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In Texas, an arrested person’s initial appearance before a judge is called magistration. At magistration, a judge must inform an arrested person of the charges against them and advise them of their constitutional rights—including the right to counsel.  The judge must also determine whether, and under what conditions, an arrested person will be released from jail. 

 

Texas magistration procedures are supposed to help arrested people obtain court-appointed representation if they cannot afford to hire a private defense attorney. But counties use a wide variety of such procedures. Predictably, their appointment rates also vary widely.

Representation rates in misdemeanor courts vary dramatically across Texas’ 254 counties. At magistration in some counties, judges appoint counsel for almost all arrested people who request it. Elsewhere, no one leaves magistration with a lawyer to defend them.

How long a person must wait for a lawyer also varies widely. Some courts appoint counsel at an arrested person’s magistration. Other courts only appoint counsel much later in the misdemeanor process, meaning that some arrested people wait for months (or years) to meet with a lawyer. 

These delays make it impossible for a defense lawyer to fulfill their constitutional mission. The passage of time may make it impossible to locate important witnesses or gather what would have been essential evidence. 

In Texas, each county decides what financial circumstances make a person eligible for appointed counsel services. 

Each county also decides which officials have the power to determine a person’s eligibility for appointment of counsel. In some places, the officials who decide which defendants are financially eligible for appointed counsel are different from the officials who have the power actually to appoint lawyers.

In some counties, people apply for counsel before they ever see a judge at magistration. In other counties, magistration judges collect applications, determine eligibility, and appoint counsel during that first court appearance. Elsewhere, judges collect applications but pass them on to other county officials for them to make decisions after magistration is over. 

These policy choices have clear consequences for how promptly applications for counsel are offered, completed, submitted, reviewed, and ruled upon. 

Learn more about eligibility for appointed counsel in our report, Getting Gideon Right

Having a lawyer at magistration can determine the outcome of a person’s case. A lawyer can challenge the person’s arrest, argue for their release, and begin to defend their case. The earlier an arrested person has an attorney, the earlier the attorney can investigate the charges, collecting critical evidence before it disappears and interviewing witnesses before their memories fade. In short, every arrested person should have a lawyer at magistration.

Prompt defense investigation also generates crucial information for prosecutors and judges to properly perform their functions. Without it, judges lack crucial context for release decisions, and prosecutors are deprived of material that could support fair plea offers or dismissals.

After magistration, months or years can elapse before the next appearance in the case, which is usually an arraignment. Arraignment offers another opportunity for people to apply for appointed counsel. But by arraignment, the defendant may have spent considerable time incarcerated, and the prosecution will already have determined which charges they intend to pursue. This lost time means the prosecution and the defendant are left with fewer options for resolving the case.

The Deason Center conducted an exhaustive study of documents filed in over 2,000 misdemeanor cases in four diverse Texas counties, anonymized here as Bluebonnet, Cactus, Longhorn, and Tumbleweed. Those documents allowed researchers to see patterns in whether and when counsel was appointed to defendants in each place.

The Center also interviewed court personnel and observed magistration and arraignment proceedings in the four counties. Researchers documented how and when officials in each county made applications for appointed counsel available, and how officials made decisions on appointment of lawyers in response to those applications. 

The Center’s examination revealed profound relationships between procedures for applying for appointed counsel, the numbers of people receiving appointed counsel, and the promptness of those appointments.