Appendix — Rothgery v. Gillespie County

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APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-50267

WALTER ALLEN ROTHGERY, PLAINTIFF-APPELLANT,

Vv.

GILLESPIE COUNTY, TEXAS, DEFENDANT-APPELLEE.

June 29, 2007

Appeal from the United States District Court

for the Western District of Texas, Austin

[491 F.3d 293]

[294]

Before KING, WIENER, and OWEN, Circuit Judges.

KING, Circuit Judge:

In McGee v. Estelle, we held that a warrantless ar-

restee’s Sixth and Fourteenth Amendment right to counsel

does not attach in Texas when he appears before a magis-

trate for statutory warnings if prosecutors are unaware of

and uninvolved in the arrest and appearance. 625 F.2d 1206,

1208-09 (5th Cir. 1980). The district court in this case

reached a similar conclusion where the warrantless ar-

restee’s appearance involved not only statutory warnings,

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but also a probable cause determination by the magistrate

that was supported by a police officer’s affidavit accusing the

arrestee of committing the relevant offense. Because we

agree that the appearance in this case did not commence ad-

versary judicial proceedings for purposes of the Sixth and

Fourteenth Amendment right to counsel, we AFFIRM the

district court’s order granting summary judgment for Gil-

lespie County.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 15, 2002, officers of the Fredericksburg, Texas

Police Department arrested plaintiff-appellant Walter

Rothgery without a warrant on suspicion of being a felon in

possession of a firearm, which is a third-degree felony in

Texas. The suspicion was based on a criminal background

check indicating that Rothgery had been convicted of a fel-

ony in California. In fact, felony charges against Rothgery

in California had been dismissed after Rothgery completed a

diversionary program, and both sides agree that Rothgery

did not have a felony conviction.

Under the misimpression that Rothgery had a prior fel-

ony conviction, the officers booked Rothgery into the Gilles-

pie County Jail. Rothgery says that he requested in writing

the appointment of counsel at this point, though there is no

record of the request. The next morning, on July 16, Roth-

gery was brought before a Justice of the Peace (the “magis-

trate”) to be informed of the accusation against him and

[295] to be given statutory warnings under Article 15.17 of

the Texas Code of Criminal Procedure, which provides for

warnings generally equivalent to those required by Miranda

v. Arizona, 384 U.S. 436 (1966).' Rothgery signed a docu-

' Article 14.06 of the Texas Code of Criminal Procedure requires

that a person arrested without a warrant be taken before a magistrate

within 48 hours of arrest, at which point the magistrate must “immedi-

ately perform the duties described in Article 15.17.” TEX. CODE CRIM.

Proc. ANN. art. 14.06. Article 15.17, which also applies to those who are

arrested under warrant, requires that the magistrate inform the arrestee

of the accusation against him, of any affidavit filed against him, and of his

rights to retain counsel, to have counsel appointed for him if he cannot

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ment reflecting that the magistrate did so and that Roth-

gery stood “accused of the criminal offense of[] unlawful pos-

session of a firearm by a felon which will be filed in 21st Dis-

trict Court.” On the document, the magistrate swore that

“(t]he accused has announced the intention to waive right to

counsel at this time.” The magistrate set bond at $5,000.

The arresting officer also presented the court with an

affidavit titled “Affidavit of Probable Cause.” The form

document was filled in with the officer’s description of the

events leading up to the arrest and recited, “I charge that

heretofore, on or about the 15[th] day of July, 2002, in the

County of Gillespie and the State of Texas, Defendant, Wal-

ter A. Rothgery, did then and there commit the offense of

unlawful possession of a firearm by a felon—3rd degree fel-

ony.” Based on the affidavit, the magistrate found that

probable cause existed for Rothgery’s arrest, signing the

document under a portion of text stating, “I hereby ac-

knowledge I have examined the foregoing affidavit and have

determined that probable cause existed for the arrest of the

individual accused therein.” After the appearance, Roth-

gery posted a surety bond to obtain release from jail. The

bond agreement between Rothgery and the bonding com-

pany states, among other details of Rothgery’s arrest, that

“Rothgery stands charged by complaint duly filed in the Jus-

tice of Peace Court.”

Rothgery says that he repeatedly requested counsel in

the months following his release, but no counsel] was ap-

afford counsel, to remain silent, to have an attorney present during inter-

views with officers of the state, to terminate interviews at any time, and

to have an examining trial to probe the existence of probable cause. /d.

art. 15.17. The magistrate may also “admit the person arrested to bail if

allowed by law.” Jd.

? According to Rothgery, the magistrate told him that he would have

to waive his right to an attorney for purposes of the appearance if he

wanted to have bail set at that time, and that otherwise he would have to

wait in jail until an appointment was made. On the original typed docu-

ment, only the words “waive right to counsel” were underlined, and Roth-

gery says that the words “at this time” were also underlined by hand to

reflect this limited waiver.

pointed. On January 17, 2003, six months after his arrest, a

grand jury returned an indictment against Rothgery and he

was rearrested the next day. Rothgery was brought before

the magistrate again on January 19 and he again requested

counsel, but no attorney was appointed. On January 23, still

with no attorney, Rothgery was transferred to another jail

due to overcrowding at the Gillespie County Jail. Finally,

after Rothgery requested counsel yet again, a state district

judge appointed counsel on January 23, 2008. Once ap-

pointed, Rothgery’s counsel soon obtained records estiblish-

ing that Rothgery had not been convicted of a felony. He

moved to dismiss the charges, and the motion was granted

on April 30, 2003.

On July 15, 2004, Rothgery sued defendant-appellee Gil-

lespie County under [296] 42 U.S.C. § 1983, alleging that

the county violated his Sixth and Fourteenth Amendment

right to counsel by following a policy of denying appointed

counsel to arrestees released from jail on bond and by failing

to adequately train and monitor those involved in the ap-

pointment-of-counsel process. Rothgery’s contention is that

counsel should have been appointed for him after his first

appearance in the magistrate’s court on July 16, 2002, and

that the mistake underlying his arrest would have been dis-

covered had counsel been timely appointed. Gillespie

County moved for summary judgment on the ground that

Rothgery’s Sixth and Fourteenth Amendment right to coun-

sel did not attach until his indictment on January 17, 2003,

which marked the initiation of adversary judicial proceed-

ings against him. The district court granted the motion on

February 2, 2006, and issued a take-nothing final judgment.

Rothgery appeals.’

* We are indebted to the Solicitor General of Texas, Ted Cruz, who

filed an amicus curiae brief in this appeal at our request, and to Professor

George Dix of The University of Texas School of Law, who also filed an

amicus curiae brief.

‘

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Il. STANDARD OF REVIEW

We review a grant of summary judgment de novo, view-

ing all evidence in the light most favorable to the nonmoving

party and drawing all reasonable inferences in that party’s

favor. See Crawford v. Formosa Plastics Corp., 234 F.3d

899, 902 (5th Cir. 2000). “Summary judgment is proper

when the evidence reflects no genuine issues of material fact

and the non-movant is entitled to judgment as a matter of

law.” Id. (citing FED. R. Civ. P. 56(c)). “A genuine issue of

material fact exists ‘if the evidence is such that a reasonable

jury could return a verdict for the non-moving party.” /d.

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)).

Il. DISCUSSION

The Sixth Amendment, which is applicable to the states

through the Fourteenth Amendment,‘ provides in relevant

part that “{iJn all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his

defence.” U.S. CONST. amend. VI. This right “attaches only

at or after the time that adversary judicial proceedings have

been initiated . .. whether by way of formal charge, prelimi-

nary hearing, indictment, information, or arraignment.”

Kirby v. Illinois, 406 U.S. 682, 688-89 (1972) (citations and

footnote omitted). But we do not rely formalistically on the

label given to a particular pretrial event when determining

the point at which adversary judicial proceedings have been

initiated; instead, “the relevant time is when ‘the govern-

ment has committed itself to prosecute’ and ‘a defendant

finds himself faced with the prosecutorial forces of organized

* Gideon v. Wainwright, 372 U.S. 335, 342 (1963). For clarity, we will

refer only to the Sixth Amendment when discussing the right to counsel.

* After the Sixth Amendment right to counsel attaches, a defendant

is entitled to counsel at “critical stagcs” of the proceedings, absent a valid

waiver. See Michigan v. Jackson, 475 U.S. 625, 629-30 & n. 3, 632 n.5

(1986).

Gillespie County does not argue that the time between Rothgery’s

release on bond and his indictment six months later did not constitute a

critical stage of the prosecution, and we do not decide that issue here.

”

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society.”” [297] Caver v. Alabama, 577 F.2d 1188, 1195 (5th

Cir. 1978) (quoting Kirby, 406 U.S. at 689); see also Lomax v.

Alabama, 629 F.2d 413, 415 & n.3 (5th Cir. 1980) (rejecting

the use of “purely formal application of quantitative criteria”

to determine when adversary judicial proceedings com-

menced).

Following this approach in Lomaz v. Alabama, we in-

structed that “reliance should be placed on the sometimes

elusive degree to which the prosecutorial forces of the state

have focused on an individual.” 629 F.2d at 415. Accordingly,

we held that an arrest, under a warrant secured with a mag-

istrate’s probable cause determination, did not commence

adversary judicial proceedings because the record did not

reflect any prosecutorial awareness of or involvement in the

arrest, nor any participation by prosecutors in preparing the

“complaint affidavits used to secure” the warrant. J/d. at

415-16. Similarly, we held in McGee v. Estelle that in Texas,

“an adversary criminal proceeding has not begun in a case

where the prosecution officers are unaware of either the

charges or the arrest.” 625 F.2d 1206, 1208 (5th Cir. 1980).

We thus concluded that a warrantless arrestee’s lineup and

appearance before a magistrate for Article 15.17 warnings

did not initiate adversary judicial proceedings, as prosecu-

tors were unaware of and uninvolved in either event.’ Jd. at

1208-09.

°“We look to state law to determine when adversarial proceedings ;

against the accused have commenced,” Felder v. McCotter, 765 F.2d 1245,

1247 (5th Cir. 1985), abrogated on other grounds by Patterson v. Jilinois,

487 U.S. 285, 295-96 & n.8 (1988), although the ultimate Sixth Amendment

consequences of certain state procedures is a matter of federal law.

” While the opinion did observe at one point that an Article 15.17

warnings appearance before a magistrate “does not involve counsel for the

state, nor is it a formal charge,” McGee, 625 F.2d at 1209 (emphasis

added), we do not read that to imply that formal charges may exist in

Texas without any prosecutorial knowledge or involvement. In context,

the statement merely clarified that prosecutors do not participate in such

an appearance, nor are formal charges filed. We have not held that prose-

cutors must actually file the document that initiates adversary judicia!

proceedings, see, e.g., Felder, 765 F.2d at 1246, 1247-48 (noting that a po-

lice officer’s filing of an affidavit and criminal complaint commenced ad-

It is undisputed in this appeal that the relevant prosecu-

tors were not aware of or involved in Rothgery’s arrest or

appearance before the magistrate on July 16, 2002. There is

also no indication that the officer who filed the probable

cause affidavit at Rothgery’s appearance had any power to

commit the state to prosecute without the knowledge or in-

volvement of a prosecutor. Compare TEX. CODE CRIM.

PROC. ANN. art. 2.13 (limiting the role of a police officer, in

relevant part, to notifying the magistrate of an offense and

arresting offenders), with id. art. 2.01-.02 (designating dis-

trict and county attorneys as the representatives of the

state in all criminal cases and proceedings); cf. Clawson v.

Wharton County, 941 S.W.2d 267, 272 (Tex. App.-Corpus

Christi 1996, writ denied) (recognizing that “the decision not

to prosecute is the quintessential function of a prosecutor”

(dash omitted)). And Rothgery provides no reason why the

officer’s acts should somehow be imputed to the prosecutor’s

office or should otherwise be interpreted to signal that

Rothgery was opposed by the prosecutorial forces of the

state. Consequently, the summary judgment evidence fails

to establish that adversary judicial proceedings had been

initiated against Rothgery during his magistrate appear-

ance.

Rothgery raises several arguments against this conclu-

sion. First, he contends that McGee’s holding on prosecuto-

rial involvement [298] is not good law, as the Supreme Court

has twice found adversary judicial proceedings to have been

initiated without mentioning whether prosecutors were in-

volved. See Michigan v. Jackson, 475 U.S. 625, 629 n3

(1986); Brewer v. Williams, 430 U.S. 387, 399 (1977). How-

ever, neither case addressed the issue of prosecutorial in-

volvement, much less the relevance of prosecutorial in-

volvement under Texas law. Further, both cases involved a

defendant who was arraigned on an arrest warrant, and an

arraignment is one of the specific examples given in Kirby of

versary judicial proceedings), but merely that adversary judicial proceed-

ings cannot initiate without some prosecutorial awareness or involvement,

McGee, 625 F.2d at 1208; see also Lomar, 629 F.2d at 415.

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pretrial events that initiate adversary judicial proceedings.

Although Rothgery argues that the arraignment in Jackson

was functionally no different than his appearance here, the

state supreme court opinion preceding Jackson establishes

that the prosecutor’s office approved and issued the com-

plaints and warrants that led to the arraignment. See Peo-

ple v. Bladel, 365 N.W.2d 56, 71-72 (Mich. 1984). And while

the extent of prosecutorial involvement in Brewer was un-

addressed, it does not appear that the state contested that

adversary judicial proceedings had begun or otherwise

raised the issue. See Brewer, 430 U.S. at 399 (“The State

does not contend otherwise.”). At most, the opinions are

neutral on the point, which is simply not enough for us to

ignore our binding authority."

Rothgery also argues that McGee is inapplicable here,

as the appearance before the magistrate in McGee only in-

volved the recitation of statutory warnings, whereas Roth-

gery’s appearance included statutory warnings and a prob-

able cause determination that was based on a police officer’s

affidavit. Rothgery contends that the affidavit, which re-

lated the events underlying the arrest and stated that the

officer “charge[d]” that Rothgery committed the offense of

being a felon in possession of a firearm, constituted a “com-

plaint” or an otherwise formal charge that initiated adver-

sarial proceedings.’

* According to Rothgery, United States v. Gouveia also affirmed that

prosecutorial involvement is unnecessary because it used the word “or”

when observing that it had “extended an accused’s right to counsel to cer-

tain ‘critical’ pretrial proceedings . . . recognizing that at those proceed-

ings, ‘the accused [is] confronted, just as at trial, by the procedural sys-

tem, or by his expert adversary, or by both.” 467 U.S. 180, 189 (1984)

(citing United States v. Wade, 388 U.S. 218 (1967), and quoting United

States v. Ash, 413 U.S. 300, 310 (1973)) (citations omitted). But in that

passage the Court was discussing the applicability of the right to counsel

at critical stages of the prosecution, not the specific question of when ad-

versary judicial proceedings are initiated.

* Additionally, Rothgery asserts that his appearance before the mag-

istrate commenced the prosecution because a magistrate has exclusive

jurisdiction over a defendant's case upon the filing of a felony complaint

until superseded by indictment. See Ex parte Clear, 573 S.W.2d 224, 229

’

While only an indictment or information can formally

charge a felony under Texas law,'° see Teal v. State, No. PD-

0689-06, 2007 WL 676221, at *2 (Tex. Crim. App. Mar. 7,

2007); see also [299] TEX. CONST. art. I, § 10; TEX. CODE

CRIM. PROC. ANN. arts. 21.01, 21.20; GEORGE E. DIX &

ROBERT O. DAWSON, 41 TEXAS PRACTICE: CRIMINAL

PRACTICE AND PROCEDURE § 20.01, at 513 (2d ed. 2001),

complaints play a role in felony cases as well. Defined as

“(t]he affidavit made before the magistrate or district or

county attorney ... charg{ing] the commission of an offense,”

TEX. CODE CRIM. PROC. ANN. art. 15.04, a complaint under

Article 15.04 of the Texas Code of Criminal Procedure may

serve both as a basis for a probable cause finding for an ar-

rest warrant, see Huynh v. State, 901 S.W.2d 480, 481 n3

(Tex. Crim. App. 1995); Lowery v. State, 499 S.W.2d 160, 163

(Tex. Crim. App. 1973), and “as a basis for the issuance of an

information or the commencement of the indictment proc-

ess,” State v. Boseman, 830 S.W.2d 588, 590 n.3 (Tex. Crim.

App. 1992); see also DIx & DAWSON, 41 TEXAS PRACTICE:

CRIMINAL PRACTICE AND PROCEDURE § 19.01, at 473 (“As

a matter of local practice, . . . complaints may be routinely

filed in felony prosecutions and may reflect prosecutors’ de-

cisions to pursue formal felony charges in the particular

cases.”). Because “the process of prosecution is usually initi-

ated by the filing of a criminal ‘complaint’”” serving that lat-

ter function, Boseman, 830 S.W.2d at 590 n.3, our court and

the Texas Court of Criminal Appeals'' have construed felony

(Tex. Crim. App. 1978). Even assuming that the affidavit in this case

served the same function as the complaint in Clear, we fail to see how a

magistrate’s jurisdiction over preliminary matters alone signals the initia-

tion of adversary proceedings when prosecutors are unaware of and unin-

volved in the proceedings. Indeed, Clear itself involved a complaint that

was sworn before a prosecutor and filed by the prosecutor with the magis-

trate. Id. at 225-26.

7 Complaints may serve to formally charge a misdemeanor offense

in justice and municipal courts. Huynh v. State, 901 S.W.2d 480, 481 n. 3

(Tex. Crim. App. 1995).

'' While state case law is not binding on our court with regard to the

applicability of the Sixth Amendment to state procedures, state cases are

nonetheless useful for determining the nature of certain state procedures.

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complaints to be sufficient to initiate adversary judicial pro-

ceedings.'? See, e.g., Felder v. McCotter, 765 F.2d 1245, 1247-

48 (5th Cir. 1985), abrogated on other grounds by Patterson

v. Illinois, 487 U.S. 285, 295-96 & n.8 (1988); Forte v. State,

707 S.W.2d 89, 92 (Tex. Crim. App. 1986); Barnhill v. State,

657 S.W.2d 131, 132 (Tex. Crim. App. 1983).

However, none of those cases details the circumstances

involved in the filing of the dispositive complaint or ad-

dresses an affidavit that was filed after a warrantless arrest

to support a magistrate’s probable cause inquiry at an Arti-

cle 15.17 warnings appearance. In fact, in similar circum-

stances involving a warrantless arrest, a felony complaint,

and a magistrate’s probable cause determination at an Arti-

cle 15.17 warnings appearance, the Texas Court of Criminal

Appeals chose not to decide whether the complaint initiated

adversary judicial proceedings, which indicates that the re-

lationship between a complaint and the commencement of a

prosecution in Texas is less clear than Rothgery claims.”

[300] See Green v. State, 872 S.W.2d 717, 720 (Tex. Crim.

App. 1994). As complaints may be used for different pur-

poses, we simply cannot assume that the affidavit filed in

'? Despite Rothgery’s claim that Nehman v. State, 721 S.W.2d 319,

322 (Tex. Crim. App. 1986) (en banc), holds that the combination of a

probable cause determination and an Article 15.17 warnings appearance

initiates adversary judicial proceedings, the Texas Court of Criminal Ap-

peals later observed that Nehman’s holding was based on the presence of

“unspecified ‘charges.” Green v. State, 872 S.W.2d 717, 720 (Tex. Crim.

App. 1994); Nehman, 721 S.W.2d at 323 n.2. At the very least, we must

assume that Nehman involved a felony complaint.

'> Green v. State involved a Sixth Amendment claim in the context of

an arrest without a warrant, the filing of a “felony complaint” with a nota-

tion indicating the setting of bail, and an appearance before a magistrate

for Article 15.17 warnings and a probable cause determination. 872

S.W.2d at 718. After discussing the indeterminacy of Texas law on the

question of which procedures serve to initiate adversary judicial proceed-

ings and noting the cases that have held that the filing of a complaint

serves that function, the court stated: “We need not here decide when

adversary judicial proceedings commence. For even if the felony com-

plaint was sufficient to mark the initiation of adversary judicial proceed-

ings, . . . nothing occurred at appellant’s [hearing] that would render it a

‘critical stage’ of the prosecution against him.” /d. at 720.

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this case was the same type of complaint addressed in the

cases cited by Rothgery or that it served the same function

as those complaints.

Consequently, we are reluctant to rely on the formalis-

tic question of whether the affidavit here would be consid-

ered a “complaint” or its functional equivalent under Texas

case law and Article 15.04 of the Texas Code of Criminal

Procedures—a question to which the answer is itself uncer-

tain.'* Instead, we must look to the specific circumstances of

this case and the nature of the affidavit filed at Rothgery’s

appearance before the magistrate. And the summary judg-

ment evidence, considered in the light most favorable to

Rothgery, fails to establish that adversary judicial proceed-

ings were commenced by the affidavit in this case.

The affidavit itself indicates that it was filed for the sole

purpose of establishing probable cause, as it was titled “Af-

fidavit of Probable Cause,” it primarily consisted of the offi-

cer’s account of the events and the alleged offense, and the

portion of the affidavit signed by the magistrate illustrates

that the magistrate relied on the officer’s account to “deter-

mine[] that probable cause existed for the arrest.” The in-

quiry and its timing shortly after arrest were thus consis-

tent with the probable cause determination required by Ger ;

stein v. Pugh, 420 U.S. 103, 114 (1975),"° and County of Riv- |

'* As Gillespic County points out, Article 15.04 falls within the “Ar-

rest Under Warrant” chapter of the Texas Code of Criminal Procedure,

indicating that it may only apply to affidavits offered in support of an ar-

rest warrant. Additionally, the provision refers to “[t)he affidavit” made

before the magistrate or prosecutor, TEX. CODE CRIM. Proc. ANN. art.

15.04 (emphasis added), and its use of the definite article “the” indicates

that its scope may be limited to affidavits detailed elsewhere in the code.

The code does not explicitly provide for an affidavit offered at a probable

cause hearing for a warrantless arrestee.

In practice, however, we cannot say that Texas courts would not

consider a post-warrantless-arrest affidavit of probable cause to be an

Article 15.04 complaint or its functional equivalent. .

'S The Court in Gerstein also recognized that such probable cause de-

terminations typically are non-adversarial in nature and do not constitute

“critical stages” requiring counsel. 420 U.S. at 120-22.

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erside v. McLaughlin, 500 U.S. 44, 56 (1991), for a person

arrested without a warrant. And another form signed by

the magistrate to memorialize the warnings given to Roth-

gery indicated that charges “will be filed” in the district

court, not that they were being filed concurrently with the

magistrate.

The only aspect of the probable cause affidavit that even

arguably favors Rothgery’s argument is its use of the word

“charge” in the introductory language to the officer’s identi-

fication of the offense for which he arrested Rothgery. Yet

even as a complaint, the affidavit would be insufficient to

formally charge Rothgery with the felony, and there is no

basis to conclude that the use of the word “charge” was, or

could have been, anything but informal.'® Cf. McGee, 625

F.2d at 1208 (referring to the prosecutor’s lack of awareness

of “the charges” in finding that adversary judicial proceed-

ings had not initiated).

Most significantly, the summary judgment evidence re-

flects no prosecutorial knowledge of or involvement in the

arrest [301] and magistrate appearance, and Rothgery pro-

vides no reason to believe that the officer alone was empow-

ered to commit the state to prosecute Rothgery. Indeed, it

took prosecutors roughly six months after the arrest to seek

an indictment against Rothgery. Without any evidence to

indicate that the affidavit actually served to initiate the

prosecution at the time of Rothgery’s magistrate appear-

ance, we conclude that the filing of the affidavit was part of

the investigatory process, serving solely to validate the ar-

rest without committing the state to prosecute.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s order granting summary judgment to Gillespie

County.

‘For similar reasons, we also do not find the use of the word

“charged” on Rothgery’s bond form persuasive.

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APPENDIX B

UNITED STATES DISTRICT COURT

W.D. TEXAS, AUSTIN DIVISION

No. A-04-CA-456LY

WALTER ALLEN ROTHGERY, PLAINTIFF,

GILLESPIE COUNTY, TEXAS, DEFENDANT.

Feb. 2, 2006

[413 F. Supp. 2d 806]

***

[807]

MEMORANDUM OPINION AND ORDER ON

MOTION FOR SUMMARY JUDGMENT

YEAKEL, District Judge.

Before the Court are Defendant Gillespie County's Mo-

tion for Summary Judgment filed July 18, 2005 (Doc. # 28);

Plaintiffs Response in Opposition to Defendant’s Motion for

Summary Judgment filed August 8, 2005 (Doc. # 32); Plain-

tiffs Appendix of Summary Judgement Evidence filed Au-

gust 8, 2005 (Doc. # 33); and Defendant Gillespie County’s

Reply to Plaintiff's Response to Defendant’s Motion for

Summary Judgment filed August 19, 2005 (Doc. # 29). The

Court heard argument on the motion on November 18, 2005.

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Having considered the motion, response, and reply, as well

as argument of counsel, summary-judgment proof presented,

and applicable case law, the Court will grant the summary-

judgment motion for the following reasons.

I. Background

On July 15, 2002, officers of the Fredericksburg, Texas

Police Department arrested Plaintiff Walter Allen Rothgery

without a warrant for unlawfully carrying a firearm by a

felon, a third-degree felony under Texas law.' Rothgery was

taken to the Gillespie County jail for booking. Rothgery

states he requested, in writing, appointment of counsel, be-

cause he could not afford to hire an attorney to defend him.

This written request is not a part of the summary-judgment

proof submitted to this Court.

The next morning, July 16, 2002, Rothgery appeared be-

fore Judge Carl Schoessow, Justice of the Peace, Precinct #

2, Gillespie County.’ At that time, Judge Schoessow pre-

' At the summary-judgment stage, this Court is required to believe

the evidence of the nonmovant and to draw all justifiable inferences in the

nonmovant’s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court’s factual recitation,

therefore, reflects Rothgery’s version of the facts.

? Because Rothgery was arrested without a warrant, Texas law re-

quires that he be presented to a magistrate within forty-eight hours of his

arrest. See TEX CoDE Crim. Proc. ANN. art. 14.06(a) (West Supp.2005).

Presentation to the magistrate is required, in part, so that the magistrate

can inform a person arrested of the accusation against him and of any affi-

davit filed therewith, of his right to retain counsel, of his right to remain

silent, of his right to have an attorney present during any interview with

peace officers or attorneys representing the state, of his right to termi-

nate the interview at any time, of his right to have an examining trial, and

of his right to request the appointment of counsel if the person cannot

afford counsel. See TEX Cope Crim. Proc. ANN. art. 15.17(a) (West

Supp.2005). The magistrate is further required to inform the person ar-

rested of the procedures for requesting appointment of counsel and that

he is not required to make a statement and that any statement made by

him may be used against him. See id. These sections of the Texas Code of

Criminal Procedure were amended after Rothgery’s arrest. Because the

amendments did not materially alter the sections as they existed then, the

current versions are cited for simplicity.

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sented Rothgery with a form “Warning by Magistrate (Set-

ting [808] Bail & Right to Attorney) State of Texas, County

of Gillespie,” which Rothgery submitted as part of his sum-

mary-judgment proof. The form reflects that Judge Schoes-

sow informed Rothgery that Rothgery was accused of the

criminal offense of unlawful possession of a firearm by a

felon, but that formal charges had not yet been filed against

Rothgery, and that Judge Schoessow set Rothgery’s bond at

$5,000. Additionally, the form reflects that Judge Schoessow

informed Rothgery of his right to appointed counsel, if

Rothgery could not afford counsel, and that Rothgery

waived his right to counsel “at that time.”

As part of his summary-judgment proof, Rothgery also

submitted the Affidavit of Probable Cause sworn to by the

arresting officer on July 15, 2002. This affidavit purports to

set forth facts personally observed by the arresting officer

regarding Rothgery’s actions on July 15, 2002, and charges

that Rothgery committed the offense of unlawful possession

of a firearm by a felon, a third degree felony. See TEX.

PENAL CODE ANN. § 46.04 (West Supp. 2005).* The affidavit

further reflects that on July 16, 2002, Judge Schoessow ex-

amined the affidavit and determined that probable cause ex-

isted for the arrest of Rothgery.

* The phrase “at that time” is underlined on the form. Rothgery tes-

tified in his deposition that this phrase was underlined because, when

Rothgery asked Judge Schoessow about the status of his July 15, 2002

request for appointment of counsel. Judge Schoessow said that Rothgery

would have to waive his right to an attorney for purposes of the July 16,

2002 appearance, if Rothgery wanted to have bail set at that time. Accord-

ing to Rothgery, Judge Schoessow told him that he would have to wait in

jail until an appointment was made, if Rothgery wanted an attorney ap-

pointed for the bail determination. Rothgery further testified that he

agreed to waive his right to counsel for purposes of that proceeding only

based upon Judge Schoessow's statements, and that Judge Schoessow

underlined the phrase “at that time” to reflect this limited waiver.

*This section of the Texas Penal Code was amended after Roth-

gery’s arrest. Because the amendment did not materially alter the section

as it existed then, the current version is cited for simplicity.

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After Rothgery posted bail, he continued to inquire

about the status of his July 15, 2002 request for appointment

of counsel. After county employees informed him that they

could not locate his July 15, 2002 request for counsel, Roth-

gery completed a second written request for appointment of

counsel on July 24, 2002. Rothgery caused the request to be

notarized and submitted to jail employees. No attorney was

appointed for him based on the July 24, 2002 request.

As is true of the July 15, 2002 request, this second re-

quest is not a part of the summary-judgment proof before

this Court. Rothgery’s summary-judgment [809] proof does

include the notary log of Barbara Crenwegle, the adminis-

trative assistant to the Gillespie County Judge and Commis-

sioners. Crenwegle’s notary log reflects that Crenwegle no-

tarized a request for appointment of an attorney and an affi-

davit in support of an application for appointment of an at-

torney on July 24, 2002, for “Walter A. Rothgery.”

From July 2002 until January 2003, Rothgery claims

that he repeatedly contacted employees of Gillespie County

to inquire about the status of his appointment of counsel.

Rothgery testified in his deposition that he was consistently

told that no appointment had been made.

On January 17, 2008, six months after Rothgery’s ar-

rest, a Gillespie County grand jury returned an indictment

against Rothgery for the state felony offense of unlawfully

carrying a firearm by a felon. Rothgery’s bond was in-

creased to $15,000, and he was rearrested on January 18,

2003. Rothgery was again brought before Judge Schoessow

on January 19, 2003... When he appeared before Judge

Schoessow, Rothgery inquired about the status of his last

request for appointment of counsel, the July 24, 2002 written

* Rothgery testified in his deposition that he thought he appeared

before Judge Schoessow on January 19, 2003, but that he was unsure. As

part of its summary-judgment proof, Gillespie County submitted the sec-

ond “Warning by Magistrate (Setting Bai] & Right to Attorney) State of

Texas, County of Gillespie” form issued to Rothgery, and this form re-

flects that Rothgery appeared before Judge Schoessow on January 19,

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17a

request. Rothj,ery states that Judge Schoessow speculated

that Rothgery had not been appointed an attorney because

he “didn’t deserve one.” Rothgery further testified in his

deposition that, as of January 19, 2003, there was no record

of his submitting the previous two requests for appointment

of counsel. Rothgery claims that he submitted a third form

requesting counsel on January 19, 2003. Like the others,

this request is not in the summary-judgment record before

this Court.

Three days later, and still with no appointed attorney,

Rothgery was transferred to the Comanche County jail due

to overcrowding in the Gillespie County jail. Rothgery

asked Comanche County jail employees about the status of

his request for appointment of counsel, and was told that

they knew nothing of such request. On January 23, 2003,

Rothgery completed a fourth written request, and employ-

ees at the Comanche County jail faxed the request to Gilles-

pie County. Based on this request, State District Judge

Stephen Ables immediately appointed counsel to represent

Rothgery. The January 23, 2003 request is part of the sum-

mary-judgment record in this case.

Rothgery’s appointed counsel expeditiously obtained

records concerning the alleged underlying offense, which

reflected that Rothgery was not a convicted felon. On that

basis, the Gillespie County District Attorney moved to dis-

miss the indictment. Judge Ables granted the motion and

dismissed the indictment against Rothgery on April 30, 2003.

On July 15, 2004, Rothgery filed this action under Title

42, United States Code, Section 1983, the federal Civil

Rights Act, against Gillespie County. See 42 U.S.C. § 1983.

Rothgery alleges that Gillespie County’s policies or customs

regarding appointment of counsel for indigent defendants

violate the Sixth and Fourteenth Amendments to the United

States Constitution. Rothgery does not, however, complain

about Gillespie County’s written policies and procedures

concerning appointment of counsel for indigent defendants.

Rather, Rothgery complains about unwritten policies and

cus- [810] toms concerning appointment of counsel for indi-

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gent defendants that he alleges both the county and state

courts follow in Gillespie County.°

Specifically, Rothgery alleges that Gillespie County fol-

lows a policy, practice, and custom that denies access to ap-

pointed counsel to a person charged with a felony, if that

person is released from jail on bond, regardless of the per-

son’s financial status. Alternatively, Rothgery alleges that

Gillespie County follows a policy, practice, and custom that

denies access to appointed counsel to a person charged with

a felony, but not yet indicted, if that person is out of custody

on bond at the time of his request for counsel, regardless of

the person’s financial status. Rothgery further alleges that

Gillespie County follows a policy, practice, and custom that

involves failure to adequately train, supervise, and monitor

county employees to whom the responsibility for prelimi-

nary processing of requests for appointed counsel] has been

delegated; thus creating an unreasonable risk that applica-

tions for appointed counsel will not be recorded and will not

be ruled upon in a timely manner. Lastly, Rothgery alleges

that Gillespie County follows a policy, practice, and custom

that involves failure to adequately monitor appointed coun-

sel, creating an unreasonable risk that attorneys appointed

to represent indigent criminal defendants will not promptly

contact those defendants, thereby denying meaningful ac-

cess to counsel. Seeking monetary damages against Gilles-

pie County, Rothgery claims these policies and customs in-

jured him because, had he been timely appointed counsel in

July 2002, the charges against him would have been resolved

before he was indicted, rearrested, incarcerated, and sub-

jected to increased bail in January 2003.

Gillespie County moves for summary judgment on

Rothgery’s entire action, arguing that there is no constitu-

* As part of his summary-judgment proof, Rothgery submitted Gil-

lespie County's written policies, “Gillespie County Plan and Standing

Rules and Order for Procedures for Timely and Fair Appointment of

Counsel for Indigent Accused Persons in Gillespie County, Texas.” Since

these written policies are not at issue in this action, this Court expresses

no opinion of them.

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19a

tional duty to appoint counsel prior to the initiation of adver-

sary judicial proceedings. Gillespie County contends that

the July 16, 2002 appearance before Judge Schoessow was

not an adversary judicial proceeding because an appearance

before a magistrate for statutory warnings does not involve

counsel for the state and does not constitute a formal charge.

Gillespie County argues that adversary judicial proceedings,

sufficient to trigger Rothgery’s Sixth Amendment right to

counsel, were not initiated until after Rothgery was indicted

and he made his first post-indictment court appearance.

Thus, Gillespie County argues that the failure to appoint

counsel for Rothgery from July 16, 2002, through January

23, 2003, did not violate Rothgery’s Sixth Amendment right

to counsel.

To the contrary, Rothgery argues that adversary pro-

ceedings were initiated against him on July 16, 2002, when

he was charged by criminal complaint under Texas law.

Rothgery contends that formal charges were filed against

him under Texas law on July 16, 2002, when the arresting

officer presented Judge Schoessow with the probable-cause

affidavit. Gillespie County replies that no adversary judicial

proceedings had begun on July 16, 2002, because the prob-

able-cause affidavit is not a felony complaint under Texas

law, and, even if it were, a felony complaint may be insuffi-

cient to trigger to the Sixth Amendment right to appointed

counsel.

{811] As discussed fully below, this Court concludes

that neither the presentation of the probable-cause affidavit

to Judge Schoessow nor Rothgery’s appearance before

Judge Schoessow on July 16, 2002, initiated adversary judi-

cial proceedings against Rothgery. Thus, Rothgery’s Sixth

Amendment right to counsel did not attach on July 16, 2002,

and Gillespie County did not violate Rothgery’s Sixth and

Fourteenth Amendment rights by failing to appoint counsel

from July 16, 2002, through January 23, 2003.’

. Gillespie County also moves for summary judgment on the grounds

that it has no duty to appoint counsel or to establish plans or procedures

for appointing counsel. Because the resolution of the Sixth Amendment

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I. Summary-Judgment Standard

Summary judgment should be granted if the record,

taken as a whole, “together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law.” FED. R. Civ. P. 56(c); New York Life Ins. Co. v.

Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir. 1996). The Su-

preme Court has interpreted the plain language of Rule

56(c) to mandate “the entry of summary judgment, after

adequate time for discovery and upon motion, against a

party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Ce-

lotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). A party moving for summary judgment

“must ‘demonstrate the absence of a genuine issue of mate-

rial fact,’ but need not negate the elements of the non-

movant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 U.S. at

323, 106 S.Ct. 2548). If the moving party “fails to meet this

initial burden, the motion must be denied, regardless of the

nonmovant’s response.” Little, 37 F.3d at 1075.

If the moving party meets this burden, Rule 56(c) re-

quires the nonmovant to go beyond the pleadings and show

by affidavits, depositions, answers to interrogatories, admis-

sions on file, or other admissible evidence that specific facts

exist over which there is a genuine issue for trial. See Wal-

lace v. Texas Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).

The nonmovant’s burden may not be satisfied by conclusory

allegations, unsubstantiated assertions, metaphysical doubt

issue is determinative of the entire action, this Court need not address

Gillespie County's other grounds for summary judgment. Likewise, be-

cause the Court determines that Rothgery’s Sixth Amendment right to

counsel did not attach on July 16, 2002, the Court need not address Roth-

gery’s allegations in his complaint that Gillespie County follows a policy,

practice, and custom that involves failure to adequately train, supervise,

and monitor county employees to whom the responsibility for preliminary

processing of requests for appointed counse] has been delegated and fail-

ure to adequately monitor appointed counsel.

2la

as to the facts, or a scintilla of evidence. See Wallace, 80

F.3d at 1047; Little, 37 F.3d at 1075. Factual controversies

are to be resolved in favor of the nonmovant, “but only when

there is an actual controversy, that is, when both parties

have submitted evidence of contradictory facts.” Little, 37

F.3d at 1075. The court will not, “in the absence of any

proof, assume that the nonmoving party could or would

prove the necessary facts.” Little, 37 F.3d at 1075.

In order to determine whether or not summary judg-

ment should be granted, an examination of the substantive

law is essential. Substantive law will identify which facts

are material in that “[oJnly disputes over facts that might

affect the outcome of the suit under the governing [812] law

will properly preclude the entry of summary judgment.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-51, 106

S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Il. Analysis

In pertinent part, the Sixth Amendment provides that

“{iJn all criminal prosecutions, the accused shall enjoy the

right ... to have the Assistance of Counsel for his defence.”

U.S. CONST. amend. VI. The purpose of the Sixth Amend-

ment is to protect “the unaided layman at critical confronta-

tions with his adversary.” U.S. v. Gouveia, 467 U.S. 180, 189,

104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). The Sixth Amend-

ment right to counsel attaches only at or after the initiation

of adversary judicial proceedings against the defendant. See

Gouveia, 467 U.S. at 187, 104 S.Ct. 2292; Kirby v. Illinois,

406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The

initiation of adversary judicial criminal proceedings may be

by way of formal charge, preliminary hearing, indictment,

information, or arraignment. See Kirby, 406 U.S. at 689, 92

S.Ct. 1877. Federal courts look to state law in evaluating

whether adversary judicial proceedings have been initiated.

See Moore v. Illinois, 434 U.S. 220, 228, 98 S.Ct. 458, 54

L.Ed.2d 424 (1977).

The Texas Court of Criminal Appeals has not set forth a

“bright-line rule” to determine when adversary judicial pro-

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ceedings begin. See Hidalgo v. State, 983 S.W.2d 746, 752

(Tex.Crim.App.1999). In fact, the “caselaw is somewhat in-

determinate on the question of what events may serve to

initiate adversary judicial proceedings for Sixth Amendment

purposes.” Green v. State, 872 S.W.2d 717, 720

(Tex.Crim.App.1994). Rather than following a bright-line

rule as to when adversary judicial proceedings have begun,

Texas courts focus on whether a particular event is a critical

stage to which a person’s Sixth Amendment right to counsel

attaches. See Hidalgo, 983 S.W.2d at 752. Generally, Texas

courts consider whether “the accused requires aid in coping

with legal problems or assistance in meeting his adversary”

in determining if an event is a critical stage. Id. Although

* this Court is bound by Texas courts’ interpretation of the

law governing its proceedings, this Court is not bound by

the opinions of Texas courts concerning what constitutes a

critical stage of prosecution under the Sixth Amendment.

See Coleman v. Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 26

L.Ed.2d 387 (1970) (rejecting Alabama Court of Appeal’s

conclusion that preliminary hearing was not critical stage).

The first issue before the Court is whether formal

charges were filed against Rothgery on July 16, 2002, that

initiated adversary judicial proceedings against him under

Kirby. Rothgery contends that formal charges were filed

against him when the arresting officer presented his Affida-

vit of Probable Cause to Judge Schoessow.® Rothgery ar-

gues that the probable-cause affidavit is a complaint under

Texas law that initiated adversary judicial proceedings

against him.

To support his contention, Rothgery relies on Article

15.04 of the Texas Code of Criminal Procedure, which states

that “the affidavit made before the magistrate or district or

county attorney is called a ‘complaint’ if it charges the com-

mission of an offense.” TEX. CODE CRIM. PROC. ANN. art.

*It is undisputed that Rothgery had not yet been indicted or

charged by information on July 16, 2002. Further, no party suggests that

Rothgery was presented for arraignment before Judge Schoessow on July

16, 2002.

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15.04 (West 2005). Article 15.04 is found in the chapter of

the Texas Code of Criminal Procedure titled “Arrest Under

War- [813] rant.” See TEX. CODE CRIM. PROC. ARTS. 15.01-

15.27 (West 2005 & West Supp. 2005). It is undisputed,

however, that Rothgery was arrested without a warrant on

July 15, 2002.’ Although there is little case law on the issue,

it appears that Texas courts have construed Article 15.04 as

applying only to affidavits made in support of arrest war-

rants. For instance, in Huynh v. State, 901 S.W.2d 480, 481

n. 3 (Tex.Crim.App.1995), the court explained that “[a] com-

plaint is a sworn affidavit charging the commission of an of-

fense and serves as the basis for an arrest warrant.” Judge

Meyers noted in his concurrence in Green *hat

[ijt is well to remember in this context that the

word “complaint” has come to mean at least two dif-

ferent things under Texas law. First, it describes a

sworn affidavit upon the basis of which a magis-

trate may issue a warrant of arrest. Tex. Code

Crim. Proc. Ann. arts. 15.03(a) 2, 15.04, 15.05. In

this sense, it does not refer to a criminal pleading.

Wooldridge v. State, 653 S.W.2d 811, 814 n. 6

(Tex.Crim.App.1983). 3

Green, 872 S.W.2d at 731 n. 5 (Meyers, J., concurring).

Likewise, one Texas court has explained that an “affidavit

supporting an arrest warrant is called a complaint.” Weems

v. State, 167 S.W.3d 350, 355 (Tex. App.—Houston [14th

Dist.] 2005, pet ref'd.). Echoing Judge Meyers’s statement

in his Green concurrence, the same court has explained that

“{t]he Code of Criminal Procedure uses the term ‘complaint’

to refer to both the affidavit supporting an application for an

arrest warrant and the written document alleging an offense

that it sworn to before a prosecutor.” Merritt v. State, 76

S.W.3d 632, 633 n. 1 (Tex.App.—Houston [14th Dist.] 2002,

no pet.) citing TEX. CODE CRIM. PROC. ANN. arts 2.04, 15.04

(West 2005).

* Chapter 14 of the Texas Code of Criminal Procedure, titled “Arrest

Without Warrant,” governs warrantless arrests. See TEX. CODE CRIM.

PROC. ANN. arts. 14.01-14.06 (West 2005 & West. Supp. 2005).

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No court, however, has expressly held that Article 15.04

applies only to affidavits given in support of arrest warrants.

At the same time, the Court has found no case holding, or

even discussing the possibility, that Article 15.04 applies to

affidavits given in support of a probable-cause determination

following a warrantless arrest. Rothgery relies on Nehman

v. State, 721 S.W.2d 319 (Tex.Crim.App.1986) in support of

his argument that formal charges were filed against him on

July 16, 2002. The Nehman court concluded that adversary

judicial proceedings had been initiated by the time the ac-

cused’s Article 15.17 warnings" were given and held the ac-

cused’s confession inadmissible. See id. at 322-23. The

Nehman court stated that “formal judicial proceedings had

been initiated by the time of appellant’s Art. 15.17 ‘warning

hearing.” Jd. at 323 n. 2. Although the Nehman court did

not elaborate further on how the “formal judicial proceed-

ings” had been initiated, the opinion reflects that a warrant

for appellant’s arrest had been issued and that appellant had

been advised of his rights under Miranda v. Arizona, in-

cluding his right to counsel, before the Article 15.17 warn-

ings were given. See id. at 320. Because Rothgery was not

arrested pursuant to a warrant, the Court finds Nehman

distinguishable. The Court concludes that Article 15.04 is

inapplicable to the facts of this case.

Additionally, the Texas Court of Criminal Appeals has

observed that Texas law [814] requires prompt probable-

cause determinations for individuals arrested without a war-

rant to satisfy the Fourth Amendment. See Green, 872

S.W.2d at 721. Specifically, the Green court explained that

“(bjecause appellant was arrested without a warrant, it was

necessary under the Fourth Amendment for the State

promptly to obtain a probable cause determination ‘as a con-

dition of any significant pretrial restraint of liberty.” Id. :

citing Gerstein v. Pugh, 420 U.S. 108, 125, 95 S.Ct. 854, 43

L.Ed.2d 54 (1975). It thus appears to this Court that, under

'° See supra note 2.

'' 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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Texas law, the purpose of presenting the probable-cause af-

fidavit to Judge Schoessow on July 16, 2002, was to establish

that probable cause existed under the Fourth Amendment

for arresting Rothgery without a warrant, not to formally

charge him with an offense under Texas law or Kirby.

Following Texas jurisprudence, the Court concludes

that Article 15.04 does not apply to the probable-cause affi-

davit presented to Judge Schoessow in support of Roth-

gery’s warrantless arrest. The Court further concludes that

the probable-cause affidavit presented to Judge Schoessow

on July 16, 2002, is not a complaint under Texas law formally

charging Rothgery with an offense under Kirby. Since no

formal charges were filed against Rothgery on July 16, 2002,

adversary judicial proceedings were not initiated against

him at that time, and his Sixth Amendment right to counsel

did not attach.

In light of this Court’s determination that no formal

charges had been filed against Rothgery with the presenta-

tion of the probable-cause affidavit to Judge Schoessow, the

Court agrees with Gillespie County that Rothgery’s appear-

ance before Judge Schoessow on July 16, 2002, did not initi-

ate adversary judicial proceedings under Texas law. On July

16, 2002, pursuant to Article 15.17(a), Judge Schoessow ad-

vised Rothgery of his rights, informed him of the crime ac-

cused, advised him of the right and procedures for obtaining

counsel, determined probable existed for his detention and

set bond. See TEX CODE CRIM. PROC. ANN. art. 15.17(a).

The Texas Court of Criminal Appeals has held that the giv-

ing of Article 15.17 warnings does not initiate adversary ju-

dicial proceedings. Wyatt v. State, 566 S.W.2d 597, 600

(Tex.Crim.App.1978). The Wyatt court stated that “[iJt is

clear that the form signed and relied upon by appellant is

simply an acknowledgment that a magistrate’s warning was

given pursuant to Article 15.17. ... We cannot conclude that

informing the defendant of the accusation against him con-

stitutes the initiation of adversary criminal] procedures.” /d.

Further, the Green court observed that “({o]ther than its Ar-

ticle 15.17 aspect, the PIA [preliminary initial appearance],

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per se, is not a requirement of state law.” Green, 872 S.W.2d

at 722. The Green court explained that nothing that oc-

curred at the defendant’s preliminary initial appearance “re-

quired the aid of counsel to cope with any legal problem or

assist in meeting the prosecutorial adversary.” /d. at 721."

Additionally, the Green court stated, in dicta, that the possi-

bility that an attorney could contest bail “does not convert

the PIA [preliminary initial appearance] into a critical

stage.” [815] Green, 872 S.W.2d at 722. Although not bound

by the state court’s critical-stage determination, the Court is

persuaded that the determination is reflective of the Texas

Court of Criminal Appeals’ view that adversary judicial pro-

ceedings are not initiated by an appearance before a magis-

trate for Article 15.17 warnings and the setting of bail.

The Court concludes that no adversary judicial proceed-

ings were initiated against Rothgery under Texas law on

July 16, 2002, when Rothgery appeared before Judge

Schoessow. Gillespie County is correct that Rothgery’s

Sixth Amendment right to counsel did not attach at that

time.

This Court’s holding that neither the presentation of the

probable-cause affidavit to Judge Schoessow or Rothgery’s

appearance before Judge Schoessow on July 16, 2002 initi-

ated adversary judicial proceedings against Rothgery under

Texas law is consistent with Supreme Court and Fifth Cir-

cuit precedent. The Supreme Court has repeatedly stated

that “the initiation of judicial criminal proceedings is far

from a mere formalism.” Kirby, 406 U.S. at 689, 92 S.Ct.

1877. Rather, the initiation of judicial criminal proceedings

'2 In Green, the defendant was arrested without a warrant, charged

by felony complaint the day after his arrest, and subsequently presented

to a magistrate pursuant to Article 15.17. Despite the State's invitation,

the Texas Court of Criminal Appeals declined to hold that adversary judi-

cial proceedings can only be initiated in a felony prosecution by the filing

of an indictment. See Green, 872 S.W.2d at 720. Rather, the court held

that an appearance before a magistrate under Article 15.17 and a prob-

able-cause determination, following a warrantless arrest, is not a critical

stage, even if adversary judicial proceedings have been initiated. See id.

4 ie ee a es , ii 6 — —— a oe ie by Sigs i

ae eR ee eae le Me Re ee ee ME SL ee ee eee ee ee Ce ae

‘

' aw ae 4), ee. ee Ye se Pe

Va el ly ee eee

i ee Be Be J > J 4 et - §. a of | sap a ade * oes Prot -

er) rls ad Re te Wa 4 tht ye Fa mee i pall roe ae tte ala ~ een SF a eee ets 8 SS Pen

- t ee ee prem eee aly Oren ee Se FO ee ee id PAL PR es ‘+ m 3° 5 Se Pea . le

. . . f ee . ~ “ or ? v4 ar b. ae - . i. ws o~ ia »

is the starting point of our whole system of adver-

sary criminal justice. For it is only then that the

government has committed itself to prosecute, and

only then that the adverse positions of government

and defendant have solidified. It is then that a de-

fendant finds himself faced with the prosecutorial

forces of organized society, and immersed in the in-

tricacies of substantive and procedural criminal law.

It is this point, therefore, that marks the com-

mencement of the ‘criminal prosecutions’ to which

alone the explicit guarantees of the Sixth Amend-

ment are applicable.

Id. at 689-90, 92 S.Ct. 1877.

Although the Supreme Court has extended the Sixth

Amendment’s right to counsel to certain “critical stages” of

criminal proceedings, it has done so in limited circumstances.

See Gouveia, 467 U.S. at 189, 104 S.Ct. 2292. In the narrow

instances where the Supreme Court has recognized that an

accused Sixth’s Amendment right attaches at a pretrial pro-

ceeding,

the accused [is] confronted, just as at trial, by the

procedural system, or by his expert adversary, or

by both, United States v. Ash, supra, 413 US. at

310, 93 S.Ct. at 2574, in a situation where the re-

sults of the confrontation “might well settle the ac-

cused’s fate and reduce the trial itself to a mere

formality.” United States v. Wade, supra, 388 U.S.

at 224, 87 S.Ct. at 1930.

Gouveia, 467 U.S. at 188-89, 104 S.Ct. 2292. Accordingly, the

Sixth Amendment right to counsel can attach at pre-

indictment preliminary hearings, if an accused is confronted

with prosecutorial forces and witnesses against him. See

Coleman, 399 U.S. at 10, 90 S.Ct. 1999. In such instances,

“the guiding hand of counsel at the preliminary hearing is

essential to protect the indigent accused against an errone-

ous or improper prosecution.” /d. at 9,90 S.Ct. 1999.

The Fifth Circuit has held that an adversary criminal

proceeding has not begun where the prosecution officers are

FAO Vee Sel en, eee. Gost ee ee Oe Ee eee

28a

unaware of either the charges or the arrest. See McGee v.

Estelle, 625 F.2d 1206, 1208 (5th Cir. 1980). The Fifth Cir-

cuit reasoned that an appearance before a magistrate for

statutory warnings does not trigger the adversary process

under Texas law because it does not involve counsel for the

state and is not a formal charging. See id. at 1209. Rather,

such an appearance “is for the purpose of complying with the

requirements set forth in Miranda v. Arizona.” Id.

[816] The Court notes that the summary-judgment re-

cord does not reflect any involvement of the Gillespie

County District Attorney’s Office on July 16, 2002. There is

no summary-judgment proof that a prosecutor from the Gil-

lespie County District Attorney’s Office was present at

Rothgery’s July 16, 2002, appearance before Judge Schoes-

sow or involved in any way in the probable-cause determina-

tion. To the contrary, the summary-judgment proof demon-

strates that no decision had been made by the Gillespie

County District Attorney’s Office on July 16, 2002, to prose-

cute Rothgery for the criminal offense of unlawfully carrying

a firearm by a felon. As the warnings form that Judge

Schoessow presented to Rothgery reflects, no charges had

been filed against Rothgery at that time. Rather, the form

reflects that charges “will be filed” in Gillespie County dis-

trict court.

For this Court to find that Rothgery’s Sixth Amend-

ment right to counsel attached on July 16, 2002, the Court

would have to conclude that a warrantless arrest plus Arti-

cle 15.17 warnings and a subsequent probable-cause deter-

mination, without involvement by prosecutorial forces, is

sufficient to trigger the Sixth Amendment right to counsel.

Such a holding would violate Supreme Court precedent

equating adversary judicial proceedings with criminal prose-

cutions, which necessarily implies involvement, or, at a

minimum, awareness of the prosecutor. See McNeil v. Wis-

consin, 501 U.S. 171, 175, 111 S.Ct. 2204, 115 L.Ed.2d 158

(1991) (Sixth Amendment right to counsel “does not attach

until a prosecution is commenced, that is, at or after the ini-

tiation of adversary judicial criminal] proceedings-whether

by way of formal charge, preliminary hearing, indictment,

information, or arraignment”) quoted in Texas v. Cobb, 532

U.S. 162, 167-68, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001);

Gouveia, 467 U.S. at 188, 104 S.Ct. 2292 (Sixth Amendment

requires existence of both criminal prosecution and accused).

Further, such a holding would be dangerously close to violat-

ing the clear statement in Gouveia that the Sixth Amend-

ment right to counsel does not attach at the time of arrest."

See Gouveia, 467 U.S. at 190, 104 S.Ct. 2292. Finally, such a

holding would be inconsistent with Texas law regarding ini-

tiation of adversary judicial proceedings. See Green 872

S.W.2d at 720; Nehman, 721 S.W.2d at 323; Wyatt, 566

S.W.2d at 600.

[817] In conclusion, the Court finds that no adversary

judicial proceedings were initiated on July 16, 2002, under

Texas law, either by way of the presentation of the probable

' In explaining that the Sixth Amendment right to counsel does not

attach at the time of arrest, then Justice Rehnquist differentiated be-

tween the Sixth Amendment rights to counsel and to speedy trial. Al-

though the Sixth Amendment's speedy-trial guarantee may attach before

an indictment, and as early as the time of arrest and holding to answer a

criminal charge, the Supreme Court had never held that the Sixth

Amendment'’s right to counsel attaches at the time of arrest.

This difference is readily explainable, given the fact that the speedy

trial right and the right to counsel protect different interests. While

the right to counsel exists to protect the accused during trial-type

confrontations with the prosecutor, the speedy trial right exists pri-

marily to protect an individual's liberty interest, “to minimize the

possibility of lengthy incarceration prior to trial, to reduce the lesser,

but nevertheless substantial, impairment of liberty imposed on an ac-

cused while released on bail, and to shorten the disruption of life

caused by arrest and the presence of unresolved criminal charges.”

United States v. MacDonald, supra, 456 US. at 8, 102 S.Ct. at 1502.

See Barker v. Wingo, 407 U.S. 514, 532-533, 92 S.Ct. 2182, 2192-2198,

33 L.Ed.2d 101 (1972); United States v. Marion, supra, 404 U.S. at

320, 92 S.Ct. at 463.

Gouveia, 467 U.S. at 190, 104 S.Ct. 2292. The distinction between the

right to counsel and right to speedy trial further persuades the Court that

the July 16, 2002 appearance did not initiate adversary judicial proceed-

ings against Rothgery, as Rothgery was not held “to answer a criminal

charge,” but, instead, was only informed of the accusation against him.

cause affidavit to Judge Schoessow or by Rothgery’s ap-

pearance before Judge Schoessow. Thus, Rothgery’s Sixth

Amendment right to counsel did not attach on July 16, 2002.

The Court concludes that Gillespie County did not violate

Rothgery’s Sixth Amendment rights by failing to appoint

Rothgery counsel from July 16, 2002 until January 23, 2003."*

Turning to Rothgery’s Fourteenth Amendment allega-

tions, Rothgery alleges that Gillespie County violated his

right to due process and to equal protection under the law

by denying him access to counsel, in part, by delaying ap-

pointment of counsel for six months. The Sixth Amend-

ment’s right to counsel applies to the states through the

Fourteenth Amendment. See Gideon v. Wainwright, 372

U.S. 335, 342, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). A person’s

Sixth and Fourteenth Amendment right to counsel attaches

only at or after the time that adversary judicial proceedings

have been initiated against him. See Kirby 406 U.S. at 688,

92 S.Ct. 1877. Because this Court has determined that no

adversary judicial proceedings were initiated against Roth-

gery on July 16, 2002, and that his right to counsel under the

Sixth Amendment did not attach at that time, Gillespie

County did not unconstitutionally deny Rothgery access to

counsel. Thus, there is no violation of the Fourteenth

Amendment under either the due process or equal protec-

tion clauses. :

'* The Court recognizes that Rothgery testified in his deposition that

he requested counsel on January 19, 2003, and that no counsel was ap-

pointed based on this request. As previously noted, this request is not

included in the summary-judgment proof. Only the January 23, 2003 re-

quest, upon which Judge Ables acted immediately is before the Court.

Construing, as the Court must, all facts in favor of Rothgery, the Court

presumes Rothgery did request counsel on January 19, 2003. Gillespie

County’s failure to appoint counsel on January 19, 2003, is, at best, negli-

gence, and not indicative of a policy, practice, or custom to avoid appoint-

ing counsel. As soon as Judge Ables was advised of Rothgery’s January

23, 2003 request, Judge Ables appointed counsel.

;

‘

;

“

IV. Conclusion

IT IS THEREFORE ORDERED that Defendant Gil-

ie s Motion for Summary Judgment (Doc. # 28) is

. GRANTED. ;

7t,.>

. 2

;

“

;

33a

APPENDIX C

Affidavit Of Probable Cause

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF TEXAS, I, Ken James, a Texas Peace Officer,

being duly sworn, do state upon my oath that:

[x] I have personal knowledge that:

{ ] I have good reason to believe, and do believe, based upon

the following information:

on (date) 7-15-02 at about (time) 10:36 AM at (location) 78

FM 2093, Fredericksburg Gillespie County, Texas, the fol-

lowing occurred:

Defendant was fired as manager of Oakwood RV Park on 07-

14-02. He became very upset and verbally abusive towards

the owner. On 07-15-02 the Defendant was reported to be

walking around the RV Park with a gun belt on, carrying a

pistol, handcuffs, mace spray, extra bullets and a knife. Offi-

cers arrived and located the subject in possession of a fire-

arm. A check showed that the subject was a convicted felon

for possession controlled substance in 1996. Walter A Roth-

gery was convicted 05-30-1996 in Orange Co. California for

possess controlled substance felony. On 07-15-02 at

10:36 AM he was in possession of a firearm in a public place.

To wit: Oakwood RV Park located at 78 FM 2093 Freder-

icksburg, Texas.

7/16/02 at 8:15 AM

and I charge that heretofore, on or about the 15 day of July,

2002, in the County of Gillespie and the State of Texas, De-

fendant, Walter A. Rothgery did then and there commit the

offense of unlawful possession of a firearm by a felon—3rd

degree felony P.C. 46.04

AGAINST THE PEACE AND DIGNITY OF THE

STATE.

/s/

Affiant

34a

4 Sworn to and Subscribed before me by Ken Jones, a credible

- person this 15th day of July, 2002.

Notary

[STAMP: PEDRO B. GARCIA

Notary Public

STATE OF TEXAS

My Comm. Exp. 12/03/05]

ON THE 16TH DAY OF JULY, 2002, I HEREBY ACKNOWLEDGE

I HAVE EXAMINED THE FOREGOING AFFIDAVIT AND HAVE

DETERMINED THAT PROBABLE CAUSE EXISTED FOR THE

ARREST OF THE INDIVIDUAL ACCUSED THEREIN.

ls/

MAGISTRATE

Defendant’s Identifiers:

a RE

[STAMP: received 1-21-03 from G.C.S.D.]

. . . ’ . s. o? ~ rw VW wale, “ ai: « ee a eitics Sats te ne Ts 20/ Gr te ™ vs hei a ~ Pa

ee . ‘: . . * ay ¥>5 ‘. at ie 7 Stet) a RE, bn ; ee oe . atin) s aroe +

PT eS Pe ee ee ey SP a RSS ee OER ee SONNE tek OT eee i ba 4

;

35a

APPENDIX D

Warning by Magistrate (Setting Bail & Right to Attorney)

State of Texas, County of Gillespie

This is to certify that I, acting as and in the capacity of a

magistrate, in clear language, and in person, did inform:

Name: Walter Allen Rothgery Case Number

1. You are accused of the criminal offense of: unlawful pos-

session of a firearm by a felon which will be filed in 216th

District Court, Gillespie Court.

2. If peace officers or attorneys representing the state

question you, you have the right to have a lawyer pre-

sent. You have the right to talk to your lawyer before

being questioned, to have your lawyer with you while be-

ing questioned and the right to stop the questioning at

any time. If you cannot afford to hire a lawyer, you have

the right to have one appointed.

3. You have the right to remain silent and are not required

to make a statement, either oral or written. Any state-

ment you make can be used as evidence against you in

court.

4. In felony cases, you have the right to an examining trial.

ES Re Ne TE ORE Re Re Sh es ee ee See ee Ne eRe PN ey ARERR, een Cee ote:

Eero ye ae

YOUR BOND IS SET AT: 5,000.00 (Cash/Surety)/(Persenat

Bend)/(Bond Net-Determined)

I have further (in clear language understood by the accused)

informed the accused:

1. If you cannot pay for a lawyer, you can request one right

now.

2. You would have to fill out a sworn statement about your

work, what you own, your expenses and family.

3. If you need help filling out the form, someone will help

you.

36a

4. These are the time frames. Your request will be sent to

the judge of your case within 24 hours. He/she has 3

days to cecide if you get a court appointed lawyer. If a

lawyer is appointed, s/he will try to contact you by the

end of the next first working day.

I, the magistrate in this case, hereby certify that

1. The law enforcement agency having custody of the

named accused has brought the accused before this mag-

istrate not later than 48 hours after arrest.

2. I have informed the accused of his/her right to request

appointment of an attorney, if indigent, and the proce-

dures for requesting appointment of an attorney.

3. If the accused does not speak and/or understand the

English language or is deaf, I have informed the accused

in a manner consistent with the Tx CCP Art. 38.30 and

38.31.

4. I have ensued that all reasonable assistance in complet-

ing the necessary forms for the requesting appointment

of an attorney has been provided.

5. A record of the magistrate’s advising the accused of the

right to appointed attorney has been prepared in accor-

dance with the law and such record consists of this

document signed by me as Magistrate, a copy of which

was provided to the accused person.

I, the magistrate in this case, do certify that I am the duly

elected or appointed Justice of the Peace, ___- Precinct #1/

x. Precinct #2/ ___ Fredericksburg Municipal Judge in Gil-

lespie County, Texas and further certify that:

(x) The accused has announced the intention to waive

right to counsel at this time __/s/__ (initials)

( ) The accused has announced s/he is not indigent and

does not wish appointment of attorney at this time.

__ (initials)

()

X /s/_ ls/

37a

The accused is being held on a misdemeanor accusation

and has claimed s/he is indigent and has requested

court appointed counsel. The Affidavit of Indigence

and Request for Attorney is to be referred within 24

hours to the Gillespie County Judge for determination

of indigence and if appropriate, appointment of attor-

ney in accordance with the plan approved by the Dis-

trict Judge of Gillespie Country, TX /

The accused is being held on a felony accusation and

has claimed s/he is indigent and has requested court

appointed counsel. The Affidavit of Indigence and Re-

quest for Attorney is to be referred within 24 hours to:

the District Judge of Gillespie County, TX for deter-

mination of indigence and, if appropriate, appointment

of attorney in accordance with the plan approved by

the District Judge of Gillespie County, TX/

PERSON WARNED Magistrate, Gillespie

County Texas

Date and Time: July 16, 2002 at 8:30 AM Witness: /s/

[STAMP: received 1-21-03 from [illegible]]

Past . re eee P Ree er x

eee, eee Oe > a ee ee at eee ey ee eee EN

ain

39a

APPENDIX E

KNOW ALL MEN BY THESE PRESENTS:

THE STATE OF TEXAS)

COUNTY OF Gillespie +)

THAT WE, Walter Allen Rothgery, as principal, and

HELEN ALLRED D/B/A A-TEX BONDING, as Sureties,

are held and firmly bound unto the State of Texas in the pe-

nal sum of Five Thousand ($5,000) Dollars, for the payment

of which sum, well and truly to be made, and in addition all

necessary and reasonable fees and expenses that may be in-

curred by Peace Officers in rearresting principal in the

event the conditions of this bond are violated, we do bind

ourselves, our heirs, executors and administrators, jointly

and severally by these presents.

THE CONDITION OF THE ABOVE OBLIGATION

IS SUCH that whereas the above named principal, Walter

Allen Rothgery stands charged by complaint duly filed in

the Justice of Peace Court, Precinct No.___, of Gillespie

County, Texas with the offense of a felony,

to wit:

Unlawful Possession of a Firearm by a Felon

And the said Walter Allen Rothgery was, by order of said

Magistrate, required to give bail in the sum of $5,000 for his

personal appearance before the 216th District Court

of Gillespie County, Texas.

NOW if the said Walter Allen Rothgery shall well and

truly make his personal appearance instanter before the

216th District Court of Gillespie County, Texas, as its

present term, if now in session, or at its next regular term if

now in vacation, to be held at the Court House of Gillespie

County, in the City of Fredericksburg Texas, and further

shall well and truly make his appearance before any other

court to which the same may be transferred and for any and

all subsequent proceedings that may be had relative to the

said charge in the course of the criminal action based on said

charge, and there remain from day to day and from term to

40a

term of said court, until discharge by due course of law, then

and there to answer said accusation against him, this obliga-

tion shall become void; otherwise to remain in full force and

effect.

WITNESS OUR HANDS this the 16th day of July

2002.

Examined, approved and taken this 16th day of July 2002.

Milton Jung

Sheriff Gillespie County, Texas

By /s/ Deputy

ls/ Principal

78 FM 2093 (Box 218 B) Fby TX70614

A-Tex Bonding Surety

P.O. Box 276, Buchanan Dam, Texas 78609

(512) 793-2876

ls/ Surety

[STAMP: received 1-21-03 from G.C.S.D.]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.