Texas Code of Criminal Procedure - Article 26.04. Procedures For Appointing Counsel
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Art. 26.04. [494] [558] [547] PROCEDURES FOR APPOINTING
COUNSEL. (a) The judges of the county courts, statutory county
courts, and district courts trying criminal cases in each county,
by local rule, shall adopt and publish written countywide
procedures for timely and fairly appointing counsel for an indigent
defendant in the county arrested for or charged with a misdemeanor
punishable by confinement or a felony. The procedures must be
consistent with this article and Articles 1.051, 15.17, 26.05, and
26.052. 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). 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. An attorney who is not appointed in the
order in which the attorney's name appears on the list shall remain
next in order on the list.
(b) Procedures adopted under Subsection (a) shall:
(1) authorize only the judges of the county courts,
statutory county courts, and district courts trying criminal cases
in the county, or the judges' designee, to appoint counsel for
indigent defendants in the county;
(2) apply to each appointment of counsel made by a judge or
the judges' designee in the county;
(3) ensure that each indigent defendant in the county who is
charged with a misdemeanor punishable by confinement or with a
felony and who appears in court without counsel has an opportunity
to confer with appointed counsel before the commencement of
judicial proceedings;
(4) require appointments for defendants in capital cases in
which the death penalty is sought to comply with the requirements
under Article 26.052;
(5) ensure that each attorney appointed from a public
appointment list to represent an indigent defendant perform the
attorney's duty owed to the defendant in accordance with the
adopted procedures, the requirements of this code, and applicable
rules of ethics; and
(6) ensure that appointments are allocated among qualified
attorneys in a manner that is fair, neutral, and nondiscriminatory.
(c) Whenever a court or the courts' designee authorized
under Subsection (b) to appoint counsel for indigent defendants in
the county determines that a defendant charged with a felony or a
misdemeanor punishable by confinement is indigent or that the
interests of justice require representation of a defendant in a
criminal proceeding, the court or the courts' designee shall
appoint one or more practicing attorneys to defend the defendant in
accordance with this subsection and the procedures adopted under
Subsection (a). If the court or the courts' designee determines
that the defendant does not speak and understand the English
language or that the defendant is deaf, the court or the courts'
designee shall make an effort to appoint an attorney who is capable
of communicating in a language understood by the defendant.
(d) A public appointment list from which an attorney is
appointed as required by Subsection (a) shall contain the names of
qualified attorneys, each of whom:
(1) applies to be included on the list;
(2) meets the objective qualifications specified by the
judges under Subsection (e);
(3) meets any applicable qualifications specified by the
Task Force on Indigent Defense; and
(4) is approved by a majority of the judges who established
the appointment list under Subsection (e).
(e) In a county in which a court is required under
Subsection (a) to appoint an attorney from a public appointment
list:
(1) the judges of the county courts and statutory county
courts trying misdemeanor cases in the county, by formal action:
(A) shall:
(i) establish a public appointment list of attorneys
qualified to provide representation in the county in misdemeanor
cases punishable by confinement; and
(ii) specify the objective qualifications necessary for an
attorney to be included on the list; and
(B) may establish, if determined by the judges to be
appropriate, more than one appointment list graduated according to
the degree of seriousness of the offense and the attorneys'
qualifications; and
(2) the judges of the district courts trying felony cases in
the county, by formal action:
(A) shall:
(i) establish a public appointment list of attorneys
qualified to provide representation in felony cases in the county;
and
(ii) specify the objective qualifications necessary for an
attorney to be included on the list; and
(B) may establish, if determined by the judges to be
appropriate, more than one appointment list graduated according to
the degree of seriousness of the offense and the attorneys'
qualifications.
(f) In a county in which a public defender is appointed
under Article 26.044, the court or the courts' designee may appoint
the public defender to represent the defendant in accordance with
guidelines established for the public defender.
(g) A countywide alternative program for appointing counsel
for indigent defendants in criminal cases is established by a
formal action in which two-thirds of the judges of the courts
designated under this subsection vote to establish the alternative
program. An alternative program for appointing counsel in
misdemeanor and felony cases may be established in the manner
provided by this subsection by the judges of the county courts,
statutory county courts, and district courts trying criminal cases
in the county. An alternative program for appointing counsel in
misdemeanor cases may be established in the manner provided by this
subsection by the judges of the county courts and statutory county
courts trying criminal cases in the county. An alternative program
for appointing counsel in felony cases may be established in the
manner provided by this subsection by the judges of the district
courts trying criminal cases in the county. In a county in which an
alternative program is established:
(1) the alternative program may:
(A) use a single method for appointing counsel or a
combination of methods; and
(B) use a multicounty appointment list using a system of
rotation; and
(2) the procedures adopted under Subsection (a) must ensure
that:
(A) attorneys appointed using the alternative program to
represent defendants in misdemeanor cases punishable by
confinement:
(i) meet specified objective qualifications, which may be
graduated according to the degree of seriousness of the offense,
for providing representation in misdemeanor cases punishable by
confinement; and
(ii) are approved by a majority of the judges of the county
courts and statutory county courts trying misdemeanor cases in the
county;
(B) attorneys appointed using the alternative program to
represent defendants in felony cases:
(i) meet specified objective qualifications, which may be
graduated according to the degree of seriousness of the offense,
for providing representation in felony cases; and
(ii) are approved by a majority of the judges of the
district courts trying felony cases in the county;
(C) appointments for defendants in capital cases in which
the death penalty is sought comply with the requirements of Article
26.052; and
(D) appointments are reasonably and impartially allocated
among qualified attorneys.
(h) In a county in which an alternative program for
appointing counsel is established as provided by Subsection (g) and
is approved by the presiding judge of the administrative judicial
region, a court or the courts' designee may appoint an attorney to
represent an indigent defendant by using the alternative program.
In establishing an alternative program under Subsection (g), the
judges of the courts establishing the program may not, without the
approval of the commissioners court, obligate the county by
contract or by the creation of new positions that cause an increase
in expenditure of county funds.
(i) A court or the courts' designee required under
Subsection (c) to appoint an attorney to represent a defendant
accused of a felony may appoint an attorney from any county located
in the court's administrative judicial region.
(j) An attorney appointed under this article shall:
(1) make every reasonable effort to contact the defendant
not later than the end of the first working day after the date on
which the attorney is appointed and to interview the defendant as
soon as practicable after the attorney is appointed; and
(2) represent the defendant until charges are dismissed,
the defendant is acquitted, appeals are exhausted, or the attorney
is relieved of his duties by the court or replaced by other counsel
after a finding of good cause is entered on the record.
(k) A court may replace an attorney who violates Subsection
(j)(1) with other counsel. A majority of the judges of the county
courts and statutory county courts or the district courts, as
appropriate, trying criminal cases in the county may remove from
consideration for appointment an attorney who intentionally or
repeatedly violates Subsection (j)(1).
(l) Procedures adopted under Subsection (a) must include
procedures and financial standards for determining whether a
defendant is indigent. The procedures and standards shall apply to
each defendant in the county equally, regardless of whether the
defendant is in custody or has been released on bail.
(m) In determining whether a defendant is indigent, the
court or the courts' 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 listed in this subsection.
(n) A defendant who requests a determination of indigency
and appointment of counsel shall:
(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.
(o) Before making a determination of whether a defendant is
indigent, the court shall request the defendant to sign under oath a
statement substantially in the following form:
"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 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)"
(p) 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 indigency or
nonindigency is made, the defendant, the defendant's counsel, or
the attorney representing the state may move for reconsideration of
the determination.
(q) A written or oral statement elicited under this article
or evidence derived from the statement may not be used for any
purpose, except to determine the defendant's indigency or to
impeach the direct testimony of the defendant. This subsection
does not prohibit prosecution of the defendant under Chapter 37,
Penal Code.
(r) A court may not threaten to arrest or incarcerate a
person solely because the person requests the assistance of
counsel.
Acts 1965, 59th Leg., p. 317, ch. 722, Sec. 1, eff. Jan. 1, 1966.
Amended by Acts 1987, 70th Leg., ch. 979, Sec. 2, eff. Sept. 1,
1987.
Amended by Acts 2001, 77th Leg., ch. 906, Sec. 6, eff. Jan. 1, 2002.
Article: 25.02 25.03 25.04 26.01 26.011 26.02 26.03 26.04 26.044 26.05 26.051 26.052 26.053 26.055 26.056
Last modified: August 10, 2007
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