I'm sure that this issue has come up before with all the Republic of Texas and similar groups floating around, so before I reinvent the wheel --

I have a criminal case against a Republic of Texas guy. While it was on appeal, he filed a removal to federal court. We didn't receive any notice of it. The federal district judge remanded it to state court, but the 5th Circuit recently reversed that on a technical ground because he wasn't allowed to do it sua sponte and the State hadn't filed a motion to remand. So now I need to file a motion to remand with the federal district court. Has anyone ever handled this before and have a form or some guidance to give me?

The 5th Circuit also granted costs to the defendant, which seems a little odd since we weren't involved at all and the order reversed was on the district court's own motion. Is there any way to get this reversed? (We didn't find out about anything until more than a month after the order came down.)

He filed a removal of the criminal case to federal court, and someone filed it in federal court and then remanded it, all without any notice to the prosecutor?

Was this a civil case that was removed to federal court? I have never heard of a criminal case being subject to removal to federal court.

Ken,

That's exactly the point. Criminal cases aren't subject to removal! He has some kind of very strange argument (with the usual references to maritime law) about how it's really a civil case and deserves removal. The Fifth Circuit is apparently wanting us to file a motion to remand, since they noted that the district judge couldn't do it sua sponte and the State hadn't filed a motion. I'm not worried about it being granted, but I'm just trying to get the form right, since I haven't had to deal with federal court before.

That is nuts. Just goes to show that anyone can file anything in court.

Some criminal cases ARE subject to removal to federal court. See State v. Carley, 885 F. Supp. 940 (USDC - Western Dist. of Texas, 1994). In that case, a federal employee accused of criminal trespass got the state prosecution removed to federal court.

By the way, the opinion in that case is entertaining reading.

Only criminal cases where either a federal official or a member of the armed forces is being prosecuted, or where the defendant is alleging civil rights violations. Generally speaking, criminal cases can't be removed.

I was clerking for the Eighth Court of Appeals in El Paso when Judge Furgeson was working on that case across the street. Many of the law clerks hung out together for "professional development"--called "following the mariachis" at that time--and I remember that the case is even funnier than shown in the opinion. The Big Bend area is a very special place.

Well, I'll be darned. You never know what you will learn on the TDCAA User Forum.

I recall that case now as well, and what an interesting case it was. At the time of the case, I attended several seminars in Austin and Fort Worth where then County Attorney Shane Green attended, and spoke about that case.

Whatever happened to former County Attorney Green? Does she still practice?

What costs were incurred by the appellant/remover? How did the 5th Circuit rule without the appellee being notified? How does one remove a case that has already gone to trial? Your problem seems to be that although the case was subject to remand for lack of subject matter jurisdiction, that was not the basis actually found by the trial judge and you had no 1447(c) motion on file. I would just assert the court has no jurisdiction over the "federal question" under 1331 citing the Tello case, 142 Fed.Appx. 200. Indeed, you could still likely raise the question of whether the 5th Cir. had jurisdiction over the appeal and maybe solve the problem in New Orleans. The court should be sanctioning your defendant, not ordering the State to pay any costs. Maybe Kaufman County can help, since they dealt with the same type problem in Tello.

Martin,

I managed to put together a motion to remand with just those arguments -- it's blatantly clear there's no jurisdiction here, and I think the judge will toss it as quickly as possible. I'm still trying to figure out what to do about the Fifth Circuit stuff, though. I'm sure he doesn't have much in the way of costs, but the idea of us being made to pay it is grating!