Experts attribute this newfound momentum to an opportunity to fund the office through a grant, bipartisan support for criminal justice reform and increased activism.
The Texas Indigent Defense Commission, a state agency, provides grants to counties seeking to strengthen their indigent defense systems.
Since 2001, the TIDC has helped establish 13 of the state’s 20 public defender’s offices.
“We’ve seen both in anecdote and in study after study after study that these public defender’s offices tend to provide better representation,” TIDC Executive Director Geoffrey Burkhart said.
A 2018 study by researchers at Rand Corp. and the University of Pennsylvania Law School found that a holistic public defense model—like the one Travis County is proposing—reduces the likelihood of jail or prison sentences by 16% and expected sentence length by 24%, leading to lower incarceration costs for local and state governments.
But challenges remain, including cost and oversight from private defense attorneys.
This fiscal year, Travis County allotted more than $137 million—12.58% of its budget—to corrections and rehabilitation. The addition of a public defender’s office would increase the county’s indigent defense spending more than a third, from $13.9 million in FY 2018 to $19.3 million in FY 2020, as projected in a TIDC feasibility study.
The county submitted its application for the TIDC grant, which would cover half of the public defender’s office startup costs over four years, in May. The agency will announce awardees in June.
A constitutional right
“Building a public defender’s office is not about saving money or efficiencies,” said Amanda Woog, executive director of the Texas Fair Defense Project, a nonprofit that advocates for the rights of low-income Texans within the criminal justice system, and chairperson of the county’s indigent legal services work group. “Both of those things can happen and, I believe, will happen. ... But this is about more than that.”
In 2001, the Texas Legislature passed the Fair Defense Act, which required the state’s criminal courts to adopt formal procedures for appointing lawyers to poor defendants and created what later became the TIDC to oversee the process.
Travis County has been working to improve its indigent defense system since at least 1971, when it created the first juvenile public defender’s office in the state.
More recently, in 2015, the county replaced “bench appointments”—in which judges assigned indigent cases to private attorneys, raising concerns of favoritism—with a random system that is managed by the Capital Area Private Defender Service. It appoints private lawyers to represent indigent clients for a flat fee.
As proposed, the public defender’s office would handle 30% of those cases. Private attorneys, through CAPDS, would continue to represent the remainder.
Despite progress on the public defender’s office front, issues persist with CAPDS, including a problematic pay structure and overloaded attorneys.
“A flat rate creates perverse incentives,” said Chris Perri, a criminal defense lawyer and member of the Austin Criminal Defense Lawyers Association board who supports increased funding for CAPDS. “And that incentivizes speedily resolving a case instead of quality resolving the case.”
According to state-commissioned guidelines for indigent defense caseloads, attorneys should carry no more than 236 misdemeanors or 174 felonies annually to ensure effective representation—and fewer if the charges are more serious.
In 2018, the most indigent cases a private attorney in Travis County took on was 628, per the TIDC. Thirty-three of the 231 attorneys—or one in seven—contracted by the county exceeded the maximum caseload of 236; all had a mix of misdemeanor and felony cases.
Researchers at the Council of State Governments, a nonpartisan, nonprofit think tank, found in a 2018 report that, controlling for all factors that could impact results, defendants charged with a drug possession felony were 16% more likely to be found guilty if they had been appointed an attorney than if they had hired one.
A work in progress
In October, Travis County Judge Sarah Eckhardt spearheaded the creation of a 14-member indigent legal services work group, consisting of defense attorneys, activists, academics and county staff.
Its task is to explore paths to create a public defender’s office, improve CAPDS and reform the pay structure for appointed counsel.
But the group has experienced some setbacks.
In February, two members affiliated with the ACDLA resigned, citing conflict with activist members, a rushed process and inadequate funding for CAPDS. “What I think and what my board thinks and what most of the defense lawyers think … is that we first need to get a commitment from the commissioners to adequately fund [CAPDS],” Perri said.
Days before the TIDC’s May 10 grant application deadline, a group of Travis County criminal court judges proposed changes to the work group’s plan, making their support for a new office contingent upon additional funding for CAPDS to ensure that there will be equity among indigent clients, whether represented by private attorneys or public defenders.
“[The judges] believe the whole system has to be fair, and they are responsible for the whole system,” said Debra Hale, criminal court administrator for Travis County, at a May 7 Commissioners Court meeting. “They are not in favor of any proposal that only takes care of a portion of clients.”
Work group members saw the eleventh-hour intervention in a different light.
“It undermines the work we have done to create a public defender office to serve community,” Woog wrote in a May 3 email to commissioners.
At a May 7 meeting of the Commissioners Court, Eckhardt proposed a third way, which delayed some decisions—particularly around oversight of the office—until after the grant application deadline.
Local judiciary support was a requirement of the TIDC. Judges signed off on Eckhardt’s amendment.
“This is a huge institutional change,” Eckhardt said following the May 7 meeting. “If this was easy, we would have done it already.”
Pending a TIDC grant, Travis County still has work to do to create this office.
State lawmakers have made property tax reform a key issue of the current legislative session. If they succeed in passing a revenue cap, the county will be limited in its ability to fund new programs such as the public defender’s office.
But if the office is established, it will fit into a series of criminal justice reforms made at the local level, from the county’s jail-diversion programs to the city of Austin’s Freedom Cities policies, which are intended to reduce racial disparities in discretionary arrests and to ensure police officers who ask about immigration status inform people of their right not to answer.
“If you’re going to have criminal justice reform, you have to have public defense reform,” Burkhart said.