PROMPT DETENTION HEARING FOR JUVENILES

A.    A child taken into custody must either be brought to a juvenile processing office without unnecessary delay where they may not be detained for longer than six hours pursuant to §52.025, Family Code, or another disposition authorized by §52.02, Family Code, including referral to the office designated by the juvenile board as intake for the juvenile court.  The intake officer shall process the child according the requirement of §53.01, Family Code, and shall also inform the child and the child’s parents of the right to appointed counsel if they are indigent and provide a form for the purpose of determining eligibility for appointment of counsel. If the child is not released by intake, then a Detention Hearing shall be held not later than the second working day after the child is taken into custody unless the child is detained on a Friday, Saturday or county holiday in which case the detention hearing shall be held on the first working day after the child is taken into custody. 

B.     Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct.  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.

C.     The detention hearing may be conducted without the presence of the child’s parent(s) or other responsible adult(s), however, in these cases the court must immediately appoint counsel or a guardian ad litem to represent the child.

D.    The court shall provide the attorney for the child access to all written matter to be considered by the Court in making the detention decision.

PROMPT MAGISTRATION FOR ADULTS

A.    Arresting Officer Responsibilities

                                i.            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. 

                              ii.            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.

                            iii.             Release of defendants arrested without warrant

1.      A person arrested for a misdemeanor without a warrant and who is detained in jail must be released not later than the 24th hour after arrest, on a bond in an amount not to exceed $5,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

2.      A person arrested for a felony without a warrant and who is detained in jail must be released not later than the 48th hour after arrest, on a bond in an amount not to exceed $10,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure. 

3.      If requested by the state, a magistrate may postpone the release of the defendant for not more than 72 hours after the defendant's arrest if a probable cause determination has not been made, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

B.     Magistrate Duties

                                i.            At the Magistrate’s hearing, the magistrate should determine if accused can speak and understand English, or if the defendant is deaf.

                              ii.            After making such determination, the magistrate shall, in an appropriate manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31, do the following:

1.      Advise the accused of the accusation against him/her and any affidavit filed therewith;

2.      Admonish the accused of:

a.       The right to retain counsel;

b.      The right to remain silent;

c.       The right to have an attorney present during any interview with peace officers or attorneys representing the state;

d.      The right to terminate an interview at any time;

e.       The right not to make a statement and that any statement made by the accused may be used against him/her; and

f.       The right to an examining trial. (felony charges only)

3.      Inform the accused of the right to appointed counsel if the person cannot afford counsel and the procedures for requesting appointment of counsel.

4.      Inquire as to whether accused is requesting that counsel be appointed.

5.      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.

6.      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.

                            iii.            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.

1.      If probable cause has not been determined by a magistrate:

a.       A person arrested for a misdemeanor must be released on bond, in an amount not to exceed $5,000, not later than 24 hours after the person's arrest, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

b.      A person arrested for a felony must be released on bond, in an amount not to exceed $10,000, not later than 48 hours after the person’s arrest, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

c.       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.

                            iv.            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 or denied by the court or magistrate issuing a warrant.

                              v.            The magistrate shall record the following:

1.      The date and time the accused was arrested and the date and time when he/she was brought before the magistrate.

2.      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.

3.      Whether the accused requested appointment of counsel

                            vi.            If the magistrate is not authorized to appoint counsel and if the accused requests appointment of counsel, the magistrate shall transmit or cause to be transmitted the magistrate form and any other forms requesting appointment to the District Judge if the accused is charged with any felony, to the County Court at Law Judge or County Judge if the accused is charged only with a misdemeanor, to the Juvenile Judge or the Alternate Juvenile Judge if the accused is a juvenile and if the accused is arrested on an out-of-county warrant, to that county's contact person. The forms requesting appointment of counsel shall be transmitted without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel.

                          vii.            The appointing court shall make a determination of indigence and appoint counsel if the defendant is indigent within three working days.

                        viii.            If a request for counsel was made at magistration, the appointing court shall forward the magistrate form and any other forms requesting appointment of counsel to the appropriate clerk to be put into the case file.

                            ix.            If a request for counsel was not made at magistration, the magistrate will forward the magistrate form to the clerk to be put into the case file.

                        x.        For persons arrested on out-of-county warrants, the magistrate will ask the defendant if he/she would like to request appointed counsel. The magistrate will record the response, and if counsel is requested, the magistrate will provide the arrestee with the appropriate forms for requesting counsel. The magistrate will ensure assistance in completing the forms at the same time. The forms will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made.  Regarding the appointment of counsel, persons arrested in other counties on local warrants must be appointed counsel in the county that issued the warrant within 1 working day of receipt of the request in counties with a population of 250,000 or more and within 3 working days of receipt of the request in counties under 250,000.  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 the arrest.

A.    Definitions, as used in this rule:

                                i.            In the case of a juvenile "accused" or "defendant" shall mean the juvenile's parent(s) or other person(s) determined responsbiel for the support of the juvenile.

               ii.     “Indigent” means a person who is not financially able to employ counsel.

                            i ii.            “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, 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.

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

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

                            vi.            “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

                                i.            An accused is presumed indigent if 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.

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

1.      the accused’s net household income does not exceed 100% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register;

2.      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

3.      The difference between the accused’s monthly net household income and reasonable necessary expenses is less than $300.00.  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).

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

a.       $2,500;

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

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

                            iv.            An accused who does not meet any of the standards 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. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:

1.      the nature of the criminal charge(s),

2.      anticipated complexity of the defense,

3.      the estimated cost of obtaining competent private legal representation for the matter(s) charged;

4.      the amount needed for the support of the accused and the accused’s dependents; 

5.      accused’s income,

6.      source of income,

7.      assets and property owned,

8.      outstanding obligations,

9.      necessary expenses,

10.  the number and ages of dependents, and

11.  spousal income that is available to the accused.

                              v.            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.

                            vi.            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.

C.     Indigence Proceedings:

                                i.            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.

                              ii.            Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:

1.      Determining if accused is (or is not) indigent; or

2.      Impeaching direct testimony of accused regarding the accused’s indigence.

                            iii.            A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.

                            iv.            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.

1.      An accused’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the accused, the accused’s attorney, or the attorney representing the state. The accused’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:

a.       Evidence of a material change in the accused’s financial circumstances, as a result of which the accused does not meet any of the standards for indigence contained in these rules; or

b.      Additional information regarding the accused’s financial circumstances that shows that the accused does not meet any of the standards for indigence contained in these rules.

2.      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 hours reasonably expended on the case.

                              v.            If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.

A.    Standards for Appointed Counsel

         To be eligible for an appointment list, an attorney must meet the following minimum requirements:

             i.            Requirements:

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

2.      (a)  To be appointed in adult criminal cases, an attorney shall complete a minimum of 6 hours of CLE in the area of criminal law and procedure each year. All attorneys on the appointment list must file a certificate with the District Court Administrator each reporting year attesting to completion of the required CLE or submit documentation showing that the attorney is certified as a specialist in criminal law. Continuing legal education activity completed within a one year period immediately preceding an attorney’s initial reporting period may be used to meet the educational requirements for the initial year. Continuing legal education activity completed during any reporting period in excess of the minimum of 6 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only.

     (b) To be appointed in juvenile cases, an attorney shall complete a minimum of 6 hours of CLE in the area of juvenile law and procedure each year. All attorneys on the appointment list must file a certificate with the District Court Administrator each reporting year attesting to completion of the required CLE or submit documentation showing that the attorney is currently certified in juvenile law by the Texas Board of Legal Specialization.  Continuing legal education activity completed with-in a one year period immediately preceding an attorney’s initial reporting period may be used to meet the educational requirements for the initial year. Continuing legal education activity completed during any reporting period in excess of the minimum of 6 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only.

      (c)  The reporting year will be from September 1st through the following August 31st.

3.      An attorney may 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 5 year(s);

4.   An attorney must reside in one of the counties, and maintain a physical office in one of the counties, of the 143rd Judicial District;

5    An attorney must have a secretary or answering machine or a regularly monitored and functioning answering machine;

6.      An attorney must have a functioning fax machine available 24 hours a day.

7.      An attorney must have the ability to produce typed motions and orders;

                           8.      An attorney shall have on file with the District Court Judge and the Juvenile Boards a completed application to be on the public appointment list, or otherwise be certified by two-thirds majority vote of the judges adopting this plan.

                          9.  An attorney shall notify the District Court Administrator promptly, in writing, of any matter that would disqualify the attorney by law, regulation, rule or under these guidelines from receiving appointments to represent indigent defendants.

                        10.  Attorneys shall submit by October 15 each year the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in each county covered by this plan for adult criminal and juvenile deliquency cases in that county for the prior 12 months that begins on October 1 and ends on September 30.  The report must be submitted through the online form to the Texas Indigent Defense Commission.                                                   

                            ii.            Capital Case Qualification Requirements:

1.      Lead trial counsel must be on the list of attorneys approved by the local selection committee of the Seventh Administrative Judicial Region for appointment as lead counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

2.      Second chair counsel must be on the list of attorneys approved by the local selection committee of the Seventh Administrative Judicial Region for appointment as lead trial counsel or second chair counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

3.      Appellate counsel must be on the list of attorneys approved by the local selection committee of the Seventh Administrative Judicial Region for appointment as appellate counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

                               An attorney shall be approved by a two-thirds vote in writing of the judges approving this plan.                                         

C.     Removal from Appointment List - The judges will monitor attorney performance on a continuing basis to assure the competency of attorneys on the list. An attorney may be removed or suspended, as appropriate, from the appointment list by a majority vote in writing of the judges.

D.    Reinstatement to Appointment Lists

                                i.            An attorney who was removed from the appointment list for non-completion of the required CLE hours may be immediately reinstated upon providing proof that the attorney has completed the required hours so long as the attorney otherwise meets the other qualifications under this Plan.

                              ii.            An attorney who has been removed from the appointment list for any other reason and who wishes to be reinstated must apply through the original application process. 

E.     Duties of Appointed Counsel - Appointed Counsel shall:

                                i.            Make every reasonable effort to:

1.      Contact the defendant by the end of the first working day after the date on which the attorney is appointed; and

2.      Interview the defendant as soon as practicable after the attorney is appointed;

                             ii.            Represent the defendant until:

1.      Charges are dismissed;

2.      The defendant is acquitted;

3.       Appeals are exhausted; or

                           4.      The attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause entered on the record.

                            iii.            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.

ADULT DEFENDANTS

A.    Prompt Appointment of Counsel for Adults

i.          Appointment Authority

If the magistrate is not authorized to appoint counsel and if the accused requests appointment of counsel, the magistrate shall transmit or cause to be transmitted the magistrate form and any other forms requesting appointment to the District Judge if the accused is charged with any felony, to the County Court at Law Judge or County Judge if the accused is charged only with a misdemeanor, and if the accused is arrested on an out-of-county warrant, to that county's contact person. The forms requesting appointment of counsel shall be transmitted without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel.

ii.         Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel. Working day means Monday through Friday, excluding official state or county holidays.  Counsel must be appointed whether or not a case has been filed in the trial court.  A defendant, when facing possible incarceration as a punishment, is eligible to be considered for court appointed counsel on any motion to revoke or adjudicate community supervision and for any appeal as of right.

iii.        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. 

 iv.       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 from: the district clerk or the county clerk.  The defendant may submit these forms to: the district clerk for felonies, and to the county clerk for misdemeanors.  The court will rule on all requests for counsel submitted in this manner.

v.       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.

            vi.       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.

B.     Adult Defendants Appearing Without Counsel - If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement:

i.          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.

ii.         If the defendant has requested appointed counsel, the court may not direct or encourage the defendant to communicate with the attorney representing the state unless the appointing authority has denied the request and, subsequent to the denial, the defendant:

1.         Has been given a reasonable opportunity to retain and has failed to retain appointed counsel; or

2.         Waives or has waived the opportunity to retain private counsel.

iii.        The attorney representing the state may not:

1.         Initiate or encourage an attempt to obtain from the defendant a waiver of the right to counsel; or

2.         Communicate with a defendant who has requested the appointment of counsel, unless the appointing authority has denied the request and subsequent to the denial, the defendant:

a.            Has been given a reasonable opportunity to retain counsel; or

b.            Waives or has waived the opportunity to retain private counsel.

C.            Waiver of the Right to Counsel by Adults

i.           A defendant may voluntarily and intelligently waive the right to counsel.

ii.          A waiver obtained in violation of section IV.B above is presumed invalid.

iii.         If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation.  If the court determines that the waiver is voluntarily and intelligently waived, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings.

“I have been advised this ___ day of ____, 2___, by the (name of court) Court of my right to representation by counsel in the case pending against me.  I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge.  Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me.  I hereby waive my right to counsel. (signature of defendant)”

iv.         A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel.  If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.

JUVENILES

A.            APPOINTMENT OF COUNSEL FOR CHILDREN IN DETENTION

i.          Prior to the detention hearing the court shall inform the parties of the juvenile's right to counsel and to appointed counsel if they are indigent, and of the juvenile's right to remain silent as to the alleged conduct.  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.

ii.         Prior to the initial detention hearing, the court shall provide the attorney for the juvenile with access to all written matter to be considered by the court in making the detention decision.

iii.        If there is no parent or other responsible adult present, the court must appoint counsel or a guardian ad litem for the juvenile.

iv.        If the juvenile is detained, the juvenile has an immediate right to counsel.  If counsel has not already been appointed, the court must either appoint counsel or direct the juvenile's parent or other responsible adult to retain an attorney promptly.  The Court may enforce an order to retain counsel by appointing an attorney to represent the juvenile and requiring that the juvenile's parent or other responsible adult reimburse the court for attorney's fees.

v.         Upon appointment, the court administrator shall notify the appointed attorney by fax or personal contact or mail of the appointment and the scheduled hearing time and date.

vi.        The appointed attorney shall make every reasonable effort to contact a juvenile in detention by the end of the first working day after receiving the notice of appointment or to inform the court that the appointment cannot be accepted.  Contacting the juvenile in detention may be by personal visit (including contact during a detention hearing), by phone, or by video teleconference.  A court-appointed attorney shall contact the juvenile, in one of the ways mentioned above, no less than once every ten working days while the child remains in detention.

vii.       An attorney appointed for a detention hearing shall continue to represent the juvenile until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court.  Release of the juvenile from detention does not terminate the attorney's representation.

viii.      Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.

B. APPOINTMENT OF COUNSEL FOR CHILDREN NOT DETAINED AT INTAKE

i.          If the child is released from detention and if a petition to adjudicate or a motion to modify is filed, the juvenile court will use the financial forms gathered at intake to make a determination of indigence.  If no financial information is available, the juvenile court shall promptly summon the juvenile's parent/guardian/custodian to the court so that financial information may be gathered for a determination of indigence.

ii.         If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:

a.         The date a petition for adjudication or discretionary transfer hearing has been served on the child; or

b.         A motion to modify disposition seeking commitment or placing in secure correctional facility has been filed.

iii.        If the family does not qualify for appointed counsel or if the parent or guardian is not available, and the family fails to provide an attorney, the juvenile court may appoint an attorney in any case in which it deems representation necessary to protect the interests of the juvenile.

iv.        The prosecuting attorney/court clerk shall notify the juvenile court upon the filing of an return of service of a motion to modify or the return of service of a petition for adjudication or discretionary transfer.

A.    Misdemeanor and Non-Capital Felony Case

1. The court will appoint the attorney whose name is first on the Public Appointment List, unless the court makes a finding of good cause on the record for appointing an attorney out of order; provided Greg M. Holly shall not be appointed to represent any Ward County juvenile or any defendant with a pending misdemeanor charge in Ward County or a Ward County defendant who is on community supervision or pre-trial diversion for a Ward County misdemeanor.
2. Good cause may include:

i.           The defendant requesting counsel does not understand English, in which case the judge may appoint the lawyer whose name appears next in order and      speaks the clients’ language, if one is available;

                    ii.          The defendant has an attorney previously appointed on a pending or concluded matter. The same attorney may be appointed to the new matter, unless the attorney is not on the list for the type of offense involved in the current case; or

                    iii.            Other good cause exists for varying from the list.

3.  Once appointed, an attorney’s name will be moved to the bottom of the appointment list. An attorney who is not appointed in the order in which the attorney’s name appears on the list shall remain next in order on the list.

C.     Capital Felony Cases

1.    The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless good cause exists to appoint private counsel.

            i.          If a co-defendant requests appointment of counsel and is determined to be indigent, the court shall appoint counsel pursuant to the standards and procedures stated in this section.

            ii.         If private counsel is appointed to a co-defendant, rather than the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in this section.

2.     The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if:

i.   A conflict of interest exists;

ii. The Office has insufficient resources to provide adequate representation;

iii.  The Office is incapable of providing representation in accordance with the rules of professional conduct;

iv.  Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or

v.   The Office shows other good cause for refusing appointment.

3.   The court shall immediately contact the attorneys appointed by phone, fax, e-mail or in person and notify the attorneys of the appointment and the last known location of the defendant.

D.     Judicial Removal from Case:

                                i.            The judge presiding over a criminal case may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, 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.      Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;

5.      The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;

6.      The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.

                              ii.            Appointment of Replacement Counsel - Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.

A.    Court appointed counsel shall be compensated for all 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 143rd Judicial District.

B.     Payment Process:  No payment of attorney’s fees will be made other than in accordance with the rules set forth below.

                                i.            An appointed attorney shall fill out and submit a fee voucher to the court for services rendered within 15 days of case completion.

                              ii.            The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.

1.      If a judge disapproves a request for compensation, the judge shall make written findings, stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.

2.      An attorney whose request for payment is disapproved or is not otherwise acted on by the 60^th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of the Seventh Administrative Judicial Region.

C.     Payment of Expenses:

                                i.            Court appointed counsel will be reimbursed for reasonable and necessary expenses incurred, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior approval shall be paid according to the procedures set forth below. Whenever possible prior court approval should be obtained before expenses are incurred.

                              ii.            Procedure With Prior Court Approval:

1.      Appointed Counsel may file with the trial court a pretrial ex parte confidential request for advance payment of investigative and expert expenses. The request for expenses must state the below, as applicable:

a.       The type of investigation to be conducted or the type of expert to be retained;

b.      Specific facts that suggest the investigation will result in admissible evidence or that the services of an expert are reasonably necessary to assist in the preparation of a potential defense; and

c.       An itemized list of anticipated expenses for each investigation and/or each expert.

2.      The court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:

a.       State the reasons for the denial in writing;

b.      Attach the denial to the confidential request; and

c.       Submit the request and denial as a sealed exhibit to the record.

                            iii.            Procedure Without Prior Court Approval:  Appointed counsel may incur investigative or expert expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred. Unreasonable or unnecessary expenses will not be approved.