The number of attorneys and offices dedicated to criminal public defense in rural areas of the state is scarce — and a Texas policy commission is asking the Legislature for nearly $44 million to address the problem.
A June 2024 report by Texas A&M University’s Public Policy Research Institute in partnership with the Texas Indigent Defense Commission found the number of attorneys who represent at least one criminal defendant who is indigent — or low-income — was steadily declining between 2014 and 2022. That comes even as the number of some indigent defendants is on the rise.
Those defense attorney totals are especially low in rural counties with less than 100,000 people. The number of lawyers taking at least one indigent case in those counties has dropped 27% since 2014.
The institute surveyed judges, county commissioners, public defenders, private defense attorneys and others, more than 70% of which said they considered the availability of attorneys a significant concern in their jurisdiction.
“We’ve heard from different stakeholders that they do worry about reaching a level where they may not be able to appoint an attorney for a case simply because there’s just not an attorney available,” said George Naufal, an associate research scientist at the institute who worked on the study.
The U.S. Constitution, Texas Constitution and state law guarantee the right to an attorney for criminal defendants who can’t afford one. When that happens, a judge may appoint an attorney through the county’s public defender's office or find a private attorney who can take on the case, often with some sort of compensation.
The Texas Indigent Defense Commission monitors public defense and public defender’s offices, and it has initiatives to improve the practice of indigent defense throughout the state. The research into public defense needs in rural Texas counties came at the request of lawmakers during the 2023 legislative session, along with two years of planned funding for TIDC.
Some respondents were also concerned that the attorneys who do take indigent defense cases are older and likely approaching retirement. Not as many new or younger attorneys are taking on indigent defense cases, and those who do might not be experienced enough to handle them at an efficient pace.
That trend is especially concerning given the report shows the percentage of indigent felony cases has also gone up since 2014, said Scott Ehlers, director of TIDC.
“We need new lawyers coming into the work now if we are going to have attorneys who have that experience level in the next three, four, five-plus years to take on those increasing number of felony cases,” Ehler said.
As this year’s legislative session approaches, TIDC wants almost $9 million in general revenue to go toward incentivizing more law students and young attorneys to practice in rural Texas through internships, fellowships and a potential new state student loan repayment program for rural attorneys doing public defense work.
What motivates attorneys to take indigent criminal clients is often intangible, Texas A&M’s research showed. Those who do it said they feel a calling to public service, enjoy the work and can live a cheaper lifestyle compared to a major city like Dallas.
But the private attorneys also said in smaller towns, doing only one type of law just isn’t realistic. They have to take on cases across a variety of fields to make a living — hence doing public defense work to supplement their income.
“Honestly, the county where I live, you’re not going to make a living only on paying clients,” one interviewee said. “It’s a very poor county. They don’t have the money to hire you.”
Plus, the persisting stereotypes and challenging realities of rural life might be scaring legal talent away — things like a lack of public transportation or entertainment.
The research shows there are also many more attorneys feeling overburdened among those who represent indigent clients across multiple counties versus those who just practice within one. Within counties, the percentage of overburdened attorneys has remained below 2.5% since 2014.
Across counties, that percentage has increased steadily over the past 10 years, according to the report. In fiscal year 2022, 26.9% of those attorneys were considered overburdened.
The shortage of indigent defense attorneys and the too-high caseloads for those who practice have consequences for defendants both during pretrial detention and the actual outcome of the case. Sometimes that can increase the possibility of a defendant pleading guilty, Naufal said.
“There’s a lot in the literature that suggests that some of those outcomes are what to expect from overburdened attorneys,” he said. "Besides, obviously, mistakes."
The report recommends more funding for public defense as a major part of the solution to rural indigent defense challenges. TIDC is requesting $35 million from state lawmakers, mostly to fund new and expanded public defense offices across the one-third of Texas counties that don’t have one.
But the money would also help counties in need of extra funding, including offices in mid-size and urban counties.
Counties may have their own public defender’s offices or they might establish a regional office with surrounding counties. But there are 155 rural counties not being served by a single county or regional office, according to the report.
More than half of survey respondents said their counties don’t have a public defender’s office handling non-capital cases. Many of those in counties that do reported being satisfied with the work their office does.
But sustainably funding those offices still proves a challenge for counties, according to the report, along with software shortfalls, the lack of attorneys and a lack of social workers and others who can handle defendants dealing with mental illness.
“Some of the discussions we had with judges conveyed to us that judges would feel a lot more comfortable, in a way, to basically have a public defender office to support them with attorney appointment, that way it removes them from the burden of assigning attorneys and and following up and making sure the attorney is basically doing their job,” Naufal said.
State officials will spend the next roughly six months settling on a budget for the next biennium, fiscal years 2026 through 2027.
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