You Have a Right to Counsel. So Why Doesn’t Travis County Allow Attorneys at Bail Hearings?

art by Zeke Barbaro / Photo by Suzy Hazelwood

If you are arrested in Austin this Friday, a lot of things will go how you'd expect: An officer will bring you Downtown to Central Booking, a sort of cinder block version of a DMV waiting room that sits in the basement of the Downtown jail. There, Travis County Sheriff's Office staff – often working on a skeleton crew and sometimes working double shifts – will search you, take your fingerprints, and snap a photo of you in your gray-and-black stripes.

Then things will get weird. When you end up in front of a judge a few hours later, you won't be in a courtroom. You'll walk through a teal-painted steel door with the all-caps "MAGISTRATION" written above, and you'll find yourself in a space that "looks more like a storage closet" than a courtroom, as Texas Fair Defense Project's Geoff Burkhart puts it. There, you'll have your first hearing with a magistrate judge who will decide your bail, which encompasses all the conditions of your release, including how much you'll have to pay. And you won't have a lawyer representing you.

Going without counsel at first appearance (CAFA) is a big problem – the type of problem that many lawyers say violates a defendant's constitutional right to due process – and yet it's par for the course in Travis County and many counties across Texas. "People standing alone at magistration [that first bail hearing] face an impossible choice," says Trisha Trigilio, an ACLU attorney fighting Texas' rejection of CAFA. "Do I try to argue for my freedom, and risk saying something bad for my case? Or do I remain silent, and get locked in jail without the chance to be heard? No one should have to make this strategic decision without the help of a lawyer."

For single parents, a few nights in jail could cost them custody of their children, says Travis County Chief Public Defender Adeola Ogunkeyede. Cancer patients may miss treatments. Folks living paycheck to paycheck often lose their jobs, and as a result, their housing. Ogunkeyede spent years as a public defender in the Bronx, where line staff attorneys like her worked "24/7/365" representing people during their initial appearances before a judge. So here, she's frustrated with what she sees as a lack of political will to get CAFA in motion.

"The idea that Travis County has not had counsel at first appearance for a long time and the sky didn't fall – I'm like, from whose perspective?" Ogunkeyede said. "If you talk to individual human beings who have come through the Travis County system thousands at a time, year after year after year, I'm sure if we actually look at their stories and their life trajectories, having a lawyer at that appearance would have made a world of difference."

Ogunkeyede says bail amounts in Travis County are set "extraordinarily high," so too often people remain in jail simply because they're poor, rather than because of a threat they pose to the community. A large jail population puts even more strain on the county's already understaffed sheriff's office, whose people work some of the most traumatizing jobs in the county.

So it's no surprise that county leaders support getting lawyers to first appearances. The benefits to our community, were CAFA feasible, would be far-reaching. But thus far, that shared desire has not been enough – it continues to be the case that no Travis County defendant is allowed an attorney at their first appearance. Though a county workgroup has been discussing CAFA, the update they provided to the Travis County Commissioners Court Tuesday didn't include a timeline to start bringing attorneys into magistration. It's possible CAFA won't be implemented until a federal court requires it.

Overfull jails and people losing custody of kids and missed treatments are obvious and immediate problems that the presence of defense attorneys could help prevent. What isn't obvious is how magistration – a quick hearing that only addresses bail rather than guilt or innocence – could actually change the course of someone's criminal case, or have an effect on someone's eventual sentencing.

Sentenced Without a Trial

When we think about justice in America, we think of our day in court. But a trial isn't where most criminal cases are resolved. Instead, about 98% of cases are hashed out quietly in plea agreements – usually, defendants will plead guilty to lesser offenses to avoid going to trial over more serious charges that carry longer prison sentences.

The number of cases resolved without a trial has been increasing in America, following decades of tough-on-crime policy (such as minimum sentences) that contributed to the United States becoming the most incarcerated country in the world. If every U.S. state were a country, Texas would have the 10th-highest incarceration rate of all the world's nations, behind nine other U.S. states. So with the vast majority of prison sentences being decided without a trial, what happens in a person's case pre-trial – during all of the steps that lead to that fateful negotiation – is more important than ever.

"A prosecutor who knows that you've already been sitting in jail for weeks, or that you said something damaging in court, is going to offer you a worse deal. And at that point your lawyer can't do much to help you," ACLU attorney Trigilio told the Chronicle. Without lawyers at first appearance, people are convicted more often, go to jail more often, and get longer sentences, Trigilio explains. "That's the effect of unfair plea bargaining."

Of course, what is fair and what is constitutional are not one and the same. But in this case, a plain reading of the U.S. Constitution and Texas law both seem to suggest a right to counsel at any hearing. (The Sixth Amendment guarantees, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ... and to have the Assistance of Counsel for his defense." And Texas law ensures that "the right to be represented by counsel includes the right to consult in private with counsel sufficiently in advance of a proceeding.")

So it's possible that Travis County will be forced to implement CAFA in the coming months. The 5th Circuit appeals court hasn't decided yet, but in Booth v. Galveston County, Trigilio argues that the U.S. Con­stitution requires CAFA. The legal groundwork has already been laid – in 2008, the Supreme Court decided in Rothgery v. Gillespie County (another case that originated in Texas) that a first appearance constitutes an "adversarial preliminary hearing," in which the Sixth Amendment right to a lawyer "attaches." That seems straightforward, but Trigilio explains that a federal court must still deem first appearances a "critical stage" in order to determine that refusing to provide counsel at first appearance is unconstitutional.

That bail hearings constitute a "critical stage" in a criminal case seems obvious. In places where people get a defender at their first hearing, they immediately have someone who can investigate on their behalf while they're in a jail cell – for instance, a lawyer can get security footage that proves their client's innocence before it's erased.

Because the vast majority of criminal cases end in plea negotiations instead of a trial, the importance of a defense attorney in pretrial steps is more important than ever (Chart by Maggie Q. Thompson / Zeke Barbaro)

In Travis County, court-appointed lawyers are only assigned cases on business days, so someone arrested on a Friday of a three-day weekend could spend four days in jail before getting an attorney. Videos, texts, and other evidence can be destroyed before a lawyer knows to look for it. And Trigilio points out that building a defense from a jail cell is "nearly impossible" due to most communication being limited and recorded. "Compromising the right to counsel is not an option," she says.

No One's in the Way, So Why Are We Standing Still?

Travis County is a relatively rich county that can afford to experiment with its criminal justice process. And the Travis County leaders who have stakes in bail hearings support CAFA. Of course defenders want it. The District Attorney's and County Attorney's offices also support it, as do magistrate judges.

Sheriff Sally Hernandez has supported CAFA and for a simple reason: "I want people out of my jail. When you have low staffing and a high [jail] population, that's not a good combination. I want people out of jail and I want people to get help."

A year ago, county leaders assembled to try and make CAFA work. Bradley Hargis leads Capital Area Private Defender Service, the nonprofit that Travis County contracts with to provide counsel for arrestees who can't afford to hire a lawyer. His team secured a grant to fund the implementation of CAFA; in April 2022, after meetings with the Sheriff's Office, attorneys showed up at Central Booking. And it was a mess.

It may sound implausible, but Central Booking didn't have room for lawyers. "There's zero visitation space," Hargis said. "So they were letting us, the attorneys, work out of their command briefing room."

Sheriff Sally Hernandez (photo by John Anderson)

Because people booked into jail are often intoxicated, undergoing a mental health crisis, or simply belligerent, they need to be escorted by officers, Hernandez says. Usually, officers bring groups of defendants into the magistration room all at once. But for private, individual conversations between attorneys and clients in disconnected spaces, there have to be enough officers to escort people one at a time.

"We were trying to retrofit a building built a long, long time ago with this not in mind," Hernandez said. "It was not a happy thing for us when I finally had to stop. I remember coming in on Easter day [during the pilot]. I saw the defense attorneys working their tails off, trying to do all kinds of things – trying to get the judge's computer working, trying to get paperwork. We were just trying to do everything that we could to make it work, and they were trying to do everything they could, and I saw my staff just running ragged."

They've made strides since then, working with county IT staff to get Wi-Fi working in Central Booking – a challenge because of its thick cement walls. Commissioners have also approved $1.5 million to renovate a moldy, unused courtroom in Central Booking for magistration (to be completed in 2024), though that doesn't solve the problem of missing visitation space or understaffing. Tuesday, commissioners approved funding for a staffing study focused on TCSO. But for the time being, staffing is still a major issue. Hernandez says some staff quit because of the overtime CAFA required. Resignations far outpaced new hires in 2022, though applications picked up this year. For a normal shift at Central Booking, the bare minimum staffing includes 19 officers and sergeants, plus three civilians, says Robert Stanford, who handles researching and planning for the Sheriff's Office and also picks up shifts in Central Booking on weekends. With CAFA, they need another six officers, or about a 30% staffing increase, every shift. But instead of gaining people, the Sheriff's Office lost them around the time the CAFA pilot ended.

"People were quitting all over the place, because we just kept loading them up," Hernandez said. "They think they're going to go home after a shift, and a sergeant walks up and says, 'For us to be in compliance you have to stay.' And they've got kids they haven't seen."

From the attorneys' perspective, another massive hurdle lies in the unreliability of when probable cause affidavits – the paperwork that justifies arresting and jailing someone – shows up at Central Booking. In some counties, an officer can't leave an arrestee at jail until they've submitted a PC affidavit. In Travis County, officers have up to 24 hours to return the report in misdemeanor cases, and 48 hours in felony cases. If they miss that deadline, the Sheriff's Office will release the arrested person at exactly the 24- or 48-hour mark, as they are legally required to do.

Travis County's Central Booking facility (courtesy of Travis County Sheriff's Office)

Because Sheriff's Office staff don't know when PCs will come in, they can't plan dockets in advance. When CAFA was running, this meant attorneys often had only an hour or so to familiarize themselves with a host of clients and cases before magistration was set to begin.

During the CAFA pilot, while attorneys tried to cram in those visits, they often went over their time limit, which then delayed hearings. Ultimately, as Magistrate Judge Sherry Statman explains, the attempt at CAFA actually kept some people in jail longer, as those who would have been released on personal recognizance (without having to pay bail) waited to see a judge.

Cleaning Up the Magistration Mess

Even with the delays Statman saw, she, like everyone we talked to, wants to give CAFA another go.

"Magistration and magistrate judges are the first line of defense as far as consti­tu­tional rights," Statman explained. "Is there probable cause to arrest somebody? To come into someone's home and search? Is there probable cause for blood search warrants? It's a serious responsibility, not something to be taken lightly, and anything that can improve that process and protect the rights of people is a good thing and needs to be pursued."

Hargis and Hernandez agree that to make CAFA efficient, Travis County needs a new booking facility – one with easily accessible visitation spaces, and with room for mental health services.

Bradley Hargis of Capital Area Private Defender Services (photo by John Anderson)

But Travis County Commissioners Court has not yet agreed that a new facility is a top priority, and even if they did today, designing and building a new Central Booking space will take a few years. So it would seem we're at an impasse in Travis County. We have enough money for more officers to work in Central Booking, but the Sheriff's Office can't find enough people interested. "It's a hard job to entice people away from tech jobs and other jobs," TCSO's Stanford said. "A normal person doesn't have to go to work and expect to be assaulted."

Amid logistical barriers, the ACLU's Trigilio has a straightforward suggestion: If a county can't figure out how to jail someone constitutionally, don't jail them. In practice, that could mean that the county adopts a policy of releasing people arrested for broad categories of charges – they might be informed of their charges via papers they're sent home with rather than in a hearing.

But Hernandez would rather see those folks diverted to mental health professionals than released with no support. "I think we are, as a society, losing the perspective that we have victims. You're going to let an assault family violence arrestee out? ... The last thing you want to do is let somebody out and not have anywhere for them to go."

With all of these factors at play, Hargis sees one relatively quick fix: Require that APD bring in probable cause affidavits to Central Booking at the same time as their arrestees. Hernandez's quickest fix would involve virtual visits between attorneys and clients over secure tablet devices. During their Aug. 1 meeting, County Commissioners discussed CAFA again, seeming open to the virtual option, though they did not make final decisions. Each path introduces complications. Requiring PCs to be filed immediately can keep police tied up with paperwork during busy times for crime, when they could instead focus on patrol and handle a PC later, during quieter hours. Virtual visits aren't ideal for attorneys and their clients, and apps designed for jail visitation record unless users opt out, presenting the risk of accidentally recording attorney-client privileged communication (rendering it admissible at trial). The workgroup Aug. 1 said they've worked out a solution using Microsoft Teams, which would resolve part of that issue, and they'll be ready for Ogunkeyede to test out the app Aug. 10.

Whatever the set of solutions will be, they may need to happen quickly. Even if the CAFA-focused Booth v. Galveston case, currently pending a decision from the 5th Circuit, is dismissed, it could be appealed up to the Supreme Court. And cases over the constitutionality of refusing to provide counsel at first appearance are also pending in Oklahoma and North Carolina.

"This is not a question of whether, but when," Trigilio says. "All the experts to study this have reached the common sense conclusion – lawyers are necessary for fair bail hearings. Local governments can choose to do the right thing or wait to be sued, but systems that are implemented voluntarily are much more effective."

* Editor's note Monday, Aug. 7, 9:50am: This story has been updated to correct that Geoff Burkhart is no longer with Texas Indigent Defense Commission; he is now executive director of Texas Fair Defense Project. The Chronicle regrets the error.