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

 

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

 

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

 

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

A.    Definitions, as used in this rule:

                                i.            “Indigent” means a person who is not financially able to employ counsel.

                              ii.            “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.

                            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.     Eligibility for Appointment

                                i.            A child is presumed indigent if any of the following conditions or factors are present:

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

2.      The net household income of the child’s parent(s) or other person(s) determined responsible for the support of the child does not exceed 125% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register;

3.      The child’s parent(s) or other person(s) determined responsible for the support of the child is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought; or

                              ii.            The child who does not meet any of the standards above shall nevertheless be considered indigent if the child’s parent(s) or other person(s) responsible for the child is unable to retain private counsel without substantial hardship. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:

1.      the nature of the charge(s);

2.      anticipated complexity of the defense;

3.      the estimated cost of obtaining competent private legal representation for the matter(s) charged;

4.      the amount needed for the support of the child, the child’s parent(s)/person(s) responsible, and other dependents of the child’s parent(s)/person(s) responsible; 

5.      child’s parent(s’) income or the income of other person(s) determined responsible for the support of the child;

6.      source of income;

7.      assets and property owned by the child, child’s parent(s), or other person(s) determined responsible for support of the child;

8.      outstanding obligations;

9.      necessary expenses; and

10.  the number and ages of any siblings of the child.

                            iii.            Factors NOT to be considered in determining indigence:

1.      The resources available to friends or relatives of the child, other than the child’s parent(s) or other person(s) deemed responsible for the child, may not be considered in determining whether the child is indigent.

2.      Only the child's parent(s) or other person(s) responsible for the child and the child’s financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.

C.     Indigence Proceedings:

                                i.            The appointing authority can require the child and the child’s parent(s) or other person(s) responsible for the child to respond to questions about the child’s household financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.

                              ii.            Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:

1.      Determining if child is (or is not) indigent; or

2.      Impeaching direct testimony of the child or the child’s parent(s)/person(s) responsible regarding the child’s indigence.

                            iii.            A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules.

                            iv.            A child determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the child’s financial circumstances occurs.

1.      A child’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court. The child’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:

a.       Evidence of a material change in the child’s parent(s)/person(s) responsible and the child’s financial circumstances; or

b.      Additional information regarding the child’s parent(s)/person(s) responsible and the child’s financial circumstances that shows that they do not meet any of the standards for indigence contained in these rules.

2.      If a child previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.

                              v.            If the court determines that a child’s parent(s) or other person(s) responsible for the child has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the child’s parent(s) or other person(s) responsible for the child to pay during the pendency of the charges or, if found to have engaged in delinquent conduct or CINS, as court costs the amount that it finds the child’s parent(s) or other person(s) responsible for the child 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.    The appointing authority will identify which of the appointment lists, discussed in the attorney qualifications section, is most appropriate based on the accusations against the child and will appoint the attorney whose name is 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:

                                i.            The child requesting counsel does not understand English, in which case the judge will appoint the lawyer whose name appears next in order and speaks the clients’ language, if one is available;

                              ii.            The child 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;

                            iii.            An initial detention hearing is scheduled and the first attorney on the list is unavailable; or

                            iv.            Other good cause exists for varying from the list.

B.     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.

C.     Judicial Removal from Case:

                                i.            The judge presiding over a case involving a child may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, the following:

1.      Counsel’s failure to appear at a court hearing;

2.      Counsel’s failure to comply with the requirements imposed upon counsel by this plan;

3.      Current information about the child and the charges against the child indicate that another qualified attorney is more appropriate for the child under these rules;

4.      The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;

5.      The child requests an attorney, other than trial counsel, for appeal; or

6.      The child shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the child.

                              ii.            Appointment of Replacement Counsel - Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.

 

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.

 

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