Judges may appoint attorneys who are not currently on an appointment list or contract as co-counsel ("Second Chair") to represent an indigent defendant on a complex case or case that will be going to trial.

A.        Attorney Fee Schedule and Compensation of Appointed Attorneys

1.    The fees set forth in the Felony Fee Schedule currently in effect and posted with TIDC will be paid to court appointed attorneys for time reasonably necessary for adequate representation of the accused in a District Court.

2.    Other services not specifically set forth therein shall be compensated at the rate set forth in the respective fee schedule for time spent in or out of court objectively necessary for the adequate representation of the accused, as determined by the judge of the court in which the representation was provided.

3.     Request for payment by court appointed attorneys shall be submitted within 6 months of the disposition of the matter. No payment shall be made for such services until counsel has submitted to the court an adequate and detailed request for payment and the judge has approved the payment.

a.      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.

b.      An attorney whose request for payment is disapproved or is not acted upon within 60 days of submission may appeal the disapproval or failure to act by filing a motion with the presiding judge of the administrative judicial region.

4.      Requests for payment submitted outside of the timeframe above must be accompanied by statement explaining the reason for the delayed submission, and approval will be at the discretion of the judge based on good cause shown.

5.  If an accused previously determined to be indigent is subsequently determined not to be indigent, the attorney shall be compensated by the county according. to the fee schedule for hours reasonably expended on the case.

6.      Court appointed counsel shall be reimbursed for reasonable and necessary expenses in the manner provided for by Articles 26.05 and 26,052 (f), (g), and (h) of the Code of Criminal Procedure.

7.      Court appointed counsel are not allowed to solicit or accept remuneration from the client on the appointed case. If a client is charged with new offenses or is in need of other legal services during the pendency of his appointed case, the appointed attorney cannot accept remuneration for representation in those matters without prior approval by the Court.

            B.        Payment of Expenses

1.  Expenses not Approved for Reimbursement. Administrative or secretarial work whether performed by a secretary, legal assistant, paralegal, investigator, or attorney shall not be approved for reimbursement. Such work includes but is not limited to preparing and submitting forms and invoices for payment, file set up, file maintenance, and file review.
2. Expenses Approved for Reimbursement. Court appointed counsel will be reimbursed, for reasonable and necessary expenses incurred including for investigation and experts. Prior court approval should be obtained before expenses are incurred through filing of an ex parte motion. See Ake v. Oklahoma, 400 US 68 (1985). Expenses shall be paid according to the procedures set forth below:
3.   Procedure with Prior Court Approval 

a.       Appointed Counsel may file with the trial court an ex parte request for advance approval of investigative and expert expenses. The request for expenses must state, as applicable:

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

ii. 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,

iii. An itemized list of anticipated expenses for each investigation or each expert.

b.      Any request for funding of travel in relation to investigative and expert services must be approved in advance.

1.     Such a request shall include an explanation of why travel is necessary and what alternatives were explored.

11. A budget must include estimated mileage costs, number of days of travel (for purpose of per diem), estimate for cost of airfare (if applicable), estimated cost of hotel (if applicable).

iii.   The most cost-effective approach is required (i.e., l day trip as opposed to an overnight stay, etc., rental vs. personal vehicle, airfare booked as far in advance as possible).    

iv.  Mileage will be reimbursed at the prevailing IRS reimbursement rate.

c.   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:

i. State the reasons for the denial in writing;

ii.       Attach the denial to the confidential request; and

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

4.      Procedure without Prior Court Approval

a.      Counsel appointed to represent accused persons in a District Court are authorized to incur investigative expenses of up to $750 without prior approval of the Court, and which will be reimbursed with appropriate supporting documentation.

b.      Appointed counsel should not incur investigative or expert expenses beyond this amount without prior approval of the Court. In an emergency situation, counsel may find need to incur expenses without authorization in advance. Such situations· should' be rare, and, on presentation of a claim for. reimbursement, the Court shall order reimbursement of counsel for such expenses if the expenses are found to be reasonably necessary_ and reasonably incurred.

                    c.      Unreasonable or unnecessary expenses will not be approved.

5.     Supporting Documentation for Expenses

a. When submitting a request for payment of expenses (including but not limited to services provided by medical; psychological, forensic, or mitigation experts, or services provided by investigators), invoices supporting the request must be sufficiently detailed as to allow the Court to make a determination of the accuracy and appropriateness of the request.

i.  For services (i.e., meetings/testimony/evidence review/phone calls, etc.), at a minimum the date the services were provided must be included with the amount of time being compensated for.

ii.     For supplies purchased, a receipt for the supplies must be included.

iii.   For travel, receipts for any costs incurred (i.e., hotel, etc.) and proof of mileage for requested reimbursement must be included.

Standards and Responsibilities for Attorney

Attorneys included on an Appointment List and who are appointed to a case shall:

1.      Notify the Court within 72 hours of receipt of the appointment;

2.      Make every reasonable effort to:

     a.       Contact the accused by the end of the third working day after the date on which the attorney is appointed; and

b.      Personally interview the accused as soon as practicable after the attorney is appointed, but no later than 15 calendar days if the accused is incarcerated in the Smith County Jail.

       3.      Represent the accused until: 

a.       The charges are dismissed; 

             b.      The accused is acquitted;

             c.       Appeals are exhausted; or

             d.      The attorney is relieved of his or her duties by the Court, or replaced by other counsel, after a finding of good cause has been                          entered on the record.

4.      Investigate, either personally or aided by 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 accused.

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 accused;

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;

l 0.  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;

11.  Perform the attorney's duty owed to the accused in accordance with these procedures, the requirements of the Code of Criminal Procedure, and applicable rules of ethics; and,

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.

Removal and Reinstatement

A.                Removal from Individual Cases

 1.      A judge may replace an appointed attorney if the appointed attorney does not make an effort to contact the accused by the end of the                   first working day, and/or does not interview the accused within 15 calendar days, and/or for any other suitable reason, as determined              by the judge. An attorney against whom non-compliance is alleged may obtain from the court an exception for good cause.

2.     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:

a.      Counsel's failure to comply with the requirements imposed upon counsel by this plan;

b.      Current information about the accused and the charges against the accused indicate that another qualified attorney is more appropriate for the accused under these rules;

c.      Replacement of appointed counsel in a death penalty case is required under Article 26.052(e), Texas Code of Criminal Procedure;

d.      The appointed counsel shows good cause for being removed, such as illness, workload, or scheduling difficulties; 

e.      The accused requests an attorney, other than trial counsel, for appeal; or

f.       The accused shows good cause for removal of counsel, including counsel's persistent or prolonged failure to communicate with the accused.

3.   An attorney may be removed from representation upon their own motion, including for reasons of conflict of interest or ethical concerns, and if the Court is satisfied that the lawyer has good cause for being relieved and that the client will not be prejudiced.

4.    Upon the accused's request, the court may, upon finding of good cause which may include, but is not limited to, persistent or prolonged failure to communicate, replace appointed counsel.

5.      Replacement counsel shall be selected and appointed immediately following removal of counsel as described below.

B.               Removal from Appointment Lists

    1. The judges will monitor attorney performance on a continuing basis to assure the competency of attorneys appointed under these                   provisions. 

2. An attorney may be removed from one or more appointment lists if a majority of the judges hearing felony matters determine that good cause exists for removal. Good cause may include, but is not limited to:

a.       Intentionally or repeatedly failing to fulfill the duties required by law or local rules;

b.      Failing to provide effective assistance of counsel as determined by a Texas Appellate Court;

c.      Failing on two or more occasions to contact or interview clients in a timely manner as required herein;

d.      Submitting a claim for legal services not performed as specified in Article 26.05(e), Code of Criminal Procedure;

e.      Having been found to have violated a rule of professional conduct by the State Bar of Texas;

f.     After having been placed on the appointment list, being convicted of or receiving deferred adjudication for any offense, other than an offense punishable by a fine only;

  g. Being under indictment or charged with an offense; other. than an offense punishable by a fine only; or

h. Failing to comply with the requirements for continued inclusion on the appointment lists.

C.                 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, so long as the attorney meets the other qualifications under this plan.

2.     An attorney who was removed- from the appointment list for not submitting the attorney's annual TIDC Attorney Reporting Form may be immediately reinstated upon submission of the form, so long as the attorney meets the other qualifications under this plan.

3.  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.