Parker District Court Plan
At the probable cause hearing held by a magistrate, each defendant shall be provided an opportunity to request court appointed counsel, if indigent. Each requesting defendant shall complete and file a sworn Affidavit of Indigence and Request for Court Appointed Counsel (“Affidavit and Request”) with the magistrate, on a form approved by the Administrative Judge for the District Courts with felony jurisdiction in Parker County. The magistrate will ensure that reasonable assistance is provided in completing the necessary forms for requesting appointment of counsel. If the defendant does not speak and/or understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with the Texas Code of Criminal Procedure Articles 38.30 and 38.31.
The magistrate shall immediately transmit the Affidavit and Request to the judge or court designee for the district court where the subject defendant’s case has been filed or, if no indictment has been returned, the magistrate shall transmit the Affidavit and Request for defendants whose last name begins with A-L to the judge or court designee of the 415th District Court and for defendants whose last name begins with M-Z to the judge or court designee to the 43rd District Court.
The magistrate shall deliver any Affidavit of Indigence and Request for Court Appointed Counsel to the court’s designee not later than one working day after the request is made. The magistrate may use any available means to insure that the Affidavit of Indigence and Request for Court Appointed Counsel is timely delivered.
Prompt Appearance Before a Magistrate. The law enforcement officer making the arrest and any officer who later has custody of an accused person shall ensure that the person is taken before a magistrate without unnecessary delay, but not later than 48 hours after the person is arrested, for proceedings under Article 15.17 of the Code of Criminal Procedure.(Article 14.06, Code of Criminal Procedure, Subsection (a).)
Magistrate must inform and explain right to counsel and right to appointed counsel to accused [Art. 15.17(a), CCP] Record must be made of: 1.) Magistrate informing the accused of the accused’s right to request appointment of counsel [Art. 15.17(e)(1), CCP] 2.) Magistrate asking whether accused wants to request appointment of counsel [Art. 15.17(e)(2), CCP] 3.) Whether the person requested court appointed counsel [Art. 15.17(e)(3), CCP]
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 [Art. 15.18(a-1), CCP]
Indigence Determination Standards
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
ii. “Net household income” means all income of the accused and spousal income actually available to the accused. Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); net self-employment income (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the accused has no income or lesser income.
iii. “Household” means all individuals who are actually dependent on the accused for financial support.
iv. “The cost of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.
B. Eligibility for Appointment:
i. An accused is presumed indigent if any of the following conditions or factors are present:
1. At the time of requesting appointed counsel, the accused or accused’s dependents are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing;
2. The accused’s net household income does not exceed 100% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register; or,
3. The accused is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought.
ii. An accused who does not meet any of the standards above shall nevertheless be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the accused’s dependents. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:
1. the nature of the criminal charge(s);
2. anticipated complexity of the defense;
3. the estimated cost of obtaining competent private legal representation for the matter(s) charged;
4. the amount needed for the support of the accused and the accused’s dependents;
5. accused’s income;
6. source of income;
7. assets and property owned;
8. outstanding obligations;
9. necessary expenses;
10. the number and ages of dependents; and,
11. spousal income that is available to the accused.
iii. Factors NOT to be considered in determining indigence:
1. The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.
iv. Only the accused's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
C. Indigence Proceedings:
i. The appointing authority can require the accused to respond to questions about the accused’s financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
ii. Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:
1. Determining if accused is (or is not) indigent; or,
2. Impeaching direct testimony of accused regarding the accused’s indigence.
iii. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the time lines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.
iv. An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused’s financial circumstances occurs.
1. An accused’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the accused, the accused’s attorney, or the attorney representing the state. The accused’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:
a. Evidence of a material change in the accused’s financial circumstances, as a result of which the accused does not meet any of the standards for indigence contained in these rules; or,
b. Additional information regarding the accused’s financial circumstances that shows that the accused does not meet any of the standards for indigence contained in these rules.
2. If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.
v. If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.
Minimum Attorney Qualifications
The Administrative Judge for the District Courts for Parker County, Texas, shall approve a list of eligible attorneys on or before December 31st of each year and such list shall be posted outside of the District Clerk’s office and available to the public upon request.
The “Affidavit of Licensed Attorney Requesting Appointment for Indigent Persons” shall be considered an ongoing application for each subsequent year. If during the calendar year or any subsequent calendar year there occurs a change of any material information contained in the “Affidavit” on file with the court, said attorney is required to notify the court immediately in writing of said change. Failure to immediately notify the court of any change of material information will subject the attorney to become ineligible to be included on the “List” and result in immediate removal.
To be eligible to be approved to represent indigent persons accused of felony offenses attorneys must maintain an office in Parker County with a Parker County telephone and fax number and meet the following standards:
1. Provide a person to answer the telephone and fax required above;
2. Be a member in good standing with the State Bar of Texas;
3. Perform duties and responsibilities of a licensed attorney for the State of Texas professionally;
4. Complete annually such Continuing Legal Education programs as required by the Texas Judicial Council which shall include at least 6 hours of Continuing Legal Education in handling criminal cases;
5. Have participated in at least 10 misdemeanor criminal trials or 5 felony criminal trials of which at least half must have been before a Jury; either as first or second chair attorney; and,
6. Meet any applicable qualifications specified by the Task Force on Indigent Defense as specified by Article 26.04(d)(3), Texas Code of Criminal Procedure; and,
7. The attorney shall be in compliance with Article 26.04(j)(4), Texas Code of Criminal Procedure having timely submitted the required information to the Texas Indigent Defense Commission.
All attorneys not meeting the standards listed herein above shall be removed from the appointments list.
To be eligible for appointment to represent a defendant upon appeal, an attorney must meet all requirements set out above and have participated in at least three appeals of criminal cases.
Any attorney requesting appointment to represent indigent defendants in capital cases in which the death penalty is sought must meet all requirements set forth in Art. 26.052, Code of Criminal Procedure and be on the appointment list provided by the Region 8 Committee.
Any attorney during the calendar year who becomes eligible to be approved to represent indigent defendants in felony criminal cases may submit application to be included on the list of attorneys eligible for appointment to the office of the Administrative Judge for the District Courts. Upon approval of said application the attorney’s name shall be included on the above described list of attorneys eligible to represent indigent persons accused of a felony offense in Parker County.
Court appointed counsel on the approved list must maintain an office in Parker County with a telephone which is answered by a receptionist or answering service from 8:00 a.m. to 12:00 p.m. and from 1:00 p.m. to 5:00 p.m. Monday through Friday (except for days designated as official holidays by the Commissioner’s Court in Parker County) and which receptionist or answering service can promptly locate the attorney and notify said attorney of appointment or hearing setting. Court appointed counsel on the approved list must maintain an electronic facsimile machine ("FAX") number to which document transmittals may be received 24 hours a day, seven days a week. All telephone or FAX numbers shall be provided to the Court Coordinator and to the office of the District Clerk in writing and if subsequent changes are made said changes must be reported in writing immediately.
Court appointed counsel shall comply with all laws, rules, procedures, and ethical provisions for providing reasonable assistance of counsel to their client.
Court appointed counsel shall maintain a high standard of ethical conduct and always be completely candid with the trial court.
Court appointed counsel shall timely inform their client of matters relating to the preparation, trial, and disposition of the case, appellate and writ rights, deadline, and procedures for proper processing, and such other matters as necessary to provide reasonable assistance of counsel.
Court appointed counsel shall represent a defendant through judgment in the trial court and all notices of appeal are given, or the court after entering a finding of good cause on the record, relieves the attorney and/or replaces the attorney with other counsel.
A court may replace an appointed attorney if the attorney does not make an effort to contact the defendant by the end of the first working day if the defendant is in custody, or does not interview the defendant as soon as possible, or may sanction said attorney for violation of these provisions.
The District Judge may remove an attorney from consideration of appointments if the attorney intentionally or repeatedly does not fulfill the duties required by law, rules, local rules, or provisions for providing reasonable assistance of counsel or complying with the requirements for inclusion on the approved list for counsel for indigent accused persons.
An attorney may be removed from the appointment list if the District Judge finds that the attorney submitted a claim for legal services not performed by the attorney or the attorney habitually submits a request for compensation that is found to not be reasonable and necessary for a fair resolution to the matter before the court.
An attorney found to have provided ineffective representation or determined to be incompetent shall be ineligible to be listed or receive appointments.
Appointed attorneys who become ineligible for appointment will be removed from the appointment list and may only be reinstated by the Administrative Judge for the District Courts. The judge or court designee for the county will provide notice to the attorney removed from the list within three (3) working days of the date of removal.
In the event qualified attorneys are not available, in the sole judgment of the Presiding District Judge, an attorney meeting all the standards except Parker County office, telephone and fax may be appointed.
On or before December 31st of each calendar year, the Administrative Judge for the District Courts shall annually review and reform the list of attorneys eligible as court appointed counsel and cause same to be posted outside the District Clerk’s office and made available to the public upon request. To be considered for inclusion on the List of Attorneys Eligible for Appointment of Persons Accused of Felony Offenses, an attorney must meet the CLE requirements specified in the plan and provide written verification of the required CLE to the judge or court’s designee by November 30th of each calendar year.
Attorneys must be approved by majority of judges to be placed on the appointment list [Art. 26.04, CCP]
Prompt Appointment of Counsel
The judge for each district court shall either designate a person for the timely and fair appointment of counsel for indigent persons accused of a felony offense in Parker County, or perform said duties personally. The judge or designee for each district court shall have the following responsibilities:
1. Maintain and update the list of qualified attorneys according to their designated categories;
2. Manage intake procedures;
3. Track cases and assignments to avoid duplication;
4. Supervise and monitor attorney fee payments;
5. Maintain the rotation schedule of appointed attorneys;
6. Coordinate with the Office of Court Administration;
7. Insure compliance with the policies and standards of the Task Force on Indigent Defense;
8. Assist in all reporting requirements; and,
9. Perform all other duties designated by the district judge.
The judge or designee for each district court shall review the Affidavit of Indigence and Request for Court Appointed Counsel and such other information bearing on the financial status of the defendant and make a determination of indigence status and appoint counsel subject to approval by the district judge where required by law within three (3) working days after receiving the request for court appointed counsel, if the defendant is in custody. If the defendant is not in custody and is found to be indigent, then counsel shall be appointed, if requested, at the defendant’s first court appearance prior to any adversarial hearings on said cause.
The district judge, upon a finding of indigence and request for court appointed counsel, shall sign an Order Appointing Counsel and cause said order to be delivered to the attorney. The judge or court designee for the county shall immediately contact the attorney by phone, fax, in person or via email and notify said attorney of the appointment and the last known location of the defendant.
Court appointed counsel shall make every reasonable effort to contact the defendant not later than the end of the first working day after appointment and to interview the defendant as soon as practicable, if the defendant is in custody. If the defendant is not in custody, then court appointed counsel shall make every reasonable effort to contact the defendant no less than ten days prior to any scheduled court date and maintain contact with the defendant on a regular basis until representation in concluded.
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 court appointed 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: (see “Appointment Authority” below). The defendant may submit these forms to: (see “Appointment Authority” below).
The court will rule on all requests for counsel submitted in this manner.
If no case has been filed in the trial court, the appointing authority for misdemeanors is: Brandy Ochs ~ firstname.lastname@example.org
(817) 598-6179 phone; (817) 598-6119 facsimile
If no case has been filed in the trial court, the appointing authority for felonies is: Jolene DuBoise ~ email@example.com
(817) 594-7343 phone; (817) 598-6108 facsimile
If the case has been filed in the trial court, the appointing authority is:
County Court at Law No. 1: Brandy Ochs ~ firstname.lastname@example.org (817) 598-6179 phone; (817) 598-6119 facsimile
County Court at Law No. 2: Susan Hinsley ~ email@example.com (817) 598-6019 phone; (817) 598-6164 facsimile
43rd District Court: Jolene Duboise ~ firstname.lastname@example.org (817) 594-7343 phone; (817) 598-6108 facsimile
415th District Court: Sheila Scruggs ~ email@example.com (817) 598-6102 phone; (817) 598-6161 facsimile
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.
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 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.
Attorney Selection Process
If a defendant is determined to be indigent and has requested a court appointed attorney, then the judge or court designee shall appoint an attorney from the list of attorneys eligible for appointment to represent indigent persons accused of felony offenses in Parker County. The appointment required to be made under this subsection shall be done on a rotation basis in accordance with Code of Criminal Procedure Sec. 26.04. Notwithstanding the rotation requirements provided in Code of Criminal Procedure Sec. 26.04, the judge or court designee shall, whenever practical, endeavor to reappoint an attorney on any subsequent proceedings who has previously represented the defendant in the same cause or causes. Additionally, whenever practical, if a defendant has multiple cases pending before the court, the judge or court designee shall appoint the same attorney in all cases pending before the court.
Capital Felony Appointment Procedures and Rules
The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases 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.
Fee and Expense Payment Process
Counsel appointed to represent indigent defendants shall be reimbursed for reasonable expenses incurred with prior court approval for purposes of investigation and expert testimony and shall be paid a reasonable attorney’s fee for performing services based on the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel, as follows:
1. Compensation for time spent by counsel for out-of-court or in court, found by the court to be reasonable and necessary for the trial and preparation of the case, shall be not less than $60 per hour and no more than $200 per hour.
Total compensation per day shall not exceed $1,000 unless the court finds exceptional circumstances or that good cause for exceeding said total amount exists.
2. Compensation for time spent in preparation and appeal of the cause to any higher court, found by the court to be reasonable and necessary, shall be not less than $60 per hour and no more than $200 per hour.
Total compensation for time spent on appeal of a cause shall not exceed $3,500 unless the court finds exceptional circumstances or that good cause for exceeding said total amount exists.
Attorneys may file a request for compensation for reasonable and necessary time spent in preparation and trial of a cause in which counsel has been appointed by the court at any time after completion of the work. Counsel’s request for compensation must be presented to the court not more than thirty (30) days of completion of services to the defendant.
Failure of an attorney to timely file with the court a request for compensation as set forth in this plan may result in counsel waiving or forfeiting his right to compensation as requested.
If an attorney's request for compensation is not fully approved by the court or is reduced below the minimum per hour rate, the attorney may appeal the court’s decision to the Presiding Judge of the Eighth Administrative Region as provided in Section 26.05, Code of Criminal Procedure.
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 the services of an expert are reasonably necessary to assist in the preparation of a potential defense; and,
(3) an 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 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; however, unreasonable or unnecessary expenses may not be approved.
Payments shall be in accordance with a schedule of fees adopted by the judges [Art. 26.05(b), CCP]. No payment shall be made until judge approves payment after submission of attorney fee voucher [Art. 26.05(c), CCP].
Parker District Court Affidavit of Indigence.doc (10/27/2015 1:53:26 PM) view
Parker District Court Attorney Application for Appointment.doc (10/27/2015 1:59:06 PM) view
Parker District Court Attorney Fee Schedule.doc (12/1/2009 10:55:46 AM) view
Parker District Court Attorney Fee Voucher.doc (12/1/2009 10:45:23 AM) view
Parker District Court Magistrates Warning Form.doc (12/1/2009 10:42:12 AM) view
Parker District Court Waiver of Counsel.doc (10/28/2015 5:30:14 PM) view