H. B. 4684

(By Delegates Staton, Amores, Rowe, Smirl and Thomas)


(Originating in the Committee on the Judiciary)


[February 27, 1998]




A BILL to amend and reenact sections three, six, eight, nine, ten, eleven, thirteen, thirteen-a, fifteen, sixteen, seventeen and nineteen, article twenty-one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the public defender services; continuing public defender services; describing duties, powers and limitations of the executive director and of public defender services; describing public defender corporations, the activation of public defender corporations and the creation of second offices within public defender corporations; describing the appointment of panel attorneys and the order of appointment of panel attorneys and public defender corporations; describing the process by which public defender corporations may apply for funding; describing public defender corporation funding applications, legal representation plans and review; describing public defender corporation funding, record keeping, submission of proposals to the executive director; providing for review of operating plans and budgets of public defender corporations; requiring the preparation of an operating plan; establishing compensation and expenses for panel attorneys; requiring certification of the date of submission of claims; requiring that claims be submitted within one hundred and eighty days of last date of service; requiring the development and distribution of an electronic voucher system; requiring the development and distribution of an abbreviated voucher form; establishing the submission of abbreviated voucher forms directly to the executive director; establishing that time spent awaiting hearing or trial shall be compensated at the rate of forty-five dollars per hour; eliminating double billing while awaiting trial or hearing; restricting compensation for time spent by panel attorneys traveling outside the circuit of appointment; limiting each panel attorney to seven hundred billable hours per calender year except when the appointing judge approves a greater number of hours; limiting the total cost of investigative, expert or other services that may be obtained without prior approval to three hundred dollars; describing the board of directors; authorizing the executive director to fill a temporarily vacant board position; establishing that the board of directors is subject to the open meetings laws; establishing that a public defender's budget is subject to approval of the executive director and legislative appropriation; requiring the executive director to establish and annually update and review of financial guidelines for determining client eligibility; establishing the circumstances and manner according to which magistrates and circuit judges shall order repayment costs of representation; requiring the magistrate or circuit judge to order payment forthwith or within a specified time when a person is required to repay costs; authorizing a person who has been assessed costs to petition the circuit court for a modification of the order and giving the circuit court power to modify the method or amount of payment; authorizing the magistrate or circuit court to make repayment of costs a condition of probation or suspended sentence; requiring the clerk of the magistrate or circuit clerk to notify the executive director that payment of costs was ordered; requiring the executive director to ascertain the costs of providing representation and to certify that amount; establishing that when a person is ordered to pay costs, those costs constitute a lien against all property of the person ordered to pay the costs; establishing procedure for enforcement of the lien; requiring circuit clerks to keep itemized records of counsel fees and expenses and to provide reports of payment to the executive director; deleting language limiting penalties against affiants pursuant to this article; requiring the report of the annual audit to be submitted to the joint committee on government and finance as well filed with the public defender service.

Be it enacted by the Legislature of West Virginia:
That sections three, six, eight, nine, ten, eleven, thirteen, thirteen-a, fifteen, sixteen, seventeen and nineteen, article twenty-one, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3. Establishment of public defender services, termination date.

There is hereby created an executive agency known as public defender services. The agency shall administer, coordinate and evaluate programs by which the state provides legal representation to indigent persons, monitor the progress of various delivery systems, and recommend improvements. The agency shall maintain its office at the state capitol.
Pursuant to the provisions of article ten, chapter four of this code, public defender services shall continue to exist until the first day of July, one thousand nine hundred ninety-eight ninety-nine.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency executive director is authorized to make grants to and contracts with public defender corporations and with individuals, partnerships, firms, corporations and nonprofit organizations, for the purpose of providing legal representation under this article, and may make such other grants and contracts as are necessary to carry out the purposes and provisions of this article: Provided, That any contract entered into between the executive director and any public defender corporation shall contain a detailed description of each position, salary and associated employee benefits, equipment, rent, current expenses and other such information prescribed by the executive director.
(b) The agency executive director is authorized to accept, and employ or dispose of in furtherance of the purposes of this article, any money or property, real, personal or mixed, tangible or intangible, received by gift, devise, bequest or otherwise.
(c) The agency executive director shall establish and the executive director or his designate shall operate a criminal law research center as provided for in section seven of this article. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical assistance relating to the delivery of legal representation; and to engage in research, except that broad general legal or policy research unrelated to direct representation of eligible clients may not be undertaken.
(d) The agency shall establish and the executive director or his designate shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. The executive director shall have the authority to reduce or reject vouchers or requests for payment submitted by panel attorneys. This The accounting and auditing division shall review all plans and proposals for grants and contracts, and shall make a recommendation of approval or disapproval to the executive director. The division shall prepare, or cause to be prepared, reports concerning the evaluation, inspection or monitoring of public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this article, and shall further carry out the agency's responsibilities for records and reports as set forth in section eighteen of this article.
The accounting and auditing division shall require each public defender corporation to submit financial statements monthly and to periodically report monthly on the billable and nonbillable time of its professional employees and such other information as the executive director may deem necessary to carry out the purposes of this article or any duty required of the executive director or the agency, including, but not limited to, time utilized in administration of the respective offices, so as to compare such time to similar time expended in nonpublic law offices for like activities.
The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. Such assistance shall include, but not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or a person designated by the executive director shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the supreme court of appeals. The executive director or a person designated by the executive director shall be the director of the appellate advocacy division. The appellate advocacy division shall represent eligible clients upon appointment by the circuit courts, or by the supreme court of appeals. The division may, however, refuse such appointments due to a conflict of interest or if the executive director has determined the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide effective representation. In order to effectively and efficiently utilize the resources of the appellate division the executive director may restrict the provision of appellate representation to certain types of cases.
The executive director is empowered to select and employ staff attorneys to perform the duties prescribed by this subsection. The division shall maintain vouchers and records for representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations.
(a) In each judicial circuit of the state, there is hereby created a "public defender corporation" of the circuit. The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article.
(b) If the judge of a single-judge circuit, the chief judge of a multi-judge circuit or a majority of the active members of the bar in the circuit determine there is a need to activate the corporation, they shall certify that fact in writing to the executive director. The executive director shall allocate funds to those corporations that have been activated so certifying in the order in which he or she deems most efficient and cost effective.
(c) The executive director shall, by January 1, 1999, establish a second public defender office in all single-county circuits which have four or more circuit judges and an activated public defender corporation. The executive director shall establish two public defender offices in all circuits with two or more circuit judges in which a public defender corporation is hereafter activated. The executive director may establish second offices in all circuits in which there is an activated public defender corporation. In circuits with two public defender offices, the executive director shall determine how the caseload shall be divided. In circuits with two public defender offices, the offices shall be separately administered and operated and may not be in the same location. In circuits with two offices, the offices may be governed by the same public defender corporation, but public defender corporations may not interfere with either offices professional responsibilities to clients.
(c)(d) Public defender corporations may apply in writing to the executive director for permission to merge to form multi- circuit or regional public defender corporations. Applications for mergers shall be subject to the review procedures set forth in section eleven of this article.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall establish and maintain regional and local panels of private attorneys-at-law who shall be available to serve as counsel for eligible clients.
An attorney-at-law may become a panel attorney and be enrolled on the regional or local panel, or both, to serve as counsel for eligible clients, by informing the court. An agreement to accept cases generally or certain types of cases particularly shall not prevent a panel attorney from declining an appointment in a specific case.
(b) In all cases where an attorney-at-law is required to be appointed for an eligible client, the appointment shall be made by the circuit judge. In circuits where a public defender office is in operation, the judge shall appoint the public defender office unless such appointment is not appropriate due to a conflict of interest or unless the public defender corporation board of directors or the public defender, with the approval of the board, has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide effective representation.
If the public defender office is not available for appointment, the court shall appoint one or more panel attorneys from the local panel. If no local panel attorneys are available, the court shall appoint a public defender office in operation in an adjoining circuit. If a public defender office in an adjoining circuit is not available for appointment, the court shall appoint one or more panel attorneys from an adjoining circuit. If there is no local panel attorney available, the judge shall appoint one or more panel attorneys from the regional panel . If there is no regional panel attorney available, the judge may appoint a public defender office from an adjoining circuit if such public defender office agrees to the appointment.
In circuits where no public defender office is in operation, the judge shall first refer to the local panel and then to the regional panel in making appointments, and if an appointment cannot be made from the panel attorneys, the judge may appoint the public defender office of an adjoining circuit if the office agrees to the appointment. If no adjoining public defender is available, the judge shall appoint a panel attorney from an adjoining circuit. In any circuit, when there is no public defender, or assistant public defender, local panel attorney or regional panel attorney from an adjoining circuit available, the judge may appoint one or more qualified private attorneys to provide representation, and such private attorney or attorneys shall be treated as panel attorneys for that specific case. In any given case, the appointing judge may alter the order in which attorneys are appointed if the case requires particular knowledge or experience on the part of the attorney to be appointed.
§29-21-10. Public defender corporation -- Intent to apply for funding.

(a) Any public defender corporation applying to public defender services for financial assistance to establish a program to provide legal representation or proposing a major substantive modification to an existing program shall notify the executive director, the joint committee on government and finance and the circuit judges in the area in which the program will deliver legal representation of the intent to apply for such assistance or modification. Such notice shall be given at least thirty days prior to the filing of an application or a proposal for modification.
(b) Notifications shall include a summary description of the proposed program. The summary description shall contain the following information:
(1) The identity of the applicant;
(2) The geographical area to be served by the proposed program;
(3) A brief description of the proposed program, general size or scale, estimated cost, or other characteristics which will enable the circuit court to determine how the system for representation of indigents within the circuit may be affected by the proposed program; and
(4) The estimated date the public defender corporation expects to formally file an application or modification proposal.
§29-21-11. Public defender corporations -- Funding applications; legal representation plans; review.

(a) Any public defender corporation or any other entity wishing to secure state financial assistance through the agency shall submit a funding application to the executive director. The executive director shall submit a copy of the funding application to the joint committee on government and finance within thirty days of receiving it.
(b) The funding application, which is to be submitted in a form prescribed by the executive director, shall contain a general description of the plans and policies the applicant intends to utilize in providing legal representation, proposals for staffing, salary and employee benefits, equipment, rent, current expenses and such other information prescribed by the executive director.
(c) All applications for financial assistance from public defender services under the provisions of this article must be submitted to the circuit judges of the circuit for review prior to their submission to public defender services.
Reviews shall be completed by circuit judges within fifteen thirty days after receipt. If the public defender corporation or other applicant has not received a response within the fifteen-day period, the public defender corporation may consider the judge to have waived his or her opportunity to review and comment on the proposed program or program modification and may submit the application to public defender services.
(d) Completed applications shall include:
(1) All comments and recommendations made by the circuit judges, along with a statement that such comments have been considered prior to submission of the application; or
(2) If no comments have been received from circuit judges, a statement that the procedures outlined in this section have been followed and that no comments or recommendations have been received.
§29-21-13. Public defender corporation funding; record keeping by public defender corporations.

(a) On or before the first day of May of each year, every public defender corporation shall submit to the executive director a proposed budget for the next fiscal year. The accounting and auditing division shall review all funding applications and prepare recommendations for an operating plan and budget for each public defender corporation. The executive director shall review the funding applications and the accounting and auditing recommendations and shall, in consultation with the applicants, prepare a plan an operating plan for each public defender corporation for providing legal services.
(b) Upon final approval of a funding application by the executive director, the approved budget shall be set forth in an approval notice. The total cost to the agency shall not exceed the amount set forth in the approval notice and the agency shall not be obligated to reimburse the recipient for costs incurred in excess of the amount unless and until a program modification has been approved in accordance with the provisions of this article.
(c) Funding of public defender corporations or other programs or entities providing legal representation under the provisions of this article shall be by annual grants disbursed in such periodic allotments as the executive director shall deem appropriate.
(d) All recipients of funding under this article shall maintain such records as required by the executive director.
 §29-21-13a. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients, and upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for services. Claims for fees and expense reimbursements shall be submitted to the appointing court on forms approved by the executive director. Claims shall contain a certification from the panel attorney of the date the claim is submitted to the appointing court or to the executive director. Claims submitted to the appointing judge or executive director more than four years one hundred and eighty days after the last date of service shall be rejected.
The appointing court shall review the voucher to determine if the time and expense claims are reasonable, necessary and valid and shall forward the voucher to the agency with an order approving payment of the claimed amount or of a lesser sum the court considers appropriate.
(b) Notwithstanding any other provision of this section to the contrary, public defender services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.
(c) Notwithstanding any other provision of this section to the contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the case where: (1) More than six months have expired since the commencement of the panel attorney's representation in the case; and (2) no prior payment of attorney fees has been made to the panel attorney by public defender services during the case. The amounts of any fees or expenses paid to the panel attorney on an interim basis, when combined with any amounts paid to the panel attorney at the conclusion of the case, shall not exceed the limitations on fees and expenses imposed by this section.
(d) The auditor, treasurer, administrative director of the courts and executive director shall develop a system for electronic submission and payment of vouchers, by the thirty-first day of December, nineteen hundred and ninety-eight, including the abbreviated voucher form described in subsection (e) of this section, and shall develop computer software for panel attorneys to use in the preparation and submission of vouchers. The executive director may charge a reasonable fee for providing copies of the software.
(e) The executive director shall develop and distribute to panel attorneys an abbreviated voucher form for claims of two hundred and fifty dollars or less by the first day of July, nineteen hundred and ninety-eight. Notwithstanding any provisions of this article to the contrary, panel attorneys shall submit completed abbreviated voucher forms directly to the executive director. Expedited payment shall be made to panel attorneys at the conclusion of a case if the total claim for the case, including expenses, is two hundred and fifty dollars or less and if the claim is submitted on the abbreviated form. Claims of two hundred and fifty dollars or less submitted on the abbreviated voucher form are not claims required by law to be allowed by any court as described in section one, article three, chapter twelve of this code.
(d) (f) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:
(1) For attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour. For paralegal's work performed out of court for the attorney, compensation shall be at the rate of the paralegal's regular compensation on an hourly basis or, if salaried, at the hourly rate of compensation which would produce the paralegal's current salary, but in no event shall the compensation exceed twenty dollars per hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and prehearing or pretrial research, and all time spent awaiting hearing or trial if the presence of the attorney is required. Time spent waiting for hearing or trial may not be billed if the attorney is performing work for another client during that period. Time spent traveling to the circuit in which the appointment is made from outside the circuit may not be billed without prior approval from the appointing judge.
(2) For attorney's work performed in court, compensation shall be at the rate of sixty-five dollars per hour. No compensation for paralegal's work performed in court shall be allowed. In-court work includes, but is not limited to, all actual time spent awaiting in hearing or trial before a judge, magistrate, special master or other judicial officer. if the presence of the attorney is required.
(3) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the court may approve; for all other eligible proceedings, three thousand dollars unless the court, for good cause shown, approves payment of a larger sum.
(4) Each individual panel attorney shall be limited to a maximum of seven hundred billable hours per calendar year for all representation in all matters to which he or she is appointed unless the appointing judge for good cause shown supported by findings of fact approves, by separate order, a greater number of billable hours.
(e) (g) Actual and necessary expenses incurred in providing legal representation for proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed in an amount as the court may approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed to a maximum of fifteen hundred dollars unless the court, for good cause shown, approves reimbursement of a larger sum: Provided, That the total cost of investigative, expert, or other services that may be obtained without prior authorization of the appointing court may not exceed $300.00, exclusive of expenses reasonably incurred.
Expense vouchers shall specifically set forth the nature, amount and purpose of expenses incurred and shall provide receipts, invoices or other documentation required by the executive director and the state auditor:
(1)(A) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page set forth in section four, article seven, chapter fifty-one of this code. Reimbursement of the cost of copies of such transcripts is limited to the cost per copy page as provided for under said section. It is the duty of the executive director of public defender services to maintain computer records of all transcripts, including originals and copies, for which payment has been made.
(B)(i) There shall be no reimbursement of expenses for or production of a transcript of a preliminary hearing before a magistrate or juvenile referee, or of a magistrate court jury trial, which has been reported by a court reporter at the request of the attorney, where the preliminary hearing or jury trial has also been recorded electronically in accordance with the provisions of section eight, article five, chapter fifty of this code or court rule.
(ii) Reimbursement of the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (i), paragraph (B), subdivision (1) of this subsection, or who reports a proceeding which is not reported by an official court reporter acting in his or her official capacity for the court, is limited to twenty-five dollars. Where a transcript of a proceeding is produced, there shall be no reimbursement for the expense of any appearance fee. Where a transcript is requested by the attorney after an appearance fee has been paid, reimbursement of the expense incurred to obtain the transcript is limited to the cost of producing the transcript, within the prescribed limitations of paragraph (A) of this subdivision, less the amount of the paid appearance fee.
(iii) Reimbursement of travel expenses incurred for travel by a court reporter is subject to the limitations provided by subdivision (2) of this subsection.
(iv) Except for the appearance fees provided in this paragraph, there shall be no reimbursement for hourly court reporters' fees or fees for other time expended by the court reporter, either at the proceeding or traveling to or from the proceeding.
(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court jury trials is limited to the rates established by the supreme court of appeals for the reimbursement of transcriptions of electronically recorded hearings and trial.
(2) Reimbursement for any travel expense incurred in an eligible proceeding is limited to the rates for the reimbursement of travel expenses established by rules promulgated by the governor pursuant to the provisions of section eleven, article eight, chapter twelve of this code and administered by the secretary of the department of administration pursuant to the provisions of section forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a rate of thirty dollars per hour for work performed by an investigator.
(f) (h) For purposes of compensation under this section, an appeal from a final order of the circuit court, or proceeding seeking an extraordinary remedy, made to the supreme court of appeals, shall be considered a separate case.
(g) (i) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered and the amount of time expended in each instance. All time claimed on the vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to enable the court to avoid a duplication of compensation for services rendered. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation or other provisions of this article and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.
§29-21-15. Public defender corporations -- Board of directors.

(a) The governing body of each public defender corporation shall be a board of directors consisting of persons who are residents of the area to be served by the public defender corporation.
(1) In multi-county circuits, and in the case of multi- circuit or regional corporations, the county commission of each county within the area served shall appoint a director, who shall not be an attorney-at-law. The president of each county bar association within the area served shall appoint a director, who shall be an attorney-at-law: Provided, That in a county where there is not an organized and active bar association, the circuit court shall convene a meeting of the members of the bar of the court resident within the county and such members of the bar shall elect one of their number as a director. The governor shall appoint one director, who shall serve as chairman, who may be an attorney-at-law, unless such appointment would result in there being an even number of directors, in which event the governor shall appoint two directors, one of whom may be an attorney-at-law. The governor's appointees shall serve four-year terms which terms shall coincide with the term of the governor. Appointments may be made for unexpired terms as may be necessary. Other board members' terms shall be as determined by the board.
(2) In single-county circuits, the manner of selecting directors shall be the same as that described in subdivision (1) of this subsection, except that the county commission shall appoint two directors rather than one, and the bar shall appoint two directors rather than one.
(3) In the event the person or entity required to fill a position described in this subsection fails to do so, the executive director may fill the position until such time as the position is filled in accordance with the provisions of this subsection.
(b) The board of directors shall have at least four meetings a year. Timely and effective prior public notice of all meetings shall be given pursuant to rules promulgated in accordance with the provisions of section three, article nine-a, chapter six of this code, and all meetings shall be public except for those concerned with matters properly discussed in executive session. The board of directors shall be a public body subject to the provisions of article nine-a, chapter six of this code.
(c) The board of directors shall establish and enforce broad policies governing the operation of the public defender corporation but shall not interfere with any attorney's professional responsibilities to clients. The duties of the board of directors shall include, but not be limited to, the following:
(1) Appointment of the public defender and any assistant public defenders as may be necessary to enable the public defender corporation to provide legal representation to eligible clients; and
(2) Approval of the public defender corporation's budget and the fixing of professional and clerical salaries, subject to the approval of the executive director and legislative appropriation: Provided, That the compensation paid to any part-time public defender, part-time assistant public defender or other part-time employee shall not include benefits such as retirement, health insurance or paid leave time for illness or vacation unless public defender services has certified in writing to the board of directors that there exists sufficient funding to provide such benefits and the board of directors authorizes such benefits to be included in the compensation; and
(3) Removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance or nonfeasance.
(d) To the extent that the provisions of chapter thirty-one of this code regarding nonprofit corporations are not inconsistent with this article, the provisions of said chapter shall be applicable to the board of directors of the public defender corporation.
(e) While serving on the board of directors, no member may receive compensation from the public defender corporation, but a member may receive payment for normal travel and other out-of-pocket expenses required for fulfillment of the obligations of membership and may accept appointments to represent eligible clients so long as he or she does not discuss a particular case with any public defender, assistant public defender or other employee of the office governed by the board. Directors may not serve as cocounsel with the public defender or assistant public defender in any matter.
§29-21-16. Determination of maximum income levels; eligibility guidelines; use of form affidavit; inquiry by court; denial of services; repayment; liens; limitation on remedies against affiant.

(a) The executive director agency shall establish, and periodically annually review and update financial guidelines for determining eligibility for legal representation made available under the provisions of this article. The agency shall adopt a financial affidavit form for use by persons seeking legal representation made available under the provisions of this article. The agency shall promulgate rules requiring the applicant to document his or her financial need for publicly funded legal representation.
(b) All persons seeking legal representation made available under the provisions of this article shall complete the agency's financial affidavit form, which shall be considered as an application for the provision of publicly funded legal representation.
(c) Any juvenile shall have the right to be effectively represented by counsel at all stages of proceedings brought under the provisions of article five, chapter forty-nine of this code. If the child advises the court of his or her inability to pay for counsel, the court shall require the child's parent or custodian to execute a financial affidavit. If the financial affidavit demonstrates that neither of the child's parents, or, if applicable, the child's custodian, has sufficient assets to pay for counsel, the court shall appoint counsel for the child. If the financial affidavit demonstrates that either of the child's parents, or, if applicable, the child's custodian, does have sufficient assets to pay for counsel, the court shall order the parent, or, if applicable, the custodian, to provide, by paying for, legal representation for the child in the proceedings.
The court may disregard the assets of the child's parents or custodian and appoint counsel for the child, as provided above, if the court concludes, as a matter of law, that the child and the parent or custodian have a conflict of interest that would adversely affect the child's right to effective representation of counsel, or concludes, as a matter of law, that requiring the child's parent or custodian to provide legal representation for the child would otherwise jeopardize the best interests of the child.
(d) In circuits in which no public defender office is in operation, circuit judges shall make all determinations of eligibility. In circuits in which a public defender office is in operation, all determinations of indigence shall be made by a public defender office employee designated by the executive director. Such determinations shall be made after a careful review of the financial affidavit submitted by the person seeking representation. The review of the affidavit shall be conducted in accord with the financial eligibility guidelines established by the agency pursuant to subsection (a) of this section. In addition to the financial eligibility guidelines, the person determining eligibility shall consider other relevant factors, including, but not limited to, those set forth in subdivisions (1) through (9) of subsection (e) of this section. If there is substantial reason to doubt the accuracy of information in the financial affidavit, the person determining eligibility may make such inquiries as are necessary to determine whether the affiant has truthfully and completely disclosed the required financial information.
After reviewing all pertinent matters the person determining eligibility may find the affiant to be eligible to have the total cost of legal representation provided by the state, or may find that the total cost of providing representation shall be apportioned between the state and the eligible person. A person whose annual income exceeds the maximum annual income level allowed for eligibility may receive all or part of the necessary legal representation, or a person whose income falls below the maximum annual income level for eligibility may be denied all or part of the necessary legal representation if the person determining eligibility finds the person's particular circumstances require that eligibility be allowed or disallowed, as the case may be, on the basis of one or more of the nine factors set forth in subsection (e) of this section. If legal representation is made available to a person whose income exceeds the maximum annual income level for eligibility, or if legal representation is denied to a person whose income falls below the maximum annual income level for eligibility, the person determining eligibility shall make a written statement of the reasons for the action and shall specifically relate those reasons to one or more of the factors set forth in subsection (e) of this section.
(e) The following factors shall be considered in determining eligibility for legal representation made available under the provisions of this article:
(1) Current income prospects, taking into account seasonal variations in income;
(2) Liquid assets, assets which may provide collateral to obtain funds to employ private counsel and other assets which may be liquidated to provide funds to employ private counsel;
(3) Fixed debts and obligations, including federal, state and local taxes and medical expenses;
(4) Child care, transportation and other expenses necessary for employment;
(5) Age or physical infirmity of resident family members;
(6) Whether the person seeking publicly funded legal representation has made reasonable and diligent efforts to obtain private legal representation, and the results of those efforts;
(7) The cost of obtaining private legal representation with respect to the particular matter in which assistance is sought;
(8) Whether the person seeking publicly funded legal representation has posted a cash bond for bail or has obtained release on bond for bail through the services of a professional bondsman for compensation and the amount and source of the money provided for such bond;
(9) The consequences for the individual if legal assistance is denied.
(f) Legal representation requested by the affiant may not be denied in whole or part unless the affiant can obtain legal representation without undue financial hardship. Persons determined to be ineligible by public defender personnel may have the initial determination reviewed by a local circuit judge who may amend, modify or rewrite the initial determination. At any stage of the proceedings a circuit court may determine a prior finding of eligibility was incorrect or has become incorrect as the result of the affiant's changed financial circumstances, and may revoke any prior order providing legal representation. In such event any attorney previously appointed shall be entitled to compensation under the provisions of law applicable to such appointment for services already rendered.
(g) In the circumstances and manner set forth below, magistrates and circuit judges may shall order repayment to the state, through the office of the clerk of the circuit court having jurisdiction over the proceedings, of the costs of representation provided under this article:
(1) In every case in which services are provided to an indigent person and an adverse judgment has been rendered against such person, the magistrate or circuit court may shall require that person, and in juvenile cases, require the juvenile's parents or custodian, to pay as costs the compensation of appointed counsel, the expenses of the defense and such other fees and costs as authorized by statute.
(2) The magistrate or circuit court shall not order set payment schedules for a person to pay costs unless the person is able to pay without in a manner which will cause undue hardship. In determining the amount and method of repayment of costs, the magistrate or circuit court shall take account of the financial resources of the person, the person's ability to pay and the nature of the burden that payment of costs will impose. The fact that the magistrate or circuit court initially determines, at the time of a case's conclusion, that it is not proper to order the repayment of costs does not preclude the court from subsequently ordering repayment should the person's financial circumstances change immediate repayment of costs does not preclude the court from setting a payment schedule to allow later payment or payments in amounts and at such times as will not likely cause undue hardship.
(3) When a person is ordered able to repay costs, the magistrate or circuit court may shall order payment to be made forthwith or within a specified period of time or in specified installments. If a person is sentenced to a term of imprisonment, an order for repayment of costs is not enforceable during the period of imprisonment unless the court expressly finds, at the time of sentencing, that the person has sufficient assets to pay the amounts ordered to be paid or finds there is a reasonable likelihood the person will acquire the necessary assets in the foreseeable future.
(4) A person who has been ordered to repay costs, and who is not in contumacious default in the payment thereof, may at any time petition the sentencing circuit court of the circuit in which payment was ordered for modification of the repayment order or schedule of payments. If it appears to the satisfaction of the circuit court that continued payment of the amount ordered will impose undue hardship on the person or the person's dependents, the circuit court may modify the method or amount of payment.
(5) When a person ordered to pay costs is also placed on probation or imposition or execution of sentence is suspended, the magistrate or circuit court may make the repayment of costs a condition of probation or suspension of sentence.
 (6) Where the person ordered to pay costs was represented in the case by a public defender, the clerk of the magistrate court or the clerk of the circuit court in which payment was ordered shall notify the executive director of the order. Upon receipt of the notice, the executive director shall ascertain the cost to the public defender office of providing such representation and certify the amount ascertained to the magistrate clerk or the circuit clerk.
(7) Where a person has been ordered to pay costs pursuant to this subsection, the amount paid by the executive director for counsel fees and defense expenses in a claim or claims in a case, or the amount certified pursuant to subdivision (6) of this subsection, or any lesser amount that may be ordered by a magistrate or circuit court under the provisions of this subsection, shall constitute a lien against all property of the person ordered to pay the costs and may be enforced in the same manner as if the same were a judgment lien. The executive director is authorized and empowered to enforce the lien in any manner permitted by law for the enforcement of a judgment lien, and any magistrate clerk, circuit clerk, county clerk, sheriff or other office of this state or any political subdivision shall provide the executive director such services as may be necessary to enforce the lien without charge or fee to the executive director.
(h) Circuit clerks shall keep a an itemized record of repaid counsel fees and defense expenses paid pursuant to the provisions of this article collected pursuant to this section and shall, quarterly, pay the moneys to the state auditor who shall deposit the funds in the general revenue fund of the state, and provide a report of the moneys received during the quarter to the executive director.
(i) The making of an affidavit subject to inquiry under this section does not in any event give rise to criminal remedies against the affiant nor occasion any civil action against the affiant except for the recovery of costs as in any other case where costs may be recovered and the recovery of the value of services, if any, provided pursuant to this article. A person who has made an affidavit required by this article knowing the contents thereof to be false may be prosecuted for false swearing as provided by law.
 §29-21-17. Private practice of law by public defenders.
(a) No full-time public defender or full-time assistant public defender may engage in any private practice of law except as provided in this section.
(b) A board of directors may permit a newly employed full-time public defender or full-time assistant public defender to engage in the private practice of law for compensation for the sole purpose of expeditiously closing and withdrawing from existing private cases from a prior private practice. In no event shall any person employed for more than ninety days as a full-time public defender or full-time assistant public defender be engaged in any other private practice of law for compensation: Provided, That until the first day of January, one thousand nine hundred ninety-three, the prohibition against the private practice of law does not apply to full-time public defenders employed in Class II, III or IV counties as defined by article seven, chapter seven of this code.
(c) A board of directors may permit a full-time public defender or full-time assistant public defender to engage in private practice for compensation if the defender is acting pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction and if the defender remits to the public defender corporation all compensation received.
(d) A board of directors may permit a full-time public defender or full-time assistant public defender to engage in uncompensated private practice of law if the public defender or assistant public defender is acting:
(1) Pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction; or
(2) On behalf of a close friend or family member; or
(3) On behalf of a religious, community or charitable group.
(e) Violation of the requirements of this section is sufficient grounds for immediate summary dismissal regardless of the conditions of employment established by a corporation's board of directors.
§29-21-19. Audits.

(a) The accounts of each public defender corporation shall be audited annually as soon as possible after the end of each state fiscal year. Such audits shall be conducted in accordance with generally accepted auditing standards by the state tax commissioner.
(b) The audits shall be conducted at the place or places where the accounts of the public defender corporation are normally kept. All books, accounts, financial records, reports, files, and other papers or property belonging to or in use by the public defender corporation and necessary to facilitate the audits shall be made available to the person or persons conducting the audits; and full facilities for verifying transactions with the balances and securities held by depositories, fiscal agents, and custodians shall be afforded to any such person.
(c) The report of the annual audit shall be filed with the agency, submitted to the joint committee on government and finance and shall be available for public inspection during business hours at the principal office of the public defender corporation. The report of each such audit shall be maintained for a period of at least five years at the office of the agency.

Note: The purpose of this bill is to reform and improve the public defender services and to continue the agency until July 1, 1999.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.