El Paso Juvenile Board Plan

10/20/2023

 

Preamble

 

To implement the Texas Fair Defense Act, the following Rules of Administration are adopted pursuant to Texas Family Code §51.102 and are effective as of Jan. 1, 2002.

 

El Paso County, Texas Juvenile Board Appointment of Counsel Plan to Represent Indigent Juveniles

  

KEY TERMS AND STATUTORY CODES:

 

The term “Judge” or “Juvenile Court Judge” means the judge of the juvenile court pursuant to Texas Family Code §51.02(5).

           

The term “Juvenile Court” means a court designated pursuant to Texas Family Code §51.04 to exercise jurisdiction over proceedings under Title 3 to the Texas Family Code.

           

The term “Juvenile Court Referee” means a referee appointed by the Juvenile Board pursuant to Texas Family Code §51.04(g) and who is authorized to hear juvenile cases pursuant to Texas Family Code §54.10.

 

The term “Public Defender” means the Public Defender of El Paso County, Texas authorized by El Paso County Commissioners Court.

                 

The term “Rotation System” means attorneys are selected based on the order that their names appear on lists of qualified attorneys.

 

The term “responsible party” means the person, other than the parent or guardian of the child, who is responsible for the child’s support.

 

Rule 1-General

 

The rules in this Plan govern practice in the 65^th District Court, the designated Juvenile Court in El Paso County, notwithstanding any other local rule to the contrary.

Prompt Detention Hearings

10/20/2023

 

Rule 2-Prompt Appearance Before a Magistrate

 

(a)        The Juvenile Board, in cooperation with each law enforcement agency in El Paso County, shall ensure policies and procedures are in place to advise supervisory personnel of all law enforcement agencies within El Paso County that each time a child is taken into custody pursuant to Texas or Federal law, the law enforcement officer is required, without unnecessary delay, pursuant to §52.02 of the Texas Family Code, 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  El Paso County Juvenile Probation Department (located at 6400 Delta Drive, El Paso Texas, 79905).  The child shall be processed by the El Paso County Juvenile Probation Department Intake Unit.  If a child is not released to the child’s parent/guardian by the Juvenile Probation Department, then a detention hearing shall be held not later than the second working day after the child is taken into custody; provided however, that when a child is detained on a Friday, Saturday or listed holiday as adopted by the El Paso County Commissioners Court, then such detention hearing shall be held on the first working day after the child is taken into custody. 

 

When a child is brought into the El Paso County Juvenile Probation Department’s Intake Unit and is 1) released at intake or 2) released prior to the initial detention hearing and the case will proceed to the County Attorney’s office for formal charging (petition), then the child and the child’s parents shall be informed of the child’s right to request a court appointed attorney, if eligible. The Juvenile Probation Department will provide the financial assessment form only for those cases proceeding to a Detention Hearing for the purpose of determining indigence.

 

(b)      If the child is in custody and is not represented by retained counsel at the first detention hearing: the judge or referee’s determination of indigency shall be based on information collected by the El Paso County Juvenile Probation Department and/or based on evidence introduced at a hearing before the judge or referee.  Once appointed, the Court will provide the attorney representing the child with access to all written matter to be considered by the Court in making the detention decision.

 

 

Indigence Determination Standards

10/20/2023

 

Rule 3-Indigence Determinations

 

(a)        Procedures for Determining Indigency

 

When a child is brought into the El Paso County Juvenile Probation Department’s Intake Unit and is 1) released at intake or 2) released prior to the initial detention hearing, and the case will proceed to the County Attorney’s office for formal charging (petition), then  the child and the child’s parents shall be informed of the child’s right to request a court appointed attorney, if eligible. Only cases proceeding to a Detention Hearing shall be provided the financial assessment form by JPD for the purpose of determining indigence prior to the Detention Hearing. The information collected is then forwarded to the appointing judge to make an initial determination of indigency based on Rule 2 of this Plan.

 

 (b)       Financial Standards to Determine Indigency

 

A person is "indigent" and thus qualifies for appointed counsel in this County if the income of the family totals less than 100% of the federal poverty level for the family, the family’s dependents currently receive food stamps, public housing, Temporary Assistance for Needy Families (TANF), Supplemental Security Income or Medicaid However, a person is not “indigent” if the family has non-exempt assets worth over $2,500, excluding the value of one vehicle. Further, if TDFPS is the Managing Conservator of the child, the child qualifies as being indigent. In consideration of the 100% level, allowances for housing (actual mortgages or allowed rentals) and vehicle allowances appropriate to the County may be considered in determining indigency.

 

Minimum Attorney Qualifications

10/20/23

 

Rule 4-Appointment Lists

 

(a)        The appointing judge shall maintain the following two (2) indigent defense appointment lists in this County:

             

1.         All hearings not covered by list 2; and

2.         Determinate sentence proceedings and proceedings for discretionary transfer to criminal court.

 

(b)        All lists shall include the name of the County Public Defender such that the Public Defender shall receive no more than 50% of all appointments, and Rotation System Counsel shall receive no more than 50% of all appointments.  The Public Defender shall be appointed to all detention hearings unless there is a conflict of interest, as identified pursuant to the Texas Disciplinary Rules of Professional Conduct, or unless otherwise directed by the Juvenile Court.

 

(c)        An attorney may be included on the Rotation System list only after the Juvenile Board approves adding the attorney's name to the list, and only if the attorney:

1.         is a member in good standing of the State Bar of Texas;

2.         has read this Plan and the Texas Family Code, and pledges to diligently comply;

3.         meets the minimum objective qualifications to remain on the list, and

4.         any attorney that meets the qualifications of being appointed for adults under the county’s indigent defense plan shall automatically be considered as qualifying for appointment under this plan provided they meet the qualifications for appointment under this plan as stated herein below in (d).

 

(d)       The minimum objective qualifications for each of the two appointment Rotation System lists are:

 

1.         the attorney is a member in good standing of the State Bar of Texas,

(If child is detained, the Public Defender shall be appointed. If not detained, then Rotation System assigned counsel shall be appointed – Subject to Rule 5 of this document); and

2.         the attorney has attended at least 6 hours of continuing legal education pertaining to juvenile law during each 12 month reporting period.

3.         In addition, to the minimum qualifications noted in (d) (1-2) above, the attorney seeking to be on the list for determinate sentence and/or discretionary transfer cases must meet one of the following requirements:

 

i.          the attorney has at least three (3) years of experience in Juvenile Law or Criminal  Litigation;

ii.         the attorney has tried either by sitting as first chair or second chair three (3) juvenile determinate sentence and/or discretionary transfer cases; or

iii.        the attorney is board certified in either juvenile or criminal law or both by the Texas Board of Legal Specialization.

 

(e)        Any attorney may apply to be placed on one or more of the two appointment Rotation System lists by supplying this County's 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 at least quarterly.  In the interim period pending ratification by Juvenile Board, the Juvenile Court may tentatively approve of and appoint attorneys to cases.  Names on each list will be ordered according to the date on which they are approved.  The Juvenile Board may remove an attorney from any or all appointment lists if:

 

1.         the appointing judge removes an attorney from a case(s) and recommends to the Juvenile Board that the attorney be removed from any or all lists;

2.         the attorney fails to meet the minimum qualifications needed to remain on a list;

3.         the attorney ceases to be an active member of the State Bar of Texas; or

4.         the attorney requests removal from the list.

 

(f)        An attorney shall submit by October 15th each year beginning October 15, 2014, 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 September 30. The report must be submitted through (1) the online form to the Texas Indigent Defense Commission.

Prompt Appointment of Counsel

10/20/2023

 

Rule 5-Right to Counsel

 

Appointment of Counsel for Juveniles in Detention

 

The El Paso County Public Defender’s Office shall be appointed to represent juvenile respondents in all juvenile detention hearings except when the juvenile respondent has retained an attorney, or when a case involves multiple juvenile respondents.  When a case involves multiple juvenile respondents, the El Paso County Public Defender’s shall be appointed to represent only one of the juveniles and private counsel from the Rotation System schedule shall be appointed to represent the remaining juvenile respondents. 

 

If the child has met the indigency requirements, the El Paso County Public Defender’s Office will be appointed for all subsequent detention proceedings except in those cases where there are multiple juvenile respondents and the courts have appointed private counsel to represent them during the initial detention hearing.

 

Every child that is detained after the initial intake will be provided court appointed counsel not later than the second working day after the child is taken into custody; provided, however, that when a child is detained on a Friday or Saturday, or listed holiday as adopted by the El Paso County Commissioners Court, they will be provided court appointed counsel on the first working day after the child is taken into custody, if: (1) the child is not presented by an attorney (2) it is determined, after reviewing the income and assets of the child’s parents or other person responsible for the child’s support, that they will be financially unable to employ an attorney to represent the child; and (3) the child’s right to representation by an attorney: (A) has not been waived under §51.09 of the Texas Family Code; or (B) may not be waived under Subsection (b) of §51.10 of the Texas Family Code.

 

Appointment of Counsel for Juveniles Not in Detention

 

If a child was released at the initial detention hearing, or was released by the Intake Unit or referred to the juvenile court without being taken into custody, and a petition is then filed, the Juvenile Court, upon making a finding of indigence, shall appoint an attorney based on the pre-qualification of a family made by court staff at the time of filing, if possible, and in no event later than the 5^th working day after the date a petition has been served on the child. Court staff shall use the “Financial Assessment” form attached hereto as a plan document.  For cases released prior to attending a Detention Hearing, the financial assessment form is provided by the Juvenile Court staff at the time of filing and is presented to the court who then makes the determination whether a child qualifies for indigent representation.

 

If the child is already on judicial probation and a motion to modify is filed that seeks either revocation with commitment to the Texas Juvenile Justice Department or modification to require confinement in a secure facility, the Juvenile Court, upon making a finding of indigency shall appoint an attorney at the time of filing the motion to modify if possible, and in no event later than the 5^th working day after the date a motion to modify has been filed.

 

The El Paso County Public Defender’s Office represents all juveniles ordered to attend review hearings unless counsel is retained, or unless there is a conflict of interest as identified pursuant to the Texas Disciplinary Rules of Professional Conduct, or unless otherwise directed by the Juvenile Court.  If it is determined that a conflict of interest exists as identified pursuant to the Texas Disciplinary Rules of Professional Conduct, or unless otherwise directed by the Juvenile Court, a Rotation System attorney shall be appointed by the Juvenile Court.

 

Appeals

 

The El Paso County Public Defender’s Office 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 pursuant to §51.101(a) of the Texas Family Code.  The Public Defender shall also represent all children on appeals unless a conflict of interest appears, in which case(s) a Rotation System attorney shall be appointed by the Juvenile Court.

 

 

Rule 6-Appointing Judge

 

(a)        The Juvenile Board shall designate the Juvenile Court Judge or Juvenile Court Referee or other presiding judge sitting on behalf of either jurist to be the appointing judge for all children alleged to have engaged in conduct indicating a need for supervision or delinquent conduct.  The duties of the appointing judge include:

 

1.         Follow Rule 3 of this plan to make an initial determination of indigency based on the income and assets of the child’s parent or other person responsible for the child support to ascertain whether the child is indigent;

 

2.         Follow Rule 4 of this plan to select and appoint counsel to represent each indigent child; and

 

3.         Follow Rule 7 of this plan to cause all interested parties to have notice of appointment decisions.

 

(b)      Appointing judges shall complete these duties pursuant to the following timelines of Texas Family Code §51.101:

 

1.         Appointment at the initial detention hearing (Texas Family Code §51.101(a)); or  

 

2.         The Juvenile Court shall determine, on the filing of a petition, whether the child’s family is indigent if:

(i)         the child is released by Intake; or

(ii)        the child is released at the initial detention hearing; or

(iii)       the case was referred to the Court without the child in custody. 

 

Once the Court makes a finding of indigency as noted in Rule 3, the Court shall appoint an attorney to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the Court (See Texas Family Code §51.101(a)).

 

3.         For indigent children who are not detained, the Juvenile Court shall appoint an attorney at the time of filing the pleadings if possible and in no event later than five (5) working days following the date the child is served with a Petition for Adjudication (Texas Family Code §54.03) or Discretionary Transfer (Texas Family Code §54.02), pursuant to Texas Family Code §51.101(d). 

 

4.         The Juvenile Court shall appoint an attorney at the time of filing if possible and in no event later than 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 Juvenile Justice Department (TJJD), or secure correctional facility. This appointment continues until the Juvenile Court rules on the Motion or Petition (Modification), the family retains their own attorney, or a new attorney is appointed (Texas Family Code §51.101(e)).

 

The Appointing Judge may assign any of the duties stated in this Rule to one or more County employee(s) hired to address administrative matters associated with indigent defense.

 

(c)        The Juvenile Board shall assign such staff and the Board shall review all persons in the El Paso County Juvenile Probation Department to ensure that all children are appointed counsel in a timely fashion pursuant to these rules and all applicable rules and requirements of the Texas Family Code.

 

 

 Rule 7-Notice of Appointment Decisions

 

(a)        If the appointing judge finds that a child is not indigent under Rule 3, the appointing judge will enter that finding on the financial assessment form, cause it to be returned to the parent/guardian/other responsible person, and cause a copy to be filed by the district clerk.

 

(b)        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.

 

(c)        Notice to appointed counsel under this Rule will be provided by telephone, facsimile, electronic mail, or some other similarly immediate means of communication.

 

(d)       When formal charges are filed against a child, a copy of the application and Order of Appointment shall be filed by the district clerk.

 

 

Rule 8-Contact Between Appointed Counsel and Clients

 

The El Paso County Juvenile Board shall establish policy to ensure communication between children and their attorney without compromising the security of any detention facility, including policies that minimize the time that attorneys must wait for their clients at the El Paso County Juvenile Probation Department.  Appointed counsel will make every reasonable effort to interview their client before the end of the day after the date the appointment is made, excluding weekends and El Paso County Commissioners Court adopted holidays. It is a standing order of the designated Juvenile Court of El Paso County, Texas that upon request, the Chief Juvenile Probation Officer of the El Paso County Juvenile Probation Department shall permit contact visits between detainees and their attorneys, (including any members of the attorney’s staff that the attorney finds necessary) at such times as the attorney finds it necessary to provide assistance of counsel. Failure to do so shall be a contempt of court.

Attorney Selection Process

10/20/23

 

Rule 9-Selection and Appointment of Counsel

 

(a)        The appointing judge will identify which one of the appointment lists specified in Rule 4 best correspond to the known information about the accusations against each indigent child.

(b)        The appointing judge will appoint the attorney whose name appears next in order on the list so identified unless:

(1)        The child does not understand English or is deaf, in which case the judge will appoint the next attorney who both appears next in order on the list and is capable of communicating in a language understood by the child ( if one is available); or

(2)        The court makes a finding of good cause, on the record, which docket entry is made on the file, for appointing an attorney out of order; or

(3)        There is a conflict of interest as identified pursuant to the Texas Disciplinary Rules of Professional Conduct.

 

(c)        Each time an attorney is appointed out of order under the preceding paragraph, the attorney who is appointed out of order shall not be appointed to a new case until all other eligible attorneys on the Rotation System list have received an equal number of appointments, (except the Public Defender, so long as the Public Defender does not receive more than 50% of all cases)

 

(d)       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.

 

(e)        Each attorney appointed under this Rule is to represent the child through trial, habeas corpus, or until removed or replaced by court order or the child’s family retains an attorney.

 

(f)        Where a child has had an attorney appointed in a pending delinquency matter, the same attorney should be appointed to any new case, if the child then qualifies for appointment.

 

(g)        If any attorney is appointed under Rule 4 and that attorney is not qualified for the new case, the judge shall appoint qualified counsel on the new case.

 

(h)        The Court Coordinator or Coordinator’s designee shall maintain a list of qualified attorneys by alphabetical order; with every other name that of the Public Defender. Upon a juvenile being found indigent, the Court Coordinator or Coordinator’s designee shall inform the appointing judge of the next name on the Rotation System list. The attorney who is selected (if not the Public Defender) shall be removed from the Rotation System list until all other attorneys on the list have been appointed to represent a child.  An attorney remains on the list as next attorney until assigned a case.

 

(i)         Should appointed counsel withdraw due to conflict of interest or other reason other than that the juvenile has obtained counsel, the Court Coordinator or Coordinator’s designee shall inform the Juvenile Court of the next five names for the Court to select. The Court may select any one of the five attorneys, which includes the Public Defender in the manner set out in (a) above.

 

Rule 10-Replacement of Appointed Counsel

 

(a)        An attorney 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 4 to immediately appoint another qualified attorney.

 

(b)        The judge with jurisdiction over a juvenile case may replace appointed counsel after entering findings in the record showing good cause for the replacement and no prejudice to the child.

 

(c)        The judge with jurisdiction over a juvenile case will replace appointed counsel at the child's request if­:

 

1.         the child requests an attorney other than trial defense counsel for appeal or post­ adjudication habeas corpus proceedings; or

2.         the juvenile shows good cause for replacing appointed counsel.

 

Fee and Expense Payment Process

10/20/23

 

Rule 11- Fee Schedules Regarding the Rotation System and Public Defender

               

(a)        The Rotation System plan shall consist of one (1) attorney serving on a bi-weekly rotating basis, not to exceed two bi-weekly periods in a calendar year, whose charge shall be all cases of all non-detained juveniles through the disposition hearing in Title III proceedings of the Texas Family Code.  Each attorney shall be compensated at a fixed rate of three thousand five hundred dollars ($3,500.00) per each bi-weekly period.  Any attorney not compensated on a bi-weekly basis and is not employed by the El Paso County Public Defender's Office shall be compensated at the scheduled rates for attorneys on the Rotation System described in paragraph (c) below.

 

(b)      Appointed counsel of the Rotation System, other than attorneys compensated under the bi-weekly plan in Rule 11 (a),  shall be compensated for all work performed on behalf of a juvenile in all Title III proceedings of the Texas Family Code to include but not limited to trial court work, habeas corpus proceedings, appellate work and motions for rehearing.  Compensation for performing the following services is noted below:

 

(1)        time spent in juvenile court making an appearance on behalf of the juvenile as evidenced by a docket entry, time spent in an adjudication hearing (jury/non jury), and time spent in a proceeding in which sworn oral testimony is elicited;

 

(2)        reasonable and necessary time spent out of juvenile court on the case, supported by any documentation the juvenile court requires;

 

(3)        preparation of an appellate brief and preparation and presentation of oral argument to a court of appeals or the Supreme Court; and

 

(4)        preparation of a motion for rehearing.

 

(c)        Fee Schedule for Juvenile Cases outside of Rotation System:

 

(1)        The maximum hourly rate for courtroom appearances (trial court level) shall be $90.00 per hour.

 

(2)        The maximum hourly rate for non-courtroom related work shall be $75.00 per hour for time reasonably expended out of court.

 

(3)        The maximum hourly rate for (appellate level) research, preparation, motions, and writing of the brief shall be $85.00 per hour.

 

(4)        The maximum hourly rate for oral arguments in the Court of Appeals and/or the Supreme Court shall be $100.00 per hour.                               

 

(d)       Fee Schedule Maximums for Juvenile Law Attorneys

 

The fee paid to each attorney appointed to represent a juvenile shall not exceed the following amounts:

 

(1)        Juvenile charged with one or more felonies (though juvenile may ultimately stipulate/or be found delinquent for one or more misdemeanors) .…….. $2000.00

(2)        Juvenile charged with one or more misdemeanors ……………………….$800.00

(3)        Representation of a juvenile on appeal………………………………….. $2000.00

 

 

(e)        Payment Process

 

Counsel shall submit a payment request form itemizing services for all court appearances including jury trials.  The form shall itemize the services provided and the dates of the services.  The form shall set out separately the total time spent out of court and the total time spent in court representing the juvenile.

 

(1)        Counsel shall submit a payment request for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.  Expenses incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Articles 26.052 (f) and (g), of the Texas Code of Criminal Procedure and expenses incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052 of the Texas Code of Criminal Procedure.

 

(2)        If the judge disapproves the requested amount, the judge shall make written findings stating reason for approving an amount different from the requested amount.

 

(3)        An attorney may appeal disapproval of attorney fees to the presiding judge of the administrative judicial region.

 

(4)        The Commissioners Court shall pay the appointed counsel the amount approved by the presiding judge of the administrative judicial region that is in accordance with the fee schedule not later than 45 days after the date of an application for payment.

 

(5)        Payment of a fee in excess of the case maximums stated in paragraph (d) may be authorized in the following types of cases:

 

(1)        Extended case:  A case in which more time is reasonably required for total processing than the average case.

 

(2)        Complex case:  A case in which the legal or factual issues are unusual, thus requiring expenditure of more time, skill and effort than would be required in the average case.

 

(3)        In no event shall the hourly rate for in court and out-of-court rates specified above be exceeded.

 

(f)        Process of Obtaining Excess Payments:

 

1.       An attorney may obtain excess payments by certifying to the Juvenile Court that:

(a)        The case was extended, complex or both; and

(b)        Excess payment is necessary to provide fair compensation.

 

2.         On order to approve excess payments, the Juvenile Court must make the following findings:

(a)        The case was extended, complex, or both; and

(b)        Excess payment is necessary to provide fair compensation.

 

                        The Juvenile Court will consider the following factors:

 

i)         Responsibilities of the attorney measured by the magnitude and importance of the case.

ii)        Manner in which the attorney performed his/her duties.

iii)       The attorney’s knowledge, skill, efficiency and professionalism.

iv)        Judgment required of and used by the attorney.

v)         Nature of the attorney’s practice and harm to it due to this case.

vi)        Extraordinary pressure of time or other factors.

vii)       Any other relevant factors.

 

Approval or disapproval of excess payment request shall be processed as per paragraph (f).

        

Miscellaneous

10/20/23

       

These Rules of Administration were approved by a majority of the Juvenile Board at a meeting held after proper notice, and shall be published to all persons affected.

 

 

 

WITNESS THE FOLLOWING SIGNATURES AND SEALS:

 

 

El Paso County Juvenile Board:

 

           

By:                                                                                                      Date:                                      

JUDGE YAHARA L. GUTIERREZ, CHAIR

El Paso Juvenile Board Affidavit of Indigence.doc (7/28/2016 1:33:19 PM) view
El Paso Juvenile Board Attorney Application for Appointment.pdf (9/17/2015 1:33:16 PM) view
El Paso Juvenile Board Attorney Fee Schedule.pdf (9/17/2015 1:33:27 PM) view
El Paso Juvenile Board Attorney Fee Voucher.pdf (9/17/2015 1:33:36 PM) view
El Paso Juvenile Board El Paso Juvenile Board Magistrate's Warning Form.docx (10/24/2011 5:16:37 PM) view
El Paso Juvenile Board Magistrate's Warning Form.pdf (9/17/2015 1:34:06 PM) view
El Paso Juvenile Board Public Defender Plan or Proposal.pdf (9/17/2015 1:34:23 PM) view