The big picture
Local leaders and advocates have sought for years to offer counsel at first appearance, or CAFA, during magistration—the post-arrest evaluation and bail-setting by a judge—regardless of a person's ability to pay for a lawyer.
It's one of several legal reforms, like a separate initiative to divert people with mental health issues away from incarceration, now being pursued.
Both city and county leaders have sought additional resources for the program and expect it to serve more people in the months ahead.
Travis County commissioners are now considering a fiscal year 2024-25 budget that could reserve millions of dollars more for a rapid expansion of CAFA services.
“[CAFA] is what justice requires. It's something that I would say is kind of a stain on Travis County that it has taken us so long to get here,” said Janel Venzant, an attorney in the Travis County Public Defender's Office, on Aug. 27. “We saved a lot of money over a lot of years by failing in this respect. So as we're going forward, I just want to encourage Commissioners Court to not get too bogged down in the numbers, and remember that this is enabling the human element to enter into the criminal justice system.”
At City Hall, council members recently approved their own FY 2024-25 spending plan with millions reserved for ongoing county partnership on booking and magistration services, including two new judge positions.
Council also passed a resolution Aug. 29 to formally reaffirm Austin's support for CAFA and collaboration with the county moving forward. Regular reporting on the representation program will be required until CAFA is widely available.
"We’re bringing forward a policy because I fundamentally believe that no one should be jailed simply for not affording bail," council member Vanessa Fuentes, the measure's author, told Community Impact. "With this counsel at first appearance program, it’ll be a way that we can correct this injustice and ensure that we have equitable representation throughout the entire legal system process."
Put in perspective
Bradley Hargis, executive director of the Capital Area Private Defender Service, a nonprofit overseeing much of Travis County's indigent defense, testified to City Council on Aug. 29 that magistration is one the most important steps for determining client outcomes.
Without the benefit of counsel, he said many clients today are going before a judge without fully understanding the process, and can see outcomes that lead to a loss of housing, employment, belongings and more.
"As one of those attorneys that has represented dozens of people across the 30 shifts that we’ve done over the past few months as part of our implementation plan, I can tell you I’ve had judges tell me, ‘I was not going to release your client today, but after having heard the initial information you’re presenting, I’m going to go ahead and grant a personal bond,'" he said. "I’ve had felonies that were reduced to misdemeanors because of fact problems. I’ve had misdemeanors and felonies rejected. These are things that change lives."
Darren Thornhill, a re-entry worker with the Texas Harm Reduction Alliance, also testified that his recent jailing may have been prevented with representation after his arrest in a "he-said, she-said situation."
“If I would’ve had an attorney present, we would’ve been able to argue that I needed the [personal recognizance] bond," Thornhill said. "I would’ve never, ever made it downtown to go to the jail. ... It’s just not right.”
Zooming in
CAFA in Austin and Travis County has moved through stops and starts in recent years. The lack of full-time legal services during bail hearings led one arrestee to sue the county this spring over its "two-tiered" magistration system that he, and others, said results in disparate legal outcomes for those who can and can't afford early representation.
The latest action by city leaders follows past efforts aimed at jail alternatives and seeking to eliminate "wealth-based detention."
Local CAFA offerings remain in a trial state as of this summer. Less than three dozen CAFA shifts with local judges and magistrates have been completed so far, covering more than 800 arrested individuals, according to an August report to county commissioners. Earlier this year, Austin police also began testing virtual magistration to relieve stress on the legal system.
However, new funding could support the additions of dozens of staff positions allowing for more CAFA shifts and standardized representation on daily dockets. Travis County Budget Director Travis Gatlin called the current proposal "the single biggest and fastest undertaking" on the issue in more than two decades.
What's next
The phased approach could start providing counsel for all during one nine-hour shift in court every day as soon as this fall. Officials hope to begin scheduling two daily shifts, resulting in full CAFA implementation, within a year.
“As a city, I believe that we have a responsibility to protect the rights of our community. And with this program ... we are taking a critical step in that direction," Fuentes said. "Seeing the counsel at first appearance program expand, truly it’s about sending a clear message that we are pursuing equity on all fronts of our legal system.”
As further testing and program expansion continues, Travis County Defense Attorney Seth Manetta-Dillon also urged county commissioners and staff to evaluate new magistrate hires extensively.
During past trial runs, he said there were instances when magistrate issued different, often more harsh, opinions than what the prosecutor and defense attorneys have negotiated and agreed upon.
“If we're going to renew the contract with the city, or if we're going to hire two new county magistrates, I think it's important that that process is transparent, that it's open, that the individuals who are hired for those two new roles have to answer the questions from the stakeholders and from the citizens of the county," Manetta-Dillon told commissioners Aug. 27.
