A federal magistrate judge has recommended people arrested in Galveston County for felonies be provided with criminal defense attorneys at all initial bail hearings.

The 45-page recommendation, released late Wednesday, by U.S. Magistrate Judge Andrew Edison, does not, however, throw out or block other changes the county has made to pretrial systems.

The recommendation, which still must be approved by a federal district court judge, supports a request by the American Civil Liberties Union of Texas to decrease the amount of time arrestees go without seeing an attorney.

The civil liberties union sued the county in April 2018 on behalf of Aaron Booth, 37, a Galveston man who was arrested for drug possession and spent 54 days in the county jail because he could not afford bail, according to the lawsuit.

The lawsuit accuses the county of operating an unconstitutional bail system based on wealth and of violating arrestees’ constitutional rights to an attorney and to due process.

Galveston County officials considers Edison’s decision a victory, although it still requires the county to change some of the ways it treats people accused of crimes.

Most notably, the county will be required to provided all indigent felony arrestees with a defense attorney when that arrestee first appears before a magistrate judge.

That means that people in the Galveston County Jail must be provided with a defense attorney within 12 hours of being booked into the jail.

Currently, the county’s process provides a defense attorney to an arrestee within 24 hours of their arrest.

“To satisfy the Constitution’s basic requirements under the Sixth Amendment, all Galveston County needs to do is provide counsel to indigent defendants at the initial bail hearing, just 12 hours earlier than it currently does,” Edison said. “It is hard to fathom how this could be problematic, given that Galveston County has apparently been able to effectively make counsel available at the bail review hearings held twice daily.”

He recommended that an injunction be placed against the county, requiring officials to provide arrestees with an attorney.

The responsibility of meeting that requirement appears to fall on Galveston’s six state district court judges, who Edison wrote had the “policymaking capacities,” to provide defense attorneys to arrestees.

Judge John Ellisor, the administrative judge for the district court judges, did not immediately respond to a phone call Thursday afternoon.

Representatives of the American Civil Liberties Union of Texas did not return phone calls or respond to text messages.

The district court judges had filed a motion opposing the need to provide defense attorneys so early in a person’s criminal processing, arguing that magistrate hearings, where bail amounts and other release requirements are decided, were not a “critical stage,” that Constitutionally required an attorney.

Edison disagreed.

“Not only is a bail hearing a ‘critical stage’ in the criminal process, but it is arguably the most ‘critical stage,’” Edison said.

He noted decisions made at bail hearings can affect family relationships, cause serious financial hardships, and the loss of jobs and income, and that the prospect of conviction is greatly increased when a person is jailed between the time of his arrest and trial.

Aside from providing defense attorneys, Edison ruled most of the county’s bail and pretrial systems appear to be Constitutional and denied an injunction requested by the civil liberties union that the system be drastically changed.

“I’m glad that the federal court has recognized that Galveston County has gone to great lengths and spent a lot of money becoming constitutionally compliant,” Galveston County Judge Mark Henry said.

Galveston County has budgeted about $3.5 million in reforms to the county’s jail and bail system since 2016, according to county officials. That figure does not include a $3.1 million purchase of land that the county last week approved to purchase land for an expansion of the county’s justice complex in Galveston.

The expansion will include new offices for a larger personal bond office.

John Wayne Ferguson: 409-683-5226; or on Twitter @johnwferguson.


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