Appendices — Rothgery v. Gillespie County

App. 1

491 F.3d 293

APPENDIX A

United States Court of Appeals,Fifth Circuit.

Walter Allen ROTHGERY, Plaintiff-Appellant,

v.

GILLESPIE COUNTY, TEXAS,

Defendant-Appellee.

No. 06-50267.

June 29, 2907.

William Gerow Christian (argued), Graves, Dough-

erty, Hearon & Moody, Andrea M. Marsh, Harry

Williams, IV, Texas Fair Defense Project, Austin, TX,

for Rothgery.

Charles Straith Frigerio (argued), Hector X. Saenz,

Law Offices of Charles S. Frigerio, San Antonio, TX,

for Defendant-Appellee.

Susanna Dokupil, KR. Ted Cruz, Austin, TX, for

Amicus Curiae, State of TX.

George E. Dix, University of Texas School of Law,

Austin, TX, for Amicus Curiae University of Texas

School of Law.

Appeal from the United States District Court for the

Western District of Texas.

Before KING, WIENER, and OWEN, Circuit Judges.

KING, Circuit Judge:

In McGee v. Estelle, we held that a warrantless

arrestee’s Sixth and Fourteenth Amendment right to

App. 2

counsel does not attach in Texas when he appears

before a magistrate for statutory warnings if prosecu-

tors 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 arrestee’s appear-

ance involved not only statutory warnings, 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 adversary judicial proceedings for

purposes of the Sixth and Fourteenth Amendment

right to counsel, we AFFIRM the district court’s order

granting summary judgment for Gillespie 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 felony 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 felony conviction, the officers booked Rothgery

App. 3

into the Gillespie 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, Rothgery was brought

before a Justice of the Peace (the “magistrate”) to be

informed of the accusation against him and to be

given statutory warnings under Article 15.17 of the

Texas Code of Criminal Prc:edure, which provides for

warnings generally equivalent to those required by

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966).' Rothgery signed a document

reflecting that the magistrate did so and that Roth-

gery stood “accused of the criminal offense of]]

unlawful possession of a firearm by a felon which will

be filed in 21st District Court.” On the document, the

magistrate swore that “(t]he accused has announced

' 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 “immediately 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 afford counsel, to remain silent, to have an attorney

present during interviews with officers of the state, to terminate

interviews at any time, and to have an examining trial to probe

the existence of probable cause. Jd.art. 15.17. The magistrate

may also “admit the person arrested to bail if allowed by law.”

Id.

App. 4

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, Walter A. Roth-

gery, did then and there commit the offense of unlaw-

ful possession of a firearm by a felon-3rd degree

felony.” 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 acknowledge I have examined the foregoing

affidavit and have determined that probable cause

existed for the arrest of the individual accused

therein.” After the appearance, Rothgery 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 Justice of Peace Court.”

* 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 document, only the words

“waive right to counse]” were underlined, and Rothgery says

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

reflect this limited waiver.

App. 5

Rothgery says that he repeatedly requested

counsel in the months following his release, but no

counsel was appointed. 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 magis-

trate 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, 2003. Once appointed, Rothgery’s counsel

soon obtained records establishing 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 Gillespie County under 42 U.S.C. § 1983,

alleging that the county violated his Sixth and Four-

teenth Amendment right to counsel by following a

policy of denying appointed counsel to arrestees

released from jail on bond and by failing to ade-

quately train and monitor those involved in the

appointment-of-counsel process. Rothgery’s conten-

tion 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 underly-

ing his arrest would have been discovered had coun-

sel been timely appointed. Gillespie County moved for

summary judgment on the ground that Rothgery’s

‘a

App. 6

Sixth and Fourteenth Amendment right to counsel

did not attach until his indictment on January 17,

2003, which marked the initiation of adversary

judicial proceedings against him. The district court

granted the motion on February 2, 2006, and issued a

take-nothing final judgment. Rothgery appeals.’

Il. STANDARD OF REVIEW

We review a grant of summary judgment de novo,

viewing all evidence in the light most favorable to the

nonmoving party and drawing all reasonable infer-

ences 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.’” Jd. (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91

L.Ed.2d 202 (1986)).

* 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.

App. 7

III. 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, pre-

liminary hearing, indictment, information, or ar-

raignment.” Kirby v. Illinois, 406 U.S. 682, 688-89,

92 S.Ct. 1877, 32 L.Ed.2d 411 (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 rele-

vant time is when ‘the government 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, 83 S.Ct. 792, 9

L.Ed.2d 799 (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 stages” of the pro-

ceedings, absent a valid waiver. See Michigan v. Jackson, 475

U.S. 625, 629-30 & n. 3, 632 n. 5, 106 S.Ct. 1404, 89 L.Ed.2d 631

(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.

App. 8

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

Cir.1978) (quoting Kirby, 406 U.S. at 689, 92 S.Ct.

1877); 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 deter-

mine when adversary judicial proceedings com-

menced).

Following this approach in Lomax v. Alabama,

we instructed 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 magistrate’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 pre-

paring the “complaint affidavits used to secure” the

warrant. Jd. at 415-16. Similarly, we held in McGee v.

Estelle that in Texas, “an adversary criminal] proceed-

ing 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

* “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. Illinois, 487 U.S. 285, 295-96 & n. 8, 108

S.Ct. 2389, 101 L.Ed.2d 261 (1988), although the ultimate Sixth

Amendment consequences of certain state procedures is a

matter of federal law.

App. 9

appearance before a magistrate for Article 15.17

warnings did not initiate adversary judicial proceed-

ings, as prosecutors were unaware of and uninvolved

in either event.’ Jd. at 1208-09.

It is undisputed in this appeal that the relevant

prosecutors were not aware of or involved in Roth-

gery’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 Roth-

gery’s appearance had any power to commit the state

to prosecute without the knowledge or involvement 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 of-

fense and arresting offenders), with id. art. 2.01-.02

(designating district and county attorneys as the

representatives of the state in all criminal cases and

” 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 prosecuto-

rial knowledge or involvement. In context, the statement merely

clarified that prosecutors do not participate in such an appear-

ance, nor are formal charges filed. We have not held that

prosecutors must actually file the document that initiates

adversary judicial proceedings, see, e.g., Felder, 765 F.2d at 1246,

1247-48 (noting that a police officer’s filing of an affidavit and

criminal complaint commenced adversary judicial proceedings),

but merely that adversary judicial proceedings cannot initiate

without some prosecutorial awareness or involvement, McGee,

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

App. 10

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 prose-

cute 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 inter-

preted 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 appearance.

Rothgery raises several arguments against this

conclusion. First, he contends that McGee’s holding on

prosecutorial involvement is not good law, as the

Supreme Court has twice found adversary judicial

proceedings to have been initiated without mention-

ing whether prosecutors were involved. See Michigan

v. Jackson, 475 U.S. 625, 629 n. 3, 106 S.Ct. 1404, 89

L.Ed.2d 631 (1986); Brewer v. Williams, 430 U.S. 387,

399, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). However,

neither case addressed the issue of prosecutorial

involvement, much less the relevance of prosecutorial

involvement 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 pretrial events that initi-

ate adversary judicial proceedings. Although Roth-

gery argues that the arraignment in Jackson was

functionally no different than his appearance here,

the state supreme court opinion preceding Jackson

App. 11

establishes that the prosecutor’s office approved and

issued the complaints and warrants that led to the

arraignment. See People v. Bladel, 421 Mich. 39, 365

N.W.2d 56, 71-72 (1984). And while the extent of

prosecutorial involvement in Brewer was _ unad-

dressed, 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, 97 S.Ct. 1232 (“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 involved the recitation of statutory warn-

ings, whereas Rothgery’s appearance included statu-

tory warnings and a probable cause determination

that was based on a police officer’s affidavit. Rothgery

* 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 certain ‘critical’ pretrial proceedings

. recognizing that at those proceedings, ‘the accused [is]

confronted, just as at trial, by the procedural system, or by his

expert adversary, or by both.’” 467 U.S. 180, 189, 104 S.Ct. 2292,

81 L.Ed.2d 146 (1984) (citing United States v. Wade, 388 U.S.

218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and quoting United

States v. Ash, 413 U.S. 300, 310, 93 S.Ct. 2568, 37 L.Ed.2d 619

(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

adversary judicial proceedings are initiated.

App. 12

contends that the affidavit, which related the events

underlying the arrest and stated that the officer

“chargeld]” that Rothgery committed the offense of

being a felon in possession of a firearm, constituted a

“complaint” or an otherwise formal charge that

initiated adversarial proceedings.”

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 TEX. CONST.

art. I, § 10; TEX.CODE CRIM. PROC. ANN. arts.

21.01, 21.20; GEORGE E. DIX & ROBERT O. DAW-

SON, 41 TEXAS PRACTICE: CRIMINAL PRACTICE

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

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

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

county attorney ... chargling) the commission of an

* Additionally, Rothgery asserts that his appearance before

the magistrate commenced the prosecution because a magistrate

has exclusive jurisdiction over a defenuant’s case upon the filing

of a felony complaint until superseded by indictment. See Ex

parte Clear, 573 S.W.2d 224, 229 (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 initiation

of adversary proceedings when prosecutors are unaware of and

uninvolved in the proceedings. Indeed, Clear itself involved a

complaint that was sworn before a prosecutor and filed by the

prosecutor with the magistrate. Jd. at 225-26.

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).

App. 13

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 arrest warrant, see

Huynh uv. State, 901 S.W2d 480, 481 n. 3

(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 process,” 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 rou-

tinely filed in felony prosecutions and may reflect

prosecutors’ decisions to pursue formal felony charges

in the particular cases.”). Because “the process of

prosecution is usually initiated by the filing of a

criminal ‘complaint’” serving that latter function,

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

Texas Court of Criminal Appeals’ have construed

felony complaints to be sufficient to initiate adversary

judicial proceedings.” See, e.g., Felder v. McCotter,

"' 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.

" 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 proceed-

ings, the Texas Court of Criminal Appeals later observed that

Nehman’s holding was based on the presence of “unspecified

(Continued on following page)

App. 14

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, 108 S.Ct. 2389, 101 L.Ed.2d 261

(1988); Forte v. State, 707 S.W2d 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 circum-

stances involved in the filing of the dispositive com-

plaint or addresses an affidavit that was filed after a

warrantless arrest to support a magistrate’s probable

cause inquiry at an Article 15.17 warnings appear-

ance. In fact, in similar circumstances involving a

warrantless arrest, a felony complaint, and a magis-

trate’s probable cause determination at an Article

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 relationship between a

complaint and the commencement of a prosecution in

Texas is less clear than Rothgery claims.” See Green

‘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 notation 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 discuss-

ing the indeterminacy of Texas law on the question of which

procedures serve to initiate adversary judicial proceedings and

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

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

(Continued on following page)

App. 15

v. State, 872 S.W.2d 717, 720 (Tex.Crim.App.1994). As

complaints may be used for different purposes, we

simply cannot assume that the affidavit filed in 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

formalistic question of whether the affidavit here

would be considered 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 uncertain."* Instead, we

must look ‘o the specific circumstances of this case

and the nature of the affidavit filed at Rothgery’s

when adversary judicial proceedings commence. For even if the

felony complaint was sufficient to mark the initiation of adver-

sary judicial proceedings, ... nothing occurred at appellant’s

fhearing) that would render it a ‘critical stage’ of the prosecution

against him.” Jd. at 720.

* As Gillespie County points out, Article 15.04 falls within

the “Arrest Under Warrant” chapter of the Texas Code of

Criminal Procedure, indicating that it may only apply to affida-

vits offered in support of an arrest warrant. Additionally, the

provision refers to “[t)he affidavit” made before the magistrate or

prosecutor, TEX.CODE CRIM. PROC. ANN. art. 15.04 (empha-

sis 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 equiva-

lent.

App. 16

appearance before the magistrate. And the summary

judgment evidence, considered in the light most

favorable to Rothgery, fails to establish that adver-

sary judicial proceedings 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 “Affidavit of Probable Cause,” it primarily

consisted of the officer’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 “determine[] that

probable cause existed for the arrest.” The inquiry

and its timing shortly after arrest were thus consis-

tent with the probable cause determination required

by Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 354,

43 L.Ed.2d 54 (1975)," and County of Riverside v.

McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114

L.Ed.2d 49 (1991), for a person arrested without a

warrant. And another form signed by the magistrate

to memorialize the warnings given to Rothgery indi-

cated that charges “will be filed” in the district court,

not that they were being filed concurrently with the

magistrate.

'* The Court in Gerstein also recognized that such probable

cause determinations typically are non-adversarial in nature

and do not constitute “critical stages” requiring counsel. 420

U.S. at 120-22, 95 S.Ct. 854.

App. 17

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 identification 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 proceedings had not initiated).

Most significantly, the summary judgment evi-

dence reflects no prosecutorial knowledge of or in-

volvement in the arrest and magistrate appearance,

and Rothgery provides no reason to believe that the

officer alone was empowered to commit the state to

prosecute Rothgery. Indeed, it took prosecutors

roughly six months after the arrest to seek an in-

dictment against Rothgery. Without any evidence to

indicate that the affidavit actually served to initiate

the prosecution at the time of Rothgery’s magistrate

appearance, we conclude that the filing of the affida-

vit was part of the investigatory process, serving

solely to validate the arrest without committing the

state to prosecute.

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

word “charged” on Rothgery’s bond form persuasive.

App. 18

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the

district court’s order granting summary judgment to

Gillespie County.

App. 19

APPENDIX B

413 F. Supp.2d 806

United States District,W.D. Texas, Austin

Division.

Walter Allen ROTHGERY, Plaintiff,

v.

GILLESPIE COUNTY, TEXAS, Defendant.

No. A-04-CA-456LY.

Feb. 2, 2006.

William Christian, Graves, Dougherty, Hearon &

Moody, Andrea M. Marsh, Director, Texas Fair De-

fense Project, Austin, TX, for Walter Allen Rothgery,

Plaintiff.

Charles Straith Frigerio, Attorney at Law, San Anto-

nio, Hector Xavier Saenz, Law Ofcs. Of Chas. S

Frigerio, for Gillespie County, TX, Defendant.

YEAKEL, District Judge.

Before the Court are Defendant Gillespie

County’s Motion for Summary Judgment filed July

18, 2005 (Doc. # 28); Plaintiff’s Response in Opposi-

tion to Defendant’s Motion for Summary Judgment

filed August 8, 2005 (Doc. # 32); Plaintiff’s Appendix

of Summary Judgement Evidence filed August 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. Having considered the motion,

response, and reply, as well as argument of counsel,

App. 20

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, because 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 before Judge Car! Schoessow, Justice of the

Peace, Precinct # 2, Gillespie County.’ At that time,

' 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 Roth-

gery’s version of the facts.

* Because Rothgery was arrested without a warrant, Texas

law requires 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 affidavit filed

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

(Continued on following page)

App. 21

Judge Schoessow presented Rothgery with a form

“Warning by Magistrate (Setting Bail & Right to

Attorney) State of Texas, County of Gillespie,” which

Rothgery submitted as part of his summary-judgment

proof. The form reflects that Judge Schoessow in-

formed 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.”

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

interview with peace officers or attorneys representing the state,

of his right to terminate the interview at any time, of his right to

have an examining trial, and of his right to request the ap-

pointment of counsel if the person cannot afford counsel. See

TEX CODE CRIM. PROC. ANN. art. 15.17(a) (West Supp.2005).

The magistrate is further required to inform the person arrested

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.

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

Rothgery testified 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

(Continued on following page)

App. 22

As part of his summary-judgment proof, Roth-

gery 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 examined the affidavit and determined

that probable cause existed for the arrest of Rothgery.

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, Rothgery 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

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

According to Rothgery, Judge Schoessow told him that he would

have to wait in jail until an appoin‘ssent was made, if Rothgery

wanted an attorney appointed 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

Rothgery’s arrest. Because the amendment did not materially

alter the section as it existed then, the current version is cited

for simplicity.

App. 23

attorney was appointed for him based on the July 24,

2002 request.

As is true of the July 15, 2002 request, this

second request is not a part of the summary-

judgment proof before this Court. Rothgery’s sum-

mary-judgment proof does include the notary log of

Barbara Crenwegle, the administrative assistant to

the Gillespie County Judge and Commissioners.

Crenwegle’s notary log reflects that Crenwegle nota-

rized a request for appointment of an attorney and an

affidavit in support of an application for appointment

of an attorney on July 24, 2002, for “Walter A. Roth-

gery.

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, 2003, six months after Rothgery’s

arrest, 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 increased 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 testified in his deposition that he thought he

appeared before Judge Schoessow on January 19, 2003, but that

(Continued on following page)

App. 24

Rothgery inquired about the status of his last request

for appointment of counsel, the July 24, 2002 written

request. Rothgery 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 ap-

pointment of counsel, and was told that they knew

nothing of such request. On January 23, 2003, Roth-

gery completed a fourth written request, and employ-

ees at the Comanche County jail faxed the request to

Gillespie County. Based on this request, State Dis-

trict Judge Stephen Ables immediately appointed

counsel to represent Rothgery. The January 23, 2003

he was unsure. As part of its summary-judgment proof, Gillespie

County submitted the second “Warning by Magistrate (Setting

Bail & Right to Attorney) State of Texas, County of Gillespie”

form issued to Rothgery, and this form reflects that Rothgery

appeared before Judge Schoessow on January 19, 2003.

App. 25

request is part of the summary-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 dismiss 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.

See42 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 proce-

dures concerning appointment of counsel for indigent

defendants. Rather, Rothgery complains about un-

written policies and customs concerning appointment

of counsel for indigent defendants that he alleges

both the county and state courts follow in Gillespie

County.”

* As part of his summary-judgment proof, Rothgery submit-

ted Gillespie 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.

App. 26

Specifically, Rothgery alleges that Gillespie

County follows a policy, practice, and custom that

denies access to appointed counsel to a person

charged with a felony, if that person is released from

jail on bond, regardless of the person’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 finan-

cial 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 preliminary processing of requests for appointed

counsel has been delegated; thus creating an unrea-

sonable risk that applications 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

counsel, creating an unreasonable risk that attorneys

appointed to represent indigent criminal defendants

will not promptly contact those defendants, thereby

denying meaningful access to counsel. Seeking mone-

tary damages against Gillespie County, Rothgery

claims these policies and customs injured him be-

cause, had be been timely appointed counsel in July

2002, the charges against him would have been

resolved before he was indicted, rearrested, incarcer-

ated, and subjected to increased bail in January 2003.

App. 27

Gillespie County moves for summary judgment

on Rothgery’s entire action, arguing that there is no

constitutional duty to appoint counsel prior to the

initiation of adversary 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 magis-

trate 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

proceedings 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

probable-cause affidavit is not a felony complaint

under Texas law, and, even if it were, a felony com-

plaint may be insufficient to trigger to the Sixth

Amendment right to appointed counsel.

App. 28

As discussed fully below, this Court concludes

that neither the presentation of the probable-cause

affidavit to Judge Schoessow nor Rothgery’s appear-

ance before Judge Schoessow on July 16, 2002, initi-

ated adversary judicial 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’ss Sixth and Fourteenth

Amendment rights by failing to appoint counsel from

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

II. Summary-Judgment Standard

Summary judgment should be granted if the

record, taken as a whole, “together with the affida-

vits, if any, show that there is no genuine issue as to

any material fact and that the moving party is enti-

tled to a judgment as a matter of law.” FED. R. CIV.

P. 56(c); New York Life Ins. Co. v. Travelers Ins. Co.,

” 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 resolu-

tion of the Sixth Amendment issue is determinative of the entire

action, this Court need not address Gillespie County's other

grounds for summary judgment. Likewise, because the Court

determines that Rothgery’s Sixth Amendment right to counsel

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

Rothgery’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 counsel has been delegated and failure to ade-

quately monitor appointed counsel.

App. 29

92 F.3d 336, 338 (5th Cir.1996). The Supreme 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.” Celotex 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 ‘dem-

onstrate the absence of a genuine issue of material

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)

requires the nonmovant to go beyond the pleadings

and show by affidavits, depositions, answers to inter-

rogatories, admissions on file, or other admissible

evidence that specific facts exist over which there is a

genuine issue for trial. See Wallace v. Texas Tech

Univ., 80 F.3d 1042, 1047 (5th Cir.1996). The non-

movant’s burden may not be satisfied by conclusory

allegations, unsubstantiated assertions, metaphysical

doubt 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

App. 30

controversy, that is, when both parties have submit-

ted 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

judgment should be granted, an examination of the

substantive law is essential. Substantive law will

identify which facts are material in that “fo)nly

disputes over facts that might affect the outcome of

the suit under the governing law will properly pre-

clude 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).

Ill. 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 pur-

pose of the Sixth Amendment is to protect “the un-

aided layman at critical confrontations with his

adversary.” U.S. v. Gouveia, 467 U.S. 180, 189, 104

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

Amendment 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

App. 31

way of formal charge, preliminary hearing, indict-

ment, 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 adver-

sary judicial proceedings begin. See Hidalgo v. State,

983 S.W.2d 746, 752 (Tex.Crim.App.1999). In fact,

the “caselaw is somewhat indeterminate on the

question of what events may serve to initiate adver-

sary 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 particu-

lar 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 adver-

sary” in determining if an event is a critical stage. Jd.

Although this Court is bound by Texas courts’ inter-

pretation of the law governing its proceedings, this

Court is not bound by the opinions of Texas courts

concerning what constitutes a critical stage of prose-

cution under the Sixth Amendment. See Coleman v.

Alabama, 399 U.S. 1, 9, 90 S.Ct. 1999, 26 L.Ed.2d 387

App. 32

(1970) (rejecting Alabama Court of Appeal’s conclu-

sion 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 Affidavit of Probable Cause to

Judge Schoessow.* Rothgery argues 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 Proce-

dure, which states that “the affidavit made before the

magistrate or district or county attorney is called a

‘complaint’ if it charges the commission of an offense.”

TEX. CODE CRIM. PROC. ANN. art. 15.04 (West

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

Texas Code of Criminal Procedure titled “Arrest

Under Warrant.” 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

* 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.

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

“Arrest Without Warrant,” governs warrantless arrests. See

(Continued on following page)

App. 33

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 warrants. For

instance, in Huynh v. State, 901 S.W.2d 480, 481 n. 3

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

complaint is a sworn affidavit charging the commis-

sion of an offense and serves as the basis for an arrest

warrant.” Judge Meyers noted in his concurrence in

Green that

{i]t is well to remember in this context that

the word “complaint” has come to mean at

least two different things under Texas law.

First, it describes a sworn affidavit upon the

basis of which a magistrate may issue a war-

rant 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).

Green, 872 S.W.2d at 731 n. 5 (Meyers, J., concur-

ring). 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

TEX. CODE CRIM. PROC. ANN. arts. 14.01-14.06 (West 2005 &

West. Supp.2005).

App. 34

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).

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 possibil-

ity, 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 accused’s Article 15.17

warnings” were given and held the accused’s confes-

sion 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 proceedings” 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," including his

’ See supra note 2.

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

App. 35

right to counsel, before the Article 15.17 warnings

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 Ap-

peals has observed that Texas law requires prompt

probable-cause determinations for individuals ar-

rested without a warrant to satisfy the Fourth

Amendment. See Green, 872 S.W.2d at 721. Specifi-

cally, 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 condition of any significant pretrial restraint of

liberty.’” Id. citing Gerstein v. Pugh, 420 U.S. 103,

125, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). It thus ap-

pears to this Court that, under Texas law, the purpose

of presenting the probable-cause affidavit 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 con-

cludes that Article 15.04 does not apply to the prob-

able-cause affidavit presented to Judge Schoessow in

support of Rothgery’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

App. 36

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 presentation of the probable-cause affidavit to

Judge Schoessow, the Court agrees with Gillespie

County that Rothgery’s appearance before Judge

Schoessow on July 16, 2002, did not initiate adver-

sary judicial proceedings under Texas law. On July

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

sow advised Rothgery of his rights, informed him of

the crime accused, advised him of the right and

procedures for obtaining counsel, determined prob-

able 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 giving of

Article 15.17 warnings does not initiate adversary

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

600 (Tex.Crim.App.1978). The Wyatt court stated that

“li]t is clear that the form signed and relied upon by

appellant is simply an acknowledgment that a magis-

trate’s warning was given pursuant to Article

15.17.... We cannot conclude that informing the

defendant of the accusation against him constitutes

the initiation of adversary criminal procedures.” /d.

Further, the Green court observed that “[o]ther than

its Article 15.17 aspect, the PIA [preliminary initial

appearance], per se, is not a requirement of state

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App. 37

law.” Green, 872 S.W.2d at 722. The Green court

explained that nothing that occurred at the defen-

dant’s preliminary initial appearance “required the

aid of counsel to cope with any legal problem or assist

in meeting the prosecutorial adversary.” Jd. at 721.”

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

possibility that an attorney could contest bail “does

not convert the PIA [preliminary initial appearance]

into a critical stage.” Green, 872 S.W.2d at 722. Al-

though 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

magistrate for Article 15.17 warnings and the setting

of bail.

The Court concludes that no adversary judicial

proceedings were initiated against Rothgery under

Texas law on July 16, 2002, when Rothgery appeared

before Judge Schoessow. Gillespie County is correct

" 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 Crimi-

nal Appeals declined to hold that adversary judicial 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 probable-cause determination, following a warrantless arrest,

is not a critical stage, even if adversary judicial proceedings

have been initiated. See id.

App. 38

that Rothgery’s Sixth Amendment right to counsel did

not attach at that time.

This Court’s holding that neither the presenta-

tion of the probable-cause affidavit to Judge Schoes-

sow or Rothgerys appearance before Judge

Schoessow on July 16, 2002 initiated adversary

judicial proceedings against Rothgery under Texas

law is consistent with Supreme Court and Fifth

Circuit precedent. The Supreme Court has repeatedly

stated that “the initiation of judicial criminal proceed-

ings is far from a mere formalism.” Kirby, 406 U.S. at

689, 92 S.Ct. 1877. Rather, the initiation of judicial

criminal proceedings

is the starting point of our whole system of

adversary 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 defendant finds

himself faced with the prosecutorial forces of

organized society, and immersed in the intri-

cacies of substantive and procedural criminal

law. It is this point, therefore, that marks the

commencement of the ‘criminal prosecutions’

to which alone the explicit guarantees of the

Sixth Amendment 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 “criti-

cal stages” of criminal proceedings, it has done so in

limited circumstances. See Gouveia, 467 U.S. at 189,

App. 39

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 U.S. at 310, 93 S.Ct. at 2574, ina

situation where the results of the confronta-

tion “might well settle the accused’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. Accord-

ingly, 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 erroneous or

improper prosecution.” Jd. at 9, 90 S.Ct. 1999.

The Fifth Circuit has held that an adversary

criminal proceeding has not begun where the prose-

cution officers are unaware of either the charges or

the arrest. See McGee v. Estelle, 625 F.2d 1206, 1208

(5th Cir.1980). The Fifth Circuit reasoned that an

appearance before a magistrate for statutory warn-

ings 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.

App. 40

Rather, such an appearance “is for the purpose of

complying with tbe requirements set forth in

Miranda v. Arizona.” Id.

The Court notes that the summary-judgment

record does not reflect any involvement of the Gilles-

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

There is no summary-judgment proof that a prosecu-

tor from the Gillespie County District Attorney’s

Office was present at Rothgery’s July 16, 2002, ap-

pearance before Judge Schoessow or involved in any

way in the probable-cause determination. To the

contrary, the summary-judgment proof demonstrates

that no decision had been made by the Gillespie

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

prosecute Rothgery for the criminal offense of unlaw-

fully 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 district court.

For this Court to find that Rothgery’s Sixth

Amendment right to counsel attached on July 16,

2002, the Court would have to conclude that a war-

rantless arrest plus Article 15.17 warnings and a

subsequent probable-cause determination, 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

prosecutions, which necessarily implies involvement,

or, at a minimum, awareness of the prosecutor. See

sal * Se ed

App. 41

McNeil v. Wisconsin, 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 initiation of adver-

sary judicial criminal proceedings — whether by way

of formal charge, preliminary hearing, indictment,

information, or arraignment”) quoted in Texas uv.

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 violating 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.

* In explaining that the Sixth Amendment right to counsel

does not attach at the time of arrest, then Justice Rehnquist

differentiated between the Sixth Amendment rights to counsel

and to speedy trial. Although 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 counse] exists to protect the accused

during trial-type confrontations with the prosecutor, the speedy

trial right exists primarily 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 accused 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 U.S. at 8, 102 S.Ct. at 1502. See Barker

(Continued on following page)

App. 42

Finally, such a holding would be inconsistent with

Texas law regarding initiation 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.

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 cause affidavit to Judge Schoessow or by

Rothgery’s appearance before Judge Schvessow. 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."

v. Wingo, 407 U.S. 514, 532-533, 92 S.Ct. 2182, 2192-2193, 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 proceedings

-against Rothgery, as Rothgery was not held “to answer a crimi-

nal charge,” but, instead, was only informed of the accusation

against him.

“ The Court recognizes that Rothgery testified in his

deposition that he requested counsel on January 19, 2003, and

that no counsel was appointed based on this request. As previ-

ously noted, this request is not included in the summary-

judgment proof. Only the January 23, 2003 request, 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.

(Continued on following page)

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App. 43

Turning to Rothgery’s Fourteenth Amendment

allegations, Rothgery alleges that Gillespie County

violated his right to due process and to equal protec-

tion under the law by denying him access to counsel,

in part, by delaying appointment of counsel for six

months. The Sixth Amendment’s right to counsel

applies to the states through the Fourteenth Amend-

ment. 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 Rothgery on July

16, 2002, and that his right to counsel under the

Sixth Amendment did not attach at that time, Gilles-

pie 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 protection clauses.

Gillespie County’s failure to appoint counsel on January 19,

2003, is, at best, negligence, and not indicative of a policy,

practice, or custom to avoid appointing counsel. As soon as

Judge Ables was advised of Rothgery’s January 23, 2003 re-

quest, Judge Ables appointed counsel.

App. 44

IV. Conclusion

IT IS THEREFORE ORDERED that Defen-

dant Gillespie County’s Motion for Summary Judg-

ment (Doc. # 28) is GRANTED. .

App. 45

APPENDIX C

Warnin Magistr ting Bail & Righ

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: unlaw-

ful possession of a firearm by a felon which is/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 present. You have the right to talk to your

lawyer before being questioned, to have your law-

yer with you while being 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 writ-

ten. Any statement you make can be used as evi-

dence against you in court.

4. In felony cases, you have the right to an examin-

ing trial.

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

Bepsonat Bone Bond Not Determined |

App. 46

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.

You would have to fill out a sworn statement

about your work, what you own, your expenses

and family.

If you need help filling out the form, someone will

help you.

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 decide if you get a court ap-

pointed 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:

5.

The law enforcement agency having custody of

the named accused has brought the accused be-

fore this magistrate not later than 48 hours after

arrest.

I have informed the accused of his/her right to

request appointment of an attorney, if indigent,

and the procedures for requesting appointment of

an attorney.

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.

App. 47

4. I have ensured that all reasonable assistance in

completing the necessary forms for the request-

ing appointment of an attorney has been pro-

vided.

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

of the right to appointed attorney has been pre-

pared in accordance with the law and such record

consists of this document signed by me as Magis-

trate, a copy of which was provided to the ac-

cused person.

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

the duly elected or appointed Justice of the Peace,

__ Precinct #1/ ~_ Precinct #2/ ____ Fredericksburg

Municipal Judge in Gillespie County, Texas and

further certify that:

(“~) The accused has announced the intention to

waive right to counsel at this time WR (initials)

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

and does not wish appointment of attorney at

this time. (initials)

( ) The accused is being held on a misdemeanor

accusation and has claimed s/he is indigent and

has requested court appointed counsel. The Affi-

davit 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 attorney in accor-

dance with the plan approved by the District

Judge of Gillespie County, TX/

App. 48

( ) The accused is being held on a felony accusation

and has claimed s/he is indigent and has re-

quested court appointed counsel. The Affidavit

of Indigence and Request for Attorney is to be

referred within 24 hours to: the District Judge

of Gillespie County, TX for determination of

indigence and, if appropriate, appointment of

attorney in accordance with the plan approved

by the District Judge of Gillespie County,

TX/

x /s/ Walter Rothgery /s/ Carl E. Schoessow

PERSON WARNED Magistrate, Gillespie

County, Texas

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

Witness: /s/ Ray Rodriguez