Please just answer question re Art.18.01 (b)

[weplumcrazy]

What is the name of your state?
Texas

If Art. 18.01 (b) of the Texas Code of Criminal Procedure states "The affidavit is public information if executed, and the magistrate's clerk shall make a copy of the affidavit available for public inspection in the clerk's office during normal business hours"

then if the magistrate's clerk does not have a copy and did not make it available for public inspection during normal business hours have my rights been violated and the law been broken?

 

[justalayman]

How would your rights have been violated?

Addtionally it sounds as if the clerk is the one who would recieve any punishement for this, if any is applicable. It still won;t change the fact of whatever crime you may have committed.

 

[CdwJava]

One should never read a single, isolated phrase out of a big book of codes because there is almost always another section somewhere that makes an exception to this.

But, nothing prevents you from hiring an attorney to push the matter ... but since your criminal attorney should be able to get this as a matter of course in Discovery (as previously mentioned in the prior thread) you should not have to go that far.

- Carl

 

[CdwJava]

Further, the section you cited lists two notable points: (1) that the warrant has to have been executed for the affidavit to be made available, and, (2) that it has to be made available for "inspection" AT the clerk's office. in other words, it would seem that they do not have to provide you a copy only make it available for inspection.

There is not likely any specific punishment for not turning this record over, but should you have to sue to get the record and the court rules in your favor they might have to pay your costs.

Maybe if you go down there and ask to see it at the office. And if she does not have a copy in her files yet, then obviously she can't make a copy available. And I will guess there are also procedures under which an affidavit can be sealed for a time ... likely to protect witnesses in an ongoing investigation.

Speak to an attorney before you start accusing people at the clerk's office of breaking the law ... that will be a good way of getting them to shut down.

- Carl

 

[weplumcrazy]

Thank you for your response. Guys, I don't want to get the clerk in trouble. That is not my point. She's actually a nice lady. I just want them to abide by what their code says as I am expected to do. My case is a little complex and as I said my attorney has not for whatever reason obtained the documents we requested. The problem today is it is less than a week until court date, I can't fire this attorney and hire another without going before the judge.

I have reason to believe there is a problem with the affidavit which would make the search and seizure illegal. The point I was trying to make is that we are expected to do exactly as the penal code states, we have to have our paperwork in order, so I feel the State should abide by its guidelines that are stated in their codes. Instead even though their code states I have every right to view this public information after it was executed, I am denied that opportunity. I don't feel there has been a crime committed. I operate a business in which the County gave me a business license to operate, all of the machines require stamps that are issued by the State and the County that are quite expensive. The State Comptroller comes around and inspects our equipment We set our business up according to the guidelines in the penal code for amusement games. My clientele are primarily middle age to reitired people who come and socialize, drink coffee and eat sandwiches and have a good time One sherriff has no problems with our arcade games as long we abide by the guidelines, then the next year the new sherriff comes in and after they have collected a small fortune for our business licenses, vending licenses, and our state and county stamps, they come in and scare a bunch of little old ladies to death waving guns around and take the equipment they have just given us business licenses and stamps to operate with. All I want is a fair and equal chance to prove my case.

 

[justalayman]

What does the search warrant have to do with this??

If they obtained evidence by way of the warrant and it is not actually incriminating evidence, then it would make no difference how the obtained the evidence.


When you started this, you seemed to infer that evidence may have been improperly gained. Now you state that there is actually no evidence obtained that actually proves any illegal actions.

If this is the case, then it should all come out in the wash. I think you are barking up the wrong tree, that is unless you actually are guilty of something and want to supress that evidence.

 

[CdwJava]

As I said, without an attorney you aren't going to force them to turn over the affidavit if they feel they do not have to. And chances are there are legal reasons they do not have to in some instances ... whether this falls into an exception or not, I couldn't say.

- Carl

 

[weplumcrazy]

Well, it just depends on what side of the fence you are on. The State of Texas cannot make up its mind if the machines are legal or illegal. They fall under the amusement device category and for every case where they have determined they were operating illegally and the machines were forfeited to the county, there has been another case where the machines have been returned to the owner and the case dismissed. It's all about money. What's amazing is that in many cases where the machines have been forfeited, at the close of the case they will turn around and sell the machines back to the owner.

That would almost be like arresting a drug dealer, seizing his drugs, convicting him, and then turning around and selling him drugs back wouldn't it?