With their county attorney’s office under intense scrutiny, Texas Attorney General Ken Paxton has issued an opinion putting a halt to a program in Brown County that some say was turning pre-trial diversion fees into bribes. Unfortunately, it is a problem that may be occurring in county and district attorney offices throughout the state.
Jennifer Robison, the auditor for Brown County, requested an opinion from Paxton regarding the legality of their county attorney’s pretrial diversion program and the fees he assesses, which have been likened to more of a bribery scheme than an operational fee schedule.
Article 102.0121 of the Texas Code of Criminal Procedure requires, “[pretrial diversion funds] to be used only for reimbursing costs associated with administering of the pretrial diversion program.” Pretrial diversion is similar to probation, except it allows a defendant to avoid the charge, and the terms of the agreement must be agreed upon by the prosecutor.
According to a letter included in the opinion request, since 2007’s passage of HB 1930 by State Rep. Jim Keffer, which exempted Brown County from the law prohibiting county attorney’s from receiving gifts, the county has been taking “donations” from misdemeanor defendants who choose to partake in its pretrial diversion program. Brown County Attorney Shane Britton praised the bill, saying, “we were very upfront about our desire to use [the] legislation to create a pretrial diversion program that required the defendant to make a donation to our office.”
The Texas Observer found that in the past eight years, Brown County defendants have paid a combined $250,000 into the pretrial diversion program to cover office expenses for County Attorney Shane Britton on everything from travel to High School calendar advertisements.
Prosecutors are allowed to collect fines up to $500 to reimburse a county for expenses, including those incurred for a defendant’s participation in a pretrial intervention program. “These fees collected under that article were required to be deposited into the county treasury in a special fund to be used solely to administer the pretrial intervention program.”
Robison’s letter describes how Judge Frank Griffin began to question the process as it was being administered by Britton. “It appears that Judge Frank Griffin was so concerned with the legality of these matters that he stated he did not intend to sign any more orders.”
Despite the judge refusing to sign pretrial diversion orders, Britton began diverting cases regardless. Britton would allegedly enter into pretrial diversion agreements and have the Brown County Supervision and Corrections Department collect and distribute fees even though there was no court order requiring defendants to participate.
In one instance referenced in the letter, Britton filed a theft charge (of less than $20) against a defendant who entered a plea of “No Contest” and was fined $150.00. After requesting deferred adjudication, or a plea deal, the fine increased to $250.00. After not receiving payment or notification from the defendant for months, the court increased the fine to $769.60, turned it over to a collection agency, and placed a block on the defendant’s driver’s license.
Months later, the collection agency discovered that the defendant had contacted Britton’s office months earlier to determine the amount of the fine and was told to send two individual money orders of $250.00 and $108.00 to the attorney’s office, not the court clerk.
Upon learning of the situation, the court contacted Britton who confirmed the transaction, gave no explanation of why the court wasn’t alerted, and attempted to have an administrative assistant deliver $250.00 in cash to the court clerk.
The clerk refused the cash without a documented explanation for both the delay and the reason that the money orders were cashed instead of left in their original form.
Britton himself then took the cash to the Justice of the Peace who presided over the case and tried to convince him to take it to resolve the matter. He too refused. The JOP sent an official letter to the county attorney’s office stating that he refused the money and did not receive an explanation for why the money orders were cashed or why there had been a second money order of $108.
In her letter to Paxton, Robison claimed that Britton had requested monthly transfers from the diversion account, which is overseen by the auditor and commissioners court, to the hot check account, which has no oversight outside of the county attorney’s office.
“I do not feel I will be doing my job as the Brown County Auditor if I just ‘rubber stamp’ the county attorney’s request for monthly transfer of sums out of the county attorney donation account into his hot check account,” Robison wrote in the letter.
In his opinion, Paxton agreed that the funds could not be “comingled or transferred.”
Brown County is currently conducting a forensic audit into the hot check, seizure, donation, and diversion accounts of the county attorney.
Allowing county attorneys with prosecutorial discretion the ability to move money from account to account can create a dangerous reliance on defendant fees. County attorneys can feel pressure to bring in revenue to fund salaries, and that can interfere with their judgement in pursuing justice and begin to make the fees look a lot like bribes.
Much akin to the problems with civil asset forfeiture, allowing county attorneys to directly receive pre-trial diversion fees can create a perverse incentive to increase misdemeanor arrests and to divert cases not when it is in the defendant’s best interest, but when it is in the best interest of the county budget. Paxton’s opinion should put a halt to the problem in Brown County, but lawmakers should take a hard look at this issue during the legislative session.