New public defenders get pay bump but county struggles to retain experienced attorneys

At the beginning of the year, Travis County finally began offering a guaranteed lawyer to individuals who are arrested and can’t afford legal representation – a constitutional right known as counsel at first appearance, or CAFA.

It took an ACLU lawsuit to urge the county to rectify its failure to offer CAFA to indigent constituents, but the program is now finally up and running, if only partially. Of the roughly 80 people arrested in Travis County each day, a little over half are being provided representation. The county’s goal is to fully staff the program by July 1.

At their meeting last week, county commissioners heard a resounding message from the lawyers providing that representation: The work cannot continue if the county’s public defenders continue to be paid less competitively than offices in other counties as well as Travis County’s own prosecutors. The county’s entry-level lawyers are paid around $15,000 less than entry-level prosecutors, Community Legal Services county executive Geoff Burkhart told commissioners.

Melissa Shearer, director of the mental health division at the public defender’s office,  explained that there was previously a move to put lower-level attorneys’ pay on par with the county and District Attorney’s Office. But, “In order to do that, we had to use all of our salary savings, and then still the commissioners had to find additional money. Now we’re in the position that for the openings we have posted, we only have the money to offer at the minimum, and we also cannot career-ladder these more senior attorneys.”

Commissioners unanimously passed a new starting salary of $85,500 for early-career attorney positions. However, to solve the recruitment issue, the county had to borrow funds earmarked for raises for experienced attorneys, a move that is already leading to retention issues, according to many PDO employees who spoke at the meeting. 

Arielle Lewis-Zavala, investigation supervisor at Travis County PDO, said, “By the end of April, we will have lost two of our most experienced investigators to higher-paying defense investigation jobs. Neither wanted to leave, but both had to in order to make a survivable wage.” 

Amalia Beckner, a 10-year public defender in Texas, said she took a pay cut when she moved to Travis County from Harris County PDO. “I was able to make it work because my partner makes more money than I do, and we have family support here in Austin. Last summer, an attorney left for Harris County and got an $18,000 raise. We lost an attorney to the Office of Fair Defense, where he got a $6,500 raise. This isn’t theoretical. It’s already happening.”

Adeola Ogunkeyede, Travis County’s chief public defender, spoke to the “Sophie’s choice” the county is making, saying, “When 75 percent of your positions, not just one or two, are under market and not competitive, it becomes a zero-sum game. You can give to the people you have, but then if you want to recruit to fill your vacancies, you’re short. You’re not going to find a comparable talent when what you were paying was already insufficient and drove that person out the door.”

Many attorneys said they’d had to take on second jobs to make ends meet, and spoke to the mental toll the work takes on social workers in the department who are not provided trauma support as employees in the sheriff’s office are. But this failure to retain attorneys in turn leads to worse outcomes for clients – high turnover leading to higher caseloads and slower resolutions, meaning more people in jail awaiting trial for crimes they haven’t been convicted of.

According to the landmark 1963 case Gideon v. Wainwright, states must provide the right to indigent defense, but in Texas, it falls on counties to fund 90 percent of that defense. On top of that, Commissioner Ann Howard noted that “this is going to be the tightest budget we’ve probably faced since I’ve been here. And yet, the work is critical.”

Commissioner Margaret Gómez added, “As a matter of fact, this is mandated work for counties. We need to take care of our mandates.”

Photo made available via Wikimedia Commons [CC BY-SA 3.0 or GFDL].

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