South Texas College of Law, Annotations (Houston, Tex.), Vol. 7, No. 9, April, 1979 Page: 7 of 9
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6 - ANNOTATIONS — April 1979
Texas Speedy Trial Act
Continued from page 5
"A Court shall grant a Motion
to set aside an indictment, in-
formation, or complaint if the
state is not ready for trial within:
(1) 120 days from the com-
mencement of the criminal action
on a felony
(2) 90 days from the com-
mencement of the criminal action
on a Class A Misdemeanor (or
DWI)
(3) 60 days from the com-
mencement of the criminal action
on a Gass B Misdemeanor
(4) 30 days from the com-
mencement of the criminal action
on a Class C Misdemeanor."[18]
This section, obviously, in stern
language, lets a prosecuting
attorney know that he must
prepare to go to trial within the
express length of time or the
court will discharge the defend-
ant. This puts a new and burden-
some pressure on criminal attor-
neys. The words "state" and
"ready" are both subject to
further interpretation. On the one
hand, "state" may indicate the
prosecuting attorney. However, it
is more reasonable that the word
"state" also includes the court.
After all, it is the court who
dispenses punishment. This
raises the issue of crowded
dockets which could definitely be
a time barrier to the state. If
"state" includes the court, then
crowded dockets may be no
acceptable delay. Some believe
that if over-crowded court dockets
were to have been a legitimate
exclusion to the speedy trial time
requirements, it would have been
mentioned under section 4 with
the other exclusions.[19]
In a felony case, the time
allotted' for preparation is 120
days from the commencement of
a criminal action.[20] This in-
dicates that the state must be'
"ready" for trial within 120 days
if the case is a felony. At this
point, prosecuting attorneys may
feel that if they announce
"ready," that is all that is
actually required by the wording
in the Article. The Article does
not say that the state must have a
trial within 120 days. In this
regard, the clause is vague. Most
prosecutors will be more than
willing to announce "ready."
However, this will not necessarily
mean the trial will immediately
follow. As mentioned previously,
legitimately crowded dockets may
make trial impossible. Judge
Miron A. Love has stated that
there are many ways to be
"ready" without actually going to
trial. The state may even begin to
impanel a jury and this would
meet the requirements.[21]
In a Class C Misdemeanor
case, the Article only allows 30
days from the commencement of
a criminal action for the state to
be ready for trial. The Justice of
the Peace Courts will be hard put
to handle all of these cases, such
as traffic violations, worthless
checks, and the like, within 30
days. It is hard to see how, at
least under the present system,
this can be done. Since these
crimes are punishable by a fine,
many cases will be dismissed
resulting in a loss of revenue to
the counties. [22]
It is proper to consider at this
point the interests of society in
providing a speedy trial for the
accused. An extended delay will
undoubtedly increase the possi-
bility of loss or destruction of
evidence, and while "evidence
and witnesses disappear,
memories fade, and events lose
their perspective. "[23] These
factors will necessarily affect the
prosecution's motivation along
with corroding the case and
evidence when it finally goes to
trial, thus making a conviction
less likely. Rehabilitation is one of
the primary goals of punishment
and incarceration and a post-
ponement in trial will do nothing
more than delay the rehabilitative
process. None can deny that
speedy rehabilitation is in soci-
ety's best interest.
The delays caused by inade-
quate resources could be elimi-
nated by the states giving the
courts the extra manpower and
tools needed to try criminal cases
within the stipulated period of
time.
"If the state legislatures and
Congress are unwilling to do so it
may be possible for courts to
order the payment of such sums
under the theory that the legisla-
ture may not hinder the workings
of a co-equal branch of govern-
ment which must possess the
inherent power to determine and
compel payment of those sums of
money which are reasonable and
necessary to carry out its man-
dated responsibilities and its
powers and duties to administer
Justice . . ."[24]
According to the Act, criminal
action commences when an in-
dictment, information, or com-
plaint is filed in court, unless
prior to the filing, the defendant
is in custody or has been released
on bail, in which event the crimi-
nal action commences when he is
arrested. [25] This language is
very explicit. For a felony, the
District Attorney has 120 days
from the arrest or the filing of
indictment, information or com-
plaint, whichever comes first.
Now consider the effect of Article
17.151 — "Release Because of
Delay." Apparently this Article
further limits 32 A.02 in its
relationship to bail. It basically
states that a defendant must be
released on bail or personal bond,
if the state is not ready for trial
within:
(1) 90 days from the com-
mencement of his detention if he
is accused of a felony
(2) 30 days from the com-
mencement of his detention if he
is accused of a Class A Misde-
meanor or DWI
(3) 15 days from the com-
mencement of his detention if he
is accused of a Class B Misde-
meanor
(4) 5 days from the commence-
ment of his detention if he is
accused of a Class C Misde-
meanor. [27]
This means that for a potential
"high risk," dangerous defend-
ant, the state only has 90 days
from detention to prepare for
trial, or alternatively, to release
him on bail. To release someone
accused of a heinous crime would
bring insurmountable public
scorn, and, in many instances,
danger to society. The purpose of
this Article is to carry out the
concept of "innocence until
proven guilty. "[28]
Article 17.151 also states that
the state must be "ready" for
trial. If the state announces
"ready" but no trial takes place,
is this enough to retain the
accused in custody, or does the
state actually have to try the case
before they can keep him in cus-
tody, at least until the 120 days
required by the Speedy Trial Act
is up? No one seems to be able to
answer this question with cer-
tainty.
In the meantime, many attor-
neys and courts are seriously
confused and undoubtedly the
paperwork is increasing at a
record level. The state must keep
current records on all criminal
actions depending on (1) whether
or not the defendant is in custody
(in which case he must have trial
priority under 32A.01[29]), (2)
whether or not the state can risk
letting him out on bail (in which
case they must get him to trial
even sooner than required by the
Speedy Trial Act) and (3) whether
or not he is already out on bail (in
which case he still must be tried
within the time limits of the Act or
forever go free).
For example, if the state takes
into custody a potentially dan-
gerous criminal on a felony
charge, the state must be ready
for trial within 90 days or be ready
to release him. For each "high
risk" defendant who must be
tried within 90 days, there are
many others who are out on bail
but who must still be tried within
120 days. So, every time the state
gives trial priority to a defendant
in custody, they must push
another case back on the docket.
If those persons in custody are
always to be given priority plus
earlier trials to escape release
because of delay under Article
17.151, how is the state going to
find time to try those accused
felons who are out on bail within
120 days? Apparently, the legis-
lature's answer to this problem is
to try the dangerous criminals
first — do not delay. This, the
state can do. But this does not
solve the problem of finding time
to squeeze in the other defend-
ants before the limitations im-
posed by the Act mature.
For the courts, the paperwork
now required to keep up with all
the dates and new requirements
is overwhelming. Mrs. Ann Dees,
Court Administrator for Brazoria
County, says that there has been
a "dramatic increase in paper-
work in their court" and she
believes that the dockets will
begin to show a great increase
within a few months.[30] On the
same issue. Honorable Judge
William M. Hatten says:
"I fear not so much the lack of
time for trial as the increase in
paperwork. The courts and judges
are already over-burdened with
paperwork and now with all the
new deadlines, they will have a
much more difficult time keeping
up with it. The Speedy Trial Act
has given judges even more work.
There will be slip-ups. It's in-
evitable because we're all human.
Then, the defendant is going to
get out and go free. How will the
public feel then?"[31]
Apparently too, the grand jury
system in some Texas areas may
have to adjust. Not all counties
have a grand jury in session at all
times. If they take a defendant
into custody but must wait a
month or so to get an indictment,
this will cut their preparation time
even more. However, it should be
pointed out that indictments are
not usually refused where the
prosecution insists. Thus, he
could begin work on the case and
still have the grand jury meet just
once a month since he is almost
assured of getting the indictment.
Basic Provisions of Waiver and
Continuance Under The Act
According to the Act, "the
failure of a defendant to move for
discharge under the provisions of
this article prior to trial or the
entry of a plea of guilty consti-
tutes a waiver of the rights
accorded by the article. "[32]
Clearly, if the defendant pleads
guilty, all of his rights under the
Speedy Trial Act are automatical-
ly waived. The rights herein are
also waived if the defendant and
his attorney fail to move for
discharge prior to trial. This,
again, requires competence and
careful planning on the part of the
defense attorney because a
failure on his part to move for
timely discharge would leave him
wide open for liability under mal-
practice.
"Lawyer malpractice is the
most common cause of profes-
sional liability claims . . . Unfor-
tunately, there are many areas of
practice and numerous points in
each at which a critical date can
be missed. Insurance statistics
have not been collected or refined
to isolate the high exposure
missed statute situations. There-
fore, the attorney must develop
broad preventive techniques."
[33]
It has been noted that delay can
quickly reach the point where an
ethical violation occurs, and if the
attorney's procrastination causes
injury to the client's position a
malpractice claim is likely to be
made.[34] Defense attorneys are
up against the wall. They must try
the case or risk a malpractice suit
brought against them. "Where
an attorney's delay reaches a
point at which he can no longer
perform his duty to the client, the
cause of action for legal mal-
practice is complete. "[35]
The idea that a defendant must
move for discharge prior to trial
appears to be a relic from the
past. Under the old "demand-
rule" doctrine. "[36] a criminal
defendant could not obtain dis-
missal of his case for failure to
receive a speedy trial unless he
had previously demanded a
speedy trial and not received it.
This doctrine of "implied" waiver
was rejected by the U.S. Supreme
Court in 1972J37] stating that "a
defendant has no duty to bring
himself to trial; the state has that
duty as well as the duty of
insuring that trial is consistent
with due process . . ."[38] The
Court further held that the idea of
implied waiver of a fundamental
right was not proper because it is
not "an intentional relinquish-
ment or abandonment of a known
right or privilege."[39] Texas has
reinforced the rejection of the
demand waiver doctrine in its
own case law. "A defendant who
fails to demand a speedy trial
doesn't forever waive his right."
[40]
The Texas Speedy Trial Act
seems to step backward in
requiring the automatic waiver of
the right to a speedy trial if a
defendant fails to move for
discharge prior to trial time. It
indicates that the right to speedy
trial is forfeited by the defend-
ant's failure to request an earlier
trial than he gets. This doesn't
seem to adequately follow the
ruling of the United States
Supreme Court in Barker v.
WIngo. There the Court stated
that the speedy trial guarantee
makes it "impossible to pinpoint
a precise time in the process
when the right must be asserted
or waived, but that fact does not
argue for placing the burden of
protecting the right solely on the
defendant. "[41] The Texas Act
now places the burden of protect-
ing the right solely back on the
defendant and his attorney.
The courts have now provided a
written waiver of all rights under
32A.01, 32A.02, and 17.151, sub-
ject to the signature of defendant
and counsel in open court. These
are basically waivers by "con-
sent" of the defendant. Although
these waivers may initially elimi-
nate all problems on both sides
with compliance under the Act,
their future validity is open for
possible suspicion. Waivers may
be potentially dangerous as far as
lawyers' liability is concerned. If
his defendant gets convicted,
watch out! He better have a good
reason to waive and he better be
sure his client effectively con-
sented with full knowledge of his
rights. Of course, it may be
difficult to adequately explain the
full implications of the Act to a
defendant when even the attor-
neys are confused about the
meaning and application. A de-
fense attorney can safely seek a
continuance, but the signing of a
waiver is dangerous with respect
to future scrutiny by the Court of
Criminal Appeals.
The fact that the defendant can
so easily and readily waive the
provisions of the Act further
frustrates the basic purpose of
speedy trial. As Judge Hatten
states, "Speedy justice may very
well be a deterrent to crime. But,
how can it operate as a deterrent
when any defendant can so easily
waive the Act? If it was meant to
operate as a deterrent, then the
court should also be able to insist
on a speedy trial! At this point, it
is just a detriment to the
administration of justice. "[42] In
line with this, it is logical to
assume that if the Act is to ever
really be effective to both the
defendant and the state, the
written waiver will have to be
very carefully examined as to its
legal consequences.
If a lawyer waives, he may be
liable. Although there have been
relatively few cases dealing with
criminal malpractice, the courts
have basically followed the ordi-
nary rules of proving negligence.
"The ordinary rule that negli-
gence is actionable only where it
is the proximate cause of the
damage complained of is usually
applied in actions against attor-
neys for malpractice."[43] The
damage incurred in a criminal
case could be conviction for the
w
.J
4.
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Dies, David & Bettman, Gerald S. South Texas College of Law, Annotations (Houston, Tex.), Vol. 7, No. 9, April, 1979, newspaper, April 1979; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth144382/m1/7/: accessed May 30, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting South Texas College of Law.