As required by the Texas Fair Defense Act, the Juvenile Board of Bexar County, Texas approves the following plan for the qualifications of and appointment of attorneys to guarantee effective representation to juveniles whose families may be indigent.

It is the intent of this plan to comply with Section 51.102 of the Texas Family Code, and with applicable provisions of Article 26.04 of the Texas Code of Criminal Procedure.

Terminology

1. “Board” means the Bexar County Juvenile Board.
2. “Judge” means elected District Court Judges trying cases in Bexar County.
3. “GAC” means the Bexar County Juvenile District Courts General Administrative Counsel.
4. “CLE” means Continuing Legal Education.
5. “MAC” means Managed Assigned Counsel.
6. “TJJD” means the Texas Juvenile Justice Department.
7. “SABA” means San Antonio Bar Association.
8. “Panel Attorney” means attorneys who have been approved by the Board to receive court appointments in the Bexar County Juvenile District Courts.
9. “SBOT” means State Bar of Texas.

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.

If the child is detained, the court must hold a detention hearing by the second working day, or first working day if juvenile was detained on Friday or Saturday(§54.0l(a). Tex. Fam Code).

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.

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.

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.

Upon notification that their child has been detained, the person responsible for the child's support will be notified of the child's right to counsel, and to be represented by court-appointed counsel if the person responsible for the child's support will be financially unable to employ an attorney to represent the child. If the person responsible for the child's support wishes to be interviewed to determine if they qualify for court­ appointed counsel for their child, he/she/they will be referred to the Juvenile Courts' pre-trial services personnel for completion of the financial information questionnaire (see Form# 1- Pre Trial Services Financial Data). The person responsible for the child's support will be required to swear to the accuracy of the information provided and sign a statement so stating (see Form #2 Indigent Attorney Appointment Affidavit). Appointment of counsel shall not be made without the cooperation of the person responsible for the child's support in completing the required financial information questionnaire. If the person responsible for the child's support does not wish to provide the information required to determine eligibility for court-appointed counsel, they will be asked to sign an affidavit so stating, and will be informed that their refusal to provide this information is an indication to the Court that they do not wish to seek court-appointed counsel for their child, but will instead retain counsel to represent their child at all court proceedings(see Form #3- Statement of Responsible Party Declining to be Interviewed for Court-Appointed Counsel for their Child) . The determination of indigence will be made upon the submission of the financial information obtained in the financial interview into the computer system. The system will have guidelines, established county-wide for the determination of indigence, pre-programmed (see Form #4- Guidelines to Determine Indigence).

In order to determine whether a child's parent(s) or other person(s) responsible for the child's support is indigent, several factors will be considered., [T]the child's parent(s) or other person(s) responsible for the child's support's "necessary expenses" will be calculated. Once that figure is determined it will be subtracted from the child's parent(s) or other person(s) responsible for the child support's gross income (including spousal income if  applicable). Once that number, which for the purposes of this determination will be called the "net income," is determined that figure will be used to determine if the child's parent(s) or person(s) responsible for child's support is (are) indigent based on the income for one person under the Federal Poverty Guidelines. "Necessary Expenses" should include: rent or mortgage; food/groceries; car payment; car insurance; utilities (water, electric, phone).

QUALIFICATIONS FOR ATTORNEYS TO RECEIVE COURT APPOINTMENTS IN BEXAR COUNTY JUVENILE DISTRICT COURTS

Prompt Appointment of Counsel

 Unless the court find 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. If the child was not represented by an attorney at the detention hearing and a determination was made to detain the child, the child shall immediately be entitled to representation by an attorney

In cases in which the child is released from custody after the initial intake investigation, upon service of a petition, the person responsible for the child's support will be informed of the child's right to counsel, and to be represented by court-appointed counsel if the person responsible for the child's support will be financially unable to employ an attorney to represent the child. If the person responsible for the child's support wishes to be interviewed to determine if they qualify for court-appointed counsel for their child, he/she/they will then be referred to the Juvenile Courts' pre-trial services personnel to complete the financial information interview, so that counsel can be appointed on or before the 5th working day after the petition is served.

If a child is already on judicial probation and a motion to modify is filed that seeks either revocation with commitment to the TJJD or modification to require confinement in a secure local facility, then the person responsible for the child's support will be informed of the child's right to counsel, and to be represented by court-appointed counsel if the person responsible for the child's support will be financially unable to employ an attorney to represent the child. If the person responsible for the child's support wishes to be interviewed to determine if they qualify for court-appointed counsel for their child, he/she/they will then be referred to the Juvenile Courts' pre-trial services personnel to complete the financial information interview, so that counsel can be appointed on or before the 5th working day after the motion to modify is filed.

The above described process for the appointment of counsel is applicable to those cases in which the child appears without a parent or whose parent or other person responsible for the child's support requests an attorney at the times enumerated above. If the child, parent, or other person responsible for the support of the child has not previously requested a court-appointed attorney, the party so requesting can be sent to pre-trial services for an interview. As an alternative, the Judge of the Juvenile Court can appoint an attorney to represent a child in a particular case in the interest of justice. If so appointed, the Judge must place the rationale for said appointment on the record. If at any time, the Court determines that the parent or person responsible for the support of the child is financially able to employ an attorney to represent the child or will not cooperate with the Juvenile Courts' pre-trial services personnel in submitting the required financial information to determine indigence, the Court shall order that person to employ an attorney to represent the child.

Attorney Selection Process

I.               Automated Attorney Selection Process

Bexar County will compile an attorney data bank, which will be comprised of attorneys who apply to take court-appointed cases, who meet the above-referenced qualifications and who are approved by the Juvenile Board of Bexar County to be included in the said data bank. This data bank will operate as the "list" from which court-appointed counsel will be selected. The computer will use a rotational process to select an attorney for each case in which it is determined that the child requires the services of court-appointed counsel. In making the selection of an attorney, the computer will use several different programmed filters, including, qualifications, language requirements, date of most recent appointment, attorney availability, pending cases with appointed counsel, etc.

The system will use the guidelines, established county-wide for the determination of indigence, (see Form# 4) pre-programmed, which, when reached, will trigger the computer system to select an attorney from the list of attorneys requesting court-appointed cases to represent the child in that particular proceeding. Once the attorney has been selected, the attorney's name will be placed at the bottom of the list. Upon selection by the computer, the attorney will receive instantaneous notification of the appointment by both e-mail and fax. The notification will include the name, address/location of the child, phone number of the child, as well as the SID number, Cause number, and court and/or detention hearing date if applicable. Attorney information will be added to the parties page of the case in Odyssey. This will indicate that the attorney has been appointed to represent the child. The child will receive a print out with the name, address and phone number of the appointed attorney.

II.            Manual Attorney Selection Process

Bexar County will use a manual attorney selection process when the automated attorney selection process is unavailable. The manual system is comprised of three appointment lists that list attorneys who have been approved by the Board to take court appointed cases. Attorneys are listed alphabetically by last name in each list. Pre-Trial Services personnel will use a rotational process to select an attorney from one of the lists when it is determined that the child requires the services of a court-appointed attorney. In making the selection, the manual attorney selection process considers: qualifications, date of most recent appointment, attorney availability, a child’s previously appointed counsel, etc. 

The manual attorney selection process will use guidelines, established county-wide for the determination of indigence (see Form #4 – Financial Data Report). Pre-Trial Services personnel will input the financial data into an Excel Spreadsheet that automatically computes whether a child requires the services of court appointed counsel. If a child requires the services of court appointed counsel, the next attorney on the respective appointment list will be selected. The child and the child’s family will receive a Notice of Appointment containing the appointed attorney’s name and phone number. At the conclusion of the financial assessment, Pre Trial Services will email counsel a Notice of Appointment (see Form #__). In part, the notification will include the name, address/location of the child, phone number, SID number, Cause Number, and court and/or detention hearing date if applicable. Attorney information will be added to the parties page of the case in Odyssey. This will indicate that the attorney has been appointed to represent the child.

III.          Attorney of Record

The appointed attorney shall remain the attorney of record (unless relieved by the court earlier, after a finding of good cause is entered on the record) until charges are dismissed, the allegations against the child have been found to be not true, all post-trial motions are resolved, notice of appeal is perfected, or until relieved by the court or replaced by other counsel. The judge of the Juvenile Court or the Managed Assigned Counsel Office may remove an appointed attorney from a particular case if it is determined at any time during the pendency of the case, that the child is subject to charges for an offense that is of a higher level than that for which the initially appointed attorney is qualified.

At the conclusion of all proceedings in the trial court, including post-trial motions, if an indigent child wishes to file an appeal, trial counsel must assist the child in the filing of the notice of appeal. Once these steps have been completed, the court-appointed trial attorney's representation of the child is concluded. No motion to withdraw is necessary. The trial court will give priority of appointment to the Public Defender's Office (PD) on appeal, pursuant to Article 26.04 Code of Criminal Procedure. If the PD refuses the appointment pursuant to the Code of Criminal Procedure Article 26.044(j), the trial court may then appoint any qualified attorney to represent the child on appeal.

IV.           Caseload Requirements

The Office of Managed Assigned Counsel will monitor attorney caseloads to ensure appointed cases are receiving quality representation and impose maximum caseloads based on the best practices and current evidence-based standards recognized in the indigent defense community. The gravity, nature of the case, and number of retained and appointed cases, both in-county and out-of-county, will be considered, and attorneys will be expected to report their full caseload. The Director assumes the responsibility to utilize proper discretion when this number may fluctuate.

Caseloads may be reduced according to an attorney's preference (for example, the attorney may request fewer appointments due to preference or a planned vacation), lawyer experience, or for any other reason that may cause the attorney's caseload to become unmanageable. Various scenarios arise where this threshold is deviated from primarily focusing on the best interest of the client, case outcomes and attorney well-being. The matters that contribute to this are monitored regularly to ensure attorneys on the appointment list are not overloaded and can administer quality representation.

Currently, the best practices and evidence-based standards are reflected by the publication Guidelines for

Indigent Defense Caseloads: A Report to the Texas Indigent Defense Commission.[1] According to the report, caseload maximums should be:

Juvenile Cases - With Investigator Support

230 conduct indicating a need for supervision/misdemeanors, 127 non-determinate sentence/non-certification felonies,

36 determinate sentence/certification felonies, or an equivalent combination of cases.

Juvenile Cases - Without Investigator Support

210 conduct indicating a need for supervision/misdemeanors, 108 non-determinate sentence/non-certification felonies,

30 determinate sentence/certification felonies.

Fee and Expense Payment Process

COMPENSATION OF COURT APPOINTED COUNSEL

The Fee Schedule for the Juvenile District Courts is set out as Form #8. The fee schedule may be temporarily amended by agreement of the judges of the District Courts giving preference to Juvenile matters and sitting as Juvenile Courts. Any temporary changes to the fee schedule will be made permanent by the ratification of the Juvenile

Board at the next regular Board meeting. A copy of the pay voucher is included as Form# 9. Should the Judge of the Court in which a particular case has been placed wish to reduce the amount paid to the attorney for the case, from the amount submitted on the voucher, the rationale for the reduction must be made a part of the record. A copy of a standard form for that purpose is included as Form #10.

GUIDELINES FOR SUBMISSION AND PAYMENT OF VOUCHERS

1.     No claim will be paid unless properly submitted within one year of final disposition.

 2.    An itemization sheet must be attached showing detailed hours worked if the attorney is being paid on an hourly basis. Vouchers should be itemized on ¼ of an hour basis.

3.     If an attorney chooses to be paid a flat fee for a case, no additional compensation, other than fees for initial detention visit and detention hearings will be paid.

4.    For multiple cases, including petitions, MTMs, cases taken into consideration, and/or any combination of these, the attorney may choose to submit an itemized voucher or be paid a flat fee for the highest degree case charged by said petition(s) or motion(s).

5.    For a petition with multiple counts, the attorney may choose to submit an itemized voucher or be paid a flat fee for the highest degree count within that petition.

6.    A voucher combining hourly itemizations and flat fees on multiple cases/multiple counts will not be approved. An attorney must submit a voucher based either on a flat fee or hourly itemization of time spent handling the cases, and no combination of the two will be approved.

7.    If the respondent has only one case on the docket, which is non-suited, the attorney will be paid for the dismissal on an hourly basis only. The case must have actually been filed to be paid as a dismissal. A maximum of 4 hours will be paid on any dismissal of a case, unless prior approval is received from the Court.

8.    When an appointment is made on an appeal, it is expected that the attorney receiving the appointment and signing the voucher actually did the research and wrote the brief. If another person assisted the attorney of record, the voucher must reflect that person's name, the work performed by that person, and the amount, if any, that person was paid or promised for their services.

9.    A copy of your brief must be submitted with your voucher for payment on appeal.

10. 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 expenses will not be approved. When possible, prior court approval should be obtained before incurring expenses for investigation and for mental health and other experts.

11. When it becomes necessary for the Court to appoint an attorney to advise and counsel a witness whose own testimony might subject that witness to potential criminal liability, counsel will be entitled

to compensation at the hourly rate which would be payable if counsel had been appointed to represent the respondent in the case on trial.

12.  If the County Auditor detects simple mathematical errors in a pay voucher, they will compute the voucher and pay it out based on their calculations.

13.  The Court has discretion to reduce a voucher submitted for payment based on work product not reflecting the amount of time submitted or expended. If the Court to which a pay voucher is submitted for payment, disapproves the requested amount for payment, the Court shall make written findings stating the amount of payment that the Court approves and each reason for approving an amount different from the requested amount. An attorney who disputes the reduction of a pay voucher or who has not had their voucher acted upon within 60 days of submission may choose to have the voucher presented to a peer review committee, or may appeal the disapproval or failure to act by filing a motion with the presiding judge of the administrative judicial region in accordance with Article 26.05(c) of the Code of Criminal Procedure.

14. All work and visits submitted for payment must have actually been done by the attorney submitting the voucher.

15.  In accordance with Article 26.05(c) of the Code of Criminal Procedure, this fee schedule takes into consideration reasonable and necessary overhead costs.

Investigative and Expert Expenses.

The Bexar County Managed Assigned Counsel Office will maintain a current list of available Investigators, Experts, and Mitigation specialists that an attorney may request to aid in a case.

Counsel appointed in a non-capital case shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior court approval shall be reimbursed, according to the procedures set forth below. When possible, prior court approval should be obtained before incurring expenses for investigation and for mental health and other experts.

Procedure With Prior Court Approval:

Appointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of investigative or expert 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 that the services of an expert are reasonably necessary to assist in the preparation of a potential defense; and

(3)  an itemized list of anticipated expenses for each investigation or each expert.

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:

(1) state the reasons for the denial in writing;

(2)  attach the denial to the confidential request; and

(3)  submit the request and denial as a sealed exhibit to the record.

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 expenses will not be approved.

See, Articles 26.05(d), 26.052(f), (g) & (h), Code of Criminal Procedure. §51.10 (i) Family Code

 ***Pay vouchers will not be approved for work on any case for which the appointed attorney is not qualified to represent the child, unless the attorney has received prior approval from the judge in whose court the case has been set.

 [1] [1] Dottie Carmichael et al., Guidelines for Indigent Defense Caseloads: A Report to the Texas Indigent Defense Commission, TEXAS A&M UNIVERSITY (2015).