It’s an idea that has been around for a while, but never gained traction. This time, supporters including Travis County’s two highest-ranking prosecutors — District Attorney Margaret Moore and County Attorney David Escamilla — believe the stars are aligned to merge their offices.
The proposal, which would eliminate the county attorney post and create a super district attorney’s office — where all criminal and civil matters are handled —is intriguing with solid reforms. But it’s short on details regarding how it would generate significant savings without downsizing positions, or improve the civil side of the court system, which now rests largely with the county attorney’s office.
Those specifics need to be filled in and publicly vetted before officials ask the Legislature to permanently eliminate one elective office, while greatly expanding the duties and powers of another. Both have their origins in the 1876 Texas Constitution.
The public should have some assurance that a super district attorney’s office is the right fit for Travis County. The new post would be called the Travis County Criminal District Attorney.
Perhaps those details will come when Moore and Escamilla present their proposal to the Travis County Commissioners Court on Sept. 25.
We hope so. In the meantime, no one should oversell the proposal as a means to finance a public defender’s office, a benefit that supporters frequently, and inaccurately, cite.
Neither Moore nor Escamilla can guarantee that any savings, estimated at $1 million to $1.4 million largely from attrition, would go to creating a public defender’s office to represent poor defendants who cannot afford to hire attorneys, though both support that option. Only the Travis County Commissioners Court has that authority, and it has not weighed in on the issue.
Keep in mind that the savings in question are a drop in the bucket of the estimated $20 million needed to finance a public defender’s office.
Moore and Escamilla also should consider the political ramifications of eliminating the office. The county attorney’s office, which has been held for 15 years by Escamilla, who is Latino, is viewed by many as an opening for other minority lawyers looking to make their way in county elective politics, including as a stepping stone for the district attorney’s office.
One key benefit of the merger is the establishment of a filing system in which prosecutors take the lead in charging decisions. Under that system, a police officer would call a prosecutor before booking a suspect. Prosecutors – and not police, who currently decide booking charges – would make the determination about what charges are appropriate to file and are legally sustainable by the evidence. Ideally, that would happen before a suspect is transported to jail.
That permits prosecutors to prescreen charges to determine if they meet criteria for a misdemeanor or felony, avoiding overcharging and dismissals in cases in which the evidence does not fit the charge.
Moore told us that a direct-file system relies on having prosecutors available around the clock, seven days a week. In other words, it’s expensive. Merging the offices would create the manpower needed to accomplish that without additional costs. There is a community interest in ensuring defendants are charged with the right crimes. And it’s bound to cut down on court caseloads.
Another big benefit is how the merger would reduce redundancies and delays that are common when prosecutors from the two offices disagree on whether a case should be filed as a misdemeanor or 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 told the Statesman. It’s the result of a bifurcated system that requires police to file felony charges against a defendant with the DA’s office and misdemeanor charges with the county attorney’s office.
As of mid-August, 3,932 defendants had both a misdemeanor and felony case pending at one time, Escamilla told us. That translates into 8,046 misdemeanor cases that also had pending felonies.
“If we had one office, maybe we would choose to do the felony and not do the misdemeanor,” Escamilla said.
With false starts and stops over decades, the proposal gained traction this year when Moore and Escamilla endorsed it. Escamilla is retiring in 2020, the same year as the new DA post is on the ballot. Moore plans to run for the post. The restructured office would open in 2021, giving the Legislature —which meets next year — time to pass a bill. State Sen. Kirk Watson, D-Austin, has agreed to sponsor the legislation.
Some local lawyers, including former Travis County Judge Bill Aleshire, say the initiative goes too far by incorporating the county attorney’s civil division in the merger. There is concern, too, about how a fully merged office would handle civil cases involving elected officials.
As county attorney, Escamilla pursued a civil lawsuit in 2013 to remove then-Travis County DA Rosemary Lehmberg from office following her arrest for DWI. Critics say a merger would weaken such accountability. If Travis County eliminated its county attorney office, Escamilla said such prosecutions would be handed over to a county attorney in a nearby county. Those details should be filled in.
Austin lawyer Martha Dickie, a former State Bar president, called the merger a bad idea, noting the philosophical difference between the prosecution of violent felonies that necessitate prison sentences and the prosecution of misdemeanors that can be resolved with diversion programs, as Escamilla has implemented for possession of small amounts of marijuana.
Clearly, there is a lot to digest in the proposal. We look forward to more details and public hearings. Stay tuned.