Proposed legislation would give Texas public defenders priority in capital murder cases

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Legislation working through both the Texas House and Senate would require judges to give public defender offices priority in defending capital murder cases.

The law already says public defenders must first be considered to represent people charged with other crimes.

The bill has statewide support from public defender offices and the Texas Indigent Defense Commission, but some defense attorneys who are often court appointed disagree.

They question whether public defenders provide the best defense for those who can’t afford to pay an attorney and face the most serious crimes.

Capital murder cases are the most high stakes legal matches in the justice system. It's life without parole, or death

“We give high quality representation on these cases. It’s very important to us. We care about our clients, as does everybody in this office, and we were still struggling to get appointments, so we wanted capital murders, in particular, included in the priority appointment statute,” said Dallas County Assistant Public Defender Christy Dean.

There are two systems of defense lawyers at work in Texas for indigents charged with crimes: Public defenders - about 25 counties have them - and court appointed attorneys - private practice criminal counselors who get assigned to cases by a judge.

Since 2015, judges have been required by law to give priority to public defenders in misdemeanor and felony cases.

Two bills in Austin would do the same for capital murder cases, requiring the court to give priority in appointing the public defender “to represent the defendant in the criminal proceedings, including a capital murder case."

Defense attorneys, like Lalon "Clipper" Peale, object.

“I think it’s wrong because they are not looking at the total representation of the individual,” Peale said.

Judge Tammy Kemp sent a letter to lawmakers opposing the bills, saying they "appear to violate the separation of powers provision of the constitution” and “propose to remove judicial discretion from judges.”

She also said that public defender offices “do not have to meet the same experience standards as those appointed by a judge."

“There’s not anyway we can - our office - can accept all the appointments. We’re certainly in no position, not was that ever our intention. We just wanted to have the priority statute expanded to include capital murder cases,” Dean added.

“This is about management. It’s about management in the system,” Dalals County Commissioner John Wiley Price said.

It’s not just about what happens in the court room when it comes to who defends capital murder cases.

Price says is also about managing the cost of that defense, a cost ultimately carried by taxpayers.

“Not only is it more cost effective, [but] you have a different - for the most part - experienced lawyer,” Price added.

Commissioner Price says the budget for the 100-plus person staff in the public defender office is $500,000 a year.

One capital defense with court appointed attorneys can cost the county that much, or more, Price adds.

Neither bill has made it to the floor of the House or Senate for a vote.