County Pushes Public Defender Plan Forward

Commissioners Court votes to proceed with indigent defense office – but not everybody’s happy about it

(l-r) Brian McGiverin, Sarah Eckhardt, Geoff Burkhart, Andy Casey, and Darwin Hamilton back in April
(l-r) Brian McGiverin, Sarah Eckhardt, Geoff Burkhart, Andy Casey, and Darwin Hamilton back in April (Photo by Michael King)

On Tuesday, May 7, the Travis County Commissioners Court voted 4-1 to approve a working proposal to establish a public defender's office (with Commissioner Gerald Daugherty dissenting). If approved, the grant application to the Texas Indigent Defense Commission would, beginning next year, draw down nearly $20 million over four years (with county matching funds) to establish the PDO, along with additional funding for the current "Managed Assigned Counsel" system, which hires private attorneys through the Capital Area Private Defender Service. This would over time establish a parallel system of private attorneys and public defenders – with the latter handling roughly 30% of the county's felony and misdemeanor offenses.

At Tuesday's court session, there were actually three versions of the proposal on the table: a draft by the commissioners' appointed Indigent Legal Services working group; a counterproposal by the county's criminal court judges; and a hybrid version presented by County Judge Sarah Eckhardt, explicitly delaying to a later date the disputed question of the PDO oversight structure. Eckhardt quoted a friend who told her, "If you're trying to be a bridge, you need to be in the right place and be strong enough for people to walk on you in both directions."

Previously, Commissioners Jeff Travillion and Brigid Shea expressed support for the idea of a PDO, and Eckhardt strongly favored moving forward. Commissioners Margaret Gómez and Daugherty expressed reservations, mainly related to cost: Gómez said she wanted to know what services her colleagues proposed to cut to enable the county funding, and Daugherty said he didn't believe he had sufficient long-term cost information to support the plan. In the end, a still-skeptical Gómez voted to approve.

A looming wild card is the Texas Legislature, which seems intent on imposing caps on property tax revenue increases; the current proposal is 3.5%. Annual county cost drivers – insurance, contractual wage increases, etc. – are estimated at 3.8%, so the county would face program cuts (or annual tax-rate elections) just to keep up with inflation. That makes new programs such as a public defenders' office more dubious. But Travis County currently spends more than twice as much on indigent prosecution as it does on indigent defense, despite a constitutional obligation of equitable defense. (Right now, the Senate's revenue-cap bill – but not the House's – lets counties exclude indigent defense costs from the cap calculation.)

Both the Austin Criminal Defense Lawyers Association and the criminal court judges had raised objections to earlier drafts. Late last week, the judges submitted a "revised" version of the ILS working group draft: "First and foremost," they wrote, "with the intent that the current MAC system be adequately funded, as they will continue to represent the vast majority of indigent clients."

The working group's chair, Amanda Woog, quickly released a sharply worded response signed by most of the other members, charging that their initial proposal for a "client-centered" defense system "has now been co-opted to further fund and empower the current broken system. The changes that the judges have made ... illustrate how broken this system really is." According to the letter, the judges' proposed structure "would create a symbolic public defender office which instead of spurring meaningful change would reinforce – and better fund – the status quo." The letter most strongly objected to oversight committees that would include judges or judges' staff as representing a conflict of interest under guidelines published by the American Bar Association.

Some of that debate was reiterated in public testimony Tuesday, and Eckhardt noted ominously that it still remains uncertain whether the court-approved version will garner sufficient support from the judges to persuade the TIDC of the efficacy of the county's application – or whether this latest attempt to improve Travis County's indigent defense system will become so much more water flowing under Eckhardt's bridge.

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