Brief to Texas Attorney General contends that thousands of bail bonds were issued illegally under Texas law, and that magistrates were illegally bypassed under practices that the El Paso District Attorney has promoted as a statewide model.

FOR IMMEDIATE RELEASE

March 30, 2006   

Contact:         

  • Will Harrell, Exec. Director, ACLU of Texas, 512-478-7300
  • Jerome Wesevich, Litig. Dir., Texas RioGrande Legal Aid, (833) 329-8752
  • Andrea Marsh, Director, Texas Fair Defense Project, (512) 637-5221

 

AUSTIN:  Today the American Civil Liberties Union of Texas and other public interest organizations filed a brief in response to an invitation from Texas Attorney General Greg Abbott.  The brief  shows that thousands of arrests have been processed illegally in El Paso.  Under the illegal procedures, El Paso police officers have issued bail bonds when they lack authority to do so, and bypassed magistrate hearings that are required for all arrestees.  These practices prevent many low-income defendants from getting prompt court-appointed defense counsel and cause some poor arrestees to languish unnecessarily in jail under unreasonably high bonds, imposing wasteful costs on county taxpayers.

The issue has statewide significance because the disputed procedures are part of an overall system used in El Paso that has been promoted as a statewide model for processing most Texas arrests.  If the El Paso system is going to be held up as a model for other counties to use, the public interest groups say that illegal elements of the system must be corrected.  The brief filed today by the public interest groups asks the Attorney General to issue an opinion stating that police officers must present each arrestee to a magistrate as required by Texas law, rather than issuing a bail bond and booking into jail those who cannot meet the police bond.

When the magistrate process is bypassed, indigent defendants do not have a chance to secure appointed defense counsel to advise them until long after the criminal proceedings against them have commenced.  In addition, Texas law allows magistrates to issue cost-free personal recognizance bonds, while police officers may not.  When police officers are allowed to set an unnecessarily high bond without review by a magistrate, some defendants are left in jail when they otherwise could be released on bond and return to their jobs and their families pending trial.

The procedures at issue are part of a set of post-arrest practices created by El Paso District Attorney Jaime Esparza known as DIMS (District Attorney Information Management System).  Similar procedures to expedite criminal charges are used in Harris County.  Recent studies indicate that illegal use of police officer bonds may be growing after El Paso District Attorney Esparza, who was recently named Texas prosecutor of the year, has promoted DIMS as a model that should be implemented statewide.  While the organizations do not now contend that all DIMS practices are illegal, they do contend that the specific practices of police officer bonding combined with magistrate bypass are indefensible under current Texas law.

One practical impact of the illegal arrest procedures has been that people who qualify for pretrial release without paying a bail bond (so-called "personal bonds") have been less likely to be released. 

El Paso personal bond rates are near 1%, while Travis County personal bond rates are near 64%.  To the extent that people who qualify for personal bonds are required to post surety bonds instead, mostly indigent families are hurt without any benefit to public safety whatsoever.

Another important impact of the illegal practices has been that people are not timely informed of their rights by a magistrate as required by Texas law.  These rights include not only the critical right to counsel, but instructions on how to request counsel. 

Texas law is clear that every arrestee must be informed of her rights without unnecessary delay and never later than 48 hours after arrest, but under DIMS, some people waited weeks or months before first appearing before a magistrate.  Absence of these warnings diminishes access to counsel, particularly for indigent defendants. 

"We appreciate the efforts of the El Paso officials to expedite criminal charging procedures so that accused persons do not languish in jail," said Will Harrell, ACLU of Texas Executive Director.  "But certain aspects of the DIMS system are beyond the bounds set by Texas law and the U.S. and Texas Constitutions."

"Overall, El Paso's DIMS system has many benefits as a fair and cost-effective model for other counties in Texas.  But those positive features are completely undermined by these bail bond procedures that are illegal, unfair, and wasteful of taxpayer dollars," said Bill Beardall, Director of the Equal Justice Center, a civil rights group that has helped to reform indigent defense procedures in Texas.

"While DIMS succeeds in reducing pre-trial incarceration days and speeding up appointment of counsel for some defendants, in other cases it actually increases the amount of time people have to stay in jail and delays defendants' access to legal representation," said Andrea Marsh, Director of the Texas Fair Defense Project.

"Public confidence in our criminal justice system promotes the respect for the law," said Jerome Wesevich of Texas RioGrande Legal Aid.  "Officials who arrest and prosecute people only promote public confidence in criminal justice when they themselves follow the law to the letter."