Travis County’s first-appearance counsel program has provided an attorney at bail-setting hearings to 99% of eligible defendants since January, according to The Austin Chronicle, citing county compliance reports. The result follows a lawsuit over access to lawyers at those hearings. But counsel coverage is only one measure of compliance: the settlement requires publicly accessible magistrations subject to exceptions, while county reporting also describes efforts to improve documentation.
The Counsel at First Appearance program, or CAFA, provides attorneys at bail-setting hearings. The right’s legal context predates the local settlement: in Rothgery v. Gillespie County, the U.S. Supreme Court held that the Sixth Amendment right to counsel attaches at an initial appearance where a person is informed of the accusation and their liberty is restricted.
Two measures, different gaps
The settlement requires magistration to occur in a publicly accessible courtroom, subject to exceptions including certain medical, emergency, and safety circumstances. The Chronicle’s account of county reports shows that the venue measure does not track the same thing as attorney presence. In April, 2,409 people were eligible for CAFA, and 236 magistrations took place outside the public courtroom. The reported reasons included mental-health-related safety risks in 75 cases and defendants declining a public hearing in 67; documentation was not immediately accessible for 29 of the non-public proceedings.
Those figures do not establish that everyone in a non-public hearing lacked a lawyer. Conversely, the overall 99% counsel rate does not resolve the reported overnight gap: the county does not staff CAFA during the C shift, which begins after 11 p.m., and reported 20 cases from April through July in which defendants went without counsel because of the hour, the Chronicle reported.
Documentation remains another unresolved measure. County reports recorded 19 cell-side magistrations without provided documentation in each of May and June, according to the Chronicle. By July, the county had broken out more specific labels for non-public proceedings, including hospital, medical, and safety-related categories. The Chronicle also reported that March’s records listed 329 people as ineligible under a broad “other” category, leaving the basis for those classifications unclear from that label alone.
Taken together, the reported figures show substantial counsel coverage alongside exceptions and recordkeeping that make some aspects of compliance difficult to evaluate. The Chronicle reports that the ACLU of Texas will monitor compliance with the settlement through 2032. The published data described here do not, by themselves, explain every exception or establish how the broadly labeled eligibility decisions were made.
