Ten Years Beyond the Texas Fair Defense Act SENATOR RODNEY ELLIS Legislative History First proposed in 1991. Passed and vetoed in 1999. Passed and signed in 2001 (following George W. Bush presidential run) 1999 vs. 2001 76 (R) SB 247 77 (R) SB 7 Vetoed by Governor Bush - Veto Signed by Governor Perry statement states that judges are in a better position to assess quality of council and the bill decreased public safety by mandating the release of a defendant if he/she has not been assigned counsel after 20 days of requesting one. Sen. Ellis serves as chair of the Senate Sen. Ellis serves as chair of powerful Jurisprudence committee Senate Finance Committee. SB 247 has one democratic co-author. Required release of defendant after 20 days if the defendant had requested a lawyer and had not yet received one. Did not require judicial buy-in of public defender offices. None Required counties to develop a written indigent defense system. Tulia had occurred in July 1999. Forty-six people were arrested in Tulia, TX after a drug sting. Forty of those arrested were poor and black. SB 7 has 16 bi-partisan co-authors. Sets timeline for appointment of counsel 3-1 days, but does not require release. Requires the county get written approval from a county court judge. Established the Task Force on Indigent Defense Laid out what methods of indigent defense delivery could be utilized. Page 1 of 9
What SB 7 Does Requires all criminal courts in Texas to adopt formal procedures for providing appointed lawyers to indigent defendants. These procedures must be consistent in all courts of the same jurisdiction within any particular county (e.g., all district (felony) courts in a county must adopt consistent procedures), and counties may adopt unified procedures that apply to all criminal courts (felony and misdemeanor) in a county. Although the FDA gives local officials significant flexibility in establishing their indigent defense plans, every plan is required to meet minimum statewide standards and/or specify local procedures in the following areas: Prompt appointment of defense counsel Methods for selecting defense lawyers eligible to receive court appointments, including qualification standards Methods for selecting defense lawyers for appointment in specific cases Methods for determining defendant eligibility for appointment of counsel (indigence standards) Fee schedules for payment of appointed defense lawyers Compensation procedures for experts and investigators in cases involving indigent defendants The FDA also created a new state indigent defense commission, the Task Force on Indigent Defense (now called the Texas Indigent Defense Commission), to oversee the implementation of the FDA and administer a new state program for awarding indigent defense grants to counties. Finally, to help fund the reforms required by the FDA, in 2001 the Texas Legislature appropriated the first-ever state funding for indigent defense at that time, approximately $12 million per year to supplement county spending, which then totaled approximately $94 million per year. Funding Streams Formula grants. The Commission distributes funds to counties through its population-based Formula Grant Program and provides funding that must be used to improve counties indigent defense systems. The funds are allocated by Page 2 of 9
Direct disbursements. The Direct Disbursement grant category gives small counties that have low incidences of crime and low indigent defense costs a way, if needed, to receive funding apart from applying for a Formula Grant. Small counties often do not have sufficient indigent defense expenses to earn grant funds using the formula grant methodology. Two-thirds of the funds that would have been allocated to counties that do not apply for a formula grant are budgeted for direct disbursement. If a county has indigent defense expenses above its baseline year amount, that county is eligible to receive funding based on requirements set by the Commission, subject to availability of funds. Equalization disbursements. The equalization disbursement provides additional state payments to counties with the lowest percentage of state disbursements compared to overall increased indigent defense costs. While the population-based Formula Grant Program and Direct Disbursement Program ensure that some funds are available to every Texas County, the equalization disbursement policy distributes based on the percentage of increased costs. In FY 2010 the Task Force on Indigent Defense (now the Texas Indigent Defense Commission) awarded $12 million in funding to 99 counties that had less than a 25.86% rate of state disbursement compared to indigent defense expenditures. This funding strategy is used when budget conditions are favorable without adversely affecting other funding methods. The Commission encourages counties to use this money to help pay for something on their indigent defense wish list, a project or plan that may have remained unrealized without this extra funding. Disbursement of this fund is subject to the availability of funds. Discretionary grants. Discretionary grants are awarded on a competitive basis to assist counties to develop new, innovative programs or processes to improve the delivery of indigent defense services. A county can apply for a single-year or a multi-year grant. Single-year grants pay up to 100% of an awarded activity on a reimbursement basis. Multi-year grants require a cash match, and funding for a grant project is available for up to four years. Applications for discretionary grants are reviewed and scored by a select committee prior to being presented Page 3 of 9
programs that provide direct services to indigent defendants; programs that establish of public defender offices; programs that establish of regional public defender offices; programs that provide mental health defender services; programs that provide juvenile defender services. Targeted specific funding. The Commission uses this solutions-based program to promote compliance and encourage counties to quickly address issues raised in compliance monitoring. A county may request assistance to address specific issues identified in site visits or compliance monitoring visits. The Commission staff works with counties to develop appropriate program elements and evaluation measures to address compliance issues related to the Fair Defense Act. Technical support funding. The Commission coordinates with counties to develop technical support projects to improve indigent defense services. Many types of technical support projects may be initiated, but all projects must raise the knowledge base about indigent defense or establish processes that may be replicated by other jurisdictions. Extraordinary disbursements. To qualify for extraordinary disbursement funding, a county must demonstrate that indigent defense expenses in the current or immediately preceding fiscal year constitute a financial hardship for the county. Each request is evaluated on a case-by-case basis against other requests and the amount of funds available, with $100,000 historically being the maximum amount a county may receive. In past years issues such as hurricanes, capital murder cases and other types of cases impacted counties and made them eligible for extraordinary funding. Page 4 of 9
Since FDA Passage Texas Tribune, 2010 Overall state and county funding has more than doubled: from around $90 million a year in 2001 to about $165 million in FY2011. State funding has increased: Funding for indigent defense by the state has gone from $0 in 2001 to about $33 million a year today. The FDA had generated over $203 million since its passage. More attorneys are being appointed to represent indigent defendants: In 2002, about 324,000 indigent defendants received appointed counsel; in 2009 that was up to over 470,000 cases, a 45 percent increase. The percentage of misdemeanor and felony cases receiving appointed counsel has gone up across counties as well. Page 5 of 9
More public defender offices: In 2001, only seven of Texas' 254 counties had some form of public defender in operation. Today there are 18 public defender offices of some type serving more than 100 counties, including FINALLY Harris County. To date, the Harris County Public Defender office has received about $9.7 million in state funds. The state will continue to contribute funding next three years in decreasing percentages until the office will be completely funded by the county. Over the first four years, the state will contribute about $18 million in total. In 2009, Senator Ellis co-authored a bill to create The Office of Capital Writs to handle death penalty cases upon the second appeal. It had become very well known that prior to 2009, death penalty cases in Texas were riddled with incomplete and incompetent legal work. The Office of Capital Writs employs specialized habeas attorneys and investigators. Strategy The effort in Texas has been based on combining advocacy efforts in the legislative, media/outreach, grassroots organizing/community mobilization arenas. We worked with the brightest and most dedicated indigent defense advocates to get the best research. As we suspected, the Texas indigent defense system was an embarrassment. Next we did outreach to media outlets, religious leaders, and academic centers. When presented with the research, it was difficult not to recognize that something had to be done. In turn, each community, with occasional prompting from my office, did what they did best. The media outlets brought attention to the issues. The religious leaders organized the community and shamed the establishment. The academic centers held symposiums and brought the experts from around the country to Texas. The obstacles have been recalcitrant judges, politicians, and lawyers. With any policy, we had to work towards getting buy-in from the people with political clout. The solution has been constant political focus, advocacy, organizing, research, negotiation, and pressure. They keys to success of FDA have been 1) mandating standards, 2)providing funding that's used as a "carrot" for jurisdictions to improve Page 6 of 9
indigent defense services and innovation 3) importance of consistent political advocacy, 4) importance of community mobilization. Current Challenges Today the biggest threat to Texas indigent defense system is budget cuts and the raiding of the Fair Defense Account to help balance the budget. Every dime that is in the Fair Defense Account and is spent by the state on indigent defense comes from dedicated fees. We have a fee on criminal convictions; a fee on surety bonds; a legal services fee for law licenses a tax on lawyers as we call it; and a $4 court cost that pays for juror pay and indigent defense. Zero dollars comes from General Revenue. During the 82nd Legislature s Regular Session, the general appropriations bill or HB 1 reduced funding for indigent defense to $54,674,013 for the biennium ($27.3 million each year), which reflects $8.6 million in cuts over the biennium, 10% reduction of administrative budget over the biennium ($174,100), and the loss of one FTE (staff) position. During the First Called Session the legislature restored $7.6 million in funding, the administrative budget and FTE as part of SB 2. 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 $80,000 each year and one FTE for administration and coordination of the innocence projects. Page 7 of 9
What Still Needs to Be Done Despite these improvements, indigent defense in Texas still needs help. Our problems include: Low Per Capita Spending on Indigent Defense: As of 2008, Texas was last among the ten most populous states for funding indigent defense; 48th overall at $7.16 per person. County Per Capita Spending in FY 2010 Low Appointment Rates in Rural Counties, Especially for Misdemeanors. And, Page 8 of 9
Low levels of funding for investigators and expert witnesses. Page 9 of 9