Charles H. Awalt, Chair 
Allan K. Butcher 
Larry M. Moore 
Michael K. Moore

Introduction

Even the most casual observer of our criminal justice system understands that certain conditions must hold for the system to properly function. It is understood, for example, that those charged with crimes should be represented by a lawyer, that the lawyer should be a zealous advocate for his or her client, and that decisions reached by the court should be blind to the defendant's race, gender, or economic station in life.

The value of a having a "good" lawyer and a properly functioning system is something that has long been recognized. In 1967, the President’s Task Force on the Administration of Justice observed that "the significance of having able defense counsel goes beyond the importance of providing effective representation. Experience has shown that when good lawyers are brought into criminal practice, their impact is felt far beyond the cases they handle. They ask questions and put pressure on everyone in the system to examine what he is doing and why." (Task Force Report: The Courts, 57). Simply put, qualified defense counsel make the system better by their presence. Former Attorney General Janet Reno made this very point when she noted that:

All of us here recognize that the defense is an equally essential element of the criminal justice process, one which should be appropriately structured and funded, and operating with effective standards. The reality is that despite the Supreme Court’s decision 36 years ago in Gideon v. Wainwright that every defendant, rich or poor, has the right to be represented by a lawyer when charged with a serious crime, our system of indigent defense needs to be improved. But it is not just poor defendants who have a stake in our system of indigent defense. Just ask a prosecutor, an arresting office, or even a victim of crime: would they rather raise a vigorous defense at trial or risk an overturned conviction and retrial? When the conviction of a defendant is challenged on the basis of inadequate representation, the very legitimacy of the conviction is called into question. Our criminal justice system is interdependent: if one leg of the system is weaker than others, the whole system will ultimately falter. (Reno 1999)

In 1994, the State Bar of Texas created a standing Committee on Legal Services to the Poor in Criminal Matters. The committee was charged with examining the current system and making recommendations for its improvement. To that end, the Committee administered surveys to criminal defense lawyers, prosecutors, and judges. The results of these surveys have been reported in detail elsewhere, however, the general conclusion reached is that the provision of legal services to indigents in Texas could be significantly improved. Specifically, the findings revealed that lawyers are frequently not appointed in a timely fashion and they are frequently not adequately compensated for their work. The findings also revealed that in most cases lawyers are assigned in an ad hoc fashion and that there is little about current methods that could properly be considered a "system" for providing legal representation. Finally, the Committee discovered that lawyers frequently do not feel free to serve as independent advocates for their clients and that judicial outcomes vary between similarly situated clients based on whether their lawyer was retained or appointed.

Efforts throughout the state echo the findings of the Committee. Various newspaper accounts have detailed the shortcomings of present procedures. Advocacy groups such as Texas Appleseed and Texas Defender Service have issued their own reports, based on observations and impressionistic evidence, which concur with sentiments of the Committee’s report. This increased attention to issues related to indigent criminal defense in Texas was recently showcased in a symposium sponsored by the State Bar of Texas. Most commentators at that event concluded that while Texas had made impressive strides by calling attention to this issue and that many "best practices" existed throughout the state, much work remained.

It is to that work that we now turn.

The lack of anything that resembles a "system" of indigent criminal defense in Texas is a consequence of our having neglected to adopt standards for the provision of legal services. Most states have adopted standards that guide the administration of justice in such matters. In some cases, the standards specify the type of system that the jurisdiction must adopt, in other cases, the standards leave open the choice of delivery method and instead provide guiding principles regardless of the type of delivery vehicle selected. Given the diversity of Texas and the plethora of existing practices, it is our belief that we should provide principles which apply to a variety of delivery vehicles instead of attempting to dictate a single system for all jurisdictions. Urban and rural jurisdictions have different needs and resources and must have the ability to tailor systems to their specific contexts. However, despite the recognition that differences exist in our large and diverse state, the delivery of legal services to the poor should adhere to some common principles, regardless of the jurisdiction. Specifically, we believe that competent, independent legal counsel should be assigned in a timely fashion, that legal counsel should have access to all the resources necessary to properly defend his or her client, and that the delivery system should be void of political considerations. These principles guide the standards we propose below.

The objectives and standards articulated below do not reflect innovative thinking on our parts. Indeed, much of what is presented below is borrowed from existing standards and documents describing defender systems over the past thirty years. What is ground breaking, however, is the notion that the State of Texas should adopt uniform standards for all criminal jurisdictions. We believe these standards can be applied to any delivery system. We also believe that these standards are so fundamental to the basic fairness of the criminal justice process that there can be little disagreement for their need.

Standard 1     Eligibility for Counsel 

Effective representation shall be provided to anyone who is unable, without substantial financial hardship to himself or to his dependents, to obtain such representation

                    Standard 1.1 Determination of Eligibility

1.1.A. In determining whether a defendant is indigent, the only factors which may be considered are the defendant’s funds, sources of funds, spousal funds that are available to the defendant, property owned, outstanding obligations, necessary expenses, and the number and ages of dependents. A defendant shall not be ineligible to be classed as indigent merely because he has obtained his release on bond. The standards or procedures established to determine whether a defendant is indigent shall apply equally to all defendants whether in custody or released on bail.

The accused shall testify or complete a questionnaire under oath attesting to the individual’s financial means. This sworn statement shall carry the presumption that the individual is indigent unless challenged. Evidence that the individual is eligible for federal or state assistance under poverty guidelines shall also constitute evidence of indigency. 

Commentary: Findings from our surveys indicate that bail is the most common criterion used to determine whether an individual is appointed an attorney. Where this is the sole factor considered, it is in direct violation of existing law. (Code of Criminal Procedure, Article 26.04[b]) Moreover, there are many instances where an individual can afford bail, but cannot afford an attorney. The individual should not be placed in a position of choosing between his job, place of residence, family, et cetera on one hand and obtaining an attorney. The use of the term "spousal funds that are available to the defendant" is a narrowing of the term "spousal income" that is used in the current statute.

1.1B Consistent with Art. 26.05e it is recognized that indigency is not an "either or" condition, but often a matter of degree. If the court determines that an individual has financial resources that enable her to offset part of the costs of legal services provided, the court may order partial payment of the costs of representation.

Standard 2 Effective representation shall be provided for every eligible person as soon as the person is arrested, or it is reasonable to believe that a process will commence which may result in a loss of liberty. 

 Standard 2.1 Timeliness

Whenever possible, a system for the assignment of counsel shall be in place that provides legal representation as soon as possible after the person is arrested or detained. Individuals who have been arrested will be given their magistrate’s warnings within 24 hours after arrest. At this time, a determination of indigency shall be made and attorneys assigned to those that are determined indigent.

Commentary: Evidence gathered by newspapers and others indicate that in some instances individuals languish in jail for a number of days without counsel. There are many reasons why this should not happen. First, the individual who has been arrested is entitled to counsel to ensure their rights are protected. Second, without legal counsel, the county may hold an individual when there is not sufficient evidence. Trained counsel can quickly spot these situations and resolve the matter in a timely fashion. This not only protects the individual’s rights, but also is more efficient for the county. Finally, timely appointment of counsel increases the probability that counsel will be able to properly prepare their defense before the "trail has gone cold."Under our present system, judges are not in a position to know when a person is arrested or detained. The obligation to bring a detainee before a judge for appointment of counsel lies with the detaining authority, not the judge.

Standard 3 Eligible Attorneys

The system may use appointed attorneys, a public defenders' office, contract attorneys, or any combination of these three alternatives.

Commentary. For these purposes, a "public defender" is a governmental entity or nonprofit organization:  (1) operating under a written agreement with a governmental entity, other than an individual judge or court; and (2) using public funds; and (3) providing legal representation and services to indigent defendants accused of crimes.  A "contract attorney" is an attorney or a group of attorneys who have agreed with a court or governmental entity to represent indigent defendants accused of crimes for a single, predetermined fee.

Standard 3.1 Appointed Attorneys

The judges having criminal jurisdiction shall establish the qualifications required of attorneys eligible to be appointed to represent indigent defendants. The pool(s) of eligible attorneys shall be determined collectively by all judges in the county having criminal jurisdiction either from those attorneys volunteering for such appointments or from the list of all licensed attorneys in active practice within the county and, if necessary, surrounding counties. All appointments of counsel for indigent defendants in any court in the county shall be made from the pool(s) of qualified attorneys established by the judges collectively.

3.1A. The Selection of Appointed Attorneys

Ideally, the judges having criminal jurisdiction shall establish one or more lists by which the qualified attorneys are categorized based on their qualifications. The attorneys on each of these described lists will be listed alphabetically, with new names inserted in the proper alphabetical place as these are encountered. The court’s designee shall appoint an attorney from the next five names on the appropriate list, using a system of rotation. The court or its designee may deviate from the five names in the rotational order if the court or its designee enters a finding of good cause on the record for appointing an attorney out of order. An attorney who is not appointed in the order in which the attorney’s name appears on the list shall remain next in order on that list.

3.1.B. Multiple Courts.

In jurisdictions in which more than one court has criminal jurisdiction, all the judges having such responsibilities shall sit on the panel that establishes the qualifications for appointed attorneys and categorizes, according to qualifications, those attorneys eligible for appointment.

3.1.C  Single Courts.

In jurisdictions in which it is deemed appropriate, the judges of two or more adjoining counties may sit on a single panel and establish a multi-county pool of eligible attorneys from which the courts of those participating counties may appoint.

3.1D The Qualifications of Appointed Attorneys

Any jurisdiction using appointed attorneys shall develop a system of measuring each participating attorney’s level of expertise. This level of expertise shall be used to assist in the assignment of cases. The determination may be made by a review of previous work, an interview, a test, the level of experience or other reasonable criteria. From time to time, the jurisdiction shall reevaluate its assessment of the attorney’s ability and, if necessary, reclassify the attorney’s level of ability.

Commentary. It is anticipated that the system by which these evaluations will be conducted would employ the broadest range of considerations. These might include the number of jury trials the attorney has had, the number of appellate briefs he or she has written, the amount and types of continuing legal education completed as well as interviews with the judges before whom the attorney has appeared, counsel who have opposed him, as well as the attorney, himself.

3.1.E. Development of the Pool of Eligible Attorneys

The jurisdiction shall facilitate training for attorneys who are willing to learn criminal defense work or to become more proficient in such work.

Standard 3.2 The Public Defenders' Office

Public Defenders' Offices must be funded, staffed and maintained in a manner commensurate with that of the county's prosecutors' offices. The same pay schedule, career paths, ratio of support personnel and equipment and the resources for obtaining experts or other assistance needed to carry out their responsibilities, shall apply to the county's prosecution offices and that of the public defender.

Standard 3.3 Contract Systems

Criminal jurisdictions may enter into contracts for the provision of legal services to indigents charged in criminal matters. Such contracts should ensure quality legal representation. The contracting authority shall not award a contract primarily on the basis of cost. Where an individual or group of individuals provide services pursuant to a contract, the contract shall provide for the continuity of the defender's service beyond the contract period to ensure the continuity of representation.

3.3A Procedures for the award of contracts shall be widely published by the contracting authority substantially in advance of the scheduled date of award. The announcement shall specify the qualifications required for the contractor and the decision criteria that will be used to evaluate the applicants.

3.3 B The contracting authority shall ensure the professional independence of the contractor. Under no circumstances shall a judge enter into a contract for legal services to be provided in his court.

Commentary. Many members of the committee are troubled by the use of the contract system. Observations indicate that contracts are often awarded solely on the basis of the lowest bid, without sufficient regard to the quality of services that will be given. Contracts to defend all or most of the indigent defendants in a particular court for a specific amount of money can become a nightmare if the number of cases exceed what was anticipated when the bid was made. This can end up with the attorneys being swamped with cases, without a hope of additional compensation. Too often, it is feared, contract systems result in the delivery of legal services in the most expeditious or most efficient manner, and not the manner dictated by the best interests of the client.

3.4 Scope of Attorney's Responsibilities

The responsibilities of an appointed attorney to his client shall continue from the time of the appointment through trial, the motion for new trial, and all ancillary proceedings. Unless relieved by the trial court, the appointed attorney’s responsibilities will continue, as needed, with the direct appeal, the motion for rehearing and the petition for discretionary review. The appointed attorney’s responsibilities will continue until the case is dismissed, the defendant is acquitted, his appeals are exhausted or the attorney is relieved of his duties by a competent court and replaced by other counsel.

Commentary. This recognizes that under current law, by the time an appellate attorney is appointed, the thirty days in which to file a new trial is often exhausted or nearly exhausted. Usually, the appellate attorney will know little or nothing about the case and therefore he is in a poor position to craft an appropriate motion for new trial. This standard will place the responsibility for pursuing the motion for new trial clearly on the shoulders of the trial attorney, the person who best knows the issues involved in the trial and what is needed in the motion for new trial. This standard also recognizes the need for the appellate attorney -- and not the trial judge-- to be the one to decide if a petition for discretionary review should be filed or not. Under current law, an indigent defendant is not entitled to have an appointed attorney represent him in an effort to have the Court of Criminal Appeals exercise discretionary review of his case. If an appointed attorney does this work, whether he is paid for it is a matter of grace, exercised by the trial judge whose errors the appointed attorney is trying to spotlight. There is no doubt that a person whose conviction had been affirmed by a court of appeals and who had sufficient money of his own with which to pursue discretionary review, would not find the question close. The absence of machinery to appoint an attorney to represent an indigent in his effort to obtain discretionary review is a clear example of having one law for the rich and another for the poor.

3.4A The appointed attorney shall make every reasonable effort to contact the defendant not later than 24 hours after the appointed attorney receives notice of the appointment.

Commentary. Repeated failures to abide by this standard is the type of consideration that can be made in reviewing an attorney’s continued participation in appointment system, as called for in Section 3.1D, above.

Standard 4 The appointment of counsel on an ad hoc, systemless basis is explicitly rejected as an appropriate means of furnishing legal representation in criminal cases.

Standard 5. Funds shall be available for the services of investigators, expert witnesses and other necessary services and facilities.

5.1. In evaluating the request for services and/or facilities the presumption shall be that the defense attorney’s request, if supported by a showing of particularized need, is reasonable and necessary and shall be granted.

5.2 In approving the request for services and/or facilities, the court may establish spending limits, but it shall not restrict the approval to a specific individual or facility. Instead, the approval shall be for the service in general and defense counsel shall be permitted to determine, within the financial parameters set by the court, which expert or facility best assists in the defense of his or her client.

5.3 Experts, facilities and other support services shall be paid promptly upon the completion of their work. The level of compensation shall be the same as the prevailing average for that service in the private sector.

Objective 6. Counsel designated to provide legal representation to those eligible shall be compensated for time and service performed in accordance with prevailing standards.

Standard 6. Assigned counsel shall be compensated for all services rendered and reasonable expenses incurred. Compensation rates in assigned matters shall be commensurate with that paid for other contracted government legal work (e.g., work contracted for by county commissioners and the like) or with prevailing rates for similar services performed by retained counsel in the jurisdiction.

Commentary. The studies administered by the committee indicate that the failure of the present system to provide reasonable compensation was the single most important cause of appointed attorneys' dissatisfaction and dysfunctional behavior. These studies found that many times the amount paid to an appointed lawyer did not cover his overhead expenses let alone provide remuneration for the attorney himself. In these instances, the court appointed lawyer essentially is working for nothing or nearly nothing. This makes understandable the findings in the committee's surveys that attorneys representing court appointed clients are often not as well prepared, do not present as vigorous a defense nor do they obtain the same results as these same lawyers do when they represent retained clients. This standard rejects the view that lawyers should provide legal services in criminal cases pro bono publico. While such a notion may have had merit when the burden of indigent defense was borne by the entire bar, the rise of specialization, necessitated by the increased complexity of criminal law, has resulted in the load being carried by a small percentage of the entire bar membership, i.e., the criminal defense bar. The committee noted that in a trial with an indigent defendant, neither the judge, the prosecutor, the court reporter, the bailiff , or any court participant --other than the defense lawyer-- is required to take a pay cut because of the defendant's indigent status. This cannot be justified since the case law has made clear that indigent defense is a responsibility of the entire community and not merely that of the defense bar or even the bar in general.

6.1. Attorneys shall be compensated at an hourly rate with no distinction between rates for services performed in or out of court.

6.2 There shall be no maximum amounts on any cases. Reasonable expenses and prevailing compensation rates shall be reimbursed.

6.3 Attorneys shall be required to submit an invoice detailing hours incurred and actual expenses. The jurisdiction shall pay the attorney the amount requested on the invoice and shall not reduce the amount requested unless there is a showing of good cause. If a voucher is not paid in full, the reasons for the reduction shall be made a matter of record. A mechanism for the appeal of a decision to reduce a pay voucher should be put into place. The submission of a false invoice shall be grounds for removal of an individual from the pool of eligible attorneys. For lengthy matters, attorneys may request and receive intermediate compensation.

Standard 7 The state shall provide financial resources to ensure adequate funding of these standards and to further ensure that prosecution and sentencing decisions are not influenced by financial concerns.

Commentary. The committee felt strongly that the State should evaluate all possible sources of funding, including allocating a portion of the drug forfeitures to this effort.

7.1 Funding agents shall not use the source of funding to interfere with the operations of the criminal justice system. The professional judgement of judges, prosecutors, and lawyers shall be presumed appropriate and financial considerations shall have no place in the judicial decision-making process.

Commentary Financial considerations involving indigent defense should not place small counties in a different position than larger counties when it comes to the decision to prosecute. By the same token, the punishment and sentence of an individual should not be a function of geography within the state. Texas is one of a handful of states that does not provide state level funding for indigent defense. The result is that smaller counties must often consider the economic ramifications of their decisions to prosecute. It has been widely reported on more than one occasion that counties in Texas have had to raise taxes to cover the costs of an expensive trial involving an indigent.

Standard 8 The jurisdiction shall perform periodic assessment of the quality of legal representation provided to those eligible for legal counsel. The assessment shall include, but not be limited to, an examination of sentencing outcomes to determine if disparate patterns between defendants with assigned and retained counsel.

8.1 The monitoring process shall also include appropriate record-keeping. The jurisdiction shall record the number of cases requiring assigned counsel, the expenses associated with each cases, the sentence outcome and other relevant data as deemed necessary.

8.2 Attorneys participating in the pool shall be periodically evaluated to assess the quality of legal representation provided to defendants.

Commentary: Currently no systematic method exists for evaluating the varied practices in Texas. Standardized data gathering would greatly assist the evaluation of quality and also assist in monitoring the expenses associated with the system.