State grant funds legal aid for some arrestees with mental illness

Bexar County recently began a program partially funded by a state grant that could increase the number of indigent criminal defendants with mental illness released from jail on a personal bond before trial. The grant will help provide certain arrestees with attorneys when magistrates first set bail.

The Bexar County program, which began in September, could provide information for the Legislature this interim as House and Senate committees study jails, pre-trial services, mental illness in the criminal justice system, and the use of bonds to release individuals from custody.

Statutory framework

The Bexar County program is designed to work within the framework of the Texas Code of Criminal Procedure (CCP) for identifying arrestees with mental illness.

CCP, art. 15.17 requires that arrestees go before a magistrate within 48 hours of being arrested to be informed of charges and of certain rights, including the right to request an attorney if the arrestee cannot afford one. At this time, magistrates set bail. Art. 17.03 gives magistrates discretion to release certain defendants on personal bond but prohibits this for those charged with certain violent or serious crimes. Under a personal bond, defendants agree to return to court and to comply with conditions established by the court but are not required to post cash or surety.

Art. 16.22 requires a sheriff to notify magistrates within 72 hours if the sheriff has cause to believe that a person in custody has a mental illness. This can start a process of gathering and assessing information about the arrestee.

Art. 17.032 establishes procedures for releasing on personal bond certain arrestees believed to have a mental illness. Magistrates must release those who qualify, unless good cause is shown otherwise. To qualify, arrestees cannot be charged with or have a previous conviction for certain violent offenses. Arrestees also must be examined by a mental health expert. Magistrates must determine that appropriate community-based services are available and, unless there is good cause, require treatment as a condition of release on personal bond if certain conditions are met.

Grant to provide attorneys at magistration hearings

The state grant will help to provide attorneys soon after arrest to certain arrestees with mental illnesses who cannot afford to hire one. Attorneys will be appointed before these arrestees are first taken to a magistrate and their bail is set. Arrestees generally appear before magistrates at this time without legal representation.

Recommendation for release on personal bond. Appointed attorneys gather information about the arrestee and work with prosecutors to consider developing a joint recommendation for the arrestees’ release on personal bond. Magistrates must receive a written assessment by a mental health professional and a treatment plan as a condition of the joint recommendation for a bond. Under the grant, arrestees charged with certain offenses in addition to those listed in CCP, art. 17.032 will not be considered for a joint recommendation. Arrestees released on personal bond must agree to supervision by the Bexar County Pre-Trial Services Department.

The state grant was made through the Texas Indigent Defense Commission and will help pay for three assistant public defenders. The budget for the five-year program is $1.5 million, with the state grant accounting for about $607,000 of the total.

Evaluation. Data will be collected to measure changes in the number of arrestees diverted from jail to mental health treatment, and quarterly progress reports will be submitted to the state. The first report should be made to the Texas Indigent Defense Commission in January.

Bexar County projects that the program could increase the number of arrestees released on personal bond instead of jailed. During an 11-month period spanning 2014 and 2015, 125 arrestees were diverted from jail to treatment. If the entity assessing arrestees fully staffs the magistration facility as anticipated and certain targets are met, 2,164 arrestees could be diverted from the jail annually, according to the grant application.

Proponents of the program say that by providing attorneys to certain indigent defendants with mental illness at magistration, the grant program aims to help maximize the use of mental health treatment options and provide a more appropriate response to those with mental illness accused of low-level, non-violent crimes. They say diverting some arrestees from jail to treatment could help relieve jail overcrowding and save counties money that could be used to support the criminal justice system.

Some have expressed concerns that judicial discretion be maintained in decisions to release arrestees on personal bond and that magistrates receive thorough information about arrestees’ mental health. Proponents say attorney recommendations are not binding on judges, who may continue to make independent decisions and deny such release if it is appropriate or if the available information is not adequate, even if a recommendation is made for treatment rather than jail.

by Kellie A. Dworaczyk

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