PART 8. TEXAS JUDICIAL COUNCIL
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 proposes new §§174.26 - 174.28, concerning policy monitoring requirements. The new sections are proposed 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.
Glenna Rhea Bowman, Chief Financial Officer of the Office of Court Administration, has determined that for each year of the first five years the proposed new sections are in effect, enforcing or administering the sections will have no fiscal impact on state or local governments.
Ms. Bowman has determined that there will be no material economic costs to persons who are required to comply with the new sections, nor do the proposed new sections have any anticipated adverse effect on small or micro-businesses.
Jim Bethke, Director of the Task Force, has also determined that for each year of the first five years the rules are in effect the public benefit will be an improvement in the quality of indigent defense services because of corrective actions taken by local jurisdictions to more fully meet the requirements of state law related to the provision of indigent defense services.
Comments on the proposed new rules may be submitted in writing to Wesley Shackelford, Special Counsel, Task Force on Indigent Defense, P.O. Box 12066, Austin, Texas 78711-2066, or by fax to (512) 475-3450 no later than 30 days from the date that these proposed rules are published in the Texas Register.
The new rule is proposed 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 proposed 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.
No other statutes, articles, or codes are affected by the proposed new rule.
§174.26.Subchapter Definitions.
The following words and terms when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise.
(1) Director. The director of the Task Force.
(2) Program Director. The local officer or employee designated under §173.301 of this title.
(3) Period of review. The 12 months preceding the date of the monitoring visit.
(4) Policies and Standards Committee. A committee of the Task Force charged with developing policies and standards related to improving indigent defense services.
(5) Policy Monitor. The employee of the Task Force who monitors the effectiveness of a county's indigent defense policies, standards, and procedures.
(6) Risk Assessment. A tool to rank each county's potential risk of not being in compliance with indigent defense laws.
(7) Task Force. Task Force means the Task Force on Indigent Defense.
This agency hereby certifies that the proposal 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 January 14, 2009.
TRD-200900175
Wesley Shackelford
Special Counsel
Texas Judicial Council
Earliest possible date of adoption: March 1, 2009
For further information, please call: (512) 936-6994
The new rules are proposed 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 sections also directs the Task Force to monitor grants and enforce policy with grant terms. The rules are also proposed 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.
No other statutes, articles, or codes are affected by the proposed new rules.
§174.27.Risk Assessment.
A risk assessment of each county shall be conducted by the policy monitor each fiscal year as the primary means of determining which counties will be selected for on-site policy monitoring. On-site monitoring visits to counties shall then be apportioned by administrative judicial region, county size, risk assessment scores, past visits and other documented factors. The risk assessment shall use a variety of factors related to the provision of indigent defense services, including but not limited to the following:
(1) Whether a county reported investigation and expert witness expenses;
(2) Whether a county reported reimbursements for attorney fees;
(3) Amount of per capita indigent defense expenses;
(4) Felony, misdemeanor, and juvenile attorney appointment rates;
(5) Population of a county;
(6) Whether complaints about a county have been received by the Task Force;
(7) Whether a county received an equalization award;
(8) Whether a county reported appeals cases; and
(9) Whether a county completed a voluntary self-assessment.
§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 that 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 §173.308 of this title.
This agency hereby certifies that the proposal 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 January 14, 2009.
TRD-200900176
Wesley Shackelford
Special Counsel
Texas Judicial Council
Earliest possible date of adoption: March 1, 2009
For further information, please call: (512) 936-6994