‘Somebody dropped the ball’: Sakai says he was blindsided by fee increase for indigent defense

SAN ANTONIO – Members of the San Antonio Criminal Defense Lawyers Association attending a seminar during Fiesta were among the first people to hear the good news: county court judges had days earlier approved a fee increase for misdemeanor indigent defense cases.

The announcement at the event from an employee of Bexar County’s Managed Assigned Counsel was met with cheers and applause from the crowd.

The pay increase for private attorneys who represent defendants who cannot otherwise afford legal counsel was long overdue, multiple county officials and defense attorneys told KSAT Investigates.

The revamped fee schedule, which went into effect May 1 and does not require the approval of the commissioners court, raised the rate from $180 to $300 per case and now allows for the itemization of certain services provided by attorneys, including initial jail visits and bond hearings.

Attorneys can also opt to be paid an hourly rate instead of a flat fee for complex misdemeanor cases of DWI and family violence.

“I haven’t been given any data.”

But the misdemeanor fee increase, which officials project will cost Bexar County around $30 million over the next five years, has not been met with universal praise, internal county records obtained by KSAT Investigates show.

Bexar County Judge Peter Sakai was not informed of the fee increase until after it had been approved by the county court judges, emails obtained through a public records request show.

“This is the first to get notice of a pay increase for court appointed attorneys. I want an immediate assessment of this request. I will be coming into the office after lunch,” Judge Sakai wrote on April 19.

May 1, in a strongly worded email to Judge Melissa Vara, administrative judge for the misdemeanor courts, Judge Sakai objected to the fee increase.

“The essence of an abuse of discretion is a decision made in a vacuum, without resort to guiding principles of law or fact,” wrote Judge Sakai.

“I haven’t been given any data. I haven’t been given any analytics. I have been given no metrics,” Judge Sakai told KSAT during a recent interview. “Somebody dropped the ball and I gotta deal with it. I gotta figure out how to pay this.”

Judge Vara pushed back on the criticism in an email to KSAT, sharing a timeline of attempts to contact Judge Sakai’s office about the then-upcoming vote.

Records provided by Judge Vara show Judge Sakai’s executive assistant was twice contacted by email, on April 13 and April 17, requesting a meeting with the county judge to discuss the proposal and was sent a third email on April 18 with a pay study and the proposed fee schedule attached, alerting the county judge’s office to the April 19 vote.

“Although we remain mindful of budgetary concerns, our priority is to ensure the citizens of Bexar County have access to quality representation regardless of socioeconomic status. The revised fee schedule unanimously passed with the intention of increasing quality representation for the indigent individuals,” Judge Vara wrote in a written statement to KSAT.

“This was a crisis.”

The fee schedule increase was a major victory for Jim Bethke, executive director of Bexar County Managed Assigned Counsel.

Bexar County commissioners approved the creation of Managed Assigned Counsel (MAC) in October 2021.

The program is separate from the county’s public defender’s office.

MAC works with the private bar to provide services for indigent defendants, while attorneys in the public defender’s office are county employees who provide legal services.

The county pays around 88% of voucher fees for attorneys assigned through MAC, while the state provides a “modest” stipend to cover the remaining 12% or so, said Bethke.

“You’re able to use the private bar and you’re not growing government exponentially,” said Bethke.

The number of private attorneys willing to take on indigent defense cases in Bexar County dipped below 70 earlier this year, a nearly 80% decrease from pre-COVID levels, figures provided to KSAT show.

“This was a crisis,” said Bethke, who added that attorneys were being assigned as many as 11 indigent defense cases a week, on top of the workload they were already handling in their private practices.

Bethke, who formerly lead the Texas Indigent Defense Commission, said the need for a fee increase in Bexar County was brought up as far back as his interview for the MAC position in November 2021.

Bexar County, prior to the misdemeanor fee increase going into effect, ranked last out of Texas’ 254 counties in per capita spending on indigent defense, said Bethke.

Bethke, however, conceded that communication during the lead-up to the vote “probably could have been better.”

“I know going forward on something like that, and I’ve shared with the budget people, if I’m aware of it, especially something like this, which I was aware of, I’m going to do a better job communicating that,” said Bethke.

Bethke alluded to overhauling indigent defense pay during a MAC presentation before Judge Sakai and commissioners court on Jan. 24.

But a formal presentation on the project he was scheduled to make before the court six weeks later did not take place.

Bethke told KSAT a fee study took longer than expected to complete.

“As a result no presentation was given to the Commissioners Court on March 7. Once a fee schedule was adopted, I scheduled meetings with the Chief of Staff of each Commissioner Court and presented the recommendations and what was formally adopted by the County Criminal Court Judges. I was not able to get a meeting scheduled with Judge Sakai’s staff,” Bethke told KSAT via email.

The full impact of the new fee schedule will not be felt until the next fiscal year, since the increase took effect outside of the budget cycle.

Indigent defense fee increases for the county’s felony and children’s courts also went into effect on May 1.

These courts had already been raising their fee schedules incrementally, meaning the increases will not put as much strain on the county’s budget, officials said.

Judge Sakai told KSAT a more prudent approach would have been to make an emergency budget authorization to increase the number of public defenders working for the county.

“I have a right to have notice as county judge. And I wasn’t given notice about this fee increase,” said Judge Sakai.