Indigent Defense in Texas and the Texas Fair Defense Act

The right to counsel in criminal cases is recognized not only in the U.S. Constitution but also in the Texas Constitution and Code of Criminal Procedure. However, prior to 2001, Texas had no coordinated system for providing public defense services to poor people accused of crime and the reality of indigent defense in Texas was grim. A patchwork of varying local procedures governed the right to counsel, and the only thing that was certain was that every court in Texas handled indigent defense issues differently than every other court — even a court just across the hall.

In an important effort to standardize and improve indigent defense, a coalition of civil rights and community organizations worked with legislators to pass the Texas Fair Defense Act (FDA) in 2001, which, for the first time, required all criminal courts in Texas to adopt formal procedures for providing appointed lawyers to indigent defendants. These procedures must be consistent in all courts of the same jurisdiction within any particular county (e.g., all district (felony) courts in a county must adopt consistent procedures), and counties may adopt unified procedures that apply to all criminal courts (felony and misdemeanor) in a county. You can view your county‘s indigent defense procedures, called an “indigent defense plan,” here.

Although the FDA gives local officials significant flexibility in establishing their indigent defense plans, every plan is required to meet minimum statewide standards and/or specify local procedures in the following areas:

The FDA also created a new state indigent defense commission, the Task Force on Indigent Defense, to oversee the implementation of the FDA and administer a new state program for awarding indigent defense grants to counties.

Finally, to help fund the reforms required by the FDA, in 2001 the Texas Legislature appropriated the first-ever state funding for indigent defense — at that time, approximately $12 million per year — to supplement county spending, which then totaled approximately $94 million per year.

Although the FDA has greatly improved access to counsel for some defendants, the FDA has not yet yielded significant benefits for many misdemeanor defendants or for felony defendants released on bond. Many bond defendants are discouraged from requesting an appointed lawyer or only receive an appointed lawyer after several court appearances and months of delay. In the misdemeanor courts, data reported by counties to the Texas Office of Court Administration shows that three-quarters of Texas counties appoint counsel in fewer than 20 percent of jailable misdemeanor cases, with the majority of those counties appointing counsel in fewer than 10 percent of cases.

Many jailable misdemeanor cases in Texas are resolved by uncounseled guilty pleas obtained using prosecutorial and judicial tactics that pressure defendants into giving up their right to a lawyer in the absence of a knowing and intelligent waiver of the right to counsel. While TFDP believes that these practices are unconstitutional, Texas law now explicitly bans many of them as well. HB 1178, signed by Governor Perry in June 2007 and effective on September 1, 2007, prohibits many local practices that limit poor defendants‘ access to appointed counsel.

TFDP is active is providing courts across Texas with information on the requirements of HB 1178 and with “best practices” materials to ensure that poor defendants rights are protected. A conference paper designed to assist local officials in implementation of HB 1178 is available here.