STANDING RULES AND ORDERS FOR PROCEDURES FOR TIMELY AND FAIR APPOINTMENT OF COUNSEL FOR INDIGENT ACCUSED PERSONS IN HAYS COUNTY, TEXAS

Effective Date – November 1, 2023

I. Preamble

In compliance with the Article 26.04 of the Texas Code of Criminal Procedure, on the date of the signatures below, the Judges of the County Courts at Law of Hays County, Texas, (Hays CCL Judges) adopted, ordered, established, and ordered published this Hays County Indigent Defense Plan (“the Plan”) and these countywide rules and orders for procedures for the timely and fair appointment of counsel for indigent defendants in Hays County, Texas.

 

Every person charged with a criminal offense is entitled to representation by legal counsel.  Indigent persons who are charged with a misdemeanor offense punishable by confinement are entitled to have legal counsel appointed for them.

 

The purpose of the Plan is to develop and maintain procedures for the timely appointment of counsel in criminal cases and establish criteria to assure that appointed counsel meet adequate experience and training skill levels for defending indigent defendants in appointed criminal cases.

A.    Definitions, as used in this rule:

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

                              ii.            “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 minus those deductions required by law or as a condition of employment); net self-employment income (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the accused has no income or lesser income.

                            iii.            “Household” means all individuals who are actually dependent on the accused for financial support.

                            iv.            “The cost of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.

II. Prompt Magistration

A. SHERIFF’S RESPONSIBILITY

The Sheriff of Hays County shall ensure that, within 48 hours after arrest, the Sheriff’s Office (HCSO) brings every arrestee within the HSCO’s custody before a magistrate for the purpose of a magistrate’s setting bail and informing the accused person of their rights including right to court-appointed counsel, if indigent.

 

B.MAGISTRATE RESPONSIBILITIES

Magistration

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

2.At all magistrate hearings, the responsible Judge shall:

1. admonish the defendant of the Magistrate’s and Miranda warnings, as required by law;
2. notify the defendant of their right to counsel and right to court-appointed counsel, if indigent;
3. inquire as to whether the defendant is requesting court-appointed counsel;
4. make a written record of the provision of the Magistrate’s and Miranda warnings and the right to court-appointed counsel for indigent accused persons;
5. provide the defendant with an Affidavit of Indigence form and reasonable assistance in completing that form; and
6. refer immediately applications for court-appointed counsel to the Hays County Indigent Defense Coordinator (HCIDC).

3. If the defendant does not speak or understand the English language or is deaf, the magistrate shall inform the defendant in a manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31.

Post-Magistration

4. After receiving an Affidavit of Indigence and a Defendant’s Request for Court-Appointed Counsel from a defendant, a magistrate shall immediately, but not more than twenty-for (24) hours after receiving those documents, files those documents in the online file for the subject case and transmit those documents to the HCIDC or, in the absence of the HCIDC, to a District Judge in felony cases and to a County Court-at-Law Judge in misdemeanor cases.

                        Out-Of-County Warrants

5. For persons arrested on out-of-county warrants, the magistrate will:

a.ask the defendant if they would like to request court-appointed counsel;

b.record the defendant’s response;

c.provide the defendant with the appropriate forms for requesting a court-appointed counsel if the defendant requests such counsel;

d. ensure that defendants who request court-appointed counsel have assistance in completing the forms; and

e. transmit all completed forms requesting court-appointed counsel to the appointing authority in the county issuing the warrant within 24 hours of the defendant making such request.

III. Determination of Indigence

 

A. PROCEDURES FOR DETERMINING INDIGENCE STATUS

1.At the Magistrate’s Hearing, the magistrate shall provide each defendant an opportunity to request a court-appointed counsel, according to procedures set out above for Magistrates in II. B. above.

2. The HCAA shall:

a.review the Affidavit of Indigence and such other information bearing on the financial status of the defendant, and

b.determine the indigence status of the defendant applicant, when required by law, within three (3) working days after receiving the request for court-appointed counsel. See V. A. below.

 

B. FACTORS FOR DETERMINING INDIGENCE STATUS

1. The HCAA shall consider the following factor in determining indigence:
   1. The defendant’s income from all sources;
   2. The sources of the defendant’s income;
   3. The defendant’s assets, including property that the defendant owns, or in which the defendant has an interest;
   4. The defendant’s outstanding financial obligations;
   5. The defendant’s necessary expenses;
   6. The number and age of the defendant’s legal dependents;
   7. Spousal income available to the defendant; and
   8. Such other reasonable factors as the HCAA finds to have a bearing on the financial inability of a defendant to retain counsel.
2. In determining indigence, the HCAA shall presume indigence if the defendant's income is at or below 125% of the then current Federal Poverty Guidelines, a copy of which follows as a Plan Document or can be located at Poverty Guidelines | ASPE (hhs.gov) or FPL Calculator (2023) | PovertyLevelCalculator.com.
3. The HCAA shall not consider whether the defendant has posted bail, except to the extent that the posting of bail reflects on the defendant’s financial circumstances.

IV. Attorneys Qualified for Court-Appointment

 

1. ATTORNEYS ELIGIBLE FOR SERVICE AS COURT-APPOINTED COUNSEL FOR INDIGENT ACCUSED PERSONS
   1. The Hays CCL Judges will prepare and distribute to all licensed attorneys requesting appointments in criminal cases in Hays County, Texas the form entitle “Affidavit of Licensed Attorney Practicing Law in Hays County, Texas,” a copy of which follows as a Plan Document.
   2. Each attorney receiving this mailing must complete and return this Affidavit to the Administrator of the Hays County Courts at Law, if they wish to be placed on the rotating list for count-appointed counsel.
   3. The Hays CCL Judges will meet, approve, and post outside their offices lists of the names of attorneys approved to represent indigent defendants in the Hays County Courts at Law.
   4. A majority of Hays CCL Judges must approve an applying attorney before that attorney is placed on the appointment list.
   5. The Local Administrative Hays CCL Judge will maintain lists of attorneys qualified and eligible to be appointed as counsel for indigent defendants lists in Hays County.
   6. All such lists, except for those cases wherein they prohibited by contract with Hays County, will include the name of NDS-Texas Hays County Public Defender’s Office (PDO).
   7. The HCAA will make appointments of counsel to indigent defendants reasonably and impartially among attorneys on these lists.
   8. An attorney must be approved for each list (Criminal Misdemeanor, Guardianship/ad litem, Mental Health Court, Veterans Treatment Court, Juvenile Court and Appeals List) by a majority of the Hays CCL Judges hearing those types of cases.
   9. The Hays CCL 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 Hays CCL Judges;
      3. Meets any applicable qualifications specified by the Task Force on Indigent Defense; and
      4. Is approved by a majority of the Hays CCL Judges.
   10. The Hays CCL 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 Hays CCL Judges.
   11. 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.
   12. 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.
   13. PDO
       1. 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.
       2. 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.
       3. *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.
       4. 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.
       5. 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.

 

 

2. ALTERNATIVE APPOINTMENT PROGRAM
   1. Due to the somewhat rural nature of Hays County, the limited number of attorneys available for indigent appointments, and the necessity for appointing attorneys from counties other than Hays County, the Hays CCL Judges adopt this Alternative Appointment Program.
   2. The Hays CCL Judges will maintain a list of attorneys from counties other than Hays County who regularly accept criminal court appointments in Hays County and include these attorneys among the attorneys to whom the Hays CCL Judges sent the mailing, described in IV. A. 1.
   3. The Hays CCL Judges will 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. Due to the somewhat rural nature of Hays County and lack of attorneys available for appointment, a Hays CCL Judge is authorized to appoint an available attorney who comes closest to meeting the qualifications for a particular case.

 

3. QUALIFICATIONS AND MINIMUM CONTINUING LEGAL EDUCATION REQUIREMENTS FOR COURT-APPOINTED COUNSEL
   1. Appointment in Criminal Cases. The HCAA may appoint an attorney who meets the requirements of this plan 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.
   2. Minimum CLE.The HCAA may appointed an attorney under this plan only if the attorney:
      1. Completes a minimum of six (6) hours of continuing legal education pertaining to criminal law during each 12-month reporting period. The Hays CCL Judges will set the 12-month reporting period applicable to this 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 Hays CCL 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
      2. Is currently certified in criminal law by the Texas Board of Legal Specialization.
      3. The PDO shall ensure that all PDO attorneys are qualified to handle the cases to which the HCCA appoints them.
   3. Reporting Period.
      1. An attorney under this plan may use their continuing legal education activity completed within a 12-month period immediately preceding the attorney’s initial reporting period to meet the educational requirement for the initial year.
      2. 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. This carryover provision applies to only one 12-month period.
   4. Emergency Appointment. If the list maintained under this plan does not include any attorney who meets the continuing legal education or board certification requirements contained in this plan at the time an attorney must be appointed in a case, the HCAA may appoint another attorney. The HCAA making an appointment under this section shall give priority to an attorney with experience in criminal law.

 

4. PERIODIC REVIEW OF LIST OF COURT-APPOINTED COUNSEL AND REMOVAL FROM LIST
   1. The Hays CCL Judges shall periodically, and at least annually, review and reform the list of attorneys eligible to be court-appointed counsel and post the revised list outside the Hays CCL offices and make it available to the public upon request.
   2. 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.
   3. Any Hays CCL Judge trying criminal cases may temporarily remove an attorney from consideration for appointments, pending permanent action by a majority of the Hays CCL Judges, if the Hays CCL Judge believes that 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 defendants.
   4. If a Hays CCL Judge temporarily removes an attorney from the appointment list as allowed above, the Hays CCL Judges will determine by a majority vote taken within ten (10) business days of that removal whether to reinstate that attorney to the appointment or to leave the removal in place.
   5. If a majority of the Hays CCL Judges do not reinstate a temporarily removed attorney to the appointment list, then that attorney may reapply for appointment not sooner than six months after the date of their temporary removal.

 

 

 

V. Appointment of Counsel

 

1. PROMPT APPOINTMENT OF COUNSEL.
   1. For incarcerated persons who the HCAA determines is indigent, the HCAA will appoint counsel for such persons within three (3) working days of receipt of the request for court-appointed counsel.
   2. For persons who the HCAA determines is indigent but are not in custody, the HCAA will appoint counsel at that defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever occurs first.
   3. The Hays CCL Judges will advise persons appearing in court without counsel of the right to counsel and procedures for obtaining counsel.
   4. If a defendant who the HCAA determines in indigent is arrested in a county other than Hays County based on a Hays County warrant, the Hays County Appointment Authority (HCAA) will appoint counsel for such defendant requesting a court-appointed counsel within three (3) working days of the HCAA’s receipt of that request.
   5. If a law enforcement officer arrests a defendant in Hays County based on a warrant from another county, the HCAA will appoint counsel for the defendant if, on the eleventh day after the arrest, the defendant is still in the custody of Hays County.
   6. For persons arrested on out-of-county warrants, the magistrate will ask the defendant if they 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.
   7. If a defendant wishes to request court-appointed counsel prior to their initial appearance in court, such defendant may obtain the forms required to request counsel at the Texas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/ or from the HCIDC.The defendant may submit these completed forms to the HCIDC.A Hays CCL Judge will rule on all requests for counsel submitted in this manner.
   8. If the Indigent Defense Coordinator determines that a defendant is not eligible for a court-appointed counsel, then that defendant may make a request to a Hays CCL Judge for a court-appointed counsel in the interest of justice.

 

2. APPOINTMENT AUTHORITY.

The following parties will have the authority to appoint counsel for defendants who the subject party determines is indigent:

a.If the Hays County Criminal District Attorney’s Office (HCCDA’s Office) has not filed a case with the Clerk for the Hays CCLs, then the HCAA for misdemeanors is the Indigent Defense Coordinator.

b. If the Hays County Criminal District Attorney’s Office (HCCDA’s Office) has filed a case with the Clerk for the Hays CCLs, then the HCAA for misdemeanors is the Indigent Defense Coordinator.

 

3. APPOINTMENT PROCEDURE.
   1. Any Hays CCL Judge, upon a finding of indigence of a defendant requesting court-appointed counsel, shall sign an Order Appointing Counsel and deliver that order to the appointed attorney.
   2. Within one business day of the date of an Order Appointing Counsel, the staff of the Hays CCL Judges shall contact the court-appointed attorney by email, phone, fax, or in person and notify that attorney of the appointment and the most current contact information of the subject defendant.

 

4. RESPONSIBILITY OF COURT-APPOINTED COUNSEL
   1. Court-appointed counsel shall:
      1. make every reasonable effort to contact the defendant for whom they appointed as counsel (aka “client”) not later than the end of the first working day after the appointment and to interview that defendant as soon as practicable.
      2. comply with all laws, rules, procedures, and ethical provisions for providing reasonable assistance of counsel to their client.
      3. shall maintain a high standard of ethical conduct and always be completely candid with the trial court.
      4. shall be a member in good standing with the State Bar of Texas.
      5. shall professionally perform duties and responsibilities of a licensed attorney for the State of Texas.
      6. 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.
      7. represent their client until: (1) a court acquits the client on the charges that the appointment covers, (2) the client exhausts all appeals on those same charges, or (3) a court, relieves the court-appointed counsel from the appointment or replaces that attorney with other court-appointed counsel.
   2. A Hays CCL Judge may replace a court-appointed attorney for a defendant if the appointed attorney does not make a reasonable effort to contact the defendant by the end of the first working day or does not interview the defendant as soon as practicable, or a Hays CCL Judge may sanction said attorney for violation of these requirements.
   3. An attorney on the Appointment List shall submit by October 15^th of each calendar year a statement that describes the percentage of the attorney’s practice time that the attorney dedicated to work based on appointments accepted in Hays County for adult criminal cases and juvenile delinquency cases for the prior twelve-month period that begins on October 1^st and ends on September 30^th. Attorneys on the Appointment List must submit this report using the online form of the Texas Indigent Defense Commission.

VI. Attorney Selection Process

 

1. APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS.***[review order of sections below]
   1. Upon determining that a defendant is eligible for the appointment of an attorney, the HCAA will review the appropriate list of attorneys.
   2. The HCAA will make appointments of counsel for indigent defendants from the appointment list using a system of rotation.
   3. In compliance with Articles 26.04(a) and (f)(4) of the Texas Code of Criminal Procedure, the HCAA will appoint the PDO when consistent with this Plan.
   4. Once the HCAA determines that a defendant is indigent based on: (1) the Affidavit of Indigence of the defendant, or (2) an “Appointment of Attorney in the Interest of Justice” order, the HCAA shall select from among the next five names on the Appointment List in the order in which the attorneys names appear on the list, unless the Hays CCL Judge make a finding of good cause, on the record, for appointing an attorney out of order.
   5. An attorney who is not appointed in the order in which the attorney’s name appears on the Appointment List shall remain next in order on the list.

VII. Fee and Expense Payment Process

 

1. COMPENSATION OF COURT-APPOINTED COUNSEL
   1. Hays County, Texas will pay court-appointed counsel such reasonable compensation as established by the appropriated Standing Order of the County Court at Law Judges for Hays County, Texas.
   2. Hay County will compensate the NDS-Texas Hays County Public Defender’s Office according to the contractual agreement between the County and the PDO and not as part of the payment process included in this Plan.
   3. The fee schedule, which follows as a Plan Document and that the Hays CCL Judges formally adopted, shall comply with Article 26.05 of the Texas Code of Criminal Procedure and all applicable law.
   4. To receive compensation under this Plan, a court-appointed counsel must submit to the Administrator of the Hays CCL Judges a completed Hays County Court at Law Fee Voucher, which Motion for Payment of Itemized Time and Services which follows as a Plan Document within thirty (30) days from the completion of the case.However, a court-appointed counsel may submit a completed Hays County Court at Law Fee Voucher for partial payment after completing fifteen (15) hours of time on the case.

 

2. APPOINTMENT OF INVESTIGATORS AND EXPERTS FOR INDIGENT DEFENSE
   1. Advance Payment.
      1. Hays CCL Judges will approve the appointment and advance payment of reasonable and necessary investigation, mental health, and other experts, as allowed by law, and upon written motion and prior approval of the trial judge for such appointment and anticipated payment.
      2. Hays CCL Judges will approve the reimbursement of expenses that a court-appointed counsel incurs without prior approval if a court-appointed counsel establishes by a preponderance of evidence that the expenses are reasonably necessary and reasonably incurred.
      3. Procedure for ex parte court-approval:
         1. The court-appointed counsel shall file with the Administrator of the Hays CCL Judges a pretrial ex parte confidential request for the appointment and advance payment or reimbursement of investigative and expert expenses.
         2. The request for expenses must state, as applicable:
            1. The type of investigation to be conducted or the type of expert to be retained;
            2. The 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
            3. An itemized list of anticipated expenses for each investigation or each expert.
      4. If the Judge denies, in whole or in part, the request for expenses, the Judge will:
         1. state, in writing, the reasons for the denial or for approving an amount different from the requested amount;
         2. attach the denial to the confidential request; and
         3. submit the request and denial as a sealed exhibit for filing in the record.
   2. The PDO 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.

VIII. General Provisions

 

1. 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.

 

2. LOCAL ADMINISTRATIVE JUDGE’S REPORTING COMPLIANCE

The below signed Judges adopted this Plan and Order and is effective beginning November 1, 2023.

 

 

Signed and ORDERED this the 31st day of October, 2023.

______________________________________________________________

HONORABLE CHRIS JOHNSON, Judge, Hays County Court at Law No. 2

Local Administrative County Court at Law Judge

 

                                                                                                                       

HONORABLE JIMMY ALAN HALL, Judge, Hays County Court at Law No. 1

 

                                                                                                                       

HONORABLE ELAINE S. BROWN, Judge, Hays County Court at Law No. 3

 

 

 

Plan Documents

Federal Poverty Guidelines.pdf

Hays County Court Affidavit of Indigence.pdf (7/22/2020 10:11:08 AM) view

Hays County Court Attorney Fee Schedule.docx (7/22/2020 10:30:43 AM) view

Hays County Court Attorney Fee Voucher.doc (7/22/2020 10:12:25 AM) view

Hays County Court Magistrates Warning Form.doc (2/23/2010 10:14:51 AM) view

Hays County Court Affidavit of Indigence.pdf (7/22/2020 10:11:08 AM) view
Hays County Court Attorney Fee Schedule.docx (7/22/2020 10:30:43 AM) view
Hays County Court Attorney Fee Voucher.doc (7/22/2020 10:12:25 AM) view
Hays County Court Magistrates Warning Form.doc (2/23/2010 10:14:51 AM) view