The Birds Nest - Training, Educational, & Opinions

OPINION: The Nueces County District Attorney Unsure How to Obtain Warrant or Summons Upon Filing an Information

The Nueces County District Attorney has requested the Texas Attorney General (AG) to issue an “opinion,” on a matter already described in the Texas Code of Criminal Procedures.

Specifically, the District Attorney wants to know if the County Court at Law can issue a capias (bench) warrant for a failure to appear to a setting, in which the defendant was not magistrated.

We believe, if the AG does a proper review, they will remember County Court at Law Judges are also magistrates.

They should also see the States (DA’s) obligation to notify the court when someone in the Judge’s docket is “without arrest,” so the Judge can perform magistrate review processes and issue a warrant for the allegation or a summons to appear.

There is no legal reason to issue a capias warrant for a matter which has yet to be magistrated in the misdemeanor process.

A magistration must occur before an arraignment, in the misdemeanor process and must be two separate settings.

The County Court at Law staff should be reviewing informations submitted by the DA so the Judge may conduct magistrate duties for the case filed within his/her venue and issue a warrant/summons or return the information for lack of probable cause.

In review of such matter, this type of opinion suggests a lack of probable cause review and an attempt to circumvent the due process of misdemeanor flow.

Here is the request for opinion:

What are your thoughts?