Tarrant County is the largest county by population in the United States without a public defender’s office — the nonprofit or governmental groups that fund the legal defenses of indigent individuals through salaried public defenders (defense lawyers). One state expert on indigent defense said that may change in the next several years.
“As far as building a public defender’s office in Tarrant County, I think it will be several years before we get there,” said Geoff Burkhart, executive director for Texas Indigent Defense Commission (TIDC), the governmental group charged with monitoring and partly funding indigent defense throughout Texas.
“We regularly get calls from people in Tarrant County, whether they be judges, commissioners, private attorneys, or state reps … who are interested in getting a public defender’s office” in Tarrant County, he said. “I think there is interest. We aren’t at the point of doing planning studies yet.”
Texas counties, Burkhart continued, are creating public defender offices at record rates. Ten offices were added in the Lone Star State last year, and 2021 could see at least more than 15 new ones, he said. In January, Travis County became one of the most recent Texas counties to provide indigent defendants with the free legal services.
Many see the tax- or grant-funded offices as a counterbalance to well-funded district attorney offices that prosecute, jail, and incarcerate millions of Americans every year. Burkhart said public defender offices, which can be run as nonprofit, governmental, or quasi-governmental organizations, add accountability to how tax dollars are spent when providing legal counsel to individuals who could not otherwise afford those services. Many rural counties see the offices as one way to attract young lawyers who can benefit from a salaried job and the possibility of law school loan forgiveness programs, he added.
Last July, we reported on efforts to bring a public defender’s office to Tarrant County (“ Defending the Poor,” July 2020). At the time of our reporting, we were not aware of the comprehensive review that TIDC had concluded just one month earlier. The report examined Tarrant County’s compliance with the Fair Defense Act, the state law that requires all criminal courts to adopt procedures for providing indigent defense.
Overall, Tarrant County is doing “very well,” especially when it comes to monitoring which individuals qualify for a court-appointed defense lawyer, said Joel Lieurance, senior policy analyst with TIDC.
In Tarrant County, tracking indigent defendants “can be a challenge,” Lieurance said. “The county used to capture requests from multiple municipalities [within Tarrant County]. Most counties, even without that complexity, can lose half of these requests. Tarrant County did a great job of tracking them all. They have been proactive at making the system better.”
The TIDC did find that some Tarrant County criminal court judges asked indigent defendants about the finances of relatives when determining eligibility for court-appointed lawyers.
“Parents are not legally bound to pay their adult children’s legal expenses,” TIDC reported.
County officials assured Lieurance and his team that the outdated practice will no longer be allowed, Lieurance said.
Claire Buetow, senior policy analyst with TIDC, said part of Tarrant County’s high marks during the review was due to how indigent screening was performed.
Tarrant County has “a whole staff of indigent screeners who are interviewing people after magistration to make sure people who need it are getting counsel,” she said. “Having a team is a good way to make sure those requests get processed accurately and quickly.”
Other areas of Tarrant County’s criminal justice system will require further monitoring and updates, she continued. While the county keeps accurate tabs on court-appointed vouchers (to track billable hours), Tarrant County judges may not be tracking how many hours defense lawyers spend with their clients. One-third of court-appointed attorneys have a high caseload.
“One attorney, at 242% of the guidelines, had 234 felonies, 84 misdemeanors, and seven appeals, plus three capital murders,” assigned, TIDC’s report found.
While the Tarrant County District Attorney’s office has dozens of full-time investigators at its disposal, the same resources are not allotted to indigent defendants. The resources devoted to investigations appear to fall “below levels” expected under the caseload guidelines, the review found.
One local defense lawyer, cited anonymously in the report, put it directly.
Tarrant County judges “do not want to pay for experts to help thoroughly investigate defensive issues,” the lawyer told TIDC. “We often have to scrounge for bottom-barrel experts rather than the ones we need. [It] would be nice to have funding on par with the DA’s office. The DA gets funding approval from the county for anything they want while we have to go through the judges. That’s backward.”
A public defender’s office would solve the disparity in access to investigators, Burkhart said.
District attorney offices rely on local police forces, he said. “They have access to that investigative arm. The defense doesn’t have that. A public defender office has staffing ratios built in. You don’t have to go to judges to request funding for an investigator. Judges are taken out of the puzzle. When you look at public defender offices, we tend to see more use of investigators and more reasonable caseloads. Investigators are a direct marker of quality. When we see investigator usage that is so low, we see that as a red flag.”
The final report found that Tarrant County inappropriately included “general court and civil case expenditures” as criminal indigent defense expenses. The county responded by outlining new policies that will prevent inaccurate accounting of how indigent funds are marked moving forward, Lieurance said.
Tarrant County spent around $21 million on indigent defense in 2020, according to TIDC numbers while the county reported that the local DA’s office was allotted around $28 million in 2020. Improving pay parity between defense lawyers and prosecutors could be another benefit of a local public defender’s office, Buetow said.
Counties have to weigh the financial costs of committing to a public defender’s office, Burkhart said.
“There are expenses on the front-end and savings down the way,” he said. “Cost should not [solely revolve] around defense cost. If you are really talking about cost, you need to look at jail bed costs, recidivism costs, and the social costs” of having an underfunded indigent defense system.