Counties seeking their share of some $12 million budgeted by the Texas Task Force on Indigent Defense (Task Force) for FY2007 must submit their applications online by Oct. 23.
Bell County Judge Jon Burrows, who serves on the Task Force and its Grants and Reporting Committee, said he “is pleased with the new budget for the Task Force” approved at the Task Force’s August meeting.
“Tarrant County Commissioner Glen Whitley and I are the only members of the Task Force who serve on commissioners courts,” Burrows said. “We bring the needed perspective of the funding arm of the county to this group.”
Online submission for FY2007 funding is available at http://tfid.tamu.edu.
The Texas Fair Defense Act (FDA) enacted by the 77th Texas Legislature created the Task Force to assist local governments in improving the delivery of indigent defense services. Prior to FY2002, the state did not provide any funding assistance to counties for these services, said Task Force Director Jim Bethke. Along with developing standards and policies for counties to use when representing indigent defendants, the Task Force was charged with awarding grant money to counties to help fund indigent defense services.
Approximately 90 percent of the grant money is awarded through formula grants using a $5,000 floor amount and population figures generated by the Texas Data Center’s most recent population estimate. Each year the Task Force usually sets its initial allocation lower until the final unexpended funds are carried over from actual disbursements to counties based on the previous year’s Indigent Defense Expenditure Reports (IDERs), said Bryan Wilson, Task Force grants administrator. FY2006 IDERs are due to the Task Force by Nov. 1.
The Task Force, a standing committee of the Texas Judicial Council, includes eight ex officio members and five members appointed by the governor, along with a support staff. Commissioners courts are represented by Burrows and Whitley.
The Task Force currently dispenses funds through formula grants, discretionary grants, extraordinary disbursements and direct disbursements (see category descriptions, page 20). At the August Task Force meeting, Whitley proposed a fifth funding category, equalization disbursements, to help “equalize the burden,” Burrows said.
With the current system, formula grants may reimburse “County X” for almost all of its additional costs but only cover 10 percent of “County Y’s,” Burrows explained. Ideas are being developed on a mechanism to provide more funding to counties in the same situation as County Y.
“We’ve attempted to get as much reimbursement back out to the counties as we possibly can,” Whitley said. “We hope this way we can get everyone up to a minimum reimbursement of their excess costs.”
The Task Force, which has earmarked $3 million for equalization disbursements, will begin developing procedures for this category at its November meeting. Counties that submit late IDERs may miss the opportunity to participate in this special disbursement.
FY2006 Recap
During the last fiscal year the Task Force marked several accomplishments with some affecting individual counties and others potentially impacting counties statewide.
Four public defender programs were launched including the first-ever regional defender office covering Edwards, Kinney, Terrell and Val Verde counties. Kaufman, Willacy and Travis counties will also establish public defender offices using a combination of Task Force and county funds.
The Texas A&M University Public Policy Research Institute released a study following examination of criminal-case processing in Harris, Bexar and El Paso counties. Researchers found that better technology led to earlier release of people arrested but who in the end would not be charged with crimes. The full study, Evaluating the Impact of Integrated Electronic Systems in Criminal Case Filings: Closing the Paper Trap, is available at http://www.courts.state.tx.us/oca/tfid/Resources.asp.
Two counties were reimbursed for extraordinary expenses which constituted “a financial emergency.” Galveston County received $84,054 for costs associated with a capital murder case, while Haskell County received $7,500 for general increased costs. The Task Force has budgeted $350,000 for extraordinary expenses for FY2007. Counties considering applying for these funds can review the extraordinary expense policy at http://www.courts.state.tx.us/oca/tfid/Extraordinary_Expense_Disbursement_Fund_Procedures.asp.
The Task Force developed recommendations to the 80th Legislature for the improvement of the indigent defense system. A complete list of the recommendations is available at http://www.courts.state.tx.us/oca/tfid/Legislative.asp.
The Task Force developed minimum standards for the use of contract defender programs to provide indigent defense services.
The Fair Defense Act
The FDA, also referred to as Senate Bill 7 (SB7), made major changes in the way Texas provides attorneys for indigent criminal defendants including the following requirements:
Prompt attorney appointment requirements;
Each accused person will be brought before a magistrate within 48 hours of arrest for proceedings under Article 15.17 of the Code of Criminal Procedure.
When a defendant submits the required documents for the appointment of counsel, the request and documents required will be transmitted to the appointing authority within 24 hours of the request.
The appointing authority will appoint counsel for eligible defendants within one working day of receiving the request (counties with population of 250,000 and above) or within three working days of receiving the request (counties with population under 250,000).
Countywide procedures outlining how courts will appoint counsel from public lists using a rotation system unless the county chooses an alternative system or a public defender system;
Procedures and objective financial standards for determining when a criminal defendant is indigent;
Objective attorney qualifications set by judges ;
Payment to attorneys using a published fee schedule;
Annual submission of expenditure reports showing the amount of funds spent on indigent defense and biannual submission of countywide plans, which must meet statewide standards and be submitted to the Office of Court Administration every odd numbered year by November 1; and
The development of similar plans for juvenile cases.
The Task Force has helped fund these changes by distributing funds to eligible counties in the following four categories: Formula Grants, Discretionary Grants, Extraordinary Disbursements and Direct Disbursements, said Bethke.
Formula Grants supply the majority of funds used to support counties in providing indigent defense services. They are distributed based on a $5,000 floor award amount and each county’s population.
Discretionary Grants are competitive grants to allow counties to implement innovative indigent defense programs.
The Extraordinary Disbursements category of funding was created to assist counties with unusually large indigent defense expenditures that demonstrate a severe financial hardship.
Direct Disbursements allow small counties to receive funding for indigent defense should they incur expenses without having to apply for a formula grant. Under some conditions the counties can receive double what they would have under the formula grant. The County Judges and Commissioners Association of Texas (CJCAT) and Texas Association of Counties (TAC) assisted the Task Force in developing this model of funding to ensure that counties that traditionally have low indigent defense costs and do not apply for the grant are still covered if they incur costs.
A fifth category, equalization disbursements, is under consideration.
The Cost of Indigent Defense
Since 2001, the approximate amount of money spent on indigent defense services in Texas, according Task Force reports, is as follows:
$91.7 million in FY01 (all county funds, prior to FDA implementation)
$113.9 million in FY02 – $106.7 million in county funds and $7.2 million in state funds
$130 million in FY03 – $118.5 million in county funds and $11.5 million in state funds
$139.6 million in FY04 – $128 million in county funds and $11.6 million in state funds
$141.6 million in FY05 – $128.2 million in county funds and $13.3 million in state funds
At press time, FY06 figures were not yet available.
Texas counties absorbed the remaining amount of increased costs (excluding discretionary grants):
FY02 – $15 million
FY03* – $26.8 million
FY04* – $36.3 million
FY05* – $35.5 million
FY06 figures are not yet available.
*In addition to funding from the Task Force, courts may order defendants who can afford it to reimburse the county for all or part of the costs of their appointed attorney. Counties reported collecting $4.4 million in FY03, $6.4 million in FY04 and $7.2 million in FY05.
Cost Versus Benefit
Since its implementation on Jan. 1, 2002, SB7 has been the subject of controversy due to the increased requirements placed upon counties and the consequential increased cost.
“The Fair Defense Act codified the existing case law related to indigent defense that counties were already required to follow,” said Wesley Shackelford, Task Force special counsel. “It did set time frames for the appointment of counsel, and many counties experienced increased cost because of the time frames.”
According to Task Force data, in FY2004 the funding disbursed by the state covered 22 percent of the increased state-mandated expenditures, leaving the remaining cost to local taxpayers. In FY2005 the funding disbursed by the state covered approximately 27 percent of the increased state-mandated expenditures, Wilson said. In other words, counties are paying approximately 72 percent of the increased costs.
However, according to the Task Force, the increased cost could lead to some gain. For example, some potential benefits to counties of having timely appointment of indigent defense counsel include reduced jail costs when attorneys are available to promptly dispose of cases or move to reduce bonds on clients who remain in jail, Shackelford said. Effective representation could also lead to reduced or eliminated jail sentences, thereby also saving counties money in jail costs.
Generally speaking, indigent defense may not benefit counties as much as it enriches the lives of citizens, Wilson said.
“It would be difficult to prove that the county government would be better or worse with or without the law,” he continued. “Very few laws provide the poor in our society with equal standing to the rich as the constitutional requirement of court-appointed counsel before the government can deprive a person of liberty.”
How Counties Can Help
Texas counties can do their part to improve indigent defense by keeping good records to demonstrate their compliance with the FDA, Shackelford said. These records can then be used to conduct self-assessments, which add accountability to the indigent defense process.
“Court personnel may have an internal belief of performance based on experience with a part of the indigent defense process, but cannot know they are really in compliance unless they conduct some type of self-assessment based on data,” Shackelford said.
Counties also need to ensure that they maintain fiscal and program records consistent with the FDA and the indigent defense plan submitted to the Office of Court Administration, Wilson said.
For additional information on the FDA and the grant process, visit the Task Force Web site at http://www.courts.state.tx.us/tfid or contact Task Force Director Jim Bethke at 512-936-6994.
By Julie Anderson