Swisher District Court and County Court Plan
This plan to furnish counsel to those persons accused in Swisher County of criminal offenses classified as misdemeanors where the punishment includes possible confinement in jail or felonies is adopted by Order of the Judge of the County Court of Swisher County, Texas, and the Judges of the 64th and 242nd District Courts.
SECTION ONE– ARREST OF THE ACCUSED
1.1 At the time the accused appears at the jail for book-in, if the arrest has been made without a warrant, the officer in charge of book-in shall require the arresting officer to complete a probable cause for arrest affidavit in the form attached as Exhibit A. If the arresting officer fails or refuses to complete the affidavit, the officer in charge of book-in shall not accept the accused into custody.
1.2 Without unnecessary delay, but in no event later than twenty-four (24) hours after the time of the arrest, the officer in charge of book-in or his designee, shall take the accused before the magistrate on duty. Such officer shall notify such magistrate of the date and time the arrest was made, the charge against the accused, and whether the arrest was made with or without a warrant and furnish the magistrate with a copy of the probable cause affidavit, if applicable.
1.3 The magistrate on duty shall be the County Judge or the Justice of the Peace, Precinct 1, by agreement of those judges.
1.4 In the event both judges are going to be absent from the county for an overnight period during the same day or days, another magistrate shall be available during such time and one of such judges or their designee, shall advise the officer in charge of book-in of the name and contact number of the available magistrate.
SECTION TWO-MAGISTRATE’S HEARING
2.1 The magistrate shall conduct a hearing as soon as possible but not later than twenty-four (24) hours after the time of the arrest unless the accused has been released from custody before the end of such time.
2.2 If the arrest was made with a warrant or was for a felony charge, the magistrate shall conduct a hearing as soon as possible but not later than forty-eight (48) hours after the time of the arrest unless the accused has been released from custody before the end of such time.
2.3 If the hearing required by Section 2.1 or 2.2 has not been conducted within the time required, the accused shall be released from custody on bond as provided by Article 17.033, Texas Code of Criminal Procedure.
2.4 The hearing will be conducted in the accused’s presence at the jail or other place as the magistrate may select.
2.5 At such hearing, the magistrate shall first determine if the accused speaks and understands the English language. If the accused does not understand English, the magistrate shall, without unnecessary delay, secure an interpreter. If the accused is deaf, the magistrate shall, without unnecessary delay, secure a sign language interpreter.
2.6 The magistrate on duty will make a record of the hearing consisting of completed documents and shall:
a. Give the warnings required by Art. 15.17, Texas Code of Criminal Procedure, and advise the accused of the procedures for requesting appointment of counsel by reading to the accused and completing the form attached as Exhibit B;
b. If the accused requests that counsel be appointed, assist the accused in completing the indigence affidavit in the form attached as Exhibit C;
c. If the accused requests that counsel be appointed, conduct an examination of the accused and add any necessary information to the indigence affidavit; and
d. If the arrest was made without a warrant, review the probable cause affidavit.
2.7 If the magistrate determines that there is not probable cause to believe the accused committed the offense alleged, the magistrate shall order the accused released from custody forthwith.
2.8 If the magistrate determines that there is probable cause to believe the accused committed the offense alleged or if the arrest was made with a warrant, the magistrate shall set reasonable bail for the accused, if allowed by law.
2.9 The magistrate shall forward the originals of the documents created at the hearing to the clerk of the court having jurisdiction over the offense alleged.
2.10 If the accused has been released from custody before the hearing can be conducted, such hearing shall be conducted at the first court appearance of the accused or when adversarial criminal proceedings are initiated against the accused, whichever event occurs first.
2.11 If the accused requests that counsel be appointed, the magistrate conducting the hearing shall, within 24 hours of the time of the hearing, forward a copy of the request for counsel and the financial affidavit to the appointing authority.
2.12 For persons arrested on out-of-county warrants, the magistrate will ask the defendant if he/she would like to request appointed counsel. The magistrate will record the response, and if counsel is requested, the magistrate will provide the arrestee with the appropriate forms for requesting counsel. The magistrate will ensure assistance in completing the forms at the same time. The forms will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made.
Indigence Determination Standards
SECTION FOUR-STANDARDS FOR DETERMINING INDIGENCE
4.1 Each accused requesting the appointment of counsel shall fully complete, under oath, the indigence affidavit in the form attached as Exhibit C.
4.2 If such affidavit reflects a net income for the accused which is below the latest available Federal Poverty Guidelines as determined by the formula set out in Exhibit D, the accused shall be found to be indigent and counsel shall be appointed for the accused in accordance with the procedures set out herein.
THE STATE OF TEXAS Date:_____________________________
_____________________ Cause No.:_________________________
AFFIDAVIT OF FINANCIAL STATUS
The undersigned defendant, after being duly sworn, states under oath that the following information regarding his or her financial affairs is true and correct.
1. Martial status: Single_____Married and living together_____ Married but Separated_____
2. Dependent children living with you and their ages:
3. Your home address:___________________________________________________________ Street & No. City & State
4. If employed, name of employer:_________________________________________________
5. What is your gross (total before deductions) income?___________________ per month/week
6. If you and your spouse are living together, is your spouse employed?____________________
What is your spouse’s gross (total before deductions) income?_________________per month/week
7. If you are not employed, how are you supporting yourself?____________________________
8. What are your monthly expenses: Rent/mortgage_______________
Car payment_________________ Car insurance________________
Car gasoline_________________ ___________________________
Other expenses:______________ ___________________________
Under penalties of perjury, I swear or affirm that I have examined the above document and to the best of my knowledge and belief all information shown is true and correct. I am asking the court to appoint an attorney to represent me in this case because I do not have the financial ability to hire my own attorney. I understand that I may be ordered to make weekly payments to repay the county for such attorney’s fees.
Subscribed and sworn to before me this _____day of ____________________, 20_______.
Magistrate/ Notary Public
CURRENT FORMULA TO DETERMINE INDIGENCE
1. Gross monthly income, which includes spousal income if available to accused is determined.
2. Fair market value of property owned by the accused or the spouse of the accused which is reasonably available for ready sale is determined.
3. Necessary monthly expenses, which include rent or mortgage payment, food, auto payment, auto insurance, auto gasoline, utilities (water, electric, natural gas, and telephone), are determined.
4. Net monthly income is determined by subtracting necessary monthly expenses from the sum of gross monthly income and the fair market value of property reasonably available for
5. If net monthly income is less than the following amounts based on the number of persons in the household, the accused will be eligible for appointed counsel:
Number in family Monthly net income
1 $ 1215.00
Over 8 add
for each child 428.33
When the Federal Poverty Guidelines change, the above table shall be adjusted.
Minimum Attorney Qualifications
SECTION FIVE-LIST OF QUALIFIED COUNSEL
5.1 A list of qualified counsel shall be maintained by the appointing authority and shall be available for inspection by the public upon reasonable request.
5.2 Such list shall be graduated according to the following categories:
a. Category A- first and second degree felonies, 3g offenses, and non-death penalty capital cases.
b. Category B-third degree and state jail felonies.
c. Category C-Motions to revoke and motions to adjudicate.
d. Category D- appeals or application for writs.
e. Category E- Misdemeanors
5.3 Counsel for capital felonies in which the death penalty is sought by the state, shall be appointed as provided in Art. 26.052, Texas Code of Criminal Procedure.
5.4 To be placed on the misdemeanor lists, counsel must be approved by the County Judge. To be placed on the felony lists, counsel must be approved by both District Judges.
SECTION SIX-STANDARDS FOR COUNSEL
6.1 To be eligible to be included on the list, counsel must submit an application to the appointing authority in the form attached as Exhibit E, and meet the following minimum requirements:
a. Be licensed and in good standing to practice law in the State of Texas;
b. Have exhibited proficiency and commitment to providing quality representation;
c. Demonstrated professionalism and reliability;
d. Have received credit for six (6) hours of continuing legal education pertaining to criminal law at the time of application and maintain such credit each twelve month period thereafter or be certified in criminal law by the Texas Board of Legal Specialization and maintain such certification thereafter;
e. Have a fax machine working at counsel’s office from 8 AM through 5 PM, Monday through Friday each week, except for holidays, and except for those days where counsel notifies the appointing authority that counsel will not be available to take appointments, e.g. where counsel cannot be reached by telephone or where counsel will not be able to contact the accused;
f. Agree to make every reasonable effort to contact the accused not later than the end of the first working day after the date on which counsel was appointed and to interview the accused as soon as practicable thereafter; and
g. Represent the accused until charges are dismissed, the accused is acquitted, appeals are exhausted, counsel is relieved of duty by the court, or counsel is replaced by other counsel.
h. An attorney shall submit by October 15th each year a statement that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in this county for adult criminal cases and juvenile 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 (local administrative district court judge) in the county.
6.2 In addition to the requirements in 6.1 above, counsel shall meet the following additional requirements for the following categories:
a. Category A- 5 years of practice in criminal law or have tried as lead counsel five felony cases to verdict.
b. Category B- 3 years of practice in criminal law or have tried as lead counsel three felony cases to verdict.
c. Category C- 2 years of practice in criminal law or have served as lead counsel or associate counsel in three felony cases.
d. Category D- The requirements set out herein for the level of case being appealed or the filing of at least one brief or writ application per category, i. e. three for category A cases, two for category B cases, one for category C and E cases.
e. Category E- 1 year of practice in criminal law or have served as lead counsel or associate counsel in three criminal cases.
6.3 Counsel applying to be included on the list but not meeting the minimum requirements, may be appointed as counsel to assist other counsel.
6.4 Counsel may submit an application to be included on the list or for re-consideration of counsel’s qualifications at any time.
Prompt Appointment of Counsel
SECTION THREE-APPOINTING AUTHORITY
3.1 If the accused requests that counsel be appointed, the magistrate shall within twenty-four (24) hours of the time of the hearing, forward a copy of the request for counsel and the indigence affidavit to the appointing authority.
3.2 The appointing authority for misdemeanors shall be the county judge and the appointing authority for felonies shall be the district judge whose grand jury is convened at the time.
3.3 In the event any appointing authority is unavailable to timely consider requests for appointed counsel, the County Judge, either District Judge, or their designees may act for any appointing authority.
3.4 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 judge for misdemeanors and to the administrative judge for felonies. The court will rule on all requests for counsel submitted in this manner.
3.5 The appointing authority shall review the indigence affidavit not later than three working days after its receipt. Persons arrested in other counties on local warrants must be appointed counsel within 1 working day of receipt of the request in counties with a population of 250,000 or more and within 3 working days of receipt of the request in counties under 250,000.
3.6 If the accused is found to be indigent, the appointing authority shall, on the same day, appoint qualified counsel from the list of counsel described in Section Five and shall forward, by personal delivery, fax, or mail, a true copy of the order appointing counsel to the accused, defense counsel, and, if known, the judge of the court with jurisdiction of the offense. The original of such Order shall be delivered to the Clerk of the Court with jurisdiction of the offense.
3.7 If the accused is found not to be indigent, the appointing authority shall, on the same day, notify the accused of such determination, the denial of the request, and deliver the Order denying the request to the Clerk of the Court with jurisdiction of the offense.
3.8 The accused, counsel for the accused, or counsel for the State may move that the appointing authority reconsider the determination of indigence if there has been a material change in the financial circumstances of the accused since the determination sought to be reconsidered was made.
3.9 If the judge with jurisdiction of the offense determines that an accused has financial resources that enable the accused to offset, in whole or in part, the costs of the services of appointed counsel, including expenses, the judge with jurisdiction of the offense may order the accused to pay interim payments to Swisher County in an amount that such judge finds the accused is able to pay.
3.10 If the accused has been released from custody before the hearing can be conducted, such hearing shall be conducted at the first court appearance of the accused or when adversarial criminal proceedings are initiated against the accused, whichever event occurs first.
3.11 The judges adopting this plan and their successors in office shall ensure that each indigent accused who appears in court without counsel shall be advised of the right to counsel and provided an explanation of the procedure for requesting court appointed counsel.
3.12 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.
3.13 Defendants Appearing Without Counsel - If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement:
a. 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.
b. 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 appointing authority 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 appointed counsel; or
(2) Waived or has waived the opportunity to retain private counsel.
c. The attorney representing the state may not:
(1) Initiate or encourage an attempt to obtain from the defendant a waiver of the right to counsel; or
(2) Communicate with a defendant who has requested the appointment of counsel, unless the appointing authority has denied the request and subsequent to the denial, the defendant:
(a) Has been given a reasonable opportunity to retain counsel; or
(b) Waives or has waived the opportunity to retain private counsel.
3.14 Waiver of the Right to Counsel
a. A defendant may voluntarily and intelligently waive the right to counsel.
b. A waiver obtained in violation of section IV.B above is presumed invalid.
c. If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation. If the court determines that the waiver is voluntarily and intelligently waived, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings.
“I have been advised this ___ day of ____, 2___, by the (name of court) Court of my right to representation by counsel in the case pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel. (signature of defendant)”
d. A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel. If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.
Attorney Selection Process
6.5 Counsel shall be approved for inclusion on the list in a particular category or categories by majority vote of the judges of the county and district courts.
6.6 Counsel may be removed from the list or from a particular category or categories by majority vote of the judges of the county and district courts if, after a hearing, it is found that counsel does not meet or has not maintained the requirements as set out above, has repeatedly failed to contact or interview accused persons as required, or has submitted a claim for legal services which were not performed.
6.7 Counsel may have their name removed from the list at any time by written request made to the appointing authority.
6.8 The appointing authority shall appoint qualified counsel to cases in the respective categories using a system of rotation, i.e. appointments shall be made for cases in the order in which such cases reach the appointing authority and counsel whose name next appears on the list shall be appointed unless the appointing authority makes a finding of good cause stated on the record for appointing counsel out of order. Counsel who is not appointed in the order in which the names appear on the list, shall remain next in order on the list.
6.9 If the accused does not speak and understand the English language or is deaf, the appointing authority shall make an effort to appoint counsel who is capable of communicating with the accused. Such a circumstance shall be good cause for appointing counsel out of order.
6.10 Counsel shall be listed in alphabetical order by last name.
6.11 The judges adopting this plan and their successors in office shall ensure that each indigent accused who appears in court without counsel has an opportunity to confer with counsel before the commencement of judicial proceedings.
6.12 Capital Felony Cases
i. 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.
1. 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.
2. 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.
ii. The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if:
1. A conflict of interest exists;
2. The Office has insufficient resources to provide adequate representation;
3. The Office is incapable of providing representation in accordance with the rules of professional conduct;
4. Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or
5. The Office shows other good cause for refusing appointment.
iii. The Appointing Authority shall immediately contact the attorneys appointed by phone, fax, e-mail or in person and notify the attorneys of the appointment and the last known location of the defendant.
SECTION SEVEN- REMOVAL OR REPLACEMENT OF COUNSEL
7.1 The appointing authority or the judge presiding over the proceedings may, without unnecessary delay, remove or replace counsel who has been appointed under this plan if:
a. The accused is subsequently charged with an offense different from the offense initially charged and counsel does not meet the minimum qualifications for the new offense;
b. Counsel who has been appointed fails to meet or maintain the required qualifications;
c. The accused desires to appeal; or
d. Other good cause is found and stated on the record.
7.2 In the event the judge presiding over the proceedings determines that counsel should be replaced, such judge may remove the counsel appointed and appoint replacement counsel.
Fee and Expense Payment Process
SECTION EIGHT- COMPENSATION OF COUNSEL
8.1 Counsel shall be compensated according to the fee schedule adopted by the judges of the county and district courts in effect at the time of the appointment.
8.2 The fee schedule in effect at the time of the adoption of this plan is attached as Exhibit F.
8.3 At the conclusion of the appointment as provided by Article 26.04 (j) (2), Texas Code of Criminal Procedure, counsel shall submit to the judge presiding over the proceedings a request for payment in accordance with such fee schedule in the form as attached as Exhibit G.
8.4 The judge presiding over the proceedings shall review and approve the request unless the request exceeds a reasonable fee based on the time and labor required, the complexity of the case, and the experience and ability of counsel.
8.5 In the event the judge presiding over the proceedings disapproves the requested compensation, such judge shall make written findings stating the amount approved and all reasons for approving an amount different from the requested amount.
8.6 Counsel whose request for compensation is disapproved in the amount requested may appeal the disapproval by filing a motion with the presiding judge of the administrative judicial region within ten days of the date of disapproval. The presiding judge shall then review the request and disapproval and determine, by hearing or otherwise, the appropriate amount of compensation.
8.7. After compensation is approved, either by the judge presiding over the proceedings or the presiding judge of the administrative judicial region, the commissioner’s court shall pay the amount approved to appointed counsel not later than 45 days after the request for payment was first submitted.
SECTION NINE-APPOINTMENT AND COMPENSATION OF INVESTIGATORS AND EXPERTS
9.1 Counsel requesting the appointment of investigators or experts should request prior approval of the same by filing a motion in the court in which the case is pending stating the need for such assistance and the estimated expense.
9.2 Expenses for investigators or experts incurred with prior court approval shall be reimbursed as provided in the order granting approval.
9.3 Expenses for investigators or experts incurred without prior court approval shall be reimbursed only if necessarily and reasonably incurred.
Swisher District and County Court Affidavit of Indigence.rtf (11/19/2009 11:18:25 AM) view
Swisher District and County Court Attorney Application for Appointment.rtf (11/19/2009 11:18:07 AM) view
Swisher District and County Court Attorney Fee Schedule.rtf (10/10/2019 1:58:18 PM) view
Swisher District and County Court Attorney Fee Voucher.rtf (11/19/2009 11:18:44 AM) view
Swisher District and County Court Magistrates Warning Form.rtf (11/19/2009 11:18:33 AM) view