Deaf Smith and Oldham District Court and County Court Plan
Preamble
11/30/2009
STANDARDS AND PROCEDURES RELATED TO APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN DEAF SMITH COUNTY
 
To implement the Texas Fair Defense Act (FDA, Acts 2001, 776 Leg.), the following Local Rules of Administration are adopted under Texas Local Government Code   74.093, effective January 1, 2003:
 
Prompt Magistration
9/22/2017
 
Rule 2.  Procedures for Timely Appointment of Counsel
 
2.01            Prompt Appearance Before a Magistrate
 

(a)                                       The magistrate of this county will inform supervisory personnel of all law enforcement agencies operating within the county that each time a person is arrested, Texas law requires the officer making the arrest and any officer who later has custody to ensure that the person is taken before a magistrate without unnecessary delay, and never more than 48 hours after arrest.
 
(b)                                      The judges of this county will work with the magistrates, prosecutors, and law enforcement agencies in the county to devise appropriate procedures for meeting the time standards set forth in Rule 2.01 (a).
 
(c)                                      Whenever an arrested person is first brought before a magistrate, the magistrate shall record the date and time that the person was brought before the magistrate.
 
(d)                                      Each time a magistrate or a judge has reasonable cause to believe that a law enforcement officer has engaged in unnecessary delay in taking a defendant before a magistrate after arrest, the magistrate or judge will inform the law enforcement officer’s supervisors.  In the event of repeated incidents of unnecessary delay by a law enforcement agency or officer, the judges will initiate communications with the law enforcement agency regarding corrective measures to ensure compliance with Rule 2.01 (a) and with any procedures and adopted pursuant to Rule 2.01 (b).
 
 
 
2.02            Responsibilities of the Magistrate
 

 
(a)                                       Whenever an arrested person is first brought before a magistrate, the magistrate shall immediately perform the duties described in Article 15.17 of the Code of Criminal Procedure, including:
 
(a)               The magistrate shall specifically inform the person arrested of the person’s right to request appointment of counsel if the person cannot afford counsel.
 
(b)              The magistrate shall specifically ask the person   arrested whether the person wants to request appointment of counsel.
 
(c)              The magistrate shall specifically inform the person of the procedures for requesting appointment of counsel.
 
(d)              The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the time of the Article 15.17 hearing.
 
(e)              The magistrate shall ensure that the above information and assistance are provided in a manner and using terminology and language that the arrested person can understand.
 
(f)               If the arrested person does not speak and understand the English language or is deaf, the magistrate shall ensure that the information and assistance are provided with the assistance of an interpreter consistent with Articles 38.30 and 38.31 of the Code of Criminal Procedure.
 
(g)              If a magistrate has cause to believe that a person is not mentally competent to decide whether to request counsel, the magistrate will enter a request for counsel on the person’s behalf.  The magistrate shall record this request for counsel in a way that alerts the person making the appointment that counsel competent to represent mentally ill defendants should be appointed.
 
(b)                                      In each case in which an arrested person is taken before a magistrate for an Article 15.17 hearing, the magistrate will make a written record documenting:
                                                           
 
(1)              that the magistrate informed the person of the person’s right to request appointment of counsel;
 
(2)              that the magistrate asked the person whether the person wanted to request appointment of counsel; and
 
(3)              whether the person requested appointment of counsel,
 
(c)                                      The record required under Rule 2.02 may be combined on the same form used to record the arrested person’s request for appointment of counsel and to transmit that request to the person making the appointment.
 
(d)                                      The records required under this Rule shall be maintained for the same period required for all official records of criminal court proceedings.
 
2.03            Transmittal of Request for Appointed Counsel.
 
If the person arrested requests appointment of counsel and has completed the necessary forms, the magistrate shall transmit or cause to be transmitted to the appointing judge or the courts designee the forms requesting appointment of counsel.  The forms requesting appointment of counsel shall be transmitted without unnecessary delay and so that the person making the appointment receives the forms no later than 24 hours after the request is made.

2.04          Out-of-County Warrants.
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 transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made.
Indigence Determination Standards
1/26/2011
Rule 3.   Procedure for Determining Whether a Defendant is Indigent
 
3.01    A defendant is considered indigent if the defendant is not financially able to employ counsel taking into account the nature of the criminal charge(s), the anticipated complexity of the defense, the estimated cost of obtaining competent private legal representation for the matter charged, and the amount needed for the support of the defendant and the defendant’s dependents.
 
 
 
3.02            Factors Not to be Considered
 
(a)               A defendant’s posting of bail or ability to post bail may not be considered in determining whether the defendant is indigent, except to the extent that it reflects the defendant’s financial circumstances as measured by the standards stated in this rule.
 
(b)              The resources available to friends or relatives of the defendant may not be considered in determining whether the defendant is indigent.  Only the defendant’s financial circumstances as measured by the standards stated in this rule shall be used as the basis for determining indigence.
 
3.03            Procedures for Determining Indigence
 

 
(a)                                       As soon as possible following arrest, and in any event not later than the Article 15.17 hearing, the magistrate before whom the defendant is taken shall provide each arrested person who wants to request appointment of counsel with a form approved by the judges on which the arrested person will provide under oath the necessary information concerning the person’s financial resources and will indicate that the person   requests appointment of counsel.  The magistrate shall provide the arrested person reasonable assistance in completing the form.
 
(b)                                      The form requesting appointment of counsel and containing the information concerning the arrested person’s financial resources will be transmitted to the appointing judge or designee in accordance with Rules 2.03 and 4.05.
 
(c)                                      The appointing judge or designee will determine whether the person is indigent.  The determination will be recorded on the form requesting appointment of counsel and the form will be filed with the other orders in the case.
 
(d)                                      The arrested person may be required to respond to examination regarding the person’s financial resources.
 
(e)                                      A written or oral statement elicited under this article or evidence derived from the statement may not be used for any purpose, except to determine the defendant’s indigence or to impeach the direct testimony of the defendant regarding the defendant’s indigence, or for prosecution under Chapter 37, Penal Code.
 
 
(f)                                       A defendant determined to be indigent is presumed to remainacc indigent for the remainder of the case unless a material change in the defendant’s financial circumstances occurs.
 
(g)                                      A defendant’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court proceeding based on evidence of a material change in the defendant’s financial circumstances.  A defendant’s status as indigent or not indigent also may be reviewed in a formal hearing at any stage of a court proceeding based on additional information regarding financial circumstances, subject to the presumption.  If a defendant previously determined to be indigent subsequently is determined not to be indigent, the attorney shall be compensated by the county in accordance with these Rules for time reasonably expended on the case.
 
4.0                  Standards for Determining Indigence
 
4.1                  Each accused requesting the appointment of counsel shall fully complete, under oath, the indigence affidavit.
 
4.2                  If such affidavit reflects a net income for the accused which is below the latest available Federal Poverty Guidelines for one person, the accused shall be found to be indigent and counsel shall be appointed for the accused in accordance with the procedures set out herein.
 
Minimum Attorney Qualifications
10/25/2013
4.03            Attorney Qualification.
 
At any time attorneys may apply to be included on one or more of the public appointment lists.  To be eligible for placement on each list, attorneys must have met the following minimum qualifications.
 

 
(a)                                       Misdemeanor List:
 
(1)              Currently Licensed and in good standing with the State Bar of Texas;
 
(2)              Practiced in the area of criminal law for at least one year;

(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.
 
(4)              Exhibited proficiency and commitment to providing quality representation to criminal defendants;
 
(5)              Exhibited professionalism and reliability when providing representation to criminal defendants;
 
(6)              Complete 6 hours a year of continuing legal education courses relating to criminal law as recognized by the State Bar of Texas, beginning with the date of placement on the list;
 
(7)              Have tried to verdict at least two criminal jury trials as lead counsel  or as second chair counsel; and
 

 
(b)                                      Felony List:
 
(1)              Have met the qualifications for placement on the Misdemeanor List;
 
(2)              Have practiced in the area of criminal law for at least one year;
 
(3)              Have tried to verdict at least two criminal jury trials as lead counsel;
 
 
 

 
(c)                                      Capital Felony List:
 
(1)              Have met the qualifications for placement on the Misdemeanor List;
 
(2)              Have practiced in the area of criminal law for at least 5 years;
 
(3)              Have tried to verdict at least 8 criminal jury trials as lead counsel, including at least 6 felony trials, of which at least 4 were trials in first or second degree felonies or capital felonies and at least one of which was a homicide case;
 
(4)              For appointment in capital felony cases where the death penalty is sought the attorney   must in addition, meet the qualifications set forth below in Rule 5;
 

 
(d)                                      Appellate List:
                       
(a)               Have met the qualifications set forth in paragraphs (1) through (5) of the requirements for placement on the Misdemeanor List; and
 
(b)              Have met at least one of the following criteria:
 
(a)               be currently board certified in criminal law by the Texas board of Legal Specialization;
 
(b)              have personally authored and filed at least 5 criminal appellate briefs or post-conviction writs of habeas corpus; or
 
(c)              have submitted an appellate writing sample approved by a majority of the judges.
 
4.04            Approval of attorneys by the Judges.
 
(b)              In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on one or more of the felony appointment lists only if the District Judge approves the attorney’s placement on each such list.  In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on the misdemeanor appointment list only if the County Judge approves the attorney’s placement on the misdemeanor list.
 
 
(c)              When applications are received, the District Judge shall evaluate applicants for each felony appointment list.  The judges will approve those attorneys:
 
(a)               who meet the objective qualifications set forth in Rule 4.03 for placement on the list; and
 
(b)              whom the judge considers t be actually competent to adequately handle cases associated with the list.
 
(d)              When applications are received, the County Judge shall evaluate applicants for the Misdemeanor List.  The judge will approve those attorneys:
 
(a)               who have met the objective qualifications set forth in Rule 4.03 for placement on the Misdemeanor List; and
 
(b)              whom the judge considers to be actually competent to adequately handle misdemeanor cases.
 

 
(d)              Alternative List
 
In the event an insufficient number of attorneys apply and qualify to be placed on the list as provided above, then the names of attorneys who have represented an accused in the appropriate court within the last two years may be placed on the list.  Only those attorneys who have exhibited competence to adequately handle cases to the judge of the appropriate court may be placed on the list.
 
(e)              An attorney may be removed from one or more public appointment lists by the judge for the corresponding court level whenever the judge determines that the attorney no longer meets the objective qualifications for that list or is not fully competent to adequately handle the category of cases associated with that list.  The judge may in his discretion remove an attorney from one or more lists, while continuing to approve the attorney for other lists.
 
Prompt Appointment of Counsel
9/22/2017
Appoint Counsel Promptly for Adults (Population Less than 250,000)

IV.      Appoint Counsel Promptly (Adults – County Population Less than 250,000)

A.    Prompt Appointment of Counsel

                                i.            Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel. Working day means Monday through Friday, excluding official state holidays.  Counsel must be appointed whether or not a case has been filed in the trial court.

                              ii.            If the defendant is released from custody prior to the appointment of counsel, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.

                            iii.            If 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 custody.

                              v.            If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/ or from: ________________________. The defendant may submit these forms to: _________________________.

The court will rule on all requests for counsel submitted in this manner.

                            vi.            Appointment Authority

1.      If no case has been filed in the trial court, the appointing authority for misdemeanors is: ______________

2.      If no case has been filed in the trial court, the appointing authority for felonies is: _______________

3.      If the case has been filed in the trial court, the appointing authority is: _______________.

B.     Defendants Appearing Without Counsel - If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement:

                                i.            The court may not direct or encourage the defendant to communicate with the attorney representing the state until the court advises the defendant of the right to counsel and the procedure for requesting appointed counsel and the defendant has been given a reasonable opportunity to request appointed counsel.

                              ii.            If the defendant has requested appointed counsel, the court may not direct or encourage the defendant to communicate with the attorney representing the state unless the appointing authority has denied the request and, subsequent to the denial, the defendant:

1.      Has been given a reasonable opportunity to retain and has failed to retain appointed counsel; or

2.      Waived or has waived the opportunity to retain private counsel.

                            iii.            The attorney representing the state may not:

1.      Initiate or encourage an attempt to obtain from the defendant a waiver of the right to counsel; or

2.      Communicate with a defendant who has requested the appointment of counsel, unless the appointing authority has denied the request and subsequent to the denial, the defendant:

a.       Has been given a reasonable opportunity to retain counsel; or

b.      Waives or has waived the opportunity to retain private counsel.

C.     Waiver of the Right to Counsel

                                i.            A defendant may voluntarily and intelligently waive the right to counsel.

                              ii.            A waiver obtained in violation of section IV.B above is presumed invalid.

                            iii.            If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation.  If the court determines that the waiver is voluntarily and intelligently waived, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings.

“I have been advised this ___ day of ____, 2___, by the (name of court) Court of my right to representation by counsel in the case pending against me.  I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge.  Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me.  I hereby waive my right to counsel. (signature of defendant)”

                            iv.            A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel.  If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.

Rule 4.  Selection and Appointment of Counsel
 

Generally


Incarcerated persons: After receipt of request for counsel, counsel must be appointed to persons determined to be indigent within three working days of receipt of the request for counsel.

 

Persons out of custody:  Counsel must be appointed for persons determined to be indigent at defendant's first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.

 

Persons appearing in court without counsel will be advised of the right to counsel and procedures for obtaining counsel.


If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/. The defendant may submit these forms to the appointing authority. The court will rule on all requests for counsel submitted in this manner.

 

4.01            Method of appointment.
 
Attorneys shall be appointed to represent indigent defendants from public appointment lists as described below.
 
4.02    Public Appointments Lists
 
The Judges hereby establish the following public appointment lists from which counsel for indigent defendants shall be appointed:
 
(a)               A Misdemeanor List consisting of attorneys eligible for appointment in Class A and B misdemeanors.
 
(b)              Felony List consisting of attorneys eligible for appointment in felonies and motions to revoke probation.
 
(c)              A Capital Felony List consisting of attorneys eligible for appointment in capital murder felonies.
 
(d)              An Appellate List consisting of attorneys eligible for appointment to direct appeals and writs of habeas corpus.
 
Appointment of counsel to represent a defendant in motion to adjudicate proceeding shall be from the list appropriate for the offense(s) charged.
 
4.03            Attorney Qualification.
 
At any time attorneys may apply to be included on one or more of the public appointment lists.  To be eligible for placement on each list, attorneys must have met the following minimum qualifications.
 

 
(a)                                       Misdemeanor List:
 
(1)              Currently Licensed and in good standing with the State Bar of Texas;
 
(2)              Practiced in the area of criminal law for at least one year;
 
(3)              Exhibited proficiency and commitment to providing quality representation to criminal defendants;
 
(4)              Exhibited professionalism and reliability when providing representation to criminal defendants;
 
(5)              Complete 6 hours a year of continuing legal education courses relating to criminal law as recognized by the State Bar of Texas, beginning with the date of placement on the list;
 
(6)              Have tried to verdict at least two criminal jury trials as lead counsel  or as second chair counsel; and
 

 
(b)                                      Felony List:
 
(1)              Have met the qualifications for placement on the Misdemeanor List;
 
(2)              Have practiced in the area of criminal law for at least one year;
 
(3)              Have tried to verdict at least two criminal jury trials as lead counsel;
 
 
 

 
(c)                                      Capital Felony List:
 
(1)              Have met the qualifications for placement on the Misdemeanor List;
 
(2)              Have practiced in the area of criminal law for at least 5 years;
 
(3)              Have tried to verdict at least 8 criminal jury trials as lead counsel, including at least 6 felony trials, of which at least 4 were trials in first or second degree felonies or capital felonies and at least one of which was a homicide case;
 
(4)              For appointment in capital felony cases where the death penalty is sought the attorney   must in addition, meet the qualifications set forth below in Rule 5;
 

 
(d)                                      Appellate List:
                       
(a)               Have met the qualifications set forth in paragraphs (1) through (5) of the requirements for placement on the Misdemeanor List; and
 
(b)              Have met at least one of the following criteria:
 
(a)               be currently board certified in criminal law by the Texas board of Legal Specialization;
 
(b)              have personally authored and filed at least 5 criminal appellate briefs or post-conviction writs of habeas corpus; or
 
(c)              have submitted an appellate writing sample approved by a majority of the judges.
 
4.04            Approval of attorneys by the Judges.
 
(b)              In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on one or more of the felony appointment lists only if the District Judge approves the attorney’s placement on each such list.  In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on the misdemeanor appointment list only if the County Judge approves the attorney’s placement on the misdemeanor list.
 
 
(c)              When applications are received, the District Judge shall evaluate applicants for each felony appointment list.  The judges will approve those attorneys:
 
(a)               who meet the objective qualifications set forth in Rule 4.03 for placement on the list; and
 
(b)              whom the judge considers t be actually competent to adequately handle cases associated with the list.
 
(d)              When applications are received, the County Judge shall evaluate applicants for the Misdemeanor List.  The judge will approve those attorneys:
 
(a)               who have met the objective qualifications set forth in Rule 4.03 for placement on the Misdemeanor List; and
 
(b)              whom the judge considers to be actually competent to adequately handle misdemeanor cases.
 

 
(d)              Alternative List
 
In the event an insufficient number of attorneys apply and qualify to be placed on the list as provided above, then the names of attorneys who have represented an accused in the appropriate court within the last two years may be placed on the list.  Only those attorneys who have exhibited competence to adequately handle cases to the judge of the appropriate court may be placed on the list.
 
(e)              An attorney may be removed from one or more public appointment lists by the judge for the corresponding court level whenever the judge determines that the attorney no longer meets the objective qualifications for that list or is not fully competent to adequately handle the category of cases associated with that list.  The judge may in his discretion remove an attorney from one or more lists, while continuing to approve the attorney for other lists.
 
4.05            Assignment of Attorneys:
 
The following method shall be used to assign attorneys from the appropriate public appointment list to represent individual defendants:
 
 

 
(d)              The District Judge or his designee will serve as appointing judge for all defendants charged with felonies, and the County Judge or his designee will serve as appointing judge for all defendants charged with misdemeanors.
 
(e)              The appointing person will:
 
(1)              receive all requests for appointment of counsel transmitted by the magistrate as provided in Rule 2;
 
(2)              determine whether each defendant requesting appointed counsel is indigent, as provided in Rule 3;
 
(3)              select and appoint appropriate counsel to represent each indigent defendant as provided in this Rule; and
 
(4)              cause all interested parties to be notified of the appointment as provided in Rule 6.
 

 
(c)                                      The judges have determined that an insufficient number of attorneys are available in the jurisdiction to allow for an effective random appointment procedure that will assure the most effective representation of the defendants.  The appointing judge will therefore appoint a lawyer whose name appears on the public appointment list that corresponds to the most serious offenses currently charged.  The judge shall allocate appointments among qualified attorneys reasonably and impartially and in a manner which is fair, neutral, and nondiscriminatory.
 
(d)                                      In unusual circumstances, if the judge making the appointment enters a written finding of good cause on the record, the judge may appoint any qualified, willing attorney regardless of whether the attorney’s name is on the appropriate list, so long as the attorney would qualify for placement on the list and the attorney agrees to accept the appointment.
 
(e)                                      Each attorney appointed under this Rule to represent the defendant in the trial court is to represent the defendant through trial and post-trial proceedings in the trial court.
 
(f)                                       At the conclusion of all proceedings in the trial court, including post-trial motions, if an indigent defendant wishes to file an appeal, the appointing judge will appoint a lawyer whose name appears on the Appellate List.

4.06           Out-of-County Warrants.


(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.

 
Rule 5.  Selection and Appointment of Counsel in Death Penalty Cases
 
5.01            Whenever a capital felony offense case is filed, the presiding judge in the district court in which the case is filed shall appoint two attorneys at the time the initial appointment is made, unless and until the state gives notice in writing that the state will not seek the death penalty.
 
5.02            Qualifications of Counsel.
 
Counsel for accused in alleged capital felonies in which the State of Texas seeks the death penalty shall be determined and appointed as provided in Article 26.052 of the Texas Code of Criminal Procedure.
 
Attorney Selection Process
9/22/2017
Attorney Selection Process for Adults (Rotation)

A.    The 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:

                                i.            The 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;

                              ii.            The 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.

B.     Once 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:

                                i.            The judge presiding over a criminal case may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, the following:

1.      Counsel’s failure to appear at a court hearing;

2.      Counsel’s failure to comply with the requirements imposed upon counsel by this plan;

3.      Current information about the defendant and the charges against the defendant indicate that another qualified attorney is more appropriate for the defendant under these rules;

4.      Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;

5.      The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;

6.      The defendant requests an attorney, other than trial counsel, for appeal; or

7.      The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.

                              ii.            Appointment of Replacement Counsel - Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.

Rule 4.  Selection and Appointment of Counsel
 


 


4.01            Method of appointment.
 
Attorneys shall be appointed to represent indigent defendants from public appointment lists as described below.
 
4.02    Public Appointments Lists
 
The Judges hereby establish the following public appointment lists from which counsel for indigent defendants shall be appointed:
 
(a)               A Misdemeanor List consisting of attorneys eligible for appointment in Class A and B misdemeanors.
 
(b)              Felony List consisting of attorneys eligible for appointment in felonies and motions to revoke probation.
 
(c)              A Capital Felony List consisting of attorneys eligible for appointment in capital murder felonies.
 
(d)              An Appellate List consisting of attorneys eligible for appointment to direct appeals and writs of habeas corpus.
 
Appointment of counsel to represent a defendant in motion to adjudicate proceeding shall be from the list appropriate for the offense(s) charged.
 
4.03            Attorney Qualification.
 
At any time attorneys may apply to be included on one or more of the public appointment lists.  To be eligible for placement on each list, attorneys must have met the following minimum qualifications.
 

 
(a)                                       Misdemeanor List:
 
(1)              Currently Licensed and in good standing with the State Bar of Texas;
 
(2)              Practiced in the area of criminal law for at least one year;
 
(3)              Exhibited proficiency and commitment to providing quality representation to criminal defendants;
 
(4)              Exhibited professionalism and reliability when providing representation to criminal defendants;
 
(5)              Complete 6 hours a year of continuing legal education courses relating to criminal law as recognized by the State Bar of Texas, beginning with the date of placement on the list;
 
(6)              Have tried to verdict at least two criminal jury trials as lead counsel  or as second chair counsel; and
 

 
(b)                                      Felony List:
 
(1)              Have met the qualifications for placement on the Misdemeanor List;
 
(2)              Have practiced in the area of criminal law for at least one year;
 
(3)              Have tried to verdict at least two criminal jury trials as lead counsel;
 
 
 

 
(c)                                      Capital Felony List:
 
(1)              Have met the qualifications for placement on the Misdemeanor List;
 
(2)              Have practiced in the area of criminal law for at least 5 years;
 
(3)              Have tried to verdict at least 8 criminal jury trials as lead counsel, including at least 6 felony trials, of which at least 4 were trials in first or second degree felonies or capital felonies and at least one of which was a homicide case;
 
(4)              For appointment in capital felony cases where the death penalty is sought the attorney   must in addition, meet the qualifications set forth below in Rule 5;
 

 
(d)                                      Appellate List:
                       
(a)               Have met the qualifications set forth in paragraphs (1) through (5) of the requirements for placement on the Misdemeanor List; and
 
(b)              Have met at least one of the following criteria:
 
(a)               be currently board certified in criminal law by the Texas board of Legal Specialization;
 
(b)              have personally authored and filed at least 5 criminal appellate briefs or post-conviction writs of habeas corpus; or
 
(c)              have submitted an appellate writing sample approved by a majority of the judges.
 
4.04            Approval of attorneys by the Judges.
 
(b)              In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on one or more of the felony appointment lists only if the District Judge approves the attorney’s placement on each such list.  In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on the misdemeanor appointment list only if the County Judge approves the attorney’s placement on the misdemeanor list.
 
 
(c)              When applications are received, the District Judge shall evaluate applicants for each felony appointment list.  The judges will approve those attorneys:
 
(a)               who meet the objective qualifications set forth in Rule 4.03 for placement on the list; and
 
(b)              whom the judge considers t be actually competent to adequately handle cases associated with the list.
 
(d)              When applications are received, the County Judge shall evaluate applicants for the Misdemeanor List.  The judge will approve those attorneys:
 
(a)               who have met the objective qualifications set forth in Rule 4.03 for placement on the Misdemeanor List; and
 
(b)              whom the judge considers to be actually competent to adequately handle misdemeanor cases.
 

 
(d)              Alternative List
 
In the event an insufficient number of attorneys apply and qualify to be placed on the list as provided above, then the names of attorneys who have represented an accused in the appropriate court within the last two years may be placed on the list.  Only those attorneys who have exhibited competence to adequately handle cases to the judge of the appropriate court may be placed on the list.
 
(e)              An attorney may be removed from one or more public appointment lists by the judge for the corresponding court level whenever the judge determines that the attorney no longer meets the objective qualifications for that list or is not fully competent to adequately handle the category of cases associated with that list.  The judge may in his discretion remove an attorney from one or more lists, while continuing to approve the attorney for other lists.
 
4.05            Assignment of Attorneys:
 
The following method shall be used to assign attorneys from the appropriate public appointment list to represent individual defendants:
 
 

 
(d)              The District Judge or his designee will serve as appointing judge for all defendants charged with felonies, and the County Judge or his designee will serve as appointing judge for all defendants charged with misdemeanors.
 
(e)              The appointing person will:
 
(1)              receive all requests for appointment of counsel transmitted by the magistrate as provided in Rule 2;
 
(2)              determine whether each defendant requesting appointed counsel is indigent, as provided in Rule 3;
 
(3)              select and appoint appropriate counsel to represent each indigent defendant as provided in this Rule; and
 
(4)              cause all interested parties to be notified of the appointment as provided in Rule 6.
 

 
(c)                                      The judges have determined that an insufficient number of attorneys are available in the jurisdiction to allow for an effective random appointment procedure that will assure the most effective representation of the defendants.  The appointing judge will therefore appoint a lawyer whose name appears on the public appointment list that corresponds to the most serious offenses currently charged.  The judge shall allocate appointments among qualified attorneys reasonably and impartially and in a manner which is fair, neutral, and nondiscriminatory.
 
(d)                                      In unusual circumstances, if the judge making the appointment enters a written finding of good cause on the record, the judge may appoint any qualified, willing attorney regardless of whether the attorney’s name is on the appropriate list, so long as the attorney would qualify for placement on the list and the attorney agrees to accept the appointment.
 
(e)                                      Each attorney appointed under this Rule to represent the defendant in the trial court is to represent the defendant through trial and post-trial proceedings in the trial court.
 
(f)                                       At the conclusion of all proceedings in the trial court, including post-trial motions, if an indigent defendant wishes to file an appeal, the appointing judge will appoint a lawyer whose name appears on the Appellate List.
 
Rule 5.  Selection and Appointment of Counsel in Death Penalty Cases
 
5.01            Whenever a capital felony offense case is filed, the presiding judge in the district court in which the case is filed shall appoint two attorneys at the time the initial appointment is made, unless and until the state gives notice in writing that the state will not seek the death penalty.
 
5.02            Qualifications of Counsel.
 
Counsel for accused in alleged capital felonies in which the State of Texas seeks the death penalty shall be determined and appointed as provided in Article 26.052 of the Texas Code of Criminal Procedure.
 
Rule 6.  Notice of Appointment, Determination, and Contact with the Defendant
 
6.01    Notice of Determination that the Defendant is Not Indigent.
 
If the person making the appointment determines that a person who requests appointment of counsel is not indigent under the standards and procedures described in Rule 3, he or she will enter the finding on the person’s counsel request form, cause a copy to be returned to the person, and cause the original to be filed with the other orders in the case.
 
6.02    Notice of Determination that the Defendant is Indigent and Appointment of Counsel.
 
If the person making the appointment finds that the person who requests counsel is indigent, he or she will cause all information in the notice of appointment to be issued to the appointed counsel and to the indigent person, and to be filed with the orders in the case.  Appointed counsel will be notified by at least one of the following methods: telephone, facsimile, electronic mail, in person, or other immediate means of communication.
 
6.03            Attorney Contact with the Defendant.
 
The appointed attorney shall make the reasonable effort required under Article 26.04(j)(1) to contact the defendant by the end of the first working day after the date of the appointment, and shall have further duty to interview the defendant as soon as practicable after the attorney is appointed.

Rule 7.  Replacement of Appointed Counsel
 
7.01            Attorney Request.
 
A lawyer may be relieved from an appointment upon satisfying the judge that the lawyer has good cause for being relieved and that the client will not be prejudiced.
 
7.02            Judicial Determination.
 
The judge presiding over a criminal case may replace appointed counsel, only with the consent of the defendant, after entering written findings in the record showing good cause for the replacement and no prejudice to the defendant, including, without limitation:
 
(d)              current information about the defendant and charges indicates that counsel of different qualifications is appropriate for the defendant under these rules; or
 
(e)              replacement of appointed counsel in a death penalty case is required under Article 26.052(e) of the Code of Criminal Procedure.
 
7.03            Defendant request.
 
The judge presiding over the trial court proceedings in a criminal case will replace appointed counsel at the defendant’s request if:
 

 
(a)                                       the defendant request an attorney other than trial defense counsel for appeal or post-conviction habeas corpus proceedings; or
 
(b)                                      the defendant shows good cause for replacing appointed counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.
 
7.04            Appointing Replacement Counsel.
 
Whenever appointed counsel is replaced under this Rule, replacement counsel immediately shall be selected and appointed in accordance with the procedures described in Rule 4, 5, and 6.
 
 
Fee and Expense Payment Process
11/30/2009
Rule 8.  Attorney Fee Schedule and Compensation of Appointed Attorneys
 
8.01    Fee Schedule.
 
The County will pay appointed counsel a fee, as approved by a judge, according to a fee schedule adopted as provided under Article 26.05(b) of the Code of Criminal Procedure:
 
8.02            Judicial Determination of Attorney Compensation
 
The judge presiding over the case for which the appointed attorney seeks compensation will use the following procedures to review and approve the appropriate compensation:
 
(d)              The court may enter an order to compensate the attorney based upon the fee schedule described above.  If requested by the court, the appointed counsel must submit to the presiding judge, in a form acceptable to the judge, an itemization of the services performed and/or expenses claimed.
 
(e)              If an attorney disputes the amount paid, the attorney may file with the presiding judge an motion requesting payment.  The presiding judge hearing a motion under this rule will either approve the amount requested or enter written findings stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.
 
(f)               An attorney who files a motion under subparagraph (b) above and whose request for payment is disapproved may appeal the disapproval by filing a motion with the presiding judge of the administrative judicial region, as provided in Article 26.05(c) of the Code of Criminal Procedure.
 
(g)              The County will reimburse appointed attorneys for investigation and expert witness expenses incurred on behalf of an indigent client as provided under Articles 26.05(d) and 26.052(f) - (h) of the Code of Criminal Procedure.
Miscellaneous
11/30/2009
Deaf Smith Supplemental Plan
for Continuing Legal Education Requirements

A majority of the Juvenile Board having approved it, the following amendment to the Plan for Appointment of Counsel is adopted and supersedes any previous continuing legal education requirements of the plan as follows:

MINIMUM CONTINUNG LEGAL EDUCATION REQUIREMENTS

Appointment in Juvenile Cases. An attorney who meets the requirements of this rule may be appointed to represent an indigent juvenile detained for or accused of engaging in delinquent conduct or conduct indicating a need for supervision, if the attorney is otherwise eligible to be appointed under the Appointment of Counsel Plan.
An attorney may be appointed under this rule only if the attorney:
(1) Completes a minimum of six hours of continuing legal education pertaining to juvenile law during each 12 month reporting period. The first reporting period will begin on April 27, 2003, and then on the first day of each reporting period thereafter. Continuing legal education may include activities accredited under Section 4, Article XII, State Bar Rules, self-study, teaching at an accredited continuing legal education activity, attendance at a law school class or legal research-based writing; or
(2) Is currently certified in juvenile law by the Texas Board of Legal Specialization.

Reporting Period..
(a) Continuing legal education activity completed within a one-year period immediately preceding an attorney's initial reporting period may be used to meet the educational requirements for the initial year.
(b) 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 period's requirement. The carryover provision applies to one year only.
(c) To be included on the appointment list, each attorney must annually submit an affidavit to the county detailing the juvenile continuing legal education activities completed in the prior year. Alternatively, an attorney may annually submit documentation showing the attorney is currently certified as a specialist in juvenile law.

Emergency Appointment.
If no attorney who meets these continuing legal education or board certification requirements is available by the time an attorney must be appointed in a case, another attorney may be appointed. The person making an appointment shall give priority to an attorney with experience in juvenile law
 
 
Deaf Smith County Supplemental Plan
Procedures for Removal of Attorneys from the Court-Appointed List

The judges hearing misdemeanor and felony criminal cases, and a majority of the Juvenile Board having approved it, the following amendment to the Plan for Appointment of Counsel is adopted and supersedes any previous attorney removal procedures as follows:

Grounds for Removal
An attorney may be removed from the appointment list if the attorney:

  1. has twice or more failed to contact or interview clients in a timely manner as required by Article 26.04(j)(1), Code of Criminal Procedure;
  2. has submitted a claim for legal services not performed as specified in Article 26.05(e), Code of Criminal Procedure;
  3. fails to maintain compliance with each of the appointment list guidelines;
  4. has been found by a court to have provided ineffective assistance of counsel
  5. has violated a rule of professional responsibility;
  6. has been convicted of or received a deferred adjudication for any an offense, other than an offense punishable by a fine only;
  7. is under indictment or being formally charged with an offense, other than an offense punishable by a fine only; or
  8. has intentionally misrepresented statements on the application for the appointment list.
An attorney may also be removed from the appointment list for another stated good cause.

Referral
If a judge believes that an attorney has violated any of the provisions listed in the paragraph above, the judge may refer an attorney to the board of judges for removal from the appointment list. The referral must be in writing and shall clearly state the grounds that form the basis of the referral. No disciplinary action with respect to the attorney being retained or removed from the appointment list may be made without such a referral.

Notification/Hearing
Upon receiving an attorney referral, the board of judges shall notify the attorney in writing of the referral and inform the attorney of the grounds that form the basis of the referral. The notice shall also inform the attorney of the time and place the board of judges will meet to discuss the referral and give the attorney an opportunity to respond to the referral in writing or in person or both.

Action
After the board of judges meets and gives the attorney an opportunity to be heard, the board of judges shall determine whether the attorney should:
  1. remain on the appointment list at the same level;
  2. moved to an appointment list for indigent defendants charges with less serious offenses; or
  3. be removed from appointment list altogether.
The attorney may be removed from the appointment list or moved to an appointment list for indigent defendants charged with less serious offenses by a majority vote of the judges present. In addition, the majority of the judges may also vote to require the attorney to take other rehabilitative measures. Removals from any list may be probated. For removal or probated removals, the judges ordering the removal may require the completing of rehabilitative measures as a condition of probation or reapplication. An order of removal should state in the order the earliest date at which the attorney may apply for reinstatement. An attorney who was removed from an appointment list under "e;Grounds for Removal"e; number 7 or 8 shall be immediately reinstated upon providing proof that the charges were dismissed or that the attorney was acquitted, unless other grounds for removal exist against the attorney that would prohibit reinstatement.

The decision of the board of judges is final and may not be appealed.
 
 
 
Plan Documents
Deaf Smith Oldham District and County Court Affidavit of Indigence.docx (12/14/2017 11:17:50 AM) view
Deaf Smith Oldham District and County Court Attorney Fee Schedule.pdf (7/22/2010 3:00:29 PM) view
Deaf Smith Oldham District and County Court Attorney Fee Voucher.pdf (7/22/2010 3:00:41 PM) view
Deaf Smith Oldham District and County Court Magistrates Warning Form.doc (11/30/2009 3:35:06 PM) view
Deaf Smith Oldham District and County Court Magistrate’s Warning Form.docx (10/16/2013 9:58:44 AM) view