APPOINTMENT OF COUNSEL FOR CHILDREN IN DETENTION

 

A.  Initial Detention Hearing

 

1.   A child taken into custody must either be brought to Fannin County Juvenile Services without unnecessary delay where they may not be detained for longer than six hours pursuant to Section 52.025, Family Code, or another disposition authorized by Section 52.02, Family Code. The Juvenile Probation Officer/Juvenile Services shall process the child according to the requirement of Section 53.01, Family Code.

 

2.   If the child is not released by Juvenile Services, then a detention hearing shall be

held not later than the second working day after the child is taken into custody unless the child is detained on a Friday, Saturday, or County holiday in which case the detention hearing shall be held on the first working day after the child is taken into custody.

 

3.   Reasonable notice of the detention hearing, either oral or written, shall be given, stating the time, place, and purpose of the hearing.  Notice shall be given to the child and, if they can be found, to his parents, guardian, or custodian. 

 

 4.    Upon a decision by Juvenile Services to refer a child to the juvenile court for a detention hearing, the child’s parent/guardian/custodian shall be informed of the child’s right to hire an attorney immediately and of the right to apply for appointed counsel if they are indigent.  Prior to the commencement of the hearing, the Court shall inform the parties of the child's right to counsel and to appointed counsel if they are indigent and of the child's right to remain silent with respect to any allegations of delinquent conduct, conduct indicating a need for supervision, or conduct that violates an order of probation imposed by a juvenile court.

 

5.   If the court finds that the appointment of counsel is not feasible due to exigent circumstances, the court shall appoint counsel within a reasonable time before the first detention hearing is held to represent the child at that hearing.  If the child was not represented by an attorney at the detention hearing and a determination was made to detain the child, the child shall immediately be entitled to representation by an attorney.   If a parent or other responsible adult has not retained an attorney to represent the child at a detention hearing, the Court shall appoint an attorney. 

 

6.   The detention hearing may be conducted without the presence of the child’s parent(s) or other responsible adult(s) and in these cases, the court or the court’s designee must immediately appoint an attorney as counsel and/or as a guardian ad litem to represent the child.  The appointment shall otherwise continue from hearing to hearing.

7.   If the juvenile is detained and the family has established it cannot afford an attorney, an attorney shall be appointed immediately by the court or the court’s designee.  Prior to the appointment, the district clerk or designee shall inform the court if the child has already been represented by a Fannin County court-appointed attorney.  If the child already has been represented, the same attorney shall continue to represent the child, except for good cause shown. 

8.  If a child is released prior to the initial detention hearing, the Fannin County Juvenile Services shall inform the child’s parent/guardian/custodian of the child’s right to move for court appointed counsel if charges are filed against the child.

 

9.   Forms to request a court-appointed attorney shall be provided to the juvenile or the juvenile’s parent/guardian/custodian upon request. The Fannin County Juvenile Services shall provide the parties the contact information for the  attorney appointed by the Court to juvenile matters.

10. Upon appointment of an attorney to represent the child, the district clerk or her designee shall notify the attorney by e-mail or personal contact of the appointment and the next scheduled hearing time and date.

11. The appointed attorney shall make every reasonable effort to contact a child in detention by the end of the first working day after receiving the notice of appointment or inform the court that the appointment cannot be accepted.  Contacting the child in detention may be by personal visit, including contact during a detention hearing or by phone. A court-appointed attorney shall contact the child by personal visit, Zoom meeting or by telephone no less than once every ten working days the child remains in detention.  In addition, the appointed attorney shall ensure that while a child remains in detention, a personal visit occurs at least once every thirty (30) days. 

 

12. Prior to the initial detention hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the detention decision.

13. An attorney appointed for a detention hearing shall continue to represent the child until the case is terminated, the family retains an attorney, or a new attorney is appointed by the juvenile court.  Release of the child from detention does not terminate the attorney’s representation. 

14. Court-appointed attorneys shall make every effort to comply with the Texas State Bar Code of Ethics for communication with a client.

B.       Subsequent Detention Hearings

 

1. If a child is not represented by counsel at a subsequent detention hearing, the court may appoint an attorney limited to the date of the detention hearing.

 

 

DETERMINATION OF INABILITY TO AFFORD AN ATTORNEY

             

1. Definitions:

1.  "Total income" -  In the case of a juvenile, the income of the child's parents or other person determined legally responsible for the support of the child shall be considered. Total income shall include wages, salaries, tips, taxable interest, dividends, capital gains, business income, IRA distributions, pensions and annuities, rental real estate, royalties, partnerships, S corporations, trusts, etc., farm income, unemployment compensation, Social Security benefits, and other income.  Unless there has been a substantial change in income, total income will be determined from line 22 of the most recent U.S. Individual Income Tax return - 1040 or line 4 of the form 1040EZ. The income of the parent(s) or guardian who claimed the juvenile as a dependent on their most recent tax return shall be the primary source for determining income.

2. Financial Considerations.

 

1. The financial considerations set forth below shall be used to determine whether a juvenile is indigent and shall be applied equally to each juvenile in the county. The total income of the juvenile, child's parent(s) or other person responsible for the support of the child shall be used to determine whether the juvenile qualifies as indigent.

 

2. The juvenile’s family may be eligible for an attorney if total income does not exceed 125% of the current Federal Poverty Guidelines as published in the Federal Register from time to time.  The guidelines shall apply separately to each parent of the child if the parents do not live in the same household.  If one parent is outside the poverty guidelines, that one parent can be ordered to hire an attorney for the child.

 

3. If the parents do not live in the same household, each parent subject to the court’s jurisdiction shall complete the motion and affidavit for court appointed attorney.

  

4.  A family is presumed to be eligible for a court-appointed attorney if the parent/guardian/custodian of the household in which the child resides has been determined to be eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income, or public housing.  The presumption can be overcome if one parent is outside the guidelines in which case that one parent can be ordered to hire an attorney for the child.  

5.   The court may appoint an attorney in disregard of the financial guidelines when the interests of justice so require.

 

3. Factors Not To Be Considered

 

1. A juvenile's posting of bail or ability to post bail may not be considered, except as provided by law, in determining whether the juvenile is indigent.  Even when a juvenile has posted bail, the juvenile's financial circumstances are measured by the financial standards stated in this rule.

 

2. The resources available to friends and families or relatives of the juvenile may not be considered in determining whether the juvenile is indigent.  Only the juvenile's financial circumstances as measure by the financial standards stated in this rule shall be used as the basis for determining indigence.

 

3. A juvenile shall not be denied the appointment of counsel merely because the person is employed.

 

4. Forms Required

 

1. A juvenile, parent, or person responsible for the support of the child, who requests a determination of indigency and appointment of counsel shall:

 

a.  complete under oath a questionnaire concerning financial resources, or

b.  respond under oath regarding financial resources, or

c.  complete the questionnaire and respond to examination.

 

  2.   No statement of an adult or a child during the application for an attorney process shall be used against the child at any adjudicatory or dispositional phase of a child’s case.

QUALIFICATIONS

            A.    General Qualifications To Be On The Appointment List 

1.   All attorneys must be able to work independently within the Fannin County juvenile justice system which includes a working knowledge of use of forms, working with juvenile probation and detention officers and the assistant district attorneys assigned to juvenile matters and must be familiar with the Juvenile Justice Code. 

2.   All attorneys must be familiar with the paperwork required for various hearings and must not use court staff to complete paper work.

3.   Attorneys certified in Juvenile Law or Criminal Law by the Texas Board of Legal Specialization are qualified for any appointment.

 4.  All attorneys must be licensed by the State of Texas and in good standing with the Texas State Bar.   

5.   All attorneys must have a physical address to which correspondence can be received and the juvenile or the juvenile’s parent/guardian/custodian can locate and meet the attorney. 

6.   All attorneys must have a method of regularly receiving telephone calls, messages. 

7.    All attorneys must have either a functioning e-mail, or some electronic method of receiving and sending written messages. 

8.   All attorneys must have a technical means of producing and filing motions and/or orders. 

9.   All attorneys must promptly notify the district clerk, juvenile board, and juvenile court of any changes to the information on file with the juvenile board. 

10. All attorneys shall promptly notify the juvenile court of any matter that would disqualify the attorney from receiving appointments under these guidelines or under any other law, regulation or rule. 

11. All attorneys must complete at least 6 hours CLE in juvenile law during each 12 month reporting period. . All attorneys shall file a copy of his/her Continuing Legal Education annual report form with the 336^th District Court’s coordinator no later than thirty days after receipt by the attorney of the form from the State Bar of Texas, but in any case, no later than December 30th of each year. The District Court’s coordinator shall inform the chair of the juvenile board no later than January 15th of the following year about the status of compliance by each listed attorney.

12. Be knowledgeable in juvenile law and be aware of collateral consequences of a juvenile adjudication and disposition including, but not limited to, issues involving Texas Juvenile Justice Department (TJJD) commitments, use of juvenile adjudications/dispositions in adult proceedings, license suspensions, sex offender registration, school removals and expulsions, sealing or records, etc.  13.  All attorneys must be approved by majority vote at a juvenile board meeting. 

14. All attorneys must agree to be bound by and accept as a condition of their appointment the schedule for court-appointed attorney fees for the juvenile court/336^th District Court of Fannin County and other rules of this plan.  

15. Unless board certified in juvenile law, meet with the juvenile court judge within 30 days of the initial application to demonstrate knowledge of the collateral consequences of a juvenile court record on a person and to demonstrate knowledge of the forms used for the various court hearings. 

16. All attorneys must comply with any additional requirements that may be later imposed by the Juvenile Board.  

17. 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 through the online form to the Texas Indigent Defense Commission/form prescribed by the Texas Indigent Defense Commission.  Proof of compliance with this provision shall be provided to the District Court Coordinator, either in writing or email, a copy of the report submitted to the Texas Indigent Defense Commission.

          B.     Conduct Indicating Need for Supervision (CINS): 

  1.   Meet the General Qualifications listed above; and

  2.   The applicant must meet with juvenile court staff, juvenile probation services personnel, and the assistant district attorney(s) assigned to the juvenile court. 

C.     Delinquent Conduct.

1.      Complete the requirements for the CINS list; and

2.  The applicant must have six months experience in juvenile law as a prosecuting attorney, or

3.  The applicant must observe or participate in at least 3 detention hearings, and 2 agreed adjudication/disposition hearings.

D.    Transfer To Criminal Court/Certification.

1.   The attorney must have met other juvenile court-appointment requirements, must have been counsel in two contested juvenile transfer/certification hearings, otherwise, at the court’s discretion, the court will appoint a mentoring attorney with appropriate qualifications to assist the attorney of record, or substitute the attorney of record with a qualified attorney.

E.     Appeals 

1.   Attorneys for appeals shall comply with Family Code, Chapter 56, and supply the required affidavits.

2.   Notwithstanding that preference shall be given to the attorney who represented the child before the decision to appeal was made, attorneys appointed for an appeal shall have one (1) year of juvenile law experience or three (3) years of criminal law experience.

APPOINTMENT OF COUNSEL FOR CHILDREN NOT DETAINED AT INTAKE

 

1. If the child is released from detention and if a petition to adjudicate or a motion to modify is filed, the juvenile court will use the financial forms gathered at intake to make a determination of indigence.If no financial information is available, the juvenile court shall promptly summon the child’s parent/guardian/custodian to the court so that financial information may be gathered for a determination of indigence.
2. If the court makes a finding of indigence, the court shall appoint an attorney on or before the fifth working day after:

1. The date a petition for adjudication, or discretionary transfer hearing has been served upon the child; or
2. A motion to modify disposition seeking commitment to TJJD or placing in secure correctional facility has been filed.

C.  If the family does not qualify for appointed counsel or if the parent or guardian is not available, and the family fails to provide an attorney, the juvenile court may appoint an attorney in any case in which it deems representation is necessary to protect the interests of the child.  

D.  The prosecuting attorney or court clerk shall notify the juvenile court upon the filing of and return of service of a motion to modify or return of service of a petition for adjudication or discretionary transfer.

E.  The district clerk shall notify the attorney of hte appointment no later than the end of the first working day after the appointment.

F.   If the child is not in detention, the attorney shall contact the child within five working days after receiving notice of the appointment or shall within that time notify the court that the attorney cannot accept the appointment. 

ROTATION 

1. The appointing authority will identify which of the appointment lists, discussed in the attorney qualifications section, is most important based on the accusations against the child and will appoint the attorney whose name is first on the list or alternatively from among the next five names on the appointment list, unless the court makes a finding of good cause on the record for appointing an attorney out of this order.An attorney who is not appointed in the order in which the attorney’s name appears on the list shall remain next in order on the list.
2. Good cause may include:

1.   An attorney may be appointed outside the rotation if the interests of justice would be served by appointing an attorney already familiar to the child and the child’s case(s).

2.  An attorney may be appointed outside the rotation if the attorney has given notice he/she is not available due to illness, prior court scheduling, continuing legal education, vacation, military obligations, etc. 

3.  An attorney may be appointed outside the rotation list if the client has special needs such as interpretation or physical impairment and the attorney can accommodate those needs. 

4.   An attorney may be appointed outside the rotation list if the attorney has specialized experience such as familiarity with mental health issues. 

5.   An attorney may be appointed outside the rotation list if the child has an immediate need and the attorney appointed can attend the case immediately.  Such an appointment can be for a limited purpose. 

6.   An attorney may be appointed outside the rotation list if the child needs to be able to meet with an attorney geographically close to the child’s home or school. 

7.   An attorney may be appointed outside the rotation list if the child can work only with an attorney of a particular gender. 

8.  An attorney may be appointed outside the rotation list based on the apparent complexity of the case as compared with the experience of the attorneys within the next rotation.

      9.   An attorney may be appointed outside the rotation for other good cause shown.

EMERGENCY APPOINTMENT

1. If no attorney who meets the continuing legal education or board certification requirements is available by the time an attorney must be appointed in the case, another attorney may be appointed.Priority shall be given to an attorney with experience in criminal or juvenile law, respectively.

JUDICIAL REMOVAL FROM CASE

1. The judge presiding over a case involving a child 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 hearing;
2. Counsel’s failure to comply with the requirements imposed upon counsel by this plan;
3. Current information about the child and the charges against the child indicate that another qualified attorney is more appropriate for the child under the rules;
4. The appointed counsel shows good cause for being removed, such as illness, workload or scheduling difficulties.
5. The child requests an attorney, other than trial counsel for appeal; or
6. The child shows good cause for removal of counsel, including counsel’s persistent or prolonged failure to communicate with the child, and the court finds good cause.

2. Appointment of Replacement Counsel – Whenever appointed counsel is removed under this section, replacement counsel shall immediately be selected and appointed in accordance with the procedures described in this plan.

COMPENSATION 

1. Compensation for juvenile cases:

1. Attorneys are to be paid a reasonable fee for the following: time spent in court making an appearance; reasonable and necessary time spent out of court on the case, supported by documentation that the court requires; preparation of an appellate brief and preparation and presentation of oral argument to an appellate court; and preparation of a motion for rehearing. A fee schedule is to govern these payments, taking into account reasonable and necessary overhead rates.No payment is to be made to the attorney unless the judge approves the payment.If the judge disapproves the requested amount, the judge shall make written findings stating the amount of payment and the reasons for any disapproval.An attorney whose request for payment is disapproved may appeal the disapproval.Tex. Code Crim. Proc. Art. 26.05(a)-(e).
   1. The following are set as the minimum and maximum allowable fees for appointed Lead Counsel:

1. Hourly payment for felony cases (State Jail-First Degree) shall be made at a rate of $90 to $150 per hour for preparation time, contested hearings, trial and appeals.

2. The 336^th District Court Judge each year shall review the fee schedule and shall have the authority to modify the fee schedule.

2. Timely Request for Compensation of Representation
   1. All requests for payment shall be made using the Court’s approved Attorney Fee Voucher form or such substantially similar voucher as may be approved by the Court.
   2. The County budget year runs from October 1 to September 30 each year.No advance payments will be made on juvenile cases, however partial payments are allowed upon proper billing.Payment Vouchers should be submitted every 60 days but no later than quarterly.If submitting every 60 days, then Payment Vouchers should be submitted in odd number months (i.e. November, January, March, etc.) If submitting quarterly, then:

1. For services rendered from October 1 to December 31, payment voucher submission deadline is January 15th;
2. For services rendered from January 1 to March 31, payment voucher submission deadline is April 15th;
3. For services rendered from April 1 to June 30, payment voucher submission deadline is July 15th; and
4. For services rendered from July 1 to September 30, payment voucher submission deadline is October 15^th.

3. Payment vouchers may be submitted more frequently, if desired.Upon disposition of the case, the final Payment Voucher shall be submitted no later than 30 days after disposition of the case.Requests for payment submitted more than 30 days after disposition of the case WILL NOT BE APPROVED, except for good cause shown in highly unusual situations.

C.  Appeals

1.   Application for payment for preparing and filing briefs on appeal shall be submitted at the conclusion of all appeals.  The application for payment shall be submitted with the application for payment.

D.  Investigative and Expert Expenses.

1.  Counsel appointed in a juvenile cases 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.

2.  Procedure with Court Approval:

      a.   Appointed counsel may file with the court, a pre-trial ex parte confidential request for advance payment of investigative and expert expenses.  The request must state, as applicable,

i.    The type of investigation to be conducted or the type of expert to be retained, including the qualifications of said expert(s) and disclosure of findings by any court excluding the proposed expert testimony due to lack of qualifications or unreliability of scientific theory applied by expert(s).

ii.  The specific facts that suggest the investigation will result in admissible evidence of 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.     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.

3.  Procedure Without Prior Court Approval:

a.   An attorney shall be reimbursed for expenses including expenses for private investigators licensed in Texas, mental health experts and other incurred on behalf of the appointed client if the expenses are necessary and reasonably incurred. Unreasonable and unnecessary expenses will not be approved. TEX CODE CRIM. P. ARTICLE 26.05(d), 26.052 and case law. 

           4.     The presumed maximum for investigation/expert fees is $500. “Experts” do not include appointment of psychologists or psychiatrists mandatory for the hearing. 

5.   Incidental expenses related to research, jail visits, conferences with clients and/ or witnesses including parents, mail and copying expenses, courier fees or any other miscellaneous expense(s) associated with your appointed case will not be paid separately.  All expenses, except expert fees or investigation expenses are included in the rates set out above. The court will consider reimbursement for extraordinary out of pocket expenses.

E.    Courtroom Protocol  

1.   The attorney shall not be excused by the Court until all paperwork, including a completed Order of Release or a case reset form for each case is signed and copies distributed.

2.   If a subsequent hearing is needed, the attorney shall not leave the courtroom until a date to return is obtained from the court coordinator, a case reset form is filled out and signed, and copies are made for the family and others.  One copy shall be given to the assistant district attorney.  The defense attorney is responsible for gathering the signatures and delivering a copy to the State.

 

3.   If the hearing is the final hearing, the attorney shall not leave the courtroom until the attorney has conferenced with the juvenile about the right to appeal.  

 

GENERAL PRINCIPLES

A.    Continuity Of Representation      

1.      If a child has been represented by a Fannin County court-appointed attorney, preference will be given to appointment of the same attorney.

2.  When an attorney is appointed, the attorney shall represent the child until the case is terminated or substitute counsel is appointed or hired. 

3.  Court-appointed attorneys shall obtain information at the initial meeting(s) with the child sufficient to the seal the case.   

4.   With notice to the court and to the child, a court-appointed attorney may arrange with another attorney on the court appointment list to have a substitute attorney for an individual hearing without a change of the attorney of record. The temporary substitution is not an appointment. 

5.   With notice to the court and to the child, a court appointed attorney may request the court to appoint a substitute attorney for one hearing.  The temporary substitution is not an appointment.

B.  Conflict Of Interest

1. An attorney who is a parent of a child may not represent the child or a co- respondent or a co-defendant of the child.

 2.  A court-appointed attorney representing a child may not also represent a co-      respondent or co-defendant of the child except for judicial economy and the best interests   of all parties. 

C.  Other General Guidelines

 

1.      A child with no parent in Fannin County shall be presumed to require a court-appointed attorney until the parent/guardian/custodian provides an attorney or requests a court-appointed attorney. 

 

2.          The guardian/custodian of a child with no parent in Fannin County shall be presumed to be unable to repay any of the costs of an attorney.

 

3.        The court will not appoint an attorney to represent a parent except for the parent’s contempt of court proceeding.  The same attorney will not also represent the child.

 

4.            The court will not appoint an attorney for a child if the parent(s) can afford to hire an attorney for the parent(s).

 

5.        Notice to the court by attorneys in order to comply with these procedures is preferred to be by e-mail, hand delivery or phone call to the juvenile court/336th    District Court coordinator.

 

6.            For the purposes of rotation, the individual child and not the number of cases a child has shall count as one appointment.

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