I have learned this week (but have not actually read the new law)that every parent in a CPS case is going to be entitled to a lawyer, regardless of whether the objective of CPS is to terminate their rights.

I can see the advantage of having these folks represented from the beginning of the case, but I know that the commissioners court is going to blow a gasket whent they find out that their indigent defense budget is going to probably at least double.

Does anyone have any thoughts about how to "sell" this to the court at budget hearings? Other than the fact that the lege has spoken?

I don't think you'll be able to "sell" it, beyond joining in the woeful chorus about yet another unfunded mandate. On camera, they will undoubtedly recognize the need to protect our children, but it's difficult to imagine a persuasive argument against the concurrent budget complaints. The commissioners' likely argument is simple, but powerful: is it much more attractive from a public opinion perpsective to pour tax dollars into protecting the rights of alleged child abusers than other alleged criminals? Perhaps the biggest challenge we may face, however, is confronting the pressure (subtle or otherwise, and most assuredly involving allusion to budget) from the commissioners court to be more, shall we say, selective in choosing the CPS cases on which we go forward. Coordination with local caseworkers and supervisors to reach consensus on the types of cases that must proceed, versus those that might be nice but are too expensive from a demonstrable cost-benefit perspective, will be key. I can't say that I'm optimistic about the process being smooth.

You might try appointing the same attorney in nearly all cases as the attorney for the mother, and a second attorney for nearly all the fathers. There is still going to be substantial expense, BUT it might be minimized to some extent by having only the two attorneys sitting through docket calls, meeting with Permanancy Planning Teams, etc. You might try seeing if there is a semi-retired attorney interested in doing this kind of work. Just some ideas - I think our county is also looking at a significant increase in appointed attorney costs.

Enrolled version - Bill text - online (90 pages total)

here is link:

http://www.capitol.state.tx.us/cgi-bin/tlo/textframe.cmd?LEG=79&SESS=R&CHAMBER=S&BILLTYPE=B&BILLSUFFIX=00006&VERSION=5&TYPE=B

Section 107.013 will add subsection (c) that says "In a suit filed by a governmental entity requesting temporary managing conservatorship of a child, the court shall appoint an attorney ad litem to represent the interests of an indigent parent of the child who responds in opposition to the suit."

No suggestions on what to say to the county, doesn't look like they have a choice but to pay.

The bigger question to me is if they appear at the 14 day hearing and say "I oppose, and I can't afford an attorney" - can you have the hearing or have to continue to do indigency hearing??

Better yet - look at the change to the section on requesting an extension of the original dismissal date. "The Court may not retain the suit on the court's docket . . . unless the court finds that extraordinary circumstances necessitate . . .."

Have found some good -at least one new def. under neglect and at least one new agg. circumstances ground.

[This message was edited by raythomas on 07-14-05 at .]

[This message was edited by raythomas on 07-14-05 at .]

ways to minimize unnecessary appointments:

If parents are in agreement with CPS being TMC - get agreed orders signed before going into 14-day hearing. Especially in case of RAPR's where you already know that is what they want. Will have to rely on investigative CPS worker to ask the parents and arrange to get them in to sign.

I think an alleged father by def. is not a parent and therefore, although entitled to attorney for termination, is not for TMC purposes until he is established as legal father and then opposes the TMC.

Parents who oppose and are not at odds can have the same attorney (one appointment fee instead of two).

Bone up on fighting indigency claims of a parent you know is not indigent.

Why is everyone assuming the county must pay for the court appointment? By what legal theory is the State not responsible? The counties successfully sued the State when the State failed to take inmates from county jails.

I'm all for suing the State to recover these costs, but my question is, why would the State not be liable for the cost of all indigent representation? The State is the party imposing all of these costs.

Maybe we need to get something going. I was reading the CPS "reform" bill yesterday and notice that a lot of the law is "subject to appropriation." What a way to run government!

as it already said for termination cases, now amended to include these appointments: "shall be paid from the general funds of the county . . ." (107.015(c)).

Also note that S.B. 6, in section 1.07 of the bill, amends section 107.015(c) to delete the previous limitiation on county liability to termination cases. Thus, if CPS files suit and seeks conservatorship, the parents get a lawyer. If they prove indigency, the county pays for the lawyer. As Ray adeptly suggested, we probably need to work on disproving indigency as part of our CPS representation strategy.

I know the statute says the county has to pay, but that doesn't make it necessarily legal, does it? In a constitutional government, there are certain services that are the responsibility of the State, regardless whether they try to pawn them off on a local entity.

The courts, for example, recognize that a defendant who is sentenced to a state prison is the financial and social responsibility of the State. When the State shirked that duty, the counties sued and recovered the money they had to expend on the State's unfulfilled responsibility.

Are there any similar theories that could be applies to the State, out of the blue, expanding a county's financial responsibilities?

The ultimate problem (and the reason that a constitutional amendment would be required to curb unfunded mandates) is that a county is not viewed under Texas constitutional law as an independent governmental entity, but rather a dependent political subdivision of the state that exists ultimately to implement state policy. Counties have only the powers and duties given to them by the state through the constitution and statutes. The successful theory behind the state prison cases was that the state was violating its own, self-imposed legal obligations (not that the state owed counties any particularized obligation). That the counties were bearing the financial brunt gave them standing, but it didn't create a broader class of protection from unfunded mandates.

Aside from challenging indigency on a case-by-case basis, an issue in this regard that might be considered is the public value of county money going to finance individual representation in a non-termination case (where there is not same degree of clearly-identified substantial constitutional right to the parent-child relationship). Absent some public value, payment for representation of a parent's private interest could be argued to be a gift of county money in violation of art. 3, section 52(a). With that said (and having done no research), I'm sure I just opened the door to be swiftly and curtly corrected by one of my scholarly colleagues with some case or AG opinion clearly stating that protection of parental rights implicates plainly public interests. On some days I should be restricted as to my ability to post.

Good background stuff, Scott. Not being an elected official that deals with civil stuff, I can pretty much free to talk off the top of my head. It's very freeing.

Anyone else have any theories.

INDIGENT DEFENSE RULING UPHELD
The Mississippi Supreme Court ruled Thursday the state isn't obligated to help counties pay the legal tabs of the poor charged with crimes.

In a 6-2 decision, the high court sided with Circuit Judge Ann Lamar, who said she would not declare unconstitutional a state law requiring local governments to pay for indigent defense.

In 1999, Quitman County sued the state after being forced to borrow hundreds of thousands of dollars to pay legal expenses for Robert Simon and Anthony Carr, sentenced to death row for the Feb. 12, 1990, torture and burning deaths of four members of a family from Lambert. To pay for the trial and appeal, the county had to take out a $150,000 loan and raise taxes for three years.
http://www.clarionledger.com/apps/pbcs.dll/article?AID=/20050722/NEWS01/50722004/1002