The Power to Appoint (6/14/99)
There has been a flurry of activity surrounding a bill on Governor George Bush's desk that changes the way indigent defendants receive their court appointed attorney. The bill (SB 247) does not change the fact that a person charged with a crime is entitled to counsel if he is too poor to afford one, but it does change who makes the decision as to which attorney will be appointed to represent him. Currently, that responsibility falls in the hands of the judge before whom the case is pending. The bill in question transfers this power from judges to the local commissioners court. The commissioners don't make the appointments directly but instead are given the authority and responsibility to designate an "appointing authority". It is this "authority" who will make the decision as to which lawyer in town will be tagged to defend a person alleged to have committed a crime.

And some judges, especially those in urban areas, are not happy about it. The current issue of the Texas Lawyer, a trade publication, has a headline that refers to judges being "irate" over the potential change. 

So what's the big deal? In rural counties, I don't think anyone will really get bent out of shape because of the legislation. In the big cities, however, look out. Let me tell you why.

My first month as a prosecutor was served in the Tarrant County D.A.'s office. Upon the first Friday on the job, my court partner and I loaded up a bunch of files and went to court for what was termed a "jail run".

I had no idea.

A "jail run" was a designated morning where 10 to 15 defendants who were to poor to make bond were brought over from jail and placed in a holding cell outside of a misdemeanor court. All of them had been incarcerated for two weeks or more, and the system suggested that it was possible that plea agreement could/should be made. The unwritten rule was: clear the jail out of these penny ante criminals.

The process was simple. The prosecutor would look at the file (forgery, possession of marijuana, minor theft) and determine if the defendant had served a sufficient time in jail to satisfy the price of the particular crime. If so, the the court appointed lawyer would offer the deal to the defendant who, if accepted, would enter a plea of guilty and receive "credit for time served". The prisoner, therefore, would get out of jail albeit with a conviction.

So what does this have to do with court appointed attorneys, you ask. Good question. In my "jail run" scenario, you see, it was the common practice for only one attorney to be appointed by the judge to represent every defendant on a jail run. It is a sweet deal. I don't recall how much the lawyer made per defendant, but it was probably around $75. Do the math, and it is not a bad morning's work.

So if you are a defense lawyer wanting to serve as the lawyer on a "jail run", how do you go about getting on the list? The answer is that there was no "list". It was completely within the discretion of the judge. Although my tenure with the DA's office was only for a couple of years, I was there long enought to see a pattern develop with certain judges as to who was appointed as the jail run attorney. Some of the same lawyers kept showing up time and time again on a particular court's jail run.

Now let's take a look at the dark side.

Judges are elected in Texas and in Tarrant County that requires money. Moreover, there is no question that a lawyer's political contribution to a judge running for election would help his chances for an appointment on a "jail run" if he wanted it. Therefore, a judge running for election had a built in fund raising incentive.  (Let me insert the standard boilerplate language that there are both good and bad judges out there, and I'm also certain that some judges made jail run appointments with no regard to who made a campaign contribution).

In a nutshell, the power to appoint is the power to raise money.

But with the potential new law, that power will be stripped away and placed in the hands of one individual selected by the commissioners court. The proposed statute lists no qualifications for who this "appointing authority" should be so presumably it can be someone other than a sitting judge. Furthermore, the statute attempts to do away with any favoritism by stating "The appointing authority shall evenly distribute appointments among qualified attorneys according to a public list, except that the appointing authority may appoint a particular attorney out of order if the appointing authority provides a written statement for the record stating the reason for that appointment".

Overall, it seems like a good idea. Nevertheless, judges and defense lawyers are condemning the bill and asking the governor to veto it. The state association of prosecutors is simply distancing itself from the bill claiming it was amended covertly.

With that many lawyers protesting, the legislation should be given a chance to work.

Update after this was originally published: Gov. Bush vetoed the bill

Barry Green is the District Attorney for the 271st Judicial District.

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