Dawson, Gaines, Garza and Lynn District Court Plan
In accordance with the Texas Fair Defense Act, the 106th Judicial District Court in Dawson, Gaines, Garza and Lynn Counties adopts the following plan to provide for the appointment of counsel to represent indigent defendants.
This is a separate plan for the 106th Judicial District Court in Dawson, Gaines, Garza and Lynn Counties in addition to the plans filed by each of these counties pertaining to the procedures used in the county courts in those counties.
The Sheriffs of each of the counties in the 106th Judicial District shall ensure that within 48 hours after arrest, every arrestee shall be brought before a magistrate for a magistrate to set bail and inform the accused person of his/her rights, including right to court appointed counsel if indigent.
The designated judge in each of the counties in the 106th Judicial District shall establish a plan to hold a magistrate’s hearing each day.
At the magistrate’s hearing the responsible judge shall comply with the Texas Fair Defense Act by:
admonishing the accused of the magistrate and Miranda warnings as provided by law;
notification of indigent representation rights;
making of record of the magistrate warnings and right to court appointed counsel for indigent accused persons;
notification of right to counsel and right to court appointed counsel if indigent;
inquiry as to whether the defendant is requesting court appointed counsel;
provide defendant with a "Request for Appointment of Counsel and Determination of Indigence" and reasonable assistance in completing the form; and immediate referral of applications for appointed counsel to the District Judge for appointment of counsel.
The magistrate shall, within 24 hours, transmit the felony defendant’s "Request for Appointment of Counsel and Determination of Indigence" to the District Judge.
For a person arrested on an out-of-county warrant, the magistrate must ask if the person wants to request counsel, inform the person of the procedures for requesting counsel, and ensure the person is provided reasonable assistance in completing the necessary forms for requesting counsel in the county issuing the warrant.
Requests for counsel made by persons arrested on out-of-county warrants must be transmitted to the appointing authority of the county issuing the warrant within 24 hours of the request being made.
Indigence Determination Standards
Procedures and Financial Standards for Determining Indigence Status
At the magistrate’s hearing, each defendant shall be provided an opportunity to request court appointed counsel, if indigent. Each requesting defendant shall complete and file a sworn "Request for Appointment of Counsel and Determination of Indigence", in a form approved by the District Judge. The magistrate will ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided. If the defendant does not speak and/or understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31.
If a defendant wishes to request counsel prior to the initial appearance the forms required to request counsel may be obtained from the District Court Coordinator or the County Jail. The defendant may submit these forms to the District Judge's office or to the County Jail. The Court will rule on all requests for counsel submitted in this manner.
The District Judge shall review the "Request for Appointment of Counsel and Determination of Indigence" and such other information bearing on the financial status of the defendant and make a determination of indigence status and appoint counsel where required by law within three working days after receiving the request for court appointed counsel.
The District Judge shall consider the following standards for determining indigence and such other reasonable factors as the court finds to have a bearing on the financial inability of a defendant to retain counsel:
Defendant’s income from any and all sources;
Sources of the defendant’s income;
Assets of the defendant;
Property owned by the defendant, or in which the defendant has an interest;
Outstanding obligations of the defendant;
Necessary expenses of the defendant;
The number and age of the defendant’s legal dependents;
Spousal income available to the defendant; and
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.
Defendants receiving assistance from any of the following sources shall be considered indigent:
Temporary assistance for needy families;
Public housing; or
Supplemental security income.
Defendants with annual average income meeting the following maximum requirements shall be considered indigent: up to and including 200% of the Federal poverty guidelines as published in the Federal Register.
The Judge may also appoint counsel in the interest of justice.
Minimum Attorney Qualifications
Court appointed counsel shall make every reasonable effort to contact the defendant not later than the end of the first working day after appointment and to interview the defendant as soon as practicable.
Court appointed counsel shall comply with all laws, rules, procedures, and ethical provisions for providing reasonable assistance of counsel to the defendant.
Court appointed counsel shall maintain a high standard of ethical conduct and always be completely candid with the trial court.
Court appointed counsel shall timely inform the defendant of matters relating to the preparation, trial, and disposition of the case; appellate and writ rights, deadlines, and procedures for proper processing, and such other matters as necessary to provide reasonable assistance of counsel.
Court appointed counsel shall represent a defendant until the defendant is acquitted, appeals are exhausted, or the court, after entering a finding of good cause on the record, relieves the attorney and/or replaces the attorney with other counsel.
Court appointed counsel shall submit a request for payment for services performed, itemizing the dates services were rendered, a brief description of the services, and the number of hours expended to perform the services, and except for an attorney serving under an Indigent Defense Contract, no payment shall be made until such request is submitted.
Court appointed counsel shall meet the following standards, said attorney shall:
Be a member in good standing with the State Bar of Texas;
Professionally perform duties and responsibilities of a licensed attorney for the State of Texas; and
Complete annually such Continuing Legal Education programs as required by the Texas Judicial Council and requirements of the 106th Judicial District for attorneys representing indigent accused persons, which shall include at least ten (10) hours of Continuing Legal Education in handling criminal cases.
The District Judge may replace an attorney if the appointed attorney does not make an effort to contact the defendant by the end of the first working day or does not interview the defendant as soon as possible, or may sanction said attorney for violation of those provisions. At any time, at the judge’s discretion, the District Judge may replace an appointed attorney for incompetency or in the interest of justice.
Beginning in 2014 and as long as required by law, not later than October 15 of each year, court appointed counsel shall submit to each county in the 106th District a report giving the percentage of the attorney's practice time that was dedicated to appointed adult felony criminal work in that county. The report shall be on a form prescribed by the Texas Indigent Defense Commission.
The District Judge may remove an attorney from consideration for appointments if the attorney intentionally or repeatedly does not fulfill the duties required by law, rules, local rules, or provisions for providing reasonable assistance of counsel or complying with the requirements for inclusion on the approved list for counsel for indigent accused persons.
The District Judge shall annually review and reform the list of eligible court appointed counsel and cause the list to be posted and made available to the public upon request.
Prompt Appointment of Counsel
Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel. Working day means Monday through Friday, excluding official holidays. Counsel must be appointed whether or not a case has been filed in the trial court.
Persons arrested in other counties on local warrants must be appointed counsel within 3 working days of receipt of the request. Persons arrested on out-of-county warrants must be appointed counsel if the person has not been transferred or released to the custody of the county issuing the warrant before the 11th day after the date of the arrest.
Attorney Selection Process
The District Judge shall prepare and distribute an "Application/Affidavit" to licensed attorneys practicing in the district who have indicated a desire to be considered for appointment as counsel to indigent accused persons.
Each attorney requesting such appointments shall complete and return the "Application/Affidavit" to the 106th Judicial District Court, P.O. Box 1268, Lamesa, Texas 79331.
The Judge shall approve and post a list of the names of attorneys approved to represent indigent accused persons in the 106th Judicial District Court.
Non-Capital Felony Appointment Procedures and Rules
The District Judge, upon any finding of indigence and request for court appointed counsel, shall sign an "Order Appointing Attorney" and file same with the District Clerk. The staff of the District Judge shall immediately deliver a copy of the "Order Appointing Attorney," by fax, mail, electronic means, or in person, to the attorney, the defendant, and the District Attorney.
Capital Felony Appointment Procedures and Rules
The District Judge, upon any finding of indigence and request for court appointed counsel, shall sign an "Order Appointing Attorney" from the approved counsel for capital trials list in accordance with Art. 26.052 of the Code of Criminal Procedures, and file same with the District Clerk. The staff of the District Judge shall immediately deliver a copy of the "Order Appointing Attorney," by fax, mail, electronic means, or in person, to the attorney, the defendant, and the District Attorney.
Alternative Appointment Program
Due to the rural nature of the counties in the 106th Judicial District, the limited number of attorneys available for indigent appointments, and the necessity for appointing attorneys from other counties, the Court shall use an Alternative Appointment Program, as allowed by the Texas Fair Defense Act, structured to allocate appointments among competent independent legal counsel, one or more of whom may be under a contract defender program.
The Court shall maintain a list of attorneys who have specifically requested to be placed on the appointment list, have completed the "Application/Affidavit", and have demonstrated that they meet the requirement for appointments. Attorneys on the list shall be evaluated periodically to assess the quality of legal representation provided to defendants.
The Commissioners Courts of Dawson, Gaines, Garza and Lynn Counties may enter into a contract defender program for the provision of legal services to indigent defendants. Any such indigent defense contract shall be designed to ensure quality legal representation and shall provide for counsel to have access to all the resources necessary to properly defend his client and further provide for the continuity of the defender’s services beyond the contract period to ensure the continuity of representation.
Annually, the District Judge will notify each attorney on the appointment list of the requirements to be considered for contracting with the counties and setting a deadline for submission of a proposal. Once all proposals have been received, the District Judge will decide who will be recommended to the Commissioners Courts. The counties cannot contract with any attorney for appointments in the District Court if not approved by the District Judge for such contract.
If the contracting attorney has a conflict with the representation of a particular defendant, or when otherwise necessary to guarantee the integrity of the relationship between the attorney and client, the appointment shall be made reasonably and impartially from among other qualified attorneys on the appointment list. Among the factors to consider for such appointments will be the attorneys who come closest to meeting the qualifications for that particular case, the distance required to be traveled by the attorney to represent that defendant, any other defendants the attorney may represent in that county to provide efficiency in travel requirements, and whether the defendant has any language limitations to be considered to allow effective communications with the attorney.
Fee and Expense Payment Process
Court appointed counsel shall receive such reasonable compensation as established by a fee schedule filed with the Commissioners Courts of Dawson, Gaines, Garza and Lynn Counties. The fee schedule shall comply with the Texas Code of Criminal Procedure Article 26.05 and all applicable law.
If the presiding judge disapproves the requested amount, the Judge shall make written findings stating the amount of payment approved and the reason for approving an amount different from the requested amount. The attorney whose request for payment has been disapproved may, by written motion, file an appeal with the Presiding Judge of the Administrative Region.
Appointment of Investigators and Experts for Indigent Defense and Procedure for 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 procedures set forth below. 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 pretrial ex parte confidential request for advance payment of investigative and expert expenses. The request for expenses must state, as applicable:
The type of investigation to be conducted or the type of expert to be retained;
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
an itemized list of anticipated expenses for each investigation or each expert.
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:
state the reasons for the denial in writing;
attach the denial to the confidential request; and
submit the request and denial as a sealed exhibit to the record.
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.
Dawson Gaines Garza Lynn District Court Affidavit of Indigence.wpd (11/17/2009 11:17:10 AM) view
Dawson Gaines Garza Lynn District Court Annual Attorney Update Letter.pdf (10/16/2017 1:34:34 PM) view
Dawson Gaines Garza Lynn District Court Attorney Application for Appointment.wpd (11/17/2009 12:03:17 PM) view
Dawson Gaines Garza Lynn District Court Attorney Fee Schedule.wpd (11/17/2009 11:20:10 AM) view
Dawson Gaines Garza Lynn District Court Attorney Fee Voucher.wpd (11/17/2009 11:10:52 AM) view
Dawson Gaines Garza Lynn District Court Contracts for Indigent Defense Services FY2018.pdf (10/17/2017 5:25:49 PM) view
Dawson Gaines Garza Lynn District Court Magistrates Warning Form.wpd (11/17/2009 11:10:14 AM) view
Dawson Gaines Garza Lynn District Court Order to Pay Court Appointed Counsel.wpd (11/17/2009 11:28:37 AM) view