State, Counties, Address Increased Costs of Indigent Defense Services
The Task Force on Indigent Defense (TFID) and its Grants Committee are meeting this month to determine whether to change the manner in which funds are distributed to counties to help offset the increased costs of providing indigent defense services, said Bell County Judge Jon Burrows, a member of the TFID.
The Texas Fair Defense Act (FDA), enacted by the 77th Texas Legislature, created the TFID to assist local governments in improving the delivery of indigent defense services. Prior to fiscal year (FY) 2002, the state did not provide any funding assistance to counties for these services, said TFID director Jim Bethke. (See related article, page ?, for comparison to other states.)
The TFID, 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 Tarrant County Commissioner Glen Whitley.
Along with developing standards and policies for counties to use when representing indigent defendants, the TFID was charged with awarding grant money to counties to help fund indigent defense services.
As of FY2004, the TFID distributes funds to 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 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. 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.
Around $13 million – including $11 million in formula grant funds and the remaining in discretionary monies – will be distributed to 218 counties in FY2005; the remaining 36 counties are eligible for state assistance through direct disbursements.
Most of the grant money is awarded through formula grants using a $5,000 floor amount and population figures, Burrows said. A working group has met to discuss the computation of the formula and consider options to base the distribution on something other than population. The group also has discussed whether to use current population figures instead of those generated by the 2000 Census and whether to increase, decrease, or continue using the $5,000 floor amount.
Since its implementation on Jan. 1, 2002, the Fair Defense Act, also referred to as Senate Bill 7 (SB7) has been subject to controversy due to the increased requirements placed upon counties and the consequential increased cost. According to TFID data, in FY2004 the funding disbursed by the state covered only 22 percent of the increased state-mandated expenditures, leaving the remaining cost to local taxpayers.
Since 2001, the approximate amount of money spent on indigent defense services in Texas, according TFID 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
Texas counties absorbed the remaining amount of increased costs:
FY02 – $15 million
FY03* – $26.8 million
FY04* – $36.3 million
*In addition to funding from the TFID, 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 and $6.4 million in FY04.
“The effect of SB7 on Bell County has been an increase in the costs of indigent defense that is only covered about one-third by the state funding,” Burrows said. The year prior to implementation of SB7, Bell County’s indigent defense costs were about $800,000. They increased to about $1,100,000 this last fiscal year.
Of this increase of about $300,000, Bell County received $116,283 from the state the first full year of FY03, Burrows said. The county received $114,973 in FY04, and the FY05 award is $123,132. In response to the overall increase of unreimbursed expenses to the majority of Texas counties, the CJCAT and its regional associations have passed resolutions presenting the following position:
Senate Bill 7 has required additional county taxpayer expense to provide indigent criminal defense services, and it has added administrative duties and reporting requirements to county offices. The present appropriation is insufficient to reimburse the county for these mandated costs… The County Judges and Commissioners Association of Texas requests that the provisions of Senate Bill 7 be revised to simplify the administrative and reporting requirements and improve the efficiency of the indigent criminal defense program. Additionally, a request will be made that the Legislature appropriate sufficient funds to compensate counties for the full cost of implementing the indigent criminal defense program or repeal Senate Bill 7.
Regarding the budget shortfall, the Task Force in its annual report asked the Texas Legislature to look for ways to continue gradually increasing state funding for delivery of indigent defense services by the counties, Bethke said. In February, the Senate Finance and House Appropriations committees received budget recommendations from work groups concerning the Task Force’s Legislative Appropriation Request for the 2006-2007 biennium.
The Senate and House recommended funding of the Task Force at $28,734,184, or 105.4 percent of 2004-05 levels, to administer and distribute grants to counties, Bethke continued. The funding increase is primarily due to the new fees created by the surety bond fee and attorney fee added last session; State Bar members are now required to contribute $65 annually for indigent criminal and civil legal services.
“The Task Force has worked closely with the Conference of Urban Counties, TAC, and the CJCAT to streamline reporting and administrative requirements of the Fair Defense Act,” said Whitley. “We still need help from the Legislature to close the unfunded mandate gap.”
The Fair Defense Act
The FDA made major changes in the way Texas provides attorneys for indigent criminal defendants including the following requirements:
