Ellis County Court Plan
The Statutory County Court of Law Judges, of Ellis County, Texas, hereby adopt, order, establish, and publish these county wide procedures, rules, and orders for the timely and fair appointment of counsel for indigent persons accused of misdemeanor offenses in Ellis County, Texas. This Plan conforms to the requirements of Article 26.04 Tex. Code Crim. Proc. and is hereinafter referred to as the "Plan". The forms required by the Plan are herewith provided in the Plan Documents section of the Plan.
During Ellis County’s budgetary process for the 2018-2019 fiscal year, the Commissioners Court approved the creation of an Ellis County Indigent Defense Coordinator position, referred to within the Plan as the "Indigent Defense Coordinator". This was partly accomplished with a grant from the Texas Indigent Defense Commission. During Ellis County’s 2019-2020 fiscal year, the Commissioners Court continued to authorize the position and established a separate departmental line item budget. In addition, the Ellis County Indigent Defense Committee (referred to within the Plan as the "Indigent Defense Committee") was formed by those Judges of the courts of record in Ellis County who regularly handle felony, misdemeanor, and/or juvenile cases. The purpose of the Indigent Defense Committee was/is to provide general guidelines by which the Indigent Defense Coordinator would be hired, compensated, managed, monitored, and reviewed.
By this Plan, the Judges hereby fully assign the Indigent Defense Coordinator with the responsibility to serve, under the supervision of the Indigent Defense Committee and the individual Judges, as a primary authorized appointing authority for indigent counsel in Ellis County, whose duties shall include: (i) review all requests for court appointed counsel; (ii) appoint attorneys in a fair, neutral, and nondiscriminatory manner; (iii) notify attorneys of appointments; (iv) notify defendants of their appointment or determination of ineligibility for court appointed counsel; (v) maintain attorney appointment lists and supporting records; (vi) develop and implement systems/procedures related to core functions; (vii) serve as the chief liaison with the Texas Indigent Defense Commission; (viii) perform key liaison functions in Ellis County between the judges, court coordinators, attorneys, jail administrators, county judge, county commissioners court, and county auditor; and (ix) perform additional duties as requested by the individual Judges or as designated by the Ellis County Indigent Defense Committee.
I. Prompt Magistration
A. Arresting Officer Responsibilities
1. The arresting officer, or the person having custody of the arrestee, shall ensure that every arrestee shall be brought before a Magistrate without unnecessary delay, but not later than 48 hours after the person is arrested.
2. Unless arrested pursuant to an arrest warrant, bench warrant, capias, or other order of a magistrate or judge, necessary forms establishing probable cause must be completed and filed at the time an arrestee is booked into jail for any felony or misdemeanor punishable by incarceration.
B. Magistrate Duties
1. At the Magistrate’s hearing, the Magistrate should determine if the accused can speak and understand English, or if the defendant is deaf.
2. After making such determination, the Magistrate shall, in an appropriate manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31 and15.17, do the following:
a. Advise the accused of the accusation against him/her and any affidavit filed therewith.
b. Admonish the accused of:
(1) The right to retain counsel;
(2) The right to remain silent;
(3) The right to have an attorney present during any interview with peace officers or attorneys representing the state;
(4) The right to terminate an interview at any time;
(5) The right not to make a statement and that any statement made by the accused may be used against him/her; and
(6) The right to an examining trial.
c. Inform the accused of the right to appointed counsel if the person cannot afford counsel and the procedures for requesting appointment of counsel.
d. Inquire as to whether accused is requesting that counsel be appointed.
e. Provide accused persons requesting appointed counsel with necessary forms for requesting appointment of counsel and ensure that reasonable assistance in completing required forms is provided to the accused at the time of the Magistrate’s hearing.
f. If the Magistrate has reason to believe the accused is not mentally competent, the Magistrate shall enter a request for counsel on behalf of the accused. Such a request will alert the appointing authority that counsel competent to represent mentally ill persons should be appointed.
3. In cases where the individual was arrested without an arrest warrant, bench warrant, capias, or other order of magistrate or judge, the Magistrate shall determine if there is probable cause to believe the person committed the offense.
4. If probable cause has not been determined by a Magistrate;
a. A person arrested for a misdemeanor must be released on bond, either in an amount not to exceed $5,000, or personal bond, not later than 24 hours after the person’s arrest in conformity with Article 17.033, Texas Code of Criminal Procedure.
b. If requested by the State, the Magistrate may postpone the release of the defendant for not more than 72 hours after the defendant’s arrest, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.
5. The Magistrate shall set the amount of bail and any conditions of bond for the accused, if bail is allowed by law and has not been set by the Court or Magistrate issuing a warrant.
6. The Magistrate shall record the following:
a. The date and time the accused was arrested and the date and time when he/she was brought before the Magistrate.
b. Whether the Magistrate informed the accused of the right to request appointment of counsel and asked the accused whether he/she wants to request counsel.
c. Whether the accused requested appointment of counsel.
7. If the accused is charged with a misdemeanor punishable by incarceration and has requested court appointed counsel, the Magistrate shall furnish the accused with the Instruction Regarding Court Appointed Attorney form and shall immediately transmit or cause to be transmitted to the Indigent Defense Coordinator, without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel, a copy of the form recording the Magistrate warnings and the right to court appointed counsel for indigent accused persons and the Affidavit of Indigence form requesting appointment of counsel. The Indigent Defense Coordinator will maintain the forms until transmitted to the Court Clerk for filing.
8. If the accused is charged with a misdemeanor punishable by incarceration and has not requested court appointed counsel, the Magistrate shall immediately transmit or cause to be transmitted to the Indigent Defense Coordinator, without unnecessary delay, but not later than 24 hours after the person arrested has declined appointment of counsel, a copy of the form recording the Magistrate warnings and the right to court appointed counsel for indigent accused persons indicating that the accused has not requested court appointed counsel. The Indigent Defense Coordinator will maintain the form until transmitted to the Court Clerk for filing.
9. If the accused is arrested on out of county misdemeanor warrants in Ellis County, 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 appropriate county for appointment of counsel in that jurisdiction within 24 hours of the request being made. Regarding the appointment of counsel, for persons arrested in Ellis County on out of county warrants, persons must be appointed counsel in the county that issued the warrant within (3) three working days of receipt of the request. Persons arrested on out of county warrants must be appointed counsel in Ellis County 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 arrest.
10. If the accused is arrested on Ellis County misdemeanor warrants in another county, the magistrate will ask the defendant if he/she would like to request appointed counsel. The magistrate of the other county will record the response, and if counsel is requested, the magistrate will provide the arrestee with 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 Indigent Defense Coordinator of Ellis County, Texas, where Ellis County is the county issuing the misdemeanor warrant within 24 hours of the request being made. Regarding the appointment of counsel, persons arrested in other counties on local warrants must be appointed counsel from the Ellis County appointing authority within (3) three working days of receipt of the request. If Ellis County fails to inform of the granting or denial of appointment of counsel, persons arrested on out of county warrants must be appointed counsel in the county of arrest 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 arrest.
Indigence Determination Standards
II. Indigence Determination Standards
A. Definitions, as used herein:
1. “Indigent” means a person who is not financially able to employ counsel.
2. “Net household income” means all income of the accused and spousal income actually available to the accused. Such income shall include, but not be limited to; 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 accused has no income or lesser income.
3. “Household” means all individuals who are actually dependent on the accused for financial support.
4. “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
1. An accused is presumed indigent if any of the following conditions or factors are present:
a. At the time of requesting appointed counsel, the accused or accused’s dependents are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing;
b. The accused’s net household income 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; or
c. The accused 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.
2. An accused who does not meet any of the standards above may nevertheless be considered indigent. In determining indigence and the financial ability of the accused to retain counsel, the appointing authority shall take into account:
a. the nature of the criminal charge(s);
b. anticipated complexity of the defense;
c. the estimated cost of obtaining competent private legal representation for the matter charged;
d. the amount needed for the support of the accused and the accused’s dependents;
e. accused’s income from any and all sources;
f. source of income;
g. assets and property owned;
h. outstanding obligations;
i. necessary expenses;
j. the number and ages of dependents and support required;
k. spousal income that is available to the accused; and
l. other reasonable factors that may be ascertained by the Judge or the Indigent Defense Coordinator.
3. Factors NOT to be considered in determining indigence:
a. The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent, except to the extent it reflects the financial resources of the accused.
b. The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.
4. Only the accused’s financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
5. The court may appoint counsel to assist the accused when in the discretion of the presiding judge, the interests of justice necessitate the appointment of counsel to assist the accused.
C. Indigence Proceedings:
1. The Indigent Defense Coordinator or Coordinator’s designee shall receive, review, and enter the application of the accused for court appointed counsel utilizing TechShare Indigent Defense System, make a determination of indigent status. If the accused is qualified for court appointed counsel, then counsel will be appointed from the misdemeanor appointment attorney list. The appointment will be made for the accused within 3 working days after receiving the Application for Court Appointed Counsel/Affidavit of Indigence. Working day means Monday through Friday, excluding official state and/or county holidays. If the accused is not qualified for court appointed counsel, the Indigent Defense Coordinator shall notify the accused of the finding of ineligibility within 3 working days.
2. The appointing authority can require the accused to respond to questions about the accused’s financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
3. Information gathered for determining indigence, whether in the affidavit of indigence, oral testimony or other evidence, may be used for:
a. Determining if the accused is (or is not) indigent; or
b. Impeaching direct testimony of accused regarding the accused’s indigence.
4. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in these rules and in the Code of Criminal Procedure.
5. An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused’s financial circumstances occurs.
6. An accused’s status as indigent or not indigent may be reviewed at any stage of court proceedings, on a Motion for Reconsideration by the accused, the accused’s attorney, the attorney representing the State, or the Court.
7. If an accused 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 time and services reasonably expended on the case. The accused may be ordered to reimburse the county for any amounts paid on behalf of the accused.
III. Reimbursement to the County by an Accused
A. If the Court determines that an accused has financial resources that enable the accused to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the Court may order the accused to reimburse Ellis County for some or all of the sums expended on the accused’s behalf. Payments may be required during the pendency of the charges or, as court costs in the amount that the Court finds the defendant is able to pay, or as a condition of Community Supervision, or in any other manner ordered by the Court.
B. The Court may modify or suspend the order of reimbursement upon further proof of inability to comply with the Court's Order.
C. Violation of the Court’s order may be enforced as contempt of court, as a violation of condition of bond, capias pro fine, violation of a term of community supervision, or any other means provided by law.
Minimum Attorney Qualifications
IV. Minimum Attorney Qualifications for Placement on the “Misdemeanor List”
A. The Judges of the County Courts at Law for Ellis County shall establish an attorney appointment list for misdemeanor offenses punishable by confinement in jail. Applicants must meet the minimum eligibility qualifications established by the plan. In addition to meeting the minimum eligibility requirements of this “Plan”, each attorney on the Misdemeanor Appointment List must demonstrate competence and professionalism in the ethical representation of each client. More than one attorney from a single firm may seek placement on the list, but the Judges may limit the total number of attorneys from a single firm. The appointed attorney will be responsible for the case and perform the work related to the case.
To be eligible for placement on the Misdemeanor Appointment List (the "Misdemeanor List”), an attorney must meet the following minimum requirements:
1. The attorney must submit an accurate and truthful application for each year the attorney seeks to receive appointments in misdemeanor cases. An application may be submitted beginning December 1 for the next calendar year. A new application must be submitted each calendar year. The Misdemeanor List will begin new in January of each calendar year and will be updated as new attorneys are added to the Misdemeanor List.
2. The attorney must be a licensed practicing attorney and a member in good standing of the State Bar of Texas.
3. The attorney must complete a minimum of 6 hours of CLE approved by the State Bar of Texas in the area of criminal law and/or criminal procedure during the twelve months immediately preceding submission of the application. The attorney must provide proof of completion of the required CLE or submit documentation showing that the attorney is certified as a specialist in criminal law in order to be placed on and remain on the approved list.
4. In accordance with Article 26.04 of the Code of Criminal Procedure, 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 delinquency cases for the prior twelve months that begins October 1 and ends on September 30. The statement must be submitted in the manner required by the Texas Indigent Defense Commission. Proof of compliance must be submitted with the application. Penalties for failing to submit a required practice-time statement or any failure to comply with any other provision may include an attorney's removal from The List, a determination that the attorney is not eligible for placement on The List for future appointments, a substitution of counsel on existing cases, and/or any other remedy agreed upon by the judges or other appointing authority.
5. An attorney may be removed from the List for submitting false, inflated, or duplicate applications, invoices or requests for reimbursement.
6 The attorney must 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 3 years.
7. The attorney must maintain a law office in Ellis County that is:
a. capable of receiving email, and telephone calls;
b. serviced by a business telephone number that is published and answered 24 hours a day, 7 days a week (voicemail or answering machine is sufficient for receiving calls during non-business hours);
c. capable of receiving email from the Court;
d. staffed by at least one person who can be contacted at that office address and phone number during business hours in the attorney’s absence;
e. capable of receiving the public;
f. capable of holding confidential meetings with clients and witnesses; and,
g. has an appearance that is appropriate for conducting legal business in the professional manner expected by the public.
8. The attorney must have the ability to produce typed motions and orders.
9. The attorney must provide professional legal services and representation in a reasonable amount of time comparable with the average ability of experienced criminal law attorneys for similar cases with similar circumstances.
10. The attorney must maintain eligibility requirements after being placed on the appointment list.
11. An appointed attorney shall notify the appointing authority and the trial court of each pending Ellis County misdemeanor case, to which the attorney was appointed, promptly and in writing, of any matter that would disqualify the attorney by law, regulation, rule, or under the Plan from receiving appointments to represent indigent defendants.
12. An attorney may submit a written request for a waiver of one or more of the minimum requirements. Such request will be denied unless the Statutory County Court at Law Judges unanimously approve the waiver.
B. Approval for Appointment Lists – In addition to meeting the minimum requirements listed in the Plan, an attorney must be approved by a majority of the Statutory County Court at Law Judges hearing criminal cases in order to be placed on the Misdemeanor Appointment List. The Judges may review applications as they are received or in regular intervals not less than bi-annually. The Judges retain full discretion in deciding whether or not to expand or contract the List. Any determination to revise the appointment list or amend the Plan is within the discretion of the Judges. The determination to place or not place an attorney on the List, or when to place an attorney on the List, or to remove an attorney from the List, based on the criteria in the Plan, is within the discretion of the Judges.
C. Removal from Appointment List – The Statutory County Court at Law Judges may monitor attorney performance on a continuing basis to assure the compliance and competency of attorneys on the List.
1. An attorney presenting false information in an application may be:
a. removed/excluded from the List;
b. reported to the State Bar, Task Force for Indigent Defense, Ellis County Auditor, members of the Juvenile Board, the local defense bar, and/or other interested parties;
c. excluded from future consideration for placement on the List; and/or,
d. removed from any case where an appointment has been made under the Plan.
2. The presiding judge may replace an attorney if the appointed counsel does not make an effort to contact or interview the accused as required, or may sanction said attorney for violation of those provisions.
3. The presiding judge may remove an attorney from the List, 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 fails to comply with or maintain eligibility requirements for inclusion on the List for counsel for indigent defendants.
4. The presiding judge may remove an attorney from the List if the attorney has been found to have rendered ineffective assistance of counsel. Following such removal, the attorney may or may not be reinstated to the List depending upon the frequency or level of deficiency. Such attorney may be required to satisfactorily complete a remedial program before reinstatement.
5. An attorney may be removed from the List for other good cause.
6. The presiding judge may take lesser action than removal, for example temporary suspension or other remedial measures.
7. An attorney may also be removed or suspended from the List by a majority vote of the Statutory County Court at Law Judges.
D. Reinstatement to Appointment Lists – An attorney who has been removed from the appointment list for any reason and who wishes to be reinstated must apply through the original application process. An attorney may apply at any time during the calendar year for that year. Each appointment list will be for a calendar year. A new list will go into effect on January 1 of each year.
E. Minimum Eligibility Requirements for Appellate Wheel
The Judges of the Ellis County Statutory County Courts shall maintain an Appellate Appointment List of qualified criminal appellate attorneys.
Court appointed appellate counsel shall be selected on the basis of an appellate wheel or rotating list of appellate appointments, to be administered in a manner similar to the selection and appointment of trial counsel as described in this plan.
In order to be approved for inclusion on the Appellate Appointment List, an application must be prepared and filed with the Judges of the Statutory County Courts at Law of Ellis County, demonstrating that the following minimum eligibility requirements have been met:
1. Licensed by the Supreme Court of Texas and in good standing with the State Bar of Texas.
2. Competence to represent on appeal persons accused of misdemeanor offenses.
3. Ability to provide professional appellate representation in an average amount of time commensurate with the average ability of experienced criminal law attorneys for similar cases with similar legal issues.
4. Applicant must have completed a minimum of twelve hours of CLE pertaining to state criminal trial law or state criminal appellate law within the twelve-month period prior to the date of the application. Alternatively, the twelve-hour CLE requirement may be satisfied by maintaining a specialization in criminal trial law or criminal appellate law through the Texas Board of Legal Specialization.
5. In accordance with Article 26.04 of the Code of Criminal Procedure, 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 delinquency cases for the prior twelve months that begins October 1 and ends on September 30. The statement must be submitted in the manner required by the Texas Indigent Defense Commission. Proof of compliance must be submitted with the application. Penalties for failing to submit a required practice-time statement or any failure to comply with any other provision may include an attorney's removal from The List, a determination that the attorney is not eligible for placement on The List for future appointments, a substitution of counsel on existing cases, and/or any other remedy agreed upon by the judges or other appointing authority.
V. Duties of Appointed Counsel
A. Appointed Counsel Shall:
1. Register to request and establish access to the TechShare Attorney Portal, and once enabled by the County, utilize the Attorney Portal for the following purposes:
a. Accept/View/Manage Appointments
b. Create/Submit Vouchers
c. Manage Individual Out-of-Rotation Dates
2. Make every reasonable effort to:
a. Contact the defendant by the end of the first working day after the date on which the attorney is appointed; and
b. Personally interview the defendant as soon as practicable after the attorney is appointed.
3. Represent the defendant until:
a. Charges are dismissed;
b. The defendant is acquitted;
c. Appeals are exhausted; or,
d. The Court removes or replaces the attorney.
4. Personally interview the defendant prior to the first court setting.
5. Obtain discovery in the case prior to the first court setting.
6. Obtain a plea recommendation from the state prior to the first court setting.
7. Investigate the facts of the case and be prepared to present any factual defense(s) that may be reasonably and arguably available to the defendant.
8. Review the law of the case and be prepared to present any legal defense(s) that may be reasonably and arguably available to the defendant.
9. Be prepared to negotiate with the prosecutor for the most favorable resolution of the case as can be achieved through a plea agreement.
10. Be prepared to try the case to its conclusion either with or without a jury.
11. 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. In the event that an appeal is appropriate, the attorney of record will file the appeal or in the alternative, in a timely manner file a Motion of New Trial and Notice of Appeal; file a Motion to Withdraw and Motion to Appoint New Attorney.
12. Maintain reasonable communication and contact with the client at all times and keep the client informed of the status of the case, including the date and time of all court settings.
13. Advise the client on all matters involving the case and such collateral matters as may reasonably be required to aid the client in making appropriate decisions about the case.
14. Perform the attorney’s duty owed to the defendant in accordance with these procedures, the requirements of the Code of Criminal Procedure, and applicable rules of ethics.
15. Manage the attorney’s workload to allow for the provision of quality representation and the execution of the responsibilities listed in these rules in every case.
16. Inform the Court and the Indigent Defense Coordinator of any absence or unavailability that would exceed three working days or interfere with compliance to the Plan
17. Advise the client that standard rules of Court decorum still apply for hearings conducted via Webex and ensure the client has access to a reliable and stable internet connection.
B. Rejection/Termination of appointment: In the event the attorney cannot or refuses an appointment or the attorney/client relationship is terminated prior to final resolution, the attorney must notify the Indigent Defense Coordinator and the Court in which the case is pending.
Prompt Appointment of Counsel
VI. Prompt Appointment of Counsel
A. If the accused is qualified to receive court appointed counsel:
1. The Indigent Defense Coordinator shall appoint counsel as soon as possible to indigent defendants, but no later than the end of the third working day after the date the defendant’s request for court appointed counsel is received. Working day means Monday through Friday, 8:00 a.m. - 5:00 p.m., excluding official state and/or county holidays. If the accused is in custody, counsel must be appointed to qualified recipients whether or not a case has been filed in the trial court.
2. If the defendant is released from custody prior to the appointment of counsel, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.
B. If the accused requests, but is not qualified to receive court appointed counsel, the Indigent Defense Coordinator shall notify the accused within three working days after receiving the application for court appointed counsel.
C. If an indigent defendant is arrested in another county based on this county's warrant, counsel will be appointed within three working days of this county's receipt of the request for counsel.
D. 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.
E. 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; or http://co.ellis.tx.us/ . The defendant may submit these forms to: IDC@co.ellis.tx.us or via fax to 972-825-5386.
VII. Defendants Appearing Without Counsel
A. Court Action - If a defendant appears without counsel in any adversarial judicial proceeding involving a criminal charge that may result in punishment by confinement:
1. 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.
2. The Court may not direct or encourage the defendant to communicate with the attorney representing the State unless the appointing authority has denied a defendant’s request for appointed counsel and, subsequent to the denial, the defendant:
a. Has been given a reasonable opportunity to retain counsel and has failed to retain counsel; or,
b. Waives or has waived the opportunity to retain private counsel.
B. Prosecution Action - If a defendant appears without counsel in any adversarial judicial proceeding involving a criminal charge that may result in punishment by confinement, the State shall 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.
C. A defendant appearing without counsel may waive the right to counsel.
1. A defendant may voluntarily and intelligently waive the right to counsel. If a defendant wishes to waive the right to counsel for purposes of entering a 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:
a. “I have been advised this _____ day of _________, 20____, 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 counsel, one will be appointed for me free of charge. I have been advised of and understand the dangers and disadvantages of self- representation. 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. Withdrawal of Waiver
1. 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 direction, may provide new counsel 10 days to prepare. Waiver shall not be used as a delay tactic. The defendant may be required to proceed without representation as allowed by law.
VIII. Appointment Authority
A. If no case has been filed in the trial court, the appointing authority for misdemeanors punishable by incarceration is a Judge of one of the Statutory County Courts at Law or, in the alternative, the Judge's designee, or the Indigent Defense Coordinator.
B. If the case has been filed in a trial court, the appointing authority is the trial court judge or the trial court’s judge's designee, or the Indigent Defense Coordinator.
Attorney Selection Process
IX. Attorney Selection Process
A. Order of Appointments – Attorneys shall be appointed consistent with the Code of Criminal Procedure. Attorney appointments made using TechShare Indigent Defense Software, based on the County's attorney wheel configuration. As far as practicable, the Indigent Defense Coordinator will assign the attorney based on this recommendation. The following exceptions may be considered in altering the order:
1. The attorney or the firm represents a co-accused.
2. The accused requested a particular attorney not be appointed.
3. The accused requested a particular attorney be appointed.
4. The attorney requested that he/she not be appointed to a particular accused or to a particular case.
5. The attorney has indicated an ethical conflict exists in representation of a particular accused or a particular case.
6. The Court perceives the appearance of an ethical conflict in representation of a particular accused or a particular case.
7. The attorney has not withdrawn from the List but has requested that he/she not be appointed for a specified period of time or until the Court is notified otherwise.
8. The attorney is not available to contact the accused within the time required by the Plan and/or interview the accused within the time required by the Plan.
9. The attorney is not eligible for appointment.
10. The accused is not fluent in the English language and an attorney fluent in the accused’s language of choice is available for appointment.
11. The complexity or nature of the case may require an attorney with more experience.
12. The accused makes a request for an appointed attorney in court and an attorney on the list is available in the courtroom.
13. The expeditious and effective resolution of current or additional cases would be impaired due to the number or complexity of undisposed cases on an attorney’s docket.
14. An attorney has previously been appointed to the accused on another case.
15. Any other valid reason found applicable by the Court.
B. The Indigent Defense Coordinator or the coordinator's designee shall notifiy the attorney of his appointment with an Order Appointing Attorney sent via TechShare or email. The attorney shall access the TechShare Attorney Portal on a daily basis to manage appointments. The attorney is deemed to have accepted the appointment, unless the attorney promptly notifies the Judge and the Indigent Defense Coordinator otherwise.
C. Emergency Appointment - If no attorney on the approved appointment list is available within the time required for an attorney to be appointed under the Plan, any attorney may be appointed. In emergency situations, priority shall be given to an attorney with experience in criminal law.
D. Equal and/or Fair Distribution of Cases – Due to the complexity of a case or needs of an accused, the number of cases assigned or the amount of compensation may not always be equal among the attorneys on the List within a given timeframe or a given accounting year. Additionally, the Court allows attorneys to temporarily remove themselves from the List upon notice, e.g. vacations, illness, workload, etc. It is not practical to make up the number of cases to attorneys who have taken voluntary leave from appointments or who have not been appointed to cases because the number or complexity of the undisposed cases on the attorney’s docket. Otherwise, Indigent Defense Coordinator will appoint each attorney based on the appointment recommendations within the TechShare system in turn as the name appears on the rotation and any attorney passed over for the enumerated reasons will be appointed to the next case for which the attorney is eligible, in order to ensure, as far as practical, equal and/or fair distribution of cases among the attorneys on the List.
E. Judicial Removal from a Case – In addition to other grounds or methods of removal, the judge presiding over a criminal case may remove appointed counsel from any case upon making a ruling in open court on the record or entering a written order showing good cause for such removal. Good cause may include, but is not limited to 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 defendant and the charges against the defendant indicate that another qualified attorney is more appropriate for the defendant under these rules;
4. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
5. The defendant requests an attorney, other than trial counsel, for appeal;
6. The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant; or,
7. Such other good cause as determined by the Court.
F. Prompt Replacement of Counsel – Whenever appointed counsel is removed and other counsel is to be appointed under this section, replacement counsel shall promptly be selected and appointed in accordance with the procedures described in this Plan.
Fee and Expense Payment Process
X. Fee and Expense Payment Process
A. Court appointed counsel shall be compensated for 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 a majority of the judges hearing criminal cases in the County Courts at Law of Ellis County, as provided under Article 26.05(b) of the Code of Criminal Procedure. A fee reimbursement request, or fee request in excess of the rates provided for in the Plan's fee schedule will not be approved.
B. Payment Process – No payment of attorney’s fees will be made other than in accordance with the rules set forth below:
1. The attorney requesting payment shall keep an accurate account of time expended and services rendered.
2. An appointed attorney shall keep an accurate account of time expended, services rendered and time spent on the case electronically via the TechShare Attorney Portal for all appointments that were assigned via the TechShare system. For appointments not assigned using TechShare, or for investigative and expert expenses, the attorney shall fill out and submit a paper fee voucher form to the Court for reasonable services actually rendered. The attorney will provide additional documentation and information, if requested by the Court.
3. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested. The Court reserves the right in all cases to modify the fee requested based on the nature or complexity of a given case and the number of hours of professional time reasonably necessary to accomplish the services actually rendered or required in the context of the ability of an average competent attorney with average experience. Approval or disapproval of the reasonableness and necessity of time necessary to be expended or performed and applied to a particular service performed shall be within the discretion of the Court, but shall not exceed the rates and fees set forth in the Plan. An attorney whose request for payment is disapproved may appeal to the presiding judge of this administrative judicial region. An attorney that submits a false, inflated, or inaccurate request for payment may be removed from the List of approved attorneys.
C. Payment of Expenses – The appointed counsel 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, mental health evaluations, and other experts. Prior Court approval is not required for the ordinary costs associated with obtaining copies of materials and relevant items in the custody of the State/prosecuting attorney.The Court will not approve expenses for investigators for work that could reasonably be done by counsel or counsel’s staff within the authorized fee schedule.
1. Procedure with Prior Court Approval:
a. Appointed counsel may file with the trial court a pretrial request for advance payment or approval of investigative and expert expenses. The request may be an ex parte confidential request as allowed by law. The request for expenses must state as applicable:
(1) the type of investigation to be conducted or the type of expert to be retained;
(2) specific facts that suggest the investigation will result in admissible evidence or that the services or an expert are reasonably necessary to assist in the preparation of a potential defense; and
(3) an estimated cost of anticipated expenses for each investigation or each expert.
b. The Court shall grant the request for advance payment or approval 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, upon request by the attorney:
(1) state the reasons for the denial in writing;
(2) attach the denial to the confidential request; and
(3) submit the request and denial as a sealed exhibit to the record.
c. When the request is granted, the advancement or payment will be ordered paid to the attorney who in turn will pay those persons or entities engaged by the attorney. Reimbursement of expenses incurred for purposes of investigation or expert testimony may be paid directly to a private investigator licensed under Chapter 1702, Occupations Code, or to an expert witness in the manner designated by appointed counsel and approved by the Court. Article 26.05(h) Tex. Code of Criminal Procedure.
2. Procedure Without Prior Court Approval:
a. 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, reasonably incurred, and at a reasonable rate. Unreasonable, unnecessary, or excessive expenses will not be approved.
b. Approved reimbursement payments will be paid to the attorney who in turn will pay those persons or entities engaged by the attorney. Reimbursement of expenses incurred for purposes of investigation or expert testimony may be paid directly to a private investigator licensed under Chapter 1702, Occupations Code, or to an expert witness in the manner designated by appointed counsel and approved by the Court. Article 26.05(h) Tex. Code of Criminal Procedure.
XI BREAKING A TIE, DEADLOCK OR SPLIT VOTE OF THE JUDGES
A. In the event that a majority vote of the Judges of the County Courts at Law is required but unable to be obtained due to a deadlock or split vote, the Judges may ask the Local Administrative Judge for the District Courts of Ellis County to cast the deciding vote. In the event the Local Administrative Judge to the District Courts of Ellis County refuses or is otherwise unable to cast the deciding vote, the Judges may ask the Administrative Judge of the Judicial Region to cast the deciding vote.
Ellis County Court Affidavit of Indigence.pdf (11/1/2019 12:04:19 PM) view
Ellis County Court Attorney Application for Appointment.pdf (10/31/2023 1:58:12 PM) view
Ellis County Court Attorney Fee Schedule.pdf (10/31/2023 1:52:27 PM) view
Ellis County Court Attorney Fee Voucher.pdf (12/4/2020 2:51:00 PM) view
Ellis County Court Ellis County Court Finding of Indigent Ineligibility.pdf (11/1/2019 12:11:01 PM) view
Ellis County Court Ellis County Court Order Appointing Attorney.pdf (11/1/2019 12:09:46 PM) view
Ellis County Court Magistrate’s Warning Form.doc (10/29/2021 2:00:07 PM) view
Ellis County Court One Month Delay of New Appointment List (COVID 2021).pdf (12/4/2020 3:06:51 PM) view
Ellis County Court Order Appointing Attorney and Reset.doc (10/28/2011 4:34:58 PM) view
Ellis County Court Waiver of Counsel.doc (10/29/2021 2:00:44 PM) view