Monthly archive

September 2015

September 2015 SDR – Voice for the Defense Vol. 44, No. 7

Voice for the Defense Volume 44, No. 7 Edition

Editors: Tim Crooks, Kathleen Nacozy

Supreme Court

D’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under 8 U.S.C. § 1227(a)(2)(B)(i). Mellouli v. Lynch, 135 S. Ct. 1980 (2015), stay granted, No. 15A137 (U.S. Aug 21, 2015).

        Petitioner, a lawful permanent resident, pleaded guilty to misdemeanor possession of drug paraphernalia “to . . . store [or] conceal . . . a controlled substance.” Kan. Stat. § 21-5709(b)(2). The sole “paraphernalia” D was charged with possessing was a sock in which he had placed four unidentified orange tablets. Citing D’s misdemeanor conviction, an immigration judge ordered him deported under 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes the deportation of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” Section 802 limits “controlled substance” to a “drug or other substance” included in one of five federal schedules. Kansas defines “controlled substance” as any drug included on its own schedules, without reference to § 802. Kan. Stat. § 21-5701(a). At the time of D’s conviction, Kansas’ schedules included at least nine substances not on the federal lists. The Board of Immigration Appeals affirmed D’s deportation order, and the Eighth Circuit denied review. The Supreme Court reversed the Eighth Circuit.

        An alien’s state conviction for possessing drug paraphernalia by concealing unidentified pills in a sock did not trigger removal of the alien under 8 U.S.C. § 1227(a)(2)(B)(i) as a conviction relating to a controlled substance listed on the federal schedules, since the state list of controlled substances contained substances not listed in the federal schedules and thus the substance concealed in the alien’s sock was not necessarily a controlled substance under federal law. In evaluating removal based on the conviction rather than the alien’s conduct, there was no basis for distinguishing drug possession and distribution offenses from drug paraphernalia offenses to eliminate the need for a direct link between the alien’s crime of conviction and a particular federally controlled drug.

A naturalized U.S. citizen had no protected liberty interest in her marriage that entitled her to seek judicial review of a consular officer’s decision denying her husband’s application for a visa. Kerry v. Din, 135 S. Ct. 2128 (2015).

        Fauzia Din petitioned to have her husband, Kanishka Berashk, a resident citizen of Afghanistan and former civil servant in the Taliban regime, classified as an “immediate relative” entitled to priority immigration status. Din’s petition was approved, but Berashk’s visa application was ultimately denied. A consular officer informed Berashk that he was inadmissible under 8 U.S.C. § 1182(a)(3)(B), which excludes aliens who have engaged in “[t]errorist activities,” but the officer provided no further information. Unable to obtain a more detailed explanation, Din filed suit in federal district court, which dismissed her complaint. The Ninth Circuit reversed, holding that Din had a protected liberty interest in her marriage that entitled her to review of the denial of Berashk’s visa. It further held that the Government deprived her of that liberty interest without due process when it denied Berashk’s visa application without providing a more detailed explanation. The Supreme Court vacated the Ninth Circuit and remanded.

        Under a historical understanding of the U.S. Const. amend. V Due Process Clause, the citizen could not claim that the denial of her husband’s application for a visa deprived her of life, liberty, or property (three Justices), or there was no need to decide whether the U.S. citizen had a protected liberty interest because the notice she received satisfied due process (two Justices).

Fifth Circuit

D’s sentence was proper; judicial fact-findings that increase the discretionary sentencing range need not be treated as elements (i.e., charged in an indictment and proved beyond a reasonable doubt). United States v. Hinojosa, 749 F.3d 407 (5th Cir. 2014).

        Where D pleaded guilty to possession of marijuana with intent to distribute, his sentence did not run afoul of Alleyne v. United States, 133 S. Ct. 2151 (2013). Alleyne held only that facts increasing a statutory minimum sentence must be treated as elements; Alleyne did not apply to judicial finding of facts that increase the discretionary sentencing range under the advisory U.S. Sentencing Guidelines. Here, there was no indication that D’s statutory minimum punishment was increased as the result of judicial fact-finding forbidden by Alleyne.

        (2) The Government did not breach its plea agreement with D by advocating for inclusion of drug quantities as “relevant conduct” under the Guidelines where the plea agreement contained neither a reference to drug quantity nor a promise not to advocate for the inclusion of relevant conduct. D’s plea to a count charging a specific amount of marijuana did not constitute an implicit promise by the Government not to advocate for a greater amount. Furthermore, even if the Government breached the plea agreement by arguing against a reduction for acceptance of responsibility under USSG § 3E1.1, D could not show an effect on his substantial rights, as required under plain-error review, because the record showed it was highly un­likely that the court would have granted D the two-level re­duc­tion even in the absence of a Government breach.

        (3) The district court did not err in assessing certain drug quantities as “relevant conduct” under the Guidelines; or, if there was error, it was harmless because the drug quantity in question did not change the Guideline range. Finally, the court did not err in applying a two-level enhancement for obstruction of justice under USSG § 3C1.1; an obstructive act need only materially affect an investigation when it is done con­temporaneously with the defendant’s arrest. Here, the allegedly obstructive act (a phone call to D’s sister telling her to remind a co-defendant about an agreed-upon story) did not occur contemporaneously with his arrest. The obstruction enhancement might also have been supported by D’s pre-plea letter to the district judge, in which D denied guilt (falsely, as he later admitted).

District court reversibly erred in denying D an additional one-level reduction for acceptance of responsibility under USSG § 3E1.1(b) where the Government’s refusal to move for the § 3E1.1(b) reduction was based on D’s refusal to waive his right to appeal. United States v. Villegas Palacios, 756 F.3d 325 (5th Cir. 2014).

        Under Amendment 775 to the Sentencing Guidelines, this was an improper basis to withhold the motion. Even though D was sentenced before Amendment 775 took effect (on November 1, 2013), D was entitled to the benefit of Amendment 775. To the extent United States v. Newson, 515 F.3d 374 (5th Cir. 2008), might counsel a different result, it was, with the assent of all the active judges of the Fifth Circuit, held to be abrogated by Amendment 775. Accordingly, the Fifth Circuit remanded for resentencing.

For purposes of USSG § 2L1.2, aggravated battery did not categorically have as an element the use, attempted use, or threatened use of physical force because the offense may be committed by administering poison, which did not necessarily entail the use of destructive or violent physical force; here, however, the modified categorical approach could properly exclude the possibility of a violation by administering poison. United States v. Herrera-Alvarez, 753 F.3d 132 (5th Cir. 2014).

        The Louisiana crime of aggravated battery under La. Rev. Stat. § 14:34, as narrowed by the modified categorical approach to exclude poisoning, was a “crime of violence” under USSG § 2L1.2 because it necessarily contained, as an element, the use, attempted use, or threatened use of physical force.

Where D was indicted in Texas state court for burglary of a habitation under both Tex. Penal Code § 30.02(a)(1) (which qualifies as a crime of violence under USSG § 2L1.2) and § 30.02(a)(3) (which does not), and where D in the judicial confession accompanying his plea ad­mitted that he had committed every act charged in the indictment, this was sufficient to show that D was convicted of violating both offenses. United States v. Conde-Castañeda, 753 F.3d 172 (5th Cir. 2014).

        The district court therefore did not err in applying the 16-level “crime of violence” enhancement. To the extent United States v. Espinoza, 733 F.3d 568 (5th Cir. 2013), might support a different result, Espinoza conflicted with the earlier decision in United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008); thus Espinoza had to give way to Garcia-Arellano.

Officer lacked reasonable suspicion that D was engaged in criminal activity based on the facts that D and his girlfriend were sitting in a car in an apartment parking lot around 11 p.m. in a high-crime area and, upon seeing police, the girlfriend got out and walked briskly away. United States v. Hill, 752 F.3d 1029 (5th Cir. 2014).

        Police officer did not have reasonable suspicion, based on articulable facts, under the totality of relevant circumstances (D and his girlfriend sitting in a car in an apartment parking lot around 11 p.m. on a Saturday; upon seeing police, girlfriend got out of car and walked briskly away; alleged high-crime area). Therefore, the seizure and frisk of D, leading to the discovery of a gun (for which he was prosecuted for being a felon in possession), violated the Fourth Amendment. The Fifth Circuit reversed the district court’s denial of D’s motion to suppress, and vacated the conviction and sentence.

D’s appellate challenge to his restitution order was barred by the appeal-waiver provision of his plea agreement, which was knowing and voluntary. United States v. Keele, 755 F.3d 752 (5th Cir. 2014).

        The Fifth Circuit noted that an appeal waiver would not bar a properly raised argument that the restitution order exceeded the statutory maximum, but that D made no such argument. The appeal waiver also barred D’s appellate challenge that his restitution order violated the Eighth Amendment. Because the appeal waiver barred all D’s appellate challenges, the Fifth Circuit dismissed the appeal.

District court did not err in refusing to group, pursuant to USSG § 3D1.2, D’s convictions for being found unlawfully present in the United States after deportation (8 U.S.C. § 1326(a) and (b)(1)) and for possession of a firearm by an alien unlawfully present in the United States (18 U.S.C. §§ 922(g)(5) and 924(a)(2)). United States v. McLauling, 753 F.3d 557 (5th Cir. 2014).

        The two offenses did not “involve[e] substantially the same harm” because they harm different societal interests. Nor were the two offenses “groupable” under USSG § 3D1.2(a) because they did not involve the same victim as required by that Guideline. According to the Guideline commentary, for crimes with no identifiable victims where the victim is society at large, the victim is deemed to be the “societal interest that is harmed,” § 3D1.2, comment n.2.

D’s prior conviction under the first paragraph of Va. Code § 18.2-63 (for carnal knowledge of a 13- or 14-year-old without use of force) was the aggravated felony “sexual abuse of a minor.” Contreras v. Holder, 754 F.3d 286 (5th Cir. 2014).

        The Fifth Circuit pretermitted the question of whether Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984), deference was owed to the interpretation of the Board of Immigration Appeals’ definition of the term “sexual abuse of a minor” in 8 U.S.C. § 1101(a)(43)(A) and used its differing definition.

At D’s trial for possession of cocaine with intent to dis­tribute, district court did not err, much less plainly err, in admitting agent’s testimony; contrary to D’s argument, the testimony was not improper drug courier pro­file evidence. United States v. Medeles-Cab, 754 F.3d 316 (5th Cir. 2014).

        Inadmissible drug courier profile testimony involves an agent drawing a direct connection between a drug courier characteristic(s) and the defendant to establish the defendant’s guilt. If, however, the agent merely testifies to certain characteristics of drug trafficking, without drawing the connection, the testimony is generally admissible. Here, the agent’s testimony fit comfortably within that category of permissible testimony that includes explanations of conduct or methods of operation unique to the drug business.

District court did not err in applying a 12-level “crime of violence” enhancement to D under USSG § 2L1.2 based on his Florida conviction for attempted aggravated battery on a law enforcement officer with a law enforcement officer’s firearm. United States v. Garcia-Figueroa, 753 F.3d 179 (5th Cir. 2014).

        D’s 1991 Florida conviction, in violation of Fla. Stat. §§ 784.07, 777.04, and 775.0875, qualified as a crime of violence because the object offense of aggravated battery had as an element the use, attempted use, or threatened use of physical force against the person of another, and Florida attempt was within the generic meaning of “attempt[t]” under Application Note 5 to USSG § 2L1.2.

        (2) Where D was convicted of conspiracy to bring illegal aliens into the United States (Count 1), bringing illegal aliens into the United States (Count 2), and being unlawfully present in the United States following a prior deportation (Count 3), the district court reversibly erred in failing to group Count 3 with Counts 1 and 2 for purposes of calculating D’s Guideline range. All three counts had the same victim—namely, society in general—and thus should have been grouped under USSG § 3D1.2. The error was not harmless; the Fifth Circuit vacated D’s sentence and remanded.

Court of Criminal Appeals

For double-jeopardy purposes, Tex. Penal Code § 49.07 intoxication assault and Tex. Penal Code §§ 49.04 and 49.09 felony DWI were not the same when based on the same conduct. Ex parte Benson, 459 S.W.3d 67 (Tex.Crim.App. 2015).

        D was convicted of intoxication assault and felony driving while intoxicated. These convictions arose from the same incident, a traffic accident in which someone suffered serious bodily injury. The felony DWI count was based on the fact that D had two prior DWI convictions. D filed a habeas application alleging, among other things, that conviction for both intoxication assault and felony DWI violated his double-jeopardy right to be free from multiple punishments. CCA set the application on the double-jeopardy claim, ordered briefing, and denied habeas relief.

        “The offenses at issue are in the same chapter, are similarly named, and have the same punishment ranges. Those factors weigh in applicant’s favor, but none are particularly weighty. . . . The prior convictions are currently considered elements of the offense of felony DWI. The status of the prior convictions as ‘elements’ has significant procedural and substantive consequences. The legislature could easily have crafted ‘serious bodily injury’ and ‘prior convictions’ as statutory alternatives but did not. Felony DWI and intoxication assault do not have the same type of focus, much less the same actual focus or gravamen, and the offenses do not have the same unit of prosecution. . . . Even if an analysis of the Ervin [v. State, 991 S.W.2d 804 (Tex.Crim.App. 1999),] factors were inconclusive, applicant’s double-jeopardy claim would fail, because the presumption established by the offenses having different elements under the Blockburger [v. United States, 284 U.S. 299 (1932),] analysis would remain unrebutted. . . . [O]ne cannot say that the legislature clearly intended only one punishment for the offenses of felony DWI and intoxication assault.”

Third-degree felony family-violence assault under Tex. Penal Code § 22.01(b)(2)(B) was a result-of-conduct offense only; the gravamen of the offense was conduct that caused bodily injury, and the trial court did not err by limiting the definitions of applicable mental states in the jury charge. Price v. State, 457 S.W.3d 437 (Tex.Crim.App. 2015).

        A jury convicted D of third-degree-felony family-violence assault by strangulation. D pled true to the enhancement and habitual allegations, and the court sentenced him to 50 years’ imprisonment. D appealed, among other grounds, that third-degree-felony family-violence assault is both result-oriented and conduct-oriented, and that the court erred by failing to in­clude language tying the culpable mental state to the nature of the conduct. D asserted that the statute’s language, “by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth,” describes an element of the offense and that this element describes the nature of the conduct. COA affirmed the trial court.

        CCA affirmed COA, holding that domestic violence is a result-of-conduct offense only. “The instruction would have been erroneous only if the charged offense had multiple gravamina and the gravamina included both result of conduct and nature of conduct. But the gravamen of the charged offense, third-degree-felony family-violence assault, is conduct that ‘causes bodily injury.’”

COA erred in setting aside three of D’s convictions; Texas law recognized a closely-related-crimes exception to strict application of the corpus delicti rule when the temporal relationship between the offenses was sufficiently proximate that introduction of an extrajudicial confession did not violate the corpus delicti rule. Miller v. State, 457 S.W.3d 919 (Tex.Crim.App. 2015).

        A police detective was assigned to investigate a report from Child Protective Services that D had engaged in sexual conduct with his three-month-old daughter. The detective first asked D to voluntarily discuss the allegations. D agreed, met the detective, and gave two confessions (the first verbal and the second written): He admitted to molesting his daughter on at least three different occasions, including once in her nursery and twice in his bedroom. Days later, D called the detective and said he remembered a fourth incident; D returned to the police station and confessed verbally and in writing that he had also made contact between his sex organ and his daughter’s and took a picture with his mobile phone, but that he deleted the picture from his phone. D gave his computer to police and had his wife give them the memory card that was in his phone. She also gave consent to police to remove a section of carpet next to the baby’s changing table, which investigators believed contained semen. D was charged with four counts of aggravated sexual assault of a child under age six. At trial, the State was able to corroborate Count Three—the nursery in­ci­dent—by analyzing the fluid found next to the changing table, confirming it was seminal fluid, and comparing it with a DNA sample from D. However, the State’s computer-forensics expert was unable to recover any evidence from D’s computer or memory card. According to the expert, D used a computer program to irretrievably delete files on his computer and erase the contents of his memory card. The jury convicted D of all four counts and sentenced D to life confinement on each count.

        “We granted the State’s petition for review to decide whether the corpus delicti rule was satisfied in this case, and whether the rule continues to serve its intended purpose in this state’s jurisprudence. We decide that a strict application of the corpus delicti rule is unnecessary when a defendant confesses to multiple criminal offenses within a single criminal episode or course of conduct if the crimes confessed to are sufficiently proximate that the underlying policy reasons for the rule are not violated. As a result, we will reverse the judgment of the court of appeals and reinstate the judgment of the trial court.” Retroactive application of the decision recognizing a closely related crimes exception to the corpus delicti rule did not violate D’s due-process rights; the court’s decision was a routine exercise of common law decision-making in which it brought the law into conformity with reason and common sense.

Where D was convicted of DWI, the evidence was sufficient to find that he operated his vehicle because he was found asleep in the driver’s seat of a running truck parked off the roadway and was the only person in the area. Murray v. State, 457 S.W.3d 446 (Tex.Crim.App. 2015).

        A jury convicted D of misdemeanor driving while intoxicated. D appealed that there was legally insufficient evidence adduced at trial to prove beyond a reasonable doubt that, for purposes of the DWI statute, he was operating a vehicle. COA agreed and rendered an acquittal. CCA granted the State’s petition for review on the sole question of whether “a driver who is passed out behind the wheel of a running vehicle [is] ‘operating’ it for the purposes of DWI.” CCA reversed COA and remanded.

        “Based on Appellant’s admission that he had been drinking, [officer]’s observation that Appellant appeared ‘very intoxicated,’ and the fact that no alcoholic beverages were found in the vicinity, a fact-finder could have reasonably inferred that Appellant consumed alcoholic beverages to the point of in­toxication somewhere other than where he was found. Furthermore, because Appellant was the only person found in the area, a fact-finder could have also reasonably inferred that Appellant drove his vehicle to the location at which he was found after drinking to intoxication.”

Trial court properly refused to appoint an expert to examine the meth at issue but abused its discretion in denying both inspection and testing at D’s expense. Ehrke v. State, 459 S.W.3d 606 (Tex.Crim.App. 2015).

        A jury convicted D of possession of between one and four grams of methamphetamine in a drug-free zone and, because of two enhancement allegations and the drug-free-zone allegation, assessed a sentence of 75 years in prison. D appealed, contending that the trial court erred when it denied his motion to make an independent examination of the alleged methamphetamine. COA overruled this issue. CCA reversed and remanded.

        The trial court erred by refusing to allow D’s counsel to obtain an independent analysis of the methamphetamine, as permitted under Tex. Code Crim. Proc. art. 39.14, because D was not required to meet a minimum threshold showing in or­der to be permitted to have an independent expert analyze the methamphetamine. The trial court did not err by refusing to appoint an independent chemist to retest the weight and composition of the methamphetamine because D’s motion failed to make a preliminary showing of a significant issue of fact as it provided no concrete reasoning for why D needed an independent chemical analysis of the methamphetamine. He did not set forth any reason to doubt the analysis by the original chemist or that the substance was meth­amphetamine.

Text messages were properly admitted into evidence under Tex. R. Evid. 901 based on complainant’s testimony. Butler v. State, 459 S.W.3d 595 (Tex.Crim.App. 2015).

        D was convicted of the aggravated kidnapping of his girlfriend. D appealed that the trial court admitted certain text messages into evidence that were not properly authenticated. The State introduced the text messages through the girlfriend, who testified that D had called her from that number on past occasions, that the content and context of the text messages con­vinced her that the messages were from him, and that he called her from that same number during the text message ex­change. Relying on Tienda v. State, 358 S.W.3d 633 (Tex.Crim.App. 2012), COA held that the girlfriend’s testimony did not adequately authenticate the messages. Finding that the trial court erred by admitting the messages and that their admission into evidence was not harmless, COA reversed D’s conviction. CCA granted the State’s petition to examine COA’s application of Tienda. CCA reversed COA.

        CCA analyzed the testimonial authentication of the messages, including a Tienda analysis of how complainant could have known it was D sending the messages, and concluded that “[t]he State could have endeavored to make all of these circumstantial indicia of authenticity more explicit and less am­biguous than it did. However, under the circumstances presented in this case, we cannot agree with the court of appeals that the trial court abused its discretion to conclude that there was sufficient evidence to support a jury finding that the text messages were indeed what the State and [complainant] purported them to be—namely, a text-message exchange between [complainant] and Appellant.”

CCA denied D’s subsequent habeas application and motion to stay D’s execution. Ex parte Pruett, 458 S.W.3d 535 (Tex.Crim.App. 2015).

        In 2002, D was found guilty of capital murder and sentenced to death. CCA affirmed on direct appeal. D filed his ini­tial habeas application in the convicting court, and CCA subsequently denied relief. D filed a subsequent habeas application, and CCA said it failed to satisfy Tex. Code Crim. Proc. art. 11.071 § 5(a), and dismissed it. In April 2015, D filed in CCA a motion for leave to file a petition for a writ of prohibition and a petition for a writ of prohibition. CCA denied leave to file the writ on April 20, 2015.

        On April 17th, D filed in the trial court his second subsequent habeas application, in which he asserted he was entitled to relief under Article 11.073 because, had the results of DNA testing conducted pursuant to a Tex. Code Crim. Proc. ch. 64 motion been available at trial, it was likely the jury would not have convicted him. CCA denied the application:

        “In May 2013, applicant filed in the trial court a motion for post-conviction DNA and palm-print testing under Chapter 64 of the Texas Code of Criminal Procedure. The trial court granted that testing. However, the results of the testing were inconclusive, and the trial judge found that it was not reasonably probable that applicant would have been acquitted had the new results been available at trial. Applicant appealed that decision to this Court, and, after reviewing the issue de novo, we affirmed. . . . Article 11.073, by its language, applies to relevant scientific evidence that was not available to be offered by a convicted person at the convicted person’s trial. Article 11.073 provides that a court may grant relief on an application for a writ of habeas corpus if a person (1) files an application containing specific facts indicating that (A) relevant scientific evidence is currently available that was not available at the time of trial because it was not ascertainable, and (B) the scientific evidence would be admissible at trial, and (2) the court makes the above findings and also finds that, had the evidence been presented at trial, ‘on the preponderance of the evidence the person would not have been convicted.’ Because both the trial court and this Court during the 2013 Chapter 64 proceedings found that the inconclusive DNA evidence did not support a reasonable probability that applicant would have been acquitted had that evidence been available at his trial, applicant is foreclosed from obtaining relief under Article 11.073. Therefore, applicant is denied relief in this subsequent writ application, and his motion to stay his execution is denied. No motions for rehearing will be entertained[.]”

CCA denied D’s subsequent habeas application and motion to stay D’s execution. Ex parte Pruett, 458 S.W.3d 537 (Tex.Crim.App. 2015).

        In a separate opinion handed down this day, April 24th, CCA denied relief on D’s second subsequent habeas application, in which he asserted he was entitled to relief because, had the results of DNA testing been available at trial, it was likely that the jury would not have convicted him. (See previous case.)

        On April 20th, D filed in the trial court this third subsequent habeas application, in which he asserted he was entitled to relief under Article 11.073 because, had a 2009 National Academy of Sciences report been available, which, he asserted, could have discredited the testimony regarding tape comparisons, the jury would not have convicted him. CCA found that D failed to satisfy Article 11.071 § 5 and Article 11.073(c). Accordingly, CCA dismissed the application as an abuse of the writ without reviewing the merits of the claim, and denied his motion to stay the execution under Article 11.071 § 5(c).

In a murder trial, people who participated in substance-abuse treatment with D were properly permitted to testify that he confessed to them because D’s participation in the program, although bargained for as part of a plea agreement, was involuntary; D agreed to participate only to avoid a trial and incarceration. Absalon v. State, 460 S.W.3d 158 (Tex.Crim.App. 2015).

        In 2012, D was convicted of a 1984 murder. During D’s trial, several people who had participated in substance-abuse treatment with him were permitted to testify that he had confessed to them that he committed the murder. D filed a pretrial motion to suppress the testimony on the ground that because his statements were made during the course of voluntary substance abuse treatment, Tex. Code Crim. Proc. art. 38.101 and Tex. Evid. R. 509(b) made them inadmissible. The trial court, however, denied his motion because his participation was part of a court-ordered condition of probation and, therefore, not voluntary. COA affirmed, and CCA granted D’s petition to de­termine whether COA erred in concluding his participation in the substance-abuse program was involuntary. CCA affirmed COA.

        D’s participation in the Straight, Inc., substance-abuse program, although bargained for as part of a plea agreement, was not voluntary for the purposes of Rule 509(b) and Article 38.101. Therefore, it was not error for the trial court to admit the testimony of other participants in the program who heard D admit to the murder.

Court of Appeals

Trial court erred by cumulating D’s sentences and ordering he serve them consecutively because Tex. Penal Code § 3.03(b) unambiguously provided that a sentence for compelling prostitution could not be stacked with a sentence for sexual assault of a child when the offenses arose from the same criminal episode and were prosecuted in a single criminal action. Miles v. State, Nos. 14-14-00154-CR, 14-14-00155-CR (Tex.App.—Houston [14th Dist] June 16, 2015).

        The trial court did not abuse its discretion during the guilt phase by excluding evidence of complainant’s social media posts and related testimony where the trial court reasonably could have concluded that the evidence did not prove complainant’s “sexuality” or any type of propensity to engage in prostitution and would not have diminished her credibility with respect to the sexual assault. COA affirmed the judgment as modified.

The affidavits used to support the issuance of warrants that permitted search of D’s truck, trailer, and a rental car were insufficient; however, the erroneous admission of the evidence did not contribute to D’s conviction. Taunton v. State, No. 06-14-00159-CR (Tex.App.—Texarkana June 19, 2015), pet. refused.

        The affidavits stated that three people had been murdered and that D was charged with capital murder, therefore, the magistrate could have arguably concluded that a specific offense had been committed; however, one could not discern from the four corners of the affidavits how blood evidence, firearms, ammunition, carpet, the victims’ cell phones, or credit/debit cards would be evidence of the offenses to which reference was made in the affidavits. The evidence produced from the searches was peripheral and cumulative; the State’s case against D was very strong, even in its absence.

Trial court erred by refusing to include D’s requested instruction on unanimity in the charge where the State presented three scenarios that would have permitted the jury to convict defendant of assault. Ansari v. State, No. 04-14-00728-CR (Tex.App.—San Antonio Aug 5, 2015).

        The error was not harmless because the charge as a whole never mentioned incident-unanimity, the State referenced two of the alleged assaults in his closing argument, the evidence presented by the State concerned three separate instances of assault but D was charged with only one count of assault, the contradictions in the evidence between the two witnesses and law enforcement and photographs impeached the testimony of the eyewitnesses, and the State addressed all three assaults in its opening argument. COA reversed and remanded.

“Most People Call Me Charlie”

“Example is not the main thing in influencing others. It is the only thing.”

—Albert Schweitzer

State of Texas v. Charles County: 1976–1995

A woman was brutally murdered in San Antonio and one of the three suspects, of course, was her husband. The assistant district attorney assigned to the case was a master at putting people on death row, but he had trouble keeping them there, because he cheated so often and so flagrantly that his capital convictions almost never survived appellate review. This prosecutor really wanted the husband, so he quickly made a deal with Moore, one of the other two defendants, even before Moore had a lawyer, promising that his cooperation would make it “easier and light on” him.2 On April 27, 1976, a lawyer was appointed to represent the second defendant—whose name was County—and the prosecutor, apparently lacking complete confidence in Moore, made a deal with the lawyer that he would not seek the death penalty in County’s case if he cooperated against the husband. County did cooperate, just as he and his lawyer had agreed he would, but it turns out that the assistant district attorney was not a man of his word. Shortly after convincing a jury to condemn the husband to death, the prosecutor let Moore plead guilty to a lesser charge for 17 years’ imprisonment. He denied that he had ever had a deal with County and his lawyer, though, and he prosecuted County and put him on death row, just like he had done the husband.

Unfortunately for the assistant district attorney, Charlie Butts was the lawyer appointed to defend Charles County, and he was not about to allow a client of his to be cheated out of his life by an “unethical and unprofessional”3 prosecutor. Justice would eventually come in this case, but it took almost 19 years. It was a good thing for Charles County that Charlie Butts never quit on him.

The court of criminal appeals reversed County’s first conviction in 1984, but the prosecutors got another

After losing the first trial, Charlie appealed to the Texas Court of Criminal Appeals, and that court reversed County’s conviction because of error in the jury charge.4 That was 1984. By then, the original, cheating prosecutor was no longer employed by the state, but the new prosecutors pushed ahead and announced their intention again to seek the death penalty. Charlie, and co-counsel Bobby Willmann, moved to quash the capital murder indictment, arguing that the 1976 agreement not to seek the death penalty should bar the state from doing so now. The prosecutor who had made the deal was called as a witness and denied having done so. The trial court overruled the motion, the prosecution went forward, and County was again convicted and sentenced to death.

Another reversal proved that Butts was right all along

And Charlie continued to fight. He appealed again to the court of criminal appeals, and, among other things, he argued that the trial court had erred in overruling the motion to quash. Initially, on March 29, 1989, a majority of the court voted 5–3 to affirm the conviction, rejecting all points of error, including those related to the “alleged agreement between the prosecutor and appellant’s attorney.”5

Despite the fact that the original majority managed to call the agreement an “alleged” one no less than four times in the course of three paragraphs,6 Charlie knew it was real, because he had been present when it was made. Convinced that the trial record did not accurately reflect the court’s ruling, he filed a motion for rehearing and included a motion to abate the appeal so the record could be corrected. Rehearing was granted, the appeal was abated, and the case was remanded for a hearing about the record. The trial judge, the Honorable Pat Priest, held a hearing and agreed that parts of the record were inaccurate. In addition to correcting the record, Judge Priest added this to it, making crystal clear who he believed had told the truth—and who had not—about the agreement:

[I]n fact, I did find that Mr. County was told that he would not be prosecuted for capital murder, and I couldn’t, frankly, fathom any reason under the sun why Mr. Butts would have given [the prosecutor] carte blanche with his client with any understanding short of that, and I do not believe, in fact that he did. I think that was the understanding, and so I intended to explicitly find exactly the opposite of what the Court of Criminal Appeals found that I implicitly found.”7

Of course, Charlie had had it right from the start. The state had made an agreement not to seek the death penalty against County, and had violated the agreement—not once, but twice. Based on the corrected record, on May 15, 1991, a new majority of the court of criminal appeals reversed the conviction and remanded the case for a new trial, holding that the trial court had the authority to bar the prosecution for capital murder “on a finding that an enforceable agreement not to prosecute existed.”8 Only Judge Campbell, who had authored the opinion on original submission, dissented.

A third trial ends in conviction and a life sentence, but it too is reversed

Bexar County next reindicted Charles County in 1991 and later retried him a third time, this time for murder. Fortunately, Charlie was still there.9 Although County was convicted and sen­tenced to life imprisonment, Charlie appealed, this time to the San Antonio Court of Appeals. On March 9, 1994, in a unan­i­mous opinion written by Justice Tom Rickhoff, the court reversed the conviction once more, finding that the trial court had failed to properly apply the law of parties to the facts of the case.10

County goes home in 1995 after three trials, three reversals, and a plea bargain for time served

And finally, the state had enough. On December 30, 1994, Charles County was offered, and accepted, a plea bargain of 40 years’ imprisonment, with credit for time served. He walked out of jail 31 days later a free man. It would not have happened but for Charlie Butts’ heroic willingness to wage this epic war for more than 18 years.

Early life, military service, law school, and a diverse career in the law

Charles Dana Butts died in San Antonio on July 23, 2015, at the age of 94. He practiced law for 66 years. Charlie was born and raised in Wichita Falls. He started law school at the University of Texas in 1941, but like many of his generation, his education was interrupted by the war. He joined the Air Force in 1942 and was later awarded the Bronze Star as First Sergeant of 535th Bomb Squadron, 381st Bomb Group (H) in England. He returned to law school at UT in 1946 and got his degree on May 10, 1949. He went back to Wichita Falls to practice law, and soon moved to Odessa and then to Billings, Montana. In the early 1960s he joined the Tarrant County District Attorney’s Office, and a few years later he and Shirley moved to San Antonio. She was a defense lawyer, and Charlie worked for the Bexar County District Attorney’s office, eventually serving as First Assistant to District Attorney Ted Butler.

Although he handled a wide variety of civil cases, and prosecuted a number of high-profile defendants,11 Charlie today is widely regarded as one of the very best criminal defense lawyers ever to practice in Texas. He was a founding member and past president of the Texas Criminal Defense Lawyers Association (1987–88), president of the San Antonio Bar Association (1979–1980), and Director Emeritus of the San Antonio Criminal Defense Lawyers Association.

Shirley Butts was the best lawyer he ever knew, and he never tired of saying it

I very clearly remember the first time I heard Charlie speak. It was 1976, I was a first-year law student at St. Mary’s, and he was a guest lecturer in our criminal law class. I knew of Shirley Butts then because she was a professor at the law school. I later learned that she got her law license in 1954, that she worked for the Tarrant County District Attorney’s Office and was in private practice in Fort Worth for several years before moving to San Antonio with Charlie, where she worked with him and other lawyers. In 1981 she joined the San Antonio Court of Appeals, where she served with distinction as an Associate Justice for a number of years.

Charlie could not have been more proud of his wife’s accomplishments as a teacher, a lawyer, and a judge. I remember he praised her the first time I heard him speak, and in the scores of times since then that I heard him, never—not once—did he fail to credit Shirley’s legal genius. When interviewed as a past president, Charlie made sure, as always, to give Shirley the credit she deserved: “I’m blessed with having a wife that’s, I think, the best lawyer I ever knew.”12 Their marriage of 48 years ended with his death, and I guess I never met two people more devoted to each other.

Mentally strong to the very end

A few years ago, while crossing the street on the way to deliver a CLE in San Antonio, Charlie was run down by a careless driver. This accident slowed him down a little, forcing him to use a walker, and toward the end of his life he was slowed down a little more by heart problems, which confined him to a wheelchair. That said, he remained in relatively good physical health for most of his life.

I am happy to report that Charlie had all his mental faculties to the very end. I saw Charlie often during his last few months, and I was astounded at how well his mind worked. At his 94th birthday party in June, he recalled the names of lawyers, judges, clients, cases, and trials from 40, 50, 60 years ago. He talked about campaigning against Warren Burnet for District Attorney in Ector County in 1951, and about how the two of them drank beer the night Warren squeezed out his narrow victory. He discussed two of his cases that had had particularly significant impacts on Texas law.13 He absolutely was as sharp as anyone a third his age.

Charlie was scheduled to speak at the San Antonio Criminal Law Institute on April 17 this year, but reluctantly called and canceled about a week before the seminar because of health concerns. He did get his paper to us and it was excellent—as well-written and informative as any he ever wrote. We published the paper—“Reflections on a Lifetime in the Courtrooms of America”—in our course materials, and if you don’t have a copy, email me and I will send it to you.

He never stopped teaching

This was the 52nd year the San Antonio Criminal Law Institute has been presented, and during that time, probably nobody spoke as often as Charlie Butts. He also spoke and wrote papers frequently for TCDLA for the last 44 years. Since 1999 Charlie served on the editorial board of the San Antonio Lawyer, and he authored more than a dozen articles for that publication. His ten-part series, “War Stories,” inspired and entertained us and, I strongly suspect, was the single most popular item the Lawyer ever published. In his last paper for our Institute in April, Charlie wrote about many of his cases dating back to the ’50s, and said, “I can remember all of them in detail to this day.” And I know he could.


A man approached me at Charlie’s funeral, stuck out his hand, and asked, “Do you know who I am?” I was almost certain I did, even though there was no reason for me to know him. The man—or at least the man I thought he was—and I had never met, or even spoken, as far as I remembered. I had only seen him two or three times in my life, and not at all in more than 20 years. I shook his hand, took a chance, and said, “You’re Charles County.” And he was. Even though I did not recognize his face, I knew he would be at the funeral, if there was any possible way he could get there. He introduced me to the family members who accompanied him. He seemed to be in good health, especially for a man who had spent a third of his life behind bars, much of it on death row.

After the funeral, when the pallbearers had carried out the casket to the hearse, just before it would depart for the Texas State Cemetery in Austin, Mr. County asked the funeral director if his family could take a picture of him beside the car in which his former lawyer lay. The services that afternoon had been moving indeed: the playing of “Taps”; the presentation of the folded American flag to Justice Butts; the presence of Charlie’s family, the gathering of judges and lawyers from the courthouse; the heart-felt eulogies given by Suzanne Hildebrand and Judge Priest. Of all the moving moments that day, though, I was most affected by the presence of the County family. Charlie had fought for years and had finally been able to get this man back to his family, and the man and his family knew it, and they came to show their gratitude. This touched me, and I’m as certain as I can be that Charlie would have been particularly happy to know that Charles County was at his funeral.

We salute you, amigo

Charlie’s email address was CarlosAmigo, and until recently, he was an active participant on the San Antonio Criminal Defense Lawyers’ listserve. He was quick both to join the legal debates that lawyers sometime have, as well as to congratulate those who had won a case or achieved something in the legal community. A few years ago, I wrote an opinion piece in the local newspaper that challenged our district attorney to join the rest of the civilized legal world and establish a pretrial diversion program for adults. Charlie wrote an email to me about a similar program he and his boss, Doug Crouch, had set up when they worked together in the Tarrant County District Attorney’s Office 50 years ago, before anyone had heard the term “pretrial di­version.” This sort of note was pure Charlie Butts: a well-written, entertaining history lesson meant to teach something useful about the present and the future. He wrote that their efforts half a century ago had been savaged by the Fort Worth media, but that it had nonetheless been a positive pro­gram. “I do be­lieve we saved some very worthy young people from having a criminal record, thereby serving society, the criminal justice system, and not to mention saving a whole lot of expenses to the taxpayers.” Not a bad idea, then or now.

Charlie closed his email with best wishes for me and Stephanie,14 and he attached a photograph of himself raising a glass of white wine. The picture bore the caption: “By the attachment hereto, I salute you.” It is our turn now, Charlie, to salute you. Albert Schweitzer was right: Example is the only way to influence others, and for so many years, for so many people, you served as a wonderful example of how real lawyers should conduct themselves, in and out of court.

Thank you for that, and adios, amigo.


1. This is how he introduced himself when interviewed as a past president for the oral history project maintained by the Texas Criminal Defense Lawyers Association. See Charlie was unfailingly courteous and had the manners and bearing of a 19th-century gentleman, but he did not have a pompous bone in his body.

2. See Buffington v. State, 652 S.W. 2d 394, 396 (Tex.Crim.App. 1983)(Clinton, J., dissenting).

3. These were the adjectives supplied by Presiding Judge John Onion, and earned by the prosecutor, for Brady violations he committed in the husband’s case. See Buffington v. State, 652 S.W. 2d at 395 (Tex.Crim.App. 1983)(Onion, P. J., concurring). Judge Edward Prado, now on the Fifth Circuit, then a United States District Judge, called the prosecutor’s behavior “deplorable.” Buffington v. Copeland, 687 F. Supp. 1089, 1093, 1104 n.12 (W.D. Tex. 1988).

4. County v. State, 668 S.W. 2d 708, 711 (Tex.Crim.App. 1984). Charlie would be the first to insist that his co-counsel, Shirley Butts, be given proper credit for the appellate victory.

5. County v. State, 812 S.W. 2d 303, 310 (Tex.Crim.App. 1989). Judge Bill White, former Bexar County Dis­­trict Attorney, did not participate in the de­cision.

6. County v. State, 812 S.W. 2d at 310–311.

7. Id. at 316.

8. Id. at 317.

9. And so was Bobby Willmann.

10. County v. State, No. 04-92-00347-CR (Tex.App.—San Antonio 1994, no pet.)(not designated for publication).

11. While working in Tarrant County, Charlie assisted in the pros­ecution of Kenneth Allen McDuff for a triple murder in 1966. The jury in that case sen­tenced McDuff to death, but his sentence was commuted to life imprisonment fol­low­ing the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238 (1972). McDuff was paroled in 1989, and was later convicted of multiple capital mur­ders that earned him the title of “The Most Notorious Serial Killer in Texas History.” The 1966 trial is detailed in Bad Boy, written by Gary M. Lavergne.

12. To listen to the interview, go to

13. County v. State, 668 S.W. 2d 708 (Tex.Crim.App. 1984); Grayless v. State, 567 S.W.2d 216 (Tex.Crim.App. 1978).

14. My wife Stephanie Stevens, the best lawyer I know.

Going to Prison in Texas in 2015, Part 1


For over 30 years our firm has represented offenders and their families in prison and parole administrative and legal issues. The first version of this article was published in the Voice more than 20 years ago. But the Texas prison system changes so often we periodically update this material so that Texas lawyers and their clients and families know what to expect when a client must “do time.” The purpose is to reduce the fear and uncertainty every “first timer” (and their loved ones) anticipate after realizing he/she is going to prison—and how to conduct themselves once there.

In the past our law firm held private seminars for families and defendants who faced prison time. In the mid-’80s we backed away from doing that work as we were too busy with other types of cases. In the mid-’90s, as our firm expanded, we again started offering individual counseling seminars to clients and families prior to a family member leaving to serve a prison term. We hope the general information we provide will be of assistance to attorneys, their clients, and their clients’ families. In fact, often it’s the families that need this information as much, or more, than the client going to prison. The general information here applies to both male and female prisoners.

The best time to provide this information is before the client is in jail, before conviction. In other words, when the client is out on bond, the information should be available, with the hope he or she will not need it while recognizing that prison is a possibility.1 However, in most cases we end up presenting the information after the client has been sentenced, while in county jail awaiting transfer to TDCJ.

In the past these seminars have been done by an attorney from our firm and a former TDCJ offender. Our “How to Go to Prison” seminars generally are now conducted by attorney David O’Neil, one of our paralegals who is a former prison guard (and whose son had been incarcerated in TDCJ), and, in some cases, a former TDCJ offender.

David O’Neil graduated from St. Mary’s School of Law in 1979. He has both a Juris Doctor and an L.L.M. (a Masters in Law Degree). David is a retired Marine JAG officer. Upon retiring from the military, David spent five years as Chief of the Public Defender’s Trial Section at the Texas Department of Criminal Justice. David is a Co-Chairman of the TCDLA Corrections & Parole Committee and has written a number of articles about defending TDCJ offenders, parole, and civil commitment of sex offenders. David now handles most of the parole- and prison-related cases for the firm.

Our Legal Assistant, Debbie Bone, worked at TDCJ for 13 years—first as a correctional officer, then in administration. Her husband was also an officer, eventually rising to the rank of captain. Debbie’s son was incarcerated in TDCJ and then spent time on parole. She not only knows TDCJ inside and out; she also understands what parents go through when their children are incarcerated and on parole. Debbie has worked in our Huntsville office as a paralegal for over 10 years.

In some cases we also have a former TDCJ offender assist us in the presentation. Throughout this presentation there are three major rules the newly arrived offender should keep in mind at all times:

1. Learn to be self-reliant. Do not use others, or allow others to use you.
2. There are no secrets in prison. What you do and who you do it with will be noted by both guards and offenders. Privacy disappears.
3. Life is not fair and nowhere is that more true than in prison. Do not waste your time on issues outside your control.

All the horror stories one hears about prison from movies, newspapers, books, or gossip likely have a degree of truth to them. However, most of these horrible incidents are very rare exceptions to the boring daily life that most experience in prison. For instance, there is a common perception that weaker prisoners are often raped by stronger ones. But the reality is that evidence of rape in prison is far less common than is perceived by the general public. Other incidents of violence that appear regularly in the media certainly take place, but with far less regularity than is commonly believed. We know many, many offenders who have served over 20 years in prison without serious problems. The key to success in prison is in understanding the culture, staying out of other people’s business, and avoiding situations that lead to trouble.

I. Getting Ready for Prison

I strongly recommend to the potential offender to get complete medical and dental checkups. Keep a copy to take or mail to the county jail facility (depending upon their practice) and leave a copy with family. Things do get lost in prisons. If possible, have the client complete a signed HIPAA release filed with any medical provider who may have relevant medical records. Hopefully the checkups can be done before you go before the judge. Benefits from a physician’s report include:

1) Medical problems may affect the judge’s decisions at sentencing.
2) The offender will have current medical records as proof of any ongoing medical issues the jail and the prison should know about.

Tell the doctor that you may be going to prison, and that you want everything documented. Tell your dentist to perform any cleaning and preventive care at this time. Have any cavities filled. Dental care in prison is not prompt and is more likely to involve pulling a tooth as opposed to more modern dental procedures. Prison is not a place for toothaches. If you wear prescription lenses, we suggest that you have your eyes reexamined, and that you bring one sturdy medically prescribed pair of glasses. The prison does not provide contact lenses and will not allow colored contact lenses. Further, an offender cannot replenish contact lenses through the prison commissary system. Be aware that any further acquisition of glasses will be done through the prison, and there is a long wait for that service.

A. Medical Issues

If medical problems are already diagnosed and medication is being taken, have the doctor prepare a prognosis letter explaining the problems and the medication used, which includes any limitations on work assignments or other similar concerns. This should be provided to the County Jail—TDCJ will not accept this from the offender. Hopefully the County Jail will forward it. The prison will not believe a word an incoming offender says about his health without written medical verification of his claims from a physician. Even then, the medical personnel may not accept the letter unless it comes to them directly from the doctor. We would recommend that offenders have all physician contact information available during their intake process. There have been documented cases of offenders using fraudulent medical reports to game the system and even to escape. Furthermore, once the client enters prison, there is no guarantee that the quality or nature of treatment received in the free world will continue in prison. In prison, the offender will be one of over 150,000 patients in a health care system often described as horrible.

The prison’s medical system is in need of substantial improvement. The care providers are contracted by the state with state medical schools. The University of Texas Medical School in Galveston contracts for most of the East and South Texas area prisons. In the Northern and Western sections of the state, service is provided by the Texas Tech University Health Sciences Center in Lubbock. It is not that these schools fail to supply good medical care in their medical school hospitals; the problem lies in the quality of services available in the prison units.

The health services on the units are nurse-driven, with doctors available if a nurse determines one is needed. For the most part, the medical situation is, at best, inadequate. Once the offender is incarcerated, the prison system is responsible for his care, and will determine what medications will be administered. The client will not be allowed to take prescriptions into prison. The prison will totally take over from this point forward.

A rather common problem is where one suffers from bipolar disorder or has other similar mental issues prior to arriving in prison. Upon entering prison, the medication previously prescribed will likely be changed by the prison medical staff. At times, medication for some mental or physical disabilities may be terminated at the prison. The better the past medical history can be documented upon one’s arrival in prison, the more likely the chance of continuing the treatment as occurred in the free world.

Effective September 28, 2011, a law went into effect that amended the fee charged to offenders who request services from a health care provider. TDCJ is required to collect $100 from each offender who requests a visit to a health care provider. You will be charged a $100 fee for the first health care visit you request by submitting a Sick Call Request form or by requesting a staff member provide assistance in accessing routine health care services (i.e., not an emergency or life threatening as a walk-in patient). This fee covers all health care visits you request for one year. Any visit you request after the one-year period will be charged another $100 annual fee. If you do not request a health care visit, you will not be charged a fee. The fee will be deducted out of the offender trust fund account. In the event there is no money in the trust fund account to cover the fee, the law requires that 50 percent of each deposit into the offender’s trust fund account will be applied to the amount owed until total amount is paid. Exemptions to the fee: emergency visit; follow-up visit; chronic care visit; health screening and evaluation visit related to the diagnostic and reception process; prenatal visit; or health care services necessary to comply with state law and regulations. No offender will be denied access to health care as a result of a failure or inability to pay for the fee.

When the client enters the county jail, he should have the doctor’s letter, which includes a list of medications being taken and a statement of why they are necessary. Your medical history may affect eligibility for a specific type of job assignment. For example, suppose the client was injured in a car wreck some time ago and still suffers from that incident. If there is written proof of that, he may be able to avoid jobs that require heavy lifting or walking long distances.

Without a documented medical history an offender may be ordered to do work he shouldn’t be doing. For instance, we have seen many cases where offenders on medication that specifically instruct the patient to avoid direct sunlight when taking that medication have nonetheless been assigned to work long hours in the fields until they’ve collapsed. In such situations one needs to have proof of his injury to show why he should not be assigned certain jobs. Without that verification, there will likely be problems. Remember, the prison system will not take an offender’s word for anything.

B. Child Support

Incarceration does not eliminate an obligation to pay child support. The Texas Attorney General’s office is able to deduct money directly from the offender’s commissary account. The best way to deal with this issue is to have your lawyer file a motion to amend child support conditions so the payments are deferred until 30 days after release from prison.

C. Government Benefits

If Social Security or veteran’s benefits (other than retired military pay) are being received, those will terminate until the offender is released. Others receiving Social Security benefits under the offender’s name will continue to receive them.

D. Doing Business and the Mail

A prisoner is not allowed to operate a business, and we suggest that if possible, arrange to have someone handle your business for you while you are in prison. If caught trying to operate a business from prison, the offender can be subject to disciplinary action and lose classification rank or good time. Besides, running a business from prison is hard since there is limited phone access. It is difficult, but we have seen some offenders who could maintain control of certain types of management decisions via weekend visits and letters. Remember that both incoming and outgoing mail is read by prison personnel, and any exchange of bank account numbers, credit card receipts, etc., should be strictly avoided.

There are some cases where prison officials are not allowed to read offender mail. Mail to lawyers, judges, some elected officials, all media, and public service groups such as the ACLU may be exempt from censorship. Incoming legal and media mail may be opened and inspected for contraband in the offender’s presence, but may not be read by prison personnel. Phone calls are also monitored.

E. Quit Addictions

Addictions can cause serious problems in prison. Nearly all prisoners have used alcohol, drugs, or tobacco. Most have been addicted to one thing or another, even if it’s just caffeine. Those addictions should be stopped as soon as possible. This may be a difficult process, but the sooner you become completely free of cravings for anything, the easier life is going to be in prison. Being addicted to drugs or tobacco in prison is a hellish existence and always leads to trouble.

The Texas prison system is tobacco-free. That does not mean cigarettes are not available. It simply means you’re not supposed to have them. Smoking in prison can lead to several varieties of disciplinary violations and can get an offender indebted to other offenders and guards, thereby making life more difficult. The same is true of drugs. You can find just about anything in prison you’re willing to pay for, but I can’t think of a surer way to get in trouble than fooling around with tobacco or drugs while in prison. Attempting to smuggle tobacco into a correctional fa­cility in Texas is now a felony. Offenders, family members, and other visitors have been prosecuted for such conduct. Offenders have also been indicted for trying to bribe correctional officers to provide them with tobacco and certain other contraband.

F. What Can I Take to Prison?

Not much. You can bring a wedding ring, watch, and one religious medallion, but if deemed excessive in value or size they will not be allowed. You can also bring photos (not photo albums), legal and medical documents, one religious text, and substance-abuse literature. If medically prescribed, eyeglasses, dentures, and prostheses will be allowed. Contacts will be permitted until Health Services issues eyeglasses. One thing we strongly suggest you do is write the names and addresses of your loved ones as they appear on their driver’s licenses and place the list among the legal papers you are allowed to have. You will need this in­for­ma­tion when you fill out your TDCJ visitation list.

What about the money? How much money and how does it get there? We recommend around $200 to $300. Keep that much in your offender account at the county jail. When you go to prison, the money will go with you and will be available a week or two after you arrive, when you receive your TDCJ ID card. There are numerous ways to send money to the offender’s trust fund account—through the U.S. Postal Service, monthly checking account debit, Western Union Quick Collect, Western Union Convenience Pay, ACE, America’s Cash Express, Jpay, eComm, touchpay payment services, MoneyPak, and MoneyGram Express Payment. (Refer to the TDCJ website for details.) If paying through the U.S. Postal Service, be sure all incoming monies, both in jail and in prison, are sent by certified funds. A U.S. Postal Service money order works, but electronic transfers are quicker. The money order must be mailed along with an Offender Trust Fund Deposit Slip (the offender should mail several of these to his loved ones as soon as possible). If using the various electronic services, check with each service, as the codes and fees necessary to send monies to the offender are different. In any of the above services you will be required to have the offender’s name and TDCJ ID number to have it deposited in the Offender Trust Fund in Huntsville. To send deposits and or request deposit slips, contact Offender Trust Fund, P.O. Box 60, Huntsville, Texas 77342-0060, phone number (936) 438-8990.

Be aware that if you have court orders requiring you to pay restitution, court fees, or child support, then TDCJ will garnish those amounts from your trust fund account as stated in the orders. Usually the amount to be garnished in regards to restitution or court fees is ten percent (10%) of any deposit into the account until paid in full, but the initial transfer of funds from the county jail can be subject to a higher percentage. Child support is dealt with differently. In the event you are in arrears of Child Support, then the Attorney General’s Office can place a lien on your trust fund account until arrangements can be made on an agreed amount to be deducted from your account.

G. Preparing the Family

It is often the families, not the offender, who suffer the greatest emotional trauma during the prison term. Hopefully, the family can visit regularly, but many offenders will be in a prison hundreds of miles away from their homes. This is something the family needs to get used to, and the offender needs to reassure his family that he will take care of himself. The offender who continues to complain about problems over which the family has no control only enhances their fears and concerns. That is not to say that when certain exceptional unfairness or abuse occurs one should not notify the family, but the day-to-day hassles of prison life are best left in prison. There is nothing anyone can do about the fact that prison is not fun. Complaining about it to loved ones will only make them feel bad. Don’t make your family do your time with you.

II. Admission into TDCJ

A. Leaving the County Jail

Transfer from county jail to TDCJ usually occurs within 45 days from the date TDCJ receives the judgment and other required documents from the county because state law requires that TDCJ must begin paying rent to the county jail after 45 days. So what’s going on during the time while the newly convicted offender is in jail? Documents are being prepared by the court, district clerk, district attorney, and sheriff’s department to be forwarded to the prison. This is called becoming “state ready.” Once the documents are in the state ready office and TDCJ has authorized the county to ship the offender, the offender is ready for transport to TDCJ by the county and a delivery order will be issued to the county.

B. Catching the Chain

At most county jails there is a particular day of the week when the chain bus arrives, and everyone in jail knows about it. The offenders will generally have some kind of idea, and may even be told which day of the week they are going out. While one may know the day of the week the bus (a van or car in smaller counties) usually departs, one may not know which week one is leaving. There may be little or no advance notice, so families should be prepared to learn that their loved one has left for prison with little or no warning.

When the chain bus arrives, the offender must understand that the rules are now going to change. The local jail visitation rights, the phone calls, the status one may have enjoyed as a trusty are all gone. Early one morning, the offender will be abruptly awakened. He will be told the chain bus or other vehicle is waiting. Each offender will be stripped naked and strip-searched in order to ensure no one is bringing in contraband. TDCJ clothes will be issued upon arrival at TDCJ. County jail uniforms stay with the county. Offenders will be shackled to one another in pairs, handed a paper sack with their possessions, and led to a seat on the bus or other vehicle. Get used to it. Long, uncomfortable bus rides handcuffed to a person you don’t know, and probably don’t even want to know, are a common feature of prison life. If possible, try to use the bathroom before you leave because using the bathroom on a moving bus while handcuffed to another person is not easy.

C. Receiving and Screening

There are four male offender intake facilities across the state (Byrd, Gurney, Holiday, and Garza West) and two for women, one in Gatesville (Woodman State Jail and the Crain Unit). Women travel in a van or other vehicle, separately from men. Usually the offender is transferred to the nearest intake facility, but offenders may wind up anywhere in the state. A few special cases will go directly to the Byrd Unit in Huntsville.

There are basically two kinds of prisons in Texas. About 70 prisons are part of TDCJ’s Institutional Division, and are what we will refer to in the rest of this presentation as “real prisons.” You likely won’t be going to a real prison anytime soon. Instead, you will likely spend the first year or two in one of TDCJ’s other 40 or so institutions that are commonly called state jails or transfer facilities. A male offender can spend as much as two years “in transit” at these facilities before reaching a real prison.

But your first month or more will likely be spent at one of the six intake facilities. When you get there you will be stripped naked (get used to being seen naked in front of male and female officers) and told to stand while officers strip-search you and go through your property. You will be asked to squat and cough. Some officers may yell at or ridicule you. Try to pick a spot on the wall, stare at it and don’t pay attention to any insults. All the guards are trying to do at this point is see if anyone is stupid or crazy enough to talk back to them.

Next, for males, you will be shaved nearly bald; all offenders are made to shower with lice killer and issued clothing, bedding, hygiene products, and a rulebook. This process will take several hours, after which you will be fed and assigned a temporary bunk. It will take about a week to complete the intake process before you are moved into the general population. You should take this time to read the rules and become very familiar with them. Many offenders dump them in the trash.

This is a poor choice. Keeping the book shows prison employees you are interested in following the rules. But it is important to remember that prisons do not always operate as the rule­books suggest. The interpretation of these rules can change and change often. The only rule that really counts is whatever the individual guard says it is. The rules in TDCJ change—if not every two years when the legislature meets, then whenever the warden decides a change is needed. A security lapse can bring about massive change overnight. Prison is a hard place to find fairness or justice. Get used to seeing things done unfairly.

The next day, the offender is going to be taken down to another room, and then another room, and during this process the offender will sit, and wait, then sit and wait again. The offender may be taken back to “the house” (cell) and wait. Get used to this. During the first week you will be photographed, fingerprinted, and checked for tattoos. You will be assigned a TDCJ number, which will essentially serve as your name for the duration. All mail, incoming and outgoing, must have your name and TDCJ number on it or it will not be delivered. During this time you will be allowed to put ten names on your visiting list. Again, they must appear as they are on the driver’s license or other government-issued ID. TDCJ will then check the names on your list to make sure none of them are currently on parole. The approval process usually takes about two to four weeks, after which you may begin receiving visits from those persons on your list. If an offender lies about the relationship of a visitor (usually to obtain more favorable visitation rights), the offender can be disciplined and the visitor may lose visitation and telephone privileges.

D. Medical Examination

You will be examined by the TDCJ medical staff. This will occur in four or five visits back and forth to receive an EEG, an eye test, a physical examination, x-rays, and a dental exam. Now one can begin to understand why it was so important that the medical records were collected and forwarded from the sheriff’s office. You’ll listen to lectures on AIDS and hepatitis and possibly be interviewed by a psychiatrist. For sex offenders, this may be the most important visit. Keep in mind that anything you tell the psychiatrist will be available to the parole board later. This is not the time to discuss fantasies or events known only to you.

E. Sociology Interviews

These are two very important interviews. The questions asked in both interviews will be essentially the same, but the styles of the interview will be completely different. These are the Sociology I and II interviews. Sociology I is generally done by a clerk who will ask about the offender’s crime, why he did it, how he felt about it, whether he liked his mother and father, and similar types of questions. If your case is on appeal, discuss with your lawyer if questions about your crime should be answered. A simple, “my lawyer has advised I not speak of the facts of the case because of our appeal,” should be sufficient to satisfy the inquisitor. This sociologist will make every effort to be very friendly so they can encourage the offender to talk. Remember that anything said will be available for review by the parole board someday. Again, the less said, the better. Providing false information can be the basis for disciplinary action.

At a later time, you will return to the interview area and repeat the same interview, with the same questions, but this time with a different person. This is the Sociology II interview. This person may be belligerent and difficult. This is sometimes referred to as a “Mutt and Jeff” routine. The offender should behave in the same calm, polite manner as he did with the Sociology I interviewer. This second interview is designed to see how the offender handles anger and frustration. The interviewer will try to push buttons in order to observe the offender’s reaction. Do not get angry! The offender’s reaction helps the interviewer determine which type of prison unit the offender will be assigned. In most cases a calm, controlled, and respectful reaction will in­crease the possibility of being placed in a minimum security unit. Shortly after you complete the Sociology interviews, you will be given your TDCJ ID card and housed in the general population. From now on this TDCJ ID card must be in your pos­session everywhere you go.

F. Education

All offenders are given an education achievement (EA) test and an IQ test. The test results will determine whether the offender is required to attend school. If an offender is judged to be functionally illiterate, or can’t perform basic math skills, he will be referred to education for placement in classes. Offenders who do not have a high school diploma or GED will be placed in GED classes. Those offenders should take advantage of this opportunity. If you already have a GED or high school diploma, then you will likely never see the inside of a prison classroom. Most real prisons offer college courses and some even offer four-year degrees, but the offender must pay for this himself.

III. Classification and Time Credits

Classification depends on a number of factors: what crime was committed, criminal history, age, your prison disciplinary record. All of these factors go into it. How you are classified will determine how much “good time”—time earned in addition to calendar time—you receive.

A. The Nature of Your Crime

There are certain crimes for which good time has very little meaning. Those crimes are called “3g” crimes. If the crime committed is an “aggravated crime,” which we will discuss in more detail later, good time does not mean a lot except in classification and the benefits attached to that. Good time can be an important factor for the purposes of parole or discretionary mandatory su­per­vision unless the crime involves a weapon or is a crime of serious violence. Losing good time, however, will harm any offender, including 3g offenders. Losing good time can result in loss of privileges and custody changes that also can result in losing the opportunity to be considered for parole.

B. “G” Levels

The first important classification for time-earning classification is the custody classification. In the past there were fairly simple classification categories: minimum-in, minimum-out, medium custody, close custody, and administrative segregation. After the “Connally Seven” escapes, the rules regarding classification were revamped into the present incarnation. We have now come to what is called the “G” levels.

The optimum level is a G1 (General Population Level One). This level is within the sole discretion of TDCJ. There is a specific criterion that has to be met to reach this level. Those with certain offenses will never receive this level, and others with aggravated or lengthy sentences must be within 24 months of parole or dis­charge date for this classification. The most frequent assignment is a G2. If one is serving a 3g sentence that is 50 years or more, they generally must complete 10 years flat to be eligible for G2 (or G3), 5 years if the sentence is non-3g and more than 50 years. That eliminates most of the aggravated offenders. But the people with the lower classification of crimes will fall into this G2 level. The next level is G3. This is for newly assigned offenders and people who have had a disciplinary case(s), or other types of problems we will discuss in another area. G4 level can be assigned to newly received offenders if the current offense of record is a violent crime, or a pattern of violence has been established in “free world” convictions, or if the offenders has committed an assault of staff or offenders in an adult cor­rectional institution within the past 24 months. Finally, the most aggravated offenders will be in G5, General Population Level 5. This is for those offenders who have security precaution designators—i.e., escapes, assaults, or continued disciplinary prob­lems. There is a further designation of custody level for of­fenders who need to be protected by the system and are kept out of the general population in protective custody.

C. What Kind of Prison Am I Going to?

As mentioned earlier, you will likely do at least a year at transfer facilities before you are assigned to a “real prison.” The prison system has a unit level assignment. Level One unit is Trusty camps. Generally, only after two years can one achieve the Trusty level and be promoted and be eligible for a level-one unit assignment. Level Two units will only house those offenders classified as G1 and G2. The Level Three units will only house offenders who are G1 through G3. Level Four units will only house those offenders who are G1 through G4. Finally, the Level Five, the big units, will house offenders who are G1 through G5 plus administrative segregation. There are a handful of those units. Then there is a special type of unit, the administrative unit, better known as a “High Security” unit. We have a handful of those across the state, and they house a low number of offenders who, by their behavior, need to be segregated from the population.

D. Earning Time Credit

Everyone gets one day of credit for each day spent in prison.2 Even if the offender is the worst offender in the system, day-for-day time is granted and it can never be taken away. However, depending upon the nature of one’s conviction or criminal history, knowing the rules about earning good time may or may not be of interest. If you’re convicted of a 3g crime, good time may have only academic interest, although losing good time can have serious consequences. The great majority of these crimes require a judicial finding that a weapon was used in the offense, but that is not always true. For example, convictions of indecency with a child may not have involved use of a weapon, but it is currently considered a 3g crime.

If one is not convicted of a crime of violence, or if a weapon was not involved in the crime, good time may have a considerable effect upon the amount of time served. When no weapon or crime of violence is involved, good time credit may apply toward both parole eligibility and toward discretionary mandatory supervision. Good time credit can accelerate the date one gets to return home. If an offender has established himself as a model offender, and has earned one of the higher classifications, he is earning good time at a pretty rapid rate. Everyone enters prison as a Line Class 1. There are two classifications lower than that—Line Class 2 and Line Class 3. It is our hope that the offender will never receive either of those classifications, because one must receive a major discipline to get into those clas­sifications.

Traditionally, to be promoted to a level above Line Class 1 takes a minimum of 6 months in TDCJ custody, as does each promotion. One will then be eligible for promotion to what is called State Approved Trusty (SAT) Level IV or III. Six months later an offender can go to SAT III and then SAT II. The prison is no longer using the SAT I category. While in jail before coming to prison, the offender gets credit at a rate of 20 days of good time (GT) for each 30 days in jail. The good time credit, however, is not credited to the offender until he actually arrives at the prison. Misbehavior in the county jail can result in the sheriff asking the prison to withhold good time credit in jail, and most usually the prison will follow the sheriff’s request.

Below explains the classification levels. As far as the prison is concerned, all months are considered to have 30 days.

There are different good time earnings assigned to each of those. When starting out as a Line Class 1, you’ll earn 20 days of good time for every 30 days of calendar time that passes. Rather than say calendar time, offenders say “flat” time. So for every 30 days of flat time that passes you are gaining 20 days of good time.

Jobs are assigned at intake, and the most common job is the hoe squad, or field squad. This is also known among offenders as the largest weedeater in the world. For every 30 days one works, 20 days of good time and 15 days of work time will be credited. So every month that goes by, one can possibly get 65 days of time earning credit. As can be seen from the chart, each promotion adds a certain number of days until eventually when SAT III level is achieved, where one can begin to earn the maximum amount of time—75 days for every month.

E. Old Timers and New Offenders

The new TDCJ arrival will find offenders who have been there a long time. These “old timers” may be overheard discussing other types of good time earning capacity not discussed in the above sections. Offenders who come in today are not entitled to bonus time, education time, and that kind of thing. When discussions of “bonus time” or time credit other than what was just previously explained are heard, the new offender should realize that these terms not apply to him. Many changes have occurred in the task of counting time credit, and many methods may be used to calculate the time credit of an old timer. Do not concern yourself with the conditions under which others are serv­ing time. It is quite possible they do not know themselves.

F. Visits and Other Forms of Contact

Each level of time credit gets a number of contact visit privileges associated with it. Visitation is not a right; it is a privilege. The warden of the unit has total control over who comes to visit, and the conditions associated with each visit. An offender who enters the unit as a Line Class 1 will be eligible for one contact visit per month. Any other visits that month will be non-contact. This means it will be like in the county jail. The offender will sit on the other side of a divider and talk to his family through a screen, or through glass with telephone handsets. One good thing about prison visits is that they are considerably longer than what was enjoyed in the county jail. Most county jails limit visits to 15 or 20 minutes. In Texas prisons, visits are one day per weekend for two hours every time. A warden may allow a “special” visit if the family lives more than 250 miles from the unit. A “special visit” may be allowed one weekend a month for 8 hours (4 hours on Saturday and 4 hours on Sunday). This has to be set up in advance and approved by the unit warden.

Once you have undergone the initial admission and processing, you will be allowed a visit every weekend. There are some offenders who are limited to non-contact visitation with friends and family. This will depend upon criminal history and overall classification. Most offenders are allowed contact visits. As one gets promoted, he will be permitted to have more contact visits. The first promotion to SAT4 allows two contact visits per month. At the SAT3 level, three contact visits per month are allowed. You may hear many offenders make references to SAT2. Those offenders have been in the system for quite some time, and eventually the unit warden and the classification board thought highly enough of them to promote them to that level. The only real benefit to SAT2 is that a contact visit is allowed every weekend. If there are 5 weekends in the month, 5 visits are allowed. There are a number of wardens around the state who have decided that everyone on the visiting list gets a contact visit. Your visitation list can only be altered every 6 months, and may only include 10 names, so make sure you get it right the first time.

In the past, telephone calls placed by offenders to loved ones were very rare, if any. TDCJ has contracted and implemented a Telephone System whereas the offender can place collect calls or through prepaid account to as many persons through an approved calling list, which will be separate from their visitors list. Telephone calls can be placed in the following manner:

  • Collect calls—charges are accepted when the offender calls.
  • Friends and Family Prepaid—the telephone number owner establishes an account in which to deposit money to pay for the offender’s calls.
  • Offender Telephone Prepaid Debit Account—the offender or family can deposit money into the offender’s account.
  • Offenders can purchase an unlimited amount of phone time at the commissary.

The offender is allowed an unlimited number of minutes per month at 20 minutes per call. These phone calls are monitored, with the exception of legal telephone calls. Telephone access is a privilege and can be taken away given any disciplinary infraction or change in custody designation, as phone calls are not allowed for those offenders who are in Transient Status, Pre-Hearing De­tention, Solitary, Cell Restriction, or Special Cell Restriction, regardless of Custody designation. Telephones are located within the dayrooms/living areas of the cellblock/dormitories and various other locations as designated by TDCJ. Telephone systems are generally operational between 7:00 a.m. and 10:00 p.m., seven days per week, with the exception of count time and other times as designated by the Unit Warden.

Family members have the ability to purchase telephone minutes for use by the eligible offender directly through the provider. Calls can now be placed to post-paid cell phone numbers within the continental United States. Post-paid cell phones are those that have accounts with companies such as AT&T, Verizon, Sprint, etc., that have specified usage through contracts. No calls are allowed to prepaid cell phones or Pay as You Go cell phones, internet services, 800 numbers, businesses, pay phones, or international numbers

There are two other ways that offenders can place calls: a collect call placed from a state-owned unit telephone (which is requested through the Warden or designee) or a collect call on a state-owned unit telephone through the Unit Law Library placed pursuant to a statute or Agency policy. These calls will be placed at the discretion of the unit Warden or designee, shall be limited to one telephone call every 90 days (30 days for state jail offenders), and shall be no longer than 5 minutes in duration.

Prior to initial approval, an offender must not have been found guilty of any major disciplinary violations within the last 90 days (30 days for state jail offenders) and must be engaged in a full-time work, school, or treatment program.

Another form of communication is E-Messaging, also known as “JPAY.” This allows friends and family to send electronic messages to offenders for a fee. The fee is the same cost as a postage stamp. The offender will receive their message or letter usually within two business days.3

Remember, when communicating in the various forms listed above, never say or write anything that you wouldn’t want put on a sign in your front yard for all to see. Everything is read.

The only calls not monitored are call made to an attorney who has specifically made a written request to EMBARQ to receive calls from a client and has received prior authorization to do so. The application form for the attorney is on the TDCJ website. Offenders should not put attorneys on their phone list, or their calls may be monitored.

G. Security Precaution Designations (SPDs)

Security Precaution Designations, SPDs, are undesirable notations placed behind an offender’s name after all other classifications have been listed. This notation is an internal agency notation that may not be known to the offender. There are four SPDs, and each means the offender has something in his record that is a potential problem to the prison.

Security precaution designators are assigned for behavior in any way related to escapes, staff assault, hostage incidents, sentences to life without parole, and security issues (e.g., offender has gotten out of his handcuffs, or has managed to open the door on his cell). Offenders with an SPD designation receive a G4 custody classification. After 10 years, it is possible to move up to G3, but once labeled with an SPD, one cannot achieve higher than a G3 classification. One piece of advice about staff assault: “Staff assault” does not necessarily mean reaching out and striking a cor­rectional employee. All that is necessary for this label is to reach out and brush an employee’s shoulder and that employee has been assaulted. The definition of staff assault is an offender simply touching an employee. Never touch a prison employee, whether he/she wears uniform or street/civilian clothes. Once that occurs, the offender may have problems and an SPD. He probably will be assigned to administrative segregation, and all kinds of problems and bad things happen as a result.

H. Unit Classification and Other Committees

Once offenders have done time on transfer facilities (no more than two years), they will be reassigned to a ““real prison.”

After arriving at your new unit, you’ll be led to the Unit Classification Committee. This committee is made up of the war­den or the assistant warden, the building major or his designee, someone from the medical department, and someone from the education department. They visit with the offender and are in possession of the offender’s complete file. Unless one’s attorney instructs otherwise, this is one of the few times we would recommend that the offender discuss his case with any­one in prison. The only time offenders should discuss their case, or their personal business, is if the people with whom the offender is conversing have the offender’s file in front of them.

When the UCC meets with the offender, they are making several decisions that will be significant to the offender’s stay at that unit. For example, they will determine what job you’ll be assigned to and where you’re housed and what job you will have. One should be forthright with the members of these committees. Look them straight in the eye and let them know you are there to do your time the right way and get out. If you have any job skills that are useful in prison (typing, welding, or plumbing), be sure to mention them. Wardens like offenders who like to work, and a good job can mean all the difference in the world. Most wardens make new offenders spend 90 days on the hoe squad. Those who do that job well are usually rewarded with bet­ter jobs. Unfortunately, none of them pay. But those who refuse to work are put in close custody or cell restriction through the discipline process.

Going to Prison in Texas in 2015, Part 2” will conclude in the October issue of the Voice.


1. Where a defendant pleads to a felony offense and is sentenced to “time served,” TDCJ has taken the position that the defendant must be transferred to TDCJ for preparation of a release certificate. This could means several weeks in County Jail awaiting transit, and several more weeks in TDCJ awaiting the release certificate.

2. State Jail Felons do not earn any good-time credits towards a state jail sentence. State jail sentences must be served day for day unless diligent participation credit is recommended by the warden and approved by the court. Diligent participation credit can be awarded for up to 20%.

3. Source: Texas Department of Criminal Justice. Offender Phone and E-Messaging System, WEB (02/3/2011)

We Need Those Stinking Badges: Courthouse Security for Texas Lawyers 101

“Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

—Benjamin Franklin

Lubbock lawyers are engaged in an epic five-year struggle to enter the Lubbock County Courthouse with the same dignity enjoyed by other officers of the court. Along the way, many valuable lessons have been learned that might be of benefit to those in other counties who seek fair access to the halls of justice.


The equipment used to protect Texas courthouse visitors varies widely from county to county, ranging from no electronic security (“Sometimes we have a deputy with a gun”) to systems rivaling safety measures at international airports. There are courthouses with inoperable metal detectors offering make-believe electronic security. Others employ only hand-held electronic wands. Several smaller counties bring in portable security devices on “court days.” A few counties refuse to disclose security policies.1

The hodgepodge of courthouse security equipment is complicated further by varying degrees of discriminatory screening policies across the state.2 A few counties require all who enter the courthouse to submit to electronic screening, but most have systems that exempt courthouse employees from screening. Some counties with electronic security systems allow bypass badges with background checks for private lawyers, while other badge programs do not require background checks. Still others require only a bar card to be waived through metal detectors.3 In many Texas county seats, prosecutors and judges are welcomed into the courthouse without scrutiny, but private lawyers are subjected to unnecessary, demeaning, and sometimes comical screening procedures.4

This disparate treatment of the private bar is not right, nor is it fair. It is just plain stupid. As officers of the court, private lawyers should be on the same security level as their brethren of the bar. If private lawyers are deemed a security risk, that’s fine, but screening rules governing lawyers should also govern judges, prosecutors, bailiffs, and court reporters. All officers of the court should either be required to submit to screening or all should be exempt from screening, either with or without bypass privileges. Texas law authorizes a political remedy for the problem, but many Texas county leaders are of the opinion private attorneys should not enjoy security status on the same level as prosecutors and judges. This unfortunate position may be influenced by haunting memories of the Tarrant County Courthouse tragedy of 1992.

The Tarrant County Courthouse Tragedy of 1992

On July 1, 1992, George Lott—a former attorney—entered the Tarrant County Courthouse with a nine-millimeter semiautomatic pistol and brutally murdered two innocent lawyers, Assistant District Attorney Chris Marshall and John Edwards. Three others were wounded: Judge John G. Hill, Judge Clyde Ashworth, and Assistant District Attorney Steven Conder.5 Lott was upset about his pending child custody case and allegations of child molestation by his ex-wife.6 No electronic security was in place at the courthouse to detect the firearm. The shooting was reportedly the sixth violent courthouse incident in the nation that year.7 He represented himself at his trial and refused to appeal his death sentence. Lott was executed September 20, 1994.8

The Courthouse Security Fund and Government Code §291.010

In response to the Tarrant County tragedy, the Texas Legislature in 1993 established the Courthouse Security Fund (“the Fund”), creating a means to provide modern security measures in courthouses statewide.9 The law mandates the collection of a fee as court costs from defendants convicted of crimes.10 The law requires similar fees in civil cases, collected at the time of filing a case in a county court, county court-at-law, or district court.11

Texas law vests each county commissioners court with the duty to fund courthouse security.12 A budget that fails to provide essential funding for security is not a reasonable budget.13 A few examples: For fiscal 2013 in Harris County, population of 4.3 million, commissioners budgeted $2.2 million for courthouse security, receiving $1.6 million from fees mandated by the Courthouse Security Fund.14 Lubbock County, population of 289,324, budgeted $123,914 while receiving $120,500 from the Fund.15 Coryell County, population of 76,192, budgeted $25,992 and received $21,000 from the Fund.16

An examination of these budget statistics clearly shows the clients of Texas lawyers pay for courthouse security through court costs mandated by the Fund. Through their lawyers, Harris County litigants funded about 72 per cent of the cost of courthouse security. In Coryell County, it was about 80 per cent. In Lubbock County, it was 97.25 percent. Yet, in Lubbock County, the same lawyers who write the checks that pay for all but a fraction of the courthouse security budget are abused by the system they help fund.

While the law gives county commissioners the authority to fund courthouse security, Government Code § 291.003 gives the sheriff control of the courthouse, empowering the sheriff to keep order and preserve property.17 The sheriff has the ministerial duty to maintain the “peace and decorum of the courthouse.”18 Thus, the law provides a sort of checks-and-balances approach to courthouse security. But depending on the political climate of any given jurisdiction, it is usually the sheriff who calls the shots on who slides by screening at the front door of the courthouse.

With that political reality in mind, Local Government Code § 291.010 was enacted in 1999, giving county commissioners in Harris County the discretion to “authorize the issuance of an identification card to individuals permitting entrance into [the courthouse] without passing through the security services . . .”19 In September 2011, the Texas Legislature revised Local Government Code § 291.010, giving all county commissioners across the state the same authority as Harris County to authorize—and charge a fee for—bypass badges.20

Thus, Texas law allows for courthouse security bypass ID cards by a vote of county commissioners, even where the local sheriff opposes such access.

Today, bar card passes and security bypass badge programs for frequent courthouse visitors are ubiquitous. Harris County has enjoyed such a program for decades. Other large counties with similar programs approved by local commissioners include Bell, Bexar, Brazos, Fort Bend, Jefferson, Montgomery, Tarrant, and Victoria. In addition, large counties with similar programs authorized by the local sheriff are Collin, Hays, Hidalgo, Hunt, Nueces, Parker, Potter, Randall, Tom Green, Travis, and Williamson.

Alas, many counties still treat the private bar as a threat to security at the local courthouse. The George Lott tragedy 23 years ago in Fort Worth undoubtedly spurred the implementation of modern electronic security in Texas courthouses, but the incident also cast private attorneys in a sinister light, perhaps hampering lawyers in certain counties in their efforts for reasonable courthouse access.

The Lubbock Experience

In May 2010, Lubbock County officials budgeted monies from the Courthouse Security Fund to create a security system utilizing conveyor-belt scanners and metal detectors at the two main entrances of the building, and the other entrances to the courthouse were closed to the public. Lubbock County Sheriff Kelly Rowe created a screening policy that allowed county employees and other designated classes of courthouse visitors to bypass the security system. The sheriff did not include private attorneys among courthouse visitors allowed to bypass security devices.21

Consequently, many who seek to enter the Lubbock County Courthouse are treated as second-class citizens, including private lawyers. We join the queue each morning at the east and west entrances and shuffle in with our clients and other poor souls seeking justice. We empty our pockets of nickels and dimes, shove cell phones and important privileged client files into a bin bumped through a conveyor-belt scanner, and trudge through the metal detector. Those of us who suffer this indignity on a regular basis usually avoid being required to partially disrobe or undergo the dreaded wanding procedure when the buzzer rudely announces an artificial hip or a forgotten set of car keys. But not always. Depending on the mood of the deputies stationed at the front doors, even an iconic pillar of the legal community (a gentleman who calls the structure erected in 1950 “the new courthouse”) might be made to remove his belt or return his fingernail clippers to his car.

Meanwhile, we watch in awe as the privileged flash shiny plastic badges and scurry through the electronic maze, unscathed. All officers of the court (except private lawyers) are given free passage to the halls of justice—judges, court reporters, bailiffs, and clerks. Prosecutors have their own private entrance to the courthouse and are not subject to even a sideways glance by a hefty deputy. No matter how low on the totem pole, if you are employed by Lubbock County, you get a security bypass badge, even if you do not work at the courthouse. Many who do not work for Lubbock County get badges. If you are a CASA volunteer, or if you work for the Legal Aid Society, or if you are a law student involved in certain clinical programs, or if you are a victim assistance coordinator, or if you work for the company that provides computer services to the Lubbock County, you get a security bypass badge. All peace officers, visiting judges, and out-of-town prosecutors with concealed handgun permits are exempted from screening and don’t need badges. If you are an undercover narcotics cop, you are allowed to walk all the way around the metal detector with a wink and a nod to the grinning deputies. The list of exemptions from security screening goes on and on. The basic rule is this: If you are a friend of Sheriff Rowe, you may pass. The sheriff does not seem to consider private lawyers his friends.

Lubbock lawyers who travel I-27 north on business are greeted with a smile by the deputies at the Hale County Justice Center. We simply flash our bar cards and saunter through the security gates. It is the same story farther north at the Randall County Justice Center and the Potter County Courthouse. Most of the smaller counties on the South Plains have yet to install electronic security, so no time is wasted worrying about security clearances when venturing into the hinterlands.

Lubbock lawyers wonder why we are considered a threat at home but not abroad.

The Lubbock County Frequent Courthouse Visitors Badge Program

Well before the new security measures were implemented, mem­bers of the Lubbock Criminal Defense Lawyers Association (LCDLA) met informally with the sheriff in an attempt to establish a procedure to allow private attorneys to bypass security devices. The Tarrant County Criminal Defense Lawyers Association—which spent many years lobbying for a similar badge program that was finally approved in 2015—provided advice, forms, and other assistance. Meetings with the sheriff continued for months, eventually involving the leadership of the Lubbock Area Bar Association (LABA) and then-state senator Robert Duncan to promote a bypass system. However, in October 2012, the sheriff decided private attorneys would not be included among those exempted from his security procedures.

Within a month, the entire Lubbock legal community began a concerted effort to establish a security bypass program to be pre­sented for approval to the Lubbock County Commissioners Court, pursuant to Government Code § 291.010. With LABA and LCDLA as co-sponsors, six bar organizations, representing more than 500 local and area lawyers, joined in the planning and formulation of the Lubbock County Frequent Courthouse Visitors Badge Program (LCFCV).22 The venerable Harris County badge system was used as a template. The LCFCV plan would require applicants to demonstrate frequent use of the courthouse and to undergo a background check. A small fee would be charged for a badge identical to badges used by others exempted from screening.23

Lubbock County Commissioners were individually briefed on the proposal in the fall of 2013, and LCFCV committee members participated in a work session with the full Commissioners Court in early 2014.24 A majority of the commissioners seemed to favor the proposal. Later, LCFCV committee members again met with Sheriff Rowe—at the request of the commissioners—in an attempt to reach a consensus regarding the badge request. The sheriff assured the committee members he would get back to the bar with an agreeable solution, but he never did.

Instead, the sheriff provided the commissioners with a classified report titled “2014 Courthouse Security Review.” After receiving the report in the spring of 2014, commissioners privately informed LCFCV committee members they would not support the LCFCV program. The committee postponed a formal public presentation to the commissioners and requested a copy of the secret report via a Texas Public Information Act request. The open records request was rejected by Lubbock County authorities and upheld by the Texas Attorney General, citing homeland security concerns.

Undeterred, the bar pressed the Lubbock County Commissioners Court for a vote on the proposal. A formal public pre­sentation was rescheduled for October 13, 2014. A media campaign in anticipation of the vote drew favorable public attention to the proposal. Meanwhile, the sponsoring bar associations galvanized their members to lobby individual commissioners, to write letters of support, and to appear and speak at the presentation. On the eve of the meeting, however, the commissioners unexpectedly dropped the proposal from the agenda with a promise to study the issue carefully before rescheduling the matter for consideration.25

The Lubbock County LCFCV effort continues, but the sheriff seems dead-set against giving private lawyers fair access to the courthouse. The commissioners, who have statutory authority to trump the sheriff on this issue, seem unwilling to buck the sheriff. Advocates are exploring new ideas to convince the county fathers to do the right thing.

The Case for Lawyer Badge Access

The main reasons private lawyers should have fair access to courthouses seem obvious. As noted above, it is unfair for certain officers of the court to be treated differently than others. A common scenario illustrates the problem. As a prospective juror shuffles through electronic security shoulder to shoulder with a criminal defense lawyer, a prosecutor and a judge are buzzed through by the courthouse deputies. When the juror later appears in a courtroom with the same three officers of the court, the perception is clear the criminal defense lawyer is less trustworthy than the other two, and maybe a little dangerous. Justice cannot be served under these circumstances.

Also, as discussed above, the checks Texas lawyers write on behalf of their clients every day for court costs pay for electronic courthouse security. If lawyers can be trusted to fund electronic security, why can they not be trusted to bypass electronic security?

On a more practical level, when private lawyers are granted security bypass status, security personnel are able to devote much more attention to those likely to pose a danger at the court­house. Further, since private lawyers make up the largest bloc of courthouse visitors, granting bypass status eases congestion problems at courthouse entrances, especially first thing in the morning and after the noon recess.

As Brazos County Sheriff Christopher Kirk stated when he recommended a bypass program: “First and foremost, it enhances security through the use of background checks on participating individuals . . . It improves the capabilities of security personnel to be more observant and alert with fewer people going through the scanning process.”26

Travis County Sheriff Greg Hamilton agrees, “This privilege is meant to expedite our justice system’s level of service to the people of Travis County, Texas.”27

Perhaps the best evidence favoring a badge program is the experience in Harris County. For more than 20 years, the third most populous county in the entire nation has allowed lawyers who have passed a background check to bypass courthouse se­curity, with no serious repercussions.28

Lawyers are not security risks. Lawyers are part of an adversary system designed to be propelled by the written and spoken word, not by physical violence. Others involved in the justice system, like peace officers, are trained to use physical force as part of their jobs, and it is a fair bet civil servants are much more likely to “go postal,” at one point or another, than lawyers. Yet civil servants and peace officers are routinely given free access to courthouses, when private lawyers are not.

The Case Against Lawyer Bypass Badges

The path to reasonable courthouse access is likely to be littered with roadblocks. The bottom line is this: Many sheriffs do not trust lawyers. Every Texas sheriff is entrusted with enforcing courthouse security, and every Texas sheriff is a part of an adversary system in which law enforcement often perceives attorneys as the “bad guys.” Thus, security proposals backed by lawyers—particularly criminal defense lawyers—are often viewed by sheriffs as suspicious.

Lubbock County Sheriff Rowe has battled the effort in a number of ways, attempting to justify his opposition through a litany of untenable positions. First, he was skeptical about how background checks would be conducted and whether the checks could be trusted, until he was confronted with how efficiently the Harris County program’s background checks worked. Next, he worried lawyers could lend badges to unauthorized persons. It was pointed out to the sheriff the bypass badge system currently in place runs the same risk in the event courthouse employees wanted to lend badges to unauthorized persons. He was concerned that no supervisor or boss would closely monitor a private lawyer’s mental and emotional health. Therefore, lawyers have no one with the ability to predict when a lawyer might go crazy, flash a badge to enter the courthouse, and then “go postal.” (We are not making this up.) The sheriff’s “no supervisor” complaint has been his main objection to the LCFCV, even though some private lawyers do have bosses. He was also made aware of the protections afforded by the Texas Lawyers Assistance Program of the State Bar of Texas.29 (Proponents have observed that the sheriff, like many lawyers, has no supervisor. Using the sheriff’s logic, shouldn’t his bypass badge be revoked?)

The sheriff has concern the LCFCV proposal would include non-lawyers. He fears the program would include anyone who wants a badge, opening a Pandora’s Box of security clearances. He ignores the proposal’s application/background check process and the fact an applicant must be a frequent visitor to the courthouse. His position implies he would have no problem with the LCFCV program if it applied only to lawyers, but it seems obvious that is not the case. (Though the proposal allows non-lawyers to apply for badges, proponents have no objection to limiting the program to lawyers.)

The sheriff doubts the accuracy of statistics provided by the LCFCV committee in its proposal, questioning the authenticity of the information regarding which counties have and do not have security bypass programs implemented in their courthouses. Yet the information has been verified several times.

Additionally, the sheriff has expressed a fiscal objection to the proposed LCFCV program. He claims the program would force him to hire additional deputies to safeguard the halls of the courthouse from the lawyers who bypass security. Yet nothing in the proposal would cost the county a dime or necessitate any modification of the current electronic security process. Clearly, the sheriff knows labeling LCFCV as a budget-buster will influence County Commissioners against the proposal.

In his most bizarre position, the sheriff claims he prefers a courthouse security program that would allow everyone into the courthouse, but there would be new security checkpoints at the entrance to each individual courtroom. (The Lubbock County Courthouse contains 18 courtrooms.) This would require the purchase of substantially more electronic equipment and the hiring of many additional deputies, which the commissioners will not fund. Incredibly, his proposal would forego the security already implemented at the courthouse and truly allow everyone open access to the courthouse. Only access to the actual courtrooms would be controlled. The sheriff’s position seems to indicate he is not concerned about securing the hallways of the courthouse—only the courtrooms. Which raises the question: If people can be trusted to wander the hallways of the courthouse unfettered, why such opposition to the LCFCV program?

Ostensibly, the sheriff’s most convincing argument against lawyer bypass badges is this: “You guys have always been screened at the federal courts building. Why should the county courthouse policy be different?” A good answer: “The feds are wrong, too.” A better answer: “The people who made that decision at the federal building don’t have to run for re-election. You do, sheriff.”

Tactics and Resources Available for Courthouse Access Efforts

Although Lubbock County is the current “poster boy” for failure to achieve fair access to the courthouse, the LCFCV committee has gathered a great deal of valuable information in the effort to obtain private attorney bypass badges. The following tactics and resources should be considered when the time comes to convince the powers-that-be to liberate lawyers entering the courthouse.

Texas Public Information Act

It is crucial to know which people bypass security with a badge at the county’s courthouse while lawyers are being denied the right to have one. Close scrutiny of those granted bypass privileges will likely reveal individuals who probably should never have been considered for the privilege. A request under the Texas Pub­lic Information Act (“the Act”) asking for a list of persons who have a badge and any applications or forms filled out to receive the badge should provide knowledge of who can bypass security while lawyers stand on the sidelines and look on.30

The Act gives the public the right to request access to government information.31 Moreover, the Act prohibits a governmental entity from inquiring into the reasons or motives for requesting the information.32 The request should be directed to the officer who controls “access” to the courthouse, typically the sheriff—each elected county officer is the officer for public information and the custodian of his or her public information.33 There are no magic words required to trigger a request under the Act.34 The request may be made via email, fax, or traditional post.35 The request may also be verbal.36 However, to avoid a delay, it is best to make the request in writing.37 Also, do not request a photocopy of any badges, as they are confidential and not subject to the Act.38

Information requested must be in existence as of the date of the request.39 The officer for public information must “promptly” produce public information in response to an open records request.40 It is a common misconception that there is a wait of ten business days before releasing the information.41

County officials may assert an exception under the Texas Homeland Security Act. As part of the Texas Homeland Security Act, Sections 418.176–418.182 were added to Chapter 418 of the Government Code.42 These provisions make certain information related to terrorism confidential. Chapter 418 is a statute that can be asserted under Government Code § 552.101 as “information considered to be confidential by law, either constitutional, statutory, or by judicial decision.”43 Citing the “Homeland Security Act” statute, the county’s public information officer may immediately deny a request for information about bypass badges and who holds them.

However, do not relent. Mere recitation of the statute’s key terms is not sufficient to demonstrate the applicability of the claimed provision.44 The fact it may appear the requested information may relate to the security concerns of the sheriff or courthouse administration does not make the information per se confidential.45

Should county officials assert this exception, they would need to comply with the procedural requirements of Government Code § 552.301 and request an attorney general decision.46 The county officials asserting these sections would need to adequately explain how the responsive records fall within the scope of the Texas Homeland Security Act.47 The attorney general must make a decision on the request “not later than the 45th business day after the date the attorney general received the request for a decision.”48

Through Texas Public Information Act requests, the LCFCV committee learned there were more than 500 bypass badges issued in a three-year period. Moreover, the committee learned there is an average of 425 badge “swipes” each day to bypass security at the Lubbock County Courthouse. (The 425-swipe total does not count those who are exempted from screening without badges, such as peace officers.) Knowing how many people possess a bypass badge could allow counterpoints to the idea the security checkpoints are required of virtually every­one—which is not the case in Lubbock. Additionally, with this information in hand, proponents of the LCFCV proposal wonder: With hundreds already bypassing screening each day, what harm could be caused if a few more inoffensive officers of the court bypass security?

Tracking Courthouse Security Incidents

Article 102.017(f) of the Texas Code of Criminal Procedure requires all counties to report courthouse security incidents each year. Reports for each county may be accessed at You will likely find very few security incidents were reported, whether your county has electronic security or not. You will also likely find no reports of lawyers being involved in courthouse security incidents.

In 2010, before electronic security was implemented, Lubbock County reported three security incidents at the courthouse. There were none reported in 2011, none in 2012, and six in 2013.49 No reported incident involved violence, and no reported incident involved a lawyer. Meanwhile, the LCFCV committee has documented several incidents involving abusive tactics employed by Lubbock County Sheriff’s Office courthouse deputies targeting lawyers and laymen since 2011.50

Political Arm-Twisting

The county sheriff and the commissioners are politicians highly motivated to win re-election. Find out the names of their campaign donors—many donors are likely to be lawyers sympathetic to fair courthouse access.51 Donors should be contacted and asked to support efforts to authorize a bypass program for frequent visitors (e.g., lawyers) to the courthouse. Ask donors to contact the politicians, and provide the donors with background information and perhaps form letters to be written to the sheriff and commissioners.

Many local and statewide offices are held by influential lawyers sympathetic to fair courthouse access. These politicians should be encouraged to contact the sheriff and the commissioners to support fair courthouse access efforts.52

Ask for the support of the county attorney/district attorney/criminal DA. Contact the local board of judges and ask them: Do you find criminal defense lawyers to be a threat to the security of this courthouse?53 If the sheriff and every commissioner are buttonholed by lawyers and others wanting fair access to the court­house several times each day, the cumulative effect might eventually bring success.

Public Relations/Publicity

Building a coalition of lawyers may be helpful to convince the local sheriff or county commissioners to authorize a screening bypass program. Most larger counties have a variety of bar organizations, including a criminal defense lawyers association, Texas Young Lawyers Association, trial lawyers, women lawyers, etc. Members of these organizations will be sympathetic to efforts to liberalize courthouse access, so getting these bar associations on board should not be a difficult task. In Lubbock County, each of the six local bar associations signed resolutions in favor of the LCFCV program and each association enthusiastically lent support.

When the LCFCV committee began promoting the program to the local media, the most common reaction from reporters was: “The sheriff makes lawyers go through screening to get into the courthouse, but he allows just about everyone else to bypass security? You’re kidding me!” Each story or article published gave favorable coverage to the LCFCV.54

The Idiot Lawyer Problem

The “one bad apple spoils the barrel” maxim applies to private attorneys. As a justification for screening all lawyers, opponents of badge programs will certainly identify a few idiot lawyers who have pulled stupid stunts in the courthouse. In Lubbock County, a lawyer (with a concealed handgun permit) absentmindedly carried his handgun into the courthouse years ago. More recently, a lawyer abused rules prohibiting non-lawyers in certain areas of the courthouse by taking clients and family mem­bers into the restricted areas. The answer to the problem, of course, is to with­hold badges from known offenders (through background checks) or to take away the badges of the offenders. Good lawyers should not be punished for the sins of idiot lawyers.


In 1996, TCDLA member Michael Gibson filed a writ of habeas corpus, alleging the El Paso County Courthouse electronic security system violated his constitutional and statutory rights. The Court of Appeals denied relief in a wide-ranging decision interpreting the United States and Texas Constitutions, and Articles 14 and 15 of the Texas Code of Criminal Procedure.55 The opinion includes an excellent review of the law on the subject, but the bad news is there appears to be no legitimate civil cause of action to obtain unfettered access to the courthouse.56


There is no good reason lawyers should be denied fair access to their workplaces. Nor should lawyers be subjected to a quirky mishmash of capricious screening policies in courthouses across the state. The collection and sharing of information on efforts to implement progressive courthouse security policies should be something we all strive for, either as individuals or collectively through TCDLA.


1. Of the 254 Texas counties, researchers seeking information from county judge offices about courthouse security policies ran into problems in about 20 jurisdictions. Researchers could not reach several county judge offices by tele­phone despite numerous calls, and some offices had no answering services. Others refused to return repeated calls. Researchers asking the simple question, “Does your courthouse have electronic security?” were asked to submit to background checks by some county officials.

2. The map associated with this article is an illustration of the known courthouse security policies of Texas counties. The map and information contained in this article were compiled through independent surveys conducted by the Lub­bock Area Bar Association’s Courthouse Security Committee via the TCDLA list­serve and by inquiries of county office holders and lawyers across the state in 2014–2015.

3. LABA Courthouse Security Committee Survey 2014–2015.

4. Dave Schulman wrote a wry blog on the subject a couple of years ago in the Texas Law Reporter: “Courthouse Security Screening: Is There a Method to This Madness?” 45 Tex. L.Rep. (2013), available at

5. “Gunman Kills 2 Men and Injures 3 in Rampage at Texas Courthouse,” New York Times (Jul. 2, 1992),

6. “Texas Executes Former Lawyer Who Killed Two in Courtroom,” New York Times (Sep. 21, 1994),

7. Id.

8. Id.

9. Tex. H.B. 667, 79th Leg., R.S. (2005).

10. Tex. Code Crim. Proc. § 102.017.

11. Tex. Gov’t Code § 101.0615 (West 2005).

12. Comm’rs Court of Caldwell County v. Criminal Dist. Attorney, Caldwell County, 690 S.W.2d 932, 933 (Tex. App.—Austin 1985, writ ref’d n.r.e.).

13. Randall County Comm’rs Court v. Sherrod, 854 S.W.2d 914, 921 (Tex. App.—Amarillo1993, no writ).

14. Commissioner’s Court, Budget of Harris County, Fiscal Year 2014 (2013). Available at

15. Commissioner’s Court, Budget of Lubbock County, Fiscal Year 2014 (2013). Available at:

16. Commissioner’s Court, Budget of Coryell County, Fiscal Year 2014 (2013). Available at

17. Anderson v. Wood, 137 Tex. 201, 204, 152 S.W.2d 1084, 1085–86 (1941).

18. Tex. Att’y Gen. Op. No. O-2444 (1940).

19. Tex. Loc. Gov’t Code Ann. § 291.010 (West 2005).

20. Tex. Loc. Gov’t Code Ann. § 291.010, amended by H.B. 3003, 82nd Leg., Reg. Sess. (Tex. 2011).

21. The sheriff’s current courthouse screening policy may be accessed at; see “Lubbock County Courthouse Screening Policy for Department Heads,” Lubbock Crim. Def. Law. Ass’n. (Apr. 15,2014),

22. The program is co-sponsored by the Lubbock Area Bar Association (LABA) and the Lubbock Criminal Defense Lawyers Association. In addition, the Lubbock County Young Lawyers Association, the Lubbock Women Lawyers Association, the South Plains Trial Lawyers Association, and the West Texas Bank­ruptcy Bar Association have passed resolutions in favor of the measure.

23. The LCFCV program may be accessed at The LCFCV would create a program in which lawyers may undergo a voluntary background check and be issued an identification badge each year, which would allow access to the Lubbock County Courthouse without being required to be electronically screened. The badge program would be administered by the Lubbock Area Bar Association or the Lubbock County Court Administrator. A small fee would be charged for a visitor’s badge.

24. Members of the LCFCV Program committee include Lubbock lawyers Gary Bellair, Charles Blevins, Aaron Clements, Bob Craig, Bill Franklin, Sarah Gunter (vice chair), David Hazlewood, Dan Hurley, Chuck Lanehart (chair), Anna McKim, Mark Snodgrass, Fred Stangl, Steve Stone, Tommy Turner, and Bill Wischkaemper.

25. Gabriel Monte, “Presentation for Frequent Visitor Program at Lubbock County Courthouse Postponed,” Lubbock Avalanche J. (Oct. 8, 2014),

26. Letter from Brazos County Sheriff Kirk to Brazos County Commissioners, October 3, 2011.

27. Travis County Sheriff’s Office Courthouse Security 2015–2016 Attorney Identification Card Application.

28. Resident Population Estimates for the 100 Largest U.S. Counties Based on July 1, 2011, Population Estimates: April 1, 2010, to July 1, 2011, U.S. Census Bureau, (last visited Mar. 2, 2015).


30. This information is narrowly tailored for the request of badges and may not apply to all types of information available under the Texas Public In­formation Act.

31. Tex. Gov’t Code Ann. § 552.001 (West 2005).

32. Id., § 552.222.

33. Id., § 552.201.

34. Moore v. Collins, 897 S.W.2d 496 (Tex. App.—Houston [1st Dist.] 1995).

35. Gov’t § 552.301(c) (West 2005).

36. Id.

37. Open Records Decision No. 304 at 2 (1982) (A government entity that receives a verbal request for information can require the request be written).

38. Gov’t § 552.139.

39. Id., § 552.221(a); see Dominguez v. Gilbert, 48 S.W.3d 789 (Tex. App.—Austin 2001, no pet.); Tex. Att’y Gen. OR2000-665.

40. Gov’t § 552.221(a); see Dominguez v. Gilbert, 48 S.W.3d 789 (Tex. App.—Austin 2001); Open Records Decision No. 665 (2000).

41. Dominguez, 48 S.W.3d 789.

42. Gov’t § 418.176.

43. Id., §552.101.

44. Tex. Att’y Gen. OR 1996-649 at 3.

45. Id.

46. Gov’t § 552.301.

47. See, generally, Id., § 552.301(e)(1)(A).

48. Id., § 552.306(a).

49. The Office of Court Administration website,, reports incidents of courthouse violence statewide. The 2014 county-by-county statistics are not yet available, but the number of security-related courthouse incidents statewide for 2014 totals 132.

50. One such incident occurred in the spring of 2014. Lubbock lawyer Terri Morgeson complained to Sheriff Rowe that one of his courthouse security deputies was abusive to her as she passed through screening. She wrote a letter in which she warned the sheriff never to arm the deputy, as he would surely harm someone. The sheriff ignored the letter, and the deputy remained on duty. A cou­ple of months later, the deputy was arrested for discharging a firearm in a mu­nicipality and was fired from the Sheriff’s Office. He was later convicted of the Class A misdemeanor, was placed on probation, and was required to surrender his peace officer’s license. The sheriff has never acknowledged his lapse in judgment, nor has he apologized to the lawyer involved.

51. Candidates for sheriff and county commission are required to file annual personal financial disclosure statements with the county clerk. The statements must be made available for public inspection during regular business hours. Local Gov’t Code §§ 159.003, 159.052.

52. Lubbock County proponents are indebted to former State Senator Robert Duncan (current chancellor of the Texas Tech University System) and former Texas State Board of Education member Bob Craig, both of whom lobbied the sheriff for lawyer bypass badges. More recently, retired United States Magistrate J. Q. Warnick Jr. also assisted in the effort.

53. Lubbock County proponents of the LCFCV program were disappointed that the local CDA, Matt Powell, and the Lubbock County Board of Judges re­fused to support the program. However, several judges promised to lobby the Lubbock County Commissioners in support of the program, including Judges Trey McClendon, Judy Parker, and Mark Hocker.

54. Gabriel Monte, “Skip the Line: Lubbock Defense Attorneys Propose By­pass Program for Frequent Courthouse Visitors” (Sep. 24, 2014); “Lubbock County Courthouse Regulars Asking for Speedy Screening Process,” FOX 34 News (Oct. 10, 2014),

55. Gibson v. State, 921 S.W.2d 747, 754 (Tex.App.—El Paso 1996, writ denied).

56. Id.

September 2015 Complete Issue – PDF Download



18 | “Most People Call Me Charlie”  – By Mark Stevens
22 | Going to Prison in Texas in 2015, Part 1 – By William T. Habern, David P. O’Neil & Debra Bone
32 | We Need Those Stinking Badges: Courthouse Security for Texas Lawyers 101 – By Chuck Lanehart, Sarah Gunter & Charles Blevins

7 | President’s Message
9 | Executive Director’s Perspective
13 | Federal Corner
16 | Said & Done

4 | TCDLA Member Benefits
5 | CLE Seminars and Events
40 | Significant Decisions Report

President’s Message: Twin Peaks Justice – By Samuel E. Bassett


Waco—home of the Baylor Bears, the Texas Ranger Museum, the Dr. Pepper Museum, and venue to one of the most controversial events in the criminal justice history of Texas. Is another case unfolding that will rival the Branch Davidian debacle?

In 1993, the Branch Davidian standoff captured the nation’s attention as a botched attempt at a federal law enforcement raid resulted in a standoff that lasted weeks. In the end, 76 people died as federal agents moved on the compound. To this day, there are disagreements as to the wisdom of the move and who was at fault for the fire that killed dozens. Ultimately, there was a trial with surviving members of the Branch Davidian sect in Federal Court. Many of our leaders were part of that trial team—Gerry Morris, Tim Evans, Jeff Kearney, Doug Tinker, Joe Turner, Robert Hirschhorn, to name a few. Dick DeGuerin entered the compound before the fire to meet with his client, David Koresh. Koresh died during the raid that ended the stand­off. It was a test of our criminal justice system—albeit in Federal Court. I recall Doug Tinker’s words after the trial: “I love my country but in this case I hate my government.”

Fast forward to May 17, 2015, when almost 180 individuals are arrested following a confrontation between rival biker gangs and law enforcement in the parking lot of a Twin Peaks Restaurant in Waco. Nine people lay dead and several others wounded. Capital Murder charges are filed. Unlike the Branch Davidian fiasco, this case falls under the jurisdiction of State District Courts in McLennan County. It was striking how quickly and aggressively law enforcement leaders stepped in front of cameras to report their version of events. Soon thereafter, a Justice of the Peace set identical bonds of $1,000,000 each for all those charged.

We now know the District Attorney’s office assisted law enforcement in drafting the probable cause affidavits in “cut and paste” style as to each defendant. The pace of reviewing and revising the bonds for the individual defendants was inexcusably slow. No one in McLennan County seemed to want any outside assistance. Ultimately, the District Attorney’s Office lowered almost all of the bonds. Attorneys involved quickly filed writs, motions to recuse, and civil suits. In the past two weeks, a new grand jury was seated with Waco Police Detective James Head selected as foreman. This same detective had some role in the investigation of the cases. Will this same grand jury consider this case? If so, can it be more apparent that McLennan County is simply not equipped to handle these cases in a manner that meets some modicum of fairness and due process?

As I write this column, I realize we are just seeing the first chapters of what will be several revelations about the facts of the case and the process to be implemented in the prosecutions. Examining trials have been requested, and there is movement toward a Visiting Judge to preside over examining trials. Many of our members, including Clint Broden, are on the front lines against what appears to be an insular and parochial criminal justice establishment. What is TCDLA doing? In May, in the days following the arrests and setting of bonds, President Emmett Harris penned an open letter regarding the case to the media. As events unfolded, TCDLA held a round table forum for attorneys involved in the Waco cases at the Rusty Duncan course in San Antonio. Following those events and following the grand jury issue noted above, I wrote a letter regarding the selection of Detective Head as foreman. In mid-July, a Waco Biker Case Task Force was formed with Board members Jim Darnell (El Paso), Carmen Roe (Houston), and Susan Kelly (Waco). The task force’s purpose is to respond as quickly as possible to appropriate requests for assistance from those involved. TCDLA will release another open letter communication, urging that an independent grand jury consider the indictments in this case.

This case is important to TCDLA and to all Texans. We cannot permit rubber-stamp justice and short-circuiting of Due Process. I am proud of members involved in representation, and I am proud to be involved in an organization that continues the fight against a system in disrepair. I have no doubt that many inno­cent citizens were arrested on May 17, 2015. I believe that many were overcharged. I also believe that a minority of those involved are likely guilty of some wrongdoing. Some important questions remain to be answered—such as how many law enforcement officers acted improperly in firing their weapons on May 17, 2015, and were those actions justified? As this unravels, TCDLA will continue to fight for the rights of all Texans, especially those accused of crime.

Executive Director’s Perspective: Falling Forward – By Joseph A. Martinez


Special thanks to our course directors Gary Udashen (Dallas) and Mike Ware (Fort Worth) for the TCDLA Innocence 101: Clinical Practice CLE held in Austin in August. Thanks to their efforts we had 139 attendees.

Special thanks to Grant Scheiner (Houston) and Danny Easterling (Houston), our course directors for 13th Annual Top Gun seminar held in Houston in the Harris County Jury Assembly Plaza. Thanks to their efforts we had 156 attendees. Grant and Danny started Top Gun 13 years ago to train lawyers in Harris County and surrounding counties on the most up-to-date science data and legal defense in the DWI arena. We thank them for their dedication to Justice.

Special thanks to Warren Wolf (San Antonio), president of the San Antonio Criminal Defense Lawyers Association (SACDLA), for SACDLA allowing TCDLA/CDLP to co-sponsor their Against All Odds: Winning Trial Strategies seminar held in August in the Central Jury Room. Thanks to Patricia Jay, course director for the seminar. Thanks to everyone’s efforts we had 79 attendees.

We ask you to help promote TCDLA membership and encourage your colleagues to join TCDLA.

Weren’t able to attend this year’s Rusty Duncan event? You can order the DVD and get CLE credit. Please go to our website for more information and to order.

Do you need CLE credit and can’t attend our seminar training? Please call the Home Office for a list of the DVDs and accompanying CLE credit.

Don’t have a local criminal defense bar in our area? Want to re-energize and jump-start your organization? Are you interested in forming a local criminal defense bar? Need help getting organized? Please contact Susan Anderson (Dallas), , Laurie Key (Lubbock), , or Carmen Roe (Houston), ,  co-chairs of the TCDLA Affiliate Committee.

Good verdicts to all.

Federal Corner: And What Is an LPR System? – By F. R. Buck Files Jr.


On August 7, 2015, the United States Court of Appeals for the Eighth Circuit affirmed the defendant’s conviction and held that, as a matter of apparent first impression, an alert registered by a license plate recognition (LPR) system which a police officer used to scan license plates of nearby cars provided reasonable suspicion of criminal activity of a kind supporting an investigatory stop of a vehicle. United States v. Williams, ___F.3d___, 2015 WL 4666312 (8th Cir. 2015) [Panel: Circuit Judges Gruender, Beam, and Benton (opinion by Gruender)].

A Brief Synopsis of the Facts

Law enforcement officers use a license plate recognition (LPR) system to scan the license plates of cars that are within the range of cameras mounted on their patrol cars. If a scanned plate is connected to a wanted person, the system can generate an alert.

That is what happened when Officer Jennifer Hendricks of the St. Louis Metropolitan Police Department drove a patrol car that was equipped with the LPR system and scanned a license plate. An alert showed that Otis Hicks was wanted by a law enforcement agency in another county for the offense of first-degree domestic assault. The alert also warned that Hicks might be armed and dangerous; however, it did not explain how or when Hicks was associated with the car.

Hendricks pulled the car over and saw that there were two men inside. She approached the car and asked the driver for his license. When he produced it, she realized that she had stopped Otis Hicks. Hendricks called for backup and Officer David Christensen came to the scene. He approached the car and directed the passenger to step out and present identification. When he did, Christensen learned that the passenger’s name was Lawrence Williams. Christensen noted that Williams placed his hand on his waistband twice and that his hands were “shaking uncontrollably” as he furnished his identification. A pat-down search of Williams produced a handgun from his waistband and a bag in Williams’ pocket that contained heroin.

Williams was indicted for possessing a firearm as a felon. His lawyer filed a motion to suppress the handgun and the heroin seized by Officer Christensen. An evidentiary hearing was conducted by Magistrate Judge Terry I. Adelman, who recommended the denial of Williams’ motion to suppress. United States District Judge Audrey G. Fleissing of the Eastern District of Missouri adopted this recommendation. After a jury trial, the defendant was convicted and, thereafter, gave timely notice of appeal.

Judge Gruender’s opinion reads, in part, as follows:

[Williams’ Lack of Reasonable Suspicion Argument]

Williams first argues that Officer Hendricks lacked reasonable suspicion to stop the car. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Brendlin v. California, 551 U.S. 249, 255–57, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). According to Williams, because Officer Hendricks lacked reasonable suspicion to stop the car, the handgun and heroin were fruits of an illegal stop and should have been suppressed. See generally Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

[The Fourth Amendment and Reasonable Suspicion]

We review the district court’s factual findings for clear error and its legal conclusions de novo. United States v. Farnell, 701 F.3d 256, 260 (8th Cir.2012). “The Fourth Amendment permits an investigative stop of a vehicle if officers have a reasonable suspicion the vehicle or its occupants are involved in criminal activity.” United States v. Bell, 480 F.3d 860, 863 (8th Cir.2007). If police have reasonable suspicion, they “may briefly stop an individual and make reasonable inquiries aimed at confirming or dispelling the suspicion.” United States v. Hughes, 517 F.3d 1013, 1016 (8th Cir.2008). “Reasonable suspicion must be supported by more than a mere hunch, but the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying the preponderance of the evi­dence standard.” United States v. Roberts, 787 F.3d 1204, 1209 (8th Cir.2015) (internal quotation marks and citation omitted). “We consider the totality of the circumstances when determining whether an officer has a particularized and objective basis to suspect wrongdoing.” United States v. Robinson, 670 F.3d 874, 876 (8th Cir.2012).

[The Fourth Amendment Issue with the LPR System]

Officer Hendricks relied upon the notice from the LPR sys­tem that: (1) Hicks was associated with a nearby car, (2) Hicks was wanted by the St. Louis County Police Department for first-degree domestic assault, and (3) Hicks may have been armed and dangerous. Williams nonetheless argues that Officer Hendricks did not have reasonable suspicion to conduct the traffic stop because a “police officer who receives an alert from the LPR system has no way of knowing the extent of the person’s relationship to the vehicle.” Williams and the Government seem to agree that there are no reported federal decisions that have specifically dealt with the use of an LPR system in the Fourth Amendment context. However, as we have held, “if a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bul­letin justifies a stop to check identification, to pose questions to the person, or to detain the person briefly while attempting to obtain further information.” Farnell, 701 F.3d at 262 (internal alteration omitted) (quoting United States v. Smith, 648 F.3d 654, 659 (8th Cir.2011)). “Police officers may rely upon notice from another police department that a person or vehicle is wanted in connection with the investigation of a felony ‘when making a Terry stop, even if the notice omits the specific articulable facts supporting reasonable suspicion.’” Smith, 648 F.3d at 659 (internal alteration omitted) (quoting United States v. Jacobsen, 391 F.3d 904, 906 (8th Cir.2004)).

[The LPR System Automates Other Means of Receiving Information]

We fail to see how the use of the LPR system makes any dif­ference in this case. Williams does not cite any pre­ce­dent holding that the mechanism through which an officer receives notice from another department matters for Fourth Amendment purposes. Indeed, the LPR system merely automates what could otherwise be accomplished by checking the license-plate number against a “hot sheet” of numbers, inputting a given number into a patrol car’s computer, or “calling in” the number to the police station. Thus, we conclude that Officer Hendricks was entitled to “rely upon notice from another police department,” she obtained by using a more automated process: the LPR system. See id. at 656–60 (upholding a police officer’s reliance on a wanted notice he discovered by performing a search on a license-plate number).

[Officer Hendricks’ Decision to Stop the Car Did Not Constitute a Fourth Amendment Violation]

Williams argues further that Officer Hendricks’ stop violated the Fourth Amendment “because she could not tell who was driving the car until after she stopped it.” Williams asserts, without citation, that Officer Hendricks must “have [had] some idea at least that there [was] a black male driving the car” before making the traffic stop. Officer Hendricks testified that she was unable to see who was inside the car until after she stopped it. Common sense dictates that police officers will often be unable to confirm the race or gender of a driver before initiating a traffic stop. Accordingly, we fail to see how Officer Hendricks’ decision to briefly stop the car and check the driver’s identification was an unreasonable seizure in violation of the Fourth Amendment merely because she initially could not identify the driver’s race or gender. See Farnell, 701 F.3d at 262.

[Hendricks’ Stopping of the Car Without Information of When Hicks Had Been Associated with the Car Did Not Constitute a Fourth Amendment Violation]

Williams concedes that Hicks was “perhaps associated with the car” but nonetheless argues that the stop violated the Fourth Amendment because Officer Hendricks “had no information of the time frame of when Hicks had been associated with the car.” But our precedent makes clear that “officers may rely upon notice from another police department that a person or vehicle is wanted in connection with the investigation of a felony ‘when making a Terry stop, even if the notice omits the specific articulable facts supporting reasonable suspicion.’” Smith, 648 F.3d at 659 (internal alteration omitted) (quoting United States v. Jacobsen, 391 F.3d at 906). Accordingly, this argument is without merit.

My Thoughts

When I read Williams, I felt like a complete goose because I had never heard of a license plate recognition system. I talked with a Tyler police officer who had a background in working both narcotic and traffic cases. He told me that the Tyler police officers and Tyler city marshals all have LPR systems in their ve­hicles. He went on to say that the city marshals spend a great deal of time driving around and scanning license plates. This puzzled me because I was unaware of any cases coming out of these LPR scans.

  • I went into WestLaw’s allfeds database, ran the query “LPR” & “license plate recognition,” and came up with over 1,000 cases. Almost all of them, however, were immigration cases concerned with lawful permanent residents. If you simply run the query “license plate recognition,” you will find only 13 cases. The only circuit case was Williams. There were two other Williams cases heard by Judge Fleissing in the dis­trict court. There are two additional district cases from Pennsylvania and Tennessee. The other eight cases are civil in nature. The only case out of the Fifth Circuit is a 42 U.S.C. § 1983 case from the Northern District of Texas.
  • I am amazed that law enforcement officers are not taking advantage of the LPR system. Clearly, an alert would provide the basis for an investigatory stop—and we all know what that can lead to. When law enforcement officers wake up to the possibilities of using the LPR system, it will result in our having even more cases with a Fourth Amendment issue that we can raise—with probably little chance of success.

Said & Done



Congratulations to Jeff Blackburn of Amarillo for receiving the Champion of Justice award from TCDLA at the TCDLA Innocence 101: Criminal Practice seminar in Austin in August. The award was given for his work in the posthumous exoneration of Tim Cole and the resulting legislation. As Chris Hesse noted in suggesting Jeff for inclusion here: “While most of us consider ourselves pretty good attorneys who work hard and make a difference in the lives of our individual clients, there are a few attorneys out there who affect systematic change. Jeff Blackburn is one them.” Kudos, Jeff, for your continued exellence.

Zeke Tyson of Dallas got some good news after three days of trial of a D on two counts of aggravated assault with a deadly weapon: not guilty on one count, guilty on the other count. Based on D’s lengthy criminal history, the legal range of punishment was 25 to life. Zeke argued that this was overkill and the jury agreed, sentencing him to the minimum sentence, two years. As Zeke noted, “He literally got back 23 years of his life today.” Kudos for your spirited defense, Zeke.

Bobby Mims sends along word of a couple notable successes of TCDLA members. In the first, Jason Cassel defended an Arson Capital Murder case in Harrison County. The state brought three state fire marshals for witnesses against his client. Jason was able to cross-examine based on the new science of Arson Investigations. With two witnesses left before the state rested, the plea offer changed from Capital Life to five years on a plea of nolo contendre. With time credit, his client is immediately parole eligible.
 In the second, Thad Davidson was representing a drug defendant in Cherokee County on an enhanced 1st Degree with 25-year minimum. After extensive investigation, Thad was able to prove the officer lied on his search warrant affidavit—a setup. Rather than file an adversarial Motion to Suppress, Thad took his information and evidence to the DA. After an independent investigation confirmed Thad’s findings, the DA immediately dismissed that case. The offending officer’s name has been shared by the crim­i­nal bar and his credibility is now impeachable. The DA will likely never take another case from this officer. Kudos to Jason and Thad—and also to the Cherokee County DA for ethically following her oath of office.

Kudos also to the Lubbock County Defense Lawyers Association for its $8,500 gift to the Brendan Murray Criminal Defense Endowed Scholarship, bring its total to over $100,000. The scholarship is the association’s primary fundraising focus since the endowment was established in 2007. Murray, a 2L student at Texas Tech Law when he passed away in 2006, began working at the Texas Criminal Defense Lawyers Association while an undergraduate at the University of Texas at Austin and is fondly remembered in the home office.

The Smith County Bar Foundation received a Star of Texas Bars Award from the State Bar at the June Annual Meeting for hosting the Supreme Court of Texas oral arguments in Tyler. The Foundation worked with UT–Tyler, as 300 high school and college students watched the arguments and another 100 had lunch with the justices. The Foundation was represented by TCDLA members Jim Huggler (President), Buck Files, and Kelly Pace. Kudos to the East Texas contingent.

And a special “way to go” to Robb Fickman of Houston from President Sam Bassett and the entire association for his tireless efforts in organizing a record number of readings—in some 139 counties in Texas alone! This is Robb’s fourth year of organizing the readings statewide for TCDLA, after putting together the first reading in Texas in Harris County five years ago. We thank him for his dedication and commitment.

Kudos to TCDLA board member Don Flanary of San Antonio, recently named SACDLA’s Defender of the Year. The oft-lauded young gun is a frequent presenter at TCDLA seminars. And kudos also to former TCDLA president Stan Schneider of Houston, selected Houston Lawyer of the Year in his practice area by The Best Lawyers in America. Separately, he also earned a Lifetime Achievement Award from Texas Lawyer newspaper. Congratulations to both for  these honors.