By now, many Texans are familiar with the City of Austin’s homeless and transient policies when it comes to enforcement. But the city’s first dealings with it occurred well before the July 1 ordinance change and centered on the judicial bench.
Back in 2017, the city council passed Resolution No. 20171214-060. The resolution directed the municipal court to annually report progress on the goals set forth in Resolution No. 20160811-037 and Ordinance No. 20171109-019.
Together, these two resolutions and city ordinance effectively directed the city’s municipal court to start prioritizing “personal bonds” for defendants deemed “indigent” by the court.
Personal bonds — or “Personal Recognizance” (PR) bonds — are bonds that let defendants out of jail without any collateral leverage given to the court, such as a typical cash bond, with the expectation that defendants appear before the court at their scheduled time.
If they do not show up for court, a warrant for their arrest can, and often is, issued.
When judges sign the bond statements, they are not required to — and rarely do — print their names. So, it can be difficult, and sometimes impossible, to determine which judge signed a given bond statement.
Prior to the Freebirds stabbing attack, Woodburn already had a lengthy criminal history, including drug possession; manufacturing and delivery of controlled substances; possession of controlled substances; soliciting a prostitute; and terroristic threats.
Municipal courts handle Class C misdemeanor cases, but also sign warrants and set bonds for cases ranging from minor offenses to the most serious of crimes — such as murder.
The statutes implemented by the Austin city council in 2017 directed the municipal court to operate in an “equitable” manner, tailored specifically for “indigent” defendants.
A precursor that led to the council’s ordinance was a 2015 lawsuit that accused the City of Austin of operating a de facto debtor’s prison for low-level offenses.
Additionally, the 1971 Supreme Court case Tate v. Short, cited in Resolution No. 20160811-037, declared unconstitutional “imprison[ing] a defendant, who had been found guilty of a fine-only offense, for nonpayment of his fine when he was financially unable to pay it.”
The only reference to a specific class of crime in either the ordinance or resolutions comes in reference to “adverse consequences of Class C fines and fees on low-income individuals and families.” No specifications on the class of crime were made in reference to PR bonds.
The Austin city council’s definition of “indigent” includes anyone whose household income is less than 200 percent of the federal poverty level; defendants or whose dependents are eligible for public assistance including food stamps or Medicaid; a prisoner or resident of a mental health facility; enrollee in secondary or primary school, someone under the age of 17; or someone who’s homeless.
It is typical for municipal courts to work with poor defendants to come up with sentencing that can be completed — such as community service — rather than relying solely on cash bonds.
PR bonds are also often used for defendants who commit low-level offenses, are not repeat offenders, and those who are not deemed flight or safety risks. This was common practice — but not as common as the city council would have liked — even before the 2017 ordinance’s passage.
Due to Austin’s significant and growing homeless problem, a sizable portion of what makes up the municipal court’s docket is indigent defendants and especially homeless ones.
With the goal of ensuring an “equitable” system that treats everyone with “dignity, respect, fairness[,] and accountability,” the city council set objectives for the court. Some of these were providing prompt, accurate service; making alternative sentencing available whenever appropriate; and treating all before them with respect and dignity.
More specific ones include “minimiz[ing] the issuance of warrants” whenever possible alternatives exist; “minimiz[ing] unintended adverse consequences…on low-income individuals and families”; and “considering the use of personal bonds.”
Since the ordinance, however, PR bonds are being used more and more frequently for “indigent” defendants accused of crimes more severe than simple Class C misdemeanors.
The Texan obtained records of numerous defendants who were let out on PR bonds for charges ranging from manufacture and delivery of a controlled substance more than 400 grams; aggravated robbery; aggravated sexual assault of a child; assault on a public servant; repeated DWIs; and assault on a family member.
For many of these defendants, their PR bond status was revoked — meaning, they violated their terms of the bond by committing another crime.
After these orders prioritizing PR bonds were passed, the time came for renewal of the municipal judges’ terms. The city created a Judicial Council which set the nomination process.
The committee assembled a nine-member panel of stakeholders who would make the decision on whom to renew. The panel analyzed the judge’s ability, fairness, and temperament.
According to an Austin Chronicle article from 2017, each judge was rated “excellent.” But there was another evaluation from the Austin Criminal Defense Lawyers Association (ACDL) used, to which at least some of the judges were not privy.
Another aspect of the process was a “self-assessment” essay in which the judges were to assess not only their time in that capacity — but also their commitment to implementing the goals set forth in the council’s resolution.
According to emails obtained by The Texan, Marti Bier — chief of staff for Councilmember Jimmy Flannigan, chair of the Judicial Committee — gave the judges the following prompt: “The City Council recently passed Resolution 20171214-060 outlining their goals and objectives for the Municipal Court. Please describe how you see your role as a Municipal Judge in implementing these goals.”
The essays were completed and the decisions were made. Only five judges were not renewed: Erik Cary, Beverly Landers, Witcher McCullough, Olivia Ruiz, and Celeste Villareal.
Those essays — also obtained by The Texan — contain a mix of dictation on the individual judge’s backgrounds, their service on the bench, their belief in the resolution’s established goals, and, ultimately, why their term should be renewed by the council.
However, one of the essays by Witcher McCullough — who eventually did not have his term renewed — highlighted a potentially significant ethical concern.
That concern is that the council’s directive violates the separation of powers and that the essays asked the judges to violate Texas’ Judicial Code of Conduct.
In his essay, McCullough began his letter stating, “I am pleased to respond to this request, but must add that I do so with some caution to make certain I remain in compliance with The Texas Canons of Judicial Conduct.”
The Texas Code of Judicial Conduct is a charter governing the behavior of Texas judges. All must follow it or risk reprimand from the Texas Supreme Court.
Judicial ethical complaints are investigated by the State Commission on Judicial Conduct (SCJC). A representative of the SCJC told The Texan they cannot remark on the propriety of an action unless a complaint is filed and an investigation conducted — which can take between four and six months.
McCullough’s essay raises concern over the propriety of not only certain parts of what was written, but the whole exercise itself.
The Texan spoke with McCullough, who called the entire ordeal “Nothing but a political hack job.”
Since the 2017 process, McCullough stated he was told “a handful of defense attorneys went and lobbied certain council members against my renewal…because I was not granting enough PR bonds, and the bonds I did set were too high.”
McCullough then mentioned a situation during his tenure in which a man charged with pedophilia appeared in front of him. McCullough did not give the man a PR bond and said some members of the ACDL questioned his decision, calling it “unfair.”
About the evaluation process, he added, “There was a lot of political wrangling behind the scenes that we found out about afterward.”
The Texan also spoke with Olivia Ruiz, another of the judges who were not renewed, who said, “A few of us thought [the essay assignment] was silly because it was asking us if we would follow the law, which is already the responsibility of a judge.”
“None of us understood the purpose of the ordinance,” she continued.
According to McCullough, meetings and hearings were held behind the scenes on the five soon-to-be-fired judges, to which they were not invited. To him, the inability to confront your accuser was not only improper, but also “pathetic.”
Both McCullough and Ruiz spoke to the city council in their regular meeting date on March 8, 2018, during the public comment section of the municipal court appointments agenda item.
One man, Robert Howe, speaking that day during the public comment opportunity, called the process that produced the appointment recommendations, “Unfair and cloaked in secrecy.”
The breach in decorum by the body was so severe, according to McCullough, that two councilmembers — one by personal email to him, the other in the proceedings itself — voiced their disagreements with the handling of the process.
In the essays, the judges were asked to express their commitment to ruling a certain way, specifically in terms of bonds, toward specific groups of people.
Canon 3(B)(10) states, “A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge’s court in a manner which suggests to a reasonable person the judge’s probable decision on any particular case.”
These essays are public record and therefore open to public comment.
And Canon 5(1) states, “A judge or candidate shall not…(i) make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge.”
McCullough pointed to this provision specifically, saying, “[The resolution] was asking us to commit to giving more and more PR bonds — in other words ‘mak[ing] a pledge or promise of conduct in office regarding pending or impending cases.’”
“It should be good enough to send out evaluations and get feedback from all the groups (police, defense attorneys, etc.),” McCullough stated — something that was already done each year before the new process was implemented — “but I didn’t think we should even have been asked these things.”
He then added, “I agree with what the goals are,” in terms of unnecessarily jailing an offender who would be better served by a PR bond, “but they cannot be telling the judicial branch what to do.”
Ruiz expounded on this, saying, “Take a defendant who commits murder and they’re indigent — [the council is] asking me how I’m going to rule on that. I don’t know and I don’t want anyone to think I’m going one way or the other. It all depends on the circumstances.”
She further took issue with the directive adding that “Indigency was already taken into account when it applied, but it is not the most important consideration — that is the crime itself and whether they’re a safety threat to others.”
Furthermore, Ruiz stated, when a defendant appears before them the judge is not privy to their financial information.
The Travis County District Attorney’s website does include “Finding of Indigency” forms among those published for these defendants which authorize court-appointed counsel for the defendant. The DA’s office did not respond by this publishing to our inquiry whether these files are made available to the municipal judges for bond hearings.
In one case McCullough highlighted, he had a man who committed a low-level offense who — if he was held on cash bond — was going to miss a job shift, which would then cause him to be fired. McCullough gave the man a PR bond and he neither lost his job, nor missed his court date.
This is exactly the kind of scenario for which this ordinance and resolution(s) were stated to be used. But as the examples mentioned above show, these are not the only types of offenders being given PR bonds.
Moreover, in Canon 6(C), municipal court judges are specifically exempt from some provisions of the code — in which neither of the above canons is included.
Ruiz, reiterating that when a bond is being considered judges are not informed as to the income of the defendant, added that there were published guidelines in place from the district judges on when to give PR bonds.
On what caused him to bring up the ethical code in his essay, McCullough stated, “Judges are not allowed to give advisory opinions — we can only give our judicial opinion when there’s a case presiding in front of us.”
McCullough pointed to a section in Resolution No. 20171214-060 that reads “…setting the amount of bail, including consideration of an individual’s economic status, to prevent bail from being used as an instrument of oppression; and considering use of personal bonds to minimize the time between an individual’s arrest and their opportunity to be released from detention.”
To that, he stated, “That’s law…the legislative and executive branch of the government shouldn’t be dictating to the judicial branch what to consider. We look to the law, not to the council.”
“We are to be independent,” a word he specifically used in his essay, “not dictated to.”
One of the other judges not renewed by the council, Beverly Landers, stated in her essay, “While no Judge can comment in advance as to action to be taken in any particular case, consistent with the Council’s goals, my role is to continue to expand my inquiries at sentencing.”
In McCullough’s essay, taking issue with the directive from the council, he stated, “There simply is not one shoe that fits all persons whether with fines or bonds. Each case must be thoughtfully reviewed considering all the statutory requirements with which our discretion is tasked. And we must always consider the various alternatives available.”
On the essay assignment overall, McCullough likened the exercise to a test in which if the judges did not express their complete commitment to the council’s effort, they would be fired.
Michael Coffey — a judge who was renewed and who oversees the Downtown Austin Community Court (DACC) in which much of the defendants are homeless — in his essay plainly stated, “These Council Guidance documents are consistent with my personal values. I fully support them.”
The Texan reached out to Councilman Flannigan for this story with a multitude of questions. He did not return a request for comment by this publishing.
While the ordinance’s best intentions may be about avoiding jail time for offenders who should otherwise not be in jail, it also appears to be influencing PR bond use on sometimes violent offenders with criminal histories such as Woodburn.
Questions about possible ethical violations during the 2017 renewal process, and the city council’s use of PR bonds as a judicial litmus test, raise some significant concerns about the activities and judgment of Austin’s local government — regardless of their original intentions on the matter.
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Brad Johnson is an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.