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.