The Fair Defense Campaign is a collaborative effort between TCJC and the Texas Fair Defense Project. The Campaign's mission is to ensure that every person is treated equally in the criminal justice system, regardless of wealth. The project works to ensure that no Texans are forced to give up their right to an attorney, and that every Texan who requests an attorney receives competent representation when they are accused of a crime.
In order to establish greater public accountability, the Fair Defense Campaign conducts local and statewide monitoring and documentation of practices that deny poor defendants access to counsel or that may significantly delay the appointment of a defense attorney.
The right to competent legal representation is a cornerstone of our criminal justice system. It is protected in both the United States and Texas Constitutions. Americans have long recognized that it is not fair to put members of the community in jail without first allowing them to have a lawyer who can help navigate the legal system and defend their liberty. The right to counsel is so essential to the fair operation of the criminal justice system that the government has a duty to provide, at state expense, lawyers to people who are accused of crime and who are too poor to hire a lawyer on their own.
Recent cases demonstrate that the right to counsel also is necessary to ensure that the courts accurately assign criminal responsibility. Exonerations of the wrongfully convicted have shown that the innocent are at risk when they don't have qualified attorneys with the skills and resources to investigate their cases and test the prosecution's evidence.
Texas has long held the unfortunate distinction of having one of the least fair and least efficient indigent defense systems in the nation. In fact, Texas has never had a single "indigent defense system" with a consistent design that meets conventional principles and standards. As a result, there are actually a vast number of different indigent defense procedures used in Texas's 254 counties. Even within a single county, there are often a number of different-often conflicting-indigent defense procedures in place.
During the 77th Texas State Legislative Session in 2001, a coalition of civil rights and community organizations worked with legislators to pass the Texas Fair Defense Act (FDA) which, for the first time, required all of the 800+ criminal courts in Texas to adopt formal indigent defense procedures. These procedures must be consistent in all courts of the same jurisdiction within any particular county (i.e., all district (felony) courts in a county must adopt consistent procedures, and all county (misdemeanor) courts must adopt consistent procedures). You can view your county's indigent defense procedures, called an indigent defense plan, at http://tfid.tamu.edu/Public/default.asp.
Although the FDA) gives judges significant flexibility in establishing their county plans, every plan is required to meet minimum standards in the following areas:
The FDA also created a new state indigent defense commission, the Task Force on Indigent Defense, to oversee the implementation of the FDA and to administer new state funding for indigent defense in the form of incentive grants to counties. Finally, to help fund the reforms required by the FDA, in 2001 the Legislature appropriated the first-ever state funding for indigent defense - at that time, approximately $12 million per year to supplement the approximately $94 million in county spending.
Although the FDA has greatly improved access to counsel for some defendants, the Act has not yet yielded significant benefits for many misdemeanor defendants and felony defendants released on bond. According to research conducted by our coalition members, three-quarters of Texas counties appoint counsel in fewer than 20 percent of jailable misdemeanor cases, with the majority of those counties appointing counsel in fewer than 10 percent of cases. The vast majority of jailable misdemeanor cases in Texas are resolved by uncounseled guilty pleas, many of which are obtained by using prosecutorial tactics which pressure defendants into entering legally invalid waivers of the right to counsel.
Facing the criminal court system without the advice of a competent defense attorney can have very serious consequences. For example, each charge of a criminal offense requires allegation and proof of specific information that is known technically as theelements of that particular offense. Only a professional trained in criminal law is fully qualified to explain the elements of a criminal charge to a defendant. Without this information, it is impossible for the typical lay person to understand the charges they face and whether he or she is guilty of those charges. It also is impossible for defendants to truly understand the all of consequences of a criminal conviction, even a conviction for a relatively minor offense such as a misdemeanor, without careful explanation by someone who is a defense advocate for defendants. The most obvious consequence is the actual sentence or penalty, but there also are collateral consequences that may not be obvious to a defendant. These collateral consequences can include problems related to obtaining or keeping permanent residency status for immigration purposes, problems related to obtaining housing or maintaining current housing, problems related to obtaining certain types of jobs, and the prospect of receiving enhancements (increased punishment) for any additional convictions the defendant may face in the future.
A criminal conviction always is a serious matter that will have life-altering consequences that can be both immediate and also unexpected. The only person who can serve as a zealous advocate for a defendant in the courts is a competent defense attorney. Judges, prosecutors, and other court officials -no matter how helpful and well-meaning-are not in a position to assist a defendant.
This is why it is very important to ensure that Texans are not forced to give up their right to an attorney, and that every Texan who requests an attorney receives competent representation when they are accused of a crime.
There have been many anecdotal accounts of judges who look at a defendant's clothes or jewelry or asked about the kind of car he or she drives before deciding whether to appoint a lawyer to their case. Indicators such as clothes, jewelry, or cars do not tell a person's true financial situation. These are unfair standards. Also, an alarming number of Texas judges refuse to appoint a lawyer when a defendant is released on bond. This is not right, and it violates state law. If this has happened to you or someone you know, please file a complaint with the Fair Defense Campaign at www.fairdefense.org.
These are the factors that a judge may use to determine whether you qualify for a court appointed attorney: (I am changing this section to list only those factors that are permissible under CCP 26.04)