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June 2003 Indigent Defense in the 78th Legislature: Final Report
Texas Indigent Defense Reforms Survive Legislative Session Intact
By Bill Beardall Equal Justice Center
The Texas Fair Defense Act reforms emerged unscathed from the recently concluded Texas legislative session. There was even a significant boost in state funding for indigent defense. These outcomes represents remarkable success in a legislative session that trampled on the interests of the poor in so many other respects, particularly by slashing funding for critical programs. By passing this critical test, the landmark reforms took a big step toward becoming solidified as an enduring change in the Texas criminal justice system.
The landmark reforms to Texas indigent defense laws known as the Texas Fair Defense Act, were originally enacted in 2001 by the 77th Legislature. The Fair Defense Act was haled by a leading national expert as Athe most significant piece of indigent defense legislation passed by any state in the last twenty years.@ The Fair Defense Act not only mandated basic improvements in local procedures for appointing competent defense counsel to represent the poor, it also provided state funding to support indigent defense programs for the first time in Texas history. Over the rest of 2001 and 2002 significant indigent defense improvements were implemented both at the state level and in most of Texas’s 254 counties in response to the new law. However, there was resistance to the changes in some quarters. A number of local judges and county officials vowed to repeal the Fair Defense Act in the 78th Legislature when it convened in 2003, or at least to roll back certain key reforms. Moreover, with the state facing a $15 billion budget shortfall, funding for most state programs was on the legislative chopping block, especially funding for programs benefiting low-income Texans.
But as the 2003 session unfolded, no wholesale effort to repeal the law ever materialized. Many believe this was due to the extensive work by reform advocates prior to the session to broaden the consensus that indigent defense reform in Texas had been long overdue and that the reform process now underway is moving in the right direction. Advocates also made a strategic decision at the start of the session to concentrate on locking in the Fair Defense reforms enacted during the prior session rather than attempt any dramatic new improvements this year.
There were nevertheless serious legislative attempts this session to repeal certain specific reforms going to the heart of the Fair Defense Act. One such effort would have delayed the appointment of counsel for many weeks or months for those defendants who are released on bond. Currently the Fair Defense Act requires appointment of counsel within a few days after arrest. These proposals to delay appointment of counsel were turned aside by organized opposition from the Fair Defense Coalition which includes good government organizations, religious groups, civil rights organizations and criminal justice reform advocates. In addition Senator Rodney Ellis, an author of the original Fair Defense Act, played a pivotal role in defending the prompt appointment requirements. A unique contribution to the legislative debate on this issue also was made by a group of twelve criminal law scholars, from six of the state’s eight law schools, who joined in a statement by University of Texas Law Professor Robert Dawson pointing out that delay in appointment of counsel would violate constitutional requirements and result in costly inefficiencies.
The same alliance of fair defense advocates also turned back another challenge to a key Fair Defense Act reform—a bill that would have restored to judges the power to conscript unwilling attorneys and force them to represent indigent defendants.
State funding for indigent defense was actually was increased slightly by the 78th Legislature, even while other programs were being cut back. With help from key members of the Senate Finance and House Appropriations Committees, the Legislature preserved the existing state funding for indigent defense programs at $11.94 million per year. The Legislature also added an estimated $1.74 million per year for indigent defense through a new $65 attorney bar association fee that is designated for support of both civil legal assistance to the poor and state grants for pilot programs to improve indigent defense. Finally, the Legislature allocated additional funds for indigent defense through a new $5 fee on surety bonds. This surety bond fee is expected to raise $503,000 in fiscal year 2004 and $1.08 million in fiscal year 2005. Even with these increases, Texas counties will continue to bear approximately 90% of the funding burden for indigent defense services. However, these modest increases in indigent defense funding, in a budget cutting session, seem to reflect a welcome recognition that the state of Texas has under-funded indigent defense programs historically and still has a lot of catching-up to do.
The one disappointment related to indigent defense came late in the session, after the Senate passed a bill, authored by Senator Ellis, to improve the competence of attorneys appointed to represent death penalty defendants in habeas corpus proceedings. The House passed an amended version that stripped crucial improvements from the Senate bill and the bill then died in the waning days of the session when no acceptable compromise could be reached.
Given the new, more conservative composition of the 78th Legislature, its record on other issues affecting the poor, and the budget crisis that dominated the session, it is a substantial accomplishment to have preserved the integrity of the Fair Defense Act and increased indigent defense funding. Full implementation of the Fair Defense Act reforms remains an unfinished task—one that may take another five to ten years of persistent effort to complete. But now, having consolidated the state’s commitment to those reforms, we can return to that task with a new determination and a new assurance that the movement for indigent defense reform is alive and well in Texas.
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The Equal Justice Center is a non-profit legal action organization that advocates for the civil and economic rights of low-income families and communities. The EJC has helped lead the movement to reform and improve indigent defendant practices across the state of Texas.
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