Coke, Concho, Irion, Runnels, Schleicher, Sterling and Tom Green District Court and County Court Plan
Preamble
12/15/2020

 

INDIGENT DEFENSE PLAN

For the District Courts, Statutory County Courts,

and Constitutional County Courts

 

of

 

Coke County,

Concho County,

Irion County,

Runnels County,

Schleicher County,

Sterling County,

 and Tom Green County,

State of Texas

 

 

 

 

 

 

 

Amended October 20, 2020

 

 


Indigent Defense Plan for the District Courts, Statutory County Courts, and

Constitutional County Courts of Coke, Concho, Irion, Runnels, Schleicher,

Sterling and Tom Green Counties, State of Texas

 

Preamble

 

The judges of the courts trying criminal cases in Coke, Concho, Irion, Runnels, Schleicher, Sterling and Tom Green Counties are committed to providing quality legal representation to indigent criminal defendants, ensuring fair and neutral procedures for attorney selection, establishing minimum competency standards for court-appointed attorneys, and being good stewards of public funds.  In administering this Indigent Defense Plan for the District Courts, Statutory County Courts, and Constitutional County Courts of Coke, Concho, Irion, Runnels, Schleicher, Sterling and Tom Green Counties, State of Texas (hereinafter “the Plan”), the judges of the stated courts seek to comply with applicable provisions of the Texas Code of Criminal Procedure and the Texas Code of Judicial Conduct.

 

In compliance with the Article 26.04 of the Texas Code of Criminal Procedure, the judges of the district courts, statutory county courts and constitutional county courts of Coke, Concho, Irion, Runnels, Schleicher, Sterling, and Tom Green Counties adopt the Plan as hereinafter set forth.

Prompt Magistration
12/15/2020

Prompt Magistration

 

I.   ARRESTING OFFICER AND SHERIFF’S RESPONSIBILITIES

 

A.  Unless a person is arrested under an arrest warrant, bench warrant, capias or other order of a Magistrate or Judge, an arresting officer must complete and file an offense report and a probable cause affidavit (which may be on one form), accusing the person of a crime AT THE TIME the person is booked into the jail.  No person shall be booked into the jail unless the above conditions are satisfied.

 

B.  The arresting officer or the person having custody of the person arrested shall, without unnecessary delay, take the arrested person (or have that person taken) before a Magistrate.  “Without unnecessary delay” means within 24 hours after the arrest in a misdemeanor case and within 48 hours after the arrest in a felony case.

 

C.  When taking the person before the Magistrate, the individual responsible for taking the person shall also provide the Magistrate with information necessary for the Magistrate to complete the Magistrate’s duties, including information about the charge and, if required, an affidavit setting forth facts that the Magistrate may consider if the Magistrate is required to determine probable cause.

 

D.  The Sheriff shall advise the Magistrate of all persons who have been brought into his custody in the 24 hours immediately preceding 9:00 a.m. on each day. 

 

E.  The Sheriff shall also determine if anyone in jail is entitled to a bond under Code of Criminal Procedure §17.033 (a) or (b) and, if so, the Sheriff shall immediately notify the Magistrate.  If that individual is entitled to be released on a personal bond, the Sheriff shall also notify the Personal Recognizance Bond section of the Concho Valley Community Supervision and Corrections Department (“CVCSCD”).  The CVCSCD shall comply with all policies adopted by the Judges for issuing Personal Recognizance Bonds and shall process the individual in a timely manner to insure that this statute is complied with.  (See Page 4, Magistrate’s Determination of Probable Cause.)

 

II.  MAGISTRATE’S RESPONSIBILITIES

 

As stated in Code of Criminal Procedure Article 1.051(f-2): “In any adversary judicial proceeding that may result in punishment by confinement, the court may not direct or encourage the defendant to communicate with the attorney representing the state until the court advises the defendant of the right to counsel and the procedure for requesting appointed counsel and the defendant has been given a reasonable opportunity to request appointed counsel.  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 court or the court's designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county has denied the request and, subsequent to the denial, the defendant: (1) has been given a reasonable opportunity to retain and has failed to retain private counsel;  or (2) waives or has waived the opportunity to retain private counsel.”

 

A.  General:  Within 24 hours of a person’s arrest on a misdemeanor charge and within 48 hours of a person’s arrest on a felony charge, a Magistrate must complete certain duties.  The Magistrate must (1) give the person arrested certain admonitions required by law, (2) set a bond, (3) complete certain forms and prepare a file, and (4) in cases where an individual has been arrested without an arrest warrant, capias or other Order of a Magistrate or Judge, determine if there is probable cause to believe the person committed an offense, and if probable cause to arrest is not found,  the Magistrate shall notify the attorney representing the State and if requested by the State the Magistrate shall postpone the release of the individual for not more than 72 hours after the person’s arrest in compliance with the procedure set forth in section 17.033 of the Code of Criminal Procedure.  If the Magistrate detains any person at the State’s request pursuant this procedure, the Magistrate shall notify the Court that is vested with jurisdiction for the offense for which the person is to be charged.  To accomplish these duties in Tom Green County, the Justices of the Peace of Tom Green County shall establish a plan for rotating among themselves the daily responsibility of these duties.  The Justice of the Peace who has these duties for a particular day shall commence to perform these duties by 1:00 p.m. each day.

 

B.  District & County Court at Law Judges:  The District Judges and Tom Green County Court at Law Judges may sit as Magistrates and, if they do so, they shall comply with these procedures.

 

 

C.  Magistrate’s Admonitions

 

1.  Within 24 hours of the arrest of a person on a misdemeanor charge, and within 48 hours of the arrest of a person on a felony charge, the Magistrate shall give the arrested person certain admonitions required by law and shall complete the appropriate forms.  Whenever an arrested person is first brought before a Magistrate, the Magistrate shall record the date and time that the person was first taken into custody and when the person was taken before the Magistrate.

 

2.  The Magistrate shall determine if the defendant can understand English or if the defendant is deaf and, after making that determination, shall inform the defendant of the information in number 3 below in a manner consistent with Code of Criminal Procedure Articles 38.30 and 38.31, as appropriate.

 

3.  The Magistrate shall give the Admonitions required by Code of Criminal Procedure §15.17 and, as the Magistrate gives those admonishments, the Magistrate shall complete the applicable portions of Form 1 [Magistrate’s Admonitions Under CCP §15.17, Probable Cause Order & Order Setting Bond].  Those admonitions include but are not limited to the following:

 

  1. the accusation against the defendant and of any affidavit filed by the arresting officer;

 

  1. the defendant’s right to retain counsel;

 

  1. the defendant’s right to request the appointment of counsel (if he/she cannot afford counsel) and the procedures for requesting appointment of counsel;

 

  1. inquiry as to whether the defendant is requesting court appointed counsel;

 

  1. provide the defendant with an Affidavit of Indigence and reasonable assistance in completing said forms;

 

  1. the defendant’s right to have an attorney present during any interview with peace officers or attorneys representing the State;

 

g.   the defendant’s right to terminate any interview at any time;

 

h.   the defendant’s right to have an examining trial;

 

i.    the defendant’s right to remain silent;

 

j.    the defendant is not required to make a statement and that any statement made by the defendant may be used against him/her;

 

4.  The Magistrate shall give the “Right to Request Appointment of Attorney” admonitions as required by Code of Criminal Procedure §15.17(e), specifically ask whether the person wants to request appointment of counsel, and as the Magistrate gives those admonishments the Magistrate shall complete the applicable portion of Form 1.

 

5.  The Magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the time of this hearing.

 

6.  If a Magistrate has cause to believe that a person is not mentally competent to decide whether to request counsel, the Magistrate will enter a request for counsel on the person’s behalf.  The Magistrate shall record this request for counsel in a way that alerts the person making the appointment that counsel competent to represent mentally ill defendants should be appointed.

 

D.  Setting Bond:  At the time the Magistrate provides the above admonitions, the Magistrate shall also set a bond for the arrested person.  In setting the Bond, the Magistrate shall complete the applicable portion of Form 1.

 

E.  Magistrate’s Determination of Probable Cause: The following procedure shall be used in all cases where a person has been arrested without an arrest warrant, capias or the order of a Magistrate or Judge.

 

1.  Introduction - If a person arrested remains in custody for a specified period of time after the person’s arrest, that person shall be released on a Bond in an amount fixed by law (BAFBL) unless the Magistrate determines that there is probable cause to believe that the person committed the offense and sets a bond for that person.  Therefore, at a certain time, either the defendant must be released upon posting the BAFBL, or the Magistrate must make a finding that there is probable cause to believe that the person committed the offense and must set a bond for that person.

 

2.  Misdemeanor Cases - Within 24 hours of the arrest of a person on a misdemeanor charge without a warrant, if the person has not yet posted a bond and is therefore in custody, either:

 

  1. the Magistrate shall determine that there is probable cause to believe that the person committed the offense and shall set a bond for that person; or

 

  1. the person shall be released upon posting a BAFBL.

 

3.  Felony Cases - Within 48 hours of the arrest of a person on a felony charge without a warrant, if the person has not yet posted a bond and is therefore in custody, either:

 

  1. the Magistrate shall determine that there is probable cause to believe that the person committed the offense and shall set a bond for that person; or

 

  1. the person shall be released upon posting a BAFBL.

 

4.  Probable Cause - To determine probable cause the Magistrate must be satisfied that probable cause does in fact exist.  The Magistrate must consider sufficient facts to make that determination and may consider a sworn affidavit setting forth substantial facts establishing probable cause or such other information that would warrant a Magistrate to issue an arrest warrant.  (See Code of Criminal Procedure §15.03.)  In these cases, the Magistrate shall complete the applicable portion of Form 1

 

5.  Postpone a Release - The attorney representing the State may request the Magistrate to postpone the release of a person by filing an application under Code of Criminal Procedure §17.033(c).  If adequate grounds are shown under that section, the Magistrate may postpone the release of a person for not more than 72 hours.

 

6.  BAFBL: “BAFBL” means a bond in the amount established by Code of Criminal Procedure §17.033(a) and (b).

 

F.  Magistrate’s Record and File

 

1.  Immediately after completing the above duties, the Magistrate shall assemble a file for the case.  The file shall contain Form 1 completed by the Magistrate.  The File shall also contain any reports, complaints, or other information provided to the Magistrate by the arresting officer, sheriff or person bringing the person before the Magistrate.

 

2.  Failure to complete Form 1 or assemble the file shall not be grounds to dismiss the charges.

 

G.  Forwarding the Record, File, and Affidavit of Indigence:  The Magistrate shall complete and forward the file to the appropriate office within 24 hours of giving the Magistrate’s Admonitions. 

 

1.  If the defendant is charged with a Misdemeanor, the Magistrate shall forward the File to the County Clerk who shall promptly bring any Affidavit of Indigence to the attention of a County Court at Law or County Judge.  The County Clerk shall assign the file a “Magistrate’s File Number”, keep an index of such files, and keep custody of the file.  If and when the person charged in the Magistrate’s File is charged by an Information, the contents of the Magistrate’s File, or the file itself, shall be transferred to the new Criminal File and the Clerk shall note in the Magistrate’s file and in the Magistrate’s File Index that the contents were transferred to a Criminal File and shall indicate the Cause number and style of the Criminal File. 

 

2.  If the defendant is charged with a Felony, or a Felony and a Misdemeanor, the Magistrate shall forward the file to the District Clerk, who shall promptly bring any Affidavit of Indigence to the attention of a District Judge.  The District Clerk shall assign the file a “Magistrate’s File Number”, keep an index of such files, and keep custody of the file.  If and when the person charged in the Magistrate’s File is charged by an Information or Indictment, the contents of the Magistrate’s File, or the file itself, shall be transferred to the new Criminal File and the Clerk shall note in the Magistrate’s file and in the Magistrate’s File Index that the contents were transferred to a Criminal File and shall indicate the Cause number and style of the Criminal File. 

 

3.  If the charges are later filed as a Misdemeanor in a Tom Green County Court at Law, the District Clerk shall forward the contents of the Magistrate’s File (or the File itself) to the County Clerk and shall note in the Magistrate’s file and in the Magistrate’s File Index that the contents were transferred to the County Clerk.

 

H.  Out-of-county Arrest Warrants: For persons arrested on out-of-county warrants, the Magistrate will ask the defendant if he/she would like to request appointed counsel.  The Magistrate will record the response and, if counsel is requested, the Magistrate will ensure assistance in completing the forms at the same time.  The form will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made.

I.  Defendant’s Request:  Immediately after performing the above duties, the Magistrate shall provide an opportunity for the defendant to request a court appointed attorney.  If the defendant requests the appointment of an attorney, the Magistrate will ensure that the defendant has reasonable assistance in completing Form 2 [Affidavit of Indigence (Request for Appointed Attorney)].  If magistrated in Tom Green County, the Indigent Defense Coordinator will assist each defendant in completing and filing Form 2.  If the defendant does not speak or understand the English language, the Magistrate shall inform the person in a manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31.



Indigence Determination Standards
12/15/2020

Indigence Determination Standards

 

III.  PROCEDURES AND FINANCIAL STANDARDS FOR DETERMINING INDIGENT   STATUS AND APPOINTMENT OF ATTORNEY

 

A. Judge’s Review:  The Judge appointing counsel for indigent defendants shall review Form 2 (and such other information bearing on the financial status of the defendant), make a determination of indigence, and appoint counsel where required by law (not later than the end of the third working day after the date on which the Court receives the defendant’s request for appointment of counsel).  Whether appointing counsel or denying appointed counsel, the Judge shall complete page 3 of Form 2 [Order Appointing/Denying Counsel]. “Working day” means Monday through Friday, except for official State holidays or any day the Courthouse is closed by order of the Commissioner’s Court.  Notwithstanding anything herein to the contrary, if an indigent defendant is released from custody prior to appointment of counsel under this section, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.

 

B.  Financial Considerations:  The Judge appointing counsel for indigent defendants shall consider the following standards for determining indigence and such other reasonable factors as the Court finds bearing on the financial inability of a defendant to retain counsel:

 

  1. Defendant's income from any and all sources, including:

 

  1. 100 percent of all wages and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);

 

  1. interest, dividends, and royalty income;

 

  1. self-employment income (income from self-employment, whether positive or negative, includes benefits allocated to an individual from a business or undertaking in the form of a proprietorship, partnership, joint venture, close corporation, agency, or independent contractor, less ordinary and necessary expenses required to produce that income);

 

  1. net rental income (defined as rental after deducting operating expenses and mortgage payments, but not including non-cash items such as depreciation) and;

 

  1. all other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance and alimony.

       2.   Assets and Property owned by the defendant, or in which the defendant has an interest;

       3.  Outstanding obligations of the defendant;

       4.  Necessary expenses of the defendant;

       5.  The number and age of the defendant's legal dependents;

       6.  Spousal income available to the defendant; and

       7.  Such other reasonable factors as determined by the Judge.

 

THE JUDGE SHALL NOT CONSIDER WHETHER THE DEFENDANT HAS POSTED BAIL, EXCEPT TO THE EXTENT THAT IT REFLECTS ON THE DEFENDANT'S FINANCIAL CIRCUMSTANCES.

 

C.  Eligibility:  Persons shall be deemed indigent or unable to afford an attorney if such person’s income does not exceed 125% of the Poverty Guidelines as established and revised annually by the United States Department of Health and Human Services and published in the Federal Register; and if the person’s non-exempt assets do not exceed the person’s debts by the lesser of:

 

  1. $2,500;

 

  1. $5,000 in the case of a defendant whose household includes a person who is age 60 or over, disabled, or institutionalized; or

 

  1. double the estimated cost of obtaining competent private legal representation on the offense with which the defendant is charged.

 

D.  Public Assistance:  A defendant is considered indigent if, at the time of requesting appointed counsel, the defendant or the defendant’s dependents have been determined to be eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.

 

E.  Substantial Hardship:  A defendant who does not meet any of the financial standards above shall nevertheless be determined indigent if the defendant is otherwise unable to retain private counsel without substantial hardship to the defendant or the defendant’s dependents, taking into account the nature of the criminal charges, the anticipated complexity of the defense, the estimated cost of obtaining competent private legal representation for the matter charged, and the amount needed for the support of the defendant and the defendant’s dependents.

 

F.  Presumption:  A defendant determined to be indigent is presumed to remain indigent for the remainder of the case, and any appeal of that case, unless a material change in the defendant’s financial circumstances occurs.

 

G.  Review:  A defendant’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court proceeding based on evidence of a material change in the defendant’s circumstances.  A defendant’s status as indigent or not indigent also may be reviewed in a formal hearing at any stage of a court proceeding based on additional information regarding financial circumstances, subject to the presumption.  If a defendant previously determined to be indigent subsequently is determined not to be indigent, an attorney appointed for the defendant shall be compensated by the county in accordance with these rules for the time reasonably expended in the case.

 

H.  Denial of Appointed Counsel:  If the Court, after reviewing Form 2, determines that the defendant does not qualify for an appointment, the Judge shall sign the Order Denying Counsel on page 3 of the form and the defendant shall be notified of the Court’s decision.

 

NOTHING IN THESE POLICIES DIMINISHES A COURT’S AUTHORITY OR OBLIGATION IN THE INTEREST OF JUSTICE TO SUA SPONTE APPOINT COUNSEL TO REPRESENT A DEFENDANT.

Minimum Attorney Qualifications
12/15/2020


Minimum Attorney Qualifications

 

IV. STANDARDS FOR ELIGIBILITY

 

A.  Purpose and Scope of Standards:  The following standards are designed to provide for a systematic method of providing qualified counsel to indigents in criminal cases. These standards address principles of eligibility and certification for trial, writs of habeas corpus, revocations of probation and counsel on appeal.

 

B.  General Standards of Eligibility:  The following standards shall be applied to attorney certification under any part of these standards.

 

1. Eligibility - The attorney shall be familiar with the practice and procedure of the criminal courts of Texas and shall be a member in good standing of the State Bar of Texas or admitted pro hoc vice.  Practice before a juvenile court shall be considered as experience in criminal litigation for purpose of these standards.  Pro bono service of counsel shall also be considered as experience for purpose of these standards.

 

2. Evidentiary Matters - The attorney shall be familiar with the Texas Penal Code, the Texas Rules of Evidence and the Texas Code of Criminal Procedure.  In addition, the attorney shall have knowledge and have demonstrated an understanding of the use of expert witnesses’ evidence, including, but not limited to, psychiatric and forensic evidence.

 

3. Co-Counsel - If the Court appoints co-counsel for any offense, it shall be at the discretion of the Court as to the qualification of counsel, except for Capital Felonies.

 

4. Initial Minimum Education Requirements - Within one (1) year of an initial certification under these standards, all attorneys shall complete a minimum of eight (8) hours approved training in the field of criminal law.  In order for any activity to be approved the subject matter must directly relate to criminal law or legal ethics and the activity must have been approved by the State Bar of Texas Committee on Minimum Continuing Legal Education.  For purposes of this education requirement, no more than ½ of the 8 hours can be through self-study.  Self-study is allowed only if approved by the State Bar of Texas Committee on Minimum Continuing Legal Education.

              5.  Minimum Continuing Legal Education Requirements -


  1. Appointment in Criminal Cases - An attorney who meets the requirements of this rule may be appointed to represent an indigent person arrested for, or charged with, a crime if the attorney is otherwise eligible to be appointed under the Appointment of Counsel Plan. An attorney may be appointed under this rule only if the attorney:


i.) completes a minimum of six hours of continuing legal education pertaining to criminal law during each 12 month reporting period. A “reporting period” begins on January 1st and ends on December 31st of each year.  Continuing legal education may include activities accredited under Section 4, Article XI, State Bar Rules, self-study, teaching at an accredited continuing legal education activity, attendance at a law school class or legal research-based writing, or

ii.) is currently certified in criminal law by the Texas Board of Legal Specialization.

 

  1. Reporting Period -

 
i.) Continuing legal education activity completed within a one-year period immediately preceding an attorney's initial reporting period may be used to meet the educational requirements for the initial year.


ii.) Continuing legal education activity completed during any reporting period in excess of the minimum six hour requirement for such period may be applied to the following period's requirement. The carryover provision applies to one year only.


iii.) To be included on the appointment list, each attorney must annually submit an affidavit to the County detailing the criminal continuing legal education activities completed in the prior year. Alternatively, an attorney may annually submit documentation showing the attorney is currently certified as a specialist in criminal law.

6.   Additional Reporting Requirements - To be included on the appointment list, not later than October 15 of each year, and on a form prescribed by the Texas Indigent Defense Commission, the attorney must submit to the County information for the preceding fiscal year that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the County under this article and Title 3, Family Code. 

7.    Emergency Appointment - If no attorney who meets these continuing legal education or board certification requirements is available by the time an attorney must be appointed in a case, another attorney may be appointed. The person making an appointment shall give priority to an attorney with experience in criminal or juvenile law, respectively.

 C.  Capital Offenses:

 

1.   An attorney seeking certification as lead counsel in a capital offense where the State of Texas is seeking the death sentence, must comply with the standards adopted by the 7th Administrative Judicial Region’s local selection committee and be on that Region’s list.             

 

2.  An attorney seeking certification as co-counsel (second chair) in a capital offense where the State of Texas is seeking the death sentence must comply with the standards adopted by the 7th Administrative Judicial Region’s local selection committee and be on that Region’s list for either lead counsel or second chair counsel.

 

D.  Standards in Non Capital Felony Cases:  The following minimum standards shall be applied to an attorney seeking certification as lead counsel for cases with the following penalty designation:

 

1. First degree felonies (This category also includes enhanced felonies which carry a first degree range of punishment.):

 

  1. be a member in good standing of the State Bar of Texas;

 

  1. have familiarity with the requisite court system;

 

  1. havethree (3) years of experience in criminal litigation;

 

  d.  have tried to verdict (as lead counsel or co-counsel for the defense or the prosecution) at least three (3) trials of any grade of felony. At least two (2) of these trials must be jury trials.

                2.  Second and Third Degree Felonies.(This category includes enhanced State Jail felonies.):

                       a. be a member in good standing of the State Bar of Texas;

                       b.  have familiarity with the requisite court system;

 

   c. have at least two(2) years of experience in criminal litigation;

 

  d. have tried to verdict (as lead or co-counsel for the defense or the prosecution) at least two (2) trials of any of the following: State Jail felony, Class A misdemeanor, or Class B misdemeanor. At least (1) of these trials must be a jury trial.

                3.  State Jail Felony, Felony Motion to Revoke Probation, and Class A and B Misdemeanors:

                     a.  be a member in good standing of the State Bar of Texas;

 

b.  have familiarity with the requisite court system;

 

c.  have at least (1) year of experience in criminal or civil litigation, which may include juvenile practice;

 

d. or said appointment is subject a co-counsel appointment with a mentor attorney  approved by the appointing Judge;

 

E.  Appellate Counsel:  The following minimum standards shall be applied to an attorney seeking certification as appellate counsel for cases with the following penalty designation:

 

1. Capital offenses and First Degree Felonies (This category also includes enhanced felonies which carry a first degree range of punishment.):

 

a.      have (3) years of experience in criminal litigation and;

 

b.      be a member in good standing of the State Bar of Texas;

 

c.   have filed a brief or argued two (2) cases before a Courts of Appeals of Texas, the Texas Supreme Court, the Texas Court of Criminal Appeals, the Fifth Circuit Court of Appeals or United States Supreme Court, or has demonstrated commensurate experience.

 

2.   In all other felonies and misdemeanors:

 

a.  be a member in good standing of the State Bar of Texas;

 

b.  an attorney shall have (1) year experience in appellate practice and procedure and filed a brief or argued a case before a Court of Appeals for the State of Texas, the Texas Court of Criminal Appeals, the Texas Supreme Court, Fifth Circuit Court of Appeals or United States Supreme Court or shall have (2) years of general experience in criminal litigation.

 

F.  Writ Counsel:  In capital felonies where the death penalty has been assessed, appointed counsel for any writ of habeas corpus must possess the following qualifications:

 

1.  be a member in good standing of the State Bar of Texas;

 

2.  must have (3) years of criminal litigation experience and;

 

3.  must have filed a brief or argued before a Court of Appeals of the State of Texas, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Fifth Circuit Court of Appeals, or the United States Supreme Court.

 

G.  For all other grades of offenses, counsel for writs of habeas corpus shall have at least (1) year of experience in criminal or civil litigation.

 

H.  Grounds for Removal:

               1.  An attorney may be removed from the appointment list if the attorney:


a.   has failed, two or more times, to contact or interview any client 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 a fine only;

 

g.   is under indictment or being formally charged with an offense, other than an

      offense punishable by a fine only; or


h.  has intentionally misrepresented statements on the application for the appointment list.

               2.  An attorney may also be removed from the appointment list for another stated good cause.

               3.  Referral - If a judge believes that an attorney has violated any of the provisions listed in the paragraph above, the judge may refer an attorney to the Board of Judges 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.

               4.  Notification/Hearing - Upon receiving an attorney referral, the Board of Judges 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 Board of 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.

                5.  Action - After the Board of Judges meets and gives the attorney an opportunity to be heard, the Board of Judges shall determine whether the attorney should:

                     a.   remain on the appointment list at the same level;

b.   moved to an appointment list for indigent defendants charged with less serious offenses; or

c.   be removed from appointment list altogether.

                6.  The attorney may be removed from the appointment list, or moved to an appointment list for indigent defendants charged with less serious offenses, by a majority vote of the judges                  present. In addition, the majority of the judges may also vote to require the attorney to take other rehabilitative measures.Removals from any list may be probated.For removal or                            probated  removals, the judges ordering the removal may require the completing of rehabilitative measures as a condition of probation or reapplication.An order of removal should                        state in the order the earliest date at which the attorney may apply for reinstatement.An attorney who was removed from an appointment list under “H. Grounds for Removal" (1),                          subparagraphs “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.

                7.  The decision of the board of judges is final and may not be appealed.

 

V. LIST OF ATTORNEYS FOR COURT APPOINTED COUNSEL FOR INDIGENT ACCUSED PERSONS

 

A.  An Attorney may, at any time, file a written application to be placed on the list of attorneys qualified to receive criminal appointments in a county covered under this plan.  A separate application may be required for each county.  To be eligible for placement on an appointment list, the attorney must meet the General Standards of Eligibility and applicable additional standards as set forth herein-above.

 

B.  Misdemeanor Cases:


      1. To be considered for placement on the approved list of attorneys eligible for appointment in misdemeanor cases, an attorney shall complete an application for appointment to, or                placement on, said list and submit it to the appropriate court. For Tom County Court at Law, Form 6 [Attorney Application for Appointment in Misdemeanor Cases]. For Tom               Green  County Court at Law 2, Form 7 [Attorney Application for Appointment in Misdemeanor Cases]. For all other counties, contact the court in question for the appropriate form.

     2.  The County Judge (and Court at Law Judges if applicable) shall approve a list of attorneys eligible for appointment in misdemeanor cases on or before January 1st of each year, and      such list shall be posted outside of the County Clerk's office and available to the public upon request.The list may be modified from time to time as necessary.  Attorneys must be                  approved by a majority of judges to be placed on the appointment list.

     3.  The County Judge (and Court at Law Judges if applicable) shall semi-annually review, and make additions and deletions to the list and approve the applications to be included on           the  list of eligible court appointed attorneys and cause the list to be posted outside the County Clerk's office and made available to the public upon request. Attorneys must be approved       by a majority of judges to be placed on the appointment list.

     4.  Those attorneys who the County Judge (and Court at Law Judges if applicable) have by unanimous vote found to be unqualified to represent defendants in criminal cases before the       County Courts and/or County Courts at Law will be excluded from the lists for appointments for misdemeanors.  An attorney may appeal his inclusion or exclusion from the list by              requesting a conference with the Judge(s).                     

      C. Felony Cases:  The District Judges shall establish the following lists from which attorneys for indigent defendants shall be appointed in felony cases: First Degree Felony; Second and              Third Degree Felonies; State Jail Felony and Motions to Revoke Felony Probation; and Appellate and Writ Counsel.  In addition, when unable to appoint The Regional Public Defender for          Capital Cases the District Judges shall use the Capital Felony list provided by the 7th Administrative Judicial Region, but will appoint attorneys from that list who also reside in Tom Green          County, Texas, when possible.

               1.  To be considered for placement on the approved list of attorneys eligible for appointment in felony cases, an attorney shall complete Form 5 [Attorney Application for                                     Appointment in Felony Cases] and submit it to a Criminal Court Administrator for the District Courts of Tom Green County or – for all other counties - to the Court Administrator for                 the District Court having jurisdiction in the county to which the attorney wishes to apply.

 2.  In Tom Green County, the Judges of the District Courts shall approve the lists of eligible attorneys for Tom Green County.Attorneys must be approved by a majority of the District Judges to be placed on the appointment list.

                3.  In each other county, the Judge of the District Court for that county shall approve the list of eligible attorneys.

                4.  On or before January 1 of each year, the list of eligible attorneys for each county shall be posted outside of the office of the District Clerk for that county and be available to the                        public upon request. The lists may be modified from time to time as necessary. 

                5.  The Judge(s) of the District Court(s) of each county shall annually review, make additions and deletions to the lists, approve the lists and cause the same to be posted outside the                        District Clerk's office.

               6.  Those attorneys who have been found to be unqualified to represent defendants in criminal cases in a particular county (by ¾ vote of the District Judges of Tom Green County or by                 the District Judge in any other county) will be excluded from the lists for appointments for felonies.An attorney may appeal his inclusion or exclusion from the list by requesting a                         conference with the Judge(s).

  

VI. RESPONSIBILITY OF COURT APPOINTED COUNSEL

 

  1. Court appointed counsel shall make every reasonable effort to contact the defendant not later than the end of the 1st working day after appointment and to interview the defendant as soon as practicable.

 

  1. Court appointed counsel shall timely inform the client of any matter 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.

 

  1. Court appointed counsel shall represent a defendant until (1) charges are dismissed, (2) the completion of trial and all post trial proceedings in the trial court, or (3) the Court, after entering a finding for good cause on the record, relieves the attorney or replaces the attorney with other counsel.

  1. Court may replace an attorney if the appointed attorney does not make an effort to interview the defendant by the end of the 7th working day or does not interview the defendant as soon as possible, or may sanction said attorney for violation of those provisions.

 E. A majority of the Judges trying criminal cases in the county may remove an attorney from consideration for appointments, if the attorney intentionally or repeatedly does not fulfill the         attorney’s duties as required by law, rules, local rules, or provisions for providing reasonable assistance to a defendant.

 

Prompt Appointment of Counsel
12/15/2020

Prompt Appointment of Counsel

 

VII. APPOINTMENT PROCEDURES AND RULES

 Persons appearing in court without counsel will be advised of the right to counsel and procedures for obtaining counsel. 

 A.  Judge’s Review: The Judge appointing counsel for indigent defendants shall review the Affidavit of Indigence, and such other information bearing on the financial status of the defendant, make a determination of indigence, and appoint counsel where required by law not later than the end of the third working day after the date on which the Court receives the defendant’s request for appointment of counsel.  “Working day” means Monday through Friday, except for official State holidays or any day the Courthouse is closed by order of the Commissioner’s Court.  Notwithstanding anything herein to the contrary, if an indigent defendant is released from custody prior to appointment of counsel under this section, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.  


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

 

  1. 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.

 

  1. 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 County Court (for misdemeanors) or the District Court (for felonies) in the county in which the charges are pending.

 

B.  Misdemeanor Case:  The County Judge or County Court at Law Judge, upon any finding of indigence and request for court appointed counsel, shall sign an Order Appointing Counsel and deliver it to the attorney.  The staff of the County Judge or County Court at Law Judge shall immediately contact the attorney by phone, fax, or in person and notify the attorney of the appointment and the last known location of the defendant.

 

C. Non-capital Felony and Juvenile Cases:  A District Court Judge, upon a finding of indigence and request for court appointed counsel, shall sign an Order Appointing Counsel and deliver it to the attorney.  The staff of the District Court Judge shall immediately contact the attorney by phone, fax, or in person and notify the attorney of the appointment and the last known location of the defendant.

         D.  Capital Felony Cases: A District Court Judge, upon any finding of indigence and request for court appointed counsel, shall sign an Order Appointing Counsel and deliver it to the                   attorney. The staff of the District Court Judge shall immediately contact the attorney by phone, fax, or in person and notify the attorney of the appointment and the last known location of             the defendant.


Attorney Selection Process
12/15/2020

Attorney Selection

 

 VIII. ATTORNEY SELECTION PROCESS

 

A.  Procedure in All Cases: Upon determining that an accused person is eligible for appointment of an attorney, the Judge authorized to make the appointment shall review the appropriate list of attorneys.  The Judge shall appoint an attorney among the next 5 names on the list in the order in which the attorney’s names appear on the list unless:

 

1.  the defendant requesting appointed counsel does not understand English, in which case the person making the appointment will appoint the attorney who both appears next in order on the list and can communicate with the defendant in the defendant’s language (either personally or through an interpreter supplied at no cost to the County); or                   

 

2.  in unusual circumstances, the person making the appointment enters a written finding of good cause on the record for appointing any qualified, willing attorney regardless of whether the attorney’s name is among the first five names on the appropriate list.

  

B.  Attorney Appointed Out of Order:  Whenever an attorney is appointed out of order under the above rules, the attorney who is appointed out of order will move to the last place in order on that list, and any attorney who was not appointed will remain at the top of the list until appointed or removed from the list.

 

C.  Duration of Appointment:  Each attorney appointed under this rule to represent the defendant in the trial court is appointed to represent the defendant through trial and post-trial proceedings in the trial court.

 

D.  Appeal:  At the conclusion of all proceedings in the trial court, including post-trial motions, if an indigent defendant wishes to appeal, the appointing Judge will appoint an attorney on the Appellate List under the same procedure as provided above in all other cases.

 

E.  Motions to Revoke Probation: Notwithstanding the above procedures, a Court may appoint as the attorney in a Motion to Revoke Probation, the attorney who represented the defendant in the original proceeding.

 

F.  Multiple Cases With Same Defendant:  Notwithstanding the above procedures, a Court may appoint as the attorney in a case, the attorney who is representing the defendant in other pending cases, so long as the attorney meets the qualifications for appointment in all of the cases.

 

G. Procedure in Capital Cases.

1.  The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless the court makes a finding of good cause on the record to appoint private counsel.

a.   If a co-defendant requests appointment of counsel and is determined to be indigent, the Appointing Authority shall appoint counsel pursuant to the standards and procedures stated in this Section.

b.   If private counsel is appointed to a co-defendant, rather the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in this Section.

2.  The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if:

a.   A conflict of interest exists;

b.   The Office has insufficient resources to provide adequate representation;

c.   The Office is incapable of providing representation in accordance with the rules of professional conduct;

d.   Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or

e.   The Office shows other good cause for refusing appointment.

3. The Appointing Authority shall immediately contact the attorneys appointed by phone, fax, email or in person and notify the attorneys of the appointment and the last known location of the defendant.

Fee and Expense Payment Process
12/15/2020

Fee and Expense Payment Process

 

IX. COMPENSATION OF COURT APPOINTED COUNSEL

 

  1. Court appointed counsel shall receive such reasonable compensation, in accordance with a fee schedule, as established by a Standing Order of the District and County Courts at Law Judges of Tom Green County, Texas Form 3 [Attorney Fee Schedule].

 

  1. The fee schedule adopted shall comply with the Texas Code of Criminal Procedure Article 26.05 and all applicable law and shall be sent to the Tom Green County Commissioner's Court.

  1. 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.

 

  1. 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.

 

  1. 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.

 


X. 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.

 

  1. Investigative and Expert Expenses: Counsel appointed in a non-capital case shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.Expenses incurred with and without prior court approval shall be reimbursed according to the following procedures and the Code of Criminal Procedure.When possible, prior court approval should be obtained before incurring expenses for investigation and for mental health and other experts.

 

  1. Procedure With Prior Court Approval: Appointed counsel may file with the trial court a pre-trial ex parte confidential request for advance approval and payment of investigative and expert expenses.

 

1.  The request for expenses must state, as applicable:


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

 

2.  The Court shall grant the request, in whole or in part, if the request is reasonable.  If the Court denies the request, in whole or in part, the Court shall:

 

                           a.  state in writing the reasons for denial;

                           b.  attach the denial to the confidential request;

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

 

3.  If the expenses actually incurred for investigative and expert expenses are less than the amount approved and paid by the Court in advance, counsel shall reimburse the County the difference.  If the expenses actually incurred for investigative and expert expenses are more than the amount approved and paid by the Court in advance, counsel may request reimbursement for the difference under “C.  Procedure Without Prior Court Approval.”

 

  1. 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.

 

  1. The Court may direct that payment be made directly to the investigator or expert as provided in Code of Criminal Procedure Article 26.05(h).
Miscellaneous
12/15/2020

Miscellaneous

 

XI. LOCAL ADMINISTRATIVE JUDGES’ REPORTING COMPLIANCE

 

The Policy was adopted effective beginning October 20, 2020. 

 

XII. MISCELLANEOUS

 

  1. This Indigent Defense Policy is adopted as a countywide alternative program for appointing counsel for indigent defendants in criminal cases under Texas Code of Criminal Procedure §26.04(g).

 

  1. Nothing in this Policy limits the Court’s inherent powers, including among other powers, the power to appoint attorneys in the interest of justice and the power to administer the Court’s docket.
Plan Documents
Coke Concho Irion Runnels Schleicher Sterling Tom Green District and County Court Affidavit of Indigence.docx (12/15/2020 9:38:19 PM) view
Coke Concho Irion Runnels Schleicher Sterling Tom Green District and County Court Attorney Application for Appointment CCL.pdf (12/15/2020 9:40:28 PM) view
Coke Concho Irion Runnels Schleicher Sterling Tom Green District and County Court Attorney Application for Appointment CCL2.pdf (12/15/2020 9:41:00 PM) view
Coke Concho Irion Runnels Schleicher Sterling Tom Green District and County Court Attorney Application for Appointment.docx (12/15/2020 9:38:45 PM) view
Coke Concho Irion Runnels Schleicher Sterling Tom Green District and County Court Attorney Fee Schedule.docx (12/15/2020 9:39:17 PM) view
Coke Concho Irion Runnels Schleicher Sterling Tom Green District and County Court Attorney Fee Voucher.docx (12/15/2020 9:39:38 PM) view
Coke Concho Irion Runnels Schleicher Sterling Tom Green District and County Court Magistrate’s Warning Form.pdf (12/15/2020 9:37:00 PM) view