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.
Before filing suit, the ACLU released a report on Travis County, which included observations from nearly 700 magistration hearings in 2024.
On the whole, the researchers found that defendants were “forced into hearings where their rights were jeopardized, they had difficulty communicating, and they couldn’t contest or even know why judges were keeping them locked in jail,” the report said.
In about a third of cases, arrestees said something to the judge that researchers said could ultimately harm their criminal case. In one case, a magistrate judge asked the arrestee, “Do you have some good reason for packing heat downtown?” In another, the judge had to stop an arrestee from continuing to incriminate themselves, saying, “I think you’ve kind of already said some things against your self-interest that may be used against you upstairs. So that’s why I’m stopping you.”
In multiple instances, magistrate judges outright asked questions about the incident, the allegations, and arrestees’ citizenship—of particular concern in light of the potential repercussions of SB 4.
If an arrestee can pay the bail amount set by a judge, they’ll be released from jail. If they show up to the required court appearances, they’ll get that money back. In other cases, people can employ the services of a bail bonds firm, which requires a non-refundable fee—usually 10 percent of the total bail. The bondspeople will then post the remaining amount to the court with the promise that their client will show up. “When paying a bondsman, people presumed to be innocent will never get the money back, regardless of the outcome of the case—even if the arrest was a case of mistaken identity or if charges are dropped,” the report said.
“I do think there is a willingness to right the wrong, and it’s just messy while we can’t.”
For many, no bond option is affordable, and the alternative is to stay in jail or plead guilty.
“It is a constitutional right, and a matter of fairness that you should get a lawyer before a judge decides whether to lock you in jail,” Nick Hudson, policy strategist with the ACLU, told the Texas Observer. “Without lawyers to advocate for their release, many people wind up in jail who should not be there.”
Court watchers found that in 66 percent of hearings, judges required payment for release. The average bail amount between mid-January and mid-March 2024 in Travis County was nearly $16,000. In other cases, judges allow personal bonds—which don’t require payment. But these are extremely difficult to get without the help of a lawyer, something judges “frequently acknowledged” in magistration hearings in the county, per the report.
In many cases, rather than being taken to the magistration room to see a judge in person, a defendant will be arraigned virtually from their holding cell. Researchers found these meetings were rife with visible problems, including some instances in which corrections officers spoke on arrestees’ behalf if the stream couldn’t pick up defendants’ voices or the defendant seemed unable to speak.
The setup itself was cumbersome, often with cameras set up outside the cell and pointed through meal tray slots.
“People inside the cells were observed lying or sitting in bed in a cell when their virtual hearing suddenly began,” the report found. “In many cases, [the setup required] people to attempt to participate in the virtual hearing while kneeling or contorting their bodies to maintain view of the screen through the narrow hole.”
Travis County Chief Public Defender Adeola Ogunkeyede told the Observer Monday that this virtual process is not fair for the accused.
“I will not interview a human being through a meal slot in a cell door,” Ogunkeyede said. “We had concerns about whether or not those folks [being arraigned via video] were even able to assess their rights and understand. The beauty of having lawyers there … is to be able to speak up in those situations.”
In October of last year, representatives from the ACLU began communicating with county officials about implementing Counsel at First Appearance (CAFA), a moniker the organization and advocates use to describe guaranteed legal representation at the magistration stage. Last month, dozens of community groups sent a letter to top county officials—including County Judge Andy Brown, Sheriff Sally Hernandez, and all four county commissioners. In it, they urged officials to develop a concrete plan to implement CAFA in the county.
Public pressure reached a fever pitch at the March 21 county commissioners meeting, where a large number of community members presented public comment. Afterward, Sheriff Hernandez released a letter detailing her office’s efforts to make the program work.
“It’s time to set the record straight. I am for Counsel at First Appearance (CAFA). I’ve been a proponent of it from the word ‘go’,” she wrote.
But there’s a reason that Hernandez, a Democrat, felt the need to correct the record on the issue. Two years ago, Travis County had attempted and failed, through a pilot program with support from Texas A&M, to guarantee attorneys at magistration for arrestees who couldn’t pay. Officials pulled the plug after just nine days.
At the time, the county had secured a $500,000 grant from the Texas A&M Public Policy Institute, funded through Arnold Ventures. The funds would help cover fees for the Capital Area Private Defender’s Service, making a trial run of CAFA a reality in the county. In April 2022, the county began its pilot program.
Because it was linked to an academic study, the CAFA shifts were randomized, which Sheriff Sally Hernandez told the Observer made them difficult to staff. At the same time, the county was gearing up to deal with the implications of Senate Bill 6, which would change the bond process. Much of the court system, including trials and hearings, was still virtual, but the shift to in-person was beginning.
“We had a whole bunch of just challenges,” Hernandez said. “Not anybody’s fault, but just—challenges.”
These challenges began to affect the pilot early on. There was no space in the old building for attorneys to meet with arrestees for confidential talks, and when private space could be found, sheriff’s office staff would have to escort arrestees to and from these meetings, and the office was already running short on staff to perform its other duties. In addition, lawyers were trying to think on their feet to make the program work, working to move meetings into the county courthouse next door or set up video feeds for virtual meetings.
“Everybody was frustrated. Everybody was worn out,” Hernandez said. She said five staffers from Central Booking quit under the strain of the increased workload. She told the county that, as it was, the pilot wasn’t sustainable.
Her office would need more staffers to make CAFA feasible, she told county commissioners. She was also severely constrained by the central booking facility, built with few appropriate spaces for confidential meetings. Commissioners approved $1.5 million in work on the courthouse, including renovating a disused courtroom, but plumbing issues stalled that work earlier this year.
A new central booking facility would eventually become a must-have, Hernandez said. (County Judge Brown told the Observer this month that a new booking facility would be possible in the next few years.)
After the pilot fizzled, the county returned the grant money, some of which went to establishing CAFA in other counties, according to Georges Naufal, associate research scientist at A&M and lead CAFA researcher in Texas. He said he and his colleagues have implemented CAFA pilot programs in Hays County and Potter County. Last year, Potter County officially implemented CAFA following a pilot. Researchers there found that people with attorneys at their initial bail hearings spent about six fewer days in jail.
In Travis County, Hernandez has advocated for virtual magistration—having lawyers in a video window during the hearings. Defense lawyers and advocates have largely shot this idea down, but Hernandez told the Observer she still supports virtual CAFA, especially after the county invested in updating the jail facility by adding wifi, among other things.
But Kumar, an attorney with the ACLU, said the quality of virtual representation is worse than in-person. “It’s really hard for a defense attorney to build that trust with their client and to effectively communicate with them and represent them when representation is happening virtually,” she told the Observer.
Naufal said there hasn’t been a robust study into whether in-person CAFA is more effective than virtual representation. Of lawyers researchers have interviewed, the opinion of virtual attorney-client meetings varies.
According to an investigation by the Austin Chronicle, the Austin Police Department last year began quietly discussing with city judges potential plans to launch its own magistration process, either virtually or in a city-run jail. But county officials and district judges fervently opposed the plan, per emails obtained by the Observer. District Judge Cliff Brown said, “I do want to be clear that we are not in favor of its implementation.” The City’s Public Safety Commission has recommended any piloting of outside magistration be “permanently tabled.”
In the weeks before the ACLU filed its lawsuit, Travis County officials finally greenlit a new trial run of CAFA, which County Judge Andy Brown said is fully staffed, for later this month. Hernandez told the Observer her agency is “ready” for the new try.
Travis County Commissioner Ann Howard told the Observer that the county commissioners court and lawyers involved are committed to seeing CAFA implemented in the county. But she said they’ve been “in the hot seat” while they couldn’t “do what [they] know [they] want to do.”
“We’ve got plans to fix the building. If we have a new booking facility in the years to come, we want to build out space so [CAFA] can be provided to people,” Howard said. “I do think there is a willingness to right the wrong, and it’s just messy while we can’t.”
As of late last week, Travis County officials said the test shifts are still scheduled to move forward despite the lawsuit.
If all goes to plan, from 3 p.m. to 11 p.m. on Tuesday, April 23, and Thursday, April 25, all arrestees in Travis County will have access to an attorney at their initial bond hearing. This shift was chosen so as not to conflict with judges’ morning dockets and to be compatible with judges’ and sheriff’s office staff schedules. Capital Area Private Defender Service will provide attorneys for one shift, and the Travis County Public Defender’s Office is set to staff the other. If CAFA were to become permanent, the public defender’s office would only be able to accept 20 to 30 percent of CAFA shifts per year, according to an email obtained by the Observer.
Ogunkeyede said the public defender’s office has allocated staff, including advocates who specialize in mental health, to ensure the process works fairly for arrestees who are experiencing mental health crises.
Hernandez said TCSO has allocated twice as many staff members to the trial shifts as they had in 2022. Attorney-client meetings, rather than taking place in the Travis County Jail’s staff break room, will be held in rooms at the nearby courthouse.
“We’re taking a whole different approach,” Hernandez told the Observer. “We’re ready to do these test shifts.”
