Fayette Juvenile Board Plan
Prompt Detention Hearings
A. A child taken into custody must either be brought to a juvenile processing office without unnecessary delay where the child 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/guardian 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 parents/guardian 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 guardian, however, in these cases the court must immediately appoint counsel 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
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
ii. “Net household income” in the case of a child is the income of the child’s parents or other person determined responsible for the support of the child. 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 person determined responsible for the support of the child has no income or lesser income.
iii. “Household” means all individuals who are actually dependent on the child’s parent(s) or person(s) deemed responsible for the support of the child, 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. A child is presumed indigent if any of the following conditions or factors are present:
1. At the time of requesting appointed counsel, a child is presumed indigent if the child’s parent(s) or other person(s) determined responsible for the support of the child is eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.
2. The net household income of the child’s parent(s) or other person(s) determined responsible for the support of the child 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;
3. The child’s parent(s) or other person(s) determined responsible for the support of the child is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought; or
ii. The child who does not meet any of the standards above shall nevertheless be considered indigent if the child’s parent(s) or other person(s) responsible for the child is unable to retain private counsel without substantial hardship. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:
1. the nature of the 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 child, the child’s parent(s)/person(s) responsible, and other dependents of the child’s parent(s)/person(s) responsible;
5. child’s parent(s’) income or the income of other person(s) determined responsible for the support of the child;
6. source of income;
7. assets and property owned by the child, child’s parent(s), or other person(s) determined responsible for support of the child;
8. outstanding obligations;
9. necessary expenses; and
10. the number and ages of any siblings of the child.
iii. Factors NOT to be considered in determining indigence:
1. The resources available to friends or relatives of the child, other than the child’s parent(s) or other person(s) deemed responsible for the child, may not be considered in determining whether the child is indigent.
2. Only the child's parent(s) or other person(s) responsible for the child and the child’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 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 financial information provided. A financial assessment form must be completed and sworn to under oath.
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 child is (or is not) indigent; or
2. Impeaching direct testimony of the child or the child’s parent(s)/person(s) responsible regarding the child’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.
iv. 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.
1. A child’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court. 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:
a. Evidence of a material change in the child’s parent(s)/person(s) responsible and the child’s financial circumstances; or
b. Additional information regarding the child’s parent(s)/person(s) responsible and the child’s financial circumstances that shows that they do not meet any of the standards for indigence contained in these rules.
2. If a child 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 child’s parent(s) or other person(s) responsible for the child 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 child’s parent(s) or other person(s) responsible for the child to pay during the pendency of the charges or, if found to have engaged in delinquent conduct or CINS, as court costs the amount that it finds the child’s parent(s) or other person(s) responsible for the child is able to pay. Reimbursement for a juvenile case will be no more than $350.00.
Minimum Attorney Qualifications
III. Minimum Attorney Qualifications for Juveniles (Medium and Small Counties)
A. The Juvenile Board 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. General 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 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 through the online form to the Texas Indigent Defense Commission.
4. An attorney shall complete a minimum of 6 hours of CLE in the area of juvenile law and procedure each year. All attorneys on the appointment list must file a certificate with the court administration office 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 with-in a one year period immediately preceding an attorney’s initial reporting period may be used to meet the educational requirements for the initial year. Continuing legal education activity completed during any reporting period in excess of the minimum of 6 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only;
5. Must be knowledgeable in juvenile law and be aware of collateral consequences of a juvenile adjudication and disposition;
6. 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 2 years;
7. An attorney must maintain an office capable of receiving email, fax, and telephone calls;
8. An attorney must have the ability to produce typed motions and orders;
9. An attorney shall notify the Juvenile Board 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. CINS Charges or Delinquent Conduct, and Commitment to TYC Is Not an Authorized Disposition:
1. Meet the General Requirements;
2. Must have a minimum 1 year of work experience in juvenile law;
3. Must have observed or participated in at least:
a. 3 stipulated juvenile adjudications;
b. 3 contested juvenile adjudications;
c. 3 juvenile dispositions; and
d. 3 detention hearings; and
4. Participated in at least 3 criminal or juvenile trial.
iii. Delinquent Conduct, and Commitment to TYC Without a Determinate Sentence Is an Authorized Disposition:
1. Meet General Requirements;
2. Have a minimum 1 year of work experience in juvenile law;
3. Participated in 3 criminal or juvenile cases, of which at least 1 was tried to a jury verdict; and
iv. Determinate Sentence Proceedings have been Initiated; or Proceedings for Discretionary Transfer to Criminal Court Have Been Initiated:
1. Meet General Requirements;
2. Have a minimum 1 year of work experience in juvenile law;
3. Participated in 3 criminal or juvenile cases, of which at least 1 were tried to a jury verdict;
4. Tried at least 1 criminal or juvenile case as lead counsel.
B. Approval for Appointment Lists - An attorney must be approved by a majority of the Juvenile Board for each appointment list for which the attorney applies.
C. Removal from Appointment List - The Juvenile Board 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.
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 was removed from the appointment list for not submitting the attorney's annual practice time report may be immediately reinstated upon submission of the report so long as the attorney otherwise meets the other qualifications under this Plan.
iii. An attorney who has been removed from the appointment list for any other reason and who wishes to be reinstated must apply through the original application process.
E. Duties of Appointed Counsel - Appointed Counsel shall:
i. Notify the court within 72 hours of the receipt of appointment;
ii. Make every reasonable effort to:
1. Contact the child by the end of the first day after the date on which the attorney is appointed; and
2. Interview the child as soon as practicable after the attorney is appointed;
iii. Represent the child until:
1. The case is terminated;
2. The family retains an attorney;
3. The attorney is relieved of his duties by the court or replaced by other counsel.
iv. 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;
v. Brief the law of the case and be prepared to present any legal defense that may be reasonably and arguably available to the child;
vi. Be prepared to negotiate with the prosecutor for the most favorable solution 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 jury;
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 keep the child informed of the status of the case; and
x. Advise the child 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.
xi. Perform the attorney’s duty owed to the child in accordance with these procedures, the requirements of the Code of Criminal Procedure and the Family Code, 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. Appointment of Counsel for Children in Detention
i. Prior to the detention hearing the court shall inform the parents/guardian and the child 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.
ii. 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.
iii. Prior to the initial detention hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the detention decision.
iv. If there is no parent or guardian present, the court must appoint counsel for the child.
v. If the juvenile is detained, the child has an immediate right to counsel. If counsel has not already been appointed, the court must either appoint counsel or direct the juvenile’s parent or guardian to retain an attorney promptly. The court may enforce an order to retain counsel by appointing an attorney to represent the child and requiring that the child’s parent or guardian reimburse the court for attorneys’ fees.
vi. Upon appointment, the court administrator shall notify the appointed attorney by fax, e-mail, or personal contact of the appointment and the scheduled hearing time and date.
vii. The appointed attorney 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 to 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. A court-appointed attorney shall contact the child, in one of the ways mentioned above, no less than once every ten working days while the child remains in detention.
viii. An attorney appointed for a detention hearing shall continue to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court. Release of the child from detention does not terminate the attorney’s representation.
iv. Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.
B. Appointment of Counsel for Children not Detained at Intake
i. If the child is released from detention and if a petition to adjudicate or a motion to modify is filed, the juvenile court will use the financial forms gathered at intake to make a determination of indigence. If no financial information is available, the juvenile court shall promptly summon the child’s parent/guardian to the court so that financial information may be gathered for a determination of indigence.
ii. If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:
a. The date a petition for adjudication or discretionary transfer hearing has been served on the child; or
b. A motion to modify disposition seeking commitment to TYC or placing in secure correctional facility has been filed.
iii. If the family does not qualify for appointed counsel or if the parent or guardian is not available, and the family fails to provide an attorney, the juvenile court may appoint an attorney in any case in which it deems representation necessary to protect the interests of the child.
iv. The prosecuting attorney/court clerk shall notify the juvenile court upon the filing of and return of service of a motion to modify or the return of service of a petition for adjudication or discretionary transfer.
Attorney Selection Process
The Fayette County Courts adopt an alternative method for the appointment of lawyers to represent indigent juveniles as authorized by Texas Code of Criminal Procedure Article 26.04(g). This plan is intended to comply with the requirements of the Texas Judicial Council’s “Indigent Defense Policies and Standards” set forth in Chapter 174 of the Texas Administrative Code.
Fayette County will contract with three or more individual attorneys, or law firms, who will be appointed on a rotation basis to provide indigent defense in Fayette County. The attorneys will be assigned to County Court and District Court to represent defendants in juvenile cases. Neither capital cases nor appeals are included in the contract.
SELECTION OF CONTRACTOR ATTORNEYS
The administrative judge will distribute a Notice of Opportunity to Apply to be a contract defense attorney. The Notice of Opportunity to Apply will set forth the qualifications required for consideration and set a deadline for submission. The Notice of Opportunity to Apply will be distributed in a manner that reasonably covers all practicing members of the bar within Fayette County and surrounding counties. The Notice will inform individual attorneys and law firms of the requirements for submitting written applications. All potential contractors will have the same opportunity to apply and be considered for a contract.
Once the deadline for submission has passed, the Judges of the Fayette County Court and District Court will meet and decide, by majority vote, which individual attorneys or law firms to recommend to Fayette County Commissioners’ Court for indigent defense contracts. The Judges will consider the following when evaluating applications: (a) experience and qualifications; (b) past performance in representing defendants in criminal cases; (c) disciplinary history with the state bar; (d) ability to comply with the terms of the contract; and (e) cost of the services as proposed in the application. The Judges will select the proposals that demonstrate the best overall value to the courts and the county. A contract shall not be awarded solely on the basis of cost. Fayette County may not contract for indigent defense with any attorney or law firm not recommended by the majority vote of the Judges.
The contract will contain the following components:
- Parties: The contract will identify the Judges (Appointing Authority), the members of the Fayette County Commissioners’ Court (Contracting Authority), and the Contractor Attorney.
B. Term of the Contract: The contract will be for a term of one year, and either party may terminate the contract on 45 days written notice to the other party.
C. Scope of the Contract: The contract will specify the category of cases in which the contractor is to provide indigent defense services (juvenile).
D. Minimum Attorney Qualifications: The contract will specify the minimum qualifications for Contractor Attorneys as above, and will require such attorneys to maintain the qualifications during the term of the contract. If the contract covers indigent defense services provided by more than one attorney, each attorney will be required to meet and maintain only those qualifications established for the category for which the attorney is approved to provide services.
E. Duration of Representation: The contract will specify that the Contractor Attorney has the responsibility to complete all assigned cases once representation has commenced under the contract term, until all charges are dismissed, the defendant is acquitted or the attorney is relieved of his duties by the Court. The attorney may be replaced by other counsel only after a finding of good cause is entered on the record.
F. Caseload Limitations: The contract will set the maximum number of cases each attorney may be required to handle pursuant to the contract. Juvenile Cases: 200. No attorney will be expected to represent more clients than can be properly represented. The attorney will notify the Court if the caseload is beyond his/her ability to properly represent all clients. The Court may appoint “outside” the contract on an emergency basis if no attorney who meets the qualifications is available, pursuant to Rule 174.4 of the Texas Administrative Code.
G. Standards of Representation: The contract will require that the Contractor Attorney provide zealous legal representation to all clients in a professional, skilled manner consistent with all applicable laws and the Texas Disciplinary Rules of Professional Conduct. The attorney will appear for each scheduled ancillary docket and all scheduled pre-trials and trials unless the Court pre-approves the absence (at least two days before docket). The attorney will make every reasonable effort to contact the client no later than the end of the first working day after the date on which the attorney is appointed, and to interview the client as soon as practicable. The Contractor Attorney will not assign, subcontract or delegate any part of the services required under the contract except with permission of the Court. A law firm that is a Contractor Attorney may assign cases to its own attorneys who meet and maintain those qualifications established for the appropriate category of cases.
H. Conflicts of Interest: The contract will state a policy to assure that the Contractor and its attorneys do not provide indigent defense services when doing so would involve a conflict of interest. There will be no financial penalty under the contract for a Contractor who withdraws from an appointed case that poses a conflict of interest.
I. Investigators and Experts: The contract will specify how investigation services and experts that are necessary to provide competent representation will be made available, in a manner consistent with Texas Code of Criminal Procedure, Article 26.05(f - h). A Contractor Attorney will be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health or other experts.
J. Compensation and Payment Processes: The contract will set the amount of compensation and the designated method of timing of the payment(s). The contract will state that the Contractor Attorney will submit an itemized fee voucher. The voucher must be approved by the Judges prior to being forwarded to the county financial officer for payment. The contract will specify the manner in which the Contractor Attorney is to be compensated for cases assigned but not disposed within the contract term. The Contractor Attorney is prohibited from accepting any payments from an indigent defendant or a third party for services provided in a case assigned under the contract.
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 the contract and fee schedule adopted and approved by the Juvenile Board.
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 an itemized 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:
1. 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.
Fayette Juvenile Board Affidavit of Indigence.doc (9/25/2015 9:36:46 AM) view
Fayette Juvenile Board Attorney Application for Appointment.doc (10/9/2013 2:20:06 PM) view
Fayette Juvenile Board Attorney Fee Voucher.doc (10/9/2013 2:21:06 PM) view
Fayette Juvenile Board Contracts for Indigent Defense Services.pdf (12/12/2019 2:20:22 PM) view
Fayette Juvenile Board Magistrates Warning Form.doc (11/30/2009 2:10:25 PM) view