Kris Seago
Government/Political Science
Material Type:
Full Course
Academic Lower Division
Austin Community College
  • ACC Liberal Arts
    Creative Commons Attribution
    Media Formats:

    Crime and Criminal Defense


    Crime and Criminal Defense

    Learning Objective

    By the end of this section, you will be able to:

    • Explain the right to counsel in Texas


    This section explores how Texas provides legal counsel to defendants

    Crime and Criminal Defense

    People accused of a crime can represent themselves or may retain a criminal defense lawyer to represent them. Since the famous Supreme court case Gideon v. Wainwright, persons too poor to hire a lawyer have the constitutional right to have an attorney appointed to represent them in serious cases. 

    How exactly that counsel is provided, however, was left to states to decide, and in Texas, this “how” gets further relegated to the state’s 254 counties — meaning that each county decides how to appoint, and pay, lawyers for the poor. Last fiscal year, there were roughly 474,000 indigent cases in Texas. There are 19 public defender’s offices, which 39 counties rely on in some capacity, but the majority of counties contract with private lawyers, who are generally paid a modest flat fee per case. (This is the most common way that states fulfill their Gideon v. Wainwright obligations.) More than 150 counties also participate in a public defender program for death penalty cases.

    Because the Supreme Court did not, in its 1963 ruling, specify how states should pay for counsel, local policymakers facing other costs — for schools, roads, law enforcement — consistently shortchange indigent defense. This is why public defender’s offices are chronically understaffed. It’s also why court-appointed private lawyers are overloaded: The fees they’re paid are often so low that they are forced to take on a multitude of cases just to make a living. Some overburdened lawyers, in turn, contribute to so-called plea mills, in which, critics say, they encourage defendants to plead guilty because they are either too swamped to investigate claims or incentivized not to. (In Travis County, for instance, court-appointed lawyers are paid $600 for a felony case whether they secure a plea deal or get the charge dismissed.)

    The problem of funding is especially acute in Texas. Since 2001, when the state legislature passed the Fair Defense Act — a law that aimed to overhaul and standardize how the state’s poor received counsel — total spending on indigent defense has increased significantly, from some $91 million in 2001 to roughly $273 million in 2018. But Texas ranks among the states that spend the least per capita: Its counties, which shoulder most of the costs, are some of the fastest growing in the country, and what little the Legislature chips in to help — some $30 million last year — does not match demand. This creates a woeful game of numbers on the ground. In 2017, for example, the average court-appointed lawyer in Texas made only $247 per misdemeanor case and $598 per felony.

    In Texas, the situation is complicated by another factor: Indigent defense is largely overseen by judges. Contrary to the American Bar Association’s principles of public defense, which call for defense lawyers to be independent of the judiciary, judges in most Texas counties decide which lawyers get cases, how much they are paid and whether their motions — say, to reduce bail or test DNA — have merit. (Counties do have fee schedules for lawyers, but judges set the schedules and retain discretion over payment.)

    Given that judges are elected based, in part, on the efficiency of their courts, this is an inherent conflict of interest. “Whatever the judge wants to do, it’s probably not acquit your client,” said Charlie Gerstein, a lawyer for Civil Rights Corps, a Washington, D.C., nonprofit that has spent the past several years challenging criminal justice abuses around the country. “The judge wants to move the docket. The judge wants to get reelected.” (Civil Rights Corps filed the class-action lawsuitagainst the bail system of Harris County in 2016.) Lawyers trying to work a case properly — by devoting more time or requesting an investigator — face a quandary: Why make the effort if a judge can retaliate by appointing them to fewer cases or cutting their pay?


    References and Further Reading

    Gideon v. Wainwright, 372 U.S. 335 (1963)

    United States Courts. Facts and Case Summary - Miranda v. Arizona. Retrieved October 23, 2019.

    Vanover, J. W. (1998) Utilitarian Analysis of the Objectives of Criminal Plea Negotiation and Negotiation Strategy Choice University of Cincinnati Law Review, 183.

    American Bar Association. Rule 1.3 Diligence - Comment Retrieved October 23, 2019.

    "How judicial conflicts of interest are denying poor Texans their right to an effective lawyer." The Texas Tribune. August 19, 2019.

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