Rick Perry seeks writ of habeas corpus barring prosecution
Alleges that prosecution is unconstitutional infringement of speech and violates separation of powers.
Texas Governor Rick Perry has filed for a writ of habeas corpus barring his prosecution for use of his veto power. The full filing is embedded at the bottom of this post.
Via KENS5 News:
Attorneys for Gov. Rick Perry have filed a 60-page writ of habeas corpus to dismiss the charges filed against the governor.
The writ claims the charges of abuse of power and coercion filed against Perry are unconstitutional and that Perry was simply exercising his constitutional veto powers when he vetoed funding for the Public Integrity Unit last summer.
“By seeking to criminalize not merely the veto itself, but the Governor’s explanation for it as well, this prosecution also violates the Governor’s rights under Free Speech Clauses of the United States and Texas Constitution…” the writ says in part.
The writ also says the indictment violates the constitutional separation of powers and the speech or debate clause in the Texas Constitution.
Here’s part of the Introduction summarizing that the motion is based on claims of unconstitutionality, reserving the right to move later on to quash the indictments on the merits:
This is a pretrial application for writ of habeas corpus seeking to bar the prosecution of Applicant, Governor James Richard “Rick” Perry, on multiple constitutional grounds. Some of these grounds relate to defects apparent on the face of the statutes upon which this
indictment was based, and they could be raised by any person charged with an alleged violation of their terms. As Applicant will demonstrate, Section 36.03(a)(l) of the Texas Penal Code is fatally vague and overbroad, failing to give reasonable notice to any official about what is permissible conduct on the one hand and what is felonious conduct on the other…..In addition, both Section 36.03(a)(l) and Section 39.02(a) are vague and overbroad as applied to this case, and that is true regardless of whether they might pass constitutional muster in some other circumstances….
Even if the statutes under which the Governor is indicted were not unconstitutional on their face or as applied, the facts alleged by the State still fail on their face to set forth any violation of those statutes. Those arguments will not be addressed now, because pretrial habeas corpus is not the remedy for factual inadequacy, even when that inadequacy is as blatant as it is here. Rather, if this
case were to go forward, they will be raised in a motion to quash the indictment.
Rick Perry Writ of Habeas Corpus
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Comments
That is mighty fast work. A sixty page document in less than 10 days. Interestingly, they are following the strategy outlined by Chuck Skinner.
There is no mention of improper conduct of the Grand Jury.
Sixty pages in ten days? Please, that’s nothing, a single person could have output that easily in that time frame, that’s only 6 pages per day (double spaced even).
A team of lawyers can (and will) output HUNDREDS of pages of documents a day in big trials, especially when you start getting into corporate lawsuits.
You’re right of course but he was probably thinking of his days as an unwilling pro se litigant. That’s where you have to learn on the job while being held to fake standards that attorneys routinely ignore.
Don’t get me started. 🙂
What is the current status of this writ? Has a hearing been scheduled on it? Has a date to set a hearing been scheduled?
Well, except for the typo early on (“though” instead of “thought”), that’s a pretty interesting pleading.
What happens with these sort of things? Do they go to the trial judge first and work their way up the appeals process?
The pleading is addressed to the trial court. An “interlocutory appeal” of an adverse ruling by the trial court will go to the appropriate appeals court for that district next, if there is a next.
Essentially, the motion attacks the jurisdiction, or power, of the trial court to act on the indictment.
If I’m right… Again, not my area of law.
Succinctly, yes. An Interlocutory Appeal would go to the Third Court of Appeals in Austin, Texas. From there, as this is a “criminal” case, it would proceed to the Court of Criminal Appeals, which is the highest court for criminal matters in Texas (co-equal with the Texas Supreme Court, which only hears “civil” matters).
Interestingly to me, they make the argument that Gov. Perry was acting in a “legislative capacity” when exercising the veto and was therefore a member of a “governing body,” and thus the question is a matter for the “speech and debate” clause of the Texas Constitution.
Further, the Application goes on to make the argument that this is a “political question” and thus is simply nonjusticiable.
I haven’t read the damn thing…by this time of day my eyes are crossed, but…
seems like they offered a broadside of good law.
Only one has to strike home to hole the hull of the State.
I thought the petition for a writ raised some interesting issues. I found the claim that the Governor was covered by the debate clause fascinating — but I did not explore the cited cases.
It is an impressive job for less than ten days of work.
One avenue that could be pursued by a third party is a 14th Amendment Equal Protection Claim that attacks the very nature of the Public Integrity Unit.
The State funded Public Integrity Unit is overseen by a local Texas District Attorney’s Office. Yet the unit is charged (apparently through State Law) with oversight of State Officials. This raises an interesting 14th Amendment Equal Protection issue. It is an issue that can be litigated by citizens in a more conservative part of Texas.
Why should only citizens of Travis County be given the privilege of electing an official who performs the State function of overseeing the integrity of State Officials.? It seems that it would require a State-Wide Election.
In effect everyone outside of Travis County is being disenfranchised. There may even be potential Voting Rights Act claims.
Equal protection, huh? Now you’re getting REALLY nasty. Those poor widdle donkeycrats.
And you’re right, in my not humble opinion.
Whut we got here is a good ol’ Texas showdown.
I thought it was a Texas pissing contest.
You mean like in the “Ballad of Cow Patty”?
https://www.youtube.com/watch?v=OpapdB-bCFI
So, let me get this straight. The governor of Texas can constitutionally veto a budget item, but the Travis County prosecutor says he can’t tell anyone why he vetoed the item without running afoul of the law. (Perry was indicted not just for the veto, but because he threatened to use his veto authority to “coerce” a government employee.) How, then, is anyone supposed to know what the problem was that caused the governor to veto the item? This is obvious nonsense.
I think this writ will fail, largely because courts would prefer to avoid constitutional matters when they can. Still expecting the indictment to be quashed on its merits, or rather its lack thereof.
Not-a-lawyer question here: If this had not been filed, how long would it take at a minimum to get the indictment to be quashed on its merits? i.e. how long after the indictment does the case actually reach a judge if this had not been filed? My reasoning for asking is that I would think Perry would be taking a Least-Time approach to squash this abbomination as opposed to a Least-Cost or even Least-Risk approach. I would think any reasonable judge who sees this ooze over his desk would be looking for the most direct and foolproof way to get rid of it before any of the ooze gets on him, and I don’t know if filing a petition will get it to a judge faster than any other approach.
(In my ideal world, not only would the first judge who sees this stomp the indictment flat, but also drag the prosecutor over the coals to the maximum extent possible)
http://www.tdcaa.com/journal/expediting-pretrial-habeas-writs
That looks like a pretty good primer on the processes.
It’s worse than that (see my comment below) – he told a State Senator that he was going to veto it. The Senator (or someone in his office) leaked it to the press.
i.e. – Perry never “coerced” DA Lehmberg (one charge is coercion, the other charge is misusing funds that he VETOED, that is, that the executive branch never received). If anything, Watson coerced Lehmberg.
I agree with you that this is likely to fail in the trial court, but it’s not a waste of time, as it creates an opportunity for trial court error on matters of law that can be appealed.
The facial challenge will fail because no trial court (or Court of Appeals for that matter) wants to rule that a statute is unconstitutional on its face. The as-applied challenge will fail because the prosecution has not presented any evidence yet, so it is too early (it might succeed after the prosecution rests). My concern is that the State’s response to this application for writ of habeas corpus will be as muddled and confusing as the grand jury indictment, which will give the trial court cover to dismiss. If the State were to respond point-by-point, as federal practice requires, the likelihood of success would be much higher.
The application mentions several times that there will be a future motion to quash the indictment that will deal with the particulars of the indictment. That one actually could succeed.
“The facial challenge will fail because no trial court (or Court of Appeals for that matter) wants to rule that a statute is unconstitutional on its face.”
I disagree. They do it in Texas with some regularity, party because of our constitution.
They also do it on other predicates, and I mean district courts. A lot of Texas judges are pretty good, and they aren’t bashful.
From what I can gather from a cursory review “without any guiding principles” and “abuse of discretion” are almost synonymous under Texas law.
It is an abuse of discretion in Texas if the trial court fails to analyze the law correctly, or applies the law incorrectly to the facts.
Translation there may be more flexibility here on appeal than one might first think. I will save a more detailed review for Mr. Perry’s lawyers.
My feeling is that if the trial court wants to continue to this silliness, at some point the grownups in your highest Court will step in and say there is no jurisdiction.
The Thomas Phillips who is among those signing the brief is a former Chief Justice of the Texas Supreme Court.
IANAL, but I find these three items fascinating:
1. The petition provides extensive support for the understanding that the veto is a LEGISLATIVE function.
2. The Texas constitution has a debate clause such that all legislative debate is protected speech.
3. The governor (through his office staff) informed Senator Watson of his intent to line-item veto the PIU budget. He apparently did not communicate this veto threat outside of the legislative environment.
It is clear to this layman that this is protected speech as laid out in the debate clause of the Texas constitution.
What will be fun is to see the response.
Heh!
As I’ve said…there are a lot of Deemocrats who are looking for any way out of this without too much more stink adhering to them.
Yea, especially since so far it has had the exact opposite effect they had hoped. Of course to expect the effect they wanted bordered on delusional in the first place.
What exactly is the process and the deadlines for resolving this motion? When is the response brief due? Is a reply brief permitted, and if so, when is it due. Will oral argument be scheduled? When?
I don’t know what specifics of Texas criminal procedure, but I would not expect a ruling on this motion for several weeks.
Worst case scenario I would not expect this case to go to trial until sometime next year at the earliest.
Yea, I am betting the prosecutions uses every minute they have for their response and it will be filed at 4:45 pm on the last business day possible to drag this out further.
I was wondering, who appointed the “Special Prosecutor” for this case? Also, how much influence did the Drunk DA have on the proceedings?
The judge who made the appointment is a highly respected Republican judge from Bexar County (San Antonio). I do not know on what basis the matter came before him, but I do know the judge and respect him.
McCrum, the special prosector, is a former Assistant U.S. Attorney. Many federal statutes are vaguely worded so as to give prosecutors discretion who to go after (read Three Felonies a Day). I wonder if McCrum’s experience as a federal prosecutor led him to go to a place a state prosecutor might not have gone.
However this ends, McCrum has assured that his obituary will mention this indictment and it’s resolution.
Hey! It’s good practice to wait until the last minute to file & serve. Why give the enemy any more time than you have to? Besides, if they have a victory party planned because they think you’re gonna be late it will screw that up too.
So there’s that.
This is a bad idea. As if the Federal courts don’t ALREADY interfere too much with the states. The Texas courts should deal with this ridiculous prosecution.
My stupid comment, based upon another web site. It is fine as a local pleading.
Rick Perry’s actions in vetoing/threatening a veto/explaining himself were clearly legal. Perhaps his underlying motivations were somewhat political but not clearly illegal and even if his motive was arguably illegal his actions weren’t. They were clearly within his lawful powers as governor. This will get dismissed ultimately, hopefully sooner rather than later. The appropriate remedy for the improper use of executive power (if that’s what it was) is impeachment by the legislature.
“Perhaps his underlying motivations were somewhat political”
Politicians playing politics.
Now a felony, punishable by 100+ years in prison.
Wonder how Oyolo feels about this trend in jurisprudence?
🙂
–Andrew, @LawSelfDefense
Damn your eyes, Andrew…!!!
You had me researching an obscure ancient political philosopher named “Oyolo”…
Sec. 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant’s office or employment; or
(2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.
Obviously Perry violated no laws(1); nor did he misuse government property personnel or any other thing of value that ever came into his custody or possession.
Official oppression–
(a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
– See more at: http://codes.lp.findlaw.com/txstatutes/PE/8/39/39.03#sthash.yU1n5a06.dpuf
He didn’t do any of these things either. Not even close. He vetoed funding for a convicted drunkard’s ethics agency. It’s not her money, after all–it’s the State of Texas’s.
Did anyone notice Tom Philips bar card #? 102. I guess former chief justices get some perks.
To answer some of the procedural questions, based on my reading of the piece I cited (above).
The trial court “must” set a hearing on the writ at its earliest convenience. IF they don’t, the applicant for the writ can seek mandamus…or an order from an appeals court to do right.
The “hearing” can be either a full evidential hearing in open court, or (it seems) a hearing on “submission” (where both sides allow the court to consider the matter on the papers submitted).
“One last but critical matter on appeals: A trial court’s decision on a writ will not be disturbed on appeal unless the trial court acted without reference to any guiding principles.”
So, the trial court has considerable discretion, and review is pretty limited.
If Perry actually went up to Lehmberg and said “We cannot have someone who did what you did heading up the Public Integrity Unit. Resign or I will cut your funding.” I would agree with him.
However laws have to apply uniformly. How is what they claim Perry dod and what Rod Blagoyovich did different from a legal perspective?
I’m not sure that would even be illegal, but I am not a lawyer.
Blagoyovich was accused of acting for personal gain.
Perry was acting in his official capacity and not seeking personal gain. He merely conveyed to a legislator his intention to use a line item veto to defund the Public Integrity Unit so long as the Unit’s head remained in office. That is a protected political act. It is not a corrupt act.
Another reason why this is the best blog around!!!
Thanks for the great, informative comments!!
I think the prosecution would have a better shot at proving the crime of attempting criminal extortion — threatening the use of the governmental action of veto of funds if the DA did not resign. Even still, pretty weak.
Except that extortion requires that the extorting person seek to obtain something for their own use by illicit means.
Other than as material for a possible future political ad, I can’t see what inures to Perry personally.
But Norman, he didn’t threaten Lehmberg. He told a legislator of his intent to veto the budget if she did not resign. The Senator’s office released the information to the press.
According to this particular prosecutor and grand jury, a person is responsible for more than the things he/she does. Now you’re responsible for leaked secrets as if you put them on a billboard.
I personally hope Perry runs for prez. We will need a fighter POTUS with backbone when the throat cutters come calling.
Sent this to Perry’s lawyer:
Greetings:
In your habeas corpus you are trying to change law. Steep hill to climb when the prosecutor had to circumvent the clear dictate of the Legislature in order to get this bogus indictment. I realize this may sound presumptuous, since I am only a radio talk show host and not a lawyer, but the code in this matter seems very clear. The Governor, like every other citizen had a right to the due course of the laws that was deliberately circumvented for this political assassination.
The legislature very clearly intended that a prosecuting attorney not have the power to seek an indictment in secret. Provision was put in place to prevent a prosecutor from stacking a grand jury by granting any person the right to challenge the grand jury panel prior to empanelment by the inaction of TxCCP 19.27 which reads as follows:
Art. 19.27. ANY PERSON MAY CHALLENGE. Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. In no other way shall objections to the qualifications and legality of the grand jury be heard. Any person confined in jail in the county shall upon his request be brought into court to make such challenge.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
To further prevent secret grand jury indictments, the Legislature enacted a specific prohibition against the seeking of an indictment prior to giving notice that s/he may have need of availing him/herself of the right granted by TxCCP 16.27 supra by the enactment of TxCCP 16.01 which reads as follows:
Art. 16.01. EXAMINING TRIAL. When the accused has been brought before a magistrate for an examining trial that officer shall proceed to examine into the truth of the accusation made, allowing the accused, however, sufficient time to procure counsel. In a proper case, the magistrate may appoint counsel to represent an accused in such examining trial only, to be compensated as otherwise provided in this Code. The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case. If the accused has been transferred for criminal prosecution after a hearing under Section 54.02, Family Code, the accused may be granted an examining trial at the discretion of the court. (emphasis added)
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1987, 70th Leg., ch. 140, Sec. 4, eff. Sept. 1, 1987.
This right was further bolstered by the enactment of TxCCP 20.22 which reads as follows:
Art. 20.22. PRESENTMENT ENTERED OF RECORD. (a) The fact of a presentment of indictment by a grand jury shall be entered in the record of the court, if the defendant is in custody or under bond, noting briefly the style of the criminal action, the file number of the indictment, and the defendant’s name.
(b) If the defendant is not in custody or under bond at the time of the presentment of indictment, the indictment may not be made public and the entry in the record of the court relating to the indictment must be delayed until the capias is served and the defendant is placed in custody or under bond.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1979, 66th Leg., p. 1033, ch. 463, Sec. 2, eff. June 7, 1979; Acts 1999, 76th Leg., ch. 580, Sec. 3, eff. Sept. 1, 1999.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 628 (H.B. 587), Sec. 2, eff.
In 1967, Trussell rendered void all of the above and had the effect of ruling that, if a prosecutor does what s/he is specifically forbidden to do by secretly presenting to a grand jury a person who has not been afforded the right to an examining trial, that said violation denies the accused in rights specifically granted by statute. Without any points or authority, or explanation, the court simply ruled out of hand that a prosecutor can act in violation of TxPC 39.03 which reads as follows:
Sec. 39.03. OFFICIAL OPPRESSION.
(a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(c) In this section, “sexual harassment” means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor, except that an offense is a felony of the third degree if the public servant acted with the intent to impair the accuracy of data reported to the Texas Education Agency through the Public Education Information Management System (PEIMS) described by Section 42.006, Education Code, under a law requiring that reporting. (emphasis added)
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1989, 71st Leg., ch. 1217, Sec. 1, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., ch. 16, Sec. 19.01(34), eff. Aug. 26, 1991. Renumbered from Penal Code Sec. 39.02 by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 510 (S.B. 124), Sec. 2, eff. September 1, 2013.
In the instant case, it had to be clear to the presiding judge that the indictment had been presented to the court in violation of TxCCP Article 20.22, that the prosecutor had impaneled a grand jury wherein the person the prosecutor intended to seek an indictment of was denied the right granted by TxCCP Article 19.27. The violation of Art 20.22 and violation of Art 16.27 were accomplished by violating the specific denial of the right to an examining trial in violation of Art 16.01.
No reasonable person of ordinary prudence can read Article 16.01 and construe it as anything other than a prohibition on the prosecutor from seeking an indictment until the accused has been given notice and opportunity to present exculpatory evidence. This exculpatory evidence would then be available to any subsequently empanelled grand jury under the dictate of TxCCP Article 2.01 which reads as follows:
Art. 2.01. DUTIES OF DISTRICT ATTORNEYS. Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom, except in cases where he has been, before his election, employed adversely. When any criminal proceeding is had before an examining court in his district or before a judge upon habeas corpus, and he is notified of the same, and is at the time within his district, he shall represent the State therein, unless prevented by other official duties. It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.
Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.
Amended by Acts 1981, 67th Leg., p. 801, ch. 291, Sec. 98, eff. Sept. 1, 1981.
Had the Governor been granted the due process of the laws, the evidence you put in your habeas corpus filing would have been available to the grand jury and no indictment would have happened.
If you follow the case law below, it will be clear that everything evolved from Trussell. Trussell, as presidence is worthless. The Governor owes it to all the people who voted for him to fight this travesty and breach of due process. Get this garbage case law thrown out and the rule of law returned.
That’s my story and I’m sticken to it.
Randall Kelton – Rule of Law Radio 90.1 Austin, Texas
PO Box 1
Boyd, TX 76023
940 399 9922
TRUSSELL v. STATENo. 40259.
414 S.W.2d 466 (1967)
Jerry Wayne TRUSSELL, Appellant,
v.
The STATE of Texas, Appellee.
Court of Criminal Appeals of Texas.
April 26, 1967.
Leslie Echols, Paris, for appellant.
Jim N. Thompson, County Atty., Paris, and Leon B. Douglas, State’s Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The offense is robbery with firearms; the punishment, 15 years.
Trial was before a jury on a plea of not guilty.
The State did not seek the death penalty. The jury having found appellant guilty, he elected to have the same jury assess the punishment. Art. 37.07, Sec. 2(b), Vernon’s Ann.C.C.P.
Appellant’s first ground of error is the failure of the trial judge to set aside the indictment because the appellant had been denied a preliminary hearing.
The record reflects that appellant was arrested for the robbery and taken before a magistrate on January 10, 1966, where he was advised of the nature of the charge and of his rights. He asked for an examining trial and that counsel be appointed. Counsel who represented him at his trial, and represents him in this appeal, was appointed.
On January 13, 1966, the indictment was returned without any examining trial having been held.
Appellant cites Art. 16.01 C.C.P. which he would have us construe as depriving the grand jury of authority to return an indictment prior to his being afforded an examining trial.
Art. 16.01 reads in part:
“The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case.”
We see no error.
WHITTINGTON v. STATENo. C14-88-1062-CR.
781 S.W.2d 338 (1989)
It is well established that a defendant loses his right to an examining trial when he is indicted. This principle is fully articulated in Brown v. State, 475 S.W.2d 938 (Tex.Crim.App.1971). “… the return of a true bill by the grand jury satisfies the principal purpose and justification for such a preliminary hearing—that there is probable cause to believe the accused committed the crime charged.” 475 S.W.2d at 946; Bullard v. State, 533 S.W.2d 812, 816 (Tex. Crim.App.1976); McDonald v. State, 513 S.W.2d 44, 46 (Tex.Crim.App.1974); accord Tarpley v. Estelle, 703 F.2d 157, reh’g denied 710 F.2d 837 (5th Cir.) cert. denied 464 U.S. 1002, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983).
BROWN v. STATENo. 43685.
475 S.W.2d 938 (1971
The return of an indictment terminates any right to an examining trial. Article 16.01, V.A.C.C.P.; Harris v. State, Tex. Cr.App., 457 S.W.2d 903, 907, and cases there cited. While, as pointed out in Harris, the examining trial may be a practical tool for discovery by the defendant, the return of a true bill by the grand jury satisfies the principal purpose and justification for such preliminary hearing—that there is probable cause to believe the accused committed the crime charged.
HARRIS v. STATENo. 42896.
457 S.W.2d 903 (1970)
Appellant complains he was denied an examining trial. The record reflects the appellant was brought before Judge Medford for an examining trial on January 17, 1967, and though without counsel at the time, personally waived such examining trial after his rights had been explained to him. The record does not reflect any request subsequent to that time for an examining trial. The return of the indictment on March 2, 1967, terminated any right to an examining trial. Article 16.01, V.A.C.C. P.; Gooden v. State, Tex.Cr.App., 425 S.W.2d 645; Ash v. State, Tex.Cr.App., 420 S.W.2d 703; Murphy v. State, Tex.Cr.App., 424 S.W.2d 231; Bryant v. State, Tex.Cr. App., 423 S.W.2d 320; Trussell v. State, Tex.Cr.App., 414 S.W.2d 466; Ward v. State, Tex.Cr.App., 427 S.W.2d 876; Wallace v. State, Tex.Cr.App., 429 S.W.2d 145; Scallion v. State, Tex.Cr.App., 433 S.W.2d 438; Klechka v. State, Tex.Cr.App., 429 S.W.2d 900, cert. den. 393 U.S. 1044, 89 S.Ct. 672, 21 L.Ed.2d 592; Wilhelm v. State, Tex.Cr.App., 426 S.W.2d 850; 21A Tex.Digest, Indictment and Information, Sec. 9, 10.1(1); Attorney General’s Opinion C-718 (1966).
Though the preliminary hearing provided for in Article 16.01, V.A.C.C.P., may be a practical tool for discovery by the defendant, the primary justification for its existence is to protect the innocent defendant from incarceration on a totally baseless accusation.1 Therefore, before the accused may be held for grand jury action, our statutes require the prosecution to justify his incarceration by proving in an examining trial before a magistrate that there is probable cause to believe the accused committed the offense charged. Article 16.17, V.A.C.C.P. See also Barrett v. United States, 270 F.2d 772, 775 (8th Cir., 1959). If the grand jury returns a true bill prior to the time that an examining trial is held, the principal purpose and justification of such hearing has been satisfied. See Vincent v. United States, 337 F.2d 891 (8th Cir.), cert. den. 380 U.S. 988, 85 S.Ct. 1363, 14 L.Ed.2d 281. Action by a grand jury in returning the indictment supersedes the complaint procedure and eliminates the necessity of an examining trial. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345; State v. Wigglesworth, 18 Ohio St.2d 171, 248 N.E.2d 607.
BRYANT v. STATENo. 40964.
423 S.W.2d 320 (1968)
The third motion was for an examining trial.
Appellant having been indicted August 22, 1966, his motion for an examining trial presented March 8, 1967, came too late. Trussell v. State, Tex.Cr.App., 414 S.W.2d 466; Ash v. State, Tex.Cr.App., 420 S.W.2d 703.
ASH v. STATENo. 40734.
420 S.W.2d 703 (1967)
Appellant contends that the trial court erred in overruling his motion to quash the indictment because appellant was not granted an examining trial when such was requested in accordance with Article 16.01, Vernon’s Ann.C.C.P. The record reflects that appellant was arrested on the night of May 1, 1966, and an indictment was returned on May 3, 1966. Article 16.01 provides:
“The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case.”
Trussell v. State, Tex.Cr.App., 414 S.W.2d 466, is authority for overruling of appellant’s motion to quash the indictment.
MURPHY v. STATENo. 40927.
424 S.W.2d 231 (1968)
Appellant’s second ground of error is that he was not furnished an examining trial prior to the return of the indictment in accordance with Article 16.01, Vernon’s Ann.C.C.P. Ash v. State, Tex.Cr.App., 420 S.W.2d 703, and Trussell v. State, Tex.Cr. App., 414 S.W.2d 466, are authority for the rule that the failure to grant an examining trial prior to the return of an indictment
WARD v. STATENo. 40856.
427 S.W.2d 876 (1968)
Art. 16.01 V.A.C.C.P. provides in part that “the accused in any felony case shall have the right to an examining trial before indictment * * *.”
The request for an examining trial after indictment came too late. See Trussell v. State, Tex.Cr.App. 414 S.W.2d 466. See also Collins v. Beto, D.C., 245 F.Supp. 639.
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