STANDARDS AND PROCEDURES RELATING TO THE APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN CORYELL COUNTY

  To implement the Texas Fair Defense Act (FDA, Acts 2001, 77th Leg.) the following local rules of administration are adopted under Texas Local Government Code Section 74.095, as an alternate plan under Article 26.04 code of Criminal Procedure.

INDIGENT DEFENSE

Applicability:

  1.01    The rules in this Part will govern criminal procedures in the County Court at Law in this County, notwithstanding any other local rule to the contrary.

Procedures for Timely Appointment of Counsel

  2.01     Prompt Appearance Before a Magistrate.

             A. The magistrates of this county will inform supervisory personnel of all law enforcement agencies operating within the county that each time a person is arrested, Texas law requires the officer making the arrest and any officer who later has custody to ensure that the person is taken before a                                 magistrate without unnecessary delay, and never more than 48 hours after arrest.

            B. The judges of this county will work with the magistrates, prosecutors, and law enforcement agencies in the county to devise appropriate procedures for meeting the time standards set forth in Rule 2.01(A).

           C. Whenever an arrested person is first brought before a magistrate, the magistrate shall record the date and time that the person was first arrested and taken into custody.

          D.  If a magistrate or a judge has reasonable cause to believe that a law enforcement officer has engaged in unnecessary delay in taking a defendant before a magistrate after arrest, the magistrate or judge will inform the law enforcement officer’s supervisors. In the event of repeated incidents of                            unnecessary delay by a law enforcement agency or officer, the judges will initiate communications with the law enforcement agency regarding corrective measures to ensure compliance with Rule 2.01(A) and with any procedures adopted pursuant to Rule 2.01(B).

  2.02    Responsibilities of the Magistrate:

             A.   Whenever an arrested person is first brought before a magistrate, the magistrate shall immediately perform the duties described in Article 15.17 of the Code of Criminal Procedure, including:

                    1.  The magistrate shall specifically inform the person arrested of the person’ s right to request appointment of counsel if the person cannot afford counsel.

                   2.  The magistrate shall specifically ask the person arrested whether the person wants to request appointment of counsel.

                   3.  The magistrate shall specifically inform the person of the procedures for requesting appointment of counsel.

                  4.  The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the time of the Article 15.17 hearing.

                  5.  The magistrate shall ensure that the above information and assistance are provided in a manner and using terminology and language that the arrested person can understand.

                  6.  If the arrested person does not speak and understand the English language or is deaf, the magistrate shall ensure that the information and assistance are provided with the assistance of an interpreter consistent with Articles 38.30 and 38.31 of the Code of Criminal Procedure.

                  7.  If a magistrate has cause to believe that a person is not mentally competent to decide whether to request counsel, the magistrate will enter a request for counsel on the person’s behalf. The magistrate shall record this request for counsel in a way that alerts Indigent Defense Coordinator (IDC)                           that such defendant may not be mentally competent and that counsel competent to represent mentally ill defendants should be appointed.
       
            B.  In each case in which an arrested person is taken before a magistrate for an Article 15.17 hearing, the magistrate will make an electronic or written record documenting:

                 1 . that the magistrate informed the person of the person’s right to request appointment of counsel;

                 2.  that the magistrate asked the person whether the person wanted to request appointment of counsel; and 

                 3.  whether the person requested appointment of counsel.

           C. The record required under Rule 2.02(B) may be combined on the same form used to record the arrested person’s request for appointment of counsel and to transmit that request to the IDC.

           D. The records required under this Rule shall be maintained as required by law or for the same period required for all official records of criminal court proceedings if no specific rule controls.

  2.03    Transmittal of Request for Appointed Counsel: If the person arrested requests appointment of counsel the magistrate shall transmit or cause to be transmitted to the IDC the forms requesting appointment of counsel without unnecessary delay and so that the IDC receives the forms no later than                24 hours after the request is made.  Requests for appointment of counsel shall be transmitted by email to the IDC.  If such time shall fall upon a Saturday, Sunday or legal holiday, the request for counsel will be sent so that it is received on the first working day thereafter.

  2.04    Prompt Appointment of Counsel:  Counsel shall be appointed in the manner specified in Rule 4 below, as soon as reasonably possible, but not later than the end of the third working day after the date on which the IDC receives the defendant’s request for counsel. “Working day” means Monday                though Friday, except for official holidays.

  2.05    Defendant not in Custody:

            A.  Notwithstanding any other provision of this section, if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated,                           whichever comes first.  If the defendant is not in custody and wishes to request a court attorney appointment prior to the first court appearance, it is the defendant's responsibility to contact the IDC and provide financial information so that a determination of indigence can be made.

            B. When counsel is appointed for a defendant who is not in custody or the defendant is released from custody after appointment of counsel, the defendant shall be responsible for maintaining contact with the appointed attorney, informing the attorney and the court of any changes in address or                              telephone number given on the request for appointment of counsel.

  2.06    Procedures for arraignment of defendants arrested on an out of county warrant or arrested in an adjacent county and arraigned pursuant to 15.17 (a) of the Code of Criminal Procedure

            When a person is arrested on a warrant for an offense alleged to have occurred in another county or when such person is brought before a magistrate of Coryell County after having been arrested in an adjacent county pursuant to article 15.17 (a) of Code of Criminal Procedure, the magistrate shall                 arraign defendant as provided in article 15.17 and the Standards and Procedures relating to the appointment of counsel for indigent defendants in Coryell County and shall inform the defendant of his right to request appointment of counsel  as provided therein.  Thereafter, as provided in article 15.19               of the Code of Criminal Procedure, the magistrate will immediately notify the Sheriff of the County in which the offense is alleged to have been committed of the arrest and commitment of the defendant.  The magistrate will, at the same time, notify such Sheriff of any request of appointment of counsel               made by said defendant and shall fax to said Sheriff a copy of the arraignment form indicating the request for counsel.  It is the obligation of the Sheriff of the county in which the offense is alleged to have been committed to provide assistance in completing any forms necessary to request appointment              of counsel and shall provide those forms to the appropriate court or person designated to make appointments in that county in accordance with the Code of Criminal Procedure and the Plan for Appointment of Counsel adopted in that county.

  2.07    Procedures relating to defendants arrested on a warrant alleging an offense committed in Coryell County but who are arrested in another county or state:

            Upon taking custody of a person arrested out of state or in another county into the county jail or other place of incarceration in Coryell County, the Sheriff of Coryell County or other person having custody of such defendant shall take the defendant before a magistrate as if he had been arrested in                  Coryell County.  If informed that the defendant has previously been arraigned and has requested appointment of counsel, the Sheriff or other person having custody of said defendant shall insure that the defendant receives adequate assistance in completing the necessary forms for appointment of counsel            and shall  forward them to the IDC as provided by the Standards and Procedures Relating to the Appointment of Counsel for Indigent Defendants in Coryell County.

Procedures and Financial Standards for Determining Whether a Defendant is indigent

3.01  Definitions: As used in this rule:

         A.  “Net household income” means all income of the defendant and spousal income actually available to the defendant.  Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); net self employment income                  (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions or annuities; and income from dividends, interest, rents,                royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the defendant has no income or lesser income.

         B.  “Assets and resources” means cash in hand, stocks and bonds, accounts at financial institutions, and equity in real or personal property that can be readily converted to cash.

        C.  ”Household” means all individuals who are actually dependent on the defendant for financial support, or from which the defendant is entitled to support.

        D.  “The cost of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.

        E.  "Indigent" means a person who is not financially able to employ counsel.

3.02    The financial standards set forth below shall be used to determine whether a defendant is indigent
and shall be applied equally to each defendant in the county.

           A.   In determining whether a person requesting appointment of counsel is indigent, the Court shall consider the following factors:

                 1. The net household income of the defendant, the assets and resources available to the defendant as those terms are defined herein,

                 2. The outstanding financial obligations as they may occur during the time that counsel may reasonably be expected to represent the defendant, the reasonable and necessary expenses for the maintenance of the defendant’s household and dependents, and the number, age, and exceptional financial                      needs, if any, of the dependents.

                 3. The nature of the offense or offenses with which the defendant is charged, the possible punishment for those offenses, the complexity and likely duration of the representation, the necessity for investigators and expert witnesses, the fees and retainers charged by competent counsel in Coryell and                        contiguous counties for defending such offenses, and the effort made by the defendant to retain counsel to represent him.

                4. Whether the defendant is presently committed to a penal institution or a mental health facility, whether the defendant or his dependents are currently qualified for or receiving temporary assistance to needy families, supplemental security income, or public housing; and

                5.  If, taking all the above factors into consideration, the Court determines that the defendant is not able or cannot be reasonably expected to retain counsel to represent him, the Court shall appoint counsel for the defendant.  In making this determination, the likelihood that a defendant may be                              required to liquidate assets, deplete savings accounts or retirement accounts available to the defendant, decrease or eliminate expenditures, or otherwise diminish his customary lifestyle, shall not necessitate a finding of indigence.   

3.03    Factors Not to be Considered:

          A.  A defendant’s posting of bail or ability to post bail may not be considered in determining whether the defendant is indigent or partially indigent, except to the extent that it reflects the defendant’s financial circumstances measured by the criteria set forth above,

          B.  The resources available to friends or relatives not legally responsible for the support of the defendant may not be considered in determining whether the defendant is indigent.  The income, assets and resources of a parent of a defendant who is under 18 years of age or claimed as a dependent for                    Federal income tax purposes may be considered and a parent may be required to appear before the court and make the same financial disclosures as a defendant.

3.04    Procedures for Determining Indigence:

          A.  As soon as possible following arrest, and in any event not later than twenty-four (24) hours after the Article 15.17 hearing, the magistrate shall provide or cause to be provided to the IDC the magistration form indicating a request for appointment of counsel as set out in Rule 2.03.

         B. The IDC or designee will use the Fair Indigent Defense Online (FIDO) System to assess the accused's qualifications for appointed Counsel.  The IDC or designee will contact the arrestee within 3 working days of receiving the request for appointed counsel from the magistrate and complete the                         financial questionnaire using the FIDO System. The financial questionnaire will be signed electronically.

        C. The FIDO System will determine whether the accused qualifies for indigence and if so will make an appointment from the list of attorneys maintained in the FIDO System.  The FIDO System will automatically notify the attorney of the appointment by email.  A copy of the appointment letter will be                  forwarded to the County Court Coordinator by the IDC.  A copy of the appointment letter and the financial questionnaire will be maintained in the IDC's Office until the charge is filed, at which time the documents will be forwarded to the County Clerk's Office to be placed in the defendant's file.                    Appointment of counsel constitutes a finding of indigence.

        D. The arrested person may be required by the magistrate, the appointing judge, the IDC, or the judge presiding over the case to respond to examination regarding the person’s financial resources in addition to providing required information by affidavit.


        E.  A written or oral statement elicited under this article or evidence derived from the statement may not be used for any purpose, except to determine the defendant’s indigence or to impeach the direct testimony of the defendant.  This subsection does not prohibit prosecution of the defendant under                    chapter 37 of the Penal Code.

        F.  A defendant determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the defendant’s financial circumstances occurs.

        G.  A defendant’s status as indigent or not indigent maybe reviewed in a formal hearing at any stage of a court proceeding based on evidence of a material change in the defendant’s financial circumstances. A defendant’s status as indigent or not indigent also may be reviewed in a formal hearing at any                  stage of a court proceeding based on additional information regarding financial circumstances, subject to the presumption. If a defendant previously determined to be indigent subsequently is determined not to be indigent, the appointed attorney shall be compensated by the county in accordance with                these Rules for time reasonably expended on the case.

3.05  Payment by Defendant:

        A.  A court that finds that a criminal defendant has financial resources to offset, in part or in whole, the costs of legal services provided under these rules may order the defendant to pay the county that portion of the costs of legal services that it finds that the defendant is able to pay.
     
       B.  Upon disposition of the defendant’s case the Court may assess the costs of legal services paid by the county as a judgment in the event of conviction or deferred adjudication and may order such costs paid as a condition of any probation granted in the case.  In the event of dismissal or acquittal the                 Court may order such costs be paid by the defendant in a lump sum or in installments to the clerk of the court.  Failure by a defendant to pay such costs in a reasonable manner consistent with the defendant’s financial resources may be punished by contempt or capias pro fine in the discretion of the                 Court. 

3.06  Eligibility for Appointment:

         A.  An accused is presumed indigent if any of the following conditions or factors are present:

              1.  At the time of requesting appointed counsel, the accused or accused’s dependents are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing;

             2.  The accused’s net household income does not exceed 125% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register; or

             3. The accused is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought.

             4. In determining the defendant's gross household income, the income of a victim of domestic violence or the income of a parent/guardian of a victim of domestic violence shall not be considered.  Crimes of domestic violence include any assault on a child that is a member of the defendant's household                  or assault on any adult who is a member of the defendant's household.

             5. Asset Test: The defendant owns not more than $5,000 in Equity Assets.  Equity Assets are defined as the fair market value of marketable assets less indebtedness thereon.

        B.  Verification of Information:  A determination of indigence is based upon the information provided by the defendant. The IDC should be diligent in the interview process to ensure that the information provided by the defendant seems probable and accurate. The IDC should advise the Defendant that                 information in the Financial Questionnaire should be accurate and complete.  Defendants knowingly providing false information or providing information that they should have known was false or inaccurate are subject to possible legal recourse.  The financial questionnaire will be signed electronically                 in the FIDO System.

        C. An accused who does not meet any of the standards above shall nevertheless be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the accused’s dependents. In considering if obtaining private counsel will create a substantial hardship,               the appointing authority shall take into account: 

           1.    the nature of the criminal charge(s), 

           2.    anticipated complexity of the defense, 

           3.    the estimated cost of obtaining competent private legal representation for the matter(s) charged; 

          4.    the amount needed for the support of the accused and the accused’s dependents;  

         5.    accused’s income, 

         6.    source of income, 

        7.    assets and property owned,   

        8.    outstanding obligations, 

        9.     necessary expenses, 

       10.     the number and ages of dependents, and

       11.   spousal income that is available to the accused.

Selection and Appointment of Counsel

4.01    Method of Appointment: Attorneys shall be appointed to represent indigent defendants from an appointment list maintained by the District Court and the County Court at Law, hereinafter referred to as the Judges, using a system of rotation as further specified in this rule.  This list will also be                        maintained in the FIDO System by the IDC.  The FIDO System uses a system of rotation for appointments as further specified in this rule.

4.02    Public Appointment Lists: The judge of each court shall create a list of attorneys qualified in his or her court, which shall be combined into a unified list for the use of the Courts, the IDC, and the magistrates of Coryell County as set out in these rules.

          The Judge of each court may, in the Judge’s discretion, create a list of more than one tier of attorneys subject to appointment.  Such list may distinguish between qualified attorneys residing in and/or maintaining an office in Coryell County as described in 4.04 (a) of this plan and attorneys who reside in             or maintain office in counties other than Coryell County.  The Judge may show preference in appointment of counsel to those counsel who reside in or maintain offices in Coryell County.  In any event, all attorneys appointed under this plan shall meet the requirements set our herein.    


4.03     Attorney Qualifications: At least twice a year, on or before January 1st and July 1st, or more frequently as the Court may allow, attorneys may apply to be included on the appointment list. The Judges hearing criminal cases shall establish an attorney appointment list. An attorney must be approved             by the Statutory County Court at Law Judge hearing criminal cases.  Attorneys may apply for and be placed on multiple lists. To be eligible for placement on the list attorneys must have met the following minimum qualifications to represent a defendant in the stated level of offense.

          A.    Misdemeanor List qualified for class A and B misdemeanor representation:

                 1.    Currently Licensed and in good standing with the State Bar of Texas;

                 2.    Practiced in the area of criminal law for at least one year which may include participation as an intern in a legal education program or practicing under supervision prior to licensing;

                 3.    Exhibited proficiency and commitment to providing quality representation to criminal defendants;

                 4.    Exhibited professionalism and reliability when providing representation to criminal defendants;

                 5.    Completed 6 hours a year of continuing legal education course relating to criminal law as recognized by the State Bar of Texas; and

       B.    Appellate List:

             1.    Have met the qualifications set forth in the requirements for placement on the Misdemeanor List; and

             2.    Have met at least one of the following criteria

                    a. be currently board certified in criminal law by the Texas Board of Legal Specialization;

                    b. have personally authored and filed at least 5  criminal appellate briefs or post-conviction writs of habeas corpus; or
 
                    c. have submitted an appellate writing sample approved by a majority of the judges.
    
                   d. have worked as a briefing clerk of an appellate court having criminal jurisdiction for a period of one year or more.

      C.  During the first year of the plan attorneys who otherwise meet the requirements set forth above but who do not have the required number of hours of continuing legal education or number or type of trials previously tried, may be appointed as provided in these rules when the appointing judge                             determines that such appointment is necessary to provide a sufficient number of appointed counsel, that such appointment will provide adequate, competent representation of the defendant, and the attorney to be appointed presents to the court a realistic and attainable plan to be in compliance                         with the standards herein within one year from the date of the attorney’s application for appointment.  Failure by the attorney to pursue the plan presented or to qualify within the one year period will result in the attorney being removed from the list of appointed counsel.

4.04 Additional Qualifications and Requirements of Appointed Counsel:
        
Attorneys applying for consideration of appointment to represent indigent defendants will meet the following additional requirements:

    A.  Court appointed counsel on the approved list must maintain an office with a phone which is answered by a receptionist or answering service from 8:00 a. m. to 12:00 p. m. and from 1:00 p. m. to 5:00 p. m. Monday through Friday (except for holidays as set out in the official Coryell County calendar              approved by the Coryell County Commissioner’s Court) and which receptionist or answering service can promptly locate the attorney and notify said attorney of appointment or hearing setting.  Court appointed counsel on the approved list must maintain an email account which may receive                            appointments 24 hours a day, seven days a week.  Attorneys shall also provide to the Court Coordinator of each court and the IDC their home telephone number and cellular telephone number.  These numbers shall be included on the “ Affidavit of Licensed Attorney Residing or Practicing Law in                  Coryell County, Texas” and shall be the official numbers, which will be utilized by the court to inform counsel of appointment or court hearing.  Any change in these notification numbers must be given in writing to each Court prior to or within 24 hours after the change.

   B.  Court appointed counsel shall comply with all laws, rules procedures, and ethical provisions for   providing reasonable assistance of counsel to their client.    

  C.  Court appointed counsel shall maintain a high standard of ethical conduct and always be completely candid with the trial court.

  D.  Court appointed counsel shall timely inform their client of matters relating to the preparation, trial, and disposition of the case; appellate and writ rights, deadlines, and procedures for proper processing, and such other matters as necessary to provide reasonable assistance of counsel.

  E.  Court appointed counsel shall represent a defendant until the defendant is acquitted, appeals are exhausted, or the court, after entering a finding of good cause on the record, relieves the attorney and /or replaces the attorney with other counsel.

  F.  Court appointed counsel shall submit by October 15th each year the percentage of the attorney practice time that was dedicated to work based on appointments accepted in this county for adult criminal cases for the prior 12 months that begins on October 1 and ends on September 30 [Art. 26.04(j)(4),         CCP.  This information will be reported on the Texas Indigent Defense Commission Attorney Reporting Form and will be submitted to the IDC no later than October 15th of each year.

4.05 Approval of Attorneys by the Judges:

  A.  In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on the appointment lists only if each judge approves the attorney’s placement on each such list. 

  B.  At least twice a year, but at any time the Judge deems it to be appropriate, following the submission of attorney applications for the public appointment lists, the judge of each court shall evaluate the new applicants for appointment and the attorneys already on the lists. The judge may approve those                attorneys:

      1.  who meet the objective qualifications set forth in Rule 4.03 for placement on the list; and

      2.  whom the judge considers to be actually competent to adequately handle cases associated with the list.

  C.  Any judge may delegate any of the responsibilities for appointment of counsel described in these rules to a magistrate or the IDC who is a county employee hired to address administrative matters associated with indigent defense.  The Court Coordinator of each court may serve in this capacity.

  D.  The IDC will appoint the lawyer whose name appears next in order, using the FIDO System, that corresponds to the most serious offense as currently charged, unless:

        1.   the defendant requesting appointed counsel does not understand English, in which case the person making the appointment will appoint the lawyer who both appears next in order on the list and can communicate with the defendant in the defendant’s language; or

        2.   the person making the appointment exercises discretionary authority to appoint one of the  attorneys whose name is among the next five names in order on the appropriate list; or

       3.   the person making the appointment finds good cause for appointing any qualified, willing attorney regardless of whether the attorney’s name is among the first five names on the list.

      4.   Whenever a lawyer is appointed out of order, the lawyer who is appointed out of order will move to the last place in order on that list, and any lawyer who was not appointed will remain at the top of the list until appointed or removed from the list.  

      5.   The person making the appointment may give preference to attorneys residing in and/or maintaining offices in Coryell County as set fort in 4.02 above.  In making the determination whether to appoint Coryell County counsel or out of county counsel the court may consider the nature of the offense, the            existence of co-defendants, conflicts of interest, current pending charges against the defendant in other counties, the place of residence of the defendant and difficulties in transportation of the defendant, and any other good cause determined by the court.

     6.   Each attorney appointed under this Rule to represent the defendant in the trial court is appointed to represent the defendant through trial and post-trial proceedings in the trial court.

     7.   At the conclusion of all proceedings in the trial court, including post-trial motions, if an indigent defendant wishes to file at appeal, the appointing judge or person(s) designated by the judges to appoint counsel will appoint the lawyer whose name appears next in order on the Appellate List subject to the            same rotation requirements as those in these rules.

4.06 Removal of Attorney from Appointment Lists:

        A.  An attorney may be removed from the list of appointed attorneys when in the opinion of the appointing Judge and in his opinion the attorney no longer provides representation in a competent and professional manner.  Such action shall be in the discretion of the Judge and may be based upon the                       following actions by the attorney:

            1.  Intentionally or repeatedly failing to make every reasonable effort to contact the defendant not later than the end of the first working day following the date of appointment and notification of the attorney as provided herein.

            2.  Failure to maintain appropriate contact with the defendant so that his case is adequately investigated and prepared for trial.
 
           3.   Failure to timely appear before the Court for settings in appointed or retained criminal or civil cases.

           4.  Sanction by a trial or appellate court of the State of Texas ,  or The State Bar of Texas or any other disciplinary body for failure to comply with the Rules of Professional Conduct, a violation of the rules of criminal or civil procedure subject to sanction, or failure to adhere to the Texas Lawyer’s                       Creed.

     B.  An attorney may be removed from the appointment list by the judge whenever the judge determines that the attorney no longer meets the objective qualifications for that list or is not fully competent to adequately handle the category of cases associated with that list. The judges may in their discretion               remove an attorney not qualified for a category of offenses, while continuing to approve the attorney for other offenses.

4.07    Unavailability of Attorney:

  A.  An attorney on the list of qualified attorneys shall keep each court and the IDC informed of any situation in which it is anticipated that the attorney’s office will be closed, the attorney will be absent from his office for such a time that he cannot contact a defendant whom he is appointed to represent within         the time limits established in these rules, or any situation in which the attorney anticipates that he will not be able to adequately represent a defendant as required by these rules. Such notice shall be in writing and sent by telephone facsimile to the Court Coordinator of the court and by email to the IDC

  B.  If the attorney is going to be unavailable for more than three days, it is the attorney's responsibility to enter the attorney portal of the FIDO System and make themselves inactive.  It is also the attorney's responsibility to make themselves active again upon their return.  This can also be accomplished by            sending an email to the IDC indicating the dates they are unavailable..

4.08    Appointment of counsel:
 
  A.  When the IDC has received a request for appointment of counsel as provided by these rules and has determined that the defendant is indigent, the IDC will determine the classification of the offense charged and any circumstances of the offense or the defendant relevant to appointment of counsel and will appoint counsel as provided in the rules. Such appointment may be by telephone or other electronic means.

  B.  In the event that the IDC or designee is not available or the judge of the court having jurisdiction of the offense is not available and not expected to be available within the time provided by these rules for appointment of counsel, the judge of the other court will appoint counsel making an effort to appoint counsel next in order.

  C.   In the event that the IDC or designee and  both judges are unavailable and not expected to be available within the time provided for the appointment of counsel, the magistrate holding the Article 15.17 hearing or other persons designated by the judge shall appoint counsel as provided in the rules.

PROMPT APPOINTMENT OF COUNSEL

5.01  Prompt Appointment of Counsel:

  Counsel shall be appointed in the manner specified below, as soon as reasonably possible, but not later than the end of the third working day after the date on which the IDC or designee receives the defendant’s request for counsel. “Working day” means Monday though Friday, except for official holidays. 

5.02  Defendant not in Custody:

  A.  Notwithstanding any other provision of this section, if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever           comes first.

  B.  When counsel is appointed for a defendant who is not in custody or the defendant is released from custody after appointment of counsel, the defendant shall be responsible for maintaining contact with the appointed attorney, informing the attorney and the court of any changes in address or telephone              number given on the request for appointment of counsel.

5.03  Defendants Appearing Without Counsel: 

   If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement: 

   A. The court may not direct or encourage the defendant to communicate with the attorney representing the state until the court advises the defendant of the right to counsel and the procedure for requesting appointed counsel and the defendant has been given a reasonable opportunity to request appointed  counsel.

  B. If the defendant has requested appointed counsel, the court may not direct or encourage the defendant to communicate with the attorney representing the state unless the appointing authority has denied the request and, subsequent to the denial, the defendant:

     1.  Has been given a reasonable opportunity to retain and has failed to retain appointed counsel; or

    2.  Waived or has waived the opportunity to retain private counsel.

5.04  The attorney representing the state may not:

  A. Initiate or encourage an attempt to obtain from the defendant a waiver of the right to counsel; or

  B. Communicate with a defendant who has requested the appointment of counsel, unless the appointing authority has denied the request and subsequent to the denial, the defendant has been given a reasonable opportunity to retain counsel or waives or has waived the opportunity to retain private counsel.

5.05  Waiver of the Right to Counsel

  A,   A defendant may voluntarily and intelligently waive the right to counsel.

  B.   A waiver obtained in violation of  the sections above is presumed invalid.

  C.   If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation.  If the               court determines that the waiver is voluntarily and intelligently waived, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings.

       "I have been advised this ___ day of ____, 20__, by the (name of court) Court of my right to representation by counsel in the case pending against me.  I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge.  Understanding my right to have counsel          appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me.  I hereby waive my right to counsel. (signature of defendant)"

  D.  A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel.  If the defendant withdraws a waiver, the trial court, in its discretion, may provide the            appointed counsel 10 days to prepare.

Replacement of Appointed Counsel

6.01  Method of Appointment: Attorneys shall be appointed to represent indigent defendants from an appointment list approved and maintained by the Distinct Court and County Court at Law, hereinafter referred to as the Judges, and also maintained in the FIDO System by the IDC, which uses a system of rotation.

6.02  Attorney Request:  A lawyer may be relieved from an appointment upon satisfying the judge that the lawyer has good cause for being relieved and that the client will not be prejudiced.

6.03  Judicial Determination:  The judge presiding over a criminal case may replace appointed counsel after entering written findings in the record showing good cause for the replacement and no prejudice to the defendant, including, without limitation:  Current information about the defendant and charges indicates that counsel of different qualifications is appropriate for the defendant under these rules.

6.04 Defendant Request:  The judge presiding over trial court proceedings in a criminal case will replace appointed counsel at the defendant’s request if:

  A. The defendant requests an attorney other than trial defense counsel for appeal or post-conviction habeas corpus proceedings; or

  B. The defendant shows good cause for replacing appointed counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.

6.05  Appointing Replacement Counsel:  Whenever appointed counsel is replaced under this Rule, replacement counsel immediately shall be selected and appointed in accordance with the procedures described in these rules.

ATTORNEY FEE SCHEDULE AND COMPENSATION OF APPOINTED ATTORNEYS

7.01    Fee Schedule:  The county will pay appointed counsel for all time reasonably necessary for adequate representation of the defendant, as approved by a judge, according to the following fee schedule adopted as provided under Article 26.05(b) of the Code of Criminal Procedure:

7.02    Judicial Determination of Attorney Compensation:  The judge presiding over the case for which the appointed attorney seeks compensation will use the following procedures to review and approve the appropriate compensation:

  A. The appointed counsel must submit to the presiding judge a form approved by the judges for itemizing the services performed.

  B.  The presiding judge hearing a motion under this Rule will either approve the amount requested or enter written findings stating the amount of payment that the judge approves and the reason for approving an amount different from the requested amount.

  C.  An attorney whose request for payment is disapproved may appeal the disapproval by filing a motion with the trial judge or the presiding judge of the administrative judicial region, as provided under Article 26.05(c) of the Code of Criminal Procedure.

  D.  The county will reimburse appointed attorneys for investigation and expert witness expenses incurred on behalf of an indigent client as provided under Articles 26.05(d) and 26.052 of the Code of Criminal Procedure.

7.03    Payment of  Investigators and Expert Witnesses:  Counsel appointed in a non-capital case shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.  Expenses incurred with and without prior court approval shall be reimbursed, according to the procedures set forth below.  When possible, prior court approval should be obtained before incurring expenses for investigation and for mental health and other experts.
    
7.04  Procedure with prior Court approval:

  A.  Appointed counsel may file with the trail court a pretrial ex parte confidential request for advance payment of investigative and expert expenses.  The request for expenses must state, as applicable:

       1.  the type of investigation to be conducted or the type of expert to be retained;

       2. specific facts that suggest the investigation will result in admissible evidence or that the services of an expert are reasonably necessary to assist in the preparation of a potential defense; and

      3.  an itemized list of anticipated expenses for each investigation or each expert.

  B.  The Court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable.  If the Court denies in whole or in part the request for expenses, the Court shall:

       1.  state the reasons for the denial in writing;

      2.  attach the denial to the confidential request; and

      3.  submit the request and denial as a sealed exhibit to the record.

7.05  Procedure without  prior Court approval:

Appointed counsel may incur investigative or expert expense without prior approval of the Court.  On presentation of a claim for reimbursement, the Court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.  Unreasonable or unnecessary expenses will not be approved.  Expenses for investigators or expert witnesses will not be deemed reasonable and necessary if incurred without prior approval of the Court unless Counsel can show that such expenses were immediately necessary to incur and that the Court could not be contacted to request approval of such expenses prior to their being incurred, and in no event shall exceed $200.        

NOTICE OF APPOINTMENT, DETERMINATION, AND CONTACT WITH THE DEFENDANT

8.01    Notice of Determination that the Defendant is Not Indigent:  If the IDC determines that a person who requests appointment of counsel is not indigent under the standards and procedures described in Rule 3, he or she will print a copy of the Finding of Indigent Ineligibility, and provide a copy to the County Court at Law Court Coordinator and the defendant.

8.02    Notice of Determination that the Defendant is Indigent and Appointment of Counsel: If the IDC finds that a person who requests counsel is indigent, the FIDO System will automatically send an appointment letter to the appointed attorney by email and the indigent person will be provided a copy of the appointment letter.  A copy of the appointment letter and financial questionnaire will be maintained as set out in Rule 3.04 C.

8.03    Attorney Acceptance of Appointment and Contact with the Defendant: The appointed attorney is required to provide the IDC, within 72 hours of receiving notice of appointment, an acknowledgment of the appointment and a confirmation that the attorney has made the reasonable effort required under Article 26.04(j)(1) to contact the defendant by the end of the first working day after the date of the appointment.

  A. The appointed attorney shall deliver the acknowledgment and confirmation on a form approved by the judges or IDC to the IDC by email.

  B. The attorney shall confirm that by the end of the first working day after the date of appointment the attorney initiated contact with the defendant by regular mail, facsimile, telephone, or in-person contact.

  C.  In addition to the above duties, the appointed attorney shall have the further duty to interview the defendant as soon as practicable after the attorney is appointed, but no later than ten working days.

Coryell District and County Court Acknowledgment of Court Appointed Attorney.doc (11/6/2009 1:49:57 PM) view
Coryell District and County Court Affidavit of Indigence.xlsx (10/21/2011 4:53:07 PM) view
Coryell District and County Court Attorney Application for Appointment.pdf (11/7/2014 11:24:31 AM) view
Coryell District and County Court Attorney Fee Schedule.docx (11/1/2023 11:25:30 AM) view
Coryell District and County Court Attorney Fee Voucher.doc (10/21/2011 4:58:08 PM) view
Coryell District and County Court Combined Annual Renewal and Practice Time Form.docx (10/30/2014 3:34:55 PM) view
Coryell District and County Court Coryell District and County Court Acknowledgment of Court Appointed ATtorney.pdf (10/30/2017 11:25:14 AM) view
Coryell District and County Court Magistrates Warning Form.pdf (11/6/2009 3:24:48 PM) view
Coryell District and County Court Waiver of Counsel.docx (11/6/2009 1:52:16 PM) view