Texas Poised to Reform Its Criminal Defense System for Poor

Texas legislators on Thursday approved dramatic changes in the state’s system of representing indigent criminal defendants, culminating a battle that came to national attention during the 2000 presidential election when then-Gov. George W. Bush had to face questions about defense lawyers who slept through death penalty trials.

The reforms are much stronger than a set that Bush vetoed in 1999, and some observers--including state Sen. Rodney Ellis (D-Houston), one of the chief sponsors of the legislation--said there was little doubt that the public scrutiny Texas’ procedures received during the election played a role in the outcome.

On Thursday, the Senate approved a revised bill, already passed by the House, paving the way for it to go to Gov. Rick Perry, who is expected to sign the measure.

Passage of the measure marks “a milestone in the evolution of Texas’ criminal justice system,” said Rep. Juan J. Hinojosa (D-Edinburg), principal sponsor in the Texas House.

“This is the single largest step Texas has taken to improve indigent defense practices across the state,” said Austin attorney Bill Beardall, legal director of Texas Appleseed, a nonprofit group that played a key role in advocating reform.

Appleseed issued a detailed report last December saying poor Texans charged with crimes frequently languished in jail for months without a lawyer and often received poor representation when they finally got one. More than 80% of defendants in criminal cases in Texas are indigent.

The legislation provides that an arrested person must be brought before a magistrate within 48 hours of arrest.

For the first time in Texas, there will be time limits on how soon attorneys must be provided to indigents charged with crimes--within 24 hours after appearing before a magistrate in large counties and within 72 hours in counties under 250,000 population.

The measure also creates a 12-member task force to establish for the first time statewide standards for appointing defense attorneys. The bill provides that there can be three types of defense representation: a public defender system; the creation of a “wheel” of acceptable attorneys who would be chosen in rotation; or some other acceptable system set up by judges and commissioners in a given county. Appointments must be allocated among qualified attorneys in a “fair, neutral and nondiscriminatory manner.”

The bill also makes it easier for defense lawyers to be reimbursed for investigative expenses and the use of experts such as psychiatrists.

In another first, the state will distribute $12 million annually in grants to assist counties with additional expenses incurred in providing indigent representation.

The pending changes were lauded by criminal justice consultant Robert Spangenberg of West Newton, Mass., who has spent considerable time in Texas investigating the situation.

“Just the fact that the bill requires judges to publish and distribute the requirements for appointment of counsel and fees is a major step forward,” Spangenberg said. “Prior to now, individual judges had so much control in the appointment process there was no way to determine how it happened.”

Still, Spangenberg cautioned, “this is not a perfect bill. This is not the end of indigent defense problems in Texas.”

Some defense lawyers were more critical. John Niland of the Texas Defender Service, which provides free representation to defendants appealing death penalty convictions, said key parts of the bill had been “gutted.” He expressed particular concern that the standards for an attorney to be appointed in a capital case had been weakened.

Currently, the state’s rate of per capita spending on indigent representation is the second lowest in the nation, higher only than that of North Dakota.

Texas is one of only three states in the nation that has provided no state funding for indigent defense. All such funding has come from each of the state’s 254 counties, leading to a patchwork system that varied wildly in quality, according to the Appleseed report.

Unlike California, where virtually every county has a tax-supported public defender office, only a few Texas counties have such systems. In addition, Texas is the only large state where populous cities such as Houston, in Harris County, have no public defender system.

In most counties, including Harris--which has sent more people to death row than most states--lawyers are picked by individual judges to represent indigents on a case-by-case basis and there have been no statewide standards for qualifications. Two cases pending on appeal--one in federal court and one in state court--involve trials in Harris County where defense lawyers slept through significant portions of a death penalty case.

In recent days, county commissioners, who expressed dismay about potential costs of the new legislation, wrested one significant concession--an amendment withholding appointment of a government-paid attorney to an indigent individual who is free on bail but not formally charged with a crime. Such persons would not get the services of a government-paid attorney until their first court appearance.

Some Texas judges oppose the bill and may urge Perry to veto the measure as they lobbied Bush to kill even weaker legislation in 1999.

Judges, who are elected in Texas and will lose the virtually unfettered power they now have over appointing lawyers for indigents, can wield enormous behind-the-scenes influence in the state, said Michael K. Moore, a University of Texas-Arlington political science professor who co-authored a Texas Bar Assn. report in September that described Texas’ system as a “national embarrassment.”

Moore said that although a number of advocacy groups and individuals played key roles in the reform effort, the person most responsible is the president.

“George Bush is the reason this passed,” Moore said. “Had it not been for Bush’s run for the presidency and his veto of the 1999 bill and all the media attention he brought to Texas, we would be nowhere near where we are now.”