The Council of Judges: Part II

conc_judges_2Who is the Council of Judges? It is a simple question. However, in El Paso nothing is as simple as it should be. The County’s website states that the Council of Judges “provides support for seventeen District Courts, seven County Courts of Law, two Probate Courts, a Jail Magistrate, an Associate Child Protective Services Court, three Associate Family Courts, one Protective Order Court, two Juvenile Court Referees, and four County Criminal Courts at Law”. It seems pretty simple enough, an administrative department for the county’s court system.

Then how is it that they have oversight over the county’s auditor?

The About Us section of their website offers us a possible reason. According to the website the Council of Judges “oversees the operation of all the Courts to include their budget”. Yet, county commissioners oversee more than the judicial courts budget and yet the Council of Judges oversees the county’s auditor. Why?

Unfortunately the website offers very little information about them including who oversees the council and more importantly under what authority they operate under. My initial thought was let’s look at how other counties in Texas operate their Council of Judges.

Strangely I could not find any other Council of Judges anywhere else in Texas. Curiosity piqued I wanted to learn more about how the Council of Judges came to be.

I found out something very interesting. The Council of Judges came to be as a direct result of a federal civil rights lawsuit under a section 1983 civil rights mechanism that was also used in the Courts of Inquiry.

Today, El Paso is the only county mandated to have public defender’s office in the state.

According to a Council of State Governments Justice Center 2013 report titled; “Improving Indigent Defense: Evaluation of the Harris County Public Defender” criminal defense, and the protections offered under the sixth amendment were a “scattered and ad hoc” solution per county in Texas. This was a result of the decentralization of power by Texas.

The report states that in 2002 the Fair Defense Act established a committee addressing shortcoming in indigent defense in Texas. Prior to that, El Paso was the only county with an established public defender’s office focused on providing indigent defense. Most other counties provided indigent defense by appointing lawyers to represent indigent clients.

In El Paso, this came about as result of the Jose Maldonado v. Kitty Schild (EP-86-CA-402) lawsuit in 1986. In the lawsuit Maldonado alleged that those charged with crimes in El Paso languished in jail for longer than the ninety days prescribed by the Texas Constitution without the district attorney indicting or rejecting their case. Under the Texas Constitution if an indictment wasn’t filed within ninety-days those arrested had to be released. Unable to hire an attorney many languished in jail without indictments for longer than what the constitution allowed.

On December 2, 1987 the county settled the Maldonado matter by agreeing to a Memorandum of Understanding. Under the Memorandum the county’s judges and the county agreed to certain stipulations on handling those charged with crimes in the county. This consent decree avoided a Class Action lawsuit and forced the county to enter into a plan establishing the public defender’s office also known as The El Paso Plan. Basically the plan established a public defender’s office funded by the city initially and now under government funding tasked with defending fifty percent of indigent felonies in the county.

As a result, the Texas Government Code now includes Section 54 that was added on August 28, 1989. Titled “Subchapter J. El Paso Criminal Law Magistrate Court” the code establishes “The El Paso Criminal Magistrate Court with jurisdiction over offenses allegedly committed in El Paso County except for that portion of the county in the corporate limits of Vinton, Texas”. Subsection 54.736 states that “The El Paso Council of Judges is composed of the judges of the district courts of El Paso County and the judges of the county courts of law of El Paso County”. It then establishes that “The council of judges shall ensure that the criminal law magistrate court gives preference to magistrate duties, as those duties apply to the county jail inmate population, until the commissioners court provides funds for more than one judge to sit on the criminal magistrate court.

Subsections 54.737 through 54.745 state that the Council of Judges, “by majority vote”, will manage and assign judges subject to the other laws governing criminal proceedings. The rest of the sections govern appointment of judges, movement of judges from bench to bench and general courtroom management by the Council of Judges.

What I could not find under the Code was where and when the authority of the Council of Judges to oversee the county’s auditor came to be. What my research showed me was the Council of Judges came to be as a result of a civil rights action brought forth by defendants alleging ineffective protections under the sixth amendment. In essence it established the public defender’s office in El Paso County with the Council of Judges being responsible for it.

It is the only mandated public defender’s office in the state.

How the Council of Judges assumed some control over the county’s budget is unclear at this point. On November 27, 2013, KVIA’s Maria Garcia quoted Yahara Lisa Gutierrez, of the 65th District Court, as saying that “state law has said the Auditor is under the Council of Judges” I could find no reference to back that assertion up. Without reading the entire State of Texas statues it is very difficult for me to determine if that assertion is valid or not. What is clear is that Veronica Escobar and Vince Perez have acknowledged that the Council of Judges has oversight over the county auditor. How, is yet to be answered.

Regardless, a power struggle is ongoing for control of the county budget. Tomorrow I’ll share an example of a previous attempt by the Council of Judges to take control of the county’s budget.

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