Courts Are Not Revenue Centers

As foreshadowed recently, the COSCA Policy Paper for 2011, "Courts Are Not Revenue Centers," is now available online.  My thanks to the Policy & Liaison Committee of COSCA, and the always helpful and skilled staff of the National Center for State Courts.

When I became director of OCA in April 2005, we were in the middle of legislative session, and it was all about money, what a surprise. My small agency's part in the drama, accounting for the first several meetings I attended, was about legislation to require large jurisdictions to follow a model collection improvement program that OCA had devised for voluntary adoption. The program was aimed at collecting the myriad costs that are imposed on conviction of a criminal offense. Of course, the purpose of the legislation was to maximize state revenue, and I only learned later about the conversations behind the scenes, where the expected additional revenue was being earmarked for various purposes, some more appropriate than others. This was my introduction to the world of court costs and fees in our state, a topic that has necessarily become much more familiar over time, leading up to my keen interest in developing this newest Policy Paper (formerly "White Paper") for COSCA.

The paper has six parts, including an introduction, definitions and a conclusion, so I am going to focus here on the meaty middle three parts. Two of them are devoted to case law from the states, and I confess that is one thing that appealed to me about this topic; both chiefs and administrators share in this issue. The first of these, Part Three of the paper, addresses the open courts problem of creating too high a barrier to filing a case by imposing filing fees in civil cases, citing cases from Texas, Louisiana, Oklahoma, Alabama, Florida, Arizona and Illinois. As stated by my favorite court, the theme of that section is "If the right to obtain justice freely is to be a meaningful guarantee, it must preclude the legislature from raising general welfare through charges assessed to those who would utilize our courts."

Part Four addresses the corollary problem, a separation of powers problem, of heaping costs and surcharges upon those convicted. Cases from Wyoming, Michigan, Virginia, Arkansas and Missouri are added to the mix. Most courts agree that costs imposed must bear a reasonable relationship to the expenses of prosecution, but courts vary widely in their application of this test.

In Part Five, we have refined and reasserted as principles a set of standards governing court costs and fees, ostensible standards that were adopted by COSCA thirty years ago. In your handout, the last page is a restatement of just those seven standards, couched as statements of policy, so you can take a look if you haven't had a chance to digest the paper. A couple are uncontroversial or so clearly based on constitutional law that they are incontestable. Others you may find more challenging, particularly as you get into the specific history and system in a given state. The committee clearly acknowledges the tension between principles and the realities we all face, but offers the policy statements as guideposts to direct reasoned conversation and the balance of competing interests.

The bottom line: Courts are not revenue centers. That is the title of this year's policy paper, and it goes to the heart of the aspiration that the Policy and Liaison Committee espouses. Because people are compelled to use the courts on occasion, there is a strong pull toward a user fee mentality, and we all feel it. But there are several problems that flow from viewing the courts as revenue centers. The three major ones are unfathomable complexity, unfair financial burdens on those unable to meet them, and inappropriate, even unconstitutional, fund allocation.

I first experienced the unfathomable complexity of the Texas regime back in 2005. That's when I learned that one of my lawyers, Ted Wood, understands the system and publishes guides for clerks, available on Texas Courts Online under the topic "For Trial Courts." Take a look at the documents under Filing Fees and Costs, to get an idea of one state's complexity.

But here in Texas I get the sense that the complexity is less of a concern to legislators than the growing impact on those who pay, and the growing sense that these are taxes by another name. Last session we tried to save indigent defense and legal services with new court costs and fees, and were rejected on that basis.

What I propose is to take this paper to our Judicial Council, and begin to formulate a new cost and fee system, built from the ground up. I want to focus on the clearly legitimate court funds that are fed by costs and fees, and work our way out in both directions from there. See what fees feed into those funds and simplify their structure and administration. And, see what court services are funded, and what else is funded with court revenue, to see if we can provoke a consensus on finding other money to take care of the executive branch programs that currently feed off the courts.

Last session I told the appropriations committee that the courts in Texas generate $450 million for the state, and the state spends $300 million on the courts. Next session I hope we can bring those numbers into a better alignment, but without tying the courts to revenue they generate. It is a difficult and dicey proposition, but as our paper advocates, state court leaders should each try to take on this problem in our respective states.

Terms of Court and Grand Juries - Correction

The bad news is, whoops. The good news is, I have been advised that a pre-existing statute in our large garden of laws of court should cover the concern raised in my previous post:

Govt Code Sec. 24.018. CERTAIN EFFECT OF DISTRICT REORGANIZATION. If the counties that compose a judicial district or the time or place for holding terms of a district court are changed by law:

(1) the process and writs issued from the district court and made returnable to a term of court fixed by the law at the time of the issuance are returnable to the next term of the court as fixed by the amended law and are as legal and valid as if they were made returnable to the term of the court as fixed by the amended law;

(2) the grand and petit jurors selected or drawn under the prior law in any county in the judicial district are lawfully selected or drawn for the next term of the district court of the county as fixed by the amended law; and

(3) the obligees in all appearance bonds and recognizances taken in and for the district court and the witnesses summoned to appear before the district court under the prior law are required to appear at the next term of the court as fixed by the amended law.

Terms of Court and Grand Juries

Judges of Texas, please take note, this is an issue that you may not be aware of and it is important!

HB 79, the Court Reorganization bill from the First Called Session, contains a provision (Sec. 3.03 of the bill) establishing two terms of court each year in every district court in the state. The first term of court begins on the first Monday in January. The second term of court begins on the first Monday in July. Each term of court continues until the day on which the succeeding term of court begins.


The provision – codified as Government Code, Section 24.012 – becomes effective January 1, 2012. HB 79 does not address the transition from the system of terms of court under current law to the new terms of court.

Under current law, different district courts have different terms of court. The terms of court in a particular district court are established by the statute creating the court. For example, the 174th District Court of Harris County has four terms of court each year. See Texas Government Code, Section 24.267. Those terms begin on the first Mondays in February, May, August, and November.

Section 24.012 states that the new general rule will control over the current specific provisions. Accordingly, all district courts will have the same two terms of court each year. We believe that all terms of court established under existing law will come to an end on Sunday, January 1. The new system of two terms of court each year will begin the next day.

Terms of court are significant with respect to grand juries. Grand juries are impaneled to serve for a particular term of court. The new law raises a question about grand juries that are in the middle of a current term of court on January 1. The specific question is whether such a grand jury retains the power to act until the end of the originally-scheduled end of that term.

We believe the answer is no. We believe that when the term of court ends, the power of the grand jury ends. The only exception would be an extension of the grand jury’s term under Article 19.07 of the Code of Criminal Procedure. Such an extension, however, can only be made to allow for the conclusion of an investigation of matters presently before the grand jury. The grand jury is not authorized to consider new matters.

COSCA White Papers

As I pointed out in 2010, my national group, the Conference of State Court Administrators (COSCA) issues a policy paper each year, known to many as the "COSCA White Paper." Working on racial disproportionality in child welfare and other systems has sensitized us to the freighted significance of such terminology. We now refer to it as a Policy Paper, for that is what we hope the Policy & Liaison committee will produce, a statement of provocative and helpful policy guidance for the leaders of the states' court systems. As the current chair of that committee, I hope to release the newest paper, "Courts Are Not Revenue Centers," in the very near future.  In the meantime I thought it would be helpful to share a compilation of the last decade-plus worth of very good papers:

Position Paper on Problem-Solving Courts (1999)

Self-Represented Litigation (2000)

Access to Court Records (2000)

State Courts' Responsibility to Address Issues of Racial and Ethnic Fairness (2001)

Effective Judicial Governance and Accountability (2001)

Court Leadership in Justice Information Sharing (2002)

Effective Management of Family Law Cases (2002)

State Judicial Branch Budgets in Times of Fiscal Crisis (2003)

Safety and Accountability: State Courts and Domestic Violence (2004)

The Emergence of E-Everything (2005)

Emergency Preparedness in the State Courts (2006)

White Paper on Court Interpretation: Fundamental to Access to Justice (2007)

Promoting a Culture of Accountability and Transparency: Court System Performance Measures (2008)

Digital Recording: Changing Times for Making the Record" (2009)

The Demographic Imperative: Guardianships and Conservatorships (2010)

Grant Award to Lone Star Legal Aid

Readers of this blog have seen a number of posts on civil access to justice, the self- or un-represented, and related topics, topics of sustained interest for me and many in my work world.  Today I am pleased to echo the announcement that Lone Star Legal Aid, in partnership with the Texas Legal Services Center and OCA, received a grant award from the Legal Services Corporation's TIG (Technology Improvement Grant) program. As described in this excerpt from their press release on a total of $3.6 million in grants:

LSC-funded programs are overwhelmed with requests for civil legal assistance, in part because of the economy. Courts—especially housing and family courts—have seen an increase in the number of low-income individuals without a lawyer. Studies in several states have found that about 80 percent of the legal needs of low-income families go unmet.

The systems that LSC-funded programs use to conduct client intake—most often telephone hotlines and in-person interviews—are often swamped by requests for legal services, frustrating clients and programs. The new round of technology grants continue efforts to develop new, user-friendly online intake systems for clients who need alternatives that permit the filing of applications for legal assistance outside normal business hours. . . .

In an effort to help people who must navigate courts without a lawyer, Lone Star Legal Aid will undertake a project to merge Texas Law Help, which provides self-help forms, and Texas Courts Online, which offers information about the state court system. The project will create a one-stop, easy-to-understand information source and include Spanish and Vietnamese translations of legal forms.

This topic always reminds me of an excellent 2005 report that I've saved, called "Civil Legal Assistance for All Americans," by Jeanne Charn and Richard Zorza.  It has seemed to me that the full access vision they espouse should be a template for our work in Texas, with the Census bureau recently documenting the increase of people living in poverty in our state, from 4.26 million to 4.63 million.  Charn and Zorza advocate a full-access legal system with the following foundational principles:

Scope and Coverage of a Full-Access Legal Services System

• An expanded delivery system should serve moderate- as well as low-income people.
• The types of legal needs for which assistance will be provided should be defined as a matter of policy. Specific service priorities, within broad categories, should be determined locally.
• Consumers will be entitled to advice and assistance, but an attorney’s services should be available only when lawyers provide the highest-quality and most cost-effective response.

 Consumer Assurances and Responsibilities

• Consumers should have a choice of providers appropriate to meet covered needs.
• An expanded delivery system should be consumer-driven, clientcentered and holistic.
• An expanded delivery system should protect representation of unpopular claims and insulate funders from the appearance of interference with service to individual clients.
• Consumers should be responsible for copayments for many services as well as reimbursement of out-of-pocket costs related to service.

Provider Diversity and Innovation

• Courts and administrative agencies should reform their rules and processes and provide information and assistance in order to reduce, wherever possible, the need for full-service attorneys.
• The private bar should be the first resource for low- and moderate income people with legal needs.
• Private attorneys should have opportunities to provide service, on a paid basis, when they are a cost-effective and high-quality option.
• Paralegals should provide service in all areas permitted under existing rules. Policymakers and bar leaders should support expanded paralegal practice with appropriate quality assurances and consumer protections.
• Technology should be fully deployed to deliver assistance directly to consumers and as an integral part of the infrastructure of a full-access delivery system.

I hope that we can have a rational conversation here in Texas and pursue a vision that will provide justice for all.

Workers' Compensation

I realize the ABA is viewed as liberal in general and plaintiff-oriented in civil matters, so caveat emptor.  I am a member and I read their magazine, as well as the criminal justice section magazine, which, on another topic of interest in my world, has an article in the most recent issue on Eliminating Excessive Public Defender Workloads. 
The ABA Journal recently ran a pretty scathing article on the Texas Workers' Compensation System; here is a thematic sentence: 

[S]everal decades of tweaking—through legislation, policy and business practices mostly meant to target scams by physicians and medical services providers—have gone beyond simple reform. Critics of the system say it has become so hostile, so skewed toward delay and denial that lawyers, physicians and even legitimate claimants have been driven away.

This is a topic that I have been around, working in the legislature back in the late 1980s/early 1990s, and I know several of the people who were intimately involved in the machinations back then, but it has never been an area of actual understanding on my part.  (So I confess my ignorance.) But I found the article troubling and compelling, and if I were a legislator I might be stirred to attempted action.  But in my actual role, what interests me most is the removal of matters of dispute from the system that is contemplated by our three-branch system of government, the courts. Here is a chart from OCA data that succinctly tells that story.

Judicial Compensation

The reporting on the Texas Department of Transportation's new director's compensation prompts me to point out the stunning disparity between the numbers under discussion there and the compensation we pay to judges in particular (not to mention other public servants such as yours truly), and the Chief Justice in particular.  The prior director of TxDOT (an engineer) received $192,500 per year and the TxDOT board wants to pay the new gentleman (an MBA) $381,000, but according to today's Statesman, he will have to settle for only $292,500.  I hope that he will feel better knowing that the latter at least puts him one step closer to the top of the comparables list that the Judicial Compensation Commission published (based on the General Appropriations Act) as Table 10 in their most recent (2010) report, which has these figures for "Salaries of State Constitutional, Elected and Other High-Ranking Executive Office Holders":

Executive Director: Employees Retirement System $300,000

Executive Commissioner: Health and Human Services $210,000
Executive Director: Department of Transportation $192,500
Commissioner: Texas Education Agency $186,300
Executive Director: Department of Criminal Justice $186,300
Commissioner: Department of State Health Services $183,750
Executive Director: Department of Information Resources $175,000
Executive Director: Department of Public Safety $162,000
Executive Director: Texas Youth Commission $160,000
Comptroller of Public Accounts $150,000
Attorney General $150,000
Governor $150,000
Executive Director: Commission on Environmental Quality $145,200
Agriculture Commissioner $137,500
Commissioner of the General Land Office $137,500
Railroad Commissioner $137,500
Secretary of State $125,880

Average $169,966
Median $169,000

The Chief Justice of the Supreme Court of Texas, and the Presiding Judge of the Court of Criminal Appeals, are paid $152,500.  (The Commission's report recommended increasing that amount to $168,000 but of course there was no serious talk of judicial pay raises during the last session.)  Other Texas judges' salaries go down from there, except for some county court at law judges whose locally-supplemented pay puts them above their arguably higher-ranked district and appellate brethren. 

And for the record, after 26 years of state service as a lawyer, general counsel and now agency director, I make $130,000 and feel privileged to make that kind of money in this economy, get to do what I do, and work for Chief Justice Jefferson.

Capital Punishment

At the request of Senator Carona's staff, a few days ago I was privileged to meet with an international group, including members of parliament from Sri Lanka and Nepal. Inevitably, the conversation turned to capital punishment in Texas, and I told them that imposition of the death penalty has gone down fairly dramatically in recent years.  Later on I wanted to fact check myself and asked our amazing Judicial Information manager, Angela Garcia, to run this graph for me from our data.  

In addition to reassuring me that I told them correctly, one thing I find interesting about this graph is the fact that life without parole was not adopted until 2005 (S.B. 60 by Lucio), but the downward trend was well established well before then.  My other thought was, "how much of this trend is driven by Harris County?"  TDCJ's information shows that 106 of 308 offenders on death row are from Harris County. Here is what OCA data shows over time.

Finally, in direct comparison to the first chart, here is what our data shows for Harris County's choice of the death penalty versus other punishment in capital cases.

Leadership, Collaboration, and Data

In September I had the privilege of addressing the Annual Judicial Conference, on changes facing the judiciary. Two themes were the growing significance of litigants presenting special challenges - children, the unrepresented, the Limited English Proficient, the mentally impaired, the elderly, and so on; and the diminishing significance of tort litigation as part of the state court caseload. I suggested that judges embrace their growing role as gatekeepers to services and sorters of troubled humanity, and that they should expect, and be expected, to operate as problem-solving judges and not only in the traditional, adversarial mold.

A great resource for judges on how to facilitate positive change and achieve better outcomes, is "Building a Better Collaboration - Facilitating Change in the Court and Child Welfare System," an NCJFCJ Technical Assistance Bulletin, which is not available online to my knowledge. In addition to basics of child welfare law, the book goes through learning organizations ala Peter Senge; leadership in general and judicial leadership in particular; creating a collaborative, problem-solving culture; using effective meetings and communication; the importance of data and evaluation; and the strategic achievement of planning, effecting and sustaining change. It is a digestible and yet complete guide to what we know about moving groups of well-meaning humans through a deliberative and synergistic process of improvement.  For the Shared Solutions Summit and in general when pondering this work, I boil down the method into Leadership, [multidisciplinary] Collaboration, and Data. 

Race and Risk II

At the beginning of the month I introduced Donald Baumann on this topic of continuing interest, and have been in contact with him since then. Here is Donn's response to my post, setting out his view of the current state of the data.

"Over-representation comes from several sources and we have evidence for some of them. According to the latest National Incidence Study (NIS 4), African American families are more likely to maltreat their children under certain conditions. However, if you look closely at the Texas CPS data on substantiated maltreatment, controlling for poverty, single parenthood, young parents, number of children and other factors, a picture of racial bias emerges.

What we find is that even at lower levels of risk of future maltreatment (which includes prior reporting), workers are more likely to substantiate African Americans than Anglos. What this means is that both bias and maltreatment may play a part in all of this but no one knows what that part is. In our view, poverty is the key because it is viewed differently for African Americans than it is for Anglos and, as a result, the threshold for substantiation is lower for African Americans than Anglos. At present, however, no one knows what features of poverty are related to substantiated maltreatment and what are related to bias.

One major source of over-representation that we know about is the higher reporting rates for African Americans, relative to Anglos. This higher rate appears to move through what we refer to as the CPS Decision-Making Continuum from intake to service provision and placement of children into care. Thus, some of the higher rates of disproportionality results from reporting and that contribution to disproportionality continues to move through the system.

So why is there so much disproportionality at reporting? Some have argued that people who are low income are often under greater scrutiny through their contacts with social service programs, increased law enforcement in low-income neighborhoods, etc., so this likely increases reporting about these families - thus, we can't say with certainty whether "repeated contacts" are truly indicative of greater rates of maltreatment among African Americans or of unidentified maltreatment among other racial groups.

Others have argued from data such as infant mortality rates that the reporting rates appear similar to the fatality rates and, because the latter is not as subject to bias as reporting rates, the reporting rates are real.

Finally, we don't know much about the potential for reporting bias. It may be that, much like the substantiation decision, the decision to report contains some disparate features that are related to actual maltreatment and some that are related to bias.

Another source of over-representation is decision-making bias that contributes to the higher rates of placements into care for African American children relative to Anglos and the lower rates of reunification for African American children relative to Anglo children. Regarding the latter two sources (flow in and out of the system) we controlled for the same factors as above for substantiation and; in the case of reunification, drug abuse and inadequate housing are additional factors that are controlled for.

Our findings are similar to those with regard to substantiation. What this means is that both underlying risk of maltreatment and racial bias play a part in how cases flow in and out of the CPS system of care and disproportionality is the result."

Collection Improvement - and Job Postings

Collection of court costs is an important reflection of respect for the rule of law, and an important revenue source for many programs, and I have written briefly on the topic previously.  We describe OCA's collection improvement program in the Texas Administrative Code (1 TAC 175.1) thus:

The OCA Collection Improvement Program applies to criminal cases in which the defendant agrees to or is required to pay all court costs, fees, and fines under a payment plan rather than when they are assessed and payment is requested. Although the program can be utilized by a judge in virtually every criminal case to effectuate the judge’s financial orders, it is not designed to influence the judicial determination of whether to order payment of costs, fees and fines, or otherwise to affect the sentencing or other disposition decision that is within the judge’s discretion. The program is simply designed to improve the collection of court costs, fees and fines that have been imposed, while helping defendants satisfy their obligations. The program is not intended to conflict with or undermine the provision to defendants of full procedural and substantive rights under the constitution and laws of this state and of the United States.

For the full text of the existing rule, and considerably more information about the program, visit the website.  With a few new counties entering the program due to the 2010 census, we want to make sure that folks are aware of the program, but also that local officials realize two things:

1. I have the authority to grant a waiver to a county for whom the program is actually not cost effective, and am willing to talk through what that computation might look like, and grant a waiver(s) if justified.


2. We have spelled out the program in great detail through the Administrative Code, and the APA says you can petition an agency for the revision of rules, but no one has requested revisions. Stay tuned for the possibility of refinements that we propose, and an opportunity to comment on those or upon the rules otherwise.

Finally, it is important to note that the Legislature has given OCA responsibility for auditing local compliance with this program (a function formerly assigned to the Comptroller).  We have an opening posted and have conducted interviews for a Managing Auditor, and will be posting additional openings for this program in the near future.

Small Claims Cases

Just about the only controversial feature of the major court reorganization bill, HB 79, 2nd Called Session (and SB 1717 during Regular Session) was the repeal of Chapter 28 Government Code, which designates justices of the peace as small claims courts, to be replaced with a single body of procedural requirements for civil cases in JP court, be they small claims or otherwise.  Article 5 of HB 79 is the operative portion, and this is the major new provision:

Sec. 27.060. SMALL CLAIMS. (a) A justice court shall conduct proceedings in a small claims case, as that term is defined by the supreme court, in accordance with rules of civil procedure promulgated by the supreme court to ensure the fair, expeditious, and inexpensive resolution of small claims cases.

(b) Except as provided by Subsection (c), rules of the supreme court must provide that:
(1) if both parties appear, the judge shall proceed to hear the case;
(2) formal pleadings other than the statement are not required;
(3) the judge shall hear the testimony of the parties and the witnesses that the parties produce and shall consider the other evidence offered;
(4) the hearing is informal, with the sole objective being to dispense speedy justice between the parties;
(5) discovery is limited to that considered appropriate and permitted by the judge; and
(6) the judge shall develop the facts of the case, and for that purpose may question a witness or party and may summon any party to appear as a witness as the judge considers necessary to a correct judgment and speedy disposition of the case.

(c) The rules of the supreme court must provide specific procedures for an action by:
(1) an assignee of a claim or other person seeking to bring an action on an assigned claim;
(2) a person primarily engaged in the business of lending money at interest; or
(3) a collection agency or collection agent.

(d) The rules adopted by the supreme court may not:
(1) require that a party in a case be represented by an attorney;
(2) be so complex that a reasonable person without legal training would have difficulty understanding or applying the rules; or
(3) require that discovery rules adopted under the Texas Rules of Civil Procedure or the Texas Rules of Evidence be applied except to the extent the justice of the peace hearing the case determines that the rules must be followed to ensure that the proceeding is fair to all parties.

(e) A committee established by the supreme court to recommend rules to be adopted under this section must include justices of the peace.

Last week the court issued an order creating the new task force, which looks like an excellent group.  It is my unofficial understanding that the first meeting will be held on October 26th in Austin.   

Texas Judicial Organization

I guess this will be an annual event since I made the same basic point about a year ago last May. Justice Willett's May 27, 2011 glib, scathing and comprehensive critique of our court "system" in his dissent in In re Coy Reece begins:

Intrepidity at the Alamo; entering the United States as the Republic of Texas; fifty-eight Texas-born recipients of the Medal of Honor; Bob Wills and George Strait; Nolan Ryan and Babe Didrikson Zaharias; five Super Bowl titles (sadly none this millennium); Dr Pepper and the “little creamery” in Brenham; deep-fried anything at the State Fair; a spirit of daring and rugged independence—the sources of Lone Star pride are innumerable.

Unfortunately, the juris-imprudent design of the Texas judiciary does not make the list. Today’s case is a byproduct of that recondite web, sparking a game of jurisdictional hot potato between us and our constitutional twin, the Court of Criminal Appeals. Truth be told—and this particular truth has been told repeatedly—the State’s entire Rube Goldberg-designed judicial “system” is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom.  . . .

As one might imagine, our bizarre structure has generated some fanciful factoids—practical problems and offbeat jurisdictional oddities that clog the everyday inner workings of our judiciary. Consider:

• Texas has at least nine different types of trial courts, “although that number does not even hint at the complexities of the constitutional provisions and statutes that delineate jurisdiction of those courts.”40 Whether a given trial court has jurisdiction is a five-step inquiry.41

• As Chief Justice Jefferson has pointed out: “Some counties share a multi-county district court, while others have multiple districts within the county. And some counties are part of more than one district, creating a shifting target for litigants who may not know which court’s rules prevail. Overlapping geographical jurisdiction creates confusion for litigants and increases the risk of conflicting rulings in a single area.”42

• At least one county court has no civil jurisdiction whatsoever.43

• Only eight percent of Texas’s justices of the peace are lawyers, even though they can hear cases involving multimillion-dollar claims.44

• A civil suit that would be tried before a twelve-person jury in district court would be tried before a six-person jury if filed in a county court.45

• District court vacancies are filled by appointment by the Governor46 but statutory county court vacancies are filled by appointment by the county commissioners, even though those courts frequently have jurisdiction over the same matters.47

• Whether there is a minimum monetary limit on the State’s district court jurisdiction actually remains an open question.48 While the Constitution has been amended to eliminate a monetary minimum, there is some argument that it is still implied.49

• Generally, jurisdictional limits on statutory county courts range widely by county—from $500 to $100,00050—and some such courts have no monetary limits at all.51

• “Appellate rights can vary depending on which court a case is filed in, even among trial courts with concurrent jurisdiction, and even when the same judge in the same courtroom presides over two distinct courts.”52

The legislature managed to improve upon one of those anomalies - the subject matter jurisdication of statutory county courts - with the passage of HB 79 by Rep. Tryon Lewis and Senator Robert Duncan, in the first called session this summer. Judge Gary Harger worked hard on the bill on behalf of my office and authored a nice summary in this month's Texas Bar Journal.

Race and Risk

Yesterday the Statesman reported on the continuing saga of "The seven [capital murder] cases identified by [then Attorney General] Cornyn [that] were all tainted by testimony by psychologist Walter Quijano, who regularly told juries that defendants were more likely to commit future criminal acts because they were black or Hispanic."  I remember well when this saga was much younger, I was with TDCJ, and I hosted a group of Argentinian students in a discussion of the American death penalty and Victor Saldano, on death row in Texas from Argentina and one of the seven cases. I showed them his page on the death row website and they said something to effect of "why do you even list his race? You Americans are totally hung up on race." That really stayed with me. 

And yes, we are indeed, but not without good cause at this point in our history, as Quijano's fairly recent testimony suggests.  I am among those who are hung up on racial disproportionality in criminal justice and all of the systems we design to intervene in people's lives from one angle or another. I find it ironic that we have realized it is illegitimate to use race as a proxy for risk in imposing the death penalty, but there is a raging debate in child welfare about whether race is legitimately correlated with higher risk so that we should actually expect disproportionality, or whether racisim in the system itself has a role that we need to be addressing.  My friend Donald Bauman, now retired from DFPS, recently provided me with the following abstract of some cutting-edge research he has conducted:

Findings indicate an important interaction between race, income, and risk of maltreatment. First, we found that poverty is associated with higher risk assessment scores.  We also found that African American families involved in both substantiated and unsubstantiated cases were assessed by caseworkers as having lower risk than White families.  Finally, when controlling for poverty, race is not a significant predictor of substantiated maltreatment.  However, when controlling for risk, poverty was not a significant predictor of substantiation, while race did emerge as a significant predictor.  This suggests that although income may influence risk assessment, it is not a factor that influences the threshold for the substantiation decision.  Rather, the findings suggest that there are racial differences in the risk threshold used by caseworkers in making the substantiation decision.  Specifically, the risk threshold for substantiation is higher for Whites than it is for African Americans.  One possible explanation for this (as also suggested by Rivaux et al., 2008 regarding the decision to place children in care) is the fundamental attribution error (Ross, 1977), a concept from social psychology that refers to the tendency to undervalue situational explanations for the observed behaviors of others and to overvalue personal explanations, such as traits and attitudes.  In the context of the substantiation decision, this would suggest that poverty (a situational factor) is underestimated in favor of race (a personal factor).  Thus, although poverty may be an important factor to address when assessing risk, caseworkers may be assessing the risk associated with poverty differentially for poor African American families than for poor White families.

In other words, race matters in that initial decision to intervene in the child abuse and neglect system.  In the other camp - though we need to find a way to bring these two views harmoniously together - is the work of Elizabeth Bartholet of Harvard, summarized this June by Chapin Hall at the University of Chicago.

This debate is a huge challenge faced by those of us who work to reduce disproportionality by facing the issue of race and racism head-on.

We believe that the evidence presented at this conference signals that it is time for reconsideration of certain past assumptions and conclusions. It indicates that generally there is a significant black/white maltreatment gap, one that roughly parallels the gap in official maltreatment reports. This evidence contradicts the belief that black children are included at high rates in the child welfare system because of racial bias. This is not to say that the evidence presented removes the possibility of bias. Bias may well exist in pockets of the system, operating in ways that lead black children to be either over- or underserved, and it is present more generally within the larger society. But we find no evidence that initiatives that emphasize reducing the high representation of black children will provide a path to more equitable services.

Task Force on Preservation of Court Records

As I have previously written, the Supreme Court has created a Task Force on preservation of court records, which has been doing really fine work. The Task Force Report has been issued in anticipation of a September 26, 2011 hearing (2:00-5:00) before the Supreme Court, in the courtroom. The Task Force has also issued the following publications:

• Preservation Tips (flyer)
• Care and Handling of Archival Materials
• Preservation of Archival Materials

District and county clerks in particular are encouraged to review the report and other materials, and the task force chair, Bill Kroger, has asked me to thank them for their help with this project.  Clerks are invited to contact Bill with any comments or feedback.

Supreme Court of Texas

Last Friday the Court made news with a decision upholding the "pole tax" (a fee per patron on strip clubs that serve alcohol), a decision I was glad to see because one beneficiary of this revenue source is basic civil legal services, a chronically underfunded program that is a high priority for people in the business of seeing that justice is provided to the citizens of Texas.  That decision came down on a day when the Court released 19 opinions, a very busy summer's work. The Court should be proud, with the start of a new term they carried over just four argued cases from last term, which is the lowest number since at least 1989 (we do not have statistics for causes carried over prior to 1989).

Shared Solutions Summit

This title refers to the first of what we hope will be many Texas Judicial Council convenings of local leaders in justice administration, to share promising practices, plan collaborative local strategies, analyze data and identify opportunities, and chart a collaborative and economical course for Texas courts.  The event is Jan. 8-10, 2012, in Austin, and interested judges should contact me. We still have a few slots open for local teams.

 

Attendees will be motivated and equipped to launch and sustain local justice system improvements in the context of criminal, child protection, mental health, and self-represented civil cases. They will:

• hear, observe and practice three themes, common to all such improvements - leadership, collaboration, and the use of data;
• understand the basics of caseflow management as an organizing concept for all court case types, and the benefits and basics of online, automated case processing;
• understand criminal justice examples of the use of data to identify problem areas in case processing and outcomes;
• have the opportunity to understand and apply data analysis to criminal justice or another of the other three case types;
• understand the current availability of a wide variety of cost-saving and performance-enhancing resources;
• collaborate and share ideas within and among their local teams;
• practice the use of a collaboration tool provided by OCA to sustain their effort and continue the linkages within and across counties.

The summit is open to twenty local teams of 4-6 participants, including a county judge or commissioner, district or county court at law judge, and district or county clerk; other participants, depending on the local focus, could include a district or county attorney, county CIO or administrator, court administrator or coordinator, chief probation officer or pretrial services officer, domestic relations or child welfare staff, CASA, local bar representative, or legal services provider.

 

Procedural Fairness

This phrase came to prominence in the court world with the work of Judges Kevin Burke and Steve Leben, as set out in their very worthwhile 2007 "white paper" for the American Judges Association. They use a framework from psychology professor Tom Tyler, who suggests that there are four basic expectations that encompass procedural fairness:

• Voice: the ability to participate in the case by expressing their viewpoint;
• Neutrality: consistently applied legal principles, unbiased decision makers, and a “transparency” about how decisions are made;
• Respectful treatment: individuals are treated with dignity and their rights are obviously protected;
• Trustworthy authorities: authorities are benevolent, caring, and sincerely trying to help the litigants—this trust is garnered by listening to individuals and by explaining or justifying decisions that address the litigants’ needs.

The Judicial Branch of California has recently published their own excellent report (written by the Center for Court Innovation) on this subject, with recommendations to make their  courts "understandable, accessible, respectful and trustworthy in the eyes of the people who use them."  I particularly like the report's emphasis on the myriad of opportunities to demonstrate and "signal that the justice system is capable of meting out fair and impartial justice," and the focus on key venues - traffic, small claims, family, and juvenile, and key users - self represented, limited English, and culturally diverse. I have long been a fan of the work of the California Administrative Office of the Courts, they have unbelievable resources compared to an office like ours in Texas, and very capable senior management; this report is another excellent resource they are sharing with the rest of us.

Courts are Different

Last week I had the pleasure of accompanying UT School of Law Dean Larry Sager to the Legislative Summit in San Antonio, the big annual conference by the National Conference of State Legislatures. (As readers know, I am very involved with the National Center for State Courts; well, back in "the day" when I was a legislative staffer [late 80s], I was very involved with NCSL, and last week I was very pleased to run into my NCSL mentor, Betty King, Secretary of the Texas Senate for 24 years.) 

Dean Sager spoke about the Supreme Court and the litigation over the Health Care Reform Act in the context of our federal constitutional system.  Very interesting, but what gratified me most was the background he provided to the audience of legislators, describing a couple of important distinguishing features of courts, in contrast to legislatures. He first pointed out a source of national pride, that most countries in the world have joined with the American concept of a written constitution, interpreted and applied by judges.  The powerful and distinguishing feature of courts in our common law system is that they explain the reasons for their decisions, in writing. This exercise entails looking at precedent - the way that similar cases were resolved in the past - and thinking about the precedent being set for the future. This process, and the mental exercise of reaching "reflective equilibrium," or reconciling the judge's general moral principles with their outcome based on specific factual circumstances, have the inherent effect of making judicial decisions more fair. The fact that in principle all litigants can appeal to a scheme of principles rather than to their own political strength has a democratizing effect.

International Law

Highlighting the work of Chief Justice Jefferson's former law clerk Martha Lackritz, I am pleased to point out a very interesting article she prepared on The Role of International Law in Texas Jurisprudence, which is now posted on our website.  The topic is very timely. As Martha points out in the opening paragraph:

The past two decades have witnessed the emergence of a new debate among legal scholars, namely, the propriety of citing international and foreign law in United States courts. The opposing viewpoints have been labeled "nationalist" and "transnationalist," arising largely from a series of cases in the U.S. Supreme Court that invoked international standards to aid in interpretations of the Constitution (accompanied by several denunciatory dissents from Justice Scalia). Generally speaking, nationalists advocate a complete disavowal of the use of international law as even persuasive authority in this country’s courts, while transnationalists embrace international law as an unavoidable component of a global society. Nationalists fear that any citation to international law "undermines self-governance by giving incentives to interest groups, domestic and foreign to frame international and foreign law with a view toward influencing our domestic law." Transnationalists counter that, like early cases from the U.S. Supreme Court, an examination of other countries’ approaches to novel issues, and the resulting consequences, provides practical insight into our own interpretation of similar issues.

And for those who may be concerned about the Texas angle on this topic, the report may be reassuring:

In more recent years, Texas courts tend to address foreign and international law in only three principal situations: (1) when interpreting an international treaty at issue; (2) when responding to death penalty appeals that invoke international human rights law (here, only to a limited extent); and (3) when deciding the choice of forum and the appropriate law to apply. Representative cases in each category demonstrate the way that the courts are directed to invoke foreign and international law.

One reason I was interested is the concern we keeping hearing about Sharia law, such as the discussion in an Adam Liptak piece in the New York Times from 2008, and another very recent article in the Times, which has reported a lot on this topic. The first of these articles mentions a 2003 case in the 2nd (Fort Worth) Court of Appeals in Texas, in which the parties signed an arbitration agreement that said any dispute would be sent to arbitration at the Texas Islamic Court.  The COA analyzed the agreement under Texas arbitration law and said the agreement was enforceable.  In another case, from 2008, the 14th (Houston) COA looked at an Islamic marriage certificate that a husband and wife had signed.  The court analyzed it under Texas family law to determine if it was a valid prenuptual agreement and concluded it was not (because it was signed after the couple was legally married).  (My thanks to Heather Holmes, staff attorney to Justice Phil Johnson, for helping me find these cases.)  Not surprising results, and not really an avalanche of Sharia law in our courts.

Addendum: Information on Sharia law bans from Gavel to Gavel, National Center for State Courts:
List and chart of 22 states with 49 active bills in 2011

General overview of 2010 efforts

Legislation

As we do after every session, my office has released a Judicial Council report identifying all of the recently passed bills that affect the courts.  It is not exciting reading but it is a really good resource if you are giving a presentation or just need to check on what happened.

Eyewitness Identification

I am in Atlanta with Chief Justice Jefferson, attending our annual meeting of the Conference of Chief Justices and the Conference of State Court Administrators. On Sunday night I walked to dinner with six colleagues, at a nearby restaurant here in Buckhead, a high-end retail area of town. Returning at about ten, chatting and walking, I noticed that we were passed on the sidewalk by a group of young men. I confess, I noticed they were African-American. The next thing I knew, one man rushed forward and grabbed the purse of one of my colleagues. She resisted mightily, shouted "no," and he pulled a pistol from his waistband. They pulled back and forth, about ten feet in front of me and most of the group. I was transfixed. I studied the gun, watching to see if he was going to point it at anyone, which he never did. I had a fleeting thought of dialing 911 on the phone in my pocket. I was alarmed and felt cowardly when one of my male colleagues rushed forward, and I thought he was going to get shot; he stopped short and nothing happened. I imagined having the gun turned on me. Somehow another female colleague suddenly sat down, I think the same one man tried to grab her purse too and pulled her off balance. But as quickly as it had started, it ended, the gun wielder gave up, said "step off," and began walking quickly away. His three cohorts were left behind, very close to where I was standing, sort of cowering beside a big retail sign; it was almost comical, one raised his hands and said "we don't have guns, we're not with him," as we gathered ourselves and began walking quickly back to the hotel, shaken but unhurt. The women who had been actually assaulted were later interviewed by the police, but I was not. Had I been, my information would have been quite useless, in spite of the singularity and vividness of those few moments. I could not recreate anything more than a generic description of any of the four young men, nor describe their clothes. I think I could've picked out the gun if there was such a thing as a gun lineup, but that is about it. I learned later that my colleagues and I did not even agree on the number of young men.

Courts and Kids

Back in October I noted the kick-off meeting for the Supreme Court Children's Commission - Education Committee.  That group and its many components and staff have been working away at the educational challenges faced by foster kids, and I enjoyed an update on that work today; a lot is happening both in Texas and nationally to improve the way these different systems interact with each other so that the kids can be kept safe, but also receive the education they need and are entitled to.  For example, in early November, the federal Department of Education and the Administration for Children and Families are co-hosting an event that will highlight and spur more collaboration between child welfare, education and the courts. 
Here in Texas, Chief Justice Jefferson's 2011 State of the Judiciary address has helped keep me focused on issues of juvenile justice. We memorialized his interest in these topics for the 82nd Legislature on a Children's Commission webpage, and I believe it is safe to say that his interest is starting to catch on with other chief justices around the country, as he enjoys the bully pulpit of chairing the Conference of Chief Justices this year.

One result of his interest is an upcoming event that readers will want to note. On the morning of July 19th, Chief Justice Jefferson and Judge Jeanne Meurer will host an event in the Supreme Court Courtroom, the presentation of a massive new report, by the Council of State Governments Justice Center. The report uses data only available in Texas to track the school disciplinary treatment of almost 1 million Texas middle school children, delving deeper into the relationships between suspension, expulsion, and involvement in the juvenile justice system. If you can't attend in person, as with the Court's oral arguments you can view a webcast, courtesy of St. Mary's University School of Law. 

The Unrepresented

The unrepresented, or self represented as we perhaps mis-name them, are a topic of high interest, as previously mentioned.  I was recently asked what we know about the volume of people in the courts attempting to handle their own legal problems (which all of us lawyers think is a very bad idea). Here is some of what I learned. 

We do not (yet) have good systemic data on the extent of pro se/self represented litigation in Texas, and the National Center for State Courts advises that no one else has it either (which still surprised me, as many states have more consolidated case management systems capable of gathering better data than we get); what NCSC says is “lots of anecdotal evidence but no consistent data.” Richard Zorza, a national consultant on these issues, agrees that the data is chaotic. In lieu of better data, he has previously cited the following information in the 2009 Future Trends in State Courts report that NCSC produces (see http://www.ncsconline.org/WC/Publications/Trends/Archives.html):

It is no surprise that the economic crisis is dramatically impacting both the numbers and proportion of self-represented litigants. In a 2009 survey conducted by the Self-Represented Litigation Network, between 50 and 60 percent of judges reported higher caseloads and a higher percentage of the self-represented as a result of the crisis (with many reporting both). Only 27 percent reported no impact, and many of those were criminal-court judges (see figure below). Some courts and judges are also seeing many more middle-class litigants coming to court without lawyers. Some of these litigants are reported to have higher expectations of how they will be treated and to be more prone to frustration with the situation and how courts are managing it.

Last week a judge estimated that pro se divorces run about 45% of all his divorce filings. I have recent data point from another Texas county that squarely supports this estimate.  So, applying that 45% estimate as a statewide assumption for that case type, there were approximately 61,000 pro se divorces in 2010.  If you make the same 45% assumption for all other family law matters, add another 112,000 to that.  (And by the way, divorces in Texas are declining per capita over the last 20 years, a 7% increase in filings over that time, despite 43% population growth.)

We do have one area of very good statewide data on pro se litigation, in small claims courts, which are pro se by definition. Filings are down some over time, and certainly down per capita.  Evictions may be a countervailing trend but we don’t have good data on pro se representation.  My counterparts in California advise that 90% of tenants go unrepresented in their courts.

Funding Crisis

It looks like the state budget will not cover fundamental legal needs identified by the leadership of the Judicial Branch.  During session I have refrained from using the blog for commentary on bills, except to explain the many bills that would raise criminal court costs. At this point - apparently too late - I am obliged to at least point out the irony of what has happened. 

Basic Civil Legal Services, the fund supporting the bare-bones infrastructure for fundamental legal services, ended up $20 million short. The Indigent Defense Fund, supporting county efforts to provide constitutionally required defense in criminal cases, ended up $8.6 million short.  Both programs already dramatically underserve their target populations due to budgetary decisions, including the continued large-scale redirection of revenue generated from the Judicial Branch.

The Legislative Budget Board reports that the Judicial Branch generated $185 million more in revenue (through criminal court costs and civil filing fees, much more the former), than the Legislature appropriated for the Judicial Branch, last biennium. We brought this information to the forefront in the appropriations process, and in an ideal world the response would have been to reallocate funds already generated to meet the critical needs identified by the leadership of the Judicial Branch. In the world we live in, holding our noses, we proposed several ways to raise the additional revenue those critical needs require, and it was only yesterday that we learned that the Legislature ultimately failed to adopt them - a $5 additional cost in criminal cases (added to $98 currently), and a $10 increase in civil filing fees (added to $5 or $10 current fees, depending on case type).

Caselaw suggests that civil fees cannot be redirected to support functions outside the courts, under the Open Courts doctrine.  The same result holds true in criminal cases under the Separation of Powers doctrine. For obvious reasons the court system and its individual actors cannot be expected to generate revenue to ensure their own existence.  But by the same token, the Legislature must address the mismatch between court revenue generated and, at a minimum, the critical needs identified by our leadership. Having watched the appropriations process closely on both sides during session, I am honestly impressed by the people who are making these difficult decisions.  But I am bitterly disappointed and worried about this particular decision.

eFiling Request for Information

OCA, on behalf of the Judicial Committee on Information Technology, has just released a request for information for a statewide eFiling system.  Here is an excerpt and below are links for the interested:

JCIT is, therefore, considering developing a partnership with a company with proven electronic filing experience to construct, deploy, and operate a public facing Internet electronic filing portal that integrates with court automation systems and comports with JCIT’s directives. JCIT is considering seeking a partner that can:
• Provide a robust Electronic Filing Manager that can support multiple, unique jurisdictions and integrate into the courts case management systems (that use the NIEM or OASIS Legal XML standard).
• Comply with national electronic filing standards (ECF) and any extensions required to support the initiative.
• Deploy and support an easy to use Internet-based portal that supports both free-form pleadings and form based filings. This includes ad hoc reporting for the filer to review previous submissions.
• Market the system to courts to increase participation.
• Provide support to users of the system in the form of documentation and help-desk (call center) support.
• Collect and distribute all fees using a PCI compliant method.
• Provide assistance to courts when needed to ensure that eFiling can be reconciled with financial and case management systems.
• Provide other value-added services to users (e.g. Intelligent/Assistive Forms, Public Access to Court Documents, Application Development for Specialized Filer Needs)

Link to the RFI: http://www.courts.state.tx.us/jcit/Efiling/pdf/eFilingRFI.pdf
Link to the page where we’ll post answers to any questions: http://www.courts.state.tx.us/jcit/Efiling/eFilingRFI.asp

Costs on Conviction

Ted Wood at OCA helps us all make sense of filing fees and court costs; he maintains a body of manuals for clerks on our page of Publications & Forms.  Below I am providing his guide to bills that would raise fees upon conviction of various offenses.
Speeding
A typical speeding conviction in municipal court results in $97.10 in mandatory court costs. In justice court the costs are a dollar more. These court costs do not include fines. (The amount of the fine is up to the judge or jury and can range from $1 to $200.)
Seven bills would serve to increase court costs in speeding cases. If all seven pass, court costs will rise $39 to $137.10 in most justice courts and $32 to $129.10 in most municipal courts:
HB 258 $15 increase in “state traffic fine” (actually a court cost) from $30 to $45.
2/3 of revenue to State’s General Fund; 1/3 to State for trauma and emergency medical services.
HB 331 $1 new cost in municipal courts. Money used for interpreter services, mental health and counseling, ADA modifications, attorney fees for indigent defendants, and judicial education.
HB 395 $5 increase in courthouse security fee (from $4 to $9) and municipal court building security fee ($3 to $8). Money used for court security. HB 777, SB 606, HB 904, & SB 1677 are similar.
HB 1261 $1 increase in municipal court technology fund (from $4 to $5).
HB 2344 $2 new cost in justice courts. money directed to county law enforcement technology fund.
SB 607 $7 new cost in counties with at least 100,000 population (except for Harris County which already can assess this cost). Counties choose whether to impose the cost – most probably will. Money stays with county - no limitations on use.
SB 726 $10 new cost in municipal and justice courts (in cases other than parking and pedestrian cases). Money directed to State “Judicial Access and Improvement Account” to support civil legal services for indigents, indigent defense, state court e-filing, and the state law library.
HB 2174 is an alternative to SB 726 that would direct $5 instead of $10 to the same places.

DWI
A typical Class B Misdemeanor DWI charge will set a person back $397.10 for court costs alone. A fine can be as much as $2,000 on top of the court costs. And a defendant must generally pay a “surcharge” of $1,000 per year for three years to keep his or her driver’s license. (Several bills have been filed that would eliminate the surcharges.)
Two bills would add $50 to DWI court costs. If both bills pass, the court costs for a DWI would increase from $397.10 to $447.10.
HB 395 has already been mentioned in the discussion of speeding cases above. The second bill is:
HB 933 $45 new court cost assessed in DWI and certain other intoxication cases. Money retained by county for certified breath alcohol testing program.

Felony Property Offenses (Arson, Burglary, Robbery, Theft)
Current court costs total $214. Any fine assessed is on top of the court costs.
Three bills would add $45 to the court costs for a new total of $259. The three bills include the previously-mentioned HB 395. The two other bills are:
HB 2065 $15 new court cost on property offenses such as arson, robbery, burglary, and theft. Money would be go to both the State and county for pretrial victim- offender mediation programs.
SB 1616 $25 new court cost on all felonies. Money would go to State’s “biological evidence preservation account.”

Drug Offenses
Court costs for a typical felony drug offense already total $294. This does not include the amount of any fine that may be assessed.
There are three bills that would nearly double the amount of the court costs in this type of case. The new court cost total would be $524, a $230 increase.
HB 395 has been discussed previously as has SB 1616.
SB 994 $200 new court cost on any felony drug offense. Money would be directed to the State for general law enforcement purposes.

Compelling Prostitution
Court costs for this offense are already quite high - $484. If four relevant bills pass, that amount will
climb $140 higher to $624, a 29% increase.
HB 395 and SB 1616 have been mentioned before. The following two bills have not yet been
mentioned:
HB 3746 $10 new court cost on crimes for which the defendant is required to register as a sex offender. Money goes to State for deposit in the “Internet Crimes Against Children Fund” which would be used to support the administration of the activities of three existing Internet Crimes Against Children task forces that are operated by the attorney general and other law enforcement entities. SB 1843 does the same thing.
HB 2014 $100 new court cost on offense of compelling prostitution or trafficking of persons. 50% of money would be retained by county for deposit in a “trafficking of persons and compelling prostitution prevention fund”; 50% of money to State for unspecified purposes]

Performance Guidelines for Non-Capital Criminal Defense Representation

I am happy to serve on the State Bar's Standing Committee on Legal Services to the Poor in Criminal Matters.  That committee has developed and just released a digestible but comprehensive guide to criminal practice in Texas state court from the time of initial representation in trial-level proceedings to the exhaustion of direct review before the Court of Criminal Appeals.  The guidelines seek to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of indigent defendants. The committee previously published Guidelines and Standards for Texas Capital Counsel and is on the verge of releasing a brochure for distribution statewide, to provide information to defendants considering representing themselves in misdemeanor criminal cases.

Disproportionality in Texas Systems

To start off the blogging in 2011, this chart speaks for itself, but a little more explanation. . . Racial disproportionality, specifically the impact of being African-American, pervades the child welfare, school discipline, juvenile justice, and criminal justice systems. For every bad outcome, from having a child removed from the home to being on death row, African Americans are represented significantly more than they are represented in our state population, and the exact reverse is true for Whites. 
Data Sources:

• State Population: Estimate of the Population by Age, Sex, and Race/Ethnicity for July 1, 2009 for State of Texas, Texas State Data Center, http://txsdc.utsa.edu/tpepp/2009ASREstimates/alldata.pdf.
• FY 2009 CPS Data: Texas Department of Family and Protective Services, Data Book 2009, http://www.dfps.state.tx.us/About/Data_Books_and_Annual_Reports/2009/default.asp.
• Students Expelled 2008–2009, Mandatory and Discretionary Expulsions 2007–2008: Texas’ School-to-Prison Pipeline: School Expulsion The Path from Lockout to Dropout, Texas Appleseed, 2010, http://www.texasappleseed.net/index.php?option=com_docman&task=doc_download&gid=380&Itemid.
• Juvenile Justice Data: The State of Juvenile Probation Activity in Texas—Calendar Year 2008, http://www.tjpc.state.tx.us/publications/reports/RPTSTAT2008.pdf, published July 2010.
• Prison/State Jail Population: TDCJ On Hand as of August 31, 2009: Texas Department of Criminal Justice, Fiscal Year 2009 Statistical Report, http://www.tdcj.state.tx.us/publications/executive/Statistical_Report_FY09.pdf.
• Felony Revocations: FY 2010 Statewide Felony Revocations to Texas Department of Criminal Justice, data received from Texas Department of Criminal Justice, December 27, 2010.
• Drug Arrests: Arrest Data by Race, 2009 Crime in Texas, http://www.txdps.state.tx.us/administration/crime_records/pages/crimestatistics.htm
• Death Row Offenders: Gender and Racial Statistics of Death Row Offenders, http://www.tdcj.state.tx.us/stat/racial.htm, last updated November 22, 2010.