Lawyers Seek to Reform ‘Ethical Minefield’ of Public Defender’s Office Controlled by Texas Prison System

Former public defenders say prison officials who had a hand in prosecuting their clients influenced and sometimes outright interfered with their defense work.


Former public defenders say prison officials who had a hand in prosecuting their clients influenced and sometimes outright interfered with their defense work.


Last week, David O’Neil stood before the Texas Board of Criminal Justice with an awkward request: He asked nine governor-appointed board members to relinquish their control over the Texas prison system’s little-known public defender’s office.

O’Neil ran the trial section at the State Counsel for Offenders (SCFO), which is overseen by the state prison board, until 2000, when he says he felt forced to resign. O’Neil is one of many former SCFO employees now urging officials to fix what appears to be an anomaly of the Texas criminal justice system: an indigent defense office for prisoners that’s controlled by the state prison board. O’Neil and other defense lawyers claim that interference and influence from state prison officials essentially made it impossible for them to do their jobs — namely, to defend poor inmates accused of committing crimes inside Texas prisons.

At their quarterly meeting on Friday, O’Neil told the prison board that it was time to get behind reforms to make SFCO an independent state agency with its own board.

“Frankly, it was an ethical minefield,” O’Neil said of his time at SCFO. “I’ve kept in touch with many of the attorneys who go through that office, and morale is bad. The same kind of problems have continued over the years. Some have even gotten worse.”

O’Neil and other attorneys claim that prison officials who had a hand in prosecuting their clients influenced and sometimes outright interfered with their defense work. O’Neil says that when he was at SCFO, he asked a prison official for money to pay for training for one of his attorneys who was about to try his first capital murder case.

“The response was, ‘Yes, you have the money, but no, I don’t think you should go,’” O’Neil told the board. “The deputy director had no ill will, but he’s not a defense attorney.”

Problems at SCFO have bubbled to the surface in recent years amid the near-implosion of Texas’ controversial civil commitment program for sex offenders.

civil commitment, civil rights, texas
Two and a half years after the Texas Civil Commitment Center opened its doors, only five men have been released – four of them to medical facilities where they later died.  Michael Barajas

While SCFO lawyers represent poor inmates accused of crimes in lockup, they also defend sex offenders that prosecutors and prison officials consider too dangerous for release into the community, even after they’ve finished their lengthy prison terms. Under Texas’ “sexually violent predator” law, prosecutors use the civil courts to force those men into a post-prison sex offender treatment program, a process called “civil commitment.” Thanks to reforms the Legislature passed in 2015, that treatment is now provided by a scandal-plagued private prison contractor operating out of an old Panhandle detention center, where men committed to the program are now indefinitely confined.

As I’ve written previously, the former head of SCFO’s civil commitment section claims she was abruptly reassigned and told to “fly under the radar” when she began challenging in court what she saw as fundamental legal flaws with Texas’ civil commitment program. For instance, prior to her reassignment, she forced the recusal of former state district court judge Michael Seiler, who once presided over the state’s only court for civil commitment cases. Seiler had bragged about keeping a gun in his lap during hearings, campaigned for the bench as a “prosecutor to judge the predators,” and was eventually scolded by the state’s judicial conduct commission for how he “berated and belittled” SCFO lawyers in his court.

Other current and former SCFO lawyers claim higher-ups have told them to back off on cases that would be inconvenient or costly for prison officials or prosecutors. In an anonymous survey recently conducted by a State Bar of Texas committee, some claimed that higher-ups had prohibited them from filing motions to assist mentally ill clients or even forced them to withdraw from certain cases. Some said they were directed to make harmful legal decisions after their bosses consulted with the state prison board that oversees the agency.

The situation got so bad that starting in 2014, the Texas Criminal Defense Lawyers Association began discouraging members from taking jobs with the office.

It’s unclear whether the Texas Board of Criminal Justice, or lawmakers for that matter, will entertain the idea of an independent prisoner defender service. The board on Friday had few questions for O’Neil, who chairs a corrections committee for the criminal defense lawyers association and presented the group’s concerns. State prison officials wouldn’t respond to my requests for comment this week. SCFO officials have in the past refused to discuss the complaints against the agency.

O’Neil assured the board that internal conflicts will persist as long as prison officials oversee and work under the same umbrella as the public defender’s office.

“We’re by no means implying any bad faith or ill intent on the part of the board members or any [Texas Department of Criminal Justice] leadership,” he said. “The problem is a structural one. It goes back more than 40 years. It may have even seemed like a good idea at the time, but the materials that we have provided to you show that this is an agency more than overdue for some change.”

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Michael Barajas is a staff writer covering civil rights for the Observer. You can reach him on Twitter or at [email protected].

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