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Report: Texas county judge system creates uneven justice, conflicts of interest

Houston Chronicle, August 18, 2017

By St. John Barned-Smith

Texas needs to dramatically revamp its county court system, according to one criminal justice expert.

County judges in remote or smaller counties across the state serve as county administrator and preside over misdemeanor courts, according to Lawrence Karson, an assistant professor of criminal justice at the University of Houston-Downtown.

Under state law, the county judge does not need to have a law degree or practically any legal training.

In an essay in the August issue of the Journal of Criminal Justice and Law, Karson argues that the current system leaves defendants exposed and nurtures conflicts of interest, particularly since county judges who handle a large chunk of judicial matters get a $25,000 bonus from the state.

"Texas requires more training for a deputy serving as a jailer than it does for the judge who sentences an individual to that jail," Karson wrote, calling for counties across the state to create more "courts at law," where attorneys oversee judicial matters.

In large counties like Harris County, Bexar County and others, the state split apart the responsibilities and created courts at law and probate courts to handle the judicial responsibilities of the county.

In 210 other counties, however, county judges may preside over misdemeanor courts, capable of imposing penalties of up to a year in jail, or adjudicating juvenile matters, mental health cases, and other judicial issues.

Those judges handle a significant caseload, as well, he writes.

"The county courts handled 50,000 criminal cases in fiscal year 2016 nearly a quarter of which were drug related. Thirteen percent were for driving while intoxicated, with another 10 percent for theft. Assault cases approached another 10 percent, as did driving with an invalid or suspended license. The potential penalty in many of these cases was up to one year in confinement (for any class A misdemeanor offense).

For 15,000 of these cases, the defendant's representation was divided almost evenly between appointed and retained counsel. For the other 35,000 cases, the defendant had to rely on the prosecutor or the county judge to protect their constitutional rights. With 3 percent of all criminal cases handled by a bench trial and less than 1 percent by a jury trial, the legal knowledge of the county judge can be crucial to protecting a defendant's civil rights and liberties.

Yet county judges can commit someone to jail or to a mental health facility with absolutely no training in the law during their first year on the bench and less than four days of training prior in their second year of service as a judge.

And though they frequently act as actual judges, they aren't required to have a law degree, receiving as little as 30 hours of instruction in their first year on the "administrative duties of office and substantive, procedural and evidentiary laws."

Some judges end up essentially self-teaching themselves.

"You're having to count on the initiative of the judge," he said. "We don't do that with attorneys coming out of law school. We require them to take a bar exam."

The current system also creates the appearance of possible conflict of interest, Karson wrote, because county judges - who also oversee commissioners courts - would have no incentive to create the separate courts at law.

A 2014 report to the Texas Legislature on the issue found that 87 percent of respondents said they spend 40 percent or more of their time on judicial functions.

An Austin American-Statesman investigation in 2016 found that the system received little oversight and was being exploited, wasting hundreds of thousands of dollars in taxpayer money.

Bulking up education for incoming county judges or creating more courts-at-law would require more resources from the state.

That's a change that's unlikely to happen anytime soon, Karson said.

"Justice has a price," he said. "The current legislature seems more focused on social issues than financing the state's judicial needs, and that's a problem."