HAYS COUNTY AMENDED PLAN AND

STANDING RULES AND ORDERS FOR

PROCEDURES FOR TIMELY AND FAIR APPOINTMENT

OF COUNSEL FOR INDIGENT ACCUSED PERSONS IN

HAYS COUNTY, TEXAS

Effective Date - November 1st, 2023

 

 

Be it remembered that on this date the below signed District Court Judges of Hays County, Texas, (hereafter referred to as the Hays County Judges) hereby adopt, order, establish and order published these countywide procedures, rules and orders for the timely and fair appointment of counsel for indigent defendants in Hays County, Texas.

 

I.

SHERIFF’S RESPONSIBILITY

The Sheriff of Hays County shall ensure that within 48 hours after arrest, every arrestee shall be brought before a magistrate for a magistrate to set bail and inform the accused person of their rights including right to court appointed counsel if indigent.

II.

MAGISTRATE RESPONSIBILITIES

The Magistrates of Hays County, Texas shall establish a plan and rotate holding magistrate’s hearings each day by 9:00 p.m.

At the Magistrate hearing the responsible Judge shall:

1. admonish the defendant of the magistrate and Miranda warnings as provided by law;

notify the defendant of indigent representation rights;

make a written record of the magistrate warnings and right to court appointed counsel for indigent accused persons;

notify the defendant of right to counsel and right to court appointed counsel if indigent;  inquire as to whether the defendant is requesting court appointed counsel;

 inquire as to whether the defendant is requesting court appointed counsel;

 provide defendant with an Affidavit of Indigence and reasonable assistance in completing said forms; and

Refer immediately applications for appointed counsel to the Hays County Indigent Defense Coordinator.

The magistrate shall immediately, and in no more than 24 hours, transmit the Affidavit of Indigence, and Defendant's Request for Court Appointed Counsel to the Hays County Indigent Defense Coordinator or in their absense to a District Judge in felony cases and to a County Court-at-Law Judge in misdemeanor cases. 

For persons arrested on out-of-county warrants, the magistrate will ask the defendant if he/she would like to request 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.

If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within three working days of this county’s receipt of the request for counsel.

If a defendant is arrested in this county based on another county’s warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county’s custody.

 If a 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/ or from the Indigent Defense Coordinator. The defendant may submit these forms to the Indigent Defense Coordinator. The court will rule on all requests for counsel submitted in this manner.

III.

PROCEDURES AND FINANCIAL STANDARDS FOR DETERMINING

INDIGENCE STATUS

At the Magistrate’s Hearing, each defendant shall be provided an opportunity to request court appointed counsel, if indigent. Each requesting defendant shall complete and file a sworn Affidavit of Indigent Status, in a form approved by the Hays County Judges. The Magistrate will ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided. If the defendant does not speak and/or understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31.

The Magistrate shall immediately transmit the Affidavit of Indigence, and Defendant’s Request for Court Appointed Counsel to the Hays County Indigent Defense Coordinator or in their absence to a District Judge in felony cases and to a County Court at Law Judge in misdemeanor cases.

The Judge/ Indigent defense Coordinator making court appointments of counsel for indigents shall review the Affidavit of Indigence and such other information bearing on the financial status of the defendant and make a determination of indigence status and appoint counsel where required by law within 3 working days after receiving the request for court appointed counsel. In determining indigence, the Judge shall presume indigence if the defendant's income is below 125% of the Federal Poverty Guidelines, a copy of which is attached hereto as Exhibit "A".

The Judge/ Indigent Defense Coordinator making court appointments of counsel for indigents shall consider the following standards for determining indigence and such other reasonable factors as the court finds to have a bearing on the financial inability of a defendant to retain counsel:

1. Defendant’s income from any and all sources;

Sources of the defendant’s income;

Assets of the defendant;  Property owned by the defendant, or in which the defendant has an interest;

Outstanding obligations of the defendant;

Necessary expenses of the defendant;

The number and age of the defendant’s legal dependents;

Spousal income available to the defendant; and

Such other reasonable factors as determined by the Judge.

The Judge/ Indigent Defense Coordinator shall not consider whether the defendant has posted bail, except to the extent that it reflects on the defendant’s financial circumstances.

IV.

LIST OF ELIGIBLE ATTORNEYS FOR SERVICE AS

COURT APPOINTED COUNSEL FOR

INDIGENT ACCUSED PERSONS

The Hays County Judges shall prepare and distribute to all licensed attorneys requesting appointments in criminal cases in Hays County, Texas an "Affidavit of Licensed Attorney Practicing Law in Hays County, Texas", a copy of which is attached hereto as Exhibit "B".

Each attorney receiving said mailing shall return said Affidavit to the District Court Administrator of Hays County, if they wish to be placed on the rotating assignment list.

The Judges shall meet, approve, and post outside the Hays County District Clerk’s office lists of the names of attorneys approved to represent indigent accused persons in the Hays County Courts.

The Local Administrative District Judge shall maintain indigent defense appointment lists in this county.

  All lists, except for the Juvenile, Appeals, and Capital Felonies where the death penalty is sought, will include the name of NDS- Texas Hays County Public Defender’s Office (PDO).

V.

NON-CAPITAL FELONY APPOINTMENT PROCEDURES AND RULES

The District Court Judges, upon any finding of indigence and request for court appointed counsel, shall sign an Order Appointing Counsel and deliver same to the attorney. The staff of the District Court Judges shall immediately contact the attorney by phone, fax, or in person and notify said attorney of the appointment and the last known location of the defendant.

VI.

CAPITAL FELONY APPOINTMENT PROCEDURES AND RULES

The District Court Judges, upon any finding of indigence and request for court appointed counsel, shall sign an Order Appointing Counsel from the approved counsel for capital trials list in accordance with Art. 26.052 of the Code of Criminal Procedures, and deliver same to the attorney. The staff of the District Court Judge shall immediately contact the attorney by phone, fax, or in person and notify said attorney of the appointment and the last known location of the defendant.

VII.

ALTERNATIVE APPOINTMENT PROGRAM

1. Due to the rural nature of Hays County, the limited number of attorneys available for indigent appointments, and the necessity for appointing attorneys from other counties, an Alternative Appointment Program is adopted.
2. All courts shall maintain a list of attorneys who regularly accept criminal court appointments in Hays County.
3. The court shall appoint an attorney for an indigent Defendant from the list based on the location of the hearing, the availability of the attorney, and the complexity of the case.
4. The appointment list shall be comprised of attorneys who have completed the questionnaire affidavit provided by Hays County and have specifically requested to be placed on the appointment list.
5. The lists shall consist of the names of all licensed attorneys practicing in Hays County who accept court appointments in criminal cases.
6. Due to the rural nature of Hays County and lack of attorney’s available for appointment, the Judge is authorized to appoint an available attorney who comes closest to meeting the qualifications for a particular case.
7. Appointments will be made reasonably and impartially among qualified attorneys.

VIII.

MINIMUM CONTINUING LEGAL EDUCATION

REQUIREMENTS

Appointment in Criminal Cases: An Attorney who meets the requirements of this rule may be appointed to represent an indigent person arrested for or charged with a crime, if the attorney is otherwise eligible under the procedures developed under Article 26.04, Code of Criminal Procedure. Crime has the meaning assigned by §173.2(2). An attorney may be appointed under this rule only if an attorney:

1. Completes a minimum of six (6) hours of continuing legal education pertaining to criminal law during each 12-month reporting period. The Judges of criminal courts of Hays County shall set the 12-month reporting period applicable to the jurisdiction. Continuing legal education may include activities accredited under Section 4, Article XII, State Bar Rules, self-study, teaching at an accredited continuing legal education activity, attendance at a law school class or legal research based writing. The Judges may require attorneys to complete more than the minimum number of hours of continuing legal education in criminal law in the procedures developed under Article 26.04, Code of Criminal Procedure; or

Is currently certified in criminal law by the Texas Board of Legal Specialization.

Reporting Period: 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 requirement for the initial year. Continuing legal education activity completed during any reporting period in excess of the minimum six-hour requirement for such period may be applied to the following period’s requirement. The carryover provision applies to one year only.

Emergency Appointment: If no attorney who meets the continuing legal education or board certification requirements contained in this Subchapter is available by the time an attorney must be appointed in the case, another attorney may be appointed. The person making an appointment under this Section shall give priority to an attorney with experience in criminal law.

IX.

PERIODIC REVIEW OF LIST OF COURT

APPOINTED COUNSEL AND/OR REMOVAL FROM LIST

The Hays County Judges shall periodically, and at least annually, review and reform the list of eligible court appointed counsel and cause same to be posted outside the Hays County District Clerk’s office and made available to the public upon request.

Any Judge trying criminal cases may temporarily remove an attorney from consideration for appointments, pending permanent action by a majority of the Judges, if the attorney intentionally or repeatedly does not fulfill the duties required by law, rules, local rules, or provisions for providing reasonable assistance of counsel or complying with the requirements for inclusion on the approved list for counsel for indigent accused persons.

Attorneys must be approved by majority of Judges to be placed on the appointment list. 

X.

RESPONSIBILITY OF COURT APPOINTED COUNSEL

Court appointed counsel shall make every reasonable effort to contact the defendant not later than the end of the first working day after appointment and to interview the defendant as soon as practicable.

Court appointed counsel shall comply with all laws, rules, procedures, and ethical provisions for providing reasonable assistance of counsel to their client.

Court appointed counsel shall maintain a high standard of ethical conduct and always be completely candid with the trial court.

Court appointed counsel shall timely inform their client of matters relating to the preparation, trial, and disposition of the case; appellate and writ rights, deadlines, and procedures for proper processing, and such other matters as necessary to provide reasonable assistance of counsel.

Court appointed counsel shall represent a defendant until the defendant is acquitted, appeals are exhausted, or the court, relieves the attorney and/or replaces the attorney with other counsel.

Court appointed counsel shall be a member in good standing with the State Bar of Texas.

Court appointed counsel shall professionally perform duties and responsibilities of a licensed attorney for the State of Texas.

A court may replace an attorney if the appointed attorney does not make an effort to contact the defendant by the end of the first working day or does not interview the defendant as soon as practicable, or may sanction said attorney for violation of those provisions.

A majority of the Judges trying criminal cases in the county may remove an attorney from consideration for appointments, if the attorney intentionally or repeatedly does not fulfill the duties required by law, rules, local rules, or provisions for providing reasonable assistance of counsel or complying with the requirements for inclusion on the approved list for counsel for indigent accused persons.

For incarcerated persons, counsel will be appointed for persons determined to be indigent within three working days of receipt of the request for counsel.

For persons out of custody, counsel will be appointed for persons determined to be indigent at defendant's first court appearance or when adversarial judicial proceedings are initiated, which ever comes first.

Persons appearing in court without counsel will be advised of the right to counsel and procedures for obtaining counsel.

 An attorney shall submit by October 15^th of each year a statement that describes the percentage of the attorney’s practice time that was dedicated to work based on appointments accepted in this county for adult criminal cases and juvenile delinquency cases for the prior 12 months that begins on October 1^st and ends on September 30^th. The report must be submitted through the online form to the Texas Indigent Defense Commission.

For persons arrested on out-of-county warrants, the magistrate will ask the defendant if he/she would like to request 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.

If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within three working days of this county’s receipt of the request for counsel.

If a defendant is arrested in this county based on another county’s warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county’s custody.

If a 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/ or from the Magistrate.. The defendant may submit these forms to the Magistrate. The court will rule on all requests for counsel submitted in this manner.

Appointment Authority

1.      If no case has been filed in the trial court, the appointing authority for misdemeanors is:  Indigent Defense Coordinator

2.      If no case has been filed in the trial court, the appointing authority for felonies is: Indigent Defense Coordinator

3.      If the case has been filed in the trial court, the appointing authority is: Indigent Defense Coordinator

 

 

XI.

LIST OF ELIGIBLE ATTORNEYS

FOR COURT APPOINTED COUNSEL

An attorney must be approved for each list (State Jail and Third Degree Felony List, First and Second Degree Felony List, Capital Case List and Appeals List) by a majority of the District Court Judges hearing criminal cases.

For NDS- Texas Hays County Public Defender’s Office: The Office shall ensure that all attorneys are qualified to handle the cases they are assigned.

 The Hays County District Court shall appoint an attorney from a public appointment list using a system of rotation.

Upon determining that an accused person is eligible for appointment of an attorney, the Judge/Indigent Defense Coordinator/Judge’s designee authorized to make the appointment shall review the appropriate list of attorneys, which will include the PDO. In compliance with Articles 26.04(a) and (f) of the Code of Criminal Procedure the Judge/Indigent Defense Coordinator/Judge’s designee shall appoint the PDO when consistent with this Plan. The PDO will not be utilizing the community intake aspect of case intake as described in the Hays County Commissioner’s Court Contract. The PDO will confer with the District Court for future consideration of the community intake option in subsequent calendar years.

Beginning in the calendar year 2023, NDS-Texas Hays County Public Defender’s Office will be assigned up to the equivalent of 1,434 misdemeanor cases annually for years one through five, where a misdemeanor counts as 1 misdemeanor case and a felony counts as 1.87 midseason cases. The “calendar year” begins on January 1^st and ends December 31^st. Assignments will consist of all felony non-capital appointments, capital felonies where the death penalty is not sought, all misdemeanors, no juvenile cases and no appeals, within caseload limits for the PDO. A maximum of 32 felonies will be assigned to NDS- Texas Hays County Public Defender’s Office per month, subject to change.

*In calendar year 2023, the PDO will be appointed 184 felony cases, previously court appointed to attorneys now working at the PDO. The adjusted maximum for year 2023 felony appointments from April through December, outside of the 184 cases previously mentioned, will be 25 felonies per month.

Up to half of the cases assigned to NDS- Texas Hays County Public Defender’s Offices shall be those with defendants exhibiting mental health concerns. An initial method for satisfying this objective shall be referral of any case for which a magistrate has ordered a mental health evaluation pursuant to Article 16.22 of the Texas Code of Criminal Procedure. This 16.22 form will be included with the Notice of Assignment.

Additionally, under 26.04(f) of the Texas Code of Criminal Procedure, the court is not required to appoint the PDO if the court makes a finding of good cause for appointing other counsel, provided that in a capital murder case, the court makes a finding of good cause on the record for appointing that counsel.

Once the defendant’s indigency affidavit has been approved, the court coordinator/ Indigent Defense Coordinator shall select from among the next five names on the appointment list in the order in which the attorney’s names appear on the list, unless the District Court Judges make a finding of good cause on the record for appointing an attorney out of order.

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.

The Hays County District Court’s public appointment list shall contain the names of qualified attorneys, each of whom:

1. Applies to be included on the list;

2. Meets the objective qualifications specified by the District Court Judges;

3. Meets any applicable qualifications specified by the Task Force on Indigent Defense; and

4. Is approved by a majority of the District Court Judges.

The District Court Judges will monitor attorney performance on a continuing basis to assure the competency of attorneys on the list. An attorney may be removed or suspended, as appropriate, from one or more appointment list by a majority vote of the District Court Judges.

An attorney who was removed from the 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 so long as the attorney otherwise meets the other qualifications under this plan.

An attorney who has been removed from the appointment list for any other reason and wishes to be reinstated must apply through the original application process.

XII.

COMPENSATION OF COURT APPOINTED COUNSEL

Court appointed counsel shall receive such reasonable compensation as established by Standing Order of the Judges for Hays County, Texas. 

NDS-Texas Hays County Public Defender’s Office will be compensated according to its contractual agreement and not as part of the payment process included in this section.

The fee schedule, attached hereto as Exhibit "C", adopted by formal action of the Judges for Hays County, Texas shall comply with the Texas Code of Criminal Procedure Article 26.05 and all applicable law.

Court appointed counsel must submit to the District Court the completed Motion for Payment of Itemized Time and Services which is attached hereto as Exhibit "D" and Order to Pay which is attached hereto as Exhibit "E" within thirty (30) days from the completion of the case.

XIII.

APPOINTMENT OF INVESTIGATORS

AND EXPERTS FOR INDIGENT DEFENSE

Appointment and reimbursement for reasonable and necessary investigation, mental health and other experts shall be as provided by law and only upon written motion and prior approval of the trial judge for such appointment and anticipated reimbursement.

Counsel appointed in a non-capital case shall be reimbursed 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, according to the procedures set forth below. Prior court approval must be obtained before incurring expenses for investigation and for mental health and other experts.

NDS-Texas Hays County Public Defender’s Office has employed, and will maintain employment of, its own investigators. The PDO is expected to utilize these investigators. If the PDO requires additional funds for investigators, it should use funds paid through the contractual agreement.

Procedure for Court Approval ex parte:

Appointed counsel may file with the trial court a pretrial 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;

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 or mitigation; and

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

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 reasons for the denial in writing;

attach the denial to the confidential request; and

submit the request and denial as a sealed exhibit to the record.

If Judge disapproves the requested amount of payment, the Judge shall make written findings stating the amount that the Judge approves and each reason for approving an amount different from the requested amount.

Expenses incurred without prior approval shall be reimbursed if appointed counsel establishes by a preponderance of evidence that the expenses are reasonably necessary and reasonably incurred. 

XIV.

COURT APPOINTED COUNSEL FOR

INDIGENT ACCUSED PERSONS

JUVENILE COURT CASES

The Hays County Juvenile Board shall establish the procedures, standards, guidelines, rules, and orders for the appointment of counsel to represent indigent juveniles in juvenile court cases as provided by law.

 

 XV.

 

MISDEMEANOR APPOINTMENT PROCEDURES AND RULES

 

The County Court at Law Judge, upon any finding of indigence and request for court appointed counsel, shall sign an Order Appointing Counsel and deliver same to the attorney. The staff of the County Court at Law Judge shall immediately contact the attorney by phone, fax, or in person and notify said attorney of the appointment and the last known location of the defendant.

XVI.

LOCAL ADMINISTRATIVE JUDGE’S

REPORTING COMPLIANCE

 

The above Standing Order was adopted  is effective beginning November 1st, 2023.

    Signed and ORDERED this the 1st day of November, 2023.

HONORABLE SHERRI TIBBE, 453rd  Judicial District Court

Local Administrative District Judge

 

Hays District Court 125% of the 2019 Federal Poverty Guidelines- Exhibit A.docx (4/10/2019 10:11:13 AM) view
Hays District Court 2017 Poverty Guidelines.pdf (10/25/2017 9:37:37 AM) view
Hays District Court Affidavit of Indigence.pdf (10/28/2015 10:36:13 AM) view
Hays District Court Attorney Application for Appointment.pdf (6/18/2020 8:36:40 AM) view
Hays District Court Attorney Fee Schedule.pdf (10/31/2023 3:36:55 PM) view
Hays District Court Attorney Fee Voucher.doc (10/28/2015 10:37:34 AM) view
Hays District Court Hays District Court 2021 Poverty Guidelines.pdf (10/19/2021 4:11:03 PM) view
Hays District Court Magistrates Warning Form.pdf (2/10/2010 3:42:17 PM) view
Hays District Court Magistrate’s Warning Form.pdf (10/28/2015 10:35:56 AM) view
Hays District Court NDS Executed Contract.pdf (11/3/2023 10:14:41 AM) view
Hays District Court Order to pay.doc (10/28/2015 10:39:04 AM) view
Hays District Court Poverty Guideline.pdf (2/10/2010 3:43:39 PM) view
Hays District Court Poverty Guidelines.pdf (10/28/2015 10:39:51 AM) view