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State Bar of Texas Legal Services to the Poor in Criminal Matters Committee: Review of the Operations of State Counsel for Offenders, 2017

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Review	of	the	Operations	of	State	Counsel	for	Offenders	
Report	by	the	State	Bar	of	Texas	
Legal	Services	to	the	Poor	in	Criminal	Matters	Committee1	
	
Approved	for	Publication	December	8,	2017	
	

Disclaimer:	 The	 following	 report	 and	 the	 underlying	 research	 were	
completed	 by	 members	 of	 the	 State	 Bar	 of	 Texas	 Legal	 Services	 to	 the	
Poor	in	Criminal	Matters	Committee.	The	report	should	not	be	construed	
as	representing	the	position	of	the	State	Bar	of	Texas	Board	of	Directors,	
the	Executive	Committee,	or	the	General	Membership	of	the	State	Bar.	
	
Introduction	
	
State	Counsel	for	Offenders	(SCFO)	provides	“indigent	offenders	who	are	incarcerated	in	
the	 Texas	 Department	 of	 Criminal	 Justice	 (TDCJ)	 with	 legal	 counsel	 or	 representation	
that	 is	 independent	 of	 the	 TDCJ-Correctional	 Institutions	 Division.”2	SCFO	 is	 organized	
into	four	sections:	Criminal	Defense;	Civil	Defense;	Appellate;	and	Legal	Services.3	SCFO	
is	 a	 division	 of	 TDCJ,	 the	 agency	 “which	 provides	 confinement,	 supervision,	
rehabilitation,	 and	 reintegration	 of	 the	 state’s	 convicted	 felons.”4	SCFO	 is	 one	 of	 the	
TDCJ	divisions	that	reports	directly	to	the	Texas	Board	of	Criminal	Justice	(TBCJ),	which	is	
“responsible	for	hiring	the	executive	director	of	the	department	[TDCJ]	and	setting	rules	
and	policies	which	guide	the	agency.”5	
	
Attorneys	 in	 the	 Criminal	 Defense	 section	 represent	 indigent	 inmates	 indicted	 for	
allegedly	committing	felonies	while	incarcerated	in	a	TDCJ	facility.6		Attorneys	in	the	Civil	
Defense	 section	 “represent	 indigent	 offenders	 who	 are	 subject	 to	 court	 proceedings	
under	the	Sexually	Violent	Predator	(SVP)	civil	commitment	statute.”7	The	Legal	Services	
section	 assists	 inmates	 in	 a	 variety	 of	 legal	 matters,	 including	 immigration	 removal	
proceedings;	 biennial	 reviews	 and	 petitions	 for	 release	 for	 clients	 under	 a	 civil	
																																																								

1	The	principal	author	of	this	report	is	Scott	Ehlers.	Melissa	Barlow	Fischer	conducted	the	legal	

research	on	the	provision	of	inmate	legal	services	in	other	states.	Other	members	of	the	2015-2016	
and	2016-2017	committee	reviewed	the	report,	provided	edits,	and	approved	the	final	report.		
2	State	Counsel	for	Offenders-What	We	Do,	TEX.	DEP’T	OF	CRIMINAL	JUSTICE,	
https://www.tdcj.state.tx.us/divisions/scfo/sco_what_we_do.html	(last	visited	July	27,	2016).	
3	Id.	
4	Texas	Board	of	Criminal	Justice,	TEX.	DEP’T	OF	CRIMINAL	JUSTICE,	
https://www.tdcj.texas.gov/tbcj/index.html	(last	visited	July	27,	2016).	
5	Id.	
6	State	Counsel	for	Offenders-Criminal	Defense	Section,	TEX.	DEP’T	OF	CRIMINAL	JUSTICE,	
https://www.tdcj.texas.gov/divisions/scfo/sco_criminal_defense_section.html	(last	visited	July	27,	
2016).	
7	State	Counsel	for	Offenders-Civil	Defense	Section,	TEX.	DEP’T	OF	CRIMINAL	JUSTICE,	
https://www.tdcj.texas.gov/divisions/scfo/sco_civil_defense_section.html	(last	visited	July	27,	
2016).	

	

		
commitment	order;	prisoner	exchange	programs	with	foreign	governments;	assistance	
to	inmates	in	filing	Petitions	for	Discretionary	Review	(PDRs);	nunc	pro	tunc	motions	to	
correct	 errors	 in	 a	 judgment;	 and	 other	 legal	 matters.8	Finally,	 the	 Appellate	 Section	
represents	inmates	in	civil	commitment	appeals;	criminal	appeals	where	an	attorney	in	
the	Criminal	Defense	section	represented	the	inmate;	and	occasionally	writs	of	habeas	
corpus.	 The	 Appellate	 Section	 also	 has	 “Time	 Specialist”	 legal	 assistants	 who	 assist	
inmates	with	time	credit	issues;	parole	and	mandatory	supervision	eligibility	questions;	
and	applications	for	shock	probation	or	a	time-cut.9	SCFO	“will	not	help	offenders	with	
civil	 rights	 issues,	 TDCJ	 policy	 or	 procedure	 issues,	 fee-generating	 cases,	 and	 various	
other	legal	issues	depending	upon	the	circumstances.”10	
	
Besides	 the	 Office	 of	 Capital	 and	 Forensic	 Writs,11	SCFO	 is	 the	 only	 other	 statewide	
public	defender	office	in	the	State	of	Texas.12	
	
Origins	and	Purpose	of	This	Report	
	
At	 the	 December	 6,	 2014,	 Board	 of	 Directors	 meeting	 of	 the	 Texas	 Criminal	 Defense	
Lawyers	Association	(TCDLA),	the	organization	passed	a	resolution	calling	for	“TCDLA	to	
Support	an	Independent	State	Counsel	for	Offenders	Established	Pursuant	to	ABA”	(see	
Appendix	 B).13	Scott	 Ehlers,	 a	 member	 of	 the	 State	 Bar’s	 Legal	 Services	 to	 the	 Poor	 in	
Criminal	 Matters	 Committee	 (LSPCM),	 is	 also	 a	 member	 of	 TCDLA’s	 Corrections	
Committee.	Other	members	of	the	Corrections	Committee	informed	Mr.	Ehlers	of	their	
ongoing	concern	about	the	lack	of	independence	of	SFCO	and	requested	that	the	LSPCM	
examine	the	issue	as	well.	Mr.	Ehlers	brought	the	issue	to	the	LSPCM	at	its	September	
25,	 2015	 meeting,	 and	 the	 committee	 determined	 that	 it	 was	 within	 the	 committee’s	
purview	and	warranted	further	examination.		
	
The	 purpose	 of	 this	 report	 is	 to	 determine	 if	 there	 are	 problems	 in	 the	 structure	 and	
operations	of	SCFO	and	the	provision	of	indigent	defense	services	to	inmates	in	Texas,	
and	 if	 so,	 make	 recommendations	 on	 how	 these	 problems	 can	 be	 addressed	 by	 the	
State	Bar	of	Texas	and/or	the	Texas	Legislature.		
	
																																																								
8	State	Counsel	for	Offenders-Legal	Services	Section,	TEX.	DEP’T	OF	CRIMINAL	JUSTICE,	

https://www.tdcj.texas.gov/divisions/scfo/sco_legal_services_section.html	(last	visited	July	27,	
2016).	
9	State	Counsel	for	Offenders-Appellate	Section,	TEX.	DEP’T	OF	CRIMINAL	JUSTICE,	
https://www.tdcj.texas.gov/divisions/scfo/sco_appellate.html	(last	visited	July	27,	2016).	
10	TEX.	DEP’T	OF	CRIMINAL	JUSTICE,	supra	note	2.		
11	See	OFFICE	OF	CAPITAL	WRITS,	http://www.ocw.texas.gov	(last	visited	July	27,	2016).	
12	The	Regional	Public	Defender	for	Capital	Cases	(RPDO)	is	another	statewide	public	defender	office	
in	Texas,	but	it	is	largely	funded	by	counties	who	have	contracted	with	that	office	to	provide	capital	
defense.	For	more	information	on	the	RPDO,	see:	http://rpdo.org	(last	visited	July	27,	2016).		
13	TEX.	CRIMINAL	DEF.	LAWYERS	ASSOC.,	TCDLA	Board	of	Directors	Meeting	Minutes,	(Dec.	6,	2014),	
http://www.tcdla.com/Images/TCDLA/Minutes/TCDLA%20Board%20of%20Directors%	
20Minutes_120614_%20final.pdf,	at	4-8.	

	

2	

		
	
	
Methodology	
	
The	LSPCM	determined	that	the	most	objective	means	of	examining	SCFO’s	operations	
was	to	base	its	assessment	on	the	American	Bar	Association’s	(ABA)	Ten	Principles	of	a	
Public	Defense	Delivery	System	(see	Appendix	A).14	The	Ten	Principles:	
	
were	 sponsored	 by	 the	 ABA	 Standing	 Committee	 on	 Legal	 and	 Indigent	
Defendants	 and	 approved	 by	 the	 ABA	 House	 of	 Delegates	 in	 February	
2002.	The	Principles	were	created	as	a	practical	guide	for	governmental	
officials,	 policymakers,	 and	 other	 parties	 who	 are	 charged	 with	 creating	
and	funding	new,	or	improving	existing,	public	defense	delivery	systems.	
The	 Principles	 constitute	 the	 fundamental	 criteria	 necessary	 to	 design	 a	
system	that	provides	effective,	efficient,	high	quality,	ethical,	conflict-free	
legal	representation	for	criminal	defendants	who	are	unable	to	afford	an	
attorney.15	
	
The	Principles	combine	indigent	defense	guidelines	developed	by	various	organizations	
including	 the	 ABA,	 the	 National	 Legal	 Aid	 and	 Defender	 Association	 (NLADA),	 the	
National	 Advisory	 Commission	 on	 Criminal	 Justice	 Standards	 and	 Goals	 (NAC),	 and	 the	
National	 Study	 Commission	 on	 Defense	 Services	 (NSC). 16 	The	 ABA’s	 more	 extensive	
policy	statement	on	indigent	defense	services	is	contained	within	the	ABA	Standards	for	
Criminal	 Justice,	 Providing	 Defense	 Services	 (3d	 ed.	 1992).	 SCFO’s	 Policies	 and	
Procedures	 Manual	 recognizes	 the	 authority	 of	 the	 ABA	 Standards	 for	 Criminal	 Justice	
when	it	notes	that	“SCFO	attorneys	shall	look	to	the	ABA	Standards	for	Criminal	Justice	
when	issues	regarding	the	acceptable	range	of	performance	are	in	question.”17	
	
This	 report	 is	 largely	 based	 on	 an	 online	 survey	 of	 current	 and	 former	 employees	 of	
SCFO	and	criminal	defense	attorneys	familiar	with	SCFO’s	work,	that	was	available	from	
March	 7-18,	 2016.	 The	 survey	 questions	 were	 based	 on	 the	 ABA’s	 Ten	 Principles	 of	 a	
Public	Defense	Delivery	System.	Survey	respondents	were	given	standardized	responses	
from	which	to	choose,	as	well	as	an	opportunity	to	provide	open-ended	feedback	after	
each	 question.	 Survey	 participants	 were	 given	 the	 choice	 of	 whether	 their	 answers	
would	be	anonymous	(to	protect	persons	who	feared	potential	retribution)	or	to	have	
their	 answers	 attributed	 to	 the	 respondent.	 Additional	 questions	 were	 asked	 of	 SCFO	
																																																								

14	STANDING	COMMITTEE	ON	LEGAL	AND	INDIGENT	DEFENDANTS,	AMERICAN	BAR	ASSOCIATION,	Ten	Principles	of	
a	Public	Defense	Delivery	System	(Feb.	2002),	available	at	
http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_
def_tenprinciplesbooklet.authcheckdam.pdf	[hereinafter	ABA,	Ten	Principles].	
15	Id.,	at	Introduction.	
16	Id.,	at	Notes,	at	4-5.	
17	STATE	COUNSEL	FOR	OFFENDERS,	Employee	Manual,	Policies	and	Procedures	Manual,	Ch.	1-Section	6	
(Jan.	2016).	

	

3	

		
through	 an	 information	 request	 that	 was	 submitted	 through	 Senator	 Rodney	 Ellis’s	
office.	The	LSPCM	also	conducted	research	on	how	other	states	provide	legal	services	to	
inmates	to	determine	how	Texas	compares	to	those	other	states.		
	
At	 the	 LSPCM’s	 July	 29,	 2016,	 meeting,	 some	 members	 expressed	 concern	 that	 no	
prosecutors	had	responded	to	the	survey.	LSPCM	members	expressed	a	desire	for	the	
report	to	include	the	perspective	of	some	prosecutors	from	the	Special	Prosecution	Unit	
(SPU),	who	work	with	SCFO	attorneys	on	a	regular	basis.	As	a	result,	two	former	and	two	
current	 SPU	 attorneys	 were	 interviewed	 over	 the	 phone	 to	 get	 their	 perspective	 on	
some	key	aspects	of	SCFO	operations.	

FIGURE	1	

	
Characteristics	of	Survey	Participants	
	
Overall,	 31	 people	 responded	 to	 the	 survey.	 Of	 those,	 13	 (42%)	 respondents	 said	 that	
the	committee	could	attribute	their	comments	to	them	by	name,	and	18	(58%)	said	that	
they	would	prefer	that	their	comments	not	be	attributed	to	them	individually.	
	
Most	 respondents	 described	 themselves	 as	 being	 former	 employees	 (64.5%),	 with	
19.4%	(6)	being	current	employees	and	the	same	amount	being	defense	attorneys	who	
are	familiar	with	the	work	of	SCFO:	
	
As	 a	 point	 of	 comparison,	 as	 of	 January	 31,	 2016,	 SCFO	 reported	 employing	 23	
attorneys,	including	the	Director.18	So	this	survey	represents	26	percent	of	the	attorney	
employees	of	SCFO.		
		
Current	 and	 former	 SCFO	 employees	 were	 asked	 specific	 questions	 pertaining	 to	 their	
experience	 before	 joining	 SCFO,	 what	 their	 initial	 position	 was,	 and	 how	 much	
experience	they	had	in	the	various	sections.		
																																																								

18	Information	Request	on	State	Counsel	for	Offenders	(SCFO),	provided	to	the	Office	of	Sen.	Rodney	

Ellis	by	email	(March	7,	2016),	at	1	[hereinafter	Information	Request	on	SCFO].	

	

4	

May we attribute your comments and concerns to you by name or would you
		
prefer that we not mention you by name?
(31 responses)

	
Most	 respondents	 had	 one	 to	 three	 years	 of	 experience	 before	 joining	 SCFO.	 A	
significant	number	had	over	ten	years	of	experience	before	joining	the	office.	
13 (41.9%)
Feel free to…
	
18 (58.1%)

I prefer my c…

0

2

4

6

8

10

Which of the following best describes you:

12

14

16

18

(31 responses)

6 (19.4%)

Current empl…
Former empl…

20 (64.5%)
6 (19.4%)

Defense atto…
Prosecutor w…

0 (0%)

Judge who h…

0 (0%)

FIGURE	2	

	
Other 0 (0%)
Most	 former	 or	 current	 employees	 initially	 started	 at	 the	 Attorney	 I	 or	 Attorney	 III	
0
2
4
6
8
10
12
14
16
18
20
position.	Most	respondents	are	currently	or	were	an	Attorney	III	when	they	left.	
	

(For Current or Former SCFO Employees) What was your initial position at
State Counsel for Offenders?
(23 responses)

9 (39.1%)

Attorney I
3 (13%)

Attorney II
Attorney III

8 (34.8%)

Attorney IV

2 (8.7%)
1 (4.3%)

Attorney V
0

1

2

3

4

5

6

7

8

9

FIGURE	3	
	
(For Current or Former SCFO Employees) What is your current or last position
	
at SCFO?
	
(25 responses)
	
	
	

https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO8…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses

	

5	

Page 4 of 28

Attorney III

8 (34.8%)

Attorney IV

2 (8.7%)
1 (4.3%)

Attorney V
0

1

2

		
3

4

5

6

7

8

9

	

(For Current or Former SCFO Employees) What is your current or last position
at SCFO?
(25 responses)
Survey on Operations of State Counsel for Offenders - Google Forms

Attorney I

4/17/16, 11:56 AM

	

1 (4%)
3 (12%)

Attorney II

https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO8…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses

Attorney III
Attorney IV

Page 4 of 28

16 (64%)
2 (8%)

FIGURE	4	

	 Current or Former SCFO Employees) Please indicate how much time you have spent in the
(For
How	SCFO	and	Texas’s	Inmate	Indigent	Defense	System	Measure	Up	to	
following
sections of SCFO:

the	ABA’s	Ten	Principles	

	
Appellate

(16 responses)

In	 the	 following	 sections	 we	 examine	 the	 extent	 to	 which	 SCFO	 and	 Texas’s	 indigent	
defense	system	for	inmates	complies	with	the	ABA’s	Ten	Principles	of	a	Public	Defense	
Delivery	System.	We	provided	excerpts	of	the	“Commentary”	for	each	of	the	principles	
7 (43.8%)
< 1 year
to	 explain	 the	 principles	 further.	 It	 should	 be	 noted	 that	 we	 could	 not	 include	 in	 the	
8 (50%)
1 – 3 years
survey	questions	a	full	exploration	of	all	of	the	issues	covered	in	the	“Commentary”	in	
order	
to	 keep	
4 – 6 years
0 (0%)the	 survey	 at	 a	 manageable	 length.	 All	 concepts	 contained	 in	 the	
“Commentary”	 may	 not	 be	 directly	 applicable	 to	 the	 provision	 of	 indigent	 defense	
7 – 9 years
1 (6.3%)
services	to	inmates	in	various	counties.				
	 > 10 years 0 (0%)
Principle	1:	The	public	defense	function,	including	the	selection,	funding,	and	payment	
0
1
2
3
4
5
6
7
8
of	defense	counsel19	is	independent.		
	
	
As	the	“Commentary,”	to	Principle	1	explains,		
(19 responses)
Trial
The	 public	 defense	 function	 should	 be	 independent	 from	 political	
influence	and	subject	to	judicial	supervision	only	in	the	same	manner	and	
7 (36.8%)
< 1 year
to	the	same	extent	as	retained	counsel.	To	safeguard	independence	and	
1 – 3 years
to	promote	efficiency	and	quality	of	services,	a	nonpartisan	board	should	8 (42.1%)
20
oversee	defender,	assigned	counsel,	or	contract	systems.
	
4 – 6 years
3 (15.8%)

	
7 – 9 years
0 (0%)
Art.	26.051	of	the	Code	of	Criminal	Procedure	governs	the	appointment	of	counsel	for	
1 (5.3%)
> 10 years
an	indigent	inmate	accused	of	committing	a	crime	while	in	custody	of	the	correctional	
																																																								
0
1
2
3
4
5
6
7
8

19	The	ABA	Ten	Principles	defines	“counsel”	as	including	“a	defender	office,	a	criminal	defense	
attorney	in	a	defender	office,	a	contract	attorney,	or	an	attorney	in	private	practice	accepting	
appointments.”	See	n.1	at	4	of	the	ABA’s	TEN	PRINCIPLES	OF	A	PUBLIC	DEFENSE	DELIVERY	SYSTEM.	
20	ABA,	Ten	Principles,	supra	note	14,	at	2.	
Civil
Commitment (22 responses)

	

6	

< 1 year
1 – 3 years

6 (27.3%)
15 (68.2%)

		
institutions	 division	 of	 TDCJ,	 though	 SCFO	 is	 never	 mentioned	 by	 name.	 A	 court	 shall	
notify	the	Texas	Board	of	Criminal	Justice	if	it	determines	that	a	defendant	before	the	
court	 is	 indigent	 and	 is	 an	 inmate	 and	 request	 that	 the	 board	 provide	 legal	
representation.21	Statute	requires	the	board	to	provide	such	representation,	and	it	“may	
employ	 attorneys,	 support	 staff,	 and	 any	 other	 personnel	 required	 to	 provide	 legal	
representation	for	those	inmates.	All	personnel	…	are	directly	responsible	to	the	board	
in	the	performance	of	their	duties.	The	board	shall	pay	all	fees	and	costs	associated	with	
providing	 legal	 representation	 for	 those	 inmates.”22	A	 court	 may	 appoint	 an	 attorney	
other	 than	 an	 SCFO	 attorney	 if	 it	 determines	 there	 is	 a	 conflict	 of	 interest.23	When	 a	
court	 appoints	 an	 attorney	 other	 than	 from	 the	 SCFO,	 provisions	 of	 the	 Texas	 Fair	
Defense	 Act	 regarding	 appointment	 of	 counsel	 apply	 to	 that	 appointment,	 and	 the	
county	in	which	the	correctional	facility	exists	shall	pay	the	expenses	of	conflict	counsel,	
to	be	reimbursed	by	the	State.24	
	
As	 previously	 noted,	 SCFO	 is	 a	 division	 of	 TDCJ,	 the	 same	 agency	 that	 incarcerates	
SCFO’s	clients.	It	is	true	that	SCFO	is	not	directly	supervised	by	the	Executive	Director	of	
TDCJ,	but	rather,	as	previously	noted,	the	division	reports	directly	to	the	Texas	Board	of	
Criminal	Justice,	which	oversees	all	TDCJ	operations.	Nonetheless,	SCFO	does	not	have	
independent	budget	authority,	and	falls	under	TDCJ’s	budget,	although	one	would	not	
know	it	by	looking	at	TDCJ’s	budget	in	the	General	Appropriations	Act	for	the	2016-2017	
Biennium.	SCFO	is	never	mentioned,	nor	is	the	provision	of	legal	services	to	inmates.25	
SCFO	 is	 mentioned	 in	 TDCJ’s	 FY	 2016	 annual	 budget,	 listed	 under	 Goal	 C,	 “Incarcerate	
Felons,”	Strategy	C.1.4,	“Offender	Services.”26	
	
The	lack	of	independence	for	the	public	defender	in	charge	of	defending	Texas	inmates	
stands	 in	 stark	 contrast	 to	 the	 agency	 in	 charge	 of	 prosecuting	 inmates	 accused	 of	
committing	 crimes	 in	 prison,	 the	 Special	 Prosecution	 Unit	 (SPU).	 According	 to	 the	
statute	establishing	the	SPU,	“[t]he	special	prosecution	unit	is	an	independent	unit	that	
cooperates	 with	 and	 supports	 prosecuting	 attorneys	 in	 prosecuting	 offenses	 and	
delinquent	conduct	described	by	Article	104.003(a),	Code	of	Criminal	Procedure.”27	Art.	
104.003(a),	 Code	 of	 Criminal	 Procedure,	 refers	 to	 crimes	 committed	 on	 TDCJ	 or	 Texas	
Juvenile	Justice	Department	(TJJD)	property.	The	SPU	is	governed	by	a	board	of	directors	
composed	of	each	prosecuting	attorney	from	a	county	in	which	a	correctional	facility	or	
TJJD	facility	is	located	who	has	entered	into	a	memorandum	of	understanding	with	SPU	
																																																								
21	TEX.	CODE	CRIM.	PROC.	ANN.	art.	26.051(d)	(West	2015).		
22	TEX.	CODE	CRIM.	PROC.	ANN.	art.	26.051(e)	(West	2015).	

23	TEX.	CODE	CRIM.	PROC.	ANN.	art.	26.051(g)	(West	2015).	
24	TEX.	CODE	CRIM.	PROC.	ANN.	art.	26.051(h)-(i)	(West	2015).	
25	Gen.	Appropriations	Act,	2016-2017	Biennium,	H.B.	1,	84th	Sess.	V-4	to	V-21	(Tex.	2015),	
http://www.lbb.state.tx.us/Documents/GAA/General_Appropriations_Act_2016-2017.pdf	
[hereinafter	Gen.	Appropriations	Act].	
26	Tex.	Dep’t	of	Criminal	Justice,	Agency	Operating	Budget	2016	as	prepared	for	the	Texas	Board	of	
Criminal	Justice	(Aug.	7,	2015),	
http://tdcj.state.tx.us/documents/finance/Agency_Operating_Budget_FY2016.pdf.		
27	TEX.	GOV’T	CODE	§	41.302	(West	2015).	

	

7	

law before you accepted a job with SCFO?
(25 responses)

		

5 (20%)

< 1 year

11 (44%)

1 – 3 years

to	 prosecute	 crimes	 committed	 in	 those	 facilities.28	The	 executive	 board	 employs	 a	
4 – 6 years
1 (4%)
prosecutor	to	serve	as	the	chief	of	the	unit,	and	other	persons	are	employed	at	the	SPU	
29
7 – 9 years
1 (4%)
as	well.
	The	SPU	is	mentioned	20	times	in	the	latest	General	Appropriations	Act,	and	
30
7 (28%)
> 10 years
has	a	specific	line	item	under	the	Comptroller’s	Judiciary	Section	budget.
	
	
0
1
2
3
4
5
6
7
8
9
10
11
Our	survey	asked	three	questions	regarding	SCFO’s	independence	from	the	influence	of	
TDCJ	 management,	 control	 over	 its	 budget	 and	 operations,	 and	 the	 independence	 of	
defense	 lawyers	 who	 work	 at	 SCFO	 to	 zealously	 represent	 their	 clients.	 The	 first	
question	was	as	follows:	
Survey
	

1(a). I believe that SCFO is adequately independent from the influence of
management at the Texas Department of Criminal Justice, the SCFO has
adequate control over its budget, and no additional operational independence
is needed for SCFO to effectively represent inmate clients.
(31 responses)

Strongly Agree
Agree
58.1%

Neutral
Disagree
Strongly Disagree
Don’t Know

9.7%

25.8%

FIGURE	5	

	 1(b). Any comments about SCFO’s independence from TDCJ: (19 responses)
Nearly	84	percent	of	respondents	either	strongly	disagreed	or	disagreed	with	the	
statement	that	SCFO	was	adequately	independent	from	TDCJ	management,	had	
While at SCFO, litigation strategies were changed based on management's perception of how TDCJ officials would
adequate	control	over	its	budget,	and	did	not	need	additional	operational	
react. For instance, when a prosecutor was using partial parole records against a client, and the attorneys
independence	to	effectively	represent	inmate	clients.	No	respondent	strongly	agreed.	
representing the client wanted to subpoena the remainder of the client's parole records, then-director Kim Vernon
	 would not allow it due to how the parole board would react (Vernon was a former BPP member).
Some	of	the	negative	comments	provided	by	survey	respondents	were	as	follows.	
Comments	in	all	of	the	following	sections	were	edited	for	length	and	to	correct	
https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO8…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses
Page 6 of 28
typographical	errors.		
	
• You	 cannot	 be	 independent	 from	 the	 Agency	 that	 controls	 the	 purse	 strings.	
Their	 goal	 seems	 to	 be	 providing	 an	 illusion	 of	 representation	 rather	 than	
actively	advocating	for	a	position	contrary	to	the	Agency's	interests.	
	
																																																								
28	TEX.	GOV’T	CODE	§	41.303(a)	(West	2015).	
29	TEX.	GOV’T	CODE	§	41.308	(West	2015).	
30	Gen.	Appropriations	Act,	supra	note	24,	at	IV-35	to	IV-37.	

	

8	

		
•

I	 was	 directed	 to	 withdraw	 from	 representing	 a	 client	 after	 the	 SCFO	 Director	
returned	from	a	TDCJ	Board	meeting	in	the	summer	of	2013.	A	number	of	other	
attorneys	were	also	directed	to	change	legal	strategies	in	particular	cases	when	
the	SCFO	Director	returned	from	the	TDCJ	Board	meeting.	

•

SCFO	leadership	bends	to	the	will	of	TDCJ	and	doesn't	want	to	rock	the	boat.	For	
instance,	 TDCJ	 supplied	 subpoenaed	 documents	 with	 redactions	 to	 SCFO	
attorneys,	while	real	world	attorneys	had	no	such	redactions.	…	SCFO	attorneys	
may	 not	 subpoena	 high	 ranking	 individuals	 or	 even	 parole	 division	 employees	
without	receiving	approval	from	the	SCFO	Director.	…TDCJ	has	objected	to	SCFO	
making	videos	inside	the	units	for	their	cases,	so	SCFO	attorneys	must	take	still	
photos	only.	Other	real	world	attorneys	do	not	have	this	limitation.	Although	in	
theory,	the	SCFO	attorneys	could	file	a	motion	for	court	order	to	video,	all	such	
requests	 must	 be	 first	 justified	 and	 approved	 by	 the	 SCFO	 Director.	 To	 my	
knowledge,	none	have	been	permitted	as	justified	since	this	policy	was	imposed.	
Attorneys	at	SCFO	have	also	been	prohibited	from	filing	some	motions	to	assist	
their	mentally	ill	clients,	since	TDCJ	does	not	have	a	program	to	treat	and	restore	
mentally	 ill	 inmates	 who	 are	 pending	 new	 charges.	 SCFO	 attorneys	 are	 not	
allowed	to	challenge	TDCJ's	failure	to	treat	or	restore	and	seek	dismissal	of	the	
charges	 for	 their	 clients.	 The	 civil	 commitment	 section	 was	 also	 limited	 by	
complaints	 from	 TDCJ	 brass	 to	 the	 SCFO	 Director	 about	 the	 vigorous	
representation	of	civil	commitment	clients.	

•

TDCJ	 controls	 every	 part	 of	 SCFO's	 operations	 through	 the	 inadequate	 budget.	
	
Any	out	of	the	ordinary	filings	must	be	approved	by	the	SCFO	chief,	who	usually	
takes	the	request	to	the	TDCJ	Board.	This	was	the	major	issue	I	had,	because	if	
SCFO	was	independent	from	TDCJ	that	would	not	have	to	happen.	I	understand	
the	 chief	 needing	 to	 review	 for	 the	 sake	 of	 SCFO,	 but	 the	 Board	 determining	
what	legal	actions	SCFO	lawyers	can	take	is	very	inappropriate.	

	

	

•

	
•

We	had	severe	restrictions	on	travel	(which	is	absolutely	necessary	to	see	client's	
scattered	 around	 the	 State),	 we	 had	 faulty	 and	 bad	 equipment	 that	 was	
emblazoned	 with	 TDCJ	 logos	 (like	 laptops	 to	 attempt	 to	 use	 in	 court),	 and	 our	
director	 (both	 Kim	 Vernon	 and	 Rudolph	 Brothers)	 would	 share	 managerial	 tips	
and	direction	from	other	directors	at	TDCJ.	

•

It	is	an	ongoing	problem	that	top	management	gives	orders	that	conflict	with	the	
interest	 of	 clients	 we	 serve	 to	 support	 the	 actual	 or	 perceived	 desires	 of	 the	
Board	of	Criminal	Justice.	This	included	an	ongoing	order	not	to	subpoena	TDCJ	
witnesses	 in	 criminal	 cases,	 orders	 not	 to	 seek	 correction	 of	 prison	 refusals	 to	
provide	 privileged	 communication	 with	 clients,	 and	 an	 order	 from	 the	 director	

	

	

9	

		
not	to	file	any	motion	for	mentally	ill	clients	who	were	not	receiving	restoration	
services	ordered	by	the	courts.	These	are	only	a	few	examples.	

	
There	were	two	respondents	who	did	not	have	negative	comments	in	response	to	this	
question:	
	
• In	 my	 time	 there,	 I	 never	 personally	 felt	 hindered	 by	 the	 TDCJ	 affiliation,	 but	 I	
had	colleagues	who	did.	
	
• I	worked	there	for	about	9	years,	from	1997	to	2006.	I	mostly	worked	appellate,	
habeas,	 and	 time	 credit.	 I	 never	 had	 any	 trouble	 with	 funding	 or	 oversight.	 I	
think	 having	 the	 close	 relationship	 helped	 me	 because	 I	 had	 access	 to	 prison	
records	 as	 an	 employee	 that	 outside	 lawyers	 didn't.	 I	 never	 felt	 that	 TDCJ	 ever	
influenced	any	decisions	I	made	for	my	clients	or	for	the	inmates	to	whom	I	sent	
general	letters	or	information.	
	
The	second	question	pertaining	to	independence	examined	whether	SCFO	policies	and	
rules	hampered	the	zealous	representation	of	SCFO	clients.		
	

2(a). I believe that SCFO’s policies and office rules do not hamper zealous
representation of SCFO’s clients to the full extent permitted by law.
(31 responses)

Strongly Agree
Agree

54.8%

Neutral
Disagree
Strongly Disagree
Don’t Know

12.9%

22.6%

FIGURE	6	

	 2(b). Any comments about SCFO’s policies and office rules relating to the
representation of clients:
More	than	three-out-of-four	(77.4%)	respondents	either	strongly	disagreed	(54.8%)	or	
(18 responses)

disagreed	(22.6%)	with	the	statement	that	“SCFO’s	policies	and	office	rules	do	not	
hamper	zealous	representation	of	SCFO’s	clients	to	the	full	extent	permitted	by	law.”	No	
respondent	strongly	agreed.	
Management wanted to be aware of any motions to be filed that were not standard pre-trial motion. The point of that
	 oversight was to make sure attorneys did not "rock the boat" with any TDCJ officials.
Some	of	the	representative	comments	provided	by	survey	respondents	were	as	follows:	
Again, I was never personally restrained in my representation of clients, but my colleagues were sometimes
	 micromanaged for reasons that appeared secondary to the main mission of zealous representation. The SCFO
administration generally did a poor job of treating its lawyers with professional respect, which contributed to poor morale.
I believe that the penny pinching bureaucracy cuts off advocacy at its source. If you are underpaid and constantly fighting
with the administration for things like experts and subpoenas, your advocacy is going to take a hit.

	

10	

Again, I never had an issue, but I know that there were some trial lawyers who felt differently. A few I believe had their
own conflicts, while others I think truly believed they were not being fully supported by their superiors
During my time at State Counsel there was very little interference with the manner in which I pursued the cases in which I

		
•

I	 once	 had	 a	 client	 that	 wanted	 to	 refuse	 parole	 in	 order	 to	 complete	 sex	
offender	treatment	and	try	to	avoid	civil	commitment.	I	called	the	parole	division	
just	to	try	and	find	out	the	status	of	his	parole	review.	General	Counsel	for	the	
Parole	Board	contacted	the	SCFO	director	who	told	me	not	to	ever	contact	the	
Parole	Board	or	Parole	Division	again.	

•

Many	of	SCFO's	policies	and	office	rules	are	unwritten.	Sometimes,	instructions	
about	what	can't	be	done	are	put	into	emails.	After	I	was	transferred	from	civil	
commitment	section	to	the	trial	section,	I	was	told	I	could	have	no	contact	with	
any	of	the	civil	commitment	clients,	and	I	was	told	I	should	not	even	take	phone	
calls	 or	 risk	 discipline.	 Despite	 the	 fact	 that	 I	 still	 had	 hundreds	 of	 appeals	
pending	 for	 a	 time	 after	 my	 transfer.	 …	 Attorneys	 are	 not	 encouraged	 to	 take	
lots	 of	 cases	 to	 trial	 because	 of	 the	 associated	 costs.	 Doing	 so	 is	 viewed	 as	 a	
failure,	not	a	success	even	when	the	outcome	is	better	at	trial	than	a	settlement	
could	have	achieved.	

•

I	 frequently	 found	 that	 SCFO	 policies	 and	 rules	 either	 directly	 hampered	 basic	
representation	 (not	 to	 mention	 zealous	 representation)	 or	 discouraged	 zealous	
representation	 by	 attempting	 to	 dis-incentivize	 zealous	 representation.	 This	
included:	 limiting	 working	 hours	 (even	 directly	 preceding	 trials),	 failing	 to	
provide	 functioning	 access	 to	 legal	 research,	 prohibiting	 accessing	 office	 legal	
research	from	outside	the	office,	ongoing	failure	to	provide	basic	legal	material	
necessary	 for	 trials	 (such	 as	 pattern	 jury	 charge	 books),	 and	 refusing	 to	 let	
investigators	access	social	media	or	run	records	searches	for	missing	witnesses.	
Again,	this	only	notes	a	few	of	the	many	problems.	

•

State	 Counsel	 has	 an	 internal	 policy	 that	 keeps	 State	 Counsel	 attorneys	 from	
requesting	 authorized	 petitions	 for	 releases	 from	 the	 Texas	 Civil	 Commitment	
Office.	 Supposedly,	 management	 will	 make	 the	 contact,	 but	 that	 has	 never	
happened.	

	

	

	

	
Once	 again,	 there	 were	 two	 respondents	 to	 the	 survey	 who	 did	 not	 generally	 express	
problems	with	SCFO	policies	hampering	representation	of	staff	counsel.	Their	comments	
were:	
	
• During	 my	 time	 at	 State	 Counsel	 there	 was	 very	 little	 interference	 with	 the	
manner	in	which	I	pursued	the	cases	in	which	I	was	assigned.	This	is	especially	
true	 while	 I	 was	 in	 the	 appellate	 section	 where	 I	 encountered	 no	 interference	
whatsoever.	However,	the	time	it	did	occur	troubled	me	as	I	(along	with	the	rest	
of	 the	 civil	 commitment	 section)	 were	 told	 not	 to	 pursue	 a	 certain	 type	 of	
defense	in	civil	commitment	cases.	
	

	

11	

Approximately 200 men were asked to sign waivers of due process hearings or appear at District Court hearings without
representation of counsel. I was particularly distressed to see several men request appointed counsel and their request
was simply ignored by the Trial Judge. I believe that this is an example of the routine neglect of legal matters entrusted to
SCFO.
		
See above.

• fact
I	agree	with	the	above	[survey]	statement	except	for	having	to	get	approval	for	
The
that SCFO personnel were required to cooperate with the OIG investigation and disciplinary mentioned in 1(b)
aboverecusals	and	mandamus	issues.	
is evidence that their office policies, practices or rules create a conflict of interest with their responsibilities to their
clients. I have no personal knowledge of current policies and office rules, but have had SCFO attorneys tell me that there
has not been much of a change.

	
A	third	question	that	was	asked	pertained	to	the	independent	discretion	of	SCFO	
SCFO is constantly intimidated and under-resourced by TDCJ.
lawyers	to	adequately	represent	their	clients:	
	

3(a). I believe lawyers within SCFO have sufficient independent discretion to
adequately represent their clients.
(30 responses)

Strongly Agree
40%

Agree
Neutral
Disagree
Strongly Disagree
Don’t Know

30%

16.7%

FIGURE	7	 discretion of lawyers within SCFO.
3(b). Any comments about the independent

	 (14 responses)
Seventy	percent	of	respondents	either	strongly	disagreed	(40%)	or	disagreed	(30%)	with	
the	Again,
statement	
that	I had
SCFO	
“have	
independent	
discretion	
perhaps because
better attorneys	
relationships with
people, sufficient	
I never felt restricted,
but I had colleagues
who did.to	
adequately	 represent	 their	 clients.”	 One	 respondent	 (3%)	 strongly	 agreed	 with	 the	
Some units refuse to give us private conferences with our clients. When this is brought up to senior management, we are
statement.	
told to meet with our clients in court. Meeting with them in court is also a problem because policy dictates that the
	 guards have "eyes on" the client at all times. Some chain crews will give you space, others won't.
A	 recurring	 theme	 among	 respondents	 to	 the	 survey	 and	 some	 individual	 interviews	
See above comments in 2(b)
with	 former	 SCFO	 employees	 was	 that	 SCFO	 management	 inappropriately	 interfered	
It depends on what department and administrator were in charge. Traditionally, appellate and trial were left alone.
with	their	ability	to	represent	their	clients.	Comments	included:		
civil commitment traditionally took away much of the discretion of the individual lawyers to fight for their
	 However,
clients.
• It	depends	on	what	department	and	administrator	were	in	charge.	Traditionally,	
Any motion that an attorney makes on a case that is not strictly routine must be run past the SCFO Director for approval.
appellate	and	trial	were	left	alone.	However,	civil	commitment	traditionally	took	
The Director required one attorney to "unfile" a counterclaim in a civil commitment case that was pending and important.
away	much	of	the	discretion	of	the	individual	lawyers	to	fight	for	their	clients.	
	
• SCFO	 management	 is	 eager	 to	 restrict	 the	 independent	 discretion	 of	 the	
attorneys	who	try	civil	commitment	cases.	Despite	the	fact	that	the	agency	had	
never	 won	 a	 case,	 management	 discouraged	 every	 single	 innovative	 strategy	
attempted	while	I	was	at	SCFO.	
	
• There	is	no	doubt	that	the	Legal	Assistants	are	more	valued	than	the	Attorneys.	
The	 system	 in	 place	 is	 designed	 and	 highly	 favorable	 towards	 the	 Legal	
Assistants,	 and	 unfavorable	 for	 the	 Attorneys.	 For	 the	 most	 part,	 the	 Legal	
	

12	

		
Assistants	 are	 trained	 and	 expected	 to	 generate	 the	 same	 cookie	 cutter	
documents.	 If	 an	 Attorney	 wishes	 to	 have	 "independent	 discretion"	 that	 goes	
outside	 the	 norm,	 the	 Legal	 Assistant	 will	 likely	 notify	 the	 supervisor	 who	 will	
return	the	Attorney	back	within	the	parameters.	SCFO	is	not	set	up	for	Attorneys	
to	 have	 independent	 discretion	 and	 zealously	 represent	 clients,	 but	 again,	 the	
appearance	 of	 representation	 and	 not	 stepping	 on	 the	 toes	 of	 the	 Special	
Prosecution	Unit.	

	
•

While	 some	 lawyers	 take	 the	 approach	 of	 ignoring	 legally	 indefensible	 orders,	
not	all	do.	Consequently,	some	of	the	lawyers	do	maintain	the	independence	to	
adequately	represent	clients.	Some	whole	sections	have	reached	the	point	were	
client	service	seems	to	be	second	to	the	mere	appearance	of	client	service.	The	
general	 legal	 section	 is	 notorious	 for	 refusing	 to	 answer	 client	 legal	 questions,	
and	 merely	 directing	 clients	 to	 seek	 the	 answers	 on	 their	 own	 from	 the	 prison	
law	library.	When	an	attorney	writes	an	in	depth	legal	response,	this	can	bring	
the	attention	of	management,	who,	in	turn,	recommends	a	form	letter	instead.	
An	 attorney	 not	 complying	 can	 expect	 to	 have	 their	 work	 scrutinized	 for	 the	
purpose	of	pursuing	disciplinary	action	against	the	employee	if	legal	fault	can	be	
found.	

•

We	 must	 remain	 concerned	 about	 whether	 upper	 management	 and	 the	 Board	
will	prevent	us	from	filing	motions	or	taking	other	actions	that	would	be	in	the	
best	interests	of	our	client	and	that	would	be	available	to	a	zealous	free-world	
attorney.	

	

	
Once	 again,	 there	 were	 two	 respondents	 who	 generally	 did	 not	 have	 negative	
responses:	
	
• Perhaps	 because	 I	 had	 better	 relationships	 with	 people,	 I	 never	 felt	 restricted,	
but	I	had	colleagues	who	did.	
	
• I	always	have	independent	discretion	minus	mandamus	and	recusal	issues.	
	
Principle	2:	Where	the	caseload	is	sufficiently	high,	the	public	defense	delivery	system	
consists	of	both	a	defender	office	and	the	active	participation	of	the	private	bar.		
	
	
The	“Commentary”	to	Principle	2	states:		
	
The	 private	 bar	 participation	 may	 include	 part-time	 defenders,	 a	
controlled	 assigned	 counsel	 plan,	 or	 contracts	 for	 services.	 The	
appointment	process	should	never	be	ad	hoc,	but	should	be	according	to	
a	 coordinated	 plan	 directed	 by	 a	 full-time	 administrator	 who	 is	 also	 an	
attorney	 familiar	 with	 the	 varied	 requirements	 of	 practice	 in	 the	
jurisdiction.	Since	the	responsibility	to	provide	defense	services	rests	with	
	

13	

		
the	 state,	 there	 should	 be	 state	 funding	 and	 a	 statewide	 structure	
responsible	for	ensuring	uniform	quality	statewide.31	

	
The	 statute	 that	 provides	 for	 indigent	 inmate	 defense,	 Art.	 26.051,	 Code	 of	 Criminal	
Procedure,	 does	 not	 contemplate	 the	 need	 for	 private	 appointed	 counsel	 due	 to	 high	
caseloads	 per	 se.	 The	 only	 reference	 to	 the	 appointment	 of	 counsel	 “other	 than	 an	
attorney	 provided	 by	 the	 board”	 (Texas	 Board	 of	 Criminal	 Justice)	 is	 in	 those	 cases	
where	a	conflict	of	interest	exists,	including	“any	conflict	of	interest	…	under	the	Texas	
Disciplinary	 Rules	 of	 Professional	 Conduct	 of	 the	 State	 Bar	 of	 Texas	 that	 precludes	
representation	 by	 an	 attorney	 appointed	 by	 the	 board.”32	Arguably,	 when	 an	 attorney	
has	 too	 many	 cases,	 there	 is	 a	 conflict	 of	 interest	 between	 a	 prior	 client	 and	 the	 new	
client.	Such	a	conflict	would	fall	under	Rule	1.06(b)(2):	“a	lawyer	shall	not	represent	a	
person	 if	 the	 representation	 of	 that	 person	 …	 reasonably	 appears	 to	 be	 or	 become	
adversely	limited	by	the	lawyer's	or	law	firm's	responsibilities	to	another	client	or	to	a	
third	 person	 or	 by	 the	 lawyer's	 or	 law	 firm's	 own	 interests.”	 A	 lawyer	 also	 has	 an	
interest	in	providing	“competent	and	diligent	representation,”	as	required	by	Rule	1.01.	
Nonetheless,	 it	 is	 not	 completely	 clear	 if	 the	 caseload	 required	 for	 inmate	
representation	is	“sufficiently	high”	enough	that	active	participation	of	the	private	bar	is	
warranted,	assuming	the	SCFO	is	adequately	staffed	and	resourced.		
	
The	 current	 statutory	 scheme	 addresses	 the	 concern	 about	 ad	 hoc	 appointments	 and	
effectively	creates	a	plan	for	the	appointment	of	counsel	for	indigent	inmates.	The	state	
does	 provide	 funding	 for	 SCFO	 as	 well.	 According	 to	 the	 response	 to	 the	 information	
request	of	SCFO,	the	following	was	the	department’s	budget	for	the	last	five	years:	
	
SCFO	Annual	Budget33	
FY	2011
$3,454,067

FY	2012
$3,356,465

FY	2013
$3,342,451

FY	2014
$3,332,792

FY	2015
$3,348,443

FIGURE	8	

	
According	 to	 the	 latest	 state	 budget,	 $30,000	 per	 year	 was	 appropriated	 for	 private	
counsel	to	represent	indigent	inmates	in	conflict	cases,	which	must	be	paid	by	the	state	
per	 Art.	 26.051(i),	 Code	 of	 Criminal	 Procedure. 34 	Whether	 SCFO’s	 and	 the	 conflict	
counsel	 budget	 are	 adequate	 for	 effectively	 representing	 indigent	 Texas	 inmates	 is	 a	
question	that	will	be	addressed	later	in	this	report.		
	
We	did	ask	one	question	in	the	survey	that	addressed	the	issue	of	whether	SCFO	has	the	
appropriate	 policy	 and	 ability	 to	 request	 assistance	 from	 the	 private	 bar	 and	 courts	
when	SCFO	is	“overloaded	with	too	many	cases.”	Respondents	answered	as	follows:	
																																																								
31	ABA,	Ten	Principles,	supra	note	14,	at	2.	
32	TEX.	CODE	CRIM.	PROC.	ANN.	art.	26.051(g)(3)	(West	2015).	

33	Information	Request	on	State	Counsel	for	Offenders	(SCFO),	provided	to	the	Office	of	Sen.	Rodney	

Ellis	by	email	(March	7,	2016),	at	1	[hereinafter	Information	Request	on	SCFO].	
34	Gen.	Appropriations	Act,	supra	note	24,	at	IV-35.	

	

14	

See my comments in 1(b) and 2(b). Attorneys at SCFO have also told me that they have been precluded from
raising certain issues in the representation of their clients. Rudolph Brothers, the current Director of SCFO, recently
testified in a civil commitment case that private attorneys could do more to represent civil commitment clients than
could the SCFO attorneys who are appointed to represent		those clients.
Lawyers get overruled by administration.

	
4(a). I believe that SCFO has the appropriate policy and ability to request
assistance from the private bar and courts when SCFO is overloaded with too
many cases.
(31 responses)

Strongly Agree
Agree
45.2%

Neutral

19.4%

Disagree
Strongly Disagree
Don’t Know

9.7%

9.7%

16.1%

4(b). Comments regarding SCFO’sFIGURE	9	
ability to control its caseload: (15 responses)
	
As	 one	 can	 see	 from	 the	 graph,	 nearly	 56	 percent	 of	 respondents	 either	 strongly	
I have never seen nor heard of any SCFO management requesting outside assistance. Local judges are extremely
disagreed	(45.2%)	or	disagreed	(9.7%)	with	the	statement	that	SCFO	has	an	appropriate	
resistant to allow SCFO to withdraw on cases, even when a clear conflict exists, due to not wanting the county to
policy	and	ability	to	request	assistance	from	the	private	bar	and	courts	if	they	have	too	
pay for the representation (SCFO does not come out of county budgets).
many	 cases.	 Nobody	 strongly	 agreed	 and	 approximately	 10	 percent	 agreed	 with	 the	
At the behest of my supervisor, I filed motions to withdraw on 19 clients because we were understaffed and unable
statement.	
	
https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses
Page 11 of 28
Representative	comments	from	respondents	included:		
	
• At	the	behest	of	my	supervisor,	I	filed	motions	to	withdraw	on	19	clients	because	
we	 were	 understaffed	 and	 unable	 to	 handle	 the	 caseload.	 We	 withdrew	 our	
motions	 when	 the	 judges	 contacted	 the	 Administration,	 and	 they	 reluctantly	
agreed	 to	 let	 us	 borrow	 some	 people	 from	 other	 sections	 and	 hire	 two	 more	
lawyers	for	ours.	Ultimately,	it	was	a	political	grenade	that	reached	its	target	and	
solved	the	problem.	
	
• Attorneys	 have	 been	 specifically	 told	 they	 may	 not	 discuss	 cases	 with	 those	
whom	 the	 SCFO	 Director	 feels	 have	 been	 disloyal	 to	 him,	 or	 not	 in	 agreement	
with	his	policies.	SCFO	attorneys	have	been	told	that	they	may	not	discuss	cases	
or	 office	 policies	 with	 outsiders.	 There	 is	 no	 office-wide	 policy	 that	 requires	
monitoring	 of	 caseloads,	 nor	 any	 attempt	 to	 farm	 out	 cases	 due	 to	 a	 number	
that	 is	 too	 high.	 There	 is	 an	 incredible	 turnover	 of	 staff	 at	 SCFO	 due	 to	 poor	
working	conditions,	poor	management	and	low	pay.	Whenever	a	staff	member	
leaves,	the	SCFO	Director	prefers	to	allow	the	position	to	lapse	for	a	time	to	save	
money.	
	

	

15	

		
•

There	was	no	policy	for	requesting	assistance	from	private	attorneys	while	I	was	
at	SCFO.	In	fact,	when	another	attorney	and	I	reached	out	to	a	private	attorney	
simply	to	compare	strategies,	we	were	strongly	discouraged	from	doing	it	again.	

•

When	I	was	employed	in	the	trial	section,	I	regularly	had	a	higher	caseload	than	
the	ABA	standards	recommend.	There	was	never	a	time	that	the	office	refused	
cases	because	caseloads	were	too	high.	

•

There	 is	 no	 such	 policy,	 no	 ability,	 and	 the	 last	 time	 SCFO	 tried	 to	 move	 cases	
over	to	the	private	bar	due	to	being	overloaded,	it	was	stopped	by	the	Board.	

•

Attorneys	 employed	 by	 SCFO	 have	 been	 told	 not	 to	 discuss	 SCFO	 matters	 with	
attorneys	 outside	 the	 agency.	 It	 is	 impossible	 to	 have	 frank	 and	 open	
conversations	 with	 SCFO	 about	 matters	 pertaining	 to	 clients	 or	 work	
collaboratively	on	legal	strategies	in	civil	commitment.	

	

	
	

	
There	were	two	respondents	who	did	not	experience	these	problems:	
	
• This	was	not	a	problem	during	my	tenure	with	SCFO.	
	
• I	never	had	any	issues	regarding	this	topic	within	SCFO,	but	the	only	time	I	had	
issues	were	because	of	the	sitting	Judge	or	the	Judge's	Coordinator.	
	
Principle	3:	Clients	are	screened	for	eligibility,	and	defense	counsel	is	assigned	and	
notified	of	appointment,	as	soon	as	feasible	after	clients’	arrest,	detention,	or	request	
for	counsel.	
	
The	 “Commentary”	 to	 Principle	 3	 states:	 “Counsel	 should	 be	 furnished	 upon	 arrest,	
detention,	or	request,	and	usually	within	24	hours	thereafter.”35		
	
We	 asked	 the	 following	 question	 in	 the	 survey	 to	 determine	 if	 SCFO	 was	 adequately	
addressing	this	principle:		
	

																																																								

35	ABA,	Ten	Principles,	supra	note	14,	at	2.	

	

16	

i.e., criminal defense versus civil commitment, they are placed wherever the Director wants them. It seems the goal
is to make each attorney a "jack of all trades and master of none." this is not how a professional defense service
should run.
The regional distribution means that redistribution of 		
cases is often not done because it is considered impractical.

6(a). I believe that SCFO’s clients or potential clients are appropriately
screened for indigency, and SCFO attorneys are assigned and notified as
soon as possible after arrest, detention, or request for counsel.
(31 responses)

Strongly Agree
25.8%

Agree
Neutral
Disagree

12.9%

Strongly Disagree
Don’t Know

29%
12.9%
12.9%

FIGURE	10	
	 6(b). Comments regarding the appointment of SCFO to represent defendants:
Once	again,	over	half	of	the	respondents	disagreed	with	the	statement,	with	nearly	55	
https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses
Page 14 of 28
percent	either	strongly	disagreeing	(25.8%)	or	disagreeing	(29%)	that	SCFO’s	clients	or	
potential	clients	are	appropriately	screened	for	indigency,	and	that	SCFO	attorneys	were	
assigned	and	notified	as	soon	as	possible	after	arrest,	detention,	or	request	for	counsel.	
Less	than	one-in-five	(19.3%)	of	respondents	agreed	or	strongly	agreed.	
	
Many	 respondents	 said	 that	 they	 did	 not	 have	 a	 problem	 with	 the	 manner	 in	 which	
SCFO	clients	were	screened	for	indigency,	but	rather	were	concerned	about	the	delay	in	
appointment.	 Some	 of	 the	 representative	 comments	 expressed	 by	 respondents	 in	 this	
regard	included:	
	
• This	is	a	compound	question,	so	as	to	the	first	part	-	yes,	I	believe	indigency	is	
appropriately	 assessed.	 As	 for	 the	 second	 part,	 no,	 SCFO	 attorneys	 are	 not	
appointed	in	a	timely	manner.	SCFO	attorneys	are	not	usually	appointed	by	the	
Board	 until	 after	 indictment.	 In	 my	 time	 at	 SCFO,	 I	 had	 many	 cases	 where	
indictment	took	YEARS.	I	also	had	cases	where	we	weren't	appointed	until	YEARS	
after	indictment	when	the	cases	first	appeared	on	a	district	court	docket.	
	
• Appointment	is	made	when	the	case	is	indicted,	the	cases	are	often	months	and	
sometimes	years	old	before	SCFO	is	appointed.	
	
• In	my	experience,	and	I	believe	this	procedure	continues,	SCFO	attorneys	are	not	
provided	 until	 post	 indictment	 in	 criminal	 cases.	 In	 civil	 commitment	 cases	 the	
attorney	is	not	appointed	until	after	the	petition	for	civil	commitment	has	been	
filed.	I	have	been	involved	in	these	cases	as	a	private	attorney	and	have	found	
that	oftentimes	much	can	be	done	on	the	client's	behalf	between	the	time	they	
	

17	

		
are	 targeted	 for	 prosecution/civil	 commitment	 and	 the	 time	 where	 an	
indictment	 or	 petition	 for	 civil	 commitment	 is	 filed.	 I'm	 not	 sure	 what	 can	 be	
done	in	this	regard,	but	it	merits	looking	into.	

	
•

Indigence	 is	 not	 an	 issue,	 but	 timeliness	 of	 access	 to	 lawyers	 is	 affected	 by	
geographic	barriers.	

	
Even	 though	 most	 negative	 responses	 to	 this	 question	 focused	 on	 the	 timeliness	 of	
appointment,	some	respondents	did	express	concerns	about	indigency	determinations:	
	
• During	my	tenure	at	SCFO,	I	witnessed	SCFO	violate	its	own	internal	indigency	
screening	standards	to	refuse	representation	to	a	client.	This	situation	is	made	
more	egregious	by	the	fact	these	decisions	are	functionally	made	by	a	nonattorney,	and	are	followed	even	when	the	section	chiefs	voice	disagreement.	
	
• I	don't	think	that	courts	are	looking	into	inmate	trust	accounts.	I	think	they	just	
send	all	inmate	cases	to	us.	That	being	said,	the	person	screening	these	accounts	
for	us	to	double	check	the	courts'	work	is	not	a	lawyer.	She	is	a	TDCJ	bureaucrat.	
That's	where	I	have	a	problem.	
	
Principle	4:	Defense	counsel	is	provided	sufficient	time	and	a	confidential	space	within	
which	to	meet	with	the	client.		
	
The	“Commentary”	to	Principle	4	states:		
“Counsel	 should	 interview	 the	 client	 as	 soon	 as	 practicable	 before	 the	
preliminary	 examination	 or	 the	 trial	 date.	 Counsel	 should	 have	
confidential	access	to	the	client	for	the	full	exchange	of	legal,	procedural,	
and	 factual	 information	 between	 counsel	 and	 client.	 To	 ensure	
confidential	 communications,	 private	 meeting	 space	 should	 be	 available	
in	 jails,	 prisons,	 courthouses,	 and	 other	 places	 where	 defendants	 must	
confer	with	counsel.”36	

	
The	following	question	was	asked	to	determine	if	SCFO	attorneys	were	provided	
sufficient	time	and	confidential	space	to	meet	clients:	

																																																								

36	ABA,	Ten	Principles,	supra	note	14,	at	2.	

	

18	

Survey on Operations of State Counsel for Offenders - Google Forms

4/17/16, 11:56 AM

		

7(a). I believe that SCFO lawyers are provided with sufficient time and a
confidential space to meet with their clients.
(31 responses)

Strongly Agree
Agree

29%

Neutral
Disagree

25.8%

Strongly Disagree
9.7%

16.1%

Don’t Know

16.1%

FIGURE	11	

	 7(b). Any comments about the confidentiality of lawyer-client
communications
Here	there	was	a	slight	majority	(54.8%)	of	respondents	who	believed	that	SCFO	lawyers	
(16 responses)

were	 not	 provided	 with	 sufficient	 time	 and	 confidential	 space	 to	 meet	 with	 clients.	
Twenty-nine	percent	of	respondents	strongly	disagreed	and	25.8	percent	disagreed	with	
the	Most
statement	
that	 SCFO	
lawyers	
were	forprovided	
with	
sufficient	
time	
and	which
confidential	
prison visitation
rooms are
not adequate
a confidential
conversation.
Only
the units
provided private
office
space
allowed
for
truly
confidential
meeting
space.
space	to	meet	with	their	clients.	
	 I "agree," but some of this is up to the individual lawyer to insist on privacy when undertaking consultations in
Comments	of	interest	included:	
prisons.
	
See generally comment 3(b).
• Most	 prison	 visitation	 rooms	 are	 not	 adequate	 for	 a	 confidential	 conversation.	
Only	the	units	which	provided	private	office	space	allowed	for	truly	confidential	
The few
times I met with clients, the units were good about allowing me time and confidentiality
meeting	space.	
Unfortunately, this answer depends on which TDCJ unit you are visiting. Some are really good about attorney-client
	 visits (The Walls Unit) and some are not so good (Ferguson Unit). If I did not feel I was afforded sufficient privacy, I
• Unfortunately,	
answer	todepends	
on	
which	
TDCJ	
you	
Some	
could
(and would) explainthis	
the situation
the executive
director
who
wouldunit	
call the
unitare	
andvisiting.	
the address
the
situation.
However, this was always a temporary fix as the unit would revert back to its behavior in due time.
are	really	good	about	attorney-client	visits	(The	Walls	Unit)	and	some	are	not	so	
good	 (Ferguson	
If	inI	 did	
not	space
feel	 the
I	 was	
afforded	
privacy,	
Attorney/Client
interviews Unit).	
take place
whatever
particular
prison sufficient	
unit designates.
UsuallyI	a could	
TDCJ
(and	 would)	
the	
situation	
to	 the	
executive	
director	
who	
call	
corrections
officer sitsexplain	
close by to
observe.
The attorney
has
to rely on the
word of the
C.O. would	
that he/she
is the	
not
listening
to the conversation.
unit	and	the	address	the	situation.	However,	this	was	always	a	temporary	fix	as	
the	unit	would	revert	back	to	its	behavior	in	due	time.	
This all
depends on the prison unit. Some of the prisons have private booths where you can meet with clients, some
	 prisons dump lawyers in the unenclosed visitation room, and some prisons allow client visits in between the control
picket
and the
office!
• This	
all	warden's
depends	
on	 the	 prison	 unit.	 Some	 of	 the	 prisons	 have	 private	 booths	
where	you	can	meet	with	clients,	some	prisons	dump	lawyers	in	the	unenclosed	
The TDCJ
guards routinely stay inside the room with the client and his attorneys during civil commitment trials,
including
during discussions
relating
to jury
selectionallow	
where all
can bevisits	
heard. Despite
having brought
this to the
visitation	
room,	 and	
some	
prisons	
client	
in	 between	
the	 control	
court's
attention and the attention of the SCFO Director, the practice continues. Many units are not set up for private
picket	and	the	warden's	office!	
discussions as well. Attorneys and clients can be side by side in an interview room where discussions can be
	 overheard by TDCJ security staff. Also, the longstanding SCFO practice of responding to inmate correspondence
• The	TDCJ	guards	routinely	stay	inside	the	room	with	the	client	and	his	attorneys	
using
postcards where comments were written for all to view and the cards are not signed by any attorney for
accountability
to the
advice flies in the
face of including	
providing quality
confidential
client advice.
during	 as
civil	
commitment	
trials,	
during	
discussions	
relating	 to	 jury	
I have never had any issues at any units regarding visitation and I was usually able to meet with my clients without
glass when I needed to unless they were severe security.

	

19	 the prosecution can request that defendants are moved by
Time is an issue because of the driving involved. Often,
TDCJ with more success than SCFO.
We are only expected to meet with the client at the initial hearing, the first interview, if we can to prepare the client

		
selection	 where	 all	 can	 be	 heard.	 Despite	 having	 brought	 this	 to	 the	 court's	
attention	and	the	attention	of	the	SCFO	Director,	the	practice	continues.	Many	
units	are	not	set	up	for	private	discussions	as	well.	Attorneys	and	clients	can	be	
side	by	side	in	an	interview	room	where	discussions	can	be	overheard	by	TDCJ	
security	staff.	

	
•

While	 there	 is	 generally	 sufficient	 time	 and	 space	 to	 confidentially	 meet	 with	
clients,	there	have	been	problems.	Most	recently	the	interim	director	refused	to	
seek	remedy	when	the	Hughes	Unit	refused	to	permit	confidential	phone	calls	to	
clients	 being	 housed	 in	 the	 segregation	 area.	 The	 interim	 director's	 proposed	
internal	remedy	(when	the	warden	refused	to	budge)	was	to	have	the	attorney	
travel	to	the	unit	to	speak	with	the	client	in	person.	That	requires	a	6	1/2	hour	
round-trip	drive	plus	the	time	needed	to	actually	get	into	the	prison	and	wait	for	
the	client	to	be	brought	out,	etc.	

•

I	was	often	denied	contact	visits	with	my	clients	as	I	prepared	for	trial.	Having	to	
talk	through	phones	that	do	not	always	work	was	problematic,	and	as	a	private	
attorney	 I	 know	 that	 the	 attorney	 visitation	 phones	 do	 not	 always	 work.	 More	
problematic	 is	 the	 lack	 of	 training	 prison	 officials	 have	 in	 the	 requirement	 to	
have	 an	 attorney	 slot	 through	 which	 to	 pass	 documents.	 I	 often	 had	 to	 pass	
documents	to	correctional	officers	who	would	then	have	to	walk	the	documents	
(out	 of	 sight	 of	 client	 and	 attorney)	 to	 the	 client.	 The	 same	 procedure	 existed	
when	the	documents	had	to	be	passed	from	client	to	attorney.	Sometimes	it	was	
because	the	attorney	visit	was	in	a	booth	with	no	legal	slot,	while	other	times	it	
was	 because	 the	 slot	 was	 welded	 shut.	 This	 is	 not	 an	 issue	 that	 only	 impacts	
SCFO	appointed	attorneys.	

	

	

Principle	5:	Defense	counsel’s	workload	is	controlled	to	permit	the	rendering	of	
quality	representation.	

	
The	“Commentary”	to	Principle	5	states:	
	
Counsel’s	workload,	including	appointed	and	other	work,	should	never	be	
so	 large	 as	 to	 interfere	 with	 the	 rendering	 of	 quality	 representation	 or	
lead	 to	 the	 breach	 of	 ethical	 obligations,	 and	 counsel	 is	 obligated	 to	
decline	 appointments	 above	 such	 levels.	 National	 caseload	 standards	
should	 in	 no	 event	 be	 exceeded,	 but	 the	 concept	 of	 workload	 (i.e.	
caseload	 adjusted	 by	 factors	 such	 as	 case	 complexity,	 support	 services,	
and	 an	 attorney’s	 nonrepresentational	 duties)	 is	 a	 more	 accurate	
measurement.37	
	
	
																																																								

37	ABA,	Ten	Principles,	supra	note	14,	at	2.	

	

20	

There is no such policy, no ability, and the last time SCFO tried to move cases over to the private bar due to being
overloaded, it was stopped by the Board.
I neglected to mention in my previously submitted survey, that attorneys employed by SCFO have been told not to discuss
SCFO matters with attorneys outside the agency. It is impossible
		 to have frank and open conversations with SCFO about
matters pertaining to clients or work collaboratively on legal strategies in civil commitment.
Once SC

We	asked	two	different	questions	that	addressed	caseload	limits	and	controls	at	SCFO.	
That was a serious problem when I was at SCFO in 1995-2000, but I am unaware of whether this problem persists.
The	first	question	addressed	whether	caseload	distributions	were	equitable	in	the	office	
and	if	cases	would	be	redistributed	or	halted	if	a	lawyer’s	caseload	was	too	high.		
It cannot adequately control its caseload. Refusal to accept too many cases is not tolerated.
	
Technically, they can, but they often do not.
The	survey	results	for	that	question	were	as	follows:	
	
5(a). I believe that the distribution of the caseload within SCFO is equitable, and if
one lawyer within the office is overloaded, SCFO management will distribute
some of the lawyer’s cases to other lawyers or will otherwise stop assigning
cases to a lawyer until the lawyer’s workload is manageable.
(31 responses)

Strongly Agree
Agree

32.3%

Neutral
Disagree

12.9%

Strongly Disagree
Don’t Know

16.1%

16.1%

16.1%

FIGURE	12	
5(b).
Comments
regarding
the
distribution
of the caseload within SCFO:
	
(17 responses)
Just	 under	 50	 percent	 of	 respondents	 strongly	 disagreed	 (32.3%)	 or	 disagreed	 (16.1%)	
with	 the	 statement	 that	 caseload	 distributions	 were	 equitable	 at	 SCFO	 and	 that	
Our Section divvies
up cases
by territory, so each
caseload is dictated
by to	
SPU's
(also
worthy
management	
would	
redistribute	
or	 lawyer's
stop	 assigning	
cases	
a	indictment
lawyer	practices
until	 a	
lawyer’s	
of a second look).
workload	 was	 manageable.	 Just	 over	 22	 percent	 of	 respondents	 agreed	 (16.1%)	 or	
I've been gone
too long(6.4%).	
to commentThere	
about thiswere	 a	 number	 of	 respondents	 who	 said	 that	
strongly	
agreed	
management	would	divide	up	cases	if	certain	attorneys	became	overloaded.	However,	
It is not uncommon anymore for lawyers in other sections to aid sections that are short-staffed. For example, I, along with
another
SCFO also	
attorney
from a differentthat	
section,
was assigned
a partialwere	
criminalused	
defenseas	
case
in order
relieve the
there	
were	
complaints	
caseload	
levels	
a	load
form	
of	toretribution	
burden of the criminal defense section after two attorneys left SCFO within a span of a couple of months. Because of this
against	attorneys	that	management	did	not	like	or	that	redistribution	of	cases	resulted	
assignment, my appellate chief gave me less cases to handle in order to keep my caseload manageable.
in	less	effective	representation.		
	
Respondents	 noted	 the	 following	 regarding	 equitable	 caseload	 distributions	 and	
redistributions	if	cases	became	excessive:	
	
• Our	Section	divvies	up	cases	by	territory,	so	each	lawyer's	caseload	is	dictated	by	
SPU's	indictment	practices	(also	worthy	of	a	second	look).	
	
• It	 is	 not	 uncommon	 anymore	 for	 lawyers	 in	 other	 sections	 to	 aid	 sections	 that	
are	 short-staffed.	 For	 example,	 I,	 along	 with	 another	 SCFO	 attorney	 from	 a	
different	 section,	 was	 assigned	 a	 partial	 criminal	 defense	 case	 load	 in	 order	 to	
relieve	the	burden	of	the	criminal	defense	section	after	two	attorneys	left	SCFO	

	

21	

		
within	a	span	of	a	couple	of	months.	Because	of	this	assignment,	my	appellate	
chief	gave	me	fewer	cases	to	handle	in	order	to	keep	my	caseload	manageable.	

	
•

I	 feel	 that	 lawyers	 that	 are	 unpopular	 with	 the	 SCFO	 director	 or	 section	 chief	
were	 overloaded.	 For	 example	 the	 Anderson	 County	 attorney	 was	 not	 popular	
with	 the	 trial	 chief	 or	 SCFO	 director.	 She	 routinely	 had	 eighty	 or	 more	 cases,	
while	certain	protégés	of	the	trial	chief	had	less	than	25	cases.	

•

While	the	civil	commitment	section	was	very	overloaded	with	trials,	the	general	
legal	section	was	just	doing	a	few	immigration	matters	and	sending	out	lots	of	"I	
can't	help	you"	postcards	to	inmates	who	wrote	with	legal	questions	for	help.	At	
times,	 a	 few	 trial	 cases	 were	 given	 in	 a	 pinch	 to	 members	 of	 general	 legal	 to	
work	 on,	 but	 due	 to	 their	 lack	 of	 training	 and	 experience	 in	 this	 area,	 they	
bobbled	the	cases,	which	eventually	came	back	to	the	trial	section.	…	[A]ssigning	
biennial	 civil	 commitment	 matters	 to	 general	 legal	 gave	 them	 more	 work,	 but	
they	 were	 hardly	 trained	 and	 did	 not	 have	 any	 interest	 in	 the	 process,	 knew	
nothing	about	the	law,	and	hadn't	conducted	civil	commitment	trials.	There	was	
no	coordination	between	the	sections.	

•

The	times	that	I	had	issues	or	saw	that	other	lawyers	had	issues,	management	
would	divide	the	cases	appropriately	while	taking	pending	case	loads	into	
consideration.	

•

One	reason	for	the	high	turnover	in	the	department	is	because	of	the	disparity	in	
treatment	and	overloading	certain	attorneys.	The	stronger	the	representation	or	
the	more	zealously	one	represents	the	client,	the	heavier	the	distribution	of	the	
caseload.	

•

It	 really	 depends	 on	 how	 loudly	 the	 attorney	 complains.	 There	 is	 not	 an	
independent	 policy	 in	 place	 that	 would	 have	 attorney	 IV's	 or	 V's	 review	 case	
distribution.	

•

While	I	agree	with	the	question	as	phrased,	there	has	been	little	to	no	attempt	
by	SCFO	to	determine	how	much	time	any	particular	case	will	take.	Due	to	the	
extensive	travel	needed	by	the	Criminal	and	Civil	Defense	Sections	to	reach	both	
courts	 and	 clients	 scattered	 across	 the	 state,	 general	 public-defender-caseload	
standards	would	not	be	applicable.	SCFO	is	aware	of	this,	but	makes	no	effort	to	
determine	what	a	appropriate	caseload	would	be	based	on	the	time	needed	for	
SCFO's	Criminal	and	Civil	cases.	

•

Depends	on	the	management.	Current	section	chiefs	actually	do	a	decent	job	of	
this,	but	if	they	failed	to	do	so,	there	is	nothing	that	a	lawyer	could	do.	

	

	

	

	

	

	
	

	

22	

Prison Unit to have the inmate available at a certain day and time. So, if I am off work sick with a bulging disc, pinch
nerve, and ligament tear in my lower back and couldn't walk, how could I be terminated for "failing to keep the client
informed?" The fact of the matter is that I had complained to HR about Erin Faseler an the unequitable distribution
of the cases and workload. When I returned from FMLA leave, I was told about only two (2) write-ups and only two
write-ups were investigated; however, after HR became involve
		 a third write-up was created from the second, which
permitted SCFO to recommend my termination.
While there is generally sufficient time & space to confidentially meet with clients, there have been problems. Most
• The	inequity	is	primarily	due	to	assignment	of	cases	to	the	wrong	attorney.	
recently
the interim director refused to seek remedy when the Hughes Unit refused to permit confidential client
phoneUnlike	other	professional	defense	services,	SCFO	does	not	place	attorneys	with	
calls to clients being housed in the segregation area. The interim director's proposed internal remedy (when
the warden refused to budge) was to have the attorney travel to the unit to speak with the client in person. That
their	strengths.	Attorneys	with	little	or	no	trial	experience	are	often	assigned	to	
requires a 6 1/2 hour roundtrip drive plus the time needed to actually get into the prison and wait for the client to be
brought
out, etc.
the	trial	section	and	required	to	defend	clients	facing	life	sentences.	Likewise,	

attorneys	with	little	or	no	civil	commitment	experience	are	assigned	to	the	civil	

Due to caseload, it's difficult to find sufficient time. I remain unconvinced that the spaces allowed for us to meet
commitment	section	where	individuals	face	lifelong	civil	commitment.	It	doesn't	
with our
clients are unmonitored, and I have reservations about whether they listen in on our telephone
conversations.
matter	whether	an	attorney	feels	they	are	more	qualified	to	handle	particular	

types	of	cases,	i.e.,	criminal	defense	versus	civil	commitment,	they	are	placed	
Sometimes
I had to be assertive with prison staff to get confidential space to meet with my clients.

wherever	the	Director	wants	them.	It	seems	the	goal	is	to	make	each	attorney	a	

	

I was often denied contact visits with my clients as I prepared for trial. Having to talk through phones that do not
"jack	of	all	trades	and	master	of	none."	This	is	not	how	a	professional	defense	
always
work was problematic, and as a private attorney I know that the attorney visitation phones do not always
work.service	should	run.	
More problematic is the lack of training prison officials have in the requirement to have an attorney slot
through which to pass documents. I often had to pass documents to correctional officers who would then have to
walk the documents (out of sight of client and attorney) to the client. The same procedure existed when the
documents
had to be passed from client to attorney. Sometimes it was because the attorney visit was in a booth
• The	regional	distribution	means	that	redistribution	of	cases	is	often	not	done	
with no legal slot, while other times it was because the slot was welded shut. This is not an issue that only impacts
because	it	is	considered	impractical.	
SCFO appointed attorneys.

	
Lawyers often meet with clients within earshot of correctional workers.
The	second	question	was	similar	but	resulted	in	somewhat	more	negative	results:		
	

8(a). I believe that SCFO attorney workloads or caseloads are controlled to
ensure that attorneys have adequate time to provide quality representation to
each client.
(30 responses)

Strongly Agree
36.7%

Agree
Neutral
Disagree
Strongly Disagree

16.7%

13.3%

Don’t Know

20%

FIGURE	13	
	
8(b). Any comments about SCFO’s workload
or caseload standards:
(14
responses)
Slightly	more	than	a	majority	of	respondents	strongly	disagreed	(36.7%)	or	disagreed	
(16.7%)	with	the	statement	that	SCFO	attorney	workloads	or	caseloads	are	controlled	to	
ensure	attorneys	have	adequate	time	to	provide	quality	representation	to	each	client.	
I "agree," but my experience was over five years ago.
Just	over	a	quarter	(26.4%)	either	strongly	agreed	(6.4%)	or	agreed	(20%)	with	the	
Our new supervisor recently reworked our territories to insure that we have decent caseloads. Mine has been as low
statement.	
as 25 and as high as 86 in almost 3 years.
	
It depends on the section in which you are assigned. If you are in the criminal defense section then you're caseload
Respondents	noted	the	following:	
averages is about 50 cases at any given time and this includes travel all over the state. The 50 case average usually
	 include cases from a number of different counties. So for the criminal, I do not believe the caseload is adequately
controlled as that section needs more lawyers. In the appellate section I would strongly agree that it is as the cases
are assigned based on the number of active case you have and all attempts to keep the cases even among the
attorneys is made. The same could be said for civil and legal services. So overall I agree as to the whole of SCFO,
but not so much as to the criminal section.

https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses

	

23	

Page 17 of 28

		
•

Our	 new	 supervisor	 recently	 reworked	 our	 territories	 to	 insure	 that	 we	 have	
decent	 caseloads.	 Mine	 has	 been	 as	 low	 as	 25	 and	 as	 high	 as	 86	 in	 almost	 3	
years.	

•

It	 depends	 on	 the	 section	 in	 which	 you	 are	 assigned.	 If	 you	 are	 in	 the	 criminal	
defense	section	then	your	caseload	average	is	about	50	cases	at	any	given	time	
and	this	includes	travel	all	over	the	state.	The	50-case	average	usually	includes	
cases	from	a	number	of	different	counties.	So	for	the	criminal,	I	do	not	believe	
the	caseload	is	adequately	controlled	as	that	section	needs	more	lawyers.	In	the	
appellate	section	I	would	strongly	agree	that	it	is	as	the	cases	are	assigned	based	
on	the	number	of	active	case	you	have	and	all	attempts	to	keep	the	cases	even	
among	the	attorneys	is	made.	The	same	could	be	said	for	civil	and	legal	services.	
So	 overall	 I	 agree	 as	 to	 the	 whole	 of	 SCFO,	 but	 not	 so	 much	 as	 to	 the	 criminal	
section.	

•

When	 I	 resigned	 from	 SCFO	 I	 had	 eighty	 enhance-able	 felony	 cases	 in	 courts	
from	 Anderson	 County	 in	 east	 Texas	 to	 the	 tip	 of	 South	 Texas	 and	 inmates	
housed	in	every	region	of	the	State,	from	Beaumont	to	Amarillo	to	Beeville.	

•

This	was	not	a	problem	during	my	tenure.	

•

The	 cases	 come	 as	 court	 appointments,	 and	 they	 are	 distributed	 in	 the	 trial	
section	 according	 to	 the	 territories	 covered	 by	 the	 assigned	 attorneys,	 or	
distributed	to	civil	commitment	attorneys	in	an	effort	to	give	the	same	number	
of	cases	to	each	attorney.	

•

A	 recent	 Criminal	 Defense	 Section	 Chief	 (who	 was	 previously	 a	 line	 attorney)	
commented	 that	 she	 found	 it	 difficult	 to	 find	 the	 time	 to	 prepare	 investigation	
requests	in	her	cases.	Nonetheless,	she	allowed	actual	caseloads	to	increase	to	a	
level	 up	 to	 50%	 higher	 than	 they	 had	 been	 when	 she	 was	 doing	 line	 attorney	
work.	 There	 is	 no	 attempt	 to	 correlate	 the	 time	 needed	 on	 a	 case	 with	 the	
caseload	of	the	attorney.	

•

SCFO	Section	Chiefs	actually	do	a	decent	job	of	this	at	this	time.	But	that	hasn't	
always	been	the	case	and	there	are	no	policies	to	prevent	this	if	it	happens	in	the	
future.	

•

Lawyers	 are	 given	 more	 cases	 than	 studies	 by	 the	 Texas	 Indigent	 Defense	
Commission	have	found	are	the	maximum	to	provide	competent	representation.	

	

	

	
	

	

	

	
	
	
	
	

	

24	

was with First Chair cases.
See 5(b). Even a recent Criminal Defense Section Chief (who was previously a line attorney) commented that she
found it difficult to find the time to prepare investigation requests in her cases. Nonetheless, she allowed actual
caseloads to increase to a level up to 50% higher than
		 they had been when she was doing line attorney work. There
is no attempt to correlate the time needed on a case with the caseload of the attorney.
SCFO Section Chiefs actually do a decent job of this at this time. But that hasn't always been the case and there are
Principle	6:	Defense	counsel’s	ability,	training,	and	experience	match	the	complexity	
no policies to prevent this if it happens in the future.
of	the	case.	

	 I battled heavy caseloads in 1995-2000. There are no standards in place, to my knowledge. The larger problem is
that, attorneys are assigned despite inexperience. An experienced attorney can handle a much larger caseload than
The	“Commentary”	to	Principle	6	states:	“Counsel	should	never	be	assigned	a	case	that	
an inexperienced attorney. Due to inadequate pay and poor placement of attorneys (See 5(b)), many attorneys likely
counsel	lacks	the	experience	or	training	to	handle	competently,	and	counsel	is	obligated	
have more cases than they can properly handle.
to	refuse	appointment	if	unable	to	provide	ethical,	high	quality	representation.”38	
	 Lawyers are given more cases that studies by the Texas Indigent Defense Commission have found are the
maximum to provide competent representation.
There	was	one	survey	question	that	addressed	Principle	6:	
	

9(a). I believe that the ability, training, and experience of SCFO attorneys
match the complexity of the cases to which attorneys are assigned.
(30 responses)

Strongly Agree
36.7%

Agree
Neutral
Disagree

10%

Strongly Disagree
Don’t Know

16.7%
13.3%
20%

FIGURE	14	

	
9(b). Any comments about the level of ability, training and experience SCFO
A	 slight	 majority	 disagreed	 with	 the	 statement	 that	 SCFO	 was	 abiding	 by	 this	 ABA	
attorneys have before they are assigned cases:
principle,	and	only	16.6	percent	agreed	or	strongly	agreed.	Here,	36.7	percent	strongly	
(18 responses)
disagreed	and	16.7	percent	disagreed	with	the	statement	that	the	ability,	training,	and	
https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses
experience	 of	 SCFO	 attorneys	 match	 the	 complexity	 of	 cases	 to	 which	 they	 were	 Page 18 of 28
assigned.	
	
Some	respondents	expressed	the	opinion	that	inexperienced	attorneys	were	assigned	to	
cases	that	were	more	serious	than	they	were	qualified	to	handle.	Some	representative	
opinions	included:	
	
• I	was	hired	to	supervise	attorneys	in	the	civil	commitment	section.	Attorneys	in	
that	 section	 are	 required	 to	 represent	 clients	 in	 jury	 trials	 on	 a	 weekly	 basis.	
When	 I	 was	 hired	 I	 explained	 that	 I	 had	 only	 one	 jury	 trial	 experience	 decades	
earlier	and	that	I	was	second	chair.	I	was	told	it	didn't	matter.	
	
• Many	 attorneys	 have	 never	 had	 a	 client	 or	 a	 case,	 and	 have	 never	 worked	 in	
court.	 They	 have	 recently	 passed	 the	 bar.	 In	 civil	 commitment,	 the	 result	 of	
																																																								

38	ABA,	Ten	Principles,	supra	note	14,	at	3.	

	

25	

		
losing	a	case	is	that	the	person	goes	to	civil	commitment/prison	for	the	rest	of	
their	 life	 if	 there	 is	 a	 minor	 rule	 violation.	 The	 consequences	 are	 huge	 and	 the	
clients	are	difficult.	The	cases	are	very	complex	because	they	involve	principles	
of	criminal	law	as	well	as	civil	law	with	depositions	and	civil	discovery	and	many	
deadlines.	 Even	 though	 the	 cases	 are	 worked	 as	 first	 and	 second	 chair,	 new	
attorneys	are	given	first	chair	responsibility	within	a	few	months	of	arrival.	In	the	
trial	 section	 the	 same	 problems	 apply,	 and	 there	 is	 no	 attorney	 supervisor	
routinely	on	the	road	to	supervise	what	happens	in	court.	Most	attorneys	who	
are	at	SCFO	do	not	understand	what	objections	to	make,	and	as	a	result	do	not	
preserve	error	for	appeal.	

	
•

Experienced	attorneys	do	not	come	to	work	for	SCFO	because	the	pay	is	so	low	
and	 the	 management	 is	 so	 bad.	 Many	 of	 the	 young	 attorneys	 who	 work	 there	
are	 highly	 skilled,	 but	 they	 leave	 before	 their	 clients	 can	 benefit	 from	 their	
growing	skillset.	

•

There	is	absolutely	no	control	over	this.	A	brand	new	lawyer	assigned	in	the	trial	
section	could	be	handling	20	first-degree	cases,	15	second	degree,	and	25	third	
degree	 felony	 cases	 at	 a	 given	 time.	 Some	 of	 the	 first	 degrees	 might	 include	
murder,	sexual	assault,	etc.	

•

It	is	routine	to	hire	attorneys	with	no	trial	experience	to	handle	a	heavy	caseload	
of	felony	or	civil	commitment	cases.	From	what	the	sections	chiefs	stated,	it	was	
often	 the	 case	 that	 no	 attorneys	 with	 the	 relevant	 experience	 would	 apply	 for	
open	positions.	

•

State	Counsel's	turnover	rate	is	ridiculous	even	beyond	the	usual	stereotype	of	a	
public	 defender	 agency.	 Furthermore,	 they	 cannot	 even	 hold	 onto	 a	 couple	 of	
experienced	attorneys	to	provide	institutional	knowledge.	That	being	said,	their	
attorneys	 generally	 have	 a	 high	 level	 of	 ability.	 But	 training	 is	 subpar	 or	
nonexistent	 (and	 in	 at	 least	 one	 section,	 is	 conducted	 by	 the	 least	 proficient	
attorney	in	the	section)	and	every	attorney	who	actually	has	a	case	is	handling	a	
genuinely	 serious	 case	 such	 as	 an	 enhanced	 felony,	 a	 civil	 commitment,	 or	 an	
appeal	from	such.	

	

	

	

	
Others	were	less	concerned	about	this	issue	or	felt	like	there	was	adequate	matching	of	
cases	to	experience	level:	
	
• Attorneys	 can	 come	 to	 SCFO	 straight	 from	 law	 school	 and	 in	 a	 few	 months	 be	
handling	civil	commitment	and	felony	cases.	It	is	up	to	the	attorney	to	rise	to	the	
occasion.	
	
• We're	 exempt	 from	 the	 Fair	 Defense	 Act,	 so	 we've	 handled	 cases	 that	 we	

	

26	

		
wouldn't	be	able	to	touch	in	the	free	world.	It's	hard	for	me	to	get	mad	about	
this	because	I	think	that	we	do	a	good	and	admirable	job	on	our	serious	cases.	
Personally,	I'm	grateful	for	SCFO	giving	me	an	opportunity	to	get	the	experience	
that	I	didn't	have	when	I	arrived.	I'm	a	better	lawyer	for	having	worked	here.	

	
•

It	was	that	way	when	I	was	there	–	and	they	had	a	great	wealth	of	knowledge	
from	 the	 older	 attorneys	 who	 were	 always	 willing	 and	 able	 to	 lend	 advice	 or	
assistance	if	asked.	

•

For	 the	 most	 part	 I	 agree,	 however,	 SCFO	 does	 sometimes	 have	 a	 tendency	 to	
place	inexperienced	lawyers	in	the	civil	commitment	section	due	to	the	constant	
retention	problems	that	the	section	has	faced	in	the	past.	Currently,	the	section	
is	made	up	of	lawyers	who	have	mostly	been	together	for	a	while	now,	so	that	is	
a	 plus.	 For	 its	 criminal	 lawyers,	 SCFO	 has	 in	 recent	 history	 hired	 lawyers	 with	
criminal	experience	to	handle	the	case,	although	that	was	not	always	the	case.	In	
legal	 services,	 newer	 attorneys	 tended	 to	 be	 assigned	 to	 that	 section	 at	 the	
highest	 rate,	 but	 that	 section’s	 caseload	 is	 the	 least	 demanded.	 Appellate	 is	 a	
good	mix	of	experience.	

•

Different	 divisions	 had	 different	 people	 with	 different	 work	 experiences.	 …	 I	
always	had	someone	to	bounce	ideas	off	of	or	someone	to	provide	me	with	the	
tools	 and	 information	 to	 guide	 me	 in	 obtaining	 the	 knowledge	 that	 was	
necessary	 for	 a	 specific	 task...and	 that	 was	 if	 I	 did	 not	 have	 experience	 with	 a	
particular	topic.	I	really	liked	how	a	number	of	the	employees	have	been	working	
in	the	TDCJ	system	for	decades	because	they	were	a	wealth	of	knowledge	in	my	
learning	of	how	the	prison	system	runs.	

	

	

	
SCFO	reported	the	experience	of	its	27	attorneys	as	follows:39	
	
• Attorney	I	(0	to	1	yr.	experience):	2	(1	yr.	licensed)	
	
• Attorney	II	(1	to	2	yrs.	experience):	3	(1	yr.,	9	mos.	and	2	yrs.	licensed)	
	
• Attorney	 III	 (2+	 yrs.	 experience):	 14	 (three	 with	 2	 yrs.	 experience;	 3	 yrs.;	 four	
with	4	yrs.	experience;	5	yrs.;	7	yrs.;	9	yrs.;	10	yrs.;	22	yrs.;	and	41	yrs.)	
	
• Attorney	 IV,	 V,	 and	 VI	 (these	 are	 supervisory/managerial	 positions	 with	 each	
attorney	holding	these	positions	having	more	than	2	yrs.	experience):	nine	(5,	7,	
8,	16,	20,	28,	29,	31,	and	38	yrs.	licensed	respectively)	
	
	
	
																																																								
39	Information	Request	on	SCFO,	supra	note	18,	at	2.	

	

27	

		
Principle	7:	The	same	attorney	continuously	represents	the	client	until	completion	of	
the	case.		

	
The	“Commentary”	to	Principle	7	states:	“Often	referred	to	as	‘vertical	representation,’	
the	 same	 attorney	 should	 continuously	 represent	 the	 client	 from	 initial	 assignment	
through	 the	 trial	 and	 sentencing.	 The	 attorney	 assigned	 for	 the	 direct	 appeal	 should	
represent	the	client	throughout	the	direct	appeal.”40	
	
We	did	not	ask	a	question	addressing	this	principle.	
	
Principle	8:	There	is	parity	between	defense	counsel	and	the	prosecution	with	respect	
to	resources	and	defense	counsel	is	included	as	an	equal	partner	in	the	justice	system.	
	
	
The	“Commentary”	to	Principle	8	states:		
	
	
There	should	be	parity	of	workload,	salaries	and	other	resources	(such	as	
benefits,	 technology,	 facilities,	 legal	 research,	 support	 staff,	 paralegals,	
investigators,	 and	 access	 to	 forensic	 services	 and	 experts)	 between	
prosecution	 and	 public	 defense.	 Assigned	 counsel	 should	 be	 paid	 a	
reasonable	 fee	 in	 addition	 to	 actual	 overhead	 and	 expenses.	 Contracts	
with	 private	 attorneys	 for	 public	 defense	 services	 should	 never	 be	 let	
primarily	 on	 the	 basis	 of	 cost;	 they	 should	 specify	 performance	
requirements	 and	 the	 anticipated	 workload,	 provide	 an	 overflow	 or	
funding	 mechanism	 for	 excess,	 fund	 expert,	 investigative,	 and	 other	
litigation	 support	 services.	 No	 part	 of	 the	 justice	 system	 should	 be	
expanded	or	the	workload	increased	without	consideration	of	the	impact	
that	expansion	will	have	on	the	balance	and	on	the	other	components	of	
the	justice	system.	Public	defense	should	participate	as	an	equal	partner	
in	 improving	 the	 justice	 system.	 This	 principle	 assumes	 that	 the	
prosecutor	 is	 adequately	 funded	 and	 supported	 in	 all	 respects,	 so	 that	
securing	parity	will	mean	that	defense	counsel	is	able	to	provide	quality	
legal	representation.41	
	
We	 asked	 three	 questions	 related	 to	 parity	 between	 the	 defense	 and	 prosecution	
functions	 and	 issues	 related	 to	 the	 commentary.	 The	 question	 that	 most	 directly	
addressed	 parity	 between	 defense	 counsel	 and	 the	 prosecution	 was	 the	 one	 question	
that	 approached	 unanimous	 agreement	 among	 respondents.	 The	 question	 and	 survey	
results	were	as	follows:		
	

																																																								

40	ABA,	Ten	Principles,	supra	note	14,	at	3.	
41	ABA,	Ten	Principles,	supra	note	14,	at	3.	

	

28	

lifelong confinement.
See my comments in 5(b).

		 training or oversight.
Inexperienced lawyers are given cases without adequate

10(a). I believe that, as a whole, State Counsel for Offenders receives equal
resources as the prosecution, SCFO attorneys are paid equally to their
prosecutor counterparts, and that SCFO and the prosecution are treated as
equal partners in the justice system.
(31 responses)

Strongly Agree
Agree
Neutral
Disagree

90.3%

Strongly Disagree
Don’t Know

FIGURE	15	
	
10(b). Any comments about SCFO’s parity
with the prosecution: (17 responses)
As	 one	 can	 see	 from	 the	 above	 graph,	 over	 90	 percent	 of	 respondents	 strongly	
disagreed	 with	 the	 statement	 that	 SCFO	 receives	 equal	 resources	 as	 the	 prosecution,	
Pay is not equal between prosecutors at the Prison Prosecution Unit and SCFO attorneys, not between SCFO
SCFO	attorneys	are	paid	equally	to	their	prosecutor	counterparts,	and	that	the	SCFO	and	
attorneys and local prosecutors. SCFO has a two-step career ladder, unless one becomes a supervisor. I know of
the	few
prosecution	
are	
treated	
as	outequal	
partners	
the	
criminal	
system.	
One	
other law offices
where
one maxes
their salary
potentialin	
in two
years.
Access tojustice	
expert services
is limited
due
to
budget.
In
my
time
at
SCFO,
access
to
ink
pens
was
often
limited,
as
was
file
folders
and
legal
pads.
respondent	strongly	agreed	(3.2%)	and	one	agreed	(3.2%)	with	the	statement.	
had to justify requests for basic supplies, and legal assistants were questioned, with suspicion, when
	 Attorneys
requesting manila envelopes.
Respondents	noted	in	their	survey	responses:	
	 SCFO NEVER had equal resources as the prosecution, particularly in civil commitment and immigration cases.
SCFO lawyers were always treated as (and viewed themselves) as unequal partners in the system.
• SCFO	 never	 had	 equal	 resources	 as	 the	 prosecution,	 particularly	 in	 civil	
Look commitment	and	immigration	cases.	SCFO	lawyers	were	always	treated	as	(and	
at the average salaries and you will have your answer. We make less than the OIG police officers that
investigate our cases. Each SPU prosecutor has his own investigator. Most SPU prosecutors have their own
viewed	themselves)	as	unequal	partners	in	the	system.	
secretaries. I have access to a team of investigators and a team of legal assistants. Resources are spread thin and,
	 often, the left hand has no idea what the right hand is doing.
• Look	at	the	average	salaries	and	you	will	have	your	answer.	We	make	less	than	
We were paid way way less than those equally positioned on the other side. But I have no idea what the pay
the	isOIG	
structure
now police	 officers	 that	 investigate	 our	 cases.	 Each	 SPU	 prosecutor	 has	 his	
own	 investigator.	 Most	 SPU	 prosecutors	 have	 their	 own	 secretaries.	 I	 have	
SCFO lawyers are paid at a much less rate than SPU and I honestly believe SPU have more resources available to
access	 to	 a	 team	 of	 investigators	 and	 a	 team	 of	 legal	 assistants.	 Resources	 are	
them.
spread	thin	and,	often,	the	left	hand	has	no	idea	what	the	right	hand	is	doing.	
SCFO
attorneys are paid at least $10,000 to $20,000 less than their prosecutorial counterpart. There are no step
	
increases and no pay increases based on years of experience. All Attorney IIIs and Attorney IVs receive the same
• regardless
SCFO	lawyers	are	paid	at	a	much	less	rate	than	SPU	and	I	honestly	believe	SPU	
pay
of experience.
Except
for one week of TDCLA trial college there is no training. I was dissuaded from seeking additional training. I
have	more	resources	available	to	them.	
admonished for attending an Indigent Defense Commission summit in 2012 after I was encouraged to attend
	 was
the same meeting by the previous SCFO director in 2011.
has	
and	 continues	
to	Trial
receive	
than	 SPU	
(for	
I•wasSCFO	
dissuaded
fromhistorically	
attending the National
Criminal Defense
College less	
when I funding	
received a scholarship
to attend.
example,	 they	 can	 only	 pay	 $150/hr	 for	 experts	 while	 SPU	 can	 pay	 $250/hr).	
https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses
Page 20 of 28
SCFO	attorneys	and	staff	are	paid	less	than	their	counterparts	at	SPU.	
	
• In	 the	 civil	 commitment	 section,	 every	 case	 had	 two	 prosecutor	 expert	
	

29	

		
witnesses,	but	only	one	(if	any)	defense	witness.	The	prosecutors	also	paid	their	
experts	much	more	than	SCFO	did.	Also,	the	prosecutors	were	better	paid	than	
SCFO	attorneys.	

	
•

The	 prosecutors	 at	 SPU	 (Special	 Prosecution	 Unit)	 make	 roughly	 50%	 more	 in	
base	salary	than	their	defense	counterparts.	Their	additional	coverage	for	travel	
costs	 is	 also	 greater.	 Finally,	 the	 prosecutors	 have	 much	 greater	 flexibility	 in	
how/where	their	work	is	completed.	(work	from	home,	law	library,	etc.)	

•

In	my	time	at	SCFO	the	State	had	more	funds	to	prosecute	cases,	and	much	more	
funding	in	civil	commitment	cases.	I	believe	that	to	still	be	the	case	based	upon	
more	 recent	 comments	 from	 SCFO	 attorneys.	 Particularly	 in	 the	 civil	
commitment	 arena	 attorneys	 have	 commented	 on	 funding	 inequalities	 that	
impact	their	ability	to	represent	clients.	Pay	parity	was	non-existent	when	I	was	
at	 SCFO.	 Prosecutors	 made	 substantially	 more	 that	 defense	 attorneys,	 as	
evidenced	 by	 the	 fact	 that	 SCFO	 turnover	 rate	 was	 dramatically	 higher	 than	 at	
the	Special	Prison	Prosecution	Unit.	

	

	

Prosecutors	are	paid	more	and	get	more	respect	from	the	courts.	
	
SCFO	reported	the	average	salaries	of	its	employees	as	follows:42	
	
Staff	and	Average	Salaries	of	SCFO	Staff	
•

Average	
Auth Filled Annual	Salary
1
1
$116,252
4
3
$76,356
4
4
$64,682
14
13
$56,564
3
1
$48,278
2
2
$46,287
27
23
6
6
$46,213
1
1
$56,211
1
1
$41,525
20
20
$39,304
3
2
$31,242
59
54

Title
SCFO		DIRECTOR	(ATTORNEY	VI)
ATTORNEY	V														
ATTORNEY	IV														
ATTORNEY	III													
ATTORNEY	II									
ATTORNEY	I									
TOTAL	ATTORNEYS
INVESTIGATORS				
MANAGER	I							
INTERPRETER	II
LEGAL	ASSISTANTS
SUPPORT	STAFF
SCFO	FTE's
*As	of	1/31/16

FIGURE	16	
	
Comparing	 budgets	 between	 SCFO	 and	 the	 SPU,	 the	 agency	 charged	 with	 cooperating	
with	 and	 supporting	 prosecuting	 attorneys	 in	 prosecuting	 offenses	 and	 delinquent	
conduct	 in	 Texas	 prisons	 and	 juvenile	 facilities,	 one	 can	 see	 that	 the	 SPU’s	 budget	 is	
																																																								

42	Information	Request	on	SCFO,	supra	note	18,	at	1.	

	

30	

		
higher	than	SCFO’s.		
	

FY	2016	Operating	Budgets	
	
43
State	Counsel	for	Offenders 	
Special	Prosecution	Unit44	
$3,431,151	
$5,347,247	
	
$4,508,810	(budget	w/o	Juvenile	Div.)	
FIGURE	17	

	
It	should	be	noted	that	the	SPU	has	a	Juvenile	Division	to	prosecute	juveniles	accused	of	
offenses	committed	in	Texas	Juvenile	Justice	Department	facilities,	whereas	SCFO	does	
not	 defend	 juveniles.	 At	 the	 same	 time,	 SCFO	 is	 charged	 with	 providing	 legal	 services	
beyond	those	cases	that	are	handled	by	SPU.		
	
An	added	difficulty	in	comparing	the	two	organization’s	budgets	in	that	SPU	is	assisting	
or	 cooperating	 with	 local	 prosecutors	 in	 prosecuting	 offenses	 committed	 in	 TDCJ	
facilities,	so	there	are	added	resources	being	provided	by	local	prosecutors	to	prosecute	
cases,	 whereas	 SCFO	 must	 defend	 these	 cases	 on	 its	 own.	 There	 are	 also	 indigent	
inmates	 who	 SCFO	 does	 not	 defend	 when	 there	 is	 a	 conflict,	 but	 the	 State	 is	 only	
spending	$30,000	per	year	on	those	cases.45	
	
One	 area	 where	 there	 is	 a	 lack	 of	 parity	 between	 the	 SCFO	 and	 SPU	 was	 previously	
discussed	 under	 Principle	 1-Independence,	 and	 that	 is	 the	 lack	 of	 parity	 regarding	
organizational	 independence.	 Whereas	 the	 SPU	 is	 governed	 by	 an	 independent	 board	
and	has	operational	independence,	SCFO	does	not.	SCFO	is	a	division	of	TDCJ	and	has	no	
independent	ability	to	request	an	increase	or	any	other	modification	to	its	budget	from	
the	legislature.		
	
Respondents	 also	 strongly	 disagreed	 with	 the	 statement	 that	 SCFO	 has	 adequate	
resources	for	experts	and	ancillary	services	to	effectively	represent	its	clients:		
	

																																																								

43	TDCJ,	Agency	Operating	Budget	2016,	supra	note	25,	at	5.	
44	Gen.	Appropriations	Act,	supra	note	24,	at	IV-36-37.	
45	Gen.	Appropriations	Act,	supra	note	24,	at	IV-35.	

	

31	

clients. Pay parity was non-existent when I was at SCFO. Prosecutors made substantially more that defense
attorneys, as evidenced by the fact that SCFO turnover rate was dramatically higher than at the Special Prison
Prosecution Unit.
Prosecutors are paid more and get more respect from the
		 courts.

11(a). I believe that SCFO has adequate resources for experts and ancillary
services to effectively represent its clients.
(31 responses)

Strongly Agree
Agree

61.3%

Neutral
Disagree
Strongly Disagree
Don’t Know
9.7%
19.4%

FIGURE	18	
	
https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses
Page 21 of 28
Over	 80	 percent	 of	 survey	 respondents	 either	 strongly	 disagreed	 (61%)	 or	 disagreed	
(19.4%)	with	the	statement	pertaining	to	adequate	resources	for	experts	and	ancillary	
services.	About	13	percent	either	strongly	agreed	(3.2%)	or	agreed	(9.7%).	
	
Respondents	noted:	
	
• SCFO	was	ALWAYS	outgunned	with	it	came	to	paying	for	experts.	Particularly	in	
civil	commitment	and	immigration	cases.	
	
• The	non-lawyer	TDCJ	bureaucrat	decides	what	experts	we	can	hire.	The	Director	
supposedly	 has	 the	 final	 say,	 but	 he	 listens	 to	 her.	 This	 is	 coming	 to	 a	 head	
because	we	have	started	requesting	experts	in	fields	aside	from	psychology.	She	
is	unfamiliar	with	our	particularized	need	for	such	irregular	experts,	so	we	have	
gotten	some	push	back.	
	
• We	were	only	allowed	one	expert	for	each	civil	commitment	case.	While	I	was	in	
the	civil	commitment	section,	SCFO	paid	our	experts	$125	to	$150	an	hour.	The	
Special	 Prosecution	 Unit	 paid	 the	 State's	 expert	 $250	 an	 hour.	 At	 least	 one	
expert	changed	from	the	defense	to	the	state	side	during	my	time.	
	
• SCFO	 uses	 old	 equipment,	 antiquated	 computer	 equipment,	 cameras,	
technology.	Very	sad.	
	
• There	 are	 serious	 problems	 with	 SCFO's	 in-house	 investigation	 capacity.	
Otherwise,	I	agree	with	the	above	statement.	
	
One	respondent	did	note:	
	

	

32	

		
•

I	was	always	able	to	obtain	the	resources	I	needed	for	trial	and	investigation.	

	
The	final	question	pertaining	to	Principle	8	and	the	principle’s	commentary	asked	
I have had civil commitment attorneys tell me that they lack the funding Special Prison Prosecution Unit has for experts,
respondents	about	the	extent	to	which	they	agreed	with	a	statement	that	SCFO	is	
and that it has hurt their ability to represent clients in those cases, although I have no personal knowledge of this. .
adequately	funded,	such	that	it	has	the	resources	to	effectively	represent	its	clients	in	
SCFO are often denied access to appropriate experts because of cost.
all	situations.		
	
12(a). I believe that SCFO is adequately funded, such that it has the resources to
effectively represent its clients in all situations.
(31 responses)

Strongly Agree
Agree

71%

Neutral
Disagree
Strongly Disagree
Don’t Know

16.1%

12(b). Any comments about SCFO’sFIGURE	19	
funding: (15 responses)
	
Once	 again,	 a	 very	 strong	 majority	 believes	 that	 SCFO	 does	 not	 have	 adequate	
SCFO has a small budget. Administrators are concerned with making it even more restricted so as to be able to report a
resources.	Over	87	percent	of	respondents	either	strongly	disagreed	(71%)	or	disagreed	
surplus to the Board.
(16.1%)	 with	 the	 statement	 that	 SCFO	 is	 adequately	 funded	 to	 provide	 effective	
The lawyers must make more money so that the administration can be choosier about who it hires, and so that good
representation	to	its	clients.	Only	two	respondents	total	either	strongly	agreed	(3.2%)	or	
people will stay. Had I been paid better, I would likely have stayed on for many more years.
agreed	(3.2%)	that	SCFO	was	adequately	funded.	
budget is controlled by an agency with goals diamtrically opposed to our own. Our advocacy dies the death of 1000
	 Our
budgetary cuts and fiscal considerations.
Respondents	provided	us	with	the	following	comments	regarding	this	issue:	
	 They have enough, but they really could use a lot more funding.
• SCFO	
has	
a	 small	
budget.	
are	
with	 making	
it	 trial
even	
There
is virtually
no funding
for experts
in the Administrators	
criminal trial section.The
onlyconcerned	
experts ever employed
in the criminal
section is for competency or sanity evaluation. There is inadequate funding for travel. I was once threatened with
more	restricted	so	as	to	be	able	to	report	a	surplus	to	the	Board.	
disciplinary action for renting a hotel room in the same city as the prosecutor when I was in trial in Karnes City, which is
	 approximately 250 miles away from my office and home.
• The	lawyers	must	make	more	money	so	that	the	administration	can	be	choosier	
I have heard many current SCFO attorneys speaking about running out of "travel funds," meaning that they are unable to
travel about	who	it	hires,	and	so	that	good	people	will	stay.	Had	I	been	paid	better,	I	
to units to meet with clients and witnesses and conduct scene visits.
would	likely	have	stayed	on	for	many	more	years.	
SCFO runs out of money before budget end, and has to request more funding from Mr. McGinty, or whoever now holds his
	 position. Until I sat down and made a spreadsheet a few years ago, there was no comprehensive way to forecast how
much
was being
spent on
commitmentby	
cases
on criminal
trials.goals	
Expert witnesses
were not pre-approved
by the
• Our	
budget	
is	civil
controlled	
an	oragency	
with	
diametrically	
opposed	 to	
our	
SCFO Director, so attorneys just decided to hire an expert, then a bill was submitted and was paid by the administrative
own.	
Our	
advocacy	
thousand	
budgetary	
fiscal	
section,
with no
way of
knowing whatdies	
it wasthe	
for or death	
whether inof	
facta	the
billed hours were
completed. cuts	
I startedand	
a process
of
sending
requests
for
experts
to
the
SCFO
Director
so
he
knew
how
many
expert
witnesses
were
being
hired,
and
for
what
considerations.	
case. SCFO does not use a written contract for their expert witnesses, so the process is still highly flawed.
	
• There	is	virtually	no	funding	for	experts	in	the	criminal	trial	section.	The	only	
experts	ever	employed	in	the	criminal	trial	section	are	for	competency	or	sanity	

	

33	

		
evaluation.	There	is	inadequate	funding	for	travel.	I	was	once	threatened	with	
disciplinary	action	for	renting	a	hotel	room	in	the	same	city	as	the	prosecutor	
when	I	was	in	trial	in	Karnes	City,	which	is	approximately	250	miles	away	from	
my	office	and	home.	

	
•

I	 had	 to	 buy	 my	 own	 material	 for	 demonstrative	 evidence	 at	 trial	 because	
management	categorically	refused	to	spend	any	money	on	those	things.	

•

SCFO	 lacks	 the	 funding	 to	 pay	 attorney	 in	 parity	 with	 their	 prosecutorial	
counterparts,	and	has	a	pay	structure	that	discourages	long-term	employment.	It	
is	often	a	fight	to	receive	basic	office	supplies;	I	was	refused	3-tab	folders	when	I	
started	my	SCFO	employment.	SCFO	computers,	internet	access,	remote	storage,	
and	 vehicles	 often	 do	 not	 work.	 So	 some	 employees	 use	 their	 personal	
computers	and	pay	for	private	internet	service.	SCFO	often	fails	to	repost	vacant	
positions	resulting	in	frequent	understaffing.	

•

Check	 the	 attorney	 turnover	 rates.	 That	 should	 speak	 to	 whether	 there	 is	
adequate	 funding,	 at	 least	 with	 respect	 to	 personnel.	 In	 my	 experience	 there	
were	 extraordinarily	 high	 turnover	 rates	 that	 resulted	 in	 "horizontal	
representation"	which	is	contrary	to	the	ABA	Standards	for	defense	services.	

	

	

	
Turnover	rates	were	reported	by	SCFO	as	follows:46	
	
SCFO	Turnover	Rate	
	Turnover	Rate

FY	2014

FY	2015

FY	2016	YTD

13.6%

11.9%

11.5%

FIGURE	20	
	
The	average	SCFO	attorney	tenure	is	approximately	six	years	according	to	SCFO.	
	
Principle	9:	Defense	counsel	is	provided	with	and	required	to	attend	continuing	legal	
education.	
	
The	 “Commentary”	 to	 Principle	 9	 states:	 “Counsel	 providing	 defense	 services	 should	
have	systematic	and	comprehensive	training	appropriate	to	their	areas	of	practice	and	
at	least	equal	to	that	received	by	prosecutors.”47	
	
The	question	pertaining	to	Principle	9	was	the	one	question	that	was	most	evenly	split	
among	respondents.		
																																																								

46	Information	Request	on	SCFO,	supra	note	18,	at	1.	
47	ABA,	Ten	Principles,	supra	note	14,	at	3.	

	

34	

Check the attorney turnover rates. That should speak to whether there is adequate funding, at least with respect to
personnel. In my experience there were extraordinarily high turnover rates that resulted in "horizontal representation"
which is contrary to the ABA Standards for defense services.

		

SCFO is generally underfunded.

13(a). I believe that SCFO attorneys are provided with and required to attend
continuing legal education.
(31 responses)

Strongly Agree
Agree

12.9%

Neutral
Disagree

12.9%

25.8%

Strongly Disagree
Don’t Know
19.4%
22.6%

FIGURE	21	

	 13(b). Any comments about continuing legal education at SCFO: (13 responses)
A	“neutral”	answer	(25.8%)	was	the	most	popular	response,	and	the	only	question	we	
asked	where	over	40	percent	of	respondents	agreed	that	SCFO	was	complying	with	the	
Again, a compound question. Yes, attorneys are required to attend CLE. They are not provided with CLE, not funds to
principle.		
attend CLE.
	
Respondents	noted:	
	
• The	 Director	 and	 his	 administrative	 assistant	 were	 highly	 selective	 in	 the	 type	
and	 amount	 of	 CLE	 that	 attorneys	 were	 allowed	 to	 attend	 without	 taking	
personal	time	to	attend	CLE.	
	
• They	let	us	get	our	15	hours.	If	we	want	more,	we	have	to	take	our	own	time	and	
they	won't	pay	us	back.	When	you're	making	TDCJ	officer	pay,	there	isn't	much	
room	 in	 a	 personal	 budget	 for	 CLE.	 I'm	 hoping	 that	 TCDLA	 starts	 putting	 more	
programs	on	video	so	I	can	do	CLE	on	my	own	time.	
	
• We	attend	CLE's	where	speakers	encourage	us	to	speak	out	against	injustice	and	
to	zealously	represent	our	clients,	but	if	we	were	to	do	those	things	encouraged	
or	suggested,	won't	be	long	before	we	are	without	a	job.	
	
• Generally,	 one	 significant	 CLE	 will	 be	 supported	 with	 agency	 time.	 Generally	
there	 is	 no	 other	 financial	 support	 for	 CLE,	 and	 even	 receiving	 work	 time	 for	
attending	a	CLE	is	on	a	case-by-case	basis.	The	agency	culture	does	not	have	a	
commitment	to	continuing	legal	education.	It	also	lack	a	commitment	to	in-office	
training	 generally.	 That	 is	 a	 glaring	 deficiency	 given	 the	 generally	 low	 level	 of	
experience	of	the	agency's	incoming	attorneys.	
	

	

35	

SCFO, and much could be gained by doing so.
I believe they have the opportunity to attend CLE, the problem is the office will not pay for it. Attorneys are limited by
what they can afford and/or get scholarships to attend.

		

I never had any issues with obtaining time to go to CLEs and other courses.
The CLEs provided by current SCFO attorneys are almost always minimally helpful and legally incorrect on
• I	believe	they	have	the	opportunity	to	attend	CLE,	the	problem	is	the	office	will	
occasion.

not	 pay	 for	 it.	 Attorneys	 are	 limited	 by	 what	 they	 can	 afford	 and/or	 get	

	
	

For the most part, I believe it's mostly for show and because it's a requirement. There is a hypocrisy that exists in
scholarships	to	attend.	
this area. We attend cle's where speakers encourage us to speak out against justice and to zealously represent our
clients, but if we were to do those things encouraged or suggested, won't be long before we are without a job.

•

They	get	CLE,	but	inexperienced	lawyers	do	not	get	sufficient	advocacy	training.	

Generally, one significant CLE will be supported with agency time. Generally there is no other financial support for
CLE, and even receiving work time for attending a CLE is on a case-by-case basis. The agency culture does not have
Principle	10:	Defense	counsel	is	supervised	and	systematically	reviewed	for	quality	
a commitment to continuing legal education. It also lack a commitment to in-office training generally. That is a
glaring deficiency
given the generally low level of experience of the agency's incoming attorneys.
and	efficiency	according	to	nationally	and	locally	adopted	standards.		

	 Provided with? No. Not really. Ken Nash holds a few CLEs and those are as good as you would expect from such an
excellent
appellate attorney.
But other than
there “The	
are no in-house
CLEs.
Attorneys
are given
the opportunity
to
The	
“Commentary”	
to	 Principle	
10	that,
states:	
defender	
office	
(both	
professional	
and	
go to outside CLEs and allowed admin time for this. As far as requirements go, if we fail to keep up with our CLEs,
support	
staff),	 assigned	 counsel,	 or	 contract	 defenders	 should	 be	 supervised	 and	
eventually our license gets suspended and then we get fired - so, yes, we are required to attend CLE.
periodically	evaluated	for	competence	and	efficiency.”48	
	 It was a problem when I was there. (See 1(b)). Not aware of current practices.
There	was	one	survey	question	pertaining	to	the	adequacy	of	supervision	and	review	of	
They get CLE, but inexperienced lawyers do not get sufficient advocacy training.
defense	counsel	working	at	SCFO.	
	

14(a). I believe that SCFO attorneys and staff receive adequate supervision
and mentorship, and they are periodically evaluated for competence and
efficiency.
(31 responses)

Strongly Agree
Agree

25.8%

Neutral
Disagree
Strongly Disagree

35.5%

Don’t Know

9.7%
16.1%

FIGURE	22	

Page 32 of 37
	
Over	60	percent	of	respondents	either	strongly	disagreed	(25.8%)	or	disagreed	(35.5%)	
with	 the	 statement	 that	 “SCFO	 attorneys	 and	 staff	 receive	 adequate	 supervision	 and	
mentorship,	 and	 they	 are	 periodically	 evaluated	 for	 competence	 and	 efficiency.”	 Just	
over	a	quarter	of	respondents	either	strongly	agreed	(9.7%)	or	agreed	(16.1%)	with	the	
statement.	
	
Some	of	the	concerns	expressed	by	respondents	included:	
	

https://docs.google.com/a/scottehlerslaw.com/forms/d/1KRabQVnqO…YgQ9qt5vB-2G_NJw12Oo/edit?usp=sharing_eid&ts=570f9370#responses

																																																								

48	ABA,	Ten	Principles,	supra	note	14,	at	3.	

	

36	

		
•

There	is	an	annual	review,	but	no	mentorship,	at	least	not	in	my	experience.	My	
direct	 supervisor	 only	 provided	 guidance	 at	 my	 insistence.	 There	 was	 no	
mentorship	 structure.	 If	 the	 new	 attorney	 did	 not	 insist	 on	 help,	 often	
repeatedly,	 none	 was	 provided.	 When	 provided,	 it	 was	 by	 ineffectual	 and	
apathetic	supervisors.	

•

There	was	absolutely	no	training	available	to	me	when	I	started	working	at	SCFO.	
I	 was	 once	 asked	 by	 the	 SCFO	 director	 to	 revise	 the	 civil	 commitment	 manual	
that	I	was	not	even	aware	existed	before	the	request.	When	I	asked	the	section	
chief	about	it,	he	vaguely	waived	toward	it.	I	thought	he	should	have	made	me	
aware	of	the	section's	procedures	when	I	was	hired	as	a	supervisor.	

•

When	I	was	hired	the	civil	commitment	chief	came	to	the	office	at	noon,	shut	his	
door,	and	was	not	seen	for	the	rest	of	the	day.	He	was	fired	and	replaced	by	a	
highly	 motivated	 and	 productive	 chief.	 She	 was	 reassigned	 to	 the	 criminal	 trial	
section	without	her	consent	and	with	no	explanation.	The	criminal	trial	chief	was	
assigned	 to	 the	 civil	 commitment	 section	 without	 his	 consent	 and	 with	 no	
explanation.	It	was	very	demoralizing	because	each	section	chief	was	devoted	to	
their	particular	section	and	was	highly	regarded	by	their	staff.	It	appeared	that	
the	SCFO	Director	was	deliberately	trying	to	make	each	section	less	effective.	

•

I	feel	that	younger	attorneys	are	more	or	less	thrown	to	the	wolves	and	are	not	
given	 sufficient	 training	 or	 mentorship	 before	 representing	 clients.	 SCFO	 was	
always	 looking	 for	 warm	 bodies	 to	 throw	 at	 civil	 commitment	 cases,	 without	
regard	 to	 whether	 the	 lawyers	 were	 particularly	 qualified	 for	 the	 task	 at	 hand.	
Young	lawyers	were	promoted	as	supervisors,	and	failed	to	adequately	prepare	
the	 next	 generation	 of	 lawyers	 to	 represent	 clients.	 In	 addition,	 SCFO	 is	 very	
insular	 and	 is	 very	 removed	 from	 any	 bar	 association	 which	 could	 offer	
mentorship	outside	the	office.	

•

Basically,	 the	 so-called	 supervision	 and	 mentorship	 is	 geared	 towards	
micromanaging	 attorneys.	 Also,	 we	 are	 not	 evaluated	 for	 competence	 and	
efficiency	the	number	of	times	required	by	the	Employee	Manual.	

•

Astonishingly	 there	 was	 no	 mentorship	 available	 in	 the	 criminal	 trial	 section.	 I	
represented	 a	 man	 that	 was	 facing	 a	 life	 sentence	 for	 Aggravated	 Assault	 of	 a	
Public	 Servant.	 The	 client	 insisted	 on	 trial.	 I	 had	 no	 criminal	 trial	 experience.	 I	
asked	for	assistance	from	the	criminal	trial	section	chief	or	a	seasoned	criminal	
trial	attorney	for	a	year	before	the	trial.	I	received	no	assistance	though	the	trial	
chief	told	me	he	thought	he	might	help	me.	He	had	previously	assisted	in	trial	for	
every	attorney	that	had	previously	worked	in	that	section.	One	week	before	trial	
he	told	me	he	would	not	assist	me	in	trial.	I	had	to	beg	to	have	a	recently	hired	

	

	

	

	

	

	

37	

		
attorney	sit	in	trial	with	me.	She	had	no	time	to	prepare	and	did	not	participate	
in	the	trial.	The	client	was	found	guilty	and	received	a	50-year	sentence.	

	
•

Supervision	tends	to	include	internal	rule	enforcement	and	not	mentoring.	

	
There	were	some	positive	comments	regarding	supervision	and	mentorship	at	SCFO	as	
well:	
	
• In	the	two	sections	I	was	primarily	assigned,	I	worked	with	good	people,	a	few	of	
whom	 I	 consider	 mentors.	 Some	 included	 my	 supervisors	 in	 civil	 commitment	
and	appellate	sections.	
	
• There	are	some	great	lawyers	at	SCFO	and	I	was	able	to	learn	from	many	people	
that	 I	 got	 to	 work	 along	 side.	 Everyone	 was	 always	 eager	 to	 help	 and	 provide	
whatever	mentoring	I	requested.	
	
• My	supervisors	were	always	available	for	mentoring	and	were	always	generous	
with	their	time.	To	the	extent	this	was	attributable	to	SCFO	as	an	entity,	it	was	
because	they	were	hiring	lawyers	out	of	law	school	and	it	was	incumbent	upon	
the	 office	 to	 mentor	 the	 new	 lawyers.	 Most	 of	 it	 was	 due	 to	 the	 personal	
characteristics	of	the	supervisors,	none	of	whom	are	there	anymore,	and	many	
of	whom	were	driven	out	by	unduly	punitive	management.	
	
Views	of	SPU	Prosecutors	Regarding	SCFO	Operations	
	
Although	no	prosecutors	responded	to	the	survey,	four	prosecutors	from	the	SPU	were	
interviewed	 (out	 of	 five	 contacted)	 to	 get	 a	 sense	 of	 prosecutors’	 views	 on	 SCFO	
attorneys	 and	 the	 agency’s	 operations.49	These	 prosecutors	 were	 recommended	 by	 a	
former	SCFO	attorney,	and	one	was	also	recommended	by	a	member	of	the	LSPCM.	Two	
of	the	attorneys	are	current	SPU	employees;	two	are	former	employees	who	left	fairly	
recently.	All	four	prosecutors	who	were	interviewed	have	significant	experience	at	SPU	
and	being	a	prosecutor	in	general.	Three	of	the	four	preferred	that	their	responses	be	
kept	anonymous,	so	the	author	has	decided	to	keep	all	responses	anonymous.		
	
Prosecutors	were	asked	a	standard	set	of	seven	questions,	focusing	on	issues	of	concern	
that	were	raised	by	survey	respondents	and	issues	that	prosecutors	would	likely	know	
about	 or	 have	 an	 opinion	 of	 from	 their	 regular	 interactions	 with	 SCFO	 attorneys.	 The	
questions	and	summaries	of	their	responses	are	as	follows:	
	
	
	
																																																								

49	Interview	notes	on	file	with	report	author,	Scott	Ehlers.	

	

38	

		
1)	General	Views:	What	are	your	general	thoughts	on	State	Counsel	for	Offenders	in	
terms	of	the	office’s	reputation;	quality	of	representation	they	provide	to	their	clients;	
quality	of	attorneys	in	terms	of	knowledge	of	the	law;	etc.?	
	
Respondents	 believed	 that	 SCFO	 attorneys	 generally	 do	 a	 good,	 “adequate,”	 or	 “more	
than	adequate”	job.	One	said	“the	quality	is	high.”	There	was	an	acknowledgement	that	
SCFO	 attorneys	 had	 a	 difficult	 job	 and	 they	 were	 doing	 a	 good	 job	 under	 the	
circumstances.	One	attorney	expressed	the	view	that	SCFO	attorneys	“think	outside	the	
box,”	and	that	they	seem	well-trained.	Another	expressed	the	view	that	SCFO	attorneys	
were	 “conscientious,”	 made	 sure	 their	 clients	 were	 competent,	 and	 that	 clients	
understood	the	plea	paperwork.	Another	SPU	attorney	said	that	the	SCFO	attorneys	he	
worked	 with	 in	 the	 civil	 commitment	 section	 were	 “outstanding.”	 The	 fourth	
respondent	noted	that	SCFO	had	a	high	turnover	rate	among	criminal	attorneys,	which	
negatively	 effects	 the	 performance	 of	 the	 office.	 From	 his	 perspective,	 this	 high	
turnover	 rate	 was	 due	 to	 poor	 pay	 levels	 because	 attorneys	 leave	 the	 office	 to	 go	 to	
higher	paying	offices	like	the	Harris	County	Public	Defender’s	Office.	Finally,	this	same	
attorney	 said	 that	 he	 had	 heard	 from	 SCFO	 trial	 attorneys	 that	 they	 were	 too	
micromanaged	by	management.	
		
2)	Operational	Independence:	Do	you	believe	SCFO	is	adequately	independent	from	
the	influence	of	management	at	TDCJ,	SCFO	has	adequate	control	over	its	budget,	and	
do	you	believe	additional	operational	independence	is	needed	for	SCFO	to	effectively	
represent	inmate	clients?	
	
Three	attorneys	acknowledged	some	concern	regarding	the	relationship	between	SCFO	
and	TDCJ	or	TBCJ;	the	other	was	not	sure	when	it	came	to	the	budget	but	generally	felt	
that	 the	 relationship	 did	 not	 effect	 the	 representation	 of	 clients.	 One	 attorney	 noted	
that	while	SCFO	is	independent	from	TDCJ	operationally,	they	were	not	independent	in	
terms	of	their	budget.	He	felt	like	SCFO	was	“probably	the	lowest	person	on	the	totem	
pole	 in	 terms	 of	 pay”	 and	 that	 SCFO	 “lawyers	 are	 not	 paid	 what	 they	 should	 be.”	
Another	attorney	felt	like	individual	attorneys	were	exemplary	and	were	not	influenced	
by	TDCJ	management,	but	that	“the	administration	[of	SCFO]	is	cognizant	that	they	work	
for	 TDCJ,	 especially	 in	 regard	 to	 the	 salaries	 for	 these	 young	 attorneys.”	 The	 third	
attorney	expressed	the	strongest	views	regarding	independence,	saying	that	if	SCFO	was	
“an	independent	state	agency	like	SPU,	that	would	be	the	best	thing	to	happen.”	This	
attorney	 felt	 like	 “for	 appearance	 sake,	 they	 [SCFO]	 should	 not	 be	 under	 the	 same	
umbrella	 as	 the	 prison	 system.”	 He	 noted	 that	 inmates	 will	 say	 that	 SCFO	 attorneys	
work	 for	 the	 prison	 system,	 and	 this	 makes	 it	 difficult	 for	 SCFO	 attorneys	 in	 terms	 of	
having	 to	 explain	 to	 their	 clients	 that	 they	 are	 not	 “selling	 them	 out.”	 The	 fourth	
attorney	 acknowledged	 that	 clients	 might	 think	 that	 SCFO	 attorneys	 were	 “in	 cahoots	
with	 the	 State”	 but	 he	 felt	 like	 SCFO	 attorneys	 took	 pride	 in	 their	 independence	 from	
TDCJ.	
		

	

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3)	Interference	by	SCFO	Management	into	Staff	Attorneys’	Representation:	Are	you	
aware	of	or	have	an	opinion	regarding	whether	SCFO	attorneys	have	sufficient	
independent	discretion	to	adequately	represent	their	clients	or	any	knowledge	of	
SCFO	policies,	rules,	or	management	that	hampers	SCFO	attorneys’	representation	of	
their	clients?	

	
None	 of	 the	 attorneys	 were	 aware	 of	 any	 written	 policies	 or	 procedures	 limiting	
attorneys’	 discretion.	 One	 attorney	 said	 there	 were	 likely	 some	 guidelines	 just	 like	
prosecutor	 offices	 have.	 Three	 of	 the	 four	 SPU	 attorneys	 did	 say	 that	 they	 had	 heard	
SCFO	 attorneys	 complain	 about	 not	 having	 the	 necessary	 independence	 to	 deal	 with	
certain	 cases,	 being	 micromanaged,	 or	 having	 to	 report	 back	 to	 management	 on	 too	
many	 issues.	 One	 SPU	 attorney	 had	 been	 involved	 in	 some	 cases	 where	 SCFO	
management	 “reigned	 in”	 the	 SCFO	 attorney	 and	 he	 felt	 like	 it	 was	 appropriate.	 But	
nobody	felt	like	management	was	interfering	with	their	representation.	
	
4)	Caseloads:	Do	you	have	a	sense	of	whether	SCFO	attorneys	are	handling	too	many	
cases	to	provide	effective	representation?	
	
None	of	the	SPU	attorneys	believed	that	caseloads	were	excessive	for	SCFO	attorneys.	
One	 attorney	 noted	 that	 some	 SCFO	 attorneys	 complained	 that	 they	 had	 too	 many	
cases	 but	 did	 not	 believe	 SCFO	 attorneys	 were	 any	 more	 overworked	 than	 SPU	
prosecutors.	One	SPU	attorney	complained	about	SCFO’s	process	for	handling	cases	in	
which	 an	 inmate	 was	 transferred	 to	 another	 prison.	 Rather	 than	 transferring	 that	
inmate’s	 case	 to	 another	 SCFO	 attorney	 closer	 to	 the	 unit,	 the	 original	 SCFO	 attorney	
would	 be	 required	 to	 keep	 the	 case,	 oftentimes	 resulting	 in	 long	 drive	 times	 and	 case	
delays.			
	
5)	Case	Matching:	Do	you	believe	the	ability,	training,	and	experience	of	SCFO	
attorneys	match	the	complexity	of	the	cases	to	which	they	are	assigned?	
	
In	general	the	SPU	attorneys	thought	that	SCFO	attorneys	were	qualified	to	handle	the	
cases	to	which	they	were	assigned.	One	attorney	said	that	it	seemed	like	SCFO	had	less	
experienced	lawyers	but	seem	to	be	getting	more	experienced	lawyers	lately.	Another	
noted	 that	 SCFO	 has	 “lots	 of	 newbies”	 due	 to	 turnover	 because	 the	 pay	 is	 low	 and	
attorneys	leave	to	other	offices	to	make	more	money.	Nonetheless,	this	lawyer	felt	like	
SCFO	 was	 doing	 a	 good	 job	 of	 training	 new	 lawyers	 and	 that	 for	 the	 most	 part	 the	
criminal	division	did	not	have	very	complex	cases.	Another	SPU	prosecutor	noted	that	
when	SCFO	did	bring	in	new	lawyers,	the	more	experienced	lawyers	did	a	good	job	of	
mentoring	and	supervising	the	younger	lawyers.	
	
6)	Adequacy	of	Resources:	Do	you	believe	that	SCFO	has	adequate	resources	to	
effectively	represent	their	clients,	including	attorney	and	support	staff	salary	levels,	
and	funding	for	experts?	
	
	

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All	 four	 SPU	 attorneys	 said	 that	 SCFO	 attorneys	 were	 not	 paid	 adequately.	 One	 SPU	
attorney	 estimated	 that	 SCFO	 attorneys	 should	 be	 paid	 at	 least	 15	 percent	 more,	
probably	20	percent	more.	One	attorney	remembered	being	told	by	one	SCFO	attorney	
that	they	had	to	buy	their	own	blue	pens.	Another	SPU	attorney	felt	like	SCFO’s	expert	
funding	was	adequate	because	an	expert	reviewed	all		or	most	cases	in	which	he	was	
opposing	counsel	and	then	testified	in	a	significant	number	of	cases.	
	
7)	Parity	of	Resources	with	Prosecution	Function:	Do	you	believe	that	SCFO	receives	
equal	resources	as	the	prosecution,	SCFO	attorneys	are	paid	equally	to	their	
prosecutor	counterparts,	and	that	SCFO	and	the	prosecution	are	treated	as	equal	
partners	in	the	justice	system?	
	
Once	again,	all	four	SPU	attorneys	believed	that	SPU	attorney	salaries	were	higher	than	
SCFO	 attorney	 salaries.	 One	 attorney	 said	 that	 SPU	 attorneys	 will	 have	 an	 annual	
starting	salary	of	approximately	$75,000,	while	an	SCFO	attorney	who	has	been	with	the	
agency	 for	 a	 number	 of	 years	 would	 only	 be	 making	 $65,000.	 Another	 attorney	
expressed	the	belief	that	there	was	a	problem	of	equality	of	funding	between	the	two	
agencies,	 noting	 that	 the	 cars	 used	 by	 SPU	 were	 newer,	 laptops	 at	 SCFO	 were	 not	 as	
good	as	SPU,	and	the	pay	schedule	for	SPU	attorneys	was	“quite	a	bit	more”	than	SCFO	
attorneys.	 This	 attorney	 expressed	 the	 concern	 that	 SCFO	 attorneys	 don’t	 “have	 the	
promise	 of	 rising	 up	 the	 ladder	 to	 have	 longevity	 and	 experience,”	 and	 that	 SCFO	
attorneys	will	leave	to	go	work	for	a	DA’s	office	or	the	Harris	County	Public	Defender’s	
Office	to	get	paid	better.		
			
Conclusions	Regarding	SCFO’s	Compliance	with	the	ABA	Ten	Principles	
	
There	were	a	number	of	the	ABA	Ten	Principles	that	SCFO	is	not	complying	with	based	
on	 a	 review	 of	 the	 survey	 results,	 interviews	 with	 prosecutors,	 statutes,	 and	 budgets.	
The	principles	that	appear	to	have	the	most	serious	compliance	problems	are	Principle	
1-Independence	 and	 Principle	 8-Parity	 Between	 Defense	 and	 Prosecution	 (including	
parity	in	attorney	salaries	and	adequate	resources	for	SCFO).	It	is	easy	to	see	how	a	lack	
of	independence	for	the	department	can	negatively	impact	its	ability	to	have	adequate	
resources	 to	 defend	 its	 clients	 and	 have	 parity	 with	 the	 prosecution	 function.	 There	
were	 also	 numerous	 complaints	 about	 management	 not	 allowing	 adequate	
independence	for	attorney	decision-making.	
	
Numerous	 other	 principles	 were	 not	 complied	 with	 according	 to	 a	 majority	 of	 survey	
respondents,	 including	 Principle	 2-Private	 Bar	 and	 Public	 Defender	 Participation;	
Principle	 3-Adequate	 Screening	 and	 Rapid	 Appointment	 of	 Counsel;	 Principle	 4Sufficient	 Time	 and	 Adequate	 Space	 to	 Meet	 with	 Clients;	 Principle	 5-Workload	
Controls;	 Principle	 6-Proper	 Case	 Matching	 to	 Counsel	 Abilities;	 and	 Principle	 10Supervision	and	Performance	Review.		
	

	

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Principle	 9-Providing	 and	 Requiring	 Continuing	 Legal	 Education,	 was	 the	 only	 principle	
where	 over	 40	 percent	 of	 survey	 respondents	 agreed	 that	 the	 principle	 was	 being	
followed,	 but	 that	 is	 to	 be	 expected	 considering	 that	 the	 State	 Bar	 requires	 a	 certain	
number	of	CLE	hours	every	year	for	attorneys	to	retain	licensure.	There	were	still	many	
negative	 comments	 regarding	 this	 principle	 because	 respondents	 felt	 like	 there	 was	
inadequate	agency	financial	support	for	attorney	training.		
	
Provision	of	Indigent	Defense	Services	to	Inmates	in	Other	States	
	
The	committee	also	investigated	a	select	number	of	other	states	to	determine	if	lessons	
could	be	learned	from	other	jurisdictions.50	The	committee	determined	that	it	was	not	
feasible	 to	 conduct	 a	 comprehensive	 50-state	 survey	 of	 indigent	 inmate	 legal	 services	
due	 to	 constrained	 time	 and	 resources,	 so	 it	 limited	 its	 research	 to	 states	 with	 large	
populations	 like	 Texas;	 surrounding	 states;	 and	 states	 the	 LSPCM	 determined	 through	
inquiries	 among	 defense	 practitioners	 would	 have	 offices	 devoted	 to	 inmate	 legal	
services.		
	
The	 eleven	 states	 the	 committee	 examined	 included:	 Arkansas;	 California;	 Florida;	
Illinois;	 Louisiana;	 Massachusetts;	 New	 Mexico;	 New	 York;	 North	 Carolina;	 Oklahoma;	
and	Washington.		
	
The	 committee	 determined	 that	 these	 eleven	 states	 could	 be	 broken	 down	 into	 two	
categories	based	on	how	they	provide	criminal	defense	services	to	indigent	inmates:	
	
Category	 1:	 States	 with	 a	 statewide	 public	 defender	 system,	 where	 the	
office	 in	 which	 a	 specific	 prison	 is	 located	 would	 be	 tasked	 with	
representing	 the	 prisoner	 in	 that	 particular	 prison.	 The	 states	 in	 this	
category	 include:	 Arkansas;	 Florida;	 Massachusetts;	 New	 Mexico;	 and	
Oklahoma.		
	
Category	2:	States	with	no	statewide	public	defender	system	where	local	
private	 counsel	 or	 local	 public	 defender	 offices	 in	 which	 the	 prison	 is	
located	would	be	appointed	to	represent	the	prisoner.	The	states	in	this	
category	include:	California;	Illinois;	Louisiana;	New	York;	North	Carolina;	
and	Washington.		
	
It	should	be	noted	that	Massachusetts	and	New	York	do	have	independent	offices	that	
provide	 legal	 services	 to	 inmates,	 but	 their	 services	 are	 limited	 to	 civil	 matters	 only.	
North	 Carolina	 also	 has	 a	 separate	 office	 that	 represents	 inmates	 in	 post-conviction	
matters,	which	is	discussed	in	more	detail	below.	51	
																																																								
50	Thanks	to	Melissa	Fischer,	Gen.	Admin.	Counsel,	Bexar	Co.	Criminal	Dist.	Ct.	Admin.,	for	providing	
the	research	for	this	section	of	the	report.	
51		Our	Work,	NORTH	CAROLINA	PRISONER	LEGAL	SERVICES,	https://www.ncpls.org/work/	(last	visited	July	
28,	2016).		

	

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Based	on	our	limited	review,	there	is	no	other	state	with	an	office	analogous	to	SCFO,	
that	is	a	state	with	no	statewide	public	defender	office	but	which	has	a	statewide	public	
defender	 that	 is	 limited	 to	 defending	 prisoners	 accused	 of	 a	 crime	 committed	 in	 a	
correctional	facility.		
	
In	 regard	 to	 criminal	 defense	 services	 provided	 to	 indigent	 inmates,	 here	 are	 some	 of	
the	key	elements	we	discovered	about	other	states:	
	
Arkansas52:	 Legal	 services	 to	 prisoners	 are	 provided	 by	 the	 Arkansas	 Public	 Defender	
Commission,	 a	 statewide	 public	 defender	 comprised	 of	 23	 judicial	 districts.	 The	 PD	 in	
the	 district	 where	 the	 prison	 is	 located	 would	 handle	 any	 criminal	 matters	 for	 those	
prisoners.	 The	 office	 handles	 criminal	 legal	 services	 to	 prisoners,	 trial	 and	 appellate	
cases,	 juvenile,	 and	 mental	 health	 cases.	 The	 judicial	 districts	 report	 to	 an	 executive	
director,	 who	 reports	 to	 a	 seven-member	 commission.	 There	 are	 caseload	 standards,	
but	 according	 to	 a	 recent	 news	 report,	 attorneys	 are	 severely	 beyond	 ABA	
recommended	 caseload	 standards.53	Average	 attorney	 salary	 is	 $66,000.	 Attorneys	 are	
hired	 on	 two-year	 contracts.	 There	 are	 minimum	 qualifications.	 There	 is	 no	 training	
program	for	attorneys.	There	is	no	parity	with	the	prosecution.	
	
California54:	 Legal	 services	 to	 prisoners	 are	 provided	 by	 private	 attorneys	 or	 public	
defender	offices	that	are	appointed	by	the	district	or	county	where	the	prison	is	located.	
Some	 counties	 contract	 with	 law	 firms	 to	 provide	 this	 representation.	 While	 the	
California	 Office	 of	 the	 State	 Public	 Defender	 was	 established	 in	 1976	 to	 represent	
indigent	 criminal	 defendants	 on	 appeal,	 since	 1990	 it	 has	 been	 mandated	 by	 all	 three	
branches	 of	 government	 to	 focus	 on	 death	 penalty	 appeals	 and	 habeas	 corpus	
matters. 55 	The	 Habeas	 Corpus	 Resource	 Center	 also	 represents	 indigent	 inmates	 in	
death	 penalty	 habeas	 corpus	 proceedings.	 The	 Prison	 Law	 Office	 in	 Berkeley	 is	 a	 nonprofit	 law	 firm	 in	 existence	 for	 over	 40	 years	 that	 provides	 free	 legal	 services	 to	
California	inmates	to	improve	conditions	of	confinement	through	class	action	and	other	
impact	 litigation,	 as	 well	 as	 public	 education	 and	 providing	 technical	 assistance	 to	
attorneys.	 56 	The	 office	 also	 publishes	 The	 California	 State	 Prisoners	 Handbook:	 A	
Comprehensive	Guide	to	Prison	and	Parole	Law.	Most	of	the	public	defender	offices	are	
																																																								
52	Melissa	Fischer	phone	conversation	with	Bill	Simpson,	Arkansas	Public	Defender	Commission,	

District	6.		See	also	http://www.arkansas.gov/apdc/.			
53	David	Koon,	Arkansas	public	defenders	stretched	thin,	ARKANSAS	TIMES	(January	29,	2015),	
http://www.arktimes.com/arkansas/arkansas-public-defenders-stretchedthin/Content?oid=3640129.	
54	Melissa	Fischer	phone	conversation	with	Corene	Kendrick,	Prison	Law	Office	in	San	Quentin.		See	
also	the	Office	of	the	State	Public	Defender	website	at	http://www.ospd.ca.gov.	Melissa	Fischer	also	
spoke	to	an	employee	in	the	Office	of	the	State	Public	Defender.	See	also	the	Habeas	Corpus	Resource	
Center	website	at	http://www.hcrc.ca.gov.	
55	About	Us,	OFFICE	OF	THE	STATE	PUBLIC	DEFENDER,	http://www.ospd.ca.gov/about.asp	(last	visited	Oct.	
3,	2016).	
56	About	Us,	Prison	Law	Office,	http://prisonlaw.com/about-us/	(last	visited	Oct.	3,	2016).	

	

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independent.	 Budgets,	 salaries,	 caseload	 standards,	 and	 training	 differ	 from	 office	 to	
office.	There	is	no	parity	with	the	prosecution.	
	
Florida57 :	 Legal	 services	 to	 prisoners	 are	 provided	 by	 public	 defender	 offices	 in	 20	
judicial	 circuits,	 with	 each	 office	 led	 by	 an	 elected	 public	 defender.	 The	 elected	 public	
defender	 in	 the	 circuit	 where	 the	 prison	 is	 located	 would	 handle	 any	 criminal	 matters	
for	 those	 prisoners.	 The	 offices	 handle	 misdemeanors,	 felonies,	 capital	 offenses,	 and	
juveniles.	 Office	 budgets	 are	 appropriated	 by	 the	 legislature	 according	 to	 historical	
formulas	 but	 offices	 can	 request	 more.	 Caseload	 standards	 vary	 by	 district.	 Attorney	
salaries	 range	 from	 $40,000	 to	 $85,000.	 There	 is	 extensive	 training.	 There	 is	 no	 parity	
with	prosecution.		
	
Illinois58:	 Legal	 services	 to	 prisoners	 are	 provided	 by	 each	 county’s	 public	 defender	
office	where	the	prison	is	located.	Appellate	services	are	provided	by	the	Illinois	Office	
of	 the	 State	 Appellate	 Defender	 (OSAD).	 There	 is	 no	 statewide	 oversight	 board	 or	
commission	 that	 oversees	 the	 county	 PD	 offices.	 All	 indigent	 criminal	 trial	 cases	 are	
handled.	 Each	 county	 PD	 reports	 to	 their	 county	 Board	 of	 Commissioners.	 OSAD	 is	 a	
state	agency	that	reports	to	an	advisory	board.	Budgets	and	caseload	standards	differ	by	
office.	 Training	 is	 offered	 through	 the	 Public	 Defender	 Advocacy	 School	 and	 the	
statewide	PD	organization.	There	is	no	parity	with	the	prosecution.	
	
Louisiana59:	 Legal	 services	 to	 prisoners	 are	 provided	 by	 each	 of	 the	 42	 judicial	 district	
public	defenders	in	Louisiana,	depending	on	where	the	prison	is	located.	The	Louisiana	
Public	 Defender	 Board	 (LPDB)	 administers	 the	 Public	 Defender	 Fund,	 which	 provides	
funds	for	expert	witness	fees	and	some	DNA	testing.	The	LPDB	contracts	with	eight	nonprofits	to	provide	appellate	representation,	capital	trial	conflict	representation,	capital	
post-conviction	representation,	and	claims	of	actual	innocence	for	prisoners	serving	life	
sentences.	 Each	 district	 PD	 office	 handles	 indigent	 criminal	 trials	 for	 the	 county.	 The	
LPDB	 reports	 to	 the	 legislature.	 PD	 offices	 are	 funded	 by	 the	 legislature	 and	 the	 city	
where	 they	 are	 located.	 Caseload	 standards	 exist	 but	 are	 often	 not	 followed.	 Salaries	
range	 from	 $30,000	 to	 $100,000.	 Turnover	 rates	 are	 high	 at	 49	 percent.	 There	 are	 no	
minimum	 qualifications	 for	 attorneys.	 There	 are	 many	 training	 opportunities.	 There	 is	
no	parity	with	the	prosecution.	
	
Massachusetts:	 Legal	 services	 to	 prisoners	 in	 criminal	 matters	 are	 provided	 by	 the	
Massachusetts	 Committee	 for	 Public	 Counsel	 Services	 (CPCS),	 who	 oversees	 the	
provision	 of	 legal	 representation	 to	 indigent	 persons	 in	 criminal	 and	 civil	 cases	 and	
																																																								
57	Melissa	Fischer	phone	conversation	with	the	Hon.	Stacy	Scott,	Public	Defender-8th	Circuit.		See	also	
the	website	for	the	Florida	Public	Defender	Association,	http://www.flpda.org.			
58	Melissa	Fischer	phone	conversation	with	Michael	J.	Pelletier,	Ill.	Office	of	the	State	App.	Defender.		
See	also	http://www.illinois.gov/osad/.	
59	Melissa	Fischer	phone	conversation	with	a	representative	of	the	La.	Corrections	Dep’t,,	Legal	
Affairs	Div.		Phone	conversation	with	James	T.	Dixon,	La.	Pub.	Defender	Bd.	See	also	the	website	for	
the	La.	Pub.	Defender	Bd.,	http://www.lpdb.la.gov/.			

	

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administrative	proceedings	in	which	there	is	a	right	to	counsel.	There	are	about	20	CPCS	
offices	in	Massachusetts.	There	is	an	oversight	committee	of	fifteen	persons	appointed	
by	the	Governor,	Speaker	of	the	House,	President	of	the	Senate,	and	the	State	Supreme	
Court.	There	are	reports	that	offices	are	understaffed	and	underpaid.	Attorneys	must	be	
certified	by	CPCS	to	accept	appointments	and	go	through	some	training.	The	office	has	
its	own	training	unit.	Unclear	if	parity	with	the	prosecution.	
	
New	 Mexico:	 Legal	 services	 to	 prisoners	 are	 provided	 by	 the	 Law	 Office	 of	 the	 Public	
Defender	(LOPD),	a	statewide	public	defender	comprised	of	13	district	offices.	The	PD	in	
the	 district	 where	 the	 prison	 is	 located	 handles	 criminal	 matters	 for	 those	 prisoners,	
though	 the	 district	 office	 in	 Albuquerque	 handles	 all	 post-conviction	 matters	 for	 the	
entire	 state.	 The	 Public	 Defender	 Commission,	 comprised	 of	 11	 members,	 provides	
oversight	of	the	agency	and	appoints	a	chief.	Salaries	range	from	$42,000	to	$160,000	
for	 the	 chief.	 There	 is	 some	 internal	 training	 for	 new	 attorneys.	 No	 parity	 with	 the	
prosecution.	
	
New	 York60:	 Legal	 services	 to	 prisoners	 in	 criminal	 matters	 are	 provided	 by	 private	
attorneys	or	legal	services	organizations	such	as	the	Legal	Aid	Society,	Criminal	Defense	
Office	 in	 New	 York	 City,	 depending	 on	 where	 the	 prison	 is	 located.	 There	 are	 also	
organizations	 like	 Prisoner’s	 Services	 of	 New	 York	 that	 represent	 prisoners	 in	 civil	
matters.	 The	 Mental	 Hygiene	 Legal	 Service	 represents	 people	 with	 special	 needs	 in	
prisons	and	those	receiving	care	at	facilities	for	persons	with	mental	disabilities.	They	do	
represent	prisoners	on	civil	liberties	matters	and	respondents	in	civil	actions	under	the	
Sex	 Offender	 Management	 and	 Treatment	 Act.	 Individual	 organizations	 representing	
indigent	 inmates	 in	 criminal	 matters	 represent	 them	 at	 trial	 and	 on	 appeal.	 Funds	 for	
offices	 are	 provided	 to	 an	 extent	 by	 the	 New	 York	 Office	 of	 Indigent	 Legal	 Services.	
Budgets,	 salaries,	 qualifications,	 training,	 and	 caseload	 standards	 differ	 from	 office	 to	
office.	No	parity	with	the	prosecution.	
	
North	Carolina61,	62:	Indigent	inmates	who	are	accused	of	committing	a	crime	in	prison	
are	appointed	counsel	like	any	other	indigent	defendant	in	North	Carolina.	If	an	inmate	
commits	a	crime	in	one	of	the	counties	that	has	a	public	defender	office,	then	the	public	
defender	office	represents	the	inmate.	If	the	crime	is	allegedly	committed	in	a	county	
without	a	public	defender	office,	then	a	private	attorney	is	appointed	to	represent	the	
inmate.	 The	 state	 also	 has	 a	 statewide	 direct	 appeal	 office	 called	 the	 Office	 of	 the	
Appellate	 Defender	 which	 would	 represent	 an	 indigent	 inmate	 on	 direct	 appeal	 or	
																																																								
60	Melissa	Fischer	phone	conversation	with	Andrew	Davies,	Dir.	of	Research,	N.Y.	Office	of	Indigent	
Legal	Serv.		See	also	the	website	for	The	Legal	Aid	Soc’y,	http://www.legal-aid.org;		website	for	
Prisoners’	Legal	Serv.	of	N.Y.,	http://plsny.org;	and	website	for	the	Mental	Hygiene	Legal	Serv.,		
http://www.justicecenter.ny.gov/mental-hygiene-legal-service-mhls.		
61	Melissa	Fisher	phone	conversation	with	a	representative	from	the	N.C.	Prisoner	Legal	Serv.	See	also	
http://www.ncpls.org.		Melissa	Fischer	phone	conversation	with	John	W.	King,	Research	Dep’t,	N.C.	
Office	of	Indigent	Defense	Serv.		See	also	http://www.ncids.org.	
62	Scott	Ehlers	phone	conversation	with	Thomas	K.	Maher,	Executive	Director,	Office	of	Indigent	
Defense	Services	(Oct.	3,	2016).	

	

45	

		
appoint	 a	 private	 lawyer	 to	 do	 so.	 Post-conviction	 legal	 services	 to	 prisoners	 are	
provided	 by	 the	 North	 Carolina	 Prisoner	 Legal	 Services	 Inc.,	 a	 contractor	 of	 the	 North	
Carolina	 Office	 of	 Indigent	 Defense	 Services.	 This	 office	 was	 established	 to	 provide	
inmates	 with	 their	 constitutional	 right	 to	 meaningful	 access	 to	 the	 courts	 pursuant	 to	
Bounds	 v.	 Smith,	 a	 U.S.	 Supreme	 Court	 case	 originating	 out	 of	 North	 Carolina.63	The	
office	 handles	 post-conviction	 relief	 mainly	 and	 some	 civil	 rights	 claims.	 The	
organization	 is	 an	 independent,	 non-profit	 law	 firm.	 There	 are	 no	 caseload	 standards	
and	no	parity	with	the	prosecution	according	to	persons	interviewed.	
	
Oklahoma64 :	 Legal	 services	 to	 prisoners	 in	 almost	 all	 counties	 are	 provided	 by	 the	
Oklahoma	Indigent	Defense	System	(OIDS).	Prisoners	are	represented	by	the	Tulsa	and	
Oklahoma	county	public	defender	offices.	The	System	is	responsible	for	trial,	appellate,	
and	post-conviction	matters	for	all	indigent	accused,	including	prisoners.	The	executive	
director	of	OIDS	reports	to	a	board	of	directors,	whose	members	are	appointed	by	the	
governor.	 Attorneys	 must	 meet	 minimum	 standards	 including	 letters	 of	
recommendation	and	good	standing.	There	is	in-house	and	outside	training.	
	
Washington65:	 Legal	 services	 to	 prisoners	 are	 provided	 by	 private	 attorneys	 or	 public	
defender	 offices	 that	 are	 appointed	 by	 the	 appointing	 authority	 where	 the	 prison	 is	
located.	 Some	 counties	 contract	 with	 law	 firms	 to	 provide	 this	 representation.	 The	
Washington	State	Office	of	Public	Defense	contracts	with	private	individuals	or	firms	to	
provide	inmate	appellate	representation.	Types	of	cases	handled	differs	from	office	to	
office,	 as	 do	 budgets,	 staffing,	 caseload	 standards,	 salaries,	 training	 programs,	 and	
minimum	qualifications.	There	is	no	parity	with	the	prosecution.		
	
If	 the	 committee	 had	 the	 time	 and	 resources,	 it	 might	 be	 possible	 to	 compare	 the	
resources	provided	in	those	states	with	statewide	public	defender	offices	to	defending	
indigent	 inmates	 accused	 of	 committing	 crimes	 in	 prison	 to	 the	 resources	 available	 to	
SCFO.	 Unfortunately	 we	 do	 not.	 As	 a	 result,	 a	 more	 comprehensive	 comparison	 with	
other	states	was	not	viable	at	this	time.		
	

Recommendations	

	
The	 Committee	 is	 most	 concerned	 with	 SCFO’s	 lack	 of	 independence	 from	 TDCJ,	
inappropriate	interference	by	SCFO	management	into	staff	attorneys’	representation	of	
clients,	and	lack	of	parity	with	the	prosecution	function	in	regard	to	prisoners	charged	
with	 crimes	 allegedly	 committed	 in	 correctional	 institutions,	 parity	 of	 institutional	
independence,	and	parity	of	resources.		
	
																																																								
63	Bounds	v.	Smith,	430	U.S.	817	(1977)	
64	Melissa	Fischer	phone	conversation	with	Joe	P.	Robertson,	Okla.	Indigent	Defense	Sys.		See	also	
http://www.ok.gov/OIDS/.			
65	Melissa	Fischer	phone	conversation	with	Katrin	Johnson,	Wash.	State	Office	of	Public	Defense.		See	
also	http://www.opd.wa.gov/.	

	

46	

		
The	 Committee	 also	 believes	 that	 a	 more	 comprehensive	 review	 of	 SCFO’s	 operations	
may	be	helpful.	If	such	a	review	were	conducted,	the	most	appropriate	entity	to	carry	
that	out	would	be	the	Texas	Indigent	Defense	Commission,	the	state	agency	that	is	most	
qualified	to	review	the	operations	of	a	Texas	public	defender	office.		
	
As	 such,	 the	 State	 Bar	 of	 Texas’	 Legal	 Services	 to	 the	 Poor	 in	 Criminal	 Matters	
Committee	recommends	that:	
	
(1)	SCFO	should	be	an	agency	that	is	funded	and	operated	independently	from	TDCJ	and	
TBCJ	in	order	to	comply	with	Principle	1	of	the	ABA’s	Ten	Principles	of	a	Public	Defense	
Delivery	System.		
	
(2)	 State	 funding	 for	 SCFO	 and	 the	 defense	 of	 indigent	 inmates	 charged	 with	 crimes	
committed	 in	 TDCJ	 institutions,	 as	 well	 as	 the	 defense	 of	 indigent	 offenders	 who	 are	
subject	to	court	proceedings	under	the	Sexually	Violent	Predator	(SVP)	civil	commitment	
statute,	should	be	increased	in	order	to	provide	quality,	effective	representation.	Such	
state	 funding	 should	 ensure	 parity	 between	 the	 defense	 and	 prosecution	 functions,	
including	 staff	 and	 attorney	 salary	 levels,	 as	 required	 by	 Principle	 8	 of	 the	 ABA’s	 Ten	
Principles	of	a	Public	Defense	Delivery	System.	
	
3)	In	lieu	of	the	creation	of	an	independent	SCFO	and	parity	in	funding	between	SCFO	
and	 the	 prosecution	 function,	 the	 Texas	 Indigent	 Defense	 Commission	 (TIDC)	 should	
coordinate	 with	 the	 Texas	 Department	 of	 Criminal	 Justice	 (TDCJ)	 to	 conduct	 an	
evaluation	 of	 the	 operations	 of	 SCFO.	 The	 study	 should	 include	 an	 evaluation	 of	
attorney	 caseloads	 as	 they	 compare	 to	 national	 standards;	 attorney	 salaries	 as	 they	
compare	to	attorney	salaries	in	the	SPU;	the	SCFO	budget	as	it	compares	to	budgets	in	
similar	offices	in	other	states;	the	use	of	investigators	and	experts,	case	outcomes,	and	
how	the	structure	and	operations	of	the	SCFO	compare	to	the	recommendations	of	the	
American	Bar	Association's	Ten	Principles	of	a	Public	Defense	Delivery	System;	as	well	as	
any	other	best	practices	determined	by	the	TIDC.	A	report	including	the	results	of	the	
study	should	be	submitted	to	the	Legislative	Budget	Board	and	the	Governor	not	later	
than	September	1,	2018.66		

																																																								

66	Similar	language	was	included	in	Contingent	Provision	Sec.	17.12,	H.	Comm.	Sub.,	S.B..1,	83rd	Sess.	

IX-66	(Tex.	2013),	http://www.lbb.state.tx.us/Appropriations_Bills/83/House_CSSB1.pdf.	

	

47	

APPENDIX A

Ten
Principles
Of a Public Defense Delivery System

Februar y 2002

ABA Standing Committee
On Legal Aid And Indigent Defendants

2001-2002
Chair
L. Jonathan Ross
Manchester, NH

Members
Phyllis J. Holmen
Atlanta, GA

Lonnie Johnson
Baytown, TX

Norman Lefstein
Indianapolis, IN

James C. Moore
Rochester, NY

John H. Pickering
Washington, DC

Ragan L. Powers
Seattle, WA

Sarah M. Singleton
Santa Fe, NM

Randolph N. Stone
Chicago, IL

Janet R. Studley
Washington, DC

William Whitehurst
Austin TX

Staff
Terrence J. Brooks, Committee Counsel
Beverly Groudine, Associate Committee Counsel
Shubhangi Deoras, Assistant Committee Counsel
Janice Jones, Program Manager
Michaeline Glascott, Administrative Assistant

Copyright © 2002 by the American Bar Association
All rights reserved. No part of this document may be reproduced in any form or by any electronic or mechanical
means including information storage and retrieval systems without permission in writing from the publisher,
except by a reviewer who may quote brief passages in a review.

Ten
Principles
Of a Public Defense Delivery System

Februar y 2002

Approved by American Bar Association House of Delegates, February 2002. The American Bar
Association recommends that jurisdictions use these Principles to assess promptly the needs of
public defense delivery systems and clearly communicate those needs to policy makers.

INTRODUCTIOn
The ABA Ten Principles of a Public Defense Delivery System were sponsored by the
ABA Standing Committee on Legal and Indigent Defendants and approved by the ABA
House of Delegates in February 2002. The Principles were created as a practical guide for
governmental officials, policymakers, and other parties who are charged with creating and
funding new, or improving existing, public defense delivery systems. The Principles constitute the fundamental criteria necessary to design a system that provides effective, efficient,
high quality, ethical, conflict-free legal representation for criminal defendants who are unable
to afford an attorney. The more extensive ABA policy statement dealing with indigent
defense services is contained within the ABA Standards for Criminal Justice, Providing
Defense Services (3d ed. 1992), which can be viewed on-line (black letter only) and purchased
(black letter with commentary) by accessing the ABA Criminal Justice Section homepage at
http://www.abanet.org/crimjust/home.html.

ACKNOWLEDGMENTS
The Standing Committee on Legal Aid and Indigent Defendants is grateful to
everyone assisting in the development of the ABA Ten Principles of a Public Defense Delivery
System. Foremost, the Standing Committee acknowledges former member James R.
Neuhard, Director of the Michigan State Appellate Defender Office, who was the first to
recognize the need for clear and concise guidance on how to design an effective system for
providing public defense services. In 2000, Mr. Neuhard and Scott Wallace, Director of
Defender Legal Services for the National Legal Aid and Defender Association, jointly
produced a paper entitled “The Ten Commandments of Public Defense Delivery Systems,”
which was later included in the Introduction to Volume I of the U.S. Department of Justice’s
Compendium of Standards for Indigent Defense Systems. The ABA Ten Principles of a Public
Defense Delivery System are based on this work of Mr. Neuhard and Mr. Wallace.
Special thanks go to the members of the Standing Committee and its Indigent
Defense Advisory Group who reviewed drafts and provided comment. Further, the Standing
Committee is grateful to the ABA entities that provided invaluable support for these
Principles by co-sponsoring them in the House of Delegates, including: Criminal Justice
Section, Government and Public Sector Lawyers Division, Steering Committee on the
Unmet Legal Needs of Children, Commission on Racial and Ethnic Diversity in the
Profession, Standing Committee on Pro Bono and Public Services. We would also like to
thank the ABA Commission on Homelessness and Poverty and the ABA Juvenile Justice
Center for their support.
L. Jonathan Ross
Chair, Standing Committee on
Legal Aid and Indigent Defendants

ABA Ten Principles
Of A Public Defense Delivery System
Black Letter

1

The public defense function,
including the selection, funding,
and payment of defense counsel,
is independent.

2
3
4
5

Where the caseload is sufficiently
high, the public defense delivery
system consists of both a defender
office and the active participation of
the private bar.

Clients are screened for eligibility,
and defense counsel is assigned and
notified of appointment, as soon as
feasible after clients’ arrest, detention,
or request for counsel.

Defense counsel is provided sufficient
time and a confidential space within
which to meet with the client.

Defense counsel’s workload is
controlled to permit the rendering
of quality representation.

6
7
8

Defense counsel’s ability, training,
and experience match the complexity
of the case.

The same attorney continuously
represents the client until completion
of the case.

There is parity between defense
counsel and the prosecution with
respect to resources and defense
counsel is included as an equal
partner in the justice system.

9
10

Defense counsel is provided with and
required to attend continuing legal
education.

Defense counsel is supervised
and systematically reviewed for
quality and efficiency according
to nationally and locally adopted
standards.

1

ABA Ten Principles
Of A Public Defense Delivery System
Wi t h C o m m e n t a r y

1

The public defense function, including
the selection, funding, and payment of
defense counsel,1 is independent. The public
defense function should be independent from
political influence and subject to judicial
supervision only in the same manner and to
the same extent as retained counsel.2 To safeguard independence and to promote efficiency
and quality of services, a nonpartisan board
should oversee defender, assigned counsel, or
contract systems.3 Removing oversight from
the judiciary ensures judicial independence
from undue political pressures and is an
important means of furthering the independence of public defense.4 The selection of the
chief defender and staff should be made on
the basis of merit, and recruitment of attorneys should involve special efforts aimed at
achieving diversity in attorney staff.5

2

Where the caseload is sufficiently high,6
the public defense delivery system consists of both a defender office7 and the active
participation of the private bar. The private
bar participation may include part-time
defenders, a controlled assigned counsel plan,
or contracts for services.8 The appointment
process should never be ad hoc,9 but should
be according to a coordinated plan directed
by a full-time administrator who is also an
attorney familiar with the varied requirements
of practice in the jurisdiction.10 Since the
responsibility to provide defense services rests
with the state, there should be state funding
and a statewide structure responsible for
ensuring uniform quality statewide.11

2

3

Clients are screened for eligibility,12 and
defense counsel is assigned and notified
of appointment, as soon as feasible after
clients’ arrest, detention, or request for
counsel. Counsel should be furnished upon
arrest, detention, or request,13 and usually
within 24 hours thereafter.14

4

Defense counsel is provided sufficient
time and a confidential space within
which to meet with the client. Counsel
should interview the client as soon as practicable before the preliminary examination or the
trial date.15 Counsel should have confidential
access to the client for the full exchange of
legal, procedural, and factual information
between counsel and client.16 To ensure
confidential communications, private meeting
space should be available in jails, prisons,
courthouses, and other places where
defendants must confer with counsel.17

5

Defense counsel’s workload is controlled
to permit the rendering of quality representation. Counsel’s workload, including
appointed and other work, should never be
so large as to interfere with the rendering of
quality representation or lead to the breach of
ethical obligations, and counsel is obligated to
decline appointments above such levels.18
National caseload standards should in no
event be exceeded,19 but the concept of workload (i.e., caseload adjusted by factors such as
case complexity, support services, and an
attorney’s nonrepresentational duties) is a
more accurate measurement.20

6

Defense counsel’s ability, training, and
experience match the complexity of the
case. Counsel should never be assigned a case
that counsel lacks the experience or training to
handle competently, and counsel is obligated
to refuse appointment if unable to provide
ethical, high quality representation.21

7

The same attorney continuously
represents the client until completion
of the case. Often referred to as “vertical
representation,” the same attorney should
continuously represent the client from initial
assignment through the trial and sentencing.22 The attorney assigned for the direct
appeal should represent the client throughout
the direct appeal.

8

There is parity between defense counsel
and the prosecution with respect to
resources and defense counsel is included as
an equal partner in the justice system. There
should be parity of workload, salaries and
other resources (such as benefits, technology,
facilities, legal research, support staff, paralegals, investigators, and access to forensic services and experts) between prosecution and
public defense.23 Assigned counsel should
be paid a reasonable fee in addition to actual
overhead and expenses.24 Contracts with
private attorneys for public defense services
should never be let primarily on the basis of
cost; they should specify performance requirements and the anticipated workload, provide
an overflow or funding mechanism for excess,

unusual, or complex cases,25 and separately
fund expert, investigative, and other litigation
support services.26 No part of the justice
system should be expanded or the workload
increased without consideration of the impact
that expansion will have on the balance and
on the other components of the justice
system. Public defense should participate as
an equal partner in improving the justice
system.27 This principle assumes that the
prosecutor is adequately funded and supported in all respects, so that securing parity will
mean that defense counsel is able to provide
quality legal representation.

9

Defense counsel is provided with and
required to attend continuing legal
education. Counsel and staff providing
defense services should have systematic and
comprehensive training appropriate to their
areas of practice and at least equal to that
received by prosecutors.28

10

Defense counsel is supervised and
systematically reviewed for quality
and efficiency according to nationally and
locally adopted standards. The defender
office (both professional and support staff ),
assigned counsel,or contract defenders should
be supervised and periodically evaluated for
competence and efficiency.29

3

NOTEs
1 “Counsel” as used herein includes a defender office,
a criminal defense attorney in a defender office, a contract attorney, or an attorney in private practice
accepting appointments. “Defense” as used herein
relates to both the juvenile and adult public defense
systems.
2 National Advisory Commission on Criminal Justice
Standards and Goals, Task Force on Courts, Chapter
13, The Defense (1973) [hereinafter “NAC”],
Standards 13.8, 13.9; National Study Commission on
Defense Services, Guidelines for Legal Defense Systems
in the United States (1976) [hereinafter “NSC”],
Guidelines 2.8, 2.18, 5.13; American Bar Association
Standards for Criminal Justice, Providing Defense
Services (3rd ed. 1992) [hereinafter “ABA”], Standards
5-1.3, 5-1.6, 5-4.1; Standards for the Administration of
Assigned Counsel Systems (NLADA 1989) [hereinafter
“Assigned Counsel”], Standard 2.2; NLADA
Guidelines for Negotiating and Awarding Contracts
for Criminal Defense Services, (1984) [hereinafter
“Contracting”], Guidelines II-1, 2; National
Conference of Commissioners on Uniform State Laws,
Model Public Defender Act (1970) [hereinafter
“Model Act”], § 10(d); Institute for Judicial
Administration/American Bar Association, Juvenile
Justice Standards Relating to Counsel for Private Parties
(1979) [hereinafter “ABA Counsel for Private Parties”],
Standard 2.1(D).
3 NSC, supra note 2, Guidelines 2.10-2.13; ABA,
supra note 2, Standard 5-1.3(b); Assigned Counsel,
supra note 2, Standards 3.2.1, 2; Contracting, supra
note 2, Guidelines II-1, II-3, IV-2; Institute for
Judicial Administration/ American Bar Association,
Juvenile Justice Standards Relating to Monitoring (1979)
[hereinafter “ABA Monitoring”], Standard 3.2.
2 Judicial independence is “the most essential character of a free society” (American Bar Association
Standing Committee on Judicial Independence,
1997).
5 ABA, supra note 2, Standard 5-4.1
6 “Sufficiently high” is described in detail in NAC
Standard 13.5 and ABA Standard 5-1.2. The phrase
generally can be understood to mean that there are
enough assigned cases to support a full-time public
defender (taking into account distances, caseload
diversity, etc.), and the remaining number of cases
are enough to support meaningful involvement of
the private bar.
4

7 NAC, supra note 2, Standard 13.5; ABA, supra note
2, Standard 5-1.2; ABA Counsel for Private Parties,
supra note 2, Standard 2.2. “Defender office” means a
full-time public defender office and includes a private
nonprofit organization operating in the same manner
as a full-time public defender office under a contract
with a jurisdiction.
8 ABA, supra note 2, Standard 5-1.2(a) and (b); NSC,
supra note 2, Guideline 2.3; ABA, supra note 2,
Standard 5-2.1.
9 NSC, supra note 2, Guideline 2.3; ABA, supra note
2, Standard 5-2.1.
10 ABA, supra note 2, Standard 5-2.1 and commentary; Assigned Counsel, supra note 2, Standard 3.3.1
and commentary n.5 (duties of Assigned Counsel
Administrator such as supervision of attorney work
cannot ethically be performed by a non-attorney, citing ABA Model Code of Professional Responsibility
and Model Rules of Professional Conduct).
11 NSC, supra note 2, Guideline 2.4; Model Act,
supra note 2, § 10; ABA, supra note 2, Standard 51.2(c); Gideon v. Wainwright, 372 U.S. 335 (1963)
(provision of indigent defense services is obligation of
state).
12 For screening approaches, see NSC, supra note 2,
Guideline 1.6 and ABA, supra note 2, Standard 5-7.3.
13 NAC, supra note 2, Standard 13.3; ABA, supra
note 2, Standard 5-6.1; Model Act, supra note 2, § 3;
NSC, supra note 2, Guidelines 1.2-1.4; ABA Counsel
for Private Parties, supra note 2, Standard 2.4(A).
14 NSC, supra note 2, Guideline 1.3.
15 American Bar Association Standards for Criminal
Justice, Defense Function (3rd ed. 1993) [hereinafter
“ABA Defense Function”], Standard 4-3.2;
Performance Guidelines for Criminal Defense
Representation (NLADA 1995) [hereinafter
“Performance Guidelines”], Guidelines 2.1-4.1; ABA
Counsel for Private Parties, supra note 2, Standard 4.2.

16 NSC, supra note 2, Guideline 5.10; ABA Defense
Function, supra note 15, Standards 4-3.1, 4-3.2;
Performance Guidelines, supra note 15, Guideline
2.2.
17 ABA Defense Function, supra note 15, Standard
4-3.1.
18 NSC, supra note 2, Guideline 5.1, 5.3; ABA,
supra note 2, Standards 5-5.3; ABA Defense
Function, supra note 15, Standard 4-1.3(e); NAC,
supra note 2, Standard 13.12; Contracting, supra
note 2, Guidelines III-6, III-12; Assigned Counsel,
supra note 2, Standards 4.1, 4.1.2; ABA Counsel for
Private Parties, supra note 2, Standard 2.2(B)(iv).

III-12, III-23; ABA Counsel for Private Parties, supra
note 2, Standard 2.4(B)(i).
23 NSC, supra note 2, Guideline 3.4; ABA, supra
note 2, Standards 5-4.1, 5-4.3; Contracting, supra
note 2, Guideline III-10; Assigned Counsel, supra
note 2, Standard 4.7.1; Appellate, supra note 20
(Performance); ABA Counsel for Private Parties, supra
note 2, Standard 2.1(B)(iv). See NSC, supra note 2,
Guideline 4.1 (includes numerical staffing ratios,
e.g.: there must be one supervisor for every 10 attorneys, or one part-time supervisor for every 5 attorneys; there must be one investigator for every three
attorneys, and at least one investigator in every
defender office). Cf. NAC, supra note 2, Standards
13.7, 13.11 (chief defender salary should be at parity
with chief judge; staff attorneys at parity with private
bar).

19 Numerical caseload limits are specified in NAC
Standard 13.12 (maximum cases per year: 150
felonies, 400 misdemeanors, 200 juvenile, 200 mental health, or 25 appeals), and other national standards state that caseloads should “reflect” (NSC
Guideline 5.1) or “under no circumstances exceed”
(Contracting Guideline III-6) these numerical limits.
The workload demands of capital cases are unique:
the duty to investigate, prepare, and try both the
guilt/innocence and mitigation phases today requires
an average of almost 1,900 hours, and over 1,200
hours even where a case is resolved by guilty plea.
Federal Death Penalty Cases: Recommendations
Concerning the Cost and Quality of Defense
Representation (Judicial Conference of the United
States, 1998). See also ABA Guidelines for the
Appointment and Performance of Counsel in Death
Penalty Cases (1989) [hereinafter “Death Penalty”].
20 ABA, supra note 2, Standard 5-5.3; NSC, supra
note 2, Guideline 5.1; Standards and Evaluation
Design for Appellate Defender Offices (NLADA 1980)
[hereinafter “Appellate”], Standard 1-F.
21 Performance Guidelines, supra note 15,
Guidelines 1.2, 1.3(a); Death Penalty, supra note 19,
Guideline 5.1.
22 NSC, supra note 2, Guidelines 5.11, 5.12; ABA,
supra note 2, Standard 5-6.2; NAC, supra note 2,
Standard 13.1; Assigned Counsel, supra note 2,
Standard 2.6; Contracting, supra note 2, Guidelines

24 ABA, supra note 2, Standard 5-2.4; Assigned
Counsel, supra note 2, Standard 4.7.3.
25 NSC, supra note 2, Guideline 2.6; ABA, supra
note 2, Standards 5-3.1, 5-3.2, 5-3.3; Contracting,
supra note 2, Guidelines III-6, III-12, and passim.
26 ABA, supra note 2, Standard 5-3.3(b)(x);
Contracting, supra note 2, Guidelines III-8, III-9.
27 ABA Defense Function, supra note 15, Standard
4-1.2(d).
28 NAC, supra note 2, Standards 13.15, 13.16;
NSC, supra note 2, Guidelines 2.4(4), 5.6-5.8; ABA,
supra note 2, Standards 5-1.5; Model Act, supra note
2, § 10(e); Contracting, supra note 2, Guideline III17; Assigned Counsel, supra note 2, Standards 4.2,
4.3.1, 4.3.2, 4.4.1; NLADA Defender Training and
Development Standards (1997); ABA Counsel for
Private Parties, supra note 2, Standard 2.1(A).
29 NSC, supra note 2, Guidelines 5.4, 5.5;
Contracting, supra note 2, Guidelines III-16;
Assigned Counsel, supra note 2, Standard 4.4; ABA
Counsel for Private Parties, supra note 2, Standards
2.1 (A), 2.2; ABA Monitoring, supra note 3,
Standards 3.2, 3.3. Examples of performance standards applicable in conducting these reviews include
NLADA Performance Guidelines, ABA Defense
Function, and NLADA/ABA Death Penalty.

5

For More Information or To Order Publications, Contact Staff at:
American Bar Association, Division for Legal Services
321 N. Clark Street, 19th Floor
Chicago, Illinois 60610
(312) 988-5750
http://www.abalegalservices.org/sclaid

APPENDIX B
MOTION: PROPOSED RESOLUTION FOR TCDLA TO SUPPORT AN
INDEPENDENT STATE COUNSEL FOR OFFENDERS ESTABLISHED PURSUANT
TO ABA made by John Convery seconded by Nicole DeBorde – Motion Carries.
GUIDELINES
WHEREAS, the State Counsel for Offenders (SCFO) is designated to provide
representation for indigent inmates confined in the Texas Department of Criminal
Justice (TDCJ);
WHEREAS, SCFO representation includes, inter alia: trial defense representation to
indigent inmates indicated for alleged offenses occurring in the Texas prison system;
representation in appellate and habeas corpus matters; representation on time credit
issues; and, representation in proceedings for the civil commitment of sexually violent
predators;
WHEREAS, SCFO provides its services at substantial savings to the taxpayers of
Texas;
WHEREAS, SCFO purportedly comes under the direct supervision and control of the
Texas Board of Criminal Justice, who also sets the salaries for SCFO’s personnel;
WHEREAS, SCFO does not have a line item appropriation by the legislature, though
the original intent of the legislature in HB 80 (1990) was for it to have its own line item
with the State Comptroller;
WHEREAS, SCFO the Texas Board of Criminal Justice apportions money for SCFO
out of the funds appropriated by the legislature for TDCJ;
WHEREAS, SCFO must compete for its funding among other departments and
priorities within TDCJ, including the Office of Inspector General (the office that
investigates TDCJ Offenders who are indicted for crimes allegedly committed in TDCJ
and who, once indicted, are represented by SCFO attorneys);
WHEREAS, SCFO salary structure establishes defense lawyer pay significantly less
than prosecuting attorneys at the Special Prosecution Unit, the Attorney General’s
Office, and other State and County public defender offices;
WHEREAS, SCFO salary for attorneys not being on parity violates the ABA’s Ten
Principles of a Public Defense Delivery System and the National Right to Counsel
Committee’s recommendation;
WHEREAS, SCFO salary for non-supervising attorneys is set at three levels so an
attorney with three years of experience makes the same as an attorney with
substantially more years’ experience;
WHEREAS, the Texas Board of Criminal Justice has not provided for any promotions
beyond three years of experience, step increases, or increases in pay for SCFO
attorneys based on longevity, productivity, performance, or any other criteria;
WHEREAS, the result of the pay structure for attorneys at SCFO perpetuates
inadequate attorney salaries, precipitates attorney resignations, and destroys morale
within SCFO;
WHEREAS, the failure to adequately fund SCFO has resulted in unacceptable attrition
rates in all attorney sections, including excessive turnover rates in all sections;
WHEREAS, the turnover rate has created continued inadequate staffing rates that have
seriously and adversely impacted the ability to provide effective legal representation;
WHEREAS, the inability to attract quality attorneys has resulted in SCFO reducing the

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required qualifications for attorneys,
WHEREAS, SCFO has to hire attorneys for the criminal trial section with no criminal
trial experience to be assigned a full caseload of enhanced felony cases;
WHEREAS, SCFO has to hire attorneys for the general legal and immigration section
with no immigration law experience;
WHEREAS, SCFO has to hire attorneys for the appellate section who have no trial
experience or appellate experience;
WHEREAS, SCFO has to hire attorneys with no trial experience to represent inmates
accused of being sexually violent predators that face a potential life time confinement
in civil commitment;
WHEREAS, the trial section is appointed to represent clients accused of felony
offenses in counties across the State of Texas which requires driving in State vehicles
for hours to visit clients who are often reassigned to a new prison unit after the alleged
offense occurs;
WHEREAS, the trial section has to travel to the county of the offense (in many cases
hundreds of miles away) for scene visits and court appearances;
WHEREAS, SCFO will not provide the attorneys in the Civil Commitment Section
with funds for overnight travel to meet with clients in person, many of whom are
located well outside the Huntsville area;
WHEREAS, both the high attorney attrition rate and the office policy that the client is
represented by the office, not the assigned attorney, has resulted in horizontal
representation where many, if not most, inmates have different attorneys representing
them throughout their legal proceeding, which practice is discouraged by the American
Bar Association;
WHEREAS, inadequate salaries have been a continuing problem at SCFO for decades;
WHEREAS; the Texas Board of Criminal Justice not only hires and oversees the
Director of the SCFO, but also hires and oversees other TDCJ Department Directors,
including the Office of Inspector General, ;
WHEREAS, the Texas Board of Criminal Justice does not require any specific years of
experience representing criminal defendants or commitment to indigent representation;
WHEREAS, the Texas Board of Criminal Justice allows candidates from TDCJ and the
Parole Office to qualify for employment as the Director of SCFO;
WHEREAS, the Director for SCFO is considered a Division Director in TDCJ and
attends TDCJ Executive Committee Meetings sharing information about office policies,
caseload, case management, and other internal issues with TDCJ and the Texas Board
of Criminal Justice;
WHEREAS, the Director of SCFO has presented legal motions and orders for the court
to the TDCJ General Counsel Director for that directors approval before allowing them
to be filed in court;
WHEREAS, this level of comingling and comfort with executives in TDCJ allows the
Texas Board of Criminal Justice and TDCJ to interfere with attorney client
relationships and legal strategies;
WHEREAS, a SCFO attorney was forced to resign from SCFO in order to continue
representation of the indigent client after she was directed to uncommit herself from
representing the client and the Director of SCFO testified in State District Court that the
former SCFO attorney could provide more legal services for an indigent client in pro

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bono representation than SCFO attorneys could provide for the same client;
WHEREAS, the Office of Inspector General (OIG), who also conducts investigations
into criminal matters of SCFO clients indicted for criminal offenses in prison, has
investigated SCFO employees;
WHEREAS, OIG investigated and conducted the disciplinary hearing of a SCFO
attorney Section Chief and recommended termination, which ultimately resulted in the
attorney’s resignation;
WHEREAS, had the attorney who was disciplined by OIG attempted to defend his
representation he would have divulged attorney-client information to OIG, who had
also investigated the client for the alleged criminal offense that was the basis of the
attorney-client relationship;
WHEREAS, OIG personnel and investigator office spaces are adjacent to, and in the
same building as, SCFO (and were moved into those spaces during a prior investigation
of a SCFO employee);
WHEREAS, the ongoing investigation and the shared location with OIG Investigators
in SCFO work environment has an adverse impact on morale within SCFO;
WHEREAS, the location of OIG Investigators in office spaces adjacent to SCFO
creates at least an appearance that privileged attorney client information may be
jeopardized;
WHEREAS, OIG’s location adjacent to SCFO employees and privileged files, their
investigation of SCFO employees, and their disciplinary action against an SCFO
attorney, seriously undermines the client confidence in the sanctity of the attorney
client privilege;
WHEREAS, and considering the foregoing, there is not only an appearance of a
conflict of interest, but an actual conflict of interest in having the Texas Board of
Criminal Justice as the oversight organization for SCFO;
WHEREAS, there is a prosecutorial counterpart to SCFO criminal trial and civil
commitment sections, which counterpart is known as the Special Prosecution Unit
(SPU);
WHEREAS, SPU does not come under the supervision of the Board of Criminal
Justice, but is funded by a Governor’s Grant;
WHEREAS, the oversight of SPU rests with a Board of Texas Criminal District
Attorneys; and
WHEREAS, attorneys at SPU make a substantially higher salary than attorneys at
SCFO and are eligible for regular salary increases;
WHEREAS, attorney attrition rates at SPU are substantially less than at SCFO;
WHEREAS, all of the aforementioned has created a climate that is not conducive to
professional and zealous defense representation, client trust, or the appearance of
fairness;
WHEREAS, the structure and operations for SCFO does not meet the recommendations
of the American Bar Association’s Ten Principles of Public Defense Delivery System
and the best practices determined by the Texas Indigent Defense Commission;
WHEREAS, many of the aforementioned conditions have been ongoing for many
years; and,
WHERAS, TCDLA has previously approved a “Resolution to Support an Independent
State Counsel for Offenders Established Pursuant to ABA Guidelines, and to

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Encourage TCDLA Members Not to Accept Employment with State Counsel for
Offenders Until Such Office is Created;
BE IT THEREFORE RESOLVED THAT TCDLA, by and through its Board of
Directors, urges the reorganization of SCFO to be independent of the Texas Board of
Criminal Justice and TDCJ, pursuant to guidelines recommended by the American Bar
Association. BE IT FURTHER RESOLVED THAT after this reorganization, the
reorganized entity be directed by a person who has significant experience of at least ten
years of representing criminal defendants or in indigent representation
By Laws, Adam Kobs and Coby Waddill
Emmitt Harris recognized and congratulated Coby Waddill for being elected judge in Denton
County. The board gave applause.
Adam and Coby solicited any amendments or modifications to the current board. Adam
distributed copies and Melissa will send on the board listserve. Review the suggested changes.
All are in infancy stage. Timeline: board will need to vote in March for them to be presented to
membership within 75 days of the annual meeting.
1. Board of Directors: Each past president of the Association shall have the right to be heard
on any issue before the Board.
2. Nominations Committee: Each member shall be an attorney who is a current member of
TCDLA and has a minimum of five years of practice in criminal law.
3. Nominations Committee: member in good standing may seek election for the position
as an officer, other than President Secretary, director
Amicus, Angela Moore
Angela gave an update on the recent Amicus activities. Contact Angela if you have a blood draw
going in front of the Court of Criminal Appeals. Bring any amicus matter you have to the
committee. The committee has included Patricia Cummings as General Counsel for input. Any
issues the committee cannot agree on they will bring to the executive committee.
Strike Force, Nicole DeBorde
Strike force was busy this past quarter. The committee has gotten involved with Montgomery
County, they were unaware of how broken the system was. The committee will rewrite the
purpose and send to office so the website can be updated.
DWI Committee, Mark Thiessen
Thanked everyone that spoke on the Stuart Kinard Advanced DWI seminar thanked Michael
Gross, Adam Kobs and Mark Stevens for being course directors and doing a fantastic job. Mark
also thanked board members who came out and supported the seminar.
Mark thanked Patricia Cummings, Larry Boyd, Grant Scheiner, Doug Murphy, Gary Trichter,
and Troy McKinney regarding ALR Witness fee issues. The Intoxlyizer 9000 has come out and
will be used summer 2015.

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