Haskell, Kent, Stonewall and Throckmorton Juvenile Board Plan
39TH JUDICIAL DISTRICT JUVENILE BOARD’S AMENDED PLAN FOR TIMELY AND FAIR APPOINTMENT OF COUNSEL FOR INDIGENT JUVENILES APPEARING IN THE 39TH JUDICIAL DISTRICT COURT SITTING AS A JUVENILE COURT
EFFECTIVE DATE –JUNE 1, 2011
Be it remembered that on the date set out below, the District Judge of the 39th Judicial District of Texas, and the County Judges of the respective Counties comprising the 39th Judicial District Juvenile Board hereby ADOPT, ORDER, ESTABLISH, and ORDER PUBLISHED the following Amended Procedures, Rules, and Orders for the timely and fair appointment of counsel for juvenile indigent accused persons in the District Court of the 39th Judicial District Court Sitting as a Juvenile Court. This is the plan for all of the Courts in the 39th Judicial District to conform to the requirements of S.B.7, known as the Texas Fair Defense Act, passed by the Legislature of the State of Texas, and signed into law in 2001.
Prompt Detention Hearings
A. A child taken into custody must either be brought to a juvenile processing office without unnecessary delay where they may not be detained for longer than six hours pursuant to §52.025, Family Code, or another disposition authorized by §52.02, Family Code, including referral to the office designated by the juvenile board as intake for the juvenile court. The intake officer shall process the child according the requirement of §53.01, Family Code, and shall also inform the child and the child’s parents of the right to appointed counsel if they are indigent and provide a form for the purpose of determining eligibility for appointment of counsel. If the child is not released by intake, then a Detention Hearing shall be held not later than the second working day after the child is taken into custody unless the child is detained on a Friday, Saturday or listed holiday in which case the detention hearing shall be held on the first working day after the child is taken into custody.
B. Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct.
C. The detention hearing may be conducted without the presence of the child’s parent(s) or other responsible adult(s), however, in these cases the court must immediately appoint counsel or a guardian ad litem to represent the child.
D. The court shall provide the attorney for the child access to all written matter to be considered by the Court in making the detention decision.
Indigence Determination Standards
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
ii. “Net household income” in the case of a child is the income of the child’s parents or other person determined responsible for the support of the child. Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); net self-employment income (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the person determined responsible for the support of the child has no income or lesser income.
iii. “Household” means all individuals who are actually dependent on the child’s parent(s) or person(s) deemed responsible for the support of the child, for financial support.
iv. “The cost of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.
v. “CRPD” shall mean the Caprock Regional Public Defender, his office, or his Designee.
B. Eligibility for Appointment
i. A child is presumed indigent if any of the following conditions or factors are present:
1. At the time of requesting appointed counsel, a child is presumed indigent if the child’s parent(s) or other person(s) determined responsible for the support of the child is eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.
2. The net household income of the child’s parent(s) or other person(s) determined responsible for the support of the child does not exceed 125% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register;
3. The child’s parent(s) or other person(s) determined responsible for the support of the child is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought; or
ii. The child who does not meet any of the standards above shall nevertheless be considered indigent if the child’s parent(s) or other person(s) responsible for the child is unable to retain private counsel without substantial hardship. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:
1. the nature of the charge(s);
2. anticipated complexity of the defense;
3. the estimated cost of obtaining competent private legal representation for the matter(s) charged;
4. the amount needed for the support of the child, the child’s parent(s)/person(s) responsible, and other dependents of the child’s parent(s)/person(s) responsible;
5. child’s parent(s’) income or the income of other person(s) determined responsible for the support of the child;
6. source of income;
7. assets and property owned by the child, child’s parent(s), or other person(s) determined responsible for support of the child;
8. outstanding obligations;
9. necessary expenses; and
10. the number and ages of any siblings of the child.
iii. Factors NOT to be considered in determining indigence:
1. The resources available to friends or relatives of the child, other than the child’s parent(s) or other person(s) deemed responsible for the child, may not be considered in determining whether the child is indigent.
2. Only the child's parent(s) or other person(s) responsible for the child and the child’s financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
C. Indigence Proceedings:
i. The appointing authority can require the child and the child’s parent(s) or other person(s) responsible for the child to respond to questions about the child’s household financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
ii. Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:
1. Determining if child is (or is not) indigent; or
2. Impeaching direct testimony of the child or the child’s parent(s)/person(s) responsible regarding the child’s indigence.
iii. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules.
iv. A child determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the child’s financial circumstances occurs.
1. A child’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court. The child’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:
a. Evidence of a material change in the child’s parent(s)/person(s) responsible and the child’s financial circumstances; or
b. Additional information regarding the child’s parent(s)/person(s) responsible and the child’s financial circumstances that shows that they do not meet any of the standards for indigence contained in these rules.
2. If a child previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.
v. If the court determines that a child’s parent(s) or other person(s) responsible for the child has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the child’s parent(s) or other person(s) responsible for the child to pay during the pendency of the charges or, if found to have engaged in delinquent conduct or CINS, as court costs the amount that it finds the child’s parent(s) or other person(s) responsible for the child is able to pay.
Minimum Attorney Qualifications
To be eligible for appointment as Counsel for indigent Juveniles an attorney shall:
1. be licensed to practice law in the State of Texas;
2. be a member in good standing with the State Bar of Texas;
3. complete annually such continuing legal educations programs as required by the Texas Judicial Council and the State Bar of Texas;
4. professionally perform the duties and responsibilities of an attorney licensed by the State of Texas.
5. be approved by a majority of judges trying juvenile cases.
The Juvenile Board recognizes five (5) different levels of seriousness of Juvenile charges.
2. delinquency cases with no TYC commitment possible;
3. delinquency cases with TYC commitment possible;
4. determinate sentence cases;
An attorney appointed to represent an indigent Juvenile charged in a CINS matter or a delinquency case where no TYC commitment is possible, shall meet the above set out requirements. An attorney appointed to represent an indigent Juvenile charged in a delinquency case where TYC commitment is possible, shall meet the above set out requirements and have one (1) years experience practicing law and representing Juveniles in less serious charges. An attorney appointed to represent an indigent Juvenile in determinate sentence cases and certification cases shall meet the above set out requirements and have at least three (3) years experience practicing law and have represented at least three (3) Juveniles in delinquency proceedings where TYC commitment was possible.
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 January 1, 2010, 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.
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. 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.
To be considered for appointment, each attorney must annually submit an affidavit to the Court 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.
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 Court shall give priority to an attorney with experience in criminal or juvenile law, respectively.
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.
The CRPD is eligible for appointment as Counsel to indigent juveniles in Stonewall and Kent Counties on all five levels of charges.
Prompt Appointment of Counsel
A. Appointment of Counsel for Children in Detention
i. Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct.
ii. Unless the court finds that the appointment of counsel is not feasible due to exigent circumstances, the court shall appoint counsel within a reasonable time before the first detention hearing is held to represent the child at that hearing.
iii. Prior to the initial detention hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the detention decision.
iv. If there is no parent or other responsible adult present, the court must appoint counsel or a guardian ad litem for the child.
v. If the juvenile is detained, the child has an immediate right to counsel. If counsel has not already been appointed, the court must either appoint counsel or direct the juvenile’s parent or other responsible adult to retain an attorney promptly. The court may enforce an order to retain counsel by appointing an attorney to represent the child and requiring that the child’s parent or other responsible adult reimburse the court for attorneys’ fees.
vi. Upon appointment, the court administrator shall notify the appointed attorney by fax, e-mail, or personal contact of the appointment and the scheduled hearing time and date.
vii. The appointed attorney shall make every reasonable effort to contact a child in detention by the end of the first working day after receiving the notice of appointment or to inform the court that the appointment cannot be accepted. Contacting the child in detention may be by personal visit (including contact during a detention hearing), by phone, or by video teleconference. Contacting the court may be by fax, email, phone or personal visit. A court-appointed attorney shall contact the child, in one of the ways mentioned above, no less than once every ten working days while the child remains in detention.
viii. An attorney appointed for a detention hearing shall continue to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court. Release of the child from detention does not terminate the attorney’s representation.
ix. Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.
B. Appointment of Counsel for Children not Detained at Intake
i. If the child is released from detention and if a petition to adjudicate or a motion to modify is filed, the juvenile court will use the financial forms gathered at intake to make a determination of indigence. If no financial information is available, the juvenile court shall promptly summon the child’s parent/guardian/custodian to the court so that financial information may be gathered for a determination of indigence.
ii. If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:
a. The date a petition for adjudication or discretionary transfer hearing has been served on the child; or
b. A motion to modify disposition seeking commitment to TYC or placing in secure correctional facility has been filed.
iii. If the family does not qualify for appointed counsel or if the parent or guardian is not available, and the family fails to provide an attorney, the juvenile court may appoint an attorney in any case in which it deems representation necessary to protect the interests of the child.
iv. The prosecuting attorney/court clerk shall notify the juvenile court upon the filing of and return of service of a motion to modify or the return of service of a petition for adjudication or discretionary transfer.
Attorney Selection Process
The Judges of the Juvenile Courts of the 39th Judicial District shall allocate all appointments for indigent Juveniles among qualified attorneys in a reasonable and impartial manner which is fair, neutral and nondiscriminatory. The Juvenile Board finds that there are either no qualified attorneys or too few qualified attorneys within the confines of the 39th Judicial District and/or the Counties located in said District, and the Counties that surround said District to comply with the requirements of the Texas Fair Defense Act, in establishing a juvenile appointment list. The Juvenile Board finds that it is necessary to adopt the alternate program as set out herein.
After a Judge, sitting as a Juvenile Court Judge, determines that the family of the Juvenile is indigent and requests counsel, the District Judge in Stonewall and Kent Counties, sitting as a Juvenile Court Judge, will first contact CRPD and if CRPD cannot accept the case, then an attorney who meets the qualifications hereinafter set out and determine that said attorney has the ability to represent the Juvenile and has the time required to represent the Juvenile, prior to appointing said attorney. The District Judge in Haskell and Throckmorton Counties, sitting as a Juvenile Court Judge has no obligation to first contact the CRPD. In selecting a qualified attorney for appointment in a juvenile case, the Judge shall not appoint an attorney to more than five (5) separate Juvenile cases pending in any one county in the 39th Judicial District at any one point in time.
In Stonewall and Kent Counties, the CRPD will be appointed as many times as necessary to achieve adequate workload for the CRPD without exceeding its available resources.
Capital Felony Cases in Kent, Stonewall and Throckmorton Counties
i. The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless the court makes a finding of good cause on the record to appoint private counsel.
1. If a co-defendant requests appointment of counsel and is determined to be indigent, the Appointing Authority shall appoint counsel pursuant to the standards and procedures stated in this Section.
2. If private counsel is appointed to a co-defendant, rather the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in this Section.
ii. The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if:
1. A conflict of interest exists;
2. The Office has insufficient resources to provide adequate representation;
3. The Office is incapable of providing representation in accordance with the rules of professional conduct;
4. Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or
5. The Office shows other good cause for refusing appointment.
iii. The Appointing Authority shall immediately contact the attorneys appointed by phone, fax, e-mail or in person and notify the attorneys of the appointment and the last known location of the defendant.
Fee and Expense Payment Process
Court appointed counsel shall receive fair and reasonable compensation for representing Juveniles. Said compensation will be according to the following fee schedule:
Compensation for time spent by Counsel, out of Court on Juvenile
cases shall be not less than forty dollars and no cents ($40.00) per hour or
more than eighty-five dollars and no cents ($85.00) per hour.
Compensation for time spent by Counsel in Court on Juvenile cases
shall be not less than fifty dollars and no cents ($50.00) per hour or more
than one hundred dollars and no cents ($100.00) per hour.
Each appointed attorney shall prepare an affidavit itemizing the time and services performed and any expenses claimed on a verified form and submit it to the Judge of the Juvenile Court within thirty (30) days of the conclusion of said Attorney's representation.
The Juvenile Judge will review said statement and either approve the same or make written findings stating the amount of payment approved and the reasons for approving an amount different from that requested.
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.
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 reason 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
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.
Payment rules for assigned attorneys do not apply to the CRPD, the CRPD shall be compensated in accordance with its budget as set by Dickens County Commissioners Court.
Haskell Kent Stonewall Throckmorton Juvenile Board Affidavit of Indigence.doc (5/21/2014 9:15:07 AM) view
Haskell Kent Stonewall Throckmorton Juvenile Board Attorney Fee Schedule.doc (10/24/2019 11:10:24 AM) view
Haskell Kent Stonewall Throckmorton Juvenile Board Attorney Fee Voucher.doc (12/1/2009 10:31:13 AM) view
Haskell Kent Stonewall Throckmorton Juvenile Board Motion to Pay Court Appointed Attorney.doc (12/1/2009 10:28:36 AM) view
Haskell Kent Stonewall Throckmorton Juvenile Board Order Appointing Counsel.doc (12/1/2009 10:20:05 AM) view
Haskell Kent Stonewall Throckmorton Juvenile Board Request for Appointing Counsel.doc (12/1/2009 10:18:22 AM) view
Haskell Kent Stonewall Throckmorton Juvenile Board Warning of Right of Counsel.doc (12/1/2009 10:16:35 AM) view