Hays County Court at Law No. 1 judge candidates Anna Martinez Boling, left, and Robert Updegrove, right. Photos by Sean Batura.
By SEAN BATURA
On July 18, 2009, Hays County Court at Law No. 1 Judge Howard Warner died of cancer after sitting at that bench for 27 years.
A highly politicized process to fill the bench ensued. On Aug. 26, 2009, Hays County commissioners picked San Marcos attorney and former Hays County Democratic Party chair Anna Martinez Boling in a 4-1 vote along straight party lines.
The position is up for election on Nov. 2. The candidates are Boling, who now has sat at the bench for more than a year, against Republican challenger Robert Updegrove, a local attorney.
San Marcos Local news recently interviewed the candidates for Hays County Court at Law No. 1 judge. The questions and answers are presented unedited, except for punctuation and publication style.
San Marcos Local News: As the county becomes more urbanized and more densely-populated, how does that change the role of the county court at law, if at all?
Robert Updegrove: As we grow, there’s an increase both in probate that the court handles — there’s a growth in the civil and there’s growth in criminal. However, this court has been busier in the past than it is right now. I think it’s going to impact it a little bit and there may be, in the future, some need for a third county court at law, but not as we stand today.
Anna Boling: I don’t see it changing the role at all. We still deal with all Class A and Class B misdemeanors, we deal with all civil amounts in controversy between $10,000 and $100,000, and we still deal with all the juvenile criminal cases. The challenge will be to accommodate more people with the same resources that we have. I don’t anticipate, anytime soon, getting any kind of budget increase to hire more staff, nor do I anticipate the County Court at law No. 3 to help take up the slack. It’s still going to stay the same. We’re just going to have to, as far as budget, we’re just going to have to be a little more savvy when it comes to technology and efficiency in the office to be able to accommodate. As it is, we have between 400 and 600 criminal cases every Thursday docket. And, hopefully, that’s not going to increase. We’ll be able to kind of manage that, I think.
SMLN: What are the justice system needs of Hays County as relates to the county Court at Law No. 1?
Boling: As it relates to county Court at Law No. 1 only, I’d say we need to probably make better use of the technology that we have, upgrade it. I think that it’s — I’m fortunate to work in a department that I believe is very well run and very efficient already. But there’s always room for improvement. My experience on the court over the past year has been — I’ve been gathering information and been trying to assess what we do and why we do it so that we can work more efficiently. I’ve got a list of things I’d like to tackle and at the top of the list is technology. As far as the legal system itself, I think it would be beneficial to everyone if we can — all the departments — can work together and talk about the problems we have. You know, the jail is constantly calling us and we’re always on top of our cases that are — defendants that are sitting in jail waiting for their cases to be heard. So if they (jail staff) get close to getting overcrowded, they’ll call us. And although we check every week on the list of defendants that haven’t made bail to see if any of them qualify for PR (personal recognizance) bond, we do take into account the jail’s needs, and they know they can count on us to either assess more defendants to see if they qualify for PR bond, or bring them to court quicker. Once a week, we have a jail docket day, and if we need to, we’ll have two or three jail docket days. So, my experience with county court at law is that we’re on the ball when it comes to trying to help the other departments, especially with the jail. I think just processing defendants — the budgets are going to have to be tweaked. I think after this new census comes in, we’re going to be looking at maybe a 160,000, roughly, population in Hays County. And that’s bound to cause an increase in our workload. Also, we’re going to have to accommodate ‘Settlement Week,’ and what that is, is a week of trying to send people to negotiate or mediate their cases. That happens with the civil cases, but in Travis County, they do a lot with the criminal cases as well. So we’re going to be taking a look at how other jurisdictions do settlement week. We have to accommodate that, and if that means asking for some money from commissioners court, it’s just a reality that we’re going to have to deal with. So, not quite sure how we’re going to do that, but we’re looking at it and we’re aware that it’s coming.
Updegrove: From what I’ve seen here, this court runs fairly efficiently. However, there is a problem that is a perception problem for the court. We deal with repetitive people all the time down there. I have people on my docket that know the system as well as anyone, my clients. They are different than the normal average person that’s never been through a system, never been arrested. These people know what they can get by with at the court. And they push it to the absolute limit. And what happens is that you get the prosecution which may or may not be overburdened — I don’t know what they’re staffing needs are — but we go in there as defense attorneys and our job is to represent our client. And what’s necessarily best for us is not necessarily best for the court. And so what happens is that you get repeat offenders in the criminal section and they know how far they can push the court without having any repercussions. They don’t have the respect for the court that probably they need. And you see other courts around — in Caldwell County, (County Court at Law) Judge (Edward) Jarrett demands respect. He gives respect as well, but they understand what’s expected of them and cases move faster. When you go to Williamson County, it’s the same kind of deal. Here, the emphasis is money-driven a lot of times. We represent indigent clients, and it’s difficult for them to come up with a lot of money. There are ways to — money is not the ultimate goal. Justice is, all the time. So some of these people that get put on probation, I understand court costs are fixed, but fines and other things can be negotiated out, community service instead. And that would speed up part of our problem with our docket besides the problem we have with no respect.
SMLN: How would you balance the need for speedy case processing with the needs of justice, given that speed is not necessarily an indicator of a court system’s fairness?
Updegrove: What we have in the civil world, there’s a difference between civil and criminal. If you’re in the civil, because of the number of cases that are in the criminal court — criminal court takes precedence over civil court. And so, this court — county Court at Law 1 and 2 both handle criminal and civil, probate and juvenile. And so when they get ranked in order of stuff, you have to take care of the criminal before you take care of the civil. And in the civil, forcing people to go to mediation to work things out before it goes to trial, basically having a standing order of the court that says you’ve got to do that, resolves a lot of the cases without the need for going to a hearing or having a trial on the merits of something. In misdemeanor court, when you’re talking about criminal stuff, yeah, there’s some things that can help speed this thing along that don’t affect somebody’s right to a fair trial, or to prejudice them or to prejudice the state. By getting discovery handed out quickly, lots of counties have standing orders on discovery for criminal cases. And the standing orders say, you hand it to them, no questions asked, and it basically sets a time limit moving forward. But in those counties, when they show up to court, they actually have a case filed against them. In this court, you can show up and not have a case filed. You could have been arrested, magistrated, and show up and not have a case filed yet. But a lot of these things are — the problem is not necessarily one that’s a global problem. It’s a lot with what the options are that are available to the court or to the people that are — for instance, I do veterans stuff. My boss has done ‘weekend warriors,’ I call it, National Guard stuff — he does wounded warriors. So when a wounded warrior comes up, we do representation of them and it’s one of the things that we go up and we tell the prosecutors, ‘Look, he’s a veteran.’ They don’t have a veterans docket here. A lot of things that speed up the thing are things that could be easily addressed by the court rather than have an attorney do it or an attorney not do it. I don’t know that all attorneys do it, but first time offenders and drug cases that are just minor drug things — a lot of those things are sped along by the fact that a defense attorney goes up and tells someone something. And the court could easily set up a first time drug offenders program. If this is your first time with possession of marijuana, this is what the deal is. If this is the first time that you’re in front of us for virtually anything, they can set up some guidelines that would enable people to know what they’re looking at easily. Most of the time it’s not a question of whether or not they’re going to take a deal because most of them resolve themselves. It would speed up that because they know that there’s an option other than sitting there. The DA (district attorney) tells you something and you get a lawyer and the DA tells the lawyer something. It’s a protracted kind of system that doesn’t necessarily have to be that way.
Boling: We’re very mindful of how quickly our cases go through — or how slowly, I guess, they go through. We keep tabs on how many resets, for what reason. We try to move cases along as quickly as possible. But sometimes the defendants and their attorneys, it’s their strategy to delay as much as possible. Sometimes it’s the prosecution’s strategy to delay as much as possible. Our job, as judges, is to move our docket along as quickly as possible and in as efficient a manner as possible. I think for the most part we don’t have — the speedy trial issue comes up many times when people are sitting in jail for a long time, and we really don’t have too much of that going on. If anybody who has a case in our court is sitting in jail for an extraordinarily long time, it’s because they have a felony pending, or they have a parole violation they’re being held on, or there’s something else going on other than our case. So I think, for the most part, we move things along as quickly as possible. Right now, our jury trials are being set six to nine months out. We’re slowly catching up — they were even longer than that. As you know, I was appointed because Judge Warner passed away and the court got a little bit behind during that time because he was ill a lot. We’re hoping to make it 90 days out. I don’t know if the prosecution or the defense will be happy about having to set their cases for trial 90 days out, but that’s our goal.
SMLN: The Hays County Commissioners Court has initiated a process to begin implementing at least some of the MGT Study’s recommendations regarding the county justice system. What would your role be in that process?
Boling: We’ve already been to a couple of meetings with them. We have found, in county court at law, that many of the things that they recommended we’re already doing. And we’re doing even more than some of the things they recommended. So we’re bringing that up in the meetings, because we’re obviously already doing a lot of the things, if not most of the things, that they recommended. But the focus will be how we can do that more efficiently, I think. I don’t see anything new. There are a couple of things that are being suggested that we do, and it may or may not be a good fit for Hays County. We’re looking into that, we’re keeping an open mind. And for all the things that we already do, which is a majority, I think, of their recommendations, we’re just looking at how we can more efficiently implement those things.
Updegrove: Streamlining the justice system from a jail standpoint is an easy enough thing. It is just a matter of keeping track of those people that are incarcerated that are on their docket. They can push these people to a docket anytime. It’s the judge’s docket. People that sit in jail for an extended period of time on misdemeanors either haven’t been through the system or haven’t asked anyone at the jail about it, because what happens is that they are in jail a little bit, they ask, “Can you afford a lawyer, do you want a lawyer?” I have had clients that have sat in jail before I got appointed 30 days, 40 days on a case that they wouldn’t have spent 15 or 20 days had they asked for a lawyer. And so, part of it is insuring that at magistration, they get pushed towards that “do you want a lawyer or are you going to hire a lawyer?” kind of deal. And the other one is the court just managing the docket a little bit better and watching the jail, those people that are in jail. That one’s relatively easy to streamline. I don’t know why it would have a problem other than it’s not — I don’t think it’s the court that’s got the problem.
SMLN: What do you think of the Hays County Dispute Resolution Center (DRC)? What role, if any, do you think the county Court at Law No. 1 judge ought to play in encouraging use of the DRC?
Updegrove: Well, the DRC is one of Anna’s projects. The Dispute Resolution Center is a wonderful thing. I’m a mediator. I think it’s a wonderful way to resolve civil cases. It also limits the number of decisions that have to be made by the court. Most courts have a standing order in place that says, “On civil cases, you mediate first, unless you send in the paper that says I don’t want to mediate because — whatever the reason is.” But this court down here has had for years the basic understanding that if I put in a motion to mediate, that the court orders the mediation. The mediation center here is a good thing because it gives us an opportunity to use cheaper priced mediators to resolve this. A lot of mediators that we use in Austin or San Antonio — we use several of them around here. (The DRC) provides a second alternative to do it. From a civil standpoint, great thing.
Boling: I don’t know about encouraging use of the DRC in particular. I’s more mediation. I was a trained mediator before I was appointed (to Court at Law No. 1). I was doing mediation cases specifically related to family and child protective services. I was on the exploratory committee to recommend to the commissioners court whether the DRC was something that our county could sustain or whether it’s good for our county — not sustainability as much as, is it something our county needs. I think there are a lot of needs out there. A lot of people go to the dispute resolution center in Austin, and at the rate that our county is going, I think it’s something we can use. I am on the advisory council for the dispute resolution center along with (428th District Court) Judge (Bill) Henry, and I think (Precinct 2 Justice of the Peace Beth) Smith has resigned recently, and there’s some other family lawyers and some other lay people and mediators that are on the board. We’re just advisory. I’m not on the active board. Most criminal cases — about 45 percent of our (county Court at Law No. 1) cases are civil, about 55 percent are criminal. And we’re roughly 50/50 if you start looking at the juvenile cases, as well, because juvenile cases are kind of quasi-criminal. They’re based on the (Texas) Family Code, so kind of family, kind of criminal. Most criminal cases are negotiated out between the prosecution and defense attorneys. We don’t, that I know of, ever send people to mediation for criminal cases. In the civil realm, that’s different. Most of the time, people will voluntarily go to mediation in civil cases. Sometimes we’ve ordered mediations in probate matters, some of the civil litigation, suits on account or things like that we may order to mediation. For the most part, we’re approving a mediation request. They choose their own mediators. Unless they cannot agree on a mediator, we don’t usually appoint a mediator — a particular person or a particular facility like our center, like the DRC. Most attorneys pick their own mediators. If they cannot agree, then they bring it to us and we decide who’s going to mediate. Usually, each side has their three preferences and we have to choose. Rarely does that happen. I don’t feel it’s my place to order someone to a particular mediator if they can agree on something. And a lot of the times those civil cases — especially the probates that are being litigated — are amounts in controversy higher than the Dispute Resolution Center would accommodate, anyway. They have a certain income guideline that they don’t go above, for the most part. I’d say that the really serious litigation in civil cases, they’re not going to qualify to use the DRC. But I think it’s there, and it serves a purpose in the community. I think that I would recommend that they use it for landlord-tenant, neighbor on neighbor, go to clergy, go to therapists, and talk to the construction industry and to employee-employer type of relations. I don’t anticipate that family cases would really support — as far as family attorneys are concerned — would support the DRC. They need to go out into the community and try to get a different clientele.
SMLN: According to the MGT study, an analysis — a “snapshot” — of the Hays County probation population sampling indicates that those being sentenced to probation sentences are appropriate candidates for supervision in the community. According to the MGT study, many criminal justice jurisdictions have alternative placement programs for those incarcerated or on probation. The study states that many of these programs serve as a direct alternative to incarceration, and others have the potential to indirectly reduce the jail population. Alternative placement programs serve a valuable purpose of diverting individuals from the county jail, while still keeping the community safe, according to the study. Individuals in these alternative programs are either closely monitored and supervised or they are housed in facilities other than the county jail while serving their sentences, according to the study. Do you support the county using alternative placement programs for those incarcerated or on probation? Why or Why not? If so, what role does the county court at law judge play in establishing such programs?
Boling: Right now, we work with probation. I think jail is always kind of the last — and should be — the last option. Most of the time, people are placed on probation, and, rather than going to jail, they are sent to either outpatient or inpatient facilities, depending on the kind of case they have. If it’s drug-related or alcohol-related, there are lots of facilities that we work probation with to place people in. Some are 30 days, some are 90 days, some are 180 — there are all levels. Rarely will someone — unless they want to — rarely will someone go straight to jail and hang out in jail their entire term. Most of the time, they are placed on probation, sent to treatment, sent to classes. There are all kinds of classes that we’ll send folks to while they’re on probation, from drug offender programs to family violence programs, prevention programs, anger management programs, there are all kinds of programs. So jail is kind of a last-ditch thing, as far as county court at law is concerned. We do take advantage of as many inpatient and outpatient facilities as are appropriate. Most of the time, if after a probationer has finished their classes or done their inpatient or outpatient treatment, and they still have some time left in their probation, if they mess up, if they commit another crime, they don’t report, for whatever reason they get revoked, then we’re looking at jail time or extending their probation to put them in some kind of treatment program. And that’s always the first option, rather than jail. But, sometimes they choose jail rather than go to the treatment program. The max we can send anybody to jail is a year in the Hays County Jail. It’s not like going to prison and into the prison system. And then the jail gives them — they could be trustees and they get credit, or as long as they stay out of trouble — it’s entirely up to the jail if they’re going to give them credit. But if I send someone to jail for one year, they may be out in six months or less depending on whether they’re — because a lot of time they give them two-for-one credit as long as they keep their nose clean and don’t cause problems. Or if they’re trustees, they may get out even sooner. That’s totally up to the jail. So, sometimes I think the defense lawyers, some of them encourage their clients to do the treatment because they need it and they know they have family members who want them in this treatment. And some say, “Look, you’ll be out in 15-30 days as opposed to 60-90 in a treatment program. You pick.” And sometimes they choose to not have to stick around in a treatment program for an extended period of time, and then still be on probation after that. And you have to pay a probation fee every month, you have to report, you can’t drink or be doing drugs, you’re being tested, so those are a lot of restrictions that people don’t like.
Updegrove: Alternatives to probation — here in Texas there’s not a lot of alternatives. You either — there are several ways to do things in a criminal case. You can either get a conviction, you can get deferred — deferred prosecution, you can get probation or deferred adjudication probation. There are alternatives to sending someone to jail, yes. There’s always an alternative — that’s what probation is. Typically, when you see a sentence that comes out of Hays County — a DWI will, say, get 180 days probated for x number of months. The probation time that is put on there is an alternative to going and sitting in the jail. There are people that probation doesn’t work for them, and then you’re dealing with jail time. But there are people on probation that really don’t need to be on supervised probation. There is deferred — there is unsupervised probation that you can be on. Lots of people that have drug problems or drug history or mental problems can be sent to one of the rehabs, or to Scheib (Mental Health Center), or to somebody that treats them, rather than put them on probation — while they’re on probation, then they’re away from the system rather than incarceration. But there’s no alternatives that I’m aware of that allow you to — once the criminal justice system has determined or found you guilty or you pled guilty to something — that does away with incarceration time or probation time.
SMLN: According to the MGT study, several different stakeholders during interviews conducted as part of the study mentioned “the number of continuances granted; particularly in the district courts.” According to the study, the feeling among the criminal justice community was that the delays were either because the defense attorney was not prepared or present or as a delay tactic. The transportation section of the Hays County Sheriff’s Office provided documentation on escorting an average of 180 inmates per month to the courts, an indication that a large percentage of the cases are being reset. The MGT study recommends that continuances be monitored by case and attorney and that the information be readily available to the court. Do you agree with these recommendations, and if so, why, and if not, why not, and what other recommendations would you make, if any?
Updegrove: Well, as a defense attorney, the continuances that are granted are not only on my part. They are not only on the defense’s part. Continuances are caused by the state, they are caused by the state, they are caused by the prosecution, they are caused by DPS (Texas Department of Public Safety) when it comes to lab work getting back. There are lots of reasons why there are continuances. It’s not an attorney not being ready. Most of the time it is just — like I said, we do defense work and our number one job right now is to provide a zealous defense for my client. And lots of times a zealous defense for my client means as many days away from something they can get, you now? Lots of time, yeah, we get continuances, we put things on jury docket, things are pushed out as long as they can go because it’s in the best interest of our client. Can the court monitor that? Yeah, sure. But most of the time, these people aren’t the ones sitting in jail. The ones that are sitting in jail, the number of continuances there are — in district court — few and far between. They give you one or two pretrials, which is standard. That way you can get your discovery. And then they put you put you on a plea docket, and then it’s off to the jury docket. And then, the jury docket takes one case a week, sometimes they’ll take two cases in a week. And that’s all that goes. Just simply because of numbers. There’s no way to get enough judges, enough jury people in there, panel people. There’s not enough — there just isn’t enough courtroom space if people are on that jury docket for a short period of time and if everybody went. When you look at the jury docket every week, there’ll be 20 names or 25 names. So part of the continuance is based on just the lack of court space or lack of judges when it gets to that. County court has the same thing. The only difference between county court and district court is in county court, the maximum range of punishment is a year in jail. And so once somebody has sat in jail for 35 or 40 days, 50 days, they get an offer that basically tells them, “Time served.” It’s really not as big a problem in county court as it is in district court, where you have somebody in there that’s facing 20 or 50 or 100 years. It’s difficult to tell them, “We’ll give you time served.” That just doesn’t happen. The state’s not going to do that. So, I think it’s a bigger problem in the district court. But there’s not a problem with watching the docket. These things have a way of working them out. Ninety-plus percent work their way out.
Boling: I don’t know about felony, I don’t know where the numbers came from, but I know that when we grant a continuance — it sounds like they’re dealing with the jail population versus defendants in general. So, I guess it’s a two-part response. Defendants who are not in jail — again, sometimes it’s a strategy to ask for continuances. We don’t like to grant them unless there’s a good reason. Gathering money, taking classes, those kinds of things, something happened, someone’s ill, the witness is not available, an officer’s on vacation and can’t come in to testify. So, there are different reasons to grant continuances for trial and to reset just on a regular docket for a plea. As far as defendants in jail, that sounds like that’s what they’re referring to. We don’t have that many. The ones that we have, we stay on the defense attorneys and the prosecution if we have a person in jail that’s been in jail too long in our court. Again, they may be in jail longer because there’s a felony pending or something. We, our staff, calls the defense lawyers because we don’t want to waste the jail’s time bringing somebody over that’s not going to be able to take care of the cases, that’s not ready to take care of their case. We have two different dockets. One is they’re just going to come over because they’ve been in jail too long and this is their time appearance in court from the jail. Then we have another docket. We may bring some of the defendants in earlier or later depending on what the defense attorneys are requesting and what the prosecution is doing with the case. So, I feel like sometimes we have, we may have between five and 20 defendants come to court every Thursday afternoon from the jail. And a good majority of those take care of their cases the first time. They’re not continued. I’d say that we also have an extra docket day if we have to, or two per week, depending on how many people are sitting in jail out of our court. I don’t know about district court, I don’t know under what circumstances they — in fact, sometimes they take care of their cases in felony court, district court, and then they ask us if they can bring that same defendant over to our court to see if we have time to take care of their case as well. So, we’ll accommodate them so they don’t have to be brought back from the jail. They can take care of everything at once. So, one of us will drop what we’re doing to make sure that we accommodate those defendants that are taking care of their felony cases who also want to also take care of their misdemeanor cases. So, we’re very flexible when it comes to that because we’re very aware that the jail — it’s a lot of resources that’s expended to bring someone over from the jail.
SMLN: According to the MGT study, electronic monitoring (ELM) is sometimes used as condition of probation, which allows offenders that need close monitoring to be supervised without being incarcerated and occupying jail beds. Local jails also can operate ELM or GPS monitoring programs and can, with court approval, release qualifying, low risk inmates from jail on electronic home monitoring. According to the MGT study, neither the Hays County probation office nor the sheriff’s office is operating any type of ELM or GPS monitoring program for offenders. The MGT study recommended that the commissioners court determine the feasibility of establishing a local ELM program as a way of keeping its jail population numbers down while developing alternative supervision options that can keep the community safe. What is your stance with regard to electronic monitoring and the development of alternative supervision options — should the county implement either or both, and if so, why, and if not, why not? If so, what role does the county court at law judge play in establishing such programs?
Boling: I know that (Hays County Court at Law No. 2) Judge (Linda) Rodriguez has implemented ELM at least once since I’ve been there. Or maybe it was already in place. I’m not sure who monitors that. You’re looking at — I think that there’s some people that maybe would be better served by that kind of a system than being in jail. Especially if they can work, if they have jobs they can go to work and be monitored. If you’re worried they’re going to flee or something — with those leg monitors, you can track them. That would necessitate a whole other division, I think, department, either within the sheriff’s department or within maybe probation. I don’t know how it works. I’d have to take a look at what the programs are in different counties and how they’re used and what their success rate is, how reliable the leg monitors are. I would expect that something like that would be better used in the felony courts than our courts. But I know that it’s not completely out of the question. I know that Judge Rodriguez mentioned to me that she’s only placed one person on that leg monitor. And I don’t know if it was pre-resolution of the case or while that person was on probation. I’m absolutely open to the possibility of using it. But I don’t see that being something that’s going to be really that useful in county court at law. I could see it in felony court, but I don’t know about county court at law. I’d have to take a look at all the numbers and see what the pros and cons are. There are people who sit in jail for a while, but what’s the cost effectiveness of putting it on someone for a month? If it’s something that people are amenable to implementing — I don’t know if the sheriff’s department is or not. If MGT is suggesting that that be looked into, I keep an open mind, and take a look at in what way they’re proposing that it be used, and we’ll have to see if it — each county is different. I’d like to take a look at it and see if it’s something that’s even necessary in our county. I don’t know.
Updegrove: The ankle monitor, that is not something that is used a bunch in this county. It’s used in federal courts a lot. There’s also an ankle monitor that does an alcohol test. That is used in Travis County a lot as an alternative to having somebody sit in jail on DWIs (Driving While Intoxicated charge). Any alternative that keeps the community safe is a good one. They do deep lung devices in vehicles for people with DWIs. That way, when you’re drunk, you’re not out on the road. They can do GPS monitoring to keep people away from assault/family violence cases. Yeah, given that there’s been a study done, I don’t know what the cost would be. But any alternative to keeping them in jail is a good one. While they’re sitting in jail, we pay for it. The community pays for them sitting in jail. And if they’re sitting out on their own and they’re being monitored by an electronic system and the computer watches them and prints out a flag when they do something that they’re not supposed to do, it seems to be a cheaper alternative than them sitting in jail. And what the county court at law judge would do on something like this would be to sentence those people — would be to push the commissioners court for that alternative. I think that the one for the ankle monitor and the DWI, I think those are wonderful things. I think the county should be pushing for those. That ought to be one of the consequences for being arrested for DWI or assault/family violence, that it’s an automatic thing. And the defendant can pay for the monitoring cost. I know that Travis County does that. The deep lung device on a DWI is like $70 a month and the defendant pays for it, the defendant pays to have it installed on his car and the defendant pays for the monitoring.
SMLN: According to the MGT study, the justices have no way of verifying information as to an offender’s residence and employment because there is no pretrial services division in Hays County. Consequently, offenders are seldom released on personal recognizance bond, according to the study. Offenders must secure the services of a bondsman in order to obtain their release, which results in a delay and a cost to the offender or the offender’s family, according to the MGT study. Additionally, there is no bond schedule for guidance on the amount of bond to be set, according to the study. While setting of the bond amount is ultimately the discretion of the judge performing the magistration, the MGT study recommended that the county court at law judges and the district judges develop, in conjunction with the justices of the peace, a bond schedule for the various misdemeanors and felonies for which offenders are commonly arrested in Hays County. While the bond schedule would not be binding on the judges when setting bonds, it would provide some guidance and uniformity. Do you agree with these recommendations, and if so, why, and if not, why not, and what other recommendations would you make?
Boling: I don’t know where they’re getting that, because we do have quite a few PR bonds out and we constantly look at that. Again, they may be referencing district court. Because in county court, we find that when they make a blanket statement sometimes, it doesn’t even apply to us, they’re talking about district court. Most PR bonds are given to people that we can see have long ties to this community, they’ve been living in this area, they have family members in this area. They have a job, they have kids in schools and things like that. So, we can talk to these folks and review their data when we’re deciding. There’s a gentleman by the name of Roger Moore that the bonding companies have hired to give us information about the pros and cons of pretrial services, specifically as they pertain to PR bonds. And that person (Moore) is out of Austin. I recently got the email, and I think most of the judges and the justices did, too. His position is contrary to possibly the MGT recommendation. He thinks that you have more likelihood of people breaking their bond conditions if they’re out on PR bond. He’s got all his reasons and, of course, the PR bond would be — I think in their, MGT’s scenario, would be monitored by, I think, the probation office. So, there are pros and cons. We are looking at that right now. It happens to be a very timely issue right now in the meetings that we’re having, because we just got that information last week from this Roger Moore person. I don’t know who he is. I think he’s a professor. I can’t remember what his credentials were, but he has done extensive studies. We’re looking at how Caldwell — I think Caldwell County has a pretrial services program. I’m not sure if Comal (County) has one. But we’re looking into how those are working and I think we’re all still in discussion right now. As far as preset bonds, I think it’s already being done by default. We have six justices of the peace (JPs) and two municipal court justices, plus there’s at least one, maybe two, municipal court judges that are called in as kind of like a visiting judge to magistrate whenever they need it. And they kind of — everybody sets their own bonds — but we kind of have an idea of how much for a certain case. We talk about the kinds of bonds that maybe are appropriate in certain cases. Some JPs give higher bonds than others. Some make PR in specific cases, and others may not. And there’s room for discussion there, I think. I don’t know about preset bonds because every case is case by case. It depends upon what their criminal history is and whether they have any ties to the community. I don’t know. We’re still talking about it now. I know that we do issue PR bonds out of our court to misdemeanor cases. I don’t know that it’s that commonplace in felony, but I can’t speak to that because I’m kind of — I don’t have any idea what the felony courts do, what the districts court do on bonds. I don’t believe that the justices of the peace are in favor of preset bonds. Judge Rodriguez and I are talking about it with MGT and discussing the pros and cons.
Updegrove: Bond schedules right now for misdemeanor court — I don’t know that there’s a need for that in misdemeanor court. That has been established for years and years. I can tell you within a few dollars — a few hundred dollars, I guess — what somebody’s bond is going to be for a DWI or for possession of marijuana. These things are fairly standardized already. It’s not something where you see a great disparity between one bond and the next bond. Where you see the great disparity between bonds is stuff that happens in the felony court, in district court. There, that may be something that is workable, however, in misdemeanor court, I see lots of PR bonds. As long as you have a tie to the community, you’ve got a local address, on a simple possession of marijuana, there’s lots of people that get PR bonds. I see them get very low bonds or PR bonds on DWIs. The assault/family violence, they generally don’t get PR bonds. But, yeah, I could see that there could be a need for that in felony court. But then you — this kind of ties the hands of somebody that’s a magistrate going, “Well, why did you do something that is greater than what is listed on the thing or why did you go beneath what was listed on the thing?” So, the system here has worked. I understand that there’s people who sit in jail over things. But if they fill out their court-appointed attorney form, if they’re sitting in jail and their family can’t make bond, they’re probably entitled to a court-appointed attorney who can do a bond reduction hearing. They can do a habeas (corpus) within a matter of days. And as far as tying the hands of magistrates, I don’t know that that’s something that I’m in favor of, tying their hands.
SMLN: According to the MGT study, a jail docket is currently held in one of the two county courts-at-law once per week. The MGT study seems to recommend that when the jail population reaches the critical stage, a second jail call may be held. The average length of stay for pretrial misdemeanor offenders is 7.8 days, which is roughly the same length of time as there is between the dockets. Do you agree with this recommendation, and if so, why, and if not, why not, and would you make other recommendations?
Updegrove: I don’t know that MGT is correct on this. Hays County has two county court at law judges. It’s true there is only one jail docket. The jail docket is generally on Thursday afternoon at 1:30, where both courts sit. It’s one right after the other. You get one judge in there for a few minutes while they’re doing the motion for the MGR docket. And then the other judges comes in and does the jail, and then they switch. And we have had several dockets that are specific jail dockets where they bring them over on Fridays as well when they get to that critical mass. Part of that critical mass thing is, I understand transportation is difficult for the county to do at times. There is only a limited number of space at the back of that jail or the back of the courthouse to keep these people. Extra dockets is an easy enough thing to do. It’s a stroke of the pen by the judge and then it’s just a matter of transportation, bringing over the limited number of people that they bring. And they generally limit those people from the jail to under 20.
Boling: This is what I mentioned earlier. It’s stuff that we’re already doing. We already have between one and three jail dockets if we have to a week. It’s not just one of the county courts. Both of us do it. And the way we work it is we kind of tag team. It’s rare that we have three dockets a week, but it’s not unheard of. More often than not, we have two. If the jail calls and says they are reaching a critical number, we get on and start looking to see who we can bring over, and then we call the defense lawyers. We don’t want to waste the jail’s time in bringing anybody over. We call the defense lawyers and the prosecution, the probation office, everybody’s working together to get those folks over and actually do something with their cases. Some defense lawyers politely decline to have their clients brought over for whatever reason. We’re not going to waste the jail’s time in bringing them over. When they (MGT) recommended in one of the meetings that we have two jail dockets a week, well, the problem is, roughly half of our work is civil. So we need time to be able to care of our civil cases, as well. We’re only two courts, so the two of us have to be able to work together. We can’t have one court doing civil and one court be doing criminal because we would constantly be having problems with our docket, so we both do criminal and civil. We’re very accommodating now, and that’s nothing new that they’ve recommended. We do it already. I don’t know how we could be any more efficient at it, though I’m open to suggestions.
SMLN: The MGT study recommends that in addition to the jail misdemeanor docket currently being held, an additional jail misdemeanor docket should be formally added so that as soon as the jail population reaches a certain number it occurs on an automatic basis. This docket should focus on the offenders who have not been able to make bail to determine if a plea is appropriate or whether the offender should be considered for release on personal recognizance bond. As a large number of offenders charged with misdemeanors come in over the weekend, it is recommended that one of the jail docket calls be held on Friday, in order to obtain the release of as many offenders as possible, and that the second docket be held on Monday to review the misdemeanor cases that have come into jail since the previous docket to determine if any of them can be disposed of by plea or whether the offender should be considered for release on personal recognizance bond. Do you agree with these recommendations, and, if so, why, and if not, why not, and would you make other recommendations?
Boling: I don’t agree, because they just have their information wrong. I just don’t — we have our dockets every Thursday. So from Thursday to Friday, I don’t know what difference it would make between Thursday and Friday. We have had dockets on Friday whenever the jail calls and says, “We’re getting close to critical, is there anything y’all could do to relieve?” We will bring them in on Friday and sometimes on Mondays, as well. It just depends on the jail. We stay up on that. The jail, I believe, they know that they have a good relationship with us and they can call us. The bottom underlying this is the prosecution cannot deal with people who want attorneys. They have to wait until they are appointed an attorney. In misdemeanor court, if we get a form one day, by the next day they have the attorney, it’s been evaluated, we do one-to-three-day turnaround, and then the defense lawyers have to contact them, as well. The defense lawyers have a certain amount of time to contact them. Once they contact them, it’ll be up to them whether they want to negotiate or try to get them over to reduce the bond or ask for a PR bond or bring them over to the jail docket. Some people get appointed and they ask us to bring their clients in a week or two earlier than they were scheduled to be. Or, sometimes, we bring them in, depending on the kind of case it is, earlier, and we encourage the defense attorney to come in to negotiate with the prosecution. Because, of course, if the case is going to be dismissed or something else is going to be done with the case, then those people need to be out of jail as quickly as possible. We don’t just put the burden on the defense lawyers. It’s the prosecution, as well. The recommendation of having two courts per week is not realistic, I don’t think. If they want it done every week, we would have one or two people brought over sometimes. I just don’t see that there’s a need right now to have two a week. Plus, they’re not taking into consideration that we’re not a full time criminal court. We have to have hundreds of civil cases, too, if not thousands. So it’s kind of an odd suggestion, in my opinion. But again, I’m taking in all this information and I’ll have a more firm understanding of everything after we get through with all of our meetings.
Updegrove: I’m not sure that the study took into account all the factors here. Whenever a defense attorney asks for an offender to be put on the jail docket, they put that person on the jail docket. And it’s always on that Thursday. If they’re being transported over and the judge is available, they will do them any day of the week, generally. So if district court is running and they can bring somebody over for a misdemeanor, they’ve done that in the past. But having a jail docket on Monday for people who were brought in — if you do one on Friday and you do one on Monday for the people that were brought in over the weekend, magistration of those people that were brought in on Friday night didn’t happen until Saturday morning. Those people that were brought in on Saturday didn’t happen until Sunday morning. And so, trying to get people in that are less than 24 hours in the jail seems rushing things. I think that if, yeah, if they sit there two weeks, yeah. If they sat there a week and they can’t make bond on a nonviolent thing, yeah, somebody needs to do something. But the other part of that is the defendant also has an obligation to these things to go out and to say, you know, “I can’t afford a lawyer, I can’t make bond,” you know. And then have the lawyer work on it, as well. I think that it’s a combination kind of answer. One, I don’t know that we need to have a specific second docket for Monday. Trying to get several dockets on Friday, that’s fine. You can do one Thursday and one on Friday. And if the jail cost — if that’s the biggest issue — if you’re talking Thursday, if you have one on Friday, the most they’re going to spend in jail is five days. Which is shorter than your seven. The other thing it does, it forces the lawyer upon them. Generally, five days is not enough to plead to a defense.
SMLN: Although Hays County has an indigent defense plan in place, judges and defense attorneys interviewed stated that the requirements for Texas’ Fair Defense Act are not always met, states the MGT study. There are several reasons for this, including limited space at the jail, difficulty getting attorneys to accept court appointments, and a lack of pretrial services, according to the study. According to the MGT study, many county employees and officials stated that one reason for such delays was a lack of meeting space at the jail and in the courtroom. According to the study, there are two spaces at the jail where attorneys can meet with their clients, but these spaces are often taken. According to the study, defense attorneys said that even though they have set appointments to meet with clients or prospective clients, there are often issues that delay or prevent the meetings from taking place. Discussions between MGT and defense attorneys, as well as county staff, also provided an indication of why there is a lack of attorneys willing to take court appointments. According to the study, the primary reason stated is the lack of timely payment for services. Attorneys taking court appointments are required to submit a detailed schedule of services to the judge handling the case after the case is completed. According to the study, this presents an undue delay in payment. In addition, once an invoice has been submitted, it is not always paid within 30 days, as required in the Hays County plan. A system should be established to hold appointed attorneys accountable for meeting with the defendants in accordance with the requirements of FDA, states the study. Consideration should also be given to providing additional space and time for attorneys to meet with the defendants at the jail, recommends the study.
Updegrove: On the meeting space at the jail to meet with clients — if your client is sitting in jail, the attorney can meet with the client virtually at any time. Except when probation is in [inaudible]. They have male and female visitation, and as long as it’s not on a visitation day, you can visit anytime, basically, as an attorney. You can just wait for whoever is in front of you. It would be nicer if there were more meeting rooms to meet with them. Ones that necessarily weren’t recorded, you know, attorney-client privilege. There’s a lot of things that are lacking at the jail as far as the ability of an attorney to go out and, within a reasonable amount of time, meet with his client.
Boling: Since I’ve been there, we hold defense attorneys accountable for going to see their clients. If we have to, we can call. We shouldn’t have to. We’re going to be looking at that and what we need to put in place to remind them of their duty and to emphasize that if they want to stay on the court-appointed list, they need to comply. The jail is a totally different animal. I know when I did criminal defense work, it’s first come, first serve. You can’t make appointments at the jail to see your client. You show up, you get in line, each attorney, at least when I was doing it, got half an hour with their client. There are two stalls, but we could only go in one at a time for some reason. They didn’t have either second stall wasn’t functional, or they didn’t want two attorneys in their talking to clients at the same time. I know there appeared to me to be two stalls and four chairs, I think. But they only let one attorney in at a time. I don’t know what the deal was, but we would sit and wait and as soon as the half hour was up, they would let the attorney know that they would have to leave and the next attorney came in. And if you sit there and you’re the third or fourth one, you’re looking at two hours down the road. Attorneys have very limited time, and especially if you show up at five o’clock or something, there’s certain times you can’t show up because they’re eating, or — I don’t know what to do about that. I hope that they’re — I know that in the government center (under construction) there are some spaces and conference rooms for attorneys to meet with their clients, but that’s after they’ve been brought to the government center. I don’t know what kind of a solution can be implemented to take care of visiting at the jail. I’ve had to visit another — during visiting hours you can go and visit people at the jail more. Do they accommodate more people than outside of visiting hours, which is when most of the time was spent? Outside of visiting hours is when I had the time to go see my clients. It’s very, very difficult sometimes to get in there to see your client. That said, it’s not impossible. You just have to call and find out if there’s anybody there and what the wait is, estimated wait is, so we’re on our criminal defense attorneys to stay on it and get with their clients as quickly as possible.
SMLN: The MGT study recommends that Hays County amend its indigent plan to provide for more frequent payments to court-appointed attorneys. In addition, the county should provide an expedited payment system to help ensure that an adequate number of defense attorneys will participate in the indigent program, recommends the study. Do you agree with these recommendations, and if so, why, and if not, why not, and what other recommendations would you make?
Boling: At least since I’ve been there, we’ve processed those payments pretty quickly. And when I was a criminal defense attorney, I know that in county court at law I didn’t have problems getting paid, and getting paid what I requested, for the most part. Now, I did have problems when I was a felony defense attorney, but that was years and years and years ago, so I don’t know what the situation is now. That was seven, eight years ago or something. So I don’t know what the system is in the felony court. But as far as misdemeanor court, I could speak to that and in my year experience there we have a 30-day turnaround. We pay them, for the most part, exactly what they request, and we can’t give partial payments. They finish their case and they submit a voucher. There are some cases where we do pay partial — if, for instance, somebody’s absconded or something like that. But, for the most part, I don’t think we have any complaints from defense attorneys, at least none that we’ve heard, about payments in county court at law. I don’t think that expedited payment is what’s keeping attorneys from being on the court-appointed list. I think that a lot of attorneys have a very full caseload of private non-court-appointed clients, and they don’t have the need to be on our court-appointed list. Unlike other counties, we don’t force our criminal defense attorneys to be on the court-appointed list. We’re not going to force them to take cases that they don’t want to do. So, we have a list of attorneys in Hays and there’s some in Travis and there’s some in Bexar (County) that are on our list and — so I don’t know that we have a lack of people interested in being on our court-appointed list. Sometimes I do wish we had more, but we have plenty now. Some of the locals may even complain that maybe we shouldn’t have so many out-of-county attorneys, but I think people that want to be on the court-appointed list are on the court-appointed list, and, at least in county court at law, are being paid in a timely manner in accordance with our fee schedules and what they’re asking to be paid is paid, for the most part. So, I don’t agree with that. I don’t understand where that’s coming from. It may be felony court. It may be directed at felony court.
Updegrove: I don’t know that it’s the payment plan or the time that it takes to get billed that is what prevents a lot of attorneys from being on the court-appointed attorney list. A lot of the people don’t want to be on the court-appointed list because of the types of cases that are appointed to them, the amount of time that is required for a lot of these cases, and the fact that it’s just not a lot of money per hour. I’m on the court-appointed list. I don’t have a problem with that at all. I understand that I’ve got to get the billing in, you’ve got to account for the billing. You do that in private work, too. You’ve got to bill your client for every minute that you spend. You do the same with the court. The court cuts the bill as they see fit. But, typically, that really hasn’t been a problem that I’ve seen. I’d sure love to have more meeting rooms. But the other part of it is, we’re required to send them a letter within 72 hours or 48 hours, I don’t know. We send it out the day we get the appointment to the person that’s incarcerated. We send it out to anybody that we’re court-appointed to that same time, and we tell them to call our office. I don’t know that setting up an additional meeting room at the jail, other than making it easier for me to go out and visit them, or other attorneys, so we don’t have to wait in line — that may ease the amount of time. But the court appointment system has worked wonderfully, as far as I know. I’d like to get paid more.
SMLN: According to the MGT study, Hays County has the lowest violent crime rate and the lowest property crime rate of the peer counties of Comal County, Ellis County, Guadalupe County, and Johnson County. According to the study, Hays County is above the 2007 average peer county population of 123,031 residents, has the fastest growing population, the highest percentage of people living below the poverty line, and the lowest median age of the peer counties. If all this is true, is it useful to you in your work, and if so, how would it inform your decision making, if at all?
Updegrove: A judge is blind to everything. That comes into sentencing. I would assume that’s where this is going. A judge is basically somebody that goes in, listens to both sides of the story, and makes a decision. When it comes to sentencing on a criminal matter, I can understand where some of these things come into play. But that’s after a finding of guilt or somebody has pled guilty to something. I don’t think it affects — it’s not going to affect your civil law. It’s going to affect probate. I assume it’s going to affect juvenile, since we’ve got lots of little juveniles. But the poverty rate, the low crime rate, I don’t know that that’s any indication of any factor that goes into determining anything other than what would be done at punishment. And I don’t know that that really affects punishment. There’s no rich justice or poor justice. There’s no old or young justice. I understand that there’s juvenile justice and I don’t want to be one that tries to put a record on someone that — there’s alternatives rather than a criminal record for young people. But I don’t know that that’s going to affect anything, really.
Boling: Hays County’s just a wonderful county to live in. Those numbers, I can’t imagine that we would ever take into consideration when we’re deciding appropriate punishment or whether somebody’s guilty or innocent. We wouldn’t be taking into consideration any of these other counties and what they do. If people want to represent themselves, in our experience, they’re going to give them a recommendation based on how serious the crime is, whether they have a previous criminal history, whether there’s a victim, whether there’s restitution owed, and then they’re going to take into consideration community standards or guide — what juries have done in this community in the past with cases in the past similar to the ones folks are charged with, and they’re going to take into consideration if the jury found someone guilty and then later also did the punishment because we have a bifurcated system where the first part is the guilt/innocence and the second part is the punishment. And a defendant can decide to go to the jury for punishment or to the judge for punishment. And so, if they go to the jury, then juries in this county, particularly in this county, specifically have made judgment calls on what type of punishment someone should have, and the district attorney takes that into consideration, as well. Other counties may be stricter or more lax, I don’t know. But I’d say, for the most part, that’s — I don’t know how to explain that we seem to have less crime here in Hays County other than it’s a great county to live in. We have a student population that I don’t believe any of those counties has. So, I don’t think it’s really fair to compare us to other counties that don’t have a university, especially one the size of Texas State. So I don’t know why they picked those particular counties. They don’t seem to apply, to be comparable counties or to be counties to use that would fairly represent — that we can fairly compare Hays County to. Because we have the university, and that’s a big factor, I think. We have good students at Texas State and we just live in a very family-friendly environment here in Hays County.Email | Print