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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, 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.

Monday, December 18, 2017

Criminal Case Need Not Shut down Civil Discovery on the Same Facts.

A guy does a bad thing to another person. That person sues the guy and starts discovery. The guy is charged with a crime on basically the same facts. As a civil defendant, the guy asks to be excused from civil discovery until the criminal case is disposed of. Trial judge grants it.
The civil plaintiffs ask the appeals court for a writ of mandamus to force the trial judge to continue civil discovery-- the defendant may assert privileges against inquiries that would require waiver of rights not to self-incriminate, but the defendant will have to assert them. The court of appeals conditionally issues the writ. Conditionally issuing the writ means that the court of appeals won't imperiously order the trial judge to do its will, but trusts the trial judge to whatever is appropriate in light of the opinion, and will only order the trial judge to do something if the trial judge dawdles about taking the COA's hint. (If there's a mandamus case where the COA does issue a direct order, that means that it is angry with the trial judge.)
In re Tina Fontaine and Gerald Fontaine, No. 17-08-09496-CV2017 WL 6390530, Tex. App.-- Beaumont, Dec. 14, 2017 (mem. op.) (per curiam) (orig. proceeding)

Monday, October 2, 2017

U.S. Supremes Not Coming to Rescue Civilly Committed Sex Offenders, at Least, not Soon

United States Supreme Court announced today that it would not hear a case concerning the constitutionality of Minnesota's sexually violent predator law. The committed people won in the trial court, the State of Minnesota took it up on appeal to the United States Court of Appeal for the Eighth Circuit, which overturned the trial court. The committed people had asked the United States Supreme Court to hear it, but the high court did not. With very few exceptions, SCOTUS gets to choose the cases it wants to hear. About 7,000 to 8,000 cases are brought to SCOTUS each year that someone wants them to hear. About 80 get the full treatment-- merits briefing and oral argument, and about a 100 get some kind of ruling without oral argument, etc. The chances of SCOTUS taking any case in particular is a little more than one out of a hundred.

Today, the first Monday in October, is the beginning of the court's term for this year. The Justices' main holiday is from the end of May to September. You may ask what do the Justices do in September before the official beginning of the court's term. What they do is prepare and have the Long Conference. The Justice meet together most Fridays to choose what cases to hear and which justice will supervise the writing of court's opinion in each case. But they don't have such meetings over their summer vacation. When they come back, they have about three months' requests for cases to be taken, and they get rid of those summer requests in one long meeting-- the Long Conference in September.

On that first Monday in October, SCOTUS announces that it is taking or refusing to take about one-third of the cases for the year.

The Beaumont Court of Appeals is still responsible for far more of the appeals of sexually violent predator civil commitment matters than the other courts. If SCOTUS had taken the Minnesota case mentioned above, SCOTUS could have decided to make major changes in that law that would have affected every state, including Texas. But those old rivers, the Potomac and the Neches will likely keep on flowing the way they always have, at least for another year.

Monday, September 4, 2017

Texas Supreme Court and Court of Criminal Appeals Clarify Texas Rule of Appellate Procedure 33.1

The Texas high courts say this rewording is intended only to clarify, and not to change, existing law. They say it's been in force since July 1, 2017. The new part is in bold; the old in regular Roman.
33.1. Preservation; How Shown
(a) In General. As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure; and

(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.

(b) Ruling by Operation of Law. In a civil case, the overruling by operation of law of a motion for new trial or a motion to modify the judgment preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.

(c) Formal Exception and Separate Order Not Required. Neither a formal exception to a trial court ruling or order nor a signed, separate order is required to preserve a complaint for appeal.


(d) Sufficiency of Evidence Complaints in Civil Nonjury Cases. In a civil nonjury case, a complaint regarding the legal or factual insufficiency of the evidence— including a complaint that the damages found by the court are excessive or inadequate, as distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to make an additional finding of fact—may be made for the first time on appeal in the complaining party’s brief.

Friday, September 1, 2017

Texas Rule of Appellate Procedure 4.6 Did Not Go into Force Friday, September 1, 2017

In the last issue of the Texas Bar Journal-- August 2017, the Texas Supreme Court and the Texas Court of Criminal Appeals, promulgated Texas Rule of Appellate Procedure 4.6 as a rule that would go into effect last Friday, Sept. 1, 2017. The weekend's new September 2017 issue withdraws those notices so that there can be more public comment (I bet the prosecutors didn't like one or more things about it.).



Here is the proposed new T.R.A.P. 4.6.
No Notice of Trial Court’s Order on Motion for Forensic DNA Testing
     (a) Additional Time to File Notice of Appeal. Notwithstanding Rules 26.2 and 26.3, a defendant may move for additional time to file a notice of appeal under Code of Criminal Procedure chapter 64 (Motion for Forensic DNA Testing) if the defendant neither received notice nor acquired actual knowledge that the trial judge signed an appealable order before the time for filing a notice of appeal had expired.
     (b) Contents of Motion for Additional Time. The motion must be in writing and sworn, state the earliest date when the defendant first received notice or acquired actual knowledge that the appealable order had been signed, and comply with Rule 10.5(b)(2).
     (c) When and Where to File.
          (1) The motion must be filed within 30 days of the date upon which the defendant first received notice or acquired actual knowledge of the trial court’s signing of the appealable order. But in no event may the motion be filed more than120 days after the date the appealable order was signed.
          (2) The motion must be filed in the proper court of appeals.
     (d) Order of the Court. The court of appeals must grant a motion for additional time if it finds that the defendant neither received notice nor acquired actual knowledge of the trial judge’s signing of an appealable order before the time for filing a notice of appeal had expired and that the defendant timely filed the motion for additional time. The time for filing the document will begin to run on the date when the court grants the motion.

Friday, August 25, 2017

Do Not Lose Your Mind While Seeking Findings of Fact and Conclusions of Law in Texas

This is about appealing a Texas state bench trial. The fact-finding judge does not need a jury charge (Though I confess I make one up when practical. It'll tell me what kind of findings the appeals court will likely expect the side with the burden of proof to have proven.).

I start with practical experience.

1. Usually the trial judge asks the party who is going to be the appellant to draft proposed findings of fact and conclusions of law. If something is found wrong with the findings and conclusions, the party that's going to suffer is the winner at trial. The trial judge may change them greatly, but at least gets to edit someone else's first draft instead of starting from scratch.

2.    They're called findings of fact and conclusions of law. But conclusions of law.as compared to findings of fact are trivial. Conclusions of law, are, at least in part, redundant with the judgment. I've even seen judges propose and sign findings of fact and make no conclusions of law at all.

3. There is nothing illegal or improper for the loser at trial to file their own proposed FoF & CoL. In extremely rare cases the trial judge has been so impressed by the loser's FoF & CoL, that the judge switches sides as to the judgment.

Findings of fact and conclusions of law have to be requested within 20 days after a final judgment is signed. But there's more.If the court fails to file timely findings of fact and conclusions of law, the party making the request shall, within thirty days after filing the original request, file with the clerk and serve on all other parties in accordance with Rule 21a a "Notice of Past Due Findings of Fact and Conclusions of Law" which shall be immediately called to the attention of the court by the clerk. Such notice shall state the date the original request was filed and the date the findings and conclusions were due.Upon filing this notice, the time for the court to file findings of fact and conclusions of law is extended to forty days from the date the original request was filed.

SO ASKING ONCE TIMELY FOR FoF and CoL IS NOT ENOUGH. YOU HAVE TO ASK TIMELY TWICE.

The parties can ask for specified or amended within ten days, If trial court is not sea No findings or conclusions shall be deemed or presumed by any failure of the court to make any additional findings or conclusions.

In a Texas state criminal case, an appeals court may order a trial judge for file FoF and CoL notwithstanding  what the parties did about these points. Cf. Tex. R. App. P. 34.5 (c) (2).