80th Legislative Session Summary

Four bills related to indigent defense were passed by the 80^th Legislature.

Indigent Defense-Related Bills that passed [last page last revised 9/19/07]:

HB 1265 by Peña / Sponsor Sen. Seliger: HB 1265 makes minor technical changes to the Task Force on Indigent Defense’s enabling statute. The first would allow the Task Force to meet four times per year rather than having to meet each quarter. The second change would strike the “ad hoc” from the definition of assigned counsel programs. An "ad hoc" appointment system allows for a judge to appoint attorneys arbitrarily instead of from a rotational list of attorneys, which is required by the Fair Defense Act. This removes the improper use of the term "ad hoc".

HB 1267 by Peña / Sponsor Sen. Seliger: HB 1267 allows appointed counsel to appeal a judge’s failure to act on a request for payment within 60 days. This will encourage judges to act timely on attorney fee vouchers submitted. It also streamlines the payment system for paying attorneys for representing Texas Department of Criminal Justice inmates who are charged with new crimes who may not be represented by the State Counsel for Offenders. Under the bill, counties will pay appointed counsel for services provided according the local fee schedule and the comptroller shall reimburse counties for the cost of inmate indigent defense within 60 days after receiving a request for reimbursement. It also ensures that indigent inmate defense is governed by the Fair Defense Act. And last, it creates a new $2 fee on criminal convictions to be used for indigent defense services. The fee is expected to generate about $7.6 million in new revenue annually.

SB 168 by Ellis / Sponsor Rep. Flores: SB 168 eliminates the scheduled 2007 sunset of the State Bar legal services fee, half of which is allocated to indigent defense and half to civil legal services to the poor. The fee generates almost $2 million per year for indigent defense, which must be used for demonstration and pilot programs, and to date has been used to fund six new public defender offices in Texas.

HB 1178 by Escobar / Sponsor Sen. Ellis: HB 1178 clarifies the circumstances under which a court is authorized to obtain from a defendant a waiver of the right counsel and under which circumstances an attorney representing the state is authorized to communicate with a defendant who is not represented by counsel. It also authorizes a court to proceed with a matter on 10 days notice to the defendant if an indigent defendant waives counsel or refuses appointed counsel and appears without counsel after given reasonable opportunity to request appointment.  The bill also invalidates the accused’s waiver of counsel if (A) the state’s attorney attempts to obtain a defendant’s waiver or communicates with a defendant who has requested counsel and not been denied appointment under Art. 26.04 and subsequently either failed to retain private counsel or waived the opportunity to retain private counsel or (B) the judge or magistrate directed or encouraged the defendant to communicate with the state’s attorney without advisement of the right to counsel, procedures for requesting counsel, and giving the defendant reasonable opportunity to request appointed counsel and defendant was not denied under 26.04 and failed to retain or waived the right to counsel.  Lastly, under the bill a judge or magistrate may not order a defendant rearrested or require another, higher bond because a defendant withdraws the waiver of counsel or requests the assistance of counsel, appointed or retained. See: Overview of HB 1178 Requirements and Flowcharts of HB 1178

Indigent Defense- Related Bills that did NOT pass:

HB 298 relating to the use of bail bond costs.
HB 1266 relating to the standards for attorneys.
HB 3636 relating to the appointment of an attorney to represent an indigent defendant who is in the custody of a correctional facility of the Texas Department of Criminal Justice or another related correctional facility.
SB 159 relating to a local public defender's office that represents indigent defendants in criminal cases.
SB 263 relating to the creation of a commission to investigate and prevent wrongful convictions.
SB 306 relating to the appointment of counsel to represent an indigent defendant in a capital case.
SB 454 relating to procedures applicable to waivers of the right to counsel in certain adversary judicial proceedings.
SB 499 relating to postconviction DNA testing.
SB 528 relating to the standards for attorneys representing indigent defendants in capital cases.
SB 647 relating to the use of unencumbered surplus state revenues to create a permanent fund for indigent defense.
SB 1557 relating to the appointment of an attorney to represent an indigent defendant who is in the custody of a correctional facility of the Texas Department of Criminal Justice or another related correctional facility. (Passed as part of HB 1267)
SB 1655 relating to the establishment of the capital writs standards subcommittee of the Task Force on Indigent Defense and the creation of the office of capital writs.
SB 2012 relating to the imposition of a fee on conviction of a criminal offense and on the filing of a civil case to support indigent defendant programs.

General Appropriations

The General Appropriations Act, or HB 1, as passed by the 80^th Legislature appropriates $15,698,768 to the Task Force on Indigent Defense each year of the FY08/09 biennium. This amount is based on the comptroller’s Biennial Revenue Estimate and does not include funding from the legal services fee, since it was due to expire until SB 168 passed this session.  HB 1 includes funding for the four universities for innocence projects ( University of Texas , Texas Tech, University of Houston , and Texas Southern University) in the amount of $100,000 per year per school. The funding for the Task Force on Indigent Defense is contained within the Office of Court Administration’s budget in Article IV of the bill, which begins on page 489 of 922 in the document.  HB 1267 included additional revenue for indigent defense services and it is discussed above.

The Legislative Budget Board also maintains a website dedicated to criminal justice issues, which may be viewed here. 

Press Release

Sen. Kel Seliger’s press release discussing indigent defense is here

For information concerning legislation filed during the 80th Regular Session or any other past session, visit the state legislature's web site at http://www.capitol.state.tx.us/.

For all other legislative inquiries, e-mail Wesley Shackelford, Special Counsel to the Task Force, or call him at (512) 936-6997.

Members of the Task Force who are in the Texas State Senate and House of Representatives

Senator Jeff Wentworth

Senator John Whitmire
Chair, Senate Criminal Justice Committee



Representative Aaron Peña, Chair, House Criminal Jurisprudence Committee

Representative Todd Smith

79th Legislature information on Task Force