| (a) Purpose. The 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.
(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 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 managed assigned counsel program,
that counsel is appointed according to the entity's plan of operation;
(C) That attorney selection process actually used matches
what is stated in the indigent defense plans; and
(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
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 issue a report to the authorized official
within 60 days 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 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, 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.
(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 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 payments will
be withheld if no response to a report is received by the Commission
within 10 days of receipt of the letter. If 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 impose a remedy under §173.307
of this title (relating to Remedies for Noncompliance).
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