If you do go with the contempt option (and I think filing a mandamus to make the judge sign the dismissal is the better route), remember that the Government Code gives special provisions to any officer of the court held in contempt. The contemnor must be released on his own recognizance pending a hearing on his guilt or innocence. The hearing must be in front of a judge other than the one that assessed contempt. Gov't Code Section 21.002(d).

The only thing you have to do to invoke this section is file a motion in the court that assessed contempt, requesting the matter be referred to the presiding judge of the administrative judicial region. If the judge refuses to comply under this section, it's a mandamus-able act. See In re Abraham, 22 S.W.3d 512 for an example.

I like Martin's analysis: judge would dismiss case on ground other than one we have asserted (i.e., on speedy trial grounds, essentially). And he can't do that b/c that would be the same thing as a sua sponte dismissal.

BUT: Judge isn't going to dismiss the case if we don't have our witnesses. He's going to call the case and enter a not guilty verdict. If we don't waive our jury trial right, he will instruct the jury to find him n/g.

I agree that in time, this will become too difficult a procedure for the judge to pursue, politically speaking. Question is: how many defendants will walk away from their cases before this happens?

Andrea, that Gov't code contempt provision is new to me, and very handy. thanks!

Mia, like GG said we gotta talk. That is a bad idea on so many levels. Don't do that ever.

While I still do not fully understand the reasoning behind the change from the common law in 1876, it is my belief that the State probably cannot use mandamus as a means of "forcing" the dismissal of a case. See Anderson, 26 S.W.2d 174. CJS states "the court is generally required to grant the prosecutor's nolle prosequi unless it is clearly contrary to the manifest public interest" (whatever that means).

Thus, the only option is to obtain a continuance (additional notice of the setting) or somehow deal with the trial proceedings. My idea of absence was designed to protect anyone from being held in contempt. Furthermore, just because the attorney assigned to the case is held in contempt, does that mean the court cannot proceed with the trial if that is what it wants to do? I fear use of political pressure may be the only real solution to this type of problem. Obviously, everyone must agree some amount of notice is necessary to make the system work.

How long was the guy in the pokey before he bonded out?

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Furthermore, just because the attorney assigned to the case is held in contempt, does that mean the court cannot proceed with the trial if that is what it wants to do?

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If a trial happens in the courtroom and there's no prosecutor to handle it, can there be a judgment?

In the civil context, a notice of nonsuit, without an order from the court, terminates the cause of action by the nonsuiting party. If the judge has no discretion whether to sign an order dismissing the case following a motion to dismiss or nolle prosequi by the State, then doesn't that effectively terminate the State's cause of action upon its filing?

To look at it another way, if you had filed this motion to dismiss, but no order was signed, do you think that you could show up for trial the next week without someone objecting that you had dismissed the indictment?

Therefore, it seems to me that you could argue that there is no active charge against this defendant; thus, there can be no acquittal following a "trial" on the dismissed indictment.

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Originally posted by KSchaefer:
If a trial happens in the courtroom and there's no prosecutor to handle it, can there be a judgment?

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Well, civil lawyers call that a default judgment, but I don't know if there is such a creature in the criminal law. The Code specifically allows a trial to proceed in the absence of the the defendant. See Art. 33.03. But, the defendant must be present when the sentence is pronounced. See Art. 42.03, Sec. 1. Does this help or hurt? It does not appear to me that the judge can appoint a pro tem just because there is no prosecutor in the courtroom. Art. 2.07 appears to apply only to the elected.

In many counties, there would be no judgment because the prosecutor's office actually prepares the judgment. We do here.

Maybe we should propose some legislation to clarify the right of a prosecutor to dismiss a cases simply by filing a Notice of Dismissal without the necessity of a court order as is done in civil cases under Rule 162 of the Rules of Civil Procedure.

Having gone through a debate and research about this issue about 12 years ago, a situation not unlike this which was feared but never actually arose in another jurisdiction.

As JB will say, a judge cannot dismiss a case except upon motion by a prosecutor. Yes, factually he can sign a dismissal, but it will be without legal moment. Yes, the situation gets messy from then on, but legally a defendant could be re-charged and then would begin the killing of the trees and the filing of the briefs and appeals. But ultimately the case could be prosecuted, with ultimately being the key phrase.

Our situation years ago involved a judge who didn't want a particular assistant prosecuting in his court, amidst false rumors that this assistant was going to run against that judge in the future. That fellow didn't ever run against the judge, but the judge blustered after the DA refused to assign the assistant elsewhere and stated he would refuse to allow that prosecutor to practice in his court.

The judge may control many things in the courtroom, but not which prosecutor works in there and not whether a dismissal is submitted. A similar situation is involved when a judge says he will announce the state "ready". Only the state announces the state ready.

Of course, the effect of such animosity often spreads like a cancer. A judge can then refuse to sign dismissals that the state submits, forcing the state to trial. And so on.