A Primer for Court Appointed

Attorneys in Texas

Randy Wilson

P.O. Box 2875

Abilene, Tx 79604

(325)677-4678

June 2013

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Primer for Court Appointed Attorneys

With the advent of Senate Bill 7 (Texas Fair Defense Act) we all thought that the quality as well as the quantity of legal representation of indigents in criminal cases would improve. Unfortunately, that has not happened. While there has been some progress, it varies throughout the State of Texas from County to County, and often from Judge to Judge.

What has happened is that the plans and Anon plans@ throughout the State of Texas are being followed in some cases and in many cases they are not. The emphasis by the various trial courts throughout the State has not been on providing competent legal representation at a reasonable price to create an equal playing field, but on the Amovement of cases on each court=s docket@ to provide good reports at the end of each fiscal year. There have been all the statements made in public concerning higher quality representation, more realistic attorneys= fees, and increased ability to have investigators and experts available to the indigent defendant. Unfortunately, the general public could care less and there has been a movement by county commissioners, and by various judges to circumvent and in some cases refuse to follow the edicts set forth in the Texas Fair Defense Act.

So where are we? It depends upon where you practice as a criminal defense attorney. In some respects, there have been some major advances made and in other areas there have been intentional refusals to follow the act. The sad portion of the act is there are few remedies to anyone who wishes to challenge the refusal to follow the terms by a county or by a court. In fact, the penalties are nominal, and until the legislature puts some teeth in for enforcement of the act, it will be for the most part a Apaper tiger@.

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Look at the problems in West Texas concerning defense of prison cases by outside counsel. The courts have an extremely hard time getting attorneys to accept these appointments as the State refuse to pay and the county will only pay the minimum of $250.00. This has led to a massive backlog of prison cases in this part of the State and an absolute void as far as finding many attorneys who would be willing to accept these appointments. The Counsel for Offenders is doing the best that it can, but it is often Aconflicted out@ and unable to represent inmates in many of these cases. Surprisingly, the Office of the Special Prosecutor, who prosecutes these cases seems to grind on, however, I have been advised that even their office is subject to having their budget cut, and losing staff attorneys and employees. Another example, is in one Texas county, the court will not pay but a flat fee, even if you have spent hours in preparation for trial and your client pleads at the last moment. In several of the rural counties, they do not have enough attorneys to appoint in those counties, so the courts attempt to recruit attorneys in outlying counties, most will not pay the attorneys for the travel time to and from the court and most will not pay travel time to and from the jail to confer with the client. Some counties, but relatively few will pay “some” expenses. We all have been in the situation whereby you need an expert or an investigator, and the court will try to limit you to a specific amount of funds, such as $500.00 maximum. We will discuss more on this at a later point in the presentation.

In looking at indigent representation, I divide the attorneys into three categories:

  1. Those who make the majority of their income off appointments;
  2. Those who accept appointments, but do not rely on same for the majority of their income;
  3. Public defenders.

ATTORNEYS WHO MAKE THE MAJORITY OF THEIR INCOME OFF APPOINTMENTS

There are many attorneys whose existence is totally reliant on their appointment to

represent indigents in criminal cases for the major portion of their income. There are many pitfalls involved in this situation which should be and can be avoided.

If you are in this situation you should be aware of some of the problems that can arise in representing these indigents at the behest of the judges in your area:

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  1. First, you can place yourself in a position with a judge or judges that could

control your law practice, be placed in a position where you are Abeholden=

to a certain judge or judges;

  1. Second, you can allow yourself to become more concerned with Aturning@ the case

than representing your client;

3.Third, you can overlook outstanding charges in other jurisdictions, blue warrants, motions to revoke, just to turn the case;

4.Fourth, you do not spend the necessary time to investigate the offense, witnesses, etc. because it is going to come out of your pocket or you flat cannot afford to spend your own money to subsidize the county.

These are common things that happen frequently with attorneys who rely heavily on court appointments. Too often, I see young lawyers who are afraid of making the judge or prosecutor mad if one thing or another is done on behalf of their client. They become worried that their actions could have an adverse effect upon receiving additional appointments and/or jeopardizing their dealings with prosecutors. It is imperative that you strive not to fall into this trap. For it is not just your livelihood you are dealing with. You are handling the future of human beings who are relying on you for protection from overzealous prosecutors and an adverse attitude of the courts and society embracing law and order that is permeating throughout our nation today.

Some common rules to follow in these situations are:

  1. Represent the interest of your client to the fullest extent.
  2. Do what has to be done, regardless of impact upon prosecutor or judge.
  3. Have compassion for your client and try to understand what it is like to be

locked up and have you for a lawyer.

  1. Keep your clients informed as to what is going on in his case, even if nothing

is going on.

  1. Spend the time to investigate your client=s case, including filing motions, getting

experts, etc.

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  1. Don=t Alean on@ your clients to take plea bargains, explain the options and allow your client to make decisions as to whether to accept or proceed to trial.
  2. Be ready to try any case. Remember as long as your client understands the risks involved, and is willing to accept those risks, it is his life, it is his freedom, and it is his decision as to whether to try the case or plead it out.
  3. Develop a system for handling your appointed cases. Use forms to make your work load lighter. Use form letters that can be easily transcribed from a computer in a matter of seconds. Develop a documentation program for documenting every minute you spend on a case, whether in your office, in the courthouse, or at the jail. Make sure that you keep your client informed of all developments or non developments in his case.
  4. Make sure that you detail your vouchers for payment with the following:
  5. Detailed explanation of each amount of time you spend on the case and break it down into classifications such as office conferences, jail conferences, conferences with prosecutor, conferences with court administrator, correspondence (detailing to whom and subject matter), drafting of pleadings and motions, legal research, investigation;
  6. Documentation of all expenses incurred and expenses paid by you;
  7. Documentation of collect telephone calls from jail with copies of your

telephone bill showing charges; and

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  1. Attach this documentation to your vouchers when they are submitted to the court. I suggest that you file a copy of your itemization with vouchers attached after the case is disposed of so that there will be a permanent record of your time and expense in the representation of this individual.
  1. Organize your visits to the jail to visit appointed clients to allow the maximum

amount of time with your clients, with the least time out of the office.

The days of submitting a voucher without an itemization are becoming a thing of the past. The itemization and the documentation will also provide a court at a later date a record of what you did as the appointed attorney in the case, should the accused claim ineffective assistance of counsel.

If you will devote the time and work necessary to the proper representation of these appointed clients, and give it your best, hopefully your client base will expand allowing you to depend less and less on court appointments for the major portion of your income.

ATTORNEYS WHO ACCEPT COURT APPOINTMENTS BUT DO NOT RELY ON THEM

The attorney who is on the list, the wheel or whatever, and receives appointments but does not rely on them for the majority of his income, can actually do a number of things to maximize the return on his time, effort and expenditures, but it takes some commitment, planning and effort to accomplish this.

First, I would suggest that you set up a procedure for handling the appointed case in such a way that it does not take from your fee paying caseload.

  1. Represent the interest of your client to the fullest extent, remember it is his case not yours;
  2. Do what has to be done, within reason, regardless of impact upon prosecutor or judge.
  3. Have some compassion for your client and try to understand what it is like to be

locked up and have you for a lawyer.

  1. Keep your clients informed as to what is going on in his case, even if nothing

is going on (simple form letter can make a lot of difference).

  1. Spend the time to investigate your client=s case, including filing motions, getting

experts, scheduling hearings, etc.

  1. Don=t Alean on@ your clients to take plea bargains, explain the options and allow your client to make decisions as to whether to accept or proceed to trial. Be ready to try any case. Remember as long as your client understands the risks involved, and is willing to accept those risks, it is his life, it is his freedom, and it is his decision as to whether to try the case or plead it out.
  2. Develop a system for handling your appointed cases. Use forms to make your work load lighter. Use form letters that can be easily transcribed from a computer in a matter of seconds. Develop a documentation program for documenting every minute you spend on a case, whether in your office, in the courthouse, or at the jail. It can be a simple as a time sheet, or use of a PDA, but keep records. Make sure that you keep your client informed of all developments or non developments in his case.
  3. Make sure that you detail your vouchers for payment with the following:
  4. Detailed explanation of each amount of time you spend on the case and break it down into classifications such as office conferences, jail conferences, conferences with prosecutor, conferences with court administrator, correspondence (detailing to whom and subject matter), drafting of pleadings and motions, legal research, investigation, in court time for motions, hearings, trials etc.;
  5. Documentation of all expenses incurred and expenses paid by you (don=t forget a reasonable charge for copies and postage as well);
  6. Documentation of collect telephone calls from jail with copies of your

telephone bill showing charges; and

  1. Attach this documentation to your vouchers when they are submitted to the court. I suggest that you file a copy of your itemization with vouchers attached with the clerk under the cause number, AFTER the case is disposed of so that there will be a permanent record of your time and expense in the representation of this individual. This could become important later on down the line if there is a claim of ineffective assistance of counsel;
  1. Organize your visits to the jail to visit appointed clients, perhaps on lunch hour or

on weekends, or after 5 p.m. or before 9 a.m. to keep your paying time free.

The Texas Fair Defense Act

The Texas Fair Defense Act amended several of the Sections of the Texas Code of Criminal Procedure. I will be discussing basically the following issues:

  1. Prompt access to appointed counsel
  2. Fair and neutral methods of selecting attorneys
  3. Qualifications for appointed counsel
  4. Financial standards and procedures for determining indigency
  5. Fees and expense for attorneys, experts, and investigators.

PROMPT ACCESS TO APPOINTED COUNSEL

The rules concerning appointment of counsel for an indigent are primarily found scattered among Articles 1.051, etseq, 15.06, 26.04, 15.17 of the Texas Code of Criminal Procedure.

First:When an indigent defendant requests court appointed counsel, he must have one appointed as follows:

  1. A county under 250,000 population----as soon as possible but not later than the end of the third working day that the court or the courts= designee receives defendant=s request for counsel.

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  1. A county over 250,000 population----as soon as possible but not later than the end of the first working day after the date that the court or the courts= designee receives defendant=s request for appointment of counsel.
  1. Counsel shall be appointed whether or not charges have been filed against the defendant if he requests appointment of counsel.

Second: The person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested take the person arrested or have him taken before some magistrate of the county or a bordering county. (In this regard, it can be done in person or by closed circuit television) When the person is taken before a magistrate the magistrate must:

  1. Give the basic warnings (Miranda); and
  2. Inform the person arrested of his right to request appointment of counsel if he cannot afford to hire one; and
  3. Shall inform person arrested of the procedures for requesting appointment of counsel in a manner that is understood by said person; and
  4. If need be provide assistance in the execution of necessary documentation to provide for appointment of counsel; and

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  1. If the person at this point requests appointment of counsel the magistrate shall without unnecessary delay but not longer than 24 hours from the time the person requests appointment of counsel appoint counsel for such person;
  2. In each such case there shall be a record made of:
  3. The magistrate informing the person of right to appointment of counsel; and
  4. The magistrate asking the person whether the person wants to request appointment of counsel; and
  5. Whether the person requested appointment of counsel;
  6. Record may consist of written forms or documentation authorized by the county under the terms of Article 26.04(a)

of the Texas Code of Criminal Procedure.

FAIR AND NEUTRAL METHODS OF SELECTION OF ATTORNEYS

Basically, the counties that have established plans are divided as follows:

Rotation:Appointing counsel by rotating or random assignment. 72% of the plans submitted use some type of rotation plan. Good quality rotation plans are found in Bell, Bexar (district courts), Collin, Harris (county courts), Harrison, Hildago, Lubbock, Maverick, Montgomery, Tarrant, Travis and Walker Counties.

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Public Defender Systems: Governmental or non-profit entity that employs attorneys to represent indigent defendants. 4% of the plans submitted use this system and every county already had a public defender system prior to the enactment of the Texas Fair Defense Act.

Contract Defender Systems: 4% of the plans submitted use this system and most have numerous problems built into them and probably

will not meet the standards of the act. This is where a county contracts with one or more attorneys to handle indigent defense.

Discretionary Systems:8% of the plans retain the judges= unlimited discretion in appointing an attorney that the judge considers appropriate for the case. The Fair Defense Act is designed to move away from this method. It is doubtful that these systems will meet the requirements of the Act, but many judges are extremely resistant to giving up on their discretionary powers in this area.

Mixed Systems:These are primarily a combination of public defender situations or contract defender systems to be used in conjunction with a backup appointment method for case overload or conflict situations. However, several counties are using this to circumvent the Act=s requirement for countywide indigent programs to be adopted by all the judiciary in the county working together as a whole.

No System:12% of the counties have submitted no plan by the time of this article, or intend to submit no plan.

In several counties in the State of Texas, the judiciary and the county commissioners have taken the position that they are not going to submit a plan of any type. Many other counties are going to make a concerted attack at the next session of the legislature for repeal of the Texas Fair Defense Act.