Feature: Wednesday, September 3, 2003
Storm Clouds at the

Judges and jailers fear a rising tide of cases and prisoners may swamp Tarrant County.

By Story & Photos Jeff Prince

blockbuster 2000 movie described how three separate weather systems converged with hideous timing to create a so-called “perfect storm,” which wiped out a big fishing boat and its crew. Perhaps Hollywood might consider making a movie about Fort Worth, where a collision of legislative and bureaucratic forces is threatening to overwhelm Tarrant County’s court and jail system.

Call it The Perfect Mess.

Converging elements include a major cut in state funding for visiting judges, an increase in civil and criminal filings, backlogged court dockets, overcrowded state prisons, and passage of legislation intended to speed the process of getting attorneys for indigent defendants that, in many places, has backfired. Like George Clooney’s fishing boat in the movie, the county jail system is the point where all of these problems are coming together.

What does this mean in plain English? A shortage of visiting judges will place more workload on local judges. Increased workload means an even greater backlog of court cases, which means defendants waiting longer for trials — two years or more in some courts. In a couple of courts, where big backlogs had built up because of issues involving individual judges, the situation may become even worse. All of which means inmates — including many who’ve not been found guilty of anything — will be sitting longer in jail, eating up county tax dollars.

Like a highway gridlock, crowding in the state prisons is now backing up prisoners into county jails. The wait to transfer prisoners from county to state lockups has grown by 50 percent in the past year and a half, adding more burden to the jail.

“The stars and the moon have kind of aligned to make jail overcrowding a problem,” said Sheriff Dee Anderson. “Where it will end is a good question. I don’t think anybody knows at this point.”

Taxpayers pay an average of about $50 a day to clothe, feed, house, and provide medical attention for each Tarrant County inmate. Just in the past year, the average jail population has grown from 3,200 to more than 3,500 inmates — costing the equivalent of an additional $15,000 a day, or more than $5 million a year.

Already, Anderson has had to re-open one shuttered jail facility and is planning to enlarge another one. Current jail facilities are nearing capacity — and the effects of the state’s latest cutback only started to be felt three days ago.

If you’re still following this twisted little trail of woe, an overcrowded jail puts more pressure on the already burdened county budget, which means, eventually, cuts in services or an increase in taxes.

“It’s kind of a vicious circle from that standpoint,” County Commissioner Glen Whitley said.

The state, facing a $9.9 billion budget shortfall over the next two years, is lopping services and passing expenses down the line, some of which are falling on Tarrant County taxpayers. County commissioners won’t be raising taxes for the upcoming budget, since a 7 percent increase in property valuations has pumped an extra $11 million into county coffers.

But nobody is certain what will happen during budget talks next year. They know the clouds on the horizon are dark — just not how dark.

The Fair Defense Act, which went into effect in 2001, was designed to provide poor defendants with court-appointed attorneys more quickly. Ironically, in Tarrant County it has had the opposite effect. And it’s costing the county millions of dollars to implement and maintain the new system.

“The purpose and intent were noble, but when the plan was put into practice it has not been achieving the desired results,” Anderson said. “Our jail population started climbing immediately after this took effect. It has been a big factor in our increased jail population.”

The act, also known as Senate Bill 7, changed the way courts appoint attorneys for indigent clients. It requires an attorney to be appointed for indigent clients within 24 hours of incarceration. Judges in some large urban counties, including Tarrant County, have complained that the law is disrupting a system that wasn’t broken.

Before the law was passed, judges typically kept a handful of attorneys on call to represent defendants on short notice. A judge could do a “jail run,” or send for a group of defendants at one time, and have attorneys available in court to handle their cases. Under the new system, judges refer to a much longer list of attorneys, who are called in order of rotation. The attorney then contacts the inmate and sets up a meeting. Afterward, the attorney meets with the judge.

Judges complain that the new system adds more steps, more scheduling, and more time to the process.

Anderson said attorneys can meet the letter of the law by sending a fax to the jail to inform a defendant that he has representation, but days often pass before the attorney meets with the defendant, and then more days can pass before the attorney takes the case before a judge. The result has been jail crowding in many large urban counties.

“We’ve seen people sitting in jail longer before their case is disposed of,” said County Criminal Court Judge Billy Mills. “People are getting lawyers faster, but it’s not benefiting them to get the lawyer faster because they’re getting out of jail slower, and getting out of jail is what they really want.”

The bill proved to be just one more state requirement that arrived unaccompanied by state money. Tarrant County is spending about $3 million more than before on indigent defense, but the state is covering a smaller portion of those costs. Last year, the state’s Task Force on Indigent Defense provided $430,000 to Tarrant County. This year, the task force is providing $681,000, said Wesley Shackelford, task force special counsel. That leaves about $2.3 million a year in extra costs for the county to cover.

“If you look at the overall expenditures and how they’ve changed since Senate Bill 7, they have gone up in much larger amounts than the state has been reimbursing,” he said, especially in the state’s most populous counties. Overall expenditures on the indigent defense program went up 10 percent in Dallas County after the new law took effect, 46 percent in Harris County, and 37.5 percent in Tarrant County.

That doesn’t sit well with county commissioners. “In effect, they [legislators] passed an unfunded mandate to the tune of about $2 million to $2.5 million,” Commisioner Whitley said. “The state did not give us the money necessary to pay for what they asked us to do.”

Whitley, chairperson of the task force’s grants and reporting committee, has been vocal in his criticism regarding additional costs, Shackelford said. “He is very concerned that the state hasn’t picked up more of the cost,” he said. “It’s easy to see why, especially when you look at Tarrant County specifically.”

Local defense attorney Larry Moore agreed that the new system costs more for Tarrant County and has required an adjustment, even though the county was among the best in the state at handling indigent clients prior to the new law’s passage. However, statewide problems required an across-the-board fix, he said, and he’s satisfied with the results. “Overall, I think it’s been a great improvement,” he said. “Within a day of being in custody they have a lawyer going to work for them.”

Before the new law took effect, some defendants across the state were being held in jail for weeks without representation. Each court had its own rules for handling indigent defendants. Moore recalled one judge who would purposely wait weeks at a time before appointing attorneys to indigent clients to make them more eager to plea bargain.

“That was the type of thing the legislature was trying to deal with, those discrepancies that were occurring based on the individual courts,” Moore said. “The overall attempt was to equal out the playing field across the state for all the criminal defendants.”

If getting a defendant an attorney is the first step in getting him out of jail, getting a court date is the second. Even if the Fair Defense Act had helped with the first part, legislative budget-cutting has undermined progress toward the second part.

Anderson and others expect the inmate population to be driven even higher by the huge cut in state funding for visiting judges, which took effect Sept. 1. Tarrant County will lose about $350,000.

Visiting judges help cover workloads for local judges tied up in long court cases or out for extended periods due to illness, training sessions, or vacations. Without their help, dockets get backed up and defendants sit in jail. Even with visiting jurists’ help, some courts are already backed up. Local judges took turns explaining those facts of life to county commissioners during Aug. 7 budget talks, and most walked away seeing a future filled with more cases and less help with which to handle them.

In the past, the state has provided about $500,000 a year to Tarrant County to pay for visiting judges in district courts. No more. State legislators earlier this year, facing their own budget woes and convinced that some counties were taking advantage of the system, sliced funding by 70 percent for visiting judges, to about $150,000, according to state District Judge Jeff Walker, administrative judge over the 18-county judicial region that includes Tarrant.

The visiting judge system “may have been overused,” said State Rep. Anna Mowery, a Fort Worth Republican, although she’d heard no reports of abuse by Tarrant County judges.

“The state has come down and said we’re going to cut these things,” Whitley told a judge during the budget session. “They pushed their responsibility down to the county.”

Whitley’s comment prompted the judge to compare the legislature to “a 3-year-old with a claw hammer” — it’s only a matter of time before damage is done. The joke drew chuckles, which were rare during this year’s county budget talks. Commissioners are expected to approve a budget on Sept. 16.

The county already spends about $86,000 a year to pay for visiting judges in county and justice of the peace courts, but has relied on the state to pay for visiting judges in criminal district courts, where federal cases and capital murder trials can take a judge away from a docket for weeks at a time. At least six capital murder trials are expected in Tarrant County in the next fiscal year. County commissioners aren’t inclined to replace the money with county funds.

“I don’t think there is very much possibility at all,” Whitley said. “Our budget is pretty tight this year as it is.”

A sliver of bright news arrived in mid-August after Walker met with the judges who head the state’s judicial regions and secured $60,000 to help pay for a visiting judge to oversee an auxiliary court. Still, that leaves the county short by almost $300,000 in its visiting-judge kitty.

To overcome the state funding loss, judges will need to spend more time helping one another with dockets, something they have already started doing.

“The adjustment has started, but the bill takes effect Sept. 1, and after that date it’s going to be real obvious what the impact will be,” Walker said. “Come Sept. 1, the money that the 8th region will have for visiting judges will be the equivalent of two judges per day for each working day during the year. We have 61 district courts in the 8th region. That means two courts can get a visiting judge and 59 don’t get any. Judges do go on vacation. Judges do get sick. More often than people realize, judges have to step down on cases [for recusals].”

Relying on local judges to cover for each other has limitations. “There are ways the judges can cover for each other in emergency situations like illness, and they are going to be required to do it and they have indicated they are willing to do that, but it’s robbing Peter to pay Paul,” Walker said. “If they set their work aside to help another judge, there is still work not being done. It’s going to be a big problem, I predict. ... The dockets, which have been handled up to this point, are going to start to grow.

Walker’s punchline was the same as other officials’: “What’s going to happen, I predict, is the jail population is going to start growing.”

Tell it to Eloy Ogaz Jr., an El Paso resident who has been held in the Tarrant County jail for 16 months awaiting a trial. Arlington police arrested him on suspicion of drunken driving on May 18, 2002. Because Ogaz had prior convictions, the district attorney’s office sought a felony indictment, which a grand jury granted. Ogaz, however, insists he wasn’t behind the wheel or driving at the time of his arrest in Arlington. He has no money for bail, but has refused several plea-bargain chances. He wants a jury trial, and so Ogaz sits in jail and waits, declaring his innocence. Though he misses his 11-year-old daughter back in El Paso, he says he’ll sit in a cell until he gets his day in court.

“There will be no plea bargain here, because I believe in justice and my constitutional rights,” he said. “I want to prove my innocence with a jury trial, which is my right.”

An Aug. 11 trial was scheduled, but delayed after Ogaz’ attorney requested a competency examination. The trial will be rescheduled, perhaps as early as this month. Less than 5 percent of cases make it to trial in Tarrant County, as plea bargains are typically sought.

There is a “huge difference” in cost between a plea bargain and a trial, District Clerk Tom Wilder said. A weeks-long capital murder trial can cost $1 million and back up a judge’s docket — and the jail — for months.

County costs, though, are the least of inmates’ concerns. If they demand a trial and can’t make bail, they’re in for a long wait, perhaps years. Some, such as Ogaz, wonder if the backlogs are an excuse for having inmates sit in the stir until they crack. “They’re prolonging it for the anxiety and the pressure I have to go through,” he said. “It’s a form of entrapment to get you to plead out and avoid a trial.”

Besides the problems with visiting judges and the Fair Defense Act, human factors also conspire to keep people like Ogaz from getting to court quickly. For instance, in Criminal District Court 4, former Judge Joe Drago battled cancer for the last two years of his term. He retired after his term ended Dec. 31, and his replacement, Mike Thomas, adopted the most backlogged docket among Tarrant County criminal district courts.

After taking the bench in January, Thomas inventoried his docket and tackled first the cases that were ready to be tried, especially those that involved people waiting in jail. “I had people who had been in jail for more than two years,” he said.

In the first seven months of this year, he reduced his backlog from 988 to 788 cases, even though criminal district court filings are up 20 percent. Despite Thomas’ hard work, his docket still has the longest list of unheard cases of all Tarrant criminal district courts — including Ogaz’.

In County Criminal Court 4, Judge Wallace Bowman was viewed as a hard-working jurist who had done an admirable job of maintaining his docket for nine years. But he became a less productive lame duck after being involved in a scandal a year after being elected to his third term. Police arrested him in August 1999 for public intoxication after finding the married judge with a partially clothed woman in a car in an isolated area in northwest Fort Worth. The woman was not his wife, and Bowman’s judicial career had sustained a fatal wound. Still, he had three years left in his term.

At the time of Bowman’s arrest his docket contained 1,074 cases ready to be tried. Of the 10 county criminal courts, his court ranked sixth. After his arrest, Bowman’s numbers improved, as he appeared to be working feverishly to redeem his reputation. However, his output slowed once he lost the primary election. When he left office in December, his court docket had 1,405 cases ready to be tried, the highest among the 10 courts.

Longtime Fort Worth defense attorney Deborah Nekhom Harris took office Jan. 1 to replace Bowman. “It seems to be a general activity of judges that are leaving office to slack off,” she said.

To tackle the backlog, the inexperienced judge and her court coordinator, Vincent Giardino, sought the help and advice of veteran judges and court coordinators. In June, Harris’ docket was down to 1,109 cases ready to be tried, which ranked her sixth among the 10 courts. However, that could change soon — Harris is six months pregnant, and will be taking maternity leave in the near future, which means cases may pile up again, since visiting judges will be scarcer than hen’s teeth.

Before becoming a judge, Harris once represented a client who spent 500 days in jail waiting for a trial in former Judge Don Leonard’s criminal district court. The defendant finally got to court and was acquitted by a jury in 45 minutes. Leonard retired last year.

Crowding at the downtown jail forced Tarrant County to reopen its Cold Springs lockup in early July, which added another 192 beds. There are also plans to expand the Green Bay jail in the future. Still, the county is housing about 3,500 inmates in a system with a capacity of 3,667.

“Jail is reaching its capacity,” Anderson said. “It’s not overcrowded since we opened up the beds at Cold Springs, but we’re near capacity. You don’t want to exceed 85 percent of space because you need some free beds. You can’t just put everybody that comes in the door next to everybody. You can’t put violent offenders in with first-time offenders.

“We’re at or above 85 percent right now,” he said. “There is no indication that it’s going to slow down or that we’re going to have any relief in sight. Everything points to the population continuing to rise.”

Even if the legislature hadn’t added responsibilities and cut funding for the county’s court system, and even if the fast-growing local population wasn’t increasing the caseload annually, jail overcrowding would still be a problem. The bottleneck in state prisons, Anderson said, is the main reason for the ballooning headcount in local jails. And once again, the sheriff said, the problem is a cutback in state funding — this one for the prison system.

When Anderson became sheriff in 2001, the average waiting time for “paper ready” county inmates to be transported to state prisons was 22 days. Now, most county inmates who have been sentenced to prison sit in his jail for more than a month —33 days — waiting for transport. State law limits the waiting time to 45 days.

“There’s no doubt in my mind that will continue to increase,” he said. “Every extra day we have to keep someone adds to our crowding problem.”

The judicial system and the sheriff’s department (including the jail) represent a major portion of the county budget — about 40 percent. They also represent core responsibilities for the county. So when those costs start to swell, it’s not like commissioners can lance the boil by just dropping a program here or there.

“We’re just going to have to really tighten the belt over the next couple of years and see what happens,” Whitley said.

If legislators keep pushing their budget problems off on the counties, they may find that medicine ball being shoved right back at them. Whitley, for one, said that, if the swelling of court and jail numbers cause a budget crisis for the county, local officials will make sure their voters know whose fault it is.

If the county has to raise taxes, he said, “we [are] going to be sure that the citizens of Tarrant County realize ... why we were having to raise them. And it might just simply be the fact that the state was no longer paying for their share of responsibility.”

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