(a)The magistrates of this county will inform supervisory personnel of all law enforcement agencies operating within the county that each time a person is arrested, Texas law requires the officer making the arrest and any officer who later has custody to ensure that the person is taken before a magistrate without unnecessary delay, and never more than 48 hours after arrest.

 

(b)  The judges of this county will work with the magistrates, prosecutors, and law enforcement agencies in the county to devise appropriate procedures for meeting the time standards set forth in Rule 2.01(a).

 

(c)  Whenever an arrested person is first brought before a magistrate, the magistrate shall record the date and time that the person was first arrested and when the person was taken into custody.

 

(d)  Each time a magistrate or a judge has reasonable cause to believe that a law enforcement officer has engaged in unnecessary delay in taking a defendant before a magistrate after arrest, the magistrate or judge will inform the law enforcement officer’s supervisors.  In the event of repeated incidents of unnecessary delay by a law enforcement agency or officer, the judges will initiate communications with the law enforcement agency regarding corrective measures to ensure compliance with Rule 2.01(a) and with any procedures adopted pursuant to Rule 2.01(b).

 

 

2.02   Responsibilities of the Magistrate.

 

(a)  Whenever an arrested person is first brought before a magistrate, the magistrate shall immediately perform the duties described in Article 15.17 of the Code of Criminal Procedure, including:

 

(1)   The magistrate shall specifically inform the person arrested of the person’s right to request appointment of counsel if the person cannot afford counsel.

 

(2)   The magistrate shall specifically ask the person arrested whether the person wants to request appointment of counsel.

 

(3)   The magistrate shall specifically inform the person of the procedures for requesting appointment of counsel.

 

(4)   The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the time of the Article 15.17 hearing.

 

(5)   The magistrate shall ensure that the above information and assistance are provided in a manner and using terminology and language that the arrested person can understand.

 

(6)   If the arrested person does not speak and understand the English language or is deaf, the magistrate shall ensure that the information and assistance are provided with the assistance of an interpreter consistent with Articles 38.30 and 38.31 of the Code of Criminal Procedure.

 

(7)   If a magistrate has cause to believe that a person is not mentally competent to decide whether to request counsel, the magistrate will enter a request for counsel on the person’s behalf.  The magistrate shall record this request for counsel in a way that alerts the person making the appointment that counsel competent to represent mentally ill defendants should be appointed.

                 (8)  For a person arrested on an out-of-county warrant, the magistrate must ask if the person wants to                                  request counsel, inform the person of the procedures for requesting counsel, and ensure the person is                            provided reasonable assistance in completing the necessary forms for requesting counsel in the county                            issuing the warrant. Artical 15.18(a-1) Code of Criminal Procedure

                 (9)  Request for counsel made by persons arrested on out-of-county warrants must be transmitted to the 

                       appointing authority of the county issuing the warrant within 24 hours of the request being made. Artical 

                             15.18(a-1) Code of Criminal Procedure

(b) In each case in which an arrested person is taken before a magistrate for an Article 15.17 hearing, the magistrate will make an electronic or written record documenting:

 

(1) that the magistrate informed the person of the person’s right to request appointment of counsel;

 

(2) that the magistrate asked the person whether the person wanted to request appointment of counsel; and

 

(3) whether the person requested appointment of counsel.

 

(c) The record required under Rule 2.02 may be combined on the same form used to record the arrested person’s request for appointment of counsel and to transmit that request to the person making the appointment.

 

(d) The records required under this Rule shall be maintained for the same period required for all official records of criminal court proceedings.

 

2.03   Transmittal of Request for Appointed Counsel.  If the person arrested requests appointment of counsel and has completed the necessary forms, the magistrate shall transmit or cause to be transmitted to the appointing judge or person(s) designated by the judges to appoint counsel the forms requesting appointment of counsel.  The forms requesting appointment of counsel shall be transmitted without unnecessary delay and so that the person making the appointment receives the forms no later than 24 hours after the request is made.

 

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: 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 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:

 

(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; and

 

(2)  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).

 

(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.

 

 

 

3.03   Appointing Counsel for Partially Indigent Defendants.

 

(a) A defendant determined to be partially indigent shall be eligible for appointment of counsel only upon payment to the county of an appointment fee of $100 if charged with one or more misdemeanors, or $200 if charged with one or more felonies.  If a defendant determined to be partially indigent pleads or is found guilty, the court may order the defendant to comply with a payment schedule to reimburse the county for all indigent defense costs in the case.

 

(b) A defendant shall be considered partially indigent if the defendant does not meet any of the standards for indigence set forth in Rule 3.02 and:

 

(1)  the defendant’s net household income is greater than 125% but does not exceed 175% 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; 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 private legal representation on the offense(s) with which the defendant is charged.

 

3.04   Factors Not to be Considered.

 

(a) A defendant’s posting of bail or ability to post bail may not be considered in determining whether the defendant is indigent or partially indigent.  Even when a defendant has posted bail, the defendant’s financial circumstances are measured by the financial standards stated in this rule.

 

(b) The resources available to friends or relatives of the defendant may not be considered in determining whether the defendant is indigent.  Only the defendant’s financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.

 

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 person or agency designated in this rule by the judges] shall provide each arrested person who wants to request appointment of counsel with a form 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 person or agency designated in this rule by the judges] 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.

Rule 4.                 Selection and Appointment of Counsel

  1)     Misdemeanor List:

              (1) Currently Licensed and in good standing with the State Bar of Texas;

           (2) Exhibited proficiency and commitment to providing quality representation to criminal defendants;

           (3) Exhibited professionalism and reliability when providing representation to criminal defendants

           (4) Averaged 10 hours a year of continuing legal education courses relating to criminal law as recognized by the                         State Bar of Texas;

   

   2)     Juvenile List:

       (1) Currently Licensed and in good standing with the State Bar of Texas;

         (2) Exhibited proficiency and commitment to providing quality representation to juvenile offenders;

         (3) Averaged 6 hours a year of continuing legal education courses relating to juvenile law recognized by the State Bar of Texas:

3) State Jail Felony: 

         (1) Have met the qualifications for placement on the Misdemeanor List;

       (2) Have practiced in the area of criminal law for at least 1 year; and

       (3) Have tried to verdict at least 3 criminal jury trials as lead counsel or second chair.

  

 4) Third/Second Degree Felony and Sexual Assault

       (1) Have met the qualifications for placement on the Misdemeanor List:

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

       (3) Have tried to verdict at least 2 felony jury trials as lead counsel or second chair.

5) First degree Felony:

     (1) Have met the qualifications for placement on the Misdemeanor List;

     (2) Averaged 12 hours a year of continuing legal education courses relating to criminal law as required by the State               Bar of Texas;

     (3) Have practiced in the area of criminal law for at least 4 years; and

     (4) Have tried to verdict at least four felony jury trials (at least two as lead counsel)

6) Capital Felony List:

      (1) Have met the qualifications for placement on the First Degree

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

      (3) Have tried to verdict at least ten criminal jury trials as lead counsel, including at least eight felony trials, of which              at least six were trials in first or second degree felonies or capital felonies and at least two of which were                          homicide cases; and

      (4) For appointment in capital felony cases where the death penalty is sought the attorney must, in addition, meet the             qualifications set forth below in Rule 5

7) Appellate List:

       (1) Have met the qualifications set forth in paragraphs (1) through (4) of the requirements for placement on the                     Misdemeanor List; and

       (2) Have met at least one of the following criteria:

                (i) be currently board certified in criminal law by the Texas Board of Legal Specialization;

                (ii) have personally authored and filed at least 5 criminal appellate briefs or post-conviction writs of habeas                          corpus; or

       (iii) have submitted an appellate writing sample approved by a majority of the judges.

 

4.04   Approval of Attorneys by the Judges. 

 

(a)  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 majority of the felony judges approves the attorney’s placement on each such list.   In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on the misdemeanor appointment list only if a majority of the misdemeanor judges approves the attorney’s placement on the misdemeanor list.

 

(b) At least twice a year, on May 1st through June 30th and November 1st through December 30th following the submission of attorney applications for the public appointment lists, the felony judges in the county may evaluate the new applicants for each felony appointment list and the attorneys already on the lists based on their performance in court.  The judges will approve, by majority vote, those attorneys:

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

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

 

(c)  At least twice a year, May 1st through June 30th and November 1st through December 30th, following the submission of attorney applications for the public appointment lists , the misdemeanor judges in the county may evaluate the new applicants for the Misdemeanor List and the attorneys already on the Misdemeanor List based on their performance in court.  The judges will approve, by majority vote, those attorneys:

                            (1) who have met the objective qualifications set forth in Rule 4.03 for placement on the Misdemeanor                                  List; and

                            (2) whom the judges consider to be actually competent to adequately handle misdemeanor cases.

 

(d)  An attorney may be removed from one or more public appointment lists by a majority of the judges for the corresponding court level whenever the judges determine 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.  The judges may in their discretion remove an attorney from one or more lists, while continuing to approve the attorney for other lists.

         

          (e)  Attorneys failing to appear in court for settings and/or make arrangements to be excused by the court will receive an Attorney Non Compliance Order form the Judge. Appeals for an Attorney Non Compliance Order issued by a Judge will be made to the court issuing the Attorney Non Compliance Order no later than 10 days from the issuance of the Attorney Non Compliance Order. Three (3) judicial order of Attorney Non Complinace issued will result in the removal of attorney from all appointment wheels for 3 months.

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

 

(a)  At any given time, one district judge will serve as appointing judge for all defendants charged with felonies, and one county court at law judge will serve as appointing judge for all defendants charged with misdemeanors.

 

(b) Each judge will serve as appointing judge every week on a rotating basis in chronological order by court number using separate lists of current district and county court at law judges beginning March 2015.

 

(c) The current appointing judge will:

 

         (1)   receive all requests for appointment of counsel transmitted by the magistrate as provided in Rule 2;

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

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

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

 

(d)  Any appointing judge may delegate any of the responsibilities described in this Rule to a magistrate or to an indigent defense administrator who has  been designated by the judges and is a county employee hired to address administrative matters associated with indigent defense.

 

(e) The appointing judge or person delegated to make the appointment will appoint the lawyer whose name appears next in order on the public appointment list that corresponds to the most serious offense as currently charged, unless:

 

(1) the defendant requesting appointed counsel does not understand English, in which case the person making the appointment will appoint the lawyer who both appears next in order on the list and can communicate with the defendant in the defendant’s language;

 

(2) the person making the appointment exercises discretionary authority to appoint one of the attorneys whose name is among the next five names in order on the appropriate list; or

 

(3) in unusual circumstances, the person making the appointment enters a written finding of good cause on the record for appointing any qualified, willing attorney regardless of whether the attorney’s name is among the first five names on the appropriate list.

 

(f) Whenever a lawyer is appointed out of order under Rule 4.04(e), the lawyer who is appointed out of order will move to the last place in order on that list, and any lawyer who was not appointed will remain at the top of the list until appointed or removed from the list.

 

(g) 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.

 

(h) At the conclusion of all proceedings in the trial court, including post-trial motions, if an indigent defendant wishes to file an appeal, the appointing judge or person(s) designated by the judges to appoint counsel will appoint the lawyer whose name appears next in order on the Appellate List subject to the same rotation requirements as those in Rule 4.04(e) and (f).

 

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   Qualifications of 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 placement on the Capital Felony List in this county as set forth in Rule 4.02(e), 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 death penalty cases as first or second chair defense counsel; and

 (e) Be approved for appointment in the case by a majority of the felony judges in the county.

5.03   Qualifications of 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 placement on the Capital Felony List in this county as set forth in Rule 4.02(e), whether or not the attorney has ever applied for placement on that list; and

 

(c) Be approved for appointment in the case by a majority of the felony judges in the county.

 

Rule 8.        Attorney Fee Schedule and Compensation of Appointed Attorneys

         

8.01  Fee Schedule.  The county will pay appointed counsel for all time reasonably necessary for adequate representation of the defendant, as approved by a judge, according to the following fee schedule adopted as provided under Article 26.05(b) of the Code of Criminal Procedure:  

       

 

 8.03 Investigative and Expert Expenses.  Counsel appointed in a non-capital case shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior court approval shall be reimbursed, according to the procedures set forth below. When possible, prior court approval should be obtained before incurring expenses for investigation and for mental health and other experts.

 

(a)  Procedure With Prior Court Approval: 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, as applicable.                                                     

 

                     (1) the type of investigation to be conducted or the type of expert to    be retained;

                       (2) 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

                       (3) an itemized list of anticipated expenses for each investigation or each expert.

 

                   (a;1)     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:

 

(1)  state the reasons for the denial in writing;

(2)  attach the denial to the confidential request; and

(3)  submit the request and denial as a sealed exhibit to the record.

 

                  (b) Procedure Without Prior Court Approval: Appointed counsel may incur investigative or expert expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred. Unreasonable or unnecessary expenses will not be approved.

Hidalgo District and County Court Affidavit of Indigence.pdf (10/6/2010 2:17:43 PM) view
Hidalgo District and County Court Attorney Application for Appointment.pdf (10/18/2010 9:28:59 AM) view
Hidalgo District and County Court Attorney Fee Schedule.doc (10/6/2010 4:29:45 PM) view
Hidalgo District and County Court Attorney Fee Voucher.pdf (10/6/2010 2:18:05 PM) view
Hidalgo District and County Court Magistrate’s Warning Form.doc (9/27/2010 1:29:42 PM) view
Hidalgo District and County Court Public Defender Plan or Proposal.pdf (4/4/2014 10:18:08 AM) view