ACLU Sues Demanding Attorneys Be Present at Initial Bail Hearings

An ACLU report on Travis County bail hearings includes this illustration, which depicts, “an uncounseled person attempting to virtually communicate with a judge by talking to a computer screen through the meal tray slot in a cell.” (Photo by ACLU)

If you’re arrested in Travis County, you’ll soon find yourself before a judge. In that hearing, the judge will decide whether there was enough reason to arrest you in the first place, and if there was, how much you’ll have to pay to get out of jail. One thing you can be certain of: You won’t have a defense attorney at your side.

Travis County hasn’t allowed defenders into these initial bail hearings for a long time. And for years, the sheriff, county commissioners, public defenders, and judges have all been in agreement that providing detainees with Counsel at First Appearance (CAFA) would be an improvement. The road to implementation has been bumpy, but now an ACLU lawsuit could kick the county into gear. In it, the attorneys argue that denying people counsel at these initial bail hearings violates their constitutional rights.

The lead plaintiff in this class action lawsuit was arrested April 9. When the unhoused man in his 30s was booked into Travis County Jail, he requested a court-appointed lawyer. As of the following day, when the ACLU filed suit, he remained incarcerated under a pretrial detention order issued against him, without counsel, at his first appearance.

His case is not unusual. A report from the ACLU published this month looked at 686 of these first appearance hearings from January 15 to March 15 this year. They found that judges required two-thirds of the people who came before them to pay for release from jail. They also found that in roughly one in three hearings, people made statements without the guidance of an attorney that could impact the outcome of their case. Sometimes, judges were actually prompting these responses. The report quotes a judge in one case asking, “Do you have some good reason for packing heat Downtown?” and in another, “I really have no idea why you two old guys are fighting. Why are you fighting, sir?”

In some cases, the ACLU observed judges talking to detained people who were still in holding cells via Zoom. In these cases, people would be “kneeling or contorting their
bodies to maintain view of the screen” through the meal tray slot in the cell door, the report said. In some hearings, judges told detainees that they would likely be released from jail for free if a lawyer argued for them, but without a lawyer present the judge would instead issue a bond costing several hundred dollars for release.

On one Thursday during the ACLU’s observation period, a judge told a detainee they likely wouldn’t see a court-appointed attorney for four or five days. “[That attorney] can get you out on bond for free. If you need to get out before Monday or Tuesday, then the going rate to get out of jail is 5-10% of the bond amount, so in your case it would be $750 and $1,500.”

“A few days in jail is a big deal,” the ACLU’s Trisha Trigilio told the Chronicle. “People can lose their jobs, people scramble to arrange for child care – and we’re inflicting this unnecessary suffering.”

In March, 37 organizations including the ACLU of Texas sent a letter to Travis County officials calling for immediate implementation of Counsel at First Appearance. Now, the county has announced two, eight-hour test shifts. The ACLU says that’s not enough. Trigilio calls it “a sluggish response that follows two years of excuses and delays.”

The suit makes three main arguments: First, they allege Travis County is violating the Sixth Amendment right to counsel – they argue first appearances are a critical stage in the criminal justice process, so that Sixth Amendment right should kick in. Second, they make a due-process claim, arguing that it’s fundamentally unfair for judges to tell a person that they have both a right to remain silent and a right to be heard on their bail determination, but a lawyer will not advise them on how to use those rights. The third is an equal protection claim: In short, those who can afford a lawyer may receive advocacy outside of the courtroom early on, while those who can’t experience a different process.