EL PASO COUNTY INDIGENT DEFENSE PLAN

Standards And Procedures

for Magistration and the Appointment of Counsel

Approved by El Paso County Council of Judges

October 26, 2023

 

Definitions

1. “Judges” means all District Court and County Court Judges who preside over criminal cases, including the El Paso County Jail Magistrates.
2. Appointing authority includes all District Court Judges, District Criminal Court Judges, County Court at Law Judges, County Criminal Court at Law Judges and El Paso County Jail Magistrate Court Judges presiding over criminal cases.
3. “Indigent” means a person who is not financially able to employ counsel.
4. “Criminal Justice Coordination Officer” (CJC Officer) means the individual whose duties include taking an application from an arrestee requesting a court-appointed attorney and determining if the arrestee is “indigent.”
5. “Council of Judges’ Office” or “Indigent Defense Coordinator” means the individual whose duties include the appointment of court-appointed attorneys to arrestees who are not financially able to employ counsel.
6. ” Videoconference” means a two-way electronic communication of image and sound between the arrested person and the magistrate and includes secure internet videoconferencing.

Duties of Arresting Officer and Magistrate

1. The person making the arrest or the person having custody of the person arrested shall, without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested before an El Paso County Magistrate or before a magistrate in any county of this state. (The arrested person may be taken before the magistrate in person, or the image of the arrested person may be presented to the magistrate by means of a videoconference). CCP Art. 15.17(a).
2. The magistrate shall inform in clear language the person arrested, either in person or through a videoconference of the following:
   1. The accusation against the person and of any affidavit filed therewith,
   2. The right to retain counsel,
   3. The right to remain silent,
   4. The right to have an attorney present during any interview with peace officers or attorneys representing the state,
   5. The right to terminate the interview at any time,
   6. The right to have an examining trial,
   7. That they are not required to make a statement, and any statement made by them may be used against them, and
   8. If they are not a United States Citizen, the person has the right to contact the consulate of the person’s native country.
   9. That they have the right to request the appointment of counsel if the person cannot afford counsel,
   10. The procedures for requesting counsel, and
   11. If the person arrested is unable to give bail in the amount required by an order, they have the right to file a sworn financial affidavit for the magistrate’s review.
   12. If the arrestee does not speak and understand the English language or is deaf, the magistrate shall inform the person through a qualified interpreter under CCP Art. 38.30 and 38.31, as appropriate.
   13. The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the same time.

 

3. The magistrate or trial court judge shall appoint counsel in accordance with Article 1.051. If an indigent defendant is entitled to and requests appointed counsel, a court or the courts’ designee (Council of Judges’ Office or Indigent Defense Coordinator) shall appoint counsel as soon as possible, but no later than the end of the first working day after the date on which the court or courts’ designee receives the defendant’s request for appointment of counsel. CCP Art. 1.051(c).
4. A CJC Officer shall interview arrestees to complete a financial affidavit/application for court-appointed attorney during the booking process. If a determination of indigence is made and arrestee requests court-appointed counsel, an Order Appointing Attorney will be issued by the magistrate or trial court judge. CCP Art. 26.04(b) (1).
5. A recording of the communication between the person arrested and the magistrate shall be made. The recording shall be preserved until the earlier of the following dates: (1) the date on which the pretrial hearing ends; or (2) the 91^st day after the date on which the recording is made if the person is charged with a misdemeanor, or the 120^th day after the date on which the recording is made if the person is charged with a felony. Counsel for the defendant may obtain a copy of the recording on payment of a reasonable amount to cover costs of reproduction.
6. In each case in which a person arrested is taken before a magistrate as required by Subsection A, a record (See Forms-Magistrate Warnings) shall be made of:
   1. The date and time the magistrate informed the person of the person’s right to request appointment of counsel,
   2. The magistrate asking the person whether the person wants to request appointment of counsel, and
   3. Whether the person requested appointment of counsel. CCP Art. 15.17(e).
7. A record required under CCP Art. 15.17 (e) may consist of written forms, electronic recordings, or other documentation as authorized by procedures adopted in El Paso County. CCP Art. 15.17(f).
8. 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 and appoint the El Paso Public Defender’s Office.
9. Defendants who did not request an attorney at the time of the magistrate warnings but request one later will be interviewed by a CJC Officer. As an alternative, the trial court or a jail magistrate may make the attorney appointment in court under the “interest of justice” criteria. If the appointment is made by the trial court or the jail magistrate in the interest of justice, the rationale for the appointment must be placed on the record or in Odyssey.

Release on Bond of Certain Persons Arrested Without a Warrant

1. Misdemeanor - A person arrested without a warrant and who is detained in jail must be released on bond, in an amount not to exceed $5,000, not later than the 24^th hour after the person’s arrest if the person was arrested for a misdemeanor and a magistrate has not determined whether probable cause exists to believe that the person committed the offense. If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond. CCP Art. 17.033(a).
2. Felony - A person arrested without a warrant and who is detained in jail must be released on bond, in an amount not to exceed $10,000, not later than the 48^th hour after the person’s arrest if the person was arrested for a felony and a magistrate has not determined whether probable cause exists to believe that the person committed the offense. If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond. CCP Art. 17.033(b).

Out-of-County Warrants-Article 15.18

1. A person arrested under a warrant issued in a county other than the one in which the person is arrested shall be taken before a magistrate of the county where the arrest takes place, or, to provide more expeditiously to the arrested person the warnings described by Article 15.17, before a magistrate in any other county of this state, including the county where the warrant was issued. The magistrate shall take bail, if allowed by law, and, if without jurisdiction, immediately transmit the bond taken to the court having jurisdiction of the offense.
2. If the arrested person is taken before a magistrate (in person or through the means of videoconferencing), of a county other than the county that issued the warrant, the magistrate shall inform the person arrested of the procedures for requesting appointment of counsel and ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the same time. If the person requests the appointment of counsel, the magistrate shall, without unnecessary delay, but not later than 24 hours after the person requested the appointment of counsel, transmit, or cause to be transmitted, the necessary request forms to a court or the courts' designee authorized under Article 26.04 to appoint counsel in the county issuing the warrant.
3. If an indigent defendant is arrested in another county based on an El Paso County warrant, counsel will be appointed within one working day of this county’s receipt of the request for counsel. The completed indigence affidavit shall be emailed to COJAdmin@epcounty.com at the Council of Judges. The El Paso Council of Judges can be reached at (915) 546-2143.
4. If an indigent defendant is arrested in El Paso County under a warrant issued by another county and the defendant is entitled to and requests appointed counsel, the court, or the courts’ designee authorized under Article 26.04 to appoint counsel for indigent defendants in the county issuing the warrant shall appoint counsel within the guidelines of Article 1.051(c) (1) or (2). CCP 1.051(c-1).
5. If a defendant, arrested on an out-of-county warrant, is still incarcerated in the El Paso County Detention Facility on the 11^th day after arrest and appointed counsel has not been appointed, a court or the courts’ designee shall appoint counsel to represent the defendant in any matter under Chapter 11 or 17, regardless of whether adversarial judicial proceedings have been initiated against the defendant in the arresting county. The arresting county may seek reimbursement from the warrant issuing county for actual costs for appointed counsel. CCP 1.051 (c-1).

1. Definitions, as used in this section:
   1. “Indigent” means a person who is not financially able to employ counsel. CCP Art. 1.051(b).
   2. “Defendant’s adjusted gross income” means all income of the accused and spousal income 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, regular payments from Social Security, strike benefits from union funds, veteran’s benefits, training stipends, military family allotments, unemployment compensation, money or periodic receipts from estates or trusts; foster care payments; benefits from a governmental income maintenance program; food or rent received in lieu of wages; money received from the sale or rental of real or personal property. 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.
   3. “Household” means all individuals who are dependent on the accused for financial support.
   4. “Net Household income” means the defendant’s necessary expenses will be subtracted from the defendant’s and spouse’s gross income. The resulting number will be referred to as the defendant’s “net household income.”
   5. “Necessary expenses” should include, but are not limited to, an allowance for rent or mortgage, food/groceries, an allowance for a single car payment, utilities, necessary medical bills, child support, and alimony.
   6. “Liquid Assets” shall include, but are not limited to, cash, savings and checking accounts, stocks, bonds, certificates of deposit, dividends, equity in real or personal property, rental properties, any interest in retirement accounts, or any property that can be readily converted to cash, other than assets and property exempt from attachment under state law.
   7. “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.
2. If the arrested person requests court-appointed counsel at magistration, the arrested person will be interviewed by a CJC Officer. If possible, this interview will take place before release on bond. If the defendant is released before an indigence affidavit is completed, instructions will be given upon release from the jail to complete the affidavit at 500 E. San Antonio, Lower Level, El Paso, Texas 79901 at the Criminal Justice Coordination Office. The office may be reached at (915)546-2093 or at CJCServiceOfficer@epcounty.com.
3. A CJC Officer shall interview each arrested person who requests appointment of counsel, and the arrested person will provide, under oath, the necessary information, including supporting documentation (if not in custody) concerning the person’s financial resources. They shall input this information onto an affidavit (See Forms: El Paso District and County Court Application for Court Appointed Attorney) for the arrested person. The indigence affidavit shall be transmitted to the Council of Judges (COJ) Office or the Indigent Defense Coordinator as soon as possible in order for the COJ Office to be able to appoint an attorney within 24 hours from the time a request for court appointed counsel is made. The financial affidavit shall be transmitted to the jail magistrate for consideration in the setting of the bond along with the bail factors enumerated in CCP Art. 17.15.
4. A defendant is considered indigent if any of the following conditions or factors are present:
   1. The defendant’s net household income does not exceed 100% of the federal HHS poverty guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register, AND the defendant does not have liquid assets greater than $2500;
   2. The defendant 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 facility is sought, or currently incarcerated out of county for El Paso County criminal charges; or
   3. At the time of the application, the defendant, spouse, or children residing with the defendant are eligible to receive any of the following: Food stamps (SNAP), Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income (SSI), or public housing.
5. In determining whether a defendant is indigent, even though he/she does not qualify under section 4, the court or court’s designee may consider the defendant’s income, source of income, assets, liquid assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant. If this analysis of net household income results in an amount less than the amount stated in the poverty guidelines for the applicable household size, the defendant will be considered indigent. The court or court’s designee may not consider whether the defendant has posted or can post bail, except to the extent that it reflects the defendant’s financial circumstances as measured by the considerations listed in this subsection. CCP Art. 26.04 (m).
6. The procedures and standards for determining a defendant’s indigence shall apply to each defendant in the county equally, regardless of whether the defendant is in custody or has been released on bail. The procedures and standards for determining whether a defendant is indigent shall apply to misdemeanors and felonies. CCP Art. 26.04(l).
7. A defendant who requests a determination of indigency and appointment of counsel shall:
   1. Complete, under oath, a questionnaire concerning his financial resources; (See Forms Application for Appointment of Counsel)
   2. Respond, under oath, to an examination regarding his financial resources by the judge or magistrate responsible for determining whether the defendant is indigent; or
   3. Complete the questionnaire and respond to examination by the judge or magistrate. CCP Art. 26.04(n).
8. 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 indigent status or to impeach the direct testimony of the defendant. The defendant may be prosecuted under Texas Penal Code, Chapter 37. CCP Art. 26.04 (q).
9. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in the Code of Criminal Procedure and this Indigent Defense Plan.
10. A court may not threaten to arrest or incarcerate a person solely because the person requests the assistance of counsel. CCP Art. 26.04 (r).
11. A defendant that does not meet any of the standards above shall, nonetheless, be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the defendant’s dependents. In considering if obtaining private counsel will create a substantial hardship, the magistrate or judge 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 defendant’s dependents; (5) defendant’s income; (6) source of income; (7) assets and property owned; (8) outstanding obligations; (9) unusual, excessive or extraordinary medical expenses; (10) necessary expenses; (11) age or physical infirmity of household members; (12) the number and ages of dependents; and (13) spousal income that is available to the accused.
12. After the 15.17 hearing, if the arrested person has informed the magistrate that he does not want to request court-appointed counsel, this will be reflected on the Magistrate Warning Form. If at any time after the arrested person is given his magistrate warnings, he decides that he would like to be interviewed after declining court-appointed counsel, he will be referred to a CJC Officer for an interview. If at any time after the Magistrate administers the 15.17 warnings, the arrested person decides that he does not want to be interviewed for court-appointed counsel after making the request with the magistrate, he will be referred to a CJC Officer to sign a form reflecting a waiver. (See Forms- Waiver of Counsel).
13. An unrepresented non-indigent felony defendant remaining in custody for 14 days shall have his status changed to indigent and an attorney shall be appointed by the COJ. An unrepresented non indigent misdemeanor defendant remaining in custody for 7 days shall have his status changed to indigent and an attorney shall be appointed by the COJ.
14. A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs. If there is a material change in financial circumstances after a determination of indigence or non-indigence is made, the defendant, the defendant’s counsel, or the attorney representing the state may move for reconsideration of the determination. CCP Art. 26.04 (p).
15. The presumption can be rebutted based on 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, additional information regarding the accused’s financial circumstances that show that the accused does not meet any of the standards of indigence contained in these rules.
16. If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated according to the fee schedule for hours reasonably expended on the case.
17. 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, if convicted, as court costs the amount that it finds the defendant is able to pay. The finding shall include additional evidence prior to imposition of sentence that justifies a finding that the defendant can repay in part or in whole the costs of the legal services provided. An order supporting such finding shall be entered. CCP Art. 26.05(g).
18. Each court in which the case is pending shall conduct a hearing, after due notice, on all reevaluations of indigency and/or material change of financial circumstances according to the law so as not to interfere with an established attorney-client relationship.

1. Whenever a court, or the courts’ designee authorized to appoint counsel for indigent defendants in the county determines, for the purpose of a criminal proceeding, that a defendant charged with or appealing a conviction of a felony or a misdemeanor punishable by confinement is indigent, or if the interests of justice require representation of a defendant in a proceeding, the court or the courts’ designee shall appoint one or more practicing attorneys to represent the defendant in accordance with the El Paso County Indigent Defense Plan. CCP Art. 26.04(c).
2. In a county with a public defender's office, the court or the courts' designee shall give priority in appointing that office to represent the defendant in the criminal proceeding, including a proceeding in a capital murder case. However, the court is not required to appoint the public defender's office if:
   1. The court makes a finding of good cause for appointing other counsel, provided that in a capital murder case the court makes a finding of good cause on the record for appointing that counsel;
   2. The appointment would be contrary to the office's written plan under CCP Art. 26.044 or would violate the maximum allowable caseloads established for the office;
   3. The office is prohibited from accepting the appointment under CCP Art. 26.044(j); or
   4. A managed assigned counsel program also exists in the county and an attorney will be appointed under that program. El Paso County public appointment lists are comprised of private attorneys as well as attorneys employed by the El Paso County Public Defender’s Office.
   5. The defendant has an attorney already appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter, unless the attorney is not on the list for the type of offense involved in the current case.
3. Misdemeanor and Non-Capital Felony Cases
   1. The Council of Judges’ Office, or the trial court, will identify which of the appointment lists, discussed in “Minimum Attorney Standards”, is most appropriate based on the accusations against the defendant and will appoint the attorney whose name is first on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order.
   2. Good cause may include:
      1. The defendant requesting counsel does not understand English, in which case the judge will appoint the lawyer whose name appears next in order and speaks the clients’ language, if one is available;
      2. The defendant has an attorney already appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter, unless the attorney is not on the list for the type of offense involved in the current case; or
      3. Other good cause exists for varying from the list.
4. Once appointed, an attorney’s name will be moved to the bottom of the appointment list. 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.

 

 

5. Capital Felony Cases
   1. The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless good cause exists to appoint private counsel. If a co-defendant requests appointment of counsel and is determined to be indigent, the appointing authority shall appoint counsel pursuant to the standards and procedures stated in this Section.
   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 stated in this Section.
6. 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 provide 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.
7. The Council of Judges or the trial court shall immediately contact the attorneys appointed by phone, fax, e-mail, or in person, and notify the attorneys of the appointment and the last known location of the defendant.
8. Judicial Removal from Case. The judge presiding over a criminal case may remove appointed counsel upon entering a written order (See Forms: El Paso County Removal of Attorney) showing good cause for such removal, including, without limitation, the following:
   1. Counsel’s failure to appear at a court hearing;
   2. Counsel’s failure to make personal contact with defendant if he is incarcerated;
   3. Counsel’s failure to make contact with defendant out on bond;
   4. Counsel’s failure to comply with the requirements imposed upon counsel by this plan and the Fair Defense Act;
   5. Current information about the defendant and the charges against the defendant indicate that another qualified attorney is more appropriate for the defendant under these rules;
   6. In a death penalty case, replacement is required under CCP Art. 26.052(e);
   7. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
   8. The defendant requests an attorney, other than trial counsel, for appeal; or
   9. The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.
9. Appointment of Replacement Counsel. Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.
10. 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.
11. A public appointment list from which an attorney is appointed shall contain the names of qualified attorneys, each of whom:
    1. Applies to be included on the list;
    2. Meets the objective qualifications specified by the judges in the El Paso County Indigent Defense Plan;
    3. Meets applicable qualifications specified by the Texas Indigent Defense Commission; and
    4. Is approved by a majority of the District Court Judges or the County Court Judges who established the appointment list. CCP Art. 26.04(d).
12. An attorney appointed shall:
    1. Make every reasonable effort to personally contact the defendant, if incarcerated, not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed. A majority of the judges of the county courts and the district courts who preside over criminal cases may remove from consideration for appointment an attorney who intentionally or repeatedly violates this section.
    2. Make every reasonable effort to contact the defendant, if out on bond, not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed. Reasonable effort includes letter, fax, phone, videoconference, or personal visit. A majority of the judges of the county courts and the district courts who preside over criminal cases may remove from consideration for appointment an attorney who intentionally or repeatedly violates this section.
    3. Represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted to or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record.
    4. With respect to a defendant not represented by other counsel, before withdrawing as counsel for the defendant after a trial or, after the entry of a guilty plea where the defendant retains the right to appeal, the attorney shall advise the defendant of the defendant’s right to file a motion for new trial and a notice of appeal. If the defendant wishes to pursue an appeal, the attorney shall assist the defendant in requesting the prompt appointment of replacement counsel and if replacement counsel is not appointed promptly and the defendant wishes to pursue an appeal, file a timely notice of appeal.
    5. Not later than October 15^th of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information for the preceding fiscal year that describes the percentage of the attorney’s practice time that was dedicated to work based on appointments accepted in the county under CCP Article 26.04 and Title 3, Family Code. The report must be submitted through the online form to the Texas Indigent Defense Commission. CCP Art. 26.04(j).
13. Once appointed, except for the El Paso County Public Defender’s Office, an attorney’s name will be moved to the bottom of the appointment list. 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.
14. The El Paso County Public Defender’s Office will receive no more than 50% of cases for each category of offense. The District Court and County Court Judges may, from time to time, adjust the percentage of cases received by the El Paso County Public Defender’s Office, but the percentage shall not be more than 50% of all the cases. The Public Defender’s Office may refuse to accept an appointment to a case if:
    1. A conflict of interest exists;
    2. The office has insufficient resources to provide adequate representation;
    3. The office is incapable of providing representation in accordance with the rules of professional conduct;
    4. It would violate the maximum allowed caseload limits set by the office; or
    5. The office shows other good cause for refusing appointment.
15. An attorney appointed to a case that does not appear or notify the court by 9:30 a.m. the following morning may be removed from the case and go back to the bottom of the list. Excessive tardiness or failures to appear may result in removal from the case and the public appointment list if it impedes the administration of justice.

1. Court-appointed counsel, other than an attorney with the Public Defender's Office, appointed to represent a defendant in a criminal proceeding, including a habeas corpus hearing, shall be paid a reasonable attorney's fee for performing the following services:
   1. Time spent in court making an appearance on behalf of the defendant as evidenced by a docket entry, time spent in trial, and time spent in a proceeding in which sworn oral testimony is elicited;
   2. Reasonable and necessary time spent out of court on the case, supported by any documentation that the court requires;
   3. Preparation of an appellate brief and preparation and presentation of oral argument to the Eighth Court of Appeals Court or the Court of Criminal Appeals;
   4. Preparation of a motion for rehearing; and
   5. Preparation of a petition for discretionary review to the Court of Criminal Appeals and if necessary, preparation of a brief in the Court of Criminal Appeals and preparation and presentation of oral argument in the Court of Criminal Appeals.
2. Court-appointed counsel shall be compensated for all reasonable and appropriate services rendered in representing the accused. Compensation shall be reasonable for time and effort expended and will be in accordance with a fee schedule adopted and approved by a majority of the District Courts, Criminal District Courts, County Courts at Law, and County Criminal Courts at Law that preside over criminal cases in El Paso County. A copy of the schedule shall be sent to the El Paso County Commissioners Court.
3. The El Paso County fee schedule does not include an opt-out provision that allows a judge to approve a different rate on a case-by-case basis.
4. An attorney shall submit only one misdemeanor voucher if the defendant has multiple misdemeanor cases. An attorney shall submit only one felony voucher if the defendant has multiple felony cases. If related cases are tried, pleaded, or appealed together, only one voucher may be submitted. A lawyer seeking reimbursement for the same work done for each case must specify the detailed and distinct work done by cause. A lawyer shall include any amount that has already been requested or paid on a defendant’s other cases on every voucher submitted.
5. The fee schedule takes into consideration reasonable and necessary overhead costs. Overhead costs that are included in the fee schedule and may not be additionally claimed on a voucher include, but are not limited to: facsimile or email expenses, supplies, equipment, rent, repairs, utilities, insurance, advertising, taxes, Texas e-filing fees, or CLE. See Forms: El Paso County Indigent Defense Plan Schedule of Fees for the Compensation of Court Appointed Counsel, El Paso Criminal District and County Court Schedule of Fees for the Compensation of Court Appointed Counsel, and Addendum to the El Paso Criminal District and County Court Schedule of Fees for the Compensation of Court Appointed Counsel.
6. The following items will not be paid: receiving the court appointment, opening or closing a case file on an appointed case, filling out the voucher, delivering dismissal to the defendant, faxing/emailing documents, receiving settings or faxes, requesting PORTAL access; printing documents from PORTAL, calendaring hearings, setting up appointments, reminding defendants of upcoming court hearings, and e-filing documents.
7. Any legal research hours in excess of three hours in a misdemeanor case and six hours in a felony case will only be paid if an ex parte memorandum addressing the issue and the need for further legal research is attached to the attorney voucher. This ex parte memorandum may be sealed upon the motion of the attorney and order signed by the court.
8. The following are the only kinds of expenses which will be reimbursed if a proper request for reimbursement is made; (a) travel expenses for the attorney, witnesses, experts, and/or investigators, only if prior court approval has been obtained; (b) a court reporter’s fee for transcripts only if prior court approval has been obtained; (c) photographs and media submitted as exhibits at trial; (d) other expenses required to adequately defend the case only if prior court approval has been obtained.
9. An appointed attorney shall submit a fee voucher to the trial court for services rendered. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove the requested amount of payment. If the trial Judge disapproves the requested amount of payment, the judge shall make written findings stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount. An attorney whose request for payment is disapproved or is not otherwise acted on by the 60th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of the administrative judicial region. On the filing of a motion, the presiding judge of the administrative judicial region shall review the disapproval of payment or failure to act and determine the appropriate amount of payment. In reviewing the disapproval or failure to act, the presiding judge of the administrative judicial region may conduct a hearing. Not later than the 45th day after the date an application for payment of a fee is submitted under this article, the Commissioners Court shall pay to the appointed counsel the amount that is approved by the presiding judge of the administrative judicial region and that is in accordance with the fee schedule for that county. CCP Art. 26.05(c). Vouchers older than 90 days require an explanation for the untimeliness prior to approval.
10. Each fee schedule adopted shall state reasonable fixed maximum hourly rates, taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates, and shall provide a form for the appointed counsel to itemize the types of services performed. No payment shall be made under this article until the form for itemizing the services performed is submitted to the judge presiding over the proceedings.
11. Appointed counsel in a non-capital case, appointed to represent a defendant shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. However, prior court approval should be obtained before expenses for investigation and for mental health and other experts are incurred.
12. Investigators must attach the court order to the payment voucher. Prior to submitting a voucher, an expert/investigator must verify to the court that a report or work product has been tendered to current defense counsel. The defense attorney must verify investigative services were provided by signing the investigator payment voucher. If the payment voucher exceeds the amount approved by the trial court, another motion for the overage must be tendered to the court and the overage will not be paid unless the overage payment voucher is accompanied by another court order. The County Auditor shall not pay an investigator payment voucher unless it is approved by the defense attorney and the court order is attached to voucher.

1. The request for expenses must state the type of investigation to be conducted or the type of expert to be retained, specific facts that suggest the investigation will result in admissible evidence or that the services of an expert are reasonably necessary to assist in the preparation of a potential defense, and an itemized list of anticipated expenses for each investigation and/or each expert.
2. The court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall state the reasons for the denial in writing, attach the denial to the confidential request, and submit the request and denial as a sealed exhibit to the record. CCP art. 26.05(d)
3. A majority of the judges of the district and county courts trying criminal cases in the county may remove an investigator from consideration for appointment if, after a hearing, it is shown that the investigator submitted a claim for services not performed by the investigator.

 

The El Paso County Auditor will not pay any attorney or investigator who is not on the approved list at the time of the appointment.

Court appointed attorneys, investigators, and all appointed experts have a responsibility to turn in their voucher within 90 days after disposition of the case. Disposition of the criminal case includes a plea of guilty, a trial verdict, a dismissal, or the defendant not appearing for a court hearing. Interim vouchers may be paid by the trial court at its discretion.

El Paso District and County Court 2017 POVERTY GUIDELINES.docx (10/27/2017 4:46:56 PM) view
El Paso District and County Court ADDENDUM TO THE EL PASO CRIMINAL DISTRICT AND COUNTY COURT SCHEDULE OF FEES FOR THE COMPENSATION OF COURT APPOINTED COUNSEL.pdf (6/11/2021 4:52:04 PM) view
El Paso District and County Court Affidavit of Indigence.pdf (2/13/2024 9:18:42 AM) view
El Paso District and County Court Attorney Fee Schedule.pdf (10/31/2023 4:37:05 PM) view
El Paso District and County Court Attorney Fee Voucher.docx (10/27/2017 4:48:22 PM) view
El Paso District and County Court Attorney of Record Form 10-2021.PDF (10/29/2021 12:10:02 PM) view
El Paso District and County Court Child Protective Services Plan (10-2021).pdf (10/29/2021 12:14:30 PM) view
El Paso District and County Court Child Welfare Voucher (10-2021).pdf (10/29/2021 12:14:00 PM) view
El Paso District and County Court El Paso District and County Court Addendum to the El Paso Criminal District and County Court Schedule of Fees for Appointed Counsel 10-2021.pdf (10/29/2021 12:13:13 PM) view
El Paso District and County Court Indigent Defense Plan.docx (10/27/2017 4:49:20 PM) view
El Paso District and County Court Magistrate’s Warning Form.pdf (10/29/2021 12:06:45 PM) view
El Paso District and County Court Managed Assigned Counsel Plan of Operation.docx (10/31/2019 12:00:02 PM) view
El Paso District and County Court Order Removing Appointed Counsel.docx (10/31/2019 11:41:59 AM) view
El Paso District and County Court Waiver of Counsel.pdf (10/29/2021 12:11:41 PM) view