San Marcos Mercury | Local News from San Marcos and Hays County, Texas

October 25th, 2010
428th district judge candidates discuss legal process

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Democratic challenger Scot Courtney, left, is running against incumbent Republican Bill Henry, right, for the bench of the 428th District Court. Photos by Sean Batura.

By SEAN BATURA
News Reporter

In 2005, the Texas Legislature and Hays County formed the 428th District Court, the only such court dedicated exclusively to Hays County cases.

Bill Henry was appointed as the judge of that court. In 2006, Henry won election against Anna Martinez Boling. Henry, a Republican, faces a challenge on Nov. 2 from local attorney Scot Courtney, a Democrat.

San Marcos Local News presented identical questions to the candidates. The questions and responses are here presented unedited, except for punctuation and publication style.

All references to an MGT study’s recommendations and findings refer to those contained in the Executive Summary to the Criminal Justice System Assessment and Jail Population Study for Hays County, Texas, released in April.

San Marcos Local News:
As the county becomes more urbanized and more densely populated, how does that change the role of the 428th district court, if at all?

Bill Henry: It requires us to continue to work hard. I usually get to the office at about 7:30 every morning and start signing papers. I’ve added additional dockets for the criminal and civil side in order to move our cases. I have added a jail docket in order to work on decreasing the jail population. And as we grow, we’re going to have to continue to work hard to address the concerns of the community.

Scot Courtney: Well, with population growth comes increased court traffic. Even if the crime rate, for instance, were to drop or remain consistent, with greater population you’re going to have more cases per capita — I mean, not more cases, but more cases gross, even if the per capita crime rate, for instance, doesn’t rise. That pretty much goes along with the civil suits as well, rates of divorce, civil suits, and anything like that. If the rates stay consistent, with more people you’re going to have more numbers. So, you’re just going to see an increased number of cases in the district courts, and in all courts.

SMLN: What does your experience and education tell you about the justice system needs of Hays County as relates to the 428th district court? What issues in the court need the most attention in your view?

Courtney: I think, right now, administratively, I think just case management right now needs to be focused on. According to state statistics, we’re in the bottom quarter of all Texas counties when it comes to age of cases and clearance rates. I have some numbers on that, but the district courts report to (the Texas Office of) Court Administration, a state agency, numbers every month, and they keep that statistical data in formulas. And it just shows that we are lagging behind other counties.

Henry: As our county continues to grow, I believe that we’re going to see more violent crime with the growth of the (Interstate)-35 corridor, and I believe that we are going to see more families in crisis. It is critical that we have a court that understands that the judge is the last line of defense for the safety of our community. It is also important that we have a judge who has experience in family and other civil law. I believe that’s why I have the endorsements of the Fraternal Order of Police and the Hays County Law Enforcement Association. I believe that’s why I have the support of the majority of the family lawyers. Because both of those groups have seen what I have done on the 428th court.

SMLN: How would you balance the need for speedy case processing with the needs of justice, given that speed is not an indicator of a court system’s fairness?

Henry: You are correct in that a speedy trial does not automatically guarantee justice for either the victim or the defendant. These issues have to be balanced on a case by case basis. Oftentimes, the state is not ready to go to trial because they have not been able to gather all their evidence. In other cases, the defendant is not ready to go to trial because they have not been able to gather all of their evidence. What I have done is I have instituted a situation, a system, where if a case is reset, it must be reset to a specific date, and I attempt to force the parties to resolve their case within the bounds of justice. If the case is forced to go to trial without the parties being ready, it does set up a potential issue for appeal. But I have worked hard to make sure that cases are moved forward as expeditiously as possible.

Courtney: Speed is not an indicator of a court’s fairness, you’re right about that. However, it is a balance. The length of the case does not necessarily mean somebody’s getting a more fair trial. Fairness and length of case rarely correlate. The most important thing when you talk about the age of a case, the most important thing that a judge can do while a case is pending, is make sure both of the parties are progressing towards whatever the final resolution is, whether that be a trial, or some mutual agreement, plea agreement, or agreement in a civil case. So, it’s the court’s job — the way I kind of see it, it’s the court’s job to be the jockey to make sure the horse is getting around the track in some expeditious fashion. Absolutely, fairness is what’s most important, but very seldom do those correlate between the two. You can certainly have a fair trial in a very brief amount of time.

SMLN: According to the MGT study’s executive summary, released in April, 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 space. Local jails can also 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 Caldwell, Comal, and Hays Community Supervision and Corrections Department reports using ELM very sparingly due to inadequate staffing for that purpose. The MGT Study recommended that the commissioners court determine the feasibility of establishing a local ELM program as a way of reducing its jail population while developing alternative supervision options that can keep the community safe. What is your stance with regard to ELM 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 district judge play in establishing such programs?

Courtney: I think that there are many individuals who, rather than being incarcerated, could be monitored through the ankle monitoring system. And it certainly would reduce the jail numbers. There’s been quite a lot of advancements in those satellite monitoring devices over the years. They can even be set for parameters where if the individual goes outside of a particular area, you’re alerted. You can put in specific things that can literally track them where they are at, more or less, any given time. I would certainly support looking into those types of programs, the feasibility. As the district judge, I can’t necessarily do that, but I certainly think it should be something that the commissioners should consider to make available to the courts. It would certainly allow the judges the discretion to maybe lower bonds and put conditions of bonds on those to let those people out that are appropriate, that are non-violent, lower threats to the community at large. And it would allow those people, even, to go out, work, possibly hire an attorney instead of having a court-appointed attorney. It could reduce several different issues. The fewer people that can’t afford an attorney — if they can afford an attorney, then the county doesn’t have to pay for it. So you kind of kill two birds with one stone. If it’s an appropriate person that should be out there working, could hire an attorney — we don’t pay for them to sit in the jail and they pay for their attorney. It seems like it would cut costs to the county two-fold. I think the judge could play an advisory role to the commissioners court, because technically, when someone is either on bond or on community supervision, probation, they’re technically being supervised by the judge. Now what tools the judge has to do that, oddly enough, sometimes is controlled by, say, the commissioners court, or state funding into the Community Supervision (and Corrections Department). But, certainly the judge can lobby or ask the counties — whoever is running the budget, be it commissioners and the county or through probation — to inquire, ask them, “Is it possible that you could, say, apply for grants or budget into things?” It might — it would help. I think the judge should be open to talk about those things and let them, know, “If I had this, I would use it.” Sometimes, generally, maybe something’s made available, and the judge says, “I don’t like it. It doesn’t help me do this.” Well, then it’s wasted money or it’s just not being used.

Henry: The district judge can play a role in these alternative options with the assistance of the District Attorney’s Office, the sheriff, and the legal community. Sometimes an item that looks good in theory can become ineffective if all the stakeholders do not agree on how something should be implemented.

SMLN: According to the MGT study, while individual courts operate similarly at magistration, Hays County does not have any formal pretrial services offered to arrestees. According to the study, implementing a pretrial services program will facilitate timely release of low-risk offenders from jail while awaiting trial, thus freeing up jail beds. The MGT study recommends that Hays County establish a pretrial services program through the Community Supervision and Corrections Department, modeled after Caldwell County’s program. Do you support the county establishing a pretrial services program through the Community Supervision and Corrections Department? Why or why not? If so, what role does the district judge play in establishing such programs?

Henry: The pretrial services office is an issue that is being studied and discussed at the present time among all the stakeholders, including the commissioners, the District Attorney, the probation office, the bonding community, the legal community, and the clerks. The Caldwell County process is relatively new and the reports are that it is not working perfectly. I am open to looking at this matter and seeing if we can do it better. If we cannot improve the system, then I am not in favor of a pretrial services office. In other words, if we cannot decrease our jail population, if we cannot make the system more accessible, then I am not in favor of a pretrial services office. The district judges have been providing input into this study to make the system better for everyone. It’s important that we make the system more accessible and more fair for all the parties involved. It’s important to understand that these issues are complex and multifaceted. For example, it might make things more efficient if a judge could just call an attorney and tell him to move a case faster. However, that kind of communication is not proper under the judicial rules of ethics if it is not done in open court. So, it’s important to understand that these issues are very complex and require all the input of the stakeholders.

Courtney: I do support that if the budget allows for it, absolutely. I’ve practiced in many counties where they have a pretrial services division, basically, of Community Supervision (and Corrections Department). I like it. I think it does provide for release of people rather than holding them in jail. Holding them in jail does not necessarily do anything — certainly for nonviolent offenders, people of that nature. It can be used to set conditions of release, such as the satellite monitoring, and gives the judge an actual person — it’s kind of like a probation officer — to monitor that person before trial while the case is pending. I’ve been in many counties that use it. Travis County has one, Caldwell County has one, obviously. Usually the larger the county, the more possibility that they have that, because they have seen that that is a way to effectively monitor people who are on bond and make sure that they come to court — which is the main reason for bond, to make sure they do come to court and deal with the case — and reduces the people that are just sitting in jail. Especially when you have situations where somebody may be waiting a year or two for trial. They’re just going to sit in jail. Now, obviously there are certain people that should not. Maybe they don’t qualify for bond, maybe there is a danger for the community or they’re a flight risk — absolutely, those would not be the types of people who would be appropriate for those types of programs.

SMLN: The commissioners court has initiated a process to begin implementing at least some of the MGT study’s recommendations. What would your role be in that process if you are elected?

Courtney: I have not had a chance to see the recommendations yet. It is my understanding they were just really made public about a week or two ago. [SMLN: Though an executive summary to the MGT Study was released in April, according to county officials, revisions have been ongoing since that time]. I have spoken to some people that have (seen the recommendations) about certain things. It’s my understanding that, as far as the county courts at law, many of the things that were recommended they already do. Certainly, if I were the judge, I would look at those recommendations and obviously implement those that I saw would help whatever the failings of the district court were. So, I can’t really speak specifically to them, but I do know that, certainly in the county courts, the judges are aware of them. They feel that they are doing many of things, but also agree with many of the other things that have been recommended.

Henry: I have met with our commissioners and other stakeholders to provide input into the process.

SMLN: According to the MGT, over 60 percent of all criminal cases disposed in 2008 were over 120 days old. Only 15 percent of cases are resolved in the first 60 days, according to the study. The study states that over the last five years, the majority of disposed felony cases in Hays County were more than 120 days old at time of disposition. The percentage of cases disposed in less than 120 days was the highest in 2008 as compared to the previous four years. Does this indicate to you that some improvements should be made, and if not, why not, and if so, how would you go about making them?

Henry: Our county calculates the age of cases different than almost every other county in the State of Texas. Our county calculates the age of case from the date of the arrest, while most other counties calculate the time from the date of the indictment. I have added additional criminal and civil dockets in order to efficiently hear our cases. I am here every day working to reduce the backlog. Three other district courts have other responsibilities in other counties. My court has led the way in reducing the backlog of cases.

Courtney: I can tell you, as far as age of cases, according to the Texas Office of Court Administration, their trial court data management system, as far as the district courts, during Judge Henry’s tenure, yes, 68 percent of the criminal cases were over 120 days old. We rank 194th out of 254 Texas Counties in that particular ranking. Civil cases, over 19 percent were over 18 months old. We rank fairly well — well, we rank 63rd out of 254 counties — better. The judges usually don’t have a lot of control over the civil as they do the criminal, because the parties set their cases on the docket. So cases can go without a court setting for many, many months until one of those parties actually sets it. Contrary to that, (in a) criminal, judge sets that docket. I think there’s always room for improvement, but these numbers specifically show that there is a need for improvement. I’ve traveled all over the state, so I’ve seen — I’ve practiced in almost 50 different counties. So, I’ve seen many, many different ways it’s done, both good and bad. As far as the goods are concerned, typically, a judge that stays active, keeps cases coming back regularly on the docket, tends to produce quicker resolutions because it makes the parties work on the cases. If they don’t have to go to court, they’re probably not as motivated to work on the cases as if they know it’s coming up, at least for a status. Those numbers indicate a need for improvement. Other numbers, what’s called a “case clearance rate,” which is a formulaic number by the Office of Court Administration, indicates that any time the number is under 100 percent — which more or less means they’re clearing or disposing of the same number of cases as are their taking in a year. Over the last five years, that’s where we’re really failing. That’s where we are ranking somewhere between 190 and 200 out of the 254 counties, because our case clearance rate is not indicating that the courts are clearing the cases in an effective manner.

SMLN: 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 while 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. 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 district judge play in establishing such programs?

Courtney: Absolutely. There are many, many programs, usually sponsored through the state, sponsored and administered through Texas Department of Criminal Justice, their community supervision division, that do, and they recommend that judges consider those to reduce not only the county jail population, but the state penitentiary population. Their recommendations, generally, are that incarceration — I don’t want to say is the last resort, because it’s not — but other options should be looked at to see if those cases are appropriate for it. And if the offender and the type of case is appropriate, absolutely. There are many, many different programs. Again, I’ve been in many, many different counties and they change, periodically, but alternative placement — yeah, absolutely.

Henry: I support that. Individuals on probation routinely serve alternative incarceration sentences other than our county jail. I’ve also instituted a drug re-entry court program. The purpose of that is to work with offenders who have been through these alternative incarceration programs and to help keep them on the straight and narrow and out of jail. This has been a successful program.

SMLN: According to the MGT study, several different stakeholders during interviews conducted over the course 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, according to the study. The MGT study recommended that continuances be monitored by case and attorney and that the information be readily available to court. Do you agree with these recommendations, and if so, why, and if not, why not, and what other recommendations would you make?

Henry: As I said before, I have instituted jail dockets, I’ve instituted additional dockets, I am accessible and available during and after hours to reduce the jail population, as well as the caseload. I work every day to reduce the caseload. Three other district courts have additional responsibilities in other counties.

Courtney: I do agree with that. And that’s — all of that are indicative of several things, I think. I’m speaking more — it’s difficult to answer some questions because you’re lumping the district courts together, which, that’s how it is. I think, generally, my opponent grants continuances more readily. As far as resets or continuances based upon attorneys not being present — unacceptable, period. I would not — I do not think that’s acceptable and I would not tolerate attorneys having cases on my docket and just not showing up. There’s “contempt of court” that’s available to the judges. They can issue “show cause” orders. I know (274th District) Judge (Gary) Steel is known to do that. I can tell you this morning (207th District) Judge (Jack) Robison was on the bench, and several lawyers were not there and had not checked in with the court and let them know if they were running late or would be there. And even Judge Robison made the comment that, “Well, I guess we’ll have to start implementing some of Judge Steel’s show cause orders to see what’s going on.” But I think that is, you know, that certainly is one of the judge’s jobs. When I’m talking about he’s the jockey — if a horse doesn’t show up, it’s the jockey’s job to go get it and get it saddled up, ultimately. I’ve been in many courts that the judges are known to be, are to be feared. But it’s not because they’re mean, it’s because they expect their attorneys to be prepared, to be on time, to do the things that a professional lawyer should be doing.

SMLN: According to the MGT study, the basic premise of differentiated case management is the recognition of the need to administer different categories of cases based on their complexities and individual issues. According to the study, Hays County attempts to differentiate the handling of cases, but there is no formal or automated system to assist in this process. The MGT study recommends that the district courts consider implementing the Differentiated Felony Case Management System to expedite the processing of cases. In addition, while this system is being implemented, the courts should closely monitor their backlog to ensure the transition does not result in increases in the jail population.

Courtney: I don’t know the details of the felony case management system. I don’t know the details of that, so I can’t really speak to it. The way I read that, it’s an automated case management system. I don’t know specifically what that is. But I think that, number one, the district judges, by and large, do that every morning when they have docket. Whether or not it is pursuant to this protocol, I certainly think that they are mindful of the types of cases they have in front of them.

Henry: I’m in favor of that.

SMLN: According to the MGT study, Hays County district courts currently schedule trial dates based on court availability. According to the study, once an indictment occurs, a case is assigned to a court, and a hearing is held to determine whether a pretrial and/or evidentiary hearing is required. The case is then set for trial. According to the study, it is only when that trial date has arrived, or is approaching, that discussion occurs about whether a plea will be entered. According to the study, many of the convictions in Hays County result from guilty pleas rather than trial convictions, and more than 94 percent of the convictions in Hays County resulted from guilty pleas over the past five years. The MGT study recommends that cases be reviewed, particularly those of offenders incarcerated in the jail, to determine whether a plea agreement can be reached. Do you agree with that recommendation, and if so, why, and if not, why not?

Henry: I agree with that recommendation. The state and the defense are responsible for negotiating the plea agreement.

Courtney: The cases aren’t assigned to a particular court in Hays County. The four district judges share a common docket. And so once a case is indicted, it’s not assigned to a particular judge. It might have a court designation of one of them. But it truly is not a court designation, because they have concurrent jurisdiction with everybody, and they share that docket. So one judge does not necessarily control a particular case unless it was specifically put on that court’s docket for some reason. Say the judge has made some rulings on a particular case, it may then follow that judge. It may hold a designation as in, it’s assigned to the 428th or 22nd, but that doesn’t mean that case necessarily comes up only on that judge’s docket. I think between indictment and the decision to put (a case) on the trial docket, the court — as it stands now, and I think it’s correct — generally inquires of the parties, “What’s going on, where are you in the process, have you gone through the discovery process enough that you can evaluate the case of whether or not you all need to enter into plea negotiations, or do we need to entertain placing it on the trial docket?” And that takes anywhere between one setting up to — I’ve seen many. There may be issues getting certain information to the defense, possibly. And then there’s usually a hearing if there’s some sort of suppression issues. And then it is placed on the trial docket. But all through that process, the parties typically do, and should be, discussing the case. And if they come to some agreement regarding, say, a plea agreement or some resolution in the case, an agreed resolution, I think they should be encouraged to bring it to the court, set it on the court’s docket, and dispose of the case. Certainly, whether or not a case is going to be pled or disposed of, I feel, happens before the trial setting. Now, it can continue if the parties haven’t been able to agree up to that point, and I don’t think it precludes that, but that’s not necessarily — and I don’t know where that information is coming from — but I would tend to disagree with that. It certainly may happen that way sometimes. But I would tend to disagree that the court would not entertain a plea or an agreed resolution before the trial docket. I disagree with that. They would rather entertain it before it’s on the trial docket. I don’t know whose information that is. I would tend to disagree that that’s what happening. It may happen in certain instances, absolutely. And if it’s somebody’s perception that that is happening, well, maybe it is in those cases I’m not aware of. But in the cases I’m involved in, usually the court makes the inquiry of, “Can y’all work this out before we put it on the trial docket, because I’d rather not put it on the trial docket if it looks like you are going to work it out?” Now, certainly cases do get worked out a lot. And that maybe what is happening — a lot of cases are getting worked out at the trial docket rather than happening before that. Maybe that’s the person’s perspective that they’re talking about. If I had to guess, I would guess upwards, say, 90 percent — 85, 90 percent of cases are disposed of through — usually plea negotiations, some sort of agreed resolution. I do agree with that recommendation, and I think that persons who are incarcerated, I think that they typically do get preference as far as speed of case, generally. I do think that those cases should be set more frequently on the docket to help facilitate that and make those cases mature quickly. And if a trial is necessary to dispose of them, obviously, set it on the trial docket once everybody has had a chance to evaluate them and prepare for a trial. I don’t know, as far as their recommendation, I wouldn’t necessarily put it that way, that a judge should evaluate those cases. It’s not the judge’s job to make the parties agree on a plea agreement. That’s between, for instance, the district attorney and the criminal defense attorney and his client. But I do think the judge should take some role in encouraging the parties to discuss that and try to make that determination — yeah, I do agree with that.

SMLN: The MGT study recommends that the Hays County district courts review the jail roster to determine the number of defendants who have been in jail awaiting trial for over one year.

Courtney: The recommendation of reviewing the jail roster — if that’s not being done, then yes, I absolutely think it should be. I would be a little surprised that it’s not, that the courts aren’t mindful of who’s in jail and for how long, at least on some regular basis and review of what they have going on. I would be real surprised if that’s not happening.

Henry: I do that in my court. I’ve added the jail dockets in order to decrease the jail population. I attempt to move the cases as fast as possible consistent with the ends of justice.

SMLN: According to the MGT study, many of the cases involving defendants who have been in jail awaiting trial for over one year involve charges of murder, sexual assault, aggravated robbery, and aggravated assault. These cases can be complex and require longer time for investigation, evidence collection and DNA test results, according to the study. The MGT study recommends that during the time the district courts focus on these long-term cases, it is vital to the jail that minor cases continue to be quickly disposed so that the jail population will not rise further. Do you agree with these recommendations, and if so, why, and if not, why not, and what other recommendations would you make?

Henry: I attempt to move the cases as fast as possible consistent with the ends of justice and the rules of ethical behavior.

Courtney: I totally agree that some of those cases are complex. But very rarely does it take more than four months to get a case ready for trial. Most times, once a case has been indicted, the state’s investigative role, the majority of it, has been done. Now, it might take the prosecutor a period of time to take that case and get it in a position where they can effectively present a case to a jury. But a year? No, very few cases are that complex that it’s going to take a year to prepare for trial. Getting to trial, by and large, it’s more of a function of the cases that the trial courts backlog than it is the parties saying, “I need more time to prepare a case.” In civil cases, certainly it can take time, a significant amount of time, because you have the parties taking depositions, interrogatories, a lot of procedures that are happening outside of the courts — but the case is progressing. Criminal cases, everything’s happening in the court, there are no depositions, things of that nature. Now, the state may be still looking for witnesses and things like that, but very rarely are the parties coming in saying, “Judge, I need more time because I’m not ready for trial” after five or six months. Usually, by that time, everybody is more or less ready. They may not be ready right this second, but the overall case is usually ready for trial.

SMLN: According to the MGT study, the use of the video arraignment process addresses the problems associated with having to transport offenders. According to the study, the transportation of offenders requires time, puts additional demands on jail staff to provide for the safety of the public, court personnel, and for the security of the offender population and also addresses the rising costs of transportation. According to the MGT study, the county purchased a video conferencing system for $50,000 to be used for video arraignment. However, as of the study’s release, this system has never been put in place. The county also purchased security cameras for court rooms, which have also never been installed. The study recommends the technology be utilized. Do you agree with these recommendations, and if so, why, and if not, why not, and what other recommendations would you make?

Courtney: I’m not real sure why I would object or disagree with using something that that county has. I have appeared in courts that use that technology. Comal County uses it in their county courts. It seems to work. It does reduce on their travel, their transportation. They’re specifically talking about the arraignment process, which is the first court setting after someone is indicted, and it is used to advise a person of what they’ve been formally charged with and indicted. They’re entitled to an arraignment with counsel. That can certainly take place. I know in Hays County, waivers of arraignment are used quite a lot. You can file before your arraignment date. And therefore, they don’t have to bring the person over. It’s most of a ministerial function. Most people at that point know what they’re being charged with, and so the arraignment process is not overly necessary. Now, if that is burdening them, yeah, absolutely, I would absolutely have that looked into. And I would hope that some of these technology issues would be addressed and incorporated in the new courthouse. That’s going to be online in the next year and a half. Most courthouses that I’ve been in, county and district courts that have been built in the last five to 10 years, do incorporate a lot more technology. Sometimes too much, in my opinion, where it’s too hard to deal with. But they have some good ideas, and video conferencing is one of them that in some instances can take that place.

Henry: I’m in favor of doing anything that will reduce the cost to our taxpayers consistent with the ends of justice.

SMLN: According to the MGT study, although Hays County has an indigent defense plan in place, judges and defense attorneys interviewed stated that the requirements for Texas’ Fair Defense Act (FDA) are not always met. 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 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. There are two spaces at the jail where attorneys can meet with their clients, but these spaces are often taken. According to the MGT 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 occurring. Discussions with defense attorneys as well as county staff over the course of the MGT study 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, which presents an undue delay in payment, according to the study. In addition, once an invoice has been submitted, it is not always paid within 30 days, as required in the Hays County plan, according to the study. The study recommends that a system be established to hold appointed attorneys accountable for meeting with defendants in accordance with the requirements of the FDA. Consideration should also be given to providing additional space and time for attorneys to meet with the defendants at the jail. Hays County should 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. Do you agree with these recommendations, and if so, why, and if not, why not, and what other recommendations would you make?

Henry: Number one, we do need to have more physical facilities both at the jail and the justice center. Right now, we are limited by our facilities. I usually sign an order to pay court-appointed attorneys within 24 hours of it being presented to me. All of our district courts have increased payment per case to the attorneys in order to increase the quality of representation. We have been able to accomplish that without spending more money on an overall basis on this line item. We have four district courts in Hays County. Three of those courts have responsibilities in other counties. As a result, they are not at the courthouse for presentation of orders. As a result, those payments are delayed. That is, the cases that are presented to the other district judges are delayed. I would have the bills presented electronically to the other judges in their office over in Comal County — Comal and Guadalupe County.

Courtney: Generally speaking, I agree with the recommendations. Any county’s indigent defense program must give some incentive to the lawyers to take those cases. If they don’t, you’re not to attract the top lawyers to handle those cases. Now, I’m not saying that’s not what we have here, I’m just saying that’s got to be in place. If lawyers are not being paid or being paid timely, that will deter the lawyers from doing it. They are in business. They are usually independent businessmen and therefore have to run a business, as well. And if they are taking court appointments, well, they are taking time away from their other practice of retained clients and promoting that practice, to do that type of work. Usually, they take a few more cases of appointments, so thus reducing their time even more. So, according to the study, if they are experiencing problems meeting with their clients, that is a problem. Now they’re taking more time. And if they’re sitting at the jail waiting for their client, they’re billing the county, because that’s time trying to meet with their client that ultimately is going to show up on their bill that comes to the county. Now, if that bill goes to the judge and that judge strikes those two hours, for instance, and says, “Well, you weren’t doing anything” and he says, “Well, I couldn’t do anything. I was waiting at the jail to talk to my client.” If he doesn’t get paid for that time, or she, they’re probably not going to want to take another case, because they’re spending the time but they’re not getting paid for it. Likewise, if judges are cutting those vouchers or whatever is being submitted in, there’s no incentive for the lawyer to take those kinds of cases if they’re not going to be compensated for their time. So, it’s important that the lawyers feel like — in those cases, it’s the judge that controls that — that the judges are paying them fairly for what they’ve done. As far as time of payment, I’m not sure how that is being handled. But it seems to me that it would be fair to expect payment within 30 days. That budget is set aside. I can tell you my opponent has repeatedly stated that over the past two years that his court has come in over $100,000 under budget and saved the county over $100,000 each of the last two years. Interestingly, how that works is that portion of the budget, like I said, is the indigent defense budget that the commissioners fund based upon the district judge’s recommendations. Well, over the last two years, they’ve requested a number of approximately $550,000. The county commissioners in their wisdom realized that was not going to actually fund an entire year. They worried that wouldn’t be enough, so they funded it by an extra $100,000. Yes, the district courts came close to their original number, though they did exceed it. So, yes, they did come in $100,000 under budget, but only because the county commissioners gave them a $100,000 pad. Now this next budget, at least the budget numbers I’ve seen, I believe that that budget is $100,000 less than what the district court spent this past year and what they’ve requested. Now, I haven’t seen the final budget, so I’m not sure about that. But it worries me a little bit that those are the recommendations, indicating probably a need to spend a little bit more money on that aspect, but we’re cutting some of it. Now, I understand the county is in a budget shortage, and that that’s apparently where the numbers come out. So yes, they may make those recommendations but I have to preface this — with all those recommendations, that’s if the budget’s there. That can’t be “Oh, we have to do this.” There are ways to do and accomplish many of these things separate and apart from just spending money.

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 does it inform your decision making?

Courtney: It’s interesting that all those statistics that you cited as far as Hays County is concerned, all of those statistics would tend to lead someone to believe that we should have the highest crime rate. Such as, most people living under the poverty level, lowest median age — those are two real good indicators. Those would indicate that we should have a higher than average crime rate, but yet we have a lower than average crime rate. If that is the case, it is surprising. My opponent has repeatedly characterized that he is tough on violent criminals when they come into our neighborhoods and our county and that he holds those people accountable. And that may be, but I’ve repeatedly tried to explain to the citizens that we’re lucky, that right now our crime rate is lower than most other places, that we don’t have that problem that’s out of control that needs to be addressed. It’s apparently not there or it’s being addressed. I can’t tell you why that is, why that crime rate is. The study may have some explanations for it, but I think that’s a positive indication for the county in general. But, certainly, I would look at those things if I were the judge, sure.

Henry: All of those statistics show what a great community we have. Our law enforcement does a great job. Our justice system is not perfect, but by and large, it does a great job. Our citizens care about their community and work to make it better. As the district judge, I try to work every day to make our community a better place. We’ll continue to do so.

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