Smith District Court Plan
Prompt Magistration
10/26/2015

I.      Conduct Prompt and Accurate Magistration Proceedings

A.    Arresting Officer Responsibilities

                                i.            The arresting officer, or the person having custody of the arrestee, shall ensure that every arrestee shall be brought before a magistrate without unnecessary delay, but not later than 48 hours after the person is arrested. 

                              ii.            Unless arrested pursuant to an arrest warrant, bench warrant, capias, or other order of a magistrate or judge, necessary forms establishing probable cause must be completed and filed at the time an arrestee is booked into jail for any felony or misdemeanor punishable by incarceration.

                            iii.             Release of defendants arrested without warrant

1.      A person arrested for a misdemeanor without a warrant and who is detained in jail must be released not later than the 24th hour after arrest, on a bond in an amount not to exceed $5,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense. 

2.      A person arrested for a felony without a warrant and who is detained in jail must be released not later than the 48th hour after arrest, on a bond in an amount not to exceed $10,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense. 

3.      If requested by the state, a magistrate may postpone the release of the defendant for not more than 72 hours after the defendant's arrest if a probable cause determination has not been made, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

B.     Magistrate Duties

                                i.            At the Magistrate’s hearing, the magistrate should determine if accused can speak and understand English, or if the defendant is deaf.

                              ii.            After making such determination, the magistrate shall, in an appropriate manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31, do the following:

1.      Advise the accused of the accusation against him/her and any affidavit filed therewith;

2.      Admonish the accused of:

a.       The right to retain counsel;

b.      The right to remain silent;

c.       The right to have an attorney present during any interview with peace officers or attorneys representing the state;

d.      The right to terminate an interview at any time;

e.       The right not to make a statement and that any statement made by the accused may be used against him/her; and

f.       The right to an examining trial.

3.      Inform the accused of the right to appointed counsel if the person cannot afford counsel and the procedures for requesting appointment of counsel.

4.      Inquire as to whether accused is requesting that counsel be appointed.

5.      Provide accused persons requesting appointed counsel with necessary forms for requesting appointment of counsel and ensure that reasonable assistance in completing required forms is provided to the accused at the time of the magistrate’s hearing.

6.      If the magistrate has reason to believe the accused is not mentally competent, the magistrate shall enter a request for counsel on behalf of the accused. Such a request will alert the appointing authority that counsel competent to represent mentally ill persons should be appointed.

                            iii.            In cases where the individual was arrested without an arrest warrant, bench warrant, capias, or other order of magistrate or judge, the magistrate shall determine if there is probable cause to believe the person committed the offense.

1.      If probable cause has not been determined by a magistrate:

a.       A person arrested for a misdemeanor must be released on bond, in an amount not to exceed $5,000, not later than 24 hours after the person's arrest.

b.      A person arrested for a felony must be released on bond, in an amount not to exceed $10,000, not later than 48 hours after the person’s arrest.

c.       If requested by the state, the magistrate may postpone the release of the defendant for not more than 72 hours after the defendant's arrest, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

                            iv.            The magistrate shall set the amount of bail and any conditions of bond for the accused, if bail is allowed by law and has not been set by the court or magistrate issuing a warrant.

                              v.            The magistrate shall record the following:

1.      The date and time the accused was arrested and the date and time when he/she was brought before the magistrate.

2.      Whether the magistrate informed the accused of the right to request appointment of counsel and asked the accused whether he/she wants to request counsel.

3.      Whether the accused requested appointment of counsel

                            vi.            If the magistrate is not authorized to appoint counsel and if the accused requests appointment of counsel, the magistrate shall transmit or cause to be transmitted the magistrate form and any other forms requesting appointment of counsel to _________. (the appointing authority) The forms requesting appointment of counsel shall be transmitted without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel.

                          vii.            If the magistrate is authorized to appoint counsel, the magistrate shall make a determination of indigence and appoint counsel if the defendant is indigent within three working days unless the County has a U.S. Census population over 250,000, in which case counsel shall be appointed within one working day.

                        viii.            If a request for counsel was made at magistration, the appointing authority shall forward the magistrate form and any other forms requesting appointment of counsel to the appropriate clerk to be put into the case file.

                            ix.            If a request for counsel was not made at magistration, the magistrate will forward the magistrate form to the clerk to be put into the case file.

                              x.            For persons arrested on out-of-county warrants, the magistrate will ask the defendant if he/she would like to request appointed counsel. The magistrate will record the response, and if counsel is requested, the magistrate will provide the arrestee with the appropriate forms for requesting counsel. The magistrate will ensure assistance in completing the forms at the same time. The forms will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made.

Indigence Determination Standards
10/26/2015
 

II.  Determination of Indigence for Adults


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 125% 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.

2.      The resources available to friends or relatives of the accused 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 timelines 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 circumstancesthat 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
10/26/2015
 

III.   SMITH COUNTY SECOND AMENDED

STANDARDS RELATING TO THE PROVISION OF

COUNSEL TO INDIGENTS IN FELONY CASES

Adopted October 6, 2006

Purpose and Scope of Standards

The following standards are designed to provide for a systematic method of providing qualified counsel to indigents in FELONY criminal cases. These standards address principles of eligibility and certification for trial, writs of habeas corpus, revocations of probation and counsel on appeal.

Section I: General Principles of Eligibility.

The following standards shall be applied to attorney certification under any part of these standards:

1. Eligibility

The attorney shall be familiar with the practice and procedure of the criminal courts of Texas and shall be a member in good standing of the State Bar of Texas and shall be admitted pro hoc vice. Practice before a juvenile court shall be considered as experience in criminal litigation for purpose of these standards. Pro bono service of counsel shall also be considered as experience for purpose of these standards.

2. Evidentiary Matters

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.

3. Co-Counsel

If the Court appoints co-counsel for any offense, it shall be at the discretion of the Court as to the qualification of counsel except as provided herein.

4. Initial Training

Within one (1) year of an initial application and preliminary certification under these standards, the attorney shall complete a minimum of four (4) hours of Smith County Council of Judges approved training in the field of criminal law and specifically related to the practice before the criminal courts of Smith County. This course shall be offered in September of each year.

 

 

 

5. Continuing Training

To maintain annual certification, successful completion of a minimum of six (6) hours of training in State Bar of Texas and/or Smith County Council of Judges approved training in

criminal law, ethics, evidence or trial practice. This requirement is in addition to the requirements of Section I (4) above. This is an annual calendar year requirement with reporting each April by the presentation of a re-certification affidavit presented prior to April 1 of each year. A failure to present the affidavit shall cause an attorney to be subject to removal of those attorney for appointment.

Each applicant shall provide a copy of their annual CLE certification form provided by the State Bar of Texas with their application to be approved as appointed counsel. The attorney shall mark the number of hours of each CLE course to document the number of hours of CLE pertaining to criminal law as outlined in Title 1, Chapter 174 of the Texas Administrative Code.

Each felony contract attorney shall properly complete the Smith County Case Completed Auditing Form on a monthly basis and timely submit same to their respective District Court office.

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. 

Section II: Capital Offenses.

In order to serve as lead counsel in a capital offense where the State of Texas is seeking a death sentence, an attorney must meet the following:

1. exhibit proficiency and commitment to providing quality representation to defendants in death penalty cases;

have five (5) years experience in criminal litigation;

3. have tried to verdict as lead counsel a minimum of five felony cases and at least two of these cases shall be tried before a jury; or alternatively has served as lead or co-counsel in a minimum of one capital murder trial;

4. have trial experience in the use of challenges to health or forensic expert witnesses

and presenting mitigating evidence at the penalty phase of a death penalty trial; and

5. have participated in continuing legal education relating to death penalty criminal defense.

Section III: Capital offenses where death penalty is not sought by the State of Texas and 1st degree felonies and co-counsel for capital offenses where the State is seeking the death penalty. (This category also includes enhanced felonies which carry a first degree range of punishment.)

In order to be eligible for appointment in the above described offenses, an attorney must meet the following criteria:

1. have four (4) years experience in criminal litigation; and

2. have tried to verdict as lead counsel or co-counsel for the defense or the prosecution of at least three (3) trials of any grade of felony. At least two (2) of these trials must be jury trials.

 

Section IV: Second and Third Degree Felonies (This category includes enhanced State Jail Felonies.

In order to be eligible for appointment in the above described offenses, an attorney must meet the following criteria:

1. have at least two (2) years of experience in criminal litigation;

2. have tried to verdict as lead or co-counsel for the defense or the prosecution at least two (2) trials of any State Jail felonies or Class A/B misdemeanors. At least one (1) of these trials must be a jury trial.

Section V: State Jail Felony

In order to be eligible for appointment in the above described offenses, an attorney must meet the following criteria:

1. have a license to practice law in the State of Texas.

Section VI: Appellate Counsel.

In order to serve as appellate counsel for capital offenses, whether or not the death penalty has been assessed and in First Degree felonies as defined in Section III, an attorney shall:

1. have three (3) years of experience in criminal litigation; and

2. have filed a brief and/or argued two (2) cases before the Courts of Appeal of Texas, the Texas Supreme Court, the Texas Court of Criminal Appeals, Fifth Circuit Court of Appeals and/or United States Supreme Court.

In all other felonies, an attorney shall have at least one (1) year experience in appellate practice and procedure and filed a brief and/or argued a case before the Courts of Appeal for the State of Texas, the Texas Court of Criminal Appeals, the Texas Supreme Court, Fifth Circuit Court of Appeals and/or United States Supreme Court or shall have (2) years of general experience in criminal litigation.

Section VII: Writ Counsel.

In capital felonies where the death penalty has been assessed, appointed counsel for any writ of habeas corpus must possess the following qualifications:

1. The attorney must have three (3) years criminal litigation experience; and

2. The attorney must have filed a brief and/or argued before the Courts of Appeal of the State of Texas, the Texas Court of Criminal Appeals, the U.S. District Court, the Texas Supreme Court, the Fifth Circuit and/or the United States Supreme Court.

For all grades of offenses, the counsel shall be licensed to practice law in the State of Texas.

Section VIII: Revocation of Probation.

For trials of felony revocation of probation, an attorney shall have at least one (1) year of experience in criminal litigation.

For trials of State Jail Felonies revocation of probation, an attorney must be licensed to practice law in the State of Texas.

Section IX: Criminal Law Specialization.

An attorney who has received his or her specialization in criminal law is qualified to serve on any capital felony where the State is not seeking the death penalty and for all other grades of felony and misdemeanor offenses. The attorney who possesses criminal law specialization shall also be exempt from the CLE requirements set out in Section I.

Section X: Amendments.

The Criminal Courts Board may approve changes as necessary to these qualifications.

 

SIGNED and ENTERED this 6th day of October, 2006.

 

HONORABLE KERRY L. RUSSELL                                                 HONORABLE CYNTHIA STEVENS KENT

7TH DISTRICT COURT                                                                     114TH DISTRICT COURT

 

 HONORABLE JACK SKEEN, JR.                                                    HONORABLE CAROLE W. CLARK

241ST DISTRICT COURT                                                                 321ST DISTRICT COURT

Prompt Appointment of Counsel
10/26/2015

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

A.    Prompt Appointment of Counsel

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

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

                            iii.            If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within three working days of this county’s receipt of the request for counsel.

                            iv.            If a defendant is arrested in this county based on another county’s warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county’s custody.

                              v.            If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/ or from: Smith County Local Administrative District Judge. The defendant may submit these forms to: Smith County Local Administrative District Judge, 100 North Broadway, Tyler, Texas 75702

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

                            vi.            Appointment Authority

1.      If no case has been filed in the trial court, the appointing authority for misdemeanors is: Smith County Local Administrative County Court at Law Judge.

2.      If no case has been filed in the trial court, the appointing authority for felonies is: Smith County Local Administrative District Judge.

3.      If the case has been filed in the trial court, the appointing authority is:   The Trial Court where the case is filed.

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

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

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

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

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

                            iii.            The attorney representing the state may not:

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

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

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

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

C.     Waiver of the Right to Counsel

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

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

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

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

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

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Attorney Selection Process
11/1/2019

 

After seeking attorneys to represent indigents in felony cases, an insufficient number volunteered to be establish a rotational system. Therefore, an alternate plan of appointment is adopted.

This alternate plan does not apply to capital murder cases filed in the courts in which the State of Texas is seeking the death penalty. Those cases shall be assigned pursuant to a separately adopted list as approved by the Council of District Judges.

Each District Court shall designate three qualified attorneys who shall work on a month to month basis and who shall be paid $7,500 per month per attorney for representation of indigents before the Court to which they are assigned. The attorneys designated under this plan shall represent indigents in matters including but not limited to the following: probable cause hearings, bond hearings, arraignment, writs of habeas corpus, docket call, , pretrial, trial and appeal, if any.

Smith County shall also designate  two qualified attorneys who shall work on a month to month basis to handle all indigent  appeals and writs and as otherwise directed by Felony District Court.

Fee and Expense Payment Process
11/1/2019

FEE AND EXPENSE PAYMENT PROCESS FOR ADULTS


A. Smith County follows a "Contract Attorney" court appointed attorney procedure for defense of indigent defendants at the trial court level and for purposes of appeal. Occasionally, because of conflicts, the trial court is required to appoint a non-contract attorney. In that event, any said Court appointed counsel shall be compensated for all reasonable and appropriate services rendered in representing the accused. Compensation shall be reasonable for time and effort expended and will be in accordance with a fee schedule adopted and approved by a majority of the judges hearing criminal cases in the county.

B. Payment Process: No payment of attorney’s fees will be made other than in accordance with the rules set forth below.

i. An appointed attorney shall fill out and submit a fee voucher to the court for services rendered.

ii. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.

1. If a judge disapproves a request for compensation, the judge shall make written findings, stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.

2. An attorney whose request for payment is disapproved or is not otherwise acted on by the 60th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of this administrative judicial region.

C. Payment of Expenses:

i. Court appointed counsel will be reimbursed for reasonable and necessary expenses incurred, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior approval shall be paid according to the procedures set forth below; (and as stated under the Miscellaneous section entitled "Appointment of Investigators and Experts for Indigent Defense"). Whenever possible prior court approval should be obtained before expenses are incurred.

ii. Procedure With Prior Court Approval:

1. 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 the below, as applicable:

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

b. 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

c. An itemized list of anticipated expenses for each investigation and/or each expert.

2. 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:

a. State the reasons for the denial in writing;

b. Attach the denial to the confidential request; and

c. Submit the request and denial as a sealed exhibit to the record.

iii. 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.


SMITH COUNTY COURT APPOINTED FEE SCHEDULE

ATTORNEYS

CONTRACT ATTORNEY RATE: $7,500.00/MONTH

APPOINTED HOURLY RATE

For all felony activities with the

exception of capital cases:     In Court             $60.00/hour

                                             Out of Court      $50.00/hour

Capital Cases

                             1st Chair                                         2nd Chair

In Court               $150.00/hour                                  $125.00/hour

Out of Court          $125.00/hour                                  $100.00/hour

FLAT FEES

State Jail Felony Guilty Plea            $250.00

Felony Guilty Plea            $350.00

Dismissal of Case            $300.00

Multiple Case Disposition      $200.00

Indictment Quashed        $200.00 

NON-JURY TRIAL - State Jail Felony      $500.00

NON-JURY TRIAL - Felony                   $750.00

JURY TRIAL                 $1,000.00

APPEAL          $1,000.00

Revocations       $300.00 

INVESTIGATORS AND EXPERTS

                                     Non-Capital                           Capital

Expenditure Cap*             $300 max                            Pursuant to TxCCP Art. 26.05 & 26.052


* Attorneys must seek appointment of investigators and/or experts. While the courts set the caps at this level for initial expenditures, the courts may increase the allowable amount upon further justification.


DISTRICT COURTS OF SMITH COUNTY, TEXAS

STANDARD ORDER FOR COMPENSATION OF ATTORNEYS

APPOINTED TO REPRESENT INDIGENT DEFENDANTS IN

CAPITAL MURDER DEATH PENALTY CASES

On the 2nd day of August, 2017, the below named District Court judges with criminal jurisdiction, after a duly called and conducted meeting and discussion, did unanimously adopt this schedule of fees concerning the compensation of court-appointed counsel for indigent defendants and related expenses made pursuant to article 26.05, Texas Code of Criminal Procedure.

IT IS THEREFORE ORDERED that compensation of court-appointed counsel and related expenses, made pursuant to a motion in the format prescribed by the appointing court, shall be as set out below on a case-by-case basis as determined by the judge. Due to the wide variety of circumstances which may be encountered in cases, total compensation for all pre-trial, trial, post-trial and appellate court appointed counsel services shall be determined by the trial judge upon the circumstances and complexity of each case. The fees set out below may be adjusted upward or downward as reasonable determined by the judge.

I. CAPITAL CASE COMPENSATION

In a capital case in which the State seeks the death penalty, the rates for the lead (first chair) attorney's services shall be paid at the rate of ONE HUNDRED TWENTY-FIVE DOLLARS AND NO CENTS ($125.00) per hour for out of court time and ONE HUNDRED FIFTY DOLLARS AND  NO CENTS ($150.00) per hour for in court time, subject to any limitations set out in this Standing

Order. Any co-counsel appointed by the court shall be paid at the rate of ONE HUNDRED DOLLARS AND NO CENTS ($100.00) per hour for out of court time and ONE HUNDRED TWENTY-FIVE DOLLARS AND NO CENTS ($125.00) per hour for in court time, subject to any limitations set out in this Standing Order. In all capital cases in which the state seeks the death penalty, the maximum amount of attorney fees to be paid to lead counsel shall not exceed $100,000. The maximum compensation paid to any appointed co-counsel shall not exceed $75,000.

In capital cases in which the state obtained the death penalty, appointed appellate counsel shall be paid for reasonable services rendered at the rate of ONE HUNDRED DOLLARS AND NO CENTS ($100.00) per hour not to exceed $25,000 for the appeal of a single case.

II. REIMBURSEMENT FOR REASONABLE EXPENSES FOR PURPOSES OF INVESTIGATION AND EXPERT TESTIMONY

In capital felony criminal cases, appointed counsel will be reimbursed for reasonably necessary and reasonably incurred expenses as provided in article 26.05 and 26.052. Appointed counsel may also request advance payment of expenses to investigate possible defenses in accordance with the procedures provided in article 26.052.

III. REQUEST FOR PAYMENT OF ATTORNEY'S FEES AND EXPENSES

Each attorney shall prepare a detailed statement of the nature of the services performed, the date of such performance, and the actual time spent on each such date and service, and shall submit said statement with a verified affidavit to the trial judge. All requests for payment shall be accompanied by a proposed order identifying the attorney to be paid and stating that all payments are to be made from the general fund of Smith County, Texas. The amount of payment shall be left blank.

If the trial judge disapproves the requested amount, the court and counsel shall follow the procedures set forth in article 26.05.

IV. AMENDMENTS

The judges of the Smith County District Courts may approve changes as necessary to this fee schedule.

THIS ORDER IS SIGNED AND EFFECTIVE ON THIS THE 2ND DAY OF AUGUST, 2017, AND SAID ORDER SUPERCEDES ANY AND ALL PRIOR STANDING ORDERS FOR ATTORNEY'S FEES AND EXPENSES FOR CAPITAL DEATH PENALTY CASES.


REIMBURSEMENT FOR REASONABLE EXPENSES FOR PURPOSES

OF INVESTIGATION AND EXPERT TESTIMONY


Court appointed counsel will be reimbursed for reasonable expenses that are incurred provided prior court approval has been granted upon motion and application and a hearing held on said motion. Reasonable expenses upon prior court approval and after motion and application may include expenses incurred or expected to be incurred for investigation and expert testimony, and will be in addition to the total compensation referred to above. Said fees shall not exceed TWENTY FIVE HUNDRED DOLLARS ($2,500.00) in total investigator fees and TWENTY FIVE HUNDRED DOLLARS ($2,500.00) in total expert fees unless the court finds exceptional circumstances or that good cause exists for exceeding said total amount.

 

 

CRIMINAL CASE/CIVIL CONTEMPT (WITH POSSIBLE CONFINEMENT)      JUVENILE CASE

 

                                          CAUSE NO. _________________________

 

 

THE STATE OF TEXAS                                 '                                                     IN THE COUNTY COURT

 

vs.                                                                         '                                                     AT LAW ________ OF

 

________________________________             '                                                     SMITH COUNTY, TEXAS

 

 

 

                       MOTION TO PAY COURT APPOINTED ATTORNEY FEES

 

I, _____________________________________, a duly licensed attorney in the State of Texas as an officer of this court do hereby represent and  affirm to the court that as Court Appointed Counsel for the indigent defendant in the above numbered and entitled case, I have rendered the following reasonable and necessary services and request payment of the amounts so indicated: FEE SCHEDULE: OUT OF COURT TIME $50.00 PER HOUR, IN COURT TIME $60.00 PER HOUR, GUILTY PLEA $250.00, NON JURY TRIAL $350.00, JURY TRIAL $600.00 (Fee is subject to the discretion of the Court, based on quality, necessity of service, and unique fact situations).

 

DATE:                                                                                                SERVICE:                              TIME:                         OUT OF COURT/IN COURT

 

 

 

 

 

 

TOTAL TIME IN COURT:                                                                                                                           ________________________

 

TOTAL TIME OUT OF COURT:                                                                                                     ________________________

 

TOTAL AMOUNT REQUESTED:                                                                                                   ________________________

 

(If additional space is needed use back of motion).                                                   Respectfully,

 

State Bar Number:                                                                              ______________________                            ________________________

Address:________________

Phone Number:                                                                                   ______________________                            ________________________

 

           


                              ORDER TO PAY COURT APPOINTED ATTORNEY

 

 

The court finds that the above reasonable and necessary services were performed by counsel in this case and said above motion should be granted. It is therefore ORDERED that the said Court Appointed Counsel listed above shall be paid, from the General Fund of Smith County, Texas the following amount:

 

$__________________________

 

Signed on this the_________________ day of _____________________________, 19____.       

 

 

_________________________________

Judge Presiding

 

Sent to Auditor by Court:


 

                                                      MAGISTRATE CASE NO.

STATE OF TEXAS                                                                                                                         SITTING AS MAGISTRATE

VS.                                                                                                                                                                              FOR

_________________________________                                                      SMITH COUNTY, TEXAS

 

 

DEFENDANT'S ACKNOWLEDGMENT OF ALLEGED OFFENSES, BONDS AND RIGHTS

 

I ant the individual whose name appears above. I have been brought before a Magistrate after my arrest on the following changes:

 

 

OFFENSE CHARGED                                                                                                                     AGENCY & WARRANT NO./ON SIGHT                        BOND 

A.       

B.

C.

D.

 

FURTHER, in regard to the offense(s) listed above, I acknowledge and understand as follows:

!     I have the right to remain silent and I do not have to make any statements to the police or attorneys representing the state. Any statements I make may be used against me as evidence in Court at a later time;

!     If I am too poor to afford a lawyer, I have the right to request that a lawyer be appointed to represent me at the state's expense (except in Class Misdemeanor cases);

!     I have the right to have a lawyer present during an), questioning by peace officers or attorneys representing the State of Texas and I understand that I may stop the interview at any time;

!     If I am charged with a felony level offense, I also have the right to have an examining trial if heard prior to an indictment having been presented against me by a Grand Jury;

!     If f I am not a citizen of the United States, a plea of guilty to the charge(s) at any time could affect my right to remain in this country.

!     I have been arrested and charged with a(n) offense(s), but that does not mean that I ant guilty; I am innocent until proven otherwise, and I have the right to a trial before a judge or a jury.

 

                       Request of Appointment of Attorney and Statement of lndigencv

Further, the Magistrate before whom I now appear has explained that I have a right to an attorney and if I am too poor to afford an attorney, the county will appoint and pay for in), attorney. The Magistrate has asked me if I am indigent and if I am in need of court appointed representation. Based on my current financial status and abilities:

_____  I am NOT INDIGENT. I can afford to hire legal representation and do not request court appointed counsel.

 

_____  I am INDIGENT (unable to pay for my own attorney). I herein request that an attorney be appointed for me. I have been given a Pauper's Oath Application and the magistrate has offered assistance in its preparation.

SIGNED on the ______ day of ____________________________, 20____.        

 

Witness:____________________________  Defendant's Signature: ________________________


     MAGISTRATE'S VERIFICATION OF WARNINGS AND DETERMINATION OF     PROBABLE CAUSE

In my capacity as A4ogistralejbi-Sn0h County, I certify that the following procedural safeguards for the Defendant have been observed as required by law:

 

!   I have personally advised the Defendant as to his or her rights including the right to retain counsel, the right to court appointed counsel if the defendant cannot afford legal counsel, the right to remain silent and the right to terminate any interview with law enforcement agencies or representatives of the state, the right to an examining trial in felony cases where a grand jury indictment has not been returned first, and the right to a trial before a Judge or Jury.

!   I have personally asked the Defendant if they are indigent and would request that an attorney be appointed to represent them. If the Defendant has indicated that they would like to request indigent appointment of counsel, I have provided to them appropriate forms and assistance for their request. ]'his form, once completed has been forwarded to the appropriate office for processing and, if granted, appointment of counsel.

!   l have reviewed the charges listed above and find:

 

PROBABLE CAUSE EXISTS as to each of the charges supported by ? sufficient factual detail set forth in a sworn affidavit of probable cause, or ? supported by documentation as to the existence of (a) confirmed warraru(s) of arrest. There IS therefore sufficient basis for further detention of the defendant, absent posting of bored or bail as set above; OR

?   Based upon a lack of factual detail set forth in an affidavit of probable cause or the existence of confirmed warrants, NO PROBABLE CAUSE EXISTS for further detention, and the defendant should be RELEASED IMMEDIATELY.

?         Paupers Oath Completed & Reviewed           ? Defendant Determined to be Indigent Attorney Appointed

 

Signed on the __________ day of ________________________, 20___ at __________ .


                                                 CERTIFICATE OF MAGISTRATE

 

COUNTY OF SMITH

STATE OF TEXAS                                                                                                                CAUSE NO (S)

 

 

I,_____________________________________,  Judge of the__________________________Court

of Smith County. Texas do hereby certify that ___________________________________________,

D.O.B._______________ charged with the offense(s) of_________________________________

Warrant # ___________________________________ /On Sight _______________________

appeared before me at ________ M., on the _________ day of______________,  20___, at

___________________________________, in Smith County, Texas-,

 

 

at that time I warned said _______________________________________ of the accusation against him and of the affidavit, if any, filed in support of such accusation,: that he had the right to retain counsel-, of his right to remain silent; of his right to have an attorney present during any interview with peace officers or attorneys representing the State of during any lineup or confrontation by witnesses; of his right to terminate the interview at any time; of his right to request the appointment of counsel if he is indigent and cannot afford counsel and his right to an examining trial. I also informed the above named individual that he is not required to make a statement and that any statement by him may be used against him. Reasonable assistance was provided to the accused in completing the necessary forms. Information was provided with / without the assistance of an interpreter. Issues of mental competency of the accused may  exist / do not exist. The accused was asked if he wished to request appointment of counsel. The accused indicated that he did / did not wish to request appointed counsel. An application form was / was not provided.

 

In witness whereof I have subscribed my name on the_____ day of ___________________, 20___.

 

 

_________________________________

JUDGE/MAGISTRATE

 

Check all those that apply:                                                                                                                                                     Yes                              No

1. Probable cause determined

2.             Paupers Oath Completed & Reviewed

3. Defendant Determined to be Indigent


4. Attorney Appointed

White - Original          Canary - Judge/Magistrate      Pink - Court Coordinator, Presiding Judge


Miscellaneous
12/1/2009

         

 APPOINTMENT OF INVESTIGATORS AND

                                     EXPERTS FOR INDIGENT DEFENSE

 

 

Appointment and reimbursement for reasonable and necessary investigation, mental health and other experts shall be as provided by law and only upon written motion and prior approval of the trial judge for such appointment and anticipated reimbursement.

 

 

 

 

Smith County Supplemental Plan for Appointment of Counsel

 

Two-thirds of the judges hearing  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:

 

I

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

 

 

                                            

WAIVERS

 

The Criminal Courts Board retains 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
Smith District Court Affidavit of Indigence.pdf (11/1/2019 9:16:04 AM) view
Smith District Court Attorney Application for Appointment.wpd (12/1/2009 1:07:06 PM) view
Smith District Court Attorney Fee Schedule.pdf (5/23/2012 5:54:09 PM) view
Smith District Court Attorney Fee Voucher.doc (11/3/2010 9:09:56 AM) view
Smith District Court Contracts for Indigent Defense Services.pdf (10/29/2019 10:44:46 AM) view