Drivers may soon seek indigency determination from courts for waiver of Driver Responsibility surcharges

In September, legislation approved back in 2009 will finally take effect allowing county and municipal courts and Justices of the Peace to declare drivers indigent for purposes of paying off the Driver Responsibility surcharge, and if they do, the Texas Department of Public Safety must waive all surcharges assessed," under a provision in HB 2730 (81st). This is a completely separate indigency program from the one recently installed in Department of Public Safety rules. To qualify with the courts for indigent status, drivers:

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 following documentation may be used as proof:
(1) a copy of the person ’s most recent federal income tax return that shows that the person ’s income or the person ’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines;
(2) a copy of the person ’s most recent statement of wages that shows that the person ’s income or the person ’s household income does not exceed 125 percent of the applicable income level established by the federal poverty guidelines; or
(3) documentation from a federal agency, state agency, or school district that indicates that the person or, if the person is a dependent as defined by Section 152, Internal Revenue Code of 1986, the taxpayer claiming the person as a dependent, receives assistance from:
          (A )the food stamp program or the financial assistance program established under Chapter 31, Human Resources Code;
          (B) the federal special supplemental nutrition program for women, infants, and children authorized by 42 U.S.C. Section 1786;
          (C) the medical assistance program under Chapter 32, Human Resources Code;
          (D) the child health plan program under Chapter 62, Health and Safety Code; or
          (E) the national free or reduced-price lunch program established under 42 U.S.C. Section 1751 et seq.

We'll see how courts handle this. I'm not a lawyer, but the statute language pretty clearly seems to allow petitioners to seek indigency determinations even in older cases, since drivers would petition "the court in which the person is convicted," and one wouldn't have been convicted yet on prospective cases. At the Texas District and County Attorneys Association legislative briefing, Shannon Edmonds criticized the Legislature on this language for providing little procedural guidance to judges, telling attendees of the Austin briefing merely, "Good luck."

Whatever procedure is used, clearly drivers may petition for an indigency determination in the court of conviction and judges must make a ruling. If a driver is determined indigent, all surcharges are waived. That's a big deal, even if it's perhaps a logistically clunky way to address the matter.

Will courts see a rush (or even a trickle) of drivers with old DRP surcharges seeking indigency determinations after September 1? And going forward, what methods will municipal courts, JPs, and county courts at law use to identify indigent defendants and notify DPS that their surcharges need to be waived? Will it be a different method from indigency determination for appointed counsel? And will DPS be prepared with sufficient bureaucratic infrastructure to process such cases, whether they come in at a trickle or a flood? All these factors remain unknown.

In any event, though the Texas Legislature has refused to abolish the Driver Responsibility surcharge outright, in the past couple of sessions they have provided significant additional relief. DPS created an amnesty program for drivers who defaulted prior to 2008. The Legislature also told DPS to create its own, separate indigency program, which only just rolled out a few months ago. (In that program, drivers must provide an affidavit or other evidence that their income is below 125% of poverty.) And an incentive program which will be implemented soon will allow drivers to pay half the full assessment up front and be done with the surcharge entirely.

After September 1, drivers who may or may not qualify for those other programs can also solicit a court to declare them indigent and have the surcharges waived entirely. It's a bit of a hodge podge, but little by little the Lege has created new ways for people to climb out of the surcharge-driven financial hole that's mercilessly bled millions of drivers since the program's creation in 2003.

See related Grits posts:

• Grits to DPS: Enact incentive rules for Driver Responsibility surcharge now
• Amendment tells DPS: Implement incentive rules for Driver Responsibility surcharge
• Hospitals: Driver Responsibility surcharge an unreliable funding source
• Bill to abolish Driver Responsibility surcharge gets hearing Tuesday
• What's the one thing John Whitmire and Leo Berman have in common?
• Declining DWI convictions and the unmitigated failure of the Driver Responsibility surcharge
• Federal suit filed to declare Driver Responsibility surcharge unconstitutional
• DPS Director: No public safety benefit from Driver Responsibility Surcharge
• Prosecutors altering charging decisions to avoid Driver Responsibility surcharge
• Driver surcharge boosting Texas joblessness
• Unexplored costs from DPS surcharge harm safety, the economy
• Driver Responsibility surcharge 'devastating' for court system
• Bill author says 'overly punitive' Driver Responsibility surcharge a 'mistake'