Title 18—PUBLIC DEFENDER COMMISSION
Division 10—Office of State Public Defender
Chapter 3—Guidelines for the
Determination of Indigence
PROPOSED AMENDMENT
18 CSR 10-3.010 Guidelines for the Determination of Indigence. The Missouri Public Defender Commission / Office of State Public Defender is amending 18 CSR 10-3.010 as follows: Current Paragraphs (2), (2)(A) and (2)(B) are amended to define public assistance and income; new Paragraph (3)(A) is added to establish standards for bond in determining indigence; new Paragraph (4)(A) is added to establish standards for applicants with private counsel on another case; current Paragraph (3) is renumbered Paragraph (5); current Paragraph (3)(A) is renumbered Paragraph (5)(A) and amended to establish indigence at 150% of federal proverty guideline; current Paragraph (3)(B)(1), Debts and Expenses, is deleted (rescinded); current Paragraph (3)(B)(2) is renumbered Paragraph 5(B)(1) and amended to modify standards for spousal income; current Paragraph (3)(B)(3) is renumbered Paragraph (5)(B)(2) and amended to modify standards for parental income; current Paragraph (3)(B)(4), Assets, is deleted (rescinded); current Paragraph (4) is renumbered Paragraph (6); current Paragraph (4)(A) is reunmbered Paragraph (6)(A) and amended to remove duplicative statutory language already contained in Sec. 600.090 RSMo; new Paragraph (6)(B) is added to establish that persons who have received services within prior 12 months are presumed indigent, absent change of circumstances; current Paragraph (4)(B) is renumbered Paragraph (6)(C).
PURPOSE: This amendment aligns the indigence guidelines with the coiniciding statutes and provides for an efficient and consistent determination process to ensure only eligible applicants receive Missouri State Public Defender services.
(2) Public Assistance [ , Unemployment Compensation and Income Maintenance Payments.]
(A) [Unemployed defendants receiving public assistance are eligible for defense services provided by the Office of State Public De-fender regardless of the amount of the benefits. If the defendant is receiving public assistance and has a part-time job, or other assets, the weekly amount of benefits and the additional source of income should be added together and compared to the maximum Qualifying Income Scale to Determine Indigence.] Applicants receiving public assistance are eligible for defense services provided by Missouri State Public Defender. Food stamps, WIC, TANF, Medicaid, Public Housing payments, Childcare Assistance, Supplemental Security Income and similar benefits are considered public assistance.
(B) If an [defendant] applicant is receiving disability payments, pension, unemployment compensation, Veteran’s Benefits, or Social Security Retirement or Disability benefits, this is considered income and the amount of the payment must be considered.
(3) Ability to Make Bond.
(A) The ability of an applicant to make a cash bond shall be considered on the question of indigence. Any amount of cash bond posted directly to the court shall be considered as a means available to the applicant to obtain counsel, and compared directly to the probable expense and burden of defending the pending case. The ability of an applicant to make a surety bond in excess of $49,999 should be considered on the question of whether the applicant has the means at his/her disposal or available to him/her to obtain counsel in his/her behalf.
(4) Ability to Hire Private Counsel on a Pending Case
(A) The ability of an applicant to hire private counsel on one case should be considered as evidence that the applicant has means available to obtain counsel on the subsequent case in which the applicant seeks services, unless the assumed cost of private counsel on the case(s) without representation greatly exceeds that of the case(s) with representation.
[ (3) ] (5) Maximum Qualifying Income Scale.
(A) A defendant may be considered indigent if his/her gross pay and other sources of income do not exceed 150% of the federal poverty guideline as issued in the Federal Register by the U.S. Department of Health and Human Services.
(B) When making the financial determination, the following factors should be taken into consideration:
[ 1. Debts and Expenses—Debts should be taken into consideration to the extent that they are reasonable and necessary. Debts are considered only if actual payments are being made; ]
[ 2. ] 1. Spouse’s Income—If the applicant is married and not separated from his/her spouse, [T] the spouse’s financial status shall be considered unless the spouse is the alleged victim;
[ 3. ] 2. Parent’s Income—[The parent’s in-come should be considered if they support the defendant and the defendant is under eighteen (18) years of age unless a parent is an alleged victim of the charged offense. Defendants eighteen (18) years or older shall be considered independent from family income unless they are full-time students or are dependent upon their parents or when one or both parents post bond; and] The income of a parent who is financially responsible for a child under eighteen (18) years of age must be considered, unless the parent is an alleged victim, or an alleged victim is a member of the family of the child or the family of the parent. Eligibility is not forfeited when the person financially responsible for the child is able to hire counsel but does not do so if the child does not have the means at his/her disposal to hire counsel. Children under 18 years of age without the means at their disposal to hire counsel are presumed to be indigent when in the legal custody of Missouri Department of Social Services/Children’s Division, or when the child is detained and the parent or custodian cannot be located or does not comply with the application process.
[4. Assets—If the person owns or is buying a home, the equity must be determined and considered on the question of indigence. Bank accounts, stocks, bonds, jewelry, equity in insurance and any other financial assets must be considered.]
[ (4) ] (6) Discretionary Aspects of Determining Indigence.
(A) The previously mentioned financial criteria are to be applied in all cases and considered with the probable expense and burden of defending the case. [If a person is determined to be eligible for the services provided by the State Public Defender System and if, at the time such determination is made, s/he is able to provide a limited cash contribution toward the cost of representation without imposing a substantial hardship upon himself/herself or his/her dependents, such contribution shall be required as a condition of his/her representation by the State Public Defender System. If at any time, either during or after the disposition of his/her case, such defendant becomes financially able to meet all or some part of the cost of services rendered to him/her, he shall be required to reimburse the commission in such amounts as s/he can reasonably pay, either by a single payment or by installments of reasonable amounts, in accordance with a schedule of charges for public defender services prepared by the commission; and]
(B) An applicant who is currently receiving services from the public defender, or who has received those services within the last 12 months shall be presumed indigent and eligible for services unless the applicant’s application indicates a change in circumstances which would make the applicant not indigent.
(C) An individual requesting public defender service shall complete and sign an Application for Public Defender Services.
AUTHORITY: sections 600.017(10), 600.086 and 600.090, RSMo [2000] 2016. * Original rule filed Nov. 12, 1985, effective Feb. 13, 1986. Amended: Filed Feb. 14, 2002, effective Aug. 30, 2002. Amended: Filed July 24, 2006, effective Jan. 30, 2007; Amended: Filed December 29, 2021
*Original authority: 600.017, RSMo 1982; 600.086, RSMo 1976, amended 1982, 1993 and 600.090, RSMo 1976, amended 1982, 1986; 600.017(10), 600.086 and 600.090 RSMo 2000.
PUBLIC COST: This proposed amendment will not cost the Missouri Public Defender Commission / Office of State Public Defender, any other agency of state government, or any political subdivision thereof, more than five hundred dollars ($500) in the aggregate.
PRIVATE COST: This proposed amendment will not have any cost for private entitites.
NOTICE TO SUBMIT COMMENTS: Anyone may file a statement in support of or in opposition to this proposed amendment with the Missouri Public Defender Commission / Office of State Public Defender, Woodrail Centre, 1000 W. Nifong, Bldg. 7, Ste. 100, Columbia, MO 65203. To be considered, comments must be received within thirty (30) days after publication of this notice in the Missouri Register. No public hearing is scheduled.
Reader’s Note: Per Sec. 536.016.3(1) RSMo., this is the text of the proposed amended rule “as filed with the secretary of state.” The Secretary of State’s Office made nonsubstantive grammatical changes to the proposed amended rule. Those changes are reflected in the rule published in the Missouri Register. A link to the proposed rule, as published, is below.
Link to Missouri Register with Final Order of Rulemaking (June 1, 2022)
Link to Secretary of State Table of Contents with Final Order of Rulemaking (June 1, 2022)