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KERR COUNTY COMMISSIONERS COURT
Workshop
Friday, May 1, 2009
10:30 a.m.
Commissioners' Courtroom
Kerr County Courthouse
Kerrville, Texas
Direct Filing in Criminal Cases
PRESENT: PAT TINLEY, Kerr County Judge
H.A."BUSTER" BALDWIN, Commissioner Pct. 1
WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2
JONATHAN LETZ, Commissioner Pct. 3
BRUCE OEHLER, Commissioner Pct. 4
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On Friday, May 1, 2009, at approximately 10:20 a.m., a
workshop of the Kerr County Commissioners Court was held in
the Commissioners' Courtroom, Kerr County Courthouse,
Kerrville, Texas, and the following proceedings were had in
open court:
P R O C E E D I N G S
JUDGE TINLEY: Let me call to order the Kerr County
Commissioners Court workshop posted and scheduled for Friday,
May 1st, 2009, at 10:30 a.m. It's a bit prior to that, but
we've got everybody here. So, the purpose of the workshop is
to participate in a workshop with Jana McGowan, First
Assistant District Attorney in Williamson County, regarding
direct filing process in criminal cases. Ms. McGowan?
MS. McCOWAN: Thank you. Okay, I had no idea this
was an official workshop, so -- I really just came by to kind
of explain what Williamson County has done and let you all
ask questions, because I understand that Kerr County is
considering moving into some sort of direct file system. I'm
the First Assistant District Attorney in Williamson County.
I've been a prosecutor for almost 20 years now. I started in
Houston right out of law school back in 1985, and so did my
boss, the elected District Attorney, John Bradley. And both
of us worked there for three or four years before we ever got
to central Texas and started in Williamson County, and when
John became the District Attorney in 2001 after Ken Anderson,
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the former District Attorney, became a judge, he asked me to
be his First Assistant, and we almost immediately started
talking about what kind of changes we should make in the
office to accommodate the growth that Williamson County was
experiencing during that time frame.
Being just north of Austin, Austin is starting to
encroach into Williamson County, and our population has grown
pretty dramatically, somewhere in the area of 350,000 to
400,000 people now. And we have about 1,900 felony criminal
cases that are filed every year, and probably another 10,000
to 12,000 misdemeanor cases that are filed. We have a
separate County Attorney's office from the District
Attorney's office, and they too recently have implemented
sort of a -- a modification of a direct filing system that is
hopefully expediting their cases as well. But a lot of
people don't really know what direct filing means, and it's
really pretty simple. And it's not a new concept, because we
didn't make it up. We borrowed it from Houston, because
that's where it originated back when they were experiencing
growth, probably back as early as the '70's.
And what it means, essentially, is that as soon as
somebody from a prosecutor's office has screened a file and
', looked at at least a probable cause affidavit, getting
somebody arrested, that that information then goes to the
District Clerk's office and a file is opened, so it is
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things that smaller counties have problems with. And we've
sort of added in conjunction with that an initial screening
over at our magistrate's office where a prosecutor goes every
day of the week except for the weekends and looks -- takes
sort of a preliminary look at who is arrested overnight on
felony cases, and whether or not we want to accept those
charges or not, and direct-file the case and get them started
into the criminal justice system.
That -- those two steps, combined with them having
some court settings before a defendant is actually presented
to the grand jury and indicted, has expedited cases in
Williamson County in ways that we expected and ways that we
did not expect. We've had a lot of benefits that we didn't
really anticipate, and so before I start talking about the
tracking of a case through the system the way it works now,
let me talk to you about what some of the benefits are. In
every criminal justice system that I'm familiar with, there
is the potential to have delay built into the process, where
there's -- there's really not much going on because you're
waiting for something; you're waiting for a laboratory report
or a police investigation to be concluded or a defense lawyer
to get paid, or a defendant who's out on bond to actually get
a lawyer.
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And so we started looking for ways that we could
sort of eliminate some of these dollars and move our cases
more quickly through the system, because as our numbers were
growing, we didn't want our dockets to grow, and we didn't
want to have our caseloads get so high we weren't really able
to manage them, and this may be a real -- a benefit to our
county in a lot of different ways. We had a talk like you
all did; we didn't have an official workshop, but we talked
to our District Judges and our District Clerk's office and
our court coordinators all about how their offices might
change and have to accommodate some things if we went into
this system, and so with everybody's agreement, we began
implementing test cases and working through the test
situation before we did a full-scale, you know, switch-over
to direct filing.
The benefits that we've seen have been from as
little as actually having a home for some of that paperwork
that sort of floats around when there's not a file open in a
clerk's office, which is the holder of public records.
There's really no place for things like the compliant, which
is a public record, or the bail bond, or early motions that
need to be filed when there's, perhaps, a motion for somebody
to be examined for competency or sanity. Or if they violate
conditions of their bond, there's no place for that motion to
revoke their bond to be filed. And so you had documents that
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should have been official court records, you know, that ended
And so that's been one of the -- the little
the media wants a copy of a probable cause affidavit, they go
to the District Clerk's office and they pay their dollar and
they get their copy. In addition to moving the cases more
quickly through the system, our jail actually gives us some
credit for helping reduce the jail population. I know that's
big for commissioners, because one of the things that we're
always trying to do is keep our jail population under control
and keep from having to add beds or add staffing. And by
doing that early screening of the cases and deciding whether
or not charges are valid or maybe have been mischarged, then
we've managed to help expedite cases through the jail.
For instance, if we decide that a felony case
really would be better prosecuted as a misdemeanor -- we have
many, say, aggravated assaults where there was really no
injury, no harm -- you know, maybe not a knife or a firearm,
maybe some other potential deadly weapon, and there was a
threat, but it's kind of a no-harm, no-foul situation. Those
can be prosecuted as a misdemeanor terroristic threat fairly
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easily, and treated significantly and equally as well in the
criminal justice system. So, by catching that right when
they come into the jail, we can let the magistrate know that
we're going to refer it to the County Attorney's office to be
prosecuted as a misdemeanor. They can initiate their
paperwork and bail can be set appropriately, so instead of
sitting in jail or on a $15,000 or $20,000 bond, that
defendant may have bond conditions that reflect what he needs
to be doing, and he can be released on a lower bond under
certain circumstances.
Other benefits. The defense bar. I can't believe
that, you know, anything I would ever do would seek to make
the defense bar happy, but a lot of times when they're
waiting for an indictment or for the prosecutor's office to
do something and they're not meeting with their client on a
regular basis or seeing them in court, their clients begin to
think they're not doing anything on their behalf, especially
if they're sitting in jail waiting for something to happen.
And so, by bringing the defense bar and the defendant and the
prosecutor to court, even before indictment, it gives them an
opportunity to do some discovery on the case, to start making
punishment recommendations. And, actually, over the past
three years that we've had the direct filing system,
one-third of our defendants have been pleading guilty to an
information and never having to have their cases presented to
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the grand jury. And I think that was the biggest unexpected
benefit, that -- that so many people would be willing to
plead guilty before their cases were reviewed by a grand
jury. And we were initially pleased when that number, you
know, hit 25 percent, but now it's been consistently at a
third for the last three years.
Let me see my little cheat sheet over here, Bruce.
I just did a presentation on Wednesday afternoon for court
administrators across the county -- across the state, because
our local administrators were hosting the regional conference
or the state conference for court administrators this year,
and so about 75 of them were there. And I expect, from the
comments that we had, a lot of those people will be going
back and talking to their judges and their prosecutors about
whether or not something like this could be modified to fit
their county. Williamson County's lucky in the sense that we
have a single county and, you know, two prosecutors' offices,
and we're not a multi-county jurisdiction, but I think it
will work in multi-county jurisdictions as well. It's just a
little bit more complicated for the prosecutors to keep track
of the cases.
I mentioned the jail population. We have a pretty
big jail in Williamson County. They have an empty floor that
at one point it looked like it was going to have to be opened
when they expanded the jail several years ago. They -- you
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know, they projected for future growth. We've managed to
keep them from having to open that floor just yet. And the
average jail population used to be about approximately 700
people a day. That's dropped to 550-ish a day, and I think
that's because those cases are moving faster through the
system. People are being able to make bonds that more
accurately reflect what they should have been charged with
initially. And when you have a prosecutor who's reviewing,
at an early phase, those -- those charges, then you eliminate
that initial two- or three-week period sometimes where you've
got a file open in a prosecutor's office, and no lawyer has
looked at it yet to see whether or not the person has been
properly charged or whether or not the -- you know, the
correct charges have been filed.
I have a couple examples that I can think of that
we caught when we first started doing this, and that was the
first steep that we took. We started going to our
magistrate's office every weekday and looking at whoever got
arrested overnight and reviewing their probable cause
affidavit, and sometimes we had to call the -- the police
agencies or the outlying agency, like the justice of the
peace court or the municipal court and say, "Do you have a
copy of it? 'Cause we don't have one yet." But in reviewing
that, we could see where they were making mistakes and filing
drugs as the wrong category, where it might be a misdemeanor
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drug as opposed to a felony drug. My personal favorite is
one that I -- I screened where they had filed burglary of a
habitation with intent to commit theft on a man who had,
while his ex-wife was out of town, taken his new girlfriend
to her house for some reason and ended up having sex in the
house, and the neighbor who was supposed to be watching the
plants came and caught them. And the police filed on them
for burglary of a habitation with intent to commit theft
because they stole electricity by turning on the lights. And
so that was clearly a criminal trespass, but not a burglary,
and, you know, that was diverted. Yes, sir?
COMMISSIONER BALDWIN: Who was charged, the husband
or the neighbor?
MS. McCOWAN: The husband. The husband.
COMMISSIONER BALDWIN: Husband, okay.
MS. McCOWAN: Yeah, the neighbor had a key. He was
supposed to be looking after the plants. So, that's the kind
of thing, you know, that doesn't happen a whole lot. More
often it's a mistake thing that a particular drug might be a
different category than it is. Hydrocodone is one that's
fairly commonly mistaken, because it can be in Penalty Group
1 or Penalty Group 3, which makes it either a misdemeanor or
a felony. Most often it's a Penalty Group 3 misdemeanor, but
they don't always realize that, so we catch a lot of those
little charges mistakes, or decisions that can be made early
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on and help, you know, sort of sort things out and divert
them through the process.
Another thing that we do is the court
administrators actually prepare a schedule for the -- the
magistrate of all their court dates, and they tell them what
their first court date is going to be, so if they're arrested
during a certain time frame, then they know the first court
date is going to be on this particular date in that court.
And by giving that to them at the jail, then before that
person's ever released on bond, they can be told when their
first court date is, and they don't have this, you know, 60-
to 90- or 120-day delay waiting for an indictment before they
ever have to go to court, and we lose less defendants that
way. They know before they even get out of jail in most
situations when they're going to have to report the first
time. So, that made the bail bondsmen happy, another
unintended consequence.
Our district court distribution evened out, because
prior to this system, we had rotating grand juries. We have
three district courts that share criminal jurisdiction out of
the five in our county, and each one of those courts has a
grand jury that meets for a three-month term, and then the
next court has a grand jury and the third court has a grand
jury, and they just rotate like that. Well, it used to be
that all of the cases that were indicted in a particular
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grand jury went into the court whose grand jury it was, so
they had this feast of new cases coming in, and then when the
next two grand juries were in session, they weren't seeing
anything new, except for people who maybe already had a
pending case. And so their dockets were uneven because they
had this sort of feast or famine situation of cases coming
into the courts. We persuaded the judges that a random
distribution would be more appropriate, and that would be --
that way we wouldn't have this, you know, potential
accusation that we were somehow manipulating which court a
case fell into by which grand jury we took it to, and also,
it would help their dockets level out in the long run.
And so what the District Clerk's office and the --
and the District Judges agreed to do was they have, you know,
just like the little ping-pong ball machines where the
', ping-pong balls -- we have these little flat discs, and
they've taken an equal number for each court and written that
', court number on it. And so in the mornings, when the
prosecutor screens the case over at the magistrate's office,
we say, "Yes, we're going to accept this charge." We look to
see if there's something already pending that would attract
that particular defendant's case to one of our courts
already. If they have a pending charge, we want all new
cases to go to the same court. Or if they're on probation in
the court and there's going to be a revocation filed, we want
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that same court to hear their new situation. We don't want
to separate those out.
We also try to make sure that codefendants' cases
go to the same court. We're not splitting them up into
different courts, and especially in a county where we have
two prosecutors sharing jurisdiction, that makes sense to
have some way to sort of screen those and make sure that if a
defendant commits new crimes, that the same prosecutor's
office is handling those cases and the same court is getting
those cases. We don't have to make multiple, you know,
~!, situations where one -- one prosecutor may not know what the
other prosecutor is doing. So, by doing that, our -- our
district court distribution evened out, and the judges no
longer -- I don't think I've heard them complain that they,
you know, somehow didn't get a case -- particular case in a
long time, because they realized that they had a random, fair
distribution setup according to the way that they actually
wanted it done. With suggestions from us, of course.
And so those are the sort of benefits that we've
seen in having this system. And really all it involves,
again, are three things; an early screening by a prosecutor's
office of the cases right at the very point where they come
in, then the opening of a file in the District Clerk's
office, which is the part that's the direct-file part, and
then the additional step that really makes it all work is the
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-- having a court setting even before indictment, where the
prosecutors, the defense attorney, and the defendant can
share information and start negotiating and working out those
situations.
MS. UECKER: Jana?
MS. McCOWAN: Yes?
MS. UECKER: If -- say Court 3 has just had their
grand jury, they're done, and the following day the little
disk is drawn to put a case into Court 3. Does that -- and,
no, they don't plead out, nothing happens, and it needs to go
to grand jury. Does have it to wait then three months --
MS. McCOWAN: No.
MS. UECKER: -- before it goes to the grand jury?
MS. McCOWAN: We have a grand jury that's meeting
weeks. And --
MS. UECKER: Regardless of the court?
MS. McCOWAN: -- just because it's assigned to the
court doesn't mean it has to go to that particular grand
jury.
MS. UECKER: Okay.
MS. McCOWAN: I think I've covered most of the key
points. Is there a District Clerk or County Clerk
represented? Yes. I know the issues that they wondered
about when we were starting out. You know, we had these
cases where some public records were going into -- but
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ultimately they don't get indicted; the case is no-billed.
All we've done is -- is taken the position that by filing a
dismissal, getting the District Judge to order that, and
then, you know, they close their case out by dismissal, that
they don't have to disappear. It's no longer sort of a --
you know, a state secret that somebody had their case
presented to the grand jury. The prosecutor's office still
has the ability to present cases to the grand jury without
ever having them direct-filed or without a warrant being
issued, and we do that frequently. You know, the police will
send us something that probably doesn't need to be indicted,
or it's just -- certainly shouldn't be indicted. It's not --
you know, it's not a criminal act, but there's somebody out
there saying, you know, "I want a criminal prosecution."
We don't open a file and make those people start
coming to court. They don't get arrested. We present that
to the grand jury, and then if the grand jury says yes, they
should be indicted at this point, we would do it the same old
way. We would file it into the District Clerk's office and
it would start going to court. So, it leaves the police and
the prosecutor's office that discretion that's needed in
order to make sure that, you know, situations that are sort
of iffy, you know, whether a grand jury wants to decide
whether or not an injury to a child was reasonable discipline
or not, you know, they still get to decide that without, you
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decides to go ahead and file charges and get them into the
system and try to work things out early on.
MS. UECKER: So, this is mainly for custody
defendants, defendants who are actually in custody?
MS. McCOWAN: It works for all of them. The
'i custody defendants have the additional benefit that they will
be notified of their first court date before they're released
from jail. But if they make bond before they ever -- before,
you know, the court is assigned and the file is opened, then
it goes the same way it used to. It would be up to the court
administrator to send notice to that defendant or bail
bondsmen about the first court date.
MR. BARYON: That would be pretty easy for us,
because you could just pick the next -- whatever the next
grand jury is, if it's Bruce's or ours. They'll get that
next court date. We'll know from the beginning; we won't
have to wait for it to be assigned. Because we don't have
the same grand jury system where one grand jury sends cases
to each court. Each court has its own grand jury.
MS. McCOWAN: Yeah, it's more a factor in getting
that defendant to court, no matter which court he's going to,
at some point before indictment. And so, if you have a court
date regularly scheduled once a month, you can say that
everybody who's arrested the prior month is going to get that
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first court date the next month, or some variation of that.
MS. WILKE: Jana, what is it you do on the court
date? Because there's no arraignment; they haven't been
indicted yet. We have a standing discovery order. So, what
is it that's addressed at that court setting, and is there
one or are there multiple? Because, as you just mentioned,
sometimes it can take three months to get a lab report. So,
are they set every month, and when they come to court, what
is it that they're doing? Because their attorney has to come
with them, so we're paying the attorney to show up to court
and do what?
MS. McCOWAN: Well, there can be multiple settings
before then. We have -- our coordinators decided to call it
pre-indictment docket call, and they usually come probably
~~ once a month up until that point. Sometimes it's a matter of
waiting for, you know, a retained attorney to get paid before
he's willing to work the case out. A lot more times we put
pressure on him; we make some offers that maybe are just
slightly better than they're going to get if they wait till
an indictment to encourage them to go ahead and plead guilty
and resolve their situation. What can happen is, discovery
can go on, offers can be communicated and exchanged. The
Judge can know if there's any problems that are being brought
up. For instance, if somebody needs a mental health
examination or has been found incompetent, and there has to
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be some sort of a situation where there's going to be, you
know, the brief hearings to send them off to wherever it is
that Kerr County -- I guess you send them to the Kerr State
Hospital.
MS. WILKE: See, those are so far and few between,
probably about three a year, so we have a lot -- it seems
like we have a lot of defendants coming three months before
they get indicted. We have a standing discovery order, so
there really shouldn't be any discovery issues, but the
attorney's getting paid to come to court and, you know, just
make -- I guess, try to hammer out a plea offer.
MS. McCOWAN: Right. I think that's the most
important thing that happens, is that communication, because
when that's going on where you're, you know, communicating by
phone or by letter with a defense lawyer, if they don't have
their client right there, and they certainly don't if they're
in custody, then they have to go make a trip to the jail,
which I assume the County also gets billed for.
MS. WILKE: Yeah. We're doing a jail docket now,
so that's being handled a little different. The jail
attorney gets a flat fee, and then we have a prosecutor that
handles that. So --
MS. McCOWAN: But that's at the preliminary stage,
the very beginning?
MS. WILKE: Right.
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MS. McCOWAN: That's in conjunction with what I
I~ would call that initial screening. But I think there's still
the possibility -- you know, we have some attorneys who want
a little bit more information or they want to review the DWI
video tape or something like that, so it may not happen
i before that initial setting. I don't know how diligent your
defense bar is about coming in to get their discovery or to
-- to communicate their offers, but we've found that ours are
'~, -- are more diligent about it when the defendant's sitting
'i
'i right there with them waiting for something to happen. But
you're right, it is a court setting where it may not be much
more in front of the Judge than the Judge saying -- where'd
the Judge go? -- the Judge saying, you know, "Do you need
more time?" And then it gets reset.
MR. BARYON: So, I guess a corollary to that is,
have you seen a decrease in the life span of a case? Let's
say from the time a person gets arrested to the time their
case is resolved, on average, are you seeing --
MS. McCOWAN: I would say yes.
MR. BARYON: -- a decrease? Okay. So, the -- it
might -- might be misconstruing to say that because we're
having these pre-indictment hearings, that there's going to
be an increase in defense attorney costs. We're mostly
appointed defense counsel here, and so that's a concern, I'm
sure, for the Commissioners. And if -- if by -- and maybe
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another way to ask it is, are you seeing about the same
number of hearing dates or court dates set on a case, just
that it's moved up in the timeline?
MS. McCOWAN: I think I'd have to say yes. I don't
know about you, but I would say our average case, you know,
if there's not really going to be a trial or something really
difficult, probably takes -- and this is just sort of a
guess -- six months. You know, maybe as much as six months
to resolve. And that six months used to occur after the
indictment, so we had that pre -- you know, that three-month
period in there before they got indicted. Now you've moved
that back where they've already been doing, you know, half of
that work before there ever was an indictment. So, at the
point when they've been indicted, then you may have a few
more settings to hammer out the final details or put it on
the trial docket or -- or they just go ahead and plead, you
know. Okay, they did get indicted, and so, you know, they
were hoping that maybe they weren't going to be.
MR. BARYON: Bruce and Lucy, do y'all see that if
the Judges were to stick to this docket control order, the
scheduling order, and they're going to hold us to, you know,
three court dates or so, that we can -- we can kind of keep
doing the same thing that we're doing as far as the whole
argument that sometimes a defendant just needs to ripen
before he's going to plead? He kind of needs to be in the
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system for so long before he's going to plead?
MS. McCOWAN: That's pretty much true.
MR. BARYON: That by having the pre-indictment
docket, you're -- you're getting that --
MS. McCOWAN: You're helping them.
MR. BARYON: -- case moving along and churning, and
the ripening starts. Instead of the indictment being the
trigger point, the arrest is the trigger point.
MS. McCOWAN: Yeah, that's the -- that's the
statistics that I haven't been able to monitor, 'cause our
personal computer software for the county used to age cases
based on when they got filed in the clerk's office, so when
that didn't happen, you had, you know, 60 or 90 days that
weren't counted on the age of that case. But I can tell you,
just overall -- in fact, when I think about it, our jail
defendants that go to trial, a lot of times we're reaching
them now within six to nine months, where it used to be a
really good thing to get to them by a year or a year and a
half. And so I don't know that that's all attributable to
the direct filing, but I think the general movement of cases
has kind of kept going.
MR. BARYON: Can you talk to us about software?
What is -- what solution have you guys found to facilitate?
'Cause you've got to be a lot more organized in the
prosecutor's office to do this.
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MS. McCOWAN: What do you use currently?
MR. BARYON: We don't have anything. It's
basically the way things were done in 1975.
MS. McCOWAN: Yeah. Williamson County is lucky in
the sense that our commissioners have -- we have an I.T.
department, and I don't know whether Kerr County does? Okay.
And those people are responsible for not only maintaining all
the computer and equipment, but also making recommendations
about software and stuff. Before I was ever there, they
began using a program called Legacy by Tyler Technologies, or
also known as Software Group. I guess it's Tyler now. And
it is an integrated package in that, you know, the
prosecutors have a package, the jail has a package, the
clerks have a package.
MR. BARYON: Is that what Odyssey is now?
JUDGE TINLEY: Yes, Odyssey.
MR. BARYON: Successor to Legacy.
MS. McCOWAN: And we're getting ready to transfer
our criminal justice system to Legacy. We're not there yet;
we're just getting ready to start configuration. That will
probably happen the end of this year.
SHERIFF HIERHOLZER: Legacy or Odyssey?
MS. McCOWAN: Odyssey. We have Legacy now; we're
going to be using Odyssey.
MR. BARYON: Have you found that Odyssey has the
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functionality that you need in the prosecutor's office?
MS. McCOWAN: It has a lot of it, because it's very
similar to Legacy, which is what we've been using. When we
started -- when we changed over to Legacy, the former D.A.
had not been using that particular package, and so we started
using it and seeing what it could do for us, and I like it
plenty well. But once we knew we were going to get Odyssey,
we didn't continue to try to investigate more and figure out
more and more, 'cause we were beginning Odyssey, so we're
really looking forward to that, though. But I know that
Tyler has admitted that their prosecutor package is not --
you know, is not where they want it to be. They --
MR. BARYON: They informed us in -- in a
teleconference we had -- what was that, a few weeks ago?
MR. CURRY: Yeah.
MR. BARYON: That they're at least a year out from
having the functionality that -- that we would need to do the
-- the direct-file system through Odyssey. But it's kind of
a good database; it's a good place.
MS. McCOWAN: Yeah. I don't know that it's going
to be a problem for direct filing. Odyssey doesn't address a
lot of the things, like assets forfeitures or bail -- bail
bond stuff or the civil things that offices do in the
prosecutor package. But I recently got invited to go attend
a focus group in Plano where they had prosecutors and
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investigators from about six or seven or eight offices, some
that were using, some that are transferring, talk about
what's there and what needs to be there. And they have
committed to dedicating some manpower to bring the prosecutor
package up to what it needs to be. I'm really looking
forward to the change. I know that a lot of people aren't,
and I keep hearing complaints about the things that they are
using it for. But, you know, I sort of attribute that to --
I don't know if I want to say this in front of this entire
big group. You know, in some counties, when you've been
doing stuff the same way for years and years, it's really
difficult to persuade somebody to make a change, you know, on
the hope that it might be better.
It was really gratifying for me Wednesday, when I
did this little presentation to the court administrators.
The two court administrators who sponsored us, asked us to
come talk about it, were two of the biggest complainers when
we thought about changing. They didn't want to do it,
weren't happy about it initially, and now to listen to them,
you know, talk about it, you would have thought that they
were on board all along and that this was the greatest thing.
And they said that they would never think about going back to
the old system. So, you know, that was -- that was nice to
hear after -- after getting adjusted. I think, you know, our
generation -- and I say this including myself. Even with,
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like, older generation, this -- you know, we're not used to
computers and -- and the things that are happening. But
society is speeding up, and you got to have that technology
available to -- to keep up with it and to keep track of
things, because it -- it's pretty bad for a criminal case to
get lost. And I know that in lots of smaller counties,
somebody might sit in jail for a while, even as much as a
month or longer, without anybody in a prosecutor's office
even realizing they're there. You know, that's a really bad
~ thing.
So, this is one of those ways that, you know, it
helps to sort of start tracking cases early on and keeping
them through the system. And you'll have to work to get your
-- some way in your office to -- to keep track of them
electronically, unless you're really good and can -- people
don't like to come in my office, 'cause I have files in
there, but I know which ones they are. Are there other
questions about direct filing, though? Because I think, you
know, I've tried to simplify these little presentations that
I make, 'cause it's not rocket science. It requires some
slight business modifications for each office, maybe a little
-- a few different personnel assignments, a few changes in
job responsibilities, but it's not hard. It's fairly easy to
implement. And it's the kind of thing that we did some test
runs initially to see how things went. We -- we chose a
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group of 25 cases and let the attorneys know we were going to
file them, and gave them court dates, and the judges would do
it. So, we did some test runs along the way before we dumped
everything into the system.
MR. TROLINGER: Do y'all share calendars between
your different prosecutors electronically?
MS. McCOWAN: You mean, like, through Outlook?
Or --
e-mail.
MR. TROLINGER: Yeah, anyhow, any way. Fax,
MS. McCOWAN: Yeah, we can have Outlook where I can
give anybody access to my calendar so they can see it, and --
I don't mean everybody can see my calendar, but people that
need to can.
MR. TROLINGER: Okay, thank you.
MS. McCOWAN: The docketing system is something
different. Our court administrators have their own package,
and they are the ones that generate the -- the dockets. I
think that maybe my secretaries have the ability to go in and
look at those so they can pull cases ahead of time. But, you
know, there's certain rights and -- and rules that any
software package can have where it can authorize certain
people to view and certain people to change and do that sort
of thing.
MR. BARYON: How does the prosecutor, at the time
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of magistration, who makes the decision on whether this thing
goes forward or not, clue in the coordinator on, "Hey, this
is a new name to add, this is a new case, here's the
information"?
MS. McCOWAN: It's actually coming from the Clerk's
office. Let me do the short version of a case through the
office. Defendant gets in jail. Paperwork gets left with
the jail. Before the magistrate is going to give him his
little warnings in the morning and set his bail, we go over
and take a look at that paperwork, which includes the
probable cause affidavit. If it looks like it's a decent
enough case and there's no real questions to be asked, we
say, "Yes, we're going to accept the charges." We fill out a
cover page that goes to the magistrate. That gives us the
opportunity to say this defendant needs a higher bond than
the normal schedule that the judges have asked them to use
for whatever reason, and they can either follow that or not.
And then the defendant goes to the magistrate. There, he
gets his regular warnings about what he's been charged with
and what his bail amount's going to be. He's told that he
has a court date on a certain date, and he fills out a piece
of paperwork that says that court date, and he signs it, and
the original goes to the clerk's office and the copy goes
~I
', with him, so he's got that piece of paper to show whoever he
needs to when he's supposed to go to court the first day, and
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which court he's going to.
I skipped a step. After we accept the charges, we
can hand it to the District Clerk's office and they also
check the computer to see if there's a case that's going to
attract it anywhere. If there's codefendants, we let them
know so they can link them in the computer, and then they
assign the cause number, which then determines the court
date. So, the magistrate gives them their court date. If
they're in jail, they get brought over to court on that date,
and their lawyer has been notified and they show up, and
everybody's there. If they make bond and they show up in
court, sometimes they have a lawyer hired; sometimes they
don't. If they're going to hire a lawyer, then they get
reset, so that they've been told. And that's another area
where it moves things up, because if you wait until after
indictment and they still haven't got a lawyer that they're
going to hire, you have to wait for them to hire a lawyer and
do all that stuff.
First court date. By that time, we generally have
not only the probable cause affidavit, but we've run a
criminal history, and hopefully gotten an offense report in
from the police so that we have more, you know, complete
information about the defendant. Many times on, you know,
ordinary, run-of-the-mill, routine cases, we can make a
recommendation that first day. I really push my prosecutors
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to get their recommendations made early, because the earlier
they know, you know, the earlier that negotiation starts, the
better off we are. If they don't plead the first setting or
the second setting, eventually, when it's ready, it goes to
the grand jury and they continue going to that same court.
If at any time they decide they want to enter a plea of
guilty, we prepare an information that we've already got in
the file, and we just file that information, that date, in
that same cause number, and they plead guilty and go on their
way. If they've never plead guilty and it gets indicted, the
indictment goes in that same cause number. They're not
opening separate files or separate lines in the clerk's
package now; it's all in that same cause number. And a
prosecutor is going to be the one that's made a decision
about whether or not there's going to be separate cause
numbers for separate offenses, or whether or not offenses can
be grouped into a single cause number. If they don't plead
guilty, then eventually, you know, they're indicted and they
have their trial, and they're found guilty most of the time.
MS. WILKE: So, Jana, in -- is the pre-indictment
docket handled with the indicted docket, or do y'all have --
MS. McCOWAN: Yes, it's done at the same time. We
don't do separate days. The district courts have done it
differently. I think one court says okay, they have, like,
all-day dockets Wednesdays and Thursdays; they're going to do
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the pre-indictment cases Wednesday morning. So, they just
add them to a regular docket.
MS. WILKE: So, the way we're doing it now is they
get arraigned, they get indicted, they are summoned to court
and arraigned. When they're arraigned, they're given one
pretrial setting, because then we have a standing discovery
order, and then they're set for trial. And then if a plea's
worked out between those two dates, then we obviously set
them on an earlier docket to plead them before the trial
setting. So, really, we're -- we've got an arraignment and a
pretrial setting, and it seems like this would add more
settings, because then once they're indicted, then you still
have to arraign them and set them for -- for at least trial,
so it just seems like it would be adding more in our county.
MS. McCOWAN: Potentially, it does. Because we --
we had only one of our district courts really put a
limitation on -- and he still follows that. After there's an
indictment, he has a first setting, which is called docket
call. Two announcement dockets, which are just kind of that
-- you know, what's still going on, and then it gets set for
pretrial or jury trial. The reason we encourage our judges
to move away from, you know, setting stuff right away for
pretrial and jury trial is it really puts an additional case
load on the prosecutors, because you don't know exactly
what's going to trial. And this way you can focus better on
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your trial cases if not everything is set for pretrial and
jury trial. You know, by --
MS. WILKE: They're setting them throughout the
month so that it's not all on one docket, but, you know,
somebody might get set for trial next month. But, you know,
there's some things that are set three, four months out down
the line.
MS. McCOWAN: Our judges don't put it on a trial
docket until it's really a trial case.
MR. BARYON: I think there's a lot of wisdom in
that.
MS. WILKE: That's what we had been doing, and it
wasn't working, so now we're trying this other way. Because,
you know, they request another pretrial, another pretrial,
another pretrial. So, you know, they're limited. Whereas
before they had, you know, like, maybe five pretrial settings
to show up for, now they've got one, and then it's set for
trial. So --
MR. BARYON: Is Judge Williams -- after the case
has finished its 28.01 hearing, then there's a gap. The guy
doesn't show up for court until the case goes to trial?
MS. WILKE: Until he's set for trial. The nice
thing about that is the attorney's not getting paid to come
sit in court and say, "Hey, we can't hash it out," and set
again and again. Seems like it's adding court days, and
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thereby attorney's fees.
MS. McCOWAN: Well, are the attorneys really good
about going to -- coming your office doing discovery?
MS. WILKE: Some of them are, not all of them. We
e-mail the discovery; that's not an issue. It's automatic.
We e-mail it the second we know about it.
MS. McCOWAN: So they get it whether they want it
I or not?
MS. WILKE: Yes. They get it, yes, so they don't
have to come to our office to get the discovery. The way
we've been doing the tapes, which I -- we may or may not
continue to do, is they get an order saying you go get your
own tape from the agency who produced it, so we don't have to
deal with them like that. So, if they want a tape, they go
get it. If they don't want it, then they don't get it, so
it's entirely up to them. So, as far as discovery, they get
it whether they want it or not. It's automatic from our
office, just a click of a button.
MS. McCOWAN: I tell you how I think our judges
have solved that issue of, you know, paying them by the
individual court date, is they don't. They pay what's
essentially almost a flat fee.
MS. WILKE: Okay.
MS. McCOWAN: For a criminal, if it's a plea --
MS. WILKE: And I think that's a great idea, flat
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MS. McCOWAN: You know, if it's a complicated plea,
or goes right up to trial and then plead, then they're going
to get -- you know, the Judge has discretion to award them
more if it's a trial or a different --
MS. WILKE: I think it would work with that -- with
a flat fee. Otherwise, we're going --
MS. McCOWAN: If they get paid a certain amount
when they come to court no matter what it is, yeah, their
incentive is not to work it out.
MR. CURRY: In fact, I think that's an essential
part of this.
MS. WILKE: To make it work, is a flat fee.
MS. McCOWAN: That's not direct filing. That's a
judicial county --
MS. WILKE: Right.
MS. McCOWAN: -- decision. But --
COMMISSIONER BALDWIN: Would you mind -- we have --
all the Commissioners are in here, and we can spell "law"
between the four of us. Would you talk just a minute about
that -- what was the last issue we were just talking about?
MS. McCOWAN: The fees to the Court-appointed
counsel.
COMMISSIONER BALDWIN: Yeah, the set fee.
COMMISSIONER LETZ: Flat fee.
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COMMISSIONER BALDWIN: Flat fee, set fee. Could
you talk about that just a moment?
MS. McCOWAN: Now, I don't know where that comes
from exactly, whether it's the judges who make that
determination, but I know that all -- lots of different
counties do it differently. And in Williamson County,
someone with authority agreed that a felony plea would be
worth a particular amount of money. I don't know what the
amount of money is. I suspect it's somewhere between $300
and $500. I could be wrong. So, if they get appointed to a
felony case and they make a couple of the court appearances
and then they plead it, they're probably going to get that
amount of money. If they make -- you know, if they have to
do a whole lot more than what the normal situation is, the
Judge has the authority and the ability to take that into
discretion and award them some additional fees. And then,
clearly, a trial fee is different than that, too. But, you
know, 95 to 98 percent of the cases are done through a plea
or a letter to the County Attorney or something like that,
and when they're disposed of, they get that flat fee.
MS. WILKE: So, does Williamson County have a flat
fee? Is that how the attorneys get paid?
MS. McCOWAN: I think -- I'd be lying if I said
yes, absolutely. It's not -- I don't know if there's a
schedule or just sort of an unwritten agreement among the
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judges. The judges have the discretion on the amount to
award, and some of them are very conservative with the
State's money. But -- but they're the ones who sign off on
the vouchers and write in the amount, and it's my
understanding that it's a particular amount for most cases,
unless there's something special about them.
MS. WILKE: But some counties actually have a -- a
schedule where, you know, a state jail felony plea, you get
this much; first-degree felony plea, you get this much;
trial, you get this much?
MS. McCOWAN: Yeah. I don't see a problem with
that.
MR. McCULLOUCH: But are you saying that y'all are
able to dispose of up to 98 percent of your felony cases with
just kind of a -- using this direct file, flat-fee type --
MS. McCOWAN: I'm not saying that direct file does
that. Most felony cases are disposed of without a trial.
MR. McCULLOUCH: Right.
MS. McCOWAN: So, whether it's -- it ultimately
ends up being a plea of guilty or an agreed plea to a
misdemeanor where we've sent it to the County Attorney's
office, or a dismissal, or a no-bill, if they've been
appointed, they're going to get paid, you know, something for
that case. And the judges are the ones who decide, and it's
my understanding they're sort of -- I never was a defense
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lawyer in Williamson County, so I don't know what the amount
is.
JUDGE TINLEY: What I did hear from you, if I
understood you correctly, was on felony cases, the
direct-file system has allowed you to dispose of
approximately -- it kind of leveled out at one-third?
MS. McCOWAN: One-third.
JUDGE TINLEY: Of those cases, pre-indictment.
MS. McCOWAN: Before indictment. It's reduced the
load on our grand juries. We've been able to reduce the --
we used to meet seven times every three months. Now we
dropped back to six, 'cause we don't need them that extra
day. They don't hear as many cases on a day, because, you
know, if they're willing to plead guilty, there's no reason
to present it to the grand jury just to file a different
charge. Are there other questions? I obviously have a bias
in favor of this system because I helped, you know, design it
for Williamson County, but I think it can be modified to fit
just about any situation, with the idea that you have to look
at this and eliminate where the delays are in your own
personal system. And so, you know, my three key components
are early screening, filing direct so you have a file open,
and then pre-indictment court dates. But it can be modified
in, frankly, any way you want.
MS. WILKE: Jana, something we talked about back at
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the office is jurisdiction of a District Court to summon
somebody that has not been indicted. That's kind of an
up-in-the-air issue, but never been brought up. You say it's
been done since the '70's in Houston, but --
MS. McCOWAN: Right. We looked at that, because we
were worried the somebody might say, "Well, I still want to
go to the Municipal Court Judge for this." But, you know,
what the reality of it is, is I don't think there's any law
that specifically says that it's only upon indictment that
jurisdiction transfers, because a District Court has original
jurisdiction of a felony case. And, you know, they're not
going to have the District Judge mad at them because they
went to the J.P. to get something they knew the District
Judge wasn't going to give them. So, we've not had any
lawyers say, "No, you can't do that yet. You have to be
indicted before the District Judge can do anything."
MS. WILKE: And in Williamson County, how -- do you
have magistrates all day long magistrating people, or do they
just come in in the morning and magistrate people? That's --
MS. McCOWAN: I think it takes them most of the day
because of the misdemeanor cases. We're usually in and out
of there within 30 to 45 minutes in the mornings, unless it's
a heavy day for felonies. But the magistrates there, you
know 8:00 to 5:00-ish, and on weekends also, same day. We
I have two of them.
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SHERIFF HIERHOLZER: That's a regular magistrate's
office, right? It's not rotating through different --
MS. McCOWAN: Right, it's one that our judges
established by agreement. I understand the J.P.'s, I think,
do a rotation. Same -- same result, just different people
doing it.
SHERIFF HIERHOLZER: And different hours. Not just
an hour in the morning.
MS. McCOWAN: Right.
MS. UECKER: Jana, I'm wondering -- and I don't
know. Right now we have two separate grand jury -- each
court has a grand jury every month. And I'm wondering -- no
rock throwing, okay? -- if maybe we might not be better
serving the system by going to a one grand jury system.
Because the cases basically -- most of them are already going
to be assigned anyway.
MS. McCOWAN: You know, I don't want to dictate
what -- what the County Attorneys are going to be doing.
That's the sort of decision that comes from within the
county. I mean, your judges can do it any way they want.
MS. WILKE: So, what are you saying? Have one
grand jury that serves 198th and 216th instead of two
separate?
MS. UECKER: Yeah.
MS. McCOWAN: Basically, you would have a 198th
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grand jury that lasts for a certain period of time, and then
a 216th grand jury. But it doesn't matter; they can hear any
case that's --
MS. WILKE: Right.
MS. McCOWAN: -- brought before them.
MS. WILKE: Right.
MS. UECKER: Right.
MS. WILKE: So -- yeah. So, the 216th grand jury
could indict a 198th case.
MS. McCOWAN: Yes.
MS. UECKER: 'Cause it would have already been
assigned anyway. So the case is already assigned anyway,
unless it pled.
MS. WILKE: Be one grand jury for both.
MR. BARYON: It seems like the need for that is
decreased when you have somebody on the pre-indictment
docket, 'cause their case is already churning along, and the
indictment is not as important a triggering event --
MS. McCOWAN: Right.
MR. BARYON: -- under the direct-file system.
MS. McCOWAN: Right.
MR. BARYON: So, the necessity to get a case in to
a grand jury isn't as -- as great as it is now, because right
now, we can't initiate a case until it's really in the grand
jury, except for what we're doing out at the jail. So --
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MS. UECKER: Well, that's for the 30 percent now.
Then you have the other 60 percent --
MS. McCOWAN: Well, the other 60 percent, they're
floating along and their cases are being shortened in the
long run by doing it closer to arrest. It's just -- arrest
is the triggering event, not indictment.
MS. WILKE: Jana, I had another question. You said
this helps you screen cases. For example, the case that you
mentioned, I mean, clearly, just by looking at a P.C.
affidavit, you would know that that's not a felony. But
there's other cases, like the hydrocodone case and other
cases like that, that you really need to read the offense
report before, so you can't make that decision in 30 minutes.
MS. McCOWAN: No, but our magistrate can hold over
that defendant and not magistrate them until we've decided
whether or not we're going to accept the charges. And so I
can take that file back to my office and contact somebody
from the law enforcement agency and say, "Hey, what's going
on here? Tell me more about it." And we frequently do that,
you know, probably once or twice a week. Whoever's handling
that part, you know, bring something back to ask further
questions before they make that decision. And we just fax
over to the magistrate's office that little sheet that says,
"I accept charges," or "I decline." Or refer them --
MS. WILKE: So, do you have a prosecutor that works
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just on that? Because now that you go to the jail, you said,
and then you come back, and you may have to make some phone
MS. McCOWAN: We have three intake attorneys in our
office, one for each court -- one for each district court.
They're assigned to the court. They handle the state jail
felony docket themselves, and they screen all cases that come
through the courts to make sure preliminary stuff is in
there, so they're the ones that go to the magistrate's office
and do that initial screening. It really doesn't take that
long. We're talking about, you know, three or four cases on
any given day, 10 to 15 on a heavy day -- a Monday, or
sometimes Fridays, the new Monday, or following a three-day
weekend there might be, you know, 15, 20 cases.
MR. BARYON: So, the person -- the prosecutors that
are responsible for your state jail docket are also doing the
screening for all cases?
MS. McCOWAN: Yes.
MR. BARYON: That's great.
MS. WILKE: For the sake of curiosity, how many
prosecutors do you have in your office?
MS. McCOWAN: Thirteen, counting the elected D.A.
Nine of those people are assigned to the district courts.
MS. WILKE: And those nine are the same as are
going out to look at the P.C. affidavits?
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MS. McCOWAN: No, just three of those.
MS. WILKE: Just three, okay.
MS. McCOWAN: One for each court. And then me; I
take a rotation, just because that way I can sort of keep my
finger on what's coming in. Thank you all so much for having
I me.
MS. WILKE: Thank you.
JUDGE TINLEY: Thank you. I apologize for the
interruption. We do our workshops where we get everything on
the record.
MS. McCOWAN: I know. That's all right.
JUDGE TINLEY: Thank you. Anybody else have
anything to offer in connection with the workshop that's
posted? The workshop will be adjourned.
(Workshop was adjourned at 11:15 a.m.)
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~ STATE OF TEXAS ~
COUNTY OF KERR ~
The above and foregoing is a true and complete
transcription of my stenotype notes taken in my capacity as
County Clerk of the Commissioners Court of Kerr County,
Texas, at the time and place heretofore set forth.
DATED at Kerrville, Texas, this 5th day of May, 2009.
JANNETT PIEPER, Kerr County Clerk
BY • ____ ~~u~ ________ _
Kathy B ik, Deputy County Clerk
Certified Shorthand Reporter
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