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Basic Info that I can't find right now! Login/Join 
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The problem is there is a defense attorney who will sometimes (frequently enough that I am resorting to this forum) file motions and not serve them on the prosecution. In drafting a motion for sanctions, WHERE is the requirement that all pleadings in a criminal case be served on the opposing party / counsel? The civil rule (21) is easy to find, but I can't find the criminal case equivalent, only the rules re: service of the indictment, etc. ... please help.
 
Posts: 325 | Location: Texas, USA | Registered: November 16, 2004Reply With QuoteReport This Post
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Do you have local rules that require such service?

In the absence of an express rule of procedure, common law prevails. Tex. Code Crim. Pro. art. 1.27.
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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No local rule, but I could have sworn I saw this in the CCP somewhere a few years ago... thought my age was starting to cause memory loss. Thanks JB.
 
Posts: 325 | Location: Texas, USA | Registered: November 16, 2004Reply With QuoteReport This Post
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You are thinking of Article 1.052 (b) & (e).
 
Posts: 2138 | Location: McKinney, Texas, USA | Registered: February 15, 2001Reply With QuoteReport This Post
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Have to wonder if failure to serve the State creates an ethical violation. Sort of an ex parte communication?
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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I looked at CCP 1.052 (b) and (e) before my initial post, but could not find a specific requirement for SERVICE, only for signing, good faith, etc. Motion for sanctions will argue common law violation. And yes, definitely an ex parte communication to obtain an order on a motion without any hearing, without opposing party getting a copy of the motion, and without any notice of a hearing. Thanks again.
 
Posts: 325 | Location: Texas, USA | Registered: November 16, 2004Reply With QuoteReport This Post
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A lawyer shall not:

(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:

(2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer.
 
Posts: 7860 | Location: Georgetown, Texas | Registered: January 25, 2001Reply With QuoteReport This Post
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Those basic "Well, everyone knows THAT" issues are always the hardest to look up--my sympathies are with you!
 
Posts: 102 | Location: Galveston, Texas | Registered: September 27, 2004Reply With QuoteReport This Post
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I admit it has been quite a few years since I did criminal defense but I remember always doing a certificate of service (just like civil). If your defense attorney is doing a certificate of service and signing it and then NOT serving it, seems that you can get him with that.
 
Posts: 108 | Location: Wichita Falls, TX | Registered: February 09, 2004Reply With QuoteReport This Post
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