5.21 Procedures and Financial Standards for Determining Whether a Defendant is Indigent

These standards shall apply to each defendant equally, regardless of whether the defendant is in custody or has been released on bail.

A.    Definitions, as used in this section:

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: 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; annuities; income from dividends; interest; rents; rents; royalties; or periodic receipts form estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the accused as no income or lesser income.

3.     “Non-exempt assets and property” means cash on hand, stocks and bonds, and accounts at financial institutions.

4.     “Household” means all individuals who are actually dependent on the accused for financial support.

5.     “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.    Procedure for Requesting Assigned Counsel

1.     After the After the Article 15.17 hearing, if the arrested person has informed the magistrate that he/she does not want to request a county assigned attorney, this will be reflected on the Magistrate Warning form. If at any time after magistration the arrested person decides that he/she would like to be interviewed after telling the magistrate that they did not want to request a county assigned attorney, he/she will be referred to the Pretrial Services Officer for an interview (see below). If at any time after magistration the arrested person decides that he/she does not want to be interviewed for a county assigned attorney, after making the request with the magistrate, he/she will be referred to the Pretrial Services Office to sign a form reflecting the declination.

2.     After the Article 15.17 hearing, if the arrested person has informed the magistrate that he/she wants to request an assigned attorney, the arrested person will be interviewed by the Pretrial Services Clerk regardless of whether they are able to make bon. If the arrested person makes bond, this interview will take place before the release on bond.

3.     As soon as possible following the Article 15.17 hearing, a Pretrial Services Clerk shall interview each arrested person who wants to request an assigned attorney, and the arrested person will provide under oath the necessary information concerning the person’s financial resources. The Pretrial Services Clerk shall input this information into the computer for the arrested person.

4.     The financial data requested from the arrested person during the interview with the Pretrial Services Clerk will include but is not limited to the defendant’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant. Whether the defendant has posted or is capable of posting bail will not be considered in determining indigency, except to the extent that it reflects the defendant’s financial circumstances as measured by the considerations listed above.

5.     At the conclusion of the interview with the Pretrial Services Clerk, the arrested person will be asked to swear to and sign a “Financial Data Report Affidavit”.

C.    Eligibility for Assigned Counsel

1.     Based on the financial data given by the arrested person, the computer will calculate and determine whether the person meets the financial standard for indigence in Bexar County. Pursuant to the Code of Criminal Procedure Article 26.04(o), before a determination of indigence is made the arrested person signs an “Indigent Attorney Appointment Affidavit”. The standard for determining indigence is outlined as follows:

a.     The defendant’s necessary expenses will be subtracted from the defendant’s gross income, including spousal income if applicable. The resulting number will be referred to as the defendant’s “net income”

b.     “Necessary expenses” should include but are not limited to: rent or mortgage, food/groceries, car payment, car insurance, utilities.

c.     The defendant’s “net income” will be used to determine if the individual is indigent based on the income for one person under the Federal Poverty Guidelines. This amount will be adjusted annually pursuant to the Federal Poverty Guidelines, which are published in late January. 

D.    The Presumption of Indigence

1.     An accused is presumed indigent if at the tie of requesting assigned counsel, the accused or the accused’s dependents are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.

2.     An accused is also considered indigent if the accused meets any one of the following three criteria AND meets the asset test set out below:

a.     The accused’s net household income does not exceed one hundred twenty five percent (125%) of the Poverty Guidelines as revised annually by the United States Department of Health and Human Resources and published in the Federal Register.

b.     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; or

c.     The difference between the accused’s monthly net household income and reasonable necessary expenses is less than one thousand six hundred ten dollars ($1,610.00).  Reasonably necessary expenses should include but are not limited to: rent or mortgage. Food/groceries, car payment car insurance, health insurance, medical bills and utilities (water, electric gas, phone).

d.     The Test:

In addition to meeting one of the criteria in the section above, an accused is considered indigent only if the value of non-exempt assets and the property owned by the accused does not exceed the greatest of the following:

                                                   i.     $2,500;

                                                  ii.     $5,000 in the case of an accused whose household includes a person who is sixty (60) years or older, disabled, institutionalized; or

                                                iii.     Double the estimated cost of obtaining competent private representation for the offense with which the accused is charged.

3.     An accused who does not meet any of the financial standards set forth above shall nevertheless be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the accused’s dependents, taking into account:

a.     The nature of the criminal charge(s);

b.     The anticipated complexity of the defense;

c.     The estimated cost of obtaining competent egal representation for the matter(s) charged;

d.     The amount needed for the support of the defendant and the defendant’s dependents;

e.     The accused’s income;

f.      The source of income;

g.     Assets and property owned;

h.     Outstanding obligations;

i.      Necessary expenses;

j.      The number and ages of the dependents; and

k.     Spousal income available to the accused.

4.     A defendant who is determined to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs. If there is a material change in financial circumstances after a determination of indigency or non-indigency is made, the defendant, the defendant’s counsel, or the attorney representing the state may move for reconsideration of the determination.

a.     A written or oral statement elicited from the defendant during the process or evidence derived from the financial data provided may not be used for any purpose, except to determine the defendant’s indigency or to impeach the direct testimony of the defendant.

b.     A defendant may request assigned counsel at any time. Once this request has been made, the judge who presides over the defendant’s case shall contact the Managed Assigned Counsel Office and, after an interview, an attorney will be assigned according to the method of assignment outlined in the Prompt Assignment of Counsel section below. 

E.    Factors NOT to be considered in determining indigence:

1.     The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.

2.     The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.

3.     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.

5.22 Selection and Assignment of Counsel

For the Public Defender’s Office: The Chief Public Defender shall establish and maintain the specific attorney qualifications, standards of practice, and caseload standards for all PDO attorneys providing representation to those accused of criminal offenses in Bexar County.

For the Mental Health Division of the Managed Assigned Counsel Program: The mental health division of the Managed Assigned Counsel Program shall establish and maintain the specific attorney qualifications, standards of practice, and caseload standards for all mental health panel attorneys providing representation to people with serious psychiatric diagnoses who are accused of criminal offenses in Bexar County.

For the Managed Assigned Counsel Program: The Managed Assigned Counsel Program may establish additional criteria to determine which attorneys are qualified to represent persons charged with class A and B misdemeanors, 1st, 2nd, 3rd degree and state jail felonies, as well as appeals. The qualifications adopted by the Managed Assigned Counsel Program shall maintain or exceed the standards that are currently set forth below:

A. All Attorneys must meet the following minimum qualifications to receive criminal case assignments:

1. An attorney must have on file with authority from which they receive assignment a completed sworn application. Attorneys who submit an application to receive assignments must ensure all information on their application is correct and current by submission of an electronic oath or by oath before a notary.

2. An attorney must be a licensed practicing attorney and a member in good standing with the State Bar of Texas.

3. Attorneys must abide by the minimum CLE hour requirements adopted by the Managed Assigned Counsel Program. Attorneys must file a CLE report with the Managed Assigned Counsel Program each year attesting to the completion of required CLE.

4. An attorney must have a secretary, receptionist, answering service, or a cell phone with texting capabilities. An attorney must have an active e-mail account to receive court assignments and notices regarding procedural changes. An attorney must register a phone number consistent with the requirement above with the Bexar County Sheriff to receive calls from incarcerated clients. Attorneys are encouraged to enable the use of video-conferencing. In addition, an attorney must respond promptly (within one business day) to a phone call or text from the court or from the Managed Assigned Counsel Office.

5. An attorney shall notify the Managed Assigned Counsel Program promptly, in writing, of any matter that would disqualify the attorney by law, regulation, rule, or other guideline from receiving assignments to represent indigent defendants in Bexar County.

6. After approval by the Managed Assigned Counsel Program, attorneys must attend a general orientation conference regarding the operation of the assignment process and first setting procedures for indigent representation.

7. Pursuant to the Article 26.04 (j)(4) of the Texas Code of Criminal Procedure, an attorney shall submit by October 15th of each year a statement that describes the percentage of the attorney’s practice time that was dedicated to work based on assignments accepted in Bexar County for adult criminal cases and juvenile delinquency cases for the prior 12 months that begins on October 1 and Ends September 30. The report must be submitted through the online form to the Texas Indigent Defense Commission.

8. Ann attorney must must meet other standards adopted by the Managed Assigned Counsel Program that do not fall below the standards set forth in this plan.

9. If an attorney does not meet the qualifications to accept cases of a certain degree or case type, but would like the Managed Assigned Counsel Program to consider qualifying him/her for that list under the provision above, he/she can fill out a form called “Exception to Qualifications to Receive Court Assignments” and turn that in with his/her application.

B. All field specific requirements will be further outlined and made available in the Managed Assigned Counsel Standard Operating Procedures.

Application and Removal from the Assignment Panel

A. Following the submission of attorney applications for the assignment panels, the Managed Assigned Counsel Program shall evaluate the new applicants for each panel and the attorneys already on the panels. The Managed Assigned Counsel Program will review the new applications and any newly filed exceptions to the qualifications received. Attorneys approved by the Program will be placed on the appropriate assignment panels.

B. Involuntary Removal:

1. An attorney may be removed from one or more of the assignment panels. Reasons for removal include, but are not limited to:

1.            Whenever the Managed Assigned Counsel Program determines that the attorney no longer meets the objective qualifications for a specific panel, or is not fully competent to adequately handle the category of cases associated with that list. Note, the Managed Assigned Counsel Program may, in its own discretion, remove an attorney from one or more panels while continuing to approve the attorney for the other assignment panels.
2.              When an attorney intentionally or repeatedly violates the requirement that the attorney may make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is assigned and to interview the defendant as soon as practicable after the attorney is assigned.
3.              When, after a hearing, it is shown that the attorney submitted a claim for legal services not performed by the attorney.
4.              When, after a hearing, it is shown that the attorney requested and/or received any money or anything else of value for representing the accused, other than what is paid or anticipated to be paid to them by the county, without approval from the court in writing.
5.              In certain extraordinary circumstances, such as incarceration or institutionalization, an attorney may temporarily be removed from assignment panels.
6.              If an attorney is arrested at any time while on an assignment panel, that attorney must report the arrest to the Managed Assigned Counsel Program by the end of the first business day after the arrest.
7.              In the event that the Judge sees behavior unbecoming of counsel, they are to report all infractions to the Managed Assigned Counsel Program. After such report, the attorney in question will be reviewed for correction or removal. 

1. Participating panel attorneys have the right to request a temporary pause from receiving court assignments, as well as temporary reduction of caseloads upon request. The process for voluntary removal is located and made available in the Managed Assigned Counsel Program’s Standard Operating Procedures.

a. In the event that an Attorney is unavailable due to vacation or personal necessity, that Attorney shall submit a vacation form to the managed assigned counsel notice. Following Managed Assigned Counsel’s approval, a courtesy copy will be sent to the District clerk and disseminated to the judges.Vacation requests may be denied if there are existing trial settings.

D. Assignment of Replacement Counsel:

1. Whenever assigned counsel is removed under this section, replacement counsel shall immediately be selected and assigned in accordance with the procedures described in the Managed Assigned Counsel plan of operations.   

1. Counsel shall be assigned in the manner specified below, as soon as possible, but not later than the end of the first working day after the date on which the Pretrial Services Department receives the defendant’s request for counsel. “Working day” means Monday through Friday, except for official county holidays.

2. The magistrate or judge will advise all unrepresented defendants of the right to counsel and procedures for obtaining counsel in accordance with Article 1.051(f-2) of the Texas Code of Criminal Procedure.

3. The Managed Assigned Counsel Program will receive a master list every working day containing the names of all defendants who were arrested the previous day or weekend and were assigned counsel by the Pretrial Services Clerk. This master list will include the assigned counsel’s name and state bar number, as well as the case number(s) and offense(s) charged.

4. Persons arrested in other counties on Bexar County warrants must be assigned counsel from the Managed Assigned Counsel Program’s Panel of qualified attorneys within one working day of receipt of the request for counsel.

5. If a defendant is arrested in Bexar County based on another county’s warrant, the Managed Assigned Counsel Program will assign an attorney, using the approved algorithm, to represent the defendant in any matter under the Texas Code of Criminal Procedure Chapter 11 (Habeas Corpus) or 17 (Bail) if, on the eleventh day after arrest, the defendant is still in Bexar County’s custody.

6. By standing order, the Bexar County Public Defender's Office is appointed to represent indigent arrested persons and/or arrested persons who suffer from a mental illness during the arrested person's appearance before the magistrate at the Central Magistration (CMAG) facility, if the arrested person requests counsel, does not already have counsel on record, and financially qualifies.? The appointment of the Bexar County Public Defender's Office shall be for the limited purpose of representation of the mentally ill and/or indigent arrested person during the magistration process and related solely to the determination of the bond and the conditions of the bond for the arrested person.? The limited appointment of the Bexar County Public Defender's Office is concluded upon the termination of the magistration proceedings and no motion to withdraw is necessary.? At that point the indigent arrested person shall be assigned counsel according to the procedures outlined in the Managed Assigned Counsel Plan of Operations, to represent that person for the remainder of the case.

7. Procedures for Assignment of Counsel:

1. Pursuant to Article 26.04 of the Texas Code of Criminal Procedure, the assignment of counsel to indigent defendants is facilitated through:
   1. Article 26.04 (f-1) - Managed Assigned Counsel: Pursuant to the TCCP Articles 26.04 (a), 26.04 (f-1) and 26.047 the criminal court judges by majority vote authorized the presiding criminal court judge to petition the Bexar County Commissioners Court to apply for a grant from the Texas Indigent Defense Commission to establish a Managed Assigned Counsel Office to administer the assignment of criminal cases to qualified attorneys for the Bexar County District, County, and Juvenile Courts. The Director of the Managed Assigned Counsel Office shall serve as the Program Administrator for the grant and implementation of the plan.
   2. With respect to the foregoing appointments which are in accordance with the Bexar County Public Defender’s Office plan:
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   7. The Public Defender’s office is given priority to receive criminal assignments in accordance with Article 26.04, subsection (f) of the Texas Code of Criminal Procedure. The appointing authority shall consult with the chief public defender to determine what percentage of cases to assign to the public defender’s office. Absent a finding of good cause, the Managed Assigned Counsel shall appoint the public defender’s office accordingly.?
   8. The Public Defender’s Office 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.

8. If at any time after magistration the arrested person decides that he/she would like to request assigned counsel, he/she may contact the Bexar County Pretrial Services Department or the court coordinator of the court where the case is set, to be interviewed and provided with the necessary forms.? If qualified, the arrested person will then be assigned counsel as provided by the Managed Assigned Counsel plan of operations.

9. Regarding Motions to Revoke Probation, Motions to Enter an Adjudication of Guilt,?or in the case of?Appeals that are not referred to the?Bexar County?Public Defender’s Office, assignments will be made from a panel of qualified attorneys in the same manner as other criminal cases.

10. At any time, a defendant may appear before the judge presiding over the defendant’s case and request a county assigned attorney, and the judge has the discretion to contact the Trial Division Chief of the Managed Assigned Counsel Program to assign a qualified?attorney.?The assigned attorney or member of the Bexar County Public Defender's Office must be qualified to take that degree of offense.?The Managed Assigned Counsel Program may assign any qualified, willing attorney. "Qualified" in the context of this rule means that the particular individual attorney filled out the appropriate application form, met all of the qualifying assignment requirements, and was approved by the Managed Assigned Counsel Program to participate in the assignment panel. ?

1. If a defendant appears in court without counsel for a charge which may result in confinement, the Judge shall not encourage the defendant to engage in conversation with the attorney for the State without first advising the Defendant of his right to counsel. ?

11. Each attorney assigned under this subsection to represent the defendant shall represent the defendant through the investigation, pre-trial, and trial phase of the criminal case.

1. If an attorney files a motion for good cause, and the court orders the attorney to withdraw from the case, they are excused from the aforementioned obligations to continue representation. In this event, replacement counsel will be assigned.
2. Before withdrawing as counsel for the defendant after trial or the entry of a plea and sentencing where the right to appeal was not waived, the assigned trial attorney shall advise the defendant of the defendant’s right to file a motion for new trial and a notice of appeal.??If the defendant wishes to pursue?a motion for new trial and/or notice of appeal, it is?the trial attorney's responsibility to file the notice and pursue the motion for new trial.? If no motion for new trial is filed, it?is still the trial attorney's responsibility to file a notice of appeal if the defendant so wishes.? Once these steps have been completed, the assigned trial attorney's representation of the defendant is concluded, and a motion to withdraw should be filed.??The trial court may then appoint the Bexar County?Public Defender’s Office on the appeal.??If the?Bexar County Public Defender's Office?refuses the appointment pursuant to the Code of Criminal Procedure Article 26.044(j), the Managed Assigned Counsel Program may assign a lawyer from the next five names on the Appellate Panel. In specific instances of advanced complexity, the Managed Assigned Counsel Program may assign any qualified, willing attorney regardless of whether the attorney’s name is among the next five names on the appropriate panel.

1. The following method shall be used to assign attorneys from the approved panels to represent indigent defendants:

1. After the defendant has been interviewed by the Pretrial services Clerk and the computer has completed the calculation and determined that the defendant meets the standard of indigency used in Bexar County, the Pretrial Services Clerk will used the Managed Assigned Counsel Program’s approved algorithm to determine the next attorney’s name on the appropriate panel.
2. The computer will select and provide an attorney’s name using the Managed Assigned Counsel Program’s approved algorithm to the Pretrial Services Clerk, after analyzing the individual requirements of the request and utilizing the following filters:
   1. Language
   2. Degree of Offense
   3. Availability of Attorney
   4. Date of Last Assignment
3. The attorney’s name selected by the computer to be assigned to the case should be one that meets any language requirement (if possible), is qualified to take assignments for that type of offense, is not unavailable, and has the oldest date of last assignment. This will result in an unbiased system of rotation.
   1. If the defendant has an attorney already assigned on a prior pending or concluded matter, the same attorney will be assigned on the new matter so long as they are qualified on the appropriate panel.
4. At any time, a defendant may appear before the judge presiding over the defendant’s case and request an assigned attorney, and the judge shall contact the Managed Assigned Counsel Program or a qualified member of the Bexar County Public Defender's Office to assign representation to that defendant. The attorney or member of the Bexar County Public Defender's Office must be qualified to take that type of offense. "Qualified" in the context of this rule means that the particular individual attorney filled out the appropriate application form, met all of the qualifying assignment requirements, and was approved by the Managed Assigned Counsel Program.

5.25 Attorney Fee Schedule and Compensation of Assigned Attorneys

1.             Other than the Bexar County Public Defender’s Office, counsel assigned to represent a defendant in a criminal proceeding, including a habeas corpus hearing, shall be paid a reasonable attorney’s fee for performing the following services, based on the time and labor required, the complexity of the case, and the experience and ability of the assigned counsel:

1.              Time spent in court making an appearance on behalf of the defendant as evidenced by a docket entry, time spent in trial, and time spent in a proceeding in which sworn oral testimony is elicited;
2.              Reasonable and necessary time spent out of court on the case, supported by any documentation that the court requires;
3.              Preparation of an appellate brief and preparation and presentation of oral argument to a court of appeals or the Court of Criminal Appeals; and
4.              Preparation of a motion for rehearing.

2.             All payments shall be paid after Managed Assigned Counsel Program approval, in accordance with the appropriate fee schedule and guidelines, with copies sent to the Commissioners Court of Bexar County.

3.             This fee schedule takes into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates.

4.             A voucher form and in-court and out-of-court itemization forms will be provided for assigned counsel to itemize the types of services performed. The assigned counsel must submit this voucher to the Managed Assigned Counsel Program over the case for which the assigned attorney seeks compensation.

5.            An attorney who receives an assignment through the system outlined in this plan or through any other means is not allowed to receive any money or anything else of value for representing the accused, other than what is paid to them by the county, as approved by the Managed Assigned Counsel Program in writing.

6.              If the Managed Assigned Counsel Program disapproves the requested amount of payment, they shall make written findings stating the amount of payment that is approved and each reason for approving an amount different from the requested amount.

7.            Regardless of whether an attorney’s voucher has been reviewed by the voucher recommendation committee or not, an attorney whose request for payment is disapproved may appeal the disapproval by filing a motion with the presiding judge of the administrative judicial region, as provided under Article 26.05(c) of the Code of Criminal Procedure. This motion must be filed within twenty-one (21) days from the date the attorney receives notice of the disapproval of payment.

8.             On the filing of a motion, the presiding judge of the administrative judicial region shall review the disapproval of payment and determine the appropriate amount of payment. In reviewing the disapproval, the presiding judge of the administrative judicial region may conduct a hearing. Not later than the 45th day after the date an application for payment of a fee is submitted, Bexar County shall pay to the assigned counsel the amount that is approved by the presiding judge of the administrative judicial region and that is in accordance with the adopted fee schedule.

9.            Bexar County will reimburse assigned attorneys in the event they incur reasonable investigation and expert witness expenses incurred on behalf of an indigent defendant as provided under Articles 26.05(d) and 26.052(f) through (h) of the Code of Criminal Procedure, in accordance with the adopted fee schedule.

10.              The Bexar County Public Defender's Office shall be compensated through its budget as approved by the Bexar County Commissioners Court.