Legal ResearchJo Dale BeardenProgram Coordinator Texas Municipal Court Education CenterTexas Municipal Court Education Center

What Is Legal Resea ch?What Is Legal Research?

The investigation of information necessary toinformation necessary to support legal decision-making.

What Can I Do With Legal Research?

Must a waiver for a jury trial be in writing?Who has the authority to dismiss a case?This is a legislative year- do you want to be aware of what new statutes have

d ti l l t t t th t ff tpassed, particularly statutes that affect the way your job is done.

Ca eatCaveat

Legal research affecting court procedures or policies should be done by the city attorney or a law trained judge.Avoid the unauthorized practice of law, potential for prosecution and exposing pote t a o p osecut o a d e pos gcourt to liability.

So ces of LaSources of Law

“Sources of Law” has three meanings:Origins of legal concepts and ideasg g pGovernmental institutions that formulate legal rulesPublished manifestations of law: books, legal databases, law review articles, and newsletter.

Sources of LawSources of Law

Legal authority- any published source of law setting forth

Primary- statements of law by government institutions, such as written opinions of h i ilaw setting forth

rules, legal doctrines, or legal reasoning

the court, constitutions, legislation, and rules of the court.S d t t t

g gthat can be used as a basis for making legal decisions

Secondary- statements about the law used to explain or interpret the law, for example a TMCEC newsletterdecisions. example, a TMCEC newsletter on how to apply a provision of the transportation code.

Deg ee of Pe s asi enessDegree of Persuasiveness

Authority is an estimation of the power of information to influence a legal decision.

Binding (mandatory)- court believes the g ( y)authority applies to the case and must be followed.Persuasive- a decision-maker can, if so persuaded, follow it.

Only PRIMARY authority can be binding.Only PRIMARY authority can be binding.Some PRIMARY authority is merely persuasive for example Attorneypersuasive, for example Attorney General’s Opinion are not binding.SECONDARY sources can never beSECONDARY sources can never be binding, but they can be persuasive.

Common La T aditionCommon Law Tradition

Common law tradition- body of law that originated and was developed in England, it

d t th l i th t E l d ttl dspread to the colonies that England settled.Historically common law consisted of unwritten lawunwritten law.Instead the decisions of the court were handed down over the years and reflected inhanded down over the years and reflected in the decisions of the court.

PRECEDENTPRECEDENT

Stare decisis- doctrine that refers to a previously decided case that guides the decision of future casesdecision of future cases.Ratio decidendi- the holding or the principle of law on which a case was decided. “rule of the case”Dictum- the language used is an opinion that i t ti l t th h ldi f d i i Itis not essential to the holding of a decision. It is not binding on the court, but can be persuasive.persuasive.

E ec ti e B anchExecutive Branch

Includes President of United States, and Governor of Texas and the orders that they iissue.Administrative law- administrative agencies have the authority to create and publish ruleshave the authority to create and publish rules and regulations that must be followed.

DPS and the FTA program published in the TexasDPS and the FTA program, published in the Texas Register and were codified in 37 Texas Administrative Code (sec. 15.111-15.124)

Government Entity Kind of Law Type of Collection

1. Legislature Statutory Law Session laws (chronological, i.e., by date of enactment of statute) Statutory codes (by subject matter, regardless date of enactment)

2. Agencies Administrative Law Administrative registers (chronological i e by date(chronological, i.e., by date of issuance of rules) Administrative codes (by subject, regardless of date of issuance

3. Judiciary Common Law Case reporters (chronological, i.e., by date of issuance of rules) Case digest (case summaries arranged by subject, regardless of date)

Mate ials fo Legal Resea chMaterials for Legal Research

There are three broad categories of published legal resources.

Primary sources- authoritative statements of legal rules by governmental bodies.Secondary sources materials about lawSecondary sources- materials about law that are used to explain or interpret law.Index, search or finding tools- tools to helpIndex, search or finding tools tools to help locate and update primary and secondary sources.

The Legal Resea ch P ocessThe Legal Research ProcessStep 1: gatheringStep 1: gathering, identifying and analyzing factsStep 2: framing the legal issues to be researchedresearchedStep 3: arranging issues in a logical patternStep 4: researching issuesStep 5: updatingStep 5: updating

Legal Research: Step 1Legal Research: Step 1

Step 1: gathering, identifying and analyzing factsGather all details surrounding question. Starting with the questions: who? What? When? Where? Why? And how?

Rules are tied to specific fact situationFor example, west publishing:

PARTIES involved in the casePARTIES involved in the casePLACES where the facts arose, and OBJECTS and THINGS involvedBASIS of the case or ISSUE involvedBASIS of the case or ISSUE involvedDEFENSE to the action or issueRelief sought

Legal Resea ch Step 2Legal Research: Step 2Step 2: framing the legal issues to beStep 2: framing the legal issues to be

researched.Classify or categorize the the problem into general and increasingly specific areas.For example, does your question require a federal state or local law?federal, state or local law? Consult secondary sources for more information.Note & begin to research any constitutional statutes, administrative regulations, or judicial opinions cited in the materialjudicial opinions cited in the material.

Legal Resea ch Step 3Legal Research: Step 3

Step 3: arranging issues in a logical pattern• Outline the issues in logical order• Narrow and widen the issues as appropriate• Narrow and widen the issues as appropriate

Legal Resea ch Step 4Legal Research: Step 4

Step 4: researching issuesLocate all law, including constitutional , gstatutes and administrative regulationsLocate all case law, Read all relevant case law, do not limit yourself to one case on the issue

A B ief Look at Code BooksA Brief Look at Code Books

Table of Contents for bookQuasi- Table of Contents for codeQuasi Table of Contents for codeQuasi-Table of Contents for chaptersIndex no page numbersIndex, no page numbers

Code Books contCode Books cont.

Penal CodeChapters 1-12 tell

h t i t t

Code of Criminal Procedure

you how to interpret the rest of the code.Organized by topic

First few chapters tell you how to interpret the rest of Organized by topic e p e e es othe CodeOrganized h l i llchronologically

Chapter 45

The Legal Resea ch P ocessThe Legal Research Process

Step 5: updatingThe law is constantly changing or being y g g gmodified

If not using electronic sources:Paper copies of statutes are updated through pocket parts or supplementalShepardize case law through Shepard’s CitationsShepardize case law through Shepard s Citations

Inte p eting Legal CitationsInterpreting Legal Citations

Federal statutesU.S.C- United States Code

42 U.S.C. 1983↑ ↑ ↑

Title # Law/Code SectionCodeU.S.C.A- United States Code Annotated

F d l f d l

Title # Law/Code Section#

Federal federal casesU.S.- United States reports

Tate v Short, 401 U.S. 395(1971)↑ ↑ ↑ ↑ ↑

Case Name Vol. Reporter 1st YearpS.Ct. Supreme Court Reporter

Abbr. Pg.

Inte p eting Legal CitationsInterpreting Legal Citations

State StatutesC.C.P.- Code of C i i l P d

Article 38.30, C.C.P↑ ↑

Article # StatuteCriminal ProcedureP.C.- Penal CodeF C - Family Code

Article # StatuteCode Name

F.C. Family Code

State LawS W 2d-

Geesa v State 820 S.W.2d 154 (Tex. Crim.App. 1993)

↑ ↑ ↑ ↑ ↑S.W.2dSouthwestern Reporter

Vol. Pub. Page Court YR

Inte p eting Legal CitationsInterpreting Legal Citations

Attorney General OpinionsOp.Tex.Att’y Gen. No. DM-464 (1997)p y ( )

↑ ↑ ↑Name of Opinion Year

Att’y Gen NumAtt y Gen Num

JC- John CornynDM- Dan MoralesJM- Jim MattoxMW- Mark White

Reading a Case

Web Sites fo Legal Resea chWeb Sites for Legal Research

http://www.findlaw.comSupreme Court CasesState Cases & Statutes

http://www.capitol.state.tx.us/State StatutesSearch

http://www westlaw comhttp://www.westlaw.comhttp://www.lexis.com

Re ieReview

Different sources of lawThe legal research processThe legal research processLegal citationsHow to read a caseHow to read a caseLaw based websites

Application

Can Municipal Court Clerks Issue a Capias?Issue a Capias?

Legal Resea ch P ocessLegal Research Process

Step 1: IdentifyClerksMunicipal courtsCapias

Step 2: ClassifyFederal law, state law, or ordinance?

State Law

Secondary sources? TMCEC study guide- Level 1, Chapter 4, page 21TMCEC study guide Level 1, Chapter 4, page 21

Who Has Authority to Issue.In misdemeanor cases, the capias or summons shall issue

from a court having jurisdiction of the case. (Article 23.04, C.C.P.).

Although article 23.01, C.C.P. says that a “capias” is a writ issued by the court or clerk a municipal court clerk does notissued by the court or clerk, a municipal court clerk does not have the authority to issue a capias. In Sharp v. State, 677 S.W.2d 573, a City of Houston municipal court clerk issued a capias writ for violating the “helmet safety law.” The defendant was later arrested on that warrant and as a result of this arrest was charged with and convicted of possession of methamphetamine. The Court held that authority was not vested in the deputy municipal court clerk under Texas lawvested in the deputy municipal court clerk under Texas law to issue a capias writ. Because a magistrate failed to direct the issuance of the capias and to determine probable cause, the defendant’s arrest was illegal and the evidence discovered as a di t lt f th t t b d I C i St tdirect result of the arrest must be suppressed. In Crain v. State, 759 F.2d 412 and 766 F.2d 193 (1986), a district attorney and county attorney were held liable for the district attorney’s devising a county policy authorizing clerks rather than judges todevising a county policy authorizing clerks rather than judges to issue misdemeanor capias.

Step 3: Arrange issuesChapter 45 , C.C.P. (Deals with municipal courts)Chapter 23, C.C.P. (Deals with Capias)State case law

Step 4: Researching IssuesApplicable LawppCase Law (helps to determine how the law should be applied)

Resea ch NotesResearch Notes

Art 23.01 CCP, “writ issued by a court or l k”clerk”

But, the TMCEC study guide saidstudy guide said something about a case? And I shouldcase? And I should always check case law.

Resea ch NotesResearch Notes

Art 23.01 CCP, “writ issued by a court or l k”

Sharp v. State says that a capias by a l k i i ffi i tclerk”

But, the TMCEC study guide said

clerk is insufficient.

study guide said something about a case? And I should

RESULTING ANSWER: NO

case? And I should always check case law.

Other ElectronicOther Electronic SourcesSources

I th i i l tIs the municipal court required to conductrequired to conduct trials within 60 daystrials within 60 days after the case is filed?after the case is filed?

Legal Resea ch P ocessLegal Research Process

Step 1: IdentifytrialsMunicipal courtsMunicipal courtsCase filedSpeedy Trial

Step 2: ClassifyFederal law, state law, or ordinance?

State LawState Law

Secondary sources? TMCEC study guide- Level 1, Chapter 5, page 12

PART 4PART 4SPEEDY TRIAL

The right to a speedy trial arises from the time the defendant is formally accused or arresteddefendant is formally accused or arrested.In Meshell v. State, 739 S.W.2d 246 (Tex. Crim. App. 1987), the Texas Speedy Trial Act was declared unconstitutional. But a defendant has not lost his or her right to a speedy trial. The speedy trial guarantee made by U.S. Constitution p y g yamendment VI still applies. Now courts must decide each speedy trial issue raised on its own merits. When a defendant comes before a judgemerits. When a defendant comes before a judge and claims that his right to a speedy trial was violated, the judge must consider the individual circumstancescircumstances.

Step 3: Arrange issuesHint: Deals with municipal courts

Chapter 45 , C.C.P. Hint: Deals with Speedy Trials

Chapter 32A, C.C.P. C apte 3 , C CState case law

hStep 4: Researching IssuesApplicable LawCase Law (helps to determine how the law should beCase Law (helps to determine how the law should be applied)

Resea ch NotesResearch Notes

Chapter 32A CCP, “60 days of the commencement of a

But, the TMCEC study guide said

thi b tcriminal action if the defendant is accused of a misdemeanor

something about a case? And I should always check casepunishable by a

sentence of imprisonment for 180

always check case law.

pdays or less or punishable by a fine only.”y

V liditValidity

This a ticle decla edThis article declared unconstitutional in Meshell v. State, ,739 S. W.2d 246 (Cr.App. 1987) see notes of decisions postsee notes of decisions, post.

Resea ch NotesResearch Notes

Chapter 32A CCP, “60 days of the commencement of a

But, the TMCEC study guide said something about a case? And I

criminal action if the defendant is accused of a misdemeanor

should always check case law.Meshell v state declared

punishable by a sentence of imprisonment for 180

Meshell v state declared the article unconstitutional.

pdays or less or punishable by a fine only.”

RESULTING ANSWER: NO, but the court must d id h it

ydecide each case on its merits.

The End