Comal County Magistrate Court
Magistrate Court is where defendants in criminal cases first appear soon after they are arrested. The Magistrate Judge will review the charges to determine whether or not there is probable cause for the arrest and detention of the defendant. The Magistrate Judge will inform defendants of their charges, their legal rights, decide whether or not to set bail, consider whether personal bond is appropriate, issue an Order Setting the Bail amount, issue an Order of Conditions of Release on Bond, and facilitate or make the appointment of an attorney to represent the Defendant, if appropriate.
Magistration will include defendants charged with misdemeanors as well as felony offenses. Bail is the money or property pledged to the court directly or indirectly through the services of a surety or bail bond company as a guarantee that a defendant who is released from jail will return and appear for their court hearings.
Sometimes Magistrate Court is the only court where someone who is charged with a traffic violation or other class C misdemeanor offense will appear and may receive information about how to request the Justice or Municipal court to consider and grant credit for time served.
Magistrate Court is scheduled to be held every day, even on holidays. At Magistration, the Magistrate Judge will not ask for or receive a plea on the charged offense(s). Such pleas may only be received in the Court when and where the defendant’s case is filed by the prosecutor. The District Court or County Court-at-Law are the Courts where a defendant will enter a plea to the crime with which they are charged.
Comal County Magistrate Judges are appointed by the Board of Judges of Comal County pursuant to Tex. Govt. Code Chap. 54 Subchap. Y as authorized by the Commissioners Court and pursuant to the Standing Administrative Order of the appointing Court.
Contact With The Court:
"A Judge...shall not directly or indirectly initiate, permit, nor consider ex parte or other private communications concerning the merits of a pending or impending judicial proceeding. A Judge shall require compliance with this subsection by court personnel subject to his or her direction and control... " Judicial Code of Conduct Cannon 3 Section A(5)
GENERAL MAGISTRATE FUNCTIONS AND DUTIES:
The Magistrate Judge has the following General Functions and Duties and as more particularly set out in the section on Magistrates Responsibilities in in the Indigent Defense Commission Plans on file for Comal County. See the following link: http://tidc.tamu.edu/IDPlan/ViewPlan.aspx?PlanID=551
- Determine probable cause.
- Inform Defendant of charges.
- Set amount of bail according to law consider criminal history and the Public Safety Report System.
- Advise Defendant of legal rights
- Provide indigency affidavit application and determine if appointed counsel is appropriate.
- Issue appropriate bond condition orders.
- Consider if personal bond is appropriate.
- Adjust, modify, revoke and enforce bonds and bond conditions.
- Appoint counsel for indigent defendants in misdemeanor cases (and felony cases as authorized by the District Courts).
- Enter data in the Public Safety Report System and deliver appropriate copies.
The Damon Allen Act of 2021 mandates that Magistrate Judges use the statewide Public Safety Report System as developed by the Texas Office of Court Administration, which enables a review of the defendant’s criminal history as part of the safety risk assessment in setting bail. The PSRS system also generates summary reports of the magistration setting bail and includes bond conditions and warnings to be provided to the defendant magistrated. (See C.C.P. Art. 17.021 CODE OF CRIMINAL PROCEDURE CHAPTER 17. BAIL (texas.gov)).
If a defendant wishes to request appointed counsel prior to the initial appearance, the forms required to request appointed counsel may be obtained at the Texas Indigent Defense Commission's website at http://tidc.tamu.edu/public.net/ or from the Magistrate here. The defendant may submit these forms to the Magistrate. The court will rule on all requests for appointed counsel submitted in this manner.
SPECIAL MAGISTRATE FUNCTIONS AND DUTIES:
The Magistrate Judge also has the following Special Functions and Duties:
- Magistrate’s Orders of Emergency Protection.
- Referral to Comal County Specialty Courts and programs:
- Veterans Treatment Court https://www.co.comal.tx.us/VTC.htm
- DWI Accountability Court https://www.co.comal.tx.us/CCLaw/AccountabilityCourt.htm
- Mental Health Court https://www.co.comal.tx.us/CCLaw/Mental_Health_Court.htm
- Felony Drug Challenge Court https://www.co.comal.tx.us/DCT.htm
- Search and arrest warrants
- Mental health (16.22) examination orders and release-placement orders.
- Bond compliance reviews, conferences and hearings.
- Surety surrender warrant or capias orders
- Examining trials, Bond modifications and Writs of habeas corpus hearings.
- Emergency mental commitments and special care including inmate medication orders.
- Emergency release or detention orders.
- Conducts periodic reviews of the jail inmate census with the Sheriff, and to the extent authorized by this subchapter (T.G.C. 54 (Y)) and the standing orders, a magistrate has jurisdiction to exercise the authority granted by the judges of the district or statutory county court.
A "bail bond" is a written agreement entered into by the defendant and the defendant's sureties for the appearance of the principal therein before a court or magistrate to answer a criminal accusation; provided, however, that the defendant on execution of the bail bond may deposit with the Sheriff as custodian of funds of the court in which the prosecution is pending, U.S. currency or money in the amount of the bond in lieu of having sureties signing the same. Any cash funds deposited under in this way shall be receipted by the officer receiving the funds and, on order of the court or magistrate, be refunded in the amount shown on the face of the receipt less the administrative fee authorized by Section 117.055, Local Government Code, if applicable, after the defendant complies with the conditions of the defendant's bond, to:
- any person in the name of whom a receipt was issued, including the defendant if a receipt was issued to the defendant; or;
- the defendant, if no other person is able to produce a receipt for the funds.
Texas law does not permit a Magistrate Judge to issue an order for a ‘split bond’; such as partly in cash and partly in surety, or partly personal and partly surety or cash. (AG Opinion JC-0215).
Conditions OF RELEASE ON BOND:
In most cases, Comal County Magistrate Judges issue an Order of Standard Conditions of Release on Bond at the time of Magistration. These conditions may include a requirement to report to the Comal County Community Supervision Department, or to report to the Hill Country Mental Health Development Disability Center, or to report to a specialty court. Sometimes additional special conditions are ordered, as may be appropriate. An example is a Special Condition Order for Installation of an Ignition Interlock Device issued in a subsequent DWI case.
Occasionally, as appropriate, the Magistrate Judge will modify or conduct hearings to review and consider modification of bond amounts or conditions of release on bond. Occasionally, the Magistrate Judge will enforce the condition order and order the revocation of bond and the issuance of a capias warrant for the arrest of the defendant, particularly when the Defendant has failed to substantially comply with the conditions as previously ordered.
During times of a declared emergency, the Governor has the power and the authority to suspend certain provisions of the Code of Criminal Procedure including sections dealing with a defendant's release on bond. (Gov. Abbott Executive Order GA 2019 EO13).
In Texas, there are three types of orders of protection based on family violence:
- Temporary ex parte protective orders which usually last for 20 days and are issued under provisions of the Texas Family Code Chap 83;
- Final (permanent) protective orders which can last as long as 2 years and are issued under the provisions of Texas Family Code Chap. 85; and
- Magistrate’s order of emergency protection which can last up to 61 days (or extended to 91 days) and is issued under the provisions of the Texas Code of Criminal Procedure Art. 17.292. (What most people call an emergency protective order).
The first two orders are issued by a civil or family court upon application. The alleged abuser does not have to be arrested for such an order to be issued. The third order is issued by a Magistrate Judge after the defendant is arrested.
If a person is arrested and charged with a type of family violence assault, sometimes it may be appropriate to consider obtaining a Magistrate’s Order of Emergency Protection. Usually applications for such protective orders are filed by the arresting or investigating officer, but may also be filed by the victim, or both. Typically the Magistrate will consider the MOEP application at the time of magistration of the defendant.
What is a Protective Order?
- It is a court order that protects you from someone who has been violent or threatened to be violent. Violence can include sexual assault.
How can a Protective Order help me?
It can order the other person to:
- Not hurt you or threaten to hurt you
- Not contact you or go near you, your children, other family relatives, your pets, your home, where you work, or your children’s schools
- Not have a gun or a license to carry a gun
The police can arrest the other person for violating any of these orders. Read more here.
How can I get a Protective Order?
FILING MOTIONS AND SETTING HEARINGS:
Prior to a defendant being indicted for a felony offense or an information or complaint being filed for a misdemeanor offense the cases are considered to be in a ‘pre-file’ status, and the Magistrate Court has jurisdiction of all such cases and matters. Every pleading, plea, motion, or application to the Magistrate Court for an order, whether in the form of a motion, plea, or other form of request, unless presented during a hearing, should be filed with the clerk of the court in writing, must state the grounds therefor, must set forth the relief or order sought, conform to the Rules of Criminal Procedure and the Local Rules of the Comal County Courts-at-Law and District Courts, and at the same time a true copy must be served on all other parties, and must be noted on the docket.
Every defendant magistrated is assigned a pre-file magistrate case number. That MAG number should be utilized whenever a pleading, motion or application is filed for consideration by the Magistrate Judge. The Magistrate Court coordinator will schedule and set all hearings, either in person or by remote audiovisual link such as Zoom.
Additionally, the District Court or County Court-at-Law in which the criminal charges may be pending may from time to time assign some aspect of any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and their attorney, if any of record, and the State's attorney, to appear before the Magistrate Court at the time and place as noticed by the Magistrate Court for a conference and hearing. The defendant shall appear at any such pre-trial proceeding. The pre-trial hearing shall be to determine any of the matters so designated and assigned.
Indigence Determination Standards:
At the Magistrate’s Hearing, each defendant shall be provided an opportunity to request court appointed counsel, if indigent. Each requesting defendant shall complete and file a sworn Affidavit of Indigent Status, in a form approved by the Comal County Judges. The Magistrate will ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided. If the defendant does not speak and/or understand the English language or is deaf, the magistrate shall inform the person in a manner consistent with Texas Code of Criminal Procedure Articles 38.30 and 38.31.
If an indigent defendant is entitled to and requests appointed counsel, the Magistrate shall appoint counsel as soon as possible but not later than the end of the third working day after the date on which the Magistrate receives the defendant's request for appointment of counsel.
The Magistrate shall immediately transmit the Affidavit of Indigence, and Defendant’s Request for Court Appointed Counsel to a District Judge in felony cases and to a County Court-at-Law Judge in misdemeanor cases.
The Judge making court appointments of counsel for indigents shall review the Affidavit of Indigence and such other information bearing on the financial status of the defendant and make a determination of indigence status and appoint counsel where required by law within 3 working days after receiving the request for court appointed counsel. In determining indigence, the Judge shall presume indigence if the defendant's income is below 125% of the Federal Poverty Guidelines. See: http://tidc.tamu.edu/IDPlanDocuments/Comal/Comal District Court 2021 Poverty Guidelines.pdf, and See: http://tidc.tamu.edu/IDPlan/ViewPlan.aspx?PlanID=409 Comal County-Court-at-Law 2022 Poverty Guidelines. The Judge making court appointments of counsel for indigents shall consider the following standards for determining indigence and such other reasonable factors as the court finds to have a bearing on the financial inability of a defendant to retain counsel:
- Defendant’s income from any and all sources;
- Sources of the defendant’s income;
- Assets of the defendant; Property owned by the defendant, or in which the defendant has an interest;
- Outstanding obligations of the defendant;
- Necessary expenses of the defendant;
- The number and age of the defendant’s legal dependents;
- Spousal income available to the defendant; and
- Such other reasonable factors as determined by the Judge.
- The Judge shall not consider whether the defendant has posted bail, except to the extent that it reflects on the defendant’s financial circumstances.
MENTAL HEALTH (16.22) ASSESSEMENTS:
The Sandra Bland Act of 2017 mandates county jails assess arrested people and report those with mental health, developmental disability and substance abuse issues to be diverted toward treatment. It made it easier for defendants to receive a personal bond if they have a mental illness or intellectual disability, and required that independent law enforcement agencies investigate jail deaths. That Act has been made a part of the Texas Code of Criminal Procedure. https://statutes.capitol.texas.gov/Docs/CR/htm/CR.16.htm#16.22.
Upon arrest and detention in the Comal County Jail, that Act requires the Sheriff or jailer to assess whether there is reasonable cause to believe that a defendant charged with a Class B misdemeanor or higher offense has a mental illness or an intellectual disability, and if so, to notify the Magistrate. Consequently, the Magistrate Judge reviews such written assessments on every such person arrested and booked into the jail and issues a Mental Health Evaluation (16.22) Order. If the Magistrate Judge determines that such reasonable cause exists, the 16.22 Order issued requires a further evaluation and report by a qualified mental health or developmental disability expert. If the resulting evaluation confirms the assessment, the evaluation is sent and the defendant may be referred to mental health services or the case may be referred to the Comal County Specialty Mental Health Court – County Court-at-Law No.3. All such 16.22 Assessments, Orders and Reports are confidential and not generally subject to disclosure.
Comal County utilizes a Client Choice Implementation Plan for the timely and fair appointment of counsel for indigent defendants in Comal County, Texas, as described above. According to the Plan, a defendant may complete an Affidavit of Indigent Status and Application for Court Appointed Attorney at or following Magistration.DC/Forms/COMAL COUNTY AFFIDAVIT OF INDIGENCE AND APPOINTED ATTORNEY APPLICATION 20220420.pdf. If an indigent defendant is entitled to and requests appointed counsel, the Magistrate or Judge will appoint counsel as soon as possible but not later than the end of the third working day after the date on which the Magistrate receives the defendant's request for appointment of counsel.
The Magistrate Judge assigns attorneys and makes appointments for indigent defendants in all unfiled misdemeanor cases, according to the Indigent Defense Plan on file for Comal County. Attorney’s must apply and be pre-approved, based on their level of experience, for appointment to represent such Defendants. The appointments are made according to a rotating attorney appointment wheel. The appointed attorney is immediately notified of the appointment by email letter from the Magistrate Court.
Court appointed attorneys for indigent defendants in felony level cases are selected and appointed by the District Courts (unless the Magistrate is assigned that responsibility), according to the Indigent Defense Plan on file for Comal County. If an indigent defendant is entitled to and requests appointed counsel, the Magistrate will transmit the Affidavit-Application to the District Court for consideration and appointment.
Attorneys are pre-approved for appointment to represent defendants based on their experience for the level offense charged. Attorney’s may make application to be considered for appointment by submitting an "Affidavit of Licensed Attorney Practicing Law in Comal County, Texas", a copy of which is attached to the Comal County Indigent Defense Commission Plan as “Comal District Court Attorney Application for Appointment.wpd”.
Court appointed counsel are to make every reasonable effort to contact the defendant not later than the end of the first working day after appointment and to interview the defendant as soon as practicable.
Supporting County Offices:
- Criminal District Attorney's Office 830-221-1300
- District Clerk's Office 830-221-1250
- County Clerk's Office 830-221-1230
- Community Supervision and Corrections Department 830-620-5596
- Office of Juvenile Probation 830-620-5541
- District Court Coordinator 830-221-1270
- District Court Administrator 830-221-1270
- County Court at Law Coordinator 830-221-1180
- Comal County Sheriff - Bonding Office 830-620-3450 ext 2154
- Texas Government Code, Chap. 54, Subchap. Y https://statutes.capitol.texas.gov/Docs/GV/htm/GV.54.htm
- Comal District Court IDC Plan: http://tidc.tamu.edu/IDPlan/ViewPlan.aspx?PlanID=551
- Comal County Court-at-Law IDC Plan: http://tidc.tamu.edu/IDPlan/ViewPlan.aspx?PlanID=409
- Code of Criminal Procedure - Motions, Pleadings, and Exceptions https://statutes.capitol.texas.gov/docs/CR/htm/CR.28.htm
- Governor’s Executive Order GA2019TXEO13 and CCP 17.151 and 17.03 Governor Abbott Prohibits Release Of Individuals In Custody With History Of Offenses Involving Physical Violence | Office of the Texas Governor | Greg Abbott
- Attorney General Opinion JC-0215 JC-0215 | Office of the Attorney General (texasattorneygeneral.gov)
- Office of Court Administration Public Safety Report System: TCCP Art 17.021-17.028 CODE OF CRIMINAL PROCEDURE CHAPTER 17. BAIL (texas.gov)
- Sandra Bland Act: TCCP Art 16.22 https://statutes.capitol.texas.gov/Docs/CR/htm/CR.16.htm#16.22
- Comal County Local District and County Court-at-Law Court Rules Local_Rules_District_Court.pdf (comal.tx.us)
- Affidavit of Indigent Status and Application for Court Appointed Attorney (220420) https://www.co.comal.tx.us/CCLaw/Forms_CCL2/Comal County Court Affidavit of Indigence.pdf