Coryell District Court and County Court Plan
STANDARDS and PROCEDURES RELATING to the
APPOINTMENT OF COUNSEL for INDIGENT DEFENDANT 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 effective June 30, 2003:
1.01 The rules in this Part will govern criminal procedures in the County Court at Law and District Court 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 the 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 and has completed the necessary forms, the magistrate shall transmit or cause to be transmitted to the appointing judge or IDC, the forms requesting appointment of counsel and shall be transmitted 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 as soon as reasonably possible after the Article 15.17 hearing to the email address of the Indigent Defense Coordinator (IDC).
2.04 Procedures for arraignment of defendants arrest on an out of county warrant or arrest in an adjacent county and arraigned pursuant to 15.17 (a) of the Code of Criminal Procedure:
A. 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 the 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 IDC in that county in accordance with the Code of Criminal Procedure and the Plan for Appointment of Counsel adopted in that county.
B. At the Article 15.17 hearing ("magistration"), the magistrate must inform a person arrested on an out-of-county warrant of the procedures for requesting counsel and must ensure reasonable assistance in completing the necessary forms. The magistrate will notify the IDC of the request for an out-of county attorney by providing the IDC with the magistration form within 24 hours of the 15.17 hearing. Once the magistration form is received, the IDC will obtain the financial form for the county issuing the warrant from the TIDC website, interview the person and then transmit the information to the appropriate appointing authority in the issuing county within three working days of receiving the magistration form.
2.05 Procedures relating to defendant's arrest 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 appointing court or IDC by the Standards and Procedures Relating to the Appointment of Counsel for Indigent Defendants in Coryell County.
Indigence Determination Standards
Indigence Determination Standards
Procedures and Financial Standards for Determining Whether a Defendant is Indigent
3.01 Definitions, as used in this rule:
A. “Indigent” means a person who is not financially able to employ counsel.
B. “Net household income” means all income of the accused and spousal income actually available to the accused. The income of a significant other if they are residing with the accused and the income is available to the accused. 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 accused has no income or lesser income.
C. “Household” means all individuals who are actually dependent on the accused for financial 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. “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.
3.02 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. 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. 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.
C.. 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. Each Financial Questionnaire form should then be signed by the Defendant except as provided in Rule 3.06C..
D. 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.
E. Factors NOT to be considered in determining indigence:
1. The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.
2. The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.
F. Only the accused's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
3.03. Indigence Proceedings:
A. The appointing authority can require the accused to respond to questions about the accused’s financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
B. Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:
1. Determining if accused is (or is not) indigent; or
2. Impeaching direct testimony of accused regarding the accused’s indigence.
C. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the time lines specified in these rules and contained in Code of Criminal Procedure article 1.051.
D. An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused’s financial circumstances occurs.
An accused’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the accused, the accused’s attorney, or the attorney representing the state. The accused’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:
1. Evidence of a material change in the accused’s financial circumstances, as a result of which the accused does not meet any of the standards for indigence contained in these rules; or
2. Additional information regarding the accused’s financial circumstances that shows that the accused does not meet any of the standards for indigence contained in these rules.
3. If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.
E. If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.
3.04 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.
In determining whether a person requesting appointment of counsel is indigent, the Court shall consider the following factors:
A. The net household income of the defendant, the assets and resources available to the defendant as those terms are defined herein,
B. 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.
C. 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.
D. 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
E. 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.
F. 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.
3.05 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 arresting law enforcement agency, County Jail, or magistrate shall provide the IDC with a copy of the arrested person's form (magistration form) requesting an appointed attorney. This will be accomplished by email as set out in Rule 2.03.
If the magistrate has failed to provide or cause to be provided the magistration form to the IDC within the required time frame and the defendant is in custody, the IDC will obtain the magistration form from the defendant’s jail file in order to determine indigence. Indigence can be determined without the magistration form. A comment will be made on the Financial Questionnaire as to why the magistration form or information from the form is not available.
B. The IDC or designee will use the County approved software to assess the accused's qualifications for appointed counsel. The IDC or designee will contact the defendant within three working days of receipt of the request for appointed counsel and complete the Financial Questionnaire with the accused. The Financial Questionnaire will be signed electronically.
C. There are instances in which indigence may have to be determined without the defendant being present (See Rule 3.02A(3)). In the event the defendant is not available a comment will be added to the Financial Questionnaire comments section as to why and the signature block will have, “See Comments” entered.
D. The county approved software will determine whether the accused qualifies for indigence and if so will appoint an attorney from the appointment wheels. The attorney, District Court Coordinators, County Court at Law Coordinator, District Attorney and County Attorney will be notified of the appointment by email as appropriate.
E. 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.
F. 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.
G. 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.
H. A defendant’s status as indigent or not indigent may be 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 in accordance with the County Fee Schedule.
3.06 Payment by Defendant:
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. The Indigent Defense Coordinator will discuss with the defendant their ability to pay. An agreed payment plan will be set up, approved by the Court having jurisdiction, with payments being made to the Coryell County District Clerk's Office in the case of felonies and the County Clerk's Office in the case of misdemeaors.
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.
Minimum Attorney Qualifications
Minimum Attorney Qualifications
4.01 Attorney Qualifications:
Attorneys may apply to be included on the appointment list by completing the “Application and Affidavit for Appointments in the Coryell County Courts”. The Judges hearing criminal cases shall establish an attorney appointment list for the following categories of offenses. Attorneys may apply for and be placed on multiple lists. Attorneys applying for a felony wheel will also be placed on the misdemeanor wheel. An attorney must be approved by the appropriate Court. 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. Third Degree Felony List, qualified for State Jail and Third degree felony representation.
1. Have met the qualifications for placement on the Misdemeanor List;
2. Have practiced in the area of criminal law for at least two years; and
3. Have tried to verdict at least three criminal jury trials as lead or second chair counsel.
C. First Degree Felony List qualified for First and Second degree Felony representation.
1. Have met the qualifications for placement on the Misdemeanor List;
2. Have practiced in the area of criminal law for at least two years; and
3. Have tried to conclusion at least four criminal jury trials as lead or second chair counsel, including at least two felony trials.
D. Capital Felony List:
1. Have met the qualifications for placement on the Misdemeanor List;
2. Have practiced in the area of criminal law for at least five years;
3. Have tried to verdict at least eight criminal jury trials as lead counsel, including at least six trials which were first or second degree felonies or capital felonies and at least two of which were homicide cases; and
4. in capital felony cases where the death penalty is sought the attorney must, in addition, meet the following qualifications:
(a) exhibit proficiency and commitment to providing quality representation in death penalty cases;
(b) have trial experience in the use of and challenges to mental health or forensic expert witnesses and investigating and presenting mitigating evidence at the penalty phase of a death penalty case and;
(c) participated in training and continuing legal education relating to death penalty representation; and,
(d) meet all requirements of and be approved by the committee established by the administrative Judge pursuant to Article 26.052 of The Code of Criminal Procedure.
E. 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;
(c) or 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.
F. 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.
G. The County approved software allows for the attorney to enter CLE hours. It is the attorney's responsibility to make sure CLE hours are up to date. The software automatically puts an attorney on judicial hold when CLE hours are not updated annually as required.
4.02 Additional Qualifications and Requirements of Appointed Counsel (Except 4.01E)
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, in Coryell County, 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 Coryell County 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 address. Attorneys shall also provide to the Court Coordinator of each court and the IDC their home telephone number, cellular telephone number and e-mail address. 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 matter relating to the preparation, trial, and disposition of the case, apellatte 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's practice time that was dedicated to work based on appointments accepted in this county for adult criminal and juvenile delinquency 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 Coryell County Annual Renewal/Practice Time Report to the Coryell County Indigent Defense Coordinator no later than October 15th each year. Failure to update this information by October 15th, will result in the County approved software placing the attorney on hold.
Prompt Appointment of Counsel
Prompt Appointment of Counsel
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 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. If the defendant is in custody in any place other than the Coryell County Jail, an indigence determination and attorney appointment may be accomplished through the mail by corresponding with the defendant and having them complete the Coryell County Affidavit of Indigence. The request to have an attorney may also be accomplished by the county having custody sending a request directly to the Coryell County IDC.
C. If a defendant is being held in the Coryell County Jail on a warrant from any other county, the IDC will interview the defendant using the other county's indigence forms if available, and will notify the appropriate contact person in that county of the defendant's request for a court appointed attorney. It will be the other county's responsibility to appoint counsel for the charge. If the other county has not made an appointment by the 11th day after the defendant has been in Coryell County custody, the IDC will appoint an attorney to the defendant for matters that fall under Chapters 11 and 17 of the CCP. Coryell County may seek reimbursement from the county issuing the warrant for actual costs of the appointed counsel.
D. If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission's website at http://tidc.tamu.edu/public.net/ or from the IDC's Office on the first floor of the Coryell County Courthouse in Gatesville, Texas. The defendant may submit the forms to the IDC at the Coryell County Courthouse, Gatesville, Texas or may come to the office and fill out the forms. The IDC will make a determination on all request for counsel immediately and provide the defendant with attorney contact information or a letter indicating why his request for counsel was denied.
E. 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.
C. The attorney representing the state may not:
1. Initiate or encourage an attempt to obtain from the defendant a waiver of the right to counsel; or
2. 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:
(a) Has been given a reasonable opportunity to retain counsel; or
(b) Waives or has waived the opportunity to retain private counsel.
5.04 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 section 5.03B 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.
5.05 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 and not expected to be available within the time provided by these rules for appointment of counsel, the Judge having jurisdiction will appoint counsel, making an effort to appoint counsel next in order or will provide notice to the IDC to make the appointment as soon as possible.
C. When the arrested person is in custody, but does not request a court appointed attorney or claims to have retained an attorney, the IDC will wait 14 working days from the date of arrest, to see if the retained attorney notifies the court of their representation. If the IDC cannot vereify representation by counsel within 14 working days and the defendant is still in custody, the IDC will contact the defendant to determine if an attorney has been retained or if the defendant qualifies for a court appointed attorney. If the IDC cannot verify that an attorney has been retained the IDC will appoint an attorney from the appointment list.
D. In the event a defendant, who is not in custody, appears at their first court appearance without an attorney, but maintains their intention to retain an attorney, the Court may reset for the purpose of allowing the defendant time to retain an attorney. The defendant will be referred to the IDC to fill out a Financial Questionnaire to determine indigence. In the event a retained attorney does not provide notice of being retained, to the Court Coordinator or the IDC prior to the reset date (second appearance), and the defendant appears without an attorney, the IDC will appoint an attorney from the appointment list, unless instructed otherwise by the Judge hearing the case.
E. If an indigent defendant is arrested in another county based on this county's warrant, counsel will be appointed within 3 working days of the IDC's receipt of the request for counsel if the defendant meets the indigence requirements for this county or has been in custody for 14 working days.
F. If a defendant is arrested in this county based on another county's warrant, counsel must be appointed 11 days after the arrest date for matters under Chapter 11 (Habeas Corpus) or 17 (Bail), Code of Criminal Procedure, if a defendant is still in the local jail and the defendant has no counsel in the arresting county. The arresting county may seek reimbursement from the warrant issuing county for the actual costs paid to appointed counsel.
5.06 Appointment of Counsel: Capital Felony Cases
A. The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless good cause exists to appoint private counsel.
1. If a co-defendant requests appointment of counsel and is determined to be indigent, the Appointing Authority shall appoint counsel pursuant to the standards and procedures stated in this Section.
2. If private counsel is appointed to a co-defendant, rather the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in this Section.
B. The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if:
1. A conflict of interest exists;
2. The Office has insufficient resources to provide adequate representation;
3. The Office is incapable of providing representation in accordance with the rules of professional conduct;
4. Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or
5. The Office shows other good cause for refusing appointment.
C. The Appointing Authority shall immediately contact the attorneys appointed by phone, fax, e-mail or in person and notify the attorneys of the appointment and the last known location of the defendant.
5.07 Judicial Removal from Case:
A. The judge presiding over a criminal case may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, the following:
1. Counsel’s failure to appear at a court hearing;
2. Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
3. Current information about the defendant and the charges against the defendant indicate that another qualified attorney is more appropriate for the defendant under these rules;
4. Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;
5. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
6. The defendant requests an attorney, other than trial counsel, for appeal; or
7. The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.
B. Appointment of Replacement Counsel - Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.
Attorney Selection Process
Attorney Selection Process
Selection and Appointment of Counsel
6.01 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. The appointment list will be maintained in the software by the IDC.
6.02 Public Appointment Lists:
A. 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 and placed in the software system, for the use of the Courts, the IDC, those persons who may be designated by the judge to appoint counsel, and the magistrates of Coryell County as set out in these rules.
B. The Judge of each court may, in the Judge’s discretion, create a list of more than one tier of attorneys subject to appointment.
C. In addition, there is a MHDP Contract Attorney that is added into the software system. This appointment is accomplished by the IDC indicating in the comments section of the Financial Questionnaire that an override is necessary due to the defendant needing a MHDP appointment. The software will indicate that the IDC approved this override.
6.03 Approval of Attorneys by the Judges:
A. In addition to meeting the qualifications described in Rule 4, an attorney may be placed on the appointment lists only if each judge approves the attorney’s placement on each such list.
B. Annually and 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 as well as the attorneys already on the lists. The judge may approve those attorneys:
1. Who meet the qualifications set forth in Rule 4 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 to an indigent defense coordinator who has been designated by the judge and 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 appointing judge, IDC or other person delegated to make the appointment will appoint the lawyer whose name appears next in order in the software system that corresponds to the most serious offense as currently charged and the attorney appointed will represent the defendant on all Coryell County offenses, unless:
1. 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
2. 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.
3. 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.
4. In making the determination whether to appoint 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.
E. Any attorney appearing, at the request of the appointed counsel, shall be qualified for the highest offense level of the defendant in which the attorney is appearing. If either the current appointed case or a new case results in a higher offense level and the attorney initially appointed is no longer qualified, it is the responsibility of the unqualified attorney to inform the indigent defense coordinator so a substitution of qualified counsel may be assigned to the defendant. Any work claimed by the initial attorney after substitution may not be paid.
F. Each attorney appointed under this Rule to represent the defendant in the trial court is appointed to represent the defendant, on all Coryell County offenses, through trial and post-trial proceedings in the trial court. If the defendant receives additional charges prior to disposition of the charge the attorney was initially appoined, the attorney will be appointed to the new charge as well. It is not necessary to re-interview the defendant in order to make the subsequent appointment.
G. At the conclusion of all proceedings in the trial court, including post-trial motions, if an indigent defendant wishes to file an appeal, the appointing judge or person(s) designated by the judges to appoint counsel will appoint the attorney whose name appears next in order on the Appellate List subject to the same rotation requirements as those in these rules.
6.04 Procedures for Removal of Attorney from the Court-Appointed Lists:
A. Grounds for Removal: An attorney may be removed from the list of appointed attorneys, when in the opinion of the appointing Judge, the attorney no longer provides representation in a competent and professional manner. Such action shall be at the discretion of the Judge and may be based upon the following actions by the attorney:
1. Has twice or more failed to contact or interview clients in a timely manner as required by Article 26.04(j)(1), Tex. Code Crim. Proc. or Sec. 9.03C of the Coryell County Indigent Defense Plan;
2. Failure to maintain appropriate contact with the defendant so that the case is adequately investigated and prepared for trial;
3. Has submitted a claim for legal services not performed as specified in Article 26.05(e), Tex. Code Crim. Proc.;
4. Fails to maintain compliance with each of the appointment list guidelines;
5. Has admitted or been found by a court to have provided ineffective assistance of counsel;
6. Has violated a rule of professional responsibility;
7. Has been convicted of or received a deferred adjudication for any offense, other than an offense punishable by fine only;
8. Is under indictment or being formally charged with an offense, other than an offense punishable by a fine only;
9. Has intentionally misrepresented statements on the application for the appointment list;
10. Failure to timely appear before the Court for settings in appointed or retained criminal or civil cases; or
11. Sanctioned 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.
12. 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 removed an attorney not qualified for a category of offenses, while continuing to approve the attorney for other offenses.
13. An attorney may also be removed from the appointment list for any other stated good cause.
B. Removal: If a judge believes that an attorney has violated any of the provisions listed in the paragraph above, the judge may remove the attorney from the appointment list. No action will be taken without first providing the attorney notice in writing, clearly stating the grounds that form the basis for removal.
1. The Judge making the determination to remove an attorney from a wheel will notify the attorney in writing of the grounds for the removal. The notice shall inform the attorney of the time and place the Judge will meet and discuss the removal and give the attorney an opportunity to respond to the removal in writing or in person or both.
After meeting with the attorney the Judge will determine whether the attorney should:
a. Remain on the appointment list as the same level;
b. Be moved to an appointment list for indigent defendants charged with less serious offenses; or
c. Be removed from the appointment lists all together.
2. The attorney may be removed from the appointment list or moved to an appointment list for indigent defendants charged with less serious offenses. Removal from the list may be probated. The Judge may also require the attorney to take other rehabilitative measures upon removal or probated removal. The removal order should state the earliest date an attorney can apply for reappointment. An attorney who was removed under Rule 6.04A(7)or(8) may be immediately reinstated upon providing proof that the charges were dismissed or that the attorney was acquitted, unless other grounds for removal exist against the attorney that would prohibit reinstatement. The decision of the Judge is final and may not be appealed.
6.05 Unavailability of Attorney:
An attorney on the list of qualified attorneys shall keep each court 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 or by email to the Court Coordinator of the court and the IDC. It is the attorney's responsibility to notify the IDC, by email, if they will not be available for appointments for more than three days. The attorney may enter the attorney portal of the software system and make themselves inactive, or reactivate themselves after an absence, but only on the wheels that the judges and IDC have entered an approval for appointment. This may also be accomplished by sending an email to the IDC indicating the dates they are unavailable.
Selection and Appointment of Counsel in Death Penalty Cases
Rule 7: Selection and Appointment of Counsel in Death Penalty Cases
7.01 Appointment of Counsel:
Whenever a capital felony case is filed, the District Judge shall appoint two attorneys at the time the initial appointment is made, unless and until the state gives notice in writing that the state will not seek the death penalty.
7.02 Qualifications of Lead Counsel:
To be assigned as lead counsel in a death penalty case an attorney must:
A. Meet the qualifications set out in rule 4.01.
B. Be on the list of attorneys approved by the local selection committee of the administrative judicial region for appointment as lead counsel in death penalty cases as provided in Article 26.052 of the Code of Criminal Procedure;
7.03 Qualifications of Second Chair Counsel:
To be assigned as second chair counsel in a death penalty case an attorney must:
A. Meet the qualifications set out in rule 4.01.
B. Be on the list of attorneys approved by the local selection committee of the administrative judicial region for appointment as lead or second chair counsel in death penalty cases as provided in Article 26.052 of the Code of Criminal Procedure
Fee and Expense Payment Process
Fee and Expense Payment Process
Attorney Fee Schedule and Compensation of Appointed Attorneys
8.01 Fee Schedule:
A. 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 attached fee schedule adopted as provided under Article 26.05(b) of the Code of Criminal Procedure.
8.02 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 attorney will submit a request for payment through the County approved software to the District Court hearing the case or the County Court at Law. Paper vouchers will not be submitted unless approved by the Judge having jurisdiction prior to submission. If a paper voucher is submitted the attorney must submit a zero voucher through the County approved software in order to close out the case.
B. The approving Judge has 3 options:
1. Approve the voucer and send it for payment.
2. Modify the amount to be paid with comments and forward it for payment.
3. Return the voucher to the attorney with comments.
Whichever action is taken will generate an email to the attorney notifying them of the status of the voucher.
C. If an attorney is not satisfied with the amount of compensation for a request for payment submitted under this schedule, the attorney may appeal the judge’s decision by following the procedure set forth in Tex. Code Crim. Proc. 26.05.
8.03 Rules for the Appeal of a Trial Court’s Disapproval of Requested Court Appointed Attorney’s Fee:
A. Duties of Attorney Seeking Review of Trial Court’s Order
An attorney who chooses to appeal the trial court’s disapproval of the requested attorney’s fees shall file a motion with the Presiding Judge of the Administrative Judicial Region within twenty (20) days of the trial court’s signing of an order disapproving the requested court appointed attorney’s fee.
1. The appealing attorney shall set forth in his motion the following information:
a. The cause number, style and caption of the case;
b. The type and classification of the offense;
c. The date that the attorney was appointed;
d. The date on which the case was disposed;
e. Whether the case was disposed of by dismissal, a plea, a bench trial, or a jury trial;
f. The date and length of each court appearance within the nearest one-tenth of an hour, if the attorney is requesting to be compensated based upon an hourly fee;
g. The date of each office conference, jail conference and any out of court time spent in actual time;
h. A copy of any itemization submitted to the trial court;
i. Any factors that required unusual effort on the attorney’s part to overcome in the representation of the defendant;
j. The date that the fee order the subject of the motion was signed;
k. A detailed statement by the attorney explaining how the trial court’s order disapproving the requested court appointed attorney’s fee deviated from the county’s approved fee schedule adopted under the Texas Fair Defense Act.
2. The appealing attorney shall attach the following documents to the motion:
a. A copy of the trial court’s order disapproving the requested court appointed attorney’s fee, if any; and
b. A copy of the county’s attorney fee schedule adopted pursuant to the Texas Fair
1. The appealing attorney shall file the original of the motion with the clerk of the court in
which the case is pending, and shall file a certified copy of the motion with the Presiding
Judge of the Administrative Judicial Region and with the trial court.
2. If a revised payment order is entered resolving the dispute to the satisfaction of the appealing attorney, the attorney shall file with the Presiding Judge a notice withdrawing the appeal. The motion will then be deemed moot and no further action will be taken by the Presiding Judge of the Administrative Judicial Region.
3. If the trial court’s revised payment order does not fully resolve the issue to the satisfaction of the appealing attorney, the attorney shall within five (5) days of the signing of the trial court’s revised payment order, file with the Presiding Judge of the Administrative Judicial Region and the trial court a notice stating the matter remains subject to contest. The attorney shall attach a copy of the trial court’s revised payment order to said notice.
8.04 Payment of Investigators and Expert Witnesses:
A. Investigators and/or expert witnesses in a non-capital case shall be reimbursed for reasonable and necessary 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.
B. Procedure with Prior Court Approval: Appointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of investigative and expert expenses. The request or 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.
C. The Court may 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 reason 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.
D. Procedure Without Prior Court Approval: Appointed counsel may incur investigative or expert expenses 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. Appointed counsel shall be reimbursed for reasonable and necessary expenses, including experts for investigation and for mental health and other experts. Expenses incurred without prior Court approval shall be reimbursed in the manner provided for capital cases by Article 26.052 (h). Reimbursement of expenses incurred for purposes of investigation or expert testimony may be paid directly to a private investigator licensed under Chapter 1702, Occupation Code, or to an expert witness in the manner designated by appointed counsel and approved by the Court.
9.01 Notice of Determination that the Defendant is Not Indigent:
If the IDC or person making the appointment 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 the Finding of Indigent Ineligibility Form, provide a copy of the form to the person, and cause a the form to be filed with the other orders in the case.
9.02 Notice of Determination that the Defendant is Indigent and Appointment of Counsel:
If the IDC or person making the appointment finds that a person who requests counsel is indigent, notice of the appointment will be sent by email, by the County approved software, to the appointed counsel. The indigent person will be provided a copy of the appointment letter and a copy will be maintained by the IDC Office, to be filed with the orders in the case once an information or indictment has been filed. Appointed counsel will be notified by email but may also be notified by telephone, facsimile, in person or other immediate means of communication.
9.03 Attorney Acceptance of Appointment and Contact with the Defendant:
The appointed attorney is required to provide the court, 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. You may use the form at the end of the Indignet Defense Plan or you may simply forward the appointment email to IDC with an indiation the appointment has been received.
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 not later than ten (10) working days.
Replacement of Appointed Counsel
10.01 Attorney Request:
An attorney 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. An attorney may request IDC appoint another attorney within 3 calendar days, if the attorney has a conflict and does not intend to file a voucher. The IDC may appoint a new attorney for conflicts due to a relationship to the parties involved or due to representation of a co-defendant. All other requests must go through the Court having jurisdiction.
10.02 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:
A. Current information about the defendant and charges indicates that counsel of different qualifications is appropriate for the defendant under these rules; or
B. Replacement of appointed counsel in a death penalty case is required under Article 26.052(e) of the Code of Criminal Procedure.
10.03 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.
10.04 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.
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 (10/31/2019 4:20:22 PM) 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