The 2008-2009 legislative session proved to be one of the most successful on record for access to justice issues. Faced with a looming budget shortfall, the Legislature took action and passed several funding measures to ensure both immediate and ongoing funding for civil legal services for poor Texans.  In addition to the funding measures, the Legislature also passed three bills meant to address current gaps in the justice system affecting poor and low income Texans.

Throughout the session the Texas Access to Justice Commission (Commission) endeavored to educate the public and the legislature on access to justice issues and to increase awareness of the funding crisis.  As part of this effort, the Commission hosted Access to Justice Day at the Texas Legislature in February.  The Commission was joined by State Bar leadership, members of the Texas Access to Justice Foundation, legal services providers and other access to justice stakeholders at the capitol to highlight legislative measures affecting access to justice. Representative Pete Gallego joined Supreme Court Justice Harriet O’Neill, Commission Chair James Sales and Texas Access to justice Foundation Chair Richard Tate for a press conference to emphasize the need for funding to ensure the continued provision of basic civil legal services to poor and low income Texans.

As a result of these efforts, six bills impacting access to justice in Texas were passed this session.

LEGAL SERVICES FUNDING

General Appropriation (SB1/HB1; Ogden/Pitts) – When the legislative session began in January, funding for civil legal services to the poor in Texas had plunged drastically. With Interest on Lawyer Trust Accounts (IOLTA) plummeting, the largest source of state revenue for civil legal services was projected to drop from $20.5 million in 2007 to a projected $1.5 million in 2009.  Faced with the possibility of a complete collapse, access to justice partners quickly developed strategies to preserve legal aid in Texas. Recognizing the devastating impact the funding crisis could have on access to justice, Chief Justice Wallace B. Jefferson, on behalf of the Supreme Court, urged the legislature to consider an appropriation in the amount of $37 million to address the shortfall. Several months and much hard work later, a $20 million biennium appropriation for civil legal services has become a reality, stemming a potential funding crisis.

Without this budget allocation, programs like the HBA’s Houston Volunteer Lawyers Program would have faced severe cuts in funding.  Legal services programs in Houston including Lone Star Legal Aid would have likely faced layoffs and an even greater number of Texans would have been turned away and denied services.

Filing Fee Increase (HB3637/SB1754; Hughes/Wentworth) – In addition to the one-time $20 million general appropriation, advocates also sought ways to increase long-term funding for civil legal services. One of the two bills which will provide a partial long-term solution for the funding crisis is HB3637/SB1754. This bill increases the portion of filing fees that go directly to funding civil legal services to the poor. A $4 increase (from $2 to $6) in Justice of the Peace Courts and a $5 increase (from $5 to $10) in County Courts, will result in approximately $4.8 million over the biennium for civil legal services. Before passage of this bill, the portion of the filing fees dedicated to civil legal services had not been increased in 12 years.

Attorney General Civil Fines (HB2517/SB2279; Turner/Ellis) – Another bill which will help secure more long-term funding for civil legal services requires that the net funds received from civil penalties relating to the Texas Deceptive Trade Practices Act be given to civil legal aid. This bill is estimated to generate approximately $1.9 million over the biennium.

ACCESS TO THE JUSTICE SYSTEM FOR INDIGENT LITIGANTS

In addition to the funding measures, the Legislature passed three bills which will greatly assist indigent litigants in accessing the justice system. These bills enable guardians in certain cases to more easily care for the children in their possession, expand opportunities to seek out pro bono assistance, and provide greater appeal rights in cases involving Temporary Assistance for Needy Families.

KinCare (HB1940/SB1598; Herrero/Walle/Watson) – Despite the fact that there are more than 240,000 children in Texas being cared for by someone other than a parent, there has been no easy way to grant decision-making authority to these children’s guardians. Even where guardianship has been uncontested by the parents, caregivers have had to initiate lengthy and expensive litigation in order to be granted decision-making power. HB1940/SB1598 changes that by allowing a nonparent relative to use a statutory power of attorney to obtain decision-making power over a minor child.  The powers of attorney can be used only where the parents consent.

Nationwide, over 54 percent of children cared for by nonparent relatives live in households that earn less than 200 percent of the federal poverty level, qualifying them for legal aid. This bill provides an easy and effective way of serving this community while allowing guardians the ability to more easily obtain decision-making power for children in their possession.

Temporary Assistance for Needy Families Judicial Review* (TANF) (SB408 Provision; Carona) – This provision establishes state court judicial review of final administrative decisions concerning the granting, payment, denial or withdrawal of TANF.  In other states, state court judicial review of these decisions is already permitted.  As this provision is implemented, there will be an increased opportunity to ensure accountability in TANF cases, which involve the basic human needs of low income clients.

Appointment of Counsel in Certain Eviction Appeals1(SB408 Provision; Carona) – This provision of SB408 will allow a judge to appoint pro bono counsel in appeals of certain eviction suits affecting indigent persons. The judge will appoint pro bono counsel from a list of attorneys who are willing to accept such cases. The party to the eviction must demonstrate that he/she was living in the residence when the eviction was filed and he/she is an indigent litigant. This bill will make access to counsel far less cumbersome on indigent litigants in another instance where basic human needs are at stake.

Through these bills the legislature has provided additional tools for pro bono and legal services attorneys to effectively assist low-income Texans and to ensure access to desperately needed, often lifesaving, legal resources. 

The Commission is grateful to the legislators and the numerous access to justice partners, including the Supreme Court of Texas, who championed these measures on behalf of poor Texans who might otherwise have been denied services from the justice system in Texas.

Elma Garcia is the executive director of the Texas Access to Justice Commission.
Hannah Silk Kapasi is a staff attorney with Texas Lawyers Care.

Endnotes

1. Filed originally as HB614; Naishtat, and HB2824; Naishtat, respectively.