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 proposes an amendment to Texas Administrative Code, Title 1, Part 8, Chapter 174, Subchapter A, §174.1, concerning Minimum Continuing Legal Education Requirements. The amendment is proposed to update a reference to one of the Commission's grant administration rules.

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 amendment is in effect, enforcing or administering the sections will have no fiscal impact on state or local governments.

Ms. Henry has determined that for each year of the first five years there will be no material economic costs to persons who are required to comply with the amendment, nor does the proposed amendment have any anticipated adverse effect on small or micro-businesses.

Jim Bethke, Executive Director, has determined that for each of the first five years the proposed amendment is 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 amendment may be submitted in writing to Wesley Shackelford, Deputy Director, Texas Indigent Defense Commission, 209 West 14th Street, Room 202, Austin, Texas 78701 or by email to wshackelford@tidc.texas.gov no later than 30 days from the date that this proposed amendment is published in the Texas Register.

The amended rule is proposed under the Texas Government Code §79.034(a)(2). The Commission interprets §79.034(a)(2) as authorizing 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 proposed amendment.

§174.1.Appointment in Criminal Cases.

An Attorney who meets the requirements of this rule may be appointed to represent an indigent person arrested for or charged with a crime, if the attorney is otherwise eligible under the procedures developed under Article 26.04, Code of Criminal Procedure. Crime has the meaning assigned by §173.102(3) [§173.2(2)]. An attorney may be appointed under this rule only if an attorney:

(1) Completes a minimum of six hours of continuing legal education pertaining to criminal law during each 12-month reporting period. The judges of criminal courts of the county shall set the 12-month reporting period applicable to the jurisdiction. Continuing legal education may include activities accredited under Section 4, Article XII, State Bar Rules, self-study, teaching at an accredited continuing legal education activity, attendance at a law school class or legal research-based writing. The judges may require attorneys to complete more than the minimum number of hours of continuing legal education in criminal law in the procedures developed under Article 26.04, Code of Criminal Procedure; or

(2) Is currently certified in criminal law by the Texas Board of Legal Specialization.

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 October 4, 2017.

TRD-201704009

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: November 19, 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 proposes amendments to Texas Administrative Code, Title 1, Part 8, Chapter 174, Subchapter B, §§174.10 - 174.12, 174.16, and 174.21, concerning Contract Defender Program Requirements. The amendments are proposed 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.

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 amendments are in effect, enforcing or administering the sections will have no fiscal impact on state or local governments.

Ms. Henry has determined that for each year of the first five years there will be no material economic costs to persons who are required to comply with the amended sections, nor do the proposed amendments have any anticipated adverse effect on small or micro-businesses.

Jim Bethke, Executive Director, has determined that for each of the first five-year period the amendments 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 amendments.

Comments on the proposed amendments may be submitted in writing to Wesley Shackelford, Deputy Director, Texas Indigent Defense Commission, 209 West 14th Street, Room 202, Austin, Texas 78701 or by email to wshackelford@tidc.texas.gov no later than 30 days from the date that these proposed amendments are published in the Texas Register.

DIVISION 1. DEFINITIONS

1 TAC §174.10

The amendments are proposed under the Texas Government Code §79.034(a)(7). The Commission interprets §79.034(a)(7) as authorizing 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 proposed amendments.

§174.10.Subchapter Definitions.

The following words and terms when used in this subchapter shall have the following meanings, unless the context clearly indicates otherwise.

(1) Appointing Authority. The appointing authority is the:

(A) Judge or judges who have authority to establish an indigent defense plan and approve attorneys to represent indigent defendants in criminal cases under Article 26.04, Code of Criminal Procedure; and/or

(B) Juvenile board that has authority to establish an indigent defense plan and approve attorneys to represent indigent respondents in juvenile cases under §51.102, Family Code.

(2) Contract Defender Program. Contract defender program means a system under which private attorneys, acting as independent contractors and compensated with public funds, are engaged to provide legal representation and services to a group of unspecified indigent defendants who appear before a particular court or group of courts.

(3) Contracting Authority. The contracting authority is the county or counties that have the authority to conclude a contract and to obligate funds for the provision of indigent defense services.

(4) Contractor. The contractor is an attorney, law firm, professional association, lawyer's association, law school, bar association, non-profit organization or other entity that can be bound by contract.

(5) Itemized Fee Voucher. An itemized fee voucher is any instrument, such as an invoice, that details services provided by a contractor providing indigent defense services. The itemized fee voucher may be in paper or electronic form. It shall include at a minimum all the information necessary for the county auditor or other designated official to complete the expenditure report required to be submitted to the Texas Indigent Defense Commission [Office of Court Administration] by §79.036 [§71.0351 ], Government Code.

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 October 4, 2017.

TRD-201704006

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: November 19, 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 proposed under the Texas Government Code §79.034(a)(7). The Commission interprets §79.034(a)(7) as authorizing 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 proposed amendments.

§174.11.Application of Subchapter.

This Subchapter applies to all contract defender programs in which legal representation is provided for a period of more than one week. Contract defender programs for terms of one week or less are governed by the alternative appointment programs provisions in Article 26.04(g) - (h) and subject to §174.28(c)(5) related to the distribution of appointments in assigned counsel systems. This subchapter does not apply to public defender or managed assigned counsel programs established and governed by Chapter 26, Code of Criminal Procedure.

§174.12.Application Process.

The appointing authority shall solicit and select contractors in accordance with the procedure governing alternative appointment programs contained in Article 26.04, Code of Criminal Procedure.

(1) Notification. The notification of the opportunity to apply (NOA) to be a contractor shall be distributed in a manner that reasonably covers all practicing members of the bar within the county or other region designated by the appointing authority. The notification shall inform attorneys of all requirements for submitting applications.

(2) Opportunity to Respond. All potential contractors shall have the same opportunity to respond to the NOA and be considered for the award of a contract. All potential contractors shall have at least 30 days from the issuance of the NOA to respond. The appointing authority may provide for less than 30 days to respond if a contract needs to be awarded on an emergency basis. A contract awarded on an emergency basis may not exceed 90 days in duration.

(3) Application. All applications must be submitted in writing and shall be maintained by the appointing authority or contracting authority in accordance with the Texas State Library and Archives Commission Retention Schedule for Local Records-Local Schedule GR.

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 October 4, 2017.

TRD-201704007

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: November 19, 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 proposed under the Texas Government Code §79.034(a)(7). The Commission interprets §79.034(a)(7) as authorizing 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 proposed amendments.

§174.16.Term of Contract.

The contract shall specify the term of the contract, including any provision for renewal [extensions], and a provision for terminating the contract by either party.

§174.21.Caseload Limitations.

The contract shall set the maximum number of cases or workload each attorney may be required to handle pursuant to the contract, which may include a maximum caseload not exceeding the annual full-time equivalent caseload established by the Guidelines for Indigent Defense Caseloads and the Juvenile Addendum and Appellate Addendum: Guidelines for Indigent Defense Caseloads, published by the Texas Indigent Defense Commission pursuant to House Bill 1318, 83rd Texas Legislature.

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 October 4, 2017.

TRD-201704008

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: November 19, 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 proposes an amendment to Texas Administrative Code, Title 1, Part 8, Chapter 174, Subchapter C, §174.28, concerning policy monitoring requirements. The amendment to §174.28(c)(3) is proposed to provide that attorneys appointed to represent indigent defendants must be approved for an appointment list. The amendment to §174.28(c)(5) is proposed to 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.

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 amendments are in effect, enforcing or administering the sections will have no fiscal impact on state or local governments.

Ms. Henry has determined that for each year of the first five years there will be no material economic costs to persons who are required to comply with the amendments, nor does the proposed amendments have any anticipated adverse effect on small or micro-businesses.

Jim Bethke, Executive Director, has determined that for each of the first five-year period the amendment is in effect the public benefit will be an improvement in the indigent defense services by assuring that attorneys are on an approved appointment list and by clarifying how the distribution of appointments is to be reviewed to assure a fairer distribution of appointments among qualified attorneys.

Comments on the proposed amendments may be submitted in writing to Wesley Shackelford, Deputy Director, Texas Indigent Defense Commission, 209 West 14th Street, Room 202, Austin, Texas 78701 or by email to wshackelford@tidc.texas.gov no later than 30 days from the date that these proposed amendments are published in the Texas Register.

The amendments are proposed 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 and §173.303 of this title. 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. [If the county can track attorney list changes, the monitor will only examine the distribution of cases for attorneys that were on the appointment list for the entire year.] 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 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 October 4, 2017.

TRD-201704010

Wesley Shackelford

Deputy Director

Texas Judicial Council

Earliest possible date of adoption: November 19, 2017

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