Travis Co. sheriff responds to accusations made about 'counsel at first appearance'

AUSTIN, Texas - Travis County’s immigrant community is worried about not receiving legal representation if detained under SB 4, a controversial Texas immigration enforcement law. 

The state law would allow local police to arrest people believed to have crossed the border illegally, but the law is on pause while federal courts review it. 

Meanwhile, local immigration advocates are blaming the Travis County sheriff for not allowing defendants to receive adequate representation.

"Please, please reinstate CAFA," a concerned community member said.

CAFA stands for Counsel at First Appearance. The Travis County Sheriff’s Office launched it in its central booking facility in 2022, but it only lasted nine days. Sheriff Sally Hernandez blamed the cramped space, not up-to-date technology, and not enough staff.

"Whatever these logistical hurdles are that the sheriff may be pointing to, that doesn't undo the fact that people who are having to appear at these hearings is having their constitutional rights violated," said Savannah Kumar, of ACLU of Texas.

"Ask her to resign and let someone who can do the job take her place and do it," a concerned community member said.

Sheriff Hernandez defended her efforts and said the sheriff’s office has made multiple attempts to try to ensure CAFA is executed. She said they developed a way to do so virtually, but defense attorneys and advocates rejected it. She said a part of the jail was going to be overhauled, but the building has plumbing issues. 

"If we’re going to make CAFA happen, it’s going to take collaboration, not the blame game in a Travis County Commissioners Court work session," said Sheriff Hernandez.

"Bring back counsel at first appearance and make it work like every other big city does, every other big city does with very little resources," a concerned community member said.

Advocates said CAFA is even more important now with SB 4 which allows Texas law enforcement to stop, arrest, and jail migrants on illegal entry charges.

"CAFA would be the first and potentially only line of defense against things like police stops based on racial profiling or other problematic stops under SB 4," a Travis County Public Defender’s Office employee said.

A Travis County Public Defender’s Office employee said she’s seen the impact of people not having counsel at first appearance.

"In the collateral consequences of missed work, lost housing, custody issues, and the downstream worst outcomes of people to their cases when they stand alone, uncounseled," a Travis County Public Defender’s Office employee said.

"Please give us our constitutional right back and implement it and enforce it," a concerned community member said.

Sheriff Hernandez said the Travis County Sheriff’s Office can do, will do, and has done.

ACLU of Texas and about 35 other organizations are calling for a plan to be put in place to ensure CAFA is happening.

Full statement:

"It’s time to set the record straight. I am for Counsel at First Appearance (CAFA). I’ve been a proponent of it from the word ‘go’." -Sheriff Sally Hernandez

On April 8, 2022, TCSO launched CAFA in its Central Booking Facility in downtown Austin. An antiquated facility built to technological standards of the 1980s, the Travis County Jail/Central Booking Facility was planned by Travis County to be demolished before 2020 due to its inadequate size and dilapidated structural elements. The Commissioners Court voted to suspend that plan indefinitely. TCSO and Sheriff Hernandez believed in CAFA passionately enough to attempt to make it happen in the cramped environment.

The need to facilitate private meeting spaces for counsel to meet with clients, securely move inmates through the process and manage the docket, while continuing to safely and securely receive and process arrestees proved to be something the building, technology and TCSO personnel were not equipped to handle. And it wasn’t just TCSO personnel affected. All parties involved in the process felt the pressure.

TCSO employees gave up their break room so attorneys could meet privately with clients. Officers picked up overtime shifts, giving up time with their families, and the Central Booking unit banded together to pull CAFA off. For nine days the program wobbled its way into existence and proved so taxing that five employees resigned. "That’s when I said stop. We have to step back and find a better way to do this. CAFA is very important, but I couldn’t stand for people to give up on their careers because they were pushed to the breaking point. The program was unsustainable in that configuration," said Sheriff Hernandez.

In the two years since CAFA was suspended, TCSO’s staff of problem solvers has been tackling the challenge. They sought counsel from everyone from maintenance staff to technology experts, engineers, attorneys, judges and elected officials, looking for innovative ways to make the program happen. Attached is a timeline of those efforts.

TCSO developed a way to execute CAFA virtually. The effort required months and months of engineering to bring Wi-Fi into a structure made almost entirely of steel, concrete and cinderblock. "Jails are built to be impenetrable. There’s no such thing as a simple renovation in this environment. Every effort to modify our current building to accommodate the needs of CAFA is met with opposition, and unique and costly challenges," said Sheriff Hernandez.

Each time a virtual option has been presented as a temporary way to accomplish the program until a proper infrastructure can be constructed, it has been flatly rejected by defense attorneys and advocates.

Clearly, TCSO has demonstrated their "can do" efforts are more than just talk. Ultimately, to make CAFA a reality, it takes more than just TCSO. Most recently, Travis County Commissioners Court approved funding for a proposal envisioned by TCSO to overhaul a decommissioned area of the Travis County Jail. The plans were strategically engineered by TCSO in collaboration with stakeholders and include a new courtroom for magistration, private meeting rooms for attorney/client consultation, secure corridors for inmate movement, restroom facilities, and office space. Once again, as the extensive efforts to make CAFA happen were gaining steam, the old building had its say in the matter, this time, massive plumbing issues.

The Travis County Jail/Central Booking Facility was plumbed with cast-iron pipes. After decades of use, 24 hours a day, seven days a week, the pipes are literally disintegrating. If the problem isn’t remedied throughout the five-story building, it’s not a question of if the new CAFA area will flood, but when; and when it does, it will flood with wastewater. Sheriff Hernandez believes both the new construction plan and the pipe repairs can and should be addressed immediately and in conjunction with each other.

"TCSO is not stalling Counsel at First Appearance; we’re not dragging our feet, and we’re not standing in the way of its progress. TCSO is fighting with a building that is falling apart. This is what I was talking about in 2018 when I said delaying construction would have lasting impacts on our community. Other counties accomplishing CAFA are doing it in facilities designed for it. We should be in a new Central Booking Facility by now and we’re not. We should have enough room to handle our duties and accommodate CAFA, but we don’t. The fact that CAFA can’t happen at Central Booking is not due to shortcomings or a lack of effort or commitment at TCSO, but it keeps landing on our back. If we’re going to make CAFA happen, it’s going to take collaboration, not the blame game in a Travis County Commissioners Court work session. TCSO can do, will do, and has done." -Sheriff Sally Hernandez