The Texas Fair Defense Act of 2001 requires all Texas courts to establish procedures to provide court-appointed lawyers to indigent defendants. This legislation also established the Task Force on Indigent Defense, now the Texas Indigent Defense Commission (TIDC or Commission) to oversee indigent defense services and provide state grants to counties.
Half of all criminal defendants in Texas are deemed indigent, and this number is growing, according to “Justice Beyond the Cities: The State of Rural Public Defense in Texas,” a study conducted between September 2023 and May 2024 by the Public Policy Research Institute at Texas A&M University.
As explained in the study, counties choose from the following four methods of counsel assignment; counties may also combine methods of assignment:
- Public Defender Office (PDO), which employs full-time counsel and staff who serve indigent defendants of that county (or a cluster of counties, called a Regional PDO) under the supervision of a Chief Public Defender.
- Managed Assigned Counsel (MAC) Program, in which the judges designate a county department, nonprofit organization, or bar association, to appoint, pay, and monitor private counsel who represent indigent defendants.
- Contract Counsel, through which the government contracts with a private attorney or law firm for a specified amount of money, time, and/or number of cases.
- Private Assigned Counsel, which involves the judicial assignment of a private attorney to represent an indigent defendant. The attorney is chosen from a pre-approved list via a system of rotation, often referred to as “the wheel.” This method of attorney assignment is the most prevalent around the state.
County Impact
The TIDC maintains statistics on the amount each county receives in state funding and how much each county spends on indigent defense, with data available at https://tidc.tamu.edu/public.net/default.aspx.
Generally speaking, state funding covers 10 percent to 12 percent of the cost, with counties paying 88 percent to 90 percent of the cost.
The TIDC is led by 15 Commission members and 20 staff. Williamson County Commissioner Valerie Covey and Bandera County Judge Richard Evans serve on the Commission.
According to the latest data available, in 2023, Bandera County spent $147,659.41 on indigent defense and received $25,283.00 in state formula grant funding, not including TIDC’s indirect support for Bandera County through its two-thirds sustainability funding of the Hill Country Regional Public Defender Office, which provides representation in Bandera County.
“We do not have enough attorneys to go around in rural Texas, and the cost is eating up our ad valorem tax,” Evans emphasized. “Without the PDO, we would only have two attorneys to draw from.”
The TIDC is facing a $10 million annual budget shortfall due to an unexpected decline in court fee collections, which fund a portion of the Commission’s grant programs. This deficit prevented the Commission from funding over $7 million worth of counties’ public defense needs last year, according to TIDC Executive Director Scott Ehlers.
During the 88th Legislative Session, $154,964,080 was appropriated for indigent defense, including over $41 million in new funds for Operation Lone Star indigent defense services. The TIDC is asking lawmakers for a total of $248,610,092 for the next two-year budget cycle.
In testimony before the Senate Finance Committee, CJCAT Program Director Rick Thompson said at least $100 million more per year is needed, which would equate to an approximate 50-50 split in state funding.
Other states that have failed to sufficiently fund indigent defense have been sued, Thompson told the Senate Finance Committee.
Members of Commissioners Courts worked with the CJCAT to develop the following resolution:
State Funds for Indigent Criminal Defense and Magistration Costs
WHEREAS, the right to assistance by legal counsel is guaranteed by the U.S. Constitution; and
WHEREAS, the State of Texas is required to implement this right and provide legal counsel to indigent criminal defendants; and
WHEREAS, the Texas Fair Defense Act, adopted by the Texas Legislature in 2001, implements this right and requires certain procedures and attorney appointments; and
WHEREAS, the Texas Legislature has failed to provide sufficient funding to offset the additional costs of the Fair Defense Act and has shifted this cost to county taxpayers; and
WHEREAS, county expenditures for indigent criminal defense have increased over 200 percent since the adoption of the Fair Defense Act; and
WHEREAS, the state funding is totally inadequate, providing approximately 12 percent of the indigent defense costs and none of the costs for criminal magistration and bail proceedings; and
WHEREAS, indigent criminal defense and criminal magistration are state responsibilities that should be adequately funded on a statewide basis, not a burden overwhelmingly borne by local property taxpayers; and
WHEREAS, the recent passage of legislation to require additional bail bond proceedings has increased the costs to local taxpayers without state funding;
NOW, THEREFORE, BE IT RESOLVED that the County Judges and Commissioners Association of Texas does hereby request that the Texas Legislature fully fund the cost of indigent criminal defense, which has cost local taxpayers over $3.2 billion from 2001 through 2021, and fully fund the additional cost for criminal magistration imposed by the Special Session of the 87th Texas Legislature.
