In Texas, authorities must bring someone who has been arrested to court to see a magistrate “without unnecessary delay,” but in no event later than 48 hours after arrest. (This court appearance may actually occur either in person or through electronic broadcast.)
Initial Appearance Requirements
At the initial court appearance, the magistrate must inform the arrestee of the allegations (and any affidavit filed with them), and the right to:
- hire a lawyer
- remain silent
- have an attorney present during any law enforcement interview
- terminate any such interview at any time, and
- an examining trial (if a felony offense is at issue; an examining trial is equivalent to what another jurisdiction might call a preliminary hearing).
The magistrate must also inform the arrestee of the right to court-appointed counsel if he or she can’t afford to pay for an attorney, and of the procedure for requesting appointed counsel. In addition, the magistrate must ensure that the suspect receives reasonable help in filling out the paperwork required for appointment of counsel. Magistrates with the authority to do so can appoint a lawyer; others must ensure that the paperwork for appointment is properly submitted to another magistrate “without unnecessary delay,” but no later than 24 hours after the request for appointment.
The magistrate must also:
- inform the suspect that he or she need not make any statement and that any statement may be used in court
- allow the suspect “reasonable time and opportunity to consult counsel,” and
- release the suspect on bail if bail is appropriate. (Tex. Crim. Proc. Code art. 15.17(a).)
If the person arrested is accused of only a misdemeanor carrying a fine and not imprisonment, the magistrate may release him or her on “OR.” (Tex. Crim. Proc. Code art. 15.17(b).)
Probable Cause Determination
Importantly, in-custody suspects who have been arrested without a warrant are entitled to a determination of whether there is probable cause to believe they committed the alleged offenses. Generally the probable cause determination must occur within 48 hours of a felony arrest, while for misdemeanors, the timeframe is 24 hours. Many courts combine the probable cause determination with the initial appearance in order to satisfy the time requirement. Without an authorized postponement, the suspect must be released on minimal bail if the determination doesn’t occur within the applicable window.
The government can apply to postpone the suspect’s release, and if the magistrate grants the postponement, hold the suspect for up to 72 hours after arrest. Magistrates have considerable discretion in deciding whether the government’s reason why a probable cause determination hasn’t yet occurred is sufficient.
It’s possible—at least theoretically—for the authorities to get a suspect to court within 48 hours but nevertheless violate the right to a speedy court appearance. “Unnecessary delay”—even within 48 hours—is a violation. Relevant factors for courts to consider in determining whether delay is unnecessary include:
- the availability of a magistrate and other logistical issues
- administrative tasks
- intervening Sundays or holidays, and
- the time required for interrogation and investigation.
Consequences of Violation
Unfortunately for defendants, there often isn’t a remedy for someone whom the authorities have held too long before bringing to court. For example, in one case, an appellate court explained that the officers’ delay in getting the defendant to a magistrate was irrelevant because the defendant couldn’t establish that his confession resulted from the delay. (Weaver v. State, 265 S.W.3d 523 (Tex. App. 2008).)
If you’ve been arrested, whether you’ve had your first court appearance or not, seek the help of an experienced attorney. Only a knowledgeable attorney will be able to advise you of the applicable law and protect your rights.