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October 01, 2013

The State Bar of Texas Fifty Years after Gideon

by Buck Files

I was a third-year law student when the Supreme Court decided Gideon v. Wainwright. As I prepared for my bar examination, I reviewed Gideon and understood what it said; however, I did not understand what it meant. I had grown up in Small-Town America and had never known anyone who had been sent to the penitentiary or placed on probation or even charged with a criminal offense—other than a traffic violation. I had no concept of what it was to be indigent and to be a defendant in our criminal justice system without a lawyer or to be a lawyer representing an indigent defendant.

It was twenty-five years later when I was preparing for a presentation to an audience of paralegals and legal secretaries on the importance of Gideon that my blinders were taken off. I read pre-Gideon cases and was appalled at what I saw in them. In one such case, the defendant was indicted for the offense of theft. He was convicted after a jury trial during which he was without the assistance of counsel. He was sentenced to life in the Texas Department of Corrections. On appeal, he complained that the trial judge had failed to appoint counsel for him. The opinion of the Court of Criminal Appeals contains the following:

Appellant was not represented by counsel upon the trial of the case. He represented himself, cross-examined the State’s witnesses, conducted the direct examination of his witness, and testified in his own behalf. He denied having committed the primary offense charged. He admitted having been convicted of other felonies. He was a man forty-seven years of age at the time of the trial, married, and a painter by trade. There is no evidence as to the extent of his education. His cross-examination of the State’s witnesses and the conduct of his own defense evince an acquaintance with courtroom procedure and the conduct of a criminal trial. He was certainly no novice at being tried for and convicted for crime. He knew the effect of the application of the habitual criminal statute, and admitted his plea of guilty to some of the prior convictions was motivated by the fact that the State, under his plea, did not seek to apply that statute.

The record is silent as to why appellant represented himself upon the trial. There is no affirmative evidence that appellant waived the right of representation by counsel or that he made a request therefor, or that the trial court advised him as to his rights relative thereto. The record reflects merely that appellant represented himself upon the trial.

By motion for new trial, appellant, for the first time, contended that the failure of the trial court to appoint counsel to represent him upon the trial of the case or to require an express waiver of his right to counsel constituted a denial of due process under the Fourteenth Amendment to the Federal Constitution.

The statutes of this State require the appointment of counsel for an accused only when the charge is that of a capital felony. Art. 494, C.C.P.; Holton v. State, 143 Tex. Cr. R. 415, 158 S.W.2d 772, certiorari denied 316 U.S. 703, 62 S. Ct. 1311, 86 L.Ed. 1771.

Parsons v. State, 218 S.W.2d 202 (Tex. Cr. App. 1949).

The State Bar of Texas Concern with the Plight of the Indigent Defendant

The State Bar has acted to help the indigent defendant and the lawyer representing him or her through the following:

By providing the best in continuing legal education. The State Bar has been recognized nationally for its continuing legal education programs, both live presentations and webcasts. It is understood that an educated lawyer is better able to serve his client. Beginning in 1975, the State Bar has offered its Advanced Criminal Law Course each year. These courses are planned and presented by some of the outstanding judges, prosecutors and criminal defense lawyers of our State. Currently, the seminar lasts for four days and participants can receive twenty-three to twenty-six hours of CLE credit for their attendance. Over the last several years, a “Boot Camp” has been held on the day preceding the course and focuses on what a less-experienced lawyer needs to know to properly represent his or her client. There is an ineffective-assistance-of-counsel component at each of these courses. Any lawyer who attends these courses should be better prepared to represent his or her client whether retained or appointed.

By creating the State Bar Committee for Legal Services to the Poor in Criminal Matters. Over the last twenty years, this committee has collected information in an objective manner rather than relying upon apocryphal stories as it has attempted to identify problems and suggest solutions. Some twenty years ago, the committee surveyed judges, prosecutors, and criminal defense lawyers to determine whether indigent defendants were being properly served by our justice system. Over the years, they have continued this practice and brought people together to discuss issues and solutions; e.g.:

  • In 2000, they hosted a symposium on the State of Indigent Criminal Defense at the Texas Law Center. More than 180 individuals from Texas and across the nation gathered to discuss indigent criminal defense delivery systems.
  • In 2002, they co-sponsored with the Equal Justice Center and the Nation Legal Aid & Defender Association the Forum on Cost Effective Indigent Defense Systems in Texas.
  • In 2003, they co-sponsored the Insanity Defense Seminar with the Texas Society of Psychiatric Physicians, Texas Criminal Defense Lawyers Association, Texas District and County Attorneys Association, and the American Journal of Criminal Law.
  • In 2004, they co-sponsored the National Innocence Conference in Austin, Texas. The committee continued an active review of capital habeas practice. In response to several news reports, the Committee began studying the need for a Texas Innocence Commission.

They have also developed objective standards for lawyers representing defendants in capital and noncapital cases.

  • In 2006, the Legal Services to the Poor in Criminal Matters Committee formulated the Guidelines and Standards for Texas Capital Counsel. These were vetted by the judges of the Texas Court of Criminal Appeals and adopted by the State Bar Board of Directors in 2006. The objective of these Guidelines was to set forth a statewide standard of practice for the defense of capital cases in order to ensure high-quality legal representation for all persons facing the possible imposition or execution of a death sentence by any State of Texas jurisdiction.
  • In 2011, under the leadership of Jeff Blackburn, the current chair of the Legal Services to the Poor in Criminal Matters Committee, they formulated the Performance Guidelines for Non-Capital Criminal Defense Representation. These were vetted by the judges of the Texas Court of Criminal Appeals and adopted by the State Bar Board of Directors in 2011. The objectives of these Guidelines were to encourage defense attorneys to perform to a high standard of representation of indigent defendants and alert defense counsel to courses of action that may be necessary, advisable, or appropriate, and thereby to assist counsel in deciding upon the particular actions that must be taken in each case to provide the client the best representation possible.

By working with other entities to share existing research and further mutual goals. This has included, for example, working with members of the Task Force on Indigent Defense and members of the Texas Indigent Defense Commission, and also working with the task force created in 2002 by the Fair Defense Act to share existing research and further mutual goals.

By creating ad hoc committees or task forces. When an issue that needs addressing has arisen, the State Bar has, on occasion, created an ad hoc or task force to address the issue and make recommendations; e.g., when there were concerns raised about the quality of representation provided by appointed counsel in capital habeas cases, the State Bar in 2006 created an ad hoc Task Force on Habeas Counsel Training and Qualifications. The task force was made aware of recurring problems that undermine the integrity of capital habeas practice in the Texas courts. The following were identified by the task force as being recurring problems:

  • Some lawyers on the Court of Criminal Appeals’ appointment list have accepted appointments and then “farmed out” these cases to other lawyers who were not on the court’s approved appointment list.
  • Some lawyers with a history of serious disciplinary problems have, nevertheless, been appointed and have failed to carry out their obligations to their clients.
  • Some lawyers who have accepted appointments have admitted to being unqualified, inexperienced, and/or overburdened. Thus, they were unable to do the meaningful work required of them.
  • Some lawyers have filed petitions that were only two to four pages in length and raised no cognizable issue.
  • Some lawyers have filed petitions that clearly indicate that there has been a failure to investigate and present evidence outside of the trial record; rather, these lawyers have treated the state habeas proceeding as a second direct appeal.
  • Some petitions—or partial petitions—were cut and pasted verbatim from other petitions in other cases. These were done without any regard to the factual circumstances of the case at bar or the legal issues of the case.

By continuing to communicate and cooperate with those legislators who have an interest in the indigent defendant. The task force presented its recommendations to Senator Ellis, who was later successful in authoring legislation that created the Office of Capital Writs. Those recommendations were as follows:

  • That a State Public Defender Office be established to represent individuals seeking habeas relief in Texas death penalty cases. Except in those cases in which a conflict of interest arises, the lawyers in this office would have the responsibility for representing all indigent individuals seeking such habeas relief. The office should be headed by a chief counsel with a well-respected and recognized record of representing individuals in capital habeas proceedings.
  • That this office be supported with adequate funding that will allow the lawyers of the office to fully investigate all cases and to provide effective capital habeas representation to all of their clients.
  • That an appointment system be created to provide for the appointment of lawyers not employed by the State Public Defender Office to provide capital habeas representation in those cases in which a conflict of interest arises and the State Public Defender Office cannot participate.
  • That this appointment system be supported with adequate funding that will allow the appointed lawyers to fully investigate all cases to provide effective capital habeas representation to all of their clients without experiencing substantial financial losses.

By staying out of the way. There are other entities that train and equip lawyers to represent indigent defendants. The Texas Criminal Defense Lawyers Association is an example of such entity. Rather than duplicate funds and effort, the State Bar has had the good sense to applaud their efforts and stay out of their way.


I am the first criminal defense lawyer in thirty-five years to serve as the president of the State Bar of Texas. From personal experience, I am aware of the commitment of the State Bar to the indigent individuals who find themselves mired in our criminal justice system. I am certain that this commitment will continue in the future as it has in the past.

Buck Files is a shareholder in Bain, Files, Jarrett, Bain & Harrison, P.C. in Tyler, Texas. He is a charter member and former director of the Texas Criminal Defense Lawyers Association and was inducted into TCDLA’s Hall of Fame in 2011.