Swisher Juvenile Board Plan
Preamble
11/17/2009

This plan to furnish counsel to juveniles whose parent(s) or guardian(s) are indigent is adopted by Resolution of the Juvenile Probation Board of Castro and Swisher Counties, Texas.

Prompt Detention Hearings
10/31/2019

SECTION ONE– COUNSEL FOR A JUVENILE IN CUSTODY WHERE DETENTION IS REQUESTED

           

            1.1  If the juvenile is in detention or if a request for detention is to be heard and no parent or guardian of the child is present for the detention hearing, the probation officer assigned to the juvenile shall immediately notify the appointing authority named herein who shall immediately appoint counsel for the juvenile as provided in Section 8.8 and notify the probation officer, counsel appointed, the clerk and the judge of the court concerned.  Upon such notification, the judge presiding over the proceedings shall set the detention hearing and notify all counsel.

 

            1.2.   If the juvenile is in detention or if a request for detention is to be heard and a parent or guardian of the juvenile is present for the detention hearing, the probation officer assigned to the juvenile shall follow the procedures set out in Section Four.

 

            1.3.  If the juvenile is released from detention prior to a hearing, no immediate appointment of counsel is necessary.

 

            1.4 If the juvenile appears for the detention hearing with retained counsel, Sections 1.1 and 1.2 shall not be applicable.

 

             1.5  Except as provided in 1.6 and 1.7 below, if the juvenile is not released under Section 53.02, Texas Family Code, a detention hearing without a jury shall be held promptly, but not later than the second working day after the juvenile is taken into custody; provided, however, that when a juvenile is detained on a Friday or Saturday, then a detention hearing shall be held on the first working day after the juvenile is taken into custody.

 

            1.6  If a juvenile is detained in a county jail or other facility as provided by Section 51.12 l, Texas Family Code, and the juvenile is not released under Section 53.02, Texas Family Code, a detention hearing without a jury shall be held promptly, but not later than the 24th hour, excluding weekends and holidays, after the time the juvenile is taken into custody.

 

           1.7  A detention hearing for a status offender or nonoffender as defined in Section 51.02, Texas Family Code, who has not been released administratively under Section 53.02, Texas Family Code, shall be held before the 24th hour after the time the juvenile arrived at a detention facility, excluding hours of a weekend or holiday.

 

 

SECTION FOUR-NOTICE CONCERNING RIGHT TO REQUEST APPOINTED COUNSEL

 

            4.1  A probation officer required to give notice regarding the juvenile’s right to request court appointed counsel shall make a record of the giving of such notice by completing the documents described in this section and shall:

 

a.  Determine if any responsible person in the household of the juvenile speaks and understands the English language;

 

b.  If no responsible person in the household of the juvenile speaks or understands English, obtain an interpreter to interpret all documents into a language the juvenile and/or parent(s) or guardian(s) understand;

             

c. Advise the parent(s) or guardian(s) of the juvenile of the procedures for requesting appointment of counsel by reading or mailing to the parent(s) or guardian(s) the notice regarding counsel in the form as attached as Exhibit A, the instructions in the form as attached as Exhibit B, a request for appointed counsel in the form as attached as Exhibit C, and an indigence affidavit in the form as attached as Exhibit D;

 

d.  If the parent(s) or guardian(s) return the request asking that counsel be appointed, shall, if necessary, assist the parent(s) or guardian(s) in completing the indigence affidavit; and

 

e. If the parent(s) or guardian(s) have requested that counsel be appointed, conduct an examination of the parent(s) or guardian(s) as soon as possible, and add or correct any necessary information in the indigence affidavit.

 

            4.2 If the parent(s) or guardian(s) return the request and affidavit asking that counsel be appointed, the probation officer assigned to the juvenile shall immediately forward true copies of the same to the appointing authority who shall follow the procedures in Section 5. 3 or 5.4 as applicable.

 

 

SECTION FIVE-APPOINTING AUTHORITY

 

            5.1 The appointing authority shall be the county judge of Swisher County, Texas.

 

            5.2  The appointing authority shall review any request for counsel and indigence affidavit:

 

            a. immediately if a detention hearing is to be conducted;

 

b. not later than five days after a petition for adjudication or certification has been served on the juvenile; or

           

c. not later than five days after a motion to modify disposition that requests commitment to TYC or a secure facility has been filed.

 

            5.3 Upon review, if the parent(s) or guardian(s) of the juvenile are found to be indigent, and counsel has not been previously appointed, the appointing authority shall, on the same day, appoint qualified counsel as provided in Section 8.8, and shall forward, by personal delivery, or by fax if available, or by mail if fax is not available, a true copy of the order appointing counsel to the parent(s) or guardian(s), appointed counsel, counsel for the petitioner, the clerk and the judge of the court concerned.  The appointing authority shall also forward to appointed counsel a copy of the request for counsel unless a detention hearing is to be held on the same day.

 

            5.4  If the parent(s) or guardian(s) of the juvenile are found not to be indigent, the appointing authority shall, on the same day:

 

a.  notify the parent(s) or guardian(s) by the most expedient means reasonably available of such determination and of the denial of the request; and

 

            b.  order the parent(s) or guardian(s) to employ counsel of their own choosing; or

 

c.  appoint counsel (unless counsel has been previously appointed under Section 1.1).  If counsel is appointed as provided in this section, the appointing authority shall forward a copy of the order appointing counsel to the parent(s) or guardian(s), appointed counsel, counsel for the petitioner, the clerk and the judge of the court concerned.  The appointing authority shall also forward a copy of the request for counsel to appointed counsel.  

 

            5.5 The parent(s) or guardian(s), counsel for the juvenile, or counsel for the petitioner, may move the appointing authority to reconsider the determination of indigence if there has been a material change in the financial circumstances of the parent(s) or guardian(s) since the determination sought to be reconsidered was made.

 

            5.6  If the appointing authority or judge presiding determines that the parent(s) or guardian(s) have financial resources that enable them to offset, in whole or in part, the costs of the services of appointed counsel, including expenses, the appointing authority or the judge presiding may order the parent(s) or guardian(s) to pay interim payments to Swisher County in an amount that the appointing authority or the judge presiding finds the parent(s) or guardian(s) are able to pay.

 

Indigence Determination Standards
9/23/2015

SECTION SIX-STANDARDS FOR DETERMINING INDIGENCE

 

            6.1 The parent(s) or guardian(s) of the juvenile requesting the appointment of counsel shall fully complete, under oath, the indigence affidavit in the form as attached as Exhibit D.

 

            6.2 If such affidavit reflects a net income for the parent(s) or guardian(s) which is below the latest available Federal Poverty Guidelines for one person as determined by the formula set out in Exhibit E, the parent(s) or guardian(s) shall be found to be indigent and counsel shall be appointed for the juvenile in accordance with the procedures set out in this plan.

EXHIBIT D

 

IN THE INTEREST OF                                                          Date:_____________________________

 

_____________________                                                      Charge:___________________________

 

A CHILD

 

AFFIDAVIT OF FINANCIAL STATUS

 

            The undersigned parent(s) or guardian(s) of the juvenile named above, after being duly sworn, state(s) under oath that the following information regarding financial affairs is true and correct.

 

1.  Martial status: Single_____Married and living together_____ Married but Separated_____

 

     Husband or wife’s name:____________________________________________________         

2.  Dependent children living with you and their ages:

     ___________________________________________________________________________

     Other dependents living with you and their relationship to you:

     ___________________________________________________________________________

 

3.  Your home address:___________________________________________________________                            Street & No.                                             City & State

 

4.  If employed, name of employer:_________________________________________________

     Address of employer:_________________________________________________________

     How long have you been employed by your present employer?_________________________

     What is your job?_____________________________________________________________

     What is your gross (total before deductions) income per month/week?___________________

 

5.  If you and your spouse are living together, is your spouse employed?____________________

 

     If your spouse is employed, what is your spouse’s  gross (total before deductions) income per

month/week?___________________________________________________________________

 

6.  If you are not employed, how are you supporting yourself?____________________________

 

7.  Do you own any land? _______ If so, what is the land worth?__________________________

     Where is the land located?______________________________________________________

 

8.  Do you own a car, and if so, what kind of car?______________________________________

     What is the fair market value of the car?___________________________________________

     Do you owe money on the car, and if so, how much?_________________________________    

9.  What other assets/property do you own?___________________________________________

______________________________________________________________________________

     What is the fair market value of the property?______________________________________

______________________________________________________________________________

     Do you owe any debts on the property, and if so, how much?__________________________

_____________________________________________________________________________

 

10.  What are your monthly expenses:               Rent/mortgage_______________

Food_______________________                  Utilities:

Car payment_________________                  Water________________

Car insurance________________                   Electric_______________

Car gasoline__________________                 Natural gas____________

                                                                        Telephone_____________

                                                                        Other expenses:

                                                                        _____________________________

                                                                        _____________________________

 

                                                            Total expenses:_______________________

 

11.  Are you able to borrow money for attorney’s fees?_______________________

 

12.  If so, from whom can you borrow?___________________________________

 

13.  How much can you borrow?________________________________________

 

            Under penalties of perjury, the undersigned swears or affirms that the undersigned has examined the above document and to the best of the undersigned’s knowledge and belief all information shown is true and correct.  The undersigned understands that this affidavit is made because the undersigned is asking the court to appoint an attorney to represent the juvenile named above because the undersigned does not have the financial ability to hire an attorney for the juvenile.  The undersigned understands that the undersigned may be ordered to make weekly payments to repay the county for such attorney’s fees.

 

                                                                        ____________________________________

                                                                        Parent/Guardian

 

Subscribed and sworn to before me this _____day of ____________________, 20_______.

 

                                                                        _____________________________________

                                                                        Magistrate/ Notary Public

 

 

 

 

EXHIBIT E

 

CURRENT FORMULA TO DETERMINE INDIGENCE

                                               

1.  Gross monthly income, which includes spousal income if available to the parent or guardian is determined.

 

2.  Fair market value of property owned by the parent or guardian or the spouse of the parent or guardian 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

ready sale.

 

           5.  If net monthly income is less than the following amounts based on the number of persons in the household, the parent or guardian will be eligible for appointed counsel:

 

                      Number in family                          Monthly net income

 

                                  1                                                      $ 980.83

 

                                  2                                                       1327.50

 

                                  3                                                       1674.17

 

                                  4                                                       2020.83

 

                                  5                                                       2367.50

 

                                  6                                                       2714.17

 

                                  7                                                       3060.83

 

                                 8                                                       3407.50

 

                               Over 8 add

                               for each child                                         346.67

 

When the Federal Poverty Guidelines change, the above table shall be adjusted.

 

 

Minimum Attorney Qualifications
10/31/2013

SECTION SEVEN-LIST OF QUALIFIED COUNSEL

 

            7.1 One list of qualified counsel shall be maintained by the appointing authority and shall be available for inspection by the public upon reasonable request.

 

            7.2 Such list shall be graduated according to the following categories:

           

a.  Category A- cases where discretionary transfer to criminal court is sought.

 

b. Category B- cases where a determinate sentence is sought.

 

c.  Category C- cases alleging delinquent conduct where commitment to TYC is possible.

 

d.  Category D- cases alleging delinquent conduct where commitment to TYC is not possible.

 

            e.  Category E- cases alleging conduct indicating a need for supervision.

 

       7.3  Counsel shall be approved for inclusion on the lists in a particular category by majority vote of the Juvenile Probation Board. 

 

SECTION EIGHT-STANDARDS FOR COUNSEL

                       

8.1 To be eligible to be included on the list, counsel must submit an application to the appointing authority in the form as attached as Exhibit F, 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 to clients;

           

            c.  Demonstrated professionalism and reliability;

           

d. Have received credit for six (6) hours of continuing legal education pertaining to juvenile law at the time of application and maintain such credit each twelve month period thereafter or be certified in juvenile 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 juvenile;

 

f.  Agree to make every reasonable effort to contact the juvenile not later than the end of the first working day after the date on which counsel was appointed and to interview the juvenile as soon as practicable thereafter; and

 

g.  Represent the juvenile until the petition is dismissed, the allegation against the juvenile is found to be not true, 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.

 

            8.2  In addition to the requirements in 8.1 above, counsel shall meet the following

additional requirements for the following categories:

 

a.  Category A- 8 years of practice in criminal or juvenile law or have tried as lead counsel eight contested felony or juvenile cases.

 

b.  Category B- 7 years of practice in criminal or juvenile law or have tried as lead counsel five contested felony or juvenile cases.

 

c.  Category C- 5 years of practice in criminal or juvenile law or have tried as lead counsel three contested felony or juvenile cases.

 

d.  Category D- 3 years of practice in criminal or juvenile law or have served as lead counsel or associate counsel in three juvenile or criminal cases.                 

 

e.  Category E- 1 year of practice in criminal or juvenile law have served as lead counsel or associate counsel in a juvenile or criminal case.

 

            8.3 Counsel applying to be included on the list but not meeting the minimum requirements, may be appointed as counsel to assist other counsel.

 

            8.4 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
10/31/2013

 

            5.2  The appointing authority shall review any request for counsel and indigence affidavit:

 

            a. immediately if a detention hearing is to be conducted;

 

b. not later than five days after a petition for adjudication or certification has been served on the juvenile; or

           

c. not later than five days after a motion to modify disposition that requests commitment to TYC or a secure facility has been filed.

 

            5.3 Upon review, if the parent(s) or guardian(s) of the juvenile are found to be indigent, and counsel has not been previously appointed, the appointing authority shall, on the same day, appoint qualified counsel as provided in Section 8.8, and shall forward, by personal delivery, or by fax if available, or by mail if fax is not available, a true copy of the order appointing counsel to the parent(s) or guardian(s), appointed counsel, counsel for the petitioner, the clerk and the judge of the court concerned.  The appointing authority shall also forward to appointed counsel a copy of the request for counsel unless a detention hearing is to be held on the same day.

 

             5.4  Except as provided in Section 5.7, if the parent(s) or guardian(s) of the juvenile are found not to be indigent, the appointing authority shall, on the same day:

 

a.  notify the parent(s) or guardian(s) by the most expedient means reasonably available of such determination and of the denial of the request; and

 

            b.  order the parent(s) or guardian(s) to employ counsel of their own choosing; or

 

c.  appoint counsel (unless counsel has been previously appointed under Section 1.1).  If counsel is appointed as provided in this section, the appointing authority shall forward a copy of the order appointing counsel to the parent(s) or guardian(s), appointed counsel, counsel for the petitioner, the clerk and the judge of the court concerned.  The appointing authority shall also forward a copy of the request for counsel to appointed counsel.  

 

            5.5 The parent(s) or guardian(s), counsel for the juvenile, or counsel for the petitioner, may move the appointing authority to reconsider the determination of indigence if there has been a material change in the financial circumstances of the parent(s) or guardian(s) since the determination sought to be reconsidered was made.


               5.7  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 that hearing.

 

           

Attorney Selection Process
11/18/2009

8.5 Counsel shall be approved for inclusion on the list in a particular category or categories by majority vote of the Juvenile Probation Board.

 

            8.6  Counsel may be removed from the list or from a particular category or categories by majority vote of the Juvenile Probation Board 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 juveniles as required, or has submitted a claim for legal services which were not performed.

 

            8.7 Counsel may have their name removed from the list at any time by request made in writing to the appointing authority.

 

            8.8 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.

 

            8.9 If the juvenile 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 in a language understood by the juvenile.  Such a circumstance shall be good cause for appointing counsel out of order. 

 

            8.10 Counsel shall be listed in alphabetical order by last name.

 

SECTION NINE-       REMOVAL OR REPLACEMENT OF COUNSEL

 

            9.1 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 petition is amended to request a disposition different than the disposition initially requested;

 

b.  Counsel who has been appointed fails to meet or maintain the qualifications required for the category involved;

 

c.  The juvenile states on the record that he or she desires to have different counsel for an appeal or writ application; or

 

d.  Other good cause is found and stated on the record.

 

            9.2 In the event the judge presiding over the proceedings determines that counsel should be replaced, such judge shall notify the appointing authority and qualified counsel whose name next appears on the list shall then be appointed.

 

            9.3  The judge presiding over any proceeding for which counsel is required shall ensure that each juvenile who appears in court without counsel shall have counsel appointed under the procedures set out in this plan.

Fee and Expense Payment Process
11/18/2009

SECTION TEN-  COMPENSATION OF COUNSEL

 

            10.1 Counsel shall be compensated according to the fee schedule adopted by the Juvenile Probation Board in effect at the time of the appointment.

 

            10.2 The fee schedule in effect at the time of the adoption of this plan is attached as Exhibit G.

 

            10.3 At the conclusion of the appointment as provided by Section 51.101 (a), Texas Family Code, 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 H.

 

            10.4 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.

 

            10.5 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.

 

            10.6 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.

 

            10.7 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 ELEVEN-APPOINTMENT AND COMPENSATION OF INVESTIGATORS AND EXPERTS

 

            11.1 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.

 

            11.2 Expenses for investigators or experts incurred with prior court approval shall be reimbursed as provided in the order granting approval.

 

            11.3 Expenses for investigators or experts incurred without prior court approval shall be reimbursed only if necessarily and reasonably incurred.

Plan Documents
Swisher Juvenile Board Affidavit of Indigence.rtf (11/19/2009 11:16:53 AM) view
Swisher Juvenile Board Attorney Application for Appointment.rtf (11/19/2009 11:16:14 AM) view
Swisher Juvenile Board Attorney Fee Schedule.rtf (11/19/2009 11:16:25 AM) view
Swisher Juvenile Board Attorney Fee Voucher.rtf (11/19/2009 11:16:33 AM) view
Swisher Juvenile Board Magistrates Warning Form.rtf (11/19/2009 11:17:02 AM) view