Polk, San Jacinto and Trinity County Court Plan
Conduct Prompt and Accurate Magistration Proceedings
A. Arresting Officer Responsibilities
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 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
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.
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.
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
the Magistrate’s hearing, the magistrate should determine if accused
can speak and understand English, or if the defendant is deaf.
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.
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.
accused persons requesting appointed counsel with necessary forms for
requesting appointment of counsel and ensure that reasonable assistance
in completing required forms is provided to the accused at the time of
the magistrate’s hearing.
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
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:
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
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.
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.
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.
the magistrate informed the accused of the right to request appointment
of counsel and asked the accused whether he/she wants to request
3. Whether the accused requested appointment of counsel
the magistrate is not authorized to appoint counsel and if the accused
requests appointment of counsel, the magistrate shall transmit or cause
to be transmitted the magistrate form and any other forms requesting
appointment of counsel to county level judge. (the appointing authority) The
forms requesting appointment of counsel shall be transmitted without
unnecessary delay, but not later than 24 hours after the person
arrested requests appointment of counsel.
the magistrate is authorized to appoint counsel, the magistrate shall
make a determination of indigence and appoint counsel if the defendant
is indigent within three working days.
a request for counsel was made at magistration, the appointing
authority shall forward the magistrate form and any other forms
requesting appointment of counsel to the appropriate clerk to be put
into the case file.
a request for counsel was not made at magistration, the magistrate will
forward the magistrate form to the clerk to be put into the case file.
x. 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. The magistrate will ensure assistance in completing the forms at the same time. The forms will be tansmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made.
Indigence Determination Standards
Determination of Indigence for Adults-Primary
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
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.
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:
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
accused’s net household income does not exceed the Poverty
Guidelines as revised annually by the United States Department of
Health and Human Services and published in the Federal Register; or
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.
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.
resources available to friends or relatives of the accused may not be
considered in determining whether the accused is indigent.
the accused's financial circumstances as measured by the financial
standards stated in this rule shall be used as the basis for
C. Indigence Proceedings:
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.
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.
request by the appointing authority for additional information,
documentation, and/or verification cannot delay appointment of counsel
beyond the timelines specified in Parts I and IV of these rules and
contained in Code of Criminal Procedure article 1.051.
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.
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:
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.
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 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
Adult Minimum Attorney Qualifications for Adults (Small Sized Counties)
Judges hearing criminal cases shall establish attorney appointment
lists for the following categories of offenses. Attorneys may apply for
and be placed on multiple lists. To be eligible for an appointment
list, an attorney must meet the following minimum requirements:
i. Misdemeanor Qualification Requirements:
1. All attorneys on the appointment list must ensure all information on their application is correct;
2. An attorney must be a licensed practicing attorney and a member in good standing of the State Bar of Texas;
3. An attorney shall 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/form prescribed by the Texas Indigent Defense Commission to the court administration office in the county.
attorney shall complete a minimum of 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 as a specialist in
criminal law. Continuing legal education activity completed with-in a
one year period immediately preceding an attorney’s initial reporting
period may be used to meet the educational requirements for the initial
year. Continuing legal education activity completed during any
reporting period in excess of the minimum of 6 hours for such period
may be applied to the following period’s requirement. The carryover
provision applies to one year only;
attorney may not have been the recipient of any public disciplinary
action by the State Bar of Texas or any other attorney licensing
authority of any state or the United States within the last year;
6. An attorney must maintain an office capable of receiving email, fax, and telephone calls;
7. An attorney must have the ability to produce typed motions and orders;
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.
v. Appeal Qualification Requirements - An attorney must meet at least one of the following criteria:
1. Be currently board certified in criminal law by the Texas Board of Legal Specialization; or
2. Have personally authored and filed at least three criminal appellate briefs or post-conviction writs of habeas corpus; or
3. Have submitted an appellate writing sample approved by a majority of the judges; or
4. Have worked as a briefing clerk of an appellate court for a period of at least one year.
B. Approval for Appointment Lists
i. Misdemeanor List – An attorney must be approved by a majority of the Statutory County Court Judges hearing criminal cases.
ii. State Jail and Third Degree Felony, First and Second Degree Felony List, Capital Case List, and Appeal List - An attorney must be approved for each list by a majority of the District Court Judges hearing criminal cases.
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
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 of the 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
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 are exhausted; or
attorney is relieved of his duties by the court or replaced by other
counsel after a finding of good cause entered on the record.
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;
the law of the case and be prepared to present any legal defense(s)
that may be reasonably and arguably available to the defendant;
prepared to negotiate with the prosecutor for the most favorable
resolution of the case as can be achieved through a plea agreement;
vii. Be prepared to try the case to conclusion either with or without a jury;
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;
reasonable communication and contact with the client at all times and
keep the client informed of the status of the case;
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;
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
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
Appoint Counsel Promptly for Adults (Population Less than 250,000)
A. Prompt Appointment of 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.
the defendant is released from custody prior to the appointment of
counsel, appointment of counsel is not required until the defendant’s
first court appearance or when adversarial judicial proceedings are
initiated, whichever comes first.
iii. If an indigent defendant is arrested in another county based on this county's warrant, counsel will be appointed within three working days of this county's receipt of the request for counsel.
iv. 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 coustody.
v. If a defendant wishes to request counsel prior to the initial appeareance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission's website at http://tidc.tamu.edu/public.net/ or from the District Clerk or County Clerk. The defendant may submit these forms to the District Clerk or the County Clerk who will refer the forms to the appropriate court. The court will rule on all requests for counsel submitted in this manner.
iii. Appointment Authority
1. If no case has been filed in the trial court, the appointing authority for misdemeanors is: any county level judge of the county or the Indigent Defense Coordinator, if any.
Appearing Without Counsel - If a defendant appears without counsel in
any adversary judicial proceeding that may result in punishment by
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.
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
with a defendant who has requested the appointment of counsel, unless
the appointing authority has denied the request and subsequent to the
denial, the defendant:
a. Has been given a reasonable opportunity to retain counsel; or
b. Waives or has waived the opportunity to retain private counsel.
C. Waiver of the Right to Counsel
i. A defendant may voluntarily and intelligently waive the right to counsel.
ii. A waiver obtained in violation of section IV.B above is presumed invalid.
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.
have been advised this ___ day of ____, 2___, by the (name of court)
Court of my right to representation by counsel in the case pending
against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding
my right to have counsel appointed for me free of charge if I am not
financially able to employ counsel, I wish to waive that right and
request the court to proceed with my case without an attorney being
appointed for me. I hereby waive my right to counsel. (signature of defendant)”
defendant may withdraw a waiver of the right to counsel at any time but
is not entitled to repeat a proceeding previously held or waived solely
on the grounds of the subsequent appointment or retention of counsel. If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.
Attorney Selection Process
Attorney Selection Process for Adults (Rotation)
appointing authority will identify which of the appointment lists,
discussed in the Section III (attorney qualifications), is most
appropriate based on the accusations against the defendant and will
appoint the attorney whose name is first on the list, unless the court
makes a finding of good cause on the record for appointing an attorney
out of order. Good cause may include:
defendant requesting counsel does not understand English, in which case
the judge will appoint the lawyer whose name appears next in order and
speaks the clients’ language, if one is available;
defendant has an attorney already appointed on a prior pending or
concluded matter. The same attorney will be appointed to the new
matter, unless the attorney is not on the list for the type of offense
involved in the current case; or
iii. Other good cause exists for varying from the list.
appointed, an attorney’s name will be moved to the bottom of the
appointment list. 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.
C. Judicial Removal from Case:
judge presiding over a criminal case may remove appointed counsel upon
entering a written order showing good cause for such removal, including
without limitation, the following:
1. Counsel’s failure to appear at a court hearing;
2. Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
information about the defendant and the charges against the defendant
indicate that another qualified attorney is more appropriate for the
defendant under these rules;
4. Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;
5. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
6. The defendant requests an attorney, other than trial counsel, for appeal; or
defendant shows good cause for removal of counsel, including counsel’s
persistent or prolonged failure to communicate with the defendant.
of Replacement Counsel - Whenever appointed counsel is removed under
this section, replacement counsel shall immediately be selected and
appointed in accordance with the procedures described in this plan.
Fee and Expense Payment Process
Fee and Expense Payment Process for Adults
appointed counsel shall be compensated for all reasonable and
appropriate services rendered in representing the accused. Compensation
shall be reasonable for time and effort expended and will be in
accordance with a fee schedule adopted and approved by a majority of
the judges hearing criminal cases in the county.
B. Payment Process: No payment of attorney’s fees will be made other than in accordance with the rules set forth below.
i. An appointed attorney shall fill out and submit a fee voucher to the court for services rendered.
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:
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:
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;
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.
court shall grant the request for advance payment of expenses in whole
or in part if the request is reasonable. If the court denies in whole
or in part the request for expenses, the court shall:
a. State the reasons for the denial in writing;
b. Attach the denial to the confidential request; and
c. Submit the request and denial as a sealed exhibit to the record.
iii. Procedure Without Prior Court Approval: Appointed
counsel may incur investigative or expert expenses without prior
approval of the court. On presentation of a claim for reimbursement,
the court shall order reimbursement of counsel for the expenses, if the
expenses are reasonably necessary and reasonably incurred. Unreasonable
or unnecessary expenses will not be approved.
Polk San Jacinto Trinity County Court Affidavit of Indigence.pdf (10/31/2015 12:27:36 PM) view
Polk San Jacinto Trinity County Court Attorney Application for Appointment.pdf (10/31/2015 12:30:48 PM) view
Polk San Jacinto Trinity County Court Attorney Fee Schedule & Attorney Fee Voucher (Combined).pdf (7/13/2010 3:27:52 PM) view
Polk San Jacinto Trinity County Court Attorney Fee Schedule.pdf (10/31/2015 12:34:37 PM) view
Polk San Jacinto Trinity County Court Attorney Fee Voucher.pdf (10/31/2015 12:35:56 PM) view
Polk San Jacinto Trinity County Court Magistrate’s Warning Form.pdf (10/31/2015 12:20:40 PM) view