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254 Ways to Defend Poor People in Texas

Photo: Courtesy Photo, License: N/A

Courtesy Photo

State Senator Rodney Ellis filed the bill that created the Fair Defense Act.

Nationally, about 80 percent of state criminal defendants are too poor to afford to hire a lawyer, yet they’re entitled to legal representation under the 6th Amendment. Fifty-one years ago, the Supreme Court mandated that states provide such assistance.

Curious then, that in Texas, some counties provide that representation to these poor defendants less than 10 percent of the time. In Jefferson County, in one year, only two percent of misdemeanor defendants had court-appointed representation. In Williamson County, which in 2012 settled a lawsuit that made it to the Texas Supreme Court, the number hovered around eight percent.

Take an interest in this side of criminal justice—known as indigent or public defense—and you’ll begin to hear of other ways Texas counties routinely fail to provide citizens with this constitutional right. McLennan County, which houses Waco, recently implemented a policy that allows county officials to investigate defendants whose poverty claims it deems suspicious, a move indigent defense advocates claim is borderline unconstitutional. Back in Jefferson County, circa 2012, judges used to remove defendants from the indigent defense list for making bail, which is expressly against state law. Bexar County is finally beginning to reform its much-criticized public defender system, which had serious issues maintaining independence and providing attorney-client confidentiality.

Most troubling, these examples come well after the implementation of Texas’ Fair Defense Act (FDA), passed by the state legislature in 2001 to try to give some structure to what had previously been a crazy quilt of indigent defense. Before the FDA, each of the 862 county and district courts in Texas could determine how to deal with low-income defendants. Now the FDA requires each Texas county come up with an indigent defense plan and lays out certain requirements and recommendations. The FDA also created the Texas Indigent Defense Commission (TIDC) to oversee county compliance. But that still means there are 254 ways of providing indigent defense—one for each county in Texas.

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