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“Senate Bill 7” Key Points for Indigent Defense Plans From Rusty Bolts to a Well-Oiled Plan Judge Dib Waldrip 433 rd Ju

“Senate Bill 7” Key Points for Indigent Defense Plans From Rusty Bolts to a Well-Oiled Plan Judge Dib Waldrip 433 rd 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

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“Senate Bill 7” Key Points for Indigent Defense Plans From Rusty Bolts to a Well-Oiled Plan Judge Dib Waldrip 433 rd Ju

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  1. “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

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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

  7. 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

  8. 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.”

  9. 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. . . . . .

  10. 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.

  11. 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 . . . .

  12. BILL ANALYSISSenate 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.

  13. 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).

  14. 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.”

  15. 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

  16. 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.”

  17. 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

  18. 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.

  19. 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.

  20. 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

  21. 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?

  22. 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)

  23. 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)

  24. Other Good Cause? • Juveniles • 1st Detention Hearing • Attorney was 1st Available • In Court on other matters • ? • ?

  25. 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

  26. 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. IndigencyStandards • 5. Assigned Counsel Standards • 6.—10.

  27. 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/Affidavits_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

  28. 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

  29. Judge Dib Waldrip 433rd Judicial District Court Comal County, Texas 830-221-1270 waldrip@co.comal.tx.us

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