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LEGISLATURE OF NEBRASKA
ONE HUNDRED NINTH LEGISLATURE
SECOND SESSION
LEGISLATIVE BILL 859
Introduced by Bostar, 29.
Read first time January 08, 2026
Committee: Judiciary
A BILL FOR AN ACT relating to courts; to amend sections 29-3901, 29-3904,1
29-3905, 29-3918, 43-273, 71-946, 71-947, and 71-948, Reissue2
Revised Statutes of Nebraska, and sections 29-3903, 29-3922, and3
43-272, Revised Statutes Cumulative Supplement, 2024; to require4
courts to appoint county conflict counsel when the public defender5
is unavailable as prescribed; to define terms; to change provisions6
relating to allowance of fees for counsel; to harmonize provisions;7
and to repeal the original sections. 8
Be it enacted by the people of the State of Nebraska,9
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Section 1. (1) For purposes of this section, county conflict1
counsel means an attorney licensed to practice law in this state who is2
employed by the county or has a contract with the county to provide legal3
representation to clients who would normally be represented by the public4
defender, but for whom the public defender is unable to provide such5
representation due to conflicting interests or due to other good cause as6
determined by the court. 7
(2) In any county with a public defender, the county may employ or8
contract for one or more county conflict counsel. When a county first9
employs or contracts for county conflict counsel, the county board shall10
immediately provide written notice of such employment or contract to:11
(a) Each presiding judge of the county court and district court of12
such county; 13
(b) Each presiding judge of any separate juvenile court of such14
county; 15
(c) Each child support referee appointed in such county; and16
(d) The clerk of the district court on behalf of the mental health17
board with jurisdiction within such county. 18
(3) It shall be the duty of county conflict counsel to provide19
representation to indigent individuals in the same manner as the public20
defender. 21
(4) In a county with a population of more than one hundred seventy22
thousand inhabitants, any county conflict counsel shall devote his or her23
full time to the legal work of representing indigent individuals as24
provided in this section and shall not engage in the private practice of25
law. 26
(5) No county conflict counsel shall solicit or accept any fee,27
other than compensation from the county, for representing an indigent28
individual that such counsel has been appointed to represent.29
Sec. 2. Section 29-3901, Reissue Revised Statutes of Nebraska, is30
amended to read: 31
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29-3901 For purposes of sections 29-3901 to 29-3908:1
(1) County conflict counsel has the same meaning as in section 1 of2
this act; 3
(2) (1) Court means shall mean a district court or a county court;4
(3) (2) Felony defendant means shall mean a person who is charged by5
complaint, information, or indictment with or who is under arrest for6
investigation or on suspicion that he or she may have committed any7
criminal offense which may be punishable by imprisonment in a Department8
of Correctional Services adult correctional facility;9
(4) (3) Indigent means shall mean the inability to retain legal10
counsel without prejudicing one's financial ability to provide economic11
necessities for one's self or one's family. Before a felony defendant's12
initial court appearance, the determination of his or her indigency shall13
be made by the public defender, but thereafter it shall be made by the14
court; and 15
(5) (4) Judge means shall mean a judge of the district court, a16
judge of the county court, or a clerk magistrate. 17
Sec. 3. Section 29-3903, Revised Statutes Cumulative Supplement,18
2024, is amended to read: 19
29-3903 (1) At a felony defendant's first appearance before a judge,20
the judge shall advise him or her of the right to court-appointed counsel21
if such person is indigent. If he or she asserts indigency, the court22
shall make a reasonable inquiry to determine such person's financial23
condition and shall require him or her to execute an affidavit of24
indigency for filing with the clerk of the court. 25
(2) If the court determines the defendant to be indigent, it shall26
formally appoint the public defender or, in counties not having a public27
defender, an attorney or attorneys licensed to practice law in this28
state, not exceeding two, to represent the indigent felony defendant at29
all future critical stages of the criminal proceedings against such30
defendant, consistent with the provisions of section 23-3402. Appointed ,31
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but appointed counsel other than the public defender or county conflict1
counsel must obtain leave of court before being authorized to proceed2
beyond an initial direct appeal to either the Court of Appeals or the3
Supreme Court of Nebraska to any further direct, collateral, or4
postconviction appeals to state or federal courts. 5
(3) A felony defendant who is not indigent at the time of his or her6
first appearance before a judge may nevertheless assert his or her7
indigency at any subsequent stage of felony proceedings, at which time8
the judge shall consider appointing counsel as otherwise provided in this9
section. 10
(4) The judge, upon filing such order for appointment, shall note11
all appearances of appointed counsel upon the record. If at the time of12
appointment of counsel the indigent felony defendant and appointed13
counsel have not had a reasonable opportunity to consult concerning the14
prosecution, the judge shall continue the arraignment, trial, or other15
next stage of the felony proceedings for a reasonable period of time to16
allow for such consultation. 17
Sec. 4. Section 29-3904, Reissue Revised Statutes of Nebraska, is18
amended to read: 19
29-3904 (1) Nothing in sections 23-3402, 29-3902, and 29-3903 shall20
prevent any judge from: 21
(a) Appointing appointing counsel other than the public defender ,22
county conflict counsel, or other substitute counsel when the public23
defender, county conflict counsel, or counsel initially appointed might24
otherwise be required to represent conflicting interests or for other25
good cause shown; , 26
(b) Not from not appointing any counsel for any indigent felony27
defendant who expressly waives his or her right to such counsel at any28
stage of felony proceedings; , or 29
(c) Appointing from appointing the public defender , county conflict30
counsel, or other counsel as may be required or permitted by other31
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applicable law. 1
(2)(a) This subsection only applies to a county that has county2
conflict counsel. 3
(b) When appointing counsel other than the public defender to4
represent an indigent defendant, the court shall appoint county conflict5
counsel, unless such counsel cannot represent the defendant due to6
conflicting interests or for other good cause shown.7
(3) (2) In selecting counsel to represent an indigent felony8
defendant, the prosecuting attorney shall not have any role whatsoever in9
the selection or appointment process of the counsel by the court,10
including, but not limited to, any individual appointment suggestions.11
Sec. 5. Section 29-3905, Reissue Revised Statutes of Nebraska, is12
amended to read: 13
29-3905 Appointed counsel for an indigent felony defendant other14
than the public defender or county conflict counsel shall apply to the15
district court which appointed him or her for all expenses reasonably16
necessary to permit him or her to effectively and competently represent17
his or her client and for fees for services performed pursuant to such18
appointment, except that if the defendant was not bound over for trial in19
the district court, the application shall be made in the appointing20
court. The court, upon hearing the application, shall fix reasonable21
expenses and fees, and the county board shall allow payment to counsel in22
the full amount determined by the court. 23
Sec. 6. Section 29-3918, Reissue Revised Statutes of Nebraska, is24
amended to read: 25
29-3918 Nothing in sections 29-3910 to 29-3918 shall prevent a court26
from appointing counsel other than the public defender or county conflict27
counsel as defined in section 1 of this act to represent indigent28
defendants or other persons by law entitled to legal representation, but29
appointments of counsel other than the public defender or county conflict30
counsel shall be limited to situations in which there are multiple31
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defendants requiring separate representation or when other exigent1
circumstances are present which in the opinion of the court require2
appointment of counsel other than the public defender or county conflict3
counsel. In all such cases of appointments of counsel other than the4
public defender or county conflict counsel, the procedure shall be in5
accordance with sections 43-272 and 43-273 and the cost of such6
appointments shall be paid by the county as provided in such sections.7
Sec. 7. Section 29-3922, Revised Statutes Cumulative Supplement,8
2024, is amended to read: 9
29-3922 For purposes of the County Revenue Assistance Act:10
(1) Chief counsel means an attorney appointed to be the primary11
administrative officer of the commission pursuant to section 29-3928;12
(2) Commission means the Commission on Public Advocacy;13
(3) Commission staff means attorneys, investigators, and support14
staff who are performing work for the capital litigation division,15
appellate division, DNA testing division, and major case resource center;16
(4) Contracting attorney means an attorney contracting to act as a17
public defender pursuant to sections 23-3404 to 23-3408;18
(5) Court-appointed attorney means an attorney other than a19
contracting attorney or a public defender appointed by the court to20
represent an indigent person; 21
(6) Indigent defense services means legal services provided to22
indigent persons by an indigent defense system in capital cases, felony23
cases, misdemeanor cases, juvenile cases, mental health commitment cases,24
child support enforcement cases, and paternity establishment cases;25
(7) Indigent defense system means a system of providing services,26
including any services necessary for litigating a case, by a contracting27
attorney, court-appointed attorney, or public defender;28
(8) Indigent person means a person who is indigent and unable to29
obtain legal counsel as determined pursuant to subdivision (4) (3) of30
section 29-3901; and 31
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(9) Public defender means an attorney appointed or elected pursuant1
to sections 23-3401 to 23-3403. 2
Sec. 8. Section 43-272, Revised Statutes Cumulative Supplement,3
2024, is amended to read: 4
43-272 (1)(a) In counties having a population of less than one5
hundred fifty thousand inhabitants: 6
(i) When any juvenile court petition is filed alleging jurisdiction7
of a juvenile pursuant to subdivision (2) of section 43-247, counsel8
shall be appointed for such juvenile; and 9
(ii) In any other instance in which a juvenile is brought without10
counsel before a juvenile court, the court shall advise such juvenile and11
his or her parent or guardian of their right to retain counsel and shall12
inquire of such juvenile and his or her parent or guardian as to whether13
they desire to retain counsel. 14
(b) In counties having a population of one hundred fifty thousand or15
more inhabitants, when any juvenile court petition is filed alleging16
jurisdiction of a juvenile pursuant to subdivision (1), (2), (3)(b), or17
(4) of section 43-247, counsel shall be appointed for such juvenile.18
(c) The court shall inform any juvenile described in this subsection19
and his or her parent or guardian of such juvenile's right to counsel at20
county expense if none of them is able to afford counsel. If the juvenile21
or his or her parent or guardian desires to have counsel appointed for22
such juvenile, or the parent or guardian of such juvenile cannot be23
located, and the court ascertains that none of such persons are able to24
afford an attorney, the court shall forthwith appoint an attorney to25
represent such juvenile for all proceedings before the juvenile court,26
except that if an attorney is appointed to represent such juvenile and27
the court later determines that a parent of such juvenile is able to28
afford an attorney, the court shall order such parent or juvenile to pay29
for services of the attorney to be collected in the same manner as30
provided by section 43-290. If the parent willfully refuses to pay any31
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such sum, the court may commit him or her for contempt, and execution may1
issue at the request of the appointed attorney or the county attorney or2
by the court without a request. 3
(d)(i) For purposes of this subdivision, county conflict counsel has4
the same meaning as in section 1 of this act. 5
(ii) This subdivision (d) only applies to a county that has county6
conflict counsel. 7
(iii) When appointing counsel other than the public defender to8
represent a juvenile, the court shall appoint county conflict counsel,9
unless such counsel cannot represent the juvenile due to conflicting10
interests or for other good cause shown. 11
(2) The court, on its own motion or upon application of a party to12
the proceedings, shall appoint a guardian ad litem for the juvenile: (a)13
If the juvenile has no parent or guardian of his or her person or if the14
parent or guardian of the juvenile cannot be located or cannot be brought15
before the court; (b) if the parent or guardian of the juvenile is16
excused from participation in all or any part of the proceedings; (c) if17
the parent is a juvenile or an incompetent; (d) if the parent is18
indifferent to the interests of the juvenile; or (e) in any proceeding19
pursuant to the provisions of subdivision (3)(a) of section 43-247.20
A guardian ad litem shall have the duty to protect the interests of21
the juvenile for whom he or she has been appointed guardian, and shall be22
deemed a parent of the juvenile as to those proceedings with respect to23
which his or her guardianship extends. 24
(3) The court shall appoint an attorney as guardian ad litem. A25
guardian ad litem shall act as his or her own counsel and as counsel for26
the juvenile, unless there are special reasons in a particular case why27
the guardian ad litem or the juvenile or both should have separate28
counsel. In such cases the guardian ad litem shall have the right to29
counsel, except that the guardian ad litem shall be entitled to appointed30
counsel without regard to his or her financial ability to retain counsel.31
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Whether such appointed counsel shall be provided at the cost of the1
county shall be determined as provided in subsection (1) of this section.2
(4) By July 1, 2015, the Supreme Court shall provide by court rule3
standards for guardians ad litem for juveniles in juvenile court4
proceedings. 5
(5) By July 1, 2017, the Supreme Court shall provide guidelines6
setting forth standards for all attorneys who practice in juvenile court.7
Sec. 9. Section 43-273, Reissue Revised Statutes of Nebraska, is8
amended to read: 9
43-273 (1) Counsel and guardians ad litem appointed outside of the10
guardian ad litem division as provided in section 43-272 shall apply to11
the court before which the proceedings were had for fees for services12
performed. The court upon hearing the application shall fix reasonable13
fees. The county board of the county wherein the proceedings were had14
shall allow the account, bill, or claim presented by any attorney or15
guardian ad litem for services performed under section 43-272 in the16
amount determined by the court. No such account, bill, or claim shall be17
allowed by the county board until the amount thereof shall have been18
determined by the court. 19
(2) This section does not apply to the public defender or to county20
conflict counsel as defined in section 1 of this act.21
Sec. 10. Section 71-946, Reissue Revised Statutes of Nebraska, is22
amended to read: 23
71-946 (1) The appointment of counsel under section 71-945 shall be24
in accordance with this section. the following procedures:25
(2) In (1) Except in counties not having a public defender, upon the26
receipt from the mental health board of a certificate for the appointment27
of counsel, the clerk of the district court shall notify the district28
judge or the county judge of the county in which the proceedings are29
pending of the receipt of such certificate. The judge to whom the30
certificate was issued shall appoint an attorney to represent the person31
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concerning whom an application is filed before the mental health board,1
whereupon the clerk of the court shall enter upon the certificate the2
name of the attorney appointed and deliver the certificate of appointment3
of counsel to the mental health board. The clerk of the district court or4
the clerk of the county court shall also keep and maintain a record of5
all appointments which shall be conclusive evidence thereof. All6
appointments of counsel under the Nebraska Mental Health Commitment Act7
or the Sex Offender Commitment Act may be made at any time or place in8
the state. ; and 9
(3) (2) In counties having a public defender, upon receipt from the10
mental health board of a certificate for the appointment of counsel, the11
clerk of the district court shall notify the public defender of his or12
her appointment to represent the person and shall enter upon the13
certificate the name of the attorney appointed and deliver the14
certificate of appointment of counsel to the mental health board.15
(4)(a) For purposes of this section, county conflict counsel has the16
same meaning as in section 1 of this act. 17
(b) This subsection only applies to a county that has county18
conflict counsel. 19
(c) When appointing counsel other than the public defender to20
represent a subject, the court shall appoint county conflict counsel,21
unless such counsel cannot represent the subject due to conflicting22
interests or for other good cause shown. 23
Sec. 11. Section 71-947, Reissue Revised Statutes of Nebraska, is24
amended to read: 25
71-947 Counsel appointed as provided in subsection (2) subdivision26
(1) of section 71-946 shall apply to the court in which his or her27
appointment is recorded for fees for services performed. Such counsel may28
also apply to the court to secure separate professional examination of29
the person for whom counsel was appointed and shall be reimbursed for30
costs incurred in securing such separate examination or examinations or31
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in having other professional persons as witnesses before the mental1
health board. The court, upon hearing the application, shall fix2
reasonable fees, including reimbursement of costs incurred. The county3
board of the county in which the application was filed shall allow the4
account, bill, or claim presented by the attorney for services performed5
under the Nebraska Mental Health Commitment Act or the Sex Offender6
Commitment Act in the amount determined by the court. No such account,7
bill, or claim shall be allowed by the county board until the amount8
thereof has been determined by the court. 9
Sec. 12. Section 71-948, Reissue Revised Statutes of Nebraska, is10
amended to read: 11
71-948 A subject or the subject's counsel shall have the right to12
employ mental health professionals of his or her choice to independently13
evaluate the subject's mental condition and testify for and otherwise14
assist the subject in proceedings under the Nebraska Mental Health15
Commitment Act or the Sex Offender Commitment Act. If the subject is16
indigent, only one such person may be employed except with leave of the17
mental health board. Any person so employed by a subject determined by18
the board to be indigent, except a subject represented by the public19
defender or county conflict counsel as defined in section 1 of this act,20
shall apply to the board for expenses reasonably necessary to such21
person's effective assistance of the subject and for reasonable fees for22
services performed by such person in assisting the subject. The board23
shall then fix reasonable fees and expenses, and the county board shall24
allow payment to such person in the full amount fixed by the board.25
Sec. 13. Original sections 29-3901, 29-3904, 29-3905, 29-3918,26
43-273, 71-946, 71-947, and 71-948, Reissue Revised Statutes of Nebraska,27
and sections 29-3903, 29-3922, and 43-272, Revised Statutes Cumulative28
Supplement, 2024, are repealed. 29
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