tag:blogger.com,1999:blog-8597101.post221803465428697695..comments2024-03-25T20:06:39.794-05:00Comments on Grits for Breakfast: Many Texas counties not complying with SCOTUS' Rothgery rulingGritsforbreakfasthttp://www.blogger.com/profile/10152152869466958902noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-8597101.post-48305636240090178542008-10-25T08:57:00.000-05:002008-10-25T08:57:00.000-05:0015.17 certainly says that, but subsection j of CCP...15.17 certainly says that, but subsection j of CCP 1.051 contains the phrase, "notwithstanding any other provision of this section", appointment is NOT required for those not in custody.<BR/><BR/>Rothgery clearly mooted that part of 1.051(j), but the issue isn't 100% cut and dried ... maybe 98%, though. In my (non-lawyerly) opinion, they must either now appoint immediately at magistration or in the 1-3 day timeframe of subsection (c).<BR/><BR/>Expect the Lege to update the language in 1.051(j) to comply with Rothgery in some way, shape or form - the Association of Counties will certainly be pushing them to do so.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-27063305878171290592008-10-25T08:18:00.000-05:002008-10-25T08:18:00.000-05:00To 10:41If this is not talking about appointment o...To 10:41<BR/><BR/>If this is not talking about appointment of counsel I don't know what is. Notice it says SHALL.<BR/> <BR/>Art. 15.17. DUTIES OF ARRESTING OFFICER AND MAGISTRATE. (a) In each case enumerated in this Code, the person making the arrest or the person having custody of the person arrested shall without unnecessary delay, but not later than 48 hours after the person is arrested, take the person arrested or have him taken before some magistrate of the county where the accused was arrested or, to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in any other county of this state. <BR/><BR/>The magistrate shall also inform the person arrested of the person's right to request the appointment of counsel if the person cannot afford counsel. The magistrate shall inform the person arrested of the procedures for requesting appointment of counsel.<BR/><BR/>If the person arrested is indigent and requests appointment of counsel and if the magistrate is authorized under Article 26.04 to appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in accordance with Article 1.051.<BR/><BR/>Gone to the hunting lease!Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-48323306149070888722008-10-25T07:03:00.000-05:002008-10-25T07:03:00.000-05:0010:41 - Rothgery certainly invalidated the part of...10:41 - Rothgery certainly invalidated the part of (j) that said appointment is not required for defendants not in custody. (j) assumes a definition of when critical stages begin that SCOTUS changed.<BR/><BR/>I personally agree with your interpretation but that's not how the General Counsel at the Texas Association of Counties is advising his people. According to him, it's clear from (j) the Lege did not intend to require appointment of counsel at magistration for those who bond out, so statutory construction rules don'[t allow you to ignore the phrase in (j) that says "if an indigent defendant is released from custody prior to the appointment of counsel under this section, appointment of counsel is not required ...". You can't interpret a statute to produce an absurd result, he declared, and to say it's not required until something happens but that that thing happened in the past would be an absurd result, according to Allison. That's his position, anyway.<BR/><BR/>Andrea Marsh of the Fair Defense Project said she's heard this argument from many counties who are trying to find wiggle room in Rothgery, but it may backfire. If they don't adopt the 1-3 day timeline in (c), she says, the language in (j) would rule which requires appointment "when adversarial proceedings have initiated." That would be at or before the magistration hearing itself, not 1-3 days afterward.<BR/><BR/>Allison wants to say SCOTUS' "reasonable time" is the only requirement, but I aqree either provision of Texas law which might be applied would require appointment much sooner. The courts just haven't split those hairs yet.Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-61916443072467308682008-10-24T22:41:00.000-05:002008-10-24T22:41:00.000-05:00Rothgery did not invalidate Article 1.051(j). Roth...Rothgery did not invalidate Article 1.051(j). Rothgery says that adversary judicial proceedings begin at the Article 15.17 hearing. 1.051(j) says ("notwithstanding any other provision of this section") that for those making bond that counsel is to be appointed upon initiation of adversary judicial proceedings. Article 1.051(c) requires appointment of counsel within one or three working days of the receipt of the request by the appointing authority.<BR/><BR/>There is no contradiction between Article 15.17 and Article 1.051. Article 15.17 deals with requirements for magistration. Article 1.051 deals with appointment of counsel.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-36337388036635794462008-10-24T20:36:00.000-05:002008-10-24T20:36:00.000-05:00Well, it looks like if they followed 15.17 they wo...Well, it looks like if they followed 15.17 they would not have had a problem to start with and Gillespie County would not have been sued.<BR/><BR/>I thought all counties were mandated to implement their plan before January 1, 2001. That's what we did. It's about ten pages long.<BR/><BR/>Our district judges met before the law went into effect in 2001 with every sheriff's office, police department, justice of the peace, county and district clerks in their judicial district and made one thing perfectly clear....<BR/><BR/>that indigent appointments would take place at the initial appearance (setting of bail) in accordance with 15.17., not after the person was released.<BR/><BR/>The legislature implemented conflicting statutes.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-46492249383197727202008-10-24T20:15:00.001-05:002008-10-24T20:15:00.001-05:00To 8:13, the SCOTUS ruling invalidated 1.01(j)To 8:13, the SCOTUS ruling invalidated 1.01(j)Gritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-48187914584340902252008-10-24T20:15:00.000-05:002008-10-24T20:15:00.000-05:00To 8:05 - it'd be a shorter list of which ones are...To 8:05 - it'd be a shorter list of which ones are complying. At the end of the event the counties represented went around to identify an "action plan" they would try to implement when they returned home, and virtually all of them cited the need to revamp their indigent defennse plans to comply with Rothgery, and several said their judges weren't even really aware of it.<BR/><BR/>To 8:08, no, that doesn't seem logical at all if you understand how the system actually works. If your bond is $1,500 for a midemeanor, you pay $150 to a bondsman to get out, does that mean you can afford to pay a lawyer? How about if your parents pay your bail? Your assumption makes sense only if you ignore how these processes play out in the real worldGritsforbreakfasthttps://www.blogger.com/profile/10152152869466958902noreply@blogger.comtag:blogger.com,1999:blog-8597101.post-73516498362496189712008-10-24T20:13:00.000-05:002008-10-24T20:13:00.000-05:00Article 15.17 Texas CCP seems to contradict 1.01(j...Article 15.17 Texas CCP seems to contradict 1.01(j). What do you think?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-24257122350612225682008-10-24T20:08:00.000-05:002008-10-24T20:08:00.000-05:00Well Grits, does it not seem logical that if you c...Well Grits, does it not seem logical that if you can post bail, which generally requires a 10% to 15% payment of the total of bond to a bondsman, that you are not indigent?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-8597101.post-10030156095151148422008-10-24T20:05:00.000-05:002008-10-24T20:05:00.000-05:00Which counties are not complying?Which counties are not complying?Anonymousnoreply@blogger.com