Lawyers Look Out: Judge May Not Pay for Your Work
If you take court-appointed cases, you know how to turn in a voucher requesting funds for your work. How often do you feel the pay you receive is adequate compensation for your work?
The Texas Indigent Defense Commission, in its report on attorney caseloads, issued an opinion about reasonably effective hours for indigent cases, and even broke it down by offense level.2 For example, on a Class B misdemeanor, they recommend anywhere from 8.6 to 11.7 hours required for “reasonably effective counsel.” If you are not turning in vouchers for Class B misdemeanors at an average of 8.6–11.7 hours, you are either failing to track your hours, or providing ineffective assistance of counsel. This rate applies to clients in custody, too, of course.
Track Your Hours, For Real!
The first step in this “How To” is a strong urge to adequately track your hours. Civil defense attorneys track every minute of every day they work. Criminal indigent defense attorneys should be, too. It’s a required task that comes with the career we chose. And it’s as simple as starting an Excel file to track it. When you forget to document hours worked, we all suffer. Judges across the state have no idea how long it takes to effectively defend criminal indigent cases, and they try to demand we do it quicker and quicker. When judges push to pay less for indigent defense, we are urged to cut hours on our vouchers, meaning either work for free or give our clients ineffective work. Every hour missed or not adequately reported by the defense attorney further allows the entire indigent defense system to be degraded. As defense attorneys, we must give effective counsel, and we must effectively track the hours spent on that counsel.
Why would anyone underreport hours? Sometimes, we live and die by staying in a judge’s grace to receive appointments. If you report too many hours, the judge will slash them and cut your pay, and may avoid giving you future appointments. It is often advised for attorneys to find that balance between doing good work and not asking for too much money. But, in our current state of a degraded indigent defense system, the judges continue to squeeze us to balance their budgets. The result: our clients’ lives and our bottom lines suffer.
Every next step in this article depends on the comprehensive and adequate tracking of the hours we spend on indigent cases. So, one more suggestion to this point: As you track your hours, your private descriptions for tasks do not have to match what you turn into the judge. As you work and track an hour, make a complete note about what you did, who you talked to, and why you did it. Then, when you turn in your voucher to the judge, you can edit your descriptions to preserve confidentialities. If you are later required to further justify the hours spent, you’ve got more than adequate documentation.
When the Trial Judge Denies or Cuts Your Requested Fees
A unique appeal process exists when your fee requests are denied in part or whole. In October of this year, an interesting case highlighted this process, and the concurring opinion outlines the requirements.3 To start, a trial judge has 60 days after you turn in your voucher/request for fees to act on it.4 If s/he does not act, you treat it as if the judge denied all your funds, and move forward with the appeal process.
In the In re Perkins concurrence, three Court of Criminal Appeals judges suggest defense attorneys are required to obtain written findings about the denial of funds.5 The law states that the trial judge shall make these findings, but if they do not follow the law, the Court of Criminal Appeals apparently believes that defense attorneys are required to ensure the judge follows the law. Otherwise, the defense attorney will lose his appeal. The rational conclusion of this requirement is that it encourages judges to not follow the law. If they want to deny funds, they can simply fail to make written findings, giving the defense attorney whose funds are being denied yet another hurdle to overcome before being adequately compensated (another hurdle that must be overcome without compensation for that spent time, of course).
To ensure the judge makes written findings, the concurrence states a defense attorney must file “a written request that the required written findings be made. If, after such a request, the written findings still are not made, the judge is subject to a writ of mandamus that orders that written findings be made.”6 That writ is to be filed with the “presiding judge of the administrative judicial region, or by higher authority if the presiding judge fails to act.”7
Once—and if—the defense attorney successfully obtains the written findings, s/he must follow the statutorily created appeal process for the denial of funds. To appeal any denial or failure to act, you must first prepare a motion and file it with the trial court.8 You must obtain a certified copy of that motion and file it with the presiding judge of your administrative judicial region. That judge should have rules and procedures for this motion and how to file it with them.9
Once that motion has been filed, the trial judge is given an opportunity to modify the approved amount. If the trial judge does not modify, the presiding judge will issue a determination on whether your requested funds are to be paid. If the trial judge modifies and only approves partial payment of your request, the presiding judge will not make a decision on your motion unless you submit notice that you still desire to contest the remaining unpaid fees. You may request a hearing, and the presiding judge may conduct one. However, be warned, no basis for compensation for the hours worked to seek funds currently exists. So, preparation of this motion and any potential hearing are all expected to be done without compensation.10 In your Motion to Appeal Trial Court’s Disapproval of Requested Court Appointed Attorney’s Fee, it is advised to request written findings of fact from the presiding judge. It is not required they do so, and if not requested, you will likely not get any reason if the presiding judge denies your funds, even if the trial court failed to give reasons for denying your funds. Again, at this juncture, it is imperative you have and submit the most detailed documentation of your hours as possible, without compromising confidentialities and including detailed descriptions of the work performed.
If the presiding judge denies your compensation at this point, you can file a writ of mandamus with your court of appeals.11 If the court of appeals denies your funds, you can appeal the writ to the Court of Criminal Appeals.
Get Your Indigent Defense Fees in Ten “Easy” Steps!
Step 1: Adequately track your hours.
Step 2: Turn in vouchers/fee requests.
*Step 3: If denied or ignored, obtain written findings from the trial judge for reasons through a written request.
*Step 4: If denied or ignored, file a writ of mandamus to the presiding judge of your administrative judicial region asking the written findings be made.
*Step 5: If denied or ignored, appeal the writ to “higher authority.”
Step 6: Prepare a Motion to Appeal Trial Court’s Disapproval of Requested Court Appointed Attorney’s Fee (include required attachments from your Administrative Judicial Region’s rules).
Step 7: File the motion with the trial court and obtain a certified copy.
Step 8: File the certified copy with the presiding judge of your administrative judicial region.
Step 8.5: If the trial judge approves partial payment, you must provide the presiding judge notice that the partial payment did not resolve the issue, and you still wish to seek the full amount of requested fees.
Step 9: If funds are still denied, file a writ of mandamus to the court of appeals.
Step 10: If the writ is denied, appeal it to the CCA.
*New requirements, as suggested by In re Perkins concurrence.
Problems with the Current System
As one can see, this system is long, drawn-out, and complicated. Attorneys were involved, so that should be expected. However, more serious concerns with this system as it stands exist, and a few are worth mentioning anytime this system is discussed.
First, indigent defense compensation rates are inadequate from the start and discourage effective defense counsel. In Harris County, the fee schedule states a misdemeanor appointment pays $50–$90 an hour for court appearances. To be effective, defense attorneys must put in significant hours outside of court. Adequate investigation, consultation, and motion preparation all require time outside the courtroom to be prepared for each court setting. Often, this work is discouraged by adopted payment schedules. In Harris County, the misdemeanor out-of-court hourly rate is $25.00 an hour. Many rural counties in Texas have approved fee schedules that set out even lower rates. These rates are the plans that judges are supposed to follow. Unfortunately, when judges apply conceived discretion, as in the Perkins case, defense hours are often slashed and we are not even paid the low amounts the plans set out.
Second, courts often slash rates based on nothing. As we saw in Perkins, the trial judge, even throughout the appeals process, gave no rationale for her denial of fees, except that it was her opinion the fees were excessive. No basis for that opinion has ever been given. Judges control the budgets of their court. When money gets tight, as it often does, judges must look for places to squeeze. Unfortunately, an easy place to look is indigent defense funding. If judges can pressure a defense attorney into claiming fewer hours, working fewer hours, or just not appealing a partial denial of funds, their budget suddenly looks much better. Remember, these judges also control which defense attorneys receive appointments. It is all too easy to pressure an attorney to forego an appeal for funds, if they can feel more likely to receive appointments by staying in good favor with the judge. When a focus on budget brings that pressure to indigent defense, people’s lives are hurt and ineffective counsel is encouraged. Both the decision on compensation and the decision for which attorney to appoint should be removed from the judge’s table. Until that conflict of interest is resolved, injustice will continue, and the underpayment and non-payment of fees are just one example of that injustice.
Third, as briefly mentioned before, when a judge does deny a fee request, the time to remedy the situation is extremely lengthy and complicated. A defense attorney must spend many hours preparing the motions, filing, following up, etc. And now, Perkins suggests all onus of ensuring judges follow the law falls on the defense attorney! The defense attorney will not be paid for a single minute of that work. That takes more time away from other productive actions for often a solo practitioner. The true costs of this process get lost among all the different attorneys receiving appointments. But make no mistake, that cost is real and ultimately costs true justice.
Fourth, the decision in Perkins encourages trial judges to not follow the law. When they decide to cut an attorney’s hours, by law, they must give written findings for doing so. However, now, if a judge does not follow that law, the defense attorney is more likely to lose any appeal for his requested funds. That money will now more likely stay with the county, and help the judge with his budget. Court decisions should not encourage Texas judges to become ostriches with their heads in the ground, as much as some judges would like to play ignorant.
Fifth, and maybe most important, is the message this case sends about how Texas values indigent defense. Indigent defendants are usually the individuals in our society who struggle the most with mental health issues, unemployment, and addiction. They are the least, forgotten, and most vulnerable in our society. The appointed attorneys who represent these men and women are too often the last—or only—sign of hope in their lives. Each decision affecting this system makes a statement about how Texas should respond to this group of people. Unfortunately, perpetuating this system of conflicted judges, pay rates that discourage effective counsel, and nonpayment of fees to attorneys only pushes to keep our most vulnerable locked away forever.
When problems are pointed out, solutions should be sought. In this situation, the solution is very simple: Pay indigent defense attorneys for the hours they work!
1. In re Perkins, No. WR-85,009-01 (Tex. Crim. App. 2016)(J. Alcala dissenting). In the case highlighted in this article, Mr. Perkins was defending a capital case in which the state sought the death penalty. They didn’t get it.
2. Texas Indigent Defense Commission Guidelines for Indigent Defense Caseloads, January 2015: pages 1, 15–28.
3. In re Perkins, No. WR-85,009-01 (Tex. Crim. App. 2016).
4. Tex. Code Crim. Proc. Art. 26.05(c).
5. While this requirement does come from a concurrence, and was not published, Mr. Perkins in fact lost his appeal and this was the only reason offered by the court. Therefore, this author feels that if this step is not satisfied, you will lose opportunity for appellate review, making it, in fact, a true requirement now to be followed in all appeals of denial of funds.
6. In Re Perkins, No. WR-85,009-01 (Tex. Crim. App. 2016) (J. Johnson concurring).
8. Tex. Code Crim. Proc. Art. 26.05(c).
9. Your Administrative Judicial Region judge may be found at www.txcourts.gov/organizations/policy-funding/administrative-judicial-re... (last visited on November 27, 2016).
10. Given judges’ growing hubris in denying funds, rising budget concerns in Texas counties, the need for independence in this process, and the current underutilization of this increasingly complicated appeal process, attorneys could begin handling these appeals on a contingency basis on behalf of indigent defense attorneys.11. However, the Thirteenth District Court of Appeals decision suggests that writ relief is not proper because a separate appeals process is in place, and the trial judge’s award of attorney’s fees is discretionary and not ministerial. In re Perkins, No. 13-16-00001-CR (Tex. App.—Corpus Christi 2016). It is not clear whether appellate courts would view this differently when a defense attorney compelled the trial judge to make written findings. A direct appeal of the presiding judge’s decision may be a remedy worth exploring.