Travis wants to combine prosecution offices — will Republicans approve?


Highlights

Pending state approval, the DA and CA offices would combine and handle all criminal and civil matters.

The merger might have come earlier, but DA Rosemary Lehmberg’s 2013 DWI rankled Republican lawmakers.

A lawyer ripped the merger, citing fundamental differences between felony and misdemeanor prosecution.

After tossing around the idea for decades, Travis County officials are prepared to seek Legislative approval to combine the prosecutorial offices that handle misdemeanor and felony crimes and all civil cases.

The merger would save area taxpayers roughly $1.4 million a year, according to local criminal justice leaders. It would also bring Travis County in line with 49 other Texas counties that have a unified prosecuting agency. Politics have scuttled past efforts to merge the two offices in Travis.

Since the formation of the state constitution in 1876, separate offices have prosecuted crime in Travis County. The County Attorney handles misdemeanor prosecutions, civil litigation involving the county and its employees, and provides legal advice to the Commissioners Court and other county elected officials. The District Attorney’s office tries felonies and has separate divisions that handle juvenile crimes, asset forfeitures and Child Protective Services cases.

If the consolidation is cleared in next year’s Legislative session, both offices would dissolve into a unified Criminal District Attorney’s office that would handle everything from drunken-driving cases to capital murders, and represent the county in civil court.

The restructured agency would launch in January 2021, coinciding with the retirement of County Attorney David Escamilla, who announced he will step down after 17 years as the county’s top misdemeanor prosecutor.

“This is a unique moment in Travis County history,” District Attorney Margaret Moore told the American-Statesman. “We think it’s important we do some things right now that have not been possible before and probably won’t be possible for quite a while.”

READ: How hard do Travis judges work? County is collecting data

Moore, whose four-year term expires as the merger would take effect, said she would run for the new elected position, adding that a combined agency could emerge as “an exemplary prosecutorial office.”

Moore said her goal would be to unite the departments without job cuts, but that some positions likely would be lost through attrition. That would include County Attorney, a job that pays Escamilla about $174,000 per year. Between the offices, there are about 423 full-time equivalent positions.

Escamilla says he would encourage the county Commissioners Court to direct overall savings from the merger to criminal justice reform, including the county’s plan to improve representation for indigent defendants by increasing pay for defense lawyers.

The County Attorney’s 2018 budget is $21.3 million. The District Attorney office’s budget is $23.7 million.

The proposed consolidation is backed by state Sen. Kirk Watson (D-Austin), who has agreed to sponsor or author the bill at the upcoming Legislative session. Watson said Travis County would benefit from a collaborative prosecution unit that has long been present in Bexar, Tarrant and Dallas counties.

“I feel comfortable this is a good time to do this, particularly when you coordinate it with the election cycle,” Watson said.

Harris County employs a similar model in which the District Attorney handles all criminal cases and the County Attorney oversees all civil matters.

Merger could decrease delays

Austin attorney Martha Dickie said the merger is a bad idea, pointing to a philosophical difference between the prosecution of violent felonies that necessitate prison sentences and the prosecution of misdemeanors that can be resolved with diversion programs.

“That’s a completely different focus than what a district attorney’s office does,” said Dickie, a former State Bar president whose practice focuses on civil litigation. She said the County Attorney’s role in civil matters involving elected officials “would not mesh well” in an agency that also prosecutes the most serious crimes.

Multiple defense lawyers declined to comment about the county’s proposal, saying they feared that speaking out against the merger might complicate plea negotiations with the DA’s office.

The Capital Area Private Defender Service — the agency that matches indigent criminal defendants with defense lawyers — will not take a position, said deputy director Bradley Hargis.

The Austin Criminal Defense Lawyers Association plans to discuss the measure at its next board meeting on June 12, president Sidney Williams said.

Escamilla and Moore both say they are in favor of the merger and believe it will cut down on delays that are common when prosecutors from the two offices disagree on whether a case should be filed as a misdemeanor or as a felony.

In 2016, it took an average of 213 days from the time of arrest to reduce a felony to a misdemeanor and 194 days to increase a misdemeanor to a felony, Escamilla said. There were 619 cases that were reclassified.

Moore said combining the offices also would offer a more assured career path for people who work in the agency, who would be able to begin by prosecuting misdemeanor cases and move up to felony prosecutions without having to change offices. Moore said that can help the county with recruiting minority prosecutors.

DA’s DWI stopped earlier merger

Previous efforts to merge the agencies have been undone by political snags.

Escamilla said that in 2013, then-DA Rosemary Lehmberg wanted to consolidate the offices before her arrest for drunken driving rankled Republican lawmakers. Gov. Rick Perry pushed for Lehmberg to resign and threatened to withhold $7.5 million in state funds from Travis County’s Public Integrity Unit.

The threat resulted in a criminal indictment against Perry that was later dismissed by the Court of Criminal Appeals.

In 1972, retired state District Judge Jon Wisser was an assistant county attorney when he suggested that the office unite with the district attorney’s office. It wasn’t going to happen, Wisser recalled being told.

The District Attorney at the time, Robert Smith, had irritated County Attorney Ned Granger by launching an investigation into some of the county commissioners. The commissioners were represented by Granger’s friend and powerful defense lawyer Roy Minton.

“A lot of political hostility,” Wisser said. “The last thing the county commissioners wanted to do is to make the district attorney’s office stronger.”

Wisser said former DA Ronnie Earle (1977 to 2009) would have had a difficult time getting bipartisan support due to his office’s criminal investigations into Republican lawmakers Tom DeLay (House majority leader) Kay Bailey Hutchison (Senator) and Mike Martin (state representative).

County optimistic despite past roadblocks

The longstanding animosity between Texas Republicans and Austin Democrats has some court watchers questioning whether the merger will clear political red tape.

The county drew the ire of Gov. Greg Abbott and much of the Republican-majority Legislature last year after Travis County Sheriff Sally Hernandez in January 2017 introduced a policy limiting the jail’s cooperation with federal immigration authorities.

A month later, Abbott cut $1.5 million in grant funding from his office to the county, and in May 2017, the legislature passed Senate Bill 4, a so-called sanctuary cities ban.

Several of Texas’ largest cities and counties and some advocacy groups sued over the law’s legality. A federal appeals court in March ruled that most of the law could take effect; an appeal is pending.

Robert Kepple, executive director of the Texas District & County Attorneys Association, said he is unaware of any instances in which lawmakers have blocked a county from merging its prosecution agencies. He added that it will likely get done because Moore and Escamilla have solid reputations among state lawmakers.

“This is something that’s been a long time coming, so it makes sense that it’s happening,” Kepple said.

Despite the SB4 clash, Deece Eckstein, the county’s intergovernmental relations officer, said he’s optimistic that the county could still muster enough support to pass a bill merging the two offices.

“There may be people who don’t like Travis County in the Legislature, but the majority is very reasonable and we’re able to do business with them,” he said, noting that the county was successful this last session in receiving approval from the Legislature for two new district courts.



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