Bills that Strengthen the Indigent Defense System
This spring saw the continuation of a long-time movement toward a more fair and just indigent defense system in Texas, strengthening and continuing previous reforms. See the article in this newsletter by Jim Bethke, Director of the Task Force on Indigent Defense, and Wesley Shackelford, Special Counsel to the Task Force on Indigent Defense. They outline legislative reforms championed by TCJC’s Fair Defense Project, the Texas Fair Defense Campaign, and our many allies who’ve worked on this issue for years, including on these bills:
1. HB 1266 by Pena, Relating to the standards for attorneys representing indigent defendants in capital cases.
Analysis: Modifies statutory qualification requirements for attorneys appointed to represent defendants in capital cases, primarily by creating separate qualification requirements for appellate attorneys and eliminating current requirements that appellate attorneys have capital trial experience.
2. HB 1267 by Pena, Relating to the compensation of counsel appointed to defend an indigent defendant in a criminal proceeding.
Analysis: Grants appointed defense counsel the right to appeal a judge’s failure to act on a request for payment within 60 days.
Note: Under current law, appointed counsel can appeal a judge’s disapproval of a request for payment but not a judge’s failure to act on a request for payment.
3. HB 1406 by Flores | et al. Relating to the State Bar of Texas fee to provide legal services to the indigent.
Analysis: Eliminates the scheduled 2007 sunset of the State Bar legal services fee, half of which is allocated to indigent defense.
Note: The State Bar fee generated almost $2 million for indigent defense in FY 2006. Revenue from the State Bar fee is earmarked for demonstration and pilot programs and to date has been used to fund six new public defender offices in Texas.
4. SB 159 by Wentworth, Relating to a local public defender's office that represents indigent defendants in criminal cases.
Analysis: Modifies the public defender statute to allow counties to open public defender offices as internal departments without seeking bids from nonprofit corporations interested in operating the office under contract with the county. Counties choosing to operate a public defender office as an internal department still would be required to develop written plans containing the same information required under the existing bid system, and counties choosing to provide indigent defense services through a nonprofit public defender still would be required to solicit bids from interested nonprofits.
5. HB 1178 by Escobar and McClendon, Relating to procedures applicable to waivers of the right to counsel in certain adversary judicial proceedings.
Analysis: Requires judges to advise defendants of the right to counsel and to give defendants a reasonable opportunity to request appointed counsel to ensure that waivers are knowing and voluntary. Also prohibits prosecutors from violating ethical rules by initiating or encouraging waivers of the right to counsel.
Analysis: Makes minor changes relating to meeting requirements and definitions in the statute governing the operations of the Task Force on Indigent Defense.
7. SB 1655 by Ellis and Duncan, Relating to the establishment of the capital writs committee of the Texas Judicial Council and the creation of the office of capital writs.
Analysis: Creates an Office of Capital Writs to represent indigent defendants sentenced to death in state habeas corpus proceedings.
8. SB 1557 by Hinojosa, Relating to the appointment of an attorney to represent an indigent defendant who is in the custody of a correctional facility of TDCJ.
Analysis: Provides that appointment of private counsel to indigent inmates in criminal cases involving alleged offenses committed while in the custody of TDCJ shall be governed by the Fair Defense Act.
Specifically, counties shall pay appointed counsel for services provided to indigent inmates according the local indigent defense fee schedule, and the Comptroller shall reimburse counties for the cost of inmate indigent defense within 60 days after receiving a request for reimbursement. Under current law, counties with TDCJ facilities pay the first $250 incurred in the defense of cases involving indigent inmates, and attorneys seek reimbursement for excess expenses directly from a limited fund maintained by the Comptroller.