Bosque, Comanche and Hamilton District Court and County Court Plan
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 the appropriate 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
Determination of Indigence for Adults-Primary
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 any of the following conditions or factors are present:
1. At the time of requesting appointed counsel, the accused or accused’s dependents are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing;
2. The accused’s net household income does not exceed 125% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register; or
3. The accused is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought.
ii. An accused who does not meet any of the standards above shall nevertheless be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the accused’s dependents. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:
1. the nature of the criminal charge(s),
2. anticipated complexity of the defense,
3. the estimated cost of obtaining competent private legal representation for the matter(s) charged;
4. the amount needed for the support of the accused and the accused’s dependents;
5. accused’s income,
6. source of income,
7. assets and property owned,
8. outstanding obligations,
9. necessary expenses,
10. the number and ages of dependents, and
11. spousal income that is available to the accused.
iii. Factors NOT to be considered in determining indigence:
1. The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.
2. The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.
iv. Only the accused's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
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.
Minimum Attorney Qualifications
A. Appellate list:
Attorney has competently handled numerous appeals in the past as retained or appointed counsel; or Attorney has competently tried numerous cases on the next succeeding list for the past year as retained or appointed counsel, and
Attorney has demonstrated mastery of substantive criminal law, procedure and evidence and appellate procedures through continuing legal education.
B. 1st and 2nd Degree Felony list:
Attorney has competently tried numerous similar cases in the past as retained or appointed counsel; or Attorney has competently tried numerous cases on the next succeeding list for the past year as retained or appointed counsel, and
Attorney has demonstrated mastery of substantive criminal law, procedure and evidence through continuing legal education and in the courtroom.
C. 3rd Degree Felony, State Jail Felony and Felony Motion to Revoke or Motion to Proceed list:
Attorney has competently tried numerous similar cases in the past as retained or appointed counsel; or Attorney has competently tried numerous cases on the next succeeding list for at least the past six months as retained or appointed counsel.
The judges hearing misdemeanor and felony criminal cases, and a majority of the Juvenile Board having approved it, the following amendment to the Plan for Appointment of Counsel is adopted and supersedes any previous continuing legal education requirements of the plan as follows:
MINIMUM CONTINUING LEGAL EDUCATION REQUIREMENTS
Appointment in Criminal Cases. An attorney who meets the requirements of this rule may be appointed to represent an indigent person arrested for or charged with a crime, if the attorney is otherwise eligible to be appointed under the Appointment of Counsel Plan. Attorneys appointed to felony cases must be approved by a majority of
judges trying felony cases. Attorneys appointed to misdemeanor cases
must be approved by a majority of judges trying misdemeanor cases.
An attorney may be appointed under this rule only if the attorney:
(1) Completes a minimum of six hours of continuing legal education pertaining to criminal law during each 12 month reporting period. The first reporting period will begin on April 27, 2003, and then on the first day of each reporting period thereafter. Continuing legal education may include activities accredited under Section 4, Article XI, State Bar Rules, self-study, teaching at an accredited continuing legal education activity, attendance at a law school class or legal research-based writing; or
(2) Is currently certified in criminal law by the Texas Board of Legal Specialization.
Appointment in Juvenile Cases. An attorney who meets the requirements of his rule may be appointed to represent an indigent juvenile detained for or accused of engaging in deliquent conduct or conduct indicating a need for supervision, if the attorney is otherwise eligible to be appointed under the Appointment of Counsel Plan.
An attorney may be appointed under this rule only if the attorney:
(1) Completes a minimum of six hours of cointinuing legal education pertaining to juvenile law during each 12 month reporting period. The first reporting period will begin on April 27, 2003, and then on the first day of each reporting period thereafter. Continuing legal education may include activities accredited under Section 4, Article XII, State Bar Rules, self-study, teaching at an accredited continuing legal education activity, attendance at a law school class or legal research-based writing; or
(2) Is currently certified in juvenile law by the Texas Board of Legal Specialization.
(a) Continuing legal education activity completed within a one-year period immediately preceding an attorney's initial reporting period may be used to meet the educational requirements for the initial year.
(b) Continuing legal education activity completed during any reporting period in excess of the minimum six hour requirement for such period may be applied to the following period's requirement. The carryover provision applies to one year only.
(c) To be included on the appointment list, each attorney must annually submit an affidavit to the county detailing the criminal and/or juvenile continuing legal education activities completed in the prior year.
Alternatively, an attorney may annually submit documentation showng the attorney is currently certified as a specialist in criminal and/or juvenile law.
If no attorney who meets these continuing legal education or board certification requirements is available by the time an attorney must be appointed in a case, another attorney may be appointed. The person making an appointment shall give priority to an attorney with experience in criminal or juvenile law, respectively.
Practice Time Reporting Requirement
An attorney appointed under this plan and/or the juvenile board plan shall, not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to each county in which the attorney was appointed, information for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in that county under this plan for adult criminal cases and under the juvenile board plan for juvenile delinquency cases.
Approval for Appointment Lists
Misdemeanor List – An attorney must be approved by the presiding Statutory or Constitutional County Court Judge hearing criminal cases.
State Jail and Third Degree Felony, First and Second Degree Felony List, Capital Case List, and Appeal List - An attorney must be approved for each list by the District Court Judge hearing criminal cases.
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 the judge or a majority of the judges hearing cases at the level of appointment.
Reinstatement to Appointment Lists
- 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.
- 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.
- 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.
Prompt Appointment of Counsel
IV. Appoint Counsel Promptly
A. Prompt Appointment of Counsel
i. Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel. Working day means Monday through Friday, excluding official state holidays. Counsel must be appointed whether or not a case has been filed in the trial court.
ii. If the defendant is released from custody prior to the appointment of counsel, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.
iii. If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within three working days of this county’s receipt of the request for counsel.
iv. If a defendant is arrested in this county based on another county’s warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county’s custody.
v. If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/ or from the District or County Clerk of the County in which the charge is pending, or the Court Coordinator of the Court in which the charge is pending. The defendant may submit these forms to the Court Coordinator of the Court in which the charge is pending.
The court will rule on all requests for counsel submitted in this manner.
vi. Appointment Authority
1. If no case has been filed in the trial court, the appointing authority for misdemeanors is the Statutory or Constitutional County Court Judge.
2. If no case has been filed in the trial court, the appointing authority for felonies is the District Judge.
3. If the case has been filed in the trial court, the appointing authority is the judge of the court in which the charge is pending.
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
Primary Appointment Plan
The appointment will be made, if possible, on a rotation system from the list of attorneys who have applied for and are qualified to accept appointments to defend persons with that type of charge.
Attorneys shall be appointed from among the next five names on the appointment list. An attorney who is not appointed in the order in which his name appears on the list shall remain next in the order on the list.
For capital offenses the appointment will be made, if possible, from the attorneys practicing in this judicial district who are on the list of attorneys maintained by the Third Administrative Region, as qualified counsel in capital cases.
Four local lists will be complied in each county: 1) Appellate; 2) 1st and 2nd Degree Felony; 3) 3rd Degree Felony, State Jail Felony and Felony Motions to Revoke or to Proceed; and 4) Misdemeanor.
The appellate list for each county will be compiled by the District Judge and County Judge for that county. The two felony lists for each county will be compiled by the District Judge. The misdemeanor list for each county will be compiled by the County Judge for that county.
The lists will be filed with the clerk of the applicable court and may be modified by filing an updated list at any time by the judge or judges as above provided. The lists will be reviewed periodically, but at least on six month intervals.
Alternative Appointment Plan
Due to the rural nature of Bosque, Comanche and Hamilton Counties, the limited number of attorneys available for appointments and the need to appoint an attorney other than those who have applied for consideration under the previous plan (e.g. no attorney has applied for appointment, conflicts of interests or multiple co-defendants) an alternative appointment plan is adopted.
Four local lists will again be provided and appointed as set forth above.
Any attorney who is not on the primary list and who regularly practices in that court representing retained clients on similar charges will be included on the alternative list.
Appointments from this list will also be by rotation, from the next five names on the list. An attorney who is not appointed in the order in which his name apears on the list shall remain next in the order on the list.
The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases in which the death penalty is available unless good cause exists to appoint private counsel. 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.
Fee and Expense Payment Process
Fee and Expense Payment Process for Adults
A. Court appointed counsel shall be compensated for all reasonable and appropriate services rendered in representing the accused. Compensation shall be reasonable for time and effort expended and will be in accordance with a fee schedule adopted and approved by a majority of the judges hearing criminal cases in the county.
B. Payment Process: No payment of attorney’s fees will be made other than in accordance with the rules set forth below.
i. An appointed attorney shall fill out and submit a fee voucher to the court for services rendered.
ii. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.
1. If a judge disapproves a request for compensation, the judge shall make written findings, stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.
2. An attorney whose request for payment is disapproved or is not otherwise acted on by the 60th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of this administrative judicial region.
C. Payment of Expenses:
i. Court appointed counsel will be reimbursed for reasonable and necessary expenses incurred, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior approval shall be paid according to the procedures set forth below. Whenever possible prior court approval should be obtained before expenses are incurred.
ii. Procedure With Prior Court Approval:
1. 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 the below, as applicable:
a. The type of investigation to be conducted or the type of expert to be retained;
b. 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
c. An itemized list of anticipated expenses for each investigation and/or each expert.
2. 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:
a. State the reasons for the denial in writing;
b. Attach the denial to the confidential request; and
c. Submit the request and denial as a sealed exhibit to the record.
iii. 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.
Bosque Comanche Hamilton District and County Court Application for Appointed Counsel and Affidavit of Indigence.pdf (10/23/2015 8:16:18 AM) view
Bosque Comanche Hamilton District and County Court Attorney Fee Schedule.pdf (10/24/2017 1:54:06 PM) view
Bosque Comanche Hamilton District and County Court Attorney Fee Voucher.doc (7/9/2010 1:35:13 PM) view
Bosque Comanche Hamilton District and County Court Magistrate’s Warning Form.doc (7/9/2010 1:35:30 PM) view