During the 82nd Legislature’s Regular Session, the appropriations bill reduced funding for indigent defense to $54,674,013 for the biennium ($27.3 million each year), which reflects $8.6 million in cuts over the biennium, a 10 percent reduction of administrative budget over the biennium ($174,100), and the loss of one FTE (staff) position. Fortunately, the Legislature restored $7.6 million in funding, the administrative budget and FTE as part of the appropriations bill passed during the First Called Session. The Legislature also continued to fund innocence projects at the four public law schools at $320,000 each year of the biennium ($80,000/school), while also providing $80,000 each year and one FTE to the Texas Task Force on Indigent Defense (Task Force) for administration and coordination of the innocence projects.
As to the substantive legislation recommended by the Task Force, virtually all the bills filed were ultimately passed. HB1754 by Gallego included several of these, including enhancing the independence of the indigent defense function at the state level by providing our office the authority to submit our legislative appropriation request separate from the Office of Court Administration, changing the organization’s name to the Texas Indigent Defense Commission, streamlining the process for creating new public defender offices, and providing guidance and authority on how to establish a managed assigned counsel program. It also includes one recommendation from the Timothy Cole Advisory Panel on Wrongful Convictions (TCAP) to require public law school innocence projects to prepare an annual report on exonerations of clients represented by the project.
SB1681 by Ellis clarifies that the Fair Defense Act applies to attorney appointments for probation revocations and appeals, specifies procedures for withdrawal of trial counsel and appointment of appellate counsel, and authorizes any magistrate to provide warnings on rights to defendants arrested for motions to revoke probation. A past recommendation of the Task Force also passed this session in SB1308 by Seliger, which allows the local selection committee in each administrative judicial region to review an attorney’s current ability to provide effective representation when the attorney is no longer eligible to represent indigent defendants in capital cases due to a single finding of ineffective assistance of counsel. The Legislature also passed HB27 by Guillen to require courts to allow a defendant in a misdemeanor case who cannot immediately pay a fine or court costs to make the payment in installments or to perform community service as payment.
Two other significant bills passed that will implement recommendations from TCAP. HB215 is designed to reduce eyewitness misidentification, which is the leading cause of wrongful convictions. It will require all Texas law enforcement agencies to adopt and implement detailed written policies and procedures for the conduct of photo and live lineup identification procedures that incorporate best practices supported by research. SB122 modifies the requirements for granting motions for post-conviction DNA testing by removing certain conditions regarding the reasons why biological evidence was not tested previously, so that testing of any previously untested biological evidence may be granted.
More detailed summaries of the above bills and a complete listing of all bills passed related to indigent defense are available on our legislative information page at http://www.txcourts.gov/tfid/legislative82.asp.
H – By Wesley Shackelford, Deputy Director/Special Counsel, Task Force on Indigent Defense