Borden and Scurry District Court and County Court Plan
The following plan for appointment of counsel for all courts with criminal case jurisdiction in the 132nd Judicial District of Texas is an alternative program as provided by Article 26.04 of the Texas Code of Criminal Procedure, as amended by Senate Bill 7. The Plan governs appointment of counsel in misdemeanor, felony and juvenile cases. In all cases in which a defendant is entitled to appointment of counsel, the court or the court’s designee will appoint counsel in accordance with this Plan.
All arrested persons will be promptly taken before a magistrate without unnecessary delay as required by Article 14.06 of the Texas Code of Criminal Procedure. During the initial appearance, the magistrate will advise each defendant of his rights, including the right to counsel and the right to request appointment of counsel if he or she is indigent and cannot afford counsel. An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement.
The magistrate will specifically advise the defendant of the procedures for requesting appointed counsel, including: 1) that a written Request for Appointment of Counsel, which will be used to determine whether the defendant is indigent, must be completed; 2) that the defendant will be given assistance in completing the Request for Appointment of Counsel upon request. Each defendant desiring appointed counsel must request appointment of counsel using the same form, which will be established and approved by separate order.
If the magistrate is not authorized to appoint counsel and if the accused requests appointment of counsel, the magistrate shall transmit or cause to be transmitted the magistrate form and any other forms requesting appointment of counsel to the appointing authority. The forms requesting appointment of counsel shall be transmitted without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel.
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 ensure assistance in completing the forms at the same time. The form will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made.
Indigence Determination Standards
In determining whether a defendant is indigent, the court or the court’s designee may consider the defendant’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents and spousal income that is available to the defendant.
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
ii. “Net household income” means all income of the accused and spousal income actually 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, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the accused has no income or lesser income.
iii. “Non-exempt assets and property” means cash on hand, stocks and bonds, accounts at financial institutions, real estate, and personal property of any nature.
iv. “Household” means all individuals who are actually dependent on the accused for financial support.
v. “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.
B. Eligibility for Appointment
i. An accused is presumed indigent if at the time of requesting appointed counsel, the accused is eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing AND meets the asset test set out in subsection iii below:
ii. An accused is also considered indigent if the accused meets any one of the following three criteria AND meets the asset test set out in subsection iii below:
1. the accused’s net household income does not exceed 75% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register;
2. 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
3. The difference between the accused’s monthly net household income and reasonable necessary expenses is less than $300.00. Reasonably necessary expenses should include but are not limited to: rent or mortgage, food/groceries, car payment, car insurance, health insurance, medical bills, and utilities (water, electric, gas, phone).
iii. In addition to meeting one of the criteria under section ii above, an accused is considered indigent only if the value of non-exempt assets and property owned by the accused does not exceed $2,500;
iv. An accused who does not meet any of the standards above shall nevertheless be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the accused’s dependents. In considering if obtaining private counsel will create a substantial hardship, the appointing 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 accused’s dependents;
5. accused’s income,
6. source of income,
7. assets and property owned,
8. outstanding obligations,
9. necessary expenses,
10. the number and ages of dependents, and
11. spousal income that is available to the accused.
v. Factors NOT to be considered in determining indigence:
1. The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.
2. The resources available to friends or relatives of the accused who are not a spouse or a part of the household, as defined above, may not be considered in determining whether the accused is indigent.
vi. Only the accused's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
C. Indigence Proceedings:
i. The appointing authority can require the accused to respond to questions about the accused’s financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
ii. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.
iii. An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused’s financial circumstances occurs.
1. An accused’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the accused, the accused’s attorney, or the attorney representing the state. The accused’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:
a. 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
b. Additional information regarding the accused’s financial circumstances that shows that the accused does not meet the standards for indigence contained in these rules.
2. If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county as established in the fee schedule set out in this plan.
v. 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 during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.
If the information obtained from the Request for Appointment of Counsel fails to establish that the defendant is indigent, the court will deny the request. The original Request for Appointment of Counsel and Order will be filed, and a copy given to the defendant.
If the defendant is indigent, counsel will be appointed according to the terms of this Plan. After a defendant has been determined to be indigent, it will be presumed that he remains indigent throughout the course of the proceeding against him. However, the determination of indigency can be re-evaluated if the defendant’s financial circumstances change as set out above.
If adversarial judicial proceedings have been instituted against an indigent defendant, counsel will be appointed as soon as possible, but in no event later than the end of the third business day after the court or the court’s designee receives the Request for Appointment of Counsel. If an indigent is released from custody prior to appointment of counsel, counsel will not be appointed until the first court appearance, or the initiation of adversarial judicial proceedings, whichever occurs first.
Minimum Attorney Qualifications
In appointing counsel
pursuant to the procedures and terms set forth below, the court or the
court’s designee will appoint only attorneys who are qualified to handle the
particular case for which he or she is appointed. Attorneys who satisfy the standards set forth
below will be presumed to be competent and qualified.
The court, in a proper circumstance,
may consider exceptions to these qualifications and may appoint an attorney not
meeting these qualifications if the attorney has other qualifications or
experience that establish his competency to handle a particular case. However, no exceptions will be entertained
with respect to capital cases. In all
cases in which the death penalty is sought, both a lead counsel and a second
chair counsel will be appointed in accordance with Article 26.052 of the Texas
Code of Criminal Procedure, and in compliance with the standards adopted
pursuant to that Article by the local selection committee of the administrative
The court or the court’s designee
will appoint counsel for eligible defendants pursuant to the following plan,
which is designed to insure that all indigent defendants receive competent
representation. All attorneys appointed
under this Plan will be notified immediately of the appointment and reminded of
the duty to attempt to contact the defendant by the end of the next business
The court shall appoint counsel from
a rotating list of names of qualified attorneys, each of whom has requested or
consented to be included on the list and meets or exceeds the objective
qualifications set by the court. All
attorneys who are qualified herein to handle criminal cases are also deemed
qualified to handle juvenile cases. To
qualify to be included in the rotating list of names of qualified attorneys,
each attorney must:
1) be licensed by the
Supreme Court of the State of Texas and be a member in good standing of the
State Bar of Texas;
2) have been engaged in the practice of law a minimum of
one year, or otherwise be supervised by,
or in association with, an attorney who has been in private practice for a
minimum of at least one year, as of the time he has requested or consented to
be included on the list;
attend and/or review criminal and/or juvenile law C.L.E. updates and seminars
as may be required by law, but not less than six hours of C.L.E. per year.
4) 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/form
prescribed by the Texas Indigent Defense Commission to the court administration
office in the county.
Prompt Appointment of Counsel
A. Prompt Appointment of Counsel
i. Counsel shall be appointed as soon as possible to represent indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel whether or not a case has been filed in the trial court. Working day means Monday through Friday, excluding official state holidays.
ii. If the defendant is released from custody prior to the appointment of counsel, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.
iii. Appointment Authority
1. If no case has been filed in the trial court, the appointing authority for misdemeanors is the County Judge.
2. If no case has been filed in the trial court, the appointing authority for felonies is the District Court Judge.
3. If the case has been filed in the trial court, the appointing authority is the Judge of trial court in which case has been filed.
B. Out-of-County Warrants
i. If an indigent defendant is arrested in another county based on this county's warrant, counsel will be appointed within three working days of this county's receipt of the request for counsel.
ii. If a defendant is arrested in this county based on another county's warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county's custody.
If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission's website at http//tidc.tamu.edu/public.net/. The defendant may submit these forms to the county judge for misdemeanors or to the district judge for felonies.
Attorney Selection Process
In appointing counsel pursuant to the procedures and terms set forth below, the court or the court’s designee will appoint only attorneys who are qualified to handle the particular case for which he or she is appointed. Attorneys who satisfy the standards set forth below will be presumed to be competent and qualified.
The court, in a proper circumstance, may consider exceptions to these qualifications and may appoint an attorney not meeting these qualifications if the attorney has other qualifications or experience that establish his competency to handle a particular case.
Capital Felony Cases
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.
If private counsel is appointed to a co-defendant, rather the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in this Section.
The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if:
A conflict of interest exists;
The Office has insufficient resources to provide adequate representation;
The Office is incapable of providing representation in accordance with the rules of professional conduct;
Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or
The Office shows other good cause for refusing appointment.
In all cases in which the death penalty is sought, both a lead counsel and a second chair counsel will be appointed in accordance with Article 26.052 of the Texas Code of Criminal Procedure, and in compliance with the standards adopted pursuant to that Article by the local selection committee of the administrative judicial region.
The court shall appoint counsel from a rotating list of names of qualified attorneys, each of whom has requested or consented to be included on the list and meets or exceeds the objective qualifications set by the court. All attorneys who are qualified herein to handle criminal cases are also deemed qualified to handle juvenile cases. To qualify to be included in the rotating list of names of qualified attorneys, each attorney must:
1) be licensed by the Supreme Court of the State of Texas and be a member in good standing of the State Bar of Texas;
2) have been engaged in the practice of law a minimum of one year, or otherwise be supervised by, or in association with, an attorney who has been in private practice for a minimum of at least one year, as of the time he has requested or consented to be included on the list;
3) periodically attend and/or review criminal and/or juvenile law C.L.E. updates and seminars as may be required by law.
Fee and Expense Payment Process
A. 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 judges hearing criminal cases in the county.
B. Payment Process: No payment of attorney’s fees will be made other than in accordance with the rules set forth below.
i. The Court, on its own motion, may enter an order paying the appointed attorney pursuant to the fee schedule adopted and approved by the judges hearing criminal cases in the county.
ii. An appointed attorney may fill out and submit a fee voucher to the court for services rendered.
iii. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.
1. If a judge disapproves a request for compensation, 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.
2. 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 this administrative judicial region.
C. Payment of Expenses:
i. Court appointed counsel will be reimbursed for reasonable and necessary expenses incurred, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior approval shall be paid according to the procedures set forth below. Whenever possible prior court approval should be obtained before expenses are incurred.
ii. Procedure With Prior Court Approval:
1. 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 the below, as applicable:
a. The type of investigation to be conducted or the type of expert to be retained;
b. 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
c. 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:
a. State the reasons for the denial in writing;
b. Attach the denial to the confidential request; and
c. Submit the request and denial as a sealed exhibit to the record.
iii. 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.
Borden Scurry District and County Court Affidavit of Indigence.docx (2/2/2010 2:59:28 PM) view
Borden Scurry District and County Court Attorney Fee Schedule.pdf (8/2/2010 2:43:03 PM) view
Borden Scurry District and County Court Attorney Fee Voucher.doc (8/19/2010 11:55:05 AM) view
Borden Scurry District and County Court Magistrates Warning Form.docx (2/2/2010 3:00:44 PM) view