Courting disaster

The judges feel they were sandbagged by the amendments.

"It was not done in an underhanded, sneaky way," counters Pardue. He explains that last fall the judges lost their point man on legislative matters when Houston attorney Ray Speece died. "There's no way this would ever have gotten as far as it did if Ray Speece were alive," Pardue says.

What is clear is that most judges didn't discover the changes to the bill until June 1, after the Legislature had passed it. "I was down in Houston that Tuesday [June 1]," recalls McDowell. "And my office got a call from [a district judge], who was calling around about it." McDowell drove back from Houston the next morning, "working the car phone all the way." He arrived in time to attend a meeting the judges held June 3 at the Frank Crowley Courts Building. Among the attendees was Royce West. According to a number of judges, West expressed two concerns. First, "he felt no minorities were getting court appointments." Second, he felt "the indigents were not getting good lawyers."

These are quite different problems. In fiscal year 1998, Dallas County paid $8,351,969 to court-appointed attorneys to represent indigent defendants in misdemeanor, felony, and death penalty cases. But Mel Stepp, assistant county auditor, says that the county does not track what percentage of this figure goes to minority lawyers. A number of judges feel that the problem isn't that minorities don't receive appointments, but that qualified minority lawyers are just hard to find. According to the State Bar of Texas, of the 63,810 attorneys who were bar members on December 31, some 7,083 -- just over 11 percent -- identified themselves as racial or ethnic minorities. Hispanics were the largest group, constituting 5.5 percent of Bar membership, and African-Americans make up only 3.5 percent.

The second concern -- the quality of lawyers representing indigents -- has a direct relationship to funding. And it is here that S.B. 247 could actually have hurt the status quo. Commissioners courts are not courts at all, but the mechanism by which Texas counties allocate tax dollars. Their members are not required to be lawyers, much less judges, and usually aren't. (In Dallas County, three of the five commissioners are not lawyers.)

What they are, in many counties -- Dallas especially -- are budget-cutters. In fact, many of the fiercest turf wars between judges and county commissioners have involved fiscal issues. The most famous, and instructive, occurred more than a decade ago, when county commissioners attempted to limit what judges could pay their court reporters. The judges sued, and the Texas Supreme Court sided with them, ruling that the judges had the "inherent power" to govern affairs in their own courts.

Another such suit would have surely been forthcoming. "I can't imagine anything more fundamental than controlling the quality of the lawyers who appear in your court," McDowell says.

Naturally, McDowell and the other judges suspect a power-grab by commissioners. But the usual suspects among commissioners insist they had nothing like that in mind. They, too, had no idea that the changes were being made. "There's a certain amount of feuding I've done with the judges in the past," Dallas County Commissioner Jim Jackson says. "And they're never gonna believe this down at the courthouse, but this wasn't my doing. In fact, I wrote the governor a letter and told him this wasn't our bill. I did not even know the legislation had been passed."

Jackson didn't even bother sharpening his famous budget ax. "I don't know enough about [what the judges pay attorneys for indigent defendants] to know if I have any problem with it," he says. "They have a price list they say they go by. I don't know whether they do. I do know that some judges are actually performing a service; some actually pay less for court-appointed attorneys than it costs the public defenders' office per case."

Not that he was averse to the notion of cost cutting, had the opportunity come along. "I had thought that if we did get the authority, we'd leave the system in place but probably scrutinize the costs more."

For now, though, everyone is happy. Judges have promised to set up a committee to ensure more minority appointments, both in Dallas County and statewide. "The judges promised Royce they would address his concerns, and he said he was going to call the governor and ask him to veto it," McDowell says. "I believe he did."

Judges have their authority intact -- and proof of their political muscle. "We don't usually get militant about things," McDowell says. "But they really came together on this, and they rarely agree on anything -- except a pay raise."