Zapata Juvenile Board Plan
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JUVENILE INDIGENT DEFENSE PLAN
Prompt Detention Hearings
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
DETERMINATION OF INDIGENCY
A. The income of the juvenile and the child’s parent or other person responsible for the support of the child shall be used to determine whether the juvenile qualifies for a court appointed attorney.
B. A juvenile or a juvenile’s parent or other person responsible for the support of the juvenile shall complete a sworn questionnaire and provide supporting documentation if ordered to do so. If a finding of indigency is made, the court shall appoint counsel.
C. An indigent is any person with a household income at or below 125% of the latest poverty guidelines as established and revised annually by the United States Department of Health and Human Services, and whose liquid assets do not exceed $15,000.00
D. A juvenile whose household income exceeds 125% of the latest poverty guidelines may still qualify for a court-appointed attorney if the court or its designee determines special circumstances exist, and may consider unusual, excessive, or extraordinary medical expenses, the age or physical infirmity of household members, or other expenses. The court may also consider the complexity of the case, the estimated cost of presenting a legal defense, the fees charged by lawyers in the community for providing defense services in similar cases and any efforts the juvenile or the juvenile’s family has made to retain an attorney.
E. Definitions - Terms used to determine eligibility for an indigent’s defense shall have the following meanings:
Household income: The juvenile’s or the juvenile’s parents or other person responsible for support of the child household income shall be defined as the juvenile’s income, the juvenile’s parents’ income and the income of any other person responsible for the support of the child and the income of all other persons related by birth, marriage, or adoption who reside with the juvenile.
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.
Liquid assets: Liquid assets shall include but are not limited to cash, savings, and checking accounts, stocks, bonds, certificates of deposit, equity in real and personal property as well as any interest in retirement accounts.
F. The guidelines established herein for the appointment herein for the appointment of counsel also apply to the reimbursement of expenses incurred for the purposes of investigation or expert testimony, as approved by the court.
G. 2009/2010 HHS Poverty Guidelines Chart: (April 2010)
Size of Family Unit 125% of Poverty Level
For each additional person, add $4,675.00
H. A juvenile who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings unless a material change in financial circumstances occurs. The juvenile, juvenile’s attorney or state may move for reconsideration of an indigency determination.
Minimum Attorney Qualifications
MINIMUM ATTORNEY QUALIFICATIONS
A. Attorneys who are interested in qualifying as court-appointed counsel for children under Title 3 of the Family Code must meet certain qualifications. The qualifications necessary to represent children under Title 3 of the Family Code are set out below. The Task Force on Indigent Defense may impose additional qualifications, which must be met by attorneys, in order to remain on the list.
No later than October 15
of each year, each attorney must submit a written report on the form prescribed
by the Texas Indigent Defense Commission describing the percentage of the
attorney's practice time that was dedicated to work based on appointments
accepted in the County or District for adult criminal cases and 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 Texas Indigent Defense
Commission’s online portal.
B. The Juvenile Board shall establish attorney appointment lists for the following categories of offenses. Each attorney must be approved by the majority of the Juvenile Board for inclusion on the appointment list. Attorneys may apply for and be placed on multiple lists.
C. All attorneys are qualified to take CINS and Delinquent Conduct Petitions. An attorney must complete the application form. The form must include a statement declaring that the attorney has demonstrated that he/she meets all qualifications for representation of juveniles at each requested level of appointment.
D. To be eligible for an appointment list, an attorney must meet the following minimum requirements:
1. All attorneys on the appointment list must have on file with the Juvenile Court a completed and correct application for the juvenile public appointment list approved by the Zapata County Juvenile Board and shall promptly notify the Juvenile Court of any changes to the information contained in the application for the juvenile public appointment list;
2. An attorney must be a licensed practicing attorney and a member in good standing of the State Bar of Texas;
3. An attorney must reside in Zapata/Webb/Starr County or maintain his/her principal office in Zapata /Webb/Starr County (A post office address alone will not satisfy this requirement.);
4. An attorney shall be knowledgeable in juvenile law and be aware of collateral consequences of a juvenile adjudication, and disposition (including, but not limited to, issues involving T.Y.C. commitment criteria, use of juvenile adjudications in adult proceedings, license suspension, sex offender registration, school removals and expulsions, sealing of records, etc).
5. 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 court administration office 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 with-in a one year period immediately preceding an attorney’s initial reporting period may be used to meet the educational requirements for the initial year. Continuing legal education activity completed during any reporting period in excess of the minimum of 6 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only;
The following provisions are also included in the rules to add flexibility so that attorneys may meet the requirements without experiencing an undue burden:
Ø All of the required juvenile law hours in this six hour requirement may be earned through any method authorized by the State Bar, including self-study. Attendance at a State Bar accredited CLE training is NOT required.
Ø Carryover provision allows an attorney to earn 12 hours at one
and carry forward 6 hours to the next year’s reporting period.
Ø Emergency appointment allowed when no attorney meeting the CLE
requirements is available by the time an attorney must be appointed in a
If board Certified in Criminal Law or Juvenile Law, the attorney is automatically qualified to receive court appointments in every category of juvenile offense described below.
6. A copy of the attorney’s annual State Bar of Texas Continuing Legal Education annual reporting form shall be filed within thirty days of receipt by the attorney of the form from the State Bar of Texas.
7. An attorney must have a secretary, receptionist, answering service, or a regularly monitored answering machine and maintain an office capable of receiving email, fax, and telephone calls;
8. An attorney must have the ability to produce typed motions and orders;
9. An attorney shall notify the Juvenile Board promptly, in writing, of any matter that would disqualify the attorney by law, regulation, rule, or under these guidelines from receiving appointments to represent indigent defendants.
PROCEDURES FOR REMOVAL OF ATTORNEYS FROM THE APPOINTMENT LIST
A. The Juvenile Board may remove an attorney from the appointment list if:
1. the attorney requests removal from the appointment list, or
2. the attorney does not have the qualifications required for appointment, or
3. the attorney fails to perform the duties required by the Texas Fair Defense Act, or
4. for any of the grounds of removal from the juvenile appointment list included in this plan, or
5. for good cause.
B. An attorney may be temporarily removed from the appointment list by request of the attorney to the juvenile judge provided that the attorney specifically sets out the dates the attorney will not be available to receive appointments.
C. Grounds for removal from the Juvenile Public Appointment List
1. An attorney shall be removed from the juvenile public appointment list and from any case to which the attorney has been appointed for the following:
a. conviction or deferred adjudication for any felony , or
b. conviction or deferred adjudication for any crime of moral turpitude, or
c. being under indictment or being formally charged with a felony or crime of moral turpitude, or
d. intentional misrepresentation by the attorney on the application for public appointment.
2. An attorney may be removed from the juvenile public appointment list and from any case to which the attorney has been appointed for the following:
a. failing to perform the attorney’s duties owed to the juvenile, or
b. a finding by a court that the attorney provided ineffective assistance of counsel, or
c. if after a hearing it is shown that the attorney submitted a claim for services not performed by the attorney, or
d. if after the hearing it is shown that the attorney submitted a claim for services not performed by the attorney, or
e. For good cause at the discretion of the juvenile board.
3. Removals from the list shall be for a minimum of one year. Removals from the list may be probated. For removals or probated removals, the Juvenile Board may require the completion of rehabilitative measures as a condition of the probation or re-application. For good cause, the Juvenile Board may remove an attorney from the list for a period longer that one year or permanently.
4. An attorney who was removed from the juvenile appointment list for the reasons stated in Item C, 1, a-c above may be immediately reinstated upon providing proof that the charges were dismissed or that the attorney was acquitted.
5. An attorney who was removed from the juvenile misdemeanor public appointment list for any reason may apply for reinstatement to the list upon the expiration of one year from the date the attorney was removed from the list unless the Juvenile Board removed the attorney for a longer period of time.
Prompt Appointment of Counsel
PROMPT APPOINTMENT OF COUNSEL
A. Appointment of Counsel for Children in Detention
1. 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. 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.
2. 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.
3. If there is no parent or other responsible adult present, the court must appoint counsel or a guardian ad litem for the child.
4. 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.
5. Upon appointment, the court administrator shall notify the appointed attorney by fax, e-mail, or personal contact of the appointment and the scheduled hearing time and date.
6. The appointed attorney shall make every reasonable effort to contact a child in detention by the end of the first working day after receiving the notice of appointment or to inform the court that the appointment cannot be accepted. Contacting the child in detention may be by personal visit (including contact during a detention hearing), by phone, or by video teleconference. Contacting the court may be by fax, email, phone or personal visit. A court-appointed attorney shall contact the child, in one of the ways mentioned above, no less than once every ten working days while the child remains in detention.
7. 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.
8. Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.
B. Appointment of Counsel for Children not Detained at Intake
1. 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.
2. If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:
a. The date a petition for adjudication or discretionary transfer hearing has been served on the child; or
b. A motion to modify disposition seeking commitment to TYC or placing in secure correctional facility has been filed.
3. If the family does not qualify for appointed counsel or if the parent or guardian is not available, and the family fails to provide an attorney, the juvenile court may appoint an attorney in any case in which it deems representation necessary to protect the interests of the child.
4. 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.
C. Duties of Appointed Counsel - Appointed Counsel shall:
1. Notify the court within 72 hours of the receipt of appointment;
2. Make every reasonable effort to:
a. Contact the child by the end of the first day after the date on which the attorney is appointed; and
b. Interview the child as soon as practicable after the attorney is appointed;
3. Represent the child until:
a. The case is terminated;
b. The family retains an attorney;
c. The attorney is relieved of his duties by the court or replaced by other counsel.
4. Investigate, either by self or through an investigator, the facts of the case and be prepared to present any factual defense that may be reasonably and arguably available to the child;
5. Brief the law of the case and be prepared to present any legal defense that may be reasonably and arguably available to the child;
6. Be prepared to negotiate with the prosecutor for the most favorable solution of the case as can be achieved through a plea agreement;
7. Be prepared to try the case to conclusion either with or without a jury;
8. 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;
9. Maintain reasonable communication and keep the child informed of the status of the case; and
10. Advise the child on all matters involving the case and such collateral matters as may reasonably be required to aid the client is making appropriate decisions about the case.
11. Perform the attorney’s duty owed to the child in accordance with these procedures, the requirements of the Code of Criminal Procedure and the Family Code, and applicable rules of ethics.
12. 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.
Attorney Selection Process
ATTORNEY SELECTION PROCESS
A. The Zapata County Juvenile Court will identify which of the appointment lists, discussed in the attorney qualifications section. An attorney may receive an appointment for the highest level of offense for which he or she is qualified and for each lower level of offense.
Appropriate attorney appointment is 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:
1. The child requesting counsel does not understand English, in which case the judge will appoint the lawyer whose name appears next in order and speaks the clients’ language, if one is available;
2. 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;
3. An initial detention hearing is scheduled and the first attorney on the list is unavailable; or
4. 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. Appointments are to be allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory. New attorneys or attorneys being reinstated will be added to the end of the list as it exists at the time they are added.
C. Judicial Removal from Case:
1. The judge presiding over a case involving a child may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, the following:
a. Counsel’s failure to contact the juvenile on the first working day after the date of appointment or fails to interview the juvenile as soon as practicable.
b. Counsel’s failure to appear at a court hearing;
c. Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
d. 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;
e. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
f. The child requests an attorney, other than trial counsel, for appeal; or
g. The child shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the child.
2. 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.
D. Removal from Appointment List - The Juvenile Board will monitor attorney performance on a continuing basis to assure the competency of attorneys on the list. An attorney may be removed or suspended, as appropriate, from one or more appointment lists by a majority vote of the judges.
E. Reinstatement to Appointment Lists
1. 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.
2. 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 application process.
Fee and Expense Payment Process
FEE AND EXPENSE PAYMENT PROCESS
A. 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 the Juvenile Board.
B. Payment Process - No payment of attorney’s fees will be made other than in accordance with the rules set forth below.
1. An appointed attorney shall fill out and submit a fee voucher to the court for services rendered.
2. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.
a. 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.
b. 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:
1. 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. Whenever possible prior court approval should be obtained before expenses are incurred.
2. Procedure With Prior Court Approval:
a. 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:
i. The type of investigation to be conducted or the type of expert to be retained;
ii. 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
iii. An itemized list of anticipated expenses for each investigation and/or each expert.
b. 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:
i. State the reasons for the denial in writing;
ii. Attach the denial to the confidential request; and
iii. Submit the request and denial as a sealed exhibit to the record.
c. The commissioners’ court shall pay the appointed counsel the amount approved by the presiding judge of the administrative judicial region that is in accordance with the fee schedule not later than 45 days after the date of an application for payment.
d. Any attorney who fails to submit a request for payment after 60 days from the date that the case has been resolved shall not be able to file any late requests for payments, unless approved by the juvenile court judge after good cause has been shown.
3. Procedure Without Prior Court Approval:
a. 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.
D. Attorney Fee Schedule -see Forms section
E. Attorney Fee Voucher – see Forms section
Zapata Juvenile Board Affidavit of Indigence.doc (10/25/2010 4:47:55 PM) view
Zapata Juvenile Board Attorney Application for Appointment.doc (10/25/2010 4:48:31 PM) view
Zapata Juvenile Board Attorney Fee Schedule.docx (10/25/2010 4:49:10 PM) view
Zapata Juvenile Board Attorney Fee Voucher.docx (10/25/2010 4:49:43 PM) view