Smith County Court Plan
Preamble
10/10/2019

Adult Misdemeanor Indigent Defense Plan Summary

1.      Which of the following best describes the method your courts use to determine whether a defendant is indigent and entitled to have counsel appointed?

125% of the Poverty Guidelines

Note: Poverty guidelines are established annually by the United States Department of Health and Human Services

2. How many hours of continuing legal education (CLE) in criminal law/procedure do you require attorneys to receive each year to be eligible to represent indigent defendants?

8 Hours (Indicate number of hours if require the same number for all levels of cases

under your plan)

3.    If you have a range of CLE hour requirements based on the level of offense an indigent defendant is charged please indicate the number of hours required for each level of case below:

N/A

4.    Do you waive the CLE requirement for attorneys who are Board Certified in Criminal Law? Yes


5. Indicate the number of trials and/or years experience you require each attorney to have completed to be eligible for the appointments list:

Misdemeanor:

  0       Minimum number of criminal trials

    0     Minimum years of experience in the practice of criminal law

    0     No specific experience required

Please Specify _________________________________________

6.    Do you waive the experience requirement for attorneys who are Board Certified in Criminal Law? Yes

7.    Which of the following best describes the method your courts use to select attorneys to represent indigent defendants? Please check all that apply.

X Rotation System: Attorneys are selected based on the order that their names appear on lists of qualified attorneys.

 

List of attorneys approved to be on the Misd. Appt. Wheel for 2019

Kurt Noe11

Gene Caldwell

Donald Davidson

Beverly Melontree

James Williams

Madeline Porter

Richard Kuna


Prompt Magistration
11/2/2015

I.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 one of the Judges of the County Courts at Law.  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
11/2/2015

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 circumstancesthat 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
11/22/2013

In order to be eligible for appointment in Class A/B Misdemeanors an attorney must meet the following criteria:

1. Have a license to practice law in the State of Texas

QUALIFICATIONS FOR APPOINTMENT

Only attorneys who volunteer shall be considered for appointment to represent indigent

defendants in the courts of Smith County on the rotation system established by the Criminal Courts

Board. The Qualified attorneys’ list will be approved by the Criminal Courts Board and posted

outside the Smith County District Clerk’s office and the Smith County Clerk’s office on or before

January 1St and July 1st of each year. Applications for inclusion on the list must be filed with the

Counsel Coordinator for Smith County at least forty-five (45) days prior to the beginning of a

quarter.

Purpose and Scope of Standards.

The following standards are designed to provide for a systematic method ofproviding qualified

counsel to indigents in criminal cases. These standards address principles of eligibility and

certification for trial, writs of habeas corpus, revocations of probation and counsel on appeal.

Section 1: General Principles of Eligibility

The following standards shall be applied to attorney certification under any part of these

standards.

1. Eligibility.

The attorney shall be familiar with the practice and procedure of the criminal courts

of Texas and shall be a member in good standing of the State Bar of Texas and

shall be admitted pro hoc vice. Practice before a juvenile court shall be considered

as experience in criminal litigation for purpose ofthese standards. Pro bono service

of counsel shall also be considered as experience for purpose of these standards.

2. Evidentiary Matters.

The attorney shall be familiar with the Texas Rules of Evidence and shall have

knowledge of the use of expert witnesses and evidence, including, but not limited

to), psychiatric and forensic evidence.

3. Co-Counsel.

If the Court appoints co-counsel for any offense, it shall be at the discretion of the

Court as to the qualification of counsel except as provided herein.

4. Initial Training.

Within (1) year of an initial application and preliminary certification under these

standards, the attorney shall complete a minimum of (4) hours of Smith County

Council of Judges approved training in the field of criminal law and specifically

related to the practice before the criminal courts of Smith County. This course

shall be offered in September of each year.

5. Continuing Training.

To maintain annual certification, successful completion of a minimum of (8) hours

of training in State Bar of Texas and/or Smith County Council of Judges approved

training in criminal law, ethics, evidence or trial practice. This requirement is in

addition to the requirements of section 4 above. This is an annual calendar year

requirement with reporting each April by the presentation of a re-certification

affidavit presented priori to April 1 of each year. A failure to present the affidavit

shall cause an attorney to be subject to removal of those attorney for

The qualifications for appointment as Qualified counsel are those established by the

Criminal Courts Board in a separate document to be posted outside the Smith County District

Clerk’s office and the Smith County Clerk’s office at the Smith County Courthouse.

Attorneys who do not meet the qualifications for appointment may volunteer to serve as

Second Chair counsel. Second Chair counsel may volunteer to assist Qualified attorneys in order

to gain experience and meet the appointment qualifications. Second Chair attorneys may perform

any task as long as it is done under the supervision of a Qualified attorney. The Courts will make

no payment to any Second Chair counsel.

A Capital Qualified List shall be approved by the Criminal Courts Board on or before

January 1 of each year and shall be posted outside the Smith County District Clerk’s office. To be

included on that list counsel must apply for inclusion on that list by December 1 prior to the

approval of the next year’s list. Such applying attorneys must certify in their application that they

meet the capital counsel qualifications requirements of Criminal Courts Board, the First

Administrative Judicial Region, and Texas statute. Second Chair counsel shall be appointed in

capital cases where the State of Texas has filed its Notice of Intent to Seek the Death Penalty and

shall be compensated as provided by the Criminal Courts Board.

Appointed attorneys who fall to promptly and professionally follow all of the rules and

procedures adopted by the Courts may be removed from the qualified list by majority vote of the

Criminal Courts Board and may forfeit all or part of their compensation for ser-vices as determined

by the judge. Removed attorneys may reapply for approval after the expiration of one year from

the date of removal. Complaints made against appointed attorneys will be referred to the Counsel

Coordinator for investigation. All complaints will be reviewed periodically and an appointed

attorney may be removed from the qualified list by a majority vote of the Criminal Courts Board.

Before any type of removal from the Qualified attorneys list, the attorney must receive written

notice and have the opportunity to be heard by the Criminal Courts Board. Such hearing will be

closed and confidential.

Smith County Standards Relating to the Provision of

Counsel to Indigents

Adopted December ____, 2002

Purpose and Scope of Standards.

The following standards are designed to provide for a systematic method ofproviding qualified

counsel to indigents in criminal cases. These standards address principles of eligibility and

certification for trial, writs of habeas corpus, revocations of probation and counsel on appeal.

Section 1: General Principles of Eligibility

The following standards shall be applied to attorney certification under any part of these

standards.

1. Eligibility.

The attorney shall be familiar with the practice and procedure of the criminal courts

of Texas and shall be a member in good standing of the State Bar of Texas and

shall be admitted pro hoc vice. Practice before a juvenile court shall be considered

as experience in criminal litigation for purpose ofthese standards. Pro bono service

of counsel shall also be considered as experience for purpose of these standards.

2. Evidentiary Matters.

The attorney shall be familiar with the Texas Rules of Evidence and shall have

knowledge of the use of expert witnesses and evidence, including, but not limited

to), psychiatric and forensic evidence.

3. Co-Counsel.

If the Court appoints co-counsel for any offense, it shall be at the discretion of the

Court as to the qualification of counsel except as provided herein.

4. Initial Training.

Within (1) year of an initial application and preliminary certification under these

standards, the attorney shall complete a minimum of (4) hours of Smith County

Council of Judges approved training in the field of criminal law and specifically

related to the practice before the criminal courts of Smith County. This course

shall be offered in September of each year.

5. Continuing Training.

To maintain annual certification, successful completion of a minimum of (8) hours

of training in State Bar of Texas and/or Smith County Council of Judges approved

training in criminal law, ethics, evidence or trial practice. This requirement is in

addition to the requirements of section 4 above. This is an annual calendar year

requirement with reporting each April by the presentation of a re-certification

affidavit presented priori to April 1 of each year. A failure to present the affidavit

shall cause an attorney to be subject to removal of those attorney for appointment.

Section II.: Capital Offenses.

In order to serve as lead counsel in a capital offense where the State of Texas is seeking a

death sentence, an attorney must meet the following:

1. exhibit proficiency and commitment to providing quality representation to

defendants in death penalty cases,

2. have (5) years experience in criminal litigation and

3. have tried to verdict as lead counsel a minimum of five felony cases and at least

two of these cases shall be tried before a jury; or alternatively has served as lead or

co-counsel in a minimum of one capital murder trial,

4. have trial experience in the use of challenges to health or forensic expert witnesses

and presenting mitigating evidence at the penalty phase of a death penalty trial,

5. have participated in continuing legal education relating to death penalty criminal

defense. -

Section III: Capital offenses where death penalty is not sought by the State of Texas and

1st degree felonies and co-counsel for capital offenses where the State is

seeking the death penalty. (This category also includes enhanced felonies

which carry a first degree range of punishment.)

In order to be eligible for appointment in the above described offenses, an attorney must

meet the following criteria:

1. have (4) years experience in criminal litigation.

2. have tried to verdict as lead counsel or co-counsel for the defense or the

prosecution of at least (3) trials of any grade of felony. At least (2) of these trials

must be jury trials.

Section IV: Second and Third Degree Felonies (This category includes enhanced State

Jail felonies.

In order to be eligible for appointment in the above described offenses, an attorney must

meet the following criteria:

1. have at least (2) years of experience in criminal litigation

2. have tried to verdict as lead or co-counsel for the defense or the prosecution at

least (2) trials of any State Jail felonies or -A or B misdemeanors. At least (1) of

these trials must be a jury trial.

Section V: State Jail Felony and Class A/B Misdemeanors

In order to be eligible for appointment in the above described offenses, an attorney must

meet the following criteria:

1. have a license to practice law in the State of Texas

Section VI: Appellate Counsel

In order to serve as appellate counsel for capital offenses, whether or not the death penalty

has been assessed and in Pt felonies as defined in Section III, an attorney shall:

1. have (3) years of experience in criminal litigation and;

2. have filed a brief and/or argued (2) cases before the Courts of Appeal of Texas, the

Texas Supreme Court, the Texas Court of Criminal Appeals, Fifth Circuit Court of

Appeals and/or United States Supreme Court.

In all other felonies and misdemeanors, an attorney shall have (1) year experience in

appellate practice and procedure and filed a brief and/or argued a case before the Courts of Appeal

for the State of Texas, the Texas Court of Criminal Appeals, the Texas Supreme Court, Fifth

Circuit Court of Appeals and/or United States Supreme Court or shall have (2) years of general

experience in criminal litigation.

Section VII: Writ Counsel

In capital felonies where the death penalty has been assessed, appointed counsel for any

writ of habeas corpus must possess the following qualifications:

1. The attorney must have (3) years criminal litigation experience and;

2. The attorney must have filed a brief and/or argued before the Courts of Appeal of

the State of Texas, the Texas court of Criminal Appeals, the US District Court, the

Texas Supreme Court, the Fifth Circuit and/or the United States Supreme Court.

For all grades of offenses, the counsel shall be licensed to practice law in the State of Texas.

Section VIII: Revocation of’ Probation

For trials of felony revocation of probation, an attorney shall have at least (1) year of

experience in criminal litigation.

For trials of State Jail and Class A/B misdemeanor revocation of probation, an attorney

must be licensed to practice law in the State of Texas.

Section IX: Criminal Law Specialization

An attorney who has received his or her specialization in criminal law is qualified to serve

on any capital felony where the State is not seeking the death penalty and for all other grades of

felony and misdemeanor offenses. The attorney who possesses criminal law specialization shall

also be exempt from the CLE requirements set out in Section I.

Section X: Amendments

The Criminal Courts Board may approve changes as necessary to these qualifications.

Attorneys shall submit by October 15 each year the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in this county for adult criminal and juvenile delinquency cases.  The report must be made on a form prescribed by the Texas Indigent Defense commission for the prior 12 months that begins on October 1 and ends on September 30.

Prompt Appointment of Counsel
11/2/2015
IV.Appoint Counsel Promptly (Adults – County Population Less than 250,000)

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: http://smith-county.com/Courts/CountyCourt/Forms.aspx. The defendant may submit these forms to the respective Criminal Court Coordinator of each County Court at Law.

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 Presiding Administrative County Court at Law Judge

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

3. If the case has been filed in the trial court, the appointing authority is: The Trial Court Judge.

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
10/7/2010

Purpose and Scope of Standards.

The following standards are designed to provide for a systematic method ofproviding qualified

counsel to indigents in criminal cases. These standards address principles of eligibility and

certification for trial, writs of habeas corpus, revocations of probation and counsel on appeal.

Section 1: General Principles of Eligibility

The following standards shall be applied to attorney certification under any part of these

standards.

1. Eligibility.

The attorney shall be familiar with the practice and procedure of the criminal courts

of Texas and shall be a member in good standing of the State Bar of Texas and

shall be admitted pro hoc vice. Practice before a juvenile court shall be considered

as experience in criminal litigation for purpose ofthese standards. Pro bono service

of counsel shall also be considered as experience for purpose of these standards.

2. Evidentiary Matters.

The attorney shall be familiar with the Texas Rules of Evidence and shall have

knowledge of the use of expert witnesses and evidence, including, but not limited

to), psychiatric and forensic evidence.

3. Co-Counsel.

If the Court appoints co-counsel for any offense, it shall be at the discretion of the

Court as to the qualification of counsel except as provided herein.

4. Initial Training.

Within (1) year of an initial application and preliminary certification under these

standards, the attorney shall complete a minimum of (4) hours of Smith County

Council of Judges approved training in the field of criminal law and specifically

related to the practice before the criminal courts of Smith County. This course

shall be offered in September of each year.

5. Continuing Training.

To maintain annual certification, successful completion of a minimum of (8) hours

of training in State Bar of Texas and/or Smith County Council of Judges approved

training in criminal law, ethics, evidence or trial practice. This requirement is in

addition to the requirements of section 4 above. This is an annual calendar year

requirement with reporting each April by the presentation of a re-certification

affidavit presented priori to April 1 of each year. A failure to present the affidavit

shall cause an attorney to be subject to removal of those attorney for appointment.

Rotational method:  Must appoint attorneys from among next five names on appointment list in the order in which the attorneys' names appear on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order.

Fee and Expense Payment Process
10/10/2019

COMPENSATION

Court appointed counsel shall receive such reasonable compensation as established by

Standing Order of the Criminal Courts Board for Smith County, Texas.

The fee schedule adopted by formal action of the Criminal Courts Board for Smith County,

Texas shall comply with the Texas Code of Criminal Procedure Article 26.05 and all applicable

law and shall be submitted to the Smith County Commissioner's Court.

COUNTY COURTS AT LAW OF

SMITH COUNTY, TEXAS

STANDING ORDER FOR COMPENSATION OF ATTORNEY

APPOINTED TO REPRESENT INDIGENT DEFENDANTS

On the day of December, 2002 the below named County Court At Law judges with

criminal Jurisdiction, after a duly called and conducted meeting and discussion, did adopt this

schedule of fees concerning compensation of court-appointed counsel for indigent defendants and

related expenses made pursuant to Article 26.05, Texas Rules of Civil Procedure; therefore, it is

ORDERED that compensation of court-appointed counsel and related expenses, made pursuant to

a motion in the format prescribed by the appointing court, shall be made in accordance with said Schedule.

I.

MISDEMEANOR CASES

A. Plea of Guilty/no contest~ probation revocation:

1. $50.00 per hour or up to $300.00 for a plea/dismissal of a single filed case.

2. $50.00 per hour or up to $500.00 for plea/dismissal of multiple filed cases

on the same Defendant.

3. $100.00 fee on cases reduced from felony with an agreed misdemeanor

plea.

B. Trial:

1. $250.00 per day in trial with up to an additional $300.00 for trial

preparation when approved by the trial judge.

C. Appeal:

1. $600.00 fee for appeal of a single case.

2. $1,000 fee for appeal of multiple cases on a single Defendant.

NOTE: These amounts are the same whether payment is made by Smith County or

includes payment under a pre-hearing re-coupment appointment order

SMITH COUNTY SUPPLEMENTAL PLAN FOR
APPOINTMENT OF COUNSEL


Two-thirds of the judges hearing misdemeanor criminal cases having approved it, this Supplemental Plan is added to and is now a part of the Plan for Appointment of Counsel as follows:

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 reasonable 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 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.

Miscellaneous
10/9/2019
 

CRIMINAL COURTS BOARD

The Criminal Courts Board is composed of the judges of the 7th Judicial District Court,

114th Judicial District Court, 24Pt Judicial District Court, 32~ Judicial District Court, County

Court at Law, County Court at Law Number 2, and County Court at Law Number 3 of Smith

County, Texas. The Criminal Courts Board may periodically impose policies, procedures and

guidelines to implement this plan and guarantee effective representation of all indigent defendants

in Smith County, Texas who are entitled to court appointed counsel.

A Counsel Coordinator will be designated by the Criminal Courts Board. All questions,

issues, and problems must be directed to the Counsel Coordinator for resolution. The Counsel

Coordinator will also:

1. Maintain and update the list of Qualified and Second Chair attorneys

2. Investigate and track attorney qualifications

3. Manage arraignment procedures

4. Track cases and assignments to prevent duplication

5. Organize and administer waiver of indictment procedures

6. Supervise and monitor attorney fee payments

7. Receive and investigate complaints against appointed attorneys

8. Maintain the rotation schedule of appointed attorneys

9. Coordinate with the Office of Court Administration

10. Insure compliance with the policies and standards of the Task Force on Indigent

Defense

11. Assist in the County Reporting Plan and obtaining Technical Report Grants

12. Perform all other duties designated by the Criminal Courts Board.


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

SMITH COUNTY SUPPLEMENTAL PLAN FOR
APPOINTMENT OF COUNSEL


Two-thirds of the judges hearing misdemeanor criminal cases having approved it, this Supplemental Plan is added to and is now a part of the Plan for Appointment of Counsel as follows:

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 reasonable 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 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.

 

 


Plan Documents
Smith County Court Affidavit of Indigence.pdf (10/7/2016 11:49:06 AM) view
Smith County Court Attorney Application for Appointment.pdf (1/5/2010 4:10:00 PM) view
Smith County Court Attorney Fee Voucher.pdf (1/5/2010 3:55:49 PM) view
Smith County Court Certificate of Magistrate.pdf (1/5/2010 4:10:56 PM) view
Smith County Court Magistrates Warning Form.pdf (1/5/2010 4:09:22 PM) view
Smith County Court Order Appointing Attorney.pdf (1/5/2010 4:11:52 PM) view
Smith County Court Pauper's Oath Application (Spanish).pdf (1/5/2010 4:12:48 PM) view
Smith County Court Pauper's Oath Application.pdf (1/5/2010 4:12:26 PM) view