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Examining the Impact of Indigent Criminal Defense Reform in Texas: Has the Fair Defense Act Been Effective?
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nearly as dramatic in Texas as was the case in many other states. This is due in large measure to
the fact that as early as 1857, the Texas Code of Criminal Procedure provided, “(w)hen the
defendant is brought into Court, for the purpose of being arraigned, if it appears that he or she
has no counsel, and is too poor to employ counsel, the Court shall appoint one or more practicing
attorneys to defend him.” This guarantee of legal counsel in criminal cases, regardless of ability
to pay, has been the law in Texas for over 140 years and over 100 years before Gideon. In
addition to the Texas Code of Criminal Procedure, Article 1, Section 10 of the present (1876)
Texas Constitution guarantees the right of counsel and this provision has been found in every
Texas Constitution since Texas became a Republic in 1836. (See, Foster v. State, 767 S.W. 2d
89 [Tex. Crim. App. 1990]).
Historically, the day-to-day implementation of the requirements of Gideon occurred
through a number of systems. Criminal cases in Texas are tried in the counties in which the
offenses occur.
3
Prior to the Fair Defense Act each court had the authority to develop its own
3
To understand how Texas came to have this patchwork delivery system, rather than the unified systems found in
some other states, it is necessary to consider how Texas historically treated the issue. Texas was one of four states that placed sole responsibility for funding indigent defense at the local county level. It joined Pennsylvania, South Dakota and Utah in that approach. F
AIR
D
EFENSE
R
EPORT
:
A
NALYSIS OF
I
NDIGENT
D
EFENSE
P
RACTICES IN
T
EXAS
,
(2000), 34-35. Years ago, many of the counties merely assigned local attorneys to handle these cases with little or no compensation or funds for expenses. Because receiving these appointments was so unpopular, the bar associations in some counties developed a system whereby they assessed their membership and established a pool of funds from which attorneys who were willing to take these cases would be paid or have their county pay supplemented. Indeed, it was such an arrangement that resulted in a statute creating the first public defender effort in Texas. In 1969, the Tarrant County Bar Association (Fort Worth), which had been assessing its members for these funds, succeeded in transferring that financial burden to the county by persuading the legislature to provide one county-paid public defender position for each Tarrant County district court that handled criminal matters. Art. 26. 042, Tex. Code Crim. Proc. Even at present, some county bar associations in major metropolitan areas continue to assess members who do not want to take court appointments and use these funds to “sweeten” the pool of funds from which remuneration is paid to those attorneys who are willing to handle them. For example, in El Paso County, each attorney must either accept criminal appointments or pay a $600 assessment which is deposited in the county's Indigent Criminal Defense Fund.
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| | Authors: Moore, Michael., Butcher, Allan. and Burnett, Catherine. |
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3
nearly as dramatic in Texas as was the case in many other states. This is due in large measure to
the fact that as early as 1857, the Texas Code of Criminal Procedure provided, “(w)hen the
defendant is brought into Court, for the purpose of being arraigned, if it appears that he or she
has no counsel, and is too poor to employ counsel, the Court shall appoint one or more practicing
attorneys to defend him.” This guarantee of legal counsel in criminal cases, regardless of ability
to pay, has been the law in Texas for over 140 years and over 100 years before Gideon. In
addition to the Texas Code of Criminal Procedure, Article 1, Section 10 of the present (1876)
Texas Constitution guarantees the right of counsel and this provision has been found in every
Texas Constitution since Texas became a Republic in 1836. (See, Foster v. State, 767 S.W. 2d
89 [Tex. Crim. App. 1990]).
Historically, the day-to-day implementation of the requirements of Gideon occurred
through a number of systems. Criminal cases in Texas are tried in the counties in which the
offenses occur.
3
Prior to the Fair Defense Act each court had the authority to develop its own
3
To understand how Texas came to have this patchwork delivery system, rather than the unified systems found in
some other states, it is necessary to consider how Texas historically treated the issue. Texas was one of four states
that placed sole responsibility for funding indigent defense at the local county level. It joined Pennsylvania, South
Dakota and Utah in that approach. F
AIR
D
EFENSE
R
EPORT
:
A
NALYSIS OF
I
NDIGENT
D
EFENSE
P
RACTICES IN
T
EXAS
,
(2000), 34-35. Years ago, many of the counties merely assigned local attorneys to handle these cases with little or no
compensation or funds for expenses. Because receiving these appointments was so unpopular, the bar associations
in some counties developed a system whereby they assessed their membership and established a pool of funds from
which attorneys who were willing to take these cases would be paid or have their county pay supplemented. Indeed,
it was such an arrangement that resulted in a statute creating the first public defender effort in Texas. In 1969, the
Tarrant County Bar Association (Fort Worth), which had been assessing its members for these funds, succeeded in
transferring that financial burden to the county by persuading the legislature to provide one county-paid public
defender position for each Tarrant County district court that handled criminal matters. Art. 26. 042, Tex. Code Crim.
Proc. Even at present, some county bar associations in major metropolitan areas continue to assess members who
do not want to take court appointments and use these funds to “sweeten” the pool of funds from which
remuneration is paid to those attorneys who are willing to handle them. For example, in El Paso County, each
attorney must either accept criminal appointments or pay a $600 assessment which is deposited in the county's
Indigent Criminal Defense Fund.
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