Marion District Court and County Court Plan
Be it remembered that the District and County Judges for Marion County, Texas, hereby adopt, order, establish and order published these countywide procedures, rules, and orders for the timely and fair appointment of counsel for indigent accused persons in Marion County, Texas. This document is the Marion County Indigent Defense Plan that conforms with requirements of statutes passed by the Texas Legislature and approved by the Governor and rules and regulations established by the Texas Indigent Defense Commission.
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.
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.
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.
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.
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.
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 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 of counsel to Justice of the Peace Precinct 1 or 2, whomever is on rotation duty. 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. 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 three working days unless the County has a U.S. Census population over 250,000, in which case counsel shall be appointed within one working day.
viii. If a request for counsel was made at magistration, the appointing authority 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.
For a person arrested on an out-of-county warrant, the magistrate must ask if the person wants to request counsel, inform the person of the procedures for requesting counsel, and ensure the person is provided reasonable assistance in completing the necessary forms for requesting counsel in the county issuing the warrant. [Art. 15.18(a-1), CCP]Requests for counsel made by persons arrested on out-of-county warrants must be transmitted to the appointing authority of the county issuing the warrant within 24 hours of the request being made. [Art. 15.18(a-1), CCP]
Indigence Determination Standards
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
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.
iii. “Household” means all individuals who are actually dependent on the accused for financial support.
iv. “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 any of the following conditions or factors are present:
1. 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;
2. The accused’s net household income does not exceed 125% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register; or
3. 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.
ii. 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.
iii. 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.
iv. 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.
Minimum Attorney Qualifications
A. The Judges hearing criminal cases shall establish attorney
appointment lists for the following categories of offenses. Attorneys may apply
for and be placed on multiple lists. To be eligible for an appointment list, an
attorney must meet the following minimum requirements:
i. Misdemeanor Qualification Requirements:
1. All attorneys on the appointment list must ensure all information
on their application is correct;
2. An attorney must be a licensed practicing attorney and a member in
good standing of the State Bar of Texas;
3. An attorney shall complete a minimum of 6 hours of CLE
in the area of criminal law and procedure each year, 3 hours of CLE in the area
of ethics and 6 hours of CLE in any other legal venue needed by the attorney as
long as the 15 hour minimum as set by the state bar is met. All attorneys on
the appointment list must file a certificate with the county and district
clerk's offices each 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 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 required hours for such period may be applied to the following period’s
requirement. The carryover provision applies to one year only;
4. 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 one year;
5. An attorney must maintain an office capable of receiving email,
fax, and telephone calls;
6. An attorney must have the ability to produce typed motions and
7. An attorney shall notify the court administration office 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.
ii. State Jail and Third Degree Felony Case Qualification Requirements
1. An attorney must meet general requirements for misdemeanor
iii. First and Second Degree Felony Case Qualification Requirements
1. An attorney must meet the general requirements for State Jail and
Third Degree Felony appointments.
2. An attorney must have experience as 1st or 2nd chair
in prior felony case(s) tried to verdict before a jury. The styles and cause
numbers of these cases must be listed in the District Courts appointment
iv. Capital Case Qualification Requirements:
1. Lead trial counsel must be on the list of attorneys approved by
the local selection committee of this 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 this 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 this administrative judicial region for
appointment as appellate counsel in death penalty cases, as provided in Article
26.052, Texas Code of Criminal Procedure.
v. Appeal Qualification Requirements - An attorney must meet at least
one of the following criteria:
1. Be currently board certified in criminal law by the Texas Board of
Legal Specialization; or
2. Have personally authored and filed at least three criminal
appellate briefs or post-conviction writs of habeas corpus; or
3. Have submitted an appellate writing sample approved by a majority
of the judges; or
4. Have worked as a
briefing clerk of an appellate court for a period of at least one year.
vi. By October 15 each year each attorney on the Court Appointed List
for Misdemeanors, Felonies, Felony Appeals and Juvenile cases shall submit to
Marion County (on a form prescribed by the Indigent Defense Commission) the
annual percentage of the attorney's practices time that was dedicated to work
based on appointments accepted in the county under the Texas Code of Criminal
Procedure and Title 3 of the Texas Family Code for the preceding year from
October 1st through September 30th.
B. Approval for Appointment Lists
i. Misdemeanor List – An attorney must be approved by County
ii. State Jail and Third Degree Felony, First and Second Degree Felony
List, Capital Case List, and Appeal List - An attorney must be
approved for each list by District Court Judges.
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 one or more
appointment lists by a majority vote of the judges.
An attorney may be
removed from the appointment list if the attorney:
1. has twice or more
failed to contact or interview clients in a timely manner as required by
Article 26.04(j)(1), Code of Criminal Procedure;
2. has submitted a claim
for legal services not performed as specified in Article 26.05(e), Code of
3. fails to maintain
compliance with each of the appointment list guidelines;
4. has been found by a
court to have provided ineffective assistance of counsel
5. has violated a rule
of professional responsibility;
6. has been convicted of
or received a deferred adjudication for any an offense, other than an offense
punishable by a fine only;
7. is under indictment
or being formally charged with an offense, other than an offense punishable by
a fine only; or
8. has intentionally misrepresented statements
on the application for the appointment list.
An attorney may also be removed from the appointment list for another stated
If a judge or juvenile board member believes that an attorney has violated any
of the provisions listed in the paragraph above, the judge or juvenile board
member may refer an attorney to the board of judges or juvenile board for
removal from the appointment list. The referral must be in writing and shall
clearly state the grounds that form the basis of the referral. No disciplinary
action with respect to the attorney being retained or removed from the appointment
list may be made without such a referra
Upon receiving an attorney referral, the board of judges or juvenile board
shall notify the attorney in writing of the referral and inform the attorney of
the grounds that form the basis of the referral. The notice shall also inform
the attorney of the time and place the board of judges or juvenile board will
meet to discuss the referral and give the attorney an opportunity to respond to
the referral in writing or in person or both.
After the board of judges or juvenile board meets and gives the attorney an
opportunity to be heard, the board of judges or juvenile board shall determine
whether the attorney should:
1. remain on the appointment list at the same
2. moved to an appointment list for indigent
defendants charges with less serious offenses; or
3. be removed from appointment list altogether.
attorney may be removed from the appointment list or moved to an appointment list
for indigent defendants charged with less serious offenses by a majority vote
of the judges or juvenile board members present. In addition, the majority
of the judges or juvenile board members may also vote to require the attorney
to take other rehabilitative measures. Removals from any list may be probated.
For removal or probated removals, the judges or juvenile board members
ordering the removal may require the completing of rehabilitative measures as a
condition of probation or reapplication. An order of removal should state in
the order the earliest date at which the attorney may apply for
reinstatement. An attorney who was removed from an appointment list under
"Grounds for Removal" number 7 or 8 shall be immediately reinstated
upon providing proof that the charges were dismissed or that the attorney
was acquitted, unless other grounds for removal exist against the attorney that
would prohibit reinstatement.
The decision of the board of judges
or juvenile board is final and may not be appealed.
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
E. Duties of Appointed Counsel - Appointed Counsel shall:
i. Notify the court within 72 hours of the receipt of appointment;
ii. 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
iii. 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.
iv. Investigate, either by self or through an investigator, the facts
of the case and be prepared to present any factual defense(s) that may be
reasonably and arguably available to the defendant;
v. Brief the law of the case and be prepared to present any legal
defense(s) that may be reasonably and arguably available to the defendant;
vi. Be prepared to negotiate with the prosecutor for the most
favorable resolution of the case as can be achieved through a plea agreement;
vii. Be prepared to try the case to conclusion either with or without a
viii. Be prepared to file post-trial motions, give notice of appeal and
appeal the case pursuant to the standards and requirements of the Texas Rules
of Appellate Procedure;
ix. Maintain reasonable communication and contact with the client at
all times and keep the client informed of the status of the case; and
x. Advise the client on all matters involving the case and such
collateral matters as may reasonably be required to aid the client is making
appropriate decisions about the case; and
xi. 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.
xii. Manage attorney’s workload to allow for the provision of quality
representation and the execution of the responsibilities listed in these rules
in every case.
Prompt Appointment of Counsel
A. Prompt Appointment of Counsel
i. 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 holidays. Counsel must be appointed whether or not a case has been filed in the trial court.
ii. 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.
iii. 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/. The defense may submit these forms to the appointing authority listed here. (Justice of Peace Pct 1, 114 W Austin, Room 204, Jefferson, TX 75657, 903-665-2392. Justice of Peace Pct 2, 8249 SH49, Jefferson, TX 75657, 903-665-3581.) The court will rule on all requests for counsel submitted in this manner.
iv. Appointment Authority
1. If no case has been filed in the trial court, the appointing authority for misdemeanors is: Justice of Peace Precinct 1 or 2, whomever is on rotation duty,
2. If no case has been filed in the trial court, the appointing authority for felonies is: Justice of Peace Precinct 1 or 2, whomever is on rotaiton duty,
3. If the case has been filed in the trial court, the appointing authority is: Justice of Peace Precinct 1 or 2, whomever is on rotation duty. Persons arrested in other counties on local warrants must be appointed counsel 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. [Art. 1.051(c-1), CCP]Persons arrested on out-of-county warrants must be appointed counsel 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. [Art. 1.051(c-1), CCP]Procedures for defendants to obtain the necessary forms to request counsel and to submit these forms to the appointing authority at any time after the initiation of adversary judicial proceedings. [1 TAC § 174.51]
B. 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. Waived 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
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.
Attorney Selection Process
A. Contract for services. Marion County, acting by and through its Commissioners Court, has entered into an agreement with Jim Finstrom and Tim Cariker, herein called contractors, to provide services to those defendants found to be indigent and eligible for appointed counsel services under this Plan. Indigency appointments are made on a rotation basis between the two attorneys. Copies of said contracts are attached to this standing order as Exhibits A and B.
B. 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 requests an attorney, other than trial counsel, for appeal; or
7. 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.
iii. Additional Grounds for Removal:
An attorney may be removed from being appointed counsel if the attorney:
1. has twice or more failed to contact or interview clients in a timely manner as required by Article 26.04(j)(1), Code of Criminal Procedures;
2. has submitted a claim for legal services not performed as specified in Article 26.05(e), Code of Criminal Procedures;
3. fails to maintain a compliance with each of the appointment list guidelines;
4. has been found by a court to have provided ineffective assistance of counsel;
5. has violated a rule of professional responsibility;
6. has been convicted of or received a deferred adjudication for any offense, other than an offense punishable by a fine only;
7. is under indictment or being formally charged with an offense, other than an offense punishable by a fine only; or
8. has intentionally misrepresented statements on the application for appointed counsel.
An attorney may also be removed from being appointed counsel for any other stated good cause.
C. Attorney Selection for Process for Adults in Capital Cases
i. The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless good cause exists to appoint private counsel.
1. If a co-defendant requests appointment of counsel and is determined to be indigent, the Appointing Authority shall appoint counsel pursuant to the standards and procedures stated in this Section.
2. If private counsel is appointed to a co-defendant, rather the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in the isSection.
ii. The Regional Public Defender for Capital Case may refuse to accept appointment to a case if:
1. A conflict of interest exists;
2. The Office has insufficient resources to provide adequate representation;
3. The Office is incapable of providing representation in accordance with the rules of professional conduct;
4. Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or
5. The Office shows other good cause for refusing appointment.
Fee and Expense Payment Process
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 county.
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.
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 60th 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 this 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.
Marion District and County Court Affidavit of Indigence.doc (10/5/2011 6:43:35 PM) view
Marion District and County Court Attorney Fee Schedule.doc (7/16/2020 12:12:26 PM) view
Marion District and County Court Attorney Fee Voucher.doc (10/5/2011 6:44:55 PM) view
Marion District and County Court Contracts for Indigent Defense Services.pdf (1/29/2022 4:41:16 PM) view
Marion District and County Court Magistrate’s Warning Form.pdf (10/6/2011 2:36:58 PM) view
Marion District and County Court Marion District and County Court Probable Cause Determination.pdf (10/19/2011 8:45:24 AM) view
Marion District and County Court Probable Cause Determination.pdf (11/24/2009 12:17:47 AM) view
Marion District and County Court Waiver of Counsel.doc (11/25/2009 10:49:24 AM) view