Cass District Court and County Court Plan
- Arresting Officer Responsibilities
i. The arresting officer, or the person having custody of the arrestee, shall ensure that every arrestee shall be brought before a magistrate without unnecessary delay, but not later than 48 hours after the person is arrested.
ii. Unless arrested pursuant to an arrest warrant, bench warrant, capias, or other order of a magistrate or judge, necessary forms establishing probable cause must be completed and filed at the time an arrestee is booked into jail for any felony or misdemeanor punishable by incarceration.
iii. Release of defendants arrested without warrant
- A person arrested for a misdemeanor without a warrant and who is detained in jail must be released not later than the 24th hour after arrest, on a bond in an amount not to exceed $5,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense.
- A person arrested for a felony without a warrant and who is detained in jail must be released not later than the 48th hour after arrest, on a bond in an amount not to exceed $10,000, if a magistrate has not determined that probable cause exists to believe that the person committed the offense.
- If requested by the state, a magistrate may postpone the release of the defendant for not more than 72 hours after the defendant's arrest if a probable cause determination has not been made, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.
B. Magistrate Duties
i. At the Magistrate’s hearing, the magistrate should determine if accused can speak and understand English, or if the defendant is deaf.
ii. After making such determination, the magistrate shall, in an appropriate manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31, do the following:
- Advise the accused of the accusation against him/her and any affidavit filed therewith;
2. Admonish the accused of:
- The right to retain counsel;
b. The right to remain silent;
c. The right to have an attorney present during any interview with peace officers or attorneys representing the state;
d. The right to terminate an interview at any time;
e. The right not to make a statement and that any statement made by the accused may be used against him/her; and
f. The right to an examining trial.
3. Inform the accused of the right to appointed counsel if the person cannot afford counsel and the procedures for requesting appointment of counsel.
4. Inquire as to whether accused is requesting that counsel be appointed.
5. Provide accused persons requesting appointed counsel with necessary forms for requesting appointment of counsel and ensure that reasonable assistance in completing required forms is provided to the accused at the time of the magistrate’s hearing.
6. For persons arrested on out-of-county warrants, the magistrate will ask the defendant if he/she would like to request appointed counsel. The magistrate will record the response, and if counsel is requested, the magistrate will provide the arrestee with the appropriate forms for requesting counsel. The magistrate will ensure assistance in completing the forms at the same time. The forms will be transmitted to the appointing authority in the county issuing the warrant within 24 hours of the request being made.
7. If the magistrate has reason to believe the accused is not mentally competent, the magistrate shall enter a request for counsel on behalf of the accused. Such a request will alert the appointing authority that counsel competent to represent mentally ill persons should be appointed.
iii. In cases where the individual was arrested without an arrest warrant, bench warrant, capias, or other order of magistrate or judge, the magistrate shall determine if there is probable cause to believe the person committed the offense.
1. If probable cause has not been determined by a magistrate:
- A person arrested for a misdemeanor must be released on bond, in an amount not to exceed $5,000, not later than 24 hours after the person's arrest.
b. A person arrested for a felony must be released on bond, in an amount not to exceed $10,000, not later than 48 hours after the person’s arrest.
c. If requested by the state, the magistrate may postpone the release of the defendant for not more than 72 hours after the defendant's arrest, in compliance with the procedure set forth in Article 17.033, Texas Code of Criminal Procedure.
iv. The magistrate shall set the amount of bail and any conditions of bond for the accused, if bail is allowed by law and has not been set by the court or magistrate issuing a warrant.
v. The magistrate shall record the following:
- The date and time the accused was arrested and the date and time when he/she was brought before the magistrate.
2. Whether the magistrate informed the accused of the right to request appointment of counsel and asked the accused whether he/she wants to request counsel.
3. Whether the accused requested appointment of counsel
vi. If the magistrate is not authorized to appoint counsel and if the accused requests appointment of counsel, the magistrate shall transmit or cause to be transmitted the magistrate form and any other forms requesting appointment of counsel to the Justice of the Peace, Pct. 1, the Presiding Judge of the Cass County CCL, or the Presiding Judge of the 5th District Court. The forms requesting appointment of counsel shall be transmitted without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel.
vii. If the magistrate is authorized to appoint counsel, the magistrate shall make a determination of indigence and appoint counsel if the defendant is indigent within three working days unless the County has a U.S. Census population over 250,000, in which case counsel shall be appointed within one working day.
viii. If a request for counsel was made at magistration, the appointing authority shall forward the magistrate form and any other forms requesting appointment of counsel to the appropriate clerk to be put into the case file.
ix. If a request for counsel was not made at magistration, the magistrate will forward the magistrate form to the clerk to be put into the case file.
Indigence Determination Standards
A. Definitions, as used in this rule:
i. “Indigent” means a person who is not financially able to employ counsel.
ii. “Net household income” means all income of the accused and spousal income actually available to the accused. Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); net self-employment income (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the accused has no income or lesser income.
iii. “Household” means all individuals who are actually dependent on the accused for financial support.
iv. “The cost of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.
B. Eligibility for Appointment
i. An accused is presumed indigent if any of the following conditions or factors are present:
1. At the time of requesting appointed counsel, the accused or accused’s dependents are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing;
2. The accused’s net household income does not exceed __100__% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register;
3. The accused is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought; or
4. The difference between the accused’s monthly net household income and reasonable necessary expenses is less than $500.00. Reasonably necessary expenses should include but are not limited to: rent or mortgage, food/groceries, car payment, car insurance, health insurance, medical bills, and utilities (water, electric, gas, phone).
ii. An accused who does not meet any of the standards above shall nevertheless be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the accused’s dependents. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:
the nature of the criminal charge(s),
anticipated complexity of the defense,
the estimated cost of obtaining competent private legal representation for the matter(s) charged;
the amount needed for the support of the accused and the accused’s dependents;
source of income,
assets and property owned,
the number and ages of dependents, and
spousal income that is available to the accused.
iii. Factors NOT to be considered in determining indigence:
1. The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.
The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.
iv. Only the accused's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.
C. Indigence Proceedings:
i. The appointing authority can require the accused to respond to questions about the accused’s financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.
ii. Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be for any purpose other than:
1. Determining if accused is (or is not) indigent; or
2. Impeaching direct testimony of accused regarding the accused’s indigence.
iii. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.
iv. An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused’s financial circumstances occurs.
1. An accused’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the accused, the accused’s attorney, or the attorney representing the state. The accused’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:
a. Evidence of a material change in the accused’s financial circumstances, as a result of which the accused does not meet any of the standards for indigence contained in these rules; or
b. Additional information regarding the accused’s financial circumstances that shows that the accused does not meet any of the standards for indigence contained in these rules.
2. If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.
v. If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.
Minimum Attorney Qualifications
A. The Judges hearing criminal cases shall establish attorney appointment lists for the following categories of offenses. Attorneys may apply for and be placed on multiple lists. To be eligible for an appointment list, an attorney must meet the following minimum requirements:
Residency and Record-Keeping Requirements:
Court. Membership on the appointment
list for 1st Degree, 2nd Degree, 3rd Degree,
and State Jail Felonies shall be limited to attorneys who maintain their
principal offices in Cass County, Texas.
County Court at
Law. Membership on the appointment list
for Misdemeanors shall be limited to attorneys who
their principal offices in Cass County, Texas; or
have a substantial history of accepting appointments in Cass County CPS cases.
In both District
Court and County Court at Law, An attorney
shall submit by October 15th each year a statement that describes
the percentage of the attorney's practice time that was dedicated to work based
on appointments accepted in this county for adult criminal cases and juvenile
delinquency cases for the prior 12 months that begins on October 1 and ends on
September 30. The report must be submitted through the online form to the Texas
Indigent Defense Commission/form prescribed by the Texas Indigent Defense
Commission to the court administration office in the county.
All attorneys on
the appointment list must ensure all information on their application is
An attorney must be
a licensed practicing attorney and a member in good standing of the State Bar
An attorney shall
complete a minimum of 6 hours of CLE in the area of criminal law and procedure
each year. All attorneys on the appointment
list must file a certificate with the court coordinator each year attesting to
completion of the required CLE or submit documentation showing that the
attorney is certified as a specialist in criminal law. Continuing legal education activity completed
within a one-year periods immediately preceding an attorney’s initial reporting
periods may be used to meet the educational requirements for the initial
year. Continuing legal education
activity completed during any reporting period in excess of the minimum of 6
hours for such period may be applied to the following period’s
requirement. The carryover provision
applies to one year only;
An attorney must
have a minimum of 1 year experience in criminal law;
An attorney may 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 3 year(s);
attorney must maintain an office capable of receiving email, fax, and telephone
An attorney must
have the ability to produce typed motions and orders;
An attorney shall
notify the court coordinator promptly, in writing, of any matter that would
disqualify the attorney by law, regulation, or rule or under these guidelines
from receiving appointments to represent indigent defendants.
State Jail Felony
and Third Degree Felony Case Qualification Requirements
An attorney must
meet the general residency requirements;
An attorney must
meet the general requirements for misdemeanor appointments;
An attorney must
have a minimum of 1 year(s) experience in criminal law;
First Degree and
Second Degree Felony Case Qualification Requirements
An attorney must
meet the general residency requirements;
An attorney must
meet the general requirements for State Jail and Third Degree Felony
An attorney must
have a minimum of 1 year(s) experience in criminal law;
An attorney must
have experience as 1st or 2nd chair in at least 1 felony
case(s) tried to a verdict before a jury.
At least 1 of the trial(s) must have been felonies. The styles and cause numbers of these cases
must be listed in the Court’s appointment application form.
Lead trial counsel
must be on the list of attorneys approved by the local selection committee of
the First Administrative Judicial Region for appointment as lead counsel in
death penalty cases, as provided by Article 26,052, Texas Code of Criminal
counsel must be on the list of attorneys approved by the local selection
committee of the First Administrative Judicial Region for appointment as lead
trial counsel or second chair counsel in death penalty cases, as provided in
Article 26,053, Texas Code of Criminal Procedure.
Qualification Requirements –
No Residency Requirement
for Membership on Appeal Appointment List
An attorney must
meet at least one of the following criteria:
currently board certified in criminal law by the Texas Board of Legal
personally authored and filed at least three criminal appellate briefs or
post-conviction writs of habeas corpus; or
submitted an appellate writing sample approved by a majority of the judges; or
worked as a briefing clerk of an appellate court for a period of at least one
for Admission to Appointment Lists
County Court at Law
Appointment List – An attorney must be approved by a majority of the Statutory
County Court Judges hearing criminal cases.
Appointment List – an attorney must be approved by a majority of the District
Court Judges hearing criminal cases.
– Appointment to the Indigence Defense Appointment lists shall be for a two-year
term beginning October 1 in any odd-numbered year and ending September 30 of
the following odd-numbered year.
Selection to the Indigence Defense Appointment lists shall be made in
September of each odd-numbered year.
Attorneys desiring to continue receiving appointments must reapply for
admission to the list and provide the information and CLE hours required by
Texas law and these guidelines. The
applicable forms for readmission to the Indigent Defense Appointment Lists are
available in the Cass County District Clerk’s Office.
From Appointment List – The judges will monitor attorney performance on a
continuing basis to assure the competency of attorneys on the list. An attorney may be removed or suspended, as
appropriate, from one or more appointment lists by a majority vote of the
to Appointment Lists
An attorney who was
removed from the appointment list for non-completion of the required CLE hours
may be immediately reinstated upon providing proof that the attorney has
completed the required hours so long as the attorney otherwise meets the other
qualifications under this Plan.
An attorney who has
been removed from the appointment list for any other reason and who wishes to
be reinstated must apply through the original application process.
of Appointed Counsel – Appointed Counsel shall:
Notify the court
within 72 hours of the receipt of appointment;
reasonable effort to:
defendant by the end of the first working day after the date on which the
attorney is appointed; and
defendant as soon as practicable after the attorney is appointed;
The Defendant is
The attorney is
relieved of his duties by the Court or replaced by other counsel after a
finding of good cause entered on the record.
by self or through an investigator, the facts of the case and be prepared to
present any factual defense(s) that may be reasonably and arguably available to
Brief the law of
the case and be prepared to present any legal defense(s) that may be reasonably
and arguably available to the defendant;
Be prepared to
negotiate with the prosecutor for the most favorable resolution of the case as
can be achieved through a plea agreement;
Be prepared to try
the case to conclusion either with or without a jury’
Be prepared to file
post-trial motions, give notice of appeal, and appeal the case pursuant to the
standards and requirements of the Texas Rules of Appellate Procedure;
communication and contact with the client at all times and keep the client
informed of the status of the case; and
Advise the client
on all matters involving the case and such collateral matters as may reasonably
be required to aid the client in making appropriate decisions about the case;
the attorney’s duty owed to the defendant in accordance with these procedures,
the requirements of the Code of Criminal Procedure, and applicable rules of
attorney’s workload to allow for the provision of quality representation and
the execution of the responsibilities listed in these rules in every case.
Prompt Appointment of Counsel
A. Prompt Appointment of Counsel
i. Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel. Working day means Monday through Friday, excluding official state holidays. Counsel must be appointed whether or not a case has been filed in the trial court.
ii. If the defendant is released from custody prior to the appointment of counsel, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.
iii. If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within three (3) working days of this county’s receipt of the request for counsel.
iv. If a defendant is arrested in this county based on another county’s warrant, counsel will be appointed for the defendant if, on the eleventh (11th) day after the arrest, the defendant is still in this county’s custody.
v. If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/ or from the District Clerk’s office, the Court Coordinator for the 5th District Court or the County Court at Law. The defendant may submit these forms to the District Clerk’s office. The court will rule on all requests for counsel submitted in this manner.
vi. Appointment Authority
1. If no case has been filed in the trial court, the appointing authority for misdemeanors is: Justice of the Peace, Pct. 1, or the Presiding Judge for the Cass County CCL, or the Presiding Judge of the 5th District Court.
2. If no case has been filed in the trial court, the appointing authority for felonies is: Justice of the Peace, Pct. 1, or the Presiding Judge for the Cass County CCL, or the Presiding Judge of the 5th District Court.
3. If the case has been filed in the trial court, the appointing authority is: Justice of the Peace, Pct. 1, or the Presiding Judge for the Cass County CCL, or the Presiding Judge of the 5th District Court.
B. Defendants Appearing Without Counsel - If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement:
i. 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.
ii. If the defendant has requested appointed counsel, the court may not direct or encourage the defendant to communicate with the attorney representing the state unless the appointing authority has denied the request and, subsequent to the denial, the defendant:
1. Has been given a reasonable opportunity to retain and has failed to retain appointed counsel; or
2. Waived or has waived the opportunity to retain private counsel.
iii. The attorney representing the state may not:
1. Initiate or encourage an attempt to obtain from the defendant a waiver of the right to counsel; or
2. Communicate with a defendant who has requested the appointment of counsel, unless the appointing authority has denied the request and subsequent to the denial, the defendant:
a. Has been given a reasonable opportunity to retain counsel; or
b. Waives or has waived the opportunity to retain private counsel.
C. Waiver of the Right to Counsel
i. A defendant may voluntarily and intelligently waive the right to counsel.
ii. A waiver obtained in violation of section IV.B above is presumed invalid.
iii. If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation. If the court determines that the waiver is voluntarily and intelligently waived, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings.
“I have been advised this ___ day of ____, 2___, by the (name of court) Court of my right to representation by counsel in the case pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel. (signature of defendant)”
iv. A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel. If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.
Attorney Selection Process
A. The appointing authority will identify which of the appointment lists, discussed in the Section III (attorney qualifications), is most appropriate based on the accusations against the defendant and will appoint the attorney whose name is first on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order. Good cause may include:
i. The defendant requesting counsel does not understand English, in which case the judge will appoint the lawyer whose name appears next in order and speaks the clients’ language, if one is available;
ii. The defendant has an attorney already appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter, unless the attorney is not on the list for the type of offense involved in the current case; or
iii. Other good cause exists for varying from the list.
B. Once appointed, an attorney’s name will be moved to the bottom of the appointment list. An attorney who is not appointed in the order in which the attorney’s name appears on the list shall remain next in order on the list.
C. Judicial Removal from Case:
i. The judge presiding over a criminal case may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, the following:
1. Counsel’s failure to appear at a court hearing;
2. Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
3. Current information about the defendant and the charges against the defendant indicate that another qualified attorney is more appropriate for the defendant under these rules;
4. Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;
5. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
6. The defendant requests an attorney, other than trial counsel, for appeal; or
7. The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.
ii. Appointment of Replacement Counsel - Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.
D. Capital Felony Appointment Procedures and Rules
The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases in which the death penalty is available unless good cause exists to appoint private counsel. If a co-defendant requests appointment of counsel and is determined to be indigent, the Appointing Authority shall appoint counsel pursuant to the standards and procedures stated in this Section.
Fee and Expense Payment Process
A. Court appointed counsel shall be compensated for all reasonable and appropriate services rendered in representing the accused. Compensation shall be reasonable for time and effort expended and will be in accordance with a fee schedule adopted and approved by a majority of the judges hearing criminal cases in the county.
B. Payment Process: No payment of attorney’s fees will be made other than in accordance with the rules set forth below.
i. An appointed attorney shall fill out and submit a fee voucher to the court for services rendered.
ii. The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.
1. If a judge disapproves a request for compensation, the judge shall make written findings, stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.
2. An attorney whose request for payment is disapproved or is not otherwise acted on by the 60th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of this administrative judicial region.
C. Payment of Expenses:
i. Court appointed counsel will be reimbursed for reasonable and necessary expenses incurred, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior approval shall be paid according to the procedures set forth below. Whenever possible prior court approval should be obtained before expenses are incurred.
ii. Procedure With Prior Court Approval:
1. Appointed Counsel may file with the trial court a pretrial ex parte confidential request for advance payment of investigative and expert expenses. The request for expenses must state the below, as applicable:
a. The type of investigation to be conducted or the type of expert to be retained;
b. Specific facts that suggest the investigation will result in admissible evidence or that the services of an expert are reasonably necessary to assist in the preparation of a potential defense; and
c. An itemized list of anticipated expenses for each investigation and/or each expert.
2. The court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:
a. State the reasons for the denial in writing;
b. Attach the denial to the confidential request; and
c. Submit the request and denial as a sealed exhibit to the record.
iii. Procedure Without Prior Court Approval: Appointed counsel may incur investigative or expert expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred. Unreasonable or unnecessary expenses will not be approved.
Under Texas Supreme Court Emeregency Orders, Magistration may occur, at the discretion of the Magistrate, via televideo (Zoom) hearing.
Cass District and County Court Affidavit of Indigence.pdf (10/16/2015 2:29:25 PM) view
Cass District and County Court Attorney Fee Schedule.pdf (6/26/2021 10:08:41 AM) view
Cass District and County Court Attorney Fee Voucher.doc (8/18/2010 11:07:50 AM) view