No payment is to be made to the attorney unless the judge approves the payment.

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Fair Defense Act -- Core Requirements
Introduction
Task Force Background
In January 2002, the 77
th
Texas Legislature established the Task Force on Indigent Defense
(“Task Force”). The mission of the Task Force is to improve the delivery of indigent defense
services through fiscal assistance and professional support to State, local judicial, county, and
municipal officials. The purpose of the Task Force is to promote justice and fairness to all
indigent persons accused of criminal conduct, including juvenile respondents, as provided by the
laws and constitutions of the United States and Texas. The Task Force is given a directive under
Tex. Gov’t Code § 71.062(b) to monitor local jurisdiction compliance with the Fair Defense Act
(“FDA”).
Goal
Promote local compliance and accountability with the requirements of the Fair Defense Act
through evidence-based practices and provide technical assistance to improve processes where
needed.
Core Requirements of the Fair Defense Act
1. Conduct prompt magistration proceedings:
• Inform and explain right to counsel to accused;
• Provide reasonable assistance to accused in completing necessary forms to request
counsel;
• Maintain magistrate processing records.
2. Determine indigence according to standard in local indigent defense plan.
3. Establish minimum attorney qualifications.
4. Appoint counsel promptly.
5. Institute a fair, neutral, and non-discriminatory attorney selection process.
6. Promulgate standard attorney fee schedule and payment process.
Core requirement 1. Conduct prompt and accurate magistration proceedings:
• Inform and explain right to counsel to accused;
• Provide reasonable assistance to accused in completing necessary forms to request
counsel;
• Maintain magistrate processing records.
Statutory Provisions
The Fair Defense Act (FDA) requires that magistration is conducted without unnecessary delay,
but not later than 48 hours after the person is arrested. At magistration, the arrestee is to be
informed in clear language of the following:
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- the accusation against him/her and of any affidavit filed;
- the right to retain counsel;
- the right to remain silent;
- the right to have an attorney present during any interview with peace officers or
attorneys representing the state;
- the right to terminate the interview at any time;
- the right to have an examining trial; and
- the person's right to request the appointment of counsel if the person cannot afford
counsel.
The magistrate shall inform the person arrested of the procedures for requesting appointment of
counsel. If the person does not speak and understand the English language or is deaf, the
magistrate shall inform the person in a manner consistent with Articles 38.30 and 38.31, as
appropriate. The magistrate shall ensure that reasonable assistance in completing the necessary
forms for requesting appointment of counsel is provided to the person at the same time. Tex.
Code Crim. Proc. Art. 15.17(a). If the arrestee requests appointed counsel, the arrestee is
required to complete under oath a questionnaire concerning his financial resources. Tex. Code
Crim. Proc. Art. 26.04(n).
The record of the magistrate’s warning must comply with Article 15.17(e), and must contain
information indicating:
(1) the magistrate informed the person of the person's right to request appointment of
counsel;
(2) the magistrate asked the person whether the person wanted to request appointment of
counsel; and
(3) whether the person requested appointment of counsel.
This record may consist of written forms, electronic recordings, or other documentation as
authorized by procedures adopted in the county under Article 26.04(a). Tex. Code Crim. Proc.
Art. 15.17(e)-(f).
Core Requirement 2. Determine indigence according to standard in local
indigent defense plan:
Statutory Provisions
Each jurisdiction must establish procedures and financial standards for determining indigence.
The procedures must apply to each defendant equally, regardless of whether or not bail has been
posted. In determining whether a defendant is indigent, the court or the court’s designee may
consider the defendant's income, source of income, assets, property owned, outstanding
obligations, necessary expenses, the number and ages of dependents, and spousal income that is
available to the defendant. The court or the courts' designee may not consider whether the
defendant has posted or is capable of posting bail, except to the extent that it reflects the
defendant's financial circumstances as measured by the considerations previously listed. Tex.
Code Crim. Proc. Art. 26.04(l)-(m).
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A defendant who requests a determination of indigence and appointment of counsel must:
(1) complete under oath a questionnaire concerning his financial resources;
(2) respond under oath to an examination regarding his financial resources by the judge
or magistrate responsible for determining whether the defendant is indigent; or
(3) complete the questionnaire and respond to examination by the judge or magistrate.
Tex. Code Crim. Proc. Art. 26.04(n).
In addition the defendant is required to sign an oath that substantially conforms to the following:
On this ________ day of ____________, 20 ___, I have been advised by the
(name of the court) Court of my right to representation by counsel in the trial of
the charge pending against me. I certify that I am without means to employ
counsel of my own choosing and I hereby request the court to appoint counsel for
me. (signature of the defendant)
Tex. Code Crim. Proc. Art. 26.04(o).
A defendant who is determined by the court to be indigent is presumed to remain indigent for the
remainder of the proceedings in the case unless a material change in the defendant's financial
circumstances occurs. If there is a material change in financial circumstances after a
determination of indigence or non-indigence is made, the defendant, the defendant's counsel, or
the attorney representing the state may move for reconsideration of the determination. Tex.
Code Crim. Proc. Art. 26.04(p).
For juveniles, Tex. Fam. Code § 51.10(f)-(g) states:
(f) The court shall appoint an attorney to represent the interest of a child entitled
to representation by an attorney, if:
(1) the child is not represented by an attorney;
(2) the court determines that the child's parent or other person responsible
for support of the child is financially unable to employ an attorney to
represent the child; and
(3) the child's right to representation by an attorney:
(A) has not been waived under Section 51.09 of this code; or
(B) may not be waived under Subsection (b) of this section.
(g) The juvenile court may appoint an attorney in any case in which it deems
representation necessary to protect the interests of the child.
The rules of Article 26.04 still apply to juveniles, except that the income and assets of the
person responsible for the child’s support are used in determining whether the child is
indigent. Tex. Fam. Code § 51.102(b)(1).
Core Requirement 3. Establish minimum attorney qualifications
:
Statutory Provisions
Judges of the statutory county courts are to establish an appointment list of qualified attorneys to
provide representation in misdemeanor cases. Likewise, judges of the district courts are to
establish an appointment list of qualified attorneys to provide representation in felony cases. The
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judges are to specify objective qualifications necessary to be included on the list and may
establish graduated lists, according to the seriousness of the offense. Each attorney applying to
be on an appointment list must be approved by a majority of the judges who try criminal cases at
that court level. In a county where a public defender is used, the courts may appoint the public
defender to represent defendants. Tex. Code Crim. Proc. Art. 26.04(d)-(f). Attorneys accepting
appointments are required to annually obtain 6 hours of criminal law continuing legal education
(CLE) credit per Title 1, §174.1 of the Texas Administrative Code.
For juveniles, the judges are to establish qualifications necessary for an attorney to be included
on the appointment list. The plan must recognize the differences in qualifications and experience
necessary for appointments involving supervision, delinquent conduct, or commitment to the
Texas Youth Commission. Tex. Fam. Code § 51.102. Attorneys accepting appointments are
required to annually obtain 6 hours of juvenile law continuing legal education (CLE) credit per
Title 1, §174.2 of the Texas Administrative Code.
Appointed attorneys are to contact the defendant by the end of the first working day after
receiving the appointment and to interview the client as soon as practicable. Tex. Code. Crim.
Proc. Art. 26.04(j). The public defender may have additional objective qualifications in
providing quality representation as the duties of the public defender are to be specified by the
commissioner’s court in a written agreement. Art. 26.044(b). Attorneys must also meet the
standard of care set by the Texas Bar in the Texas Disciplinary Rules of Professional Conduct.
Core Requirement 4. Appoint counsel promptly:
Statutory Provisions
An indigent defendant is entitled to have an attorney appointed to represent him/her in any
adversarial judicial proceeding that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of justice require representation.
Tex. Code Crim. Proc. Art. 1.051(a). If the magistrate is authorized under Article 26.04 to
appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in
accordance with Article 1.051. Art. 15.17(a). For counties with a census population over
250,000, if an indigent defendant is not released from custody prior to the appointment of
counsel, the court or court’s designee shall appoint counsel as soon as possible, but not later
than the end of the first working day after the date on which the court or the court’s designee
receives the defendant's request for appointment of counsel. For counties with a census
population under 250,000, if an indigent defendant is not released from custody prior to the
appointment of counsel, the court or court’s designee shall appoint counsel as soon as possible,
but not later than the end of the third working day after the date on which the court or the
court’s designee receives the defendant's request for appointment of counsel. Art. 1.051(c). If
an indigent defendant is released from custody prior to the appointment of counsel under
this section, appointment of counsel is not required until the defendant's first court
appearance or when adversarial judicial proceedings are initiated, whichever comes first.
Art. 1.051(j).
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For juveniles, if the child does not have counsel at the detention hearing and a determination was
made to detain the child, the child is entitled to immediate representation of an attorney. The
court must order the retention of an attorney or appoint an attorney. Tex. Fam. Code § 51.10(c).
If a determination was not made to detain the child, determinations of indigence are made on the
filing of a petition if: (1) the child is released by intake; (2) the child is released at the initial
detention hearing; or (3) the case was referred to the court without the child in custody. Tex.
Fam. Code § 51.101(c). A juvenile court that makes a finding of indigence under Subsection
51.101(c) must appoint an attorney to represent the child on or before the fifth working day after
the date the petition for adjudication or discretionary transfer hearing was served on the child. §
51.101(d).
Core Requirement 5. Institute a fair, neutral, and non-discriminatory
attorney selection process:
Statutory Provisions
Tex. Code Crim. Proc. Art. 26.04(b) requires that appointments are allocated among qualified
attorneys in a fair, neutral, and non-discriminatory manner. Article 26.04(a) states: “A court
shall appoint an attorney from a public appointment list using a system of rotation, unless the
court appoints an attorney under Subsection (f), (h), or (i).” Subsection (f) allows for the court to
appoint the public defender. Subsection (h) allows the court to appoint counsel via an alternative
program. Subsection (i) allows for appointment of attorneys from the court’s administrative
judicial region when a person is accused of a felony and the court is unable to adequately appoint
appropriate counsel. When a rotational system is used for appointments, “the court shall appoint
attorneys from among the next five names on the appointment list in the order in which the
attorneys’ names appear on the list, unless the court makes a finding of good cause on the record
for appointing an attorney out of order”. Art. 26.04(a).
Core Requirement 6. Promulgate standard attorney fee schedule and
payment process:
Statutory Provisions
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).
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Counsel is to be reimbursed for reasonable and necessary investigation and expert witness fees.
Expenses incurred without prior court approval shall be reimbursed if the expenses were
reasonably necessary and reasonably incurred. Tex. Code Crim. Proc. Arts. 26.05(d), 26.052(h).