After Kelly Unterburger and his girlfriend were pulled over for speeding in 2011, a state trooper searched the car and found what was described in court documents as a bag dusted with white powder. Unterburger was arrested for possessing less than a gram of a controlled substance and brought before a North Texas court.
The U.S. Constitution says people too poor to afford a lawyer should be appointed one paid for by taxpayers. And Unterburger — who said he was wrongly accused — was told he would be. So he was surprised when, years later, a bill arrived saying he owed thousands of dollars in attorneys' fees.
“If I’d known they were going to charge me,” he said, “I would have spent more time screening lawyers.”
In Texas and across the country, defendants are sometimes asked to repay part or all of the costs of their court-appointed lawyer through a practice called recoupment. Texas counties recouped more than $11 million from poor defendants in 2016, 4.5 percent of the total amount spent on indigent defense statewide.
Critics argue the practice can seem “untoward, to say you’re given this [constitutional] right but we’re going to charge you for it,” said Beth Colgan, a professor at the University of California at Los Angeles School of Law. But proponents say it’s sound public policy and a way to tamp down on a ceiling-less mandate borne largely by local taxpayers.
Since 2001, when Texas drastically revamped its public defense system, the costs of assigning lawyers to poor defendants has skyrocketed, from $91.4 million to nearly $248 million in 2016. County coffers have paid the most. Last year, the state allotted around $32 million to indigent defense; counties together paid $216 million, 87 percent of the overall amount.
“Small, economically disadvantaged rural counties like Hill County, we have limited budgets, and we spend a significant amount of money on indigent defense,” said David Holmes, the county attorney there. It "is just and right to ask that if you offend the laws of the state or victimize citizens of this county – and the taxpayers of the county provide you with a lawyer that you don't have to pay for up front – if you at some point have the ability to do that, you ought to do it."
Depending on the court, defendants in Texas can be deemed indigent if their income is less than $49,200 for a family of four.
Some defendants are told at the outset of their case that they may be liable for their court-appointed lawyers' costs. But Unterburger says he wasn’t. He says he didn’t know what seemed like the guarantee of a free lawyer could be rescinded. And he was especially shocked when the bill came in 2014, and it said he owed nearly $10,000.
Policies differ from court to court
Data maintained by the Texas Indigent Defense Commission shows wild variation in how much money Texas counties recoup from poor defendants. Johnson County, where Unterburger was charged, recouped nearly 15 percent of the money it spent on indigent defense last year. According to the data, Andrews County made back nearly 70 percent of its public defense costs in 2016, while 51 others recouped nothing at all.
County-to-county discrepancies aren’t unique to Texas, Colgan said. Recoupment policies differ from court to court but are often part of a “package of economic sanctions” tied to a case’s resolution, she said. Lawyer’s fees are sometimes included in plea deals or listed as a line item alongside administrative court costs that defendants are asked to pay at sentencing.
Colgan, who has researched recoupment policies in different states, said some jurisdictions use a flat fee to make back lawyer’s fees, while “in other places, it’s targeted at the amount of expenses actually incurred.”
Before levying lawyer’s fees, the court is supposed to determine that a defendant can afford to pay them. Critics say that determination does not always happen in a formal way, and they worry defendants may waive their right to counsel if they think they’ll receive a bill for that representation later.
On average, attorneys appointed by Texas courts are paid $200 for a misdemeanor case and $600 for a non-capital felony, said Wesley Shackelford, the Texas Indigent Defense Commission’s interim executive director. Cases that go to trial, like Unterburger’s, can incur significantly higher costs.
With the help of an attorney at the Texas Fair Defense Project, Unterburger was able to have the nearly $10,000 bill dropped.
Unterburger spent about three years imprisoned as he took his case to trial, and then appealed the guilty verdict.
“I didn’t even know that’s a law," said Unterburger, who now does irrigation and landscaping work. "I worked really hard to stay up with everything,” including paying hundreds of dollars in probation fees.
“It doesn’t seem like it’d be fair," he said of the recoupment practice.
Emily Gerrick, the lawyer who assisted him, says she argued the court had made a mistake in ordering the $10,000 bill. But “for a lot of people they really aren’t able to challenge it, because they don’t have a lawyer to help them or the court is just going to refuse.”
Donnie Yandell, Caprock Regional Chief Public Defender, said counties' efforts to receive reimbursement for lawyers' costs are often fruitless.
“Judges tell you about [setting up] payment plans for these people,” said Yandell, who is based in Lubbock. “You don’t get any more money out of them.” Many of his clients “scrape by,” and “just don’t have the money to start out with.” He added, “You can’t get blood out of a turnip.”
A new state law
A state law that went into effect Sept. 1 extends the period during which defendants can be asked to repay their lawyer’s bill. While that window used to close at sentencing, defendants can now have their financial status re-evaluated at any point while they serve out their sentence. Whether in jail, prison or on probation, it’s a period that sometimes lasts years.
Shackelford says the law has “safeguards” to protect defendants’ due process rights. Judges must first provide defendants with written notice that they’re on the line for lawyer’s fees and offer them a chance to rebut with evidence their ability to pay.
The law was enacted in "an effort to protect the collateral victims of crime: that being the law-abiding, taxpaying citizens that are having to absorb all these costs when it was unnecessary," said Mark Pratt, the district attorney of Hill County, who weighed in on an early version of the legislation.
That rendering of the bill, filed in 2015, failed to pass. State Sen. Brian Birdwell, R-Granbury, authored the 2017 law.
Pratt says if a poor defendant later comes into funds — wins the lottery, say, or gets an inheritance — it makes sense from a public policy standpoint for that person to reimburse the county. The law allows for the reverse, too: If a defendant loses a job while on probation, their financial status can be re-evaluated so they pay less. Defendants can’t be asked to repay more than the county paid.
In a statement, Birdwell said the law was passed "with the simple intent of clarifying that a defendant's status as indigent can change over time throughout adjudication and serving a sentence." He added that it "gives judges additional discretion to protect both taxpayers and defendants during the duration of the judicial process."
Enough precautions have been taken “to ensure that this will be properly used to recover additional funds from those that are able to pay and it’s not used as any form of punishment for those that cannot,” said James Allison, general counsel for the County Judges and Commissioners Association of Texas. He doesn’t expect the statute will be heavily used and said counties are “not interested in wasting our time and resources pursuing people that can’t pay."
Allison said increased funding from the state for indigent defense is needed to alleviate the burden on counties. Across the country, Texas ranks among those that spend the least per capita on indigent defense – with most of the funds coming from counties, according to a 2008 National Legal Aid and Defender Association report and a 2010 American Bar Association report respectively.
“I think the idea behind it is a pretty good idea,” Yandell said of the new law. “I just don't know how well it's going to be implemented.”