All data is current as of 2013, unless otherwise noted.
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How the right to counsel is administered and structured
Branch of government: judicial
Texas’ 254 counties are responsible for providing the right to counsel, with limited support from the state.
The state’s limited involvement in the right to counsel is through the Texas Indigent Defense Commission (TIDC). TIDC is a standing committee of the Texas Judicial Council – a statewide criminal justice coordinating body.
TIDC itself has a 13-member governing board. Eight members are ex officio members of the Judicial Council: the chief justice of the Supreme Court of Texas (the state court of last resort on civil matters); the presiding judge of the Court of Criminal Appeals (the state court of last resort on criminal matters); the chair of the House Criminal Jurisprudence Committee; two members of the Senate appointed by the lieutenant governor; one member of the House of Representatives appointed by the House speaker; one Court of Appeals justice appointed by the governor; and one county court judge also appointed by the governor. The governor appoints five additional members with the advice and consent of the Senate: one presiding district court judge; two county court judges or county commissioners (one of which must represent a county with a population greater than 250,000); one practicing criminal defense attorney; and one chief public defender.
TIDC is authorized to set standards and policies related to, among others, attorney performance, attorney qualifications, training, caseload controls, indigency determinations, contracting, and attorney compensation. TIDC serves as a clearinghouse for Texas indigent defense data and provides technical assistance to counties.
In 2010, the state created the Office of Capital and Forensic Writs to represent those under sentence of death in their state post-conviction habeas corpus and related proceedings.
How the right to counsel is funded
Percentage of local funding: 87%
Percentage of alternative funding: 0%
Counties and cities are responsible, at the outset, for funding right to counsel services.
Limited state funding is distributed to counties through the Texas Indigent Defense Commission (TIDC) on an annual basis. Counties are required to submit an annual indigent defense plan to TIDC indicating how the county will meet TIDC standards, and in return TIDC disseminates state funding, calculated according to a formula to determine the amount each county receives, to offset the cost of providing right to counsel services. Importantly, TIDC also awards discretionary single- and multi-year grants to counties to fund innovative direct client services.
The methods used to provide public counsel
The vast majority of the 254 counties in Texas rely on assigned counsel systems administered by the judiciary, in which private attorneys are paid either on an hourly rate or at a set rate per case.
Even in those counties with some form of public defender office, the choice remains with each trial judge as to whether to assign cases to the local office or appoint a private attorney. It is therefore quite possible for several or even all judges in a county to ignore the existence of a public defender office and to assign cases instead to private counsel under contract directly with the court.
More so than any other state, Texas has increasingly experimented with providing indigent defense services on a regional, multi-county basis, and often these regional defender systems are exclusive to certain types of cases. For example, the Lubbock Regional Capital Defender Office represents clients in death penalty cases in 94 counties scattered across the state. Similarly, Bee County has combined resources with neighboring Live Oak County and McMullen County to create a regional defender office to handle adult felonies and misdemeanors, while juvenile delinquency and mental health matters are still handled by the private attorney model so prevalent in the rest of the state.
The state Office of Capital and Forensic Writs represents people who have been sentenced to death in their state post-conviction habeas corpus and related proceedings.
For those incarcerated in the Texas Department of Criminal Justice (TDCJ), the TDCJ’s own state office of State Counsel for Offenders represents them at the trial level of any offense allegedly committed while incarcerated in the TDCJ and also provides legal assistance in appeals, discretionary writs, civil commitment proceedings, and immigration status.
Texas Government Code, §§ 79.001 et seq.
Source of data: original research conducted by Sixth Amendment Center staff, augmented by the Texas Indigent Defense Commission’s FY 2013 Annual and Expenditure Report, January 2014, and other public materials on the TIDC website.