1 Court Appointed Attorneys: Indigent Defense2017 CDCAT Winter Conference San Marcos, TX February 9, 2017 Texas Indigent Defense Commission Wesley Shackelford, Deputy Director

2 Who We Are What We Do Our Purpose Our Grant ProgramThirteen-member governing board administratively attached to the Office of Court Administration.  Jim Bethke is the Executive Director. The Commission has eleven full-time staff. OFFICERS: Honorable Sharon Keller Chair – Presiding Judge, Court of Criminal Appeals EX OFFICIO MEMBERS: Honorable Sharon Keller Austin, Presiding Judge, Court of Criminal Appeals Honorable Nathan Hecht Austin, Chief Justice, Supreme Court of Texas Honorable Sherry Radack Houston, Chief Justice, First Court of Appeals Honorable Linda Rodriguez Hays County Honorable Brandon Creighton Conroe, State Senator Honorable John Whitmire Houston, State Senator Honorable Andrew Murr Junction, State Representative Honorable Abel Herrero Robstown, State Representative MEMBERS APPOINTED BY GOVERNOR: Honorable Missy Medary Corpus Christi, Presiding Judge, 5th Administrative Judicial Region of Texas & Judge, 347th Judicial District Court, Nueces County Honorable Jon Burrows Temple, Bell County Judge Honorable Richard Evans Bandera, Bandera County Judge Mr. Alex Bunin Houston, Chief Public Defender, Harris County Public Defender’s Office Mr. Don Hase Arlington, Attorney, Ball & Hase Our Purpose Is to provide financial and technical support to counties to develop and maintain quality, cost-effective indigent defense systems that meet the needs of local communities and the requirements of the Constitution and state law. Our Grant Program In FY 2016 $31.5 million was disbursed to Texas counties. Formula grant awards totaled $25.1 million to all 254 counties. Discretionary grants totaled just over $6.4 million. Our Fiscal and Policy Monitoring Program The Commission monitors each county that receives a grant to ensure state money is being properly spent and accounted for and to enforce compliance by the county with the conditions of the grant, as well as with state and local rules and regulations. Our Innocence Program Since 2005, the Commission has provided up to $100,000 annually to University of Texas School of Law, the Texas Tech University School of Law, the Thurgood Marshall School of Law at Texas Southern University, and the University of Houston Law Center to operate innocence clinics. This funding has contributed towards 11 exonerations. In 2015 the 84th Legislature expanded funding to include $100,000 per year for two new public law schools at the University of North Texas Dallas College of Law and the Texas A&M University School of Law in Fort Worth.

3 The Fair Defense Act of 2001 Core Requirements:Prompt and accurate magistration hearings Develop a Standard of Indigence and Process to Determine Eligibility Minimum Attorney Qualifications Timely Appointment of Counsel Fair, neutral, and non-discriminatory attorney selection process Standard attorney fee schedule and payment process Local Reporting Requirements: Indigent Defense Plan (judiciary) Indigent Defense Expenditures and Attorney Case Count (auditor/treasurer) Practice Time Figures (criminal defense attorneys) Created Mechanism for (partial) state funding through grants

4 Timelines for Appointment of Counsel1 workday 1 or 3 workdays 48 hours 24 hours Appointing Authority Determines Indigence and Notifies Counsel Art (c) Arrest Magistration (Request for Counsel Taken) Art (a) Request for Counsel Received by Appointing Authority Art (a) Appointed Counsel Contacts Client Art (j)(1)

5 Front End Processing Issues48 hours 24 hours 1 or 3 workdays 1 workday Arrest Magistration (Request for Counsel Taken) Request for Counsel Received by Appointing Authority Appointing Authority Determines Indigence and Notifies Counsel Appointed Counsel Contacts Clients at Jail Issue 1: Defendants are not individually asked if they want to request counsel Issue 5: Pre-case filing events not centrally tracked, so timely processing not determinable Issue 3: Request does not get to appointing authority in timely fashion Issue 2: No assistance w/ affidavit or jailer assists w/ affidavit Issue 4: No ruling on request; No documentation of denial of indigence Issue 6: Uneven distribution of appointments to assigned counsel / high caseloads of appointed counsel

6 Court Clerk’s Role in ProcessCode of Criminal Procedure Art DUTY OF CLERKS. (a) In a criminal proceeding, a clerk of the district or county court shall: (1) receive and file all papers;… Records in Clerk’s file are critical for judge to know if a request for counsel has been made and ruled upon Invalid waivers of counsel is often the result when not in file

7 PROMPT AND ACCURATE MAGISTRATION PROCEEDINGSTexas Code Crim. Proc. Article 15.17 Hearing within 48 hours of arrest Magistrate must inform arrestee of right to appointed counsel Record must be made Magistrate must ensure reasonable assistance If not authorized to appoint counsel, must transmit forms to appointing authority within 24 hours of request

8 Model Magistrate Warning Form

9 Texas Code Crim. Proc. Article 26.04 STANDARD OF INDIGENCE Texas Code Crim. Proc. Article 26.04 The court must appoint counsel or determine the person is not indigent in accordance with the county’s financial standard. Court may consider various factors showing income, assets, and expenses of defendant and defendant’s spouse. Court may not consider bond or ability to post bond, “except to the extent that it measures the defendant’s financial circumstances.”

10 COMMON Standards Of INDIGENCEOf the 378 indigent defense plans in Texas, 348 use a percentage of the Federal Poverty Guidelines as the financial standard for determining eligibility. 125% is the most common percentage used (152 plans) 100% (122 plans) 150% (55 plans) Other financial standards and tests for indigence include whether the accused: Qualifies for a means-tested public benefit (328 plans) Resides in correctional/mental health facility (305 plans) Income less than necessary expenses per month (58 plans)

11 Useful Links County Plans Model Formshttps://tidc.tamu.edu/public.net/ Model Forms

12 Methods of Obtaining Financial InformationScreening – an interview in which the defendant is asked about expenses, income, and assets If the defendant has a contact number, he/she probably has expenses. If a defendant has expenses, he/she probably has some form of income. To obtain information about defendants status, you must invest the time to obtain the information.

13 Model Affidavit of Indigence

14 Timely Appointment of Counsel or Denial of IndigenceTexas Code Crim. Proc. Article 1.051 Must appoint counsel /deny indigence within 1 or 3 working days of receipt of request (counties over/under 250,000 population) Appointing authority should document appointment or denial to ensure proof of statutory compliance

15 Timely Appointment of Bonded DefendantsRothgery v. Gillespie County, 554 US 191 (2008). A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. 1 TAC § Indigent Defense Plan Requirements. The countywide procedures adopted under Art (a), Code of Criminal Procedure, must provide a method to allow defendants to obtain the necessary forms for requesting appointment of counsel and to submit completed forms for requesting appointment of counsel at any time after the initiation of adversary judicial proceedings.  Effective date: 4/13/2015, 40 TexReg 2087

16 Waivers of Counsel – to speak with prosecutorTexas Code Crim. Proc. Article 1.051 A defendant may voluntarily and intelligently waive in writing the right to counsel. A waiver obtained in violation of Subsection (f-1) or (f-2) is presumed invalid. Prosecutor may not communicate with defendant who has requested appointment of counsel unless court has denied the request Court must advise defendant of procedures for requesting counsel

17 Waiver of Counsel for Purposes of Speaking with a Prosecutor

18 Waivers of Counsel – to enter a pleaTexas Code of Crim. Proc. Article 1.051 (g) If a defendant wishes to waive the right to counsel for purposes of entering a guilty plea or proceeding to trial, the court shall advise the defendant of the nature of the charges against the defendant and, if the defendant is proceeding to trial, the dangers and disadvantages of self-representation. If the court determines that the waiver is voluntarily and intelligently made, the court shall provide the defendant with a statement substantially in the following form, which, if signed by the defendant, shall be filed with and become part of the record of the proceedings: "I have been advised this ______ day of __________, 2 ____, by the (name of court) Court of my right to representation by counsel in the case pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel. (signature of defendant)"

19 Waiver of Counsel for Purposes of Entering a Guilty Plea

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21 Attorney Selection processTexas Code Crim. Proc. Article 26.04(b)(6) Procedures shall ensure that appointments are allocated in a manner that is fair, neutral, and non-discriminatory 1 TAC § (c)(5)(C) A County is presumed to be in substantial compliance if percentage of appointments of the top 10% of recipient attorneys does not exceed three times their respective share.

22 Counsel for out of county arresteesClarifies the procedures for appointment of counsel for a person arrested and jailed in a county based on a warrant issued by a different county, which has been confusing under prior existing law.     Out of County Arrest Contacts:

23 Decreasing Rates of Pro Se Misdemeanor DefendantsSince 2011, when OCA began tracking the number of retained cases, the percentage of pro se misdemeanor cases has decreased % of Pro Se Misdemeanor Dispositions FY 11 FY 12 FY 13 FY14 FY15 Statewide 33.2% 28.8% 27.5% 25.4% 23.8% Counties Under 50k Pop. 68.7% 66.3% 66.4% 63.5% 61.7% Counties Between 50k & 250k Pop. 56.9% 50.8% 48.4% 46.6% 42.5% Counties Over 250k Pop. 19.6% 15.2% 13.3% 11.6% 11.3% The number of pro se dispositions can be estimated by the following formula: Pro Se Dispositions = Total Dispositions – Total Retained Cases – Total Cases in Which Attorneys were Paid

24 Since Passage of the FDA, Appointment Rates Have IncreasedHeckman vs. Williamson County filed (2006) and settled (2013) Other Significant Events Rothgery vs. Gillespie County (2008) 82nd Legislature amended Art dealing with waivers of counsel (2008)

25 85th Legislative SessionFunding Levels & Hot Topics in 85th Legislative Session

26 Texas Indigent Defense Expenditures (in millions) by Fiscal Year

27 State Funding of Indigent DefenseMore than half of states fully fund indigent defense.

28 Legislative Appropriations Request (LAR)Request for 2018/19: Restore 4 Percent Reduction in Base Funding - $2.87 million Support 50/50 State-County Funding for Statewide Regional Public Defender Office for Capital Cases (RPDO) - $2.9 million Support Statewide Funding for Early Identification and Representation of Defendants with Mental Illness - $10 million Fully Funding Criminal Indigent Defense - $212.2 million 50% funding in FY18/19 75% FY20/21 100% FY22/23

29 Hot Topic: Pre-Trial Release PracticesTexas Judicial Council studied pre-trial practices and found: Percent of inmates in Texas jails awaiting trial has increased from 32% in 1994 to 75% today 3 Days Count Worse Outcomes in court Higher recidivism Collateral consequences

30 Hot Topic: Pre-Trial Release PracticesTexas Judicial Council recommends: Validated Risk Assessment pre hearing Presumption of personal bond (but judicial discretion) Permit pre-trial detention of high risk defendants without bail Require judicial findings & hearing

31 Hot Topic: Pre-Trial Release PracticesHouse Criminal Jurisprudence and House County Affairs Committees joint charge to: “Review pretrial service and bonding practices throughout the state. Examine factors considered in bail and pre-trial confinement decisions, including the use of risk assessments; assess the effectiveness and efficiency of different systems in terms of cost to local governments and taxpayers, community safety, pretrial absconding rates and rights of the accused.”

32 Hot Topic: Pre-Trial Release PracticesSenate Criminal Justice Committee recommendations: Mandate greater use of pretrial risk assessment & PR bonds for non-violent offenders Least restrictive conditions based on D’s risk factors Permit “rocket dockets” for certain low-level offenses that affect those with mental illness disproportionately with time- frames for disposition (e.g. 30 days)

33 “Hot Topics”: Mental Health / Criminal JusticeSenate Health & Human Services Committee made recommendations: Expand Capacity of inpatient forensic beds at state hospitals Senate Criminal Justice Cmte also recommends this Contracting community forensic beds (closer to home / cheaper) Expand successful Outpatient Competency Restoration Programs Consider restricting commitment to a state hospital if charged with a Class B misdemeanor

34 “Hot Topics”: Mental Health / Criminal JusticeHouse Select Committee on Mental Health was charged with a broad review of mental health services and programs across agencies. Recently released report made recommendations: Expand crisis intervention & jail diversion programs (esp. regional crisis intervention teams) Review suspension rather than “termination” of Medicaid benefits for those in jail. Provide judges more options to restore competency (jail and outside of jail / not just state hospitals) Require more judicial education on how to address mental health issues. Require collection of consistent data to evaluate specialty court outcomes