For eons, this office, and I can only assume most prosecutors' offices), has made a practice of sending a memo to the jail when a decision is made not to prosecute an arrestee who is still in the sheriff's custody. The purpose, of course, is to advise the sheriff that since no prosecution will be had on the charges, there is no longer a reason to hold the subject. Recently, our sheriff has taken the position, (more along the lines that he "expressed a concern"), that Sec. 351.041 of the Local Government Code, requires that he hold all prisoners "suject ( and he reads "only") to an order of the proper court". Has anyone else faced this attack on prosecutorial discretion. Are we now forced to go to the JP upon whose examining docket the case resides, explain our position on not prosecution, and pray for an order from that court before the person can be released? Sounds crazy. I've done more research into the situation than I thought would be necessary, but have not been able to come up with more than general statements about how prosecutorial discretion is subject only to constitutional restraints. Nothing on this issue. Has anyone faced this before?ald@co.harrison.tx.us

We do one of two things: we refuse the case when presented for prosecution or dismiss the case. Reason given "best interest of justice".

We have jail cards here signed by someone of authority that are sent to the jail advising them what has happened to a D on a particular offense.

If the Case is refused, the detective who presented the case generally fills out and signs the card. If we dismiss a case pending, we fill out and an ADA signs the card.

Have had no problem here with this procedure, other than sometimes a detective may forget to send the card and they sit in jail until it is done. Our SO just makes sure they have something in writing telling them it is refused, dismissed, etc.

Thanks, Randall, it appears you do esentially the same thing on refusals as we do, and of course, dismissals ARE orders from a judge. But there is no "case" to dismiss at the intake stage.

In the big cities, DA's have whole departments that sit at the jail and "yea or nay" cases on the spot, resulting in immediate releases of prisoners. I know of no county that requires a judge's signature on a rejection at intake. Would like to hear if there are any.

It dawned on me that the Local Government Code provision applies to the actions of the Sheriff, not us. The prosecutor, not a judge, has the final say on whether to file a case. The action or, lack thereof, by the executive branch is just as much not our business as the decision whether to prosecute is not theirs. The unfortunate upshot of this situation, if it becomes official jail policy, is that we will be forced to send the notifications directly to the prisoner, and I doubt the Sheriff would be happy with the resulting discomfort, and possible civil liability, for holding folks in jail when they are not going to be prosecuted.

Thats a novel position for the sheriff to take. Most counties I've worked at the sheriff is hot for us to move the cases faster so he can get them out of his/her overcrowded jail ESPECIALLY if he had an inkling that we were going to pass on the prosecution.

I send a written request to recall the order of commitment for those in custody or the warrant for those not yet arrrested if I am declining a case. It includes an order to be signed by the JP who offices at our jail.

We also do an order to recall or dismiss a warrant in the event a case is not prosecuted. In the event its an on-sight arrest--will will obtain an order dismissing the commmitment.

This became an issue for us about a year ago. We had previously been getting our justices of the peace to sign dismissals when we refused an on-site arrest. However, we contacted all of our JPs and asked them if it was necessary in their eyes to actuall dismiss these cases and they agreed with us that there really was nothing to dismiss. Our office was simply refusing to prosecute the case. So, in conjunction with the Sheriff's Office and the JPs, we created an on-site refusal form (one for defendants on bond and one for defendants still in custody). If we refuse a case on a defendant still in jail, we send a refusal form to the Sheriff's Office with a copy to the JP and the Sheriff's Office releases the defendant. End of case. If the defendant is on bond, we just send a copy to the JP and the defendant or defendant's attorney, if they have one. End of case. We do not believe a dismissal is necessary and our JPs only want notice that the case has been refused so that they can close out their file. The process has worked without a hitch and we no longer have scores of dismissals that really were only refusals.

In the case of warrants, we still have the JP who signed the warrant sign a dismissal. Don't see a way around that.

Do many of you use some form of document when a case is "no billed"?.

I have a form that I fill out and have the grand jury foreman sign. It is filed with the district clerk and a copy sent to the jail, police agency, and defendant. E-mail me if you want a copy.

We file a motion for dismissal with the JP who found probable cause and who authorized the warrant/continued detention. He signs the dismissal and the guy is released from jail. Of course, if the grand jury no-bills the case, we just let the jail know and they release.

Although no document is arguably needed, I think it is a good idea to show a paper trail for a no bill. We do a motion to dismiss and file it with the magistrate that issued the warrant. Then we notify the jail to release.