TENTH REVISED INDIGENT DEFENSE COUNTYWIDE PLAN FOR

APPOINTMENT OF COUNSEL FOR INDIGENTS ACCUSED

OF FELONY OFFENSES IN ELLIS COUNTY, TEXAS

 

Effective November 1, 2021

 

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I.  Preamble

The Judge of the 443rd Judicial District Court of Ellis County, Texas, hereby adopts, orders, establishes, and publishes these county wide procedures, rules, and orders for the timely and fair appointment of counsel for indigent persons accused of felony offenses in Ellis County, Texas.  By Local Administrative Rule, all felony cases in Ellis County, Texas are filed and litigated in the 443rd District Court.  This Plan conforms to the requirements of Article 26.04 Tex. Code Crim. Proc. and is hereinafter herein referred to as the "Plan".  The forms required by the Plan are herewith provided in the Plan Documents section of the Plan.

During Ellis County’s budgetary process for the 2018-2019 fiscal year, the Commissioners Court approved the creation of an Ellis County Indigent Defense Coordinator position, referred to within the Plan as the "Indigent Defense Coordinator".  This was partly accomplished with a grant from the Texas Indigent Defense Commission. During Ellis County’s 2019-2020 fiscal year, the Commissioners Court continued to authorize the position and established a separate departmental line item budget.  In addition, the Ellis County Indigent Defense Committee (referred to within the Plan as the "Indigent Defense Committee") was formed by those Judges of the courts of record in Ellis County who regularly handle felony, misdemeanor, and/or juvenile cases.  The purpose of the Indigent Defense Committee was/is to provide general guidelines by which the Indigent Defense Coordinator would be hired, compensated, managed, monitored, and reviewed.

By this Plan, the District Judges referenced in Paragraph-1 above hereby fully assign the Indigent Defense Coordinator with the responsibility to serve, under the supervision of the Indigent Defense Committee and the individual Judges, as a primary authorized appointing authority for indigent counsel in Ellis County, whose duties shall include:  (i) review all requests for court appointed counsel; (ii) appoint attorneys in a fair, neutral, and nondiscriminatory manner; (iii) notify attorneys of appointments; (iv) notify defendants of their appointment or determination of ineligibility for court appointed counsel; (v) maintain attorney appointment lists and supporting records; (vi) develop and implement systems/procedures related to core functions; (vii) serve as the chief liaison with the Texas Indigent Defense Commission; (viii) perform key liaison functions in Ellis County between the judges, court coordinators, attorneys, jail administrators, county judge, county commissioners court, and county auditor; and (ix) perform additional duties as requested by the individual Judges or as designated by the Ellis County Indigent Defense Committee.

 

 A.     Responsibilities of Arresting Officers or Custodial Personnel

 

After arrest, the arresting officer or custodial personnel are responsible for ensuring that a person arrested has been or is taken before a magistrate without unnecessary delay, but in no event later than 48 hours after arrest.

The arresting officer, when taking an accused before a magistrate or booking an accused into an Ellis County detention facility, shall present, at a minimum, to the magistrate or Ellis County detention facility a Probable Cause Affidavit and a criminal history of the accused.  An Ellis County detention facility, when taking the accused before a magistrate shall present, at a minimum, to the magistrate a Probable Cause Affidavit and a criminal history of the accused.

The arresting officer must appear, if requested by the magistrate, at the magistrate's probable cause hearing.

B.  Responsibilities of Magistrates

At the magistrate hearing the magistrate shall:

1.         Administer the magistrate warnings to the accused in compliance with Article 15.17 Tex. Code Crim. Proc.;

2.         Make a probable cause determination, unless the accused was arrested pursuant to an arrest warrant, bench warrant, capias, or other order of a magistrate or judge;

3.         Inquire as to whether the accused wishes to request appointed counsel in compliance with Article 26.04 Tex. Code Crim. Proc.;

4.         Make a record of the magistrate warnings and the right to court appointed counsel for indigent accused persons with the form furnished with this Plan; and

5.       If the accused requests court appointed counsel, then provide the accused with the Affidavit of Indigence form or the Application for Court Appointed Attorney, and reasonable assistance in completing said form/application; and if the accused does not speak and/or understand the English language or is deaf, then the magistrate shall inform and assist the accused in a manner consistent with Article 38.30 Tex. Code Crim. Proc.

6.        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 in compliance with Article 15.18(a-1) Tex. Code Crim. Proc.

If the accused is charged with a felony and has requested court appointed counsel, then the magistrate shall furnish the accused with the Instruction Regarding Court Appointed Attorney form and shall immediately transmit or cause to be transmitted to the Indigent Defense Coordinator, without unnecessary delay, but not later than 24 hours after the person arrested requests appointment of counsel, a copy of the form recording the magistrate warnings and the right to court appointed counsel for indigent accused persons, and the Affidavit of Indigence form requesting appointment of counsel or the Application for Court Appointed Counsel.  The Indigent Defense Coordinator will maintain the forms until transmitted to the Court Clerk for filing.

If the accused is charged with a felony and has not requested court appointed counsel or has declined court appointed counsel, then the magistrate shall immediately transmit or cause to be transmitted to the Indigent DefeCoordinator andrand, without unnecessary delay, but not later than 24 hours after the person arrested has declined appointment of counsel, a copy of the form recording the magistrate warnings and the right to court appointed counsel for indigent accused persons indicating that the accused has not requested court appointed counsel.  The Indigent Defense Coordinator will maintain the forms until transmitted to the Court Clerk for filing.

In addition to the duties required of all magistrates by this section, The Justices of the Peace of Ellis County, Texas shall establish a rotating plan to ensure the availability of a magistrate each and every day for the purpose of performing the magistrate hearing required by the Plan and the Texas Code of Criminal Procedure.

A.     Standards for Determining Indigent Status

The Court shall consider the financial inability of an accused to retain counsel in compliance with Article 26.04(l)-(r) of theTexas Code of Criminal Procedure and the following standards for determining indigence:

1.         Income of accused from any and all sources;

2.         Assets of the accused;

3.         Obligations, debts, and expenses of the accused;

4.         Number and ages of dependents and support required;

5.         Cost of defense of the criminal charge; and

6.         Other reasonable factors that may be ascertained by the Judge and/or the Indigent Defense Coordinator.

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 the 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.

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. 

As mandated by law, the Court shall not consider whether the accused has posted bail, except to the extent it reflects on the financial resources of the accused and the Court shall not consider the resources available to friends and relatives of the accused.

If the Court determines that an accused has financial resources that enable the accused to offset in part or in whole the costs of the legal services provided, including expenses and costs, the Court shall order the accused to pay during the pendency of the charges or, if convicted, as court costs the amount that the Court finds the accused is able to pay.

 A.    Attorneys Eligible for Non-Death Penalty Felony Appointments

The Judge 443rd District Court shall approve a list of attorneys to serve as court appointed counsel for all felony criminal cases prosecuted in Ellis County, Texas.  The Courts may update the appointment list from time to time as applicants may be approved, or as attorneys on the appointment list may be removed, or as the Courts may deem necessary or prudent.  Attorneys desiring to be considered for inclusion on the appointment list are required to complete and submit the application form provided for by this Plan.  Completed applications will be accepted each year during the month of December, and all newly approved applicants will be added to the appointment list during the month of January.  At all times the Courts retain full discretion in deciding whether or not to expand the appointment list.  A current appointment list shall be posted outside of the District Clerk's office and shall be available to the public.

Any determination to revise the appointment list or amend the Plan is within the discretion of the Courts.  The determination to place or not place an attorney on the appointment list, or when to place an attorney on the appointment list, or to remove an attorney from the appointment list, based on the criteria in the Plan, is within the discretion of the Courts.  There is no appeal from these determinations.

In addition to meeting the minimum eligibility requirements, it is explicit and implicit in the Plan that the appointment list will be comprised of attorneys who have demonstrated and continue to demonstrate competence by subjective as well as objective standards.  All approved attorneys must be determined qualified and competent to represent persons accused of any grade of non-death penalty felony offense from the date of appointment through appeal.  The Courts will not make specialty appointments except as required by the circumstances.

B.  Eligibility Requirements

Subject to the limitations set forth in this Plan, licensed attorneys will be considered for placement on the trial appointment list upon submission of a completed application form provided with this Plan.  Applicants for placement on the court appointed list must have the following qualifications:

1.         Licensed by the Supreme Court of Texas for at least two years and in good standing with the State Bar of Texas.

2.         Have tried to verdict at least five criminal jury trials (other than Class C misdemeanors) as lead counsel, three of which are required to be felony jury trials.  Attorneys currently on the appointment list as of January 30, 2009 are qualified under the criteria in effect at the time of appointment.

3.         Demonstrate that the applicant is maintaining a law office in Ellis County, Texas which is suitable for receiving the public, holding confidential meetings with clients and witnesses, and whose office appearance is appropriate for conducting legal business in the professional manner expected by the public.  The attorney's office must be staffed by at least one person who can be contacted at that office address and phone number during business hours in the attorney's absence.

4.         Maintain a telephone and computer e-mail address in the law office, and a published business telephone number that is answered 24 hours a day, 7 days a week.  Utilization of voice mail or an answering machine is appropriate for reception of phone calls during non-office hours.  Applicant must also demonstrate that his/her name, attorney designation, and law office telephone number is listed in the local telephone directory and/or is readily obtainable on applicant’s legal website.

5.         Demonstrate that applicant has actively engaged in the practice of law for at least two years; and that in the year immediately preceding application applicant has made numerous and regular court appearances in criminal cases in Ellis County, Texas.

6.         Demonstrate competence to represent persons accused of non-death penalty felony offenses from arrest through appeal.

7.         Demonstrate the ability to provide professional representation in an average amount of time commensurate with the average ability of experienced criminal law attorneys for similar cases with similar circumstances.

8.       Maintain the preceding eligibility requirements after being placed on the trial appointment list, including compliance with the minimum continuing legal education requirements and compliance with the attorney reporting requirements, which are set forth herein-below.     

            Additionally, in order to maintain eligibility on the appointment list, each year during the month of October, court appointed trial counsel shall pay to the Ellis County District Attorney’s Office (“DA’s Office”) a reasonable discovery fee of $200, which constitutes counsel’s payment in full for an entire year’s worth of all costs and expenses associated with the DA’s Office production of hard copies and/or electronic copies of all documents, records, reports, statements, various forensic data, audio recordings, video recordings, and other items produced in connection with all felony criminal cases handled by counsel in Ellis County, Texas at any time during the entire year. 

More than one attorney from a single firm may seek placement on the list, but the Judge may limit the total number of attorneys from a single firm. The appointed attorney will be responsible for the case and perform the work related to the case.   

           

C.  Minimum Continuing Legal Education Requirements

1.         Minimum of Six Hours Continuing Legal Education (“CLE”):

a.         Each attorney on the appointment list shall complete a minimum of six hours of CLE pertaining to criminal law during each 12 month reporting period.  CLE includes only those activities for which either the State Bar of Texas or the College of the State Bar of Texas issue CLE credit.  Alternatively, this six hour CLE requirement may be satisfied by maintaining a specialization in criminal law through the Texas Board of Legal Specialization.

2.         Reporting Period:

a.        The reporting period shall run from the December 1^st of each year through November 30^th of the following year, with an affidavit (see below) being due on or before December 15^th following the end of each reporting period.

b.         Continuing legal education activity completed within a one-year period immediately preceding an attorney's initial reporting period may be used to meet the educational requirements for the initial year.

c.         Continuing legal education activity completed during any reporting period in excess of the minimum six hour requirement for such period may be applied to the following period's requirement.  The carryover provision applies for the next year only.

d.         To be included on the appointment list, on or before December 15^th of each year, each attorney must submit an affidavit to the Court detailing the continuing legal education activities completed durinimmediatelyve months immediatly preceding submission of the application.  Alternatively, an attorney may annually submit documentation showing the attorney is currently certified as a specialist in criminal law through the Texas Board of Legal Specialization.

D.  Attorney Reporting Requirements

An attorney shall submit by October 15^th 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 online to the Texas Indigent Defense Commission.

E.  Responsibilities of Court Appointed Counsel

Court appointed counsel shall make every reasonable effort to contact the accused not later than the end of the first working day after appointment and to interview the accused as soon as practicable.

Court appointed counsel shall insure that the accused has a copy of the Accused's Instructions Regarding Court-Appointed Attorney and shall explain the requirements of same to the accused.

An attorney on the appointment list must register to request access to the TechShare Attorney Portal, and once enabled by the County, utilize the Attorney Portal for the following purposes:

1.     View / Manage Appointments

2.     Create/Submit Vouchers

3.     Manage Individual Out-of-Rotation Dates

An attorney on the appointment list shall inform the Court and the Indigent Defense Coordinator of any absence for vacations or unavailability for appointments exceeding three working days.

Court appointed counsel shall perform and timely inform the accused of all matters relating to the preparation, trial, and disposition of the case; writs of habeas corpus, deadlines, court appearance dates and times; all general and special conditions of bond applicable to felony criminal cases under the jurisdiction of the 443rd District Court; and all other such matters necessary to provide reasonable assistance of counsel.

An attorney on the appointment list shall advise the client that standard rules of Court decorum still apply for hearings conducted via Webex and ensure client has access to a reliable and stable internet connection.

Court appointed counsel shall comply with the ATTORNEY INSTRUCTIONS attached hereto and made a part hereof.

The appeals of all final convictions shall be handled by court appointed appellate counsel selected by operation of the appellate wheel or rotating list of appellate appointments.

In those instances following the conclusion of either a jury trial or a non-jury bench trial wherein the defendant has been found guilty, the final duties of court appointed trial counsel shall be to prepare and submit to the trial court at the time of sentencing the following documents:  (i) motion for new trial; (ii) notice of appeal; and (iii) motion and order to withdraw as the attorney of record.  Upon signing the order to withdraw, the duties of court appointed trial counsel shall cease.

Should court appointed appellate counsel deem it necessary, they are permitted to file an amended motion for new trial and/or notice of appeal.  Court appointed appellate counsel shall represent the defendant until all appeals to the Tenth Court of Appeals are exhausted.

F.  Minimum Eligibility Requirements for Appellate Wheel

The Judge of the 443^rd District Court shall maintain an Appellate Appointment List of qualified criminal appellate attorneys.

Court appointed appellate counsel shall be selected on the basis of an appellate wheel or rotating list of appellate appointments, to be administered in a manner similar to the selection and appointment of trial counsel as described in this plan.

In order to be approved for inclusion on the Appellate Appointment List, an application must be prepared and filed with the Judge of the 443^rd District Courts, demonstrating that the following minimum eligibility requirements have been met:

1.         Licensed by the Supreme Court of Texas for at least four years and in good standing with the State Bar of Texas.

2.         Competence to represent on appeal persons accused of non-death penalty felony offenses.

3.         Ability to provide professional appellate representation in an average amount of time commensurate with the average ability of experienced criminal law attorneys for similar cases with similar legal issues.

4.         Applicant must have completed a minimum of twelve hours of CLE pertaining to state criminal trial law or state criminal appellate law within the twelve month period prior to the date of the application.  Alternatively, the twelve hour CLE requirement may be satisfied by maintaining a specialization in criminal trial law or criminal appellate law through the Texas Board of Legal Specialization.

5.         The applicant must have been the primary author of at least two state court appellate briefs within the eighteen month period prior to the date of the application.

6.         The applicant must list in any combination three appellate court judges or justices, trial court judges, or licensed attorneys who are actively involved in the practice of criminal trial law or criminal appellate law who have knowledge of the applicant’s abilities and ethics.

To remain eligible for inclusion on the Appellate Appointment List, the attorney must meet the following requirements:

1.         Continue to meet the initial eligibility requirements F.1. – F.3. above.

2.         Complete a minimum of eight hours of CLE pertaining to appellate criminal law during each twelve month reporting period.  CLE includes only those activities for which either the State Bar of Texas or the College of the State Bar of Texas issue CLE credit.  Alternatively, the eight hour CLE requirement may be satisfied by maintaining a specialization in criminal trial law or criminal appellate law through the Texas Board of Legal Specialization.

3.         Draft and submit under his/her name to the appellate court at least one criminal appellate brief during each twelve month reporting period.  For purposes of the Appellate Appointment List, the reporting period shall run from May 1^st of each year through April 30^th of the following year, with an affidavit (included with the plan) being due on or before May 25^th following the end of each reporting period.  All matters pertaining to the Appellate Appointment List reporting period shall be administered under the terms of this plan in the same manner as the reporting period for the trial appointment list.

G.  Removal from the Appointment List

The Court may replace an attorney if the appointed counsel does not make an effort to contact or interview the accused as required, or may sanction said attorney for violation of those provisions.

The Court may remove an attorney from the appointment list 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 fails to comply with or maintain eligibility requirements for inclusion on the appointment list for counsel for indigent defendants.

The Court may remove an attorney from the appointment list if the attorney has been found to have rendered ineffective assistance of counsel.  Following such removal, the attorney, may or may not be reinstated to the appointment list depending upon the frequency or level of deficiency.  Such attorney may be required to satisfactorily complete a remedial program before reinstatement.

An attorney may be removed from the appointment list for other good cause.

The Court may take lesser action than removal, for example temporary suspension or other remedial measures.

However, an attorney may not be removed or otherwise sanctioned because of an appeal of a compensation order, unless the request for payment was fraudulent.

H.  Attorneys Eligible for Death Penalty Appointments

The criteria for eligibility to the appointment list for death penalty cases are established by the First Administrative Judicial Region of the State of Texas.  All inquiries for information and application to be placed on the death penalty appointment list should be addressed to that body.  This Court is required to make appointments from that list.

For appointment of counsel in non-death penalty felony cases the Indigent Defense Coordinator or Coordinator's designee shall utilize the TechShare Indigent Defense System to review the application of the accused for court appointed counsel and make a determination of indigent status, and if the accused is qualified for court appointed counsel, then appoint counsel from the non-death felony appointment attorney list to represent the accused within 3 working days after receiving the application for court appointed counsel. Working day means Monday through Friday, excluding official state and/or county holidays. If the accused is not qualified for court appointed counsel, the Indigent Defense Coordinator shall so notify the accused of the finding of ineligibility.

 

In any adversary judicial proceeding that may result in punishment by confinement, the 443rd District Court will not direct or encourage a defendant who is without an attorney to communicate with the attorney representing the state, but will instead advise the unrepresented defendant of his/her right to counsel and the procedure for requesting appointed counsel, and all such unrepresented defendants will be given a reasonable opportunity to request and be considered for court appointed counsel in accordance with the Plan guidelines.

 

For appointment of counsel in death penalty felony cases, the Indigent Defense Coordinator shall review the application of the accused for court appointed counsel and make a determination of indigent status. If the accused is qualified for court appointed counsel, the Judge of the 443rd District Court, shall appoint two counsel from the death penalty attorney appointment list provided by the First Administrative Judicial Region of the State of Texas within 3 working days after receiving the application for court appointed counsel. One attorney will be designated as first chair and one attorney will be designated as second chair. If the accused is not qualified for court appointed counsel, the Indigent Defense Coordinator shall so notify the accused of the finding of ineligibility.

If the defendant is released from custody prior to requesting 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.

If an indigent defendant is arrested in another county based on an Ellis County warrant, counsel will be appointed within three working days of Ellis County’s receipt of the request for counsel by the Indigent Defense Coordinator.

If a defendant is arrested in Ellis 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 Ellis County’s custody.

 

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/ . The defendant may submit these forms to the Indigent Defense Coordinator via email: IDC@co.ellis.tx.us or via fax to 972-825-5386. The Indigent Defense Coordinator shall determine the defendant's indigency status and notify the accused of the determination.

A.  Order of Non-Death Penalty Appointments

Utilizing the TechShare system, the Indigent Defense Coordinator or the coordinator's designee shall appoint an attorney in a fair, neutral, and nondiscriminatory manner.

Attorney appointment recommendations are made using TechShare Indigent Defense Software based on the County’s attorney wheel configuration, and far as practicable, the Indigent Defense Coordinator will assign the attorney based on this recommendation.  The following exceptions may be considered in altering the order:

1.         The attorney or the firm represents a co-accused.

2.         The accused requested a particular attorney not be appointed.

3.         The accused requested a particular attorney be appointed.

4.         The attorney requested that he/she not be appointed to a particular accused or to a particular case.

5.         The attorney has indicated an ethical conflict exists in representation of a particular accused.

6.         The Court perceives the appearance of an ethical conflict in representation of a particular accused or a particular case.

7.         The attorney has not withdrawn from the appointed list but has requested that he/she not be appointed for a specified period of time or until the Court is notified otherwise.

8.         The attorney is not available to contact the accused within the time required by the Plan and/or interview the accused within the time required by the Plan.

9.         The attorney is not eligible for appointment because the qualifications required by the Plan are lacking at the time.

10.       The accused is not fluent in the English language and an attorney fluent in the accused's language of choice is available for appointment.

11.       The complexity or nature of the case may require an attorney with more experience.

12.       The accused makes a request for an appointed attorney in court and an attorney on the list is available in the courtroom.

13.       The expeditious and effective resolution of current or additional cases would be impaired due to the number or complexity of undisposed cases on the attorney's docket.

14.       Any other valid reason found applicable by the Court.

Due to the complexity of a case or the needs of an accused, the number of cases assigned or the amount of compensation may not always be equal among the attorneys on the appointment list within a given time frame or a given accounting year.  Additionally, the Court allows attorneys to temporarily remove themselves from the appointment list upon notice, e.g. vacations, illness, workload, etc.  It is not practical to make up the number of cases to attorneys who have taken voluntary leave from appointments or who have not been appointed to cases because the number or complexity of the undisposed cases on the attorney's docket.  Otherwise, it is the policy of the Court to appoint each attorney in turn as their name appears on the list and any attorney passed over for the enumerated reasons will be appointed to the next case for which the attorney is eligible, in order to ensure, as far as possible, an equal distribution of cases among the attorneys on the appointment list.

The Indigent Defense Coordinator or the coordinator’s designee shall notify the attorney of his or her appointment with an Order Appointing Attorney sent via TechShare or email.

The attorney shall access the TechShare Attorney Portal on a daily basis to manage appointments, and to ensure he or she is aware of any new appointments.

B.  Death Penalty Appointments

Eligible attorneys will be appointed from the approved list in the manner directed by the First Administrative Judicial Region of the State of Texas.

A.    Compensation of Court Appointed Counsel

Court appointed counsel shall be paid reasonable compensation in accordance with a fee schedule established by the Judges of the 40th District Court and the 443rd District Court and filed with the Commissioners Court of Ellis County, Texas, as provided under Article 26.05(b) of the Code of Criminal Procedure.

The attorney requesting payment under this provision shall keep an accurate account of time expended, services rendered, and time spent on the case electronically via the TechShare Attorney Portal for all appointments that were assigned via the TechShare system. For appointments not assigned using TechShare, or for investigative and expert expenses, the forms provided by the Court (see the Ellis District Court Attorney Fee Voucher and the Out of Court Time Sheet which are collectively referred to herein as the “Attorney Fee Voucher”) may be utilized. The attorney will provide additional documentation and information if requested by the Court. 

The Court reserves the right in all cases to reduce the fee requested based on the nature or complexity of a given case and the number of hours of professional time reasonably necessary to accomplish the services actually rendered in the context of the ability of an attorney with average competence and experience. If the Court disapproves the requested amount of payment, the Court shall make written findings stating the amount that the judge approves and each reason for approving an amount different from the requested amount.  At the option of court appointed counsel, any reduction in fees is subject to appeal to the presiding judge of the First Administrative Judicial Region whose decision is final.

No payment of fees or reimbursement of expenses shall be made to court appointed counsel until after counsel submits to the Court an electronic voucher via the TechShare Attorney Portal for appointments assigned via TechShare, or a signed Attorney Fee Voucher for appointments not assigned by TechShare, or for investigative and expert expenses. All vouchers will then be forwarded to the County Auditor for review and payment.

Notwithstanding anything contained within the Plan to the contrary, at no time shall the Court approve a fee voucher or authorize a fee payment in excess of the rates provided for in the fee schedule.

B.  Investigative and Expert Expenses

Appointed counsel shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts.  Expenses incurred with and without prior court approval shall be reimbursed, according to the procedures set forth below.  When possible, prior court approval should be obtained before incurring expenses for investigation and for mental health and other experts.

The Court will not approve expenses for investigators for work that could reasonably be done by counsel or counsel's staff within the authorized fee schedule for attorneys on file with the Commissioners Court.

1.         Procedure with Prior Court Approval:

Appointed counsel may file with the trial court a pretrial Ex Parte Confidential Motion or request for advance payment or approval of investigative and expert expenses, along with a proposed Ex Parte Confidential Order.  The request for expenses must state as applicable:

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

b.         The 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 estimated cost of anticipated expenses for each investigation or each expert.

By signing the Ex Parte Confidential Order, the Court shall grant the request for advance payment or approval of expenses in whole or in part if the request is reasonable.  Both the Ex Parte Confidential Motion and the Ex Parte Confidential Order shall remain with the District Clerk and be kept in a confidential file until such time as the Judgment in the case is signed, and then both documents shall be filed among the regular papers in the cause.  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.

 

The advance payment or approval will be ordered paid to the attorney who in turn will pay those persons or entities engaged by the attorney.  The Court will not order advance payment directly to an investigator or expert employed by counsel on behalf of the accused.

Reimbursement of expenses incurred for purposes of investigation or expert testimony may be paid directly to a private investigator licensed under Chapter 1702, Occupations Code, or to an expert witness in the manner designated by appointed counsel and approved by the Court. Article 26.05(h) Tex. Code of Criminal Procedure.

2.         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 were reasonably necessary and reasonably incurred.  Unreasonable or unnecessary expenses will not be approved.

Reimbursement of expenses incurred for purposes of investigation or expert testimony may be paid directly to a private investigator licensed under Chapter 1702, Occupations Code, or to an expert witness in the manner designated by appointed counsel and approved by the Court. Article 26.05(h) Tex. Code of Criminal Procedure.

Ellis District Court Accused Instructions Regarding Court Appointed Attorney.docx (10/27/2016 6:00:37 PM) view
Ellis District Court Affidavit of Indigence.pdf (10/31/2019 7:27:12 PM) view
Ellis District Court Attorney Application for Appointment.pdf (11/1/2023 9:04:28 AM) view
Ellis District Court Attorney Application for Felony Appointment.docx (10/27/2016 6:06:14 PM) view
Ellis District Court Attorney Fee Schedule.pdf (12/1/2020 2:59:32 PM) view
Ellis District Court Attorney Fee Voucher.pdf (10/30/2015 3:56:59 PM) view
Ellis District Court Attorney Instructions.pdf (11/6/2009 9:24:18 AM) view
Ellis District Court Ellis County District Court Order Appointing Attorney (non TechShare).doc (10/29/2021 3:56:16 PM) view
Ellis District Court Ellis District Court Finding of Indigent Ineligibility.pdf (10/31/2019 7:41:02 PM) view
Ellis District Court Ellis District Court Order Appointing Attorney (TechShare).pdf (10/31/2019 7:35:55 PM) view
Ellis District Court Ellis District Court Standing Discovery Order for Criminal Cases.pdf (11/1/2023 9:08:09 AM) view
Ellis District Court Magistrates Warning Form.pdf (11/6/2009 9:14:56 AM) view