Overview of Indigent Defense

1. Overview of Indigent Defense Wesley Shackelford, Special Counsel Whitney Stark, Grants Administrator

2. Agenda • Overview of Agency • Recent Indigent Defense Legislation • Grants and Reporting Overview • Indigent Defense Expenditure Report • Formula Grants • Direct Disbursements • Discretionary Grants • Other Funding and Assistance • Monitoring • Policies and Standards Overview • Rules/Model Policies • Countywide Judicial Plans

3. Texas Task Force on Indigent Defense • In 2001 the 77th Texas Legislature passed the Fair Defense Act (SB 7) • In January 2002 the law became effective and the Task Force on Indigent Defense was created to administer statewide appropriations and policies.

4. Our Mission • The mission of the Task Force on Indigent Defense is to improve the delivery of indigent defense services through: • fiscal assistance • accountability and • professional support to State, local judicial, county, and municipal officials. • The purpose of the Task Force is to promote justice and fairness to all indigent persons accused of criminal conduct, including juvenile respondents, as provided by the laws and constitutions of the United States and Texas

5. Core Requirements of the Fair Defense Act 1. Conduct prompt and accurate magistration proceedings: • Inform and explain right to counsel to accused; • Provide reasonable assistance to accused in completing necessary forms to request counsel; • Maintain magistrate processing records. 2. Determine indigence according to standards directed by the indigent defense plan. 3. Establish minimum attorney qualifications. 4. Appoint counsel promptly. 5. Institute a fair, neutral, and non-discriminatory attorney selection process. 6. Promulgate a standard attorney fee schedule and payment process.

6. Why We Do What We Do • When loss of liberty or life are at stake, the Constitution and laws of this state require government to provide an attorney and other defense costs on behalf of adult defendants and juvenile respondents who are financially unable to employ an attorney or pay other defense costs.

7. The Texas Constitution Article 1 - BILL OF RIGHTS Section 10 - RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS • In all criminal prosecutions the accused .......... shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses ....... (Amended Nov. 5, 1918.) CONSTITUTION OF THE UNITED STATES OF AMERICA   AMENDMENT 6 • Rights of the accused. In all criminal prosecutions, the accused shall enjoy the right to .............., and to have the Assistance of Counsel for his defense.

8. Legislative Update- 80th Legislature HB 1- General Appropriations Bill • $ 31.6 million over biennium FY 07 Distribution Scheme • Formula Grants 67% • Equalization Disbursements 17.5% • Discretionary Grants 13.5% • Direct Disbursements 1% • Extraordinary Disbursements 1%

9. Legislative Update- 80th Legislature SB 168 • Eliminates the 2007 sunset provision of the legal services fee paid by attorneys to support indigent defense = $ 2.1 million • Effective 5/22/07

10. Legislative Update- 80th Legislature HB 1267 • Boosts state indigent defense funding by 50 percent($15.4 million increase) (Total Projected $47 million per biennium) • Permits court appointed counsel to appeal a judge’s failure to act on a request for payment after 60 days

11. Legislative Update- 80th Legislature HB 1267 Continued… • Streamlines the payment system for paying attorneys for representing TDCJ inmates who are not be represented by the State Counsel for Offenders. • Effective 9/1/07

12. Legislative Update- 80th Legislature HB 1178 • Clarifies the process under which a court may obtain a waiver of the right counsel from a defendant. • Prohibits prosecutors from initiating or encouraging an unrepresented defendant to waive his right to counsel.

13. Legislative Update- 80th Legislature HB 1178 Continued… • Prohibits judges from encouraging unrepresented defendants to communicate with prosecutors until advising them of their right to counsel. • Effective 9/1/07

14. Legislative Update- 80th Legislature HB 2391- “Catch and Release” • Amends article 14.06 and 15.17, CCP to permit an officer to issue a citation in lieu of arrest for certain offenses. • Only applicable if person is detained in his county of residence. • Effective 9/1/07

15. Indigent Defense Expense Report(IDER) • Required by Statute From County Auditors Tex. Gov't Code § 71.0351. Indigent Defense Information • Treasurers, if no auditor • Counties report their indigent defense expenditures for the previous fiscal year • Online report - Due November 1 of each year • All Counties must submit regardless of whether they receive grant funds

16. IDER - Uses • Used to determine if a county meets minimum spending requirements to qualify for grant funds • Used to calculate Equalization Disbursements • Basis for Task Force’s Annual report to the Governor and Legislature and for Research • Helps identifies risk factors for monitoring • Used by counties to compare their activities to other counties and state.

17. Formula Grants • Formula Based on Texas State Data Center Population Estimate • Floor $5,000 • $12 Million Available Statewide • Application for FY08 was due in October 2007 • Awards expected on December 12, 2007

18. Direct Disbursements • Counties with both low incidence of crime and low indigent defense costs can receive reimbursement for direct indigent defense costs above the county’s baseline (2001) expenses • Eligibility • County did not apply for formula grant • Countywide Judicial Plan documents on file and meet FY08 grant requirements

19. Direct Disbursements • Counties not applying in the current year and did not spend grant funds in previous year may be eligible for twice their allocation • Subject to availability of funds • Send in Application no later than August 15 each year

20. Equalization Disbursement • Developed to ensure all Texas Counties are reimbursed for a minimum percentage of increased indigent defense costs • The minimum percentage of reimbursement changes each year based on counties’ reported expenditures and the availability of funds • The Equalization formula & list of counties receiving this disbursement will be posted on the Task Force website

21. Discretionary Grant • Competitive Application Process • Match Required • Priority Funding for Programs or processes that: • Improve indigent defense services. • Develop a model program or can be duplicated in other jurisdictions. • Involve multiple counties coordinating their submission.

22. Discretionary GrantPriority Funding • Provide direct services to indigent defendants • Establish a public defender office • Establish a regional public defender office • Establish a mental health defender service • Programs that provide juvenile defender services.

23. Discretionary Grants • Single-Year • Minimum application of $TBD • FY08= $10K • Maximum application of $TBD • FY08= $100K • Multi-Year • Minimum application of $TBD • FY08= $50K • Maximum application of $TBD • FY08= $500K

24. FY2009 Discretionary Grants Application Cycle • Request for Applications in December 2007 • Intent to Submit in February 2008 • Full Application in April 2008 • Award in May 2008 • Funding Cycle – October 1, 2008 through September 30, 2009

25. Technical Support • Projects that increase the knowledge base about indigent defense in Texas • Must result in a paper about the process and the outcome • May include indigent defense evaluation or actual application of a plan or process • Subject to availability of staff time or funds • Submit requests to Task Force Director

26. Research • Wichita Public Defender Office Evaluation • Dallas Public Defender Office Evaluation • Impact of Direct Electronic Filing in Criminal Cases • Costs/Benefits of Indigent Defendant Verification

27. Extraordinary Disbursement • Counties may seek reimbursement for direct indigent defense costs above an amount equivalent to the county’s baseline (FY01) expenses plus their current formula grant award • Subject to availability of funds at the end of the state fiscal year • Demonstrate why this increased expense is constituting a financial emergency • Task Force budgeted $350,000 for FY08

28. Fiscal Monitoring • Since 2003 • Baseline expenses • Expenses related to indigent defense • Capital / Equipment • Reporting practices

29. Program Monitoring • Since 2006 • Court processes consistent with plan and core requirements of statute • Local plan implementation tracking

30. FY2006 Program MonitoringCORE LEGAL REQUIREMENTS • Timeframes for appointment of counsel • Minimum attorney qualifications • Fair, neutral, and non-discriminatory attorney selection process • Standard of indigence • Standard attorney fee schedule and payment process

31. Countywide Judicial Plan • Must Include: • Local Indigent Defense Process • Core Legal Requirements (Fair Defense Act) • Standards Adopted by Task Force • Submitted By: • Local Admin District and Statutory Judge • Juvenile Board • Due: • Annually by November 1st in Odd Numbered Years

32. Rules/Model Policies Rules Promulgated: • Contract Defender Programs • Continuing Legal Education (CLE) for Attorneys • Grant Administration Model Forms/Procedures: • Affidavit of Indigence • Attorney Fee Voucher • Magistrate Warning (English & Spanish) • Procedure for appeal of fee disapproval

33. Task Force Websites (handout) • Homepage: www.courts.state.tx.us/tfid • Access to: publications & resources, information on legislation, policies, grants & more • Public Policy Research Institute (PPRI) • http://tfid.tamu.edu • Data management website for counties • Counties apply for grants, submit reports via this site • Each county’s data is viewable by public

34. THANK YOU www.courts.state.tx.us/tfid PO Box 12066 205 W. 14th Street – Suite 700 Austin, Texas 78701 512-936-6994