Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Texas Prisoner Not Entitled to Counsel until Adversarial Proceedings Are Commenced

Walter Rothgery, a Texas state prisoner, was arrested as a felon in possession of a firearm based on a background check which showed a felony conviction in California. He was taken before a magistrate the next morning, who filed an affidavit stating that there was probable cause to believe Rothgery was a felon in possession of a firearm. The magistrate allowed Rothgery to bail out of jail but didn't appoint him counsel. Several months later a grand jury indicted Rothgery. He was appointed counsel who promptly obtained documentation proving that the California charges didn't produce a conviction, and the Texas charges were dismissed. Rothgery then filed a civil action in federal district court claiming that his 6th and 14th Amendment right to counsel were violated. The district court dismissed, and Rothgery appealed.

On appeal, the U.S. Court of Appeals for the 5th Circuit found that the right to counsel under the 6th and 14th Amendments to the U.S. Constitution does not come into play until adversary judicial proceedings are commenced. Since that didn't occur until the grand jury indicted Rothgery, the 5th Circuit upheld the district court and dismissed the appeal. See: Rothgery v. Gillespie County, Texas, 5th Circuit No. 06-50267 (2007).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login