STANDARDS AND PROCEDURES RELATED TO APPOINTMENT OF COUNSEL FOR INDIGENT DEFENDANTS IN VAN ZANDT COUNTY, TEXAS

To implement the Texas Fair Defense Act (FDA, Acts 2001, 77th Leg.), the Administrative Judge of the Statutory County Court adopts the following standards and procedures related to the appointment of counsel for indigent defendants in both misdemeanor and felony cases in the County Court at Law, Van Zandt County, Texas. The County Courts' plan for appointment of counsel is effective upon approval by the Administrative Judge of the Statutory County Court of Van Zandt County.

 

Rule 1. Applicability

 

1.10 These rules will govern procedures relating to the appointment of legal counsel to represent indigent persons in criminal proceedings in the Van Zandt County Court at Law.

 

Rule 2. Definitions

 

2.10 Definitions, as used in these rules:

           1. “CCP” means the Texas Code of Criminal Procedure.

 

           2. “Cost of obtaining competent private legal representation” includes the reasonable cost of support services such as interpreters, investigators and expert witnesses as necessary given the nature of the case.

 

            3. “Electronic broadcast system” means a two-way electronic communication of image and sound between the arrested person and the magistrate and includes secure internet videoconferencing.

 

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

 

5.  “Indigent” means a person who is not financially able to employ counsel.

 

            6.  “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.

 

            7. “Non-exempt assets and property” means cash on hand, stocks and bonds, and accounts at financial institutions.

 

             8. “Record” or “recording” means written documents or electronic recordings.

 

             9.  “Appointing Authority” means the Administrative Judge of the Statutory County Court who has authority to establish an indigent defense plan and approve attorneys to represent indigent defendants in criminal cases under Art. 26.04 CCP.

 

Rule 3. Procedures for Timely Appointment of Counsel

 

3.10 Arresting Officer’s Responsibilities

A. 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.  The arrested person may be taken before the magistrate in person or the image of the arrested person may be presented to the magistrate by means of an electronic broadcast system. [Art. 14.06(a) CCP]; [Art. 15.17(a) CCP]

 

B.  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 competed and filed at the time an arrestee is booked into a jail for any felony or misdemeanor punishable by incarceration

 

C.  If a person is arrested on a warrant issued by a judge for violation of any of the conditions of community supervision:

            1.  The arresting officer shall immediately report the arrest and detention to the judge. [Art. 42.12 Sec. 21(b) CCP];

           

            2.  No later than 48 hours after the person is arrested, the arresting officer or the person with custody of the arrested person shall take the arrested person before the judge who ordered the arrest or, if the judge is unavailable, before a magistrate of the county in which the

                 person was arrested. [Art. 42.12 Sec. 21(b-1) CCP].

                                                                                                                   

D.  Release of defendants arrested without warrant

            1.  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. [Art. 17.033 CCP]

 

            2.  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. [Art. 15.17(a) CCP]

 

            3.  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 CCP.

 

3.20 Dissemination of Information to Arrested Person

A. Attached hereto and incorporated herein for all purposes are the approved admonishments and forms which explain an arrested person's rights with respect to representation by attorney.  These forms are to be provided to all persons arrested in Van Zandt County for an offense

     committed in Van Zandt County, conviction of which may result in punishment by confinement.

 

B. If the arrested person is brought to the Van Zandt County Justice Center to appear before the rotating magistrate then the Van Zandt County Jail Administrator or his designee shall provide Your Rights Regarding Representation by an Attorney (Counsel), Information Regarding Representation of Attorney and Affidavit of Indigence to the arrested person prior to their appearance before the magistrate.  The information shall be provided so as to give the arrested person sufficient time to review the material prior to his/her appearance before the magistrate.

 

C. If the arrested person is taken by the arresting officer to a magistrate prior to delivery to the Van Zandt County Justice Center, then, during book-in, the officer is required to provide proof that the arrested person was provided, prior to their appearance before the magistrate, with

     the information contained in 3.20B above.

 

 3.30 Magistrate’s Responsibilities

A.  At the Magistrate’s Article 15.17 hearing, the magistrate shall ensure that the following information and assistance are provided in a manner and using terminology and language that the arrested person can understand. [Art. 15.17(a) CCP] 

 

B. If the magistrate determines that the arrested person does not speak or understand the English language or is deaf, the magistrate shall ensure that the following information and assistance are provided with the assistance of an interpreter, in an appropriate manner consistent with Articles 38.30 (Interpreter) and 38.31 (Interpreters for Deaf Person) CCP.

 

C. Whenever an arrested person is first brought before a magistrate, the magistrate shall immediately perform the duties described in Article 15.17, CCP, including:

            1.  Advise the accused, either in person or through electronic broadcast system, of the accusation(s) against him/her and of any affidavit filed therewith;

 

            2.  Pursuant to Art. 15.17 CCP, admonish the accused of:

                        a. 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 the 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 the accused is requesting that counsel be appointed;

 

            5. Provide the accused persons requesting appointment 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 Article 15.17 hearing.  If

                   additional assistance is needed, the Magistrate or Jail Staff will notify the Indigent Defense Coordinator.  The Indigent Defense Coordinator will assist the defendant in person.

 

            6. 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 shall be recorded in such a way that alerts the Van Zandt County Indigent Defense Coordinator that

                counsel competent to represent mentally ill persons should be appointed.

 

D. 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. 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 procedures set forth in Article 17.033 of the Texas Code of Criminal Procedure.

 

E. The magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall, after determining whether the person is currently on bail for a separate criminal offense, admit the person arrested to bail, if bail is allowed by law, and set any conditions of pre-trial release bond for the accused. [Art. 15.17(a) CCP]

 

F. A recording of the communication between the accused person and the magistrate shall be made. [Art. 15.17(a) CCP].  The magistrate shall cause a written record of the following to be made; shall sign said written order; and shall provide the accused with a copy of said document:

            1. The date and time the accused was arrested;

2. The date and time when the accused was brought before the magistrate;

3. That the magistrate informed the accused of the right to request appointment of counsel;

4. That the magistrate asked the accused whether the person requests appointment of counsel; and

            5.  Whether the accused requested appointment of counsel.

 

G. The recording shall be preserved until the earlier of the following dates:

            1. the date on which the pre-trial hearing ends; or

            2. the 91st day after the date on which the recording is made if the person is charged with a misdemeanor; or

            3. the 120th day after the date on which the recording is made if the person is charged with a felony.

 

H. The Magistrate’s Warning Form attached hereto and incorporated herein is the record to be used by all magistrates in Van Zandt County, Texas pursuant to these Rules.

 

I.  The Magistrate will forward the Magistrate's Warning Form and any other forms requesting appointment of counsel to the Van Zandt County Indigent Defense Coordinator, 121 E. Dallas Street, Room 301, Canton, TX 75103, Tel: 903-567- 7593, Fax: 903-567-5652.  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. [Art. 15.17(a) CCP]

  

J.  If a request for counsel was made at magistration, the appointing authority shall forward the magistrate form and any other forms requestomg appointment of counsel to the Indigent Defemse Coordinator to be put into the case file.  Sheriff’s Department staff will email completed affidavits and supporting documents within one day of completion by the Magistrate.

K.  If a request for counsel was not made at magistration, the magistrate will forward the magistrate form to the Indigent Defense Coordinator to be put into the case file.  Sheriff’s Department staff will email completed affidavits and supporting documents within one day of completion by the Magistrate.

L. The Transmittal Log is to be attached to and accompany all requests for appointed counsel.

 

M. If a person is arrested on a warrant issued by a judge for violation of any of the conditions of community supervision [Art. 42.12 Sec. 21(b-1) & (b-2) CCP]:

            1. the judge who ordered the arrest or, if the judge is unavailable, a magistrate of the county in which the person was arrested, shall perform all appropriate duties, and may exercise all appropriate powers as provided by Art. 15.17 CCP with respect to an arrest for a new

               criminal offense;

           

            2. only the judge who ordered the arrest for the alleged violation may authorize the person’s release on bail;

           

            3.  the arrested person may be taken before the judge or magistrate by means of an electronic broadcast system as provided by and subject to the requirements of Art. 15.17  CCP;

 

            4. if the arrested person is not released on bail, on motion by the accused, the judge who ordered the arrest shall cause the accused to be brought before the judge for a hearing on the alleged violation within 20 days of filing of said motion. [Art. 42.12 Sec. 21(b-2)

N.  For a person arrested on an out-of-county warrant, the magistrate must ask if the person wants to request counsel, inform the person of the procedures for requesting counsel, and ensure the person is provided reasonable assistance in completing the necessary forms for requesting coFor a person arrested on an out-of-county warrant, the magistrate must ask if the person wants to request counsel, inform the person of the procedures for requesting counsel, and ensure the person is provided reasonable assistance in completing the necessary forms for requesting counsel in the county issuing the warrant. [Art. 15.18(a-1), CCP] Requests for counsel made by persons arrested on out-of-county warrants must be transmitted to the appointing authority of the county issuing the warrant within 24 hours of the request being made. [Art. 15.18(a-1), CCP]

 

Rule 4. Procedures and Financial Standards for Determining Whether a Defendant is Indigent

 

4.10.     Eligibility for Appointment

A.  An accused is presumed indigent if at the time of requesting appointed counsel, the accused are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.

 

B.  An accused is also considered indigent if the accused meets any one of the following three criteria AND meets the asset test set out in subsection 3(a) below:

1.   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;

 

2.  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

 

3.   The difference between the accused’s monthly net household income and reasonable necessary expenses is less than $800.00 when the offense is felony and $400.00 for a misdemeanor.  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).

                        a.  In addition to meeting one of the criteria under section 2 above, an accused is considered indigent only if the value of non-exempt assets and property owned by the accused does not exceed the greatest of the following:

                            i.       $2,500;

                       

    ii.      $5,000 in the case of an accused whose household includes a person who is 60 years or older, disabled, or institutionalized; or

                       

b.  Double the estimated cost of obtaining competent private representation for the offense with which the accused is charged.

 

C. 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:

            1.      the nature of the criminal charge(s),

            2.      anticipated complexity of the defense,

            3.      the estimated cost of obtaining competent private legal representation for the matter(s) charged;

            4.      the amount needed for the support of the accused and the accused’s dependents; 

            5.      accused’s income,

            6.      source of income,

            7.      assets and property owned,

            8.      outstanding obligations,

            9.      necessary expenses,

            10.    the number and ages of dependents, and

            11.    spousal income that is available to the accused.

 

D.  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.

 

4.20.    Factors  NOT to be considered in determining indigence:

A.      The appointing authority may not consider whether the accused has posted or is capable of posting bail, except to the extent that it reflects the accused financial circumstances as measured by the considerations listed in 4.10C above.

 

B.      Other then community property, the resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.

 

4.30.     Indigence Proceedings:

A.  The Van Zandt County Indigent Defense Coordinator and/or 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.

 

B.  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.

 

C.  A request by the Van Zandt County Indigent Defense Coordinator and/or the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Rules 3 and 4 of these rules and contained in CCP article 1.051.

 

D.  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.

 

E.         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.

 

Rule 5: Adult Minimum Attorney Qualifications for Adults

5.10.    The Local Administrative Statutory County Court Judge shall establish attorney appointment lists for the following categories of offenses. Attorneys may apply for and be placed on one or more lists by submission of Attorney Application For Appointment. To be eligible for an appointment list, an attorney must meet the following minimum requirements:

 

5.20 Misdemeanor Qualification Requirements:

 

A.      All attorneys on the appointment list must ensure all information on their application is correct;

 

B.      An attorney must be a licensed practicing attorney and a member in good standing of the State Bar of Texas;

 

C.      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 Indigent Defense Coordinator each year on or before December 31^st 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 period immediately preceding an attorney’s initial reporting period 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 8 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only;

 

D.      An attorney must have a minimum 1 year experience in criminal law, unless a request for waiver is approved by the Appointing Authority for good cause.

 

E.      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 5 year(s);

 

F.      An attorney must maintain an office capable of receiving email, fax, and telephone calls;

 

G.      An attorney must have the ability to produce typed or legible hand-written motions and orders;

 

H.      An attorney shall notify the Indigent Defense Coordinator promptly, in writing, of any matter that would disqualify the attorney by law, regulation, rule or under these guidelines from receiving appointments to represent indigent defendants.

 

5.22 State Jail and Third Degree Felony Case Qualification Requirements

 

A.      An attorney must meet general requirements for misdemeanor appointments;

 

B.      An attorney must have a minimum 3 year(s) experience in criminal law;

 

5.24 Second Degree Felony Case Qualification Requirements

 

A.     An attorney must meet the general requirements for State Jail and Third Degree Felony appointments.

 

B.      An attorney must have a minimum 4 year(s) experience in criminal law;

 

5.26 First Degree Felony Case Qualification Requirements

 

A.      An attorney must meet the general requirements for State Jail and Third Degree Felony appointments.

 

B.      An attorney must have a minimum 5 year(s) experience in criminal law;

 

C.      An attorney must have experience as 1st or 2nd chair in at least 2 felony case(s) tried to 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 District Courts appointment application form.

 

 

5.28 Appeal Qualification Requirements

A.  An attorney must meet at least one of the following criteria:

 

B.  Be currently board certified in criminal law by the Texas Board of Legal Specialization; or

 

C.  Have personally authored and filed at least three criminal appellate briefs or post-conviction writs of habeas corpus; or

 

D.  Have submitted an appellate writing sample approved by a majority of the judges; or

 

E.  Have worked as a briefing clerk of an appellate court for a period of at least one year.

 

5.30.     Approval for Appointment Lists

 

A.        Misdemeanor List – An attorney must be approved by the Local Administrative Statutoruy County Courts Judge.

 

B.        State Jail and Third Degree Felony, First and Second Degree Felony List - An attorney must be approved by the Local Administrative Statutory County Courts Judge. 

 

5.40 Removal 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 the Local Administrative Statutory County Courts Judge.

 

5.50 Reinstatement to Appointment Lists

A. 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.

 

B. 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. 

 

5.60  Duties of Appointed Counsel

Appointed Counsel shall:

 

A. Notify the court within 72 hours of the receipt of appointment;

 

B. Make every reasonable effort to:

1.         Contact the defendant by the end of the first working day after the date on  which the attorney is appointed; and

 

2.         Interview the defendant as soon as practicable after the attorney is  appointed;

 

C. Represent the defendant until:

1.      Charges are dismissed;

2.      The defendant is acquitted;

3.       Appeals are exhausted; or  

4.      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.

            

D. Investigate, either 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 the defendant;

 

E. 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;

 

F. Be prepared to negotiate with the prosecutor for the most favorable resolution of the case as can be achieved through a plea agreement;

 

G. Be prepared to try the case to conclusion either with or without a jury;

 

H. 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;

 

I. Maintain reasonable communication and contact with the client at all times and keep the client informed of the status of the case; and

 

J. Advise the client on all matters involving the case and such collateral matters as may reasonably be required to aid the client is making appropriate decisions about the case; and

 

K. Perform the attorney’s duty owed to the defendant in accordance with these procedures, the requirements of the CCP, and applicable rules of ethics.

 

L. Manage attorney’s workload to allow for the provision of quality representation and the execution of the responsibilities listed in these rules in every case.

 

5.70 Temporarily removed from list

An attorney may voluntarily be removed from the list of court appointments for a period not to exceed 6 months upon submission of a written request to the Van Zandt County Indigent Defense Coordinator indicating period of temporary removal.

 No later than October 15 of each year, each attorney must submit a written report on the form prescribed by the Texas Indigent Defense Commission describing the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the County or District for adult criminal cases and for 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 Texas Indigent Defense Commission’s online portal.

Rule 6. Procedures for prompt appointment of Counsel

 

6.10 Prompt Appointment of Counsel

 

A. Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the day 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.

 

B.  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.

 

C.  Appointment Authority

 

The Local Administrative Judge for the Statutory County Courts is the appointing authorities for misdemeanors and felonies under this plan.

 

6.20 Defendants Appearing without Counsel

 

A. If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement:

            1. 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.

 

            2.  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 attorney had denied the request and, subsequent to the denial, the defendant:

                        a. Has been given a reasonable opportunity to retain and has failed to retain appointed counsel; or

 

                        b. Waived or has waived the opportunity to retain private counsel.

 

            3.  The attorney representing the state may not:

a. Initiate or encourage an attempt to obtain from the defendant a waiver of the right to counsel; or

 

                        b. 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:

                                    i.  Has been given a reasonable opportunity to retain counsel; or

 

                                    ii. Waives or has waived the opportunity to retain private counsel.

 

6.30 Waiver of Right to Counsel

 

A. A defendant may voluntarily and intelligently waive the right to counsel.

 

B. A waiver obtained in violation of Rule 6.20 above is presumed invalid.

 

C. 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 ____________, 20__, by the ____________(name of the 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 the 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)”

 

D.  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.

 

E.    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 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 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/. 

     vi.             Appointment Authority

1.      If no case has been filed in the trial court, the appointing authority for misdemeanors is: ______________

2.      If no case has been filed in the trial court, the appointing authority for felonies is: _______________

3.      If the case has been filed in the trial court, the appointing authority is: _______________.

F.     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.

G.     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.

 

 

Rule 7: Attorney Selection Process for Adults

7.10.    The Van Zandt County Indigent Defense Coordinator will identify which of the appointment lists, discussed in the Rule 5 (attorney qualifications), is most appropriate based on the accusations against the defendant and will inform the Appointing Authority of the next five names 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:

 

A. 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;

 

B. The defendant has an attorney already appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter; including Motions to Revoke or Adjudicate, unless the attorney is not on the list for the type of offense involved in the current case; or

 

C. Other good cause exists for varying from the list.

 

7.20.     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.

 

7.30.     Judicial Removal from Case:

A. 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.

            

B. 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.

 

Rule 8: Fee and Expense Payment Process for Adults

8.10.    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.

 

8.20.     Payment Process:  No payment of attorney’s fees will be made other than in accordance with the rules set forth below.

 

A. An appointed attorney shall fill out and submit a fee voucher to the court for services rendered.  On the day judgment is entered, if no fee voucher has been submitted by appointed counsel, the judge presiding over the case shall enter a flat rate fee.

 

B. 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.

 

8.30.     Payment of Expenses:

A. 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.

 

B. 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.

2.  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.

 

3.  The court shall grant the request for authorization to incur 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.

 

 C.  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.

 

Rule 9: Miscellaneous

 

This plan entitled "Standards and Procedures Related to Appointment of Counsel for Indigent Defendants in Van Zandt County, Texas"  is approved and published as required by law.

 

Approved :

 

_____________________ 

Hon. Joshua Wintters

Administrative Judge

Van Zandt County Court Affidavit of Indigence.docx (9/23/2019 11:24:54 AM) view
Van Zandt County Court Attorney Application for Appointment.docx (9/23/2019 11:25:32 AM) view
Van Zandt County Court Attorney Fee Schedule.doc (1/30/2013 5:55:04 PM) view
Van Zandt County Court Attorney Fee Voucher.pdf (11/22/2023 7:52:15 AM) view
Van Zandt County Court Magistrates Warning Form.doc (11/30/2009 4:48:02 PM) view
Van Zandt County Court Van Zandt County Rights Regarding Representation by Attorney (Counsel).docx (2/7/2019 3:51:10 PM) view