Pay Increase for El Paso Court-Appointed Attorneys

The El Paso Council of Judges has approved a pay increase for court-appointed attorneys saying the lawyers are underpaid, while some County Commissioners say the process by which the attorneys are appointed is not transparent and the increase is harmful to taxpayers.

In a 17 to 4 vote, the Council of Judges voted to increase the pay for court-appointed attorneys tasked with defending individuals charged with a crime who cannot afford a lawyer. The current pay for court-appointed attorneys is $75.00 an hour for time they spend on a case in court and $60 dollars an hour for time they spend on a case out of court. The Judges agreed to increase the pay to $90 an hour in court and $75 an hour out of court. The increase takes effect April 1, 2014, in the middle of the fiscal year.

“It gives commissioners time to prepare to have to factor that into any new budget and the fees will still be lower than Travis County, Collin County and Dallas County,” said Judge Sam Medrano of the 409th District Court, who proposed the increase.

The Council of Judges is made up of all of the District Judges and County Judges in El Paso County. All of them are elected by voters. The Judges appoint the attorneys to represent defendants who can’t afford an attorney and also determine the pay for the attorneys. Because the Council is the Judiciary, it does not need approval from Commissioners Court – who sets the County’s tax rate and budget – to increase the fees. The Commissioners must find ways to fund the increase, which according to the County Auditor, will cost an additional $1.1 million a year.

County Commissioner Carlos Leon, who was at the Council of Judges meeting Thursday morning, said he supported the increase because he was moved by speeches made by private attorneys who attended the meeting and spoke about how important it is to fund the lawyers who are defending the County’s most vulnerable residents. “The only thing I ask is that you prorate it so we can make proper adjustments to the budget. If it can be done. if not, well, the decision lies with you,” he told the Council of Judges.

But County Commissioner Vince Perez, who has been studying the system by which Judges appoint attorneys said the Judge’s decision is “detrimental to the taxpayers.”

“Today’s decision shows a disregard for the taxpayers who elect these judges. The judges need to understand they’re also stewards of taxpayer funds,” Perez said in an interview on Thursday.

The pay increase comes at a time when the County is experiencing an unexpected rise in how much it pays appointed attorneys.

According to documents obtained by the ABC-7 I-team through the open records request, in fiscal year 2013, the County saw an unprecedented hike in indigent defense pay for private appointed attorneys. The County paid $6.3 million for indigent defense, a more than $2 million increase from the prior year.

In fiscal year 2012, the County paid a total of $4.2 million to private attorneys for indigent defense. That was a slight increase from 2011, when the County paid $4.1 million.

Judge Medrano said there’s never a good time to ask for the pay increase and he understands “times are tough.”

“That is absolutely a legitimate concern for the taxpayers. My response to that is another question: what’s the price of justice?,” Medrano said in an interview.

Private attorneys who attended the meeting echoed Medrano’s statement. “Without properly paid criminal defense attorneys, innocent people go to jail or face convictions and that simply isn’t right,” said Jim Darnell, a private attorney who does not handle many appointment cases but said he was there to support those who do. About eight attorneys spoke at the meeting in support of the increase. Most of them said they don’t handle many indigent cases but were there in solidarity with those who do.

“I have two paralegals in my office who have to index a lot of evidence and do a lot of work on cases I get appointed to. I pay them $20 an hour and I don’t get paid for the cases until they’re finished and in a Capital Murder case that can take two years,” said Joe Spencer, a criminal defense attorney. His most recent court appointment is to defend Jenna Farrey, the mother who’s dead baby is believed to have been found in the desert.

For the large majority of attorneys, court appointed cases are not meant to be their primary source of income.

Perez is not necessarily opposed to the pay increases if the judges can demonstrate their system is transparent and fair, he said.

Of the $6.3 million the County spent on court appointed attorneys in fiscal year 2013, about half was paid to a pool of 30 attorneys out of the nearly 300 eligible lawyers. “The judges decided they want to increase the fees without addressing the core of the problem,” Perez said.

Judges are supposed to appoint attorneys based on a randomized wheel system though the Judges also say they use their discretion to determine which attorneys are best for each case. The Council of Judges on Thursday also decided to start a committee made up of four judges, two private attorneys and a public defender to analyze El Paso County’s Indigent Defense Plan, which establishes how the judges should appoint attorneys. “We’re going to check if there are things we need to change or if it’s fine,” Medrano said to an attorney.

Only Judge Yahara Lisa Gutierrez of the 65th District Court and Judge Julie Gonzalez of County Court at Law 2 voted against the pay increases. Judge Gonzalez’s vote counted as three because of the magistrate judges under her.

“I’m a judge and I consider the lawyers who are going before me and justice and the right type of representation but I’m also a taxpayer and I’m also a member of this community,” said Judge Gutierrez in an interview. She agreed lawyers were underpaid but said the Judges have to “balance that with the needs of this community and this budget.”

The law firm of Lozano Walker received the most money for appointments, at $243,220 for two attorneys.

Because the increase does not go into effect until the middle of the next fiscal year, the impact for the upcoming year to the County will be $522,000, which will most likely come from the County’s contingency funds. The contingency funds are used for unexpected expenses that arise throughout the year. The $522,000 will take up 52% of the contingency funds. Perez said if something arises, such as the mold issue at the County Jail, next year and there isn’t enough money to cover it in the contingency funds, Commissioners will have to look into deep cuts or a tax increase.

After Fiscal year 2014, the increase will cost the County $1.1 million a year. If there’s a rise in the volume of indigent defense cases, that cost will go up.

Perez is concerned the Judges may have increased the fees to retaliate for Commissioners looking into the court appointed attorney system and finances. “The timing is just coincidence,” said Medrano.