AUSTIN, Texas — A class action lawsuit on behalf of people jailed without lawyers in Travis County was filed in federal court Wednesday night to affirm the constitutional right to counsel at first appearance.
The American Civil Liberties Union of Texas, the ACLU Criminal Law Reform Project, and Weil, Gotshal & Manges LLP filed the lawsuit on behalf of the plaintiff in the United States District Court for the Western District of Texas.
Travis County requires people who are arrested to attend their first criminal court appearance without providing the constitutional right to a lawyer for people who cannot afford one. At first appearances, which are generally conducted via video from the basement of the jail in downtown Austin, magistrate judges commonly question people about facts related to their alleged crime — including asking about relationships with witnesses and details about alleged incidents that could jeopardize their cases.
The lack of legal representation at first appearances forces individuals to advocate for themselves in precarious and unfamiliar situations. People who cannot afford to pay cash upfront to secure their release are unfairly jailed for days as they wait for an attorney to finally be appointed to them to secure the freedom they may have been entitled to all along. The ACLU Criminal Law Reform Project and the ACLU of Texas have repeatedly urged Travis County officials to institute counsel at first appearance for everyone arrested in the county.
The plaintiff, who is in his late 30s and experiences homelessness, was arrested on Tuesday, April 9, 2024, and booked into Travis County Jail. He requested a court-appointed lawyer, but at the time of filing our lawsuit, one had not been appointed and he remains locked up under a pretrial detention order issued against him, without counsel, at his first appearance. Our client seeks to represent a plaintiff class of all similarly situated detained people at Travis County Jail.
“Right now in downtown Austin, people are being forced to participate in criminal court hearings from jail without an attorney there to protect their rights,” said Savannah Kumar (she/they), staff attorney at the ACLU of Texas. “This situation is urgent. Every day that passes without counsel in place at these initial criminal hearings is a day that people are being denied their constitutional right to counsel all while being separated from their loved ones, home, and livelihood.”
The lawsuit alleges that in recent months, magistrate judges asked people (not the plaintiff), questions that are nearly certain to elicit statements to jeopardize their case like “Do you have some good reason for packing heat downtown?” before ordering them to remain in jail.
“Communities in Texas and across the country have proven that counsel at first appearance helps fix what is broken in the criminal legal system,” said Trisha Trigilio (she/her), senior staff attorney at the ACLU Criminal Law Reform Project. “Travis County is embarrassing itself with these backward practices when a proven solution is within reach.”
In March, 37 organizations including the ACLU of Texas sent a letter to Travis County officials calling for immediate action to be taken to provide the constitutional right of counsel at first appearance. The letter, joined by a slate of local advocates, documented blatant unfairness advocates had observed in hearings throughout early 2024.
Following the letter, County Officials have publicly announced two eight-hour test shifts, “a sluggish response that follows two years of excuses and delays,” says Trigilio, since the county rejected grant money for counsel at first appearance in April 2022. Less than 1% of people arrested in Travis County a year would be helped by the announced program.
“Weil is proud to be partnering with the ACLU on this important matter to improve justice and fairness in the criminal process,” said Jessica Falk (she/her), partner at Weil, Gotshal & Manges LLP.
The ACLU has previously secured court orders requiring counsel at first appearance in Galveston County, Texas, and Alamance County, North Carolina; and has asserted similar arguments in litigation pending in Oklahoma, Oregon, and Utah.
Access the complaint here: https://www.aclutx.org/sites/default/files/travis_county_complaint_files_commsredacted.pdf
