Texas Lawyer

January 17, 2001

Bexar County Emphasizes Quality Over Cronyism

By Mary Alice Robbins Texas Lawyer

San Antonio criminal-defense lawyer William Davidson says he had been licensed to practice law only a few days when he was appointed to represent a man facing a possible 20-year sentence for kidnapping.

"I didn't have a clue what I was doing," recalls Davidson, now a five-year veteran.

Davidson, a solo, says he sought advice from other defense attorneys and was able to work out a satisfactory plea bargain for his client. But he says a novice attorney should not have been appointed to represent a defendant facing such a serious charge.

Sweeping changes made in Bexar County should ensure better representation for indigent criminal defendants in the future.

"The biggest change is they don't allow just anybody to get these appointments," says George Scharmen, founding president of the San Antonio Criminal Defense Lawyers Association. First-year lawyers can be appointed to handle misdemeanor cases and qualify for felony cases as they gain experience and receive more training, Scharmen says.

"What we tried to do here was to follow not only the letter of the law, but the theory behind it," says Judge Mark Luitjen, who heads the Bexar County committee that oversees attorney qualifications.

Luitjen, presiding judge of the 144th District Court, says the system is designed to remove cronyism and assure that persons certified as indigents receive adequate representation.

An official with Texas Appleseed, a nonprofit organization that seeks systemic reforms in the areas of justice and poverty, praises the Bexar County plan.

"We think Bexar County has done an admirable job in crafting a thoughtful, detailed plan that is ahead of the game," says Hanna Liebman Dershowitz, legal director of the group.

Dershowitz, former general counsel and senior policy adviser to state Sen. Rodney Ellis, a Houston Democrat and attorney, helped draft the Fair Defense Act passed by the Legislature last year. She has been reviewing the plans developed by counties around the state.

The Bexar County plan stands out, Dershowitz says, noting that the county has gone from a system with no qualifying criteria for attorneys seeking court appointments to one with achievable standards based on attorneys' experience.

"It's a very solid plan," she says.

Appointment lists have been developed for different categories of offenses. The amount of experience that an attorney must have to get on an appointment list correlates with the severity of the offense allegedly committed by those needing free legal counsel.

To qualify for the state jail felony list, for example, an attorney must have at least one year of experience in criminal litigation and prior experience in at least three criminal jury trials. But to be on the first-degree felony list, an attorney must have a minimum of four years' experience and have tried four felony jury trials in the last five years, serving as lead counsel in at least two of those trials.

Exceptions can be made for the experience criteria, but only with the approval of a majority of the district judges, Luitjen says.

Judges, who have been accused in the past of favoring attorneys who contributed to their political campaigns, won't make the majority of the appointments under the new system. Luitjen says attorneys are selected from a rotating wheel that "filters" the names based on language requirements, severity of offense, availability of an attorney, and the date of his or her last appointment.

According to Luitjen, the district judges retained their discretion to appoint attorneys in death-penalty cases. While some attorneys meet the requirements set out in the plan for representing a defendant facing the possibility of a death sentence, they shouldn't handle such cases, Luitjen says. Judges are in the best position to know who those attorneys are, he adds.

Luitjen says the judges also appoint attorneys for probation revocations because those cases need to be handled quickly. Trying to go through the new appointment process is onerous and too slow in revocation cases, he says.

Cost Increases

The plan establishes a uniform cutoff for determining whether a defendant is indigent. Attorneys will be appointed for defendants whose net income is less than $716 a month after they've paid for housing, food, car payments, car insurance, utilities and other necessary expenses.

The county also boosted the fees paid to court-appointed attorneys for the first time in 13 years, Luitjen says. Under the new schedule, he says, a lawyer can earn a flat fee of $750 for a first-degree felony case that goes to trial or is pleaded out.

The flat fees under the old system were $500 for trial and $400 for a plea, he says.

Luitjen says attorneys who opt to itemize can earn $125 an hour at the trial of a first-degree felony with the new schedule, compared to the $200-a-day court rate paid in the past. The hourly rate for out-of-court time jumps from $20 to $30 up to $75, he says. Attorneys also can itemize other expenses.

Scharmen says the fees are closer to being fair than they were in the past but aren't high enough to attract him. "It's motivating for younger lawyers to do the work to get the job done," he says.

Luitjen says Bexar County previously charged attorneys $500 a year to have their names removed from the list used to make appointments. The so-called "San Antonio Plan" generated about $500,000 to $600,000 a year that was used to pay bonuses to court-appointed attorneys, the judge says.

Under the Fair Defense Act, attorneys cannot be required to represent indigents, and Luitjen says Bexar County has stopped charging attorneys the $500 fee.

The county expects to spend about $1.5 million more this year than it spent in 2001 to cover the higher attorneys' fees, Luitjen says. The increase will be even greater when the costs for investigations and experts are figured in, he says.

But the judge says bugs still need to be worked out with regard to the costs and implementation of the new system.

Notes Luitjen, "It's a work in progress."