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Determination of Indigence

 

The parent or legal guardian of a juvenile respondent accused of engaging in delinquent conduct or conduct in need of supervision shall presumed to be indigent, i.e. “a person who is not financially able to employ counsel,” Tex. Code of Crim. Proc. Art. 1.051(b), if any of the following conditions or factors are present:

 

(1)    The parent/legal guardian or his/her dependent(s) have been determined to be eligible to receive public assistance, including but not limited to, food stamps, Medicaid, Temporary Assistance to Needy Families (TANF), Supplemental Security Income, public or subsidized housing, or civil legal services.

(2)   The household income of the parent/legal guardian and any dependents is at or below 150% of the poverty guidelines published annually by the United States Department of Commerce.

(3)   The parent/legal guardian is currently serving a sentence in a correctional institution or facility, is currently 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, or

(4)   The parent/legal guardian previously has been determined to be indigent and entitled to court-appointed counsel in a currently pending or related court proceeding.

 

When none of these presumptions applies, a juvenile respondent shall nevertheless be eligible for assignment of counsel if the parent/legal guardian is unable to employ private counsel without substantial financial hardship to the parent/legal guardian’s household or to the parent/legal guardian’s dependents.  In determining financial eligibility for appointed counsel under this provision, the appointing authority shall consider the parent/legal guardian’s income, assets, and liabilities, as set forth in Article 26.05(m) of the Texas Code of Criminal Procedure; the seriousness and complexity of each charged offense; the anticipated costs of representation for the offense(s) charged; the social and economic conditions of the parent/legal guardian and any dependents; and any other extenuating circumstances affecting the ability of the parent/legal guardian to retain private counsel for the juvenile respondent.

 

APPOINTMENT OF QUALIFIED COUNSEL

 

Attorney’s Certification and Request to Represent Juvenile Respondents

 

Persons approved for the juvenile list will be eligible to represent juveniles accused of the following levels of conduct;  (1) conduct indicating a need for supervision or delinquent conduct (no TYC possible),   (2) Delinquent conduct (TYC possible); and (3) determinate sentence or discretionary transfer to criminal court proceedings have been initiated.  All attorneys who maintain an office for the private practice of law within Fisher, Mitchell and Nolan Counties of Texas, together with all attorneys who maintain an office outside those counties and desire to be qualified for court-appointments, shall complete and file with the designated administrator for the Juvenile Board an Attorney’s Certification and Request to Represent Indigent Defendants, (hereinafter sometimes referred to as “Attorney’s Certification”).  The Attorney’s Certification, designated for both adult and juvenile matters, provides counsel the ability to choose the counties and types of cases for which counsel wishes to be appointed. 

 

The Indigent Defense Plan Administrator for the Fisher, Mitchell & Nolan County Juvenile Board is:

 

Judge Whitley May 

Nolan County 

100 East Third, Ste 105

Sweetwater, Texas 79556

 

A true and correct copy of the Attorney’s Certification is attached hereto as Model Form A.

 

Qualification of Counsel

 

To initially qualify to represent juvenile respondents within Fisher, Mitchell and Nolan Counties, counsel must:

(1)   Be licensed by the Supreme Court of the State of Texas;

(2)   Be in good standing with the State Bar of Texas

(3)   Have fully completed, signed and filed an Attorney’s Certification

(4)   Have engaged in the practice of law for a minimum of one year, or otherwise be supervised by, or in association with, an attorney who has been in private practice for a minimum of at least one year as of the date the Attorney’s Certification is filed with the Plan Administrator

(5)   Comply with the educational standards promulgated by the Task Force on Indigent Defense, to wit: as of the date of filing of the Attorney’s Certification have completed no less than six (6) hours of juvenile law continuing legal education in the preceding twelve (12) month period;

(6)   Maintain no less than six (6) hours continuing legal education in juvenile law each year thereafter;

(7)   Initiate contact, whether in person, by mail or telephone, with the juvenile respondent within twenty-four (24) hours of receiving notice of an appointment;

(8)   Send a writing to the appointing Court verifying the initial contact was initiated by counsel within the time provided in “7” above;

(9)   Interview the juvenile respondent, in person or by phone, as soon as practicable after receiving notice of the appointment, understanding that an interview within ten (10) days of receipt of the appointment will be deemed presumptively reasonable; and

(10) Timely attend all pretrials and hearings, unless otherwise granted a “pass” or “continuance” in advance by the appropriate Court.

 

 Annual Attorney Reporting

 

Attorneys appointed under this plan to represent indigent juvenile defendants must electronically submit by October 15 of each year the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in Fisher, Mitchell and Nolan counties for juvenile delinquency cases for the prior 12 months that begins on October 1 and ends on September 30. 

   

 

THE INDIGENT APPLICATION PROCESS

 

Application for Determination of Indigence

 

The juvenile law courts of Fisher, Mitchell and Nolan Counties shall provide the Fisher, Mitchell and Nolan County Juvenile Probation Department, together with their respective County Clerks, copies of the Application for Court-Appointed Attorney (hereinafter referred to as “Application”) to be timely provided, upon request, to the parent or legal guardian of any juvenile respondent who stands charged with an offense allegedly committed within the State of Texas for which the juvenile respondent, if convicted, could be adjudicated to have engaged in delinquent conduct or to be a child in need of supervision, as those terms are defined within the Texas Family Code.

 

A true and correct copy of the Application is attached hereto as Model Form C.

 

 

 

Request for Application for Court Appointed Attorney

 

Upon request by the parent and/or legal guardian of a juvenile respondent, the Juvenile Department or the Clerk of the Juvenile Court, or their respective officers and/or deputies, shall provide a copy of the Application to the requesting party as soon as practicable upon request, but in no event more than four (4) hours following such request.  At the time the Application is provided, the officer and/or deputy providing the Application shall document on the front of the transmittal page; (a) the date and time of the request and (b) the date and time the Application was provided.  The Juvenile Department personnel, the County Clerk or their respective deputies shall provide such reasonable assistance as may be necessary to the juvenile respondent’s parent/legal guardian in completing the Application. 

 

Upon return of the completed Application, the officer or deputy shall document on the face of the transmittal page; (a) the date and time the Application was returned and (b) the date and time the Application was transmitted/delivered to the appropriate Court for consideration. 

 

A true and correct copy of the Transmittal Page is attached hereto as Model Form D.

 

Appointment of Counsel for Purposes of Detention Hearings Only

 

Prior to the commencement of the first detention hearing, unless the court finds that the appointment of counsel is not feasible due to exigent circumstances, the court shall appoint counsel within a reasonable time to represent the child at that hearing.

 

If parent, guardian or a court-appointed guardian ad litem for the child is present for the detention hearing;  The Texas Family Code §54.01, provides that so long as a parent, guardian or guardian ad litem is present for the detention hearing, counsel need not be appointed for the detention hearing.  However, if the juvenile is not represented by an attorney at the initial detention hearing and the court orders the juvenile to be detained, then the Court shall immediately appoint an attorney to represent the child, if the juvenile respondent’s parent(s) or legal guardian(s) are unable to employ counsel.  Counsel shall be appointed according to the rotation appointment procedures provided herein.

 

If parent or guardian ad litem is not present for the hearing.  If no parent or guardian is present, the Court shall appoint counsel or a guardian ad litem for the child before the detention hearing may be heard by the Court.

 

If counsel is to be appointed for the detention hearing.  Due to the expedited nature of a detention hearing, prior to the Court’s appointment of counsel, the Court shall consult the rotation appointment list and contact each attorney in sequence to ensure that counsel will be available on the date and at the time scheduled for the detention hearing.  If Counsel is unavailable for hearing at the date and time scheduled, the Court shall deem good cause to depart from the rotation and select the next attorney available by rotation for the date and time of the scheduled hearing.

 

Safeguard for Appointment of Counsel if Parent/Legal Guardian

Fails to Retain Counsel or Make Application for Court-Appointed Counsel

 

If a petition alleging delinquent conduct or conduct in need of supervision has been filed, the parent/legal guardian of the child has not retained counsel, and the parent/legal guardian of the child has failed and/or refused to complete an Application seeking appointment of counsel for the juvenile respondent within a reasonable time after being advised by the Juvenile Department to make Application, then the Juvenile Department shall forward an Application to the Court with jurisdiction of the juvenile, indicating the parent/legal guardian’s failure to request.

 

Upon receipt of the  Application, the Court shall immediately enter an order appointing counsel to represent the juvenile respondent and thereafter order the parent/legal guardian to appear and complete an Application.

If the application is not received within five working days of service of the petition upon the juvenile, the Court will immediately appoint an attorney.

Transmittal Requirements for Completed Application

 

Upon receipt of a completed Application from the parent/legal guardian of the juvenile respondent, the Juvenile Department, Clerk of the Court or their designated officers or deputies, shall verify that the Application has been property completed and executed, thereafter completing the front of the transmittal page, designating:

 

(1)   The date and time the completed Application was returned by the parent/legal guardian to the Juvenile Department/Clerk’s Office.

(2)   The name of the individual to whom the Application was returned;

(3)   The charges pending against the juvenile respondent; and

(4)   The date and time the Application was forwarded to the Court with jurisdiction over the child.

 

The completed Application must be transmitted and/or delivered to the appropriate Court within twenty-four (24) hours of the receipt by the Juvenile Department, Clerk of the Court, or their designated officers or deputies.  Should the completed Application be received over a weekend or official Court holiday, the completed Application shall be transmitted and/or delivered to the Court on the first business day immediately thereafter.  Delivery of the completed Application to the Court may be by hand delivery to the Court’s chambers, by fax, or, in the event charges are pending outside of the county in which the Application is returned, by first class mail to the attention of the appropriate Court.  The Court shall designate on the front transmittal page the date and time the Application was received by the Court.

 

From the date the Application is received by the Court, the Court has three (3) business days with which to review the Application, make its determination of indigence and thereafter grant or deny the request.

Creation of Court’s Appointment List(s)

 

Each Court with juvenile law jurisdiction shall appoint counsel from an appointment list using a system of rotation.  The list shall be comprised of those qualified attorneys who properly request to be considered for appointment and who meet or exceed the objective qualifications set forth above.  The procedures must be consistent with Art. 1.051, 15.17, 26.05 and 26.052 of the Texas Code of Criminal Procedure.

 

Recognizing that every counsel residing within the 32^nd Judicial District is required to submit an Attorney’s Certification under the provisions of the 32^nd Judicial District Indigent Defense Plan, a space will be provided within that certification for counsel to designate whether or not counsel desires to undertake the representation of juvenile respondents whose parents and/or legal guardians qualify as indigent.

 

Each Court shall appoint attorneys from among the next five names on its appointment list(s) in the order in which the attorney’s names appear on that list, unless the Court makes a finding of good cause, in writing reflected on the record for appointment of any attorney out of order.  An attorney who is not appointed in the order in which the attorney’s name appears on the list shall remain next in order on the list.

 

If the Court finds it necessary to deviate from the rotation, deviation is presumed to be for “good cause” if the appointment was made to:

 

(1)   Appoint the same counsel as appointed in another pending case involving the same juvenile respondent;

(2)   Appoint the same counsel in a probation revocation or modification matter that represented the juvenile respondent at the time of the initial adjudication or prior proceeding in the underlying case;

(3)   Provide a non-English speaking juvenile respondent with counsel who is capable of communicating in a language understood by the juvenile respondent; or

(4)   Provide immediate representation under exigent circumstances.

 

Removal from Court’s Appointment List

 

An attorney who otherwise qualifies for appointment may voluntarily request removal from any or all of the Courts’ rotating appointment lists at any time.  If such voluntary removal is requested, the attorney shall remain responsible for all cases for which the attorney was appointed prior to the request, unless otherwise released by order of the Court.

 

An attorney may be involuntarily removed from a Court’s appointment list if the attorney:

 

(1)    Has twice or more failed to contact or interview clients in a timely manner required by Article 26.04(j)(1), Code of Criminal Procedure;

(2)   Has submitted a claim for services not performed as specified in Article 26.05(e), Code of Criminal Procedure;

(3)   Fails to maintain compliance with each of the appointment list guidelines;

(4)   Has been found by a court to have provided ineffective assistance of counsel;

(5)   Has violated a rule of professional responsibility;

(6)   Has been convicted of or received a deferred adjudication for any offense, other than an offense punishable by a fine only;

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

(8)   Has intentionally misrepresented statements on the application for the appointment list.

 

An attorney may also be removed from the appointment list for another stated good cause.

 

Referral.  If a judge believes that an attorney has violated any of the provisions listed in the paragraph above, the judge may refer an attorney to the Fisher, Mitchell and Nolan County Juvenile Board for removal from the appointment list.  The referral must be in writing and shall clearly state the grounds that form the basis of the referral.  No disciplinary action with respect to the attorney being retained or removed from the appointment list may be made without such a referral.  A copy of the “Judge’s Referral to the Juvenile Board Regarding Appointed Counsel is attached as Model Form B.

 

Notification/Hearing.  Upon receiving an attorney referral, the Juvenile Board shall notify the attorney in writing of the referral and inform the attorney of the grounds that form the basis of the referral.  The notice shall also inform the attorney of the time and place the Juvenile Board will meet to discuss the referral and give the attorney an opportunity to respond to the referral in writing. 

 

Action.  After the Juvenile Board meets, the Juvenile Board shall determine whether the attorney should:

 

(1)   Remain on the appointment list at the same level;

(2)   Be restricted to appointments for indigent defendants charged with less serious offenses;

(3)   Be removed from the appointment list altogether, and/or

(4)   Be provisionally suspended pending the completion of additional continuing legal education.

 

The attorney may be sanctioned as provided above by a majority vote of the Juvenile Board present, provided the quorum requirement is satisfied.  The Juvenile Board may also require the attorney to take other rehabilitative measures as a condition of probation or reapplication.  An order of removal should state in the order the earliest date at which the attorney may apply for reinstatement.  An attorney who was removed from an appointment list under “Grounds for Removal” numbers 4, 5, 6 or 7, shall be immediately reinstated upon providing proof that the charges were dismissed, unsubstantiated by a grievance panel or that the attorney was acquitted, unless other grounds for removal exist against the attorney that would prohibit reinstatement.

 

The decision of the Juvenile Board is final and may not be appealed.

COMPENSATION AND REIMBURSEMENT OF EXPENSES

 

Compensation for the time expended in the representation of juvenile respondents shall be as follows:

 

Probation/Indeterminate Sentencing Cases

 

The base compensation for attorney’s time, attorney’s staff time and expenses per case shall be as follows:

 

(1)    Dismissal

a.     Pre-petition             $100.00

b.    Post-petition           $200.00

(2)   Pretrial Diversion                 $250.00

(3)   Plea/Placement                   $400.00

 

Compensation for attorney and staff time incurred in excess of the base compensation shall be compensated as follows:

 

(1)   Attorney compensation shall be at the rate of not less than seventy-five dollars ($75.00) per hour for actual time expended by counsel, and

(2)   Staff time shall be compensated at the rate of not less than twenty-five dollars ($25.00) per hour for actual time expended by counsel’s staff.

 

Expenses shall be reimbursed as provided below.

 

Determinate Sentencing Cases

 

As all determinate sentencing cases would otherwise be heard in the District Court, compensation will be handled in the same manner and at the same rates as published in the 32^nd Judicial District Indigent Defense Plan (6^th Amended).

 

Reimbursement for Expenses

 

Collect Telephone Calls:  Reasonable expenses incurred for accepting collect telephone calls originating from a detention facility, shall be reimbursed without prior Court approval.  Accepting more than one (1) call per day, per juvenile respondent shall be presumed unreasonable, however, counsel may request payment and provide an explanation to overcome the presumption.

 

Mileage and Travel Time:  The Court shall not reimburse counsel for mileage or travel time incurred by counsel in traveling to and from counsel’s office to any location in the District for the purposes of representing a juvenile respondent.  Through the Attorney’s Certification, counsel has been afforded the opportunity to accept or reject appointments from any Court within the District.  Counsel has, by requesting to be included on a specific Court’s appointment list, agreed to represent the juvenile respondent in the county in which the case is pending.

 

The Courts recognize that due to the unavailability of juvenile detention space within the District, it may become necessary to transfer and detain a juvenile respondent in a detention facility outside the Judicial District.  If counsel needs to consult with the juvenile respondent in person, prior to incurring travel expenses, counsel shall contact the Fisher, Mitchell and Nolan Counties Juvenile Chief and request that the juvenile respondent be returned to the county where the charges are pending to consult with counsel as soon as practicable.  If, and only if, the Juvenile Department is unable to return the juvenile respondent to the county timely, the Court shall reimburse counsel for travel time only, not mileage, incurred.

 

Expenses Without Prior Court Approval:   Counsel may include within the final request for payment, a bill for reimbursement of expenses incurred.  Reimbursement expenses for which no prior court approval was granted will be subject to review by the Court for reasonableness.  Court ordered reimbursement, if any, will be in addition to the total compensation referred to as attorney compensation above.  Counsel will be responsible for payment of expenses incurred without prior court approval, and must thereafter submit a request for reimbursement.

 

Expenses With Prior Court Approval:  Reimbursement for expenses for which prior Court approval was granted may, with proper documentation, (1) be paid directly to the service provider by the Court, (2) as interim reimbursement to counsel or (3) as part of the final compensation order.  Motion and hearing to obtain prior court approval may be held in open court or ex parte, as justice would require.  Court ordered reimbursement, if any, will be in addition to the local compensation referred to as attorney compensation.

 

Attorney’s Fees and Expense Affidavit

 

The Court shall not enter an order for compensation or reimbursement of expenses unless a proper, detailed billing statement, time sheet or motion for payment in writing, signed by counsel, is presented for the Court’s consideration.  Two separate orders of compensation have been adopted by the Courts, which are more specifically described as follows:

 

(1)    Base Compensation Order:

a.     The order for base compensation is incorporated at the bottom of the Court-Appointed Counsel’s Request for Minimum/Base Compensation to be entered only if counsel has completed and signed the request and submitted it to the Court as part of the plea papers in the case. 

 

A true and correct copy of the Court-Appointed Counsel’s Request for Minimum/Base Compensation is attached as Model Form G.

 

b.    For the purposes of this plan, “Base Compensation” is an amount intended to be a presumptive minimum amount to which court-appointed counsel will be entitled for the legal services provided.  In the event counsel has expended time and incurred expenses in excess of the base compensation schedule, Counsel may submit an itemized statement of time and expenses to the Court for payment as set forth in (2) below.

c.     Each Court will encourage their respective prosecutor’s office to incorporate this form as part of the standard plea paperwork provided to counsel on the date of hearing with all other documents prepared by the prosecutor’s office.

 

(2)   Payment Request Which Exceeds the Base Compensation:

a.     Each attorney seeking compensation in excess of the base schedule shall prepare and file with the Court a statement detailing the attorney’s time, the support staff time and any expenses incurred in the representation of the juvenile respondent, signed by counsel.  For reporting purposes, the attorney’s time shall specifically differentiate between “in court” and “out-of-court” time incurred.  It is not required that the statement be in the form of a formal “Motion for Payment”  A time sheet or other writing, signed by counsel, which provides the required information will be deemed sufficient.

 

(3)    Request for Compensation Approved:  If the trial court approves a request as presented, the Judge shall enter an Order of Compensation designating that the attorney’s fees requested should be paid in full.

 

(4)    Request for Compensation Disapproved.  If the trial court disapproves the request for compensation as presented, the Judge shall enter an Order of Compensation In the amount approved by the Court, and thereon make written findings stating the reasons for approving an amount different from the amount requested. If the Court has not paid counsel the full amount requested, the Court shall tender a copy of the Order of Compensation to the attorney of record in the case, for his/her review.

 

(5)   Interim Requests for Compensation.  The Task Force on Indigent Defense discourages the payment of interim expenses for compensation, as it inherently distorts the compensation-per-case ratios which they monitor.  Therefore, absent a protracted period of representation, Interim Requests for Compensation will not be granted.

 

A true and correct copy of the Order of Compensation is attached hereto as Model Form H.

 

 

Motion/Request for Reconsideration of Compensation Order

 

If Counsel does not believe that the Compensation Order entered for payment for the attorney’s time, staff time and reimbursement for expenses incurred was consistent with the guidelines for compensation set forth herein, the attorney of record may file a motion/request for reconsideration of the Request for Compensation with the trial Court, providing such other documentation, together with any verified affidavit by Counsel, to supplement the original Request for Payment.

 

The Court shall review any additional documentation provided and render a written order to the motion/request within five (5) business days from the date the it was received by the Court.  A failure by the Court to review and render a written order within the five (5) business days as provided herein, shall be deemed a denial of the motion/request for reconsideration. 

 

Appeal of Compensation Order

 

If the request for reconsideration is rendered or deemed denied, Counsel may file an appeal with the Presiding Judge of this Administrative Region, following the procedures outlined in the Rules for the Appeal of a Trial Court’s Disapproval of Requested Court-Appointed Attorney’s Fee for the Seventh Administrative Judicial Region of Texas.

 

A true and correct copy of the Rules is a five page document which is attached hereto as Model Form I.

 

As of the date of the approval of this plan, the mailing address of the Presiding Judge of the Seventh Administrative Region is as follows:

 

Honorable Judge Dean Rucker

Seventh Administrative Region

200 West Wall, Suite 200

Midland, Texas 79701

 

Administrative Judge’s Determination Final: The Presiding Administrative Judge shall review the disapproval and determine the appropriate amount of payment. The decision of the Regional Presiding Administrative Judge is final. The Presiding Judge may conduct a hearing. The Commissioners' Court shall pay to the appointed counsel the amount that is approved by the Presiding Judge, if any, not later than the 45^th day after the date an order of compensation is entered by the Administrative Judge.

Fisher Mitchell Nolan Juvenile Board 6th Amended Indigent Defense Plan.docx (4/16/2010 3:08:08 PM) view
Fisher Mitchell Nolan Juvenile Board Affidavit of Indigence.doc (4/16/2010 2:56:01 PM) view
Fisher Mitchell Nolan Juvenile Board Attorney Fee Schedule.docx (11/30/2010 5:42:51 PM) view
Fisher Mitchell Nolan Juvenile Board Attorney Fee Voucher.doc (11/24/2010 10:53:47 AM) view
Fisher Mitchell Nolan Juvenile Board Revised Form documents.doc (11/24/2010 10:56:00 AM) view