Commissioners Court to Decide Next Step in Proposed Public Defender’s Office

May 7 vote scheduled to approve grant proposal to fund new indigent defense office

Gerald Daugherty in 2015
Gerald Daugherty in 2015 (Photo by John Anderson)

On Tuesday, May 7, Travis County Commissioners Court is scheduled to vote on whether to approve and advance a grant proposal to the state-funded Texas Indigent Defense Com­mission that would help underwrite establishing a public defender's office for the county. This is a criminal justice can the county has kicked down the road for years, and – though virtually every official stakeholder, from judges to jailers, provides rhetorical support for the idea – it's still unclear whether this time, commissioners will accept the long-term responsibility and risk of fully initiating a PD program.

The proposal under consideration (with an application deadline, already extended, of May 10), drafted by a working group appointed by the court, projects a four-year ramp-up of an office requiring 40 trial attorneys and their support staff (about 70 positions total), eventually handling about 30% of misdemeanor and felony cases in Travis County. Over that time, the TIDC would provide a little over $19 million in funding for the office, front-loaded so that (for example) first-year funding is $7.8 million from the state with a county match of $1.9 million. As the grant diminishes, by the fourth year (2023), the state-county split would be roughly reversed.

The current draft also anticipates additional resources for the county's existing "Managed Assigned Counsel" program, which operates through the Capital Area Private Defender Service, of $5.7 million over the term of the grant. The new initiative would also create a pilot program to establish hourly pay scales for CAPDS attorneys; a common objection to the current system is that most assigned attorneys receive flat fees per case, creating a "perverse incentive" to provide less service to each individual client.

Since CAPDS would continue to handle 70% of the cases, many defense attorneys are skeptical that added temporary grant funding will much help what they say will continue to be an underfunded system. Earlier this year, members of the Austin Criminal Defense Lawyers Association officially withdrew from the working group, saying their concerns were not being addressed. Asked about the proposal's prospects at Commissioners Court, Texas Fair Defense Project Exec­utive Director Amanda Woog (who chairs the working group) declined to predict, but praised the application proposal as a major step in providing "client-centered" defense for those accused otherwise unable to hire private attorneys. She said it's past time for Travis County to join most other major metro jurisdictions in having a public defender's office, and cited research confirming "better outcomes" – shorter jail times, fewer convictions – for defendants. "We would be building something that has a proven structure," said Woog. "One that would benefit poor people charged with crimes."

Although all stakeholders generally say, "I support the idea of creating a public defender's office," the "but ..." follows fairly quickly. In addition to resistance from the criminal defense bar, local judges did not sign on to earlier versions of the proposal – the latest one, submitted to them last week, remains on their desks – and they were notably absent from Tuesday's court discussion, which reiterated concerns about how much the plan would cost and where the money would come from. Those qualms were expressed forcibly by Com­mis­sioners Margaret Gómez and Gerald Daugherty; County Judge Sarah Eckhardt and Commissioners Jeff Travillion and Brigid Shea seemed determined to advance the county's constitutional responsibility to provide adequate defense (still an aspirational goal, even if the grant is successful).

Looming over the entire discussion is the very real threat of the current Legislature imposing severe property tax caps – if that happens, Eckhardt acknowledged, existing as well as new programs will be increasingly precarious. Nevertheless, she insisted, the court has to move forward with what it knows now and what it believes best to fulfill its criminal justice obligations – and it "can't afford to leave $20 million [in state funding] sitting on the table."

A TIDC spokesperson told the court that for the grant to be approved, it would need broad official support – most importantly, from the judges. If that's not publicly forthcoming by next Tuesday, the entire project remains in doubt. As for the defense bar, they reiterate the need for "adequate funding" for CAPDS and the newly proposed PDO, and point to "systemic problems" – inadequate administration, remote jail facilities, and a range of broader problems – unaddressed in the current proposal. Woog responds, "We do need to address those systemic problems – and the public defender's office can provide an institutional voice to do exactly that."

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