ACLU sues Travis County for failing to provide legal counsel

The American Civil Liberties Union has filed a class action lawsuit against Travis County for its failure to provide arrestees access to a court-appointed lawyer preceding their first hearing before a judge, known as counsel at first appearance, or CAFA. 

CAFA is intended to assist jailed individuals who cannot afford a private lawyer for work before the magistration hearing, which is where a judge decides the appropriateness of arrest in the first place and sets bail. 

Receiving CAFA upon arrest, the ACLU contends, is not simply reflective of positive outcomes or to be thought of as a social service: It is a constitutional right.

In Travis County, magistration sessions are currently conducted by videoconference in the basement of the jail, in a configuration that many have voiced is highly uncomfortable. As with the whole of the jail, CAFA attorneys are not permitted inside the room. 

Multiple organizations have studied these hearings, finding that individuals – up to 29 percent, as found in one study – brought before a judge prior to meeting with an attorney are often pressured aggressively by a judge to bring forth self-incriminating information. This can damage their own case and allow for a host of consequences as their case moves to trial. 

People are often burdened with extraordinary bail amounts at these hearings – another distinguishing feature of the county’s criminal justice system – and many people are behind bars for days before their magistration appointment with cases that would have been waved away pre-trial with the help of an attorney.  

In past sessions of the Travis County Commissioners Court, especially relating to the plans for the new Diversion Center, commissioners have emphasized the potentially injurious effects of “even one day in jail,” citing its potential to disrupt medical treatment, income, employment, housing and custody of their children. Its failure to provide CAFA – potentially relegating this same class of individuals to weeks of confinement and congruent damages – has attracted years worth of criticism. 

In 2022, the county created a pilot program for CAFA implementation in concert with Texas A&M University and the Capital Area Private Defender Service, supported by a $500,000 grant. Travis County Sheriff Sally Hernandez, frustrated by staffing issues, essentially rescinded her support for the program shortly after its implementation, offering to dedicate the pilot two eight-hour shifts per month. The program collapsed after nine days. 

Now, officials are poised to implement a similar effort, raised from the grave – without the resources of a university and a $500,000 cash infusion. In a proposed plan, county officials will facilitate two eight-hour CAFA shifts providing legal services in partnership with the Capital Area Private Defender Service. The committee plans to offer legal services in a large auxiliary courtroom at the Blackwell-Thurman Criminal Justice Center, with adequate videoconferencing infrastructure still on hand. 

Photo made available through a Creative Commons license.

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