Jason Bennyhoff
Zachary Robichaux
An examination of the timelines with which the State must comply to avoid mandatory release of a defendant in custody because the State was not ready for trial
You’ve just been given your first really ugly case to present to the grand jury for an indictment. There are hundreds of exhibits to organize, dozens of witnesses to talk to, and endless forensic tests that need to be run for DNA, fingerprints, and the like, which will take who knows how long. Luckily, you have plenty of time to get all of that ready, right?
If the defendant is in jail and you want him to stay there pending trial, the answer is a resounding “nope.” Texas has a statute governing how long the State has to be ready for trial before the defendant must be released from custody on his own recognizance or given a bond low enough for him to secure release on bond. That statute and how it operates in practice is the topic of this article.
What’s the rule?
The Code of Criminal Procedure mandates that a defendant who is in jail pending trial must be released either on personal bond or by reducing the amount of bail required if the State is not ready for trial of the criminal action for which he is being detained within:
• 90 days from the commencement of his detention if he is accused of a felony;
• 30 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment in jail for more than 180 days;
• 15 days from the commencement of his detention if he is accused of a misdemeanor punishable by a sentence of imprisonment for 180 days or less; or
• five days from the commencement of his detention if he is accused of a misdemeanor punishable by a fine only.
However, those rules do not apply to a defendant who is:
• currently serving a sentence of imprisonment for another offense;
• being detained pending trial of another accusation for which the applicable period has not yet elapsed;
• incompetent to stand trial, during the period of the defendant’s incompetence; or
• being detained for a violation of the conditions of a previous release related to the safety of a victim of the alleged offense or to the safety of the community.
What exactly does “ready for trial” mean?
The prosecutor’s knee-jerk reaction to this statute may well be to say, “That can’t really mean I have to be ready to go to trial on my case within those deadlines, does it?” The short answer is, yes.
The State does not have to formally, and without prompting, announce that it is ready for trial within the timelines in Article 17.151. However, once a defendant raises the issue of the State’s readiness for trial under Article 17.151 (usually by way of pre-trial writ of habeas corpus), the State must then make a prima facie showing that it is ready for trial. In this vein, the Court of Criminal Appeals has held that “all a prosecutor has to do to prevent release of an accused who has been unable to make bail is to announce ready in a timely fashion, even if trial is thereafter delayed for other reasons.” Remember that the State’s announcement of ready for trial must be that the State was ready for trial within the timeline in Article 17.151—announcing ready at some hearing on a later date will do no good.
While the State’s announcement of “ready for trial,” is sufficient to make a prima facie showing that the State is ready for trial, the defense can then rebut that prima facie showing, including by questioning the prosecutors at a hearing. The courts have examined the State’s readiness for trial in somewhat painstaking detail and have come to sometimes obvious and sometimes counterintuitive conclusions as to whether the State was actually ready for trial. Most importantly, these decisions have gone into deep consideration of the underlying facts the State would have to prove and the witnesses the State would need to present in considering whether the State would have been ready for trial within the timeline.
For example, the State’s announcement of ready for trial will not be sufficient where there is no indictment. However, the Fort Worth Court of Appeals held that the State “may be prepared for trial even though the indictment that forms the basis for the prosecution of the offense is so defective as to be void.” In Jones, the Court of Criminal Appeals held that the State was not ready for trial within the timeline because a necessary witness was not “present or readily available to testify at any time during the 90 days following [the] appellant’s arrest.” By contrast, the absence of certain items of evidence was found insufficient to rebut the State’s announcement of ready for trial where the prosecutor stated that the State was prepared to go forward without that evidence.
What if I can’t be ready, but it’s not my fault?
Too bad. The statute includes no provision for extending the timelines due to a delay that is beyond the prosecutor’s control. But there is still some hope. If the defendant is in jail on multiple counts and any one of the other counts (felony or misdemeanor) has not yet reached its time limit under the statute, then a court may deny habeas relief to the defendant.
When does the clock start?
The statute mandates that the clock begins to run from the date of the “commencement of detention.” However, what constitutes the commencement of detention is open to some interpretation. For example, the Fort Worth Court of Appeals has held that detention did not start until the defendant was arrested in another county at the request of the county where the crime occurred. The Waco Court of Appeals has held that the defendant’s detention did not begin until the defendant was in the custody of the county in which he would face prosecution.
What about the safety of the community?
The Court of Criminal Appeals has held that Article 17.151 does not allow a trial judge to consider victim or community safety in determining whether to release a defendant due to the State’s inability to be ready for trial. However, the Court of Criminal Appeals did note that:
[n]othing in the mandatory language of Article 17.151 precludes a judge from imposing a broad range of reasonable (and even creative) conditions of release designed to ensure victim and community safety like non-contact orders, house arrest, electronic monitoring, or daily reporting. Article 17.40 acknowledges that a judge need not turn a blind eye to potential safety concerns.
Conclusion
In short, the prosecutor must be ready for trial rapidly should he desire to keep a defendant who cannot make bond in jail pending trial. However, where this is not possible, as the Court of Criminal Appeals has pointed out, there are many potential bond conditions that can be placed on a defendant when he is released to help ensure the safety of the victim or the community. Please feel free to contact us if we can be of any assistance.
Endnotes
1 Tex. Code Crim. Proc. Art. 17.151 §1.
2 Tex. Code Crim. Proc. Art. 17.151 §2.
3 See Jones v. State, 803 S.W.2d 712, 717 (Tex. Crim. App. 1991).
4 Id; Ex parte Ragston, 422 S.W.3d 904, 906 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
5 Id. at 716.
6 See id at 717. (State made prima facie showing it was ready within the 90-day time limit when the prosecutor said the State “has been ready” for trial).
7 Applewhite v. State, 872 S.W.2d 32, 34 (Tex. App.—Houston [1st Dist.] 1994, no pet.).
8 Ex parte Smith, 486 S.W.3d 62, 66 (Tex. App.—Texarkana 2016, no pet.).
9 Ex parte Brosky, 863 S.W.2d 775, 778 (Tex. App.—Fort Worth 1993, no writ), citing Behrend v. State, 729 S.W.2d 717, 720 (Tex. Crim. App. 1987).
10 Jones, 803 S.W.2d at 719.
11 Ex parte Watson, 940 S.W.2d 733, 736 (Tex. App.—Texarkana 1997, no writ); Ex parte Sherrill, No. 12-10-00183-CR, 2011 WL 2638530 (Tex. App.—Tyler Jun. 30, 2011, no pet.) (not designated for publication).
12 See Tex. Code Crim. Proc. Art. 17.151; Rowe v. State, 853 S.W.2d 581, 582 (Tex. Crim. App. 1993).
13 Ex parte Jagneaux, 315 S.W.3d 155, 157 (Tex. App.—Beaumont 2010, no pet.).
14 Tex. Code Crim. Proc. Art. 17.151.
15 Balawajder v. State, 759 S.W.2d 504, 506 (Tex. App.—Fort Worth 1988, pet. ref’d).
16 Ex parte Smith, 10-13-00243-CR, 2014 WL 702812, at *1 (Tex. App.—Waco Feb. 20, 2014, no pet.) (not designated for publication).
17 Ex parte Gill, 413 S.W.3d 425, 431 (Tex. Crim. App. 2013).
18 Id.