Callahan, Coleman and Taylor Juvenile Board Plan
We the Taylor County Juvenile Board, set these countywide procedures, rules, and orders for the timely and fair appointment of counsel for indigent accused juveniles in Taylor County. This document is the Taylor County Plan to conform with the requirements of the Fair Defense Act of 2001.
Prompt Detention Hearings
A. A child taken into custody must either be brought to a juvenile processing office without unnecessary delay where they may not be detained for longer than six hours pursuant to §52.025, Family Code, or another disposition authorized by §52.02, Family Code, including referral to the office designated by the juvenile board as intake for the juvenile court. The intake officer shall process the child according the requirement of §53.01, Family Code, and shall also inform the child and the child’s parents of the right to appointed counsel if they are indigent and provide a form for the purpose of determining eligibility for appointment of counsel. If the child is not released by intake, then a Detention Hearing shall be held not later than the second working day after the child is taken into custody unless the child is detained on a Friday, Saturday or listed holiday in which case the detention hearing shall be held on the first working day after the child is taken into custody.
B. Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct.
C. The detention hearing may be conducted without the presence of the child’s parent(s) or other responsible adult(s), however, in these cases the court must immediately appoint counsel or a guardian ad litem to represent the child.
D. The court shall provide the attorney for the child access to all written matter to be considered by the Court in making the detention decision.
Indigence Determination Standards
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
ii. “Net household income” in the case of a child is the income of the child’s parents or other person determined responsible for the support of the child. Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); net self-employment income (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the person determined responsible for the support of the child has no income or lesser income.
iii. “Non-exempt assets and property” means cash on hand, stocks and bonds, and accounts at financial institutions.
iv. “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.
v. “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. 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.
ii. A child is also considered indigent if the child’s parent(s) or other person(s) determined responsible for the support of the child meets any one of the following criteria AND meets the asset test set out in subsection iii below:
1. The net household income of the child’s parent(s) or other person(s) determined responsible for the support of the child does not exceed 125 % of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register; and if
2. The value of non-exempt assets and property owned by the person determined responsible for the support of the child does not exceed the greatest of the following:
b.. $5,000 in the case in which the household of the person determined responsible for the support of the child includes a person who is 60 years or older, disabled, or institutionalized; or
c.. Double the estimated cost of obtaining competent private representation for the offense with which the child is charged.
iii. The child who does not meet any of the standards above shall nevertheless be considered indigent if the child’s parent(s) or other person(s) responsible for the child is unable to retain private counsel without substantial hardship. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:
1. the nature of the charge(s);
2. anticipated complexity of the defense;
3. the estimated cost of obtaining competent private legal representation for the matter(s) charged;
4. the amount needed for the support of the child, the child’s parent(s)/person(s) responsible, and other dependents of the child’s parent(s)/person(s) responsible;
iv . The resources available to friends or relatives of the child, other than the child’s parent(s) or other person(s) deemed responsible for the child, may not be considered in determining whether the child is indigent. Only the child's parent(s) or other person(s) responsible for the child and the child’s financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
C. Indigence Proceedings:
i. A request by the appointing authority for additional information, documentation,
and/or verification cannot delay appointment of counsel beyond the timelines as
established by law and these rules.
ii. A child determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the child’s financial circumstances occurs.
1. A child’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court. The child’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:
a. Evidence of a material change in the child’s parent(s)/person(s) responsible and the child’s financial circumstances; or
b. Additional information regarding the child’s parent(s)/person(s) responsible and the child’s financial circumstances that shows that they do not meet any of the standards for indigence contained in these rules.
2. If a child previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.
iii.. If the court determines that a child’s parent(s) or other person(s) responsible for the child has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the child’s parent(s) or other person(s) responsible for the child to pay during the pendency of the charges or, if found to have engaged in delinquent conduct or CINS, as court costs the amount that it finds the child’s parent(s) or other person(s) responsible for the child is able to pay.
Minimum Attorney Qualifications
A. The Juvenile Board shall establish attorney appointment lists for the following categories of offenses. Attorneys may apply for and be placed on multiple lists. To be eligible for an appointment list, an attorney must meet the following minimum requirements:
i. General Requirements:
1. All attorneys on the appointment list must ensure all information on their application is correct;
2. An attorney must be a licensed practicing attorney and a member in good standing of the State Bar of Texas;
3. 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.
4. An attorney shall complete a minimum of 8 hours of CLE in the area of juvenile or criminal law and procedure each year. All attorneys on the appointment list must file a certificate with the indigent defense coordinator each year attesting to completion of the required CLE or submit documentation showing that the attorney is certified as a specialist in juvenile or ciminal 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 educational requirements for the initial year. Continuing legal education activity completed during any reporting period in excess of the minimum of 8 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only.
5. Must be knowledgeable in juvenile law and be aware of collateral consequences of a juvenile adjudication and disposition;
6. 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 year;
7. An attorney must 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.
ii. CINS Charges or Delinquent Conduct, for which, Commitment to TYC Is Not an Authorized Disposition:
1. Meet the General Requirements;
2. Exhibited proficiency and commitment to providing quality representation to juvenile respondents;
3. Exhibited professionalism and reliability when providing representation to juvenile respondents;
4. Have met the requirements for inclusion on the Misdemeanor List of the Taylor County Indigent Defense Plan;
5. Have attended the two hour orientation course with the Presiding Juvenile Judge.
iii. Delinquent Conduct, and Commitment to TYC Without a Determinate Sentence Is an Authorized Disposition; Determinate Sentence Proceedings have been Initiated; or Proceedings for Discretionary Transfer to Criminal Court Have Been Initiated:
1. Meet General Requirements;
2. Exhibited proficiency and commitment to poviding quality represention to juvenile respondents;
3. Exhibited professionalism and reliability when providing representation to juvenile respondents;
4. Have attended the two hour orientation course with the Presiding Juvenile Judge;
5. Have met the requirements for inclusion on the First Degree Felony List of the Taylor County Indigent Defense Plan.
B. Approval for Appointment Lists - An attorney must be approved by a majority of the Juvenile Board for each appointment list for which the attorney applies. At least annually, the Taylor County Juvenile Board shall evaluate new applicants for each Juvenile Appointment List and those attorneys already on the lists, and will approve those attorneys who meet the qualifications for inclusion on the lists.
C. Procedures for Removal from Court Appointment Lists: 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.
D. Grounds for Removal: An attorney may be removed from the appointment list if the attorney:
1. has twice or more failed to contact or interview clients in a timely manner as required by law or this Plan;
2. has submitted a claim for legal services not performed ;
3. fails to maintain compliance with each of the appointment list guidelines;
4. has been found by a court to have provided ineffective assistance of counsel;
5. has violated a rule of professional responsibility;
6. has been convicted of or received a deferred adjudication for any an offense, other than an offense punishable by a fine only;
7. is under indictment or being formally charged with an offense, other than an offense punishable by a fine only; or
8. has intentionally misrepresented statements on the application for the appointment list
9. An attorney may be removed from the lists for any other good cause.
E. Referral: If a member of the Juvenile Board believes that an attorney has violated any of the provisions listed above, the Juvenile Board member may refer the attorney to the Board for removal from the appointment list. The referral must be in writing and shall clearly state the grounds that form the basis of the referral. No disciplinary action with respect the the attorney being retained or removed from the appointment list may be made without such a referral.
F. Notiification/Hearing: Upon receiving a referral, the Juvenile Board shall notify the attorney in writing of the referral and inform the attorney of the grounds that form the basis of the referral. The notice shall also inform the attorney of the time and place the Juvenile Board will meet to discuss the referral and give the attorney an opportunity to respond to the referral in writing or in person or both.
G. Board Action: After the Board meets, and gives the attorney an opportunity to be heard, the judges shall determine whether the attorney should:
1. remain on the appointment list at the same level;
2. be moved to an appointment list involving less serious offenses; or,
3. be removed from the Juvenile Appointment lists altogether.
4. be required to take rehabilitative measures.
Removals from the list(s) may be probated and may have conditions for probation or reapplication. An order of removal shall state the earliest date on which an application for reinstatement may be made.
The decision of the Juvenile Board is final and is not appealable.
i. 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.
ii. 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.
iii. An attorney removed under grounds 6 or 7 shall be immediately reinstated upon providing proof that the charges were dismissed or that the attoney was acquitted, unless other grounds for removal exist against that attorney that would prohibit reinstatement.
F. Duties of Appointed Counsel - Appointed Counsel shall:
i. Maintain an office with a telephone which is answered by an individual from 9:00 am to 12:00 noon and 1:00 pm to 5:00 pm , Monday through Friday (except for Taylor County holidays as published annually by the Taylor County Commissioner's Court), and which person can promptly locate the attorney and notify the attorney of the appointment or hearing setting. Changes in address, telephone number, fax number, or e-mail address must be given to each Taylor County judge prior to the change.
ii.. Make every reasonable effort to:
1. Contact the child by the end of the first day after the date on which the attorney is appointed; and
2. Interview the child as soon as practicable after the attorney is appointed;
iii. Represent the child until:
1. The case is terminated, including probation revocations and appeals;
2. The family retains an attorney;
3. The attorney is relieved of his duties by the court or replaced by other counsel.
iv.. 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.
v. 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.
vi. Maintain a high standard of ethical conduct and always be completely candid with the trial court.
vii. Timely inform the client of matters relating to the preparation, trial, and disposition of the case, appellate and writ rights, probation revocations, deadlines and procedures for proper processing; and such other matters as necessary to provide reasonable assistance of counsel.
viii. Remain in good standing with the State Bar of Texas.
ix. Professionally perform duties and responsibilities of a licensed attorney of the State Bar of Texas.
x. Complete the continuing legal education requirements and all other duties, obligations and responsibilities of this Plan.
Prompt Appointment of Counsel
A. Appointment of Counsel for Children in Detention
i. Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct.
ii. 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 no attorney is immediately retained by the juvenile or his or her family, an attorney will be appointed to represent the juvenile at the initial detention hearing. The Juvenile Probation Department, as the designee of the Presiding Juvenile Judge, will select a name from the first five appearing on the General Juvenile Appointment List.
v. Upon appointment, the Juvenile Probation Department shall notify the appointed attorney by fax, e-mail, or personal contact of the appointment and the scheduled hearing time and date and confirm such notification with the Presiding Juvenile Judge. If the determination is later made that the juvenile is not indigent, the juvenile or his or her parents may be billed by Taylor County for reimbursement for fees paid to the court appointed counsel.
vi. 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.
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.
B. Appointment of Counsel for Children not Detained at Intake
i. If the child is released from detention and if a petition to adjudicate or a motion to modify is filed, the juvenile court will use the financial forms gathered at intake to make a determination of indigence. If no financial information is available, the juvenile court shall promptly summon the child’s parent/guardian/custodian to the court so that financial information may be gathered for a determination of indigence.
ii. If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:
a. The date a petition for adjudication or discretionary transfer hearing has been served on the child; or
b. A motion to modify disposition seeking commitment to TYC or placing in secure correctional facility has been filed.
iii. If the family does not qualify for appointed counsel or if the parent or guardian is not available, and the family fails to provide an attorney, the juvenile court may appoint an attorney in any case in which it deems representation necessary to protect the interests of the child.
iv. The prosecuting attorney/court clerk shall notify the juvenile court upon the filing of and return of service of a motion to modify or the return of service of a petition for adjudication or discretionary transfer.
Attorney Selection Process
A. The Juvenile Probation Office, as the designee of the Presiding Juvenile Judge, will contact the attorney whose name is first on the list, for appointment, unless there is good cause for appointing an attorney out of order. Good cause may include:
i. The child requesting counsel does not understand English, in which case the lawyer whose name appears next in order and speaks the clients’ language, will be appointed, if one is available;
ii. 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;
iii. An initial detention hearing is scheduled and the first attorney on the list is unavailable;
iv. A child whose sibling has appointed counsel will have the same attorney appointed for such child, unless the appointment would cause a conflict of interest or other ethical problem for such attorney.
v. 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 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:
1. Counsel’s failure to appear at a court hearing;
2. Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
3. 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;
4. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
5. The child requests an attorney, other than trial counsel, for appeal; or
6. 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
A. Court appointed counsel shall receive such reasonable compensation as established by Standing Order of the Council Of Judges for Taylor County, Texas and the Taylor County Juvenile Board. The fee schedule adopted by formal action of the Council of Judges and the Juvenile Boared shall comply with provisions of the Texas Code of Criminal Procedure, all applicable law and shall be submitted to the Taylor County Conmissioners Court.
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 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 to the trial judge on the form approved by the Taylor County Juvenile Board:
a. within 15 days of the date of disposition of the case by plea or bench trial;
b. within 15 days of the date of verdict in a jury trial;
c. within 15 days of the date of the mandate being returned in an appeal.
Bills for appointed attorney's fees not submitted timely will be considered waived, the services performed Pro Bono, and the request for attorney's fees not paid.
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, and provide a copy of such findings to the attorney.
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. 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:
1. 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.
APPLICATION FORM FOR INCLUSION ON APPOINTMENT LIST
The Taylor County Juvenile Board will prepare and distribute to licensed attorneys the "Statement of Licensed Attorney Residing or Practicing Law in Taylor County , Texas" who may want to apply for inclusion on the Taylor County Juvenile Appointment Lists.
Callahan Coleman Taylor Juvenile Board Affidavit of Indigence for Callahan and Coleman.docx (10/30/2019 3:04:47 PM) view
Callahan Coleman Taylor Juvenile Board Affidavit of Indigence for Taylor.doc (10/29/2019 11:22:58 AM) view
Callahan Coleman Taylor Juvenile Board Attorney Fee Schedule.docx (10/22/2019 2:53:55 PM) view
Callahan Coleman Taylor Juvenile Board Attorney Fee Voucher.doc (10/28/2019 2:46:28 PM) view