County’s bail case legal fees hit $170K

Outside attorneys’ defense has cost more than plan to reform system

About $170,000 in tax money has been paid to outside attorneys to defend Harris Country officials from a federal civil rights lawsuit alleging that the bail bond system discriminates against poor people, records show.

That’s more than the cost of a six-month pilot project that would have provided attorneys for indigent misdemeanor offenders at bond hearings — a proposed reform critics say could have helped the county avert being sued in the first place, according to interviews and documents obtained by the Chronicle through public information requests.

A Washington, D.C.based nonprofit organization, Equal Justice Under Law, in May challenged Harris County’s bail system as unlawful on behalf of poor offenders accused of minor crimes, including Maranda ODonnell, a 22-year-old single mother jailed for driving without a license. The group argued that the county’s system of locking up the vast majority of people accused of misdemeanor charges who cannot afford to pay bond results in unequal treatment that violates their constitutional rights to equal protection under the law.

Equal Justice Under Law, which previously has targeted what it calls “money bail” practices in more than 17 communities nationwide, originally targeted the county sheriff, who oversees the jail, and the hearing officers who set bond for people facing minor charges. But now, county leaders are being asked to spend more money to hire additional

lawyers for 16 misdemeanor judges who were recently added as defendants.

The rising legal fees are not unusually high for outside counsel on a complex lawsuit, officials said. And outside lawyers may be necessary since the individual county leaders being sued — including judges and the sheriff — have publicly disagreed about how to reform the system, said Robert Schuwerk, a legal ethicist and author who is a retired University of Houston law professor. But county officials should have discussed those fees in advance and should have known from the first that if they pushed to litigate instead of reach a compromise that costs would escalate, he said.

“We may have a division of interests — it may be that the judges are saying no expense is too high for another branch to pay — the judges are not having to come up with the legal fees, I assume,” Schuwerk said. Even though an outside firm might be needed, Schuwerk said the county attorney’s own staff might also have better insight into the players and knowledge of the court system needed to reach a less costly settlement.

Critics, like state Sen. Rodney Ellis, argue that the county attor- ney should have handled the case himself and the money could have been better spent fixing the broken bail system.

“It’s the height of hypocrisy to spend taxpayers’ money in such a wasteful way,” Ellis said. “The county attorney is very capable and can adequately represent the position of the county in this matter. There is a certain irony in judges wanting to have their own lawyers to represent them as they refuse to provide legal representation to people who are charged with a crime with our criminal justice system.” ‘Wise to seek counsel’

The county hired Gardere Wynne Sewell LLP to defend county officials, a firm that includes a former county attorney and has contributed through its PAC to county officials’ campaigns, public records show. The firm did not respond to requests for comment. The bills the Chronicle obtained covered work from May to July but did not provide specific breakdowns of the firm’s hourly fees or duties.

Harris County commissioners last week considered whether to hire additional outside counsel for the judges but deferred action. First Assistant County Attorney Robert Soard said he expected commissioners to take the matter up at their next meeting Sept. 27. If commissioners don’t hire outside counsel, the judges would be represented by the county attorney’s office, Soard said. The question of when to hire is one of efficiency, Soard said.

“We could do it on our own,” he said. “It’s just a matter of how we reallocate resources.” He said spending roughly $170,000 so far on outside counsel on such a complex lawsuit is not unusual.

Precinct 3 Commissioner Steve Radack said he considered it “wise to seek outside counsel in this particular case.” County Judge Ed Emmett declined comment, though Emmett said through a spokesman that he has long opposed overuse of outside counsel. The 16 judges either declined comment on the outside counsel question or did not respond to requests for comment.

Precinct 2 Commissioner Jack Morman declined comment, as did Precinct 1 Commissioner Gene Locke. Precinct 4 Commissioner Jack Cagle did not respond.

Harris County court officials and prosecutors have long relied on a rigid bond schedule that generally fixes the amount of bail for all defendants based on the type of offense as well as criminal history.

Bail for misdemeanors ranges from $500 to $5,000, according to the schedules. Those bail hearings take place via video link-ups with hearing officers. Few defendants are freed on so-called personal bonds based on inability to pay and a promise to appear for later court dates. Some misdemeanor offenders have been held on higher bonds without explanation, and dozens of sick or mentally ill people have bonds set without appearing before a judge at all, according to records and interviews.

All of those issues contribute an even bigger problem: crowding in the Harris County jail. Reforms only on paper

In April, county officials announced the launch of a $5.3 million plan, including a $2 million grant from the MacArthur Foundation, that includes a diversion court, a new county court coordinator and a revamped system that supposedly will make it easier for defendants to gain release without posting bail. But so far, many planned reforms remain only on paper.

Jay Jenkins, an attorney for the nonprofit Texas Criminal Justice Coalition and a reform advocate, says a proposal to provide attorneys to the poor at their initial bond hearings in order to improve the system has been floated for the last two years. But the initiative has never been funded, either as part of the county’s grant-funded reform programs or the county commissioner’s budget.

The county’s June 2016 estimate for providing attorneys in a proposed six-month pilot project would have cost $164,250, according to a copy of a proposal obtained through a public information act request.

Though the reforms requested by advocates in the civil suit are broader, if county officials had adopted such a program Jenkins said he believes that the county would have had “a much better chance of avoiding litigation altogether.”

“Right now, the county is taking taxpayer money and burning all this taxpayer money to defend a system that is costing taxpayers hundreds of millions of dollars already, and rather than engage in constructive talks about reform they’re just digging their heels,” Jenkins said.

He noted that if the county ends up losing the lawsuit, it will be forced to foot the bill both for its own attorneys and for those of the nonprofit that is suing it for violating the constitutional rights of the poor. Brian Rogers contributed to this

report.