Rule 2.  Procedures for Timely Appointment of Counsel

2.01  Prompt Appearance Before a Magistrate.

(a) The magistrates of this county will inform supervisory personnel of all law enforcement agencies operating within the county that each time a person is arrested, Texas law requires the officer making the arrest and any officer who later has custody to ensure that the person is taken before a magistrate without unnecessary delay, and never more than 48 hours after arrest.

(b) The judges of this county will work with the magistrates, prosecutors, and law enforcement agencies in the county to devise appropriate procedures for meeting the time standards set forth in Rule 2.01(a).

(c)Whenever an arrested person is first brought before a magistrate, the magistrate shall record the date and time that the person was brought before the magistrate. 

(d) Each time a magistrate or a judge has reasonable cause to believe that a law enforcement officer has engaged in unnecessary delay in taking a defendant before a magistrate after arrest, the magistrate or judge will inform the law enforcement officer's supervisors. In the event of repeated incidents of unnecessary delay by a law enforcement agency or officer, the judges will initiate communications with the law enforcement agency regarding corrective measures to ensure compliance with Rule 2.01(a) and with any procedures adopted pursuant to Rule 2.01(b).

2.02 Responsibilities of the Magistrate

(a) Whenever an arrested person is first brought before a magistrate, the magistrate shall immediately perform the duties described in Article 15.17 of the Code of Criminal Procedure, including:

(1) The magistrate shall specifically inform the person arrested of the person's right to request appointment of counsel if the person cannot afford counsel.

(2) The magistrate shall specifically ask the person arrested whether the person wants to request appointment of counsel.

(3) The magistrate shall specifically inform the person of the procedures for requesting appointment of counsel.

(4) The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the time of the Article 15.17 hearing.

(5) The magistrate shall ensure that the above information and assistance are provided in a manner and using terminology and language that the arrested person can understand.

(6) If the arrested person does not speak and understand the English language or is deaf, the magistrate shall ensure that the information and assistance are provided with the assistance of an interpreter consistent with Articles 38.30 and 38.31 of the Code of Criminal Procedure.

Rule 3.  Procedures for Determining Whether a Defendant is Indigent

3.01  Determination of Indigence

         (a) 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; or

         (b) An accused who does not meet any of the standards above shall nevertheless be considered indigent if the defendant is not financially able to employ counsel 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.

3.02  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 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 standards stated in this rule shall be used as the basis for determining indigence.

3.03  Procedures for Determining Indigence

(a) As soon as possible following arrest, and in any event not later than the Article 15.17 hearing, the magistrate before whom the defendant is taken 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.

Rule 4.  Selection and Appointment of Counsel

4.01 Method of appointment.

Attorneys shall be appointed to represent indigent defendants from public  appointment lists as described below.

4.02  Public Appointments Lists

The Judges hereby establish the following public appointment lists from which counsel for indigent defendants shall be appointed:

(a) Misdemeanor List consisting of attorneys eligible for appointment in Class A and B misdemeanors.

(b) Third Degree and State Jail Felony List consisting of attorneys eligible for appointment in Third degree felonies, state jail felonies, and motions to revoke probation.

(c) First and Second Degree Felony List consisting of attorneys eligible for appointment in First and Second Degree felonies.

(d) Capital Case List consisting of attorneys eligible for appointment in capital murder felonies.

(e) Appellate List consisting of attorneys eligible for appointment to direct appeals and writs of habeas corpus.

Appointment of counsel to represent a defendant in motion to adjudicate proceedings shall be from the list appropriate for the offense(s) charged.

4.03 Attorney Qualifications.

At any time attorneys may apply to be included on one or more of the public appointment lists. To be eligible for placement on each list, attorneys must have met the following minimum qualifications.

(a) Misdemeanor List:

(1)     Currently Licensed and in good standing with the State Bar of Texas;

(2)     Practiced in the area of criminal law for at least six months;

(3)     Exhibited proficiency and commitment to providing quality representation to criminal defendants;

(4)     Exhibited professionalism and reliability when providing representation to criminal defendants;

(6)   Reside in the 121st Judicial District or maintain an office in the 121st Judicial District that is staffed by an employee of the attorney during regular business hours.

(7)   An attorney shall submit by October 15th each year a statement that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in this county for adult criminal cases and juvenile delinquency cases for the prior 12 months that begins on October 1 and ends on September 30. The report must be submitted through the online form to the Texas Indigent Defense Commission. 

(b)   Third Degree and State Jail Felony List:

(1)     Have met all qualifications for placement on the Misdemeanor List;

(2)     Have practiced in the area of criminal law for at least one year; and

(c)   First and Second Degree Felony List:

(1)     Have met all qualifications for placement on the Third Degree and State Jail Felony List;

(2)     Have practiced in the area of criminal law for at least two years;

(3)     Have tried to verdict at least two criminal jury trials as lead counsel or as second chair counsel.

(d) Capital Case Qualification Requirements:

1. Lead trial counsel must be on the list of attorneys approved by the local selection committee of this Administrative Judicial Region for appointment as lead counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

2. Second chair counsel must be on the list of attorneys approved by the local selection committee of this administrative judicial region for appointment as lead trial counsel or second chair counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

3. Appellate counsel must be on the list of attorneys approved by the local selection committee of this administrative judicial region for appointment as appellate counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

(e) Appellate List:

(1)     Have met all qualifications set forth in paragraphs (1) through (5) of the requirements for placement on the Misdemeanor List; and

(2)     Have met at least one of the following criteria:

(i) be currently board certified in criminal law by the Texas Board of Legal Specialization;

(ii) have personally authored and filed at least 3 criminal appellate briefs or post-conviction writs of  habeas corpus; 

(iii) have submitted an appellate writing sample approved by a majority of the judges;

(iv) have worked as a briefing clerk of an appellate court for a period of at least one year;

(v) need not reside in the District. 

4.04 Approval of attorneys by the Judges.

(a) In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on one or more of the felony appointment lists only if the District Judge approves the attorney's placement on each such list. In addition to meeting the objective qualifications described in Rule 4.03, an attorney may be placed on the misdemeanor appointment list only if the County Judge approves the attorney's placement on the misdemeanor list.

(b) When applications are received, the District Judge shall evaluate applicants for each felony appointment list. The judges will approve those attorneys:

(1) who meet the objective qualifications set forth in Rule 4.03 for placement on the list; and

(2) whom the judge considers to be actually competent to adequately handle cases associated with the list.

(c)  When applications are received, the County Judge shall evaluate applicants for the Misdemeanor List. The judge will approve those attorneys:

(1) who have met the objective qualifications set forth in Rule 4.03 for placement on the Misdemeanor List; and

(2) whom the judge considers to be actually competent to adequately handle misdemeanor cases.

(d) An attorney may be removed from one or more public appointment lists by the judge for the corresponding court level whenever the judge determines that the attorney no longer meets the objective qualifications for that list or is not fully competent to adequately handle the category of cases associated with that list. The judge may in his discretion remove an attorney from one or more lists, while continuing to approve the attorney for other lists.  

Rule 5.  Selection and Appointment of Counsel in Capital Felony Cases

5.01  Regional Public Defender.

(a) The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless good cause exists to appoint private counsel.

1.  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.

2.  If private counsel is appointed to a co-defendant, rather than the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures states in this Section.

(b) The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if: 

1. A conflict of interest exists;

2. The Office has insufficient resources to provided adequate representation;

3. The Office is incapable of providing representation in accordance with the rules of professional conduct;

4. Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or,

5. The Office shows other good cause for refusing appointment.

(c)  The Appointing Authority shall immediatedly contact the attorneys appointed by phone, e-mail, fax or in person and notify the attorneys of the appointment and the last known location of the defendant.

5.    5.02 Private Counsel. Whenever a capital felony case is filed and the Regional Public Defender is not appointed, the presiding judge in the district court in which the case is filed shall appoint two attorneys at the time the initial appointment is made, unless and until the state gives notice in writing that the state will not seek the death penalty.

5.     5.03 Qualifications of Lead Private Counsel.

To be assigned as lead private counsel in a death penalty case an attorney must:

         (a) Be on the list of attorneys approved by the local selection committee of the administrative judicial region for appointment in death penalty cases as provided in Article 26.052 of the Code of Criminal Procedure; or  

          (b) Be appointed in accordance with Article 26.052(b) of the Code of Criminal Procedure (Public Defender’s Office).

5.      5.04  Qualifications of Second Chair Private Counsel.

To be assigned as second chair private counsel in a death penalty case an attorney must have met the qualifications for placement on the Capital Felony List in this county as set forth in Rule 4.02(e), whether or not the attorney has ever applied for placement on that list.

5.05    Qualifications of Appellate Counsel.

If the Regional Public Defender for Capital Cases is not appointed as Appellate Counsel private counsel to be assigned must be on the list of attorneys approved by the local selection committee of the administrative judicial region for appointment in death penalty cases as provided in Article 26.052 of the Code of Criminal Procedure.

If the person making the appointment determines that a person who requests appointment of counsel is not indigent under the standards and procedures described in Rule 3, he or she will enter that finding on the person's counsel request form, cause a copy to be returned to the person,  and cause the original to be filed with the other orders in the case.

6.02  Notice of Determination that the Defendant is Indigent and Appointment of Counsel.

If the person making the appointment finds that a person who requests counsel is indigent, he or she will cause all information in the notice of appointment to be issued to the appointed counsel and to the indigent person, and to be filed with the orders in the case. Appointed counsel will be notified by at least one of the following methods: telephone, facsimile, electronic mail, in person, or other immediate means of communication.

6.03 Attorney Contact with the Defendant.

The appointed attorney shall make the reasonable  effort required under Article 26.04(j)(1) to contact the defendant by the end of the first working day after the date of the appointment, and shall have the further duty to interview the defendant as soon as practicable after the attorney is appointed.

Rule 7.  Replacement of Appointed Counsel

7.01  Attorney Request.

A lawyer may be relieved from an appointment upon satisfying the judge that the lawyer has good cause for being relieved and that the client will not be prejudiced.

7.02  Judicial Determination.

The judge presiding over a criminal case may replace appointed counsel, only with the consent of the defendant, for good cause including, without limitation:

(a) current information about the defendant and charges indicates that counsel of different qualifications is appropriate for the defendant under these rules; or

Rule 8.  Attorney Fee Schedule and Compensation of Appointed Attorneys

8.01  Fee Schedule.

The county will pay appointed counsel a fee, as approved by a judge, according to the fee schedule adopted as provided under Article 26.05(b) of the Code of Criminal Procedure. 

8.02 Judicial Determination of Attorney Compensation.

The judge presiding over the case for which the appointed attorney seeks compensation will use the following procedures to review and approve the appropriate compensation:

(a) The court may enter an order to compensate the attorney based upon the fee schedule described above.  If requested by the court, the appointed counsel must submit to the presiding judge, in a form acceptable to the judge, an itemization of the services performed and /or expenses claimed.

(b) If an attorney disputes the amount paid, the attorney may file with the presiding judge an motion requesting payment.  The presiding judge hearing a motion under this rule will either approve the amount requested or enter written findings stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.

(c) An attorney who files a motion under subparagraph (b) above and whose request for payment is disapproved or not acted on within 60 days of submission may appeal the disapproval or fialure to act by filing a motion with the presiding judge of the administrative judicial region, as provided under Article 26.05(c) of the Code of Criminal Procedure.

(d) The county will reimburse appointed attorneys for investigation and expert witness expenses incurred on behalf of an indigent client as provided under Articles 26.05(d) and 26.052(f) - (h) of the Code of Criminal Procedure.

8.03  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.