Webb District Court and County Court Plan
INDIGENT DEFENSE PLAN FOR THE DISTRICT COURT AND STATUTORY COUNTY COURTS AT LAW OF WEBB COUNTY, TEXAS
REVISIONS EFFECTIVE DATE OCOTBER 20, 2021
WHEREAS, The Webb County Board of Judges seeks to ensure that indigent defendants continue to receive well-qualified and knowledgeable representation by their appointed counsel; and
WHEREAS, the 77th Texas Legislature passed the Texas Fair Defense Act effecting procedures and guidelines for the appointment of counsel for indigent defendants by amending the Texas Code of Criminal Procedure, section 6, article 26.04 to become effective January 1, 2004.
NOW BE IT RESOLVED that the Judges of the Webb County Board of Judges by formal action in compliance with and as mandated in the Texas Fair Defense Act hereby;
(1) Adopt standards for determining indigence,
(2) Establish procedures to compile a public appointment list of qualified attorneys to provide representation to indigent defendants,
(3) Establish procedures to compile graduated a list of qualified attorneys,
(4) Adopt objective qualifications necessary for attorneys to be included on the attorney appontment list and,
(5) Establish appointment procedures that shall ensure appointments are reasonably and impartially allocated among qualified attorneys pursuant to the Texas Fair Defense Act.
ACCORDINGLY, the Webb County Board of Judges hereby adopts the following revised plan for appointing counsel for indigent defendants and juveniles in the Courts of Webb County, Texas.
The Webb County Board of Judges further Orders this plan be incorporated into the local rules of the Judicial District courts of Webb County District Courts and the Webb County Courts at Law.
As used in these procedures, the following terms and phrases will have the following meanings:
1. “Judges” or “Board of Judges” shall mean all the presiding judges of the District Courts and County Courts at Law in Webb County.
2. The pronoun "he" shall refer to indiviuals of both genders.
The rules governs practice in all justice of the peace, county, and district courts in Webb County.
RESPONSIBILITIES OF ARRESTING OFFICER AND DETAINING AGENCY AND PROMPT APPEARANCE BEFORE A MAGISTRATE
A. Unless a person is arrested pursuant to an arrest warrant, bench warrant, capias or other order of a magistrate or judge, the arresting officer must complete and file a complaint and probable cause affidavit (which may be on one form) accusing the person of a crime at the time the person is booked into the Webb County Jail. No person shall be booked into the Webb County Jail, unless the above condition are satisfied. The complaint/probable cause affidavit shall contain sufficient information about the arrest to satisfy a finding of pabable cause for the arrest by a magistrate or judge.
B. The detaining authority must present the defendant before the magistrate within 48 hours of arrest for a felony, or 24 hours for a misdemeanor arrest and/or release the defendant in accordence with the Webb County Bond Scheduled with an assurance that the defendant appears at the next business day before a magistrate.
C. The magistrate shall deliver admonishments, inform defendants of their rights to counsel, and make a finding of probable cause.
D. If needed, an interpreter shall assist during the hearing.
E. If the defendant asks that a lawyer be appointed, Pre-Trial Servcies sraff shall assist the defendant in filling out the indigence information required on Defendant’s Financial Affidavit and request for appointed counsel.
F. The magistrate has authority to appoint counsel.
G. If the arrested person is taken before a magistrate of a county other than the county that issued the warrant, the magistrate shall, if the person is indigent andis entitled to and requests appointed counsel, without unnecessary delay but nor later than 24 hours after the person requests the appointment of counsel, transmit, or cause to be transmitted, the appropriate request forms to a court or the courts' designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county issueing the warrant.
H. If an indigent defendant is arrested in another county based on Webb County's warrant, counsel will be appointed within (1) one working day of Webb County's receipt of the request for counsel.
I. If a defendant is arrest in Webb County on another county's warrant, counsel will be appointed for the defendant if. on the 11th day after the arrest, the defendant is still in Webb County's custody.
J. If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Pre-Trial Services Department. Department staff are available seven days per week to porvide reasonable assistance in completing these forms. The department will interview persons requesting counsel.
Indigence Determination Standards
A. A person is “indigent” and thus qualifies for appointed counsel in this county if the income of the person and the person’s spouse totals less than 125% of the federal poverty level for the family, or the person’s dependents currently receiving foodstamps, public housing, Temporary Assistance for Needy Families (TANF), OR Medicaid, unless the person has net liquid assets worth over $2,500, excluding the value of one vehicle, pursuant to current Texas TANF guidelines. Indigence determinations may be basedupon the attached Exhibit G, as submitted by the accused person, or any other evidence admitted by the appointing Judge.
B. Procedures and Financial Standards for Determining Indigence Status
1. At the magistrate's hearing each accused shall be provided an opportunity to request court appointed counsel, if indigent. Each requesting defendant shall complete a Sworn Affidavit of Indigency form. Pre-Trial servcies staff shall ensure that defedants are able to complete the necessary forms for requesting appointment of counsel.
The magistrate shall then review the information and follow the procedures for determining whether defendant is indigent, as follows:
2. Financial Standards for Determining Indigence
Webb County will apply the most recent United States Poverty Guidelines Chart to determine indigence.
The financial standards set forth below shall be used to determine whether a defendant is indigent and shall be applied equally to each defendant in the county.
(a) A defendant is considered indigent if:
(1) the defendant’s net household income does not exceed 125% of the Poverty Guidelines as established and revised annually by the United States Department of Health and Human Services and published in the Federal Register;and
(2) the value of the non-exempt assets and property owned by the defendant:
(i) does not exceed $2,500.00;
(ii) does not exceed $5,000.00 in the case of a defendant whose household includes a person who is age 60 or over, disabled, or institutionalized; or
(iii) does not exceed double the estimated cost of obtaining competent private legal representation on the offense(s) with which the defendant is charged.
(b) A defendant is considered indigent if, at the time of requesting appointed counsel, the defendant or the defendant’s dependents have been determined to be eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.
(c) A defendant is considered indigent if the defendant:
(1) is currently serving a sentence in a correctional institution, is currently held in custody, is currently residing in a public mental health facility, or is the subject of a proceeding in which admission or commitment to such a mental health facility is sought; and
(2) has no non-exempt assets or property in excess of the amounts specified in paragraph two
(d) A defendant who does not meet any of the financial standards above shall nevertheless be determined indigent if the defendant is otherwise unable to retain private counsel without substantial hardship to the defendant or the defendant’s dependents, taking into account the nature of the criminal charge(s), the anticipated complexity of the defense, the estimated cost of obtaining competent private legal representation for the matter and the amount needed for the support of the defendant and the defendant’s dependents.
3. Factors Not to be Considered:
(a) A defendant’s posting of bail or ability to post bail may not be considered in determining whether the defendant is indigent or partially indigent. Even when a defendant has posted bail, the defendant’s financial circumstances are measured by the financial standards stated in this rule.
(b) The resources available to friends or relatives of the defendant may not be considered in determining whether the defendant is indigent. Only the defendant’s financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
4. Procedures for Determining Indigence
(a) As soon as possible following arrest, and in any event not later than the Article15.17 hearing, the Magistrate shall provide each arrested person who wants to request appointment of counsel with a form approved by the judges on which the arrested person will provide under oath the necessary information concerning the person’s financial resources and will indicate that the person requests appointment of counsel. Pre-Trial Services will collect financial information from arrested persons..
(b) The magistrate is designated with authority to appoint counsel..
(c) The appointing judge or person(s) designated by the judges to appoint counsel will determine whether the person meets the financial standards for indigence in paragraph 2. The determination will be recorded on the form requesting appointment of counsel and the form will be filed with the other orders in the case.
(d) The arrested person may be required by the magistrate, the Appointing Judge, or the judge presiding over the case to respond to examination regarding the person’s financial resources.
(e) A written or oral statement elicited under this article or evidence derived from the statement may not be used for any purpose, except to determine the defendant’s indigence, or to impeach the direct testimony of the defendant regarding the defendant’s indigence.
(f) A defendant determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the defendant’s financial circumstances occurs.
(g) A defendant’s status as indigent or not indigent 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 attorney shall be compensated by the county in accordance with these Rules for time reasonably expended on the case.
5. 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 this Plan may order the defendant to pay the county that portion of the costs of legal services.
Minimum Attorney Qualifications
C. APPOINTMENT LISTS
1. The Appointing Judge shall maintain indigent defense appointment lists in this county:.
(A) Lists to be used to select counsel for people other than those who are charged with misdemeanors, state jail felonies, felonies of the 3rd, 2nd, and 1st degree;
(B) A Murder List to be used to select counsel for murder cases; and
(C) A Capital Death Qualified list to be used to select counsel in death penalty cases (The 4th Region Capital Murder Death Qualified list of attorneys).
2. All lists shall include the name of the Webb County Public Defender such that the Public Defender shall receive no more than 75% of all felony and 75 % of all misdemeanor appointments. The appointments for juvenile cases shall continue to be made from the list unless there are additional public defenders hired to represent juveniles.
(a) The Lists shall include all licensed attorneys residing in Webb County, Texas who have applied for and are qualified for appointment to felony and misdemeanor cases if the attorney has completed a minimum of 6 hours continuing legal education pertaining to criminal law during each calendar year; or currently certified in criminal law by the Texas Board of Legal Specialization. Continuing legal education may include activities accredited under Section 4, Article XII, State Bar Rules, self-study, teaching at an accredited continuing legal education activity, attendance at a law school class or legal research-based writing.
(b) An attorney who is qualified under the General List may be included on the Murder List or the Capital Murder List only after a majority of the judges who hear such cases approve adding the attorney’s name to the lists after review of Webb County Application/Affidavit Criminal Felony, Misdemeanor or Juvenile Courts Attorney (attached as Exhibit D).
(c) Every year, an attorney is required to submit a practice-time statement in which the attorney accepted an appointment in an adult criminal or juvenile delinquency case during the fiscal budget year that begins on October 1 and ends on September 30, beginning fiscal budget year 2013-2014. The statement is due no later than October 15, and must be submitted by the attorney through the on-line system to the Texas Indigent Defense Commission. Payment for legal services will be authorized by Webb County until the attorney complies with this requirement. The statement must describe the percentage of an attorney's total practice time that is dedicated to work on trial and appeal appointments in adult and juvenile delinquency cases. The juvenile delinquency cases do not include CPS and guardianship cases.
(1) For the murder list:
i. The attorney has at least four years of experience in criminal litigation.
ii. the attorney has Ttried four criminal cases to a jury verdict as lead counsel.
iii. Has attended at least 10 hours MCLE in criminal law per year for three years prior to application, and annually thereafter;
iv. Has been appointed by the presiding judge of the Court to such a case in the past; or
v. The presiding judge of the Court finds that the attorney is qualified to undertake such representation.
(2) For the capital list:
i. The aootrney must meet all the requirements set out in in Tex. Code Crim. P. Art. 26.052; and
ii. Meet the standards for qualification adopted by the Fourth Administrative Judicial Region Capital Murder Case Committee.
iii. An emergency appointment may be made when no attorney is available who meets the continuing education or board specialization requirement by the time an attorney must be appointed in the case. The appointing judge or designee making the appointment shall be given priority to attorneys with experience in criminal cases.
Prompt Appointment of Counsel
REQUESTS FOR APPOINTED COUNSEL
A. All reasonable efforts will be made to communicate the following information to each person who is accused of a crime at a post-arrest hearing under Tex. Code Crim. P. art. 15.17, using a language that the arrested person understands:
1. “You have the right to a lawyer’s help in responding to the accusation against you; “
2. “The county will pay a court-appointed lawyer to help you if you can’t afford one;”
3. “You can request an appointed lawyer rights now using the Magistrate's certification attached as Exhibits B and called the Probable Cause Rights, Bail and Attorney Request Form which I will give to another judge who decides if you qualify, and then appoint a lawyer who will contact you within a few days;”
4. “If you need help filling out the form, I can get help for you;”
5. “Do you want to request an appointed lawyer?”
6. A person appearing in court without counsel will be advised of the right to counsel and procedures for obtaining counsel.
B. The Magistrate shall note the response on said Magistrate’s Certificate. Magistrates will either make an electronic or written record of having communicated each item in Rule 6.10.01 above to each arrested person at each
Article 15.17 hearing and maintain this record for at least 120 days. Either an electronic or written record such as Exhibit B, the Probable Cause, Rights, Bail and Attorney Request Form completed by the Magistrate can be the record of said request.
C. If a magistrate has reason to believe that a person is not mentally competent to decide whether to request counsel, the magistrate will enter a request for counsel on that person’s behalf.
D. Magistrates shall transmit any request for counsel, that they receive, to the appointing Judge specified in Rule 6.11below, or to the judge’s designee, or appoint the next counsel on the list as instructed by the Webb County Pre-Trial Services Department.
E. If an indigent defendant is arrested in another county based on Webb county's warrant, counsel will be appointed within 1 working day of Webb county's receipt of the request for counsel.
F. If a defendant is arrrested in Webb County based in another county's warrant, counsel will be appointed for the defendant if, on the 11th day after the defendant is still in Webb county's custody.
G. If a defandant wishes to request counsel prior tothe initial appearance, the forms required to request counsel may be obtained at the Webb County Pre-Trial Services Department or by the magistrates assistant. The defendant may submit these forms to the Webb County Pre-Trial Services Department or the magistrate assisstant. The court will rule on all requests for counsel submitted in this manner.
H. Persons out of custody: Counsel must be appointed at the defendant's first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.
I. All unrepresented persons will be told of the right to counsel and the procedures for requesting counsel.
A. The Board of Judges shall designate either a judge or the Jail Magistrate or an individual hired by the County to perform non-judicial duties required by the Fair Defense Act for all people accused of criminal offense who request appointment of counsel. The duties of the appointing Judge are to:
1. Follow Rule 6.12 to make an initial determination of whether a person requesting counsel is indigent.
2. Follow Rule 6.01 to select and appoint counsel to represent each indigent defendant; or Local Rule 5 for juveniles.
3. Follow Rule 6.14 to cause all interested parties to have notice of appointment decisions.
B. Counsel shall be appointed as soon as possible, but not later than the end of the first working day after the date on which the appointing judge or person(s) designated by the judges to appoint counsel receives the defendant's request for counsel. "Working day" means Monday through Friday, except for official holidays approved by commissioners’ court.
1. The Appointing Judge may assign any of the non-judicial duties stated in these Rules to a county employee who is hired to address administrative matters associated with indigent defense.
2. The Board of Judges shall assign Pre-Trial Services staff as needed to comply with the Fair Defense Act and they shall review all persons in the jail to insure that all person are timely appointed counsel as per these rules and Texas law.
Attorney Selection Process
SELECTION AND APPOINTMENT OF COUNSEL
A. NEW APPOINTMENT
1. The Appointing Judge will identify which of the appointment lists (capital, felony 1, 2, 3 and SJF, misdemeanor and juvenile) specified in Rule 6.04 below best correspond to the known information about the accusations against each indigent person who requests counsel.
2. The Webb County Public Defender’s attorneys will also be classified as to which felony and misdemeanor appointments they are qualified to receive based on education and experience.
3. The Webb County Public Defender’s office will receive 75% of all of the felony and 75% of the misdemeanor appointments. The Board of Judges may from time to time adjust the percentage of cases to be assigned to the Webb County Public Defenders’ Office due to staffing availabilities. The rest of the appointments may be made from the applicable appointment list. The Appointing Judge will appoint a lawyer from the applicable list whose name is among the next five names in order so identified unless:
(1)The defendant requesting counsel does not understand English, in which case the judge will appoint the next lawyer who both appears next in order on the list and speaks the clients’ language, if one is available;
(2)The defendant has an attorney already appointed on a prior pending matter, the same attorney will be appointed to the new matter, unless the attorney is not on the list for the type of case involved.
B. CHANGE OF ATTORNEY
Where a trial court is required to change counsel for good cause shown on the record;
1. The judge exercises discretionary authority to appoint one of the attorneys whose name is among the next five names in order on the list; or
2. In unusual circumstances, the appointing Judge upon a written finding of good cause may appoint any qualified willing attorney regardless of whether the attorneys name is on the list.
3. Each time a lawyer is appointed out of order under the preceding paragraph, the lawyer who is appointed out of order shall not be appointed to a new case until all other eligible lawyers on that wheel have received an equal number of appointments, except the Public Defender, so long as the Public Defender does not receive more than 75% of all felony and 75 % of the misdemeanor cases.
C. TERM OF APPOINTMENT
1. Each attorney appointed under this rule, including attorney's electing voluntary removal from the court appointment list, is to represent the person until final disposition of the csse, including habeas corpus hearings or until removed/replaced by court order.
2. If any attorney is appointed under this rule, and that attorney is not qualified for the new case, the judge shall appoint either a second attorney who is qualified or appoint proper qualified counsel on the new case. This applies to the Webb County Public Defender’s staff as well.
3. If an attorney is retained or appointed to substitute for another court appointed attorney, said newly retained/appointed attorney should ensure that the court appointed attorney is notified of same and that a motion to substitute is timely filed with the court.
D. LIST OF ATTORNEYS
1. The director of Pre-Trial Services shall maintain lists of qualified attorneys by alphabetical order, to be used by the appointing court or designee for 25% of the appointments at the felony and misdemeanor level, and where a conflict or multiple defendants require appointment of additional counsel. Upon a person being found indigent, the administrator shall refer to Rule 6.06 hereinafter. The attorney, who is selected, except for the Public Defender, shall be removed from the wheel list until all other attorneys on the list have been appointed a defendant. An attorney remains on the list as next attorney until assigned a case.
2. Should appointed counsel withdraw due to conflict of interest or any other reason except that the Defendant has obtained counsel, the appointing Judge or designee shall inform the Trial Court of the next five names for the Court to select. The Court may choose any one of the five attorneys on the list as set out in Rule 6.04 above.
* APPOINTMENT OF COUNSEL FOR DEATH PENALTY CASES*:
In all capital murder cases in which the death penalty is available, the Regional Public Defenders Office for Capital Cases shall be appointed to represent qualified defendants, unless good cause exists to appoint a private counsel.
1. The Appointing Authority shall appoint counsel, and co-counsel for an indigent co-defendant pursurant to the standards and procedures stated in this section and in accordance with the rules as adopted by the Fourth (4th) Judicial Administrative District of Texas.
Fee and Expense Payment Process
Each court shall pay appointed non-Public Defender attorneys reasonable fees in accordance with a uniform schedule of fees as adopted by the majority of the judges. The uniform schedule of fees shall take into consideration reasonable and necessary overhead costs, the availability of qualified attorneys, time and labor expended complexity of the case, and the experience and ability of counsel. An attorney working under the Public Defender shall be paid by salary set by the Commissioner’s court. See Exhibit E
APPOINTED ATTORNEY COMPENSATION
A. All payments shall be paid after judicial approval, in accordance with the attached fee schedule and guidelines which were adopted by formal action of The Board of Court Judges, with copies sent to the Commissioner’s Court of Webb County. (See Exhibit G)
B. This fee schedule takes into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates.
C. A new voucher form and in-court and out-of-court itemization forms will be provided for appointed counsel to itemize the types of services performed. (See Attachment F) The appointed counsel must submit this voucher to the judge presiding over the case for which the appointed attorney seeks compensation for the judge to approve the payment.
D. If the judge disapproves the requested amount of payment, 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.
E. If the trial court diverts from the fee schedule and an amount exceeds the amount listed in the fee schedule, the Local Administrative Judge (in felony cases) or two County Court at Law Judges (in misdemeanor cases) or two of the juvenile judges must also approve the excess payments. If approved, the orders will be submitted to Commissioner’s Court for excess payments. See section 11.
F. An attorney whose request for payment is disapproved may appeal the disapproval by filing a motion with the presiding judge of the administrative judicial region, as provided under Article 26.05(c) of the Code of Criminal Procedure. This motion must be filed within twenty (20) days from the date the attorney receives notice of the disapproval of payment.
G. On the filing of a motion, the presiding judge of the administrative judicial region shall review the disapproval of payment, and determine the appropriate amount of payment. In reviewing the disapproval the presiding judge of the administrative judicial region may conduct a hearing. Webb County shall pay to the appointed counsel the amount that is approved by the presiding judge of the administrative judicial region and that is in accordance with the adopted fee schedule.
H. Webb County will reimburse appointed attorneys for investigation and expert witness expense(s) up to $100.00 on behalf of an indigent defendant without prior approval of the Court. On presentation of a claim for reimbursement, the Court shall order reimbursement of counsel for the expense(s), if the expense(s) is reasonably necessary and reasonably incurred. Unreasonable or unnecessary expense(s) will not be approved as provided under Articles 26.05(d) and 26.052 (f) through (h) of the Code of Criminal Procedure, and that is in accordance with the adopted fee schedule.
1. The attorney must attach to the voucher an itemized statement of each expense listing the date, the kind and the amount of the expense and must supply supporting documents for any expense over $40.00;
2. Regarding computer assisted legal research, the attorney must provide a statement of the issues researched, and estimate of the number of hours of attorney time required if the research has been done manually and a copy of the bill.
I. Payment of a fee in excess of the case maximum stated in the fee schedule as described in subparagraph E above may be made in the following kinds of cases:
(A) Extended cases: A case in which more time is reasonably required for total processing than the average case.
(B) Complex case: A case in which the legal or factual issues are unusual; thus, requiring expenditure of more time, skill, and effort than would be required in the average case.
(C) In no event shall the hourly in court and out of court rates specified above be exceeded.
(D) An attorney may obtain excess payments by certifying to the trial court that: (1) the case was extended, complex, or both and (2) excess payment is necessary to provide fair compensation.
(E) In order to approve excess payments, the trial court must make the following findings:
(1) The case was extended, complex, or excess payment is necessary to provide fair compensation. On this issue, the following factors will be considered:
(a) Responsibilities of the attorney measured by the magnitude and importance of the case.
(b) Manner in which the attorney performed his/her duties.
(c) The attorney’s knowledge, skill, efficiency, and professionalism.
(d) Judgment required of and used by the attorney.
(e) Nature of the attorney’s practice and injury to it because of this case.
(f) Extraordinary pressure of time or other factors.
(g) Any other relevant factors.
J. Payment of a fee in a case presided over by a visiting judge also requires the approval of the trial court judge. The administrative judge may also approve payment in the event that the trial court judge is unavailable.
K. Vouchers for payment are due within 90 days from final disposition or completion of appellete proceedings if case is appealed,
L. Voucher can be located on-line at www.webbcountytx.gov. For further information, please call the Webb Pre-Trial Services Department.
M. Failure to submit voucher for payment within 90 days from final disposition or completion of appellate proceedings if case is appealed, will be deemed to be a donation of the attorney's time and talent and will be pro bono.
N. Vouchers requesting payment for work performed on pre-adjudicated cases disposing of a case as a result of a plea agreement must provide a statement from the prosecution asserting that the case was resolved prior to grand jury presentment due to the defense attorney's efforts.
Webb District and County Court Affidavit of Indigence.doc (11/24/2009 9:04:24 PM) view
Webb District and County Court Attorney Application for Appointment.pdf (10/7/2013 9:25:13 AM) view
Webb District and County Court Attorney Fee Schedule.pdf (10/30/2015 8:53:58 AM) view
Webb District and County Court Attorney Fee Voucher.doc (11/24/2009 9:11:56 PM) view
Webb District and County Court Magistrates Warning Form.doc (11/24/2009 9:03:28 PM) view