Armstrong and Potter District Court and County Court Plan
Preamble
9/27/2022
The following plan was adopted by the District and County Court at Law Judges having jurisdiction in criminal cases in Armstrong and Potter Counties, for submission in accordance with the requirements of the Texas Fair Defense Act.
Prompt Magistration
9/26/2022

I. Conduct Prompt and Accurate Magistration Proceedings

A.    Arresting Officer Responsibilities

                                i.            The arresting officer, or the person having custody of the arrestee, shall ensure that every arrestee shall be brought before a magistrate without unnecessary delay, but not later than 48 hours after the person is arrested. 

                              ii.            Unless arrested pursuant to an arrest warrant, bench warrant, capias, or other order of a magistrate or judge, necessary forms establishing probable cause must be completed and filed at the time an arrestee is booked into jail for any felony or misdemeanor punishable by incarceration.

                          

B.     Magistrate Duties

                                i.            At the Magistrate’s hearing, the magistrate should determine if accused can speak and understand English, or if the defendant is deaf.

                              ii.            After making such determination, the magistrate shall, in an appropriate manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31, do the following:

1.      Advise the accused of the accusation against him/her and any affidavit filed therewith;

2.      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 an interview at any time;

e.       The right not to make a statement and that any statement made by the accused may be used against him/her; and

f.       The right to an examining trial if charged with a felony.

3.      Inform the accused of the right to appointed counsel if the person cannot afford counsel and the procedures for requesting appointment of counsel.

4.      Inquire as to whether accused is requesting that counsel be appointed.

5.      Provide accused persons requesting appointed counsel with necessary forms for requesting appointment of counsel and ensure that reasonable assistance in completing required forms is provided to the accused at the time of the magistrate’s hearing.

6.      If the magistrate has reason to believe the accused is not mentally competent, the magistrate shall enter a request for counsel on behalf of the accused. Such a request will alert the appointing authority that counsel competent to represent mentally ill persons should be appointed.

                            iii.            In cases where the individual was arrested without an arrest warrant, bench warrant, capias, or other order of magistrate or judge, the magistrate shall determine if there is probable cause to believe the person committed the offense.

1.      If probable cause has not been determined by a magistrate:

a.       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.  If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.

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.  If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.

c.       Pursuant to Article 17.033, Texas Code of Criminal Procedure, a magistrate may, if requested by the State, 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.

                            iv.            The magistrate shall set the amount of bail and any conditions of bond for the accused, if bail is allowed by law and has not been set by the court or magistrate issuing a warrant.

                              v.            The magistrate, or the magistrate's designee, shall record the following:

1.      The date and time the accused was arrested and the date and time when he/she was brought before the magistrate.

2.      Whether the magistrate informed the accused of the right to request appointment of counsel and asked the accused whether he/she wants to request counsel.

3.      Whether the accused requested appointment of counsel

                            vi.  The magistrate shall transmit or cause to be transmitted the magistrate form and any other forms requesting appointment of counsel to the MAC Office. 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 and completes and submits the requisite forms for making the determination of eligibility for appointment of counsel under this Courts Plan.

                        vii.       If a request for counsel was made at magistration, the appointing authority shall forward the magistrate form and any other forms requesting appointment of counsel to the appropriate clerk to be put into the case file.

                            viii.       If a request for counsel was not made at magistration, the magistrate will forward the magistrate form to the clerk to be put into the case file.

                          ix.    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.


Indigence Determination Standards
11/1/2023

Determination of Indigence for Adults-Primary

A.     Eligibility for Appointment

           i.            An accused is presumed indigent if any of the following conditions or factors are present:

1.      At the time of requesting appointed counsel, the accused or accused’s dependents are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing;

2.      The accused’s net household income does not exceed 200% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register; or

3.      The accused is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought.

ii.                     An accused who’s net household income is more than 200% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register, but is less than the Living Wage Calculator as set out by the Massachusetts Institute of Technology, shall be deemed eligible for a court appointed attorney, but must reimburse the county for the actual cost of the attorney as set out in Section B.v.

iii.              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.

iii.            Factors  NOT to be considered in determining indigence:

1.      The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.

2.      The resources available to friends or relatives (not in the household) of the accused may not be considered in determining whether the accused is indigent.

iv.    Only the accused's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.

B.     Indigence Proceedings:

                         i.            The appointing authority can require the accused to respond to questions about the accused’s financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.

                        ii.            Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be used for any purpose other than:

1.      Determining if accused is (or is not) indigent; or

2.      Impeaching direct testimony of accused regarding the accused’s indigence.

                            iii.            A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.

                            iv.            An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused’s financial circumstances occurs.

1.      An accused’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the accused, the accused’s attorney, or the attorney representing the state. The accused’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:

a.       Evidence of a material change in the accused’s financial circumstances, as a result of which the accused does not meet any of the standards for indigence contained in these rules; or

b.      Additional information regarding the accused’s financial circumstances that shows that the accused does not meet any of the standards for indigence contained in these rules.

2.      If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.  

                        v.            If the court or MAC Director 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 related expenses and costs, the court or MAC Director may order the defendant to pay, during the pendency of the charges, the amount that it finds the defendant is able to pay toward those legal services.  The defendant may not be ordered to pay an amount that exceeds:

(1) the actual costs, including any expenses and costs, paid by the county for the legal services provided by an appointed attorney; or

(2) if the defendant was represented by the public defender’s office, the actual amount, including any expenses and costs, that would have otherwise been paid to an appointed attorney had the county not had a public defender’s office.

II. Determination of Indigence for Adults-Primary

A.    Definitions, as used in this rule:

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

                              ii.            “Net household income” means all income of the accused and spousal income actually available to the accused. Such income shall include: take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment); net self-employment income (gross income minus business expenses, and those deductions required by law or as a condition of operating the business); regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities; and income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the accused has no income or lesser income.

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

                            iv.            “The cost of obtaining competent private legal representation” includes the reasonable cost of support services such as investigators and expert witnesses as necessary and appropriate given the nature of the case.              

B.     Eligibility for Appointment

                                i.            An accused is presumed indigent if any of the following conditions or factors are present:

1.      At the time of requesting appointed counsel, the accused or accused’s dependents are eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing;

2.      The accused’s net household income does not exceed 200% of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register; or

3.      The accused is currently serving a sentence in a correctional institution, is currently residing in a public mental health facility, or is subject to a proceeding in which admission or commitment to such a mental health facility is sought.

ii.              An accused who does not meet any of the standards above shall nevertheless be considered indigent if the accused is unable to retain private counsel without substantial hardship to the accused or the accused’s dependents. In considering if obtaining private counsel will create a substantial hardship, the appointing authority shall take into account:

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.

iii.            Factors  NOT to be considered in determining indigence:

1.      The accused’s posting of bail or ability to post bail may not be considered in determining whether the accused is indigent.

2.      The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.

iv.    Only the accused's financial circumstances as measured by the financial standards stated in this rule shall be used as the basis for determining indigence.

C.     Indigence Proceedings:

                                i.            The appointing authority can require the accused to respond to questions about the accused’s financial status, produce documentation supporting financial information provided, and/or order a court official to verify financial information provided.

                              ii.            Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be used for any purpose other than:

1.      Determining if accused is (or is not) indigent; or

2.      Impeaching direct testimony of accused regarding the accused’s indigence.

                            iii.            A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.

                            iv.            An accused determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the accused’s financial circumstances occurs.

1.      An accused’s status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the accused, the accused’s attorney, or the attorney representing the state. The accused’s indigent status will be presumed not to have changed. The presumption can be rebutted in the review proceedings based on the following:

a.       Evidence of a material change in the accused’s financial circumstances, as a result of which the accused does not meet any of the standards for indigence contained in these rules; or

b.      Additional information regarding the accused’s financial circumstances that shows that the accused does not meet any of the standards for indigence contained in these rules.

2.      If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.  

                              v.            If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any related expenses and costs, the court shall order the defendant to pay during the pendency of the charges the amount that it finds the defendant is able to pay toward those legal services.

Minimum Attorney Qualifications
11/1/2023

A.        The Managed Assigned Counsel Office shall establish attorney appointment lists for the following categories of offenses. Attorneys may apply for and be placed on multiple lists. To be eligible for an appointment list, an attorney must meet the following minimum requirements:

i.          Misdemeanor Qualification Requirements:

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

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

3.         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 MAC Office on or before January 31 of each calendar year attesting to completion of the required CLE or submit documentation showing that the attorney is certified as a specialist in criminal law. Continuing legal education activity completed with-in 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 6 hours for such period may be applied to the following period’s requirement. The carryover provision applies to one year only.

4.         An attorney must be licensed to practice law in the State of Texas;

5.         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 1year(s);

6.         An attorney must maintain the capability of receiving email and telephone calls;

7.         An attorney must have the ability to produce typed motions and orders;

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

9.       An attorney must certify to having read and familiarize himself or herself with the State Bar Performance Guidelines for Non-Capital Criminal Defense and adhere to the requirements set out therein. All attorneys on the appointments list must file a certificate with the MAC Office from which he or she receives appointments on or before January 31 of each calendar year attesting compliance with the duties imposed by these Guidelines.

10.      An attorney shall submit by October 15th of each year a statement that describes the percentage attorney's practice time that was dedicated to work based on appointments accepted in these counties for adult criminal cases and juvenile delinquency cases for the prior 12 months that begins on October 1 and ends on September 30.  The report must be submitted through the online portal for the Texas Indigent Defense Commission.

ii.         State Jail and Third Degree Felony Case Qualification Requirements

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

2.         An attorney must have prior experience as either: (1) 1stor 2nd chair in at least 1 felony criminal case tried to a verdict before a jury, or (2) 1st chair in a combination of at least 2 Class A, Class B, or other misdemeanor cases in which incarceration of the accused is a possible sentence under the Texas Penal Code tried to a verdict before a jury. The styles and cause numbers of these cases must accompany the District Courts appointment application form; or,

3.         An attorney is currently serving as counsel on the Criminal Justice Act panel for the Northern District of Texas.

 

iii.        First and Second Degree Felony Case Qualification Requirements

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

2.         An attorney must have 2 years’ experience in criminal law;

3.         An attorney must have experience as 1st or 2nd chair in at least 2 felony case(s) tried to verdict before a jury.  The styles and cause numbers of these cases must be listed in the District Courts appointment application form; or,

4.         An attorney is currently serving as counsel on the Criminal Justice Act panel for the Northern District of Texas.  

iv.        Capital Case Qualification Requirements (for Death Penalty cases only):

1.         Lead trial counsel must be on the list of attorneys approved by the local selection committee of this Administrative Judicial Region for appointment as lead counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

2.         Second chair counsel must be on the list of attorneys approved by the local selection committee of this administrative judicial region for appointment as lead trial counsel or second chair counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

3.         Appellate counsel must be on the list of attorneys approved by the local selection committee of this administrative judicial region for appointment as appellate counsel in death penalty cases, as provided in Article 26.052, Texas Code of Criminal Procedure.

v.         Appeal Qualification Requirements - An attorney must meet at least one of the following criteria:

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

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

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

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

vi.      Mentally Ill/Intellectually Disabled Defendants – Mental Health Panel Attorneys Requirements –

  1. In addition to the qualifications for each level of misdemeanor or felony set forth above, the appointing authority may give preference to an attorney who has been approved by a majority of the judges hearing criminal cases in the county for the Mental Health Panel.
  2. To qualify for the Mental Health Panel, each attorney must, in addition to the CLE requirements above, complete at least eight (8) hours of CLE specifically focused on mental health issues.
  3. At the discretion of the appointing authority, an attorney who has been approved for the Mental Health Panel, may be appointed for a limited purpose, including but not limited to, magistrations and bond hearings.

B.        Approval for Appointment Lists

i.          Misdemeanor List – An attorney must be approved by the MAC Director.

ii.         For the State Jail & Third Degree Felony List, the First & Second Degree Felony List, the Capital Case List, and the Appeal List - An attorney must be approved for each list by the MAC Director.

C.        Removal from Appointment List – The judges and the MAC Director will monitor attorney performance on a continuing basis to assure the competency of attorneys on the list. An attorney may be removed from a case, as appropriate, by the judge presiding over that case, or by the Director of the MAC Office.  An attorney may be removed or suspended, as appropriate, from one or more appointment lists by the Director of the MAC Office.

D.        An attorney on the appointment list may request that his or her appointments be paused or limited in number if his or her circumstances would limit his or her ability to competently represent new cases for a limited period of time.  Upon notification that the attorney is ready to resume full appointments, that attorney shall return to the normal wheel.

E.         Reinstatement to Appointment Lists

i.          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.

ii.         An attorney who has asked to be removed from appointment lists on a temporary basis may be reinstated upon request to the MAC Office.

 ii.         An attorney who has been removed from the appointment list for any other reason and who wishes to be reinstated must make a request to the MAC Office.

F.         Duties of Appointed Counsel - Appointed Counsel includes the PD and shall:

i.          Notify the court and the MAC Office within 72 hours of the receipt of appointment;

ii.         Make every reasonable effort to:

1.         Contact the defendant by telephone, letter or electronic communication by the end of the first working day after the date on which the attorney is appointed; and

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

First contact and first interview date must be reported to the MAC upon completion of the case.

iii.        Represent the defendant until:

1.         Charges are dismissed;

2.         The defendant is acquitted;

3.         Appeals are exhausted or separate appellate counsel is appointed; 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.

iv.        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;

v.         Research and consider the law that may be relevant to the case and be prepared to present any legal defense(s) that may be reasonably and arguably available to the defendant;

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

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

viii.      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 unless separate appellate counsel has been retained or appointed for that purpose;

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

x.         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

xi.        Perform the attorney’s duty owed to the defendant in accordance with these procedures, the requirements of the Code of Criminal Procedure, and applicable rules of ethics.

xii.       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.

Prompt Appointment of Counsel
9/26/2022

IV. Appoint Counsel Promptly for Adults

A.    Prompt Appointment of Counsel

                  i.     Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel, including the requisite completed forms for making the determination of eligibility for appointment of counsel under this Courts Plan.  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. Per Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008) and article 1.051(j) of the Code of Criminal Procedure, counsel will be appointed within three working days of request, whether the defendant is incarcerated or has been released on bond. 

       ii.     Notwithstanding subsection (i) above, if the defendant is released from custody prior to completing and submitting the forms necessary for determining eligibility for the appointment of counsel under this Courts Plan, 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.       At the time of magistration the defendant shall be informed that he or she may obtain the necessary forms to request the appointment of counsel from the jail at any time prior to their initial appearance. These forms may also be obtained at the Texas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/, from the MAC Office, or from the court coordinator of the court in which the case is pending.  The defendant may submit these forms to the Courts through the jail in the county in which his or her charges are pending or directly to the MAC Office or the court coordinator of the court in which the case is pending.  The MAC Office will determine eligibility on all requests for counsel submitted in this manner.  

vi.            Appointment Authority

The appointing authority for all adult criminal cases, whether the case is filed or not is the MAC Office.

B.     Defendants Appearing Without Counsel - If a defendant appears without counsel in any adversary judicial proceeding that may result in punishment by confinement:

      i.            The court may not direct or encourage the defendant to communicate with the attorney representing the state until the court advises the defendant of the right to counsel and the procedure for requesting appointed counsel and the defendant has been given a reasonable opportunity to request appointed counsel.

      ii.            If the defendant has requested appointed counsel, the court may not direct or encourage the defendant to communicate with the attorney representing the state unless the appointing authority has denied the request and, subsequent to the denial, the defendant:

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

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

                        iii.            The attorney representing the state may not:

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

2.      Communicate with a defendant who has requested the appointment of counsel, unless the appointing authority has denied the request and subsequent to the denial, the defendant:

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

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

C.     Waiver of the Right to Counsel

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

   ii.            A waiver obtained in violation of section IV.B above is presumed invalid.

   iii.            If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation.  If the court determines that the waiver is voluntarily and intelligently waived, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings.

“ The Court has advised me that I have a right to be represented by an attorney. The Court has advised me that if I cannot afford to hire an attorney, the Court will appoint an attorney to represent me. The Court has advised me of the dangers and disadvantages of representing myself.  Knowing all of the above, I freely and voluntarily waive my right to be represented by an attorney.  This Waiver of Counsel is not permanent.  I may reassert my right to counsel at any time before my case is disposed of.  The Court has advised me of the above rights prior to me speaking with a prosecutor for the State of Texas."       

iv.            A defendant may withdraw a waiver of the right to counsel at any time but is not entitled to repeat a proceeding previously held or waived solely on the grounds of the subsequent appointment or retention of counsel.  If the defendant withdraws a waiver, the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.

Attorney Selection Process
11/1/2023

V. Attorney Selection Process for Adults (Rotation)

  1. Felony Cases:

 i. The Panhandle Area Public Defender shall be appointed to all felony cases unless good cause exists to appoint private counsel.  If there is an accompanying misdemeanor, the Panhandle Area Public Defender shall be appointed to those cases as well.  Alternatively, the Managed Assigned Counsel Director, in his/her discretion may appoint MAC Office fellowship attorneys in accordance with the standards set out in this plan.

 ii.  If a co-defendant requests appointment of counsel and is determined to be indigent, the Managed Assigned Counsel Office shall appoint a contract attorney pursuant to the standards and procedures stated in this Plan.

             iii. The Panhandle Area Public Defender may refuse to accept appointment to a case if:

                             1. A conflict of interest exists;

                             2. The Office has insufficient resources to provide adequate representation;

                             3. The Office is incapable of providing representation in accordance with the rules of professional conduct;

                             4. Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or

                             5. The Office shows other good cause for refusing appointment.

               iv. If the Panhandle Area Public Defender cannot be appointed under this section, the Managed Assigned Counsel Office shall seek to appoint a contract attorney from the list of attorneys approved as set out below.

B.    Misdemeanor Cases

i.  Contract Attorneys shall be appointed to all misdemeanor cases unless good cause exists to appoint the Public Defender.  If there is a misdemeanor case accompanying a felony assigned to the PD, the Panhandle Area Public Defender shall be appointed to those cases.  Alternatively, the Managed Assigned Counsel Director, in his/her discretion may appoint MAC Office fellowship attorneys in accordance with the standards set out in this plan.

ii.  The MAC Office will appoint an attorney from among the next five names on the misdemeanor appointment list, unless the court or MAC director makes a finding of good cause on the record for appointing an attorney out of order. Good cause may include:

  1. 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;
  2. The defendant has an attorney already appointed on a prior pending or concluded matter. The same attorney will be appointed to the new matter, unless the attorney is not on the list for the type of offense involved in the current case; or
  3. Other good cause exists for varying from the list.

 

 

C. Capital Felony Cases Wherein the Death Penalty is Being Sought.

                    i. The Regional Public Defender for Capital Cases wherein the death penalty is being sought shall be appointed to all capital felony cases unless good cause exists to appoint private counsel.

                             1. If a co-defendant requests appointment of counsel and is determined to be indigent, the Appointing Authority shall appoint counsel pursuant to the standards and procedures stated in this Section.

                             2. If private counsel is appointed to a co-defendant, rather the Regional Public Defender for Capital Cases, co-counsel will be appointed using the standards and procedures stated in this Section.

                    ii. The Regional Public Defender for Capital Cases may refuse to accept appointment to a case if:

                             1. A conflict of interest exists;

                             2. The Office has insufficient resources to provide adequate representation;

                             3. The Office is incapable of providing representation in accordance with the rules of professional conduct;

                             4. Acceptance of the appointment would violate the maximum allowable caseloads established for the office; or

                             5. The Office shows other good cause for refusing appointment.

                    iii. If the Regional Public Defender for Capital Cases cannot be appointed under this section and no attorney has been qualified to represent the defendant under Section III A (iv) of this Plan, the Appointing Authority shall seek to appoint counsel from the list of attorneys approved by the local selection committee of an adjacent Judicial Region for appointment as lead counsel in death penalty cases.  If Regional Public Defender for Capital Cases cannot be appointed under this section and no attorney has been qualified to represent the defendant under Section III A (iv) of this Plan, the Appointing Authority shall seek to appoint counsel from the list of attorneys approved by the local selection committee of an adjacent Judicial Region for appointment as lead counsel in death penalty cases.

                    iv. The Appointing Authority shall immediately contact the attorneys appointed by phone, fax, e-mail or in person and notify the attorneys of the appointment and the last known location of the defendant.

C.       Removal from Case:

                                i.       The judge presiding over a criminal case, or the MAC Director, may remove appointed counsel upon entering a written order showing good cause for such removal, including without limitation, the following:

1.      Counsel’s failure to appear at a court hearing;

2.      Counsel’s failure to comply with the requirements imposed upon counsel by this plan;

3.      Current information about the defendant and the charges against the defendant indicate that another qualified attorney is more appropriate for the defendant under these rules;

4.      Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;

5.      The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;

6.      The defendant requests an attorney, other than trial counsel, for appeal; or

7.      The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant.

                              ii.            Appointment of Replacement Counsel - Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan. 

                   iii.   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.

 




Fee and Expense Payment Process
3/6/2024

VI. Fee and Expense Payment Process for Adults

A.    Court appointed counsel shall be compensated for all reasonable and appropriate services rendered in representing the accused. Compensation shall be reasonable for time and effort expended and will be in accordance with the Attorney Fee and Expense Payment Process for Adult Defendant Appointments fee schedule adopted and approved by a majority of the judges hearing criminal cases in the county.

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

                                i.            An appointed attorney shall fill out and submit either a Flat Fee Attorney Voucher or an Hourly Attorney Fee Voucher to the MAC Office for services rendered.

                              ii.            The MAC Director shall review the request for compensation and either approve or disapprove of the amount requested.

1.      If the MAC Director disapproves a request for compensation, the MAC Director shall make written findings, stating the amount of payment that the MAC Director 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 judge in whose court the case if filed.  If the attorney continues to disagree with the judge’s finding, the attorney may appeal that ruling by filing a motion with the presiding judge of this administrative judicial region.

C.     Payment of Expenses:

                                i.            Court appointed counsel will be reimbursed for reasonable and necessary expenses incurred, including expenses for investigation and for mental health and other experts. Expenses incurred with and without prior approval shall be paid according to the procedures set forth below. Whenever possible prior approval should be obtained before expenses are incurred.

                              ii.            Procedure with MAC Approval:

1.      Appointed Counsel may file with the MAC Office a pretrial ex parte confidential request for advance payment of investigative and expert expenses. The request for expenses must state the below, as applicable:

a.       The type of investigation to be conducted or the type of expert to be retained;

b.      Specific facts that suggest the investigation will result in admissible evidence or that the services of an expert are reasonably necessary to assist in the preparation of a potential defense; and

c.       An itemized list of anticipated expenses for each investigation and/or each expert.

2.      The MAC Director shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the MAC Director denies in whole or in part the request for expenses, the MAC Director shall:

a.       State the reasons for the denial in writing;

b.      Attach the denial to the confidential request; and

c.       Submit the request and denial as a sealed exhibit to the record.

                            iii.            Procedure Without Prior MAC Approval:  Appointed counsel may incur investigative or expert expenses without prior approval of the MAC Office. On presentation of a claim for reimbursement, the MAC Director 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.

                        iv. Investigators compensated under this plan will be compensated $60 per hour only for the services listed in schedule A for amounts based on schedule B below. Any deviation from the amounts allowed per activity or the total amount approved must be approved in writing by the judge of the court prior to accruing any expenses. The initial and subsequent requests must state an amount requested for the services expected to be rendered.

Schedule A

                        Compensable activities for investigators appointed by the court(subject to limits in schedule b)

1.       Identifying crime or wrongs done or threatened against a person, state, or the United States;

2.       Securing the identity, habits, business, occupation, knowledge, efficiency, loyalty, movement, location, affiliations, associations, transactions, acts, reputation, or character of a person.

3.       Identifying the location, disposition, or recovery of lost or stolen property.

4.       Identifying the cause or responsibility for a fire, libel, loss, accident, damage, or injury to a person or to property.

5.       Securing evidence.

6.       Tracking of the location of an individual or motor vehicle.

Schedule B

                        The activities in schedule A are subject to the following limits

1.       Reviewing file and or initial consultation with attorney. Maximum of 2 hours billed in 0.10 increments

2.       Interview of witness(es) billable at 0.10 increments not to exceed the maximum approved rate when included with other billed activities

3.       Search of databases not generally available to the public or district and county clerk files (0.5 per individual searched)

4.       Photography/videography of a scene or evidence 0.5 hours

5.       Interview with the defendant 1 hour max billable in 0.1 increments.

6.       Communication with attorney other than initial consultation or summation report at completion of activity. 0.1.
Miscellaneous
11/1/2023

Definitions

09/15/2022

 

  1. “Indigent” means a person who is not financially able to employ counsel.
  2. “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.
  3. “Household” means all individuals who are actually dependent on the accused for financial support.
  4. “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.
  5. “MAC” means the Panhandle Area Managed Assigned Counsel Office.
  6. “PD” means the Panhandle Area Public Defenders
  7. “Contract Attorney” means an attorney who has qualified and contracted with the MAC to be on the Court Appointed Attorney wheel.
  8. “Fellowship Attorney” means an attorney employed by the MAC through the MAC fellowship program.     
  9. “Appointed Attorney” includes Contract Attorneys, Chief Public Defender, Assistant Public Defenders, and Fellowship Attorneys.   
Plan Documents
Armstrong Potter District and County Court 2011 Request for Court Appointed Attorney (Potter).doc (9/12/2011 3:11:05 PM) view
Armstrong Potter District and County Court Affidavit of Indigence.doc (10/23/2015 11:24:48 AM) view
Armstrong Potter District and County Court Amended Attorney Compliance Certification for Criminal Appointments.docx (3/18/2014 5:24:36 PM) view
Armstrong Potter District and County Court Appointment of Counsel for Out-of-County Warrant.pdf (10/4/2017 3:01:50 PM) view
Armstrong Potter District and County Court Attorney Application for Appointment.docx (12/31/2013 10:54:09 AM) view
Armstrong Potter District and County Court Attorney Compliance Certification for Criminal Appointments.docx (6/6/2013 1:09:42 PM) view
Armstrong Potter District and County Court Attorney Fee Schedule.docx (11/7/2024 10:50:18 AM) view
Armstrong Potter District and County Court Attorney Fee Voucher.docx (12/28/2021 4:33:36 PM) view
Armstrong Potter District and County Court Magistrate’s Warning Form.docx (11/1/2013 11:51:34 AM) view
Armstrong Potter District and County Court Managed Assigned Counsel Plan of Operation.docx (11/28/2022 11:52:57 AM) view
Armstrong Potter District and County Court Public Defender Plan or Proposal.pdf (11/22/2022 11:59:46 AM) view
Armstrong Potter District and County Court Waiver of Counsel.docx (12/28/2021 4:21:08 PM) view