                                 CODE OF VIRGINIA

DETERMINATION OF INDIGENCY; GUIDELINES; STATEMENT OF INDIGENCE; APPOINTMENT OF
COUNSEL (§ 19.2-159)

A. If the accused shall claim that he is indigent, and the charge against him is
a criminal offense that may be punishable by confinement in the state
correctional facility or jail, subject to the provisions of &#xA7; 19.2-160, the
court shall determine from oral examination of the accused or other competent
evidence whether or not the accused is indigent within the contemplation of law
pursuant to the guidelines set forth in this section.

B. In making its finding, the court shall determine whether or not the accused
is a current recipient of a state or federally funded public assistance program
for the indigent. If the accused is a current recipient of such a program and
does not waive his right to counsel or retain counsel on his own behalf, he
shall be presumed eligible for the appointment of counsel. This presumption
shall be rebuttable where the court finds that a more thorough examination of
the financial resources of the defendant is necessary. If the accused shall
claim to be indigent and is not presumptively eligible under the provisions of
this section, then a thorough examination of the financial resources of the
accused shall be made with consideration given to the following:

   1. The net income of the accused, which shall include his total salary and
   wages minus deductions required by law. The court also shall take into account
   income and amenities from other sources including but not limited to social
   security funds, union funds, veteran&#8217;s benefits, other regular support
   from an absent family member, public or private employee pensions, dividends,
   interests, rents, estates, trusts, or gifts.

   2. All assets of the accused which are convertible into cash within a
   reasonable period of time without causing substantial hardship or jeopardizing
   the ability of the accused to maintain home and employment. Assets shall
   include all cash on hand as well as in checking and savings accounts, stocks,
   bonds, certificates of deposit, and tax refunds. All personal property owned
   by the accused which is readily convertible into cash shall be considered,
   except property exempt from attachment. Any real estate owned by the accused
   shall be considered in terms of the amounts which could be raised by a loan on
   the property. For purposes of eligibility determination, the income, assets,
   and expenses of the spouse, if any, who is a member of the accused&#8217;s
   household, shall be considered, unless the spouse was the victim of the
   offense or offenses allegedly committed by the accused.

   3. Any exceptional expenses of the accused and his family which would, in all
   probability, prohibit him from being able to secure private counsel. Such
   items shall include but not be limited to costs for medical care, family
   support obligations, and child care payments.
   				The available funds of the accused shall be calculated as the sum of his
   total income and assets less the exceptional expenses as provided in the first
   paragraph of this subdivision 3. If the accused does not waive his right to
   counsel or retain counsel on his own behalf, counsel shall be appointed for
   the accused if his available funds are equal to or below 125 percent of the
   federal poverty income guidelines prescribed for the size of the household of
   the accused by the federal Department of Health and Human Services. The
   Supreme Court of Virginia shall be responsible for distributing to all courts
   the annual updates of the federal poverty income guidelines made by the
   Department.
   				If the available funds of the accused exceed 125 percent of the federal
   poverty income guidelines and the accused fails to employ counsel and does not
   waive his right to counsel, the court may, in exceptional circumstances, and
   where the ends of justice so require, appoint an attorney to represent the
   accused. However, in making such appointments, the court shall state in
   writing its reasons for so doing. The written statement by the court shall be
   included in the permanent record of the case.

C. If the court determines that the accused is indigent as contemplated by law
pursuant to the guidelines set forth in this section, the court shall provide
the accused with a statement which shall contain the following:
			&#8220;I have been advised this ________ day of __________, 20____, by the
(name of court) court of my right to representation by counsel in the trial of
the charge pending against me; I certify that I am without means to employ
counsel and I hereby request the court to appoint counsel for me.&#8221;
			_____________________ (signature of accused)
			The court shall also require the accused to complete a written financial
statement to support the claim of indigency and to permit the court to determine
whether or not the accused is indigent within the contemplation of law. The
accused shall execute the said statements under oath, and the said court shall
appoint competent counsel to represent the accused in the proceeding against
him, including an appeal, if any, until relieved or replaced by other counsel.
			The executed statements by the accused and the order of appointment of
counsel shall be filed with and become a part of the record of such proceeding.
			All other instances in which the appointment of counsel is required for an
indigent shall be made in accordance with the guidelines prescribed in this
section.

D. Except in jurisdictions having a public defender, or unless (i) the public
defender is unable to represent the defendant by reason of conflict of interest;
(ii) the court finds that appointment of other counsel is necessary to attain
the ends of justice; or (iii) the public defender, with the concurrence of the
executive director of the Virginia Indigent Defense Commission or his designee,
determines that the current active caseload would preclude the public defender
from providing adequate representation to new clients, counsel appointed by the
court for representation of the accused shall be selected by a fair system of
rotation among members of the bar practicing before the court whose names are on
the list maintained by the Virginia Indigent Defense Commission pursuant to
&#xA7; 19.2-163.01. If no attorney who is on the list maintained by the Virginia
Indigent Defense Commission is reasonably available, the court may appoint as
counsel an attorney not on the list who has otherwise demonstrated to the
court&#8217;s satisfaction an appropriate level of training and experience. The
court shall provide notice to the Commission of the appointment of the attorney.

HISTORY: Code 1950, § 19.1-241.3; 1964, c. 657; 1966, c. 460; 1975, c. 495;
1976, c. 553; 1978, c. 720; 1984, c. 709; 2004, cc. 884, 921; 2006, cc. 680,
708; 2008, cc. 122, 154; 2021, Sp. Sess. I, cc. 344, 345; 2024, c. 524.