Report to Texas House Criminal Jurisprudence Committee, Rep. Pete Gallego, Chair

1. Report to Texas House Criminal Jurisprudence Committee, Rep. Pete Gallego, Chair Indigent Defense Reform in Texas and Public Defender Offices: The Big Picture Dr. Tony FabeloDirector of Research

2. Your Work is Critical as Spotlight Increasing Regarding Need to Strengthen Indigent Defense

3. Fair Defense Act of 2001 by Senator Ellis and Rep. Hinojosa Set Indigent Defense Reform in Motion Texas Post FDA 2001 – 2010 Pre-2001 Reform Defined minimum operating standards with oversight by Indigent Defense Task Force No well defined minimum operating standards State formula and discretionary grants No state funding Sixteen public defender offices serving 91 counties in some capacity and one private defender office Seven public defender offices serving seven counties* * Colorado, Dallas, El Paso, Wichita and Webb with Cameron and Travis specializing in juvenile cases

4. Structure to Manage Indigent Defense in Texas is in Place and Represents Major Advancement from Pre-FDA Core Requirements of FDA Fiscal Accountability County plans have to be submitted addressing requirements Task Force oversees compliance with financial and reporting requirements • Baseline Expenses Documented • Expenses Properly Itemized • Attorney Appointment List with Qualified Persons • Proper Fee Vouchers • Indigent Defense Report Accurate • Grant Provisions Followed • Prompt Magistration • Indigence Determined According to Standard • Qualified Attorneys • Prompt Appointment • Fair, Neutral, and Non-discriminatory Appointments • Standard Payment Process

5. Types of Attorney Appointment Systems • Public Defenders: • Governmental Entity (i.e. County Department) or Non-Profit Corporation with full-time attorneys and other staff to represent indigent defendants • Authorized by Art. 26.044, Code of Criminal Procedure • Assigned Counsel: • Private Attorneys individually appointed by judge to represent an indigent defendant accused of a crime • Courts maintain list of qualified attorneys and rotation system is default method for appointing attorneys from list (Art. 26.04(a), Code of Criminal Procedure) • Contract Defender: • Private Attorneys engaged to provide representation to group of unspecified defendants before a court or group of courts • Task Force rules establish minimum standards (Title 1 Texas Administrative Code, Chapter 174, Subchapter B)

6. Timely Appointment Requirements a Critical Component of the Fair Defense Act 48 hours 24 hours 1 or 3 workdays 1 workday Arrest Magistration (Request for Counsel Taken) Request for Counsel Received by Appointing Authority Appointing Authority Determines Indigence and Notifies Counsel Appointed Counsel Contacts Clients at Jail

7. State Funding Has Increased to Subsidize Local Indigent Defense Costs and to Expand Programs State funds subsidize traditional local funding of indigent defense State funds also used to target special areas, like the expansion of public defender officers Texas has traditionally ranked in the bottom ten states in per capita expenditures for indigent defense

8. Methods of Funding Indigent Defense Systems in the States • Full funding by the state • 25 states • Over 50% funding by the state with balance by counties • 6 states • Less than 50% funding by the state with most of the funding provided by the counties • 18 states • Texas • No state funding for indigent defense with counties providing all the funding • 2 states

9. State Funding Covering Less Than Fifty Percent of Increased Cost and Task Force Targeting Funding for Improvements $61.6 million Increased costs due to FDA 2001 to 2009 FDA Fair Defense Act of 2001 $32.8 million not covered by the state (53.2%) $28.8 million provided by the state in FY2009 (46.8%) Strategy to close gap Targeted areas shown by data analysis to be cost-effective

10. Task Force to Increase Allocation of Funding for Targeted Initiatives Like Public Defender Offices Distribution of Funding by Task Force Agreement by Task Force in March 2010 strategic planning session to increase percentage of funding for targeted initiatives 10% 90% Target improvement in services Target regional approach to allow for better defense services in rural areas Direct accountability to Task Force for effective utilization of funds

11. Public Defender Offices Can Avoid Costs and Improve Services • In-house investigators • In-house training • Performance is measured • Caseloads are monitored • Courthouse insiders • Criminal defense specialists • Extensive trial experience • No economic incentives to plead Public Defenders Have Same Institutional Advantages as Prosecutors • New Public / Private Defenders Established by Task Force • 5 county public defender offices • 4 regional public defender offices • 1 appellate defender office • 1 private defender office • 3 new divisions in existing offices

12. Evaluations Find That Public Defender Offices Can Avoid Costs and Improve Services Economies of scale • Function more efficiently as an organized agency than as independent practitioners Controls over Case Quality • Performance standards (including caseload limits); • Ongoing professional development • Greater access to case supports such as investigators and expert witnesses • Close oversight of the quality of legal work provided • Potential mechanisms to attract and retain the most competent legal advocates Budget Predictability • Can improve the dependability and efficiency of indigent defense budgeting • Judges and commissioners can focus once annually on the public defender budget Reduced Jail Populations • Often able to make significant impacts on pretrial jail populations • Can identify persons needing bond reduction or with no cases filed Evidence for the Feasibility of Public Defender Offices in Texas Public Policy Research Institute at Texas A&M University November 9, 2006

13. Examples of Three Evaluations of Public Defender Offices in Bexar and Hidalgo Counties

14. Results from Evaluations of Bexar and Hidalgo “After nearly three years of operations both public defender offices have made significant improvements to their respective indigent defense systems” • Bexar County • Appellate office sped up the appellate process while providing high quality defense • Timing of appeals for the APDO is far shorter than the timing of appeals for assigned counsel • Briefs are filed sooner and the public defender cases reach final disposition sooner • Hidalgo County • Hidalgo PD has been able to shorten the time from arrest to pre-disposition release • This has helped save money by reducing jail overcrowding • In-custody misdemeanor defendants in Hidalgo County spend less time in jail pretrial.

15. Recent Research Shows the Potential Beneficial Outcomes of a Task Force Funded Public Defender Office Defendants in MH PD less likely to have a guilty plea of no probation MH PD for Felons and Violent Misdemeanants Statistically controlled groups Blue = defendants with assigned counsel Red = defendants with MHPD representation Blue and Red “look the same” based on study variables Source: Texas A&M Public Policy Institute, State Justice Institute, Texas Task Force on Indigent Defense and CSG Justice Center: Representing the Mentally Ill Offender: An Evaluation of Advocacy Alternatives, April 2010 Final

16. Potential Benefits of a Task Force Funded Public Defender Office (continued) Defendants in MH PD more likely to receive probation MH PD for Felons and Violent Misdemeanants Statistically controlled groups Blue = defendants with assigned counsel Red = defendants with MHPD representation Blue and Red “look the same” based on study variables Source: Texas A&M Public Policy Institute, State Justice Institute, Texas Task Force on Indigent Defense and CSG Justice Center: Representing the Mentally Ill Offender: An Evaluation of Advocacy Alternatives, April 2010 Final

17. Potential Benefits of a Task Force Funded Public Defender Office (continued) Defendants in MH PD more likely to have lower 18 months re-arrest rates MH PD for Felons and Violent Misdemeanants Statistically controlled groups Blue = defendants with assigned counsel Red = defendants with MHPD representation Blue and Red “look the same” based on study variables Source: Texas A&M Public Policy Institute, State Justice Institute, Texas Task Force on Indigent Defense and CSG Justice Center: Representing the Mentally Ill Offender: An Evaluation of Advocacy Alternatives, April 2010 Final

18. Regional Public Defender Offices Can Also Improve Services in Rural Areas and Avoid Costs Regional public defender offices provide services to multiple counties in the region that select to participate • Justices noted the public defender offered consistently prompt and high quality briefs • Outlying counties pulled out of program when state funding ended Bexar County West Texas Capital Defender Overall death penalty cases have dropped Negative Impact of Not Participating • Wilbarger County had declined joining regional program and had a death penalty case filed potentially draining to the county’s budget

19. Areas that You Need to Review to Improve Support for Public Defender Policy • Funding • Allocation of additional state funding for regional programs and low performing jurisdictions • Provide permanent state funding for established and new PD programs that meet Task Force standards • Statutory clarifications • Clarify statutes to ease regionalization and inter-local agreements • Authority of counties to decide public or non-profit before issuing an RFP • Examine related areas and need for legislation • Examine independence issues of public defender (Court and Commissioners Court) • Examine workload /caseload standards for private bar versus public defenders

20. Thank You Dr. Tony FabeloDirector of Researchtfabelo@csg.org504 West 12th StreetAustin, TX 787 This material was prepared for the Texas House of Criminal Jurisprudence Committee. The presentation was developed by members of the Council of State Governments Justice Center staff. Because presentations are not subject to the same rigorous review process as other printed materials, the statements made reflect the views of the authors, and should not be considered the official position of the Justice Center, the members of the Council of State Governments, or the funding agency supporting the work.