Bexar County Court Plan
As of November 1, 2007, Bexar County Magistrates appointed by the Criminal District Court Judges will be performing all magistration duties.
A. Arresting Officer Responsibilities:
1. 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.
2. 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.
3. Release of defendants arrested without warrant
a. 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, on a 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. If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.
b. 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, on a bond in an amount not to exceed $10,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense. If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.
c. 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.
d. The time limits set forth in 1. and 2. above do apply to a person arrested without a warrant who is taken to a hospital, clinic, or other medical facility before being taken before a magistrate under Article 15.17.
B. Magistrate Duties:
1. At the Magistrate’s hearing, the magistrate should determine if accused can speak and understand English, or if the defendant is deaf.
2. After making such determination, the magistrate shall, in an appropriate manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31, and Article 15.17, do the following:
a. Advise the accused of the accusation against him/her and any affidavit filed therewith;
b. Admonish the accused of:
i. The right to retain counsel;
ii. The right to remain silent;
iii. The right to have an attorney present during any interview with peace officers or attorneys representing the state;
iv. The right to terminate an interview at any time;
v. The right not to make a statement and that any statement made by the accused may be used against him/her; and
vi. The right to an examining trial.
c. Inform the accused of the right to appointed counsel if the person cannot afford counsel and the procedures for requesting appointment of counsel.
d. Inquire as to whether accused is requesting that counsel be appointed.
e. 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.
f. 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.
3. 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.
a. If probable cause has not been determined by a magistrate:
i. A person arrested for a misdemeanor must be released on bond, in an amount not to exceed $5,000, not later than 24 hours after the person's arrest.
ii. A person arrested for a felony must be released on bond, in an amount not to exceed $10,000, not later than 48 hours after the person’s arrest.
iii. 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.
4. 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.
5. The magistrate shall record the following (See Forms: Magistrate Warnings--Attachment One for English version and Attachment Two for Spanish version):
a. The date and time the accused was arrested and the date and time when he/she was brought before the magistrate.
b. 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.
c. Whether the accused requested appointment of counsel
6. 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 Pretrial Services for an interview to determine the defendant's financial status. The defendant will be required to swear to the accuracy of the the interview form and sign it (See Forms: Financial and Indigent Affidavit-Attachments Four and Five). If the defendant declines an interview he /she will be asked to sign an affidavit to such effect (See Forms: Bexar County Detention Center Accused Declined to Be Interviewed--Attachment Three). If it is determined that the defendant falls below the guideline established by the Criminal Court judges, Pretrial services will query the computer for the selection of an appointed attorney (see Section III, A. (Minimum Attorney Qualifications) describing "Attorney Rotation Wheel").
7. If the magistrate is not authorized to appoint counsel, the magistrate shall without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel, transmit or cause to be transmitted to the court or to the court's designee authorized under Article 26.04, Code of Criminal Procedure, to appoint counsel in the County, the form requesting appointment of counsel.
8. 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.
9. 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.
10. Defendants who did not request an attorney at magistration but request one at arraignment may be sent to the Pretrial Services Satellite Office for interview and attorney appointment. As an alternative, the Judge may make the attorney appointment in court under "interest of justice" criteria. If the appointment is made by the Judge in the interest of Justice, the rationale for the appointment must be placed on the record.
11. For persons arrested on out-of-county warrants, the magistrate must ask the defendant if he/she would like to request appointed counsel. The magistrate will record the response, and if counsel is requested, the magistrate will provide the arrestee with the appropriate forms for requesting counsel. The magistrate will ensure the person is provided reasonable assistance in completing the necessary forms for requesting counsel in the county issuing the warrant. Requests for counsel made by persons arested on out-of-county warrants must be transmitted to the appointing authority of the county issuing the warrant within 24 hours of the request being made.
Indigence Determination Standards
Indigence Determination Standards
A. Definitions, as used in this rule:
1. “Indigent” means a person who is not financially able to employ counsel.
2. The defendant’s “net income” will be used to determine if the individual is indigent based on the income for one person under the Federal Poverty Guidelines. If the defendant’s “net income” is $980.83 or more per month, they will not qualify for a court appointed attorney. If the defendant’s “net income” is less than $980.83 a month, they will qualify for a court appointed attorney. This amount will be adjusted annually pursuant to the Federal Poverty Guidelines.
3. The defendant’s necessary expenses will be subtracted from the defendant’s gross income, including spousal income if applicable. The resulting number will be referred to as the defendant’s “net income”. "Necessary expenses" should include: rent or mortgage; food/groceries; car payment; car insurance; utilities (water, electricity, phone).
B. Eligibility for Appointment
1. An accused is presumed indigent if any of the following conditions or factors are present:
a. 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;
b. 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
c. 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.
2. 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:
a. the nature of the criminal charge(s),
b. anticipated complexity of the defense,
c. the estimated cost of obtaining competent private legal representation for the matter(s) charged;
d. the amount needed for the support of the accused and the accused’s dependents;
e. accused’s income,
f. source of income,
g. assets and property owned,
h. outstanding obligations,
i. necessary expenses,
j. the number and ages of dependents, and
k. spousal income that is available to the accused.
3. Factors NOT to be considered in determining indigence:
a. The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.
b. The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.
4. 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:
1. 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.
2. Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:
a. Determining if accused is (or is not) indigent; or
b. Impeaching direct testimony of accused regarding the accused’s indigence
3. 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.
4. 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. If there is a material change in financial circumstances after a determination of indigeny or nonindigency is made, the defendant, the defendant's counsel, or the attorney representing the state may move for reconsideration of the determination. Tex Code of Crim Proc 26.04(p)
a. 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:
i. 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
ii. 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.
b. 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.
5. 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. Tex Code Crim Proc 26.05 (g)
Minimum Attorney Qualifications
Minimum Attorney Qualifications
A. The Bexar County Criminal Courts plan for the implementation of the appointment portion of the Texas Fair Defense Act involves the use of an attorney data bank on the Criminal Justice Information System (CJIS) mainframe computer, also known as the "Attorney Rotation Wheel." The data bank is comprised of attorneys who apply to take court appointments for new criminal charges as well as Motions to Revoke Probation (MTRs) and are determined to meet certain qualification standards. The computer, using a rotational process, will select the appropriate attorney from the database. In making the selection, the computer will use several different preset filters. Those filters will include, but not be limited to: date of attorney's last appointment, attorney availability, offense level, language requirements, pending cases with previously appointed counsel, etc. Attorneys can apply to take either felony or misdemeanor court appointments or both. Once the application process is complete, the Administrative offices for both the District and County Criminal Courts will enter the attorney information into the computer. An attorney will not be entered into the system for either misdemeanor or felony appointments unless he/she meets the prescribed qualifications and is approved by the Judges.
B. To be eligible for the misdemeanor appointment list or "Attorney Rotation Wheel", an attorney must meet the following minimum qualifications:
1. Misdemeanor Qualification Requirements:
a. All attorneys on the appointment list must ensure all information on their application is correct;
b. An attorney must be a licensed practicing attorney and a member in good standing of the State Bar of Texas;
c. An 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 online form to the Texas Indigent Defense Commission.
d. An attorney shall complete a minimum of six (6) hours of CLE in the area of Criminal law within 30 days from the date the attorney submits their application to be on the appointment list. In addition to those six (6) hours of CLE in Criminal Law, an attorney must provide proof of either a CLE course in Immigration Law or an Immigration component within another CLE course. There is no minimum required number of hours needed for the Immigration Law requirement. Said attorney shall take any Texas State Bar accredited course dedicated to Criminal Law, including, but not limited to, the San Antonio Criminal Defense Lawyer's Association Annual Nuts & Bolts course;
e. In addition to the requirements to receive court appointments set out above, attorneys applying for misdemeanor appointments must maintain a minimum of six (6) hours of CLE in Criminal Law and an additional CLE course or component in Immigration law as set forth above annually. All attorneys on the appointment list must submit proof of these hours on an annual basis to County Court Administration (by January 15th each year). Attorneys need only submit a copy of their State Bar MCLE page to show proof of these hours. We will accept courses within a one year period immediately preceding (calendar year) to satisfy these hours. As an alternative to meeting the CLE requirements, an attorney may be currently certified in Criminal Law by the Texas Board of Legal Specialization;
f. The following provisions are also included in the rules to add flexibility so the attorneys may meet the requirements without causing undue burden:
i. All of the required criminal law hours in this 6 hour requirement may be earned through any method authorized by the State Bar, including self-study; and
ii. Emergency appointments are allowed when no attorney meeting the CLE requirements is available by the time an attorney must be appointed in a case.
g. An attorney must maintain an office capable of receiving email, fax, and telephone calls, with fax and email available 24 hours per day;
h. An attorney shall notify the court administration office promptly, in writing, of any matter that would disqualify the attorney by law, regulation, rule or under these guidelines from receiving appointments to represent indigent defendants.
i. If an attorney is arrested at any time while on the Misdemeanor appointment wheel, the attorney must report the arrest to County Court Administration by the end of the first business day after arrest.
2. Approval for Misdemeanor List or Wheel--An attorney must be approved by a majority of the Statutory County Court Judges hearing criminal cases.
3. It is in the discretion of the County Court at Law Judges hearing criminal law cases to deny an applicant to serve on the Misdemeanor appointment wheel for any good cause.
C. Notification and Formalization for Attorney Rotation Wheel
If an attorney is appointed through the computer (Attorney Rotation Wheel), the attorney will receive notification by both email and fax. That notification will include the name, address/location, phone number of the defendant as well as the SID, Case Number, charge, court and arraignment date if available. Attorney information will automatically be transferred to the "C" page of the appropriate case file on the Criminal Justice Information System. The defendant will receive a print out with the name, address and phone number of the appointed attorney. The County Courts at Law Administration Office will print out a list of defendants and appointed attorneys, each working day. Additionally, the County Courts at Law Administration Office will print out one copy of the Appointment Order for each case. These Orders will be stamped with the signature of the Local Administrative Judge and delivered to the Criminal Central filing for inclusion in the individual case file(s).
D. Removal from Appointment List or Attorney Rotation Wheel-
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 lists by a majority vote of the judges. (as set forth below)
E. Grounds for removal
1. An attorney may be removed from the appointment list or attorney rotation wheel if the attorney:
a. has twice or more failed to contact or interview clients in a timely manner as required by Article 26.04(j)(1), Code of Criminal Procedure;
b..has submitted a claim for legal services not performed as specified in Article 26.05(e), Code of Criminal Procedure;
c. fails to maintain compliance with each of the appointment list guidelines;
d. has been found by a court to have provided ineffective assistance of counsel;
e. has violated a rule of professional responsibility;
f. has been convicted of or received a deferred adjudication for any an offense, other than an offense punishable by fine only;
g. is under indictment or being formally charged with an offense, other than an offense punishable by a fine only;
h. has intentionally misrepresented statements on the application for the appointment list;
i. has failed to submit an annual statement that describes the percentage of their practice time that is dedicated to work on appointed cases,
as set forth in B.1.c. above; or
j. an attorney may be removed from the appointment list for another stated good cause.
2. In certain extraordinary circumstances, such as incarceration or institutionalization, an attorney may be temporarily removed from the Misdemeanor appointment wheel.
3. Procedures for Removal.
a. If a judge believes that an attorney has violated any of the provisions listed above (E.1), the judge may refer an attorney to the County Court judges hearing
criminal matters for removal from the appointment list. The referral must be in writing and shall clearly state the grounds that form the basis of the
referral. No disciplinary action with respect to the attorney being retained or removed from the appointment list may be made without such a referral.
b. Upon receiving an attorney referral, the County Court judges hearing criminal matters or designee shall notify the attorney in writing of the referral and
inform the attorney of the grounds that form the basis of the referral. The notice shall also inform the attorney of the time and place the judges will meet
to discuss the referral and give the attorney an opportunity to respond to the referral in writing or in person or both.
c. After the County Court judges hearing criminal matters meet and give the attorney an opportunity to be heard, the majority of the judges hearing criminal
cases present shall determine whether the attorney should:
i. remain on the appointment list; or
ii. be removed from the appointment list altogether
d. The attorney may be removed from the appointment list by a majority vote of the judges hearing criminal matters present.
e. In addition, the majority of the judges may also vote to require the attorney to take other rehabilitative measures.
f. Removals from any list may be probated. For removal or probated removals, the judges ordering the removal may require the completing of rehabilitative measure as a condition of probation or reapplication.
g. An order of removal should state in the order the earliest date at which the attorney may apply for reinstatement.
h. An attorney who was removed from an appointment list under "Grounds for Removal" (f. or g.) shall 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.
i. The decision of the majority of judges hearing criminal matters is final and may not be appealed.
F. Reinstatement to Appointment List or Attorney Rotation Wheel
1. 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.
2. 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.
3. An attorney who has been removed from the appointment list for any other reason and who wishes to be reinstated must apply through the original application process. G. Duties of Appointed Counsel
Appointed Counsel shall:
1. Notify the court within 72 hours of the receipt of appointment;
2. Make every reasonable effort to:
a. Contact the defendant by the end of the first working day after the date on which the attorney is appointed; and
b. Interview the defendant as soon as practicable after the attorney is appointed;
3. Represent the defendant until:
a. Charges are dismissed;
b. The defendant is acquitted;
c Appeals are exhausted; or
d. 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.
4. 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;
5. 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;
6. Be prepared to negotiate with the prosecutor for the most favorable resolution of the case as can be achieved through a plea agreement;
7. Be prepared to try the case to conclusion either with or without a jury;
8. 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;
9. Maintain reasonable communication and contact with the client at all times and keep the client informed of the status of the case; and
10. 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
11. 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.
12. 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.
Prompt Appointment of Counsel
Prompt Appointment of Counsel
A. Appointment of Counsel
1. Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the first 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.
2. If the defendant is released from custody prior to the appointment of counsel, appointment of counsel is not required until the defendant’s irst court appearance or when adversarial judicial proceedings are initiated, whichever comes first.
3. If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within one working day of this county’s receipt of the request for counsel.
4. 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.
5. 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/ . The defendant may submit these forms to the Bexar County Pre-trial Services or the Court Coordinator in the County Court where the case is pending.. The court will rule on all requests for counsel submitted in this manner.
6. If no case has been filed in the trial court, the appointing authority for misdemeanors is: the Court or Court's designee authorized under Article 26.04, Code of Criminal Procedure, to appoint indigent defendants in the County or Bexar County Pre-trial Services.
B. Defendants Appearing Without Counsel - If a defendant appears without counsel in any adversarial judicial proceeding that may result in punishment by confinement
1. 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 cou
2. 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:
a. Has been given a reasonable opportunity to retain and has failed to retain appointed counsel; or
b. Waived or has waived the opportunity to retain private counsel.
3. The attorney representing the state may not:
a. Initiate or encourage an attempt to obtain from the defendant a waiver of the right to counsel; or
b. Communicate with a defendant who has requested the appointment of counsel, unless the appointing authority has denied the request and subsequent to the denial, the defendant:
i. Has been given a reasonable opportunity to retain counsel; or
ii. Waives or has waived the opportunity to retain private counsel.
C. Waiver of the Right to Counsel
1. A defendant may voluntarily and intelligently waive the right to counsel.
2 A waiver obtained in violation of section B above is presumed invalid
3. 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)”
4. 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
Attorney Selection Process
A. The Judges or Judge's Designee (appointing authority) will use the "attorney rotation wheel" discussed in Section III (Minimum Attorney Qualifications), unless the court makes a finding of good cause on the record for appointing an attorney out of order. Good cause may include:
1. The defendant requesting counsel does not speak and understand the English language, or that the defendant is deaf, then the court or the courts' designee shall make an effort to appoint an attorney who is capable of communicating in a language understood by the defendant.,;
2. The defendant has an attorney already appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter;
3. In the interest of judicial economy and to ensure adequate representation of the defendant's interests, the court may appoint the same attorney that is appointed to any accompanying felony case(s), with the consent of the attorney appointed on the felony case(s). However, once an attorney accepts the misdemeanor case(s), the appointed attorney is obligated to continue with the case(s) until they are disposed of, unless the court makes a finding of good cause for the attorney to be removed from the misdemeanor case(s), or is allowed to withdraw from the misdemeanor case(s); or
4. Other good cause exists for varying from the list or "attorney rotation wheel."
B. Public Defender’s Office – According to CCP 26.04(a), the procedures for appointing counsel for an indigent defendant must provide for the priority appointment of a public defender’s office. At this time, the Chief Public Defender in Bexar County has indicated that the Public Defender's Office will not seek any additional appointments pursuant to CCP 26.04 (effective 9/1/19), other than the ones their office is currently receiving from the appointment wheel.
Pursuant to CCP, Art. 26.04(f), the court is not required to appoint the public defender's office if:
- the court makes a finding of good cause for appointing other counsel;
- the appointment would be contrary to the office's written plan under Article 26.044;
- the office is prohibited from accepting the appointment under Article 26.044(j); or
- a managed assigned counsel program also exists in the county and an attorney will be appointed under that program.
Pursuant to CCP 26.044(j), the Public Defender’s office may not accept an appointment if:
1. A conflict of interest exists that has not been waived by the client;
2. The office has insufficient resources to provide adequate representation for the defendant;
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 not accepting the appointment.
The procedures set forth in Article 26.044(j-1), Code of Criminal Procedure, will be followed in the event the Public Defender's Office identifies a reason for refusing the appointment.
C. Public Defender’s Office for Mental Health Cases - Any defendant charged with a misdemeanor offense who 1) has been deemed to have mental health issues, 2) who is found to be indigent, and 3) who requests a court appointed attorney, may be assigned to the Bexar County Public Defender’s Office. The Pre-trial or booking officer will enter an "M" code on all cases that request a court appointed attorney and who have been identified as having mental health issues,. The "M" Code will appoint the Public Defender's Office to represent those mental health cases for each misdemeanor category of offense. All other cases will be passed on to the "attorney rotation wheel" as set forth in Section III.
D. Public Defender's Office for Appeals - Any defendant charged with a misdemeanor offense who:
1) wishes to appeal their conviction,
2) has been found to be indigent, and
3) who requests a court appointed attorney, may be assigned the Bexar County Public Defender's Office.
Once notice of appeal has been filed by the trial counsel, the trial court may enter an Order Appointing the Public Defender's Office until the termination of the appeal process.
E. Judicial Removal from Case:
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:
a. Counsel’s failure to appear at a court hearing;
b. Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
c. 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;
d. Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;
e. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
f. The defendant requests an attorney, other than trial counsel, for appeal; or
g. The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.
F. Pursuant to 26.04(e), A majority of the judges of the county courts and statutory county courts or the district courts, as appropriate, trying criminal cases in the county may remove an attorney from consideration for appointment if, after a hearing, it is shown that the attorney submitted a claim for legal services not performed by the attorney.
G. 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
Fee and Expense Payment Process
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 County Court at Law judges hearing criminal cases in the county.
B. Payment Process: No payment of attorney’s fees will be made other than in accordance with the rules set forth below.
1. An appointed attorney shall fill out and submit a fee voucher to the court for services rendered, which must be submitted at the time the case is concluded. All vouchers must be in black or blue ink and either printed or typewritten. If the form provided by the County is not used, the format of the voucher must be similar to that used on the County form.
2. The trial judge presiding over the proceedings or a designee shall review the request for compensation and either approve or disapprove of the amount requested.
a. 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.
b. 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. An attorney whose request for payment is disapproved may appeal the disapproval by filing a motion with the presiding judge of this administrative judicial region. In reviewing the disapproval, the presiding judge of the administrative judicial region may conduct a hearing. Not later than the 45th day after the date an application for payment of a fee is submitted under this section, the commissioner's court 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 fee schedule for the County. This decision is final.
C. Payment of Expenses:
1. 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.
2 Procedure With Prior Court Approval:
a. 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:
i. The type of investigation to be conducted or the type of expert to be retained;
ii. 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
iii. An itemized list of anticipated expenses for each investigation and/or each expert.
b. The court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:
i. State the reasons for the denial in writing;
ii. Attach the denial to the confidential request; and
iii. Submit the request and denial as a sealed exhibit to the record.
3. 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.
4. See Attachment on Investigator Policy for County Courts.
Bexar County Court Affidavit of Indigence.pdf (10/21/2015 3:17:56 PM) view
Bexar County Court Attachment Five-Financial and Indigent Affidavit Spanish.pdf (6/28/2010 2:52:36 PM) view
Bexar County Court Attachment Four-Financial and Indigent Affidavit English.pdf (6/28/2010 2:52:18 PM) view
Bexar County Court Attachment One-Magistrate Warning English.pdf (6/28/2010 2:51:54 PM) view
Bexar County Court Attachment Three-Accused Declined to be Interviewed.pdf (6/28/2010 2:51:25 PM) view
Bexar County Court Attachment Two-Magistrate Warning Spanish.pdf (6/28/2010 2:51:01 PM) view
Bexar County Court Attorney Application for Appointment.doc (4/11/2016 1:27:42 PM) view
Bexar County Court Attorney Fee Schedule.pdf (6/24/2020 11:51:20 AM) view
Bexar County Court Attorney Fee Voucher.pdf (6/24/2020 11:51:47 AM) view
Bexar County Court Attorney Visit Certification.pdf (6/24/2020 11:52:22 AM) view
Bexar County Court Bexar County Court Investigator Policy for County Courts.pdf (10/9/2017 2:28:12 PM) view
Bexar County Court Investigator Policy for County Courts.docx (10/26/2015 11:22:37 AM) view
Bexar County Court Mental Health Public Defender.pdf (10/31/2013 3:28:41 PM) view
Bexar County Court Public Defender Plan or Proposal.docx (10/28/2013 4:46:23 PM) view
Bexar County Court Waiver of Counsel.doc (11/6/2009 4:17:40 PM) view