Determination of Indigence for Adults

A.    Definitions, as used in this rule:

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

                              ii.            “Net household income” means all income of the accused and spousal income actually available to the accused. Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); net self-employment income (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the accused has no income or lesser income.

                            iii.            “Household” means all individuals who are actually dependent on the accused for financial support.

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

B.     Eligibility for Appointment

                                i.            An accused is presumed indigent if the accused's net household income does not exceed 200% of the Federal Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register.

                              ii.            An accused who does not meet any of the standards above shall nevertheless be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the accused’s dependents. In considering if obtaining private counsel will create a substantial hardship, the judge shall consider:

(1) the accused person=s income, (2) the source of the accused person=s income, (3) the assets and property owned by the accused person, (4) the accused person=s outstanding obligations, expenses and debts, (5) the number and ages of accused person=s children and dependants, (6) assets and income of the accused person=s household if that is available to him, and (7) any other relevant factors or extenuating circumstances of the accused person.

                            iii.            The judge may not consider whether the accused person has posted of is capable of posting bail except to the extent that it reflects the accused person=s financial circumstances as measured by these listed factors.

C.     Indigence Proceedings:

                                i.            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.

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

1.      Determining if accused is (or is not) indigent; or

2.      Impeaching direct testimony of accused regarding the accused’s indigence.

                            iii.            A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.

                            iv.            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.

1.      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:

a.       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

b.      Additional information regarding the accused’s financial circumstances that shows that the accused does not meet any of the standards for indigence contained in these rules.

2.      If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.  

                              v.            If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.

All attorneys licensed to practice law and who are a member in good standing with the State Bar of Texas are eligible to apply for appointment.

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 October 1 and ends on September 30.  The report must be submitted through the online form to the Texas Indigent Defense Commission.

 

 

  Applicants must meet the following minimum qualifications to be considered:

A.   An attorney shall complete a minimum of 6 hours of CLE in the area of criminal law and procedure each year. All attorneys on the appointment list must file a certificate with the court 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 6 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only.

B.   An attorney shall reside in Shelby County or maintain his/her principle office in Shelby County or a city of an adjacent county.

C.    An attorney shall have a secretary, receptionist, answering service or regularly monitored answering machine.

D.   An attorney shall have a functioning facsimile machine or an e-mail address, which is available at all times.

E.   An attorney shall have the ability to produce typed motions and orders.

F.    An attorney shall have on file with the judges a written request for the appointment to indigent accused persons that agrees to abide by all requirements and terms stated herein.

G.   An attorney shall promptly notify the judges of any changes to the information contained in the written request.

H.   An attorney shall promptly notify the judges of any matter that would disqualify such attorney from receiving appointments under these requirements and terms

I.      An attorney shall personally contact the accused person within the first working day after receiving notice of appointment and personally interview the accused person as soon as practical after appointment.

J.    An attorney shall represent the accused person until the case is disposed of, the attorney is replaced by retained counsel, or permitted to withdraw by the judge presiding over the case.

K.   Only attorneys approved to provide representation in capital cases will be appointed to those  cases where an accused person is charge with or indicted for capital murder.

L.    The judges reserve the right to appoint attorneys that are not on the list of qualified counsel  for good cause.

M.   The judges may remove an attorney from the list of qualified counsel for failing to abide by these requirements and terms or for good cause.

N.   Emergency Appointment: If no attorney who meets the continuing legal education or board certification requirements is available by the time an attorney must be appointed in the case, another attorney shall be appointed. The person making the appointment shall give priority to an attorney with experience in criminal law or juvenile law, respectively.

O.   Attorneys must be approved by the judge (or judges) to be placed on the appointment list.

                                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 3 working days of this county’s receipt of the request for counsel.

iv.     If a defendant is arrested in this county based on another county’s warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county’s custody.

v. If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/or from the Shelby County Judge's Office, 200 San Augustine ST, Box 6, Center, TX 75935. The defendant may submit these forms to the Shelby County Judge's Office, 200 San Augustine ST, Box 6, Center, TX 75935 or to judgeadmin@co.shelby.tx.us.  The court will rule on all requests for counsel submitted in this manner.

The fee schedule adopted by the County Court At Law and 123^rd District Courts 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. If the judge disapproves the requested amount of payment, the judge shall make written findings that the judge approves and each reason for approving an amount different from the requested amount.

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.

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.

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.

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.

Articles 26.05(d), 26.052(f), (9) & (h), Code of Criminal Procedure