The Fair Defense Act and the Problem of Attorney Fees

While Collin County’s high-profile case involving special prosecutors has gotten a lot of attention, it happens to be the most notable among a number of cases in which attorney fees are not controlled by your Commissioners Court.
Collin County taxpayers spent $9,292,020 on indigent criminal defense cases in FY2016 alone, a 17-percent increase over the previous year. That amount does not include payments to special prosecutors.
This is not a problem specific to Collin County. It affects every county in the state.
Collin County is not the only jurisdiction trying to get a handle on court-appointed attorney costs. But because of our high-profile case, we can take a leading role in calling for the legislature to remedy the problem.
On Wednesday of last week, I sent a letter to the Texas House Appropriations Committee urging them to clarify the rules that prevent county governments from controlling their own spending.
Here is the text of the letter:

Dear Members of the House Appropriations Committee:  
I am writing to provide a local example of how rising indigent criminal defense costs have affected the taxpayers of Collin County.
In short, Collin County expenditures for indigent criminal defense have more than doubled in the last 10 years, with actual expenditures regularly cresting budgeted funds since Fiscal Year 2007, according to figures posted by the county’s independently appointed Auditor.
According to the Texas Association of Counties (TAC), “The costs of providing court-appointed counsel in criminal cases are a major uncontrollable expense in county budgets. Since passage of the Fair Defense Act, indigent defense expenditures have increased 171 percent from $91.4 million in 2001 to $247.7 million in 2016. However, state grants distributed by the Texas Indigent Defense Commission have covered only a small proportion of total costs.”
Collin County taxpayers spent $9,292,020 on indigent criminal defense cases in FY2016 alone, a 17-percent increase from the previous year and, to be clear, a figure which does not include any funds spent on special prosecutors.  All told, we have seen a 56-percent increase in indigent criminal defense expenditures since FY2007.
Interestingly, the growth rate of expenditures is double the pace of felony indictments here over the last decade, according to statistics compiled by the State’s Office of Court Administration.  County Courts of Law here have only seen a 5-percent increase in the number of new misdemeanor filings in the same period.  Indigent juvenile defense expenditures, which are folded into these figures and also include ad litem services, have also increased but at a slower rate.
By comparison, Collin County taxpayers paid more than twice as much in FY 2016 to provide indigent criminal defense than they did to provide state-mandated health care services for eligible indigent residents. One difference is that indigent health care costs are capped per person per year. Indigent defense costs are not.
County prerogatives help keep indigent health care costs down. Specifically, FY2016’s expenditures in indigent health were actually 6 percent less than paid out in Fiscal 2009, thanks to efforts by the county’s healthcare services to come up with innovative ways to monitor spending and make the most of budgeted tax dollars. No such prerogatives exist under indigent defense.
Our county asks that you help Texas counties find a reasonable solution to deal with burgeoning indigent criminal defense costs. Competent legal counsel for eligible defendants is obviously an important issue, but local taxpayers are footing these mounting bills while their elected officials have virtually no say or means to control or even slow down steadily climbing expenditures associated with the Fair Defense Act.
Keith A. Self
County Judge