§175. Proceedings to determine indigency

A.(1)(a) A preliminary inquiry and determination of indigency of any accused person shall be made by the court not later than arraignment and such determination may be reviewed by the court at any other stage of the proceedings.

(b) A person will be deemed "indigent" who is unable, without substantial financial hardship to himself or to his dependents, to obtain competent, qualified legal representation on his own. "Substantial financial hardship" is presumptively determined to include all defendants who receive public assistance, such as Food Stamps, Temporary Assistance for Needy Families, Medicaid, Disability Insurance, resides in public housing, or earns less than two hundred percent of the Federal Poverty Guideline. A defendant is presumed to have a substantial financial hardship if he or she is currently serving a sentence in a correctional institution or is housed in a mental health facility.

(c) Defendants not falling below the presumptive threshold will be subjected to a more rigorous screening process to determine if their particular circumstances, including seriousness of the charges being faced, monthly expenses, local private counsel rates, would result in a "substantial hardship" were they to seek to retain private counsel.

(d) If the court makes the preliminary determination that the accused is or may be indigent, the court shall require the accused to make application to the district public defender office or an attorney appointed or under contract to provide indigent defender services, who shall inquire further into the accused's economic status and, upon determining that the accused is indigent, shall file a certification thereof, in such form as the court may require and without paying costs in advance, in the record of the proceeding or enroll as counsel.

(e) The accused shall be responsible for applying for indigent defense counsel and for establishing his indigency and entitlement to appointment of counsel. Any oral or written statements made by the accused in or for use in the criminal proceeding and material to the issue of his indigency shall be made under oath or an equivalent affirmation.

(f) An accused person or, if applicable, a parent or legal guardian of an accused minor or an accused adult person who is claimed as a dependent on the federal income tax submission of his parent or legal guardian, who makes application to the district office certifying that he is financially unable to employ counsel and requesting representation by indigent defense counsel or conflict counsel, shall pay a nonrefundable application fee of forty dollars to the district office or its designee, which fee shall be in addition to all other fees or costs lawfully imposed. If the board or other appropriate official determines that the person does not have the financial resources to pay the application fee based upon the financial information submitted, the fee may be waived or reduced. An accused who is found to be indigent may not be refused counsel for failure to pay the application fee.

(g) The proceeds shall be deposited to the judicial district indigent defender fund in the judicial district in which the application was made.

(h) The funds collected pursuant to this Section and all interest or other income earned from the investment of such funds shall be used and administered by each district public defender.

(i) The district public defender shall maintain a record of all persons applying for representation and the disposition of the application and shall provide this information to the board on a monthly basis as well as reporting the amount of funds collected or waived.

(2) The district public defender or his assistants or an attorney providing indigent defender services pursuant to a contract with the board shall be allowed to summon witnesses to testify before the court concerning the financial ability of any accused person to employ counsel for his defense.

(3) Failure of the judge to comply with provisions of this Section shall result in deduction of reasonable criminal defense costs from the Judicial Expense Fund.

B.(1) In determining whether or not a person is indigent and entitled to the appointment of counsel, the court shall consider whether the person is a needy person and the extent of his ability to pay. The court may consider such factors as income or funds from employment or any other source, including public assistance, to which the accused is entitled, property owned by the accused or in which he has an economic interest, outstanding obligations, the number and ages of dependents, employment and job training history, and level of education.

(2) Release on bail alone shall not disqualify a person for appointment of counsel. In each case, the person subject to the penalty of perjury shall certify in writing such material factors relating to his ability to pay as the court prescribes.

C. Nothing in this Chapter shall prevent a criminal defendant from obtaining representation through the board at no charge.

D. The judicial administrator for the Louisiana Supreme Court shall develop a form to be used by the court in determining indigency. The form, at a minimum, shall include the following determinations by the court:

(1) Whether the defendant receives any form of public assistance.

(2) The occupational status of the defendant and income, if any.

(3) Whether the payment of legal fees would deprive the defendant or his dependents of necessities of life including clothing, shelter, or food.

(4) Whether the defendant is eligible for indigent defender services based upon the defendant's income and assets.

Acts 2007, No. 307, §1; Acts 2016, No. 224, §1.