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STATE OF TEXAS VS ___________________ |
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________________ Court COUNTY OF ____________ |
Now comes Name: Defendant’s name , hereinafter referred to as “Defendant” in the above styled case and challenges the subject matter jurisdiction of this court as follows:
Challenge to Subject Matter Jurisdiction
Defendant will show that Defendant has a statutory discharge as shown below:
In the instant case, on or about the ___ day of ________ ______. Defendant was arrested on an allegation of an on sight offence.
Defendant was transported directly to the __________________ jail. Defendant was held in jail for ____ day(s) then brought before a judicial officer who read Defendant his/her rights and set bail.
More than 48 hours have passed since the arrest of Defendant.
An examination of the court records will show that no order issued under Texas Code of Criminal Procedure resides in the records of the clerk of the court.
Based on the above facts, Defendant has a right to discharge as required by Texas Code of Criminal Procedure article 16.17 which reads as follows:
Art. 16.17. DECISION OF JUDGE. After the examining trial has been had, the judge shall make an order committing the defendant to the jail of the proper county, discharging him or admitting him to bail, as the law and facts of the case may require. Failure of the judge to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused shall be discharged.
In as much as Defendant was arrested at a time after the alleged offense, the only authority of the arresting officer would be an existing warrant. The only mechanism in Texas Law for the issuance of a warrant where no trial court has yet to receive jurisdiction is by way of an examining trial. If an examining trial was held under Chapter 16 Texas Code of Criminal Procedure and probable cause found and a warrant was issued there would necessarily be an order under 16.17 and a warrant under 16.20 in the records of the clerk of the court as required by Texas Code of Criminal Procedure 17.30 which reads as follows:
Art. 17.30. SHALL CERTIFY PROCEEDINGS. The magistrate, before whom an examination has taken place upon a criminal accusation, shall certify to all the proceedings had before him, as well as where he discharges, holds to bail or commits, and transmit them, sealed up, to the court before which the defendant may be tried, writing his name across the seals of the envelope. The voluntary statement of the defendant, the testimony, bail bonds, and every other proceeding in the case, shall be thus delivered to the clerk of the proper court, without delay.
An examination of the public record will show no such order or warrant in the record of the County Clerk. Defendant moves the court to take judicial notice of the fact that no order or warrant has been filed with the clerk of the court of jurisdiction withing the 48 hour time frame as stipulated by Texas Code of Criminal Procedure 16.17 supra.
Petition for Declaratory Judgment
Petitioner moves this court to declare that, a party has a right to a reasonable expectation that the clear mandate of law will be followed in the matter of an arrest of a person on the allegation of an onsite offense or an existing warrant and said person shall immediately be taken directly to the nearest magistrate for the purpose of an examining trial in accordance with Chapter 16 Texas Code of Criminal Procedure.
Where a person (hereinafter referred to as “Defendant,” is arrested for an alleged onsite offense, the person making the arrest shall give notice to some magistrate in accordance with Texas Code of Criminal Procedure 2.13(b)(3) which reads as follows:
(b) The officer shall:
(3) give notice to some magistrate of all offenses committed within the officer's jurisdiction, where the officer has good reason to believe there has been a violation of the penal law;
In order to accomplish the requirement of Texas Code of Criminal Procedure 2.13(b)(3)supra, the person making the arrest must take the accused directly to the nearest magistrate by the most direct route.
Where a person is arrested in Texas for an on sight offence, the person making the arrest must act in accordance with Texas Code of Criminal Procedure 14.06(a) which reads as follows:
Art. 14.06(a) MUST TAKE OFFENDER BEFORE MAGISTRATE.
(a) Except as otherwise provided by this article, in each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall take the person arrested or have him taken without unnecessary delay, but not later than 48 hours after the person is arrested, before the magistrate who may have ordered the arrest, before some magistrate of the county where the arrest was made without an order, or, to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in any other county of this state. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.
Without regard to the rights of the individual, the above is a statutory duty placed upon the person making the arrest.
By the above, the person making the arrest is required to take the person arrested directly to the nearest magistrate (see Heath v Boyd), by the most direct route as follows:
Moreover, if Heath's arrest had been authorized by the statutes, his subsequent detention as pleaded and proved would make a case of false imprisonment against Boyd. The undisputed facts are that after his arrest Heath rode with the sheriff to the former's car, which he then entered and drove several miles to the courthouse, followed by Boyd. There he was detained in Boyd's office from one to three hours, while Boyd was seeking advice by telephone as to what to do, in the face of a plain statutory command as to what must be done in all cases of arrest without warrant. Art. 217, C.C.P., 1925, provides, "In each case enumerated in this chapter, the person making the arrest shall immediately take the person arrested * * before the nearest magistrate where the arrest was made without an order." Substantially the same requirement appears in Art. 325, C.C.P., 1925, and Art. 487, P.C., 1925. Presumably, there was a magistrate in Mertzon, the county seat. Yet Boyd offers no reason why he did not take Heath before that official. Neither in his pleadings nor in his testimony does he suggest that a magistrate was not reasonably available, although the arrest and detention all occurred between 8 o'clock in the morning and noon. If he had taken Heath to that official, he could have gotten the information and assistance he was seeking by telephone. He was under no obligation to seek advice or aid from Johnson. He was under a positive duty immediately to seek a magistrate. That such failure, unexcused, makes a case of false imprisonment, as a matter of law, is held by all the authorities. Newby v. Gunn et al, 74 Tex. 455, 12 S.W. 67; McBeath v. Campbell, 12 S.W.2d 118; Alamo Downs, Inc., et al v. Briggs (Civ. App.), 106 S.W.2d 733 (er. dism.); Box v. Fluitt (Civ. App.), 47 S.W.2d 1107; Maddox v. Hudgeons (Civ. App.), 72 S.W. 414 (er. ref.); Karner et al v. Stump (Civ. App.), 34 S.W. 656; Petty v. Morgan et al (Civ. App.), 116 S.W. 141; Bishop v. Lucy et al (Civ. App.) 50 S.W. 1029; 35 C.J.S., p. 546, sec. 31 Heath v. Boyd, 141 Tex. 569, 575 (Tex. 1943)
See also McCrady v. State, 316 S.W.2d 408, 409-10 (Tex. Crim. App. 1958):
It was affirmatively established that Louise was confined in jail for approximately 17 hours after her arrest, 8 hours of which were during the normal working day of a non-holiday Friday, before the offer was made, and yet she was not carried before a magistrate in compliance with the terms of Article 217, Vernon's Annotated Code of Criminal Procedure, which provides:
'In each case enumerated in this chapter, the person making the arrest shall immediately take the person arrested before the magistrate who may have ordered the arrest, or before the nearest magistrate where the arrest was made without an order.' McCrady v. State, 316 S.W.2d 408, 409-10 (Tex. Crim. App. 1958)
In the instant case, the arresting officer took the accused directly to jail having made no due diligent effort to locate a magistrate as considered by the courts in Roberts v Bohac
Texas law requires that an arrested motorist be taken "immediately" before a magistrate. Tex.Rev.Civ.Stat.Ann. Art. 6701d, §§ 147-148. The test for determining compliance is whether the conduct of the police was reasonable under the circumstances of the case:
"The law must be given a practical and reasonable application. Accordingly, the word `immediately' is very generally held to mean with due diligence. The accused has the right to be presented without delay, but the question of what is delay must be determined by all the facts and circumstances. . . . While courts must safeguard the rights of individuals, they should not impose liability upon peace officers for delays which are reasonable under all the circumstances." Hicks v. Matthews, 1954, 153 Tex. 177, 266 S.W.2d 846, 849.
In Hicks the court excused the failure to present the accused to a magistrate when the officer knew or had "good grounds for the belief" that the magistrate was not in his office. Id. Appellants contend that Hicks entitled them to a directed verdict because there was testimony that the magistrate was not generally available after 9:00 p. m. But there was also testimony that, on other occasions, when an arrest was made late in the evening, the officers had telephoned the magistrate, and, if he was home, he had made himself available. The officers did not even attempt to ascertain whether the magistrate was, or could make himself, available. Roberts v. Bohac, 574 F.2d 1232, 1233 (5th Cir. 1978)
In the instant case, the officers made no effort to locate a magistrate as they acted in accordance with standing policy.
While the Sheriff’s actions may have seemed rational and reasonable, his action was not in compliance with law. Local law enforcement officials are not allowed to juxtapose their idea of justice with the rule of law. When an officer elects an option that is not in compliance with law, you might say they could be “Screwed” as stipulated by Screws v. United States, 325 U.S. 91, 109, (1945) which reads in pertinent part as follows:
Take the case of a local officer who persists in enforcing a type of ordinance which the Court has held invalid as violative of the guarantees of free speech or freedom of worship. Or a local official continues to select juries in a manner which flies in the teeth of decisions of the Court. If those acts are done willfully, how can the officer possibly claim that he had no fair warning that his acts were prohibited by the statute? He violates the statute not merely because he has a bad purpose but because he acts in defiance of announced rules of law. He who defies a decision interpreting the Constitution knows precisely what he is doing. If sane, he hardly may be heard to say that he knew not what he did. Screws v. United States, 325 U.S. 91, 109, (1945)
There is a subordinate clause to 14.06 supra which reads as follows:
, to provide more expeditiously to the person arrested the warnings described by Article 15.17 of this Code, before a magistrate in any other county of this state. The magistrate shall immediately perform the duties described in Article 15.17 of this Code.
This subordinate clause was not in the code when the code was published by Vernon’s Publishing. When West Publishing first printed the Texas Code of Criminal Procedure in 1974 the clause was there. A close examination of the verbiage leaves room for varying opinions by reasonable people of ordinary prudence.
Officials in Texas have interpreted the clause to mean that an arresting officer need not take the person arrested to the nearest magistrate, but rather, could simply take them to jail without making a due diligent effort to locate a magistrate, then bring them before a magistrate the next morning to be advised of their rights. This interpretation flies in the face of Heath v Boyd supra and some 800 years of jurisprudence and would have the effect of negating an entire chapter of the Chapter 16 Texas Code of Criminal Procedure .
A more reasoned interpretation would be that this provision only applies when the accused is arrested outside the county of original jurisdiction, thus the authorization to take the person before a magistrate in any “other” county in Texas. The county of original jurisdiction is not some “other” county. Read this way, when the person was returned to the county of jurisdiction, an examining trial would be mandated by Chapter 16 Texas Code of Criminal Procedure as, absent an order issued under Texas Code of Criminal Procedure 16.17 supra, the accused would have a due process right to discharge.
Under the legal maxium of Trespass Ab Initio, when an official elects a practice or procedure not sanctioned by law which has the effect of denying a citizen in the full and free access to and enjoyment of a right in violation of a law relating to his/her officer, the official is stripped of his/her official capacity and becomes a criminal offender him/herself in violation of Texas Penal Code 39.03 which reads in pertinent part as follows:
Sec. 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity…
There can be no law which sanctions criminal acts by public officials. Any such consideration or interpretation of Texas Code of Criminal Procedure 14.06 supra would be an abomination of the codes and the ruin of the rule of law. When an official commits acts not in accord with the rule of law, s/he repudiates his/her contract with the State and abandons any official immunity, as official immunity may only protect a person when acting under the rule of law and not the color of law.
The police, in the instant case, acted in accordance with established policy that was apparently implemented through considerations of administrative convenience and adjudicative expediency which had the result of a policy which acted in clear and direct violation of long established law. The courts considered public policy of this sort in Monel v Department of Social Services of New York, held as follows:
Our analysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities and other local government units to be included among those persons to whom § 1983 applies. Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers. Moreover, although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 "person," by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental "custom" even though such a custom has not received formal approval through the body's official decisionmaking channels. As Mr. Justice Harlan, writing for the Court, said in Adickes v. S. H. Kress Co., 398 U.S. 144, 167-168 (1970): "Congress included customs and usages [in § 1983] because of the persistent and widespread discriminatory practices of state officials . . . . Although not authorized by written law, such practices of state officials could well be so permanent and well settled as to constitute a `custom or usage' with the force of law. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690-91 (1978)
Where a person is arrested on an existing warrant, the person making the arrest is commanded by Texas Code of Criminal Article 15.16 which reads as follows:
Art. 15.16. HOW WARRANT IS EXECUTED. (a) The officer or person executing a warrant of arrest shall without unnecessary delay take the person or have him taken before the magistrate who issued the warrant or before the magistrate named in the warrant if the magistrate is in the same county where the person is arrested. If the issuing or named magistrate is in another county, the person arrested shall without unnecessary delay be taken before some magistrate in the county in which he was arrested.
(b) Notwithstanding Subsection (a), to provide more expeditiously to the person arrested the warnings described by Article 15.17, the officer or person executing the arrest warrant may as permitted by that article take the person arrested before a magistrate in a county other than the county of arrest.
As argued in Section II(B)(2) above, any interpretation of Section II(B)(3) that would by-pass and examining trial would be incompatible with the corpus juris. According to Diruzzon v. State, one law cannot be interpreted in a way that would render another law superfluous .
So long as the original provision is susceptible to a construction that is in harmony with the amendment, so as to avoid implied repeal of some part of the original, salvage rather than subtraction should be the preferred judicial response, since "it is no more the court's function to revise [a legislative enactment] by subtraction than by addition." Id. § 26, at 174 DiRuzzo v. State, 581 S.W.3d 788, 800 (Tex. Crim. App. 2019)
A criminal accusation by a credible person in the form of a verified criminal affidavit gives a magistrate the jurisdiction and duty to convene an examining court in order to examine into the sufficiency of the allegation. Under Texas law, if a person is arrested, with or without a warrant, the arresting officer is commanded to take the person directly to the nearest magistrate (see Texas Code of Criminal Procedure 14.06(a)supra, Texas Code of Criminal Article 15.16 supra). When a person is brought before a magistrate, the duty of the magistrate is clear as follows:
It is the duty of every magistrate to keep the peace as stipulated by Texas Code of Criminal Procedure Article 2.10 which reads as follows:
Art. 2.10. DUTY OF MAGISTRATES. It is the duty of every magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment.
This issue has been addressed in Texas Attorney Opinion jh0500 as follows:
The Honorable Gus L. Lanier page 2 (H-500)
A justice of the peace, in addition to having criminal and civil judicial duties imposed by the Constitution and laws of Texas, is a magistrate. Code Crim. Proc. art. 2.09. As such, he is required to perform the duties of a magistrate as set out in article 2.10, Code of Criminal Procedure:
It is the duty of every magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment. (Emphasis added).
All magistrates are empowered to issue warrants of arrest under the authority of article 15.03, Code of Criminal Procedure which reads in part:
A magistrate may issue a warrant of arrest or a summons: . . ..
2, When any person shall make oath before the magistrate that another has committed some offense against the laws of the State . . .. Article 15.04 of the Code further provides: The affidavit made before the magistrate or district or county attorney is called a “complaint” if it charges the commission of an offense.
The Honorable Gus L. Lanier page 3 (H-500)
It is clear that any and all offenses defined by the criminal laws, of Texas, felonies, and misdemeanors of whatever classification, may be made known to any magistrate, including a justice of the peace, by complaint and that any magistrate can issue a warrant of arrest based on such complaint.
The method by which the magistrate preserves the peace is by convening an examining court as follows:
Art. 2.11. EXAMINING COURT. When the magistrate sits for the purpose of inquiring into a criminal accusation against any person, this is called an examining court.
By the above, magistrates in the State of Texas are given jurisdiction and duty to convene an examining court when they are presented with a criminal complaint according to Texas Code of Criminal Procedure 15.03 which reads in pertinent part as follows:
Art. 15.03. MAGISTRATE MAY ISSUE WARRANT OR SUMMONS. (a) A magistrate may issue a warrant of arrest or a summons:
1. In any case in which he is by law authorized to order verbally the arrest of an offender;
2. When any person shall make oath before the magistrate that another has committed some offense against the laws of the State; …
When the arrested person is brought before a magistrate, either in person or by electronic means, the magistrate is then directed to convene and examining court to be held under prescriptions of Texas Code of Criminal Procedure Chapter 16.
In order for the trial court to accrue subject matter jurisdiction, there must be an examining trial as a matter of black letter law. A prosecuting attorney is merely an attorney representing the State and has no power to initiate a prosecution.
Before the magistrate can examine into the sufficiency of an allegation, there are certain rights that must be accorded the accused. At the examining trial, the magistrate is commanded to accord certain rights to the accused as follows:
Under Texas Code of Criminal Procedure Article 16.01 the magistrate is commanded as follows:
Art. 16.01. EXAMINING TRIAL. When the accused has been brought before a magistrate for an examining trial that officer shall proceed to examine into the truth of the accusation made, allowing the accused, however, sufficient time to procure counsel. In a proper case, the magistrate may appoint counsel to represent an accused in such examining trial only, to be compensated as otherwise provided in this Code. The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case. If the accused has been transferred for criminal prosecution after a hearing under Section 54.02, Family Code, the accused may be granted an examining trial at the discretion of the court.
The first right the court must consider is the right to counsel. We will address the problem with the current “magistration” practice and show how it has the effect of giving the prosecutor opportunity to pressure the accused to waive counsel in order to secure a deal.
By the above, an examining trial is not a matter of right, but rather, is a matter of the due course of the laws. In Article 16.01 the accused is not granted the right to an examining trial in a felony. The accused already has that right as a matter of due course. In this case the right goes to timing of an examining trial. The accused is granted the right to an examining trial before there can be an indictment of record. Under Texas Code of Criminal Procedure Article 220A.304, the fact of the indictment forbidden be entered into the records of the court until the person has been arrested as follows:
Art. 20A.304. PRESENTMENT OF INDICTMENT ENTERED IN RECORD. (a) If the defendant is in custody or under bond at the time the indictment is presented, the fact of the presentment shall be entered in the court's record, noting briefly the style of the criminal action, the file number of the indictment, and the defendant's name.
It was the clear intent of the Legislature that an indictment is not to be a replacement for a determination of probable cause by some magistrate as, the first thing that must happen on arrest is that the person must be taken to the nearest magistrate where an examining trial is commanded to be held.
After the examining trial, the magistrate must forward the order to the trial court under Texas Code of Criminal Procedure Chapter 17.30 which reads as follows:
Art. 17.30. SHALL CERTIFY PROCEEDINGS. The magistrate, before whom an examination has taken place upon a criminal accusation, shall certify to all the proceedings had before him, as well as where he discharges, holds to bail or commits, and transmit them, sealed up, to the court before which the defendant may be tried, writing his name across the seals of the envelope. The voluntary statement of the defendant, the testimony, bail bonds, and every other proceeding in the case, shall be thus delivered to the clerk of the proper court, without delay.
In the case where no probable cause is found, the magistrate will notify the court of same and the court will, therefore, not accrue jurisdiction in the case.
After the examining trial has been held, the magistrate must issue an order under Texas Code of Criminal Procedure Article 16.17 which reads as follows:
Art. 16.17. DECISION OF JUDGE. After the examining trial has been had, the judge shall make an order committing the defendant to the jail of the proper county, discharging him or admitting him to bail, as the law and facts of the case may require. Failure of the judge to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused shall be discharged.
After the examining trial, the magistrate is commanded to seal all documents in an envelope and forward them to the court of jurisdiction in accordance with Texas Code of Criminal Procedure Chapter 17.30 supra.
The statutes make no distinction between a finding of probable cause and a finding of no probable cause. In either case, all the documents had in the hearing, including the order are required to be forwarded to the clerk of the court where they are intended to become a part of the permanent public record.
The Texas Code of Criminal Procedure gives a magistrate jurisdiction for the purpose of holding an examining court. If the magistrate fails to find probable cause and issues an order stating that the accused was discharged for lack of a probable cause finding, the trial court cannot take jurisdiction.
There is no mechanism for initiating a prosecution other that by way of an order finding probable cause issued by a magistrate. It is unclear how the clerk of the court can initiate a prosecution without the proper order from a magistrate court.
A true bill is not an indictment and does not confer jurisdiction on the trial court as the court cannot take judicial notice of the true bill until the accused has been arrested as stipulated by Texas Code of Criminal Procedure 20A.304 which reads as follows:
Art. 20A.304. PRESENTMENT OF INDICTMENT ENTERED IN RECORD. (a) If the defendant is in custody or under bond at the time the indictment is presented, the fact of the presentment shall be entered in the court's record, noting briefly the style of the criminal action, the file number of the indictment, and the defendant's name.
(b) If the defendant is not in custody or under bond at the time the indictment is presented, the indictment may not be made public and the entry in the court's record relating to the indictment must be delayed until the capias is served and the defendant is placed in custody or under bond.
Considering the above in isolation raises a curious question: Why would the Legislature go to special purpose to forbid the recording of the indictment until the accused has been arrested? This question is clarified when one considers the above in para materia with the corpus juris. Statues are not written in isolation and must always be considered in the context of the entire code.
The question is clearly answered when you read Texas Code of Criminal Procedure Article 16.01 which reads as follows:
Art. 16.01. EXAMINING TRIAL. When the accused has been brought before a magistrate for an examining trial that officer shall proceed to examine into the truth of the accusation made, allowing the accused, however, sufficient time to procure counsel. In a proper case, the magistrate may appoint counsel to represent an accused in such examining trial only, to be compensated as otherwise provided in this Code. The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case. If the accused has been transferred for criminal prosecution after a hearing under Section 54.02, Family Code, the accused may be granted an examining trial at the discretion of the court. (emphasis added)
The above does not grant the accused a right to an examining trial. No one has a statutory right to an examining trial under Texas Law. But then, no one has a right be arrested, taken to jail, prosecuted or any of those other things the police, prosecution, and courts regularly do. The acts of the government go to statutory prescriptions. Those statutory requirements go to the due course of the laws and that is something the people do have Constitutionally protected right to.
In this case, the Legislature went to special effort to insure that, the indictment did not take the place of a proper examining trial by giving anyone accused by indictment the right to an examining trial before the indictment could become a part of the record of the court.
The people in this republic have a right to a reasonable expectation that the law will be followed. We will tolerate policy so long as that policy does not intrude on the black letter law.
There is no place in Texas law where a defendant is granted a right to an examining trial. Texas is a republic, and all rights are inherent unless specifically curtailed by the will of the governed. However, examining trials are not about rights, they are statutory prescriptions, they are about the due course of the laws. The Texas Constitution strictly forbad public officials from denying the people in the due course of the laws, therefore, due curse of law is something the people do have according to Texas Constitution Article 1, Section 10 which reads as follows:
Sec. 10. RIGHTS OF ACCUSED IN CRIMINAL PROSECUTIONS. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger. (emphasis added)
A key provision of an examining trial is the right to be heard. This right is specifically stipulated by Texas Code of Texas Code of Criminal Procedure Chapter 16.04 which reads as follows:
Art. 16.04. VOLUNTARY STATEMENT. If the accused desires to make a voluntary statement, he may do so before the examination of any witness, but not afterward. His statement shall be reduced to writing by or under the direction of the magistrate, or by the accused or his counsel, and shall be signed by the accused by affixing his name or mark, but shall not be sworn to by him. The magistrate shall attest by his own certificate and signature to the execution and signing of the statement.
Absent this statutory right, an arresting officer is open to claim anything s/he wants with no concern for judicial review before the accused is forced to endure the cost, emotional stress, and indignity of being imprisoned then forced to defend him/herself against a charge that may have been warrantless from the outset.
In an examining trial the accused has the right to be faced by his accuser and examine the accuser as the witness against him along with all other witnesses in accordance with Texas Code of Criminal Procedure 16.06 which reads as follows:
Art. 16.06. COUNSEL MAY EXAMINE WITNESS. The counsel for the State, and the accused or his counsel may question the witnesses on direct or cross examination. If no counsel appears for the State the magistrate may examine the witnesses.
Where a person is arrested and taken directly to jail, the well-crafted mosaic of law breaks down horribly. The Constitution of the State of Texas, Article 1, Section 19 guarantees all citizens the following:
Sec. 19. DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE OF LAW. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.
The people of the State of Texas have a right to the due course of the law under the Constitution of the United States, Fourteenth Amendment, Section 1 which reads as follows:
Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, with-out due process of law; nor deny to any person within its juris-diction the equal protection of the laws.
The Constitution of the State of Texas, Article 1, Section 1 likewise binds the State of Texas to the due process provisions of the Constitution of the United States as follows:
Sec. 1. FREEDOM AND SOVEREIGNTY OF STATE. Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.
Texas Code of Criminal Procedure 14.06(a)supra and Texas Code of Criminal Procedure 15.16 supra are clear in that an arrested person is to be immediately taken to a magistrate.
"The law must be given a practical and reasonable application. Accordingly, the word `immediately' is very generally held to Defendant an with due diligence. The accused has the right to be presented without delay, but the question of what delay is must be determined by all the facts and circumstances. . .. While courts must safeguard the rights of individuals, they should not impose liability upon peace officers for delays which are reasonable under all the circumstances." Hicks v. Matthews, 1954, 153 Tex 177, 266 S.W.2d 846,849. Roberts v. Bohac, 574 F.2d 1232 (5th Cir. 06/13/1978)
Defendant has a right to a proper determination of probable cause by a neutral magistrate in accordance as stipulated by the Federal Courts in GERSTEIN v. PUGH ET AL, 95 S. Ct. 854, 420 U.S. 103, 43 L. Ed. 2d 54, 1975.SCT.40602, which reads in pertinent part as follows:
Maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, but such a requirement would constitute an intolerable handicap for legitimate law enforcement. Thus, while the Court has expressed a preference for the use of arrest warrants when feasible, Beck v. Ohio, at 96; Wong Sun v. United States, 371 U.S. 471, 479-482 (1963), it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant. See Ker v. California, 374 U.S. 23 (1963); Draper v. United States, 358 U.S. 307 (1959; Trupiano v. United States, 334 U.S. 699, 705 (1948).
Under this practical compromise, a policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate's neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State's reasons for taking summary action subside, the suspect's need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships. See R. Goldfarb, Ransom 32-91 (1965); L. Katz, Justice Is the Crime 51-62 (1972. Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty. See, e. g., 18 U. S. C. 3146 (a)(2, (5). When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish Defendant aningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest. GERSTEIN v. PUGH ET AL, 95 S. Ct. 854, 420 U.S. 103, 43 L. Ed. 2d 54, 1975.SCT.40602
Where an individual is arrested in the county of original jurisdiction, the arresting officer has a duty, absent extenuating circumstances such as storm, flood, or intervening emergency, to immediately take Defendant to the nearest magistrate. It can hardly be construed that, during normal business hours, with not intervening emergency clear from the public record, no magistrate was available. Surely, there were magistrates in the county who would have been available considering all the officials designated as magistrates under Texas Code of Criminal Procedure Article 2.09 which reads as follows:
Art. 2.09. WHO ARE MAGISTRATES. Each of the following officers is a magistrate within the Defendant aning of this Code: The justices of the Supreme Court, the judges of the Court of Criminal Appeals, the justices of the Courts of Appeals, the judges of the District Court, the magistrates appointed by the judges of the district courts of Bexar County, Dallas County, or Tarrant County that give preference to criminal cases, the criminal law hearing officers for Harris County appointed under Subchapter L, Chapter 54, Government Code, the criminal law hearing officers for Cameron County appointed under Subchapter BB, Chapter 54, Government Code, the magistrates or associate judges appointed by the judges of the district courts of Lubbock County, Nolan County, or Webb County, the magistrates appointed by the judges of the criminal district courts of Dallas County or Tarrant County, the associate judges appointed by the judges of the district courts and the county courts at law that give preference to criminal cases in Jefferson County, the associate judges appointed by the judges of the district courts and the statutory county courts of Brazos County, Nueces County, or Williamson County, the magistrates appointed by the judges of the district courts and statutory county courts that give preference to criminal cases in Travis County, the criminal magistrates appointed by the Brazoria County Commissioners Court, the criminal magistrates appointed by the Burnet County Commissioners Court, the magistrates appointed by the El Paso Council of Judges, the county judges, the judges of the county courts at law, judges of the county criminal courts, the judges of statutory probate courts, the associate judges appointed by the judges of the statutory probate courts under Chapter 54A, Government Code, the associate judges appointed by the judge of a district court under Chapter 54A, Government Code, the magistrates appointed under Subchapter JJ, Chapter 54, Government Code, the magistrates appointed by the Collin County Commissioners Court, the magistrates appointed by the Fort Bend County Commissioners Court, the justices of the peace, and the mayors and recorders and the judges of the municipal courts of incorporated cities or towns.
Even if there were no magistrates in the county, surely there was at least one magistrate in Texas that could make him/herself available considering that examining trials can be conducted electronically in Texas.
While delays can be expected in certain circumstances, simple failure to seek the authority envisioned by Gerstien v Pugh(supra), may not be construed as a proximate cause of reasonable delay. This issue was addressed in the seminal case on this is Heath v. Boyd, 175 S.W.2d 214 (Tex. 1943).
“Moreover, if Heath's arrest had been authorized by the statutes, his subsequent detention as pleaded proved would make a case of false imprisonment against Boyd. The undisputed facts are that after his arrest Heath rode with the sheriff to the former's car, which he then entered and drove several miles to the courthouse, followed by Boyd. There he was detained in Boyd's office from one to three hours, while Boyd was seeking advice by telephone as to what to do, in the face of a plain statutory command as to [***13] what must be done in all cases of arrest without warrant. Art. 217, C.C.P., 1925, provides, "I each case enumerated in this chapter, the person making the arrest shall immediately take the person arrested * * before the nearest magistrate where the arrest was made without an order." Substantially the same requirement appears in Art. 325, C.C.P., 1925, and Art. 487, P.C., 1925. Presumably, there was a magistrate in Mertzon, the county seat. Yet Boyd offers no reason why he did not take Heath before that official. Neither in his pleadings nor in his testimony does he suggest that a magistrate was not reasonably available, although the arrest and detention all occurred between 8 o'clock in the morning and noon. If he had taken Heath to that official, he could have gotten the information and assistance he was seeking by telephone. He was under no obligation to seek advice or aid from Johnson. He was under a positive duty immediately to seek a magistrate. That such failure, unexcused, makes a case of false imprisonment, as a matter of law, is held by all the authorities. Newby v. Gunn et al, 74 Texas, 455, 12 S.W. 67; McBeath v. Campbell, 12 S.W. (2d) 118; Alamo Downs, Inc., et [***14] al v. Briggs (Civ. App.), 106 S.W. (2d) 733 (er. dism.); Box v. Fluitt (Civ. App.), 47 S.W. (2d) 1107; Maddox v. Hudgeons (Civ. App.), 72 S.W. 414 (er. ref.); [**218] Karner et al v. Stump (Civ. App.), 34 S.W. 656; Petty v. Morgan et al (Civ. App.), 116 S.W. 141; Bishop v. Lucy et al (Civ. App.) 50 S.W. 1029; 35 C.J.S., p. 546, sec. 31Heath v. Boyd, 175 S.W.2d 214 (Tex. 1943)
The arresting officer in this case made no due diligent effort to locate a magistrate.
“Although the failure to take the plaintiff before a magistrate would have been excused if good grounds had existed for the belief that a magistrate was not available, such was not the case since the Defendant officers made no attempt to determine whether the magistrate was or would make himself available.” Roberts v Bohac, 574 F2d 1232
Irrespective of any other states, Texas has specific legislation concerning this requirement to take the accused before a magistrate. In Texas, if a magistrate is not available in the county, the consideration of the availability of a magistrate must be extended to include every county in the state (see Texas Code of Criminal Procedure Article 14.06 supra).
The record offers, as the government's only justification, evidence that the magistrate, who issued the warrants, advised of his unavailability after the early evening of Friday, September 8, 1989. There are three other magistrates in the District. The record is bereft of any evidence as to their availability. Likewise, the record is bereft of any evidence as to the availability of any of the district Judges. n5 Absent evidence of other than the unavailability of the duty magistrate (the propriety of which is not here questioned), there is no basis to find that the delay for the entire period from [*20] the arrest to presentment was necessary. To be sure, it was a weekend. The court was closed. But those facts do not entitle the government to presume the absence of an obligation to try to arrange the appearance of an arrestee before one of the other possible judicial officers. The law remains a force in life even outside usual business hours and all judicial officers have the obligation to respond to the needs of parties as they are mandated by the law. Defendant to their reasonable non-judicial activities, all judicial officers stand ready to fulfill that obligation. Here, the government has not shown the unavailability of all the possible judicial officers. The obligation of complying with the law lies with the government, which thus has the burden of proving that an arrestee was brought before a judicial officer without unnecessary delay. Its proof of the unavailability of one judicial officer does not prove that the delay to the next regular business hours, some sixty to sixty-five hours later, did not constitute unnecessary delay if it does not exhaust the possibility of an appearance before one of the other judicial officers in the district. See United States v. Colon, 835 [*21] F.2d 27, 30-31 (2d Cir. 1987).
With the current technology and law, it is not unreasonable to consider every magistrate in the State of Texas as any one magistrate can be reached by phone as any other magistrate in the state. Distance is no longer an impediment to seeking permission of a magistrate before taking a citizen to jail.
The arresting officer, in the instant case, made no due diligent effort to locate a magistrate as the officer was acting in accordance with established police policy, which involved taking Defendant directly to jail and did not include a due diligent effort to locate a magistrate for the purposes stipulated by Texas Code of Criminal Procedure 14.06 supra and the federal requirement articulated by Gerstien v Pugh(supra).
The court will take judicial notice: there is no evidence, in the records of the clerk of the court, that there is no order issued under Texas Code of Criminal Procedure 16.17 Supra. Defendant was not taken to the nearest magistrate as commanded by Texas Code of Criminal Procedure 14.06 Supra, but rather, was unceremoniously tossed into a jail cell.
In order to accord an accused the due course of the laws, all complaints issued by peace officers are directed to a magistrate of the county, not a judge, clerk, or prosecutor as stipulated by the Legislature on passage of Texas Code of Criminal Procedure 2.13(b)(3)supra.
Defendant was taken to jail, not because the arresting officer was unable to locate a magistrate in the county or any surrounding county, but as a matter of police policy. Arresting officer was acting in furtherance of an ongoing set of schemes intended to punish, coerce, and intimidate Defendant to suppress any dissent or objection.
Merely being arrested is for most persons an "awesome and frightening" experience, an invasion of considerable proportion. ALI, Model Code for Pre-Arraignment Procedure, Commentary 290-91 (1975); see Foley v. Connelie , 435 U.S. 291, 98 S. Ct. 1067, 55 L. Ed. 2d 287, 46 U.S.L.W. 4237, 4239 (1978) ("An arrest . . . is a serious matter for any person. . . . Even the routine traffic arrests made by the state trooper . . . can intrude on the privacy of the individual."); United States v. Watson, supra, 423 U.S. at 428 (Powell, J., concurring). ("A search may cause only annoyance and temporary inconvenience to the law-abiding citizen, assuming more serious dimension only when it turns up evidence of criminality. An arrest, however, is a serious personal intrusion regardless of whether the person seized is guilty or innocent."); Chimel v. California, supra, 395 U.S. at 776 (White, J., dissenting) ("the invasion and disruption of a [**30] man's life and privacy which stem from his arrest are ordinarily far greater than the relatively minor intrusions attending a search of his premises."). United States v. Reed, 572 F.2d 412; 1978 U.S. App., 3 Fed. R. Evid. Serv. (Callaghan) 155 (emphasis added)
The personal intrusion referenced by United States v. Reed supra is exactly the effect intended by the policy requiring deputies, after arrest, to transport the accused directly to jail.
In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. n16 For (HN4Go to the description of this Headnote. under the Due Process Clause), a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. n17 [*536] See Ingraham v. Wright, 430 U.S. 651, 671-672 n. 40, 674 (1977); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 165-167, 186 (1963); Wong Wing v. United States, 163 U.S. 228, 237 (1896). A person lawfully committed to pretrial detention has not been adjudged guilty of any crime. He has had only a "judicial determination of probable cause as a prerequisite to [the] extended restraint of [his] liberty following arrest." Gerstein v. Pugh, supra, at 114; see Virginia v. Paul, 148 U.S. 107, 119 (1893). And, if [***467] he is detained for a suspected violation of a federal law, he also has had a bail hearing. See 18 U. S. C. §§ 3146, 3148. n18 Under [**1873] such circumstances, the Government concededly may detain him to ensure his presence at trial and may subject him to the restrictions and conditions of the detention facility so long as those conditions and restrictions [*537] do not amount to punishment, or otherwise violate the Constitution. Bell v. Wolfish, 441 U.S. 520
The above citation presumes that, if a person is in jail that the person has already been to the magistrate and a determination of probable cause has been made. In the instant cause, Defendant had not been adjudged guilty of any crime. Defendant was being held awaiting a judicial determination of probable cause.
By the instant cause, it is asserted and alleged, Defendant was deliberately secreted form a magistrate who could make a determination of probable cause which would authorize the pre-trial restriction at liberty envisioned by Bell v Wolfish supra. It is further alleged Defendant was secreted from the nearest magistrate for the express purpose of preventing Defendant from entering exculpatory evidence, to expose Defendant to the punishing treatment of the booking process, and the defamatory creation of a permanent criminal record.
In the event Defendant had been taken to the nearest magistrate and an examination held into the sufficiency of the allegation resulting in a determination of no probable cause, it would have been patently illegal for the police to book the relator into jail. Under, Texas Code of Criminal Procedure 14.06 supra, the officer had a black letter law duty to take Defendant directly to the nearest magistrate. It can hardly be construed that the Legislature intended the accused be booked into the jail as if already an inmate, held overnight, then taken a magistrate deep in the jail for a “Magistration” as if Defendant had been arrested outside the county of original jurisdiction.
Had there actually been a crime committed within the officer’s sight and hearing, he may have had jurisdiction to arrest Defendant, however, at the point at which Defendant was secured in custody, the officer’s jurisdiction "evaporated" (see. GERSTEIN v. PUGH ET AL, 95 S. Ct. 854, 420 U.S. 103, 43 L. Ed. 2d 54, 1975.SCT.40602) and he had authority only to detain Defendant for as long as it reasonably took, considering all the immediate circumstances, to bring the accused before a magistrate for an examination into the sufficiency of the allegation where an order could be issued under Texas Code of Criminal Procedure 16.17supra. and a warrant under 16.20 which reads as follows:
Art. 16.20. "COMMITMENT". A "commitment" is an order signed by the proper magistrate directing a sheriff to receive and place in jail the person so committed. It will be sufficient if it have the following requisites:
1. That it run in the name of "The State of Texas";
2. That it be addressed to the sheriff of the county to the jail of which the defendant is committed;
3. That it state in plain language the offense for which the defendant is committed, and give his name, if it be known, or if unknown, contain an accurate description of the defendant;
4. That it state to what court and at what time the defendant is to be held to answer;
5. When the prisoner is sent out of the county where the prosecution arose, the warrant of commitment shall state that there is no safe jail in the proper county; and
6. If bail has been granted, the amount of bail shall be stated in the warrant of commitment.
By the above, absent a determination of probable cause, and a warrant in the public record, the arresting officer was bereft of authority to imprison Defendant.
Absent a showing that a magistrate was not available in any county in the state for the purpose of holding an examining court, there is no legal necessity or authority to subject Defendant to the humiliating and punishing treatment involved in booking. Neither would such procedures be allowed where a probable cause determination found no probable cause. Therefore, the booking procedure, which would be a clear violation of the due course of the laws where no probable cause was found, does not become valid or proper where the accused was deliberately secreted from a magistrate.
It is the contention and allegation of Defendant that the arresting officer failed to make any attempt to locate a magistrate to use the pretense of an inability to locate same in order to justify exposing Defendant to the humiliation and punishment of the booking procedure and an extended period of incarceration. Said treatment has the effect of denying Defendant in the presumption of innocence and increases the inhibiting effect intended to suppress the expression of rights by Defendant.
It is the further contention that, while the jail may detain the accused until such time as a magistrate can be located, in the event a due diligent effort has been made to locate same, any use of the time as an opportunity to punish Defendant must be considered an intentional violation of the due course of the laws and a violation of the rights of Defendant to same.
[*343] The purpose of this impressively pervasive requirement of criminal procedure is plain. A democratic society, in which respect for the dignity of all Defendants is central, naturally guards against the misuse of the law enforcement process. Zeal in tracking down crime is not in itself an assurance of soberness of judgment. Disinterestedness in law enforcement does not alone prevent disregard of cherished liberties. Experience has therefore counseled that safeguards must be provided against the dangers of the overzealous as well as the despotic. The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard -- not only in assuring protection for the innocent but also in securing conviction of the guilty by Defendant that commend themselves to a progressive and self-confident society. McNabb v. United States, 318 U.S. 332
Defendant moves this court to dismiss all charges against Defendant in accordance with the statutory mandate contained in Texas Code of Criminal Procedure 16.17.
Respectfully,
_________________________
Name: ___________________
Address: _________________
City: ________________ St: ______ Zip ______
VERIFICATION
I, Name:
__________________________, do swear and affirm that all statements made
herein are true and accurate, in all respects, to the best of my
knowledge.
Sign: ______________________________
Name: _____________________
Address: ____________________________
City: _____________ ST:
________ Zip: _______
Email: __________________________
The Person above, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to this
document and acknowledged to me that he/she executed the same in his authorized
capacity and that by his signature on this instrument who is the person who
executed this instrument.
I certify under PENALTY OF PERJURY under the laws of this
State that the foregoing paragraph is true and correct.
Witness my hand and official seal.
______________________________
NOTARY PUBLIC IN AND FOR Notary
Seal
THE STATE OF TEXAS
Cause: 20-CCR-216614 & 216615
|
STATE OF TEXAS VS Salman Iqbal |
§ § § § § |
County Court at Law 6 COUNTY OF Fort Bend |
ORDER
This, the ______day of __________________, 2021 the foregoing motion having been presented and heard by the Court, it is hereby ORDERED that:
The instant case is dismissed for lack of a proper order bestowing jurisdiction on the court.
Granted ____
Denied ____ to which Petition Excepts.
__________________________
Judge Presiding
The relief requested is granted in part as follows:
____________________________________________________________
____________________________________________________________
____________________________________________________________
__________________________
Judge Presiding