To implement the Texas Fair Defense Act (FDA, Acts 2001, 776 Leg.) and Section 51.101 of the Texas Family Code, the following plan is adopted by the Terry County Juvenile Board to be effective immediately upon adoption:

 

                                                             Rule 1.  Applicability

 

1.01     These rules will govern procedures in juvenile court, notwithstanding any other local rule to the contrary.

Conduct Prompt Detention Hearing

A.    A child taken into custody must either be brought to a juvenile processing office without unnecessary delay where they may not be detained for longer than six hours pursuant to §52.025, Family Code, or another disposition authorized by §52.02, Family Code, including referral to the office designated by the juvenile board as intake for the juvenile court.  The intake officer shall process the child according the requirement of §53.01, Family Code, and shall also inform the child and the child’s parents of the right to appointed counsel if they are indigent and provide a form for the purpose of determining eligibility for appointment of counsel. If the child is not released by intake, then a Detention Hearing shall be held not later than the second working day after the child is taken into custody unless the child is detained on a Friday, Saturday or listed holiday in which case the detention hearing shall be held on the first working day after the child is taken into custody. 

B.     Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct.

C.     The detention hearing may be conducted without the presence of the child’s parent(s) or other responsible adult(s), however, in these cases the court must immediately appoint counsel or a guardian ad litem to represent the child.

D.    The court shall provide the attorney for the child access to all written matter to be considered by the Court in making the detention decision.

Rule 2.  Procedures for Determining Whether a Child is Indigent

 

2.01     Determination of Indigence

 

            (a) A child is presumed indigent if any of the following conditions or factors are present:

                     1. At the time of requesting appointed counsel, a child is presumed indigent if the child's parent(s) or other person(s) determined responsible for the support of the child is eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.

                     2. The net  household income of the child's parent(s) or other person(s) determined responsible for the support of the child 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;

                     3. The child's parent(s) or other person(s) determined responsible for the support of the child 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) The child who does not meet any of the standards above shall nevertheless be considered indigent if the child and the child's parent(s) or other person(s) responsible for the child are not financially able to employ counsel taking into account the nature of the allegations, the anticipated complexity of the defense and the estimated cost of obtaining competent private legal representation for the matter charged.

 

2.02     Payment by Child.

 

A court that finds that a child and his or her parents have financial resources to offset, in part or in whole, the costs of legal services provided under this plan may order the child or the child’s parents to pay the county that portion of the costs of legal services provided that it finds that the child is able to pay.

   2.     An attorney shall complete a minimum of 6 hours of CLE pertaining to juvenile 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;

  and

 

3.         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)  The “A” list shall encompass cases concerning:

 

1.                  Determinate sentence possibility

2.                  Discretionary transfer to adult court

 

The “A” list attorneys shall reside in or maintain an office in the 121st Judicial District and possess the following minimum qualifications:

 

1.                                          Have met all qualifications for placement on the “B” list;

2.                         Two years of experience as a licensed attorney; and

3.                                          Counsel in at least 10 juvenile cases

 

Appointment of counsel to represent a child in a motion to modify disposition proceeding shall be from the list appropriate for the original proceedings in the case.

 

Appointment of counsel to represent a child on appeal shall be from the “A” list.

 

 

3.03     Approval of attorneys by the Judges.

 

(a) In addition to meeting the objective qualifications described above, an attorney may be placed on one or more of the lists only if the Juvenile Court Judge approves the attorney's placement on each such list.

 

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

 

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

 

(2) whom the judge considers to be actually competent to adequately handle cases associated with the list. (c) An attorney may be removed from one or more public appointment lists by the judge 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. 

 

Any decision of the judge related to placement on or removal from a list may be appealed to the juvenile board by the attorney.

2.04     Time of Appointment

 

The attorney shall be appointed prior to the detention hearing if detention is sought. If detention is not sought and the child is not detained, the court shall proceed as follows:

 

1.         Upon the filing of a petition, the court shall determine whether the child’s family is indigent.

2.                  Upon the filing of a motion to modify disposition by committing the child to TYC or placing the child in a secure correctional facility, the court shall determine whether the child’s family is indigent.

3.                  If a finding of indigence is made, the court shall appoint an attorney on or before the fifth working day after the date the petition is served upon the child or on or before the fifth working day after the date the motion to modify is filed.

3.04     Assignment of Attorneys:

 

The following method shall be used to assign attorneys from the appropriate public appointment list to represent children:

 

(a) The Juvenile Court Judge will serve as appointing judge for all juvenile cases.  The Alternate Juvenile Court Judge will serve as alternate appointing judge in the absence of the Juvenile Court Judge.

 

(b) The judge will:

 

(1) receive all requests for appointment of counsel ;

 

(2) determine  whether the child is  indigent; and

 

(3) select and appoint the appropriate counsel to represent the child.

 

(c) The juvenile board has 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 children.  The appointing judge will therefore appoint a lawyer whose name appears on the appropriate public appointment list.  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 is on the appropriate list, so long as the attorney would qualify for placement on the list.

 

(e) Each attorney appointed under this Rule to represent the child in the juvenile court is appointed to represent the child through trial and post-trial proceedings in the juvenile court.

 

(f) At the conclusion of all proceedings in the juvenile court, including post-trial motions, if an indigent child wishes to file an appeal, the appointing judge will appoint the same lawyer or another lawyer whose name appears on List “A”.

Rule 4.  Attorney Fee Schedule and Compensation of Appointed Attorneys

 

4.01     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.

 

 

4.02     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; andAn 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.

 

 

4.03     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 is not acted upon in 60 days may appeal the disapproval or failure 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.

Approved by the Juvenile Board of Terry County, Texas at a duly called meeting on ___________.

 

___________________________________ 

John A. Didway

Juvenile Board Chairman

 

Approved:   _______________

___________________________________

Kelly G. Moore, Presiding Judge of the Ninth

Administrative Judicial Region Terry Juvenile Board Affidavit of Indigence.pdf (9/28/2020 3:42:02 PM) view
Terry Juvenile Board Attorney Application for Appointment.doc (12/11/2013 3:56:25 PM) view
Terry Juvenile Board Attorney Fee Schedule.docx (7/27/2023 5:12:50 PM) view
Terry Juvenile Board Attorney Fee Voucher.doc (12/23/2009 9:18:23 AM) view