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The right to counsel in Texas

The Texas Constitution guarantees that, “[i]n all criminal prosecutions the accused . . . shall have the right of being heard by himself or counsel, or both . . .,” and this same promise appears word for word in Texas’ statutes. Under Texas law, an indigent defendant is entitled to appointment of counsel “in any adversary judicial proceeding that may result in punishment by confinement,” including on direct appeal. All criminal offenses in Texas, whether enacted by state statute or county/municipal ordinance, are either a felony or a misdemeanor. All felonies are punishable by incarceration. Misdemeanors can be punished by jail or by fine or by both. Class C misdemeanors are the only criminal offenses in Texas that do not carry the possibility of incarceration, and Texas law expressly provides that “[c]onviction of a Class C misdemeanor does not impose any legal disability or disadvantage.”

Children in delinquency proceedings, whose parents are indigent, are guaranteed the right to counsel at certain stages of the proceedings.

Though the federal Constitution does not require it, Texas statutorily guarantees appointed counsel to indigent defendants in some later stages of a criminal case: in any criminal case where the Court of Criminal Appeals grants discretionary review; in habeas corpus proceedings where the state alleges wrongful conviction; and in habeas corpus proceedings in death penalty cases.

How the right to counsel is administered and structured

The state’s limited involvement in the right to counsel is through the Texas Indigent Defense Commission (TIDC). TIDC is a permanent standing committee of the Texas Judicial Council – a statewide judicial coordinating body, within the judicial branch of Texas government.

TIDC operates under a 13-member governing board, six members of which are also members of the Texas Judicial Council. The members are:

  Member Appointer Term
council members supreme court chief justice (or designee) automatic while in office
court of criminal appeals presiding judge (or designee) automatic while in office
court of appeals justice governor selects from 2 while on council
county-level judge governor selects from 2 while on council
state senator lt gov selects from 2 while on council
state representative speaker of the house while on council
non-council members state senator lieutenant governor at pleasure of lt gov
house criminal jurisprudence cmmt chair automatic while in office
AJR presiding judge governor w/ senate A&C 2 years
county commissioner or constitutional county court judge of county >250,000 pop. governor w/ senate A&C 2 years
county commissioner or constitutional county court judge governor w/ senate A&C 2 years
practicing criminal defense attorney governor w/ senate A&C 2 years
chief public defender (or designee) governor w/ senate A&C 2 years

The board appoints the executive director of the TIDC, who must be an attorney and cannot have a private law practice. As of FY2019 (October 2018 through September 2019), TIDC is authorized 11 full-time positions to carry out all of its functions across 254 Texas counties.

The TIDC is required by state law to do three things: (1) develop policies & standards for indigent defense services; (2) develop a plan for counties to report indigent defense information, and then use that information to monitor the counties’ provision of indigent defense services and to make reports to state officials; and (3) make grants of state funds to counties to improve their indigent defense systems, and monitor compliance with the conditions of the grants. The TIDC does not provide direct representation of indigent defendants. The TIDC also does not have the power to force counties or judges to comply with any law, rule, standard, or policy relating to the provision of indigent defense services; all it can do is withhold state grant funds.

The only other state-level agencies with responsibilities for representation provided to indigent people are:

  • the State Counsel for Offenders, which operates under the Texas Board of Criminal Justice and is responsible for providing representation to indigent defendants who are “charged with an offense committed while in the custody of the correctional institutions division or a correctional facility authorized by Section 495.001, Government Code.”
  • the Office of Capital and Forensic Writs, which is responsible for: representing all death-sentenced defendants in state habeas corpus proceedings, without regard to whether they are indigent and presuming the office is not otherwise prohibited from providing the representation; and representing defendants in cases referred to it by the Texas Forensic Science Commission relating to forensic analysis conducted by crime laboratories.

Texas’ 254 counties are responsible for providing the right to counsel, with limited support from the state. In short, the trial level judges in each county who preside over criminal cases have almost complete authority over the systems of providing the right to counsel to indigent adult defendants. That authority is constrained, for the most part, only by the willingness of the county’s commissioners court to allocate funding. State law places responsibility for the provision of counsel to children on a juvenile board established in each county.

How the right to counsel is funded

State law requires the county in which a criminal prosecution is instituted to pay the cost of appointed counsel and all reasonable and necessary expenses of the defense at both trial and appeal. Each Texas county is governed by a commissioners court made up of four county commissioners, each elected from a precinct of the county to a four-year term, and the constitutional county judge as the presiding officer. A county’s commissioners court is both the executive and the legislative authority in the county, and so it is the county governmental body that is responsible for setting the county’s budget including funding for the provision of the right to counsel.

The Texas legislature requires TIDC to make grants of state-appropriated funds to assist counties in providing indigent defense services and to monitor the counties that receive those grants to ensure that they comply with the grant conditions. TIDC makes two kinds of grants: formula grants, and discretionary grants; and it has adopted rules about how it makes those grants. Formula grants are “funding awarded to counties through a formula approved by the Commission.” All 254 Texas counties are eligible to receive a formula grant of a base amount each year ($5,000 for FY2019), though they must apply for the grant in order to receive it. Beyond the base amount, each county is eligible to receive an additional portion of the remaining TIDC formula grant funds, calculated according to TIDC specifications. Discretionary grants are “discretionary funding awarded on a competitive basis to implement new programs or processes in Texas counties designed to improve the quality of indigent defense services.”

TIDC publishes on its website complete information, both statewide and for each county, showing the amounts of the formula grants and the discretionary grants that it disburses each fiscal year. For TIDC fiscal years 2014 through 2018, every one of Texas’ 254 counties has received a formula grant from TIDC save for two instances: Aransas County did not receive a formula grant in FY2014, and Caldwell County did not receive a formula grant in FY2018. By contrast, only 27 of the 254 counties have received a discretionary grant during any year from FY2014 through FY2018.

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.

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.

Legal authority

Texas Constitution, art. 1, § 10

Texas Administrative Code, tit. 1, §§ 173.101 through 173.402 (indigent defense grants), and §§ 174.1 through 174.28 (indigent defense policies and standards)

Texas Code of Criminal Procedure, arts. 1.05 through 1.051 (right to counsel), and arts. 26.04 through 26.06 (county appointment of counsel)

Texas Family Code, §§ 51.10 through 54.102 (juvenile court)

Texas Government Code, §§ 78.001 through 78.056 (capital writs committee and office), and
§§ 79.001 through 79.040 (indigent defense commission)

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.