Ten Things You Need to Know about the Texas Fair Defense Law

This is the first of a two part series. In this part, I will address the legislative and judicial requirements of the Fair Defense Law. In part two, I will cover any changes made by the 82nd Legislature to the Fair Defense Law and address the Performance Guidelines for Non-Capital Criminal Defense Representation adopted by the State Bar’s Board of Directors on January 28, 2011.i

This year marks the ten year anniversary of the passage of the Fair Defense Law. This law established the Texas Task Force on Indigent Defense (Task Force)ii as a permanent standing committee of the Texas Judicial Council, staffed as a component of the Office of Court Administration. The Task Force and its staff provide funding through grants and offer technical assistance to develop cost-effective indigent defense systems. A primary purpose of the Task Force is to assist local government to develop cost-effective indigent defense that meets the needs of the local community and complies with State and constitutional law. To promote best practices, transparency, and accountability, the Task Force serves as a clearinghouse of indigent defense information via its website. The judiciary, the legislature, and the public have access to all county plans, expenditures, guides, model forms, rules, publications, e-newsletters, trainings, and press releases. Visit the Task Force website at www.txcourts.gov/tfid for more information.

The following is a summary of some of the key provisions of the Fair Defense Law:

Magistrate Responsibilities: The magistrate is required to admonish the accused of his constitutional rights and set bail.iii In addition, the magistrate must: 1) inform the accused of the right to appointed counsel if the person cannot afford counsel and the procedures for requesting appointment of counsel; 2) inquire as to whether accused is requesting that counsel be appointed; and 3) provide accused persons requesting appointed counsel with necessary forms for requesting appointment of counsel and ensure that reasonable assistance in completing required forms is provided to the accused at the time of the magistrate’s hearing.iv The magistrate is also required to record the following: 1) the date and time the accused was arrested and the date and time when he/she was brought before the magistrate; 2) whether the magistrate informed the accused of the right to request appointment of counsel and asked the accused whether he/she wants to request counsel; and 3) whether the accused requested appointment of counsel.v

Indigence Determination and Consideration of Bail. The defendant’s ability to post bail may NOT be considered apart from the defendant’s actual financial circumstances (i.e., the defendant’s income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant).vi A court may not threaten to arrest or incarcerate a person solely because the person requests the assistance of counsel.vii The local indigent defense plan, which is discussed in more detail below, must include financial standards for determining whether a defendant is eligible to receive appointed counsel. “Indigent” means a person who is not financially able to employ counsel. Every effort should be made to follow the indigence standard in the applicable local plan.

Waiver of Counsel Provisions.viii In 2007, the Texas Legislature promulgated procedures for obtaining waivers of the right to counsel from defendants. It also imposed limits on when prosecutors may speak with unrepresented defendants and when judges may direct such defendants to speak with prosecutors. Under the law a judge or magistrate may not order a defendant rearrested or require another, higher bond because a defendant withdraws a waiver of counsel or requests the assistance of counsel.

Time-frames for appointment of counsel. The judge (or designee) must rule on requests for counsel and appoint counsel to indigent defendants within one working day of receiving requests in counties of 250,000 or more or three working days in counties of less than 250,000.ix Persons out of custody: counsel must be appointed at defendant's first court appearance or when adversarial judicial proceedings are initiated, whichever comes first.x

Attorney Selection Methodology. The local indigent defense plan must include the method by which attorneys on the appointment lists are assigned to cases. For example, in many counties the plan provides that judges will make appointments in rotation order from the appointment list. Every effort should be made to follow the applicable local plan.xi

Attorneys Fees. All court appointed attorney fees must be paid in accordance with a schedule of fees adopted by formal action of the local judges.xii If a judge disapproves an attorney’s fee request, the judge must make written findings stating the amount approved and the reason for disapproving the requested amount. The attorney may appeal to the presiding judge of the administrative judicial region.xiii

Experts and Investigators. The law requires reimbursement of expert and investigative expenses with and without prior court approval if they are reasonably necessary and reasonably incurred.xiv

Indigent Defense Expenditure Report (IDER). The Government Code requires that all Texas counties report amounts spent on attorney fees, licensed investigators, expert witnesses, and other direct litigation costs.xv The Task Force allows counties to capture and report the administrative costs directly associated with providing indigent defense in the county. A comprehensive set of instructions and definitions is provided in Procedure Manual for the Indigent Defense Expenditure Report.xvi

Adult Local Plan Report. The Government Code also requires that each county submit its countywide indigent defense plan, procedures and forms on how it will provide court appointed counsel to eligible persons.xvii These reports must be submitted to the Office of Court Administration of the Texas Judicial System by November 1 of odd-numbered years. Under the Fair Defense Law, the criminal court judges and juvenile board in each county must adopt and publish county-wide indigent defense plans.xviii

Juvenile Appointment of Counsel Plan Report. The juvenile board in each county shall adopt a plan and submit that plan to the Task Force that specifies the qualifications necessary for an attorney to be included on the appointment list to represent children in proceedings under Title III of the Juvenile Justice Code.xix

Before this legislation passed in 2001, there was no state funding, no reporting requirements, no oversight, no state support, and no requirement that an attorney be versed in criminal or juvenile law to receive appointments.xx The level of services provided to the poor charged with criminal offenses varied wildly across the state. With the passage of this law, the policies adopted by all levels courts, the efforts of local judicial and county officials, the defense community, the work of state county associations, the work of the Task Force and staff, the State Bar, and public interest groups like the Texas Criminal Justice Coalition, the Fair Defense Project, those accused of criminal misconduct in Texas unable to afford counsel are treated more fairly and effectively as a whole than they were prior to the passage of the Fair Defense Law.xxi

Click here to read the Fair Defense Law Codified.

Jim Bethke Written by Jim Bethke
Task Force on Indigent Defense

iThe 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 that were adopted by the Bar in 2006. 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. Available at: http://www.texasbar.com ii The Task Force is a body of thirteen appointed and ex-officio members. See, URL: http://www.courts.state.tx.us/tfid/members_of_the_task_force.asp iii Tex. Code Crim. Proc. § 15.17 (a) iv Tex. Code Crim. Proc. § 15.17 (a) v Tex. Code Crim. Proc. § 15.17 (e)-(f), when my staff conducts a monitoring visit in a particular county, it is not uncommon to discover that this requirement is overlooked by the magistrate. vi Tex. Code Crim. Proc. § 26.04 (l)-(m) vii Tex. Code Crim. Proc. § 26.04 (r) viii Tex. Code Crim. Proc. § 1.051 (f), an overview of the changes (URL: http://www.txcourts.gov/tfid/pdf/HB1178overviewwaiverofcounsel.pdf) And flowcharts depicting the steps in the process are available (URL: http://www.txcourts.gov/tfid/pdf/HB1178waiverofcounselflowchart.pdf) ix Tex. Code Crim. Proc. § 1.051(i) x Tex. Code Crim. Proc. § 1.051(j); see also, Rothgery v. Gillespie County, 128 S. Ct. 2578 (2008) See, U.S. Supreme Court Decision on Rothgery – What Does It Mean? available at http://www.courts.state.tx.us/tfid/videos.asp xiThe Honorable Dib Waldrip, District Judge, Comal County Key Points on Indigent Defense Plans available at http://www.courts.state.tx.us/tfid/videos2.htm xiiTex. Code Crim. Proc. § 26.05 (b) xiiiTex. Code Crim. Proc. § 26.05 (c) xivTex. Code Crim. Proc. § 26.05 (d) xvTex. Gov’t Code § 71.0351(e) xviA copy of the electronic manual available at: http://www.courts.state.tx.us/tfid/pdf/FY10IDERManualFinal.pdf Copies of the IDER are posted on the data website of the Task Force at: http://tfid.tamu.edu xviiTex. Gov’t Code § 71.0351(a) (1) xviii Tex. Gov’t Code § 71.0351(a) (1) Copies of the local plan should be available locally and also on the data website of the Task Force at: http://tfid.tamu.edu xixTex. Gov’t Code § 71.0351(a), (d) and A Joint Report by the Task Force on Indigent Defense and the Texas Juvenile Probation Commission Indigent Defense in the Texas Juvenile Justice System (June 2007) available at http://www.courts.state.tx.us/tfid/resourcesresearchstudies.asp. Copies of the juvenile board plan should be available locally and also on the data website of the Task Force at: http://tfid.tamu.edu. xx Texas Appleseed Fair Defense Project, The Fair Defense Report: Findings and Recommendations on Indigent Defense Practices in Texas(December 2000) available at http://www.texasappleseed.net/pdf/projects_fairDefense_fairreport.pdf xxi Michael K. Moore, Allan K. Butcher, Catherine Greene Burnett, Examining the Impact of Criminal Defense Reform in Texas: Has the Fair Defense Been Effective? (March 2005) available at http://www.courts.state.tx.us/tfid/pdf/ButcherMooreSPWSA05.pdf See also, Senate Committee on Criminal Justice, Interim Report, pages 27-33, December 2010 available at: http://www.courts.state.tx.us/tfid/82interimsenate.asp