Lamar District Court and County Court Plan
Be it remembered that on this date the below signed District Judges of Lamar County, County Court-at-Law, County Judge of Lamar County, hereby adopt, order, establish and order published these countywide procedures and rules governing fair and timely appointment of counsel for indigent accused adult persons in Lamar County, Texas. This document constitutes the Lamar County Plan in conformity with the requirements of Senate Bill 7 passed by the Texas Legislature and signed into law in 2001, as amended.
I. RESPONSIBILITIES OF LAMAR COUNTY LAW ENFORCEMENT OFFICIALS
It shall be the duty of the Sheriff of Lamar County, the Chiefs of Police of any town or city in Lamar County, and/or any duly sworn or deputized law officers of Lamar County (hereinafter referred to as "Law Officers") to do the following:
(a) Upon making an arrest or upon receiving into custody a person who has been arrested, take the perosn arrested or have him taken without unnecessary delay6, but no later than 48 hours after an adult person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of Lamar County, or, if necessary to provide more expeditiously to the person arrested the warnings described gby Article 15.17 of the Code of Criminal Procedure and enumerated below, before a magistrate in a county bordering Lamar County.
(b) Provide to the magistrate before whom the adult person arrested is taken as required by subsection (a) of this paragraph sufficient information that said magistrate will be able to perform his/herduty pursuant to Article 15.17 C.C.P. This should include, but is not limited to, any offense report and warrant, if any.
II. RESPONSIBILITIES OF LAMAR COUNTY MAGISTRATES
It shall be the duty and responsibility of the magistrate before whom the adult person arrested is taken to inform said person, in clear language, the following:
(a) admonishing the accused of the magistrate and Miranda warnings as provided by law;
(b) notifying of indigent representation rights;
(c) making of record of the magistrate warnings and right to court-appointed counsel for indigent accused persons;
(d) notifying of right to counsel and right to court-appointed counsel if indigent;
(e) inquiring as to whether the defendant is requesting court-appointed counsel; and
(f) providing defendant with an Affidavit of Indigency and reasonable assistance in completing said forms.
(g) If said person does not speak and understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with Articles 38.30 and 38.31 C.C.P., as appropriate. With respect to paragraph II, the magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the person at the same time. Copies of the forms to be used are attached hereto and approved by the District Courts.
(h) 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.
(i). 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.
(j) 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.
It is the duty of said magistrate to ensure that all papers and forms relative to appointment of counsel for the indigent person in felony cases be transmitted to the office of Lamar County District Clerk within 24 hours of the execution of said documents by the indigent person. The magistrate shall then admit the person arrested to bail if allowed by law.
It is the duty of said magistrate to ensure that all papers and forms relative to appointment of counsel for the indigent person in misdemeanors be transmitted to the office of the County Clerk of Lamar County within 24 hours of the execution of said documents by the indigent person. The magistrate shall then admit the person arrested to bail if allowed by law.
Indigence Determination Standards
III. REVIEWS OF REQUESTS FOR APPOINTMENT BY PERSONS ARRESTED
Immediately upon receipt of a request for appointment by a person claiming to be indigent it will be determined by the judge presiding at the proceedings or the Clerk of the Court whether or not the accused is financially unable to retain adequate counsel. An accused is presumed indigent if the accused's net household income does no 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.
An accused who does not meet any of the standard 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:
- the nature of the criminal charges(s);
- anticipated complexity of the defense;
- the estimated cost of obtaining competent private legal representation for the matter(s) charged;
- the amount needed for the support of the accused and the accused's dependents;
- accused's income;
- sourse of income;
- assets and propert owned;
- outstanding obligations;
- necessary expenses;
- the number and ages of dependents; and
- spousal income that is available to the accused.
Factors NOT to be considered in determining indigence:
The resources available to friends or relatives of the accused may not be considered in determining whether the accused is indigent.
In felony cases, unless the appropriate judge decides to make the determination of indigency and appoint counsel as appropriate, the District Clerk or one of his/her deputies shall immediately make a determination of defendant’s indigency and if found indigent shall appoint the next eligible, qualified attorney on the approved list for felony appointments, except for capital murder cases or any other cases in which the District Clerk is of the opinion that the question of indigency and appointment of counsel should be referred to the appropriate judge. In that event the District Clerk shall contact the judge or the court coordinator of the court to which the person arrested shall be assigned with all relevant information concerning said person’s qualifications for appointment.
In misdemeanor cases, unless the appropriate judge decides to make the determination of indigency and appoint counsel as appropriate, the County Clerk or one of his/her deputies shall immediately make a determination of defendant’s indigency and if found indigent shall appoint the next eligible, qualified attorney on the approved list for misdemeanor appointments. The County Clerk may refer any case to the appropriate judge as may be deemed appropriate by the County Clerk.
It shall be the duty of the reviewing judge or Clerk to decide the question of indigency based upon the information provided and the definitions as set forth in this order.
Minimum Attorney Qualifications
III. Minimum Attorney Qualifications for Adults (Small Sized Counties)
A. The Judges hearing criminal cases 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 submit by October 15th each year a statement that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in this county 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 form to the Texas Indigent Defense Commission/form prescribed by the Texas Indigent Defense Commission to the court administration office in the county.
4. 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 court administration office each 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;
5. An attorney must have a minimum 1 year experience in criminal law;
6. An attorney must maintain an office capable of receiving email, fax, and telephone calls;
7. An attorney must have the ability to produce typed motions and orders;
8. An attorney shall notify the court administration office promptly, in writing, of any matter that would disqualify the attorney by law, regulation, rule or under these guidelines from receiving appointments to represent indigent defendants.
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 a minimum 2 year(s) experience in criminal law;
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 a minimum 4 year(s) experience in criminal law;
3. An attorney must have experience as 1st or 2nd chair in at least 3 criminal case(s) tried to verdict before a jury. At least 1 of the trial(s) must have been felonies. The styles and cause numbers of these cases must be listed in the District Courts appointment application form.
iv. Capital Case Qualification Requirements:
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.
B. Approval for Appointment Lists
i. Misdemeanor List – An attorney must be approved by a majority of the Statutory County Court Judges hearing criminal cases.
ii. State Jail and Third Degree Felony, First and Second Degree Felony List, Capital Case List, and Appeal List - An attorney must be approved for each list by a majority of the District Court Judges hearing criminal cases.
C. 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.
D. 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 was removed from the appointment list for not submitting the attorney's annual practice time report may be immediately reinstated upon submission of the report so long as the attorney otherwise meets the other qualifications under this Plan.
iii. 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.
E. Duties of Appointed Counsel - Appointed Counsel shall:
i. Notify the court within 72 hours of the receipt of appointment;
ii. Make every reasonable effort to:
1. Contact the defendant by the end of the first working day after the date on which the attorney is appointed; and
2. Interview the defendant as soon as practicable after the attorney is appointed;
iii. Represent the defendant until:
1. Charges are dismissed;
2. The defendant is acquitted;
3. Appeals are exhausted; or
4. The attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause entered on the record.
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. 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;
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;
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
V.. Prompt Appointment of Counsel
i. Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the third working day after the date on which the appointing authority receives the defendant’s request for court appointed counsel. Working day means Monday through Friday, excluding official state holidays. Counsel must be appointed whether or not a case has been filed in the trial court. Unrepresented defendants will be advised of the right to counsel and the procedures for requesting counsel.
ii. If the defendant is released from custody prior to the appointment of counsel, appointment of counsel is not required until the defendant’s first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.
iii. If an indigent defendant is arrested in another county based on this county’s warrant, counsel will be appointed within three working days of this county’s receipt of the request for counsel.
iv. If a defendant is arrested in this county based on another county’s warrant, counsel will be appointed for the defendant if, on the eleventh day after the arrest, the defendant is still in this county’s custody.
v. If a defendant wishes to request counsel prior to the initial appearance, the forms required to request counsel may be obtained at the Texas Indigent Defense Commission’s website at http://tidc.tamu.edu/public.net/ or from: the Lamar County District Clerk for felonies and the Lamar County Clerk for misdemeanors. The defendant may submit these forms to the Lamar County District Clerk for felnies or the Lamar County Clerk for misdemeanors.
Attorney Selection Process
VI. If the arrested person is found to be indigent, the judge in whose court the case is assigned or the Clerk shall cause to be appointed an attorney from a list promulgated and maintained as set forth in Paragraph IV below.
Appointments from the list of attorneys approved by the judges shall be in the order in which they appear on the list unless otherwise ordered by the judge of the court making said appointment, unless the Court makes a finding of good cause on the record for appointing an attorney out of order.
Fee and Expense Payment Process
VII. Following are the Fee Structure for Adult Criminal Proceedings, to-wit:
A. The following are set as the minimum and maximum allowable fees for appointed Lead Counsel:
1. Proceedings to Dispose of Criminal Penal Charges, Motions to Revoke Probation, Motions to Adjudicate Guilt and Writs of Habeas Corpus:
a. $450.00 for first degree felonies and second degree felonies until trial: $350.00 for third degree felonies and State Jail Felonies until trial.
b. A flat fee of $200.00 will be paid per case for a Class A and/or Class B misdemeanor(s) until trial.
In the event that the case goes to trial, a flat fee of $1,250.00 will be paid per case for a Class A and/or Class B misdemeanor.
The Court will only review one bill for services rendered. The bill is to be submitted within a reasonable amount of time at the conclusion of the case. This includes investigator fees.
It is recommended, but not required, that a motion to retain an investigator be filed with the Court prior to incurring investigator fees. Investigator fees will be reviewed for reasonableness. (See “5. Other b.” below).
c. Motions to Revoke and Motions to Adjudicate shall be presumed to be the same degree or class of felonies and misdemeanors that caused the defendant to be placed on probation.
d. $100.00 to $300.00 for plea bargained dispositions of Writs of Habeas Corpus to be set at the sole discretion of the trial Judge based upon the complexity and seriousness of the criminal charges.
e. $25.00 to $100.00 per hour for trial and preparation time to be determined at the sole and reasonable discretion of the trial judge based upon the complexity and seriousness of the criminal charges and Writs of Habeas Corpus.
f. The rate for the most serious accusation made against the defendant will be paid whether or not the most serious accusation is dismissed before or after either a plea or a trial.
g. Concerning felonies, only one fee will be paid for multiple counts in one indictment but each separate felony contained in a separate indictment or felony information disposed of by plea bargain involving the same defendant will be compensated at the rate of $75.00 each. The County Judge who executes the dismissal documents shall compensate misdemeanors that are included in a felony court plea or agreed dismissal.
In misdemeanors, only one fee will be paid for multiple counts in one information but each separate misdemeanor contained in a separate information disposed of by plea bargain involving the same defendant will be compensated at the rate specified in (b) above with no reduction based on the number of cases a defendant has.
h. The Judge of the trial court shall award trial fees based upon personal knowledge and experience for the preparation and time in court, complexity of the trial and post-trial proceedings.
2. Ad Litem, Parental Termination and Contempt of Court:
a. $100.00 to $300.00 retainer with trial fees ranging from not less than $25.00 per hour up to $75.00 per hour to be determined at the sole discretion of the trial judge based upon the seriousness and complexity of the proceedings.
3. Death Penalty Cases:
a. The lead counsel shall be compensated for all preparation time and all court time at the rate of $50.00 to $125.00 per hour and assistant counsel at the rate of $50.00 to $100.00 per hour. The rate of compensation will be determined solely at the discretion of the trial judge based upon the complexity of the case and the financial necessities of the defense counsel.
b. Counsel will be paid weekly, bi-weekly or monthly based upon counsel’s submission of time records for the period of time for which fees are requested.
a. The trial counsel is required to handle the appointed case through time for giving Notice of Appeal; thereafter an appellate attorney will be appointed from the approved list of attorney on the felony appeal appointment list.
b. By the hour not to exceed $100.00 per hour for the Court of Appeal and to the Court of Criminal Appeals or Texas Supreme Court. The amount shall be determined based upon the complexity and seriousness of the criminal charges.
a. For all other fees for appointed counsel for procedures not mentioned above (as, for example, a writ of mandamus or for reasonable compensation where the attorney is removed in favor of an earlier appointed counsel for representation of a defendant who has multiple cases), the court shall set a fee based upon the complexity and seriousness of the procedure of not less than $25.00 per hour nor more than $100.00 per hour in the sole discretion of the trial judge.
b. Expenses incurred without prior approval shall be reimbursed if expenses are reasonably necessary and reasonably incurred [Art 26.05(d) & 26.052 (h) CCP].
6. Multiple Case Appointments:
a. Attorneys who represent a defendant who has additional cases or motions to revoke or adjudicate shall be appointed in all additional cases against the same defendant. In the event more than one attorney has been appointed in different cases, the court shall appoint the earlier attorney and remove the later attorney from representation of the defendant with reasonable compensation according to time expended as provided above.
B. No payment shall be made until the judge approves payment after submission of attorney fee voucher.
C. If the judge disapproves the requested amount of payment, the judge shall make written findings stating the amount that the judge approves and each reason for approving an amount different from the requested amount.
This Plan shall be administered and maintained by Court Coordinator - 6th Judicial District Court of Lamar County, Texas or such other individual for each court as may be designated by the Judge of said Court. The administrator of the plan is responsible for the following:
A. Gathering the necessary factual information to permit the establishment and operation of the Plan for the appointment and removal of attorneys for the stated purposes of the Plan.
B. Maintaining and updating the records on the attorneys who have been approved and disapproved by the judges for appointments.
C. Investigating attorney qualifications.
D. Having access to the records of the County and District Clerks and the County Auditor of attorney payments and related records.
E. Aiding in the investigation of extraordinary claims for fees.
F. Maintaining the list(s) of attorneys and cases for which they are deemed to be qualified under this Plan.
G. Providing liaison with the office of court administration, the Task force on Indigent Defense and other agencies.
H. Coordinating the reporting requirements for the Plan with the judges and the County and District Clerks.
Lamar District and County Court Affidavit of Indigence.tif (11/9/2009 4:13:35 PM) view
Lamar District and County Court Attorney Application for Appointment.doc (11/9/2009 3:11:28 PM) view
Lamar District and County Court Attorney Fee Schedule.wpd (9/30/2010 11:20:12 AM) view
Lamar District and County Court Attorney Fee Voucher.doc (11/9/2009 3:08:57 PM) view
Lamar District and County Court Magistrates Warning Form.doc (11/9/2009 3:09:37 PM) view