Upshur County Court Plan
UPSHUR COUNTY COURT STANDING RULES
FOR TIMELY AND FAIR APPOINTMENT OF COUNSEL
UPSHUR COUNTY, TEXAS
Effective Date - April 7, 2010
Be it remembered that on this date the County Judge for Upshur County, Texas, hereby adopts, orders, establishes and orders published these countywide procedures, rules, and orders for the timely and fair appointment of counsel for indigent accused persons in the Upshur County Court. This document is the plan for the Upshur County Court and is meant to conform with the requirements of Article 71.0351 of the Texas Government Code. This plan supercedes all plans previously approved by the Upshur County Court.
The Justices of the Peace of Upshur County, Texas shall establish and maintain a plan and rotate holding magistrate’s hearings each and every morning at 11:00 a.m. Each accused person shall be brought before a magistrate within 48 hours of arrest for proceedings under Article 15.17 of the Code of Criminal Procedure.
At the Magistrate Probable Cause hearing the responsible Justice of the Peace shall:
Admonish the accused of the magistrate and Miranda warnings as provided by law;
Inform the accused of indigent representation rights;
Make a record of the magistrate warnings and admonitions regarding the right to court appointed counsel for indigent accused persons;
Inform the accused of right to counsel and right to court appointed counsel if indigent;
Inquire as to whether the defendant is requesting court appointed counsel;
Provide defendant with an Affidavit of Indigence and reasonable assistance in completing said forms; and
The Justice of the Peace shall appoint counsel from the approved appointment list for the Upshur County Court if the accused meets the standards of indigency as set out herein.
The Justice of the Peace must appoint counsel within 3 working days.
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.
Requests for counsel made by persons arrested on out-of-county warrants must be transmitted to the appointing authority of the county issuing the warrant within 24 hours of the request being made.
Indigence Determination Standards
PROCEDURES AND FINANCIAL STANDARDS FOR DETERMINING INDIGENCE STATUS
At the Magistrate’s Probable Cause hearing, each defendant shall be provided an opportunity to request court appointed counsel, if indigent. Each requesting defendant shall complete and file an Application for Court Appointed Attorney (Exhibit A). The Magistrate will ensure that the defendant receives reasonable assistance in completing the necessary forms for requesting appointment of counsel. 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 the Texas Code of Criminal Procedure Articles 38.30 and 38.31.
The Magistrate shall IMMEDIATELY transmit the Probable Cause Order, the Affidavit of Indigence, Defendant’s Request for Court Appointed Counsel and Order Appointing Counsel to the County Clerk in misdemeanor cases. The County Clerk shall IMMEDIATELY notify the County Judge’s Office of the appointment. In making court appointments of counsel for indigents the Justices of the Peace shall review the Affidavit of Indigence and such other information bearing on the financial status of the defendant and make a determination of indigent status and appoint counsel where required by law within 3 working days after receiving the request for court appointed counsel.
Whether the defendant has posted bail shall not be considered in determining indigency, except to the extent that it reflects on the defendant’s financial circumstances.
The following standards, along with such other reasonable factors as the Court finds bearing on the financial ability of a defendant to retain counsel, shall be used in determining indigence:
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.
B. Eligibility for Appointment
i. 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 100% 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.
ii. 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;
5. accused’s income,
6. source of income,
7. assets and property owned,
8. outstanding obligations,
9. necessary expenses,
10. the number and ages of dependents, and
11. spousal income that is available to the accused.
iii. 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.
iv. 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.
C. Indigence Proceedings:
i. 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.
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 accused is (or is not) indigent; or
2. Impeaching direct testimony of accused regarding the accused’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 and contained in Code of Criminal Procedure article 1.051.
iv. 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 circumstances that 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.
v. 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
Attorneys may apply to be included on the Upshur County Court Public Appointment List, at any time, by completing and submitting to the Court, the Attorney Application for Appointment (See Attachment). Attorneys must certify under oath that he or she has met the following minimum qualifications and that he or she shall personally represent each client to whom he or she is appointed. The minimum qualifications are:
Currently licensed and in good standing with the State Bar of Texas;
Exhibited proficiency and commitment to providing quality representation to criminal defendants;
Exhibits professionalism and reliability when providing representation to criminal defendants;
Six hours per year in continuing legal education courses relating to criminal defendants;
APPROVAL OF ATTORNEYS BY JUDGES
In addition to meeting the objective qualifications described above an attorney may be placed on the Upshur County Court Appointment List only if the Upshur County Judge approves the attorney’s placement on the list. At least semiannually, the Upshur County Judge shall review and evaluate the attorneys maintained on the list.
The Upshur County Judge shall ensure a current and correct copy of the Upshur County Court Public Appointment List is posted at the Upshur County Clerk’s Office.
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 on the approved list must maintain an office with a telephone which is answered by a receptionist, answering service, or answering machine from 8:00 a.m. to 12:00 p.m. and from 1:00 p.m. to 5:00 p.m. Monday through Friday (except for Upshur County holidays as set out in the official Upshur County calendar approved by the Upshur County Commissioner’s Court). Court appointed counsel on the approved list must maintain a facsimile number to which facsimile may be received 24 hours a day, seven days a week. These numbers shall be included on the Attorney Application for Appointment and shall be the official numbers which will be utilized by the Court to inform counsel of appointment or court hearings. Any change in these notification numbers must be given in writing to the Upshur County Judge's office prior to the change.
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, after entering a finding of good cause on the record, relieves the attorney and/or replaces the attorney with other counsel.
Each 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 Upshur County for adult criminal cases and juvenile delinquency cases for the prior twelve month period that begins on October 1st and ends on September 30th. The report must be submitted on the form prescribed by the Texas Indigent Defense Commission to the Upshur County Auditor's office.
Prompt Appointment of Counsel
PROMPT APPOINTMENT OF COUNSEL
The arresting officer shall ensure that the next morning after arrest at 11:00 a.m. every arrestee shall be brought before a magistrate to hold a probable cause hearing and set bail and inform the accused person of their rights including right to court appointed counsel and procedures for obtaining counsel if indigent [Art. 1.051(f-2), CCP].
When an eligible defendant submits the required documents for the appointment of counsel, the request and documents required will be transmitted to the appointing authority (the court or the court’s designee) within 24 hours of request.
If a defendant wishes to request counsel prior to, or after 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 Upshur County Judge's office. The defendant may submit these forms to the Upshur County Judge's office. The court will rule on all requests for counsel submitted in this manner.
If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within 3 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 11th day after the arrest, the defendant is still in this county’s custody.
Persons appearing in court without counsel will be advised of the right to counsel and procedures for obtaining counsel.
Attorney Selection Process
APPROVAL OF ATTORNEYS BY JUDGE
In addition to meeting the objective qualifications described above an attorney may be placed on the Upshur County Court Public Appointment List only if the Upshur County Judge approves the attorney’s placement on the list. At least semiannually, the Upshur County Judge shall review and evaluate the attorneys maintained on the list.
The Upshur County Judge shall ensure a current and correct copy of the Upshur County Court Public Appointment List is posted at the Upshur County Clerk’s Office.
APPOINTMENT OF COUNSEL
Attorneys will be appointed on a rotational basis from among the next five names on the appointment list, in the order in which the attorneys' names appear on the list, unless the Court makes a finding of good cause, on the record, for appointing an attorney out of order.
GROUNDS FOR REMOVAL FROM APPOINTMENT LIST
An attorney may be removed from the appointment list if the attorney:
No longer meets the objective qualifications for the list;
Has twice or more failed to contact or interview clients in a timely manner as required by Article 26.04(j)(1), Code of Criminal Procedure;
Has submitted a claim for legal services not performed as specified in Article 26.05(e), Code of Criminal Procedure;
Fails to maintain compliance with each of the appointment list guidelines;
Has been found by a Court to have provided ineffective assistance of counsel;
Has violated a rule of professional responsibility;
Has been convicted of or received a deferred adjudication for any offense, other than an offense punishable by a fine only;
Is under indictment or being formally charged with an offense, other than an offense punishable by a fine only;
Has intentionally misrepresented statements on the Attorney Application for Appointment;
Is not fully competent to adequately handle the misdemeanor cases; or
Has misrepresented information on an Attorney Fee Voucher or Claim for Reimbursement.
An attorney may also be removed from the appointment list for good cause determined by the Upshur County Judge.
If a the Upshur County Judge believes that an attorney has violated any of the provisions listed in the paragraph above, the Judge may remove said attorney from the Upshur County Court Public Appointment List.
Fee and Expense Payment Process
COMPENSATION OF COURT APPOINTED COUNSEL
Upon termination of representation, an attorney appointed from the Upshur County Court Public Appointment List shall submit an Attorney Fee Voucher (See Attached) to the Upshur County Court. The Attorney shall receive reasonable compensation in accordance with the Schedule of Upshur County Court Appointed Attorney's Fees adopted by formal action of the Upshur County Judge (See Attached).
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. [Art. 26.05(c), CCP]
An attorney whose requst 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.
DUTIES OF ATTORNEY SEEKING REVIEW OF TRIAL COURT’S ORDER
An attorney who chooses to appeal the trial court’s disapproval of the requested attorney’s fees shall file a motion with the Presiding Judge of the Administrative Judicial Region within twenty (20) days of the trial court’s signing of an order disapproving the requested court appointed attorney’s fee.
The appealing attorney shall set forth in his motion the following information:
The cause number, style and caption of the case;
The type and classification of the offense;
The date the attorney was appointed;
The date the case was disposed;
Whether the case was disposed of by dismissal, plea, bench trial, or jury trial;
The date and length of each court appearance within the nearest one-tenth of an hour, if the attorney is requesting to be compensated based upon an hourly fee;
The date of each office conference or jail conference and the time spent within the nearest one-tenth of an hour;
A copy of any itemization submitted to the trial court for the purpose of payment including a statement of each date a service was rendered, the type of service rendered, the time expended in the rendering of said service, the expenses incurred, and a statement explaining any attached vendor’s invoice or expert’s services invoice;
Any factors that require unusual effort on the attorney’s part to overcome in the representation of the defendant including but not limited to, need for an interpreter, uncharged crimes and Penal Code Section 12.45 issues, multiple defendant, etc.;
The date the fee order, the subject of the motion, was signed;
A detailed statement by the attorney explaining how the trial court’s order disapproving the requested court appointed attorney’s fee deviated from the Court’s approved fee schedule adopted under the Texas Fair Defense Act.
The appealing attorney shall attach the following documents to the motion:
A copy of the trial court’s order disapproving the requested court appointed attorney’s fee, if any; and
A copy of the Court’s attorney fee schedule adopted pursuant to the Texas Fair Defense Act.
The appealing attorney shall file the original of the motion with the Upshur County Clerk, and shall file a certified copy of the motion with the Presiding Judge of the Administrative Judicial Region and with the trial court. The Presiding Judge of the Administrative Judicial Region shall abate any ruling on the motion for a period of not less than ten (10) days from the filing of the motion pending an opportunity for further review by the trial court.
After receiving the motion, the trial court may enter a revised payment order within the ten (10) day period following the filing of the motion. The trial court shall file a copy of the revised payment order with the Presiding Judge of the Administrative Judicial Region.
If a revised payment order is entered resolving the dispute to the satisfaction of the appealing attorney, the attorney shall filed with the Presiding Judge a notice withdrawing the appeal. The motion will then be deemed moot and no further action will be taken by the Presiding Judge of the Administrative Judicial Region.
If the trial court’s revised payment order does not fully resolve the issue to the satisfaction of the appealing attorney, the attorney shall, within five (5) days of the signing of the trial court’s revised payment order, file with the Presiding Judge of the Administrative Judicial Region and the trial court a notice stating that the matter remains subject to contest. The attorney shall attach a copy of the trial court’s revised payment order to said notice. The trial court shall, within five (5) days of the filing of the notice of contest, file written findings that set forth in detail the reason(s) for disapproving the requested attorney’s fee.
If the trial court does not enter a revised payment order, the trial court shall, within five (5) days of the filing of the motion, file written findings that set forth in detail the reason(s) for disapproving the requested attorney’s fee.
If the Presiding Judge of the Administrative Judicial Region has not received notice of a resolution of the appeal prior to the expiration of ten (10) days from the filing of the motion, the Presiding Judge shall rule on the motion in accordance with the provisions of 26.05(c), Texas Code of Criminal Procedure.
APPOINTMENT OF INVESTIGATORS AND EXPERTS FOR INDIGENT DEFENSE
Counsel appointed in a misdemeanor case shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts in accordance with the Schedule of Upshur County Court Appointed Fees (See Attached).
Upshur County Court Affidavit of Indigence.doc (4/7/2010 4:25:41 PM) view
Upshur County Court Attorney Application for Appointment.doc (4/7/2010 4:26:42 PM) view
Upshur County Court Attorney Fee Schedule.docx (3/6/2020 4:03:54 PM) view
Upshur County Court Attorney Fee Voucher.doc (4/7/2010 4:27:32 PM) view