All arrestees must be brought before a magistrate within 48 hours of arrest.

Upon magistration the magistrate shall inform the defendant of his/her right to

request a court appointed attorney and ask the defendant whether he/she would

like to apply for a court appointed attorney. If the answer is “yes”, the magistrate

shall provide the defendant with an application for a court appointed attorney. If

the answer is “no”, the Defendant shall sign a “Notice of Right to Request Court

Appointed Attorney”. A record will be made on the magistration form that notes the following:

a. Magistrate informing the accused of the accused’s right to request appointment of counsel

b. Magistrate asking whether accused wants to request appointment of counsel [

c. Whether the person requested court appointed counsel

      The magistrate must ensure that reasonable assistance in completing forms necessary to request counsel

is provided to the accused.

     Any magistrate or law enforcement officer receiving the

application or notice shall forward the application or notice to the appointing

authority within 24 hours of receiving the application or notice. The Judge of the

County Court at Law is the appointing authority. If the 24 hour period falls on a

weekend or holiday, the application or notice shall be forwarded on the first

business day following the receipt of the document.

     Within the time allowed by law and after receiving a request for appointment of

counsel, the court shall make a decision of whether to appoint counsel or deny the

request within three (3) working days from the time the request for counsel is made. In

making this decision, the Court may grant any request in part, requiring the

defendant or respondent to pay any part of the court appointed attorney expense

that the court deems the defendant or respondent or the respondent’s family are

able to pay.

     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.

If the court determines that a defendant or respondent or the respondent’s family

has financial resources that enable him/her 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 or respondent to pay during the pendency of the charges or, if

convicted, as court costs the amount that it finds the defendant or respondent is

able to pay. In this event, the amount ordered to be paid by defendant or

respondent may be taxed and assessed against the defendant or respondent as

costs of court.

The Court in making the decision to appoint counsel to an indigent defendant or

respondent may consider the following factors: the defendant or respondent’s

income or spousal income that is available to the defendant or respondent, assets,

property owned, outstanding obligations, necessary expenses, the number and age

of dependents, the defendant’s or respondent’s ability to obtain a loan, and

whether the defendant or respondent is eligible to receive government assistance

at the time the application is made.

Not withstanding the income or assets listed on the affidavit of indigency, the Court

will presume indigence if the defendant has not made bail 5 days or later after arrest.

The Court may provide a financial form to any defendant or respondent to be

completed and the contents verified by the defendant or respondent. Answers

such as “n/a” or similar responses to financial questions may be deemed to render

the entire request incomplete if the Judge determines that such response(s) fails to

give the court sufficient information to render a decision on the issue of

indigency.

The above described form shall be made available for defendants in the Bastrop

County Jail, Bastrop County Court at Law Office, the offices of the 21st and 335th

District Judges, the Bastrop County District Clerk’s Office and the Bastrop

County Clerk’s Office. The form shall be made available for respondent’s in the

Juvenile Probation Office, Bastrop County Court at Law Office, and the Bastrop

County District Clerk’s Office.

A defendant or respondent receiving an appointed attorney is presumed to remain

indigent during the proceedings. It is the duty of the defendant or respondent, the

appointed attorney or any officer of the court to inform the court if he becomes

aware of information that the court erred in determining the defendant or

respondent to be indigent or that circumstances have materially changed so as to

render the defendant or respondent able to pay for counsel. In the event the court

finds the defendant or respondent or the respondent’s family able to pay for

his/her own defense, the court may make further orders as necessary

Upon entry of a final order or judgment, the court appointed counsel is

discharged. Any party electing to appeal must re-apply for court appointed

appellant counsel.

 

Procedures and Financial Standards for Determining Whether a
Defendant is Indigent
 
3.01  Definitions.  As used in this rule:
   
(a) “Net household income” means all income of the defendant and spousal
income actually available to the defendant. Such income shall include
take-home wages and salary (gross income earned minus those deductions
required by law or as a condition of employment); net self employment
income (gross income minus business expenses, and those deductions
required by law or as a condition of operating the business); regular payments
from a governmental income maintenance program, alimony, child support,
public or private pensions, or annuities; and income from dividends, interest,
rents, royalties, or periodic receipts from estates or trusts.  Seasonal or
temporary income shall be considered on an annualized basis, averaged
together with periods in which the defendant has no income or lesser income.
 
(b) “Non-exempt assets and property” means cash in hand, stocks and bonds, accounts at financial institutions, and equity in real or personal property that can be readily converted to cash, other than assets and property exempt from
attachment under state law.  
 
(c) “Household” means all individuals who are actually dependent on the
defendant for financial support.
 
(d) “The cost of obtaining competent private legal representation” includes
the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.

3.02  Financial Standards for Determining Indigence.

The financial standards set forth below shall be used to determine whether a defendant is indigent and shall be applied equally to each defendant in the county.
 
  (a) A defendant is considered indigent if:
 
    (1) The defendant’s net household income does not exceed 125% of
    the Poverty Guidelines as established and revised annually by the United States Department of Health and Human Services and published in the Federal Register;  and 
 
    (2) The value of the non-exempt assets and property owned by the
    defendant:
 
        (i) does not exceed $2,500.00;
 
        (ii) does not exceed $5,000.00 in the case of a defendant whose
        household includes a person who is age 60 or over, disabled, or
        institutionalized; or
 
        (iii) does not exceed double the estimated cost of obtaining
        competent private legal representation on the offense(s) with
        which the defendant is charged.
 
(b) A defendant is considered indigent if, at the time of requesting appointed
counsel, the defendant or the defendant’s dependents have been determined
to be eligible to receive food stamps, Medicaid, Temporary Assistance for
Needy Families, Supplemental Security Income, or public housing.
 
(c) A defendant is considered indigent if the defendant:  
        
    (1) Is currently serving a sentence in a correctional institution, is
    currently held in custody, is currently residing in a public mental
    health facility, or is the subject of a proceeding in which admission or
    commitment to such a mental health facility is sought; and
 
    (2) Has no non-exempt assets or property in excess of the amounts
    specified in Rule 3.02(a)(2).
 
(d) A defendant who does not meet any of the financial standards above shall
nevertheless be determined indigent if the defendant is otherwise unable to
retain private counsel without substantial hardship to the defendant or the
defendant’s dependents, taking into account the nature of the criminal
charge(s), the anticipated complexity of the defense, the estimated cost of
obtaining competent private legal representation for the matter charged, and
the amount needed for the support of the defendant and the defendant’s
dependents.
 
3.03  Factors Not to be Considered.
 
(a) A defendant’s posting of bail or ability to post bail may not be considered
in determining whether the defendant is indigent.  Even when a defendant has posted bail, the defendant’s financial circumstances are measured by the financial standards stated in this rule.
 
(b) The resources available to friends or relatives of the defendant may not be
considered in determining whether the defendant is indigent.  Only the
defendant’s financial circumstances as measured by the financial standards
stated in this rule shall be used as the basis for determining indigence.  
 
3.04  Procedures for Determining Indigence.
 
(a) As soon as possible following arrest, and in any event not later than the
Article 15.17 hearing, [the person or agency designated in this rule by the
judges] shall provide each arrested person who wants to request appointment
of counsel with a form approved by the judges on which the arrested person
will provide under oath the necessary information concerning the person’s
financial resources and will indicate that the person requests appointment of
counsel.  The magistrate shall provide the arrested person reasonable assistance in completing the form.
 
(b) The form requesting appointment of counsel and containing the
information concerning the arrested person’s financial resources will be
transmitted to the appointing judge or person(s) designated by the judges to
appoint counsel in accordance with Rules 2.03 and 4.06.
                                             
(c) The appointing judge or person(s) designated by the judges to appoint
counsel will determine whether the person meets the financial standards for
indigence in Rule 3.02.  The determination will be recorded on the form
requesting appointment of counsel and the form will be filed with the other
orders in the case.

(d) The arrested person may be required by the magistrate, the appointing
judge, or the judge presiding over the case to respond to examination
regarding the person’s financial resources.
 
(e) A written or oral statement elicited under this article or evidence derived
from the statement may not be used for any purpose, except to determine the
defendant’s indigence or to impeach the direct testimony of the defendant
regarding the defendant’s indigence.
 
(f) A defendant determined to be indigent is presumed to remain indigent for
the remainder of the case unless a material change in the defendant’s
financial circumstances occurs.  
 
(g) A defendant’s status as indigent or not indigent may be reviewed in a
formal hearing at any stage of a court proceeding based on evidence of a
material change in the defendant’s financial circumstances.  A defendant’s
status as indigent or not indigent also may be reviewed in a formal hearing at
any stage of a court proceeding based on additional information regarding
financial circumstances, subject to the presumption.  If a defendant
previously determined to be indigent subsequently is determined not to be
indigent, the attorney shall be compensated by the county in accordance with
these Rules for time reasonably expended on the case.

3.05  Payment by Defendant.
A court that finds that a criminal defendant has financial resources to offset, in part or in whole, the costs of legal services provided under these Rules may order the defendant to pay the county that portion of the costs of legal services provided that it finds on the record that the defendant is able to pay.

All attorneys who desire to be appointed to represent criminal defendants

hereinafter called “defendant” and juvenile respondents hereinafter called

“respondent” must apply to the judge of the Bastrop County Court at Law for

consideration to be listed on the Master List of attorneys eligible for consideration

on the court appointed attorney list. All attorneys to be considered for

appointment to represent indigent defendants or respondents must be licensed to

practice law by the State Bar of Texas.

To ensure that indigents receive experienced counsel, all attorneys desiring to be

appointed to represent defendants and respondents must have practiced law in the

State of Texas for at least 2 years and actively practiced in the Bastrop County

Court at Law for at least one year. Provided, however, that any attorney who has

been regularly accepting court appointments in the Bastrop County Court at Law

prior to June 1, 2001, shall be deemed to have met the requirements of this

paragraph. All attorneys must complete a minimum of six hours of continuing

legal education in criminal law if accepting misdemeanor appointments and a

minimum of six hours of continuing legal education in juvenile law if accepting

juvenile appointments. Proof of completion of legal education must be provided

to the appointing authority on or before December 20th of each calendar year

beginning with the calendar year of 2004.

To guarantee the presence of attorneys to adequately represent indigent

defendants and respondents, no attorney may be accepted onto the court

appointed attorney list unless said attorney commits to attend and does attend at

least 75% of all the Bastrop County Court at Law designated general criminal and

juvenile dockets. The Court for good cause may excuse an attorney from such

attendance on any docket. The Court may remove any attorney who fails to meet

this attendance requirement. Appointment to cases other than criminal and

juvenile cases do not follow this requirement.

In the event that an appointment is made in open court, any attorney who is next

on the list to be appointed but not present when the appointment is made, shall be

skipped.

All attorneys representing defendants and respondents shall comply with all

provisions of law regarding representing said clients, including but not limited to

the timely meeting with clients.

The attorney’s application must include the attorney’s name, address, business

phone, fax, cell phone number (if any), level of experience, areas of law for which

the attorney seeks appointment, and the positive commitment by the attorney to

attend at least 75% of all the Bastrop County Court at Law designated general

criminal or juvenile dockets.

An attorney shall submit by October 15^th 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. 

     Within the time allowed by law and after receiving a request for appointment of

counsel, the court shall make a decision of whether to appoint counsel or deny the

request within three (3) working days of receiving the request for counsel. In

making this decision, the Court may grant any request in part, requiring the

defendant or respondent to pay any part of the court appointed attorney expense

that the court deems the defendant or respondent or the respondent’s family are

able to pay.

     Notwithstanding any other provision of this section, if an indigent defendant is

released from custody prior to the appointment of counsel under this section,

appointment of counsel is not required until the defendant’s first court appearance

or when adversarial judicial proceedings are initiated, whichever comes first.

This provision only applies to criminal defendants.

Persons appearing in court without counsel will be advised of the right to counsel and procedures for obtaining counsel.

      Upon being appointed to represent a client, the attorney so appointed must make

his or her best efforts to contact the client within one working day of receiving

notice of appointment to notify said client of representation. Thereafter, the

attorney must use his or her best efforts to adequately meet with the client before

formal proceedings and must comply with all provisions of law regarding

representation of indigent defendants and respondents and of the rules regarding

representation of clients in general.

     If an indigent defendant is arrested in another county based on this county’s warrant,

counsel will be appointed within 3 working day(s) of this county’s receipt of the request for counsel.

(1 working day for counties with a population of 250,000 or more; 3 working days for counties with a

population under 250,0000).

     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. 

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 County Clerk’s Office, Misdemeanor Division.  The defendant may submit these forms to: the

Court Administrator in the County Court at Law.  The court will rule on all requests for counsel submitted in

this manner.

There shall be an enrollment period for attorneys to apply to be placed on the

court appointed attorney list. An attorney may apply at any time but may not be

placed on the approved list except on the following dates: January 1, April 1,

July 1, or October 1 of any given year.

The Judge of the Bastrop County Court may remove an attorney from the

approved list at any time without prior notice if the Judge of the Bastrop County

Court at law believes that the attorney is not complying with the rules set out

herein or not adequately representing the client. The attorney may then request a

hearing before said judge within 20 days of receiving notice of removal from the

approved list.

The court granting a request for appointment of counsel shall appoint counsel

from a public appointment list. The court, based on the exigencies of a particular

case, may appoint more than one attorney to a case. The list shall be called the

Bastrop County Court at Law Court Appointed Attorney List. Each list may be

further divided into sub-lists based on types of cases. For instance, the list may

include separate lists for adult criminal, juvenile, Child Protective Services,

probate and Guardianship cases, etc.

The attorneys shall be listed by date that the attorney was accepted onto the list.

The court making the appointment shall make appointments from among the next

five names on the list in the order in which the attorney’s names appear on the

list, unless the court determines that good cause exists to appoint another

attorney. 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.

An Attorney may be removed from the appointment list if the attorney:

1. has twice or more failed to contact or interview clients in a timely manner

as required by Article 26.04(j)(1), Code of Criminal Procedure;

2. has submitted a claim for legal services not performed as specified in

Article 26.05(e), Code of Criminal Procedure;

3. fails to maintain compliance with each of the appointment guidelines;

4. has been found by a court to have provided ineffective assistance of

counsel;

5. has violated a rule of professional responsibility;

6. has been convicted of or received a deferred adjudication for a felony

offense or criminal involving moral turpitude;

7. is under indictment or being formally charged with a felony offense or a

criminal involving moral turpitude; or

8. has intentionally misrepresented statements on the application for the

appointment list.

An attorney may be removed from the appointment list for another stated good cause.

22. If a judge/member of the juvenile board believes that an attorney has violated any

of the provisions listed in the paragraph above, the judge/juvenile board member

may refer an attorney to the board of judges/juvenile board for removal from the

appointment list. The referral must be in writing and shall clearly state the

grounds that form the basis of the referral. No disciplinary action with respect to

the attorney being retained or removed from the appointment list may be made

without such a referral.

23. Upon receiving an attorney referral, the board of judges/juvenile board shall

notify the attorney in writing of the referral and inform the attorney of the

grounds that form the basis of the referral. The notice shall also inform the

attorney of the time and place the board of judges/juvenile board will meet to

discuss the referral and give the attorney an opportunity to respond to the referral

in writing or in person or both.

24. After the board of judges/juvenile board meets and gives the attorney an

opportunity to be heard, the board of judges/juvenile board shall determine

whether the attorney should:

1. Remain on the appointment list at the same level;

2. Removed to an appointment list for indigent defendants charges with less

serious offenses; or

3. Be removed from appointment list altogether.

25. The attorney may be removed from the appointment list or moved to an

appointment list for indigent defendants charged with less serious offenses by a

majority vote of the judges/juvenile board members present. In addition, the

majority of the judges/juvenile board members may also vote to require the

attorney to take other rehabilitative measures. Removals from any list may be

probated. For removal or probated removals, the judges/juvenile board members

ordering the removal may require the completing of rehabilitative measures as a

condition of probation or reapplication. An order of removal should state in the

order the earliest date at which the attorney may apply for reinstatement. An

attorney who was removed from an appointment list under “Grounds for

Removal” number 7 or 8 shall be immediately reinstated upon providing proof

that the charges were dismissed or that the attorney was acquitted, unless other

grounds for removal exist against the attorney that would prohibit reinstatement.

The decision of the board of judges/juvenile board is final and may not be

appealed. An attorney who chooses to appeal the trial court’s disapproval of the

requested attorney’s fees shall file a motion with the Presiding Judge of the

Administrative Judicial Region within twenty(20) days of the trial court’s signing

of an order disapproving the requested court appointed attorney’s fee.

The appealing attorney shall set forth in his motion the following information:

1. The cause number, style and caption of the case;

2. The type and classification of the offense;

3. The date that the attorney was appointed;

4. The date on which the case was disposed;

5. Whether the case was disposed of by dismissal, a plea, a bench trial, or a

jury trial;

6. The date and the length of each court appearance within the nearest onetenth

of an hour, if the attorney is requesting to be compensated based

upon an hourly fee;

7. The date of each office conference or jail conference and the time spent

within the nearest one-tenth of an hour;

8. A copy of any itemization submitted to the trial court for the purpose of

payment including a statement of each date a service was rendered, the

type of service rendered, the time expended in the rendering of said

service, the expenses incurred, and a statement explaining any attached

vendor’s invoice or expert’s services invoice;

9. Any factors that required unusual effort on the attorney’s part to overcome

in the representation of the defendant including but not limited to: need

for an interpreter, uncharged crimes and Penal Code Sec. 12.45 issues,

multiple defendants, etc.;

10. The date that the fee order the subject of the motion was signed;

11. A detailed statement by the attorney explaining how the trial court’s order

disapproving the requested court appointment attorney’s fee deviated from

the county’s approved fee schedule adopted under the Texas Fair Defense

Act.

The appealing attorney shall attach the following documents to the motion:

1. A copy fo the trial court’s order disapproving the requested court

appointed attorney’s fee, if any, and

2. A copy of the county’s attorney fee schedule adopted pursuant to the

Texas Fair Defense Act.

26. The appealing attorney shall file the original of the motion with the clerk of the

court in which the case is pending, and shall file a certified copy of the motion

with the Presiding Judge of the Administrative Judicial Region and with the trial

court. The Presiding Judge of the Administrative Judicial Region shall abate any

ruling on the motion for a period of not less than ten (10) days from the filing of

the motion pending an opportunity for further review by the trial court. After

receiving the motion, the trial court may enter a revised payment order within the

ten (10) day period following the filing of the motion. The trial court shall file a

copy of the revised payment order with the Presiding Judge of the Administrative

Judicial Region. If a revised payment order is entered resolving the dispute to the

satisfaction of the appealing attorney, the attorney shall, within five (5) days of

the signing of the trial court’s revised payment order, file with the Presiding

Judge of the Administrative Judicial Region and the trial court a notice stating

that the matter remains subject to contest. The attorney shall attach a copy of the

trial court’s revised payment order to said notice. The trial court shall, within five

(5) days of the filing of the notice of contest, file written findings that set forth in

detail the reason(s) for disapproving the requested attorney’s fee. The findings

should substantially comply with the form attached as Appendix A. If the trial

Court does not enter a revised payment order, the trial court shall, within five (5)

days of the filing of the motion, file written findings that set forth in detail the

reason(s) for disapproving the requested attorney’s fee. The findings should

substantially comply with the form attached as Appendix A. If the Presiding

Judge of the Administrative Judicial Region has not received notice fo a

resolution of the appeal prior to the expiration of ten (10) days from the filing of

the motion, the Presiding Judge shall rule on the motion in accordance with the

provision of 26.05(c), Texas Code of Criminal Procedure. The Presiding Judge

shall sign ana order that substantially conforms to the form order attached as

Appendix B.

Payments shall be in accordance with a schedule of fees adopted by the judges. No payment shall be made until judge approves payment after submission of attorney fee voucher. If the judge disapproves the requested amount of payment, the judge shall make written findings stating the amount that the judge approves and each reason for approving an amount different from the requested amount.

Expenses incurred without prior court approval shall be reimbursed if expenses are reasonably necessary and reasonably incurred. Prior approval should be sought if possible. Expenses deemed unnecessary or unreasonable will not be approved.

 

 

Bastrop County Court Affidavit of Indigence.wpd (12/21/2009 11:43:02 AM) view
Bastrop County Court Attorney Application for Appointment.frm (12/21/2009 11:44:47 AM) view
Bastrop County Court Attorney Fee Schedule.docx (11/1/2010 5:00:06 PM) view
Bastrop County Court Attorney Fee Voucher.wpd (12/21/2009 11:53:50 AM) view
Bastrop County Court Waiver of Counsel.wpd (12/21/2009 11:52:03 AM) view