                                                                    United States Court of Appeals
                        REVISED August 2, 2007                               Fifth Circuit
                                                                          F I L E D
        IN THE UNITED STATES COURT OF APPEALS 29, 2007
                                            June
                 FOR THE FIFTH CIRCUIT
                                                                      Charles R. Fulbruge III
                                                                              Clerk


                                  No. 06-50267


WALTER ALLEN ROTHGERY

                                            Plaintiff - Appellant
v.

GILLESPIE COUNTY TEXAS

                                            Defendant - Appellee



                 Appeal from the United States District Court
                   for the Western District of Texas, Austin


Before KING, WIENER, and OWEN, Circuit Judges.
KING, Circuit Judge:
      In McGee v. Estelle, we held that a warrantless arrestee’s Sixth and
Fourteenth Amendment right to counsel does not attach in Texas when he
appears before a magistrate for statutory warnings if prosecutors are unaware
of and uninvolved in the arrest and appearance. 625 F.2d 1206, 1208-09 (5th
Cir. 1980). The district court in this case reached a similar conclusion where the
warrantless arrestee’s appearance involved not only statutory warnings, but also
a probable cause determination by the magistrate that was supported by a police
officer’s affidavit accusing the arrestee of committing the relevant offense.
Because we agree that the appearance in this case did not commence adversary
                                       No. 06-50267

judicial proceedings for purposes of the Sixth and Fourteenth Amendment right
to counsel, we AFFIRM the district court’s order granting summary judgment
for Gillespie County.
              I. FACTUAL AND PROCEDURAL BACKGROUND
       On July 15, 2002, officers of the Fredericksburg, Texas Police Department
arrested plaintiff-appellant Walter Rothgery without a warrant on suspicion of
being a felon in possession of a firearm, which is a third-degree felony in Texas.
The suspicion was based 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, and both sides agree that Rothgery did not have a felony
conviction.
       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 counsel at this point, though there is no
record of the request. The next morning, on July 16, Rothgery was brought
before a Justice of the Peace (the “magistrate”) to be informed of the accusation
against him and to be given statutory warnings under Article 15.17 of the Texas
Code of Criminal Procedure, which provides for warnings generally equivalent
to those required by Miranda v. Arizona, 384 U.S. 436 (1966).1 Rothgery signed
a document reflecting that the magistrate did so and that Rothgery stood

       1
          Article 14.06 of the Texas Code of Criminal Procedure requires that a person arrested
without a warrant be taken before a magistrate within 48 hours of arrest, at which point the
magistrate must “immediately perform the duties described in Article 15.17.” TEX.CODE CRIM.
PROC. ANN. art. 14.06. Article 15.17, which also applies to those who are arrested under
warrant, requires that the magistrate inform the arrestee of the accusation against him, of any
affidavit filed against him, and of his rights to retain counsel, to have counsel appointed for
him if he cannot afford counsel, to remain silent, to have an attorney present during interviews
with officers of the state, to terminate interviews at any time, and to have an examining trial
to probe the existence of probable cause. Id. art. 15.17. The magistrate may also “admit the
person arrested to bail if allowed by law.” Id.


                                               2
                                      No. 06-50267

“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.”2 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. The bond agreement between Rothgery and the bonding company
states, among other details of Rothgery’s arrest, that “Rothgery stands charged
by complaint duly filed in the Justice of Peace Court.”
       Rothgery says that he repeatedly requested counsel in the months
following his release, but no counsel was appointed. On January 17, 2003, six
months after his arrest, a grand jury returned an indictment against Rothgery
and he was rearrested the next day.               Rothgery was brought before the
magistrate again on January 19 and he again requested counsel, but no attorney
was appointed. On January 23, still with no attorney, Rothgery was transferred


       2
         According to Rothgery, the magistrate told him that he would have to waive his right
to an attorney for purposes of the appearance if he wanted to have bail set at that time, and
that otherwise he would have to wait in jail until an appointment was made. On the original
typed document, only the words “waive right to counsel” were underlined, and Rothgery says
that the words “at this time” were also underlined by hand to reflect this limited waiver.

                                             3
                                      No. 06-50267

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 January 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, and the motion was granted on April 30, 2003.
       On July 15, 2004, Rothgery sued defendant-appellee Gillespie County
under 42 U.S.C. § 1983, alleging that the county violated his Sixth and
Fourteenth 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 is 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 Fourteenth Amendment right to counsel did
not attach until his indictment on January 17, 2003, which marked the initiation
of adversary judicial proceedings against him. The district court granted the
motion on February 2, 2006, and issued a take-nothing final judgment. Rothgery
appeals.3
                           II. STANDARD OF REVIEW
       We review a grant of summary judgment de novo, viewing all evidence in
the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234
F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence
reflects no genuine issues of material fact and the non-movant is entitled to


       3
         We are indebted to the Solicitor General of Texas, Ted Cruz, who filed an amicus
curiae brief in this appeal at our request, and to Professor George Dix of The University of
Texas School of Law, who also filed an amicus curiae brief.

                                             4
                                       No. 06-50267

judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “A genuine issue
of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
                                   III. DISCUSSION
       The Sixth Amendment, which is applicable to the states through the
Fourteenth Amendment,4 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.” U.S. CONST. amend. VI. This right “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.”5 Kirby v. Illinois, 406 U.S. 682, 688-89 (1972) (citations and
footnote omitted). But we do not rely formalistically on the label given to a
particular pretrial event when determining the point at which adversary judicial
proceedings have been initiated; instead, “the relevant time is when ‘the
government has committed itself to prosecute’ and ‘a defendant finds himself
faced with the prosecutorial forces of organized society.’”6 Caver v. Alabama, 577
F.2d 1188, 1195 (5th Cir. 1978) (quoting Kirby, 406 U.S. at 689); see also Lomax
v. Alabama, 629 F.2d 413, 415 & n.3 (5th Cir. 1980) (rejecting the use of “purely


       4
        Gideon v. Wainwright, 372 U.S. 335, 342 (1963). For clarity, we will refer only to the
Sixth Amendment when discussing the right to counsel.
       5
          After the Sixth Amendment right to counsel attaches, a defendant is entitled to
counsel at “critical stages” of the proceedings, absent a valid waiver. See Michigan v. Jackson,
475 U.S. 625, 629-30 & n. 3, 632 n.5 (1986).
       Gillespie County does not argue that the time between Rothgery’s release on bond and
his indictment six months later did not constitute a critical stage of the prosecution, and we
do not decide that issue here.
       6
        “We look to state law to determine when adversarial proceedings against the accused
have commenced,” Felder v. McCotter, 765 F.2d 1245, 1247 (5th Cir. 1985), abrogated on other
grounds by Patterson v. Illinois, 487 U.S. 285, 295-96 & n.8 (1988), although the ultimate
Sixth Amendment consequences of certain state procedures is a matter of federal law.

                                               5
                                        No. 06-50267

formal application of quantitative criteria” to determine when adversary judicial
proceedings commenced).
       Following this approach in Lomax v. Alabama, we instructed that “reliance
should be placed on the sometimes elusive degree to which the prosecutorial
forces of the state have focused on an individual.” 629 F.2d at 415. Accordingly,
we held that an arrest, under a warrant secured with a magistrate’s probable
cause determination, did not commence adversary judicial proceedings because
the record did not reflect any prosecutorial awareness of or involvement in the
arrest, nor any participation by prosecutors in preparing the “complaint
affidavits used to secure” the warrant. Id. at 415-16. Similarly, we held in
McGee v. Estelle that in Texas, “an adversary criminal proceeding has not begun
in a case where the prosecution officers are unaware of either the charges or the
arrest.” 625 F.2d 1206, 1208 (5th Cir. 1980).                  We thus concluded that a
warrantless arrestee’s lineup and appearance before a magistrate for Article
15.17 warnings did not initiate adversary judicial proceedings, as prosecutors
were unaware of and uninvolved in either event.7 Id. at 1208-09.
       It is undisputed in this appeal that the relevant prosecutors were not
aware of or involved in Rothgery’s arrest or appearance before the magistrate on
July 16, 2002. There is 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. Compare TEX.

       7
          While the opinion did observe at one point that an Article 15.17 warnings appearance
before a magistrate “does not involve counsel for the state, nor is it a formal charge,” McGee,
625 F.2d at 1209 (emphasis added), we do not read that to imply that formal charges may exist
in Texas without any prosecutorial knowledge or involvement. In context, the statement
merely clarified that prosecutors do not participate in such an appearance, nor are formal
charges filed. We have not held that prosecutors must actually file the document that initiates
adversary judicial proceedings, see, e.g., Felder, 765 F.2d at 1246, 1247-48 (noting that a police
officer’s filing of an affidavit and criminal complaint commenced adversary judicial
proceedings), but merely that adversary judicial proceedings cannot initiate without some
prosecutorial awareness or involvement, McGee, 625 F.2d at 1208; see also Lomax, 629 F.2d
at 415.

                                                6
                                  No. 06-50267

CODE CRIM. PROC. ANN. art. 2.13 (limiting the role of a police officer, in relevant
part, to notifying the magistrate of an offense and arresting offenders), with id.
arts. 2.01-.02 (designating district and county attorneys as the representatives
of the state in all criminal cases and proceedings); cf. Clawson v. Wharton
County, 941 S.W.2d 267, 272 (Tex. App.--Corpus Christi 1996, writ denied)
(recognizing that “the decision not to prosecute is the quintessential function of
a prosecutor” (dash omitted)). And Rothgery provides no reason why the officer’s
acts should somehow be imputed to the prosecutor’s office or should otherwise
be interpreted to signal that Rothgery was opposed by the prosecutorial forces
of the state. Consequently, the summary judgment evidence fails to establish
that adversary judicial proceedings had been initiated against Rothgery during
his magistrate appearance.
      Rothgery raises several arguments against this conclusion. First, he
contends that McGee’s holding on prosecutorial involvement is not good law, as
the Supreme Court has twice found adversary judicial proceedings to have been
initiated without mentioning whether prosecutors were involved. See Michigan
v. Jackson, 475 U.S. 625, 629 n.3 (1986); Brewer v. Williams, 430 U.S. 387, 399
(1977). However, neither case addressed the issue of prosecutorial involvement,
much less the relevance of prosecutorial involvement under Texas law. Further,
both cases involved a defendant who was arraigned on an arrest warrant, and
an arraignment is one of the specific examples given in Kirby of pretrial events
that initiate adversary judicial proceedings. Although Rothgery argues that the
arraignment in Jackson was functionally no different than his appearance here,
the state supreme court opinion preceding Jackson establishes that the
prosecutor’s office approved and issued the complaints and warrants that led to
the arraignment. See People v. Bladel, 365 N.W.2d 56, 71-72 (Mich. 1984). And
while the extent of prosecutorial involvement in Brewer was unaddressed, it does
not appear that the state contested that adversary judicial proceedings had

                                        7
                                        No. 06-50267

begun or otherwise raised the issue. See Brewer, 430 U.S. at 399 (“The State
does not contend otherwise.”). At most, the opinions are neutral on the point,
which is simply not enough for us to ignore our binding authority.8
       Rothgery also argues that McGee is inapplicable here, as the appearance
before the magistrate in McGee only involved the recitation of statutory
warnings, whereas Rothgery’s appearance included statutory warnings and a
probable cause determination that was based on a police officer’s affidavit.
Rothgery contends 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.9
       While only an indictment or information can formally charge a felony
under Texas law,10 see Teal v. State, No. PD-0689-06, 2007 WL 676221, at *2
(Tex. Crim. App. Mar. 7, 2007); see also TEX. CONST. art. I, § 10; TEX. CODE CRIM.



       8
          According to Rothgery, United States v. Gouveia also affirmed that prosecutorial
involvement is unnecessary because it used the word “or” when observing that it had “extended
an accused’s right to counsel to certain ‘critical’ pretrial proceedings . . . recognizing that at
those proceedings, ‘the accused [is] confronted, just as at trial, by the procedural system, or by
his expert adversary, or by both.’” 467 U.S. 180, 189 (1984) (citing United States v. Wade, 388
U.S. 218 (1967), and quoting United States v. Ash, 413 U.S. 300, 310 (1973)) (citations
omitted). But in that passage the Court was discussing the applicability of the right to counsel
at critical stages of the prosecution, not the specific question of when adversary judicial
proceedings are initiated.
       9
          Additionally, Rothgery asserts that his appearance before the magistrate commenced
the prosecution because a magistrate has exclusive jurisdiction over a defendant’s case upon
the filing of a felony complaint until superseded by indictment. See Ex parte Clear, 573 S.W.2d
224, 229 (Tex. Crim. App. 1978). Even assuming that the affidavit in this case served the
same function as the complaint in Clear, we fail to see how a magistrate’s jurisdiction over
preliminary matters alone signals the initiation of adversary proceedings when prosecutors are
unaware of and uninvolved in the proceedings. Indeed, Clear itself involved a complaint that
was sworn before a prosecutor and filed by the prosecutor with the magistrate. Id. at 225-26.


       10
          Complaints may serve to formally charge a misdemeanor offense in justice and
municipal courts. Huynh v. State, 901 S.W.2d 480, 481 n.3 (Tex. Crim. App. 1995).

                                                8
                                       No. 06-50267

PROC. ANN. arts. 21.01, 21.20; GEORGE E. DIX & ROBERT O. DAWSON, 41 TEXAS
PRACTICE: CRIMINAL PRACTICE AND PROCEDURE § 20.01, at 513 (2d ed. 2001),
complaints play a role in felony cases as well. Defined as “[t]he affidavit made
before the magistrate or district or county attorney . . . charg[ing] the
commission of an offense,” TEX. CODE CRIM. PROC. ANN. art. 15.04, a complaint
under Article 15.04 of the Texas Code of Criminal Procedure may serve both as
a basis for a probable cause finding for an arrest warrant, see Huynh v. State,
901 S.W.2d 480, 481 n.3 (Tex. Crim. App. 1995); Lowery v. State, 499 S.W.2d
160, 163 (Tex. Crim. App. 1973), and “as a basis for the issuance of an
information or the commencement of the indictment process,” State v. Boseman,
830 S.W.2d 588, 590 n.3 (Tex. Crim. App. 1992); see also DIX & DAWSON, 41
TEXAS PRACTICE: CRIMINAL PRACTICE              AND   PROCEDURE § 19.01, at 473 (“As a
matter of local practice, . . . complaints may be routinely filed in felony
prosecutions and may reflect prosecutors’ decisions to pursue formal felony
charges in the particular cases.”). Because “the process of prosecution is usually
initiated by the filing of a criminal ‘complaint’” serving that latter function,
Boseman, 830 S.W.2d at 590 n.3, our court and the Texas Court of Criminal
Appeals11 have construed felony complaints to be sufficient to initiate adversary
judicial proceedings.12 See, e.g., Felder v. McCotter, 765 F.2d 1245, 1247-48 (5th
Cir. 1985), abrogated on other grounds by Patterson v. Illinois, 487 U.S. 285, 295-



       11
          While state case law is not binding on our court with regard to the applicability of
the Sixth Amendment to state procedures, state cases are nonetheless useful for determining
the nature of certain state procedures.
       12
           Despite Rothgery’s claim that Nehman v. State, 721 S.W.2d 319, 322 (Tex. Crim.
App. 1986) (en banc), holds that the combination of a probable cause determination and an
Article 15.17 warnings appearance initiates adversary judicial proceedings, the Texas Court
of Criminal Appeals later observed that Nehman’s holding was based on the presence of
“unspecified ‘charges.’” Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994); Nehman,
721 S.W.2d at 323 n.2. At the very least, we must assume that Nehman involved a felony
complaint.

                                              9
                                        No. 06-50267

96 & n.8 (1988); Forte v. State, 707 S.W.2d 89, 92 (Tex. Crim. App. 1986);
Barnhill v. State, 657 S.W.2d 131, 132 (Tex. Crim. App. 1983).
       However, none of those cases details the circumstances involved in the
filing of the dispositive complaint or addresses an affidavit that was filed after
a warrantless arrest to support a magistrate’s probable cause inquiry at an
Article 15.17 warnings appearance. In fact, in similar circumstances involving
a warrantless arrest, a felony complaint, and a magistrate’s probable cause
determination at an Article 15.17 warnings appearance, the Texas Court of
Criminal Appeals chose not to decide whether the complaint initiated adversary
judicial proceedings, which indicates that the relationship between a complaint
and the commencement of a prosecution in Texas is less clear than Rothgery
claims.13 See Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994). As
complaints may be used for different purposes, we simply cannot assume that
the affidavit filed in this case was the same type of complaint addressed in the
cases cited by Rothgery or that it served the same function as those complaints.
       Consequently, we are reluctant to rely on the formalistic question of
whether the affidavit here would be considered a “complaint” or its functional
equivalent under Texas case law and Article 15.04 of the Texas Code of Criminal
Procedure—a question to which the answer is itself uncertain.14 Instead, we


       13
         Green v. State involved a Sixth Amendment claim in the context of an arrest without
a warrant, the filing of a “felony complaint” with a notation indicating the setting of bail, and
an appearance before a magistrate for Article 15.17 warnings and a probable cause
determination. 872 S.W.2d at 718. After discussing the indeterminacy of Texas law on the
question of which procedures serve to initiate adversary judicial proceedings and noting the
cases that have held that the filing of a complaint serves that function, the court stated: “We
need not here decide when adversary judicial proceedings commence. For even if the felony
complaint was sufficient to mark the initiation of adversary judicial proceedings, . . . nothing
occurred at appellant’s [hearing] that would render it a ‘critical stage’ of the prosecution
against him.” Id. at 720.
       14
          As Gillespie County points out, Article 15.04 falls within the “Arrest Under Warrant”
chapter of the Texas Code of Criminal Procedure, indicating that it may only apply to affidavits
offered in support of an arrest warrant. Additionally, the provision refers to “[t]he affidavit”

                                              10
                                        No. 06-50267

must look to the specific circumstances of this case and the nature of the
affidavit filed at Rothgery’s appearance before the magistrate.                        And the
summary judgment evidence, considered in the light most favorable to Rothgery,
fails to establish that adversary judicial proceedings were commenced by the
affidavit in this case.
       The affidavit itself indicates that it was filed for the sole purpose of
establishing probable cause, as it was titled “Affidavit of Probable Cause,” it
primarily consisted of the officer’s account of the events and the alleged offense,
and the portion of the affidavit signed by the magistrate illustrates that the
magistrate relied on the officer’s account to “determine[] that probable cause
existed for the arrest.” The inquiry and its timing shortly after arrest were thus
consistent with the probable cause determination required by Gerstein v. Pugh,
420 U.S. 103, 114 (1975),15 and County of Riverside v. McLaughlin, 500 U.S. 44,
56 (1991), for a person arrested without a warrant. And another form signed by
the magistrate to memorialize the warnings given to Rothgery indicated that
charges “will be filed” in the district court, not that they were being filed
concurrently with the magistrate.
       The only aspect of the probable cause affidavit that even arguably favors
Rothgery’s argument is its use of the word “charge” in the introductory language
to the officer’s identification of the offense for which he arrested Rothgery. Yet
even as a complaint, the affidavit would be insufficient to formally charge


made before the magistrate or prosecutor, TEX. CODE CRIM. PROC. ANN. art. 15.04 (emphasis
added), and its use of the definite article “the” indicates that its scope may be limited to
affidavits detailed elsewhere in the code. The code does not explicitly provide for an affidavit
offered at a probable cause hearing for a warrantless arrestee.
       In practice, however, we cannot say that Texas courts would not consider a post-
warrantless-arrest affidavit of probable cause to be an Article 15.04 complaint or its functional
equivalent.
       15
           The Court in Gerstein also recognized that such probable cause determinations
typically are non-adversarial in nature and do not constitute “critical stages” requiring counsel.
420 U.S. at 120-22.

                                               11
                                      No. 06-50267

Rothgery with the felony, and there is no basis to conclude that the use of the
word “charge” was, or could have been, anything but informal.16 Cf. McGee, 625
F.2d at 1208 (referring to the prosecutor’s lack of awareness of “the charges” in
finding that adversary judicial proceedings had not initiated).
       Most significantly, the summary judgment evidence reflects no
prosecutorial knowledge of or involvement in the arrest and magistrate
appearance, and Rothgery provides no reason to believe that the officer alone
was empowered to commit the state to prosecute Rothgery. Indeed, it took
prosecutors roughly six months after the arrest to seek an indictment against
Rothgery. Without any evidence to indicate that the affidavit actually served to
initiate the prosecution at the time of Rothgery’s magistrate appearance, we
conclude that the filing of the affidavit was part of the investigatory process,
serving solely to validate the arrest without committing the state to prosecute.
                                  IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the district court’s order granting
summary judgment to Gillespie County.




       16
         For similar reasons, we also do not find the use of the word “charged” on Rothgery’s
bond form persuasive.

                                             12
