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Art.15.17 Magistrate Proceedings

Art.15.17 Magistrate Proceedings. TMCEC’s Regional Judges’ Seminar Tyler, October 25, 2011. James Bethke, Director, Texas Indigent Defense Commission jim.bethke@txcourts.gov. ARTICLE 15.17. When was the last time you read Article 15.17, CCP? . a. Yesterday in p rep for today’s class .

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Art.15.17 Magistrate Proceedings

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  1. Art.15.17 Magistrate Proceedings TMCEC’s Regional Judges’ Seminar Tyler, October 25, 2011 James Bethke, Director, Texas Indigent Defense Commission jim.bethke@txcourts.gov

  2. ARTICLE 15.17

  3. When was the last time you readArticle 15.17, CCP? a. Yesterday in prep for today’s class b. Within the last year c. Within the last 10 years d. None of the above e. All of the above

  4. What phrase below is not part of Article 15.17, CCP? a. “right to retain counsel” b. “right to remain silent” c. “right to terminate interview” d. “determine probable cause” e. “opportunity to consult counsel”

  5. TODAY’S AGENDA 1. Identify Framework for Article 15.17 2. Constitutional / Judicial / Statutory 3. List Statutory Duties * 4. Discuss/Apply Key Requirements * 5. Recognize Ancillary Issues *

  6. FRAMEWORK

  7. Bill of Rights 4th Amendment 5th Amendment 6th Amendment 8th Amendment

  8. Pecina v. StateMichigan v. JacksonMontejo v. Lousiana

  9. Rothgery v. Gillespie County128 S. Ct. 2578Decided June 23, 2008

  10. Article 15.17STATUTORYREQUIREMENTS

  11. How many duties are enumerated under article 15.17, CCP? a. More than 20 b. 19 c. 18 d. 17 e. Fewer than 17

  12. Art. 15.17. Duties of Arresting Officerand Magistrate • For every arrest • Person having custody of arrestee • Shall without delay—w/in 48 hours* • Take arrestee before Magistrate • In person or electronic broadcast system

  13. Art. 15.17. Duties of Arresting Officer and Magistrate “The magistrate SHALL inform in clear language the person arrested” “. . . the accusation against him and any affidavit filed therewith . . .”

  14. THE MAGISTRATE SHALLINFORM OF RIGHT TO: • Retain Counsel • Request appointment of counsel* • Remain silent • Counsel during interview • Terminate interview • Examining trial (felony only)

  15. Magistrate Shall Also Explain: • No requirement a give a statement • Any statement made by him may be used against him

  16. Magistrate Shall Also “Allow the person arrested reasonable time and opportunity to consult counsel”

  17. “The Magistrate ShallEnsure that reasonable assistance in completing necessary forms for requesting appointment of counsel is provided to person at the same time.”

  18. Non-English Speaking or Deaf “The magistrate shall inform the person in a manner consistent with articles 38.30 and 38.31”

  19. For Foreign Nationals • Explain right to contact consulate/embassy • Do they want you to contact?

  20. Magistrate Shall • Determine if arrestee currently on bail • Admit arrestee to bail if allowed by law

  21. “if allowed by law” • Texas Constitution Art. 1, • Section 11—“All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident . . .” • Section11a–MULTIPLE CONVICTIONS; DENIAL OF BAIL

  22. Misdemeanors Warrantless arrest $5,000 bond 24 hours Tx CCP art. 17.033(a) Magistrate may delay release up to 72 hours from time of arrest—subsection (c) Felonies Warrantless arrest $10,000 bond 48 hours Tx CCP art. 17.033(b) Magistrate may delay release up to 72 hours from time of arrest—subsection (c) No Probable Cause Determination by Magistrate

  23. Get Out-of-jail-free CardArticle 17.151 • Sec. 1—State not ready for trial • Felony—90 days • Class A—30 days • Class B—15 days • “fine only”—5 days • Sec. 2—Some Restrictions do Apply • Sec. 3—Violation of Conditions of Release

  24. The 15.17 Record subsection (a) Vs. subsection (e)* *See, subsection (f)too

  25. Making the Record Subsection (a) “A recording of the communication between the arrested person and the magistrate shall be made.” [electronic broadcast system] Subsection (e) “In each case in which a person arrested is taken before a magistrate as required by subsection (a), a record shall be made of: . . .” [Fair Defense Act]

  26. Making the Record Subsection (a) – REQUIRES A COMPREHENSIVE RECORDING OF ENTIRE COMMUNICATION BETWEEN THE ARRESTED PERSON AND MAGISTRATE. Subsection (e) – only requires recordation of information concerning whether person was, informed, asked and requested court appointed counsel. And per subsection (f) a record a record under (e) may be written or electronic and may REQUIRE add’l information pursuant local indigent defense plan.

  27. Magistrate May . . . • 15.17(b)—Release accused without bond if: • Arrestee charged w/ “fine only” misdemeanor • Arrestee identified w/ “certainty” • Arrestee ordered to appear in writing • Time, date & place • W/ magistrate’s signature • Arrestee given copy of order • Not applicable if arrestee previously convicted of an offense other than a “fine only” misdemeanor

  28. Interpreters for the Deaf Article 15.17(c) • Interpreters qualified & sworn pursuant to Tx CCP art. 38.31 • Shallinterpret required warnings • In a language the deaf accused can understand

  29. Unlawful arrest Magistrate shall Release arrestee Lack of P/C or Warrant Underlying offense Evading detention Lawful arrest Fugitive from justice pursuant to Tx CCP art. 51.13—Uniform Criminal Extradition Act Right to be taken “forthwith” before judge of a court of record Arti15.17(d)—“fresh pursuit”arrest by officers authorized to make felony arrests

  30. Effect of Failure to Comply with article 15.17 et seq. Art. 38.23 Evidence not to be used (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

  31. Effect of Failure to Comply with Tx CCP 15.17 et seq. • Renfro v. State, 958 S.W.2d 880, 887 (Tex.App—Texarkana 1997, pet. ref’d). • “without unnecessary delay” • “It is well settled that the failure to take an arrestee before a magistrate in a timely manner will not invalidate a confession unless there is proof of a causal connection between the delay and the confession. Cantu v. State, 842 S.W.2d 667, 680 (Tex.Crim.App. 1992).”

  32. Arrest for “out-of-county” offense • Tx CCP art. 15.18 Arrest w/ Warrant • * Section (a) taken before magistrate in county of arrest & magistrate shall • (1) take bail if allowed—transmit to court w/ jurisdiction • (2) “fine only” offense • Accept written plea of guilty or no contest • Set fine and costs, credit time served & determine indigency • Upon satisfaction of judgment, discharge defendant. • * Section (b)—Magistrate shall transmit written plea to court w/ jurisdiction before 11th day, including plea, orders, & collected fine/costs

  33. Arrest for “out-of-county” offense • Tx CCP art. 15.19(a)—Magistrate shall immediately notify Sheriff of other county by telegraph, mail or other written notice. • Tx CCP art. 15.21—Prisoner shall be discharged if Sheriff of other county fails to take charge w/in 10 days.

  34. Magistrate has NO duty to: • Travel to arrested person @ jail/elsewhere • Tx AG Op. No. MW-78, 1979. • Wait for arrival of a prosecutor to screen the cases, etc. • Tx AG Op. No. JM-151, 1984.

  35. A magistrate my receive a stipend above salary to perform a magistrate hearing under limited circumstances. True False

  36. Bexar County drunken French tourist “terrorist” incident

  37. Ancillary Issue Identification

  38. Wrongful Convictions in Texas • 79 Texans Exonerated Since 1992 • 44 th/ DNA evidence • 35 th/ non-DNA evidence

  39. Texas Exonerations by CountyDNA Exonerations and Non-DNA Cases Approved for Statutory Compensation • Dallas – 27 • Harris – 9 • Travis – 4 • Montgomery – 2 • Tarrant – 2 • Lubbock – 1 • Collin – 1 • El Paso – 1 • Ellis – 1 • McLennan – 1 • Smith – 1 • Uvalde – 1 • Angelina – 1 • Burleson – 1 • Denton – 1 • Jefferson – 1 • Pecos – 1 • Upshur – 1 • Swisher (Tulia) – 19 (19 compensated, 35 pardoned)

  40. Costly Mistakes

  41. Success video

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