We have had a number of telephone calls concerning the difficulty folks are having in complying with the new Art. 17.033, CCP (called "Keel bonds" by a number of folks after the House member who wrote the legislation).
Art. 17.033, effective January 1, 2002, requires the release of a person arrested for ANY felony without a warrant if that person is not magistrated, with a finding of probable cause, within 24 hours. (48 hours for felonies).
We have heard of a number of instances of folks being released because the police just couldn't get the person in front of a magistrate within 24 hours. Sounds like someone could get hurt here...
Any horror stories out there we need to know about....
You can check the Issues in Prosecution section to see how Harris County is handling the new requirements....
[This message was edited by erik on 01-11-02 at .]
What a typically ridiculous response by the Legislature. How does the release of a criminal defendant (who could potentially cause serious harm to a community) address his right to have a judge decide if there was probable cause to arrest him? Why isn't a writ of habeas corpus (a legal procedure as old as the earth) sufficient to deal with the failure to make such a determination?
Bad law. And it will lead to a terrible case. And the Legislature should be held responsible when it happens.
This bill was Keel's answer to a Travis County complaint that people were being held too long before being charged and/or appearing before a magistrate. Of course, the new SB 7 would take care of that by itself -- by getting the person a lawyer right away -- so this is a real overkill.
And we know what happens when a bad guy is accidentally released, for whatever reason. You might have seen on the news last night here in Austin the guy who was released because of an APD paperwork snafu, and he committed a capital murder a couple days later....
In a case involving the constitutionality of art. 17.151 I argued that statute "unconstitutionally infringes upon the court's inherent power to require bail adequate to assure the safety of the community and a defendant's appearance in court. Ex parte Emery, 970 S.W.2d 144, 145. In prohibiting excessive bail in Art. I, sec. 13, the Texas Constitution necessarily implies there is a duty and authority to require bail. Ex parte Solsona 146 S.W.2d 761, 762. Art. I, sec. 11 of the Constitution speaks only of bail by "sufficient sureties". Though it does not prohibit personal recognizance bonds where the court determines the accused himself has sufficient property or there is other reason to believe the promise to reappear is meaningful, this provision otherwise limits the authority of the legislature to control the amount or kind of bail. That is strictly a judicial decision to be made in each individual case."
I also suggested in another post concerning SB7 that it is not the duty of the sheriff to determine whether the person is "unable to obtain a surety for the bond or unable to deposit money in the amount of the bond". Thus, maybe he can at least demand a $10,000 surety bond in these situations.
I agree that the use of a get out of jail free card as a remedy for a delay in charges being filed is a potentionally unconstitutional violation of the separation of powers. It is particularly galling because the judge (who issues the order) and the prosecutor (who is presumably being punished) often neither did anything wrong. And constitutionally speaking, no one may have done anything wrong.
Once again, it is a legislative solution for the gripe of a single person. Legislation by anecdote is the worst form of law.
Can you dismiss the case and refile it to get the defendant back in jail?
Doesn't this law basically comply with federal law from a 1980's civil suit out of Dallas County where the county was held liable, I think under �1983, for damages for holding people warrantless more than 48 hours without probable cause determination, either through warrant or magistrate hearing? Peter Harlan in the Dallas office worked the case I'm thinking about -- maybe you could pick his brain before everybody and their uncle gangs up on old Keel?
Hey, nobody wants to deprive a defendant of his nearly God-given right to a 48 hour hearing. The problem is that the remedy for missing it has little to do with the right.
Assuming that a criminal defendant killed 10 people and for some reason (work with me here) the booking people messed up the paperwork and forgot to bring him over for a probable cause hearing until the 49th hour. Are we supposed to believe that society should be subjected to the release of a patently dangerous criminal because of that mistake? The judge and prosecutor didn't know so couldn't be held knowingly responsible.
This is the same sort of nonsense that went on with the bail bond laws for a few years (not exactly, but humor me). The courts had no problem using the separation of power provisions of the state constitution to say this was wrong.
Setting aside the constitution, there is still nothing wrong with challenging Keel's misuse of his personal power in the Legislature to punish his local officials for his belief there was a problem and thereby making us all pay.
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