Despite two years to plan, DPS won't yet process surcharge waivers for indigent defendants

Despite having two years to plan for the statutory September 1 implementation date, the Texas Department of Public Safety is not yet prepared to implement a mandated system for indigent defendants to have their Driver Responsibility Surcharges waived, I'm told by officials at DPS. Although the law took effect Sept. 1, 2011 (and was passed in 2009, giving them ample time to prepare), DPS is not able at this time to process  indigency waivers under Chapter 708.158 of the Transportation Code if a defendant today were to seek to have his or her surcharge waived, and they "do not have an estimated implementation date" as to when they'll be ready.

Notably, this is a different provision than the inidgency rules implemented by DPS earlier this year (see here), which reduced, but do not eliminate, surcharges for people who file an affidavit of indigency with the department. Instead, under this provision, drivers convicted of a traffic offense making them liable for the Driver Responsibility Surcharge after September 1, 2011 may seek to have their surcharge(s) waived outright by providing documentation of indigent status to the convicting court. Documentation to demonstrate indigence includes:

(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.

There is no requirement under the law for judges to hold a hearing, evaluate the evidence, or issue any formal declaration before a person’s surcharge(s) become eligible for waiver. Rather, “a person is considered to be indigent if the person provides the evidence described” in the statute, and DPS “shall waive all surcharges assessed under this chapter for a person who is indigent.” (Emphasis added.) In other words, simply providing said information to the court makes an indigent driver eligible for the waiver. No action by the court appears to be required other than receiving the documents, though in practice either the court clerk or the defendant would have to notify DPS. One would imagine if a defendant is eligible for appointed counsel they'd automatically be eligible to have their surcharges waived. But even those without appointed lawyers may be eligible if they fall into one or more of the categories listed above.

In what is perhaps a significant technical drafting oversight, the law does not require the court to notify the Department of Public Safety that such information has been provided.  However, once the information has been provided, the law requires DPS to waive the surcharge. The waivers only apply for convictions after Sept. 1, 2011. This will be perhaps most significant for DWI cases, where defendants are more likely to receive appointed counsel and where surcharges run $1,000 per year for three years on the first offense. But it also applies to surcharges for driving without insurance, driving without a license, and surcharges based on "points."

A few weeks ago I asked DPS about the implementation of this law, and yesterday finally go back this response:

For the reporting of the indigent status by the court, we are planning to incorporate a field in the current conviction reporting process for indigent status.  Section 15.07, Article 15, HB2730 provided that the indigency program applies only to surcharges assessed on or after the effective date of the law.  As you are aware, indigency can be a fluid status.  Because of this fluidity, the Department should only consider the court indigency on a per conviction basis.  The inclusion of the additional field will allow the court to easily report the indigent status for each conviction.
 
This programming has been included in our legislative projects, but I do not have an estimated implementation date at this time.

A followup email after I asked for clarification declared that:

The Driver License Division is still working to implement all legislative changes that impact our processes, and the electronic reporting capability has not been established at this time.  Unfortunately, I do not have an estimated date for implementation as all legislative changes are being evaluated for programming efforts, rule and procedural changes.

This is bizarre to me: The "implementation date" is in the statute and already has passed us by. What they're really saying is that, even though the agency had more than two years to prepare, DPS won't yet waive surcharges under this provision of the statute because they don't yet have their act together. State agencies don't get to ignore the law, or shouldn't, just because for two years they failed to sufficiently plan for its impact. They had plenty of time and I know for a fact the relevant DPS staff knew about the new law; they just did nothing before now to implement it.

What's needed at this point is a test case - someone who was convicted of DWI or another surcharge-generating offense after September 1 who qualifies for indigent status under the provisions above - to file the relevant documents with the court and seek a waiver from DPS, forcing them to expedite creating a process instead of taking their own sweet time. The law doesn't require electronic reporting by the court, so a defendant eligible for the waiver could provide documentation to the court then notify DPS by mail, fax, etc., and by law the surcharge must be waived.

If any attorney reading this who was appointed to represent an indigent client in a DWI case which pled out after September 1 were to seek such a waiver for their client, it'd be a great mitzvah to do so and force DPS to expedite creating a process. (Be sure to let Grits know if you do.) Indeed, to my mind attorneys appointed to represent indigent defendants for any surcharge-generating offense now pretty much have an affirmative duty to help their convicted clients get surcharges waived if they're eligible or risk future allegations of "ineffective assistance of counsel."

There's no excuse for DPS pretending they can forestall the implementation date beyond the timing dictated in the statute, but they clearly don't yet have their act together, even with more than two years to plan. Very frustrating. The defense bar needs to step up and force their hand.