Commissioners slam judges, judges fight back
By Travis Gumphrey
SHORTLY AFTER bills allowing county commissioners to appoint a lawyer or former justice of peace to become a criminal magistrate that presides over initial court appearances were introduced, opposition from the public and judges has moved the bills authors to withdraw them from legislation.
Republican representative Wayne Faircloth and senator Larry Taylor introduced the two bills after some members of the commissioner’s court asked for the authority to increase the number of magistrates.
On Tuesday, judges for and against the proposal made small speeches at the Galveston Republican Women luncheon at Moody Gardens.
County judge Mark Henry, above right, defended the proposal saying that other counties have similar systems in place and there is no issue.
He cited the pretrial release process as a key factor in the issues with the magistrate system.
Under Texas law, a person who is arrested must quickly be brought before a magistrate who finds probable cause, sets bond, and ensures that warnings are given.
Under the current system, Henry said because of the backlog of defendants awaiting bail and other judicial proceedings, there are often bonds being set by low-level governmental employees. Subsequently, defendants are often released before a judge has even signed off on the bond.
Henry used the example of a man, already convicted of domestic assault, who had been arrested for a separate charge and released.
“As of this morning, no judge has signed that bond,” he said.
The packet of information produced by Henry’s office states that prisoners are being released on the approval of personal bond office employees, who report to the commissioner’s court, but are not magistrates or attorneys.
It also states that there are only two officials currently performing daily magistrate proceedings, Associate Judge Stephen Baker, whose position was created by the commissioner’s court, and Henry, a member of the court. Henry noted that magistrate duties must be performed every day by elected judges or a magistrate contracted by the county, but elected judges haven’t held those hearings in years.
County Court judge Barbara Roberts, above left, presented the opposition to the bills at the GRW luncheon.
She said that the move was another step toward transferring powers from the judicial branch to the executive branch.
“Separation of power prevents one branch from taking too much power,” she said.
She also noted that allowing the commissioner’s to appoint magistrates would lead to attorney’s setting bail.
“It’s not going to be the prosecuting attorneys, it’s going to be defense attorneys,” she said. “Do you want them to control bail proceedings?”
While Henry noted that Galveston would not be the only county to use a similar system, Roberts said that comparisons to other counties aren’t relevant because those counties cover large areas with less dense populations.
“Commissioner appointment over judges in other counties don’t apply to this county,” she said, noting that only two counties out of the 254 in Texas are using similar systems. The rest use systems similar to the one currently used by the county.
Roberts also said that district judges should have the option to oversee the magistrate functions, rather than the commissioner’s court.
“If you want to test the sincerity of the opposing view, ask our elected judges if they will each sign up to perform the morning magistrate hearings twice a month, and be on call twice a month to conduct magistrate matters in person or via videoconference as they arise throughout the day,” as stated in the information provided by Henry’s office.
The bills were not supported by all commissioners and had not been the subject of a public meeting.
During the GRW luncheon, there were many in disagreement with the move by Henry and some commissioners.
Many judges on hand adamantly opposed the bills, including Judge Jim Schweitzer, who said the bills encroach on judicial authority.
Because of the opposition, the bills have been withdrawn by Faircloth and Taylor and the magistrate system will stand as is.
There is no word on how the commissioners and judges will move forward to improve the magistrate system and the backlog of prisoners in the county jail.