Texas Court System Struggles With Whether Indigent Defendants Should Have Counsel at Bail Hearings

A criminal prosecution typically begins with an arrest, and whether or not a defendant must remain in jail while they await trial depends on whether a judge or magistrate sets bail. This happens at a bail hearing shortly after the arrest. The Eighth Amendment to the U.S. Constitution prohibits excessive bail, and the Sixth Amendment guarantees the right to counsel in criminal cases. The state must provide counsel to indigent defendants, but not every indigent defendant in Texas gets a lawyer at their bail hearing. In Houston, the state’s largest city and second-largest metropolitan area, judges and other county officials have been accused of improperly denying defendants’ right to counsel, resulting in massive numbers of people charged with minor, nonviolent offenses remaining incarcerated because they cannot afford bail.

According to a report in the Houston Chronicle from early 2016, bail hearings in Harris County consist of arrestees appearing before a magistrate, who is actually in a different room and communicates with the inmate via television monitors. A prosecutor attends the hearings, but defense attorneys are not provided for indigent defendants. The magistrate reportedly sets bail based on a set of guidelines that look at the charge and the individual’s criminal record, but not factors like the person’s health or family responsibilities. Inmates who cannot afford attorneys are left on their own to argue against a prosecutor for lower bail.

The Harris County Public Defender has harshly criticized this system, stating that “an adversarial system cannot function when only one side shows up.” Even prosecutors have reportedly agreed to seek reforms that give more—or some—consideration to the constitutional rights of indigent defendants during bail hearings. Many judges, however, have opposed reform efforts, with one district judge reportedly saying that providing public defenders at bail hearings is not necessary because the bail hearing is not a “critical stage” of the case. Considering that the bail hearing determines whether or not a person can return to their life while the case proceeds, before the state has met its burden of proving guilt beyond a reasonable doubt, it certainly seems like a critical stage for most people.

The Chronicle has reported that county officials submitted a proposal for a grant that would provide the city with $2 million per year to reduce the jail population. County officials have estimated that at least 1,800 inmates are “unnecessarily jailed,” at a cost to the county of about $380,000 per day. The grant proposal originally included defense attorneys for indigent defendants at bail hearings, but multiple district and county judges objected to this provision. A compromise provision reportedly included in the final proposal would only provide attorneys to “mentally ill ‘frequent detainee’ defendants charged with misdemeanors.”

Criminal justice reform advocates have not waited to see if the county improves conditions on its own. A federal lawsuit is challenging Harris County’s entire bail hearing procedure. The suit was filed on behalf of a 22 year-old single mother who remained in jail because she could not afford her $2,500 bond, and who alleges that the magistrate did not take any aspect of her life, such as her young daughter, into account when setting her bail. The case is still pending in a Houston federal court.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Michael J. Brown, a board-certified drug crime attorney, fights for the rights of people charged with alleged offenses in West Texas state and federal courts. To schedule a confidential consultation with an experienced and skilled criminal justice advocate, contact us today online or at (432) 687-5157.

More Blog Posts:

How the Misdemeanor Criminal Justice System Leads to Numerous Injustices in Texas and Around the Country, Texas Criminal Lawyer Blog, May 5, 2016

When Debt Collection Became a Federal Case in Texas and Resulted in an Arrest, Texas Criminal Lawyer Blog, April 8, 2016

Federal Prosecutors Assert Jurisdiction Across International Borders in Fraud Case, Texas Criminal Lawyer Blog, December 23, 2015


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