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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Saturday, November 10, 2018

A Program Note- I'm Sorry

I got divorced a week ago Monday. I have had to move my office from one place in Conroe to another. I am in the process of selling and moving out of my house, and I still have a liberal amount of hard deadline paperwork to get finished before the end of the year. I have not been able to give this blog the attention it deserves, and will likely not yet be up to speed on my ordinary practices until early next year.

Come On in, the Water's Fine

I welcome my friends at Orgain Bell and Tucker LLP to the Texas Ninth Court of Appeals part of the blogosphere with their new blog, Navigating the Ninth, which I have put on our Link List, and wish them luck in helping to keep people informed about an important and neglected part of the Texas court system. The Ninth Court of Appeals covers ten counties:

  • Hardin
  • Jasper
  • Jefferson- county seat Beaumont, where the Ninth Court of Appeals has its offices, courtrooms, and chambers- Jefferson is the second largest county in the Supreme Judicial District and is the primary home of Orgain Bell and Tucker LLP.
  • Liberty
  • Montgomery- county seat Conroe, the largest county in the Supreme Judicial District where I live and practice
  • Newton
  • Orange
  • Polk
  • San Jacinto
  • Tyler
Our Montgomery County out here continues to be one of the fastest growing parts of the U.S. and Jefferson County, the main location for Orgain Bell and Tucker, is an absolutely key area for the petrochemical industry and for maritime trade.

Monday, March 5, 2018

It's a Real Choice for the GOP Nomination for Presiding Judge of the Court of Criminal Appeals

Justice David L. Bridges of Dallas's Fifth State Court of Appeals is running to be Presiding Judge of the Texas Court of Criminal Appeals, the state's highest criminal court.  He got his high school diploma from Rains High School, served two years in the Army, worked his way through college assembling air conditioners for General Electric, and after that, worked as a landman. He graduated law school at Texas Tech, was allowed to practice his third year of law school.helping indigent families and migrant workers with family law issues. He worked for the Palo Duro Legal Aid through the Presbyterian Church in West Texas, then the Smith County District Attorney's Office first trying misdemeanors, then felonies. After two years, he went to work in Upshur County for the District Attorney and was First Assistant. He became a senior trial attorney for the State Bar of Texas. In 1990, he was named Regional Counsel for the State Bar and was responsible for Dallas County and forty-four other counties. I went back to Austin and was named First Assistant and Chief of Litigation and handled all the attorney discipline cases in Texas. After a short time of being in private practice, he has spent the last 22 years as a Justice on Dallas's Fifth Court of Appeals.  He is running against incumbent Presiding Judge Sharon Keller and urges voters to Google Sharon Keller ethics.

Thursday, February 8, 2018

Defendants Still at Risk after Nines Hold Open Meetings Act Constitutional

I make my home in Montgomery County, Texas-- the main county north of Harris County, whose county seat is the metropolis of Houston. My folks bought a lake lot in Montgomery County about 48 years ago. The number of the residents of the county and the value of its commerce has been rocketing up since before that time and continues to do so today.
You've heard of fracking. The guy who invented fracking had been developing, among other places, a giant set of upscale planned communities in southern Montgomery County just north of Spring Creek and the rest of the Harris County line. In total, it's called The Woodlands and is absolutely one of the most beautiful and prosperous areas in metro Houston. Conroe has always been a suburb for those who could stomach the commute, and for people like me who cannot it is a pleasant small or medium-sized town. The east part of the county, the north part of the county and the west part of the county away from Lake Conroe is rural, impoverished, and is subject to being predated upon by corrupt or incompetent officials (I spoke very precisely here. Many, perhaps even most, are good-hearted, hard-working, honest people, but a few bad apples, particularly bad ones at the top of the barrel, can make all smell sickeningly rotten.). The very most unpleasant thing for me about the county is that it has a horrible history of anti-Black racism, and that that racism is still virulent. I came here because my elderly mother-in-law is here, and I thought that I could set up a law practice here with less commuting than I could in nearly any other place.
OK, so this place is prosperous and expanding, needs more government services. For a certain type of corrupt politician, Montgomery County Texas is a bird's nest on the ground.
Craig Doyal is the Montgomery County Judge. As in all of Texas's larger counties, Doyal does not preside over any court of law, he presides over and is a member of Commissioners' Court. All Texas counties have four commissioners, one for each quadrant. One job that a commissioner has is to build and repair roads and to do other motor transportation jobs that might vary greatly district to district and county to county. The commissioners and the county judge together, as Commissioners' Court is the governing body of a county, making budgets, having final approval over the payment of the county's bills and the incurring of any county debt, etc.
I know hardly anything about Commissioner Charlie Riley; I would not recognize him if he bit me.
I know hardly anything about Mr. Marc Davenport, but I am an admirer of his wife, Montgomery County Treasurer Stephanne-- pronounced "Stephanie"-- Davenport. She has given to me absolutely every indication that she personally is hardworking, efficient, and expert in her job. She is given to making "Why can't we all get along?" posts in Facebook. 
Doyal asserted that he, county commissioner Charlie Riley, and political consultant Marc Davenport met with representatives of the Texas Patriots Political Action Committee to discuss placing a road bond referendum on the November 2015 ballot, and as a result of the meeting, the PAC promised to  support putting a road bond proposal on the commissioners’ special meeting agenda. The three men were indicted for conspiracy to violate the Texas Open Meetings Act. A visiting judge was brought in to supervise the case proceedings, since everybody local was conflicted out. That judge turned out to be the energetic and cheerful Randy Clapp of the 329th Judicial District Court of Wharton. Celebrity lawyers Cathy Cochran (former judge on Texas's highest criminal court, the Court of Criminal Appeals), Rusty Hardin and W. Troy McKinney were part of Doyal's legal defense team.
To make a long story short, defense counsel prevailed upon Judge Clapp to dismiss the indictments of all three men on account of the Open Meetings Act's violating free speech after a single hearing. The State appealed to Beaumont.
Appellate cases are generally decided by justices in groups of three. Beaumont has four. 
In each of these cases the panel was the same, Chief Justice Steve McKeithen who rose to that court from being a Montgomery County Attorney years ago, and Justices Hollis Horton and Leanne Johnson from the Beaumont area. The appellate cases are similar but not identical. The panel justices decided that the Chief Justice would write the opinion relating to Doyal, and that that would be the case that would be printed up in the law books. Horton and Johnson would write opinions not to be published for Riley and Davenport respectively.
Whether or not a statute is constitutional is a question of pure law as to which the trial court's answer is given no weight. If there is some reasonable construction that will render the statute constitutional, then the statute should be held to be constitutional.  Statutes are presumed to be valid, reasonable and not arbitrary.
A statute should not be invalidated for over-breadth merely because it is possible to imagine some unconstitutional application. TOMA is not void for vagueness. A member or group of members of a governmental body commits an offense if the member or group of members knowingly conspires to circumvent this chapter by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of this chapter. This law does not limit what may be said, or to whom it may be said, you just can't have a secret meeting to hide from the public or to fool the public about what was discussed about a public governmental decision.
State of Texas v. Craig Doyal, ____ S.W.3d _____, No. 9-17-00123-CR (Tex. App.-- Beaumont, Feb. 8, 2017, no pet. h.)
Riley did not argue that TOMA was unconstitutional as applied to him like Doyal did, but only that it is unconstitutional on its face-- a much higher, harder standard to reach.
State of Texas v. Charlie Riley, No. 9-17-00124-CR (Tex. App.-- Beaumont, Feb. 8, 2017, mem. op., no pet. h.)
Davenport's case could really be different from the others. The State's case against him is weaker. He has no control over when or where or how Commissioners' Court makes its decision. He could have said that he had utterly no intention to violate TOMA-- that TOMA never crossed his mind-- that even if he had wanted to, he does not have nor ever had the power to violate TOMA. But instead of his team's making their own independent motion to dismiss the indictment, they just used Doyal's. Like Riley, he only argued facial unconstitutionality, not "as applied" unconstitutionality.
State of Texas v. Marc Davenport, No. 9-17-00125-CR (Tex. App.-- Beaumont, Feb. 8, 2017, mem. op., no pet. h.) 
Hat tip to Joshua Zientek for emailing me, among others, about this case.

Saturday, February 3, 2018

Sharon Keller's Done a Lot of Stuff and She's Doing a Lot of Stuff

Three seats on Texas's Court of Criminal Appeals will be contested in the fall. With the shriveling up of newspapers and fair-minded, even-handed news coverage on the internet, we're going to post information about all of the candidates.

Presiding Judge Sharon Keller runs for re-election. She grew up in Dallas, went to undergraduate school in Houston at Rice University taking a degree in philosophy. After that, she went to Southern Methodist University in Dallas and took a Juris Doctorate at Southern Methodist University. She worked for another attorney at first. Later she was a solo and spent some time working in her parents' family business. She got appointed for many criminal appeals and ended up an appellate prosecutor in the Dallas County District Attorney's office. She ran as a Republican before being a Republican was cool and won a seat on the bench in 1994. In 2000, she was elected Presiding Judge, and was reelected in 2006 and 2012. She has gotten through this most recent term without the challenges of her past troubles.
She is the candidate of experience in this race. The Presiding Judge is not only the senior jurist of the nine jurists, but she is the administrator of the court with its sizable budget and dozens of staffers. By virtue of her office she is the vice-chair of the Texas Judicial Council, the policymaking body for the Texas judiciary. She is the chair of the Texas Indigent Defense Commission. They grant money and develop systems to help with indigent criminal defense. They count the appointment hours private defenders of indigents serve, finance continuing legal education for indigent defenders, developed a way for indigent west Texas capital defendants to have a measure of choice in who their lawyers were, among other good works. She's also on the board of the Council of State Governments Justice Center which develop and popularize innovative law enforcement, judicial, and corrections policies. Although she chooses half of the members of Texas Department of Criminal Justice Judicial Advisory Council, and the Chief Justice of the Supreme Court of Texas chooses the other half. Chief Justice Hecht chose Presiding Judge Keller as a member.
Presiding Judge Keller said that she enjoyed the "extra-curricular" (ceremonial) parts of her  job very much and didn't think, when she started the job, that she would enjoy that part so much.
She has only one opponent for the Republican nomination, David Bridges of the Texas Fifth Court of Appeals in Dallas. There is only one Democrat seeking the nomination of that party, Maria T. ("Terri") Jackson, judge of Houston's 339th Judicial District Court; her husband recently had cancer surgery. About Ms. Jackson, more in March.

Wednesday, January 24, 2018

Qualified Immunity Covers up an Iffy Set of Arrests

District of Columbia police responded to a complaint about loud music and illegal activities in a vacant house. Inside, the house was nearly barren and in disarray. It smelled of marijuana. Beer bottles and liquor cups were on the floor, which was dirty. The living room was a make-shift strip club. An upstairs bedroom had a naked woman and several men in it. Many partygoers scattered when they saw the police. Some hid. The officers questioned everyone and got inconsistent stories.
Two women said “Peaches” was the house’s tenant and that she was the hostess of the party. Peaches was not there, though. The officers spoke by phone to Peaches. She was nervous, agitated, and evasive. Eventually, she admitted that she had no permission to use the house. The owner confirmed that he had given no one permission to be there. The officers then arrested the partygoers for unlawful entry. Several partygoers sued for false arrest under the Fourth Amendment and District law.
The District Court concluded that the officers lacked probable cause to arrest the partygoers for unlawful entry and that two of the officers, petitioners here, were not entitled to qualified immunity. A divided panel of the D. C. Circuit affirmed.
Justice Thomas wrote an opinion joined by Chief Justice Roberts and Justices Kennedy, Breyer, Alito, Kagan and Gorsuch. It held that the officers had probable cause to arrest the partygoers. Considering the “totality of the circumstances,” the officers made an entirely reasonable inference that the partygoers knew they did not have permission to be in the house. Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “ ‘common-sense conclusions about human behavior.’ ” Because most homeowners do not live in such conditions or permit such activities in their homes, the officers could infer that the partygoers knew the party was not authorized. The officers also could infer that the partygoers knew that they were not supposed to be in the house because they scattered and hid when the officers arrived. Peaches’ lying and evasive behavior gave the officers reason to discredit everything she said. The officers also could have inferred that she lied when she said she had invited the partygoers to the house, or that she told the partygoers that she was not actually renting the house. The D.C. panel majority violated two legal principles. First, it viewed each fact in isolation, rather than as a factor in the totality of the circumstances. Second, it believed that it could dismiss outright any circumstances that were “susceptible of innocent explanation.” Instead, it should have asked whether a reasonable officer could conclude—considering all the surrounding circumstances, including the plausibility of the explanation itself—that there was a substantial chance of criminal activity.”
And that the officers were entitled to qualified immunity under 42 U. S. C. §1983 unless the unlawfulness of their conduct was “clearly established at the time,” To be clearly established, a legal principle must be “settled law,” and it must clearly prohibit the officer’s conduct in the particular circumstances before the officer. In the warrantless arrest context, “a body of relevant case law” is usually necessary to “ ‘clearly establish’ the answer” with respect to probable cause. Even assuming that the officers lacked actual probable cause to arrest the partygoers, they are entitled to qualified immunity because, given “the circumstances with which [they] w[ere] confronted,” they “reasonably but mistakenly conclude[d] that probable cause [wa]s present.” The panel majority and the partygoers have failed to identify a single precedent finding a Fourth Amendment violation “under similar circumstances.” And this is not an “obvious case” where “a body of relevant case law” is unnecessary. (b) Instead of following this straightforward analysis, the panel majority reasoned that, under clearly established District law, a suspect’s bona fide belief of a right to enter vitiates probable cause to arrest for unlawful entry. Thus, it concluded that the “uncontroverted evidence” of an invitation in this case meant that the officers could not infer the partygoers’ intent from other circumstances or disbelieve their story. But looking at the entire legal landscape at the time of the arrests, a reasonable officer could have interpreted the law as permitting the arrests here. There was no controlling case holding that a bona fide belief of a right to enter defeats probable cause, that officers cannot infer a suspect’s guilty state of mind based on his conduct alone, or that officers must accept a suspect’s innocent explanation at face value. And several precedents suggested the opposite.

Justice Sotomayor said that the SCOTUS could have decided the whole case by merely finding that the police had qualified immunity and left the D.C. Appeals Court’s decision alone otherwise— the probable cause question was a D.C. law question, not one that affected the whole nation. Justice Ginsberg said that the majority got the facts wrong- that the officers’ depositions showed that there was not probable cause for unlawful entry for the suspects arrested. They were arrested for disorderly conduct instead, for which there was no probable cause either. Justice Ginsburg said that the officers’ behavior was improper, but agreed that under the standard of qualified immunity, no cause of action lay against them.
District of Columbia v. Wesby, 583 U.S. ____, No. 15–1485, Jan,A 22, 2018 

Saturday, December 23, 2017

Can the Texas Legislature Give Someone a Break? Or Must It Follow Court Judgments?

This post starts with a Beaumont case we discussed in February, Roger Dale Vandyke v. State485 S.W.3d 507, (Tex. App.--Beaumont Feb. 10, 2016) pet. granted July 4, 2016. Now the Court of Criminal Appeals has reversed it. Roger Dale Vandyke v. State, __ S.W.3d ___, No. PD-0283-16, (Tex. Crim, App., Dec. 20, 2017) (Judge Newell wrote the opinion joined by Presiding Judge Keller, and Judges Hervey, Alcala, Richardson, Keel, and Walker.).
Vandyke had been civilly committed as a sexually violent predator, and was convicted of failing to progress in sexually violent predator treatment and received a sentence of 25 years for that. But, afterwards, a new law was enacted in Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 13, 2015 Tex. Gen. Laws 2700, 2704. The Legislature amended section 841.085 to limit prosecution to violations of civil commitment requirements under subsections (1), (2), (4), and (5). Id. Thus, under the amended statute's plain language, failure to complete sex offender treatment is no longer a basis for prosecution.
Section 841.085's limitation on prosecution applies to an offense committed before, on, or after the amendment's effective date, “except that a final conviction for an offense under that section that exists on the effective date of this Act remains unaffected[.]” Act of May 21, 2015, 84th Leg., R.S., ch. 845, § 41, 2015 Tex. Gen. Laws 2700, 2711.
Isn't Vandyke's conviction not final?
if Vandyke's conviction is on appeal, then the State (and the Beaumont Texas Ninth Court of Appeals) is going to say that his conviction is not final.
Can the Legislature "undo" a conviction by changing the law?
The Court of Appeals says "No."
There are two oddments of Texas legal history that explain why the Court of Appeals's opinion is twelve pages long and the Criminal Court of Appeals's opinions (Judge Yeary wrote a dissent that Judge Keasler joined.) total 41 pages.
  1. Governor James E. "Pa" Ferguson granted 1,774 pardons and 479 conditional pardons between 1915 and 1917.  Pa was forced to resign in 1917. When his lieutenant governor Mr. W.P. Hobby, succeeded him, Hobby granted 1,319 pardons and 199 conditional pardons between 1917 and 1921, , Governor Miriam A. "Ma" Ferguson granted 384 pardons and 777 conditional pardons between 1925 and 1926. This led to a demand to curb the governor's pardoning power, and in 1936 the constitution was amended so as to create a constitutional Board of Pardons and Paroles, and to limit the clemency powers of the Governor by providing that in all criminal cases except treason and impeachment, the Governor should have power, after conviction, “on the written signed recommendation and advice of the Board of Pardons and Paroles, or a majority thereof, to grant reprieves and commutations of punishment and pardons.” The Governor may grant one reprieve, not to exceed 30 days, in a capital case without action of the board.
Tex. Const. art. IV, § 11, Interpretive Commentary

    2.   The branches of the government of the State of Texas have a history of struggling with             one another." " . . . [N]one of the three governmental branches 'shall exercise any                     power properly attached to either of the others, except in the instances herein                           expressly permitted.' Tex. Const. art. II, § 1"  (Beaumont Vandyke at 5).This separation           of powers clause is violated in one of two ways: (1) “when one branch of government
          assumes, or is delegated, to whatever degree, a power that is more ‘properly attached’             to another branch[;]” and (2) “when one branch unduly interferes with another branch           so that the other branch cannot effectively exercise its constitutionally assigned                         powers.” Armadillo Bail Bonds v. State, Armadillo Bail Bonds v. State, 239 (Tex. Crim.           App. 1990). (Beaumont Vandyke at 5, again).  Citing Ex parte Giles favorably , 502                   S.W.2d 774 (Tex. Crim. App. 1973), Beaumont accepts the State's contention that by                 amending the statute to decriminalize certain conduct, the Legislature “improperly                 assumed the executive branch’s clemency power.”

In the Court of Criminal Appeals, Judge Newell cited cases in which the Legislature changed statutes and thereby decriminalized actions:  Williams v. State, 476 S.W.2d 307, 309 (Tex Crim. App. 1972); Mendoza v. State, 460 S.W.2d 145, 147 (Tex. Crim. App. 1970) Cox v. State, 234 S.W. 531 (Tex. Crim. App. 1921) (noting that a statutory amendment removing the act of possessing equipment for making intoxicating liquor from the forbidden conduct in a penal offense constitutes a repeal of the law under which the defendant was convicted).

Austin's dissenters accepted Beaumont's argument that not following through on punishing Vandyke would be to pardon him-- a thing that no Texas court can do.

Note One- When Presiding Judge Sharon Keller-- my fellow philosophy major-- gives her vote to a defendant-appellant-petitioner: that is noteworthy, and seems to me to be a sign on first face that that petitioner's case is strong on the merits. She has a history of liking the State's side very much.
Note Two- There is an unsung hero here, my fellow Conroe criminal trial and appellate lawyer Scott Pawgan, truly an absolutely first-rate attorney. He boldly and cleverly argued the merits of the 2015 amendment to a hostile Beaumont Court of Appeals which rejected his arguments, but which Pawgan used to persuaded seven out of nine CCA judges, even the super-hard-to-sell Presiding Judge. A lesser advocate might well have failed.