Bexar County Bexar County Criminal District Criminal District

Courts PlanCourts Plan

Standards & Procedures Related to Standards & Procedures Related to Appointment of Counsel for Appointment of Counsel for

Indigent DefendantsIndigent Defendants

““Human wheels spin round and round, while the clock Human wheels spin round and round, while the clock keeps the pace.”keeps the pace.”

-John Cougar Mellencamp-John Cougar Mellencamp

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Presenting: The “Wheel” model of Indigent Defense in the Criminal District Courts of Bexar County

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Article 26.04 of the Texas Article 26.04 of the Texas Code of Criminal Code of Criminal Procedure outlines the Procedure outlines the “Procedures for Appointing “Procedures for Appointing Counsel”Counsel”

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Senate Bill 7 This bill became law on January 1, 2002. The Criminal District Court Judges

prepared in 2001 by forming committees with relevant interested parties, including defense bar and Commissioners Court

- Magistration Committee- Attorney Qualifications Committee- Fee Schedule Committee

Which resulted in……….

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Standards & Procedures Related to Appointment of Counsel for Indigent

Defendants in the Bexar County

Criminal District Courts

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Six Categories:Six Categories:

1)1) Procedures for Timely Appointment of CounselProcedures for Timely Appointment of Counsel

2)2) Procedures and Financial Standards for Procedures and Financial Standards for Determining Whether a Defendant is IndigentDetermining Whether a Defendant is Indigent

3)3) Selection and Appointment of CounselSelection and Appointment of Counsel

4)4) Selection and Appointment of Counsel in Selection and Appointment of Counsel in Death Penalty CasesDeath Penalty Cases

5)5) Notice of Appointment, Determination, and Notice of Appointment, Determination, and Contact with the DefendantContact with the Defendant

6)6) Attorney Fee Schedule and Compensation of Attorney Fee Schedule and Compensation of Appointed AttorneysAppointed Attorneys

Focus today is on Focus today is on

The basic spokes of the wheelThe basic spokes of the wheel

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5 Felony Lists:

• state jail felonies

• 2nd & 3rd degree felonies

• 1st & 3(g) felonies

• state jail & 3rd degree appeals

• 1st, 2nd, & 3(g) appeals

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The Felony Public Appointment Lists:

Attorneys must apply to be included on each public appointment list. New

applications, supplemental applications, and exceptions are reviewed and voted

on by the judges twice a year.

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““Quality Control”:Quality Control”:Judges review the lists and can vote to Judges review the lists and can vote to

remove an attorney for a variety of remove an attorney for a variety of statutory reasons and other reasons statutory reasons and other reasons

outlined in the plan.outlined in the plan.For instance,For instance, the attorney no longer meets the objective the attorney no longer meets the objective

qualifications for that list, orqualifications for that list, or the attorney is not fully competent to the attorney is not fully competent to

adequately handle the category of cases, oradequately handle the category of cases, or the attorney intentionally or the attorney intentionally or repeatedly violates his obligationsrepeatedly violates his obligationsCitation: Bexar County Criminal District Courts Plan, Local Rule 5.22(j)Citation: Bexar County Criminal District Courts Plan, Local Rule 5.22(j)

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In December 2010, In December 2010, “WARNING"“WARNING" letters letters were sent to about 20 attorneys who were sent to about 20 attorneys who were reported by judges and court were reported by judges and court

coordinators to be chronically late to coordinators to be chronically late to court, regular no-shows, or whom the court, regular no-shows, or whom the

courts have consistent difficulty courts have consistent difficulty contacting.  The judges will review these contacting.  The judges will review these specific attorneys in June and if problems specific attorneys in June and if problems have continued, will consider removing have continued, will consider removing them from our felony court appointed them from our felony court appointed

attorney lists.attorney lists.

  

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In their plan, the Criminal District Court Judges have designated Pre-Trial Services as the “appointing” authority to make assignments of court appointed attorneys. “Assignment” of an

attorney is made by Pre-Trial Services:

• After the defendant has requested one or the judge has determined the need for one

• After the defendant has been found to be indigent or indigence is waived

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““The computer will select and The computer will select and provide an attorney’s name to the provide an attorney’s name to the

Pre-Trial Services Clerk, after Pre-Trial Services Clerk, after analyzing the individual analyzing the individual

requirements of the request and requirements of the request and utilizing the following filters:utilizing the following filters:

• LanguageLanguage• Degree of offenseDegree of offense• Availability of attorneyAvailability of attorney• Date of last Date of last

appointment”appointment”

Citation: Bexar County Criminal District Courts Citation: Bexar County Criminal District Courts Plan, Local Rule 5.22(l)(2)Plan, Local Rule 5.22(l)(2)

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Therefore, “the attorney’s name Therefore, “the attorney’s name selected by the computer to be selected by the computer to be appointed to the case should be appointed to the case should be

one that…..one that….. Meets any language requirement (if possible)Meets any language requirement (if possible) Is qualified to take appointments for that Is qualified to take appointments for that

degree of offensedegree of offense Is not unavailable, Is not unavailable, And has the oldest date of last appointment.And has the oldest date of last appointment.

This will result in a This will result in a system of rotation””

Citation: Bexar County Criminal District Courts Plan, Local Rule 5.22(l)(3)Citation: Bexar County Criminal District Courts Plan, Local Rule 5.22(l)(3)

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Number of Attorneys on the Number of Attorneys on the Felony Appointment ListsFelony Appointment Lists

As of January 1, 2011, there are As of January 1, 2011, there are 408 408 attorneys on the felony appointment attorneys on the felony appointment

lists.lists.

Total Felony Cases Added:Total Felony Cases Added:

20072007 16,343 16,343

20082008 15,489 15,489

20092009 17,110 17,110

20102010 17,474 17,47414,000

14,500

15,000

15,500

16,000

16,500

17,000

17,500

2007 2008 2009 2010

*These numbers reflect cases added during a calendar *These numbers reflect cases added during a calendar year.year.

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Number of Felony Court Number of Felony Court Appointed Attorney Cases Paid:Appointed Attorney Cases Paid:

FY 07-08:FY 07-08: 9,9649,964

FY 08-09:FY 08-09: 11,75611,756

FY 09-10:FY 09-10: 11,74211,7429,000

9,500

10,000

10,500

11,000

11,500

12,000

FY 2007-2008

FY 2008-2009

FY 2009-2010

*These numbers reflect vouchers paid during a fiscal *These numbers reflect vouchers paid during a fiscal yearyear

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Felony Appointment Rate:  Felony Appointment Rate: 

20072007  59.46%  59.46%

           

20082008 63.93% 63.93%            

20092009 68.45% 68.45%

20102010 68.62% 68.62% 54.00%

56.00%

58.00%

60.00%

62.00%

64.00%

66.00%

68.00%

70.00%

2007 2008 2009 2010

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Pre-Auditor Voucher Process Pre-Auditor Voucher Process in the Criminal District Courts:in the Criminal District Courts:

       Voucher is signed and sworn to by the Voucher is signed and sworn to by the

defense attorneydefense attorney Reviewed for accuracy by the judge and/or Reviewed for accuracy by the judge and/or

court coordinatorcourt coordinator If disputed, judge can forward to the If disputed, judge can forward to the

Voucher Recommendation CommitteeVoucher Recommendation Committee If disapproved by the judge, voucher can If disapproved by the judge, voucher can

be referred to the committee by the be referred to the committee by the defense attorney, investigator, or expert defense attorney, investigator, or expert affected by the disapprovalaffected by the disapproval

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Since its inception in Since its inception in 20072007, the Voucher , the Voucher Recommendation Committee has Recommendation Committee has

reviewed reviewed 153153 vouchers and vouchers and recommended reductions in vouchers recommended reductions in vouchers

amounting to over amounting to over $141,551.65$141,551.65..

After the judge signs off on the voucher, After the judge signs off on the voucher, it is sent to the Auditor's office for it is sent to the Auditor's office for

processing.processing.

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System is tweaked every couple System is tweaked every couple of years, but recently due to of years, but recently due to

review of system by TFID:review of system by TFID:► In-court appointments now going through Pre-Trial In-court appointments now going through Pre-Trial

Services and being made by the system whenever Services and being made by the system whenever possiblepossible

► Some courts still utilizing “next five names” Some courts still utilizing “next five names” procedureprocedure

► Working with BCIT and PTS to update attorney Working with BCIT and PTS to update attorney appointment systemappointment system

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Article 26.04(a) Article 26.04(a) Code of Criminal ProcedureCode of Criminal Procedure

““The JUDGES of the county courts, The JUDGES of the county courts, statutory county courts, and district statutory county courts, and district courts trying criminal cases in each courts trying criminal cases in each county, by local rule, shall adopt and county, by local rule, shall adopt and publish written countywide procedures publish written countywide procedures for timely and fairly appointing counsel for timely and fairly appointing counsel for an indigent defendant in the county for an indigent defendant in the county arrested for or charged with a arrested for or charged with a misdemeanor punishable by confinement misdemeanor punishable by confinement or a felony.”or a felony.”

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Texas Administration Code Texas Administration Code §174.10:§174.10:

“Appointing Authority”“Appointing Authority” The appointing authority is the:The appointing authority is the:

(1) Judge or judges who have authority (1) Judge or judges who have authority to establish an indigent defense plan to establish an indigent defense plan and approve attorneys to represent and approve attorneys to represent indigent defendants in criminal cases indigent defendants in criminal cases under under Article 26.04, Code of Criminal Procedure; ;

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Court Appointed Attorney Assignments

Total attorneys on District Court wheel = 408

Total attorneys on County Court wheel

= 341

Total attorneys on both wheels = 514

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Misdemeanor Misdemeanor Appointment ListAppointment List

• Currently have 344 attorneys on the listCurrently have 344 attorneys on the list• New Applications accepted anytimeNew Applications accepted anytime• Annual Review of CLE hours due every Annual Review of CLE hours due every

JanuaryJanuary

6 hours Criminal Law and6 hours Criminal Law and

3 hours Immigration Law3 hours Immigration Law• List approved by Judges 3 times a yearList approved by Judges 3 times a year• Attorneys removed if request in writing or Attorneys removed if request in writing or

non-compliance with CLE requirementsnon-compliance with CLE requirements

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Attorney may be removed Attorney may be removed if:if:

• has twice or more failed to contact or interview has twice or more failed to contact or interview clients in a timely mannerclients in a timely manner

• has submitted a claim for legal services not has submitted a claim for legal services not performed as specified in Article 26.05(e), CCP;performed as specified in Article 26.05(e), CCP;

• fails to maintain compliance with each of the fails to maintain compliance with each of the appointment list guidelines;appointment list guidelines;

• has been found by a court to have provided has been found by a court to have provided ineffective assistance of counsel;ineffective assistance of counsel;

• has violated a rule of professional responsibility;has violated a rule of professional responsibility;

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Attorney may be removed if: Attorney may be removed if: (cont’d)(cont’d)

• has been convicted of or received a deferred has been convicted of or received a deferred adjudication for any an offense, other than an adjudication for any an offense, other than an offense punishable by fine only;offense punishable by fine only;

• is under indictment or being formally charged is under indictment or being formally charged with an offense, other than an offense punishable with an offense, other than an offense punishable by a fine only; orby a fine only; or

• has intentionally misrepresented statements on has intentionally misrepresented statements on the application for the appointment list.  the application for the appointment list. 

• An attorney may also be removed from the An attorney may also be removed from the appointment list for another stated good cause.appointment list for another stated good cause.

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Total Misdemeanor Cases Total Misdemeanor Cases Appointed:Appointed:

• FY’ 10---28,631FY’ 10---28,631• FY’ 09---28,308FY’ 09---28,308• FY’ 08---29,289FY’ 08---29,289• FY’ 07---32,561FY’ 07---32,561• FY’ 06---21,390FY’ 06---21,390 0

5,000

10,000

15,000

20,000

25,000

30,000

35,000

FY2006

FY2007

FY2008

FY2009

FY2010

**Bexar County Auditor’s Office/ FY Oct 1st-Sept **Bexar County Auditor’s Office/ FY Oct 1st-Sept 30th)30th)

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Total Misdemeanor Total Misdemeanor Cases Added:Cases Added:

• 2010---45,7282010---45,728

• 2009---46,9752009---46,975

• 2008---45,6972008---45,697

• 2007---53,8462007---53,846 40,000

42,000

44,000

46,000

48,000

50,000

52,000

54,000

2007 2008 2009 2010

**Task Force on Indigent Defense Website—Formula Grant **Task Force on Indigent Defense Website—Formula Grant Program County Data Sheet/ Calendar yearProgram County Data Sheet/ Calendar year

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Appointment rates for Appointment rates for misdemeanor casesmisdemeanor cases

2007--60.47 %2007--60.47 %

2008--64.09%2008--64.09%

2009--60.30%2009--60.30%

2010--62.63%2010--62.63%

58.00%

59.00%

60.00%

61.00%

62.00%

63.00%

64.00%

65.00%

2007 2008 2009 2010

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Pre-Auditor Voucher Review Pre-Auditor Voucher Review in County Courtsin County Courts

• Voucher signed by Attorney Voucher signed by Attorney • Reviewed by Judge and/or County Court Reviewed by Judge and/or County Court

Administration (Staff Attorney) if over $500Administration (Staff Attorney) if over $500• If need for reduction, court admin will discuss If need for reduction, court admin will discuss

with Judge and send memo outlining reasonswith Judge and send memo outlining reasons• If reduced, attorney can appeal to Judge Peeples, If reduced, attorney can appeal to Judge Peeples,

Administrative Judge 4Administrative Judge 4thth Judicial Region Judicial Region• Once signed, given to court clerk to make Once signed, given to court clerk to make

computer entry and forward to Auditor’s officecomputer entry and forward to Auditor’s office

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In-court appointment In-court appointment system as a result of TFID system as a result of TFID

report:report:• All attorneys required to be on misdemeanor All attorneys required to be on misdemeanor wheel (if on felony wheel, can be given wheel (if on felony wheel, can be given appointment through *IDAAS even if not on appointment through *IDAAS even if not on misdemeanor wheel)misdemeanor wheel)

• Pre-trial services given directive to interview all Pre-trial services given directive to interview all misdemeanor MTRs for a Court appointed misdemeanor MTRs for a Court appointed attorney (CAA)attorney (CAA)

• In-court appointments using attorney list rotationIn-court appointments using attorney list rotation—each court appoints off next 30-31 names on list —each court appoints off next 30-31 names on list per month. (Will utilize until coordinators get per month. (Will utilize until coordinators get access to *IDAAS system).access to *IDAAS system).

• Defendants incarcerated on 7Defendants incarcerated on 7thth day after arrest to day after arrest to be given CAA by Pre-trial services.be given CAA by Pre-trial services.

*Indigent Defendant Attorney Appointment System*Indigent Defendant Attorney Appointment System

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QUESTIONS??