FANNIN COUNTY COURTS

 

PLAN AND STANDING RULES AND ORDERS GOVERNING

PROCEDURES FOR TIMELY AND FAIRLY APPOINTING

COUNSEL FOR INDIGENT ACCUSED PERSONS

IN FANNIN COUNTY, TEXAS

 

Effective Date – November 1, 2011 

 

Be it remembered that on this date, and pursuant to Art. 26.04 of the Texas Code of Criminal Procedure, the below-signed County Court at Law Judge for Fannin County and 336^th District Court Judge hereby adopt, order, establish, and order published these countywide procedures, rules, and orders for timely and fairly appointing counsel for indigent defendants in the county arrested for or charged with a misdemeanor punishable by confinement or any felony.

 

 

Core Requirement 1 of the Fair Defense Act

 

DUTIES OF ARRESTING OFFICER AND MAGISTRATE

 

1. The arresting officer and magistrate shall perform the duties set forth at Art. 15.17, Texas Code of Criminal Procedure, together with any other duties required by state or federal law.

 

2. Any person arrested or taken into custody within this county shall be taken before a magistrate of this county without unnecessary delay, and not later than 48 hours after the person is arrested.

 

3. The Justices of the Peace of Fannin County shall establish a plan to coordinate daily availability of a District, County, or County Court at Law Judge, Justice of the Peace or other magistrate authorized by law to provide magistrate warnings to arrested persons.  Justice of the Peace, Precinct 1, shall be responsible for coordinating availability.

 

4. The magistrate shall provide the warnings required by law, either in person or by closed circuit television or in any other manner authorized by law, and may use the Adult Magistrate Warning form attached as Appendix 1 to document said warnings.

 

5. The magistrate shall inform the arrested person of the right to request appointment of counsel and of the procedures for requesting appointment of counsel.  The magistrate shall make available to the arrested person the forms necessary for the appointment of counsel as set forth in this plan, and shall ensure that the arrested person is provided reasonable assistance in completing said forms. 
6. If the arrested person requests the appointment of counsel, the arrestee is required to complete under oath a questionnaire concerning his financial resources.  (See Appendix 2) The magistrate shall, 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 Clerk of the Court of Fannin County, either County or District depending on the level of offense charged, any original forms and other information provided by the arrested person as may be necessary for appointment of counsel as set forth in this plan, including but not limited to, the Adult Magistrate’s Warning form, Affidavit of Indigency, and Request for Court Appointed Counsel.  The Sheriff’s Office shall maintain a copy of said documents.  The District and County Clerks shall maintain all original documents in a manner rendering the data accessible for audit ensuring compliance with this plan.

 

7. The record of the magistrate’s warning must comply with Article 15.17(e), and must contain information indicating:

 

                                                              i.      The magistrate informed the person of the person’s right to request appointment of counsel;

 

                                                            ii.      The magistrate asked the person whether the person wanted to request appointment of counsel; and

 

                                                          iii.      Whether the person requested appointment of counsel.

 

This record may consist of written forms, electronic recordings, or other documentation as authorized by procedures adopted in the county under Article 26.04(a). Tex. Code Crim. Proc. Art. 15.17(e)-(f).

h. 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.

 

Core Requirement 2 of the Fair Defense Act

 

DETERMINING INDIGENCE

 

1. Criteria For Indigence

 

                                                              i.      Definitions

 

1.      "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); 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 defendant has no income or lesser income.

2.  “Household” means all individuals who are actually dependent on   the defendant for financial support.

3.  “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.

 

                                                            ii.      Financial Standards for Determining Indigence:  The Court or the Court’s designee making court appointments of counsel for indigents shall consider the following standards for determining indigence and such other reasonable factors as the Court finds bearing on financial inability of a defendant to retain counsel:

 

1.      Defendant’s income from any and all sources;

2.      Sources of the defendant’s income;

3.      Assets of the defendant;

4.      Property owned by the defendant, or in which the defendant has an interest;

5.      Outstanding obligations of the defendant;

6.      Necessary expenses of the defendant;

7.      The number and age of the defendant’s legal dependents;

8.      Spousal income available to the defendant; and

9.      Such other reasonable factors as determined by the judge.

10.  The Court or the Court’s designee shall not consider whether the defendant has posted bail, except to the extent that it reflects on the defendant’s financial circumstances.  Tex. Code Crim. Proc. Art. 26.04(l)-(m)

 

                                                          iii.      Application Process.  Persons who request a determination of indigency and appointment of counsel shall:

 

1.      Complete under oath the Affidavit of Indigency concerning financial resources, attached as Appendix 2, or such substantially similar Application as may be approved by the court;

2.      Respond under oath to an examination regarding his financial resources by the judge responsible for determining whether the defendant is indigent; or

3.   Complete the Affidavit of Indigency and respond to examination  by the judge.

 

                                                          iv.      Determination of Indigence.  A defendant shall be considered indigent if the person falls within any of the following criteria, as established by evidence deemed competent and reliable by the court:

 

1.      Poverty Guidelines.  The accused/defendant’s net household income is at or below the most recently published Federal Poverty Guidelines, as determined by the U.S. Department of Health and Human Services and published annually in the Federal Register.  See, http://aspe.hhs.gov/poverty/index.shtml.

2.  Governmental Assistance.  The defendant or the defendant's  dependants have been determined to be eligible to receive food  stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.

3.   In Custody.  The defendant is currently serving a sentence in a  correctional institution, is currently held in custody and unable  to post bail due to indigent status, 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.

4.  Other Factors.  A defendant who does not meet any of the  financial standards above shall nevertheless be determined    indigent 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 dependants. 

5.   A defendant who is determined by the court to be indigent is  presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs.  If there is a material  change in financial circumstances after a determination of   indigence or non-indigence is made, the defendant, the defendant’s counsel, or the attorney representing the State may   move for reconsideration of the determination.  Tex. Code   Crim. Proc. Art. 26.04(p).

 

                                                            v.      Partial Indigence.  Pursuant to Art. 26.05 (g), if the Court finds that the defendant is employed, and has financial resources that enable him to offset in part the costs of the legal services provided, the court shall ORDER that the defendant pay during the pendency of the charges the amount that it finds the defendant is able to pay.  Failure to make payments as required may result in the dismissal and discharge of the attorney appointed.

 

                                                          vi.      Employment of Retained Counsel.  A defendant who retains counsel following the appointment of counsel shall be required to repay the costs of the court-appointed legal services provided.

 

Code Requirement 3 of the Fair Defense Act

 

1. Qualifications for Appointment.  Attorneys must possess the following qualifications to be eligible for the Felony, Misdemeanor and Juvenile Appointment Lists:

 

i.    Attorneys must be licensed to practice law in the State of Texas.

 

ii. Attorneys must be members in good standing with the State Bar of  Texas.

 

  iii. Attorneys must devote at least thirty (30%) percent of their time  practicing criminal law in the State of Texas or must be board certified  by the Texas Board of Legal Specialization in criminal law.

 

iv. Attorneys appointed must not have been found by any court to have engaged in professional misconduct within the last three (3) years.

 

v.  Attorneys must not have received a public reprimand or greater penalty from the State Bar of Texas within the last three (3) years.

 

vi. Attorneys must not have been convicted, given probation, deferred  adjudication or fined for a felony level offense, or a crime involving moral turpitude, or any misdemeanor Class A or Class B offense.

 

vii. Attorneys must not be currently under indictment or charged with a felony or a criminal offense involving moral turpitude, or any misdemeanor Class A or Class B offense.

 

viii. Attorneys must complete at least ten (10) hours of CLE in criminal law  each year.  Attorneys accepting appointments of juveniles are required to annually obtain six (6) hours of juvenile law continuing legal education  (CLE) credit per year Title 1, §174.2 of the Texas Administrative Code.  All attorneys must file with the Judge of the appropriate Court a copy of   the attorney’s Continuing Legal Education annual report form (or a list  of CLE completed if the attorney has been licensed less than one year)  no later than December 30^th of each year. Such report shall reflect a   minimum of ten (10) hours in criminal law (six (6) hours in juvenile  law) beginning with the report for 2010.  Beginning January 1, 2011, an  attorney is allowed a maximum of five (5) hours of self-study to count  toward CLE requirements (three (3) hours of self study in juvenile law). Attorneys may carry over up to 10 hours in criminal law (three (3) hours  in juvenile law) to the next reporting year.  Those attorneys who fail to  comply with the CLE provisions of the plan will be removed on January 16^th of each year unless good cause is shown not to do so.

 

ix. Attorneys representing juveniles must devote at least ten (10%) of their time practicing juvenile  law in the State of Texas or must  be  board certified by the Texas  Board  of  Legal Specialization in juvenile  law or provide   proof   of   completion   of   CLE   course  specifically  designed   to   teach   effective  representation  of   juveniles  including  supervision, delinquent conduct, or  commitment  to  the  Texas Youth  Commission,  and  submit  certificate of completion at least once every   two (2) years.

 

 x. Attorneys must have an office with a physical address that can be given  to defendants.

 

xi. Attorneys must complete an application/affidavit and provide all  relevant information to be considered for inclusion in this Plan.  (See Appendix 3)

 

 xii. Attorneys applying for inclusion in this Plan agree to be bound by and   accept as a condition of appointment the schedule for Court-appointed  attorneys fees set forth herein.

 

 xiii. Attorneys are required to act with competence, commitment and   dedication to the interest of the accused/defendant and with zeal in  advocacy upon the defendant’s behalf consistent with the Texas  Lawyer’s Creed and Rules of Professional Conduct.

 

 xiv. Attorneys are under an independent and ethical duty to supplement their application/affidavit with information that may affect their eligibility for court appointments under this plan.

 

  xv. An attorney meeting all the qualifications under the plan must be approved by the County Court at Law Judge or the District Court  Judge for consideration and inclusion on the respective Appointment  List.

 

b.  Duties/Responsibilities of Attorneys to Accused/Defendant

 

i. Appointed attorneys shall make every reasonable effort to contact the  defendant not later than the end of the first working day after the date on  which the attorney is appointed and to interview the defendant as soon  as practicable after the attorney is appointed.

 

ii. Attorneys are appointed to represent an indigent defendant until the defendant is acquitted, appeals are exhausted, or the Court, after  entering a finding of good cause on the record, relieves the attorney  and/or replaces the attorney with other counsel.

 

iii. Attorneys appointed in misdemeanor cases are responsible to ascertain whether an indigent client has a pending felony or is subsequently charged with a felony offense to which another attorney has been  appointed.  If this occurs, it shall be the misdemeanor attorney’s   immediate responsibility to inform the Court and the felony appointed  attorney so that a substitution may be effected.  The withdrawing misdemeanor attorney shall immediately make arrangements for an orderly transfer of his/her files(s) and also must submit their bill for services to the appropriate Court.

 

c.  Procedures for Removal of Attorneys from the Court Appointed Lists

 

               i. Grounds for removal – An attorney may be removed from the appointment list if the attorney:

 

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

2.      has submitted a claim for legal 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; or

8.      has intentionally misrepresented statements on the application for the appointment list.

 

  ii. An attorney may also be removed from the appointment list for any other stated good cause.

 

  1.  Referral – If a judge/member of the juvenile board believes that an  attorney has violated any of the provisions listed in the paragraph  above, the judge/juvenile board member may refer an attorney to the  board of judges/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.  The Board of   Judges shall include the District Court Judge, the County Court at Law Judge and the County Judge.

   2.   Notification/Hearing – Upon receiving an attorney referral, the board  of judges/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 board of judges/juvenile board will meet to discuss the  referral and  give the  attorney  an opportunity to respond to the referral in writing or in   person or both.

     3. Action – After the board of judges/juvenile board meets and gives the attorney an opportunity to be heard, the board of judges/juvenile board shall determine whether the attorney should:

 

(a)    remain on the appointment list at the same level;

(b)    move to an appointment list for indigent defendants charges with less serious offenses; or

(c)    be removed from appointment list altogether.

(d)   The attorney may be removed from the appointment list or moved to an appointment list for indigent defendants charged with less serious offenses by a majority vote of the judges/juvenile board members present.  In addition, the majority of the judges/juvenile board members may also vote to require the attorney to take other rehabilitative measures.  Removals from any list may be probated.  For removal or probated removals, the judges/juvenile board members order the removal may require the completing of 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” number 6 or 7 shall be immediately reinstated upon providing proof that the charges were dismissed or that the attorney was acquitted, unless other grounds for removal exist against the attorney that would prohibit reinstatement.

 

 The decision of the board of judges/juvenile board is final and may not be appealed.

  

d.  Appointed Attorney Reporting Procedure

 

              i.        Attorneys are required to submit by October 15 each year the percentage of the attorney's practice time  that was dedicated to work based on

                        appointments accepted in this county for adult criminal and juvenile delinquency cases for the prior 12 months that begins on October 1and ends on

                        September 30.

 

                 

Core Requirement 4 of the Fair Defense Act

 

PROCEDURE FOR CONSIDERATION, APPOINTMENT AND NOTIFICATION OF APPOINTMENT OF COUNSEL.

 

                  a.  Consideration of Application by Court or Court’s designee. 

 

i. Court or Court’s designee.  Determination of indigency and appointment   of counsel under this plan may be made by either the County Court at Law Judge or by a person who may be designated by the County Court at Law Judge for misdemeanor offenses and the District Judge or District Judge’s designee for felony level offenses.

 

ii. Persons in custody.  After receiving notice from the magistrate that an  arrested person has requested the appointment of counsel, the Court or Court’s designee for the applicable Court shall review the Affidavit of  Indigency and such other information bearing on the financial status of  the defendant and make a determination of indigence status and appoint  counsel not later than the end of the third working day after the date on  which the Court or Court’s designee receives the request, or, if later,  within the time frame set forth in the Texas Code of Criminal   Procedure.

 

iii. Persons not in custody.  If the accused/defendant is released from   custody by posting a bond or otherwise after the person has completed     the Affidavit of Indigency, but prior to a determination of indigence, the  Court or the Court’s designee shall deny the request for appointment of   counsel, and the accused/defendant will be required to complete a new Affidavit of Indigency at or before the first appearance in court after the    case has been filed or when adversarial judicial proceedings are initiated, whichever comes first. Art. 1.051(j).  Determinations of indigence and   appointment of counsel for persons not in custody shall be made by the   presiding judge of the Court in which the case is filed prior to the next    scheduled appearance following the submission of the application.

 

 iv. Juveniles – Motion to detain.  If the child does not have counsel at the  detention hearing and a determination was made to detain the child, the   child is entitled to immediate representation of an attorney.  The court   must order the retention of an attorney or appoint an attorney.  Tex Fam. Code § 51.10(c)

 

   v.  Juveniles – No detention sought.  If a determination was not made to detain the child, determinations of indigence are made on the filing of a   petition if:  (1) the child is released by intake; (2) the child is released at   the initial detention hearing; or (3) the case was referred to the court   without the child in custody.  Tex. Fam. Code § 51.101(c).  A juvenile    court that makes a finding of indigence under Subsection 51.101(c) must   appoint an attorney to represent the child on or before the fifth working  day after the date the petition for adjudication or discretionary transfer  hearing was served on the child § 51.101(d).

 vi. Out-of-County Warrants. If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within 3 working day(s) of this county’s receipt of the request for counsel. If a defendant is arrested in this county based on another county’s warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county’s custody. 

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: Fannin County Jail. The defendant may submit these forms to: Fannin County Clerk’s Office. The court will rule on all requests for counsel submitted in this manner.

 

                  b. Appointment of Counsel and Procedure for Notification of Appointment

 

              i. Notification of Court Appointed Counsel. At the time the Court or  Court designee finds that the defendant is indigent and appoints an   attorney, the clerk or court coordinator shall notify both the defendant  and attorney, and may use the Notice of Appointment form attached as Appendix 4 to provide said notice, or any other written order generated  by the Court reflecting appointment of counsel.

 

                  ii. If the defendant is in custody, a copy of the Order of Appointment shall be delivered to the Fannin County Sheriff to be provided to the  defendant.  If the defendant is not in custody, the Order of   Appointment shall be mailed to the defendant’s address of record.

 

                 iii. The appointed attorney shall ordinarily be notified of the appointment  by email or fax, but any other method of notification deemed expedient by the Court may be used in appropriate circumstances.  At the time of the appointment, the attorney shall be  informed whether the defendant is or is not in the custody of the Fannin County Sheriff.

 

      c.  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.

 

 

Core Requirement 5 of the Fair Defense Act

 

STANDARDS FOR APPOINTMENT OF COUNSEL  

 

a.  Misdemeanor Appointment List. All attorneys meeting the qualifications for appointment and who have been approved by the County Court at Law Judge shall be  placed on the Misdemeanor Appointment List.  Application shall be made in writing on a form approved by the Fannin County Court  at Law Judge.  (Appendix 3)

 

b. Felony Appointment List.  All attorneys meeting the qualifications for  appointment and who have been approved by the 336^th District Judge shall be placed on the Felony Appointment List.  Application shall be made in writing on a form approved by the 336^th District Judge. (Appendix 3)

                 

c.   Allocation of Appointments.

 

i. Attorneys shall be appointed from the Felony and Misdemeanor   Appointment Lists using a system of rotation.  Attorneys shall be appointed from among the next five names on the appointment list in the order in which the attorneys’ names appear on the list, unless the Court makes a finding of good cause on the record for appointing an attorney  out of order.  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.     The appointments shall be made in a fair, neutral, and non-discriminatory manner.

 

ii. Appointment by rotation shall not be required in the following circumstances:

.

1. An attorney previously appointed to represent an  accused/defendant that has a pending misdemeanor case shall  also be appointed on any subsequent misdemeanor case(s) that  defendant might have prior to the completion of the initial  appointment.

2.  If an accused/defendant has a pending felony charge/case, then  the Court or the Court’s designee may appoint the attorney that is  representing the  accused/defendant  on   the felony charge/case.

3.  If defendant has both felony and misdemeanor charges pending,   the appointment of attorney shall be made by the District Court  Judge consistent with the system of rotation.

4. The attorney appointed on the original case on which the       defendant was placed on probation and a subsequent MTA/MTR   was filed, the Court shall first consider the appointed attorney who originally handled the case unless good cause is shown, then the Court will defer to the standard appointment    rotation.

5. If the Court or the Court’s designee determines that the  defendant does not speak and understand the English language or   that the defendant is deaf, the Court or the Court’s designee shall   make an effort to appoint an attorney who is capable of   communicating in a language understood by the defendant. 

                

Core Requirement 6 of the Fair Defense Act

 

COMPENSATION OF COUNSEL APPOINTED UNDER THIS PLAN.

 

a.  Fixed Rate Compensation for representation of persons charged only with misdemeanor offense. Attorneys appointed to represent eligible persons  charged or being held by Fannin County only on misdemeanor offenses shall be    compensated according to the following fee schedule adopted as provided under Article 26.05(b) of the Code of Criminal Procedure:

 

 

 

 

DISPOSITION	FEE
BY JURY OR NON-JURY TRIAL	$400 PER HALF-DAY $750 PER DAY
AGREED PLEA OR DISMISSAL OF CHARGES PRIOR TO JURY SELECTION	$300
AGREED PLEA ON JAIL CHAIN DOCKET, REQUIRING ONLY ONE CLIENT CONSULTATION AND ONE COURT APPEARANCE; OR MTR/MTA	$175
PREPARING AND FILING BRIEF ON APPEAL	$1,200 PER APPELLATE BRIEF FILED
PRETRIAL HABEAS CORPUS OR BOND MOTIONS	$100
REPRESENTATION OF PERSONS CHARGED WITH MULTIPLE MISDEMEANOR OFFENSES	UP TO AN ADDITIONAL $100
REPRESENTATION OF PERSONS UNABLE TO SPEAK AND UNDERSTAND THE ENGLISH LANGUAGE	UP TO AN ADDITIONAL $100

 

b.  Compensation Above Fixed Rate for representation of persons charged only with   misdemeanor offenses. The County Court at Law Judge may approve payment  ABOVE the fixed rate amounts in unusual circumstances or where the fee  would be manifestly inappropriate because of circumstances beyond the control of the appointed counsel.  At the time such circumstances become apparent, the attorney must advise the court, in writing, of the circumstances.   Such information shall be provided to the presiding judge ex parte and in   camera.  At the time the attorney submits application for payment, the attorney  must attach in triplicate a detailed explanation of services performed including   the date performed, the time spent on each activity, and a designation of in court  or out of court time.  Said request shall be submitted no later than the time case   is finalized or pled, along with all necessary supporting documentation to be  considered for compensation above the fixed rate.  If said request is untimely,   the attorney will be compensated at the fixed rate.  An attorney whose request for payment is disapproved may appeal the disapproval.  Tex. Code Crim. Proc. Art. 26.05 (a)-(e).

 

c.  Application for Payment for representation of persons charged with felony and misdemeanor offenses.  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 plea hearing, the voucher shall be submitted to the Fannin County Clerk’s office for misdemeanor cases and to the Fannin County District Clerk’s Office for felony and juvenile cases, located at the Fannin County Courthouse.

 

 d.  Compensation for felony or 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 felony cases (State Jail-First Degree) shall be made at a rate of $50 to $100 per hour for  preparation time, contested hearings, trial and appeals.

               2.  Hourly payment for juvenile matters shall be at a rate of $50 to $100 per hour for preparation time, detention hearings,  adjudication hearings, and disposition hearings.

               3.  Hourly payment for capital murder cases shall be at a rate of  $125 per hour for preparation time, contested hearings, trial  and appeal.  Second chair shall be paid at a rate set out in paragraph (1) above.

 

   iii.  The 336^th District Court Judge each  year  shall   review the fee schedule and shall have the authority to modify the fee schedule.

 

e.  Timely Request for Compensation of  Representation in Misdemeanor,

     Juvenile, and Felony Cases.

      If possible, the attorney should present the court with a completed Attorney

      Fee  Voucher  form   in    triplicate  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.

 

f.  Partial Payments.  No advance payments will be made on felony, juvenile, or

    misdemeanor cases, however,  partial  payments  will be allowed upon proper

    billing.      Additionally,   payment   for  the   trial   court  disposition,    either

    misdemeanor, juvenile, or felony,  shall  be  made  pending appeal.   Payment

    for services performed on appeal would then be made at the conclusion of all

    appeals.

 

g. 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 misdemeanor,

     felony, or 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 expert  expenses.  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

 

 

This Plan was approved by the County Court at Law  and is effective

beginning November 1, 2011.

 

SIGNED AND ORDERED this the 1st day of November, 2011.

 

 

 

__________________________________              

Charles W. Butler, Judge

County Court at Law, Fannin County 

 

STANDARD OPERATING PROCEDURES

FANNIN COUNTY

DUE PROCESS AUDIT

 

 

Randomly, at least once each quarter, print a jail activity report for the period being audited.

The report shall reflect the arresting date and time, not the book-in date and time.

 

The magistrate acting as auditor (“Auditor”) shall take the jail activity report and accompany the magistrate to the jail.

 

The “Auditor” shall record the results of each person magistrated taking special care to note whether the arrested person is requesting appointment of legal counsel.

 

Note on the jail activity report the date and time magistrate was performed.

 

On an excel (or comparable program) spreadsheet, the results of the audit shall be detailed using the following format:

            Name of arrested person

            Arrest date and time

            Magistrate date and time

            Hours between arrested date and time and magistrate date and time

            Court appointed attorney requested – Yes or No

Date court appointed attorney request form was faxed or hand delivered to the applicable court via the Clerk’s office for said court, or scanned and emailed to the applicable court in the Clerk’s office for said court.  The original magistrate’s form and court appointed attorney request form shall be delivered to applicable Clerk’s office by the magistrate or Sheriff’s Office personnel.

Notes – In the note column, record and highlight information applicable to the audit report such as:  “Within compliance” or “Arrested person not seen by magistrate and will be out of compliance if not seen by xxx date and time…”

 

The “Auditor” shall fax or email completed audit spreadsheet to the following:

            Sheriff

            Jail Lieutenant

            District Judge

            District Clerk’s Office

            County-Court-at-Law Judge

            Magistrates

            County Judge

 

As a review of the requirements of the Texas Fair Defense Act (Senate Bill 7 of the 2001 Legislature), now partially codified as Section 15.17 of the Texas Code of Criminal Procedure, please note the following:

 

1)      The person having custody of an arrested person, not later than 48 hours after arrest, shall take the person before a magistrate.

2)      The magistrate shall determine whether the arrested person is requesting appointment of legal counsel.

 

3)      If counsel is requested and the magistrate lacks authority to appoint counsel for the level of offense charged, the magistrate shall not later than 24 hours transmit to the appropriate court the forms requesting appointment of counsel.

 

Fannin County’s plan of implementation requires:

 

1)  The appropriate Judge to appoint counsel not later than 3 days, after receipt of the request, and

           

2)      Appointed attorneys to contact the new client within 1 day, and to interview the defendant as soon as practical

 

In summary, Fannin County’s Judges should receive notice of a request for attorney not later than 72 hours after arrest, and the arrested person have counsel appointed with another 72 hours.

 

 

Fannin County Court Affidavit of Indigence.doc (7/1/2010 10:19:12 AM) view
Fannin County Court Attorney Application for Appointment.doc (7/1/2010 10:21:59 AM) view
Fannin County Court Attorney Fee Schedule.doc (11/3/2011 10:17:26 AM) view
Fannin County Court Attorney Fee Voucher.doc (7/1/2010 10:23:49 AM) view
Fannin County Court Attorney verification.doc (7/1/2010 10:24:41 AM) view
Fannin County Court Magistrate’s Warning Form.doc (7/1/2010 10:15:25 AM) view