While the Potter County Commissioners’ Court approved a resolution earlier this month, authorizing the submission of a grant application to the Texas Indigent Defense Commission (TIDC) to support the implementation of a public defender/managed assigned counsel program from Neighborhood Defender Service (NDS) for Potter and Armstrong Counties, Potter County Judge Nancy Tanner stated she plans on withdrawing the resolution this week, not seeing NDS as a good match for the county.
This comes after the court approved the submission of a notice of intent to apply for the TIDC grant in late March, according to previous reports from the Globe-News. The process began after the Sixth Amendment Center conducted a report surrounding Potter County’s indigent defense system, stating it found issues with clients having access to counsel as well as excessive workloads by attorneys, supervision and oversight issues and organizational independence issues.
NDS officials presented a “tailor-made” program for the needs of Potter County, focused on the needs raised by the Sixth Amendment Center’s report. NDS currently has offices in New York, Michigan and California.
In the passed resolution, Tad Fowler, an attorney with Potter County, said it authorizes Tanner to withdraw or modify the grant application, not needing a vote from the overall court to withdraw the grant.
“Today, it’s just been in my gut and on my heart to do something about this before it got so far gone,” Tanner told the Globe-News after Monday’s meeting. “I just don’t want NDS here. I will more than likely go ahead and make that decision to withdraw our resolution at some point today or some time this week … There’s no hard feelings. I just don’t think it’s a good fit … Their ideas are different from ours here in Texas and it’s … apples and oranges.”
During previous meetings of the Commissioners’ Court, members of the court have raised concerns about the NDS program being new to the state, how much the program costs as well as the unclear nature of how it would work with counties outside of Potter and Armstrong counties.
Further concerns were raised after county officials discussed NDS’ Police Accountability / Community Empowerment, or PACE, program. According to the NDS website, this program “helps individuals and communities alike secure their futures by addressing the police misconduct that marginalizes them, providing them with resources and working alongside them to reshape policy in ways that reverberate across generations.” This includes the filing of impact litigation, closing the racial wealth gap, disrupting the school-to-prison pipeline and driving policy to empower communities.
What Potter County was concerned about regarding the PACE program was its potential to cause the county to pay NDS money, and the organization using those funds to underwrite a lawsuit against a law enforcement agency in the county.
However, officials from NDS stressed that the PACE program would not impact Potter County, stating it would be a separate source of revenue, not using any dollars from the county or from TIDC.
During Monday’s meeting, Tanner also brought up another concern, with officials from NDS bringing up the potential of “scorched earth litigation,” a term which did not sit well with her.
“I wasn’t sure what that meant exactly, so I looked it up. Scorched earth litigation means that they would destroy everything in sight, anything that was useful to the prosecutors,” she said. “Does that sound like something that we do here in Texas? I just don’t think so.”
Tanner referred to the Texas Lawyers’ Creed, which Fowler stated dealt with the idea of scorched earth litigation directly. The creed reads “The Supreme Court of Texas and the Court of Criminal Appeals are committed to eliminating a practice in our State by a minority of lawyers of abusive tactics which have surfaced in many parts of our country,” ranging from “lack of civility to outright hostility and obstructionism.”
Precinct four commissioner Alphonso Vaughn continued to vouch for NDS and the organization’s “impeccable record” during the meeting. He said he did not understand the focus on the scorched earth litigation, stating that any attorney would do anything they could, in an ethical manner, to represent their clients.
“You may say something off the cuff, but does that define the true profession of that person?” he said. “When you look at their history, their past work … you don’t see that. You don’t see that at all.”
The court also circled back on the conversation surrounding the PACE program, subsequently showing what precinct two commissioner Mercy Murguia called exposing the “interdependence of our political and judicial branches.”
Murguia spoke about the letters court members received from law enforcement officials about their concerns with the PACE program. She said she has no concerns or reservations about individuals looking into the law enforcement programs, stating she trusts the work they are doing.
“Without anybody doing research, what the PACE program, what sits behind that, is Black Lives Matter,” she said. “That’s the word that everyone seems to be afraid of.”
H.R. Kelly, precinct one commissioner, said during the meeting he does not trust NDS and their programs as a whole, stressing that there needs to be another way to deal with the county’s indigent defense issue.
Like he did in previous meetings, precinct three commissioner John Coffee expressed his reservations, stating he does not feel NDS is the best fit for the county. He said he talked with officials in offices affected by this decision, stating the majority of those individuals were against the NDS program.
“I know this thing has been going on a long time, and I know that everybody is tired of talking about it and frustrated by it,” he said. “I asked from the onset if we couldn’t have another way, if we couldn’t have another option … We need to make the best decision for this county and as I said, talking to everyone that I talked to, my decision has been made. I don’t support NDS moving forward with Potter County, period.”
In the meeting, Vaughn stressed that the county looked for the right program for a number of years. If the county fails to act, and does not have a specific plan B in place, he believes it does not put the county in a good position surrounding its indigent defense system.
“We are in a crisis time, as far as having lawyers to represent their clients in an indigent manner,” he said. “It puts us in an area where we had a shot, we turned it down, and now we will have at least another year.”
But even after the numerous conversations county officials and leadership had with NDS, Tanner said her feelings have not changed.
“I have a gut feeling that it is just not going to work. It is not going to be a good fit, even though they did come to Amarillo and talk with some of us,” Tanner said during the meeting. “After I read some of this and looked at some of the stuff they were talking about, I think that we need to withdraw the application. We can actually wait a year and try this again.”
Even with the NDS option not being on the table, Tanner stressed the problem of court-appointed attorneys within the county is still there, decreasing from 60 plus to 12 attorneys currently being on this list.
“This is serious. We have to do something to fix this,” she said.
Tanner said county officials are meeting with the TIDC this week, continuing the conversation surrounding what the county plans on doing for its indigent defense program.
The Amarillo Globe-News reached out to NDS for comment and in an email response, officials with the organization stated they had no comment at this time.
90-day burn ban
During the meeting, the court also unanimously approved a 90-day burn ban for Potter County, beginning May 10. Richard Lake, the county’s fire chief, said while there is some spotted rainfall, there are still many dry places throughout Potter County.
“Right now, what I am seeing is that we are entering thunderstorm season,” he said. “If we don’t get significant rainfall, we get lightning, and we’ve had a lot of areas throughout the county that are still patchy, that are real dry, that have the potential for significant fires.”
These kinds of orders prohibit outdoor fires in the county, according to a previous burn ban order on the Potter County website. The previous order stated that “persistent dry and windy weather conditions in Potter County are such that outdoor burning in unincorporated areas of the county would present a public hazard.” The previous ban ended Feb. 17, 2021.
This current burn ban order, approved during Monday’s meeting, is set to expire in early August.
The next meeting of the Potter County Commissioners’ Court is scheduled for May 24. For more information about the county, visit https://www.co.potter.tx.us/page/potter.Home.
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