In my first Texas 2036 blog post, I talked about the criminal docket crisis in our courts and how the federal funds available to the Legislature during the most recent special session represented one way to address the problem. With the passage of SB 8 (87-3), the Legislature made a vital downpayment representing a first step towards meeting the needs of the Texas judiciary.
SB 8 included over $29.9 million to support the judiciary and make up for lost revenue during the pandemic. Specifically, Section 29 of the bill breaks down as follows:
- $10,000,000 for two items to specifically support the judiciary in working through the backlog; and
- $19,942,466 across three agencies to make up for some revenue losses due to the decreased collection of court fees.
This post covers what finally passed, and where that leaves Texas courts. We’ll walk through the backlog-specific items, address the revenue shortfall issues, and end on a discussion of outstanding issues and the bigger picture.
What’s In Section 29
| SB 8, Section 29 | Agency (Purpose) | Funding | Description |
|---|---|---|---|
| §29(a)(1) | Comptroller-Judiciary Section (Case Backlog) | $7,000,000 | The Comptroller’s Judiciary Section is responsible for paying the salaries of all state judges. The funding will help pay for visiting judges and support staff to address the backlog. |
| §29(a)(2)(A) | Office of Court Administration (Case Backlog) | $3,000,000 | OCA is the resource agency for all the state courts and judges in Texas. This funding will go to IT support for certain virtual hearings to help elected judges clear the backlog. |
| §29(a)(2)(B) | OCA-Texas Indigent Defense Commission (Court-Fee Revenue Loss) | $13,942,466 | TIDC under OCA oversees counties and supports their appointed counsel programs (like public defenders, managed appointed counsel systems). This replaces lost revenue in support of its mission. |
| §29(a)(3) | Office of Capital and Forensic Writs (Court-Fee Revenue Loss) | $200,000 | OCFW is a smaller state-level public defender office that focuses on post-conviction litigation in certain death penalty and forensic science cases. Largely supported by court fees, this funding makes up for the lost revenue. |
| §29(a)(4) | Texas Commission on Law Enforcement (Court-Fee Revenue Loss) | $5,800,000 | TCOLE oversees Texas law enforcement agencies and issues peace officer licenses. Court fees being one of its revenue streams, this funding backfills that revenue loss. |
| TOTAL | $29,942,466 |
Case Backlog
The first item is an appropriation to the Judiciary Section of the Comptroller’s office, which is responsible for paying state judges, including those former and retired judges who elect to be available for assignment to certain kinds of cases as “visiting judges.” SB 8 sends $7,000,000 to the Comptroller to pay for salaries and support staff for more visiting judges so that local elected judges can focus on clearing out the backlog.
Through the second item of appropriation, The Office of Court Administration (OCA), receives $3,000,000 to fund IT support for certain virtual hearings in order to expedite those matters that don’t require in-person appearance. That way, a visiting judge may not have to travel to handle things like magistration.
While $10 million is less than the estimated funding needed to handle the significant judicial-officer time it will take to clear the backlog, this sort of “surge staffing” of courts across Texas is still unprecedented and a positive step.
Court-Fee Revenue Loss
State law requires every person convicted of an offense to pay set costs depending on the offense level. Every person convicted of a felony, for example, is required to pay $185, which is remitted to the Comptroller, and then distributed among 19 different funds and accounts according to a certain formula. To get a sense of the range of distributions, 0.1394% of collections go to a state account to support DNA testing, 0.3900% goes to a breath alcohol testing account, and 3.4418% goes to the Texas Commission on Law Enforcement (TCOLE). The largest share of the distribution is nearly 18% of all court fees which goes to something called the “Fair Defense Account.”
Why does this matter?
Over 75% of funding for the Fair Defense Account comes from court fees collected from criminal defendants, and this account is the sole source of funding for the Texas Indigent Defense Commission (TIDC). Those fees have declined by about 20% compared to 2019 due to the steep decline in case dispositions after the pandemic reduced the number of jury trials in 2020.
The vast majority of backlogged criminal cases involve a criminal defendant who has a constitutional right to an attorney, and TIDC has a crucial role to play in resolving the backlog by funding and supporting county public defender offices and appointed-counsel systems for defendants in criminal cases that can’t afford counsel. TIDC received $13,942,466 under SB 8 to support its mission and make up for revenue loss.
The remaining $6,000,000 is unrelated to the backlog, but makes up for some of the lost revenue between two agencies who receive funding from court fees.
- $5,800,000 to TCOLE; and
- $200,000 for the Office of Capital and Forensic Writs.
What Remains
There remains a gap between the $29.9 included in Section 29 of the bill and the over $111 million needed to resolve the criminal case backlog and back-fill some of the lost revenue from decreased court fees. Most of that difference is due to additional needs estimated by TIDC that were not in the final bill.
While $13.9 million accounts for the agency’s lost revenue due to the pandemic, an additional $63 million was estimated to adequately support public defenders and court-appointed counsel for all the cases with indigent defendants in the criminal docket backlog. Without this funding from the state, it will be up to local governments and nonprofit legal aid groups to pick up these costs. The Legislature can consider monitoring this and other issues related to the backlog during the interim, including how local governments might utilize their allotments of the $10.5 billion in federal funds they received directly from the U.S. Treasury under ARPA.
The Legislature’s decision to pay attention to the courts’ overburdened case dockets and take an initial step in solving it is significant. With the opportunity presented by ARPA and the billions of dollars available to the state, the message of Texas 2036 throughout the last special session was to identify concrete problems and solve them. Resolving the criminal docket problem deserves sustained attention from state and local leaders, but dedicating these funds as a down payment to support the judiciary will help Texans avoid more problems downstream.