Section IV – Appendices

Appendix A
Information Required – Motion For Class Action Certification

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A motion to certify a class must include, but is not limited to, the following:

1. A brief statement of the case.
2. A statement defining the class plaintiff seeks to have certified including its geographical and temporal scope.
3. A description of plaintiff’s particular grievance and why that claim qualifies plaintiff as a member of the class as defined.
4. Whether the plaintiff contends that the action may be maintained under Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3) and why.
5. A statement respecting the four prerequisites of Federal Rule of Civil Procedure 23(a). The statement shall set forth:
   1. The anticipated number of class members and how this number was determined.
   2. The common questions of law and fact involved.
   3. The reasons why plaintiff’s claim is typical of those of the other class members.
   4. The reason why representation by the named plaintiff is adequate to protect the interests of the class. This part of the statement shall specifically answer the following questions:
      1. Is the claim of the named plaintiff presently or potentially in conflict with that of any members of the class?
      2. Will the claims of the class require subclasses presently or in the future?
      3. What is the prior experience of counsel for the plaintiff that would indicate capability to handle the lawsuit?
      4. Is counsel presently representing or has he at any time represented, a class in any other class action, and if so, when and how many instances?
      5. How many cases is plaintiff’s counsel now handling in which class action allegations are made?
6. A statement describing any other pending actions in any court against the defendants alleging the same or similar causes of action.
7. A statement that the attorney for the named plaintiff has discussed and thoroughly explained to the plaintiff the nature of a class action and potential advantages and disadvantages to the named plaintiff by proceeding in a class action rather than individually.
8. A statement of the proposed notices to the members of the class and how and when the notices will be given, including a statement regarding security deposit for the cost of notices.
9. A description of the extent of any settlement negotiations that have taken place and the likelihood of settlement with the named plaintiff on an individual basis. If such settlement is likely, include a statement specifying:
   1. Whether or not counsel have any knowledge of any person who has relied on the fact that this suit was initially filed as a class action.
   2. The manner in which counsel will protect the class in the event of settlement with the named plaintiff on an individual basis.
10. A statement of any other matters that the plaintiff deems necessary and proper to the expedition of a decision on the motion and the speedy resolution of the case on the merits.

Appendix B, Scheduling Order

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

                DIVISION

SCHEDULING ORDER

Pursuant to Rule 16, Federal Rules of Civil Procedure, the Court issues the following Scheduling Order:

1. A report on alternative dispute resolution in compliance with Rule CV-88 shall be filed by ________.
2. The parties asserting claims for relief shall submit a written offer of settlement to opposing parties by _________, and each opposing party shall respond, in writing, by ________.
3. The parties shall file all motions to amend or supplement pleadings or to join additional parties by _______.
4. All parties asserting claims for relief shall file their designation of testifying experts and shall serve on all parties, but not file, the materials required by Federal Rule of Civil Procedure 26(a)(2)(B) by __________ . Parties resisting claims for relief shall file their designation of testifying experts and shall serve on all parties, but not file, the materials required by Federal Rule of Civil Procedure 26(a)(2)(B) by __________ . All designations of rebuttal experts shall be filed within 14 days of receipt of the report of the opposing expert.
5. An objection to the reliability of an expert’s proposed testimony under Federal Rule of Evidence 702 shall be made by motion, specifically stating the basis for the objection and identifying the objectionable testimony, not later than ____ days of receipt of the written report of the expert’s proposed testimony, or not later than ____ days of the expert’s deposition, if a deposition is taken, whichever is later.
6. The parties shall complete all discovery on or before __________. Counsel may by agreement continue discovery beyond the deadline, but there will be no intervention by the Court except in extraordinary circumstances, and no trial setting will be vacated because of information obtained in post-deadline discovery.
7. All dispositive motions as defined in Rule CV-7(c) shall be filed no later than ________________.
8. This case is set for trial [docket call, or jury selection] on ________ at _.m. The parties should consult Rule CV-16 regarding matters to be filed in advance of trial.

SIGNED this _____ day of _________________.

                                                                                            
UNITED STATES DISTRICT JUDGE

Appendix B-1, Notice Of Right To Consent To Trial By Magistrate Judge

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS

                DIVISION

NOTICE OF RIGHT TO CONSENT
TO TRIAL BY MAGISTRATE JUDGE

Pursuant to 28 U.S.C. § 636(c)(1), all full-time United States Magistrate Judges are authorized and empowered to try any civil case, jury or nonjury, with the consent of all parties to the lawsuit. Because of the crowded condition of the criminal docket in this District and the difficulty in reaching civil cases for trial, you may wish to consent to the trial of your case by a United States Magistrate Judge. Your decision should be communicated to the United States District Clerk’s Office. Consent forms are available in the Clerk’s office. Your consent to trial by a Magistrate Judge must be voluntary, and you are free to withhold consent without suffering any adverse consequences. If all parties do consent to trial of this case by a Magistrate Judge, the Court will enter an order referring the case to a Magistrate Judge for trial and for entry of judgment.

SIGNED this _____ day of _________________.

                                                                                            
UNITED STATES DISTRICT JUDGE

Appendix C, Local Rules For The Assignment Of Duties To United States Magistrate Judges

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LOCAL RULES FOR THE ASSIGNMENT OF DUTIES TO UNITED STATES MAGISTRATE JUDGES

RULE 1. AUTHORITY OF UNITED STATES MAGISTRATE JUDGES

(a) Duties Under 28 U.S.C. §636(a).

Each United States Magistrate Judge of this Court is authorized to perform the duties prescribed by
28 U.S.C. §636(a), and may:

(1) Exercise all the powers and duties conferred or imposed upon United States
Commissioners by law and the Federal Rules of Criminal Procedure.

(2) Administer oaths and affirmations, impose conditions of release under 18
U.S.C. §3146, and take acknowledgments, affidavits and depositions; and

(3) Conduct extradition proceedings, in accordance with 18 U.S.C. §3184.

(b) Disposition of Misdemeanor Cases —18 U.S.C. §3401.

A magistrate judge may:

(1) Try persons accused of, and sentence persons convicted of, misdemeanors committed within this
district in accordance with 18 U.S.C. §3401;


(2) Direct the probation service of the court to conduct a presentence investigation in any
misdemeanor case; and


(3) Conduct a jury trial in any misdemeanor case where the defendant so requests and is entitled to
trial by jury under the Constitution and laws of the United States.


(c) Determination of Non-Dispositive Pretrial Matters~28
U.S.C. §636(b)(1)(A).

A magistrate judge may hear and determine any procedural or discovery motion or other pretrial
matter in a civil or criminal case, other than the motions which are specified in subsection 1(d),
infra, of these rules.

(d) Recommendations Regarding Case-Dispositive Motions—28 U.S.C.
§636(b)(l)(B).

(1) A magistrate judge may submit to a judge of the court a report containing proposed findings
of fact and recommendations for disposition by the judge of the following pretrial motions in
civil and criminal cases:

A. Motions for injunctive relief, including temporary restraining orders and preliminary and
permanent injunctions;

B. Motions for judgment on the pleadings;

C. Motions for summary judgment;

D. Motions to dismiss or permit the maintenance of a class action;

E. Motions to dismiss for failure to state a claim upon which relief may be granted;

F. Motions to involuntarily dismiss an action;

G. Motions for review of default judgments;

H. Motions to dismiss or quash an indictment or information made by a defendant; and

I. Motions to suppress evidence in a criminal case.

(2) A magistrate judge may determine any preliminary matters and conduct any necessary evidentiary
hearing or other proceeding arising in the exercise of the authority conferred by this subsection.

(e) Prisoner Cases under 28 U.S.C. §§2254 and 2255.

A magistrate judge may perform any or all of the duties imposed upon a judge by the rules governing proceedings in the United States District Courts under §2254 and §2255 of Title
28, United States Code. In so doing, a magistrate judge may issue any preliminary orders and
conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a
judge a report containing proposed findings of fact and recommendations for disposition of the
petition by the judge. Any order disposing of the petition may be made only by a judge.

(f) Prisoner Cases under 42 U.S.C. §1983 and 28 U.S.C. §2241.

A magistrate judge may issue any preliminary orders and conduct any necessary evidentiary hearing or other appropriate proceeding and shall submit to a judge a report containing proposed findings of fact and recommendations for the disposition of petitions filed by prisoners pursuant to 42 U.S.C. §1983 and 28 U.S.C. §2241.

(g.) Special Master References.

A magistrate judge may be designated by a judge to serve as a special master in appropriate civil
cases in accordance with 28 U.S.C. §636(b)(2) and Rule 53 of the Federal Rules of Civil Procedure.
Upon the consent of the parties, a magistrate judge may be designated by a judge to serve as a
special master in any civil case, notwithstanding the limitations of Rule 53(b) of the Federal
Rules of Civil Procedure.

(h.) Review of Administrative Agency Proceedings.

In a suit for judicial review of a final decision of an administrative agency, a magistrate judge
may be designated by a judge to review the record of administrative proceedings and
submit to the district judge a report and recommendation concerning (a) any defects in the agency
proceedings which constitute a violation of statute or regulation or a violation of due process,
whether the matter should be remanded to the agency for additional factual determinations, and
(c) whether the record contains substantial evidence in support of the agency decision.

(i.) Conduct of Trials and Disposition of Civil Cases Upon
Consent of the Parties– 28 U.S.C. §636(c).

Upon the consent of the parties, a full-time magistrate judge may conduct any or all proceedings in
any civil case which is filed in this court, including the conduct of a jury or
non-jury trial, and may order the entry of a final judgment, in accordance with 28 U.S.C. §636(c).
In the course of conducting such proceedings upon consent of the parties, a magistrate judge may
hear and determine any and all pretrial and post-trial motions which are filed by the parties,
including case-dispositive motions.

(j.) Other Duties.

A magistrate judge is also authorized to:

(1) Exercise general supervision of civil and criminal calendars, conduct calendar and status
calls, and determine motions to expedite or postpone the trial of cases for the judges;

(2) Conduct pretrial conferences, settlement conferences, omnibus hearings, and related pretrial
proceedings in civil and criminal cases;

(3) Conduct arraignments in criminal cases not triable by the magistrate judge and take not guilty
pleas in such cases;

(4) Receive grand jury returns in accordance with Rule 6(f) of the Federal Rules of
Criminal Procedure;

(5) Accept waivers of indictment, pursuant to Rule 7(b) of the Federal Rules of Criminal
Procedure;

(6) Accept petit jury verdicts in the absence of a judge;

(7) Conduct necessary proceedings leading to the potential revocation of misdemeanor probation and
revocation of felony or misdemeanor supervised release;

(8) Issue subpoenas, writs of habeas corpus ad testificandum or habeas corpus ad prosequendum, or
other orders necessary to obtain the presence of parties, witnesses or evidence needed for court
proceedings;

(9) Order the exoneration or forfeiture of bonds;

(10) Perform the functions specified in 18 U.S.C. §4107, 4108, 4109, regarding proceedings for
verification of consent by offenders to transfer to or from the United States and the appointment
of counsel therein;

(11) Preside over a naturalization ceremony and administer the oath required by 8 U.S.C.
§1448(a);

(12) Supervise proceedings on requests for letters rogatory in civil and criminal cases if
designated by a district judge under 28 U.S.C. § 1782(a);

(13) Consider and rule upon applications for administrative inspection warrants and orders
permitting entry upon a taxpayer’s premises to effect levies in satisfaction of unpaid tax
deficits;

(14) Issue orders authorizing the installation and use of pen registers, traps and traces, and
issue orders directing a communications common carrier, including a telephone company, to provide
assistance to a named federal investigative agency in accomplishing the installation of traps,
traces and pen registers; and

(15) Perform any additional duty as is not inconsistent with the Constitution and laws of the
United States.


RULE 2. ASSIGNMENT OF MATTERS TO MAGISTRATE JUDGES

(a.) General.

The method of assignment of duties to a magistrate judge and for the allocation of duties among the
several magistrate judges of the court shall be made in accordance with orders of the court or by
special designation of a judge.

(b.) Misdemeanor Cases.

All misdemeanor cases shall be assigned, upon the filing of an information, complaint, or
violation notice, or the return of an indictment, to a magistrate judge, who shall proceed in
accordance with the provisions of 18 U.S.C. §3401 and Rule 58, Federal Rules of Criminal Procedure.


Rule 3. PROCEDURE BEFORE THE MAGISTRATE JUDGE

(a) In General.

In performing duties for the court, a magistrate judge shall conform to all applicable provisions
of federal statutes and rules, to the local rules of this court, and to the requirements specified
in any order of reference from a judge.

(b) Special Provisions for the Disposition of Civil Cases by a Magistrate Judge on Consent of
the Parties– 28 U.S.C. §636(c).

(1) Notice.

The clerk of court shall notify the parties in all civil cases that they may consent to have a
magistrate judge conduct any or all proceedings in the case and order the entry of a final
judgment. Such notice shall be handed or mailed to the plaintiff or his/her representative at the
time an action is filed and to other parties as attachments to copies of the complaint and summons,
when served. Additional notices may be furnished to the parties at later stages of the proceedings,
and may be included with pretrial notices and instructions.

(2) Execution of Consent.

The parties may sign separate consent forms; however, consent forms signed by all the parties or
their representatives will also be accepted. The consent forms should be sent to the clerk of
court. Unless all parties have consented to the reference, the decision of each party as indicated
on the consent forms shall not be made known to any judge or magistrate judge. No magistrate judge,
judge, or other court official may attempt to persuade or induce any party to consent to the
reference of any matter to a magistrate judge. This rule, however, shall not preclude a judge or
magistrate judge from informing the parties that they have the option of referring a case to a
magistrate judge.

(3) Reference.

After the consent form has been executed and filed, the clerk shall transmit it to the judge to
whom the case has been assigned for approval and referral of the case to a magistrate judge. Once
the case has been assigned to a magistrate judge, the magistrate judge shall have the authority to
conduct any and all proceedings to which the parties have consented and to direct the clerk of
court to enter a final judgment in the same manner as if a judge had presided.

RULE 4. REVIEW AND APPEAL

(a) Appeal of Non-Dispositive Matters–28 U.S.C. §636(b) (l)(A).

Any party may appeal from a magistrate judge’s order determining a motion or matter under
subsection l (c) of these rules, supra, within 14 days after issuance of the magistrate judge’s
order, unless a different time is prescribed by the magistrate judge or a judge. Such party shall
file with the clerk of court, and serve on the magistrate judge and all parties, a written
statement of appeal which shall specifically designate the order, or part thereof, appealed from and the
basis for any objection thereto. A judge of the court shall consider the appeal and shall set
aside any portion of the magistrate judge’s order found to be clearly erroneous or contrary to law.
The judge may also reconsider sua sponte any matter determined by a magistrate judge under this
rule.

(b) Review of Case-Dispositive Motions and Prisoner Litigation–28 U.S.C. § 636(b)(l)(B).

Any party may object to a magistrate judge’s proposed findings, recommendations or report under
subsections 1 (d), (e), (f) and (h) of these rules, supra, within 14 days after being served with a
copy thereof. The clerk of court shall notify the parties of this right when serving copies of the
report. Such party shall file with the clerk of court, and serve on the magistrate judge and all
parties, written objections which shall specifically identify the portions of the proposed
findings, recommendations or report to which objection is made and the basis for such objections. A
judge shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made and may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge. The judge, however, need
conduct a new hearing only in his/her discretion or where required by law, and may consider the
record developed before the magistrate judge, making his/her own determination on the basis of that
record. The judge may also receive further evidence, recall witnesses or recommit the matter to the
magistrate judge with instructions.

(c) Special Master Reports-28 U.S.C. §636(b)(2).

Any party may seek review of, or action on, a special master report filed by a magistrate judge in
accordance with the provisions of Rule 53(e) of the Federal Rules of Civil Procedure.

(d) Appeal from Judgments in Misdemeanor Cases-18 U.S.C. §3402.

A defendant may appeal a judgment of conviction by a magistrate judge in a misdemeanor case by
filing a notice of appeal to the District Court within 14 days after entry of the judgment, and by
serving a copy of the notice upon the United States Attorney. The scope of appeal shall be the same
as on an appeal from a judgment of the district court of the court of appeals.

(e) Appeal from Judgments in Civil Cases Disposed of on Consent of the
Parties-28 U.S.C. § 636(c).

(1) Appeal to the Court of Appeals.

Upon the entry of judgment in any civil case disposed of by a magistrate judge on consent of the
parties under authority of28 U.S.C. §636(c) and subsection l(i) of these rules, supra, an aggrieved
party shall appeal directly to the United States Court of Appeals for this circuit in the same
manner as an appeal from any other judgment of this court.

(f) Appeals from Other Orders of a Magistrate Judge.

Appeals from any other decisions and orders of a magistrate judge not provided for in this rule
should be taken as provided by a governing statute, rule, or decisional law.

ADDENDUM

General Order of July 17, 1981

ON THIS DATE came on to be considered those causes in which Plaintiff, pursuant to
42U.S.C. § 405(g) and 5 U.S.C. §§ 701 et seq., seeks review of a decision by the Secretary of the
Department of Health and Human Services upon an application for benefits under Title 42, Chapter 7,
Subchapter II, United States Code, and,

In accordance with the authority vested in the United States Magistrate Judge pursuant to the
Amended Order for the Adoption of Rules for the exercise of Powers and Performance of Duties by
United States Magistrate Judges, adopted in the Western District of Texas on April 17,
1980.

IT IS HEREBY ORDERED that all matters in which Plaintiff, pursuant to 42 U.S.C. §
405(g) and 5 U.S.C. §§ 701 et seq., seeks review of a decision by the Secretary of the Department
of Health and Human Services upon an application for benefits under Title 42, Chapter 7, Subchapter
I~ United States Code, be referred by the Clerk to the United States Magistrate
Judges sitting in the San Antonio Division in accordance with a random assignment procedure
approved by the judges residing in the San Antonio Division.

IT IS FURTHER ORDERED that the United States Magistrate Judge is authorized to issue all orders
necessary to his/her review, and that, upon completion of his/her review, he/she
shall prepare a recommendation to the Court concerning the adjudication of these causes.

Appendix E-1, Application for Admission to Practice in the Western District of Texas

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Appendix E-2, Application for Admission to Practice in the Western District of Texas – Del Rio Only

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Appendix H-1, Confidentiality and Protective Order

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Appendix H-2, Confidentiality and Protective Order (Former App.H)

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Appendix I, Guidelines For Recorded Deposition

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Recorded depositions are authorized without the necessity of a motion and court order if taken under the following guidelines:

1. The beginning of the recording shall contain an announcement or other indication of the style of the case, the cause number, the name of the court where the case is pending, the physical location
   of the deposition, and an introduction of the witness, the attorneys, any parties or party representative who may be present, the court reporter, the video technician, and any other persons present at the deposition.
2. The witness will be sworn on camera.
3. The camera shall remain on the witness in standard fashion throughout the deposition.
   Close-ups and other similar techniques are forbidden unless agreed to by the parties or
   ordered by the court.
4. The arrangement of the interrogation should be such that, in responding to the interrogating
   attorney, the witness will look as directly into the camera as possible.
5. No smoking shall be allowed during the recording, and there should be no unnecessary
   noise or movement.
6. The party issuing the notice of the recorded deposition shall be responsible for the original
   of the recording, and other parties shall have the option to obtain copies at their cost.
7. A time-date generator or other suitable indexing method must be used throughout the
   course of recording the deposition.
8. An announcement of the time on the recording shall be made each time the recording is
   begun and is stopped.
9. The time of conclusion of the recording must be announced on the recording.

Appendix J, Notice Regarding Complaints of Judicial Misconduct or Disability

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To improve the administration of justice in the federal courts, Congress passed the Judicial Conduct and Disability Act of 1980, codified at 28 U.S.C. § 372(c). The law authorizes complaints against United States circuit, district, bankruptcy, and magistrate judges who have “engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts” or who are “unable to discharge all the duties of office by reason of mental or physical disability.” The conduct to which the law is addressed does not include making wrong judicial decisions, for the law provides that a complaint may be dismissed if it is “directly related to the merits of a decision or procedural ruling.” The Judicial Council of the Fifth Circuit has adopted Rules Governing Complaints of Judicial Misconduct or Disability. These rules apply to judges of the U. S. Court of Appeals for the Fifth Circuit and to the district, bankruptcy, and magistrate judges of federal courts within the Fifth Circuit. The circuit includes the states of Texas, Louisiana, and Mississippi.

These rules may be obtained from, and written complaints filed at, the following office:

1. Clerk
2. U. S. Court of Appeals, Fifth Circuit
3. 600 Camp Street, Room 102
4. New Orleans, Louisiana 70130

Appendix K, Plan For Prompt Disposition Of Criminal Cases Pursuant To The Speedy Trial Act Of 1974–18 U.S.C. §3165(e)(3)

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SECTION II

STATEMENT OF TIME LIMITS ADOPTED BY THE COURT AND PROCEDURES FOR IMPLEMENTING THEM

Pursuant to the requirements of Rule 50(b) of the Federal Rules of Criminal Procedure, the Speedy Trial Act of 1974 (18 U.S.C. Chapter 208), the Speedy Trial Act Amendments Act of 1979 (Pub. L. No. 96-43, 93 Stat. 327), and the Federal Juvenile Delinquency Act (18 U.S.C. §§5036, 5037), the Judges of the United States District Court for the Western District of Texas have adopted the following time limits and procedures to minimize undue delay and to further the prompt disposition of criminal cases and certain juvenile proceedings:

1. Applicability.
   1. Offenses. The time limits set forth herein are applicable to all criminal offenses triable in this Court,¹ including cases triable by United States Magistrates, except for petty offenses as defined in 18 U.S.C. §1(3). Except as specifically provided, they are not applicable to proceedings under the Federal Juvenile Delinquency Act. [§3172]
   2. Persons. The time limits are applicable to persons accused who have not been indicted or informed against as well as those who have, and the word “defendant” includes such persons unless the context indicates otherwise.
2. Priorities In Scheduling Criminal Cases.

   Preference shall be given to criminal proceedings as far as practicable as required by Rule 50(a) of the Federal Rules of Criminal Procedure. The trial of defendants in custody solely because they are awaiting trial and of high-risk defendants as defined in Section E should be given preference over other criminal cases. [§3164(a)]

3. Time Within Which An Indictment Or Information Must Be Filed.
   1. Time Limits. If an individual is arrested or served with a summons and the complaint charges an offense to be prosecuted in this district, any indictment or information subsequently filed in connection with such charge shall be filed within 30 days of arrest or service. [§3161(b)]
   2. Grand Jury Not In Session. If the defendant is charged with a felony to be prosecuted in this district, and no grand jury in the district has been in session during the 30­day period prescribed in subsection (1), such period shall be extended an additional 30 days. [§3161(b)]
   3. Measurement Of Time Periods. If a person has not been arrested or served with a summons on a Federal charge, an arrest will be deemed to have been made at such time as the person (i) is held in custody solely for the purpose of responding to a Federal charge; (ii) is delivered to the custody of a Federal official in connection with a Federal charge; or (iii) appears before a judicial officer in connection with a Federal charge.
   4. Related Procedures.
      1. At the time of the earliest appearance before a judicial officer of a person who has been arrested for an offense not charged in an indictment or information, the judicial officer shall establish for the record the date on which the arrest took place.
      2. In the absence of a showing to the contrary, a summons shall be considered to have been served on the date of service shown on the return thereof.
4. Time Within Which Trial Must Commence.
   1. Time Limits. The trial of a defendant shall commence not later than 70 days after the last to occur of the following dates:
      1. The date on which an indictment or information is filed in this district;
      2. The date on which a sealed indictment or information is unsealed; or
      3. The date of the defendant’s first appearance before a judicial officer of this district. [3161(c)(1)]
   2. Retrial: Trial After Reinstatement of an Indictment or Information. The retrial of a defendant shall commence within 70 days from the date the order occasioning the retrial becomes final, as shall the trial of a defendant upon an indictment or information dismissed by a trial court and reinstated following an appeal. If the retrial or trial follows an appeal or collateral attack, the court may extend the period if unavailability of witnesses or other factors resulting from passage of time make trial within 70 days impractical. The extended period shall not exceed 180 days. [§§3161(d)(2),(e)]
   3. Withdrawal of Plea. If a defendant enters a plea of guilty or nolo contendere to any or all charges in an indictment or information and is subsequently permitted to withdraw it, the time limit shall be determined for all counts as if the indictment or information were filed on the day the order permitting withdrawal of the plea became final. [§3161(i)]
   4. Superseding Charges. If, after an indictment or information has been filed, a complaint, indictment, or information is filed which charges the defendant with the same offense or with an offense required to be joined with that offense, the time limit applicable to the subsequent charge will be determined as follows:
      1. If the original indictment or information was dismissed on motion of the defendant before the filing of the subsequent charge, the time limit shall be determined without regard to the existence of the original charge. [§3161(d)(1)]
      2. If the original indictment or information is pending at the time the subsequent charge is filed, the trial shall commence within the time limit for commencement of trial on the original indictment or information. [§3161(h)(6)]
      3. If the original indictment or information was dismissed on motion of the United States Attorney before the filing of the subsequent charge, the trial shall commence within the time limit for commencement of trial on the original indictment or information, but the period during which the defendant was not under charges shall be excluded from the computations. Such period is the period between the dismissal of the original indictment or information and the date the time would have commenced to run on the subsequent charge had there been no previous charge.² [§3161(h)(6)]

         If the subsequent charge is contained in a complaint, the formal time limit within which an indictment or information must be obtained on the charge shall be determined without regard to the existence of the original indictment or information, but earlier action may in fact be required if the time limit for commencement of trial is to be satisfied.

   5. Measurement of Time Periods. For the purposes of this section:
      1. If a defendant signs a written consent to be tried before a magistrate and no indictment or information charging the offense has been filed, the time limit shall run from the date of such consent.
      2. In the event of a transfer to this district under Rule 20 of the Federal Rules of Criminal Procedure, the indictment or information shall be deemed filed in this district when the papers in the proceeding or certified copies thereof are received by the clerk.
      3. A trial in a jury case shall be deemed to commence at the beginning of voir dire.
      4. A trial in a nonjury case shall be deemed to commence on the day the case is called, provided that some step in the trial procedure immediately follows.
   6. Related Procedures.
      1. At the time of the defendant’s earliest appearance before a judicial officer of this district, the officer will take appropriate steps to assure that the defendant is represented by counsel and shall appoint counsel where appropriate under the Criminal Justice Act and Rule 44 of the Federal Rules of Criminal Procedure.
      2. The court shall have sole responsibility for setting cases for trial after consultation with counsel. At the time of arraignment or as soon thereafter as is practicable, each case will be set for trial on a day certain or listed for trial on a weekly or other short-term calendar. [§3161(a)]
      3. Individual calendars shall be managed so that it will be reasonably anticipated that every criminal case set for trial will be reached during the week of original setting. A conflict in schedules of Assistant United States Attorneys or defense counsel will be ground for a continuance or delayed setting only if approved by the court and called to the court’s attention at the earliest practicable time.
      4. In the event that a complaint, indictment, or information is filed against a defendant charged in a pending indictment or information or in an indictment or information dismissed on motion of the United States Attorney, the trial on the new charge shall commence within the time limit for commencement of trial on the original indictment or information unless the court finds that the new charge is not for the same offense charged in the original indictment or information or an offense required to be joined therewith.
      5. At the time of the filing of a complaint, indictment, or information described in paragraph (d), the United States Attorney shall give written notice to the court of that circumstance and of his position with respect to the computation of the time limits.
      6. All pretrial hearings shall be conducted as soon after the arraignment as possible, consistent with the priorities of other matters on the court’s criminal docket.
5. Defendants in Custody and High-Risk Defendants.³
   1. Time Limits. Notwithstanding any longer time periods that may be permitted under sections C and D, the following time limits will also be applicable to defendants in custody and high-risk defendants as herein defined:
      1. The trial of a defendant held in custody solely for the purpose of trial on a Federal charge shall commence within 90 days following the beginning of continuous custody.
      2. The trial of a high-risk defendant shall commence within 90 days of the designation as high-risk. [§3164(b)]
   2. Definition of “High-Risk Defendant.” A high-risk defendant is one reasonably designated by the United States Attorney as posing a danger to himself or any other person or to the community.
   3. Measurement of Time Periods. For the purposes of this section:
      1. A defendant is deemed to be in detention awaiting trial when he is arrested on a Federal charge or otherwise held for the purpose of responding to a Federal charge. Detention is deemed to be solely because the defendant is awaiting trial unless the person exercising custodial authority has an independent basis (not including a detainer) for continuing to hold the defendant.
      2. If a case is transferred pursuant to Rule 20 of the Federal Rules of Criminal Procedure and the defendant subsequently rejects disposition under Rule 20 or the court declines to accept the plea, a new period of continuous detention awaiting trial will begin at that time.
      3. A trial shall be deemed to commence as provided in section D(5)(c) and D(5)(d).
   4. Related Procedures.
      1. If a defendant is being held in custody solely for the purpose of awaiting trial, the United States Attorney shall advise the court at the earliest practicable time of the date of the beginning of such custody.
      2. The United States Attorney shall advise the court at the earliest practicable time (usually at the hearing with respect to bail) if the defendant is considered by him to be high risk.
      3. If the court finds that the filing of a “high-risk” designation as a public record may result in prejudice to the defendant, it may order the designation sealed for such period as is necessary to protect the defendant’s right to a fair trial, but not beyond the time that the court’s judgment in the case become final. During the time the designation is under seal, it shall be made known to the defendant and his counsel but shall not be made known to other persons without the permission of the court.
6. Exclusion of Time From Computations.
   1. Applicability. In computing any time limit under section C (Interval I), D (Interval II), or E (Custody/High-Risk), the periods of delay set forth in 18 U.S.C. §3161(h) shall be excluded. Such periods of delay shall not be excluded in computing the minimum period for commencement of trial under section G.
   2. Records of Excludable Time. The clerk of the court shall enter on the docket, in the form prescribed by the Administrative Office of the United States Courts, information with respect to excludable periods of time for each criminal defendant.
   3. Stipulations.
      1. The attorney for the government and the attorney for the defendant may at any time enter into stipulations with respect to the accuracy of the docket entries recording excludable time.
      2. To the extent that the amount of time stipulated by the parties does not exceed the amount recorded on the docket for any excludable period of delay, the stipulation shall be conclusive as between the parties unless it has no basis in fact or law. It shall similarly be conclusive as to a codefendant for the limited purpose of determining, under 18 U.S.C. §3161(h)(7), whether time has run against the defendant entering into the stipulation.
      3. To the extent that the amount of time stipulated exceeds the amount recorded on the docket, the stipulation shall have no effect unless approved by the court.
   4. Pre-Indictment Procedures.
      1. In the event that the United States Attorney anticipates that an indictment or information will not be filed within the time limit set forth in section C (Interval I), he may file a written motion with the court for a determination of excludable time. In the event that the United States Attorney seeks a continuance under 18 U.S.C. §3161(h)(8), he shall file a written motion with the court requesting such a continuance.
      2. The motion of the United States Attorney shall state (i) the period of time proposed for exclusion, and (ii) the basis of the proposed exclusion. If the motion is for a continuance under 18 U.S.C. §3161(h)(8), it shall also state whether or not the defendant is being held in custody on the basis of the complaint. In appropriate circumstances, the motion may include a request that some or all of the supporting material be considered ex parte and in camera.
      3. The court may grant a continuance under 18 U.S.C. §3161(h)(8) for either a specific period of time or a period to be determined by reference to an event (such as recovery from illness) not within the control of the government. If the continuance is to a date not certain, the court shall require one or both parties to inform the court promptly when and if the circumstances that justify the continuance no longer exist. In addition, the court shall require one or both parties to file periodic reports bearing on the continued existence of such circumstances. The court shall determine the frequency of such reports in the light of the facts of the particular case.
   5. Post-Indictment Procedures.
      1. At each appearance of counsel before the court, counsel shall examine the clerk’s records of excludable time for completeness and accuracy and shall bring to the court’s immediate attention any claim that the clerk’s record is in any way incorrect.
      2. In the event that the court continues a trial beyond the time limit set forth in section D or E, the court shall determine whether the limit may be recomputed by excluding time pursuant to 18 U.S.C. §3161(h).
      3. If it is determined that a continuance is justified, the court shall set forth its findings in the record, either orally or in writing. If the continuance is granted under 18 U.S.C. §3161(h)(8), the court shall also set forth its reasons for finding that the ends of justice served by granting the continuance outweigh the best interest of the public and the defendant in a speedy trial. If the continuance is to a date not certain, the court shall require one or both parties to inform the court promptly when and if the circumstances that justify the continuance no longer exist. In addition, the court shall require one or both parties to file periodic reports bearing on the continued existence of such circumstances. The court shall determine the frequency of such reports in the light of the facts of the particular case.
7. Minimum Period for Defense Preparation.
   Unless the defendant consents in writing to the contrary, the trial shall not commence earlier than 30 days from (i) the date on which the indictment or information is filed or (ii), if later, from the date on which counsel first enters an appearance, or (iii) the date on which the defendant expressly waives counsel and elects to proceed pro se. In circumstances in which the 70-day time limit for commencing trial on a charge in an indictment or information is determined by reference to an earlier indictment or information pursuant to section D(4), the 30-day minimum period shall also be determined by reference to the earlier indictment or information. When prosecution is resumed on an original indictment or information following a mistrial, appeal, or withdrawal of a guilty plea, a new 30-day minimum period will not begin to run. The court will in all cases schedule trials so as to permit defense counsel adequate preparation time in the light of all the circumstances. [§3161(c)(2)].
8. Time Within Which Defendant Should be Sentenced.
   1. Time Limit. A defendant shall ordinarily be sentenced within (45) days of the date of his conviction or plea of guilty or nolo contendere.
   2. Related Procedures. If the defendant and his counsel consent thereto, a presentence investigation may be commenced prior to a plea of guilty or nolo contendere or a conviction.
9. Juvenile Proceedings.
   1. Time Within Which Trial Must Commence. An alleged delinquent who is in detention pending trial shall be brought to trial within 30 days of the date on which such detention was begun, as provided in 18 U.S.C. §5036.
   2. Time of Dispositional Hearing. If a juvenile is adjudicated delinquent, a separate dispositional hearing shall be held no later than 20 court days after trial, unless the court has ordered further study of the juvenile in accordance with 18 U.S.C. § 5037(c).
10. Sanctions.
    1. Dismissal or Release from Custody. Failure to comply with the requirements of Title I of the Speedy Trial Act may entitle the defendant to dismissal of the charges against him or to release from pretrial custody. Nothing in this plan shall be construed to require that a case be dismissed or a defendant released from custody in circumstances in which such action would not be required by 18 U.S.C. §§ 3162 and 3164.⁴
    2. High-Risk Defendant. A high-risk defendant whose trial has not commenced within the time limit set forth in 18 U.S.C. § 3164(b) shall, if the failure to commence trial was through no fault of the attorney for the government, have his release conditions automatically reviewed. A high-risk defendant who is found by the court to have intentionally delayed the trial of his case shall be subject to an order of the court modifying his nonfinancial conditions of release under Chapter 207 of Title 18, U.S.C., to ensure that he shall appear at trial as required. [§3164(c)]
    3. Discipline of Attorneys. In a case in which counsel (a) knowingly allows the case to be set for trial without disclosing the fact that a necessary witness would be unavailable for trial, (b) files a motion solely for the purpose of delay which he knows is frivolous and without merit, (c) makes a statement for the purpose of obtaining a continuance which he knows to be false and which is material to the granting of the continuance, or (d) otherwise willfully fails to proceed to trial without justification consistent with 18 U.S.C. §3161, the court may punish such counsel as provided in 18 U.S.C. §§ 3162(b) and (c).
    4. Alleged Juvenile Delinquents. An alleged delinquent in custody whose trial has not commenced within the time limit set forth in 18 U.S.C. § 5036 shall be entitled to dismissal of his case pursuant to that section unless the Attorney General shows that the delay was consented to or caused by the juvenile or his counsel, or would be in the interest of justice in the particular case.
11. Persons Serving Terms of Imprisonment.

    If the United States Attorney knows that a person charged with an offense is serving a term of imprisonment in any penal institution, he shall promptly seek to obtain the presence of the prisoner for trial, or cause a detainer to be filed, in accordance with the provisions of 18 U.S.C. §3161(j).

12. Effective Dates.
    1. The amendments to the Speedy Trial Act made by Public Law 96-43 became effective August 2, 1979. To the extent that this revision of the district’s plan does more than merely reflect the amendments, the revised plan shall take effect upon approval of the reviewing panel designated in accordance with 18 U.S.C. §3165(c). However, the dismissal sanction and the sanctions against attorneys authorized by 18 U.S.C. § 3162 and reflected in sanctions J(1) and (2) of this plan shall apply only to defendants whose cases are commenced by arrest or summons on or after July, 1980, and to indictments and information filed on or after that date.
    2. If a defendant was arrested or served with a summons before July 1, 1979, the time within which an information or indictment must be filed shall be determined under the plan that was in effect at the time of such arrest or service.
    3. If a defendant was arraigned before August 2, 1979, the time within which the trial must commence shall be determined under the plan that was in effect at the time of such arraignment.
    4. If a defendant was in custody on August 2, 1979, solely because he was awaiting trial, the 90-day period under section E shall be computed from that date.

1. References:

2. ¹ 118 U.S.C. §3172 defines offenses as “any Federal criminal offense which is in violation of any Act of Congress…”
3. ² Under the rule of this paragraph, if an indictment was 2 dismissed on motion of the prosecutor on May 1, with 20 days remaining within which trial must be commenced, and the defendant was arrested on a new complaint on June 1, the time remaining for trial would be 20 days from June 1: the time limit would be based on the original indictment, but the period from the dismissal to the new arrest would not count. Although the 30-day arrest-to-indictment time limit would apply to the new arrest as a formal matter, the short deadline for trial would necessitate earlier grand jury action.
4. ³ If a defendant’s presence has been obtained through the filing of a detainer with state authorities, the Interstate Agreement on Detainers, 18 U.S.C., Appendix, may require that trial commence before the deadline established by the Speedy Trial Act. See U.S. v. Mauro, 436 U.S. 340), 356-57 n.24 (1978)
5. ⁴ Dismissal may also be required in some cases under the Interstate Agreement on Detainers, 18 U.S.C., Appendix.

Appendix L, Local Court Rules of the United States Bankruptcy Court for the Western District of Texas

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Local Court Rules of the United States Bankruptcy Court for the Western District of Texas

(Available by contacting the U. S. Bankruptcy Court)

http://www.txwb.uscourts.gov

Appendix M, Adoption of the Texas Lawyer’s Creed

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Appendix N, Joint Federal Rule of Civil Procedure 26 Report

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