BURNET — A clash of ideologies seems to be simmering down as local trial judges and the Burnet County Commissioners Court reach a compromise on how to create and maintain a proposed public defender’s office.
A four-year state grant will fund the office as a county department, allowing the commissioners to say they’re saving taxpayers’ money while making sure those who can’t afford an attorney are still guaranteed a legal defense.
The first year’s funding from the state to set up and run the office is $425,000.
The catch? The commissioners and other non-lawyers want a say-so in the oversight of the department. In fact, County Administrative Judge Donna Klaeger — who is not a lawyer despite her title — is the chairwoman of a newly created Oversight Board, or OSB.
Not everyone greeted the news warmly at first, especially the local trial judges. They feared the OSB for the future Burnet County Public Defenders Office would erode their traditional control over the functions of a public defender.
Now both sides have met and agreements are being forged, they say. But there’s still a lot of work ahead.
“The process appeared to be headed toward pulling that responsibility away from the trial court judges and vesting it more in the Commissioners Court, delegated to the Oversight Board,” 33rd state District Judge Guilford L. “Gil” Jones said this week. “Judge Klaeger and I have met extensively and on that point have reached an agreement in principle that makes the local process and protocol clear that the final say in the appointment of the public defender will be (with) a majority of the trial court judges.”
Jones is meeting with fellow trial judges Burnet County Court-at-Law Judge Randy Savage and 424th state District Judge Dan Mills to finalize the details.
Jones said when the OSB was first created two weeks ago, he had the same fears about the operation of a new public defender’s office that Savage expressed during a Commissioners Court meeting Aug. 9.
“That concern was rooted in the constitutionally mandated requirement, and the requirement of Texas law, that judges bear the responsibility of seeing that indigent persons get effective assistance of counsel,” Jones said.
Since that time, Jones said, the judges have communicated with each other and Klaeger to iron out more details.
“The potential for the conflict of interest is thusly greatly reduced if not eliminated completely and the judges can carry out that assigned task,” he said.
Initial skirmish
Although the judges and the commissioners seem to be moving ahead on the public defender’s office, things didn’t start out that way. The commissioners emphasized early on they approve the county budget and will control the funding stream for the Burnet County Public Defenders Office.
During that Aug. 9 meeting, an unprecedented showdown took place between the trial judges, represented by Savage, and the commissioners, who voted to create the OSB panel with Klaeger as the chairwoman.
Therein lies the rub, Savage said at the time — Klaeger is
not a trial judge, not an attorney and not a member of the State Bar Association.
She is instead the executive head of the commissioners, something like the mayor or governor of the county.
“Historically, it’s always been the judge who decides who represents the indigent defendant. All the judges are saying is that we want to have the predominant voice,” Savage added.
“I am a judge, sir,” Klaeger told him.
“But you really need somebody who has practiced law,” Savage said.
However, Klaeger does hear misdemeanor cases to relieve congestion in Savage’s court, which does not require a law degree.
Savage asked the commissioners to postpone their vote on the makeup of the OSB until the trial judges could sit down with them, rather than trying to decide the issue over e-mails because the judges remained busy with active dockets.
That didn’t happen.
The commissioners instead went ahead and created the OSB. In addition to Klaeger as the chairwoman, other members include the three trial judges, another commissioner, a member of the state Bar not associated with the District Attorney’s Office or the County Attorney’s Office and the county indigent defense coordinator.
Commissioner Russell Graeter said a diversified oversight committee helps avoid “tunnel vision.”
“(You) have a little mix of ideas in there,” he added.
Klaeger said the committee will do more than just grade the chief public defender; they will also look at the upkeep and maintenance of the office, its fiscal health and ensure it gets set up.
“That’s why we want to do checks and balances,” she said. “That’s the committee’s job.”
But what it all really boils down to, Klaeger added, is keeping a lid on costs.
“We save money,” Klaeger said.
The commissioners that week passed a budget that does not call for a property-tax increase. But others worry about what will happen when the state grant runs out and the public defender’s office still has to be funded.
It will be administered on a four-year scale with disbursements decreasing each year, so the county has to make up the difference, critics said.
Klaeger said savings made possible by the grant will allow the county to build up funding for when the state disbursement runs out. The county can also reapply for the grant — if it still exists.
Jones said it remains to be seen just how much money the new office will actually save the county.
“The grant obviously saves money in the early years,” he said. “Whether the resulting cost when the declining grant runs out is less expensive than under the (previous) contract system is difficult to predict. It depends on the assumptions made when doing the calculations.”
How it works
Nearly 40 years ago, Burnet County had an “assigned counsel system” to ensure those who couldn’t pay for legal representation still got a court-appointed lawyer. Over time, some lawyers got more appointments than others. So, like many rural counties, Burnet County went to a rotation system.
But as the county’s population kept growing, the country contracted with a lawyer to fill the role of a public defender. The most recent public defender, Richard Davis, has announced he is running on the Republican ticket for the 33rd state District Court.
Davis was assigned indigent cases, but when there was a conflict, new cases had to be given to other lawyers.
As a cost-saving measure, the commissioners accepted the state grant of $425,000 to set up a new public defender office that could be headed by a non-profit group.
“It has the potential to be a very good program,” Klaeger said.
In order to receive the grant, the state Office of Court Administration Task Force on Indigent Defense stipulates the commissioners must appoint both attorneys and non-attorneys to an oversight committee, according to Roxanne Nelson, the county indigent defense coordinator.
There will be an annual review each year of the public defender’s office, which will include a chief public defender at a salary of $90,000; an assistant chief public defender; a public defender; one investigator and a staff member.
For the first year, the county still supplies 20 percent of the cost.
For the next three years, the state’s funding decreases by 60 percent, then 40 percent, then 20 percent and finally the grant runs out.
The county has the option to apply again, but if the grant no longer exists or the county doesn’t have enough money to fund it, critics note that a tax increase could be in the cards someday.
Klaeger said by creating the office, taxpayers save $500,000-$600,000.
At one point the other counties in the 424th and 33rd judicial districts — Blanco, Llano and San Saba — had an option to participate. Blanco opted out from the start, and Llano and San Saba later signaled they weren’t interested.
During the recent commissioner’s meeting, Klaeger indicated the Burnet County Public Defenders Office was needed for many reasons, including a less-than-stellar review from the Task Force on Burnet County’s current system and the contracting system.
“We have an issue with (the current) process,” Klaeger said during the meeting. “It is not being taken care of now.”
According to officials, the county has budgeted more than $420,000 this year for the current public defender system of a court-appointed attorney. County officials claim it has already gone over budget by about $23,000.
Klaeger said in two to three years, the county without the state grant could spend as much as $500,000 on its own.
What the future holds
Jones, who will step down from the bench at the end of his term in 2012, indicated he has set aside his initial reservations about oversight for the new office. He and the other judges want to continue working with the county.
“My main concern is that quality representation result while controlling the costs,” said Jones, who was first elected to the 33rd in 1996. “In the county’s favor is the fact that we (Judge Klaeger, Judge Savage and myself) have a good relationship with the indigent task force (the grantor) and we believe that we will be able to tweak the grant each year as the needs are better defined, and that revisions to the grant amount may be available to help control the costs.”
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