Someone is detained in jail over 90 days, but was indicted during the 90 days. Is an indictment a total bar from using the rule, or does it just make it harder to win writ of habeas corpus hearing? Thank you!
Wills and Living Wills Lawyer
Commonly either a writ or a motion for release due to delay is filed when the State has failed to obtain an indictment on a felony offense within 90 days of the defendant's arrest for said offense. However, the Texas Code of Criminal Procedure section17.151 does not specifically mention the word "indictment". The basis of an indictment is inferred because you cannot be tried for a felony offense in Texas without an indictment....therefore if an indictment has not been obtained within 90 days, the State cannot announce "ready" for trial. "Where there is no indictment, the State cannot announce ready for trial." Pate v. State, 592 S.W.2d 620 (Tex. Crim. App. 1980). Also, See below:
Art. 17.151. RELEASE BECAUSE OF DELAY. Sec. 1. A defendant who is detained in jail pending trial of an accusation against him 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:
(1) 90 days from the commencement of his detention if he is accused of a felony......
However, there are some exceptions to this rule and it is never cut and dry. A motion for speedy trial may be the next step. Your "someone" needs to discuss the issue with their attorney, if they do not have one they need to hire one or petition the court to appoint him or her one.
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DUI / DWI Attorney
Your question suggests that this person was indicted before the 90 days. If so, the 90 day rule is immaterial. Person was charged. Person was incarcerated pending trial. Person was indicted within 90 days. If this person hires an attorney, that attorney may decide to file a writ/motion to set reasonable bail. Depends entirely on the circumstances of the case, including this person's resources, ties to the community, criminal history, nature of the offense, actual bail amount currently set, so on and so forth.
Criminal Defense Attorney
Mr. Henson has given an excellent comprehensive answer.
Put more simply, if there is an indictment it will be difficult to show the prosecutor is not ready.
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