PART 8. TEXAS JUDICIAL COUNCIL
CHAPTER 174. INDIGENT DEFENSE POLICIES AND STANDARDS
SUBCHAPTER C. POLICY MONITORING REQUIREMENTS
DIVISION 2. POLICY MONITORING PROCESS AND BENCHMARKS
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 C, Division 2, §174.28, concerning On-Site Monitoring Process.
EXPLANATION OF PROPOSED AMENDMENTS
The proposed amendment to §174.28(c)(4) requires the policy monitor to make a finding if the monitor finds the court did not explain the procedures for requesting counsel or identifies cases in which a defendant entered an uncounseled plea while having a pending counsel request.
The proposed amendments to §174.28(c)(5) provide that in counties with a public defender's office, the monitor will determine if appointments to the office are made in accordance with Article 26.04(f), Code of Criminal Procedure, the priority appointment of public defender's statute.
The proposed amendments to §174.28(c)(5) add requirements related to attorney appointments in capital felony cases. In a county with a public defender's office that accepts capital appointments, the monitor will verify that the office is appointed in each capital case. If the office was not appointed in each case, the policy monitor shall determine whether the court or its designee made a finding of good cause on the record for appointing other counsel in accordance with Article 26.04(f)(1).
The proposed amendments to §174.28(c)(5) also require that in capital felony cases where a public defender's office was not appointed, the policy monitor shall determine if two attorneys were appointed and whether at least one attorney was qualified to serve as lead counsel under Article 26.052(e), Code of Criminal Procedure. If one attorney was appointed, the policy monitor shall determine whether the State filed written notice that it is not seeking the death penalty and the date the notice was filed.
The proposed amendments to §174.28(d)(1) provide that staff shall submit draft policy monitoring reports to the Policies and Standards Committee, rather than to the county, for review within 60 days after the date staff receives all required data for the review, rather than within 60 days of a site visit. The first part of the amendment is proposed since the Committee review process can sometimes take a few weeks to complete, especially when changes to a report are needed. The second part of the amendment is proposed because some monitoring reviews are now fully remote and because delays in receiving needed data from counties often leads to staff not meeting the timeline in the current version of the rule.
The proposed amendments to §174.28(d)(3) provide that in the case of a follow-up review report, a county may receive an extension beyond the two 30-day periods provided for in the current rule if the county demonstrates it has extenuating circumstances that are approved by the Executive Director.
The proposed amendments to §174.28(d)(4) require only formula grant payments, rather than all grant payments, be withheld if a county does not respond to a policy monitoring report within 10 days of receipt of a certified letter notifying the local officials. This would assure that improvement grant-funded programs such as public defender offices are not immediately jeopardized.
The proposed amendments to §174.28(d)(5) specify the Commission may require regular reporting of data to determine if process changes are being implemented and their impact on compliance when counties fail to come into compliance after multiple reviews. Currently, the only processes specified are to impose a remedy for noncompliance under §173.307, Texas Administrative Code, such as withholding grant funds.
FISCAL NOTE
Mr. Scott Ehlers, Executive Director, Texas Indigent Defense Commission, 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.
PUBLIC BENEFIT AND COSTS
Mr. Ehlers 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 helping the Commission assure the requirements of federal and state law related to indigent defense are followed. There are no anticipated economic costs to persons required to comply with the proposed amendments. There will be no adverse economic effect on small businesses, micro-businesses, or rural communities, therefore, preparation of an economic impact statement and a regulatory flexibility analysis is not required.
GOVERNMENT GROWTH IMPACT STATEMENT
Mr. Ehlers has determined that for each year of the first five years in which the proposed amendments are in effect, the amendments will have the following effect on government growth. The proposed amendments will not create or eliminate any government programs or employee positions. Additionally, the proposed amendments will not require an increase or decrease in future legislative appropriations to the Commission or change any fees paid to the Commission. The proposed amendments do not create a new regulation. The proposed amendments expand certain existing regulations, including by providing for a monitoring visit to be conducted as a result of findings from a previous visit, a complaint, or media reports indicating a potential violation of laws related to indigent defense. The proposed amendments would not repeal any rules, nor increase or decrease the number of individuals subject to the applicability of the rules. The proposed amendments are not anticipated to affect this state's economy.
SUBMITTAL OF COMMENTS
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.
STATUTORY AUTHORITY
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 monitoring 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. The policy monitor will determine if any waivers of counsel do not comply with the requirements of Article 1.051, Code of Criminal Procedure. The policy monitor will make a finding if the monitor finds the court did not always explain the procedures for requesting counsel to unrepresented defendants or identifies any cases where a defendant requested counsel and later entered an uncounseled plea without their counsel request being ruled upon.
(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 appointments of counsel and denials of indigence determinations in the policy monitor's sample are timely.
(5) Attorney Selection Process. The policy monitor shall check for the following 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 public defender's office, that appointments to the office are made in accordance with Article 26.04(f), Code of Criminal Procedure.
(C) In capital felony cases, the policy monitor shall determine if appointments are made in accordance with Article 26.052, Code of Criminal Procedure.
(i) In counties with a public defender's office that handles capital felony cases, the policy monitor shall determine if a public defender's office is appointed in each capital case. If the office is not, the policy monitor will determine whether the court or its designee made a finding of good cause on the record for appointing other counsel in accordance with Article 26.04(f)(1), Code of Criminal Procedure.
(ii) In capital felony cases where a public defender's office is not appointed, the policy monitor shall determine if two attorneys were appointed, at least one of whom is qualified to serve as lead counsel under Article 26.052(e), Code of Criminal Procedure, unless the state gives notice in writing that the state will not seek the death penalty.
(D) [(B)] In the case of a managed
assigned counsel program, that counsel is appointed according to the
entity's plan of operation;
(E) [(C)] That the attorney
selection process actually used matches what is stated in the indigent
defense plans; and
(F) [(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 of 26.04(b)(6), Code of Criminal Procedure, 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 only attorneys who were on an appointment
list for the entire time period under review.
(6) Data Reporting. 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. For full and limited-scope reviews,
the policy monitor shall submit a draft [issue a]
report to the Commission's Policies and Standards Committee [authorized official] within 60 days after staff receives
required data for the monitoring review [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 date required data is received [on-site monitoring visit]. The report shall contain recommendations
to address findings of noncompliance. For drop-in visits, the policy
monitor may issue a letter with recommendations.
(2) County Response. Within 60 days of the date a report is issued by the policy monitor to the county, 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 a 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 a 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. If the county provides extenuating circumstances, the Executive Director may grant an additional extension of time to respond.
(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 shall [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 formula grant payments will be withheld
if no response to a report is received by the Commission within 10
days of receipt of the letter. If formula grant 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 require regular additional reporting of data to determine if process changes are being implemented, and other requirements, as appropriate. The Commission may also impose a remedy under §173.307 of this title (relating to Remedies for Noncompliance).
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 September 19, 2024.
TRD-202404525
Wesley Shackelford
Deputy Director
Texas Judicial Council
Earliest possible date of adoption: November 3, 2024
For further information, please call: (737) 279-9208