Kenedy and Kleberg District Court and County Court Plan
At a duly convened meeting of the Administrative Judge of Kenedy and Kleberg County, Texas, held October 30, 2015, said Judge by majority vote duly recorded in the minutes of the meeting adopted these additional Local Rules of Administration of Kleberg and Kenedy County for the District Courts implementing the provisions of S.B. 7.
At a duly convened meeting of the Administrative Judge of Kenedy and Kleberg County, Texas, held on October 30, 2015, said Administrative Judge by majority vote recorded in the minutes of the meeting amended Local Rules of Administration of Kleberg and Kenedy County pursuant to Article 26.05 et. seq. of the Texas Code of Criminal Procedure.
1.Arresting Officer Responsibilities
a.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 not later than 48 hours after the person is arrested.
b.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 felony or misdemeanor punishable by incarceration.
c.Release of defendants arrested without warrant
1.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, if a magistrate has not determined that probable cause exists to believe that the person committed the offense.
2.A person arrested for a felony without a warrant and who is detained in jail must be released not later than the 48th hour after arrest, on a bond in an amount not to exceed $10,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense.
3.If requested by the state, a magistrate may postpone the release of the 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, Texas Code of Criminal Procedure.
aAt the Magistrate’s hearing, the magistrate should determine if accused can speak and understand English, or if the defendant is deaf.
b.After making such determination, the magistrate shall, in an appropriate manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31, do the following:
c. If Magistrate determines Defendant is not a U.S. citizen, notify the Consulate of their country, if requested by Defendant.
1.Advise the accused of the accusation against him/her and any affidavit filed therewith;
2.Admonish the accused of:
a.The right to retain counsel;
b.The right to remain silent;
c.The right to have an attorney present during any interview with peace officers or attorneys representing the state;
d.The right to terminate an interview at any time;
e.The right not to make a statement and that any statement made by the accused may be used against him/her; and
f.The right to an examining trial.
3.Inform the accused of the right to appointed counsel if the person cannot afford counsel and the procedures for requesting appointment of counsel.
4.Inquire as to whether accused is requesting that counsel be appointed.
5.Provide accused persons requesting appointed counsel with necessary forms for requesting appointment of counsel and ensure that reasonable assistance in completing required forms is provided to the accused at the time of the magistrate’s hearing.
6.If the magistrate has reason to believe the accused is not mentally competent, the magistrate shall enter a request for counsel on behalf of the accused. Such a request will alert the appointing authority that counsel competent to represent mentally ill persons should be appointed.
7.In cases where the individual was arrested without an arrest warrant, bench warrant, capias, or other order of magistrate or judge, the magistrate shall determine if there is probable cause to believe the person committed the offense.
1.If probable cause has not been determined by a magistrate:
a.A person arrested for a misdemeanor must be released on bond, in an amount not to exceed $5,000, not later than 24 hours after the person's arrest.
b.A person arrested for a felony must be released on bond, in an amount not to exceed $10,000, not later than 48 hours after the person’s arrest.
c.If requested by the state, the magistrate may postpone the release of the defendant for not more than 72 hours after the defendant's arrest, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.
8.The magistrate shall set the amount of bail and any conditions of bond for the accused, if bail is allowed by law and has not been set by the court or magistrate issuing a warrant.
9.The magistrate shall record the following:
1.The date and time the accused was arrested and the date and time when he/she was brought before the magistrate.
2.Whether the magistrate informed the accused of the right to request appointment of counsel and asked the accused whether he/she wants to request counsel.
3.Whether the accused requested appointment of counsel
10.If the magistrate is not authorized to appoint counsel and if the accused requests appointment of counsel, the magistrate shall transmit or cause to be transmitted the magistrate form and any other forms requesting appointment of counsel to the Jail Liaison/Court Coordinator. (the appointing authority) The forms requesting appointment of counsel shall be transmitted without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel.
11.If the magistrate is authorized to appoint counsel, the magistrate shall make a determination of indigence and appoint counsel if the defendant is indigent within three working days unless the County has a U.S. Census population over 250,000, in which case counsel shall be appointed within one working day.
12.If a request for counsel was made at magistration, the appointing authority shall forward the magistrate form and any other forms requesting appointment of counsel to the appropriate clerk to be put into the case file.
13.If a request for counsel was not made at magistration, the magistrate will forward the magistrate form to the clerk to be put into the case file.
14. For a person arrested on an out-of-county warrant, the magistrate must ask if the person wants to request counsel, inform the person of the procedures for requesting counsel, and ensure the
person is provided reasonable assistance in completing the necessary forms for requesting counsel in the county issuing the warrant.
15. Requests for counsel made by person arrested on out-of-county warrants must be transmitted to the appointing authority issuing the warrant within 24 hours of the request being made.
Indigence Determination Standards
3.Definitions, as used in this rule:
a.“Indigent” means a person who is not financially able to employ counsel.
b.“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.
c.“Household” means all individuals who are actually dependent on the accused for financial support.
d.“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.
4.Eligibility for Appointment
a.An accused is presumed indigent if any of the following conditions or factors are present:
1.At the time of requesting appointed counsel, the accused or accused’s dependents are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing;
2.The accused’s net household income does not exceed 125 % of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register; or
3.The accused is currently serving a sentence in a correctional institution, 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.
b.An accused who does not meet any of the standards above shall nevertheless be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the accused’s dependents. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:
1.the nature of the criminal charge(s),
2.anticipated complexity of the defense,
3.the estimated cost of obtaining competent private legal representation for the matter(s) charged;
4.the amount needed for the support of the accused and the accused’s dependents;
6.source of income,
7.assets and property owned,
10.the number and ages of dependents, and
11.spousal income that is available to the accused.
c.Factors NOT to be considered in determining indigence:
1.The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.
2.The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.
d.Only the accused's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
a.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.
b.Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:
1.Determining if accused is (or is not) indigent; or
2.Impeaching direct testimony of accused regarding the accused’s indigence.
c.A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.
d.An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused’s financial circumstances occurs.
1.An accused’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of 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. The presumption can be rebutted in the review proceedings based on 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 circumstancesthat shows that the accused does not meet any of the standards for indigence contained in these rules.
2.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 on the case.
e.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 it finds the defendant is able to pay.
Minimum Attorney Qualifications
6. Form of Application:
a. The form of Application shall be in the form promulgated by the District Court Judges. Attorney seeking criminal appointments must complete Application and submit it to the Court Administrator. Once approved, it is not necessary for an attorney to submit an application annually. A new application may be submitted if an attorney wishes to be evaluated and qualified by the District Court Judges for an additional/different level of case representation.
b. The form shall inquire about an applicant's biographical, education, licensing, certification, continuing education, trial experience, disciplinary history and other pertinent data.
c. The form shall also inquire whether the application is for all cases or limited to misdemeanors only; for both misdemeanors and felonies; community supervision revocation motions only; for jury trials; for mental competency proceedings; for appeals only; for post-conviction proceedings, including writ of habeas corpus; motions for DNA testing, and such other proceedings as determined by the Courts.
7. Responsibilities of Appointed Counsel:
a. "Lead counsel" means the attorney in charge of the case.
b. Each appointed attorney shall make reasonable efforts to contact the Defendant within 24 hours of any appointment pursuant to Section j of the Act and to interview the defendant as soon as practicable. The appointed attorney who accepts an appointment shall represent the defendant until charges are dismissed, the defendant is acquitted, the appeals are exhausted, or the attorney is relieved of his duties by the Court, or replaced by other counsel after a finding of good cause on the record. A majority of the Judges of the District may remove from consideration the appointment of an attorney who intentionally or repeatedly violates subsection (j)(1) of Article 26.04 of the Code of Criminal Procedure, or the disciplinary rules.
8. Standard Guidelines for all Categories:
a. An attorney must meet the following requirements during each twelve month reporting period or be currently certified in Criminal Law by the Texas Board of Legal Specialization unless exempt by the Texas State Bar.
1. Earned 9 or more hours per year of continuing legal education in criminal law unless exempt.
2. Attended or viewed Nuts and Bolts Course 2009, 2013, or 2014.
3. Be in good standing with the State Bar of Texas;
b. An attorney must disclose in the application that, within the previous three years;
1. He was the subject of a final disciplinary action by the Commission for Lawyer Discipline, and/or,
2. He was the subject of a finding that he rendered ineffective assistance of counsel in a criminal case, and,
3. In either event, may include an explanation of such action or finding.
c. An attorney must complete a certification course approved by the local judiciary as Board of Judges deem necessary.
d. Attorneys must be approved by a majority of the District Judges to be placed on the appointment list.
e. An attorney shall submit by October 15th 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 and ends on September 30. The report must be submitted through the online form to the Texas Indigent Defense Commission. If an attorney does not submit a report, that attorney will be removed from the appointment list until the attorney complies with or shows good cause for not complying. If an attorney refuses to comply there upon, the attorney may be sanctioned as deemed by the Judges or removed from the list until compliant.
Prompt Appointment of Counsel
9. If it is determined that the Defendant is indigent:
a. For those Courts which have authorized the Magistrate to appoint counsel the Magistrate shall appoint counsel not later than 24 hours after the Defendant requests appointment of counsel. Counsel shall be appointed from the assigned Court's approved appointment list.
b. Persons out of custody: Counsel must be appointed at defendant's first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.
c. Advise unrepresented defendants of the right to counsel and procedures for obtaining counsel.
d. Person arrested in other counties on local warrants must be appointed counsel within 1 working day of receipt of the request in counties with a population of 250,000 or more and within 3 working days of receipt of the request in counties under 250,000.
e. Persons arrested on out-of-county warrants must be appointed counsel 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.
f. 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 105th District Court . The defendant may submit these forms to: the 105th District Court or the District Clerk. The court will rule on all requests for counsel submitted in this manner.
Attorney Selection Process
10.a. The appointing authority will identify which attorney lists, discussed in the Section 6 (attorney qualifications), is most appropriate based on the accusations against the defendant and will appoint the attorney whose name is first on the list, if not, the magistrate may consider the next five attorneys on the list if an attorney is appropriate, unless the court makes a finding of good cause on the record for appointing an attorney out of order. Good cause may include:
1.The defendant requesting counsel does not understand English, in which case the judge will appoint the lawyer whose name appears next in order and speaks the clients’ language, if one is available;
2.The defendant has an attorney already appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter, unless the attorney is not on the list for the type of
offense involved in the current case; or
3.Other good cause exists for varying from the list.
b.Once appointed, an attorney’s name will be moved to the bottom of the appointment 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 Case:
1.The judge presiding over a criminal case may remove appointed counsel upon entering an oral or written order showing good cause for such removal, including without limitation, the following:
a.Counsel’s failure to appear at a court hearing;
b.Counsel’s failure to comply with the requirements imposed upon counsel 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 these rules;
d.Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;
e.The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
f.The defendant requests an attorney, other than trial counsel, for appeal; or
g.The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.
2.Appointment of Replacement Counsel - Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.
d. Annual review of list of qualified attorneys.
The District Judges will conduct an annual review of the quality of the representation of the attorneys on the court appointed list at the first Board of Judges meeting of each year, said review to be
approved by the majority of the Judges.
Fee and Expense Payment Process
11. Compensation for Counsel:
Attorneys shall receive compensation according to the following schedule:
Flat Fees for the following:
Capital/Death Must be itemized
Capital/non-Death Must be itemized
Appeal $85.00 - $100.00 per hour
Attorney requesting attorney's fees in lieu of the flat fee for exception circumstances and described in attached and itemized documentation to support such request.
For Jury Trials:
In Court Hours $100.00 an hour
Out of Court Hours $60.00 an hour
Reimbursable expenses with prior approval (attach receipts)
Capital and Non-Capital - Attorney to itemize hours for in court and out of court hours.
a. A court may vary from the foregoing schedule to fairly compensate counsel in a particular case.
b. No payment shall be made until the judge approves payment after submission of attorney fee voucher.
c. 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. An attorney whose request for payment is disapproved or not acted on within 60 days of submission may appeal the disapproval or failure to act by filing a motion with the presiding judge of the administrative judicial region.
d. Expenses incurred without prior approval may not be reimbursed unless it is clear that expenses are reasonably necessary and reasonably incurred.
12. Fee Application; Documentation:
a. Except for good cause Counsel requesting payment must submit a written fee application in the form promulgated by the Court. The application must have attached to it any documentation to support expenses.
1. Court approved investigators to submit separate time sheets. Investigators fee not to exceed $50.00 per hour. Must have prior approval by Court for investigator.
b. A counsel appointed to represent a defendant in a criminal proceeding shall be paid a reasonable attorney's fee for performing the following services based on the time and labor required the complexity of the case, and the experience and ability of appointed counsel:
1. the time spent in court making an appearance on behalf of the defendant as evidenced by docket entry,
2. the time spent in trial,
3. the time spent in a proceeding in which sworn oral testimony is elicited,
4. the reasonable and necessary time spent out of court on the case, supported by documentation.
5. the time spent for the preparation of an appellate brief and presentation of oral argument to a Court of Appeals or the Court of Criminal Appeals; or
6. the time spent for the preparation of a motion for rehearing, all of which shall be subject to the discretion of the Court.
13. Bail Guidelines
a. In addition to the rules for setting bail provided by law, bail shall be set according to the following schedules:
b. In any case, the Court shall have discretion to set bail or to modify bail previously set by the Magistrate.
1. Capital Murder $100,000 or more;
2. First Degree Felony $25,000 to $100,000;
3. Second Degree Felony $15,000 to $50,000;
4. Third Degree Felony $2,500 to $5,000
5. State Jail Felony $1,500 to $10,000;
6. Class A Misdemeanor $1,000 to $5,000;
7. Class B Misdemeanor $500
14. Arraignment shall be set by a standing order of each court of the District Courts promptly after a Defendant is indicted.
15. Magistrate Court
a. The Magistrate may dispose of cases by accepting pleas of guilty or nolo contendre or pleas of true on Motions to Revoke as well as other proceedings as requested by District Judges.
b. A probable cause finding by the Magistrate does not preclude an examining trial.
16. Opt Out Rule
A District Court may opt out of any or all of the provisions of these Rules and may develop its own procedures that comply with the law.
17. Repeal of Conflicting Rules:
Upon the effective date of these Rules, all prior District Court Local Administrative Rules, Orders, practices and/or procedures in conflict with these Rules are repealed.
18. Determination of Repeal
In the event that a question arises regarding the repeal of a prior Rule, Order, practice and/or procedure, the Judges of the District Courts shall meet and decide by majority vote whether the prior Rule, Order, practice and/or procedure is repealed.
19. Effective date
These Rules are effective as amended on October 30, 2015 and effective immediately.
Kenedy Kleberg District and County Court Affidavit of Indigence.pdf (10/30/2015 11:21:00 AM) view
Kenedy Kleberg District and County Court Attorney Application for Appointment.doc (10/30/2013 4:22:09 PM) view
Kenedy Kleberg District and County Court Attorney Fee Schedule.pub (10/30/2015 11:48:32 AM) view
Kenedy Kleberg District and County Court Attorney Fee Voucher.pdf (10/31/2019 1:25:01 PM) view
Kenedy Kleberg District and County Court Magistrate’s Warning Form.doc (10/30/2013 4:20:08 PM) view
Kenedy Kleberg District and County Court Public Defender Plan or Proposal.pdf (10/30/2015 11:21:57 AM) view