Suspect is arrested for a felony under art. 14.01, 14.03 or 14.04. Obviously the arresting officer or someone on his behalf must take the "offender" before a magistrate as required by art. 14.06 and must provide the magistrate in some fashion with information so that the magistrate can make a probable cause determination in accordance with art. 17.033 and Green, 872 S.W.2d at 721. But, does the magistrate thereafter issue a commitment under 16.20? Is continued custody legal without a commitment (assuming bail is not posted)? See 16.21. Is it necessary for a formal charge to be filed? Since the issue of probable cause has already been determined and bail set, is there still really a right to an examining trial? Even if there is, could you just ask the magistrate to take notice of the prior determination, or perhaps the "evidence" already produced?

The reasons for my questions are that I have defendants requesting a "dismissal" in cases where we ultimately determined not to prosecute (i.e., no indictment was ever sought). My answer has been that there is nothing to "dismiss" in that situation. Furthermore, our grand juries only meet once each 3 months in each county of the district, so often we get a request for an examining trial which cannot be "cut off" by return of an indictment. E.g., Salinas, 784 S.W.2d 421. These requests appear to be designed only to gather impeachment evidence (if anything). My guess is they would dwindle if I could take the approach suggested above. Any ideas?

[This message was edited by Martin Peterson on 05-11-04 at .]

I think you still have a right to an examining trial prior to indictment even if the magistrate has made an earlier probable cause finding.

There should be some charge filed or the defendant should not be held in jail.

When I took over here, I changed the every-three-months grand jury schedule to once a month and it helped a lot. The grand jury sessions are much shorter, the cases get to court much sooner, and the docket shrinks. This change would also reduce your number of examining trials.

I also send a "decline" letter to each defendant whose case is declined so they will know the results of the case. Not wanting to give the defendant reasons that might be critical of a law enforcement agency, I simply tell them I have exercised my prosecutorial discretion and am closing the file without criminal charges being filed. I also tell them to notify their bonding company, which eliminates a lot of phone calls from the bonding companies.

Ken, when requested we also provide a letter stating prosecution has been declined. The issue is whether there is also something to be "dismissed". If a complaint is filed to secure a warrant, then our JPs assign a case number and are happy to later accept a motion from us to dismiss the complaint. But, where no warrant was necessary to initiate custody, why would a complaint later be filed with a magistrate? Bail has already been set under art. 17.21 or 17.22 and 17.25. The requirements of the Fourth Amendment have already been met. Under the new law, the defendant's right to counsel attaches whether or not a formal charge is leveled at that time. It seems to me the whole idea that the grand jury's determination of probable cause supplants any right to an examination by a magistrate (and the fact that the result of the examining trial does not later affect the ability of a prosecutor to convince a grand jury) logically precludes the need for an examining trial whenever the issues have already been decided. In either case "the principal purpose and justification of [the examining trial hearing] have been satisfied." Harris, 457 S.W.2d at 907. Professor Dix suggests that if a probable cause determination were made in connection with a writ of habeas corpus that this would "moot the issue, perhaps without providing the defense with the advantages that it seeks from the examining trial." I say the Gerstein hearing should likewise moot the issue. If and when the code is revised, Chapter 16 definitely needs to be reworked because examining trials are a total waste of time and major inconvenience in an "open file" jurisdiction like ours.

OK, all my venting about examining trials aside, someone has to know whether a formal charge should be filed in each case of a warrantless felony arrest . . . and why. Presumably this is done by filing a complaint. Who is it filed with and what action (if any) is taken in response? So far as I can tell the only thing you are accomplishing in this procedure is invocation of the accused's Sixth Amendment right to counsel for him and all that that entails. Seems like there is some US Supreme Court case out there that talks about filing formal charges within 48 hours, but I do not remember that being a constitutional requirement. It seems to me the magistrate informs the accused of the nature of charge against him without the necessity of a formal complaint setting out all of the elements. The bondsman seems to know what offense to state in the bond without a complaint being filed. What am I missing?

Don't your officers have a TCIC report that is in limbo unless you complete the process and dismiss through the JP's office? This is a pain for us too because we never know which JP the officers used and we send the dismissals to that JP.

Martha, if you are referring to the tracking form or "TRN", I presume part 1 is initiated at the jail at the time of arrest (with or without a warrant). We complete part 2 stating prosecution was refused (without pre-trial diversion), whether we file any type of "dismissal" or not. Part 3 (judicial section) is never completed by anyone (since case never arrived in any court). I see entries on criminal histories reflecting the same sort of thing occurring elsewhere all the time. So, I don't think a formal charge needs to be filed just to get the TRN properly filled out or filed.

The one time the issue does arise is when the accused posts a cash bond and wants a refund. Many treasurers want to see a court order before giving a refund. I have not quite figured out how best to address that situation, though I have a JP who signed dismissals for cases never filed in his court just to accomodate the treasurer. Since no one is answering my question directly, I am getting the impression everyone has a policy of requiring their officers to file a complaint with regard to each arrest. If so, let me know, even if you have no idea why. Ken, another thing I try to do is provide a letter to the investigating officer more fully explaining why we declined to prosecute the case (and often suggesting a misdemeanor charge be filed). Do you do that? That letter is entirely different from the one adressed "to whom it may concern" that just generically states "in the exercise of our prosecutorial discretion we have determined not to pursue prosecution of the offense."

I likewise send a different letter to the police officer with details as to why the case was declined in hopes that the same deficiency is not present in the next case filed by that officer.

I'd hate to get that letter, Ken, but I'd love the fact that you cared enough to send it... and I'd be more likely to not get it wrong the next time. Here's an attaboy for ya!

Mike