Dimmit, Maverick and Zavala District Court and County Court Plan
Prompt Magistration
10/4/2016
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 293rd 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.

Indigence Determination Standards
7/7/2010

Rule 3.


Procedures and Financial Standards for Determining Whether a Defendant is Indigent


 


3.01 Definitions. As used in this rule:

(a) "Net household income" means all income of the defendant and spousal income actually available to the defendant. Such income shall include: take­home 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 defendant has no income or lesser income.

(b) "Non-exempt assets and property" means cash in hand, stocks and bonds, accounts at financial institutions, and equity in real or personal property that can be readily converted to cash, other than assets and property exempt from attachment under state law.

(c) "Household" means all individuals who are actually dependent on the defendant 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 as necessary and appropriate given the nature of the case.

3.02 Financial Standards for Determining Indigence. The financial standards set forth below shall be used to determine whether a defendant is indigent and shall be applied equally to each defendant in the county.

(a) A defendant is considered indigent if:

 

 

LOCAL RULES ON INDIGENT DEFENSE-PAGE 4


(1) the defendant's net household income does not exceed 125% of the Poverty Guidelines as established and revised annually by the United States Department of Health and Human Services and published in the Federal Register;3 and

(2) the value of the non-exempt assets and property owned by the defendant:

                                    (i)         does not exceed $2,500.00;

                                     (ii)       does not exceed $5,000.00 in the case of a defendant

whose household includes a person who is age 60 or over, disabled, or institutionalized; or

                                     (iii)       does not exceed double the estimated cost of obtaining

competent private legal representation on the offense(s) with which the defendant is charged.

(b) A defendant is considered indigent if, at the time of requesting appointed counsel, the defendant or the defendant's dependents have been determined to be eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.

(c) A defendant is considered indigent if the defendant.

(1) is currently serving a sentence in a correctional institution, is currently held in custody, is currently residing in a public mental health facility, or is the subject of a proceeding in which admission or commitment to such a mental health facility is sought; and

(2) has no non-exempt assets or property in excess of the amounts specified in Rule 3.02(a)(2).

"3 Commentary: The income levels in the following table represent 125% of the U.S. Department of Health and Human Services Poverty Guidelines for 2006 as published in 71 FR 3848 (Jan. 24,2006).


 


Household size


Income


 


      1 .................... .. .................... .. , ....................................................................... $12,250

      2 ............................................ , ......................................................................... . $16,500

      3 .............................. ., .. , ................................................................................... $20,750

      4 ................................. , ...................................................................................... $25,000

      5 .......................................................................................................................... $29,250

      6 .................... , ............ , ............................... ..................................... . . . . . . . $33,500

      7 .......................................................................................................................  $37,750

      8 …………………………………………………………………. . .........................$42,000

For family units with more than eight members, add $4,250 for each additional member in the family.

 

 

LOCAL RULES ON INDIGENT DEFENSE-PAGE 5


(d) A defendant who does not meet any of the financial standards above shall nevertheless be determined indigent if the defendant is otherwise unable to retain private counsel without substantial hardship to the defendant or the defendant's dependents, taking into account the nature of the criminal charge(s}, the anticipated complexity of the defense, the estimated cost of obtaining competent private legal representation for the matter charged, and the amount needed for the support of the defendant and the defendant's dependents.

 

 

 

3.05 Procedures for Determining Indigence.

(a) As soon as possible following arrest, and in any event not later than the Article 15.17 hearing, the arresting law enforcement agency shall provide each arrested person who wants to request appointment of counsel with a form4 approved by the judges on which the arrested person will provide under oath the necessary information concerning the person's financial resources and will indicate that the person requests appointment of counsel. The arresting law enforcement agency shall provide the arrested person reasonable assistance in completing the form.

(b) The form requesting appointment of counsel and containing the information concerning the arrested person's financial resources will be transmitted to the appointing judge or person(s) designated by the judges to appoint counsel in accordance with Rules 2.03 and 4.05.

(c) The appointing judge or person(s) designated by the judges to appoint counsel will determine whether the person meets the financial standards for indigence in Rule 3.02. The determination will be recorded on the form requesting appointment of counsel and the form will be filed with the other orders in the case.

(d) The arrested person may be required by the magistrate, the appointing judge, or the judge presiding over the case to respond to examination regarding the person's financial resources.

(e) A written or oral statement elicited under this article or evidence derived from the statement may not be used for any purpose, except to determine the defendant's indigence or to impeach the direct testimony of the defendant regarding the defendant's indigence.

(f) A defendant determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the defendant's financial circumstances occurs.

(g) A defendant's status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court proceeding based on evidence of a material change in the defendant's financial circumstances. A defendant's status as indigent or not indigent also may be reviewed in a formal hearing at any stage of a court proceeding based on additional information regarding financial circumstances, subject to the presumption. If a defendant previously determined to be indigent subsequently is determined not to be indigent, the attorney shall be compensated by the county in accordance with these Rules for time reasonably expended on the case.

3.06 Payment by Defendant. A court that finds that a criminal defendant has financial resources to offset, in part or in whole, the costs of legal services provided under this Part may order the defendant to pay the county that portion of the costs of legal services provided that it finds on the record that the defendant is able to pay.

 

Minimum Attorney Qualifications
10/31/2013

Rule 4.


Selection and Appointment of Counsel


 


4.01 Method of Appointment. Attorneys list shall be appointed to represent indigent defendants from appointment lists using a system of rotation as further specified in this rule.

4.02 Classifications for Appointment Lists. The judges hereby establish the following attorney classifications for the appointment lists from which counsel for indigent defendants shall be appointed.

(a) The Misdemeanor Classification shall consist of attorneys eligible for appointment to the Misdemeanor Appointment List for class A/B misdemeanors.

(b) The State Jail Felony Classification shall consist of attorneys eligible for appointment to the Felony Appointment List for state jail felonies, motions to revoke probation and extraditions.

(c) The Second and Third Degree Felony Classification shall consist of attorneys eligible for appointment to the Felony Appointment List for second and third degree felonies.

(d) The First Degree Felony Classification shall consist of attorney's eligible for appointment to the Felony Appointment List for first degree felonies (including enhanced felonies) and capital felonies (non-death penalty).

(e) The Capital Felony Classification consist of attorneys eligible for

appointment to the Capital Felony Appointment List for Capital Murder Felonies.

(f) The Appellate Classifications ( 1, 2, 3 and 4) consist of attorneys eligible for appointment to the Appellate Appointment List for direct appeals and writs of habeas corpus.

(g) Appointment of counsel to represent a defendant in motions to adjudicate proceedings shall be from the category appropriate for the offense(s) charged.

(h) The district judges shall compile the State Jail Felony Classification, the Second And Third Degree Classification, and the First Degree Classification, to create the Felony Appointment List. The district judges shall compile the Capital Felony Classification to create the Capital Felony Appointment List. The district judges shall compile the Appellate Classifications to create the Appellate Appointment List. The county judge shall compile the Misdemeanor Classification to create the Misdemeanor Appointment List. Each of the judges shall maintain their own appointment lists for use in their respective courts.

4.03 Attorney Qualifications. At any time, attorneys may apply5 to be included on one

 

 

4. 

or more of the appointment lists. To be eligible for placement on each list, attorneys must have met the following minimum qualifications6.

(a) State Jail Felony and Misdemeanor Classification. In order to be eligible for appointment to class AI B misdemeanors, state jail felonies, revocations of probation, and extraditions, the appointed attorney must

(1) Be currently licensed and in good standing with the State Bar of Texas, and maintain mandatory annual continuing legal education requirements;

(2) Have practiced in the area of criminal and/or civil litigation for at least one (1) year;

(3) Be familiar with the practice and procedure of the criminal courts of Texas.

(4) Have exhibited proficiency and commitment to providing quality representation to defendants;

(5) Have exhibited professionalism and reliability when providing representation to defendants;

(6) Have averaged eight (8) hours a year of continuing legal education courses relating to criminal law as recognized by the State Bar of Texas, which must be completed within one (1) year of initial application and preliminary certification under these standards.

(7) Attorneys must submit by October 15, each year the precentage of the Attorneys practice time that was dedicated to work based on appointments excepted in this county for adult criminal cases for the prior twelve months that begins on October 1, and ends on September 30. 

(b) Second and Third Degree Felony Classification. In order to be eligible for appointment to second and third degree felonies, the appointed attorney must

(1) Have met the qualifications for appointment to State Jail Felonies and Misdemeanors;

(2) Have practiced in the area of criminal law for at least two (2) years;

(3) Have tried to verdict as first chair or second chair at least two (2) trials. The trials may be of any grade felony, including state jail felonies or class A / B misdemeanors. At least one of these trials must be a jury trial.

(c) First Degree Felony Classification. In order to be eligible for appointment to first degree felonies (including enhanced felonies) and capital felonies (non death penalty), the appointed attorney must

 

 

 

(1) Have met the qualifications for appointment to state jail felonies and misdemeanors;

(2) Have practiced in the area of criminal law for at least four (4) years; (3) Be familiar with the Texas Rules of Evidence and have knowledge of the use of expert witnesses and evidence, including, but not limited to, psychiatric and forensic evidence.

(4) Have tried to verdict as first chair or second chair at least three (3) trials of any grade felony. At least two (2) of these trials must be jury trials.

(d) Mentor Classification. In order to be eligible to serve as a mentor to an attorney who is appointed to a criminal case of any degree felony offense, the mentor attorney must

(1) Have met the qualifications for appointment to first degree felonies and non-death penalty capital murder felonies; and

(2) Be willing and available to assist less experienced attorneys who have been appointed to represent criminal defendants in the preparation and/or trials of their cases.

(e) Appellate Classification 1. In order to be eligible to serve as appellate counsel for capital offenses whether or not the death penalty has been assessed and first degree felonies, the appointed attorney must

(1) Have met the qualifications for appointment to state jail felonies and misdemeanors;

(2) Have practiced in the area of criminal law for at least three (3) years; and

(3) Have filed a brief and/or argued two (2) cases before the Courts of Appeals of The State of Texas, the Texas Supreme Court, the Texas Court of Criminal Appeals, the Fifth Circuit Court of Appeals and/or the United States Supreme Court.

(f) Appellate Classification 2. In order to be eligible to serve as appellate counsel in all other felonies and misdemeanors, the appointed attorney must

(1) Have met the qualifications for appointment to state jail felonies and misdemeanors;

(2) Have filed a brief and/or argued one (1) case before the Courts of Appeal for the State of Texas, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Fifth Circuit Court of Appeals and/or the United States Supreme Court; or

(3) Have practiced in the area of criminal law for at least two (2) years.

(g) Appellate Classification 3. In order to be eligible to serve as writ counsel

in capital felonies where the death penalty has been assessed, the appointed attorney must

 

 

 


(1) Have met the qualifications for appointment to state jail felonies and misdemeanors;

(2) Have practiced in the area of criminal law for at least three (3) years; and

(3) Have filed a brief and/or argued at least one (1) case before the

Courts of Appeal of the State of Texas, The Texas Supreme Court, the Texas Court of Criminal Appeals, the US District Court, the Fifth Circuit Court of Appeals and/or the United States Supreme Court.

(h) Appellate Classification 4. In order to be eligible to serve as writ counsel for all other grades of offenses, an appointed attorney for any writ of habeas corpus must have met the qualifications for appointment to state jail felonies and misdemeanors.

4.04 Approval of Attorneys by the Judges.

(a) The local administrative judge shall evaluate and classify all new applicants for all lists, and will approve the eligibility of those attorneys who meet the objective qualifications set forth in Rule 4.03 for placement on the appropriate list. The local administrative judge will notify the other district judge(s) and county judge of the name of the new applicant and the attorney's classification, based on the objective qualifications.

(b) In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on one or more of the felony appointment lists only if a district judge approves the attorney's placement on each such list for his/her particular court.

(c) In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on the misdemeanor appointment list only if the county judge approves the attorney's placement on the misdemeanor list.

(d) The judges will approve those attorneys:

(1) who meet the objective qualifications set forth in Rule 4.03 for placement on the list; and

(2) who the judges consider to be actually competent to adequately handle cases associated with the list.

(e) An attorney may be removed from one or more appointment lists in a particular court by any district judge for his/her particular court for the felony lists and the county judge for the misdemeanor list, if it is determined that the attorney no longer meets the objective qualifications for that list or is not fully competent to adequately handle the category of cases associated with that list. Each judge may, in his/her discretion, remove an attorney from one or more lists in his/her court. While continuing to approve the attorney for other lists in his/her court.

4.05 Assignment of Attorneys. The following method shall be used to assign attorneys from the appropriate appointment list to represent individual defendants:

 

 


(a) The local administrative judge will serve as appointing judge for all defendants charged with felonies prior to indictment, and the county judge will serve as appointing judge for defendants charged with misdemeanors. Following indictment the district judge in whose court the case is pending will serve as appointing judge for said defendant.

(b) The appointing judge will:

(1) determine whether each defendant requesting appointed counsel is indigent, as provided in Rule 3;

(2) select and appoint the appropriate counsel to represent each indigent defendant as provided in this Rule; and

(3) cause all interested parties to be notified of the appointment as provided in Rule 6.

(c) Any appointing judge may delegate any of the responsibilities described in this Rule to a magistrate or the appointing judge's court administrator.

(d) Each attorney appointed under this Rule to represent the defendant in the trial court is appointed to represent the defendant through trial and post-trial proceedings in the trial court, and until all appeals are exhausted, or until the court, after entering a finding of good cause on the record, discharges the attorney and/or substitutes the attorney with other counsel.

4.06 Method of Appointment. Attorneys shall be appointed to represent indigent defendants from appointment lists using a system of rotation.

(a) Appointments will be made from a rotating list of the names of eligible attorneys, in alphabetical order.

(b) The appointing judge shall make any effort to insure that an attorney will receive only one (1) defendant per rotation on the appointment list unless the attorney notifies the appointing judge that he/she is willing to represent more than one defendant per rotation; however, the appointing judge may, in his/her sole discretion, appoint any attorney to more than one defendant per rotation if the judge's caseload, the availability of other counsel to represent the defendant, and the interests of justice so demand.

(c) In felony cases, an attorney may receive appointment for the highest level of offense for which he/she is qualified and for any lower level offense in which he/she has chosen to participate.

(d) In the interest of justice and to promote judicial economy, the appointing judge may, in open court, appoint any qualified attorney who is on the appointment list and who is present in court on the day that the appointment is necessary, without regard to the attorneys placement in order on the list.

 


4.07 Appointment of Cases Based on Classification.

(a) Mentor Classification.-Attorneys who have attained the First Degree Felony Classification and who are willing and available to assist less experienced attorneys in the preparation and/or trials of their cases. Mentor attorneys may be appointed to all felony cases, except death penalty capital murder felonies, unless otherwise qualified.

(b) Felony Degree Felony Classification. Attorneys qualified to handle non-death penalty capital offenses and first degree felonies will be appointed to all cases, except death penalty capital murder felonies, unless otherwise qualified.

(c) Second and Third Degree Felony Classification. Attorneys qualified to handle second and third degree felonies will be appointed to all cases except capital offenses and first degree felonies.

(d) State Jail Felony and Misdemeanor Classification. Attorneys qualified to handle state jail felonies and misdemeanors will be appointed only to state jail felonies, misdemeanors, motions to revoke community supervision, and extraditions.

(e) Appellate Classification 1. Attorneys qualified to handle appeals in death penalty and non death penalty capital murder cases and first degree felonies will be appointed to all writs and direct appeals.

(f) Appellate Classification 2. Attorneys qualified to handle all other direct appeals will be appointed to all direct appeals except death penalty appeals and all writs except death penalty writs.

(g) Appellate Classification 3. Attorneys qualified to handle death penalty capital murder writs will be appointed to all writs.

(h) Appellate Classification 4. Attorneys qualified to handle only non death penalty writs of habeas corpus will be appointed to all non death penalty writs.

(i) If no qualified attorney is available to accept an appointment, or if the appointment of an attorney who is qualified to accept the appointment would create an undue hardship on those attorneys who are qualified given the number of court appointed cases which they are already handling, the court may, in its discretion, appoint an attorney whose classification is one grade below the level of the case assigned. In said case, or in any other case, the court may, but shall not be required to, appoint a mentor attorney to assist the appointed attorney in the preparation and/or trial of the case, either on the court's own motion or at the request of the court appointed attorney.

 Rule 5.


Selection and Appointment of Counsel in Death Penalty Cases


 


5.01 Whenever a capital felony case is filed, the presiding judge in the district court in which the case is filed shall appoint two attorneys at the time the initial appointment is made, unless and until the state gives notice in writing that the state will not seek the death penalty.

5.02 Capital Felony Classification 1- Lead Counsel. To be assigned as lead counsel in a death penalty case an attorney must:

(a) Be on the list of attorneys approved by the local selection committee of the administrative judicial region for appointment in death penalty cases as provided in Article 26.052 of the Code of Criminal Procedure;

(b) Have met the qualifications for appointment to capital felonies and first degree felonies (First Degree Felony Classification) in this county as set forth in Rule 4.03(c), whether or not the attorney has ever applied for placement on that list;

(c) Have tried to verdict at least 15 felony jury trials as lead counsel;

(d) Have tried to verdict two (2) death penalty cases as first or second chair defense counsel; and

(e) Be approved for appointment in the case by the district judge presiding in the case.

5.03 Capital Felony Classification 2- Second Chair Counsel. To be assigned as second chair counsel in a death penalty case an attorney must:

(a) Be on the list of attorneys approved by the local selection committee of the administrative judicial region for appointment in death penalty cases as provided in Article 26.052 of the Code of Criminal Procedure;

(b) Have met the qualifications for appointment to capital felonies and first degree felonies (First Degree Felony Classification) in this county as set forth in Rule 4.03 (c), whether or not the attorney has ever applied for placement on that list; and

(c) Be approved for appointment in the case by the district judge presiding in the case.

                        Rule 6.            Notice of Appointment, Determination, and Contact with the

Defendant

6.01 Notice of Determination that the Defendant is Not Indigent. If the person making the appointment determines that a person who requests appointment of counsel is not indigent under the standards and procedures described in Rule 3, he or she will enter that finding on the person's counsel request form, cause it to be returned to the person, and cause a copy to be filed with the other orders in the case.

6.02 Notice of Determination that the Defendant is Indigent and Appointment of Counsel. If the person making the appointment finds that a person who requests counsel is indigent, he or she will cause all information in the notice of

 

 

 


appointment to be issued to the appointed counsel and to the indigent person, and to be filed with the orders in the case. Appointed counsel will be notified by at least one of the following methods: telephone, facsimile, electronic mail, in person, or other immediate means of communication.

6.03 Attorney Acceptance of Appointment and Contact with the Defendant. The appointed attorney is required to provide the court, an acknowledgment of the appointment and a confirmation that the attorney has made the reasonable effort required under Article 26. 040)(1) to contact the defendant by the end of the first working day after the date of the appointment:

(a) The appointed attorney shall deliver the acknowledgment and confirmation on a form? approved by the judges to the appointing judge or person(s) designated by the judges to appoint counsel.

(b) The acknowledgment and confirmation shall be filed in the appropriate court a district or county court cause number is available or by such other means as the judges may approve.

(c) The attorney shall confirm that by the end of the first working day after the date of appointment, the attorney initiated contact with the defendant by regular mail, facsimile, telephone, or in-person contact.

(d) In addition to the above duties, the appointed attorney shall have the further duty to interview the defendant as soon as practicable after the attorney is appointed.

                        Rule 7.            Replacement of Appointed Counsel

7.01 Attorney Request. A lawyer may be relieved from an appointment upon satisfying the judge that the lawyer has good cause for being relieved and that the client will not be prejudiced.

7.02 Judicial Determination. The judge presiding over a criminal case may replace appointed counsel after entering written findings in the record showing good cause for the replacement and no prejudice to the defendant, including, without limitation:

(a) current information about the defendant and charges indicates that counsel of different qualifications is appropriate for the defendant under these rules; or

(b) replacement of appointed counsel in a death penalty case is required under Article 26.052(e) of the Code of Criminal Procedure.

7.03 Defendant Request. The judge presiding over the trial court proceedings in a criminal case will replace appointed counsel at the defendant's request if:

(a) the defendant requests an attorney other than trial defense counsel for appeal or post-conviction habeas corpus proceedings; or

 

 

(b) the defendant shows good cause for replacing appointed counsel, including counsel's persistent or prolonged failure to communicate with the defendant.

7.04 Appointing Replacement Counsel. Whenever appointed counsel is replaced under this Rule, replacement counsel immediately shall be selected and appointed in accordance with the procedures described in Rules 4, 5, and 6.

Prompt Appointment of Counsel
10/4/2016

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.            Appointment Authority

1.      If no case has been filed in the trial court, the appointing authority for misdemeanors is the County Judge.

2.      If no case has been filed in the trial court, the appointing authority for felonies is the 293rd District Judge.

3.      If the case has been filed in the trial court, the appointing authority is the 293rd District Judge.

iv.   If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at theTexas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/. The defendant may submit these forms to the Criminal Court Coordinator. The court will rule on all requests for counsel submitted in this manner.

v.    If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within 3 working days of this county’s receipt of the request for counsel.

vi.    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.

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
11/17/2020

4.04 Approval of Attorneys by the Judges.

(a) The local administrative judge shall evaluate and classify all new applicants for all lists, and will approve the eligibility of those attorneys who meet the objective qualifications set forth in Rule 4.03 for placement on the appropriate list. The local administrative judge will notify the other district judge(s) and county judge of the name of the new applicant and the attorney's classification, based on the objective qualifications.

(b) In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on one or more of the felony appointment lists only if a district judge approves the attorney's placement on each such list for his/her particular court.

(c) In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on the misdemeanor appointment list only if the county judge approves the attorney's placement on the misdemeanor list.

(d) The judges will approve those attorneys:

(1) who meet the objective qualifications set forth in Rule 4.03 for placement on the list; and

(2) who the judges consider to be actually competent to adequately handle cases associated with the list.

(e) An attorney may be removed from one or more appointment lists in a particular court by any district judge for his/her particular court for the felony lists and the county judge for the misdemeanor list, if it is determined that the attorney no longer meets the objective qualifications for that list or is not fully competent to adequately handle the category of cases associated with that list. Each judge may, in his/her discretion, remove an attorney from one or more lists in his/her court. While continuing to approve the attorney for other lists in his/her court.

4.05 Assignment of Attorneys. The following method shall be used to assign attorneys from the appropriate appointment list to represent individual defendants: 


(a) The local administrative judge will serve as appointing judge for all defendants charged with felonies prior to indictment, and the county judge will serve as appointing judge for defendants charged with misdemeanors. Following indictment the district judge in whose court the case is pending will serve as appointing judge for said defendant.

(b) The appointing judge will:

(1) determine whether each defendant requesting appointed counsel is indigent, as provided in Rule 3;

(2) select and appoint the appropriate counsel to represent each indigent defendant as provided in this Rule; and

(3) cause all interested parties to be notified of the appointment as provided in Rule 6.

(c) Any appointing judge may delegate any of the responsibilities described in this Rule to a magistrate or the appointing judge's court administrator.

(d) Each attorney appointed under this Rule to represent the defendant in the trial court is appointed to represent the defendant through trial and post-trial proceedings in the trial court, and until all appeals are exhausted, or until the court, after entering a finding of good cause on the record, discharges the attorney and/or substitutes the attorney with other counsel.

4.06 Appointment in Capital Felony Cases

           (a) In counties that utilize the Regional Public Defender for Capital Cases ("RPDO"), the RPDO shall be appointed to all capital felony cases unless good cause exists to appoint private counsel.

                      (1) If a co-defendant requests appointment of counsel and is determined to be indigent, the Appointing Authority                      shall appoint counsel pursuant to the standards and procedures stated in this Section.

                      (2) If private counsel is appointed to a co-defendant, rather than the Regional Public Defender for Capital Cases,                    co-counsel will be appointed using the standards and procedures stated in the section below.

            (b) The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if:

                      (1) A conflict of interest exists;

                      (2) The Office has insufficient resources to provide adequate representation;

                      (3) The Office is incapable of providing representation in accordance with the rules of professional conduct;

                      (4) Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or

                      (5) The Office shows other good cause for refusing appointment.

             (c) The Appointing Authority shall immediately contact the attorneys appointed by phone, fax, e-mail or in person and             notify the attorneys of the appointment and the last known location of the defendant.

4.07 Method of Appointment for remaining cases. Attorneys shall be appointed to represent indigent defendants from appointment lists using a system of rotation.

(a) Appointments will be made from a rotating list of the names of eligible attorneys, in alphabetical order.

(b) The appointing judge shall make any effort to insure that an attorney will receive only one (1) defendant per rotation on the appointment list unless the attorney notifies the appointing judge that he/she is willing to represent more than one defendant per rotation; however, the appointing judge may, in his/her sole discretion, appoint any attorney to more than one defendant per rotation if the judge's caseload, the availability of other counsel to represent the defendant, and the interests of justice so demand.

(c) In felony cases, an attorney may receive appointment for the highest level of offense for which he/she is qualified and for any lower level offense in which he/she has chosen to participate.

(d) In the interest of justice and to promote judicial economy, the appointing judge may, in open court, appoint any qualified attorney who is on the appointment list and who is present in court on the day that the appointment is necessary, without regard to the attorneys placement in order on the list.



Fee and Expense Payment Process
12/9/2009

Rule 8.


Attorney Fee Schedule and Compensation of Appointed Attorneys


 


8.01 In order to ensure reasonable compensation for court appointed counsel, considering the necessary overhead costs and availability of qualified attorneys willing to accept the stated rates, the following guidelines shall be used to claim attorney's fees for court appointed counsel in felony and misdemeanor criminal cases, effective January 1, 2007.

(a) Compensation Rates and Requests for Payment See Appendices iv and v:

Fee Guidelines for Appointed Counsel in Misdemeanor Criminal Cases Fee Guidelines for Appointed Counsel in Felony Criminal Cases

(b) Court appointed counsel will be compensated for all necessary expenses, i.e., long distance telephone charges, copying expenses, and auto mileage outside of county. All major expenses, such as investigators and expert witnesses, will require written approval by the Court prior to the expense being incurred.

(c) Expenses incurred without prior court approval will not automatically be reimbursed. Such expenses shall be reimbursed if the Court determines that they are reasonably necessary and reasonably incurred upon representation of a claim for reimbursement.

(d) At the conclusion of the case, the appointed counsel shall present the completed voucher to the presiding judge for approval according to the fee schedules adopted by the District and County Judges. No payment shall be made until the form for itemizing the services performed is submitted to the judge presiding over the proceedings and the judge has approved the payment.

(e) An attorney whose request for payment is disapproved is entitled to a copy of the judge's findings for approving an amount different from the requested amount. The attorney may appeal the disapproval by filing a motion with the presiding judge of the Administrative Judicial Region, as provided in Article 26.05(c) Texas Code of Criminal Procedure.

(f) In a felony case, upon written motion filed no later than the date of the

plea agreement deadline, and for good cause shown, the judge presiding may authorize payment based on an hourly rate. The hourly rate shall be $60-$90 per hour for all documented in-court-time and $50-$80 per hour for all documented out-of-court time that is actually spent on the case that reasonable professionals would agree was objectively necessary for a qualified criminal defense attorney in the community to represent the client. 

 


(g) In a misdemeanor cases claims for payment based on an hourly rate shall not be authorized except for exceptional circumstances, as approved by the county judge. A written motion must be filed prior to the plea agreement deadline documenting said exceptional circumstances. If an hourly rate is authorized, it shall be paid at the rate of $50 per hour for all documented in­court-time and out-of-court time that is actually spent on the case that

 reasonable professionals would agree was objectively necessary for a     qualified criminal defense attorney in the community to represent the client.

(h) For good cause or exceptional circumstances, an appointed attorney may request payment at an hourly rate above the rates specified in subsections (a) and (b) of this Rule, subject to review and approval by the judge presiding over the case as specified in Rule 8.02.

8.02 Compensation of Mentor Attorney.

(a) In cases where a mentor attorney has been appointed by the court, the presiding judge may authorize payment for the mentor attorney based on an hourly rate as provided in Rule 8.01 (f).

(b) If the mentor attorney actually tries the case as first chair, with the approval of the court and the defendant, the mentor attorney shall be compensated at the standard daily rate authorized for felony cases as provided in Rule 8.01 (a) (Appendix v).

8.03 Compensation of Second Chair Trial Attorney

(a) In cases where a mentor attorney has been appointed by the court, if the mentor attorney serves as first chair counsel and the attorney originally appointed by the court serves as second chair counsel in the trial of the cause, the second chair attorney shall be compensated at 50% of the standard daily rate authorized for felony cases as provided in Rule 8.01 (a) (Appendix v).

(b) In cases where a mentor attorney has been appointed by the court, if the mentor attorney serves as second chair counsel, the compensation for the mentor attorney shall be at the hourly rate authorized by the court as provided I Rule 8.01 (f).

(c) In a trial of any felony case, any attorney may volunteer to serve as second chair counsel without compensation, with the approval of the court, the first chair counsel and the defendant.

8.04 Judicial Determination of Attorney Compensation. The judge presiding over the case for which the appointed attorney seeks compensation will use the following procedures to review and approve the appropriate compensation:

(a) The appointed counsel must submit to the presiding judge a form  

approved by the judges for itemizing the services performed8.

(b) The presiding judge considering a request for payment for services rendered under this Rule will either approve the amount requested or enter written findings stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.

(c) An attorney whose request for payment is disapproved may appeal the disapproval by filing a motion with the presiding judge of the administrative judicial region, as provided under Article 26.05(c) of the Code of Criminal Procedure.

(d)The county will promptly reimburse appointed attorneys for attorneys fees and for investigation and expert witness expenses incurred on behalf of indigent clients as provided under Articles 26.05(d) and 26.052(f) -(h) of the Code of Criminal Procedure.

Plan Documents
Dimmit Maverick Zavala District and County Court Acknowledgement of Counsel.rtf (12/1/2009 6:43:06 PM) view
Dimmit Maverick Zavala District and County Court Affidavit of Indigence.doc (12/1/2009 6:30:52 PM) view
Dimmit Maverick Zavala District and County Court Amended Standards and Procedures.rtf (12/9/2009 10:13:41 AM) view
Dimmit Maverick Zavala District and County Court Attorney Application for Appointment.doc (12/1/2009 6:32:56 PM) view
Dimmit Maverick Zavala District and County Court Attorney Fee Voucher.doc (11/10/2014 3:13:47 PM) view
Dimmit Maverick Zavala District and County Court Fee Guidelines for Appointed Counsel.doc (12/1/2009 6:45:32 PM) view
Dimmit Maverick Zavala District and County Court Magistrates Warning Form.doc (12/1/2009 6:38:42 PM) view