Table of Contents

Denton County Courts Plan

MAGISTRATION, BAIL AND REQUEST FOR APPOINTMENT OF COUNSEL

1. DUTIES OF ARRESTING OFFICER

1. Duty to Take Defendant Before Magistrate.The arresting officer, or the person having custody of an arrestee, shall take the person before a magistrate of Denton County without unnecessary delay and in no event later than 48 hours after the person’s arrest (Tex. Code Crim. Proc. arts. 15.17, 17.028).
2. Probable Cause Documentation.Unless the arrest was made pursuant to an arrest warrant, bench warrant, capias, or other lawful order issued by a judge or magistrate, the arresting officer must complete and file all necessary forms establishing probable cause at the time the arrestee is booked into jail for any felony or misdemeanor punishable by incarceration.
3. Release of Defendants Arrested Without a Warrant (Tex. Code Crim. Proc. art. 17.033):
   1. Misdemeanors: A person arrested without a warrant for a misdemeanor must be released not later than the 24th hour after arrest on bond in an amount not to exceed $5,000, or on personal bond if unable to obtain surety, if a magistrate has not determined probable cause
   2. Felonies: A person arrested without a warrant for a felony must be released not later than the 48th hour after arrest on bond in an amount not to exceed $10,000, or on personal bond if unable to obtain surety, if a magistrate has not determined probable cause.
   3. State’s Application for Delay: On application by the attorney representing the State, a magistrate may postpone the release of the defendant for up to 72 hours after arrest if a probable cause determination has not yet been made. The application must state the reasons why probable cause has not been determined.
   4. Medical Exception: If an arrestee taken into custody without a warrant is transported to a hospital or medical facility prior to appearing before a magistrate, the statutory deadlines for release begin to run upon the person’s release from the medical facility (Tex. Code Crim. Proc. art. 17.033(d)).

2. Magistrate Duties

1. Initial Determinations.At the magistrate’s hearing, the magistrate shall determine whether the accused can speak and understand English or is deaf, and shall provide interpretation consistent with Articles 38.30 and 38.31, Texas Code of Criminal Procedure.
2. In-Person or Video Presentation:A defendant may appear before a magistrate or judge of Denton County:
   1. in person or by video or electronic means, so long as the video communication is capable of both audio and video two way communication and capable of recording the proceeding, and,
   2. the appearance before a magistrate meets all requirements set forth by the Texas Code of Criminal Procedure or other relevant statutes related to public access or view.
3. Required Advisements (Tex. Code Crim. Proc. art. 15.17(a)).The magistrate shall inform the accused in clear language of:
   1. the charges and any affidavit filed;
   2. the right to retain counsel;
   3. the right to remain silent;
   4. the right to have an attorney present during any interview with peace officers or prosecutors;
   5. the right to terminate an interview at any time;
   6. the right not to make a statement and that any statement may be used against them; and
   7. the right to an examining trial.
4. Right to Counsel.The magistrate shall:
   1. inform the accused of the right to request appointed counsel if indigent;
   2. explain the procedures for requesting counsel;
   3. inquire whether the accused seeks appointment of counsel; and
   4. provide reasonable assistance in completing any required forms at the same time
5. Processing Requests for Counsel.
   1. A judge of a county court with jurisdiction to hear and try an offense for which a defendant remains in custody may appoint counsel in accordance with Texas Code of Criminal Procedure, Article 1.051, no later than the end of the first working day after the request is received, or direct the Indigent Defense Office to conduct an interview and request the defendant to complete an application for appointment of counsel.
   2. If a defendant appearing before the court in which a matter is pending is no longer in custody, but claims to be indigent at the time of appearance and requests appointment of counsel, the judge may direct the defendant to proceed immediately to the Denton County Indigent Defense Office, located on the 2^nd Floor of the Denton County Courts Building, to make application and participate in an interview with, and provide required information or documents supporting their claim to the Denton County Indigent Defense Counsel Office.
   3. A person charged with a criminal offense alleged to have occurred in Denton County may, at any time prior to, or after the filing of the criminal offense against them by information or indictment, may request appointment of counsel and submit a request and application with the Denton County Indigent Defense Office.Any person claiming to be indigent and unable to secure counsel may request appointment of counsel and shall:
      1. Appear in person at the Indigent Defense Office located on the 2^nd Floor of the Denton Courts Building, 1450 East McKinney, Denton, Texas;
      2. Complete a written Application for Appointment of Counsel;
      3. Participate in an interview with employees assigned by the Denton County Indigent Defense Office;
      4. Provide any documentation or information requested by the Denton County Indigent Defense Office deemed necessary to determine the defendant’s financial status and indigence eligibility; and,
      5. Under oath, truthfully and completely answer any questions set forth in the application.
   4. A magistrate who lacks jurisdiction to hear or try an offense for which the defendant is charged may not appoint counsel, shall inquire as to the defendant’s ability to afford legal counsel at the time of appearance before the magistrate after arrest.The magistrate or their designee shall provide the defendant with a form for Application for Court Appointed Counsel and Financial Affidavit as promulgated by Denton County, and provide the defendant with reasonable assistance in completing the application or request for appointment of counsel.
   5. A magistrate who lacks jurisdiction to hear or try an offense for which the defendant is charged, or their designee shall not later than Twenty-Four (24) hours of the time the request is completed or received from adefendant, forward or cause to be delivered to the Denton County Indigent Defense Counsel Office any application or affidavit for court-appointed attorney and financial affidavit completed by a defendant to the Denton County Indigent Defense Office by:
      1. email at IndigentDefense@DentonCounty.Gov;
      2. email via “RightFax” at IndigentDefense@DentonCounty.Gov; or,
      3. by delivering a completed Application for Court-Appointed Attorney to the Indigent Defense Office located on the 2^nd floor of the Denton County Courts Building, 1450 East McKinney, Denton, Texas.
6. Special Circumstances.
   1. Mental Illness or Intellectual Disability: If credible information indicates the defendant may have a mental illness or intellectual disability, the magistrate shall proceed under Articles 16.22 or 17.032, as appropriate
   2. Out-of-County Warrants: If the defendant is arrested on an out-of-county warrant, the magistrate shall advise the defendant of the right to request counsel, ensure assistance in completing forms, and transmit the request to the appointing authority in the issuing county within 24 hours
7. Probable Cause Review.For warrantless arrests, the magistrate shall make a probable cause determination. If probable cause has not been determined:
   1. for misdemeanors, release must occur within 24 hours on bond not to exceed $5,000;
   2. for felonies, release must occur within 48 hours on bond not to exceed $10,000;
   3. the State may seek a 72-hour extension under Article 17.033
8. Bail Determination.The magistrate shall admit the accused to bail if allowed by law, consistent with Articles 17.028–17.029. Bail must be set using the least restrictive conditions necessary to ensure appearance and protect public safety, and the magistrate must consider the Public Safety Report required by Articles 17.021–17.022
9. Recordkeeping (Tex. Code Crim. Proc. art. 15.17(e)–(f)).The magistrate shall make and preserve a record of:
   1. the date and time of arrest and magistration;
   2. whether the accused was informed of the right to request counsel;
   3. whether the accused requested counsel; and
   4. whether counsel was appointed or the request transmitted.
10. Records. Records may be written, electronic, or audiovisual form, and must be preserved according to statutory timelines.
    1. The magistrate shall make a record that includes:
    2. The date and time the accused was arrested, and the date and time the accused was brought before the magistrate;
    3. Confirmation that the magistrate informed the accused of the right to request the appointment of counsel;
    4. Confirmation that the magistrate asked the accused if the accused was requesting the appointment of counsel; and
    5. Confirmation that the accused requested, or did not request, the appointment of counsel.
11. Out-of-County Warrants.If a person is arrested pursuant to a warrant issued by a county other than Denton County;
    1. the magistrate shall inquire of the accused, if appointed counsel is being requested. 
    2. The magistrate shall record the response, and if counsel is requested, the magistrate shall provide the person with the appropriate forms for requesting counsel and provide reasonable assistance in completing the forms.
    3. The forms shall be transmitted to the appointing authority in the issuing county within 24 hours of the request being made.
    4. If the issuing county has not taken custody of the person before the 11th day following the date of arrest, the magistrate shall release the person on a personal bond and forward the personal bond to the sheriff of the issuing county or the court that issued the warrant.
12. Interpreters
    1. If it appears that an arrested person cannot understand, speak, read, or write the English language, the magistrate shall appoint an interpreter. If the only interpreter available does not have adequate skills to interpret for the accused, the accused may nominate another person to act as an intermediary between the accused and the interpreter. If no intermediary is available, or if no qualified interpreter is available to appear in person, a qualified telephone interpreter may be used.
    2. If it appears that an arrested person is deaf, the magistrate shall appoint a qualified interpreter to interpret the proceedings in any language that the person can understand, including but not limited to sign language. The magistrate may order the testimony of an accused deaf person and the interpretation of that testimony to be administered visually.

STANDARDS AND PROCESS DETERMINING INDIGENCE AND ELIGIBILITY 

1. Definitions,as usedin this rule:
   
   

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:
   1. Take-home wages and salary (gross income earned minus those deductions required by law or as a condition of employment);
   2. Net self-employment income (gross income minus businessexpenses, and those deductions requiredbylaw or as a conditionof operating the business);
   3. Regular payments from a governmental income maintenance program, alimony, child support, public or private pensions, or annuities;
   4. Income from dividends, interest, rents, royalties, or periodic receipts from estates or trusts;
   5. 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" mean 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.
   
   

2. Eligibility for Appointment
   
   

1. An accused may be considered 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 125% 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.
2. 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 privatecounsel will create a substantial hardship, the appointingauthorityshall takeinto 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 matters charged;
   4. 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 numberand ages of dependents;
   11. Spousal income that is available to the accused;
   12. Such other reasonable factors as determined by the judge, and
3. FactorsNOT 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.

3. Indigence Proceedings:
   
   

1. Appointing authority can require the accused to fully respond to questions about the accused's financial status, produce documentation supporting financial information provided, and/or a court official to verify financial information provided.
2. 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
3. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the time lines specified in Parts I and IV of these rules and contained in Code of Criminal Procedure article 1.051.
4. 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:

1. 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 indigencecontained in these rules; or
2. 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.

5. 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.
6. 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.

Prompt Appointment of Counsel

1. Prompt Appointment of Counsel

1. Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the first working day, Monday through Friday, excluding official state holidays, after the date on which the appointing authority receives the defendant’s request for court appointed counsel. Counsel must be appointed whether or not a case has been filed in the trial court.
2. 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.
3. If an indigent defendant is arrested in another county based on this county's warrant, counsel will be appointed within 1 working day of this county's receipt of the request for counsel.
4. 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.
5. 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, http://tidc.tamu.edu/public.net/, or from The Denton County Website, https://www.dentoncounty.gov/1140/Indigent-Defense-Request-for-Court-Appoi
6. The court will rule on all requests for counsel submitted in this manner.

2. Appointment Authority

1. If no case has been filed in the trial court, the appointing authority for misdemeanors is the Denton County Magistrate Court.
2. If the case has been filed in the trial court, the appointing authority is the judge of the court where the case is pending or the Denton County Magistrate Court through the Denton County Office of Indigent Defense.

3. Defendants Appearing without counsel

1. 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 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.

2. 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:

1. Has been given a reasonable opportunity to retain counsel; or
2. Waives or has waived the opportunity to retain private counsel

4. Waiver of the Right to Counsel
   
   

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

1. A waiver obtained in violation of Section C above is presumed invalid.
2. 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.
3. 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 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)"

4. 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.

5. Non-English speaking, or deaf, Defendant(s)
   
   

1. The Court, or the Court's designee, shall make an effort to appoint an attorney capable of communicating in a language the defendant understands.
2. An attorney meeting the language proficiency requirements may be appointed from the language proficiency list.

Attorney Selection Process (Rotation)

1. Misdemeanor List(s)

1. Each Denton County Statutory County Criminal Court will create and maintain its own list containing all the attorneys that meet the qualifications for appointment and that have been approved by a majority of the Denton County Statutory County Court Judges exercising criminal jurisdiction.
2. When an appointment is to be made, the Court or its designee will select an attorney from the individual court list on a rotation basis in a fair, neutral and nondiscriminatory manner taking into account the complexity of the case and the immediacy of the requirement for representation.
3. All attorneys appointed will be notified immediately, but in no event later than twenty-four (24) hours by delivery of the appointment in person, via email or fax.
4. Attorney may request to be suspended from appointment list any time they will not be able to contact the defendant within 24 hours for example: long trials, vacations, medicalleave, etc. by calling the Statutory County Court Administrator at (940) 349-2102 or by e-mail.

2. Appointment(s)
   
   

1. The appointing authority will appoint the attorney whose name is first on the list, unless the court makes a finds good cause for appointing an attorney out of order.

Good Cause may include:

1. An attorney that has previously been appointed to represent an accused/defendant that has a pending misdemeanor case shall also be appointed on any subsequent misdemeanor case(s) of that defendant pending at the same time.
2. An attorney that has previously been appointed to represent an accused/defendant shall be appointed to a current charge/case of the accused/defendant if the Court finds that there are special circumstances unique to the accused/defendant that the appointment of the same attorney would better serve the interests of justice.
3. If an accused/defendant has a pending felony charge/case then the Court or the Court's designee may appoint the attorney that is representing the accused/defendant on the felony charge/case.
4. If the Court or its designee, may determine that because of the facts of the case, or the special needs of the accused/defendant, or the special qualifications of the attorney, the interests of justice would be best served by appointing someone other than the next attorney on the rotating list.

2. Once appointed, an attorney's name will be moved to the bottom of the appointment list.
3. 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.

3. Judicial Removal from Case
   
   

1. The judge presiding over a criminal case may remove appointed counsel upon entering a written order showing good cause for such removal, including but not limited to, 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. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties;
5. The defendant shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the defendant, failure to perform duties of appointed counsel, or failure to maintain professionalism.

2. 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.

SCHEDULE FOR COURT-APPOINTED ATTORNEY'S FEES FOR THE COUNTY COURTS OF DENTON COUNTY, TEXAS

Pursuant to Article 26.05 of the Code of Criminal Procedure, the Statutory County Court Judges of Denton County, Texas exercising jurisdiction in criminal cases have adopted the following schedule for court-appointed attorney’s fees for the Denton County Criminal Courts.

HOURLY RATES

ACTIVITY                                         MINIMUM                 MAXIMUM

MAXIMUM REASONABLE FEES FOR  MISDEMEANOR  CASES

ACTIVITY                                                                            MAXIMUM

Incidental expenses related to research, jail visits, conferences with clients and/or witnesses, mail and copying expenses, driving to/from court or the detention facility, courier fees or any other miscellaneous expense(s) associated with your appointed case will not be paid separately. All expenses, except expert fees or investigation expenses are included in the rates set out above.

Hourly rate fees will not be paid in excess of the maximum reasonable fee schedule, unless good cause is shown, submitted in writing, specifying the justification for a fee in excess of the maximum, and the Court approves based upon the time and labor required and the complexity of the case.