Travis County Aims to Allow Defenders at Bail Hearings

A door in Central Booking labeled “Magistration” leads to the small space where first appearances occur (courtesy of Travis County Sheriff’s Office)

Nearly two years after Travis County officials suspended a program that offered legal representation to indigent defendants at their first bail hearing after arrest, the Chronicle has learned that a new, limited test of the program – known as Counsel at First Appearance (CAFA) – is set to take place at the end of April.

Criminal justice advocates describe CAFA as not only a constitutionally protected right that local government must provide to everyone but a tool instrumental in helping the Austin-Travis County community achieve its goals around creating a more just legal system. Advocates argue that arrestees with legal representation at magistration (the initial bail hearing following arrest) are less likely to be booked into jail unnecessarily, and more likely to have better outcomes if their cases proceed through the criminal justice system.

Now, the county is preparing to take the first, albeit small, steps toward reviving CAFA. “Travis County is committed to improving access to justice for all people,” County Judge Andy Brown told us, March 26, of the CAFA test plan, which is still under development. “And this means providing CAFA. We’re going to make sure we work with all of our partners to get a plan in place as quickly as possible.”

Under that proposed plan, outlined in an email sent by Travis County’s Justice & Public Safety Executive Vicky Ashley to CAFA stakeholders (excluding Travis County Sheriff Sally Hernandez), the test will begin with two eight-hour shifts tentatively scheduled for April 23 and 25. Defense attorneys for the first shift will be provided by Capital Area Private Defender Service, the nonprofit organization that has for years provided indigent defense to adult clients in Travis County, even since the Public Defender’s Office was created in 2019. PDO attorneys will cover the second shift.

The hearings will be conducted by visiting judges and held in the large auxiliary courtroom located on the first floor of the Blackwell-Thurman Criminal Justice Center. Attorneys and judges are hopeful that defense counsel will be able to meet with their clients in person before hearings, but if that proves logistically unworkable, the county is also exploring providing attorneys access to clients via videoconference.

A letter sent to Travis County leaders March 20 and signed by three dozen justice advocacy organizations describes the county’s current lack of CAFA as a “crisis that warrants immediate action.” The letter says that by denying access to attorneys, “Travis County forces scores of people to make an impossible choice each day: remain locked up in jail ... or argue for their freedom at initial bail hearings without the support of an attorney.”

A staff briefing at a Commissioners Court work session the next day looked at the state of indigent legal defense in the county and brought more urgency to the matter. The letter and subsequent briefing seem to have prompted the latest, somewhat frenzied effort at reviving CAFA.

The CAFA test may be helpful to people arrested April 23 or 25, but to create the kind of program advocates, attorneys, judges, and city and county leaders all say they want will take much more planning and budgeting.

Magistration is mostly run by the county, but the actual decision makers – i.e., the magistrate judges – are city employees appointed by City Council. Full CAFA implementation will require cooperation from both entities. A process to begin that planning is outlined in the interlocal agreement between the city and county that governs operations of the Central Booking Facility, where magistration currently occurs.

Per new terms added to the interlocal agreement in January, when it was extended by one year, the county must provide the Austin Municipal Court with a 45-day notice before beginning a collaborative CAFA pilot. Once the CAFA collaboration begins, city magistrates will handle four CAFA shifts per month. They’re planning to start in May, a city spokesperson said. Travis County Criminal Court judges have also committed to covering another four shifts per month once a longer-term pilot begins, District Judge Clifford Brown told the Chronicle.

The CAFA test represents a small bit of progress on an issue that has been stuck in planning hell since the 2022 pilot version of the program fizzled out just nine days after it was launched. At the time, Sheriff Sally Hernandez said too much of the new work required to support CAFA fell on the backs of her already overworked deputies (in addition to providing security, deputies were also carrying paperwork to and from judges and attorneys). Continuing CAFA, as designed then, was untenable for her office. After five TCSO employees resigned during the failed pilot, Hernandez told Travis County commissioners she could not continue to support the program without more staffing and a more accommodating facility. “CAFA is very important,” Hernandez said in a March 22 news release responding to the letter from advocates and comments from speakers at the Commissioners Court work session. “But I couldn’t stand for people to give up on their careers because they were pushed to the breaking point.”

Hernandez has pushed for more staffing and a renovated Central Booking Facility as elements of a long-term solution. As a temporary measure, she has proposed conducting the hearings via videoconference – and has already upgraded the Wi-Fi at the current facility to make that possible. But Adeola Ogunkeyede, Travis County’s chief public defender, has resisted. “PDO has submitted studies and research that shows virtual court proceedings, particularly of the first appearance type, are ineffective to produce the outcomes we’re all trying to reach by implementing CAFA,” Ogunkeyede told commissioners at their work session.

If realized, the two test shifts will be a small step forward in reviving CAFA (there are 1,095 magistration shifts in a calendar year). But the city and county still have a long way to go before the program can be made available to anyone facing arrest in Travis County every day of the year at any hour of the day (county staff estimates year-round CAFA coverage will cost about $6.5 million per year).

But, clearly, some bitter feelings remain as that work continues. “If we’re going to make CAFA happen,” Hernandez said March 22, “It’s going to take collaboration, not the blame game in a work session.”