To get a sense of who does what, what follows is an excerpt from the recent study completed by the State Bar’s Committee on Legal Services to the Poor in Criminal Matters (see related story). Editorial comments are those of the committee.

Three methods of assigning counsel in indigent criminal matters are used throughout the country. In some jurisdictions, public defenders (either elected or appointed) handle cases involving indigent defendants. The public defender’s office, under the best circumstances, is funded and staffed at a level similar to the district attorney’s office and acts as an independent advocate for their clients. Attorneys working in public defender offices are not typically engaged in private practice and are considered public employees.

Other jurisdictions “contract” with an individual attorney or group of attorneys to provide legal representation in all indigent matters. Just as a county takes bids for road construction, a judge may also take bids for the provision of legal services. Finally, the most common method of providing legal services to the poor is the judge-assigned counsel system. Under this system, the judge, or his or her designee, appoints private counsel to represent indigent clients.

(In two counties, Bexar and El Paso, all of the lawyers are initially put on the appointment lists, but then are allowed to “buy out” of service by paying the county a fee to not receive court appointments. Thus, all of the Bexar and El Paso lawyers who do not wish to handle criminal cases or who at least do not want to handle indigent defendants, simply pay an additional “tax” to the county to have their names removed from the appointment lists.) 

 Assigned Counsel Systems. While all three methods of providing legal representation are used in Texas, the assigned counsel system is by far the most prevalent. These “appointed” or “assigned” counsel systems, however, vary significantly throughout the state. Some judges assign attorneys from pools of those who have volunteered for such service.

Other judges restrict their appointments to attorneys who have met certain standards, such as years of practice, minimum trial experience or proof of continuing legal education. Harris County has by far the most rigorous formal requirements for appointments. In that county, any attorney who wishes to be appointed to represent indigents in criminal cases must first be “certified” as competent by passing an exam or by showing proof of his or her trial or appellate experience, attendance at continuing legal education programs or Board Certification by the State Bar of Texas.

All of the Harris County judges have agreed to limit their appointments to “certified” lawyers and the county auditor has been instructed not to pay any voucher submitted for a lawyer who is not on the approved list.

One of the most interesting and innovative methods by which counsel are selected for appointments is that found in Travis County. There, attorneys wishing appointments make formal application and must be approved by judges, for felonies, then place each attorney in once of three categories (“A,” “B” or “C” plus a capital murder group and an appellate group) based on his or her experience, years of practice and other criteria indicating legal skills.

This is not unlike “flights” of players at a golf tournament. Each new indigent case is categorized as an “A,” “B” or “C” offense based on the applicable punishment range and then an administrator appoints the next lawyer, alphabetically, on that respective list. This allows the judges to control which lawyers are on the list and what list they are on, but the actual appointment of a particular attorney to a particular case is done by someone else. This provides some “distance” between the trial judge and the attorney and removes even an appearance of favoritism and cronyism.

Public Defender System. The Texas Code of Criminal Procedure provides for public defenders in eight judicial districts, only one of which is multi-county (The 33rd Judicial District comprised of Blanco, Burnet, San Saba, Mason and Llano counties), with the rest all single-county offices (e. g., Dallas and Wichita counties).

There are, however, great differences in the organization and the scope of their operations. Wichita County (population 122,378) is the only county which seeks to have the public defender office handle all cases, other than those having a conflict of interest or other impediment. This translates into that office representing about 85 percent of all indigent defendants.

At the other end of the spectrum, Tarrant County has a single “public defender” appointed in each of that county’s eight district courts that handle criminal matters. The judge of each of these courts makes this appointment and then assigns to this “public defender” such cases as the judge deems appropriate. Commonly these amount to only a small percentage of the total indigent cases in that course and are often restricted to matters that can be disposed of quickly (e.g., obvious probation cases [young person caught joy riding], probation revocations and the like)….

The Tarrant County “public defenders” are usually considered to be half-time employees, having no central office, secretaries, investigators or other staff or resources. When support services are needed, the Tarrant County public defenders must petition the judge in each individual case, just as does any court appointed counsel.

Between Wichita County in which the public defenders office represents almost all of the indigents accused of crime and Tarrant County where the public defenders handle only a very small percentage of the cases, are other public defender offices such as those found in Dallas and El Paso counties. The Dallas County Public Defender office has an annual budget of over $3.5 million and, as of May 2000, employed 49 employees.

These lawyers work in all but two of the Dallas County felony and misdemeanor courts and they handle between 43-45 percent of the county’s indigent defense requirements. The individual courts vary in the manner and degree to which they utilize the public defender office, but that office has represented indigent clients in cases ranging from minor misdemeanors to death penalty trials.

The El Paso County public defenders office has approximately 18 lawyers on the staff and operates under a budget of about $1.3 million. That office reportedly represents about half of the indigent persons prosecuted in that county.