Getting Magistration Right

When an arrested person first appears in a Texas court, local policies determine whether a lawyer will be there to defend them or they will face the court alone.

In some counties, courts routinely appoint a lawyer to represent any arrested person who cannot afford a defense attorney.  Elsewhere, misdemeanor courts convict thousands of people each year who never had a lawyer’s help. The Deason Center’s research exposes this justice-by-geography.

The Sixth Amendment to the United States Constitution guarantees a defense attorney for any arrested person who faces the risk of incarceration and cannot afford to hire a private lawyer. But Texas counties use different procedures to provide the Sixth Amendment right to counsel. 

Studying four Texas counties that used very different procedures for appointing counsel, the Deason Center reviewed thousands of misdemeanor case files. The Center’s analysis highlights how differences in local policy correspond to the frequency with which people navigate the criminal courts unrepresented. 

Explore our Findings

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, to release a person from jail.

 

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

Representation rates in misdemeanor courts vary dramatically across Texas’ 254 counties. In some counties, judges appoint counsel for almost every arrested person who requests it. Elsewhere, no one has 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. This means 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. 

Each Texas county makes its own decisions about how an accused person requests and obtains appointed counsel. For example, 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 and which officials have the power to actually make that appointment. In some places, these officials are different—officials who decide that a person is eligible for appointed counsel lack the authority to deliver on the Constitution’s promise. 

Local policies also determine how quickly a person can apply for counsel and how long they must wait for a decision. In some counties, arrested people can apply for counsel before they even see a judge at magistration. In other counties, magistration judges collect applications, determine eligibility, and appoint counsel during the first court appearance. Elsewhere, judges at magistration collect applications for counsel but must send them to other county officials for a decision. In those places, critical right-to-counsel decisions happen long after magistration is over.

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 prepare a defense. The earlier an arrested person has an attorney, the earlier the attorney can investigate the charges, collect critical evidence before it disappears, and interview witnesses before their memories fade.

Prompt investigation allows defense attorneys to provide important information to prosecutors and judges. Without that information, judges lack crucial context for release decisions, and prosecutors lack principled reasons for offering plea bargains or entering dismissals.

For some people, months or years can elapse between their magistration and the prosecution’s presentation of formal charges. In Texas, this in-court presentation of the charges is called an arraignment, and it is an arrested person’s first opportunity to enter a “not guilty” plea. Arraignment offers another opportunity for people to apply for appointed counsel. But by then it may be too late. While the prosecution has spent its time investigating the case and determining which charges to pursue, an unrepresented arrested has few, if any, opportunities to fight back. Thus these long delays without a defense attorney may prevent them from mounting a meaningful defense.

The Deason Center studied over 2,000 misdemeanor case files in four diverse Texas counties, anonymized here as Bluebonnet, Cactus, Longhorn, and Tumbleweed. An exhaustive review of those documents allowed researchers to see appointment of counsel patterns in each place.

The Center also reviewed local indigent defense plans, interviewed court personnel, and observed magistration and arraignment proceedings. Researchers documented how and when officials in each county made applications for appointed counsel available, and how officials made decisions on those applications.

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

 

 

Project Details

In a pioneering research study, the Deason Center reviewed more than 2,000 misdemeanor case files, interviewed court personnel, and observed court proceedings. The researchers investigated each county’s appointment processes. They concluded that differences in local appointment procedures could account for variations in the frequency and the timeliness of applications and appointments.

 

 


Explore the Data

To better understand the relationship between local procedures and local representation rates, the Deason Center studied misdemeanor cases in four diverse Texas counties, anonymized here as Cactus, Longhorn, Tumbleweed, and Bluebonnet.  Representation rates these counties varied significantly, and each county used a different procedure to appoint counsel.

 

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Our Experts

Dr. Andrew Davies

Research Director
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Malia Brink

Policy Director
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Pamela Metzger

Executive Director

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Acknowledgment

The Deason Center team gratefully acknowledges the invaluable assistance of dozens of Texas criminal justice officials and staff. To protect the anonymity of the counties where they work, the Center cannot publish the names of these extraordinary public servants. However, their contributions were essential to the project’s success. Without their commitment, the Center’s work would not have been possible. 

The Center thanks Shelby Sirivore for her invaluable work collecting the data and preparing the visualizations featured on these pages.

This work is part of the Non-Representation Project and was supported by Arnold Ventures. The views expressed herein are the authors’ and may not reflect the opinions of Arnold Ventures.