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Click here for the full text of this decision FACTS:On July 15, 2002, Fredericksburg police arrested Walter Rothgery without a warrant on suspicion of being a felon in possession of a firearm, a third-degree felony in Texas. The officers based their suspicion 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. 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 a defense attorney at this point, though there is no record of the request. On July 16, 2002, a magistrate informed Rothgery of the accusation against him and gave him statutory warnings under Texas Code of Criminal Procedure Art. 15.17, which provides for warnings generally equivalent to those required under the U.S. Supreme Court’s 1966 decision in Miranda v. Arizona. 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.” 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. Rothgery says that he repeatedly requested counsel in the months following his release but no counsel was appointed. On Jan. 17, 2003, six months after his arrest, a grand jury returned an indictment against Rothgery, and authorities rearrested him the next day. Rothgery appeared before the magistrate again on Jan. 19, 2003, and again requested counsel, but no attorney was appointed. On Jan. 23, 2003, 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 Jan. 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. The trial court granted the motion on April 30, 2003. On July 15, 2004, Rothgery sued Gillespie County under 42 U.S.C. �1983, alleging that the county violated his Sixth and 14th 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 was 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 14th Amendment right to counsel did not attach until his indictment on Jan. 17, 2003, which marked the initiation of adversary judicial proceedings against him. The district court granted the motion on Feb. 2, 2006, and issued a take-nothing final judgment. Rothgery appealed. HOLDING:Affirmed. The Sixth Amendment, which is applicable to the states through the 14th Amendment, 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.” This right, the court stated, “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.” The relevant time is when “the government has committed itself to prosecute.” The court noted its previous holding that a warrantless arrestee’s lineup and appearance before a magistrate for Art. 15.17 warnings did not initiate adversary judicial proceedings, as prosecutors were unaware of and uninvolved in either event. It is undisputed in Rothgery’s appeal, the court stated, that prosecutors were not aware of or involved in Rothgery’s arrest or appearance before the magistrate on July 16, 2002. There was 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. Rothgery contended that the affidavit, which related the events underlying the arrest and stated that the officer “charge[d]” that Rothgery committed the offense of being a felon in possession of a firearm, constituted a “ complaint” or an otherwise formal charge that initiated adversarial proceedings. The court acknowledged that while only an indictment or information can formally charge a felony under Texas law, complaints play a role in felony cases as well. A complaint under Texas Code of Criminal Procedure Art. 15.04 may serve both as a basis for a probable cause finding for an arrest warrant and “as a basis for the issuance of an information or the commencement of the indictment process.” But the court found that in Rothgery’s case, the complaint did not initiate the prosecutorial process. The affidavit itself indicated that it was filed for the sole purpose of establishing probable cause, as it was titled Affidavit of Probable Cause. Most significantly, the summary judgment evidence reflected no prosecutorial knowledge of or involvement in the arrest and magistrate appearance. Indeed, the court noted that it took prosecutors roughly six months after the arrest to seek an indictment against Rothgery. Thus, the court concluded that the filing of the affidavit was part of the investigatory process, serving solely to validate the arrest without committing the state to prosecute. OPINION:King, J.; King, Wiener and Owen, JJ.

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