Caldwell District Court and County Court Plan
Preamble
10/29/2019

CALDWELL COUNTY AMENDED PLAN AND

STANDING RULES AND ORDERS FOR

PROCEDURES FOR TIMELY AND FAIR APPOINTMENT

OF COUNSEL FOR INDIGENT ACCUSED PERSONS IN

CALDWELL COUNTY, TEXAS

Effective Date - November 1, 2019

 

 Be it remembered that on this date the below signed District Court Judges and County Court at Law Judge of Caldwell County, Texas, (hereafter referred to as the Caldwell 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 Caldwell County, Texas.

Prompt Magistration
10/27/2015

I.

 

SHERIFF’S RESPONSIBILITY

 

The Sheriff of Caldwell 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 Justices of the Peace and Magistrates of Caldwell 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;

2. Notify the defendant of indigent representation rights;

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

4. Notify the defendant of right to counsel and right to court appointed counsel if indigent;  

5. Inquire as to whether the defendant is requesting court appointed counsel;

6.Provide defendant with an Affidavit of Indigence and reasonable assistance in completing said forms; and

7.Refer immediately applications for appointed counsel to the appropriate designated Judge for appointment of counsel as provided by the Local Rules of Caldwell County.

8.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 a District Judge in felony cases and to a County Court-at-Law Judge in misdeameanor cases

9. 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.

10. 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.

11. 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.

 12. 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.

 

Indigence Determination Standards
4/10/2019

 

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 Caldwell 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 a District Judge in felony cases and to a County Court at Law Judge in misdemeanor cases.

 

The Judge making court appointments of counsel for indigent defendants 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 making court appointments of counsel for indigent defedants 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;
  2. Sources of the defendant’s income;
  3. Assets of the defendant; 
  4. Property owned by the defendant, or in which the defendant has an interest;
  5. Outstanding obligations of the defendant;
  6. Necessary expenses of the defendant;
  7. The number and age of the defendant’s legal dependents;
  8. Spousal income available to the defendant; and
  9. Such other reasonable factors as determined by the Judge.

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

Minimum Attorney Qualifications
6/18/2020

 

IV.

 

LIST OF ELIGIBLE ATTORNEYS FOR SERVICE AS

COURT APPOINTED COUNSEL FOR

INDIGENT ACCUSED PERSONS

 

The Caldwell County Judges shall prepare and distribute to all licensed attorneys requesting appointments in criminal cases in Caldwell County, Texas an "Affidavit of Licensed Attorney Practicing Law in Caldwell 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 Caldwell County, if they wish to be placed on the rotating assignment list.

 

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

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.

The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless good cause exists to appoint private counsel.

 

If a co-defendant requests appointment of counsel and is determined to be indigent, the Appointing Authority shall appoint counsel pursuant to the standards and procedures stated in this Section. 

 

If private counsel is appointed to a co-defendant, rather the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in this Section.

 

VII.

 

ALTERNATIVE APPOINTMENT PROGRAM

 

      Due to the rural nature of Caldwell 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.

      .All courts shall maintain a list of attorneys who regularly accept criminal court appointments in Caldwell County.

      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.

      The appointment list shall be comprised of attorneys who have completed the questionnaire affidavit provided by Caldwell County and have specifically requested to be placed on the appointment list.

        The lists shall consist of the names of all licensed attorneys practicing in Caldwell County who accept court appointments in criminal cases.

        Due to the rural nature of Caldwell 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.

        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 Caldwell 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 Caldwell 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 Caldwell 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. 

               

              Prompt Appointment of Counsel
              10/27/2015

               

              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 inititated, 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 15th 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 1st and ends on September 30th. 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:  Local Administrative Judge for CCAL

              2.      If no case has been filed in the trial court, the appointing authority for felonies is: Steve Thomas email: steve.thomas@co.hays.tx.us

              3.      If the case has been filed in the trial court, the appointing authority is: Steve Thomas email: steve.thomas@co.hays.tx.us

              Attorney Selection Process
              6/18/2020

              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.

               

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

              Once the defendant’s indigency affidavit has been approved, the court 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 Caldwell 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 who established the list.

               

              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.

              Capital Cases

              The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless good cause exists to appoint private counsel.

              If a co-defendant requests appointment of counsel and is determined to be indigent, the Appointing Authority shall appoint counsel pursuant to the standards and procedures stated in this Section. 

              If private counsel is appointed to a co-defendant, rather the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in this Section.

              The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if:

              1. A conflict of interest exists;
              2. The Office has insufficient resources to provide adequate representation;
              3. The Office is incapable of providing representation in accordance with the rules of professional conduct;
              4. Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or
              5. The Office shows other good cause for refusing appointment.
              Fee and Expense Payment Process
              3/9/2011

              XII.

              COMPENSATION OF COURT APPOINTED COUNSEL

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

              The fee schedule, attached hereto as Exhibit "C", adopted by formal action of the Judges for Caldwell 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.

              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.

                                 

                                Miscellaneous
                                10/29/2019

                                XIV.

                                COURT APPOINTED COUNSEL FOR

                                INDIGENT ACCUSED PERSONS

                                JUVENILE COURT CASES

                                The Caldwell 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 by the below signed Judges and is effective beginning November 1st, 2019.

                                     Signed and ORDERED this the 30th day of October, 2019.

                                HONORABLE R. BRUCE BOYER, 22nd Judicial District Court

                                HONORABLE JACK ROBISON, 207th Judicial District Court

                                HONORABLE F.C. SCHNEIDER, 421st Judicial District Court

                                HONORABLE BARBARA MOLINA, County Court-at-Law 

                                 

                                 

                                 

                                 

                                 

                                 

                                 

                                Plan Documents
                                Caldwell District and County Court 2017 Poverty Guidelines.pdf (10/24/2017 1:32:45 PM) view
                                Caldwell District and County Court Affidavit of Indigence.pdf (10/27/2015 4:15:39 PM) view
                                Caldwell District and County Court Application for Court Appointed Attorney.pdf (10/27/2015 4:54:30 PM) view
                                Caldwell District and County Court Attorney Application for Appointment.pdf (10/27/2015 4:43:08 PM) view
                                Caldwell District and County Court Attorney Fee Schedule.pdf (10/29/2019 3:19:44 PM) view
                                Caldwell District and County Court Attorney Fee Voucher.doc (10/27/2015 4:17:12 PM) view
                                Caldwell District and County Court Caldwell District and County Court Poverty Guidelines.pdf (10/27/2015 4:18:41 PM) view
                                Caldwell District and County Court Magistrates Warning Form.pdf (2/10/2010 4:04:34 PM) view
                                Caldwell District and County Court Magistrate’s Warning Form.pdf (10/27/2015 4:15:20 PM) view
                                Caldwell District and County Court Poverty Guideline.pdf (2/10/2010 4:05:20 PM) view
                                Caldwell District and County Court Poverty Guidelines.pdf (10/28/2013 1:45:23 PM) view