Adopted Rules Title 1

TITLE 1. ADMINISTRATION

CHAPTER 173. INDIGENT DEFENSE GRANTS

The Task Force on Indigent Defense (Task Force) is a permanent Standing Committee of the Texas Judicial Council. The Task Force repeals §§173.1 - 173.8, 173.101 - 173.104, 173.201, 173.202, 173.301 - 173.312, 173.401 and 173.402, concerning rules for grant administration. The repeals are adopted without changes to the proposal as published in the March 6, 2009, issue of the Texas Register (34 TexReg 1497).

The repealed rules are replaced with new rules to establish the guidelines for the administration of the Task Force's grant program, which is designed to promote compliance by counties with the requirements of state law relating to indigent defense.

No comments were received regarding adoption of the repeals.

SUBCHAPTER A. GENERAL GRANT PROGRAM PROVISIONS

1 TAC §§173.1 - 173.8

The repeals are adopted under the Texas Government Code §71.062. The Task Force is authorized to direct the Comptroller to distribute Fair Defense Account funds, including grants, to counties for indigent defense services under the Texas Government Code §71.062. This section further authorizes the Task Force to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Task Force interprets §71.062(c) to require the Task Force to adopt rules governing the process for distributing grant funds.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902755

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: March 6, 2009

For further information, please call: (512) 936-6994

SUBCHAPTER B. ELIGIBILITY AND GRANT FUNDING REQUIREMENTS

1 TAC §§173.101 - 173.104

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902756

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: March 6, 2009

For further information, please call: (512) 936-6994

SUBCHAPTER C. CONDITIONS OF GRANT FUNDING

1 TAC §173.201, §173.202

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902757

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: March 6, 2009

For further information, please call: (512) 936-6994

SUBCHAPTER D. ADMINISTERING GRANTS

1 TAC §§173.301 - 173.312

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902758

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: March 6, 2009

For further information, please call: (512) 936-6994

SUBCHAPTER E. PROGRAM MONITORING AND AUDITS

1 TAC §173.401, §173.402

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902759

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: March 6, 2009

For further information, please call: (512) 936-6994

CHAPTER 173. INDIGENT DEFENSE GRANTS

The Task Force on Indigent Defense (Task Force) is a permanent Standing Committee of the Texas Judicial Council. The Task Force adopts new §§173.101 - 173.109, 173.201 - 173.205, 173.301 - 173.310, 173.401 and 173.402, concerning the administration of grants to counties. The new sections are adopted without changes to the proposed text as published in the March 6, 2009, issue of the Texas Register (34 TexReg 1499).

The sections are adopted to establish the guidelines for the administration of a grant program for counties to improve indigent defense services. These sections set forth the general terms, conditions, and criteria 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.

No comments were received regarding adoption of the rules.

SUBCHAPTER A. GENERAL FUNDING PROGRAM PROVISIONS

1 TAC §§173.101 - 173.109

The new rules are adopted under the Texas Government Code §71.062. The Task Force is authorized to direct the Comptroller to distribute Fair Defense Account funds, including grants, to counties for indigent defense services under the Texas Government Code §71.062. This section further authorizes the Task Force to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Task Force interprets §71.062(c) to require the Task Force to adopt rules governing the process for distributing grant funds.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902760

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: March 6, 2009

For further information, please call: (512) 936-6994

SUBCHAPTER B. ELIGIBILITY AND FUNDING REQUIREMENTS

1 TAC §§173.201 - 173.205

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902761

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: March 6, 2009

For further information, please call: (512) 936-6994

SUBCHAPTER C. ADMINISTERING GRANTS

1 TAC §§173.301 - 173.310

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902762

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: March 6, 2009

For further information, please call: (512) 936-6994

SUBCHAPTER D. FISCAL MONITORING AND AUDITS

1 TAC §173.401, §173.402

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902763

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: March 6, 2009

For further information, please call: (512) 936-6994

CHAPTER 174. INDIGENT DEFENSE POLICIES AND STANDARDS

SUBCHAPTER C. POLICY MONITORING REQUIREMENTS

The Task Force on Indigent Defense (Task Force) is a permanent Standing Committee of the Texas Judicial Council. The Task Force adopts new §§174.26 - 174.28, concerning policy monitoring processes and benchmarks. Section 174.28 is adopted with changes to the proposed text as published in the January 30, 2009, of the Texas Register (34 TexReg 499) and will be republished. In §174.28(c)(3)(B), the word "that" is changed to "the" and in §174.28(d)(4) the reference to "§173.308" is changed to "§173.307". Changes in the adopted §174.28 reflect nonsubstantive variation from the proposed new rule. Legal counsel advises that the changes affect no new persons, entities, or subjects other than those given notice. Accordingly, republication of the adopted section as proposed is not required. Section 174.26 and §174.27 are adopted without changes and will not be republished.

The new sections are adopted to establish the guidelines for the administration of the Task Force's policy monitoring, which is designed to promote compliance by counties with the requirements of state law and Task Force policies and standards relating to indigent defense.

No comments were received regarding adoption of the new rules.

DIVISION 1. DEFINITIONS

1 TAC §174.26

The new rule is adopted under the Texas Government Code §71.062, which directs the Task Force to distribute funds based on a county's policy compliance with standards developed by the task force and the county's demonstrated commitment to the requirements of state law relating to indigent defense. The section also directs the Task Force to monitor grants and enforce policy with grant terms. The rule is also adopted under §71.061(a), which requires the Task Force to monitor the effectiveness of the county's indigent defense policies, standards, and procedures and to ensure compliance by the county with the requirements of state law relating to indigent defense.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902753

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: January 30, 2009

For further information, please call: (512) 936-6994

DIVISION 2. POLICY MONITORING PROCESS AND BENCHMARKS

1 TAC §174.27, §174.28

The new rules are adopted under the Texas Government Code §71.062, which directs the Task Force to distribute funds based on a county's policy compliance with standards developed by the task force and the county's demonstrated commitment to the requirements of state law relating to indigent defense. The section also directs the Task Force to monitor grants and enforce policy with grant terms. The rules are also adopted under §71.061(a), which requires the Task Force to monitor the effectiveness of the county's indigent defense policies, standards, and procedures and to ensure compliance by the county with the requirements of state law relating to indigent defense.

§174.28.On-Site Monitoring Process.

(a) Purpose. The process promotes local compliance with the requirements of the Fair Defense Act and Task Force rules and provides technical assistance to improve processes where needed.

(b) Monitoring Process. The policy monitor examines the local indigent defense plans and local procedures and processes to determine if the jurisdiction meets the statutory requirements and rules adopted by the Task Force. The policy monitor also attempts to randomly select samples of actual cases from the period of review by using a 15% confidence interval for a population at a 95% confidence level.

(c) Core Requirements. On-site policy monitoring focuses on the six core requirements of the Fair Defense Act and related rules. This rule establishes the process for evaluating policy compliance with a requirement and sets benchmarks for determining whether a county is in substantial policy compliance with the requirement.

(1) Prompt and Accurate Magistration.

(A) The policy monitor shall review the local indigent defense plans and determine if they require:

(i) Magistration within 48 hours of arrest;

(ii) That the right to counsel be communicated to the arrestee, the arrestee be provided an opportunity to request counsel, and both be recorded; and

(iii) Transmittal of the request for appointed counsel to the appointing authority within 24 hours of request.

(B) The policy monitor shall check for documentation indicating that the magistrate or county has:

(i) Informed and explained to an arrestee the rights listed in Article 15.17(a), Code of Criminal Procedure, including the right to counsel;

(ii) Maintained a process to magistrate arrestees within 48 hours of arrest;

(iii) Maintained a process for magistrates not authorized to appoint counsel to transmit requests for counsel to the appointing authority within 24 hours of the request; and

(iv) Maintained magistrate processing records required by Article 15.17(a), (e), and (f), Code of Criminal Procedure, and records documenting the time of arrest, time of magistration, whether the person requested counsel, and time for transferring requests for counsel to the appointing authority.

(2) Indigence Determination. The policy monitor shall review the local indigent defense plans and determine if they:

(A) Specify procedures and standards for determining whether a defendant is indigent;

(B) Apply the procedures and standards to each defendant in the county equally, regardless of whether the defendant is in custody or has been released on bail; and

(C) In the case of juveniles, specify that the income and assets of the parent or other person responsible for the juvenile shall be considered in determining the indigence of the child.

(3) Minimum Attorney Qualifications. The policy monitor shall review the local indigent defense plans and documentation to determine if they:

(A) Specify objective qualifications that attorneys must meet to be eligible for appointment, including the continuing legal education (CLE) requirements set out in §§174.1 - 174.4 of this title and annually track attorney CLE hours;

(B) Require each attorney applying to be on an appointment list be approved by a majority of the judges who try criminal cases at the felony or misdemeanor offense level, respectively, or by a majority vote of the juvenile board in juvenile cases; and

(C) In the case of juveniles, recognize the differences in qualifications and experience necessary for appointments for different offense levels as required by Texas Family Code §51.102(b)(2).

(4) Prompt Appointment of Counsel.

(A) The policy monitor shall review the local indigent defense plans and determine if they require:

(i) Counsel to be appointed for indigent defendants within one working day of receipt of the request for counsel in counties with a population of 250,000 or more, or three working days in other counties;

(ii) For juveniles not represented at the initial detention hearing, either immediate appointment of counsel or an order requiring the person having custody over the child to retain counsel if the person with custody is not found to be indigent;

(iii) For juveniles, that counsel to be appointed within five working days of the service on the child of the petition if the child's custodian is found indigent.

(B) The policy monitor shall check for documentation indicating that:

(i) Counsel was appointed for arrestees within one working day of receipt of the request for counsel in counties with a population of 250,000 or more, or three working days in other counties; and

(ii) Counsel was appointed within one day of the detention hearing for in-custody juveniles and within five working days of service of the petition on the juvenile for out-of-custody juveniles.

(5) Attorney Selection Process.

(A) The policy monitor shall review the local indigent defense plans and determine if they:

(i) Include an attorney selection method; and

(ii) Specify who is authorized to make appointments, what appointment lists are used, and a description of when an attorney on the list may be skipped, if applicable.

(B) The policy monitor shall check for documentation indicating:

(i) In the case of a contract defender program, that all requirements of §§174.10 - 174.25 of this title are met;

(ii) That attorney selection process actually used matches what is stated in the indigent defense plans; and

(iii) The number of appointments in the policy monitor's sample per attorney at each level (felony, misdemeanor, juvenile, and appeals) during the period of review, the percentage share of appointments represented by the top 10% of attorneys accepting appointments.

(6) Payment Process.

(A) The policy monitor shall review the local indigent defense plans and determine if they include:

(i) An attorney fee schedule;

(ii) Procedures for paying attorneys, experts, and investigators in accordance with the fee schedule; and

(iii) Procedures to reimburse expert and investigative expenses incurred without prior court approval when the expenses are reasonable and necessary.

(B) The policy monitor shall check for documentation indicating that the county has established a process for collecting and reporting itemized indigent defense expense and case information.

(d) Report.

(1) Report Issuance. The policy monitor shall issue a report to the program director within 30 days of the on-site monitoring visit to a county, unless a documented exception is provided by the director, with an alternative deadline provided, not later than 90 days from the on-site monitoring visit. The report shall contain each finding of noncompliance.

(2) County Response. Within 60 days of the date the report is issued by the policy monitor, the program director shall respond in writing to each finding of noncompliance, and shall describe the proposed corrective action to be taken by the county. The county may request the director to grant an extension of up to 60 days.

(3) Follow-up Visits. The policy monitor shall conduct an additional on-site visit to counties where the report included significant noncompliance findings. The follow-up visit shall occur within 12 months following receipt of a county's response to the report. The policy monitor shall review a county's implementation of corrective actions and shall report to the county and Task Force any remaining issues not corrected.

(4) Noncompliance. If a county fails to correct any noncompliance findings, the Task Force may impose a remedy under §173.307 of this title.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on July 3, 2009.

TRD-200902754

Wesley Shackelford

Special Counsel

Texas Judicial Council

Effective date: July 23, 2009

Proposal publication date: January 30, 2009

For further information, please call: (512) 936-6994