The following District Court and County Court Plan for Appointment of Counsel (Plan) for all courts with criminal case jurisdiction in the 132nd Judicial District of Texas is an alternative program as provided by Article 26.04(g) of the Texas Code of Criminal Procedure. The Plan governs the fair and timely appointment of counsel in misdemeanor, felony, and juvenile cases. In all cases in which an accused is entitled to appointment of counsel, the Court or the Court's designee will appoint counsel in accordance with this Plan.

All arrested individuals will be promptly taken before a magistrate without unnecessary delay, but not later than 48 hours after the arrest, as required by Article 14.06(a) of the Texas Code of Criminal Procedure. During the initial appearance, the magistrate will advise each accused of their rights, including the right to counsel and the right to request an appointment of counsel if the accused is indigent and cannot afford counsel. An accused who is indigent is entitled to have an attorney appointed to represent the accused in any adversary judicial proceeding that may result in punishment by confinement. Tex. Code Crim. Proc. Art. 15.17.

Duties of Magistrate

The magistrate will advise the accused 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 accused is indigent, must be completed; and

2. That the accused will be given reasonable aid in completing the request for appointment of counsel upon request. Tex. Code Crim. Proc. Art. 15.17(a).

Each accused desiring appointed counsel must request appointment of counsel using the approved Affidavit of Indigence and Request for Court Appointed Attorney form, which will be approved by separate order. The magistrate will create a record that documents that the accused was informed of the right to request appointment of counsel, that the magistrate inquired whether the accused wanted to request court-appointed counsel, and whether the accused did request court-appointed counsel. Tex. Code Crim. Proc. Art. 15.17(e)(1), (2) and (3). If the magistrate is not authorized to appoint counsel and the accused requests it, the magistrate shall send or cause to be sent the magistrate form and any other forms requesting appointment of counsel to the appointing authority. Tex. Code Crim. Proc. Art. 15.17(a).

Out-of-County Warrants

For individuals arrested on out-of-county warrants, the magistrate will ask the accused whether they would like to request appointed counsel, and the magistrate will document the accused's response. If counsel is requested, the magistrate will inform the accused of the procedure for requesting counsel and ensure reasonable assistance in completing the forms. The form will be transmitted within 24 hours of the request being made to the appointing authority in the county issuing the warrant. Tex. Code Crim. Proc. Art. 15.18(a-1).

 

            All arrested persons will be promptly taken before a magistrate without unnecessary delay, but not later than 48 hours after the arrest, as required by Article 14.06(a) of the Texas Code of Criminal Procedure.  During the initial appearance, the magistrate will advise each accused person of the accused's rights, including the right to counsel and the right to request appointment of counsel if the accused is indigent and cannot afford counsel.  An accused who is indigent is entitled to have an attorney appointed to represent the accused in any adversary judicial proceeding that may result in punishment by confinement.  Tex. Code Crim. Proc. Art. 15.17.

 

            The magistrate will specifically advise the accused 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 accused is indigent, must be completed; and

2) that the accused will be given reasonable assistance in completing the request for appointment of counsel upon request. Tex. Code Crim. Proc. Art. 15.17(a).

            Each accused desiring appointed counsel must request appointment of counsel using the approved form, which will be established and approved by separate order.  The magistrate will create a record documenting that the accused was informed of the right to request appointment of counsel, that the magistrate inquired if the accused wanted to request appointment of counsel, and whether or not the accused requested court appointed counsel.  Tex. Code Crim. Proc. Art. 15.17(e)(1), (2) and (3).

 

            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.  Tex. Code Crim. Proc. Art. 15.17(a).

             For persons arrested on out-of-county warrants, the magistrate will ask the accused if the accused would like to request appointed counsel.  The magistrate will document the accused's response, and if counsel is requested, the magistsrate will inform the accused ot the procedure for requesting counsel, and ensure reasonable assistance in completing the forms at the same time.  The form will be transmitted within 24 hours of the request being made to the appointing authority in the county issuing the warrant.  Tex. Code Crim. Proc. Art. 15.18(a-1).

            

Definitions, as used in this rule:

"Indigent" means a person who is not financially able to employ counsel. Tex. Code Crim. Proc. Art. 1.051(b).

"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 annual basis, averaged together with periods in which the accused has no income or lower income.

"Non-exempt assets and property" means cash on hand, stocks and bonds, accounts at financial institutions, real estate, and personal property of any nature.

"Household" means all individuals who are actually dependent on the accused for financial support.

"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.

Presumptions of Indigence

1. An accused is presumed indigent if:
   1. 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.

 

2. 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.

 

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.

 

4. The difference between the accused's monthly net household income and reasonably 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, electricity, gas, phone).

 

5. In addition to meeting one of the criteria under section 2 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.

Tex. Code Crim. Proc. Art. 26.04(l).

            In determining whether an accused is indigent, the court or the court’s designee may consider the accused’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 accused. 

 

   

            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.  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.

 

 

             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 the attorney 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 the attorney's 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 judicial region.

  

            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.  Tex. Code Crim. Proc. Art. 26.04.  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 day.

 

            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. 

         

Definitions

Definitions, as used in this rule:

"Indigent" means a person who is not financially able to employ counsel. Tex. Code Crim. Proc. Art. 1.051(b).

"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 annual basis, averaged together with periods in which the accused has no income or lower income.

"Non-exempt assets and property" means cash on hand, stocks and bonds, accounts at financial institutions, real estate, and personal property of any nature.

"Household" means all individuals who are actually dependent on the accused for financial support.

"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.

Presumptions of Indigence

1. An accused is presumed indigent if:
   1. 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.

 

2. 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.

 

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.

 

4. The difference between the accused's monthly net household income and reasonably 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, electricity, gas, phone).

 

5. In addition to meeting one of the criteria under section 2 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.

Tex. Code Crim. Proc. Art. 26.04(l).

Substantial Hardship in Retaining Counsel

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 whether obtaining private counsel will create a substantial hardship, the appointing authority shall consider the following:

6. The nature of the criminal charge(s),

 

7. The anticipated complexity of the defense,

 

8. The estimated cost of obtaining competent private legal representation for the matter(s) charged,

 

9. The amount needed for the support of the accused and the accused's dependents,

 

10. The accused's income,

 

11. Source of income,

 

12. Assets and property owned,

 

13. Outstanding obligations,

 

14. Necessary expenses,

 

15. The number and ages of dependents, and.

 

16. Spousal income that is available to the accused.

Tex. Code Crim. Proc. Art. 26.04(m).

Factors in Determination of Indigence

In determining whether an accused is indigent, the Court or the Court's designee may consider the accused'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 accused.

Factors Not Considered to Determine Indigence

The accused's posting of bail or ability to post bail may not be considered in deciding whether the accused is indigent. Tex. Code Crim. Proc. Art. 26.04(m). The resources available to friends or relatives of the accused, who are not a spouse or part of the household as defined above, may not be considered in deciding whether the accused is indigent. Only the accused's financial circumstances measured by the monetary standards set out in this rule shall be used as the basis for determining indigence.

Indigence Determination Proceedings

The appointing authority can require the accused to respond to questions about the accused's financial status, produce documentation supporting the financial information provided, and/or order a court official to verify the financial information provided. Tex. Code Crim. Proc. Art. 26.04(n). A request by the appointing authority for more information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I, II, and IV of these rules and contained in the Code of Criminal Procedure Article 1.051.

An accused determined by the Court 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. Tex. Code Crim. Proc. Art. 26.04(p).

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 State’s attorney, or by the Court sua sponte. The Court will presume that the accused's indigent status has not changed. However, the presumption can be rebutted in the review proceedings based on the following:

1. Evidence of a material change in the accused's financial circumstances, because of which the accused does not meet any of the standards for indigence contained in these rules; or

2. Additional information about the accused's financial circumstances that shows that the accused does not meet the standards for indigence contained in these rules.

Tex. Code Crim. Proc. Art. 26.04(p).

If an accused previously determined to be indigent is later found not to be, the attorney shall be compensated by the county as described in the fee schedule set out in this Plan. If the Court determines that an accused has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and fees, the Court shall order the accused to pay during the pendency of the charges or, if convicted, as Court costs the amount that it finds the accused can pay. Tex. Code Crim. Proc. Art. 26.05(g) & (g-1).

If the information obtained from the Request for Appointment of Counsel fails to establish that the accused is indigent, the Court will deny the request. The Court will cause the original Request for Appointment of Counsel to be filed and a copy to be given to the accused.

If the accused is indigent, counsel will be appointed according to the terms of this Plan. The determination of indigency can be re-evaluated if the accused's financial circumstances change as set out above.

If adversarial judicial proceedings have been instituted against an indigent accused, 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 person is released from custody before counsel is appointed, counsel will not be appointed until the first court appearance or the initiation of adversarial judicial proceedings, whichever occurs first.

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, meets or exceeds the objective qualifications set by the Court, or has been selected as a Contract Defender as described in Part V herein. All attorneys who are qualified as described 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 for at least one year, or otherwise be supervised by, or in association with, an attorney who has been in private practice for a minimum of 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 and procedure Continuing Legal Education (CLE) updates and seminars as may be required by law, but in no event less than six hours of CLE per year from these CLE areas (1 Tex. Admin. Code § 174.1), and

4. By October 15 each year, submit 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 to the Texas Indigent Defense Commission and to the county court administration office using the online form. Tex. Code Crim. Proc. Art.26.04(j)(4).

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 the attorney is appointed. Attorneys who satisfy the standards set forth above will be presumed to be competent and qualified.

Exceptions

The Court, in proper circumstances, 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 the attorney's competence to handle a particular case. There are no exceptions in capital cases.

Appointment

The Court or the Court's designee will appoint counsel for eligible defendants pursuant to this Plan, which is designed to ensure that all indigent defendants receive competent representation. Tex. Code Crim. Proc. Art. 26.04. All attorneys appointed under this Plan will be notified immediately of the appointment and reminded of their duty to attempt to contact the accused by the end of the next business day.

Capital Cases

No exceptions to attorney qualifications will be entertained in 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 judicial region.

            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 and procedure C.L.E. updates and seminars as may be required by law, but in no event less than six hours of C.L.E. per year from these C.L.E. areas (1 Tex. Admin. Code § 174.1); and 

4)         by October 15th each year, submit 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.  Tex. Code Crim. Proc. Art.26.04(j)(4).

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 accused'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. Tex. Code Crim. Proc. Art. 1.051(c).

If the accused is released from custody before counsel is appointed, appointment is not required until the accused's first court appearance or the initiation of adversarial judicial proceedings, whichever comes first. Tex. Code Crim. Proc. Art. 1.051(j).

Appointment Authority

If no case has been filed in the trial court, the appointing authority for misdemeanors is the County Judge.

If no case has been filed in the trial court, the appointing authority for felonies is the District Court Judge.

If the case has been filed in the trial court, the appointing authority is the Judge of the court in which the case has been filed.

Out-of-County Warrants

If an indigent accused is arrested in another county based on this county's warrant, counsel will be appointed within three working days of the appointing authority’s receipt of the request for counsel. Tex. Code Crim. Proc. Art. 1.051(c)(1).

If an accused is arrested in Scurry County or Borden County on another county's warrant, counsel will be appointed if, on the eleventh day after the arrest, the accused is still in Scurry County’s or Borden County’s custody. Tex. Code Crim. Proc. Art. 1.051(c-1).

Availability of Forms

If an accused wishes to request counsel before 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 accused may submit these forms to the County Judge for misdemeanor offenses or to the District Judge for felony offenses. The Court will rule on all requests for counsel submitted in this manner.

Defendant Appearing Without Counsel

If an accused appears without counsel in any adversary judicial proceeding that may result in punishment by confinement:

1. The Court may not direct or encourage the accused to communicate with the attorney representing the state until the Court advises the accused of the right to counsel and the procedure for requesting appointed counsel, and the accused has been given a reasonable opportunity to request counsel.

2. If the accused has requested appointed counsel, the Court may not direct or encourage the accused to communicate with the attorney representing the state unless the appointing authority has denied the request and, after the denial, the accused:

a. Has been given a reasonable opportunity to retain and has failed to retain private counsel; or

b. Waived or has waived the opportunity to retain private counsel.

Tex. Code Crim. Proc. Art. 1.051(f-2).

Waiver of the Right to Counsel

An accused may voluntarily and intelligently waive the right to counsel. A waiver obtained in violation of sub-section 2 above is presumed invalid.

If an accused wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the Court shall advise the accused of the nature of the charges against the accused. If the accused is proceeding to trial, the Court shall warn the accused of the dangers and disadvantages of self-representation. If the Court determines that the waiver is voluntarily and intelligently waived, the Court shall provide the accused with a statement substantially in the following form, which, if signed by the accused, shall be filed with and become part of the record of the proceedings.

"I have been advised this ___ day of ____, 20___, by the (name of Court) Court of my right to representation by counsel in the case pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the Court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel. (signature of defendant)" Tex. Code Crim. Proc. Art. 1.051(g).

An accused may withdraw a waiver of the right to counsel at any time, but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel. If the accused withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel with 10 days to prepare. Tex. Code Crim. Proc. Art. 1.051(h).

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.  Tex. Code Crim. Proc. Art.1.051(c).

                              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.  Tex. Code Crim. Proc. Art. 1.051(j).

                            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.  Tex. Code Crim. Proc. Art. 1.051(c-1).

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.  Tex. Code Crim. Proc. Art. 1.051(c-1).

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.  The court will rule on all requests for counsel submitted in this manner.

C.  Defendants Appearing Without Counsel - If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement:

i. The Court may not direct or encourage the defendant to communicate with the attorney representing the state until the court advises the defendant of the right to counsel and the procedure for requesting appointed counsel and the defendant has been give a reasonable opportunity to request counsel.

ii. If the defendant has requested appointed counsel, the court may not direct or encourage the defendant to communicate with the attorney representing the state unless the appointing authority has denied the request and, subsequent to the denial, the defendant:

1.  Has been given a reasonable opportunity to retain and has failed to retain private counsel; or

2.  Waived or has waived the opportunity to retain private counsel.

Tex. Code Crim. Proc. Art. 1.051(f-2).

D.  Waiver of the Right to Counsel

i. A defendant may voluntarily and intelligently waive the right to counsel.

ii. A waiver obtained in violation of section IV. C. above is presumed invalid.

iii. If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the 

defendant is proceeding to trial, the dangers and disadvantages of self-representation. If the court determines that the waiver is voluntarily and intelligently waived, the court shall provide the defendant with a

statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings.

“I have been advised this ___ day of ____, 2___, by the (name of court) Court of my right to representation by counsel in the case pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel. (signature of defendant)”  Tex. Code Crim. Proc. Art. 1.051(g).

    iv. A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of

counsel. If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.  Tex. Code Crim. Proc. Art. 1.051(h).

In appointing counsel following 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 the attorney is appointed. Attorneys who meet the standards set forth below will be presumed competent and qualified. The Court, in a proper circumstance (but never in a capital case), may consider exceptions to these qualifications and appoint an attorney who does not meet them if the attorney has other qualifications or experience that establish his competency to represent those accused of misdemeanor and felony criminal offenses.

Scurry and Borden County Capital Felony Cases

The Regional Public Defender for Capital Cases (RPDCC) 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 than the RPDCC, co-counsel will be appointed using the standards and procedures stated in this Section.

The RPDCC 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. Acceptance of the appointment would violate the maximum allowable caseloads established for the Office, or

 

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

Tex. Code Crim. Proc. Art. 26.04(a) & (f).

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.

Scurry County Juvenile and Non-Capital Cases

For cases in which there is no conflict of interest, the contract defender for felony cases will be appointed to represent indigent individuals accused of felony offenses, and the contract defender for misdemeanor cases will be appointed to represent indigent individuals accused of misdemeanor offenses. Contract defenders will be private attorneys, acting as independent contractors engaged by Scurry County to provide legal representation and services to indigent defendants and respondent children in the Scurry County Court and the 132nd Judicial District Court in Scurry County, Texas.

Contracting Authority

The contracting authority is Scurry County, Texas. The contracting authority may enter into a contract and obligate funds for the provision of indigent defense services.

The contracting authority shall seek applicants for the contract defender in accordance with the procedure governing alternative appointment programs set forth in Article 26.04 of the Code of Criminal Procedure.

 

Notification of Opportunity to Contract

The notification of the opportunity to apply (NOA) to be a contract defender shall be distributed in a manner that reasonably notifies all practicing members of the bar within the county or other region designated by the appointing authority. The notification shall inform attorneys of all requirements for submitting applications.

Opportunity to Respond to NOA

All potential contractors shall have the same opportunity to respond to the NOA and be considered for the award of a contract. All potential contractors shall have at least 30 days from the issuance of the NOA to respond. The appointing authority may provide for less than 30 days to respond if a contract needs to be awarded on an emergency basis. A contract awarded on an emergency basis may not exceed 90 days in duration.

Application

All applications must be submitted in writing and shall be kept by the appointing authority or contracting authority in accordance with the Texas State Library and Archives Commission Retention Schedule for Local Records-Local Schedule GR. 1 Tex. Admin. Code § 174.12.

Evaluation of Applications

Following the review of all applications, the appointing authority shall recommend to the contracting authority that a contract be entered into with the applicant selected to serve as the contract defender. Each attorney selected as a contract defender must meet the attorney qualification requirements contained in this Plan. The appointing authority shall reasonably and impartially consider at least the following factors when evaluating applications:

1. Experience and qualifications of the applicant,

2. Applicant's past performance in representing defendants in criminal cases,

3. Applicant's disciplinary history with the state bar,

4. Applicant's ability to comply with the terms of the contract, and

5. Cost of the services under the contract.

1 Tex. Admin. Code § 174.13 & Tex. Code Crim. Proc. Art. 26.04(g)(1)(D).

Contract Defender

In accordance with Article 26.04(h) of the Texas Code of Criminal Procedure, the contracting authority may approve the recommended contracting defender and enter into a contract for services. The contracting authority shall enter into a contract only if it complies with these standards and all applicable law governing professional services contracts entered into by counties. A contract shall not be awarded solely based on cost. 1 Tex. Admin. Code Chapter 174, Subchapter B.

Itemized Fee Voucher

The contract shall require the contract defender to submit an itemized fee voucher. The appointing authority must approve the voucher before forwarding it to the county financial officer for approval and payment. The contract shall also specify how a contract defender will be compensated for cases assigned but not disposed of within the term of the contract, as provided in 1 Tex. Admin. Code §174.19.

Borden County Juvenile and Non-Capital Cases

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. Tex. Code Crim. Proc. Art. 26.04(a). All attorneys who are qualified to handle criminal cases are deemed qualified to handle juvenile cases.

The appointing authority will appoint the attorney whose name appears first on the list, unless the Court makes a finding of good cause on the record for appointing an attorney out of order.

Good cause may include:

1. The accused requesting counsel does not understand or speak English, in which case the Judge will appoint the attorney whose name appears next in order and who speaks the accused's language, if such an attorney is available.
2. The accused has an attorney 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 new matter.

 

3. Providing immediate representation under exigent circumstances, and/or

 

4. Other good cause exists for varying from the order of the list.

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.

Attorney Qualifications

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 for 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 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 and procedure CLE updates and seminars as may be required by law.

4. By October 15 each year, submit 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 to the Texas Indigent Defense Commission through the online process using the online form prescribed by the Texas Indigent Defense Counsel and to the respective county in which the attorney was appointed.

             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 the attorney 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 represent those accused of misdemeanor and felony criminal offenses.  

SCURRY AND BORDEN COUNTY 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.

   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 the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in this Section.

2. 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.

Tex. Code Crim. Proc. Art. 26.04(a) & (f).

            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.

 

SCURRY COUNTY JUVENILE AND NON-CAPITAL FELONY CASES

Contract Defender

A.           For cases in which there is not a conflict of interest, the contract defender for felony cases will be appointed to represent indigent felony defendants, and the contract defender for misdemeanor cases will be appointed to represent indigent misdemeanor defendants.

B.          Contract defenders will be private attorneys, acting as independent contractors engaged by Scurry County to provide legal representation and services to indigent defendants and respondent children in the Scurry County Court and the 132nd Judicial District Court in Scurry County, Texas.   1 Tex. Admin. Code § 174.10.

C.       The contracting authority is Scurry County, Texas.  The contracting authority has the authority to conclude a contract and to obligate funds for the provision of indigent defense services.

D.       The contracting authority shall solicit applicants for contracting defender in accordance with the procedure governing alternative appointment programs contained in Article 26.04, Code of Criminal Procedure.

1 Tex. Admin. Code § 174.12.

E.           Following the review of all applications, the appointing authority shall recommend to the contracting authority to enter into a contract with the applicant selected to serve as contract defender. Each attorney selected as a contract defender must meet the attorney qualification requirements contained in this plan.  The appointing authority shall reasonably and impartially consider at least the following factors when evaluating applications:

1 Tex. Admin. Code § 174.13 & Tex. Code Crim. Proc. Art. 26.04(g)(1)(D).

F.          In accordance with Article 26.04(h), Code of Criminal Procedure, the contracting authority may approve the recommended contracting defender and enter into a contract for services. The contracting authority shall enter into a contract only if it complies with these standards and all applicable law governing professional services contracts entered into by counties. A contract shall not be awarded solely on the basis of cost.   1 Tex. Admin. Code § 174.14.

G.          Written Contract Requirements Pursuant to 1 Texas Administrative Code §§ 174.15 - 174.25

1. Each contract shall specify the term of the contract, including any provision for renewal, and a provision for terminating the contract by either party. 

2. Each contract shall specify the categories of cases in which the contract defender is to provide services. 

3. Each contract shall specify minimum qualifications for the contract defender covered by the contract and require such attorneys to maintain the qualifications during the term of the contract. The qualifications shall equal or exceed the qualifications provided in the indigent defense procedures adopted pursuant to Article 26.04, Code of Criminal Procedure.  

4. Each contract shall specify that the contract defender has the responsibility to complete all cases once representation is commenced during the term of the contract, unless a contract defender covered by the contract is relieved or replaced in accordance with Article 26.04(j)(2), Code of Criminal Procedure.

5. Each contract shall identify the contract defender who will perform legal representation in each category of case covered by the contract and prohibit the substitution of other attorneys without prior approval by the appointing authority. Nothing in the contract shall prohibit a contract defender covered by the contract from being relieved or replaced in accordance with Article 26.04(j)(2) of the Code of Criminal Procedure. 

6. Each contract shall set the maximum number of cases or workload the contract defender may be required to handle pursuant to the contract, which may include a maximum caseload not exceeding the annual full-time equivalent caseload established by the Guidelines for Indigent Defense Caseloads and the Juvenile Addendum and Appellate Addendum: Guidelines for Indigent Defense Caseloads, published by the Texas Indigent Defense Commission.

7. Each contract shall require that the contract defender provide zealous legal representation to all defendants in a professional, skilled manner consistent with all applicable laws and the Texas Disciplinary Rules of Professional Conduct.

8.  Each contract shall state a policy to assure that the contract defender does not provide representation to defendants when doing so would involve a conflict of interest. 

9. Each contract shall specify how investigation services and experts that might be necessary to provide competent representation will be made available in a manner consistent with Article 26.05(d), Code of Criminal Procedure. 

10. Each contract shall set the amount of compensation to be paid to the contract defender and the designated method and timing of payment. The contract shall state that the contract defender shall be required to submit an itemized fee voucher. The voucher must be approved by the appointing authority prior to being forwarded to the county financial officer for approval and payment. The contract shall also specify how a contract defender will be compensated for cases assigned but not disposed within the term of the contract as provided in 1 Tex. Admin. Code §174.19. 

A.          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. Tex. Code Crim. Proc. Art. 26.04(a).  All attorneys who are qualified herein to handle criminal cases are also deemed qualified to handle juvenile cases. 

B.          The appointing authority will appoint the attorney whose name appears first on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order.

C.          Good cause may include:

1.           The defendant requesting counsel does not understand and speak English, in which case the judge will appoint the attorney whose name appears next in order and speaks the defendant's language, if such attorney 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; 
3.           Providing immediate respresesntation under exigent circumstances; and/or
4.           Other good cause exists for varying from the order of the list.

E.             To qualify to be included in the rotating list of names of qualified attorneys, each attorney must:

1.           Be liccensed 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 and procedure C.L.E. updates and seminars as may be required by law.

4.         By October 15 each year, submit a statement that describes the percentage of the attorney's practice time that was dedicated to work based on appointment 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 to the Texas Indigent Defense Commission through the online process using the online form prescribed by the Texas Indigent Defense Counsel and to the respective county in which the attorney was appointed

Court-appointed counsel shall be compensated for all reasonable and appropriate services rendered in representing the accused. Compensation shall be reasonable for the time and effort spent. It shall be in accordance with a fee schedule adopted and approved by the judges of the county and district courts hearing criminal cases in the county. Tex. Code of Crim. Proc. Art. 26.05(a) & (b).

No payment of attorney fees will be made other than in accordance with the rules set forth below.

1. 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.
2. An appointed attorney may fill out and submit a fee voucher to the Court for services provided.

 

3. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.

 

           

Borden Scurry District and County Court Affidavit of Indigence.pdf (10/21/2025 1:48:57 PM) view
Borden Scurry District and County Court Attorney Fee Schedule.pdf (10/21/2025 1:52:51 PM) view
Borden Scurry District and County Court Attorney Fee Voucher.pdf (10/21/2025 2:03:44 PM) view
Borden Scurry District and County Court Contracts for Indigent Defense Services.pdf (10/21/2025 10:56:13 AM) view
Borden Scurry District and County Court Magistrates Warning Form.docx (2/2/2010 3:00:44 PM) view
Borden Scurry District and County Court Scurry-felony_contract.pdf (8/29/2024 2:24:08 PM) view
Borden Scurry District and County Court Scurry_misdemeanor_contract.pdf (8/29/2024 2:25:12 PM) view