Texas Fair Defense Act (SB7)
April 2005State, 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 countys 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 Countys 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 Forces 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:
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 requiring the appointment of attorneys 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 qualifications by judges to be used for appointed attorneys;
payment to attorneys, experts and investigators using a published fee schedule;
annual reports and submission of countywide plans, which must meet statewide standards and be submitted to the state every year by Jan. 1; and
the development of similar plans for juvenile cases.
The FDA required Tarrant County to completely overhaul the way it processes indigent defendants, said Holly Webb, whose job - coordinator of attorney appointments - was created to help implement SB7.
Everything has been moved to a quicker pace, Webb said. The transition required a great deal of training, involving 30 municipalities. Attorney training also was required, as attorneys must now contact their indigent clients by the end of the first working day following the day of the appointment.
I think it went as smooth as could be expected, Webb said.
The TFID conducted an online survey that was completed June 2004 of all counties regarding the implementation of FDA provisions, Bethke said.
The respondents noted improvements brought about by the law, including quicker appointment of counsel, greater countywide consistency in indigent defense practices, and decreased resetting of cases for unrepresented defendants, Bethke said.
The main problem areas reported involve the shorter time frames for appointing counsel and the process of determining indigence, he added. Many respondents indicated that these two areas were driving up costs because more people were being found indigent, thus requiring counsel to be appointed.
Overall, there has been enormous progress made since the passage of the FDA, said Bill Beardall, executive director of the Equal Justice Center, based in Austin. We can really be encouraged by the good efforts that have been made by a lot of counties who have demonstrated that the indigent defense system really can be modernized in a way thats cost effective.
While there has been a dramatic step forward, other counties, however, have struggled, Beardall continued. Some of the poorer counties, rural counties, and counties with low population are having a more difficult time.
The counties that have made the most progress are those that continue to adopt modern systems and appoint lawyers based on objective qualifications, Beardall said.
I am greatly impressed with the overall improvement in indigent defense, said Bob Spangenberg, president of The Spangenberg Group, a national research agency related to indigent defense services, based in West Newton, Mass. Spangenberg has visited Texas several times since 2001.
While I clearly believe that substantial additional funds are needed in Texas to achieve a model system, I am highly encouraged by the new progress made since the adoption of SB7, he said.
FDA Impact Studies
Several studies have been conducted to assess the effect of the FDA on counties. In November 2003, House Speaker Tom Craddick, R-Midland, charged the House Committee on County Affairs to perform an interim study to consider the increased costs associated with court administration and security as it relates to the implementation of the Fair Defense Act and heightened security requirements.
In 2004, the TFID funded a study by Texas A&Ms Public Policy Research Institute, with the assistance of Dr. Tony Fabelo, to examine how the FDA requirements have impacted indigent service delivery and how county implementation strategies may affect counties effectiveness in meeting these requirements.
The House interim study noted the following trends since the FDA was adopted:
Texas is providing more defendants with indigent defense.
Statewide spending is up 50 percent.
There is increased public access to local practices and expenditures. Every indigent defense plan (adult and juvenile) and every countys indigent defense expenditures are posted electronically and available to anyone with Internet Access at http://tfid.tamu.edu/Public/default.asp.
The report also noted that while expenses are continuing to rise throughout Texas, the average rate of increase from year to year is lessening. However, as the study indicates, state funding is not keeping pace with the increased demands for indigent services on county government. In addition, more people are continuing to qualify for indigent defense services.
The House Committee on County Affairs recommended a possible increase in appropriations for indigent defense to relieve some of the financial burden local government is shouldering to meet state and federal law requirements pertaining to indigent defense services.
The A&M project, titled Study to Assess the Impacts of the Fair Defense Act on Texas Counties and released in January 2005, discussed overall trends and provided an in-depth analysis of systems in four counties Cameron, Collin, Dallas and Webb, revealing the following conclusions:
1. Texas is providing more defendants with indigent defense since the FDA was adopted. Since the Fair Defense Act was implemented, the number of individuals receiving appointed counsel has increased nearly 40 percent. In FY2004, 371,167 adult defendants were served, up from 278,479 during the first year of the FDA. Overall costs increased 20 percent during the same timeframe, rising from $114 million in 2002 to $136 million in 2004. Despite these overall increases, however, attorney costs per case have risen a modest 3.3 percent per year just enough to keep pace with inflation.
2. The counties studied are all complying with the prompt appointment provisions of the FDA. Wide variation was observed in the strategies and timelines adopted by the study sites to comply with the FDA. Two counties (Dallas and Webb) have had nearly two decades of experience appointing counsel to indigent defendants within days of arrest. Cameron and Collin Counties, by contrast, had to implement entirely new indigent case processing procedures to meet the FDA timeline. Though local procedures vary, the study sites have all found ways to successfully appoint counsel within two to five days.
3. Counties have flexibility in how they implement FDA requirements, and their choices may impact costs. The FDA provides counties with both opportunity and responsibility to craft their own response to the law. It provides flexibility to implement indigent defense processes matched to the unique values, needs, and resources of each Texas community. This research confirms that the study sites have each met the new indigent defense standards in different ways, and the particular strategies adopted have implications for cost. Furthermore, local values held by the judiciary and other stakeholders determine the extent to which cost is a core consideration in the design of indigent defense systems.
The report, available at http://www.courts.state.tx.us/oca/tfid/whatsnew.htm, examines key decision points and makes observations where costs are affected, such as:
Judges should provide strong leadership for a problem-solving mindset and collaboration among all key stakeholders.
Julie Anderson, Editor
Counties must develop data systems capable of providing information and feedback to support ongoing monitoring and improvement of indigent defense systems.
Counties should consider innovative approaches such as video magistration to ensure FDA standards are met without the costs of high-speed transportation of defendants from municipal jurisdictions to county jail.
Counties should provide ample opportunities for arrestees to have bond set or reviewed before detaining defendants.
Counties should continue to develop new strategies to accurately discriminate between defendants who need assigned counsel versus those that are capable of paying for their own defense.
Public defender offices appear to offer advantages in terms of both cost and quality when compared to rotation appointment systems. Attorney fees per case are lower in public defender systems.
Expenditures on supports such as investigators, expert witnesses, and other direct litigation costs are higher in public defender systems.
Indigent defense costs are more predictable year-to-year.
Public defenders reduce administrative burden on the judiciary.