Montgomery County Court Plan
Preamble
10/8/2020

I.    PREAMBLE

 

The County Court at Law Judges adopt these rules and these rules are applicable to all attorneys certified to handle misdemeanor criminal appointments. The Office of Court Administration (OCA) shall provide a copy of these rules and procedures to each attorney accepted on the court appointment list.  

 

            The OCA shall manage the appointment system via the Fair Indigent Defense Online system adopted by the county.  The Fair Indigent Defense Online (FIDO) will be the only method to determine indigence, appoint attorneys, submit, approve, and send vouchers for payment in criminal cases.  The Director will ensure that all indigents in need of appointed counsel are assigned an attorney in a timely manner. The Director or Designee will monitor compliance with the requirements and regulations of the Court appointment system.

 

II.        APPOINTMENT DESIGNEE

 

The Board of Judges (BOJ) shall appoint one or more Appointment Designees (AD).  The AD will be under the supervision of the OCA. The Board of Judges shall determine the duties, responsibilities and compensation of the AD.

Prompt Magistration
10/8/2020

III.       PROMPT APPEARANCE BEFORE A MAGISTRATE

 

  1. The law enforcement officer making the arrest and any officer who later has custody of a defendant shall ensure that the person is taken before a magistrate without unnecessary delay, but not later than 48 hours after the person is arrested, for proceedings under Article 15.17 of the Texas Code of Criminal Procedure.

 

  1. For defendants appearing before a magistrate in the Montgomery County Jail, the Office of Indigent Defense will ensure assistance in completing an Affidavit of Financial Condition for the arrestee prior to the magistrate court. If defendant requests court appointed attorney at the time of magistration, the Office of Indigent Defense certifies the accuracy of their Affidavit for the purpose of determining eligibility for court appointed counsel.

 

  1. If the arrested person does not speak and understand the English language or is deaf, the Magistrate shall ensure that the information and assistance are provided with the assistance of an interpreter consistent with Articles 38.0 and 38.31 of the Texas Code of Criminal Procedure.

 

  1. Persons in custody brought before a Magistrate shall be informed by the Magistrate of the right to request counsel under Article 15.17 Subsection (e) and (f) of the Texas Code of Criminal Procedure.A record will be made of these proceedings and shall be preserved as required by Article 15.17.


  1. A defense attorney assigned to the Magistration and Bail Review hearing will be present at the Magistration to assist the defendant through the hearing.

 

  1. The appointment of counsel at the Article 15.17 hearing shall be for the limited scope of representation of the indigent arrested person during the magistration process and related solely to probable cause, the determination of bail, and bail conditions for arrested persons. The arrested person shall be appointed counsel for the remainder of the case according to the procedures set in this indigent defense plan. The limited scope appointment is concluded upon the termination of the Article 15.17 hearing, and no motion to withdraw is necessary

 

  1. If the defendant is not satisfied with the bail amount given by the magistrate, the defendant may request a bail re-hearing at the 15.17 hearing. This re-hearing will occur the next working day.

 

  1. 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’s form and any other forms requesting the appointment of counsel to the OCA without unnecessary delay, but no later than 24 hours after the person arrested requests appointment of counsel.

 

  1. If the magistrate is authorized to appoint counsel, the magistrate shall make a determination of indigence and appoint counsel if the defendant is indigent within one working day after receipt of request for counsel consistent with Article 15.17 Subsection (a) of the Texas Code of Criminal Procedure.

 

10. 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 Office of Indigent Defense will provide the arrestee with the appropriate forms for requesting counsel.  The Office of Indigent Defense 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.  

 

A.        Magistration and Bail Review List

 

Notice of Magistration and Bail Review List

 

1.         The Office of Indigent Defense will email notice of the opportunity, procedure and requirements to apply to be a contract defender to the Criminal Defense Bar, Montgomery County Bar and all current attorneys accepting criminal appointments.  The notification shall inform attorneys of all the requirements for submitting the resume.

 

2.         Attorney Requests for Magistration and Bail Review List. Attorneys must complete and submit a resume to the Office of Indigent Defense. Resume should include the following:

 

                        a.         Name and bar card number

                        b.         Telephone, facsimile and e-mail

c.         Work Experience

                        d.         Education

                        e.         Trial Experience

                        f.          Picture

 

B.        Attorney Qualifications for Magistration and Bail Review List


                        1. Approved by the majority of the Judges

                        2. Trial Experience

                        3.  Special Language Qualification

                        4.  Demonstrate proficiency representing defendants


Indigence Determination Standards
10/8/2020

IV.       INDIGENCE DETERMINATION STANDARDS

 

“Net household income,” means all income of the defendant and spousal income actually available to the defendant. Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); overtime, severance pay, unemployment benefits, disability or workman’s compensation benefits; 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, retirement benefits, or annuities; and income from dividends, interest, rents, royalties, capital gains, periodic receipts from estates or trusts, regular payments from Social Security, veteran’s benefits, food, rent or household expenses received in lieu of wages or as a result of any agreement to share household expenses, tax refunds or compensation for injury. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the defendant has no income or lesser income.

 

“Non-exempt assets and property,” means cash in hand, stocks and bonds, accounts at financial institutions, and equity in real or personal property that can be readily converted to cash, other than assets and property exempt from attachment under state law.

 

”Household.” means all individuals who are actually dependent on the defendant for financial support.

 

  1. A defendant is considered indigent if:

 

    1. The defendant’s net household income does not exceed 125% of the Poverty Guidelines as established and revised annually by the United States Department of Health and Human Services and published in the Federal Register; and

    2. the value of the non-exempt assets and property owned by the defendant does not exceed $2,500.00

     

           2.  Current Residence:  A defendant is considered indigent if the defendant is currently serving a sentence in a correctional institution, is currently residing in a public mental  

                health facility, or is the subject of a proceeding in which admission or commitment to such a mental facility is sought, and has no access to property or assets in excess of the   

                amounts specified above.

     

           3.  Inability to Retain Counsel:  A defendant who does not meet any of the financial standards above may nevertheless be determined indigent if the defendant is otherwise unable

                to retain private counsel without substantial hardship to the defendant or the defendant’s dependents, taking into account the following:

    a. nature of the criminal charge(s),

    b. the 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 defendant and the defendant’s

    dependents,

    e. the defendant’s income, source of income, assets and property owned,

    outstanding obligations, necessary expenses, the number and ages of

    dependents, and

    f. spousal income that is available to the accused.

     

            4.  Indigence Statement:  Defendants who are determined to be indigent and request a court appointed attorney shall sign the Indigence Form containing a statement, swearing

                 that they are unable to hire their own attorney.

           5.  Duration of Indigency:  An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused person’s

                financial circumstances occur.

     

           6.  Factors NOT to be considered in determining indigence:

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

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

     

           7.  Partial Indigency:  If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of 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.

     

           8.  No Request for Attorney:  If a defendant does not request an appointed attorney, the defendant will either sign and date the Probable Cause, Rights, Bail And Attorney Request

                Form, attached hereto as Exhibit “C”.




    Minimum Attorney Qualifications
    10/8/2020

     

    C.        MINIMUM ATTORNEY QUALIFICATIONS

     

    1.                  All appointed attorneys must be approved by a majority of the County Court at Law judges to be placed on the appointment list.

     

    2.                  All attorneys that request and are approved for appointment to each Public Appointment List shall maintain their principal law office in Montgomery County, Texas. All attorneys must disclose the geographic location by city or town and physical address of their principal office.  An attorney shall have only one principal office.

     

    3.                  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 Montgomery County for adult criminal cases 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.

     

    4.                  All attorneys shall reapply biennially for approval to the Public Appointment List(s) and may reapply at any time for a category for which they previously had not applied.  The application renewal date will be July 01, 2015, and on the same day of every other year thereafter.

     

    a.         Trial Category C (Misdemeanor)

     

    1.                  A separate master list will be maintained of attorneys who request and are approved for appointment to all misdemeanor trial cases.

     

    2.                     All attorneys who request appointments in this category must:

    a.                      Be licensed to practice law in Texas;

    b.                     Have completed at least 6 hours of Criminal Law CLE (during  the prior 12 months and;

    c.                      Have tried to verdict or appealed at least one Class AB@ or higher misdemeanor jury trial as 1st or 2nd chair.

     

    b.         Appellate Category C (Misdemeanor)

     

    1.                  A separate master list will be maintained of attorneys who request and are approved for appointment to all misdemeanor appellate cases.

     

    a.                   All attorneys who request appointments in this category must:

    b.                  Be licensed to practice law in Texas and

    c.                   Have tried to verdict as 1st or 2nd chair or appealed at least one Class AB@ or higher misdemeanor jury trial, or otherwise establishes proficiency in misdemeanor appellate work.

     

    c.         Special Language Qualificationsand Appointments

     

    1.                  Each attorney who speaks more than one language, or who signs, may voluntarily note this fact when requesting appointment to any Public Appointment List.

    2.                  The magistrate or AD shall appoint an attorney that is capable of communicating in a language understood by the Defendant.

     

     

     

    Prompt Appointment of Counsel
    10/8/2020

    H. PROMPT APPOINTMENT OF COUNSEL

    a.      Appointment of Counsel

    1.      At the Magistrate’s Probable Cause hearing (which shall be within 48 hours of arrest), and at any time thereafter while charges are pending against the defendant, each defendant shall be provided the opportunity to request court appointed counsel, if indigent. When a Defendant requests appointed counsel, the magistrate or Judge may assist, or refer the defendant to the AD for assistance, in completing the Attorney Request Form and the Application for Court Appointed Attorney, attached hereto as Exhibit “D” The magistrate, Judge or AD may question the defendant under oath regarding the defendant’s financial resources in lieu of, or in addition to the Application for Court Appointed Attorney. The magistrate and the AD may be assisted by a representative of the Montgomery County Collections Department in the determination of indigence.

    2.      Where the defendant is incarcerated, the magistrate shall, no later than 24 hours after the defendant requests appointment of counsel, transmit or cause to be transmitted to the OCA or Judge the forms requesting the appointment of counsel. Upon a determination of indigence, and no later than the end of the first working day after the date on which the OCA or the Judge receive the defendant’s request for appointed counsel, the magistrate, Judge or AD shall appoint an attorney from the appropriate Public Appointment List using a system of rotation. The magistrate, Judge or the AD shall appoint the first attorney from the Public Appointment List in the order in which the attorney’s name appears on the List, unless the Court makes a finding of good cause on the record for appointing an attorney out of order. Good cause may include:

    a.      the defendant requesting counsel does not understand English, in which case the judge will appoint the lawyer whose name appears in next order and speaks the client’s language, if one is available;

    b.      the defendant has an attorney who has already been appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter, unless the attorney is not on the applicable list for the type of offense involved in the current case;

    c.      other good cause exists for varying from the list.

    3.      Any defendant who remains unrepresented after 3 days of confinement shall be appointed counsel.

    4.      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.

    5.      Defendants not represented shall be advised of the right to counsel and of the procedures for obtaining counsel.

    6.      If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within 1 working day of the county’s receipt of the request for counsel.

    7.      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 the county’s custody.

    8.      Where the defendant has both felony and misdemeanor charges, the magistrate, Judge or the AD shall appoint one attorney for all charges from the List for the most serious offense. In the event a Defendant requests an attorney who is not qualified for the category of offense with which the Defendant is charged, the Defendant must sign and file Defendant’s Motion to Appoint Attorney on Higher Category Case, attached hereto as Exhibit “I.” The magistrate, Judge or the AD shall sign an Order Appointing/ Denying Attorney, attached hereto as Exhibit “E.” The Defendant shall be required to sign a Sworn Affidavit of Financial Inability to Hire Counsel, attached hereto as Exhibit “J.”

    9.      The magistrate, Judge or the AD shall notify the attorney of the appointment by the most expeditious means available and provide counsel with a copy of the Order Appointing Counsel and the last known location of the Defendant. If the attorney does not accept the appointment, the attorney shall immediately advise the magistrate, Judge or the AD and the above rotation process shall be repeated.

    Attorney Selection Process
    10/8/2020

    V.       ATTORNEY SELECTION PROCESS


    A.        ROTATION


    1.         The appointing authority shall appoint an attorney from the applicable Public Appointment List as described in Section B, below.

     

    2.         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.

     

    B.     PUBLIC APPOINTMENT LISTS

    The County Courts at Law in Montgomery County, Texas will maintain three Public Appointment Lists of attorneys qualified to represent indigent defendants as follows:

     

                1.  Trial Category C for all misdemeanors;

    2.  Appellate Category C for all misdemeanors;

    3.  Special Language for all misdemeanors

     

             Attorneys who desire to represent indigent persons shall file with the Board of Judges (1) a sworn Application To Be Placed On Public Appointment List For Montgomery County to have his/her name approved on one or more of the Public Appointment Lists, attached hereto as Exhibit “A”, (2) an Attorney Certification of Knowledge Of Local Rules For The Timely and Fair Appointment of Counsel for Indigent Defendants, attached hereto as Exhibit “B” and (3) a sworn Affidavit for Completed Training on Fair Indigent Defense Online System, attached hereto as Exhibit “O".

     

    From time to time, the County Court at Law Judges shall meet and approve such Applications of eligible attorneys for each list, and the Administrative County Court At Law Judge shall sign the Order of Approval/ Disapproval that is made a part of the Application To Be Placed On Public Appointment List For Montgomery County. A copy of each public appointment list shall be made available to the public upon request to the Appointment Designee.

    Fee and Expense Payment Process
    10/9/2020
     

    VI.       COMPENSATION OF COUNSEL FOR MISDEMEANOR CASES


    A.        Rates

    Appointed counsel shall be compensated for all time reasonably necessary to adequately represent the defendant on either an hourly rate basis or flat fee basis as provided below:

     

    1.        Flat Fee Schedule

                 Unless paid in accordance with the Hourly Fee Schedule described below, appointed counsel shall be paid a Flat Fee Rate as follows:

     

    a.         Obtaining jail release                                                  $ 50

    b.         Plea/Dismissal                                                             $350

    c.         Plea/Dismissal for additional cases                            $ 50

    (each additional case)

    d.         Evidentiary hearing                                                     $100

    e.         Trial preparation                                                         $500

    (paid only if case is disposed by trial, or upon showing of good cause)

    f.          Bench trial                                                                   $275 per.  day

    g.         Jury Trial                                                                     $325 per.  day

    h.         Appeal                                                                         $1500

    2.         Hourly Rate

     

    In the event that payment pursuant to the Flat Fee Schedule or the Daily Appointment rate will not fairly compensate Appointed Counsel, due to unusual legal or factual complexities involved in the representation of Appointed Counsel’s client, then in said event, Appointed Counsel shall be compensated in accordance with the following Hourly Rate Fee Schedule:

    a.         Out-of-Court                                                               $90/hour

    b.         Non-trial Court appearance                                         $90/hour

    c.         Trial                                                                             $90/hour

     

    Hourly rates shall be paid for performing the appropriate statutory service according to the criteria defined in TEX CODE CRIM PROC. ART. 26.05(a).

     

    In order to receive payment pursuant to the Hourly Rate Schedule, Appointed Counsel must certify in writing that the case was either  factually or legally, unusually complex.  Appointed counsel must further specify in writing the specific and principled reasons that the case was unusually complex and submit a detailed time sheet.

     

    1. Daily Appointment Rate

                An attorney receiving a Daily Appointment shall be paid a day rate of $1,000.00 for the first five defendants appointed at the Daily Appointment docket.  (The Court shall not assign to the same attorney more than five defendants at the same Daily Appointment docket).  Immediately upon conclusion of the Daily Appointment docket, the attorney shall submit the Request for Payment for Services Rendered as Court Appointed Counsel (Set Rates) and shall further attach to the payment request a Daily Appointment Log (Exhibit “M”) and the Orders Appointing Attorney.  In the event final disposition of the case does not occur at the Daily Appointment docket, then in addition to the $200.00 for representing the defendant, counsel shall be entitled to additional payment as follows:

     

    a.         Trial preparation                                                         $500

    (paid only if the case is disposed by bench or jury trial, or approved by Judge upon a showing of good cause)

    b.         Bench trial                                                                   $275 per ½ day

    c.         Jury Trial                                                                     $325 per ½ day

    d.         Appeal                                                                         $1500

     

     

    In the event Appointed Counsel requests payment in addition to the Daily Rate as provided above, then Appointed Counsel shall submit a Request for Payment for Services Rendered as Court Appointed Counsel (Set Rates) and shall indicate on said Request for Payment that the appointment originated as a Daily Appointment.

    In the event that payment provided above will not fairly compensate counsel receiving a Daily Appointment case, due to unusual legal or factual complexities involved in the representation of Appointed Counsel’s client, then in said event, Appointed Counsel shall be entitled to additional compensation in accordance with the Hourly Rate Fee Schedule.  In order to receive additional payment pursuant to the Hourly Rate Schedule, Appointed Counsel must certify in writing that the case was either  factually or legally, unusually complex.  Appointed counsel must further specify in writing the specific and principled reasons that the case was unusually complex and submit a detailed time sheet and also state that the original appointment was pursuant to a Daily Appointment.

    B.        PAYMENTS

     

    1. Request for Payment.

     

    Counsel shall submit their requests for payment via the Fair Indigent Defense Online System.

     

    1. Payment Approved by Court

     

    All requests shall be submitted to the Judge presiding over the proceedings.  The judge shall either approve the amount requested or enter written findings stating the amount the judge approves and each reason for approving an amount different from the requested amount.

     

    1. Appeal of Order to Pay.

     

    Any disapproved fee payment request may be appealed by the appointed counsel to the Presiding Judge of the Second Administrative Judicial Region, as provided by the Fair Defense Act.

     

    1. Expenses

     

    Compensation for reasonable and necessary expenses shall be submitted in the applicable Request for Payment for Services voucher.  All investigation and expert witness expenses require prior court approval.  Procedures consistent with Articles 26.052(f), (g), and (h) of the Code of Criminal Procedure will be adopted for payment of expenses incurred with and without prior court approval, as provided in the Fair Defense Act.

     

    5.         Investigators and Expert Expenses With Prior Court Approval

                Appointed counsel may file with the trial court a pretrial ex parte confidential request for

    payment of investigative and expert witness expenses.  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 is

                     reasonably necessary to assist in the preparation of a potential defense; and

                3.  an estimate of the cost of said investigation/expert.

     

                Expenses incurred without prior court approval will not automatically be reimbursed.  Such expenses shall be reimbursed if the Court determines that they are reasonably necessary and reasonably incurred upon presentation of a claim for reimbursement.

     

    6.         Magistration and Bail Review Block Fee

                Counsel for Magistration and Bail Review shall be paid a Flat Fee Rate for the assigned block as follows:

     

    1. Saturday-Monday$1,000
    2.   Tuesday-Friday$1,000
    Plan Documents
    Montgomery County Court Affidavit of Indigence.pdf (10/7/2015 3:54:24 PM) view
    Montgomery County Court Application to be Placed on Public Appointment List for Montgomery County.pdf (9/20/2017 12:00:49 PM) view
    Montgomery County Court Attorney Application for Appointment.pdf (10/7/2015 3:55:50 PM) view
    Montgomery County Court Attorney Fee Schedule.pdf (10/9/2020 9:37:17 AM) view
    Montgomery County Court Attorney Fee Voucher.pdf (6/16/2015 4:32:22 PM) view
    Montgomery County Court Hourly misd fee schedule.doc (3/25/2011 4:35:40 PM) view
    Montgomery County Court Magistrates Warning Form.doc (11/20/2009 3:16:00 PM) view
    Montgomery County Court Magistrate’s Warning Form.pdf (3/27/2012 2:57:57 PM) view