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Each year the American Bar Association recognizes exemplary work in providing legal services. This year, the Harrison Tweed Award was given to the State Bar of Texas, a high mark indeed, and one reflective of twin achievements. Those achievements come from breakthrough developments in indigent criminal defense and work done to support civil legal services through the Texas Access to Justice Commission. Texas often stands apart from the crowd, but not always for the right reasons. When Time magazine surveyed indigent criminal defense in the United States, it offered the following observation of Texas: “Texas’ reputation as a state without tender mercies for the accused is nowhere more apparent than in how it deals with defendants too poor to hire lawyers. They are provided with appointed counsel, but the competency of those lawyers, the rates they are paid and the speed with which they are assigned have shocked even impartial criminal justice experts. … As bad as things are elsewhere, Texas is at the bottom of the heap.” At the time the Time article — “The Costs of Poor Advice” — ran in the July 5, 1999, issue, the Standing Committee on Legal Services to the Poor in Criminal Matters was four years old and in the final stages of its third study to survey the status of indigent criminal defense in Texas. First the committee surveyed criminal-defense lawyers, then prosecutors and judges. Judge Allen Butcher, chairman of the committee, assisted by Dr. Michael Moore, a member of the committee, produced a study based on these surveys, “Muting Gideon’s Trumpet: The Crisis in Indigent Criminal Defense in Texas.” That survey made it clear that the lack of oversight from the state and no state funding led to a system characterized by low attorney fees and limited attorney independence since judges typically had unfettered discretion over which attorneys received appointments. Experience demonstrated that too often in Texas, appointed attorneys operated high-volume, low-advocacy practices. Most attorneys who worked in this system became discouraged and ceased representation of indigent defendants as soon as retained work was available. Thus, indigent criminal defendants were routinely represented by attorneys with little experience or little interest in them. Publication of the report and presentations based on it raised public awareness and lead to a growing call for reform. Subsequent complementary studies and investigative reports added impetus, and in December 2000, the State Bar of Texas sponsored the first Symposium on Indigent Defense in Texas. Staged to coincide with the opening of the 2001 legislative session, the symposium allowed sufficient progress among key stakeholders — judges, prosecutors, defense lawyers, members of the Legislature and state agency representatives — to make passage of legislation possible. In June 2001, the governor signed the Texas Fair Defense Act into law, thus requiring all 264 counties to adopt new indigent defense systems that meet minimum state standards for prompt appointment of counsel, attorney qualifications, fair and neutral assignment of counsel, consistent indigence determinations, and adequate compensation of appointed counsel. Further, the act created a state commission, the Task Force on Indigent Defense, charged with monitoring indigent practice and developing further improvements. Finally, the act appropriates $20 million in state funding to help pay for these reforms. Indigent criminal defense in Texas will not change overnight. Given the deplorable status before adoption of the act, given the tentative nature of the initial reforms and given the modest amount of state funding, it is clear more work lies ahead. Already, planning is under way for a second symposium. We only can hope that these long-overdue reforms continue during the upcoming legislative session. Certainly Texas is headed in the right direction, no longer sitting hopelessly at the bottom of the heap. THE FIRST STEPS The Texas Access to Justice Commission recently celebrated its first birthday, making it appropriate to review its initial work. Dedicated to expanding access to quality legal service for low-income residents, the commission can claim laudable early success, particularly in funding. For the first time, Texas has authorized use of the Crime Victims Compensation Fund for civil legal services. Five million dollars has been made available to provide civil legal services to low-income victims of crime for the next two years. These funds will be administered by the Texas Equal Access to Justice Foundation, which also administers the Texas Interest on Lawyers’ Trust Accounts program. Additional funding beyond the first two years will require that the Texas Office of the Attorney General continue to include this funding in its budget request in future legislative sessions. Recently, IOLTA revenues have declined, due primarily to the low interest rates; consequently, support through the Crime Victims Compensation Program is of great importance. Even more impressive than facilitating access to state funding is development of increased funding support from Texas lawyers. Many years ago, annual dues statements sent to lawyers provided a “fill-in-the-blank” section for contributions to several nonprofit organizations; it raised about $77,000 at its peak. Texas Supreme Court Justice Craig Enoch spearheaded a move to change the form so that attorneys were urged to contribute $65 toward the Texas Access to Justice Commission. All reasonable expectations were exceeded as the language change resulted in contributions of more than $500,000 in 2001, when the form was accompanied by a letter, signed by all the Texas Supreme Court justices, encouraging members to contribute, thanking them for their pro bono work and informing them about the creation of the Texas Access to Justice Commission. Encouraged by this development, but convinced that an additional change could produce more support, Chief Justice Tom Phillips suggested a change from opt-in to opt-out. The Legal Services to the Poor in Civil Matters Committee followed Phillips’ suggestion and recommended to the State Bar of Texas that the opt-out suggestion be adopted. It was. And this month, dues statements were sent with a clearly explained opt-out provision. While it is difficult to predict accurately the effect of this change, it is quite possible that several million additional dollars will be collected from Texas lawyers. This, combined with the addition of $5 million from the Crime Victims Compensation Fund, will more than double support of the civil legal services for low-income residents. That’s progress by any standard. This is a moment to celebrate the advancement in reforming indigent defense and funding civil legal services for low-income Texas residents, but it is not time to declare success. Given the nature of the problems and Texas’ shameful history of ignoring poverty, the high marks are only the first steps. Frank Newton is the executive director of the Beaumont Foundation of America, a nonprofit corporation that provides computers to other nonprofits; he was formerly dean of the Texas Tech University School of Law.

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