Kenedy Juvenile Board Plan
In accordance with the Texas Fair Defense Act and §51.101 of the Texas Family Code (Appointment of Counsel Plan), the Juvenile Board of Kenedy County adopts the following to govern the process of application, appointment, attorney list selection, retention, and removal as it applies to appointing attorneys to represent indigent juveniles. It is the responsibility of the Juvenile Board to ensure competent representation of indigent juveniles.
§2.01. The Juvenile Board of Kenedy County
a. The Juvenile Board of Kenedy County consists of the County Judge, the District Judge and one public member who is a resident of Kenedy County. The Chief Administrative Officer of the Kleberg-Kenedy Counties Juvenile Probation Department is a non voting member of the board.
b. The public member shall be appointed by the Juvenile Board to serve a term of two years beginning on January 1 of each odd numbered year. The Board shall appoint or re-appoint the public member after September 1 of an even numbered year. The public member shall take the oath of office required of appointed persons, which oath shall be filed with the District Clerk. The public member may not serve more than four terms. The public member is entitled to reimbursement for any out-of-county travel expenses incurred in the performance of his or her duties as a member of the Board.
c. The Board meets as needed in accordance with the Texas Open Meetings Act.
d. The County Judge is the chair of the Board. As Chair, the County Judge operates and is responsible for the administrative duties of the Board.
e. The Board may impose policies; procedures and guidelines to implement this plan in order to guarantee effective representation to juveniles whose families may be indigent.
§2.02. Designation of Juvenile Courts
The Juvenile Board designates the County Court and the District Court as the Juvenile Court of Kenedy County. The County Court is designated as the primary Juvenile Court. The District Court is designated as the alternate Juvenile Court. §51.04(b)(c)(d), Tx.Fam.C.
§2.03. Juvenile Probation Department
The Juvenile Board supervises and has authority over the Kleberg-Kenedy Counties Juvenile Probation Department in accordance with the existing inter-local agreement between Kenedy County and Kleberg County and only to the extent of any juveniles who either are residents of or were arrested in Kenedy County.
§2.04. Juvenile Board Coordinator
a. The Juvenile Board shall designate a Coordinator who is responsible for performing the duties set forth in the next section.
b. The Coordinator need not be a resident of Kenedy County.
§2.05. Duties of Coordinator
The Coordinator shall perform the following duties:
a. Review financial statements of families to determine eligibility for appointment of counsel consistent with federal poverty guidelines;
b. Maintain and update a list of qualified attorneys in designated categories;
c. Receive and review attorney applications and coordinate with the Juvenile Board to designate by majority vote an appropriate category based on qualifications;
d. Investigate and/or verify attorney qualifications;
e. Maintain rotation schedule of attorneys in designated category;
f. Coordinate with the Office of Court Administration;
g. Insure compliance with policies and standards of the Task Force on Indigent Defense;
h. Receive and investigate complaints against appointed counsel;
i. Supervise and monitor appointed attorney fees payments;
j. Assist in all reporting requirements;
k. Take into consideration client/counsel language barriers and assign on as needed basis bilingual counsel;
l. Perform all other duties as designated by the Juvenile Board.
Prompt Detention Hearings
Sec. 2A Detention Hearings
a. If a child is taken into custody, the court must hold a detention hearing by second working day (after being taken into custody), or first working day if detained on Friday or Saturday.
b. Prior to a detention hearing, the court will inform the parents of the child's right to appointed counsel if they are indigent.
Indigence Determination Standards
Indigence Determination Standards
Sec. 2B Determination of Indigence
a. Upon the detention of a juvenile or the filing of a petition, the Coordinator or the Department shall determine whether the juvenile and his/her parents or guardians are indigent
b. In determining indigence, the Coordinator and/or the Department shall follow and apply the standards for determination indigence set by Kenedy County, the State of Texas, or the United States.
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
ii. “Net household income” in the case of a child is the income of the child’s parents or other person determined responsible for the support of the child. 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 person determined responsible for the support of the child has no income or lesser income.
iii. “Household” means all individuals who are actually dependent on the child’s parent(s) or person(s) deemed responsible for the support of the child, 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.
B. Eligibility for Appointment
i. A child is presumed indigent if any of the following conditions or factors are present:
1. At the time of requesting appointed counsel, a child is presumed indigent if the child’s parent(s) or other person(s) determined responsible for the support of the child is eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.
2. The net household income of the child’s parent(s) or other person(s) determined responsible for the support of the child 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;
3. The child’s parent(s) or other person(s) determined responsible for the support of the child 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; or
ii. The child who does not meet any of the standards above shall nevertheless be considered indigent if the child’s parent(s) or other person(s) responsible for the child is unable to retain private counsel without substantial hardship. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:
1. the nature of the 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 child, the child’s parent(s)/person(s) responsible, and other dependents of the child’s parent(s)/person(s) responsible;
5. child’s parent(s’) income or the income of other person(s) determined responsible for the support of the child;
6. source of income;
7. assets and property owned by the child, child’s parent(s), or other person(s) determined responsible for support of the child;
8. outstanding obligations;
9. necessary expenses; and
10. the number and ages of any siblings of the child.
iii. Factors NOT to be considered in determining indigence:
1. The resources available to friends or relatives of the child, other than the child’s parent(s) or other person(s) deemed responsible for the child, may not be considered in determining whether the child is indigent.
2. Only the child's parent(s) or other person(s) responsible for the child and the child’s financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
C. Indigence Proceedings:
i. The appointing authority can require the child and the child’s parent(s) or other person(s) responsible for the child to respond to questions about the child’s household financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
ii. 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 child is (or is not) indigent; or
2. Impeaching direct testimony of the child or the child’s parent(s)/person(s) responsible regarding the child’s indigence.
iii. 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.
iv. A child determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the child’s financial circumstances occurs.
1. A child’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of a court. The child’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 child’s parent(s)/person(s) responsible and the child’s financial circumstances; or
b. Additional information regarding the child’s parent(s)/person(s) responsible and the child’s financial circumstances that shows that they do not meet any of the standards for indigence contained in these rules.
2. If a child 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.
v. If the court determines that a child’s parent(s) or other person(s) responsible for the child 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 child’s parent(s) or other person(s) responsible for the child to pay during the pendency of the charges or, if found to have engaged in delinquent conduct or CINS, as court costs the amount that it finds the child’s parent(s) or other person(s) responsible for the child is able to pay.
Minimum Attorney Qualifications
§3. ATTORNEY PLANS
§3.01 Recognition of Plans
This plan recognizes a "B" list and an "A" list based on five categories of cases and attorneys according to the seriousness of the allegations against the juvenile. All attorneys must be approved by a majority of the Juvenile Board or judges to be placed on or removed from the appointment list. In addition, all attorneys must submit to the Texas Indigent Defense Commission by October 15th of each year through the online form a statement describing 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 which begins on October 1st and ends on September 30th.
§3.02. "B" List cases and attorneys
a. The "B" list cases include:
1. CINS [Children in need of supervision] allegations; and
2. delinquenct allegations without the possibility of commitment to the Texas Youth Commission [TYC]
b. The "B" list attorneys shall possess at least one of the following minimum qualifications:
1. One (1) year of experience as licensed attorney with prior juvenile or similar criminal court experience; or
2. Six (6) hours of continuing legal education specifically in the area of juvenile law from the last 12 month reporting period; and
3. Any combination of experience, training or support sufficient to demonstrate the ability to handle juvenile cases.
§3.03 "A" list cases and attorneys
a. The "A" list cases include:
1. Delinquency cases with the possibiity of commitment to TYC;
2. Cases with a determinate sentence possibility; and
3. Caes of discretionary transfer to the adult court.
b. The "A" list attorneys shall possess the following minimum qualifications:
1. Three (3) years of experience as a licensed attorney;
2. Counsel in at least 10 juvenile cases; and
3. Six (6) hours of continuing legal education specifically in the area of juvenile law from the last 12 month reporting period.
c. An attorney on the "A" list may represent a juvenile in any case.
An attorney on the "A" list may be appointed in the appeal of juvenile case.
§3.05. Board Certified Counsel
An attorney certified by the Texas Board of Legal Specialization in Juvenile Law may be appointed in the trial or appeal of any juvenile case.
§3.06. Continuing Legal Education Requirements
a. An attorney eligible for appointment under either list must complete a minimum of six hours of continuing legal education pertaining to juvenile law during each 12 month reporting period.
b. A reporting period is from September 1 to August 31 of each fiscal year.
c. 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.
d. Continuing legal education activity completed within a one year period immediately preceding an attorney's first reporting period may be used to meet the educational requirements for the initial year.
e. 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.
f. Each attorney on either list must annually submit an affidavit to theJuvenile Board detailing the criminal and/or Juvenile continuing legal education activities completed in the previous year. An attorney board certified in juvenile law may submit proof that he/she is currently so certified.
§3.07. Emergency Appointment
If no attorney qualified under this plan is immediately available for appointment to an indigent juvenile for a detention or preliminary hearing other than an adjudication or a disposition hearing, the Court may apoint any attorney who is not an attorney for the State on a temporary basis to represent the juvenile for a period of not more than 10 days. The 10 day period may not be extended. On or before the tenth day of an emergency appointment, the Court shall appoint an attorney qualified under this plan.
§3.08. Eligibility for Appointment
To be eligible for appointment in a juvenile case, an attorney must be licensed to practice law in the State of Texas.
§3.09. Form of Application
An attorney shall complete, sign under oath,and submit to the Juvenile Board an application in the form approved by the Juvenile Board for placemement in either plan;
Minimum Attorney Qualifications for Juveniles (Medium and Small Counties)
Prompt Appointment of Counsel
§4. APPOINTMENT PLAN AND PROCEDURES4.014
§4.01. Coordinator to inform Juvenile and Parents
a. The Coordinator shall inform the juvenile and his/her parents or guardians in writing the following:
1. that it is their responsibility to obtain counsel;
2. that a determination of indigence is based on the income and assets of the parent or other person responsible for the juvenile;
3. how to formally request the appointment of counsel;
4. of the form necessary to make a formal request for the apointment of counsel, and provide them a copy thereof;
5. that they may request the appointment of counsel at each of the following stages of the case;
(a) at an initial detention hearing;
(b) at the time the petition is served-on any of them;
(c) at any time; and
6. that it is their responsibility to complete and submit the application for the appointment of counsel to the Juvenile Court within three (3) days of service of the petition.
b. The Coordinator shall obtain the written receipt of the parents or guardians of the foregoing information and provide a copy thereof to the juvenile and the parents.
§4.02. Application for appointment of counsel
a. The appointment of counsel shall not be made without the cooperation from the parent/guardian of the juvenile in completing the required application, unless such lack of cooperation is waived or excused by the Judge.
b. The application form shall be completed and sworn to under oath by the parent/guardian who completed the form.
c. The Coordinator shall submit the completed form to the Juvenile Court within three(3) days.
d. The Juvenile Court shall make a prompt determination whether the juvenile's family is financially able to employ an attorney to represent the juvenile within the following time frames:
1. If the child was not represented by an attorney at the detention hearing and a determination was made to detain the child, the child shall immediately entitled to representation by an attorney.
2. If the child is not detained, the child must be appointed an attorney on or before 5th working day after the date the petition for adjudication, motion to modify, or discretionary transfer hearing was served on the child.
3. Unless the court finds that the appointment of counsel is not feasible due to exigent circumstances, the court shall appoint counsel within a reasonable time before the first detention hearing is held to represent the child at that hearing.
Attorney Selection Process
§4.03. Procedure for making appointment
a. In a manner consistent with Article 26.04(a), Texas Code of Criminal Procedure, the Juvenile Court shall select an attorney from the appointment list using a system of rotation, unless the Court appoints an attorney under Subsections (f), (h) or (i) of said Art. 26.04.
b. The Juvenile Court shall appoint attorneys from among the next five names on the appointment list in the order in which the attorney's name appears on the list, unless the Court makes a finding of good cause on the record for appointment out of order.
c. An attorney who is not appointed in the order in which his/her name appears on the list shall remain next in order on the list.
d. The appointed attorney shall be notified within one working day of the appointment.
e. If the juvenile is not released from detention, the attorney appointed shall make every reasonable effort to contact and interview the juvenile within one working day from notice of the appointment.
f. The appointed attorney shall remain the attorney of record until such time as the case is dismissed or final disposition is made.
g. The Juvenile Court, by a written Order may replace an attorney who does not comply with the requirement of diligent contact with the juvenile or for any other good cause stated in the Order.
§4.04. Attorney list selection
a. Upon the filing of an application by an attorney for appointment in indigent juvenile cases, the Juvenile Court may make a preliminary determination to place the applicant attorney in the appropriate attorney list.
b. At an open meeting, the Juvenile Board shall make a final determination whether an applicant attorney may be placed in the appropriate attorney list.
c. An attorney found to have rendered ineffective assistance of counsel to a juvenile or a defendant by an appellate court, a District Court, a Juvenile Court, or a Bar disciplinary committee shall not be eligible for placement in the juvenile-appointment list unless the finding was made more than five years prior to the application or re-application and unless the Juvenile Board unanimously votes to place the applicant on the attorney list.
§4.05. Voluntary removal from appointment list
An attorney may voluntarily remove himself or herself from the attorney appointment list by filing a letter with the Juvenile Board requesting such removal.
§4.06. Involuntary removal from appointment list
a. An attorney who fails to conduct himself or herself in a professional and ethical manner or who demonstrates an inability to effectively and competently handle a juvenile case may be removed from the appointment list.
b. Any Juvenile Board member may request in writing that the Board remove an attorney from the apointment list. The written request shall state the reasons for removal. The County Judge shall set the matter for hearing. The County Attorney shall prosecute the removal.
c. The subject attorney may elect to have the hearing open or closed to the public. The subject attorney may retain counsel. The subject attorney has the right to confront and cross-examine the witnesses against him or her and to present evidence favorable to said attorney.
d. Upon the close of the evidence and argument and after deliberations, the Juvenile Board shall, in open session, vote whether to remove the subject attorney from the list. The votes of the members of the Board shall be recorded.
e. If a majority of the Juvenile Board votes for removal, the subject attorney shall be removed immediately from the appointment list. The Board may determine the length of time not to exceed one year before which the attorney may be permitted to reapply for placement on the appointment list. The Board may set conditions for re-application, including, but not limitted to a specific number of hours of continuing legal education, the payment of costs or attorney's fees resulting from the removal action, and such other conditions related to the removal.
f. An attorney on the appointment list who becomes ineligible to remain on the list (e.g., upon suspension or disbarment as an attorney; or for arrest or conviction of a felony or an offense involving moral turpitude; or for other conduct bearing on the fitness of the attorney) may be removed from the list upon the written Order of the County Judge, which Order shall state the basis for such removal. At the written request of the subject attorney filed within 10 days of the removal, the Juvenile Board shall meet to determine by majority vote, whether to affirm the Order of the County Judge.
Fee and Expense Payment Process
§5. ATTORNEY'S FEE PAYMENT SCHEDULE
§5.01. Governing Law
An attorney appointed under this plan in a juvenile case shall be paid attorney's fees and shall be reimbursed for investigative and other expenses as required by §51.10, Texas Family Code, and as guided by Art. 26.05, Texas Code of Criminal Procedure.
Fee and Expense Payment Process for Juveniles
A. Court appointed counsel shall be compensated for all reasonable and appropriate services rendered in representing the accused. Compensation shall be reasonable for time and effort expended and will be in accordance with a fee schedule adopted and approved by the Juvenile Board.
B. Payment Process - No payment of attorney’s fees will be made other than in accordance with the rules set forth below.
i. An appointed attorney shall fill out and submit a fee voucher to the court for services rendered.
ii. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.
1. If a judge disapproves a request for compensation, the judge shall make written findings, stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.
2. An attorney whose request for payment is disapproved or is not otherwise acted on by the 60th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of this administrative judicial region.
C. Payment of Expenses:
i. Court appointed counsel will be reimbursed for reasonable and necessary expenses incurred, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior approval shall be paid according to the procedures set forth below. Whenever possible prior court approval should be obtained before expenses are incurred.
ii. Procedure With Prior Court Approval:
1. 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 the below, as applicable:
a. The type of investigation to be conducted or the type of expert to be retained;
b. Specific facts that suggest the investigation will result in admissible evidence or that the services of an expert are reasonably necessary to assist in the preparation of a potential defense; and
c. An itemized list of anticipated expenses for each investigation and/or each expert.
2. 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:
a. State the reasons for the denial in writing;
b. Attach the denial to the confidential request; and
c. Submit the request and denial as a sealed exhibit to the record.
iii. Procedure Without Prior Court Approval:
1. Appointed counsel may incur investigative or expert expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred. Unreasonable or unnecessary expenses will not be approved.
Kenedy Juvenile Board Attorney Fee Schedule.pdf (3/29/2011 10:35:02 AM) view
Kenedy Juvenile Board Attorney Fee Voucher.pdf (3/29/2011 10:35:38 AM) view