The Texas Fair Defense Act

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."

The Texas Fair Defense Act

Summary of Key Provisions

The Fair Defense Act, enacted by the Texas Legislature in 2001, is a comprehensive reform with dozens of important interrelated provisions. Below are some of the most significant features.

Ë Counties must adopt and publish consistent county-wide indigent defense systems that meet basic minimum standards specified in the statute. The criminal court judges in each county have primary responsibility for devising the system, but the county commissioners must approve the system under certain circumstances.

Ë An arrested person must be brought before a magistrate within 48 hours of arrest where the person is to be given the right to request appointment of counsel. If the defendant requests appointed counsel, the magistrate must either appoint counsel immediately (if authorized to do so under that county’s system) or transmit the request to the appointing judge within 24 hours. The judge then must appoint counsel within one working day from the time the defendant’s request for appointment of counsel is received. In counties of less than 250,000, the judge must appoint counsel within three working days. Bottom line: counsel should be appointed within four working days of arrest in larger counties and within six working days of arrest in smaller counties.

Ë If the defendant is released on bond before counsel is appointed, the bill states that appointment of counsel is not required until the defendant’s first court appearance or "when adversarial judicial proceedings are initiated" whichever occurs first. However, since the U.S. Supreme Court and the Texas Court of Criminal Appeals have held in a number of cases that "adversarial judicial proceedings" are initiated at the point when the defendant is officially accused before the magistrate (i.e. within 48 hours of arrest). Thus counties are likely to find that prompt appointment on the simple four/six day time-line for all defendants–including those released on bond–is both more efficient and less risky constitutionally than attempting to delay.

Ë A person arrested without a warrant and detained in jail must be released on bond if a magistrate has not found probable cause within 24 hours in the case of a person arrested for a misdemeanor and within 48 hours in the case of a felony arrest.

Ë Appointed defense lawyers must make every reasonable effort to contact their client within one working day of appointment and to interview the client as soon as practicable.

Ë The felony and misdemeanor judges in each county must adopt and publish county-wide attorney appointment procedures for timely and fairly appointing defense counsel. Under the attorney appointment procedures, attorneys must meet objective qualification standards, graduated according to the seriousness of the offense. The attorney appointment procedures must allocate appointments among qualified attorneys in a "fair, neutral and nondiscriminatory manner."

Ë The default attorney selection method prescribed by the bill is a "rotation system" in which the judge must appoint an attorney from among the first five names appearing on a rotating public appointment list consisting of attorneys pre-certified as being qualified to handle cases of a designated level of seriousness.

Ë Instead of the using the "rotation system," for attorney selection, the courts may appoint public defenders, where a public defender program has been established.

Ë As a further alternative to the default rotation system, the misdemeanor or felony judges may establish an "alternative program" for appointment of counsel. The "alternative program" requires a two thirds vote of the judges. The "alternative program" must appoint attorneys from lists that are based on objective qualifications and that are graduated according to the seriousness of the offense.

Ë Under the rotation system or alternative system, there must be at least a misdemeanor and felony list based on appropriate attorney qualifications specified in the county-wide plan. There can be additional lists graduated according the seriousness of the offense (e.g. a list for first degree felonies, a second degree felony list, and a list for third degree and state jail felonies). Lawyers may appear on one of the appointment lists only if they meet the objective qualifications for that list and are approved by a majority of the misdemeanor or felony judges as actually competent to handle cases corresponding to that list.

Ë The county-wide indigent defense procedures must include procedures and objective financial standards for determining indigency based on the defendants specific financial circumstances. The defendant’s ability to post bail may not be considered apart from the defendants actual financial circumstances. A court may not threaten to arrest or incarcerate a person solely because the person requests the assistance of counsel.

Ë The Fair Defense Act eliminates the former requirement that counties get specific legislative authorization to create a public defender program. Any commissioners court, on written approval of one or more judges in the county, may establish a public defender program. Counties may also join together to create a regional public defender program.

Ë The judges in each county are required to adopt an appointed attorney fee schedule that states reasonable compensation rates "taking into consideration reasonable and necessary overhead costs and the availability of qualified attorneys willing to accept the stated rates."

Ë If a judge disapproves an attorney’s fee request, the judge must make written findings stating the amount approved and the reason for disapproving the requested amount. The attorney may appeal to the presiding judge of the administrative judicial region.

Ë The law clarifies and strengthens attorneys’ ability to obtain reimbursement for reasonable and necessary expenses for investigation and experts.

Ë The Act adopts new statewide attorney qualification standards for handling death penalty cases including minimum experience requirements and modest trial experience requirements.

Ë In order to remain on the list of attorneys qualified to be appointed in death penalty cases, an attorney must participate in annual professional training related to defense of death penalty cases.

Ë In a case charged as a capital felony, two attorneys must be appointed, unless and until the state gives notice in writing that the state will not seek the death penalty.

Ë Both the regional capital appointment committee and the Task Force on Indigent Defense shall review the regional lists of attorneys certified to handle death penalty cases to ensure that each listed attorney is qualified.

Ë The Fair Defense Act establishes a Texas Task Force on Indigent Defense with authority (1) to develop further minimum quality standards for indigent defense across the state; (2) to assist counties in meeting those standards; (3) to monitor county compliance with established indigent defense standards; and (4) to bring consistency, quality control, and accountability to indigent defense practices in Texas.

Ë The Act and its companion appropriation for the first time provide state funding for indigent defense services. Previously all indigent defense costs were borne by the counties. The funding mechanism, which is based on a court cost fee already being collected, will generate $7 million dollars in year one of the biennium, and $12 million in year two and ensuing years.

Ë The vast bulk of the new state funding will be distributed in the form of incentive grants to counties that meet the minimum quality standards established by the Legislature and the Task Force. Each county must use the new money to supplement current indigent defense spending by the county.

Ë The Act creates a centralized reporting system for collection of local county data on indigent defense practices and spending. Such data can be used by the public and the Task Force to monitor the operation of local indigent defense systems and assist in the development of further improvements.