TPPF: Reclassify nonviolent misdemeanors to save county indigent defense costs

At the Texas Public Policy Foundation, Vikrant Reddy recently published a briefing paper recommending methods of reducing the burden of indigent defense costs for Texas counties, which he correctly noted have been "rising quickly." In 2011, reported Reddy, "Texas courts paid over $198 million (about $165 million was paid by counties, and $33 million was contributed by the state) to serve indigent defendants, a 108 percent increase (in inflation-adjusted terms) over the $95 million spent in 2001."

Most of his suggestions require criminal court judges and county commissioners to change local practices, but he suggested one item that's clearly within the Legislature's purview and which would provide immediate relief to counties groaning under the burden of rising indigent defense costs: Reclassifying more misdemeanors as fine-only offenses. Wrote Reddy:

Reclassification of Offenses

“Reclassification” refers to efforts to categorize some low-lev­el, but jailable, offenses so they are punishable only by a civil or criminal fine, not incarceration. Without the prospect of potential jail time, the right to counsel is not triggered, and a county may focus its indigent defense resources on higher-level offenders.

A Class C misdemeanor is the lowest-level offense in the Tex­as Penal Code; a Class B misdemeanor is the second-lowest. Class C misdemeanors are punishable only by fines, at most of $500. Class B misdemeanors are considered slightly more se­vere. They are punishable, at most, by a fine of $2,000 and up to 180 days in county jail. The inclusion of possible jail time is significant because under Argersinger, it triggers the right to state-appointed counsel.

Class C offenders are not entitled to state-appointed counsel. Class C offenses include gambling, minor in possession of alcohol (MIP), the misuse of laser pointers, criminal mis­chief with less than $50 damage, and theft of less than $50. A Class C offense is an act which the state may consider anti-social and which it may have an interest in restricting, but it is not an activity for which incarceration is thought to be neces­sary. A person can only be incarcerated for a Class C offense if a peace officer decides it is necessary to make an arrest rather than issue a citation (an arrest is only prohibited for speeding and an open container of alcohol) or if the defendant does not appear in court or pay the fine, in which case a warrant is is­sued.

Class B misdemeanors are different. The category includes such crimes as driving while intoxicated, inciting a riot, and making terroristic threats. All of these offenses involve the potential for significant violence and bodily harm, and it is appropriate to punish them with the threat of incarcera­tion. There are other Class B offenses, however, which do not include a dimension of violence. Making silent calls to 911 and the possession of two ounces or less of marijuana are examples. These may be anti-social behaviors which the state has a legitimate role in restricting and sanctioning, but they are not behaviors for which the threat of incarceration, even for a brief period, is necessary.

Even certain Class A misdemeanors (punishable by up to one year in county jail and/or a fine not to exceed $4,000) are non-violent offenses for which jail time may be inappropriate. Vi­olation of any rule of an occupational licensing agency and the promotion of gambling are offenses which might fall into this category.

Also, the offense thresholds for several Class B misdemeanors are often outdated and burden counties with unnecessary in­digent defense costs. An offender who is accused of stealing $60.00 is guilty of a Class B misdemeanor (the crime of theft of $51-$500), and because the offense is punishable with possible incarceration, he is entitled to state-appointed counsel. Had the offender been accused of stealing $50.00, the offense would have been a Class C misdemeanor, and the right to counsel would not have been triggered. Theft of $60.00 may have been reason­ably deemed a jailable offense when the statute was enacted in 1991, but in the intervening years, inflation has grown by nearly 70 percent, and the offense threshold has not been commensu­rately increased.

Obviously, the state must draw a line between what constitutes a Class B misdemeanor and a Class C misdemeanor—and this line will necessarily be somewhat arbitrary. It is impor­tant, however, that the legislature periodically revisits offense thresholds and updates them to keep pace with inflation. In the 82nd Legislature, Rep. Roland Gutierrez proposed H.B. No. 1707, which would have updated the penal code to classify all theft below $100 as a Class C misdemeanor. The bill, had it passed, would have been a good start to easing the consider­able strain on Texas’s overburdened indigent defense system.