Leon County Court Plan
WHEREAS, the County Court of Leon County, Texas seeks to ensure the indigent defendants continue to receive well qualified and knowledgeable legal representation by appointed attorneys; and
WHEREAS, the 77th Texas Legislature passed the “Fair Defense Act” effecting procedures and guidelines for the appointment of attorneys for indigent defendants by amending the Texas Code of Criminal Procedure, Sect. 6, Article 26.04 to become effective January 1, 2002;
NOW THEREFORE, BE IT RESOLVED that the Judge of the Leon County Court trying misdemeanor criminal cases in Leon County, Texas by formal action hereby;
1. Adopts standards for determining indigence;
2. Establishes procedures to compile a public appointment list of attorneys;
3. Adopts objective qualifications necessary for an attorney to be included on such a list; and
4. Establishes appointment procedures that shall ensure appointments are reasonably and impartially allocated among qualified attorneys
ACCORDINGLY, the Judge of the Leon County Court trying misdemeanor criminal cases in Leon County, Texas hereby ORDERS that this plan shall be incorporated into the local rules of the Leon County Court.
A. Arresting Officer’s Responsibilities:
1. The arresting officer, or the person having custody of the arrestee, shall ensure that every arrestee shall be brought before a magistrate without unnecessary delay; but no later than 48 hours after the person is arrested.
2. Unless arrested pursuant to an arrest warrant, bench warrant, capias, or other order of a magistrate or judge, necessary forms establishing probable cause must be completed and filed at the time an arrestee is booked into jail for any misdemeanor offense punishable by incarceration.
3. A person arrested for a misdemeanor without a warrant, and who is detained in jail, must be released not later than the 24th hour after arrest on a bond in an amount not to exceed $5,000.00, if a magistrate has not determined that probable cause exists to believe that the person committed the offense.
B. Release of Defendant postponed:
1. If requested by the State, a magistrate may postpone the release of a defendant for not more than 72 hours after the defendant’s arrest if a probable cause determination has not been made, in compliance with the procedure set forth in Article 17.033, of the Texas Code of Criminal Procedure.
C. Magistrate’s Duties:
1. At the Magistrates’ hearing, the magistrate should determine if the accused can speak and understand English, or if the defendant is deaf.
2. After making such determination, the magistrate shall, in an appropriate manner consistent with the Texas Code of Criminal Procedure Articles 38.30 and 38.31, do the following:
a. Advise the accused of the accusation against him/her, and any affidavit filed therewith;
b. Admonish the accused of the right to an attorney;
c. Admonish the accused of the right to remain silent;
d. Admonish the accused of the right to have an attorney present during any interview with peace officers or attorneys representing the State;
e. Admonish the accused of the right to terminate such interview at any time;
f. Admonish the accused of the right not to make a statement, and that any statement made may be used against him/her;
g. Admonish the accused of the right to an examining trial;
h. Inform the accused of the right to an appointed attorney if the accused cannot afford one, and the procedures for requesting that an attorney be appointed;
i. Inquire as to whether the accused is requesting that an attorney be appointed;
j. Provide the accused requesting appointment of an attorney with the necessary forms to be filled out, and ensure that reasonable assistance in completing them is provided to the accused at the time of the magistrate’s hearing;
k. If the magistrate has reason to believe the accused is not mentally competent, the magistrate shall enter a request for an appointed attorney on behalf of the accused. Such a request will alert the appointing authority that an attorney competent to represent a mentally ill person should be appointed.
l. For persons arrested on out-of-county warrants, the magistrate will ask the Defendant if he/she would like to request court-appointed counsel. The magistrate will record the response, and if counsel is requested, the magistrate will provide the arrestee with the appropriate forms for requesting counsel. The magistrate will ensure assistance in completing the forms at the same time. The forms will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made. Regarding the appointment of counsel, persons arrested in other counties on local warrants must be appointed counsel in the county that issued the warrant within three (3) working days of receipt of the request. Persons arrested on out-of-county warrants must be appointed counsel in the county of arrest if the person has not been transferred or released to the custody of the county issuing the warrant before the 11th day after the date of the arrest, [Art. 1.051 (c-1), CCP].
- In cases where the accused is arrested without a warrant, bench warrant, capias or other magistrate’s or judge’s order, the magistrate shall determine if there is probable cause to believe the accused committed the offense;
- The magistrate shall record the following:
a. The date and time the accused was arrested and the date and time when he/she was brought before the magistrate.
b. Whether the magistrate informed the accused of the right to request an appointed attorney, and asked the accused whether he/she wants to request one.
c. Whether the accused requested an appointment of an attorney.
- If the magistrate is not authorized to appoint an attorney, and if the accused requests such an appointment, the magistrate shall transmit or cause to be transmitted, the magistrate’s form and any other forms requesting the appointment to the Leon County Court, (the Appointing Authority). The forms requesting appointment of an attorney shall be transmitted without unnecessary delay; but no later than 24 hours after the request is made by the accused. If a request for an attorney was not made at magistration, the magistrate will forward the forms to the Leon County Court to be put in the case file.
Indigence Determination Standards
INDIGENCE DETERMINATION STANDARDS
A. Definitions to be used herein;
- “Indigent” means a person who is not financially able to employ an attorney.
- “Net household income” means all income of the accused and spousal income actually available to the accused. Such income shall include take-home wages and salary, (gross income earned less those deductions required by law or as a condition of employment), net self-employment income, (gross income less 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, 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 accused has no income or lesser income.
- “Non-Exempt Assets and Property” means cash on hand, stocks, bonds, and accounts at financial institutions.
- “Household” means all individuals who are actually dependent on the accused for financial support.
- “Costs of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and experts.
B. Eligibility for Appointment:
- An accused is presumed indigent if at the time of requesting an attorney, the accused or accused’s dependents are eligible for food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.
- An accused is also considered indigent if the accused meets any one of the following three criteria, AND meets the asset test set out in Number 3 below.
a. The accused net household income does not exceed 150% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register.
b. The accused is currently serving a sentence in a correctional facility, 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.
c. The difference between the accused’s monthly net household income and reasonable necessary expenses is less than $500.00. Reasonably necessary expenses should include, but are not limited to, rent, mortgages, food, groceries, car payments, car insurance, health insurance, medical bills, and utility bills.
3. In addition to meeting one of the criteria set out above, an accused is considered indigent only if the value of non-exempt property and assets owned by the accused does not exceed the greater of the following:
b. $5,000.00 in the case of an accused whose household includes a person who is 60 years of age or older, disabled, or institutionalized; or
c. Double the estimated cost of obtaining competent private legal representation for the offense with which the accused is charged.
4. An accused who does not meet any of the standards set out above my nevertheless be considered indigent if the accused is unable to retain private legal representation without substantial hardship to the accused or the accused’s dependents. In considering if obtaining a private attorney will create a substantial hardship, the appointing authority may take into account.
a. The nature of the criminal charge(s);
b. The anticipated complexity of the defense;
c. The estimated cost of obtaining a competent attorney for the offense charged;
d. The amount needed for the support of the accused and the accused’s dependents;
e. The accused’s income;
f. The accused’s sources of income;
g. Assets and property owned by the accused;
h. Outstanding obligations;
i. Necessary expenses;
j. The number and ages of all accused’s dependents; and
k. Any spousal income that is available to the accused.
The following factors shall not be considered in determining indigence:
a. The accused’s posting of bail or ability to post bail;
b. The resources available to friends or relatives of the accused.
C. Indigence Proceedings:
- The appointing authority can require the accused to respond to questions about the accused’s financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
- Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than determining if the accused is, or is not, indigent; or for impeaching direct testimony of the accused regarding the accused’s indigence.
- A request by the appointing authority for additional information, documentation, and/or verification cannot delay the appointment process beyond the timelines specified in the “Prompt Magistration and Prompt Appointment of Attorney” sections of these rules and contained in the Code of Criminal Procedure, Article 1.051.
- An accused determined to be indigent is presumed to remain so for the remainder of the case unless a material change in the financial circumstances of the accused occurs.
- An accused’s status as an indigent may be reviewed in a formal hearing at any stage of the Court proceedings; on a motion for reconsideration by the accused, the accused’s attorney, or the attorney representing the State. The accused’s indigent status will be presumed not to have changed. This presumption can be rebutted in a review proceeding based upon the following:
a. Evidence of a material change in the accused’s financial circumstances as a result of which the accused does not meet any of the standards for indigence contained in these rules; or
b. Additional information regarding the accused’s financial circumstances that shows that the accused does not meet any of the standards for indigence contained in rules.
- If an accused 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 in the case.
- If the Court determines that a defendant 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 defendant to pay during the pendency of the charges, or if convicted, as court costs the amount that the defendant is able to pay.
Minimum Attorney Qualifications
MINIMUM ATTORNEY QUALIFICATIONS
A. The Leon County Judge hearing misdemeanor criminal cases shall establish an attorney appointment list. To be eligible for the appointment list, an attorney must meet the following minimum requirements:
1. All attorneys on the appointment list must ensure that all information on their Application is correct.
2. The attorney making application must be a licensed practicing attorney, and a member in good standing with the State Bar of Texas.
3. The attorney making application shall complete a minimum of 6 hours CLE in the area of criminal law and procedure each year. All attorneys on the appointment list must file a certificate with Court Administration Office each year attesting to completion of the required CLE; or submit documentation showing that the attorney is certified as a specialist in criminal law. Continuing legal education activity completed within a one year period immediately preceding an attorney’s initial reporting period may be used to meet the educational requirements for the initial year. Continuing legal education activity completed during any reporting period in excess of the minimum 6 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only.
4. An attorney must have a minimum of one year experience in criminal law.
5. An attorney must have experience as a lead attorney in a least one criminal case tried to verdict in a jury trial; or have been a second chair in at least three jury trials tried to verdict.
6. The attorney’s signed, written acknowledgement and affirmation to that effect should be attached to the attorney’s application form.
7. An attorney may not have been the recipient of any public disciplinary action by the State Bar of Texas or any other attorney licensing authority of any State or the United States within the 3 years preceding the filing of the application.
8. An attorney making application to be placed on the appointment list must maintain a law office capable of receiving e-mail, fax, and telephone call; and must have the ability and capability to produce typed motions, orders, and other legal documents necessary for the practice of criminal law
9. An attorney on the appointment list shall notify the Leon County Judge promptly in writing of any matter which would disqualify him from receiving appointments to represent indigent defendants.
B. Appeal qualification requirements for attorney’s seeking appeal appointments must meet at least one of the following criteria:
1. Be currently board certified in criminal law by the Texas Board of Legal Specialization, or
2. Have personally authored and filed at least one criminal appeal brief or Post-Conviction Writ of Habeas Corpus, or
3. Have submitted an appellate writing sample approved by the Leon County Judge, or
4. Have worked as a briefing clerk of an appellate court for a period of at least one year.
C. Qualifications for attorneys seeking motion to revoke or motion to adjudicate appointments must meet the following criteria:
1. Must meet the minimum attorney qualifications set out in A; numbers 1-8 above; and
2. Be familiar with and have a working knowledge of Section 42.12 of the Texas Code of Criminal Procedure.
D. Qualification requirements for attorneys’ seeking Mental Health case appointments:
The Leon County Judge hearing mental health cases shall establish an attorney appointment list. To be eligible for these appointments, an attorney must meet the minimum qualification requirements set out above; and must also meet the following requirements;
1. The attorney shall complete a minimum of 1.5 hours of CLE in the area of mental health law each year; and must file a certificate with the Leon County Judge’s office each year attesting to the completion of the required hours. Continuing legal education activity completed during any reporting period in excess of the minimum 1.5 hours may be applied to the following year’s requirement.
2. An attorney shall be knowledgeable and competent in mental health law, and the applicable judicial processes.
E. Approval for appointment lists:
1. Misdemeanor List – All attorneys must be approved by the Leon County Judge hearing misdemeanor criminal cases.
2. Mental Health List – All attorneys must be approved by the Leon County Judge hearing mental health cases.
F. Removal from appointment lists:
The Leon County Judge shall monitor appointed attorney’s performance on a continuing basis to assure their competency. An attorney may be removed or suspended, as appropriate, from one or more appointment lists by the Leon County Judge.
G. Reinstatement to appointment lists:
1. An attorney who is removed from appointment list for non-completion of the required CLE hours may be immediately reinstated upon providing proof that the attorney has completed the required hours, and so long as the attorney otherwise meets the other qualifications under this Plan.
2. An attorney who has been removed from an appointment list for any other reason, and who wishes to be reinstated, must apply through the original application process.
H. Duties of an appointed attorney:
1. An appointed attorney shall notify the Court within 72 hours of the receipt of the appointment.
2. Make every reasonable effort to contact the defendant by the end of the first working day after the date of appointment; and to interview the defendant as soon as practical after appointment.
3. The appointed attorney shall represent the defendant until:
a. The charges are dismissed;
b. The defendant is acquitted;
c. Appeals are exhausted; or
d. The appointed attorney is relieved of his duties by the Court.
4. The appointed attorney shall investigate, either personally or through an investigator, the facts of the case, and be prepared to present any factual defense(s) that may be reasonably and arguably available to the defendant.
5. The appointed attorney shall brief the law of the case and be prepared to present any legal defense(s) that may be reasonably and arguably available to the defendant.
6. The appointed attorney shall be prepared to negotiate with the prosecutor for the most favorable resolution of the case as can be achieved through a plea agreement.
7. Be prepared to try the case to conclusion either with or without a jury.
8. Be prepared to file post-trial motions, give notice of appeal, and appeal the case pursuant to the standards and requirements of the Texas Rules of Appellate Procedure.
9. Shall maintain reasonable communication and contact with the defendant at all times and keep the defendant informed of the status of the case.
10.Shall advise the defendant on all matters involving the case, and such collateral matters as may reasonably be required to aid the defendant in making appropriate decisions about the case.
11.Perform the attorney’s duties owed to the defendant in accordance with these procedures, the requirements of the Code of Criminal Procedure, and applicable rules of ethics.
12.Shall manage the attorney’s casework load to allow the provision of quality representation and the execution of the responsibilities listed in these rules in every case.
13. An appointed attorney shall submit by October 15th each year a statement that describes the percentage of the attorney's practive time that was dedicated to work based on appointments accepted in this county for adult criminal cases and juvenile deliquency cases for prior 12 months that begins on October 1 and ends on September 30. The report must be submitted through (1) the online form to the Texas Indigent Defense Commission OR (2) the form prescribed by the Texas Indigent Defense Commission to the court administration office in the county.
Prompt Appointment of Counsel
PROMPT APPOINTMENT OF COUNSEL
A. Prompt appointment of an attorney:
- An attorney shall be appointed as soon as possible in indigent defendants; but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court-appointed attorney. Working day means Monday-Friday, excluding official holidays. An attorney must be appointed whether or not the case has been filed in the trial court.
- If a defendant is released from custody before the appointment of an attorney, the appointment of an attorney is not required until the defendant’s first court appearance or when adversarial proceedings are initiated.
- If the Defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission's website at http://tidc.tamu.edu/-public.net/. The Defendant may submit the completed, executed forms to the Leon County Judge's Office, (P. O. Box 429, Centerville, TX 75833, Tel. 903-536-2331). The Court will rule on all requests for counsel submitted in this manner.
- If an indigent defendant is arrested in another county based on Leon County's warrant, counsel will be appointed within three (3) working days of Leon County's receipt of the request for counsel from the arresting county.
- If a Defendant is arrested in Leon County based upon another county's warrant, counsel will be appointed for the Defendant by Leon County if, on the eleventh day after the arrest, the Defendant is still in Leon County's custody.
B. Defendant’s appearing without an attorney:
- If a defendant appears in court without an attorney in any adversary proceeding that may result in punishment by confinement the court may not direct or encourage the defendant to communicate with the State until the court advises the defendant of the right to an attorney, and the procedure for requesting one; and the defendant has been given a reasonable opportunity to make the request.
- If the defendant has requested an appointed attorney, the court may not direct or encourage the defendant to communicate with the State unless the court has denied the request, and after the denial; the defendant has been given a reasonable opportunity to retain an attorney, or has waived the opportunity.
C. The State may not:
- Initiate or encourage an attempt to obtain from the defendant a waiver of right to an attorney; nor communicate with the defendant who has requested the appointment of an attorney unless the court has denied the request and subsequent to the denial the defendant:
a. Has been given a reasonable opportunity to retain an attorney; or
b. Waives, or has waived, the opportunity.
D. Waiver of right to an attorney
- A defendant may voluntarily and intelligently waive the right to an attorney.
- If a defendant wishes to waive the right to an attorney for the purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charge against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation. If the court determines that the waiver is voluntary and intelligently waived, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings.
“I have been advised this day of , , by the (name the court) of my right to representation by an attorney in this case pending against me. I have been further advised that if I am unable to afford an attorney, one will be appointed for me free of charge. Understanding my right to have an attorney appointed for me free of charge if I am financially unable to employ one, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me. I hereby waive my right to an attorney in this case.”
A defendant may withdraw a waiver of the right to an attorney at any time; but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of an attorney. If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed attorney ten days to prepare.
Attorney Selection Process
ATTORNEY SELECTION PROCESS
A. The Leon County Judge will identify from the appointment list, 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:
a. The defendant requesting an attorney does not understand and/or speak English, in which case the court will appoint an attorney whose name appears next in order and speaks the defendant’s language, if one if available.
b. The defendant has an attorney already appointed on a prior pending or concluded matter. The same attorney may be appointed in the new matter, unless the attorney is not on the list for the type of offense involved in the current case.
c. Other good cause exists for the court to vary from the appointment list.
B. Once appointed, an attorney’s name will be moved to the bottom of theappointment 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 a case:
The Leon County Judge presiding over a misdemeanor criminal case may remove an appointed attorney upon entering a written order showing good cause for such removal, including; but not limited to, the following:
a. An attorney’s failure to appear at a court hearing.
b. An attorney’s failure to comply with the requirements imposed by this Plan.
c. Current information about the defendant and the charges against the defendant indicate that another qualified attorney is more appropriate for the defendant under this Plan.
d. The appointed attorney shows good cause for being removed, such as illness, workload, or scheduling difficulties.
e. The defendant requests an attorney, other than his trial attorney, for appeal.
f. The defendant shows good cause for removal of the attorney, including the attorney’s persistent or prolonged failure to communicate with the defendant.
D. Appointment of replacement attorney:
1. Whenever an appointed attorney is removed, the replacement shall be immediately selected and appointed in accordance with the procedures described in this Plan.
Fee and Expense Payment Process
FEE AND EXPENSE PAYMENT PROCESS
A. The court appointed attorney shall be compensated for all reasonable and necessary services rendered in representing the defendant. Compensation shall be reasonable for time and effort expended, and will be in accordance with a fee schedule adopted and approved by the Leon County Judge.
B. No payment of attorney’s fees and expenses shall be made except in accordance with the following rules:
a. An appointed attorney shall fill out and submit a fee voucher to the Leon County Judge’s office within 30 days of disposition of the case for legal services rendered to the defendant.
b. The Leon County Judge shall review the request for compensation, and either approve or disapprove the amount requested.
c. If disapproved, the Leon County Judge shall make a written finding, stating the amount of payment that the Judge will approve, and each reason for approving an amount different from that requested.
d. An attorney whose request for payment is disapproved or is not otherwise acted upon by the 20th day after the date of the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with presiding judge of the administrative judicial region.
C. Payment of expenses:
1. The court appointed attorney will be reimbursed for reasonable and necessary expenses incurred which may include expenses for investigation and for mental health and other experts without prior approval of the court. Expenses incurred shall be paid according to the procedures set out below.
2. A court appointed attorney may file with the court a pretrial “Ex Parte” confidential request for advance payment of investigative and expert expenses. The request for expenses must state the following as applicable:
a. The type of investigation to be conducted or the type of expert to be retained.
b. 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.
c. An itemized list of anticipated expenses for each investigative and/or each expert.
3. The court shall grant the request for advance payment of expenses in whole or in part if request is deemed to be reasonable and necessary. If the court denies the request in whole or in part, the request for expenses; then the court shall:
a. State the reasons for the denial in writing.
b. Attach the denial to the confidential request, and
c. Submit the request and denial as a sealed exhibit to the record of the case.
Signed on this the 21st day of September, 2015.
Byron Ryder, Judge Leon County Court
Amended by Jim Witt, Leon County Attorney October 28, 2013
Amended by Jim Witt, Leon County Attorney September 21, 2015
Leon County Court Affidavit of Indigence.doc (2/10/2010 3:48:44 PM) view
Leon County Court Attorney Application for Appointment.doc (2/10/2010 3:50:10 PM) view
Leon County Court Attorney Fee Schedule.pdf (7/6/2010 12:23:21 PM) view
Leon County Court Attorney Fee Voucher.doc (2/10/2010 3:49:43 PM) view