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During a June 24 meeting of the Travis County Commissioners Court, the three primary public defense counsel providers in the county addressed Austin’s criminal defense attorney shortage.
Geoff Burkhart, county executive for Community Legal Services in Travis County, presented a PowerPoint to the commissioners detailing the shortage.
“We have a very heavy reliance on private assigned counsel,” Burkhart said as he showed a slide that said the Travis County Public Defender’s Office (PDO) provides about 20 percent of the county’s criminal defense needs, while the other 80 percent comes from the Capital Area Private Defender Service (CAPDS).
Public Defense in Texas
“In the wake of Gideon v. Wainwright in 1963, the case that required counsel for criminal defendants who can’t afford it, states approached this problem very differently,” Burkhart said.
Some states, like Colorado and New Mexico, established statewide public defender offices. States such as Texas, California, and Illinois left the provision of public defense up to the individual counties, and these states are in the minority, as most states fund public defense at the state level rather than the county level.
Further, county-funded public defense is hamstrung by the Texas Property Tax Reform and Transparency Act of 2019 (SB 2), Burkhart said. This Act requires counties to hold mandatory elections for proposed property tax hikes of more than 3.5 percent over the previous year.
The problem is compounded even more by the shrinkage of CAPDS’s private criminal defense attorney pool. In the last decade, Burkhart said, CAPDS’s attorney list has fallen from 250 attorneys to 125.
“This problem is not unique to Travis County,” Burkhart said. “Texas has lost about 27 percent of its criminal bar in the past decade.”
Challenges Recruiting New Criminal Defense Attorneys
Travis County has some challenges when it comes to recruiting new talent into the criminal bar.
First, the county only has one law school, and as the University of Texas School of Law has risen in notoriety, its graduates have increasingly gone into Big Law and moved out of Austin.
Additionally, Burkhart said law school graduates, by and large, don’t want to start their own law firms working in public defense.
If they do want to work in public defense, they want to do so in a public defender’s office, where they can collect a salary, receive benefits and loan forgiveness, and receive guidance as they begin their careers.
Seven Possible Solutions
Burkhart proposed a number of possible solutions to address the shortage:
1. Expand the Public Defender’s Office
This expansion would add:
- Six senior attorneys
- A paralegal
- A social worker
- A case worker
- An investigator
Estimated annual cost: $1.4 million
The goal would be to represent 160 additional first- and second-degree felony cases, which correlates to about 1,200 additional clients per year.
2. Incentivize CAPDS Attorneys
In this scenario, the county would initiate an incubator pilot, fund a discovery tool, build research stations, and add workspace and parking.
Estimated annual cost: $500,000
The goal would be to recruit and retain attorneys who devote more time to CAPDS.
3. Create a CAPDS Attorney Retainer
In this scenario, the county would fund a retainer for CAPDS attorneys based on the percentage of their practices devoted to CAPDS:
- 100 percent: $10,000 retainer
- 75 percent: $6,000 retainer
- 50 percent: $4,000 retainer
Estimated annual cost: $800,000
The goal would be to incentivize private attorneys to devote more of their practices to Travis County.
4. Raise the Attorney Fee Schedule
In this scenario, the Travis County Courts would be responsible for determining the attorney fee schedule.
Burkhart proposed a targeted approach to incentivize attorneys to take cases in areas that are seriously lacking felony attorneys.
Estimated annual cost: $1 million to $4 million
The goal would be to recruit and retain attorneys to work on more serious cases.
5. Create an Attorney Pipeline
This proposal would incentivize internships and fellowships in public defense law.
Bradley Hargis, executive director of CAPDS, is a longtime advocate of a Public Defense Institute.
Estimated cost: $120,000 to $1.3 million, depending on the approach.
The goal would be to create a pipeline of young attorneys for Travis County public defense.
6. Hire a Recruiter
In this scenario, the county would hire a specialized recruiting firm to:
- Produce recruiting materials
- Post jobs online
- Make phone calls with potential recruits
- Host recruiting events at law schools
Estimated annual cost: $50,000 to $150,000
The goal would be to recruit licensed attorneys from other counties and new attorneys out of law school.
7. Offer Loan Forgiveness
Burkhart sits on the board of Texas RioGrande Legal Aid, which offers loan forgiveness to its attorneys.
In this scenario, Travis County would offer a similar program to forgive between $150,000 and $200,000 in law school debt for public defense attorneys.
The annual cost has not yet been determined.
Potential Funding
Burkhart then addressed potential avenues for funding these programs.
One option is to apply for grants from the Texas Indigent Defense Commission (TIDC). The commission is currently drafting its legislative appropriation request, which will be used to issue grants to rural or understaffed counties.
Further, Burkhart said SB 2 has a carveout that can allow counties to exceed their normal tax rate caps for public defense measures without triggering a mandatory election.
Burkhart said Community Legal Services is working closely with the Travis County Budget Office to see how much additional money could be raised through this carveout.