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					  “Senate Bill 7” Key Points for
     Indigent Defense Plans
From Rusty Bolts to a Well-Oiled
                Plan
       Judge Dib Waldrip
   433rd Judicial District Court
      Comal County, Texas
          830-221-1270
    waldrip@co.comal.tx.us
    RUSTY NUTS & BOLTS—
      Developing A Plan

•   ABA’s Ten Principles for Effective Public Defense
•   Texas Government Code §§ 71.051-.063
•   Texas Code of Criminal Procedure
•   Article 1.051 Right to Counsel
•   Article 15.17 Duties of Magistrate
•   Article 26.04 Indigent Defense Plan & Procedures
•   Article 26.05 Compensation of Appointed Counsel
•   Article 25.052 Death Penalty—reference only
•   Texas Family Code—reference only
•   Chapters 51 & 54 Juvenile Matters
•   Texas Administrative Code—reference only
•   Title 1, Part 8, Chapter 174.1-.4
WD-40 & ELBOW GREASE—
 Implementing The Plan


•   Document & Record
•   Screen Defendants Actively
•   Appoint Counsel Proficiently
•   Monitor Compliance
•   Enhance Public Trust
•   Instill Integrity—Avoid Rothgery
    and Willingham Issues
 RUSTY NUTS & BOLTS—
   Developing A Plan

• ABA’s Ten Principles for Effective Public
  Defense
• Independence
• Public Defender Office & Private Bar
• Expedient Screening
• Conference Time & Confidential Space
• Controlled and Managed Workload
• Case Complexity vs. Counsel’s
  Capabilities
• Continuous Representation
• Parity of Resources
• Continuing Legal Education
• Accountability: Audit and Appraisal
    RUSTY NUTS & BOLTS—
      Developing A Plan
• Texas Government Code §§ 71.051-.063
• § 71.060 Policies and Standards:
• Performance Standards
• Qualification Standards
• Caseload Standards
• Indigency Standards
• Assigned Counsel Standards
• Public Defender Standards
• Contract Defender Standards
• Appointed Counsel Compensation
  Standards
• Indigent Support Services Compensation
  Standards
• Indigent Legal Services Standards
    Texas Code of Criminal
          Procedure
• Article 1.051 Right to Counsel
• (b) Indigency—not financially able to employ

• (c) Right to Appointed Counsel
• 1. Punishment by confinement
• 2. Entitled to (indigent) and Requests
• 3. When Adversarial Judicial Proceedings are
  Initiated—15.17 hearing
• 4. Not later than 3/1 Working Days

• (j) Indigent Defendant Not in Custody
• 1. Appointment required after the first of:
•       A court appearance, or
•       Adversarial Judicial Proceedings are
        Initiated—15.17 hearing—Rothgery
• 2. Entitled to and Requests
• NOTE: No specific time provided
    Texas Code of Criminal
          Procedure
• Article 15.17 Duties of Magistrate
• (a) Within 48 Hours
• 1. SHALL Admonish of Rights X7
• 2. SHALL Inform of Right to Request
  Appointment of Counsel
• 3. SHALL Inform of Procedures to
  Request Appointment
• 4. SHALL Ensure Reasonable
  Assistance to Complete Forms to
  Request Appointment
• 5. SHALL Admit Person Arrested to
  Bail if allowed by law
    Law of Unintended
     Consequences—
• Very next sentence in Art. 15.17
  (a) states:
• “A recording of the
  communication between the
  arrested person and the
  magistrate shall be made.”
• Result of an Amendment by HB
  2120 in the 79th Regular Session
  in 2005 to move language relative
  to defining an “electronic
  broadcast system.”
            H.B. No. 2120
• BE IT ENACTED BY THE LEGISLATURE OF THE
  STATE OF TEXAS:
•
• SECTION 3. Article 15.17(a), Code of Criminal
  Procedure, is amended to read as follows:
• (a). . . . The magistrate shall allow the person
  arrested reasonable time and opportunity to
  consult counsel and shall, after determining
  whether the person is currently on bail for a
  separate criminal offense, admit the person
  arrested to bail if allowed by law. A closed circuit
  television system may not be used under this
  subsection unless the system provides for a two-
  way communication of image and sound between
  the arrested person and the magistrate. A
  recording of the communication between the
  arrested person and the magistrate shall be
  made. . . . . .
        H.B. No. 2120

• . . . . . The counsel for the
  defendant may obtain a copy of
  the recording on payment of a
  reasonable amount to cover costs
  of reproduction. For purposes of
  this subsection, "electronic
  broadcast system" means a two-
  way electronic communication of
  image and sound between the
  arrested person and the
  magistrate and includes secure
  Internet videoconferencing.
           H.B. No. 2120
•   BILL ANALYSIS
•
•   Senate Research Center C.S.H.B. 2120
•   79R18418 MXM-F By: Allen, Ray (Lindsay)
•   Jurisprudence
•   5/20/2005
•   Committee Report (Substituted)
•
• AUTHOR'S/SPONSOR'S STATEMENT OF
  INTENT
• . . . . C.S.H.B. 2120 amends various statutes
  to clarify the roles and responsibilities of
  the local governments, including among
  others . . . allowing for more counties to
  employ special counsel . . . .
        BILL ANALYSIS
    Senate Research Center
        C.S.H.B. 2120
• ................
• SECTION 3. Amends Article 15.17(a),
  Code of Criminal Procedure, to
  authorize the image of the arrested
  person to be presented, rather than
  broadcast by closed circuit television,
  to the magistrate by means of an
  electronic broadcast system. Deletes
  existing text prohibiting a closed circuit
  television from being used under this
  subsection unless the system provides
  for a two-way communication of image
  and sound between the arrested person
  and the magistrate. Defines "electronic
  broadcast system." Makes conforming
  changes.
        Law of INTENDED
         Consequences:
• Art. 15.17
• (e) In each case in which a person arrested is
  taken before a magistrate as required by
  Subsection (a), a record shall be made of:
• (1) the magistrate informing the person of the
  person's right to request appointment of
  counsel;
• (2) the magistrate asking the person whether
  the person wants to request appointment of
  counsel; and
• (3) whether the person requested appointment
  of counsel.
•
• (f) A record required under Subsection (e) may
  consist of written forms, electronic recordings, or
  other documentation as authorized by
  procedures adopted in the county under Article
  26.04(a).
   Texas Code of Criminal
         Procedure
• Article 26.04: Indigent Defense Plans and
  Procedures
• (a) Judges, by local rule, shall adopt and
  publish written procedures
• Courts shall use a rotation unless: (f) public
  defender; (h) alternative program; or (i) in
  felonies, attorney within administrative
  region
• Appoint attorney among next five names
  unless: deviation is supported by a finding
  of good cause; or (c) Defendant does not
  speak and understand English
• (b) Appointments must be made only by
  appropriate court or court’s designee
•      (6) ensure appointments . . . “fair,
  neutral, and nondiscriminatory.”
  Texas Code of Criminal
        Procedure
• Article 26.04:
• (d) Appointment List shall contain
  attorneys who:
•     1. Apply
•     2. Meet local qualifications
•     3. Meet task force qualifications
•     4. Approved by majority of
  judges of appropriate courts
• (e) Multiple appointment lists
  graduated by seriousness of offense
  relative to attorney qualifications
  Texas Code of Criminal
        Procedure
• Article 26.04:
• (g) County-wide alternative
  appointment program if:
• Approved by 2/3 of judges in
  applicable court; and
• (h) approved by the presiding judge
  of the administrative judicial region
• (g)(D) alternative program must
  ensure that “appointments are
  reasonably and impartially
  allocated among qualified
  attorneys.”
   Texas Code of Criminal
         Procedure
• Article 26.04
• (j)(1) Appointed attorney shall . . . contact
  the defendant within first working day and
  interview defendant as soon as practicable.
• (k) Court may replace appointed counsel
  who violates (j)(1)
• Majority of judges of appropriate courts
  may remove attorney from appointment
  list if attorney intentionally or repeatedly
  violates (j)(1).
• (l) Procedures under (a) “must include
  procedures and financial standards for
  determining whether a defendant is
  indigent”—regardless of whether
  defendant is in custody or released on bail.
•        Ref: Article 1.051 (b) Indigency—not
  financially able to employ counsel
   Texas Code of Criminal
         Procedure
• (m) list of factors to consider regarding
  indigency—“may not consider whether
  the defendant has posted or is capable
  of posting bail, except to the extent
  that it reflects the defendant’s financial
  circumstances . . .”
• (n) & (o) require defendant requesting
  appointment of counsel swear to the
  truth of answers provided concerning
  his or her financial resources
• (q) Statements elicited under art. 26.04
  may be used against the defendant,
  except for prosecutions under Chapter
  37 of the Penal Code.
    Texas Code of Criminal
          Procedure
       • Article 26.05 Compensation of
                Appointed Counsel
•   (a) Fee based upon time, labor,
    complexity, experience and ability of
    counsel.
•   (b) Schedule of fees adopted by formal
    action of judges
•   (d) Reimbursement for reasonable &
    necessary expenses—investigation &
    experts
•   (g) Authorizes courts to order a
    defendant to pay for legal expenses and
    costs if defendant is determined to have
    financial resources that enable such
    payment in whole or in part.
WD-40 & ELBOW GREASE—
 Implementing The Plan
• Document & Record:
• Art. 15.17 (a) Time & Date of Arrest vs.
  Time & Date of Magistration
• Art. 15.17 (e):
• (1) Magistrate informing Defendant of
  right to request appointed counsel;
• (2) Magistrate asking if Defendant
  wants to request appointed counsel;
• (3) Whether the Defendant requested
  appointed counsel.
• Art. 1.051 (c) & (j) Time & Date of
  Appointment
• Art. 26.04 Good Cause finding for
  deviating from rotation
• Art. 26.04 (j) Attorney compliance with
  initial contacts
WD-40 & ELBOW GREASE—
 Implementing The Plan
• Screen Defendants Actively:
• 26.04 (m) Develop a precise standard for
  determining indigency:
• Defendant’s income, source of income,
  assets, property owned, outstanding
  obligations, necessary expenses,
  number and ages of dependents, and
  spousal income
• http://aspe.hhs.gov/poverty/09poverty.
  shtml
• Best practice is Q & A with Magistrate or
  other designee writing answers
•
• Q: Do you have counsel on any matters
  currently pending within 50-100 miles?
WD-40 & ELBOW GREASE—
 Implementing The Plan
• Appoint Counsel Proficiently:
• Follow Your Plan:
• Rotation—“fair, neutral and
  nondiscriminatory”—Art. 26.04(b)(6)
• Alternative Program—“reasonably and
  impartially”—Art. 26.04(g)(2)(D)
• Allow attorneys willing to take limited
  numbers or types of appointed cases
• In felony cases, courts may appoint an
  attorney (presumably meeting other
  qualifications) in any county located in
  the court’s administrative judicial
  region—Art. 26.04(i)
• Document All Deviations:
• Good Cause Finding—Art. 26.04(a)
• Non-English Speaker—Art. 26.04(c)
      Other Good Cause?

•   Represented on Prior Case
•   Represents in other Jurisdiction
•   Specializes in Type of Case
•   ?
•   ?
•   Other Expertise—High Profile
•   In felony cases, courts may
    appoint an attorney in any county
    located in the court’s admin.
    judicial region—Art. 26.04(i)
      Other Good Cause?

•   Juveniles
•   1st Detention Hearing
•   Attorney was 1st Available
•   In Court on other matters
•   ?
•   ?
WD-40 & ELBOW GREASE—
 Implementing The Plan
• Monitor Compliance:
• Annual CLE Reporting
  Requirement
• Post-appointment:
• Acknowledging receipt of
  appointment
• Report of initial “contact” with
  client not later than end of one
  working day after date of
  appointment
• Report with client’s signature of
  date client was interviewed
WD-40 & ELBOW GREASE—
 Implementing The Plan
• Enhance Public Trust
• Texas Government Code § 71.060
  Policies and Standards:
• 1. Performance Standards
• 2. Qualification Standards
• 3. Caseload Standards
• 4. Indigency Standards
• 5. Assigned Counsel Standards
• 6.—10.
WD-40 & ELBOW GREASE—
 Implementing The Plan
• Enhance Public Trust
• Implement a verification process of info
  provided that achieves a fair balance
  between providing the right to counsel
  with protecting public coffers—Texas
  Code of Criminal Procedure art. 26.05(g)
• Sworn Affidavits of Indigency
• http://www.courts.state.tx.us/tfid/Affid
  avits_of_Indigency_Introduction.asp
• Authorization to verify employer info
• Authorization to verify financial
  institution info
• Authorization to verify income info—
  Texas Workforce Comm.
• Authorization to run a credit check
• Private Vendors
WD-40 & ELBOW GREASE—
 Implementing The Plan
• Instill Integrity in the System—Avoid
  Rothgery & Willingham Issues
• Develop a Plan & Follow It
• Screen Actively—Not Passively
• Determine Indigency & Verify
  Appropriately—CCP art. 26.05(g)
• Appoint Counsel or Obtain Valid
  Waivers—CCP art. 1.051 (f), (f-1), & (f-
  2)—if waived, 10-day reset
• Document Good Cause for Deviations
  from the Plan
• Monitor Appt. Attorney Compliance
• Pay reasonable & necessary legal fees
  and investigative expenses—Avoid
  ineffective assistance—Willingham
    Judge Dib Waldrip
433rd Judicial District Court
   Comal County, Texas
       830-221-1270
 waldrip@co.comal.tx.us

				
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