                         PD-0229-15

            No. __________________
               __________________________________________

                     In the Texas Court of Criminal Appeals
                 _______________________________________

                             Victor James Vargas
                                          Appellant,
                                      v.
     March 2, 2015
                              The State of Texas
                                           Appellee.

                 _______________________________________

                       On Review from the
            Eleventh Court of Appeals at Eastland, Texas
____________________________________________________________

        APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
____________________________________________________________

                                  Frank Sellers
                           Texas Bar No. 24080305
                           HURLEY, GUINN & SELLERS
                                 1805 13th Street
                             Lubbock, Texas 79401
                                 P: 806.771.0700
                                 F: 806.763.8199
                            frank@hurleyguinn.com
                              Attorney for Appellant
  
  
                       ORAL ARGUMENT NOT REQUESTED




                                         
                  I DENTITY   OF   J UDGE , P ARTIES ,   AND   C OUNSEL
  
                                  Trial  Court  Judge  
                          Honorable  Carter  Schildknect  
                 106th  District  Court  of  Dawson  County,  Texas  
                                                
Defendant/Appellant               Appellate  Counsel  
Victor  Vargas                    Frank  Sellers  
                                  HURLEY,  GUINN  &  SELLERS  
                                  1805  13th  Street  
                                  Lubbock,  Texas  79401  
                                  P:  (806)  771-­‐‑0700    
                                  F:  (806)  763-­‐‑8199    
                                  E:  frank@hurleyguinn.com  
                                    
                                  Court-­‐‑Appointed  Trial  Counsel    
                                  Artie  Aguilar  
                                  1015  Buddy  Holly  Avenue  
                                  Lubbock,  Texas  79401  
                                    
The  State  of  Texas             Trial  and  Appellate  Counsel  
                                  Mike  Munk  
                                  DAWSON  COUNTY  DISTRICT  ATTORNEY’S  OFFICE  
                                  P.O.  Box  1124  
                                  Lamesa,  Texas  79331-­‐‑0008  
                                    
  




                                             i  
                                         T ABLE    OF    C ONTENTS
IDENTITY OF JUDGE, PARTIES, AND COUNSEL .................................................... I

TABLE OF CONTENTS .......................................................................................II

INDEX OF AUTHORITIES .................................................................................. IV

STATEMENT REGARDING ORAL ARGUMENT ...................................................... 1

STATEMENT OF THE CASE ............................................................................... 2

STATEMENT OF PROCEDURAL HISTORY ............................................................ 3

GROUND FOR REVIEW ..................................................................................... 4
        When a motion for new trial is supported by sworn affidavits
        alleging matters indeterminable from the record, the trial court
        must conduct a hearing. Vargas timely filed a motion for new
        trial, supported by sworn affidavits alleging facts that, if true,
        would entitle him to relief. Did the court of appeals err by
        dismissing Vargas’s appeal of the denial of a hearing on his
        motion for new trial?

STATEMENT OF FACTS .................................................................................... 4

ARGUMENT .................................................................................................... 8
        The court of appeals erred by dismissing Vargas’s appeal
        instead of abating or remanding the case to the trial court to
        conduct an evidentiary hearing on his motion for new trial.
                                         
CONCLUSION AND PRAYER FOR RELIEF .......................................................... 13

CERTIFICATE OF SERVICE.............................................................................. 15

CERTIFICATE OF COMPLIANCE ....................................................................... 15




                                                        ii  
TABS ...............................................................................................................

    1.   Original Motion for New Trial (filed Aug. 22, 2014)
    2.   Defendant’s Second Request for Hearing (filed Sept. 19, 2014)
    3.   First Amended Motion for New Trial (Oct. 3, 2014)
    4.   Notice of Appeal
    5.   Order to Show Cause (Oct. 28, 2014)
    6.   Court of Appeals Opinion (issued Nov. 20, 2014)
    7.   Motion for Rehearing (filed Dec. 31, 2014)
    8.   Denial of Motion for Rehearing (Jan. 22, 2015)




                                                            
                                 I NDEX   OF   A UTHORITIES

Cases  

Chavez  v.  State,  183  S.W.3d  675,  680  (Tex.  Crim.  App.  2006)  _____________  13  

Cooper  v.  State,  45  S.W.3d  77,  82  (Tex.  Crim.  App.  2001).   _______________  15  

Dears  v.  State,  154  S.W.3d  610,  612  (Tex.  Crim.  App.  2005)  ______________  13  

Guidry  v.  State,  132  S.W.3d  611  (Tex.  App.—Houston  [1st  Dist.]  2004,  no  
  pet.).   _________________________________________________________  12  

Martinez  v.  State,  74  S.W.3d  19  (Tex.  Crim.  App.  2002)  _______________  9,  14  

Padilla  v.  Kentucky,  130  S.  Ct.  1473,  1482  (2010)  ________________________  10  

Reyes  v.  State,  849  S.W.2d  812  (Tex.  Crim.  App.  1993)  ___________________  9  

State  v.  Gonzalez,  855  S.W.2d  692  (Tex.  Crim.  App.  1993)  ________________  8  

Strickland  v.  Washington,  466  U.S.  668  (1984),   _________________________  10  

Trevino  v.  Thaler,  133  S.  Ct.  1911,  1915  (2013)  (citation  omitted)  __________  15  

United  States  v.  Cavitt,  550  F.3d  430  (5th  Cir.  2008)   ____________________  10  

Vargas  v.  State,  No.  11-­‐‑14-­‐‑00283,  at  *2  (Tex.  App.—Eastland  Nov.  20,  2014,  
  pet.  filed)  (mem.  op.,  not  designated  for  publication)  ____________  3,  7,  13  

Wilbur  v.  City  of  Mt.  Vernon,  989  F.Supp.2d  1122,  1124  (W.D.  Wash.  2013)   11  

Rules  

TEX.  R.  APP.  P.  43.6  ________________________________________________  12  

TEX.  R.  APP.  P.  44.4  ________________________________________________  12  

TEX.  R.  APP.  P.  66.3  _________________________________________________  8  

TEX.  R.  APP.  P.  68.1  _________________________________________________  1  

                                               iv  
TEX.  R.  APP.  P.  68.4(d)  ______________________________________________  1  

TEX.  R.  APP.  P.  9.4  _________________________________________________  15  

TEX.  R.  APP.  P.  9.5(d)  ______________________________________________  14  

Other  Authorities  

ABA  Standards  Relating  to  Criminal  Justice,  §  4  ____________________  9,  10  

Dottie  Carmichael  et.  al.,  Guidelines  for  Indigent  Defense  Caseloads,  A  Report  to  
 the  Texas  Indigent  Defense  Commission,  TEXAS  A&M  UNIV.  PUB.  POLICY  
 RESEARCH  INST.  (2015),  available  at  
 http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf   _______  6  

	  




                                                
  


           No. __________________
               __________________________________________

                    In the Texas Court of Criminal Appeals
                _______________________________________

                                      Victor Vargas
                                                Appellant,
                                            v.

                            The State of Texas
                                         Appellee.
                _______________________________________
  
TO  THE  HONORABLE  JUDGES  OF  THE  COURT  OF  CRIMINAL  APPEALS:    
  
      COMES   NOW   APPELLANT,   VICTOR   VARGAS,   by  and  through  his  counsel  

and   pursuant   to   TEX.   R.   APP.   P.   68.1,   and   presents   this   Petition   for  

Discretionary   Review,   and   would   show   this   Honorable   Court   the  

following:  


                      S TATEMENT R EGARDING O RAL A RGUMENT
       Pursuant   to   TEX.   R.   APP.   P.   68.4(d),   Vargas   waives   oral   argument  

because  he  is  simply  asking  this  Court  to  summarily  grant  this  petition  and  

remand  the  case  with  instructions  to  abate  the  case  to  the  trial  court  to  hold  




                                             1  
  

a   hearing   on   Vargas’s   timely   filed,   properly   supported,   motion   for   new  

trial.      


                                  S TATEMENT     OF THE   C ASE
           Vargas  was  indicted  for  possession  of  a  controlled  substance  less  than  

one  gram.  Represented  by  court  appointed  counsel,  Artie  Aguilar,  Vargas  

entered   a   guilty   plea.   After   Vargas   received   a   probated   felony   sentence,  

undersigned  counsel  agreed  to  represent  Vargas  pro  bono  to  file  a  motion  

for   new   trial   attempting   to   reverse   the   guilty   plea   because   it   was   both  

involuntary   and   the   result   of   ineffective   assistance   of   counsel.   Tab   #1,   Ex.  

A,   Aff.   of   Victor   Vargas.   Despite   a   motion   for   new   trial   and   amended  

motion   for   new   trial   (both   supported   by   affidavits   alleging   facts   that,   if  

found  true  by  the  trial  court,  would  entitle  Vargas  to  relief),  the  trial  court  

refused  to  conduct  a  hearing,  allowing  the  motion  to  overrule  by  operation  

of  law.  




                                                2  
  

                                                                     S TATEMENT       OF   P ROCEDURAL H ISTORY
                    After  the  trial  court  allowed  Vargas’s  motion  to  overrule,  Vargas  filed  

notice   of   appeal   to   the   Eleventh   Court   of   Appeals.1  Specifically,   Vargas  

sought   to   appeal   the:   “(1)   denial   of   a   hearing   on   his   motion   for   new   trial,  

and   (2)   the   trial   court’s   implicit   legal   ruling   on   his   motion   for   new   trial.”  

Tab   #4.   In   an   unpublished   opinion,   the   Eleventh   Court   of   Appeals  

dismissed   Appellant’s   appeal   on   November   20,   2014.   Tab   #6,   Vargas   v.  

State,  No.  11-­‐‑14-­‐‑00283,  at  *2  (Tex.  App.—Eastland  Nov.  20,  2014,  pet.  filed)  

(mem.   op.,   not   designated   for   publication).   Vargas   filed   a   motion   for  

rehearing   on   December   31,   2014.   Tab   #7.   That   motion   was   denied   on  

January   22,   2015.   Tab   #8.   This   petition   for   discretionary   review   will   be  

timely  filed  if  filed  on  or  before  February  23,  2015.  




                                                                                   
          1
                The  Court  of  Appeals  granted  an  extension  of  time  to  file  the  notice  of  appeal.  
        See  also  Dottie  Carmichael  et.  al.,  Guidelines  for  Indigent  Defense  Caseloads,  A  Report  to  
          2

the   Texas   Indigent   Defense   Commission,   TEXAS   A&M   UNIV.   PUB.   POLICY   RESEARCH   INST.  

                                                                                             3  
  

                                    G ROUND    FOR      R EVIEW
       When   a   motion   for   new   trial   is   supported   by   sworn   affidavits  
       alleging  matters  indeterminable  from  the  record,  the  trial  court  
       must   conduct   a   hearing.   Vargas   timely   filed   a   motion   for   new  
       trial,   supported   by   sworn   affidavits   alleging   facts   that,   if   true,  
       would   entitle   him   to   relief.   Did   the   court   of   appeals   err   by  
       dismissing   Vargas’s   appeal   of   the   denial   of   a   hearing   on   his  
       motion  for  new  trial?    
  

                                    S TATEMENT         OF   F ACTS
       Following  his  guilty  plea,  Vargas  timely  filed  a  motion  for  new  trial  

supported,   inter   alia,   by   affidavits   from   Vargas   himself   and   his   mother,  

Darcy  Vargas.  Tab  #1.  In  his  affidavit  Victor  Vargas  reveals  how  the  stop  of  

his  vehicle  and  continued  detention  of  him  appeared  to  be  illegal,  as  well  

as  how  Aguilar  (court-­‐‑appointed  trial  counsel)  failed  to  discuss  any  options  

other  than  to  plead  guilty  with  him:    

• “The  officer  then  pulled  me  over  because  he  believed  that  I  ‘looked  
  fatigued.’”  

• “After  my  November  2012  habeas  hearing,  I  was  unable  to  get  in  contact  
  with  Artie  again  until  February  of  2014.”  

• “From  my  original  arrest  on  August  9,  2012,  until  July  23,  2014,  almost  
  all  of  the  contact  that  I  have  ever  had  with  Artie  has  been  inside  the  
  court  room.  I  have  never  seen  any  discovery  (police  reports,  lab  report,  
  or  video).  I  do  not  know  if  or  when  Artie  got  the  discovery.”  




                                                 4  
  

• “Artie  told  me  that  I  had  no  choice  but  to  either  take  the  final  deal  or  go  
  to  trial  and  get  the  maximum  sentence.  I  asked  him  about  whether  the  
  stop  was  legal.  I  asked  him  about  the  lab  report  and  whether  there  was  
  even  enough  to  charge  me.  Artie  never  discussed  any  options  other  than  
  pleading  guilty  with  me.”  

• “Had  Artie  explained  anything  to  me  about  the  suppression  hearing  or  
  affirmative  links,  and/or  if  I  had  had  the  opportunity  to  view  the  video  
  and  see  the  reports,  I  would  not  have  pled  guilty.”  

Tab  1,  Exhibit  A,  Aff.  of  Victor  Vargas.  In  the  conclusion  and  prayer  of  his  

motion,   Vargas   asked   the   court   to   “set   this   matter   for   an   evidentiary  

hearing,”  and  then  grant  his  motion.  Tab  1.  

       Almost  a  month  later,  the  trial  court  still  had  not  set  Vargas’s  motion  

for   a   hearing.   Vargas   filed   a   second   request   for   the   trial   court   to   set   a  

hearing.  Tab  #2.      

       Forty-­‐‑two   days   after   filing   his   original   motion   for   new   trial,   Vargas  

filed  an  amended  motion  for  new  trial.  Tab  #3,  First  Amended  Motion  for  

New  Trial.  This  amended  motion  was  supported  by  all  of  the  same  exhibits  

from   his   original   motion,   as   well   as   the   following   additional   exhibits:   (1)  

Contract  for  Indigent  Defense  in  the  106th  Judicial  District  Court  of  Texas  

(file  marked  December  9,  2013);  (2)  Letter  from  Judge  Schildknecht  to  Joel  

Lieurance,   Policy   Monitor   at   TIDC   (July   19,   2013);   (3)   Texas   Indigent  

                                                  5  
  

Defense   Commission;   (4)   Review   of   Gaines   County’s   Indigent   Defense  

Systems   (June   11,   2013);   (5)   Affidavit   of   Philip   Wischkaemper;   and   (6)  

Affidavit  of  Frank  Sellers.  In  his  affidavit,  Wischkaemper,  a  26-­‐‑year  veteran  

criminal   lawyer   who   is   responsible   for   training   for   the   Lubbock   County  

Private   Defender’s   Office,   opined   that   if   the   allegations   in   Vargas’s  

affidavit   were   true,   it   would   constitute   ineffective   assistance   of   counsel.  

Tab  3,  Exhibit  H.  Wischkaemper  also  stated  that  Aguilar’s  2012  caseload  —  

254   appointed   felony   cases   that   represented   60%   of   his   practice   —   far  

exceeded   the   Lubbock   Private   Defender’s   Office’s   limit   of   65   clients   per  

appointed   attorney.   Id. 2   Finally,   undersigned’s   affidavit   detailed   how  

Aguilar   “declined”   to   speak   with   him   or   provide   an   affidavit   about   these  

allegations  on  multiple  occasions.  Tab  3,  Exhibit  I.  




                                                                                   
        See  also  Dottie  Carmichael  et.  al.,  Guidelines  for  Indigent  Defense  Caseloads,  A  Report  to  
          2

the   Texas   Indigent   Defense   Commission,   TEXAS   A&M   UNIV.   PUB.   POLICY   RESEARCH   INST.  
(2015),  available  at  http://tidc.texas.gov/media/31818/150122_weightedcl_final.pdf.),  at  34  
(concluding   that   for   reasonably   effective   representation   attorneys   should   carry   an  
annual   full-­‐‑time   equivalent   caseload   of   no   more   than   the   following:   236   Class   B  
Misdemeanors,   216   Class   A   Misdemeanors,   174   State   Jail   Felonies,   144   Third   Degree  
Felonies,  105  Second  Degree  Felonies,  or  77  First  Degree  Felonies).  


                                                                                      6  
  

       In   the   face   of   these   uncontroverted   affidavits   and   multiple   requests,  

the  trial  court  allowed  the  motion  to  overrule  by  operation  of  law.  Vargas  

filed   notice   of   appeal   to   the   Eleventh   Court   of   Appeals.   Despite   Vargas’s  

notice   of   appeal   essentially   notifying   the   court   that   all   he   wanted   was   a  

hearing,  not  a  full  review  of  the  merits,  the  appellate  court  asked  Vargas  to  

show  cause  as  to  why  he  should  be  allowed  to  continue  his  appeal:  

               Upon   reviewing   the   trial   court’s   Certification   of  
       Defendant’s  Right  of  Appeal,  it  indicates  Appellant  waived  his  
       right   of   appeal.   Appellant   is   requested   to   provide   this   Court  
       with   a   response,   in   writing,   showing   grounds   to   continue   this  
       appeal.   If   the   response   is   not   filed   on   or   before   November   5,  
       2014,  the  appeal  may  be  dismissed.  Tab  #5.  
         
       While   in   the   midst   of   a   four-­‐‑week   capital   murder   jury   trial,  

undersigned  overlooked  that  portion  of  the  court’s  request.  Tab  #7,  Motion  

for   Rehearing.   The   court   then   dismissed   Vargas’s   appeal   claiming   he   had  

waived  his  right  to  an  appeal  at  his  guilty  plea.  Tab  #6,  Vargas  v.  State,  No.  

11-­‐‑14-­‐‑00283,  at  *2  (Tex.  App.—Eastland  Nov.  20,  2014,  pet.  filed)  (mem.  op.,  

not  designated  for  publication).  Vargas  filed  a  motion  for  rehearing  asking  

the  court  to  reinstate  his  appeal.  Tab  #7.  After  the  court  of  appeals  refused  




                                                7  
  

to  reinstate  Vargas’s  appeal  to  remand  the  case  to  the  trial  court  to  conduct  

a  hearing,  Vargas  filed  this  petition.    

                    For  the  reasons  that  follow,  the  Court  of  Appeals  erred  by  dismissing  

Vargas’s  appeal  without  remanding  or  abating  the  case  to  the  trial  court  to  

conduct   an   evidentiary   hearing   on   his   motion   for   new   trial.   Therefore,  

discretionary   review   is   warranted   pursuant   to   Rules   66.3(a), 3   66.3(c), 4  

66.3(d),5  and  66.3(f).6    


                                                                                      A RGUMENT
                      The  court  of  appeals  erred  by  dismissing  Vargas’s  appeal  
                     instead  of  abating  or  remanding  the  case  to  the  trial  court  to  
                     conduct  an  evidentiary  hearing  on  his  motion  for  new  trial.  
                                                             
                    The   standard   of   review   for   “[b]oth   the   granting   and   denying   of   a  

motion   for   new   trial   rest   within   the   discretion   of   the   trial   court,   and  

                                                                                   
      “[W]hether   a   court   of   appeals'ʹ   decision   conflicts   with   another   court   of   appeals'ʹ  
          3

decision  on  the  same  issue.”  
      “[W]hether  a  court  of  appeals  has  decided  an  important  question  of  state  or  federal  
          4

law   in   a   way   that   conflicts   with   the   applicable   decisions   of   the   Court   of   Criminal  
Appeals  .  .  .  .”  
      “[W]hether   a   court   of   appeals   .   .   .   appears   to   have   misconstrued   a   statute,   rule,  
          5

regulation,  or  ordinance.”  
       “[W]hether   a   court   of   appeals   has   so   far   departed   from   the   accepted   and   usual  
          6

course  of  judicial  proceedings,  or  so  far  sanctioned  such  a  departure  by  a  lower  court,  as  
to  call  for  an  exercise  of  the  Court  of  Criminal  Appeals'ʹ  power  of  supervision.”  


                                                                                          8  
  

appellate   courts   ordinarily   will   not   reverse   that   decision   unless   the   trial  

court  has  abused  its  discretion.”  State  v.  Gonzalez,  855  S.W.2d  692,  696  (Tex.  

Crim.   App.   1993).   When   a   defendant’s   motion   for   new   trial   raises   issues  

“not   determinable   from   the   record,   which   could   entitle   him   to   relief,   the  

trial   judge   abuses   [his   or   her]   discretion   in   failing   to   hold   a   hearing.”  

Martinez  v.  State,  74  S.W.3d  19,  21  (Tex.  Crim.  App.  2002).  The  purpose  of  

the   hearing   is   to   “fully   develop   the   issues   raised   in   the   motion.”   Id.   To  

obtain   a   hearing,   “the   motion   must   be   supported   by   an   affidavit  

specifically   showing   the   truth   of   the   grounds   for   attack.”   Id.   Not   every  

element   must   be   established   “but   rather   must   merely   reflect   that  

reasonable  grounds  exist  for  holding  that  such  relief  could  be  granted.”  Id.;  

Reyes  v.  State,  849  S.W.2d  812,  816  (Tex.  Crim.  App.  1993)  (“.  .  .  affidavit  is  

not  required  to  reflect  every  component  legally  required  to  establish  relief,  

but   the   motion   for   new   trial   or   affidavit   must   reflect   that   reasonable  

grounds  exist  for  holding  that  such  relief  could  be  granted.”).    

       Vargas  made  multiple  allegations  that  would  entitle  him  to  relief  for  

Aguilar’s  ineffective  assistance  of  counsel:    



                                                 9  
  

• Aguilar’s  failure  to  conduct  an  “appropriate  investigation  and  study  of  
   the  case,”  ABA  Standards  Relating  to  Criminal  Justice,7  §  4-­‐‑6.1(b)  (1991)  
   [hereinafter  “ABA  Standards”].    
     
• Aguilar’s  failure  to  “provide  the  [Vargas  with]  an  understanding  of  the  
   law  in  relation  to  the  facts,”  United  States  v.  Cavitt,  550  F.3d  430,  440-­‐‑41  
   (5th  Cir.  2008);      
     
• Aguilar’s  failure  to  review  or  discuss  discovery  with  Vargas;  
  
• Aguilar’s  failure  to  file  a  motion  to  suppress;  
     
• Aguilar’s  intentional  overstatement  of  the  penalty  Vargas  would  face  if  
   he   opted   to   go   to   trial   (the   maximum   prison   sentence),   which   caused  
   “undue   influence   on   [Vargas’s]   decision”   to   plead   guilty.   ABA  
   Standards  §  4-­‐‑5.1;  
     
• Aguilar’s   advising   Vargas   to   plead   guilty   before   “appropriate  
   investigation   and   study   of   the   case   had   been   completed,”   ABA  
   Standards  §  4-­‐‑3.2;  
     
• All   of   the   above   was   likely   the   result   of   Aguilar’s   excessive   caseload,  
   which   systematically   prevented   him   from   being   able   to   provide  
   constitutionally  effective  assistance  of  counsel.8    
                                                                                   
        The   Supreme   Court   has   made   clear   that   the   inquiry   into   whether   an   attorney  
          7

performed  deficiently  under  Strickland  v.  Washington,  466  U.S.  668  (1984),  “is  necessarily  
linked  to  the  legal  community’s  practice  and  expectations.”  Padilla  v.  Kentucky,  130  S.  Ct.  
1473,   1482   (2010).   Accordingly,   the   American   Bar   Association   standards   provide  
invaluable  guidance  on  practice  and  expectations  in  representing  criminal  defendants.  
See  id.  Using  these  standards,  it’s  equally  clear  that  Aguilar’s  representation  fell  below  
an   objective   standard   of   reasonableness   under   then   “prevailing   professional   norms.”  
Strickland,  466  U.S.  at  688.  
      See   Wilbur   v.   City   of   Mt.   Vernon,   989   F.Supp.2d   1122,   1124   (W.D.   Wash.   2013)  
          8

(holding   that   indigent   defendants   were   “systematically   deprived   of   the   assistance   of  

                                                                                      10  
  

    
• Finally,   “Had   Artie   explained   anything   to   me   about   the   suppression  
  hearing  or  affirmative  links,  and/or  if  I  had  had  the  opportunity  to  view  
  the   video   and   see   the   reports,   I   would   not   have   pled   guilty.   Instead,   I  
  would  have  insisted  on  going  to  trial  —  regardless  of  the  outcome.”  Tab  
  1,  Ex.  A.  
    
      Vargas’s   motion   for   new   trial   and   supporting   exhibits   were  

“sufficient  to  put  the  trial  court  on  notice  that  reasonable  grounds  existed  

to   believe   that   trial   counsel'ʹs   representation   may   have   been   ineffective.”  

Guidry   v.   State,   132   S.W.3d   611,   613   (Tex.   App.—Houston   [1st   Dist.]   2004,  

no   pet.).   The   Court   of   Appeals,   however,   appears   to   have   concluded   that  

Vargas  was  seeking  review  of  the  substantive  issues  in  his  case,  as  opposed  

to  a  ruling  on  the  denial  of  a  hearing.  See  Wallace  v.  State,  106  S.W.3d  103,  

108   (Tex.   Crim.   App.   2003)   (discussing   the   difference   between   error   in  

denying   a   motion   for   new   trial   and   error   in   denying   a   hearing   on   the  

motion).    




                                                                                                                                                                                                                                                                         
counsel  at  critical  stages  of  the  prosecution  and  that  municipal  policymakers  have  made  
deliberate   choices   regarding   the   funding,   contracting,   and   monitoring   of   the   public  
defense   system   that   directly   and   predictably   caused   the   deprivation,”   where   public  
defenders   were   saddled   with   caseloads   comparable   to   Aguilar’s.   See   also   id.   (calling  
City’s  indigent  defense  a  “meet  and  plead”  system).  


                                                                                                                               11  
  

       The   Court   of   Appeals’   misunderstanding   of   the   relief   Vargas   was  

seeking  —  initially,  a  hearing  on  his  motion  for  new  trial  —  becomes  more  

apparent   when   looking   to   the   cases   cited   in   its   opinion   dismissing   the  

appeal.  Tab  #6,  Vargas  v.  State,  No.  11-­‐‑14-­‐‑00283,  at  *2  (Tex.  App.—Eastland  

Nov.  20,  2014,  pet.   filed)   (mem.   op.,   not   designated   for   publication  (citing  

Chavez  v.  State,   183   S.W.3d   675,   680   (Tex.   Crim.   App.   2006);   Dears  v.  State,  

154  S.W.3d  610,  612  (Tex.  Crim.  App.  2005)).  Chavez  dealt  with  an  appellate  

waiver   following   a   negotiated   plea   bargain.   183   S.W.3d   at   680.   Dears  

involved   the   right   to   appeal   from   a   negotiated   probation-­‐‑revocation   plea.  

154  S.W.3d  at  612.  Both  cases  sought  review  of  substantive  claims  on  direct  

appeal,  as  opposed  to  review  of  procedural  defects.  Neither  case  involved  a  

defendant’s   right   to   a   hearing   on   a   properly   filed,   properly   supported  

motion  for  new  trial.    

       Upon   receiving   Vargas’s   notice   of   appeal   seeking   review   of   the  

“denial   of   a   hearing   on   his   motion   for   new   trial,”   the   Court   of   Appeals  

should  have  abated  or  remanded  the  case  for  a  hearing.  See  TEX.  R.  APP.  P.  

43.6   (providing   that   “court   of   appeals   may   make   any   other   appropriate  



                                                12  
  

order  that  the  law  and  the  nature  of  the  case  require”);  TEX.  R.  APP.  P.  44.4  

(providing   that   if   trial   court'ʹs   error   or   failure   to   act   prevents   proper  

presentation  of  case  on  appeal  and  trial  court  can  correct  its  error  or  failure  

to  act,  court  of  appeals  “must  not  affirm  or  reverse,”  but  “must  direct  the  

trial  court  to  correct  the  error”).  Accordingly,  this  Court  should  summarily  

grant   this   petition,   reverse   the   lower   court’s   dismissal,   and   remand   this  

case   “with   instructions   to   abate   the   appeal   and   remand   the   cause   to   the  

trial   court   to   conduct   a   hearing   on   appellant'ʹs   motion   for   new   trial.”  

Martinez  v.  State,  74  S.W.3d  19,  22  (Tex.  Crim.  App.  2002).  


                          C ONCLUSION      AND   P RAYER    FOR   R ELIEF
       The  United  States  Supreme  Court  recently  criticized  Texas’s  appellate  

scheme   for   the   difficulty   it   causes   defendants   wanting   to   raise   ineffective  

assistance   claims   on   direct   review.   Trevino   v.   Thaler,   133   S.   Ct.   1911,   1915  

(2013)  (citation  omitted)  (“The  structure  and  design  of  the  Texas  system  in  

actual  operation,  however,  make  it  ‘virtually  impossible’  for  an  ineffective  

assistance  claim  to  be  presented  on  direct  review.”).  And   over   a   decade  

ago,   this   Court   commented   that   claims   of   ineffective   assistance   and  



                                                 13  
  

involuntary  guilty  pleas  should  be  raised  through  motions  for  new  trial  so  

that  they  “may  be  supported  by  information  from  sources  broader  than  the  

appellate   record.”   See   Cooper   v.   State,   45   S.W.3d   77,   82   (Tex.   Crim.   App.  

2001).  By  dismissing  Vargas’s  appeal  without  ever  giving  him  the  benefit  of  

a  hearing  on  his  motion,  the  Eleventh  Court  of  Appeals  has  re-­‐‑affirmed  the  

Supreme   Court’s   criticism   —   even   when   done   correctly,   review   of   an  

ineffective  assistance  claim  is  seemingly  impossible.    

       WHEREFORE,  PREMISES  CONSIDERED,  Vargas  prays  this  Court  reinstate  

his  appeal  and  remand  this  case  to  the  Court  of  Appeals  with  instructions  

that  would  allow  Vargas  a  hearing  on  his  motion  for  new  trial.    




  
                                                      Respectfully  submitted,  
                                                        
                                                        
                                                      _________________________  
                                                      Frank  Sellers  
                                                      Texas  Bar  No.  24080305  
                                                      HURLEY,  GUINN  &  SELLERS  
                                                      1805  13th  Street  
                                                      Lubbock,  Texas  79401  
                                                      P:    806.771.0700    
                                                      F:    806.763.8199    


                                               14  
  

                                                        E:    frank@hurleyguinn.com  
                                                        Attorneys  for  Appellant  
  

                                   C ERTIFICATE    OF   S ERVICE
      Pursuant  to  TEX.  R.  APP.  P.  9.5(d),  a  copy  of  the  foregoing  was  served  
on  opposing  counsel  viaȱȱ  February  23,  2015.                      
  
                                                     
                                                   _________________________  
                                                   Frank  Sellers  
  

                                C ERTIFICATE    OF   C OMPLIANCE
Pursuant   to   Texas   Rule   of   Appellate   Procedure   9.4(i)(3),   I   hereby   certify  
that  this  brief  contains  2,685  words  (excluding  the  caption,  identification  of  
the  parties,  index,  list  of  authorities,  signature,  certification,  and  certificate  
of   compliance).   This   is   a   computer-­‐‑generated   document   created   in  
Microsoft   Word,   using   14-­‐‑point   typeface   for   all   text,   except   for   footnotes  
which   are   in   12-­‐‑point   typeface.   In   making   this   certificate   of   compliance,   I  
am   relying   on   the   word   count   provided   by   the   software   used   to   prepare  
the  document.  
  
  
  
                                                      _________________________  
                                                      Frank  Sellers  
  




                                                 15  
  


                                      T ABS
  
     1. Original Motion for New Trial (filed Aug. 22, 2014)

     2. Defendant’s Second Request for Hearing (filed Sept. 19, 2014)

     3. First Amended Motion for New Trial (Oct. 3, 2014)

     4. Notice of Appeal

     5. Order to Show Cause (Oct. 28, 2014)

     6. Court of Appeals Opinion (issued Nov. 20, 2014)

     7. Motion for Rehearing (filed Dec. 31, 2014)

     8. Denial of Motion for Rehearing (Jan. 22, 2015)

  




                                          
              Tab #1
Original Motion for New Trial (filed Aug. 22, 2014)
       FILED IN
11th COURT OF APPEALS
   EASTLAND, TEXAS
10/28/2014 5:39:00 PM
  SHERRY WILLIAMSON
         Clerk
08/22/2814   16:41   8067638199                     HURLEY & GUII'f'.l                    PAGE   83/27




     never showed him the video of the stop, and never showed him the lab report. Because

     Vargas had legitimate defenses to the stop and the possession allegation that could have

     been raised before and during trial, this Court must grant him a new trial.

                                Ill. ARGUMENT AND AUTHORITIES

     A. Facts

        Vargas was arrested on August 9, 2012 by Texas Department of Public Safety

     Trooper Wally Garza for possession of a controlled substance less than one gram. He

     was indicted on February 13, 2013. TI.1e Court appointed Aguilar to represent Vargas.

    Prior to pleading guilty, Vargas was told only that he had received an offer of three

    years probation, and that if he did not take that, he would receive five years probation.

    Aguilar never showed Vargas any discovery whatsoever. Vargas pled guilty.

        The discovery ir1. this case was crucial. It revealed that Vargas was stopped because

    he travelled on the improved shoulder of Highway 84, and the trooper wanted to

    "check on the conditions of the driver." Exhibit C at 2. After. pulling over, Trooper

    Garza tells Vargas he will receive a wamjn_g for driving on the white line. Video at 6:56.

    Nevertheless, Garza continued to detain Vargas and ask him questions completely

    unrelated to the initial reason for the stop. Garza eventually asked for, and obtained,

    consent to search. A drug dog subsequently arrived and did not appear to alert on

    anything in the vehicle. Apparently pursuant to the consent, however, Trooper Garza

    and another officer. searched the trunk and found baggies of trace residue inside.
08/22/2014   16:41     80676381'3'3                  HURLEY & GUINN                         PAGE   04/27




        Vargas and his mother gave detailed affidavits explaining Aguilar's performance,

     professionalism, and behavior during his representation. For the sake of brevity, those

     affidavits are included as exhibits and incorporated with all other exhibits by reference.

     Importantly, as explained in his affidavit, Vargas did not want to plead guilty to this

     charge. Unfortunately, he felt he had no choice.

     B. Standard of Review

             A defendant may raise ineffective assistance of counsel in a motion. for new trial,

     even though it is not a ground specifically enumerated in TEx. R. APP. P. 21.3. State v.

     Provost, 205 S.W.3d 561, 566 (Tex. App.-Houston [14th Oist.] 2006, no pet.). The trial

     court's discretion in granting new trials "is almost the only protection to the citizen

    against the illegal or oppressive verdicts of prejudiced, careless, or ignorant juries, [and

     the trial] Court should never hesitate to use that discretion whenever the ends of justice

    have not been attained by those verdicts." Mullins v. State, 37 Tex. 337, 339-40 (1872-1873)

    (emphasis added)i State v. CYlJnzales, 855 S.W.2d 692, 694 (Tex. Crim. App. 1993). A trial

    court does not abuse its discretion unless the trial court granted a new trial in an

    arbitrary or unreasonable manner without reference to any guiding rules or principles.

    See State v. LaSalle, 135 S.W.3d 94, 96 (Tex. App.-Corpus Christi 2003, no pet.).

    C. Law on lne.ffecti.ve Assistance of Counsel

       The Sixth and Fourteenth Amendments to the United States Constitution, as well as

    Article I, Section 10 of the Texas Constitution, guarantee each defendant the right to the
08/22/2014   15:41    8057538199                     I-IJRLEY & GUINN                       PAGE    05/27




     effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80

     L.Ed.2d 674 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Cri.m. App. 1985). The

     guarantee of effective assistance of counsel embodied in the Sixth Amendment now

     extends to the plea-bargaining process. Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). This

     guarantee includes the "effective assistance of competent counsel" before dedding

     whether to plead guilty. Padilla v. Kentucky, 559 U.S. 356, 364 (2010). To prevail on a

     claim of ineffective assistance of counsel Defendant must first show that counsel's

     performance fell below an objective standard of reasonableness, and that there is a

     reasonable probability tha.t, but for the a.ttom.ey's deficiency, the result of the

     proceeding would have been different. See .Eddie v. State, supra, 100 S.W.3d at 442, citing

     Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Even a single error on counsel's

     part can warrant a finding of prejudice. Andrews v. State, 159 S.W.3d 98, 103 (Tex. Crim.

     App. 2005).

        Proving prejudice only requires showing that the result of the proceeding would

     have been different by less than a preponderance of the evidence. Strickland, 466 U.S. at

     694-96 ("The result of a proceeding can be rendered unreliable, and hence, the

     proceeding itself unfair, even if the errors of counsel cannot be shown by a

     preponderance of the evidence to have determined the outcome."); Po1·ter v. McCollum,

     130 S.Ct. 447, 4.55-456 (2009) (per curiam) ("reasonable probability" standard requires

     neither certainty nor showing that "more likely than not" diiferent outcome would have
08/22/2014   16:41     8067638199                      1-URLEY & GUINN                       PAGE    €16/27




     occurred at guilt-innocence stage). Because this case deals with a guilty plea, "prejudice

     occurs if there is a reasonable probability that, but for counsel's errors, the defendant

     would not have pleaded guilty and would have insisted on going to trial." United States

     v. juarez, 672 F.3d 381, 385 (5th Cir. 2012) (citations and quotations omitted). For a guilty

     plea to be valid, it must have been a voluntary and intelligent choice among the

     alternative courses of action available. Hill v. Lockhart, 474 U.S. 52, 56 (1985).

     D. Vargas's Claim. Meets Both Prongs of the Strickland Test

                                         Deficient Performance

             To establish deficiency, Defendant must show that trial counsel was "not

     functioning as the counsel guaranteed the defendant by the Sixth Amendment." juarez,

     672 F. 3d at 386. This requires the Court to determine whether the representation fell

     below an objective standard of reasonableness under then "prevailing professional

     norms." Strickland, 466 U.S. at 688. This inquiry "is necessarily linked to the legal

     community's practice and expectations." Padilla v. Kentucky, 130 5. Ct. 1473, 1482 (2010).

     As the Supreme Court has long recognized, the American Bar Association standards

    provide invaluable guidance on practice and expectations in representing criminal

     defendants. See id.

             The ABA Standards applicable here illustrate precisely why Aguilar's

     performance was deficient. The ABA Standards relating to defense counsel's duty to

     investigate provide:
as/22/2014   16:41     8067638199                     HURLEY & GUINN                          PAGE   07/27




             Defense counsel should conduct a prompt investigation of the
             circumstances of the case and explore all avenues leading to facts relevant
             to the merits of the case and the penalty in the event of conviction. The
             investigation should include efforts to secure information in the
             possession of the prosecution and law enforcement authorities. The duty
             to investigate exists regardless of the accused's admissions or statements
             to defense counsel of facts constituting guilt or th.e accused's stated desire
             to plead guilty.

             ABA Standards Relating to Criminal Justice, § 4-4.l(a) (1991} (hereinafter "ABA

     Standards"]. In the context of a guilty plea, the ABA Standards further provide, "Under

     no circumstances should defense counsel recommend to a defendant acceptance of a

     plea unless appropriate investigation and study of the case has been completed,

     including an analysis of controlling law and the evidence likely to be introduced at

     trial." ABA Standards§ 4-6.1(b); see also id. § 14-3.2 (1997) ("Defense counsel should not

     recommend to a defendant acceptance of a plea unless a.ppropriate investigation and

     study of the case has been completed."). Going further, the ABA Standards also set out

     what defense counsel should do in advising a client after such an investigation has been

     completed:

                   (a) After informing himself or herself fully on the facts and the law,
             defense counsel should advise the accused with complete candor
             concerning all aspects of the case, including a candid estimate of the
             probable outcome.

                     (b) Defense counsel should not intentionally understate or overstate
             the risks, hazards, or prospects of the case to exert undue inf1uence on the
             accused's decision as to his or her plea.

    ld. § 4-5.1 (emphasis added).
~8/22/2~14   16:41     8~67638199                      HURLEY & GUINN                           PAGE    EIB/27




             Here, Aguilar's performance was deficient. He did not advise Vargas of anything

     other than what his guilty-plea options were. He never disrussed the facts with him.. No

     notes appear in the file. He never discussed or filed a motion to suppress. He never

     even showed Vargas any of the discovery. The Fifth Circuit has made clear, this is not

     acceptable conduct for defense attorneys. Moore v. Johnson, 185 F.3d 244, 261 (5th Cir.

     1999) ("The Court is, therefore, not required to condone unreasonable decisions

     parading under the umbrella of strategy, or to fabricate tactical decisions on behalf of

     counsel when it appears on the face of the record that counsel made no str.ategic

     decision at all."). No justification exists for not discussing the facts with your client. 'This

     Court should not condone or invent one.

             Finally, much like "informed consent" in the medica1 field,           "[c]ounsel must

     ensure that guilty pleas are entered only as an informed and voluntary choice, by

     actually and substantially assisti:n.g the defendant in deciding whether to plead guilty."

     United States v. Juarez, 672 F.3d 381, 388 (5th Cir. 2012). Actual, substantial assistance can

     only happen when ''appropriate investigation and study of the case has been

     completed, including an analysis of controlling law and the evidence likely to be

     introduced at trial." ABA Standards§ 4-6.l(b). Indeed, it is the lawyer's job to,

             provide the accused a.n understanding of the law in rela.tion to the facts.
             The advice he gives need not be perfect, but it must be reasonably
             competent. His advice should permit the accused to make an informed
             and conscious choice. In other words, if the quality of counsel's service
             falls below a certain minimum level, the client's guilty plea cannot be
             knowing and voluntary because it will not represent an infonned choice.
08/22/2014   16:41    8067638199                       HURLEY & GUINN                     PAGE   09/27




             And a lawyer who is not famil.ia_r with the facts and law relevant to his
             client's case cannot meet that required minimal level.

     United States v. Cavitt, 550 F.3d 430, 440-41 (5th Cir. 2008) (citations and quotations

     omitted). Aguilar's performance was deficient.

                                               Prejudice

        The second part of the Strickland analysis requires Vargas to show that Aguilar's

     performance prejudiced him. Vargas must demonstrate that there is a. "reasonable

    probability" that but for Aguilar's errors, he "would not have pleaded guilty and would

    have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). A reasonable

    probability is "a. probability sufficient to undermine confidence in the outcome.''

    Strickland v. Washington, 466 U.S. 668, 694 (1984). This is more than a mere possibility

    but "less than a preponderance of the evidence that the error affected the trial." United

    States v. juarez, 672 F.3d 381, 388 (5th Cir. 2012) (citation omitted).

       Vargas had legitimate potentially exonerating defenses. First, the stop was

    questionable at best, if not outright illegal. Second, the continued detention of Vargas

    was unreasonable. United States v. Macias, 658 F.3d 509, 522 (5th Cir. 2011) (holding that

    trooper's asking questions unrelated to initial reason for the stop illegally prolonged

    traffic stop). TI1itd, the fact that the "affirmative links" doctrine was never discussed

    with Vargas is devastating, especially given that multiple people had access to an.d

    drove Vargas's vehicle. Finally, Vargas was not actually in possession of any drugs. No
08/22/2014   16:41     8067638199                      HURLEY & GUINN                          PAGE   10/27




     proof existed that he knew he possessed anything other than empty baggies containing

     "trace," immeasurable amounts of a controlled substance.

        Vargas is not required to prove his innocence, or even that he would have received a

     better outcome. Rather, he is only required to prove tha.t he would not have actually

     pled guilty had he been made aware of his options by a standard less than a

    preponderance of the evidence. Varga.s's affidavit makes clear that he would not have

    pled guilty and far exceeds this standard. Vargas was prejudiced.

        E. Vargas's ineffective assistance claim was not waived by his guilty plea.

             Vargas anticipates the State will argue that any claims of ineffective assistan.ce of

    counsel were waived when he pled guilty to the offense, but this is no longer the law.

    The Supreme Court has recently addressed ineffective assistance of counsel in the

    context of guilty plea.s. Padilla v. Kentucky, 559 U.S. 356 (2010); Missouri v. Frye, 132 S.Ct.

    1399 (2012). The Padilla court explained that, "the negotiation of a plea bargain is a

    critical phase of litigation for purposes of the Sixth Amendment right to effective

    assistance of coun.sel." Padilla, 559 U.S. at 373. There, the Court held that an attorney's

    failure to properly advise the defendant of collateral immigration consequences

    sterruning from a guilty plea constituted ineffective assistance.Jd. at 375. In doing so the

    Court necessarily overruled prior authority holding that, "once a guilty plea has been

    entered, all nonjurisdictional defects in the proceedings against a defendant are

    waived." Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Any remaining doubt over
08/22/2014    16:41    8067638199                     HURLEY & GUINN                         PAGE   11/27




     the calculus of the Court's ruling in Padilla was removed by Frye: "[Padilla] also rejected

    the argument made by petitioner in this case that a knowing and voluntary plea

    supersedes errors by defense counsel." Frye, 123 S.Ct. at 1406. In other words, the

    Supreme Court now routinely rejects Estelle's logic that if a plea is "voluntary, it follows

    that claims of ineffectiveness unrelated to the guilty plea are waived." Estelle, 711 F .2d

    at 682 (denying ineffective assistance claims based on failure to investigate prior to

    a.dvising defendant to plead guilty). And the Fifth Circuit has followed suit. United

    States v. Juarez, 672 F.3d 381 (5th Cir. 2012).

             In Juarez, the Court held that an attorney's failure to investigate a potential

    defense was not cured by a subsequent guilty plea. ld. at 389. There, Juarez pled guilty

    both to lying about his U.S. citizenship on an application to purchase fireanns and to

    illegal re-entry. Id. at 384. Although Juarez's mother was a naturalized citizen,   Juare~'s


    trial counsel never advised him that derivative citizenship was a defense to both of

    these offenses.Id. at 385-86. Trial counsel also "did not know that Juarez could be a U.S.

    citizen as other people did not inform him of this possibility." ld. at 385. Although the

    legal interpretation of whether Juarez was able to qualify for the derivative citi.zenship

    defense was unsettled, the Fifth Circuit held that at the time of Juarez's pleas, "a

    derivative citizenship defense was plausible." Jd. at 387. The Juarez court concluded,

             Juarez's guilty pleas were not entered knowingly or voluntarily becau.se
             [trial counsel] advised him without investigating derivative citizenship.
             "[A defendant) who does not receive reasonably effective assistance of
08/22/2014   16:41     8067638199                     HURLEY & allNN                     PAGE   12/27




             counsel in connection with his decision to plead guilty cannot be said to
             have made that decision either intelligently or voluntarily."

    Id. at 390 (quoting Mason v. Balcom, 531 F.2d 717, 725 (5th Cir.1976)).

             Much like trial counsel in Juarez had a duty to investigate the facts and law

    underlying a "plausible" defense, Aguilar had a duty to investigate the facts and law

    underlying Jegitimate, potentially exonerating defenses for Vargas. Because Aguilar

    failed to do this -       a decision contrary to established federal precedent and

    unsupported by any reasonable argument -             Vargas was denjed constitutionally

    effective assistance of counsel.


                                 Ill.   CONCLUSION & PRAYER


             WHEREFORE, PREMISES CONSIDERED,       Defendant prays tha.t th.is Court set this

    matter for an evidentiary hearing and at the close thereof, grant this motion for new

    tr.i.al, and vacate the judgment and sentence in this case.

                                                      Respectfully submitted,




                                                              Texas Bar No. 24080305

                                                      1805 13th Street
                                                      Lubbock, Texas 79401
                                                      P: 806.771.0700
                                                      F: 806.763.8199
                                                      ATIORNEYS FOR DEFENDANT
08/22/2014   16:41    8067638199                      ~EV     & GUII-f'.l                       PAGE   13/27




                                        Certificate of Service

           I certify that today, August 22, 2014, a. copy of the foregoin.          mailed and faxed
    to the Dawson County District Attorney's Office.




                                     Certificate of Presentment

           I certify that today, August 22, 2014, a. copy of the foregoing was        ed and
    emailed to the Judge of this Court, along with a blank Order S,ertJrn!Z:;r-u~
08/22/2014   16:41   8067638199          HURLEY & GUINN   PAGE   14/27




                                    Exhibit A
                            Affidavit of Victor Vargas
08/22/2014   15:41       8857538199                            H~LEV    & GU!i'l'l                               PAGE   15/27




                                                    AFFIDAVIT

         THE STATE OF TExAs                                §
                                  .                        §
        COUNTY OF ~0\:to(\ ~                               §

         Before me, the undersiped authority, personally appeared Victor Vargas. who upon his oath
         deposed and stated the following:

             My name is Victor Varps. I am over the age of 18. of sound mind. competent to make this
         affidavit, and bave pel'JOD8Ilmowledge of the filets below. I have prepared this affidavit with the
         help of my new lawyer, Frank Sellers.

            I was driving from Lubbock, TX to San Angelo, TX on Aupst 9, 2012. I was in a lowered
         Cadillac Coupe Deville that had previously been used by my broCh« and mend. As I was drMng
         on Highway 87, I noticed an officer on the other side of the road. The officer drove up beside me
         and remained db:ectly next to my vdricle for a short period of1ime.. The oftic:er then pulled me
         over because lv: believed that 1 "looked fatiped." After the officer explained to me that I would
         r=eive a warning and rcccivina the same, the officer asked tbr COIIIeDt to search. lbihking there
         was nothing to hide, I gave the officer dris consent.

            There were three to four large suitcase-type bags located in the trunk of the v~e. Small
        plastic baggies WCR fouud in one bag tbat also c:ontained my tattoo equipment. There were many
        clean, wuscd small plastic bagies within this larger bag. Hc»vever, two small mreen baggjes
        were mixed in amongst tbe clean baggies. Upon inspecting these two green blgies, tbe officer
        del:eeted a tiny amount of what he believed was drug residue on the inside. 1 was then arrested
        for felony possession of a COJdrolled. substaDcc less tban 1 gram. I was held in Dawson County
        Jail wilh a S10,000 bodd. I was unable to get a bond because I was an out of town traveler and
        c:oruJiclaed a flight risk. My ooly option was to wait in jail Uldi1 my attorney and J could sort
        everything OUL

             While in j~ I received a letter from Artie Aguilar notifYing me that he would be serving as
         my court appointed lawyer in this matter. When I received this letter I bed my wife, Crystal
         Vargas, conract Artie almost immediately. After many attelnpts, sbe was UDable to reach him.
         After about 10 days in jail Crystal tried many 1001e times to oontact Artie, each time was
         unsuccessful. Crystal was finally able to reach Artie. But Artie told Crystal that he coutdn•t talk
         to her because all the information in my case was confidential.

              Other than Artie's first lettr:r, I bad not beard ftom bim in any way while I was in jail. After
         almost 90 days I wrote a leaer to Artie, informing bim that I bad not been inc1icted aod that I
         wanted to file a writ of habeas corpus. I oevcr received a letter in return from Artie. but two
         weeks later received notice that I would be haviDs a bearing for habeas relief. Artie and I were
         both present for this hearing. This wu the first tiOle I bad spoken to Artie aside fiom the initial
         letter he sent me. bJ November2012, tbejudge granted me habeas reJiefbecause I still had not
         yet been indicted. Wrth some stipulations, I was released from jail.
08/22/2014   16:41      8067638199                           HJRLEY & GUINN                                PAGE   16/27




              After my release, I called and sent letters to Artie hopiDg to resolve my lepl issues. Also, I
         was planning 8 move from San Angelo to Houstoa early in 2013 aud knew 1bll--es 8 condition
         of my releasc--1 would need to inform both my attomey and the comw:y. Eaeh time I tried to
         reach Artie aod iufonn him of this move I was uasuccessfW..I reac:bed Artie's secretuy (his
         fidher) multiple times ad left f!N"$98p. Howew:r, I never received a return phooe call or any
         letters 1iom Artie. After my November 2012 habeas hearing. I was unable to get iD contact with
         Artie again UDtil Febnlll)' of20J4.

             In February of2014, I was pulled over for having expired license plates in Houston and
         subsequently am:stcd due to a pending indicbneot in Dawson County. Artie bad not notified me
         oftbis indiclmeDt. I wa never told that fbi= was even a posst''bility of trial. At this time. my wife
         and mother (Datqr Vargas) began adliag Artie's office in hopes of gettiDg more details on the
         indictmeqt. Botb were aosuccessful on nearly eYf:rJ 8ltempL My molher was finally able to get a
         hold of Artie, only to be cussed out for calling too mucb and tben bung up on.

            The oex.t time I saw Attie was in April of20l4 at my arraignment in Dawson County. I was
        told that I would need to come back aud enter my plea in June of2014 at 9:00A.M. Although I
        now lived in Houston, I drove to Dawson County and arrived at tbe scbcduled time. I was told
        that b)' Artie that the District Attorney wasn't ready at 811 and that they didn't have mtything
        prepared. This hearing was rescheduled and I was fon:ed to drive all the way back to Houston.

             The next court date sbould have been July 2, 2014. Artie told me that be was going to try to
         set up a way where I could avoid having to drive in from Houston again. In late June. I received
         a call &om Arlie saying tbat I bad RCeived a second plea offer. At this time, I told Artie thall
         didn't even knew of the first plea offer. Artie told me that I bad been pnmously been offered a
         plea of S years state jail confinement with 4 years of or community supervision. I do not know
         wbeo Artie n:cdved the fint offer. Artie told me that be had "already told them that you weren •t
         going to Ulke it...

             The sc:amd plea oftb- was for 2 years of S1afe jail ccmfinemeat with 3 years of community
         supervision. I asked Artie if he would be able to get anything less. He told me that I was lucky
         they offered me this btause for a wbile they didn't want to come down from S years. Once
         again, l was unaware that prior ncgotiadcms and/or offers had ever laben place. I was 1-.sically
         told to take it or leave it oa this 8CCODd offer. Mtie elso told me that he would be able to move
         my court date ftom July 2, 2014, to July 23, 2014. After spcaldng with my wife, I decided that I
         bad no choice but to take the second offi:r.

             From my original arrest on August 9, 2012. until July 23, 2014, almost all of the contact that
         I have ever had with Artie IMs been inside the court room. I have never sc:en any discovery
         (police ...,rts, lab report, or video). I do not bow if or wbm Artie got tbe discovery.
         Throughout tbis ~process, Artie has been nearly impossible to reach.

            Artie told me tbat I had no choice but to either take the final deal or go to trial and get the
         maximum scntenc:e. I asked him about whether the stop was legal. I asked him about the lab
         report aod wbelber there was even enough to daarge me. Artie never discussed any options other
         than pleading guilty with me.


         Alllda.U of' VIdor va...-- hie 2
08/22/2014   16:41      8067638199                           1-il.RLEY & GUINN                             PAGE   17/27




            While: lcaviag tbe courthouse after my plea, attorney Frank Sella'S overheard my Mom and I
         arguiag about the plea deal I bad just bcca fon:ed to take. Mr. Sellers inquired about my limited
         knowledge of the facts of my case. He lgreed to help me file a motion for new 1riat without any
         c:ostto me.

             Mr. Sellers reoeivccl the discowry from Ame. He then sbowal it to me. This was the fimt
         time I had seen a police report. lab rqJOrt, and video. He also explaiDed to me that the stop and
         consent to search my vehicle appeand to be uneoostitutiooal. He said that dtele were legitimate
         defenses that could have been ftlised both before trial in 1iont of the judge at a suppression
         heariag, as well as in fioDl oflbe jUI)'. AdditiOD8lly, he explained the legal c:oocept of
         "affirmatiw liDks," requirina the State to 1iDk me to anyd:tiog in tbe car becaU9e multiple people
         had access to the vehide.

            I am not pilty oftbe cbarge I pled guilty to. Had Artie explained anything to me about the
         suppression bearing or affinnalive liftks, and/or if I bad bad tbe opportunity to view the video
         and see the reports, I would not bave pled guilty.lnsteld, I would have iusisted on go.iDg to trial
         -regardless of the outcome.




         Subscribed and swom to before me on August li, 2014. by Victor Vargas.
B8/22/2B14   16:41   8B67638199         HURLEY & GJINN   PAGE   18/27




                                   Exhibit B
                           Affidavit of Darcy Vargas
08/22/2014   16:41      8067638199                             HURLEY & GJINN                                   PAGE   19/27




                                                   AFFIDAVIT

         ntE STATE OF TExAs                                §
                                                           §
                                                           §

         Before 111e, the undersiped authority. personally appeared Darcy Vargas, who upon her oath
         deposed end stated the following:
             ..My name is Darcy Vargas. t am owr the age of 18, of sound mind, competent to make tllis
         affidavit, and have pei"SSMM knowledge of the facts below. I have prepared this affidavit with the
         help of my son's new lawyer, Frank Sellers.

             l, Darcy Varps, have been involved in Ibis case ever since my son Victor was arrested in
         Houston and informed that he had a wanant in Dawson County. Prior to the arrest in Houston. I
         had called Anie Apilar maybe once or twice before. This previous call was just to notify Artie
         that Victor pllllllled to move in with me in Houston. Because nobody was able to a« a hold of
         Artie, Victor and 1 decided 1hc best thing to do was to send a letter to his office with the address
         of Victor's new residente ill Houston.

              After Victor's arrest, I called Artie many times hoping to get some infonnation about the
         wammt in Dawson County.l called hisoffic:e 1D811)', many times with no answer. I was often
         IIIUlble to leave voicemails because the phone would just keep ring endlessly. After many failed
         attempts, I wa fmally able to reach a male who sccmcd to be acting as Artie's sct~£taly. I cannot
         recall if this man b)ld me his name or not. I told the sccrc:tary that I needed to speak with Artie
         immediatdy because we were not aware Chat a wanant had been issued in Dawson County.

             Within a day or two, I spoke with Attie for the first time. He called in the aftemoon aDd
         asked what I wan~ to which I said we nJZded information on Victor's cue. Artie responded
         that there had been a sealed indictment and that it was not his raponaibility to intbrm V"actor
         about it. After a briefoon'ft:tlation about why we weren't made aware ofthe sealed indictment,
         Artie fanally asked me, "What do you wantr J araswered that I ji&SC wancecllnfonnation, records,
         or anything that could help gel my son out ofjail in Houston. I will never forget his response. He
         responded, "Access Denied. Now what do you want?" Once again [ requested 1hc same
         infonnation. Artie then said, "Look lady, qui' being a bitch." Shocked by how unprofessional he
         was, I responded, "Excuse me? You did not just call me the 8-Word." Artie lhen said, uwell
         lady, you heard me,. and hung up the phone on me. I found Ibis diBiespectful conduct particularly
         surprisinJ coming ffom a lawyer.

            In June of2014, Artie called me and said that I needed to have Victor call him because he
         had been gM:n a plea offer. V"ICior called Artie back and was able to get a hold of Artie. This is
         when Victor was told of the offer that he eventually acc:eptcd.

             Before accepting this plea, neither Victor nor I were able to view any police reports. any lab
         reports, or the video of Victor's stop and arrest. I found Mr. Aguilar's behavior ~ble and
         of lowest caliber of any professional I have ever dealt with. His lc:gaJ work was not much better."
88/22/2814   16:41     80676381'3'3                        HURLEY   & GUif'.l'l    PAGE   28/27




         Subacribed and sworn to before me on August   JL 2014. by Darcy Vargas.
08/22/2014   15:41   8057538199         1-fJRLEY & GUINN   PAGE   21/27




                                   Exhibit C
                             Trooper Garza's Report
08/22/2014       15:41     80676381'3'3                            f-IJRLEY & Gl.Jl NN                                   PAGE    22/27



         •                                      ,..
                                                  Q'EXAS DEPARTMENT OF PUBLIC SAFkp                            TRAFFK:
                                                   TEXAS HIGHWAY PATROL DMSION                           _x_   CRII.tiMfL
                                                           OFFENSE REPORT                                      WtOOI.NOTR:AnON
                                                                                                         REQUIRED fAAT. 11.27 CCP)
    REPORT DATE:         0Bf09/12
    FILETm.E                                                       INVESnGAnNG OFFICER:

                                                                    ~JWE: Waltf~G
    1.       Vargas, VIdor James                                                                                    IO-IIt      12989
    2.       522 e. 24* street                                                • • .
    3.       San Angelo, TX 78903                                      SIOM'IllftE;      ~
    4.       W/M                                                   REGIONIDISTRICt            •      ·
    5.                                                             APPROVING SUPERVISOR:
    SID#                                 Ill#                       nPEO JMME;        Sgt. Jason Anzaldua           IOoNR:      10358
    10.         TX: 29404996             008      1011111984
    OTHER:
                                                                       aqM~-----------------------------
    RPT--RE:       1.) Possession ofConlralled Substance in PG-1 < 1gram (SJF)


    COMPLETE IF TRAFFIC OFFENSE ANO CHEMICAL TEST IS OFFEREO:
                               IILOCID

                                                                          NO          <IPEMTOR l)f


                                                 ~                                        poum                  DATE/TIME
                                                 Possession of Controled                  Dawson                0810912012
                                                 SubStance In PG-1 <1 gram (SJF)                                1:50pm
                                                 HSC Sec.481.115 (b)




    Smwl!;
    On Ttulday August 9"', 2012 and at approximately 1:50 pm I, Trooper WaJty Garza, conducted a traffic stop on
    a Belgef1997/Cadftlac/4-Dr Car bearing TX1P-DK4T836 for drtvlng on the inproved shoulder. The driver was
    idenllfiad through Texas 101: 29404998 to be Vargas. VIdor James. Vargas was 8tDiequentty arrested for
    Posaesslon of Coulrolled &mtance in PG-1 <1gram (SJF) after a vehicle search resulted in the <1acovery of (2)
    clear blue plastic baggies containing a white crystal lice powder. The substance was field tested •nd was positive
    for Methamphetamine. Vwgac was transported to Dawson County jaU In Lamesa,TX. The vehicle was refe88ed
    and towed by De La Garza to 602 S.DaUas Ave In Lamesa,TX.
08/22/2014      16:41       80676381'3'3                        ~LEY     & a!INN                              PAGE     23/27


      .,
                                           n                                        0
    ntP-1 Contiluation (8104)                TEXAS DEPARTMENT OF PUBUC SAFETY                            Page:       2 of3
                                               TEXAS HIGHWAY PATROL OIVIStON
                                                      OFFENSE REPORT


   IAlE~
    INVESTIGATING OFFICER:
                                                                                        COUNlY:
                                                                                        REPORT DATE:




    Details:
           1. On Thtnday August 9.., 2012 and at appcoximately 1:50pm I, Trooper W.Garza, was working routine
              patrol on USB7 approxlmalaly 2 miles North of Lamesa, TX.
           2. I observed a Belgei19971Cad1ttar:/4-Dr Car beating TXlP-Dk4T836 drive on the Improved shoulder as It
              was traveling southbound.
           3. 1made a traffic stop on the vehicle in order to cheek on the coucltions of the dmer.
           4. I approadlad the passenger 8kJe door af the vehiCle.
           5. 1greeted the driVer and acMsed him of the reason for the traftic atcp.
           6. The drMH' verbally identilled l*nself as Vargas, VICtor James DOB: 10/11/1984 SSNt: XXX-XX-XXXX.
           7. OWing the roadside lrUrview with Vargas, I obGervec:l indicators of possible criminal activity.
           8. Vargas' breathing appeared to be labored as evident ttwough b quick rise and faa of his abdomen.
           9. 1asked Vargas where he was headed to and he repflf!d, •san Angelo".
           1o. I asked Vargas where he was corning from and he stated, '"Lubbock•.
           11. I asked Vargas how tong he had been in Llmboc:k and he stated, "Silce Saturdaf.
           12. I asked Vatgaa if he had 1raveled alone and he replied, •No, my wife came with me but she left back
                home e.ty".
           13. I asked \largas to exit his vehicle and he did so.
           14. Alter a cheek of weapons on his person, I asked Vargas to haVe a seat in my patrol car while I prepared
                his enfon:ernent action (warning).
           15. ~ contil'dng tf1e roadside Interview, 1obserwd Vargas's carotid artery putsating on the Side of his
                neck.
           1B. I asked Vargas why his wfe had left eartler than tie did and he stated, -we had an argument and her
                sister took her back to San Angeto·.
           17. After the traffiC stop was complelad, verbal consent to seard'l the vehicle was raquested and granted by
             . Vargas.
           18. During the vehide sean:h, a blue dUffle bag was located inside the trunk area.
           19. The blue duffle bag cantalnad tattoo tools and gear.
           20.1nllda the blue duffle bag, a clear plastic bag containing several1 gram empty baggies was dscovered.
           21. Upon further Inspection d this dear plastic bag, (4) clear blue baggfes were afsO disCovered.
           22. Two of the blue clear plastic baggies contained • useable amount of a white cryatal fike powder berreved
                to be Methmnphatamine.
           23. I asked Vatgas to coma to the trunk area and he did so.
           24. I asked Vargas who the blue duffle bag belonged to and he stated, •It's mine, that's where I keep my
                tattoo stuff'.
           25. I asked him about the dear plastic bag containing the baggles lncll.lding the clear blue ones with the white
                crystal like powder but Vargas denied any knowledge.
           2.6. Vargas was placed under arrest and secured ., the front passenger side seat of my patrol car.
           27. After a ~hicle inventory (HQ-109), the vehiCle was released and towed by AIMirt Martinez to 602
              S.Dallas Ave In l.ameA,TX.
           28. The substance was field tested and was positive for Methamphetamine and wil be sent to Midland DPS
               Crime Lab fOr final analysis.
           29. Vargas was booked in for PossessiOn of ControGed Substance PG-1 < 1g (SJF).
e8/22/2e14      16:41   8067638199                     HURLEY & GUINN                             PAGE    24/27

   I   a

                                     n                                   n
                                       TEXAS DEPAR'TMENT OF PUBLIC SAFETY                     Page:   3of3
                                         TEXAS HIGHWAY PATROL DIVISION
                                                OFFENSE REPORT

                                                                            COUNTY:
                                                                            REPORT DATE: OBroQ/12




   NlgrJg & Addtm;                                     Wll Testtty To;
   Texas Depattment of Public Safety                   M aspects to ihe case
   tighway Patrol
   Trooper Waty Garza
   808 N. Main Ave.
   Llmelll, TX. 79331
   (808) 872--9494

   Description and Custody of Evklep:e:
   DescrlDlioo:
           1. THP-1                                       1. Turned in to the Districl Attorney
           2. DVD                                         2. Atlached to THP-1 Case Report
           3. Photos                                      3. Attached to THP-1   case Report

   VJcti!Q!i
   Name &Addless:
   NIA
   Ve.btcle!:
   Description;                                        Disposition:
   Belgei1997/Cadillaci4-0r car bearing TXLP-Dk4T836      reteasec1 and towed by Albert Martinez to 802
                                                          S.Dallas Ave in Lamesa,TX

   Weapons:
   D§scrtption:                                        Disposition:
   NIA
08/22/2014   15:41   8057538199          HLRLEV & GUINN   PAGE   25/27




                                    Exhibit D
                                  DPS Lab Report
08/22/2014          16:41        8067638199                                 HURLEY & GUINN                          PAGE   26/27




                                                h                                            ()
                                     TEXAS DEPARTMENT OF PUBUC SAFETY
                                                                ~I.MOIU1aln'
                                                                       ro ......,
                                                          --~te
                                                                    ........ "',.,...
                                                                              ........
                                                           .... & ......   18.. ,_....,




                                          ContloUecl Substance AnalySis Laboratory Report
                                                        Issue o•: o.cem11er 21. 2012
             WallyGma                                                                     Laboratory. 1110-1~1808
             r... fighwJiy Palrol                                                             Agency t TX128800YBCI08
             SOINMain
                                                                                               Count:r: Dawson
             lanes~~,     TX 71331
                                                                                          otr.nee Ddt: OMWl012
          S..U.t             \lllrpl, VlctorJamea (1)08 10111184)




                   It: 9X12 ,allowerwelopa on August 13,2012 by Garza, WlllyVIACertlledMIIII70112970000425712709
          Evttp      Qpndl!lor'o, 8!!gll! , . . . . . '"' ....pratallpn:
                            s..-.
                      a



          01: ~                0x12 ye~aw enve~opa
             lt..-t-AA.: EJchlwhttll• zlpiOC CICNdlllnlng ...... ,..,..
                 Cofttllnl MeltamphetwnN
                 Trace net welgl1t
                 1 of 1 IIams w.n sampled fOr analysla

             This report hal been elecllonlcally Pl•paad lind approved bf:

             . . . . Siva
             Forensic Sdentl8t
             TG81 DPS Midland Crime L.abanllt:lq




                                                                                                                    Page1-of1
   -   .. 111_!2
                    Tab #2
Defendant’s Second Request for Hearing (filed Sept. 19, 2014)
              Tab #3
First Amended Motion for New Trial (Oct. 3, 2014)
Vargas  had  legitimate  defenses  to  the  stop  and  the  possession  allegation  that  could  have  

been  raised  before  and  during  trial,  this  Court  must  grant  him  a  new  trial.    

                                   III.  ARGUMENT  AND  AUTHORITIES  

A. Facts  

    Vargas   was   arrested   on   August   9,   2012   by   Texas   Department   of   Public   Safety  

Trooper   Wally   Garza   for   possession   of   a   controlled   substance   less   than   one   gram.   He  

was   indicted   on   February   13,   2013.   The   Court   appointed   Aguilar   to   represent   Vargas.  

Prior   to   pleading   guilty,   Vargas   was   told   only   that   he   had   received   an   offer   of   three  

years  probation,  and  that  if  he  did  not  take  that,  he  would  receive  five  years  probation.  

Aguilar  never  showed  Vargas  any  discovery  whatsoever.  Vargas  pled  guilty.  

    The  discovery  in  this  case  was  crucial.  It  revealed  that  Vargas  was  stopped  because  

he   travelled   on   the   improved   shoulder   of   Highway   84,   and   the   trooper   wanted   to  

“check   on   the   conditions   of   the   driver.”   Exhibit   C   at   2.   After   pulling   over,   Trooper  

Garza  tells  Vargas  he  will  receive  a  warning  for  driving  on  the  white  line.  Video  at  6:56.  

Nevertheless,   Garza   continued   to   detain   Vargas   and   ask   him   questions   completely  

unrelated   to   the   initial   reason   for   the   stop.   Garza   eventually   asked   for,   and   obtained,  

consent   to   search.   A   drug   dog   subsequently   arrived   and   did   not   appear   to   alert   on  

anything   in   the   vehicle.   Apparently   pursuant   to   the   consent,   however,   Trooper   Garza  

and  another  officer  searched  the  trunk  and  found  baggies  of  trace  residue  inside.    
    Vargas   and   his   mother   gave   detailed   affidavits   explaining   Aguilar’s   performance,  

professionalism,  and  behavior  during  his  representation.  For  the  sake  of  brevity,  those  

affidavits  are  included  as  exhibits  and  incorporated  with  all  other  exhibits  by  reference.  

Importantly,   as   explained   in   his   affidavit,   Vargas   did   not   want   to   plead   guilty   to   this  

charge.  Unfortunately,  he  felt  he  had  no  choice.    

B. Standard  of  Review  

         A  defendant  may  raise  ineffective  assistance  of  counsel  in  a  motion  for  new  trial,  

even   though   it   is   not   a   ground   specifically   enumerated   in   TEX.   R.   APP.   P.   21.3.   State   v.  

Provost,   205   S.W.3d   561,   566   (Tex.   App.—Houston   [14th   Dist.]   2006,   no   pet.).   The   trial  

court’s   discretion   in   granting   new   trials   “is   almost   the   only   protection   to   the   citizen  

against  the  illegal  or  oppressive  verdicts  of  prejudiced,  careless,  or  ignorant  juries,  [and  

the   trial]   Court   should   never   hesitate   to   use   that   discretion   whenever   the   ends   of   justice  

have   not   been   attained   by   those   verdicts.”   Mullins   v.   State,   37   Tex.   337,   339-­‐‑40   (1872-­‐‑1873)  

(emphasis  added);  State  v.  Gonzales,  855  S.W.2d  692,  694  (Tex.  Crim.  App.  1993).  A  trial  

court   does   not   abuse   its   discretion   unless   the   trial   court   granted   a   new   trial   in   an  

arbitrary  or  unreasonable  manner  without  reference  to  any  guiding  rules  or  principles.  

See  State  v.  LaSalle,  135  S.W.3d  94,  96  (Tex.  App.—Corpus  Christi  2003,  no  pet.).    

C. Law  on  Ineffective  Assistance  of  Counsel  

    The  Sixth  and  Fourteenth  Amendments  to  the  United  States  Constitution,  as  well  as  

Article  I,  Section  10  of  the  Texas  Constitution,  guarantee  each  defendant  the  right  to  the  
effective  assistance  of  counsel.  Strickland  v.  Washington,  466  U.S.  668,  104  S.  Ct.  2052,  80  

L.Ed.2d   674   (1984);   Hernandez   v.   State,   726   S.W.2d   53,   57   (Tex.   Crim.   App.   1985).   The  

guarantee   of   effective   assistance   of   counsel   embodied   in   the   Sixth   Amendment   now  

extends  to  the  plea-­‐‑bargaining  process.  Lafler  v.  Cooper,  132  S.  Ct.  1376,  1384  (2012).  This  

guarantee   includes   the   “effective   assistance   of   competent   counsel”   before   deciding  

whether   to   plead   guilty.   Padilla   v.   Kentucky,   559   U.S.   356,   364   (2010).   To   prevail   on   a  

claim   of   ineffective   assistance   of   counsel,   Defendant   must   first   show   that   counsel'ʹs  

performance   fell   below   an   objective   standard   of   reasonableness,   and   that   there   is   a  

reasonable   probability   that,   but   for   the   attorney'ʹs   deficiency,   the   result   of   the  

proceeding  would  have  been  different.  See  Eddie  v.  State,  supra,  100  S.W.3d  at  442,  citing  

Tong  v.  State,  25  S.W.3d  707,  712  (Tex.  Crim.  App.  2000).  Even  a  single  error  on  counsel’s  

part  can  warrant  a  finding  of  prejudice.  Andrews  v.  State,  159  S.W.3d  98,  103  (Tex.  Crim.  

App.  2005).    

    Proving   prejudice   only   requires   showing   that   the   result   of   the   proceeding   would  

have  been  different  by  less  than  a  preponderance  of  the  evidence.  Strickland,  466  U.S.  at  

694-­‐‑96   (“The   result   of   a   proceeding   can   be   rendered   unreliable,   and   hence,   the  

proceeding   itself   unfair,   even   if   the   errors   of   counsel   cannot   be   shown   by   a  

preponderance  of  the  evidence  to  have  determined  the  outcome.”);  Porter  v.  McCollum,  

130   S.Ct.   447,   455-­‐‑456   (2009)   (per   curiam)   (“reasonable   probability”   standard   requires  

neither  certainty  nor  showing  that  “more  likely  than  not”  different  outcome  would  have  
occurred  at  guilt-­‐‑innocence  stage).  Because  this  case  deals  with  a  guilty  plea,  “prejudice  

occurs   if   there   is   a   reasonable   probability   that,   but   for   counsel’s   errors,   the   defendant  

would  not  have  pleaded  guilty  and  would  have  insisted  on  going  to  trial.”  United  States  

v.  Juarez,  672  F.3d  381,  385  (5th  Cir.  2012)  (citations  and  quotations  omitted).  For  a  guilty  

plea   to   be   valid,   it   must   have   been   a   voluntary   and   intelligent   choice   among   the  

alternative  courses  of  action  available.  Hill  v.  Lockhart,  474  U.S.  52,  56  (1985).  

D. Vargas’s  Claim  Meets  Both  Prongs  of  the  Strickland  Test  

                                            Deficient  Performance  

        To   establish   deficiency,   Defendant   must   show   that   trial   counsel   was   “not  

functioning  as  the  counsel  guaranteed  the  defendant  by  the  Sixth  Amendment.”  Juarez,  

672   F.   3d   at   386.   This   requires   the   Court   to   determine   whether   the   representation   fell  

below   an   objective   standard   of   reasonableness   under   then   “prevailing   professional  

norms.”   Strickland,   466   U.S.   at   688.   This   inquiry   “is   necessarily   linked   to   the   legal  

community’s  practice  and  expectations.”  Padilla  v.  Kentucky,  130  S.  Ct.  1473,  1482  (2010).  

As   the   Supreme   Court   has   long   recognized,   the   American   Bar   Association   standards  

provide   invaluable   guidance   on   practice   and   expectations   in   representing   criminal  

defendants.  See  id.  

        The   ABA   Standards   applicable   here   illustrate   precisely   why   Aguilar’s  

performance   was   deficient.   The   ABA   Standards   relating   to   defense   counsel’s   duty   to  

investigate  provide:    
        Defense   counsel   should   conduct   a   prompt   investigation   of   the  
        circumstances  of  the  case  and  explore  all  avenues  leading  to  facts  relevant  
        to   the   merits   of   the   case   and   the   penalty   in   the   event   of   conviction.   The  
        investigation   should   include   efforts   to   secure   information   in   the  
        possession  of  the  prosecution  and  law  enforcement  authorities.  The  duty  
        to   investigate   exists   regardless   of   the   accused'ʹs   admissions   or   statements  
        to  defense  counsel  of  facts  constituting  guilt  or  the  accused'ʹs  stated  desire  
        to  plead  guilty.  
                     
        ABA  Standards  Relating  to  Criminal  Justice,  §  4-­‐‑4.1(a)  (1991)  [hereinafter  “ABA  

Standards”].  In  the  context  of  a  guilty  plea,  the  ABA  Standards  further  provide,  “Under  

no   circumstances   should   defense   counsel   recommend   to   a   defendant   acceptance   of   a  

plea   unless   appropriate   investigation   and   study   of   the   case   has   been   completed,  

including   an   analysis   of   controlling   law   and   the   evidence   likely   to   be   introduced   at  

trial.”  ABA  Standards  §  4-­‐‑6.1(b);  see  also  id.  §  14-­‐‑3.2  (1997)  (“Defense  counsel  should  not  

recommend   to   a   defendant   acceptance   of   a   plea   unless   appropriate   investigation   and  

study  of  the  case  has  been  completed.”).    Going  further,  the  ABA  Standards  also  set  out  

what  defense  counsel  should  do  in  advising  a  client  after  such  an  investigation  has  been  

completed:  

                     (a)  After  informing  himself  or  herself  fully  on  the  facts  and  the  law,  
             defense   counsel   should   advise   the   accused   with   complete   candor  
             concerning   all   aspects   of   the   case,   including   a   candid   estimate   of   the  
             probable  outcome.  
                       
                     (b)  Defense  counsel  should  not  intentionally  understate  or  overstate  
             the  risks,  hazards,  or  prospects  of  the  case  to  exert  undue  influence  on  the  
             accused'ʹs  decision  as  to  his  or  her  plea.  
                       
Id.  §  4-­‐‑5.1  (emphasis  added).    
        Here,  Aguilar’s  performance  was  deficient.  He  did  not  advise  Vargas  of  anything  

other  than  what  his  guilty-­‐‑plea  options  were.  He  never  discussed  the  facts  with  him.  No  

notes   appear   in   the   file.   He   never   discussed   or   filed   a   motion   to   suppress.   He   never  

even  showed  Vargas  any  of  the  discovery.  The  Fifth  Circuit  has  made  clear,  this  is  not  

acceptable   conduct   for   defense   attorneys.   Moore   v.   Johnson,   185   F.3d   244,   261   (5th   Cir.  

1999)   (“The   Court   is,   therefore,   not   required   to   condone   unreasonable   decisions  

parading   under   the   umbrella   of   strategy,   or   to   fabricate   tactical   decisions   on   behalf   of  

counsel   when   it   appears   on   the   face   of   the   record   that   counsel   made   no   strategic  

decision  at  all.”).  No  justification  exists  for  not  discussing  the  facts  with  your  client.  This  

Court  should  not  condone  or  invent  one.    

        Finally,   much   like   “informed   consent”   in   the   medical   field,      “[c]ounsel   must  

ensure   that   guilty   pleas   are   entered   only   as   an   informed   and   voluntary   choice,   by  

actually  and  substantially  assisting  the  defendant  in  deciding  whether  to  plead  guilty.”  

United  States  v.  Juarez,  672  F.3d  381,  388  (5th  Cir.  2012).  Actual,  substantial  assistance  can  

only   happen   when   “appropriate   investigation   and   study   of   the   case   has   been  

completed,   including   an   analysis   of   controlling   law   and   the   evidence   likely   to   be  

introduced  at  trial.”  ABA  Standards  §  4-­‐‑6.1(b).  Indeed,  it  is  the  lawyer’s  job  to,  

        provide   the   accused   an   understanding   of   the   law   in   relation   to   the   facts.  
        The   advice   he   gives   need   not   be   perfect,   but   it   must   be   reasonably  
        competent.   His   advice   should   permit   the   accused   to   make   an   informed  
        and   conscious   choice.   In   other   words,   if   the   quality   of   counsel'ʹs   service  
        falls   below   a   certain   minimum   level,   the   client'ʹs   guilty   plea   cannot   be  
        knowing  and  voluntary  because  it  will  not  represent  an  informed  choice.  
       And   a   lawyer   who   is   not   familiar   with   the   facts   and   law   relevant   to   his  
       client'ʹs  case  cannot  meet  that  required  minimal  level.  
         
United   States   v.   Cavitt,   550   F.3d   430,   440-­‐‑41   (5th   Cir.   2008)   (citations   and   quotations  

omitted).  Aguilar’s  performance  was  deficient.    

                                                     Prejudice  

    The   second   part   of   the   Strickland   analysis   requires   Vargas   to   show   that   Aguilar’s  

performance   prejudiced   him.   Vargas   must   demonstrate   that   there   is   a   “reasonable  

probability”  that  but  for  Aguilar’s  errors,  he  “would  not  have  pleaded  guilty  and  would  

have   insisted   on   going   to   trial.”   Hill   v.   Lockhart,   474   U.S.   52,   59   (1985).   A   reasonable  

probability   is   “a   probability   sufficient   to   undermine   confidence   in   the   outcome.”  

Strickland   v.   Washington,   466   U.S.   668,   694   (1984).   This   is   more   than   a   mere   possibility  

but  “less  than  a  preponderance  of  the  evidence  that  the  error  affected  the  trial.”  United  

States  v.  Juarez,  672  F.3d  381,  388  (5th  Cir.  2012)  (citation  omitted).  

    Vargas   had   legitimate   potentially   exonerating   defenses.   First,   the   stop   was  

questionable   at   best,   if   not   outright   illegal.   Second,   the   continued   detention   of   Vargas  

was  unreasonable.  United  States  v.  Macias,  658  F.3d  509,  522  (5th  Cir.  2011)  (holding  that  

trooper’s   asking   questions   unrelated   to   initial   reason   for   the   stop   illegally   prolonged  

traffic   stop).   Third,   the   fact   that   the   “affirmative   links”   doctrine   was   never   discussed  

with   Vargas   is   devastating,   especially   given   that   multiple   people   had   access   to   and  

drove  Vargas’s  vehicle.  Finally,  Vargas  was  not  actually  in  possession  of  any  drugs.  No  
proof  existed  that  he  knew  he  possessed  anything  other  than  empty  baggies  containing  

“trace,”  immeasurable  amounts  of  a  controlled  substance.    

     Vargas  is  not  required  to  prove  his  innocence,  or  even  that  he  would  have  received  a  

better   outcome.   Rather,   he   is   only   required   to   prove   that   he   would   not   have   actually  

pled   guilty   had   he   been   made   aware   of   his   options   by   a   standard   less   than   a  

preponderance  of  the  evidence.  Vargas’s  affidavit  makes  clear  that  he  would  not  have  

pled  guilty  and  far  exceeds  this  standard.  Vargas  was  prejudiced.    

     E. Vargas’s  ineffective  assistance  claim  was  not  waived  by  his  guilty  plea.  
  
         Vargas  anticipates  the  State  will  argue  that  any  claims  of  ineffective  assistance  of  

counsel  were  waived  when  he  pled  guilty  to  the  offense,  but  this  is  no  longer  the  law.  

The   Supreme   Court   has   recently   addressed   ineffective   assistance   of   counsel   in   the  

context  of  guilty  pleas.  Padilla  v.  Kentucky,  559  U.S.  356  (2010);  Missouri  v.  Frye,  132  S.Ct.  

1399   (2012).   The   Padilla   court   explained   that,   “the   negotiation   of   a   plea   bargain   is   a  

critical   phase   of   litigation   for   purposes   of   the   Sixth   Amendment   right   to   effective  

assistance  of  counsel.”  Padilla,  559  U.S.  at  373.  There,  the  Court  held  that  an  attorney’s  

failure   to   properly   advise   the   defendant   of   collateral   immigration   consequences  

stemming  from  a  guilty  plea  constituted  ineffective  assistance.  Id.  at  375.  In  doing  so  the  

Court   necessarily   overruled   prior   authority   holding   that,   “once   a   guilty   plea   has   been  

entered,   all   nonjurisdictional   defects   in   the   proceedings   against   a   defendant   are  

waived.”   Smith   v.   Estelle,   711   F.2d   677,   682   (5th   Cir.   1983).   Any   remaining   doubt   over  
the  calculus  of  the  Court’s  ruling  in  Padilla  was  removed  by  Frye:  “[Padilla]  also  rejected  

the   argument   made   by   petitioner   in   this   case   that   a   knowing   and   voluntary   plea  

supersedes   errors   by   defense   counsel.”   Frye,   123   S.Ct.   at   1406.   In   other   words,   the  

Supreme  Court  now  routinely  rejects  Estelle’s  logic  that  if  a  plea  is  “voluntary,  it  follows  

that  claims  of  ineffectiveness  unrelated  to  the  guilty  plea  are  waived.”  Estelle,  711  F.2d  

at   682   (denying   ineffective   assistance   claims   based   on   failure   to   investigate   prior   to  

advising   defendant   to   plead   guilty).   And   the   Fifth   Circuit   has   followed   suit.   United  

States  v.  Juarez,  672  F.3d  381  (5th  Cir.  2012).  

        In   Juarez,   the   Court   held   that   an   attorney’s   failure   to   investigate   a   potential  

defense  was  not  cured  by  a  subsequent  guilty  plea.  Id.  at  389.  There,  Juarez  pled  guilty  

both   to   lying   about   his   U.S.   citizenship   on   an   application   to   purchase   firearms   and   to  

illegal  re-­‐‑entry.  Id.  at  384.  Although  Juarez’s  mother  was  a  naturalized  citizen,  Juarez’s  

trial   counsel   never   advised   him   that   derivative   citizenship   was   a   defense   to   both   of  

these  offenses.  Id.  at  385-­‐‑86.  Trial  counsel  also  “did  not  know  that  Juarez  could  be  a  U.S.  

citizen  as  other  people  did  not  inform  him  of  this  possibility.”  Id.  at  385.  Although  the  

legal  interpretation  of  whether  Juarez  was  able  to  qualify  for  the  derivative  citizenship  

defense   was   unsettled,   the   Fifth   Circuit   held   that   at   the   time   of   Juarez’s   pleas,   “a  

derivative  citizenship  defense  was  plausible.”  Id.  at  387.  The  Juarez  court  concluded,    

        Juarez'ʹs   guilty   pleas   were   not   entered   knowingly   or   voluntarily   because  
        [trial   counsel]   advised   him   without   investigating   derivative   citizenship.  
        “[A   defendant]   who   does   not   receive   reasonably   effective   assistance   of  
          counsel   in   connection   with   his   decision   to   plead   guilty   cannot   be   said   to  
          have  made  that  decision  either  intelligently  or  voluntarily.”  
            
Id.  at  390  (quoting  Mason  v.  Balcom,  531  F.2d  717,  725  (5th  Cir.1976)).  

         Much   like   trial   counsel   in   Juarez   had   a   duty   to   investigate   the   facts   and   law  

underlying   a   “plausible”   defense,   Aguilar   had   a   duty   to   investigate   the   facts   and   law  

underlying   legitimate,   potentially   exonerating   defenses   for   Vargas.   Because   Aguilar  

failed   to   do   this   —   a   decision   contrary   to   established   federal   precedent   and  

unsupported   by   any   reasonable   argument   —   Vargas   was   denied   constitutionally  

effective  assistance  of  counsel.    


                                    III.     CONCLUSION  &  PRAYER  

         WHEREFORE,   PREMISES   CONSIDERED,   Defendant   prays   that   this   Court   set   this  

matter   for   an   evidentiary   hearing   and   at   the   close   thereof,   grant   this   motion   for   new  

trial,  and  vacate  the  judgment  and  sentence  in  this  case.    

                                                               Respectfully  submitted,  
                                                                 
                                                               Hurley,  Guinn  &  Sellers  
  
                                                                 
                                                               By:  _____________________________  
                                                                        Frank  Sellers  
                                                                          Texas  Bar  No.  24080305           
                                                                 
                                                               1805  13th  Street  
                                                               Lubbock,  Texas  79401  
                                                               P:  806.771.0700  
                                                               F:  806.763.8199  
                                                               ATTORNEYS  FOR  DEFENDANT  
  
                                         Certificate  of  Service  
                                                        
       I  certify  that  today,  October  1,  2014,  a  copy  of  the  foregoing  was  mailed  to  the  
Dawson  County  District  Attorney’s  Office.  
  
  
                                                          _____________________________  
                                                          Frank  Sellers  
  
                                     Certificate  of  Presentment  
                                                        
       I  certify  that  today,  October  1,  2014,  a  copy  of  the  foregoing  was  emailed  to  the  
Judge  of  this  Court,  along  with  a  blank  Order  Setting  Hearing.    
  
  
                                                          _____________________________  
                                                          Frank  Sellers  
  

  

       

       

       
                                   INDEX  OF  EXHIBITS  

     A. Affidavit  of  Victor  Vargas  

     B. Affidavit  of  Darcy  Vargas  

     C. Trooper  Garza’s  Report  

     D. DPS  Lab  Report  

     E. Contract  for  Indigent  Defense  in  the  106th  Judicial  District  Court  of  Texas  (file  
        marked  December  9,  2013)  

     F. Letter  from  Judge  Schildknecht  to  Joel  Lieurance,  Policy  Monitor  at  TIDC  (July  
        19,  2013)  

     G. Texas  Indigent  Defense  Commission,  Review  of  Gaines  County’s  Indigent  
        Defense  Systems  (June  11,  2013)  

     H. Affidavit  of  Philip  Wischkaemper  

     I. Affidavit  of  Frank  Sellers  

  

  
                 
                 
                 
                 
                 
                 
        Exhibit  A  
Affidavit  of  Victor  Vargas  
                                          AFFIDAVIT

THE STATE OF TExAS                               §
                        .                        §
COUN1YOF     ~°':to(\c_,                         §

Before me, the undersigned authority, personally appeared Victor Vargas, who upon his oath
deposed and stated the following:

    My name is Victor Vargas. I am over the age of 18, of sound mind, competent to make this
affidavit, and have personal knowledge of the facts below. I have prepared this affidavit with the
help of my new lawyer, Frank Sellers.

    I was driving from Lubbock, TX to San Angelo, TX on August 9, 2012. I was in a lowered
Cadillac Coupe Deville that had previously been used by my brother and mend. As I was driving
on Highway 87, I noticed an officer on the other side of the road. The officer drove up beside me
and remained directly next to my vehicle for a short period of time. The officer then pulled me
over because he believed that I "looked fatigued." After the officer explained to me that I would
receive a warning and receiving the same, the officer asked for consent to search. Thinking there
was nothing to hide, I gave the officer this consent

    There were three to four large suitcase-type bags located in the trunk of the vehicle. Small
plastic baggies were found in one bag that also contained my tattoo equipment There were many
clean, unused small plastic baggies within this larger bag. However, two small green baggies
were mixed in amongst the clean baggies. Upon inspecting these two green baggies, the officer
detected a tiny amount of what he believed was drug residue on the inside. I was then arrested
for felony possession of a controlled substance less than I gram. I was held in Dawson County
Jail with a $10,000 bond. I was unable to get a bond because I was an out of town traveler and
considered a ffight risk. My only option was to wait in jail until my attorney and I could sort
everything out

    While in jail, I received a letter from Artie Aguilar notifying me that he would be serving as
my court appointed lawyer in this matter. When I received this letter I had my wife, Crystal
Vargas, contact Artie almost immediately. After many attempts, she was unable to reach him.
After about 70 days in jail Crystal tried many more times to contact Artie, each time was
unsuccessful. Crystal was finally able to reach Artie. But Artie told Crystal that he couldn't talk
to her because all the infonnation in my case was confidential.

    Other than Artie's first letter, I had not heard from him in any way while I was in jail. After
almost 90 days I wrote a letter to Artie, informing him that I had not been indicted and that I
wanted to file a writ of habeas corpus. I never received a letter in return from Artie, but two
weeks later received notice that I would be having a hearing for habeas relief. Artie and I were
both present for this hearing. This was the first time I had spoken to Artie aside from the initial
letter he sent me. In November201~ the judge granted me habeas relief because I still had not
yet been indicted. With some stipulations, I was released from jail.
    After my release, I called and sent letters to Artie hoping to resolve my legal issues. Also, I
was planning a move from San Angelo to Houston early in 2013 and knew that-as a condition
of my release-I would need to inform both my attorney and the county. Each time I tried to
reach Artie and inform him of this move I was unsuccessful. I reached Artie's secretary (his
father) multiple times and left mesages. However, I never received a return phone call or any
letters from Artie. After my November 2012 habeas hearing, I was unable to get in contact with
Artie again until February of 2014.

    In February of2014, I was pulled over for having expired license plates in Houston and
subsequently mested due to a pending indicbnent in Dawson County. Artie had not notified me
of this indictment I was never told that there was even a possibility of trial. At this time, my wife
and mother (Darcy Vargas) began calling Artie's office in hopes of getting more details on the
indictment. Both were unsuccessful on nearly every attempt. My mother was finally able to get a
hold of Artie, only to be cussed out for calling too much and then hung up on.

    The next time I saw Artie was in April of 2014 at my arraignment in Dawson County. I was
told that I would need to come back and enter my plea in June of2014 at 9:00 A.M. Although I
now lived in Houston, I drove to Dawson County and arrived at the scheduled time. I was told
that by Artie that the District Attorney wam't ready at all and that they didn't have anything
prepared. This hearing was rescheduled and I was forced to drive all the way back to Houston.

    The next court date should have been July 2, 2014. Artie told me that he was going to try to
set up a way where I could avoid having to drive in from Houston again. In late June, I received
a call from Artie saying that I had received a second plea offer. At this time, I told Artie that I
didn't even knew of the first plea offer. Artie told me that I had been previously been offered a
plea of S years state jail confinement with 4 years of or community supervision. I do not know
when Artie received the first offer. Artie told me that he had "already told them that you weren ,t
going to take il,,

    The second plea offer was for 2 years of state jail confinement with 3 years of community
supervision. I asked Artie if he would be able to get anything less. He told me that I was lucky
they offered me this because for a while they dido 't want to come down from S years. Once
again, I was unaware that prior negotiations and/or offers had ever taken place. I was basically
told to take it or leave it on this second offer. Artie also told me that he would be able to move
my court date from July 2, 2014, to July23, 2014. After speaking with my wife, I decided that I
had no choice but to take the second offer.

    From my original arrest on August 9, 2012, until July 23, 2014, almost all of the contact that
I have ever had with Artie has been inside the court room. I have never seen any discovery
(police reports, lab report, or video). I do not know if or when Artie got the discovery.
Throughout this entire process, Artie bas been nearly impossible to reach.

   Artie told me that I had no choice but to either take the final deal or go to trial and get the
maximum sentence. I asked him about whether the stop was legal. I asked him about the lab
report and whether there was even enough to charge me. Artie never discussed any options other
than pleading guilty with me.


Amdavlt or Victor Vargas- Page 2
    While leaving the courthouse after my plea, attorney Frank Sellers overheard my Mom and I
arguing about the plea deal I had just been forced to take. Mr. Sellers inquired about my limited
knowledge of the facts of my case. He agreed to help me file a motion for new trial without any
cost to me.

    Mr. Sellers received the discovery ftom Artie. He then showed it to me. This was the first
time I had seen a police report, lab report, and video. He also explained to me that the stop and
consent to search my vehicle appeared to be unconstitutional. He said that these were legitimate
defenses that could have been raised both before trial in front of the judge at a suppression
hearing, as well as in ftont of the jury. Additionally, he explained the legal concept of
"affinnative links," requiring the State to link me to anything in the car because multiple people
had access to the vehicle.

   I am not guilty of the charge I pied guilty to. Had Artie explained anything to me about the
suppression bearing or affirmative links, and/or if I had had the opportunity to view the video
and see the reports, I would not have pied guilty. Instead, I would have insisted on going to trial
- regardless of the outcome.




Subscribed and sworn to before me on August     1±, 2014, by Victor Vargas.

                    MAYRA AVILA
                     Notary Pubtlc
                   STATE OF TEXAS
                 My Camm. Exp. OM&-18




Amdavlt of Victor Vargas- Page 3
                 
                 
                 
                 
                 
                 
        Exhibit  B  
Affidavit  of  Darcy  Vargas
                                          AFFIDAVIT

DIE STATE OF TEXAS                                §
                                                  §
                                                  §

Before me, the undersigned authority, personally appeared Darcy Vargas, who upon her oath
deposed and stated the following:

    "My name is Darcy Vargas. I am over the age of 18, of sound mind, competent to make this
affidavit, and have personal knowledge of the facts below. I have prepared this affidavit with the
help of my son's new lawyer, Frank Sellers.

    I, Darcy Vargas, have been involved in this case ever since my son Victor was arrested in
Houston and infonned that he had a warrant in Dawson County. Prior to the anest in Houston, I
had called Artie Aguilar maybe once or twice before. This previous call was just to notify Artie
that Victor planned to move in with me in Houston. Because nobody was able to get a hold of
Artie, Victor and I decided the best thing to do was to send a letter to his office with the address
of Victor's new residence in Houston.

    After Victor's arrest, I called Artie many times hoping to get some infonnation about the
warrant in Dawson County. I called his office many, many times with no answer. I was often
unable to leave voicemails because the phone would just keep ring endlessly. After many failed
attempts, I was finally able to reach a male who seemed to be acting as Artie's secretary. 1 cannot
recall if this man told me his name or not. I told the secretary that I needed to speak with Artie
immediately because we were not aware that a warrant had been issued in Dawson County.

    Within a day or two, I spoke with Artie for the first time. He called in the afternoon and
asked what I wanted, to which I said we needed infonnation on Victor's case. Artie responded
that there had been a sealed indictment and that it was not his responsibility to infonn Victor
about iL After a brief conversation about why we weren't made aware ofthe sealed indicbnent,
Artie finally asked me, "What do you want?" I answered that I just wanted infonnation, records,
or anything that could help get my son out ofjail in Houston. I will never forget his response. He
responded, "Access Denied. Now what do you want?" Once again r requested the same
infonnation. Artie then said, "Look lady, quit being a bitch." Shocked by how unprof~onal he
was, I responded, "Excuse me? You did not just call me the 8-Word." Artie then said, "Well
lady, you heard me" and hung up the phone on me. I found this disrespectful conduct particularly
surprising coming from a lawyer.

    In June of2014, Artie called me and said that I needed to have Victor call him because he
had been given a plea offer. Victor called Artie back and was able to get a hold of Artie. This is
when Victor was told of the offer that he eventually accepted.

    Before accepting this plea, neither Victor nor I were able to view any police reports, any lab
reports, or the video ofVictor's stop and arrest I found Mr. Aguilar's behavior unacceptable and
oflowest caliber ofany professional I have ever dealt with. His legal work was not much better."
Subscribed and sworn to before me on AugustJL 2014, by Darcy Vargas.




                                                           MAYRA AVILA
                                                            Notaty PubDc
                                                           STATE OF TEXAS
                                                         ~Comm. exp. OM•1a




Amdavlt of Darcy Varaas- Paae 2
             
             
             
      Exhibit  C  
Trooper  Garza’s  Report
                                         \•

THP·1 (8/04)                              QXAS DEPARTMENT OF PUBLIC                SAFf:Q                   TRAFFIC
                                            TEXAS HIGHWAY PATROL DIVISION                            _.!__ CRlMINAL
                                                   OFFENSE REPORT                                          SCHOOL NOTIFICATION
                                                                                                      REQUIREO(ART. t5.27CCP)
REPORT DATE:           08/09/12
FILE TITLE                                                       INVESTIGATING OFFICER:
1.
2.
      Vargas, Victor James
      522 e. 24111 Street
                                                                   TYPmNAME:      Wa~~Ga
                                                                                     , .                            10.NR:   12989

3.    San Angelo, TX 76903                                         SIGNATURE:
4.    W/M                                                                                  AR-..--·...,;;;o;;ii4....,A--.1111-------
                                                                 REGIONIDISTR-IC_t__T11-.......
5.                                                               APPROVING SUPERVISOR:
SID#                              OL#                              lYPED NAME:    Sgt. Jason Anzaldua               10.NR:   10356
ID#      TX: 29404996             DOB           10/11/1984
OTHER:                                                             SIGNATURE:
                                                                                  --~-------------------------
RPT-RE:        1.) Possession of Controlled Substance in PG-1 < 1gram (SJF)


COMPLETE IF TRAFFIC OFFENSE AND CHEMICAL TEST IS OFFERED:
1E8T OFFERED: BREATH      BlOOD         URINE                TES1' GNEN: BREATH      BLOOD                REFUSED

1'ES1'RESUl.T: t) - - - 2) - - -                                       NO          OPERATm~I------------------

DEFENQANTCSl                                  OFFENSE<Sl                              COUNJY                  DATE/TIME
Vargas, Victor James                          Possession of Controlled                Dawson                  08/09/2012
                                              Substance In PG-1 <1 gram (SJF)                                 1:50 pm
                                              HSC Sec.481.115 (b)




Smopsls;
On Thursday August 9111, 2012 and at approximately 1:50 pm I, Trooper Wally Garza, conducted a traffic stop on
a Belge/1997/Cadfllac/4-Dr car bearing TXLP-DK4T836 for driving on the Improved shoulder. The driver was
Identified through Texas ID#: 29404996 to be Vargas, Victor James. Vargas was subsequently arrested for
Possession of Controlled Substance in PG-1 <1gram (SJF) after a vehicle search resulted In the discovery of (2)
clear blue plastic baggfes containing a white crystal like powder. The substance was field tested and was positive
for Methamphetamine. Vargas was transported to Dawson County jafl In Lamesa.TX. The vehfde was released
and towed by De La Garza to 602 S.Dallas Ave In Lamesa,TX.
                                   n                                        0
THP-1 Continuation (8/04)             TEXAS DEPARTMENT OF PUBLIC SAFETY                          Page:    2of3
                                        TEXAS HIGHWAY PATROL DIVISION
                                               OFFENSE REPORT

FILE TITLE:                                                                     COUNTY:
INVESTIGATING OFFICER:                                                          REPORT DATE:      08/09/12



Datalls:

    1. On Thursday August 911, 2012 and at approximately 1:50pm I, TrooperW.Garza, was working routine
        patrol on US87 approximately 2 miles North of Lamesa, TX.
    2. I observed a Belge/1997/Cadfllac/4-Dr Car bearing TXLP-Dk4T836 drive on the Improved shoulder as it
        was traveling southbound.
    3. I made a traffic stop on the vehicle in order to check on the conditions of the driver.
    4. I approached the passenger side door of the vehicle.
    5. I greeted the driver and advised him of the reason for the traffic stop.
    6. The driver verbally identified himself as Vargas, Victor James DOB: 10/11/1984 SSN#: XXX-XX-XXXX.
    7. During the roadside Interview with Vargas, I observed indicators of possible criminal activity.
    8. Vargas' breathing appeared to be labored as evident through the quick rise and fall of his abdomen.
    9. I asked Vargas where he was headed to and he replied, ·san Angeloa.
    10.1 asked Vargas where he was coming from and he stated, •Lubbock".
    11. I asked Vargas how long he had been in Lubbock and he stated, ·since Saturday".
    12. I asked Vargas if he had traveled alone and he replied, aNo, my wife came with me but she left back
        home early".
    13. I asked Vargas to exit his vehicle and he did so.
    14. After a check of weapons on his person, I asked Vargas to have a seat in my patrol car while I prepared
        his enforcement action (warning).
    15. Whlle continuing the roadside interview, I observed Vargas's carotid artery pulsating on the side of his
        neck.
    16. I asked Vargas why his wife had left earlier than he did and he stated, "We had an argument and her
        sister took her back to San Angelo•.
    17. After the traffic stop was completed, verbal consent to search the vehicle was requested and granted by
      . Vargas.
    18. During the vehicle search, a blue duffle bag was located inside the trunk area.
    19. The blue duffle bag contained tattoo tools and gear.
    20. Inside the blue duffle bag, a clear plastic bag containing several 1 gram empty baggies was discovered.
    21. Upon further Inspection of this clear plastic bag, (4) clear bfue baggies were also discovered.
    22. Two of the blue clear plastic baggies contained a useable amount of a white crystal like powder believed
        to be Methamphetamfne.
    23. I asked Vargas to come to the trunk area and he did so.
    24. I asked Vargas who the blue duffle bag belonged to and he stated, "It's mine, that's where I keep my
        tattoo stufr.
    25. I asked him about the clear plastic bag containing the baggies including the clear blue ones with the white
        crystal like powder but Vargas denied any knowledge.
    26. Vargas was placed under arrest and secured in the front passenger side seat of my patrol car.
    27. After a vehicle inventory (HQ-109), the vehicle was released and towed by Albert Martinez to 602
        S.Dallas Ave in Lamesa,TX.
    28. The substance was field tested and was positive for Methamphetamine and will be sent to Midland DPS
         Crime Lab for final analysis.
    29. Vargas was booked in for Possession of Controlled Substance PG-1<1g (SJF).
                                   n
I    •


                                                                           n
THP-1 Continuation (8/04)            TEXAS DEPARTMENT OF PUBLIC SAFETY                         Page:   3of3
                                       TEXAS HIGHWAY PATROL DMSION
                                              OFFENSE REPORT

    FILE TITLE:                                                                COUNTY:
    INVESTIGATING OFFICER:                                                     REPORT DATE: 08/09/12




wttnaases:
Name &Address:                                          Will Testlfv To:

Texas Department of Public Safety                       All aspects to the case
Highway Patrol
Trooper WaRy Garza
608 N. Main Ave.
Lamesa, TX. 79331
(806) 872-9494

Description and Custody of Evidence:
Descrlatlon:                                            DISPQsltlon:

         1. THP-1                                           1. Turned in to the District Attorney
         2. DVD                                             2. Attached to THP-1 Case Report
         3. Photos                                          3. Attached to THP-1 Case Report


Victims:
Name &Address:
N/A
Vehicles:
    Descrlotion:                                        Disoosition:
    Belge/1997/Cadillac/4-Dr Car bearing TXLP-Dk4T836       rereased and towed by Albert Martinez to 602
                                                            S.Dallas Ave in Lamesa.TX

    Weaoons:
    Description:                                        Disposition:
    NIA
          
          
  Exhibit  D  
DPS  Lab  Report    
          
          
          
          
          
          
                                                                                                        n
                                          TEXAS DEPARTMENT OF PUBLIC SAFETY
                                                                           CRIME LA80RA10RY
                                                                               POBox4367
                                                                             M!dland, TX 79704
                                                                   Volc:o G2-498-2t80 Fu 4Uo488.JUS
                                                                    Mldl&ndCrfmet.ab@dps.toxas.gov

     81lM!H C. UCCMW                                                                                                             COKMISSION
         OlaECTCR                                                                                                           A. C~L!OH. CHAIR
       DAVID O. BNCEA                                                                                                       CMIH MARCY BARTH
      QCBIYl MadlAIDI!                                                                                                           """SRONI
     DEPU1V Dlla!CTCAS                                                                                                       AU.Mt& POWN8KY

                                                       Controlled Substance Analysis Laboratory Report
                                                                 Issue Date:    December 28, 2012
          Wally Garza                                                                                 Laboratory# MID-1208-01608
          Texas Highway Patrol                                                                            Agency# TX12660DYB008
          608N Main                                                                                        County: Dawson
          Lamesa. TX 79331
                                                                                                      Offense Date: 08/0912012
        Suspectls>;           Vargas, Victor James (DOB 10/11/84)

        Requested Analysis: Examine for the presence of Controlled Substances
        SubmJsslqn lnfonnaflon:
               01: 9x12 yellow envelope on August 13, 2012 by Garza, WaDy VIA Certified Mail 70112970000425712709
        Eyldtnce Dascdptlon. Results of Analyafa and lntemretatlon:
        01: Property Sealed 9x12 yellow envelope
           01.01-AA: Exhlblt#1 Blue zlploc containing white 19Gldue
              Contains Methamphetamlne
                  Trace net weight
                  1 of 1 Items were sampled for analysis

           This report has been electronlcally prepared and approved by:

          Marissa SBva
          Forensic Scientist
          Texas DPS Mfdland Crime Laboratory




                              ACCREOnEO BVTHEAME!RICAN SOCIE1YOFCRIMEtA80RAnmYOtRSCRmS • tABACCREOl'l'ATIOH BOARD
lllB!lllllmf!IDllODmJllllIDIWllll!IDHllltlil(l(lllfD               COURTESY • SERVICE • PROTECTION                                      Page 1-of1
fJGP8 IUl.t2
  

  


                                        Exhibit  E  
     Contract  for  Indigent  Defense  in  the  106th  Judicial  District  Court  of  Texas    
                             (file  marked  December  9,  2013)  
                                                   
                                                   
                        CoNTRACT FOR INDIGENT DEFENSE
                                      IN
                THE 106TH JUDICIAL DISTRICT CoURT OF TEXAS
                DAWSON, GAINES, GARZA AND LYNN COUNTIES

I.   INTRODUCTION
     The county of Dawson ("COUNTY',) and The Law Offices of Arthur Aguilar, Jr.
     ("ATTORNEY") are the parties to this agreement. The District Judge of the 106th Judicial
     District ("DISTRICT JUDGE") is the appointing authority approving ATTORNEY to
     represent indigent criminal defendants in COUNTY. This agreement establishes conditions
     under which ATTORNEY will provide legal representation for indigent criminal
     defendants in COUNTY.

2.   SCOPE OF WORK
     ATIO RNEY will provide legal representation for indigent criminal defendants in
     COUNTY for felony cases only. Under this contract, a felony will be considered to be any
     criminal offense that carries a possible punishment of confinement in excess of one year or
     that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First
     Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will
     represent only those defendants designated by DISTRICT JUDGE, and no file shall be
     opened or appearance made under this contract except by order of DISTRICT JUDGE.
     ATIO RNEY shall represent such defendants in the trial court and on direct appeal in any
     of the appellate courts to which such case is appealed. Post conviction writs are
     extraordinary and are NOT covered in this contract. Capital Murder Trials where the State
     elects to pursue the Death Penalty are NOT covered in this contract. This contract does
     not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an
     indigent defendant has a misdemeanor charge as well as a felony charge, ATIO RNEY will
     handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor
     charge is taken into account in determining sentence for the felony offense as provided in
     Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will consider the
     indigent defendant to be under this contract for only the felony case. ATTORNEY shall
     meet qualifications and shall devote time, attention and energies to the performance of
     duties under this contract pursuant to the provisions of the I 06th Judicial Districfs Local
     Indigent Defense Plan, including but not limited to the qualifications set out in the
     Application/Affidavit for the I 06th Judicial District Court Attorney Appointment List.
     DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure
     that the quality and effectiveness of ATTORNEY's representation of defendants is not
     compromised and that each defendant is being provided effective representation. If
     DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is
     falling below that which is expected by the Court, DISTRICT JUDGE will make
     adjustments to ATTORNEY's caseload. ATIORNEY's caseload under this contract shall
     not exceed 400 actual cases over the entire four counties of the 106th Judicial District.
3.   CONTRACT PERIOD
     This agreement shall commence on January 1, 2014, and shall terminate September 30,
     2014, unless terminated earlier by either party. The parties shall have an option to renew
     the contract for additional years, and prior to July 1, 2014, the parties will revisit the
     contract to consider any desired modifications to the terms and conditions of this contract.

4.   CONSIDERATION
     The parties agree that if this contract covered the legal representation for indigent criminal
     defendants in all four counties of the 106th Judicial District, the total consideration for legal
     representation at the trial court level would be $49,500.00 for the nine month contract
     period.

     The consideration for legal representation at the trial court level under this contract
     between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,
     payable in monthly installments, based on indigent defense provided under the 2013
     Contract for Indigent Defense in each of the four counties of the 106th Judicial District.
     COUNTY agrees to pay ATTORNEY for services at the trial court level a monthly amount
     for COUNTY's pro rata share as follows:

             Dawson County                   $18,062.55 for contract         $ 2,006.95 monthly
             Gaines County                   $ 16,844.85 for contract        $ 1,871.65 monthly
             Garza County                    $ 9,207.00 for contract         $ 1,023.00 monthly
             Lynn County                     $ 5,385.60 for contract         $ 598.40 monthly

     The above amount is the total consideration to be paid by COUNTY for legal
     representation of indigent criminal defendants at the trial court level for all cases opened
     during the term of this contract, and ATTORNEY shall furnish at his own cost all
     equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and
     all other trial court expenses except as provided otherwise in this contract.

     In consideration for ATTORNEY's appellate representation of COUNTY's indigent
     criminal defendants under this contract, COUNTY agrees to pay additional ATTORNEY's
     fees for legal services at the rate accepted in this area for such services and approved by
     DISTRICT JUDGE. If ATTORNEY is required to travel to the appellate court for
     representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses
     for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.

     COUNTY shall not be obligated for any other additional amount or expenses unless
     specifically designated in this agreement or required by law, detailed in the Request to Pay
     Counsel, and approved by DISTRICT JUDGE.

     If the renewal option is exercised, COUNTY's designated monthly percentage will be
     adjusted to reflect the number of COUNTY's cases under the contract in trial court


CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY                                                 PAGE2
     compared to the number of trial court level cases under the contract in the entire 106th
     Judicial District during the previous contract.

5.   EXPERTS, INVESTIGATORS, AND INTERPRETERS
     ATIORNEY will obtain prior approval of expenses for investigation and for experts by
     filing a motion in the 106th Judicial District Court, stating the need for such assistance and
     the estimated expense. Investigative or expert expenses incurred with prior court approval
     shall be reimbursed as provided in the order granting approval. Investigative or expert
     expenses incurred without prior approval shall be reimbursed only if necessarily and
     reasonably incurred. ATIORNEY will arrange for interpreters when the need exists.
     Expenses for interpreters shall be paid by COUNTY after approval by DISTRICT JUDGE.

6.   CHANGE OF VENUE
     If there is a change of venue which moves a case from the boundaries of the 106th Judicial
     District, then ATIORNEY will be allowed his actual expenses in regard to lodging, meals,
     court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE
     in the original jurisdiction. Any such expenses should be discussed, if at all possible, with
     DISTRICT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)
     outside the 106th Judicial District will be paid at the prevailing state rate. All other fees
     designated herein will be the responsibility of and paid by the County of original
     jurisdiction.

7.   ASSIGNMENT
     ATIORNEY may employ an associate attorney(s) to assist in representing defendants
     under this contract with the prior consent and approval of DISTRICT JUDGE, but only
     at ATIORNEY's sole expense. ATIORNEY shall not assign its entire rights under this
     contract or delegate the entire performance of its duties under this contract.

8.   CONFLICTS
     ATIORNEYwillnotifytheofficeofDISTRICTJUDGEassoonasATIORNEYisaware
     of ethical conflicts between indigent defendants and will file a Motion to Withdraw and be
     responsible to set the case for a hearing regarding the ethical conflict for consideration if
     deemed necessary by the Court.

9.   REPORTS
     ATIORNEY shall compile a year-end report giving the number of indigent defendants
     served, the number of individual cases handled, the types of cases, the disposition of the
     cases handled, and any other reporting information required to be in compliance with the
     law. Such report shall identify the cases by county and shall include cases for the other
     contracting counties in the 106th Judicial District as well as COUNTY's cases. For approval
     and payment, ATIORNEY shall provide itemized interim progress reports to COUNTY
     and DISTRICT JUDGE as requested for indigent defense expenditure reports. Payment
     shall be made by COUNTY after approval by DISTRICT JUDGE.




CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY                                              PAGE3
10.   ATTORNEY'S PRIVATE PRACTICE
      It is agreed that ATTORNEY may maintain a private practice. It is further agreed and
      understood that ATTORNEY's private practice will not interfere in any material manner
      with the indigent criminal defense cases provided for in this contract.

11.   TERMINATION
      If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a
      majority vote of the Commissioners Court of COUNTY. Either party may terminate with
      90 days notice by Certified Mail to the other party. ATTORNEY shall complete all cases
      that are open as of the date of the termination notice unless relieved or replaced by
      DISTRICT JUDGE.

12.   AMENDMENTS
      Any alterations, additions or deletions in the terms and conditions of this contract shall be
      by written amendment approved by DISTRICT JUDGE and executed by ATTORNEY
      and the Commissioners Court of COUNTY.

13.   SEVERABILITY
      If any provision of this contract is construed to be illegal or invalid, such construction will
      not affect the legality or validity of any of its other provisions. The illegal or invalid
      provision will be deemed severable and stricken from the contract as if it had never been
      incorporated herein, but all other provisions will continue.

14.   SURVIVALOFTERMS
      Termination of this contract for any reason shall not release either party from any liabilities
      or obligations set forth in this contract that the parties have expressly agreed in writing shall
      survive any such termination or which by their nature would be intended to be applicable
      following such termination.

15.   INDEPENDENT CONTRACTOR
      It is agreed that ATTORNEY is an independent contractor and that this contract does not
      create an employment relationship between COUNTY and ATTORNEY. ATTORNEY,
      not COUNTY, will be responsible for appropriate payment of social security taxes and
      federal income taxes applicable to the consideration received by ATTORNEY under this
      contract.

      COUNTY shall not be liable or responsible and shall be saved and held harmless by
      ATTORNEY from and against any and all suits, actions, claims or liability of any character
      arising out of the performance of ATIORNEY under this contract, including claims and
      damages arising from acts of negligence or acts of malpractice of ATTORNEY.

16.   NO WAIVER OF SOVEREIGN IMMUNITY
      THE PARTIES EXPRESSLY AGREE THAT NO PROVISION OF THIS CONTRACT
      IS IN ANY WAY INTENDED TO CONSTITUTE AWAIVER BY COUNTY OR THE



CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY                                                  PAGE4
           STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY
           THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF
           LAW.

17.        GOVERNING LAW AND JURISDICTION
           This contract shall be construed in accordance with and governed by the laws of the State
           of Texas, except for its provisions regarding conflicts of laws. The venue of any suit
           brought for any breach of this contract is fL\'.ed in any court of competent jurisdiction in
           Dawson County, Texas. All payments under the contract shall be due and payable at
           ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement
           between the parties. No prior agreement of understanding, oral or otherwise, of the parties
           or their agents will be valid or enforceable unless embodied in this contract. The County
           Judge of COUNTY has signed this agreement pursuant to the authority placed in him by
           the Commissioners Court. Any signatory executing this contract on behalf of either
           ATTORJ.'JEY or COUNTY warrants and guarantees that he has authority to execute this
           contract on behalf of ATTORNEY or COUNTY and to validly and legally bind
           ATTORNEY and COUNTY to the provisions of this contract.

EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.

                                                 COUNTY:
.."'       . ' ... ..      ·.


ATTEST:
       .

           . ... . . ...        '
                                    --
                                             ~       .
                                                                                         <




GaloJt.Mv \Jn1 g. ) Ox./;· <1&\()1A&1\J{A~                      Date: _       _._W
                                                                                 """'--_-_
                                                                                         !tf-
                                                                                           _ [,.....l"-----
Gloria Vera, Cow1ty Clerk, Dawson County

                                         ATTORNEY:

                                         THE LAW OFFICES OF AR.THUR AGUILAR, JR.


                                         By:-------1.,~
                                                      ~~~
                                                        ~9--
                                         Date:
                                                         -
                                                   { L ,_ ( ~     f)


                                         ~2.~
                                         Carter T. Schildknecht, District Judge

                                         Date:])e~W                    -4-)
                                                                                 LO L3

CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY                                                      PAGES
                     CONTRACT FOR INDIGENT DEFENSE
                                     IN
                THE 106TH JUDICIAL DISTRICT CoURT OF TEXAS
                DAWSON, GAINES, GARZA AND LYNN CoUNTIES

1.   INTRODUCTION
     The county of Gaines ("COUNTY") and The Law Offices of Arthur Aguilar, Jr.
     ("ATTORNEY") are the parties to this agreement. The District Judge of the 106th Judicial
     District ("DISTRICT JUDGE") is the appointing authority approving ATTORNEY to
     represent indigent criminal defendants in COUNTY. This agreement establishes conditions
     under which ATTORNEY will provide legal representation for indigent criminal
     defendants in COUNTY.

2.   SCOPE OF WORK
     ATTORNEY will provide legal representation for indigent criminal defendants in
     COUNTY for felony cases only. Under this contract, a felony will be considered to be any
     criminal offense that carries a possible punishment of confinement in excess of one year or
     that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First
     Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will
     represent only those defendants designated by DISTRICT JUDGE, and no file shall be
     opened or appearance made under this contract except by order of DISTRICT JUDGE.
     ATTORNEY shall represent such defendants in the trial court and on direct appeal in any
     of the appellate courts to which such case is appealed. Post conviction writs are
     extraordinary and are NOT covered in this contract. Capital Murder Trials where the State
     elects to pursue the Death Penalty are NOT covered in this contract. This contract does
     not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an
     indigent defendant has a misdemeanor charge as well as a felony charge, ATTORNEY will
     handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor
     charge is taken into account in determining sentence for the felony offense as provided in
     Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will consider the
     indigent defendant to be under this contract for only the felony case. ATTORNEY shall
     meet qualifications and shall devote time, attention and energies to the performance of
     duties under this contract pursuant to the provisions of the 106th Judicial District's Local
     Indigent Defense Plan, including but not limited to the qualifications set out in the
     Application/Affidavit for the 106th Judicial District Court Attorney Appointment List.
     DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure
     that the quality and effectiveness of ATTORNEY's representation of defendants is not
     compromised and that each defendant is being provided effective representation. If
     DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is
     falling below that which is expected by the Court, DISTRICT JUDGE will make
     adjustments to ATTORNEY's caseload. ATTORNEY's caseload under this contract shall
     not exceed 400 actual cases over the entire four counties of the 106th Judicial District.
3.   CONTRACT PERIOD
     This agreement shall commence on January 1, 2014, and shall terminate September 30,
     2014, unless terminated earlier by either party. The parties shall have an option to renew
     the contract for additional years, and prior to July 1, 2014, the parties will revisit the
     contract to consider any desired modifications to the terms and conditions of this contract.

4.   CONSIDERATION
     The parties agree that if this contract covered the legal representation for indigent criminal
     defendants in all four counties of the 106m Judicial District, the total consideration for legal
     representation at the trial court level would be $49,500.00 for the nine month contract
     period.

     The consideration for legal representation at the trial court level under this contract
     between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,
     payable in monthly installments, based on indigent defense provided under the 2013
     Contract for Indigent Defense in each of the four counties of the 106m Judicial District.
     COUNTY agrees to pay ATTORNEY for services at the trial court level a monthly amount
     for COUNTY's pro rata share as follows:

             Dawson County                  $18,062.55 for contract         $ 2,006.95 monthly
             Gaines County                  $ 16,844.85 for contract        $ 1,871.65 monthly
             Garza County                   $ 9,207.00 for contract         $ 1,023.00 monthly
             Lynn County                    $ 5,385.60 for contract         $ 598.40 monthly

     The above amount is the total consideration to be paid by COUNTY for legal
     representation of indigent criminal defendants at the trial court level for all cases opened
     during the term of this contract, and ATTORNEY shall furnish at his own cost all
     equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and
     all other trial court expenses except as provided otherwise in this contract.

     In consideration for ATTORNEY's appellate representation of COUNTY's indigent
     criminal defendants under this contract, COUNTY agrees to pay additional ATTORNEY's
     fees for legal services at the rate accepted in this area for such services and approved by
     DISTRICT JUDGE. If ATTORNEY is required to travel to the appellate court for
     representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses
     for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.

     COUNTY shall not be obligated for any other additional amount or expenses unless
     specifically designated in this agreement or required by law, detailed in the Request to Pay
     Counsel, and approved by DISTRICT JUDGE.

     If the renewal option is exercised, COUNTY's designated monthly percentage will be
     adjusted to reflect the number of COUNTY's cases under the contract in trial court


CONTRACT FOR INDIGENT DEFENSE - GAINES COUNTY                                                PAGE2
      compared to the number of trial court level cases under the contract in the entire 106th
      Judicial District during the previous contract.

5.    EXPERTS, INVESTIGATORS, AND INTERPRETERS
      ATTORNEY will obtain prior approval of expenses for investigation and for experts by
      filing a motion in the 106th Judicial District Court, stating the need for such assistance and
      the estimated expense. Investigative or expert expenses incurred with prior court approval
      shall be reimbursed as provided in the order granting approval. Investigative or expert
      expenses incurred without prior approval shall be reimbursed only if necessarily and
      reasonably incurred. ATTORNEY will arrange for interpreters when the need exists.
      Expenses for interpreters shall be paid by COUNTY after approval by DISTRICT JUDGE.

6.   CHANGE OF VENUE
     If there is a change of venue which moves a case from the boundaries of the 106th Judicial
     District, then AITO RNEY will be allowed his actual expenses in regard to lodging, meals,
     court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE
     in the original jurisdiction. Any such expenses should be discussed, if at all possible, with
     DISTRICT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)
     outside the 106th Judicial District will be paid at the prevailing state rate. All other fees
     designated herein will be the responsibility of and paid by the County of original
     jurisdiction.

7.   ASSIGNMENT
     ATTORNEY may employ an associate attorney(s) to assist in representing defendants
     under this contract with the prior consent and approval of DISTRICT JUDGE, but only
     at ATTORNEY's sole expense. ATTORNEY shall not assign its entire rights under this
     contract or delegate the entire performance of its duties under this contract.

8.   CONFLICTS
     ATTORNEY will notify the office of DISTRICT JUDGE as soon as AITO RNEY is aware
     of ethical conflicts between indigent defendants and will file a Motion to Withdraw and be
     responsible to set the case for a hearing regarding the ethical conflict for consideration if
     deemed necessary by the Court.

9.   REPORTS
     ATTORNEY shall compile a year-end report giving the number of indigent defendants
     served, the number of individual cases handled, the types of cases, the disposition of the
     cases handled, and any other reporting information required to be in compliance with the
     law. Such report shall identify the cases by county and shall include cases for the other
     contracting counties in the 106th Judicial District as well as COUNTY's cases. For approval
     and payment, ATTORNEY shall provide itemized interim progress reports to COUNTY
     and DISTRICT JUDGE as requested for indigent defense expenditure reports. Payment
     shall be made by COUNTY after approval by DISTRICT JUDGE.




CONTRACT FOR INDIGENT DEFENSE - GAINES COUNTY                                               PAGE3
10.   ATTORNEY'S PRIVATE PRACTICE
      It is agreed that ATTORNEY may maintain a private practice. It is further agreed and
      understood that ATTORNEY's private practice will not interfere in any material manner
      with the indigent criminal defense cases provided for in this contract.

11.   TERMINATION
      If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a
      majority vote of the Commissioners Court of COUNTY. Either party may terminate with
      90 days notice by Certified Mail to the other party. ATTORNEY shall complete all cases
      that are open as of the date of the termination notice unless relieved or replaced by
      DISTRICT JUDGE.

12.   AMENDMENTS
      Any alterations, additions or deletions in the terms and conditions of this contract shall be
      by written amendment approved by DISTRICT JUDGE and executed by ATTORNEY
      and the Commissioners Court of COUNTY.

13.   SEVERABILITY
      If any provision of this contract is construed to be illegal or invalid, such construction will
      not affect the legality or validity of any of its other provisions. The illegal or invalid
      provision will be deemed severable and stricken from the contract as if it had never been
      incorporated herein, but all other provisions will continue.

14.   SURVIVALOFTERMS
      Termination of this contract for any reason shall not release either party from any liabilities
      or obligations set forth in this contract that the parties have expressly agreed in writing shall
      survive any such termination or which by their nature would be intended to be applicable
      following such termination.

15.   INDEPENDENT CONTRACTOR
      It is agreed that ATTORNEY is an independent contractor and that this contract does not
      create an employment relationship between COUNTY and ATTORNEY. ATTORNEY,
      not COUNTY, will be responsible for appropriate payment of social security taxes and
      federal income taxes applicable to the consideration received by ATTORNEY under this
      contract.

      COUNTY shall not be liable or responsible and shall be saved and held harmless by
      ATTORNEY from and against any and all suits, actions, claims or liability of any character
      arising out of the performance of ATTORNEY under this contract, including claims and
      damages arising from acts of negligence or acts of malpractice of ATTORNEY.

16.   NO WAIYER OF SOVEREIGN IMMUNITY
      THE PARTIES EXPRESSLY AGREE THAT NO PROVISION OF THIS CONTRACT
      ISIN ANYWAYINTENDEDTOCONSTITUTEAWAIVERBYCOUNTYOR THE



CONTRACT FOR INDIGENT DEFENSE - GAINES COUNTY                                                  PAGE4
. ..
 '




              STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY
              THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF
              LAW.

       17.    GOVERNING LAW AND JURISDICTION
              This contract shall be construed in accordance with and governed by the laws of the State
              of Texas, except for its provisions regarding conflicts of laws. The venue of any suit
              brought for any breach of this contract is fixed in any court of competent jurisdiction in
              Gaines County, Texas. All payments under the contract shall be due and payable at
              ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement
              between the parties. No prior agreement of understanding, oral or otherwise, ofthe parties
              or their agents will be valid or enforceable unless embodied in this contract. The County
              Judge of COUNTY has signed this agreement pursuant to the authority placed in him by
              the Commissioners Court. Any signatory executing this contract on behalf of either
              ATTORNEY or COUNTY warrants and guarantees that he has authority to execute this
              contract on behalf of ATTORNEY or COUNTY and to validly and legally bind
              ATTORNEY and COUNTY to the provisions ofthis contract.

       EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.




       Vicki Phillips, County Clerk, Gaine
                                                                   Date:   J:ai - Cf' /3
                                             ATTORNEY:

                                             THE LAW OFFICES OF ARTHUR AGUILAR, JR.


                                             By: ___   a__,,____,..vl...........___--~----~~4/.--;;t-"--
                                             Date: _ _1 _'-_-_____,.,.._f_-------'f___
                                                                                     / _ _ _ _ __


                                             ~~J-11--11----
                                             Carter T. Schildknecht, District Judge

                                             Date:~                     If-;   Zo 13

       CONTRACT FOR INDIGENT DEFENSE - GAINES COUNTY                                            PAGES
                                      106TH JUDICIAL DISTRICT

                                     CURRENT CoNTRACT FOR 2013
                             PRO RATA SHARE DETERMINED BY INDIGENT DEFENSE
                           PROVIDED FOR EACH COUNTY UNDER THE 2012 CoNTRACT


                                                                  CoST FOR 2013 CoNTRACT

                District                                                        $66,000.00
                Dawson             33.33%                                           21,997.80
                Gaines             44.78%                                           29,554.80
                Garza              15.42%                                           10,177.20
                Lynn               6.47%                                             4,270.20


                              ESTIMATED SAVIN GS UNDER 2013 CoNTRACT
                       (Annualized, taking into consideration multiple cases for
                some defendants, jury trials, contested revocation hearings, and mileage.)

                CoST UNDER CoNTRACT           EsTIMATED CoST WITHOUT CoNTRACT           ANNUAL SAVINGS

District                     $66,000.00                               $114,200.00           $48,200.00
Dawson                        21,997.80                                 40,000.00               18,002.20
Gaines                        29,554.80                                 51,000.00               21,445.20
Garza                         10,177.20                                 16,000.00                5,822.80
Lynn                           4,270.20                                  7,200.00                2,929.80


                                DEFENDANTS SERVED UNDER THE CURRENT
                                 2013 CoNTRACT FOR .INDIGENT DEFENSE
                                                (Annualized)

              CoUNTY                      NUMBER OF CASES DISPOSED                  %OFTOTAL
                Dawson                              104                                 36.49
                Gaines                               97                                 34.03
                Garza                                53                                 18.60
                Lynn                                _R                                  10.88
                                                    285


                    PRO RATA SHARE BY CoUNTY FOR PROPOSED Co~'TRACT FOR
                         JANUARY 1, 2014 THROUGH SEPTEMBER 30, 2014

                                           CoST FOR 9 MO. CoNTRACT                      MONTHLY

     District                                         $49,500.00                        $5,500.00
       Dawson                                             18,062.55                      2,006.95
     Gaines                                               16,844.85                      1,871.65
     Garza                                                 9,207.00                      1,023.00
     Lynn                                                  5,385.60                        598.40
   .•




                                CoNTRACT FOR INDIGENT DEFENSE
                                            IN
                                     1
                        THE 1Q6n JUDICIAL DISTRICT COURT OF TEXAS
                        DAWSON, GAINES, GARZA AND LYNN CoUNTIES

        1.   INTRODUCTION
             The cow1ty of Garza ("COUNTY") and The Law Offices of Arthur Aguilar, Jr.
             ("ATTORNEY") arc the parties to this agreement. The District Judge of the 106'h Judicial
             District ("DISTRICT' JUDGE") is the appointing authority approving ATTORNEY to
             represent indigent criminal defendants in COUNTY. This agreement establishes conditions
             W1dcr which ATrORNEY will provide legal representation for indigent O"iininal
             defendants in COUNTY.

        2.   SCOPE OF WORK
             ATTORNEY will provide legal representation for indigent criminal defendants in
             COUNTY for felony cases only. Under this contract, a felony will be considered to be any
             criminal offense that carries a possible punishment of confinement in excess of one year or
             that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First
             Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will
             represent only those defendants designated by DISTRICT JUDGE, and no file shall be
             opened or appearance made W1der this contract except by order of DISTRICT JUDGE.
             ATI'ORNEY shall represent such defendantl in the trial court and on direct appeal in any
             of the appellate courts to which such case is appealed. Post conviction writ1 are
             extraordinary and are NOT covered in this contract. Capital Murder Trials where the State
             elects to pursue the Death Penalty are NOT covered in this contract. This contract does
             not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an
             indigent defendant has a misdemeanor charge as well as a felony d1arge, ATTORNEY will
             handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor
             charge is taken into account in determining sentence for the felony offense as provided in
             Section 12.45 of the Texas Penal Code. Othetwise, ATfORNEY will consider the
             indigent defendant to be W1der this contract for only the felony case. ATTORNEY shall
             meet qualifications and shall devote time, attention and energies to the performance of
             duties under this contract pursuant to the provisions of the 106'h Judicial District's Local
             Indigent Defense Plan, including but not limited to the qualifications set out in the
             ApplicationjAflidavit for the 106"' Judicial District Court Attorney Appointment List.
             DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure
             that the quality and effectiveness of ATTORNEY's representation of defendants is not
             compromised and that each defendant is being provided effective representation. If
             DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is
             falling below that which is expected by the Court, DISTlUCT JUDGE will make
             adjustments to ATTORNEY's caseload. ATTORNEY's caseload under this contract shall
             not exceed 400 actual cases over the entire four counties of the 106'h Judicial District.




                                                                                                             I
SOO/!OO[l]
      3.   CONTRACT PERIOD
           This agreement shall commence on January 1, 2014, and shall terminate September 30,
           2014, unless terminated earlier by either party. The parties shall have an option to renew
           the contract for additional years, and prior to July 1, 2014, the parties will revisit the
           contract to consider any desired modifications to the terms and conditions of this contract.

     4.    CONSIDERATION
           The parties agree that if this contract covered the legal representation for indigent criminal
           defendants in all four counties of the 106"' Judicial District, the total consideration for legal
           representation at the trial court level would be $49,500.00 for the nine month contract
           period.

           The consideration for legal representation at the trial court level under this contract
           between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,
           payable in monthly installments, based on indigent defense provided under the 2013
           Contract for Indigent Defense in each of the four counties of the 106'h Judicial District.
           COUNTY agrees to pay ATTORNEY for services at the trial court level a monthly amount
           for COUNTY's pro rata share as follows:

                   Dawson County                   $18,062.55 for contract         $ 2,006.95 monthly
                   Gaines O:mnty                   $ 16,844.85 for contract        $ 1,871.65 monthly
                   Garza County                    $ 9,207.00 for contract         $ 1,023.00 monthly
                   Lynn County                     $ 5,385.60 for contract         $ 598.40 monthly

           The above amount is the total consideration to be paid by COUNTY for legal
           representation of indigent criminal defendants at the trial court level for all cases opened
           during the term of this contract, and ATTORNEY shall furnish at his own cost all
           equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and
           all other trial court expenses except as provided otherwise in this contract.

           ln consideration for ATTORNEY's appellate representation of COUNTY's indigent
           criminal defendants under this contract, COUNTY agrees to pay additional AITORNEY's
           fees for legal services at the rate accepted in this area for such services and approved by
           DISTRICT JUDGE. If A1TORNEY is required to travel to the appellate court for
           representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses
           for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.

           COUNTY shall not be obligated for any other additional amount or expenses unless
           specifically designated in this agreement or required by law, detailed in the Request to Pay
           Counsel, and approved by DISTRICT JUDGE.
                                                                                                                           I
                                                                                                                           I
           If the renewal option is exercised, COUNTY's designated monthly percentage will be
           adjusted to reflect the number of COUNTY's cases under the contract in trial court


     CONTRACT FOR INDIGENT DEFENSE - GARZA COUNTY                                                   PAGE2




SOO/ZOO~                                       a£pn,r 1'0"FX4-S"FQ L!=l901 018L2l8908 X'dd    80 :til !Cid ElOZ:/OZ:/Z:l
               compared to the number of trial court level cases under the contract in the entire 106"'
               Judicial District during tl1e previous contract.

         5.    EXPERTS, INVESTIGATORS, AND INTERPRETERS
               ATTORNEY will obtain prior approval of expenses for investigation and for experts by
               filing a motion in the 106"' Judicial District Court, stating the need for such assistance and
               the estimated expense. Investigative or expert expenses incurred with prior court approval
               shall be reimbursed as provided in the order granting approval. Investigative or expert
               expenses incurred without prior approval shall be reimbursed only if necessarily and
               reasonably incurred. ATTORNEY will arrange for interpreters when the need exists.
               Expenses for interpreters shall be paid by COUNTY after approval by DISTlUCT JUDGE.

         6.    CHANGE OF VENUE
               If there is a change of venue which moves a case from the boundaries of the 106'h Judicial
               District, then ATTORNEY will be allowed bis actual expenses in regard to lodging, meals,
               court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE
               in the original jurisdiction. Any such expenses should be discussed, if at all possible, with
               DISTlUCT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)
               outside the 106"' Judicial District will be paid at the prevailing state rate. All otl1er tees
               designated herein will be the responsibility of and paid by the County of original
               jurisdiction.

         7.    ASSIGNMENT
               ATTORNEY may employ an associate attorney(s) to assist in representing defendants
               under tllis contract with tl1e prior consent and approval ofDISTlUCT JUDGE, but only
               at ATfORNEY's sole expense. ATTORNEY shall not assign its entire rights under tllls
               contract or delegate the entire performance of its duties under this contract.

         8.    CONFLICTS
               A'ITORNEYwill notifythe office ofDISTRICTJUDGE as soon as ATTORNEY is aware
               of etllical conflicts between indigent defendants and will file a Motion to Withdraw and be
               responsible to set the case for a hearing regarding the ethical conflict for consideration if
               deemed necessary by the Court.

         9.    REPORTS
               ATTORNEY shall compile a year·end report giving the number of indigent defendants
               served, tl1e number of individual cases handled, tl1e types of cases, the disposition of the
               cases handled, and any other reporting information required to be in compliance witl1 the
               law. Such report shall identify tl1e cases by county and shall include cases for the other
               contracting counties in tl1e 106"' Judicial District as well as COUNTY's cases. For approval
               and payment, ATTORNEY shall provide itemized interim progress reports to COUNTY
               and DISTRICT JUDGE as requested for indigent defense expenclitnre reports. Payment
               shall be made by COUNTY after approval by DISTRICT JUDGE.




        CONTRACT FOR INDIGENT DEFENSE • GARZA COUNTY                                                       PAGE3


SiOO/EOOli'J                                     a£pn.r ~,'.)1".:r'.lS}"O q::t90T 0T8LZ:l8908 X'ld   80 :~T I<:id ETOZ:/OZ:/Z:T
       10.    ATIORNEY'S PRNATE PRACTICE
              It is agreed that A1TORNEY may maintain a private practice. It is further agreed and
              understood that ATfORNEY's private practice will not interfere in any material manner
              with the indigent criminal defense cases provided for in this contract.

       I I.   TERMINATION
              If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a
              majority vote of the Commissioners Court of COUNTY. Either party may terminate with
              90 days notice by Certified Mail to the other party. ATIORNEY shall complete all cases
              that are open as of the date of the termination notice unless relieved or replaced by
              DISTRICT JUDGE.

       12.    AMENDMENTS
              Any alterations, additions or deletions in the terms and conditions of this contract shall be
              by written amendment approved by DISTRICT JUDGE and executed by ATTORNEY
              and the Commissioners Court of COUNTY.

       13.    SEVERABILITY
              If any provision of this contract is construed to be illegal or invalid, such construction will
              not affect the legality or validity of any of its other provisions. The illegal or invalid
              provision will be deemed severable and stricken from the contract as if it had never been
              incorporated herein, but all other provisions will continue.

       14.    SURVNALOFTERMS
              Termination of this contract for any reason shall not release either party from any liabilities
              or obligations set forth in this contract that the parties have expressly agreed in writing shall
              survive any such termination or which by their nature would be intended to be applicable
              following such termination.

       15.    INDEPENDENT CONTRACTOR
              It is agreed that A1TORNEY is an independent contractor and that this contract does not
              create an employment relationship between COUNTY and ATIORNEY. ATIORNEY,
              not COUNfY, will be responsible for appropriate payment of social security taxes and
              federal income taxes applicable to the consideration received by ATTORNEY under this
              contract.

              COUNTY shall not be liable or responsible and shall be saved and held harmless by
              KITORNEY from and against any and all suits, actions, claims or liability of any character
              arising out of the performance of A'ITORNEY under this contract, including claims and
              damages arising from acts of negligence or aet5 of malpractice of ATTORNEY.

       16.    NO WAIVER OF SOVEREIGN IMMUNITY
              THEPARTIESEXPRESSLYAGREETHATNOPROVISIONOFTHISCONTRACT
              ISINANYWAYINTENDEDTOCONSTlTUTEAWAIVERBYCOUNTYORTHE



       CONTRACT FOR INDIGENT DEFENSE - GARZA COUNTY                                                    PAGE4


;oo;~oorlJ
               STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY
               THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF
               LAW.

        17.   ·GOVERNING LAW AND JURISDICTION
               This contract shall be construed in accordance with and governed by the laws of the State
               of Texas, except for its provisions regarding conflicts of laws. The venue of any suit
               brought for any breach of this contract is fixed in any court of competent jurisdiction in
               Garza Cotmty, Texas. All payments under the contract shall be due and payable at
               ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement
               between the parties. No prior agreement of understanding, oral or otherwise, of the parties
               or their agent~ will be valid or enforceable unless embodied in this contract. The County
               Judge of COUNTY has signed this agreement pursuant to the authority placed in him by
               the Commissioners Court. Any signatory executing this contract on behalf of either
               ATTORNEY or COUNTY warrants and guarantees that he has authority to execute this
               contract on behalf of ATTORNEY or COUNTY and to validly and legally bind
               ATTORNEY and COUNTY to the provisions of this contract.

        EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.

                                                     COUNTY:


                                                          ~~
                                                     Lee Norman, County Judge
        ATTEST:


                                                                       Date:   __,/'--;2_~/~9~/R__6~(~_3-
         nn Plummer, Cotmty Clerk, Garza Cotmty

                                             ATTORNEY:




                                            Carter T. Schildknecht, District Judge

                                            Date:   D~                             4- ZoL.3
                                                                                      I



       CONTRACT FOR INDIGENT DEFENSE " GARZA COUNIT                                                       PAGES


SOO/SOO!i'I                                     a£pnr ~::i"'F;i:~s-ra L!~901   018LZL8908 X'<f.iI   60 :tit ICL!l t:lOZ:/OZ/ZT
                        CONTRACT FOR INDIGENT DEFENSE
                                         IN
                THE    106TII JUDICIAL DISTRICT CoURT OF TEXAS
                DAWSON, GAINES, GARZA AND LYNN COUNTIES

1.   INTRODUCTION
     The county of Lynn ("COUNTY") and The Law Offices of Arthur Aguilar, Jr.
     ("ATTORNEY") are the parties to this agreement. The District Judge of the 106th Judicial
     District ("DISTRICT JUDGE") is the appointing authority approving ATTORNEY to
     represent indigent criminal defendants in COUNTY. This agreement establishes conditions
     under which ATTORNEY will provide legal representation for indigent criminal
     defendants in COUNTY.

2.   SCOPE OF WORK
     ATTORNEY will provide legal representation for indigent criminal defendants in
     COUNTY for felony cases only. Under this contract, a felony will be considered to be any
     criminal offense that carries a possible punishment of confinement in excess of one year or
     that is classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First
     Degree Felony by the Penal Code of Texas. Under this contract, ATTORNEY will
     represent only those defendants designated by DISTRICT JUDGE, and no file shall be
     opened or appearance made under this contract except by order of DISTRICT JUDGE.
     ATTORNEY shall represent such defendants in the trial court and on direct appeal in any
     of the appellate courts to which such case is appealed. Post conviction writs are
     extraordinary and are NOT covered in this contract. Capital Murder Trials where the State
     elects to pursue the Death Penalty are NOT covered in this contract. This contract does
     not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an
     indigent defendant has a misdemeanor charge as well as a felony charge, ATTORNEY will
     handle the misdemeanor charge at no extra cost to COUNTY as long as the misdemeanor
     charge is taken into account in determining sentence for the felony offense as provided in
     Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will consider the
     indigent defendant to be under this contract for only the felony case. ATTORNEY shall
     meet qualifications and shall devote time, attention and energies to the performance of
     duties under this contract pursuant to the provisions of the 106th Judicial District's Local
     Indigent Defense Plan, including but not limited to the qualifications set out in the
     Application/Affidavit for the 106th Judicial District Court Attorney Appointment List.
     DISTRICT JUDGE will monitor ATTORNEY's caseload under this contract to ensure
     that the quality and effectiveness of ATTORNEY's representation of defendants is not
     compromised and that each defendant is being provided effective representation. If
     DISTRICT JUDGE finds that ATTORNEY's representation is being compromised or is
     falling below that which is expected by the Court, DISTRICT JUDGE will make
     adjustments to ATTORNEY's caseload. ATTORNEY's caseload under this contract shall
     not exceed 400 actual cases over the entire four counties of the 106th Judicial District.
3.   CONTRACT PERIOD
     This agreement shall commence on January 1, 2014, and shall terminate September 30,
     2014, unless terminated earlier by either party. The parties shall have an option to renew
     the contract for additional years, and prior to July 1, 2014, the parties will revisit the
     contract to consider any desired modifications to the terms and conditions of this contract.

4.   CONSIDERATION
     The parties agree that if this contract covered the legal representation for indigent criminal
     defendants in all four counties of the 106th Judicial District, the total consideration for legal
     representation at the trial court level would be $49,500.00 for the nine month contract
     period.

     The consideration for legal representation at the trial court level under this contract
     between COUNTY and ATTORNEY is COUNTY's pro rata portion of $49,500.00,
     payable in monthly installments, based on indigent defense provided under the 2013
     Contract for Indigent Defense in each of the four counties of the 106th Judicial District.
     COUNTY agrees to pay ATTORNEY for services at the trial court level a monthly amount
     for COUNTY's pro rata share as follows:

             Dawson County                   $18,062.55 for contract         $ 2,006.95 monthly
             Gaines County                   $ 16,844.85 for contract        $ 1,871.65 monthly
             Garza County                    $ 9,207.00 for contract         $ 1,023.00 monthly
             Lynn County                     $ 5,385 .60 for contract        $    598.40 monthly

     The above amount is the total consideration to be paid by COUNTY for legal
     representation of indigent criminal defendants at the trial court level for all cases opened
     during the term of this contract, and ATTORNEY shall furnish at his own cost all
     equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and
     all other trial court expenses except as provided otherwise in this contract.

     In consideration for ATTORNEY's appellate representation of COUNTY's indigent
     criminal defendants under this contract, COUNTY agrees to payadditionalATTORNEY's
     fees for legal services at the rate accepted in this area for such services and approved by
     DISTRICT JUDGE. If ATTORNEY is required to travel to the appellate court for
     representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses
     for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.

     COUNTY shall not be obligated for any other additional amount or expenses unless
     specifically designated in this agreement or required by law, detailed in the Request to Pay
     Counsel, and approved by DISTRICT JUDGE.

     If the renewal option is exercised, COUNTY's designated monthly percentage will be
     adjusted to reflect the number of COUNTY's cases under the contract in trial court


CONTRACT FOR INDIGENT DEFENSE - LYNN COUNTY                                                   PAGE2
     compared to the number of trial court level cases under the contract in the entire 106"'
     Judicial District during the previous contract.

5.   EXPERTS, INVESTIGATORS, AND INTERPRETERS
     ATTORNEY will obtain prior approval of expenses for investigation and for experts by
     filing a motion in the 106"' Judicial District Court, stating the need for such assistance and
     the estimated expense. Investigative or expert expenses incurred with prior court approval
     shall be reimbursed as provided in the order granting approval. Investigative or expert
     expenses incurred without prior approval shall be reimbursed only if necessarily and
     reasonably incurred. ATTORNEY will arrange for interpreters when the need exists.
     Expenses for interpreters shall be paid by COUNTY after approval by DISTRICT JUDGE.

6.   CHANGE OF VENUE
     If there is a change of venue which moves a case from the boundaries of the 106"' Judicial
     District, then ATTORNEY will be allowed his actual expenses in regard to lodging, meals,
     court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE
     in the original jurisdiction. Any such expenses should be discussed, if at all possible, with
     DISTRICT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)
     outside the 106"' Judicial District will be paid at the prevailing state rate. All other fees
     designated herein will be the responsibility of and paid by the County of original
     jurisdiction.

7.   ASSIGNMENT
     ATTORNEY may employ an associate atrorney(s) to assist in representing defendants
     under this contract with the prior consent and approval of DISTRICT JUDGE, but only
     at ATTORNEY's sole expense. ATTORNEY shall not assign its entire rights under this
     contract or delegate the entire performance of its duties under this contract.

8.   CONFLICTS
     ATTORNEY will notify the office ofDISTR!CT JUDGE as soon as ATTORNEY is aware
     of ethical conflicts between indigent defendants and will file a Motion to Withdraw and be
     responsible to set the case for a hearing regarding the ethical conflict for consideration if
     deemed necessary by the Court.

9.   REPORTS
     ATTORNEY shall compile a year-end report giving the number of indigent defendants
     served, the number of individual cases handled, the types of cases, the disposition of the
     cases handled, and any other reporting information required to be in compliance with the
     law. Such report shall identify the cases by county and shall include cases for the other
     contracting counties in the 106"' Judicial District as well as COUNTY's cases. For approval
     and payment, ATTORNEY shall provide itemized interim progress reports to COUNTY
     and DISTRICT JUDGE as requested for indigent defense expenditure reports. Payment
     shall be made by COUNTY after approval by DISTRICT JUDGE.




CONTRACT FOR INDIGENT DEFENSE - LYNN COUNTY                                                PAGE3
10.   AITORNEY'S PRIVATE PRACTICE
      It is agreed that ATTORNEY may maintain a private practice. It is further agreed and
      understood that ATTORNEY's private practice will not interfere in any material manner
      with the indigent criminal defense cases provided for in this contract.

11.   TERMINATION
      If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a
      majority vote of the Commissioners Court of COUNTY. Either party may terminate with
      90 days notice by Certified Mail to the other party. ATTORNEY shall complete all cases
      that are open as of the date of the termination notice unless relieved or replaced by
      DISTRICT JUDGE.

12.   AMENDMENTS
      Any alterations, additions or deletions in the terms and conditions of this contract shall be
      by written amendment approved by DISTRICT JUDGE and executed by ATTORNEY
      and the Commissioners Court of COUNTY.

13.   SEVERABILITY
      If any provision of this contract is construed to be illegal or invalid, such construction will
      not affect the legality or validity of any of its other provisions. The illegal or invalid
      provision will be deemed severable and stricken from the contract as if it had never been
      incorporated herein, but all other provisions will continue.

14.   SURVIVAL OF TERMS
      Termination of this contract for any reason shall not release either party from any liabilities
      or obligations set forth in this contract thatthe parties have expressly agreed in writing shall
      survive any such termination or which by their nature would be intended to be applicable
      following such termination.

15.   INDEPENDENT CONTRACTOR
      It is agreed that ATTORNEY is an independent contractor and that this contract does not
      create an employment relationship between COUNTY and ATTORNEY. AITORNEY,
      not COUNTY, will be responsible for appropriate payment of social security taxes and
      federal income taxes applicable to the consideration received by AITORNEY under this
      contract.

      COUNTY shall not be liable or responsible and shall be saved and held harmless by
      AITORNEY from and against any and all suits, actions, claims or liability of any character
      arising out of the performance of AITORNEY under this contract, including claims and
      damages arising from acts of negligence or acts of malpractice of ATTORNEY.

16.   NO WAIVER OF SOVEREIGN IMMUNITY
      THEPARTIESEXPRESSLY AGREE THAT NO PROVISION OF THIS CONTRACT
      ISINANYWAYINTENDEDTOCONSTITUTEAWAIVERBYCOUNTYORTHE



CONTRACT FOR INDIGENT DEFENSE - LYNN COUNTY                                                   PAGE4
                  STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY
                  THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF
                  LAW.

    17.           GOVERNING LAW AND JURISDICTION
                  This contract shall be construed in accordance with and governed by the laws of the State
                  of Texas, except for its provisions regarding conflicts of laws. The venue of any suit
                  brought for any breach of this contract is fixed in any court of competent jurisdiction in
                  Lynn County, Texas. All payments under the contract shall be due and payable at
                  ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement
                  between the parties. No prior agreement of understanding, oral or otherwise, of the parties
                  or their agents will be valid or enforceable unless embodied in this contract. The County
                  Judge of COUNTY has signed this agreement pursuant to the authority placed in him by
                  the Commissioners Court. Any signatory executing this contract on behalf of either
                  ATTORNEY or COUNTY warrants and guarantees that he has authority to execute this
                  contract on behalf of ATTORNEY or COUNTY and to validly and legally bind
                  ATTORNEY and COUNTY to the provisions of this contract.

    EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.

                                                        COUNTY:




    ATTEST:
                                                            /#-
                                                       M~ Braddock,      County Judge




                                                                       Date:   9~. 'l~          2013
    Susan Tipton, County Clerk, Lynn County

                                                ATTORNEY:




 ..... ·······   f'iL~D   -· ---··.
AT)   0'Q6A          M O'CLOCI<




    CONTRACT FOR INDIGENT DEFENSE - LYNN COUNTY                                                      PAGES
                                        
                                        
                                  Exhibit  F  
Letter  from  Judge  Schildknecht  to  Joel  Lieurance,  Policy  Monitor  at  TIDC    
                               (July  19,  2013)  
                                            
JANA FURLOW, COURT ADMINISTRATOR                                                                       PHONE: 806/ 872 -3 740
                                                                                                         FAX: 806/ 872-7810
ROSA OLVERA, COURT COORDINATOR
                                                                                                             Physical Address:
TERESA POPNOE, COURT SECRETARY                                                                       400 SOUTH 1", SUITE 301
                                                                                                              Mailing Address:
J'LYN SAUSEDA, COURT REPORTER
                                                                                                             P.O . Box 1 268
JON KEY, COURT BAILIFF                                                                                 LAMESA, TEXAS 7 9 3 31
                                           1nst11 Wumcial c!fliztrici                              email: djudge@ co.dawson.tx.us

                                                 (ARTER T. SCHILDKNECHT
                                                      DISTRICT JUDGE

                                                                                       ~~rEaW!Slm
                                                      July 19, 2013
                                                                                       lp~UL 2 ~ 2013
          Joel Liemance, Policy Monitor
          Texas Indigent Defense Commission
          209 West 14rh Su-eet, Room 202
          Austin, TX 78701

          Re:       Responses to the June 11, 2013, Review ofGaines County's Indigent Defense System as
                    applied to the 1 OtJh District Court, Gaines County, Texas

          Dear Mr. Lieurance:

                 In response to the report of the monitoring review of Gaines County's indigent processes,
          I am addressing each of the recommendations that applies to the Disu·ict Court.

                    "Core Requirement 4. Appoint counsel promptly.

                  Recommendation 3: Gaines County and the 106th District Court must implement
          procedures to ensure that determinations of indigence in felony cases fall within the time frames
          set by the FDA."

                 The Indigent Defense Plan for the 106th District Court includes specific provisions for
          prompt magistration and assistance in completing the necessary forms for requesting appointment
          of coLmsel. Included as a part of these provisions is the statement as follows: "The magistrate shall,
          within 24 hours, transmit the felony defendant's 'Request for Appointment of Counsel and
          Determination oflndigence' to the District Judge." Transmit means to send or transfer from one
          person or place to another. Except on rare occasion, the requesting defendant has an attorney
          appointed on the same day the request is received in the District Judge's office, and witl1 the
          exception of weekends or holidays, that is the next day after the request is transmitted.

                   I do not understand exactly how tl1e monitor arrived at the figures presented in the
          Monitoring Review Report. No one discussed with me anything about the determination of
          indigence or the timely appointment of counsel. In our office files we keep the requests for
          appointed counsel. No one reviewed these. In Gaines County we have many defendants who
          initially indicate that they or their family are intending to retain an attorney and do not want to ask
          for an appointed attorney. Some of these defendants later request an appointed attorney. One of
          my questions is how the date of the request for counsel was determined.



DAWSON                                GAINES                                  G ARZA                                        LYNN
Page Two
Joel Lieurance, Policy Monitor
Texas Indigent Defense Commission
July 19, 2013


         I will speak with the appropriate officials in Gaines County to be sure they understand and
will follow the provisions in the Indigent Defense Plan for assistance in com plcting the necessary
forms for requesting appointed counsel and for transmitting them to the District Court.

       "Core Requirement 5. Institute a fair, neutral and non-discriminatory attorney selection
process.

       Recommendation 8: The parties to the contract for felony defense services must follow
the terms of the contract according to the contract's caseload limitations. Excessive caseloads
could compromise the quality of representation provided for indigent clients."

       The 106'" District Court is very lenient toward indigent defendants and appoints counsel for
defendants with annual average income up to and including 200% of the Federal poverty guidelines,
which substantially exceeds the 125% requirement set out by the State.

        Except on rare occasion, the Court appoints counsel the same day the Court receives an
application requesting appointed counsel. Because of the prompt appointment of counsel following
request, many times a defendant retains counsel within a few days after having counsel appointed.
Also, in nwnerous cases, appointed cow1scl immediately withdraws because of a legal conflict
discovered during the initial intake interview. These cases, although the appointed attorney's
representation is brief, are counted in the appointed attorney's caseload.

         The 106'" District Court also may appoint counsel in the interest of justice when a defendant
wants to proceed with his case more quickly than he can retain an attorney or for some other
justifiable reason. There arc times when this happens during arraignment in open court. In these
cases, at the defendant's request, the appointed attorney's representation may be very brief but still
count in his caseload.

        As stated in your Monitoring Review Report dated June 11, 2013, "The NAC standards are
a good starting point in assessing caseloads but should not be accepted as universal standards." The
provision of criminal defense services docs not lend itself to pure numerical analysis. Arbitrary
standards set outside the Court's discretion infringe on the independence of the judiciary. The judge
sitting in a case is in the best position to evaluate and determine if an attorney's quality of
representation is compromised. This can occur with a retained attorney as well as with an appointed
attorney. I have removed attorneys from the appointment list when I felt that the attorney did not
provide the quality of representation that the court expects. I have never felt that the contracting
attorney's representation fell below that which the court expects. In fact, because of the priority that
the contracting attorney places on his work as appointed cOLmsc! in this court, I have found that his
representation of clients is more timely, efficient, and many times exceeds the quality and
effectiveness of other attorneys, appointed or retained.
Page Three
Joel Lieurance, Policy Monitor
Texas Indigent Defense Commission
July 19, 2013


        Late in 2011, this court felt harassed and pressured by Fiscal Monitor Carol Conner to add
additional language about caseload limitations to our conu·acts. In response to that pressure, I added
the language, "the ABA's recommended caseload limitations," to our contracts. That specific
language will be removed from future contracts and more appropriate language will be added that
requires the judge to monitor caseloads to determine if the quality and effectiveness of representation
is compromised in any manner.

       "Recommendation 9: The County must ensure that procedures are in place to meet the
requirements of 1 TAC § 174.25 and Article 26.05 (c) so that itemized fee vouchers are submitted
and approved by the appointment authority prior to payment by the financial officer."

       To comply, the District Judge will ensure that fee vouchers for the District Court are
submitted to the judge for approval prior to payment by the financial officer.

       A copy of a letter dated February 10, 2012, that I wrote to Wesley Shackelford, Deputy
Director/Special Counsel, Texas Indigent Defense Commission, addressing this same issue is
enclosed.

                                              Sincerely,


                                            ~J Carter T. Schildknecht
                                               106rh Judicial Disu·ict Judge

Enclosure: Letter dated February 10, 2012, to Wesley Shackelford

c:     The Honorable Lance Celander, Gaines County Judge
       Mr. Rick Dollahan, Gaines Colmty Auditor
       The Honorable Tammy Clark, Justice of the Peace, Precinct 1
       The Honorable B. W. Baucmn, Justice of the Peace, Precinct 2
       Mr. Arthur Aguilar, Jr., Conu·act Defender
       Mr. James D . Bethke, Executive Director, Texas Indigent Defense Commission
JANA FURLOW, COURT ADMINISTRATOR                                                                 PHONE: 806/ 872 - 37 40
                                                                                                   FAX: 806/ 87 2-7810
ROSA OLVERA, COURT COORDINATOR
                                                                                                       Physicill Address:
MILLIE ( O HORN, COURT SECRETARY                                                               400 SOUTH 1 ", SUITE 301
                                                                                                        Maifing Address:
J'LYN SAUSEDA, COURT REPORTER
                                                                                                       P.O. Box 12 68
                                                                                                 LAMESA, TEXAS 7 9 3 3 1
                                         10.6t11 Jjubicial ~iztrici                          email: djudge@co.dawson.lx.us

                                              (ARTER T. SCHILDKNECHT
                                                   DISTRICT JUDGE


                                                February 10, 2012


          Mr. Wesley Shackelford
          Deputy Director/Special Counsel
          via fax: 512-463-5724

          Re:      Contract Defender Program / Dawson, Gaines, Garza, Lynn Counties

         Dear Mr. Shackelford:

                 I am writing in response to your letter to Arthur Aguilar, Jr. dated January 27, 2012,
         which was copied to me. I hope that this letter will help you to understand the program and
         the contracts between Mr. Agujlar and the four counties in the 106th Judicial District.
         Previously I have provided to Carol Conner all materials requested by her and have discussed
         this program and contract at length with you by telephone and also with Jim Bethke in person
         in my office during a visit on January 12, 2012.

                 It appears to me that because our program does not fit the mold that other cow1ties are
         using, there is either an inability or w1willingness to understand how our program satisfies the
         requirements of CCP 26.05 and TAC §§174.10 - 174.25.

                I have thoroughly reviewed CCP 26.05 and the TAC §174 provisions. When the
         contracts are issued for 2013, I am willing to amend the language by adding the provision you
         request covering submitting a fee voucher to me prior to payment. I will do that to comply
         with the requirements even though my position is that it is already satisfied by the contract
         language as it exists. A voucher is a document that serves to recognize a liability and authorize
         the disbw·sement of cash that shows on its face the fact, authority, and purpose of
         disbursement. A careful reading of item number 4 in our contract shows that payment is
         determined by services performed during the prior year as itemized in the year-end report
         required in item number 9 of om contract. By signing each contract as the appointing
         authority when it is presented to each commjssioners court, I am approving that payment
         according to the services that had been itemized to me as required in item nwnber 9.




DAWSON                              GAINES                               GARZA                                       LYNN
                                                                                             Page Two
                                                                                 Mr. Wesley Shackelford
                                                                                     February 10, 2012



                 Nowhere in CCP 26.05 or TAC §§174.10 - 174.25 can I find the requirement for a
         monthly voucher. The only time I find the word "monthly" is in Texas Government Code
         §71.0351 referred to in TAC §174.10(5), which provides for reports to be sent to the OCA
         "on a monthly, quarterly, or annual basis." However, §71.0351 was repealed effective
         September 1, 2011. Our county financial officers report to me that they currently receive all
         the information they need from Mr. Aguilar to complete their indigent defense expenditure
         reports.

                 Please understand that from the inception of the Texas Fair Defense Act, this court and
         the counties covered by it have taken very seriously our legal and ethical obligations to provide
         legal representation for indigent defendants and to pay cow1sel appropriately for those services.
         This is and should be tl1e guiding principle behind indigent defense policies and standards.

                                                     Sincerely,



                                                     Carter T. Schildknecht

         c:     Jim Bethke, Executive Director,
                      Texas Indigent Defense Commission - via f.1X 512-463-5724
                Arthur Aguilar, Jr. - via fax 806-687-3502




DAWSON                              GAINES                               GARZA                               LYNN
                           
                           
                     Exhibit  G  
Texas  Indigent  Defense  Commission,  Review  of  Gaines    
          County’s  Indigent  Defense  Systems    
                     (June  11,  2013)  
                               
Review of Gaines County’s Indigent
         Defense Systems

           June 11, 2013
                                     Texas Indigent Defense Commission
                                     209 W. 14th Street, Room 202 (Price Daniel Building)
                                     Austin, Texas 78701
                                     Direct: 512.463.8015 Fax: 512.463.5724
                                     Main line: 512.936.6994 Toll free in Texas: 866.499.0656
                                     On the web: http://www.courts.state.tx.us/tidc

OFFICERS:
Honorable Sharon Keller         Chair – Presiding Judge, Court of Criminal Appeals
                                                               nd
Honorable Olen Underwood        Vice-Chair – Presiding Judge, 2 Administrative Judicial Region of Texas

EX OFFICIO MEMBERS:
Honorable Sharon Keller         Austin, Presiding Judge, Court of Criminal Appeals
Honorable Wallace Jefferson     Austin, Chief Justice, Supreme Court
Honorable Roberto Alonzo        Dallas, State Representative
Honorable Abel Herrero          Robstown, State Representative
Honorable Sherry Radack         Houston, Chief Justice, First Court of Appeal
Honorable Royce West            Dallas, State Senator
Honorable John Whitmire         Houston, State Senator

MEMBERS APPOINTED BY GOVERNOR:
Honorable Jon Burrows     Temple, Bell County Judge
Mr. Don Hase              Attorney, Ball & Hase, Arlington
Mr. Anthony Odiorne       Burnet, Assistant Public Defender, Regional Public Defender                     for
                          Capital Cases
                                                      nd
Honorable Olen Underwood  Conroe, Presiding Judge, 2 Administrative Judicial Region of Texas
Honorable B. Glen Whitley Hurst, Tarrant County Judge

STAFF:
James D. Bethke                 Director
Edwin Colfax                    Project Manager
West Garrett                    Research Specialist
Dominic Gonzales                Grant Program Specialist
Marissa Kubinski                Administrative Assistant
Joel Lieurance                  Research Specialist, Policy Monitor
Wesley Shackelford              Deputy Director/Special Counsel
Terri Tuttle                    Executive Assistant/Information Specialist
Sharon Whitfield                Budget and Accounting Analyst
Bryan Wilson                    Grants Administrator

MISSION
The Texas Indigent Defense Commission provides financial and technical support to counties to develop and
maintain quality, cost-effective indigent defense systems that meet the needs of local communities and the
requirements of the Constitution and state law.




                                                                                                           2
Contents
Purpose of Review .................................................................................................................................... 4
Methodology ............................................................................................................................................. 4
Summary of Commendations / Recommendations .................................................................................. 5
Overview of Gaines County’s Indigent Defense System ......................................................................... 8
Program Assessment ............................................................................................................................... 10
  Core Requirement 1. Conduct prompt and accurate magistration proceedings. ............................... 10
  Core Requirement 2. Determine indigence according to standards directed by the indigent defense
  plan. ................................................................................................................................................... 12
  Core Requirement 3. Establish minimum attorney qualifications. .................................................... 14
  Core Requirement 4. Appoint counsel promptly. .............................................................................. 16
  Core Requirement 5. Institute a fair, neutral, and non-discriminatory attorney selection process.... 23
     Comparison of the Contract with Contract Defender Rules ........................................................... 24
     Comparison of the Public Defender’s Written Procedures with Article 26.044 ............................ 31
  Core Requirement 6. Promulgate standard attorney fee schedule and payment process. ................ 33
  Statutory Data Reporting .................................................................................................................... 33
  County Indigent Defense Plans .......................................................................................................... 34
Conclusion .............................................................................................................................................. 34
Appendix A – District Court Indigent Defense Plan .............................................................................. 35
Appendix B – County Court Indigent Defense Plan .............................................................................. 42
Appendix C – Juvenile Indigent Defense Plan ....................................................................................... 53
Appendix D – Defender Contract ........................................................................................................... 63
Appendix E – Regional Public Defender’s Written Procedures and Budget ………………………….69




                                                                                                                                                            3
Purpose of Review
        The Commission is required to monitor local jurisdictions’ compliance with the Fair Defense
Act (“FDA”). 1 The purpose of this review is to promote local compliance and accountability with the
requirements of the FDA through evidence-based practices and to provide technical assistance to
improve processes where needed. In addition, this review process is designed to assist the local
jurisdiction in developing procedures to monitor its own compliance with its indigent defense plan and
the FDA.

Core Requirements of the Fair Defense Act
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.
2. Determine indigence according to standards directed by the 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 a standard attorney fee schedule and payment process.

Methodology
        The policy monitoring site review for Gaines County (“the County”) was conducted by Joel
Lieurance and Wesley Shackelford in conjunction with a review of Dawson County between February
19 and February 22, 2013. Joel Lieurance returned on May 13, 2013 to review some additional case
files. Throughout this report all references to Commission staff use the term “monitor.” The monitor
met with the following persons: the district judge; the county judge; a justice-of-the-peace; the
auditor’s office; the regional public defender; and the felony contract defender. The monitor observed a
misdemeanor arraignment docket. The monitor examined the following records:
    • Local indigent defense plans;
    • Contract with the felony contract defender;
    • Regional public defender employee handbook;
    • Magistrate’s warning forms (obtained from the offices of the two justices-of-the-peace) to
        determine the time from arrest to magistration and to determine whether all Article 15.17
        requirements are part of standard procedures;
    • Case file records including but not limited to:
            o Affidavits of indigence and orders appointing counsel as well as letters indicating
                retention of an attorney or withdrawal of an attorney; and
            o Forms noting case dispositions, plea agreements, waivers of counsel, and orders of
                dismissal.




1
    Tex. Gov’t Code § 79.037(b).

                                                                                                      4
Summary of Commendations / Recommendations
        The Commission staff compared County procedures with the requirements of the Fair Defense
Act (FDA) and found that the County’s written procedures are laudable, but in many instances, the
plans do not describe actual practices. For instance, the local indigent defense plans require that
procedures for requesting counsel be explained to all unrepresented defendants, set a standard of
indigence that applies to all defendants whether they bond or not, and require the timely appointment
of counsel. However, procedures for requesting counsel are not explained to misdemeanor defendants,
and determinations of indigence are often untimely. In order to meet the requirements of both state law
and its local plans, the County must: promptly transmit requests for counsel to the appointing
authority; promptly rule on requests for counsel; ensure that waivers of counsel meet the requirements
of Article 1.051 of the Code of Criminal Procedure; and ensure that all terms of the contract for felony
representation are followed.
       The commendations and recommendations from the report are listed below. The County does
not need to respond to the report’s commendations but must respond to how it will address each
recommendation.
Core Requirement 1. Conduct prompt and accurate magistration proceedings.
Commendation:
   • Gaines County has procedures in place to ensure that arrestees receive timely Article 15.17
      hearings.
Recommendations:
   1: Gaines County must implement procedures to ensure assistance in completing the necessary
      forms for requesting counsel at the time of the Article 15.17 hearing.
   2: Gaines County must implement procedures to transmit all requests for counsel to the appointing
       authority within 24 hours of the request.
Core Requirement 2. Determine indigence according to standards directed by the indigent
defense plan. (For this core requirement, the monitor only examined whether the local indigent
defense plans meet statutory requirements, not whether the plans are followed.)
Commendations:
    • The district court’s felony indigence determination standards, as stated in its indigent defense
       plan, meet relevant statutory requirements.
    • The county court’s misdemeanor indigence determination standards, as stated in its indigent
       defense plan, meet relevant statutory requirements.
    • The county court’s juvenile indigence determination standards, as stated in its indigent defense
       plan, meet relevant statutory requirements.
Core Requirement 3. Establish minimum attorney qualifications.
Commendations:
   • The district court has procedures for managing the attorney appointment list for felony cases
      and for ensuring that all attorneys on the list met their annual CLE requirements as described in
      the indigent defense plan.
   • The county court has procedures for managing the attorney appointment list for misdemeanor
      cases and for ensuring that all attorneys on the list met their annual CLE requirements as
      described in the indigent defense plan.




                                                                                                      5
   •   The county court has procedures for managing the attorney appointment list for juvenile cases
       and for ensuring that all attorneys on the list met their annual CLE requirements as described in
       the indigent defense plan.
Core Requirement 4. Appoint counsel promptly. (The analysis for this core requirement may be
affected by the actual implementation of Core Requirement 2.)
Commendations:
    • Gaines County’s practice of ensuring that counsel is present at all juvenile detention hearings
        meets the requirements set in Section 51.10 of the Family Code.
    • Gaines County’s appointment practices in instances when a juvenile is served with a petition
        meet the requirements of Section 51.101 of the Family Code.
Recommendations:
   3: Gaines County and the 106th District Court must implement procedures to ensure that
      determinations of indigence in felony cases fall within the time frames set by the FDA.
   4: Gaines County must implement procedures to ensure timely determinations of indigence in
      misdemeanor cases. In particular, the court must rule upon all requests for counsel.
   5: Gaines County must implement procedures to ensure that the court rules upon requests for
      counsel prior to granting any waiver of counsel. The procedure must provide that the court may
      not direct or encourage the defendant to communicate with the attorney representing the state
      until the court advises of the right to counsel and explains the process for requesting counsel.
      Article 1.051(f-1)(1), Code of Criminal Procedure prohibits an attorney representing the state
      from initiating or encouraging a waiver of counsel from an unrepresented defendant.
   6: Pro se pleas must include written waivers of counsel as required by Article 1.051(f), Code of
       Criminal Procedure.
   7: The county court must follow the procedures set in its indigent defense plan and in Article
      1.051(f-2) and explain the procedures for requesting counsel to defendants appearing in court
      without counsel.

Core Requirement 5. Institute a fair, neutral, and non-discriminatory attorney selection process.
Commendations:
   • The contract solicitation process meets the Commission’s requirements as set in 1 TAC §§
      174.12 - 174.15.
   • The contract attorney met and exceeded the annual criminal CLE requirements set in the
      contract.
   • Based upon the monitor’s review of case files, the contract defender’s duration of
      representation meets the requirements set in the contract and which are established under
      Article 26.04(j)(2) of the Code of Criminal Procedure.
   • The contract defender appeared to follow the requirements of the contract by filing a motion to
      withdraw whenever a conflict of interest arose.
   • The contract for felony defense services meets all of the Commission’s requirements set in 1
      TAC §§ 174.10 - 174.25.
   • The public defender’s caseload falls within the maximum thresholds set in its office manual
      (and in line with national standards). Keeping caseloads below this cap allows for zealous and
      effective representation of indigent clients.
   • Both attorneys in the public defender’s office met and exceeded their annual criminal law CLE
      requirements.

                                                                                                      6
   •   The public defender’s operational manual and proposed budget contain all of the elements
       required by Article 26.044(c-1) of the Code of Criminal Procedure.
Recommendations:
   8: The parties to the contract for felony defense services must follow the terms of the contract
      according to the contract’s caseload limitations. Excessive caseloads could compromise the
      quality of representation provided for indigent clients.
   9: The County must ensure that procedures are in place to meet the requirements of 1 TAC §
      174.25 and Article 26.05(c) so that itemized fee vouchers are submitted and approved by the
      appointing authority prior to payment by the financial officer.
Core Requirement 6. Promulgate standard attorney fee schedule and payment process.
The items covered by this core requirement were addressed in Core Requirement 5.

Statutory Data Reporting
Commendation:
   • As mandated by Section 79.036 of the Texas Government Code, the Gaines County Auditor’s
       Office completed the annual indigent defense expenditure report.

County Indigent Defense Plans
Commendation:
   • As mandated by Section 79.036 of the Texas Government Code, Gaines County completed its
      indigent defense plans that describe the procedures for appointment of counsel in criminal and
      juvenile cases. All required elements were included in the plans.




                                                                                                  7
Overview of Gaines County’s Indigent Defense System
Figure 1: Fair Defense Act Timeline Model for Counties with Populations Under 250,000
           48 hours               24 hours           3 working days        1 working day


                                            Request for           Appointing
                                              counsel              authority
                                                                                        Appointed
                                            received by           determines
                                                                                         counsel
  Arrest               Magistration         appointing          indigence and
                                                                                         contacts
                                             authority         notifies counsel
                                                                                          clients




                                      Request for
            Bond set                   counsel
                                        taken




        Adults arrested in Gaines County are brought to the Gaines County Jail and receive Article
15.17 hearings every morning. Article 15.17 hearings are conducted by either a justice-of-the-peace or
by the county judge. When a person requests counsel at the Article 15.17 hearing, the arrestee is given
an affidavit of indigence. The arrestee completes the affidavit in his/her cell and submits it to jail staff.
If the arrestee was arrested on a misdemeanor charge, the request and paperwork are carried to the
county judge’s office. If the arrestee was arrested on a felony charge, the request and paperwork are
mailed via US Postal Service to the district judge.
       In felony cases, persons who appear in court without counsel are told of the procedures for
requesting counsel and are able to request counsel. In misdemeanor cases, persons who appear in court
without counsel are not told of the procedures for requesting counsel prior to any communications with
the prosecutor but are instead told to communicate with the prosecutor and to negotiate a plea deal if
possible.
        For felony defendants deemed indigent, a contract defender is appointed unless there is a
conflict of interest, in which case, private assigned counsel is appointed. For misdemeanor defendants,
the regional public defender based at Texas Tech University is appointed unless there is a conflict of
interest, in which case, private assigned counsel is appointed.
      A summary of indigent defense statistics, which were submitted by the County to the
Commission through the Office of Court Administration (OCA), follows on the next page. The tables
show appointment rates for the court systems as well as respective expenditure data.




                                                                                                           8
                      Table 1: Indigent Defense Statistics for Gaines County
                   2001
Gaines County                  2009          2010          2011          2012          Texas 2012
                  Baseline
Population
Estimate             14,329      15,491        17,526         17,526       17,526         25,145,561
Felony Cases
Added                               158             128           138           134         265,164
Felony Cases
Paid                                  90             63            60            80         187,191
Felony
Appointment
Rate                            56.96%         49.22%        43.48%       59.70%             70.59%
Felony Attorney
Fees                            $27,167       $24,224       $23,162       $21,642        $96,565,159
Total Felony
Expenditures                    $28,192       $25,924       $24,937       $25,967      $109,246,777
Misdemeanor
Cases Added                         658             656           613           442         548,348
Misdemeanor
Cases Paid                            41             69            60            64         219,094
Misdemeanor
Appointment
Rate                             6.23%         10.52%         9.79%       14.48%             39.96%
Misdemeanor
Attorney Fees                    $9,224       $17,088       $15,246        $4,963        $34,602,430
Total
Misdemeanor
Expenditures                     $9,224       $17,088       $15,507        $4,963        $35,376,847
Juvenile Cases
Added                                 32             34            29            12          33,195
Juvenile Cases
Paid                                  29             43            32            25          50,544
Juvenile
Attorney Fees                   $11,262       $13,867         $9,069       $5,295        $10,116,013
Total Juvenile
Expenditures                    $11,262       $13,867         $9,069       $5,295        $10,824,846
Total Attorney
Fees                $18,324     $52,420       $55,419       $48,547       $33,494      $146,421,392
Total ID
Expenditures        $27,984     $72,198       $62,532       $68,718       $50,719      $207,539,623
Increase In
Total
Expenditures
over Baseline                  158.00%       123.45%        145.56%       81.24%            133.95%
Total ID
Expenditures
per Population
                      $1.95       $4.66         $3.57          $3.92           $2.89           $8.25
Formula +
Equalization
Grant
Disbursement                    $11,856       $11,766       $13,215       $12,517        $16,389,199
Recoupment of
Fees from
Defendants                       $6,911        $4,928         $6,348       $8,853        $12,289,163


                                                                                                       9
Program Assessment
        In the assessment that follows, the core requirements of the FDA are listed with a description of
statutory provisions and are compared to the County’s performance with regard to each requirement. If
the monitor found that the County met the respective requirement, a box to the left of the provision is
checked. The local processes are then described, and commendations and recommendations are made
regarding these processes. The local indigent defense plans are listed in Appendix A (district court
plan), Appendix B (county court plan), and Appendix C (juvenile plan).

Core Requirement 1. Conduct prompt and accurate magistration proceedings.
Local Practices Compared to Adult Statutory Provisions
    The accused must be brought before a magistrate within 48 hours of arrest. 2
        • A person arrested for a misdemeanor without a warrant must be released on bond in an
            amount no more than $5,000 not later than 24 hours after arrest if a magistrate has not
            determined probable cause by that time. 3
    The magistrate must inform and explain the right to counsel and the right to appointed counsel to
    the accused. 4
    The magistrate must ensure that reasonable assistance in completing forms necessary to request
    counsel is provided to the accused. 5
    A record must be made of the following:
        • the magistrate informing the accused of the accused’s right to request appointment of
            counsel;
        • the magistrate asking whether accused wants to request appointment of counsel;
                                                                       6
        • and whether the person requested court appointed counsel.
    If authorized to appoint counsel, the magistrate must do so within one working day after receipt of
    request for counsel in counties with a population of 250,000 or more and within three working
    days in counties under 250,000. 7
    If not authorized to appoint counsel, the magistrate must transmit or cause to be transmitted to the
    appointing authority an accused’s request for counsel within 24 hours of the request being made. 8




2
  Tex. Code Crim. Proc. art. 14.06(a).
3
  Tex. Code Crim. Proc. art. 17.033.
4
  Tex. Code Crim. Proc. art. 15.17(a).
5
  Id. This box is not checked because assistance in completing forms is not provided at the time of the hearing.
6
  Tex. Code Crim. Proc. art. 15.17(e).
7
  Tex. Code Crim. Proc. art. 15.17(a). This box is not checked, because the magistrate is not the appointing authority.
8
  Id. This box is not check because there appears to be issues with promptly transmitting requests to the appointing
authority.
Jurisdiction’s Process
       Gaines County uses centralized magistrate warnings where all arrestees in the County are
brought to the Gaines County Jail so that probable cause can be determined, bond can be set, and
requests for counsel can be taken. The Article 15.17 hearings are conducted by the two justices-of-the-
peace and the county judge, with one justice-of-the-peace conducting the majority of the hearings. The
hearings are conducted daily, often at about 9:00 a.m.
        According to Judicial Council Monthly Court Activity Report data submitted by the justice
courts to the Office of Court Administration (OCA) for FY2012 (October 2011 – September 2012), the
two justices-of-the-peace conducted Article 15.17 hearings for 288 misdemeanor arrestees and 183
felony arrestees. According to this same data source, 126 of the 288 (or 44%) misdemeanor arrestees
requested counsel at the Article 15.17 hearings, and 99 of the 183 (or 54%) felony arrestees requested
counsel. 9
Timeliness of Warnings
        The monitor analyzed the timeliness of a sample of Article 15.17 hearings conducted during
FY2012 (October 2011 – September 2012). All forms used in this sample were from hearings
conducted by the precinct #1 justice-of-the-peace. Based on the data the monitor examined, the
monitor was not able to ascertain the number of hours from arrest until the Article 15.17 hearing.
However, in many of the case files examined, the monitor was able to ascertain the date of arrest and
the date of the hearing. In this way, the monitor assumed that if the hearing occurred within two days
of arrest, the hearings were timely. Similarly, if the hearings occurred more than two days after arrest,
the hearings were not timely. 10 All records reviewed appeared to involve timely Article 15.17 hearings.
               Table 2: Gaines County Times to Article 15.17 Hearing
                                                        Sample Size           Percent
                                  11
    Number of records examined                                    64
    Article 15.17 hearing occurs x days after
    arrest:
        0 days                                                        14            21.9%
        1 day                                                         49            76.6%
        2 days                                                         1              1.6%
    Timely Hearings                                                   64             100%


    Commendation: Gaines County has procedures in place to ensure that arrestees receive timely
    Article 15.17 hearings.


Handling Requests for Counsel
       According to a justice-of-the-peace and jail staff, when persons request counsel at the Article
15.17 hearing, the affidavit of indigence is given to the arrestee requesting counsel. The arrestee goes
back to his/her cell and completes the form at his/her convenience. After completing the form, the

9
  See http://card.txcourts.gov/ReportSelection.aspx for data reported to OCA. Data showing requests for counsel at the
justice court level can be found under the justice court activity detail.
10
   This assumption means that the 48 hour time limit is actually extended for purposes of deeming a warning late.
11
   The total number of records listed only includes those records where the time from arrest until the Article 15.17 hearing
could be determined.
                                                                                                                           11
inmate signals for jail staff to take the form. Jail staff then put it into an outbox. If the arrest was for a
misdemeanor offense, the request is walked down the street and given to the county judge. If the arrest
was for a felony offense, the request is mailed via US Postal Service to the district judge’s office in
Dawson County.
        Article 15.17(a) of the Code of Criminal Procedure requires, “… 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. …” Gaines County must implement procedures for ensuring
assistance in completing the necessary forms for requesting counsel at the time of the Article 15.17
hearing.

 Recommendation 1: Gaines County must implement procedures to ensure assistance in completing
 the necessary forms for requesting counsel at the time of the Article 15.17 hearing.

       Article 15.17(a) of the Code of Criminal Procedure further requires, “…If the magistrate is not
authorized to appoint counsel, the magistrate shall without unnecessary delay, but not later than 24
hours after the person arrested requests appointment of counsel, transmit, or cause to be transmitted to
the court or to the courts' designee authorized under Article 26.04 to appoint counsel in the county, the
forms requesting the appointment of counsel. …” Gaines County must implement procedures to
transmit all requests for counsel to the appointing authority within 24 hours of the request. These new
procedures require methods that can reliably transmit requests within 24 hours of the request being
made (such as email or fax as opposed to a letter sent through the US Postal Service).

 Recommendation 2: Gaines County must implement procedures to transmit all requests for counsel
 to the appointing authority within 24 hours of the request.


Core Requirement 2. Determine indigence according to standards directed by the
indigent defense plan. 12
Local Indigent Defense Plan Compared to Adult Statutory Provisions
     Provide detailed procedures used to determine whether a defendant is indigent. 13
     State the financial standard(s) to determine whether a defendant is indigent. 14
     List factors the court will consider when determining whether a defendant is indigent. 15




12
   The policy monitor does not evaluate this core requirement by determining whether persons applying for counsel are
appropriately deemed indigent or non-indigent, but rather by examining whether the jurisdiction’s indigent defense plan
meets relevant statutes.
13
   Tex. Code Crim. Proc. art. 26.04(l)-(r).
14
   Tex. Code Crim. Proc. art. 26.04(l).
15
   Tex. Code Crim. Proc. art. 26.04(m).
                                                                                                                          12
District Court’s Plan
        According to the district court’s indigent defense plan (see Appendix A), in determining
indigence, the district judge considers the factors listed in Article 26.04(m). The judge does not
consider whether the defendant has posted bail, except to the extent that it reflects the defendant’s
financial circumstances. The financial standard used is that a defendant whose income is less than
200% of the Federal Poverty Guidelines is considered indigent. Defendants receiving any of the
following assistance services are also considered indigent: food stamps; Medicaid; Temporary
Assistance for Needy Families; public housing; or Supplemental Security Income.

 Commendation: The district court’s felony indigence determination standards, as stated in its
 indigent defense plan, meet relevant statutory requirements.

County Court’s Plan
       According to the county court’s indigent defense plan (see Appendix B), the financial standard
considers that a defendant whose income is less than 100% of the Federal Poverty Guidelines is
indigent. Defendants receiving any of the following assistance services are also considered indigent:
food stamps; Medicaid; Temporary Assistance for Needy Families; public housing; or Supplemental
Security Income. The judge does not consider whether the defendant has posted bail.

 Commendation: The county court’s misdemeanor indigence determination standards, as stated in its
 indigent defense plan, meet relevant statutory requirements.

Local Indigent Defense Plan Compared to Juvenile Statutory Provisions
     Detail procedures used to determine whether a child’s parent(s) or other person(s) responsible for
     child’s support are indigent. 16
     State financial standard(s) to determine whether a child’s parent(s) or other person(s) responsible
     for child’s support are indigent. 17
     List factors courts will consider when determining whether a child’s parent(s) or other person(s)
     responsible for child’s support are indigent. 18

Jurisdiction’s Plan
        According to the County’s juvenile indigent defense plan (see Appendix C), all juveniles
charged by petition are presumed to be indigent unless the state pleads and proves otherwise. The
financial standard of indigence looks to persons responsible for the support of the juvenile and
considers them indigent if they have an income less than 100% of the Federal Poverty Guidelines.
Persons receiving food stamps, Medicaid, Temporary Assistance for Needy Families, Supplemental
Security Income, or public housing are also considered indigent.

 Commendation: The county court’s juvenile indigence determination standards, as stated in its
 indigent defense plan, meet relevant statutory requirements.


16
   Tex. Fam. Code § 51.102(b)(1). Tex. Code Crim. Proc. art. 26.04(l)-(r).
17
   Tex. Code Crim. Proc. art. 26.04(l).
18
   Tex. Code Crim. Proc. art. 26.04(m).
                                                                                                      13
Core Requirement 3. Establish minimum attorney qualifications.
Local Practices Compared to Adult Statutory Provisions
       Establish objective qualification standards for attorneys to be on an appointment list. 19
           • Standards must require attorneys to complete at least six hours of continuing legal
               education pertaining to criminal law during each 12-month reporting period or be currently
               certified in criminal law by the Texas Board of Legal Specialization. 20
       Attorneys must be approved by a majority of the judges who established the appointment list to be
       placed on the appointment list. 21

Jurisdiction’s Process (Felony Courts):
        The district court uses a contract defender to provide representation for indigent felony
defendants. If there is a conflict of interest, the case is assigned to one of the attorneys who applied to
be on the appointment list.
       The monitor found that the felony court appeared to have procedures for managing the attorney
appointment list and for ensuring that all attorneys on the list met their annual CLE requirements as
described in the indigent defense plans.

     Commendation: The district court has procedures for managing the attorney appointment list for
     felony cases and for ensuring that all attorneys on the list met their annual CLE requirements as
     described in the indigent defense plan.

Misdemeanor Courts
       The county court uses the Caprock Public Defender Office to provide representation for
indigent misdemeanor defendants. If there is a conflict of interest, the case is assigned to one of the
attorneys who applied to be on the appointment list.
       The monitor found that the misdemeanor court appeared to have procedures for managing the
attorney appointment list and for ensuring that all attorneys on the list met their annual CLE
requirements as described in the indigent defense plans.

     Commendation: The county court has procedures for managing the attorney appointment list for
     misdemeanor cases and for ensuring that all attorneys on the list met their annual CLE requirements
     as described in the indigent defense plan.




19
   Tex. Code Crim. Proc. art. 26.04(d).
20
   1 TAC §§174.1-174.4.
21
   Tex. Code Crim. Proc. art. 26.04(d). The monitor did not examine actual attorney applications to be on the appointment
list. The box is checked because the courts clearly had appointment lists that they followed.
                                                                                                                        14
Local Practices Compared to Juvenile Statutory Provisions
    Establish objective qualification standards for attorneys for three levels of conduct. 22
        • Conduct indicating a need for supervision or delinquent conduct (no TYC possible);
        • Delinquent conduct (TYC possible); and
        • Determinate sentence or discretionary transfer to criminal court proceedings have been
            initiated.
    Standards must require attorneys to complete at least six hours of continuing legal education
    pertaining to juvenile law during each 12-month reporting period or be currently certified in
    juvenile law by the Texas Board of Legal Specialization. 23
    Attorneys must be approved by a majority of the Juvenile Board or judges on the Juvenile Board
    to be placed on or removed from the appointment list. 24

Jurisdiction’s Process (Juvenile Courts):
       The county court uses two attorneys to provide representation for juvenile defendants. The
monitor found that the juvenile court appeared to have procedures for managing the attorney
appointment list and for ensuring that all attorneys on the list met their annual CLE requirements as
described in the indigent defense plans.

 Commendation: The county court has procedures for managing the attorney appointment list for
 juvenile cases and for ensuring that all attorneys on the list met their annual CLE requirements as
 described in the indigent defense plan.




22
   Tex. Fam. Code § 51.102(a),(b)(2).
23
   1 TAC §§174.1-174.4.
24
   Tex. Fam. Code § 51.102(a), Tex. Code Crim. Proc. art. 26.04(d). The monitor did not examine actual attorney
applications to be on the appointment list. The box is checked because the courts clearly had appointment lists that they
followed.
                                                                                                                            15
Core Requirement 4. Appoint counsel promptly.
Local Practices Compared to Adult Statutory Provisions
    Incarcerated persons: After receipt of a request for counsel, counsel must be appointed within one
    working day in counties with a population of 250,000 or more and within three working days in
    counties under 250,000. 25
    Persons out of custody: Counsel must be appointed at the defendant's first court appearance or
    when adversarial judicial proceedings are initiated, whichever comes first. 26
    All unrepresented defendants must be advised of the right to counsel and the procedures for
    obtaining counsel. 27
Jurisdiction’s Process
Felony Appointments:
        The monitor examined 32 felony cases that were filed in FY2012 to determine the timeliness of
felony appointments. Of these 32 cases, 22 were initially represented by appointed counsel, nine by
retained counsel, and one was pro se. 28 The monitor could ascertain the timeliness of indigence
determinations in seventeen of the 32 cases. 29 In those cases where the monitor could ascertain the
timeliness of determinations of indigence, the monitor found that four of the cases had determinations
of indigence made within the FDA guidelines (three working days plus 24 hours allowed in
transmitting the request for counsel). This percent of timely indigence determinations (24% timely)
falls outside of the Commission’s threshold for presuming that a jurisdiction’s processes are timely.
The sample size used for this determination is small. If the jurisdiction wishes the monitor to re-
examine this issue with a larger sample size, the monitor is willing to go back to the jurisdiction at a
later date and attempt to obtain a larger sample size. See the following table for a summary of the
timeliness of determinations of indigence found in the monitor’s sample.
                Table 3: Times to Indigence Determination in Felony Cases
                                                           Sample        Number from
     Gaines Felony Appointment Sample Data                                                 Percent
                                                            Size           sample
 Number of Indigence Determinations Examined                  17
 Appointment / Denial of Indigence Occurred in:
    0 work days                                                                1             5.9%
    1 work day + 24 hour transfer                                              0              0%
    2 work days + 24 hour transfer                                             1             5.9%
    3 work days + 24 hour transfer                                             2            11.8%
 Timely determinations of indigence                                            4            23.5%
 Untimely determinations of indigence                                         13           76.5.0%


25
   Tex. Code Crim. Proc. art. 1.051(c). This box is not checked because the monitor’s sample of appointments was less than
90% timely.
26
   Tex. Code Crim. Proc. art. 1.051(j). Rothgery v. Gillespie County, 554 U.S. 191 (2008). This box is not checked because
the monitor’s sample of appointments was less than 90% timely.
27
   Tex. Code Crim. Proc. art. 1.051(f-2). This box is not checked because the procedures examined did not meet the
requirements of Article 1.051.
28
   The pro se was dismissed.
29
   Some cases from the sample involved the appointment of counsel, but the monitor was unable to obtain a matching
Article 15.17 warning form that indicated whether counsel was requested at the hearing.
                                                                                                                       16
        Of the thirteen sample cases that were not timely, eight determinations of indigence were made
between four and six working days after request (with an allowance of 24 hours to transmit the
requests). One request was ruled upon nine working days after request; another at sixteen working
days; two were ruled upon more than twenty working days after the request; and one file had a request
with no determination of indigence. One possible reason for many of the late appointments involves
the procedures for transferring the requests to the district judge. According to Gaines County jail
personnel, forms for requesting counsel are not completed at the time of magistrate warnings but at a
later time. The forms are then sent by US Postal Service to the district judge. These steps likely cause
delays so that by the time the district judge receives a request, the determination of indigence is already
due.
     Recommendation 3: Gaines County and the 106th District Court must implement procedures to
     ensure that determinations of indigence in felony cases fall within the time frames set by the FDA.


Misdemeanor Appointments:
        The monitor examined 120 misdemeanor cases that were filed in FY2012 to determine the
timeliness of misdemeanor appointments. Of these 120 cases, eight 30 were initially represented by
appointed counsel, seventeen by retained counsel, and 95 were pro se. 31 The monitor could ascertain
the timeliness of indigence determinations in fifteen of the cases that were examined. In those cases
where the monitor could ascertain the timeliness of determinations of indigence, the monitor found that
four of the cases had determinations of indigence made within the FDA guidelines (three working days
plus 24 hours allowed in transmitting the request for counsel). This 27% percent of timely indigence
determinations falls outside of the Commission’s 90% threshold for presuming that a jurisdiction’s
processes are timely. The sample size used for this analysis was small. If the jurisdiction wishes the
monitor to re-examine this issue with a larger sample size, the monitor is willing to go back to the
jurisdiction at a later date and attempt to obtain a larger sample size. See the following table for a
summary of the timeliness of determinations of indigence found in the monitor’s sample.
             Table 4: Times to Indigence Determination in Misdemeanor Cases 32
      Gaines Misdemeanor Appointment Sample                Sample       Number from
                                                                                           Percent
                      Data                                  Size          sample
 Number of Indigence Determinations Examined                  15
 Appointment / Denial of Indigence Occurred in:
    0 work days                                                                2            13.3%
    1 work day + 24 hour transfer                                              1             6.7%
    2 work days + 24 hour transfer                                             0              0%
    3 work days + 24 hour transfer                                             1             6.7%
 Timely determinations of indigence                                            4            26.7%
 Untimely determinations of indigence                                         11            73.3%



30
   The sample in Table 4 does not include three instances in which counsel was appointed, but the monitor could not
determine the time from request until appointment.
31
   Of the 95 pro se cases, 22 were dismissed (12 for paying restitution on theft cases) and 34 were still active.
32
   These determinations of indigence included five appointments of counsel and ten instances in which there were no
rulings on the request for counsel.
                                                                                                                      17
        Of the eleven sample cases that were not timely, ten cases involved a request for counsel with
no ruling on the request. One request was ruled upon six working days after request.

 Recommendation 4: Gaines County must implement procedures to ensure timely determinations of
 indigence in misdemeanor cases. In particular, the court must rule upon all requests for counsel.


Other Findings from Misdemeanor Case Files:
       Of the 120 misdemeanor case files examined, four involved instances where an arrestee
requested counsel, but in which there was no determination of indigence listed in the case file, and
where the defendant pled to either probation or a term of confinement. Article 1.051(f-1) of the Code
of Criminal Procedure disallows communications between the attorney representing the state and
persons with pending requests for counsel. Article 1.051(f-1) states:
      … the attorney representing the state may not:
              (2) communicate with a defendant who has requested the appointment of counsel, unless
              the court or the court's designee authorized under Article 26.04 to appoint counsel for
              indigent defendants in the county has denied the request and, subsequent to the denial,
              the defendant:
                      (A) has been given a reasonable opportunity to retain and has failed to retain
                      private counsel; or
                      (B) waives or has waived the opportunity to retain private counsel.
The fact that four persons agreed to pleas while having pending requests for counsel is an indication
that Gaines County does not have procedures in place that prevent a defendant with a pending request
for counsel from communicating with the prosecutor.
      In the review of case files, the monitor noticed that waivers of counsel were part of the plea
packet. The fact that a waiver was part of the plea packet is an indication that the plea agreement
occurred prior to the waiver. Under Article 1.051(f-1) of the Code of Criminal Procedure:
      In any adversary judicial proceeding that may result in punishment by confinement, the attorney
      representing the state may not:
               (1) initiate or encourage an attempt to obtain from a defendant who is not represented by
               counsel a waiver of the right to counsel; …
Article 1.051(g) of the Code of Criminal Procedure further states:
      (g) If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or
      proceeding to trial, the court shall advise the defendant of the nature of the charges against the
      defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-
      representation. If the court determines that the waiver is voluntarily and intelligently made, the
      court shall provide the defendant with a statement substantially in the following form, which, if
      signed by the defendant, shall be filed with and become part of the record of the proceedings:
      "I have been advised this ______ day of __________, 2___, by the (name of court) Court of my
      right to representation by counsel in the case pending against me. I have been further advised
      that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding
      my right to have counsel appointed for me free of charge if I am not financially able to employ
      counsel, I wish to waive that right and request the court to proceed with my case without an
      attorney being appointed for me. I hereby waive my right to counsel. (signature of defendant)"


                                                                                                     18
The current procedures do not seem to allow the court to determine if the waiver is voluntarily and
intelligently made prior to the pro se plea agreement. Rather, the waivers appear to be initiated by the
prosecutor.

 Recommendation 5: Gaines County must implement procedures to ensure that the court rules upon
 requests for counsel prior to granting any waiver of counsel. The procedure must provide that the
 court may not direct or encourage the defendant to communicate with the attorney representing the
 state until the court advises of the right to counsel and explains the process for requesting counsel.
 Article 1.051(f-1)(1), Code of Criminal Procedure prohibits an attorney representing the state from
 initiating or encouraging a waiver of counsel from an unrepresented defendant.

      In the examination of misdemeanor case files, the monitor also found one case that included a pro
se plea with no waiver of counsel. Article 1.051(f) of the Code of Criminal Procedure states:
      A defendant may voluntarily and intelligently waive in writing the right to counsel. A waiver
      obtained in violation of Subsection (f-1) or (f-2) is presumed invalid.

 Recommendation 6: Pro se pleas must include written waivers of counsel as required by Article
 1.051(f), Code of Criminal Procedure.

Other Areas of Concern:
        Four case files included waivers of arraignment signed by an attorney acting as bondsman. In
three of these four cases, the defendants went on to plead pro se. There were no withdrawals of counsel
by the attorney acting as bondsman in any of these four cases. Another case file included a waiver of
counsel where the defendant was represented by retained counsel. The fact that a defendant had
retained counsel and signed the waiver shows a lack of knowledge or inattentiveness.
Observations of a Misdemeanor Arraignment Docket:
        The monitor observed a misdemeanor arraignment docket. At this docket, the county judge
made a roll call. The judge announced that he would leave the room, and noted that defendants without
an attorney should speak to the prosecutor to see if they could work out a deal. He said that he would
later return to dispose cases in which a deal had been worked out. The judge did not explain the
procedures for requesting counsel. The judge then left the room and returned to dispose cases in which
a plea had been arranged. Article 1.051(f-2) of the Code of Criminal Procedure states:
      In any adversary judicial proceeding that may result in punishment by confinement, the court
      may not direct or encourage the defendant to communicate with the attorney representing the
      state until the court advises the defendant of the right to counsel and the procedure for
      requesting appointed counsel and the defendant has been given a reasonable opportunity to
      request appointed counsel. If the defendant has requested appointed counsel, the court may not
      direct or encourage the defendant to communicate with the attorney representing the state unless
      the court or the court's designee authorized under Article 26.04 to appoint counsel for indigent
      defendants in the county has denied the request and, subsequent to the denial, the defendant:
              (1) has been given a reasonable opportunity to retain and has failed to retain private
              counsel; or
              (2) waives or has waived the opportunity to retain private counsel.
        Based upon the monitor’s observations, Gaines County is not following its indigent defense
plan that states:
                                                                                                     19
       The court may not direct or encourage the defendant to communicate with the attorney
       representing the state until the court advises the defendant of the right to counsel and the
       procedure for requesting appointed counsel and the defendant has been given a reasonable
       opportunity to request appointed counsel.
The indigent defense plan and Article 1.051(f-2) require that procedures for requesting counsel be
explained to all unrepresented defendants prior to any communications with the prosecutor.

 Recommendation 7: The county court must follow the procedures set in its indigent defense plan
 and in Article 1.051(f-2) and explain the procedures for requesting counsel to defendants appearing
 in court without counsel.

       To briefly summarize the waiver of counsel requirements in Article 1.051, the court must
explain the procedures for requesting counsel to all defendants appearing in court without counsel. The
court must rule on all requests for counsel, including those requests made prior to the hearing. There
can be no communication between the prosecutor and the defendant until the first two conditions have
been completed. After the defendant waives counsel, the prosecutor may communicate with the
defendant.




                                                                                                    20
Local Practices Compared to Juvenile Statutory Provisions
    If the child was not represented by an attorney at the detention hearing and a determination was
    made to detain the child, the child shall be immediately entitled to representation by an attorney. 33
    If the child was not detained, an attorney must be appointed on or before the fifth working day
    after the date the petition for adjudication, motion to modify, or discretionary transfer hearing was
    served on the child. 34
Juvenile Appointments:
                 Figure 2: Statutory Attorney Appointment Timeline for Juveniles
                    (relevant Texas Family Code references are listed in parentheses)




33
     Tex. Fam. Code § 51.10(c).
34
     Tex. Fam. Code § 51.101(d).
                                                                                                       21
       The monitor examined the timeliness of indigence determinations in instances when the
juvenile was detained and in instances when a petition was served on the juvenile. To ascertain the
timeliness of local processes, the monitor examined three disposed juvenile case files from FY2012
(October 2011 – September 2012). This low number of cases reviewed is a reflection of the low
number of cases filed in Gaines County.
Juvenile Detention Hearings
        Under Section 51.10 of the Family Code, a detention hearing may be conducted without the
presence of an attorney. However, if there is a decision to detain the juvenile, Section 51.10(c) requires
either an order to retain counsel or an immediate appointment of counsel. If no attorney was present for
the hearing, the attorney who is subsequently appointed or retained may request a de novo hearing
under Section 54.01(n) of the Family Code.
        Of the three juvenile case files that the monitor examined, two cases contained at least one
detention hearing with a decision to detain the juvenile. In both of these cases, counsel was present for
all detention hearings. The county judge noted that counsel is always present at detention hearings.

 Commendation: Gaines County’s practice of ensuring that counsel is present at all juvenile
 detention hearings meets the requirements set in Section 51.10 of the Family Code.


Petitions Served on the Juvenile
       Under Section 51.101(c) and (d) of the Family Code, once a petition is served on the juvenile,
the court has five working days to appoint counsel for the juvenile. Of the three juvenile cases
examined by the monitor, all had counsel appointed by the fifth working day after the juvenile was
served with a petition.

Commendation: Gaines County’s appointment practices in instances when a juvenile is served with
a petition meet the requirements of Section 51.101 of the Family Code.




                                                                                                       22
Core Requirement 5. Institute a fair, neutral, and non-discriminatory attorney
selection process.
Local Practices Compared to Adult and Juvenile Statutory Provisions
    Rotational method: The court must appoint an attorney 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. 35
    Public Defender: The system must meet the requirements set out in Article 26.044 of the Code of
    Criminal Procedure. The appointment process must be listed in the indigent defense plan. 36
    Alternative appointment method: 37
        • The local processes must be established by vote of two-thirds of the judges.
        • The plan must be approved by presiding judge of administrative judicial region.
        • The courts must allocate appointments reasonably and impartially among qualified
           attorneys.
     For a contract defender program, the county must meet contract defender standards. 38

        Gaines County utilizes both a felony contract defender and a misdemeanor public defender
office. The utilization of these appointment systems means that the fairness of the selection process is
not measured by an examination of the distribution of appointments. For the contract defender, the
fairness of the system is measured according to whether the contents of the contract meet the
Commission’s contract defender rules and whether the implementation of the contract meets the
contract terms and relevant statutory requirements. For the public defender, the fairness of the system
is measured according to whether the office meets relevant statutory requirements and its own written
procedures. The analysis covering both the contract defender and the public defender delves into
budgets and payment systems. This analysis is covered entirely in Core Requirement 5 rather than in
Core Requirement 6 (which deals with payment systems).

Jurisdiction’s Process
Felonies:
       Appointments of counsel in felony cases are made under a contract with a defense attorney who
represents defendants in the counties of the 106th District Court. If a conflict of interest exists in
representing a felony defendant, alternative counsel is appointed from the felony appointment list.
        The Commission has established contract defender rules found in Title 1, Rules 174.10 –
174.25 of the Texas Administrative Code. The felony contract is listed in Appendix D. In the analysis
that follows, the monitor makes two types of comparisons: (1) a comparison between the contents of
the contract and the requirements set in the contract defender rules and (2) a comparison between the
implementation of the contract and either the contract defender rules or the terms of the contract.



35
   Tex. Code Crim. Proc. art. 26.04(a). Only one of the boxes in this section needs to be checked to meet statutory
requirements.
36
   Tex. Code Crim. Proc. art. 26.044.
37
   Tex. Code Crim. Proc. art. 26.04(g)-(h).
38
   1 TAC §§174.10-174.25.
                                                                                                                      23
Comparison of the Contract with Contract Defender Rules
Solicitation Process
         The Commission’s rules regarding the contract solicitation process are set in 1 TAC §§ 174.12
- 174.15. These rules require that there be a notification of the opportunity to apply, an opportunity to
respond, and an application. The application is to be reviewed by the appointing authority and the
following factors are to be considered: (1) experience and qualifications of the applicant; (2)
applicant’s past performance in representing defendants in criminal cases; (3) applicant’s disciplinary
history with the state bar; (4) applicant’s ability to comply with the terms of the contract; and (5) cost
of the services under the contract. The contracting authority can only enter into the contract if the
contract complies with the Commission’s contract standards and all applicable laws governing
professional service contracts entered into by counties. The contract is not to be awarded solely on the
basis of cost.
         The notification of an opportunity to apply to be the felony contract attorney is part of the
district court’s indigent defense plan (see the end of Appendix A). According to an interview with the
auditor’s office, the current holder of the contract is the only person to ever apply for the contract. This
solicitation process meets the Commission’s administrative requirements.

 Commendation: The contract solicitation process meets the Commission’s requirements as set in 1
 TAC §§ 174.12 - 174.15.

Parties
       The contract identifies the appointing authority, contracting authority, and contractor. The
contract states:
       The county of Gaines (“COUNTY”) and The Law Offices of Arthur Aguilar, Jr.
       (“ATTORNEY”) are the parties to this agreement. The District Judge of the 106th Judicial
        District (“DISTRICT JUDGE”) is the appointing authority approving ATTORNEY to represent
        indigent criminal defendants in COUNTY. This agreement establishes conditions under which
        ATTORNEY will provide legal representation for indigent criminal defendants in COUNTY.
This language meets the requirement of 1 TAC § 174.15.

Term of Contract
        The contract specifies the term of the contract, including a provision for extension and a
provision for terminating early. The contract states:
        This agreement shall commence on January 1, 2013 and shall terminate December 31, 2013,
        unless terminated earlier by either party. The parties shall have an option to renew the contract
        for additional years, and prior to October 1, 2013, the parties will revisit the contract to
        consider any desired modifications to the terms and conditions of this contract.
This language meets the requirement of 1 TAC § 174.16.

Scope of Contract
       The contract specifies the category of cases in which the contractor is to provide services. The
contract states:
       ATTORNEY will provide legal representation for indigent criminal defendants in COUNTY for
       felony cases only. Under this contract, a felony will be considered to be any criminal offense
       that carries a possible punishment of confinement in excess of one year or that is classified as a
                                                                                                       24
        State Jail Felony, Third Degree Felony, Second Degree Felony or First Degree Felony by the
        Penal Code of Texas. Under this contract, ATTORNEY will represent only those defendants
        designated by DISTRICT JUDGE, and no file shall be opened or appearance made under this
        contract except by order of DISTRICT JUDGE. ATTORNEY shall represent such defendants in
        the trial court and on direct appeal in any of the appellate courts to which such case is
        appealed. Post conviction writs are extraordinary and are NOT covered in this contract.
        Capital Murder Trials where the State elects to pursue the Death Penalty are NOT covered in
        this contract. This contract does not cover any juvenile or misdemeanor work in the 106th
        Judicial District. However, if an indigent defendant has a misdemeanor charge as well as a
        felony charge, ATTORNEY will handle the misdemeanor charge at no extra cost to COUNTY
        as long as the misdemeanor charge is taken into account in determining sentence for the felony
        offense as provided in Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will
        consider the indigent defendant to be under this contract for only the felony case.
This language meets the requirement of 1 TAC § 174.17.

Minimum Attorney Qualifications
       The contract references the minimum attorney qualifications and their maintenance by noting
the requirements of the Texas Fair Defense Act and the 106th Judicial District’s Local Plan. The
contract states:
       ATTORNEY shall meet qualifications and shall devote time, attention and energies to the
       performance of duties under this contract in accordance with the Texas Fair Defense Act, the
       ABA’s recommended caseload limitations, and pursuant to the provisions of the 106th Judicial
       District’s Local Plan to Implement the Texas Fair Defense Act, including but not limited to the
       qualifications set out in the Application/Affidavit for the 106th Judicial District Court
       Attorney Appointment List.
The Fair Defense Act requires that attorneys receive at least six criminal CLE hours annually to
receive criminal appointments. The 106th District’s Local Plan requires at least ten criminal CLE hours
annually. This language meets the requirement of 1 TAC § 174.18. The monitor reviewed the criminal
CLE hours of the contract attorney and found that they exceeded the contract requirements.

 Commendation: The contract attorney met and exceeded the annual criminal CLE requirements
 set in the contract.

Duration of Representation
        The contract references the Fair Defense Act and asserts, “Attorney shall represent such
defendants in the trial court and on direct appeal in any of the appellate courts to which such case is
appealed.” This assertion implies that the attorney will represent clients from appointment through case
disposition at the trial level and then on appeal afterwards. The relevant contract provisions state:
        ATTORNEY shall meet qualifications and shall devote time, attention and energies to the
        performance of duties under this contract in accordance with the Texas Fair Defense Act, the
        ABA’s recommended caseload limitations, and pursuant to the provisions of the 106th Judicial
        District’s Local Plan to Implement the Texas Fair Defense Act, including but not limited to the
        qualifications set out in the Application/Affidavit for the 106th Judicial District Court Attorney
        Appointment List.
       ATTORNEY will provide legal representation for indigent criminal defendants in COUNTY
       for felony cases only. Under this contract, a felony will be considered to be any criminal
                                                                                                  25
        offense that carries a possible punishment of confinement in excess of one year or that is
        classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First Degree
        Felony by the Penal Code of Texas. Under this contract, ATTORNEY will represent only those
        defendants designated by DISTRICT JUDGE, and no file shall be opened or appearance made
        under this contract except by order of DISTRICT JUDGE. ATTORNEY shall represent such
        defendants in the trial court and on direct appeal in any of the appellate courts to which such
        case is appealed. Post conviction writs are extraordinary and are NOT covered in this
        contract. Capital Murder Trials where the State elects to pursue the Death Penalty are NOT
        covered in this contract. This contract does not cover any juvenile or misdemeanor work in the
        106th Judicial District. However, if an indigent defendant has a misdemeanor charge as well
        as a felony charge, ATTORNEY will handle the misdemeanor charge at no extra cost to
        COUNTY as long as the misdemeanor charge is taken into account in determining sentence
        for the felony offense as provided in Section 12.45 of the Texas Penal Code. Otherwise,
        ATTORNEY will consider the indigent defendant to be under this contract for only the felony
        case.
This language meets the requirement of 1 TAC § 174.19.
       In the monitor’s review of case files, the monitor saw that the contract attorney represented
defendants for the duration of the case unless there was a conflict of interest or the defendant retained
counsel.

 Commendation: Based upon the monitor’s review of case files, the contract defender’s duration of
 representation meets the requirements set in the contract and which are established under Article
 26.04(j)(2) of the Code of Criminal Procedure.

Substitution of Attorneys
        The contract identifies the attorney who will perform legal representation and prohibits
substitution without prior approval by the appointing authority. The contract states:
        ATTORNEY may employ an associate attorney(s) to assist in representing defendants under
        this contract with the prior consent and approval of DISTRICT JUDGE, but only at
        ATTORNEY’s sole expense. ATTORNEY shall not assign its entire rights under this contract or
        delegate the entire performance of its duties under this contract.
This language meets the requirement of 1 TAC § 174.20.




                                                                                                      26
Caseload Limitations
       The contract refers to the ABA’s recommended caseload limitations. 39 Under this limitation,
the contract attorney cannot exceed a combination of cases that would be equivalent to 150 felony
cases, 400 misdemeanor cases, 200 juvenile cases, or 25 appeals cases. The contract states the
following:
       ATTORNEY shall meet qualifications and shall devote time, attention and energies to the
       performance of duties under this contract in accordance with the Texas Fair Defense Act, the
       ABA’s recommended caseload limitations, and pursuant to the provisions of the 106th Judicial
        District’s Local Plan to Implement the Texas Fair Defense Act, including but not limited to the
        qualifications set out in the Application/Affidavit for the 106th Judicial District Court Attorney
        Appointment List.
This language meets the requirement of 1 TAC § 174.21.
       The monitor asked the contract attorney for the total number of cases to which he had been
appointed in FY2012. The contract attorney reported that he had been appointed to 254 felony cases
and two appeals cases across the four counties involved in the contract. In the monitor’s visit with the
contract attorney, the attorney noted that the contract represents about 60% of his total work. Based on
the recommended caseload limitations set in the contract, if the contract attorney did no extra work
outside of the contract, the attorney would be limited to 150 felony appointments per year. The 254
felony appointments and two appeals appointments are equivalent to 1.77 attorneys working at the
maximum caseload recommendations. If the contract attorney’s assessment that the contract comprises
about 60% of his annual workload is accurate, 2.95 attorneys would be required to handle this annual
workload. This caseload exceeds the limit set by the contract.


39
 The American Bar Association Ten Principles of a Public Defense Delivery System (2002), Principle 5 states: “National
caseload standards should in no event be exceeded”. This quote has a footnote referencing the standards adopted by the
National Advisory Commission on Criminal Justice Standards and Goals (NAC). Principle 5 then says that the concept of
workload is a more accurate measurement.
         In 1973, NAC published maximum standard caseloads for public defenders, which are detailed in the following
table.
                                          Table 6: NAC Caseload Standards
                                Type of Case                    Maximum caseload
                                Felonies                               150
                                Misdemeanors                           400
                                Juvenile                               200
                                Mental Health Act                      200
                                Appeals                                 25
         The NAC caseload standards represent the maximum number of cases for each category that are recommended to
be handled by a single attorney in a twelve month period. Caseloads given for each category represent the recommended
maximum for an attorney handling only cases in that category. For example, on average, an attorney who handles only
felonies should not be assigned more than 150 felony cases annually. When an attorney handles a mixed caseload, the
standard should be applied proportionally. For example, an attorney who is given 120 felonies annually is working at 80
percent of the caseload maximum and could not be assigned more than 80 misdemeanors (or 20% of the misdemeanor
maximum).
         The NAC standards are a good starting point in assessing caseloads but should not be accepted as universal
standards. They may not account for administrative work, travel time, or other professional requirements that reduce the
time an attorney can spend on cases. They also are limited by the differences in work required by cases within a category.
For example a case involving felony homicide may require significantly more work than a burglary case.
                                                                                                                       27
 Recommendation 8: The parties to the contract for felony defense services must follow the terms
 of the contract according to the contract’s caseload limitations. Excessive caseloads could
 compromise the quality of representation provided for indigent clients.


Standards of Representation
        The contract requires the attorney to devote time, attention, and energies to the performance of
duties under the contract. The contract states:
        ATTORNEY shall meet qualifications and shall devote time, attention and energies to the
        performance of duties under this contract in accordance with the Texas Fair Defense Act,
        the ABA’s recommended caseload limitations, and pursuant to the provisions of the 106th
        Judicial District’s Local Plan to Implement the Texas Fair Defense Act, including but not
        limited to the qualifications set out in the Application/Affidavit for the 106th Judicial District
        Court Attorney Appointment List.
This language meets the requirement of 1 TAC § 174.22.
Conflicts of Interest
        The contract requires the attorney to notify the court and to file a motion to withdraw if the
attorney has a conflict in representing the defendant. The contract states:
        ATTORNEY will notify the office of DISTRICT JUDGE as soon as ATTORNEY is aware of
        ethical conflicts between indigent defendants and will file a Motion to Withdraw and be
        responsible to set the case for a hearing regarding the ethical conflict for consideration if
        deemed necessary by the Court.
This language meets the requirement of 1 TAC § 174.23.
       In the monitor’s review of case files, the monitor examined several instances where the contract
attorney withdrew because of a conflict of interest.
 Commendation: The contract defender appeared to follow the requirements of the contract by filing
 a motion to withdraw whenever a conflict of interest arose.

Investigation and Experts
       The contract states that investigative or expert witness expenses can be incurred and
reimbursed if prior approval is obtained. The expenses can be incurred and reimbursed without prior
approval, but only if the expenses are necessarily and reasonably incurred. The contract states the
following:
       ATTORNEY will obtain prior approval of expenses for investigation and for experts by filing a
       motion in the 106th Judicial District Court, stating the need for such assistance and the
       estimated expense. Investigative or expert expenses incurred with prior court approval shall be
       reimbursed as provided in the order granting approval. Investigative or expert expenses
       incurred without prior approval shall be reimbursed only if necessarily and reasonably
       incurred. ATTORNEY will arrange for interpreters when the need exists. Expenses for
       interpreters shall be paid by COUNTY after approval by DISTRICT JUDGE.
This language meets the requirement of 1 TAC § 174.24.




                                                                                                       28
Compensation and Payment Processes
        The contract sets annual amounts for the contract, itemized by county, to be paid on a monthly
basis. Under the contract, the attorney is required to represent all defendants assigned during the term
of the contract until the cases are disposed. The contract states the following:
        The parties agree that if this contract covered the legal representation for indigent criminal
        defendants in all four counties of the 106th Judicial District, the total consideration for legal
        representation at the trial court level would be $66,000 for the calendar year 2013.
       The consideration for legal representation at the trial court level under this contract between
       COUNTY and ATTORNEY is COUNTY’s pro rata portion of $66,000.00, payable in monthly
       installments, based on indigent defense provided under the 2011 Contract for Indigent Defense
       in each of the four counties of the 106th Judicial District. COUNTY agrees to pay ATTORNEY
       for services at the trial court level a monthly amount for COUNTY’s pro rata share as follows:

       Dawson County          $ 21,997.80 annually           $ 1,833.15 monthly
       Gaines County          $ 29,554.80 annually           $ 2,462.90 monthly
       Garza County           $ 10,177.20 annually           $ 848.10 monthly
       Lynn County            $ 4,270.20 annually            $ 355.85 monthly
       The above amount is the total consideration to be paid by COUNTY for legal representation of
       indigent criminal defendants at the trial court level for all cases opened during the term of this
       contract, and ATTORNEY shall furnish at his own cost all equipment, travel, office space,
       office supplies, secretaries, salaries of any kind, and any and all other trial court expenses
       except as provided otherwise in this contract.
       In consideration for ATTORNEY’s appellate representation of COUNTY’s indigent criminal
       defendants under this contract, COUNTY agrees to pay additional ATTORNEY’s fees for legal
       services at the rate accepted in this area for such services and approved by DISTRICT JUDGE.
       If ATTORNEY is required to travel to the appellate court for representation under this
       contract, COUNTY agrees to pay ATTORNEY’s actual expenses for lodging and mileage at the
       prevailing state rate after approval by DISTRICT JUDGE.
       COUNTY shall not be obligated for any other additional amount or expenses unless
       specifically designated in this agreement or required by law, detailed in the Request to Pay
       Counsel, and approved by DISTRICT JUDGE.
This language meets the requirement of 1 TAC § 174.25.
        This subsection of the Texas Administrative Code (1 TAC § 174.25) requires the following:
        The contract shall state that the contractor shall be required to submit an itemized fee voucher.
        The voucher must be approved by a member of the appointing authority prior to being
        forwarded to the county financial officer for approval and payment.
Article 26.05(c) of the Code of Criminal Procedure contains this same requirement:
        No payment shall be made under this article until the form for itemizing the services performed
        is submitted to the judge presiding over the proceedings or, if the county operates a managed
        assigned counsel program under Article 26.047, to the director of the program, and until the
        judge or director, as applicable, approves the payment. If the judge or director disapproves the
        requested amount of payment, the judge or director shall make written findings stating the


                                                                                                       29
       amount of payment that the judge or director approves and each reason for approving an
       amount different from the requested amount.
       According to an interview with the Gaines County Auditor, the auditor did not receive monthly
itemized fee vouchers from the contract defender. It did not appear that local procedures required the
itemized fee voucher to be submitted prior to issuing payment to the contractor.

  Recommendation 9: The County must ensure that procedures are in place to meet the
  requirements of 1 TAC § 174.25 and Article 26.05(c) so that itemized fee vouchers are submitted
  and approved by the appointing authority prior to payment by the financial officer.

  Commendation: The contract for felony defense services meets all of the Commission’s
  requirements set in 1 TAC §§ 174.10 - 174.25.



Misdemeanors:
       Appointments of counsel in misdemeanor cases are made to a regional public defender office
based at Texas Tech University. If a conflict of interest exists in representing a misdemeanor
defendant, alternative counsel is appointed from the misdemeanor appointment list.
       The public defender office was created pursuant to Article 26.044 of the Code of Criminal
Procedure. Under Article 26.044(c-1), a public defender office operated by a governmental entity must
include a written plan (see Appendix E) that contains:
       (1) a budget for the public defender‘s office, including salaries;
       (2) a description of each personnel position, including the chief public defender position;
       (3) the maximum allowable caseloads for each attorney employed by the public defender‘s
       office;
       (4) provisions for personnel training;
       (5) a description of anticipated overhead costs for the public defender‘s office;
       (6) policies regarding the use of licensed investigators and expert witnesses by the public
       defender‘s office; and
       (7) a policy to ensure that the chief public defender and other attorneys employed by the public
       defender's office do not provide representation to a defendant if doing so would create a
       conflict of interest that has not been waived by the client.




                                                                                                    30
Comparison of the Public Defender’s Written Procedures with Article 26.044
Budget
       The public defender budget for FY2013 was listed as $472,000. Of this total, the amount
dedicated to salaries was $252,995.76. See below for a breakdown between the state portion of the
budget and the counties’ portion. For FY2013, the state pays 80% of total costs and the counties pay
20%.
       Direct Costs                   $ 383,000
       Indirect Costs                 $ 15,000
       Total Contract                 $ 398,000
       County pays 20%                $ 79,600
       TIDC:
       FY2012 Carry-over              $ 30,000
       TIDC FY2013 contrib.           $ 288,400
       TIDC pays 80%                  $ 318,400
       Tech’s Carry-over              $ 74,000
       Total Budget FY2013            $ 383,000
       Indirect Costs                 $ 15,000
       Budget FY2013                  $ 472,000

Description of Personnel Positions
        The public defender office manual includes positions for a chief defender, a first assistant
defender, an assistant defender, a chief investigator, and an administrative assistant. Each of these
positions is described in the manual. As of April 2013, the office staff only contained three persons (a
chief defender, an assistant defender, and an administrative assistant).
Maximum Allowable Caseloads for Each Attorney
       The public defender office references the same NAC caseload standards used for the contract
defender (although this is referenced in different words):
       Office Caseload standards (Developed through reference to other case management standards used
       by public defender and legal aid offices, including the National Legal Aid and Defender
       Association {NLADA}. These standards may be reevaluated later based upon actual experience by
       the Caprock Regional Public Defender Office.)
The contract further disallows defenders from engaging in the private practice of criminal law. In fact,
special approval must be obtained before any outside employment or self-employment can be undertaken.
The caseloads for each attorney are set below.
       Chief Public Defender Caseload
       Initially, with one attorney handling just misdemeanors and juveniles, considering the statewide
       average of 35% appointments for cases added and the region’s four year average of 1261
       misdemeanors and 38 juveniles added each year, should juvenile appointments rise to 200% of
       juvenile cases added (76 cases), this would allow the Chief Public Defender to handle a total of 248
       misdemeanor cases. At the statewide 35% appointment rate (441 misdemeanors), this would result
       in 193 defendants that would have to receive appointment of counsel from the traditional
       appointment wheel until the Assistant Public Defender is hired in April, 2011. However, timing
       should bring the Assistant Public Defender onboard at about the right time to lessen the effect of
                                                                                                        31
       the Chief Public Defender reaching his maximum caseload. Until the Fall, 2011, the Chief Public
       Defender will not have duties associated with instruction or supervision of student attorneys. At
       that time, the Chief Public Defender’s caseload should drop to a total of 56 juvenile cases and 228
       misdemeanors.
        Assistant Public Defender
       As the Assistant Public Defender will be hired in April, 2011, this would open up an additional 400
       misdemeanor appointments, assuming juvenile appointments do not exceed double the 4 year
       average.

        For FY2012, the regional public defender reported receiving: 258 misdemeanor cases; 3 felony
cases; 23 juvenile cases; and 2 appeals cases. During the fiscal year, the chief worked all twelve months of
the year and had teaching duties (limiting his capacity to 85% of national standards), and the first assistant
worked nine months of the year. In other words, the office worked at 54% of its maximum caseload
capacity.

 Commendation: The public defender’s caseload falls within the maximum thresholds set in its
 office manual (and in line with national standards). Keeping caseloads below this cap allows for
 zealous and effective representation of indigent clients.


Training Provisions
       The office manual requires all attorneys to receive at least ten criminal law CLE hours
annually. The manual specifically mentions that the office will pay for attorneys to attend approved
seminars. The office uses third-year law students who work under the tutelage of the chief defender.
Both the chief and assistant defenders exceeded the annual criminal CLE hours set in the office
manual.

 Commendation: Both attorneys in the public defender’s office met and exceeded their annual
 criminal law CLE requirements.

Anticipated Overhead Costs
       The budget includes expenses for anticipated overhead costs. See below for an itemization of
these budgeted expenses as well as an inclusion of indirect expenses.
       Research                        $50,000
       Travel                          $12,000
       Materials/Supplies              $8,000
       Telecomm Services               $5,200
       Repairs/Maintenance             $1,500
       Rental                          $38,615.24
       Printing                        $2,000
       Other Expenses                  $1,700
       Dues                            $89
       Other Services                  $2,400
       Food/entertainment              $2,000
       Other Expenses                  $500
       Indirect Costs                  $15,000

                                                                                                           32
Use of Licensed Investigators and Expert Witnesses
        The office manual references the use of a staff investigator. However, no investigator is on
staff. The job description for the chief defender lists one of the duties as, “Seeks from the court any
necessary funding for outside experts and investigation in the preparation of a defense.”
Conflict of Interest Policies
        The office manual includes a section covering conflict of interest checks. The manual states
that a conflict check is to be conducted on each case early in the appointment process. The office
utilizes software that allow for quick and easy conflict checks.

 Commendation: The public defender’s operational manual and proposed budget contain all of the
 elements required by Article 26.044(c-1) of the Code of Criminal Procedure.



Juveniles:
       Appointments of counsel in juvenile cases are made to two attorneys on the juvenile
appointment list. The court coordinator noted that she rotates between the two attorneys in making
appointments. The monitor did not examine how juvenile cases are distributed between these two
attorneys.

Core Requirement 6. Promulgate standard attorney fee schedule and payment
process.
Jurisdiction’s Process
       The monitor’s review of payment processes in Gaines County consisted of an examination of
the contract defender payment processes and the budgetary items of the public defender office. These
items are covered in the review of Core Requirement 5.

Statutory Data Reporting
Local Practices Compared to Statutory Provisions
    The county auditor shall prepare and send to OCA an annual report of legal services provided in
    the county to indigent defendants during the fiscal year and an analysis of the amount expended:
        •   In each district, county, statutory county, and appellate court
        •   In cases for which a private attorney is appointed for an indigent defendant
        •   In cases for which a public defender is appointed for an indigent defendant

        •   In cases for which counsel is appointed for an indigent juvenile
        •   For investigation expenses, expert witnesses expenses, or other litigation expenses.

       According to Section 79.036(e) of the Texas Government Code, the county auditor (or other
person designated by the commissioners’ court) must annually prepare and send indigent defense data
to the Commission. This data is to include the total expenses for cases in which an attorney was
appointed for an indigent defendant or indigent juvenile in each district court, county court, statutory
                                                                                                     33
county court, and appellate court. The data is to be submitted in the form and manner prescribed by the
Commission and is to include an analysis of the amount expended by the county. The auditor’s office
completed the annual indigent defense expense report in a timely manner.

 Commendation: As mandated by Section 79.036 of the Texas Government Code, the Gaines
 County Auditor’s Office completed the annual indigent defense expenditure report.


County Indigent Defense Plans
        The Fair Defense Act (FDA) requires the adoption and publication of written plans for
appointment of counsel in criminal and juvenile cases. It also requires the local administrative judges
and juvenile board chairman to submit these plans to the Commission no later than November 1 of
each odd-numbered year pursuant to Section 79.036, Government Code. This is also a requirement to
be eligible to receive grant funds from the new Commission.

 Commendation: As mandated by Section 79.036 of the Texas Government Code, Gaines County
 completed its indigent defense plans that describe the procedures for appointment of counsel in
 criminal and juvenile cases. All required elements were included in the plans.


Conclusion
        Commission staff appreciated the courtesy and cooperation of Gaines County personnel and
officials in conducting this review. Commission staff is available as a resource for the County as it
implements the processes described in its indigent defense plans and the recommendations in this
report. As mandated by statute, the Commission will continue to monitor the County’s progress in
implementing the changes required by the report’s findings.




                                                                                                    34
Appendix A – District Court Indigent Defense Plan
             Dawson, Gaines, Garza and Lynn District Courts Plan
Preamble
11/17/2009
In accordance with the Texas Fair Defense Act, the 106th Judicial District Court in Dawson, Gaines,
Garza and Lynn Counties adopts the following plan to provide for the appointment of counsel to
represent indigent defendants.
This is a separate plan for the 106th Judicial District Court in Dawson, Gaines, Garza and Lynn
Counties in addition to the plans filed by each of these counties pertaining to the procedures used in the
county courts in those counties.
Prompt Magistration
8/4/2010
Sheriff's Responsibility
The Sheriffs of each of the counties in the 106th Judicial District shall ensure that within 48 hours after
arrest, every arrestee shall be brought before a magistrate for a magistrate to set bail and inform the
accused person of his/her rights, including right to court appointed counsel if indigent.
Magistrate Responsibilities
The designated judge in each of the counties in the 106th Judicial District shall establish a plan to hold
a magistrate’s hearing each day.
At the magistrate’s hearing the responsible judge shall comply with the Texas Fair Defense Act by:
     admonishing the accused of the magistrate and Miranda warnings as provided by law;
     notification of indigent representation rights;
     making of record of the magistrate warnings and right to court appointed counsel for indigent
         accused persons;
     notification of right to counsel and right to court appointed counsel if indigent;
     inquiry as to whether the defendant is requesting court appointed counsel;
     provide defendant with a "Request for Appointment of Counsel and Determination of Indigence"
         and reasonable assistance in completing the form; and immediate referral of applications for
         appointed counsel to the District Judge for appointment of counsel.
The magistrate shall, within 24 hours, transmit the felony defendant’s "Request for Appointment of
Counsel and Determination of Indigence" to the District Judge.
Indigence Determination Standards
8/4/2010
Procedures and Financial Standards for Determining Indigence Status
At the magistrate’s hearing, each defendant shall be provided an opportunity to request court appointed
counsel, if indigent. Each requesting defendant shall complete and file a sworn "Request for
Appointment of Counsel and Determination of Indigence", in a form approved by the District Judge.
The magistrate will ensure that reasonable assistance in completing the necessary forms for requesting
appointment of counsel is provided. If the defendant does not speak and/or understand the English
language or is deaf, the magistrate shall inform the person in a manner consistent with Texas Code of
Criminal Procedure Articles 38.30 and 38.31.


                                                                                                         35
The District Judge shall review the "Request for Appointment of Counsel and Determination of
Indigence" and such other information bearing on the financial status of the defendant and make a
determination of indigence status and appoint counsel where required by law within three working
days after receiving the request for court appointed counsel.
The District Judge shall consider the following standards for determining indigence and such other
reasonable factors as the court finds to have a bearing on the financial inability of a defendant to retain
counsel:
     Defendant’s income from any and all sources;
     Sources of the defendant’s income;
     Assets of the defendant;
     Property owned by the defendant, or in which the defendant has an interest;
     Outstanding obligations of the defendant;
     Necessary expenses of the defendant;
     The number and age of the defendant’s legal dependents;
     Spousal income available to the defendant; and
     Such other reasonable factors as determined by the Judge.
     The Judge shall not consider whether the defendant has posted bail, except to the extent that it
        reflects on the defendant’s financial circumstances.
     Defendants receiving assistance from any of the following sources shall be considered indigent:
     Food stamps;
     Medicaid;
     Temporary assistance for needy families;
     Public housing; or
     Supplemental security income.

Defendants with annual average income meeting the following maximum requirements shall be
considered indigent: up to and including 200% of the Federal poverty guidelines as published in the
Federal Register.

The Judge may also appoint counsel in the interest of justice.

Minimum Attorney Qualifications
11/17/2009
Court appointed counsel shall make every reasonable effort to contact the defendant not later than the
end of the first working day after appointment and to interview the defendant as soon as practicable.
Court appointed counsel shall comply with all laws, rules, procedures, and ethical provisions for
providing reasonable assistance of counsel to the defendant.
Court appointed counsel shall maintain a high standard of ethical conduct and always be completely
candid with the trial court.
Court appointed counsel shall timely inform the defendant of matters relating to the preparation, trial,
and disposition of the case; appellate and writ rights, deadlines, and procedures for proper processing,
and such other matters as necessary to provide reasonable assistance of counsel.



                                                                                                         36
Court appointed counsel shall represent a defendant until the defendant is acquitted, appeals are
exhausted, or the court, after entering a finding of good cause on the record, relieves the attorney
and/or replaces the attorney with other counsel.
Court appointed counsel shall submit a request for payment for services performed, itemizing the dates
services were rendered, a brief description of the services, and the number of hours expended to
perform the services, and except for an attorney serving under an Indigent Defense Contract, no
payment shall be made until such request is submitted.
Court appointed counsel shall meet the following standards, said attorney shall:
Be a member in good standing with the State Bar of Texas;
Professionally perform duties and responsibilities of a licensed attorney for the State of Texas; and
Complete annually such Continuing Legal Education programs as required by the Texas Judicial
Council and requirements of the 106th Judicial District for attorneys representing indigent accused
persons, which shall include at least ten (10) hours of Continuing Legal Education in handling criminal
cases.
The District Judge may replace an attorney if the appointed attorney does not make an effort to contact
the defendant by the end of the first working day or does not interview the defendant as soon as
possible, or may sanction said attorney for violation of those provisions. At any time, at the judge’s
discretion, the District Judge may replace an appointed attorney for incompetency or in the interest of
justice.
The District Judge may remove an attorney from consideration for appointments if the attorney
intentionally or repeatedly does not fulfill the duties required by law, rules, local rules, or provisions
for providing reasonable assistance of counsel or complying with the requirements for inclusion on the
approved list for counsel for indigent accused persons.
The District Judge shall annually review and reform the list of eligible court appointed counsel and
cause the list to be posted and made available to the public upon request.
Prompt Appointment of Counsel
11/17/2009
Counsel shall be appointed as soon as possible to indigent defendants, but no later than the end of the
third working day after the date on which the appointing authority receives the defendant’s request for
court appointed counsel. Working day means Monday through Friday, excluding official holidays.
Counsel must be appointed whether or not a case has been filed in the trial court.

Attorney Selection Process
11/17/2009
The District Judge shall prepare and distribute an "Application/Affidavit" to licensed attorneys
practicing in the district who have indicated a desire to be considered for appointment as counsel to
indigent accused persons.
Each attorney requesting such appointments shall complete and return the "Application/Affidavit" to
the 106th Judicial District Court, P.O. Box 1268, Lamesa, Texas 79331.
The Judge shall approve and post a list of the names of attorneys approved to represent indigent
accused persons in the 106th Judicial District Court.

                                                                                                        37
Non-Capital Felony Appointment Procedures and Rules
The District Judge, upon any finding of indigence and request for court appointed counsel, shall sign
an "Order Appointing Attorney" and file same with the District Clerk. The staff of the District Judge
shall immediately deliver a copy of the "Order Appointing Attorney," by fax, mail, or in person, to the
attorney, the defendant, and the District Attorney.
Capital Felony Appointment Procedures and Rules
The District Judge, upon any finding of indigence and request for court appointed counsel, shall sign
an "Order Appointing Attorney" from the approved counsel for capital trials list in accordance with
Art. 26.052 of the Code of Criminal Procedures, and file same with the District Clerk. The staff of the
District Judge shall immediately deliver a copy of the "Order Appointing Attorney," by fax, mail, or in
person, to the attorney, the defendant, and the District Attorney.
Alternative Appointment Program
Due to the rural nature of the counties in the 106th Judicial District, the limited number of attorneys
available for indigent appointments, and the necessity for appointing attorneys from other counties, the
Court shall use an Alternative Appointment Program, as allowed by the Texas Fair Defense Act,
structured to allocate appointments among competent independent legal counsel, one or more of whom
may be under a contract defender program.
The Court shall maintain a list of attorneys who have specifically requested to be placed on the
appointment list, have completed the "Application/Affidavit", and have demonstrated that they meet
the requirement for appointments. Attorneys on the list shall be evaluated periodically to assess the
quality of legal representation provided to defendants.
The Commissioners Courts of Dawson, Gaines, Garza and Lynn Counties may enter into a contract
defender program for the provision of legal services to indigent defendants. Any such indigent defense
contract shall be designed to ensure quality legal representation and shall provide for counsel to have
access to all the resources necessary to properly defend his client and further provide for the continuity
of the defender’s services beyond the contract period to ensure the continuity of representation.
Annually, the District Judge will notify each attorney on the appointment list of the requirements to be
considered for contracting with the counties and setting a deadline for submission of a proposal. Once
all proposals have been received, the District Judge will decide who will be recommended to the
Commissioners Courts. The counties cannot contract with any attorney for appointments in the District
Court if not approved by the District Judge for such contract.
If the contracting attorney has a conflict with the representation of a particular defendant, or when
otherwise necessary to guarantee the integrity of the relationship between the attorney and client, the
appointment shall be made reasonably and impartially from among other qualified attorneys on the
appointment list. Among the factors to consider for such appointments will be the attorneys who come
closest to meeting the qualifications for that particular case, the distance required to be traveled by the
attorney to represent that defendant, any other defendants the attorney may represent in that county to
provide efficiency in travel requirements, and whether the defendant has any language limitations to be
considered to allow effective communications with the attorney.
Fee and Expense Payment Process
11/17/2009
Court appointed counsel shall receive such reasonable compensation as established by a fee schedule
filed with the Commissioners Courts of Dawson, Gaines, Garza and Lynn Counties. The fee schedule
shall comply with the Texas Code of Criminal Procedure Article 26.05 and all applicable law.
                                                                                                   38
If the presiding judge disapproves the requested amount, the Judge shall make written findings stating
the amount of payment approved and the reason for approving an amount different from the requested
amount. The attorney whose request for payment has been disapproved may, by written motion, file an
appeal with the Presiding Judge of the Administrative Region.
Appointment of Investigators and Experts for Indigent Defense and Procedure for Expenses
Counsel appointed in a non-capital case shall be reimbursed for reasonable and necessary expenses,
including expenses for investigation and for mental health and other experts. Expenses incurred with
and without prior court approval shall be reimbursed, according to the procedures set forth below.
When possible, prior court approval should be obtained before incurring expenses for investigation and
for mental health and other experts.
Procedure With Prior Court Approval:
Appointed counsel may file with the trial court a pretrial ex parte confidential request for advance
payment of investigative and expert expenses. The request for expenses must state, as applicable:
     The type of investigation to be conducted or the type of expert to be retained;
     specific facts that suggest the investigation will result in admissible evidence or that the services
         of an expert are reasonably necessary to assist in the preparation of a potential defense; and
     an itemized list of anticipated expenses for each investigation or each expert.
     The court shall grant the request for advance payment of expenses in whole or in part if the
         request is reasonable. If the court denies in whole or in part the request for expenses, the court
         shall:
     state the reasons for the denial in writing;
     attach the denial to the confidential request; and
     submit the request and denial as a sealed exhibit to the record.
Procedure Without Prior Court Approval:
Appointed counsel may incur investigative or expert expenses without prior approval of the court. On
presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the
expenses, if the expenses are reasonably necessary and reasonably incurred. Unreasonable or
unnecessary expenses will not be approved.

Plan Documents
Dawson Gaines Garza Lynn District Court Affidavit of Indigence.wpd (11/17/2009 11:17:10 AM) view
Dawson Gaines Garza Lynn District Court Annual Attorney Update Letter.wpd (11/17/2009 11:25:47 AM) view
Dawson Gaines Garza Lynn District Court Attorney Application for Appointment.wpd (11/17/2009 12:03:17
PM) view
Dawson Gaines Garza Lynn District Court Attorney Fee Schedule.wpd (11/17/2009 11:20:10 AM) view
Dawson Gaines Garza Lynn District Court Attorney Fee Voucher.wpd (11/17/2009 11:10:52 AM) view
Dawson Gaines Garza Lynn District Court Magistrates Warning Form.wpd (11/17/2009 11:10:14 AM) view
Dawson Gaines Garza Lynn District Court Order to Pay Court Appointed Counsel.wpd (11/17/2009 11:28:37
AM) view




                                                                                                        39
JANA FURLOW, COURT ADMINISTRATOR                                                                           PHONE: 806/872-3740
ROSA OLVERA, COURT COORDINATOR                                                                             FAX: 806/872-7810
MILLIE COHORN, COURT SECRETARY                                                                             Physical Address:
                                                                                                           400 SOUTH 1ST, SUITE 301
J'LYN SAUSEDA, COURT REPORTER                                                                              Mailing Address:
                                                                                                           P.O. BOX 1268
                                                                                                           LAMESA, TEXAS 79331
                                                             th
                                                  106 Judicial                                             email: djudge@windstream.net




                                               District
                                                      CARTER T. SCHILDKNECHT
                                                      DISTRICT JUDGE

           October 1, 20xx


Attorney at Law


Re:        Annual Update of Appointment List

Dear :

Pursuant to the Indigent Defense Plan in the 106th Judicial District, please find enclosed an Application/Affidavit which we ask that
you complete with updated information and return to us at the above address if you want to remain on the appointment list for the
year 20xx. We update attorney information annually in order to maintain current records on attorneys desiring appointments in the
106th Judicial District.

(Note: If you have proof of your having completed required continuing education, and no other information has changed, you may
submit your continuing education verification with a cover letter stating no other information has changed and that you wish to
remain on the appointment list in this court in lieu of completing the application in its entirety.)

Also enclosed is a Request to Pay Counsel which you should utilize when submitting a request for payment for services as an
appointed attorney. The fee schedule as set out by Commissioners Courts in the 106th district follows.

Flat Rates:
Felony cases resulting in a plea of guilt     $300.00
Cases in which a dismissal of the charges is granted are paid at the same rate as a guilty plea, not including cases
which were dismissed pursuant to a plea bargain in a separate case. For example, a dismissal pursuant to §12.45
of the Texas Penal Code would not be eligible for payment; but a dismissal due to the appointed attorney pointing
out a lack of probable cause for arrest would be eligible for payment at the same rate as a guilty plea.




                                                                                                                                          40
         Page Two
         Annual Update of Appointment List



Hourly rates (except capital cases):
Pleas that involve more time than covered by the flat $300 fee, contested cases, appeals and all other
matters will be compensated at a minimum hourly rate of $50.00 per hour and a maximum hourly rate
of $100.00 per hour. The presiding judge shall, within these limits, determine what hourly rate will be
paid for any particular case. The presiding judge may approve different hourly rates during the same
case depending upon the services being performed.

Generally, out of court time will be paid at $50.00 per hour and time spent in court will be
compensated at a rate of $100.00 per hour for services performed.

Payment:
Payment for cases compensated on an hourly basis will be ordered upon approval by the presiding
judge of a request for payment submitted with a Request to Pay Counsel form. The minimum billing
increment shall be no greater than six (6) minutes (.1 hour).

Expenses:
Expenses are to be reimbursed pursuant to the procedures set forth in Texas Code of Criminal
Procedure Art. 26.05. It is highly recommended that attorneys receive advance approval of the
presiding judge for expenses of more than $100.00.

Contract Defender Program:
If you are interested in submitting a proposal for the contract to handle indigent criminal defense for
district court cases in the 106th District, which include Dawson, Gaines, Garza, and Lynn counties,
please notify me as soon as possible, but no later than October 15, 20xx. To those attorneys who
indicate an interest, I will provide terms of a sample contract for consideration in submitting a
proposal. The proposal must be accompanied by the updated information required for the
Application/Affidavit. Deadline for submission of a proposal is November 1, 20xx.

         If you have questions, please do not hesitate to contact us.

                                               Sincerely,



                                               Carter T. Schildknecht
                                               District Judge

CTS/jf

Enclosures
Appendix B – County Court Indigent Defense Plan
                                Gaines County Courts Plan
                                       Prompt Magistration
                                                8/9/2010
 A. Arresting Officer Responsibilities
           i. The arresting officer, or the person having custody of the arrestee, shall ensure that every
                arrestee shall be brought before a magistrate without unnecessary delay, but not later
                than 48 hours after the person is arrested.
           ii. Unless arrested pursuant to an arrest warrant, bench warrant, capias, or other order of a
                magistrate or judge, necessary forms establishing probable cause must be completed
                and filed at the time an arrestee is booked into jail for any felony or misdemeanor
                punishable by incarceration.
           iii. Release of defendants arrested without warrant
                  1. A person arrested for a misdemeanor without a warrant and who is detained in jail
                       must be released not later than the 24th hour after arrest, on a bond in an amount
                       not to exceed $5,000, if a magistrate has not determined that probable cause exists
                       to believe that the person committed the offense.
                  2. A person arrested for a felony without a warrant and who is detained in jail must be
                       released not later than the 48th hour after arrest, on a bond in an amount not to
                       exceed $10,000, if a magistrate has not determined that probable cause exists to
                       believe that the person committed the offense.
                  3. If requested by the state, a magistrate may postpone the release of the defendant for
                       not more than 72 hours after the defendant's arrest if a probable cause
                       determination has not been made, in compliance with the procedure set forth in
                       Article 17.033, Texas Code of Criminal Procedure.
 B. Magistrate Duties
           i. At the Magistrate’s hearing, the magistrate should determine if accused can speak and
                understand English, or if the defendant is deaf.
          ii. After making such determination, the magistrate shall, in an appropriate manner
                consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31, do the
                following:
                  1. Advise the accused of the accusation against him/her and any affidavit filed
                       therewith;
                  2. Admonish the accused of:
                           a. The right to retain counsel;
                           b. The right to remain silent;

                                                                                                       42
                 c. The right to have an attorney present during any interview with peace
                      officers or attorneys representing the state;
                 d. The right to terminate an interview at any time;
                 e. The right not to make a statement and that any statement made by the
                      accused may be used against him/her; and
                 f. The right to an examining trial.
        3. Inform the accused of the right to appointed counsel if the person cannot afford
             counsel and the procedures for requesting appointment of counsel.
        4. Inquire as to whether accused is requesting that counsel be appointed.
        5. Provide accused persons requesting appointed counsel with necessary forms for
             requesting appointment of counsel and ensure that reasonable assistance in
             completing required forms is provided to the accused at the time of the
             magistrate’s hearing.
        6. If the magistrate has reason to believe the accused is not mentally competent, the
             magistrate shall enter a request for counsel on behalf of the accused. Such a
             request will alert the appointing authority that counsel competent to represent
             mentally ill persons should be appointed.
iii. In cases where the individual was arrested without an arrest warrant, bench warrant,
      capias, or other order of magistrate or judge, the magistrate shall determine if there is
      probable cause to believe the person committed the offense.
        1. If probable cause has not been determined by a magistrate:
                 a. A person arrested for a misdemeanor must be released on bond, in an
                      amount not to exceed $5,000, not later than 24 hours after the person's
                      arrest.
                 b. A person arrested for a felony must be released on bond, in an amount not to
                      exceed $10,000, not later than 48 hours after the person’s arrest.
                 c. If requested by the state, the magistrate may postpone the release of the
                      defendant for not more than 72 hours after the defendant's arrest, in
                      compliance with the procedure set forth in Article 17.033, Texas Code of
                      Criminal Procedure.
iv. The magistrate shall set the amount of bail and any conditions of bond for the accused, if
      bail is allowed by law and has not been set by the court or magistrate issuing a warrant.
v. The magistrate shall record the following:
        1. The date and time the accused was arrested and the date and time when he/she was
             brought before the magistrate.


                                                                                             43
                 2. Whether the magistrate informed the accused of the right to request appointment of
                     counsel and asked the accused whether he/she wants to request counsel.
                 3. Whether the accused requested appointment of counsel
         vi. If the magistrate is not authorized to appoint counsel and if the accused requests
              appointment of counsel, the magistrate shall transmit or cause to be transmitted the
              magistrate form and any other forms requesting appointment of counsel to the
              appointing authority. The forms requesting appointment of counsel shall be transmitted
              without unnecessary delay, but not later than 24 hours after the person arrested requests
              appointment of counsel.
         vii. If the magistrate is authorized to appoint counsel, the magistrate shall make a
              determination of indigence and appoint counsel if the defendant is indigent within three
              working days unless the County has a U.S. Census population over 250,000, in which
              case counsel shall be appointed within one working day.
         viii. If a request for counsel was made at magistration, the appointing authority shall
              forward the magistrate form and any other forms requesting appointment of counsel to
              the appropriate clerk to be put into the case file.
         ix. If a request for counsel was not made at magistration, the magistrate will forward the
              magistrate form to the clerk to be put into the case file.
                            Indigence Determination Standards
                                               8/9/2010
A. Definitions, as used in this rule:
         i. “Indigent” means a person who is not financially able to employ counsel.
         ii. “Net household income” means all income of the accused and spousal income actually
               available to the accused. Such income shall include: take-home wages and salary (gross
               income earned minus those deductions required by law or as a condition of
               employment); net self-employment income (gross income minus business expenses, and
               those deductions required by law or as a condition of operating the business); regular
               payments from a governmental income maintenance program, alimony, child support,
               public or private pensions, or annuities; and income from dividends, interest, rents,
               royalties, or periodic receipts from estates or trusts. Seasonal or temporary income shall
               be considered on an annualized basis, averaged together with periods in which the
               accused has no income or lesser income.
         iii. “Non-exempt assets and property” means cash on hand, stocks and bonds, and accounts
               at financial institutions.
         iv. “Household” means all individuals who are actually dependent on the accused for
               financial support.
                                                                                                      44
          v. “The cost of obtaining competent private legal representation” includes the reasonable
               cost of support services such as investigators and expert witnesses as necessary and
               appropriate given the nature of the case.
B. Eligibility for Appointment
          i. An accused is presumed indigent if at the time of requesting appointed counsel, the
               accused or accused’s dependents are eligible to receive food stamps, Medicaid,
               Temporary Assistance for Needy Families, Supplemental Security Income, or public
               housing.
          ii. Defendants with average annual income meeting the following maxium requirements
               shall be considered indigent:
                 1. 1 person $11,225
                 2. 2 persons $15,150
                 3. 3 persons $19,075
                 4. 4 persons $23,000
                 5. Each additional person, add $3,925
          iii. An accused who does not meet any of the standards above shall nevertheless be
               considered indigent if the accused is unable to retain private counsel without substantial
               hardship to the accused or the accused’s dependents.
          v. Factors NOT to be considered in determining indigence:
               1. The accused’s posting of bail or ability to post bail may not be considered in
                   determining whether the accused is indigent.
C. Indigence Proceedings:
          i. The appointing authority can require the accused to respond to questions about the
               accused’s financial status, produce documentation supporting financial information
               provided, and/or order a court official to verify financial information provided.
          ii. Information gathered for determining indigence, both in the affidavit of indigence and
               through oral examination, may not be for any purpose other than:
                 1. Determining if accused is (or is not) indigent; or
                 2. Impeaching direct testimony of accused regarding the accused’s indigence.
          iii. A request by the appointing authority for additional information, documentation, and/or
               verification cannot delay appointment of counsel beyond the timelines specified in Parts
               I and IV of these rules and contained in Code of Criminal Procedure article 1.051.
          iv. An accused determined to be indigent is presumed to remain indigent for the remainder
               of the case unless a material change in the accused’s financial circumstances occurs.
                 1. An accused’s status as indigent or not indigent may be reviewed in a formal hearing
                     at any stage of court proceedings, on a motion for reconsideration by the accused,
                                                                                                      45
                    the accused’s attorney, or the attorney representing the state. The accused’s
                    indigent status will be presumed not to have changed. The presumption can be
                    rebutted in the review proceedings based on the following:
                        a. Evidence of a material change in the accused’s financial circumstances, as a
                            result of which the accused does not meet any of the standards for
                            indigence contained in these rules; or
                        b. Additional information regarding the accused’s financial circumstances that
                            shows that the accused does not meet any of the standards for indigence
                            contained in these rules.
               2. If an accused previously determined to be indigent is subsequently determined not
                    to be indigent, the attorney shall be compensated by the county according to the
                    fee schedule for hours reasonably expended on the case.
         v. If the court determines that a defendant has financial resources that enable him to offset
              in part or in whole the costs of the legal services provided, including any expenses and
              costs, the court shall order the defendant to pay during the pendency of the charges or, if
              convicted, as court costs the amount that it finds the defendant is able to pay.
                             Minimum Attorney Qualifications
                                              6/18/2010
A. The Judge hearing criminal cases shall establish attorney appointment lists for the following
    categories of offenses. Attorneys may apply for and be placed on multiple lists. To be eligible for
    an appointment list, an attorney must meet the following minimum requirements:
         i. Misdemeanor Qualification Requirements:
               1. All attorneys on the appointment list must ensure all information on their
                   application is correct;
               2. An attorney must be a licensed practicing attorney and a member in good standing
                   of the State Bar of Texas;
               3. An attorney shall complete a minimum of _6_ hours of CLE in the area of criminal
                   law and procedure each year. All attorneys on the appointment list must file a
                   certificate with the court administration office each year attesting to completion of
                   the required CLE or submit documentation showing that the attorney is certified
                   as a specialist in criminal law. Continuing legal education activity completed
                   with-in a one year period immediately preceding an attorney’s initial reporting
                   period may be used to meet the educational requirements for the initial year.
                   Continuing legal education activity completed during any reporting period in
                   excess of the minimum of _6_ hours for such period may be applied to the
                   following period’s requirement. The carryover provision applies to one year only;
                                                                                                      46
                 4. An attorney must have a minimum _2_ year(s) experience in criminal law;
                 5. An attorney may not have been the recipient of any public disciplinary action by the
                      State Bar of Texas or any other attorney licensing authority of any state or the
                      United States within the last _5_ year(s);
                 6. An attorney must maintain an office capable of receiving email, fax, and telephone
                      calls;
                 7. An attorney must have the ability to produce typed motions and orders;
                 8. An attorney shall notify the court administration office promptly, in writing, of any
                      matter that would disqualify the attorney by law, regulation, rule or under these
                      guidelines from receiving appointments to represent indigent defendants.
          v. Appeal Qualification Requirements - An attorney must meet at least one of the following
               criteria:
                 1. Be currently board certified in criminal law by the Texas Board of Legal
                      Specialization; or
                 2. Have personally authored and filed at least three criminal appellate briefs or post-
                      conviction writs of habeas corpus; or
                 3. Have submitted an appellate writing sample approved by a majority of the judges;
                      or
                 4. Have worked as a briefing clerk of an appellate court for a period of at least one
                      year.
B. Approval for Appointment Lists
          i. Misdemeanor List – An attorney must be approved by the County Court Judge hearing
               misdemeanor cases.
          C. Removal from Appointment List - The judge will monitor attorney performance on a
               continuing basis to assure the competency of attorneys on the list. An attorney may be
               removed or suspended, as appropriate, from the appointment lists by the County Judge.
D. Reinstatement to Appointment Lists
          i. An attorney who was removed from the appointment list for non-completion of the
               required CLE hours may be immediately reinstated upon providing proof that the
               attorney has completed the required hours so long as the attorney otherwise meets the
               other qualifications under this Plan.
          ii. An attorney who has been removed from the appointment list for any other reason and
               who wishes to be reinstated must apply through the original application process.
E. Duties of Appointed Counsel - Appointed Counsel shall:
          i. Notify the court within 72 hours of the receipt of appointment;
          ii. Make every reasonable effort to:
                                                                                                      47
                1. Contact the defendant by the end of the first working day after the date on which
                     the attorney is appointed; and
                2. Interview the defendant as soon as practicable after the attorney is appointed;
         iii. Represent the defendant until:
                1. Charges are dismissed;
                2. The defendant is acquitted;
                3. Appeals are exhausted; or
                4. The attorney is relieved of his duties by the court or replaced by other counsel after
                     a finding of good cause entered on the record.
         iv. Investigate, either by self or through an investigator, the facts of the case and be
              prepared to present any factual defense(s) that may be reasonably and arguably
              available to the defendant;
         v. Brief the law of the case and be prepared to present any legal defense(s) that may be
              reasonably and arguably available to the defendant;
         vi. Be prepared to negotiate with the prosecutor for the most favorable resolution of the case
              as can be achieved through a plea agreement;
         vii. Be prepared to try the case to conclusion either with or without a jury;
         viii. Be prepared to file post-trial motions, give notice of appeal and appeal the case
              pursuant to the standards and requirements of the Texas Rules of Appellate Procedure;
         ix. Maintain reasonable communication and contact with the client at all times and keep the
              client informed of the status of the case; and
         x. Advise the client on all matters involving the case and such collateral matters as may
              reasonably be required to aid the client is making appropriate decisions about the case;
              and
         xi. Perform the attorney’s duty owed to the defendant in accordance with these procedures,
              the requirements of the Code of Criminal Procedure, and applicable rules of ethics.
         xii. Manage attorney’s workload to allow for the provision of quality representation and the
              execution of the responsibilities listed in these rules in every case.
                             Prompt Appointment of Counsel
                                              6/18/2010
A. Prompt Appointment of Counsel
        i. Counsel shall be appointed as soon as possible to indigent defendants, but no later than
            the end of the third working day after the date on which the appointing authority
            receives the defendant’s request for court appointed counsel. Working day means
            Monday through Friday, excluding official state holidays. Counsel must be appointed
            whether or not a case has been filed in the trial court.
                                                                                                      48
         ii. If the defendant is released from custody prior to the appointment of counsel,
               appointment of counsel is not required until the defendant’s first court appearance or
               when adversarial judicial proceedings are initiated, whichever comes first.
         iii. Appointment Authority
                 1. If no case has been filed in the trial court, the appointing authority for
                      misdemeanors is: __County Judge__
                  2. If the case has been filed in the trial court, the appointing authority is: __County
                       Judge___.
B. Defendants Appearing Without Counsel - If a defendant appears without counsel in any adversary
    judicial proceeding that may result in punishment by confinement:
          i. The court may not direct or encourage the defendant to communicate with the attorney
                representing the state until the court advises the defendant of the right to counsel and
                the procedure for requesting appointed counsel and the defendant has been given a
                reasonable opportunity to request appointed counsel.
          ii. If the defendant has requested appointed counsel, the court may not direct or encourage
                the defendant to communicate with the attorney representing the state unless the
                appointing authority has denied the request and, subsequent to the denial, the defendant:
                  1. Has been given a reasonable opportunity to retain and has failed to retain appointed
                       counsel; or
                  2. Waived or has waived the opportunity to retain private counsel.
          iii. The attorney representing the state may not:
                  1. Initiate or encourage an attempt to obtain from the defendant a waiver of the right to
                       counsel; or
                  2. Communicate with a defendant who has requested the appointment of counsel,
                       unless the appointing authority has denied the request and subsequent to the
                       denial, the defendant:
                           a. Has been given a reasonable opportunity to retain counsel; or
                           b. Waives or has waived the opportunity to retain private counsel.
C. Waiver of the Right to Counsel
          i. A defendant may voluntarily and intelligently waive the right to counsel.
          ii. A waiver obtained in violation of section IV.B above is presumed invalid.
          iii. If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea
                or proceeding to trial, the court shall advise the defendant of the nature of the charges
                against the defendant and, if the defendant is proceeding to trial, the dangers and
                disadvantages of self-representation. If the court determines that the waiver is
                voluntarily and intelligently waived, the court shall provide the defendant with a
                                                                                                        49
             statement substantially in the following form, which, if signed by the defendant, shall be
             filed with and become part of the record of the proceedings.
                     “I have been advised this ___ day of ____, 2___, by the (name of court) Court of
                     my right to representation by counsel in the case pending against me. I have
                     been further advised that if I am unable to afford counsel, one will be appointed
                     for me free of charge. Understanding my right to have counsel appointed for me
                     free of charge if I am not financially able to employ counsel, I wish to waive
                     that right and request the court to proceed with my case without an attorney
                     being appointed for me. I hereby waive my right to counsel. (signature of
                     defendant)”
         iv. A defendant may withdraw a waiver of the right to counsel at any time but is not entitled
             to repeat a proceeding previously held or waived solely on the grounds of the
             subsequent appointment or retention of counsel. If the defendant withdraws a waiver,
             the trial court, in its discretion, may provide the appointed counsel 10 days to prepare.
                                  Attorney Selection Process
                                              6/18/2010
A. The appointing authority will identify which of the appointment list, discussed in the Section III
    (attorney qualifications), is most appropriate based on the accusations against the defendant and
    will appoint the attorney whose name is first on the list, unless the court makes a finding of good
    cause on the record for appointing an attorney out of order. Good cause may include:
          i. The defendant requesting counsel does not understand English, in which case the judge
               will appoint the lawyer whose name appears next in order and speaks the clients’
               language, if one is available;
          ii. The defendant has an attorney already appointed on a prior pending or concluded matter.
               The same attorney will be appointed to the new matter, unless the attorney is not on the
               list for the type of offense involved in the current case; or
          iii. Other good cause exists for varying from the list.
B. Once appointed, an attorney’s name will be moved to the bottom of the appointment list. 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.
C. Judicial Removal from Case:
          i. The judge presiding over a criminal case may remove appointed counsel upon entering a
               written order showing good cause for such removal, including without limitation, the
               following:
                 1. Counsel’s failure to appear at a court hearing;


                                                                                                     50
               2. Counsel’s failure to comply with the requirements imposed upon counsel by this
                   plan;
               3. Current information about the defendant and the charges against the defendant
                   indicate that another qualified attorney is more appropriate for the defendant under
                   these rules;
               4. Replacement of appointed counsel in a death penalty case is required under Article
                   26.052(e), Texas Code of Criminal Procedure;
               5. The appointed counsel shows good cause for being removed, such as illness,
                   workload or scheduling difficulties;
               6. The defendant requests an attorney, other than trial counsel, for appeal; or
               7. The defendant shows good cause for removal of counsel, including counsel’s
                   persistent or prolonged failure to communicate with the defendant.
         ii. Appointment of Replacement Counsel - Whenever appointed counsel is removed under
              this section, replacement counsel shall immediately be selected and appointed in
              accordance with the procedures described in this plan.
                             Fee and Expense Payment Process
                                              6/18/2010
A. Court appointed counsel shall be compensated for all reasonable and appropriate services rendered
    in representing the accused. Compensation shall be reasonable for time and effort expended and
    will be in accordance with a fee schedule adopted and approved by the County Judge hearing
    misdemeanor criminal cases in the county.
B. Payment Process: No payment of attorney’s fees will be made other than in accordance with the
    rules set forth below.
          i. An appointed attorney shall fill out and submit a fee voucher to the court for services
               rendered.
          ii. The trial judge presiding over the proceedings shall review the request for compensation
               and either approve or disapprove of the amount requested.
                 1. If a judge disapproves a request for compensation, the judge shall make written
                      findings, stating the amount of payment that the judge approves and each reason
                      for approving an amount different from the requested amount.
                 2. An attorney whose request for payment is disapproved or is not otherwise acted on
                      by the 60th day after the date the request for payment is submitted may appeal the
                      disapproval or failure to act by filing a motion with the presiding judge of this
                      administrative judicial region.
C. Payment of Expenses:


                                                                                                     51
           i. Court appointed counsel will be reimbursed for reasonable and necessary expenses
                incurred, including expenses for investigation and for mental health and other experts.
                Expenses incurred with and without prior approval shall be paid according to the
                procedures set forth below. Whenever possible prior court approval should be obtained
                before expenses are incurred.
           ii. Procedure With Prior Court Approval:
                  1. Appointed Counsel may file with the trial court a pretrial ex parte confidential
                      request for advance payment of investigative and expert expenses. The request for
                      expenses must state the below, as applicable:
                          a. The type of investigation to be conducted or the type of expert to be
                               retained;
                          b. Specific facts that suggest the investigation will result in admissible
                               evidence or that the services of an expert are reasonably necessary to assist
                               in the preparation of a potential defense; and
                          c. An itemized list of anticipated expenses for each investigation and/or each
                               expert.
                  2. The court shall grant the request for advance payment of expenses in whole or in
                      part if the request is reasonable. If the court denies in whole or in part the request
                      for expenses, the court shall:
                          a. State the reasons for the denial in writing;
                          b. Attach the denial to the confidential request; and
                          c. Submit the request and denial as a sealed exhibit to the record.
           iii. Procedure Without Prior Court Approval: Appointed counsel may incur investigative or
                expert expenses without prior approval of the court. On presentation of a claim for
                reimbursement, the court shall order reimbursement of counsel for the expenses, if the
                expenses are reasonably necessary and reasonably incurred. Unreasonable or
                unnecessary expenses will not be approved.
                                           Plan Documents
Gaines County Court Affidavit of Indigence.pdf (6/18/2010 4:35:19 PM) view
Gaines County Court Attorney Fee Schedule.pdf (6/18/2010 5:18:44 PM) view
Gaines County Court Attorney Fee Voucher.pdf (6/18/2010 4:39:53 PM) view




                                                                                                         52
Appendix C – Juvenile Indigent Defense Plan
                                Gaines Juvenile Board Plan
                                  Prompt Detention Hearings
                                                6/18/2010
      A. A child taken into custody must either be brought to a juvenile processing office without
          unnecessary delay where they may not be detained for longer than six hours pursuant to
          §52.025, Family Code, or another disposition authorized by §52.02, Family Code, including
          referral to the office designated by the juvenile board as intake for the juvenile court. The
          intake officer shall process the child according the requirement of §53.01, Family Code,
          and shall also inform the child and the child’s parents of the right to appointed counsel if
          they are indigent and provide a form for the purpose of determining eligibility for
          appointment of counsel. If the child is not released by intake, then a Detention Hearing
          shall be held not later than the second working day after the child is taken into custody
          unless the child is detained on a Friday, Saturday or listed holiday in which case the
          detention hearing shall be held on the first working day after the child is taken into custody.
      B. Prior to the detention hearing the court shall inform the parties of the child’s right to counsel
          and to appointed counsel if they are indigent, and of the child’s right to remain silent as to
          the alleged conduct.
      C. The detention hearing may be conducted without the presence of the child’s parent(s) or
          other responsible adult(s), however, in these cases the court must immediately appoint
          counsel or a guardian ad litem to represent the child.
      D. The court shall provide the attorney for the child access to all written matter to be considered
          by the Court in making the detention decision.
                             Indigence Determination Standards
                                                8/9/2010
 A. Definitions, as used in this rule:
          i. “Indigent” means a person who is not financially able to employ counsel.
          ii. “Net household income” in the case of a child is the income of the child’s parents or
               other person determined responsible for the support of the child. Such income shall
               include: take-home wages and salary (gross income earned minus those deductions
               required by law or as a condition of employment); net self-employment income (gross
               income minus business expenses, and those deductions required by law or as a
               condition of operating the business); regular payments from a governmental income
               maintenance program, alimony, child support, public or private pensions, or annuities;
               and income from dividends, interest, rents, royalties, or periodic receipts from estates or
               trusts. Seasonal or temporary income shall be considered on an annualized basis,

                                                                                                       53
             averaged together with periods in which the person determined responsible for the
             support of the child has no income or lesser income.
          iii. “Household” means all individuals who are actually dependent on the child’s parent(s)
                or person(s) deemed responsible for the support of the child, for financial support.
          iv. “The cost of obtaining competent private legal representation” includes the reasonable
                cost of support services such as investigators and expert witnesses as necessary and
                appropriate given the nature of the case.
B. Eligibility for Appointment
         i. All juveniles charged by petition of Delinquent Conduct or Conduct Indicating a Need for
             Supervision shall be presumed to be indigent unless the State should plead and prove
             otherwise, or if any of the following conditions or factors are present:
                1. At the time of requesting appointed counsel, a child is presumed indigent if the
                    child’s parent(s) or other person(s) determined responsible for the support of the
                    child is eligible to receive food stamps, Medicaid, Temporary Assistance for
                    Needy Families, Supplemental Security Income, or public housing.
                2. Defendants with average annual income meeting the following maxium
                    requirements shall be considered indigent:
                1. 1 person $ 11,225
                2. 2 persons $ 15,150
                3. 3 persons $ 19,075
                4. 4 persons $ 23,000
                5. Each additional person, add $ 3,925
         ii. The child who does not meet any of the standards above shall nevertheless be considered
              indigent if the child’s parent(s) or other person(s) responsible for the child is unable to
              retain private counsel without substantial hardship.
         iii. Factors NOT to be considered in determining indigence:
                1. The resources available to friends or relatives of the child, other than the child’s
                    parent(s) or other person(s) deemed responsible for the child, may not be
                    considered in determining whether the child is indigent.
                2. Only the child's parent(s) or other person(s) responsible for the child and the child’s
                    financial circumstances as measured by the financial standards stated in this rule
                    shall be used as the basis for determining indigence.
C. Indigence Proceedings:
         i. The appointing authority can require the child and the child’s parent(s) or other person(s)
              responsible for the child to respond to questions about the child’s household financial


                                                                                                       54
             status, produce documentation supporting financial information provided, and/or order a
             court official to verify financial information provided.
         ii. Information gathered for determining indigence, both in the affidavit of indigence and
              through oral examination, may not be for any purpose other than:
                1. Determining if child is (or is not) indigent; or
                2. Impeaching direct testimony of the child or the child’s parent(s)/person(s)
                     responsible regarding the child’s indigence.
         iii. A request by the appointing authority for additional information, documentation, and/or
              verification cannot delay appointment of counsel beyond the timelines specified in Parts
              I and IV of these rules.
         iv. A child determined to be indigent is presumed to remain indigent for the remainder of
              the case unless a material change in the child’s financial circumstances occurs.
                1. A child’s status as indigent or not indigent may be reviewed in a formal hearing at
                     any stage of a court. The child’s indigent status will be presumed not to have
                     changed. The presumption can be rebutted in the review proceedings based on the
                     following:
                         a. Evidence of a material change in the child’s parent(s)/person(s) responsible
                             and the child’s financial circumstances; or
                         b. Additional information regarding the child’s parent(s)/person(s) responsible
                             and the child’s financial circumstances that shows that they do not meet
                             any of the standards for indigence contained in these rules.
                2. If a child previously determined to be indigent is subsequently determined not to be
                     indigent, the attorney shall be compensated by the county according to the fee
                     schedule for hours reasonably expended on the case.
         v. If the court determines that a child’s parent(s) or other person(s) responsible for the child
              has financial resources that enable him to offset in part or in whole the costs of the legal
              services provided, including any expenses and costs, the court shall order the child’s
              parent(s) or other person(s) responsible for the child to pay during the pendency of the
              charges or, if found to have engaged in delinquent conduct or CINS, as court costs the
              amount that it finds the child’s parent(s) or other person(s) responsible for the child is
              able to pay.
                             Minimum Attorney Qualifications
                                               6/30/2010
A. The Juvenile Board shall establish attorney appointment lists for the following categories of
    offenses. Attorneys may apply for and be placed on multiple lists. To be eligible for an
    appointment list, an attorney must meet the following minimum requirements:
                                                                                                       55
i. General Requirements:
      1. All attorneys on the appointment list must ensure all information on their
          application is correct;
      2. An attorney must be a licensed practicing attorney and a member in good standing
          of the State Bar of Texas;
      3. An attorney shall complete a minimum of _6__ hours of CLE in the area of juvenile
          law and procedure each year. All attorneys on the appointment list must file a
          certificate with the court administration office each year attesting to completion of
          the required CLE or submit documentation showing that the attorney is certified
          as a specialist in juvenile law. Continuing legal education activity completed with-
          in a one year period immediately preceding an attorney’s initial reporting period
          may be used to meet the educational requirements for the initial year. Continuing
          legal education activity completed during any reporting period in excess of the
          minimum of _6__ hours for such period may be applied to the following period’s
          requirement. The carryover provision applies to one year only;
      4. Must be knowledgeable in juvenile law and be aware of collateral consequences of
          a juvenile adjudication and disposition;
      5. May not have been the recipient of any public disciplinary action by the State Bar
          of Texas or any other attorney licensing authority of any state or the United States
          within the last _3__ years;
      6. An attorney must maintain an office capable of receiving email, fax, and telephone
          calls;
      7. An attorney must have the ability to produce typed motions and orders;
      8. An attorney shall notify the Juvenile Board promptly, in writing, of any matter that
          would disqualify the attorney by law, regulation, rule, or under these guidelines
          from receiving appointments to represent indigent defendants.
ii. CINS Charges or Delinquent Conduct, and Commitment to TYC Is Not an Authorized
     Disposition:
      1. Meet the General Requirements;
      2. Must have a minimum _1__ year of work experience in juvenile law;
      3. Must have observed or participated in at least:
              a. _2__ stipulated juvenile adjudications;
              b. _2__ contested juvenile adjudications;
              c. _2__ juvenile dispositions; and
              d. _2__ detention hearings; and
      4. Participated in at least __2_ criminal or juvenile trial.
                                                                                            56
         iii. Delinquent Conduct, and Commitment to TYC Without a Determinate Sentence Is an
              Authorized Disposition:
                1. Meet General Requirements;
                2. Have a minimum _2__ years of work experience in juvenile law;
                3. Participated in _5__ criminal or juvenile cases, of which at least _2__ was tried to a
                    jury verdict; and
         iv. Determinate Sentence Proceedings have been Initiated; or Proceedings for Discretionary
              Transfer to Criminal Court Have Been Initiated:
                1. Meet General Requirements;
                2. Have a minimum _3__ years of work experience in juvenile law;
                3. Participated in _5__ criminal or juvenile cases, of which at least _2__ were tried to
                    a jury verdict;
                 4. Tried at least _2__ criminal or juvenile case as lead counsel.
B. Approval for Appointment Lists - An attorney must be approved by a majority of the Juvenile
    Board for each appointment list for which the attorney applies.
C. Removal from Appointment List - The Juvenile Board will monitor attorney performance on a
    continuing basis to assure the competency of attorneys on the list. An attorney may be removed
    or suspended, as appropriate, from one or more appointment lists by a majority vote of the
    judges.
D. Reinstatement to Appointment Lists
          i. An attorney who was removed from the appointment list for non-completion of the
               required CLE hours may be immediately reinstated upon providing proof that the
               attorney has completed the required hours so long as the attorney otherwise meets the
               other qualifications under this Plan.
          ii. An attorney who has been removed from the appointment list for any other reason and
               who wishes to be reinstated must apply through the original application process.
E. Duties of Appointed Counsel - Appointed Counsel shall:
          i. Notify the court within 72 hours of the receipt of appointment;
          ii. Make every reasonable effort to:
                 1. Contact the child by the end of the first day after the date on which the attorney is
                      appointed; and
                 2. Interview the child as soon as practicable after the attorney is appointed;
          iii. Represent the child until:
                 1. The case is terminated;
                 2. The family retains an attorney;
                 3. The attorney is relieved of his duties by the court or replaced by other counsel.
                                                                                                        57
   iv. Investigate, either by self or through an investigator, the facts of the case and be
        prepared to present any factual defense that may be reasonably and arguably available
        to the child;
   v. Brief the law of the case and be prepared to present any legal defense that may be
        reasonably and arguably available to the child;
   vi. Be prepared to negotiate with the prosecutor for the most favorable solution of the case
        as can be achieved through a plea agreement;
   vii. Be prepared to try the case to conclusion either with or without a jury;
   viii. Be prepared to file post-trial motions, give notice of appeal and appeal the case
        pursuant to the standards and requirements of the Texas Rules of Appellate Procedure;
   ix. Maintain reasonable communication and keep the child informed of the status of the
        case; and
   x. Advise the child on all matters involving the case and such collateral matters as may
        reasonably be required to aid the client is making appropriate decisions about the case.
   xi. Perform the attorney’s duty owed to the child in accordance with these procedures, the
        requirements of the Code of Criminal Procedure and the Family Code, and applicable
        rules of ethics.
   xii. Manage attorney’s workload to allow for the provision of quality representation and the
        execution of the responsibilities listed in these rules in every case.
                        Prompt Appointment of Counsel
                                         6/18/2010
A. Appointment of Counsel for Children in Detention
      i. Prior to the detention hearing the court shall inform the parties of the child’s right to
         counsel and to appointed counsel if they are indigent, and of the child’s right to
         remain silent as to the alleged conduct.
      ii. Prior to the initial detention hearing, the court shall provide the attorney for the child
         with access to all written matter to be considered by the court in making the detention
         decision.
      iii. If there is no parent or other responsible adult present, the court must appoint
         counsel or a guardian ad litem for the child.
      iv. If the juvenile is detained, the child has an immediate right to counsel. If counsel has
         not already been appointed, the court must either appoint counsel or direct the
         juvenile’s parent or other responsible adult to retain an attorney promptly. The court
         may enforce an order to retain counsel by appointing an attorney to represent the child
         and requiring that the child’s parent or other responsible adult reimburse the court for
         attorneys’ fees.
                                                                                                 58
      v. Upon appointment, the court administrator shall notify the appointed attorney by fax,
         e-mail, or personal contact of the appointment and the scheduled hearing time and
         date.
      vi. The appointed attorney shall make every reasonable effort to contact a child in
         detention by the end of the first working day after receiving the notice of appointment
         or to inform the court that the appointment cannot be accepted. Contacting the child in
         detention may be by personal visit (including contact during a detention hearing), by
         phone, or by video teleconference. Contacting the court may be by fax, email, phone
         or personal visit. A court-appointed attorney shall contact the child, in one of the ways
         mentioned above, no less than once every ten working days while the child remains in
         detention.
      vii. An attorney appointed for a detention hearing shall continue to represent the child
         until the case is terminated, the family retains an attorney, or a new attorney is
         appointed by the juvenile court. Release of the child from detention does not
         terminate the attorney’s representation.
      viii. Court-appointed attorneys shall make every effort to comply with the Texas State
         Bar Code of Ethics for communication with a client.
B. Appointment of Counsel for Children not Detained at Intake
      i. If the child is released from detention and if a petition to adjudicate or a motion to
         modify is filed, the juvenile court will use the financial forms gathered at intake to
         make a determination of indigence. If no financial information is available, the
         juvenile court shall promptly summon the child’s parent/guardian/custodian to the
         court so that financial information may be gathered for a determination of indigence.
      ii. If the court makes a finding of indigence, the court shall appoint an attorney on or
         before the fifth working day after:
                a. The date a petition for adjudication or discretionary transfer hearing has been
                    served on the child; or
                b. A motion to modify disposition seeking commitment to TYC or placing in
                    secure correctional facility has been filed.
      iii. If the family does not qualify for appointed counsel or if the parent or guardian is not
         available, and the family fails to provide an attorney, the juvenile court may appoint
         an attorney in any case in which it deems representation necessary to protect the
         interests of the child.
      iv. The prosecuting attorney/court clerk shall notify the juvenile court upon the filing of
         and return of service of a motion to modify or the return of service of a petition for
         adjudication or discretionary transfer.
                                                                                                59
                                   Attorney Selection Process
                                                6/18/2010
A. The appointing authority will identify which of the appointment lists, discussed in the attorney
    qualifications section, is most appropriate based on the accusations against the child and will
    appoint the attorney whose name is first on the list, unless the court makes a finding of good
    cause on the record for appointing an attorney out of order. Good cause may include:
          i. The child requesting counsel does not understand English, in which case the judge will
               appoint the lawyer whose name appears next in order and speaks the clients’ language,
               if one is available;
          ii. The child has an attorney already appointed on a prior pending or concluded matter. The
               same attorney will be appointed to the new matter, unless the attorney is not on the list
               for the type of offense involved in the current case;
          iii. An initial detention hearing is scheduled and the first attorney on the list is unavailable;
               or
          iv. Other good cause exists for varying from the list.
B. Once appointed, an attorney’s name will be moved to the bottom of the appointment list. 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.
C. Judicial Removal from Case:
          i. The judge presiding over a case involving a child may remove appointed counsel upon
               entering a written order showing good cause for such removal, including without
               limitation, the following:
                  1. Counsel’s failure to appear at a court hearing;
                  2. Counsel’s failure to comply with the requirements imposed upon counsel by this
                      plan;
                  3. Current information about the child and the charges against the child indicate that
                      another qualified attorney is more appropriate for the child under these rules;
                  4. The appointed counsel shows good cause for being removed, such as illness,
                      workload or scheduling difficulties;
                  5. The child requests an attorney, other than trial counsel, for appeal; or
                  6. The child shows good cause for removal of counsel, including counsel’s persistent
                      or prolonged failure to communicate with the child.
          ii. Appointment of Replacement Counsel - Whenever appointed counsel is removed under
               this section, replacement counsel shall immediately be selected and appointed in
               accordance with the procedures described in this plan.
                              Fee and Expense Payment Process
                                                                                                         60
                                                6/18/2010
A. Court appointed counsel shall be compensated for all reasonable and appropriate services rendered
    in representing the accused. Compensation shall be reasonable for time and effort expended and
    will be in accordance with a fee schedule adopted and approved by the Juvenile Board.
B. Payment Process - No payment of attorney’s fees will be made other than in accordance with the
    rules set forth below.
          i. An appointed attorney shall fill out and submit a fee voucher to the court for services
               rendered.
          ii. The trial judge presiding over the proceedings shall review the request for compensation
               and either approve or disapprove of the amount requested.
                 1. If a judge disapproves a request for compensation, the judge shall make written
                      findings, stating the amount of payment that the judge approves and each reason
                      for approving an amount different from the requested amount.
                 2. An attorney whose request for payment is disapproved or is not otherwise acted on
                      by the 60th day after the date the request for payment is submitted may appeal the
                      disapproval or failure to act by filing a motion with the presiding judge of this
                      administrative judicial region.
C. Payment of Expenses:
          i. Court appointed counsel will be reimbursed for reasonable and necessary expenses
               incurred, including expenses for investigation and for mental health and other experts.
               Expenses incurred with and without prior approval shall be paid according to the
               procedures set forth below. Whenever possible prior court approval should be obtained
               before expenses are incurred.
          ii. Procedure With Prior Court Approval:
                 1. Appointed Counsel may file with the trial court a pretrial ex parte confidential
                      request for advance payment of investigative and expert expenses. The request for
                      expenses must state the below, as applicable:
                          a. The type of investigation to be conducted or the type of expert to be
                              retained;
                          b. Specific facts that suggest the investigation will result in admissible
                              evidence or that the services of an expert are reasonably necessary to assist
                              in the preparation of a potential defense; and
                          c. An itemized list of anticipated expenses for each investigation and/or each
                              expert.




                                                                                                        61
                  2. The court shall grant the request for advance payment of expenses in whole or in
                      part if the request is reasonable. If the court denies in whole or in part the request
                      for expenses, the court shall:
                          a. State the reasons for the denial in writing;
                          b. Attach the denial to the confidential request; and
                          c. Submit the request and denial as a sealed exhibit to the record.
           iii. Procedure Without Prior Court Approval:
                  1. Appointed counsel may incur investigative or expert expenses without prior
                      approval of the court. On presentation of a claim for reimbursement, the court
                      shall order reimbursement of counsel for the expenses, if the expenses are
                      reasonably necessary and reasonably incurred. Unreasonable or unnecessary
                      expenses will not be approved.
                                           Plan Documents
Gaines Juvenile Board Affidavit of Indigence.pdf (6/18/2010 5:55:57 PM) view
Gaines Juvenile Board Attorney Fee Schedule.pdf (6/18/2010 5:55:26 PM) view
Gaines Juvenile Board Attorney Fee Voucher.pdf (6/18/2010 5:55:03 PM) view




                                                                                                           62
Appendix D – Defender Contract




                                 63
                                           CONTRACT FOR INDIGENT DEFENSE                           RECEIVED
                                                           IN
                                 THE 106TH JUDICIAL DISTRICT COURT OF TEXAS                       DEC 1 2 ?012
                                 DAWSON) GAINES, GARz.AAND LYNN COUNTIES
                                                                                               &IWSQN WUNTY AUDITOR
  1.             INTRODUCTION
                 The county of Dawson ("COUNTY'') and The Law Offices of Arthur Aguilar, Jr.
                 ("ATTORNEY") are the parties to this agreement. The District Judge of the 106th Judicial
                 District ("DISTRICT JUDGE") is the appointing authority approving ATTORNEY to
                 represent indigent criminal defendants in COUNTY. This agreement establishes conditions
                 under which ATTORNEY will provide legal representation for indigent criminal
                 defendants in COUNTY.

  2.             SCOPE OF WORK
                 ATTORNEY will provide legal representation for indigent criminal defendants in
                 COUNTY for felonycases,only. Under this contract, a felony will be considered to be any
                 criminal offens~ that carries a possible punishment of confinement in excess of one year or
                 thatis classified as a State Jail Felony, Third Degree Felony, Second Degree Felony or First
                 Degree. Felony by the Penal Code of Texas. Under this contract, ATTORNEY will
                 represent only those defendants designated by DISTRICT JUDGE, and no file shall be
                 opened or appearance made under this contract except by order of DISTRICT JUDGE.
                 ATTORNJ;:Y shall represent such defendants in the trial court and on direct appeal in any
                 of the appellate courts to which such case is appealed. Post conviction writs are
                 extraordinary and are NOT covered in this contract. Capital Murder Trials where the State
                 elects to pursue the Death Penalty are NOT covered in this contract. This contract does
                 not cover any juvenile or misdemeanor work in the 106th Judicial District. However, if an
                 indigent defendant has a misdemeanor charge as well as a felony charge, ATTORNEY will
                 handle the misdemeaa6f charge-it no extra cost to COUNTY as long as the misdemeanor
                 charge is taken into account in determining sentence for the felony offense as provided in
                 Section 12.45 of the Texas Penal Code. Otherwise, ATTORNEY will consider the
                 indigent defendant to be under this contract for only the felony case. ATTORNEY shall
                 meet qualifications and shall devote time, attention and energies to the performance of
                 duties under this contract in accordance with the Texas Fair Defense Act, the ABA's
                 recommended caseload limitations, and pursuant to the provisions of the 106th Judicial
                 District's Lo.cal Plan to Implement the Texas Fair Defense Act, including but not limited
                 to the qualifications set out in the Application/Affidavit for the 106th Judicial Districr Court
                 Attorney Appoinrment 11t.

   3.            CONTRACT PERIOD                                                         .
                 This agreement shall commence on January 1, 2013 and shall temlinate December 31,
                 2013, unless terminated earlier by either party. The parties shall have an option to renew
                 the contract for additional years, and prior to October 1, 2013, the parties will revisit the
                 contract to consider any desired modifications to the terms and conditions of this contract.
                                                                                                                    J




                                                                                                                        J~
------·-   --~   --~----·   ··----------·-----·--·
                                            ~10




4.   CONSIDERATION
     The parties agree that if this contract covered the legal representation for indigent criminal
     defendants in all four counties of the 106th Judicial District, the total consideration for legal
     representation at the trial court level would be $66,000 for the calendar year 2013.

     The consideration for legal representation at the trial court level under this contract
     between COUNTY and ATTORNEY is COUNTY's pro rata portion of $66,000.00,
     payable in monthly installments, based ·on indigent defense provided under the 2012
     Contract for Indigent Defense in each of the four counties of the 106ch Judicial District.
     COUNTY agrees to pay ATTORNEY for services atthe trial court level a monthly amount
     for COUNTY's pro rata share as follows:                                  ,, , _,L<i,      hfs '(.5
                                                                                                &
                                                                                    f'l'lf?8·        ~" ,;.i~ i'Z-
             Dawson County                   $ 21,997.80 annually            $ l,883.15 monthly 1
             Gaines County                   $ 29,554.80 annually            $ 2,462.90 monthly
             G.=a County                     $ 10,177.20 annually            $ 848.10 monthly
             Lynn County                     $ 4,270.20 annually             $ 355.85 monthly

     The above amount is the total consideration to be paid by COUNTY for legal
     representation of indigent criminal defendants at the trial court level for all cases opened
     during the term of this contract, and ATTORNEY shall furnish at his own cost all
     equipment, travel, office space, office supplies, secretaries, salaries of any kind, and any and
     all other trial court expenses except as provided otherwise in this contract.

     In consideration for A!TORNEY's appellate representation of COUNTY's indigent
     crirninal defendantsunderthis contract, COUNTY agrees to payadditionalATTORNEY's
     fees for legal services at the rate accepted in this area for such services and approved by
     DISTRICT JUDGE. If ATTORNEY is required to travel to the appellate court for
     representation under this contract, COUNTY agrees to pay ATTORNEY's actual expenses
     for lodging and mileage at the prevailing state rate after approval by DISTRICT JUDGE.
                                       ,.                   •
     COUNTY shall nor-DC' obligar~ -for any other additional amount or expenses unless
     specifically designated in this agreement or required by law, detailed in the Request to Pay
     Counsel, and approved by DISTRICT JUDGE.

     If the renewal option is exercised, COUNTY's designated monthly percentage will be
     adjusted to reflect the number of COUNTY's cases disposed under the contract in trial
     court compared to the number of trial court level cases disposed under the contract in the
     entire 106th Judicial District during the previous year.

5.   EXPERTS, INVESTIGATORS, AND INTERPRETERS
     ATTORNEY will obtain prior approval of expenses for investigation and for experts by
     filing a motion in the 106ch Judicial District Court, stating the need fi;lr such assistance and



CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY                                                 PAGE2
                                                                                                         J
      the estimated expense. Investigative or expert expenses incurred with prior court approval .
      shall be reimbursed as provided in the order granting approval. Investigative or expert
      expenses incurred without prior approval shall be reimbursed only if necessarily and
      reasonably incurred. ATIORNEY will arrange for interpreters when the need exists .
                          • shall be paid by COUNTY after approval by DISTRICT JUDGE.
      Expenses for interpreters

6.    CHANGE OF VENUE
      If there is a change of venue which moves a case from the boundaries of the 106th Judicial
      District, then ATIORNEY will be allowed his actual expenses in regard to lodging, meals,
      court fees or costs, copy machine fees, or any other fees approved by DISTRICT JUDGE
      in the original jurisdiction. Any such expenses should be discussed, if at all possible, with
      DISTRICT JUDGE prior to incurring the same. In such cases, any travel (mileage fees)
      outside the 106th Judicial District will be paid at the prevailing state rate. All other fees
      designated herein will be the responsibility of and paid by the County of original
      jurisdiction.

7.    ASSIGNMENT
      ATIORNEY may employ an associate attorney(s) to assist in representing defendants
      under this contract with the prior consent and approval of DISTRICT JUDGE, but only
      at ATIORNEY's sole expense. ATIORNEY shall not assign its entire rights under this
      contract or delegate the entire performance of its duties under this contract.

8.    CONFLICTS
      ATIORNEYwillnotifytheofficeoIDISTRICTJUDGEassoonasATIORNEYisaware
      of ethical conflicts between indigent defendants and will file a Motion to Withdraw and be
      responsible to set the case for a hearing regarding the ethical conflict for consideration if
      deemed necessary by the Court.
                             .,..       .•
                                     ._."<.~   -
                                                                    •
9.    REPORTS
      ATIORNEY shall compile a year-end report giving the number of indigent defendants
      served, the number of individual cases handled, the types of cases, the disposition of the
      cases handled, and any other information required to be in compliance with the Texas Fair
      Defense Act. Such report shall identify the cases by county and shall include cases for the
      other contracting counties in the 106th Judicial District as well as COUNTY's cases. For
      approval and payment, ATIORNEY shall provide itemized interim progress reports to
      COUNTY and DISTRICT JUDGE as requested for indigent defense expenditure reports.

10.   ATIORNEY'S PRIVATE PRACTICE
      It is agreed that ATTORNEY will maintain a private practice as long as there is no conflict
      of interest under the laws of the State and no violation of the' State Bar Rules as
      promulgated by the Supreme Court ofT=s. It is further agreed and understood that
      ATIORNEY's private practice will not interfere in any material manner with the indigent
      criminal defense cases provided for in this contract.
                                                         .   '·.,                                     )




CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY                                              PAGE3




                                                     '



                                                   (,., q I
                                               01 z,



11.   TERMINATION
      If COUNTY wishes to terminate this contract, COUNTY may determine that desire by a
      majority vote of the Commissioners Court of COUNTY. Either party may terminate with
      90 days notice by Certified Mail to the other party. ATIORNEY shall complete all cases
      that are open as of the date of the termination notice unless relieved or replaced by
      DISTRICT JUDGE.

12.   AMENDMENTS
      Any alterations, additions or deletions in the terms and conditions of this contract shall be
      by written amendment approved by DISTRICT JUDGE and executed by ATIORNEY
      and the Commissioners Court of COUNTY.

13.   SEVERABILITY
      If any provision of this contract is construed to be illegal or invalid, such construction will
      not affect the legality or validity of any of its other provisions. The illegal or invalid
      provision will be deemed severable and stricken from the contract as if it had never been
      incorporated herein, but all other provisions will continue.
                   '              .


14.   SURVIVALOFTERMS
      Termination of this contract for any reason shall not release either party from any liabilities
      or obligations set forth in this contract that the parties have expressly agreed in writing shall
      survive any such termination or which by their nature would be intended to be applicable
      following such termination.

15.   INDEPENDENT CONTRACTOR
      It is agreed that ATIORNEY is an independent contractor and that this contract does not
      create an employment relationship between COUNTY and ATIORNEY. ATIORNEY, .
      not COUNTY, will be respons~ble for appropriat~ payment of social security taxes and
      federal income taxes ~pplicabl~~ i;b.e consideration received by ATIORNEY under this
      contract.

      COUNTY shall not be liable or responsible and shall be saved and held harmless by
      ATIORNEY from and against any and all suits, actions, claims or liability of any character
      arising out of the performance of ATIORNEY under this contract, including claims and
      damages arising from acts of negligence or acts of malpractice of ATIORNEY.

16.   NO WAIVER OF SOVEREIGN IMMUNITY
      THE PARTIES EXPRESSLY AGREE THATNO PROVISION OFTIIIS CONTRACT
      ISINANYWAYINTENDEDTOCONSTITUTEAWAlVERBYCOUNTYORTHE
      STATE OF TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY
      THAT COUNTY OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF
      LAW.




CONTRACT FOR IlIDIGENT DEFENSE - DAWSON COUNTY                                                 PAGE4
       17.              GOVERNING LAW AND JURISDICTION
                        This contract shall be construed in accordance with and governed by the laws of the State
                        of T=s, except for its provisions regarding confliets of laws. The venue of any suit
                        brought for any breach of this contract is fixed in any court of competent jurisdiction in
                        Dawson County, T=s. All payments under the contract shall be due and payable at
                        ATTORNEY's office in Lubbock, Texas. This contract represents the entire agreement
                        between the parries. No prior agreement of understanding, oral or otherwise, of the parries
                        or their agents will be valid or enforceable unless embodied in this contract. The County
                        Judge of COUNTY has signed this agreement pursuant to the authority placed in him by
                        the Commissioners Court. Any signatory executing this contract on behalf of either
                        ATTORNEY or COUNTY warrants and guarantees that he has authority to execute this
                        contract on behalf of ATTORNEY or COUNTY and to validly. and legally bind
                        ATTORNEY and COUNTY to the provisions of this contract.

       EXECUTED IN MULTIPLE ORIGINALS ON THE DATES SHOWN.
   .
                    __;\.~'-~\111~/_flJ;,
       .·. ,"',,,\.\\··';~·
                        ,..~         . ·c·(){.;°')'1,.
                             .. · .. -·
                                                                                              COUNTY:
/~~>i~'>~'·~:};~;~;,~~~~i~~
                                                                                                 ~~
~ ~- , •                    I : .\___....-;:-? . . .. ...,..-; - .
-    ~ •                    ! .·.. ~-:-·· / . • .•:i::. =. .·


~· ··t.~:~<,~~'.\                                  ??I                                        Allen Wells, County Judge
 ·, _ AUES'.t:;-
        ·. ~ ~/:·:-;,'                   · ·. •/ · :t
                                               .
                                          ·-,~ ~~--~<'/ ~       ...
                   .... 1     ......   ~···\,\' ~        ....         •       .


             .                         •''.,\.''.,,,·~-·'                     //(
             . · ....... : .TD.XUV ·u..uuJ
                                                                          .

                                                                                                            Date:    Ja;-f/- 12.
                                            •unty Clerk, Dawson County


                                                                                  ~
                                                                                         --
                                                                                      ATTORNEY:
                                                                                         ~


                                                                                        ~-
                                                                                                            ,

                                                                                      Tiffi LAW OFFICES OF ARTHUR AGUILAR, JR.


                                                                                      By:~~
                                                                                      Date:       /   /~ j t7 -       }~

                                                                                       APysf/JTINGA~9fITY~
                                                                                      . ~J. d             uLI-
                                                                                      Carter T. Schildknecht, District Judge

                                                                                      Date:     /V~ 3o .~ 2.fa I Z-        1




       CONTRACT FOR INDIGENT DEFENSE - DAWSON COUNTY                                                                               PAGES




                                                                                              Ir. q-.z.
Appendix E – Regional Public Defender’s Written Procedures and Budget




                                                                        69
                          MODIFICATION OF
      REGIONAL PUBLIC DEFENDER CONTRACT DATED OCTOBER 25, 2010

                                           Between

                               DICK.ENS COUNTY, TEXAS

                                             And

                                TEXAS TECH UNIVERSITY

                                         July_, 2012




                                                              ~ii.SD FOR~
                                                    THI~'!>      DAY OF          , 20~
                                                    Ar9·3Q      O'CLOCK     M.
                                                              WINONA HUMPHREYS
                                                         F COUNTY COUR O    N




MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT                                    Page 1of6
             MODIFICATION OF REGIONAL PUBIC DEFENDER CONTRACT
                           DATED OCTOBER 25, 2010


        DICKENS COUNTY, TEXAS ("COUNTY") and TEXAS TECH UNIVERSITY
("ENTITY") entered into a agreement dated October 25, 2010, under which ENTITY agreed.to
perform legal services for persons accused of crimes in DICKENS COUNTY and other counties
that agree to participate in the Caprock Regional Public Defender Office ("CRPDO") program.

       In the initial agreement, the following counties were authorized to participate in the
CRPDO program with the agreement of DICKENS COUNTY and ENTITY: Armstrong County,
Briscoe County, Collingsworth County, Cottle County, Crosby County, Dickens County, Floyd
County, Foard County, Hall County, Hardeman County, Haskell County, Kent County, King
County, Knox County, Motley County and Stonewall County.

        With the agreement of ENTITY and COUNTY, since October 25, 2010, the following
additional counties have begun participation in the CRPDO program as per the original contract:
Gaines, Swisher, Garza and Dawson and the following counties have failed to enter the program:
Hall, Foard, Crosby and Haskell.

       All previous terms and conditions of the agreement between the parties dated October 25,
2010, are hereby radified and continued in full force and effect if not expressly modified by this
agreement. The grant provider to the COUNTY suggested the third year budget be approved by
the COUNTY for all participating counties in the CRPDO program as the amounts are different
than those originally anticipated. Attached hereto marked Exhibit A is the proposed budget for
the CRPDO program for the third year of operation, October 1, 2012 through September 30,
2013. The COUNTY and the ENTITY hereby agree to this third year budget evidenced by their
signatures below, acknowledging that all other terms of the orginal contract will remain the same
unless herein modified. Further, the COUNTY and the ENTITY acknowledge and agree:

      That the participating counties have not fully utilized the CRPDO as was anticipated on
the CRPDO's inception;

       That additional time is necessary for the CRPDO to build its client base and gain the
confidence of the participating counties;

          That as a show of good faith the ENTITY agrees to reduce the contract amount for year
 three;

         That the COUNTY and the ENTITY agree for the third year of the CRPDO's operation
 only, the COUNTY is not responsible for the original contract amount of FOUR HUNDRED
 FORTY THOUSAND ($440,000.00) Dollars, but the total of THREE ffiJNDRED NINETY-
 EIGHT THOUSAND AND NO/I 00 ($398,000.00) Dollars;

       That this $398,000.00 represents direct costs for contract services to be paid to ENTITY
 of THREE HUNDRED EIGHTY-THREE THOUSAND AND N0/100 ($383,000.00) Dollars,

 MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT                                     Page 2of6
and indirect costs of FIFTEEN THOUSAND AND NOil 00 ($15,000.00) Dollars to be retained
by Dickens County for administrative costs;

       That ENTITY will establish it's budget for the third year of the CRPDO for the direct
costs of contract services of $383,000.00 to be paid to ENTITY by COUNTY plus
approximately SEVENTY-FOUR THOUSAND AND NO/I 00 ($74,000.00) Dollars being the
estimated carry-over belonging to ENTITY by virtue of the second year of operation - the exact
amount of the carry-over cannot be calculated until the end of September, 2012;

       That the amount of the contract and other terms of the original contract for year four and
beyond will remain at the original FOUR HUNDRED FORTY THOUSAND ($440,000.00)
unless by agreement the amount is raised or lowed or other modifications are made in writing;

       That beginning in year three the COUNTY has previously agreed to pay 20% of the
contract amount, which for year three will be SEVENTY-NINE THOUSAND SIX HUNDRED
AND N0/100 ($79,600.00) Dollars (20% of $398,000.00), with the 80% balance of the contract
($318,400.00) to be provided by the grant provider using the anticipated carry-over from year
two of approximately THIRTY THOUSAND AND N0/100 ($30,000.00) Dollars and a new
grant of TWO IDJNDRED EIGHTY-EIGHT THOUSAND FOUR HUNDRED ($288,400.00)
Dollars;

       That any amounts of the third year contract of $398,000.000 remaining on hand at the
end of September, 2013, shall be divided pursuant to the Carry-Over provisions of the original
contract (i.e., the first $39,800.00 to be retained by ENTITY, and the remaining balance over
$39,800.00 to be divided equally between COUNTY and ENTITY;

      That the budget for year three, attached hereto as Exhibit A, is hereby approved for
 ENTITY'S accounting purposes and COUNTY'S informational purposes;

         That unless further modification is made, the terms of the original contract will remain in
 effect unmodified for year four and all subsequent years of the CRPDO program;

        That two clarifications as to the intended scope of the CRPDO must be enumerated, to-
 wit:

        (1) That on February 2, 2012, the CRPDO's Oversight Board approved a clarification of
            the scope of the CRPDO program to insure the CRPDO can accept appointments on
            misdemeanors, felonies and juvenile cases, including appeals on misdemeanors,
            felonies and juvenile cases, from the County and District Courts of the 7th and 9th
            Administrative Judicial Region, and

           (2) That the current caseload maximum of the CRPDO is 600 misdemeanor cases, or
              their weighted equivalent;

           That the CRPDO may also receive the appointment of appeals from any courts within the
 7th and    9th Administrative Judicial Region -- whether or not from counties in the CRPDO



 MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT                                       Page 3of6
program -- until such time as CRPDO has reached its full caseload maximums, as set by the
CRPDO's Oversight Board, giving preference to the needs of the counties within the CRPDO
program;

       That any appeals accepted by the CRPDO from counties not participating in the CRPDO
program shall be compensated by the appointing county at its normal customary court appointed
rate with any sums received to be credited against COUNTY's obligations to the ENTITY
hereunder;

       That upon the hiring of a second Assistant Public Defender, should that occur, the
caseload maximum of CRPDO, with approval of the CRPDO Oversight Board, will increase to
1000 misdemeanor cases, or their weighted equivalent; and

        That the ENTITY and COUNTY hereby agree to these clarifications of scope to take
effect August 1, 2012, and to continue for the Ii fe of the CRPDO.

       COUNTY:

       Judge Lesa Arnold (or her successor)
       Dickens County Judge
       Post Office Box 179
       Dickens, Texas 79229

       ENTITY:

       FOR TECHINICAL ISSUES:

              Patrick S Metze (or his successor)
              Director, CRPDO
              Texas Tech University School of Law
              1802 Hartford A venue
              Lubbock, Texas 79408

       FOR CONTRACTUAL ISSUES:

              Dr. Jay B. McMillen
              Assistant Managing Director
              Office of Research Services
              Texas Tech University
              P.O. Box 41035
              203 Holden Hall
              Lubbock, Texas 79409-1035




MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT                                 Page 4of6
                  With copy to:

                  Dr. Kathleen Harris
                  Senior Associate Vice President for Research
                  Office of Research Services
                  Texas Tech University
                  P.O. Box 41035
                  203 Holden Hall
                  Lubbock, Texas 79409- l 035

        SIGNED AND EXECUTED by the parties on the date(s) indicated by the signatures of
the authorized representatives.

DICKENS COUNTY


By·   .----#_ · 1-'=--~~~:::::::.i......C{~-!:::D=ate:..:....._:_Ji-'- %=-.;.'.;<_ ;~. c. -/;"- :6::...i.,__
                                                                                                ='
  ~d (or her successor)
         Dickens County Judge
         Post Office Box 179
         Dickens, Texas 79229


TEXAS TECH UNIVERSITY




By:    J~/ ~;(,j,,,                              o .                 Date:      10 /      °8 // .6•
       .I Dr. Kathleen Harris
          Senior Associate Vice President for Research
          Office of Research Services
          Texas Tech University
          Post Office Box 41035
          203 Holden Hall
          Lubbock, Texas 79409-1035




MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT                                                              Page 5of6
                          EXHIBIT A
THIRD YEAR BUDGET FOR CAPROCK REGIONAL PUBLIC DEFENDER OFFICE




MODIFICATION OF REGIONAL PUBLIC DEFENDER CONTRACT      Page 6of6
FY 2013      Budget
                                         Projected
             Expenses                    FY 2013


?            Indirect Costs to Dickens   s    15,000.00


6Al          Faculty salaries
             Meue                        s 15,000.00
             Yandell                     s 105,995.76
6A2          Staff salaries
             Washington                  s       50,000.00
             Pelowski                    s       72,000.00
             Clerk                       s       10,000.00


684          Fringe                      s       80,000.00


              Research                    s      50,000.00


 78           Travel                      s      12,000.00


 7C           Materials/supplies          s       8,000.00


 7D0030       Telecomm services           s       5,200.00


 7F1010       Repairs/maintenance         s       1,500.00


    7G        Rental                      s      38,615.24


    7H0026    Printing                    s       2,000.00


    7N        Other expenses              s       1,700.00


    7N1000    Dues                        s          89.00

    7N3       Other services              s        2,400.00

    7N4       Food/entertainment          s        2,000.00

    7N6009    Other exp                      s      500.00



              Total:                         s 472,000.00

               Direct Costs                  s 383,000.00
               Indirect Cost                 s 15,000.00
               Total Contract:               s 398,000.00
               County pays 20%               s    79,600.00

               TIDC:
               FY 2012 Carry-over            s 30,000.00
               TIDC FY 2013 contrib.         s 288,400.00
               TIDC pays 80%                 s 318,400.00

               Tech's Carry-over             $  74,000.00
               Total budget FY 2013          $ 383,000.00
                Indirect Costs               s 15,000.00
                Budget FY 2013               s 472,000.00
 FY 2013 County Costs

                                                                                                                                                                           Cost Per
                                                                                      FY 2013 Min. FY 2013 Max.                                      Cost Per Cost Per
                                                    Portion of           FY 2012                                                     Cost Per Case                          Case FY
            County         2010 Pop. Est.                                                 Case         Case              Year3                      Case@FY Case FY 2013
                                                    Population        Projected Use                                                  2011 &2012                             2013 at
                                                                                       Allocation   Allocation                                     2012 Usage  at Min
                                                                                                                                                                             Max
        Armstrong                     2,188                  3.00%               15             18               30     $2,388.00          $0.00 s   159.20   s   132.67   s  79.60
         Briscoe                      1,577                   2.17%              15             13               22     $1,727.32          $0.00 s   115.15   s   132.87   s  78.51
        Collingsworth                 3,059                  4.20%                0            25                42     $3,343.20          $0.00              $   133.73   $ 79.60
        Cottle                        1,647                  2.26%                0            14                23     $1,798.96          $0.00              s   128.50   s  78.22
        Dawson                      13,929                  19.13%              95            115               192    $15,227.48          $0.00 $   160.29   $   132.41   $ 79.31
        Dickens                      2,656                   3.65%              35             22                37     $2,905.40          $0.00 s    83.01   $   132.06   s  78.52
        Floyd                        7,248                   9.95%              42             60               100     $7,920.20          $0.00 s   188.58   $   132.00   s  79.20
        Gaines                      15,201                 20.88%               40            125               208    $16,620.48          $0.00 $   415.51   $   132.96   $ 79.91
        Garza                        5,057                   6.95%              54             42                70     $5,532.20          $0.00 s   102.45   s   131.72   s  79.03
        Hardeman                     4,352                   5.98%              23             36                60     $4,760.08          $0.00 s   206.96   $   132.22   $ 79.33
        Kent                           816                   1.12%                1              6               10       $891.52          $0.00 s   891.52   s   148.59   s  89.15
        King                           355                   0.48%                0              3                5       $382.08          $0.00              $   127.36   s  76.42
        Knox                         3,797                   5.21%              11             31                51     $4,147.16          $0.00 s   377.01   s   133.78   $ 81.32
        Motley                       1,465                   2.01%              12             12                20     $1,599.96          $0.00 s   133.33   s   133.33   s  80.00
        Stonewall                    1,460                   2.01%              12             12                20     $1,599.96          $0.00 s   133.33   s   133.33   s  80.00
        Swisher                      8,007                 11.00%               11             66               110     $8,756.00          $0.00 s   796.00   s   132.67   s  79.60
        Totals:                     72,814                100.00%              366            600              1000    $79,600.00




                                                  Indirect Costs          CRPDO        Equipment           Total          Total          Total      Funds      Funds     Maximum
                                                    to Dickens           Contract       Budget           Contract        Revenue       Expenses    Returned Carried over Caseload
FY2010 Year 1                                 $                       $ 440,000.00    s123,064.00    s   563,064.00   $ 489,730.60   $ 346,025.65 $44,500.56 $99,204.39       400
                           Equipment cost                                             $ 53,492.43
                            Funds unused                                              s 69,571.57

FY2011 Year2                                  s                       s440,000.00                    s440,000.00 s440,000.00 s336,000.00         $30,000.00   s74,000.00        600

FY2012 Year 3                                 s    15,000.00          s383,000.00                    $ 398,000.00                                                               600
                                 TIDC's80%                                                           $ 318,400.00
                                 Less Funds Returned to TIDC                                         s (30,000.00)
                        Total TIDC Contrib                                                           s 288,400.00
                            Counties' 20%                                                            $ 79,600.00
   Caprock Regional Public Defender Office

Mission Statement:
       The Caprock Regional Public Defender Office provides zealous advocacy for indigent
people in West Texas who are accused of committing crimes; educates third-year Texas Tech
law students about criminal defense representation; assists criminal defense attorneys in West
Texas; and furthers and promotes the causes of justice and equality in Texas and throughout the
United States.



Vision Statement:
       The Caprock Regional Public Defender Office will endeavor to grow and expand the
educational opportunities it provides to students and the service it provides to members of the
community. The clinic will work with the Law School administration and its faculty to increase
the number of law students who can take the clinic. The clinic will work with members of the
bench and bar to expand the number and types of cases that it handles. The clinic will collaborate
with more organizations to further its goals and mission.



Goals:
       The Caprock Regional Public Defender Office has four primary goals. They are as
follows:

       1. The timely and efficient representation of indigent clients appointed to the office
          within the region for which the office operates while maintaining the quality of the
          representation at an exemplary level.

       2. The training and education of third year students attending the Texas Tech School of
          Law who have shown an interest in practicing in a criminal law environment.

       3. Assist the counties in the region for which the office operates in their budgetary and
          criminal justice concerns by striving to assist the counties to minimize the counties’
          expenses.

       4. Provide raw data to and assist other schools within the Texas Tech University System
          with research interests that could benefit from the data obtained as a result of the
          office while maintaining client confidentiality.

                                                1
                                                         Table of Contents


Contents
Mission Statement:.......................................................................................................................... 1
Vision Statement: ............................................................................................................................ 1
Goals: .............................................................................................................................................. 1
A.        Purpose................................................................................................................................. 3
B.        Objective .............................................................................................................................. 3
C.        Personnel .............................................................................................................................. 3
D.        Continuing Legal Education ................................................................................................ 4
E.        Investigator Training ............................................................................................................ 4
F.        Conflict Checks .................................................................................................................... 5
G.        Caseload Allocation ............................................................................................................. 5
H.        Case Management/Performance Guidelines ........................................................................ 8
I.        Ethics of Public Service ....................................................................................................... 9
J.        Discrimination/Sexual Harassment: ................................................................................... 10
K.        Equal Employment: ........................................................................................................... 13
L.        Drug Free Workplace: ........................................................................................................ 13
M.        Confidentiality: .................................................................................................................. 14
N.        Outside Speaking Engagements:........................................................................................ 14
O.        Outside and Self Employment: .......................................................................................... 14
P.        Acceptance of Gifts: ........................................................................................................... 15
Q.        Use of Public Defender Property for Personal Business: .................................................. 15
R.        Media Relations: ................................................................................................................ 16
S.        Conduct: ............................................................................................................................. 17
T.        Personal Appearance: ......................................................................................................... 17
U.        Computer Policies and Procedures: ................................................................................... 18
V.        Ethics: ................................................................................................................................ 18
W.        Construction: ...................................................................................................................... 19




                                                                          2
        This manual is designed to function as the working guide to the operation and utilization
of the Caprock Regional Public Defender Office. The policies and procedures outlined in this
manual have been developed by the Public Defender. These guidelines are subject to the
organizational agreement between the Public Defender and the oversight board created by
counties serviced by the office. Policies and procedures described in this manual are subject to
change on an “as needed” basis as the needs and capabilities of the office and the county change.



A.      Purpose
        1.     The purpose of these guidelines is to provide principles for establishing and
               maintaining productive relationships between the Office and its employees.

        2.     The Chief Public Defender reserves the right to change any provision of these
               guidelines unilaterally at any time, without individual notice of the potential
               change to the individual employees.

        3.     No employee, supervisor, official, or representative of the Caprock Regional
               Public Defender Office has any authority to change any portion of these
               guidelines, except at the specific direction of the Chief Public Defender.



B.      Objective
The objectives of these guidelines, as supported by sound personnel administration, include:

        1.     To treat applicants and employees in accordance with the law.

        2.     To motivate employees to work toward the goals established by the Office and to
               provide create a working environment, which provide forencourages employee
               achievement, recognition and growth.



C. Personnel
   Detailed job descriptions for each position in the Public Defender’s office are attached as
Appendix “A” to this document. The positions that are envisioned for the Public Defender’s
Office are:

     1. Attorneys
           a. Chief Public Defender;
           b. First Assistant Public Defender; and
           c. Assistant Public Defender.

                                                3
     2. Investigation
           a. Chief Investigator

     3. Support Staff
           a. Administrative Assistant

     4. Conduct/ Ethical Guidelines

    As employees of attorneys, staff members are bound by the same ethical standards as
attorneys. First and foremost, this includes the attorney-client privilege. Anything we learn
from a client is confidential and will not be shared with anyone outside this office without
the clients’ permission. This includes friends and family of the client.

    Secondly, all members of the PDO should be respectful of the witnesses and other parties
that we come across during the course of our representation of a client. While there will be
individuals who will make it difficult or impossible to do that, always go into the situation as
respectfully as possible. You should also show respect to the victims who agree to speak with
us. Finally, you should seek a parent or guardian’s permission before speaking to a juvenile
witness or victim.

     5. Sick/ Vacation Leave

   Sick and vacation leave are to be governed under the guidelines and policies of Texas Tech
University.



D.      Continuing Legal Education
         Under the Texas Fair Defense Act, any attorney requesting appointments to represent
indigent defendants must have at least ten (10) hours of continuing legal education in the field of
criminal law each calendar year and be an active member of the State Bar of Texas to maintain
eligibility to receive appointments.

        The PDO will cover all expenses in sending its attorneys to CLE seminars approved in
advance by the Chief Public Defender in order to meet with appointment requirements. The PDO
will also cover the expense for membership dues to the State Bar of Texas and the Texas
Criminal Defense Lawyer’s Association.



E.      Investigator Training
       The investigator will receive training and certification under the guidelines of the
National Association of Investigative Specialists (NAIS). The investigator will need to become
                                                 4
proficient in interviewing skills, with the use of a digital camera and voice recorder, and with
scene or location sketches or diagrams. The investigator will also need to review and become
familiar with common investigative manuals and procedures utilized by local law enforcement
agencies to assist the attorneys in strategy planning before trial.



F.     Conflict Checks
        It is axiomatic in law that a lawyer cannot effectively represent a client when there exists
a conflict of interest. In criminal defense work, that conflict most often arises when you have
been appointed to represent someone and you already represent the victim, a co-defendant, or
adverse witness in the case. In order to avoid that situation, a conflicts check is to be conducted
on each case early in the appointment process.

       The administrative assistant, or the attorney assigned to the case, should enter in the
names of the client, victim(s), co-defendant(s), if any, and any known witnesses into the conflict
checking software. If additional victims, witnesses, etc. are later uncovered, they should also be
entered into the software program to see if a conflict arises.

        In the event a potential conflict is uncovered, the attorney needs to view the nature of the
conflict and then make a professional judgment as to whether withdrawal is required. If in
doubt, the attorney should discuss it with the Chief Public Defender or the First Assistant for
guidance.

       If withdrawal is required, the attorney shall report the conflict to the Chief Public
Defender who shall approve the withdrawal after consideration and report the need for
withdrawal to the appointing court.



G.     Caseload Allocation
        The ability to provide zealous and effective representation of indigent citizens accused of
crimes depends on the skill of the attorney, the quality of the support staff, adequate funding for
investigators and experts, and sufficient time to adequately investigate, research and prepare the
case. In order to allow sufficient time to be allocated to any individual case, the attorneys and
support staff must not be responsible for representing too many clients at any one time, lest the
representation of all should suffer. Counterbalancing the needs of the client is the need to be
mindful of the limited resources available to the defense of indigent citizens. The caseload
standards and allocation plan for fairly distributing cases amongst the attorneys of the public
defender’s office seeks to maximize the number of cases that can be handled by the office while
still maintaining a quality defense in line with ethical and professional standards.

       1. Caseload Standards



                                                 5
              Office Caseload standards (Developed through reference to other case
management standards used by public defender and legal aid offices, including the National
Legal Aid and Defender Association {NLADA}. These standards may be reevaluated later
based upon actual experience by the Caprock Regional Public Defender Office.)

           a. Types of Cases
                 i. Felonies – All degrees (No capital cases)
                 ii. Misdemeanors – Class A & B

           b. Caseload Limits
                 i. 400 Cases/Year Per Attorney
                 ii. These standards may be modified by agreement of the Commissioner’s
                     Overnight Committee, Board of Judges, and the Public Defender’s office
                     based upon:
                                1. Number and type of support personnel;
                                2. Actual mix of cases;
                                3. Experience and position level of attorney; and
                                4. Actual experience.

           c. Case tracking
                 i. Computer software program to track and monitor caseloads to determine
                     most viable numbers will be implemented.
                 ii. Records to be kept regarding number of each grade felony and
                     misdemeanor assigned to office will be implemented.

       2. Chief Public Defender Caseload

         Initially, with one attorney handling just misdemeanors and juveniles, considering the
statewide average of 35% appointments for cases added and the region’s four year average of
1261 misdemeanors and 38 juveniles added each year, should juvenile appointments rise to
200% of juvenile cases added (76 cases), this would allow the Chief Public Defender to handle a
total of 248 misdemeanor cases. At the statewide 35% appointment rate (441 misdemeanors),
this would result in 193 defendants that would have to receive appointment of counsel from the
traditional appointment wheel until the Assistant Public Defender is hired in April, 2011.
However, timing should bring the Assistant Public Defender onboard at about the right time to
lessen the effect of the Chief Public Defender reaching his maximum caseload. Until the Fall,
2011, the Chief Public Defender will not have duties associated with instruction or supervision
of student attorneys. At that time, the Chief Public Defender’s caseload should drop to a total of
56 juvenile cases and 228 misdemeanors.

       3. Assistant Public Defender

       As the Assistant Public Defender will be hired in April, 2011, this would open up an
additional 400 misdemeanor appointments, assuming juvenile appointments do not exceed
double the 4 year average.



                                                6
       4. Anticipated Increase in Appointments

        From experience, once public defenders are available for juvenile cases, the juvenile
caseload is expected to double to 76 juvenile cases and the number of adults that qualify as
indigent for appointment will increase to 50% of cases added. At that time, juvenile caseload
should reach 76 and misdemeanors 630. With the Chief Public Defender handling all the
juveniles and 248 of the misdemeanors the remaining 382 misdemeanors will virtually create a
full caseload for both attorneys. This is expected within the first year.

       5. Student Attorneys

        Once the initial 12 student attorneys are assigned in the Fall, 2011, over the next 9
months, the students should handle 180 of these cases, both misdemeanors and juveniles
(average 9 month caseload would be 15 cases per student). These cases should be assigned 120
to the Assistant Public Defender giving him a balance of 262 cases on his exclusive docket. The
Chief Public Defender will see his exclusive docket reduce from 248 misdemeanors and 76
juveniles to 228 misdemeanors and 56 juveniles (juvenile cases taking twice as much time as a
typical misdemeanor case).

       Due to the fact that unforeseen circumstances may present themselves, the Chief Public
Defender will be responsible for monitoring and adjusting the caseload as he/she sees fit.
______________________________________________________________________________
Chief Public Defender’s Caseload:                                          Until
                                                                           Fall 2011
                      Maximum        Maximum       Maximum                 Expected
                      Caseload       Caseload      Caseload                Caseload
                      PD             PD            PD                      PD

Misdemeanors          400                                                 248

Juveniles                            200                                  76*

Felonies                                  150               0
______________________________________________________________________________

First Assistant Public Defender’s Caseload:                               Until
                                                                          Fall 2011
                      Maximum        Maximum        Maximum               Expected
                      Caseload       Caseload       Caseload              Caseload
                      PD             PD             PD                    PD

Misdemeanors          400                                                 400

Juveniles                            200                                  0

Felonies                                            150                   0

                                                7
______________________________________________________________________________

12 Student Attorneys Caseload:
                                                                            Fall 2011
                                                                            Expected
                                                                            Caseload
                                                                            Student Attorneys

Total cases for the period of August, 2011 – May, 2012                      180 cases

Misdemeanors                                                                140

Juveniles                                                                   20 (Juv x2)*

Felonies                                                    0
______________________________________________________________________________
Fall: 2011:       Misdemeanors      Juveniles               % of time
                                                            to cases

Student Attorneys     140                    20       (Juv x2)*             100%
PD                    228                    56                             85%
1st Asst. PD          280                                                   70%

Totals:               648                    76       (Juv x2)*

Total cases:          800

*Juvenile cases count as two misdemeanor cases as they take twice as much time.
______________________________________________________________________________



H.        Case Management/Performance Guidelines
        The provision of criminal defense services is not one that easily lends itself to pure
numerical analysis. While the process of determining the dollars and cents it costs to provide
defense services for “x” number of cases is ascertainable, determining the actual quality of those
services is more difficult. The Constitution guarantees all citizens accused of jailable offenses
the effective representation of counsel. Mindful of that guarantee, the goal should be to provide a
high quality of representation at a reasonable cost and not the bare minimum at lowest possible
cost. While there is no one standard to determine effective representation, the Public Defender
should seek to measure, to the extent possible, those items that the office and the
Commissioner’s Court agree provide some measure of the success in providing criminal defense
services. These measurements and reports are subject to ongoing revision based upon the
capabilities of the equipment available to capture the information and the determination of the
parties as to what constitutes valid measurement criteria.


                                                  8
        For more objective measurements of the PDO’s performance, reports relaying the
following information are under development. In the event that the computer software used by
the office is unable to prepare this information, alternative reports shall be developed.

       1.     Effectiveness of Representation

              a.      Monthly case flow
                      i. Number of cases received;
                      ii. Number of cases closed; and
                      iii. Pending case load

              b.      Length of time from:
                      i. Arrest to appointment;
                      ii. Arrest to release from custody with judgment or dismissal;
                      iii. Appointment of case to release from custody with judgment or
                           dismissal; and
                      iv. Appointment to disposition of case



I.     Ethics of Public Service

       Public Service is a public trust. The highest obligation of every individual in our
organization is to fulfill that trust. Each person who undertakes this public trust assumes two
paramount obligations:
               - to serve the public interest by zealously representing our clients;
               - to perform public services with integrity.

        These are the commitments implicit in all public service. In addition to faithful
adherence to these principles, public employees have an additional duty to discern, understand
and meet the needs of their fellow citizens so far as this does not conflict with the zealous and
ethical representation of our clients. That is the definition of a public servant. As public
lawyers, each Assistant Public Defender (APD) is charged with the ethical obligations owed by
every member of the bar. Each Assistant Public Defender is additionally charged with the
ethical duties and responsibilities of the government lawyer.

        The core values above should be the foundation of all action by members of our staff.
These principles are too general to govern the resolution of concrete ethical problems. In an
attempt to spell out the practical implications of these core values, we have articulated the
principles set forth below. We address them to you in the hope that they will guide your day-to-
day work and help you deal with ethical dilemmas you may face:

       Integrity requires of you a consistent approach to all issues, decisions or actions. Your
willingness to speak up is essential.

              The true public servant:

                                                9
                       - will not act out of spite, bias, or favoritism;

                       - will not tell the boss only what he/she wants to hear;

                       - respects the competence and views of others;

                       - does not succumb to peer or other pressure;

                       - contributes to a climate of mutual trust, respect and friendliness;

                       - refuses to let official actions be influenced by personal relationships,
                       including those arising from the past or prospective employment;

                       - has the courage of his or her convictions;

                       - unflinchingly accepts responsibility;

                       - does not try to shift blame to others and accepts responsibility for one’s
                       own actions and conduct;

                       - never forgets that they are working for the people...all the people.

        Every Assistant Public Defender must adhere to the spirit and letter of the provisions set
forth in the State Bar Rules governing disciplinary conduct, the Texas Lawyer’s Creed, and the
Texas Code of Criminal Procedure.


J.     Discrimination/Sexual Harassment:
       Policy

       1.       It is the policy of the Caprock Regional Public Defender Office to employ
                positive business and personnel practices designed to ensure the full realization of
                equal employment opportunity without regard to race, color, age, religion, sex,
                sexual orientation, national origin, handicap, or veteran status.

       2.       The purpose of this policy is to provide a workplace that is free from unsolicited
                and unwelcome behavior, including sexual overtures or conduct, either physical
                or verbal. This policy is in accordance with and in addition to the Texas Tech
                University Policy and Procedure Manuel.

       3.       Specifically forbidden is discrimination/harassment of a sexual, racial, ethnic, or
                religious nature. Such harassment includes unsolicited remarks, gestures or
                physical contact, display or circulation of written materials or pictures derogatory
                to either gender or to a racial, ethnic, or religious group.


                                                  10
4.     Violations of this policy will not be permitted. Any employee or supervisor who
       violates this policy will be subject to immediate and appropriate discipline up to
       and including immediate termination. It is the duty of each employee to report
       any incident of prohibited conduct whether it involved them personally or another
       employee.

5.     Retaliation against an employee for reporting conduct in violation of this policy
       will not be permitted.

Sexual Harassment and Discrimination – Definition

1.     Sexual harassment is defined as unwelcome sexual advances, requests for sexual
       favors, and other verbal and physical conduct of a sexual nature when:

              Submission to such conduct is made whether explicitly or implicitly a
              term or condition of an individual’s employment; or

              Submission to or rejection of such conduct by an individual is used as the
              basis of employment decisions affecting such individual; or

              Such conduct has the purpose or effect of unreasonably interfering with an
              individual’s work performance or creating an intimidating, hostile or
              offensive working environment.

Sexual Harassment and Discrimination Rules of Conduct

1.     Personnel actions shall not be taken affecting an employee (either favorably or
       unfavorably) on the basis of conduct which violates this policy and is not related
       to the workplace. Such conduct may include submitting to sexual advances,
       refusing to submit to sexual advances, protesting sexual overtures, or making a
       complaint concerning the alleged violations of this policy.

2.     Employees shall not behave in a manner that is unwelcome by any other
       employee and is personally offensive, such as, but not limited to the following
       examples:

              Repeated sexual flirtations, advances, or propositions;

              Continued or repeated verbal abuse of a sexual nature, sexually related
              comments and joking, graphic or degrading comments about an
              employee’s appearance, or the display of sexually suggestive objects or
              pictures;

              Any uninvited physical contact by touching, such as patting, pinching, or
              brushing against another’s body; or
              Any conduct that unreasonably interferes with another employee’s

                                        11
              performance or creates an intimidating, hostile, or offensive working
              environment even if no tangible or economic damages result.

3.     Employees shall not exert pressure for sexual favors, including implying or
       threatening that an applicant’s or employee’s cooperation of a sexual nature (or
       refusal of it) will have any effect on the person’s employment, job assignment,
       wages, promotion, or on any other conditions of employment or future
       opportunities.

4.     No employee shall bring or possess any pornographic or sexually explicit material
       in the workplace. Any such material found in the workplace shall be immediately
       confiscated. This subsection does not apply to evidentiary material handled in the
       normal course of criminal defense litigation.

Reporting/Investigations

1.     Any employee who feels that he/she is a victim of discrimination or harassment
       shall immediately report the matter to the Chief Public Defender or the Office
       Manager. In addition, the employee may also file his/her complaint with the
       Director of Personnel or directly to any field office of the Equal Employment
       Opportunity Commission (EEOC) or the Texas Human Rights Commission
       (THRC). Provided, however, that in the event the employee elects to report
       directly to the EEOC or THRC, the employee must provide notice to the Chief
       Public Defender or Personnel Department within 24 hours of filing said report or
       complaint.

2.     Any person who received a report of discrimination or harassment or becomes
       involved with its investigations shall keep all information about it as confidential
       as possible in order to protect other victims and witnesses from retaliation and the
       alleged harasser from defamation if the accusations are unfounded. All written
       materials relating to the investigation and recommended action, including
       complaint forms, notes, memos, statements, etc., shall be kept confidential to the
       greatest extent allowed by law and shall be maintained in a secure file with access
       allowed only to the Chief Public Defender and any other person specifically
       authorized by the Chief Public Defender.

3.     Any person who received a report of discrimination/harassment shall treat the
       employee making the report with respect and dignity and shall immediately
       investigate the report seeking all assistance necessary to obtain a thorough
       investigation. If it becomes apparent that it is in the best interest of those
       involved for an employee to remain away from the workplace during the
       investigation, that employee will be placed on administrative leave with pay until
       completion of the investigation. If harassment is found, the Chief Public
       Defender shall take prompt and reasonable remedial action to end the harassment
       and prevent the misconduct from recurring.



                                        12
       4.      Each employee has a responsibility to report incidents of obvious discrimination
               or harassment. Each employee shall cooperate with the
               Discrimination/Harassment Review Committee in the conduct of its investigation.
               Any employee who fails to comply is subject to discipline up to and including
               immediate termination.

       5.      Any employee who has been found to have been involved, actively, or passively,
               in discrimination/harassment, is subject to discipline, which may include
               reprimands, probation, suspension, and immediate termination.

       6.      Individuals who believe that they are being sexually harassed by a supervisor are
               not required to discuss the matter with their supervisor. They should notify and
               report such harassment to one of the other persons listed above.


K.     Equal Employment:
        It is the policy of the Caprock Regional Public Defender Office to prohibit discrimination
in matters of recruitment, employment, training, promotion, wages, or discipline because of race,
color, sex, sexual orientation, age, religion, national orientation, marital status, or disability in
accordance with all Federal, State or local regulations.


L.     Drug Free Workplace:
        The office of the Caprock Regional Public Defender Office and the citizens of this
community have a vital interest in maintaining a safe, healthful and efficient workplace for the
Caprock Regional Public Defender Office employees and in maintaining the integrity and
reputation of the Office. Being under the influence of a drug or alcohol on the job, may pose
safety and health risks, not only to the user but to all those who work with the user.

        The possession, use, abuse or sale of any legal or illegal drug, controlled substance or
alcohol in the workplace poses an unacceptable risk to the safe, healthful and efficient
performance of our mutual job responsibilities and the integrity and reputation of this Office.
Such misconduct is expressly prohibited. Likewise, the illegal possession, use, abuse or sale of a
legal or illegal drug, controlled substance or alcohol outside the workplace is a violation of law
and is expressly prohibited. Any such misconduct by an employee of the Caprock Regional
Public Defender Office diminishes the integrity, public trust and reputation of both our
organization and employees and may result in disciplinary action up to and including
termination.

        The Caprock Regional Public Defender Office recognizes that the physical and
psychological health of its employees is critical to its success. Accordingly, it is the right,
obligation and intent of the Caprock Regional Public Defender Office to maintain a drug free,
safe, healthful and efficient working environment for all its employees and to protect the Office’s
and employee’s reputation, integrity, property, equipment and operations.


                                                 13
M.     Confidentiality:

        Although we are a public organization, the information contained in our files and records
or otherwise obtained by virtue of our employment is strictly CONFIDENTIAL! Employees are
prohibited from discussing or providing written or verbal information on any aspect of a pending
or closed case or internal procedures and operations with or to any person unless such
information has previously been or required to be discussed in a legally recognized manner, e.g.
a judicial proceeding or a proper request under the Texas Open Record Act.

      Requests for information contained in our files or records should be made in writing.
Any questions on this policy and all written requests for information under the Texas Open
Records Act shall be directed immediately to the Chief Public Defender.

       Under no circumstances are employees of the Caprock Regional Public Defender Office
to provide confidential information to any person outside of our organization. Failure to strictly
adhere to this policy will result in immediate disciplinary action, including termination.


N.     Outside Speaking Engagements:
       Employees of the Caprock Regional Public Defender Office are encouraged to participate
in outside activities, which educate and assist in explaining the Caprock Regional Public
Defender Office’s role in the criminal justice process, explain citizen’s individual rights, or
represent the Caprock Regional Public Defender Office in our community. These activities
include speaking engagements, participation in seminars and attendance at community meetings.

       Every Caprock Regional Public Defender Office employee has a recognized
Constitutional right to freedom of speech. However, prior approval from the Chief Public
Defender is required whenever an employee undertakes to speak on behalf of the Caprock
Regional Public Defender Office or represent any aspect of our organization to the public.

       During normal business hours, all such speaking requests shall be coordinated with our
business schedule and receive prior approval from the Chief Public Defender. Our principal
business commitment takes precedence over outside speaking engagements.


O.     Outside and Self Employment:
       All employees must have the written approval of the Chief Public Defender prior to
beginning any outside employment or self-employment. Outside employment and self
employment are defined as work for personal economic remuneration. The Chief Public
Defender may give such approval only if the following items are understood and agreed to by the
employee:

       1.      There is no conflict of interest between the Public Defender job and the proposed
               outside work;

                                               14
       2.      The proposed work will not interfere with the employee’s regular work schedule;

       3.      The proposed work will not, in the opinion of the Chief Public Defender, interfere
               with the quality or quantity of the employee’s regular Public Defender work.

        The employee should understand that after approval has been granted, if the preceding
items are not met, the employee will be asked to resign either from the outside work or from the
Public Defender’s office. A request for permission to enter outside or self-employment must be
initiated by the employee in writing and shall provide detailed information as to the nature of the
outside work and the hours to be worked.

       Any change in the nature or hours of previously approved outside work or self-
employment shall be communicated in writing to the Chief Public Defender for the purpose of
determining continued approval.

       Under no circumstances are employees to contract outside or self-employment activities
on Public Defender premises during times for which they are being compensated by the Office.
Employees are not to disrupt or interfere with the productivity of coworkers in furtherance of
outside work or self-employment.

       Assistant Public Defenders are not allowed to perform criminal legal work outside the
scope of their work for the office or which is in violation of Article 26.044, of Code of Criminal
Procedure.


P.     Acceptance of Gifts:
         The practice of Caprock Regional Public Defender Office employees accepting gifts or
gratuities is not only unnecessary and undesirable, but also contrary to the public interest and
law. Therefore, all employees are prohibited from accepting gifts, gratuities or favors from
clients, their families or friends.

      All attempts to provide gifts, favors, services or other things of value to employees of the
Caprock Regional Public Defender Office shall be immediately reported to the Chief Public
Defender.

       The Chief Public Defender may approve exceptions to this rule, such as flowers or a box
of candy shared by the entire Office.


Q.     Use of Public Defender Property for Personal Business:
       Office supplies, computer, software and hardware, internet/email access, diskettes,
photocopy equipment, telephone services, etc., are provided to Caprock Regional Public
Defender Office employees for furtherance of official business purposes. These items are not for


                                                15
personal use. They are not an informal fringe benefit of employment with the Caprock Regional
Public Defenders Office.

       The reasonable use of telephone for personal local calls of short duration is allowed.
Personal long distance telephone calls (including FAX) are prohibited when charged to the
Caprock Regional Public Defender Office.


R.     Media Relations:
        It is the intent of the Caprock Regional Public Defender Office to make public
information available to the news media without undue delay, while at the same time, assuring
that any official statements from the Caprock Regional Public Defender Office be handled from
a central point in the Office. All employees should maintain a cordial and helpful relationship
with representatives of the print, broadcast and television media in responding to media inquiries
by referring inquiries to the Chief Public Defender or the appropriate Assistant Public Defender
personnel. Any employee answering a news media inquiry must take full responsibility for any
misquotes, interpretations or misinterpretations. In order to accomplish the above objectives, all
Caprock Regional Public Defender Office employees shall abide by the following rules:

Inquiries Regarding Litigation

1.     No information regarding cases within the Caprock Regional Public Defender Office
       shall be made public unless previously authorized by the Chief Public Defender.

2.     From the time a case is received in the Caprock Regional Public Defender Office to the
       final disposition of the case, no employee shall make or authorize the release of any
       extra-judicial statement which may possibly have a prejudicial effect on a pending
       matter. This includes: a) The character, credibility, reputation or criminal record of a
       client or witness, or the identity of a witness, or the expected testimony of a witness; b)
       The possibility of a plea or the existence or contents of any admission, confession or
       statement given by a client, or that person’s refusal to make a statement; c) Any opinion
       as to the guilt or innocence of any person; d) Information that a Public Defender
       employee knows or reasonably should know is likely to be admissible as evidence in a
       trial that would, if disclosed, create a substantial risk of prejudicing an impartial trial and
       e) The prior criminal record (including arrests, indictments or other charges of crimes), or
       the character or reputation of any person involved.

3.     Responses regarding litigation are further restricted and dictated by Rule 3.07 of the
       Texas Disciplinary Rules of Professional Conduct. Of paramount consideration is our
       ethical responsibility to avoid prejudicial pre-trial publicity.

Non-Litigation Inquiries:

1.     Employees of the Caprock Regional Public Defender Office who may from time to time
       be directed or requested by the Chief Public Defender to act as an official representative


                                                 16
       of the office for a special purpose or occasions are to observe the following guidelines
       with appropriate good judgment.

              Nothing is done publicly, by word or deed that would discredit the office of the
              Caprock Regional Public Defender Office, its officials, employees, or programs;
              and the conduct of an official representative is to be appropriate to the occasion.

              No new information is made public without prior clearance with the Chief Public
              Defender or the designee of the Chief Public Defender.

              Any statements made formally or informally are to reflect favorably and
              respectfully with reference to the Caprock Regional Public Defender Office.

              Statements of facts regarding office programs are not to be issued unless
              previously published, and/or approved by the Chief Public Defender.

2.     Caprock Regional Public Defender Office employees shall not make any policy
       statements as to what the Caprock Regional Public Defender Office will or will not do
       unless such decision has previously been made by the Chief Public Defender and
       announced by him/her. Policy decisions will only be made and communicated by the
       Chief Public Defender or his/her designee.


S.     Conduct:
       1.             Courtesy:     Common Courtesy in interacting with other employees,
                      court personnel, clients and others is required.

       2.             Attitude:    A good attitude is important and required in maintaining a
                      good working environment.

       3.            Neatness and Organization: OFFICES MUST BE KEPT CLEAN AND
              ORGANIZED. All employees are expected to clean up after themselves and be
              organized in their work and break areas.

       4.            Work stations must be closed down at the end of the day. Monitors,
              terminals, radios, etc. need to be turned off before employee leaves for the day.


T.     Personal Appearance:
        Since the Office of the Caprock Regional Public Defender Office serves the public and is
subject to public scrutiny, each employee has the obligation to view his or her personal
appearance as it reflects on this office. Due to the law office setting and its traditional dress
norms, employees are to dress conservatively and avoid extremes. Also, neatness and good
grooming are important factors in projecting the Caprock Regional Public Defender Office in a
positive public image.
                                               17
U.     Computer Policies and Procedures:
        The Caprock Regional Public Defender Office maintains a computer network and related
computer equipment for use by the Assistant Public Defenders and staff in the conduct of official
business. All employees must be familiar with and follow office policy and procedure with
respect to use of the computer network and related equipment. The failure to follow these
policies and procedures may result in a loss of access to the network system and disciplinary
action deemed appropriate by the Chief Public Defender, up to and including termination. All
records created or maintained on the system are the property of the office of the Caprock
Regional Public Defender Office and not the individual employees. In addition, many of the
documents on the system are subject to the attorney/client privilege and must be kept
confidential. The management of this office reserves the right to monitor the operation of the
system, to access all of the records within it, and to retain or dispose of those records as it deems
necessary and in accordance with the applicable laws. Subject to the policies set forth herein
below, employees may use the system to store their personal information and send occasional
messages. However, in doing so, the employees accept the organization’s right to ownership of
this system and acknowledge that they have no personal rights of privacy to any messages or
information placed in or received from the system.

      The following policies and procedure shall be adhered to with regard to the computer
network and related equipment maintained and utilized by the Caprock Regional Public
Defender Office.

Policies

1.     Employees are responsible for the proper use and maintenance of all Public Defender
       equipment, including any computers, terminals, printers and other equipment individually
       assigned to an employee.

2.     All employees are responsible to maintain the security of the network and the
       confidentially of all data on the network as required by Rule 1.05 of the Texas Rules of
       Professional Conduct and to the extent allowed by the Texas Open Records Act. All
       employees shall keep their passwords confidential and are prohibited from allowing any
       other person from accessing the network under their password.

3.     Client information shall only be accessed when necessary for the conduct of the business
       of the Caprock Regional Public Defender Office, and not for personal reasons or
       curiosity.


V.     Ethics:
       Each Assistant Public Defender is charged with the responsibility of strictly adhering to
The Texas Disciplinary Rules of Professional Conduct, the Texas Lawyer’s Creed and the laws
and constitution of the State of Texas and of the United States.


                                                 18
W.     Construction:
       In the event of a conflict between this Office’s Policies and Procedures Manual and the
Texas Tech University Operating Policies and Procedure Manual, the provision which is the
most restrictive shall control.




                                             19
Appendix A




    20
Job Title: Chief Public Defender                      Grade: Appointed FLSA: Exempt

Date: 10/01/10                                        Reports To: Law School Dean

SUMMARY: Appointed by the Director of the Office at the level of Adjunct
Professor/Instructor under the administrative direction of the Director of the Office; responsible
for managing all operations and administration of the Caprock Regional Public Defender Office
(Office); manages all daily activities involving personnel, case handling and resources; develops
and implements policies and procedures for the operations of the office and plans for future
development; provides legal representation for, or ensures defendants are represented in,
criminal proceedings and ensures their constitutional rights are upheld; serves as lead counsel in
some cases; oversees and participates in preparation, presentation and disposition of cases; and
cooperates with the Director and any authorized researchers.

ESSENTIAL DUTIES:

1. Directs, plans, manages and supervises the daily work activities of all professional and support
staff including the maintenance of required reports and invoices;

2. Maintains a regular caseload and provides backup on caseloads of attorneys who are on leave
or are unable to complete specific assignments;

3. Supervises student attorneys following the educational requirements and techniques
established by the Director toward the student’s full development of the advanced skills
necessary to practice law; 12

4. Makes temporary adjustments to caseload policies depending on the overall complexity of
certain cases, the type of cases, attorney experience, support staff experience, or other factors
affecting the delivery of services;

5. Assists the Director in developing organizational and personnel practices and procedures;

6. Assists the Director in writing a standard operating policies and procedures manual;

7. Provides a copy of the standard operating policies and procedures manual to the Oversight
Board or to the participating counties if requested;

8. Recruits, screens, hires, trains, monitors and evaluates staff and additional attorneys in a
manner consistent with the standard personnel policies and procedures of Texas Tech University;

9. Notifies the Texas Task Force on Indigent Defense in writing if additional attorneys are hired
so the budget may be revised to ensure appropriate tracking;

10. Maintains staff and attorneys at sufficient levels to effectively operate a public defender’s
office;



                                                 21
11. Notifies the Oversight Board in writing if exceptions to caseload standards are authorized;

12. Deploys a video-conferencing system that can provide connectivity between the public
defender’s office, the law school, the jails and courts of participating counties, and other private
detention facilities used by participating counties through secure networks to ensure the proper
protection of attorney-client confidentiality;

13. Requires attorneys, staff and student attorneys to participate in video-conferencing training to
ensure successful deployment of technology and to ensure attorney-client confidentiality;

14. Provides a breakdown of cases and courts hearing those cases that allows for each
participating county to comply with the reporting requirements of Texas Government Code §
71.0351(c);

15. Operates in a manner that meets the requirements of the Texas Fair Defense Act;

16. Monitors receipt of and make all case assignments to staff attorneys;

17. Screens all cases for conflicts of interest;

18. Provides analyses and advice to staff attorneys as needed;

19. Serves as departmental head in all communications with other entities;

20. Projects anticipated personnel needs, space allocations, and operating allowance needs;

21. Approves requisitions for the payment of invoices;

22. Maintains appropriate fiscal controls in all matters pertaining to expenses and purchases of
services, equipment, and supplies;

23. Prepares and administers the annual operating and capital budget for the Office and controls
budget expenditures to meet budget goals and requirements;

24. Pursues and administers grant funding functions when available;

25. Develops a strategic plan to identify and implement the long-term goals of the Office;

26. Allocates resources for services, equipment, facilities and finances;

27. Communicates with the Law School Dean and Clinic Director as directed;

28. Develops and establishes creative approaches to case management, budgetary restrictions or
other unique problems confronting the Office;




                                                   22
29. Interacts with state and local bar associations, various organizations and committees involved
in the improvement of justice and indigent representation systems and services;

30. Performs related duties as required;

31. Works with the Director in the implementation of the clinical programs as designed;

32. Cooperates with any authorized researchers;

33. Attends the weekly classroom component of the clinical section he supervises;

34. Provides legal advice to clients;

35. Interviews clients and witnesses to obtain information necessary for preparing a defense; 14

36. Participates in plea negotiation with prosecutors regarding pending cases;

37. Advises clients on plea offers, options, collateral consequence, and potential for success at
trial or other dispositions of cases;

38. Directs the work of other attorneys, investigators, legal/administrative assistants and student
attorneys in the preparation of a defense;

39. Seeks from the court any necessary funding for outside experts and investigation in the
preparation of a defense;

40. Performs legal research;

41. Searches resources and studies legal records and documents to obtain information applicable
to case issues under consideration and prepares appropriate documents;

42. Obtains documents by subpoena and other discovery methods;

43. Drafts briefs, motions, orders, subpoenas and other legal documents, as well as
correspondence and reports;

44. Identifies any affirmative or de facto defenses and tactical procedural choices for clients;

45. Prepares cases for court and conducts hearings and trials related to pending cases;

46. Provides narrative, descriptive entries in client files of opinions, impressions, and facts
collected;

47. Preserves any potential error for appellate points;




                                                 23
48. Advises clients of the constitutional rights waived by pleading guilty and the potential direct
and collateral consequences of a guilty plea;

49. Advises non-citizen clients of the specific immigration consequences of criminal convictions;

50. Selects juries, examines and cross-examines witnesses, drafts and argues jury instructions
and argues cases to the jury;

51. Staffs other cases assigned to the office with other attorneys and staff;

52. Responds to telephone calls from non-clients, family members of clients and walk-in
customers, including private attorneys seeking advice and counsel;

53. Agrees to acquiesce to the supervision and direction of the Clinical Director in the proper
clinical, educational techniques and best practices to provide the student attorneys a full, 15
rich educational environment and experience; and

54. Maintains the highest ethical standards of the profession.

55. Agrees to abide by any contractual agreements or grant award terms, conditions and/or
reports approved by the Dickens County Commissioners Court.

SPECIAL LIMITATIONS: The Chief Public Defender may not engage in the private practice
of criminal law or accept anything of value not authorized by Art. 26.044 of the Code of
Criminal Procedure for services rendered as a public defender.

QUALIFICATION REQUIREMENTS: J.D./LL.B. from an accredited law school and meet
the requirements of the Texas Code of Criminal Procedure Article 26.04 for appointment to all
felonies, misdemeanors and juvenile cases in the 7th and 9th Administrative Judicial Regions as
published by the individual counties in accordance with Art. 26, C.C.P., and as approved by the
Texas Task Force on Indigent Defense. Those qualifications, without limitation, include:

1. Be a member in good standing of the State Bar of Texas;

2. Exhibit proficiency and commitment to providing quality representation to defendants in
criminal cases;

3. Have trial experience in the use of and challenge to mental health or forensic expert witnesses
and investigating and presenting evidence at the penalty phase of a criminal trial;

4. Have substantial experience in the practice of criminal law with at least five years experience
practicing criminal law and during that time demonstrated that he or she has the required legal
knowledge and skill necessary to provide representation in felonies, misdemeanors and juvenile
cases and will apply that knowledge and skill with appropriate thoroughness and preparation;




                                                 24
5. Have tried to verdict as lead counsel a significant number of felony trials, including at least
one homicide trial and other trials for offenses punishable as first or second degree felonies or
capital felonies, showing substantial experience in the practice of criminal law;

6. Have participated and maintained compliance with the requirements of the State Bar of Texas
in continuing legal education courses or other training relating to defense in criminal cases

KNOWLEDGE, SKILLS, AND ABILITIES: Substantial knowledge and understanding of the
relevant state, federal and international law, both procedural and substantive, governing criminal
cases; considerable knowledge of the organizational, procedural and human aspects in managing
an organization. Skill in interviewing a variety of individuals and soliciting needed information
to determine facts and circumstances, in developing effective defense strategies, in analyzing
cases and applying legal principles, in presenting statements of law clearly and logically in
written and verbal form, in presenting an effective defense in court, and in preparing clear,
concise, accurate and effective legal, policy and procedural guidelines; skill in the management
and conduct of complex negotiations and litigation; skill in legal research, analysis, and the
drafting of litigation documents; skill in oral advocacy; skill in the use of expert witnesses and
familiarity with common areas of forensic investigation, including fingerprints, ballistics,
forensic pathology, and DNA evidence; skill in the investigation, preparation, and presentation
of punishment evidence; skill in the elements of trial advocacy, such as jury selection, cross-
examination of witnesses, and opening and closing statements; skill in supervising professional,
administrative and clerical employees; skill in managing multiple projects simultaneously; skill
in communicating effectively with diverse groups of individuals utilizing tact and diplomacy;
skill in preparing and administering budgets; ability to handle highly stressful criminal cases;
ability to develop strategic plans; ability to adjust to rapidly fluctuating situations; ability to
operate a personal computer and basic office equipment; ability to establish and maintain
effective working relationships with subordinates, co-workers, employees, governmental
department heads, elected/appointed officials, outside organizations, attorneys, the news media
and the general public.

PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant will be subject to sitting, standing, walking, reaching and handling to
perform the essential functions.




                                                 25
Job Title: Assistant Public Defender I         Grade: Appointed/Instructor FLSA: Exempt

Date: 4/1/11                                   Reports To: Chief Public Defender

SUMMARY: Appointed by the Chief Public Defender, is responsible providing legal
representation for defendants in criminal proceedings and ensuring their constitutional rights are
upheld, to serve as lead counsel in some cases, to oversee and participate in preparation,
presentation and disposition of cases, including misdemeanors, juvenile cases and felonies, and
to supervise, train and work with assigned student attorneys.

ESSENTIAL DUTIES:

1. Provides legal advice to clients;

2. Interviews clients and witnesses to obtain information necessary for preparing a defense;

3. Participates in plea negotiation with prosecutors regarding the pending case;

4. Advises clients on plea offers, options, collateral consequence, and potential for success at
trial or other dispositions of cases;

5. Directs the work of investigators, legal/administrative assistants and student attorneys in the
preparation of a defense;

6. Seeks from the Court any necessary funding for outside experts and investigation in the
preparation of a defense;

7. Performs legal research;

8. Searches resources and studies legal records and documents to obtain information applicable
to case issues under consideration and prepare appropriate documents;

9. Obtains documents by subpoena and other discovery methods;

10. Drafts briefs, motions, orders, subpoenas and other legal documents, as well as
correspondence and reports;

11. Identifies any affirmative or de facto defenses and tactical procedural choices for clients;

12. Prepares cases for court and conducts hearings and trials related to pending cases;

13. Provides narrative, descriptive entries in client files of opinions, impressions, and facts
collected;

14. Preserves any potential error for appellate points;



                                                 26
15. Advises clients of the constitutional rights waived by pleading guilty and the potential direct
and collateral consequences of a guilty plea;

16. Advises non-citizen clients of the specific immigration consequences of criminal convictions;

17. Selects juries, examines and cross-examines witnesses, drafts and argues jury instructions
and argues cases to the jury;

18. Staffs other cases assigned to the office with other attorneys and staff;

19. Responds to telephone calls from non-clients, family members of clients and walk-in
customers, including private attorneys seeking advice and counsel;

20. Supervises student attorneys in the full development of skills necessary to practice law;

21. Attends the weekly classroom component of the clinics;

22. Agrees to acquiesce to the supervision and direction of the Clinical Director in the proper
clinical, educational techniques to provide the student attorneys a full, rich education
environment and experience;

23. Cooperates fully with any researcher who has authorized access to the Office; and

24. Maintains the highest ethical standards of the profession.

SPECIAL LIMITATION: An Assistant Public Defender I may not engage in the private
practice of criminal law or accept anything of value not authorized by Art. 26.044 of the Code of
Criminal Procedure for services rendered as a public defender.

QUALIFICATION REQUIREMENTS: J.D./LL.B. from an accredited law school and meet
the requirements of the Texas Code of Criminal Procedure Article 26.04 for appointment to all
felonies, misdemeanors and juvenile cases in the 7th and 9th Administrative Judicial Regions as
published by the individual counties in accordance with Art. 26, C.C.P., and as approved by the
Texas Task Force on Indigent Defense. Those qualifications, without limitation, include:

1. Be a member in good standing of the State Bar of Texas;

2. Exhibit proficiency and commitment to providing quality representation to defendants in
criminal cases;

3. Have trial experience in the use of and challenge to mental health or forensic expert witnesses
and investigating and presenting evidence at the penalty phase of criminal trial;

4. At least two years experience in criminal law and during that time demonstrated that he or she
has the required legal knowledge and skill necessary to provide representation in felonies,



                                                 27
misdemeanors and juvenile cases and will apply that knowledge and skill with appropriate
thoroughness and preparation;

5. Have tried to verdict as lead counsel a significant number of trials;

6. Have participated and maintained compliance with the requirements of the State Bar of Texas
in continuing legal education courses or other training relating to defense in criminal cases.

KNOWLEDGE, SKILLS, AND ABILITIES: Substantial knowledge and understanding of the
relevant state, federal and international law, both procedural and substantive, governing criminal
cases. Skill in interviewing a variety of individuals and soliciting needed information to
determine facts and circumstances, in developing effective defense strategies, in analyzing cases
and applying legal principles, in presenting statements of law clearly and logically in written and
verbal form, in presenting an effective defense in court, and in preparing clear, concise, accurate
and effective legal, policy and procedural guidelines; skill in the management and conduct of
complex negotiations and litigation; skill in legal research, analysis, and the drafting of litigation
documents; skill in oral advocacy; skill in the use of expert witnesses and familiarity with
common areas of forensic investigation, including fingerprints, ballistics, forensic pathology, and
DNA evidence; skill in the investigation, preparation, and presentation of mitigating evidence;
skill in the elements of trial advocacy, such as jury selection, cross-examination of witnesses,
and opening and closing statements; skill in managing multiple projects simultaneously; skill in
communicating effectively with diverse groups of individuals utilizing tact and diplomacy;
ability to handle highly stressful criminal cases; ability to adjust to rapidly fluctuating situations;
ability to operate a personal computer and basic office equipment; ability to establish and
maintain effective working relationships with subordinates, co-workers, other employees,
governmental department heads, elected/appointed officials, outside organizations, attorneys, the
news media and the general public.

PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.




                                                  28
Job Title: Assistant Public Defender II        Grade: Appointed/Instructor FLSA: Exempt

Date: Anticipated within 2 years of 10-1-10 Reports To: Chief Public Defender

SUMMARY: Appointed by the Chief Public Defender, is responsible providing legal
representation for defendants in criminal proceedings and ensuring their constitutional rights are
upheld, to serve as lead counsel in some cases, to oversees and participate in preparation,
presentation and disposition of cases, including felonies, juvenile cases and misdemeanors, and
to supervise, train and work with assigned student attorneys.

ESSENTIAL DUTIES:

1. Provides legal advice to clients;

2. Interviews clients and witnesses to obtain information necessary for preparing a defense;

3. Participates in plea negotiation with prosecutors regarding the pending case;

4. Advises clients on plea offers, options, collateral consequence, and potential for success at
trial or other dispositions of cases;

5. Directs the work of investigators, legal/administrative assistants and student attorneys in the
preparation of a defense;

6. Seeks from the Court any necessary funding for outside experts and investigation in the
preparation of a defense; 20

7. Performs legal research;

8. Searches resources and studies legal records and documents to obtain information applicable
to case issues under consideration and prepare appropriate documents;

9. Obtains documents by subpoena and other discovery methods;

10. Drafts briefs, motions, orders, subpoenas and other legal documents, as well as
correspondence and reports;

11. Identifies any affirmative or de facto defenses and tactical procedural choices for clients;

12. Prepares cases for court and conducts hearings and trials related to pending cases;

13. Provides narrative, descriptive entries in client files of opinions, impressions, and facts
collected;

14. Preserves any potential error for appellate points;



                                                 29
15. Advises clients of the constitutional rights waived by pleading guilty and the potential
direct and collateral consequences of a guilty plea;

16. Advises non-citizen clients of the specific immigration consequences of criminal convictions;

17. Selects juries, examines and cross-examines witnesses, drafts and argues jury instructions
and argues cases to the jury;

18. Staffs other cases assigned to the office with other attorneys and staff;

19. Responds to telephone calls from non-clients, family members of clients and walk-in
customers, including private attorneys seeking advice and counsel;

20. Supervises student attorneys in the full development of skills necessary to practice law;

21. Attends the weekly classroom component of the clinics;

22. Agrees to acquiesce to the supervision and direction of the Clinical Director in the proper
clinical, educational techniques to provide the student attorneys a full, rich education
environment and experience;

23. Cooperates fully with any researcher who has authorized access to the Office; and

24. Maintains the highest ethical standards of the profession. 21

SPECIAL LIMITATION: An Assistant Public Defender II may not engage in the private
practice of criminal law or accept anything of value not authorized by Art. 26.044 of the Code of
Criminal Procedure for services rendered as a public defender.

QUALIFICATION REQUIREMENTS: J.D./LL.B. from an accredited law school and meet
the requirements of the Texas Code of Criminal Procedure Article 26.04 for appointment to all
misdemeanors and juvenile cases in the 7th and 9th Administrative Judicial Regions as published
by the individual counties in accordance with Art. 26, C.C.P., and as approved by the Texas Task
Force on Indigent Defense. Those qualifications, without limitation, include:

1. Be a member in good standing of the State Bar of Texas;

2. Exhibit proficiency and commitment to providing quality representation to defendants in
criminal cases;

3. Demonstrated that he or she has the required legal knowledge and skill necessary to provide
representation in cases assigned to the Office and will apply that knowledge and skill with
appropriate thoroughness and preparation;

4. Have participated and maintained compliance with the requirements of the State Bar of Texas
in continuing legal education courses or other training relating to defense in criminal cases.

                                                 30
KNOWLEDGE, SKILLS, AND ABILITIES: Substantial knowledge and understanding of the
relevant state, federal and international law, both procedural and substantive, governing criminal
cases. Skill in interviewing a variety of individuals and soliciting needed information to
determine facts and circumstances, in developing effective defense strategies, in analyzing cases
and applying legal principles, in presenting statements of law clearly and logically in written and
verbal form, in presenting an effective defense in court, and in preparing clear, concise, accurate
and effective legal, policy and procedural guidelines; skill in the management and conduct of
complex negotiations and litigation; skill in legal research, analysis, and the drafting of litigation
documents; skill in oral advocacy; skill in the use of expert witnesses and familiarity with
common areas of forensic investigation, including fingerprints, ballistics, forensic pathology, and
DNA evidence; skill in the investigation, preparation, and presentation of mitigating evidence;
skill in the elements of trial advocacy, such as jury selection, cross-examination of witnesses,
and opening and closing statements; skill in managing multiple projects simultaneously; skill in
communicating effectively with diverse groups of individuals utilizing tact and diplomacy.
Ability to handle highly stressful criminal cases; ability to adjust to rapidly fluctuating situations;
ability to operate a personal computer and basic office equipment; ability to establish and
maintain effective working relationships with subordinates, co-workers, other employees,
governmental department heads, elected/appointed officials, outside organizations, attorneys, the
news media and the general public.

PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye 22
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.




                                                  31
Job Title: Legal/Administrative Assistant – Office Manager Grade: Staff FLSA: Non-exempt

Date: 10/01/10                                                 Reports To: Chief Public Defender

SUMMARY: Under the general supervision of the Chief Public Defender, provides a variety of
complex and technical legal document preparation and other secretarial support to attorneys,
investigators and other staff, which are often confidential and may include the use of problem
solving skills and independent decision-making; prepares files and materials for use in court
appearances; acts as the office manager; and performs other duties as assigned.

ESSENTIAL DUTIES:

1. Working within critical deadlines, word processes a variety of legal documents, which may
include pleadings, motions, orders, warrants, petitions, subpoenas, witness lists, jury instructions,
voir dire questions, verdict forms, reports, general correspondence and other materials from
drafts, notes, verbal instructions, prior documents and dictated tapes;

2. Proofreads and edits drafts and completed materials for format, accuracy, grammar, spelling,
punctuation, English usage and consistency;

3. Performs a variety of general office support work on a relief or as-needed basis, including
maintaining accurate records and files and providing coverage for other assignments;

4. Uses a variety of office equipment such as computer terminals, printers, scanners, and copy
reproduction and FAX equipment as well as standard office software such as word processing,
spreadsheet and database applications;

5. Provides a variety of support to attorneys and student attorneys tracking and ensuring that all
documents have been prepared and processed and appropriate actions taken in a timely manner;
prepares periodic spreadsheets to track status of cases;

6. Verifies case law and code citations and quotations found in motions and other documents,
using the law library or electronic sources;

7. Coordinates the scheduling of appointments between attorneys and student attorney of the
Office and attorneys in the various District and County Attorney's Offices and defendants in jail
and on bond;

8. Obtains and maintains records regarding prior convictions for clients;

9. Assists with compilation of statistical data; 23

10. Acts as office manager ensuring that supplies are maintained, upkeep of the office is
sufficient, invoices are processed, purchase orders are processed as needed and other
administrative functions are properly carried out; and



                                                 32
11. Provides limited supervision to the other legal assistants, if any, and interns in the office,
ensuring that work is properly carried out as directed by the attorneys, student attorneys, and
investigators.

QUALIFICATION REQUIREMENTS: Any combination of education and experience that
would provide the individual the ability to be proficient in the essential duties listed. Applicant
must be able to type at a net rate of 50 words per minute. At least two years of experience in
processing legal documents in a court, criminal justice or legal office setting is preferred.

KNOWLEDGE, SKILLS, AND ABILITIES: Knowledge of legal office and criminal justice
system terminology, forms, documents and procedures, including ProDoc/SOS; knowledge of
the standard format for a variety of legal documents and forms, including briefs, motions,
opinions, subpoenas and warrants; knowledge of the use of specified computer applications
involving word processing, spreadsheets and standard report generation; knowledge of standard
office practices and procedures, including filing and the operation of standard office equipment;
knowledge of record keeping principles and practices; knowledge of correct business English,
including spelling, grammar and punctuation; general knowledge of the organizational,
procedural and human aspects in supervising within an organization; skill in independently
preparing a variety of legal documents and forms; skill in editing and reviewing for accuracy,
format and correct English usage technical and complex legal and court documents; skill in using
applicable legal office terminology, forms, documents and procedures in the course of the work;
skill in performing detailed legal office support work; skill in composing correspondence or
documents independently or from brief instructions; ability to be flexible and able to
competently perform in a variety of assignment areas; ability to use sound independent judgment
in following and applying appropriate laws, codes, regulations, policies and procedures; ability
to maintaining accurate legal office files; ability to organize one’s own work, set priorities, work
in a high volume setting and meet critical deadlines; ability to establish and maintain effective
working relationships with those contacted in the course of the work. Also, additional experience
in grant writing is preferred but not required.

PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.




                                                  33
Job Title: Investigator                        Grade: Staff FLSA: Non-exempt

Date: 10/1/12                                  Reports To: Chief Public Defender

SUMMARY: Under the general supervision of the Chief Public Defender, is responsible for
interviewing witnesses, clients and victims in the conduct of investigations; obtains, preserves,
records and analyzes evidence for the defense of clients represented by the Public Defender
Office; locates witnesses for the defense; and other duties as assigned.

ESSENTIAL DUTIES:

1. Plans, directs and conducts investigations to support the legal defense of criminal cases;

2. Establishes and maintains informant contacts to develop information relevant to cases;

3. Conducts surveillance stakeouts as necessary;

4. Identifies, locates and interviews clients to gather financial and factual statements for
screening and intake purposes;

5. Identifies, locates and interviews witnesses, complainants, law enforcement officials and
representatives of other agencies to gather information on events surrounding cases;

6. Contacts and maintains liaison with outside agencies and expert witnesses as reference
resources for potential testimony in highly specialized fields;

7. Locates, obtains, evaluates and preserves documentary evidence from a variety of sources;

8. Confers with attorneys and student attorneys on points of law and procedure;

9. Writes and dictates reports of contacts and findings including statements, scene descriptions
and analysis of physical evidence;

10. Appears as a witness and testifies at trials, hearings and motions;

11. Participates in training sessions;

12. Operates and maintains a variety of photographic, tape, graphic and projection equipment,
including being proficient in presentation software;

13. Prepares, presents, and maintains records and reports; and

14. Willingly accepts tasks and cooperates with other the attorneys, students attorneys and other
staff.




                                                 34
QUALIFICATION REQUIREMENTS: Three years of substantial criminal investigative
experience, paralegal experience, or related education, training and/or investigative experience
which provides the knowledge and skill requirements.

KNOWLEDGE, SKILLS, AND ABILITIES: Knowledge of the techniques, principles and
methods used in criminal investigations; knowledge of the methods and techniques of screening,
evaluating and preparing evidence and exhibits for trial; knowledge of the Texas Penal Code and
the Constitution; general knowledge of the criminal justice system, state department of
corrections and related agencies; skill to operate photographic, recording and graphic equipment;
skill to prepare and set up electronic presentations devices (i.e. PowerPoint, projectors, document
cameras, etc); ability to keep accurate notes and records; ability to prepare and present clear,
concise and comprehensive reports; ability to read and understand legal codes, cases and
technical material in such disciplines as medicine, physical and social sciences; ability to obtain
information through interview and interrogation; ability to assess the credibility of witnesses;
ability to gather and analyze facts and evidence and draw valid conclusions; ability to adjust to
workload changes and work under stress to meet deadlines; ability to organize and prioritize
workload to manager cases efficiently; ability to testify in court in a direct, clear and concise
manner; ability to establish and maintain effective working relationships with attorneys,
representatives of other agencies, clients, family member of clients, the public and co-workers.

PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.




                                                35
Job Title: Director                                   Grade: Appointed FLSA: Exempt

Date: Current through 09/30/11                        Reports To: Law School Dean

SUMMARY: Appointed by the Dean of the Law School at the level of Associate Professor and
under the administrative direction of the Dean of the Law School, is responsible for the initial
organization of the Office including all matters involving setting up the office, securing the
agreement with the Counties and the Task Force for Indigent Defense, the initial concept and
design, helping organize the Oversight Board whose primary responsibility will be to choose the
governmental entity or non-profit corporation to become the Public Defender Office, performing
the application and hiring process for the Chief Public Defender, to assist the Chief Public
Defender in the development and implementation of operating and administrative policies and
procedures for the Office and to make long range plans and set goals for future development.

ESSENTIAL DUTIES:

1. To conceptualize, design and implement the creation of the Office;

2. To help direct, plan, manage and supervise the work activities of the professional and support
staff during the first year;

3. To recruit, screen, select and train the Chief Public Defender, to assist the Chief Public
Defender with the selection of additional employees and to help monitor/evaluate staff
performance;

4. Help provide analysis and advice to staff attorneys as needed; 26

5. Assist the Chief Public Defender in developing organizational practices and procedures and
standard operating procedures and policies;

6. Until October 1, 2011, provide assistance to the Chief Public Defender in projecting personnel
needs, space allocations, and operating allowance needs while assisting in establishing
appropriate fiscal controls in all matters pertaining to reoccurring expenses and the purchase of
services, equipment, and supplies conforming policies and procedures to established operating
procedures of the University;

7. At all times to help develop a strategic plan to identify and implement the long-term goals of
the Office;

8. Help develop and establish creative approaches to case management, budgetary restrictions or
other unique problems confronting the Office;

9. To train instructors for the criminal clinical programs;

10. To supervise instructors and direct the establishment of proper syllabi and teaching procedure
and techniques;

                                                 36
11. To perform and supervise the classroom component for the clinics;

12. To work with the Chief Public Defender in outcome assessment and grading procedures for
the students;

13. To establish clinical manuals and procedures;

14. To train student attorneys and instructors on their duties and responsibilities;

15. To assist student attorneys in securing licensing from the State Bar of Texas;

QUALIFICATION REQUIREMENTS: J.D. from an accredited law school and be on staff at
the Law School as an Associate Professor or above, and be a member in good standing of the
State Bar of Texas.

KNOWLEDGE, SKILLS, AND ABILITIES: Substantial knowledge and understanding of the
relevant state, federal and international law, both procedural and substantive, governing criminal
cases; considerable knowledge of the organizational, procedural and human aspects in managing
an organization. Skill in interviewing a variety of individuals and soliciting needed information
to determine facts and circumstances, in developing effective defense strategies, in analyzing
cases and applying legal principles, in presenting statements of law clearly and logically in
written and verbal form, in presenting an effective defense in court, and in preparing clear,
concise, accurate and effective legal, policy and procedural guidelines; skill in the management
and conduct of complex negotiations and litigation; skill in legal research, analysis, and the
drafting of litigation documents; skill in oral advocacy; skill in the use of expert witnesses and
familiarity with common areas of forensic investigation, including fingerprints, ballistics,
forensic pathology, and DNA evidence; skill in the investigation, preparation, and presentation
of punishment evidence; skill in the elements of trial advocacy, such as jury selection, cross-
examination of witnesses, and opening and closing statements; skill in supervising professional,
administrative and clerical employees; skill in managing multiple projects simultaneously; skill
in communicating effectively with diverse groups of individuals utilizing tact and diplomacy;
skill in preparing and administering budgets. Ability to handle highly stressful criminal cases;
ability to develop strategic plans; ability to adjust to rapidly fluctuating situations; ability to
operate a personal computer and basic office equipment; ability to establish and maintain
effective working relationships with subordinates, co-workers, employees, Department Heads,
Elected/Appointed Officials, outside organizations, attorneys, the news media and the general
public.

PHYSICAL AND ENVIRONMENTAL REQUIREMENTS: Physical requirements include
lifting/carrying 25 lbs. occasionally; visual acuity, speech and hearing; hand and eye
coordination and manual dexterity necessary to operate computer keyboard and basic office
equipment. Applicant is subject to sitting, standing, walking, reaching and handling to perform
the essential functions.




                                                 37
                           
                           
                     Exhibit  H  
Curriculum  Vitae  &  Affidavit  of  Philip  Wischkaemper  
                               
                               
                               Philip Wischkaemper
                                         915 Texas Ave
                                      Lubbock, Texas 79401
                                           763-9900


            Director of Professional Development for the Lubbock Private Defender Office

            Assistant County Attorney                                                                  3/89 - 3/90
            HOCKLEY COUNTY ATTORNEYS OFFICE                                                         LEVELLAND, TX
            Supervisor:    Kirk Palmer
            Duties: Screening, filing and trial of misdemeanor and juvenile cases.

            Associate                                                                                   3/90 - 10/91
            WISCHKAEMPER & MARTINEZ, ATTORNEYS AT LAW                                                  LUBBOCK, TX
            SUPERVISOR:     Bill Wischkaemper
            Duties: Handling all aspects of a criminal trial practice including intake, trial preparation,
            Trial and appeals.

            Partner                                                                                     10/91 - 2/92
            KLINE & WISCHKAEMPER, ATTORNEYS AT LAW                                                     LUBBOCK, TX
            Duties: Handling all aspects of a criminal trial practice including intake, trial preparation,
            Trial and appeals.

            Partner                                                                                      2/92-10/94
            KLINE, SNUGGS & WISCHKAEMPER, ATTORNEYS AT LAW                                             LUBBOCK, TX
            Duties: Handling all aspects of a criminal trial practice including intake, trial preparation,
            Trial and appeals.

            Partner                                                                                   10/94 - 10/01
            SNUGGS & WISCHKAEMPER, ATTORNEYS AT LAW                                                    LUBBOCK, TX
            Duties: Handling all aspects of a criminal trial practice including intake, trial preparation,
            Trial and appeals. Also expanded practice into capital trial & post-conviction
            Practice.

            CAPITAL ASSISTANCE ATTORNEY                                                              10/01 – 10/10
            Texas Criminal Defense Lawyers Association                                               Lubbock, TX
            Supervisor:      Joseph Martinez, Executive Director, TCDLA
            Duties: Coordinating training, resources and technical assistance to attorneys
            representing citizens accused of capital crimes.

            Deputy Director                                                                       10/10 – 12/13
            Regional Public Defender for Capital Cases                                            Lubbock, Texas
            Supervisor: Jack Stoffregen, Chief Defender
            Duties: Assist Chief Defender

            Professional Development Director                                                     12/13 - Present
            Lubbock Private Defender Office
            Supervisor: Board of LPDO
            Duties: Insure quality representation for indigent clients in Lubbock County.
EDUCATION
            High School Diploma                                                                              5/74
            LUBBOCK CHRISTIAN HIGH SCHOOL                                                             LUBBOCK, TX

            Undergraduate Studies                                                                       >83 - >84
            SOUTH PLAINS JR. COLLEGE                                                                LEVELLAND, TX

            B.A. of General Studies - Emphasis in history                                                    7/86
            TEXAS TECH UNIVERSITY                                                                     LUBBOCK, TX
            GPA: 3.89
            MAGNA CUM LAUDE
                 Major:     General Studies with Emphasis in History

                 Minor:     Political Science and English

                 Doctor of Jurisprudence                                                                     5/89
                 TEXAS TECH UNIVERSITY SCHOOL OF LAW                                                  LUBBOCK, TX


BAR ADMISSIONS
                 Χ     Admitted in May 1989 to all Texas Courts.
                 Χ     Admitted in November 1989 to practice in The Northern District of Texas.
                 Χ     Admitted in November 1992 to practice in the United States 5th Circuit Court of Appeals.
                 Χ     Admitted in August 1997 to practice in the United States Supreme Court.

PROFESSIONAL
ASSOCIATIONS
                 #     Texas Criminal Defense Lawyers Association - Director
                 #     Lubbock Criminal Defense Lawyers Association - President 1994 - 1995
                 #     Texas Bar Association
                 #     Lubbock County Bar Association

INSTRUCTIONAL
EXPERIENCE
AND SEMINARS
ATTENDED

      •   Attendee-Brian Shechmeister Death Penalty College, Santa Clara, California, August, 2001
      •   Course Director and Presenter-2002 Capital Murder Seminar, Galveston, Texas, March, 2002
      •   Attendee-Life in the Balance, Kansas City, Missouri, March, 2002
      •   Faculty-First Annual Capital Trial Advocacy Course, Austin, Texas, January, 2002
                                                                            rd
      •   Attendee-NAACP Legal Defense and Educational Fund, Inc. 23 Annual Capital Punishment Training
          Conference, Airle Virginia, July, 2002
      •   Co-Course Director and Presenter, Texas Capital Defense Conference, Corpus Christi, Texas, October, 2002
      •   Co-Course Director and Presenter, (DNA Presentation) Post-Conviction Practice, Houston, Texas, January,
          2003
      •   Course Director-Capital Trial Advocacy-Future Dangerousness, Plano, Texas, January, 2003
      •   Faculty-Second Annual Capital Trial Advocacy Course, Plano, Texas, January, 2003
      •   Faculty-Texas Criminal Trial College, Huntsville, Texas, March, 2003
      •   Course Director, Texas Section-Life in the Balance, Austin, March, 2003
                        th
      •   Presenter-16 Annual Rusty Duncan Seminar and Meeting, San Antonio, Texas, June 2003
                                                                             th
      •   Attendee-NAACP Legal Defense and Educational Fund, Inc. 24 Annual Capital Punishment Training
          Conference, Airlie Virginia, July, 2003
      •   Course Director-Habeas Nuts and Bolts, Plano, Texas, July, 2003
      •   Co-Course Director-Capital Issues, McAllen, Texas, August, 2003
      •   Co-Course Director-Capital Issues 2003, MO Ranch, Hunt, Texas August 2003
      •   Course Director-First Annual Texas Forensics Seminar, Plano, Texas, August 2003
      •   Faculty-Third Annual Capital Trial Advocacy Course, Plano, Texas , January, 2004
      •   Course Director-Habeas Corpus Workshop, San Antonio, Texas, February, 2004
      •   Presenter-A day in the Life of a Criminal Defense Lawyer, College Station, Texas, February 2004
      •   Course Director and Presenter - El Paso Indigent Defense, El Paso, Texas, March, 2004
      •   Course Director and Presenter-Dallas Indigent Defense, Dallas, Texas, March, 2004
      •   Faculty-Cross Exam and Impeachment, Plano, Texas, May, 2004
•   Faculty-Trial Advocacy in Criminal Cases, Plano, Texas March 2004 Faculty-Capital Voir-Dire, Plano, Texas,
    July, 2004
•
•   Attendee-NAACP Legal Defense and Educational Fund, Inc. 25th Annual Capital Punishment Training
    Conference, Airlie Virginia, July, 2004
•   Presenter-Houston Bar Association (Post-Conviction Practice) Houston, Texas, July, 2004
•   Co-Course Director-Second Annual Texas Forensics Seminar, Plano, Texas, August, 2004
•   Faculty-National Institute for Trial Advocacy (Capital), Houston, Texas, September, 2004
•   Presenter-Death Penalty Defense, Warm Springs, Oregon, October, 2004
•   Co-Course Director and Presenter (DNA Presentation) Post-Conviction Seminar, Houston, Texas, January,
    2005
•   Co-Course Director-Capital Murder and Mental Health, Houston, February, 2005
•   Faculty-Texas Criminal Trial College, Huntsville, Texas, March, 2005
•   Faculty-Trial Advocacy in Criminal Cases, Plano, Texas, May 2005
•   Course Director-El Paso Indigent Defense Seminar, El Paso, Texas, May 2005
•   Course Director-Dallas Indigent Defense Seminar, Dallas, Texas, May, 2005
•   Presenter-Indigent Defense Certification, Houston, Texas, May 2005
•   Faculty-Capital Voir-Dire, Plano, Texas, June, 2005
•   Faculty-Cross Exam and Impeachment-Plano, Texas, August, 2005
•   Co-Course Director-Third Annual Texas Forensics Seminar, Dallas, Texas, September, 2005
•   Co-Course Director, Faculty and Presenter-Fourth Annual Capital Trial Advocacy Course, Plano, Texas,
    January 2005
•   Attendee-NAACP Legal Defense and Educational Fund, Inc. 26th Annual Capital Punishment Training
    Conference, Airlie Virginia, July, 2005
•   Co-Course Director and Presenter, Capital Murder Seminar, South Padre Island, Texas, November, 2005
•   Faculty-Cross Exam and Impeachment-Plano, Texas, December, 2005
•   Co-Course Director and Presenter-Capital Murder, Dallas, Texas, March 2006
•   Faculty- Texas Criminal Trial College, Huntsville, Texas, March 2006
•   Co-Course Director, El Paso Voir Dire Program, May 2006
•   Co-Course Director, Dallas Public Defender Program, May 2006
•   Co-Course Director, Experts and Pretrial Motions, Plano, Texas, May 2006
•   Co-Course Director and Faculty, Capital Trial Advocacy Program, Plano, Texas, May 2006
•   Presenter, Capital Murder Update, Rusty Duncan Advanced Course, San Antonio, Texas, June 2006
•   Co-Course Director and Faculty, Capital Voir Dire, Plano, Texas 2006
•   Attendee-NAACP Legal Defense and Educational Fund, Inc. 26th Annual Capital Punishment Training
    Conference, Airlie Virginia, July, 2006
•   Faculty, Criminal Trial Advocacy Program, Plano, Texas, August, 2006
•   Co-Course Director, Punishment Phase of a Capital Case, Plano, Texas August, 2006
•   Co-Course Director, Fourth Annual Forensics Seminar, Dallas, Texas, August 2006
•   Co-Course Director, Cross Examination Seminar, Plano Texas, November 2006
•   Co-Course Director, Padre Island Capital Murder Seminar, November 2006
•   Co-Course Director, Capital Voir Dire, Plano, Texas, April 2007
•   Course Director, Texas Track, Life in the Balance, Dallas, Texas, March 2007
•   Course Director, Habeas Corpus Litigation, Plano, Texas, March 2007
•   Co-Course Director, Punishment Phase at Trial, Plano, Texas, March 2007
•   Presenter, Annual Rusty Duncan Advanced Criminal Law Course, San Antonio, Texas, June 2007
•   Co-Course Director and Faculty, Capital Mitigation, Plano, Texas, July 2007
•   Presenter, State Advanced Criminal Law Course, Houston, Texas, July 2007
•   Co-Course Director and Faculty, Capital Trial Advocacy, Plano, Texas, August 2007
•   Faculty, Criminal Trial Advocacy Program, Plano, Texas, August 2007
•   Co-Course Director, One Day Capital Video Seminar, El Paso, Texas, August 2007
       •       Co-Course Director, Fifth Annual Forensics Seminar, Dallas, Texas, October, 2007
       •       Co-Course Director, Capital Murder Seminar, South Padre Island, Texas, November 2007
       •       Faculty, Cross Exam Seminar, Plano Texas, December 2007
       •       Faculty, Evidence Boot Camp, Plano, Texas, February, 2008
       •       Co-Course Director, Capital Murder, Habeas and Mental Health Seminar, San Antonio, Texas, February,
               2008
       •       Co-Course Director, Death of a Child Seminar, Plano, Texas, March 2008
       •       Co-Course Director, Capital Voir Dire Seminar, Plano, Texas, April, 2008
       •       Presenter, Rural Association for Court Administration, Waco, Texas, April 2008
       •       Co-Course Director, Capital Trial Advocacy, Plano, Texas May, 2008
       •       Presenter and Faculty, Indigent Defense-El Paso, Texas, May 2008
       •       Co-Course Director, One Day Capital Video Seminar, Tyler, Texas, June 2008
                                                                                  th
       •       Attendee-NAACP Legal Defense and Educational Fund, Inc. 28 Annual Capital Punishment Training
               Conference, Airlie Virginia, July 2008
       •       Co-Course Director, Mitigation Seminar, Plano, Texas, July 2008
       •       Co-Course Director, The mind and Criminal Defense, Plano, Texas, July, 2008
       •       Presenter, State Bar Advanced Criminal Law Course, San Antonio, Texas, July 2008
       •       Co-Course Director, Mitigation Seminar, Lubbock, Texas, August 2008
       •       Co-Course Director, Expert Witnesses in Capital Cases, Plano, Texas, August 2008
       •       Faculty, Presenter, Criminal Trial Advocacy Program, Plano, Texas, August 2008
       •       Co-Course Director, Sixth Annual Forensics Program, Dallas, Texas, October 2008
                            nd
       •       Presenter, 2 Annual Red Mass Ethics Seminar, Lubbock, Texas October 2008
       •       Presenter, SMU Capital Murder Clinic, Dallas, Texas, October 2008
       •       Co-Course Director and Presenter, Capital Murder Seminar, South Padre Island, Texas, November 2008
       •       Faculty, Cross Exam and Impeachment, Plano, Texas, December 2008
       •       Faculty, Evidence Boot Camp, Plano, Texas, January, 2009
       •       Co-Course Director, Capital Murder Seminar, Houston, Texas, February, 2009
       •       Co-Course Director, Capital Voir Dire, Plano, Texas May 2009
       •       Co-Course Director, Capital Trial Advocacy, Plano, Texas May 2009
       •       Co-Course Director, Mind and Criminal Defense, Plano, Texas, May, 2009
       •       Co-Course Director, Capital Mitigation, Plano, July 2009
       •       Presenter, State Bar Advanced Criminal Law Course, Dallas, Texas, July 2009
       •       Presenter, Criminal Defense Criminal Trial Skills and Trial Law Program, Plano, Texas, August, 2009
       •       Co-Course Director and Presenter, Experts, Plano, Texas, March 2010
       •       Co-Course Director, TCDLA Capital/Habeas Seminar, Austin, Texas February 2010
       •       Co-Course Director, Capital Voir Dire, Plano, Texas, March 2010
       •       Co-Course Director, Capital Trial Advocacy, Plano, Texas, May 2010
       •       Faculty, Capital Voir Dire, Plano, Texas 2011
       •       Presenter and Faculty, Trial Advocacy for Military Lawyers, Plano, Texas, August 2011
       •       Faculty, Capital Voir Dire, Plano, Texas 2012
       •       Co-Course Director, State Bar of Texas Advanced Criminal Law-Forensic Track, San Antonio, Texas, July
               2012
       •       Faculty, Capital Voir Dire, Houston, June, 2013
       •       Faculty, Nuts and Bolts, Lubbock, January 2014
       •       Faculty, Dallas Indigent Defense, February, 2014
       •       Faculty, El Paso Forensics and Experts, September, 2014


Publications

           •     Editor - Texas Criminal Defense Lawyers Trial Notebook
           •     Co-Author – Texas Punishment-A Source Book for Defense Lawyers
              •       Original Editor of Texas Criminal Defense Lawyers Penal Code and Code of Criminal Procedure
              •       Former Managing Editor – Texas Criminal Defense Lawyers Capital Litigation Update
              •       Original Editor of Texas Criminal Defense Lawyers Non-Penal Code Crimes Annotated

Trial Level Experience in Capital Cases*

                  •    United States v. Eli Mungia – Lubbock Division of the Northern District of Texas, 1994
                                                    nd
                  •    State v. Robert Salizar – 72 District Court of Lubbock County, Texas, 1998
                                                      th
                  •    State v. Eddie Rowton – 154 District Court of Lamb County, Texas, 1998
                                                        th
                  •    State v. Raymond Leyva – 64 District Court of Hale County, 1997
                                                   th
                  •    State v. Felton White – 137 District Court of Lubbock, County, 2000
                                                       st
                  •    State v. Michael Arispe – 121 District Court of Terry County, Texas 1996
                                                           th
                  •    State v. Eric Christensen – 364 District Court of Lubbock County, Texas 1998
                                                        th
                  •    State v. Jesus Rameriz – 154 District Court of Lamb County, Texas 1997
                                                          th
                  •    State v. Wesley Weaver - 237 District Court of Hockley County, Texas 1996
                                                                 th
                  •    State v. Arthur Wayne Johnson – 99 District Court, Lubbock County, Texas 2000
                                                              rd
                  •    State v. Michael Rodriguez – 283 District Court, Dallas County, Texas 2001**

      *I was appointed or hired as co-counsel on the above cases. Only 3 went to verdict as Death Penalty cases. The
      remainder were either plead or the state or government waived death.
      **I was hired as co-counsel on this case but withdrew prior to trial because I accepted a position as Capital Assistance
      Counsel for TCDLA.

  Post-Conviction Experience in Capital Cases

          •       Michael McBride v. Johnson
          •       Odell Barnes v. Johnson
          •       Michael Blair v. Johnson and Ex Parte Michael Blair
          •       Bobby Ray Hopkins v. Johnson
          •       Jaime Elizalde v. Dretke
          •       Joe Lee Guy v. Johnson
          •       Michael Rosales v. Johnson
          •       United States v. Bruce Webster
                                     AFFIDAVIT

THE ST A TE OF TEXAS                           §
                                               §
COUNTY OF LUBBOCK                              §

Before me, the undersigned authority, personally appeared Philip Wischkaemper, who upon his
oath deposed and stated the following:

        "My name is Philip Wischkaemper. My Texas Bar number is 21802750. I have
been licensed to practice law in Texas since 1989. I am also licensed in the Federal
District Courts of the Northern District of Texas, The United States Fifth Circuit Court
of Appeals and the United States Supreme Court.

        Currently, I work for the Lubbock County Private Defenders Office as the
Professional Development Director. My duties there include training all of the
appointed attorneys in Lubbock County, as well as overseeing and assisting the
appointed attorneys on their cases, as well as their overall progress as lawyers. My CV
is attached hereto and incorporated herein for all purposes as if set forth verbatim.

         Mr. Vargas's new attorney, Frank Sellers, approached me about this case. Prior
to executing this affidavit, I was furnished by Mr. Sellers a copy of his Motion for New
Trial, an Affidavit executed by his client, Mr. Vargas, an Affidavit executed by Mr.
Vargas' Mother, Darcy Vargas and the offense report of Trooper Garza, the arresting
officer.

        Mr. Sellers informed me that Vargas was represented by Lubbock-based
attorney Artie Aguilar. I also was informed that Aguilar was court-appointed due to
Vargas's indigent status. Sellers explained to me that Mr. Vargas was never shown any
of the discovery, never discussed the viability of a motion to suppress with his previous
attorney, never discussed a 38.23 jury instruction in the event a motion to suppress were
denied. Instead, Aguilar simply told Vargas that if he did not plead guilty, the 3-year
probation offer would be revoked, and Vargas would have to do 5-year probation (the
previous offer). I have also reviewed the motion for new trial and supporting exhibits.

       If these allegations are true, this would constitute deficient performance by Mr.
Aguilar during the guilty-plea process. As the Supreme Court made clear in Padilla v.
Kenlllcky, 130 S.Ct. 1473 (2010), the ABA Standards guide what is professionally
reasonable in representing a defendant during the guilty-plea process. The ABA
Standards applicable here provide:

       To aid the defendant in reaching a decision, defense counsel, after
       appropriate investigation, should advise the de fondant of the alternatives
       available and address considerations deemed important by defense
       counsel or the defendant in reaching a decision. Defense counsel should


Amdnvit of Philip Wischlrncmpcr - Page 1
        not recommend to a defendant acceptance of a plea unless appropriate
        investigation and study of the case has been completed.

ABA Standard 14-3.2. Responsibilities of defense counsel - Guilty Pleas.

        In my opinion, the following were important to Vargas in determining whether
to give up his right to trial: (1) the validity of the initial stop; (2) the validity of the
continued detention after the Trooper advised him he would receive a warning; (3) the
validity of Vargas's subsequent consent; (4) the potential success of a motion to
suppress; and (5) in the event the court denied the motion to suppress, whether those
issues could be raised at trial and at any subsequent appeal.

       Additionally, the Texas State Bar's Performance Guidelines for Non-Capital
Indigent Defense, Guideline 4.1: Investigation, state:

        Counsel has a duty to conduct, or secure the resources to conduct, an
        independent case review and investigation as promptly as possible.
        Counsel should, regardless of the client's wish to admit guilt, determine
        whether the charges and disposition are factuallv and legallv correct
        am/ i11for111 tlte clie11t ofpote11tial defe11ses to tile cltarges. Counsel
        should explore all avenues leading to facts relevant both to the merits
        and to the penalty in the event of conviction. (emphasis added).

        There is no evidence that I have been made aware, either by documentation or
conversations with Mr. Sellers that indicate Mr. Aguilar perfonned any of the functions
of a proper and thorough investigation and evaluation of the case as required by the
ABA and Texas Guidelines. If that is indeed the case, then Aguilar's performance fell
below accepted professional norms.

        In all fairness to Aguilar, he should be given the opportunity to respond to these
allegations. Sellers has also informed me that Aguilar has declined on multiple
occasions to speak about this case. In my opinion, the only way for him to be heard
would be for this Court to provide a live hearing.

        If the allegations of the client and client's mother prove to be true, it is also my
opinion that Vargas was prejudiced by Aguilar's deficient performance. The law is clear
that Vargas only has to show that had he been advised of these things, he would have
exercised his constitutional right to a jury trial. It is important to note that this is not a
hopeless case. In fact, each of the issues above seem meritorious based on the trooper's
police report, which I reviewed in forming the opinions in this affidavit. Generally, law
enforcement is not allowed to detain an individual just to "check on" the vehicle's
occupants. The trooper then goes onto say that he asked for consent "after the stop was
completed." This, too, seems to run afoul of the Fourth Amendment and Article 38.23.
(See: VS v. Dortch, 199 F. 3d 193 - Court of Appeals, 5th Circuit 1999) As Vargas
stated in his affidavit, had he been advised about whether a motion to suppress might be
successful or whether raising factual issues before the jury at trial might have been



Affidavit of Philip Wischkucmper -   Page 2
successful, he would have insisted on going to trial. Based on the facts of his case, this
would have been a perfectly reasonable decision in my opinion.

        Sellers also asked me to give background about the appropriate number of cases
for court-appointed attorneys. It is well known that Aguilar is responsible for all
indigent defense in the 106th District, which covers four counties. In addition, he
maintains an active trial practice. For our Lubbock County court-appointed attorneys,
our questioning of active lawyers has indicated that the maximum number of clients one
attorney can effectively represent at any given time is 65. Each of those clients may
have multiple cases, therefore, the caseload may be and usually is higher than 65. In
our experience, however, the focus should be on the client, and not the number of cases
a single client has.

         The nature of indigent defense is that many of our clients are incarcerated. Our
internal rule at the Lubbock Private Defender Office (Pursuant to the State Bar
Guidelines on Non-Capital Representation) is that each client must be contacted every
30 days to update them on their case. With as many as half and sometimes more of
their clients in jail at a given time, it is difficult for an attorney to fulfill his or her
obligations to more than the 65 client limit we impose. However, we still demand that
the attorney maintain regular contact and keep the client informed. From what I can tell
from the affidavits given and conferences with Mr. Sellers, Aguilar failed under State
Bar of Texas Guideline 1.3 B to "maintain regular contact with the client and keep the
client informed of the progress of the case.

        Mr. Aguilar is the Contract Attorney for the 1061h Judicial District. He covers
the counties of Dawson, Gaines, Garza and Lynn pursuant to a contract with the 1061h
Judicial District. In a review by the Indigent Defense task Force of Gaines County's
Indigent Defense System released in June, 2013, the report reflected:

               The monitor asked the contract attorney for the total number of
       cases to which he had been appointed in FY2012. The contract attorney
       reported that he had been appointed to 254 felony cases and two appeals
       cases across the four counties involved in the contract. In the monitor's
       visit with the contract attorney, the attorney noted that the contract
       represents about 60% of his total work. Based on the recommended
       caseload limitations set in the contract, if the contract attorney did no
       extra work outside of the contract, the attorney would be limited to 150
       felony appointments per year. The 254 felony appointments and two
       appeals appointments are equivalent to 1. 77 attorneys working at the
       maximum caseload recommendations. If the contract attorney's
       assessment that the contract comprises about 60% of his annual
       workload is accurate, 2.95 attorneys would be required to handle this
       annual workload. This caseload exceeds the limit set by the contract.

       It appears Mr. Aguilar is, as many public defenders are, overloaded. Because of
his excessive workload, he is unable to provide sufficient attention to each case



Affidavit of Philip Wischlmemper- Page 3
assigned to him. As a resul t, Mr. Vargas· case was compromised by not being fully
investigated factuall y nor analyzed suniciently for legu l issues. As a result, Mr.
Aguilar's conduct foll below professional norms and. as a result, Mr. Vargas was
pre_'udiced.




 hilip Wi schbempcr


Subscribed and sworn to before me on September<;2.q . 20 14. by Philip Wischkaemper.




 e              LORETTA MARTINEZ
               Nolllfy Put>lc, Slate of Tam
            My eommmi Expires 04'25-2016




Affida vit of Philip Wischlwcmper -       P age~
             
             
             
       Exhibit  I  
Affidavit  of  Frank  Sellers  
                 
                                        AFFIDAVIT

THE STATE OF TEXAS                              §
                                                §
COUNTY OF LUBBOCK                               §

Before me, the undersigned authority, personally appeared Frank Sellers, who upon his oath
deposed and stated the following:

   1. My name is Frank Sellers. I am over 18 years of age, have personal knowledge of the
      facts set forth below and am competent and authorized to make this affidavit. Following
      his guilty plea where he was represented by Artie Aguilar, I agreed to take over Victor
      Vargas's case as his pro bono counsel in an attempt to withdraw his guilty plea.

   2. On July 23, 2014, I was in the 106th District Court in Dawson County appearing on
      another matter. As I was gathering my belongings to leave, I observed Vargas enter his
      guilty plea. Outside of the courthouse, I overheard Vargas telling his Mom "he had no
      choice." I asked if they would agree to tell me what happened.

   3. Vargas and his mother then recounted the facts contained in their affidavits. Even though
      he had just entered his plea, Vargas told me it was not his intent to plead guilty but that
      Aguilar would not show him the video, police report, or lab report; instead, Aguilar told
      Vargas he could either plead guilty for a 3-year probation or a 5-year probation. Vargas
      informed me that Aguilar made clear he had no legal defense whatsoever. Without any
      personal review of the evidence or any advice on the law, Vargas thought he had to plead
      guilty.

   4. I agreed to represent Vargas pro bono with the hopes of withdrawing his plea. I contacted
      Philip Wischkamper who agreed to provide an affidavit. Wischkaemper also told me I
      should contact the Texas Indigent Defense Commission (TIDC) because they would be
      familiar with what was acceptable with respect to the appropriate caseload for court-
      appointed attorneys.

   5. I emailed with Jim Bethke, Executive Director of TIDC, who put me in touch with his
      staff. They sent me the report compiled on Gaines County from FY2012, as well as a
      letter in response from Judge Schildknect. It was apparent that Aguilar was completely
      overburdened with the contract he had signed with the I 06th District alone, yet he was
      still accepting private cases on the side.

   6. Vargas signed a release for Aguilar's file, which Aguilar provided me. After reviewing
      the file, it was clear that very little work had been done, and that no notes about discovery
      were in the file. Nor was there any transmittal letter that would customarily be sent to the
      client with a copy of his discovery. One note, presumably by Aguilar's staff, in Aguilar's
      Vargas file is particularly interesting: "2-13-14 Mom or daughter said it was ridiculous
      the way you were handling this case."
    7. In order to give Agui lar every opportunity to explai n what happened, I contacted
       Aguilar's office by telephone in August of20 14. Aguilar conveyed to my legal assistant
       that he "declined" to speak with me.

    8. I tried to speak with Aguilar a second time in the Dawson County courtroom on
       September 3, 2014. He told me be would not speak with me and that all I was trying to do
       was "make things difficult," because that is "all [I] ever do."

    9. I contacted Pam Huse, the Dawson County District Clerk, and requested the list of acti ve
       cases Agui lar had in that County at the time. In Dawson County alone, Aguilar had 47
       pending felony cases, 34 pending probation revocations, and I pending appeal . From
       personal knowledge, the pending appeal is on a case that I tried. The tri al lasted two
       weeks. Reading the record alone would take two full uninterrupted days, nevermind the
       complex legal issues that must be written on. I then contacted Lubbock County to see
       how many active cases Aguilar had in Lubbock (10 active, open criminal cases; and 10
       active, open civil cases). Just in Lubbock and Dawson counties alone, Aguilar is
       dangerously close to the maximum number of cases recommended by the ABA.

     10. IL is my opinion that the indigent defense system in the l06th District suffers systemic
         defects. Agui lar probably does the best he can given the confines of hi s budget and time
         restraints. Unfortunately, that is not enough, and Vargas suffered prejudice from
         Agui lar's deficient performance and lack of legal counsel.




Subscribed and sworn to before me on               October ~ 2014, by Frank Sellers.


            ~ lf!fj;··.        MARINA MEDRANO
            ;!b°.JJ{_i') MY COMMISSION EXPIRES
            ~ ·-.~~i';:••~f
            J     '' •1ou••'
                               February 14, 2017              1f\MlQJV:rrliJ~M)fl
                                                              Notary Public, State of Texas




Affid11vit of J~rnnl< Scllcrlj -    Pu~c   2
Tab #4
Notice of Appeal
10/24/2014        16:19    8067638199                    HURLEY &     GUINN                        PAGE    02/03
                                                                                               FILED
                                                                                      IN COURT OF APPEALS
                                                                                       ELEVENTH DISTRICT

                                                                                        OCT 2 8 2(M

                                               Cause No. 13-7245

             State of Texas                          §           In the 106th District Court
                                                     §
             v.                                                  of


             Victor Vargas                           §           Dawson County, Texas

                                              Notice of Appeal

     To The Honorable Judge Of Said Court:

                  Comes Now the Defendant in the above-styled and numbered cause, through
     his undersigned pro bono counsel, and files this notice of appeal. In support thereof
     Defendant would show this Honorable Court as follows:

                  On July 23, 2014 judgment and imposition of sentence was entered against the
     Defendant. Defendant timely filed a motion for new trial and requested a hearing. Despite
     these requests supported by affidavit, the court overruled the motion by operation of law on
     October 21, 2014. Therefore, this notice is timely filed.

                  Defendant hereby gives written notice of appeal to the Court of Appeals for the
    Supreme Judicial District of Texas, at Eastland, Texas, from the trial court's (1) denial of a
    hearing on his motion for new trial, and (2) the trial court's implicit legal ruling on his
    motion for new trial.

                                                         Respectfully submitted,

                                                         Hurley, Guinn & Sell




   Uj:
        o
                                                                  <rank Sellers
        o
   U_                                                                 Texas Bar No. 24080305
        o
        CO

                                                         1805 13th Street
        Q
                                                         Lubbock, Texas 79401
10/24/2014   16:19   8067638199                    HURLEY &    GUINN                     PAGE   03/03




                                                    P: 806.771.0700
                                                    F: 806.763.8199
                                                    Pro Bono CounselforDefendant-Appellant

                                      Certificate of Service

        I certify that today, October 24, 2014, a copy of the foregoing was served yp^on the
     Dawson County Distria Attorneys Office, viafax number 806-872-3174.
       Tab #5
Order to Show Cause (Oct. 28, 2014)
                                                                                                             FILE COPY




JIM R. WRIGHT
 CHIEF JUSTICE
                                                 Court of Appeals                                         SHERRY WILLIAMSON
                                                                                                                  CLERK


MIKE WILLSON
                                                Eleventh District of Texas                                 TELE: 254/629-2638
 JUSTICE                                           100 WEST MAIN STREET, SUITE 300                          FAX: 254/629-2191
                                                            P. O. BOX 271                             sherry.williamson@txcourts.gov
JOHN M. BAILEY
 JUSTICE                                               EASTLAND, TEXAS 76448                          www.txcourts.gov/11thcoa.aspx

                                                         October 28, 2014
             1
             Frank Sellers                                         Michael S. Munk, District Attorney
             * DELIVERED VIA E-MAIL *                              * DELIVERED VIA E-MAIL *

             RE:    Appellate Case Number: 11-14-00283-CR              Trial Court Case Number: 13-7245
             Style: Victor Vargas v. The State of Texas

                 Mr. Sellers is requested to respond immediately to sherry.williamson@txcourts.gov indicating
                                                       receipt of this notification.

                      We have this day received and filed a copy of the Notice of Appeal, Motion for New Trial, the
             Trial Court’s Certification of Defendant’s Right to Appeal and the trial court information form from the
             District Clerk in the above cause. This case bears the above docket number that should be used on all
             future correspondence and filings.

                     We note that the Notice of Appeal appears to be untimely filed in the trial court. The due date
             was October 21, 2014. TEX. R. APP. P. 26.2. The sentence was imposed on July 23, 2014; a Motion for
             New Trial was timely filed on August 22, 2014; and the Notice of Appeal was filed on October 24, 2014,
             93 days after the date that the sentence was imposed.

                     Appellant may file a Motion for Extension of Time to File the Notice of Appeal, providing a
             reasonable explanation for the failure to timely file the Notice of Appeal, which may include proof of
             mailing. The motion is due on or before November 5, 2014. TEX. R. APP. P. 10.5(b), 26.3. Absent a
             timely filed Notice of Appeal or Extension of Time to File the Notice of Appeal, this appeal may be
             dismissed for want of jurisdiction. TEX. R. APP. P. 25.2.

                     Upon reviewing the trial court’s Certification of Defendant’s Right of Appeal, it indicates
             Appellant waived his right of appeal. Appellant is requested to provide this Court with a response, in
             writing, showing grounds to continue this appeal. If the response is not filed on or before November 5,
             2014, the appeal may be dismissed.

             NOTICE: Effective January 1, 2014, e-filing is mandatory in the Eleventh Court of Appeals.
             Documents MUST contain an email address.

                                                                               Respectfully yours,




                                                                               Sherry Williamson, Clerk


             cc:      District Clerk - Dawson County (DELIVERED VIA E-MAIL)
                      Carter Schildknecht, Judge (DELIVERED VIA E-MAIL)
             Tab #6
Court of Appeals Opinion (issued Nov. 20, 2014)
Opinion filed November 20, 2014




                                     In The

        Eleventh Court of Appeals
                                  __________

                              No. 11-14-00283-CR
                                  __________

                  VICTOR JAMES VARGAS, Appellant
                                        V.
                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 106th District Court
                              Dawson County, Texas
                          Trial Court Cause No. 13-7245


                     MEMORANDUM OPINION
      The trial court convicted Victor James Vargas, Appellant, of the state jail
felony offense of possession of methamphetamine. Appellant attempts to appeal
that conviction. In a letter dated October 28, 2014, this court notified the parties
that the Trial Court’s Certification of the Defendant’s Right to Appeal, which was
signed by Appellant and his attorney, indicated that Appellant had waived his right
of appeal in this case. See TEX. R. APP. P. 25.2(a)(2), (d). We requested that
Appellant respond on or before November 5, 2014, and show grounds to continue
the appeal. Appellant filed a motion for extension of time to file his notice of
appeal, which this court granted, but he has not filed any response related to his
waiver of appeal.
      A valid waiver of appeal, whether negotiated or non-negotiated, prevents a
defendant from appealing without the trial court’s consent. Monreal v. State, 99
S.W.3d 615, 622 (Tex. Crim. App. 2003). Appellant has not obtained the trial
court’s consent to appeal, and Appellant’s waiver appears to be valid.         The
documents on file in this case indicate that Appellant and the State entered into a
plea agreement in which Appellant waived various rights and that, upon
Appellant’s plea of guilty, the trial court convicted Appellant and assessed his
punishment pursuant to the terms of the plea agreement. Appellant acknowledged
that he signed a waiver of his right to appeal. The plea papers are signed by both
Appellant and his counsel. Thus, the trial court’s certification—reflecting that
Appellant has waived his right of appeal—is supported by documentation and is
not defective. See Dears v. State, 154 S.W.3d 610 (Tex. Crim. App. 2005).
Because Appellant waived his right to appeal in this cause and because the trial
court certified that Appellant has no right of appeal, we must dismiss this appeal
without further action. TEX. R. APP. P. 25.2(d); Chavez v. State, 183 S.W.3d 675,
680 (Tex. Crim. App. 2006).
      Accordingly, this appeal is dismissed.


                                                   PER CURIAM
November 20, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

                                         2
          Tab #7
Motion for Rehearing (filed Dec. 31, 2014)
                                                                                                            ACCEPTED

                                                                                           ELEVENTH COURT OF APPEALS
                                                                                                     EASTLAND, TEXAS
                                                                                                  12/9/2014 11:14:52 AM
                                                                                                  SHERRY WILLIAMSON
                                        NO. 11-14-00283-CR                                                       CLERK


VICTOR VARGAS                                          §         IN THE COURT OF APPEALS
                                                       §                        RECEIVED IN
                                                                          11th COURT OF APPEALS
V.                                                     §         FOR THE ELEVENTH
                                                                             EASTLAND, DISTRICT
                                                                                          TEXAS
                                                                          12/9/2014 11:14:52 AM
                                                       §                    SHERRY WILLIAMSON
                                                                                   Clerk
THE STATE OF TEXAS                                     §         IN EASTLAND, TEXAS
       
                         Appellant’s  Motion  for  Rehearing  
                                                                          December 31 2014
     TO  THE  HONORABLE  JUSTICES  OF  THE  COURT  OF  APPEALS:  
       
                                     BACKGROUND  
                                               
        On  October  28,  2014,  this  Court  issued  a  letter  asking  Appellant  to  

     show   cause   why   he   should   be   allowed   to   appeal   after   he:   (1)   filed   a  

     late  notice  of  appeal,  and  (2)  waived  his  right  to  appeal.  Undersigned  

     counsel   filed   a   motion   to   extend   time   to   file   notice   of   appeal,   but  

     unfortunately  simply  missed  the  second-­‐‑to-­‐‑last  paragraph  asking  for  a  

     reasonable  explanation  for  why  Vargas  she  be  allowed  to  continue  his  

     appeal  post-­‐‑waiver.  

          While   no   excuse   typically   justifies   missing   deadlines,   undersigned  

     counsel  would  point  out  to  the  Court  that  at  that  time,  he  was  in  the  

     eighth   day   of   a   four-­‐‑week   capital   murder   jury   trial   styled,   State   v.  




                                                   1
Thomas   Michael   Dixon,   Cause   No.   2012-­‐‑435,942,   In   the   140th   District  

Court   of   Lubbock   County,   Texas.   Trial   in   Dr.   Dixon’s   lasted   for   four  

weeks  and  concluded  on  November  18,  2014.    

     In  light  of  this  and  the  reasons  below,  Appellant  asks  this  Court  to  

reinstate  his  appeal  and  allow  him  to  submit  a  brief  on  the  merits.    

                                    RELEVANT  FACTS    
                                              
     Prior  to  his  guilty  plea,  Appellant  Vargas  was  represented  by  court-­‐‑

appointed   counsel,   Artie   Aguilar.   After   his   guilty-­‐‑plea,   undersigned  

counsel   agreed   to   represent   Vargas   pro   bono   to   file   a   motion   for   new  

trial   attempting   to   reverse   Vargas’s   guilty   plea   because   it   was   both  

involuntary   and   the   result   of   ineffective   assistance   of   counsel.   The  

chronology  from  there  is  as  follows:  

• August  22,  2014:   Motion   for   New   Trial   filed   with   Dawson   County  

     District   Clerk.   Importantly,   this   motion   contained   the   following  

     exhibits:  affidavits  from  Victor  Vargas,  Darcy  Vargas,  Frank  Sellers,  

     as   well   as   the   arresting   officer’s   police   report,   and   the   lab   report  

     from  the  DPS  lab.  



                                                2
• September   19,   2014:   Defendant’s   Second   Request   for   Hearing   on  

   Motion  for  New  Trial  filed  with  Clerk.  

• October   3,   2014:   First   Amended   Motion   for   New   Trial   filed   with  

   Clerk.   This   motion   contained   the   following   additional   exhibits:  

   Contract  for  Indigent  Defense  in  the  106th  Judicial  District  Court  of  

   Texas   (file   marked   December   9,   2013);   Letter   from   Judge  

   Schildknecht   to   Joel   Lieurance,   Policy   Monitor   at   TIDC   (July   19,  

   2013);   Texas   Indigent   Defense   Commission,   Review   of   Gaines  

   County’s  Indigent  Defense  Systems  (June  11,  2013);  and  Affidavit  of  

   Philip  Wischkaemper.  

   It   is   beyond   dispute   that   the   timely   filed   motion   for   new   trial   and  

amended  motoin  for  new  trial  raised  matters  that  were  indeterminable  

from   the   record—whether   Vargas’s   guilty-­‐‑plea   was   voluntary   and  

whether   it   was   the   result   of   ineffective   assistance   of   counsel.  

Nevertheless,   the   trial   court   allowed   the   motion   to   overrule   by  

operation  of  law,  and  without  a  hearing.  

   Vargas   subsequently   filed   notice   of   appeal   of   the   trial   court’s   “(1)  



                                              3
denial  of  a  hearing  on  his  motion  for  new  trial,  and  (2)  the  trial  court'ʹs  

implicit  legal  ruling  on  his  motion  for  new  trial.”  (Appellant’s  Notice  

of  Appeal,  at  1).  

                       ARGUMENT  FOR  REHEARING  
                                          
     When   a   defendant’s   motion   for   new   trial   raises   issues   “not  

determinable   from   the   record,   which   could   entitle   him   to   relief,   the  

trial  judge  abuses  [his  or  her]  discretion  in  failing  to  hold  a  hearing.”  

Martinez  v.  State,  74  S.W.3d  19,  21  (Tex.  Crim.  App.  2002).  The  purpose  

of  the  hearing  is  to  “fully  develop  the  issues  raised  in  the  motion.”  Id.  

To   obtain   a   hearing,   “the   motion   must   be   supported   by   an   affidavit  

specifically  showing  the  truth  of  the  grounds  for  attack.”  Id.  Not  every  

element   must   be   established   “but   rather   must   merely   reflect   that  

reasonable   grounds   exist   for   holding   that   such   relief   could   be  

granted.”  Id.;  Reyes  v.  State,  849  S.W.2d  812,  816  (Tex.  Crim.  App.  1993)  

(“affidavit  is  not  required  to  reflect  every  component  legally  required  

to  establish  relief,  but  the  motion  for  new  trial  or  affidavit  must  reflect  




                                            4
that   reasonable   grounds   exist   for   holding   that   such   relief   could   be  

granted.”).  

     Bad  legal  advice  or  no  legal  advice  constitutes  ineffective  assistance.  

Ex   Parte   Moussazadeh,   361   S.W.3d   684,   692   (Tex.   Crim.   App.   2012)  

(misinforming   defendant   about   parole   eligibility   ineffective);   Ex   parte  

Gallegos,  511  S.W.2d  510,  513  (Tex.  Crim.  App.  1974)  (“In  applying  the  

reasonably  effective  assistance  standard  to  the  facts  of  the  instant  case,  

we   conclude   .   .   .   that   petitioner   Gallegos   was   denied   the   effective  

assistance  of  counsel  when  counsel  failed  to  advise  Gallegos  how  the  

facts   of   his   case   related   to   the   Texas   law   of   robbery,   thus   preventing  

the  guilty  plea  from  being  knowingly  and  voluntarily  entered.”).    

     The   federal   courts   agree.   In   Cavitt,   defense   counsel   advised   Mr.  

Cavitt   to   plead   guilty   following   a   traffic   stop   drug   case   with   Fourth  

Amendment   issues.   United   States   v.   Cavitt,   550   F.3d   430,   441   (5th   Cir.  

2008).   This   advice,   however,   came   before   the   defense   received   the  

video  of  the  stop.  Id.  When  defense  counsel  did  receive  the  video,  he  

refused  to  let  the  defendant  view  it  before  deciding  to  plead  guilty.  Id.  



                                              5
The  Fifth  Circuit  held  that  these  were  matters  indeterminable  from  the  

record  but  had  an  appreciable  chance  of  success  —  both  the  ineffective  

assistance   claim   and   the   suppression   issue.   The   Cavitt   court   reversed  

and  sent  the  case  back  to  the  district  court  and  required  a  hearing.  Id.  

     This   Court   must   do   the   same.   Matters   raised   are   indeterminable  

from   the   record.   No   one   knows   what   was   said   during   the   Aguilar’s  

representation   of   Appellant   Vargas.   Vargas’s   affidavit,   however,  

makes   clear   that   not   much   if   any   advice   was   given,   except   to   plead  

guilty,  while  refusing  to  let  Appellant  view  the  video  of  his  traffic  stop.  

Like   in   the   cases   cited   above,   Vargas’s   affidavit   established   matters  

that   reasonably   rose   to   the   level   of   ineffective   assistance   of   his   court-­‐‑

appointed   counsel.   Worse,   Aguilar   has   compounded   the   issue   by  

refusing   twice   to   provide   an   affidavit   or   even   speak   with   Vargas’s  

undersigned  counsel.  The  law  is  clear.  A  hearing  is  required.    

                        CONCLUSION  &  PRAYER  FOR  RELIEF  

     Wherefore,   Vargas   prays   this   Court   reinstate   his   appeal   and   allow  

him  to  more  fully  brief  the  issue  above.    



                                                6
                                                Respectfully  submitted,  

                                                  
                                                ___________________________  
                                                Frank  Sellers  
                                                Texas  Bar  No.  24080305  
                                                HURLEY,  GUINN  &  SELLERS  
                                                1805  13th  Street  
                                                Lubbock,  Texas  79401  
                                                806.771.0700  tel  
                                                806.763.8199  fax  
                                                frank@hurleyguinn.com  
                                                Attorney  for  Appellant  
  
                              CERTIFICATE  OF  SERVICE  
   Pursuant   to   TEX.   R.   APP.   P.   9.5(d),   the   foregoing   was   served   on  
opposing   counsel   via   email   to   michael.munk@co.dawson.state.tx.us on  
December  9,  14.    
  
  
                                                      _________________________  
                                                      Frank  Sellers  
                            CERTIFICATE  OF  COMPLIANCE  
   Pursuant   to   Texas   Rule   of   Appellate   Procedure   9.4(i)(2),   I   hereby  
certify   that   this   motion   contains   960   words   (excluding   the   caption,  
identification   of   the   parties,   index,   list   of   authorities,   signature,  
certification,   and   certificate   of   compliance).   This   is   a   computer-­‐‑
generated   document   created   in   Microsoft   Word,   using   14-­‐‑point  
typeface  for  all  text,  except  for  footnotes  which  are  in  12-­‐‑point  typeface.  
In   making   this   certificate   of   compliance,   I   am   relying   on   the   word  
count  provided  by  the  software  used  to  prepare  the  document.  
  
                                                      _________________________  
                                                      Frank  Sellers  


                                            7
                 Tab #8
     Denial of Motion for Rehearing (Jan. 22, 2015)
  
                                                                                                        FILE COPY




JIM R. WRIGHT
 CHIEF JUSTICE
                                               Court of Appeals                                     SHERRY WILLIAMSON
                                                                                                              CLERK


MIKE WILLSON
                                              Eleventh District of Texas                               TELE: 254/629-2638
 JUSTICE                                        100 WEST MAIN STREET, SUITE 300                        FAX: 254/629-2191
                                                         P. O. BOX 271                            sherry.williamson@txcourts.gov
JOHN M. BAILEY
 JUSTICE                                            EASTLAND, TEXAS 76448                            www.txcourts.gov/11thcoa

                                                     January 22, 2015

             Frank Sellers                                      Michael S. Munk, District Attorney
             Hurley & Guinn                                     Dawson County
             1805 13th Street                                   106th Judicial District
             Lubbock, TX 79401                                  P.O. Box 1124
             * DELIVERED VIA E-MAIL *                           Lamesa, TX 79331
                                                                * DELIVERED VIA E-MAIL *

             RE:    Appellate Case Number: 11-14-00283-CR
                    Trial Court Case Number:   13-7245
             Style: Victor James Vargas
                    v. The State of Texas

                    The Court has this day DENIED Appellant's motion for rehearing in the above cause.

                     A letter certifying compliance with TEX. R. APP. P.48.4 and a copy of the return receipt is
             due in this Court on or before February 6, 2015.

                    If either party wishes to file a Petition for Discretionary Review, please note:

                    1) Pursuant to TEX. R. APP. P. 68.3(a), the petition and all copies of the petition must be
                       filed with the Clerk of the Court of Criminal Appeals; and

                    2) Pursuant to TEX. R. APP. P. 68.4(i), a copy of this Court’s opinion must be attached to
                       each copy of the Petition for Discretionary Review.

                                                                            Respectfully yours,



                                                                            Sherry Williamson, Clerk
