Brown and Mills Juvenile Board Plan
The Brown and Mills Counties Juvenile Board has established the following revised procedures to insure the fair and timely appointment of counsel for indigent juveniles in compliance with S.B. 7 (Family Code Section 51.101), passed by the Texas Legislature and signed into law in 2001. In Brown County the primary Juvenile Judge will be the County Judge so long as the County Judge is an attorney licensed to practice law in the State of Texas. In Mills County the primary Juvenile Judge will be the County Judge so long as the County Judge is an attorney licensed to practice law in the State of Texas.
Prompt Detention Hearings
A. A child taken into custody must either be brought to a juvenile processing office without unnecessary delay where they may not be detained for longer than six hours pursuant to §52.025, Family Code, or another disposition authorized by §52.02, Family Code, including referral to the office designated by the juvenile board as intake for the juvenile court. The intake officer shall process the child according the requirement of §53.01, Family Code, and shall also inform the child and the child’s parents of the right to appointed counsel if they are indigent and provide a form for the purpose of determining eligibility for appointment of counsel. If the child is not released by intake, then a Detention Hearing shall be held not later than the second working day after the child is taken into custody unless the child is detained on a Friday, Saturday or listed holiday in which case the detention hearing shall be held on the first working day after the child is taken into custody.
B. Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct.
C. The detention hearing may be conducted without the presence of the child’s parent(s) or other responsible adult(s), however, in these cases the court must immediately appoint counsel or a guardian ad litem to represent the child.
D. The court shall provide the attorney for the child access to all written matter to be considered by the Court in making the detention decision.
Indigence Determination Standards
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
ii. “Net household income” in the case of a child is the income of the child’s parents or other person determined responsible for the support of the child. Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); net self-employment income (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the person determined responsible for the support of the child has no income or lesser income.
iii. “Household” means all individuals who are actually dependent on the child’s parent(s) or person(s) deemed responsible for the support of the child, for financial support.
iv. “The cost of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.
B. Eligibility for Appointment
i. A child is presumed indigent if any of the following conditions or factors are present:
1. At the time of requesting appointed counsel, a child is presumed indigent if, the child’s parent(s) or other person(s) determined responsible for the support of the child is eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.
2. The net household income of the child’s parent(s) or other person(s) determined responsible for the support of the child does not exceed 125% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register;
3. The child’s parent(s) or other person(s) determined responsible for the support of the child is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought; or
4. The difference between the monthly net household income and reasonable necessary expenses of the child’s parent(s) or other person(s) determined responsible for the support of the child is less than $500.00. Reasonably necessary expenses should include but are not limited to: rent or mortgage, food/groceries, car payment, car insurance, health insurance, medical bills, and utilities (water, electric, gas, phone).
ii. The child who does not meet any of the standards above shall nevertheless be considered indigent if the child’s parent(s) or other person(s) responsible for the child is unable to retain private counsel without substantial hardship. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:
1. the nature of the charge(s);
2. anticipated complexity of the defense;
3. the estimated cost of obtaining competent private legal representation for the matter(s) charged;
4. the amount needed for the support of the child, the child’s parent(s)/person(s) responsible, and other dependents of the child’s parent(s)/person(s) responsible;
5. child’s parent(s’) income or the income of other person(s) determined responsible for the support of the child;
6. source of income;
7. assets and property owned by the child, child’s parent(s), or other person(s) determined responsible for support of the child;
8. outstanding obligations;
9. necessary expenses; and
10. the number and ages of any siblings of the child.
iii. Factors NOT to be considered in determining indigence:
1. The resources available to friends or relatives of the child, other than the child’s parent(s) or other person(s) deemed responsible for the child, may not be considered in determining whether the child is indigent.
2. Only the child's parent(s) or other person(s) responsible for the child and the child’s financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
C. Indigence Proceedings:
The appointing authority can require the child and the child’s parent(s) or other person(s) responsible for the child to respond to questions about the child’s household financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
ii. Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:
1. Determining if child is (or is not) indigent; or
2. Impeaching direct testimony of the child or the child’s parent(s)/person(s) responsible regarding the child’s indigence.
iii. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules.
iv. A child determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the child’s financial circumstances occurs.
1. A child’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of the case. The child’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:
a. Evidence of a material change in the child’s parent(s)/person(s) responsible and the child’s financial circumstances; or
b. Additional information regarding the child’s parent(s)/person(s) responsible and the child’s financial circumstances that shows that they do not meet any of the standards for indigence contained in these rules.
2. If a child previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.
v. If the court determines that a child’s parent(s) or other person(s) responsible for the child has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the child’s parent(s) or other person(s) responsible for the child to pay during the pendency of the charges or, if found to have engaged in delinquent conduct or CINS, as court costs the amount that it finds the child’s parent(s) or other person(s) responsible for the child is able to pay.
Minimum Attorney Qualifications
A. The Juvenile Board shall establish attorney
appointment lists for the following categories of offenses. Attorneys may apply
for and be placed on multiple lists. To be eligible for an appointment list, an
attorney must meet the following minimum requirements:
All attorneys on the
appointment list must ensure all information on their application is correct;
An attorney must be a
licensed practicing attorney and a member in good standing of the State Bar of
An attorney shall
complete a minimum of 6 hours of CLE in the area of juvenile law
and procedure each year. All attorneys on the appointment list must file a
certificate with the court administration office each year attesting to
completion of the required CLE or submit documentation showing that the
attorney is certified as a specialist in juvenile law. Continuing legal
education activity completed with-in a one year period immediately preceding an
attorney’s initial reporting period may be used to meet the educational
requirements for the initial year. Continuing legal education activity
completed during any reporting period in excess of the minimum of 6
hours for such period may be applied to the following period’s
requirement. The carryover provision applies to one year only;
Must be knowledgeable in
juvenile law and be aware of collateral consequences of a juvenile adjudication
May not have been the
recipient of any public disciplinary action by the State Bar of Texas or any
other attorney licensing authority of any state or the United States within the
last 5 years;
An attorney must
maintain an office capable of receiving email, fax, and telephone calls;
An attorney must have
the ability to produce typed motions and orders;
An attorney shall notify
the Juvenile Board promptly, in writing, of any matter that would disqualify
the attorney by law, regulation, rule, or under these guidelines from receiving
appointments to represent indigent defendants.
attorney shall submit by October 15th each year a statement that describes the
percentage of the attorney's practice time that was dedicated to work based on
appointments accepted in this county for adult criminal cases and juvenile
delinquency cases for the prior 12 months that begins on October 1 and ends on
September 30. The report must be submitted through the form prescribed by the Texas
Indigent Defense Commission to the court administration office in the county.
CINS Charges or Delinquent Conduct, if Commitment to TYC is not an
Meet the General
Must have a minimum
6 months of work experience in juvenile law;
Must have observed or
participated in at least:
a. 5 stipulated juvenile
b. 1 contested juvenile
c. 5 juvenile dispositions;
1 detention hearing; and
Participated in at least
2 criminal or juvenile trials.
Delinquent Conduct, and Commitment to TYC Without a Determinate Sentence
As an Authorized Disposition:
Have a minimum 1 year of
work experience in juvenile law;
Participated in 5
criminal or juvenile cases, of which at least 1 was tried to a jury verdict;
Determinate Sentence Proceedings have been Initiated; or Proceedings for
Discretionary Transfer to Criminal Court Have Been Initiated:
Have a minimum 2 years
of work experience in juvenile law;
Participated in 10
criminal or juvenile cases, of which at least 2 were tried to a jury
Tried at least 5
criminal or juvenile case as lead counsel.
B. Approval for Appointment
Lists - An attorney must be approved by a majority of the Juvenile Board for
each appointment list for which the attorney applies.
C. Removal from Appointment
List - The Juvenile Board will monitor attorney performance on a continuing
basis to assure the competency of attorneys on the list. An attorney may be
removed or suspended, as appropriate, from one or more appointment lists by a
majority vote of the judges.
D. Reinstatement to
An attorney who was
removed from the appointment list for non-completion of the required CLE hours
may be immediately reinstated upon providing proof that the attorney has
completed the required hours so long as the attorney otherwise meets the other
qualifications under this Plan.
An attorney who has been
removed from the appointment list for any other reason and who wishes to be
reinstated must apply through the original application process.
E. Duties of Appointed
Counsel - Appointed Counsel shall:
Notify the court within
72 hours of the receipt of appointment;
Make every reasonable
Contact the child by the
end of the first day after the date on which the attorney is appointed; and
Interview the child as
soon as practicable after the attorney is appointed;
Represent the child
The case is terminated;
The family retains an
The attorney is relieved
of his duties by the court or replaced by other counsel.
Investigate, either by
self or through an investigator, the facts of the case and be prepared to
present any factual defense that may be reasonably and arguably available to
Brief the law of the
case and be prepared to present any legal defense that may be reasonably and
arguably available to the child;
Be prepared to negotiate
with the prosecutor for the most favorable solution of the case as can be
achieved through a plea agreement;
Be prepared to try the
case to conclusion either with or without a jury;
Be prepared to file
post-trial motions, give notice of appeal and appeal the case pursuant to the
standards and requirements of the Texas Rules of Appellate Procedure;
communication and keep the child informed of the status of the case; and
Advise the child on all
matters involving the case and such collateral matters as may reasonably be
required to aid the client is making appropriate decisions about the case.
Perform the attorney’s
duty owed to the child in accordance with these procedures, the requirements of
the Code of Criminal Procedure and the Family Code, and applicable rules of
workload to allow for the provision of quality representation and the execution
of the responsibilities listed in these rules in every case.
Prompt Appointment of Counsel
A. Appointment of Counsel
for Children in Detention
i. Immediately upon
receiving notice from the prosecuting attorney, or notice from the 35th
District Chief Juvenile Probation Officer, of a proposed detention hearing, the
Court shall appoint counsel for the child, unless the Court is notified that
the child has employed counsel. Unless
the court finds that the appointment of counsel is not feasible due to exigent
circumstances, the court shall appoint counsel within a reasonable time before
the first detention hearing is held to represent the child at the hearing.
ii. Prior to the detention hearing the
court shall inform the parties of the child’s right to counsel and to appointed
counsel if they are indigent, and of the child’s right to remain silent as to
the alleged conduct.
iii. Prior to the initial detention hearing, the
court shall provide the attorney for the child with access to all written
matter to be considered by the court in making the detention decision.
iv. If there is no parent or other responsible adult
present, the court must appoint counsel or a guardian ad litem for the child.
v. If the juvenile is detained, the child has an
immediate right to counsel. If counsel has not already been appointed, the
court must either appoint counsel or direct the juvenile’s parent or other
responsible adult to retain an attorney promptly. The court may enforce an
order to retain counsel by appointing an attorney to represent the child and
requiring that the child’s parent or other responsible adult reimburse the
court for attorneys’ fees.
vi. Upon appointment, the court administrator shall
notify the appointed attorney by fax, e-mail, or personal contact of the
appointment and the scheduled hearing time and date.
vii. The appointed attorney shall make every
reasonable effort to contact a child in detention by the end of the first
working day after receiving the notice of appointment or to inform the court
that the appointment cannot be accepted. Contacting the child in
detention may be by personal visit (including contact during a detention
hearing), by phone, or by video teleconference. Contacting the court may be by
fax, email, phone or personal visit. A court-appointed
attorney shall contact the child, in one of the ways mentioned above, no less
than once every ten working days while the child remains in detention.
viii. An attorney appointed
for a detention hearing shall continue to represent the child until the case is
terminated, the family retains an attorney, or a new attorney is appointed by
the juvenile court. Release of the child from detention does not terminate the
Court-appointed attorneys shall make every effort to comply with
the Texas State Bar Code of Ethics for communication with a client.
B. Appointment of Counsel
for Children not Detained at Intake
i. If the child is released from detention and if a
petition to adjudicate or a motion to modify is filed, the juvenile court will
use the financial forms gathered at intake to make a determination of
indigence. If no financial information is available, the juvenile court shall
promptly summon the child’s parent/guardian/custodian to the court so that
financial information may be gathered for a determination of indigence.
ii. If the court makes a finding of indigence, the
court shall appoint an attorney on or before the fifth working day after:
The date a petition for
adjudication or discretionary transfer hearing has been served on the child; or
A motion to modify
disposition seeking commitment to TYC or placing in secure correctional
facility has been filed.
iii. If the family does not qualify for appointed
counsel or if the parent or guardian is not available, and the family fails to
provide an attorney, the juvenile court may appoint an attorney in any case in
which it deems representation necessary to protect the interests of the child.
iv. The prosecuting attorney/court clerk shall
notify the juvenile court upon the filing of and return of service of a motion
to modify or the return of service of a petition for adjudication or
Attorney Selection Process
A. The appointing authority will identify which of the appointment lists, discussed in the attorney qualifications section, is most appropriate based on the accusations against the child and will appoint the attorney whose name is first on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order. Good cause may include:
i. The child requesting counsel does not understand English, in which case the judge will appoint the lawyer whose name appears next in order and speaks the clients’ language, if one is available;
ii. The child has an attorney already appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter, unless the attorney is not on the list for the type of offense involved in the current case;
iii. An initial detention hearing is scheduled and the first attorney on the list is unavailable; or
iv. Other good cause exists for varying from the list.
B. Once appointed, an attorney’s name will be moved to the bottom of the appointment list. An attorney who is not appointed in the order in which the attorney’s name appears on the list shall remain next in order on the list.
C. Judicial Removal from Case:
i. The judge presiding over a case involving a child may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, the following:
1. Counsel’s failure to appear at a court hearing;
2. Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
3. Current information about the child and the charges against the child indicate that another qualified attorney is more appropriate for the child under these rules;
4. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
5. The child requests an attorney, other than trial counsel, for appeal; or
6. The child shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the child.
ii. Appointment of Replacement Counsel - Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.
Fee and Expense Payment Process
A. Court appointed counsel shall be compensated for all reasonable and appropriate services rendered in representing the accused. Compensation shall be reasonable for time and effort expended and will be in accordance with a fee schedule adopted and approved by the Juvenile Board.
B. Payment Process - No payment of attorney’s fees will be made other than in accordance with the rules set forth below.
i. An appointed attorney shall fill out and submit a fee voucher to the court for services rendered.
ii. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.
1. If a judge disapproves a request for compensation, the judge shall make written findings, stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.
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.
C. Payment of Expenses:
i. Court appointed counsel will be reimbursed for reasonable and necessary expenses incurred, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior approval shall be paid according to the procedures set forth below. Whenever possible prior court approval should be obtained before expenses are incurred.
ii. Procedure With Prior Court Approval:
1. Appointed Counsel may file with the trial court a pretrial ex parte confidential request for advance payment of investigative and expert expenses. The request for expenses must state the below, as applicable:
a. The type of investigation to be conducted or the type of expert to be retained;
b. Specific facts that suggest the investigation will result in admissible evidence or that the services of an expert are reasonably necessary to assist in the preparation of a potential defense; and
c. An itemized list of anticipated expenses for each investigation and/or each expert.
2. The court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:
a. State the reasons for the denial in writing;
b. Attach the denial to the confidential request; and
c. Submit the request and denial as a sealed exhibit to the record.
iii. Procedure Without Prior Court Approval:
1. Appointed counsel may incur investigative or expert expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred. Unreasonable or unnecessary expenses will not be approved.
Brown Mills Juvenile Board Attorney Fee Schedule.doc (11/25/2009 11:29:59 AM) view
Brown Mills Juvenile Board Attorney Fee Voucher.doc (11/25/2009 11:30:37 AM) view