MIDLAND COUNTY INDIGENT DEFENSE PLAN Amended January 17, 2012

Transcription

1 MIDLAND COUNTY INDIGENT DEFENSE PLAN Amended January 17, 2012 FOR THE DISTRICT COURTS, STATUTORY COUNTY COURTS AND CONSTITUTIONAL COUNTY COURT OF MIDLAND COUNTY, TEXAS

2 MIDLAND COUNTY INDIGENT DEFENSE PLAN PREAMBLE... IV I. RESPONSIBILITIES OF ARRESTING OFFICER AND DETAINING AGENCY. 1 II. RESPONSIBILITIES OF THE MAGISTRATE... 1 A. General... 1 B. Judges as Magistrates... 2 C. Magistrate s Hearing... 2 D. Magistrate's Setting of Bail and Conditions of Bond... 3 E. Magistrate's Finding of Probable Cause... 3 F. Magistrate's Record and File... 4 III. PROCEDURES FOR REQUESTING APPOINTMENT OF COUNSEL... 4 A. Magistrate s Hearing... 4 B. Release of Defendant Prior to Appointment of Counsel... 5 C. Defendant on Bond... 5 D. Defendant's Refusal of Counsel... 5 IV. FINANCIAL STANDARDS FOR DETERMINING INDIGENCE... 5 A. Financial Considerations Income Assets and Property Debts Living Expenses Dependents Other Factors... 7 B. Factors Not to be Considered... 7 C. Eligibility for Court Appointed Counsel... 7 D. Public Assistance... 7 E. Incarceration... 7 F. Substantial Hardship... 7 G. Presumption of Indigence... 8 H. Judicial Review... 8 I. Appointment of Counsel... 8 J. Denial of Appointed Counsel... 8 V. STANDARDS FOR ELIGIBILITY AND JUDICIAL APPROVAL FOR PLACEMENT ON LISTS OF ATTORNEYS TO SERVE AS COURT APPOINTED COUNSEL... 9 A. Appointment Lists... 9 B. Attorney Application... 9 C. Judicial Approval... 9 D. General Standards of Eligibility... 9 E. Maintaining Eligibility F. Additional Standards for Misdemeanor List G. Additional Standards for Non-Capital Felony Lists State Jail and Third Degree Felonies Second Degree and First Degree Felonies H. Additional Standards for Capital Felony List i

3 I. Additional Standards for Appellate and Writ List J. Additional Standards for Mental Illness List VI. APPOINTMENT PROCEDURES A. Judicial Appointment B. Misdemeanor, Felony and Capital Felony Cases C. Mental Illness Cases D. Extradition Cases E. Duration of Appointment F. Appeal G. Multiple Cases with Same Defendant H. Emergency Appointment I. Automatic Assignments VII. REMOVAL OF APPOINTED COUNSEL A. Judicial Removal from Appointment Lists B. Suspension from Appointment Lists C. Voluntary Sabbaticals from Appointment Lists D. Judicial Removal from Case E. Appointment of Replacement Counsel VIII. RESPONSIBILITIES OF COURT APPOINTED COUNSEL A. Attorney Contact with the Defendant B. Attorney Confirmation of Acceptance of Appointment C. Maintain Reasonable Contact with the Client D. Appear at All Court Hearings IX. APPOINTMENT OF INVESTIGATORS AND EXPERTS X. JUVENILE PROCEEDINGS A. Designation of Responsibility for Proper Administration of Plan B. Appointment of Counsel for the Detention Process C. Appointment of Counsel for Formal Petition or Motion to Modify D. Responsibilities of Arresting Officer and Detaining Agency E. Bond F. Detention Hearing G. Release H. Appointment Procedures I. Standards for Eligibility and Judicial Approval for Placement on List of Attorney to Serve as Court Appointed Counsel in Juvenile Proceedings Attorney Lists Attorney Application Juvenile Board Approval Eligibility Duration of Appointment Appeal Multiple Juvenile Proceedings Removal from Appointment Lists J. Compensation of Court Appointed Counsel XI. COMPENSATION OF COURT APPOINTED COUNSEL A. Fee Schedule ii

4 1. Guilty Plea or True Plea Dismissal with No Reindictment and No Misdemeanor Filing Dismissal with Misdemeanor Filing Juvenile Detention Hearings Contested Hearings or Trials Out of Court Services Capital Cases in Which the State Seeks the Death Penalty Multiple Cases Appellate Services B. Expenses C. Request for Payment D. Approval or Disapproval of Request for Payment E. Appeal of a Request for Payment F. No Remuneration from Defendant XII. MISCELLANEOUS A. Adoption of Plan B. Plan Not a Limitation on Court Powers MAGISTRATE S WARNING MAGISTRATE'S ORDER SETTING BAIL MAGISTRATE'S FINDINGS REGARDING PROBABLE CAUSE AFFIDAVIT REGARDING INDIGENCE FINANCIAL INFORMATION STATEMENT WRITTEN ADMONISHMENTS ON WAIVER OF COUNSEL FOR TRIAL ORDER APPOINTING COUNSEL ORDER DENYING APPOINTMENT OF COUNSEL APPLICATION TO BE PLACED ON THE LIST OF ATTORNEYS QUALIFIED FOR APPOINTMENT IN INDIGENT CRIMINAL CASES ATTORNEY S CERTIFICATION JUVENILE COURT'S ORDER FOR ATTORNEY'S FEES ATTORNEY S CLAIM FORM ORDER APPROVING PAYMENT OF COUNSEL iii

5 PREAMBLE Every person charged with a criminal offense is entitled to representation by legal counsel. Indigent persons who are charged with a misdemeanor offense punishable by confinement or charged with any level of felony are entitled to have legal counsel appointed for them. In compliance with the Article of the Texas Code of Criminal Procedure, the judges of the district courts, statutory county courts and constitutional county court of Midland County, Texas adopt the following plan. The purpose of this plan is to develop and maintain procedures for the timely appointment of counsel in criminal cases and establish criteria to assure that appointed counsel meet adequate experience and training skill levels for defending appointed criminal cases. iv

6 MIDLAND COUNTY INDIGENT DEFENSE PLAN I. RESPONSIBILITIES OF ARRESTING OFFICER AND DETAINING AGENCY A. Unless a person is arrested pursuant to an arrest warrant, bench warrant, capias or other order of a magistrate or judge, the arresting officer must complete and file an offense report and a probable cause affidavit (which may be on one form) accusing the person of a crime at the time the person is booked into the Midland County jail. No person shall be booked into the Midland County jail, unless the above conditions are satisfied. B. The arresting officer or the person having custody of the person arrested shall, without unnecessary delay, take the arrested person or have the arrested person taken before a magistrate. Without unnecessary delay means within 48 hours after the arrest. Every person arrested, with or without a warrant or other order of the magistrate or judge shall be taken before a magistrate. C. At the time a person who was arrested without a warrant, capias or other order of a magistrate or judge is taken before the magistrate, the person responsible for taking such arrested person shall provide the magistrate with information necessary for the magistrate to complete the magistrate's duties, including information about the charge and an affidavit setting forth facts which the magistrate may consider, if the magistrate is required to determine probable cause. D. If no magistrate or judge shall be found in Midland County, the arresting officer or the person having custody of the arrested person shall take the arrested person or have the arrested person taken before a magistrate or judge in a county bordering Midland County. II. RESPONSIBILITIES OF THE MAGISTRATE A. General Within 48 hours of a person's arrest, a magistrate must complete certain duties, as follows: 1. give the arrested person the admonitions required by law; 2. set an appropriate amount of bail and conditions of bond, if any; 3. in cases where an individual has been arrested without an arrest warrant, capias or other order of a magistrate or judge, determine whether or not there is probable cause to believe the person committed an offense; and 4. prepare certain documentation and a file.

7 The Justices of the Peace of Midland County shall establish a plan for rotating the responsibility of accomplishing these duties among themselves on a periodic basis. The Justice of the Peace who has these duties for a particular period, as set forth in such rotation plan, shall perform these duties each day, Monday through Saturday. B. Judges as Magistrates The judges of the county court, statutory county courts and district courts of Midland County may sit as magistrates and if they do so, they shall comply with these procedures. C. Magistrate s Hearing Within 48 hours of the arrest, the magistrate shall conduct a hearing (the "magistrate s hearing") and give the arrested person (hereinafter referred to as "Defendant" or "defendant") certain admonitions required by law and complete the appropriate documentation (Form 1). 1. When a defendant is first brought before a magistrate, the magistrate shall record the date and time when the defendant was first taken into custody and the date and time when the defendant was brought before the magistrate. 2. The magistrate shall determine if the defendant can speak and understand English or if the defendant is deaf. After making such determination, the magistrate shall, in an appropriate manner consistent with Articles and 38.31, Texas Code of Criminal Procedure, inform the defendant of the following: a. The magistrate shall give the admonitions required by Article 15.17, Texas Code of Criminal Procedure. b. The magistrate shall give the defendant the admonitions regarding the right to request the appointment of an attorney as required by Article 15.17(e), Texas Code of Criminal Procedure, specifically asking if the defendant wants to request appointment of counsel. c. If the defendant is not a citizen of the United States of America, the magistrate shall give the defendant the admonitions regarding the right to consular notification, specifically asking if the defendant wants the court to notify the defendant's consular representative of the defendant's arrest or detainment. 3. An electronic or written record of the communication between the defendant and the magistrate shall be made at the magistrate s hearing of the following: a. the admonitions; b. the magistrate's inquiry of the defendant regarding appointed counsel and the defendant's response; and 2

8 c. the magistrate's inquiry of the defendant regarding consular notification and the defendant's response. The record of the magistrate s hearing shall be maintained for the same period of time required for all official records of criminal court proceedings. Counsel for the defendant may obtain a copy of such record upon payment of a reasonable amount to cover costs of reproduction. 4. The magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided to the defendant at the time of this hearing. (Forms 4 and 5) 5. If a magistrate has cause to believe the defendant is not mentally competent to decide whether to request counsel, the magistrate will enter a request for counsel on the defendant's behalf. The magistrate shall record this request for counsel in a way which alerts the judge making the appointment that counsel competent to represent mentally ill defendants should be appointed. D. Magistrate's Setting of Bail and Conditions of Bond At the magistrate s hearing, the magistrate shall set the amount of bail and any conditions of bond for the defendant. The magistrate shall complete Form 2 in the event conditions of bond are set. 1. In cases of arrest pursuant to a warrant, capias or other order of a magistrate or judge, the magistrate shall set the amount of bail and conditions of bond, unless the amount of bail and/or conditions of bond are set by an arrest warrant and/or a related order. 2. In cases of arrest without a warrant, capias or other order of a magistrate or judge, bond shall be set at: (a) $5, within 24 hours of arrest on misdemeanor charges; or (b) $10, within 48 hours of arrest on felony charges; unless the magistrate, within such respective time periods, enters a written finding of probable cause to believe the defendant committed the offense charged. E. Magistrate's Finding of Probable Cause Only in cases in which a person is arrested without a warrant, capias or other order of a magistrate or judge, will the magistrate make a finding of probable cause. Probable cause must be predicated on facts contained in the record which are sufficient to support a reasonable belief that the arrested person committed the offense charged, based upon one or more of the following: 3

9 1. a probable cause affidavit filed by the arresting officer; 2. an affidavit filed with the magistrate by the prosecuting attorney; 3. credible documentation filed with the magistrate, or 4. evidence presented in open court at the magistrate s hearing. If probable cause to arrest is not found, the magistrate shall notify the attorney representing the State and, if requested by the State, the magistrate shall 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 , Texas Code of Criminal Procedure. If the magistrate detains any person at the State's request pursuant to this procedure, the magistrate shall notify the court which is vested with jurisdiction for the offense for which the defendant is charged. The magistrate s findings shall be reduced to writing as provided in Form 3. F. Magistrate's Record and File Immediately after the magistrate s hearing, the magistrate shall assemble and maintain the file for the case: 1. The file shall consist of the forms completed by the magistrate and the defendant, if applicable, along with any reports, complaints, or other information provided to the magistrate by the arresting officer or the person bringing the defendant before the magistrate. 2. The magistrate shall forward, or cause to be forwarded, without unnecessary delay, but not later than 24 hours after the defendant requests appointment of counsel a complete copy of the entire file, including Form 4 and Form 5, in one package to the District Clerk. 3. Failure to complete the forms or assemble the file shall not be grounds to dismiss the charges. III. PROCEDURES FOR REQUESTING APPOINTMENT OF COUNSEL A. Magistrate s Hearing During the magistrate s hearing, the magistrate shall inform the defendant of the right to seek a court appointed attorney and shall provide an opportunity for the defendant to request a court appointed attorney. Such defendant shall complete and file with the magistrate a sworn Affidavit Regarding Indigence (Form 4) indicating whether or not the defendant wishes to have counsel appointed and, if appropriate, the Financial Information Statement (Form 5). The magistrate will ensure the defendant has reasonable assistance 4

10 in completing the forms. If the defendant does not speak or understand the English language, or if the defendant is deaf, the magistrate shall inform the person in an appropriate manner consistent with Articles and 38.31, Texas Code of Criminal Procedure. B. Release of Defendant Prior to Appointment of Counsel Notwithstanding anything herein to the contrary, if an indigent defendant is released from custody prior to appointment of counsel under this section, appointment of counsel is not required until the defendant's first court appearance or until adversarial judicial proceedings are initiated or until the defendant makes or renews a request for appointment of counsel, whichever comes first. It will be presumed that such defendant's financial condition has materially improved and counsel will not be appointed, unless the defendant renews the request and discloses any changes to the information previously provided. C. Defendant on Bond A defendant on bond requesting appointed counsel will be advised by the judge of the court in which the case is pending to complete an Affidavit Regarding Indigence (Form 4) and the Financial Information Statement (Form 5). D. Defendant's Refusal of Counsel If an indigent defendant charged with a misdemeanor or felony offense refuses to apply for appointed counsel or, if a nonindigent defendant refuses to hire counsel, the judge of the court in which the case is pending will admonish the defendant as to the right to counsel, the disadvantages of pro se representation, and have the defendant execute a waiver as required by Article 1.051, Texas Code of Criminal Procedure (Form 6). IV. FINANCIAL STANDARDS FOR DETERMINING INDIGENCE A. Financial Considerations The judge making court appointments of counsel for defendants shall consider the following standards for determining indigence: 1. Income The defendant's income from any and all sources and any and all spousal income actually available to the defendant, including: a. all net earned income from wages, salary and other compensation for personal services, including commissions, overtime pay, tips, and bonuses (gross income earned minus those deductions required by law or as a condition of employment); 5

11 b. interest, dividends, and royalty income; c. net self-employment income (gross income from self-employment, whether positive or negative, including benefits allocated to an individual from a business or undertaking in the form of a proprietorship, partnership, joint venture, close corporation, agency, or independent contractor, minus ordinary and necessary expenses required to produce that income and those deductions required by law or as a condition of operating the business); d. net rental income (gross rental income minus ordinary and necessary operating expenses and mortgage payments, but not including non-cash items such as depreciation); and e. all other income actually being received, including but not limited to, severance pay, retirement benefits, pension, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, child support, spousal maintenance and alimony. f. seasonal or temporary income shall be considered on an annualized basis, averaged together with periods in which the defendant has no income or lesser income. 2. Assets and Property Assets and property owned by the defendant, or in which the defendant has an interest, which are not exempt from attachment under state law, including but not limited to, cash on hand, stocks, bonds, checking, savings or other account at a financial institutions or personal property on deposit with any other person, entity, trust or estate. 3. Debts Outstanding debts or other financial obligations of the defendant; 4. Living Expenses The ordinary and necessary living expenses of the defendant; 5. Dependents The number and age of the defendant's legal dependents; 6

12 6. Other Factors Such other reasonable factors as determined by the judge regarding the financial ability of a defendant to retain counsel. B. Factors Not to be Considered The judge shall not consider whether the defendant has posted bail, except to the extent that it reflects on the defendant's financial circumstances. Any resources from friends or family, except spousal income available to a defendant, may not be considered. C. Eligibility for Court Appointed Counsel A defendant shall be deemed indigent and eligible for appointed counsel, if such defendant's income does not exceed 125% of the poverty guidelines as established and revised annually by the United States Department of Health and Human Services and published in the Federal Register, and if the defendant's non-exempt assets and property do not exceed the defendant's debts by the lesser of: 1. $2,500; 2. $5,000 in the case of a defendant whose household includes a person who is age 60 or over, disabled or institutionalized; or 3. double the estimated cost of obtaining competent private legal representation on the offense with which the defendant is charged. D. Public Assistance A defendant is deemed indigent if, at the time of requesting appointed counsel, the defendant or the defendant's dependents have been determined to be eligible to receive food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental Security Income or public housing. E. Incarceration A defendant is deemed indigent if, at the time of requesting appointed counsel, the defendant has no non-exempt assets or property in excess of the amount specified in paragraph C above and is (1) currently serving a sentence in a correctional institution; (2) currently residing in a public mental health facility or (3) the subject of a proceeding in which admission or commitment to a public mental health facility is being sought. F. Substantial Hardship A defendant who does not meet any of the financial standards above may nevertheless be determined indigent, if the defendant is otherwise unable to retain private counsel without 7

13 substantial hardship to the defendant or the defendant's dependents, taking into account the nature of the criminal charges, the anticipated complexity of the defense, the estimated cost of obtaining competent private legal representation for the matter charged, and the amount needed for the support of the defendant and the defendant's dependents. G. Presumption of Indigence A defendant determined to be indigent is presumed to remain indigent through the entry of a final judgment in the trial court. To request appointment of counsel for appeal, a defendant must file a new Affidavit Regarding Indigence (Form 4) and a Financial Information Statement (Form 5) and disclose any changes to the information previously provided. H. Judicial Review A defendant's status as indigent or not indigent may be reviewed in a formal hearing at any stage of the court proceedings, based upon the following: 1. evidence of a material change in the defendant's circumstances; or 2. additional information regarding defendant's financial resources. If a defendant who was determined to be indigent is later determined not to be indigent, the attorney previously appointed for the defendant shall be compensated by Midland County for the time reasonably expended in the case, in accordance with this plan. I. Appointment of Counsel After reviewing the Affidavit Regarding Indigence (Form 4), the Financial Information Statement (Form 5) and such other information bearing on the financial status of the defendant as the judge deems proper, and determining the defendant qualifies for the appointment of counsel, the judge shall enter an order (Form 7) regarding the same and the defendant shall be notified of such appointment. Appointed counsel shall notify the presiding judge of the court in which the case is pending as soon as practicable if counsel receives information that the defendant does not qualify for appointed counsel. J. Denial of Appointed Counsel After reviewing the Affidavit of Indigence (Form 4), the Financial Information Statement (Form 5) and such other information bearing on the financial status of the defendant as the judge deems proper, and determining the defendant does not qualify for an appointment of counsel, the judge shall enter an order regarding the same and the defendant shall be notified of the decision. (Form 8) 8

14 V. STANDARDS FOR ELIGIBILITY AND JUDICIAL APPROVAL FOR PLACEMENT ON LISTS OF ATTORNEYS TO SERVE AS COURT APPOINTED COUNSEL A. Appointment Lists The judges of the county court, statutory county courts and district courts shall, not less than annually, review and reform the lists of attorneys eligible for court appointments in misdemeanor and felony cases, juvenile proceedings and mental illness cases. Such lists shall be filed with the District Clerk and County Clerk and made available to the public upon request and payment of a reasonable amount to cover the costs of reproduction. B. Attorney Application An attorney may, at any time, file a written application to receive criminal appointments in the county and district courts of Midland County, Texas (Form 9). To be eligible for placement on a list, the attorney must meet the minimum general and additional qualifications to represent a defendant charged with the stated level of offense. C. Judicial Approval Notwithstanding an attorney meeting the objective qualifications described herein, an attorney's name may be placed on a specific appointment list only if a majority of the judges approve the attorney's placement on such list. D. General Standards of Eligibility The standards set forth herein are designed to provide qualified counsel to represent indigent defendants in criminal cases. To qualify as appointed counsel, an attorney must: 1. be licensed to practice law in the State of Texas or be admitted pro hoc vice; 2. be in good standing with the State Bar of Texas; 3. exhibit professionalism, reliability, proficiency and a commitment to providing quality representation to criminal defendants; 4. be familiar with substantive criminal law and criminal procedure; 5. neither have confessed nor been found by a court to have provided ineffective assistance of counsel; 6. maintain the attorney s primary office in Midland County, Texas, where the defendant can meet with counsel. A post office box is not sufficient to satisfy this requirement; 9

15 7. maintain a telephone to allow the defendant or court to contact counsel; 8. have a secretary, receptionist, answering service or a regularly monitored and functioning answering machine; 9. maintain a secondary telephone line and equipment capable of receiving and facsimile transmissions twenty-four hours a day; 10. have the ability to produce typed pleadings and orders; 11. have attended and completed the State Bar of Texas Advanced Criminal Law Course within the preceding twelve (12) months prior to the initial application to be place on the list of attorneys qualified for appointments in indigent criminal cases, if applying to be placed on the felony, misdemeanor or appellate lists; 12. have attended and completed a minimum of six (6) hours of continuing legal education pertaining to juvenile law within the preceding twelve (12) months or be board certified in juvenile law by the Texas Board of Legal Specialization, if applying to be placed on the juvenile list; and 13. have on file with the current local administrative district judge, the local administrative statutory county court judge and/or the Juvenile Board, as applicable, a completed and approved application for the appointment list in felony, misdemeanor or juvenile cases. (Form 9) E. Maintaining Eligibility To maintain eligibility, an attorney must: 1. meet the general standards for eligibility promulgated in this plan; 2. attend and complete the State Bar of Texas Advanced Criminal Law Course within the preceding two (2) reporting periods; 3. complete a minimum of six (6) hours of continuing legal education in criminal law during the preceding reporting period; A reporting period begins on January 1 and ends on December 31 of each year. Continuing legal education may include activities accredited under Section 4, Article XII, State Bar Rules, self-study, teaching at an accredited continuing legal education activity, attendance at a law school class or legal research-based writing; 4. annually submit on or before December 1 to the local administrative district judge (1) an application to be placed on the list of attorneys qualified for appointments in indigent criminal cases (Form 9); (2) an affidavit detailing the continuing legal education activities completed in the preceding reporting period, including the name 10

16 of each course, the date(s) attended, the name of the continuing legal education sponsor, and the number of credit hours obtained; (3) a copy of the attorney s most recent annual verification report from the State Bar of Texas-Minimum Continuing Legal Education Department; and (4) a letter of good standing from the State Bar of Texas dated within the sixty days prior to the commencement of the next reporting period; and 5. demonstrate a consistent record of: a. meeting promptly with assigned clients; b. maintaining reasonable contact with assigned clients; c. timeliness for court appearances; and d. preparation for court hearings and trials. F. Additional Standards for Misdemeanor List An attorney must have practiced in the area of criminal law for at least six months; or participate in a mentoring program to serve as co-counsel with one or more experienced criminal defense attorneys in three criminal (non-class C) jury trials, at least one of which is a jury trial in either the statutory county courts or district courts of Midland County; or be board certified in criminal law by the Texas Board of Legal Specialization. G. Additional Standards for Non-Capital Felony Lists 1. State Jail and Third Degree Felonies To qualify for appointment to any case for which the punishment range is state jail and third degree felony punishment range, including newly indicted cases, motions to revoke community supervision, and motions to revoke community supervision and adjudicate guilt, an attorney must have: a. practiced in the area of criminal law for at least one (1) year; and b. tried to verdict at least two criminal jury trials as lead or co-counsel; or participate in a mentoring program with one or more experienced criminal defense attorneys in at least two criminal jury trials in the statutory county courts or district courts of Midland County; or be board certified in criminal law by the Texas Board of Legal Specialization. 2. Second Degree and First Degree Felonies To qualify for appointment to any case for which the punishment range is that for a second and first degree felony, including newly indicted cases, motions to revoke probation, and motions to revoke probation and adjudicate guilt, an attorney must have: 11

17 a. practiced in the area of criminal law for at least three (3) years; and b. tried to a verdict at least three (3) criminal (non-class C) jury trials as lead counsel, at least two of which were felony jury trials; or be board certified in criminal law by the Texas Board of Legal Specialization. H. Additional Standards for Capital Felony List 1. Lead trial counsel must be on the list of attorneys approved by the local selection committee of the Seventh Administrative Judicial Region of Texas for appointment as lead trial counsel in death penalty cases, as provided in Article , Texas Code of Criminal Procedure. 2. Second chair counsel must be on the list of attorneys approved by the local selection committee of the Seventh Administrative Judicial Region of Texas for appointment as lead trial counsel or second chair counsel in death penalty cases, as provided in Article , Texas Code of Criminal Procedure. 3. Lead appellate counsel must be on the list of attorneys approved by the local selection committee of the Seventh Administrative Judicial Region of Texas for appointment as lead appellate counsel in death penalty cases, as provided in Article , Texas Code of Criminal Procedure. I. Additional Standards for Appellate and Writ List 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 a least three criminal appellate briefs or postconviction 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 one year or more. J. Additional Standards for Mental Illness List An attorney must: 1. have one year experience in handling mental illness applications (through serving as hired counsel, volunteering to serve as co-counsel or observation of a least three mental illness hearings); 12

18 2. become knowledgeable with the provisions of the Texas Health and Safety Code; and 3. have completed at least three hours of approved continuing legal education in the representation of mentally ill persons. VI. APPOINTMENT PROCEDURES A. Judicial Appointment After reviewing the Affidavit Regarding Indigence (Form 4), the Financial Information Statement (Form 5) and such other information bearing on the financial status of the defendant as the judge deems proper, and after determining the defendant qualifies for the appointment of counsel, the judge shall enter an order (Form 7) not later than 72 hours after the judge receives the defendant's request for appointment of counsel. The defendant shall be notified of such appointment. B. Misdemeanor, Felony and Capital Felony Cases Upon receiving a request for appointed counsel and making a finding of indigence, the judge making the appointment shall review the appropriate list of attorneys and make the appointment on a rotating basis in accordance with Article 26.04, Texas Code of Criminal Procedure. For good cause, the appointing judges may depart from the appointment rotation. To be appointed at arraignments, the attorney must be present in court. C. Mental Illness Cases Upon receiving a request for appointed counsel and making a finding of indigence, the judge making the appointment shall review the appropriate list of attorneys and make the appointment with the first available attorney, due to the time restrictions imposed by statute. D. Extradition Cases Upon receiving a request for appointed counsel and making a finding of indigence, the judge making the appointment shall review the appropriate list of attorneys and make the appointment with the first available attorney, due to the time restrictions imposed by statute. E. Duration of Appointment The appointed attorney shall represent the defendant until (1) a judgment of conviction, acquittal or dismissal is signed; (2) post trial proceedings are completed; (3) an appeal to an intermediate court of appeals is exhausted; (4) the attorney is removed by the court in accordance with this plan; or (5) the attorney is replaced by other counsel. 13

19 F. Appeal At the conclusion of all trial proceedings, including any post-trial motions, if an indigent defendant wishes to appeal, the judge of the court where the case is pending shall appoint an attorney from the appellate list, in accordance with the procedures set forth herein. G. Multiple Cases with Same Defendant Notwithstanding the foregoing procedures, a judge may appoint as the attorney in the case, the attorney representing the defendant in other pending cases, so long as the attorney meets the qualifications for appointment in all of the cases. H. Emergency Appointment If no attorney meeting the continuing legal education or board certification requirements required in Section V is available by the time an attorney must be appointed in a case, another attorney may be appointed. I. Automatic Assignments The levels of criminal appointments in Midland County are 1 st degree, 2 nd degree, 3 rd degree and state jail felonies, misdemeanors, juvenile, appointments. If an attorney is approved for a higher level of cases, the attorney will automatically be placed on the lower level cases unless the attorney specifically requests to be exempted from a specific level of case, subject to approval of the District and County Court at Law Judges. VII. REMOVAL OF APPOINTED COUNSEL A. Judicial Removal from Appointment Lists An attorney may be removed from one or more appointment lists by a majority of the judges, whenever the judges determine that the attorney: 1. has twice or more failed to contact or interview clients in a timely manner as required by Article 26.04(j)(1), Code of Criminal Procedure; 2. has twice or more been removed from a case in the previous twelve (12) month period; 3. has submitted a claim for legal services not performed as specified in Article 26.05(e), Code of Criminal Procedure; 4. fails to maintain compliance with each of the appointment list guidelines; 14

20 5. has not been found by a federal or state court to have rendered ineffective assistance of counsel during the trial of any criminal case nor filed documents admitting having rendered ineffective assistance of counsel in any criminal case; 6. has violated a rule of professional responsibility; 7. has been convicted of or received a deferred adjudication for any offense, other than an offense punishable by fine only; 8. is under indictment or being formally charged with an offense, other than an offense punishable by a fine only; 9. has intentionally misrepresented statements on the application for the appointment list; 10. has accepted an appointment for an offense level for which the attorney has not been approved by a majority of the judges; or 11. has engaged in conduct constituting good cause for removal. The judges may, in their discretion, remove an attorney from one list while continuing to approve the attorney for another list. B. Suspension from Appointment Lists As an alternative to removal, an attorney may be suspended from receiving any appointments under this plan by a majority of the judges, whenever the judges determine that the attorney has failed to comply with the requirements imposed upon counsel by this plan. An initial suspension shall be for a period not to exceed 90 days. Any action necessitating a second suspension may be for a period of not less than 180 days or be grounds for removal as set forth above. C. Voluntary Sabbaticals from Appointment Lists At any time, upon notice and for good cause shown, an attorney or a judge may request that the attorney be placed on a temporary sabbatical from appointments to represent indigent defendants. Good cause may include various factors including illness, workload and scheduling difficulties. Should the attorney desire to be placed on a list at the conclusion of a voluntary sabbatical, the attorney must comply with all plan requirements in effect at the time the voluntary sabbatical is concluded. D. Judicial Removal from Case 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: 15

21 1. counsel's failure to appear at arraignment or a court hearing, or failure to comply with the requirements imposed upon counsel by this plan; 2. current information about the defendant and the charges against the defendant indicates that another qualified attorney is appropriate for the defendant under these rules; 3. replacement of appointed counsel in a death penalty case is required under Article (e), Texas Code of Criminal Procedure; 4. the appointed counsel shows good cause for being removed. Good cause includes various factors such as illness, workload and scheduling difficulties; 5. the defendant requests an attorney, other than trial counsel, for appeal or postconviction habeas corpus proceedings; or 6. the defendant shows good cause for removal of counsel, including counsel's persistent or prolonged failure to communicate with the defendant. E. 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. VIII. RESPONSIBILITIES OF COURT APPOINTED COUNSEL A. Attorney Contact with the Defendant 1. The appointed attorney shall secure a copy of the magistrate s file from the District Clerk s office and shall make a reasonable effort as required under Article 26.04(j)(1), Texas Code of Criminal Procedure to contact the defendant by the end of the first working day after the date of the appointment by mail, facsimile, telephone or in person. 2. By the end of the third working day after the date of the appointment, the appointed attorney shall have a person to person conference with the defendant, if the defendant is incarcerated. 3. By the end of the seventh working day after the date of the appointment, the appointed attorney shall have a person to person conference with the defendant, if the defendant is not incarcerated. 16

22 B. Attorney Confirmation of Acceptance of Appointment The appointed attorney is required to provide the District Clerk, by the end of the tenth working day after the date of the appointment, a written confirmation (Form 10) that the attorney has: 1. received the notice of appointment and a copy of the magistrate s file; 2. made the reasonable effort required under Article 26.04(j)(1), Texas Code of Criminal Procedure to contact the defendant by the end of the first working day after the date of the appointment; and 3. had a person to person conference with the defendant by the end of the third working day after the date of the appointment, if the defendant was incarcerated. 4. had a person to person conference with the defendant by the end of the seventh working day after the date of the appointment, if the defendant was not incarcerated. C. Maintain Reasonable Contact with the Client An appointed attorney shall maintain reasonable contact with a defendant. Reasonable contact means prompt response to telephone calls from the defendant and sufficient personal jail visits or office conferences to keep the defendant informed of the status of the case. If a defendant is incarcerated, the attorney shall maintain contact and confer with the defendant every 14 days at a minimum. In the event prompt contact with an incarcerated defendant is not feasible, the attorney shall notify (1) the appointing judge if the case is unindicted or (2) the presiding judge of the court if the case is indicted. D. Appear at All Court Hearings IX. APPOINTMENT OF INVESTIGATORS AND EXPERTS A. The courts will appoint investigators and experts, as required by law, which are reasonable and necessary to aid appointed counsel in the defense of indigent defendants in felony cases. B. Appointed counsel in capital and noncapital cases shall file motions requesting the appointment of investigators and experts which are reasonable and necessary to the defense of the defendant, setting forth the name of the proposed investigator(s) or expert(s) to be retained and the estimated expense related to such appointment. The appropriate court may enter orders regarding such appointment(s), with or without a hearing. 17

23 C. In a capital case, appointed counsel desiring an ex parte appointment of an investigator or expert, shall file motions requesting the appointment of investigators and experts which are reasonable and necessary to the defense of the defendant, setting forth the name of the proposed investigator(s) or expert(s) to be retained and the estimated expense related to such appointment, and present such motions directly to the court in which the case is pending. If the judge approves of the ex parte appointment, orders pertaining to the same shall be filed with the clerk of the court, but retained by the court, until after trial. X. JUVENILE PROCEEDINGS A. Designation of Responsibility for Proper Administration of Plan The Juvenile Board of Midland County, consisting of the district, statutory county court and the constitutional county court judges of Midland County, designates the juvenile court judge as the person who is primarily responsible for the administration of the procedures of this plan relating to juveniles. B. Appointment of Counsel for the Detention Process When a juvenile enters the juvenile justice system, contract counsel is immediately appointed without inquiring whether the child or the child's parents are indigent and without requiring a request for counsel. Contract counsel remains the child s counsel throughout the detention process. The Juvenile Board provides contract counsel for detention hearings, so that each child facing a possible detention is represented. The Juvenile Board's contract counsel is an independent contractor who represents each child in the detention hearings for a fixed fee per child, per new detention. The contract counsel remains the child's attorney, unless and until a formal petition or motion to modify is filed. C. Appointment of Counsel for Formal Petition or Motion to Modify 1. When a formal petition or motion to modify is filed with the juvenile court, the designated juvenile judge's court administrator immediately assigns appointed counsel for the child from the approved juvenile appointment list on a rotational basis. If the State's filing seeks a modification, the original counsel who served during the adjudication stipulation or trial will be appointed, if possible, even if this causes an appointment out of the rotational sequence, because of such counsel's familiarity with the child, family and the juvenile's history. 2. The designated juvenile court judge, his/her designee, or a member of the Juvenile Board shall sign an order making the formal appointment of the counsel assigned by the court's administrator. Except as to a modification motion appointment, referred to in C.1. above, any departure from the rotational sequence must be approved by the juvenile court judge and written findings made in the record. 18

24 D. Responsibilities of Arresting Officer and Detaining Agency 1. Unless a juvenile is arrested pursuant to a directive to apprehend, an arrest warrant, capias or other order of a magistrate or judge, an arresting officer must complete and file an offense report accusing the juvenile of a jailable misdemeanor, any felony, contempt of court, driving while intoxicated, other delinquent conduct or conduct indicating a need for supervision as defined in Section 51.03, Texas Family Code at the time the juvenile is booked into the Barbara Culver Juvenile Justice Center. No juvenile shall be detained in the Barbara Culver Juvenile Justice Center, unless the above conditions are satisfied. 2. Runaways from foreign jurisdictions and children subject to the Uniform Interstate Compact on Juveniles may also be detained and will be handled pursuant to the provisions of the Compact. 3. Runaways from Midland County or the local area may be detained for only 24 hours or less in either the Barbara Culver Juvenile Justice Center or in a contract facility provided by the Juvenile Probation Department, such as "The Stay Together Program" of High Sky Children's Ranch, Midland, Texas. E. Bond The Juvenile Code does not provide for bonds in juvenile proceedings. The referring law enforcement agency, the Director of the Juvenile Probation Department or the juvenile court judge may release the juvenile to the juvenile's parent(s) or legal guardian(s) prior to the detention hearing. Conditions of release may be imposed. F. Detention Hearing Within two working days after the initial detention of the juvenile, the juvenile court judge or designated magistrate shall conduct the detention hearing, at which the juvenile will be represented by counsel, either appointed, retained or contract counsel. G. Release Juvenile detainees will be released after the expiration of ten working days, unless good cause is shown to request a subsequent detention hearing. Conditions of release may be imposed. H. Appointment Procedures The juvenile court judge or the juvenile court judge s designee shall make an appointment as provided in this section. 19

25 I. Standards for Eligibility and Judicial Approval for Placement on List of Attorney to Serve as Court Appointed Counsel in Juvenile Proceedings 1. Attorney Lists The Juvenile Board shall review and reform the lists of attorneys eligible for court appointments in juvenile proceedings at least annually. Such lists shall be filed with the County Clerk, posted on the bulletin board in the designated juvenile court judge s office and made available to the public upon request and the payment of a reasonable amount to cover the cost of reproduction at the County Clerk s office, the office of the juvenile court judge or the Barbara Culver Juvenile Justice Center. 2. Attorney Application An attorney may, at any time, file a written application for appointments in juvenile proceedings as provided in this section. To be eligible for placement on a juvenile proceeding list, the attorney must meet the minimum general qualifications set forth in Section V hereof and the additional qualifications to represent a defendant set forth in this section. 3. Juvenile Board Approval Notwithstanding an attorney meeting the objective qualifications to be appointed in juvenile proceedings, an attorney s name may be placed on a specific appointment list only if the Juvenile Board approves the attorney s placement on each such list. 4. Eligibility a. To be eligible for placement on the juvenile list, the attorney must meet the minimum general standards of eligibility set forth in Section V(D). b. In addition, counsel applying for appointments in all juvenile proceedings must: 1. annually complete a minimum of six (6) hours of continuing education pertaining to juvenile law during each twelve (12) month reporting period, or 2. be board certified in juvenile law by the Texas Board of Legal Specialization. Continuing legal education may include activities accredited under Article XII, Section 4, State Bar Rules, self-study, teaching at an accredited continuing legal education activity, attendance at a law school class or legal research-based writing. 20

26 c. Qualifications for juvenile appointment cases and mentoring requirements: 1. The Juvenile Board recognizes the need for a difference in qualifications and experience necessary for appointment to trial and appellate cases. (i) Trial and appellate cases in which there is an allegation that there is conduct indicating a need for supervision or delinquent conduct and commitment to the Texas Youth Commission is not an authorized disposition shall require counsel qualified and approved for misdemeanor cases. (ii) Trial and appellate cases in which there is an allegation that there is delinquent conduct and commitment to the Texas Youth Commission without a determinate sentence is an authorized disposition shall require counsel qualified and approved for state jail and 3 rd degree felony cases. (iii) Trial and appellate cases where determinate sentence proceedings have been initiated or proceedings for discretionary transfer to criminal court have been initiated, shall require counsel qualified and approved for capital or 1 st and 2 nd degree felony cases. 2. Applicants for juvenile appointments who are not qualified under I.4.a. and b. above, must participate in a mentoring program with approved counsel by twice observing an adjudication/disposition hearing and consulting with either State s attorney or approved counsel as to the juvenile hearings involving modifications and waivers of jurisdiction (Family Code, Section 54.02); 3. Applicants for appointment to juvenile appellate cases who have practiced at least one year, but have never conducted a juvenile appeal must participate in a mentoring program by consulting with the State's attorney or an appellate-approved counsel as to the intricacies of juvenile appellate procedure, particularly as to how it differs from adult criminal appeals. Upon verification and successful completion of the mentoring process, counsel may be considered for appointment to juvenile appellate cases. 5. Duration of Appointment The appointed attorney shall represent the juvenile until the charges are dismissed, the juvenile is acquitted, post-trial proceedings are completed, an appeal is exhausted, the attorney is relieved of his/her duties by the court or the attorney is replaced by other counsel. 6. Appeal At the conclusion of the juvenile proceedings, including any post-trial motions, if an indigent juvenile wishes to appeal, the judge of the court where the case is pending 21