TITLE 1. ADMINISTRATION

PART 8. TEXAS JUDICIAL COUNCIL

CHAPTER 174. INDIGENT DEFENSE POLICIES AND STANDARDS

SUBCHAPTER A. MINIMUM CONTINUING LEGAL EDUCATION REQUIREMENTS

1 TAC §174.1

The Texas Indigent Defense Commission (Commission) is a permanent Standing Committee of the Texas Judicial Council. The Commission adopts an amendment to §174.1, concerning Minimum Continuing Legal Education Requirements. The rule is adopted without changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5755), and will not be republished. The amendment is adopted to update a reference to one of the Commission’s grant administration rules.

In addition to amending the rule to reflect the recent legislative change, the commission has reviewed the section pursuant to Government Code §2001.039 and has determined that the need for the rule continues to exist but that the proposed change to the current rule is appropriate.

No comments were received regarding the adoption of the amendment.

The amended rule is adopted under the Texas Government Code §79.034(a)(2), which authorizes the Commission to develop policies and standards related to minimum education requirements for attorneys providing legal representation to indigent defendants.

No other statutes, articles, or codes are affected by the adopted amendment.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705367

Wesley Shackelford

Deputy Director

Texas Judicial Council

Effective date: January 10, 2018

Proposal publication date: October 20, 2017

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


SUBCHAPTER B. CONTRACT DEFENDER PROGRAM REQUIREMENTS

The Texas Indigent Defense Commission (Commission) is a permanent Standing Committee of the Texas Judicial Council. The Commission adopts amendments to Subchapter B, concerning Contract Defender Program Requirements, §§174.10 - 174.12, 174.16, and 174.21. The rules are adopted without changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5755), and will not be republished. The amendments are adopted to correct references to the Commission, limit applicability of the rules to contracts of more than one week in duration, exclude the application of the rules to managed assigned counsel programs, require at least 30 days for attorneys to respond to a notification of the opportunity to apply for a contract unless it is an emergency, change the reference of extension to renewal of a contract, and refer to caseload guidelines published by the Commission.

In addition to amending the rule to reflect the recent legislative change, the commission has reviewed the section pursuant to Government Code §2001.039 and has determined that the need for the rule continues to exist but that the proposed change to the current rule is appropriate.

No comments were received regarding the adoption of the amendment.

DIVISION 1. DEFINITIONS

1 TAC §174.10

The amendments are adopted under the Texas Government Code §79.034(a)(7), which authorizes the Commission to develop policies and standards for providing legal representation to indigent defendants under a contract defender program.

No other statutes, articles, or codes are affected by the adoption.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705368

Wesley Shackelford

Deputy Director

Texas Judicial Council

Effective date: January 10, 2018

Proposal publication date: October 20, 2017

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


DIVISION 2. APPLICATION OF STANDARDS AND CONTRACTING PROCEDURES

1 TAC §174.11, §174.12

The amendments are adopted under the Texas Government Code §79.034(a)(7), which authorizes the Commission to develop policies and standards for providing legal representation to indigent defendants under a contract defender program.

No other statutes, articles, or codes are affected by the adoption.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705371

Wesley Shackelford

Deputy Director

Texas Judicial Council

Effective date: January 10, 2018

Proposal publication date: October 20, 2017

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


DIVISION 3. REQUIRED ELEMENTS OF A CONTRACT FOR INDIGENT DEFENSE SERVICES (EACH COMPONENT BELOW SHALL BE INCLUDED IN A CONTRACT FOR INDIGENT DEFENSE SERVICES AND SHALL SERVE AS THE BASIS FOR THE NOA)

1 TAC §174.16, §174.21

The amendments are adopted under the Texas Government Code §79.034(a)(7), which authorizes the Commission to develop policies and standards for providing legal representation to indigent defendants under a contract defender program.

No other statutes, articles, or codes are affected by the adoption.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705372

Wesley Shackelford

Deputy Director

Texas Judicial Council

Effective date: January 10, 2018

Proposal publication date: October 20, 2017

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


SUBCHAPTER C. POLICY MONITORING REQUIREMENTS

DIVISION 2. POLICY MONITORING PROCESS AND BENCHMARKS

1 TAC §174.28

The Texas Indigent Defense Commission (Commission) is a permanent Standing Committee of the Texas Judicial Council. The Commission adopts amendments to Texas Administrative Code, Title 1, Part 8, Chapter 174, Subchapter A, §174.28, concerning policy monitoring requirements. The amendments to §174.28 are adopted with changes to the proposed text as published in the October 20, 2017, issue of the Texas Register (42 TexReg 5757). The adopted revision deletes a reference to §173.303 because the proposed amendment to that section was not adopted by the Commission. The rule as adopted provides that attorneys appointed to represent indigent defendants must be on an approved for an appointment list. The adopted amendments also provide that in analyzing the distribution of appointments among qualified attorneys, the Commission will not consider appointments to attorneys who are added to the list during the year, removed from the list during the year, or permanently removed themselves from the list.

No comments were received regarding the adoption of the amendment.

The amendments are adopted under the Texas Government Code §79.037(a) and (b), which requires the Commission 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 amendments.

§174.28.On-Site Monitoring Process.

(a) Purpose. The process promotes local compliance with the requirements of the Fair Defense Act and Commission 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 Commission. 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. Policy monitoring may also include a review of statutorily required reports to the Office of Court Administration and Commission. 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. For each of these elements, the policy monitor shall review the local indigent defense plans and determine if the plans are in compliance with each element.

(1) Prompt and Accurate Magistration.

(A) 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.

(B) A county is presumed to be in substantial compliance with the prompt magistration requirement if magistration in at least 98% of the policy monitor's sample is conducted within 48 hours of arrest.

(2) Indigence Determination. The policy monitor checks to see if procedures are in place that comply with the indigent defense plan and the Fair Defense Act.

(3) Minimum Attorney Qualifications. The policy monitor shall check that attorney appointment lists are maintained according to the requirements set in the indigent defense plans. Only attorneys approved for an appointment list are eligible to receive appointments.

(4) Prompt Appointment of Counsel.

(A) The policy monitor shall check for documentation of timely appointment of counsel in criminal and juvenile cases.

(i) Criminal Cases. The policy monitor shall determine if counsel was appointed or denied 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. If the policy monitor cannot determine the date the appointing authority received a request for counsel, then the timeliness of appointment will be based upon the date the request for counsel was made plus 24 hours for the transmittal of the request to the appointing authority plus the time allowed to make the appointment of counsel.

(ii) Juvenile Cases. The policy monitor shall determine if counsel was appointed prior to the initial detention hearing for eligible in-custody juveniles. If counsel was not appointed, the policy monitor shall determine if the court made a finding that appointment of counsel was not feasible due to exigent circumstances. If exigent circumstances were found by the court and the court made a determination to detain the child, then the policy monitor shall determine if counsel was appointed for eligible juveniles immediately upon making this determination. For out-of-custody juveniles, the policy monitor shall determine if counsel was appointed within five working days of service of the petition on the juvenile.

(B) A county is presumed to be in substantial compliance with the prompt appointment of counsel requirement if, in each level of proceedings (felony, misdemeanor, and juvenile cases), at least 90% of indigence determinations in the policy monitor's sample are timely.

(5) Attorney Selection Process. The policy monitor shall check for documentation indicating:

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

(B) In the case of a managed assigned counsel program, that counsel is appointed according to the entity's plan of operation;

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

(D) For assigned counsel and managed assigned counsel systems, 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 and the percentage share of appointments represented by the top 10% of attorneys accepting appointments. A county is presumed to be in substantial compliance with the fair, neutral, and non-discriminatory attorney appointment system requirement if, in each level of proceedings (felony, misdemeanor, and juvenile cases), the percentage of appointments received by the top 10% of recipient attorneys does not exceed three times their respective share. The top 10% of recipient attorneys is the whole attorney portion of the appointment list that is closest to 10% of the total list. For this analysis, the monitor will include attorneys who may have been temporarily unavailable for part of the year but will exclude attorneys who were not on an appointment list for any part of the time period under review.

(6) Payment Process. 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 authorized official within 60 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 120 days from the on-site monitoring visit. The report shall contain recommendations to address areas of noncompliance.

(2) County Response. Within 60 days of the date the report is issued by the policy monitor, the authorized official 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 Reviews. The policy monitor shall conduct follow-up reviews of counties where the report included noncompliance findings. The follow-up review shall occur within a reasonable time but not more than two years 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 to the Commission any remaining issues not corrected. Within 30 days of the date the follow-up report is issued by the policy monitor, the authorized official shall respond in writing to each recommendation, 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 30 days.

(4) Failure to Respond to Report. If a county fails to respond to a monitoring report or follow-up report within the required time, then a certified letter will be sent to the authorized official, financial officer, county judge, local administrative district court judge, local administrative statutory county court judge, and chair of the juvenile board notifying them that all further payments will be withheld if no response to the report is received by the Commission within 10 days of receipt of the letter. If funds are withheld under this section, then the funds will not be reinstated until the Commission or the Policies and Standards Committee approves the release of the funds.

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

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 21, 2017.

TRD-201705373

Wesley Shackelford

Deputy Director

Texas Judicial Council

Effective date: January 10, 2018

Proposal publication date: October 20, 2017

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