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One Response to 01-09-12 Rule of Law

1. 

   Jeff says:

   January 12, 2012 at 8:05 pm

   Eddie begins by going through exactly when various statutes invoke, at what point on a traffic stop. Immediately upon the stop the officer is applying Ch. 543.001 TC – Power to arrest without warrant any person found violating a section of this subtitle (Subtitle C). Too often, the officer jumps to a presumption and legal conclusion that because you are in a car you are moving in transportation. Only two ways out – a tix, or arrest that must abide by 543.

   First scenario, tix. Releases you from custody. If you show up as you are supposed to, appearance immediately invokes 15.17(g) CCP. (Ch 15, Arrest With Warrant)

   Second scenario, cop takes you to jail. Still req’d by 543 to take you before magistrate. 14.06(b) or (c) (Ch. 14, Arrest Without Warrant) 14.06(a) directs to immediately follow 15.17(g), but judges think this does not apply to them. But 15.17 mandates a list of several things the judge must do but which they rarely do. First, inform you of your rights. Second, jurisdictional issues. Texas Constitution. Art. 5 Sec. 12 (b) “An indictment or information invests the court with jurisdiction of the cause.” Period. Courts have declared unilaterally, w/o Const or statutory authority, stated that a complaint is sufficient for lower prosecutions. Art 1 Sec 29 says that a statute that conflicts with any provision of the Constitution, most especially the Bill of Rights, then that decision is void.

   A reading of 15.17 shows that a minimum of four court appearances are required. 1) the magistration; 2) examining trial; 3) arraignment, wherein the magistrate is required to provide a written order and give a copy to defendant; and 4) trial. Any pretrial motions, a fifth appearance between arraignment and trial. This is how it’s happening vs how it’s supposed to be done: the officer sets an appearance on the tix. Minimum must be 17 days (def cannot file w/in 7 days of trial, but must have at least 10 days to make filings) Officers often write for next day, 10 days, whatever. This is where jurisdiction problems arise: courts do not have jurisdiction to even do a magistration or examining trial. (Remember what vests the court with jurisdiction.) There is no complaint yet written! If probable cause is found at examining trial, then an information is written (or should already exist) and probable cause proceeds for purpose of arraignment. If there were a complaint, the court would have jurisdiction to take a plea and hold an arraignment. But in traffic cases there is no complaint, there is no charging instrument. Courts have skipped 15.17 examining trial and gone straight to arraignment. So, how is a magistrate vested with jurisdiction to take the plea when there is no issue before the court? No complaint, then no indictment or information and no authority to go to trial. So how is it that the court is taking a plea at an arraignment, and how is it that people are arriving at trial having never seen the complaint? Because the people haven’t taken the time to learn the rules.

   Or, to document them. When writing motions, don’t point out just the issue and say that this is being done wrong. Bring in all other statutes or rules in para materia to create no other way to interpret the matter. Then, when DA tries to argue some different interpretation s/he has to address the corpus of the matter and not just try to weasel out of one point. And courts, especially appellate, will look to just the part of the statute they need to get the result they want.

   Ramon in Texas. Wants to know how to assert ‘not in transport’ to the judge. Eddie says this is done through objection each time the prosecutor invokes a commercial term. Objection – 1) “assumes facts not in evidence,” 2) “not previously agreed to, and 3)”requires a legal conclusion by the fact witness.” Don’t argue ‘not in transportation’ specifically. They are presuming a capacity.

   Dennis in Texas. After an accident, another DPS officer than the one at the scene sent a speeding ticket through the mail. Reasoned that while no one saw the traveler speeding, traveler must have been doing so or he wouldn’t have crashed.

   Patrick in Texas. “Complaint and Affidavit”, and signed by another officer. Eddies says to check and see if it complies with complaint requirements at CCP 45.019. And, where is the law that says another officer can administer the oath on complaint? 708.105 citation form reqs, too.

   Patrick checked the court record; no complaint. Eddie says to file Affidavit of Appearance. Whilst any document filed then would demonstrate appearance, the A of A asserts facts we want in the record such as that no docs in the record vesting the court with jurisdiction. Eddie goes over some initial docs to file, including M to Quash Citation.

   Samir in Texas. Again, a retroactively written tix. Eddie advises that 543.001 states that officer must find the facts asserted, not charge them later. Eddie also discovers that the citation violates 708.105

   Eddie brings up to date on his speeding ticket. No doubts about beating the ticket, but is waiting for them to dismiss after filing the complaint so he can file for malicious prosecution. And, thereafter, federal suit for attempting to compel to be in commerce against his will. Help Eddie out with legal expenses!

   Caller Ryan. Questions how Louisiana has separate license plates for commercial and travel. Also, court was closed when Ryan appeared per the citation. Ryan was threatened with a warrant if he did not plea thereafter. Eddie points out that no warrant can issue for Class C misdeameanor for FTA, even if someone signed the tix. Court wants to re-set an arraignment date, but arraignment requires an order. So how can they hold an arraignment? An arraignment is the only place a plea can take place. And, CH 45, when dealing with justice and muni courts, def can enter a plea only after a jury is empaneled. FTA begins at 543.009, then 15-17(g), then 27.14(d).