Gov. Greg Abbott on Thursday convened the first meeting of the newly formed Texas Safety Commission, ramping up the state’s efforts to devise policy solutions in the wake of the deadly shooting targeting immigrants and Hispanics earlier this month in El Paso.
For over four hours, the commission — which includes state leaders, lawmakers and law enforcement officials — met at the Capitol in what Abbott described as the “next step to make sure that we respond robustly and rapidly to the” El Paso attack.
Speaking with reporters at the end of the meeting, Abbott rattled off a long list of items that were discussed — stronger threat assessment efforts, better collaboration between social media companies and law enforcement, strengthening the state’s domestic terrorism law. He also broached more politically sensitive issues related to guns, saying there was discussion surrounding red flag laws, background checks and assault weapons.
Twenty-two people were killed and more than two dozen wounded in the El Paso shooting, which took place Aug. 3 at a Walmart. Authorities believe the gunman, who was arrested and charged with capital murder, published an anti-immigrant manifesto shortly before the massacre, railing against a “Hispanic invasion of Texas.”
Thursday was the first of two meetings that are planned for the safety commission, with the second one scheduled for next Thursday in El Paso. Abbott has also assembled a Domestic Terrorism Task Force in the wake of the shooting, and its first meeting is slated for Aug. 30.
Before the safety commission meeting, Gun Owners of America, a hardline gun rights group, held a news conference outside the Capitol warning the commission against pursuing any proposals that would infringe on the Second Amendment. One of the speakers was Stephen Willeford, the hero in the 2017 Sutherland Springs church shooting.
“Gun owners are done,” Willeford said, clutching the AR-15 semi-automatic rifle he used to take down the church gunman. “We don’t want any more restriction. It does not stop the bad guys.”
On the other end of the political spectrum, Democrats have been pressuring Abbott to do more than he has suggested so far to combat the forces that led to the El Paso massacre.
“Texans deserve a lot more than just talk,” Manny Garcia, executive director of the Texas Democratic Party, said in a statement on the safety commission’s first meeting. “Texans expect actions and solutions to curb racism, white supremacy, and gun violence in our state and in our country. The eyes of the world are on us.”
State Rep. Dustin Burrows, a Lubbock Republican who was silent for weeks amid allegations that he, along with House Speaker Dennis Bonnen, planned to politically target GOP members in 2020, finally went public Thursday — and joined the calls for a secret recording of a controversial meeting to be released.
“I think that the issue will most likely get behind us when the tapes are released,” Burrows told Lubbock radio host Chad Hasty, adding that he wanted the “full, unedited, complete, immediate release of the tapes.”
About a month ago, Michael Quinn Sullivan, a hardline conservative activist who heads Empower Texans, alleged that Burrows and Bonnen, an Angleton Republican, had offered Sullivan’s group long-denied House media credentials if its well-funded political action committee went after 10 GOP members in the 2021 primaries. Bonnen left the room, Sullivan alleged, before Burrows listed off the members. Sullivan later revealed he had secretly recorded the meeting and has since allowed a number of Republicans to listen to it privately.
Bonnen hasn’t explicitly denied Sullivan’s allegations, though he has apologized to House members for saying “terrible things” during the meeting and has asked for the entire recording to be released. Burrows had not publicly commented on the drama until Thursday, though he resigned as chair of the House GOP Caucus last week.
Burrows told Hasty that there was “no physical list” of members to target given to Sullivan during the June 12 meeting, though he did admit to suggesting that, should Empower Texans go after Republicans, the group should do it based on which members voted against a controversial taxpayer-funded lobbying bill during the 86th legislative session.
“We hope you don’t go after any Republicans,” Burrows said, paraphrasing what the emphasis of the June 12 meeting was for him. “But if you’re going to, why are you going after conservatives that actually agree with you? Why aren’t you going after ones who disagree with you?”
Burrows said he “pulled up the record vote” on the piece of legislation and went through names with Sullivan of GOP members that voted against it.
“I made some subjective calls,” he said, “It was very off the cuff.”
The allegation against Burrows targeting certain members had prompted some frustration within the GOP caucus — and the question of whether he had breached caucus bylaws by doing so. Some members said that Burrows’ resignation as chair had alleviated some of the pressure that had built up among House Republicans over the allegations.
Asked about the ongoing Texas Rangers investigation into the allegations, Burrows told Hasty that “there was nothing illegal done in that meeting.”
“I am glad they are going to take a look at this,” he said, “and they’re going to say, what I think I already know, at the end — which is that there was nothing illegal done in that meeting.”
Burrows also said he has not spoken yet with the state agency about the allegations — and noted he did not specifically offer Sullivan media credentials to the lower chamber for his organization.
After Burrows’ interview, Sullivan characterized it as “priceless.”
“Nixonian in denials,” Sullivan tweeted, “and silly in proclamations of good intent. So why did the laughable Mr. Burrows resign as chairman of the #TxLege.”
Burrows’ remarks came hours after Gov. Greg Abbott endorsed the lawmaker for re-election to the House. Abbott touted Burrows’ work as chairman of the House Ways and Means Committee and the key role he played in passing legislation designed to slow the growth of property taxes.
Whatever members of the Texas House think of the recent headlines involving Speaker Dennis Bonnen, the drama curdling the lower chamber has raised the stakes for Republicans and Democrats ahead of an already crucial election cycle — and it could undermine a recent warning the speaker issued about incumbents campaigning against colleagues in 2020.
In July, allegations surfaced that Bonnen, an Angleton Republican, offered a hardline conservative group House media credentials if its well-funded political action committee targeted 10 Republicans in the 2020 primaries. Perhaps more surprisingly, Bonnen allegedly made disparaging comments about colleagues in the process.
The allegations have been largely met with silence among House members who are waiting to see how the situation shakes out. Still, it’s prompted some Republican officials to acknowledge that the issue, should it linger, could distract a party that needs to focus on winning races this election cycle. A number of Democrats, meanwhile, have seized on the chaos, using it as fuel to charge an already energetic group hopeful about coming close or perhaps even flipping the 150-member House in 2020.
If Democrats hold onto the dozen seats they picked up in 2018 and flip an additional nine in 2020, the party would regain control of the lower chamber. Republicans, aware of that possibility, have made clear they’re pushing to take back some of the seats the party lost last cycle.
“The Texas House, you know, we don’t have to lose many seats to lose the House to Democrats,” Lt. Gov. Dan Patrick said in a radio interview this week. And the allegations against Bonnen, he added, “could play a part of that.”
Patrick, like Bonnen and a number of other House members, has called for the entire recording of a June 12 meeting between Bonnen, one of the speaker’s top deputies and Michael Quinn Sullivan to be released. Sullivan, CEO of the insurgent conservative group Empower Texans, revealed he secretly recorded the meeting, which is where his allegations against Bonnen stem from. But Sullivan has not yet released the audio to the public — and may never do so.
“The sooner it’s behind us — however it turns out — is the better,” Patrick told radio host Mark Davis on Monday, after noting that Bonnen had been instrumental in the successes of the 86th legislative session that ended in May.
Last week during a town hall in Tyler, Gov. Greg Abbott gave a similar response, characterizing the Texas Rangers’ investigation into the allegations as “the best thing that could happen” — and emphasized that “we need to get to the bottom of this quickly.” Texas GOP Chairman James Dickey also weighed in, saying in a statement to The Texas Tribune that “we’re 100% focused on 2020 and not letting anything else distract us.”
To be clear, the 2020 general election is still more than a year away and the drama surrounding Bonnen so far has been mostly felt by the 150 members and nearby political observers with a vested interest in what happens inside the House. Bonnen ultimately has to convince his fellow members — not Texas voters — to continue to support his tenure as speaker, which he was unanimously elected to in January.
Some Democrats, though, have tried to cast the allegations as the latest problem inside a party that’s roiling with corruption.
“With backroom deals and Texas Rangers investigations into two of the most prominent Republicans in our state, the modern-day Texas Republican Party has been defined by its corruption and is in shambles,” Abhi Rahman, the communications director for the Texas Democratic Party, said in a statement to the Tribune.
The Democratic Legislative Campaign Committee, a national group that was already honing in on Texas this cycle, has also waded into the drama.
Last week, when state Rep. Dustin Burrows, who was at that June 12 meeting with Bonnen and Sullivan, resigned as chair of the House GOP Caucus, the DLCC said in a statement that House Republicans are “spiraling” — and that the group “is capitalizing off their chaos.” (Burrows has not publicly commented on the matter since the allegations first surfaced.)
For now, the matter has reached a holding pattern. The Texas Rangers could submit a report of their findings — and whether the allegations should be passed off to a prosecuting attorney — in as soon as a couple of weeks, some House members have suggested. And Sullivan, who has allowed certain Republicans to listen to the recording privately, could still make the audio public at any time.
Bonnen, for his part, has been carrying out typical duties as speaker while also trying to mend fences with certain members who think they were implicated in the allegations. Bonnen also recently apologized to members for saying “terrible things” during that June 12 meeting, though he has not explicitly addressed Sullivan’s other accusations.
Meanwhile, there’s also the question of whether the drama has caused even more confusion about a line in the sand Bonnen drew in May.
“The consequence is simple,” Bonnen told reporters on the last day of the 86th legislative session. “If you campaign against another one of your colleagues, two things will happen to you — if there is the opportunity, I will weigh in against you.” And, he added, “if I am fortunate enough to continue to be speaker, you will find yourself not well positioned in the next session.”
Bonnen’s remarks, which came as a surprise to some House members, were seen largely as an attempt to keep the peace that had been on full display for the past 140 days at the Texas Capitol, and, perhaps more subtly, a move to avoid GOP infighting ahead of a competitive general election cycle.
A number of members said the speaker was simply trying to preserve the unity built by both Republicans and Democrats this year to pass sweeping reforms to the state’s property tax and school finance systems — a point Bonnen himself made to reporters.
“You saw this session,” Bonnen said, “We accomplished unprecedented things. … If members of the Legislature are out campaigning against each other, you then don’t accomplish things like that. … What makes the Texas House, I think, the most dynamic legislative body in the country is that we do not politicize our process. That foundationally starts by not campaigning against each other in the elections.”
Others, though, including Sullivan, openly questioned or even criticized the speaker for his comments, arguing that the goal for both parties in 2020 is to play ball in every competitive district, regardless of whether there is already an incumbent.
In June, Bonnen announced he was launching a political action committee, which he had infused with $3 million from his campaign account, to specifically support GOP incumbents running for re-election.
Bonnen also doled out $50,000 to Associated Republicans of Texas, a group that’s made clear its priority is to keep the House red. That donation, some suggested, was evidence that Bonnen had no problem with House members giving money to groups that planned to aggressively campaign for certain candidates — so long as that incumbent wasn’t donating directly to a challenger or campaigning for them in the district.
Some Democrats also appear to be operating under that framework.
State Rep. Chris Turner, a Grand Prairie Democrat who chairs the House Democratic Caucus, said there was a “difference between getting directly involved in someone’s race versus supporting your party.”
“It’s no secret that Democrats want to help elect more Democrats and strengthen their party, just as Republicans want to elect additional Republicans,” Turner told the Tribune. “I intend to actively support organizations and the Democratic Party — and the [House Democratic Campaign Committee] — in what’s going to be a very important election year.”
To that end, state Rep. César Blanco, an El Paso Democrat who heads the House Democratic Campaign Committee, has made clear the group’s priority this election cycle is to flip the 150-member lower chamber back in his party’s favor.
“Texas is a battleground state,” Blanco said in a news release announcing that the group had just received a $100,000 infusion from the DLCC, the national organization.
Barbara Canales’ family history is in some ways shaped by a deeply rooted understanding of bigotry and racism.
Her mother attended high school in Corpus Christi where the Mexican American students were segregated from their white peers; they were assigned separate gym lockers and even required to attend separate senior proms.
Her uncle, Héctor P. García, was a physician who initially wasn’t allowed to serve as one in World War II because he was Hispanic. When he returned to Texas, he founded the American G.I. Forum to advocate for Mexican American veterans. Canales remembers hearing about his fight for fellow veteran Félix Longoria, who was denied burial in a local cemetery because of his ethnicity. He was eventually buried in Arlington National Cemetery.
Now the first Latina to serve as county judge of Nueces County, Canales says her upbringing made her conscious of the sort of hate that was embodied in signs once posted outside of businesses that read “No dogs or Mexicans allowed.”
“All those stories, we carry them and we think they’re behind us and so its painful,” Canales said. “When you see that your history has caught up to you again, it feels strange. It doesn’t feel right.”
The stories of her childhood came screaming back into mind this month when a white gunman traveled across Texas to El Paso with the intent of murdering people who look like her. With state lawmakers set to begin roundtables to form a legislative response to the massacre, Canales and Latinos across the state are wondering what Republican leaders — some of whom have used troubling rhetoric about immigrants and Latinos in the past — will do to protect them after a deadly attack by a 21-year-old who described the onslaught as a “response to the Hispanic invasion of Texas.”
Acknowledging that lawmakers can do little to legislate the hate away, some Latinos say they are looking for a new type of understanding among the state’s mostly white leaders of the way in which the pain of a racist past in Texas is now intersected with its present. For them, that starts with a change in the words state leaders use.
“This isn’t political. This isn’t hyperbolic. This is the reality of the situation,” said Miguel Solis, a Dallas ISD school board member. “Words not only matter but in today’s world, words are having more and more significant existential consequences in our society — a guy drove 10 hours with the intent of slaughtering Latinos.”
In recent weeks, Texas Republicans who control the state have found themselves fielding the calls for action that spike after increasingly frequent mass shootings. But given the racist motive behind the El Paso massacre, they have also been pressured to find the words to talk about racism, bigotry and white supremacy in ways most of them haven’t in recent history.
The early responses to the El Paso shooting by statewide elected officials like Land Commissioner George P. Bush and U.S. Sen. Ted Cruz, who are both Hispanic, marked a change in tone with each official speaking plainly in linking the attack to “white terrorism” and white supremacy.
But when several days went by after the shooting without a similar, loud condemnation from Gov. Greg Abbott, the silence filled some Latinos with dread about what would — or wouldn’t — come next.
U.S. Rep. Veronica Escobar, D-El Paso, and other elected officials who represent the area were calling on state leaders to denounce the white supremacy that drove the gunman from the Dallas area to an El Paso Walmart where he opened fired and ultimately murdered 22 people — most of them Latinos.
If they didn’t, Escobar warned, they’d be giving it cover.
“It makes me feel like they don’t understand the issue,” Mario Carrillo, who is from El Paso and serves as the Texas director of the immigration reform advocacy organization America’s Voice, said days after the massacre. “I’m concerned that the leaders in our state aren’t really willing to have the conversation about what it was that led to the shooting in El Paso in the first place.”
At the beginning of a meeting with El Paso’s legislative delegation as those complaints were growing louder, Abbott’s brief public remarks made no mention of the gunman’s reported motive and the racist manifesto authorities were investigating.
Behind closed doors, though, the delegation composed completely of Democratic Latinos stressed to Abbott, Lt. Gov. Dan Patrick and House Speaker Dennis Bonnen that the language used in the aftermath of the attack was consequential. One member of the delegation suggested that if state leaders did not mirror the words the affected community was using to process the shooting — white supremacy, white nationalism, racism — they risked giving the impression that they weren’t actually listening, according to a person in the room who asked for anonymity in order to speak candidly.
Speaking to reporters after the meeting, Abbott — whose office did not respond to questions for this story — characterized the state’s response as one that needed to tackle “broad-based challenges” like domestic terrorism, white supremacy and racism. (He announced the creation of a Domestic Terrorism Task Force a week later.)
“At the end of the day, it’s a start,” Canales, the county judge, said of the change in words. “I relish that start because it seems to me that how we got here, how this moment of hate got to El Paso is because we didn’t do enough understanding of one another.”
For some, the El Paso massacre went a long way in doing away with the pretense that harsh rhetoric about immigrants didn’t affect the people who look like them. In the aftermath of the shooting, Latinos pointed out that the gunman didn’t stalk shoppers to ask for their papers or birth certificates before opening fire.
“There’s no going around the conversation at this point. … Actually using the term racism, actually using the term white supremacy is a step forward,” said Krysta Ortíz, a nonprofit program director currently working in the New York area who still claims residency — and still votes — in her hometown near San Antonio. “But the endgame is to dismantle it. The conversation has to progress to what are we doing.”
To Kim Pineda, calling the El Paso massacre what it is isn’t nearly enough when he lives with enough anxiety about his visibility as a Latino man living in Lubbock that he carries his passport almost everywhere he goes.
The 60-year-old music historian started attending what’s known as “coffee with a cop” so they recognize him if someone ever calls the police on him while he’s on his usual runs through his neighborhood. Pineda is acting based on experience. Growing up in a mostly white neighborhood in California, he was stopped by police probably once a month on his walks to school.
Pineda believes it’s incumbent on elected officials — from the governor to his congressman to his state representatives — to actually call out racist rhetoric, especially from President Donald Trump. But the reality has left him feeling “helpless and hopeless.”
“I’m upset big elected Republicans are being scared or quiet,” Pineda said.
Some wonder whether state leaders speaking in those terms will actually lead to a real change in the political discourse after one of the deadliest attacks on Latinos in recent history. That sort of reform may not change a white supremacist’s attitudes, they argue, but maybe they’d feel less emboldened.
“When we have leaders who hide behind the rhetoric to advance their politics … we perpetuate violence,” said Antonio Arellano, the interim executive director of Jolt, a progressive organization focused on mobilizing young Latino voters.
The manifesto linked to the shooter repeatedly decried a Hispanic “invasion” of Texas and warned of Texas Hispanics’ burgeoning political clout through which they would “take control of the local and state government” and change “policy to better suit their needs.”
Though at first he largely focused on the role of video games and social media in mass shootings, Patrick has since echoed Abbott in describing the El Paso attack as domestic terrorism and has called it “racist violence.” But like Trump, Patrick has previously decried an “invasion” of immigrants across the state’s southern border. On conservative shows, he’s talked about a “manufactured cover-up” by Democrats and the mainstream media who want millions of immigrants to “pour in” to the country so they can turn them into votes and “control the country.”
A spokesperson for Patrick did not respond to a request for comment about the lieutenant governor’s past choice of words.
At a town hall in East Texas less than two weeks after El Paso, Abbott faced a question about the president’s rhetoric, which a few fellow Republicans like U.S. Rep. Will Hurd of Helotes have condemned as divisive and hurtful to people of color.
Abbott responded with one of the president’s talking points — low unemployment rates among black and Hispanic workers.
“You mentioned, if you would, rhetoric, and what I find voters really look at is results,” Abbott said.
In a two-page fundraising mailer dated Aug. 2 — a day before the El Paso massacre — Abbott spoke in alarmist terms about the need to “DEFEND” Texas at the border, cautioning the supposed political implications that could come with unchecked illegal immigration.
“The national Democrat machine has made no secret of the fact that it hopes to ‘turn Texas blue.’ If they can do it in California, they can do it in Texas — if we let them,” Abbott wrote in the fundraising appeal, which was obtained by The Texas Tribune.
Though only U.S. citizens can vote, the governor signed off with another pointed warning: “Unless you and I want liberals to succeed in their plan to transform Texas — and our entire country — through illegal immigration, this is a message we MUST send.”
Hector De Leon, a chairman of the Associated Republicans of Texas, believes it’s unfair to link the El Paso massacre to the rhetoric of Trump and other Republican leaders. But he was troubled by the governor’s words and he stands by his previous indictment of Patrick’s use of the term “invasion” as racist.
Doing more of the same after El Paso, he argued, would be detrimental.
“It’s easy to go out and shoot a bunch of ‘Mexicans,’ if you don’t view them as people,” De Leon said. “I think state leaders and national leaders cannot pander to the worst in human nature or the worst in their party; they can engage in rhetoric that shows were more than that.
“Instead of talking about invasions,” De Leon added, “we need to talk about how we can make America a better place.”
When Hurricane Harvey’s devastating rains began overwhelming the Houston area, Donna and George Duggan didn’t immediately evacuate their Katy home.
After all, the Duggans, both 62, had lived there for the better part of 20 years and the house had never flooded. Until one Sunday morning in late August 2017, when, after a night of heavy rain, George Duggan woke up his wife with a warning.
“He said, ‘Donna, I think we’re going to flood,” Donna Duggan said. “So we got packed up.”
The Duggans, and their Corgi, Cooper, were rescued from their home by volunteers just as rising flood waters approached their front steps. Had they known decades earlier that their home sat in a designated flood area known as Barker Reservoir, Donna Duggan said they would have thought twice about their decision to live there.
“We would never have bought it,” she said of the house that would eventually flood with two feet of water and require months of cleanup and renovation.
Starting Sept. 1, the state will require homeowners to disclose more information about flood risks and flood history before they sell their property. Previously, sellers in Texas had only been required to disclose whether their home was in a 100-year floodplain — an area, typically along a river or bayou, that has a 1% chance of flooding every year. Senate Bill 339, which Gov. Greg Abbott signed earlier this year, expands that disclosure to include whether the home is located in a 500-year floodplain, a flood pool, in or near a reservoir, and whether the home has flooded or may flood in a catastrophic event.
It’s a step toward transparency for homebuyers in Texas, but figuring out a property’s true risk of flooding can be tricky, and others are worried about the impacts to home and insurance prices.
“That’s going to pose difficulties for the seller,” said Mary Conner, a Houston attorney who specializes in environmental litigation. “Under Texas law, buyers can sue sellers under certain circumstances for certain failures to disclose.”
Daniel Gonzalez, director of legislative affairs for Texas Realtors, said it’s going to be best for sellers to be honest about the state of their homes — flood risks and all. But if a homeowner is unaware of risks and the home floods after they sell it, the burden of proof would be on the buyer.
“If a buyer does bring a lawsuit forward, they would have to prove the seller knowingly kept that information from the sellers disclosure notice,” he said.
For a homeowner to determine if they need to disclose flood risks, they could look up the location of their home relative to floodplains using FEMA’s map locator tool. But there’s one problem — floodplains aren’t always an accurate indicator of flood risks.
Amanda Bryant is director of operations for National Flood Insurance (an organization not affiliated with the federal government flood program) that works to inform homeowners of all the factors that could mean flooding for their property. Bryant said because FEMA maps don’t take into account land development, rainfall or changing weather patterns, they leave owners woefully uninformed of their true risks of flooding.
“They’re not looking at elevation differences, they’re not looking at how the land is being used,” Bryant said. “All of that changes flood risks substantially. Water will soak into soil but it won’t soak into asphalt.”
The maps, which are based on historical data, are supposed to be updated regularly, but that process often encounters delays. Harris County, for example, was supposed to have updated maps in May 2018, but is now scheduled to have an update in November. In March, FEMA announced it would change the way it determines flood risks — revamping methodology that hasn’t changed since the 1970s. The new method, called Risk Rating 2.0, should debut in 2020.
Thousands of Houston-area properties outside of the 100-year floodplains flooded during Harvey, according to city data. Many people didn’t know their homes sat within the boundaries of two reservoirs — Addicks and Barker — that had been built in the 1940s by the U.S. Army Corps of Engineers. But those weren’t the only people whose homes flooded.
During Harvey’s epic rain, as the water in the reservoirs got to a critical level, the Corps opened the dams from Addicks and Barker into Buffalo Bayou, flooding thousands of homes downstream of the reservoirs, many of which sat outside of designated floodplains.
According to data from the city of Houston, the majority of structures impacted by Harvey were outside of the 100- and 500-year floodplains. Even when excluding properties in the Buffalo Bayou and San Jacinto watersheds, 46,000 structures inside floodplains were impacted compared to 65,000 structures outside floodplains.
If those homeowners decide to sell their properties in the future, they will be required to inform potential sellers of past flooding or future risks on the seller’s disclosure form.
While it does mean homebuyers will be better-informed about catastrophic risks, it also means current owners could be forced to take unforeseen losses when they decide to sell.
“Every realtor’s concerned that it’s going to have an impact,” said Bill Baldwin, owner of Boulevard Realty in Houston. “You’re going to get a number of different things that are going to impact selling homes — some of it is disclosure, some of it’s new flood maps — that will greatly impact our ability to sell some of these houses that have been easier to sell in the past.”
The biggest impact the law will likely have is to spur more people to buy flood insurance policies. Flood insurance is separate from homeowners insurance and optional for homes that sit outside of 100-year floodplains. As of 2017, Texas had about 665,000 flood insurance policies in effect. But many feel that number is far too low, and that floodplain maps don’t do a good job of conveying the true risk of flooding.
“It’s a constant battle to keep people’s minds set to the level of risk that we have,” Baldwin said. “We’re a society that moves on and doesn’t think about something relatively quickly, whether that was the last storm or the last situation. So, I think it’s a constant battle to keep on peoples’ mind the level of risk and their need for flood insurance.”
One of the stipulations of the new law is that homeowners must disclose to buyers if the property may flood under catastrophic circumstances. Gonzalez, with Texas Realtors, said lawmakers were likely trying to apply that rule to people who live near reservoirs.
“In the real world, I think what’s going to happen is someone who had previous flooding is obviously going to be checking that box,” he said. “Obviously, I think the word catastrophic could have a different definition to different people, but I think for the most part, you’re going to see people fill that in if they’ve had previous flooding of the property.”
Huffman did not return several requests for comments about the law or her intentions of that section.
The Duggans, however, have already decided to embrace the notification — and even plan to offer to pay the buyers for several years of flood insurance when they eventually sell.
“We’ve already got the paperwork to show what they did to remediate the flooding,” Donna Dugan said. “I think you have to be honest.”
Baldwin called SB 339 “a step in the right direction” and said there’s still more that could be done to keep homes safe from flooding. The new law goes into effect on Sept. 1, but regardless of where a home falls on a map, Donna Duggan wants to caution homeowners to err on the side of caution regardless of whether they are buying, selling or staying put.
“The first thing that I would say to anybody that lives along any of the Gulf Coast or any of the coasts?” she said. “Get flood insurance.”
Gov. Greg Abbott on Thursday endorsed state Rep. Dustin Burrows for reelection, giving the Lubbock lawmaker a vote of confidence as he deals with accusations that he and House Speaker Dennis Bonnen schemed to target fellow Republicans in the 2020 primaries.
“I am proud to endorse Representative Dustin Burrows for re-election, and I am grateful for his strong leadership in the Texas House,” Abbott said in a statement. “Representative Burrows is a servant leader who puts the needs of his constituents first, and I look forward to continuing our important work together as we create an even brighter future for the state of Texas.”
Abbott’s endorsement comes days after Burrows resigned as chairman of the House Republican Caucus amid the ongoing fallout from the scandal with Bonnen, which the Texas Rangers are now investigating. Conservative activist Michael Quinn Sullivan has alleged that during a June meeting with Bonnen, the speaker offered to give Sullivan’s organization, Empower Texans, media credentials if it worked to unseat 10 House Republicans — a group that Burrows detailed after Bonnen left the room.
Bonnen initially pushed back on the allegations but has since copped to saying “terrible things” in the meeting, which Sullivan secretly recorded and has been playing for select Republicans. Burrows has not publicly commented on the drama.
In his first public remarks on the scandal last week, Abbott expressed gratitude that the Rangers were looking into it and said it is premature to say whether Bonnen should resign. But aside from the scandal, Abbott has good reason to back Burrows: As chairman of the House Ways and Means Committee, Burrows helped shepherd Abbott’s top priority during the most recent session: property tax reform.
“As the author of House Bill 2, Representative Burrows championed the sweeping property tax reforms that Texas taxpayers demanded,” Abbott said in the statement.
Burrows, who announced he was running for reelection Wednesday, is up for a fourth term in 2020. He has drawn a primary challenger, David Speer, in his solidly Republican district, as well as a Democratic opponent, Addison Perry-Franks.
(Audio unavailable. Click here to listen on texastribune.org.)
On this week’s TribCast, Emily talks to Ross, Alexa, Alex and Neena about the biggest new state laws taking effect Sept. 1, a crisis facing indigent defense in Texas, the new Texas secretary of state and the latest from the presidential campaign trail.
The Trump administration is moving to formally terminate a federal court settlement restricting how long U.S. officials can detain migrant children with their parents and replace it with a new rule that could expand family detention and dramatically increase the time children spend in custody.
The Department of Homeland Security and the Department of Health and Human Services will issue a new rule Friday to withdraw from the Flores Settlement Agreement, the federal consent decree that has set basic standards for the detention of migrant children and teens since 1997.
The new rule would eliminate a 20-day cap for detaining migrant children and create a new licensing regime that would make it easier for federal officials to expand family detention nationwide.
Although the rule is set to take effect 60 days after it is published, officials expect the implementation to last longer. Advocates have vowed to challenge the rule in court, which will put the change in front of U.S. District Judge Dolly M. Gee, who denied the administration’s request last year to extend family detentions.
But officials said they hoped the threat of longer detention would deter the crush of Central American migrants at the U.S.-Mexico border and complement existing enforcement measures. Border apprehensions have slumped more than 40 percent since May, a major drop officials have attributed to increased enforcement in Mexico, but officials worry about a resurgence in the fall.
Exercising greater control over family detention would mark a major coup for the White House, which has said the Flores agreement is among the most significant “loopholes” spurring mass migration at the border. Smugglers have sold families discounted trips to the border and instructed them to seek asylum because the Flores agreement meant they were likely to be released. Such families are rarely deported, officials said.
“Today, the government has issued a critical rule that will permit the Department of Homeland Security to appropriately hold families together and improve the integrity of the immigration system,” Acting DHS Secretary Kevin McAleenan said in a statement, before traveling to Panama Wednesday. “This rule allows the federal government to enforce immigration laws as passed by Congress and ensures that all children in U.S. government custody are treated with dignity, respect, and special concern for their particular vulnerability.”
DHS officials said in a briefing Tuesday that they have no immediate plans to increase the number of family detention beds. Once the rule takes effect, officials said, they hope to complete migrants’ initial immigration proceedings within two months, which is triple the time children are held now.
Advocates for immigrants say the Flores agreement and other laws provide essential protections for children fleeing hunger, violence and poverty in other countries. They say the Trump administration has harmed migrant children by holding them in squalid conditions on the border and forcibly separating hundreds from their parents and should not be given wider latitude to detain them.
Peter Schey, one of the lead attorneys in the class-action lawsuit that led to the Flores settlement, said when the Trump administration proposed the new rule nearly a year ago that it was “doomed to failure.”
The Flores Settlement Agreement generally compels the U.S. government to move children from austere border jails into licensed, child-appropriate facilities as expeditiously as possible. The agreement does not specify a time period, but Gee ruled in 2015 that officials could not hold children in unlicensed facilities longer than 20 days — the time the government said it needed to process their initial asylum screenings — after the Obama administration expanded family detention.
Trump administration officials said the new rule seeks to address Gee’s concerns by allowing the federal government to create its own licensing regime, complete with third-party inspections and audits that will be made public.
DHS officials said expanding family detention helped reduce family crossings under the Obama administration. Family apprehensions fell from 68,000 in 2014 to nearly 40,000 in 2015. But family crossings rose again in 2016 and have hit record highs over the last year.
More than 432,000 members of family units have been taken into custody from October through July, a 456 percent increase over the same period the year before, according to U.S. Customs and Border Protection. Most have been released in the United States, officials said.
U.S. Immigration and Customs Enforcement has three “family residential centers,” two in Texas and one in Pennsylvania, with a combined capacity of about 3,000 beds. One facility is limited to adults.
DHS officials said Tuesday that detaining and deporting even a small fraction of the families, perhaps 5 percent to 10 percent of apprehensions, could send a powerful message to smugglers and would-be migrants in Central America.
While Trump administration officials say they do not plan to immediately expand family detention, they have explored the possibility. As illegal crossings rose last year, the Trump administration directed the Pentagon to identify sites with space for up to 12,000 beds for families.
President Trump and his officials targeted the Flores agreement after their widely condemned “zero tolerance” policy last year failed to deter border crossings. The policy separated more than 2,700 children from their parents to prosecute parents for crossing the border illegally. Parents went to criminal court and then immigration detention, while their children were sent to federal shelters.
In a June 20, 2018 order, Trump ended the separations and directed the Attorney General to ask Gee to let the government detain families together “throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”
Gee declined, calling the move “a cynical attempt, on an ex parte basis, to shift responsibility to the judiciary for over 20 years of congressional inaction and ill-considered executive action that have led to the current stalemate.”
Officials rolled out the proposed replacement of the Flores rule in September, and have noted that ICE family residential centers are more comprehensive than the austere Border Patrol holding facilities that have been seen in news reports and criticized by Democratic lawmakers. ICE family facilities have beds, classrooms for children, access to lawyers, health care, sports, and cafeterias.
Advocates, however, say detaining children increases their risk of trauma or illness. Several children have died after being taken into federal custody over the past year, and one of them died after being released from an ICE facility.
Editor’s note: If you’d like an email notice whenever we publish Ross Ramsey’s column, click here.
Ignore for a moment the ways in which public school students are tested and how the state grades its schools and school districts based, in part, on those test scores.
Focus on what the state does with that information. How the institution of public education in Texas responds to what it thinks are trouble spots.
Standardized tests are remarkably unpopular. And to extend the influence of those test grades to make consequential lists of good and bad schools is to put quite a lot of eggs into a controversial basket.
Those tests — it’s always “high-stakes tests” in the civic war of words — are the stuff of political campaigns, legislative debates, endless school board hearings, teacher conferences, education vendor fights and stressful handwringing by students and parents alike. But they’re just like smoke alarms, put in place to detect trouble.
We don’t have an agreed-upon way to measure how students are coming along and whether the schools are doing what they’re supposed to be doing. The current setup clearly needs a lot of work. It would help to have report cards for schools and districts that everyone trusted, that reliably pointed educators to things that are working and things that aren’t.
But there’s a lot of work to be done on the other half of accountability: Fixing what’s broken.
Texas governments, from the historic pink building in the center of Austin to the board of the smallest school districts in the state, seem to have an extraordinary tolerance for mediocrity in public schools.
The punishments for schools seen by the state as failing can be severe. The Texas Education Agency gets involved when a school or a district gets a D or an F in the state ratings, and can pull some of them out of trouble. But a school district can go five years in a row with a persistently failing campus before it faces closing that school or having the state take over the district. Five years is 38% of a Texas student’s 13 years in primary and secondary school; that’s a long time, in education years, to wait for improvement.
And it’s independent from standardized testing and other controversial measures of performance; no matter what the measure of success, this is about what public officials do when a school or a district doesn’t meet the standard they’ve set.
The idea behind measuring the quality of public education is simple enough for a high school dropout to understand: Texans have wanted schools at the center of government services since the state was organized, and they want to know whether the schools they’re paying for are doing the job they’re supposed to do.
We grade everything from water quality to meat, from military readiness to traffic congestion, from crime rates to conditions in nursing homes. Why wouldn’t we measure schools, too?
Texas has decided to educate its children. State laws require schools to provide every child in the state with a solid, basic education — in a perfect world, essentially the same deal for the kids in Highland Park in the Dallas area as for the kids in Kermit in the Permian Basin.
And if that’s going to work, there’s got to be a way to see how the schools in one place compare to schools all over the state, and to see whether public education in general is getting the job done.
The debate for how to measure that is well underway. Maybe the tests in place now aren’t the best way to do it. And there’s a lot to digest about how much harder it is to educate some kids than others, whether that’s based on economics, race, home life or other factors. There’s also a lot of information out there, strategies for educating students who come to class without all of the advantages of other kids in their own schools and in schools around the state.
Educators with the room to work can teach just about anyone.
The grading, scoring and ranking is an attempt to find out where help is needed, to get the right resources in place to educate every Texas kid, like the state Constitution says. And then to send that help — maybe in less than five years. We measure fire departments partly by their response times. Why not measure the Texas education system the same way?
A staunch claim of innocence and doubts over forensic science have long engulfed the Texas death penalty case of Larry Swearingen. On Wednesday, for the sixth time, he is set for execution.
The now 48-year-old man has lived on death row for nearly two decades, consistently expressing his innocence in the 1998 strangling death of Melissa Trotter, a 19-year-old community college student in Montgomery County he has said was his friend. Multiple state courts have taken execution dates off the calendar over the years to look into different issues surrounding Swearingen’s conviction, but prosecutors and Trotter’s family remain firmly convinced he is her killer.
Now, unless the U.S. Supreme Court or Texas Gov. Greg Abbott steps in, Swearingen will be put to death by lethal injection in Huntsville after 6 p.m.
Trotter had been missing for weeks before her body was found by hunters in the Sam Houston National Forest on Jan. 2, 1999, with a leg from a pair of pantyhose tied around her throat. Law enforcement had already pegged Swearingen as the main suspect in her disappearance, arresting him on unrelated traffic warrants three days after Trotter had last been seen with him on Dec. 8, 1998. Based on what judges have since called a mountain of circumstantial evidence, he was convicted and sentenced to death in 2000.
Swearingen and his legal team have relentlessly fought his conviction and death sentence, gathering numerous scientists who concluded that, based on the condition her body was in when it was found, Trotter was killed within two weeks of being found — more than a week after Swearingen was already behind bars. They also argue against the science used by state experts who matched a leg of pantyhose in his home to the piece used to strangle Trotter. And they have balked at the courts’ dismissal of blood flecks found under Trotter’s fingernails that did not match Trotter nor Swearingen.
“They are going to execute someone that the legitimate forensic science has proven innocent,” said James Rytting, Swearingen’s attorney, Tuesday. “And the execution is going through on the basis of other forensic science that is borderline quackery — in fact it is quackery.”
The Montgomery County district attorney’s office, however, has zero doubt that Swearingen is Trotter’s killer. Kelly Blackburn, the office’s trial bureau chief, recited a laundry list of circumstantial evidence prosecutors obtained to secure and uphold Swearingen’s conviction, including cell phone records that put him near the spot Trotter’s body was found, her hair in his truck, and some of her school papers being found near his parents’ home.
Blackburn also noted Swearingen’s actions after Trotter’s disappearance — saying he falsely reported a burglary when he and wife came back to their home in disarray. Trotter’s brand of cigarettes and a lighter wereinside, even though neither Swearingen nor his wife smoked. And Swearingen also wrote an anonymous letter in Spanish with details of the crime scene to pull suspicion away from him. Swearingen later admitted to writing the letter, claiming the details came from an autopsy report he read. Blackburn said Tuesday some of the details were only known by police at the time.
“When you look at all the forensic evidence, and then all of the other circumstantial evidence…the only person who has ever been tied to this murder is Larry Swearingen,” he said.
The main conflicting points involving forensic science in Swearingen’s case are Trotter’s time of death, the matching of pantyhose and blood flecks found with her fingernail scrapings. The courts have long looked into the issues, sending Swearingen’s case back for reexamination several times and cancelling five previously-scheduled execution dates.
Swearingen brought forward multiple forensic experts who contested the state’s theory that Trotter was killed on the day she went missing after being seen with Swearingen, 25 days before her body was found — including the original medical examiner who said as much at trial. They instead said her body was decomposed to the point she would only have been dead for about two weeks. Blackburn said those expert statements don’t stand up to scrutiny, and that other factors, like the temperature and her body shape, needed to be taken into consideration. He said the temperature was below 30 degrees for 12 of the days she was missing.
Most recently, Swearingen has filed appeals relating to the pantyhose and blood flecks, bringing forward new letters the Texas Department of Public Safety crime lab director sent to his attorneys in the last month. Swearingen argued the letters contradict testimony from trial that led to jurors convicting him in Trotter’s murder.
Brady Mills with DPS wrote in a July letter that, if the DPS criminalist at trial were to testify today, she would still report that the two pieces of pantyhose found in Swearingen’s home and on Trotter’s neck were once connected, but she would exclude the statement she made in 2000 that they were a match “to the exclusion of all others” because the agency’s terminology has changed and that association is no longer made.
Rytting said the pantyhose matching is an example of “quackery,” and said the pieces did not match at first but were “pushed and pulled” until they did. Blackburn emphasized though that Mills’ letter didn’t contradict the original testimony, and said the two pieces of fabric were an easy match.
“No reasonable person would believe that they did not come from the same pair of pantyhose,” he said.
A second letter from Mills, however, stated a DPS witness should have given a “more appropriate answer” regarding blood flecks found on Trotter’s fingernails after they were submitted to the agency. The lab analyst at trial said the blood, which Blackburn said amounted to a the size of a pinpoint, possibly came from contamination in the lab — not the crime scene. She said this was because the brighter color and composition of the blood indicated it was from after her death.
Mills said the analyst didn’t have enough information of the collection and storage process to make that opinion, and that the blood could have come from contamination or the actual evidence.
Rytting says the blood points to another man as Trotter’s murderer, adding that witnesses came later came forward to say she had been afraid of someone else who was threatening to kill her.
The courts have all rejected the most recent appeals, with a federal appellate court on Friday nodding to an earlier ruling from the Texas Court of Criminal Appeals regarding the blood flecks.
“We are not persuaded that results showing the presence of another DNA donor in the fingernail scrapings would overcome the ‘mountain of evidence’ of the [Swearingen’s] guilt…” wrote the Texas court in 2014. “There are many ways someone else’s DNA could have ended up in the victim’s fingernails.”
Swearingen also filed a last-minute appeal in federal court arguing against Texas’ lethal injection methods, asking for testing of drugs whose expiration dates have been extended after retesting or an alternative execution method of a firing squad. That appeal was denied by the district court Tuesday.
Rytting said Tuesday he planned to file a last-minute appeal with the U.S. Supreme Court regarding the DPS letters. Abbott could also issue a 30-day temporary stay on his own, though he has never done so. Eleven other men are scheduled for execution in Texasthrough December.
Many Texas educators and advocates are frustrated in the week after the state released letter grades rating their school districts and campuses, as they work to decipher the potential impacts for their schools.
Though many school superintendents agree the grades are inaccurate measures of school performance, they still feel pressure to get high marks or else risk receiving harsh state penalties, including the forced closure of a low-performing school. A lot of buzz surrounds the fate of Houston ISD, the state’s largest district, which might see its elected school board replaced with a state-appointed board of managers because of one high school that has failed to meet academic standards for seven years.
Texas released its first official grades for school districts last year, moving away from a pass/fail system. This year, individual campuses began receiving letter grades. State officials argue the letter grades are more transparent for parents who want to understand how a school will educate their children.
But the trends in the data sometimes raise more questions than they answer.
Here are a few takeaways from this year’s ratings:
The majority of Houston ISD’s schools are thriving, but one long-struggling school could result in a state takeover of the district.
The state’s largest school district is at risk of a forced state takeover of its school board, meaning a state-appointed board of managers would make key decisions for Houston ISD’s279 schools. Wheatley High School, in Houston’s historically black Fifth Ward, received its seventh consecutive low rating from the state. Since 2015, any school that gets five or more consecutive low ratings puts the district at risk for harsh sanctions, at the will of Texas Education Commissioner Mike Morath.
“Every elected official who voted for [House Bill] 1842 —which set mandated sanctions of school closures or state takeover of school boards—should be held accountable for any takeover in HISD based on the failure rating of one school out of 280 campuses,” said Zeph Capo, president of the Texas chapter of the American Federation of Teachers, in a statement last week. “These officials should be stepping up now to stand with us in correcting this mistake.”
Even if Wheatley High School had performed well in this year’s ratings, Houston ISD would still face a potentialstate takeover due to its dysfunctional school board. Several other school districts, including a few in San Antonio, have been taken over due to persistent school board financial mismanagement and corruption.
Houston ISD isn’t the only district facing state sanctions this year.
The first day of school was no picnic for Eddie Bland, superintendent of Snyder Independent School District in West Texas.
Last Thursday, the same day the doors opened for 2,500 students in four schools, Bland also found out Snyder’s junior high had failed to meet academic standards for the fifth year in a row — meaning the school district will likely be penalized.
“I am heartbroken and was spirit-broken to a certain extent. Then I had to back up and say, ‘We have 600 students showing up to the campus that we have to show up for,'” said Bland, who took over as superintendent last school year. The rural district has struggled to keep teachers from leaving at a rate that had escalated to a high 35% before he arrived, which he said contributed to plummeting student performance.
Snyder ISD, along with Houston ISD and Shepherd ISD, could have its low-performing school forcibly closed or its school board taken over by the state, because of repeated low ratings. Most of Snyder’s students are economically disadvantaged and Hispanic, which Bland argues put the schools at a disadvantage in the ratings.
“I have some concerns about the A-F accountability system personally. I think there are some flaws, some significant biases against poverty and diversity,” he said. “That’s still no excuse for having an F-rated campus.”
Most Ds and Fs went to schools and districts with higher rates of economically disadvantaged students than the state average.
In Texas last school year, 60.6% of students were identified as economically disadvantaged, meaning they qualified for free or reduced-price meals. Of a total of 8,838 schools, 954 with student poverty rates above the state average received Ds or Fs, while just 151 at or below the state average scored that low. The same trend was true for school districts.
Schools with very low poverty rates often performed much better. Just one with a poverty rate at or below 30% received an F: that was the single-campus charter Legacy School of Sport Sciences, outside of Houston, which focuses on the athletics profession. Just 29% of its students are economically disadvantaged.
Many educators refer to this trend to point out the flaws with the state accountability system: It’s much less likely that a school will perform poorly if its students come from higher-income families. The majority of a school’s rating is based on state standardized test scores, and low-income students tend to perform lower on those tests.
South Texas school districts performed even better than last year, despite high rates of student poverty.
No school district in the state’s South Texas region, which includes the Rio Grande Valley, received a score lower than a B, despite rates of economically disadvantaged students far higher than the state average. That region performed even better than last year. Texas divides its school districts into 20 geographical regions.
Of the districts in that region, Valley View ISD, on the border with Mexico, was the traditional school district with the highest poverty rate — 91.9% — to also receive an A from the state. Its superintendent last year touted the district’s free meals and medical care for families who cannot otherwise afford them.
Across the state, 22 school districts and 296 schools with poverty rates at 80% or higher received As. State education officials have said this is proof that “demographics do not equal destiny” and that the system makes it possible for high-poverty schools to succeed.
Democratic presidential candidate Julián Castro tweeted Tuesday morning that he has achieved the polling requirement to qualify for the primary debate in Houston this fall.
Castro received 2% in a CNN poll conducted by the survey and research firm SSRS that was released Tuesday. To qualify for the September and October debates, candidates must hit the 130,000-donor threshold and get 2% support in four polls — a higher bar than what the national party set for the first two debates in Miami and Detroit. Castro reached 130,000 donors, surpassing the other threshold for fall primary debates, in July.
“Thank you to our growing number of supporters across the country,” Castro tweeted Tuesday morning, along with a link to a CNN article stating he got a fourth qualifying poll to participate in the debate. The other Texan running for president, Beto O’Rourke, has already qualified for the Houston debate.
Aside from O’Rourke and Castro, eight candidates have now met the qualifications for the fall debates: former Vice President Joe Biden, South Bend, Indiana, Mayor Pete Buttigieg, U.S. Sen. Kamala Harris of California, U.S. Sen. Cory Booker of New Jersey, U.S. Sen. Amy Klobuchar of Minnesota, U.S. Sen. Bernie Sanders of Vermont, U.S. Sen. Elizabeth Warren of Massachusetts and businessman Andrew Yang.
After years of failed attempts to eliminate it, the Driver Responsibility Program will end on Sept. 1. A measure signed into law by Gov. Greg Abbott in June, House Bill 2048, shuttersthe 16-year-old program that left more than 1 million people unable to keep or renew their driver’s licenses. Lawmakers from both chambers and parties criticized the program for adding additional annual fees — ranging from $100 to $2,000 depending on the offense — on top of the price of traffic tickets. Texans had their licenses suspended if they didn’t pay or enter into a payment plan within a certain number of days. For many drivers, those surcharges grew to thousands of dollars on years-old tickets and left them without a license for, at times, more than a decade.
“It’s hard to overstate the harms of the program,” said Emily Gerrick, senior staff attorney with the Texas Fair Defense Project. “It created this really horrible cycle for drivers who lost their license because they couldn’t afford to pay thesurcharge. And then kept getting more surcharges because they didn’t have their license.”
Efforts to pass legislation previously hit obstacles, however, as those collected fees are used to fund the state’s emergency trauma center care system. But soon, that money will come from other sources, those surcharges will be waived and more than 600,000 Texans will immediately be eligible to have their licenses reinstated.
Here’s what you need to know ahead of the repeal:
Who is eligible to have their license reinstated — and how?
Of the nearly 1.5 million Texans who were unable to keep or renew their licenses under the Driver Responsibility Program, there are a few different groups drivers might fall into when attempting to get their licenses reinstated after Sept. 1:
Drivers whose fees and suspensions stem solely from the Driver Responsibility Program will either immediately be eligible to have their driver’s licenses reinstated (about 635,000 people) or be eligible after paying a reinstatement fee of about $100 (about 350,000 people). Drivers can check which group they belong to online.
Texans whose licenses were suspended for additional reasons outside of the Driver Responsibility Program (about 398,000 people) will be eligible to have suspensions lifted after resolving other issues.
Drivers whose licenses were expired for under two years may be eligible to replace them online. If more time has passed, drivers will have to re-apply and pass written, vision and driving tests before obtaining a new license.
What happens to unpaid surcharges?
All surcharges under the Driver Responsibility Program will be waived after Sept. 1 and no future fees will be assessed, according to the Department of Public Safety. Drivers will still be responsible for any other suspensions, fines or fees on their driving records. In the time between June and September, drivers are still expected to pay those surcharges — though DPS confirmed if someone’s license was already suspended under the program, they wouldn’t face additional penalties for not paying.
License suspensions that resulted from surcharges, however, will remain on drivers’ records.
Any payments made prior to the repeal will not be refunded.
Where will the state’s trauma care center system funding come from now?
About $70 million — or about half of all surcharge fees — has been directed toward the funding during each of the past few years, according to the Legislative Budget Board. That helped provide more Texans with reliable care for health crises: the number of state trauma centers reached about 290 in 2018 — from under 250 a dozen years prior. The elimination of the DRP slashes that funding, but numerous health systems and hospitals supported the repeal during the legislative session. Here’s why:
General state traffic fines, currently at $30, also are partially directed toward supporting trauma care. Starting Sept. 1, those costs will be hiked up to $50. The bill also tacked on $2 in additional annualcosts to automobile insurance fees.
Another source of revenue will come from higher fines for driving while intoxicated — which will increase from $1,000 to $3,000 for a first offense, and up to $6,000, depending on the blood alcohol level. The high fees worry some criminal justice advocates, but the bill also provides judges means to waive them for low-income Texans.
With the changes, the trauma center fund would see a net gain of $6.8 million over the next two years, according to the Legislative Budget Board estimates.
Does this mean drivers with unpaid traffic tickets can no longer lose their licenses?
In short, no.
The DRP is one of two ways drivers with unpaid tickets can lose their licenses. The other is through the state’s Omni program, which also takes away Texans’ licenses for not appearing in court or paying court fines. About 300,000 drivers are ineligible to renew their licenses because of that system.
In recent years lawmakers have unsuccessfully proposed reforming the Omni program.
On an August morning in West Texas, a caravan rolled across the U.S.-Mexico border, passing through a logjammed checkpoint at the edge of El Paso and into Ciudad Juárez. Packed into a train of vehicles — two vans and seven SUVs — were 21 members of the U.S. House of Representatives, each of them following a new colleague, freshman U.S. Rep. Veronica Escobar of El Paso.
Hailing from places as disparate as Washington state, New Hampshire and Kentucky, the Democratic representatives had convened on the edge of Texas to tour migrant detention centers and, crucially, to witness how immigration crackdowns on the southern border have pushed the strain of overcrowded facilities into neighboring Ciudad Juárez.
Over the last year, these kinds of official legislative visits to the border have become commonplace, and Texas’ border representatives have emerged as the de facto ambassadors of their distinctive homeland. At the eye of a political and humanitarian storm, a small group of Texans — 4 Democrats and one Republican — representing the border region in Washington have become the shepherds of their legislative body on the most charged issue of the day.
“I want to show the impact of the Trump administration’s policies on a community and on migrants,” Escobar told The Texas Tribune the day before she led the largest congressional tour to El Paso yet. “I want people to see that. I want them to speak to migrant families. I want them to speak to their lawyers, their advocates. I want them to see for themselves the consequences of what the president is doing.”
For members of Texas’ small border coalition, the country has arrived at a pivotal point in its history, and the future of the country’s immigration policy may be decided on the ground in their backyards.
“Sometimes my colleagues don’t understand what we mean by, ‘I live there,’” said U.S. Rep. Henry Cuellar, D-Laredo. “I drink the water. I breathe the air there, and that just gives us a very different perspective.”
He laughs — genially, he says — when colleagues pontificate on the state of the border crisis after paying the region only brief, official visits.
“They should respect our opinions a little better than assume that they know better after spending a couple hours in the district,” he said.
“People were going every week”
Each of these Texas members has a unique and personal relationship to their homes. Cuellar grew up the oldest of eight children to migrant farmers in Laredo. Democrat Vicente Gonzalez spent his childhood regularly passing back and forth across the border with his family. (For Gonzalez, the ease and frequency of theses trips have changed in recent years. He lives in McAllen, but he says he has not “rolled across the border” in more than 11 years, a precaution he says he’s adopted due to the rising violence on the Mexican side.)
The lone Republican representing the border, U.S. Rep. Will Hurd, a former undercover CIA agent from Helotes, has unique insight on practices of human trafficking and human smuggling. U.S. Rep. Filemon Vela, a Democrat who was born in raised in Brownsville, knows intimately the idiosyncrasies of the border at its southernmost point. And Escobar, whose family goes back three generations in El Paso, has committed her career in public life to serving not only her fellow El Pasoans, but also their neighbors in Ciudad Juárez.
Over the last year, these border members have watched as a kind of congressional tourism at the border has become political necessity. In July, progressive Democrats visited Clint facilities outside El Paso, where they decried squalid conditions and cruel treatment. When House Republican Minority Leader Mike McCarthy toured the border facilities in El Paso last October, he hailed the “magnitude of the border and the bravery of the officers who patrol it.” A cohort of nearly two dozen GOP congressmen recently toured huge swaths of the Texas border by helicopter. And, last week, Democratic Speaker of the House Nancy Pelosi toured the border facilities near McAllen.
The volume of these visits over the last year has ballooned so much that Gonzalez says he has not been able to keep up.
“I had to quit going to the detention centers,” he said. “People were going every week, and I was like, ‘I can’t go to every one.’”
But Republicans and Democrats often head to the border with different aims.
“When Democrats come down, all they want to see is detention centers. When Republicans come in … they want to see pictures of drugs or guns that have been confiscated,” said Cuellar, who said his role to bring a more balanced view.
Cuellar, the dean of the Texas border delegation, is a veteran ambassador of the region. He says that he has been trying to pull Washington’s attention to the treatment of migrants at the border for years, dating to before Trump’s election. In 2014, as the number of migrant children crossing the U.S. border surged, Cuellar caught heat from members of his own party after he leaked photos to the Houston Chronicle exposing overcrowding and child detention orchestrated under President Barack Obama.
A Blue Dog Democrat who has straddled party lines for most of his career, Cuellar sees it as his responsibility to provide a balanced perspective of the border to members of both parties. His moderate approach, Cuellar argues, has helped him chart out a position of influence on Capitol Hill, and to build influential alliances with heavy-hitting Republicans and Democrats on the Senate side.
“It’s basically because they know I’m from here. I’m not one of these bomb throwers,” said Cuellar, whose conservatism on the border has also made him a progressive target. Politico once called him “the GOP’s Democrat on the border,” and he has more recently found himself in the crosshairs of the liberal group Justice Democrats.
“I go in and call things the way I see it,” he added.
But amid the chaos, confusion and misinformation of the border crisis, Escobar has emerged as the new Texas star. And while she has staked out territory closer to her party’s progressive wing, she has quickly proved herself a keystone of the Democratic caucus, showcasing a talent for uniting her party’s divergent ideological flanks.
Earlier this summer when House Democrats were split over a $4.5 billion border humanitarian aide package, Escobar played a central role in uniting separate factions of her party. Members of the House Progressive Caucus and Congressional Hispanic Caucus threatened to kill the bill over concerns that the Trump administration would twist its intent and put some of the money toward border enforcement rather than migrant aid.
But Escobar helped shoehorn amendments into the legislation that made it palatable for her Democratic colleagues. In a late night speech on the House floor, Escobar pumped her fist and shouted over jeers from Republicans, propelling the bill through behind unified support from Texas Democrats, as well as the backing of Hurd, who bucked his party to vote in concert with his fellow border representatives.
(The victory was only symbolic, however; it died in the Republican-controlled Senate.)
“I gotta hand it to Veronica. She’s been doing a good job. She’s been inviting a lot of members to El Paso,” Cuellar said.“This education is so important.”
This month, another crisis struck Escobar’s district when a 21 year-old gunman drove 600 miles across Texas and fatally shot 22 people in an El Paso Walmart. Not long after the shooting, the gunman’s motivations were laid bare in the discovery of an anti-immigrant, anti-Hispanic manifesto.
“The shooter came into our community because we are a Hispanic community and we have immigrants here,” Escobar told her fellow El Pasoans at a vigil after the shooting. “There are deadly consequences to bigotry, racism and hate.”
It was perhaps the most tragic manifestation of anti-immigrant, anti-Hispanic sentiment to show up in Escobar’s hometown. But Escobar says she has been defending El Paso’s pluralism her entire political life. She recalls that when she returned home from graduate school at New York University in 1993, she was shocked to find a different city than the one she had known growing up, when the border was universally embraced as the community’s greatest asset. At the time, the local Border Patrol sector chief was calling for the construction of a border wall to divide El Paso from Ciudad Juárez.
“This was 1993!” Escobar said, “I was really alarmed because the community felt like it had changed a little bit. Like there had been a shift.”
Escobar responded by joining a local immigrant rights group, her introduction to grassroots political organization.
“That had the most profound effect on my views and the way that I see migration and immigration,” said Escobar.
What followed was a long career in local politics, first as a county commissioner and then as the county judge. But she has watched regretfully how national distrust toward the border has grown. In 2008, despite local opposition backed by Escobar, the federal government did erect a wall in El Paso.
“Since then what has happened, unfortunately, is this continued erosion of the humanity of immigrants,” Escobar said. “We are now at a horrible low point in America where migrants are dehumanized to the point where children are put in cages.”
In the wake of the El Paso shooting, Escobar has again been thrust to the front of the national political conversation. She has passionately defended her home, and forcefully criticized the president, whom she blames for stoking the racist sentiments that motivated the massacre in her hometown.
“The president has made my community and my people the enemy,” she said. “He has told the country that we are people to be feared, people to be hated.”
And ahead of Trump’s visit to El Paso in the aftermath of the shooting, Escobar made clear that, unlike the many House colleagues she has introduced to her hometown, this was one Washington leader she would not abide.
“From my perspective, he is not welcome here,” she said. “He should not come here while we are in mourning.”
But with the shooting, revealing the true border — the reality of its contours, changes, and pains — has become even more urgent.
“I’m a third generation fronteriza — a third generation woman of the border,” she said. “El Paso has been safe for decades. Long before a wall was ever built. Long before the community was militarized in the way that it’s been militarized. We celebrate that.”
Disclosure: Walmart has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
Texans will soon have to wait until their 21st birthday to buy tobacco and nicotine products products — with the exception of young military members.
Sen. Joan Huffman, a Republican from Houston, said she crafted Senate Bill 21, which takes effect Sept. 1, hoping that it would keep cigarettes, electronic cigarettes and tobacco products out of public schools by creating more “social distance” between younger students and students old enough to purchase them. In Texas, nearly 12% of high school students smoke cigarettes, and 19% use e-cigarettes, according to data from the Campaign for Tobacco-Free Kids.
“If we can have [kids] leave high school tobacco and nicotine free, that’s a huge win,” said Jennifer Cofer, director of the End Tobacco Program at the University of Texas MD Anderson Cancer Center.
The original bill didn’t exempt military members, but that changed after some Republican resistance in both the House and Senate. More than 12,500 active-duty troops ages 18 to 20 live in Texas, according to The Dallas Morning News.
When Gov. Greg Abbott signed the bill, Texas became the 16th state to raise the legal age to purchase tobacco. John Schachter, director of state communications at the Campaign for Tobacco-Free Kids, has been following similar laws as they play out in legislatures across the country.
E-cigarette companies Juul and Altria both supported the Texas bill, which also prevents local governments from raising the legal age higher than 21.
Schachter said his group’sonly issues with the Texas bill are that it lacks funding for enforcement to ensure retailers follow the new law, and it still includes fines that punish underage smokers who get caught with tobacco products. Campaign for Tobacco-Free Kids supports the elimination of youth penalties all together — and while that didn’t happen in Texas, the state reduced fines for underage smokers from $250 to $100.
“The youth themselves are already victims of the tobacco industry and its billions of dollars of marketing that lure them and addict them before they’re adults,” Schachter said. “They should not be further penalized when it’s the retailers who are the ones who are in violation of the law in selling to these underage kids.”
Enforcement of tobacco laws — like sending law enforcement to retail locations that sell tobacco products and running sting operations with “minor decoys” — is costly. Texas lawmakers allocated about $9.5 million in this year’s budget to reducing the use of tobacco products across the state — about $3 million more than the last budget — but that money is largely dedicated to prevention and education rather than enforcement.
Cofer, the director of MD Anderson’s program, said the bill is still a step in the right direction.
“We’re going to see a major shift in public health, and ultimately cancer reduction,” Cofer said.
Disclosure: The University of Texas has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
Cybersecurity experts have been deployed by the state to assess the damage from a “coordinated ransomware attack” that struck 23 Texas cities on Friday, state officials said.
Investigators hadn’t determined the origin of the attacks as of Friday evening and were still working to bring cities’ systems back online, according to a news release from the Texas Department of Information Resources. The department believes, however, that the attacks came from a “single threat actor.”
Ransomware attacks involve a type of malware that accesses an organization’s files, locks and encrypts them until a ransom is paid to get them back. The malicious software is often delivered through email attachments or links, and has cost cities across the country millions in damage to computer hardware.
The department declined to name the specific cities that were attacked, but said the majority were smaller local governments.
On Friday, Texas Gov. Greg Abbott ordered a “Level 2 Escalated Response” to the attacks, one step below the Texas Division of Emergency Management’s highest level of alert. The designation means the emergency is beyond the scope of local responders.
The Texas ransomware incidents follow recent attacks in other states including Florida, Maryland and New York.
After losing his last chief election officer over a botched review of the state’s voter rolls, Gov. Greg Abbott on Monday appointed a new secretary of state: Ruth Ruggero Hughs.
Ruggero Hughs is moving from the Texas Workforce Commission, which she has chaired since August 2018. She joins the secretary of state’s office nearly three months after Democratic senators blocked the confirmation of her predecessor, David Whitley, who questioned the voter registration of thousands of naturalized citizens.
Whitley resigned on May 27, lacking enough votes in the Texas Senate to keep the job after he oversaw an effort to scour the voter rolls for supposed noncitizens. The review instead threatened the voting rights of tens of thousands of voters of color, landed the state in federal court and prompted a congressional inquiry into voting rights violations.
The review, through which counties were advised to verify the citizenship status of supposed noncitizens, was eventually scrapped to end the litigation. By then, it was discovered that naturalized citizens have been swept up in review because of faulty data the state used.
By waiting to retire until the last day of the legislative session, Whitley allowed Abbott to pick his replacement without needing a confirmation vote from the Texas Senate, which will be unable to vet his new pick until lawmakers return to the Capitol in January 2021.
The Texas Constitution states that the governor shall “without delay” make another appointment to fill a vacancy in the secretary of state’s office. Abbott’s office did not previously respond to questions about why the post remained vacant much longer than when he replaced previous secretaries of state.
“I am proud to appoint Ruth as Secretary of State and I am confident that her experience at the Texas Workforce Commission will translate into success in this new role,” Abbott said in a statement on Monday. “Under Ruth’s leadership, we will continue to build the Texas brand on the international stage and uphold the integrity of our elections.”
Ruggero Hughs is likely to face a challenge in repairing the secretary of state’s relationship with the hundreds of local officials it depends on to run elections. Some county officials have said they’re still waiting for an explanation from the secretary of state’s office on how they got the review so wrong.
Several county election officials were sued amid the voter rolls debacle for following the directions the secretary of state’s office sent them to review the rolls. Those instructions included the option to send letters demanding that voters prove their citizenship within 30 days to avoid being kicked off the voter rolls, which several counties immediately sent out and several naturalized citizens received. State lawyers placed much of the blame for any errors in the review on local officials, arguing they had behaved “contrary to state law” when they acted on the state’s advisory.
Whitley, meanwhile, was almost immediately rehired by the governor’s office on a six-figure salary.
SAN ANTONIO — Palmira Aguirre has seen her fair share of principals come and go during her 23-year tenure as a teacher at John F. Kennedy High School — including most of a year when there was no permanent principal at all.
The Edgewood Independent School District physics teacher used to feel ashamed telling people where she worked — a school district managed by a board so mired in personal conflict that they couldn’t make crucial hires to lead their high schools or their school system.
“It’s like a revolving door,” said Aguirre, who heads her high school’s parent-teacher association. “There’s no stability at the upper level.”
In addition to leadership scandals over the past several years, Edgewood ISD has struggled with repeated low state ratings, a school board controlled by the state and an exodus of students to charter schools.
But with the help of an energetic new superintendent, district leaders are working to convince parents and students yet again that they’re ushering in a new beginning. As Edgewood starts a new school year Monday, the district has the monetary backing of House Bill 3, a massive school finance law passed in May that aims to help Texas’ poorest school districts, like Edgewood, pay teachers more and improve pre-K programs.
The Edgewood community has heard such promises before. The district was the lead plaintiff in a landmark Texas school finance lawsuit in 1984, accusing the state of failing to equitably fund public schools. Whether HB 3 provides the “transformative” change that the state’s top leaders have promised will depend on whether school districts like Edgewood can use it to tangibly improve how they teach students.
And local leaders have a long way to go to convince demoralized parents and teachers who have stuck with them, in some cases for generations, that things will go better this time.
“I have a lot invested in the district,” Aguirre said.
“We deserve a second look”
In 2016, the high-poverty school district on San Antonio’s west side had reached a low point. The state decided to take over its school board, which was too paralyzed by toxic infighting to hire a permanent superintendent. Teachers were leaving for other schools or careers at worryingly high rates, much higher than the state average.
By the time the state-appointed school board hired Eduardo Hernandez as the new superintendent last year, community members had lost trust in their local public schools. Hernandez, who had previously turned four struggling schools around as a Dallas ISD principal, worked to form relationships with parents in the neighborhood, many of whom had attended district schools as children.
He launched a series of “pláticas,” casual chats often hosted in people’s homes and at their dinner tables, to show how intently he was listening to their concerns. “Our board meetings are about people now. We’re not talking over each other. We’re listening. We’re trying to work as a team,” he said. “We’re going through a re-acculturation of the district.”
Among the newest attempts at reformation: partnering with a prominent city program to offer full-day pre-K, hiring a marketing coordinator to help rebrand Edgewood ISD and opening up the boundaries of the district so kids from other neighborhoods can attend its schools. The superintendent and school board have created a list of five goals, including a focus on student success and financial stewardship, that drive each decision they make.
Like many other urban districts, Edgewood ISD is battling the loss of students to charter schools and other school districts in Bexar County, and fewer students means less funding. Facing increasing competition for students, Hernandez has the tough job of severing the district from its reputation of poverty and struggle.
The new school finance law may help, giving Edgewood ISD about $8 million more this year to provide employees with raises, beef up a team of social workers and hire more bilingual staff. There are signs that Hernandez — whose contract has already been extended for two more years — is moving the needle. Though many schools are still low-performing, parents who look up the district’s state rating will see a C grade, up from a low D in 2018, meaning Edgewood ISD is no longer the lowest-scoring district in San Antonio.
And for the first time this year, Brentwood, a middle school, has been designated an arts and science “school of innovation”; sixth-grade enrollment is projected to be almost double the previous year’s.
“We’re not saying we’ve arrived,” Hernandez said. “What we’re saying is we deserve a second look.”
Working to heal relationships
One evening last week, Marisa Perez-Diaz, who oversees the district’s strategic partnerships, faced a small group of parents, teachers and community members in the technology building’s conference center.
“Over the past several years, there’s been some fractured relationships between Edgewood and the community,” she began, before going on to explain the many ways that parents can be engaged with their schools.
Sitting in the front row during the presentation, Rudy Lopez, president of the local neighborhood association, acknowledged that the district’s progress has been “a little slow.” But he’s thrilled that the school board is actually functioning and that the superintendent is “thinking outside of the box” in bringing in new programs and partnerships. The school board will transition out of state control and back to being fully elected by next spring.
Like the majority of people in the room, Lopez graduated from Kennedy High School; he left the neighborhood for another part of San Antonio but was pulled back after his mom got sick. “I really do like this community. I’m going to do my damnedest to make sure we’re an awesome school district as well,” he said.
Lopez graduated the same year the Texas Supreme Court ruled for Edgewood ISD in a major school finance lawsuit against the state.
“Children who live in poor districts and children who live in rich districts must be afforded a substantially equal opportunity to have access to educational funds,” Justice Oscar Mauzy wrote in the 1989 opinion striking down the state’s school funding system as unconstitutional. But that ruling didn’t lead to a complete fix, nor did six other lawsuits that made it to the state’s Supreme Court over nearly three decades.
The billions lawmakers approved this spring for public education will pour into a school system that’s now majority Hispanic and low income. The law is another state attempt at righting a longstanding failure to educate those students.
Just over three years ago, Kennedy High School had no principal, due to the school board’s dysfunction. Now it has Graciela Martinez, who graduated from Edgewood High School before it was shut down in 1996. She still sees people she went to school with around the neighborhood, including some who she says were smarter than she was but were allowed to fall through the cracks.
“I was fortunate enough for whatever reason to be more of the high flyer, the one that was in all honors courses,” she said. “What I reflected on later was that a lot of my peers didn’t make it.”
Hernandez is trying to shake up the way teachers and principals treat students, with a focus on students’ emotional health instead of punitive discipline. Not everyone has embraced the new approach, Martinez said. They’re still accustomed to leaders who don’t stay and initiatives that don’t stick.
“I think the change is coming. I don’t think it’s fully here yet,” she said.
Editor’s note: If you’d like an email notice whenever we publish Ross Ramsey’s column, click here.
The Texas politicians in the race for president — that’s a way of skipping around Marianne Williamson for a minute — are rebooting.
Beto O’Rourke, who owes his prominence to an unconventional U.S. Senate race last year, is flipping his by-the-book campaign for president into something more noticeable, something more like the race against Ted Cruz that attracted all the attention in the first place.
Julián Castro, one of the Democratic Party’s rising stars for the last several years, is struggling to win attention among the pack of candidates. He’s fighting to clear the obstacles designed to winnow the field of candidates who’ll appear in next month’s debates in Texas, attacking President Donald Trump in a direct political ad: “As we saw in El Paso, Americans were killed because you stoked the fire of racists.”
The candidates are seeking the Democratic nomination to run against Trump, of course. They’re also seeking to pull Texas voters into the fold by talking about national issues that have special resonance in a state with roughly as many Hispanic residents as Anglos, that shares a long border with Mexico and that is essential to any national Republican ticket.
Part of the Democratic candidates’ argument is that putting a Texan on the ticket could put Texas in play in 2020. And that if Texas is in play, the Republican Party’s presidential candidate will be in real trouble.
It’s not all about those two, or about Williamson, who’s from Texas but has spent her adulthood mostly outside of politics and mostly outside of the state. But their presence and last year’s unexpected shift to the left in Texas’ 2018 results highlights Democratic hopes and Republican concerns going into next year’s election.
Trump’s campaign has focused on Texas, spending more on its Facebook ads here than in another state this summer. He spent more in the state than Castro and O’Rourke combined during the first half of the year, on ads with messages like this: “We have an INVASION! So we are BUILDING THE WALL to STOP IT. Dems will sue us. But we want a SAFE COUNTRY! It’s CRITICAL that we STOP THE INVASION.”
If Texas is the cornerstone for a Republican win nationally, Trump wants to keep Republican voters stirred up — not to mention perking up donors in an important money state. His campaign is also aware that Trump didn’t do as well as most of the Republicans running statewide in Texas in 2016, winning his race by 9 percentage points while the Republican average was 14.1 percentage points.
But Castro and O’Rourke are running far behind the leaders seeking the Democratic nomination. O’Rourke has the poll and donor numbers to meet the threshold for the September debates in Houston, with more than 130,000 donors and support from at least 2% of the respondents in at least four qualifying polls.
Castro has the donors, but he’s one poll short of the target, battling for political oxygen like someone stuck under the ice in a frozen lake. He’s running those attention-getting ads, confronting Trump after the racially motivated mass shooting in El Paso for the things the president said before and after that incident. “Innocent people were shot down because they look different from you. Because they look like me. They look like my family. Words have consequences. ¡Ya basta!”
Think of it this way: The El Paso Democrat has a singular reason for remaking his campaign — that being that what he was doing wasn’t working, and had turned the standard stories about him into critiques of what he was doing wrong and pre-death autopsies of how a seemingly promising campaign had vaporized.
And he had policy issues that matched his passions and his geography and that — this is critical — put him in direct opposition to the incumbent he and all those other Democrats hope to unseat. That’s true, as well, for Castro, the Hispanic former mayor of San Antonio and former U.S. secretary of Housing and Urban Development, trying to break out as a first-time candidate for any office outside of Bexar County. He’s pursuing issues central to his heritage, his home and the weaknesses of the incumbent.
Both have method, motive, opportunity — and reboots rooted in Texas.
This story is a collaboration between The Texas Tribune and Texas Monthly.
It was going to be his last shift at the Velvet Lounge, and all Marvin Wilford felt was relief. It was November 11, 2017 — Veterans Day — and as he got dressed for work, Wilford put on his scarlet-colored Marine Corps cap. The Velvet Lounge, a strip joint in North Austin, billed itself on Facebook as “the official afterparty for the city,” but Wilford couldn’t say he had fun: As a doorman, he collected cover charges from 10 p.m. to 6 a.m. and did a lot of standing, sometimes outside. That evening, the temperature was in the 60s. Over his T-shirt and jeans, Wilford pulled on a green hoodie.
It wasn’t that he felt ungrateful. Bald, with an athletic build, the 61-year-old was a year away from collecting Social Security, and his veteran’s pension didn’t quite cover the bills. The club paid $100 a night—not the kind of money he’d made running his own building-and-maintenance company once upon a time, but enough to supplement what his wife, Christine Wilford, brought in as a technician at Voltabox, a company that specialized in lithium-ion batteries.
In fact, Marvin Wilford felt lucky. After serving as a combat Marine in Vietnam, he’d gotten in serious trouble. In 1991, he’d been arrested after assaulting a police officer and was sentenced to prison for 20 years. He’d been released early, but then in 2006 he’d been arrested for assaulting an ex-girlfriend and was sentenced to another 10 years. A diagnosis in 2015 of post-traumatic stress disorder, and medications, had given him a new start, but no one wanted to hire an aging felon. His nephew, who owned the Velvet Lounge, had thrown him a lifeline.
Still, after three months at the gig, Wilford was done. He’d had hernia surgery, and he was walking with a cane. Christine Wilford had been sick, too, wracked by a nagging cough. The club, with its drunken brawls, was too unruly a scene. “This is not working for me,” Marvin Wilford muttered to himself, throwing his cane in the car and heading west on U.S. 290. “There’s gonna be trouble.”
Sure enough, trouble came at around 4 a.m., when a fight broke out by the dance floor and a security guard, a 42-year-old named James Jones, escorted two women outside. Wilford, standing by the door, watched as Jones led the disheveled pair — one with no shoes — toward the parking lot. He and Jones had become friends, bonding over the troublesome revelers they had to deal with. Jones liked to call him Unc, out of respect.
“F— all you security guards!” yelled one of the women. She and her friend stumbled toward a car, vowing to return. Then they sped off.
Twenty minutes later, the same car screeched back into the parking lot. By this time, other patrons were spilling out onto the sidewalk. Though accounts of what happened next vary, multiple witnesses would later say they saw one of the women get out of the car, brandishing a tire iron, and lunge at the gathering crowd. Jones saw the woman strike Wilford. Wilford recalls trying to keep her away from other patrons. Someone hit the woman over the head with an empty vodka bottle. Someone else stomped on the hood of the car.
“She was trying to fight everybody,” Jones later recalled. Quickly, the security guard grabbed his pistol and shoved it into her hip. “Let go of the weapon or I will shoot you,” he warned.
Instead, the woman rushed back into the melee. Jones and Wilford heard gunshots from somewhere in the parking lot. “Unc, go in the club,” yelled Jones. Wilford ran inside as Jones pointed his pistol into the air, firing two warning shots. The crowd dispersed.
By the time the police arrived, just before 6 a.m., the fighting had ceased. Several officers interviewed those on the scene — Wilford, Jones, some additional security guards and the woman who had charged the crowd, whose head appeared to be bleeding. No one was arrested. When Wilford finally got in his car to drive home, it was light outside. “I’m through,” he told Jones before leaving. “Too much madness over here.”
The security guard nodded. “I don’t blame you,” he replied.
Five weeks later, Christine Wilford was going through the mail when she opened an unsolicited form letter from a lawyer — she does not recall who — offering his legal services. Her breath caught when she saw why. There was a warrant for her husband’s arrest, read the letter. The charge: aggravated assault with a deadly weapon, a second-degree felony.
The charge didn’t make sense. As a felon, Marvin Wilford wasn’t allowed to own a gun, and didn’t. Neither he nor his wife had heard from the police. As Wilford skimmed the letter, his head began to throb. With his criminal record, a new conviction could earn him a life sentence. He felt his lungs constrict. He couldn’t breathe. Alarmed, Christine Wilford called the Veterans Crisis Line. Her husband was having an anxiety attack, she blurted into the phone.
Nine days later, on Dec. 29, the couple drove to the Austin Police Department headquarters downtown to turn himself in. Marvin Wilford had spent several days at a Veterans Affairs hospital because of his panic attack. Now, sitting with a detective in an interrogation room, he learned that the officers who interviewed him at the Velvet Lounge had not found him credible. The woman in the fight claimed that she’d been threatened with a gun by a man wearing jeans and a green hoodie; she later picked Wilford out of a photo lineup. According to a police affidavit, Jones told the officers that Wilford kept a gun in his car. (Jones denies this, and when the officers checked the car that night, they found only Wilford’s cane.) There was video evidence from a witness, the detective told Wilford, as he turned on a laptop.
Watching the chaotic cellphone footage, Wilford tried to protest. Yes, there he was, in his green hoodie. But, he pointed out, he was clearly holding a cane, not a gun. And Jones, he added, had recently learned of his warrant and willingly signed a notarized statement to support him, affirming that Jones, not Wilford, had pulled the gun and fired it. Surely the police were interested in that?
The detective wasn’t persuaded. As Wilford was placed in handcuffs, his heart raced. He could not afford a lawyer. His wife’s job barely paid the bills, and their impending property tax payment that year — $4,500 for the home they’d inherited from his mother, in East Austin — loomed large. “I was really angry to be accused of something I didn’t do,” he said later. “Especially with the record I have.”
In 1963, the U.S. Supreme Court ruled in Gideon v. Wainwright that a person accused of a felony is guaranteed counsel even if the person can’t afford a lawyer. How exactly that counsel is provided, however, was left to states to decide, and in Texas, this “how” gets further relegated to the state’s 254 counties — meaning that each county decides how to appoint, and pay, lawyers for the poor. Last fiscal year, there were roughly 474,000 indigent cases in Texas. There are 19 public defender’s offices, which 39 counties rely on in some capacity, but the majority of counties contract with private lawyers, who are generally paid a modest flat fee per case. (This is the most common way that states fulfill their Gideon v. Wainwright obligations.) More than 150 counties also participate in a public defender program for death penalty cases.
Travis County, where Wilford was booked, has a limited public defender program — it serves juveniles and some mentally ill defendants — but relies primarily on a system of managed assigned counsel, in which an independent office assigns cases to a rotating cast of more than 200 private lawyers. After being transferred to the county jail in Del Valle, on the outskirts of Austin, Wilford waited.
He’d taken a few college classes on law after Vietnam, and he knew enough to feel hopeful. Surely his lawyer would look into his story. One evening in early January, he went to bed early — he was sleepy from the jail-issued anxiety meds — only to be shaken awake by a guard at 9 p.m. His lawyer, Ray Espersen, was there to see him.
A 58-year-old with strawberry-blond hair and thin glasses, Espersen was one of Austin’s most prolific lawyers: The previous year, he’d been paid for work on 331 felonies and 275 misdemeanors in Travis County, as well as 46 felonies in neighboring Williamson County — more cases than nearly any other Austin-area attorney. Such was Espersen’s workload, in fact, that in 2015 it had caught the attention of the public, when local TV station KXAN reported on the high number of cases appointed to him (the equivalent workload, by later estimates, of that of at least three and a half lawyers). After the report, the district attorney’s office had opened an investigation into apparent discrepancies between the number of jail visits that Espersen had billed to the county and those recorded at the Travis County Sheriff’s Office.
Wilford did not know this. What he did know was that as he tried to explain — about the video, about the gun, about Jones — Espersen didn’t seem to be listening. The visitation room was tiny, and the two sat practically knee to knee, but “he was looking at the floor, scratching his head, looking everywhere but at me,” Wilford recalled. According to Wilford, Espersen’s laptop remained closed, and he took no notes.
“Well, have your wife send me that video,” Espersen said at last, according to Wilford. (Espersen declined to comment for this story.)
“Hey,” said Wilford sharply, “I was just woken up to come talk to you, and I’m trying to tell you what happened because you asked. Now you’re not listening.”
According to Wilford, Espersen asked him to press the button that opened the room’s door. Unsure of what else to do, Wilford complied.
He would not see his lawyer again for six months.
Indigent defense in the U.S. is in crisis. More than 20 lawsuits filed in the past decade on behalf of poor plaintiffs — in California, Louisiana, Georgia and other states — point to this predicament, which has been acknowledged at the highest levels: In 2013, in a speech marking the 50th anniversary of Gideon v. Wainwright, then-U.S. attorney general Eric Holder bemoaned the number of unjust convictions and sentences borne by the poor. “This is unacceptable,” he declared, “and unworthy of a legal system that stands as an example to all the world.”
The main reason for this crisis is funding. Because the Supreme Court did not, in its 1963 ruling, specify how states should pay for counsel, local policymakers facing other costs — for schools, roads, law enforcement — consistently shortchange indigent defense. This is why public defender’s offices are chronically understaffed. It’s also why court-appointed private lawyers are overloaded: The fees they’re paid are often so low that they are forced to take on a multitude of cases just to make a living. Some overburdened lawyers, in turn, contribute to so-called plea mills, in which, critics say, they encourage defendants to plead guilty because they are either too swamped to investigate claims or incentivized not to. (In Travis County, for instance, court-appointed lawyers are paid $600 for a felony case whether they secure a plea deal or get the charge dismissed.)
The problem of funding is especially acute in Texas. Since 2001, when the state legislature passed the Fair Defense Act — a law that aimed to overhaul and standardize how the state’s poor received counsel — total spending on indigent defense has increased significantly, from some $91 million in 2001 to roughly $273 million in 2018. But Texas ranks among the states that spend the least per capita: Its counties, which shoulder most of the costs, are some of the fastest growing in the country, and what little the Legislature chips in to help — some $30 million last year — does not match demand. This creates a woeful game of numbers on the ground. In 2017, for example, the average court-appointed lawyer in Texas made only $247 per misdemeanor case and $598 per felony.
However, the problem goes beyond money. In Texas, the crisis is exacerbated by a key structural flaw: Indigent defense is largely overseen by judges. Contrary to the American Bar Association’s principles of public defense, which call for defense lawyers to be independent of the judiciary, judges in most Texas counties decide which lawyers get cases, how much they are paid and whether their motions — say, to reduce bail or test DNA — have merit. (Counties do have fee schedules for lawyers, but judges set the schedules and retain discretion over payment.)
Given that judges are elected based, in part, on the efficiency of their courts, this is an inherent conflict of interest. “Whatever the judge wants to do, it’s probably not acquit your client,” said Charlie Gerstein, a lawyer for Civil Rights Corps, a Washington, D.C., nonprofit that has spent the past several years challenging criminal justice abuses around the country. “The judge wants to move the docket. The judge wants to get reelected.” (Civil Rights Corps filed the class-action lawsuit against the bail system of Harris County in 2016.) Lawyers trying to work a case properly — by devoting more time or requesting an investigator — face a quandary: Why make the effort if a judge can retaliate by appointing them to fewer cases or cutting their pay?
In 1999, Houston Democrat and then-state Sen. Rodney Ellis introduced a bill that would, among other things, transfer oversight of indigent defense attorneys from judges to county officials. The Lege approved the measure, but judges, lawyers and prosecutors resisted, writing more than 300 letters to then-Gov. George W. Bush. (“The bill inappropriately takes appointment authority away from judges, who are better able to assess the quality of legal representation,” said Bush in his veto proclamation.) Two years later, Ellis helped muscle through the Fair Defense Act, which provided, for the first time, some funding and oversight by the state, in the form of an agency now known as the Texas Indigent Defense Commission. The TIDC was tasked with administering funds, enforcing standards and responding to violations. But the law was also clear: “Only the judges … or the judges’ designee” was allowed “to appoint counsel for indigent defendants in the county.”
For a long time, the combined effect of this judicial control and lack of funding — heavy caseloads, underserved defendants — was hard to quantify. But a surprisingly trailblazing move by the Legislature in 2013 gave Texas something almost no other state that relies on private attorneys has: comprehensive data. That year, lawmakers ordered every county to start reporting to the TIDC the number of indigent cases, and fees, given to lawyers in every court. They also instructed the TIDC to conduct a study on appropriate caseloads, the first of its kind mandated by a state government.
In 2015, the study’s results were released: In any given year, researchers found, a Texas lawyer could reasonably handle 128 felonies or 226 misdemeanors, or a weighted combination of the two. This set a benchmark against which to understand the growing database, which showed lawyers juggling two, three or even four times that load. Even the director of the TIDC at the time, Jim Bethke, said he hadn’t known “the magnitude of people who were getting run through the system on a super mass conveyor belt.”
Today, the TIDC database is staggering in its reach. With just a few clicks, anyone can look up lawyers by name and see how many indigent cases they took, and in what court and for how much. Finding the highest-earning attorney, or the most overloaded, takes minutes. Consider just a few names: In Harris County, in fiscal 2017, James Barr earned more than $131,000 for work on 433 indigent felony cases, which all came from the court of Judge Jim Wallace. In the Panhandle, Artie Aguilar won a contract in fiscal 2018 to handle all indigent felony cases in Dawson, Gaines, Garza and Lynn counties — a total of 322 cases, for a payment of $75,000. T. D. Hammons, who takes cases around Amarillo, was paid $99,450 in fiscal 2017 for work on 129 felonies and dozens of misdemeanors. He reported that these took up less than 60% of his time, meaning that the rest of his time was devoted to additional clients.
Astonishingly, few judges — or lawyers or lawmakers — seem to be aware of these figures. Those who are will sometimes argue that caseload limits are unrealistic; it’s too arbitrary, they say, to impose a number when situations vary from county to county, or when judges are faced with too many defendants and too few defense lawyers. But as Texas grows and funding continues to lag, these figures offer a place to start—and one thing they show is that judicial oversight of an indigent defendant’s right to a lawyer is becoming untenable.
Just how untenable is left to poor defendants like Marvin Wilford to wrestle with — and for quixotic challengers around the state to try to change on their own, as one young, newly minted attorney named Drew Willey discovered for himself. After graduating from the University of Houston Law Center in 2014, the green-eyed, sandy-haired 27-year-old learned that he couldn’t take indigent cases in Harris County right away — the public defender’s office was too small and competitive, and court appointments required a few years’ experience. So he’d ventured into nearby counties, and soon he found work in the misdemeanor court of Judge Jack Ewing, in Galveston County. There, Willey was assigned to the case of an 18-year-old named Wayne Lucas.
Lucas had been charged with burglary of a vehicle. But when Willey went to see him in jail, Lucas told a different story. He claimed that he’d been biking to a convenience store to buy cigarettes when a screw from his bike flew off. He’d been looking around for the screw, he said, when police officers showed up, saying that a witness had reported to 911 that a man who fit Lucas’ description was jiggling the door of a car in a driveway. The officers said the witness had filmed it with his cellphone.
Willey set into the case’s details. It was strange that Lucas was charged with burglary, rather than attempted burglary, since nothing had been reported stolen. The police report mentioned the video, but after Willey requested it from the district attorney’s office, he never got it. Willey asked Ewing to appoint an investigator, who interviewed the witness. The witness said that all he’d seen was Lucas try to open the car door without success. The witness also denied taking a video.
It was clear there wasn’t much of a case for burglary. Willey persuaded prosecutors to let Lucas plead to criminal mischief, a misdemeanor that he could eventually get expunged from his record. Lucas, who was training to become a manager at a Jersey Mike’s sandwich shop, was thrilled. He’d been in and out of jail enough times as a juvenile. “I just wanted to get my life going,” he said.
Things would not be as straightforward for Willey as for his client. When the lawyer submitted a voucher for $1,320 for his work, Ewing approved only $511, citing “excessive out-of-court hours.” (Although Galveston County pays attorneys by the hour, the court “expects no more than 3.0 hours for appointed counsel to visit with defendant, secure offer from District Attorney’s Office, convey offer to defendant and appear in court for the plea or modification.”) Willey filed two appeals, after which he received the full amount.
But Willey soon found himself in a pattern. When he secured a dismissal in another case and asked for $528, Ewing approved $330. (This time, Willey’s appeal was denied.) When he asked for an investigator again, Ewing denied the request. Meanwhile, Willey also began filing lengthy motions on behalf of clients who had been assigned to Galveston’s jail docket — a system in which defendants who couldn’t afford bond were forced, as he saw it, to plead in a hurried, assembly-line fashion. Then, in May 2016, Willey found out that four cases he’d been working on had been assigned to another lawyer.
Willey tried for several weeks to get a clear explanation from Ewing. Finally, in mid-July, he sought the judge out in his chambers. Worried that Ewing would claim that he’d been an ineffective lawyer, Willey decided to record the conversation so he’d have evidence of their exchange. (It is legal in Texas to record outside the courtroom and without the other party’s consent.) “Whoever I feel I need to appoint, I’m going to appoint,” the judge told Willey. Willey couldn’t argue with that. But why, he asked, remove him in the middle of these cases? Didn’t changing attorneys midstream hurt a defendant’s ability to get the best representation?
Ewing grew impatient. In the year and a half he’d been a judge, he explained, Willey was “the only attorney that has, on almost every case you’ve had in my court, asked for an appointment of an investigator.” (Willey says he asked twice.) Normally, he added, attorneys in his court billed three hours for pleading out a case, for about $198.
“I applaud your wanting to help and get the best deal you can for these people,” the judge continued, but Willey’s bills were excessive. “I can only count and pay for what would be reasonable.” (When reached for comment, Ewing did not dispute the words from Willey’s recording. But, he stressed, context was important. He wasn’t the only one to deny Willey’s full requested payments; so had two other judges in Galveston County, and Willey had not contested those. As for the reassignment of Willey’s jail docket cases, Ewing pointed out that the lawyer he gave them to had, unlike Willey, 28 years of experience. Furthermore, according to Ewing, it is not uncommon for jail docket defendants with other pending cases to be reassigned to lawyers who are already representing them.)
Willey was stunned. He was caught in a system, he realized, that didn’t allow him to really represent his clients. The judge, forced to apportion scant resources, was caught, too. “How could things have grown this bad?” Willey wondered as he left the judge’s chambers. “How could nobody stand up?”
Back in Travis County, Wilford tried to clear his head. Had he offended his lawyer? Did he still have a lawyer? Espersen had given him a business card. Before heading back to his cell, Wilford placed a call to his wife. The meds were making him fuzzy, he told her; he was worried he’d messed up, and he needed her to call Espersen.
Christine Wilford was used to calls from jail. She and Marvin Wilford had married in 2006, right as he began his second stint in prison, and much of their relationship had been defined by bars. A native of France, she wore small, chunky-frame glasses and kept her hair in golden-brown braids; a tattoo on her wrist featured her husband’s nickname, Blocko, in cursive letters. She told him not to worry.
The next morning, she reached Espersen, who briskly confirmed that he was her husband’s lawyer. But over the following few weeks, according to Christine Wilford, Espersen did not pick up or return her calls. Marvin Wilford called Espersen, too, with no success. The veteran tried to distract himself, doing push-ups in his cell and reading the Bible (“the book of Psalms, all the way through,” he said). Christine visited on Wednesdays and Saturdays, and the two became friendly with his cellmate, a former Army Ranger.
At least twice, Wilford was given a court date only to learn that the hearing was delayed. By late March, he had sat in jail for almost 12 weeks with no word, according to him, from his lawyer.
What neither he nor his wife knew is that this was exactly how things were not supposed to go in Travis County. More than three years earlier, on the initiative of a judge named Mike Lynch, the county had revamped the system by which it provided for poor defendants. Lynch, who was well known around the courthouse — he’d worked as a defense lawyer, a prosecutor and for two decades as a judge — had grown troubled by the role of judges in overseeing indigent defense. For one thing, no one had the time to assess defense lawyers’ performances. The judges convened over lunch twice a year to review which attorneys were qualified to take appointments, but the process felt arbitrary and time consuming.
There were also disagreements over pay and allegations of favoritism. Although judges were supposed to appoint attorneys from a rotating “wheel” of names, they often did not; in 2014, for example, courthouse records showed that judges made almost half of their appointments from the bench. (“Several of them were always assigning the same handful of lawyers,” said criminal defense lawyer Betty Blackwell.) This meant that some lawyers got an overabundance of cases, while others felt overlooked. Amber Vazquez, a lawyer known among defendants as the Queen of Acquittals, said she was removed from the wheel in 2012 after multiple disputes with different judges. “I was challenging everything, as a defense attorney is supposed to do,” said Vazquez. “Then the pushback started.”
With a committee to help him, Lynch searched for an alternative. A full public defender’s office was too expensive — some $33 million a year — and would likely meet with resistance for cutting into private attorneys’ income. So instead, Lynch turned to managed assigned counsel, a model pioneered in San Mateo County, California, that had also been adopted in Lubbock County. In that system, the government still contracted with private lawyers, but an independent office — rather than the judges — oversaw appointments and payments. Lawyers had strict caseload limits and easy access to investigators, they were paid not just for taking cases but also for filing motions and working outside the courtroom, and they received frequent performance evaluations.
Intrigued, Lynch drafted a proposal to create a similar model in Travis County, and in early 2015, an independent office known as the Capital Area Private Defender Service opened its doors in Austin. In legal circles across the country, the move — highly significant for an urban county in Texas — was hailed with cautious optimism. Austin Lawyercalled it “the culmination of decades of uneven attempts” to establish fair representation for the poor, while a government study out of Michigan would eventually report that “CAPDS provides a high quality model for reform.”
The office, located for a time on the seventh floor of the Travis County courthouse, was tiny, with no windows, and its first two employees — executive director Ira Davis and his deputy, Bradley Hargis — had experience as court-appointed attorneys, though none in a public defender’s office. Still, things felt hopeful. The next hire, Trudy Strassburger, had recently moved to Austin after working as a managing attorney at the Bronx Defenders in New York. She brought the energy of an outsider, as well as expertise in “holistic” defense: the idea that effective representation of low-income people requires not just legal but also social support. She persuaded the office to hire an immigration lawyer and two social workers.
Almost immediately, bench appointments plummeted. And now that lawyers did not have to persuade a judge to pay for an investigator — they asked CAPDS instead — investigations increased, from fewer than 100 per year to more than 400 per year. (The number of case dismissals also increased.) Any lawyer who wanted to receive appointments had to apply with a review committee; an analyst crunched numbers on case outcomes. Frustrated families could call CAPDS if they were having problems. “All day long, the phone rings,” Davis told me.
Christine Wilford learned about CAPDS from a social worker. Desperate for help, she asked the social worker to call the office. Was Espersen still even her husband’s lawyer? Yes, came the answer. But, according to the Wilfords, they still did not hear from him. A court date of March 29 came and went with another continuance.
Finally, in the early morning of April 12, Christine Wilford received a call from her husband’s cellmate, who said that Marvin Wilford was on his way to court. She drove downtown, arriving at the courthouse well before 9 a.m. She made her way past security, up eight floors, to the courtroom of Judge Karen Sage, where she’d been told she’d see Wilford. Before taking a seat, she found the bailiff.
“Do you know if Mr. Espersen is here?” she asked. She had no idea what he looked like. After a prosecutor pointed him out, in an area reserved for lawyers and court staff, Christine Wilford waited for him to approach her.
Espersen declined repeatedly to be interviewed for this story, though I called and emailed many times over several months and followed him around the courthouse for a week. (When I asked for a chance to explain my reporting and include his perspective, he replied, “I like surprises.”) By all accounts, however, he is well liked by Austin’s judges, who appreciate his knowledge of Spanish and his willingness to take on unpalatable cases, such as aggravated sexual assault.
“He’s got tough skin, and he’s competent,” said Judge Brenda Kennedy, who has appointed him in the past to deal with uncooperative clients. “He’s still able to represent and sometimes get results for them.”
He is known as much for plowing through his daily caseload — 11 court proceedings on average, he told the Austin American-Statesman in 2014 — as for his sense of humor. “So this, here, is like a sexual act,” he once declared in a courtroom about jury selection, according to a blog post by prosecutor Mark Pryor. “We’re feeling each other out, getting to know secrets about one another.”
So it was likely not out of character for Espersen to walk over to Christine Wilford and, after she introduced herself, smile at the sight of her long braids. “Oh!” she recalls him saying. “Are you related to Milli Vanilli?” Before she had a chance to answer, he did a little dance.
“Girl, you know it’s true,” he sang, echoing the chorus by the famously lip-synching ’80s pop duo.
Christine Wilford, who had never heard of Milli Vanilli, was so taken aback that she no longer remembers the rest of their exchange, except for the fact that her husband’s court date was again pushed back. Espersen did not communicate with Marvin Wilford, who sat in a holding cell at the courthouse before being taken back to jail.
When Wilford returned to court a month later, his wife found Espersen again. She wanted to get the lawyer materials that could be helpful to the case, she told him: a list of witnesses who could corroborate Wilford’s account, his medical and military records, the statement from Jones. That night, after the case got another continuance, she texted the list of witnesses to Espersen’s phone, then headed to the Dollar Tree to buy an envelope. Carefully, she wrote the address of Espersen’s office on it, stuffed copies of Wilford’s documents inside and mailed it.
On June 22, Wilford had another court date. According to him and his wife, the couple had still not heard from Espersen, and to their knowledge, no one had contacted the witnesses or Jones. (In fact, Espersen soon informed Christine Wilford that he never received the documents). But that day, Espersen requested that the case be put on the trial docket — a potentially favorable move, in that it might force the prosecutor to look harder at the case and perhaps even dismiss it.
In the courtroom, standing with Espersen before Sage, Marvin Wilford felt confused — and weary. He eyed his lawyer. It was the first time they were seeing each other since that disconcerting night in jail, yet Espersen barely spoke to him. The judge asked for his response to the charges.
“Not guilty, Your Honor,” said Wilford.
As he left Galveston, turning his white SUV onto Interstate 45, Drew Willey fumed. In the weeks after Ewing first removed him from his cases, he’d been so upset that he’d filed a complaint with the Texas State Commission on Judicial Conduct, listing the canons of the Texas Code of Judicial Conduct that he thought Ewing was violating: “Most importantly, Canon 3, C. (4) by failing to exercise the power of appointment impartially and on the basis of merit.” Now, as he saw it, the judge had spelled out in his own words what Willey had suspected all along: There were poor defendants who were not getting a fair shake. Willey called his wife in Houston. “You’re not going to believe what this guy just said,” he told her, his voice shaking with anger.
He knew what some of his lawyer colleagues would say — that he was too idealistic. The state commission was notoriously opaque. And the Texas Indigent Defense Commission, which Willey also filed complaints with — over Galveston’s jail docket — couldn’t do much either. Technically, the TIDC could make recommendations, but judges were not compelled to follow those; the agency could also withhold state funding, but it had done that only once, in 2015, after it found that two attorneys in Hidalgo County received more than a third of all 1,900 juvenile indigent cases in one court. (Two years later, one of the attorneys was still receiving the second-most juvenile cases of any lawyer in the county.)
“It takes a lot of sacrifice, having that fight,” said Brandon Ball, a lawyer in the Harris County public defender’s office who has worked with Willey. “They beat you down. They beat you down. They beat you down.”
But the fight is what had attracted Willey in the first place. He’d grown up as a middle-class conservative in Arlington, the youngest of four, with a love of math. Gifted and competitive, he was president of the student body at his high school. After majoring in business at the University of Texas at Austin and pursuing a master’s in tax accounting, he’d enrolled in law school to become a tax attorney.
A summer internship at the University of Houston’s death penalty clinic changed that plan. Willey was assigned to the case of Marvin Wilson, a 54-year-old mentally disabled black man from Beaumont who had been sentenced to death in 1994 for the murder of a police informant. Wilson claimed he was innocent, but the clinic’s lawyers hoped to spare him death by focusing on his mental fitness. Willey was tasked with retyping the transcripts from Wilson’s trial, and as he worked through them, he grew troubled by what he felt were grave missteps by Wilson’s attorney. The state claimed, for example, that both the victim and the murderer were black. But a strand of Caucasian hair was found in the victim’s hand, a fact that had not been explored.
Willey had leaned generally in favor of the death penalty, but the consequences of shoddy defense work made him do an about-face. He took it upon himself to investigate Wilson’s case, even interviewing witnesses in Beaumont — an impulse that exasperated his bosses, who needed his focus on other matters. When Willey visited Wilson on death row, he was struck by Wilson’s positive outlook. “You’re not giving up,” Willey remembers thinking.
But by Aug. 7, 2012 — the day Wilson was to be executed — all of the appeals on his behalf had been denied. That evening, Willey drove to a Bible study he regularly attended. He’d become more connected to his Christian faith in college, and now he felt despondent. At sundown, as the study leader cracked open a Bible, all Willey could think about was how Wilson was strapped to a gurney, drawing his last breaths. He was staring at the floor, lost in thought, when the leader read the night’s passage, Proverbs 31:8-9. “Speak up for those who cannot speak for themselves,” it went. “Defend the rights of the poor and needy.”
The words hit Willey like a lightning bolt. His calling wasn’t tax law, he realized. It was to defend the poor. “My jaw was on the floor,” he said. “That message was my new guide in life.”
Willey signed up for a mentoring program through the public defender’s office and, after graduating from law school, worked a few months for a criminal defense attorney in Houston before getting on the appointments list in Galveston and Fort Bend counties. His ultimate hope was to work in Harris County, which he figured could use the help: Its lawyers were notoriously overburdened, and its judges had come under fire in the media for cronyism. In one famous example, the Houston Chronicle had reported in 2009 that attorney Jerome Godinich missed deadlines in death penalty cases and carried a high caseload. Six years later, Godinich still handled almost 500 felonies a year, including several capital murder cases. Most of his appointments came from Judge Jim Wallace; Godinich was one of Wallace’s top campaign contributors. (Godinich and Wallace did not respond to requests for comment.)
But Willey needed experience, so he focused on his work outside Houston. On his weekly drives, as he pulled away from his townhouse in the Montrose neighborhood, he thought often of Wilson, whose photo he kept in his home office. There had to be another way of doing this work, he mused.
In the fall of 2015 — as he was looking into the Wayne Lucas case — the answer came to him. A few defendants in Harris County had heard that he represented poor clients and called him from county jail; they wanted to know if he could take their cases because they weren’t hearing from their court-appointed lawyers. Willey turned them down. Without being appointed, he had to work pro bono, and he couldn’t afford to do so. Then, driving one afternoon, he had an idea: What if he could raise funds for the cost of defending cases?
On January 17, 2016 — just before Martin Luther King Day, a deliberate choice — Willey gathered friends and family at a restaurant and announced his plan: He was starting a nonprofit called Restoring Justice. To figure out an appropriate workload and how much money to raise, he would use the TIDC’s study on caseload limits. (For a first-degree-felony case, for instance, he figured he’d raise $5,000; this was far less than an attorney would charge a paying client but much more than most court-appointed lawyers receive.)
That spring, as his conflict with Ewing began to heat up, Willey threw himself into the nonprofit, filling out paperwork and enlisting board members. He also took on one of its first clients, a soft-spoken 27-year-old named Maurice Johnson, who was in jail for sexual assault of a minor. Johnson claimed that the victim, his girlfriend, had lied about her age, but he’d pleaded guilty after being told by the investigator that she and her father would testify against him.
Johnson’s court-appointed lawyer, Ruth Yvonne Burton, had not visited him in jail; they’d spoken only on days when he appeared in court. When Willey got the investigator’s notes, he realized that the investigator had never interviewed the victim or her father, that the victim had admitted to the police that she’d lied to Johnson about her age, and that the father had agreed to accept a lesser charge against Johnson — a fact that Johnson had not been told. At the sentencing hearing, the prosecutor asked for a sentence of 15 years. Willey persuaded the judge to give Johnson three.
Burton was paid for work on 361 felonies in fiscal 2016. When I reached her in a brief phone conversation, she defended her caseload, pointing out that several investigators worked in her office. “I don’t encourage anyone to plead,” she said. “I will tell them what the facts are.” When it came to Johnson, she said, not knowing the girl’s age was not a defense. “That doesn’t make you not guilty,” she said.
As Willey saw it, though, having all the facts still made a difference. “It matters in how you negotiate for someone, in how you set punishment,” he said. “It matters a lot.”
Willey had known that Burton had a high caseload, but it wasn’t until months later that he realized just how high. He was at his desk one day, poring over the TIDC website, when he discovered that the agency not only issued caseload guidelines — as he knew — but also collected detailed data for all lawyers doing indigent defense.
Clicking around the database, Willey was shocked. He’d figured only a handful of lawyers didn’t have time for their clients, but there were scores of them — and not just in Harris County. Court-appointed lawyers all over Texas had workloads two or three times the recommended limit. “It was kind of a hallelujah moment,” recalled Willey. “I suddenly had this objective checkpoint on adequacy of counsel.” Now, it dawned on him, he didn’t have to rely on referrals or calls from jail. Thanks to the database, he could figure out who most needed help — and go after those clients himself.
He was still mulling this over when, in October 2017, the State Commission on Judicial Conduct voted to dismiss his complaint about Ewing. “In its discretion, the Commission determined that the judge’s conduct in this particular instance, while not necessarily appropriate, did not rise to the level of sanctionable misconduct,” ruled the agency. “The Commission remains confident that the conduct will not occur in the future.”
Willey shook off his disappointment. He would just move on, he decided, and double down on his nonprofit. So when, that same month, he received a phone call from Charlie Gerstein of Civil Rights Corps, Ewing was far from Willey’s mind.
Gerstein was calling for advice on a client, and as the two chatted, the conversation turned to indigent defense. Most lawsuits on behalf of the poor, said Gerstein, went after high caseloads and inadequate resources, but lately he’d been thinking about judges. If a lawyer faced resistance from a judge, then it didn’t matter if he had all the resources in the world. What if, Gerstein asked, there were a way to address judges’ retaliation against lawyers who tried to adequately defend their low-income clients?
“Wait a second,” Willey replied. “That happened to me!”
His and Gerstein’s minds began to race. Willey had been trying to bypass the system through his nonprofit, but maybe, it occurred to him, there was something bigger he could try.
Five months later, with Gerstein as his lawyer, Willey filed a lawsuit against Ewing.
On June 24, 2018, Marvin Wilford sat on his bunk in the Travis County jail and pulled out a notebook. Every other week, Christine Wilford sent him money for the commissary, and he’d been intentional with his purchases: $2.50 for the notebook, 50 cents for a pen, 42 cents for a stamp and envelope. He began to write a letter to Sage, the judge in his case. He was firing his lawyer, and over three pages, he did his best to explain why: Espersen barely communicated with him; it appeared he’d misplaced documents from Christine Wilford. “He didn’t use none of the state money … to get an investigator to question the witness on my behalf, not even the Security Guard who fired the gun,” he wrote.
The thought that he might end up in prison for many years overwhelmed him. “When I was in combat, and my life was on the line, I fought for my life,” Wilford recalled. “And I realized, ‘I gotta fight for my life now, too.’ I was trying to write the letter so she would understand.”
For two weeks, neither he nor Christine Wilford got a response. She called the Capital Area Private Defender Service phone number repeatedly — more than 20 times, she thinks — and left message after message. Finally, in early July, she heard from director Ira Davis, who told her to attend her husband’s next court date, on July 13. More waiting, she thought. If CAPDS was supposed to be a recourse, it didn’t strike her as particularly effective.
The truth was, the staff at CAPDS was overwhelmed, too. The sheer volume of work — supervising more than 200 lawyers, handling their payments, coordinating investigators and social workers — was near impossible for such a small team. Not to mention the number of complaints they received. There was barely time to look into each defendant’s grievance, let alone a lawyer’s performance. Many complaint forms ended up half filled out, with no record of a follow-up.
Strassburger, the New York hire, was particularly frustrated. For all the promise of the managed assigned counsel model, she felt that CAPDS’ supposedly independent oversight was continually compromised. The use of investigators, while better, was not improving fast enough; by 2018, lawyers were requesting them in less than 5% of felony cases and less than 1% of misdemeanor cases. And while judges no longer assigned cases — this was left to court administrative staff — a lawyer could still show up for ad hoc appointments, circumventing the setup.
When CAPDS proposed a client’s bill of rights, declaring, among other things, a defendant’s right to see his lawyer, the Austin Bar Association refused to sign off on it. “Some lawyers were afraid that clients would use it to try and file grievances against them,” explained lawyer Betty Blackwell, who sits on the board for CAPDS.
Because judges had found it difficult to suspend poorly performing lawyers, CAPDS had formed a review committee of criminal defense lawyers to make the tough calls instead. But, as it turned out, lawyers found it just as difficult to sanction their peers. Committee members were loath to kick colleagues off the wheel, thereby depriving them of income; they also had trouble taking defendant complaints at face value. “People in the criminal justice system are unhappy,” explained Blackwell. “People are going to complain about their lawyers.”
Most exasperating to Strassburger, however, was that despite the county’s effort to wrest power from the judges, the judges were, in her view, still ultimately in control. The review committee actively solicited judges for input on lawyers. (Amber Vazquez, for example, who was booted off the wheel before CAPDS was created, still could not get high-level felony appointments in the new system; her application was denied due to unspecified “judicial complaints.”) The court staff that facilitated appointments also reported to the judges. Meanwhile, the judges refused to agree to stricter caseload limits. (The limit in Travis County is 100 misdemeanor cases and 90 felonies at any given time; Alex Bunin, the chief defender in Harris County, told me that lawyers in his office rarely go above 30 felonies at once.) Judges also, together with county commissioners, refused to increase lawyers’ fees, arguing that there wasn’t enough funding.
As a result, many lawyers still juggled big caseloads, racking up complaints. At first, Strassburger tried to keep detailed memos. In July 2015, for instance, she noted that several defendants had complained about Tom Weber, who that year was paid for 305 felonies and 104 misdemeanors. “All reported bizarre and unprofessional behavior,” she wrote. When she’d brought this to Weber’s attention, Strassburger also wrote, he had dismissed the credibility of his clients, calling them “monsters” and “scumbags” and “rapists.” (Weber did not respond to requests for comment.)
Three weeks after that memo, the KXAN report about Espersen’s workload aired. According to the investigation, over two years, Espersen had billed Travis County for 40 hours of jail visits that were unaccounted for. In one instance, Espersen claimed to have met with an inmate named Rodney Thomas five times, for a total of 13 hours. But Thomas told KXAN that the lawyer visited him once — a week before his trial — a claim corroborated by jail records. Espersen had also billed for a visit with Robert Rivera, who told KXAN, “I did not so much as receive one visit from Mr. Espersen while incarcerated at Travis County Correctional Complex in Del Valle.”
In response to the KXAN report, the district attorney’s office opened a criminal investigation into Espersen and a few other lawyers — including Weber — for the alleged overbilling. When the CAPDS review committee convened early the following year to decide which lawyers could take appointments, Strassburger, Davis and Hargis recommended in a joint memo that Weber not represent people with mental illness. He’d allegedly told one client to “go ahead and kill himself,” they wrote. They urged the committee to “seriously consider whether he should be defending indigent people at all.”
They also warned about attorney Phil Campbell, who was paid on 134 felonies and 300 misdemeanors in fiscal 2015. “Staff observations of Mr. Campbell and complaints from other attorneys indicated an attorney who was not truly advocating on behalf of his clients but merely conveying an offer and advising them to take it,” they wrote. (Campbell declined to comment for this story.) Later, they brought up Espersen. Some of his clients had learned of the DA’s investigation and written to CAPDS to complain. “I deserve a fair trial,” wrote one. “Please help.”
The review committee agreed to remove Campbell and Weber from cases involving people with mental illness. But that was it. Weber continued to receive appointments on high-level felonies until he was hired by the DA’s office. Campbell’s caseload, meanwhile, increased; he went on to take cases in nearby counties. (In 2014, he was paid for 106 felonies and 252 misdemeanors; by 2018, his misdemeanor caseload had grown to 428.) As for Espersen, the committee decided to delay action until the DA’s office concluded its investigation, which is still pending four years later. (The DA’s office denied a public information request for records related to the investigation.)
As long as judges had this much say in the matter, Strassburger realized, little would improve for Travis County’s poor defendants. Her despair only grew when, in the fall of 2017, several judges approached CAPDS with a question. Was it fair, they asked, to look at a lawyer’s number of cases rather than clients? Given that some clients had more than one case against them at a time, why not instead suspend lawyers who had too many clients?
Strassburger was dumbfounded. This would have the effect of raising the caseload limit, and caseloads were terrible enough. In yet another memo, she outlined her concerns. “We are encouraging attorneys to quickly resolve cases and, in effect, punishing those attorneys who handle complicated cases,” she explained. In bold, underlined font, she added, “The attorney with the highest caseload (748) has not been suspended for exceeding caseload limits in the last 12 months.” A few months later, disheartened, Strassburger quit.
On July 13, Marvin and Christine Wilford appeared for his court date. They were joined by Espersen, who, per Marvin Wilford’s request, had agreed to remove himself from the case. Standing before Judge Clifford Brown — who was sitting in while Sage was at trial — Wilford listened attentively as the judge approved Espersen’s motion. Wilford sighed with relief. “Finally,” he thought.
“I’m a taller white dude with black cowboy boots,” said Willey. It was November 2018, and he was describing himself on the phone to Hattie Shannon, one of the most overloaded court-appointed lawyers in Harris County; the previous year, she’d been paid for work on more than 430 felonies. Willey was hoping to meet her at the courthouse.
In the eight months since filing his lawsuit, Willey had been busy: He and his wife had welcomed their first baby, a boy, and he was raising funds in earnest for Restoring Justice. He’d moved his office to a tiny room on the first floor of a house in the Heights neighborhood and was taking on more clients — by the end of the year, he’d have 19 active cases. It wasn’t a huge number, but as he liked to point out, the nonprofit had saved defendants a combined 49 years of incarceration.
He now mined the TIDC database regularly, cross-referencing the data with active cases listed on the website of the Harris County District Clerk. This is how he’d found his newest target: a 30-year-old woman arrested for PCP possession who had been sitting in jail for six months. Her lawyer was Shannon.
The woman’s bond had been set at $10,000, which struck Willey as exorbitant, since it was a nonviolent charge. Shannon had filed a few motions, but none were to lower the bond, so Willey visited the woman in jail and proposed taking her case. When Shannon did not object, the woman was thrilled. (Shannon did not respond to requests for comment.)
On the phone, Willey arranged to meet Shannon the next day in the courtroom of Judge George Powell to finalize the handover. Immediately afterward, he called the woman’s mother, who confirmed that the family could afford to pay a reduced bond. She had called Shannon several times, the mother said, but had reached her only on the night before her daughter’s court date. (Jail records show Shannon visited the woman once.) Her daughter, she continued, had made some bad choices, but she’d grown up in church and wanted to be a paralegal. Now Thanksgiving was around the corner. “I want her home for the holidays,” replied Willey.
He hung up and smiled. His lawsuit against Ewing had made national headlines, including in TheNew York Times, and he’d been receiving messages and donations to his nonprofit from all over the country. Lawyers around Texas had written to share their own run-ins with judges. A teacher in Florida had mailed him some framed quotes from the Gideon v. Wainwright case. They sat in his office now, near the photo of Marvin Wilson. “Every case I take over, I see the person has potential,” said Willey.
On its face, the lawsuit was a long shot. Judges, like prosecutors, enjoy broad immunity for their actions, on the principle that they should be free to make judgments without undue fear of retribution. In Texas, after two lawyers filed suits against judges — one in Travis County in 2006, another in Tarrant County in 2007 — for removing them from cases and appointment lists, both cases were dismissed. In Ohio, when a public defender sued a judge in 2012 for removing him from dozens of felony cases, the 6th U.S. Circuit Court of Appeals sided with the judge.
But the lawyers in those cases sued on the basis of lost income. Willey’s case was deliberately different. He was suing not for damages but for the right to advocate for his clients. Willey’s lawsuit argued that government contractors — which court-appointed attorneys are — have the right not to be fired from their jobs for speaking up. In addition, Willey was asking for declaratory relief, a statement from the courts acknowledging that if Ewing retaliated against Willey again, he would be in violation of the law. The novelty of the approach gave the case a chance of success — and offered a possible precedent for how to force change in Texas.
The next morning, a chilly 35 degrees, Willey got in his SUV and headed to the courthouse. In a small, trapezoid-shaped room that was serving as a makeshift courtroom for Powell after Hurricane Harvey, Willey waited for Shannon. When she didn’t show, he approached the judge on his own to make his case for lowering the woman’s bond: Her parents wanted her back, and she’d served six months. The prosecutor, a young-looking man in a checkered blazer, objected, reading out the woman’s previous criminal charges — controlled substance possession, a couple of DWIs, possession of marijuana.
Willey pressed again, irritating the judge, who raised his voice. “At this point, you’re not even attached to the case,” said Powell. “Let’s handle that first and then get back together on it, all right?”
Outside, Willey rolled his eyes. “That’s the culture,” he fumed. “He basically said to get the hell out of his face.” He debated going back, then thought better of it. He didn’t want to make the judge angrier. He’d wait.
His bet paid off. A week later, Powell agreed to a personal bond. Willey was elated — his client would be home for Thanksgiving.
When I called Powell to ask about the case, he explained he’d grown testy in the courtroom because it wasn’t clear to him that Willey had filed the paperwork to take over. “The fact that he was discussing the case with me was an ethical issue,” he explained, “so I just shut things down.”
Powell said he hadn’t given much thought to why the woman had sat in jail on a $10,000 bond for several months with one lawyer and gotten out on a personal bond after a few days with another. “Ms. Shannon is a good attorney, and she works very hard,” said Powell. But he hadn’t known her caseload — or that 99 of the 430 felonies she’d been paid for the previous year were in his court. “I wasn’t aware,” he told me after I recited the numbers. “That’s interesting. Tell me the numbers again, please?”
“Are we ready on Wilford?” asked Sage. It was Nov. 30, 2018, and through a gray door, Wilford entered the Travis County courtroom, a sweater peeking out from under his jail uniform. His new lawyer, a 42-year-old with a scruffy beard named Andy Casey, patted him on the back. After replying softly to a few questions from the judge, Wilford was taken to jail one last time, for processing. With that, he was free.
After almost a year of waiting, it was an anticlimactic ending. Not even his wife was there to celebrate. She’d caught the flu and was stuck at home. To Wilford, the lack of fanfare was perfectly emblematic of how simple his case could have been. Casey had called Christine Wilford as soon as he was appointed to the case. It had taken a few months, but he’d examined the evidence, witness list and video, then negotiated a deal with the prosecutor: If Marvin Wilford pleaded guilty to a misdemeanor assault for being involved in the scuffle, the felony charges would be dropped. The maximum sentence was a year, which Wilford had already served. “The one thing you do see him carrying in the video is a cane,” Casey told me.
A month later, I went to visit Wilford at home in East Austin. For Christmas, Christine Wilford had bought him a ring to wear next to his wedding band, a symbol of all they’d been through together. Marvin Wilford had applied for a small business loan to start an online hat shop; his mother had loved hats, and he planned to name the venture after her: Marie Antoinette and Sons Hat Shop. He could not speak about Espersen without getting agitated. “How old does a black man have to be,” he said, “before y’all stop trying to destroy his life?”
When I met with Sage soon afterward and asked about Espersen’s caseload, she noted that the numbers can be misleading. Sitting in her office, she pulled up a spreadsheet from her own courtroom. “As of Jan. 2, I have the most cases [of any judge],” she declared — specifically, 1,200. “That’s not for the whole year. Just right now.” But one defendant on her list, for instance, was facing a whopping 20 charges. Handling 20 cases for one person, Sage stressed, is very different from handling the cases of 20 people.
It’s true that caseload numbers come with caveats. Casey, for example, is overloaded, yet he still managed to give Wilford the necessary attention. (It should be said that Casey’s caseload is not nearly as high as Espersen’s.) But it’s also true that Sage doesn’t deal with 1,200 cases by herself; she has a team of prosecutors who have their own staff, including investigators and assistants — resources that most defense attorneys do not have. In addition, it’s rare for a single person to face 20 charges; on average, one defendant in Travis County has 1.6 pending cases.
I pointed out to Sage that the caseload for a lawyer like Espersen reflects this average: In 2015, for example, his clients in Travis County numbered 384 and his cases 424 — not a huge disparity. Could she really make the case, I asked, that a lawyer with almost 400 new clients a year could serve all of them well, or even adequately? Sage spun back and forth in her chair. “That’s a lot of cases,” she said. “Lawyers have a personal responsibility. They know what they can handle. Do we really need to tell a lawyer, ‘Don’t do that’?”
That question would swirl around Austin for most of the spring. In a series of heated exchanges, criminal justice reform advocacy groups, supported by Democratic county leaders, argued publicly that the managed assigned counsel model had not solved either excessive caseloads or judicial interference — and that the only solution was to expand the county’s public defender’s office after all. But resistance from defense lawyers and judges was fierce, and it took until late May for Travis County to submit a proposal to the TIDC.
The proposal asks the state for about $24 million over five years and commits the public defender’s office, if expanded, to strict caseload limits based on TIDC recommendations. (It also asks for more resources for CAPDS.) The TIDC, which received a funding boost from this year’s Legislature of about $14 million a year, must now decide whether to fund the requested state grant; a decision is expected at the end of August.
Of course, for longtime observers of Texas’ criminal justice system, it’s precisely this piecemeal approach — a few extra public defenders here, some added funding there — that dooms poor defendants to inadequate representation. “The only way to do this correctly is to have a statewide system with standards that’s properly funded,” said Jeff Blackburn, an Amarillo-based lawyer who founded the Innocence Project of Texas. Class-action lawsuits are forcing this issue elsewhere: In New York, for example, after a historic settlement with the New York Civil Liberties Union, the state will spend $250 million a year on indigent services, a burden once shouldered almost entirely by its counties.
It’s likely that no such class-action suit will take place in Texas anytime soon — the idea of a statewide public defender system does not have broad constituency in a place this large and diverse — so until then, change at the state level will require action by the Legislature. And as a practical matter, that won’t happen without approval from judges, as former state Sen. Rodney Ellis found out 20 years ago. “Judges who will remain nameless still try and tell me that the judge picking the lawyer is better,” said Ellis, who is now a commissioner for Harris County, “because they pick people who are capable. How do you say that with a straight face?”
Even the TIDC is an example of this complicated dynamic. Though by law it has the power to set maximum caseloads for lawyers across the state, it has never done so. Only the agency’s board can approve such a move, and the board is led by Sharon Keller, the presiding judge of the Texas Court of Criminal Appeals. “We really do think that people in the local jurisdiction know best,” she explained to me. When I mentioned that caseload data shows some lawyers doing what the TIDC’s own study says is the work of at least five lawyers, she replied, “I don’t even know if that’s wrong. The guidelines are a point of reference, and they’re not absolute.”
In the meantime, it may be that lawsuits at the individual level, like Willey’s, are the surest way to force incremental change. In April, the Houston lawyer saw his efforts resolve quietly when his suit against Ewing ended with a settlement and both parties agreed “not to cause or ask others to violate the Texas Fair Defense Act.” It wasn’t exactly a bold finish — “Nothing in this settlement should be considered as an admission by Judge Ewing of any wrongdoing,” read the files — but Willey saw it as a limited victory.
“There’s a federal judgment now, dictating that he must agree to follow the law,” he said.
Meanwhile, Harris County had seen its own changes: After a sweep of Democratic judges came into office in November, the public defender’s office budget nearly doubled, to $21 million a year. Its juvenile division — whose attorneys had been receiving an average of 141 cases per year, versus the 300-plus cases per year given to some private attorneys — had started receiving enough cases to hire three more lawyers. The county was also exploring managed assigned counsel for its court appointments, including — in a radical move — a proposal that lawyers adhere to TIDC caseload recommendations. (When the print edition of Texas Monthly with this story went to press, Harris County’s felony judges had not agreed to such a proposal.) “Travis County did it backward,” explained chief public defender Bunin, who was feeling hopeful about these changes. “You need a public defender and then a managed assigned counsel.”
When I last saw Willey, in June, his fundraising for Restoring Justice was going so well that he’d hired an executive director; he’d also secured a partnership with the Houston Texans. But the change in Harris County judges had also spelled change for him. Suddenly, he was getting court appointments in Houston and being asked to host fundraisers for friends who were now in the judiciary. That month, he’d been given work in the misdemeanor courts of judges Genesis Draper and Franklin Bynum, both former public defenders.
Willey was glad for the appointments, of course, but he was also developing a nagging sense of discomfort. He showed me a message he’d received from a supporter after the news of his settlement with Ewing.
“I hope you didn’t settle because you are going to become like them and forget about justice for all and the underserved community,” texted the supporter. “I hope you don’t become a good old boy.”
For a minute, Willey stared at his phone. He would save the message, he said. So that he wouldn’t forget.
A lawyer responds: Bill Ray explains his workload in Tarrant County
Despite efforts to reach a number of the state’s most overloaded lawyers, few agreed to speak for this story. One lawyer who did, however, was Bill Ray, who in fiscal 2018 was paid for work on more than 200 felonies, 80 misdemeanors and five capital murder cases in and around Tarrant County, home to Fort Worth.
Ray, like many lawyers and judges in Texas, insisted that caseload numbers can be misleading. A few of his five capital murder cases have been going on for several years, he explained, and the work he gets paid for on these in a given year isn’t always intensive. (For instance, he might file one motion for a new DNA test.) Not all of the felony cases are work intensive either — many, in fact, are probation revocations, in which he represents people accused of violating the terms of their probation. “I usually have one appearance for those,” he said. “I have a half-hour visit to the jail. That’s it.”
Still, said Ray, “I probably have more cases than many other lawyers could handle.” There is no caseload limit in Tarrant County. “I don’t ask for these appointments,” he continued. “I tell the judges I’ll do them. I didn’t ask for the capital murder case I got last night. I’m gonna do it.”
Tarrant County has no public defender’s office whose outcomes might provide a baseline for measuring the work of a court-appointed attorney. But in 2009, one probation revocation case involving Ray did raise some eyebrows. A woman named Sandra Wilson alleged that, as her lawyer, Ray had ignored clear indications that she had severe mental illness and had tried to kill herself. Her 15-year prison sentence could have been lowered, she claimed, if Ray had brought up her mental illness.
A federal judge agreed, writing that she might not have gone to prison at all if Ray had brought up her limitations. The lawyer’s “conduct fell below an objective standard of reasonableness, and was outside even the widest range of reasonable professional assistance,” wrote the judge. Ray declined to comment on this case, noting that the judge’s opinion should have been sealed. (It is easy to find online.) Tarrant County judges have continued giving him appointments.
When Ray and I spoke in December 2018, he told me that he did not have any paying clients; the bulk of his workload was reflected in the TIDC database. But he did have side gigs. In fact, as we were talking on the phone, he was on his way to see a witness in a case in which the district attorney had recused himself. The judge had appointed Ray — not to defend but to prosecute.
Want a public defender? Take it up with the judge
In many Texas counties, interest in creating more public defender’s offices is growing. To be effective, however, these public defenders will need both resources and strict caseload limits — as in Harris County, where lawyers recently decided to take on no more than 128 felonies a year, down from the current limit of 150. In Dallas County, by contrast, public defenders can be just as overloaded — often more so — than their court-appointed counterparts. (In fiscal 2018, more than two dozen public defenders in Dallas each took on more than 300 felony cases.)
Crucially, public defense models will also require buy-in from judges, which has not always been easy to come by. In Harris County, for instance, juvenile public defenders received fewer and fewer appointments over several years, so that in 2017 they each had an average load of 140 juvenile cases, which is below the office’s imposed limit of 200, while a handful of private attorneys — some of whom happened to be generous contributors to judges’ campaign coffers — got more than 300. In interviews, two of the county’s juvenile judges insisted that they knew nothing of these numbers and that their court coordinators were in charge of appointments. But since last fall, when these judges lost their reelection bids, juvenile public defenders have been reporting an increase in their caseloads.
In the Texas Panhandle, where there’s long been a dearth of qualified lawyers, a clinic at Texas Tech University Law School began representing clients from across the region in 2012 who had been charged with misdemeanors. For the first two years, it did so at no charge to counties that participated; after that, counties had to generally pay only $100 per case. The clinic’s law students took four misdemeanor cases to trial, winning two outright — both of them DWI cases — and a third, on theft charges, on appeal. In the fourth case, the client was convicted of marijuana possession but was sentenced to time he’d already served — a few days — and charged a small fine. He’d been facing a sentence of six months.
The clinic seemed like a success, but it stopped receiving appointments from Knox County in 2013 after students won one of the DWI trials. The clinic also no longer gets appointments in Garza County, where the theft case was won on appeal.
The judge who presides over misdemeanors in Garza County, Lee Norman, said he stopped using the clinic because of “scheduling issues.” (Patrick Metze, a law professor at Texas Tech, said that the clinic is staffed year-round.) Stan Wojcik, the judge who presides over misdemeanor cases in Knox County, said the decision to stop using Texas Tech was made before he was elected, but he’s upheld it in part due to distance: The clinic, in Lubbock, is more than 100 miles away. “We do like to use our local attorneys,” he said. “It is easier on clients to have someone local at their disposal. It’s better for them, actually.”
Both judges insisted that anyone who needs a lawyer in their counties gets one. Still, Wojcik acknowledged that more lawyers are needed in the Panhandle. “We do have a limited number of attorneys to pick from,” he said. “Someday, we might need to rethink our use of Texas Tech.”
The executive director of the clinic, Donnie Yandell, hopes that this will be the case. “Commissioners are always concerned about how money is being spent, and the taxpayer is always concerned about how money is being spent. We’re charging 100 bucks, and we can’t get appointments. As a taxpayer, I’d be livid.”
Neena Satija is a former reporter for The Texas Tribune and currently a reporter for The Washington Post. This reporting was supported by the International Women’s Media Foundation’s Howard G. Buffett Fund for Women Journalists.
Disclosure: The University of Texas, the University of Houston and Texas Tech University have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.