A program to provide free legal representation to poor people at the Travis County Jail was recently put on pause by Sheriff Sally Hernandez over staffing concerns. Now, the sheriff’s office, the county and district attorneys, and criminal defense groups are scrambling to save it.

The $500,000 program is meant to provide court-appointed attorneys to indigent suspects appearing before a judge for the first time after their arrest, when charges are decided and bail is set. This first appearance is called magistration; having an attorney present for it is known variously as “representation at magistration” or “counsel at first appearance,” or CAFA. Every large county in Texas, aside from Travis, provides CAFA to some extent. Because ours doesn’t, the program is seen as an important step in addressing wealth-based unfairness in our local legal system; those with money can always have an attorney by their side at magistration.

The Public Policy Research Institute at Texas A&M created the program in concert with the Travis County Public Defender’s Office and the Capital Area Private Defenders Service. As originally designed, it would provide CAFA to 50 percent of indigent people booked into the county jail over a 12-month period. The other 50 percent wouldn’t receive the counsel; at the end of the year, researchers would examine outcomes for the two groups, including recidivism, rates of release, and the types and dollar amounts of bonds the two groups received.

The program was underway at the jail from April 8-17. But at a Commissioners Court meeting on April 26, Hernandez explained that though she supports the program she does not have adequate staffing to facilitate it. “It’s not a matter of ‘want to,’” Hernandez told the commissioners. “It’s a matter of ‘we can’t.’ We have put so much pressure on our staff that they can’t take it anymore.”

Hernandez said that traditionally, she needed two corrections officers for magistration. With CAFA, as it was operating before being shut down, she needed eight. Sheriff’s Office spokesperson Kristen Dark shared a statement with the Chronicle elaborating on the problem: “When CAFA is active, there are multiple attorneys seeking to meet with arrestees in person. There may also be [prosecutors] seeking virtual meetings, in addition to the judges, who are also virtual. These simultaneous meetings, some in person and some virtual, require additional staff. Managing the docket and all the paperwork that accompanies the process also requires additional administrative staffing.”

Both prosecutors and defenders have stressed the need for CAFA for years; it is extremely important to the offices of County Attorney Delia Garza and District Attorney José Garza, as well as the Public Defender’s Office, which celebrated its two’year anniversary in April. That office was originally meant to administer CAFA but was unable to get the funding to take it on. Chief Public Defender Adeola Ogunkeyede told the Chronicle that the county must begin providing this representation, whether it comes through this pilot program or not: “My experience has shown me that outside of a trial – and trials are rare – that the first appearance that a person makes, where bail is first determined, is the most important appearance of the case.” She added that there is a great deal of research supporting this view.

Bradley Hargis, executive director of the CAPDS, a group of private attorneys who represent poor people facing criminal charges, offered an example of how CAFA can work at the Commissioners Court meeting on April 26. He described how his attorneys, during the pilot program’s nine days in effect, were able to correct a mistake in a client’s case at magistration, lowering the offense from a felony to a misdemeanor and allowing the client to make bail. “Had this been charged correctly, the person likely would have been given a personal bond,” Hargis said. “[But] the judge had no way of knowing that, absent the defense counsel being there, doing the research, interviewing the client.”

Hargis has worked for three years with the A&M researchers who designed the pilot program; if it is resurrected, CAPDS will be the recipient of the $500,000 in funding. He has remained in regular contact with the informal working group that smoothed the program’s implementation in the months leading up to its debut. This group includes representatives of the Sheriff’s Office, the Commissioners Court, the CA and DA, the Public Defender’s Office, and the A&M research team, along with CAPDS.

The working group has met weekly since the program ended, looking for ways to address Hernandez’s concerns. The terms of the program originally called for attorneys to be available to clients for eight-hour shifts, five days a week. At the April Commissioners Court meeting, Hernandez said her corrections officers might be able to accommodate two eight-hour shifts per month. Sources say the working group is hoping to modify the study’s design so that it can remain a legitimate vehicle for research while reducing the number of people who receive CAFA; the lowest the researchers think they could go would be two eight-hour shifts per week. The working group is also examining strategies that could reduce the load on the sheriff’s office, including lengthening or shortening shifts and conducting them at different intervals.

In her remarks to the Commissioners Court, Hernandez said that Central Booking, where arrestees are first taken to meet with attorneys and judges, is another reason she had to pause the program. The sheriff has long described the facility at the foot of the jail tower on 11th Street as small and outdated, and Dark offered context: “Central Booking is one of the most volatile and potentially dangerous areas of our jail facility. Arrestees are coming into our facility in various states of mental anguish, agitation, and drug-induced psychosis. They can be combative, confused, sick, or violent. It falls upon our corrections officers to ensure that the attorneys who facilitate the CAFA program aren’t assaulted.”

The Sheriff’s Office added that Central Booking was not constructed with confidential spaces for attorney-client meetings and, being built from cinder block, isn’t easily modified. “Central Booking is a place where mistakes can be devastating, even deadly,” Hernandez said. “We simply must step back, assess the situation we’re in, and come up with a plan that works for everyone.”

Advocates acknowledge that Central Booking is a problem, but they also believe that the county’s failure to provide CAFA is a violation of arrestees’ Constitutional rights – something that could lead to a lawsuit. They don’t think Travis County can afford to wait years for a new facility. “Capital improvement planning to build new facilities at the government sometimes takes a decade or more, right?” Ogunkeyede said. “The question is, what needs to come first? The rights or the building? And it has to be the rights.”

Others note the irony of the Sheriff ending a program that would help alleviate concerns about staffing and space. “The jail population is up 50% in the last year,” said Amanda Woog, executive director of the Texas Fair Defense Project. “And this is one of the only programs aimed at reducing the jail population. So it’s extremely shortsighted of the sheriff to pull the program.”

Hargis believes the sheriff is sincerely invested in finding a solution, but he too would like to see a heightened appreciation of the importance of CAFA. “I just don’t know if everyone is digging as deep as they could,” he said. “We’re approaching this from, ‘How do we make this succeed?’ – instead of approaching it from, ‘It has to happen.’ Do you see the difference there? We’re considering what we can do instead of what we have to do.”