Defense Denied

Public defender Donnie Yandell walked into a West Texas courtroom for the arraignment of defendants facing misdemeanor charges one day and witnessed some odd negotiations that deeply disturbed him. “I was flabbergasted,” said Yarnell, an attorney with the Caprock Region Public Defender’s Office in West Texas. “The judge asked this person if they wanted a court-appointed attorney. Before the person responded, the judge cut in and said, ‘Well, if, if you want a court-appointed attorney, you can talk to the prosecutor first and see what the offer is. And if you don’t like the offer, then you’re more than welcome to have a court-appointed attorney.’”

The scenario the judge proposed appeared to violate a Texas law that requires that an arrested individual be immediately allowed to apply for a public defender if they can’t afford an attorney. That application must be approved or denied before any prosecutor communicates with the defendant about their case. Then the prosecutor made an offer that seemed like severe punishment for a “minor misdemeanor offense,” Yandell recalled. “One so bad that I don’t think any defense attorney would’ve ever agreed to it. And the judge says, ‘Yeah, you might want to really consider that offer because that’s about as good as you’re going to get.’”

Criminal justice advocates say that the same unorthodox and likely illegal process happens all across Texas—usually in smaller counties—and such shortcuts are making a mockery of laws that require that all accused people in Texas be afforded the right to an attorney. “Counties are putting in place systems to provide indigent defense, and then they are literally not doing it to the point that there is no right to counsel in misdemeanor cases,” said Andrew Davies, director of research at Southern Methodist University’s Deason Center, which studies criminal legal reform. “It’s incredibly shocking to me to be able to say that in parts of Texas, there is no real right to counsel in misdemeanor court.”

At any one time in Texas, about 5,000 (sometimes as high as 6,000 or more) people are in county jails being held pretrial for misdemeanors—often minor offenses like trespassing, petty theft, writing a bad check, DUI, or possession of marijuana. People who can afford an attorney often serve no time for such offenses or get them dropped.

What people unable to afford a lawyer may not realize is that they have a legal right to representation and that pleading guilty to a misdemeanor can lead to penalties that cause unemployment, insurmountable debt, homelessness, surrender of children, or deportation if the defendants are immigrants.

The Texas Indigent Defense Commission (TIDC) serves as a watchdog by reviewing records and conducting interviews in a very small number of counties each year to see whether they are meeting the legal obligations to provide indigent defendants with information and applications for free legal help. But in the last decade, TIDC has audited only 46 of Texas’s 452 counties, although most counties receive follow-ups to see if they have followed agency directives to fix sometimes massive problems. 

Another way TIDC measures whether counties are meeting requirements for providing indigent defense is by reviewing the percentage of “uncounseled misdemeanor cases”—defendants without any appointed public or private defenders. Most smaller counties marginally improved over the last decade with 58.7 percent of defendants unrepresented in 2021 (in counties with populations of 50,000 or less), down from 70 percent in 2011.

But even in 2021, 51 counties still had appointed-counsel rates below 10 percent. Culberson County in far West Texas had 216 misdemeanor cases resolved in 2021 without any public defenders at all. Its average appointment rate for 2018 to 2021 was 1.5 percent. Culberson County Judge Carlos Urias did not respond to multiple requests for comment on reasons for the low appointment rate. In contrast, nearby Presidio County had an average appointment rate of 25 percent from 2018 to 2020 (The latest data for 2021 was unavailable.) 

TIDC Policy Monitoring Reports for several counties found something akin to what Yandell witnessed in West Texas—defendants who had applied for public defenders were hauled before a judge or court staff who asked them to waive their rights to counsel and instead work out a plea with prosecutors. 

“State law says in black letters you can’t do that,” said Nathan Fennell, an attorney with the Texas Fair Defense Project, a nonprofit working to end the criminalization of poverty. “And that makes sense because if you ask for a lawyer and the judge is the one that gets to decide if you get a lawyer or not, and instead of making that decision, the judge says, ‘Well, you should really just talk to the prosecutor instead,’ it makes it look like there’s no benefit to having a lawyer.” 

Fennell said defendants often think whatever a prosecutor first offers them is the best they can get if they lack a defense attorney to help them. “The case could be dismissed,” he said. “The person could go to trial and be acquitted, right? There’s this real set of blinders on a lot of courts, particularly but not exclusively in misdemeanor courts, where people just sort of forget that everyone in there is presumed innocent.”

Many Texans can navigate misdemeanor charges by hiring private attorneys and often avoid incarceration other than the hours it takes for a bond to be set and then to get bailed out of jail. Those without money to post bond or hire an attorney have the U.S. Constitution’s 6th Amendment on their side. But with 254 Texas counties making their own rules on how to get a court-appointed defender, and a lack of state-mandated guidelines, that constitutional right gets trampled.

Some counties fail at the first step in the process—allowing misdemeanor inmates to immediately file an application for indigent defense that is either approved or denied by a judge. State law stipulates that these applications should be available when the accused are brought before a magistrate (usually a justice of the peace in smaller counties) who advises defendants of their rights, sets a bond amount, and assists in filling out the applications before sending them to the judge. By law, defendants must be magistrated within 48 hours, and defense applications sent to a judge within 24 hours. The judge then has three working days (in counties with populations under 50,000) to approve or deny them.

A 2022 TIDC audit of Taylor County, which includes the city of Abilene, found that officials missed the deadline in deciding on misdemeanor defense applications 64 percent of the time. In 45 out of 146 cases, applications were processed at least six working days later. Most disturbing were 21 applications labeled “No Ruling on Request.” In other words, a judge never approved or denied the request at all.

Others fail by holding people in jail longer pretrial than state law allows. In most cases, judges must reduce bonds or release defendants who can’t pay bonds after 90 days in jail for a felony, 30 days for a Class A misdemeanor, and 15 days for a Class B misdemeanor (if they have not been indicted or arraigned and prosecutors are not ready for trial).

In 2022, officials were stunned when Presidio County Judge Cinderela Guevara announced that the county had been jailing people charged with misdemeanors longer than allowed. The alarm expressed in Commissioners Court that day, however, mostly focused on costs the county incurred by violating legal rights, including meals, medical bills, and taking up space that could be rented out for federal prisoners, a money-making venture. Eventually, the county judge added, “But the other issue is, we’re violating their rights by not complying with the law.”

A police report and interviews with officials show that a woman traveling through Marfa from Los Angeles was arrested for being unable to pay for her two-day stay at the swanky St. George Hotel. She couldn’t afford to pay her $2,000 bond for the Class B Misdemeanor for theft of service, and requested a public defender. Ultimately, she spent 37 extra days in jail in violation of the law due to a combination of errors by county officials and her appointed attorney.

No one routinely tracks counties for such violations. Yandell said that when he started his public defender work, he was “amazed” at how many misdemeanor inmates were in jail over the time limit allowed by law. He made it a priority to track that data but noted: “It really surprised me how in some counties I got pushback about [reducing] bonds on somebody that has been in jail too long and no case has been filed.” In the Presidio County case, one commissioner told the court he wanted to follow the law, but he also didn’t want to “let people out of jail just for free.”

Unfair denial of indigent defense

A 2022 report authored by Davies at SMU’s Deason Center—“Getting Gideon Right: Eligibility for Appointed Counsel in Texas Misdemeanor Cases”—found that the method for evaluating indigence varies widely across 254 counties, with most using unfair or even illegal standards for those determinations.

The report highlights the case of Mark, who was arrested in Williamson County and charged with his second DUI—a Class A Misdemeanor punishable by up to a year in jail and thousands of dollars in fines. Like most DUI defendants, Mark wanted an attorney and applied for a public defender since he only made about $600 a month hauling wood and was behind on his bills. All counties require applicants for a public defender to fill out an “affidavit of indigency,” typically a detailed accounting of the accused’s income or assets. Counties then use a variety of criteria to assess whether the defendant is truly indigent. Mark assumed his paltry income would qualify him, but he disclosed his savings account balance of $5,700—a figure that Williamson County said was above what was allowed to receive a public defender.

Mark pled not guilty, and when the court finally scheduled a trial nearly two years later, his savings were exhausted, and he unsuccessfully defended himself in court. Court records show he made several mistakes with his pro se defense, including allowing inadmissible evidence from the prosecution. (His 90-day jail sentence eventually was probated to 18 months of community supervision.)

Most county applications assess income based on the Federal Poverty Line (FPL). A common criterion for indigence is income under 125 percent of the FPL. 

Davies said a much fairer evaluation of indigency would be a “living wage calculator,” which measures a defendant’s ability to pay for defense based on living expenses. For example, he said Chambers County stipulates that someone with an income over the FPL of $12,760 was not presumed indigent. But the living wage calculator showed Chambers County residents needed $29,807—more than double the FPL—just to make ends meet.

The complexity of some applications can lead to absurd results. At least 21 counties don’t accept a defendant’s status as a welfare recipient as a determining factor of indigence.

A 2020 TIDC audit of Deaf Smith County noted, “A defendant who was arrested for criminal trespass submitted two requests [for an attorney] that stated that he was homeless and receiving public benefits from the MHMR. His application was denied twice as incomplete.”

A 2018 audit showed that Smith County’s application required “cost quotes from as many as 12 private attorneys.” After the TICD audit, Smith County stopped requiring the quotes.

TIDC often conducts follow-up audits to see if counties are responding to written directives to fix flawed systems, and reports show many counties do improve. But the agency’s only power to punish counties is to withhold state grants for indigent defense, which could worsen situations for defendants.

SMU’s Davies and other advocates say the solution to counties operating illegal and unfair indigent defense practices is simple: more money. Since counties are ultimately responsible for funding indigent defense—with assistance from grants—the state should step up funding to ensure cash-strapped counties meet their obligations. 

Advocates also say the state needs to establish statewide standards for how public defenders are appointed and procedures to ensure that appointments are made as quickly as possible.

TIDC Executive Director Geoff Burkhart said few states lack required statewide standards. Although his staff has recommended standards, the commission members governing the agency—which includes state legislators, judges, and members appointed by the governor—have so far opted for guidelines, best practices, and training instead. Arguments by commissioners for local control and avoiding unfunded mandates prevailed over mandatory rules.

But doing nothing can be costly for counties too. Untimely, slow indigent defense appointments and unfair criteria to obtain public defenders result in many defendants who can’t afford bail waiting in county jails looking for a plea deal instead of having counsel advocate on their behalf. “This is a problem that we have seen throughout the state over my organization’s 15 years of existence,” Fennell said.