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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, August 31, 2013

Formally Citing a Federal Statute?- Check the United States Code, the 2012 Version.

A new edition of the United States Code started last year (The federal Government Printing Office basically does a new one every six years, and, in the interim, they put out supplements, like yearbooks added onto an old-fashioned printed encyclopedia.). The Bluebook says that the proper way to cite a federal statute is to cite it to the U.S.C. You're supposed to give the volume number and the date for the section you are citing. So, in the most formal legal writing situations, you have to look up every citation of a federal statute in the official printed United States Code published by the GPO to cite it to Bluebook standards. If I won the lottery, I would just buy every new volume each time one came out. As of this writing, there appear to be six volumes so far, each costing from between $138 and $156. If I spent that kind of money on infrequently used law books (I do much more Texas state work than I do federal work.), the financial controller of my law firm (AKA my wife) would have my ass.

As a practical matter, for formal citation of federal statutes, I am almost certainly going to need to make at least one trip to a Houston law library.

Do not confuse the U.S.C. with the United States Code Annotated by West-- probably the print edition easiest to access-- or the United States Code Service by LexisNexis. The annotations of these versions make them much more helpful for actual research. The rap on these two is generally that West's has a few more notes. The very,very nice folks at LexisNexis say that their version is more carefully edited-- that is, the extra annotations in West's aren't really interpretive-- they include a lot references to U.S.C. sections that are merely formal and add nothing, and LexisNexis costs a great deal less. Of course, access to U.S.C.A. is on the Westlaw computer service and U.S.C.S. can be gotten to on LexisNexis's website.

There are many fine, no-charge Internet sources of federal statutes:
U.S.C.A., U.S.C.S. and the no-charge cites above don't have the formal volume numbers and year numbers that the Bluebook requires, but they are fine for everyday use.

The GPO's annual U.S.C. CD-ROM is only $15, but presently the latest one is the one in which the statutes in force as of January 5, 2009 are collected.

People will look back at these times when formal legal citation required a book full of paper pages to be checked as a dark ages, and it might be that a physical edition may always have to be authoritative or authoritatively checked, but there's no reason it could not be some sort of read-only data file, one for which access could be gotten for no charge, notwithstanding at least one trend going the other way. It's no surprise that the Government Printing Office wants to change its name to the Government Publishing Office, since putting ink on paper will be less and less of what it does.

Wednesday, August 28, 2013

Of Texas Community Supervision, a Motion for New Trial and Passing out in the Whataburger Drivethrough

Two of the things your humble correspondent loves are:

  1. The Effect of a Motion for New Trial on the Finality of a Judgment; and
  2. The food at Whataburger, which really is a Texas Treasure.
This case has both.

Jerry Paul Lundgren had been convicted of driving while intoxicated in 2009.  On January 7, 2011, his case was plea-bargained in a Wise County Court at Law at the county seat, Decatur. He was sentenced to 365 days confinement, suspended for 18 months while he was on community supervision (adult probation). Two conditions of the probation were that Lundgren was not to commit any new offenses nor to drink any alcohol. The court said Lundgren's probation was to start that day-- January 7, 2011-- and it was quite clear from what Lundgren was told from the bench and in his plea paperwork that he was giving up his right to appeal.

January 14, 2011, Lundgren, like many Texans, heard the siren song of Whataburger, and unfortunately for him, he passed out in a silver truck in the drivethrough lane, flunked a field sobriety test and found himself being escorted back to the jail for DWI.

On January 19, 2011, he filed a notice of appeal of the January 7 judgment. On January 28, 2011, he filed a motion for new trial, which, under Texas Rule of Appellate Procedure 21.8(c,) was overruled by operation of law on March 23, 2011. On February 18, 2011, the State filed a motion to revoke his probation because he had committed a new offense and had drunk alcohol. On March 3, 2011, the Second Court of Appeals in Fort Worth dismissed his appeal for lack of jurisdiction (Remember, on January 7, he had given up his right to appeal.). Fort Worth issued its mandate in the case May 2, 2011.

June 22, 2011 the trial court entered a “Post Mandate Enforcement of Prior Judgment of Conviction Sentence Suspended,” starting the sentence that same day. It correct the judgment two days later, to add a driver's license suspension that had been in the original January 7 judgment, but which had been left out of the June 22 judgment. It, too, said that the new sentence started June 22. On July 13, 2011, Lundgren filed a motion to quash the State's motion to revoke because the January 7 judgment had not been final on January 14. He also moved to suppress the evidence against him from the Whataburger incident (It is much easier to arrest a person and get evidence against such a person if the person is on community supervision. Such a person has given up privacy protections that ordinary people have not given up.). The trial court denied the motion to suppress, found that Lundgren had violated his community supervision conditions, revoked his community supervision, and sentenced him 300 days in jail. Lundgren appealed.

The panel in this case was Justices Lee Ann Dauphinot, Sue Walker, and Lee Gabriel. Gabriel wrote an opinion that Walker joined. Dauphinot dissented. The majority held that it was absurd that a motion for new trial could retroactively eliminate probation conditions, and, thereby, probation violations. Dauphinot argues that there are many good reasons why a person entering into a no-appeal plea bargain might want to file a motion for new trial, and that Milburn v. State, 201 S.W.3d 749 (Tex. Crim. App. 2006) stands for the proposition that a community supervision judgment could be vitiated by a motion for new trial. She also pointed out that the trial court could have made Lundgren waive his right to a motion for new trial or the judge could have put Lundgren on personal bond with the probation conditions being the bond conditions. That would have worked no matter what the new trial/appellate status of the case would have been.

I would hope that court of criminal appeals would take this case up, but if I had to bet, I don't think they will-- too much of a hot potato, being opposed by Mothers Against Drunk Drivers, etc.

Thanks to the estimable Jim Skelton for hipping me to this case.His Criminal Law Institute is a great source of learning for Texas criminal defense lawyers, and a great value.
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Walker and Gabriel, JJ.) (no pet. h.) 
Lundgren v. State, ___ S.W.3d ___ (No. 02-12-00085-CR, Aug 22, 2013) (Dauphinot, J., dissenting) (no pet. h.)

Sunday, August 25, 2013

Interlocutory Texas State Discovery Appellate Court Relief

Texas state trial courts are less open to interlocutory (that is, non-final) appeals than their federal counterparts. A common way for an appellate issue to arise in a Texas state civil trial is a party to seek to mandamus the trial about a discovery matter-- usually a defendant's fighting disclosure. The final judgment rule prevents straight-up interlocutory appeal about this kind of thing. In order for mandamus relief to be warranted the law has to be so clear in favor of the party seeking mandamus, that the judge's duty is not one that requires any judicial discretion. The judge's duty needs to be a ministerial one-- a clerical act more than a judicial one. Additionally, the judge's failure to follow the law needs to be irreparably harmful to the party. If it is not, then there is no reason to get a mandamus-- the party could just wait until after the trial. This kind of mandamus is subject to the challenges and weirdnesses that I have discussed in at least four other blog posts.

Friday, August 16, 2013

The Nines Split a Decision re Adequacy of an Attempt to Contest a Will

Mr. Adrian V. Newman executed a will April 11, 2012 in which he disinherited one of his sons-- Kenneth L. Newman. Adrian Newman died June 17, 2012. Letters testamentary were issued as to this will per an order dated July 10, 2012. The proponent of that will caused a certificate to be filed that Adrian Newman had five children-- one of them- the proponent-had appeared in court, one of the other children waived notice and no one else needed notice. Kenneth contested the will January 31, 2013. The proponent's response to this contest had the file mark of January 10, 2013. The trial judge overruled Kenneth's contest in an order dated January 31, 2013-- the same day that Kenneth's contest was filed- saying that Kenneth's contest was wrong on the merits, that his contest lacked evidence and was "not . . . timely." Chief Justice McKeithen and Justice Horton held that Kenneth's contest was filed within the two year period for will contests and that Kenneth did not have to produce evidence in his pleading, because he had the right to a jury trial. Justice Gaultney dissented, saying Kenneth had not supported his argument that the trial judge was wrong, nor his claim of timely filing In the Estate of Adrian V. Newman, No. 09-13-00076-CV (Tex. App.-- Beaumont, July 11, 2013) (mem. op.) (McKeithen, C.J. and Horton, J.)

Saturday, August 3, 2013

If You Like this Blawg, Please Tell the American Bar Association

Here's the link to their form. I don't do it for money; if you like what I do, please share the love so that others will be told about it. Thanks.http://www.abajournal.com/blawgs/blawg100_submit/?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly