Delta, Franklin, Hopkins and Rains Juvenile Board Plan
PLAN AND STANDING RULES AND ORDERS FOR
PROCEDURES FOR TIMELY AND FAIR APPOINTMENT OF COUNSEL
FOR INDIGENT ACCUSED JUVENILES IN THE TEXAS COUNTIES OF
HOPKINS, DELTA, FRANKLIN AND RAINS
Effective Date – January 1, 2001
Be it remembered that on this date the below signed members of the Juvenile Board for the counties of Hopkins, Delta, Franklin and Rains, Texas hereby adopt, order, establish and order published these procedures, rules, and orders for the timely and fair appointment of counsel for indigent accused juveniles in the counties of Hopkins, Delta, Franklin and Rains, Texas. This document is the plan for Hopkins, Delta, Franklin and Rains to conform to the requirements of S.B. 7 passed by the Texas Legislature in the year 2001.
Prompt Detention Hearings
JUVENILE COURT RESPONSIBILITES
The Juvenile Court of the counties of Hopkins, Delta, Franklin and Rains shall conduct an initial detention hearing (or probable cause determination, where appropriate) in accordance with the time periods set forth in the Texas Family Code for any juvenile who is placed into detention at the Juvenile Detention Center. The Juvenile Court will conduct a Pre-Trial hearing in cases where the juvenile is not detained.
At the Initial Detention or Pre-Trial hearing the responsible judge will comply with Senate Bill 7 for:
providing to the juvenile and parent(s)/guardian the juvenile warnings as provided by law;
notification of indigent representation rights;
making of a record of the juvenile warnings (where appropriate) and right to court appointed counsel for indigent accused persons;
inquiry as to whether there is a request for court appointed counsel;
providing the parent(s)/guardian of the juvenile with a Financial Questionnaire and reasonable assistance in completing said form(s); and
appointment of counsel from the approved appointment list program upon a finding of indigency
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.
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.
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.
The court shall provide the attorney for the child access to all written matter to be considered by the Court in making the detention dec
Indigence Determination Standards
PROCEDURES AND FINANCIAL STANDARDS FOR
DETERMINING INDIGENCE STATUS
At the Initial Detention or Pre-Trial hearing, the parent(s), guardian(s) and/or person(s) responsible for each juvenile (hereinafter “requesting person”) shall be provided an opportunity to request court appointed counsel. Each requesting person shall complete and file with the Juvenile Court a sworn Financial Questionnaire, in a form approved by the Juvenile Judge of Hopkins, Delta, Franklin and Rains counties. The Juvenile Court will ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided. If the requesting person does not speak and/or understand the English language or is deaf, the judge shall inform the person in a manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31.
The juvenile judge shall consider the following standards for determining indigence and such other reasonable factors as the court finds bearing on the financial inability of a requesting person to retain counsel:
Requesting person’s income;
Sources of the requesting person’s income;
Assets of the requesting person;
Property owned by the requesting person, or in which the requesting person has an interest;
Outstanding obligations of the requesting person;
Necessary expenses of the requesting person;
The number and age of the requesting person’s legal dependents;
Spousal income available to the parent/guardian; and
Such other reasonable factors as determined by the judge.
In cases where the juvenile judge determines that the requesting person is financially able to hire counsel, the juvenile judge will either order the parent, guardian or responsible person to hire counsel for the juvenile or, where necessary to promote justice, appoint counsel for the juvenile and order that payment be made directly to such counsel or as reimbursement to the County.
Determination of Indigence for Juveniles-Primary
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
ii. “Net household income” 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. “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.
iv. “The cost of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.
B. Eligibility for Appointment
i. A child is presumed indigent if any of the following conditions or factors are present:
1. At the time of requesting appointed counsel, a child is presumed indigent if the child’s parent(s) or other person(s) determined responsible for the support of the child is eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.
2. 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 100% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register;
3. 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
ii. 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.
iii. Factors NOT to be considered in determining indigence:
1. The resources available to friends or relatives of the child, other than the child’s parent(s) or other person(s) deemed responsible for the child, may not be considered in determining whether the child is indigent.
2. Only the child's parent(s) or other person(s) responsible for the child and the child’s financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
C. Indigence Proceedings:
i. The appointing authority can require the 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.
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.
Minimum Attorney Qualifications
LIST OF ELIGIBLE ATTORNEYS FOR SERVICE AS
COURT APPOINTED COUNSEL FOR INDIGENT
ACCUSED PERSONS IN JUVENILE CASES
The Juvenile Judge of Hopkins, Delta, Franklin and Rains counties shall approve a list of eligible attorneys. The Juvenile Judge of the counties of Hopkins, Delta, Franklin and Rains shall make available
to all licensed attorneys residing in the counties of Hopkins, Delta, Franklin and Rains, the approved Application for Juvenile Counsel Appointments upon implementation of this plan.
The list shall consist of the attorneys who have applied for inclusion on such list. Such list shall be graduated for attorneys that are recognized by the Juvenile Court as qualifying for appointment in:
Level 1) Determinate sentence to the Texas Youth Commission or cases in which certification to stand trial as an adult is available
Level 2) Delinquent conduct (non-determinate sentence) cases
Level 3) Child in Need of Supervision (CINS) offenses
Level 4) Appeals
Level 1) License to practice law in the State of Texas and in good standing with the Texas Bar Association
Level 2) Level 1 qualification plus at least one year experience in criminal/juvenile litigation
Level 3) Level 1 qualification plus a least two years experience in criminal litigation or at least one year experience in appellate practice and procedure.
RESPONSIBILITY OF COURT APPOINTED COUNSEL
Court appointed counsel shall make every reasonable effort to contact the juvenile and their parent/guardian not later than the end of the first working day after appointment and
confer with the juvenile as soon as practicable.
Court appointed counsel on the approved list must maintain an office with a phone which is answered by a receptionist or answering service from 8:00 a.m. to 12:00 p.m. and from
1:00 p.m. to 5:00 p.m. Monday through Friday (except for holidays) so that the attorney may be promptly notified of detention hearings when necessary. Court appointed counsel on
the approved list must maintain a FAX number to which a FAX may be received 24 hours a day, seven days a week. These numbers shall be provided to the designated Juvenile
Court for the counties of Hopkins, Delta, Franklin and Rains and shall be the official numbers which will be utilized by the court to inform counsel of appointment or court hearings.
Any change in these notification numbers must be given in writing to the Juvenile Court prior to the change.
Court appointed counsel shall comply with all laws, rules, procedures, and ethical provisions for providing reasonable assistance of counsel to their client.
Court appointed counsel shall maintain a high standard of ethical and professional conduct and shall always be completely candid with the Juvenile Court.
Court appointed counsel shall timely inform their client of matters relating to the preparation, trial, and disposition of the case; appellate and writ rights, deadlines, and procedures for
proper processing, and such other matters as necessary to provide reasonable assistance of counsel.
Court appointed counsel shall represent a juvenile until the juvenile is found to have not engaged in delinquent conduct or conduct indicating a need for supervision; the juvenile has
been adjudicated and disposition has been conducted; or the court, after entering a finding of good cause on the record, relieves the attorney and/or replaces the attorney with other
counsel. In cases that are appealed, counsel shall represent the juvenile until appeals are exhausted.
Court appointed counsel shall meet the following standards as follows:
1. Be a member in good standing with the State Bar of Texas;
2. Professionally perform duties and responsibilities of a licensed attorney for the State of Texas;
3. Complete such Continuing Legal Education programs as required by the Texas Judicial Council and local rules of the counties of Hopkins, Delta, Franklin and Rains for
attorneys representing indigent accused persons, which shall include an annual average of 6 hours of Continuing Legal Education in Handling juvenile or criminal cases;
4. Attend and complete a 6 hour Continuing Legal Education program as approved by the State Bar of Texas within one year of being placed on any Approved Juvenile Counsel
List in the area of Juvenile law.
5. The requirements of paragraphs 3 and 4 above are waived if the attorney maintains a board certification in Juvenile Law and/or Criminal Law with the Texas Board of Legal
specialization or if said attorney attends the annual Texas Juvenile Law Conference or its equivalent and receives at least ten (10) CLE hours for attending the same.
Annual Attorney Reporting Requirements. 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 form prescribed by the Texas Indigent
Defense Commission to the court administration office in the county.
The judge of the designated Juvenile Court may remove an attorney from consideration for appointments if the attorney does not fulfill the duties required by law, rules, local rules, the
Juvenile Court; or provisions for providing reasonable assistance of counsel or complying with the requirements for inclusion on the approved list for counsel for indigent accused
juveniles; or if said Juvenile Judge finds that cause exists for the removal of said attorney from the approved list.
Prompt Appointment of Counsel
The Juvenile Judge, upon a finding of indigence and request for court appointed counsel, shall sign an Order Appointing Counsel and the staff of the Juvenile Judge shall immediately contact the attorney by phone, fax, or in person and notify said attorney of the appointment and the last known location of the juvenile.
Attorney Selection Process
Appointment of counsel under this plan shall be on a rotational basis from the list of approved counsel for the appropriate level of case. Where counsel is appointed at an Initial Detention hearing or in other situations where the presence of counsel is needed immediately, the Juvenile Court may deviate from the rotational list and appoint from approved counsel who are present and available in the courthouse.
Fee and Expense Payment Process
COMPENSATION OF COURT APPOINTED COUNSEL
Court appointed counsel shall receive such reasonable compensation as established by Standing Order of the Juvenile Board for the counties of Hopkins, Delta, Franklin and Rains, Texas.
The fee schedule adopted by formal action of the Juvenile Board for the counties of Hopkins, Delta, Franklin and Rains, Texas shall comply with the Texas Code of Criminal Procedure Article 26.05 and all applicable law.
This schedule of fees concernS compensation of court-appointed counsel for indigent defendants and related expenses made pursuant to Article 26.05, Texas Rules of Criminal Procedure; therefore, it is ORDERED that compensation of court-appointed counsel and related expenses, made pursuant to a motion in the format prescribed by the appointing court, shall be as set out below on a case-by-case basis as determined by the judge. Due to the wide variety of circumstances that may be encountered in cases, total compensation for all pre-trial, trial, post-trial, and appellate court appointed counsel services shall be determined by the judge upon the circumstances and complexity of each case. The fees set out below may be adjusted as reasonably determined by the judge.
JUVENILE CASES Non-trial disposition $ 300.00
Trial: $500.00 per day (in trial)
Up to an additional $500.00 for preparation of the appeal at the rate of $50.00 per hour when approved by the trial judge, for either non-trial disposition or disposition by trial.
Expenses Incurred Without Prior Court Approval:
Expenses incurred without prior approval shall be reimbursed only if incurred expenses are reasonably necessary.
Appointed counsel may incur investigative or expert expenses without prior approval of the court in an amount not to exceed $250.00 in misdemeanor level cases and $500.00 in felony level cases. On presentation of a claim for reimbursement, the court shall order reimbursement to counsel for the expenses, if the incurred expenses are reasonably necessary. Unreasonable or unnecessary expenses will not be approved.
REQUEST FOR PAYMENT OF ATTORNEY'S FEES AND EXPENSES If the trial judge disapproves the requested amount, the judge shall make written findings stating the amount of payment approved and the reasons for approving an amount different from the requested amount. The attorney whose request for payment has been disapproved may, by written motion, file an appeal with the presiding judge of the administrative region.
Each attorney shall prepare an approved claim form as soon as practicable after conclusion of the case for payment of services and reimbursement of expenses. If additional funds are requested over and above the stated flat fee for standard services, a detailed statement the trial preparation services rendered must be submitted to the court for consideration. No payment shall be made until the judge approves payment after submission of attorney fee claim.
ARRESTING OFFICERS RESPONSIBILITIES
An officer must provide a copy of the offense report to the Juvenile Detention Center personnel at the time the juvenile is placed into detention at the Juvenile Detention Center. No juvenile will be accepted into the Juvenile Detention Center without the offense report, except those detained for probation violation, pursuant to a Directive to Apprehend or upon notice of a Texas Youth Commission parole violation.
The arresting officer must make himself/herself available to talk with the Juvenile Prosecutor(s) as to whether or not the officer’s appearance at the Initial Detention hearing will be necessary.
APPOINTMENT OF INVESTIGATORS AND
EXPERTS FOR INDIGENT DEFENSE
Appointment and reimbursement for reasonable and necessary investigation, mental health and other experts shall be as provided by law and only upon written motion and prior approval of the juvenile judge for such appointment and anticipated reimbursement.
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