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Texas Prisoners Receive Inadequate Legal Representation from State Agency

by Ed Lyon

In December 2017, a Texas State Bar committee issued a scathing report concerning the Texas Department of Criminal Justice (TDCJ), which oversees the State Counsel for Offenders (SCO) – an agency that provides legal representation for prisoners in certain cases.

SCO attorneys represent prisoners accused of committing crimes while incarcerated, those facing civil commitment proceedings, reviews and releases for those already civilly committed, immigration removal proceedings, prisoner exchange programs and occasional assistance in some post-conviction cases. The SCO is not allowed to assist in civil rights cases or those involving prison policies and procedures, fee-generating cases and certain other issues. The agency’s counterpart is the Special Prosecution Unit (SPU), which prosecutes prisoners accused of crimes committed while in custody and represents the state in civil commitment hearings.

Both agencies are overseen by the Texas Board of Criminal Justice (TBCJ), which also oversees the TDCJ’s sprawling prison system of more than 140,000 prisoners. The State Bar committee report found that funding for the SPU was as much as 40% higher than for the SCO, and 20% higher if the SPU’s juvenile offender division was excluded. The SPU, though funded and supervised by the TBCJ, is overseen by a board of prosecutors in counties where adult and juvenile facilities are located.

McLennan County District Attorney Abel Reyna, who recently lost his most recent election bid, chairs the SPU’s oversight board. Even though the SPU and SCO are separate agencies, Renya said they are aware of each others’ problems from working on cases together. KWTX reported that this became a crucial factor in the State Bar committee’s review when they sent out surveys to current and former SCO attorneys as well as SPU lawyers.

Reyna said SCO attorneys are paid less and lack the advantages that prosecutors enjoy. Referring to SCO lawyers, an SPU survey respondent stated, “You cannot be independent from the agency that controls the purse strings,” referring to the TDCJ and TBCJ, which oversee and fund the SCO. In response to the survey’s first question, which asked whether the SCO was allowed to operate as an independent agency, 84 percent of the respondents said it was not.

One SCO attorney reported contacting the TDCJ’s Parole Division to check on a client’s parole review status. The Texas Board of Pardons and Paroles’ general counsel then contacted the SCO’s director to relay the message “not to ever contact the parole board or parole division again.”

Another survey respondent stated, “I frequently found that [SCO] policies and rules either directly hampered basic representation [of prisoners] (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.”

Additionally, the survey found that 40 percent of respondents believed the SCO does not have enough independent discretion to adequately represent prisoners; 45.2 percent felt the agency does not have the ability to request help from the courts and State Bar when overloaded with cases; 29 percent believed SCO attorneys were not given adequate time and space to meet with incarcerated clients; 90.3 percent reported that SCO lawyers were paid less than their SPU counterparts; 61 percent believed there is not enough funding for the SCO to hire experts and other necessary legal services; and 71 percent felt the SCO was underfunded and inadequately resourced.

The State Bar committee report concluded with a recommendation that the SCO should be an independent agency with funding and resources equal to that of the SPU. The report suggested that, in lieu of this, the Texas Indigent Defense Commission could conduct its own evaluation of the SCO and provide a report to the Legislative Budget Board and Governor’s office by September 1, 2018.

While Reyna said there may need to be changes with respect to the SCU, he noted that “it will require action by the state legislature to change current statutes and policies.” 

Sources:;; “Review of the Operations of State Counsel for Offenders,” report by the State Bar of Texas Legal Services to the Poor in Criminal Matters Committee (December 8, 2017)

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