Terry District Court and County Court Plan
To implement the Texas Fair Defense Act (FDA, Acts 2001, 776 Leg.), the following Local Rules of Administration are adopted under Texas Local Government Code § 74.093, to be effective immediately upon adoption:
Rule 1. Applicability
1.01 These rules will govern criminal procedures in all justice, county and district courts in this County, notwithstanding any other local rule to the contrary.
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.
(7) If a magistrate has cause to believe that a person is not mentally competent to decide whether to request counsel, the magistrate will enter a request for counsel on the person's behalf. The magistrate shall record this request for counsel in a way that alerts the person making the appointment that counsel competent to represent mentally ill defendants should be appointed.
(b) In each case in which an arrested person is taken before a magistrate for an Article 15.17 hearing, the magistrate will make a written record documenting:
(1) that the magistrate informed the person of the person's right to request appointment of counsel;
(2) that the magistrate asked the person whether the person wanted to request appointment of counsel; and
(3) whether the person requested appointment of counsel.
(c) The record required under Rule 2.02 may be combined on the same form used to record the arrested person's request for appointment of counsel and to transmit that request to the person making the appointment.
(d) The records required under this Rule shall be maintained for the same period required for all official records of criminal court proceedings.
2.03 Transmittal of Request for Appointed Counsel.
If the person arrested requests appointment of counsel and has completed the necessary forms, the magistrate shall transmit or cause to be transmitted to the appointing judge the forms requesting appointment of counsel. The forms requesting appointment of counsel shall be transmitted without unnecessary delay and so that the person making the appointment receives the forms no later than 24 hours after the request is made. If the person arrested does not request appointment of counsel, the form evidencing that fact shall be transmitted to the appointing judge in due course.
2.03a Persons Arrested on Out-of-County Warrants
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
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.
(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 in accordance with Rules 2.03 and 4.05.
(c) The appointing judge will determine whether the person is indigent. 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 appointing judge 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.
3.04 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 this Part may order the defendant to pay the county that portion of the costs of legal services provided that it finds that the defendant is able to pay.
Minimum Attorney Qualifications
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;
(5) An attorney shall complete a minimum of 6 hours of CLE pertaining
to criminal law and procedure each year. All attorneys on the appointment list
must file a certificate with the court administration office each year
attesting to completion of the required CLE or submit documentation showing
that the attorney is certified as a specialist in juvenile law. Continuing
legal education activity completed with-in a one year period immediately
preceding an attorney’s initial reporting period may be used to meet the
educational requirements for the initial year.
Continuing legal education activity completed during any reporting
period in excess of the minimum of 6 hours for such period may be applied to
the following period’s requirement. The
carryover provision applies to one year only;
(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.
Prompt Appointment of Counsel
2.04 Prompt Appointment of Counsel.
Counsel shall be appointed in the manner specified in Rule 4, as soon as possible, but not later than the end of the third working day after the date on which the appointing judge receives the defendant's request for counsel. "Working day" means Monday through Friday, except for County holidays, as designated by the Commissioners Court of the County. Notwithstanding the above, if prior to appointment of counsel the defendant posts bail and is released from custody, the appointment may be made at the defendant’s next court appearance, or when adversarial judicial proceedings are initiated, whichever comes first.
If an indigent defendant is arrested in another county based on this county's warrant, counsel will be appointed withing threee working days of this county's receipt of the request for counsel.
If a defendant is arrested in this county based on another county's warrant, cousnel will be appoitned 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 websit at http://tidc.tamu.edu/public.net/ or from
Jail Admintistratro or Coordinator for the court in which the case is pending. The defendant may submit these forms to: Jail Administrator or Coordinator for the court in which the case is pending. The court will rule on all
requests for counsel submitted in this manner.
If a defenant appears without counsel in any adversarial judicial proceeding, the defendant must be advised of the right to counsel and of the procedures for obtaining counsel.
1. If no case has been filed in the trial court, the appointing authority for misdemeanors is: Terry County, Judge.
2. If no case has been filed in the trial court, the appointing authority for felonies is: District Judge.
3. If the case has been filed in the trial court, the appointing authority is; the Judge of the court.
Rule 6. Notice of Appointment, Determination, and Contact with the
6.01 Notice of Determination that the Defendant is Not Indigent.
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.
Attorney Selection Process
Rule 4.05 Assignment of Attorneys:
The following method shall be used to assign attorneys from the appropriate public appointment list to represent individual defendants:
(a) The District Judge will serve as appointing judge for all defendants charged with felonies, and the County Judge will serve as appointing judge for all defendants charged with misdemeanors.
(b) The judge will:
(1) receive all requests for appointment of counsel transmitted by the magistrate as provided in Rule 2;
(2) determine whether each defendant requesting appointed counsel is indigent, as provided in Rule 3;
(3) select and appoint the appropriate counsel to represent each indigent defendant as provided in this Rule; and
(4) cause all interested parties to be notified of the appointment as provided in Rule 6.
(c) The judges have determined that an insufficient number of attorneys are available in the jurisdiction to allow for an effective random appointment procedure that will assure the most effective representation of the defendants. The appointing judge will therefore appoint a lawyer whose name appears on the public appointment list that corresponds to the most serious offense as currently charged. The judge shall allocate appointments among qualified attorneys reasonably and impartially and in a manner which is fair, neutral, and nondiscriminatory.
(d) In unusual circumstances the judge may appoint any qualified, willing attorney regardless of whether the attorney’s name is on the appropriate list, so long as the attorney would qualify for placement on the list and the attorney agrees to accept the appointment.
(e) Each attorney appointed under this Rule to represent the defendant in the trial court is appointed to represent the defendant through trial and post-trial proceedings in the trial court.
(f) At the conclusion of all proceedings in the trial court, including post-trial motions, if an indigent defendant wishes to file an appeal, the appointing judge will appoint a lawyer whose name appears on the Appellate List.
For assignment of Counsel in Death Penalty Cases see Rule 5.
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
(b) replacement of appointed counsel in a death penalty case is required under Article 26.052(e) of the Code of Criminal Procedure.
7.03 Defendant Request.
The judge presiding over the trial court proceedings in a criminal case may replace appointed counsel at the defendant's request if:
(a) the defendant requests an attorney other than trial defense counsel for appeal or post-conviction habeas corpus proceedings; or
(b) the defendant shows good cause for replacing appointed counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.
7.04 Appointing Replacement Counsel.
Whenever appointed counsel is replaced under this Rule, replacement counsel shall be selected and appointed in accordance with the procedures described in Rules 4, 5, and 6.
Fee and Expense Payment Process
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.
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 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.
Approved: October ____, 2017
John A. Didway, 121st District Judge
J. D. WagnerTerry County Judge
Approved: October ___, 2017
Kelly G. Moore, Presiding Judge of the Ninth
Administrative Judicial Region
Terry District and County Court Affidavit of Indigence.pdf (9/28/2020 3:34:21 PM) view
Terry District and County Court Attorney Application for Appointment.docx (12/11/2013 4:21:52 PM) view
Terry District and County Court Attorney Fee Schedule.docx (10/25/2019 9:24:04 AM) view
Terry District and County Court Attorney Fee Voucher.doc (12/22/2009 11:23:20 AM) view
Terry District and County Court Tracking Sheet for Request for and Appointment of Counsel.docx (12/22/2009 11:15:42 AM) view