37-1-126 - Right to counsel Administrative fee.
37-1-126. Right to counsel Administrative fee.
(a) (1) A child is entitled to representation by legal counsel at all stages of any delinquency proceedings or proceedings alleging unruly conduct that place the child in jeopardy of being removed from the home pursuant to § 37-1-132(b).
(2) (A) An adult is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving:
(i) Child abuse prosecutions pursuant to §§ 37-1-412 and 39-15-401;
(ii) Contributing to the delinquency or unruly behavior of a child pursuant to § 37-1-156 or contributing to the dependency and neglect of a child pursuant to § 37-1-157;
(iii) Violation of compulsory school attendance pursuant to §§ 49-6-3007 and 49-6-3009; or
(iv) Criminal contempt.
(B) A parent is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving:
(i) Abuse, dependency or neglect pursuant to § 37-1-102; or
(ii) Termination of parental rights pursuant to § 36-1-113.
(3) If the person is indigent, the court shall provide counsel for the indigent person. If a person appears without counsel, the court shall ascertain whether the person knows of the right to counsel and of the right to be provided with counsel by the court if the person is indigent. The court may continue the proceeding to enable a person to obtain counsel and shall provide counsel for an unrepresented indigent person upon request.
(4) In all delinquency hearings or in unruly hearings in which the child may be in jeopardy of being removed from the home as specified in § 37-1-132(b), counsel must be provided for a child not represented by the child's parent, guardian, guardian ad litem or custodian or where the child's interests conflict with the parent, guardian, custodian or guardian ad litem. If the interest of two (2) or more persons conflict, separate counsel may be provided for each of them.
(b) A person is indigent if that person does not possess sufficient means to pay reasonable compensation for the services of a competent attorney.
(c) (1) A child, who is provided with court-appointed counsel pursuant to this section, shall be assessed by the court at the time of appointment a nonrefundable administrative fee in the amount of fifty dollars ($50.00). The administrative fee shall be assessed only one (1) time per case and shall be waived or reduced by the court upon a finding that the child and the child's parents or legal guardians lack financial resources sufficient to pay the fee in such amount. The fee may be increased by the court to an amount not in excess of two hundred dollars ($200) upon a finding that the child or the child's parents or legal guardians possess sufficient financial resources to pay the fee in such increased amount. If the indigent person for whom counsel is appointed is an adult, the court shall also assess and collect an administrative fee as provided in this subdivision (c)(1). The administrative fee shall be payable, at the court's discretion, in a lump sum or in installments; provided, that the fee shall be paid prior to disposition of the case or within two (2) weeks of appointment of counsel, whichever shall first occur. Prior to disposition of the case, the clerk of the court shall inform the judge whether the administrative fee has been collected. Failure to pay the administrative fee assessed by the court shall not reduce or in any way affect the rendering of services by court-appointed counsel; provided, that willful failure to pay such fee may be weighed by the court when determining appropriate disposition of the child if the court finds that the child engaged in delinquent or unruly conduct and is, therefore, in need of treatment or rehabilitation.
(2) The administrative fee shall be separate from and in addition to any other contribution or recoupment assessed pursuant to law for defrayal of costs associated with the provision of court-appointed counsel. The clerk of the court shall retain a commission of five percent (5%) of each dollar of administrative fees collected and shall transmit the remaining ninety-five percent (95%) of each such dollar to the state treasurer for deposit in the state's general fund.
(3) If the administrative fee is not paid prior to disposition of the case, then the fee shall be collected in the same manner as costs are collected; provided, that upon disposition of the case, moneys paid to the clerk, including any cash bond posted by or on behalf of the child or adult, shall be allocated to taxes, costs and fines and then to the administrative fee and any recoupment ordered. The administrative fee and any recoupment or contribution ordered for the services of court-appointed counsel shall apply and shall be collected even if the charges against the party are dismissed.
(4) As part of the clerk's regular monthly report, each clerk of court, who is responsible for collecting administrative fees pursuant to this section, shall file a report with the court and with the Tennessee administrative director of the courts. The report shall indicate the following:
(A) Number of children and adults for whom the court appointed counsel pursuant to this section;
(B) Number of children and adults for whom the court waived the administrative fee;
(C) Number of children and adults from, or on behalf of, whom the clerk collected administrative fees;
(D) Total amount of commissions retained by the clerk from such administrative fees; and
(E) Total amount of administrative fees forwarded by the clerk to the state treasurer.
[Acts 1970, ch. 600, § 26; 1980, ch. 796, § 2; T.C.A., § 37-226; Acts 1997, ch. 547, § 2; 2008, ch. 1084, §§ 1-4; 2009, ch. 417, § 1.]