Upshur Juvenile Board Plan
To implement the Texas Fair Defense Act, to the extent practicable, the following Plan is adopted by the Juvenile Board effective January, 14, 2010.
Rule 1 - General
The rules in this Part govern practice in the related Court in Upshur County notwithstanding any other local rule to the contrary.
Prompt Detention Hearings
Rule 2 - Prompt Appearance Before a Magistrate
The Juvenile Board of Upshur County will make supervisory personnel of all law enforcement agencies within their respective counties aware that each time a child is taken into custody pursuant to Texas and Federal law requires the law enforcement officer without necessary delay to either take the child to a juvenile processing office where the child may only be detained for six (6) hours and then released or taken to the Juvenile Probation Department. The child shall be processed by the Juvenile Probation Department intake unit and if not released by intake, to parent/guardian, then a detention hearing shall be held not later than the second working day. The intake officer 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. An attorney shall be appointed as soon as possible before the detention hearing or after the hearing if the juvenile was not represented at the initial hearing.
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.
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.
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.
Indigence Determination Standards
Rule 3 - Appointing Judge
(A) The Juvenile Board shall designate the Upshur County District Judge, County Judge, Justices of the Peace and Municipal Judges to be the appointing Judges for all children alleged to have engaged in conduct indicating a need for supervision or delinquent conduct. The duties of the appointing Judge include:
Follow Rule 5 to make an initial determination of whether the income and assets of the child’s parent or other person responsible for the child support must be used to ascertain whether the child is indigent;
Follow Rule 6 to select and appoint counsel to represent each indigent child; and
Follow Rule 7 to cause all interested parties to have notice of appointment decisions.
Appointing Judges shall complete these duties pursuant to the following timelines
of Texas Family Code Section 51.101:
Appointment of attorney immediately following the initial detention hearing except where the right to an attorney was presented by the Juvenile Judge at the initial detention hearing, and properly waived in writing by the juvenile and their parent, as described in 51.09 and 51.10 of the Texas Family Code.
The 115th District Court shall determine, on the filing of a Petition, whether the child’s family is indigent if:
the child is released by intake;
the child is released at the initial detention hearing; or
the case was referred to the Court without the child in custody.
Once the Court makes a finding of indigence above, the Court shall appoint an attorney to represent the child until the case is terminated, the family retains an attorney, or the Court appoints a new attorney.
For the children who are not detained, the District Court shall appoint an attorney within five (5) working days following the date the juvenile is served with a Petition of Adjudication (Texas Family Code 54.03) or discretionary transfer (Texas Family Code 54.02).
The 115th Judicial District Court shall appoint an attorney within five (5) working days following the date the Motion or Petition for Modification (Texas Family Code 54.05) is filed when seeking commitment to the Texas Youth Commission (TYC) or secure correction facility (Boot Camp). This appointment continues until the District Court rules on the Motion or Petition (Modification), the family retains their own attorney or a new attorney is appointed.
The appointing Judge may assign any of the duties stated in this Rule to a County
or District employee who is hired to address administrative matters associated
with indigent defense.
The Juvenile Board shall assign such staff to see that all juvenile detention centers are appointed counsel in a timely fashion as per these rules of the Texas Family Code. The assigned staff shall report violations to the board.
Rule 5 - Indigence Determinations
A person is "indigent" and thus qualifies for appointed counsel in this county if the income of the family total less than 150% of the federal poverty level for the family, or the family’s dependents currently receive food stamps, public housing, Temporary Assistance for Needy Families (TANF), or Medicaid, unless the family has net liquid assets work over $2,500.00 excluding the value of one vehicle (as under current Texas TANF law).
Minimum Attorney Qualifications
Rule 8 - Appointment Lists
The list for Upshur County shall consist of the name of all licensed attorneys residing or having an office for the practice of law in Upshur County, Texas, who meet the minimum objective qualifications set out herein and who have made application to be included on the list.
The appointing Judge shall maintain six (6) indigent defense appointment lists in this County:
Conduct Indicating a Need for Supervision.
A Delinquent Conduct, commitment to the Texas Youth Commission is not an authorized disposition as well as modification as such.
A Delinquent Conduct and Commitment to the Texas Youth Commission without a Determinate Sentence is an authorized disposition.
Proceeding regarding children with Mental Illness or Mental Retardation.
A Determinate Sentence proceeding.
A proceeding for Discretionary Transfer to Criminal Court.
An attorney may be included on a list only after the Judge of the 115th Judicial District Court approves adding the attorney’s name to the list, and only if the attorney:
Is a member in good standing of the State Bar of Texas;
Has read these Local Rules and pledges to diligently comply; and
Meets the minimum objective qualifications to remain on the list.
The minimum objective qualifications for inclusion on the list are:
For the 1,2,3 and 4 lists, the attorney is a member of the State Bar of Texas in good standing and has at least 6 hours MCLE in Juvenile Law per year.
For the 5 and 6 lists:
The attorney has at least three (3) years of experience in juvenile or criminal litigation;
The attorney has tried three (3) juvenile cases or criminal cases or any combination of both to a jury verdict as lead counsel.
Has at least 6 hours MCLE in Juvenile Law per year.
Each 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 Upshur County for adult criminal cases and juvenile delinquency cases for the prior twelve month period that begins on October 1st and ends on September 30th. The report must be submitted on the form prescribed by the Texas Indigent Defense Commission to the Upshur County Auditor's office.
Any attorney may apply to be placed on one or more of the six appointment lists by supplying the Juvenile Board with all of the information necessary for the Board to evaluate whether the attorney meets all requirements under this Rule. The Board will evaluate applications for placement on each list as needed, and a least quarterly. Names on each list will be ordered according to the date on which they are approved. The appointing Judge will remove an attorney’s name from a list if:
The Juvenile Board votes to remove the attorney;
The attorney fails to meet the minimum qualifications needed to remain on the list;
The attorney ceases to be an active member of the State Bar of Texas; or
The attorney requests removal from the list.
Rule 9 - Replacement of Appointed Counsel
A lawyer may be removed from an appointment upon satisfying the appointing Judge that the lawyer has good cause for being excused and that the client will not be prejudiced, in which case the Judge shall use Rule 6 to immediately appoint another qualified lawyer.
The Judge with jurisdiction over a juvenile case may replace appointed counsel after entering findings on the record showing good cause for the replacement and no prejudice to the child, including without limitation - current information about the child and charges indicates that counsel of different qualifications would be appropriate for the child under these rules.
The Judge with jurisdiction over a juvenile case will replace appointed counsel at the child’s request of (1) the child requests an attorney other than trial defense counsel for appeal or pots-adjudication habeas corpus proceedings; or (2) the child shows good cause for replacing appointed counsel.
Prompt Appointment of Counsel
Rule 4 - Appointment of Counsel
Prior to the detention hearing, the appointing Court shall inform the child of his/her right to counsel and the right to court appointed counsel if the child and his/her family are indigent pursuant to Texas Family Code Section 54.01(b).
Unless the court finds that the appointment of counsel is not feasible due to exigent circumstances, the court shall appoint counsel within a reasonble time before the first detention hearing is held to represent the child at that hearing.
All detained children shall have an attorney appointed by the appointing Court to represent them at the detention hearing pursuant to Texas Family Code Section 51.10(a). The attorney appointed by the Court shall represent the child at the hearings unless counsel is retained by the child’s parent/guardian.
The attorney appointed by the Court shall continue to represent the child until the case is terminated, the child’s family retains an attorney, or a new attorney is appointed by the Juvenile Court.
A. Appointment of Counsel for Children in Detention
i. 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.
ii. Prior to the initial detention hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the detention decision.
iii. If there is no parent or other responsible adult present, the court must appoint counsel or a guardian ad litem for the child.
iv. If the juvenile is detained, the child has an immediate right to counsel. If counsel has not already been appointed, the court must either appoint counsel or direct the juvenile’s parent or other responsible adult to retain an attorney promptly. The court may enforce an order to retain counsel by appointing an attorney to represent the child and requiring that the child’s parent or other responsible adult reimburse the court for attorneys’ fees.
v. Upon appointment, the court administrator shall notify the appointed attorney by fax, e-mail, or personal contact of the appointment and the scheduled hearing time and date.
vi. The appointed attorney shall make every reasonable effort to contact a child in detention by the end of the first working day after receiving the notice of appointment or to inform the court that the appointment cannot be accepted. Contacting the child in detention may be by personal visit (including contact during a detention hearing), by phone, or by video teleconference. Contacting the court may be by fax, email, phone or personal visit. A court-appointed attorney shall contact the child, in one of the ways mentioned above, no less than once every ten working days while the child remains in detention.
vii. An attorney appointed for a detention hearing shall continue to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court. Release of the child from detention does not terminate the attorney’s representation.
viii. Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.
B. Appointment of Counsel for Children not Detained at Intake
i. If the child is released from detention and if a petition to adjudicate or a motion to modify is filed, the juvenile court will use the financial forms gathered at intake to make a determination of indigence. If no financial information is available, the juvenile court shall promptly summon the child’s parent/guardian/custodian to the court so that financial information may be gathered for a determination of indigence.
ii. If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:
a. The date a petition for adjudication or discretionary transfer hearing has been served on the child; or
b. A motion to modify disposition seeking commitment to TYC or placing in secure correctional facility has been filed.
iii. If the family does not qualify for appointed counsel or if the parent or guardian is not available, and the family fails to provide an attorney, the juvenile court may appoint an attorney in any case in which it deems representation necessary to protect the interests of the child.
iv. The prosecuting attorney/court clerk shall notify the juvenile court upon the filing of and return of service of a motion to modify or the return of service of a petition for adjudication or discretionary transfer.
Attorney Selection Process
Rule 6 - Selection and Appointment of Counsel
(A) The appointing Judge will identify which one of the appointment lists specified in Rule 8 below best correspond to the known information about the accusations against each indigent child.
The appointing Judge will appoint the lawyer whose name appears next in order of the list so identified unless:
The child does not understand English, in which case the Judge will appoint the next lawyer who both appears next in order on the list and speaks the child’s language (if one is available); Where a trial court is required to change counsel for good cause shown of written record;
Judge exercises discretionary authority to appoint one of the attorneys whose name is among the next five names on the list; or
In unusual circumstances, the appointing Judge enters a written finding of good cause on the notice appointing any qualified willing attorney regardless of whether the attorney’s name is on the list.
Each time a lawyer is appointed out of order under the preceding paragraph, the lawyer who is appointed out of order shall not be appointed to a new case until all other eligible lawyers on that wheel have received an equal number of appointments.
Each attorney appointed under this rule is to represent the child through trial and appeal or including habeas corpus, until removed or replaced by court order or the child’s family retains an attorney.
Where a child has had an attorney appointed in a pending delinquency matter, the same lawyer appointed on the prior pending case shall be appointed on the new case, if the child then qualifies for appointment. If any attorney is appointed under this rule, and that attorney is not qualified for the new case, the Judge shall appoint either a second attorney who is qualified or appoint proper qualified counsel to the new case.
The Chief Juvenile Probation Officer shall maintain a list of qualified attorneys by alphabetical order. Upon a child being found indigent, the Administrator shall inform the appointing court of the next name on the list.
Rule 7 - Notice of Appointment Decisions
If the appointing Judge finds that a child is not indigent under Rule 5 (A) above, the appointing Judge will enter that finding on the form, cause it to be returned to the person, and cause a copy to be filed by the Clerk.
If the appointing Judge finds that a child is indigent, the Judge will give notice of appointment attached as an Order of Appointment to be issued to both the child and the appointed attorney, and to be filed with the District Clerk.
Notice to appoint counsel under this rule will be provided by telephone, facsimile, electronic mail, or some other similarly immediate means of communication.
When formal charges are filed against a child, the District Clerk shall file a copy of the application and order appointing the attorney.
Fee and Expense Payment Process
SCHEDULE OF 115TH DISTRICT COURT APPOINTED
Pursuant to Article 26.05(b), Texas Code of Criminal Procedure, the 115th District Court Judge hereby adopts this schedule of fees for the compensation of court appointed attorneys named on the 115th District Court Public Appointment List. It is ORDERED that compensation for attorney’s fees and expenses, submitted to the Court on the prescribed Attorney Fee Voucher, shall be on a case-by-case basis as determined by the Judge. It is further ORDERED that total compensation for appointed counsel services and expenses shall not exceed the following, unless the Court finds exceptional circumstances or that good cause for exceeding said total amount exists:
Guilty Plea $450.00
Motions to Revoke $450.00
Guilty Plea - Multiple Cases $500.00
Dismissal of Filed Case $250.00
Indictment Quashed $250.00
Pre-trial representation where case never filed $150.00
I. FELONY CASES (“Not guilty” or “Not true” pleas)
(Including Juvenile Cases Based on Charges of Felony Grade Laws and Felony Appellate Work)
A. Compensation for time spent by counsel out of court shall not be less than FIFTY-FIVE DOLLARS AND NO CENTS ($55.00) per hour nor more than SIXTY-FIVE DOLLARS AND NO CENTS ($65.00) per hour.
B. Compensation for time spent in court shall not be less than SIXTY-FIVE DOLLARS AND NO CENTS ($65.00) per hour nor more than SEVENTY FIVE DOLLARS AND NO CENTS ($75.00) per hour.
II. CAPITAL CASE COMPENSATION
In a capital case, in which the state seeks the death penalty, the rates for the lead attorneys services (first chair) shall be double the hourly rate provided above for non-capital felony attorney’s fees. Any co-counsel (second or third chair) appointed by the Court shall be paid at the same rate as for non-capital felony cases under this order. In capital cases, in which the state seeks the death penalty, the rates for the appeal attorney services shall be double the hourly rate provided above for non-capital felony attorney fees.
III: REIMBURSEMENT FOR REASONABLE EXPENSES FOR PURPOSES OF INVESTIGATION AND EXPERT TESTIMONY
A. In capital and non-capital felony criminal cases appointed counsel will be reimbursed for reasonable expenses that are incurred upon motion and application. Whenever possible prior court approval should be obtained before expenses are incurred. Reasonable expenses after motion and application may include expenses incurred or expected to be incurred for investigation and expert testimony, and will be in addition to the total compensation referred to in Section I of this Order. Said fees shall not exceed FIVE HUNDRED DOLLARS ($500.00) in total expert fees unless otherwise approved by the Court..
B. In capital felony criminal cases appointed counsel will be reimbursed for reasonable expenses that are incurred provided court approval has been granted upon motion and application. Reasonable expenses after motion
and application may include expenses incurred or expected to be incurred for investigation and expert testimony, and will be in addition to the total compensation referred to in Section II of this Order.
C. 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 reasonable incurred. Unreasonable or unnecessary expenses will not be approved.
IV. REQUEST FOR PAYMENT OF ATTORNEY’S FEES AND EXPENSES
Request for payment of fees and/or expenses shall be submitted to the Court on the prescribed Attorney Fee Voucher. The voucher shall be submitted to the Court on the date of disposition of a case by plea or bench trial, within fifteen days of the date of verdict in a jury trial, or within fifteen days of the date the mandate is returned on appeal. Request for payment of fees and/or expenses submitted to the Court after the dates listed above shall not be paid unless good cause is shown. Fees and/or expenses shall be paid only upon the termination of court appointed counsel’s representation. When the trial judge disapproves the amounts requested under an Attorney Fee Voucher, court appointed counsel and the Trial Court shall follow Section 25.05(c), Texas Code of Criminal Procedure.
SIGNED ON THIS THE 30th DAY OF JUNE, 2010, TO TAKE EFFECT JULY 1, 2010, AND SAID ORDER SUPERCEDES ANY AND ALL PRIOR STANDING ORDERS FOR ATTORNEY’S FEES AND OTHER EXPENSE COMPENSATION.
HONORABLE LAUREN PARISH
115th Judicial District Court
Rule 10 - Contact Between Appointed Counsel and Clients
To minimize costs to the County under these Rules, magistrates will ensure that the County’s Juvenile Probation Department knows how its policies may facilitate efficient communication between detained clients and attorney without compromising the security of any detention facility, including policies that minimize the time that attorneys must wait for their clients at the Juvenile Probation Department. Appointed counsel will make every reasonable effort to interview their clients before the end of the date after the date the appointment is made, not including weekends and state holidays. It is a Standing Order of the Courts that upon request, the Chief Juvenile Probation Officer of the Juvenile Probation Department shall permit contact visits between inmate detainees and their attorneys, (including any member of the attorney’s staff that the attorney find necessary), at such times as the attorney finds it necessary to effect assistance of counsel. Failure to do so shall be a contempt of court.
Upshur Juvenile Board Attorney Fee Schedule.doc (11/1/2010 10:09:38 AM) view
Upshur Juvenile Board Attorney Fee Voucher.doc (1/14/2010 1:44:04 PM) view