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Brenda's Husband, Joe's Dad and Bonny's Brother.

Sunday, February 21, 2016

Beaumont Keeps Past and Present Relief from Being Granted to "Failure to Complete Sex Offender Treatment" Convicts by Legislature.

VanDyke v. State, ___ S.W.3d ___, No. 09-14-00137-CR (Tex. App.-- Beaumont, Feb. 10, 2016, no pet. h.)


Know Nothing About Texas's Sexually Violent Predator Law? This Paragraph's for You.

Seventeen years ago, Texas created a sexually-violent-predator law. Texas prisoners about to be released who had had two sex offenses and who had a behavioral abnormality which made them likely to reoffend could be brought to a jury trial, and if those facts were established. those people were made subject to supervision by a state agency, which created and enforced a plethora of rules (Communicating with any person without the permission of the agency was a violation-- viz. during a phone call home to the family, saying "hello" to a family member who was a minor was a violation. If the power went out on the 35-year-old portable tracking transmitters-- the volume of a medium-to-large reference book--  issued to the offender, that was held to be a violation. If one did not follow the rules, they could be convicted of a third degree felony. Practically everyone in the program had two prior felonies, so that these violation sentences could result in prison terms of 40 years or life.
This program (first called Council on Sex Offender Treatment (CSOT), then Office of Violent Sex Offender Management (OVSOM), now Texas Civil Commitment Office (TCCO)) and the court and the judge in charge of these matters have had more problems over the last three years than can fit in a blog post.

Texas Improved the  SVP Law.



Roger Dale VanDyke was convicted of violating civil commitment by failing to complete sex offender treatment and was sentences to 25 years in prison. While the case was on appeal, Texas amended Tex. Health & Safety Code Ann. sec. 841.085 to prohibit prosecution for failing to complete sex offender treatment. The legislature said that this change covered all failures to complete sex offender treatment past, present, or future, except that a final conviction existing on the effective date of the change would remain unaffected.
Well, VanDyke's case was on appeal on the effective date of the change of law, so he asks, is not my conviction overturned? Chief Justice Steve McKeithen, writing for a panel including Justices Hollis Horton and Leanne Johnson, holds that to the extent that the statute change relieves sentenced convicts, the legislature is violating the separation of powers by taking over an executive function-- the granting of clemency to convicts, so that that part of the law is unconstitutional, and no existing sentences, either final or subject to appeal cannot be can be overturned or reduced by the legislature, but only by executive action, viz. the Texas Board of Pardons and Paroles. In a count of the first 13 years of Perry's governorship, one out of 33 requests for clemency, including pardons, was granted, so good luck with that.



Thursday, February 18, 2016

State Due Process and Due Course of Law Gives Rights in Addition to the Rights in the Tax Code

Charles Kirkwood v. Jefferson County and W. Properties, LLC, No. 09-15-00296-CV, 2016 WL 536852  Feb. 11, 2016 (Tex. App.-- Beaumont) (no pet. h.) (mem. op.) (not designated for publication).
Justice Charles Kreger wrote this opinion for a panel including Chief Justice Steve McKeithen and the hardly ever sleeping daughter of the Diamond State Justice Leanne Johnson.
In June 2010 Jefferson County wins a judgment for unpaid property taxes against Sara Gleason. There's no appellate record as to whether or not the County abstracted the judgment. In August, Gleason sells her property to Charles Kirkwood, who accepts responsibility for the all the delinquent taxes.
W. Properties, LLC buys the property at the March 2013 tax sale. August 2013  W. gave Kirkwood notice to vacate the premises. Kirkwood then filed for bill of a review complaining that he didn't get notice of the sale. April 2014, the trial court pours Kirkwood out. January 2015 Kirkwood moves for new trial-- trial court grants one. County moves to dismiss for lack of standing and jurisdiction-- trial grants both. Kirkwood appeals the dismissal. The Ninth reverses and remands.
The County said it gave all necessary notice-- paper to Gleason, on the courthouse door, on the County’s website, and the occupant of the property. It also said it didn't need to give anybody any stinking notice. That might be true, if all the issues in this case were controlled by the tax code. Kirkwood argues, that he has additional state constitutional rights. Kirkwood says the County knew he owned the property, and took payments from Kirkwood against Gleason's judgment.
A judgment that hurts a party's property interest in which the party doesn't get get notice. should be set aside.
The appellate record lacked evidence that Kirkwood was given nor got notice of the sale, nor does it show that the lack of notice was Kirkwood’s fault. An attorney’s arguments nor the pleadings or motions of a party-- none of them are evidence. Kirkwood had standing.
The county claimed he County’s motion to dismiss for lack of jurisdiction. In its motion, the County claimed sovereign immunity, but, a party may sue the state for equitable relief arising out of the state’s violation of constitutional rights. Kirkwood had jurisdiction.


Sunday, February 14, 2016

What is a "Friend of the Court" Brief?

"Amicus curiae" is the Latin term. "Amicus" means "a friend." English cognates include"amicable" and "amity." "Curiae" means roughly "of a court." English cognates include "curator," a person who judges [as in a court] which items should be in an art gallery or museum. Much has been made in recent news about the "Curia" of the leader of the Roman Catholic Church, the Pope-- the Curia is his court as a king has a court.

More than one friend are "amici." Ordinarily the only people who can participate in a lawsuit are people that either want a court to act in some way or people who oppose a court's action in some way. In a suit over money, the only people who can ordinarily participate are the people who have submitted to the court's jurisdiction who either desire to get money from one or more other parties or who wish to keep their money from the other party.
Generally, particularly in appellate disputes, a court can give permission for one or more additional parties to file briefs in a case or even present oral argument.
Imagine that a dispute about a small amount of money depends on an interpretation of the United States Constitution. The plaintiff: Gimpel the Fool
represented by

Here is the defendant, Gervais Brooke-Hamster
represented by R.L Gumby, Esq., attorney at law.

Now, generally, when appellate courts decide cases, they not only rule on the dispute, but they make a rule to be followed that will be applied in all cases before them thereafter. Appellate justices are hardly ever experts on the distant, long-term effects of their rule-making-- especially as to specific industries, intellectual property or taxes. The court needs help to decide the case rightly, and, more importantly, to make good rules that won't pointlessly screw up the economy.

Shyster and Gumby, though, are clearly not the people for the job.  Commonly lobbyists keep track of the cases appearing before the high courts that could affect their interests, and advise their clients to petition the court for permission to act as amici curiae, and hire first-rate lawyers to add briefs to help explain the context of the dispute. There may even be rare instances in which one or more high court justice might ask a buddy or a well-recognized expert in a field to act as an amicus.

Criticism of amici and their briefs:
  1. Amici often have vested interests and distort the litigation process. Trade associations and other businesses can fairly well count on their interests being considered in litigation, the public not so much.
  2. In states like Texas in which justices are elected, trade associations and other businesses finance the campaigns of candidates who will likely support their interests once the candidates rise to the (higher) bench. Sometimes it seems to me that in such cases, amicus briefs just add insult to injury. This is not so much a problem in courts in which the judges do not face the voters later. Those judges need not fear serious harm for ruling against vested interests. As segregation died, white southerners wanted to impeach Earl Warren. Many federal judges ruled in favor of school integration, improving the conditions of prisons, even requiring that criminal convictions be overturned because peace officers just plainly ignored the civil rights of poor people, racial minorities, and nonconformists.
  3. Sometimes one or more friends of the court will be closely allied to one of the parties and all the folks on one side of a matter, and the party desperately desires to cover more material in its brief than the word count allows. That party and one or more amici will connive so as to spread an overly long argument over all their briefs to beat the page count.

Wednesday, February 10, 2016

A Hard-Working Second-Career Appellate Lawyer and Courtroom Litigator Seeks Place Five


So far we've spoken about three of the Republicans seeking to replace the retiring Cheryl Johnson: Sid Harle, Steve Smith, and Brent Webster, which only leaves Scott Walker.

An honors graduate of Dallas Baptist University and a Baylor law grad., he was admitted to the bar in 1998. A born Texan, he claims that he comes from generations of conservatives, and has been a Republican all of his adult life.
He has had a first career that he doesn't mention in his campaign materials-- he was a swimming pool builder.

Walker describes his practice as one ocivil defense, veterans’ disability, criminal litigation, and appellate advocacy. Walker claims over seventy appellate briefs and more than 40 first-chair trials in district courts across north Texas. He does not appear to have ever been a prosecutor.

Walker's a member of the Texas Bar College, has been married to the same woman for 41 years, and claims to be an evangelical Christian active in a Dallas-area church. He appears to be keeping up a busy practice during his candidacy, snatching spare minutes out of his day for politics. There may be better looking candidates in the race, but I give him the prize for best campaign photograph.

Friday, February 5, 2016

A Man of Many Parts, a Man for All Seasons, Heads to the CCA Hustings.

Richard Davis is the Republican challenging Judge Mike Keasler for Place Six on the Texas Court of Criminal Appeals is Richard Davis who ran for Place Four to succeed Paul Womack two years ago, only to get nosed out by Kevin Yeary. He tells me that he intends to run a more vigorous campaign than he did two years ago and so far has been endorsed by the Houston Police Officers Union. He says that he is a fan of this blog. An easygoing talker, with a sonorous, beautiful speaking voice, he practices general trial and appellate law in Burnet, Texas, near Austin. He has 32 years of experience. Graduating from Baylor law school started practicing law in Brownsville, then Waco, and then in Odessa before moving to the Austin area where he eventually ended up with the Burnet practice he has today. He was a special prosecutor, then acting Sherman County Attorney in Stratford in the panhandle and worked in Odessa in the Ector County District Attorney's office and then later in the County Attorney's office, and had an appointment as a special prosecutor when he was at the County Attorney's office. He has been a contract public defender in Burnet. Along with a Travis County Assistant District Attorney, Davis did a jury selection training for Baylor. He won a "Best Lawyer in Burnet" award in the local paper. He loves to hunt, but doesn't get as much chance to do it as he would like, and is married to a shy woman. He has recent practical experience on both sides of the docket, and, compared to the other Republican candidates is very much in touch with the challenges of small firm lawyers who make up the great bulk of the defense bar.