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

Saturday, January 21, 2017

Former Assistant Attorney General Appointed to Empty Dallas State Appeals Court Seat

Jason Boatwright, a former assistant attorney general who worked closely with Governor Greg Abbott when Abbott was Texas Attorney General, has been named to Dallas's state Fifth Supreme Judicial District Court of Appeals. He replaces David Lewis who resigned in lieu of discipline for alcoholism and other mental health problems. Boatwright was chair of the opinions committee of the AG's office. Texas officials may ask the Attorney General to give legal opinions relating to issues in their work (Since AGs are not judges, they may give advisory opinions,) These opinions do not have force of law as published opinions of a court, but (1) they can be gotten much faster than an appeals court opinion, and (2) it gives legal cover to the requester; it may turn out that a court finds an AG opinion wrong, but following that opinion will innoculate the requester from an accusation of bad faith or criminal intent.

Boatwright's professional history is mostly out of Austin, but he's been practicing a few years in Dallas.

Wednesday, January 4, 2017

How should Texas Constitution, Article I, Section 11b Be Read with Federal Due Process Standard?

Ex parte Heath Shires, No. 02-16-00348-CR, (Dec. 29, 2016), a ruling on a pre-trial writ of habeas corpus by Fort Worth's Second Court of Appeals, seems to me to be a good candidate to get to the Court of Criminal Appeals. The appellate panel is all-female: Justice Lee Ann Dauphinot, Justice Lee Gabriel, and Justice Bonnie Sudderth. Justice Sudderth writes the majority opinion. Justice Dauphinot dissented.
Shires is indicted on four sex offenses against a minor October 14, 2014. Two of his bail conditions are that he is not supposed to drink alcohol nor is he supposed to commit another offense. He is arrested for felony DWI September 4, 2016. Two of his bond conditions are that he is not supposed to drink alcohol and that he is not supposed to drive any vehicle that does not have an alcohol interlock. On September 6, 2016, State says Shires's bond for the four earlier offenses is too low. 
There was a hearing on raising the bond amount on the old charges Sept. 6, 2016. the parties stipulated that Shires had violated the bond conditions, but Shires argued that his bond should not be revoked, but that an alcohol monitor should have been attached to him. He also argued that Tex. Const. art. I, sec 11b, violated the 14th amendment of the U.S. Constitution. The trial court rejected the challenge and allowed the hearing on it to make a record for the habeas writ. 
Shires challenges sec 11b's federal constitutionality as applied to him. The majority rejects Shires's claim that federal precedent required that every trial court to apply a clear and convincing evidence standard, nor requires each trial court to consider
if additional bond conditions may adequately assure the safety of the community
or the victim. 
Justice Dauphinot submitted that 11b had to be applied in light of the federal due process standard, and that the appeals court should have reversed and remanded to the trial court with instructions as to what federal due process precisely required (She appeared to me, to think that Shires, at least in part, had the right idea.
The State has the burden of proving the allegations of its motion. The trial
court must be convinced by the evidence that the State has borne its burden.
The issue is not whether some appellate court can, by speculation and reading
between the lines, cobble together enough possibilities to support the State’s
allegations and to support a determination that the detainee must not be released
under any conditions because no conditions exist that will reasonably protect the
public. The record must reflect evidence from which the trial court can make the
legally mandated determinations, and the trial court must actually make the

necessary determinations.

Justice Dauphinot aged out of her position at the end of 2016 and has had to retire. I can't really imagine her getting that old; she always seemed to me to be younger in spirit than people many years her junior. For what it's worth, I liked her and am going to miss her.