Texas’ New Approach to Indigent Defense

The Texas Legislature took a giant step last legislative session when it passed the Fair Defense Act (Senate Bill 7), which lays the groundwork for modernization of and uniformity among indigent defense systems in Texas’ 254 counties, and even among different criminal courts within a particular county. Many existing systems had been criticized as unfair and inefficient — indigent defendants might wait weeks or months after arrest before appointment of counsel; attorneys might be beholden to a particular judge whom they rely on for appointments, rather than independent in the pursuit of their client’s interests; and counties bore the entire financial burden of providing indigent defense. The Fair Defense Act (FDA) promises to address these and other problems, and by most accounts it has already made an impact in terms of faster and more neutral appointments. But those involved caution not to expect too much, too fast.

“No change of this size can take place without a long-term, gradual, and steady process,” said Bill Beardall, director of the Equal Justice Center, a non-profit public interest group formed specifically to help study and evaluate the progress of the FDA’s implementation and provide support where needed. “The FDA provides certain broad guidelines but leaves to local initiative and control exactly how the counties go about implementing the Act. The process is moving quicker than we thought, but will take 10 years to complete.”

The Act’s key provisions require that counsel be appointed promptly after an indigent defendant is arrested, that attorney appointment methods be neutral, and that appointed attorneys be qualified and fairly compensated. Counties are encouraged, but not required, to implement a rotational or “wheel” appointment system, where the judge appoints the next attorney on an appointment list rather than choosing an attorney him or herself. Under the Act, counties can also set up public defender systems, and in rural counties those systems could be set up to span multiple counties which would be served by one public defender’s office.

By January 2002, counties were required to submit indigent defense plans to the Texas Task Force on Indigent Defense that meet the minimum requirements of the FDA. In addition to overseeing the implementation of the FDA requirements, the task force develops additional standards and policies to improve indigent defense, provides technical support to counties, and administers state funding in the form of incentive grants to counties for implementing FDA-compliant plans. This grant money represents the first-ever state funding for indigent defense in Texas — more than $13 million for the fiscal year that began in September 2001. Beardall estimates that these funds will cover about 10 percent of the annual costs counties incur in providing indigent defense.

The task force got off to a running start, partly because staff members of the Office of Court Administration (OCA) were designated to begin preparing to implement the FDA even before the task force was formed. Jim Bethke, who was an attorney with the OCA, is the task force director. It is composed of appointed and ex-officio members, including county commissioners, a criminal defense attorney, and a public defender. Sharon Keller, presiding judge of the Texas Court of Criminal Appeals, serves as its chair.

“The task force has moved more quickly than people expected, and done more than people expected,” said Judge Keller. “I think everyone watching the task force is happy with our progress.”
On Oct. 23, the task force announced it would award an additional $1.7 million in grant money this fiscal year, including $340,000 originally earmarked for task force start-up costs, but not actually spent by the task force. Judge Keller said the task force has met the schedule set out by its strategic plan. “Our big achievement this first year was getting the grant program in place,” she said. “We started absolutely from scratch, developed grant rules, and got the money out to the counties. Everybody on the task force is working full time at some other job but they have all worked really hard on task force matters. It’s amazing to me that they’re willing to devote this much time to it, but they are.”

Grants for the first fiscal year were based on formulas — if the counties met certain requirements, they received grant money. Next year, some discretionary grants will also be awarded to encourage innovation and promote best practices among the various counties. “That’s one of the exciting parts of this,” Keller said. “There are a lot of good practices in the state that are not necessarily widespread. I’m hoping they will be replicated in other counties.”

With its implementation underway the FDA is not without its critics, notably judges who feel the rotational system of appointment is more of a burden than a help in their counties, or who find the Act’s paperwork and reporting requirements cumbersome. Beardall and others helping with the FDA’s implementation anticipate there might be some movement during the upcoming legislative session to roll back some of the Act’s requirements.

Catherine Greene Burnett, associate dean and professor at South Texas College of Law and chair of the State Bar Legal Services to the Poor in Criminal Matters Committee, is less worried about the upcoming session. “There will be a move to roll the FDA back, and another to expand it, but I think the Texas Legislature is going to hold firm,” she said. “The Act may need some fine tuning, but it was a really good piece of legislation that protects county rights. Plus, we have received so much positive national attention for this bold new step that I am hard-pressed to imagine the legislature wanting to reverse that.”

Burnett’s optimism is fueled by what she calls the “genius” of the FDA. “One of the brilliant aspects of the act is that it didn’t take a cookie cutter approach for Texas,” she explained. “I think the legislature was very visionary in not trying to force a one-size-fits-all model on the counties. For example, the default provision is for rotating counsel, but counties are also free to create public defender systems. If the counties want to conduct business as usual they can, but they have to shoulder the expense for delivery.”

Like the Equal Justice Center, Burnett’s committee is also working in conjunction with the Task Force on Indigent Defense. She said the committee has provided information and recommendations, and has had a task force member in attendance at each of its meetings. The committee is constructed similarly to the task force, in that its members include prosecutors, public defenders, and judges. “One benefit of doing this as a Bar committee is that we have to look at our entire constituency, not just a particular special interest group,” Burnett said.

The cooperation among the various players in the FDA implementation process was evident in September, when more than 120 attorneys, public defenders, and judges met at the Texas Law Center to discuss and share best practices among Texas counties as they implement programs to comply with the Act. This meeting, the “Forum on Cost-Effective Indigent Defense Systems in Texas,” was held in conjunction with a national meeting, the annual conference of the American Council of Chief Defenders. Co-sponsored by the Legal Services to the Poor in Criminal Matters Committee, National Legal Aid and Defender Association, Equal Justice Center, and Texas Criminal Defense Lawyers Association, the forum featured speakers from around Texas and the country who described a variety of private assigned counsel systems, private contract attorney systems, and urban and rural public defender systems — and weighed the pros and cons of these systems.

Among the speakers was Clara Hernandez, who heads the public defender’s office in El Paso County — one of only five Texas counties with such an office (the others are Colorado, Dallas, Webb, and Wichita). She explained that El Paso uses a wheel system for assignment of counsel, and that the public defender’s office handles about 50 percent of appointments. She said that while public defender’s offices must overcome the obstacle of resentment from some segments of the bar, in El Paso the private bar and judges are supportive of the public defender’s office, which has grown from two lawyers at the time of its creation in 1986 to today’s staff of 27 lawyers, six investigators, and some social workers. She said the public defender’s office serves as a resource for private attorneys handling criminal appointments. “We provide a place for them to come and brainstorm with us,” said Hernandez. “We make our investigators available to them to help investigate their cases. Over the years, we’ve established a reputation in town and a lot of attorneys who were tired of private practice have come over to work for us.”

Judge Sid L. Harle of the 226th District Court of Bexar County and Marshall Shelsy, the staff attorney for the Criminal Courts at Law in Harris County, explained how their counties have shifted to rotational appointment systems to comply with the FDA. Judge Harle said Bexar County had to raise its fee schedules for appointed counsel because under the FDA the county could no longer require attorneys to pay into a fund if they did not want to accept criminal appointments. He said the rotational system has alleviated allegations of cronyism and favoritism among judges and appointed attorneys. Bexar County is using a rotational system for its district courts, while Harris County is rotating appointments for county courts.

Judge Jane Roden, judge of Dallas County Criminal Court No. 8 and previously the chief public defender in Dallas County, and Jeanette Drescher Green, who is currently the Dallas public defender, described the Dallas indigent defense system, which is hybrid in that it also allows for appointment of private counsel. Roden said she believes the FDA places too much emphasis on the qualifications of counsel as far as experience handling criminal cases. “Some of the most qualified on paper are some of the sorriest lawyers,” she said. “Senate Bill 7 and the qualifications requirements are ignoring new and bright lawyers who can really add to our system.” Roden said she believes a public defender system is best suited for misdemeanor offenses. “It is cost-effective and for the most part you get very good representation,” Roden said. “But there is burnout and boredom among the lawyers. That’s a challenge I’ve turned over to Jeanette — how do you make those cases exciting?”

Out-of-state systems discussed included the statewide indigent defense system in Massachusetts, where a central office oversees every case in the state where a right to counsel arises, and Colorado’s alternate defense counsel system, which takes all conflicts cases from court-appointed attorneys.