Tips for Public Defenders & Indigent Defense

Practicing law is hard, regardless of who your client is. However, representing indigent clients adds an additional layer of complexity that increases the difficulty for both the client and the lawyer representing them. These complexities, combined with the additional challenges brought by COVID-19, necessitate that we pull all the resources we can to lessen our clients’ burden as much as possible.  To that end, here are five tips that attorneys who represent indigent clients can use to improve their overall situations. 

1. Electronic Monitoring Cost – CCP 17.43

Often on serious cases, a judge will order electronic monitoring, or, during a bond hearing, a judge might insist on electronic monitoring as a condition for lowering a bond. We all know that paying the deposit and fees on such a device can be a more significant hurdle for clients than paying the bond in the first place, especially when electronic monitoring costs are compounded with supervision fees and drug testing fees. However, the Code of Criminal Procedure provides an avenue to make this hurdle a little easier to clear. As always— with all things— your mileage may vary depending on your jurisdiction and the particular judges you practice in front of. 

CCP 17.43 allows for electronic monitoring fees to either be paid directly by the defendant or set as a reimbursement fee. See Tex. Code Crim. Proc. Art. 17.43(b). If you can successfully argue for the fee to be set as a reimbursement fee instead of being paid directly and are granted relief, your client can get out of jail and avoid the additional financial hardship.  Secondly, if the case ends up being dismissed, your client will likely avoid paying any of the reimbursement fees. However, if the case DOES end up pleading, CCP 42A.652(b) is what you should remember. This statute allows the judge to waive the reimbursement fees “if the judge determines that payment of the reimbursement fee would cause the defendant significant financial hardship.” See Tex. Code Crim. Proc Art. 42A.652(b). Of course, it is advantageous to you to provide as much documentation of your client’s financial difficulty as you can.  

2. Ability to pay inquiry – CCP 42.15

This is a particularly underutilized part of the indigent defense tool kit. CCP 42.15 indicates that a judge should be conducting an ability-to-pay inquiry in regards to fines and court fees, and it provides a way for fines and fees to be partially or completely waived. Under this statute, a judge can determine that your client has the resources to pay and can order them to: (1) pay the entire amount immediately; (2) pay the entire amount at a later date; or (3) pay the entire amount in installments. Conversely, the judge can also find that your client does NOT have the resources to pay and order the same conditions as (2) – (3) above (either in full or a partial amount). Additionally, the judge can order your client to satisfy what is owed via performing community service hours. Further, the judge can use a combination of all of these to allow your client pay what they owe. You can even go one step further and argue, utilizing CCP 42.15 in combination with CCP 43.091, for a full waiver of fines and court costs. 

3. Multiple Court Cost – CCP 102.073

If a court tries to double dip on you and attempts to collect more than one court cost fee, CCP 102.073 is your bread and butter. CCP 102.073 states that “in a single action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant.”  See Texas Code Crim. Proc. Art. 102.073. Of particular note in this statute is the fact that it states “criminal action” and not “criminal episode.” Some courts may conflate the two and try to assess multiple court costs when they should not. This is exceptionally important to pay attention to because the court’s inappropriate application of this statute could cost your client hundreds of dollars. 

4. Proper clothes for trial, via clothes closet or other means

Certainly, this is old hat for many of you, but some things bear repeating: the clothes our clients wear can change the jury’s perception of them. It’s the reason why we don’t try cases with our clients in orange jump suits. Dressing appropriately is important from the moment you walk into the courthouse for trial until the very end. Even when first entering the courthouse, perspective jurors begin sizing up your client. They are judged constantly: from the hallway, through voir dire, and then finally from the jury box. If your client is wearing a pair of ancient jeans and a t-shirt because that is all they can afford, the jury doesn’t understand this as a manifestation of your client’s poverty. Rather, they perceive your client’s clothing as a reflection of a person who doesn’t care enough about his situation to put on a polo and decent pair of shoes. A clothes closet is the best resource we defense attorneys can access to address this problem. If you have a Public Defender’s Office, see about partnering them with the local defense bar to put together something that everyone can use.

A clothes closet requires a dedicated space and not all places can pull this off effectively.  There are, however, other options for making sure your client is dressed appropriately. One option is to go to the judge and discuss the issue with them. Ask for a modest clothing allowance to put on an attorney payment voucher at the end of the trial. Finding some appropriate decent looking clothing at a thrift store can be done cheaply, and you will find many judges are more than willing to pay out a few bucks to reimburse you for this. Also, in jurisdictions where judges are a bit more on the tightfisted side, local defense bars can set aside a bit of money for a fund that helps support appropriate courtroom dress. However, you have to do it, there are options available. Your client showing up appropriately dressed can make the difference in getting a two-word verdict. 

5. And finally – fight…

Of course, we always fight for our clients, right?  But sometimes we lose track of the more subtle and important ways to fight for them.  It’s important to remind judges, ADAs, probation officers, and anyone else involved in the criminal justice system that programs like drug court, DWI court, pre-trial interventions, and deferred adjudication are not just meant for rich people. Low-income citizens should NEVER be priced out of a better resolution to their case. Fight by reminding people of this at every opportunity. No good is accomplished for anyone when our clients are set up for failure. Pushing back against post-conviction financial injustice is the only way we can prevent indigent clients from being set up for failure.

TCDLA
TCDLA
Mark Melchor
Mark Melchor
Mark Melchor is an Assistant Public Defender at the Fort Bend County Public Defender’s Office. He is the former Juvenile Probation Officer turned attorney. He is a graduate of South Texas College of Law Houston and serves as an executive board member for the Fort Bend County Criminal Defense Attorneys Association. He is most known for being a local grill master. He can be reached at .
J Ryan Crisler
J Ryan Crisler
J Ryan Crisler is a 2012 graduate of the University of Arkansas Little Rock, Bowen College of Law. He settled in Houston after spending some time teaching in Hengyang City, Hunan Province, China. He has been employed at the Public Defender’s Office in Fort Bend County since 2017. In his free time he enjoys properly made Mai Tais, spending time with his wife and her family in Arizona, and cats, of which they have four: Sassafras, Padraig, Fuxing, and Winry.
Rachel Crisler
Rachel Crisler

Mark Melchor is an Assistant Public Defender at the Fort Bend County Public Defender’s Office. He is the former Juvenile Probation Officer turned attorney. He is a graduate of South Texas College of Law Houston and serves as an executive board member for the Fort Bend County Criminal Defense Attorneys Association. He is most known for being a local grill master. He can be reached at .

J Ryan Crisler is a 2012 graduate of the University of Arkansas Little Rock, Bowen College of Law. He settled in Houston after spending some time teaching in Hengyang City, Hunan Province, China. He has been employed at the Public Defender’s Office in Fort Bend County since 2017. In his free time he enjoys properly made Mai Tais, spending time with his wife and her family in Arizona, and cats, of which they have four: Sassafras, Padraig, Fuxing, and Winry.

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