Shelby District Court Plan
The Justices of the Peace of Shelby County shall establish a plan to hold magistrate hearings each day. Within forty-eight (48) hours of arrest, the magistrate shall inform the accused person of his right to counsel as provided by the Indigent Defense Act in addition to the magistrates warnings as required by statute. A written record of the magistrate's warning and right to appointed counsel for indigent accused persons shall be made at the time of the hearing. After informing the accused person of his right to court-appointed counsel, the Justice of the Peace shall furnish that person with an affidavit of indigency to complete if a request is made for counsel by such person. The magistrate shall ensure that reasonable assistance in completing forms necessary to request counsel is provided to the accused. Upon completion of the request and affidavit, the magistrate shall forward the affidavit within twenty-four (24) hours to the office of the District Judge or the County Judge. After receiving the request and affidavit, the District or County Judge shall review the request and affidavit. Within three (3) working days of receiving the request and affidavit, the judge reviewing same shall either: (1) approve the request without a hearing and appoint counselor, or (2) conduct a hearing in the presence of the accused person to determine indigence. If the accused person is released from custody prior to appointment of counsel, then the judge shall determine indigence and appointment of counsel at the first court appearance of such person.
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. Within 24 hours of the request being made, the forms will be transmitted to the appointing authority in the county issuing the warrant.
Indigence Determination Standards
- Determination of Indigence for Adults
- Definitions, as used in this rule:
- “Indigent” means a person who is not financially able to employ counsel.
- “Net household income” means all income of the accused and spousal income actually available to the accused. Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); net self-employment income (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the accused has no income or lesser income.
- “Household” means all individuals who are actually dependent on the accused for financial support.
- “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.
- Eligibility for Appointment
- An accused is presumed indigent if any of the following conditions or factors are present:
- 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;
- 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
- 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.
- 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:
- the nature of the criminal charge(s),
- anticipated complexity of the defense,
- the estimated cost of obtaining competent private legal representation for the matter(s) charged;
- the amount needed for the support of the accused and the accused’s dependents;
- accused’s income,
- source of income,
- assets and property owned,
- outstanding obligations,
- necessary expenses,
- the number and ages of dependents, and
- spousal income that is available to the accused.
- Factors NOT to be considered in determining indigence:
- The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.
- The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.
- Only the accused's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
- Indigence Proceedings:
- The appointing authority can require the accused to respond to questions about the accused’s financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
- Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:
- Determining if accused is (or is not) indigent; or
- Impeaching direct testimony of accused regarding the accused’s indigence.
- A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond time lines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.
- An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused’s financial circumstances occurs.
- An accused’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the accused, the accused’s attorney, or the attorney representing the state. The accused’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:
- Evidence of a material change in the accused’s financial circumstances, as a result of which the accused does not meet any of the standards for indigence contained in these rules; or
- 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.
- 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.
- If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.
Minimum Attorney Qualifications
Minimum Attorney Qualifications for Adults
A. 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 Requirements:
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 court administration office in the county.
4. An attorney shall complete a minimum of six 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 administration 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. Continuing legal education activity completed during any reporting period in excess of the minimum of six hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only;
5. 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 five (5) year(s);
6. An attorney must maintain an office capable of receiving email, fax, and telephone calls and be able to comply with electronic filing requirements
7. An attorney must have the ability to produce typed motions and orders;
8. 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.
ii. State Jail and Third Degree Felony Case Qualification Requirements
1. An attorney must meet general requirements for misdemeanor appointments;
iii. First and Second Degree Felony Case Qualification Requirements
1. An attorney must meet the general requirements for State Jail and Third Degree Felony appointments.
2. An attorney must have a minimum four year(s) experience in criminal law;
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 of 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 corpus; or
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 County Judge.
ii. State Jail and Third Degree Felony, First and Second Degree Felony List, and Capital Case List - An attorney must be approved for each list by a majority of the judges hearing felony criminal cases.
C. Removal from Appointment List - The judges 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 hearing felony criminal cases.
D. Reinstatement to Appointment Lists
i. An attorney who was removed from the appointment list for non-completion of the required CLE hours may be immediately reinstated upon providing proof that the attorney has completed the required hours so long as the attorney otherwise meets the other qualifications under this Plan.
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 Counsel shall:
i. Notify the court within seventy-two (72) hours of the receipt of appointment;
ii. Make 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 practicable 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 court order 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 Procedure;
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 appropriate 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.
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, for felonies contact Karen Warr, Court Coordinator, via phone at 936-598-9928 or via e-mail at Karen.email@example.com. The defendant may submit felony forms to the Court Coordinator via fax at 936-591-0984 or via e-mail at firstname.lastname@example.org. The courts 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 felonies is: Judge LeAnn Kay Rafferty or Judge Charles Mitchell.
2. If the case has been filed in the trial court, the appointing authority is: Judge LeAnn Kay Rafferty or Judge Charles Mitchell.
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.
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 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 ten (10) days to prepare.
Attorney Selection Process
Attorney Selection Process for Adults (Rotation)
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 the court makes a finding of good cause on the record 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’ native language, if one is available;
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;
iii. The Court may appoint counsel who is present in the court room at the time the indigent defendant’s request for counsel is granted; or
iv. Other good cause exists for varying from the list.
B. 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.
C. Judicial Removal from Case:
i. The 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:
1. Counsel’s failure to appear at a court hearing;
2. Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
3. Current information about the defendant and the charges against the defendant indicate that another qualified attorney is more appropriate for the defendant under these rules;
4. Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;
5. The appointed counsel shows good cause for being removed, such as illness, workload, or scheduling difficulties;
6. The defendant requests an attorney, other than trial counsel, for appeal;
7. The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant; or
8. A majority of the judges trying felony criminal cases in the county may remove an attorney from consideration for appointment if, after a hearing, it is shown that the attorney submitted a claim for legal services not performed by the attorney.
ii. Appointment of Replacement Counsel - Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.
Fee and Expense Payment Process
The fee schedule adopted by the 123rd Judicial District Court and the 273rd Judicial District Court Of Shelby County, attached hereto, shall remain in effect until amended by further order. No payment shall be made until the judge approves payment after submission of an attorney fee voucher, following the final disposition of the case. If the judge disapproves the requested amount of payment, the judge shall make written finding(s) that the judge approves and each reason for approving an amount different from the requested amount.
Attorney fee vouchers must be submitted within forty-five (45) days after final disposition of the case(s).
If an itemized bill is submitted, a typewritten statement must include a description of the work performed and the amount of time spent.
All fees incurred must be reasonable and necessary for the defense and subsequent disposition of the case.
Attorneys may not charge mileage or time for travel to and from Carthage, Texas to perform legal services.
Guidelines for the Payment of Expert and Investigative Expenses and Fees:
- Procedure for Requesting Investigator and/or Expert Witness Expenses
- Appointed counsel for indigent defendants must file with the court a pretrial request for payment of investigative expenses, expert witness expenses, or both. In the discretion of the attorney, this request may be filed as an ex parte confidential request.
- Attorneys must receive written, prior court approval for all investigator and expert witness expenses. Expenses incurred, including expert and investigator fees, only will be reimbursed if the Court finds them to be reasonably necessary and reasonably incurred.
- The request for approval of expenses must state the type of investigation to be conducted or the type of expert witness to be retained, must set out specific facts that suggest the investigation will result in admissible evidence or that the services of an expert witness are reasonably necessary to assist in the preparation of a potential defense, and shall include an itemized list of anticipated expenses for each investigator, expert witness, or both. Investigators may not serve subpoenas and attorneys are encouraged to interview witnesses.
- Compensation Schedule for Expert Witnesses
- Expert witnesses will be reimbursed at the expert’s actual hourly rate, not to exceed the amount pre-approved by the Court.
- Compensation Schedule for Court-Appointed Investigators
- Expenses for investigators will be reimbursed at a rate of $45.00 per hour, plus mileage at a rate of 53 ½ cents per mile, not to exceed the amount pre-approved by the Court. Investigators may not charge mileage or time for travel to and from Carthage, Texas to perform investigative services.
- Procedure to Request Payment
- A court-appointed investigator and/or expert shall submit a typed, detailed list of services provided to the appointed counsel. The detailed list must reflect the following: (1) the type of itemized service provided; (2) the date and location of the service; and (3) the time spent providing the service rounded to the nearest tenth of an hour (6 minute increments).
- Attorneys remain responsible for approving and submitting the investigator/expert fees to the judge for payment and/or reimbursement. Investigators shall not directly submit payment requests to the judge. To receive payment, the attorney must provide the court the detailed list described in section IV(a) above, along with the Attorney Fee Voucher. No payment shall be made until the judge approves payment.
- The attorney must note on the Attorney Fee Voucher if the attorney requests a reimbursement for pre-paid expenses and/or fees, or, if the attorney requests payment be made directly to the expert and/or investigator.
- Attorney Fee Vouchers shall be submitted to the judge following the final disposition of the case in the trial court.
- If an attorney is not satisfied with the amount of compensation approved under this schedule, the attorney may appeal the judge’s decision by following the procedure set forth in Texas Code of Criminal Procedure section 26.05.
- Expenses incurred without prior court approval will be reimbursed if the expenses are reasonably necessary and reasonably incurred. Counsel should seek prior approval for such expenses whenever possible because expenses that are not reasonably necessary and reasonably incurred will be denied.
Shelby District Court Affidavit of Indigence.docx (10/31/2019 3:09:24 PM) view
Shelby District Court Attorney Application for Appointment.doc (12/10/2009 4:07:24 PM) view
Shelby District Court Attorney Fee Schedule.docx (10/31/2019 3:11:26 PM) view
Shelby District Court Attorney Fee Voucher.docx (10/31/2019 3:10:46 PM) view
Shelby District Court Magistrates Warning Form.doc (12/10/2009 4:10:50 PM) view