INDIGENT DEFENSE PLAN

Amended October 24, 2022

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.

Arresting Officer and Sheriff’s Responsibilities

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.

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 punishable by incarceration and within 48 hours after the arrest in a felony case.

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.

By 9:00 a.m. each day, the Sheriff shall advise the Magistrate of all persons who have been brought into his custody in the immediately preceding 24 hours.  In addition, the Concho Valley Regional Indigent Defense Coordinator (CVRIDC) shall be provided with the same list by electronic means so that the CVRIDC can then distribute the same list to the courts, public defender office and prosecution.

 

Release of Defendants Arrested Without Warrant

The Sheriff shall also determine if anyone in jail is entitled to a bond under Code of Criminal Procedure Article 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.

Under Article 17.033 (a), a person arrested for a misdemeanor without a warrant and who is detained in jail must be released not later than the 24th hour after arrest, on a bond in an amount not to exceed $5,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense.

Under Article 17.033 (b), a person arrested for a felony without a warrant and who is detained in jail must be released not later than the 48th hour after arrest, on a bond in an amount not to exceed $10,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense.

If requested by the state, a magistrate may postpone the release of the person for not more than 72 hours after the person’s arrest if a probable cause determination has not been made, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

 

Magistrate’s Responsibilities

General: Within 24 hours of a person’s arrest on a misdemeanor charge punishable by incarceration 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 is authorized to appoint counsel (the district judges for felony arrests, and county judges of the arresting county for Class A and B misdemeanor arrests) and if the accused requests appointment of counsel, the magistrate shall make a determination of indigence during the magistration hearing, and if the defendant is found to be indigent, appoint counsel as provided herein.

If the magistrate is not authorized to appoint counsel (all magistrates other than the district judge for felony arrests, and county judges of the arresting county for Class A and B misdemeanor arrests) and if the accused requests appointment of counsel, the magistrate shall ensure the online portal (when it becomes available) and application process is completed during the magistration hearing, and as necessary assist the accused in completing the process for requesting appointment of counsel by accessing the Court's online automated Application Questionnaire (when it becomes available) and providing reasonable assistance in inputting the requested information and completing the form during the magistration hearing. This shall be done during the magistration hearing, or if requested after the hearing, without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel.

At the Magistrate’s hearing, the magistrate should first confirm that the accused can hear, and is able to speak and understand English. If not, the magistrate must ensure that the magistrate can communicate effectively with the accused in a language that they understand, including sign language, in a manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31. The magistrate must do so within the time limits described herein.

After determining that the magistrate can communicate effectively with the accused, the magistrate shall, in clear language, do the following:

Advise the accused of the accusation against him/her and any affidavit filed therewith;

Admonish the accused of all warnings required by Texas Code of Criminal Procedure Article 15.17(a):

• The right to retain counsel;
• The right to remain silent;
• The right to have an attorney present during any interview with peace officers or attorneys representing the state;
• The right to terminate an interview at any time;
• The right not to make a statement at all;
• That any statement made by the accused may be used against him/her; and
• The right to an examining trial.

 

In compliance with Article 15.17(e) of the Texas Code of Criminal Procedure, the Magistrate shall: 

• Inform the accused of the right to appointed counsel if the person cannot afford counsel, and the procedures for requesting appointment of counsel.
• Inquire as to whether accused is requesting that counsel be appointed.

Log on to the Online Application Portal (when it becomes available) and complete the Magistrate’s Form, indicating whether the accused requested to apply for court-appointed counsel.

In the online application portal, the magistrate shall record the following:

• The date and time the accused was arrested and the date and time when he/she was brought before the magistrate.
• Whether the magistrate informed the accused of the right to request appointment of counsel and asked the accused whether he/she wants to request counsel.
• Whether the accused requested appointment of counsel.
• If the accused requested to apply for court-appointed counsel, assist the accused in completing the process for requesting appointment of counsel by accessing the Court's online automated Application Questionnaire and providing reasonable assistance in inputting the requested information and completing the form during the magistration hearing.
• If the accused declines to request appointment of counsel, assist the accused in accessing the Court's online automated Application Questionnaire and provide reasonable assistance in noting in the appropriate place on the form that the accused is declining the appointment of counsel.

Magistrates must use the online automated Application Questionnaire (when it becomes available), and shall not use the written Application unless, due to technical difficulties, the online system is not functioning or available. If due to technical difficulties the online system is not functioning or available, the magistrate shall use the written form attached to and forming a part of this Plan, and comply with all other deadlines described in this Plan.

 

Mental Health Issues at Magistration

If the magistrate has reason to believe the accused may not be mentally competent, the magistrate shall enter a request for counsel on behalf of the accused. Such a request will alert the appointing authority that counsel competent to represent mentally ill persons should be appointed. The magistrate shall inform the jail staff of their concern, and remind them of their obligation under Texas Code of Criminal Procedure Article 16.22 to inform the magistrate within 12 hours of receiving credible information that may establish reasonable cause to believe that the accused has a mental illness or is a person with an intellectual disability.

If a magistrate before or during the magistration hearing receives credible information that may establish reasonable cause to believe that the accused has a mental illness or is a person with an intellectual disability, the magistrate shall without delay conduct the proceedings specified in Articles 16.22 and 17.032 of the Texas Code of Criminal Procedure.

Probable Cause Determination

In cases where the individual was arrested without an arrest warrant, bench warrant, capias, or other order of magistrate or judge, the magistrate shall determine if there is probable cause to believe the person committed the offense.

If probable cause has not been determined by a magistrate:

A person arrested for a misdemeanor must be released on bond, in an amount not to exceed $5,000, not later than 24 hours after the person's arrest.

A person arrested for a felony must be released on bond, in an amount not to exceed $10,000, not later than 48 hours after the person’s arrest.

If requested by the state, the magistrate may postpone the release of the defendant for not more than 72 hours after the defendant's arrest, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

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 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 Article 15.03.) In these cases, the Magistrate shall complete the applicable portion of Form 1.

 

Justices of the Peace

To accomplish these duties in Tom Green County, the Tom Green County Justices of the Peace 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.  In all other counties covered by this plan, the Justice of the Peace shall commence to perform these duties by 1:00 p.m. each day.

District & County Judges

The District Judges of each county, the Tom Green County Statutory Court at Law Judges, and the Constitutional County Judges of each county may sit as Magistrates and, if they do so, they shall comply with these procedures.

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.

In compliance with Article 17.022(a) of the Texas Code of Criminal Procedure, any magistrate considering the release on bail of a defendant charged with an offense punishable as a Class B misdemeanor or any higher category of offense shall order that:

1. the personal bond office established under Article 17.42 for the county in which the defendant is being detained, if a personal bond office has been established for that county, or other suitably trained person including judicial personnel or sheriff's department personnel, use the public safety report system developed under Article 17.021 to prepare a public safety report with respect to the defendant; and
2. the public safety report prepared under Subdivision (1) be provided to the magistrate as soon as practicable but not later than 48 hours after the defendant's arrest.

 

The magistrate shall consider the public safety report before setting bail.

All magistrates must be in compliance with the training required under Texas Code of Criminal Procedure Article 17.024 and Texas Government Code 27.005.

 

Release on Bail of Person Charged with Offense Committed While on Bail

In compliance with Article 17.022(a) of the Texas Code of Criminal Procedure,

(1)  if a defendant is charged with committing an offense punishable as a felony while released on bail for another offense punishable as a felony and the subsequent offense was committed in the same county as the previous offense, only the court before whom the case for the previous offense is pending may release the defendant on bail; and

(2)  if a defendant is charged with committing an offense while released on bail for another offense and the subsequent offense was committed in a different county than the previous offense, electronic notice of the charge must be promptly given to the court specified by Subdivision (1) for purposes of reevaluating the bail decision, determining whether any bail conditions were violated, or taking any other applicable action.

This provision does not extend any deadline provided by Article 15.17.

 

Bail Decision

As required by Art. 17.028 of the Code of Criminal Procedure, without unnecessary delay but not later than 48 hours after a defendant is arrested, a magistrate shall order, after individualized consideration of all circumstances and of the factors required by Article 17.15(a), that the defendant be:

1. granted personal bond with or without conditions;
2. granted surety or cash bond with or without conditions; or
3. denied bail in accordance with the Texas Constitution and other law.

 In setting bail, the magistrate shall impose the least restrictive conditions, if any, and the personal bond or monetary bond necessary to reasonably ensure the defendant's appearance in court as required and the safety of the community, law enforcement, and the victim of the alleged offense.

In each criminal case, unless specifically provided by other law, there is a rebuttable presumption that bail, conditions of release, or both bail and conditions of release are sufficient to reasonably ensure the defendant's appearance in court as required and the safety of the community, law enforcement, and the victim of the alleged offense.  For purposes of setting bail or rebutting the presumption, the court may not consider testimonial evidence.

A judge may not adopt a bail schedule or enter a standing order related to bail that is inconsistent with this plan or the Texas Code of Criminal Procedure, or that authorizes a magistrate to make a bail decision for a defendant without considering each of the factors in Article 17.15(a).

A defendant who is denied bail or who is unable to give bail in the amount required by any bail schedule or standing order related to bail shall be provided with the warnings described by Article 15.17.

A defendant who is charged with an offense punishable as a Class B misdemeanor or any higher category of offense shall be provided with the opportunity to file with the applicable magistrate a sworn affidavit in substantially the following form:

"On this ___ day of _____, 2____, I have been advised by the (name of the court) Court of the importance of providing true and complete information about my financial situation in connection with the charge pending against me.  I am without means to pay ______ and I hereby request the court to set an appropriate bail. (signature of defendant)."

A defendant filing said affidavit shall complete a form to allow a magistrate to assess information relevant to the defendant's financial situation.  The form must be the form used to request appointment of counsel under Article 26.04 or a form promulgated by the Office of Court Administration of the Texas Judicial System that collects, at a minimum and to the best of the defendant's knowledge, the following information:

1. any income received by the defendant and the defendant's spouse in the preceding two years;
2. the defendant's employment history and the employment history of the defendant's spouse, including gross monthly pay, for the preceding two years; 
3. any cash holdings available to the defendant or the defendant's spouse and the financial institution in which the cash is held;
4. the defendant's major noncash assets, including real estate and motor vehicles;
5. money owed to the defendant or to the defendant's spouse;
6. any dependents of the defendant or of the defendant's spouse, and the dependents' ages;
7. an itemized estimate of the defendant's monthly expenses;
8. an estimate of the defendant's tax and legal expenses;
9. any anticipated major changes in the defendant's income or expenses; and
10. any additional relevant information the defendant is able to provide to explain the defendant's inability to pay bail according to the schedule.

 

A defendant who files an affidavit under Article 17.028(f) of the Texas Code of Criminal Procedure is entitled to a prompt hearing before the magistrate on the bail amount.  The hearing may be held before the magistrate making the original bail decision or may occur as a separate pretrial proceeding held for that purpose.  The defendant must be given the opportunity to present evidence and respond to evidence presented by the attorney representing the state.  The magistrate shall consider the facts presented and the rules established by Article 17.15(a) and shall set the defendant's bail.  If the magistrate does not set the defendant's bail in an amount below the amount required by the schedule, the magistrate shall issue written findings of fact supporting the bail decision.

 The judges of the courts trying criminal cases in a county must report to the Office of Court Administration of the Texas Judicial System each defendant for whom a hearing under Article 17.028(h) was not held within 48 hours of the defendant's arrest.  If a delay occurs that will cause the hearing under Subsection (h) to be held later than 48 hours after the defendant's arrest, the magistrate or an employee of the court or of the county in which the defendant is confined must notify the defendant's counsel of the delay.

 

Regarding Personal Bond

In compliance with Art. 17.03 of the Texas Code of Criminal Procedure, only the court before whom the case is pending may release on personal bond a defendant who:

(1)  is charged with an offense under the following sections of the Penal Code:

A. Section 19.03 (Capital Murder);

B. Section 20.04 (Aggravated Kidnapping);

C. Section 22.021 (Aggravated Sexual Assault);

D. Section 22.03 (Deadly Assault on Law Enforcement or Corrections Officer, Member or Employee of Board of Pardons and Paroles, or Court Participant);

E. Section 22.04 (Injury to a Child, Elderly Individual, or Disabled Individual);

F. Section 29.03 (Aggravated Robbery);

G. Section 30.02 (Burglary); or

H. Section 71.02 (Engaging in Organized Criminal Activity);

I. Section 21.02 (Continuous Sexual Abuse of Young Child or Disabled Individual); or

J. Section 20A.03 (Continuous Trafficking of Persons);

(2) is charged with a felony under Chapter 481, Health and Safety Code, or Section 485.033, Health and Safety Code, punishable by imprisonment for a minimum term or by a maximum fine that is more than a minimum term or maximum fine for a first degree felony; or

(3) does not submit to testing for the presence of a controlled substance in the defendant's body as requested by the court or magistrate under Subsection (c) of this article or submits to testing and the test shows evidence of the presence of a controlled substance in the defendant's body.

 

No person may be released on personal bond if the defendant:

1. is charged with an offense involving violence; or
2. while released on bail or community supervision for an offense involving violence, is charged with committing:

1. any offense punishable as a felony; or
2. an offense under the following provisions of the Penal Code:

1. Section 22.01(a)(1) (assault);
2. Section 22.05 (deadly conduct);
3. Section 22.07 (terroristic threat); or
4. Section 42.01(a)(7) or (8) (disorderly conduct involving firearm).

(b-3)  In this article:

1. "Controlled substance" has the meaning assigned by Section 481.002, Health and Safety Code.
2. "Offense involving violence" means an offense under the following provisions of the Penal Code:

 

1. Section 19.02 (murder);
2. Section 19.03 (capital murder);
3. Section 20.03 (kidnapping);
4. Section 20.04 (aggravated kidnapping);
5. Section 20A.02 (trafficking of persons);
6. Section 20A.03 (continuous trafficking of persons);
7. Section 21.02 (continuous sexual abuse of young child or disabled individual);
8. Section 21.11 (indecency with a child);
9. Section 22.01(a)(1) (assault), if the offense:

     (i) is punishable as a felony of the second degree under Subsection (b-2) of that section; or

     (ii) involved family violence as defined by Section 71.004, Family Code

10. Section 22.011 (sexual assault);
11. Section 22.02 (aggravated assault);
12. Section 22.021 (aggravated sexual assault);
13. Section 22.04 (injury to a child, elderly individual, or disabled individual);
14. Section 25.072 (repeated violation of certain court orders or conditions of bond in family violence, child abuse or neglect, sexual assault or abuse, indecent assault, stalking, or trafficking case);
15. Section 25.11 (continuous violence against the family);
16. Section 29.03 (aggravated robbery);
17. Section 38.14 (taking or attempting to take weapon from peace officer, federal special investigator, employee or official of correctional facility, parole officer, community supervision and corrections department officer, or commissioned security officer);
18. Section 43.04 (aggravated promotion of prostitution);
19. Section 43.05 (compelling prostitution); or
20. Section 43.25 (sexual performance by a child).

Rules for Setting Amount of Bail

Article 17.15 of the Texas Code of Criminal Procedure must be complied with, including:

(a)  The amount of bail and any conditions of bail to be required in any case in which the defendant has been arrested are to be regulated by the court, judge, magistrate, or officer taking the bail in accordance with Articles 17.20, 17.21, and 17.22 and are governed by the Constitution and the following rules:

1. Bail and any conditions of bail shall be sufficient to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be used to make bail an instrument of oppression.
3. The nature of the offense and the circumstances under which the offense was committed are to be considered, including whether the offense: (A)is an offense involving violence as defined by Article 17.03; or (B)involves violence directed against a peace officer.
4. The ability to make bail shall be considered, and proof may be taken on this point.
5. The future safety of a victim of the alleged offense, law enforcement, and the community shall be considered.
6. The criminal history record information for the defendant, including information obtained through the statewide telecommunications system maintained by the Department of Public Safety and through the public safety report system developed under Article 17.021, shall be considered, including any acts of family violence, other pending criminal charges, and any instances in which the defendant failed to appear in court following release on bail.
7. The citizenship status of the defendant shall be considered.

(b)  In this article, "family violence" has the meaning assigned by Section 71.004, Family Code.

 

Notice of Conditions

In compliance with Art. 17.51 of the Texas Code of Criminal Procedure:

(a)   as soon as practicable but not later than the next business day after the date a magistrate issues an order imposing a condition of release on bond for a defendant or modifying or removing a condition previously imposed, the clerk of the court shall send a copy of the order to:

(1)  the appropriate attorney representing the state; and

(2)  the sheriff of the county where the defendant resides.

(b)   A clerk of the court may delay sending a copy of the order under Subsection (a) only if the clerk lacks information necessary to ensure service and enforcement. (c)   If an order described by Subsection (a) prohibits a defendant from going to or near a child care facility or school, the clerk of the court shall send a copy of the order to the child care facility or school.

(c)   The copy of the order and any related information may be sent electronically or in another manner that can be accessed by the recipient.

(d)   The magistrate or the magistrate's designee shall provide written notice to the defendant of:

1. the conditions of release on bond; and
2. the penalties for violating a condition of release.

(e) The magistrate shall make a separate record of the notice provided to the defendant under Subsection (e).

(f) The Office of Court Administration of the Texas Judicial System shall promulgate a form for use by a magistrate or a magistrate's designee in providing notice to the defendant under Subsection (e).The form must include the relevant statutory language from the provisions of this chapter under which a condition of release on bond may be imposed on a defendant.

 

Magistrate’s Record and File

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.

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

Forwarding the Record, File, and Affidavit of Indigence

The Magistrate shall complete and upload the forms to the Online Portal and/or forward the file to the Concho Valley Regional Indigent Defense Coordinator (CVRIDC) office within 24 hours of giving the Magistrate’s Admonitions.

If the defendant is charged with a Misdemeanor, the Magistrate or the Concho Valley Regional Indigent Defense Coordinator (CVRIDC) shall electronically 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.

If the defendant is charged with a Felony, or a Felony and a Misdemeanor, the Magistrate or the Concho Valley Regional Indigent Defense Coordinator (CVRIDC) shall electronically forward the file to the District Clerk in the county in which the charge is pending, 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 District 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.

If the charges are later filed as a Misdemeanor, 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.

Out-of-County Arrest Warrants

For persons arrested on out-of-county warrants (from counties outside of the seven (7) counties covered by this plan), 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 by the Magistrate or the Concho Valley Regional Indigent Defense Coordinator (CVRIDC) to the appointing authority in the county issuing the warrant within 24 hours of the request being made.

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.”

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);

 

2. interest, dividends, and royalty income;

 

3. 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);

 

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

 

5. 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;

 

2. $5,000 in the case of a defendant whose household includes a person who is age 60 or over, disabled, or institutionalized; or

 

3. 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.

Appointment of Attorneys (When the Appointment of the CVPDO is Not Otherwise Appropriate)

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-below.

Misdemeanor Cases: To be considered for appointment to 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, Tom Green County - Form 6 [Attorney Application for Appointment in Misdemeanor Cases]. For County Court at Law 2, Tom Green County - Form 7 [Attorney Application for Appointment in Misdemeanor Cases]. For all other counties, contact the court in question for the appropriate form

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.  

Those attorneys who the County Judge and Court at Law Judges (if applicable) have by unanimous vote found to not be qualified 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 Judges.

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 7^th Administrative Judicial Region, but will appoint attorneys from that list who also reside in Tom Green County, Texas, when possible.

To be considered for appointment to the approved list of attorneys eligible for appointment in felony cases, an attorney shall complete an application for appointment to or placement on said list and submit it to the appropriate court.

The Judges of the District Courts of Tom Green County shall approve the lists of eligible attorneys on or before January 1 of each year and such lists shall be posted outside of the District Clerk's office and be available to the public upon request. The lists 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.

The Judges of the District Courts of Tom Green County shall annually review, make additions and deletions to the lists, approve the lists, and cause the same to be posted outside the Tom Green County District 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. 

Those attorneys who the Judges of the District Courts of Tom Green County have by 3/4 vote found not to be qualified to represent defendants in criminal cases before the District Courts of Tom Green County, Texas will be excluded from the lists for appointments for felonies. An attorney appeal his inclusion or exclusion from the list by requesting a conference with the Judges.

Responsibility of Court Appointed Counsel

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.

 

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.

 

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.

 

The 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.

 

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.

 

Standards for Eligibility as Appointed Counsel

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

 

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.

 

1. 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.

2. 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 Concho Valley Regional Indigent Defense Coordinator (CVRIDC) 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 Concho Valley Regional Indigent Defense Coordinator (CVRIDC)  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.

Capital Offenses:  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.           

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.

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;

 

2. have familiarity with the requisite court system;

 

3. havethree (3) years of experience in criminal litigation; and
4. 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.):

 

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

 

2. have familiarity with the requisite court system;

 

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

 

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;

 

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 the Courts of Appeal 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 the Courts of Appeal 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.

 

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 the Courts of Appeal 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.

 

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.

 

Grounds for Removal:   An attorney may be removed from the appointment list if the attorney:

1. 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;
2. has submitted a claim for legal services not performed as specified in Article 26.05(e), Code of Criminal Procedure;
3. fails to maintain compliance with each of the appointment list guidelines;
4. has been found by a court to have provided ineffective assistance of counsel;
5.  has violated a rule of professional responsibility;
6. has been convicted of (or received a deferred adjudication for) any an offense, other than an offense punishable by a fine only;
7. is under indictment or being formally charged with an offense, other than an offense punishable by a fine only; or
8. has intentionally misrepresented statements on the application for the appointment list.

 

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

 

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.

 

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.

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.

 

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.

 

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

 

 

In compliance with Articles 26.04(b)(3) of the Code of Criminal Procedure, this plan will ensure that “each indigent defendant in the county who is charged with a misdemeanor punishable by confinement or with a felony and who appears in court without counsel has an opportunity to confer with appointed counsel before the commencement of judicial proceedings.”

 

Appointment Procedures and Rules

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

Judge’s Review: The Judge appointing counsel for indigent defendants shall review the online application portal, 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.

 

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.

 

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.

 

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.

Misdemeanor Case:  The 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 Court at Law Judge shall immediately contact the attorney by phone, email, or in person and notify the attorney of the appointment and the last known location of the defendant.

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, email, or in person and notify the attorney of the appointment and the last known location of the defendant.

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, email, or in person and notify the attorney of the appointment and the last known location of the defendant.

 

 

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).

 

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.

 

 

Appointment of the Concho Valley Public Defender’s Office

In compliance with Articles 26.04(a) and (f) of the Code of Criminal Procedure, this plan provides for priority appointment to the Concho Valley Public Defender’s Office (CVPDO) such that the CVPDO shall receive up to 75% of all non-capital felony appointments, 85% of all misdemeanor appointments, and up to 100% of all appeals, within caseload limits for the PDO as established by their Sustainability Grant, or unless the Court makes a finding of good cause for appointing other counsel.  

The CVPDO may not accept an appointment under Article 26.04(f) if: (1) a conflict of interest exists that has not been waived by the client; (2) the public defender’s office has insufficient resources to provide adequate representation for the defendant; (3) the public defender’s office is incapable of providing representation for the defendant in accordance with the rules of professional conduct; (4) the acceptance of the appointment would violate the maximum allowable caseloads established at the public defender’s office; or (5) the public defendant’s office shows other good cause for not accepting the appointment.

Attorney Selection Process

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, which will include the CVPDO.  The Judge shall appoint the CVPDO when appropriate.  If appointment of the CVPDO is not appropriate, then 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.

  

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.

 

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.

 

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.

 

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.

 

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.

 

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, email, or in person and notify the attorneys of the appointment and the last known location of the defendant.

 

Compensation of Court Appointed Counsel (Other Than the CVPDO)

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].

 

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.

 

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.

 

2. 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.

 

2. 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.

 

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.

 

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.

 

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. 

 

The request for expenses must state, as applicable:

 

3. the type of investigation to be conducted or the type of expert retained;

 

4. 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

 

5. an itemized list of anticipated expenses for each investigation or each expert.

 

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:

 

6. state in writing the reasons for denial;

 

7. attach the denial to the confidential request; and

 

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

 

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 “Procedure Without Prior Court Approval” immediately below.

 

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. 

 

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).

LOCAL ADMINISTRATIVE JUDGES’ REPORTING COMPLIANCE

 

The Policy was adopted on October 24, 2022, and is effective beginning November 1, 2022.

 

 

PLAN DOCUMENTS

 

Form 1    Magistrate’s Admonitions Under CCP §15.17, Probable Cause Order & Order Setting Bond

Form 2     Affidavit of Indigence (And Request for or Rejection of Appointed Attorney)

Form 3    Attorney Fee Schedule

Form 4    Attorney Fee Request

Form 5    Attorney Application for Appointment in Criminal Cases – District Courts

Form 6    Attorney Application for Appointment in Misdemeanor Cases – TGC County Court at Law

Form 7    Attorney Application for Appointment in Misdemeanor Cases – TGC County Court at Law 2

 

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 (3/28/2024 2:55:31 PM) view
Coke Concho Irion Runnels Schleicher Sterling Tom Green District and County Court Public Defender Plan or Proposal.pdf (2/7/2023 9:53:00 AM) view