2275.

Requirement that arrestee be taken before magistrate, generally; arrest

without warrant

West's Key Number Digest

West's Key Number Digest, Arrest 70 to 70(2)

In each instance enumerated in the Code of Criminal Procedure, the person

making an
arrest without a warrant must take the person arrested or have him or her
taken
before a magistrate specified by statute "without unnecessary delay," and
such
magistrate must "immediately" perform the duties described by
statute.[FN82] The
magistrate before whom the arrestee must be brought is[FN83]—

— the magistrate who ordered the arrest.

— a magistrate of the county where the arrest was made without an order.
— a magistrate in a county bordering the county in which the arrest was
made, if
necessary to provide the statutorily described warnings more expeditiously
to the
person arrested.

In determining whether the arresting party has complied with this

requirement, the
period of detention must be considered with regard to such matters as
judicial
accessibility, the availability of facilities, the unavoidable duties of the
officer
making the arrest, the intervention of Sundays or holidays, and the
intoxication or
mental condition of the arrested person.[FN84] In endeavoring to take the
arrested
person before the magistrate, the officer must expend all the effort that a
highly
cautious person would employ in the same circumstances.[FN85]

A peace officer who is charging a person with committing an offense that is

a Class
C misdemeanor other than an offense under the provision of the Tex. Pen.
Code Ann.
relating to public intoxication may, instead of taking the person before a
magistrate, issue a citation to the person that contains written notice of the
time
and place the person must appear before a magistrate, the name and address
of the
person charged, and the offense charged.[FN86]

CUMULATIVE SUPPLEMENT

Statutes:

Tex. Code Crim. Proc. Ann. art. 15.17 was amended in 2001 by the addition
of
Subsections (e) and (f) which provide that in each case in which a person
arrested
is taken before a magistrate as required by Subsection (a), a record shall be
made
of the magistrate's informing the person of his or her right to request
appointment
of counsel; the magistrate's asking the person if he or she would like to
request
counsel and whether the person requested counsel. This record may consist
of written
forms, electronic recordings, or other documentation under Art 26.04(a).
Tex. Crim. Proc. Code Ann. art. 14.06, as amended in 2005, now provides
that a
person arrested may be taken before a magistrate in any other county of this
state,
rather than before a magistrate in the county bordering a county in which the
arrest
was made..

Tex. Crim. Proc. Code Ann. art. 15.17, as amended in 2005, provides that an
arrested
person may be taken before a magistrate in any county of this state in order
to more
expeditiously provide the warnings required by this article.

Tex. Crim. Proc. Code Ann. art. 15.18, as amended in 2005, provides that an
arrested
person may be taken before a magistrate in any county of this state in order
to more
expeditiously provide the warnings required by article 15.17. The arrested
person
may be taken before a magistrate by means of an electronic broadcast
system.

Tex. Code Crim. Proc. Ann. art. 14.06(a) was amended in 2001 and now
provides that
the person making the arrest or the person in custody of the person arrested
shall
take the person arrested or have him or her taken without undue delay, but
not later
than 48 hours after the person is arrested before an appropriate magistrate
under
this subsection.

Tex. Code Crim. Proc. Ann. art. 15.17(a) was amended in 2001 to provide
that the
person making an arrest or the person having custody of the person arrested
shall
without unnecessary delay, but not later than 48 hours after the person is
arrested,
take the person arrested or have him or her taken before an appropriate
magistrate
under this subsection. In addition to his or her duties under the former
version of
this subsection, the magistrate must now also inform the person arrested of
his or
her right to request the appointment of counsel if the person cannot afford
counsel
and of the procedure for requesting counsel. The amendment also requires
that the
magistrate shall inform a person who does not speak and understand the
English
language or is deaf of these rights in a manner consistent with Tex. Code
Crim.
Proc. Ann. art. 38.30 and 38.31.

Tex. Code Crim. Proc. Ann. art. 15.17(a), with regard to the duty of a
magistrate to
admit an arrested person to bail if allowed by law, was amended in 2001 to
provide
that the magistrate must first determine if the person arrested is currently on
bail
for a separate criminal offense.

Cases:

Before officer may issue a citation and release defendant charged with
violating
Transportation Code, defendant must sign a promise to appear before a
magistrate; if
defendant does not promise to appear, officer is under no duty to release
him, but
could choose to take defendant immediately before a magistrate. Vernon's
Ann.Texas
C.C.P. art. 14.06 ; V.T.C.A., Transportation Code §§ 543.002, 543.003,
543.005.
Berrett v. State, 152 S.W.3d 600 (Tex. App. Houston 1st Dist. 2004), reh'g
overruled
, (Aug. 27, 2004) and petition for discretionary review refused, (Jan. 19,
2005).

Under both the Code of Criminal Procedure and the Transportation Code , a
peace
officer, in lieu of a custodial arrest, which requires promptly taking arrestee
before a magistrate, may issue a citation or notice to appear before a
magistrate to
a defendant who commits a Class C misdemeanor. Vernon's Ann.Texas
C.C.P. art. 14.06
; V.T.C.A., Transportation Code § 543.003. Berrett v. State, 152 S.W.3d 600
(Tex.
App. Houston 1st Dist. 2004), reh'g overruled, (Aug. 27, 2004) and petition
for
discretionary review refused, (Jan. 19, 2005).

Thirteen-hour delay between arrest for outstanding traffic violation and

appearance
before magistrate on aggravated kidnapping charge did not render detention
illegal
due to state's alleged failure to present defendant before magistrate without
unnecessary delay to allow him to pay his traffic ticket; defendant never
made
attempt to pay ticket before agreeing to give confession concerning
aggravated
kidnapping. Franks v. State, 90 S.W.3d 771 (Tex. App. Fort Worth 2002),
reh'g
overruled, (Sept. 12, 2002) and reh'g overruled, (Oct. 24, 2002).

[END OF SUPPLEMENT]
--------------------------------------------------------------------------------

[FN82] Tex. Code Crim. Proc. Ann. art. 14.06(a), referring to Tex. Code
Crim. Proc.
Ann. art. 15.17.
An arrested person must be taken before a magistrate within a reasonable
time after
the arrest. Ex parte Wright, 138 Tex. Crim. 350, 136 S.W.2d 212 (1940).
As to the magistrate's duties when the arrestee is brought before him or her,
see §
2278.
As to the requirement of taking an arrestee before a magistrate where he or
she is
arrested under a warrant, see § 2276.

[FN83] Tex. Code Crim. Proc. Ann. art. 14.06(a).

[FN84] Gilbert v. State, 162 Tex. Crim. 290, 284 S.W.2d 906 (1955).

[FN85] Robinson v. Lovell, 238 S.W.2d 294 (Tex. Civ. App. Galveston
1951), writ
refused n.r.e.

[FN86] Tex. Code Crim. Proc. Ann. art. 14.06(b), referring to Tex. Pen.
Code Ann. §
49.02, discussed in §§ 1387 et seq.

A.L.R. Library

Intoxication as ground for police postponing arrestee's appearance before

magistrate, 3 A.L.R. 4th 1057.