Part 8.
TEXAS JUDICIAL COUNCIL
Chapter 173.
INDIGENT DEFENSE
The Task Force on Indigent Defense (Task Force) is a permanent Standing
Committee of the Texas Judicial Council. The 77th Texas Legislature authorized
the Task Force to direct the Comptroller to distribute Fair Defense Account
funds, including grants, to counties for indigent defense services. It further
authorized the Task Force to monitor grants and enforce compliance with grant
terms. The Task Force adopts §§173.1 - 173.8, 173.101 - 173.104,
173.201, 173.202, 173.301 - 173.301 - 173.311, 173.401, 173.402 of the Texas
Administrative Code on an emergency basis in order to implement this grant
authority established by the Texas Legislature.
These sections establish the guidelines for the administration of a new
grant program for counties to improve indigent defense services. These sections
set forth the general terms, conditions, criteria, and funding formula for
awarding these grants. Grants will aid counties to maintain, improve, and
enhance the delivery of indigent defense services, and will promote compliance
by counties with the requirements of state law and Task Force policies and
standards relating to indigent defense.
These new rules are adopted on an emergency basis to ensure that grant
funding can be awarded to the state's counties with the least delay and inefficiency.
Without the adoption of these new rules on an emergency basis, many counties
would likely not be able to expend the grant funds fully, efficiently, or
effectively and the Task Force would be unable to distribute these grant funds
in a fiscally responsible and fair manner.
Subchapter A. GENERAL GRANT PROGRAM PROVISIONS
1 TAC §§173.1 - 173.8
These new rules are adopted on an emergency basis under the
authority of Government Code § 71.062 (relating to Technical Support;
Grants), concerning the grant and aid program, that provides the Task Force
authority to provide for grants to assist counties to improve indigent defense
practices in the state, and to promote compliance with state law concerning
indigent defense practices, and to adopt by rule the guidelines for awarding
grants.
§173.1. Applicability.
(a)
The Texas Legislature authorized the Task Force on Indigent
Defense (Task Force) to direct the Comptroller to distribute Fair Defense
Account funds, including grants, to counties for indigent defense services.
It further authorized the Task Force to monitor grants and enforce compliance
with grant terms. Subchapters A through E of this chapter apply to Indigent
Defense grants to counties awarded by the Task Force. Subchapter A covers
the general provisions for grant funding. Subchapter B addresses eligibility,
grant funding, and expenditure reporting. Subchapter C provides rules detailing
the conditions the Task Force on Indigent Defense may place on grants. Subchapter
D sets out the rules related to administering grants. Subchapter E specifies
rules regarding program monitoring and audits.
(b)
All counties in Texas are eligible to participate in this
program.
§173.2.Definitions.
The following words and terms, when used in this chapter, will have
the following meanings, unless otherwise indicated:
(1)
"Ad hoc assigned counsel program" means a system under
which private attorneys, acting as independent contractors and compensated
with public funds, are individually appointed to provide legal representation
and services to a particular indigent defendant accused of a crime or juvenile
offense.
(2)
"Applicant" is a county that has submitted a grant application
or grant renewal documentation.
(3)
"Contract defender program" means a system under which
private attorneys, acting as independent contractors and compensated with
public funds, are engaged to provide legal representation and services to
a group of unspecified indigent defendants who appear before a particular
court or group of courts.
(4)
"Counsel appointed to defend" means a lawyer, other than
an attorney with a public defender, appointed to represent a defendant in
a criminal proceeding, including a habeas corpus hearing.
(5)
"Crime" means:
(A)
a misdemeanor punishable by confinement; or
(B)
a felony.
(6)
"Defendant" means a person accused of a crime or a juvenile
offense.
(7)
"Fair Defense Account" is an account in the general revenue
fund that may be appropriated only to the Task Force on Indigent Defense for
the purpose of implementing the Texas Fair Defense Act.
(8)
"Indigent defense support services" means criminal defense
services that:
(A)
are provided by licensed investigators, experts, or other
similar specialists, including forensic experts and mental health experts;
and
(B)
are reasonable and necessary for appointed counsel to provide
adequate representation to indigent defendants.
(9)
"Juvenile offense" means conduct committed by a person
while younger than 17 years of age that constitutes:
(A)
a misdemeanor punishable by confinement; or
(B)
a felony.
(10)
"Public defender" has the meaning assigned by Article
26.044(a), Code of Criminal Procedure.
(11)
"Schedule of fees" means a list of the fees adopted by
formal action of the judges of the county courts, statutory county courts,
and district courts trying criminal cases in each county.
1
Each fee schedule adopted will state reasonable fixed rates or minimum
and maximum hourly rates, taking into consideration reasonable and necessary
overhead costs and the availability of qualified attorneys willing to accept
the stated rates, and will provide a form for the appointed counsel to itemize
the types of services performed.. An attorney appointed to represent the interests
of a child in a juvenile proceeding will be paid in accordance with the same
schedule.
2
(12)
"Special condition" means a condition placed on a grant
because of a need for information, clarification, or submission of an outstanding
requirement of the grant.
(13)
"Task Force on Indigent Defense" (Task Force) is the governmental
entity charged with developing policies and standards for providing legal
representation and other defense services to indigent defendants at trial,
on appeal, and in post-conviction proceedings. The Task Force will:
(A)
provide technical support to:
(i)
assist counties in improving their indigent defense systems;
and
(ii)
promote compliance by counties with the requirements of
state law relating to indigent defense;
(B)
direct the Comptroller to distribute funds, including grants,
to counties to provide indigent defense services in the county; and
(C)
monitor each county that receives a grant and enforce compliance
by the county with the conditions of the grant, including enforcement by directing
the Comptroller to:
(i)
withdraw grant funds; or
(ii)
require reimbursement of grant funds by the county.
(14)
"UGMS" is the Uniform Grant Management Standards promulgated
by the Governor's Office of Budget and Planning at 1 TAC, §5.141 - 5.167.
(15)
"Fiscal Year" means the fiscal year for the State of Texas,
beginning September 1 and ending August 31.
1
Article
26.05, Texas Code of Criminal Procedure
2
Family
Code §51.10(i)
§173.3. Grant Submission Process Requests for applications.
The Task Force or its designees will publish Requests for Applications
(RFA) in the Texas Register for all Indigent Defense grants. Applicants must
submit their applications according to the requirements provided in the RFA.
The RFA will provide the following:
(1)
information regarding deadlines for the submission of applications;
(2)
the maximum and minimum amounts of funding available for
a grant, if applicable;
(3)
the start dates for grants, and the length of grant periods;
(4)
information regarding how applicants may obtain application
kits; and
(5)
information regarding where applicants must submit applications.
§173.4. Selection Process.
(a)
The Task Force or its designees will review grant applications
and shall make grant awards from the Texas Fair Defense Act.
(1)
Formula grants. The Task Force or its designees may allocate
funding to counties through a formula based upon population figures or other
criteria approved by the Task Force.
(2)
Discretionary grants. Discretionary grants will not be
available for Fiscal Year 2002.
(b)
During the staff review of an application, the staff may
request that the applicant submit additional information necessary to complete
grant review. The staff may request the applicant to provide any outstanding
forms and documents to clarify or justify any part of the application. The
applicant must provide a response by the established deadline. Such requests
for information, including the issuance of a preliminary review report, do
not mean that the Task Force will fund an application.
(c)
The Task Force will inform applicants of funding decisions
on their grant applications through either a Statement of Grant Award or a
notification of denial.
(d)
All grant funding decisions made by the Task Force or its
designees are final and are not subject to appeal.
§173.5. Grant Funding Decisions.
(a)
The Task Force or its designees will render decisions on
applications for funding through the use of objective tools and comparative
analysis. The Task Force or its designees will first determine whether the
grantee is eligible for funds in accordance with §173.1 of this title
(relating to "Applicability") and §173.101 of this title (relating to
"Eligibility").
(b)
All decisions to fund grant requests rest completely within
the discretionary authority of the Task Force or its designees. The receipt
of an application for grant funding does not obligate the Task Force to fund
the grant.
(c)
The Task Force makes no commitment that a grant, once funded,
will receive priority consideration for subsequent funding.
§173.6. Grant Acceptance.
Each applicant must accept or reject a grant award within 30 days of
the date upon which the Task Force issues a Statement of Grant Award. The
Task Force may alter this deadline upon request from the applicant. The authorized
official designated under §173.301 of this chapter (relating to "Grant
Officials") must formally accept the grant in writing before the grantee may
receive any grant funds.
§173.7. Adoptions by Reference.
(a)
Grantees must comply with all applicable state statutes,
rules, regulations, and guidelines.
(b)
The Task Force adopts by reference the rules, documents,
and forms listed below that relate to the administration of grants.
(1)
Uniform Grant Management Standards (UGMS) adopted pursuant
to the Uniform Grant and Contract Management Act of 1981, Chapter 783, Texas
Government Code. See 1 TAC §5.141 - 5.167.
(2)
The Task Force forms, including the statement of grant
award; grantee acceptance notice; grant adjustment notice; grantee's progress
report; financial expenditure report; and property inventory report.
§173.8. Use of the Internet.
The Task Force may provide for submission of grant applications, progress
reports, financial reports, and other information via the Internet. Completion
and submission of a progress report or financial report via the Internet meets
the relevant requirements contained within this chapter for submitting reports
in writing. If a grant application is submitted via the Internet, the Task
Force will not consider it complete until the grantee provides an Internet
Submission Form that is signed by the applicant's authorized official and
that meets all relevant deadlines for applications. This form certifies that
the information submitted via the Internet is true and correct and that, if
a grant is awarded, the grantee will abide by all relevant rules, policies,
and procedures.
This agency hereby certifies that the emergency adoption
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed with the Office of
the Secretary of State on March 29, 2002.
TRD-200201976
Jim Bethke
Research Analyst
Texas Judicial Council
Effective Date: March 29, 2002
Expiration Date: July 27, 2002
For further information, please call: (512) 475-4776
1 TAC §§173.101 - 173.104
These new rules are adopted on an emergency basis under the
authority of Government Code § 71.062 (relating to Technical Support;
Grants), concerning the grant and aid program, that provides the Task Force
authority to provide for grants to assist counties to improve indigent defense
practices in the state, and to promote compliance with state law concerning
indigent defense practices, and to adopt by rule the guidelines for awarding
grants.
§173.101. Eligibility.
The Task Force may provide grants from the Fair Defense Account to
counties providing legal representation and defense support services in accordance
with the Code of Criminal Procedure and Family Code to indigents accused of
crimes or juvenile offenses.
§173.102. Grant Funding.
(a)
The Task Force will make decisions regarding funding in
accordance with §173.4 of this chapter (relating to "Monitoring"), subject
to the availability of funds.
(b)
The applicant may not reduce the amount of funds expended
for indigent defense services in the county because of funds provided for
by the Texas Force on Indigent Defense under this grant.
§173.103. Expenditure Reporting.
(a)
Allowable expenditure categories and any necessary definitions
will be provided to the applicant as part of the grant application kit.
(b)
Grantees must ensure that all expenditures for which reimbursement
is requested are adequately documented. Documentation may include, but is
not limited to, travel records, time sheets or other payroll documentation,
invoices, contracts, mileage records, telephone bills and other documentation
that verifies the expenditure amount and appropriateness to the grant.
(c)
Expenditures may be allocated to the grant in accordance
with the Uniform Grant Management Standards.
§173.104. Program Income.
(a)
Rules governing the use of program income are included
in the provisions of the Uniform Grant Management Standards adopted by reference
in §173.7 of this chapter (relating to "Adoptions by Reference").
(b)
Grantees must use program income to supplement program
costs or reduce program costs. Program income may only be used for allowable
program costs.
This agency hereby certifies that the emergency adoption
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State on March 29, 2002.
TRD-200201978
Jim Bethke
Research Analyst
Texas Judicial Council
Effective Date: March 29, 2002
Expiration Date: July 27, 2002
For further information, please call: (512) 475-4776
1 TAC §173.201, §173.202
These new rules are adopted on an emergency basis under the
authority of Government Code § 71.062 (relating to Technical Support;
Grants), concerning the grant and aid program, that provides the Task Force
authority to provide for grants to assist counties to improve indigent defense
practices in the state, and to promote compliance with state law concerning
indigent defense practices, and to adopt by rule the guidelines for awarding
grants.
§173.201. Grant Conditions.
(a)
Applicants must apply for funds using the procedures, forms,
and certifications prescribed by the Task Force. When the Task Force determines
that a grantee has failed to submit the necessary information or has failed
to comply with any Task Force rule or other relevant statute, rule, or requirement,
the Task Force may place a special condition on the grant. The special condition
allows the Task Force to place a grantee's funds on hold until the grantee
has satisfied the requirements of the special condition. If a special condition
is not corrected or removed within 45 days, the Task Force may reject the
application and deny the grant.
(b)
Grantees must comply with the applicable grant management
standards adopted under §173.7 of this chapter (relating to "Adoptions
by Reference").
§173.202. Resolutions.
Each application must include a resolution from the county commissioners'
court that contains the following:
(1)
authorization for the submission of the application to
the Task Force;
(2)
provision giving the authorized official the power to accept,
reject, or alter a grant; and
(3)
a written assurance that, in the event of loss or misuse
of Fair Defense Account funds, the governing body will return all funds to
the Task Force.
This agency hereby certifies that the emergency adoption
has been reviewed by legal counsel and found to be within the agency's legal
authority to adopt.
Filed
with the Office of the Secretary of State on March 29, 2002.
TRD-200201979
Jim Bethke
Research Analyst
Texas Judicial Council
Effective Date: March 29, 2002
Expiration Date: July 27, 2002
For further information, please call: (512) 475-4776
Subchapter B. ELIGIBILITY, GRANT FUNDING AND EXPENDITURE REPORTING
Subchapter C. CONDITIONS OF GRANT FUNDING
Subchapter D. ADMINISTERING GRANTS