Texas Fair Defense Act

The right to counsel in criminal cases is recognized not only in the U.S. Constitution, but also in the Texas Constitution and Code of Criminal Procedure.

However, prior to 2001, Texas had no coordinated system for providing public defense services to poor people accused of crime and the reality of indigent defense in Texas was grim. A patchwork of varying local procedures governed the right to counsel, and the only thing that was certain was that every court in Texas handled indigent defense issues differently than every other court – even a court just across the hall.

In an important effort to standardize and improve indigent defense, a coalition of civil rights and community organizations worked with legislators to pass the Texas Fair Defense Act (FDA) in 2001. The FDA required, for the first time, all criminal courts in Texas to adopt formal procedures for providing appointed lawyers to indigent defendants.

The procedures required by the FDA must be consistent in all courts of the same jurisdiction within any particular county (e.g., all district (felony) courts in a county must adopt consistent procedures), and counties may adopt unified procedures that apply to all criminal courts (felony and misdemeanor) in a county.

You can view your county’s indigent defense procedures, called an indigent defense plan, on the Texas Indigent Defense Commission’s website.

Although the FDA gives local officials significant flexibility in establishing their indigent defense plans, every plan is required to meet minimum statewide standards and/or specify local procedures in the following areas:

  • prompt appointment of defense counsel
  • methods for selecting defense lawyers eligible to receive court appointments, including qualification standards
  • methods for selecting defense lawyers for appointment in specific cases
  • methods for determining defendant eligibility for appointment of counsel (indigence standards)
  • fee schedules for payment of appointed defense lawyers
  • compensation procedures for experts and investigators in cases involving indigent defendants

The FDA also created a new state agency called the Texas Indigent Defense Commission (formerly known as the Task Force on Indigent Defense) [http://www.txcourts.gov/tidc/] to oversee the implementation of the FDA and to administer a new state program for awarding indigent defense grants to counties.

Although the FDA has greatly improved access to counsel for many people accused of crimes, the law provides few mechanisms for holding counties and judges accountable for following the procedures laid out in their own indigent defense plans. TFDP frequently receives complaints from defendants who are denied counsel in violation of the FDA and their county plans. TFDP also has filed civil rights lawsuits against counties whose indigent defense practices did not comply with the FDA.