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County courts serve up weak plan for attorneys

August 26, 2018

Let’s be clear: Better pay for court-appointed attorneys who handle misdemeanor cases in Bexar County is long overdue. But it is meaningless if that pay does not come with real oversight and changes to a demonstratively broken system.

Our concern is Bexar County’s Courts at Law judges have delivered on a pay increase without meaningfully addressing that all-important oversight. The judges have signed an order boosting compensation for misdemeanor cases from a $140 flat fee to a $180 flat fee, among other fee changes. Beyond this, however, things get murky.

What would proper oversight of private court-appointed attorneys include? Guarantees they will promptly meet with their clients and dedicate more time to their cases beyond entering pleas. Monitoring caseloads. Tracking outcomes. Gathering data to compare the performances of court-appointed attorneys with their counterparts in the Bexar County Public Defender’s Office. Developing a training and mentoring program for new attorneys on the misdemeanor appointment wheel.

Bexar County’s commissioners, who set the budget, are discussing these very ideas. But, the county’s courts-at-law judges have been vague.

For example, Bexar County Judge John A. Longoria, the administrative judge for these misdemeanor courts, told us he thought oversight was part of this plan.

“I think it’s locked in with it,” he said.

But he could not describe what that oversight might be.

Longoria referred us to Judge Tommy Stolhandske, whom he described as the architect of the pay increase. But Stolhandske refused to do an interview about the pay increase, citing our ongoing endorsement interviews with his colleagues on the bench. He didn’t want to disrespect them, he said. It was a perplexing response since this is a decision to spend public money.

He did say there would be reforms to the county’s new 48-hour bond review hearings. Reform would be welcome, and celebrated, since court-appointed attorneys are not showing up for these hearings. But we checked with other county officials who said such language has not been finalized.

This pay increase takes effect Sept. 1, coming on the cusp of the fall election. It was a decision made without any consultation with Bexar County’s Commissioners Court, which is in the midst of its annual budgeting.

Bexar County Judge Nelson Wolff, the chief of Commissioners Court, said this will likely cost the county about $600,000. He viewed the pay raise as overdue, but also hollow if it lacks oversight.

As we have chronicled in our “Unequal Justice” series, court-appointed attorneys do deserve better pay. We compared years of state data, and Bexar County consistently pays the least per indigent case among Texas’ urban counties.

Consider: In fiscal 2017, El Paso, Tarrant and Harris counties all spent more than $600 per indigent case. Dallas County spent $551 per case. Travis County spent $450 per case. Bexar spent $316.

Although Bexar is cheap, it still spends millions. In fiscal 2017, the county spent more than $13 million on private attorneys to provide indigent defense, including nearly $2.5 million on misdemeanors.

In studying caseload data, we found several attorneys with more than 400 or 500 cases in a given year. Experts have said that’s far too high.

We also found numerous instances where attorneys handled more than recommended caseloads from Texas A&M University’s Public Policy Research Institute.

To ignore these dynamics, but then provide a modest increase in pay, would be to perpetuate a broken system. True reform would couple a larger pay increase with a structure that incentivizes work and provides oversight and resources to court-appointed attorneys. Compensation could be based on itemization, with a cap, to demonstrate necessary defense work.

A better way can be found in Lubbock County, which uses a managed assigned-counsel program. Under such a program, an office independent of the judiciary appoints counsel, monitors caseloads and pays attorneys. In Lubbock County, the cost per indigent case in 2017 was about $440, according to state data. Again, Bexar spent $316 per case in the same time period.

Real change means coordinating with Commissioners Court on funding increases. It means visiting Lubbock County to see how that system works. It means creating oversight over the performance of private court-appointed attorneys.

This is a modest and overdue pay increase, but, absent other concrete reforms, it’s not real change.

This editorial is part of the Unequal Justice series, which explores the inequities in Bexar County’s criminal justice system and how they can be fixed.

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