Federal judge orders Galveston County to have defense lawyers at bail-setting hearings

Add Galveston to the list of Texas counties that have been court ordered to change their bail practices.

A federal district judge on Wednesday issued a temporary injunction in a 2018 lawsuit where attorneys for inmates have called Galveston County’s money bail system discriminatory against poor criminal defendants. The court’s order doesn’t target the entire pretrial system — which has largely changed since the suit was filed after federal rulings against Harris County. But it requires poor arrestees to have a lawyer at their first court appearance, where their bail is set to determine the monetary or other conditions under which an arrestee can be released from jail before trial.

The ACLU of Texas, which represents Galveston County inmates in the lawsuit, said in a statement after the order that it was the first court in the country to conclude that the Sixth Amendment, which guarantees a right to counsel, requires defense attorneys to be provided at initial bail-setting hearings.

“It’s a matter of basic fairness that you should get a lawyer before a judge decides whether to lock you in jail,” said Trisha Trigilio, senior staff attorney for the ACLU of Texas. “Unsurprisingly, without lawyers to advocate for their release, many people wind up in jail who shouldn’t be there. And even a short time in jail can have devastating repercussions on someone’s life.”

The Galveston County District Attorney’s Office and the felony judges in the county had opposed the order when it was proposed by a magistrate judge last month — calling it an “impermissible and unjustified expansion of the Sixth Amendment.” Shortly after the order Wednesday, the felony judges asked the U.S. district judge to delay implementation of his order for 30 days to avoid the risk of “plunging the current system into chaos.”

The district judge set a phone conference for Thursday morning, but the magistrate judge said last month the order would only mean placing one defense attorney in initial bail hearings to be available for all the arrestees on the judge’s docket. Neither the district attorney’s office nor the Texas Attorney General’s Office, which is representing the district judges, immediately responded to requests for comment Wednesday. (Update: On Thursday, the judge refused to delay the order for 30 days, setting its effective date for Sept. 25).

Galveston is the third Texas county to be placed under a federal order for its bail practices. Both Harris and Dallas County’s bail systems have been deemed unconstitutional in federal court, with judges knocking practices where a defendant's access to cash determines whether or not they are released from jail before trial. Harris County has since dramatically transformed its pretrial release system for misdemeanor defendants — including having defense attorneys at the initial bail hearing, and officials recently proposed a settlement to end litigation. Dallas County has begun implementing some changes, but felony judges, which are also represented by the Texas attorney general, have appealed the order.

Galveston’s lawsuit began with Aaron Booth, 38, who was arrested in April 2018 on a felony drug possession charge. Under Galveston County’s pretrial process at the time, a prosecutor recommended a money bail amount of $20,000 based on a schedule maintained by the district attorney’s office, according to court records. Hours after his arrest, Booth had his first court appearance, where the judicial officer automatically adopted the recommended bail amount based solely on the charge without considering his finances.

Booth couldn’t afford to pay for his release, and he wasn’t given a chance to request a court-appointed attorney until after his bail hearing. He then spent 54 days in jail, not yet convicted of a crime, before he and his attorney were able to argue before the court for a lower bail amount. (Ultimately, he was sentenced to 100 days in jail, convicted of possessing less than one gram of a controlled substance, according to court records.)

Since the lawsuit was filed — and as the two most populous counties in the state were repeatedly slammed by federal judges for their bail practices — Galveston County has transformed its pretrial practices. The district attorney’s office still recommends bail amounts from a schedule, but the judicial officer setting bail now has financial information the defendant provided before the first court appearance. Defendants who want to request a lower bond amount for financial reasons can get a second bail review hearing, typically within 12 hours of their first court appearance, where a defense attorney is present to represent all the defendants before the judge in that time slot.

U.S. District Judge George Hanks Jr.’s injunction, however, said the county needs to have a lawyer not just at the review hearings, but at the initial court appearance. He clarified that the order applies to those arrested without warrants and that are first seen in court through Galveston County jail. Hanks adopted the recommendation of magistrate judge Andrew Edison, who said having a defense attorney at a hearing where the court determines how, if at all, to release a defendant before trial, is “a no-brainer.”

“Unrepresented defendants, especially those that have had no experience in the criminal justice system, are in no position at an initial bail hearing to present the best, most persuasive case on why they should be released pending trial,” Edison wrote in his recommendation to Hanks last month.

The district court judges have argued that having a defense attorney at the initial hearing would “do nothing but add complexity and more time” to the initial hearings, potentially delaying release of defendants while waiting for lawyers or a financial determination. Prosecutors would also want to attend the initial hearings, adding a heavy burden to District Attorney Jack Roady’s office, he claimed in a filing. They argue that it is enough to have defense attorneys at the bail review hearings that generally happen about 12 hours after the initial appearance.

The judges weren’t convinced. Edison noted that “it is hard to fathom how this could be problematic,” since Galveston County has already provided a defense attorney for the review hearings which happen just as often as initial bail hearings. The court has one court-appointed attorney to handle review hearings and be available for all the defendants going before the judge, and then an individual attorney is appointed to handle the rest of each defendant's case.

“All Galveston County needs to do is provide counsel to indigent defendants at the initial bail hearing, just 12 hours earlier than it currently does,” Edison wrote.