how many will appeal in Hail?

December 23, 2001

Act overhauls indigent legal defense

By TOMMY WITHERSPOON Tribune-Herald staff writer

When George W. Bush was running for president, the national spotlight hit Texas with a white-hot glare.

Nowhere was the focus more intense than on the state's criminal justice system, the country's runaway leader in administering the death penalty but second to last in per capita funding for indigent defense.

When Bush guaranteed that no innocent man had been put to death under his watch, the gauntlet was thrown down. Horror stories emerged of court-appointed defense attorneys sleeping through trials and criminal defendants languishing in jail for months without benefit of counsel.

With those tales and plenty of others on their minds, Texas legislators pushed through wide-sweeping Senate Bill 7, also known as the Texas Fair Defense Act. The act overhauls Texas' indigent criminal defense system and provides new minimum standards for lawyers.

Among other things, the act requires the prompt appointment of defense counsel after arrest; prompt attorney contact with defendants; and establishes minimum qualifications that appointed attorneys must meet. It also defines basic standards for determining indigency; outlines methods judges use to appoint attorneys; and requires judges to establish an attorney fee schedule.

While civil libertarians and others have praised the Fair Defense Act, some see it as another example of the state setting up burdensome, unfunded requirements that are not necessary.

"I think it is going to create a bureaucracy and a system to address a problem that does not exist in this county," said 19th State District Judge Ralph Strother, McLennan County's juvenile court judge. "It is going to be complex and difficult to administer. Six months from now I may change my mind. But right now it looks to me like it is going to create a greater roadblock to justice than anything that the act was contemplated to correct."

Counties must adopt new procedures under the bill and have them on file with the Office of Court Administration in Austin by Jan. 1.

Bill Beardall, executive director of the Equal Justice Center, a nonprofit law center based in Austin that pushed for the indigent criminal defense reforms, said the act is "definitely a step in the right direction to improve the state's antiquated, substandard system."

"It is certainly not a panacea and it only sets in motion a process that we hope will lead to gradual and incremental improvements over a period of years," Beardall said. "But on the other hand, it is really the greatest single step forward in indigent defense reform that any state has taken in one time."

In McLennan County, officials involved in the judicial system met last week to formulate the county's plan, which, in many instances, amounts to nothing more than tweaking the system that is already in place.

Among the bigger changes in store are the establishment of a system by which attorney qualifications are judged and dramatic increases in pay for court-appointed attorneys, which will be funded by the county.

In felony court, 54th State District Judge George Allen will establish minimum experience levels for attorneys depending on the seriousness of the crimes, from capital murder cases down to state-jail felonies.

Allen will establish a list of attorneys whom he thinks can handle first-degree felonies, those qualified to handle second-degree felonies and those who can take on third-degree or state-jail felonies. Only the most experienced criminal attorneys will be given capital murder cases, as has been Allen's custom over the years.

In juvenile court, Strother must decide which attorneys to assign cases that range from murder to serious assaults to truancies and shoplifting. David Hodges and Mike Gassaway, the county's two county court-at-law judges, will keep similar attorney lists for the misdemeanor cases that come through their courts.

Most of the judges also are using the act as impetus to revise the county's 20-year pay structure for court-appointed attorneys. While Allen paid the 30 or so attorneys on his court-appointment list a flat fee of $400 for a guilty plea of any kind, he now will increase that incrementily by offense level: $400 for third-degree felonies, $500 for second-degrees and $750 for first-degree felony pleas.

"I just think that this makes it more equitable and fair," Allen said. "A lot of this is cosmetic because you have things going on in other areas of the state that we don't have here and sometimes bad facts make for bad laws. But there are some inequities in the way lawyers are paid for court-appointed cases and I think this will address that. The reason they made the changes is to try to get more continuity."

Strother, who also will increase attorneys' fees in juvenile court, said there is an element of public service involved in taking a court appointment to represent an indigent defendant.

"If we are trying to create a system where we are equating the value of justice with the fees that are paid, isn't that the exact opposite of what this whole system is supposed to be about? To me, this is sending the signal that justice equals money and that has been the complaint of people who wanted to create this in the first place. So I am not sure we are getting very far," Strother said.

Walter M. Reaves Jr., an experienced criminal defense attorney from West, served on a local Bar Association committee to help draft proposed measures for the McLennan County plan. He said he thinks increases in attorneys' fees will help attract better-qualified attorneys to the court appointment pool.

"It is long overdue," Reaves said. "Some places obviously need it more than others. We have a fairly decent system that works here, but not every (place) in the state has that same system. In a lot of places, I think it is going to do a lot of good, and everywhere, it will do some good to increase the fees that are paid to lawyers. Lawyers need to be paid a fee that is at least consistent with the amount of work you are putting into it."

Reaves said most counties will have to increase fees paid to attorneys because the act requires that attorney "overhead" expenses, such as office rent, staff, equipment and utilities, be factored into the rate structure.

"I'm not sure the county commissioners or a CEO of a major corporation would want to be represented by an attorney who is being paid $50 an hour," Reaves said. "If you are being paid $50 an hour or a flat fee of $400 and you put in seven or eight hours on a case, you are not making any money. In fact, you are probably losing money."

McLennan County Auditor Steve Moore said that the county spent $1.25 million in 2000-01 on indigent defense. That figure includes fees for court-appointed attorneys, investigators, expert witnesses, evidence analysis and language translators.

The county has budgeted $1.27 million for those services for the budget year that started Oct. 1, Moore said.

"The act does not mandate that those fees go up," Moore said. "It just provides for the courts to develop a structure that will be used in handling indigent defense. We did not know how the act would affect the costs when we were working on the preliminary budget."

County Commissioner Lester Gibson said the system needs to be improved.

"If you don't have money for a lawyer, you are behind the eight ball," Gibson said. "If you have money, you can get representation. We have a system that is well-funded in regard to the district attorney's office and law enforcement, which it should be. But it is disparaging to the defense point of view. I think the intent of the law will improve indigent representation."