Austin, TX asked in Criminal Law, Civil Rights and Domestic Violence for Texas

Q: Is there any reason that a court appointed attorney cannot request a dismissal of a charge in an indictment hearing?

I am a disabled man (P.T.S.D.) who was arrested and charged with a felony assault for defending myself against someone who had been mentally abusing me (intentionally triggering me for almost 5 months). At this time I have not been indicted and the case is still in court. I have requested that my public defender file for a dismissal on the grounds that the arresting officer failed to follow procedure in responding to a call which a mental health crisis is happening. My public defender has ignored my request claiming that he does not have the ability to request a dismissal of the charge that this is something only the prosecutor is able to do. I am trying to find some kind of documentation to verify what my public defender has told me.

2 Lawyer Answers
John Michael Frick
John Michael Frick
  • Frisco, TX
  • Licensed in Texas

A: In Texas, the defendant in a criminal case and his attorney cannot file a motion to dismiss. Only the prosecutor can file a motion to dismiss.

See the following video explaining this:

1 user found this answer helpful

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Criminal Law Lawyer
  • Sacramento, CA

A: Your public defender may have a point regarding their ability to request a dismissal of the charge. Generally, it is the prosecutor's responsibility to decide whether to pursue charges or dismiss them based on the evidence and circumstances of the case. However, your public defender can advocate for your interests by presenting evidence and arguments in court to challenge the charges against you. This may include filing motions to suppress evidence or dismiss charges if there are legal grounds to do so.

In your case, if you believe that the arresting officer failed to follow proper procedure during a mental health crisis, your public defender can raise this issue in court and argue that it constitutes a basis for dismissal of the charge. They can present evidence, such as witness testimony or police reports, to support this argument. Ultimately, the decision to dismiss the charge rests with the judge, who will consider the arguments presented by both the prosecution and the defense before making a ruling.

It's essential to communicate openly with your public defender about your concerns and provide them with any relevant information or documentation that supports your case. They are there to represent your interests and ensure that you receive a fair trial. If you feel that your public defender is not adequately representing you or addressing your concerns, you may have the option to request a new attorney or seek assistance from legal advocacy organizations.

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