Has anyone ever come across any law that says a trial court needs to give notice to the State of settings? We are being ambushed by not knowing a matter is set until the day of, or stumbling into the information by defense counsel calling to discuss it. These are pretrial matters of substance such as suppression, quashing indictments, etc. I can't find where we have the right to be told ANYTHING in this regard.

CCP Art. 28.01 Sec. 1 appears to direct the trial court to notify the defendant, his attorney , and the State of hearings listed in the statute.

Thanks, Ken. Interestingly enough, although the State can be required to be present at these hearings, all the language concerning notice and length of notice pertains to the "citizen accused". Section 3 doesn't even require that an order setting a hearing announced from the bench in open court be in the presence of the State, and 3(3) appears to put the onus on the State to prove notice to the defendant!!! Who has the onus to show notice to the State? After (regrettably) sober reflection on the system, we have concluded we are in fact the unacknowledged, bastard child of the criminal process.

But if you read CCP Art. 28.01 Sec. 1 carefully, it requires the court to direct the state to appear.

Additionally, if the judge persists in having hearings with no notice to the state, which are essentially ex parte, you should make a written request for notice in the future and inform him/her that a failure to provide notice will result in the filing of a complaint with the State Commission on Judicial Conduct.

I think you need to act forcefully.

Agreed and agreed. The Code drafters must have assumed common sense, and courtesy among court stakeholders, would be the order of the day. It makes no sense to require a party's presence but not require notification to that party. It is a common sense, and a common cooperation among electeds, issue as well. That's a currency I seem to recall as being more prevalent 36 years ago when I started having all the fun of lawyering! Pardon the "Reagon" moment.

And to continue the questions about notice...

Is there any rule of what is reasonable notice for the State outside of suppression issues? Defense wants an issue heard and requests a quick setting, set in two days, does anyone know of a case we could use to say that we do not have enough time to prepare for the legal response required? We are thinking if 28.01 requires 7 days notice for suppression, it would be analagous, but this is not suppression issue. No actual motion was filed, it looks be an argument about bond, but we are not quite sure what we are supposed to prepare for and would like to file a response saying there is not enough notice (and we do not have an available attorney at late notice to cover the hearing.)

Any cases you all know of?

Funny you should ask about cases. No, and a distinct lack of cases or other authority within my knowledge is what prompts me to put out a query to the smarter people on the forum. Also, I dare say that if one did a search on WestLaw looking for the right of the state to a fair trial it would come up blank. The constitution(s) just weren't drafted to give us a break.

Art. 28.01, Sec. 2 requires that pre-trial matters be on file for at least seven days before the pre-trial hearing. If not, "any such preliminary matters not raised or filed seven days before the hearing will not thereafter be allowed to be filed or raised, except by permission of the court for good cause shown . . ." (Note, however, that Miller v. State, 866 S.W.2d 243, 245-46 & n.5 (Tex. Crim. App. 1993) holds that a trial court may proceed even without a formal finding of good cause if State fails to object on basis of untimeliness.)

I'd argue that filing 2 days before pre-trial doesn't satisfy the 7 day requirement, and that the defendant's attorney can't show good cause why he or she waited until the last minute. I'd also argue that such lack of notice to the State prejudices the State because we can't get our officers/witnesses into court with less than 48 hours notice.