Dallas Morning News

January 13, 2002

The quality of legal representation for the poor in Texas –– the subject of harsh criticism during the Bush presidential campaign –– began moving toward improvement this month with the implementation of the state's Fair Defense Act.

The massive undertaking is off to a good start, observers say, but it's too early to tell how quick or effective the reforms will be.

The 2001 Legislature called for the overhaul of the state's system of defending poor people charged with crimes. The law, effective Jan. 1, requires the cooperation of law enforcement personnel, judges, attorneys, and county commissioners throughout the state.

"We've gotten a little bit out of the bottom of the barrel, and we're rising toward the top," said Bill Beardall, executive director of the Equal Justice Center, a nonprofit group based in Austin. "How far we'll rise is still a tale that will unfold over the next year or two."

The new law was designed to standardize and improve legal representation for criminal defendants who cannot afford an attorney. It mandates quick access to an attorney, an objective appointment, and fair pay by the county.

In the past, the indigent defense system in Texas varied not just from county to county but judge to judge, with the quality ranging from good to horrendous, according to several studies. Defendants in some counties sat in jail for months before receiving a lawyer, and some court-appointed lawyers were poorly qualified. Pay for court-appointed lawyers was often inadequate.

The new law requires all 254 counties to submit their plans to meet the new standards to the state Office of Court Administration. Officials say they believe virtually all plans have been filed as required.

The plans will undergo review by the new 13-person Task Force on Indigent Defense.

Observers say the effort might stall, however, because Gov. Rick Perry has not appointed his five members to the task force.

The panel is responsible for developing policies and standards for counties and disbursing millions of dollars in grants. Without Perry's appointments, the group cannot meet and begin its work.

Time concern

"It's a grave concern, because the entire criminal justice system is waiting for the task force to kick into gear––which it can't do until the governor appoints them," said Keith Hampton of the Texas Criminal Defense Lawyers Association. "I'm growing increasingly impatient and concerned."

Judge Diane DeVasto, chairman of the Indigent Defense Committee for the judicial section of the state bar, said she was not concerned yet. "If too much more time elapses here, where we don't have the appointment of the task force, that could hurt the process," she said.

Judges across the state worked hard to formulate new plans and meet the Jan. 1 deadline, she said. "If we're way off base, we need to know it," she said. "If we're pretty much where we need to be, we need to know it."

Gene Acuna, spokesman for Mr. Perry, said the governor is reviewing the appointment procedures. "The governor takes this issue very seriously," Mr. Acuna said.

Mr. Perry praised the legislation when he signed it, saying, "Texans want their state to be tough on crime, but they also want a system of justice that is fair."

Mr. Beardall of the Equal Justice Center said he is pleased with the county plans he has seen.

"We're encouraged ... by the number of counties where there's been a good faith effort to implement the reforms in the Fair Defense Act," he said. "Some of these counties have adopted improvements that go well beyond the minimum requirements of the law."

Appointing attorneys

From the handful of reports he has seen, Mr. Beardall said, it appeared that most counties were refining their appointment process and raising the pay of appointed attorneys, instead of shifting to public defenders' offices with full-time lawyers or contract attorneys.

Judge John Ovard, presiding judge of the First Administrative Judicial Region, which includes Dallas, said most counties in his jurisdiction had moved to a rotation system of appointments, in which judges appoint attorneys from a list of qualified lawyers on a rotating basis instead of on their personal preferences.

Dallas County uses a combination of public defenders and appointments, and appointments are now being made on a rotating basis, said Judge Keith Dean, chairman of the local committee that formulated the changes. Judges work from lists of attorneys approved for appointments. The new system has already taken effect in some courts, but is taking longer to implement in others, because of computer problems.

Systems of appointments by rotation have been adopted by many rural counties in the Panhandle, said Judge Kelly Moore, who presides over the Ninth Administrative Judicial Region. That method is more difficult for rural counties, because the pool of available lawyers is small.

"If you're trying to use a true random appointment system, if you've got only two or three attorneys to work with, or some counties have no attorneys, it's hard," he said.

"But it's the law," he added, "and I think everybody's making a good-faith effort to comply."

The challenges facing rural counties are among the issues that need to be addressed by the task force, Mr. Hampton said.

"The act fits urban areas perhaps more readily than rural ones," he said. "The task force is going to want to develop and fine-tune and tailor things for the rural areas."

Sen. Rodney Ellis, D-Houston, who sponsored the legislation, said he hoped the task force could meet soon so the reforms can move forward.

"The fact that the presidential spotlight is not on Texas and on criminal justice issues shouldn't deter us," he said. "I'm convinced the state will be seen in a very negative light if we don't take criminal justice reform seriously."