New Travis County DA plans to move more defendants out of jail, into diversion programs

Newly elected Travis County District Attorney José Garza is moving forward with the bail reform and diversion plans he promised on the campaign trail, which Garza said will make it easier for people charged with some nonviolent crimes to stay out of jail and get into intervention programs.  

"If we can invest our time and resources addressing the root causes that lead people to engage in criminal activity in the first place, then that is how we have the best opportunity to make our community most safe," Garza said.

The plans were among several that he outlined in a public letter to the community Friday. He also mentioned among his priorities in the letter: 

• His ongoing work to compile a "do not call to testify" list of officers whose conduct has been called into question.

• Announcing the hiring of a new victims counselor.

• Plans to involve prosecutors and defense in the magistration process. 

Garza's plan to get more pretrial defendants out of jail is two-pronged: Increase the number of people included in diversion courts — which require defendants to complete rehab and other programs before the charge is wiped from their record — and stop seeking bail for many nonviolent offenders who have been charged with but not convicted of crimes.

Travis County has had progressive diversion and bail programs in place for years, both through formal pretrial programs and the informal precedents set by Travis County judges who tend to release people on their personal recognizance for minor misdemeanor charges. However, Garza ran on a platform arguing that the Travis County DA's office was not doing enough for restorative justice in its community when it came to felony offenses, and that is one of his objectives under his administration. 

First, Garza said his office is going to begin to ask judges to grant all defendants no bail or "affordable bail" if they aren't flight risks, haven't threatened violence and don't have a history of escalating violence. Affordable bail will look different to different people, Garza said. 

"We would be asking for bail that the person could afford — and that could be a dollar. ... For the overwhelming majority of the people in our jails in Travis County — upwards of 75% — even a $5,000 bail is unaffordable," Garza said. 

The bail amount is ultimately up to the judge, but Garza said he wants his prosecutors to begin lobbying for low or no bails for nonviolent offenders who aren't flight risks. Prosecutors will also continue to consider bail conditions such as GPS monitors and protective orders.

Cliff Brown, a Travis County criminal district court judge, said local judges will probably continue to set bail amounts as they always have.

"We make these evaluations every single day, with the input of the state and the input of defense," Brown said. "We have to make the best determination that we can, considering that input and the safety of the community, in these bail decisions. We'll continue to do that." 

He added: "The state will have, perhaps in some cases, a position consistent with what the defense's position may be. But that doesn't change, from a practical sense, my decision-making or other judges' decision-making."

Ken Casaday, president of Austin's police union, said he is wary of Garza's bail plans, but he is willing to see how they are implemented. Casaday said that he, like Houston's police union, disagreed with the bail reform practices that were implemented in Harris County.

Casaday said he has directed that police officers who disagree with the bails set for certain cases should begin documenting them in a spreadsheet, as Houston's police union did. He is frustrated, for example, when people are charged with burglary and then immediately commit burglary again.

"In the end, it's the judges that decide what someone's bond is," Casaday said. "If they want to go along with (Garza's) program, and it works, then it works. ... There's no doubt that he has a big heart and he wants to help people. I'm just not sure. We'll have to see how far it goes. I think it's too early to judge it." 

Diversion programs

Garza wants prosecutors to start identifying every eligible defendant on the docket and directing them into pretrial diversion courts. 

"Previously, assistant district attorneys made their own evaluation as to whether a case was a good fit, or more likely what would happen is defense counsel would request that their client be considered for pretrial diversion," Garza said.

He said prosecutors will be submitting all eligible cases to the pretrial diversion division in the DA's office.

Garza wants to make more people eligible for these programs and courts. Criminal history would often automatically disqualify people, but that will no longer be the case, he said. 

Two more attorneys have been brought in to work with the pretrial diversion division to take on the additional work. 

Rickey Jones, who has headed that division since 2017, said he believes it's time for the Travis County DA's office to begin considering more people for diversion programs. Expunging people's records can help prevent people from reoffending, because a criminal record can be a substantial hurdle to obtaining housing and jobs, Jones said.

"People can get into a rut," Jones said.

Even if a judge opts for deferred adjudication, which requires a defendant to meet stipulations of probation before the charge is dismissed, the charge cannot be expunged unless it's a Class C misdemeanor. 

Travis County can help — and has helped — expunge people's criminal histories. Under former DA Margaret Moore, the county launched an expunction expo before the courts shut down in March to prevent the spread of the coronavirus.

The expo garnered a lot of attention from those seeking to clear their names of past charges, and the program reached capacity and was unable to accept more applications.

Brown, who has overseen Travis County diversion cases for years, said he welcomes Garza's plans to expand the diversion program, which has been slowly expanded since it was created under Moore's predecessor, Rosemary Lehmberg. 

"I'm excited about it," Brown said. "I think it's a great way to divert people out of the criminal justice system who can have a path toward having their case dismissed."

The key to the program's success is finding people who are determined to complete the required classes, Brown said.

"You want to set people up for success, and you don't want to put people in the program who otherwise would demonstrate that they may not be ready for this opportunity," Brown said. "If you don't put the right people in the program, then I think it diminishes the magnitude of the effectiveness of the program. ... The efficacy of the program and the wisdom of the program is in the success rate, in the end."