Attorney shortage threatens Texas indigent right to counsel

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Four years ago, Bandera County Judge Richard Evans noticed his rolodex of criminal defense attorneys had shrunk to single digits, threatening his ability to offer legal counsel to poor residents accused of crimes.

“I thought, ‘something’s gotta give,’” Evans said. “We have to have somebody representing these people.”

The U.S. Constitution guarantees the right to an attorney, but fulfilling that promise has become increasingly difficult across rural Texas, where the number of criminal defense attorneys has shrunk 27% over an eight-year period, prompting a surge in attorney caseloads.

Evans, who is an appointed member of the state’s indigent defense board, banded together with neighboring county leaders to form The Hill Country Regional Public Defender Office to handle the growing caseload. That system is not the norm in Texas, where 156 rural counties are not served by a public defenders office, and most rural Texans accused of a misdemeanor do not have an attorney at all, according to data provided by The Texas Indigent Defense Commission, which oversees the state’s public defense system.

As lawmakers consider how to allocate their $24 billion budget surplus over the next biennium, defense attorneys, local officials and legal scholars are calling on the Legislature to inject millions of dollars into rural public defense and to create a pipeline to draw fresh law school graduates to rural, underserved areas.

The Texas Indigent Defense Commission is asking for $35 million over the next two-year budget cycle to fund new rural public defense offices in about a third of counties that currently lack one. A portion of those dollars would also help mid-sized and larger counties improve their indigent defense systems.

Scott Ehlers, the commission’s executive director, is also pushing for $8.9 million to create internships, fellowships and a student loan repayment program for law school graduates who work in underserved areas. That funding could make rural public defender jobs more attractive to young professionals who typically move to urban areas.

The funding request, which Ehlers articulated before state senators last month and is expected to present to a House appropriations committee on Thursday, comes as the commission faces a $10 million annual budget shortfall because of an unexpected decline in court fee collections, which fund a portion of the commission’s grant programs. That shortfall prevented the commission from funding $7 million worth of counties’ public defense needs last year, Ehlers said.

“We can’t start new offices because we are tapped out,” he said.

Counties seek state support

The commission’s latest funding request doesn’t go far enough to support counties who are legally required to provide indigent defense but given few dollars to do so, county officials said.

Rick Thompson, program director at the County Judges and Commissioners Association, told the Senate Finance Committee they should provide $100 million more per year for public defense, a sum that would allow counties to share public defense costs equally with the state. Currently, counties are saddled with about 90% of the costs.

“We work every session to ask for more funding,” Thompson later told The Texas Tribune. “We’d like it to at a minimum be a 50-50 split because it’s getting to the point where it’s unmanageable.”

Thompson also warned the senate committee that other states that have failed to adequately fund indigent defense have been sued. “We certainly hope we don’t end up down that road,” Thompson said.

Counties are already struggling with understaffed and overcrowded jails that mostly house people who have not yet been convicted of a crime. The overflowing population has led some counties to outsource their pretrial detainees to neighboring states, costing millions of taxpayer dollars.

The lack of sufficient public defense attorneys slows down judges’ dockets and can leave people languishing in jail longer than needed. In Val Verde County, attorney David Martinez has noticed that court-appointed criminal defense attorneys don’t always show up to arraignment or plea hearings, forcing judges to delay court dates. That makes it harder to efficiently move through the docket and prompted Val Verde County to seek state dollars to join the Far West Texas Regional Public Defender Office.

Texas counties that do not have a public defender office typically rely on private attorneys who offer legal services for a fee set by the county. Fewer private attorneys have been willing to take on indigent cases in recent years, a 2024 state-funded study found.

“I understand the irony of a prosecutor advocating for money for a public defender office, but at the end of the day it would help the county carry out its constitutional obligation,” said Martinez, who prosecutes misdemeanor cases in the West Texas border county. “It would save the county hundreds of thousands of dollars in the long run.”

Texas ranks 46th in the nation in dollars spent on public defense for poor local residents, according to national nonprofit organization The Sixth Amendment Center. In stark contrast to that, the state has fully funded indigent defense for undocumented immigrants arrested through Operation Lone Star, the governor’s immigration crackdown launched in 2021.

That funding discrepancy is troubling to state officials on both sides of the aisle. Sen. Royce West, a Dallas Democrat, grilled Ehlers on the discrepancy, accusing him of making a “judgement call” to prioritize OLS defense over counsel for Texas citizens. However, the commission was directed by the Legislature to fund OLS cases and appropriated $41 million for that purpose.

Evans, a Republican county judge, likewise called the gap problematic.

“It seems that we are willing to spend more state money for people who shouldn’t be here than our own citizens,” said Evans. “That is a sore spot for me.”

A two-tiered justice system

In March 1963, the U.S. Supreme Court issued a landmark, unanimous decision in Gideon v. Wainwright that the Sixth Amendment of the U.S. Constitution guarantees the right to legal counsel for criminal defendants. How states go about providing that representation to indigent individuals has been left to their discretion, and Texas has delegated most of the decisions — and associated costs — to counties.

Over the years, rural areas have been hit particularly hard by a shortage of attorneys, as lawyers in public defense are retiring and fresh graduates are choosing to live in more urban areas or practicing other areas of law.

A 2024 survey of rural county stakeholders conducted by Texas A&M’s Public Policy Research Institute found that 71% of respondents said availability of attorneys is a significant issue. The proportion of “overburdened” attorneys in rural counties also grew, from 18% in 2015 to 27% in 2022.

“There are not enough hours in the day and in the year, even if the lawyer never went to sleep and worked every hour of the day, to provide effective representation,” a 2023 report on Nueces County noted.

Texas’ geographical differences mean that a person’s access to a fair criminal proceeding could be influenced by where they reside.

In rural counties, 51% of misdemeanor defendants have no attorney, compared to just 4% in urban counties, according to 2023 data provided by the Texas Indigent Defense Commission. Ehlers said multiple factors could contribute to that discrepancy, including the different standards for indigency across counties and a defendant’s likelihood of requesting counsel. State law also gives rural counties three business days to provide legal counsel to indigent defendants who request a lawyer, while in urban counties, legal counsel must be provided in 24 hours.

“We have a justice by geography system,” said Pamela Metzger, a law professor and director of the Deason Criminal Justice Reform Center at Southern Methodist University in Dallas. “People are spending time in jail without a lawyer because they choose to live in the heartland. We should be ashamed of that.”

Lawmakers tried to address the rural-urban gap through the 2001 Texas Fair Defense Act, which requires counties to adopt formal procedures for the appointment of counsel to indigent defense. Since the state’s indigent defense commission began monitoring for compliance with the law in 2010, only one county passed all of the commission’s standards upon initial review.

Routine failures in indigent defense happen across the state, said former commission executive director Geoff Burkhart.

“Sometimes judges are not giving people a chance to request counsel, other times it happens so quickly,” Burkhart said. Often, Burkhart said, judges encourage defendants to work out a deal with a prosecutor before they have an attorney. “That’s contrary to the U.S. Constitution, but it happens all the time.”

Will lawmakers fund solutions?

For Evans, the Hill County Regional Public Defender Office has become the solution to the challenge of providing constitutionally mandated indigent defense. Established in 2021 to serve five rural counties in Central Texas, including Bandera, the office uses a combination of state and county dollars to employ attorneys and investigators to handle misdemeanor and felony cases against people who can’t afford an attorney.

“It keeps our court docket moving because public defenders are there in court and can start the process immediately,” Evans said, contrasting the regional public defender office with his old system of relying on a handful of private attorneys from out of town — who Evans said often lagged on their cases. “We don’t have to get someone from San Antonio or Kerrville.”

More rural counties have banded together to create public defender offices in Texas to address their respective attorney shortfalls. Ten such offices now exist, covering 56 rural counties and three mid-sized counties. Two additional rural counties have their own public defender office.

In rural counties, the state commission funds two thirds of the cost of those offices, while the counties chip in the rest.

“We maintain a staff of solid attorneys and get things done,” said Karli Kennell, chief public defender for the Hill Country Regional Public Defender Office, which Kennell said has handled 15,079 cases over the past four years.

But public defenders offices said they need more state money to do their jobs. The Brazos County Public Defender Office last year applied for additional state dollars to fund a mental health division and juvenile division to address indigent defendants with mental illness as well as young clients, but the commission didn’t have the funds to support it, Brazos County chief public defender Nathan Wood said.

“It’s not unusual for us to take on a case from a private attorney who loses interest or doesn’t know what to do with a mentally ill client,” Wood said. “If we had a mental health division, we could identify those cases more quickly.”

Recruiting attorneys to live in rural Texas has also been a challenge. To address that, some advocates have suggested that the Legislature fund internship and loan repayment programs that would incentivize lawyers work in rural parts of the state. In 2023, House Bill 4487 and Senate Bill 1906 were filed to give lawyers up to $180,000 to repay student loans if they practice criminal law in a rural area for four years.

Those bills stalled out in committee. A similar proposal is expected to be filed this year as part of an omnibus bill Sen. Judith Zaffirini, D-Laredo, has agreed to carry, Ehlers said. The bill hasn’t been filed as of Wednesday afternoon

Metzger likened the proposed program to the Texas Physician Education Loan Repayment Program, run by the Texas Higher Education Coordinating Board.

“Let’s use what we are already doing successfully for doctors and apply it to lawyers,” Metzger said. Last session, TIDC requested $70 million for the current biennium for public defender offices, but the Legislature funded only $7.5 million for that purpose. The failure to obtain funds dates back even earlier. For the 2014-15 biennium, the commission requested $135.5 million to close the funding gap from what counties spent prior to the implementation of the Fair Defense Act. Lawmakers did not fund that request.

Some stakeholders recognize fully funding indigent defense is a lofty undertaking, but failing to do so would disproportionately harm rural communities.

Evans says the issue’s crux may be a lack of urgency from state leaders.

“I just hope the Legislature will help us out,” Evans said, adding that lawmakers are considering programs with heftier price tags, such as a $250 million incentive to increase film production in Texas. “If we can fund the movie industry, maybe we can fund indigent defense, too.”

Disclosure: Southern Methodist University has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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