State appellate courts and judicial branch agencies face the possibility of having to live with their already pared-down budgets for another two years, or they could sustain further cuts of up to 10 percent.

In a June 4 memorandum, the Legislative Budget Board (LBB) and the Governor’s Office of Budget, Planning and Policy instructed state agencies to submit baseline appropriations requests for no more than they received for the current biennium. The memorandum also directed agencies to submit supplemental schedules detailing how they would reduce their budgets by an additional 10 percent.

The requests the judicial branch submitted Aug. 16 to the LBB will be considered by the Texas Legislature in the session beginning Jan. 8, 2013.

The possibility of reductions in their appropriations — in addition to cuts imposed in 2011 — is a concern for the appellate courts.

Texas Court of Criminal Appeals Presiding Judge Sharon Keller says, “If we were to actually lose 10 percent of our appropriation, it would be devastating.”

According to the CCA’s appropriations request, a 10 percent cut would force the court to cut nine law clerk positions, which is 50 percent of the legal staff in the judges’ chambers.

Chief Justice Tom Gray of Waco’s 10th Court of Appeals says to avoid having to lay off personnel if a 10 percent reduction is required for the 2014-2015 biennium, his court will impose a 6 percent pay cut applicable to staff and the three justices.

“Everybody is on board with that,” Gray says.

State Sen. Robert Duncan, a Lubbock Republican on the LBB, says he is hopeful there won’t be a 10 percent reduction because the economic picture for Texas is brighter than it was prior to the 2011 session.

“Sales tax revenues are up; franchise tax revenues are up. The economy looks better,” says Duncan, a partner in Lubbock’s Crenshaw Dupree & Milam.

But Jason Embry, spokesman for House Speaker Joe Straus, notes in an email, “While the growth in revenue this year is encouraging, the Legislature must be cautious because numerous fiscal challenges remain, including a $4.7 billion Medicaid shortfall and a deferred $2 billion Foundation School Program payment for school districts. The speaker is mindful of these constraints and their effect on revenue. Any additional growth in revenue must be focused on meeting the demands driven by growth in population and inflation.”

Lieutenant Gov. David Dewhurst co-chairs the LBB with Straus. His press office did not respond to a request for an interview.

The Governor’s Office on Budget, Planning and Policy refers a call seeking comment to the press office, which did not respond to a request for a statement before presstime.

Wish List

The judicial branch seeks a number of exceptional items, including a request by the Office of Court Administration (OCA) for an additional $2.3 million to replace aging computers at the appellate courts, to hire two additional computer programmers and to reimburse the 5th Court of Appeals for its on-site technician.

“It’s dollar-wise for the Legislature to respond favorably to that request,” says Texas Supreme Court Chief Justice Wallace Jefferson.

Jefferson says technology has enabled the Supreme Court to be more efficient. Justices can work on cases even while traveling, he says.

Since Sept. 12, 2011, the Supreme Court has required attorneys to electronically file all documents, except those filed under seal. David Slayton, the OCA’s administrative director, says 12 of the state’s 16 appellate courts will have e-filing by Sept. 1.

Slayton says the Legislature did not provide technology funding sought for the current biennium. By the time the biennium ends on Aug. 31, 2013, all personal computers in the appellate courts will be out of warranty, Slayton says, noting that there is “a significant likelihood” for breakdowns in older equipment. The OCA’s request would enable the agency to replace 60 percent of the courts’ computer equipment in the next biennium, he says.

Terrie Livingston, chief justice of Fort Worth’s 2nd Court of Appeals, says the OCA’s request does not go far enough. As noted in the 2nd Court’s appropriations request, that court is seeking an additional $251,178 to replace and upgrade its technology equipment and software.

The exceptional items also include requests by the state’s top two appellate courts and the 14 intermediate courts of appeals for funding to provide staff pay raises and/or to hire additional personnel.

Chief Justice Catherine Stone of San Antonio’s 4th Court of Appeals, chairwoman of the Council of Chief Justices, says the intermediate appellate courts seek similar funding for same-size courts (based on the number of justices), an initiative that the courts of appeals began working on in 2005. The Legislature partially funded the initiative for 2011 but subsequently reduced the appropriations, forcing cutbacks at the appellate courts.

Steve McKeithen, chief justice of the 9th Court of Appeals in Beaumont, says, “This court had to cut everybody’s pay by 3.25 percent. You can’t keep doing that and keep” staff.

Livingston says her court had to cut one attorney and a deputy clerk and had to reduce salaries by 7 percent, which caused five paralegals to leave the court.

Stone says the reduction in appropriations has left the 4th Court with a lack of depth in its staffing. Noting that three 4th Court employees — two administrative staff and one attorney — have taken maternity leave this year, Stone says she is not sure the court will have a 100 percent clearance rate on its cases when the current term ends Aug. 31. That means some litigants will face delays in the disposition of their appeals.

“A backlog isn’t just a statistic; it isn’t just a term we’re throwing out,” Stone says. “It’s people.”

The Texas Indigent Defense Commission (TIDC) has requested a $154 million exceptional item to fund increased costs that counties have incurred to provide lawyers for indigents since the passage of the Fair Defense Act in 2001.

Jim Bethke, the TIDC’s executive director, says, “Right now, we’re providing counties only about 15 cents on the dollar.”

Bethke says money needed to help close the gap in state funding for counties is in a dedicated account in the state’s general revenue fund. He says the Fair Defense Account receives money from court costs paid by people convicted of criminal offenses, fees assessed on surety bonds and half of a $65 fee that attorneys pay annually to help fund access to justice.

Because it is a dedicated account, the Legislature cannot use that money for purposes other than indigent defense. But Bethke says the Legislature leaves the cash in the Fair Defense Account and other dedicated accounts for budget certification, thereby giving the illusion that the state has cash balances to back up the budget.

A 2011 report prepared by the Texas Comptroller of Public Accounts shows the Legislature uses more than $4.9 billion in dedicated accounts to certify the state budget.

Duncan says he does not think there is a lot of disagreement that lawmakers should move away from using dedicated accounts for budget certification rather than for the purposes for which those dollars were intended. The question is how to do that, he says.