Johnson District Court and County Court Plan
Preamble
10/15/2019


JOHNSON COUNTY PLAN AND STANDING RULES AND ORDERS FOR

PROCEDURES FOR TIMELY AND FAIR APPOINTMENT OF COUNSEL

FOR INDIGENT ACCUSED PERSONS IN FELONY AND MISDEMEANOR CASES

 IN JOHNSON COUNTY, TEXAS

 

 Effective Date – October 1, 2019

 

     Be it remembered that on this date the below signed County Court at Law Judges and District Court Judges for

 Johnson County, Texas hereby adopt, order, establish and order published these countywide procedures, rules,

 and orders for the timely and fair appointment of counsel for indigent accused persons in felony and misdemeanor

cases in Johnson County, Texas. This plan is intended to provide and ensure that indigent defendants receive

adequate legal assistance from qualified attorneys. It is further the intent of this plan to provide for appointed attorney 

management in a neutral manner and to wisely expend public funds. Nothing in this plan is intended or shall be

construed to obligate Johnson County by contract or to bestow any right of employment.

 

 

Prompt Magistration
10/18/2017
 
I.  Conduct Prompt and Accurate Magistration Proceedings

A.    Arresting Officer Responsibilities

                                i.            The arresting officer, or the person having custody of the arrestee, shall ensure that every arrestee shall be brought before a magistrate without unnecessary delay, but not later than 48 hours after the person is arrested. 

                              ii.            Unless arrested pursuant to an arrest warrant, bench warrant, capias, or other order of a magistrate or judge, necessary forms establishing probable cause must be completed and filed at the time an arrestee is booked into jail for any felony or misdemeanor punishable by incarceration.

                            iii.            Release of defendants arrested without warrant

1.      A person arrested for a misdemeanor without a warrant and who is detained in jail must be released not later than the 24th hour after arrest, upon posting bond in an amount not to exceed $1,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense. 

2.      A person arrested for a felony without a warrant and who is detained in jail must be released not later than the 48th hour after arrest, upon posting bond in an amount not to exceed $5,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense. 

3.      If requested by the state, a magistrate may postpone the release of the defendant for not more than 72 hours after the defendant's arrest if a probable cause determination has not been made, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

B.     Magistrate Duties

                                i.            At the Magistrate’s hearing, the magistrate should determine if accused can speak and understand English, or if the defendant is deaf.

                              ii.            After making such determination, the magistrate shall, in an appropriate manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31, do the following:

1.      Advise the accused of the accusation against him/her and any affidavit filed therewith;

2.      Admonish the accused of:

a.       The right to retain counsel;

b.      The right to remain silent;

c.       The right to have an attorney present during any interview with peace officers or attorneys representing the state;

d.      The right to terminate an interview at any time;

e.       The right not to make a statement and that any statement made by the accused may be used against him/her; and

f.       The right to an examining trial.

3.      Inform the accused of the right to appointed counsel if the person cannot afford counsel and the procedures for requesting appointment of counsel.

4.      Inquire as to whether accused is requesting that counsel be appointed.

5.      Provide accused persons requesting appointed counsel with necessary forms for requesting appointment of counsel and ensure that reasonable assistance in completing required forms is provided to the accused at the time of the magistrate’s hearing.

6.      If the magistrate has reason to believe the accused is not mentally competent, the magistrate shall enter a request for counsel on behalf of the accused. Such a request will alert the appointing authority that counsel competent to represent mentally ill persons should be appointed.

 

                            iii.            In cases where the individual was arrested without an arrest warrant, bench warrant, capias, or other order of magistrate or judge, the magistrate shall determine if there is probable cause to believe the person committed the offense.

1.      If probable cause has not been determined by a magistrate:

a.       A person arrested for a misdemeanor must be released upon posting bond, in an amount not to exceed $1,000, not later than 24 hours after the person's arrest.

b.      A person arrested for a felony must be released upon posting bond, in an amount not to exceed $5,000, not later than 48 hours after the person’s arrest.

c.       If requested by the state, the magistrate may postpone the release of the defendant for not more than 72 hours after the defendant's arrest, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

                            iv.            The magistrate shall set the amount of bail and any conditions of bond for the accused, if bail is allowed by law and has not been set by the court or magistrate issuing a warrant.

                              v.            The magistrate shall record the following:

1.      The date and time the accused was arrested and the date and time when he/she was brought before the magistrate.

2.      Whether the magistrate informed the accused of the right to request appointment of counsel and asked the accused whether he/she wants to request counsel.

3.      Whether the accused requested appointment of counsel

                            vi.          If the magistrate is not authorized to appoint counsel and if the accused requests appointment of counsel, the magistrate shall transmit or cause to be transmitted the magistrate form and any other forms requesting appointment of counsel to Cindy Miller, c_miller@413thdistrictcourttex.us, the Indigent Defense Coordinator for felony cases and to the designated Indigent Defense Coordinator of the County Court at Law receiving misdemeanor cases for that particular six (6) months period. The forms requesting appointment of counsel shall be transmitted without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel.

                          vii.            If the magistrate is authorized to appoint counsel, the magistrate shall make a determination of indigence and appoint counsel if the defendant is indigent within three working days.

                        viii.            If a request for counsel was made at magistration, the appointing authority shall forward the magistrate form and any other forms requesting appointment of counsel to the appropriate clerk to be put into the case file.

                            ix.            If a request for counsel was not made at magistration, the magistrate will forward the magistrate form to the clerk to be put into the case file.

                  x.       For persons arrested on out-of county warrants, the magistrate will ask the defendant if he/she would like to request appointed counsel. The magistrate will record the response, and if counsel is requested, the magistate will provide the arrestee with the appropriate forms for requesting counsel. The magistrate will ensure assistance in completing the forms at the same time. The forms will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made. Regarding the appointment of counsel, persons arrested in other counties on local warrants must be appointed counsel in the county that issued the warrant within 1 working day of receipt of the request in counties with a population of 250,000 or more and within 3 working days of receipt of the request in counties under 250,000. Persons arrested on out-of-county warrants must be appointed counsel in the county in the county of arrest if the person has not been transferred or released to the custody of the county issuing the warrant before the 11th day after the date of arrest.

              

Indigence Determination Standards
10/19/2017
 
II.  Determination of Indigence for Adults-Primary

A.    Definitions, as used in this rule:

                                i.            “Indigent” means a person who is not financially able to employ counsel.

                              ii.            “Net household income” means all income of the accused and spousal income actually 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.

                            iii.            “Household” means all individuals who are actually dependent on the accused for financial support.

                            iv.            “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.

B.     Eligibility for Appointment

                                i.            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.

ii.              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.

iii.            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.

iv.    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.

C.     Indigence Proceedings:

                                i.            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.

                              ii.            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.

                            iii.            A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.

                            iv.            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.

1.      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:

a.       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

b.      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.

2.      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.  

                              v.            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.

Minimum Attorney Qualifications
10/23/2019
 
III.  Minimum Attorney Qualifications for Adults

    The Judges hearing criminal cases shall establish attorney appointment lists for the following categories of offenses. Attorneys may apply for

  and be placed on multiple lists. To be eligible for an appointment list, an attorney must meet the following minimum requirements:

       A.    General Qualifications - mandatory

 

                            1.     To qualify for inclusion on the public appointment list, the attorney shall:

                                    a.      apply to be included on the list;

                                    b.      meet the qualifications specified by the judges;

                                    c.      meet the applicable qualifications specified by the Texas Indigent Defense

                                             commission and

                                   d.       be approved by a majority of the judges who establish the appointment list.         

                           

    2.      Each attorney must be a member in good standing of the State Bar of Texas.

 

                            3.     Each attorney must be domiciled in Johnson County, Texas, 

                                    Somervell County, Texas, or any County contiguous to Johnson or Somervell counties,  and

                                    maintain his or her principal office in Johnson County, Texas, Somervell County, Texas,

                                    or within the city limits of the city of Burleson, Texas for at least 12 months prior to

                                    submission of application. Local office must have a physical mailing address for all Johnson County

                                    mail from Courts. (A post office box will not satisfy this requirement.)

                           

                            

                            3.5   Each attorney shall submit by October 15th each year a statement that describes the

                                    percentage of the attorney's practice time that was dedicated to work based on

                                    appointments accepted in this county for adult criminal cases and juvenile

                                    delinquency cases for the prior 12 months that begins on October 1 and ends on

                                    September 30. The report must be submitted through the form prescribed by the

                                    Texas Indigent Commission to the court administration office in the county. 

 

   

                            4.     Each attorney must maintain an office with a telephone, which is answered by a

                                    receptionist or answering service from 8:00 a.m. to 12:00 pm. and from 1:00

                                    p.m. to 5:00 p.m. Monday through Friday (except for Johnson County holidays

                                    as set out in the official Johnson County calendar approved by the Johnson

                                    County Commissioners Court) and which receptionist or answering service

                                    can promptly locate the attorney and notify said attorney of appointment or

                                    hearing setting.  Any change in this notification number must be given in writing

                                    to each County Court at Law Judge and District Court Judge for Johnson County,

                                    Texas prior to the change.

 

                            5.     Each attorney must have a functioning fax machine available 24 hours a day,

                                 or the ability to receive emails 24 hours per day.

 

                            6.     Each attorney shall have on file with the Courts’ designated agent a completed,

                                    sworn “Application for Public Appointment List” approved by the County Court at

                                    Law Judges and the District Court Judges for Johnson County, Texas. 

                           

                            7.     Each attorney shall promptly notify, in writing, the designated agent of any changes

                                    to the information contained in the application for Court appointments.

 

                            8.     Each attorney shall promptly notify, in writing, the designated agent of any matter

                                    that would disqualify the attorney by law, regulation, rule or under these

                                    guidelines from receiving appointments to represent indigent defendants.

 

                            9.     Each attorney shall annually file with the designated agent a copy of his/her State

                                    Bar of Texas Continuing Legal Education annual reporting form and a

                                    certification that he/she is in compliance with these general and specific

                                    qualifications.

 

                            10.    Each attorney shall meet any additional requirements that may be later imposed by the

                                    County Court at Law Judges and the District Court Judges for Johnson County, Texas.       

                                   

                            11.    Court appointed counsel shall make every reasonable effort to contact the

                                    defendant not later than the end of the first working day after appointment and to interview th

                                  defendant as soon as practicable. 

 

                            12.    Court appointed counsel shall comply with all laws, rules, procedures, and

                                    ethical provisions for providing reasonable assistance of counsel to their client.

 

                            13.    Court appointed counsel shall maintain a high standard of ethical conduct and

                                    always be completely candid with the trial court.

 

                            14.    Court appointed counsel shall timely inform the 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.

 

                            15.    For the purposes of computing the number of jury trials, an attorney may include hung juries in 

                                     criminal cases, but must  exclude agreed competency hearings.

                              

 

                            16.    Comply with Minimum Continuing Legal Education Requirements in Attachment L.  No exemptions shall be granted from the Minimum Continuing Legal Education Requirements.

 

       B.   Specific Minimum Qualifications For Appointment

 

                            1.     Misdemeanors

 

                                    a.      An attorney must have been licensed to practice law in the State of            

                                             Texas for six months.

 

                                    b.      An attorney must have participated as trial counsel in one complete

                                             criminal jury trial or two trials before the court for an offense of the grade of

                                             Class B misdemeanor or higher.                                    

                                                                                   

                                    c.      Complete a minimum of 6 hours continuing legal education pertaining to criminal

                                             law during each 12 month reporting period with the first reporting period beginning

on January 1, 2004 and then on the first day of each reporting period thereafter, or is currently Certified in Criminal Law by the Texas Board of Legal Specialization.     

 

                            2.     State Jail Felonies, Motions to Revoke and Extraditions

 

                                    a.      An attorney must have been licensed to practice law in the State of Texas

                                             for 1 year.

 

                                    b.      Complete a minimum of 6 hours continuing legal education pertaining to criminal

                                             law during each 12 month reporting period with the first reporting period beginning

on January 1, 2004 and then on the first day of each reporting period thereafter,

or is currently Certified in Criminal Law by the Texas Board of Legal Specialization.      

 

                                    c.      An attorney must have tried 2 criminal (non-class C) jury trials, or

                                             is currently Certified in Criminal Law by the Texas Board of Legal Specialization.

 

                            3.     Second and Third Degree Felonies and Motions To Adjudicate

 

                                    a.      An attorney must have been licensed to practice law in the State of Texas

                                             for 2 years.

 

                                    b.      Complete a minimum of 6 hours continuing legal education pertaining to criminal

                                             law during each 12 month reporting period with the first reporting period beginning

on January 1, 2004 and then on the first day of each reporting period thereafter,

or is currently Certified in Criminal Law by the Texas Board of Legal Specialization.  

  

                                    c.      An attorney must have tried 3 criminal (non-class C) jury trials, at least 2 of

                                             which are felony jury trials, OR is currently Certified in Criminal Law by the

                                             Texas Board of Legal Specialization.

 

                            4.     First Degree Felonies and Capital Murders Where Death Penalty Is Waived

 

                                    a.      An attorney must have been licensed to practice law in the State of Texas

                                             for 3 years.

 

                                    b.      Complete a minimum of 10 hours continuing legal education pertaining to criminal

                                             law during each 12 month reporting period with the first reporting period beginning

on January 1, 2004 and then on the first day of each reporting period thereafter,

or is currently Certified in Criminal Law by the Texas Board of Legal Specialization. 

 

                                    c.      An attorney must have tried to verdict 4 criminal (non-class C) trials, at least

                                             3 of which are felony jury trials, within the last 12 years:  OR is currently

                                             Certified in Criminal Law by the Texas Board of Legal Specialization. 

                   

                           5.    Capital Case Qualification Requirements:

        a.      Lead trial counsel must be on the list of attorneys approved by the local selection committee of this administrative judicial 

                 region for appointment as lead counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal

                 Procedure.

       b.           Second chair counsel must be on the list of attorneys approved by the local selection committee of this administrative judicial

                region for appointment as lead trial counsel or second chair counsel in death penalty cases, as provided in Article 26.052, Texas

                Code of Criminal Procedure.

      c.              Appellate counsel must be on the list of attorneys approved by the local selection committee of this administrative judicial region

               for appointment as appellate counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

 6.    Appeal and Post-Judgment Writs Not Involving Death Penalty

 

                                    a.      An attorney must have been licensed to practice law in the State of Texas for

                                             2  years.

 

                                    b.      Complete a minimum of 10 hours continuing legal education pertaining to criminal

                                             law during each 12 month reporting period with the first reporting period beginning

on January 1, 2004 and then on the first day of each reporting period thereafter, or

is currently Certified in Criminal Law by the Texas Board of Legal Specialization.       

 

                                    c.      An attorney must have completed 2 criminal appeals, or an attorney qualified

                                             for trial appointment for any level can receive appellate appointments at the same

                                             level.


                 C.     Approval for Appointment Lists

                                i.            Misdemeanor List – An attorney must be approved by a majority of the Statutory County Court Judges hearing criminal cases.

                              ii.            State Jail and Third Degree Felony, First and Second Degree Felony List, Capital Case List, and Appeal List  - An attorney must be approved for each list by a majority of the District Court Judges hearing criminal cases.

    D.      Removal from Appointment List - The judges will monitor attorney performance on a continuing basis to assure the competency of attorneys on the list.

           An attorney may be removed or suspended, as appropriate, from one or more appointment list by request of a Judge serving Johnson County. An attorney so removed may re-apply after 30 days from said

         removal and may request to present the re-application before the Judges in person.

    E.     Reinstatement to Appointment Lists

                                i.            An attorney who was removed from the appointment list for non-completion of the required CLE hours may be immediately reinstated upon providing proof that the attorney has completed the required hours so long as the attorney otherwise meets the other qualifications under this Plan.

                              ii.            An attorney who has been removed or, requested to be removed, from the appointment list for any other reason and who wishes to be reinstated shall apply through the original application process, no earlier than one year from the date of removal.

                 iii.      An attorney who was removed from the appointment list for not submitting the attorney's annual practice time report may be immediately reinstated upon submission of the report so long as the attorney otherwise meets the other qualifications under this plan. 

   F.     Duties of Appointed Counsel - Appointed Counsel shall:

                                i.            Notify the court within 72 hours of the receipt of appointment;

                              ii.            Make every reasonable effort to:

1.      Contact the defendant by the end of the first working day after the date on which the attorney is appointed; and

2.      Interview the defendant as soon as practicable after the attorney is appointed;

                            iii.            Represent the defendant until:

1.      Charges are dismissed;

2.      The defendant is acquitted;

3.       Appeals are exhausted; or

4.      The attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause entered on the record.

                            iv.            Investigate, either by self or through an investigator, the facts of the case and be prepared to present any factual defense(s) that may be reasonably and arguably available to the defendant;

                              v.            Brief the law of the case and be prepared to present any legal defense(s) that may be reasonably and arguably available to the defendant;

                            vi.            Be prepared to negotiate with the prosecutor for the most favorable resolution of the case as can be achieved through a plea agreement;

                          vii.            Be prepared to try the case to conclusion either with or without a jury;

                        viii.            Be prepared to file post-trial motions, give notice of appeal and appeal the case pursuant to the standards and requirements of the Texas Rules of Appellate Procedure;

                            ix.            Maintain reasonable communication and contact with the client at all times and keep the client informed of the status of the case; and

                              x.            Advise the client on all matters involving the case and such collateral matters as may reasonably be required to aid the client is making appropriate decisions about the case; and

                            xi.            Perform the attorney’s duty owed to the defendant in accordance with these procedures, the requirements of the Code of Criminal Procedure, and applicable rules of ethics.

                          xii.            Manage attorney’s workload to allow for the provision of quality representation and the execution of the responsibilities listed in these rules in every case.

G.                       Each attorney accepting appointments under this plan acknowledges and understands that this plan is in place solely for the benefit of the indigent defendant and the existence of

                          this plan does not create any property right to the attorney now or in the future. 

H.                      The attorney appointed to represent a defendant is the attorney of record who is personally and solely responsible for representing the defendant in the case.

                          If the attorney is unable to appear at a hearing the court may remove the attorney from the appointment and appoint another attorney to represent the defendant.

I.                       No substitutions or " stand in" allowed without prior Court approval.

J.                       In situations wherein the First or Second degree list has been exhausted due to  coflicts of interest,  high workloads, difficulty of the case or other reasons deemed necessary, a District Judge may appoint an attorney from the list maintained by the Presiding Regional Administrative Judge for the 8th Region to represent an indigent defendant in Johnson County, Texas. Attorneys appointed  from the Regional list shall be paid an amount of not less than $75.00 per hour nor more than $250.00 per hour for work performed under said appointment.


Prompt Appointment of Counsel
9/23/2015
 
IV.  Appoint Counsel Promptly for Adults

A.    Prompt Appointment of Counsel

                                i.            Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel. Working day means Monday through Friday, excluding official state holidays. Counsel must be appointed whether or not a case has been filed in the trial court.

                              ii.            If the defendant is released from custody prior to the appointment of counsel, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.

                iii.        If an indigent defendant is arrested in another county based on this county's warrant, counsel will be appointed within 3 working days of this county's receipt of the request for counsel.

                 iv.        If a defendant is arrested in this county based on another county's warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county's custody.

                  v.         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 htt://tidc.tamu.edu/public.net/ or from Cindy Miller, Indigent Defense Coordinator. The defendant may submit these forms to Cindy Miller, Indigent Defense Coordinator. The court will rule on all requests for counsel submitted in this manner.

                      

                

                            vi.          Appointment Authority

1.      If no case has been filed in the trial court, the appointing authority for misdemeanors is the designated County Court at Law Judge receiving cases for that particular six months period.

2.      If no case has been filed in the trial court, the appointing authority for felonies is the District Judge empaneling the Grand Jury during that six (6) months period of each year.

3.      If the case has been filed in the trial courts, the appointing authority is the presiding County Court at Law Judge of that court for misdemeanor cases, and the District Judge empaneling the Grand Jury during that six (6) period each year for felony cases.

B.     Defendants Appearing Without Counsel - If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement:

                                i.            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.

                              ii.            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.

                            iii.            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.

C.     Waiver of the Right to Counsel

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

                              ii.            A waiver obtained in violation of section IV.B above is presumed invalid.

                            iii.            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 ____, 2___, 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)”

                            iv.            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.

Attorney Selection Process
9/18/2018
 
V.  Attorney Selection Process for Adults (Rotation)

A.    The appointing authority will identify which of the appointment lists, discussed in the Section III (attorney qualifications), is most appropriate based on the accusations against the defendant and may select from the next five among on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order. Good cause may include:

                                

                              i.            The defendant has an attorney already appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter, unless the attorney is not on the list for the type of offense involved in the current case; or

                            ii.            Other good cause exists for varying from the list.

              iii.      Felony appointments may be assigned to attorneys from any county located within the 8th Administrative Judicial Region.

   B.     Once appointed, an attorney’s name will be moved to the bottom of the appointment list. An attorney who is not appointed in the order in which the attorney’s name appears on the list shall remain next in order on the list.

C.     Judicial Removal from Case:

                                i.            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.

                              ii.            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.

Fee and Expense Payment Process
10/15/2019
 
VI.  Fee and Expense Payment Process for Adults

A.    Court appointed counsel shall be compensated for all reasonable and appropriate services rendered in representing the accused. Compensation shall be reasonable for time and effort expended and will be in accordance with a fee schedule adopted and approved by a majority of the judges hearing criminal cases in the county. Judges shall not individually set a fee outside the range of the reasonable fixed rates or minimum and maximum hourly rates as set out in the fee schedule.

B.     Payment Process:  No payment of attorney’s fees will be made other than in accordance with the rules set forth below.

                                i.            Only the appointed attorney may execute and submit a fee voucher to the court specifying services rendered.

                              ii.            The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.

1.      If a judge disapproves a request for compensation, the judge shall make written findings, stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.

2.      An attorney whose request for payment is disapproved or is not otherwise acted on by the 60th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of this administrative judicial region.

C.     Payment of Expenses:

                                i.            Court appointed counsel will be reimbursed for reasonable and necessary expenses incurred, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior approval shall be paid according to the procedures set forth below. Whenever possible prior court approval should be obtained before expenses are incurred.

                              ii.            Procedure With Prior Court Approval:

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

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

b.      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

c.       An itemized list of anticipated expenses for each investigation and/or each expert.

2.      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:

a.       State the reasons for the denial in writing;

b.      Attach the denial to the confidential request; and

c.       Submit the request and denial as a sealed exhibit to the record.

                            iii.            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. Unreasonable or unnecessary expenses will not be approved.

Plan Documents
Johnson District and County Court 2015 poverty guidlines.docx (9/22/2015 11:10:18 AM) view
Johnson District and County Court 2017 poverty guidlines.docx (10/17/2017 1:31:12 PM) view
Johnson District and County Court 2018 poverty guidlines.docx (10/31/2018 8:49:03 AM) view
Johnson District and County Court Accused's Instructions Regarding Court Appointed Attorney.doc (11/25/2009 10:20:40 AM) view
Johnson District and County Court Affidavit for Probable Cause.doc (11/25/2009 10:18:49 AM) view
Johnson District and County Court Affidavit of Indigence.doc (11/25/2009 10:19:56 AM) view
Johnson District and County Court Annual Certification of Attorney.doc (11/25/2009 10:25:18 AM) view
Johnson District and County Court Application for Appointment.doc (10/4/2011 10:39:03 AM) view
Johnson District and County Court application for court appointed attorney.doc (10/10/2011 11:52:38 AM) view
Johnson District and County Court Appointment of Attorney.doc (11/25/2009 10:22:23 AM) view
Johnson District and County Court Attorney Application for Appointment.doc (10/31/2018 8:47:48 AM) view
Johnson District and County Court Attorney Fee Schedule.docx (10/30/2019 3:50:20 PM) view
Johnson District and County Court Attorney Fee Voucher.docx (10/30/2019 3:50:59 PM) view
Johnson District and County Court ATTORNEY REPORTING FORM.docx (10/3/2013 1:41:04 PM) view
Johnson District and County Court Declination of Appointment.doc (10/6/2011 8:06:21 AM) view
Johnson District and County Court Indigency Standards.doc (11/25/2009 10:21:15 AM) view
Johnson District and County Court johnson county indigency standards.doc (10/18/2017 11:16:38 AM) view
Johnson District and County Court Magistrates Warning Form.doc (11/25/2009 10:19:10 AM) view
Johnson District and County Court Minimum Continuing Legal Education Requirements.doc (11/25/2009 10:25:44 AM) view
Johnson District and County Court Recommended Minimum Bail Bond Amounts.pdf (11/25/2009 10:26:14 AM) view
Johnson District and County Court recommended minimum bail bonds.docx (10/18/2017 11:20:48 AM) view
Johnson District and County Court Request for Court Appointed Attorney.doc (11/25/2009 11:44:39 AM) view