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Commissioners Court makes move on public defender’s office

Wednesday, May 8, 2019 by Jack Craver

Travis County took a crucial step toward creating a public defender’s office when the Commissioners Court voted 4-1 Tuesday to submit an application for state funding to set one up.

The commissioners made the move after months of debate among defense attorneys, judges and criminal justice reform activists about what the new office should look like and how it should impact the existing system of indigent defense.

Currently, defendants who are deemed indigent in Travis County are assigned a private defense attorney who represents them for a flat fee paid by the county. Under the grant proposal the county is submitting to the Texas Indigent Defense Commission, the county would hire an office of dedicated public defenders who would eventually represent 30 percent of all defendants, while the remaining cases would be handled by privately assigned attorneys.

County Judge Sarah Eckhardt has described a dedicated public defender’s office as a moral imperative, a necessary counter to the government’s “most awesome and most terrible power” to deprive citizens of liberty and even their lives.

At issue was not only whether to apply for the grant, but the design of the system proposed in the grant application. In particular, there were differences over funding and oversight of the new office.

The first proposal, which was crafted by the Indigent Legal Services work group made up of stakeholders in the legal community and supported by criminal reform activists, put forward an oversight board composed of defense attorneys, social workers and people with “lived experience” relevant to the system, such as former defendants and family members of defendants.

The second proposal, which was crafted by county criminal court judges, included two places on the oversight committee for judges. It proposed a separate committee to receive input on the system that would include former defendants, family members of defendants and social workers.

In addition, the judges proposed increasing funding for the existing private assignment defense system, so that attorneys would be paid on an hourly basis. Currently, attorneys who are assigned indigent defense cases are paid a flat fee, no matter how quickly the case is resolved. That has raised concerns that the flat-fee system gives attorneys an incentive to quickly accept plea bargains, rather than mount an aggressive defense.

The first proposal would pay private attorneys hourly only for first-degree felony cases.

Many supporters of the first proposal vehemently opposed the notion of including judges on the oversight board, calling it a conflict of interest.

Meanwhile, the judges have signaled that they would not support the first proposal. For TIDC to approve the application, it needs to be signed by at least one criminal court judge.

In an attempt at a compromise, Eckhardt proposed a third option, which was essentially the same as the judges’ proposal but did not specify the members of the oversight body, except to say it would include defense attorneys, community members with lived experience and retired judges. By her own admission, the application would “punt” on that issue until after the grant is awarded.

Commissioner Brigid Shea motioned for the court to adopt Eckhardt’s proposal, saying that while she sympathized with the objections of the ILS members, there would be no point in submitting an application that the judges would oppose and therefore block.

Commissioner Gerald Daugherty said the arguments for the new office were sound, but the cost was simply too great, particularly in light of revenue caps that the Legislature is likely to impose on local governments this session. Bills approved by the Senate and House of Representatives would lower the rate at which county and municipal governments could increase the effective tax rate each year — without a public vote — from the current 8 percent to 3.5 percent.

“I’m as nervous as I’ve ever been about our budget,” said Daugherty. “Because we know what’s coming down the pike. It’s 3.5 percent.”

A tax rate cap that low would leave the court with almost no room to add spending beyond existing programs, he said.

The grant would provide roughly $19 million over four years in startup costs, but the county would have to bear the ongoing expense of the added staff. The tax bill approved by the Senate includes an exemption for any new spending on indigent defense, meaning that the county could boost spending on a new public defender’s office without it counting toward its overall revenue cap. The House bill does not include that exemption. The two chambers are expected to negotiate on the details of the tax legislation.

Commissioner Margaret Gómez told her colleagues that if they move forward with the new program, they have to be prepared to make cuts elsewhere.

“I’m ready to do the tough job, but I’d like to know that we all are,” she said.

Shea’s motion passed 4-1, with only Daugherty opposed.

This story has been changed since publication to clarify that legislation from the state would trigger a public vote at a lower threshold, not cap taxes without recourse.

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