I've had an inquiry from one of our law enforcement agencies seeking our input on the implementation of HB 2391. Among other things, they are considering the implementation of a policy to try to govern when an arrest should be made for one of the enumerated offenses as opposed to the issuance of a citation. Secondly, in our county, one of our "on call" Justices of the Peace typically goes by the jail every morning to magistrate the "arrestees." How are y'all handling the appearance time and locations for these "no arrest" Class A and B misdemeanors? Are your JP's setting special dockets for these HB 2391 cases?

Note how prosecutors are being pulled into decision-making about an arrest. That takes your work outside the courtroom and switches you, likely, from absolute to good faith immunity. It also places you in the public arena on the social issues of who to arrest and when.

My office handles felony cases, so I don't have to get in this mix. But, if I did, I would be very inclined to advise law enforcement not to use this very unorthodox system of bringing a person in to respond to a charge for which they could face jail time. I would also advise them that they are exposing themselves to accusations of favoritism, profiling, racism, etc.

Our county is also trying to figure out how this could be done. We are sort of at a loss....it sounds good for jail population reduction and not much else. We are a somewhat rural county with a sometimes full jail, but not an outright over crowding problem. If it's helpful, though, we want to do it correctly.

I also have questions about what will happen on a POM case where statements are made on the video. At what point is the person under arrest if the officer never takes them into custody and at what point is miranda required when they look at the pot and say it's theirs? We would have to show that they are not under arrest until the citation is handed to them--similar to when the cuffs are applied? It seems like there will be a lot of openings for arguments in court on these cases....more work in litigation when they were not "important" enough to be taken to jail over night in the first place?

First, this legislation only applies to residents of the county where the arrest occurs. It will probably only be used for POM and DWLI cases.

The police chiefs in my small county are planning to take the defendant to the police station, fingerprint and photograph the defendant, and then release the defendant with a citation that includes a future court date written on the citation. If they do not show up, a warrant will be issued for their arrest. If they appear, a CR-43 will be completed in court as is done in other summons situations.

The idea is to get the police officer back on patrol to make other cases.

Ken,
What judge are they required to appear before? Will they appear before a JP who will magistrate them and "may" set a PR bond per the amended statute? Or are they cited to appear before the County Judge? One way or the other, I'm assuming the officers will have to know when the JP, Muncipal Judge, or County Judge will be holding court so that information might be included on the citation.

That makes sense--so the administrative issues get started but the arrestee gets a citation there rather than going into the jail population. That's a simple way to handle it--no adjusting magistration or moving finger print machines to the courthouse, etc. And quicker for the officers. That seems to cover all the bases, they are still taken into custody and arrested, but the citation happens at the jail rather than booking in.

And I suppose the words of the statute say "instead of taking before a magistrate" the citation can be issued, so we won't have a need to wait for a magistrate--so they won't need to come back in the morning or whenever a mag is available? Is there any other reason why a magistrate would be required within 48 hours than to set a bond? Or do you then just get the process started as in any other case where the defendant has bonded out except they've never been told their rights--that will be taken care of, too, because we won't be able to talk to any defendants until the judge has admonished them of their rights--so they'll hear their rights before talking to us in court.

Ken,

What about sending in the arrest to CJIS (normally done by the jail)? Is each agency going to send in their fingerprints and CJIS info to start the Criminal history? If not, who is going to report the "jailing" information?

Is your court date within the 48 hours to appear before a Magistrate? Otherwise, how does the citation comply with this statute?

Who is going to issue your warrant when they don't appear? What type of warrant will it will?
Is it a warrant for FTA or for the original offense? Can it go in TCIC? What about identity issues?

In our case, we have over 26 reporting police agencies and too many judges/magistrates that don't know the county court docketing procedures. Because of these concerns and many others, our county policy will be that we will NOT accept a case "arrested" by citation.

We have not finalized all this yet, but are planning to give all the officers a list of county court dates. We will tell them to set the court date for 60 days from date of arrest which gives us time to get the paperwork, file the case,place it on the docket, etc.

The defendant will not appear before a magistrate until the court date, as is contemplasted by the new legislation; the county court judge will go through the new waiver of attorney procedure or appointment of attorney procedure if the defendant appears without an attorney.

We are also thinking about placing a thumbprint on the back of the original copy of the ticket for later ID. In any event we will have the videotape for ID pruposes, if necessary. Remember that they are a county residents.

When the defendant apears in county court, we will complete the CR-43 and fingerprint the defendant, just as we do now for defendants summoned in hot check cases. This send this in to DPS and it then becomes a part of their criminal history.

If the defendant fails to appear, a warrant will be issued for his/her arrest as an FTA on the same case. I think this procedure will work well in small counties.

I have encouraged my law enforcement agencies to establish a standard policy to avoid charges of favoritism, profiling, etc. We have a meeting in two weeks to finalize things. Perhaps they will choose to apply it only to first offenders. That is still to be decided.

As those of you who have attended our legislative update know, this is one of the major topics discussed at that program due to all the unanswered questions: is it still an arrest? Does the defendant need to be magistrated? When does the defendant get booked to start the criminal history process? Etc.

At our seminars, we've been recommending that law enforcement, prosecutors, and misdemeanor courts all work together to come up with a system agreeable to everyone, and if one of those legs of the stool object to the practice, that it be shelved for now -- after all, issuing "citations" (which are not really citations, but more likes summonses) may help law enforcement, but if the courts aren't ready to handle it, it will be a mess.

Ken's program for Colorado Co. sounds like a good suggestion, but it is really no different than using peace officer bonds (which have been on the books for decades). Note that in El Paso, that practice is the subject of a lawsuit by the ACLU, et al., who are objecting to the failure to magistrate and appoint counsel (when appropriate) after booking. That will bear watching.

I think this bill will be much easier to implement in rural counties; they may become good incubators for successful policies that can then be duplicated in larger jurisdictions. But I still say there is nothing wrong with an officer documenting the facts, not making an arrest, and then referring the case to the local prosecutor to make the charging decision, after which a warrant or summons can be issued -- it avoids all of the problem raised by HB 2391.