In Travis County, a fight over bail hearings has big stakes for criminal defendants

In Travis County, the magistration process—the initial bail hearing after someone is arrested—isn’t cinematic. Arrestees are either led to a small room within the jail’s central booking area, or a Travis County Sheriff’s Office (TCSO) employee might bring a computer to their holding cell. At the end of a short conversation, during which the arrestee can either remain silent or try to plead their case to get released on a personal bond instead of cash or surety bail, a magistrate—a judge who handles pre-trial hearings—determines the conditions of release. These routine hearings can have huge implications beyond determining how long someone will spend in jail (and the potential collateral damages like job loss) or how much they’ll have to pay to a bail bonds firm. If an arrestee chooses to plead their case at magistration, anything they say can be used against them in court. The U.S. Supreme Court has held that people have the right to an attorney at the magistration, also known as arraignment, stage. Yet most Texas counties don’t guarantee free attorneys at these early hearings for people who can’t pay.

“There is a constitutional right to counsel at a critical stage in a criminal case,” said ACLU of Texas staff attorney Savannah Kumar. “Unfortunately, constitutional rights are not always realized for people, even when those rights are firmly established.” In a bid to change this status quo, the Texas ACLU sued Travis County last week, alleging the county’s practices during magistration are unconstitutional. The federal suit, filed alongside the international law firm Weil, Gotshal & Manges LLP, stems from the fact that, in Travis County, arrestees who can’t afford private attorneys are sent before magistrate judges without first speaking to a court-appointed lawyer. These hearings often result in high bail amounts that mean they’ll stay in jail until their trial—or until a lawyer can convince a judge to let them out. The suit asks the court to hold that Travis County’s practice is improper, which would force the county to take immediate action. “The lack of counsel at magistration fatally undermines the fairness of criminal proceedings in Travis County,” states the lawsuit. The question of whether lawyers are guaranteed at magistration is particularly critical amid Texas’ ongoing efforts to implement Senate Bill 4, currently blocked by the courts. The law, if it takes effect, could allow magistrates to effectively order the removal of undocumented arrestees as early as their magistration hearing.