NACOGDOCHES COUNTY JUVENILE

INDIGENT REPRESENTATION PLAN

 

NACOGDOCHES COUNTY JUVENILE BOARD

The Nacogdoches County Juvenile Board is composed of the judges of the District Courts, Statutory County Courts at Law and the County Judge serving Nacogdoches County. The Criminal Courts Board is composed of the judges of the District Courts and County Courts at Law trying criminal cases in Nacogdoches County. The Criminal Courts Board may periodically impose policies, procedures, and guidelines to implement this plan and guarantee effective representation to all indigent juvenile respondents.

 

CONFLICTS WITH CASE LAW AND STATUTORY LAW

The Nacogdoches County Juvenile Indigent Representation Plan is not meant to supplant or supersede Texas statutes or case law precedent. If there is any conflict between this plan and statutory or case law, then the case law or statutes control.

 

COUNSEL COORDINATOR

A Counsel Coordinator will be designated by the juvenile judges. All questions, issues, and problems must be directed to the Counsel Coordinator for resolution. The Counsel Coordinator will also:

1. Maintain and update the list of qualified and second chair attorneys;

2. Investigate and track attorney qualifications;

3. Manage intake procedures;

4. Track cases and assignments to prevent duplication;

5. Supervise and monitor attorney fee payments;

6. Maintain the rotation schedule of appointed attorneys;

7. Coordinate with the Office of Court Administration;

8. Insure compliance with the policies and standards of the Task Force on Indigent Defense;

9. Perform all duties designated by the Juvenile Judges; and

10. Assist in the County Reporting Plan.

WAIVERS

The Juvenile Judges retain the right to waive any portion of this plan in exceptionally justified cases or when determined necessary for the fair and impartial administration of justice. 

 

 

A.    A child taken into custody must either be brought to a juvenile processing office without unnecessary delay where they may not be detained for longer than six hours pursuant to §52.025, Family Code, or another disposition authorized by §52.02, Family Code, including referral to the office designated by the juvenile board as intake for the juvenile court.  The intake officer shall process the child according the requirement of §53.01, Family Code, and shall also inform the child and the child’s parents of the right to appointed counsel if they are indigent and provide a form for the purpose of determining eligibility for appointment of counsel. If the child is not released by intake, then a Detention Hearing shall be held not later than the second working day after the child is taken into custody unless the child is detained on a Friday, Saturday or listed holiday in which case the detention hearing shall be held on the first working day after the child is taken into custody.  [Sec. 54.01(a)]

B.     Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct. [Sec.54.01(b)]

C.     The detention hearing may be conducted without the presence of the child’s parent(s) or other responsible adult(s), however, in these cases the court must immediately appoint counsel or a guardian ad litem to represent the child.

D.    The court shall provide the attorney for the child access to all written matter to be considered by the Court in making the detention decision.

A.    Definitions, as used in this rule:

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

                              ii.            “Net household income” in the case of a child is the income of the child’s parents or other person determined responsible for the support of the child. 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 person determined responsible for the support of the child has no income or lesser income.

                            iii.            “Non-exempt assets and property” means cash on hand, stocks and bonds, and accounts at financial institutions.

                            iv.             “Household” means all individuals who are actually dependent on the child’s parent(s) or person(s) deemed responsible for the support of the child, for financial support.

                              v.            “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 [Art. 26.04(l & m) CCP]

                              i.            A child is considered indigent if the child’s parent(s) or other person(s) determined responsible for the support of the child meets any one of the following three criteria AND meets the asset test set out in subsection ii below:

1.      The net household income of the child’s parent(s) or other person(s) determined responsible for the support of the child does not exceed $1,000.00/month; or

2.      The child’s parent(s) or other person(s) determined responsible for the support of the child 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; or

3.      The difference between the monthly net household income and reasonable necessary expenses of the child’s parent(s) or other person(s) determined responsible for the support of the child is less than $250.00.  Reasonably necessary expenses should include but are not limited to: rent or mortgage, food/groceries, car payment, car insurance, health insurance, medical bills, and utilities (water, electric, gas, phone).

                            ii.            In addition to meeting one of the criteria under section i above, a child is considered indigent only if the value of non-exempt assets and property owned by the person determined responsible for the support of the child does not exceed the greatest of the following:

a.      $2,500;

b.      The estimated cost of obtaining competent private representation for the offense with which the child is charged

                            iii.            The child who does not meet any of the standards above shall nevertheless be considered indigent if the child’s parent(s) or other person(s) responsible for the child is unable to retain private counsel without substantial hardship. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:

1.      the nature of the 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 child, the child’s parent(s)/person(s) responsible, and other dependents of the child’s parent(s)/person(s) responsible; 

5.      child’s parent(s’) income or the income of other person(s) determined responsible for the support of the child;

6.      source of income;

7.      assets and property owned by the child, child’s parent(s), or other person(s) determined responsible for support of the child;

8.      outstanding obligations;

9.      necessary expenses; and

10.  the number and ages of any siblings of the child.

C.     Indigence Proceedings:

i.   The appointing authority can require the child and the child’s parent(s) or other person(s) responsible for the child to respond to questions about the child’s household financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided. [Sec.51.102(b)(1)] See also [Art. 26.04 (l-r) CCP]

                              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 child is (or is not) indigent; or

2.      Impeaching direct testimony of the child or the child’s parent(s)/person(s) responsible regarding the child’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.

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

1.      A child’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court. The child’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 child’s parent(s)/person(s) responsible and the child’s financial circumstances; or

b.      Additional information regarding the child’s parent(s)/person(s) responsible and the child’s financial circumstances that shows that they do not meet any of the standards for indigence contained in these rules.

2.      If a child 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 child’s parent(s) or other person(s) responsible for the child 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 child’s parent(s) or other person(s) responsible for the child to pay during the pendency of the charges or, if found to have engaged in delinquent conduct or CINS, as court costs the amount that it finds the child’s parent(s) or other person(s) responsible for the child is able to pay.

A.    The Juvenile Board of Nacogdoches County shall establish attorney appointment lists for the following categories of offenses. [Sec. 51.102(a)(b)(2) Tex. Fam. Code]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:

                                i.            General Requirements:

1.      All attorneys on the appointment list must ensure all information on their application is correct;

2.      An attorney must be a licensed practicing attorney and a member in good standing of the State Bar of Texas;

3.      An attorney shall complete a minimum of 6 hours of CLE in the area of juvenile law and procedure each year. All attorneys on the appointment list must file a certificate with the court administration office each year attesting to completion of the required CLE or submit documentation showing that the attorney is certified as a specialist in juvenile law. Continuing legal education activity completed with-in a one year period immediately preceding an attorney’s initial reporting period may be used to meet the educational requirements for the initial year.  Continuing legal education activity completed during any reporting period in excess of the minimum of 6 hours for such period may be applied to the following period’s requirement.  The carryover provision applies to one year only; [1TAC Sec. 174.1-174.4]

4.      Must be knowledgeable in juvenile law and be aware of collateral consequences of a juvenile adjudication and disposition (including, but not limited to, issues involving TJJD commitment criteria, use of juvenile adjudications in adult proceedings, license suspension, sex offender registration, school removals and expulsions, sealing of records, driver's license suspension, etc) ;

5.      May not have been the recipient of any public disciplinary action by the State Bar of Texas or any other attorney licensing authority of any state or the United States. Nor may the attorney have been found ineffective by an appellate court;

6.      An attorney must maintain an office capable of receiving email, fax, and telephone calls;

7.      An attorney must have the ability to produce typed motions and orders;

8.      An attorney shall notify the Juvenile Board 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.

9.  Must be of sound mind and good moral character.

10. Must not be a registered sex offender.

11. Must never have been convicted of or placed on deferred adjudication for any theft, felony, or crime of moral turpitude since becoming a licensed attorney by any state. 

12.   Beginning in 2014, Article 26.04(j) of the Code of Criminal Procedure will require all attorneys who accept appointments in adult criminal and juvenile delinquency cases to submit an annual statement that describes the percentage of their practice time that is dedicated to work on those appointed cases.  Attorneys must submit this statement to Nacogdoches County and Nacogdoches County will forward the information contained in the attorney practice-time statements to the Texas Indigent Defense Commission.  The Commission will add this information to other indigent defense information that is made available to the public via the Commission website.

       In addition to this attorney reporting requirement, Nacogdoches County will be required to report the number of appointments made to every attorney who accepts appointments in the county.

       Every year, an attorney is required to submit a practice-time statement to Nacogdoches County if the attorney accepted an appointment in an adult criminal or juvenile delinquency case during a fiscal year period that begins on October 1 and ends on September 30.  The statement is due no later than October 15 immediately following the close of each fiscal year.

      The statement submitted to Nacogdoches County must describe (1) the percentage of an attorney’s total practice time (time spent in legal practice in all jurisdictions) that was dedicated to work on trial and appeal appointments in adult criminal cases in Nacogdoches County’s district and county courts during the fiscal year beginning on the preceding October 1; and (2) the percentage of an attorney’s total practice time that was dedicated to work on trial and appeal appointments in juvenile delinquency cases (cases alleging delinquent conduct or conduct indicating a need for supervision) in Nacogdoches County’s district and county courts during the fiscal year beginning on the preceding October 1.

      The percentages reported in the practice-time statement submitted to Nacogdoches County should not include time dedicated to work on appointments to cases (such as CPS cases and guardianship cases) that are no adult criminal or juvenile delinquency cases, and should not include time dedicated to federal criminal appointments.

      The attorney may submit the practice-time statement via the Commission’s electronic attorney reporting portal, on the attached Commission reporting form, or on any other physical or electronic form specified by Nacogdoches County that captures all of the information requested on the Commission form.  Nacogdoches County may require attorneys who accept appointments in that county to use a specific method to submit their practice-time statements.  Attorneys are required to use the form attached hereto entitled, “Texas Indigent Defense Commission Attorney Reporting Form”.

      Penalties for failing to submit a required practice-time statement by the October 15 due date may be prescribed by the judges trying criminal cases in Nacogdoches County.  Penalties may include an attorney’s removal from the list of attorneys eligible to receive future court appointments

                              ii.            CINS Charges or Delinquent Conduct where Commitment to TJJD Is Not an Authorized Disposition:

1.      Meet the General Requirements;

2.      Must have a minimum one year of work experience in juvenile law;

3.   A minimum of 20% of practice is in juvenile and/or criminal matters;

                            iii.            Delinquent Conduct where Commitment to TJJD Without a Determinate Sentence Is an Authorized Disposition:

1.      Meet General Requirements;

2.      Have a minimum two years of work experience in juvenile law;

3.  A minimum of 20% of practice is in juvenile and/or criminal matters. 

                            iv.            Determinate Sentence Proceedings have been Initiated; or Proceedings for Discretionary Transfer to Criminal Court Have Been Initiated:

1.      Meet General Requirements;

2.      Have a minimum two years of work experience in juvenile law and two years of work experience in criminal law matters;

 

B.     Approval for Appointment Lists - An attorney must be approved by a majority of the Juvenile Judges for each appointment list for which the attorney applies.

C.     Removal from Appointment List - The Juvenile 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. Before removal, the attorney must receive notice and have the opportunity to be heard by the judgeswho put the attorney on the list.

D.    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 from the appointment list for any other reason and who wishes to be reinstated must apply through the original application process. 

E.     Duties of Appointed Counsel - Appointed Counsel shall:

             i.      Have the ability to receive (by fax, computer, or telephone) the receipt of appointment;

                              ii.            Make every reasonable effort to:

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

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

                            iii.            Represent the child until:

1.      The case is terminated;

2.      The family retains an attorney;

3.      The attorney is relieved of his duties by the court or replaced by other counsel.  (per Sect. 51.101, Tex. Fam. Code)

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

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

                            vi.            Be prepared to negotiate with the prosecutor for the most favorable solution 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 keep the child informed of the status of the case; and

                              x.            Advise the child 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.

                            xi.            Perform the attorney’s duty owed to the child in accordance with these procedures, the requirements of the Code of Criminal Procedure and the Family Code, 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.

 A.    Appointment of Counsel for Children in Detention

                                            i.      Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct. (per Sect. 54.01b)

                        ii.    Counsel must be appointed to represent juveniles prior to their initial detention hearing unless it is not feasible due to exigent circumstances.

                                         iii.       If there is no parent or other responsible adult present, the court shall appoint counsel or a guardian ad litem for the child, subject to the requirements of Subsection (b-1). (per Sect. 54.01d)

                                        iv.      If the juvenile is detained, the child has an immediate right to counsel. If counsel has not already been appointed, the court must either appoint counsel or direct the juvenile’s parent or other responsible adult to retain an attorney promptly. The court may enforce an order to retain counsel by appointing an attorney to represent the child and requiring that the child’s parent or other responsible adult reimburse the court for attorneys’ fees. (per Sect. 51.10 c, d & e)

                      v.      Upon appointment, the court administrator shall notify the appointed attorney by fax, e-mail, or personal contact of the appointment and the scheduled hearing time and date.

                                        vi.      The appointed attorney shall make every reasonable effort to contact a child in detention by the end of the first working day after receiving the notice of appointment or to inform the court that the appointment cannot be accepted.  Contacting the child in detention may be by personal visit (including contact during a detention hearing), by phone, or by video teleconference. Contacting the court may be by fax, email, phone or personal visit. A court-appointed attorney shall contact the child, in one of the ways mentioned above, no less than once every ten working days while the child remains in detention.

                                      vii.      An attorney appointed for a detention hearing shall continue to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court. Release of the child from detention does not terminate the attorney’s representation. (per Sect. 51.101 a & b)

                                    viii.      Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.

B.     Appointment of Counsel for Children not Detained at Intake

                                            i.      If the child is released from detention and if a petition to adjudicate or a motion to modify is filed, the juvenile court will use the financial forms gathered at intake to make a determination of indigence. If no financial information is available, the juvenile court shall promptly summon the child’s parent/guardian/custodian to the court so that financial information may be gathered for a determination of indigence. (per Sect. 51.101 c)

                                          ii.      If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:

a.       The date a petition for adjudication or discretionary transfer hearing has been served on the child; or

b.      A motion to modify disposition seeking commitment to TJJD or placing in secure correctional facility has been filed. (per Sect. 51.101 c, d & e)

                                        iii.      If the family does not qualify for appointed counsel or if the parent or guardian is not available, and the family fails to provide an attorney, the juvenile court may appoint an attorney in any case in which it deems representation necessary to protect the interests of the child. (per Sect. 51.10 d, e, f & g)

                                        iv.      The prosecuting attorney/court clerk shall notify the juvenile court upon the filing of and return of service of a motion to modify or the return of service of a petition for adjudication or discretionary transfer.

A.    The appointing authority will identify which of the appointment lists, discussed in the attorney qualifications section, is most appropriate based on the accusations against the child and will appoint the attorney whose name is first 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 child requesting counsel does not understand English, in which case the judge will appoint the lawyer whose name appears next in order and speaks the clients’ language, if one is available;

                              ii.            The child 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;

                            iii.            An initial detention hearing is scheduled and the first attorney on the list is unavailable; or

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

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 case involving a child 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 child and the charges against the child indicate that another qualified attorney is more appropriate for the child under these rules;

4.      The appointed counsel shows good cause for being removed, such as illness, workload, scheduling difficulties, or the inability to communicate or work with the child and his/her parents ;

5.      The child requests an attorney, other than trial counsel, for appeal; or

6.      The child shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the child.

                              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.

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 the Juvenile Judges. (per Art. 26.05 b) 

B.     Payment Process - No payment of attorney’s fees will be made other than in accordance with the rules set forth below. (per Art. 26.05 c)

                                i.            An appointed attorney shall fill out and submit a fee voucher to the court for 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. (per Art. 26.05c)

2.      An attorney whose request for payment is disapproved or is not otherwise acted on by the 60^th 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. (per Art. 26.05 c)

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. (per Art. 26.05 d & 26.052 h)

                              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:

1.      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. (per Art. 26.05 d)

 

Nacogdoches Juvenile Board Affidavit of Indigence.doc (11/24/2009 2:34:04 PM) view
Nacogdoches Juvenile Board Attorney Application for Appointment.doc (11/24/2009 2:34:55 PM) view
Nacogdoches Juvenile Board Attorney Fee Schedule.doc (11/1/2023 12:08:41 PM) view
Nacogdoches Juvenile Board Attorney Fee Voucher.doc (11/24/2009 2:37:15 PM) view
Nacogdoches Juvenile Board Waiver of Counsel.doc (12/1/2009 8:41:00 AM) view