Harris County has a broken court system
It’d be easy to make Jeanie Ortiz the poster child for all that ails the Harris County court system.
After all, when you scroll through the indigent defense data for Texas, Ortiz is the only defense attorney in the county who raked in more than $1 million in taxpayer dollars representing low-income defendants last year. A sum that large would make you think that Ortiz, a former Harris County prosecutor, is somehow gaming the system to her advantage, making money hand over fist off of hundreds of poor people who otherwise could not afford a lawyer.
In reality, Ortiz hasn’t broken any laws. In fact, several Harris County courtroom observers assured us part of the reason she is in such high demand — having worked 400 felony and 200 misdemeanor cases last year — is because she is good at her job, even if her annual caseload far exceeds what any legal expert would consider reasonable.
The problem isn't that Ortiz is making too much money; it's that the county has a broken court appointment system with little oversight, one in which private attorneys are essentially doing the job that, in other places, is entrusted mostly to public defenders. Yet, in Harris County in 2022, private court-appointed attorneys were paid $60 million, nearly double the entire budget for the county Public Defender’s Office.
As the Chronicle’s Neena Satija reported recently, the money the county paid Ortiz could have been spent on hiring at least five full-time public defenders. Of course, being actual county employees, all five would be subject to strict caseload limits, which could mean better representation but could also mean the county’s dollar wouldn’t go as far.
All criminal defendants have a right to a lawyer, per longstanding case law, but in a county where more than half the people accused of crimes cannot afford one, finding quality representation is critical. Public defenders, studies show, get better outcomes than private defense attorneys, leading to reduced jail time, case time, criminal records and recidivism. That holds true in Harris County, where public defenders have higher acquittal and dismissal rates than appointed counsel, yet because of caseload limits they can’t compete with the private attorneys who get appointments. Currently, county public defenders are assigned to only 15 percent of felony cases and average roughly 128 cases per year. By comparison, private attorneys can work hundreds of cases every year.
Part of the problem is a lack of resources. For all of the good work that the Harris County public defenders do, for the office to eventually reach its goal of handling half of all felony appointments, it will need more money to hire more attorneys. Chief Public Defender Alex Bunin told the editorial board that he is currently discussing his funding request with the county budget office and noted that the county commissioners generally support increasing their budget.
While we certainly urge the county commissioners to honor Bunin’s funding request so they can take on more indigent cases, more money won’t solve the problem of judges handpicking attorneys.
Texas’ constitution gives judges the ultimate authority to assign indigent defendants an attorney, and to decide how much that attorney gets paid. In the
past that has led to allegations that Harris County judges play favorites, assigning cases to attorneys who curry favor in part by contributing to their political campaigns. Since attorneys earn a flat fee per case, these select few would take massive numbers of indigent appointments to pad their income.
Even if you assume that most of the current district court judges run their courtrooms with the utmost integrity, many of them rely on their court coordinators to assign cases as part of a flawed random appointment system — known as “the wheel” — generated by a computer.
Yet with the massive volume of cases being processed in the felony courts every day, it is nearly impossible for judges to keep track of whether certain attorneys are receiving a disproportionate number of appointments.
“Most of them don’t know day to day, how many cases a lawyer has over the year, they don’t know how much total they’re getting paid,” Bunin says. “It’s really a systemic problem that precedes every judge and every lawyer practicing in Harris County.”
The county’s misdemeanor courts have implemented a better system, launching a “managed assigned counsel” program where 170 private attorneys are specifically trained to continue receiving court appointments. The goal of the
MAC system is to steer appointments to attorneys who are not stretched thin with high caseloads. Attorneys submit requests to hire investigators or experts to MAC supervisors, who also have the power to discipline lawyers who don’t meet standards.
In July 2021, the felony judges in Harris County agreed to set up a MAC system in the district courts. Yet since then, a new slate of judges was elected. The current judges have not yet reached a consensus — a two-thirds supermajority — on whether to actually implement the program and what the rules should be for the felony courts, since most other MAC systems are smaller. Of the five Texas counties that have implemented a MAC system, only Bexar County's covers misdemeanor, felony and juvenile cases, and its program is barely a year old.
Yet the results from these programs are encouraging. The handful of MACs in Texas have seen better rates of compliance with court orders and substance abuse treatment plans, and significant cost savings. One study from the Texas Center for Justice & Equity found that Harris County could save a felony indigent defendant at least five years of incarceration if a MAC program was implemented and potentially billions of dollars in related costs. Many indigent defendants represented by attorneys who are spread too thin end up pleading guilty to whatever deal they are offered in the interest of expediency rather than justice, leading to excessive incarceration on the taxpayers’ dime.
Considering the myriad problems the county has had with managing its overcrowded jail population — from suicides, violent assaults and inadequate treatment of mentally ill defendants — felony judges should be jumping at any opportunity to create a more efficient system to lower the jail population and help clear the county’s case backlog overall. If that leads to fewer private attorneys lining their pockets with our tax dollars, that’s a trade-off plenty of county residents would sign up for.