TITLE 1. ADMINISTRATION

PART 4. OFFICE OF THE SECRETARY OF STATE

CHAPTER 81. ELECTIONS

SUBCHAPTER A. VOTER REGISTRATION

1 TAC §81.6

The Office of the Secretary of State, Elections Division, proposes a new rule, 1 Texas Administrative Code §81.6, to provide matching criteria used for determining whether registered voters are or may be deceased or have or may have a duplicate registration in the statewide voter registration database. Section 81.6 has been added to accommodate HB 3593 (83rd Regular Session) (2013) and HB 4034 (85th Regular Session) (2017), relating to which information combinations identified as common to a voter and to an individual who is deceased or to another voter registration record, constitute a weak match or a strong match.

Keith Ingram, Director of Elections, has determined that, for the first five-year period the new section is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed new rule.

Mr. Ingram has also determined that, for each year of the first five years the proposed rule is in effect, the public benefit anticipated as a result of enforcing this section will be more accurate voter registration rolls with the least possible impact on Texas voters. There will be no effect on small or micro-businesses.

Written comments of the proposal may be submitted to the Office of the Secretary of State, Keith Ingram, Director of Elections, P.O. Box 12060, Austin, Texas 78711. Comments may also be sent via E-mail to: elections@sos.texas.gov. For comments submitted electronically, please include "Proposed 2017 Matching Criteria Rule" in the subject line. Comments must be received no later than twenty (20) days from the date of publication of the proposal in the Texas Register. Comments should be organized in a manner consistent with the organization of the proposed rule. Questions concerning the proposed rule may be directed to Elections Division, Office of the Texas Secretary of State, at (512) 463-5650.

The new rule is proposed under the Texas Election Code, §31.003, which provides the Office of the Secretary of State with the authority to obtain and maintain uniformity in the application, operation, and interpretation of the Texas Election Code and of the election laws outside the Texas Election Code. It also allows the Office of the Secretary of State in performing such duties to prepare detailed and comprehensive written directives and instructions based on such laws. The rule is also proposed under Texas Election Code §18.068 and §18.0681, which provide the Office of the Secretary of State with rule-making authority to determine information combinations constituting a weak match or a strong match for purposes of deceased and duplicate matching in order to: (1) produce the least possible impact on Texas voters; and (2) fulfill its responsibility to manage the voter rolls.

No other sections are affected by the proposed rule.

§81.6.Matching Criteria.

(a) Deceased Matching criteria. In accordance with provisions of Texas Election Code §18.068(b), information received under Texas Election Code §16.001, shall be matched against the voter registration rolls to identify Strong Match and Weak Match records based on the following criteria:

(1) Strong Matched Deceased records are identified when the Last Name, Full Social Security Number (SSN) (9 digits), and Date of Birth (DOB) match between the voter record and the deceased record.

(2) Weak Match Deceased records are identified when one of the following combinations matches between the voter record and the deceased record are identified:

(A) First Name, Last Name, and DOB;

(B) Last Name and Full SSN (9 digits);

(C) Full SSN (9 digits) and DOB; or

(D) Last Four Digits of the SSN, DOB, and One or More Name Component(s):

(i) Last Name (in deceased file) to Last Name;

(ii) Last Name (in deceased file) to Middle Name;

(iii) First Name to First Name (excluding a Last Name included match); and/or

(iv) Middle Name or Middle Initial Match (excluding any additional name match).

(b) Duplicate Matching criteria. In accordance with provisions of Texas Election Code §18.0681(b), potential duplicate registrations shall be identified as Strong Match and Weak Match records based on the following criteria:

(1) Strong Matched Duplicate records are identified when one of the following combinations matches between voter records:

(A) Last Name, First Name, and Full Social Security Number (SSN) (9 digits);

(B) Last Name, First Name, and Texas Department of Public Safety (DPS)-Issued Driver License, Personal Identification Card, or Election Identification Certificate Number; or

(C) Last Name, First Name, Last Four Digits of the SSN, and Date of Birth.

(2) Weak Match Duplicate records are identified when one of the following combinations matches between voter records:

(A) Last Name, First Name, and Last Four Digits of the SSN; or

(B) Texas DPS-Issued Driver License, Personal Identification Card, or Election Identification Certificate Number.

(c) For all matching criteria involving a voter record, the voter's current and former Last Names are considered in the matching process where "Last Name" is designated.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 10, 2017.

TRD-201702591

Lindsey Aston

General Counsel

Office of the Secretary of State

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 463-5650


PART 8. TEXAS JUDICIAL COUNCIL

CHAPTER 173. INDIGENT DEFENSE GRANTS

The Texas Indigent Defense Commission (Commission) is a permanent Standing Committee of the Texas Judicial Council. The Commission proposes repealing §§173.101 - 173.109, 173.201 - 173.205, 173.301 - 173.310, 173.401 and 173.402 concerning rules for grant administration. The rules establish the guidelines for the administration of the Commission's grant program, which is designed to promote compliance by counties with the requirements of state law relating to indigent defense. The rules will be replaced by new rules proposed separately in the Texas Register.

Mr. Jim Bethke, Executive Director, has determined that for each of the first five-year period the proposed repeal of the rules are in effect the public benefit will be an improvement in the indigent defense services provided by counties because of the grants awarded under the proposed new rules.

Ms. Jennifer Henry, Chief Financial Officer of the Office of Court Administration, has determined that for each year of the first five years, a repeal of the rules will have no fiscal impact on state or local governments

Ms. Henry has determined that there will be no material economic costs to persons relating to the proposed repeal of the rules, nor will the proposed repeal have any anticipated adverse effect on small or micro-businesses.

Comments on the proposed repeal of the rules may be submitted in writing to Wesley Shackelford, Deputy Director, Texas Indigent Defense Commission, 209 West 14th Street, Austin, Texas 78701, or by fax to (512) 463-5724 no later than 30 days from the date that the proposed repeal of the rules are published in the TexasRegister.

SUBCHAPTER A. GENERAL FUNDING PROGRAM PROVISIONS

1 TAC §§173.101 - 173.109

The repeal of the rules is proposed under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission 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 Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the proposed repeal of the rules.

§173.101.Applicability.

§173.102.Definitions.

§173.103.Process for Submitting Applications for Grants.

§173.104.Grant Resolutions.

§173.105.Selection Process.

§173.106.Grant Funding Decisions.

§173.107.Discretionary Grant Acceptance.

§173.108.Adoptions by Reference.

§173.109.Use of the Internet.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 7, 2017.

TRD-201702561

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 936-6997


SUBCHAPTER B. ELIGIBILITY AND FUNDING REQUIREMENTS

1 TAC §§173.201 - 173.205

The repeal of the rules is proposed under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission 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 Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the proposed new rules.

§173.201.Eligibility.

§173.202.Use of Funds.

§173.203.Expenditure Categories.

§173.204.Program Income.

§173.205.Equipment.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 7, 2017.

TRD-201702562

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 936-6997


SUBCHAPTER C. ADMINISTERING GRANTS

1 TAC §§173.301 - 173.310

The repeal of the rules is proposed under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission 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 Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the proposed new rules.

§173.301.Grant Officials.

§173.302.Obligating Funds.

§173.303.Retention of Records.

§173.304.Expenditure Reports.

§173.305.Provision of Funds.

§173.306.Discretionary Grant Adjustments.

§173.307.Remedies for Noncompliance.

§173.308.Term of Grant.

§173.309.Violations of Laws.

§173.310.Progress Reports for Discretionary Grants.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 7, 2017.

TRD-201702563

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 936-6997


SUBCHAPTER D. MONITORING AND AUDITS

1 TAC §173.401, §173.402

The repeal of the rules is proposed under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission 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 Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the proposed new rules.

§173.401.Fiscal Monitoring.

§173.402.Audits Not Performed by the Task Force on Indigent Defense.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 7, 2017.

TRD-201702564

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 936-6997


CHAPTER 173. INDIGENT DEFENSE GRANTS

The Texas Indigent Defense Commission (Commission) is a permanent Standing Committee of the Texas Judicial Council. The Commission proposes new §§173.101 - 173.109, 173.201 - 173.205, 173.301 - 173.311, and 173.401 and 173.402 concerning rules for grant administration. The new rules are proposed to establish the guidelines for the administration of the Commission's grant program, which is designed to promote compliance by counties with the requirements of state law relating to indigent defense.

Ms. Jennifer Henry, 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. Henry 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.

Mr. Jim Bethke, Executive Director, has determined that for each of the first five-year period the rules are in effect the public benefit will be an improvement in the indigent defense services provided by counties because of the grants awarded under the proposed rules.

Comments on the proposed new rules may be submitted in writing to Wesley Shackelford, Deputy Director, Texas Indigent Defense Commission, 209 West 14th Street, Austin, Texas 78701, or by fax to (512) 463-5724 no later than 30 days from the date that these proposed rules are published in the Texas Register.

SUBCHAPTER A. GENERAL FUNDING PROGRAM PROVISIONS

1 TAC §§173.101 - 173.109

The new rules are proposed under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission 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 Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds.

No other statutes, articles, or codes are affected by the proposed new rules.

§173.101.Applicability.

(a) The Texas Legislature authorized the Texas Indigent Defense Commission (Commission) to direct the Comptroller to distribute Fair Defense Account funds and other appropriated funds, including grants, to counties and other eligible entities enumerated in section 79.037, Government Code, to provide indigent defense services. It further authorized the Commission to monitor grants and enforce compliance with grant terms. Subchapters A - D of this chapter apply to all indigent defense grants and other funds awarded to counties by the Commission. Subchapter A of this chapter covers the general provisions for funding. Subchapter B of this chapter addresses funding types, eligibility, and general provisions of grant funding. Subchapter C of this chapter sets out the rules related to administering grants. Subchapter D of this chapter specifies rules regarding fiscal and program monitoring and audits.

(b) Only counties in Texas and other eligible entities enumerated in section 79.037, Government Code, are eligible to receive grants or other funds from the Commission.

(c) The Commission may distribute grants in accordance with its policies and based on official submissions and reports provided by grantees. These funds must be used to support or improve indigent defense systems in the county and are subject to all applicable conditions contained in this chapter.

§173.102.Definitions.

The following words and terms, when used in this chapter, will have the following meanings, unless otherwise indicated:

(1) "Applicant" is a county or other eligible entity that has submitted a grant application, grant renewal documentation, or other request for funding from the Commission.

(2) "Application" is any formal request for funding submitted to the Commission.

(3) "Compliance Assistance Grants" means discretionary funding awarded to counties by the Commission for a specific program designed to promote and assist counties' compliance with the requirements of state law relating to indigent defense.

(4) "Crime" means

(A) a misdemeanor punishable by confinement; or

(B) a felony.

(5) "Defendant" means a person accused of a crime or a juvenile offense.

(6) "Discretionary Grant" means discretionary funding awarded on a competitive basis to implement new programs or processes in Texas counties designed to improve the quality of indigent defense services.

(7) "Extraordinary Disbursement Grant" means discretionary funding to reimburse a county for actual extraordinary expenses for providing indigent defense services in a case or series of cases causing a financial hardship for the county.

(8) "Fair Defense Account" is an account in the general revenue fund that may be appropriated to the Commission for the purpose of implementing the Texas Fair Defense Act.

(9) "Fiscal Monitor" is an employee of the Commission who monitors counties' fiscal processes to ensure that grant funds are spent appropriately in accordance with the Texas Fair Defense Act.

(10) "Formula Grant" means funding awarded to counties through a formula approved by the Commission.

(11) "Grant" is a funding award made by the Commission to a Texas county or other eligible entity.

(12) "Grantee" means a county or other eligible entity that is the recipient of a grant or other funds from the Commission.

(13) "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.

(14) "Special condition" means a requirement placed on a grant recipient by the Commission that must be satisfied as condition of funding.

(15) "Sustainability Grant" means discretionary funding awarded to assist counties in maintaining regional public defender programs.

(16) "Technical Support Grants" means discretionary-based funding awarded for special projects to improve the quality of indigent defense services, raise the knowledge base about indigent defense, and establish processes that can be generalized to similar situations in other counties.

(17) "Texas Indigent Defense Commission" (Commission) is the governmental entity established and governed by §79.002 of the Texas Government Code.

(18) "UGMS" means the Uniform Grant Management Standards promulgated by the Office of the Comptroller.

§173.103.Process for Submitting Applications for Grants and Other Funds.

(a) The Commission shall publish notice of availability of grants and related policies on its website.

(b) Grant applications. The Commission will provide notice to each county judge of the availability of indigent defense grants. Applicants applying pursuant to a Request for Applications (RFA) 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 starting and ending dates for grants;

(4) information regarding how applicants may access applications;

(5) information regarding where and how applicants must submit applications;

(6) submission and program requirements; and

(7) the priorities for funding as established by the Commission.

§173.104.Grant Resolutions.

Each grant application from a county must include a resolution from the county commissioners' court that contains the following:

(1) authorization for the submission of the application to the Commission;

(2) provision giving the authorized official the power to apply for, accept, decline, modify, or cancel the grant; and

(3) written assurance that, in the event of loss or misuse of grant funds, the governing body will return all funds as required by the Commission.

§173.105.Selection Process.

(a) The Commission or its designees will review all applications and shall award from the Fair Defense Account formula grants and discretionary grants.

(b) Upon reviewing an application, staff may require an applicant to submit, within a specified time, additional information to complete the review or to clarify or justify the application. Neither a request for additional information nor the issuance of a preliminary review report means that the Commission will fund an application.

(c) The Commission will inform applicants in writing or by electronic means of decisions to grant or deny applications for funding.

(d) If the Commission determines that an applicant has failed to submit the necessary information or has failed to comply with any Commission rule or other relevant statute, rule, or requirement, the Commission may hold a grantee's funds until the grantee has satisfied the requirements of a special condition imposed by the Commission. The Commission may reject the application and deny the grant for failure to satisfy the requirements.

§173.106.Grant Funding Decisions.

(a) The Commission or its designees will make decisions on applications for funding through the use of objective tools and comparative analysis. The Commission or its designees will first determine whether the grantee is eligible for funds in accordance with §173.101 of this chapter (relating to Applicability) and §173.201 of this chapter (relating to Eligibility).

(b) All funding decisions rest completely within the discretionary authority of the Commission or its designees. The receipt of an application for funding does not obligate the Commission to award funding, and the Commission may make grant awards that partially fund budget items in grant applications.

(c) Making a grant award based on an application does not obligate the Commission to give any subsequent applications priority consideration.

(d) Commission decisions regarding funding are subject to the availability of funds.

§173.107.Discretionary Grant Acceptance.

Each applicant must accept or reject a discretionary grant award within 30 days of the date upon which the Commission issues a Statement of Grant Award. The executive director of the Commission or his designee 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 discretionary grant funds.

§173.108.Adoptions by Reference.

(a) Grantees must comply with all applicable state statutes, rules, regulations, and guidelines.

(b) The Commission 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, Chapter 783, Texas Government Code.

(2) The Commission forms, including the statement of grant award, grant adjustment notice, grantee's progress report, financial expenditure report, and property inventory report.

§173.109.Use of the Internet.

The Commission may require submission of applications for grants, 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.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 7, 2017.

TRD-201702565

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 936-6997


SUBCHAPTER B. ELIGIBILITY AND FUNDING REQUIREMENTS

1 TAC §§173.201 - 173.205

The new rules are proposed under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission 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 Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds.

No other statutes, articles, or codes are affected by the proposed new rules.

§173.201.Eligibility.

(a) The Commission may award grants to counties and other eligible entities enumerated in section 79.037, Government Code, that have complied with standards developed by the Commission and that have demonstrated commitment to compliance with the requirements of state law relating to indigent defense. Grants to non-county eligible entities will only be awarded for the purpose of supporting or improving indigent defense services in Texas counties.

(b) A county may not reduce the amount of funds expended for indigent defense services in the county because of funds provided by the Commission.

§173.202.Use of Funds.

Grants provided under this chapter may be used by counties for:

(1) Attorney fees for indigent defendants accused of crimes or juvenile offenses;

(2) Expenses for licensed investigators, experts, forensic specialists, or mental health experts working for the defense under derivative attorney-client privilege to assist in the criminal defense of indigent defendants;

(3) Other direct litigation costs related to the criminal defense of indigent defendants; and

(4) Other approved expenses allowed by the Request for Applications necessary for the operation of a funded program.

§173.203.Expenditure Categories.

(a) Allowable expenditure categories and any necessary definitions will be provided to the applicant as part of the application process.

(b) Expenditures may be allocated to the grant in accordance with the Uniform Grant Management Standards.

§173.204.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 §173.108 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.

§173.205.Equipment.

(a) Decisions by the Commission or its designees regarding requests to purchase equipment using Commission funds will be made based on the availability of funds, whether the grantee has demonstrated that the requested equipment is necessary and essential to the successful operation of the funded program, and whether the equipment is reasonable in cost.

(b) For counties that receive a multi-year grant, the Commission will only fund equipment and other one-time start-up costs during the first year unless permission is granted in writing. Otherwise, equipment and other one-time costs will not factor in to the overall project costs after the first year of the grant.

(c) The Commission requires each grantee to maintain an inventory report of all equipment purchased with Commission funds. This report must comport with the final financial expenditure report. At least once each year during the award period, each grantee must complete a physical inventory of all property purchased with Commission funds and the grantee must reconcile the results with the purchased property records. For single-year awards, the inventory and reconciliation must be made at the end of the award period and submitted with the final report.

(d) Equipment purchased with Commission funds must be labeled and handled in accordance with the grantee's property management policies and procedures.

(e) Unless otherwise provided, equipment purchased is the property of the grantee after the end of the award period or termination of the operation of the funded program, whichever occurs last.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 7, 2017.

TRD-201702566

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 936-6997


SUBCHAPTER C. ADMINISTERING GRANTS

1 TAC §§173.301 - 173.311

The new rules are proposed under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission 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 Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds.

No other statutes, articles, or codes are affected by the proposed new rules.

§173.301.Grant Officials.

(a) Each grant must have the following designated to serve as grant officials:

(1) Financial officer. For grants to counties, this person must be the county auditor or county treasurer if the county does not have a county auditor. For grants to other eligible entities, the financial officer will be designated by the applicant.

(2) Authorized official. This person must be authorized to apply for, accept, decline, modify, or cancel the grant for the applicant. A county judge or a designee authorized by the governing body in its resolution may serve as the authorized official. For grants to non-county eligible entities, the authorized official will be designated by the applicant.

(b) The Commission may require a county to designate a program director. This person must be the officer or employee responsible for program operation and who will serve as the point-of-contact regarding the program's day-to-day operations.

(c) The program director and the authorized official may be the same person. The financial officer may not serve as the program director or the authorized official.

§173.302.Obligating Funds.

The grantee may not obligate grant funds before the beginning or after the end of the grant period.

§173.303.Retention of Records.

(a) Grantees must maintain all financial records, supporting documents, statistical records, and all other records pertinent to the award for at least three years following the closure of the most recent audit report or submission of the final expenditure report. Records retention is required for the purposes of state examination and audit. Grantees may retain records in an electronic format. All records are subject to audit or monitoring during the entire retention period.

(b) Appointment lists are considered supporting documents under subsection (a) of this section. If an attorney is removed from an appointment list and is no longer eligible to receive appointments, or is added to an appointment list, then that constitutes a new appointment list that must be maintained, along with the previous version of the appointment list, pursuant to subsection (a) of this section. If an attorney is temporarily removed from an appointment list, a new appointment list does not have to be created and maintained.

(c) Grantees must retain records for equipment, non-expendable personal property, and real property for a period of three years from the date of the item's disposition, replacement, or transfer.

(d) If any litigation, claim, or audit is started before the expiration of the three-year records retention period, the grantee must retain the records under review until the resolution of all litigation, claims, or audit findings.

§173.304.Expenditure Reports.

(a) Recipients of grants may be required to submit program expenditure reports to the Commission in addition to the annual expenditure report required for all counties under Texas Government Code §79.036(e).

(b) The Commission will provide the appropriate forms and instructions for expenditure reports and deadlines for their submission. The financial officer shall be responsible for submitting the expenditure reports.

(c) Grantees must ensure that actual expenditures are adequately documented. Documentation may include, but is not limited to, ledgers, purchase orders, 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 funded program. Expenditure documentation must be provided to the Commission upon request.

§173.305.Provision of Funds.

(a) After a grant has been awarded and if there are no outstanding special conditions or other deficiencies, the Commission may disburse funds to the grantee. Funds will be disbursed to the grantee quarterly unless specific permission for an alternative disbursement schedule is granted in writing from the executive director.

(b) Disbursement of funds is always subject to the availability of funds.

(c) Discretionary grant funds will be paid on a reimbursement basis only after the expenditure report has been submitted. Funds must be expended, not merely obligated, before being included in the grant program expenditure report. Requests for exceptions to this section must be in writing and signed by the authorized official and may be approved by the Commission for good cause.

§173.306.Discretionary Grant Adjustments.

(a) The authorized official must sign all requests for grant adjustments.

(b) Budget Adjustments. Grant adjustments consisting of reallocations of funds among or within budget categories in excess of $10,000 or ten percent of the original grant award, whichever is less, are considered budget adjustments, and are allowable only with prior approval of the executive director of the Commission. Grantees must notify the Commission in writing of reallocations of funds among or within budget categories below this threshold. If a reallocation of funds among or within budget categories results in the cumulative amount of budget changes within the same fiscal year reaching $10,000 or 10% of the original grant award, whichever is less, the adjustment is allowable only with the prior approval of the executive director of the Commission.

(c) Non-Budget Grant Adjustments. The following rules apply to other grant adjustments:

(1) Requests to revise the scope, target, or focus of the project, or alter project activities require advance written approval from the Commission.

(2) The grantee shall notify the Commission in writing of any change in the designated program director, financial officer, or authorized official within ten days following the change.

§173.307.Remedies for Noncompliance.

(a) If a grantee fails to comply with any term or condition of a grant or rule, the Commission may take one or more of the following actions:

(1) disallow all or part of the cost of the activity or action that is not in compliance and seek a return of the funds;

(2) impose administrative sanctions, other than fines, on the grantee;

(3) temporarily withhold all payments pending correction of the deficiency by the grantee;

(4) withhold future grant payments from the program or grantee; or

(5) terminate the grant in whole or in part.

(b) The Commission shall provide reasonable notice prior to imposing a remedy under subsection (a) of this section. If a grantee disputes the finding, the authorized official may request that one or more representatives of the grantee appear before the Commission. If the Commission receives such a request, it will consider the grantee's presentation at the Commission's next scheduled meeting. The administrative determination rendered by the Commission is final.

§173.308.Term of Grant.

(a) The term of a grant shall be specified in the award statement or other funding document.

(b) If a grantee wishes to terminate a grant in whole or in part before the end of the award period, the grantee must notify the Commission in writing. The Commission or its designee will make arrangements with the grantee for the early termination of the award, which may include transfer or disposal of property and return of unused funds.

(c) The Commission may terminate any grant, in whole or in part, when:

(1) the grantee and the executive director of the Commission agree to do so;

(2) indigent defense funds are no longer available; or

(3) conditions exist that make it unlikely that grant or program objectives will be accomplished.

(d) A grantee may submit a written request for an extension of the funding period. The Commission must receive requests for funding extensions at least 30 days prior to the end of the funding period. The executive director of the Commission may approve extensions of the funding period for up to six months. Requests to extend the funding period beyond six months of the original term must be approved by the Commission.

§173.309.Violations of Laws.

If the grantee has a reasonable belief that a criminal violation may have occurred in connection with Fair Defense Account funds, including the misappropriation of funds, fraud, theft, embezzlement, forgery, or any other serious irregularities indicating noncompliance with the requirements of a grant, the grantee must immediately notify the Commission in writing of the suspected violation or irregularity. The grantee may also notify the local prosecutor's office of any possible criminal violations. Grantees whose programs or personnel become involved in any litigation arising from the grant, whether civil or criminal, must immediately notify the Commission and forward a copy of any demand notices, lawsuits, or indictments to the Commission.

§173.310.Progress Reports for Discretionary Grants.

Each grantee must submit reports regarding performance and progress towards goals and objectives in accordance with the instructions provided by the Commission or its designee. To remain eligible for funding, the grantee must be able to show the scope of services provided and the impact and quality of those services.

§173.311.Contract Monitoring.

Grantees that use grant funds to contract for services must develop and include in the contract provisions to monitor each contract that is for more than $10,000 per year. These provisions must include specific actions to be taken if the grantee discovers that the contractor's performance does not meet the operational or performance terms of the contract. In the case of contracts for public defender offices and managed assigned counsel programs, these provisions must include a review of utilization and activity, reporting of financial data to evaluate the contractor's performance within the budget required by statute for such programs. Commission staff must review each contract at least once every two years and notify the grantee if it is not sufficient.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 7, 2017.

TRD-201702567

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 936-6997


SUBCHAPTER D. MONITORING AND AUDITS

1 TAC §173.401, §173.402

The new rules are proposed under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission 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 Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds.

No other statutes, articles, or codes are affected by the proposed new rules.

§173.401.Fiscal Monitoring.

(a) The Commission or its designees will monitor the activities of grantees as necessary to ensure that Commission grant funds are used for authorized purposes in compliance with laws, regulations, and the provisions of grant agreements.

(b) The monitoring program may consist of formal audits, monitoring reviews, and technical assistance. The Commission or its designees may implement monitoring through on-site review at the grantee location or through a desk review based on grantee reports. In addition, the Commission or its designees may require grantees to submit relevant information to the Commission to support any monitoring review. The Commission may contract with an outside provider to conduct the monitoring.

(c) Grantees must make available to the Commission or its designees all requested records relevant to a monitoring review. The Commission or its designees may make unannounced monitoring visits at any time. Failure to provide adequate documentation upon request may result in disallowed costs or other remedies for noncompliance as detailed under §173.307 of this chapter (relating to Remedies for Noncompliance).

(d) After a monitoring review, the fiscal monitor shall issue a report to the authorized official and financial officer within 45 days of the on-site monitoring visit to a county, unless a documented exception is provided by the executive 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.

(e) Within 60 days of the date the report is issued, the authorized official or financial officer 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 executive director to grant an extension of up to 60 days.

(f) The corrective action plan will include the:

(1) titles of the persons responsible for implementing the corrective action plan;

(2) corrective action to be taken; and

(3) anticipated completion date.

(g) If the grantee believes corrective action is not required for a noted deficiency, the response will include an explanation, specific reasons, and supporting documentation.

(h) The Commission or its designees will approve the corrective action plan and may require modifications prior to approval. The grantee's replies and the approved corrective action plan, if any, will become part of the final report.

(i) The grantee will correct deficiencies identified in the final report within the time frame specified in the corrective action plan.

(j) The fiscal monitor shall conduct an additional on-site visit or remote follow-up review to counties where the report included significant noncompliance findings. The follow-up visit or desk review shall occur within 12 months following receipt of a county's response to the report. The fiscal monitor shall review a county's implementation of corrective actions and shall report to the county and Commission any remaining issues not corrected. Within 30 days of the date the follow-up report is issued by the fiscal monitor, the authorized director or financial officer 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 30 days.

(k) 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 Grants and Reporting Committee approves the release of the funds.

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

§173.402.Audits Not Performed by the Texas Indigent Defense Commission.

(a) Grantees must submit to the Commission copies of the results of any single audit conducted in accordance with the State Single Audit Circular issued under the Uniform Grant Management Standards. Grantees must ensure that single audit results, including the grantee's response and corrective action plan, if applicable, are submitted to the Commission within 30 days after grantee receipt of the audit results or nine months after the end of the audit period, whichever is earlier.

(b) All other audits performed by auditors independent of the Commission must be maintained at the grantee's administrative offices pursuant to §173.303 of this chapter (relating to Retention of Records) and be made available upon request by the Commission or its representatives. Grantees must notify the Commission of any audit results that may adversely impact the Commission grant funds.

(c) Nothing in this section should be construed so as to require a special or program-specific audit of a grantee's Indigent Defense grant program.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 7, 2017.

TRD-201702568

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: August 20, 2017

For further information, please call: (512) 936-6997