FOR DECADES, TEXAS’ SYSTEM for providing attorneys to those who can’t afford them was an un-addressed problem. For advocates of the poor, there were no guarantees that the lawyers would give a flip about their clients. For the lawyers, it was likely that the pay would not be enough to keep the rent paid and the lights on. For the commissioners courts that paid the bills, there was no certainty of what the legal fees would total as well as suspicion that some judges played favorites and paid attorneys too well in exchange for personal or political favors.

But judges, who see it as their own responsibility to assure that an attorney is qualified to provide competent legal representation, didn’t really have a problem with the system, since they were in charge. In a system where judges have little say over the quality of their setting or support, selecting attorneys for the indigent was one of their few areas of say-so. So for years, when state legislators were asked to address reforms of the indigent defense system, judges routinely objected to the potential loss of control and the measures routinely were defeated.

But then a presidential campaign by then-Gov. George W. Bush focused attention on a situation in which a defendant whose courtappointed attorney appeared to fall asleep during the trial that resulted in a death penalty verdict. Texas was embarrassed and the legislative leadership decided it was time for a change.

The result was passage of Senate Bill 7, co-authored by Sen. Rodney Ellis and Rep. Juan Hinojosa. In particular, the New Fair Defense Act placed the burden of change upon those who are expected to know what’s best for the court system – the judges. In short order, judges were mandated to develop local plans that set deadlines for appointing attorneys, required judges to adopt new appointment procedures, required adoption of financial standards to determine indigency, mandated fee schedules and set aside money as incentives to improve local indigent defense practices. The verdict thus far is mixed. Tyler District Judge Diane DiVasto, who chaired the State Bar’s Judicial Section during the passage and initial implementation of the law, credits judges with a good faith response. “I’m proud of the significant hard work the judges are putting in to make this work,” DiVasto said.

Two legal advocacy groups that helped shape the new law, Texas Appleseed and the Equal Justice Center, emphasized the positive in issuing a detailed, 55-page analysis of local compliance plans in March. The report critiqued plans from 95 counties, covering 90 percent of the state’s population.

“The overall conclusions from our review are very positive. A vast majority of county plans appear to be the product of substantial thought and collaboration,” the groups stated up front. “Most officials seem to have made genuine efforts to meet the FDA’s many requirements in good faith. Their work is commendable, especially considering that prior to the FDA, each of Texas’ 800-plus criminal trial courts usually set its own indigent defense policies, and formalized policies were rare.”

By its nature, much of the rest of the report was more critical, exploring the areas that needed improvement, at least in the eyes of the advocates of the poor. They concluded that about a third of the plans were good or very good, another third were good but had a significant fault or two and the final third fell substantially short and deserved “individual attention” from the small state entity established to oversee compliance, the Task Force on Indigent Defense.

But Judge DiVasto and others say that on the whole, the system is not necessarily better.

“We feel like the quality of indigent defense was as good or better before the implementation of Senate Bill 7,” she said. “We don’t see right now that the quality of representation has improved – it leaves us with the same or less. We definitely need to continue the dialogue about how best the law can be implemented for Texas.”

Similar comments are heard from judges, prosecutors and commissioners court members who have monitored the implementation thus far. How the new game affects a particular county’s court system often depends on the county’s geographic location. In urban environments, there are often more attorneys than needed, and in rural counties, attorneys with a mind to handle criminal justice matters are few and far between.

Too much or too little talent
For the last 12 years, Danny Clancy has shown up almost daily at the Dallas Criminal Courts Building, first as a prosecutor, then as a defense attorney and for the last four years as a county court-at-law judge. As the current presiding county court judge, he’s had a hand in bringing the five Dallas county courts in compliance with the Fair Defense Act. The Dallas county courts established very minimal qualifications and put out a call for attorneys to sign up on a master list that would be used on a rotation. “Our list got as high as 380 lawyers, which would mean less than one appointment a year if we were calling them on a daily basis,” including many who had not been seen around the halls before, Clancy said.

“I think I know everyone down here, and quite honestly, I think I recognized about a quarter of the names on the list,” he said. “We had a lot of lawyers who were not familiar with the criminal justice system who were applying to be on our list just because they had heard that SB 7 passed and this might be an opportunity to make a little money on the side.”

The results, he said, were quite a few lawyers “who don’t know what they’re doing and they’re having a difficult time managing some cases because they don’t have the experience behind them.” To address the initial misstep, the Dallas county courts have substantially upgraded the minimal qualifications, including a new requirement that attorneys have at least five hours of continuing legal education in criminal matters.

Clancy and the other court-at-law judges also assign attorneys from the county’s public defender office while maintaining their discretion to appoint from the master list.

“Mine is a typical court where we have one public defender who I’ll appoint on a number of cases and in a number of other cases, I’ll appoint outside counsel,” he said.

Why appoint from the list instead of relying on the lower-cost public defenders? Clancy cited his own experience in private practice. “As a young lawyer struggling to survive, (indigent appointments) were an important point of my practice,” he said. “It’s obviously very important to a lot of lawyers who depend on appointments to survive.” Clancy described the reaction to the law by most Dallas judges as “grudging acceptance.”

“We’ve done our best to be in compliance with the new law. It has been difficult,” Clancy said. “It’s a work in progress, no doubt about that. ”

Not enough to go around
In Tyler, Judge DiVasto said she hears from courts around the state that many attorneys who used to take appointments haven’t signed up. “A lot of the more experienced attorneys – the ones who did a lot of it because they knew it was their responsibility – are not applying. They’re not there anymore,” she said. “It creates a kind of void in the experience level we had before.”

DiVasto said many of the old regulars were more likely to take appointments when a case addressed particular specialties they had developed, but they are less enthused about taking the next case that the system assigns. “They don’t want to be on a rotation,” she said. “The regularity of it discourages them.”

Jim Bethke, director of the state’s oversight Task Force, keeps his fingers on the pulse of how the Fair Defense Act is playing out. Scarcity of qualified attorneys is the problem outside the cities, he said. “In rural areas, anecdotal evidence is that judges are saying that they don’t have as many attorneys on the list,” Bethke said. He noted that the new arrangement not only requires attorneys to take the step of signing up to be on the list of possible appointees, attorneys now must comply with the law’s new mandate to make contact with assigned clients within one working day of the appointment, as well as other mandates of the new law.

Some solutions play both ways
One of the reform movement’s efforts to ensure that attorneys are capable of doing the job well is cutting both ways.

On the one hand, the state’s Task Force is considering a requirement that criminal defense lawyers get at least six hours a year in specific criminal or juvenile training to be eligible for placement on a rotation list. But such an obligation is likely to discourage general practice rural attorneys, who may typically concentrate on handling wills and contracts, from seeking the training. Travel, lodging and registration fees at a big city legal seminar could cost as much as $1,500 to $2,000.

To address the cost, the Task Force has initiated a series of regional criminal justice training sessions that are available at a rate of $65 for a day and a half. The varied locations around the state – Midland, Tyler and Kerrville, so far – affords many attorneys the opportunity to drive and return home without an overnight stay.

Similarly, Bethke reported that as a result of another grant, attorneys in Loving, Reeves and Ward counties get their continuing legal education costs paid if they promise to take appointments in those three counties.

Malfunction at the Junction
In many counties, when the officer hands off the defendant to the courts, the Fair Defense Act drops the ball.

In the glory days of the old Southwest Conference, a fumble between a quarterback and running back would prompt radio announcer Kern Tips to shout that there’d been a “malfunction at the junction.” Today, the term pretty well describes a common problem created by the new Fair Defense Act’s imprecise requirement that would-be indigent defendants be offered free legal counsel as soon as “adversarial judicial proceedings” begin. When defendants are passed by law enforcement on to the judiciary, the new law bungles the handoff.

In Sweetwater, Nolan County Attorney Lisa Peterson says the new setup is resulting in attorneys being appointed in cases that never get filed, a problem common to many counties according to prosecutors.

“Attorneys are being appointed in some cases before I’ve had a chance to decide whether I’m going to take a case,” she said. “The client gets notified of the attorney and then the attorney gets notified that he has a client and makes contact with the client within 24 hours, but there may never be a case filed because I’ve rejected it for lack of probable cause on the traffic stop. But the defense attorney generates a bill to the commissioners court because he’s already put time into it.”

Although Texas law typically assigns roles and responsibilities among the various players in the criminal justice system, legislative details of the Fair Defense Act were worked out primarily by advocates for judges, defense attorneys and the indigent defendants, without much direct involvement by prosecutors and law enforcement. Among the results is a lack of communication that leads to unnecessary legal bills on the county’s tab.

Colorado County District Attorney Ken Sparks explained how the new system works – or doesn’t – in various counties. . “The case comes to me and I say, ‘there’s not enough evidence here,’ so I decline it, but there’s this lawyer out there running up a bill who doesn’t know it’s been declined, but I don’t know to let him know that it’s been declined because I don’t know who’s the lawyer on the case,” he said. “Our small county doesn’t have a half million dollars to install some countywide computer system to keep us all updated. We’re still hard copy.”

Peterson in Sweetwater said she has been contacted by jail inmates who want to know how to fire their court-appointed attorney so that they can get out of jail. She said that defendants become aware that their time served awaiting trial – which is on hold until the defense attorney and Peterson can find time on their schedules to negotiate the case – is probably exceeding the likely sentence they’ll be expected to serve.

The needless appointments do not occur in all counties. They appear to occur most often in counties in which the judges have interpreted the new statute to offer appointment of indigent defense counsel following the first hearing in which the defendant faces a judge – the magistration hearing mandated by Article 15.17 of the Code of Criminal Procedure. That’s the hearing at which the defendant is formally informed of his constitutional rights. Later, an arraignment hearing is conducted, where the defendant may be formally charged with an offense and must make a plea of guilt or innocence.

The new law says that an attorney must be appointed to an indigent defendant upon receipt of an application and within three working days (or within only one working day in counties with populations greater than 250,000 population), “if adversarial judicial proceedings have been initiated.” What’s unclear in the new law is whether “adversarial judicial proceedings” refers to the Article 15.17 magistration or the late arraignment.

Arguing in favor of the first proceeding are advocates of the defendants such as Texas Appleseed and the Equal Justice Center. These organizations issued a joint report in March that critiqued the initial compliance plans that local judges have adopted. They urged that the state’s Task Force on Indigent Defense provide guidance in the direction of requiring the offering of an attorney at the earlier hearing.

“Even when plans do not plainly misapply the FDA’s ‘adversarial judicial proceedings’ language to jailed defendants, they often condition appointments on the commencement of “adversarial judicial proceedings” without defining this term. This absence of a definition is certain to cause great confusion in the administration of these plans and unconstitutional delay,” the two organizations concluded.

They cite prior rulings of federal constitutional law as proof that “adversarial judicial proceedings” begin at the Article 15.17 magistration but acknowledge that some Texas cases have indicated otherwise. “Dicta (pronouncements) in a few cases incorrectly suggest that adversarial judicial proceedings do not begin in Texas until a prosecutor files an indictment against a defendant, even though this may take up to six months after the Article 15 hearing,” they wrote. “Judges of Texas’s Court of Criminal Appeals have written that authorities conflict and the legal questions remain open.”

Jim Bethke, executive director of the Task Force on Indigent Defense, said there is no “bright line rule” on the issue thus far.

“The advocacy groups would rather (the appointment process) be triggered at the 15.17 hearing while others would say, no, that’s too early, it should be at the arraignment,” Bethke said. “I think that many more courts are actually appointing at the 15.17 hearing, which gets the attorney into the process arguably earlier than is legislatively required.”

He noted that the issue becomes less of a problem in jurisdictions such as Harris County, where the district attorney has long required that peace officers submit their offense reports prior to the magistration hearing. In the so-called “direct filing” approach, the prosecutor decides up front whether a complaint will be filed.

“If it’s not a good case, get them (defendants) out of there,” he said. The general counsel for the County Judges and Commissioners Association said he interprets the statute’s intention to say that the oneor three-day clock does not begin running at the magistration hearing if the defendant is released on bail or personal recognizance.

“To me it’s clear that what they intended was, you get your right to counsel upon completion of the application and remaining in custody, or until that point in time when the application is completed and returning for the first adversarial proceeding, whenever you come back – postindictment on a felony or at docket call for a misdemeanor,” said Austin attorney Jim Allison. “I feel pretty strongly that there is not the pressing need to appoint counsel for persons who are not in custody. It is a significant cost factor, because it leads to considerably earlier and more frequent appointment of counsel for cases that have not progressed in the process when the defendant is not in custody.”

Allison said prosecutors have said that as many as 30 percent of cases are not pursued due to lack of evidence or other problems. He thinks the Legislature should clarify the law. “We’re really not performing any service for a person in custody if their appointed attorney actually delays the case.” In urban counties, complying with the new law is complicated by the state’s mandate that an attorney be appointed to an indigent defendant upon receipt of an application and within one working day “if adversarial judicial proceedings have been initiated,” instead of the three days required in counties of less than 250,000.

John Dahill of the Conference of Urban Counties said the larger counties told lawmakers that they need the same latitude that other counties have. “When we asked (legislators why there was a different timeframe), we were told that it’s (the legislators’) perception that we have the resources to get it done in one day and other counties don’t,” he said. “Well, that’s not really a valid reason to require the taxpayers of larger counties to foot the bill.” He said the larger counties intend to request that the threeworking- day requirement be the statewide standard.

“If we can get that (change) along with not having to appoint counsel for those people who are not in jail, and charges have not been filed, until they show up for court appearance, that would save a tremendous amount of money,” he said. “Most people who bond out are going to do so within a three day period, and if we don’t have to appoint those lawyers until they show up in court, we will not be appointing lawyers in situations where no charges are filed.”

Tarrant County Commissioner Glen Whitley, a member of the state’s Task Force on Indigent Defense, said the one-working day rule that applies in urban counties is difficult for the courts and counties to comply with, especially since the law does not apply pressure on law enforce-ment agencies to comply.

“Such a short time frame puts all the pressure on the county, with no hammer over the cities that arrest the prisoners,” Whitley said. “We can’t control the cities and how quickly they get the information to the DAs.”

The other commissioners court appointee to the Task Force, Bell County Judge Jon Burrows, said he has heard a number of complaints about the one-working-day rule that applies to urban counties. “I’m not sure how much a defendant is helped with the two additional days,” Burrows said. “Process-wise and logistics-wise, one day (to get an attorney appointed) is a pretty onerous burden.”

State Spends More; So Do Counties
Until the Fair Defense Act was passed, 49th in the country was where the state of Texas ranked when it came to financial support for attorneys who represent indigent clients. With the inclusion of a small grant program in the new law, the state’s standing soared to somewhere in the low 40s on the national scale.

Many states pay between 50 and 100 percent of indigent defense costs, according to a report by the Texas House Research Organization. While it has been estimated that counties ponied up $93 million to pay for indigent defense in 1999, early estimates of the newly mandated expenses have ranged as high as $30 million. Two-year funding for the new law is $19.7 million.

Lawmakers dedicated 13.98 percent of its consolidated criminal court costs to create a fund to support the increased mandates. In the first partial year that the Fair Defense Act took effect (FY 2002), the state sent $7.2 million to counties to pay for the additional burdens and complications imposed by the new law. Formula payments for FY 2003 are expected to total $9.6 million, and $1.6 million in discretionary grants are to be considered by the Task Force on Indigent Defense in December of this year. The Task Force was scheduled to report the past year’s county expenditures in early November.

Calculation of how much the Fair Defense Act costs an individual county is not as simple as checking how much was paid to attorneys. The far-reaching reform measure required numerous changes in the way the criminal justice system works. Take Dallas County, for example. Its payments to attorneys increased from $6.7 million in FY 2001 to just over $7 million in FY 2002. But about 35-40 percent of indigent representation in Dallas is handled by its public defenders office. To handle the workload, Dallas County hired four additional public defenders, increasing the agency’s usual quarter-million dollar budget by $250,000. But that’s not all. In addition, the county hired five additional sheriff’s deputies to guard prisoners on the new bus runs that the county must make to the 26 municipal police stations around the county. That $350,000 expense was mandated by the new early appointment deadlines mandated by the statutes.

On top of those expenses was $100,000 for three additional district clerk employees who were hired to assure timely creation of misdemeanor court files so that attorneys could be appointed on time.

Tarrant County Commissioner Glen Whitley, a member of the state’s Task Force on Indigent Defense, said that he’s picking up information around the state that defendants are spending more time in jail. “It may be that they’re getting fairer representation, but from all accounts that we hear, they’re staying in jail longer.” In Athens, Henderson County Sheriff Ronnie Brownlow said that in the past, inmates who were magistrated had one focus: to get out of jail as fast as possible.

“Now, when they’re informed they can get an attorney, they realize, ‘it ain’t going to cost me anything so I might as well get an attorney.’ But most of these people are not rocket scientists to begin with, so they think the attorney will get them out,” Brownlow said. “Two or three days down the road, they realize that it’s not that simple, so they start working their way back to get a bondsman.”

The result, he said, is more expense in the county’s jail.

Also, more attorneys are being appointed in misdemeanor cases because of the law’s requirement that magistrates must not only inform defendants of their right to legal representation but also must assist the defendant in completing the affidavit of indigency. Shelby County Sheriff James Moore explained the diference in his county..

“Before, we’d go back in the jail and read them their rights and if they wanted to have an attorney, they got an attorney. But most of the time, we’d talk to them about their case and they’d say, ‘Yeah, I done it and I’d like to head over to the court and make my plea and get out of here,’” Moore said. “We’d take them to court and get it disposed of and he’d be out of here and I’d have another jail bed available.”

Now, the early notification of the availability of an attorney is prompting many to take up the offer, even though they’ll eventually plead guilty, he said.

Jim Allison, general counsel to the County Judges and Commissioners Association, said he has heard anecdotal reports that as much as half of the increased costs is the result of judges approving higher rates of compensation for the appointed attorneys. Higher pay for the lawyers was not required by the law, but many courts enacted increased pay to make sure that attorneys applied for the cases. In many counties, legal fees had not been increased since 1987, when the Legislature heeded commissioners courts’ request that judges be required to publish a fee schedule for indigency cases.

In September, Allison’s association adopted a resolution asking that the Legislature either compensate counties for the full cost of the new law or repeal it.

At the Conference of Urban Counties, attorney John Dahill said lawmakers should consider authorizing commissioners courts to establish public defender systems to control costs.

“If they’re not going to more fully support it with dollars, then perhaps they should grant the folks who go to the taxpayers for money with