LOCAL RULES TO IMPLEMENT THE TEXAS FAIR DEFENSE ACT

 

STANDARDS AND PROCEDURES

RELATED TO APPOINTMENT OF COUNSEL FOR INDIGENT

JUVENILES IN LEE COUNTY

 

To implement the Texas Fair Defense Act (FDA, Acts 2001, 77th Leg.), the following Local Rules of Administration are adopted under Texas Local Government Code § 74.093, effective November 1, 2007:

 

A  Applicability

 

     The rules will govern procedures for appointment of counsel for indigent juveniles in Lee County, Texas.

A    Procedures for Timely Appointment of Counsel

 

       i.         Prompt Appearance Before a Magistrate.

 

1.      The magistrates of this county will inform supervisory personnel of all law enforcement agencies operating within the county that each time a person is arrested, Texas law requires the officer making the arrest and any officer who later has custody to ensure that the person is taken before a magistrate without unnecessary delay, and never more than 48 hours after arrest.

 

2.      The judges of this county will work with the magistrates, prosecutors, and law enforcement agencies in the counties to devise appropriate procedures for meeting the time standards set forth in Rule 2.01(a).

 

      ii.         Responsibilities of the Magistrate.

 

1.      Whenever an arrested person is first brought before a magistrate, the magistrate shall immediately perform the duties described in Article 15.17 of the Code of Criminal Procedure, including:

 

a)      The magistrate shall specifically inform the person arrested of the person’s right to request appointment of counsel if the person cannot afford counsel.

 

b)      The magistrate shall specifically ask the person arrested whether the person wants to request appointment of counsel.

 

c)      The magistrate shall specifically inform the person of the procedures for requesting appointment of counsel.

 

d)     The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the time of the Article 15.17 hearing.

 

e)      The magistrate shall ensure that the above information and assistance are provided in a manner and using terminology and language that the arrested person can understand.

 

f)       If the arrested person does not speak and understand the English language or is deaf, the magistrate shall ensure that the information and assistance are provided with the assistance of an interpreter consistent with Articles 38.30 and 38.31 of the Code of Criminal Procedure.

 

g)      If a magistrate has cause to believe that a person is not mentally competent to decide whether to request counsel, the magistrate will enter a request for counsel on the person’s behalf.

 

1)      In each case in which an arrested person is taken before a magistrate for an Article 15.17 hearing, the magistrate will make an electronic or written record documenting:

 

a)      that the magistrate informed the person of the person’s right to request appointment of counsel;

 

b)      that the magistrate asked the person whether the person wanted to request appointment of counsel; and

 

c)      whether the person requested appointment of counsel.

 

d)     The record required under Rule 2.02 may be combined on the same form used to record the arrested person’s request for appointment of counsel and to transmit that request to the person making the appointment.

 

e)      The records required under this Rule shall be maintained for the same period required for all official records of criminal court proceedings.

 

     iii.         Transmittal of Request for Appointed Counsel.

 

1.      If the person arrested requests appointment of counsel and has completed the necessary forms, the magistrate shall transmit or cause to be transmitted to the appointing judge or person(s) designated by the judges to appoint counsel the forms requesting appointment of counsel. The forms requesting appointment of counsel shall be transmitted without unnecessary delay and so that the person making the appointment receives the forms no later than 24 hours after the request is made.

 

     iv.         Prompt Appointment of Counsel.

 

1.      Counsel shall be appointed in the manner specified in Rule 4 below, as soon as possible, but not later than the end of the third working day after the date on which the appointing judge or person(s) designated by the judges to appoint counsel receives the Juvenile’s request for counsel. “Working day” means Monday through Friday, except for official state holidays.

 

2.   Prior to detention hearing, court must inform parents of child's right to appointed counsel if they are indigent. [Sec. 54.01 (b), FC]. 

A.    Definitions, as used in this rule:

                             i.             “Net household income” in the case of a child is the income of the child’s parents or other person determined responsible for the support of the child. 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 person determined responsible for the support of the child has no income or lesser income.

              ii.        "Non-exempt assests and property" means cash in hand, stocks and bonds, accounts at financial institutions, and equity in real or personal property that can be readily converted to cash, other than assets and property exempt from attachment under state law.

                            iii.            “Household” means all individuals who are actually dependent on the child’s parent(s) or person(s) deemed responsible for the support of the child, for financial support.

                            iv.            “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.    Financial Standards for Determining Indigence.

                                i.            A Juvenile is considered indigent if:

                The financial standards set forth below shall be used to determine whether a Juvenile is indigent and shall be applied equally to each Juvenile in the county. 

1.      The Juvenile's net household income does not exceed 125% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register; and

2.      The value of the non-exempt assets and property owned by the Juvenile:

      a) does not exceed $2,500.00;

      b) does not exceed $5,000.00 in the case of a Juvenile whose household includes a person who is age 60 or over, disabled, or institutionalized; or

      c) does not exceed double the estimated cost of obtaining competent private legal representation on the offense(s) with which the Juvenile is charged.

     

                            ii.              A Juvenile is considered indigent if, at the time of requesting appointed counsel, the Juvenile or the Juvenile's dependents have been to be eligible to receive

                       food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.

 

                           iii.             A Juvenile is considered indigent if the Juvenile:

                

                       1.      is currently serving a sentence in a correctional institution, is currently held in custody, is currently residing in a public mental facility, or is the subject of a 

                             proceeding in which admission or commitment to such a mental health facility is sought; and had no non-exempt assets of property in excess of the

                             amounts specified in Rule 3.02(a)(2).  

                           iv.             A Juvenile who does not meet any of the financial standards above shall nevertheless be detemined indigent if the Juvenile is otherwise unable to retain private counsel without substantial hardshipto the Juvenlie of the Juvenile's dependents, taking into account the nature of the criminal charge(s), the anticipated complexity of the defense, the estimated cost of obtaining competent private legal representation for the matter charged, and the amount needed for the support of the Juvenile nad the Juvenile's dependents.

  C.        Factors NOT to be considered:

1.   A Juvenile's posting of bail or ability to post bail may not be considered in determining whether the Juvenile is indigent.  Even when a Juvenile has posted bail, the Juvenile's financial circumstances are measured by the financial standards stated in this rule.

2.      The resources available to friends or relatives of the Juvenile may not be considered in determining whether the child is indigent. Only the Juvenile's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.

D.     Procedures for Determining Indigence:

             i.       As soon as possible following arrest, and in any event not later than the Article 15.17 hearing, (the person or agency designated in this rule by the judges) 

                     shall provide each arested person who wants to request appointment of counsel with a form apprvoed by the judges on which the arrested person will

                     provide under oath the necessary information concerning the person's financial resources and will indicate that the person requests appointment of counsel. 

                     The magistate shall provide th earrested person reasonable assistance in completing the form.

            ii.       The form requesting appoointment of counsel and containing the information concerning the arrest person's financial resources will be transmitted to the

                     appointing judge or person(s) designated by the judges to appoint counsel in accordance with Rules 2.03 and 4.06.

           iii.       The appointing judge or person(s) designated by the judges to appiont counsel will determine whether the person meets the financial standards for indigence

                     in Rule 3.02.  The determination will be recorded on the form requesting appointment of counsel and the form will be filed with the other orders in the case.

           iv.       The arrested person may be required by the magistrate, the appointing judge, or the judge presiding over the case to respond to examination regarding the

                     person's financial resources.

           v.       A written or oral statement elicited under this article or evidence derived from the statement may not be used for any purpose, except to determine the

                     Juvenile's indigence or to impeach the direct testimony of the Juvenile regarding the Juvenile's indigence.

          vi.       A Juvenile determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the Juvenile's financial

                    circumstances occurs.

         vii.       A Juvenile's status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court proceeding based on evidence of a material change 

                    in the Juvenile's financial circumstances.  A Juvenile's status as indigent or not indigent also may be reviewed in a formal hearing at any stage of a court

                    proceeding based on additional information regarding financial circumstances, subject to the presumption.  If a Juvenile previsously determined to be indigent

                    subsequently is determined not to be indigent, the attorney shall be compensated by the county in accordance with these Rules for time reasonably expended

                    on the case.

E.     Payment by Juvenile.

      A court that finds that a criminal Juvenile has financial resources to offset, in part or in whole, the costs of legal services provided under these Rules may order the Juvenile to pay the county that portion of the costs of legal services provided that it finds on the record that the Juvenile is able to pay.

 

A.                Attorney Qualifications:

 

1.           Establish objective qualification standards for attorneys for three levels of conduct [Sec. 51.102(a),(b)(2), FC]

 

              a) Conduct indicating a need for supervision or delinquent conduct (no TJJD possible);

 

              b) Delinquient conduct (TJJD possible); and

 

              c) Determine sentence or discretionary transfer to criminal court proceeding shave been initiated. 

 

2.                 Attorneys may apply to be placed on the list of Term Assignment Attorneys and/or the Individual Case Appointment Attorney list. Since the judge is thoroughly familiar with the attorneys currently providing legal services for indigent Juveniles, those attorneys are deemed to have met the qualifications.

 

a)      To be eligible to be placed on the list of Term Assignment Attorneys and/or the Individual Case Appointed Attorney list attorneys must have met the following minimum qualifications:

 

1)      Currently Licensed and in good standing with the State Bar of Texas;

 

2)      Practiced in the area of criminal law for at least three years, and in the Lee County Court for at least one year;

 

3)      Exhibited proficiency and commitment to providing quality representation to criminal Juveniles;

 

4)      Exhibited professionalism and reliability when providing representation to criminal Juveniles;

 

5)      Maintain an average of 6 hours a year of continuing legal education courses relating to juvenile law as recognized by the State Bar of Texas; and

 

6)      Have tried to verdict at least five criminal jury trials as lead counsel or as second chair counsel.

 

b)      To be eligible to be appointed to an appeal of a case, an attorney must:

 

1)      Have met the qualifications set forth in paragraphs (1) through (5) of the requirements for placement on the Term Assignment and Individual Case Appointment list; and

 

2)      Have met at least one of the following criteria:

 

·         be currently board certified in criminal law by the Texas Board of Legal Specialization;

 

·         have personally authored and filed at least 2 criminal appellate briefs or post-conviction writs of habeas corpus.

 

B.                  4.05 Removal of Attorneys by the Judge.

 

1.                  An attorney may be removed by the county judge whenever the judge determines that the attorney no longer meets the objective qualifications for appointment or is not fully competent to adequately handle the cases assigned.

 

C.                4.06 Assignment of Attorneys.

 

1.                  The following method shall be used to assign an attorney to represent individual Juveniles:

 

a)      At any given time, the county judge or his/her designee will appoint counsel for eligible Juveniles.

 

b)      The appointing judge or designee will:

 

1)      receive all requests for appointment of counsel transmitted by the magistrate as provided in Rule 2;

 

2)      determine whether each Juvenile requesting appointed counsel is indigent, as provided in Rule 3;

 

3)      select and appoint the appropriate counsel to represent each indigent Juvenile as provided in these Rules; and

 

4)      cause all interested parties to be notified of the appointment as provided in Rule

 

c)      Each attorney appointed under these Rules to represent the Juvenile in the trial court is appointed to represent the Juvenile through trial and post-trial proceedings in the trial court.

 

d)     At the conclusion of all proceedings in the trial court, including post-trial motions, if an indigent Juvenile wishes to file an appeal, the appointing judge or person(s) designated by the judge to appoint counsel will appoint the lawyer whose name appears next in order on the Appellate List.

   

C.                4.06 Assignment of Attorneys.

             1.  Attorneys are required to submit by October 15 each year the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in this county for adult criminal and juvenile delinquency cases.  The report must be made on a form prescribed by the Texas Indigent Defense Commission for the prior 12 months that begins on October 1 and ends on September 30.

 

A.    Notice of Appointment, Determination, and Contact with the Juvenile

                                            i.      Notice of Determination that the Juvenile is Not Indigent.

                           1.  If the person making the appointment determines that a person who requests appointment of counsel is not indigent under the

                                standards and procedures described in Rule 3, he or she will enter that finding on the person’s counsel request form, cause it to be

                                returned to the person, and cause a copy to be filed with the other orders in the case. 

                             B.     Notice of Determination that the Juvenile is Indigent and Appointment of Counsel.

                                            i.      If the person making the appointment finds that a person who requests counsel is indigent, he or she will cause all information in the notice of appointment to be issued to the appointed counsel and to the indigent person, and to be filed with the orders in the case. Appointed counsel will be notified by at least one of the following methods: telephone, facsimile, electronic mail, in person, or other immediate means of communication.

 

 

                 C.  If the child was not represented by an attorney at the detention hearing and determination was made to detain the child, the child shall immediately be entitled to

                       representation by an attorney.  [Sec. 51.50(c) FC]

 

                 D.  Unless the court finds that the appointment of counsel is not feasible due to exigent circumstances, the court shall appoint counsel within a reasonable time before the first detention hearing is held to represent the child at that hearing.

 

                 E.  If not detained, counsel must be appointed on or before 5th working day after the date the petition for adjudication, motion to modify, or discretionary transfer

                       hearing was served. [Sec. 51.101(c)-(d), FC]

A.    Selection and Appointment of Counsel

 

i.                    Method of Appointment.

 

1.                  Attorneys shall be appointed to represent indigent Juveniles using a “Term Assignment Method” or an “Individual Case Appointment Method” as further described in this rule.

 

ii.                  Term Assignment Method:

 

1.                  All attorneys who desire to be appointed to represent criminal Juveniles must apply to the judge of the county court for consideration to be listed as a Term Assignment Attorney. The number of names to be maintained on the Term Assignment Attorney list will be determined by the county judge based on the need for appointed counsel.  A “Term Assignment Attorney” is a private attorney and/or attorneys, compensated with public funds in an amount to be set by the county judge (such amount to be a flat fee for a specified period of time), assigned to provide legal representation and services to all indigent Juveniles who appear before the county court during a specified period of time.

 

iii.                Individual Case Appointment Method:

 

1.                  A private attorney, compensated with public funds, may be appointed to provide legal representation and services to an individual indigent Juvenile from a list of attorneys to be maintained by the county judge. 

B.  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; or

   4. The Office shows other good cause for refusing appointment.

3. The Appointing Authority shall immediately contact the attorneys appointed by phone, fax, e-mail or in person and notify the attorneys of the appointment and the last known location of the defendant.

C.    Replacement of Apponted Counsel

                                i.            Attorney Request.

                                               1.    A lawyer may be relieved from an appointment upon satisfying the judge that the lawyer has good cause for being relieved and that the

                              client will nto be prejudiced.

               ii.      Judicial Determination.

                                               1. The judge presiding over a criminal case may replace appointed counsel after entering written findings in the record showing good cause 

                            for the replacement and no prejudice to the Juvenile, including without limitation:

 a)      current information about the Juvenile and the charges indicates that counsel of different qualifications is appropriate for the Juvenile 

             

                    iii.            Juvenile Request.

                               1. The judge presiding over a the trial court proceedings will replace appointed counsel at the Juvnile's request if: 

 a)   The Juvenile requests an attorny other than trial defense counsel for appeal or post-conviction habeas corpus proceedings; or

 b)      The Juvenile shows good cause for replacing appointed counsel, including counsel’s persistent or prolonged failure to communicate

        with the Juvenile.

                    iv.            Appointing Replacement Counsel.

                               1. Whenever appointed counsel is replaced under this Rule, replacement counsel immediately shall be selected and appointed in

                            accordance with these rules.              

 

A.    Attorney Fee Schedule and Compensation of Term Assignment Attorneys

 

i.           Fee Schedule.

 

A.          The county pays assignment attorneys as part of District Court's Court Approved Attorney Contract.

 

A.    Attorney Fee Schedule and Compensation of Individual Case Appointed Attorneys

 

i.           Fee Schedule.

 

A.          The county will pay appointed counsel for all time reasonably necessary for adequate representation of the Juvenile, as approved by a judge, according to the following fee schedule adopted as provided under Article 26.05(b) of the Code of Criminal Procedure:

 

1.      A minimum of $75 an hour and a maximum of $150 an hour, or a total fixed fee as set forth below:

 

a)      Case which results in a plea of guilty: $400

 

b)      Case which results in a trial: $500 a day, plus up to $1,000 pretrial

 

ii.         Judicial Determination of Attorney Compensation.

 

A.          The judge presiding over the case for which the appointed attorney seeks compensation will use the following procedures to review and approve the appropriate compensation:

 

1.      The appointed counsel must submit to the presiding judge a form approved by the judges for itemizing the services performed.

 

2.      The presiding judge hearing a motion under this Rule will either approve the amount requested or enter written findings stating the amount of payment that the judge approves and each reason for approving an amount different from the requested

 

3.      c) An attorney whose request for payment is disapproved may appeal the disapproval by filing a motion with the presiding judge of the administrative judicial region, as provided under Article 26.05(c) of the Code of Criminal Procedure.

 

4.      Counsel appointed in a case shall be reimbursed for reasonable and necessary expenses, including for investigation and for mental health and other experts.  Expenses incurred with and without prior court approval shall be reimbursed, according to the procedures set forth below. When possible, prior court approval should be obtained before incurring expenses for investigation and for mental health and other experts.

 

a)      Procedure With Prior Court Approval:

 

                                                                         I.            Appointed counsel may file with the trial court a pre-trial ex parte confidential request for advance payment of investigative and expert expenses. The request for expenses must state, as applicable:

 

1)      the type of investigation to be conducted or the type of expert to be retained;

 

2)      specific facts that suggest the investigation will result in admissible evidence or that the services of an expert are reasonably necessary to assist in the preparation of a potential defense; and

 

3)      an itemized list of anticipated expenses for each investigation or each expert.

 

B.           The court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:

 

1.      State the reason for denial in writing;

 

2.      Attach the denial to the confidential request; and

 

3.      Submit the request and denial as a sealed exhibit to the record

 

b)      Procedure Without Prior Court Approval:

 

                                                                         II.            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.

 

Lee Juvenile Board Attorney Fee Voucher.doc (1/27/2010 11:07:16 AM) view
Lee Juvenile Board Attorney's Fees.docx (3/14/2011 3:54:52 PM) view