In Rural Counties, Texas Law Puts Low-Income Defendants at a Disadvantage
By William Melhado, The Texas Tribune
With livelihoods and futures on the line, a two-tiered system of justice enshrined in the Texas Criminal Code is putting some of the poorest rural Texans at a disadvantage after an arrest.
While indigent residents — those who can’t afford an attorney — of counties with more than 250,000 people must be provided with a court-appointed lawyer within one day of requesting counsel, the wait for rural Texans could stretch up to five days.
Lawmakers approved this system 22 years ago, in part to address a long-standing problem — a persistent shortage of lawyers working in rural Texas — by requiring counties to create appointment procedures and establish qualifications for attorneys representing indigent clients.
The law, however, also gave the state’s less populous counties more time to assign a court-appointed attorney, jeopardizing the right to legal representation as guaranteed by the U.S. and Texas constitutions.
“That’s changing the law to make the problem legal. It’s not fixing the problem,” said Pamela Metzger, a law professor and director of the Deason Criminal Justice Reform Center at Southern Methodist University in Dallas.
For low-income residents of almost 200 rural counties, where few if any lawyers may practice, delays in representation can translate into more time in jail and rushed plea deals — both of which can lead to loss of jobs, housing and child custody.
To address the pervasive shortage of teachers and doctors, rural America has created financial incentives, educational pipelines and other strategies to attract and retain professionals.
Similar innovations for lawyers, however, are lagging in parts of rural Texas.
The problem has drawn the attention of several Republican lawmakers who recently filed identical House and Senate bills to establish a favorable loan repayment program for lawyers who choose to work in rural parts of the state where relatively lower salaries and few law firms can limit opportunities, particularly for young lawyers struggling with law school debt.
Under House Bill 4487 and Senate Bill 1906, lawyers would receive up to $180,000 to repay student loans if they practice criminal law in a rural area for four years. The goal is to encourage novice legal professionals to build careers, families and community ties in rural Texas.
In addition, some rural counties have banded together to create public defender offices that provide lawyers for indigent residents. Although the offices are providing needed relief, hundreds of rural defense attorneys have retired, died or moved away in recent years, leaving some areas underserved.
“If you were to ask me what’s the No. 1 problem with Texas public defense today, I would say access to counsel in rural areas,” said Geoff Burkhart, executive director of the Texas Indigent Defense Commission.
181 different ways to appoint lawyers
In 2001, lawmakers created different timelines to appoint lawyers for some of the poorest Texans based on where they live.
For those in counties with at least 250,000 residents, indigent defendants who request a lawyer must be provided legal counsel within 24 hours. Smaller counties, however, have three business days, meaning delays can stretch to five days in case of a weekend.
The law sought to address glaring deficiencies in legal representation for low-income Texans by requiring counties to standardize appointment procedures, whether by creating a rotational system of defense attorneys, a public defenders office or some other process.
But lawmakers, concerned that smaller counties lacked the needed resources, provided a longer deadline to appoint a lawyer, according to a bill analysis from the House Research Organization.
“While some areas, particularly large urban jurisdictions, report that they appoint attorneys for indigents within hours or a day or two, in other areas it is not uncommon for defendants to spend weeks — sometimes even months — in jail,” the analysis said.
In a 2002 written opinion on the law, then-Attorney General John Cornyn said he believed the two-tiered system did not violate the constitutional guarantee of equal protection under the law.
The need for uniformity, Cornyn wrote, “must necessarily be balanced against the need for workability given the size of the state and the variations in size, resources, and problems of its numerous counties.”
The variations in Texas’ criminal justice system extend to how courts determine if a person is indigent and how those individuals are appointed lawyers. Texas doesn’t have statewide guidelines about who can be provided a court-appointed lawyer, so each county creates its own rules.
According to research by the Deason Center at SMU, there were 181 different plans for appointing counsel in 2019, each with their own standards of determining when someone meets the financial threshold to receive a court-appointed attorney. Those plans can consider income, assets, financial obligations and more when considering if someone is “not financially able to employ counsel,” which is the state’s definition of indigent.
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“A pretty horrifying prospect”
Legislative technicalities aside, the two-tiered system has resulted in different systems of justice for Texans based on where they live.
For example, in Culberson County — home to about 2,000 people in Far West Texas — 216 misdemeanor charges were filed in fiscal year 2021, but none of those charged received a court-appointed lawyer.
According to the Texas Indigent Defense Commission, 12 other counties also did not provide a court-appointed lawyer for any misdemeanor charges in fiscal year 2021, while 53 other counties had a 10% appointment rate.
In comparison, Bexar County, home to San Antonio and about 2 million residents, had an appointment rate of 58% for misdemeanor charges.
For low-income defendants charged with felonies, the issue has been less acute. Data from the state’s indigent defense commission found that appointment rates for felonies stayed relatively consistent over the past decade, oscillating between 70% and 90%, which was generally in line with national averages.
Bexar County reported a 90% appointment rate for felony charges in fiscal year 2021, while Real County, with about 3,000 people, had a rate of 72%.
What the data doesn’t show is the amount of time defendants spend in jail while waiting for help from a lawyer.
Many indigent Texans can spend more than a week waiting for a lawyer, said Nathan Fennell, a staff attorney at the Texas Fair Defense Project, a nonprofit that provides legal help and advocates for policy changes to the criminal justice system.
“Imagine sitting in jail for a week without a lawyer, and the most critical time to have a lawyer in a lot of ways … [it’s] a pretty horrifying prospect,” Fennell said.
In Hockley County, just west of Lubbock and home to roughly 20,000 people, Sheriff Ray Scifres said gaps in the indigent defense system can mean longer-than-necessary jail time.
“Everything for us is about length of stay — how long are these pretrial detainees staying in our facility?” Scifres said. “And of course the longer they stay, the more that is going to cost your local taxpayer.”
Across vast swaths of Texas, lawyers who represent indigent clients can be responsible for defendants in far-flung counties. For those juggling private cases and other duties, the driving distance can add a substantial burden.
Rural lawyers are no less capable than their urban counterparts, but they’re stretched thin, said Bill Helwig, district attorney for Yoakum County, with a population of almost 8,000 along the Texas-New Mexico border. The need for more help is undeniable, he said.
“You can only spread really good jelly on bread so thin,” Helwig said.
One-quarter of rural defense lawyers have left
While the lack of professionals in small communities is not a new problem, the issue has become more acute, Burkhart said.
In the past seven years, the state has lost a quarter of its rural defense attorneys to insufficient compensation, retirement and death, he said.
According to a recent policy brief from the Deason Center, less than 1% of Texas lawyers were practicing in the criminal justice system in the state’s 159 smallest counties in 2021. Of those 846 lawyers, less than half had accepted an appointment to represent an indigent client, the center found.
As a result, rural defendants are four times less likely to receive a court-appointed lawyer than their urban counterparts facing a misdemeanor, according to the policy brief.
While the number of qualified attorneys has been declining in rural Texas, new lawyers are not arriving to sufficiently fill the void, Burkhart said.
Caytlin Pichla is an exception to that trend. Pichla passed the bar exam in October and opted to start her career, and her family, in Spearman, a Panhandle town with about 3,000 residents.
A first-generation college student and attorney, Pichla said that after graduating from Texas Tech University School of Law, she interviewed with law firms in larger cities but declined the higher salaries in favor of Spearman’s sense of community as well as its child care options.
It’s also where she saw the most need.
“This is where I need to go to help people,” she said.
But defending low-income clients can have financial consequences, particularly as the average graduate leaves law school with $180,000 in student loans. And Black graduates’ student loan debt is on average 97% higher than their white peers.
Hustling for court cases to repay those student loans isn’t a viable option for many new attorneys trying to establish their practice in a rural community, Burkhart said.
State District Judge Curt Brancheau — based in Hansford County, which is home to Spearman — said there is a moral and constitutional obligation to ensure that people receive adequate legal representation.
“The state has a vested interest in protecting indigent defendants by finding a way to fund their defense — and young, youthful attorneys who are willing to go to bat, I think, are a big part of that equation,” he said.
Brancheau said he’s worked alongside district, county and defense attorneys to recruit new lawyers to practice in the northernmost reaches of Texas, but the problem has defied easy resolution.
“You know it’s bad when the state and the defense are working together,” he said.
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Raising the bar in legal deserts
In Tom Green County, where San Angelo is the county seat, a lonely public defender’s office serves as an oasis in the legal desert so common to rural parts of the state.
“I’ve only ever practiced in rural Texas as a public defender,” said Joe Stephens, the chief public defender at the Concho Valley Public Defender’s Office. “I just firmly believe that this is where the need is the greatest.”
Stephens’ office serves a combined population of about 300,000 replacing a system in which private lawyers were assigned on a rotational basis. Instead of ad hoc representation, the new system provides consistent defense for impoverished residents and serves as a needed counterweight to prosecutor offices, he said.
“We are in jail all the time. With every single docket that is happening in any of our counties that demands our presence, we’re there,” Stephens said. “Ideally, it lifts the bar of representation and police work and prosecution and everything across the state.”
The Concho Valley Public Defender’s Office serves 12 of the roughly 70 Texas counties covered by public defender offices, which includes rural and urban parts of the state.
Burkhart said the number of counties covered by offices has doubled in the past five years.
The Hill Country Regional Public Defender’s Office began serving five counties north and west of San Antonio in 2021. In one of those, Bandera County, the appointment rate for misdemeanors rose from 10% in 2019 to 38% in the first year of the office’s existence.
More than improving the quality of legal representation, public defender offices provide full-time positions and guaranteed caseloads for attorneys, offering job security and benefits for new lawyers who want to move to rural parts of the state.
But the offices, typically funded by counties with help from the state’s indigent defense commission, are expensive to build and expand.
Rep. Reggie Smith, R-Sherman, wants to add a more proactive approach to meeting the financial concerns of young lawyers.
Smith, a longtime rural lawyer himself, is the author of HB 4487, a student loan repayment proposal for graduates practicing law in rural parts of Texas. The bill would provide state money to help repay loans for prosecutors and defense attorneys who work in counties with fewer than 100,000 residents. Eligible recipients could receive up to $180,000 over four years, with lesser amounts for shorter periods of work.
“If you don’t have young attorneys coming out of school who are interested in moving to the rural areas, then your justice system really — whether it’s prosecution or defense — your justice system really breaks down,” Smith said.
It’s not yet clear how much taxpayer money would be needed to fund the loan forgiveness program, but Smith said the state’s historic budget surplus could serve as one potential source.
State Sen. Kevin Sparks, R-Midland, filed an identical bill in the Senate.
Beyond expanding rural public defender offices and providing financial incentives to work in those areas of the state, Metzger encouraged the creation of educational pipelines to recruit rural students to attend college and pursue legal careers.
Metzger pointed to similar models for doctors, like Nebraska’s Rural Health Opportunities Program, which dedicates admission slots for students from rural areas who want to practice medicine.
She said Texas should replicate programs like those in Kansas, New York and North Carolina that mentor students who want to become rural lawyers.
Like the loan forgiveness proposal and rural public defender offices, however, educational pipelines would require taxpayer support, typically a tough sell at the Legislature.
“Ultimately, the Legislature can and should take an interest in public safety and constitutional rights for rural areas,” Metzger said. “What do we have to do to get people to defend your constitutional rights?”
Correction, : A previous version of this story incorrectly identified the number of people and counties served by the Concho Valley Public Defender’s Office.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/03/16/rural-texas-attorney-shortage-legislature/.
