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 County Court at Law Judge. 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 file.

Procedures and Financial Standards for Determining Whether A Defendant is Indigent

a.  After the Article 15.17 hearing, if the arrested person has informed the magistrate that he/she wants to request court appointed counsel, a Criminal Court Administrator or other Criminal Court designee shall review the arrested person's "Request for Court Appointment of Attorney."

b.  The County Court at Law Judge making appointments of counsel for indigent defendants shall consider the following factors and financial data in determining indigence:

  The defendant's income from any and all sources; The Sources of the defendant's income; Assets of the defendant;Property owned by the defendant, or property in which the defendant has an interest; Outstanding obligations of the defendant; Necessary expenses of the defendant; The number and age of the defendant's legal dependents; Spousal income available to the defendant; and any other reasonable factor(s) the judge finds bears on the financial inability of the defendant to retain counsel.

1.  The County Court at Law Judge making an appointment of counsel for an indigent defendant shall not consider whether the defedant has posted or is capable of posting bail in determining indigency, except to the extend that it reflects the defendant's financial circumstances as measured by the factors listed above.

2.  Based on the financial data given by the arrested person, a determination will be made as to whether the person meets the financial standard for indigence in McLennan County is as follows: The gross income available to the defendant (including that of his spouse or significant other) shall be used to consider whether or not the defendant qualifies for appointment of a court appointed attorney. If the adjusted gross income available is $1250 or more a month that person will not qualify for a court appointed attorney, absent exigent circumstances that the judge deems appropriate for consideration in determining indigency. If the adjusted gross income available is $1250 or less a month that person will be considered  for appointment of a court appointed attorney.

a. A defendant who is determined to be indigent is presumed to remain indigent for the remainder of the proceedings of the case unless a material change in the defendant's financial circumstances occurs. If there is a material change in financial circumstances after a determination of indigency or non-indigency is made, the defendant, the defendant's counsel, or the attorney representing the state may move for reconsideration of the determination.

b. Any written or oral statements elicited from the defendant during this process or evidence derived from the financial data may not be used for any purpose, except to determine the defendant's indigency or to impeach the direct testimony of the defendant.

c. At any time a defendant may request a court appointed attorney, and the County Court at Law Judge who presides over the defendant's case has the discretion to appoint an attorney to that defendant

A.   The Judges hearing criminal cases shall establish attorney appointment lists for the following categories: 1) all misdemeanor cases except jail docket cases (“General appointment list”);  2) jail docket cases (“Jail Docket appointment list”); and, 3) appeals only.  Attorneys may apply for and be placed on multiple lists.  To be eligible for an appointment list, an attorney must satisfy and continue to comply with the requirements of this section.

      1.            Each participating attorney must:

a.             have a signed, current application to receive court appointments on file with the court administrator’s office;

b.            be a licensed attorney and a member in good standing of the State Bar of Texas;

c.             have not received any public disciplinary action by the State Bar of Texas or any other attorney licensing authority of any state or of the United States within the last calendar year;

d.            maintain his/her primary physical office in McLennan County, Texas which is staffed during regular business hours Monday though Friday;

e.             maintain the capability of receiving email, fax, and telephone calls local to McLennan County, Texas;

f.             have the ability to produce typed motions and orders;

g.            be capable of and prepared to personally and, when necessary, physically contact appointed clients in jail or other such facilities; and,

h.            either:

1)      have been licensed by the State Bar of Texas in the past twelve (12) months; or,

2)      have completed a minimum of eight (8) hours of continuing legal education during the calendar year preceding the year the application is submitted; or,

3)      be board certified by the State Bar of Texas in the area of Criminal Law, and in good standing.

2.         All applications will automatically be considered for the General appointment list.  Any attorney seeking to be included on the jail docket appointment list or the appeals only list must specifically request, in writing, to be approved for those lists.

3.         An attorney shall complete a minimum of eight (8) hours of continuing legal education in the field of criminal law and procedure during each calendar year, (January 1 through December 31).  Qualified continuing legal education completed within a twelve (12) month period immediately preceding an attorney’s submission of an application to receive court appointments may be applied to the continuing legal education requirements for the initial year.  Qualified continuing legal education completed during any calendar year in excess of the minimum of eight (8) hours may be applied to the requirement for the immediately following calendar year only.  All participating attorneys must file with the court administration office, on or before January 31 of every year, a certificate of completion of the continuing legal education requirement for the immediately past calendar year, with supporting documentation of the programs attended.  Alternatively, all participating board certified attorneys must, on or before January 31 of every year, file a certificate with the court administration office, supported with appropriate documentation, confirming that the attorney is board certified in criminal law, and in good standing.

4.         A participating attorney must have a minimum one (1) year experience in criminal law.  Any attorney applying to receive court appointments who does not have the requisite experience must be sponsored by at least one McLennan County attorney who practices criminal law and agrees to act as co-counsel with the applicant in at least one criminal jury trial.  No participating attorney who does not have the requisite experience will be allowed to appear in a criminal jury trial as court-appointed counsel without co-counsel approved by the Court.

5.         A participating attorney shall notify the court administration office promptly, in writing, of any matter that would disqualify the attorney by law, regulation, or rule, or under these guidelines, from receiving appointments to represent indigent defendants.

B.        Jail Docket List – Attorneys requesting to be placed on the jail docket list must agree to:

            1.         Personally and promptly confer with the client at the jail;

            2.         Prepare and submit all required plea papers to the Court in a timely manner;

            3.         Be available, personally, for video pleas as scheduled by the Court.

C.        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.

D.        Approval for Appointment Lists - An attorney must be approved by a majority of the Statutory County Court Judges hearing criminal cases.

E.         Removal from Appointment List - The judges will monitor attorney performance on a continuing basis to assure the competency of attorneys on the list. An attorney may be removed or suspended, as appropriate, from one or more appointment lists by a majority vote of the judges.

F.         Reinstatement to Appointment Lists

1.   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 if the attorney otherwise meets the other qualifications under this Plan.

2.   An attorney who has been removed from the appointment list for any other reason and who wishes to be reinstated must apply through the original application process. 

G.     Duties of Appointed Counsel - Appointed Counsel shall:

1.   Acknowledge receipt of the appointment in writing to the court administrator within 72 hours;

 2.  Make every reasonable effort to:

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

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

3.   Represent the defendant until:

a)      The charges are dismissed;

b)      The defendant is acquitted;

c)       Appeals are exhausted; or

d)      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.

4.   Investigate, personally, through the attorney’s qualified staff, 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;

5.   Brief the law of the case and be prepared to present any legal defense(s) that may be reasonably and arguably available to the defendant;

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

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

8.   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;

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

10. 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

11. 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.

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

A.    Prompt Appointment of Counsel

The Indigent Defense Coordinator (IDC) is hereby granted authority under Article 26.04, Texas Code of Criminal Procedure, to perform the duties and to ensure compliance with the requirements set out in that article, and is appointed the “designee” of the Criminal Court Judges, as that term is used therein, subject to the policies and procedures adopted by the Criminal Court Judges.

                                i.            Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel. Working day means Monday through Friday, excluding official state holidays.  Counsel must be appointed whether or not a case has been filed in the trial court.

                              ii.            If the defendant is released from custody prior to the appointment of counsel, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.

                            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.

“I have been advised this ___ day of ____, 2___, by the (name of court) Court of my right to representation by counsel in the case pending against me.  I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge.  Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me.  I hereby waive my right to counsel. (signature of defendant)”

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

A.    The appointing authority will identify which of the appointment lists, discussed in the Section III (attorney qualifications), is most appropriate based on the accusations against the defendant and will appoint the attorney whose name is first on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order. Good cause may include:

                                i.            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;

                              ii.            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

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

B.     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.

C.     Judicial Removal from Case:

                                i.            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.

                              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.

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 a 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 a fee voucher to the court for services rendered within 60 days of the last service provided to the defendant.  Any fee voucher submitted untimely will be denied unless good cause for the delay is shown and supported in the record.

               ii.         The trial judge presiding over the proceedings shall review the request for compensation and either approve or disapprove of the amount requested.

                           1.      If a judge disapproves a request for compensation, the judge shall make written findings, stating the amount of payment that the judge approves and each reason for approving an amount different from the requested amount.

2.      An attorney whose request for payment is disapproved or is not otherwise acted on by the 60^th day after the date the request for payment is submitted may appeal the disapproval or failure to act by filing a motion with the presiding judge of this administrative judicial region.

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 court approval should be obtained before expenses are incurred.

                              ii.            Procedure With Prior Court Approval:

1.      Appointed Counsel may file with the trial court a pretrial ex parte confidential request for advance payment of investigative and expert expenses. The request for expenses must state 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 court shall grant the request for advance payment of expenses in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:

a.       State the reasons for the denial in writing;

b.      Attach the denial to the confidential request; and

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

                            iii.            Procedure Without Prior Court Approval:  Appointed counsel may incur investigative or expert expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred. Unreasonable or unnecessary expenses will not be approved.

McLennan District and County Court Application for Exception to Qualifications to Receive Felony Appointments.pdf (10/28/2013 4:02:04 PM) view
McLennan District and County Court Affidavit of Indigence.pdf (10/28/2013 3:57:26 PM) view
McLennan District and County Court Application for Court Appointment List - CCL.pdf (10/28/2013 4:10:07 PM) view
McLennan District and County Court Application for Court Appointment List- District Courts.pdf (7/28/2022 3:54:45 PM) view
McLennan District and County Court Application for Exception to Qualifications to Receive Felony Appointments.pdf (7/28/2022 3:53:16 PM) view
McLennan District and County Court Approval_of_MAC_plan_of_opration.pdf (1/19/2023 11:37:49 AM) view
McLennan District and County Court Attorney Application for Appointment.pdf (7/28/2022 3:50:17 PM) view
McLennan District and County Court Attorney Fee Schedule.pdf (1/15/2021 12:00:33 PM) view
McLennan District and County Court Attorney Fee Voucher.pdf (8/29/2023 4:54:25 PM) view
McLennan District and County Court Findings of Ineligibility for Court Appointed Counsel.pdf (10/28/2013 4:02:48 PM) view
McLennan District and County Court Findings on Application for Court Appointed Counsel.pdf (10/28/2013 4:03:07 PM) view
McLennan District and County Court Magistrate’s Warning Form.pdf (10/28/2013 3:55:51 PM) view
McLennan District and County Court Managed Assigned Counsel Plan of Operation.pdf (1/19/2023 11:38:01 AM) view
McLennan District and County Court Misdemeanor Fee Schedule.pdf (7/28/2022 3:56:16 PM) view
McLennan District and County Court Supplemental Effective July 1, 2016.PDF (6/24/2016 2:42:50 PM) view
McLennan District and County Court Waiver of Counsel.pdf (10/28/2013 4:01:11 PM) view