DUTIES OF A MAGISTRATE Presented by: Judge Suzan Thompson Justice of the Peace, Precinct #2 Matagorda County, Texas sthompson@co.matagorda.tx.us
Warning Defendants of Their Rights and Setting Bail
WHO ARE MAGISTRATES? Judge Judy
WHO ARE MAGISTRATES? Webster defines a magistrate as: An official entrusted with administration of the laws as: A) a principal official exercising governmental powers over a major political unit (as a nation) B) a local official exercising administrative and often judicial functions C) a local judiciary official having limited original jurisdiction especially in criminal cases.
What is a Magistrate s Court? Webster defines Magistrates Court as: A court that has minor civil and criminal jurisdiction
WHO ARE MAGISTRATES? The Texas Code of Criminal Procedure Article 2.09 defines a Magistrate as;
Each of the following officers is a Magistrate within the meaning of this Code: The Justices of the Supreme Court, The Judges of the Court of Criminal Appeals, The Justices of the Courts of Appeals, The Judges of the District Court, The Magistrates appointed by the Judges of the District Courts of Bexar County, Dallas County or Tarrant County that give to criminal cases, the criminal law hearing officers for Harris County appointed under Subchapter L, Chapter 54, Government Code, the Magistrates appointed by the Judges of the Dallas or Tarrant County, The Masters appointed by the Judges of the District Courts and the County Courts at law that give preference to the criminal cases in Jefferson County, the Magistrates appointed by the Judges of the District Courts and the statutory County Courts of Williamson County, the Magistrates appointed by the Judges of the District Courts and Statutory County Courts that give preference to Criminal Cases in Travis County, the County Judges, the Judges of the County Courts at law, Judges of the County Criminal Courts, the Judges of Statutory Probate Courts, the Associate Judges appointed by the Judges of the Statutory Probate Courts under Subchapter 54, Government Code, THE JUSTICES OF THE PEACE, the Mayors and recorders and the Judges of the Municipal Courts of Incorporated cities or Towns.
DUTY OF MAGISTRATES The Texas Code of Criminal Procedure Article 2.10 defines Duty of Magistrates as; It is the duty of every Magistrate to preserve the peace within his jurisdiction by the use of all lawful means; to issue all process intended to aid in preventing and suppressing crime; to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment.
Article 15.17. Duties of Arresting Officer and Magistrate When an officer makes an arrest, or person having custody of the arrested person, how long does the person in custody have before he has to be brought before a Magistrate? A) When ever they want to or have time B) No later than 24 Hours C) Without unnecessary delay, but no later than 48 Hours after the person is arrested
C) Without unnecessary delay, but no later than 48 Hours after the person is arrested
Article 15.17. Duties of Arresting Officer and Magistrate Can the Magistrate conduct the magistrate warning by closed circuit television? YES
Article 15.17. Duties of Arresting Officer and Magistrate Can the Magistrate conduct the Magistrate warning by phone because you just don t have time to go the jail to conduct the warning in person or by closed circuit television? NO
ANSWER Under Article 15.17.(a); The arrested person may be taken before the magistrate in person or the image of the arrested person may be broadcast by closed circuit television to the magistrate.
Warning Defendants of their Rights
Why should the accused be warned of their rights? The requirements of providing an accused with these warnings was mandated by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966). Miranda has since been incorporated in the statutes of every state; in Texas it is found in the Code of Criminal Procedure. (Art. 15.17, V.A.C.C.P.)
Article 15.17. Duties of Arresting Officer and Magistrate Art. 15.17. (a) (continued) If necessary to provide more expeditiously to the person arrested the warnings described by this article, before a magistrate in a county bordering the county in which the arrest was made.
Article 15.17. Duties of Arresting Officer and Magistrate When warning the arrested person of their rights, what shall be informed? 1) The magistrate shall inform in clear language the person arrested, either in person or by closed circuit television, of the accusations against him and of any affidavit filed therewith,
Article 15.17. Duties of Arresting Officer and Magistrate 2. of his right to retain counsel, 3. of his right to remain silent, 4. of his right to have an attorney present during any interview with peace officers or attorney s representing the state, 5. of his right to terminate the interview at any time, 6. and of his right to have an examining trial.
Article 15.17. Duties of Arresting Officer and Magistrate 7. The Magistrate shall also inform the person arrested of the person s right to request the appointment of counsel if the person cannot afford counsel. 8. The Magistrate shall inform the person arrested the procedures for requesting appointment of counsel.
Article 15.17. Duties of Arresting Officer and Magistrate 9. if the person does not speak and understand the English language or is deaf, the Magistrate shall inform the person in a manner consistent with Articles 38.30 and 38.31, as appropriate. (Article 38.30 deals with Appointment of interpreter when the English language is not understood) (Article 38.31 deals with Interpreters for deaf person)
Article 15.17. Duties of Arresting Officer and Magistrate 10. The Magistrate shall ensure that reasonable assistance in completing the necessary forms for requesting appointment of counsel is provided at the same time.
Article 15.17. Duties of Arresting Officer and Magistrate 11. If the person arrested is indigent and requests appointment of counsel and if the magistrate is authorized under Article 26.04 to appoint counsel for indigent defendants in the county, the magistrate shall appoint counsel in accordance with Article 1.051.
Article 15.17. Duties of Arresting Officer and Magistrate (and) If the Magistrate is not authorized to appoint counsel, the Magistrate shall without unnecessary delay, but not later than 24 hours after the person arrested request appointment of counsel, transmit, or cause to be transmitted to the court or to the courts designee authorized under Article 26.04 to appoint counsel in the county, the forms requesting the appointment of counsel.
Article 15.17. Duties of Arresting Officer and Magistrate The Magistrate shall also inform the person arrested that he is not required to make a statement and that any statement made by him may be used against him. The Magistrate shall allow the person arrested reasonable time and opportunity to consult counsel and shall, after determining whether the person is currently on bail for a separate criminal offense, admit the person arrested to bail if allowed by law.
Article 15.17. Duties of Arresting Special note: Officer and Magistrate A closed circuit television system may not be used under this subsection unless the system provides for a two-way communication of image and sound between the arrested person and the magistrate. A recording of the communication between the arrested person and the Magistrate shall be made.
Article 15.17. Duties of Arresting Officer and Magistrate The recording shall be preserved until the earlier of the following dates: (1) the date on which the pretrial hearings ends; or (2) the 91 st day after the date on which the recording is made if the person is charged with a misdemeanor or the 120 th day after the date on which the recording is made if the person is charged with a felony. The counsel for the defendant may obtain a copy of the recording on payment of a reasonable amount to cover the cost of reproduction.
Setting Bail Bail is the security given by a defendant that the defendant will appear before the court and answer the accusation brought against the defendant. {Art. 17.01}
The purpose of bail is to obtain the release of the defendant from custody and to secure the defendant s presence in court at the time of trial. {Ex parte Milburn, 8S.E. 3d 422, 424 (Tex. App. Amarillo 1999, no pet).}
There are no fixed rules for setting the amount of bail. In exercising discretion concerning the amount of bail, the court, judge, magistrate or officer taking the bail must be governed by the Constitution and by the following rules:
1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with. 2. The power to require bail is not to be so used as to make it an instrument of oppression. 3. The nature of the offense and the circumstances under which it was committed are to be considered in determining the bail.
4. Ability to make bail is to be regarded, and proof may be taken upon this point. 5. The future safety of a victim of the alleged offense and the community shall be considered. 6. Additionally, the Constitution prohibits excessive bail. [Tex. Constitution. Art 1, 13).
The proper amount of bail rest largely in the discretion of the trail judge. In exercising this discretion, the judge may be guided by such considerations as: 1. The defendant s criminal record; 2. The nature of the offense and the circumstances under which it was committed; 3. The ability or inability of the defendant to make bail.
BOND CONDITIONS 17.40 (a) CCP..a magistrate may impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.
Bond Conditions 17.43 CCP Home confinement and electronic monitoring under the supervision of an agency designated by the magistrate
Art. 17.44. HOME CONFINEMENT, ELECTRONIC MONITORING, AND DRUG TESTING AS CONDITION. (a) A magistrate may require as a condition of release on bond that the defendant submit to: (1) home confinement and electronic monitoring under the supervision of an agency designated by the magistrate; or (2) testing on a weekly basis for the presence of a controlled substance in the defendant's body.
(c) The magistrate may revoke the bond and order the defendant arrested if the defendant: (1) violates a condition of home confinement and electronic monitoring; (2) refuses to submit to a test for controlled substances or submits to a test for controlled substances and the test indicates the presence of a controlled substance in the defendant's body; or (3) fails to pay the costs of monitoring or testing for controlled substances, if payment is ordered under Subsection (e) as a condition of bond and the magistrate determines that the defendant is not indigent and is financially able to make the payments as ordered.
Procedure to Revoke Bond When a defendant violates conditions of bail the prosecutor files a request for hearing and motion for revocation of the bond. A hearing is scheduled (with the DA and the PTS (Adult Probation) Evidence is presented as in any other hearing or trial
Magistrate finds by a preponderance of the evidence that the violation occurred. Shall revoke the bond and order the defendant in custody immediately. Written order for new bond amount committed to jail until that bond is made AND New bond conditions written.
Old bond goes away and the sureties are released from liability, however, A discharge from any future liablity on the bond does not discharge any surety from liability for previous forfeitures on the bond.
Bond Conditions Judge signs order Defendant signs order Pre Trial Services Division gets a copy District Attorney gets a copy Bondsman gets a copy (we fax from the jail to DA and PTS) Jail gets a copy
All expenses paid by Defendant 17.44 Also provides that any drug testing, electronic monitoring including Ignition Interlock Devices shall be paid by the Defendant
521.2465 - Texas Transportation Code When issuing bail conditions when required or otherwise on DWI's requiring the defendant to install an ignition interlock device, do the following: Fax to DPS at 512-424-2800 BECAUSE! DPS receives a notice that an Ignition Interlock Device is mandated by a court - Defendant must pay $10 to DPS and will issue a restricted license AUTHORIZING that the person can only drive a m/v with an IID on the MV.
Mandatory Bond Conditions 17.441- DWI 1 st offense conditions of bond determined by the magistrate (Remember bond conditions can be for ANY offense) DWI 2 nd offense MANDATORY bond conditions with IGNITION INTERLOCK DEVICE DWI 3 rd or more MANDATORY
Mandatory Bond Conditions 17.41 (b) Mandatory for offense Penal Code chapter 21 sexual offenses Chapter 22 Assaultive offenses 25.02 Prohibited sexual conduct and 43.25 Sexual Performance by a child Committed against a child younger than 14 years of age.
Juvenile Magistration Juvenile magistration is similar to magistration process for adults, and its purpose is the same. Magistration of defendants of any age is intended to inform defendants of their rights, set bail, and if necessary, to appoint counsel. Juvenile magistration adds to this process certain procedures designed to further safeguard the rights of the juvenile in light of their age, and to ensure their understanding of their rights.
Child refers to a person who is: 1. 10 years of age or older and under 17 years of age; or 2. 17 years of age who is alleged or found to be engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17. {51.02(2). V.A.F.C.}
Warning Juvenile Defendant of Rights 1. A juvenile brought before a magistrate must receive a warning of the juveniles right s set out as follows: The child may remain silent and not make any statement at all and any statement that the child. {51.095(a)(1)(A)(i), V.A.F.C}; The child has the right to have an attorney present to advise the child either prior to any questioning or during the questioning.
If the child is unable to employ an attorney, the child has the right to have an attorney appointed to counsel with the child before or during any interviews with peace officers or attorneys representing the state. The Child has the right to terminate the interview at any time; and The statement must be signed in the presence of a magistrate by the child with NO law enforcement officer or prosecuting attorney present; and The magistrate must be fully convinced that the child understands the nature and contents of the statement and, if a statement is taken, that the child is signing it and waiving these rights knowingly, intelligently, and voluntarily. {51.095(a)(B)(i)-(ii), and. V.A.F.C}
If a statement is taken, the magistrate must sign a written statement verifying the foregoing requisites have been met. {51.095(a)(1)(B)-, V.A.F.C.}
Special Note: A magistrate may require a bailiff or a law enforcement officer if a bailiff is not available to be present if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer may not carry a weapon in the presence of the child. {51.095(a)(1)(B)(i), V.A.F.C.}
Special Note: A juvenile law referee or master may perform the duties imposed on the magistrate under Section 51.095, V.A.F.C, without the approval of the juvenile court if the juvenile board of the county in which the statement of the child is made has authorized a referee or master to perform the duties of the magistrate.
Special Note: The magistrate must certify that the magistrate has examined the child independent of any law enforcement officer or prosecuting attorney, except as required to ensure the personal safety of the magistrate or other court personnel, and has determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntary waived the stated rights. {Sex. 51.095(a)(1)(D), V.A.F.C.}
Taking the Statement of a Juvenile In Writing or Orally The statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if the following criteria are met.
1. The statement is made in writing: While the child is in a detention facility or other place of confinement; While the child is in the custody of an officer; or During or after the interrogation of the child by an officer if the child is in the possession of the Department of Protective and Regulatory Services and is suspected to have engaged in conduct that violates a penal law of this state. {51.095(a) and (d), V.A.F.C.}
2. The statement shows that the child has at some time before the making of the statement received from a magistrate the warning of rights described above. {51.095(a)(1), V.A.F.C.}
3. The magistrate certifies that the magistrate has examined the child independent of any law enforcement officer or prosecuting attorney, and has determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights. {51.095(a)(1)(B)-(D), V.A.F.C.}
4. Alternatively, the statement is made orally and the child makes a statement of facts or circumstances that are found to be true, and tend to establish the child s guilt, such as the finding of secreted or stolen property, or the instrument with which the child state the offense was committed.
The statement was res gestae of: The delinquent conduct; or The conduct indicating a need for supervision; or The arrest. {51.095(a)(3), V.A.F.C.}
Special Note: Res gestae means a spontaneous remark made concurrently with an incident so that it carries a certain degree of credibility and is admissible because of its spontaneity. [Black s Law Dictionary 1305 (6 th ed 1990).]
6. The statement is made: In open court at the child s adjudication hearing; Before a grand jury considering a petition that the child engaged in delinquent conduct; or At a preliminary hearing concerning the child held in compliance the Family Code, other than at a detention hearing. {51.095(a)(3)-(4), 54.01. V.A.F.C.}
7. Another scenario for oral statements is when the statement is made orally: While the child is in a detention facility or other place of confinement; While the child is in the custody of an officer; or During or after the interrogation of the child by an officer if the child is in the possession of the Department of Regulatory Services and is suspected to have engaged in conduct that violates a penal law of this state; and
8. The statement is recorded by an electronic recording device, including a device that records images, and: Before making the statement, the child is given the warning described in Subsection A by a magistrate; the warning is a part of the recording, and the child knowingly, intelligently, and voluntarily waived each right stated in the warning; Each voice on the recording is identified; and Not later than the 20 th day before the date of the proceeding, the attorney representing the child is given and accurate copy of each recording of the child. {51.095(a)(5), V.A.F.C.}
Closing the Recording Loop Hole Section 51.095, Family Code (f) A magistrate who provides the warnings required for a videotape statement may at the time the warnings are provided request by speaking on the tape recorder that the officer return the child and the videotape to the magistrate at the conclusion of the process of questioning. The magistrate may then view the videotape with the child or have the child view the videotape with the magistrate to determine whether the child s statements were given voluntarily.
If the magistrate uses the procedure described by this subsection, a child s statements is not admissible unless the magistrate determines that the statement was given voluntarily.
Adding this section to the code, it authorizes a magistrate who is giving juvenile warnings for a videotaped interrogation to require the officer to return the child and videotape to the magistrate for a determination of voluntariness. If a magistrate uses this procedure, a child s statement is not admissible unless the magistrate determines that the statement was given voluntarily.
Under the former law, children s whose confessions were recorded by mechanical means were not provided the benefit of a magistrate s determination of voluntariness. Such determinations are made when a juvenile s confession is made in writing.
Subsection (f) permits, but does not require, a magistrate who is giving juvenile warnings for a videotape interrogation to require the officer to return the juvenile and videotape to the magistrate for a determination of voluntariness.
Magistrates may use this authority sparingly and only in cases where there may be reason for concern about the child s capacity for making a statement voluntarily.
Special Note: There is a Family Code requirement that a person taking a child into custody shall promptly give notice of the person s action and a statement of the reason for taking the child into custody to the child s parent, guardian, or custodian.
Questions?