Summary of fair defense act implementation so far

(updated August 2002)

June 2001

♦ Texas Fair Defense Act (FDA) signed into law.

-         The FDA requires all 800+ criminal courts in the state, for the first time, to adopt formal indigent defense procedures which are consistent county-wide within each of Texas ’ 254 counties.

-    Although the FDA gives judges significant flexibility as to details, all county indigent defense plans must meet minimum requirements in the FDA, related to:

o       Prompt appointment of counsel

o       Neutral attorney selection methods

o       Attorney qualifications

o       Attorneys fee schedules

o       Compensation for experts and investigators

o       Indigence standards

o       Central reporting of local defense data

-         The FDA created a new state indigent defense commission, the Task Force on Indigent Defense to oversee:

o       Implementation  of reforms

o       Development of additional standards and policies to improve indigent defense.

o       Administration of new state funding for indigent defense in the form of incentive grants to counties

-         To help fund the reforms required by the FDA, the Legislature appropriated the first ever state funding for indigent defense - approximately $12 million per yr -  to supplement the approximately $94 million in county spending.  

January 2002

♦ The FDA goes into effect.  All 254 counties adopt new county-wide indigent defense plans.

♦ Overall, the adoption of the reformed indigent defense plans represents an extraordinary forward step in the quality of indigent defense in Texas , notwithstanding the persistence of serious shortcomings in a number of county plans.

♦ The vast majority of county plans are based on some form of assigned counsel system, with a few contract counsel systems and a few pre-existing public defender programs.

♦ Roughly a third of the new county indigent defense plans are good or very good, at least on paper and judged in terms of compliance with the letter and spirit of the FDA.  Another third would be judged good but for one or two readily correctable defects.  The other third fall substantially short of the FDA’s requirements.  See Texas Fair Defense Act: Report on the Quality of Initial County Plans Governing Indigent Defense in Adult Criminal Cases.

May 2002

♦  The Standards and Policies Committee of the Task Force on Indigent Defense outlines an initial agenda for development of standards related to:

-         Determining who is indigent

-         Continuing legal education requirements for indigent defense counsel

-         Uniform magistrates’ forms for informing defendants of their right to appointed counsel and documenting defendants’ request for appointed counsel.

July 2002

♦  The first round of state funded, indigent defense incentive grants are awarded to counties covering FY 2002.  This is a milestone just by virtue of being the first state funding ever provided for indigent defense in Texas .

♦  For FY 2002, $7.2 million in grant funding is distributed to 238 counties.

♦  To qualify for a grant, counties had to demonstrate:

-         that county indigent defense costs had increased;

-         that the county had adopted a plan which met the new prompt appointment standards of the FDA, requiring appointment of counsel within 4-6 days of arrest depending on the county’s size.

♦   The Task Force made the initial decision to require compliance only with the prompt appointment standards as a condition for the first round of grants, but then to gradually increase the compliance requirements for future grants.

♦   The incentive power of these indigent defense grants was dramatically demonstrated.  More than 100 counties corrected deficiencies in their initial prompt appointment procedures in order to make themselves eligible for a grant.

August 2002

♦  The Task Force on Indigent Defense announces the terms of the FY 2003 indigent defense grant program.  $11.2 million in grants will be awarded to counties. 

♦  $9.6 million of the total will be awarded on a census-based formula to counties that:

-         meet the prompt appointment standards of the FDA (as required for FY 2002); and

-         have adopted some kind of attorney fee schedule and a compensation scheme for experts and investigators in accordance with requirements of the FDA.

♦   Some reform advocates had urged the Task Force to make a more substantial increase in the level of compliance with the FDA required to be eligible for an FY 2003 grant.

♦   In addition to the formula grants, the Task Force will award $1.6 million in discretionary grants in FY 2003 to help counties fund innovations which can serve as models for other counties.  These discretionary grants will be awarded on a competitive basis.