I bet this is already answered somewhere, I just couldn't find it.
The dad killing the child molester brought up the question, but is it really the law that every homicide in texas has to go to the grand jury?
I know the DA probably wants to clear the dad in this case with a no-bill, but does he really have to present it to the grand jury?
Homicide requiers a grand jury?
Moderators: carlson1, Charles L. Cotton
Re: Homicide requiers a grand jury?
I am not a lawyer, but as I understand it, the local police must look at any infraction and determine the charge if any. Traffic tickets are easy but as the violation escalates, it eventually gets beyond their pay grade, so it is deferred to a grand jury to decide if charges are to be pursued. It gets it off the shoulders of the police department, avoiding any appearance of conflict, and places the decision on a jury of citizens to evaluate the evidence.
Re: Homicide requiers a grand jury?
To the OP-Yes.
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srothstein
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Re: Homicide requiers a grand jury?
Not in Texas that I know of. The closest requirement to this is that a magistrate must be notified of all crimes. Duties of police officers is in Article 2.13 of the Code of Criminal Procedure. And remember that the mayor and city secretary are magistrates that meet this requirement.
Art. 2.13. DUTIES AND POWERS.
(a) It is the duty of every peace officer to preserve the peace within the officer's jurisdiction. To effect this purpose, the officer shall use all lawful means.
(b) The officer shall:
(1) in every case authorized by the provisions of this Code, interfere without warrant to prevent or suppress crime;
(2) execute all lawful process issued to the officer by any magistrate or court;
(3) give notice to some magistrate of all offenses committed within the officer's jurisdiction, where the officer has good reason to believe there has been a violation of the penal law; and
(4) arrest offenders without warrant in every case where the officer is authorized by law, in order that they may be taken before the proper magistrate or court and be tried.
(c) It is the duty of every officer to take possession of a child under Article 63.009(g).
Steve Rothstein
Re: Homicide requiers a grand jury?
...read this under "What does a grand jury do?" http://www.co.galveston.tx.us/distatty/answers.htm" onclick="window.open(this.href);return false;
...and the first paragraph here: http://www.tshaonline.org/handbook/onli ... cles/jlg01" onclick="window.open(this.href);return false;
...recent caselaw showing it's still in effect: http://www.2ndcoa.courts.state.tx.us/op ... onId=20953" onclick="window.open(this.href);return false;
...I haven't found if the homicide can be ruled justified by the police, the Prosecuting Attorney, or if it has to be ruled justified by a "No bill" decision of a Grand Jury....but it has to be ruled justified before civil liability is removed: http://codes.lp.findlaw.com/txstatutes/CP/4/83/83.001" onclick="window.open(this.href);return false;
...and the first paragraph here: http://www.tshaonline.org/handbook/onli ... cles/jlg01" onclick="window.open(this.href);return false;
...recent caselaw showing it's still in effect: http://www.2ndcoa.courts.state.tx.us/op ... onId=20953" onclick="window.open(this.href);return false;
...I haven't found if the homicide can be ruled justified by the police, the Prosecuting Attorney, or if it has to be ruled justified by a "No bill" decision of a Grand Jury....but it has to be ruled justified before civil liability is removed: http://codes.lp.findlaw.com/txstatutes/CP/4/83/83.001" onclick="window.open(this.href);return false;
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srothstein
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Re: Homicide requiers a grand jury?
Speedsix, I agree with everything you just posted EXCEPT the bit about the homicide being ruled justified before liability is removed. But, while a grand jury must indict (unless waived), there is no requirement for a homicide to be reported to the grand jury, which is what I was discussing. You sort of recognize this in your last paragraph when you acknowledge that you can't find if a police officer, DA, JP, or a grand jury is required to rule it justified.
So, let's think about the case where the shooting of a robber is so clearly a good shoot that there is no doubt in anyone's mind. The officer investigating sees no crime in what happened. He sees no reason to notify the DA at all since there is no crime. There is no law I am aware of requiring it even though most agencies will have policies requiring it.
Probably an even better example is not a shooting, but a fatality car accident. These are technically homicides and almost always can be charged under the criminally negligent homicide law, but rarely are if there is no alcohol involved.
On a separate topic, the part I disagreed with is if the pronouncement of justification makes a difference to a civil case. Legally, it does not make a difference to the civil liability. The lawsuit could still be filed and the judge could disagree on the justification part. A no bill by a grand jury would weight very heavily on the judge's mind and decision but it is not truly legally binding.
So, let's think about the case where the shooting of a robber is so clearly a good shoot that there is no doubt in anyone's mind. The officer investigating sees no crime in what happened. He sees no reason to notify the DA at all since there is no crime. There is no law I am aware of requiring it even though most agencies will have policies requiring it.
Probably an even better example is not a shooting, but a fatality car accident. These are technically homicides and almost always can be charged under the criminally negligent homicide law, but rarely are if there is no alcohol involved.
On a separate topic, the part I disagreed with is if the pronouncement of justification makes a difference to a civil case. Legally, it does not make a difference to the civil liability. The lawsuit could still be filed and the judge could disagree on the justification part. A no bill by a grand jury would weight very heavily on the judge's mind and decision but it is not truly legally binding.
Steve Rothstein
Re: Homicide requiers a grand jury?
...my point was that the civil liability is removed if the homicide is ruled justified...the wording is:
TEX CP. CODE ANN. § 83.001
"A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable."
...you're saying that even though only a Grand Jury can return an indictment on a felony, a police officer or Prosecutor has the authority to rule the homicide justifiable to afford the shooter the immunity under the above law...is that right? I couldn't find that anywhere in law...without a "no bill" verdict, how would the shooter prove that the killing had been judged justified? without a "no bill" verdict, could the Prosecutor later decide to ask for an indictment at any time?
...you're also saying that a judge can ignore the fact that the homicide was judged justified(by whoever) under the above law...and remove that immunity??? does the above law then have no power???
...and one more question, please... this in the PC: "Sec. 9.06. CIVIL REMEDIES UNAFFECTED. The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit." It was last amended in 1994...it conflicts with 83.001 above...is it rendered null by the newer law or does it remain in conflict?
TEX CP. CODE ANN. § 83.001
"A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable."
...you're saying that even though only a Grand Jury can return an indictment on a felony, a police officer or Prosecutor has the authority to rule the homicide justifiable to afford the shooter the immunity under the above law...is that right? I couldn't find that anywhere in law...without a "no bill" verdict, how would the shooter prove that the killing had been judged justified? without a "no bill" verdict, could the Prosecutor later decide to ask for an indictment at any time?
...you're also saying that a judge can ignore the fact that the homicide was judged justified(by whoever) under the above law...and remove that immunity??? does the above law then have no power???
...and one more question, please... this in the PC: "Sec. 9.06. CIVIL REMEDIES UNAFFECTED. The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit." It was last amended in 1994...it conflicts with 83.001 above...is it rendered null by the newer law or does it remain in conflict?
Re: Homicide requiers a grand jury?
...finally found ONE trustworthy source that says that a Prosecuting Attorney can decide that a shooting is justified and decide not to take it to GJ...and the way he says it seems also to say that that's one of the things that'll engage 83.001...so that also proves that ALL homicides caused by shooting don't have to go to the GJ...(last sentence)...the original question here...
"Re: Civil immunity question
by Charles L. Cotton » Mon Dec 05, 2011 11:44 pm
I should have answered more thoroughly, but I was trying to talk on the phone and type.
The civil immunity in SB378 is unique in that it refers to "justification" in a criminal setting. For that reason, the outcome in the criminal system is stronger evidence than it would be in another setting. For example, O.J. was acquitted of murder, but lost the civil case because the standard of proof in civil court is easier to meet.
That said, I'd like to see the immunity provision clarified with something like "as evidenced by a no-bill from a grand jury, refusal to prosecute by the appropriate prosecuting attorney, or an acquittal at trial." "
"Re: Civil immunity question
by Charles L. Cotton » Mon Dec 05, 2011 11:44 pm
I should have answered more thoroughly, but I was trying to talk on the phone and type.
The civil immunity in SB378 is unique in that it refers to "justification" in a criminal setting. For that reason, the outcome in the criminal system is stronger evidence than it would be in another setting. For example, O.J. was acquitted of murder, but lost the civil case because the standard of proof in civil court is easier to meet.
That said, I'd like to see the immunity provision clarified with something like "as evidenced by a no-bill from a grand jury, refusal to prosecute by the appropriate prosecuting attorney, or an acquittal at trial." "
Re: Homicide requiers a grand jury?
...this one's confoosin', all right...needs some legislative cleanup...
Re: Homicide requiers a grand jury?
Probably cuz lawyers write the laws.george wrote:Don't they make any easy laws??
Maybe this is a rhetorical question, but it's actually very difficult to write a law. At first, it may seem a simple task, but then you start examining "what ifs" and anticipating and defining exceptions to the law, and making sure they don't contradict previous laws. Most bills have opposition so there are also many compromises that are included before it will be passed into law. There are a lot of other things that I can't think of right now that makes it difficult to pass an "easy law" that has the exact effect of it's intended purpose.
NRA Endowment Member
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Heartland Patriot
Re: Homicide requiers a grand jury?
I was just talking about this with my teenage son the other day. Do you think they mostly aren't charged because of the difficulty determining the level of negligence; that is, whether it was simple vs gross? I know its a bit OT, but since it was there in your posting...srothstein wrote:Speedsix, I agree with everything you just posted EXCEPT the bit about the homicide being ruled justified before liability is removed. But, while a grand jury must indict (unless waived), there is no requirement for a homicide to be reported to the grand jury, which is what I was discussing. You sort of recognize this in your last paragraph when you acknowledge that you can't find if a police officer, DA, JP, or a grand jury is required to rule it justified.
So, let's think about the case where the shooting of a robber is so clearly a good shoot that there is no doubt in anyone's mind. The officer investigating sees no crime in what happened. He sees no reason to notify the DA at all since there is no crime. There is no law I am aware of requiring it even though most agencies will have policies requiring it.
Probably an even better example is not a shooting, but a fatality car accident. These are technically homicides and almost always can be charged under the criminally negligent homicide law, but rarely are if there is no alcohol involved.
On a separate topic, the part I disagreed with is if the pronouncement of justification makes a difference to a civil case. Legally, it does not make a difference to the civil liability. The lawsuit could still be filed and the judge could disagree on the justification part. A no bill by a grand jury would weight very heavily on the judge's mind and decision but it is not truly legally binding.
Re: Homicide requiers a grand jury?
So it sounds like it doesn't have to be but its good for a righteous shooter to get the no-bill.
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srothstein
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Re: Homicide requiers a grand jury?
I think they used to not be charged because we were generally more accepting of the idea of accidents happen. Now we are seeing more charged when it is gross negligence, but it has to be pretty bad to make it chargeable. It started with DWI becoming intoxicated manslaughter and is moving more now, especially with speeding and street racing.Heartland Patriot wrote:I was just talking about this with my teenage son the other day. Do you think they mostly aren't charged because of the difficulty determining the level of negligence; that is, whether it was simple vs gross? I know its a bit OT, but since it was there in your posting...srothstein wrote:Probably an even better example is not a shooting, but a fatality car accident. These are technically homicides and almost always can be charged under the criminally negligent homicide law, but rarely are if there is no alcohol involved.
We are becoming less tolerant of accidents as a society, so I expect to see more and more charges in the future as this happens. The current law does say "a gross deviation from the standard of care" but I expect this to become tighter in the future.
I am not decided how much of this is a good thing and how much is a symptom of other problems in oru society with responsibility for one's actions.
Steve Rothstein