AUSTIN, Texas — The American Civil Liberties Union (ACLU) is suing Travis County, claiming the county is violating an arrested person's right to counsel at first appearance.
The ACLU said when put in jail in Travis County, it could be mere hours before the defendant has to appear in front of a judge for a first hearing. For those who can’t afford an attorney, they will be given a court-appointed attorney, but the ACLU said it could be days before they even get to talk to them.
“If you don’t get access to a hired attorney, you get appointed one days later and that means you may be in jail for several days before any attorney even meets with you, talks to you or is able to advocate for your release,” Nick Hudson, a policy and advocacy strategist at the ACLU of Texas, said.
That also means those defendants go into the first hearings without having a chance to talk with counsel. And from observing these hearings, the ACLU of Texas said the magistrate judge tends to ask tough questions related to the alleged crime, which can compromise the defendant's case.
“These are hearings where really important decisions that impact your entire case are made,” Hudson said. “Many people are saying things that could harm their case.”
Attorneys are not physically allowed to be present for that first hearing, which usually occurs virtually from the basement of the jail. But if they are already in contact with their client, they have the ability to negotiate bond amounts and conditions with the judge and potentially get their client out while awaiting trial.
Hudson said it's an important right that, if provided, can have life-changing outcomes.
“When people are in jail unnecessarily, they may miss medical treatment, they may lose custody of their children. They lose their jobs and incomes and housing,” Hudson said.
In March, 37 organizations sent a letter urging the county to take immediate action, but it wasn’t until Wednesday night that this lawsuit was filed.
Two years ago, Travis County tried to implement a counsel at first appearance (CAFA) pilot program, but it shut down due to staffing concerns. It was only operational for nine days.
In light of the ACLU’s lawsuit, Travis County said it will start implementing counsel at first appearance again with two trial shifts next week and more in May. In a statement, the county acknowledged the impact of having counsel before the initial hearing:
“By implementing CAFA, we can help make our community safer and more resilient by stabilizing families and reducing the amount of time a person spends in jail after an arrest and while awaiting a trial.”
But the ACLU of Texas said this response is a slap in the face after not providing this counsel for decades to defendants.
“This is a really sluggish response after years of excuses and very little action,” Hudson said.
Hudson said implementing CAFA is something the county is set up to do and could start immediately if it so chooses.
“The baby steps we’ve seen are inadequate, and it leaves the vast majority of people without attorneys at these hearings, which they need, and that’s constitutionally required,” Hudson said.
The ACLU also said Texas is not the only state that’s been slow to recognize this constitutional right. The organization already has similar pending litigation in Oklahoma, Oregon and Utah.