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.

                            iii.             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. 

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. 

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, Texas Code of Criminal Procedure.

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.

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.

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 procedure set forth in Article 17.033, Texas Code of Criminal Procedure.

                            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 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.            If the magistrate is not authorized to appoint counsel and if the accused requests appointment of counsel, the magistrate shall transmit or cause to be transmitted the magistrate form and any other forms requesting appointment of counsel to _________. (the appointing authority) 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.

                          vii.            If the magistrate is authorized to appoint counsel, the magistrate shall make a determination of indigence and appoint counsel if the defendant is indigent within three working days unless the County has a U.S. Census population over 250,000, in which case counsel shall be appointed within one working day.

                        viii.            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.

                            ix.            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

Only attorneys who practice criminal law shall be considered for appointment to represent indigent defendants in the courts of Franklin County on the rotation system established by the Criminal Courts Board.  However, any attorney who resides in Franklin and practices criminal law in the county must apply for application to represent indigent defendants.  The qualified attorneys’ list will be approved by the Criminal Courts Board. Applications for inclusion on the list must be filed with the Coordinator for the 8^th Judicial District Court at least fourteen (14) days prior to receiving criminal appointments.

The qualifications for appointment as qualified counsel are those established by the Criminal Courts Board in a separate document available from the coordinator of the 8^th Judicial District Court.

Attorneys who do not meet the qualifications for appointment may volunteer to serve as Second Chair counsel.  Second Chair counsel may volunteer to assist qualified attorneys in order to gain experience and meet the appointment qualifications.  Second Chair attorneys may perform any task as long as it is done under the supervision of a qualified attorney.  The Courts will make no payment to any Second Chair counsel.

A Capital Qualified List shall be approved by the Criminal Courts Board.   Such applying attorneys must certify in their application that they meet the capital counsel qualifications requirements of the Criminal Courts Board, the First Administrative Judicial Region, and Texas statutes.  Second Chair counsel shall be appointed in capital cases where the State of Texas has filed its Notice of Intent to Seek the Death Penalty and shall be compensated as provided by the Criminal Courts Board.

Appointed attorneys who fail to promptly and professionally follow all of the rules and procedures adopted by the Courts may be removed from the qualified list by majority vote of the Criminal Courts Board and may forfeit all or part of their compensation for services as determined by the judge.  Removed attorneys may reapply for approval after the expiration of one year from the date of removal.  Complaints made against appointed attorneys will be referred to the Criminal Courts Board for investigation.  All complaints will be reviewed periodically and an appointed attorney may be removed from the qualified list by a majority vote of the Criminal Courts Board.  Before any type of removal from the Qualified attorneys list, the attorney must receive written notice and have the opportunity to be heard by the Criminal Courts Board.  Such hearing will be closed and confidential.

COMPENSATION

Court appointed counsel shall receive such reasonable compensation as established by Standing Order of the Criminal Courts Board for Franklin County, Texas. 

The fee schedule adopted by formal action of the Criminal Courts Board for Franklin County, Texas shall comply with the Texas Code of Criminal Procedure Article 26.05 and all applicable law and shall be submitted to the Franklin County Commissioner’s Court.

DEATH PENALTY CASES

Once a capital indictment is returned only a Capital Qualified List attorney approved to provide representation in a capital case will be appointed.  If an attorney from the Qualified list has been representing the defendant pre-indictment and is not qualified on the Capital Qualified List, that attorney must immediately file a Motion to Withdraw and obtain a hearing on said motion.

APPOINTMENTS PLAN AND PROCEDURES

The law enforcement agency having custody must take a defendant before a magistrate not later than forty-eight (48) hours after arrest for a magistrate to hold a probable cause hearing and set bail and inform the accused person of their rights including the right to court appointed counsel if indigent.

The magistrate shall inform the defendant of the right to request appointment of counsel and the procedures for requesting appointment of counsel.

At the Magistrate Probable Cause hearing the responsible judge shall comply with Senate Bill 7 by:

1.      admonishing the accused of the magistrate and Miranda warnings as provided by law;

2.      giving notification of indigent representation rights;

3.      giving the magistrate warnings and right to court appointed counsel for indigent accused persons;

4.      notification of the right to counsel and right to court appointed counsel if indigent;

5.      inquiry as to whether the defendant is requesting court appointed counsel;

6.      providing defendant with an Affidavit of Indigence and reasonable assistance in completing said forms; and to refer immediately to the appropriate designated judge for appointment of counsel within twenty-four (24) hours after request.

If the defendant does not speak and/or understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31.

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. Regarding the appointment of counsel, persons arrested in other counties on local warrants must be appointed counsel in the county that issued the warrant within 3 working days of receipt of the request. Persons arrested on out-of-county warrants must be appointed counsel in the county of arrest if the person has not been transferred or released to the custody of the county issuing the warrant before the 11^th day of the arrest.

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 100% 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 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 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.

QUALIFICATIONS FOR ATTORNEYS TO BE PLACED ON THE PUBLIC APPOINTMENT LIST AND TO BE COURT APPOINTED COUNSEL

Court appointed counsel shall comply with all laws, rules, procedures, and ethical provisions for providing reasonable assistance of counsel to their client.

Court appointed counsel shall maintain a high standard of ethical conduct and always be completely candid with the trial court.

Court appointed counsel shall timely inform their client of matters relating to the preparation, trial, and disposition of the case; appellate and writ rights, deadlines, and procedures for proper processing, and such other matters as necessary to provide reasonable assistance of counsel.

Court appointed counsel shall meet the following standards:

1)      Be a member in good standing with the State Bar of Texas; 

2)      Professionally perform duties and responsibilities of a licensed attorney for the State of Texas; and

3)      Complete at least 6 hours per year of State Bar of Texas-approved continuing legal education in criminal law, criminal procedure, trial practice, or rules of evidence. 

4)  An attorney shall submit by October 15th each year, pursuant to Article 26.04 (j)(4), a statement that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in Hopkins County for adult criminal cases for the prior 12 months that begins on October 1 and ends on September 30.  The report must be submitted either to the Court Coordinator for the 8th Judicial District Court or directly online to the Texas Indigent Defense Commission. If done online to the Texas Indigent Defense Commission, written verification of compliance must be provided to the Court Coordinator for the 8th Judicial District Court.

A court may replace an attorney if the appointed attorney does not make an effort to contact the defendant by the end of the first working day after receiving notice or does not interview the defendant as soon as possible, or may sanction said attorney for violation of those provisions. See, Article 26.04(k) Texas Code of Criminal Procedures.

A majority of the appointing judges trying criminal cases in the county may remove an attorney from consideration for appointments if the attorney intentionally or repeatedly does not fulfill the duties required by law, rules, local rules, or provisions for providing reasonable assistance of counsel or complying with the requirements for inclusion on the public appointment list for counsel for indigent accused persons. Article 26.04 (k) Texas Code of Criminal Procedure.

An indigent defendant is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice requires representation.  Except as otherwise provided by this subsection, if an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have been initiated against the defendant, a court or the courts' designee authorized under C.C.P. Article 26.04 to appoint counsel indigent defendants in the county shall appoint counsel as soon as possible, but not later than the end of the third working day after the date on which the court or the courts' designee receives the defendant's request for appointment of counsel.

A.    Prompt Appointment of Counsel

ATTORNEY SELECTION PROCESS 

1. Misdemeanor and Non-Capital Felony Cases
   1. The appointing authority will appoint the attorney whose name is first on the rotation list of attorneys available for appointment, unless the court makes a finding of good cause on the record for appointing an attorney out of order.
   2. 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.
   3. 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.
2. Capital Felony Cases
   1. The Regional Public Defender for Capital Cases shall be appointed to all capital felony cases unless the court makes a finding of good cause on the record 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, provided they are on the list of qualified attorneys in capital cases.
   2. 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; or
   4. The Office shows other good cause for refusing appointment.
3. 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.

1. 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.
2. 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.

Fee and Expense Payment Process

11/1/2021

The Criminal Courts Board adopts this schedule of fees concerning compensation of court-appointed counsel for indigent defendants and related expenses made pursuant to Article 26.05, Texas Rules of Criminal Procedure; therefore, it is ORDERED that compensation of court-appointed counsel and related expenses, made pursuant to a motion in the format prescribed by the appointing court, shall be as set out below on a case-by-case basis as determined by the judge.  Due to the wide variety of circumstances that may be encountered in cases, total compensation for all pre-trial, trial, post-trial, and appellate court appointed counsel services shall be determined by the judge upon the circumstances and complexity of each case.  The fees set out below may be adjusted as reasonably determined by the judge.

  MISDEMEANOR CASES
   

Non Trial
 Disposition:    $250.00 for plea/revocation/dismissal of a case     

Trial:       $350.00 per day (in trial)

Up to an additional $300.00 for trial preparation at the rate of $50.00 per hour when approved by the trial judge, for either non-trial disposition or disposition by trial.

If more than one case, $50.00 payment for each additional case up to a maximum of $650.00, inclusive of the full fee paid on the first case.

Appeal:    $750.00 for appeal of a case

  FELONY CASES

            Non-trial disposition:

Guilty/No Contest Plea - State Jail               $ 300.00
Guilty/No Contest Plea - Felony 3^rd             $ 350.00

Guilty/No Contest Plea – Felony 2^nd            $ 350.00
Guilty/No Contest Plea – Felony 1^st             $ 400.00

Revocations                                                  $ 300.00

Amendments/Modification                          $ 300.00

Dismissal of Case                                         $ ______**

**(same amount as for a plea to be paid for the corresponding classification of offense )

If more than one case, $50.00 payment for each additional case up to a maximum of $650.00, inclusive of the full fee paid on the first case.

Disposition by trial:

$ 500.00 per day

Up to an additional $500.00 for trial preparation at the rate of $50.00 per hour when approved by the trial judge. The claim must be supported by detailed documentation showing the necessity and reasonableness of the claim.
     

APPEAL         $ 1,250.00      

Up to an additional $500.00 for preparation of the appeal at the rate of $50.00 per hour when approved by the judge.

JUVENILE CASES               Non-trial disposition   $ 300.00     

                                                Trial:       $500.00 per day (in trial) 

Up to an additional $500.00 for preparation of the appeal at the rate of $50.00 per hour when approved by the trial judge, for either non-trial disposition or disposition by trial.

Expenses Incurred Without Prior Court Approval:

Expenses incurred without prior approval shall be reimbursed only if incurred expenses are reasonably necessary.

Appointed counsel may incur investigative or expert expenses without prior approval of the court in an amount not to exceed $250.00 in misdemeanor cases and $500.00 in felony cases.  On presentation of a claim for reimbursement, the court shall order reimbursement to counsel for the expenses, if the incurred expenses are reasonably necessary.  Unreasonable or unnecessary expenses will not be approved.  

DEATH PENALTY - CAPITAL CASE COMPENSATION (for cases not covered by the Regional Public Defender’s Office for Capital Cases)

            Trial:   Lead counsel: $100.00 per hour in trial

Second Chair: $ 75.00 per hour in trial

Lead counsel:  Up to an additional $5,000.00 for trial preparation when approved by the trial judge at the rate of $100.00 per hour.

Second Chair: Up to an additional $3,000.00 for trial preparation when approved by the trial judge at the rate of $75.00 per hour.

Total compensation for lead counsel shall not exceed $30,000.00. Total compensation for second chair shall not exceed $20,000.00.

Non-Trial
Disposition:    Lead counsel:  Up to $4,000.00 for plea/dismissal of a case
                        Second Chair:  Up to $2,000.00 for plea/dismissal of a case

Appeal:    $100.00 per hour for a maximum of $5,000 for appeal of a case            

 REQUEST FOR PAYMENT OF ATTORNEY'S FEES AND EXPENSES

Each attorney shall prepare an approved claim form as soon as practicable after conclusion of the case for payment of services and reimbursement of expenses. If additional funds are requested over and above the stated flat fee for standard services, a detailed statement the trial preparation services rendered must be submitted to the court for consideration. No payment shall be made until the judge approves payment after submission of attorney fee claim.

    If the trial judge disapproves the requested amount, the judge shall make written findings stating the amount of payment approved and the reasons for approving an amount different from the requested amount.  The attorney whose request for payment has been disapproved may, by written motion, file an appeal with the presiding judge of the administrative region.