Rothgery v. Gillespie County, Tex.

• Decision Date: 29 June 2007
• Docket Number: No. 06-50267.,06-50267.
• Citation: 491 F.3d 293
• Parties: Walter Allen ROTHGERY, Plaintiff-Appellant, v. GILLESPIE COUNTY, TEXAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

491 F.3d 293

Walter Allen ROTHGERY, Plaintiff-Appellant, v. GILLESPIE COUNTY, TEXAS, Defendant-Appellee.

No. 06-50267.

United States Court of Appeals, Fifth Circuit.

June 29, 2007.

William Gerow Christian (argued), Graves, Dougherty, 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, R. 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 counsel does not attach in Texas when he appears before a magistrate 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 arrestee's appearance 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 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 Procedure, 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).¹ Rothgery signed a document reflecting that the magistrate did so and that Rothgery 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 the intention to waive right to counsel at this time."² 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. Rothgery, did then and there commit the offense of unlawful 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 company states, among other details of Rothgery's arrest, that "Rothgery stands charged by complaint duly filed in the Justice of Peace Court."

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 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, 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 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 appointment-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 discovered had counsel been timely appointed. Gillespie County moved for summary judgment on the ground that Rothgery's 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.³

II. 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 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.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

III. DISCUSSION

The Sixth Amendment, which is applicable to the states through the Fourteenth Amendment,⁴ provides in relevant part that "[i]n 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, preliminary hearing, indictment, information, or arraignment."⁵ 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 relevant time is when `the government has committed itself to prosecute' and `a defendant finds himself faced with the prosecutorial forces of organized society.'"⁶ 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 determine when adversary judicial proceedings commenced).

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 preparing the "complaint affidavits used to secure" the warrant. Id. 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 prosecutors were unaware of and uninvolved in either event.⁷ Id. at 1208-09.

It is undisputed in this appeal that the relevant prosecutors 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 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 offense 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 proceedings); cf. Clawson v. Wharton County, 941 S.W.2d 267, 272 (Tex.App. — Corpus Christi...