Hello! I Must Be Going!

It's been a good run, but I do not expect there to be new content here anymore. I am not quitting. I'll just now be doing my blawging from my law firm web page: https://www.mabryappealslaw.com/blog/ I presently expect to keep it up to preserve old content and links. Thank you all for your support.

Commercial Lease Breach Allows Termination and Texas Supremes Want More Detail to Support Attorney Fee Awards

Water seeps up through dialysis clinic's floor. Clinic's repair attempts stop helping. Clinic terminates lease early, moves, and leaves some rent unpaid. Clinic sues the landlord for breach of contract, breach of the implied warranty of suitability for use as a clinic, for a declaratory judgment that a casualty occurred in relation to the lease, that the landlord didn't fix it, and that the clinic had the right to terminate the lease. The landlord put forth affirmative defenses including waiver and prior material breach and counterclaimed for negligence and breach of contract. The clinic asserted its own affirmative defenses to the counterclaims.
The jury found that neither party had complied with the lease, that the landlord had breached first, and that the landlord had breached the implied warranty of suitability. Though the clinic had originally sought money, it did not ask the jury for a money verdict and so didn't get one. The trial judge ruled that the clinic had the right to terminate the lease.
The lease provided that in case of a lawsuit that the prevailing party would get reasonable and necessary attorneys' fees from the non-prevailing party. The clinic's lawyer testified that he had 20 years of litigation experience, that his standard rate was $450 per hour, that he had handled cases similar to this before, that a reasonable and necessary number of hours for a case like this would be between 750 and 1,000 hours, which made for a fee between 300 and 400 thousand dollars, but that this particular case cost more. More like $800,000, because his side had had to search through "millions" of emails and review "hundred of thousands" of documents during discovery, that more than 40 depositions were taken, and that there had been a 40-page motion for summary judgment. He said his opinion was based on the amount at issue, the case's complexity, and his knowledge and experience. The clinic got $800,000 for attorneys' fees at trial and additional conditional awards on appeal.
The landlord appealed. The Dallas court of appeals held that the landlord had waived error as to the trial court's allowance of termination of the lease.
In a unanimous opinion written by Justice Paul W. Green, the Supreme Court of Texas ruled that although the landlord had properly objected to allowing the lease termination, on the merits, termination of a lease was allowable in a case like this. It also ruled that although the clinic might not have been the prevailing party as a plaintiff in the case, because it didn't get any damages from its claim as a plaintiff under the lease-- it got no money, it was prevailing party as a defendant against the landlord's claims. However, the Supremes reversed and remanded the attorneys' fee award on the ground that the testimony in the case was insufficient. It was similar to the lodestar method of determining the attorneys' fees in the case but was not detailed enough to meet that method.
Hat tip to Houston civil appellate attorney Scott Rothenberg.
Rohrmoos Venture v. UTSW DVA Healthcare, No. 16-006 (Tex. Apr. 26, 2019).

Badass Brett Busby Comes to the Supreme Court of Texas

Governor Greg Abbott appointed Houston Fourteenth Court of Appeals Justice Brett Busby in February 2019, and Busby was confirmed by the Texas Senate in March 2019. He had had about six years of experience on the Houston bench. He is presently the Chair of the State Bar of Texas Appellate Section and was formerly an adjunct professor at the University of Texas Law School, where he taught the U.S. Supreme Court Litigation Clinic.

Justice Busby clerked at the U.S. Supreme Court for Justice John Paul Stevens and also for retired Justice Byron R. White. He argued one case and briefed many others before the U.S. Supremes.. He also handled dozens of  Supreme Court of Texas appeals and the federal and Texas appellate courts while in private practice. He is Board Certified in Civil Appellate Law. He also clerked for Judge Gerald Bard Tjoflat of U.S. Court of Appeals for the Eleventh Circuit.

He grew up in Amarillo and Austin. He graduated with high honors from Duke University and Columbia Law School. 

He has chaired the Texas Access to Justice Commission’s Rules and Legislation Committee and also served on the Texas Supreme Court Advisory Committee. He also has been Chair of the State Bar Committee on Pattern Jury Charges for th Business, Consumer, Insurance, and Employment Volume. He is an elected member of the American Law Institute and writes and speaks frequently at continuing legal education conferences.

A life-long violinist, he is a member of the Houston Symphony Board. He is chair of its Artistic Affairs Committee and he previously chaired the Music Director Selection Committee. He plays in the first violin section of the Houston Civic Symphony and has served on the boards of the Post Oak School and the Foundation for Jones Hall.

Justice Busby is married. His wife is named Erin. He met her while clerking at the U.S. Supreme Court. They have two children.

Finality in Federal District Judgments for Purposes of Appeal: the General Rule

Federal courts of appeals have jurisdiction of final U.S. district court judgments except where a decision may be directly reviewed by the Supreme Court of the United States.  SCOTUS said, in Hall v. Hall, No. 16-1150, Mar. 27, 2018, which I have cleaned up: "A final decision ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. The archetypal final decision is one that triggers the entry of judgment. Appeal from such a final decision is a matter of right. Under §1291, any litigant armed with a final judgment from a lower federal court is entitled to take an appeal, which generally must be filed within 30 days."

Former Justice of the Thirteenth Court of Appeals Greg Perkes Appointed to Chief Justice Dori Contreras's Old Seat There

Greg Perkes who had been on Texas's Thirteenth Court of Appeals from 2011 to 2016 was appointed Monday to fill the seat of Dori Contreras who had been raised from there by her election as Chief Justice. Justice Perkes will sit with the Edinburg panel- a red spot in the blue, blue expanses of the 20 counties of the Thirteenth Supreme Judicial District. Contreras had a year left on her old term. Love the tie.

Counting Days in the State Appellate Courts of the Lone Star State

In Texas state appellate law, you calculate deadlines by counting the first day after a triggering event happens up until the last day of a period that is not a holiday, a Saturday or a Sunday. For example, the deadline to file a notice of appeal of a final criminal trial court judgment signed Wednesday, January 2, 2019, in which no motion for new trial nor motion in arrest of judgment was filed would be Friday, February 1, 2019. The time to file an appeal in such a case would be 30 days. The first day of the thirty would be Thursday, January 3, 2019, and the 30th day would be Friday, February 1, 2019. Barring a technical efiling problem, the notice would be late on or after midnight Saturday, February 2, 2019.

Let's try the hypothetical again, only this time let's have the judgment be signed Thursday, January 3. The first day to count would be Friday, January 4 and the 30th day would now be Saturday, February 2, 2019. Since the 30th day is now a Saturday, the period does not end but would go on to the next day which would be Sunday, February 3, 2019, which does not end the period and the deadline is moved yet one more day to Monday, February 4, 2019. Again, barring a technical efiling problem, the notice would be late on or after midnight Tuesday, February 5, 2019.

For a third time, the judgment is signed in Montgomery County on Thursday, January 17, 2019. The first day is Friday, January 19, 2019. The 30th day is Saturday, February 16, 2019- no good. The next day Sunday the 17th is no better. In this case, though, Monday the 18th is President's Day, a holiday in Jefferson County where the appropriate court of appeals sits, Beaumont's Ninth Court of Appeals. So it is no good either and the last day for filing the notice of appeal is Tuesday, February 19, 2019. Efiling willing, the notice would be late Wednesday, February 20, 2019, at or after midnight. Texas state appeals courts are pretty good about announcing their holidays. If the appellate court has not indicated on its web page whether or not a day is a holiday a good practical rule is that courts of appeals follow the holidays of the county in which they usually sit, and the highest state courts follow the state government holiday schedule. Parties with their backs against the wall may try to get, say, a state holiday counted when an appeals court was open. I shudder to think what would happen if the holidays of Nueces County, one home of the Thirteenth Court of Appeals, did not match with the holidays of Hidalgo County, the other home of the Thirteenth. Those are the nightmares of appellate nerds.

In Texas, Sometimes the Cops Can Hunt You Down with Your Cell Phone without a Warrant.

The Texas Court of Criminal Appeals in a unanimous opinion written by Judge Barbara Hervey held that evidence suppression is not a remedy for a violation of the federal Stored Communications Act or Texas Code of Criminal Procedure Art. 18.21 notwithstanding Texas Code of Criminal Procedure Art. 38.23, and, additionally, that no warrant is required to access a limited amount of real-time cell-site information from a defendant's wireless carrier.
Christian Vernon Sims, pictured above courtesy of The Paris News, was a suspect in his grandmother's murder. The grandmother's credit card had been used 80 miles north of the crime scene. A sheriff's deputy who was the investigating officer in the shooting returned to his office to seek a warrant for the cell phone information. It was a Thursday; it was before the close of business hours. A sheriff's deputy requested that Sims's phone be pinged without a warrant on an emergency basis. That deputy reported that 20 minutes passed before he got real-time information as to where Sims's phone was. The sheriff's office figured out what road Sims was taking, and local police forces along that road narrowed down where he was to a motel where he was arrested without incident. He moved to have the phone information suppressed, which the trial court denied, and he ended up pleading to a 35-year sentence, but with the right to carry the motion to suppress up on appeal. The Sixth Court of Appeals in Texarkana affirmed, and the Court of Criminal Appeals granted a petition for discretionary review.
The federal Stored Communications Act provides that its civil remedies are the only sanctions for a nonconstitutional violation of it. Neither the COA opinion nor the CCA opinion note that under Article Six, paragraph two of the United States Constitution, federal law trumps any state law at all-- even a state's constitution. So suppression on the basis of the Stored Communications Act was always a nonstarter.
The Court of Criminal Appeals ruled that Article 18.21 was made law after Article 38.23 and, so, supersedes it. Article 18.21 has been moved to chapter 18B of the Code of Criminal Procedure. This case was, of course, under the old law.
Though the United States Supreme Court case of Carpenter v. United States found that Carpenter's Fourth Amendment rights had been violated by the United States by its looking at 12,898 location points cataloging Carpenter’s movements over 127 days—an average of 101 data points per day without a warrant based on probable cause. It said its ruling had nothing to do real-time information as in Sims's case and opines that exigent circumstances might arise in the case of a fleeing suspect as here. The CCA held, therefore, that Sims's case was not on all fours with Carpenter.
This case was wrongly decided. There was not any exigency excusing the lack of a warrant. The suspect was already at least 80 miles away. He was 16 years old and had killed his grandmother-- no reason to think that he was a great danger to others. He was driving in a car and was going to have to sleep. The record is clear that law enforcement could have a gotten a warrant. The court just did not want to rule in favor of a granny-killer.
To be fair to my friends in law enforcement, any prudent Texas agency is going to implement procedures to get a warrant in situations like this. It is a best practice and keeps the appellate prosecutors from having to go one or more extra rounds in a future case. 

Appealing from Some of Texas's Lowest Trial Courts- Justice Courts

The number of justices of the peace in the 254 counties of Texas varies greatly. 134-souled Loving County has only one. Justices of the Peace need not be attorneys. The largest county, Harris County, with county seat Houston, has eight justice of the peace precincts with two justices for each precinct. The Texas Constitution grants justice courts original jurisdiction of the trial of fine-only criminal offenses and exclusive jurisdiction of civil matters in which the amount in controversy is less than $200 and whatever other jurisdiction is additionally granted by law.

The highest elected official in any Texas county is the county judge. Early in Texas history, a county judge was a person of all work who presided over the work of a commissioners' court of four elected officials-- commissioners-- each of whom was responsible for a quarter of the county's land area. The judge and the commissioners managed the county's finances together, and additionally, a county judge presided over a county trial court ruling on misdemeanors, small civil matters, and probate matters. Now County Judges in large counties do not hold that latter court, but delegate that work to one or more county-courts-at-law created by the legislature. Additionally, large counties have dedicated probate courts, created by the legislature.   Whether or not a county judge holds a law court, such a judge, like a justice of the peace, need not be an attorney. County-court-at-law and probate judges do have to be attorneys as district court judges must.

"Bob, this is all fascinating, but what does it have to do with appellate law?" With a few exceptions-- always read the statute creating the court you are appearing in-- the rule about appealing judgments in these courts is that you have a right to a de novo trial in a court presided over by a lawyer judge. Usually, you go from a justice court to a county-court-at-law. You post a bond a day or less after the justice court proceeding and you get a de novo trial-- a trial "of newness"-- a do-over, the only disadvantage that the loser of the first trial bears is that the appeal bond will pay off the winner below if the bond filer loses. In civil matters, the judgment of the trial de novo can often be appealed to a court of appeals like any other civil case heard by the county-court-at-law. In a criminal matter, only federal or state constitutional matters may be taken up to a court of appeals.

In Plea Bargaining Down to a Lesser Included Offense, Does a Defendant Waive Absolutely All Possible Punishment Error of Any Kind?

A Texas state prosecutor charges a defendant with specific crimes which have certain punishments associated with them. The most common type of plea bargaining is for the State to try to get the defendant to agree to the most punishment possible and for the defendant to try to get the State to agree to the least punishment possible. When the two parties agree as to such a matter and they can get the judge to approve it, then the defendant is stuck with having pleaded guilty and that State is stuck with a particular minimum punishment, and neither side can appeal.
But, as Texas Ninth Court of Appeals Justice Leanne Johnson writes for a panel including Chief Justice Steve McKeithen and Justice Hollis Horton, there is another type of plea bargaining which can be done along with or instead of the other type, which is plea bargaining about which crime should be charged.  Roberto Ishmael Alvarado was charged with capital murder but reached a plea bargain agreement with the Liberty County District Attorney's Office to only be charged with the lesser-included offense of murder. At that time in the process, the trial judge ruled that Alvarado did not have a right to appeal. This makes sense; the part of the process that determined what crime, if any, Alvarado had committed had been determined by an ordinarily unappealable plea bargain. Texas criminal cases have two parts, though, (1) guilt-innocence and (2) punishment. The State and Alvarado did not agree as to what the punishment should be, and the State allowed Alvarado to go to trial under the lesser-included offense only. The Liberty trial jury popped Alvarado hard-- a 60-year sentence plus a $10,000 fine. The trial judge noted in the sentencing paperwork that the sentence was not entered into pursuant to a plea bargain-- Alvarado had gone to trial so that he, Alvarado, had a right to appeal his punishment. The Nines said here that the trial judge was wrong as to the punishment. Alvarado's plea bargain as to the charge had the effect, they said of limiting his punishment so that the punishment determination had also been reached pursuant to a plea bargain, so that Alvarado, in fact, had no right to appeal.
When a defendant pleads guilty to an offense as part of a plea bargain, that defendant cannot appeal that the defendant is not guilty of that offense, and bears the risk of being mistaken as to culpability for that particular offense. When a defendant agrees to accept a particular punishment, a defendant bears the risk that the prosecutor or the trial judge might make a reversible error in the punishment phase of his or her trial. The prosecutor or the trial judge might have made such a mistake, but the defendant gives up the right to be tried and to find out if reversible error manifests itself.
Even if the defendant agrees to plead guilty to a lesser offense, the State can still prevent the defendant from waiving jury trial as to that lesser offense. Plea bargains are governed in part by the law of contracts. The course of dealing of the parties indicates that the State and the trial judge accepted that the defendant, in trading his right to contest guilt-innocence as to a lesser offense for not having to defend the greater charge, had not agreed to accept maximum punishment as to that lesser offense. There does not appear to be any legal nor policy reason for the court of appeals not to get to the merits of the unbargained-for part of the case. If the Court of Appeals does not think better of this decision on reconsideration, it should be taken up to the Court of Criminal Appeals to see if prosecutors and trial courts don't have the power to make deals like this.

What Can Po' Folk Do about Court Costs and Record Costs on Appeal in Texas State Courts?

Here I'm talking about appeals, not applications for extraordinary writs. Court costs here are filing fees (Some other things are counted by trial courts as court costs, but they generally don't affect the ordinary appeals of poor people.). An appeal is generally decided on the basis of a clerk's record and a reporter's (or recorder's) record. A clerk's record used to be called a transcript in Texas practice and a reporter's record, a statement of facts; you might still hear these terms today, and it helps to know these terms when you're reading old law. A court clerk's job is to keep track of the documents filed, orders entered, and docket entries made in the trial court (These days, they're practically always e-documents.), and, when asked and when paid the fees allowed by law, to prepare an electronic record of them for the use of the parties and the appellate court on appeal. The reporter (practically always using machine shorthand) or recorder (practically always using a special audio recorder) practically always takes down jury selection, opening statements, witness testimony and trial arguments for a record for the appeals court and is also the steward of the trial exhibits.
Indigents, that is, people who cannot afford to pay costs, can ask to be excused from filing fees in trial court and if the trial court agrees that a person was and is indigent at the time rendering civil judgment, those fees will be excused, and if they were excused at trial, unless there is some evidence that the poor person's status has changed, they will be excused from filing fees on appeal. In criminal cases, a defendant can be found indigent at the beginning of the trial proceedings, and, in the absence of new evidence, that finding will hold even through appellate proceedings. Criminal defendants and sexually-violent-predator respondents who are indigent have a right to be represented by lawyers and to get the clerk's record and the reporter's or recorder's record at no expense to them at trial and on initial appeal. Indigent people who may lose their parental rights have a right to appointed counsel and reporter's record on initial appeal.
There are generally not statutes nor rules for appellate indigency record relief for other kinds of prospective appellants in Texas state courts.

Former Longtime Midland City Attorney Keith Stretcher Appointed to Eastland 11th Court of Appeals

Governor Greg Abbott appointed former longtime Midland City Attorney Keith Stretcher to Eastland Texas's Eleventh Court of Appeals yesterday, filling the vacancy created when the governor elevated Justice John M. Bailey to Chief Justice last September.

Stretcher likely got visibility in Austin by having been a President of the Texas City Attorneys Association.

Bailey was the Chief-Justice-designate after getting the Republican nomination last March-- no one ran against him-- and thereby becoming the last candidate standing for the post. Bailey replaced retiring Chief Justice Jim Wright.

Stretcher joins the Eagle-Scout, former-collegiate-gymnast, decorated-military-veteran, award-winning scholar Associate Justice Mike Willson as the second Midlander on the three-justice court. The Eleventh Supreme Judicial District covers 28 counties. On the map above it is the beige one directly under the panhandle. The Eleventh Court of Appeals sits in the tiny town of Eastland in tiny Eastland County very close to the east end of the SJD. Eastland is a remote exurb of Abilene, which is the county seat of Taylor County, the third-largest county of the SJD. The largest county of the SJD is Ector County which is in the southwestern corner, county seat: Odessa. The second-largest is Midland County, county seat: Midland. These two counties, along with Martin County, form the Midland-Odessa metropolitan area, which has the damnably cute slogan "Two Cities, no Limits," and which is in turn where the Permian Basin geological formation is. Midland-Odessa is where the votes are, so it is from where most of the justices come. Chief Justice Bailey lives in Cisco, near Eastland.

Still, why Midland instead of Odessa? The reason likely goes back to when the oil was discovered. The Ector County Commissioners built roads to the oilfields, which made it a more convenient place for roughnecks-- that's the name of a kind of worker-- while Midland had an office building and a hotel. To this day, Midland is comparatively more white-collar than Odessa.

Appeal from metro Abilene or metro Midland-Odessa or the deserts in between and you'll be before three old white Republican guys . . .

Habeas Corpus in Federal District Court

What do you have to do to get to apply for a writ of habeas corpus in a federal district court for a wrongful conviction? I'm going to be outlining the answer here instead of going into precise detail because a detailed answer would turn this blog post into a law review article or even a book. The answer is different depending on whether or not the wrongful conviction that you are seeking relief from is a state or federal conviction. If it is a federal conviction, you must exhaust your rights to appeal, and apply for your writ before a year of time has passed consisting of all the days that the conviction was final. This one-year period comes from the Anti-Terrorism and Effective Death Penalty Act. If it is a state court wrongful conviction you have to exhaust your state appeals, if any, and your state applications for a writ of habeas corpus, again before there have been 365 days of judgment-finality. The 28th volume of the United States Code chapter 153 has the federal habeas corpus statutes, and there are, additionally, special rules for these proceedings, which can be downloaded here.
As compared to the vast majority of state courts, federal courts are preferable for applicants because federal judges serve for life on good behavior and have other protections for their independence, where state court judges by virtue of their limited terms are creatures of politics. In many places, including Texas, they must seek their benches as partisan political candidates. It is far more common for a judge to lose a bench by being too even-handed between the State and the defense than to lose their benches by being too hard on crime-- making them favorable to the prosecution. A federal judge who angers the electorate keeps the bench and the pay for life.

Asking a Question Does Not Make You Agree to an Adverse Answer.

Texas Supreme Court Justice Phil Johnson

Mr. Ali wants to buy a business from Mr. Musallam. They negotiate and they make an appointment to finish the deal. When the time comes Musallam does not want to sell. Ali sues. Musallam says that he owes nothing because they had not finished reaching an agreement. The case is tried to a jury. Musallam requests a charge question as to whether or not the two men had a deal. The jury finds for Ali. After the verdict, Musallam makes two complaints to the trial court:

1. that the jury finding was immaterial, and
2. that the jury finding was supported by insufficient evidence.

Immaterial, what does that mean? It means that there are many reasons that one person might be legally bound to owe money to another person. The money might be owed for some other reason than that there was a breach of contract-- detrimental reliance for one.

In Fort Worth's State Court of Appeals, Justice Lee Gabriel wrote an opinion for a panel including now former Chief Justice Terri Livingston and Justice Mark T. Pittman, denying Musallam relief because he could not complain that a jury question that he asked for was not material and for which there was insufficient evidence. Musallam petitioned the Texas Supreme Court to review the case. They agreed, and Supreme Court Justice Phil Johnson wrote for a unanimous SCOTX that Musallam had not waived his alleged error and that the case should be remanded to Fort Worth to be considered on the merits. The Supremes said that if someone seeks a jury question, it does not follow that one is agreeing to be bound by any answer that may be made to that question and that one is not vouching for the sufficiency of the evidence in favor of an adverse ruling.

Texas Supreme Court Justices are not created equal, but Phil Johnson, whose resignation took effect yesterday appeared to me to be one of the good ones. He appeared to call balls and strikes and not to have any dark nor ignorant agenda. I include video from his last oral argument, which choked me up. So long, Justice Johnson. Thank you for all your public service.

https://pbvideo.vids.io/videos/d49ddebc1710ecc15c/justice-phil-johnson-retires-from-the-supreme-court-of-texas

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.

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.

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.

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.

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 

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. State, 485 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.