Judge Disqualified & Changes Made to Protect Low-Income Defendants
Under Texas law, individuals can be required to pay for their court-appointed defense attorney. While the Court of Criminal Appeals has clarified that a court must determine that a defendant actually has the ability to pay attorney fees before ordering them to do so, not all courts follow the law.
In Lamar County, a local defense attorney, relatively new to Texas, was shocked when he saw defendants ordered to pay money they didn’t have for a court-appointed attorney, and then threatened with jail if they missed payments.
He alerted Texas Fair Defense Project (“TFDP”) to this illegal practice and we made a trip to Paris, TX to investigate.
We found a judge ordering defendants to pay attorney fees (sometimes ordering them to pay the court more than the county actually expended on legal services) without any finding that the defendant could actually afford the payments. We tried to meet with local attorneys to learn more and find out if they had clients whose bond had been revoked, but only one current criminal defense attorney was willing to speak with us. The rumor in town was that other attorneys were afraid to be seen speaking to us in case of retaliation in the form of fewer court appointments. The local judge was already rumored to distribute case appointments unevenly, rather than off a wheel as required by state indigent defense law.
To determine if people were in fact being jailed because they missed payments, we needed to make at least one more trip and request and pay for pre-trial community supervision and court records. This is where the Impact Fund stepped in, awarding us a grant of $5,000 to fund both the investigation and the initial stages of litigation in the event that people were in fact being jailed for the failure to pay.
With this grant, two staff attorneys were able to continue the investigation, review dozens of case files for cases filed in 2014, speak to several different defense attorneys, and request copies of community service policies and payment records. From these records, we determined that fewer people were being asked to pay before their trial and the amount had fallen from as much as $100 a month to $30 per month. We also found no cases in which the records showed that the court had revoked somebody’s bond for missed attorney fee payments. The local attorneys we interviewed said that practice had changed. The combination of local advocacy by a dedicated criminal defense attorney and the fear of investigation by outsiders like TFDP seemed to make a difference. An additional case review completed just a few weeks ago found no orders for attorney fee payments pretrial.
The legacy of Lamar County’s old habits includes improved statewide legislation limiting attorney fee recoupment. In 2015, in response to documents and evidence that Lamar County had overcharged particular defendants for attorney fees, the state legislature agreed to adopt language in the recoupment statute that prevents a county from charging a defendant any amount of attorney fees more than the county actually expended. The legislature additionally adopted language clarifying that any recoupment order while a defendant is under community supervision pretrial or post-conviction requires a finding by a judge that the defendant can afford the recoupment. Members of the criminal jurisprudence committee had not been convinced this was a real problem until TFDP presented stories from Lamar County.
Before the end of 2015, there was one more cause for change in Lamar County—the public reprimand of the District Court Judge, Eric Clifford. In response to multiple complaints from defendants, defense attorneys, and other witnesses, in September of 2015, the State Commission on Judicial Conduct issued a 9-page Public Reprimand, which concluded that in a series of decisions on the bench and in his personal life Judge Clifford had violated a number of different judicial cannons of ethics and the Texas Constitution. Though Judge Clifford did not immediately resign, he subsequently resigned at the end of March 2016. Two months later, he agreed to be forever disqualified from judicial service in Texas in exchange for no further prosecution.
The combination of internal advocacy, outsider investigation, and the State Commission on Judicial Conduct’s findings led to significant change in Lamar County and statewide legislative changes that helped to alleviate discrimination against low-income defendants.