Tuesday, February 21, 2012

Few defendants getting surcharges waived by judges based on indigence

Thousands of  Texas drivers have successfully applied for waivers of most of their Driver Responsibility surcharges under new rules implemented by the Public Safety Commission last year. But only a handful of defense attorneys have asked judges to declare their clients eligible to have their surcharges waived entirely after a little-publicized law took effect September 1 empowering judges to order surcharges in new cases waived for indigent defendants.

According to Tom Vinger with DPS' media relations, the agency began receiving court orders from judges waiving surcharges based on indigency (under an amendment authored by state Rep. Sylvester Turner) in October 2011, and despite their earlier representation, DPS now says they "process the court order once the conviction is placed on the record. There have only been 29 orders received and 13 processed." That's discouraging. I'm certain there have been many more DWIs pled out than that with clients who qualified for indigence waivers. I'm not an attorney and certainly no expert on what constitutes a successful bar grievance, but IMO it borders on ineffective assistance for a defense attorney not to apply for an indigency waiver on DWIs or other surcharge-eligible offenses when their client qualifies - even though surcharges are technically a separate, civil matter, it's a direct collateral consequence of the conviction.

In any event, where the real action has been is under the Indigence rules created  (to their credit) by the Public Safety Commission. As of January 9, DPS had received 19,668 applications for reduction of surcharges under DPS indigence rules, and had approved 18,249 of them, or 92%. In addition, more than 100,000 drivers - about one in seven of those eligible - applied for and received amnesty last spring, so the new rules pushed by Grits and the good folks at the Texas Fair Defense Project so far have helped more than 120,000 people regain their drivers licenses.

Why aren't appointed defense attorneys asking judges for a waiver of surcharges for their indigent clients when they're eligible? I have no idea but it surprises me so few have done so. The statute has been on the books since 2009, though it only took effect Sept. 1, 2011, so the defense bar should have had time to educate themselves and prepare to use it. By contrast, I'm glad to see significant numbers of people are successfully applying for surcharge reductions (to $250 or less) under the (relatively) new DPS rules.

Grits also asked DPS for more information on when the "Incentive" rules - mandated by the Lege to be implemented sometime this biennium - might take effect. (They're already on the books, the Public Safety Commission just needs to pull the trigger and make them take effect.) More on that when I hear back.


A Texas PO said...

It's not surprising to me that defense attorneys aren't providing this information or filing motions for these waivers. After all, many attorneys still tell their clients that taking a plea for deferred adjudication will automatically result in an expunction.

hyperqube said...

Filling out the form yourself is simple enough.

Anonymous said...

I just want to say that you to Grits because I am one of those thousands of people who was able to get surcharges cleared and become eligible to drive. Thanks!

Anonymous said...

Grits: Appointed defense attorneys represent the defendant for the purposes of the criminal case only. Driver license matters are civil/administrative, and are not part of the criminal case. Appointed attorneys are not "free;" someone has to pay them, and that someone (taxpayers) likely will not pay them to work on collateral civil matters for the defendant. They never have before -- defendants whose convictions will result in immigration consequences cannot and should not expect taxpayers to foot the bill to sort that out, either. You are entitled to counsel in a criminal case, period.

Paul Walcutt said...

I take court appointments in Travis and Williamson County. There are several reasons why I think so few of these waivers/orders have been filed:

1) Defendants fail to submit proof at sentencing. Since Jan. 1, I have been instructing all of my clients who I believe qualify under the federal poverty guidelines (125% is the cutoff that Travis County uses to determine indigency). Only one has brought proof with them to court on the plea date (I think the statute allows for last year's tax return, last pay stub, or proof of government assistance). I have pleaded with local judges to accept the fact that the person qualified for a court-appointed attorney, but given the dictates of the statute, they want to see the proof again.

2) Attorneys are unaware of the new provision or apathetic about it. This is the easiest to fix with education. It is not technically covered by court-appointed payments, so a lot of folks simply won't do it, ethical responsibilities be damned. I do it because it adds about 5 minutes of work to the process and makes a big difference to the client. But Anonymous 12:34 is right: it is not technically a criminal matter covered by the appointment and given the pittance paid by local courts (usually $175 for the totality of representation on a plea deal for a misdemeanor), I can undersatnd why it isn't a priority. Doesn't excuse the behavior at all, but does explain it.

3)DPS' handling of orders/waivers they have received. I had one Travis County judge inform me that despite her signed orders, DPS had kicked back 10-15 of these to her saying there wasn't adequate information in the order to sustain the waiver. Frankly, given aproperly worded and executed order, this sort of BS is outside the power of DPS to do. This pariticular judge was going above and beyond to contact the defendants and their attorneys to resubmit the waivers. I can't imagine many judges bothering to do this. (At least the lawyers have a duty to their clients; many judges could care less.)

A Texas PO said...

Paul, that's very interesting. I'm a bit astonished that DPS would be so strict about these guidelines when last year's amnesty went solely by the word of those calling in to apply. I get that there's a legal statute now, but it seems like they're being very picky.

Casey Chambless said...

Is this something you have to do through the court? I got a form off the website to send to the DPS. I have sent in 3 (paying for certified mail and notarizing) and all 3 have been rejected for technical errors in the form. The most recent claimed the notary didn't format the date correctly. Could there really be some kind of "deny all claims" policy or am I just stuck in bureaucratic hell? I am a college student and live on loans. I don't have a dwi, just too many tickets. I recently got pulled over and cited again for DWLS. $350 ticket and I just got a notice yesterday that my license is now suspended for a 2 year period. Does this make any sense to anyone?

Anonymous said...

I have seen DPS send back the Indigence Forms for not naming the offenders children and ages. One offender had the form sent back to her 3 times! How stupid! I am a CSO and after we look at the offender's finances I help them complete the indigence form and several had the surcharges reduced and the offender has to retake the written and driving part of the driver's license test. I have so many offenders who are 19 and hispanic and their parents never taught them driver's ed, so the offender never received a driver's license. They get stopped and get arrested for no DL and up starts the surcharges that they can't afford to pay.
How can an offender go to work without a vehicle or DL?? In rural areas we do not have public transportation, so they continue to drive.

I hope to find a Legislator that will give these people a break!

Anonymous said...

"General Overview -The Texas legislature authorized the Indigency program to provide drivers the ability to comply with surcharges owed under the Driver Responsibility program and maintain driving privileges. The surcharges are not waived under this program, but are reduced."*
is not in compliance with Transportation Code Chapter 708.158.**

"Sec. 708.158. INDIGENT STATUS AND REDUCTION OF SURCHARGES. (a) The department shall waive all surcharges assessed under this chapter for a person who is indigent."**

https://www.txsurchargeonline.com/Indigence.aspx says "reduced", and the State Code says "waived". Furthermore, the State Code Sec. 708.158** makes no structure to reduce or take any further action other than full waiver.

Chapter 708.158. Subsection (b) states: "A person must provide information to the court in which the person is convicted of the offense that is the basis for the surcharge to establish that the person is indigent" The Tx DPS has no authority to determine indigency eligibility, or decide to waive surcharges or not. That authority/responsibility has been granted to the courts alone, specifically.

Those are the only two sub-sections in 708.158.** There's no room to argue.

The current 'Texas DPS Driver Responsibility Indigency Program'* partially follows Sec. 708.157** and that practice, but it is not in compliance with Sec. 708.158.** Sec. 708.157** is a completely separate issue from Sec 708.158** anyway. Sec. 708.157** allowed the Tx DPS to create an amnesty program under their control. Sec. 708.158** gives them no such power.

All transactions/actions handled by the 'Texas DPS Driver Responsibility Indigency Program'* in its current form are illegal by law.


Hope this helps.