ORDER NO. 30982
INTERLOCAL AGREEMENT WITH BEXAR COUNTY APPELLATE PUBLIC
DEFENDER'S OFFICE
Came to be heard this the 8th day of September, 2008, with a motion made by
Commissioner Letz, seconded by Commissioner Oehler. The Court unanimously
approved by a vote of 4-0-0 to:
Approve entering into an Interlocal Agreement with Bexar County Appellate Public
Defender's Office, and authorize appointment of that office for indigent defendant
appeals of criminal cases from Kerr County Courts.
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COMMISSIONERS' COURT AGENDA REQUEST
PLEASE FURNISH ONE ORIGINAL AND TEN (10) COPIES OF THIS
REQUEST AND DOCUMENTS TO BE REVIEWED BY THE COURT
~~2-~"°'~----
MADE BY: Judge Tinley OFFICE: County Jud~
MEETING DATE: September 8, 2008 TIME PREFERRED:
SUBJECT: Consider, discuss and take appropriate action to enter into Interlocal
Agreement with Bexar County Appellate Public Defender's Office to authorize
appointment of that office for indigent defendant appeals of criminal cases from Kerr
County Courts.
EXECUTIVE SESSION REQUESTED: (PLEASE STATE REASON)
NAME OF PERSON ADDRESSING THE COURT: Judge Tinley
ESTIMATED LENGTH OF PRESENTATION:
IF PERSONNEL MATTER -NAME OF EMPLOYEE:
Time for submitting this request for Court to assure that the matter is posted in
accordance with Title 5, Chapter 551 and 552, Government Code, is as follows:
Meeting scheduled for Mondays:
THIS REQUEST RECEIVED BY:
THIS RQUEST RECEIVED ON:
5:00 PM previous Tuesday
@ .M.
All Agenda Requests will be screened by the County Judge's Office to determine if adequate
information has been prepared for the Court's formal consideration and action at time of Court
Meetings. Your cooperation will be appreciated and contribute towards your request being
addressed at the earliest opportunity. See Agenda Request Rules Adopted by Commissioners'
Court.
S,~P'CE OpT
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Bexar County Appellate Public Defender's Office
Heritage Plaza • 410 S. Main, Suite 214 • San Antonio, TX 78204
Phone (210) 335-0701 • Fax (210) 335-0707
August 22, 2008
The Honorable Pat Tinley
Commissioner's Court
Kerr County
700 E. Main Street
Kerrville, Texas 78028
Hello, County Officials and leaders! This letter is a follow-up to the letter
sent in July regarding the Regional Pilot Project's transition from accepting
appellate appointments for free, to accepting appointments under a fee for
services plan. After speaking with Jim Bethke of the Task Force on Indigent
Defense, I realized that there may be some confusion regarding some of
the information contained in that letter. I am writing to clarify that
information as well as sharing information regarding the procedure for
continued participation in our Project. I have been very pleased with the
letters and phone calls regarding continued participation. They have been
overwhelmingly positive.
In my previous letter, I stated that the Task Force would likely look
unfavorably upon requests for assistance in paying for extraordinary
expenses if the county requesting the extraordinary disbursement had not
participated in the available free Projects subsidized by the Task force. I
included that information in an effort to be fair in alerting the counties about
this possibility. However, it has come to my attention after discussions with
Mr. Bethke of the Task Force for Indigent Defense that regretfully, I may
have inadvertently left the impression that this statement was reflective of
current Task Force policy; it is not. The Task Force currently has no policy
preventing counties from requesting assistance for extraordinary
circumstances. This possible policy change may be discussed at future
Taskforce Meetings.
By no means is your county required to use the services of our office. We
are simply another alternative available to your trial court judges, in addition
to whatever procedures they have previously used to appoint counsel on
'`'~"' appeals. Your participation in the pilot project over the past several months
has allowed your county the opportunity to use our services free of charge,
thanks to a grant from the Task Force. Pursuant to the inter-local
agreement, as well as our agreement with the Task Force, the free appeals
will end, and beginning October 1, 2008, we will accept appointments
under a fee for services plan.
The intention of the "Pilot Project" was to give you the opportunity to
evaluate our services, and to allow us to determine whether a regional
appellate public defender's office is feasible. After working with the various
counties, we have concluded the most practicable way we can continue
representing clients from other counties is through a fee for services plan.
The concept of a cooperative regional plan where counties can share
resources by "buying in" much like an insurance policy, while a noble
concept, appears to be unworkable due to the laborious task of having 32
counties in the Fourth Court of Appeals district all agree to participate,
along with the commissioner's court and trial courts of those counties.
Your thoughts and concerns on the idea of a regional project perhaps
~"` subsidized by the State, are important. The Legislature will be discussing
the issues surrounding indigent representation during this coming session.
I will be creating a report for the Task Force which will be shared with the
Legislative committee outlining problems, successes, and suggestions.
While your county's trial courts are not required to use our services through
the fee for services plan, I hope that you will consider doing so. We offer a
number of benefits that are just not possible with an appointed counsel
system. There is a much greater degree of consistency when using our
office as opposed to outside counsel. Additionally, we specialize in criminal
appellate work. That expertise allows us to provide a high level of
representation, often with a quicker turnaround than appointed counsel.
Additionally, in some of the more rural counties where appeals are a rarity,
I understand that it may be difficult to find qualified counsel to accept such
appointments. Our office stands ready to fill that gap.
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Our fee schedule is as follows:
Misdemeanor appeals-- $75 per hour
Felony appeals--/juvenile $100 per hour
Capital appeals--$125 per hour
It will be necessary for your county to enter into an interlocal agreement so
that our office can be paid for work we perform on appointments. The
agreement does not bind your trial judges to appoint us, but will provide the
mechanism under which we can be paid, since payment will be to a county
entity rather than to an individual attorney. A copy of that interlocal
agreement is enclosed for your review.
Our office will continue to accept appointments on a free basis through
September 30, 2008. If your county wishes to continue using our office,
please execute the enclosed interlocal agreements, and return it to me as
soon as possible. We have enclosed two originals and one copy. Please
execute both originals and return to us. The copy is for your records. After
we receive the originals, we will gather the Bexar County officials'
signatures and send a completed copy back to you.
In order for a seamless transition, I would ask you return the agreement by
September 26, 2008, so that there is no gap between the end of the trial
period and the beginning of the fee for services period.
Please do not hesitate to contact me with any questions or concerns you
have. I look forward to hearing from you and hope you will consider
continuing to use our services for your criminal appellate needs.
Regardless of whether your court or county hires the APDO on appellate
cases, we shall remain as a resource to you, if your public defender, or
appointed counsel should have appellate questions.
~~~ncerely, ~n__' 7
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Angela ' . Mo
Chief Appellat Public Defender
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INTERLOCAL AGREEMENT FOR REGIONAL INDIGENT APPEALS
This interlocal agreement (the "Agreement") is made by and between BEXAR COUNTY,
TEXAS ("BEXAR"),apolitical subdivision of the State of Texas, acting through the Bexar County
Public Defender office (the "PD"), and ~~-~ ~~ ~~ COUNTY, TEXAS (" FARTIC IPANT"'), a
political subdivision of the State of Texas (also, individually, a "Party" or, collectively, the "Parties"),
This Agreement is made pursuant to the Fair Defense Act, Texas Code of Criminal Procedure Article
26.44(b), and Texas Government Code Chapter 791.
RECITALS
WHEREAS, each Party finds: 1) that the subject of this Agreement is necessary for the benefit
of the public; and 2) that it has the legal a~ahority to pertorm and to provide the government function or
service which is the subject matter of this Agreement; and
WHEREAS, the performance of this Agreement by BEXAR and PARTICIPANT will be in the
Gammon interest of the Parties;
NOW, THEREFORE, the Parties agree as follows:
ARTICLE I
PROGRAM
1.01 Proeram Purpose. The Bexar County Appellate Public Defender office (the "PD")will provide
court-appointed counsel on appeal to persons in the participating counties who have been convicted of a
crime and cannot afford to hire their own attorney (the "Program") on afee-for-service basis. rThe PD
may accept appointments from the convicting court.
1.02 Judges Authorized to Appoint PD. Both county and district courts may participate in the
Program. The Program allows the Honorable(s) Judges of the Judicial District and the County and
County Court-at-Law Judges having jurisdiction within PARTICIPANT's geographic boundaries to
appoint the PD for the appeals of all eligible cases. The Program covers bath adult offenders and
juvenile respondents. In the event of a conflict of interest among defendants or a legal liability for the
PD to accept appointment, the PD will notify the appointing Judge so that he or she may appoint an
attorney other than the PD. The PD will stop accepting new cases when the PD determines that to do so
is necessary in order to complete all cases it has already accepted to ensure effective assistance oi'
counsel. The PD will notify the PARTICIl'ANT of the date on which it will stop accepting new cases.
1.03 Duties and Responsibilities of the PD. The PD will represent appellants on direct appeal anly.
All decisions pertaining to the presentation of the appeal will be the sole discretion of the PD, including
but not limited to determination as to pursue appellate remedies beyond the intermediate court of
appeal, communications with the appellant, and whether or not the appeal has merit or is frivolous. 'The
PD will at all times be guided by and comply with his or her duties as a licensed attorney in the State of
Texas and the Texas Disciplinary Rules of Professional Conduct in making these determinations.
ARTICLE II
FEES AND EXPENSES
2.01 Services. PARTICIPANT will pay for the services rendered by the PD hereunder at the. rate
of $75 per hour for misdemeanor appeals, $100 per hour for felonies and juvenile appeals, and $125 per
hour on capital murder (death penalty) appeals. Upon receipt of an invoice for services, PARTICI PANS'
will timely pay BEXAR by forwarding a check payable to the Bexar County Clerk to:
Bexar County Auditor
212 Stumberg, Suite 100
San Antonio, TX 78204
2.02 Records and Mailing. PARTICIPANT will pay for preparation of each appellate record and
will also have a copy of that record timely mailed or delivered to the PD. The PD will pay the cost
associated with mailing or delivering the record to PAPTICIPANT once the appeal is concluded,
ARTICLE III
OTHER TERMS AND CONDITIONS
3.01 Term of Agreement. The term o f this Agreement shall begin on October 1, 2008 and terminate
September 30, 2009. On each successive anniversary of the beginning of this Agreement, it will.
automatically renew for a new one-year term unless e~+her Party gives the other Party fi0 days notice of
its intent to terminate the Agreement
3,02 Notice and Addresses. Unless otherwise specifically provided herein, all notices, reports, and
invoices required under this Agreement shall be given in person or by certified or registered mail,
addressed to the proper Party, at the following address:
ffrn RF.XAR~
Honorable Nelson W. Wolff
County Judge
Bexar County
100 Dolorosa
San Antonio, Texas 78205-3028
And:
Angela J. Moore
Chief, Bexar County Appellate Public Defender
410 S. Main, Ste. 214
San Antonio, Texas 78204
If to PARTICIPANT:
3,03 No Partnership. Nothing contained in this Agreement is intended to create a partnership or joint
venture between the Parties and any implication to the contrary is hereby expressly disavowed. This
Agreement does not create a joint enterprise, nor does it appoint any Party as an agent of the other Party,
for any purpose whatsoever.
3.U4 Waiver. The failure of any Party to insist upon the performance of any term or provision of this
Agreement or to exercise any right granted hereunder shall not constitute a waiver of that Party's right
to insist upon appropriate performance or to assert any such right on any future occasion.
3.05 Venue. If any action, whether real or asserted, at law or in equity, arises on the basis of any
provision of this Agreement, venue for that action shall lie in state courts located in Bexar County,
Texas. This Agreement shall be construed in accordance with the laws of the State of Texas.
3.06 Benefit of the Parties. The terms and conditions of this Agreement are solely for the benefit of
the Parties and are not intended to create any rights, contractual or otherwise, far any other person or
entity.
3.07 Force Maieure. If the performance of any obligation under this Agreement is delayed by
something reasonably beyond the control of the Party obligated to perform ("Force Majeure"), that Party
shall be excused from performing the obligation during that period, so that the time period applicable to
the performance shall be extended for a period of timQ equal to the period that Party was delayed due to
the event of Force Majeure.
3.0$ Severability. In case any one or more of the provisions contained in this Agreement is for any
reason be held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or
unenforceability will not affect any other provision and this Agreement will be construed as if the
invalid, illegal, or unenforceable provision had never been contained herein.
3.09 Prior Agreements Superseded. This Agreement constitutes the only agreement of the Parties
and supersedes any prior understandings or written or oral agreements between the Parties respecting
the within subject matter.
3.10 Amendments. In order to be binding, an amendment to this Agreement must be in writing,
dated subsequent to the date of this Agreement, and executed by the Parties.
SIGNED AND EXECUTED this day of
COUNTY OF BEXAR
By: .._
Honorable Nelson W. Wolff
County Judge
ATTEST:
BY;
Gerard Rickhoff
County Clerk
APPROVED AS TO LEGAL FORM:
Susan Reed
Criminal District Attorney
Bexar County, Texas
BY:
Kelsey Menzel
Assistant District Attorney
-Civil Section
APPROVED AS TO FINANCIAL CONTENT:
BY:
Tommy Tompkins
County Auditor
BY;
David Smith
County Budget Officer
APPROVED:
BY: _
Keith L. Charlton, Jr.
Executive Director, Criminal Justice
Planning and Coordination
2008.
COUNTY OF ~ €~,`~, ~ - _
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```~ Honorab e~ ~r % s~r..~ ~=~`
County Judge
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~~ AL AGREEME FOR REGIONAL INDIGENT APPEALS
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This interlo 1 agreement (the Agreement') is made b"y and between BEXAR COiTNTY,
TEXAS ("BEXAR ), .apolitical subdivis'a of th State of Texas, acting through the Bexar County
Public Defender o (the "PD"), and ~[ COUNTY, TEXAS. ("PARTICIPANT"), a
political subdivisio of the State of Texas (also, individually, a "Party" or, .collectively, the "Parties").
This Agreement is ade pursuant to the Fair Defense Act, Texas Code of Criminal Procedure Article
26.44(b), and Texas Government Code Chapter 791.
RECITALS
WHEREAS each Party finds: 1) that the subject ofthis Agreement is necessary for the benefit
of the public; and 2) at it has the legal authority to perform and to provide the government function or
service which is the ubject matter of this Agreement; and
WHEREAS the performance of this Agreement by BEXAR and PARTICIPANT will be in the
common interest of a Parties;
NOW, THE~tEFORE, the Parties agree as follows:
ARTICLE I
PROGRAM
1.01 Program Pn ose. The Bexar County Appellate Public Defender office (the "PD")will provide
court-appointed co el on appeal to persons in the participating counties who have been convicted of a
crime and cannot aff rd to hire their own attorney (the "Program") on afee-for-service basis. The PD
may accept appoin nts from the convicting court.
1.02 Judges Authorized to ADpaint PD. Both county and district courts may participate in the
Program. The Progr~m allows the Honorable(s) Judges of the Judicial District and the County and
County Court-at-Lavin Judges having jurisdiction within PARTICIPANT's geographic boundaries to
appoint the PD for tl~e appeals of all eligible cases. The Program covers both adult offenders and
juvenile respondents.' In the event of a conflict of interest among, defendants or a legal liability for the
PD to accept appoin ent, the PD will notify the appointing Judge so that he or she may appoint an
attorney other than th PD. The PD will stop accepting new cases when the PD deten~nines that to do so
is necessary in order ~ to complete all cases it has already accepted to ensure effective assistance of
counsel. The PD will'~;notify the PARTICIPANT of the date on which it will stop accepting new cases.
1.03 Duties an onsib of the PD. The PD will represent appellants on direct appeal only.
All decisions Pe ' ' g to the presentation of the appeal will be the sole discretion of the PD, including
but not limited to determination as to pursue appellate .remedies beyond the intermediate court of
appeal, communicati with the appellant, and whether or not the appeal has merit or is frivolous. The
PD will at all times be: guided by and comply with his or her duties as a licensed attorney in the State of
Texas and the Texas l~hisciplinary Rules of Professional Conduct in making these determinations.
~.
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ARTICLE II
FEES AND EXPENSES
2.01 S rvices.
of$75 per hour for
hour on .capital roan
will timely pay BE.
2.02 Records a
will also have-a c
associated with m
PARTICIPANT will pay for the services rendered by the PD hereunder at the rate
demeanor appeals, $100 per hour for felonies and juvenile appeals, and $125 per
(death penalty) appeals. Upon receipt of an invoice. for services, PARTICIPANT
t by forwarding a check payable. to the Bexar County Clerk to:
Bexar Coumy Auditor
212 Stumberg, Suite 100
San Antonio, TX 78204
M~& PARTICIPANT will pay for preparation of each appellate record and
of that record timely mailed or delivered to the PD. The PD will pay the cost a
g or delivering the record to PARTICIPANT once the appeal is concluded.
ARTICLE III
OTHER TERMS AND CONDTI'IONS
3.01 Term of Asr neat. The term of this Agreement shall begin on October 1, 2008 and tenni<~ate
September 30, 2009. On each successive anniversary of the beginning of this Agreement, it will
automatically renew r a new one-year term unless either Party gives the. other Party 60 days notice of
its intent to terminate a Agreement
3.02 Notice and A dresses. Unless otherwise specifically provided herein, all notices, reports, and
invoices required and • this Agreement shall be given in person or by certified or registered mail,
addressed to the prop Parry, at the following address:
If to BEXAR:
Honorable Nelson W. Wolff
Countyt Judge
Bexar ~;ounty
100 Ddlorosa
San A~tonio, Texas 78205-3028
And:
Angel$~J-Moore .__ - _.. ___ .. _ _ _ -- _ _._-
Chie~ ~exar County Appellate Public Defender
410 S. ~Vlain, Ste. 214
San Anton, Texas 78204
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If to PARTICIP.
3.03 No Partner.
venture between the
Agreement does not
for any purpose whE
hip. Nothing contained in this Agreement is intended to create a partnership or joint
Parties and any implication to the contrary is hereby expressly disavowed. This
create a joint enterprise, nor does it appoint any Party as an agent ofthe other Party,
3.04 Waiver. Th failure of any Party to insist upon the performance of aay term or provision of this
Agreement or to ex ise any right granted hereunder shall not constitute a waiver of that Party's right
to insist upon. appro 'ate performance or to assert-any such right on any. future occasion.
3A5 Vcnue. If y action, wh~her real or asserted, at law or in equity, .arises on the basis of any
provision of this A went, venue for that action shall lie in state courts located in Bexar County,
Texas. This A ent shall be construed in accordance with the laws of the State of Texas.
3.06 Igei efi of th ie Par .The terms and conditions of this Agreement are solely for the benefit of
the Parties and are n t intended to create any rights, contractual or otherwise, for any other person or
entity.
3.07 For a Ma e r . If the performance of any obligation under this Agreement is delayed by
something reasonabl beyond the control of the Party obligated to perform ("Force Majeure"),that Party
shall be excused fro performing the obligation during that period, so that the time period applicable to
the performance steal be extended for a period of time equal to the period that Party was delayed due to
the event of Force jeure.
3.08 Severabiiity. In case aay one or more of the provisions contained in this Agreement is for any
reason be held to invalid, .illegal, of unenforceable in any respect, that invalidity, illegality, or
unenforceability wil not affect any other provision and this Agreement will be construed as if the
invalid,. illegal, or uneenforceable provision had never been contained herein.
3.09 Prior A¢ree,s Suoerceded. This Agreement constitutes the only agreement ofthe Parties
and supersedes anyp for understandings or written or oral agreements between the Parties respecting
the within subject matter.
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3..10 en . In order to be binding, an amendment to this Agreement must be in writing,
dated subsequent to the date of this Agreement, and executed by the Parties.
SIGNS EXECUTED this ~~day of ~~~+~--, 2008.
COUNTY. COUNTY OF l~le
By:
Hon le elson W. olff note le '-~~.-r ) •~~
Coup Jud County Judge
ATTEST:
BY:
County
APPROVED AS TC~ LEGAL FORM:
Susan Reed
Criminal 'ct Attorney
Bexar Coun .Texas
BY: i.'uur~ v r Lam-'
Kelsey M
Assistant D' Attorney
- Civil Secti n
APPROVED AST FINANCIAL CONTENT:
BY:
l.~ 7~'t c ~o ~ 97o F r~
BY:
i1Vl,.u L. Vu .~..,., ....
Executive D' or, Criminal Justice
Planning and'Coordination