Dallas Juvenile Board Plan
The 304th and 305th Juvenile District Courts of Dallas County shall use a system of appointment of attorneys for indigent Respondents, which includes a combination of the Public Defender’s Office and Private Attorneys.
Prompt Detention Hearings
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 listed 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.
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.
Indigence Determination Standards
The child’s indigency is determined by the assets and income of the parent or other person responsible for the support of the child. Parents or other person’s responsible for the support of the child shall be required to complete a financial information sheet provided by the Juvenile Probation Department for filing among the papers of the Court. Financial ability shall be determined from the information required in the document. A parent who fails to file a financial statement is presumed to be not indigent.
The Court in its discretion may conduct an Indigency Proceeding if the parent(s) or other person(s) responsible for the support of the child fails to submit the Financial Information Statement.
The Court can require the child and the child’s parent(s) or other person(s) responsible for the child to respond to questions about the child’s household financial status, produce documentation supporting financial information provided, and/or order a court official to verify the financial information provided.
Information gathered for determining indigence, both in the Financial Statement and through oral examination, may not be for any purpose other than:
- Determining if the child is (or is not) indigent; or
- Impeaching direct testimony of the child or the child’s parent(s)/person(s) responsible for the support of the child regarding the child’s indigence.
A child determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the child’s financial circumstances occurs.
A child’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of the court case. The child’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:
- Evidence of a material change in the child’s parent(s)/person(s) responsible for the support of the child and the child’s financial circumstances; or
- Additional information regarding the child’s parent(s)/person(s) responsible for the support of the child and the child’s financial circumstances shows that they do not meet the standard of indigence contained in this plan.
If a child previously determined to be indigent is subsequently determined not to indigent the Court may order the child’s parent(s) or other person(s) responsible for the child to pay the costs of the legal services to the attorney.
In determining whether a child is indigent the Court will take into consideration the parent’s (or other person responsible for the child) income, assets, property owned, outstanding obligations, necessary expenses, and the number and ages of dependents of the parent. If the Court determines that the amount of real disposable income is less than the fee charged by competent counsel in Dallas County, Texas then the child will be presumed to be indigent.
In some instances parents or other persons responsible for the child request the appointment of private counsel although they are financially able to retain counsel. In these circumstances the Court shall appoint counsel in compliance with the terms of this plan but will notify the parent or other responsible party that they will be required to pay some portion or all of the expense of the attorney, including expenses and costs if their Financial Information Statement indicates the financial ability to do so.
Minimum Attorney Qualifications
Minimum Attorney Qualifications:
must apply to each Court to be included on the Public Appointment List
by submitting the attached Application/Affidavit with the Court
Administrator. After submission of the Application/Affidavit with the
Court Administrator and review by the Judge, the attorney will be
assigned to a category based on his/her qualifications and tentatively
placed on the appointment list pending ratification by the Juvenile
Board at the next regularly scheduled meeting for consideration of the
Public Appointment List. Said lists shall be submitted for approval to the Juvenile Board annually.
To be eligible for an appointment list, an attorney must meet the following minimum standards:
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 with the State Bar of Texas;
3. An attorney shall complete a minimum of 6 hours of Continuing Legal Education (CLE) in the area of Juvenile Law and procedure each year. All attorneys on the appointment list must file a certificate with the Court’s Administrator each year attesting to completion of the required CLE or submit documentation showing that the attorney is certified as a specialist in Juvenile 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 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 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 this county for adult criminal cases and juvenile delinquency cases for the prior 12 months that begins on October 1 and ends on September 30. The report must be submitted by the attorney through the electronic reporting portal utilizing the online form to the Texas Indigent Defense Commission/form prescribed by the Texas Indigent Defense Commission.
5. Must be knowledgeable in juvenile law and be aware of collateral consequences of a juvenile adjudication and disposition;
6. Must maintain an office capable of receiving email, fax and telephone calls;
7. Must have the ability to produce typed Motions and Orders.
Continuing Legal Education may include self-study, teaching at an accredited CLE activity, or other CLE activities accredited under Section 4, Article XII, of the State Bar Rules.
Attorneys placed on the list for appointments must provide proof during each 12 month reporting period that they meet the minimum CLE requirements. Attorneys who fail to provide proof that they meet the CLE requirements will be removed from the list.
Qualifications Per Category
In addition to the above, an attorney must meet and provide documentation of the following requirements to be qualified for appointments for a designated level of juvenile case.
LEVEL ONE: Qualifications for Appointments for Conduct in Need of Supervision and Delinquent Conduct when a commitment to the Texas Juvenile Justice Department is not an authorized disposition
A. An attorney must have been licensed to practice law for minimum of one year, and
B. An attorney shall have observed at least:
Five stipulated juvenile adjudications
Five contested juvenile adjudications
Three juvenile dispositions and
Five detention hearings.
LEVEL TWO: Qualifications for Appointments for Delinquent Conduct and where an Indeterminate Commitment to the Texas Juvenile Justice Department is an authorized disposition; Mental Health issues
A. An attorney must have been licensed to practice for one year, and
B. An attorney must have substantial and active participation in:
Five juvenile or criminal (class B misdemeanor or above) jury trials, and either
Ten juvenile adjudications or modifications (contested or uncontested)
Ten criminal pleas, or a combination of these totaling ten proceedings.
LEVEL THREE: Qualifications required for appointments for Determinate Sentencing or Certification proceedings
A. An attorney must have been licensed to practice for five years, and
B. An attorney must:
1. Be board certified in juvenile or criminal law by the Texas Board of Legal Specialization, or
2. Have substantial and active participation in five felony jury trials (juvenile or criminal) and one determinate sentence trial and must have been lead counsel in two district court level jury trials, or
3. Have been lead counsel in five felony (juvenile or criminal) jury trials.
LEVEL FOUR: Qualifications required for appointments for Appeals
A. An attorney qualified for trial appointment for any level can receive appellate appointment at that same level, or
B. An attorney must have completed five juvenile or criminal appeals.
Duties of Appointed Counsel
Appointed counsel shall:
1. Make every reasonable effort to:
- Contact the child by the end of the first working date on which the attorney is appointed; and
- Interview the child as soon as practicable after the attorney is appointed.
2. Represent the child until:
-The case is terminated;
-The family retains an attorney’
-The attorney is relieved of his/her duties by the court or replaced by other counsel.
3. Investigate, either by self or through an investigator, the facts of the case and be prepared to present any factual defense that may be reasonably and arguably available to the child.
4. Brief the law of the case and be prepared to present any legal defense that may be reasonably and arguably available to the child.
5. Be prepared to negotiate with the prosecutor for the most favorable solution of the case as can be achieved through a plea agreement.
6. Be prepared to try the case to conclusion either with or without a jury;
7. Be prepared to file post-trial motions, give notice of appeal and ensure that the Court is advised of the child’s desire to appeal the case so that counsel can be appointment if needed and/or required.
8. Maintain reasonable communication and keep the child informed of the status of the case.
9. Advise the child on all matters involving the case and such collateral matters as may reasonably be required to aid the client in making appropriate decisions about the case.
10. Perform the attorney’s duty owed the child in accordance with the procedures, the requirements of the Code of Criminal Procedure and the Family Code, and applicable rules of ethics.
11. 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.
12. Contact the court immediately by fax, email, phone or personal contact if for any reason the appointment cannot be accepted.
Prompt Appointment of Counsel
Appointment after Adjudication or Certification Petition served when child is in custody
The Juvenile Courts of Dallas County require that if charges are to be filed on a child in custody, that the same be filed within ten (10) days of the initial detention hearing. If a child is in custody when his or her first detention hearing is held, Section 51.10(f) requires that an attorney be appointed, if it is determined that the child’s family cannot afford to employ counsel. Section 51.10 (c) further requires that if for any reason the child is not represented by counsel at the initial detention hearing and the child is detained, the court is required to “immediately” appoint counsel or order parents to retain counsel if the court has determined that they are financially able to do so.
Since it is often difficult to make a determination of financial need in a timely fashion, the Juvenile Public Defender will be appointed to represent all children in custody for their detention hearings. Parents will be advised that they have the right to retain private counsel at any stage of the proceedings and said private counsel may appear to represent the child for his/her detention hearing. In the absence of private counsel (either retained or otherwise appointed herein) the public defender will continue representation at the detention hearing for so long as the child remains in custody. Upon the filing of an adjudication or certification petition, if the family is financially unable to employ counsel, the Juvenile Public Defender will continue the appointment on the case unless replaced by a private attorney on the public appointment list. The preference shall be for the continuation of the Public Defender unless a conflict exists, the complexity of the case requires another appointment, or the caseload of the Public Defender requires the appointment of private counsel. In all cases where counsel is required to be appointed the same will be accomplished pursuant to the plan as set forth herein.
The attorney appointed (whether Public Defender or Private Attorney from the Public Appointment list) shall make every reasonable effort to contact a child in detention by the end of the first working day after receiving the notice of appointment or inform the court that the appointment cannot be accepted. Contacting the child in detention may be by personal visit (including contact during a detention hearing), by phone, or by video teleconference. Contacting the court may be by fax, email, phone or personal visit.
Appointment after Adjudication or Certification Petition served when child not in custody.
If a child is released at the initial detention hearing, or was released by intake, or referred to the Juvenile Court without being in custody, then there is no need under Section 51.01 for appointment of counsel unless and until a petition for adjudication or discretionary transfer is filed. If a petition is filed then the Court is required by Section 51.101 to determine indigency and if it is determined that the family is indigent, appointment becomes necessary not later than five working days after the petition is served on the child. Because the Court has no financial information on the parents to make a determination of indigency at the point of service, the Public Defender’s office will be appointed at the time the service of citation is issued in order to comply with the Statute. The parents will receive notification of the appointment of the Public Defender with their citation and will be advised that the appointment will be reviewed by the Court at the child’s first Court hearing at which time the Public Defender may be continued on the case or Private Counsel appointed if the family has not retained counsel. Along with the citation and appointment, parents will additionally receive a Financial Information Statement with instructions to complete the Statement before the child’s first hearing for the Court’s review in making appointments on the case because of indigency. If indigency is determined at the initial hearing and appointment of counsel needs to continue, preference shall be given to the appointment of private counsel from the Public Appointment List in the manner herein outlined to allow the Public Defender to be primarily appointed for children in custody.
Appointment after Modification Motion filed
If a child is already on judicial probation and a Motion to Modify is filed that seeks either revocation with commitment to the Texas Juvenile Justice Department or modification to require confinement in a secure local facility, then indigency must be determined upon the filing of the petition and if the family is determined to be indigent, appointment of counsel made within five days of filing the motion. The obligation to determine indigency arises from the filing of the Motion to Modify, rather than from serving it, since the law does not require that a Motion to Modify be served. (Section 54.05 (d) merely requires that reasonable notice be given to all parties).
If the Motion to Modify seeks revocation and commitment to the Texas Juvenile Justice Department, then under Section 54.05(h) and 51.10(b)(4) both an attorney and a hearing before the Juvenile Court are required and cannot be waived. If the Motion seeks confinement in a secure facility for more than 30 days, then both an attorney and hearing are required. If the motion seeks confinement in a secure facility for 30 days or less, then an attorney is required under Section 51.101(e), but a hearing may be waived by the child and counsel under Section 54.05(h). Appointing counsel when modification and any term of secure confinement is sought is required constitutionally in both criminal and juvenile case even for short periods of confinement, such as 30 days.
If a prior finding of indigency has been made, upon the filing of a Motion to Modify the Court will presume indigency of the family of a child who is on probation and the Court will reappoint the previous attorney. If the family has previously retained counsel indigency will not be presumed.
Out of County Warrants
A person arrested on an out-of-county warrant, will be immediately returned to the county issuing the warrant.
If an indigent Respondent is taken into custody based on this county’s warrant, counsel will be appointed within 3 working days of this county’s receipt of the request for counsel.
Attorney Selection Process
The 304th and 305th Juvenile District Courts shall create separate lists from which private attorneys are appointed to represent indigent children. Each list will be alphabetized and delineate the assigned category of the attorney recognizing the differences in qualifications and experience necessary for appointment for different types of cases and will thus be a graduated list.
The categories are as follows:
The categories are as follows: (1) cases in which the allegations are of conduct indicating a need for supervision and cases in which the allegations are of delinquent conduct in which commitment to TJJD is not permissible (2) cases in which the allegations are of delinquent conduct in which indeterminate commitment to TJJD is possible; cases involving mental health issues (3) cases in which determinate sentence proceedings have been initiated or anticipated to be initiated by obtaining and jury approval of a petition alleging a covered offense and cases in which proceedings for discretionary transfer to criminal court have been initiated by the filing of a certification petition or motion for discretionary transfer; (4) cases involving special needs (such as language) and cases in which appeals are being taken. An attorney is presumptively qualified in the category or categories preceding their assigned level, excluding special needs.
Appointing Attorneys To Cases From the Public Appointment List.
In cases where the Judge (including his/her designees) determines that the appointment of a public attorney is appropriate, the appointment shall be made from the appointment list using a system of rotation. The Judge (including his/her designee) shall determine the proper category (based on the classifications herein established) and shall appoint an attorney from the list using a system of rotation. The Judge (including designee) shall appoint attorneys from among the next five names on the appointment list in the order in which the attorney’s names appear on the list for the category involved, unless the court makes a finding of good cause on the record (which may be by docket sheet entry) for appointing an attorney out of order. 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 for his/her assigned category.
Fee and Expense Payment Process
PAYMENT FOR INDIGENT DEFENSE
Section 51.10 (i) provides that an attorney appointed to represent the interests of a child shall be paid from the general fund of the county in which the proceedings were instituted according to the schedule in Article 26.05 of the Texas Code of Criminal Procedure.
Appointed counsel will be paid a reasonable attorney’s fee for performing the following services, based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel:
1) time spent in court making an appearance on behalf of the Respondent as evidenced by a docket entry, time spent in trial, and time spent in a proceeding in which sworn oral testimony is elicited;
2) reasonable and necessary time spent out of court on the case, supported by any documentation that the court requires;
3) preparation of an appellate brief and preparation and presentation of oral argument to a Court of Appeals or the Court of Criminal Appeal; and
4) preparation of a motion for rehearing.
In accordance with the fee schedule previously adopted by the Juvenile Board, court appointed attorneys shall be paid $100.00 per court appearance or per hour and $100.00 per hour for out of court time expended. Appointed counsel shall be required to itemize the types of out of court services performed.
If an attorney submits a payment voucher that is disapproved in whole or in part by the trial judge, the attorney can appeal the trial court’s decision to the presiding judge of the administrative judicial region, whose decision on the matter is final.
Investigative and Expert Expenses
A private attorney appointed to represent a Respondent 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 for below. When possible, prior court approval should be obtained before incurring expenses for investigation and for mental health and other experts. Attorneys are encouraged to seek such prior court approval.
Procedure With Prior Court Approval:
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, 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 or unnecessary expenses will not be approved.
Dallas Juvenile Board Affidavit of Indigence.pdf (11/30/2009 1:05:33 PM) view
Dallas Juvenile Board Attorney Application for Appointment.doc (11/30/2009 2:30:17 PM) view
Dallas Juvenile Board Attorney Fee Schedule.docx (10/4/2011 12:11:33 PM) view
Dallas Juvenile Board Attorney Fee Voucher.pdf (11/30/2009 1:06:47 PM) view