prejudiced his defense, prejudice is shown when there
exists a reasonable probability that, but for counsel‘s error, the result of the proceeding would have been
different. In re D.B., 153 S.W.3d 575, 577 (Tex. App.–Amarillo 2004, no pet.). Claims of ineffective assistance
must be firmly founded in the record. In re K.K., 180 S.W.3d 681, 685 (Tex. App.–Waco 2005, no pet.). A
silent record cannot overcome the strong presumption of reasonable assistance. Castaneda v. State, 135 S.W.
3d 719, 721 (Tex. App.–Dallas 2003, no pet.). Failure to make the required showing of either deficient
performance or sufficient prejudice defeats the ineffectiveness claim. Id.

08-1015
IN THE MATTER OF J.A.L.; from Galveston County; 1st district (01 -07 -00896 -CV, ___ SW3d ___, 10‑30‑08)
(juvenile delinquent conduct by committing capital murder and robbery, constitutionality of his conviction in an
application for habeas corpus relief, contending that his trial counsel rendered constitutionally ineffective
assistance before plea bargain.

08-0380
IN THE INTEREST OF G.B., P.B., N.B., AND V.R., CHILDREN; from Washington County; 1st district
(01-07-00699-CV, ___ SW3d ___, 04-03-08)(termination case, ineffective assistance of counsel claim raised
on appeal) Review denied with p er Curiam Opinion

Also see:
Texas Causes of Action and Defenses | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams | Texas
Caselaw Topics Pages | Texas Opinions H omepage |