On the Defense

Internal feuds and investigations cripple the agency representing accused convicts

The concept seemed simple enough in 1989, when the legislature established an indigent defense service for convicts accused of prison crimes. But recent years have brought all-out feuds on a variety of fronts for the beleaguered State Counsel for Offenders office.

Rampant staff turnover, an investigation by the prison system, rebellions over funding, resignations, firings and conflict-of-interest allegations have rocked the agency. A growing revolt to give the office freedom from the Texas Department of Criminal Justice has now picked up two new allies: the criminal defense lawyers' associations for Texas and Houston.

Harris County's defense lawyers' group last week passed a four-page resolution that condemns the office's control by the prison system and recommends that attorneys avoid working for the State Counsel's office. This position comes as TDCJ continues a lengthy probe into operations of the office. That has fueled more concerns because the state office that investigates prison crimes is also investigating the agency responsible for defending inmates. Critics say that puts the system at odds with itself.

Former State Counsel attorney O'Neil: "We were controlled by TDCJ."
Scott Nowell
Former State Counsel attorney O'Neil: "We were controlled by TDCJ."

Carl Reynolds, the general counsel for TDCJ, concedes that "It's a hard fit. Everyone agrees the setup is not ideal." However, Reynolds says there's no conflict of interest.

"Having more separation is not an irrational idea," Reynolds adds. But he says that the legislature, which faces a shortfall of a few billion dollars this year, is unlikely to fund a totally independent state counsel office because of the financial advantages that go with keeping it under the prison system's budget control.

Attorney David O'Neil, a former director of the trial services division of State Counsel, disagrees with the impact of that arrangement on the agency's convict clients. "State Counsel's interest is diametrically opposed to TDCJ. They want to keep them in prison, and we were trying to get them out."

Unlike Texas, most states have public defender offices that provide required legal representation for needy convicts accused of committing crimes while incarcerated. Texas had traditionally relied on locally appointed attorneys, until the legislature decided it could save money by creating a division within the prison system to represent accused inmates.

By last year, the State Counsel for Offenders had a $3.1 million budget with 25 attorneys and 48 support employees to deal with inmates across the state. The two primary sections are trial services, which defends convicts in criminal matters, and legal services, which helps inmates in civil areas such as divorces and child custody.

Friction inside and outside the office began flaring openly by the late '90s. Critics largely blamed the basic structure -- having the prison system closely involved in the program to represent convicts against that same system. For example, TDCJ had a definite interest in obtaining convictions against inmates charged with assaulting guards, yet TDCJ also was responsible for key funding decisions on legal representation for those inmates.

State Counsel's operations are supposed to be independent of TDCJ, answerable only to the Texas Board of Criminal Justice, which oversees corrections in Texas. However, TDCJ has significant input on salaries and administrative practices. As O'Neil says, "The board is supposed to make decisions, but what happens is they go to TDCJ and ask them what to do. We were controlled by TDCJ."

O'Neil charges that the agency lacks the expertise or desire to provide proper funding and staffing. He says, "TDCJ will not allow that office to become effective."

O'Neil, an ex-marine officer, was instrumental in bringing the issues to a head in 1999. In several criminal cases, he and other State Counsel attorneys began filing motions contending that they could not represent inmates because of an inherent conflict of interest caused by TDCJ's influence over their office.

Texas courts ultimately upheld the relationship, although some trial judges in Bowie and Jefferson counties had found that TDCJ had created a conflict by failing to provide enough trial attorneys. The State Counsel's office was allowed to withdraw from those cases, and the inmates were represented by appointed attorneys.

The motions ended after TDCJ agreed to appoint a liaison to study the conflict issue, O'Neil says, although the acrimony had already begun. He'd subpoenaed TDCJ officials, who viewed the subpoenas as a slap in the face. The fallout led TDCJ to start an audit of the State Counsel's office.

Some critics viewed the conflict-of-interest arguments as an effort by the office to pressure the state into raising salaries for its attorneys. The audit by TDCJ ended with a recommendation that the lawyers' pay be raised -- but that all the attorneys in the office receive the same $42,000 salary, and with no provisions for raises.

That plan drew objections from O'Neil and then-director John Fant. "This salary structure is going to destroy that office," O'Neil told the prison system board.

TDCJ general counsel Reynolds notes that State Counsel attorneys got their raises -- they ranged from about $4,000 to $10,000 annually -- and that the audit and salary system were no different from that for the rest of TDCJ. "My office has the same pay structure," he explains.

O'Neil says salaries are the primary source of the discontent. "Imagine if you went into a hospital and said, 'Okay, every doctor is going to be paid the same: neurosurgeons with 20 years' experience the same as first-year interns.' How long do you think it would take for the good doctors to find another place to work?"

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