Rusk District Court and County Court Plan
Be it remembered that on this date the below signed County/District
Judges for Rusk County, Texas, hereby adopt, order, establish and order
published these countywide procedures, rules, and orders for the timely and
fair appointment of counsel for indigent accused persons in Rusk County, Texas. This document is the Rusk County District
Plan to conform with the requirements of Article 71.0351 of the Texas
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
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
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 probably 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
ii. After making such determination, the magistrate shall, in an
appropriate manner consistent with the Texas Code of Criminal Procedure
Articles 38.30 and 38.31, do the following:
the accused of the accusation against him/her and any affidavit filed
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 not to make a statement and that any statement
made by the accused may be used against him/her; and
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
4. Inquire as to whether accused is requesting that counsel be
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
probably 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
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
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
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
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
3. Whether the accused requested
appointment of counsel.
vi. 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.
vii. 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
viii. 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
ix. For persons arrested on out-of-county warrants, the magistrate will ask the defendant if he/she would like to request appointed counsel. The magistrate will record the response, and if counsel is requested, the magistrate will provide the arrestee with the appropriate forms for requesting counsel. The magistrate will ensure assistance in completing the forms at the same time. The forms will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made.
Indigence Determination Standards
as used in this role:
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
iii. “Household” means all individuals who are actually dependent
on the accused for financial support.
iv. “The cost of obtaining competent private legal
representation” includes the reasonable cost of support services such as
investigators and expert witness as necessary and appropriate given the nature
of the case.
B. Eligibility for Appointment
i. An accused is presumed indigent if any
of the following conditions or factors are present:
1. At the time of requesting appointed counsel, the accused or
accused’s dependents are eligible to receive food stamps, Medicaid, Temporary
Assistance for Needy Families, Supplemental Security Income, or public housing;
2. The accused’s net household income does not exceed 125% of
the Poverty Guidelines as revised annually by the United States Department of
Health and Human Services and published in the Federal Register; or
3. The accused is currently serving a sentence in a
correctional institution, is currently residing in a public mental health
facility, or is subject to a proceeding in which admission or commitment to
such a mental health facility is sought.
ii. An accused who does not
meet any of the standards above shall nevertheless be
considered indigent if the accused is unable to retain private counsel without
substantial hardship to the accused or the accused’s
dependents. In considering if obtaining
private counsel will create a substantial
hardship, the appointing authority shall take into account:
1. the nature of the criminal 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 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
iii. Factors NOT
to be considered in determining indigence;
1. The accused’s posting of bail or
ability to post bail may not be considered in determining whether the accused
2. The resources available to friends or
relatives of the accused may not be considered in determining whether the
accused is indigent.
iv. Only the
accused’s financial circumstances as measured by the financial
standards stated in this rule shall be used as the basis for
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
ii. Information gathered for determining indigence, both in the
affidavit of indigence and through oral examination, may not be for any purpose
if accused is (or is not) indigent, or
2. Impeaching direct testimony of accused
regarding the accused’s indigence.
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
accused determined to be indigent is presumed to remain indigent for the remainder
of the case unless material change in the accused’s financial circumstances
1. An accused’s status as indigent or not
indigent may be reviewed in a formal hearing 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;
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
Minimum Attorney Qualifications
Judges hearing criminal cases 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. Misdemeanor Qualification
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/form prescribed by the Texas Indigent
Defense Commission to the Office of Court Administration.
4. An attorney shall complete a minimum of
6 hours of CLE in the area of criminal law and procedure each year. All attorneys on the appointment list must
file a certificate with the court coordinator’s office each year attesting to
completion of the required CLE or submit documentation showing that the
attorney is certified as a specialist in criminal 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.
5. An attorney must have a minimum 1 year
experience in criminal law; or be accompanied by an attorney with 3 years
experience in criminal law;
6. An attorney 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 3 years;
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 court
administration office 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.
10. Attorney shall reside in Rusk County or
maintain principal office in Rusk County or an adjacent County.
ii. State Jail and Third Degree Felony Case
1. An attorney must meet general
requirements for misdemeanor appointments;
2. An attorney must have a minimum 1 year
experience in criminal law;
iii. First and Second Degree Felony Case
1. An attorney must meet the general
requirements for State Jail and third Degree Felony appointments.
2. An attorney must have a minimum 5 years’
experience in criminal law;
3. An attorney must have experience as 1st
or 2nd chair in at least 5 felony cases tried to verdict before a
jury. The styles and cause numbers of
these cases must be listed in the District Courts appointment application form.
iv. Capital Case Qualification Requirements:
1. Lead trial counsel must be on the list
of attorneys approved by the local selection committee of this Administrative
Judicial Region for appointment as lead counsel in death penalty cases, as
provided in Article 26.052, Texas Code of Criminal Procedure.
2. Second chair counsel must be on the
list of attorneys approved by the local selection committee of this
administrative judicial region for appointment as lead trial counsel or second
chair counsel in death penalty cases, as provided in Article 26.052, Texas Code
of Criminal Procedure.
3. Appellate counsel must be on the list
attorneys approved by the local selection committee of this administrative
judicial region for appointment as appellate counsel in death penalty cases, as
provided in Article 26.052, Texas Code of Criminal Procedure.
v. Appeal Qualification Requirements – An
attorney must meet at least one of the following criteria:
1. Be currently board certified in
criminal law by the Texas Board of Legal Specialization; or
2. Have personally authored and filed at
least three criminal appellate briefs or post-conviction writs of habeas
3. Have submitted an appellate writing
sample approved by a majority of the judges; or
4. Have worked as a briefing clerk of an
appellate court for a period of at least one year.
B. Approval for Appointment Lists
i. Misdemeanor List – An attorney must be
approved by the Statutory
County Court Judge hearing criminal cases.
ii. State Jail and Third Degree Felony,
First and Second Degree Felony List, Capital
Case List, and Appeal List – An attorney must be approved for each
list by the District Court Judge hearing criminal cases.
C. Removal from Appointment List – The
judge 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.
to Appointment Lists
i. An attorney who was removed from the
appointment list for non-completion of the require 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
ii. An attorney who was removed from the
appointment list for not submitting the attorney’s annual practice time report
may be immediately reinstated upon submission of the report so long as the
attorney otherwise meets the other qualifications under this Plan.
iii. 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.
E. Duties of Appointed Counsel – Appointed
i. Notify the court within 72 hours of the
receipt of the appointment;
every reasonable effort to:
1. Contact the Defendant by the end of the
first working day after the date on which the attorney is appointed; and
2. Interview the defendant as soon as
practical after the attorney is appointed;
iii. Represent the defendant until:
1. Charges are dismissed;
2. The defendant is acquitted;
3. Appeals are exhausted; or
4. The attorney is relieved of his duties
by the court or replaced by other counsel after a finding of good cause entered
on the record.
iv. Investigate, either by self or through
an investigator, the facts of the case and
be prepared to present any factual defense(s) that may be reasonably and
arguably available to the defendant;
v. Brief the law of the case and be
prepared to present any legal defense(s) that
may be reasonably and arguably available to the defendant;
vi. Be prepared to negotiate with the
prosecutor for the most favorable resolution
of the case as can be achieved through a plea agreement;
vii. Be prepared to try the case to conclusion
either with or without a jury;
viii. 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
ix. Maintain reasonable communication and
contact with the client at all times
and keep the client informed of the status of the case; and
x. Advise the client on all matters
involving the case and such collateral matters
as may reasonably be required to aid the client in making apropriate
decisions about the case; and
xi. Perform the attorney’s duty owed to the
defendant in accordance with these
procedures, the requirements of the Code of Criminal Procedure, and
applicable rules of ethics.
xii. 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.
xiii. The judges may remove an attorney from the
list of qualified counsel for failing
to abide by these requirements and terms or for good cause.
ix. Emergency Appointment: if no attorney
who meets the continuing legal education
or board certification requirements is available by the time an attorney
must be appointed in the case, another attorney shall be appointed. The person making the appointment shall give
priority to an attorney
with experience in criminal law or juvenile law, respectively.
x. Attorneys must be approved by the judge
(or judges) to be placed on the appointment
Prompt Appointment of Counsel
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: Justice of the Peace #5. The defendant may submit these forms to: Justice of the Peace #5.
The court will rule on all requests for counsel submitted in this manner.
vi. Appointment Authority
1. If no case has been filed in the trial court, the appointing authority for misdemeanors is: Justice of the Peace #5.
2. If no case has been filed in the trial court, the appointing authority for felonies is: Justice of the Peace #5.
3. If the case has been filed in the trial court, the appointing authority is: the judge of the County Court of Law for misdemeanors and the judge for 4th District Court for felonies.
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
A. The appointing authority
will identify which of the appointment lists, discussed in the Section III
(attorney qualifications), is most appropriate based on the accusations against
the defendant and will appoint the attorney whose name is first on the list,
unless good cause exists for appointing an attorney out of order. Good cause may include:
i. The defendant 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
ii. The defendant 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; or
good cause exists for varying from the list.
B. On arraignment dates, the District Court
will arrange a sufficient number of attorneys from the appointment list to be
present. These attorneys will be chosen
in the order their names appear on the list. Due to the inadequate number of counsel on the appointment list, the Court retains discretion to appoint attorneys not on the list who meet minimum qualifications set out in the plan.
C. In Motion to Revoke cases, the District
Court will appoint the same attorney that represented the Defendant in the
original action if available. The District
Court will follow the appropriate list and procedure as set out in “B” above if
D. 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.
Removal from Case:
judge presiding over a criminal case may remove appointed counsel upon entering
a written order showing good cause for such removal, including without
limitation, the following;
failure to appear at a court hearing;
failure to comply with the requirements imposed upon counsel by this plan;
information about the defendant and the charges against the defendant indicate
that another qualified attorney is more appropriate for the defendant under
of appointed counsel in a death penalty case is required under Article 26.052(e),
Texas Code of Criminal Procedure;
appointed counsel shows good cause for being removed, such as illness, workload
or scheduling difficulties;
defendant requests an attorney, other than trial counsel, for appeal; or
defendant shows good cause for removal of counsel, including counsel’s
persistent or prolonged failure to communicate with the defendant.
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 be compensated for all reasonable and appropriate services rendered in
representing the accused. Compensation
shall be reasonable for time and effort expended and will be in accordance with
a fee schedule adopted and approved by a majority of the judges hearing
criminal cases in the county.
B. Payment Process: No payment of attorney’s fees will be made
other than in accordance with the rules set forth below.
i. An appointed attorney shall fill out
and submit a fee voucher to the court for services rendered.
ii. The trial judge presiding over the
proceedings shall review the request for compensation and either approve or
disapprove the amount requested.
1. If a judge disapproves a request for
compensation, the judge shall make written findings, stating the amount of
payment that the judge approves and each reason for approving an amount
different from the requested amount.
2. An attorney whose request for payment
is disapproved or is not otherwise acted on by the 60th day after
the date the request for payment is submitted may appeal the disapproval or
failure to act by filing a motion with the presiding judge of this administrative
C. Payment of Expenses:
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 prior approval
shall be paid according to the procedures set forth below. Prior court approval is encouraged before any extra ordinary expense is incurred.
With Prior Court Approval:
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:
type of investigation to be conducted or the type of expert to be retained;
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
itemized list of anticipated expenses for each investigation and/or each
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:
the reasons for the denial in writing;
the denial to the confidential request; and
the request and denial as a sealed exhibit to the record.
iii. Procedure Without Prior Court Approval
1. Counsel may incur reasonable and necessary expenses without prior approval of the Court. However, an attorney not obtaining prior approval may be proceeding at his/her own risk that the Court will not find the expenses reasonable and necessary
2. Counsel must present a request for payment of expenses detailing each expense and the reason such expense was incurred
3. The Court will reimburse an attorney reasonable and necessary expenses in whole or part. If the Court denies in whole or part, the court shall:
a. State the reasons for the denial in writing;
b. Attach the denial to the request; and
c. Submit the request and denial as an exhibit and to counsel.
This plan was approved by the Judge of the
Rusk County Constitutional County Court, the County Court at Law, and the 4th
Judicial District Court.
Honorable Judge Joel Hale Honorable
Judge Chad Dean
Rusk County Judge Rusk
County Court at Law
Honorable Judge J. Clay Gossett
4th Judicial District Court
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Rusk District and County Court Request for appointment of Counsel.pdf (10/26/2017 4:41:10 PM) view