APD Has Been Quietly Planning for the City to Run Its Own Bail Hearings for Arrestees

While city and county elected officials have been looking for ways early in the booking process to keep people out of jail who don’t need to be there, emails obtained by the Chronicle through a public information request show that the Austin Police Department has been working behind the scenes with municipal judges on a separate plan that could undermine those efforts.

In as soon as two months, APD and the city judges, who are appointed by City Council, aim to launch a pilot program for its own “virtual magistration,” an APD spokesperson told the Chronicle in response to questions about the obtained emails. (Scroll to end of story to see emails.)

Magistration is the very first court hearing that occurs after an arrest, where judges set bail conditions and decide if there is probable cause for an arrest. These brief hearings play an outsized role in our justice system. Judges setting bail conditions indirectly decide the population of the overcrowded Travis County Jail. And for arrested people, even a short jail stay can contribute to them losing employment, housing, or custody of their children. That’s why the city and county have committed to improving processes at Travis County’s Central Booking Facility, in ways that would keep more people out of jail unnecessarily and provide more robust services to people facing jail time.

Neither APD nor court officials have published any detailed plans on the program, and both declined to answer our questions about what it could look like. But interviews with people involved in or briefed on development of the plan, and emails obtained by the Chronicle through a public information request, have shed some light on the program – including that, at one point, the program contemplated detaining people at a new city-run jail.

An APD spokesperson told us a new “detention facility” is no longer under consideration, but beyond that, stakeholders know very little about what the program would look like, or how APD expects it would serve the community. The emails show APD attempted to set up meetings with several county entities that would need to be involved to launch such a program – the Travis County and District Attorney Offices, the Travis County and District Clerk Offices, and the Travis County Sheriff’s Office, which runs the Central Booking facility where magistration occurs. Only one meeting actually happened, with the County Attorney’s Office, staff at each of the county offices tell us.

“I am very concerned about this idea given that neither APD nor Municipal Court have published a robust plan for making sure these are high-quality magistrations,” said Bradley Hargis, executive director of Capital Area Private Defender Service, the local nonprofit that provides defense attorneys to indigent clients. “Stakeholders and local elected officials are moving in a direction where judges would have better and more information at hearings, and that defendants would have better advocacy at those hearings. But, based on what we know, this plan will move us in the opposite direction, which is very disappointing.”

“I am very concerned about this idea given that neither APD nor Municipal Court have published a robust plan for making sure these are high-quality magistrations.” – Bradley Hargis, executive director of Capital Area Private Defender Service

APD’s Goals

How a city-run magistration would streamline the process is unclear. The city’s Municipal Court already handles magistration at Central Booking, as they’re contracted by the county to do so. Through another contract called an Interlocal Agreement, the city pays TCSO $7 million per year to operate Central Booking.

For years, APD officials have said it takes too long to book people into jail at Central Booking. The goal of the pilot, an APD spokesperson told us Tuesday, Sept. 26, is twofold: “to save money … [and] to find the speediest way to magistrate our arrestees. This new process will get our officers back on the streets as fast as possible.” APD and the Municipal Court (Presiding Judge Sherry Statman declined our request for an interview) plan to have the pilot “up and running by late fall or early January,” per the APD spokesperson, but key questions about how they will realize proposed cost savings or efficiency improvements remain unanswered.

The booking process can take hours, though delays are often related to APD’s own slowness in turning information about the arrest over to judges. Before a person can be magistrated, police must turn in an affidavit telling the judge there was enough evidence to merit an arrest. (That’s part of our most basic due process rights, which guarantee Americans cannot be jailed for no reason.)

In some counties, police are required to bring those affidavits to booking at the same time that they arrive with an arrestee. In Travis County, we allow them the maximum time possible to bring in the PC – 24 hours for a misdemeanor or 48 for a felony. Attorneys and sheriff’s office staff have told the Chronicle the average PC turnaround is roughly six hours, but PC drop-offs right before deadline are not unheard of.

In one email, an APD sergeant acknowledges one issue with city-run magistration would be “keeping patrol officers consistent on doing [Probable Cause Affidavits (PC)] in a timely manner.” In some cases, law enforcement officials prefer slow PC filing, because it allows patrol officers to get back on the street faster. An officer working during a busy Saturday night might prefer, or be instructed, to write a PC during their quiet Sunday morning shift so they can maximize hours on the street during busy times.

The county conducts a variety of screenings and interviews (collecting information on financial standing, mental health, etc.) to give judges a fuller picture of the person coming before them, and those screenings can also contribute to a slow booking process. Cutting out some, or all, of those services might speed up booking, but without defense attorneys present, judges would be left with very little individualized information to consider in setting a person’s bail conditions.

It’s possible that the city would provide those services separate from the county, but Travis County Attorney Delia Garza doesn’t think that makes much sense. “Any plans to duplicate magistration services and potentially build another jail, or whatever they want to call a facility that holds arrestees, seems wasteful of limited taxpayer dollars and it doesn’t align with Austin-Travis County values,” Garza told us. “We should instead concentrate on expanding limited resources that keep people out of jail.”

“Any plans to duplicate magistration services and potentially build another jail, or whatever they want to call a facility that holds arrestees, seems wasteful of limited taxpayer dollars and it doesn’t align with Austin-Travis County values.” – Travis County Attorney Delia Garza

A relatively new element in booking is “arrest review” implemented by the Travis County and District Attorney Offices – that’s where prosecutors from each office review the probable cause affidavits filed by arresting officers to determine if the charge is one the state will prosecute or if more evidence is needed to warrant an arrest. Arrest review serves two purposes: It can strengthen cases that the state intends to prosecute and it can keep people from experiencing unnecessary jail stays, with the idea being that a person should not be jailed for a crime the state does not intend to prosecute.

APD has resisted the arrest review policies implemented by county prosecutors. The current booking process is also costly, APD says, as the department pays the sheriff’s office.

In response to our questions seeking more information about the pilot, the APD spokesperson said much is “to be determined” and that many details are still being ironed out. Emails we obtained through public information request make clear that the pilot is intended to make magistration for arrests made by APD fully virtual – and fully controlled by the city.

“The idea here is to determine if we can approve PCs, set bond amounts and conditions, and magistrate defendants completely virtually using Cloud Gavel,” Austin Municipal Court Presiding Judge Sherry Statman wrote to APD Chief of Staff Jeff Greenwalt and other police and municipal court staff. (CloudGavel is software APD currently uses to process search warrants electronically, but it could also be used to electronically sign paperwork committing someone to jail – the one piece of magistration that municipal judges are not yet able to do virtually).

In the same email, sent July 10, Statman identifies “a few hurdles” standing in the way of making magistration fully virtual. One is how to ensure judges can access an arrestee’s Public Safety Report and Criminal History documents in a secure way (currently, these documents are produced and delivered to municipal judges by the county’s pretrial staff). “The other major hurdle” Statman continued, “is finding a place that defendants can be temporarily held while the virtual paperwork then magistration occurs.”

In other words, the city contemplated some kind of detention facility – like a municipal jail – to hold arrestees while they await magistration. Another email – sent July 19 from an APD sergeant to a handful of detectives and the lieutenant tasked with serving as a liaison with Travis County for developing the pilot – outlines how important such a facility would be to make city-run magistration possible. “First and upmost [sic] is we need a detention center (one of considerable size with accommodations..ie.. [sic] bathrooms etc.),” the sergeant wrote, “and the resources (personnel) to run and maintain a secure facility.”

The APD spokesperson told us “APD is no longer considering [a new detention facility] as an option” and “that the department aims to be as cost-effective as possible.” But the spokesperson declined to say where people awaiting their magistration would be detained (the July email from Statman suggests repurposing existing space at the Municipal Court or Downtown Austin Community Court as potential options). But city-run magisration is not a new concept. In 2014, APD pitched a similar program that would have used a detention facility and vans operated by armed civilians that would be stationed around the city and could serve as mobile magistration centers. That plan didn’t take off. Before the new millennium, magistration was handled at a city-run jail next to the old Municipal Court building located at Seventh and I-35.

APD’s spokesperson also declined to say if the potential cost savings of a city-run magistration program would come from reducing services provided to arrestees before their bail hearing. It is also unclear if the magistration pilot would be able to accommodate defense counsel being present at their bail hearing – a practice known as “counsel at first appearance,” that is currently not on offer at Central Booking, but is something that City Council, Travis County Commissioners, and other stakeholders hope to restart in the future.

“Regarding your follow-up questions,” the spokesperson wrote, “we are still ironing out the details.”

Below are emails between officials at the Austin Police Department, Municipal Court, and various Travis County officials discussing the “virtual magistration” pilot program, obtained by the Chronicle through a public information request. We have redacted names, titles, and contact information for individuals who are not high-ranking public or elected officials.

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