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Despite property tax limits, Travis County remains committed to public defender’s office

Wednesday, July 17, 2019 by Jack Craver

The Travis County Commissioners Court took another step Tuesday toward creating the county’s first public defender’s office. The court voted 4-1 to provide additional information to a state agency that is considering providing a multimillion-dollar grant to the county to set up the new office.

The court voted in May to apply for the grant from the Texas Indigent Defense Commission, which could give the county roughly $19 million over four years to cover the startup costs of setting up a team of full-time attorneys and other legal specialists to provide legal defense to low-income adults facing criminal charges.

After receiving the application, TIDC asked the county to provide more details on plans for the new program, including the responsibilities and membership of the committee that will be charged with overseeing the public defender’s office.

On Tuesday, the court voted in favor of a recommendation by staff proposing an oversight committee composed of one member each from seven key stakeholder groups. While the recommendation did not include specific names, it described the types of people who should have a seat at the table.

The application says the oversight committee will include a representative of the new public defender’s office, a private defense attorney, an academic with expertise in the subject matter, an ex-offender or formerly incarcerated individual, an advocate or community activist engaged with the issue of indigent defense, a retired criminal or civil court judge, and a member of the Commissioners Court.

The committee will be in charge of hiring or firing the leader of the new public defender’s office; coordinate with county staff to ensure the new office has the necessary resources, including office space and technology; develop metrics to measure the success of the new office; interface with other key legal entities such as law enforcement and prosecutors; and deliver reports to the Commissioners Court on the program’s performance.

Commissioner Gerald Daugherty, who opposed the grant application in May due to concerns about the county’s ability to fund the new office long-term, was the lone vote against the recommendation. While other commissioners have said they fear the new property tax limits recently enacted by the state Legislature will make it difficult to fund the new office, even with the help from the TIDC grant, they did not indicate on Tuesday that they were reconsidering the application.

Travis County currently pays for private attorneys to provide defense to the indigent. Under the new proposal, most defendants will continue to be represented by private attorneys. About 30 percent, however, will be represented by dedicated public defenders employed by the county. Supporters of the new office reason that the public defender’s office will benefit all defendants by creating an “institutional column” for indigent defense, including case records and expertise that even private attorneys can draw on.

Overseeing the integration of the new office with the existing system of private assigned counsel will be a critical function of the oversight committee. The grant application proposes changing the way private attorneys are paid from a per-case fee to hourly rates. This is in response to concerns that the current system encourages attorneys to seek speedy plea bargains instead of taking cases to trial.

Commissioner Brigid Shea also wanted to specify that the new committee should explore possibilities for new funding sources, including grants. While County Judge Sarah Eckhardt agreed that it’s critical for the county to be on the lookout for money wherever it can find it, she argued that the oversight committee may not be the appropriate body to be in charge of that.

“I’m reticent to put that additional responsibility on this board, because this board’s already going to have their hands full,” Eckhardt said.

In response to pushback from Shea, Eckhardt agreed to language that said the board will “advise and inform” the county budget office “in regards to grant opportunities or any other funding sources.”

Two advocates at Tuesday’s meeting expressed general support for the plan, but voiced concerns about the membership of the oversight committee, specifically the inclusion of a retired judge and a member of the Commissioners Court.

Chris Harris, a policy analyst at Just Leadership, a state nonprofit that advocates criminal justice reform, argued that the committee should be free of influence from the judiciary and politics. He likened having an elected judge or commissioner on the court to an umpire who is also one of the team’s managers.

In later remarks to the Austin Monitor, Harris said that while a retired judge presents less of a conflict than a current officeholder, he noted that retired judges often will be called upon to preside over cases. They have strong relationships with different segments of the legal community, he said, such as prosecutors, law enforcement and private attorneys.

Indeed, he said, it was concerns over conflicts of interest that led the county to put in place its current system of private assigned counsel. Previously, it was up to the presiding judge to assign attorneys to indigent defendants. That system raised concerns, Harris said, that judges would assign cases to friends or to those they liked working with, rather than the attorney who would provide the most aggressive defense.

The Commissioners Court’s work on the application is not finished; over the next two weeks, county staff will make tweaks to the application that the court will need to OK before TIDC’s July 31 deadline. Among other things, the court will have to name specific people to the oversight committee and approve changes to the proposed funding and scope of the office.

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