ACLU of Texas sues Travis County over failure to provide lawyers at bail hearings

The American Civil Liberties Union of Texas and a New York-based law firm have sued Travis County for failing to provide lawyers at bail hearings, arguing that the county has violated arrestees’ constitutional rights to legal counsel.

The class action lawsuit, filed in federal court Wednesday with the law firm Weil, Gotshal & Manges, came after sustained pressure from advocacy organizations and the county's announcement of a limited pilot program to provide counsel to people who are arrested at their first appearance in court.

In Travis County, an arrestee is not provided a lawyer during magistration, the hearing in which a municipal judge sets bail and release conditions. Counsel at first appearance has long been an issue for local officials and Austin defense attorneys, though plans to institute it languished after a short-lived 2022 pilot program was canceled due to a staffing shortage at the sheriff's office.

Advocates for the program were galvanized last month by Texas Senate Bill 4, which would allow state and local police to arrest migrants and empower judges who conduct magistration to give deportation orders. The advocates said the absence of counsel at these hearings would particularly jeopardize people who are undocumented. The law is currently on hold as a legal battle over whether it can take effect is ongoing.

"The lack of counsel at magistration fatally undermines the fairness of criminal proceedings in Travis County," the lawsuit argues.

The lawsuit's named plaintiff is Skylor Johnson, 38, who was in the Travis County Jail as of Thursday night, according to county records. Johnson, whom the lawsuit describes as experiencing homelessness, was arrested April 9 and is being held on a theft charge and two Class C misdemeanors — one for failing to appear in court. According to his arrest affidavit, Johnson told a police officer that he had taken copper wire from the property of a closed business and hoped to sell it for at least $100.

Johnson appeared at his bail hearing without a lawyer and was waiting to be appointed one when the lawsuit was filed, according to the complaint. Johnson's lawyers, by filing a class action suit, are seeking to represent all people detained at the Travis County Jail awaiting magistration who cannot afford a lawyer.

County Judge Andy Brown previously told the American-Statesman that the county planned to provide counsel at first appearance during two test shifts in late April and would pursue widespread implementation afterward.

Savannah Kumar, an attorney at the ACLU of Texas, said that proposal did not go far enough.

"What has been offered is simply not a solution that will help everyone who needs it in Travis County," Kumar said.

In a statement, Travis County spokesperson Hector Nieto said the county is committed to providing counsel at first appearance.

"Given recently identified challenges to implementation, our teams quickly pivoted. On April 23rd and 25th, Travis County will pilot the first CAFA (counsel at first appearance) test shifts, with four test shifts to follow in May. We want to build on that success as soon as possible," Nieto said. "We will continue to work with our partners at the City of Austin, the Travis County Sheriff’s Office, and our prosecutors and defenders for the successful implementation of CAFA as soon as feasible.”

The ACLU lawsuit argues that having a lawyer at a bail hearing "significantly" increases the chance of release and decreases the amount of pretrial time spent in jail, which it says causes "irreparable harm." Research has shown that pretrial detention increases the likelihood of a conviction, most often through a guilty plea.

During a court-watching program established by the ACLU of Texas, University of Texas law students observed magistration hearings from January 2024 to March 2024. Twenty-nine percent of people with no legal representation whom students observed made statements during magistration that could have harmed their case, according to the ACLU.

The lawsuit asked the court to rule that Travis County is constitutionally obligated to provide counsel at first appearance.

In 2018, the ACLU of Texas filed a class action lawsuit against Galveston County, and in 2019, a federal judge issued a temporary injunction, ordering that the county provide lawyers at bail hearings.

This article originally appeared on Austin American-Statesman: Travis County sued by ACLU over lack of counsel at first appearance