Update:Travis County is one step closer to creating a public defender office that would handle felony and misdemeanor cases of low-income defendants who can’t afford a lawyer.
The Austin area is the largest in the U.S. without a public defender office. The planning process leading up to approval from commissioners has been mired in infighting – namely from private criminal defense attorneys working within the current system and advocates who want more accountability.
The county faces a Friday deadline to apply for a grant from the state.
County commissioners passed a proposal from Judge Sarah Eckhardt, which amended a plan from judges to apply for the grant. Commissioners heard hours of testimony from members of the county's Indigent Legal Services work group, which argued the judges' plan lacked oversight.
Commissioner Brigid Shea said she couldn’t support a plan from the ILS work group because it wouldn’t likely be approved by criminal judges, who, per state rules, must OK the plan.
"Voting for the ILS proposal today means that it's dead on arrival and we miss the entire opportunity. I don't see what that achieves. I want us to move forward with a public defender office. I do believe we can work out our differences. We just can’t get it done today," Shea said. "So, I simply [Eckhardt's plan] as giving us more time to work out the differences and come up with something that we can all live with and, hopefully, be proud of."
The grant could provide as much as $20 million to create the office and increase funding for the current indigent defense system, which uses private attorneys. Ultimately, the public defender office would handle 30 percent of cases and the private attorneys would handle 70 percent.
Travis County has been trying to create a public defender office to handle cases for low-income defendants for the last six months. It hasn't been an easy feat.
To pay for a new office, the county is applying for a $20 million grant from the Texas Indigent Defense Commission. The grant application must first get approval from criminal judges and an OK from the Travis County Commissioners Court, though.
The plan for a public defender office was nearly derailed by infighting between the current attorneys representing poor defendants and advocates wanting more oversight. That tension was on display last month at a public meeting about the office at the George Washington Carver Library in East Austin.
Amber Vazquez Bode is a criminal defense attorney who works in the current system of private criminal defense – the Capital Area Private Defender Service, or Caps. She was part of public discussions on crafting the proposal for the public defender office, but dropped out. She and other attorneys say they appreciate the willingness of the county to fund a public defender office but say it could come at the cost of attorneys working within the current system.
"This is not the magic bullet, and it's, once again just like Caps was, being sold as this magic bullet that's going to help the indigent," Vazquez Bode said.
Of the 254 counties in Texas, Vazquez Bode and other attorneys say, Travis County ranks last in how much it pays attorneys assigned to low-income defendants. On top of that, many attorneys are overworked. One attorney in the system handled 600 cases last year alone. The state recommends attorneys work a maximum of 138 felony cases or 239 misdemeanors a year.
To view all 2018 indigent defense caseloads in the graphic, scroll to the right or view in full screen.
Advocates who want a public defender office say that leads to a "rocket docket" – when attorneys negotiate plea deals just to move cases along. That, in turn, leads to more low-income defendants spending time in jail. A study last year found poor defendants in Travis County were twice as likely to go to jail if they had an assigned attorney compared to a hired attorney.
"[A public defender office] can't change anything unless we change those other circumstances," Vazquez Bode said. "It doesn't work in a bubble."
On top of that, Travis County doesn't fund indigent defense as well as it should. Travis County Judge Sarah Eckhardt says that's partly because of how the state handles – or doesn't handle – indigent defense.
"The state doesn't pay for that. And so they push it down to the counties to pay for that," Eckhardt said. "So, it's extremely underfunded, and as you can imagine, being underfunded, it has really unfair results for poor defendants."
Eckhardt and the Travis County Commissioners are weighing the plan from the county's work group today ahead of a May 10 deadline. The proposal shores up the current system and creates a public defender office with independent oversight.
But the county can't sign off on the grant application unless criminal court judges OK it. That's led to some hand-wringing, Eckhardt says.
"We've got a little bit of a conflict here. State government says the judges get to decide," she said. "National best practices say [a public defender's office] should be independent from the judiciary, so we're walking a tightrope here."
And late last week, judges drafted a proposal of their own. Amanda Woog of the Texas Fair Defense Project, who helped draft the initial proposal for the county, says the judges' proposal strips out money for support staff and gives judges too much leverage in crafting a public defender office – without public input.
"Texas judges have a lot of power over indigent defense," she said. They shouldn't be "designing and dictating what an indigent defense system should look like ... especially when it goes against research and best practices and what the community is asking for. So, it was really disappointing."
But Criminal Court District Judge Tamara Needles says it's not that simple. She was a defense attorney for 18 years before she was elected to the bench. Given the state's rules, she says, the judges are required to at least have a say in how the office is created, but she doesn't think they will end up shaping the office. Ultimately, she says, she thinks judges will agree to the plan and then bow out.
"I think we're faced with a situation where it is that, yeah, the judges will end up stepping out of it, because that's the ethical thing to do, and it will run without us," she said.
Whatever the outcome, the county is running out of time ahead of Friday's grant application deadline. On top of that, a bill working through the Texas Capitol to cap property tax increases could limit funding for the office going forward, so that $20 million would go a long way.
"That [bill would be] a big hit to our ability to fund, to more deeply invest in indigent defense, which is desperately needed," Eckhardt said.
The County Commissioners will take up both proposals and possibly approve the grant application at its meeting this morning.
Correction – An earlier version of this story said Amber Vazquez-Bode was on the county's work group to help create a public defender office. While she was in public discussions on the office, she was never on the work group.