Tip Hargrove

Tip Hargrove graduated from The Citadel (Military College of South Carolina) in 1971 and from Univ of North Carolina Chapel Hill Law School 1974. Went on active duty USAF in 1974. Began solo practice in San Angelo in 1978 handling criminal and family cases. Served on the TCDLA Board of Directors for 9 years and also served on the SBOT Family Law Council.

From the Hooterville Courthouse

Years ago, a rural lawyer – we will name him Bobby – had a client from Dallas who was charged with DWI in a small West Texas county. The case was unfortunately a true loser so he worked out an agreement with which the client could live. Time came to have the plea so Client X made the long drive the night before. Court was scheduled for 1:00. The County Judge was not a lawyer. She was someone Bobby knew well and liked, so he stuck his head in her office about 12:45. “Is the Judge here yet?” he asked. Answer: “No, her daughter had a baby this morning, she’s gone and won’t be back for a few days.” What the heck to do? Here Bobby’s client is, 7 hours from home after having taken off work, and never wants to set foot in West Texas again. Well, never fear, when it’s rural Texas there is ALWAYS a solution. When the County Attorney arrived, Bobby explained the problem and the County Attorney said, “No problem, let’s just go into the court. WE WILL DO IT WITHOUT THE JUDGE.” The client was in near shock. “Shut up, just play along!” Bobby said.

The County Attorney pulled out the plea papers and everyone signed, all the while with the client twitching nervously. The County Attorney approached the empty bench and said, “If the Judge were here, she would ask you if you are Client X who is charged with DWI, are you Client X ?” The client stared at Bobby in disbelief. “Dammit, play along I said,” Bobby whispered. “This whole thing is so messed up it can’t possibly be used against you in the future; it’s probably not valid for any purpose whatsoever.” Admittedly Bobby was guessing, but thought it was a pretty good guess (waive worries aside). So on they went. “Now if the Judge were here she would ask you if you are sane and competent…” The darn thing went like that all the way through! They concluded with, “She would tell you to be a good citizen and she would wish you luck. She would say we are adjourned.” Bizarre? No kidding! Luckily the client never got another DWI that Bobby knows of so he didn’t have to stand good on his commitment of “…don’t worry…” Bobby still shakes his head over it. Was he right? Professor Pat Metz will probably say Bobby was as nuts as the client and the County Attorney. But what can you do? Client says, “I ain’t comin’ back,” the prosecutor doesn’t care if the plea is any good, and appellant lawyers now can speculate and have fun with this one. Only in the Hooterville Courthouse!

Submitted by Tip Hargrove, San Angelo.

Report from the Reapportionment/Redistricting Committee

Friends, as you may know, TCDLA has a Reapportionment/Redistricting Committee chaired by Carmen Roe and myself. President Kerri Donica created the Committee and her successor Grant M. Scheiner kept it in business. We have been working and want to report our progress to the full membership.

Our mission was to determine if, after 50 years, TCDLA districts could benefit from rearranging. Of course, the first thing we did was to consult the bylaws. As it turns out, there is no mention of districts. In fact, they aren’t even called “districts”; they are “membership areas” (MA). See Article III, Sec. 11.  So, while we tend to refer to “districts,” formally there is no such thing.

As we thought through how to proceed, we came to the realization that TCDLA was NOT set up like a House of Representatives or like a Senate. Instead, it originated as a hybrid of both and for good reason. Texas is so vast with large areas sparsely populated, and at the same time, some population centers hold large concentrations of lawyers. Thus, a true House or a true Senate just would not make sense.  We concluded that the House of Representatives model worked well east of and in the neighborhood of I-35, while a Senate model worked well in the more rural and spread out parts of the state.  For that reason, trying to equal the number of TCDLA members in each MA was deemed impractical. 

From the beginning, we had the feeling that some members thought their county was assigned to the wrong MA in 1971 and that they would prefer to be moved. Even if “wrong” is not the correct characterization, have circumstances changed with the passage of almost 50 years was the question we asked ourselves.  The Abilene area and the Valley were our initial focus. We decided to test the Abilene area first. We did an informal survey and followed it up with a formal one. With Melissa’s help, we asked the TCDLA members in Taylor, Fisher, and Nolan counties if they would prefer to be in MA 2 – San Angelo/Midland/Odessa rather than MA 4 – Denton (where they are currently assigned). The answer was 94 percent yes to move to MA 2.  An important aside is that those members have nothing against the fine folks in the Denton area. They just never appear in court there, are far away, and do not know the lawyers there well,  while they are constantly in court in San Angelo/Midland/Odessa. The respondents also felt more attached to West Texas.

So, what is the goal, and what is best to do? We recommended moving those three counties.  Our hope was that members will feel they know their local representatives better, that they will be happier, and that membership in, and satisfaction with, TCDLA will increase as a result. We were of the opinion that a bylaws change is not necessary. We consulted Adam Kobs, Bylaws Chair, who agreed. No counties are listed by name in the bylaws as being in a particular MA. Perhaps a Charter Member can remember how the 254 counties were assigned to the MA’s. Most likely, a few of them sat at a table, pulled out a map and a magic marker, and just drew lines. This is step one, for we have not yet tackled the Valley or other areas of the state. We ask you for suggestions if you see a possible change for the better in your MA.

Based on the above, the Reapportionment/Redistricting Committee made a motion to the Board as follows: that Taylor, Fisher, and Nolan counties be reassigned to Membership Area 2 known in the bylaws as Permian Basin. The board approved the move on 26 Sept. 2020.   This rearrangement should have no adverse impact on MA4/Denton. MA 4 has hundreds more TCDLA members than MA 2, and only about 70 members are “on the move.”

We on the Committee appreciate the help we received from TCDLA staff and the confidence the board placed in us. The Valley is our likely next focus, so more to follow!  As we mentioned earlier, if you feel other similar changes can improve the way we deliver services to you, please contact any member of our committee. In addition to Carmen and myself, the members are: David Hardaway, Donald L. Wilson, and Adam Kobs.

An Artifact of Times Long Gone

Sometimes when you look through a pile of old papers, you find a jewel hidden under them. COVID-19 boredom put me on a spring-cleaning spree at the office, and what turned up but the “MINIMUM FEE SCHEDULE-CRIMINAL CASES” for Travis County dated October 17, 1969. A fine old lawyer gave it to me back in 1978. The contents of this pamphlet are both hilarious and hard to believe. Can you imagine, in today’s world, a county bar association publishing a minimum fee schedule?

I am not a Travis County lawyer, but Betty Blackwell, our beloved past president, is. Betty has written a short summary of the characters involved in the production of the pamphlet back in 1969. Two of them are our own Frank Maloney and Robert Jones, the first and 14th presidents of TCDLA, respectively. In this difficult time for our country and our profession, we hope you enjoy what follows.

The MINIMUM FEE SCHEDULE put out by the Travis County Bar Association was sold for the exorbitant sum of $1. It was intended to let the local bar know what to charge, and it also included an interesting list of offenses. Back then TCDLA didn’t exist to publish code books, so local groups had to assume that role. How far we have come in providing access to resources for lawyers is astounding.

Take a look at the minimums for retained cases and prepare to be amazed: A jury trial for murder with “m” – meaning malice – was $1,500. Hourly rate was $40. And apparently Travis County was the sex-crime center of the world. Of the 11 felonies listed with suggested fees, six of them were sex related. Shame, Travis County, shame! And look at the difference in the fee for rape at $1,000 and sodomy at $1,250. I don’t have the nerve to attempt to explain that.

Appellate specialists, be prepared to go broke. A brief and argument before the CCA was $1,000. You could expect to get the lavish sum of $1,500 if it was a capital case. If Mowla wasn’t already bald, he surely would get that way with these fees!

Now to pleas: A felony plea fee was $250. Considering what some counties have paid in very recent years for court appointments, that is not bad. Obviously, some counties have come a long way to go in regard to fees, while others apparently are currently using a copy of the pamphlet for a guide.

The Penal Code has never been a great source of pleasure for us, but let’s have some fun using what is in the pamphlet. Some of the offenses listed and the punishments associated with them will definitely make you scratch your head: Fornication was a misdemeanor with $50 the minimum fine – no jail time. On the other hand, running a bawdy house would get you a $200 fine and 20 days in jail for each day the bawdy house was open. I suppose wise advice was not to fornicate in a bawdy house. There was no harassment statute but sending an anonymous letter could get you a $25-$1,000 fine and one to 12 months in the county pokey.

Today we deal with gang violence all the time. It was better for the client back then. The fine for firing into a car was a minimum of $5. But the gang members had better not throw a stench bomb because that was a felony punished by $25-$5,000 and/or one to 25 years in the pen! And then there was castration at five to 25 years in the big house. Disfiguring was only two to five years. I guess you had to think twice about what body part to disfigure.

For those inclined to be a Casanova, beware: Seduction was a two-to-10-year felony. But then wife desertion was only a misdemeanor with up to two years in the county jail. The smart move was to marry anyone you seduced. How that conflicts with fornication was probably a bar exam question. If it wasn’t, it should have been. And finally, in this day of deadly viruses and social distancing, we close with a crime that we are all told to commit every day–wearing a mask in public would get you up to a $500 fine and 12 months in jail.

Tip Hargrove, San Angelo

The producers of the pamphlet included Robert Jones, Dain Whitworth, Paul T. Holt, Wallace Shropshire, Herman Gotcher, Jr., Frank Maloney, Forrest Troutman, and Jon Coffee.

Robert Jones, the chair of the committee, is a past president of TCDLA. He brought John Boston on as executive director of TCDLA. Robert personally went around to every criminal defense office in Austin asking that we all join TCDLA. In 1984 he was elected, with no opposition, to a criminal district court bench in Travis County and eight years later he was defeated for re-election and then served as a visiting judge for some time.

Dain Whitworth had been in the district attorney’s office before leaving to join the staff of the Texas District and County Attorney’s association. He and John Boston were great friends and for many years, they were the lobbying team at the legislature on all criminal law matters.  They usually agreed on more issues than they disagreed upon. He moved to the coast of Texas and has a small practice there.

Paul T. Holt was a legend in Austin. He has the largest criminal defense practice here for many, many years.  He never hired more attorneys, only more secretaries, at one time carrying three full-time secretaries on his staff.  He would open his office on Saturday morning to do free wills for any police officer. He was the great advertizer before it was legal, handing out glow-in-the-dark key chains with his name and phone number and always the phrase “To a good friend from Paul T. Holt”. My favorite story of Mr. Holt is that during his prime trial years, he had a card file on every person who ever served on a jury in Travis County and how they voted. It gave him an incredible advantage when it came to trials and every opponent knew it.

Wallace Shrosphire had been the county attorney of Travis County and then went into private civil practice as his wife Doris Shrosphire became the long-serving county clerk of Travis County.

Herman Gotcher, Jr., had been a legal aid lawyer before being hired as an assitant district attorney where he made his name as “Maddog Gotcher.” He was vicious in the courtroom and tried a string of drug cases, winning many long prison sentences in the early 1960s, until the criminal defense firm of Minton and Burton came into existance. Charlie Burton was the brillant mind behind that lawfirm with Roy being the  flamboyant one. But it took the two of them to finally start getting some acquittals in drugs cases in the late ‘60s and early ‘70s, to change the DA’s view of those cases.

Frank Maloney was the first president of TCDLA.  He practiced law for many, many years in Austin. The saying in Austin during that time was, “If you are innocent, hire Maloney; if you are guilty, hire Minton and Burton.”  Those offices were the two most prominent criminal defense firms in the state at the time. Frank went onto the Court of Criminal Appeals and upon forced retirement, he taught law at the University of Texas law school before finally completely retiring.

Betty Blackwell, Austin

Many thanks to those wise souls who, in 1969, gave us something we can laugh at in 2020. Keep safe and certainly hope to see you IN PERSON soon.

A Short Memo on the Community Caretaking Function

We have the community caretaking function in Texas, and I suppose that makes some sense. After all, these things come up with the officer approaching someone in a public place and saying something like, “Can I help you, ma’am?” The problem is that the citizen may not want any help. What allows the officer to continue to bother the citizen who wants to be left alone? What are the guidelines that the officer is to follow?

The answer comes from Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999). In that case the deputy sheriff saw a passenger vomiting out the window of a mov­ing vehicle. No traffic offense was being committed, but he stopped them anyway as a community caretaker. The Court of Criminal Appeals said that the factors relevant in determining whether or not the intrusion was reasonable are (1) the nature and level of the distress exhibited by the individual, (2) the location of the individual, (3) whether or not the individual was alone and/or had access to assistance independent of that offered by the officer, and (4) to what extent the individual, if not assisted, presented a danger to himself or others. The Court also said that the community caretaking function was to be very narrowly applied, and that in only the most unusual of circumstances is any warrantless search justified. The Court of Criminal Appeals remanded the case to the 3rd Court of Appeals to let it decide whether or not these facts were good enough to justify the stop. On remand the 3rd Court said, “Nope, not good enough.”

To me, this means that the court is serious about a couple of things. One is that this doctrine is to be narrowly applied, and the other is that it is absolutely fact driven—and the trial and/or lower appellate courts are to decide if the facts of the individual case justify the intrusion on the citizen. Andrews v. State, 79 S.W.3d 649 is a really good example of that. It is a Waco Court of Appeals case from 2002. A DPS trooper saw Mrs. Andrews leaning out of the open passenger door of a stopped vehicle on Interstate 45 about 1:00 in the morning and she was vomiting. Before he could get to them, the Andrews started to drive off. The officer wouldn’t let them, and Mr. Andrews, the driver, was charged with DWI. The Waco Court looked at the 4 factors listed above and found that the stop was not justified by the community caretaking function. In analyzing the facts, the Court does put more emphasis on factor 1—level of distress—than the other factors. This makes sense too. If the officer saw a man with a bleeding head wound sitting in a dark ally behind a strip joint, it is pretty easy to understand why the officer would need to approach the citizen and insist that he visit with him despite the citizen’s expected protest. The bleeding head wound sort of pulls the other factors along with it. The case that says the first factor is the most important is Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002). On page 278 of Corbin is where you find the Court of Criminal Appeals saying that the first factor is the most important.

In our particular case, I think the State is in trouble on all the factors. The officer who is eating at Denny’s sees a crying woman in the parking lot. She is not injured, it is a well-lit parking lot of a restaurant open 24 hours a day, and before the officer ever gets to her she voluntarily gets into a vehicle and starts to leave. The distress level is very low, the location is a safe one, there is someone who can help her other than herself (that being the driver of the vehicle that just picked her up), and she doesn’t appear to be a danger to herself or others. I don’t necessarily blame the officer for making the decision to check things out, but once she decided to leave on her own, he had to let her (and the driver) go. If we change the facts up a little bit and said he was already talking to her when the truck pulled up and the driver opened the door and said, “Get in, let’s go,” it would be a closer call. In my opinion, this is a loser for the State. It is my hope that you will agree to refuse this case rather than have us spend the time and effort that a motion to suppress would take.

In this particular case, the prosecutor agreed with Tip and the case was dropped.

TCDLA Affiliate and Rural Practice Committees

Mission Statement of the TCDLA Affiliate Committee

by Bobby Mims

“The Affiliate Criminal Defense Bar Committee seeks to promote the establishment of local county and/or city crimi­nal defense bar associations in order to promote the mission of TCDLA at the grassroots level. This committee will also advise and assist members who seek to form and/or strengthen their organizations by providing pro forma bylaws and organization materials. Additionally, this committee will work with the Criminal Defense Lawyers Project Committee to coordinate criminal law seminars held in all areas of the state in conjunction with TCDLA affiliates which are seeking to stimulate growth of the local organizations and thereby growth to TCDLA. The Committee will advise the officers and staff of TCDLA on methods to establish clear lines of communication between TCDLA and local affiliate organizations in order to ensure that the state organization is cognizant and responsive to the concerns of the local membership.”

Committee:

Mimi Coffey, Sharon Curtis, Harold Danford, John Gilmore, James Granberry, Deandra Grant, Bobby Mims, Doug Murphy, Katherine Scardino, Gary Thomas, and Christopher Tritico

Activities:

Presently TCDLA has 32 affiliates associations. Presently TCDLA members are organizing new affiliates in Corpus Christi and Texarkana. The existing organization in Corpus Christi appears to have been subsumed by the Nueces County Bar Association and has ceased to function as solely a criminal defense association, and meetings are attended by civil attorneys, prosecutors, and judges. Recently, two members advised that they were disenchanted and stated that “TCDLA does nothing for the lawyers in the Coastal Bend.” Joe Martinez has forwarded copies of bylaws to one of our members in Corpus. The Trail Tactics: The Art of War seminar was held on August 26, 2011, in Corpus Christi. This is a huge geographical area with a large population presently under-served by TCDLA. Re-establishment of an affiliate in Corpus and the Coastal Bend is a priority of this committee.

Charles Pelowski of Texarkana has volunteered to start an affiliate in Texarkana as the Bowie County Criminal Defense Lawyers Association. We have never had a significant presence in Texarkana other than our members, and this area is another demographic that is under-served by TCDLA. There are good opportunities to add membership if we can establish an active and effective affiliate in Texarkana. Charlie Pelowski is one of our brightest young members and is presently with the Bowie County Public Defender’s Office in Texarkana. We may add members who are licensed in Arkansas as well as Texas. If we plan a seminar in that area, we may even be able to have CLE approved by the Arkansas State Bar and attract participants that would otherwise not be available and realize revenues generated from out-of-state sources.

The committee asks for input from the membership on other areas that need attention, and we are looking for opportunities to expand the service to all members wherever they are located in Texas.

Report of the Rural Practice Committee

by Theodore A. (Tip) Hargrove III

El Presidente created a new committee called Rural Practice, and we are glad he did! Criminal defense for those of us who live and/or work in Hooterville can be quite different than that seen by our brothers and sisters in the city. Example: A defense lawyer in a small rural county wants a bench trial on a misdemeanor domestic assault case. The county judge is not a lawyer. The defense counsel and the prosecutor, who are on a first-name basis, go see the county judge with whom both are on a first-name basis. The county judge is friends with the defendant’s family and wants to recuse himself. The three of them talk about it for a while and agree that the defense at­tor­ney can draft for the county judge a letter to the dis­trict administrative judge asking for someone to be appointed. Defense counsel and the prosecutor agree on a couple of choices and off the letter goes. Can you folks in Gotham City imagine doing such a thing? Probably not, but those facts—and they are facts—illustrate many of the things that we are discovering about rural practice.

Shortly before Rusty, the Rural Practice Committee sent out a questionnaire to any and all who classified themselves as rural practitioners. The results are interesting. The first thing we discovered is that rural practitioners don’t like to fill out questionnaires! Some of what we have to report here is based on a spotty response so take all this with a grain of salt.

First, there appears to be more male rural practitioners than female, and usually at or past middle age. The percentage that are board certified is rather low. That is likely a function of economics. Very few rural practitioners indicated that they could survive on criminal defense work alone. The vast majority handle family, real estate, probate, and various other areas of civil prac­tice. A fair number of responders even indicated that they represented the local bank or credit union. Virtually everyone handles family law cases in addition to criminal defense. With a few exceptions, rural practitioners have a large number of appointed cases each year. There was only one person who practiced in an area where it was possible to opt out of appointed work. Most indicated that they were not allowed to opt out if they accepted criminal cases for pay. This is quite a contrast to urban areas where attorneys compete for appointed clients. In the rural areas many are overwhelmed by appointments and wish they had fewer. One responder indicated that he had averaged 72 appointed cases for 10 years in a row. That same practitioner reported that one third of his total criminal and civil case load was appointed criminal while one ninth of his income was from appointed criminal.

That leads to the next area of questions which, concern whether or not the rural practitioner felt that the fee paid for appointed criminal cases was fair. Most indicated that “fair” was the wrong word. Few believed the fee received was fair, but most indicated they could live with it. Most also indicated that they had little trouble actually getting the judge to sign an order for payment; that is probably related to the fact that most rural practitioners know their judges on a first-name basis.

The average rural practitioner sees the same judges and same prosecutors every day. Most are on friendly terms with the judge and prosecutor. Only a few growled that they could not get along with the judge and/or pros­e­cutor with no explanation as to why. Very few responders indicated they ever had to take punitive action against the judge or prosecutor, and very few in­di­cated any experience with the grievance committee. That probably means problems are handled internally on a face-to-face basis behind closed doors rather than within the formal disciplinary process.

Virtually every responder indicated the computer was essential to their practice. Most used some form of ad­ver­tising but of a “low key” nature. You just don’t put up a billboard or have a TV ad in Pecos, Texas.

Everyone wanted to collect their fees up front and few ever got it. Most admitted they had to work on a pay-out basis, and many times were stuck with collecting only a partial fee.

Our responders came from counties from all sizes, with at least one saying he lived in a county of 750,000 people. It seems clear that many of us consider ourselves to be rural practitioners although we live in the city. That means we travel to small counties and do not mind doing so.

When it came to seminars, most wanted those that did not extend beyond two days and were on Friday and/or Saturday. The requested topics were varied but centered on DWI and scientific evidence. We surmised—partly from personal experience—that when you live in the country you drive around with a cold beer in your hand.

The committee was gratified, and TCDLA should be too, with the responses concerning what we were do­ing right or wrong. Most responders indicated that TCDLA was helpful, and that nothing was missing in the way of effort extended by the organization.

Now to what is needed. Everyone wanted to know how to get access to information. While the List Serve was applauded, it was also deemed to be, at times, overwhelming. In addition, it was difficult to anticipate which gems to save and which ones to delete. That leads us to a suggestion or two. The rural practice committee would like to improve access to resources. There is a lot of information out there, but how do we get to it? Here is an example. Frequently, the List Serve refers to a wonderful article in the Harris County Criminal Defense Lawyers Association publication, The Defender. How is a lawyer in Paducah, Texas, going to get that? Perhaps the large-county TCDLA af­filiates could provide for an auxiliary membership for non-locals. I personally have joined the Harris County Criminal Defense Lawyers Association to have access to The Defender although it is unlikely I will ever attend a meeting. We also wonder why we can’t establish not just a brief bank but a memo bank as well. Many times a one-page analysis of a particular sub­ject that should be preserved somewhere will show up on the List Serve. The comments of Michael Mowla and Leonard Martinez are prime examples. We need a place for those things to go so we can find them on an as-needed basis. Fact situations that occur in Dallas or Houston on a daily basis may occur in Marfa only once a year, and while Mr. Mowla responds every time he is asked, he shouldn’t have to do that. Hopefully a better system of gathering and indexing our resources would be a benefit not just to the rural practitioner but to the membership no matter where located.

The Rural Practice Committee will continue to function and gather information on the country lawyers of Texas. Hopefully, the more we know the more we will be able to help. It is good to know that rural prac­ti­tioners like and appreciate our organization. We pledge to continue to strive to do an even better job for our members and TCDLA.