A child taken into custody must either be brought to a juvenile processing office as designated by the Juvenile Board 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 Lubbock County Juvenile Justice Center.  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.

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.

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.

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.

1)       Definitions, as used in this rule

a)      “Indigent” means a person who is not financially able to employ counsel.

b)      “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 in income.

c)      “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.

d)     “The cost of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and expert witnesses a necessary and appropriate given the nature of the case.

                                                 

2)      Eligibility for Appointment

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

b)      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.

c)      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.

d)     The child’s parent(s) or other person(s) determined responsible for the support of the child is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought; or

e)      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. 

f)       In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:

(1)     the nature of the charges(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;

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

(6)     source of income;

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

(8)     outstanding obligations;

(9)     necessary expenses; and

(10) the number and ages of any siblings of the child.

g)      Factors NOT to be considered in determining indigence:

i)        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.

ii)      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.

 

3)      Indigence Proceedings

a)      The appointing authority can require the child and the child’s parent(s) or other person(s) responsible for the child to respond to questions about the child’s household financial status, produce documentation supporting financial information provided and/or order a court official to verify financial information provided.

b)      Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:

c)      Determining if child is (or is not) indigent; or

d)     Impeaching direct testimony of the child or the child’s parent(s)/person (s) responsible regarding the child’s indigence.

e)      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.

f)       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.

g)      A child’s status as indigent or not indigent may be reviewed in a formal hearing at any stage or 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;

i)        Evidence of a material change in the child’s parent(s)/person(s) responsible and the child’s financial circumstances; or

ii)      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.

h)      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 reasonable expended on the case.

i)        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 provides, including any expenses and cost, the court shall order the child’s parent(s) or other person(s) responsible for the child, if found to have engaged in delinquent conduct or CINS, to pay 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.  The finding that the child can repay part or in whole the costs.  An order supporting such finding shall be entered.

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:

1)      General Requirements:

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

b)      An attorney must be a licensed practicing attorney and a member in good standing of the State Bar of Texas;

c)      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 and “Annual Certification of the Knowledge of the Local Rules” with the Administrative Office of the Courts by July 1 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 any attorney’s initial reporting period may be used to meet the educational requirements for the initial year;

d)     Pursuant to Article 26.04, an attorney shall, effective October 15, 2014, no later than October 15^th of each year and on a form prescribed by the Texas Indigent Defense Commissioner, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney’s practice time that was dedicated to work based on appointments accepted;

e)      Must be knowledgeable in juvenile law and be aware of collateral consequences of a juvenile adjudication and disposition;

f)       An attorney must maintain an office capable of receiving email, fax, and telephone calls;

g)      An attorney must have the ability to produce typed motions and orders;

h)      An attorney shall notify the Juvenile Board promptly, in writing, or any matter that would disqualify the attorney by law, regulation rule, or under these guidelines from receiving appointments to represent indigent defendants.

i)        An attorney must have attended the orientation class given by the judge of the designated juvenile court or Lubbock County Associate Judge for Juvenile Matters.  The orientation class may be the annual local juvenile seminal or other classes set as needed by the Lubbock County Juvenile Board.  In addition, applicants shall be required to complete the following mentor program.  The applicant before being place on the revolving list must be assigned (without compensation) to join with a designated appointed attorney on the list to work through from beginning to conclusion of a child’s case on two cases beginning at initial appearance of children not in detention and two cases beginning at the detention hearing of children whom the state is seeking to detain.  This mentor program may be required of any attorney currently receiving appointment when required by any judge of the juvenile board or Lubbock County Associate Judge for Juvenile Matters or as voluntary required by any attorney on the list who wishes to improve upon their qualifications for appointments such as receipt of appointments of children with special needs or children accused of sexual offenses.  If a judge ever observes an appointed attorney who needs assistance of a mentor on a particular case the judge may appoint a mentor attorney, who shall be paid, to assist the appointed attorney.  Mentor attorneys shall be volunteer attorneys on the juvenile appointments list qualified to serve as mentors by their appointment level and experience selected by the magistrate or judge presiding at the judge’s discretion.

 

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

a)      Meet the General Requirements.

 

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

a)      Meet the General Requirements.

 

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

a)      Meet General Requirements

5)      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.

6)      Removal from Appointment List

a)      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.

b)      Every Judge should immediately call to the attention of the other Judges a lawyer who has not been exhibiting the qualifications necessary to represent the accused, of necessity to remove an attorney from the list for repetitive non-compliance with duties to contact and interview the client or other neglect and/or complaints.  These matters shall be brought to the attention of the Juvenile Board and any require hearing should be held as soon as practically possible at the next monthly meeting of the Juvenile Board.  Upon a majority vote of the Juvenile Board, the attorney, after notice and opportunity to be heard, may be removed from the list or other remedial action taken pursuant to this rule.

c)      Attorneys, after notice and opportunity to be heard as provided herein, may be removed from the appointment list for any of the following non-exclusive grounds for removal;

i)         The attorney requests removal from the appointment list

ii)       The attorney does not have the qualifications required for appointment

iii)      The attorney fails to contact or interview and timely perform the duties required by the Texas Fair Defense Act

iv)     The attorney has been found by a  court to have provided ineffective assistance of counsel

v)       The attorney has violated a rule of professional responsibility or otherwise disqualified by the State Bar Rules

vi)     An attorney shall be automatically removed for non-compliance with Rule 5.56.02(E) herein

vii)    For other good cause.

viii)  An attorney may voluntarily be temporarily removed from the appointment list by request.

d)     All officers of the courts, staff, and personnel are obligated to the Court to report any misconduct of an attorney directly to the Judge presiding over the matter.  Any misconduct, violations of ethics, neglect of duties to client, or actions omissions reflecting on qualifications to serve as court appointed counsel receiving appointments shall be brought to the attention of the Juvenile Board during Judicial Executive Session.  Any reporting obligations of the Judge presiding on any case to which the lawyer has been assigned to the State Bar is that particular Judge’s individual responsibility but for such conduct as reflects on ability and qualifications to remain on court appointed attorney list.

e)      Upon receiving a report or request for review for removal for one of the causes or good cause herein, the Juvenile Board shall cause to be drafted and forwarded to the attorney reasonable notice informing the attorney of the ground or grounds for removal, the time and place the Juvenile Board will meet to discuss the grounds for removal and give the attorney an opportunity to respond in writing, in person or both.

f)       After the Juvenile Board meets and gives the attorney an opportunity to be heard, the Juvenile Board shall determine whether the attorney should, be majority vote:

i)         Remain on the list;

ii)       Be removed altogether.

iii)      In addition, the majority of the Juvenile Board may also vote to require the attorney to take other rehabilitative measures.

g)      Removals from any list may be probated.  For removal or probated removals, the Juvenile Board may require the completion of rehabilitative measures as a condition of probation or re-application.

h)      The decision of the Juvenile Board is final and may not be appealed.

 

7)      Reinstatement to Appointment Lists

a)      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.

b)      An attorney who has been removed from the appointment list for any other reason and who wished to be reinstated must apply though the original application process.

 

8)      Duties of Appointed Counsel-Appointed Counsel shall

a)      Notify the court within 72 hours of the receipt of appointment;

b)      Make every reasonable effort to;

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

ii)       Interview the child as soon as practicable after the attorney is appointed;         

c)      Represent the child until:

i)         The case is terminated;

ii)       The family retains an attorney;

iii)      The attorney is relieved of his duties by the court or replace by other counsel.

d)     Investigate, either by self or through an investigator, the facts of the case and be prepared to present any factual defense that may be reasonable and arguable available to the child;

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

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

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

h)      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;

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

j)        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.

k)      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.

l)        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.

1)      Appointment of Counsel for Children in Detention

a)      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 the hearing.

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)      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.

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

e)      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 to represent the child and requiring that the child’s parent or other responsible adult reimburse the court for attorney’s fees.

f)       Upon appointment, the magistrate’s court coordinator shall notify the appointed attorney by fax, e-mail, or personal contact of the appointment and the scheduled hearing time and date.

g)      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.

h)      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.

i)        Court appointed attorney shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.

j)        Appointment of Counsel for Children not Detained at Intake

k)      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.

l)        If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:

m)    The Date a petition for adjudication or discretionary transfer hearing has been served on the child; or

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

o)      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.

p)      The prosecuting attorney/court clerk shall notify the juvenile court upon the filing of a return of service of a motion to modify or the return of service of a petition for adjudication or discretionary transfer.

The appointing authority will identify which of the appointment lists, discussed in the attorney qualification section, is most appropriate based on the accusations against the child and will appoint the attorney whose name is first on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order. 

Good Cause may include:

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.

5)      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.

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;

2)      Counsel’s failure to appear at a court hearing;

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

4)      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;

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

6)      The child request an attorney, other than trial counsel, for appeal; or

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

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.

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.

1)      Payment Process

No payment of attorney’s fees will be made other than 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.

iii)    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.

iv)    An attorney whose request for payment is disapproved or is not otherwise acted on by the 60^th 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 the 9^th Administrative Judicial Region.

2)      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 reasonable incurred.  Unreasonable or unnecessary expenses will not be approved.

 

Lubbock Juvenile Board Annual Certification of the Knowledge of the Local Rules.pdf (10/26/2009 4:29:23 PM) view
Lubbock Juvenile Board Attorney Application for Appointment.doc (10/26/2009 4:27:59 PM) view
Lubbock Juvenile Board Attorney Fee Schedule.pdf (11/1/2023 1:28:13 PM) view
Lubbock Juvenile Board Attorney Fee Voucher.wpd (2/21/2012 11:57:51 AM) view