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Overview

Texas misdemeanor courts are in crisis. Across the state, arrested people are routinely left to navigate the criminal legal system alone and undefended. Many plead guilty to misdemeanors without ever having a lawyer's help.

To understand why this is happening and how to fix it, Deason Center researchers studied how and when people are appointed – or denied - counsel in their misdemeanor cases in Texas. The Deason Center reviewed court cases across four strategically-selected Texas counties and tracked when people either retained a lawyer or applied for appointed counsel.  Researchers also collected data on indigent defense policies in each of the Texas’ 254 counties.

The project resulted in groundbreaking insights into the appointment process, the impact of prompt access to counsel on the criminal legal system, and how county policies can help – or obstruct – people from getting the defense counsel guaranteed by the Sixth Amendment.

Key Findings

Texas county standards routinely deny appointed lawyers to people who cannot afford food and housing.

Each county in Texas adopts standards to determine who is entitled to appointed counsel. Depending on where in Texas a person is arrested, a different set of standards will apply.

In Getting Gideon Right, Deason Center examined these standards in each of Texas’ 254 counties. Researchers compared each county’s financial eligibility to the cost of living in each county. In all but two Texas counties, the standards required an arrested person to hire a lawyer, even though their income was too low to afford necessities, like food, housing, and transportation.

In some counties, the process for appointing lawyer is completely broken.

Applying for a lawyer in Texas can be complex. For example, some counties require arrested people to submit significant paperwork to prove they are too poor to hire a lawyer. Such paperwork is nearly impossible to gather from jail, impeding the ability of the people who most need counsel to obtain a lawyer. Further, once they apply, appointment decisions can take several days. Center researchers retrieved and reviewed thousands of court files from four Texas counties, to understand when arrested people requested counsel and what happened to those requests.

The Center’s report Getting Magistration Right shows the vast differences in the application process for counsel across the four study counties. In one county, judges made decisions on applications immediately at magistration, and granted them 90% of the time. In another county, judges routinely failed to record their decisions on whether an arrested person was entitled to counsel.

Outcomes

In Rothgery v. Gillespie County, the United States Supreme Court reaffirmed that, at a minimum, a person’s initial appearance before a judge triggers the attachment of the Sixth Amendment right to counsel. The Court also ruled that "counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial." But what exactly is a "reasonable time?" Few researchers have had access to data to inform this important right-to-counsel question.

The data from this project demonstrate the importance of early appointment of counsel. Center researchers used statistical techniques to compare people of the same race and ethnicity, who faced similar charges, spent the same amount of time in jail pretrial, and had similar histories of contact with the criminal justice system. Researchers found people with counsel before arraignment were more likely to have their cases dismissed at arraignment. The difference in rates of dismissal was statistically significant. These findings suggest that earlier entry of counsel promotes earlier resolution, particularly of cases that do not belong in the criminal legal system.