Our newly-elected county court at law judge does not want to continue the former judge's practice of giving an admonishment sheet to all unrepresented defendant on court days, advising them of their right to counsel before allowing them to talk to the prosecutors, as per CCP 1.051. Our prosecutors have taken the position that the law does not allow us to talk to unrepresented defendants unless they have received these admonishments, so we seem to be at an impasse. Any thoughts on how to get around this? We don't want to get cross-ways with the judge, she's really good, but we don't know what to do.
1.051 (f-1) prohibits communication only "with a defendant who has requested the appointment of counsel." (f-2) requires an admonishment by the judge only if the judge determines to "direct or encourage the defendant to communicate with the attorney representing the state." If a defendant has not requested appointed counsel, has not retained counsel, and comes to the prosecutor without any encouragement from the court, you are not legally prohibited from discussing the case with the defendant by 1.051. But see comment 4 to Discip. Rule 3.09. Your judge, however, may not to be following Oliver, 872 S.W.2d 713,716 which establishes: "The appearance of a criminal defendant in court without counsel, therefore, necessitates an examination by the trial judge to assure that the defendant is actually aware of his right to retain an attorney and to discover whether he intends to do so." But, I guess your judge might be able to validly assume that this responsibility has already been satisfied under art. 15.17(a).
Better safe than sorry, right? The Texas Indigent Defense Commission audited our county court. Afterward, our county judge started giving the admonishment. I'm not really sure what the consequences are for running afoul of those guys...it may impact indigent defense funding or plans...
Posts: 104 | Location: Brazos County, Texas | Registered: February 10, 2010
We have a form which is a waiver of rights for 24 hours - it is handed out by the court coordinator on our "Wild Wednesday" (aka cattle call). After completing it, each defendant is called to the bench and offered the chance to come talk to me. We also have "stand by" defense counsel available for general "they didn't read me my rights" type questions. (they actually talk many out of court appointed attorneys).
If the defendant is incarcerated, the magistrate has a form in which they request that the prosecutor come visit with them about the case OR they request appointed counsel...
If your new CCAL judge wants to get sued or wants to jeopardize your county's funding (if any) from the Indigent Defense Commission, then she should stick to her guns. If she wants to avoid those headaches, then she should listen to you.
Posts: 2395 | Location: TDCAA | Registered: March 08, 2002