STANDARDS AND PROCEDURES RELATED TO

APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS

IN SHERMAN COUNTY

 

 

To implement the Texas Fair Defense Act (FDA, Acts 2001, 77^th Leg.), the following Local Rules of Administration are adopted under Texas Local Government Code § 74.093, effective January 1, 2002:

 

 

Rule 1.    Applicability

 

1.01   The rules in this Part will govern criminal procedures in all Municipal, Justice of the Peace, County, and District Courts in this County, notwithstanding any other local rule to the contrary.

Rule 2.    Procedures for Timely Appointment of Counsel

 

2.01    Prompt Appearance Before a Magistrate

 

          (a)  The Magistrates 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 a person was first arrested and when the person was taken into custody.

 

          (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 unnessesary 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 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: 

 

                   (1)  The Magistrate shall specifically inform the person arrested of the person’s right to request appointment of counsel if the person cannot afford counsel.

 

                   (2)  The Magistrate shall specifically ask the person arrested whether the person wants to request appointment of counsel.

 

                   (3)  The Magistrate shall specifically inform the person of the procedures for requesting appointment of counsel.

 

                   (4)  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.

 

                   (5)  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.

  

                   (6)  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.

 

                   (7)  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 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 of 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 the forms requesting appointment of counsel.  The forms requesting appointment of counsel shall be transmitted without unnecessary delay so that the person making the appointment receives the forms no later than 24 hours after the request is made.

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.

(a)  As soon as possible following arrest, and in any event not later than the Article 15.17 hearing, the Sheriff 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.

 

(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 in accordance with Rules 2.03 and 4.05.

 

(c)  The appointing Judge will determine whether the person is indigent after a consideration of the person’s income, source of income, assets and property owned, outstanding obligations and necessary expenses, children (number and age), and spouse’s income that is available to the person.  A defendant whose available income is at or below 150% of the current Federal Poverty Guidelines shall be determined to be indigent.  A person’s posting of bail or ability to post bail shall not be considered in determining a person’s indigence, except to the extent that it reflects the person’s financial circumstances as measured by these listed factors.  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 by the Magistrate, or the Judge presiding over the case 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.

 

(f)  A defendant determined to be indigent is presumed to remain 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.

Rule 4.     Selection and Appointment of Counsel

 

4.01  The County is served by a contract Public Defender appointed by the County Commissioners’ Court and the Public Defender will be appointed in all cases unless disqualified.

 

4.02   In any case where the Public Defender is disqualified or unable to be appointed, the Judge will appoint a qualified attorney to represent the person.  To be considered for appointment, each attorney must:

 

                   (1)  apply to be included on the list;

 

                   (2)  be approved by a majority of the Judges hearing criminal cases;

 

                   (3)  have demonstrated the expertise to represent persons in misdemeanor and felony cases;

 

                   (4)  be a member of the State Bar of Texas; and

 

                   (5)  meet all qualifications specified by the Task force on Indigent Defense.

 

 4.03     The trial Judges in the County shall:

 

                   (1)  compile and maintain a list of all attorneys meeting the qualifications of Rule 4.02 and shall appoint attorneys from the list on a rotational basis;

 

                   (2)  ensure that each defendant charged with an offense punishable by confinement who appears in Court without counsel has an opportunity to confer with appointed counsel  

                         before judicial proceedings commence;

 

                   (3)  ensure that each appointed attorney performs their duty in accordance with the procedures, statutes, and applicable rules of ethics; and

 

                   (4)  ensure that each appointment in the County shall be made in accordance these rules.

                   (5)  ensure that attorneys submit by October 15 of each year a report of the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county for                              criminal and juvenile delinquency cases for the prior 12 months (beginning on October 1 and ending on September 30). 

 

4.04   In all capital cases in which the death penalty is sought, all appointments shall be made in accordance with these rules and the provisions of Article 26.052 of the Code of Criminal Procedure.

 

 

69^th District Supplemental Plan

For Continuing Legal Education Requirements

 

The Judges hearing misdemeanor and felony criminal cases having approved it, the following amendment to the Plan for Appointment of Counsel is adopted and supersedes any continuing legal education requirements for the plan as follows:

 

MINIMUM CONTINUING LEGAL EDUCATION REQUIREMENTS

 

Appointment in Criminal Cases.  An attorney who meets the requirements of this rule may be appointed to represent an indigent person arrested for or charged with a crime, 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 criminal 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 XI, 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 criminal 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 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 criminal 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 criminal law.

 

Emergency Appointment.

If no attorney who meets these continuing legal education or board certification requirements is available at the time an attorney must be appointed in a case, another attorney may be appointed.  The person making appointment shall give priority to an attorney with experience in criminal or juvenile law, respectively.

 

Executed this the _________ day of ____________________, 20_____

 

 

__________________________________             ___________________________________

Ron Enns, 69^th District Judge                                David Field, Dallam County Judge

 

 

__________________________________             ____________________________________

Ronnie Gordon, Hartley County Judge                   Terri Beth Carter, Sherman County Judge

 

 

__________________________________

Rowdy Rhoades, Moore County Judge

 

2.04  Prompt Appointment of Counsel. 

 

        Counsel shall be appointed in a manner specified in Rule 4 below, as soon as possible, but not later than the end of the third working day after the  

        date on which the appointing Judge or person(s) designated by the Judges to appoint counsel receives the defendant’s request for counsel.  “Working day” means Monday through     

        Friday, except for official state holidays.

 

        If an indigent 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.

 

        If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement: 

         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. 

         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.

          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 District Clerk. The defendant may submit these forms to the District Clerk. The court will rule on all requests for counsel submitted in this manner. 

Rule 4.     Selection and Appointment of Counsel

 

4.01    The County is served by a contract Public Defender appointed by the County Commissioners’ Court and the Public Defender will be appointed in all cases unless disqualified.

 

4.02   In any case where the Public Defender is disqualified or unable to be appointed, the Judge will appoint a qualified attorney to represent the person.  To be considered for appointment, each attorney must:

 

                   (1)  apply to be included on the list;

 

                   (2)  be approved by a majority of the Judges hearing criminal cases;

 

(3)  have demonstrated the expertise to represent persons in misdemeanor and felony cases;

 

                   (4)  be a member of the State Bar of Texas; and

 

                   (5)  meet all qualifications specified by the Task force on Indigent Defense.

 

 4.03     The trial Judges in the County shall:

 

                   (1)  compile and maintain a list of all attorneys meeting the qualifications of Rule 4.02 and shall appoint attorneys from the list on a rotational basis;

 

                   (2)  ensure that each defendant charged with an offense punishable by confinement who appears in Court without counsel has an opportunity to confer with appointed counsel before judicial proceedings commence;

 

(3)  ensure that each appointed attorney performs their duty in accordance with the procedures, statutes, and applicable rules of ethics; and

 

                   (4)  ensure that each appointment in the County shall be made in accordance these rules.

 

4.04   In all capital cases in which the death penalty is sought, all appointments shall be made in accordance with these rules and the provisions of Article 26.052 of the Code of Criminal Procedure. The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases in counties that are part of the regional office unless good cause exists to appoint private counsel. 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.

APPOINTED COUNSEL FEE SCHEDULE

69^TH Judicial District

Moore, Dallam, Hartley, and Sherman Counties, Texas

 

Pursuant to Article 26.05 of the Texas Code of Criminal Procedure, the following minimum fee schedule for the compensation of Court appointed counsel under Articles 26.04 et seq of the Texas Code of Criminal Procedure and Article 51.10 et seq of the Texas Family Code are adopted by the County and County Court at Law and District Court of Moore, Dallam, Hartley and Sherman Counties, Texas.

 

          I.  Felonies:

 

                   A.      Hourly Compensation - $100 per hour as verified by counsel’s

                             application for compensation

 

                   B.       Pleas of guilty:

                             1.  State jail and third degree felonies - $600

                             2.  First and second degree felonies - $750

 

                   C.       Capital Felonies: compensated pursuant to I.A. above

 

                   D.      Uncontested revocation of probation - $400

 

                   E.       Appellate and Writ work: compensated pursuant to I.A. above

 

          II.  Juvenile Cases:

 

                A.      Uncontested plea - $400

                   B.       Hourly compensation pursuant to I.A. above for all other juvenile

                             matters including appellate work.

 

          III.   Misdemeanor County Court cases:

 

                A.      Uncontested plea - $300

                   B.       Hourly compensation - $60

 

 

          APPROVED AND ADOPTED THIS _____DAY OF ________, 2009.

 

 

____________________

RON ENNS

69^TH Judicial District Judge

 

 

Rule 5.                 Paying for Indigent Defense

 

5.01   An attorney appointed other than the Public Defender to represent the interest of a person shall be paid from the general fund of the County according to the Appointed Counsel Fee Schedule adopted each year by the Judges of the County and sent to the Commissioners’ Court, a copy of which is attached as Form #1.

 

5.02    All claims for compensation made under these rules shall be submitted on a form adopted by the Task Force for Indigent Defense, a copy of which is attached as Form #2, and no payment shall be made until such form is submitted to and approved by the trial Judge.

 

5.03   The provisions of Article 26.05 of the Code of Criminal Procedure shall govern all claims under these rules.

 

 

Sherman County Supplemental Plan

for Appointment of Counsel

In County Court

 

Two-thirds of the Judges hearing misdemeanor criminal cases and felony criminal cases, having approved it, this Supplemental Plan is added to and is now a part of the Plan for Appointment of Counsel as follows:

 

Investigative and expert expenses.

Counsel appointed in a non-capital case shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.  Expenses incurred with and without prior Court approval shall be reimbursed, according to the procedures set forth below.  When possible, prior Court approval should be obtained before incurring expenses for investigation and for mental health and other experts.

 

 Procedure With Prior Court Approval:

 

Appointed counsel may file with the trial Court a pretrial ex parte confidential request for advance payment of investigative and expert expenses.  The request for expenses must state, as applicable:

 

(1)  the type of investigation to be conducted or the type of expert to be retained;

(2)  specific facts that suggest the investigation will result in admissible evidence or

 that the services of an expert are reasonably necessary to assist in the preparation of

 a potential defense; and

(3)  an itemized list of anticipated expenses for each investigation or each expert.

 

 The Court shall grant the request for advance payment of expenses in whole or in part  if the request is reasonable.  If the Court denies in whole or in part the request for expenses, the Court shall:

 

(1)  state the reasons for the denial in writing;

(2)  attach the denial to the confidential request; and

(3)  submit the request and denial as a sealed exhibit to the record.

 

 Procedure Without Prior Court Approval:

 

Appointed counsel may incur investigative or expert expenses without prior approval of the Court.  On presentation of a claim for reimbursement, the Court shall order     reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.  Unreasonable or unnecessary expenses will not be approved.

 

Articles 26.05(d), 26.052(f), (g) & (h), Code of Criminal Procedure

 

 

 

_____________________________________

Signature

 

 

_____________________________________

Printed Name

 

 

_____________________________________

Title

 

 

_____________________________________

Date  

 

 

                                           

 

These Local Rules approved this 30^th day of December, 2002

 

 

 

__________________________

Administrative District Judge

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