Your rights
Can't afford a lawyer? How to get a public defender
Key takeaways
- If you can't afford a lawyer, the Constitution gives you a right to one if you are charged with a felony, and in any case where you are actually sentenced to jail. Many states go further.
- Ask at your first court appearance: tell the judge you can't afford a lawyer. You fill out a financial form or answer questions under oath, and the court decides. In Florida, the court clerk decides first.
- It is not always free. Florida charges a $50 application fee, and in Texas, New York and federal court you may have to pay part of the cost if you can. California ended these charges in 2021.
Tell the judge at your first court appearance that you can't afford a lawyer and want one appointed. In Gideon v. Wainwright (1963), the Supreme Court said that a person who is too poor to hire a lawyer cannot be assured a fair trial unless a lawyer is provided. A public defender, or a private lawyer the court appoints and the government pays, is how that right works in practice.
The question is not whether you have any money at all, but whether you can afford a lawyer for this case. Each court system has its own form and rules, and some charge a fee or ask for repayment. Below: who qualifies, how to ask, what to bring, and a side-by-side look at California, Texas, New York and Florida.
Who has the right to a court-appointed lawyer?
If you can't afford a lawyer, you have that right in most criminal cases. The Sixth Amendment gives every person accused of a crime the right “to have the Assistance of Counsel for his defence.” The Supreme Court has said what that means for people who can't pay:
- Felony charges. A person charged with a felony who can't afford a lawyer must be given one. The Court called the right to counsel a fundamental right, essential to a fair trial.Gideon v. Wainwright, 372 U.S. 335 (1963)
- Any case that ends in jail. Unless you knowingly and intelligently give up the right, you may not be jailed for any offense, whether it is called petty, a misdemeanor or a felony, if you had no lawyer at trial.Argersinger v. Hamlin, 407 U.S. 25 (1972)
- Not when the sentence is only a fine. If the law allows jail but the judge imposes only a fine, the Constitution does not require an appointed lawyer.Scott v. Illinois, 440 U.S. 367 (1979)
- A suspended jail sentence counts. A suspended sentence that could later put you in jail may not be imposed unless you had a lawyer in the case.Alabama v. Shelton, 535 U.S. 654 (2002)
- From your first appearance. The right begins at your first appearance before a judge or magistrate, where you learn the charge and your freedom is restricted. After you ask, a lawyer must be appointed within a reasonable time.Rothgery v. Gillespie County, 554 U.S. 191 (2008)
Traffic tickets and other infractions usually don't come with a court-appointed lawyer. In California, a person charged with an infraction has no right to one, and New York's rule on assigned counsel does not apply when the only charges are traffic infractions. A criminal traffic charge that can mean jail is different: ask the court.
Charged in federal court: the Criminal Justice Act
In federal court, the Criminal Justice Act of 1964 set up the system for appointing and paying lawyers for people who can't afford one. Each federal district court has a plan. Depending on the district and the case, your lawyer will be a federal public defender, a community defender, or a private CJA panel attorney whom the court appoints and pays.
- Who gets a lawyer. Anyone financially eligible who is charged with a felony or a Class A misdemeanor, among others. For a petty offense that can carry confinement, the judge may appoint a lawyer when the interests of justice require it.
- The judge must tell you. If you appear without a lawyer, the magistrate judge or the court must tell you that you have the right to a lawyer and that one will be appointed if you can't afford one.
- The form. The Financial Affidavit, Form CJA 23, signed under penalty of perjury. It asks about your job and pay, your property and what you owe on it, your cash and bank accounts, how many people you support, and your monthly bills and debts.
- The test. Whether you are “financially unable to obtain counsel”, not whether you are destitute. The court looks at what it costs to support you and your dependents, what it costs to get out on bail, and what a lawyer would likely cost. Any doubt is resolved in your favor.
- Your family's money is not counted at first, unless your family is willing and able to hire a lawyer for you promptly.
- Privacy. Prosecutors and law-enforcement staff should not help fill out the form or ask you about your eligibility, and the form should be kept out of the public case file or filed under seal.
- Paying part of it. If you can pay some but not all of a lawyer's cost, the judge can still appoint one and have you pay the extra funds to the court. At sentencing, the judge may order you to repay costs from funds available to you, but future earnings should not count.
How and when to ask for a public defender
Ask at your first court appearance, often called the arraignment. The judge will ask whether you have a lawyer. Say that you can't afford one and want one appointed. California's court self-help site puts it simply: if you cannot afford a lawyer, tell the judge at your arraignment, and the court will appoint one, usually a public defender.
If you were arrested, you may be asked even sooner. In Texas, for example, you must be taken before a magistrate within 48 hours of arrest, and the magistrate must tell you about your right to ask for an appointed lawyer, explain how to ask, and make sure you get reasonable help with the forms.
- Say it out loud, early. At your first hearing, or earlier if a magistrate asks: “I can't afford a lawyer and I'm asking for a public defender.”
- Fill out the financial form, or answer questions under oath. Depending on the court, you complete an affidavit or questionnaire, answer the judge's questions, or both. Tell the truth: these forms are usually signed under oath or under penalty of perjury.
- Bring proof if you have it. Some courts ask for documents such as pay stubs. See the checklist below.
- Let the court decide. A judge, magistrate or court officer decides whether you qualify. In Florida, the court clerk decides first and the judge can review it.
- Get your lawyer's name and number. If you don't hear from a lawyer, contact the court. In Texas, an appointed lawyer must make every reasonable effort to contact you by the end of the first working day after being appointed.
- If you are turned down, don't stop there. Ask for a review, or ask again if your money situation changes. See “If you don't qualify” below.
Public defender rules in California, Texas, New York and Florida
| State | Who decides | The form or process | Fee or repayment | Where to ask |
|---|---|---|---|---|
| California | The judge, on the record. The court may send you to a county officer, who gives the court a written recommendation. Cal. Penal Code § 987(c) | The court may ask for a financial statement under penalty of perjury. It is confidential and can't be used as evidence against you, except in a perjury case. § 987(c) | None. The public defender defends you “without expense.” California repealed its public defender registration fee and its law on repaying the cost of appointed counsel as of July 1, 2021, and older unpaid balances of those costs can't be collected. Gov. Code § 27706(a) · AB 1869 (2020) · Penal Code § 1465.9 | Tell the judge at your arraignment. The court appoints a lawyer, usually a public defender. Covers misdemeanors and felonies, not infractions. California Courts self-help · Penal Code §§ 858, 987 |
| Texas | The court, or someone the courts designate, using the county's written procedures and financial standards. They may look at your income, assets, debts, necessary expenses, dependents and spousal income, but not whether you posted bail, except as it shows your finances. Tex. Code Crim. Proc. art. 26.04(l)-(m) | A questionnaire under oath, questions under oath from the judge or magistrate, or both, plus a signed sworn request for a lawyer. Once found indigent, you are presumed to stay indigent unless your finances change materially. art. 26.04(n)-(p) | No application fee in the statutes we read. If the judge finds you can pay part or all of the cost, you can be ordered to pay the amount you are able to pay, never more than the actual cost. art. 26.05(g) · TIDC | At magistration, within 48 hours of arrest, or at arraignment. Or contact the indigent defense coordinator, court coordinator or judge in the county where you are charged; each county plan explains how. Once formal proceedings have begun, a lawyer must be appointed by the end of the 1st working day after your request (counties of 250,000 or more) or the 3rd (smaller counties). arts. 1.051(c), 15.17(a) · TIDC |
| New York | The court assigns a lawyer if you are financially unable to hire one. The state Office of Indigent Legal Services sets criteria and procedures to guide courts. CPL §§ 170.10(3), 180.10(3) · Exec. Law § 832(3)(c) | The statutes we read name no single statewide form. Under the state's plan for counsel at arraignment, a timely arraignment with a lawyer shall not be delayed while your eligibility is decided. Exec. Law § 832(4)(a) | No application fee in the statutes we read. If it turns out you can pay all or part, the court may end the assignment or order payment. County Law § 722-d | At arraignment. The court must tell you about your right to a lawyer, including time to get one, and help you use it. Each county runs a plan: a public defender, a legal aid society, lawyers assigned under a bar association plan, or a mix. CPL §§ 170.10, 180.10 · County Law § 722 |
| Florida | The court clerk first, by comparing your application with set criteria: for example, income at or below 200% of the federal poverty guidelines, or receiving SSI or TANF cash assistance. Owning property with $2,500 or more in net equity, not counting your homestead and one vehicle worth up to $5,000, creates a presumption that you don't qualify. If the clerk says no, the judge can review it at your next hearing. Fla. Stat. § 27.52(2), (4) | A written application on a statewide form: net income, other income, assets, debts, and any bail paid and who paid it, signed as true. The clerk must help you fill it out if you ask; if you are in jail, the public defender brings you the form and files it. § 27.52(1) | A $50 application fee, due within 7 days, but you can't be refused a lawyer for not paying it. If you are found guilty, even with adjudication withheld, you owe attorney's fees and costs of at least $50 (misdemeanor or criminal traffic) or $100 (felony), with a lien on your property that can't be foreclosed on your homestead. §§ 27.52(1)(b)-(c), 938.29 | Apply to the clerk of court. If the clerk hasn't decided yet, ask the judge, who can appoint a lawyer on an interim basis. § 27.52(1), (3) |
Other states set their own process and fees. Ask the court clerk, or the public defender's office in the county where you are charged, how to apply there.
What a public defender does for you
A public defender is a lawyer paid with public money to defend people who can't afford a lawyer. Where there is no public defender office, or the office has a conflict of interest, the court appoints another lawyer, also paid with public funds.
- Defends you at every stage. In California, the public defender defends you at all stages of the case, including the preliminary examination, advises you about the charge, and handles an appeal that might reasonably succeed.Cal. Gov. Code § 27706(a)
- Stays with your case. In Texas, an appointed lawyer represents you until the charges are dismissed, you are acquitted, appeals are exhausted, or the court lets the lawyer withdraw for good cause.Tex. Code Crim. Proc. art. 26.04(j)(2)
- Contacts you quickly. In Texas, an appointed lawyer must make every reasonable effort to contact you by the end of the first working day after appointment, and interview you as soon as practicable.Tex. Code Crim. Proc. art. 26.04(j)(1)
- Talks with you in private before court. Texas law says the right to a lawyer includes consulting your lawyer in private early enough to prepare.Tex. Code Crim. Proc. art. 1.051(a)
- Gets help for your defense. In federal cases, representation includes investigators, experts and other services needed for an adequate defense.18 U.S.C. § 3006A(a)
Some states set rules on how public defenders work. In Florida, the public defender serves full time and may not practice law privately, and assistant public defenders may not take other criminal cases.
How to work with your public defender
- Get your lawyer's name and contact details before you leave court. If you lose them, ask the court.
- Keep your own contact details current with your lawyer and the court, so you don't miss a letter or a court date.
- Talk about the case with your lawyer, not with police or anyone else. See your right to remain silent.
- Bring your papers: the charging papers, any bail or release papers, and the names of people who saw what happened.
- Tell the court and your lawyer if your finances change. In federal court, the judge should tell you about this duty when deciding whether you qualify.
- If you can't reach your lawyer, or your lawyer doesn't seem to be working on your case, ask the court for help. In Texas, the State Bar's Client-Attorney Assistance Program (CAAP) helps clients and lawyers fix communication problems; its helpline is (800) 932-1900.
At your first hearing: what the judge may ask, and what you can say
“Do you have a lawyer?”
You can say: “No, Your Honor. I can't afford a lawyer and I'm asking for a public defender.”
“Do you want to hire your own lawyer, or do you want the court to appoint one?”
You can say: “I can't afford to hire one. Please appoint a lawyer for me.”
“Fill out this financial form and sign it.”
You can ask: “Can someone help me fill it out? I want to get it right.”
“Are you ready to go ahead today?”
You can ask: “I'd like to speak with my lawyer first.”
“The clerk found that you don't qualify.”
In Florida, you can ask: “I'd like the judge to review that decision.”
Saying it clearly in a courtroom is harder than reading it. Practise it once with the AI judge above, and print the wallet card to bring with you.
Documents to bring for the financial questionnaire
- Recent pay stubs, or proof of other income such as unemployment, Social Security, veterans' or workers' compensation benefits, a pension, or support you receive.
- Proof of public benefits such as SSI or TANF cash assistance. In Florida, these can qualify you on their own.
- Recent bank statements, and how much cash you have.
- What you own and what you still owe on it: a home, a car or other vehicle, a boat, stocks or bonds.
- Your monthly bills: housing, groceries, utilities, medical costs, childcare, child support, insurance, loans, credit cards and fines.
- How many people you support, and their ages.
- Bail or bond papers: how much was paid and who paid it.
- Your court papers, with the case number and your next court date.
If you don't qualify for a public defender
| If… | What to do | Good to know |
|---|---|---|
| You think the decision is wrong | Ask the judge to review it. In Florida, you can ask for review of the clerk's decision at your next hearing. | In federal court, doubts are resolved in your favor, and mistakes can be corrected later. |
| Your money situation changes | Tell the court and ask it to decide again. | In Texas, you, your lawyer or the prosecutor can ask for reconsideration after a material change in your finances. |
| You can pay some, but not all, of a lawyer's cost | Say so. A federal judge can appoint a lawyer and have you pay part of the cost. | In Texas, the judge can order you to pay what you are able to pay. In New York, the court may authorize payment toward the cost. |
| You need time to hire a lawyer | Ask the judge for time before the case goes ahead. | In New York, you have the right to an adjournment to get a lawyer. |
| Your problem is civil, not criminal: an eviction, a debt, a family or benefits case | Contact a legal aid office. Legal aid is free help with civil problems for people with low income. | Civil legal aid is a separate system from public defenders. The federal Legal Services Corporation funds civil legal aid programs in every state. |
| You need to hire a private lawyer | Try a state bar lawyer referral service. Several publish a low price for the first consultation. | See Find a lawyer or free legal aid. |
Common questions
Who qualifies for a public defender?
Someone charged with a crime who can't afford to hire a lawyer. The Constitution requires a lawyer in felony cases and in any case where you are actually sentenced to jail, and many states go further. The court looks at your income, assets, debts and the people you support. Florida, for example, starts from income at or below 200% of the federal poverty guidelines.
When should I ask for a public defender?
As early as you can: at your first court appearance or arraignment, or earlier if a magistrate asks. The right to a lawyer begins at your first appearance before a judge or magistrate, and after you ask, a lawyer must be appointed within a reasonable time (Rothgery v. Gillespie County, 2008).
Is a public defender free?
Not always. California charges nothing. Florida charges a $50 application fee and, if you are convicted, attorney's fees and costs, although you can't be refused a lawyer for not paying the fee. In Texas, New York and federal court, you may have to pay part or all of the cost if you are able to.
Can I get a public defender for a traffic ticket?
Usually not for an ordinary ticket. If jail is possible but the judge imposes only a fine, the Constitution does not require an appointed lawyer (Scott v. Illinois, 1979). California gives no court-appointed lawyer for infractions, and New York's rule on assigned counsel does not apply when the only charges are traffic infractions. A criminal traffic charge that can mean jail is different: ask the court.
Can the financial form be used against me?
The rules limit that. In California, the financial statement is confidential and can be used against you only in a perjury case. In Texas, what you say may be used only to decide whether you qualify, or to challenge your own testimony. Federal financial affidavits should be kept out of the public file. Always answer truthfully: you usually sign under oath or under penalty of perjury.
What if I'm unhappy with my public defender?
Talk to your lawyer first. If your lawyer won't communicate with you or work on your case, ask the court for help. In Texas, the State Bar's Client-Attorney Assistance Program can also help you and your lawyer work it out.
Official sources
- National Archives: The Bill of Rights, transcript (Sixth Amendment) archives.gov
- Gideon v. Wainwright, 372 U.S. 335 (1963), U.S. Reports (PDF) loc.gov
- Argersinger v. Hamlin, 407 U.S. 25 (1972), U.S. Reports (PDF) loc.gov
- Scott v. Illinois, 440 U.S. 367 (1979), U.S. Reports (PDF) loc.gov
- Alabama v. Shelton, 535 U.S. 654 (2002), U.S. Reports (PDF) loc.gov
- Rothgery v. Gillespie County, 554 U.S. 191 (2008), U.S. Reports (PDF) loc.gov
- 18 U.S.C. § 3006A: the Criminal Justice Act, adequate representation of defendants govinfo.gov
- U.S. Courts: Defender Services uscourts.gov
- U.S. Courts: Financial Affidavit (Form CJA 23) and instructions uscourts.gov
- U.S. Courts: Form CJA 23, Financial Affidavit (PDF) uscourts.gov
- Guide to Judiciary Policy, Vol. 7A, Chapter 2, § 210: representation under the CJA uscourts.gov
- California Penal Code § 987: counsel at arraignment; financial statement leginfo.legislature.ca.gov
- California Penal Code § 858: rights explained at first appearance leginfo.legislature.ca.gov
- California Government Code § 27706: duties of the public defender leginfo.legislature.ca.gov
- California Penal Code § 1465.9: repealed court costs unenforceable leginfo.legislature.ca.gov
- California AB 1869 (2020, Stats. ch. 92): criminal fees leginfo.legislature.ca.gov
- California Courts Self-Help Guide: Criminal court courts.ca.gov
- Texas Code of Criminal Procedure, Chapter 1 (art. 1.051: right to counsel) statutes.capitol.texas.gov
- Texas Code of Criminal Procedure, Chapter 15 (art. 15.17: duties of the magistrate) statutes.capitol.texas.gov
- Texas Code of Criminal Procedure, Chapter 26 (arts. 26.04, 26.05: appointing and paying counsel) statutes.capitol.texas.gov
- Texas Indigent Defense Commission: My Rights tidc.texas.gov
- Texas Indigent Defense Commission: Review indigent defense plans tidc.texas.gov
- State Bar of Texas: Client-Attorney Assistance Program (CAAP) texasbar.com
- New York Criminal Procedure Law § 170.10: arraignment on an information or misdemeanor complaint nysenate.gov
- New York Criminal Procedure Law § 180.10: arraignment on a felony complaint nysenate.gov
- New York County Law § 722: county plans for counsel nysenate.gov
- New York County Law § 722-d: duration of assignment nysenate.gov
- New York Executive Law § 832: Office of Indigent Legal Services nysenate.gov
- Florida Statutes § 27.51 (2026): duties of the public defender flsenate.gov
- Florida Statutes § 27.512 (2026): order of no imprisonment flsenate.gov
- Florida Statutes § 27.52 (2026): determination of indigent status; application fee flsenate.gov
- Florida Statutes § 938.29 (2026): attorney's fees, costs and lien flsenate.gov
- Legal Services Corporation: I need legal help lsc.gov
- Legal Services Corporation: What are legal services? lsc.gov
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This page explains the law in general terms. It is not legal advice about your situation. Justice is not a law firm and is not affiliated with any court or government agency.