From the Office of State Senator Rodney Ellis

For Immediate Release
October 1, 1999
Contact: Jeremy Warren, (512) 463-0113

Ellis: 'Texas Asleep on the Job on Indigent Criminal Defense Issue'
Calls on Attorney General, Office of Court Administration to Study of Texas Courts

AUSTIN - In the wake of a federal court decision that legal experts warn could lead to further upheaval in Texas courts, Rodney Ellis (D-Houston) today called on Texas Attorney General John Cornyn to launch an independent review of every Texas court's indigent criminal defense appointment system to determine if Texas meets Sixth Amendment constitutional requirements.

Wednesday, U.S. District Judge David Hittner set aside the jury verdict and sentence of death row inmate Calvin Jerold Burdine because of Sixth Amendment violations committed by his appointed counsel. A 1995 investigation demonstrated that Mr. Burdine's attorney slept throughout the trial. Despite this evidence, the Texas Court of Criminal Appeals failed to act on Burdine's case.

"Like Rip Van Winkle, Texas has been asleep for 30 years when it comes to protecting indigent defendants constitutional right to counsel," said Ellis. "Judge Hittner's ruling is a wake up call that we must clean up our act or have the federal courts do it for us."

Ellis was joined by representatives of the Texas Criminal Defense Lawyers Association, Texas AppleSeed Foundation, the Diocese of Austin and other groups to call for change.

Ellis called on Attorney General Cornyn to study appointment procedures in courts across Texas to ensure they meet Sixth Amendment and Texas Constitutional requirements, and asked the Office of Court Administration to do a data survey of all Texas courts to determine what courts spend on indigent criminal defense and how they spend it.

"Now is the time for the State of Texas to get involved, study this issue, find out who is meeting constitutional requirements and who is not, so we can fix this problem once and for all," said Ellis.

Texas' system of criminal defense for indigent persons is one of the least effective in the nation. During the legislative session last spring, Ellis introduced SB 247, the most comprehensive attempt to strengthen the way Texas courts provide legal representation to indigent offenders in a decade. SB 247 would have ensured an indigent criminal defendant is provided legal counsel within a certain period of time, given county commissioners courts the authority to adopt formal procedures for indigent defense, allow counties to pool their resources to fund and create regional delivery systems, and provide for the Office of Court Administration to collect information regarding indigent criminal defense procedures and practice. SB 247 passed the Legislature unanimously, but was vetoed by Governor George W. Bush. Subsequent to the veto, the Judicial Section of the State Bar of Texas appointed a committee of judges to examine the problem and make recommendations to the section. Senator Ellis met with the committee last month to discuss reform issues.

In 1963, the U.S. Supreme Court ruled in Gideon v. Wainright, that every person has a constitutional right to a criminal defense lawyer in all felony cases. Currently, Texas' indigent criminal defense delivery system places the state and counties in jeopardy of lawsuits by inmates claiming violations of their constitutional rights. Texas ranks near the bottom of the nation in per capita spending on indigent defense, spending less than a dollar per capita per year on counsel for the poor. Judge Hittner's ruling puts Texas at risk of further appeals and reversals.

"The harsh reality is that, in Texas, poor defendants get a poor defense," said Ellis. "Reforming our indigent criminal system needs to be one of the top priorities of the 77th Texas Legislature. It is clear if we do not take action to improve our system, the courts will do it for us. We have lived through just such a scenario in our prisons and our schools. I don't think we want that with our courts."