Fannin Juvenile Board Plan
Prompt Detention Hearings
2010 INDIGENT DEFENSE PLAN
FOR FANNIN COUNTY JUVENILE APPOINTMENTS
Prompt Detention Hearings
APPOINTMENT OF COUNSEL FOR CHILDREN IN DETENTION
A. INITIAL DETENTION HEARING
1. A child taken into custody must either be brought to Fannin County Juvenile Services without unnecessary delay where they may not be detained for longer than six hours pursuant to Section 52.025, Family Code, or another disposition authorized by Section 52.02, Family Code. The Juvenile Probation Officer/Juvenile Services shall process the child according to the requirement of Section 53.01, Family Code.
2. If the child is not released by Juvenile Services, then a detention hearing shall be
held not later than the second working day after the child is taken into custody unless the child is detained on a Friday, Saturday, or listed holiday in which case the detention hearing shall be held on the first working day after the child is taken into custody.
3. If the juvenile is detained, the child has an immediate right to counsel. If counsel
has not already been appointed, the court must either appoint counsel or direct the juvenile’s parent or other responsible adult to retain an attorney promptly. The court may enforce an order to retain counsel by appointing an attorney to represent the child and requiring that the child’s parent or other responsible adult reimburse the court for attorney’s fees.
4. Upon a decision by Juvenile Services to refer a child to the juvenile court for a detention hearing, the child’s parent/guardian/custodian shall be informed of the child’s right to hire an attorney immediately. The adult shall also be informed of the right to apply for a court-appointed attorney IF the child is detained by the court and IF the child’s family cannot afford to provide an attorney (i.e. meeting indigent standards).
5. The court or the court’s designee may appoint an attorney as counsel and/or as a guardian ad litem for the first detention hearing without a Motion for a Court-Appointed Attorney if there is no parent who appears with the child at the initial detention hearing. Such appointment shall remain in effect until there is a review of the family’s ability to pay for an attorney or until the parent/guardian/custodian provides an attorney for the child and that attorney notifies the court of his/her representation of the child. The appointment shall otherwise continue from hearing to hearing.
6. If the juvenile is detained and the family has established it cannot afford an attorney, an attorney shall be appointed immediately by the court or the court’s designee. Prior to the appointment, the district clerk or designee shall inform the court if the child has already been represented by a Fannin County court-appointed attorney. If the child already has been represented, the same attorney shall continue to represent the child, except for good cause shown.
7. If a family can afford an attorney, the court shall immediately ORDER, or the court’s designee shall instruct, the family to provide an attorney for the child within two working days of the child’s detention or appear in court to show why the adult(s) should not be held in contempt. The court coordinator will provide a case reset form for such hearing.
8. If the family does not qualify for a court-appointed attorney and has not provided an attorney within two working days after the child has been detained, the family must appear in court and may immediately submit a motion for a court-appointed attorney or show cause why they have not provided an attorney for the child. Upon a showing of good cause, the court may appoint an attorney limited to the date of the child’s next detention hearing or may appoint an attorney who is to represent the child until the case is resolved.
9. If a child is released prior to the initial detention hearing, the Fannin County Juvenile Services shall inform the child’s parent/guardian/custodian of the child’s right to move for court appointed counsel if charges are filed against the child. Forms to request a court-appointed attorney shall be provided to the juvenile or the juvenile’s parent/guardian/custodian upon request. The Fannin County Juvenile Services shall provide the parties the contact information for the attorney appointed by the Court to juvenile matters.
10. Upon appointment at a detention hearing, or later if good cause is shown by the parents ordered but unable to provide an attorney, the district clerk or her designee shall notify the attorney by electronic communication, email or personal contact of the appointment and the next scheduled hearing time and date.
11. The appointed attorney shall make every reasonable effort to contact a child in detention by the end of the first working day after receiving the notice of appointment or inform the court that the appointment cannot be accepted. Contacting the child in detention may be by personal visit, including contact during a detention hearing, by phone, or by electronic communication. Contacting the Court may be by electronic communication, email, phone or personal visit.
12. A court-appointed attorney shall contact the child by personal visit, including a visit during a detention hearing, no less than once every ten working days the child remains in detention.
13. An attorney appointed for a detention hearing shall continue to represent the child except for good cause shown.
14. Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.
B. SUBSEQUENT DETENTION HEARINGS
1. If a child is not represented by counsel at a subsequent detention hearing, the court may appoint an attorney limited to the date of the detention hearing.
Indigence Determination Standards
Indigence Determination Standards
DETERMINATION OF INABILITY TO AFFORD AN ATTORNEY
A. The juvenile’s family may be eligible for an attorney if either parent’s household income falls within the current Federal Poverty Guidelines as published in the Federal Register from time to time. The guidelines shall apply separately to each parent of the child if the parents do not live in the same household. If one parent is outside the poverty guidelines, that one parent can be ordered to hire an attorney for the child.
B. If the parents do not live in the same household, each parent subject to the court’s jurisdiction shall complete the motion and affidavit for court appointed attorney.
C. The presumption is that no parent whose household income comes within the Federal Poverty Guidelines shall be ordered to reimburse Fannin County for attorney fees. The poverty guidelines shall apply separately to each parent of the child if the parents do not live in the same household.
D. A family is presumed to be eligible for a court-appointed attorney if the parent/guardian/custodian of the household in which the child resides has been determined to be eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing. The presumption can be overcome if one parent is outside the guidelines in which case that one parent can be ordered to hire an attorney for the child.
E. If a family’s income does not fall within the Federal Poverty Guidelines, the judge may appoint an attorney if the family income does not exceed 125% of the Federal Poverty Guidelines as established and revised annually by the Department of Health and Human Services and published in the Federal Register. Such families can be ordered to reimburse Fannin County for all or part of the legal expenses or expert or other expenses.
F. The court may appoint an attorney in disregard of the financial guidelines when the interests of justice so require and the family will be required to repay all costs of representation except for good cause.
G. Any order for reimbursement of attorney fees shall have a beginning date effective after restitution has been paid unless the issue of restitution is severed for a separate hearing or mediation.
H. No statement of an adult or a child during the application for an attorney process shall be used against the child at any adjudicatory or dispositional phase of a child’s case.
Minimum Attorney Qualifications
Minimum Attorney Qualifications
A. GENERAL QUALIFICATIONS
1. All attorneys must be able to work independently within the Fannin County juvenile justice system which includes a working knowledge of use of forms, working with juvenile probation and detention officers and the assistant district attorneys assigned to juvenile matters and must be familiar with the Juvenile Justice Code.
2. All attorneys must be familiar with the paperwork required for various hearings and must not use court staff to complete paper work.
3. Attorneys certified in Juvenile Law or Criminal Law by the Texas Board of Legal Specialization are qualified for any appointment.
4. All attorneys must be licensed by the State of Texas and in good standing with the Texas State Bar.
5. All attorneys must have a physical address to which correspondence can be received and the juvenile or the juvenile’s parent/guardian/custodian can locate and meet the attorney.
6. All attorneys must have a method of regularly receiving telephoned messages.
7. All attorneys must have either a functioning email, or some electronic method of receiving and sending written messages.
8. All attorneys must have a technical means of producing printed motions and/or orders.
9. All attorneys must promptly notify the district clerk and juvenile court of any changes to the information on file with the juvenile court and district clerk.
10. All attorneys shall promptly notify the juvenile court of any matter that would disqualify the attorney from receiving appointments under these guidelines or under any other law, regulation or rule.
11. All attorneys must complete at least 6 hours CLE in juvenile law each year. This requirement is waived for the initial application process. All attorneys shall file a copy of his/her Continuing Legal Education annual report form. Such report shall reflect a minimum of six hours of juvenile law during each 12-month reporting period and be filed annually with the juvenile court/336th District Court’s coordinator no later than thirty days after receipt by the attorney of the form from the State Bar of Texas, but in any case, no later than December 30th of each year. The juvenile court/District Court’s coordinator shall inform the chair of the juvenile board no later than January 15th of the following year about the status of compliance by each listed attorney.
12. All attorneys must be approved by the District Court serving as the Juvenile Court unless or until more than one court is designated as a Juvenile Court in Fannin County, then all attorneys must be approved by majority vote at a juvenile board meeting.
13. All attorneys must agree to be bound by and accept as a condition of their appointment the schedule for court-appointed attorney fees for the juvenile court/336th District Court of Fannin County and other rules of this plan.
14. Attorney Reporting: 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 on line form to the Texas Indigent Defense Commission. Proof of compliance with this provision shall be provided to the District Court by submitting to the District Court Coordinator, either in writing or email, a copy of the report submitted to the Texas Indigent Defense Commission.
1. The applicant must have six months experience in juvenile law as a prosecuting attorney, or
2. The applicant must observe or participate in at least 3 detention hearings and 2 agreed adjudication/disposition hearings, and;
3. The applicant must meet with juvenile court staff, juvenile probation services personnel, and the assistant district attorney(s) assigned to the juvenile court.
4. After six months on the CINS appointment list an attorney will be automatically moved to the delinquent conduct list unless a juvenile court judge has suspended the attorney from the list and submitted the name to the juvenile board for removal from the list. If not removed from the CINS list, the attorney will be placed on the delinquent conduct list.
C. DELINQUENT CONDUCT.
1. Complete the requirements for the CINS list.
D. TRANSFER TO CRIMINAL COURT/CERTIFICATION.
1. The attorney must have met other juvenile court-appointment requirements, must have been lead counsel in two contested juvenile transfer/certification hearings, otherwise, at the court’s discretion, the court will appoint a mentoring attorney with appropriate qualifications to assist the attorney of record, or substitute the attorney of record with a qualified attorney.
1. Attorneys for appeals shall comply with Family Code, Chapter 56, and supply the needed affidavits.
2. Notwithstanding that preference shall be given to the attorney who represented the child before the decision to appeal was made, attorneys appointed for an appeal shall have one (1) year of juvenile law experience or three (3) years of criminal law experience.
REMOVAL FROM THE LIST
A. An attorney subjected to discipline by the State Bar of Texas Code of Conduct shall immediately inform the juvenile court in writing of the nature and the reason for the discipline.
B. The juvenile court may temporarily suspend, an attorney from the list for the following reasons:
(a) noncompliance with the SBOT Code of Conduct
(b) failure to communicate with the child client
(c) inappropriate interaction with a child
(d) deficient representation of a child including an inability to function independently within the juvenile system
(e) repeated failure to promptly attend hearings or to arrange a substitute attorney
(f) other good cause such as noncompliance with annual CLE or reporting requirements under this plan, submitting a claim for legal services not performed
Prompt Appointment of Counsel
IV. Appoint Counsel Promptly for Juveniles
A. Appointment of Counsel for Children in Detention
i. Prior to the detention hearing the court shall inform the parties of the child’s right to counsel and to appointed counsel if they are indigent, and of the child’s right to remain silent as to the alleged conduct.
ii. Unless the court finds that the appointment of counsel is not feasible due to exigent circumstances, the court shall appoint counsel within a reasonable time before the first detention hearing is held to represent the child at that hearing.
iii. Prior to the initial detention hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the detention decision.
iv. If there is no parent or other responsible adult present, the court must appoint counsel or a guardian ad litem for the child.
v. If the juvenile is detained, the child has an immediate right to counsel. If counsel has not already been appointed, the court must either appoint counsel or direct the juvenile’s parent or other responsible adult to retain an attorney promptly. The court may enforce an order to retain counsel by appointing an attorney to represent the child and requiring that the child’s parent or other responsible adult reimburse the court for attorneys’ fees.
vi. Upon appointment, the District Clerk and or the District Court Coordinator shall notify the appointed attorney by electronic communication, email, or personal contact of the appointment and the scheduled hearing time and date.
vii. The appointed attorney shall make every reasonable effort to contact a child in detention by the end of the first working day after receiving the notice of appointment or to inform the court that the appointment cannot be accepted. Contacting the child in detention may be by personal visit (including contact during a detention hearing), by phone, or by video teleconference. Contacting the court may be by electronic communication, email, phone or personal visit. A court-appointed attorney shall contact the child, in one of the ways mentioned above, no less than once every ten working days while the child remains in detention.
viii. An attorney appointed for a detention hearing shall continue to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court. Release of the child from detention does not terminate the attorney’s representation.
ix. Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.
B. Appointment of Counsel for Children not Detained at Intake
i. If the child is released from detention and if a petition to adjudicate or a motion to modify is filed, the juvenile court will use the financial forms gathered at intake to make a determination of indigence. If no financial information is available, the juvenile court shall promptly summon the child’s parent/guardian/custodian to the court so that financial information may be gathered for a determination of indigence.
ii. If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:
a. The date a petition for adjudication or discretionary transfer hearing has been served on the child; or
b. A motion to modify disposition seeking commitment to TJJD or placing in secure correctional facility has been filed.
iii. If the family does not qualify for appointed counsel or if the parent or guardian is not available, and the family fails to provide an attorney, the juvenile court may appoint an attorney in any case in which it deems representation necessary to protect the interests of the child. The Court has the authority to order all or part of the costs of court appointed counsel be repaid to the County by the parent(s) or guardian(s) or custodian(s), not inconsistent with indigency.
iv. The prosecuting attorney/court clerk shall notify the juvenile court upon the filing of and return of service of a motion to modify or the return of service of a petition for adjudication or discretionary transfer.
Attorney Selection Process
Attorney Selection Process
The appointing authority will identify which of the appointment lists, discussed in the attorney qualifications section, is most appropriate based on the accusations against the child 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:
The child 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;
The child 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;
An initial detention hearing is scheduled and the first attorney on the list is unavailable; or
Other good cause exists for varying from the list.
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.
Judicial Removal from Case:
The judge presiding over a case involving a child may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, the following:
Counsel’s failure to appear at a court hearing;
Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
Current information about the child and the charges against the child indicate that another qualified attorney is more appropriate for the child under these rules;
The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
The child requests an attorney, other than trial counsel, for appeal; or
The child shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the child, and the court finds good cause;
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.
II. GENERAL PRINCIPLES
A. CONTINUITY OF REPRESENTATION
1. If a child has been represented by a Fannin County court-appointed attorney, preference will be given to appointment of the same attorney.
2. When an attorney is appointed, the attorney shall represent the child until the case is terminated or substitute counsel is appointed or hired.
3. Court-appointed attorneys shall obtain information at the initial meeting(s) with the child sufficient to the seal the case.
4. With notice to the court and to the child, a court-appointed attorney may arrange with another attorney on the court appointment list to have a substitute attorney for an individual hearing without a change of the attorney of record. The temporary substitution is not an appointment.
5. With notice to the court and to the child, a court appointed attorney may request the court to appoint a substitute attorney for one hearing. The temporary substitution is not an appointment.
B. CONFLICT OF INTEREST
1. An attorney who is a parent of a child may not represent the child or a co- respondent or a co-defendant of the child.
2. A court-appointed attorney representing a child may not also represent a co-respondent or co-defendant of the child except for judicial economy and the best interests of all parties.
C. GOOD CAUSE FOR APPOINTING AN ATTORNEY OUTSIDE THE ROTATION LIST
1. An attorney may be appointed outside the rotation if the interests of justice would be served by appointing an attorney already familiar to the child and the child’s case(s).
2. An attorney may be appointed outside the rotation if the attorney has given notice he/she is not available due to illness, prior court scheduling, continuing legal education, vacation, military obligations, etc.
3. An attorney may be appointed outside the rotation list if the client has special needs such as interpretation or physical impairment and the attorney can accommodate those needs.
4. An attorney may be appointed outside the rotation list if the attorney has specialized experience such as familiarity with mental health issues.
5. An attorney may be appointed outside the rotation list if the child has an immediate need and the attorney appointed can attend the case immediately. Such an appointment can be for a limited purpose.
6. An attorney may be appointed outside the rotation list if the child needs to be able to meet with an attorney geographically close to the child’s home or school.
D. OTHER GENERAL GUIDELINES
1. A child with no parent in Fannin County shall be presumed to require a court-appointed attorney until the parent/guardian/custodian provides an attorney or requests a court-appointed attorney.
2. The guardian/custodian of a child with no parent in Fannin County shall be presumed to be unable to repay any of the costs of an attorney unless the court finds good cause for such reimbursement.
3. The court will not appoint an attorney to represent a parent except for the parent’s contempt of court proceeding. The same attorney will not also represent the child.
4. The court will not appoint an attorney for a child if the parent(s) can afford to hire an attorney for the parent(s).
5. Notice to the court by attorneys in order to comply with these procedures is preferred to be by electronic communication or email or hand delivery or phone call to the juvenile Court/336th District Court coordinator.
6. Attorneys shall present their request for payment no later than the end of the fiscal year (September 30) after the cocnclusion of the final hearing. Patial payments are allowed billable monthly, at the
conclusion of each hearing, or as otherwise set out in this plan.
7. For the purposes of rotation, the individual child and not the number of cases a child has shall count as one appointment.
Fee and Expense Payment Process
Fee and Expense Payment Process
COMPENSATION OF COUNSEL APPOINTED UNDER THIS PLAN.
a. Application for Payment for representation of juveniles charged with CINS or Delinquent Conduct. Counsel shall submit requests for payment according to the following provisions:
i. All requests for payment shall be made using the auditor’s approved Attorney Fee Voucher form, attached as Appendix 5, or such substantially similar voucher as may be approved by the Court. Unless the voucher is submitted to the Court at the detention or disposition hearing, the voucher shall be submitted to the Fannin County District Clerk’s office.
b. Compensation for juvenile cases:
i. Attorneys are to be paid a reasonable fee for the following: time spent in court making an appearance; reasonable and necessary time spent out of court on the case, supported by documentation that the court requires; preparation of an appellate brief and preparation and presentation of oral argument to an appellate court; and preparation of a motion for rehearing. A fee schedule is to govern these payments, taking into account reasonable and necessary overhead rates. No payment is to be made to the attorney unless the judge approves the payment. If the judge disapproves the requested amount, the judge shall make written findings stating the amount of payment and the reasons for any disapproval. An attorney whose request for payment is disapproved may appeal the disapproval. Tex. Code Crim. Proc. Art. 26.05(a)-(e).
ii. The following are set as the minimum and maximum allowable fees for appointed Lead Counsel:
1. Hourly payment for juvenile cases shall be made at a rate of $75 to $100 per hour for preparation time, contested hearings, trial and appeals.
2. Hourly payment for capital murder cases shall be at a rate of $150 per hour for preparation time, contested hearings, trial and appeal. Second chair shall be paid at a rate set out in paragraph
iii. The 336th District Court Judge each year shall review the fee schedule and shall have the authority to modify the fee schedule.
c. Timely Request for Compensation of Representation in Felony Cases.
If possible, the attorney should present the court with a completed Attorney Fee Voucher form upon disposition of the case. An attorney verification form (Appendix 6) shall be attached to all attorney fee vouchers submitted for payment upon disposition of the case. In no event shall payment be requested more than 30 days after disposition of the case. Requests for payment submitted more than 30 days after disposition of the case WILL NOT BE APPROVED, except for good cause shown in highly unusual situations.
d. Partial Payments.
No advance payments will be made on juvenile cases however, partial payments will be allowed upon proper billing. Additionally, payment for the trial court disposition for juvenile cases, shall be made pending appeal. Payment for services performed on appeal would then be made at the conclusion of all appeals.
Application for payment for preparing and filing briefs on appeal shall be submitted at the conclusion of all appeals. The application for payment shall be submitted to the presiding trial court judge. A copy of each brief prepared shall be submitted with the application for payment.
h. Investigative and Expert Expenses. Counsel appointed in juvenile cases 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.
i. 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 expertexpenses. The request for expenses must state, as applicable:
a) the type of investigation to be conducted or the type of expert to be retained, including the qualification of said expert(s) and disclosure of findings(s) by any court excluding the proposed
expert(s) testimony due to lack of qualifications or unreliability of scientific theory applied by expert(s).
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 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.
ii. 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. Articles 26.05(f), (g) & (h), Code of Criminal Procedure
A. COURTROOM PROTOCOL
1. The attorney shall not leave the courtroom until all paperwork, including a completed Order of Release or a case reset form for each case is signed and copies distributed.
2. If a subsequent hearing is needed, the attorney shall not leave the courtroom until a date to return is obtained from the court coordinator, a case reset form is filled out and signed, and copies are made for
the family and others. One copy shall be given to the assistant district attorney. The defense attorney is responsible for gathering the juvenile's signature and delivering a copy to the State.
3. If the hearing is the final hearing, the attorney shall not leave the courtroom until the attorney for juvenile has conferenced with the juvenile about the right to appeal.
Approved and adopted this the 30th day of June 2010 by the Fannin County Juvenile Court Judge and as ammended October 30th, 2019.
Laurine J. Blake, Juvenile Court Judge
336th District Court Judge
Fannin Juvenile Board Affidavit of Indigence.doc (10/30/2019 2:58:30 PM) view
Fannin Juvenile Board Appointment of Attorney.doc (10/30/2019 3:59:24 PM) view
Fannin Juvenile Board Attorney Application for Appointment.doc (6/23/2010 10:54:53 AM) view
Fannin Juvenile Board Attorney Fee Schedule.doc (7/1/2010 9:47:59 AM) view
Fannin Juvenile Board Attorney Fee Voucher.doc (6/23/2010 10:56:23 AM) view
Fannin Juvenile Board Attorney verification.doc (10/30/2019 2:59:51 PM) view
Fannin Juvenile Board Order apporinting attorney.doc (6/23/2010 10:55:50 AM) view