Panola Juvenile Board Plan
Preamble
10/29/2010

As required by the Texas Fair Defense Act, the Juvenile Board of Panola County, Texas approves the following plan for the qualifications of and appointment of attorneys to guarantee effective representation to juveniles whose families may be indigent.

It is the intent of this plan to comply with Section 51 of the Texas Family Code and with applicable provisions of Article 26.04 of the Texas Code of Criminal Procedure.

The Chairman of the Juvenile Board shall designate a Coordinator with the approval of the Juvenile Board. The Coordinator is responsible for the following:

-Maintain and update the list of qualified attorneys according to their designated categories

-Investigate and tract attorney qualification;

-Insure compliance with the policies and standards of the Task Force on Indigent Defense;

-Perform all other duties designated by the Juvenile Board;

Prompt Detention Hearings
10/29/2015

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
10/29/2015

 

Indigence Determination Standards

A. Definitions, as used in this rule:

"Indigent" means a person who is not financially able to employ counsel.

"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.

"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.

"The cost of obtained competent private legal representation" means the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.

Eligibility for Appointment

A child is presumed indigent if any of the following conditions or factors are present:

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.

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 100% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register;

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 a mental health facility is sought; or

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) determined responsible for the support of 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 consideration:

The nature of the charge(s);

Anticipated complexity of the defense;

The estimated cost of obtaining competent private legal representation for the matter(s) charged;

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) determined responsible;

child’s parent(s) income or the income of other person(s) responsible for the support of the child;

Source of income;

Assets and property owned by the child, child’s parent(s), or other person(s) determined responsible for the support of the child;

Outstanding obligations;

Necessary expenses; and,

The number and ages of any siblings of the child as well as other children residing in the household of child’s parent(s) or other person(s) determined responsible for the support of the child.

iii Factors NOT to be considered in determining indigence:

The resources available to friends or relatives of the child, other than the child’s parent(s) or other person(s) determined responsible for the support of the child, may not be considered in determining whether the child is indigent.

Only the child’s parent(s) or other person(s) responsible for the support of the child and the child’s financial circumstances as measured by the financial standards stated in this rule shall be used as a basis for determining indigence.

Indigence Proceedings:

The appointing authority can require the child and the child’s parent(s) or other person(s) determined responsible for the support of 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.

Information gathered for determining indigence, both in the affidavit of indigence and through examination, may not be used for any purpose other than determining if a child is (or is not) indigent or impeaching direct testimony of the child’s parent(s) or other person(s) determined responsible regarding the child’s indigence.

A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the time lines specified in these rules.

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.

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 expended on the case.

If the court determines that a child’s parent(s) or other person(s) determined responsible for the child has financial resources that enable him/her 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 if finds the child’s parent(s) or other persons(s) responsible for the child is able to pay.

Minimum Attorney Qualifications
10/29/2015

 

All attorneys licensed to practice law and who are a member in good standing with the State Bar of Texas are eligible to apply for appointment.

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  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.

 

Applicants must meet the following minimum qualifications to be considered:

General requirements.

All attorneys on the appointment list must ensure all information on their application is correct;

ii. An attorney shall complete a minimum of 6 hours of CLE in the area of juvenile law and procedure each year. All attorneys on the appointment list must file a certificate with the office of the Panola County Court at Law each year attesting to completion of the required CLE or submit documentation showing that the attorney is certified as a specialist in juvenile law. Continuing legal education activity completed within a one year period immediately preceding an attorney’s initial reporting period may be used to meet the education requirements for the initial year. Continuing legal education activity completed during any reporting period in excess of the minimum of 6 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only;

 iii. Must be knowledgeable in juvenile law and be aware of collateral consequences of a juvenile adjudication and disposition;

All attorneys shall comply with the Canons of Ethics and wit the Lawyer's Creed and shall require that all investigators, experts and others working for or under the direction of the attorney shall also comply with all appropriate ethical standards.

v The attorney shall be familiar with the Texas Rules of Evidence and shall have knowledge of the use of expert witnesses and evidence, including, but not limited to, psychiatric and forensic evidence.

vi May not have been the recipient of any public disciplinary action by the State Bar of Texas or any other attorney licensing authority of any state or the United States within the last two years.

 vii. An attorney shall have a secretary, receptionist, answering service or regularly monitored answering machine and office capable of receiving email, fax and telephone calls available at all times.

viii. An attorney must have the ability to produce typed motions and orders.

ix. Any attorney shall promptly notify the judges of any changes in information contained in his/her written request or of any matter that would disqualify the attorney by law, regulation, rule or under these guidelines from receiving appointments to represent indigent defendants.

x. Emergency appointment: If no attorney who maintains an office in Panola County who meets the continuing legal education or board certification requirements is available by the time any attorney must be appointed in the case, another attorney shall be appointed. The person making the appointment shall give priority to an attorney with experience in criminal and/or juvenile law.

xi. Attorneys must be approved by a majority of the Juvenile Board or judges to be placed on or removed from the appointment list.

CINS Charges or Delinquent Conduct, and Commitment to TYC Is Not an Authorized Disposition:

Meet the general requirements;

Must have a minimum of one (1) year work experience in juvenile law;

Must have observed or participated in at least :

-3 stipulated juvenile adjudications;

-3 contested juvenile adjudications;

-3 juvenile dispositions; and,

-3 detention hearings; and,

-Participated in at least 1 criminal or juvenile trial.

Delinquent Conduct, and Commitment to TYC Without a Determinate Sentence Is an Authorized Disposition:

Meet the general requirements;

Must have a minimum of one (1) year work experience in juvenile law;

Must have observed or participated in at least :

-3 stipulated juvenile adjudications;

-3 contested juvenile adjudications;

-3 juvenile dispositions; and,

-3 detention hearings; and,

-Participated in at least 3 criminal or juvenile trials.

Determinate Sentence Proceedings have been Initiated; or Proceedings for Discretionary Transfer to Criminal Court Have Been Initiated:

Meet the general requirements;

Must have a minimum of three (3) years work experience in juvenile law;

Must have observed or participated in at least :

-3 stipulated juvenile adjudications;

-3 contested juvenile adjudications;

-3 juvenile dispositions; and,

-3 detention hearings; and,

-Participated in at least 3 criminal or juvenile trials.

-Tried at least 3 criminal or juvenile cases as lead counsel.

Removal from List. An attorney may be removed from consideration for appointments by a majority of the Judges or by the Juvenile Board if the attorney intentionally or repeatedly does not fulfill the duties required by law, Attorney's Creed, Canons, local rules or the provisions of this plan.

Reinstatement to Appointment Lists

An attorney who was removed from the appointment list for non-completion of the required CLE hours may be immediately reinstated upon providing proof that the attorney has completed the required hours so long as the attorney otherwise meets the other qualifications under this Plan.

An attorney who has been removed from the appointment list for any other reason and who wishes to be reinstated must apply through the original process.

Duties of Appointed Counsel.

Notify the Court within 72 hours of the receipt of appointment;

Make every reasonable effort to:

Contact the child by the end of the first day after the date on which the attorney is appointed; and,

Interview the child as soon as practical after the attorney is appointed;

iii. Represent the child until:

The case is terminated;

The family retains counsel;

The attorney is relieved of his duties by the court or replaced by other counsel.

iv. Investigate the facts of the case and be prepared to present any factual defense that may be reasonable and arguably available to the child;

Brief the law of the case and be prepared to present any legal defense that may be reasonably and arguably available to the child;

Be prepared to negotiate with the prosecutor for the most favorable solution of the case as can be achieved though a plea agreement;

Be prepared to try the case to conclusion either with or without a jury;

Be prepared to file post-trial motions, give notice of appeal and appeal the case pursuant to the standards and requirements of the Texas Rules of Appellate Procedure;

Maintain reasonable communication and keep the child informed of the status of the case; and,

Advise the child on all matters involving the case and such collateral matters as may reasonably be required to aid the client in making appropriate decisions about the case.

Perform the attorney’s duty owed to the child in accordance with these procedures, the requirements of the Code of Criminal Procedure and the Texas Family Code, and applicable rules of ethics.

Manage attorney’s workload to allow for the provision of quality representation and the execution of the responsibilities listed in these rules in every case.

Prompt Appointment of Counsel
10/29/2015

Prompt Appointment of Counsel

A. Appointment of Counsel for Children in Detention

Prior to the detention hearing, the court shall inform the parties of t he 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.  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. [Sec. 54.01(b-1), FC]

ii. 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.

iii. If there is no parent or other responsible adult present, the court must appoint counsel or a guardian ad litem for the child.

iv. 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.

v. Upon appointment, the court administrator shall notify the appointed attorney by fax, email or personal contact of the appointment and the scheduled hearing time and date.

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 tele-conference. 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.

vii. 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.

viii. Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.

Appointment of Counsel for Children Not Detained on Intake

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:

1. The date a petition for adjudication or discretionary transfer hearing has been served on the child; or,

A motion to modify disposition seeking commitment to TYC or placing in secure correctional facility has been filed.

iIf 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
10/29/2015

 

Attorney Selection Process

A. The appointing authority will identify which of the appointment lists, discussed in the attorney qualifications section, is most appropriate based on the accusations against the child 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:

The child requesting does not understand the English language, in which case the judge will appoint an attorney whose name appears next in order and speaks the clients’ language, if one is available;

The child 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;

An initial detention hearing is scheduled and the first attorney on the list is unavailable; or

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 the proceedings may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, the following:

Counsel’s failure to appear at a court hearing;

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

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

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

The child requests an attorney, other than trial counsel, for appeal; or

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

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.

 

Fee and Expense Payment Process
10/29/2015

 

The fee schedule adopted by the County Court at Law and the 123rd District Courts of Panola County attached hereto shall remain in effect until amended by further order. No payment shall be made until the judge approves payment after submission of an attorney fee voucher. If the judge disapproves the requested amount of payment, the judge shall make written findings that the judge approves and each reason for approving an amount different from the requested amount.

Investigation Expenses and Expert Witness Fees: Counsel appointed 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. Whenever 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:

The type of investigation to be conducted or the type of expert to be retained;

Specific facts that suggest the investigation with result in admissible evidence or that the services of an expert are reasonable necessary to assist in the preparation of a potential defense; and,

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:

State the reasons for the denial in writing;

Attach the denial to the confidential request; and,

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), (9) & (h), Texas Code of Criminal Procedure.

Miscellaneous
12/1/2009

Waivers

The Panola County Juvenile Board retain authority by majority vote to waive any portion of this plan in exceptionally justified cases or when determined necessary for the fair and impartial administration of justice.

Plan Documents
Panola Juvenile Board Affidavit of Indigence.pdf (10/29/2010 2:53:16 PM) view
Panola Juvenile Board Attorney Application for Appointment.doc (10/31/2013 10:46:05 AM) view
Panola Juvenile Board Attorney Fee Schedule.docx (10/29/2010 2:43:51 PM) view
Panola Juvenile Board Attorney Fee Voucher.docx (11/4/2010 3:42:14 PM) view