Waller District Court and County Court Plan
Having access to competent legal counsel when charged with a serious criminal offense is a right afforded to everyone under both state and federal laws. The courts of Waller County support the policies of the State of Texas as promulgated by the Texas Indigent Defense Commission in the appointment and compensation of attorneys appointed to represent the indigent. Waller County indigent defendants are represented through contract attorneys who serve under a one-year contract for a fixed annual compensation.
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 shall 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. Indicate on the magistration form the accused’s request concerning the appointment of counsel.
5. At the time of magistration, provide the accused person requesting appointed counsel with necessary forms, including a Financial Assessment Form (Affidavit of Indigence), 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. Jail personnel shall be available to assist the magistrate in this process.
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.
7. The magistrate shall insure that jail personnel promptly transmit the request for appointment of counsel, as well as the Financial Assessment Form, to the trial court with jurisdiction for the alleged underlying offense.
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. While the magistrate is authorized to appoint counsel, the preferred procedure is to forward the Financial Assessment Form along with the form requesting appointment of counsel to the trial court with jurisdiction of the alleged offense. In appropriate situations, the magistrate may make the determination of indigence and appoint counsel if the defendant is indigent, using the current attorneys appointment list. Any defendant requesting court-appointed counsel must complete a Financial Assessment Form. This form is to be promptly provided by the magistrate or jail personnel and must be sworn under oath or subject to penalties of perjury.
vii. If a request for counsel was made at magistration, the magistrate shall insure that the jail personnel forward the magistrate form and any other forms requesting appointment of counsel to the appropriate clerk to be put into the case file.
viii. Whether a a request for counsel was made or not made at magistration, the magistrate shall insure that the jail personnel forward the magistrate form to the appropriate trial court clerk to be put into the case file.
ix. OUT OF COUNTY ARRESTS: For persons arrested on out-of-county warrants, the magistrate will ask the defendant if he/she would like to request appointed counsel. The magistrate will record the response, and if counsel is requested, the magistrate will provide the arrestee with the appropriate forms for requesting counsel, as provided above. The magistrate will ensure assistance in completing the forms at the same time. The forms will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made. Regarding the appointment of counsel, persons arrested in other counties on local warrants must be appointed counsel in the county that issued the warrant within 3-working days of receipt of the request. Persons arrested on out-of-county warrants must be appointed counsel in the county of arrest 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.
a. If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within 3-working days of this county’s receipt of the request for counsel.
b. If a defendant is arrested in this county based on another county’s warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county’s custody.
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. Any accused requesting court-appointed counsel must complete a financial assessment form. This form must be sworn 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 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 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. Waller County will contract with ten or more individual attorneys or law firms who will be appointed on a rotation basis to provide indigent defense in Waller County. The attorneys will be assigned to County Court and District Court to represent misdemeanor defendants, felony defendants and juveniles. At least four attorneys will be assigned to County Court at Law to represent defendants in misdemeanor (as well as juvenile) cases. At least six attorneys will be assigned to the 506th District Court to represent defendants in felony cases. 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 Waller 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. To be eligible to be a contract defense attorney for Waller County, an attorney must meet the following minimum requirements:
i. Misdemeanor Qualification Requirements:
1. All attorneys who contract with Waller County 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 six (6) hours of CLE in the area of criminal 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 in criminal law by the Texas Board of Legal Specialization. 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 six-hour requirement for such period may be applied to the following year's requirement. The carryover provision applies to one year only;
4. An attorney must have a minimum of three (3) years experience in criminal law;
5. 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. Felony Case Qualification Requirements
1. An attorney must meet general requirements for misdemeanor appointments;
2. An attorney must have a minimum of four (4) years experience in criminal law;
iii 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.
iv. Appeal Qualification Requirements - 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. 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.
B. Approval for Appointment Lists
i. Misdemeanor List – An attorney must be approved by a majority of the Judges hearing criminal cases.
ii. Felony List, Capital Case List, and Appeal List - An attorney must be approved for each list by a majority of the Judges hearing criminal cases.
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.
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 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 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 is appointed;
iii. Represent the defendant until:
1. Charges are dismissed;
2. The defendant is acquitted;
3. Appeals through the Court of Appeals are exhausted; or
4. The attorney is relieved of his or her 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, and visit the Office of the District Attorney at least once between the Motions and Pretrial settings; Appear for each scheduled ancillary docket and all scheduled pre-trial conferences and trials unless the Court pre-approves the absence (at least two days before the docket);
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 contact with the client at all times and keep the client informed of the status of the case;
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;
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; and
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. The Contract 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 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. Appointment Authority
1. If no case has been filed in the trial court, the appointing authority for misdemeanors is the County Court at Law Judge.
2. If no case has been filed in the trial court, the appointing authority for felonies is the District Court Judge.
3. If the case has been filed in the trial court, the appointing authority is the trial judge.
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 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 ____, 201__, 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.
OUT OF COUNTY ARRESTS: 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/upblic.net/ or from the Waller County District Clerk. The defendant may submit these forms to the District Court Coordinator at firstname.lastname@example.org. The court will rule on all requests for counsel submitted in this manner.
Attorney Selection Process
The Waller County Courts adopt an alternative method for the appointment of lawyers to represent indigent defendants 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.
Waller County will contract with ten or more individual attorneys, or law firms, who will be appointed on a rotation basis to provide indigent defense in Waller County. The attorneys will be assigned to County Court and District Court to represent defendants in misdemeanor cases, juvenile cases and felony 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 Waller 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 Waller County Court at Law and the 506th Judicial District Court will meet and decide, by majority vote, which individual attorneys or law firms to recommend to Waller 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. Waller 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:
A. Parties: The contract will identify the Judges (Appointing Authority), the members of the Waller 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 (felony, misdemeanor or 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 in accordance with Texas Code of Criminal Procedure Article 26.04(j)(2).
F. Caseload Limitations: The contract will set the maximum number of cases each attorney may be required to handle pursuant to the contract. Felony cases: 75; Misdemeanor cases: 200; 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 defendant no later than the end of the first working day after the date on which the attorney is appointed, and to interview the defendant 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.
Capital Felony Cases
i. The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases in which death is available unless the court makes a finding of good cause on the record 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 this Section.
ii. The Regional Public Defender for Capital Cases 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.
iii. The Appointing Authority shall immediately contact the attorneys appointed by phone, fax, e-mail or in person and notify the attorneys of the appointment and the last known location of the defendant.
Fee and Expense Payment Process
A. 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 court approval of the court, in an amount up to and including $750.00. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, up to that amount, if the expenses are reasonably necessary and reasonably incurred. Unreasonable or unnecessary expenses will not be approved. Investigative or expert expenses above $750.00 require prior court approval through an in-camera hearing.
Every year, a contracting attorney shall submit a practice-time statement to Waller County in an adult criminal or juvenile delinquency case during a fiscal year period that begins on October 1 and ends on September 30. The statement is due no later than October 15 immediately following the close of each fiscal year. For example, if, during the fiscal year that begins on October 1, 2013 and ends on September 30, 2014, an attorney who accepts appointments in County A and County B must submit separate practice-time statements to County A and to County B by October 15, 2014.
The statement submitted to Waller County must describe (1) the percentage of an attorney’s total practice time (time spent in legal practice in all jurisdictions) that was dedicated to work on trial and appeal appointments in adult criminal cases in that county’s district and county courts during the fiscal year beginning on the preceding October 1; and (2) the percentage of an attorney’s total practice time that was dedicated to work on trial and appeal appointments in juvenile delinquency cases (cases alleging delinquent conduct or conduct indicating a need for supervision) in that county’s district and county courts during the fiscal year beginning on the preceding October 1.
The percentages reported in the practice-time statement submitted to each county should not include time dedicated to work on appointments to cases (such as CPS cases and guardianship cases) that are not adult criminal or juvenile delinquency cases, and should not include time dedicated to federal criminal appointments.
The attorney may submit the practice-time statement via the Commission’s electronic attorney reporting portal, on the attached Commission reporting form, or on any other physical or electronic form specified by Waller County that captures all of the information requested on the Commission form. Waller County may require attorneys who accept appointments to use a specific method to submit their practice-time statements.
The Commission recognizes that attorneys who accept criminal appointments use a variety of case management systems, and attorneys are not required to use any single methodology to complete the practice-time statement. However, the statement should provide percentages that are as accurate as possible given the attorney’s chosen case management system.
The Commission will also work with the criminal defense community to promulgate a worksheet that may help attorneys calculate the percentages that must be included in the practice-time statement submitted to each county. Attorneys are not required to use or submit the worksheet to the county or to the Commission.
Attorneys who keep time records for all or a portion of their caseload may use those records to calculate their practice-time percentages or, in the case of partial records, to complete some of the lines on the worksheet. Time records will provide the most accurate method for calculating practice-time percentages.
Attorneys who do not keep time records may consider using a case-counting methodology to calculate practice-time percentages. This methodology involves looking at the number and types of cases in an attorney’s total caseload, and calculating practice time percentages based on the number of cases in different case type categories. An attorney may keep track of the number and types of different cases the attorney handles during an entire fiscal year, or may choose to base the calculation on the number of cases the attorney has open at a specific point in time.
For example, an attorney who is appointed to 50 adult criminal cases in County A and is retained by 50 individual clients may calculate that 50% of the attorney’s practice time is dedicated to adult criminal appointments in County A, if the appointed cases and retained cases are similar in complexity. The attorney may adjust the percentages as necessary to account for any significant difference in the degree of complexity of cases in each category.
Attorneys who do not keep time records or use the case counting methodology will be encouraged to use the worksheet to help them consider all of the types of cases they handle when calculating their practice-time percentages. The worksheet will be designed to help attorneys avoid over- or under-estimating the percentage of time they spend on appointments and report to the county.
Penalties for failing to submit a required practice-time statement by the October 15 due date may be prescribed by the judges trying criminal cases in each county. Penalties may include an attorney’s removal from the list of attorneys eligible to receive future court appointments.
TEXAS INDIGENT DEFENSE COMMISSION
ATTORNEY REPORTING FORM
Waller County, Texas
Under Article 26.04(j), Code of Criminal Procedure, attorneys are required to report to each county in which they accept appointments the percentage of their total practice time that is dedicated to appointed adult criminal cases and juvenile delinquency cases in that county. This form must be submitted annually to each county no later than October 15. Please see the Attorney Reporting Instructions published by the Commission for additional information about this form.
1. During the preceding fiscal year (October 1 – September 30), _____% of my total practice time was dedicated to work on adult criminal cases in which I was appointed to represent the defendant in Waller County, Texas.
2. During the preceding fiscal year (October 1 – September 30), _____% of my total practice time was dedicated to work on juvenile delinquency cases (cases alleging delinquent conduct or conduct indicating a need for supervision) in which I was appointed to represent the juvenile in Waller County, Texas.
Attorney Name State Bar of Texas No.
Attorney Signature Date
Waller District and County Court Affidavit of Indigence - Adult - Spanish.docx (10/27/2017 9:11:33 AM) view
Waller District and County Court Affidavit of Indigence - Adult.docx (10/27/2017 9:11:14 AM) view
Waller District and County Court Affidavit of Indigence.doc (11/30/2009 2:16:05 PM) view
Waller District and County Court Attorney Application for Appointment.doc (11/30/2009 2:16:40 PM) view
Waller District and County Court Attorney Fee Schedule.doc (8/18/2010 8:56:44 AM) view
Waller District and County Court Attorney Fee Voucher.rtf (11/30/2009 2:17:12 PM) view
Waller District and County Court Contracts for Indigent Defense Services.pdf (6/2/2020 5:01:56 PM) view
Waller District and County Court Magistrates Warning Form.doc (11/30/2009 2:15:29 PM) view
Waller District and County Court Probable Cause.rtf (11/30/2009 2:17:51 PM) view