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Changes to the Texas Fair Defense Law and the New Attorney Performance Guidelines

Changes to the Texas Fair Defense Lat

 This is the second of a two part series. In the last article, I discussed some of the key provisions of the Fair Defense Act and the purpose of the Task Force on Indigent Defense. In this part, I will highlight key changes made by the 82nd Legislature to the Texas Fair Defense Law and address the value and purpose of the Performance Guidelines for Non-Capital Criminal Defense Representation adopted by the State Bar’s Board of Directors on January 28, 2011.i

During the 82nd Legislature’s Regular Session, funding for indigent defense was cut by 15 percent or approximately $8.6 million in grants to counties were eliminated. In addition, the administrative operating budget was reduced by approximately $90,000 a year including the elimination of one or possibly two staff positions. Fortunately, the Legislature restored the funding for indigent defense grants and the administrative budget during the First Called Special Session. The Legislature also continued to fund innocence projects at the four public law schools at $320,000 each year of the biennium ($80,000/school), while also providing funding for one staff person to administer and coordinate the work of the innocence projects.

 The omnibus indigent defense for this session was HB 1754 by Gallego. This bill reconstituted the Task Force on Indigent Defense (Task Force) as the Texas Indigent Defense Commission (Commission). The duties, responsibilities, members, and staffof the Task Force were all transferred to the Commission. The Commission remains administratively attached to the Office of Court Administration. However, the Commission was granted authority to submit its legislative appropriation request separate and apart from the Office of Court Administration (OCA). This change was needed and benefits both OCA and the Commission.  The OCA can seek the funding it needs to theeffectively serve the courts of this State and administer its statutory responsibilities and the Commission can theeffectively present its case for indigent defense funding for these services without having to compete head-on with OCA for funding. Additionally, this legislation streamlined the process to create a public defender office. It also provides the statutory framework on how to establish a managed assigned counsel program—a new defense delivery system that employs the private bar but requires quality controls lacking in a traditional ad hoc assigned counsel program.

Next, SB 1681 by Ellis clarifies that the Fair Defense Act applies to attorney appointments for probation revocations and appeals, specifies procedures for withdrawal of trial counsel and appointment of appellate counsel, and authorizes any magistrate to provide warnings on rights to defendants arrested for motions to revoke probation.

A past recommendation of the Task Force also passed this session in SB 1308 by Seliger. This legislation allows the local selection committee in each administrative judicial region to review an attorney’s current ability to provide effective representation when the attorney is no longer eligible to represent indigent defendants in capital cases due to a single finding of ineffective assistance of counsel.

More detailed summaries of the above bills and a complete listing of all bills passed related to indigent defense are available on the Commission’s legislative information page.

In addition to these legislative changes another recent significant development relating to the representation of persons charged with criminal offenses was the promulgation of the Performance Guidelines for Non-Capital Criminal Defense Representation Guidelines (the Guidelines).ii These Guidelines like the Guidelines and Standards for Texas Capital Counseliii are intended to serve several purposes. The first is to encourage defense counsel to perform to a high standard of professionalism when representing an indigent person charged with a crime.iv They are also intended to alert counsel of possible courses of action and strategies. Moreover, the Guidelines may be used to provide a measure by which the performance of counsel may be evaluated and to assist in the training and supervising of counsel. The newly formed Harris County Public Defender has incorporated these Guidelines into its office procedures manual. It is likely other public defender offices and jurisdictions that supervise counselv to some degree will do the same. A number of counties have linked to the Guidelines.

Note, however, “[t]he Guidelines are not criteria for the judicial evaluation of alleged misconduct of defense counsel to determine the validity of a convictions. The Guidelines may or may not be relevant to such judicial determination, depending upon all of the circumstances of the individual case.”vi

The Guidelines are easy to understand, thorough, and in many instances a step-by-step guide on what should be done in a particular situation. The principal draftersvii of the Guidelines identify a multitude of ways that the Guidelines can be applied by both defense counsel and judges who want to improve the delivery of indigent defense services in their respective jurisdictions. Examples of how defense attorneys can use the Guidelines include: 1) a personal checklist of process steps for attorneys at level of experience; 2) a tool to train new criminal defense attorneys; 3) a tool for self-evaluation; 4) an objective tool for the internal evaluation of attorneys in public defender offices and managed assigned counsel programs; 5) a tool to advocate for additional resources; and, 6) possibly a persuasive tool to argue that the client did not receive effective assistance of counsel. Examples of how judges can use the Guidelines include: 1) a means to supplement the experience-based attorney qualifications; 2) incorporate into the county indigent defense plan; 3) post on county website and require all attorneys who take appointments verify annually as part of the application process that have read and are familiar with the Guidelines; and, 4) as a reference guide for setting compensation levels.viii

 The promulgation of these Guidelines is a constructive step by the State Bar of Texas in demonstrating its commitment to support defense lawyers, the Fair Defense Law, and Gideon.ix The requirements of the Fair Defense Law and the promise of Gideon go unfulfilled without capable, skilled, and committed counsel for the defense. The Guidelines should prove to be a worthy companion for the defense.


Jim Bethke Written by Jim Bethke
Director,
Task Force on Indigent Defense


iThe Non-Capital Guidelines were developed by the Bar’s Committee on Legal Services to the Poor in Criminal Matters as a follow up/companion to the Guidelines and Standards for Texas Capital Counsel. Like the Capital Guidelines, the Non-Capital Guidelines were developed using as models similar guidelines published by national organizations and adopted in other states, and then were amended to better reflect Texas practice and in response to stakeholder comments. These are available at: http://www.texasbar.com and were published in 74 Tex. B. J. 616 (2011). iiId. iii The Guidelines and Standards for Texas Capital Counsel were also developed by the Bar’s Committee on Legal Services to the Poor in Criminal Matters. and adopted by the Bar in 2006. THe Capital Guidelines and Standards were adopted April 21, 2006, by the Board of Directors of the State Bar of Texas. These are available at: http://www.texasbar.com and were published in 69 Tex. B. J. 966 (2006). iv74 Tex. B. J. 616, 620 (2011). v Id. vi Id. viiJeff Blackburn and Andrea Marsh were the principal drafters of the Guidelines. Mr. Blackburn is the chair of the State Bar Committee on Legal Services to the Poor in Criminal Matters. Ms. Marsh chaired the subcommittee that drafted the Guidelines. Mr. Blackburn is a criminal defense and civil rights lawyer. In 2009, he represented the family of Timothy Cole, a young man falsely accused of rape who died in prison, and got the first posthumous exoneration in Texas. He has received the Frank Spurlock award, the Henry B. Gonzales award, and the Maury Maverick award for his civil rights work. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. Ms. Marsh serves as the executive director of the Texas Fair Defense Project. Her organization works to improve the fairness and accuracy of the criminal justice system in Texas, with a primary focus on improving access to counsel and the quality of representation provided to poor people accused of crime. She was recognized by Texas Lawyer Magazine as one of 30 Extraordinary Women in Texas Law in September 2008 and received the Texas Law Fellowships 2009 Excellence in Public Interest Award. viii74 Tex. B. J. 616, 617-618 (2011). ix372 U.S. 335 (1963).