Getting Gideon Right

Key Findings

In almost every Texas county, eligibility standards are unrelated to the true costs of living, much less the high costs of hiring a lawyer. People who cannot afford basic necessities must prove that they are entitled to court-appointed counsel. And they must make that case before they can begin to defend themselves. In 2019, Texas’ 254 counties used 181 different indigent defense plans for providing appointed counsel in misdemeanor cases. Most plans use several different presumptions of indigence. Combined with the burden of proving their financial circumstances, these complex standards can further isolate vulnerable people from the constitutional protections they deserve.

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Statewide minimum standards would guarantee that no Texan stands alone in court because they are too poor to afford a defense attorney. The statewide standards should require counties to use financial metrics that accurately calculate the cost of living and the high cost of hiring a lawyer.

Incarcerated people cannot earn a meaningful income and people who qualify for welfare are already unable to meet their basic needs. There should be a rebuttable presumption that these people are entitled to court-appointed counsel.

The Federal Poverty Line is an outdated and inadequate measure. Counties should use measurement tools like the Living Wage Calculator—tools that are up-to-date and better estimate local costs of living.

Eligibility standards for appointed counsel should protect assets that are necessities of life. For example, courts should not consider a person’s sole means of transportation or their emergency savings as assets that can be weighed against their need for appointed counsel.

County plans should require an individualized assessment of need, weighing a person’s income and assets against their necessary expenses, like food, rent, and large medical bills. And because hiring a lawyer can completely change a person’s financial status, county plans must make that cost an essential part of a judge’s decision.

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Prof. Pamela Metzger

Dr. Andrew Davies