Palo Pinto District Court Plan
LOCAL INDIGENT DEFENSE RULES AND PLAN
FOR THE 29TH JUDICIAL DISTRICT COURT,
PALO PINTO COUNTY, TEXAS
PROMULGATED IN ACCORDANCE WITH THE PROVISIONS OF
THE TEXAS FAIR DEFENSE ACT
The Judge of the 29th Judicial District Court of Palo Pinto County, Texas, hereby adopts the following plan and local rules for determination of indigence in felony criminal cases; (including pending cases, Motion to Revoke Probation, Motion to Adjudicate Guilt and appeals of criminal conviction); establishing procedures for timely appointment of attorneys to represent indigent defendants; establishing qualifications for appointment; listing qualified attorneys for appointment in specified cases; and setting out uniform schedules of fees for compensation of appointed attorneys in said court.
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 29th District Judge. (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. Regarding the appointment of counsel, persons arrested in other counties on local warrants must be appointed counsel in the county that issued the warrant within 1 working day of receipt of the request in counties with a population of 250,000 or more and within 3 working days of receipt of request in counties under 250,000. Persons arrested on out-of-county warrants must be appointed counsel in the county of arrest if the person has not been transferred or released to the custody of the county issuing the warrant before the 11th day after the date of the arrest. [Art. 1.051(c-1), CCP].
Indigence Determination Standards
Determination of Indigence for Adults-Primary+Net Income+Assets Test
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. “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 accused 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. An accused is presumed indigent if 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.
ii. An accused is also considered indigent if the accused meetsany one of the following three criteria AND meets the asset test set out in subsection iii below:
1. the accused’s net household income does not exceed 100% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register;
2. 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; or
3. The difference between the accused’s monthly net household income and reasonable necessary expenses is less than $1,000.00. Reasonably necessary expenses should include but are not limited to: rent or mortgage, food/groceries, car payment,carinsurance, health insurance, medical bills, and utilities (water, electric, gas, phone).
iii. In addition to meeting one of the criteria under section ii above, an accused is considered indigent only ifthe value of non-exempt assets and property owned by the accused does not exceed the greatest of the following:
b. $5,000 in the case of an accused whose household 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 accused is charged.
iv. 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.
v. FactorsNOT to be considered in determining indigence:
1. The accused’sposting 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.
vi. 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 circumstances that shows that the accused does not meet any of the standards for indigence contained in these rules.
2. If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.
v. If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.
Minimum Attorney Qualifications
Qualifications For Appointment
All attorneys residing or practicing in Palo Pinto County, Texas, who are licensed to practice law by the Supreme Court of Texas and who handle felony criminal defense cases in the 29th District Court for a fee are eligible for appointment to represent indigent defendants in said court as provided below. Appointees must meet the following minimum qualification standards for appointment:
1. Be a member in good standing of the State Bar of Texas;
2. Have adequate experience in the practice of criminal law to proficiently represent a defendant in a felony criminal case;
3. Have a willingness to promptly interview the client and potential witnesses, perform required research, prepare and present pretrial motions, cross-examine adverse witnesses, and to zealously defend the client in a jury trial, bench trial, or plea proceeding;
4. Have a thorough knowledge of the provisions of the Texas Penal Code, The Texas Code of Criminal Procedure, and the applicable rules of ethics;
5. An attorney shall complete a minimum of six hours of continuing legal education pertaining to criminal law each reporting period;
6. Court appointed attorneys shall submit by October 15 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 and juvenile delinquency cases. The report must be made on a form prescribed by the Texas Indigent Defense Commission for the prior 12 months beginning on October 1st and ending on September 30th. The report must be submitted through the online form to the Texas Indigent Defense Commission;
7. Have not been removed for good cause from the public appointment list by the judge in whose court the attorney is appointed to serve;
8. Court appointed counsel on the approved list must maintain an office with a telephone which is answered by a receptionist or answering service from 8:00 a.m. to 12:00 p.m. and from 1:00 p.m. to 4:30 p.m. Monday through Friday (except for days designated as official holidays by the Commissioner's Court in Palo Pinto County) and which receptionist or answering service can promptly locate the attorney and notify said attorney of appointment or hearing setting. Court appointed counsel on the approved list must maintain an electronic facsimile machine ("FAX") number to which document transmittals may be received 24 hours a day, seven days a week. All telephone and FAX numbers shall be provided to the Court Coordinator and to the office of the District Clerk in writing and if subsequent changes are made said changes must be reported in writing immediately;
9. A court may replace an appointed attorney if the attorney does not make an effort to contact the defendant by the end of the first working day if the defendant is in custody, or does not interview the defendant as soon as possible;
10. The District Judge may remove an attorney from consideration of appointments if the attorney intentionally or repeatedly does not fulfill the duties required by law, rules, local rules, or provisions for providing reasonable assistance of counsel or complying with the requirements for inclusion on the approved list for counsel for indigent accused persons;
11. Applicants must be approved by the District Court before they are added to the list;
12. In the event qualified attorneys are not available, in the sole judgment of the District Judge, an attorney meeting all the standards may be appointed;
13. On or before December 31st of each calendar year, the District Judge shall annually review and reform the list of attorneys eligible as court appointed counsel and cause same to be posted and made available to the public upon request. To be considered for inclusion on the List of Attorneys Eligible for Appointment of Persons Accused of Felony Offenses, an attorney must meet the CLE requirements specified in the Plan and provide written verification of the required CLE to the Judge or Court's Designee by November 30 of each calendar year;
14. In non-capital 1st or 2nd degree felony cases, have a minimum of two (2) years of experience in criminal litigation or have participated as counsel/co-counsel in three felony criminal cases. In 3rd degree or state jail felony cases or motions to revoke probation, have a minimum of one (1) year experience in criminal litigation or have participated as counsel/co-counsel in two felony criminal cases;
15. As lead counsel in capital cases in which the State is seeking the death penalty, meet the standards required of an attorney appointed to a death penalty case as set forth in Art. 26.052(d)(2)(A-F), Texas Code of Criminal Procedure. An attorney in the Eighth Administrative Region or any adjoining region who meets those standards may be appointed as lead counsel.
Prompt Appointment of Counsel
Procedures for Appointing Counsel
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 the Palo Pinto County Jail. The defendant may submit these forms to the 29th District Court.
The court will rule on all requests for counsel submitted in this manner.
vi. Appointment Authority
For Felony offenses whether a case has been filed in or not, the appointing authority for the appointment of counsel is: Teresia Greenhaw ~firstname.lastname@example.org 940.659.1274 phone; 844.637.2456 facsimile.
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.
Attorney Selection Process
Appointments from the list shall be made using a system of rotation. Attorneys shall be appointed from among the next five names on the appointments list in the order in which the names appear on the list, unless the court makes a finding of good cause for appointing an attorney out of order. “Good cause” includes, but is not limited to, experience of the attorney; complexity of the case; severity of the charges; and conflicts in representation. An attorney who is not appointed in the order in which the attorney’s name appears on the list shall remain next in the order on the list.
The judge or judge’s designee shall attempt to notify the attorney or attorney’s staff by telephone on the same day that the appointment is made, and a written copy of the order appointing the attorney shall be mailed that same day to the attorney’s office. The appointed attorney shall make every reasonable effort to contact the defendant no later than the end of the first working day after notification of appointment.
List of Attorneys for Appointment to Represent Defendants in Criminal Cases in the 29th Judicial District Court of Palo Pinto County, Texas.
David A. Pearson, IV
Fee and Expense Payment Process
PALO PINTO COUNTY DISTRICT COURT – ATTORNEY FEE SCHEDULE
Compensation of Counsel Appointed to Defend
Counsel appointed to represent indigent defendants in criminal proceedings in the District Court of Palo Pinto County shall be paid in accordance with the schedule of fees adopted by the District Court as follows, to-wit:
The following schedule of fees for court appointed counsel representing indigent defendants in criminal cases in this court is adopted effective November 1, 2019 in accordance with the provisions of Art. 26.05, Code of Criminal Procedure.
If the judge disapproves the requested amount of payment, the judge will make written findings stating the amount the judge approves and each reason for approving an amount different from the requested amount.
Expenses incurred without prior approval will be reimbursed if the expenses are reasonably necessary and reasonably incurred. Whenever possible, attorneys should seek prior approval. Expenses that are not necessary or reasonable will not be approved.
- Fixed Rate
- Court appearance prior to and including day of plea: $ 125.00
- Plea of guilty or true disposing of entire case:
State Jail Felony / or any MTR/MTA’s $ 500.00
3rd Degree Felony $ 550.00
2nd Degree Felony $ 600.00
1st Degree Felony $ 650.00
OCA’s $ 700.00
Add $300.00 for multiple cases/counts disposed of
involving same defendant
- Representation resulting in an order of dismissal of
indictment prior to plea, if based on activities of
Counsel $ 250.00
prior to dismissal indictment or complaint $ 150.00
- Attorney Withdrawals $ 250.00
- Representation in a Motion for Shock Probation $ 250.00
- Trial (including open pleas)
- $125.00 for each court appearance prior to trial
- $100.00 per hour of trial preparation up to maximum of 12 hours with billing statements detailing time expended
- $500.00 for each ½ day of trial
- Filing Motions for New Trial(without hearing) $ 100.00
(with hearing) $ 200.00
- Appeal to Court of Appeals (brief only) $ 1,250.00
(brief & oral argument) $ 1,500.00
- Appeal to Court of Criminal Appeals (if PDR granted) $ 850.00
- Post-Conviction writ of habeas corpus proceeding $ 450.00
- Hourly Rate
In cases involving rendition of legal services other than those listed above, fees may be computed on an hourly basis for reasonable and necessary time spent by the attorney at an hourly rate of not less than $60.00 nor more than $100.00. The attorney requesting payment under this provision shall keep an accurate account of time expended, services rendered, and dates involved, and shall furnish documentation thereof to substantiate the reasonableness and necessity of the services rendered and time spent on the case. Approval or disapproval of the reasonableness and necessity of time expended and/or services performed and the determination of the hourly rate to be applied shall be within the exclusive discretion of the Court, subject to appeal to the Presiding Judge of the Eighth Administrative Judicial District in accordance with the provisions of Art. 26.05(c), C.C.P.
Palo Pinto District Court Affidavit of Indigence.doc (10/30/2013 1:05:20 PM) view
Palo Pinto District Court Attorney Fee Schedule.pdf (10/30/2019 10:19:29 AM) view
Palo Pinto District Court Attorney Fee Voucher.doc (10/30/2013 1:06:03 PM) view