D. Scott Elliff ~it looks as if you fell off the planet, played a video in both English and Spanish, explaining the process and/or methodology for ...

the actions and demeanor of prosecuting attorney Melissa Daylong.

All students prosecuted in JP Courts and/or punished on the Federally Funded CCISD taxpayers tab should be punished by only one not both.

A child suspended and subsequently charged in court is double jeopardy and violates federal law.


Thank you,

CCISD TAXPAYER ASSOCIATION

RE: [republic of texas] New comment on DEAR PUBLIC POLICY MAKERS, JP COURTS HAVE GROWN WA....‏

Dear Sandra,

The "legally trained" prosecutor is obligated to provide you all material and information , including evidence , in advance of trial pursuant to to Fed. R. Crim. P. 16 and the case law, including Brady v Maryland, 373 U.S. 83 (1963) and Giglio V United States, 405 U.S. 150(1972).

If their was a need for a psyche eval. the statement "kids like you wind up in jail" is biased,discrimination and stereotyping by a an officer of the court that is legally trained and not qualified to predict what a student will or will not do.

I am sorry to say this is common practice in the JP courts of Texas.

But i do know that if there is a chance your child will be incarcerated the sixth amendment to the U.S. Constitution requires an attorney be appointed to represent the defendant.

The practice of Texas public Schools pushing students into the "school to prison pipeline" is disgusting and failing to educate them is the goal.

If you are not legally trained, I suggest you do so quickly.

The google and internet have a wealth of info on this subject.

Good luck and may you always educate yourself and yours because you lose your rights if you do not assert them.

Speak up, talk to other parent in your situation, I promise you will not have to look far.

LeeAnn Haley
Kenedeno & Associates

P.S. Look at ~gritsforbreakfast.blogspot.com

The people of texas are out there that have gone through this same crap.



Date: Wed, 2 Apr 2008 15:11:59 -0700
From: sandratribble@gmail.com
To: kenedeno@gmail.com
Subject: [republic of texas] New comment on DEAR PUBLIC POLICY MAKERS, JP COURTS HAVE GROWN WA....

sandra has left a new comment on your post "DEAR PUBLIC POLICY MAKERS, JP COURTS HAVE GROWN WA...":

The methodology for the “Diversion Agreement” as it affected my son and I in the charges of failure to attend school, In the justice Court, Precinct 8, position2 Cause No. CR82C0144252 After becoming aware of my son’s truant behavior, and determining the cause, and trying continually to remedy the situation in conjunction with my son’s principal, we finally had our initial day in court. Upon entering the courtroom, we were told to complete a form and produce identification. Then the court played a video in both English and Spanish, explaining the process minimally. My son and are were the 1st defendants called. We approached the table that had called us, and sat down. There were four individuals at the table, none of which identified or introduced themselves to my son or myself. I understand my son and I were the defendants in the action, but as it was a pretrial. Cara Hernandez, I assume as the diversion agreement was stamped with her name, immediately started questioning my son in a tone similar to the actions and demeanor of prosecuting attorney Kelly Siegler, but again without the introduction. My son answered her questions, but when Mrs. Hernandez summed up her interpretation of what my son had said, she repeatedly said my son was blaming his truant behavior on everyone else. Upon direct questioning as to why he had been repeatedly absent, my son said he had an issue with a teacher, even brought up a verbal attack from the teacher directed at my son and other students. Mrs. Hernandez in her questioning of my son stated, it looks as if you fell off the planet, but it seems your back. Mrs Hernandez also stated that she hated to put children like my son in jail as he had no prior history, but kids like him almost always end up in jail, where as students that are always in court are smart enough to do just enough to stay out of jail. A man at the table handed me a piece of paper and requested I get Mike in counseling, I responded that Mike is already being seen by a counselor. He then asks if Mike had ever had a psychological assessment. I answered, “Not that I’m aware of.” He explained his name and number was written on the paper, and requested that I have a psychological assessment of my son done at Depelchin Children’s center. I contacted Depechin, to schedule a psychological assessment, explaining it had been court ordered thru a diversion agreement at my son’s court hearing in regards to truancy. The representative over the phone, seemed a little perplexed, she questioned, what sort of psychological assessment do you need? The paper I had been given was dated 9/7/06 from a web page that is no longer available, http://www.depelchin.org/display.php/tid/11.html. In spite of the message I left for Raul Gaona, yesterday after my conversation with the Depelchin representative, I have not received a return call. The Depelchin representative did volunteer that the Doctors used by Depelchin for psychological assessments were not accredited with any insurance. I contacted my sons’ therapist that works in conjunction with a licensed Psychiatrist, I explained what the court had ordered, a psychological assessment. The therapist asked what kind, rudimentary psychological assessment, personality psychological assessment, projection psychological assessment, or intelligence psychological assessment? After I explained it only said psychological assessment, my sons therapist explained, it would not be covered by insurance unless it was medically necessary. He also concluded if it became medically necessary in the course of therapy, it would be a covered testing. In the signed diversion agreement, we agreed to continue therapy, so I don’t understand the necessity of having a psychological assessment that has yet to be deemed a medical necessity. Obviously in following the court order of continued therapy, one would follow the recommendations of a mental health authority. My question to Raul Gaona would be in you minimal participation in the diversion agreement yesterday, do you think your question as to weather or not I had insurance indicated to me, along with the paper with hand written…No Contract No Evolv- Insurance, Medicaid, chips…that the psychological assessment would be covered to the extent my insurance allowed ? I am appalled by the actions and manipulation of words used by Cara Hernandez, and intentional mis-information indicated by Mr. Gaona. In the prosecutions discussion of perhaps getting a mentor, to mentor my child in how to cross the intersection of Bay Area Blvd(4 lanes of traffic), and Fm 528(5lanes), 15 minutes before sunrise, to get too tutorials(with an abusive teacher)on time, the prosecutor and all participants at the table should be mentored on the common courtesy of introducing oneself before questioning them or listening to their questioning.
To the assumed School district representative, had you recently been in contact with the principal at my son’s school perhaps you would have been aware of the mitigating circumstances regarding my son’s absences. The prosecutor implied my son had made up the conflict between the teacher and my son, as a representative of the school district, I would expect at least some acknowledgement of the said issue. The principal at my son’s school has obviously concluded, there was a real or perceived issue between my son and the teacher, as her actions allowing my child to remain in the student center during that teacher’s period, and has finally allowed my son to transfer out of that teacher’s class. Also, I do not understand which absences were used to charge my son with failure to attend school, as none accompanied the complaint. Under Section 25.0951 of the Texas Education Code If the school district chooses to file the charge of “failure to attend school” against the student, it must do so within ten (10) school days of the student’s 10th absence. The court must dismiss charges that are not filed within 10 school days of the student’s 10th absence.



Posted by sandra to republic of texas at 3:11 PM

The Mootness of this Act is the Joke of the ABA~Texas Justice~ $$$$$$$

Breach of confidence
From Wikipedia, the free encyclopedia
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The tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, which was communicated in confidence, and was disclosed to the detriment of the claimant.

Establishing breach of confidentiality depends on proving the existence and breach of a duty of confidentiality. Courts in the US look at the nature of the relationship between the parties. Most commonly, breach of confidentiality applies to the patient-physician relationship but it can also apply to relationships involving banks, hospitals, insurance companies.

Vendido~disservice to our citizens, harmful to clients, and demeaning to our profession.

The Texas Lawyer's Creed A Mandate for Professionalism

PROMULGATED BY
THE SUPREME COURT OF TEXAS
THE COURT OF CRIMINAL APPEALS
NOVEMBER 7, 1989

ORDER OF
THE SUPREME COURT OF TEXAS
AND
THE COURT OF CRIMINAL APPEALS

The conduct of a lawyer should be characterized at all times by honesty, candor, and fairness. In fulfilling his or her primary duty to a client, a lawyer must be ever mindful of the profession's broader duty to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country. We believe such tactics are a disservice to our citizens, harmful to clients, and demeaning to our profession.

The abusive tactics range from lack of civility to outright hostility and obstructionism. Such behavior does not serve justice but tends to delay and often deny justice. The lawyers who use abusive tactics instead of being part of the solution have become part of the problem.

The desire for respect and confidence by lawyers from the public should provide the members of our profession with the necessary incentive to attain the highest degree of ethical and professional conduct. These rules are primarily aspirational. Compliance with the rules depends primarily upon understanding and voluntary compliance, secondarily upon re-enforcement by peer pressure and public opinion, and finally when necessary by enforcement by the courts through their inherent powers and rules already in existence.

These standards are not a set of rules that lawyers can use and abuse to incite ancillary litigation or arguments over whether or not they have been observed.

We must always be mindful that the practice of law is a profession. As members of a learned art we pursue a common calling in the spirit of public service. We have a proud tradition. Throughout the history of our nation, the members of our citizenry have looked to the ranks of our profession for leadership and guidance. Let us now as a profession each rededicate ourselves to practice law so we can restore public confidence in our profession, faithfully serve our clients, and fulfill our responsibility to the legal system.

The Supreme Court of Texas and the Court of Criminal Appeals hereby promulgate and adopt "The Texas Lawyer's Creed - A Mandate for Professionalism" as attached hereto and made a part hereof.

In Chambers, this 7th day of November, 1989.

 The Supreme Court of Texas  The Court of Criminal Appeals

 Thomas. R. Phillips, Chief Justice Michael J. McCormick, Presiding Judge
 Franklin S. Spears, Justice  W. C. Davis, Judge
 C. L. Ray, Justice   Sam Houston Clinton, Judge
 Raul A. Gonzales, Justice  Marvin O. Teague, Judge
 Oscar H. Mauzy, Justice   Chuck Miller, Judge
 Eugene A. Cook, Justice   Charles F. (Chuck) Campbell, Judge
 Jack Hightower, Justice   Bill White, Judge
 Nathan L. Hecht, Justice  M. P. Duncan, III, Judge
 Lloyd A. Doggett, Justice  David A. Berchelmann, Jr., Judge

THE SUPREME COURT OF TEXAS

AND

THE COURT OF CRIMINAL APPEALS

THE TEXAS LAWYER'S CREED -- A MANDATE FOR PROFESSIONALISM

I am a lawyer. I am entrusted by the People of Texas to preserve and improve our legal system. I am licensed by the Supreme Court of Texas. I must therefore abide by the Texas Disciplinary Rules of Professional Conduct, but I know that professionalism requires more than merely avoiding the violation of laws and rules. I am committed to this creed for no other reason than it is right.

I. OUR LEGAL SYSTEM

A lawyer owes to the administration of justice personal dignity, integrity, and independence. A lawyer should always adhere to the highest principles of professionalism.

l. I am passionately proud of my profession. Therefore, "My word is my bond."

2. I am responsible to assure that all persons have access to competent representation regardless of wealth or position in life.

3. I commit myself to an adequate and effective pro bono program.

4. I am obligated to educate my clients, the public, and other lawyers regarding the spirit and letter of this Creed.

5. I will always be conscious of my duty to the judicial system.

II. LAWYER TO CLIENT

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shall employ all appropriate means to protect and advance the client's legitimate rights, claims, and objectives. A lawyer shall not be deterred by any real or imagined fear of judicial disfavor or public unpopularity, nor be influenced by mere self-interest.

l. I will advise my client of the contents of this creed when undertaking representation.

2. I will endeavor to achieve my client's lawful objectives in legal transactions and in litigation as quickly and economically as possible.

3. I will be loyal and committed to my client's lawful objectives, but I will not permit that loyalty and commitment to interfere with my duty to provide objective and independent advice.

4. I will advise my client that civility and courtesy are expected and are not a sign of weakness.

5. I will advise my client of proper and expected behavior.

6. I will treat adverse parties and witnesses with fairness and due consideration. A client has no right to demand that I abuse anyone or indulge in any offensive conduct.

7. I will advise my client that we will not pursue conduct which is intended primarily to harass or drain the financial resources of the opposing party.

8. I will advise my client that we will not pursue tactics which are intended primarily for delay.

9. I will advise my client that we will not pursue any course of action which is without merit.

10. I will advise my client that I reserve the right to determine whether to grant accommodations to opposing counsel in all matters that do not adversely affect my client's lawful objectives. A client has no right to instruct me to refuse reasonable requests made by other counsel.

11. I will advise my client regarding the availability of mediation, arbitration, and other alternative methods of resolving and settling disputes.

III. LAWYER TO LAWYER

A lawyer owes to opposing counsel, in the conduct of legal transactions and the pursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of all agreements and mutual understandings. Ill feelings between clients shall not influence a lawyer's conduct, attitude, or demeanor toward opposing counsel. A lawyer shall not engage in unprofessional conduct in retaliation against other unprofessional conduct.

1. I will be courteous, civil, and prompt in oral and written communications.

2. I will not quarrel over matters of form or style, but I will concentrate on matters of substance.

3. I will identify for other counsel or parties all changes I have made in documents submitted for review.

4. I will attempt to prepare documents which correctly reflect the agreement of the parties. I will not include provisions which have not been agreed upon or omit provisions which are necessary to reflect the agreement of the parties.

5. I will notify opposing counsel, and, if appropriate, the Court or other persons, as soon as practicable, when hearings, depositions, meetings, conferences or closings are canceled.

6. I will agree to reasonable requests for extensions of time and for waiver of procedural formalities, provided legitimate objectives of my client will not be adversely affected.

7. I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond.

8. I will attempt to resolve by agreement my objections to matters contained in pleadings and discovery requests and responses.

9. I can disagree without being disagreeable. I recognize that effective representation does not require antagonistic or obnoxious behavior. I will neither encourage nor knowingly permit my client or anyone under my control to do anything which would be unethical or improper if done by me.

10. I will not, without good cause, attribute bad motives or unethical conduct to opposing counsel nor bring the profession into disrepute by unfounded accusations of impropriety. I will avoid disparaging personal remarks or acrimony towards opposing counsel, parties and witnesses. I will not be influenced by any ill feeling between clients. I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposing counsel.

11. I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel's intention to proceed.

12. I will promptly submit orders to the Court. I will deliver copies to opposing counsel before or contemporaneously with submission to the Court. I will promptly approve the form of orders which accurately reflect the substance of the rulings of the Court.

13. I will not attempt to gain an unfair advantage by sending the Court or its staff correspondence or copies of correspondence.

14. I will not arbitrarily schedule a deposition, court appearance, or hearing until a good faith effort has been made to schedule it by agreement.

15. I will readily stipulate to undisputed facts in order to avoid needless costs or inconvenience for any party.

16. I will refrain from excessive and abusive discovery.

17. I will comply with all reasonable discovery requests. I will not resist discovery requests which are not objectionable. I will not make objections nor give instructions to a witness for the purpose of delaying or obstructing the discovery process. I will encourage witnesses to respond to all deposition questions which are reasonably understandable. I will neither encourage nor permit my witness to quibble about words where their meaning is reasonably clear.

18. I will not seek Court intervention to obtain discovery which is clearly improper and not discoverable.

19. I will not seek sanctions or disqualification unless it is necessary for protection of my client's lawful objectives or is fully justified by the circumstances.

IV. LAWYER AND JUDGE

Lawyers and judges owe each other respect, diligence, candor, punctuality, and protection against unjust and improper criticism and attack. Lawyers and judges are equally responsible to protect the dignity and independence of the Court and the profession.

l. I will always recognize that the position of judge is the symbol of both the judicial system and administration of justice. I will refrain from conduct that degrades this symbol.

2. I will conduct myself in Court in a professional manner and demonstrate my respect for the Court and the law.

3. I will treat counsel, opposing parties, the Court, and members of the Court staff with courtesy and civility.

4. I will be punctual.

5. I will not engage in any conduct which offends the dignity and decorum of proceedings.

6. I will not knowingly misrepresent, mischaracterize, misquote or miscite facts or authorities to gain an advantage.

7. I will respect the rulings of the Court.

8. I will give the issues in controversy deliberate, impartial and studied analysis and consideration.

9. I will be considerate of the time constraints and pressures imposed upon the Court, Court staff and counsel in efforts to administer justice and resolve disputes.

---

Back to Codes of Professional Ethics

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

This is the html version of the file http://www.courts.state.tx.us/tfid/pdf/Core%20Requirements.pdf.
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Page 1
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:
Page 2
- 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).
Page 3
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
Page 4
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).
Page 5
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).

I find it ironic that a counsel get paid for an alleged conscientious examination ......that anders voucher is requesedt

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS AP-74,996 Ex parte BRIAN KEITH OWENS, Applicant Application for Writ of Habeas Corpus from Tyler County Womack, J., filed a concurring opinion in which Cochran, J., joined. The Court says, ante at 8, "We fail to perceive any principled reason that our holding in Wilson should not apply equally to an appellant whose attorney files an Anders brief." I believe there is a principled reason. More important than that reason are the facts that the Wilson/Axel requirement is based on a fallacy, and it doesn't work. The Principled Reason. The principled reason that the holding in Wilson (1) should not apply when counsel files an Anders brief is that such an attorney must sever the attorney-client relationship. The entire reason for the Anders procedure is counsel's ethical obligation not to assert frivolous claims. (2) As the Anders opinion says: Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. (3) Whether he was correct or incorrect about there being no arguable grounds, the lawyer who files an Anders brief is leaving the case. This distinguishes the appellate lawyer from the trial lawyer. Even when the trial has ended in the conviction of the defendant, trial counsel's duty extends to advising him whether to appeal, as we held in Ex parte Axel: Precise obligations are laid out in ABA Standards Relating to the Administration of Justice ("Standards"), The Defense Function, Part VIII. After Conviction. After sentencing, the lawyer explains to defendant "meaning and consequences" of the judgment and "his right to appeal." He expresses his professional opinion as to "meritorious grounds for appeal and as to probable results of an appeal," as well as its "advantages and disadvantages." "The decision whether to appeal must be the defendant's …." The lawyer "should take whatever steps are necessary to protect the defendant's right of appeal." § 8.2 Appeal, Standards, at 135. (4) The appellate counsel who has filed an Anders brief because he has found the appeal to be wholly frivolous could not continue to give advice to the client about whether to seek further review. So there is a principled distinction here, which the Wilson Court ignored when it extended to all appellate counsel the same duty it imposed on all trial counsel in Axel. The Axel Fallacy. I find irony in this because, in my view, the Axel Court's reasoning was clearly wrong when it gave trial counsel, and only trial counsel, the duty to advise the defendant how to perfect an appeal without a lawyer. The reasoning in Axel was, "Informing a defendant of his right to appeal is part and parcel of also further advising him along lines of the Standards, ante, in order to make a decision whether to take an appeal. Surely a judge is precluded from giving that kind of advice, and who better than an attorney who tried the case is qualified to assay and advise his client of probabilities of error?" (5) It is true that, if a defense lawyer advises a defendant whether to appeal, the defendant will get the idea that there is such a thing as an appeal. And it is true that a judge is precluded from advising a defendant whether to appeal. But a judge is not precluded from telling every convicted defendant that he has a right of appeal and that to have an appeal he must file written notice of appeal within thirty days. No other jurisdiction that I know of has committed the fallacy of giving trial counsel, rather than the trial court, the responsibility to inform a defendant of the right to appeal and the procedures for appealing. Perhaps other jurisdictions considered that having this done by thousands of lawyers in confidential, off-the-record meetings with clients would be less reliable than having it done by the judge in open court, on the record. (6) If there was any justification for doing that in Axel, there was none for doing it in Wilson. It Doesn't Work. Not a decision day passes without this court's granting habeas corpus relief, in the form of out-of-time appeals or petitions for discretionary review, to convicted defendants whose counsel failed to carry out the responsibilities that the Court gave them in Axel and Wilson. We should, and we can, have a better method of informing defendants of their rights and duties in the appellate process. FILED: SEPTEMBER 13, 2006 PUBLISH 1. Ex parte Wilson, 956 S.W.2d 25 (Tex. Cr. App. 1997). 2. "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless the lawyer reasonably believes that there is a basis for doing so that it not frivolous." Tex. Disciplinary R. Prof'l Conduct 3.01. 3. Anders v. California, 386 U.S. 738, 744 (1967). 4. 757 S.W.2d 369, 373 (Tex. Cr. App. 1988). 5. 757 S.W.2d, at 373. 6. See, e.g., FED. R. CRIM. P. 32(j) (requiring the court to advise the defendant of any right to appeal, and requiring the clerk to immediately prepare and file a notice of appeal on the defendant's behalf if the defendant so requests).