Brazos District Court and County Court Plan
Preamble
4/4/2014

To implement the Texas Fair Defense Act, the following Local Rules of Administration are adopted under Texas Government Code §74.093, Texas Code of Criminal Procedure, Article 26.04 et. seq., and Texas Family Code §51.102.  These rules shall be effective November 1, 2013, subject to the approval of the Presiding Judge of the Second Administrative Judicial Region.  All prior indigent defense plans adopted are superseded by these rules.

 

Rule 1. Applicability

 

1.01            Scope.  These rules will govern:

 

(a).       criminal procedures relating to the appointment of counsel to represent indigent adult defendants in all juvenile, county and district courts in Brazos County; and

 

(b).       civil procedures relating to the appointment of counsel to represent indigent juvenile offenders in Brazos County.

 

1.02            Limitation.  Nothing contained in these rules shall be interpreted to require or compel appointment of counsel in any criminal case or juvenile case involving a Class C misdemeanor or contempt of child support.

 

1.03            Prior Orders.  Nothing contained in these rules shall affect the validity of any court order entered prior to the effective date of these rules.

Normal 0 false false false EN-US X-NONE X-NONE
Prompt Magistration
11/2/2015
 

3.06   Assignment of Attorneys.  The following method shall be used to assign attorneys from the appropriate public appointment list to represent individual defendants:

 

(a)        Prompt Appearance Before a Magistrate. The law enforcement officer making the arrest and any officer who later has custody of a defendant shall ensure that the defendant is taken before any magistrate (Justice of the Peace) authorized by law without unnecessary delay, but not later than 48 hours after the defendant was arrested. The magistrate (Justice of the Peace)  before whom the defendant was brought shall administer the required magistrate's warnings, set bail, if appropriate, and provide the defendant with an application for court appointed attorney and assistance in completing the application, if appointment of counsel is requested by the individual arrested.

 

(b)        Out of County.  If the defendant is taken before a magistrate of a county other than the county that issued the warrant, the magistrate (Justice of the Peace) shall inform the defendant of the procedures for requesting appointment of counsel and ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the defendant at the same time.  If the defendant requests the appointment of counsel, the magistrate (Justice of the Peace) shall, without unnecessary delay, but not later than 24 hours after the defendant requested the appointment of counsel, transmit, or cause to be transmitted, the necessary request forms pursuant to Section 3.06(c) for forwarding to the county issuing the warrant.

 

(c)        Transmittal of Request for Appointed Counsel.  Any magistrate (Justice of the Peace) who administers magistrate’s warnings to a defendant shall make a written note on any request for appointment of counsel of the date and time the request was made.  Pursuant to §15.17, Texas Code of Criminal Procedure, the magistrate (Justice of the Peace) shall, as soon as possible, without unnecessary delay, but not later than 24 hours after the defendant requests appointment of counsel, transmit or cause to be transmitted to the Brazos County Associate Court 1, as authorized under §26.04, Texas Code of Criminal Procedure, the forms requesting appointment of counsel for defendants charged with a Class A or B misdemeanor or any felony other than a capital felony.  If the arrested individual is charged with a capital felony, the request and any documentation shall be delivered within twenty-four (24) hours to the Local Administrative District Judge, who shall determine indigency and appoint counsel within three (3) working days after the request is received.

 

(d)        Brazos County Associate Court 1 to Determine Indigency and Appoint Counsel for Incarcerated Individuals. If the defendant requesting appointment of counsel remains incarcerated on the charges, the Associate Court 1, shall, within three (3) working days after the request for appointment of counsel is received by the Associate, determine whether or not the requesting defendant is indigent and, if found to be indigent or otherwise qualifies pursuant to Section 2.03(a) or (b) above, shall appoint an attorney from the appropriate list. In determining which attorney to appoint, the Associate Court 1 shall appoint the attorney whose name next appears in order on the public appointment list that corresponds to the most serious offense as currently charged, unless any of the following circumstances exist, which override the sequential appointment preference:

 

(1)        if the defendant requesting appointed counsel does not understand English, an attorney who can communicate with the defendant in the defendant’s language is preferable to one who cannot;

 

(2)        if the defendant requesting appointed counsel has pending charges in which he has previously been appointed counsel, the attorney who was previously appointed should be appointed;

 

(3)        if the defendant requesting appointed counsel has been arrested on both felony and misdemeanor charges, or has pending felony charges at the time of a misdemeanor arrest, an attorney from the appropriate Felony List should be appointed; or

 

(4)        if the defendant requesting appointed counsel has been arrested on any motion to proceed with adjudication or motion to revoke community supervision, and the attorney who represented the defendant at the time the defendant was placed on supervision continues to be on the appropriate public appointment list, the attorney who represented the defendant previously should be appointed.

 

(e)        Out of County Appointments.  If the defendant is arrested under a warrant issued in a county other than the county in which the arrest was made and the defendant is entitled to and requests appointed counsel, Associate Court 1 shall appoint counsel within the periods prescribed by section 3.06(d) above, regardless of whether the defendant is present within the county issuing the warrant and even if adversarial judicial proceedings have not yet been initiated against the defendant in the county issuing the warrant.  However, if the defendant has not been transferred or released into the custody of the county issuing the warrant before the 11 day after the date of the arrest and if counsel has not otherwise been appointed for the defendant in the arresting county, the Associate Court 1 shall immediately appoint counsel to represent the accused in any matter under Chapter 11 or 17, regardless of whether adversarial judicial proceedings have been initiated against the accused in the arresting county.  If counsel is appointed for the defendant in the arresting county as required by the subsection, the arresting county may seek from the county that issued the warrant reimbursement for the actual costs paid by the arresting county for appointed counsel.

 

(f)        Limitation on Appointment after Overriding Circumstance.  When any attorney is appointed out of order due to an overriding circumstance, that attorney shall not receive another sequential appointment until every other attorney on that list has received an appointment in that rotation (but may receive additional overriding circumstance appointments). 

 

(g)        Ad Hoc Distribution of Appointments in the Trial Court.  The Court may deviate from the rotation system and appoint an attorney in that court who is specifically qualified under the Plan on an ad hoc basis to represent indigent defendants upon a finding of good cause to deviate from the rotation system.

 

(h)        Determination of Indigency and Appointment Counsel for Individuals Not Incarcerated. If the individual requesting appointment of counsel has been released from custody and charges have been filed, the Associate Court 1 Judge shall review the application and determine indigency of the defendant.  If the defendant requesting appointment of counsel was initially denied an attorney, that defendant may contact the Associate Court 1 in person or by telephone, between 9 a.m. and 11:30 a.m. and 2 p.m. and 4 p.m., Monday through Thursday, or may call for an appointment to complete a new application which will be considered and ruled on immediately. The misdemeanor request and any related documentation shall be maintained by the Associate Court 1 Judge and delivered to the assigned court upon the filing of a charging instrument by either the District Attorney or the County Attorney.  The Associate Court 1 Judge shall deliver all felony requests and any related documentation to the Associate Court 2 Judge, who shall maintain and deliver to the assigned court upon the filing of a charging instrument by either the District Attorney or the County Attorney. Upon filing of any request for appointment of counsel, the District Clerk shall deliver the request to the assigned court.

 

(i)         TDCJ Inmates Charged with Offenses Committed While in TDCJ Custody.  Notwithstanding anything herein to the contrary, if the court determines that a defendant before the court is indigent and is an inmate charged with an offense committed while in the custody of the Institutional Division of the Texas Department of Criminal Justice, the court may request the Office of the State Counsel for Offenders to provide legal representation to that defendant in accordance with Tex. Code Crim. Proc. Art. 26.051 and the policies and procedures established by the Texas Board of Criminal Justice.

 

3.07     Notice of Determination that the Defendant is Not Indigent.   If the person making the indigency findings, determines that a person who requests appointment of counsel is not indigent, that finding shall be entered on the request for appointment of counsel and file the original with the other orders in the case and cause a copy to be returned to the requesting person.

 

3.08     Notice of Determination that the Defendant is Indigent and Appointment of Counsel.   If the person making the appointment finds that a defendant who requests counsel is indigent or otherwise qualifies under Section 2.03(a) or Section 2.03(b), an order appointing counsel shall be completed and a copy delivered to the appointed counsel, to the indigent defendant, to the prosecutor with jurisdiction over the charge, and the original delivered to the assigned court to be filed with the orders in the case.  Immediately after an order appointing counsel is signed, the appointing judge shall notify the appointed attorney of the appointment by at least one of the following methods: telephone, facsimile transmission, electronic mail, in person, or other means of immediate communication.

 

 
 
3.09     Attorney Acceptance of Appointment and Contact with the Defendant.  The appointed attorney is required to provide the court, within 72 hours of receiving the notice of appointment, an acknowledgment of the appointment and a confirmation that the attorney has made the reasonable effort required under Article 26.04(j)(1) to contact the defendant by the end of the first working day after the date of the appointment.
 
(a)        The appointed attorney shall deliver an acknowledgment and confirmation in written form to the appointing judge or person(s) designated by the judges to appoint counsel.
 
(b)        The acknowledgment and confirmation shall be delivered by hand, by facsimile, by electronic mail, or by such other means as the judges may approve.
 
3.11    Defendants Appearing Without Counsel.  If any defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement, the court may not direct or encourage the defendant to communicate with the attorney representing the state until the court advises the defendant of the right to counsel and the procedure for requesting appointed counsel and the defendant has been given a reasonable opportunity to request appointed counsel.
Indigence Determination Standards
11/2/2015

Rule 2. Determination of Indigency

 

2.01      Definitions.

 

(a).       “Indigent” means a person who is not financially able to employ counsel, using the financial standards established in these rules.

 

(b).       “Net household income” means all income of the defendant and spousal income actually available to the Defendant.  Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); overtime, severance pay, unemployment benefits, financial aid assistance, disability or workman’s compensation;  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, regular payments from Social Security, veteran’s benefits, food, rent or household expenses received in lieu of wages or as a result of any agreement to share household expenses, income of persons claiming defendant as a tax exemption for federal tax purposes, tax refunds, gifts, one-time insurance payments or compensation for injury.  Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the defendant has no income or lesser income.

 

(c).       “Non-exempt assets and property” means cash in the defendant’s possession or control, stocks and bonds, accounts at financial institutions, and equity in real or personal property that can be readily converted to cash, other than assets and property exempt from attachment under state law.

 

(d).       “Household” means all individuals who are actually dependent on the defendant for financial support or upon whom the Defendant is dependent for financial support. 

 

(e).       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.

 

2.02      Financial Standards for Determining Indigency.  The following financial standards shall be used to determine whether a defendant is indigent and shall be applied equally to each defendant in the county.

 

            (a).       A defendant is considered indigent if:

 

(1)     the defendant’s net household income does not exceed 125% of the Poverty Guidelines as established and revised annually by the United States Department of Health and Human Services and published in the Federal Register;  and

 

(2)     the value of the non-exempt assets and property owned by the defendant:

 

a.       does not exceed $1,500;

 

b.       does not exceed $3,000 in the case of a defendant whose household includes a person who is age 60 or over, disabled, or institutionalized; or

 

c.       is insufficient to pay the cost of retaining competent private legal representation in Brazos County for the offense(s) with which the defendant is charged.

 

(3)     A defendant is considered indigent if, at the time of requesting appointed counsel, the defendant or the defendant’s dependents (biological or adopted child under the age of 18) have been determined to be eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.

 

(4)     A defendant is considered indigent if the defendant is:

 

a.       currently serving a sentence in a correctional institution, residing in a public mental health facility, or is the subject of a proceeding in which admission or commitment to such a mental health facility is sought; and

 

b.       has no non-exempt assets or property in excess of the amounts specified in Rule 2.02(a)(2).

 

2.03      Partial Indigency.  A defendant determined to be partially indigent shall be eligible for appointment of counsel only upon payment to the county of the designated fee schedule as set forth in this Plan for misdemeanors, felonies, or a combination thereof.  If a defendant determined to be partially indigent pleads or is found guilty, the county may order the defendant to comply with a payment schedule to reimburse the county for all indigent defense costs in the case.

 

(a).       A defendant shall be considered partially indigent if the defendant does not meet the standards for indigence set forth in paragraph 2 and:

 

(1).       The defendant’s net household income is greater than 125% but does not exceed 175% of the Poverty Guidelines as established and revised annually by the United States Department of Health and Human Services and published in the Federal Register; and

 

(2).       The value of the non-exempt assets and property owned by the defendant:

 

a.       does not exceed $2,500.00;

 

b.       does not exceed $5,000.00 in the case of a defendant whose household includes a person who is age 60 or over, disabled, or institutionalized; or

 

c.       does not exceed the estimated costs of obtaining private legal representation on the offense(s) with which the defendant is charged.

 

(b).       A defendant who does not meet any of the financial standards above shall nevertheless be determined to qualify for court appointed counsel if the defendant is otherwise unable to retain private counsel without substantial hardship to the defendant or the defendant’s dependents, taking into account the nature of the criminal charge(s), the anticipated complexity of the defense, the estimated cost of obtaining competent private legal representation for the matter charged, and the amount needed for the support of the defendant and the defendant’s dependents.

 

2.04      Limitation.  The judge determining indigency shall not consider whether the defendant has posted bail, except to the extent that it reflects on the defendant’s financial circumstances.

 

2.05      Procedure.  Each person arrested who chooses to request the appointment of counsel, shall complete a sworn Application for Court Appointed Attorney, on a form approved by the county court at law and district judges of Brazos County (See Appendix for approved forms).  The completed form shall be delivered to the judge or judge’s designee and utilized in determining the indigency of the requesting person. If counsel is appointed, the defendant shall have the continuing duty to notify the court immediately of any material change in the defendant’s financial circumstances.

 

2.06      Reimbursement.  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 if it does not impose a payment to be made through the Probation Department to the Fund for Indigent Defense of Brazos County.  §26.05(g), Texas Code of Criminal Procedure.

 

If convicted, the court may require a defendant who is unable to pay a fine or costs of court to discharge all or part of the fine or costs by performing community service with a governmental entity or nonprofit organization that provides services to the general public that enhance social welfare and the general well-being of the community.  The governmental entity or nonprofit organization that accepts a defendant must agree to supervise the defendant in the performance of the defendant’s work and report on the defendant’s work to the court-related services office.

 

2.07      Review of Indigency.  The defendant is presumed to remain indigent for the remainder of the case unless a material change in the defendant’s circumstances occurs.

 

(a)     The defendant’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 defendant, the defendant’s attorney, or the attorney representing the state.  The defendant’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:

     

(1)     Evidence of a material change in the defendant’s financial circumstances as a result of which the defendant does not meet any of the standards for indigence contained in these rules; or

 

(2)     Additional information regarding the defendant’s financial circumstances that shows that the defendant does not meet any of the standards for indigence contained in these rules.

 

(b)     If a defendant 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.  The court may take into consideration, a defendant’s subsequent ability to retain counsel, to require the defendant to reimburse court appointed attorney’s fees.

Normal 0 false false false EN-US X-NONE X-NONE
 
Minimum Attorney Qualifications
10/18/2016

Rule 3.  Selection and Appointment of Counsel in Criminal Cases

 

3.01      Method of Appointment.  Attorneys shall be appointed to represent indigent adult defendants from public appointment lists using an “alternative program” as described in Article 26.04(g) of the Texas Code of Criminal Procedure and as further specified in this rule.

 

3.02      Public Appointment Lists.  The judges hereby establish the following public appointment lists from which counsel for indigent defendants shall be appointed:

 

(a)     A Misdemeanor List consisting of attorneys eligible for appointment in Class A and B misdemeanors.

 

(b)     An Other Felony List consisting of attorney eligible for appointment in any non-capital felony case which is not:

 

(1)     an offense listed under Tex. Code Crim. Pro. Art. 42.12, Sec. 3g(a)(1); or

 

(2)     an offense for which the punishment may be enhanced under Tex. Pen. Code Sec. 12.42(b), (c) or (d).

 

(a)     A 3g/Enhanced Felony List consisting of attorneys eligible for appointment to represent indigent defendants in any non-capital felony case which is:

 

(1)     an offense listed under Tex. Code Crim. Pro. Art. 42.12, Sec. 3g(a)(1); or

 

(2)     an offense for which the punishment may be enhanced under Tex. Penal Code Sec. 12.42(b), (c) or (d)

 

(b)     A Capital Felony List consisting of attorneys eligible for appointment in capital felony cases.

 

(c)     An Appellate Attorney List consisting of attorneys eligible for appointment to represent indigent defendants on appeal from any Class A or B misdemeanor and any non-capital felony case.

 

3.03     

Attorney Qualifications. At least twice each year, on or before April 1st and October 1st, attorneys may apply to be included on one or more of the public appointment lists.  In order to be considered to receive appointments and, once approved, to continue to receive appointments to represent indigent felony defendants in Brazos County, an attorney must meet the following minimum qualifications:

  1. General Objective Qualifications to Receive Appointments.

 

  1. currently licensed and in good standing with the State Bar of Texas;

 

  1. consistently demonstrates commitment to providing effective assistance of counsel and quality representation to criminal defendants;

 

  1. consistently demonstrates professionalism, proficiency and reliability in representing criminal defendants, and indealing with the courts and opposing counsel;

 

  1. be of sound mind, as well as good moral and ethical character;

 

  1. not have been sanctioned by the court for failure to appear or any type of unprofessional or abusive conduct;

 

  1. not have been the recipient of any public disciplinary action by the State Bar of Texas or any other attorney licensing authority of any state or the United States within the last five (5) years;

 

  1. not have been convicted of any felony offense or of any misdemeanor involving moral turpitude within the last ten (10) years.For the purposes of this requirement, “convicted” includes, but is not limited to, serving any period of probation, community supervision, or deferred adjudication supervision under any order of a court of record, regardless of whether the charges were ultimately dismissed or not.

 

  1. not be delinquent in the payment of obligations to the State Bar of Texas, or to any taxing authority, including Brazos County, the State of Texas, and the United States;

 

  1. not be delinquent in the payment of any child support obligation;

 

  1. must have and maintain an office with a permanent physical address (other than a Post Office Box), together with a facsimile transmission machine and telephone capable of receiving information twenty-four (24) hours per day;

 

  1. timely and promptly respond to telephone, e-mail, regular mail or fax requests from each court;

 

  1. promptly notify the Brazos County Associate Judge 1, in writing of any changes of address, telephone, email or standing with the State Bar of Texas;

 

  1. annually file with the Brazos County Associate Judge 1, by the last day of the attorney’s birth month, an accurate copy of his/her State Bar of Texas Minimum Continuing Legal Education Annual Verification Report and a sworn “Annual Certification of Attorney” that he/she is in compliance with the general and specific qualifications required under this Plan;

 

  1. unless currently certified in criminal law by the Texas Board of Legal Specialization, must annually complete a minimum of six (6) hours of continuing legal education pertaining to criminal law;

 

  1. timely appear and represent each appointed defendant at each and every court date scheduled by the court.The only exceptions for a designated substitute attorney to appear for the appointed attorney will be for a docket appearance where previously approved by the trial court and with the approval of the defendant, and to consummate a previously negotiated case settlement with the approval of the trial court and the defendant;

 

  1. within 72 hours of receiving the notice of appointment, submit to the Court, an acknowledgment of the appointment and a confirmation that the attorney has made the reasonable effort required under Article 26.04(j)(1) to contact the defendant by the end of the first working day after the date of appointment;

 

  1. within ten days of receiving the notice of appointment personally interview any defendant incarcerated in the Brazos County Jail.A court MAY REPLACE AN ATTORNEY if the appointed attorney does not interview an incarcerated defendant within this ten day period;

 

  1. must appear for arraignment and pretrial proceedings and may not waive arraignment for an incarcerated defendant unless the waiver is signed by the defendant;

 

  1. comply with Art 28.01 Section 2 Code of Criminal Procedure;

 

  1. notify the court within 30 days of appointment, or as soon as information becomes available, of special accommodations necessary for the defendant, including but not limited to, the necessity of an interpreter;

 

  1. advise defendant of immigration consequences relating to criminal offenses;

 

  1. submit only a properly documented and accurate “Request for Motion for Court Appointed Attorney’s Fees / Approval; and

 

  1. with the exception of the appellate list, unless already approved for appointments in Brazos County, Texas, must live in Brazos County or contiguous counties.

 

  1. no later than October 15, submit 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 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.

 

(b)     Specific Objective Qualifications to Receive Appointments

 

(1)     Misdemeanor Cases

 

(a)     Practiced in the area of criminal law for at least one (1) year or exhibited professionalism and reliability when providing representation to criminal defendants.

(2)     Other Felony List.

 

(a)     Meet the minimum qualifications for placement on the Misdemeanor List;

 

(b)     Practiced in the area of criminal law for at least two (2) years;

 

(c)     Have tried to verdict at least two (2) criminal jury trials as lead counsel.

 

(3)     3g/Enhanced Felony List

 

(a)     Meet the minimum qualifications for placement on the Misdemeanor List;

 

(b)     Practiced in the area of criminal law for at least three (3) years; and

 

(c)     Have tried to verdict at least ten (10) criminal jury trials as lead counsel, five of which must have been felony trials.

 

(4)     Capital Felony List

 

(a)     Meet the minimum qualifications for placement on the 3g/enhanced Felony List;

 

(b)     Comply with the requirements of Article 26.052 of the Texas Code of Criminal Procedure; and

 

(c)     Be admitted to the Second Administrative Judicial Region’s List of Court-Appointed Counsel for Capital Felony Cases.

 

(5)     Appellate Attorney List

           

(a)     Meet the minimum qualifications on the Other Felony List; and

 

(b)     Unless currently certified in criminal law by the Texas Board of Legal Specialization, have acted as counsel on appeal in at least 3 separate criminal appeals.

 

3.04      Application and Approval of Attorneys by the Judges

 

(a)     Application.  Any attorney desiring to be placed on any public appointment list shall complete an application under oath on a form approved by the district and county court at law judges (See Appendix for approved forms).  The application shall be delivered to the Brazos County Local Administrative District Judge.

 

(b)     Misdemeanor List. In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(1) above, an attorney may be placed on the misdemeanor appointment list only if both of the County Court at Law Judges approves the attorney’s placement on the misdemeanor list.

 

(c)     Other Felony List.  In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(2) above, an attorney may be placed on the felony appointment list only if a majority of the district judges approves the attorney’s placement on the Other Felony List.

 

(d)     3g/Enhanced Felony List. In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(3) above, an attorney may be placed on the felony appointment list only if all three of the district judges approve the attorney’s placement on the 3g/Enhanced Felony List.

 

(e)     Capital Felony List.  In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(4) above, an attorney may be placed on the Capital Felony List only if all three of the district judges approve the attorney’s placement on the Capital Felony List.

 

(f)      Appellate Attorney List.  In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(5) above, an attorney may be placed on the Appellate Attorney List only if all three of the district judges and both of the county court at law judges approve the attorney’s placement on the Appellate Attorney List.

 

(g)     Action on Applications.  When an attorney’s application to be placed on a public appointment list is received by the Local Administrative District Judge, the Local Administrative District Judge shall prepare and route to the County Court at Law Judges and the District Judges an evaluation form (See Appendix for Form).  Each County Court at Law and District Judge shall evaluate the new applicants for each public appointment list and write his/her recommendation, approval, or disapproval on the evaluation form together with any comments, as appropriate, and forward the evaluation form to the next appropriate judge for consideration.  The last judge to act on the evaluation shall return the completed evaluation form to the Local Administrative District Judge who will determine whether the appropriate number of judges have approved the addition of the attorney to any list.  Each attorney wil be approved for addition to the appropriate list:

 

(1)     who meets the objective qualifications set forth in Rule 3.03 for placement on the list; and

 

(2)     whom the judges consider to be actually competent to adequately handle cases associated with the list.

 

An objective qualification requirement for any list may be waived by unanimous vote of the judges required for approval of an attorney for placement on any list.

 

(h)     Notification of Judge’s Action.  The Local Administrative District Judge shall notify each attorney by letter of the judges’ action on each application.  If the attorney’s application has been denied, the notification letter shall describe the reasons for the denial by reference to each qualification required by these rules which has not been met, and inform the attorney when another application may be considered. The Local Administrative District Judge shall transmit all retained documentation to the Associate Court 1 Judge.

 

(i)       Confidentiality.  The evaluations and communications between the courts and the attorneys relating to the applications to be placed on any appointed attorney list are records of the judiciary and not subject to public disclosure under the Texas Open Records Act.  However, any attorney desiring to review the completed evaluation form concerning the attorney’s application to be placed on any list may obtain a copy of the attorney’s evaluation by request to the Local Administrative District Judge.

 

(j)       Records Maintenance and Retention.  The Associate Court 1 Judge shall be responsible for and maintain each original application, completed evaluation, and records of MCLE compliance under these rules until a period of five (5) years after an attorney:

 

(1)     is denied addition to any appointed attorney list; or

 

(2)     is removed or otherwise no longer on any appointed attorney list.

 

3.05      Removal of Attorneys from Public Appointment List

 

(a)     An attorney may be removed, at any time, from one or more public appointment lists by a majority of the judges for the corresponding court level whenever the judges determine that the attorney:

 

(1)     no longer meets the objective qualifications for that list;

 

(2)     is not fully competent to adequately handle the category of cases associated with that list;

 

(3)     fails to annually certify completion of the required continuing legal education requirements;

 

(4)     repeatedly fails to comply with the time requirements imposed by the Texas Rules of Appellate Procedure, the Texas Code of Criminal Procedure, or any of this county’s local rules of administration;

 

(5)     submitted a claim for legal services not performed by the attorney;

 

(6)     has twice or more failed to contact or interview appointed defendants in a timely manner as required by Article 26.04(j)(1), Code of Criminal Procedure and this Plan;

 

(7)     has been found by a court to have provided ineffective assistance of counsel;

 

(8)     has been convicted or received deferred adjudication for any offense other than an offense punishable by a fine only;

 

(9)     is under indictment or being formally charged with an offense, other than an offense punishable by a fine only; or

 

(10) has been sanctioned by the State Bar of Texas or any other State.

 

(b)     The judges may, in their discretion, remove an attorney from one or more lists, while continuing to approve the attorney for other lists.

 

(c)     When a majority of the judges remove an attorney from any list, the Local Administrative District Judge shall inform the attorney in writing of the judges’ action and of the reasons for the removal.  Within 15 days following the date of the letter removing an attorney from any list, an attorney may then deliver to the Local Administrative District Judge a written request to appear before the judges en banc to appeal the decision.  A majority of the judges may reinstate the attorney.  If a majority of the judges do not vote in favor of reinstatement of the attorney, the original removal of the attorney from the list shall remain in effect.

 

(d)     Unless the notice of removal from an appointment list specifies a different duration of suspension or removal, any attorney removed from the list may reapply to be placed on that list after a period of one (1) year.

  

3.10      Reporting Requirements

 

(a)     Reporting Period. In determining compliance with the minimum continuing legal education requirements of these rules, the period used shall be the same as the MCLE compliance year used by the State Bar of Texas [See State Bar Rules, Art. XII, Sec. 2(L)].

 

(b)     CLE Reporting Requirement.   Not later than the last day of an attorney’s birth month each year, an attorney on any appointment list must submit to the Brazos County Associate Judge 1:

 

(1)     An affidavit signed by the attorney detailing the criminal continuing legal education activities completed in the prior year, with a copy of the State Bar of Texas Minimum Continuing Legal Education Annual Verification Report covering the reporting period (see Appendix for form);

 

(2)     An affidavit signed by the attorney, that the attorney is currently certified in criminal law by the Texas Board of Legal Specialization (See Appendix for form).

 

(c)     Carryover Limited to One Year. Continuing legal education activity completed during any reporting period in excess of the minimum six hour requirement for such period may be applied to the following period’s requirement.  The carryover provision applies to one (1) year only.        

 

(d)     Initial Reporting Period.  Continuing legal education activity completed within a two-year period immediately preceding an attorney’s initial reporting period may be used to meet the educational requirements for the initial year.

 

(e)     Failure to Timely File Compliance Affidavit.   Failure to timely file proof of compliance with the reporting requirements of Section 3.10 (a) and (b) will result in automatic suspension from the public appointment list(s) until proper documentation is provided.

 

(f)      Reporting Practice Information.   Each year, no later than October 15, an attorney shall submit 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 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.

Normal 0 false false false EN-US X-NONE X-NONE
Prompt Appointment of Counsel
10/18/2016

3.06     Assignment of Attorneys.  The following method shall be used to assign attorneys from the appropriate public appointment list to represent individual defendants:

 

  1. Prompt Appearance Before a Magistrate. The law enforcement officer making the arrest and any officer who later has custody of a defendant shall ensure that the defendant is taken before any magistrate (Justice of the Peace) authorized by law without unnecessary delay, but not later than 48 hours after the defendant was arrested. The magistrate (Justice of the Peace) before whom the defendant was brought shall administer the required magistrate's warnings, set bail, if appropriate, and provide the defendant with an application for court appointed attorney and assistance in completing the application, if appointment of counsel is requested by the individual arrested.

 

  1. Out of County.If the defendant is taken before a magistrate of a county other than the county that issued the warrant, the magistrate (Justice of the Peace) shall inform the defendant of the procedures for requesting appointment of counsel and ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the defendant at the same time.If the defendant requests the appointment of counsel, the magistrate (Justice of the Peace) shall, without unnecessary delay, but not later than 24 hours after the defendant requested the appointment of counsel, transmit, or cause to be transmitted, the necessary request forms pursuant to Section 3.06(c) for forwarding to the county issuing the warrant.

 

  1. Transmittal of Request for Appointed Counsel.Any magistrate (Justice of the Peace) who administers magistrate’s warnings to a defendant shall make a written note on any request for appointment of counsel of the date and time the request was made.Pursuant to §15.17, Texas Code of Criminal Procedure, the magistrate (Justice of the Peace) shall, as soon as possible, without unnecessary delay, but not later than 24 hours after the defendant requests appointment of counsel, transmit or cause to be transmitted to the Brazos County Associate Court 1, as authorized under §26.04, Texas Code of Criminal Procedure, the forms requesting appointment of counsel for defendants charged with a Class A or B misdemeanor or any felony other than a capital felony.If the arrested individual is charged with a capital felony, the request and any documentation shall be delivered within twenty-four (24) hours to the Local Administrative District Judge, who shall determine indigency and appoint counsel within three (3) working days after the request is received.

 

  1. Brazos County Associate Court 1 to Determine Indigency and Appoint Counsel for Incarcerated Individuals. If the defendant requesting appointment of counsel remains incarcerated on the charges, the Associate Court 1, shall, within three (3) working days after the request for appointment of counsel is received by the Associate, determine whether or not the requesting defendant is indigent and, if found to be indigent or otherwise qualifies pursuant to Section 2.03(a) or (b) above, shall appoint an attorney from the appropriate list. In determining which attorney to appoint, the Associate Court 1 shall appoint the attorney whose name next appears in order on the public appointment list that corresponds to the most serious offense as currently charged, unless any of the following circumstances exist, which override the sequential appointment preference:

 

  1. if the defendant requesting appointed counsel does not understand English, an attorney who can communicate with the defendant in the defendant’s language is preferable to one who cannot;

 

  1. if the defendant requesting appointed counsel has pending charges in which he has previously been appointed counsel, the attorney who was previously appointed should be appointed;

 

  1. if the defendant requesting appointed counsel has been arrested on both felony and misdemeanor charges, or has pending felony charges at the time of a misdemeanor arrest, an attorney from the appropriate Felony List should be appointed; or

 

  1. if the defendant requesting appointed counsel has been arrested on any motion to proceed with adjudication or motion to revoke community supervision, and the attorney who represented the defendant at the time the defendant was placed on supervision continues to be on the appropriate public appointment list, the attorney who represented the defendant previously should be appointed.

 

  1. Out of County Appointments.If the defendant is arrested under a warrant issued in a county other than the county in which the arrest was made and the defendant is entitled to and requests appointed counsel, Associate Court 1 shall appoint counsel within the periods prescribed by section 3.06(d) above, regardless of whether the defendant is present within the county issuing the warrant and even if adversarial judicial proceedings have not yet been initiated against the defendant in the county issuing the warrant.However, if the defendant has not been transferred or released into the custody of the county issuing the warrant before the 11 day after the date of the arrest and if counsel has not otherwise been appointed for the defendant in the arresting county, the Associate Court 1 shall immediately appoint counsel to represent the accused in any matter under Chapter 11 or 17, regardless of whether adversarial judicial proceedings have been initiated against the accused in the arresting county.If counsel is appointed for the defendant in the arresting county as required by the subsection, the arresting county may seek from the county that issued the warrant reimbursement for the actual costs paid by the arresting county for appointed counsel.

 

  1. Limitation on Appointment after Overriding Circumstance.When any attorney is appointed out of order due to an overriding circumstance, that attorney shall not receive another sequential appointment until every other attorney on that list has received an appointment in that rotation (but may receive additional overriding circumstance appointments).

 

  1. Ad Hoc Distribution of Appointments in the Trial Court.The Court may deviate from the rotation system and appoint an attorney in that court who is specifically qualified under the Plan on an ad hoc basis to represent indigent defendants upon a finding of good cause to deviate from the rotation system.

 

  1. Determination of Indigency and Appointment Counsel for Individuals Not Incarcerated. 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 Commissions’ website at http://tidc.tamu.edu/public.net/ or from https://www.brazoscountytx.gov/DocumentCenter/View/1383.The court will rule on all requests for counsel submitted in this order. All completed applications may be faxed to Associate Court 1 at 979-361-4559 or hand delivered to 300 East 26th Street, Suite 205, Bryan, Texas 77803 between 9 a.m. and 11:30 a.m. or 2 p.m. and 4 p.m., Monday through Thursday, or the defendant may call for an appointment to complete an application which will be considered and ruled on immediately. The misdemeanor request and any related documentation shall be maintained by the Associate Court 1 Judge and delivered to the assigned court upon the filing of a charging instrument by either the District Attorney or the County Attorney. The Associate Court 1 Judge shall deliver all felony requests and any related documentation to the Associate Court 2 Judge, who shall maintain and deliver to the assigned court upon the filing of a charging instrument by either the District Attorney or the County Attorney. Upon filing of any request for appointment of counsel, the District Clerk shall deliver the request to the assigned court.

 

  1. TDCJ Inmates Charged with Offenses Committed While in TDCJ Custody.Notwithstanding anything herein to the contrary, if the court determines that a defendant before the court is indigent and is an inmate charged with an offense committed while in the custody of the Institutional Division of the Texas Department of Criminal Justice, the court may request the Office of the State Counsel for Offenders to provide legal representation to that defendant in accordance with Tex. Code Crim. Proc. Art. 26.051 and the policies and procedures established by the Texas Board of Criminal Justice.

 

3.07      Notice of Determination that the Defendant is Not Indigent.   If the person making the indigency findings, determines that a person who requests appointment of counsel is not indigent, that finding shall be entered on the request for appointment of counsel and file the original with the other orders in the case and cause a copy to be returned to the requesting person.

 

3.08      Notice of Determination that the Defendant is Indigent and Appointment of Counsel.   If the person making the appointment finds that a defendant who requests counsel is indigent, an order appointing counsel shall be completed and a copy delivered to the appointed counsel, to the indigent defendant, to the prosecutor with jurisdiction over the charge, and the original delivered to the assigned court to be filed with the orders in the case.  Immediately after an order appointing counsel is signed, the appointing judge shall notify the appointed attorney of the appointment by at least one of the following methods: telephone, facsimile transmission, electronic mail, in person, or other means of immediate communication.

 

3.09      Attorney Acceptance of Appointment and Contact with the Defendant.  The appointed attorney is required to provide the court, within 72 hours of receiving the notice of appointment, an acknowledgment of the appointment and a confirmation that the attorney has made the reasonable effort required under Article 26.04(j)(1) to contact the defendant by the end of the first working day after the date of the appointment.

 

(a)     The appointed attorney shall deliver an acknowledgment and confirmation in written form to the appointing judge or person designated by the judges to appoint counsel.

 

(b)     The acknowledgment and confirmation shall be delivered by hand, by facsimile, by electronic mail, or by such other means as the judges may approve.

Normal 0 false false false EN-US X-NONE X-NONE
Attorney Selection Process
4/4/2014

Rule 3.  Selection and Appointment of Counsel in Criminal Cases

 

3.01      Method of Appointment.  Attorneys shall be appointed to represent indigent adult defendants from public appointment lists using an “alternative program” as described in Article 26.04(g) of the Texas Code of Criminal Procedure and as further specified in this rule.

 

3.02      Public Appointment Lists.  The judges hereby establish the following public appointment lists from which counsel for indigent defendants shall be appointed:

 

(a)     A Misdemeanor List consisting of attorneys eligible for appointment in Class A and B misdemeanors.

 

(b)     An Other Felony List consisting of attorney eligible for appointment in any non-capital felony case which is not:

 

(1)     an offense listed under Tex. Code Crim. Pro. Art. 42.12, Sec. 3g(a)(1); or

 

(2)     an offense for which the punishment may be enhanced under Tex. Pen. Code Sec. 12.42(b), (c) or (d).

 

(a)     A 3g/Enhanced Felony List consisting of attorneys eligible for appointment to represent indigent defendants in any non-capital felony case which is:

 

(1)     an offense listed under Tex. Code Crim. Pro. Art. 42.12, Sec. 3g(a)(1); or

 

(2)     an offense for which the punishment may be enhanced under Tex. Penal Code Sec. 12.42(b), (c) or (d)

 

(b)     A Capital Felony List consisting of attorneys eligible for appointment in capital felony cases.

 

(c)     An Appellate Attorney List consisting of attorneys eligible for appointment to represent indigent defendants on appeal from any Class A or B misdemeanor and any non-capital felony case.

 

3.03      Attorney Qualifications. At least twice each year, on or before April 1st and October 1st, attorneys may apply to be included on one or more of the public appointment lists.  In order to be considered to receive appointments and, once approved, to continue to receive appointments to represent indigent felony defendants in Brazos County, an attorney must meet the following minimum qualifications:

(a)     General Objective Qualifications to Receive Appointments.

 

(1)     currently licensed and in good standing with the State Bar of Texas;

 

(2)     consistently demonstrates commitment to providing effective assistance of counsel and quality representation to criminal defendants;

 

(3)     consistently demonstrates professionalism, proficiency and reliability in representing criminal defendants, and in  dealing with the courts and opposing counsel;

 

(4)     be of sound mind, as well as good moral and ethical character;

 

(5)     not have been sanctioned by the court for failure to appear or any type of unprofessional or abusive conduct;

 

(6)     not have been the recipient of any public disciplinary action by the State Bar of Texas or any other attorney licensing authority of any state or the United States within the last five (5) years;

 

(7)     not have been convicted of any felony offense or of any misdemeanor involving moral turpitude within the last ten (10) years.  For the purposes of this requirement, “convicted” includes, but is not limited to, serving any period of probation, community supervision, or deferred adjudication supervision under any order of a court of record, regardless of whether the charges were ultimately dismissed or not.

 

(8)     not be delinquent in the payment of obligations to the State Bar of Texas, or to any taxing authority, including Brazos County, the State of Texas, and the United States;

 

(9)     not be delinquent in the payment of any child support obligation;

 

(10) must have and maintain an office with a permanent physical address (other than a Post Office Box), together with a facsimile transmission machine and telephone capable of receiving information twenty-four (24) hours per day;

 

(11) timely and promptly respond to telephone, e-mail, regular mail or fax requests from each court;

 

(12) promptly notify the Brazos County Associate Judge 1, in writing of any changes of address, telephone, email or standing with the State Bar of Texas;

 

(13) annually file with the Brazos County Associate Judge 1, by the last day of the attorney’s birth month, an accurate copy of his/her State Bar of Texas Minimum Continuing Legal Education Annual Verification Report and a sworn “Annual Certification of Attorney” that he/she is in compliance with the general and specific qualifications required under this Plan;

 

(14) unless currently certified in criminal law by the Texas Board of Legal Specialization, must annually complete a minimum of six (6) hours of continuing legal education pertaining to criminal law;

 

(15) timely appear and represent each appointed defendant at each and every court date scheduled by the court.  The only exceptions for a designated substitute attorney to appear for the appointed attorney will be for a docket appearance where previously approved by the trial court and with the approval of the defendant, and to consummate a previously negotiated case settlement with the approval of the trial court and the defendant;

 

(16) within 72 hours of receiving the notice of appointment, submit to the Court, an acknowledgment of the appointment and a confirmation that the attorney has made the reasonable effort required under Article 26.04(j)(1) to contact the defendant by the end of the first working day after the date of appointment;

 

(17) within ten days days of receiving the notice of appointment personally interview any defendant incarcerated in the Brazos County Jail.  A court MAY REPLACE AN ATTORNEY if the appointed attorney does not interview an incarcerated defendant within this ten day period;

 

(18) must appear for arraignment and pretrial proceedings and may not waive arraignment for an incarcerated defendant unless the waiver is signed by the defendant;

 

(19) submit only a properly documented and accurate “Request for Motion for Court Appointed Attorney’s Fees / Approval; and

 

(20) with the exception of the appellate list, unless already approved for appointments in Brazos County, Texas, must live in Brazos County or contiguous counties.

 

(21)  no later than October 15, submit 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 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.

 

(b)     Specific Objective Qualifications to Receive Appointments

 

(1)     Misdemeanor Cases

 

(a)     Practiced in the area of criminal law for at least one (1) year or exhibited professionalism and reliability when providing representation to criminal defendants.

(2)     Other Felony List.

 

(a)     Meet the minimum qualifications for placement on the Misdemeanor List;

 

(b)     Practiced in the area of criminal law for at least two (2) years;

 

(c)     Have tried to verdict at least two (2) criminal jury trials as lead counsel.

 

(3)     3g/Enhanced Felony List

 

(a)     Meet the minimum qualifications for placement on the Misdemeanor List;

 

(b)     Practiced in the area of criminal law for at least three (3) years; and

 

(c)     Have tried to verdict at least ten (10) criminal jury trials as lead counsel, five of which must have been felony trials.

 

(4)     Capital Felony List

 

(a)     Meet the minimum qualifications for placement on the 3g/enhanced Felony List;

 

(b)     Comply with the requirements of Article 26.052 of the Texas Code of Criminal Procedure; and

 

(c)     Be admitted to the Second Administrative Judicial Region’s List of Court-Appointed Counsel for Capital Felony Cases.

 

(5)     Appellate Attorney List

           

(a)     Meet the minimum qualifications on the Other Felony List; and

 

(b)     Unless currently certified in criminal law by the Texas Board of Legal Specialization, have acted as counsel on appeal in at least 3 separate criminal appeals.

 

3.04      Application and Approval of Attorneys by the Judges

 

(a)     Application.  Any attorney desiring to be placed on any public appointment list shall complete an application under oath on a form approved by the district and county court at law judges (See Appendix for approved forms).  The application shall be delivered to the Brazos County Local Administrative District Judge.

 

(b)     Misdemeanor List. In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(1) above, an attorney may be placed on the misdemeanor appointment list only if both of the County Court at Law Judges approves the attorney’s placement on the misdemeanor list.

 

(c)     Other Felony List.  In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(2) above, an attorney may be placed on the felony appointment list only if a majority of the district judges approves the attorney’s placement on the Other Felony List.

 

(d)     3g/Enhanced Felony List. In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(3) above, an attorney may be placed on the felony appointment list only if all three of the district judges approve the attorney’s placement on the 3g/Enhanced Felony List.

 

(e)     Capital Felony List.  In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(4) above, an attorney may be placed on the Capital Felony List only if all three of the district judges approve the attorney’s placement on the Capital Felony List.

 

(f)      Appellate Attorney List.  In addition to meeting the objective minimum qualifications described in Rule 3.03(a) and (b)(5) above, an attorney may be placed on the Appellate Attorney List only if all three of the district judges and both of the county court at law judges approve the attorney’s placement on the Appellate Attorney List.

 

(g)     Action on Applications.  When an attorney’s application to be placed on a public appointment list is received by the Local Administrative District Judge, the Local Administrative District Judge shall prepare and route to the County Court at Law Judges and the District Judges an evaluation form (See Appendix for Form).  Each County Court at Law and District Judge shall evaluate the new applicants for each public appointment list and write his/her recommendation, approval, or disapproval on the evaluation form together with any comments, as appropriate, and forward the evaluation form to the next appropriate judge for consideration.  The last judge to act on the evaluation shall return the completed evaluation form to the Local Administrative District Judge who will determine whether the appropriate number of judges have approved the addition of the attorney to any list.  Each attorney wil be approved for addition to the appropriate list:

 

(1)     who meets the objective qualifications set forth in Rule 3.03 for placement on the list; and

 

(2)     whom the judges consider to be actually competent to adequately handle cases associated with the list.

 

An objective qualification requirement for any list may be waived by unanimous vote of the judges required for approval of an attorney for placement on any list.

 

(h)     Notification of Judge’s Action.  The Local Administrative District Judge shall notify each attorney by letter of the judges’ action on each application.  If the attorney’s application has been denied, the notification letter shall describe the reasons for the denial by reference to each qualification required by these rules which has not been met, and inform the attorney when another application may be considered. The Local Administrative District Judge shall transmit all retained documentation to the Associate Court 1 Judge.

 

(i)       Confidentiality.  The evaluations and communications between the courts and the attorneys relating to the applications to be placed on any appointed attorney list are records of the judiciary and not subject to public disclosure under the Texas Open Records Act.  However, any attorney desiring to review the completed evaluation form concerning the attorney’s application to be placed on any list may obtain a copy of the attorney’s evaluation by request to the Local Administrative District Judge.

 

(j)       Records Maintenance and Retention.  The Associate Court 1 Judge shall be responsible for and maintain each original application, completed evaluation, and records of MCLE compliance under these rules until a period of five (5) years after an attorney:

 

(1)     is denied addition to any appointed attorney list; or

 

(2)     is removed or otherwise no longer on any appointed attorney list.

 

3.05      Removal of Attorneys from Public Appointment List

 

(a)     An attorney may be removed, at any time, from one or more public appointment lists by a majority of the judges for the corresponding court level whenever the judges determine that the attorney:

 

(1)     no longer meets the objective qualifications for that list;

 

(2)     is not fully competent to adequately handle the category of cases associated with that list;

 

(3)     fails to annually certify completion of the required continuing legal education requirements;

 

(4)     repeatedly fails to comply with the time requirements imposed by the Texas Rules of Appellate Procedure, the Texas Code of Criminal Procedure, or any of this county’s local rules of administration;

 

(5)     submitted a claim for legal services not performed by the attorney;

 

(6)     has twice or more failed to contact or interview appointed defendants in a timely manner as required by Article 26.04(j)(1), Code of Criminal Procedure and this Plan;

 

(7)     has been found by a court to have provided ineffective assistance of counsel;

 

(8)     has been convicted or received deferred adjudication for any offense other than an offense punishable by a fine only;

 

(9)     is under indictment or being formally charged with an offense, other than an offense punishable by a fine only; or

 

(10) has been sanctioned by the State Bar of Texas or any other State.

 

(b)     The judges may, in their discretion, remove an attorney from one or more lists, while continuing to approve the attorney for other lists.

 

(c)     When a majority of the judges remove an attorney from any list, the Local Administrative District Judge shall inform the attorney in writing of the judges’ action and of the reasons for the removal.  Within 15 days following the date of the letter removing an attorney from any list, an attorney may then deliver to the Local Administrative District Judge a written request to appear before the judges en banc to appeal the decision.  A majority of the judges may reinstate the attorney.  If a majority of the judges do not vote in favor of reinstatement of the attorney, the original removal of the attorney from the list shall remain in effect.

 

(d)     Unless the notice of removal from an appointment list specifies a different duration of suspension or removal, any attorney removed from the list may reapply to be placed on that list after a period of one (1) year.

 

3.06      Assignment of Attorneys.  The following method shall be used to assign attorneys from the appropriate public appointment list to represent individual defendants:

 

(a)     Prompt Appearance Before a Magistrate. The law enforcement officer making the arrest and any officer who later has custody of an accused person shall ensure that the person is taken before any magistrate (Justice of the Peace) authorized by law without unnecessary delay, but not later than 48 hours after the person was arrested. The magistrate (Justice of the Peace)  before whom the arrested person is brought shall administer the required magistrate's warnings, set bail, if appropriate, and provide the person with an application for court appointed attorney and assistance in completing the application, if appointment of counsel is requested by the individual arrested.

 

(b)     Transmittal of Request for Appointed Counsel.  Any magistrate (Justice of the Peace) who administers magistrate’s warnings to an arrested individual shall make a written note on any request for appointment of counsel of the date and time the request was made.  Pursuant to §15.17, Texas Code of Criminal Procedure, the magistrate (Justice of the Peace) shall, as soon as possible, without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel, transmit or cause to be transmitted to the Brazos County Associate Court 1, as authorized under §26.04, Texas Code of Criminal Procedure, the forms requesting appointment of counsel for defendants charged with a Class A or B misdemeanor or any felony other than a capital felony.  If the arrested individual is charged with a capital felony, the request and any documentation shall be delivered within twenty-four (24) hours to the Local Administrative District Judge, who shall determine indigency and appoint counsel within three (3) working days after the request is received.

 

(c)     Brazos County Associate Court 1 Judge to Determine Indigency and Appoint Counsel for Incarcerated Individuals. If the individual requesting appointment of counsel remains incarcerated on the charges, the Associate Court 1 Judge, shall, within three (3) working days after the request for appointment of counsel is received by the Associate Judge, determine whether or not the requesting arrested individual is indigent and, if found to be indigent, shall appoint an attorney from the appropriate list. In determining which attorney to appoint, the Associate Court 1 Judge shall appoint the attorney whose name next appears in order on the public appointment list that corresponds to the most serious offense as currently charged, unless any of the following circumstances exist, which override the sequential appointment preference:

 

(1)     if the defendant requesting appointed counsel does not understand English, an attorney who can communicate with the defendant in the defendant’s language is preferable to one who cannot;

 

(2)     if the defendant requesting appointed counsel has pending charges in which he has previously been appointed counsel, the attorney who was previously appointed should be appointed;

 

(3)     if the defendant requesting appointed counsel has been arrested on both felony and misdemeanor charges, or has pending felony charges at the time of a misdemeanor arrest, an attorney from the appropriate Felony List should be appointed; or

 

(4)     if the defendant requesting appointed counsel has been arrested on any motion to proceed with adjudication or motion to revoke community supervision, and the attorney who represented the defendant at the time the defendant was placed on supervision continues to be on the appropriate public appointment list, the attorney who represented the defendant previously should be appointed.

 

(d)     Limitation on Appointment after Overriding Circumstance.  When any attorney is appointed out of order due to an overriding circumstance, that attorney shall not receive another sequential appointment until every other attorney on that list has received an appointment in that rotation (but may receive additional overriding circumstance appointments). 

 

(e)     Ad Hoc Distribution of Appointments in the Trial Court.  The Court may deviate from the rotation system and appoint an attorney in that court who is specifically qualified under the Plan on an ad hoc basis to represent indigent defendants upon a finding of good cause to deviate from the rotation system.

 

(f)      Determination of Indigency and Appointment Counsel for Individuals Not Incarcerated. If the individual requesting appointment of counsel has been released from custody and charges have been filed, the Associate Court 1 Judge shall review the application and determine indigency of the defendant.  If the defendant requesting appointment of counsel was initially denied an attorney, that defendant may contact the Associate Court 1 in person or by telephone, between 9 a.m. and 11:30 a.m. and 2 p.m. and 4 p.m., Monday through Thursday, or may call for an appointment to complete a new application which will be considered and ruled on immediately. The misdemeanor request and any related documentation shall be maintained by the Associate Court 1 Judge and delivered to the assigned court upon the filing of a charging instrument by either the District Attorney or the County Attorney.  The Associate Court 1 Judge shall deliver all felony requests and any related documentation to the Associate Court 2 Judge, who shall maintain and deliver to the assigned court upon the filing of a charging instrument by either the District Attorney or the County Attorney. Upon filing of any request for appointment of counsel, the District Clerk shall deliver the request to the assigned court.

 

(g)     TDCJ Inmates Charged with Offenses Committed While in TDCJ Custody.  Notwithstanding anything herein to the contrary, if the court determines that a defendant before the court is indigent and is an inmate charged with an offense committed while in the custody of the Institutional Division of the Texas Department of Criminal Justice, the court may request the Office of the State Counsel for Offenders to provide legal representation to that defendant in accordance with Tex. Code Crim. Proc. Art. 26.051 and the policies and procedures established by the Texas Board of Criminal Justice.

 

3.07      Notice of Determination that the Defendant is Not Indigent.   If the person making the indigency findings, determines that a person who requests appointment of counsel is not indigent, that finding shall be entered on the request for appointment of counsel and file the original with the other orders in the case and cause a copy to be returned to the requesting person.

 

3.08      Notice of Determination that the Defendant is Indigent and Appointment of Counsel.   If the person making the appointment finds that a defendant who requests counsel is indigent, an order appointing counsel shall be completed and a copy delivered to the appointed counsel, to the indigent defendant, to the prosecutor with jurisdiction over the charge, and the original delivered to the assigned court to be filed with the orders in the case.  Immediately after an order appointing counsel is signed, the appointing judge shall notify the appointed attorney of the appointment by at least one of the following methods: telephone, facsimile transmission, electronic mail, in person, or other means of immediate communication.

 

3.09      Attorney Acceptance of Appointment and Contact with the Defendant.  The appointed attorney is required to provide the court, within 72 hours of receiving the notice of appointment, an acknowledgment of the appointment and a confirmation that the attorney has made the reasonable effort required under Article 26.04(j)(1) to contact the defendant by the end of the first working day after the date of the appointment.

 

(a)     The appointed attorney shall deliver an acknowledgment and confirmation in written form to the appointing judge or person designated by the judges to appoint counsel.

 

(b)     The acknowledgment and confirmation shall be delivered by hand, by facsimile, by electronic mail, or by such other means as the judges may approve.

 

3.10      Reporting Requirements

 

(a)     Reporting Period. In determining compliance with the minimum continuing legal education requirements of these rules, the period used shall be the same as the MCLE compliance year used by the State Bar of Texas [See State Bar Rules, Art. XII, Sec. 2(L)].

 

(b)     CLE Reporting Requirement.   Not later than the last day of an attorney’s birth month each year, an attorney on any appointment list must submit to the Brazos County Associate Judge 1:

 

(1)     An affidavit signed by the attorney detailing the criminal continuing legal education activities completed in the prior year, with a copy of the State Bar of Texas Minimum Continuing Legal Education Annual Verification Report covering the reporting period (see Appendix for form);

 

(2)     An affidavit signed by the attorney, that the attorney is currently certified in criminal law by the Texas Board of Legal Specialization (See Appendix for form).

 

(c)     Carryover Limited to One Year. Continuing legal education activity completed during any reporting period in excess of the minimum six hour requirement for such period may be applied to the following period’s requirement.  The carryover provision applies to one (1) year only.        

 

(d)     Initial Reporting Period.  Continuing legal education activity completed within a two-year period immediately preceding an attorney’s initial reporting period may be used to meet the educational requirements for the initial year.

 

(e)     Failure to Timely File Compliance Affidavit.   Failure to timely file proof of compliance with the reporting requirements of Section 3.10 (a) and (b) will result in automatic suspension from the public appointment list(s) until proper documentation is provided.

 

(f)      Reporting Practice Information.   Each year, no later than October 15, an attorney shall submit 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 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.

 

Normal 0 false false false EN-US X-NONE X-NONE
Fee and Expense Payment Process
4/4/2014

Rule 4. Attorney Fee Schedule and Compensation of Appointed Attorneys

4.01      Trial Fee Schedule.  Brazos County will pay appointed counsel for all trial time reasonably necessary for adequate representation of the defendant, as approved by a judge, according to the following fee schedule adopted as provided under Article 26.05(b) of the Texas Code of Criminal Procedure:

4.02      Compensation for Services Not Provided by Schedule.

 

(a)     Multiple Cases for Single Defendant.   In determining the amount of compensation for disposition of multiple cases involving a single defendant, the court may award an amount greater than the established fixed fee.

 

(b)     Other Services.  Services not specifically described above (e.g., bond reductions, pre-filing dismissals, defense of motions to deny bail or revoke bond, dismissals, habeas corpus, etc.) will be paid on a rate basis using a daily or hourly rate most appropriate to the circumstances. Any request for compensation on a rate basis must be accompanied by an itemized statement showing the amount of time actually expended by the attorney on the case.

 

4.03      Appellate Fee Schedule.  Brazos County will pay appointed counsel for appellate services only on a fixed fee basis, unless otherwise approved by a judge for good cause, according to the following fee schedule adopted as provided under Article 26.05(b) of the Texas Code of Criminal Procedure:

 


4.04      Incidental Expenses.  Appointed counsel, both trial and appellate, shall be reimbursed for reasonable and necessary incidental expenses such as copying, telephone, mileage, etc., incurred without prior approval of the Court.

 

4.05      Investigations and Expert Testimony.  Counsel appointed in a non-capital case shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.  Expenses incurred with and without prior court approval shall be reimbursed, according to the procedures set forth below.  When possible, prior court approval should be obtained before incurring expenses for investigation and for mental health and other experts.

 

(a)     Procedure with Prior Court Approval.  Appointed counsel may file with the trial court a Motion for Court Appointed Attorneys Fee/Approval (Appendix E) together with a pretrial ex parte confidential request for advance payment of investigative and expert expenses.  The request for advance payment of expenses must state, as applicable:

 

(1)     the type of investigation to be conducted or the type of expert to be retained;

 

(2)     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

 

(3)     an itemized list of anticipated expenses for each investigation or each expert.

 

(b)      Procedure Without Prior Court Approval.  Appointed counsel may incur investigative or expert expenses without prior approval of the court. Appointed counsel may file with the trial court a Motion for Court Appointed Attorneys Fee/Approval (Appendix E).  The motion must have an itemized statement attached which states, as applicable:

 

(1)     the type of investigation that was conducted or the type of expert that was retained;

 

(2)     specific facts that show the investigation was necessary to assist in preparation of the defense; and

 

(3)     an itemized list of actual expenses incurred for each investigation or each expert.

 

(c)     Approval of Requests.  On presentation of a Motion for Court Appointed Attorneys Fees/Approval (Appendix E) and the request for advance payment or itemized statement required, the court shall approve the payment of the requested amount if the expenses are reasonably necessary and reasonably incurred.  Upon approval by the Court, the completed Motion for Court-Appointed Attorneys Fees/Approval shall remain a public record and be transmitted to the County Auditor for payment.   If the request for advance payment or claim for reimbursement is made prior to the conclusion of the trial of the case, the request for claim, together with any supporting documentation, that was attached to the motion may be ordered sealed until the trial of the case is concluded.  All payments shall be made directly to the requesting counsel.  No payments will be made directly to the investigator or expert.

 

(d)     Denial of Requests.  If the court denies in whole or in part a request for advance payment or a claim for reimbursement of expenses incurred for investigation or expert testimony, the court shall:

 

(1)     state the reasons for the denial in writing;

 

(2)     attach the denial to the request or claim;

 

(3)     submit the request or claim and denial as an exhibit to the record; and

 

(4)     if the request or claim has been made ex parte prior to trial, may order the request or claim and denial sealed until the trial of the case is concluded.

 

4.06      Procedure for Compensation.  Not later than thirty (30) days after the case is disposed by the trial court, the appointed attorney shall prepare and submit to the trial court last having jurisdiction of the most serious offense case, a Motion for Court Appointed Attorney Fees on a form approved by the judges  (See Appendix for approved forms).  The motion shall include all services provided a single defendant, regardless of the number of cases disposed.  The judge shall determine the reasonableness of the amount requested based upon the time and labor required, the complexity of the case, and the experience and ability of the appointed counsel using the above fee schedules.  If the judge disapproves the requested amount, 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.  The attorney may file written objections to the court’s action and request an oral hearing to show the court reasons that justify the amount requested.

 

4.07      Appeals from any Disapproval of Requested Amount.  The attorney may appeal any determination disapproving the requested amount to the Presiding Judge of the Second Administrative Judicial Region in accordance with the rules promulgated by the Second Administrative Judicial Region.  The amount determined by the Presiding Judge of the Second Administrative Judicial Region shall be paid by Brazos County to the attorney appointed within forty-five (45) days after the appeal is determined.

Normal 0 false false false EN-US X-NONE X-NONE
 
Plan Documents
Brazos District and County Court Affidavit of Indigence.doc (11/2/2015 10:56:37 AM) view
Brazos District and County Court Appendix A -- Application to be Placed on Public Appointment List.doc (7/5/2010 1:47:09 PM) view
Brazos District and County Court Appendix B -- Warning by Magistrate.doc (7/5/2010 1:47:53 PM) view
Brazos District and County Court Appendix C -- Application for Court Appointed Attorney.doc (7/5/2010 1:49:01 PM) view
Brazos District and County Court Appendix D -- Order Appointing Attorney.doc (7/5/2010 1:39:03 PM) view
Brazos District and County Court Appendix E -- Motion for Appointed Attorney's Fees-Approval.doc (7/5/2010 1:51:53 PM) view
Brazos District and County Court Appendix F -- MCLE Compliance Affidavit (Criminal Law).doc (7/5/2010 1:40:07 PM) view
Brazos District and County Court Appendix H -- Judge's Evaluation Form.doc (7/5/2010 1:53:01 PM) view
Brazos District and County Court Attorney Application for Appointment.doc (4/4/2014 10:38:21 AM) view
Brazos District and County Court Attorney Fee Schedule.docx (4/4/2014 10:51:22 AM) view
Brazos District and County Court Attorney Fee Voucher.doc (4/4/2014 11:09:38 AM) view
Brazos District and County Court AVISO DEL MAGISTRADO.docx (4/4/2014 11:03:01 AM) view
Brazos District and County Court CASE MANAGEMENT FORM.doc (4/4/2014 11:05:50 AM) view
Brazos District and County Court Magistrate Warnings in Spanish.docx (11/2/2015 10:59:05 AM) view
Brazos District and County Court MAGISTRATE'S REPORT.docx (4/4/2014 11:08:29 AM) view
Brazos District and County Court Magistrate’s Warning Form.docx (11/2/2015 10:56:14 AM) view
Brazos District and County Court MCLE COMPLIANCE AFFIDAVIT - CRIMINAL .doc (4/4/2014 11:00:50 AM) view
Brazos District and County Court MCLE COMPLIANCE AFFIDAVIT - JUVENILE.doc (4/4/2014 11:01:49 AM) view
Brazos District and County Court ORDER APPOINTING ATTORNEY.docx (4/4/2014 10:59:08 AM) view