Since Texas wrote the rules on court-appointed defense in 2001, Bell County has seen the cost of indigent defense increase nearly four-fold.
In the last fiscal year, Bell County paid more than $3 million for the defense of accused criminals who are unable to afford an attorney.
The source of the cost increase is a relative mystery. The county has seen strong population growth, but nothing resembling the exponential increase of money spent.
The economy likely plays a role, said County Court-At-Law 2 Judge John Mischtain, who oversees a portion of the indigent defense program for misdemeanor cases.
Belton criminal defense attorney Kurt Glass said the county may be indirectly seeing the ravages of war, with soldiers affected by combat increasing the amount of assaults and drug cases throughout the county.
Bell County Judge Jon Burrows said it could be due to the county becoming better at the program in general, leading to quicker and better identification of defendants eligible for free representation.
And veteran criminal defense attorney Robert “Buck” Harris said the county’s desire to keep jail costs down could also play a role.
The one thing that is undeniable is that more criminal cases are being referred to the indigent defense program.
By the numbers
While the level of misdemeanor cases has remained largely flat — rising 7.2 percent in the past five years — the amount of cases with court-appointed attorneys has doubled.
In 2008, 25.3 percent of misdemeanors were placed in the indigent defense program. In 2012, court-appointed attorneys represented 47.3 percent of misdemeanor defendants, according to data from the Texas Commission on Indigent Defense.
The rate of court-appointed representation in felonies is even higher, despite the amount of new felony cases actually dropping during the five years of data available.
Both misdemeanor and felony rates are above the state average.
Nearby Williamson County spent roughly half as much on indigent defense in the previous fiscal year, despite having 100,000 more residents. But McLennan County, with a 80,000 fewer residents than Bell County, spent $50,000 more on indigent defense.
The landmark 1963 Supreme Court Case Gideon v. Wainwright established that states must provide a robust legal defense to people accused of a crime who cannot afford an attorney.
In Texas, programs remained nebulous and largely undefined until the Legislature codified the practice with 2001’s Fair Defense Act. The state added Child Protective Services cases to the program in 2005.
It outlined the procedures for the prompt appointment of defense counsel, how lawyers should be selected for a case, fees and a defendant’s eligibility.
Since the Fair Defense Act was signed into law, the county’s expense for the program has risen from $803,000 to $3,031,000.
The county judge calls the legislation an “unfunded mandate” — an expenditure required by the state without any instrument to pay for it.
A certified attorney, Burrows said he would have liked the state to have created a fund to help counties perform these mandated services.
“I certainly think this is a good thing to do,” he said.
The program now counts for about 2.5 cents of the county’s property tax rate, Burrows said.
“Our system wouldn’t function without it,” said 426th District Court Judge Fancy Jezek. “It is a critical importance.”
How it works
The county has established a tiered system by which a level of an attorney’s experience determines what crimes he or she can be appointed to as well as a “robust” mentoring program, Mischtain said. Attorneys submit applications to be part of the program.
Glass said working in indigent defense can be a great way for lawyers to build experience. Glass has been practicing criminal law in Bell County for 2½ years. He has qualified to defend crimes up to third-degree felonies, which can include assaulting a police officer, possession of up to 4 grams of cocaine or indecency to a child by exposure.
An electronic system blind to both judges and lawyers randomly selects who will be appointed to a case. Lawyers can, when necessary, temporarily remove themselves from the list, Jezek said.
To qualify for more serious crimes, a lawyer must have tried a certain number of cases and have a specialization in criminal law.
Only three attorneys in Bell County are on the list to try a death penalty capital case. One of them is Harris, who has 38 years of experience in criminal law. He defended Richard Tabler, a convicted murderer sentenced to death for four murders in 2007.
Harris said lawyers will ask to sit “second chair” on some of his murder trials in order to gain experience. That includes his upcoming defense of Darrell Wayne Parker, the suspect in a double murder outside Troy in January. Parker’s case could become a death penalty case, Harris said.
One hundred and eight lawyers and law firms billed the county an average of $28,307 for indigent defense in the last fiscal year, according to county records.
The costs of most cases are largely set in stone. For instance, a lawyer will earn a $300 flat fee for a guilty plea or dismissal in a misdemeanor case, plus $400 for each half-day in court.
Felonies are more complicated. Lawyers earn $450 for a guilty plea or a dismissal after an indictment for state jail felonies and third-degree felonies. They earn $70 an hour for trial.
Glass made a little more than $94,000 in the previous fiscal year.
He said he sees roughly half of that. A lot goes to maintaining his staff, which includes two full-time and two part-time employees.
“The finances really are not at the forefront of my mind,” Glass said. “In the end, I have to protect my client, and in doing so, provide competent legal representation.”
For murders and capital crimes, the hourly fee jumps to $100 an hour, Harris said. And in capital cases, the typical bill is $50,000 plus expenses.
In Tabler’s trial, the defense’s expenses topped out near $250,000, Harris said.
Though it can mean more money for lawyers — Harris earned a little less than $103,000 in the last fiscal year — high-level cases mean greater scrutiny.
Death penalty convictions are automatically placed on two levels of appeal. One of them strictly reviews the actions of the defense attorney.
“There are a lot of lawyers that are gun shy to that,” Harris said. “I’m a little gun shy to that.”