Current Issue: July/August 2022

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Features

20 | Fighting the TSA and Getting Off with a Warning – By Suzanne Spencer
27 | Op-Ed: Finding my Voice as a Female Criminal Defense Attorney – By Lisa Greenberg
30 | Declaration of Independence Readings: Memories and Media Mentions – By Chuck Lanehart
35 | Congratulations to the 2022 Declaration of Independence Organizers – By Chuck Lanehart

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
10 | Editor’s Comment
12 | Ethics and the Law
16 | Federal Corner
18 | From the Front Porch
23 | Shout-Outs

Departments

4 | CLE Seminars and Meetings
37 | Significant Decisions Report

President’s Message: A Dream Worth Fighting For

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Every lawyer has a personal story and journey of how they entered this profession. I love hearing others’ stories as much as I like sharing my own. I am a fourth generation, first female attorney in my family. And I’ve dreamed of being a lawyer since I was a little girl. Like many members of the bar, we believe this isn’t just our job, it is our deep‑rooted calling in life and we’ve weathered many storms to get where are today.

Some achieved the dream of being just like their dad, who they idolized their whole life. Others courageously persevered while growing up in extreme poverty in inner‑city slums to beat the odds for the chance to practice law. Still others’ journey involved overcoming tragedy, even being the victims of violent crimes, and rising from the ashes to become fierce advocates in the court‑ room. Others tell beautiful stories of immigrating to the United States from impoverished countries to achieve the American Dream, and are serving this country with honor. There are many inspirational stories. Whatever the story is, we all have a special one worth preserving.

However, what occurred in the aftermath of June 24th threatens to turn our stories into epic tragedies. Following the reversal of Roe v. Wade in Dobbs v. Jackson Women’s Health Organization – six days after I became TCDLA President – took direct aim at and put a chink in the armor of our sacred profession. The actions that ensued threaten to not only destroy our dreams and what we have worked so hard to achieve, but also trample on the very rights and freedom that we swore to safeguard.

Regardless of your personal or political beliefs regarding abortion, what we must rally behind is to fight against the groundswell of support by some state politicians who wish to pass legislation which would impose a mandatory disbarment of Texas lawyers for any involvement they may have as employers regarding their employees’ participation in abortions.

In the short time I have served as your TCDLA President, I have been privileged to dialogue with so many of you with very different, oftentimes very ardent, opinions surrounding abortion. Diversity of opinion is one of the aspects that makes this organization great and one of the core values I pledged to honor, and which I discussed in my previous Voice article. I am asking that we set aside differences in our personal beliefs and be cognizant that with the stroke of a pen, politicians can threaten to destroy our dreams and the great work that we do every day to fight for our clients.

Thankfully, we have an unstoppable organization with countless talented, devoted fighters. Part of our strategy to combat this threat will be a task force to handle this head‑on. I’ve asked our well‑respected colleague, Nicole DeBorde Hochglaube, to chair this committee. We will be strong and look to partner with other organizations throughout the country to ensure we relentlessly fight the impending overcriminalization that is eerily brewing.

Taking a stand now is not optional. If left unchecked, this latest foray into overcriminalization can quickly spread like wildfire. Even though it can be an uncomfortable conversation, we must work together to de‑ fend against the rising storm of overcriminalization that is headed our way. At this time, we need to stand in solidarity and recall the words of the great Dr. Martin Luther King, Jr.: “Injustice anywhere is a threat to justice everywhere.”

TCDLA: let us be united in our efforts to fight against this latest tale of injustice. The very stories of the next generation of lawyers may well be depending on us.

Executive Officer’s Perspective: 2021-2022 TCDLA Committee Highlights Thank You

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“No one who achieves success does so without acknowledging the help of others. The wise and confident acknowledge this help with gratitude.”

—Alfred North Whitehead

TCDLA has more than 40 committees and 200 committee members. Committee members meet via zoom and in person to create resources, support our members, and serve in the front line of defense! If you are passionate in a particular area and want to join a committee, visit the website for a full list of possibilities. Committee‑interest forms can be found online—or just email me. Thank you to our members who contribute their time and talents.

Affiliate | Co-Chairs Laurie Key & Susan Anderson: The Affiliate Committee has kept communication open with local bars and assisted with training and recruitment. They have also reached out to local bars who are not affiliates to help or to convince them to join TCDLA.

Amicus (Brief) Curiae | Chair Niles Illich & Vice Chair Kyle Therrian: The committee was consulted on ten cases of statewide significance. Most recently they have been looking to provide amicus support for attorneys representing individuals affected and detained under Operation Lone Star. The Committee is looking to expand its efforts by the addition of attorneys willing to volunteer and write one brief per year as a committee member.

Awards Committee | Co-Chairs David Botsford & Betty Blackwell: The Awards Committee, which meets every March, selected the Hall of Fame inductees (subject to Board approval), the Percy Foreman Lawyer of the Year, and the Charles Butts Pro Bono Lawyer of the Year. The committee did not bestow the Rodney Ellis Award in 2022.

Budget and Financial Development | Chair Nicole DeBorde & Vice Chair Clay Steadman: The Budget and Financial Development Committee put together a successful budget. Committee members met throughout the year to review the income and expenses for accuracy and to ensure TCDLA stays on budget. Over 2,500 checks are signed by the treasurer and check signers.

By-Laws | Chair Adam Kobs: The By‑ Laws Committee was tasked with clarifying two items: qualifications to run for the officer chain and length of time a termed‑out board member must wait before once again applying to be a director. Both amendments were approved by the membership.

Cannabis | Chair Don Flanary: In November of 2021, the Texas Attorney General’s Office (AG) requested that TCDLA provide an Opinion regarding the legality of Delta‑8 THC. The TCDLA Cannabis Committee drafted an Opinion in response which was adopted by the TCDLA Board and send to the AG. TCDLA concluded that concentrated or synthesized Delta‑8 THC is currently illegal under sections 481.103, 481.113, 481.116 as well as section 481.106 (c) of the Texas Health and Safety Code. The exclusion set out in section 481.002(5) for “tetrahydrocannabinols in hemp” is limited to the minute quantities of delta‑8 THC which are naturally occurring in hemp plants. Essentially, Delta‑8 THC is illegal to possess in Texas, however given the exclusions in section 481.002(5), viable defenses to possession do still exist.

Capital Assistance | Chair Greg Westfall & Vice Chair Scott Pawgan: The Capital Assistance Committee assisted in selecting speakers and topics for three seminars throughout Texas.

Client Mental Health | Chair Alyse Ferguson & Vice Chair Melissa Shearer: The Client Mental Health Committee put together three mental health seminars along with a monthly virtual Mental Monday CLE. In addition, the committee met to brainstorm on resources to provide members and clients. The committee also produced several free cheat sheets and sundry mental health resources.

Corrections & Parole | Chairs Bill Habern & David O’Neil: This year the co‑chairs served as course directors for the Post‑Conviction Seminar in Austin. The committee has also continued work on legislative proposals to create an independent board to supervise SCFO. The committee began work on a draft bill that would permit a pardon for individuals granted clemency, filling a gap in current law. At the invitation of its director, the co‑chairs met and provided input on how the TDCJ Parole Division could streamline the blue warrant process. Throughout the year, committee members have provided updates on TDCJ and Parolee Board matters of interest, while also fielding listserv questions on parole and corrections.

Criminal Defense Lawyers Project | Chair Adam Kobs & Vice Chair Monique Sparks: This past year, the CDLP committee saw some 325 speakers travel to over 40 seminars throughout Texas, training more than 5,000 criminal defense lawyers. Operating with the theme “Getting Game Day Ready,” the team went undefeated!

Diversity, Justice & Inclusion | Chairs Thuy Le & Monique Sparks: The Diversity, Justice & Inclusion Committee spread the word with statements highlighting various holidays and underrepresented groups. In addition, the committee reviewed suggested changes to the SBOT Lawyers Creed. Thuy and Monique served as course directors for the third annual Race Seminar.

DWI Resource | Chairs Mark Thiessen & Frank Sellers: The DWI Resource Committee continued to fight the good fight against the State and bad law. DWI 2nds acquittals are now eligible for expunction thanks to excellent appellate lawyering. DWI Committee also updated the rules flash card and created a checklist that will be available for purchase soon.

Executive | Chair Michael Gross & Vice Chair Heather Barbieri: The Executive Committee reviewed all business written and approved by committees, bringing items to the TCDLA Board for approval when required. This year the committee met in person quarterly and otherwise handled business virtually—altogether a productive and successful year.

Ethics | Chair Robert Pelton & Vice Chair Brent Mayr: The Ethics Committee monitored and responded to the dedicated Ethics Hotline via email, ethics@tcdla.com, and phone, (512) 646‑2734. The committee responds within 24 hours, responding to multiple inquires daily, and over 100 inquires per year. In addition, the committee members submit articles monthly for the standing ethics column in the Voice.

Health  &  Wellness | Chairs  Mark  Griffith & Savannah Gonzalez: The Health and Wellness Committee met to brainstorm on ways to support our members. The committee will implement and program to be held in the evening.

Indigent Client Defense | Chair Jani Maselli Wood & Vice Chair Allison Mathis: The Indigent Defense Committee reviewed and provide comment on several AG opinions. In addition, the committee created a Court Cost Workgroup Booklet.

Judicial Conduct | Chairs Ed Mallett & Philip Wischkaemper: The Judicial Conduct Committee reviewed the several cases where a former Midland Assistant D.A., Ralph Petty, received extra compensation from the County’s judicial budget for being a “law clerk” to the judges. In the central case where the Los Angeles California Federal Defenders, Capital Habeas Unit, discovered the double‑dipping and inherent conflict of interest, they sought a deposition and Petty claimed his Fifth Amendment rights. The death row defendant prevailed on his writ. TCDLA filed Complaints with the Commission on Judicial Conduct against the seven judges still in service who had participated in the scheme. A recent report from our sources in Midland has informed us that one of the judges, who was tangentially involved, received notice that his complaint had been dismissed. Also, during the year, the committee advised members on a variety of issues, including motions to recuse, for change of venue, for continuance when experts became unavailable, and similar, often confidential, matters.

Juvenile | Chair Kameron Johnson: The Juvenile Justice Committee worked on juvenile legislation by serving as experts and a resource for the legislature. This included juvenile‑specific trainings by the newest Juvenile Training Immersion Program (JTIP) specialist and a toolkit developed for certification cases with Lone Star Justice. The committee also held case staffing and reviews for attorneys throughout the state with complex juvenile cases, also creating juvenile cheat sheets and working on creating e‑filing for Texas attorneys (although not completed, we have laid the groundwork for jurisdictions and district clerks to start utilizing). The committee also has published juvenile related articles in the Voice.

Law School Students | Chair Anne Burnham: The Law School Students Committee organized and presented “Pathways to Criminal Defense Practice,” a pan‑ Texas law school virtual Interactive career day event; created a law school students public website page with student‑specific resources; hosted a law student reception at Rusty Duncan, in collaboration with the New Lawyers Committee; and facilitated TCDLA speaker presentations at individual law schools.

Legislative | Chair Bill Harris: The Legislative Committee met at least monthly this year and spent endless hours at the Capitol during the session. Often committee members and those testifying didn’t leave until after midnight. The committee continues to update members with the legislative cheat sheet, presentations, and materials with the latest laws (including Bail Reform), as well as traveling to affiliates’ local bars and maintaining the Legislative Update listserv and dedicated email().

Listserv | Chair Jeep Darnell & Vice Chair David Moore: The Listserv Committee has the incredibly endless job of reading over 20,000 posts annual on the TCDLA listserv (TCDLA offers more than 20 different specialty areas), spreading awareness of the rules when needed and fostering group respect. Staff are also notified immediately if members need assistance as well.

Long Range Planning | Chair Nicole DeBorde Hochglaube & Vice Chair Monique Sparks: Researching process and structure of the committee for an end of year working session. Including TCDLEI in the process to work towards complimenting mission statements and goals.

Media Relations | Chairs Lisa Greenberg & John Torrey Hunter: The Media Relations Committee is the first to respond to recent events following the Covid‑19 pandemic, Supreme Court decisions, and the recent appointment of a Supreme Court justice. Committee members throughout the state create press releases quickly, fostering relationships with their local media outlets and reporters to assist in getting our voice and perspectives heard when needed.

Membership Benefits | Chair Gene Anthes: The Membership Committee this year sponsored four quarterly members socials throughout the state, including the Cowboys stadium tour, a hockey game, a baseball game, and wine tours.

Memo Bank | Chair Tip Hargrove & Vice Chair Warren Wolf: The Memo Bank Committee was the brainchild of two old tech‑incompetent lawyers who didn’t know how to save a darn thing from the list‑ serv. Past President/Hall of Famer Vee Perini and Tip Hargrove wanted to preserve the best of the recurring posts of general interest to our membership. Committee members review all posts and flag items for inclusion on a section called “Listserve Saved—the good stuff.” This is in the members‑only section, which has expanded to also include the Voir Dire and Motions banks.

New Lawyers | Chair Thuy Le & Vice Chair Rick Flores: The New Lawyers Committee assisted in a Career Day virtual interactive event and hosted a New Lawyers meet‑and‑greet at Rusty Duncan.

Nominations | Chair Heather Barbieri & Vice Chair John Hunter Smith: The Nominations Committee met several times throughout the year to review the process, as well as to encourage members and districts to apply. The committee reviews applications and will meet to select the slate for 2022–23. This year the committee voted on twelve new members and seven renewals for the Board of Directors, ratified at the Annual Members meeting in June. The committee will prepare an analysis report for next year to ensure Texas‑wide representation.

Past Presidents | Chair Betty Blackwell: The Past Presidents Committee meets to keep former presidents abreast of TCDLA issues and to make use of their institutional knowledge for innovative solutions.

Prosecutorial | Chair Lance Evans & Vice Chair David Moore: The Prosecutorial Committee reviewed several grievances submitted by members and proceeded as necessary.

Public Defender | Chairs Jessica Canter & Clifford Duke: The Public Defender Committee focused this year on continuing to strengthen public‑defense ties around the state. Using our annual meeting in San Antonio, we were able to concentrate on networking our new and expanding Public Defender, Regional Defense, and MAC offices with the common goal of superior indigent defense. Our trainings addressed the nuts‑and‑bolts integral to daily defense, but also the growing need to recognize diversity and a holistic defense for indigent clients. We’re looking to TCDLA as the linking organization for these growing offices as we continue to help each other statewide.

Rural Practice | Co-Chairs John Hunter Smith & Clay Steadman: Meeting throughout the year, the Rural Practice Committee worked on a checklist, creating a format for a quarterly virtual roundtable and addressing member needs and monitoring the Rural Listserv.

Strike Force | Chair Nicole DeBorde: Strike Force receives calls and emails from TCDLA members almost weekly. We are proud to serve members under attack for their performance of the criminal defense function in their representation of the accused. Strike force has appeared in person and remotely throughout the state rep‑ resenting our members and has spent many hours brain‑ storming with criminal defense lawyers under attack.

Technology | Chair Jeremy Rosenthal: The Technology Committee this year focused on helping master old technology and finding new technology tools for members to use. Check out the TCDLA website for our bank of “How To” videos for daily tech tasks and their use. Also keep an eye out for new tools coming from TCDLA—one to keep track of Brady and another providing ammunition for cross‑examination—as we work to create a centralized statewide database for members.

Transcript Database | Chair Carmen Roe: The Transcript Database Committee met to strategize the collection and organization of transcripts.

Veterans Assistance | Chair Terri Zimmerman & Vice Chair John Convery: The Veterans Assistance Committee works to serve as a resource for TCDLA members on accurate information about legal issues in‑ volving active duty, reserve, retired, or former military members. Our biggest event of the year is the Annual Veterans Justice Clinic held in February. Speakers include experts discussing topics such as the physical and psychological effects of combat, the workings of the Veterans Administration, developments in military law, confusing military paperwork such as the discharge certificate (DD‑214), and the operations of the various Veterans Treatment Courts around the state.

Voice | Editor Jeep Darnell & Assistant Editors Anglica Cogliano, Amanda Hernandez, Sarah Roland, Jeremy Rosenthal & Clay Steadman: The Voice editorial committee reviews over 100 articles a year, edits content, and checks citations. After the articles are finalized, the committee goes through the proofing process on each of the ten, 46‑page Voice magazines annually. They also reach out to authors to offer assistance or request articles on current events or resources related to criminal defense.

Women’s Caucus | Co-Chairs Betty Blackwell, Julie Hasdorff & Cynthia Hujar Orr: The Women’s Caucus Committee put together a women‑specific seminar and hosted a Women’s Caucus at Rusty Duncan. The committee also kept members engaged on the listserv, and members submitted articles for the Voice. In addition, the Women’s Caucus had a round table discussion with other women practitioners and will launch zoom calls to move these discussions and mentorship opportunities forward.

Editor’s Comment: July/August 2022

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Do you know what’s fun? Going to Rusty Duncan. Do you know what’s not as fun? When your youngest son tests positive for COVID the week of Rusty and you’ve been exposed and can’t attend Rusty.

You know what else is fun? Shooting off fireworks on the 4th of July with family and friends. Do you know what is less fun than that? Testing positive for COVID the week of 4th of July and then having your oldest son test positive on the 4th of July.

As I write this article we are hoping beyond hope that we can clear all of our protocols and make it to the annual TCDLA Members Trip in South Padre Island from July 13‑16. That trip is also fun. Aside from catching up on discovery I had not yet reviewed, I am spending my COVID‑cation working on making reservations to the Kalahari Resort for the Fall Board meeting held in con‑ junction with the Post‑Pandemic Trial Preparation CLE from September 15‑17 in Round Rock, Texas. That will also be fun.

So, aside from having to read about me feeling sorry for myself, what is the point? Well, the point is that if you haven’t ever engaged in TCDLA as a member and truly worked to get to know the members of this Organization you are missing out. Sure, there are many a lawyer who has a bit too much to drink at Rusty, but that’s not the extent of the human engagement side of being a part of TCDLA. If you’ve got a family, bring them to the Members Trip. My kids look forward to that trip every year. My oldest son comments every year about how he can’t wait to go to South Padre and swim in the frog pool (if you’ve been you know) and have breakfast with John Hundred Smith (otherwise known to the rest of us as John Hunter Smith). He’s also been bugging me incessantly about the upcoming meeting at the Kalahari because we’ll get to see that guy who’s my friend whose kids go to South Padre and Kalahari and they are fun (otherwise known in our world as Paul Tu). The fact of the matter is that my kids feel like this is their family as much as I do. So does my wife; heck she’s made fun of Clay Steadman more than I have and he likes her better than he likes me. But three trips within a matter of a few months aren’t the only opportunities that exist to get more involved with TCDLA and to become part of the family. While Mark Snodgrass has as much to do with making me a part of the TCDLA family as anyone by bringing me inside the tents at South Padre, there are tons of members across the State who would gladly bring you into the fold if you have the desire. Our Membership Committee has undertaken the awesome idea of having non‑CLE events just for the very purpose of getting us together to have fun. Let’s be honest, we all work too hard every day. There’s no question that a big part of our camaraderie comes from the common ground of hardship we endure every day at work. But that doesn’t define our only way of engaging with each other. I promise, if you get engaged and show up and meet people then you’ll have your own stories to tell about this wonderful organization and you’ll get to experience your own sense of the family that is TCDLA. Not many members can say that they had the treat of taxiing our new TCDLA President’s kids and mother to the hotel in South Padre the very first year I attended. But I did and I can say that I probably have that to thank for counting Heather as my friend.

Be safe
Jeep Darnell

Ethics and the Law: Ethical Issues Dealing with an Incompetent Client

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At one point or another, you will be faced with a client with a mental condition that raises an issue as to whether they are competent. The constitutional standard for competency to stand trial asks whether the defendant has a sufficient present ability to consult with their lawyer with a reasonable degree of rational understanding and whether they have a rational as well as factual under‑ standing of the proceedings against them.1

Often times, there are going to be cases where there is no doubt about the client’s competency or lack thereof. But what about the close cases? Even more difficult, what about the client who is adamant that they are competent when there is evidence to suggest otherwise? Or the client whose mental illness impairs their ability to make critical choices about their case?

These specific scenarios raise numerous ethical questions that are not easy to address or answer. These include, in no particular order, questions about the duty of loyalty, the duty of candor to the court, and the need to maintain confidentiality.

Don’t Go Runnin’ to the Court (Except for Funding)

When confronted with a client — appointed or retained — who appears to lack that fundamental “reason‑ able degree of rational understanding,” it is important for criminal defense lawyers to first embrace one of our most fundamental obligations: maintaining the confidences of the client. This is critical to developing an effective defensive strategy, while ensuring that the client’s rights are protected.

Many times, we see where lawyers, upon learning that the client has some mental illness or appears to have some mental illness, immediately notify the court (which inevitably places the State on notice) of what they have learned in their discussions with their client about their possible mental impairment. This is presumably due to the requirements set out in Article 46B of the Code of Criminal Procedure. Triggering those statutory requirements, however, may either not be necessary or punitive to the client. For instance, if a client is released on bond but is found to be incompetent and ordered to be transferred to a mental hospital, that is a substantial restriction on their freedom. Even worse, it is typically not due to any conscious choice or decision on their part. The more prudent course of action is utilizing an ex‑ pert that operates under the umbrella of the attorney‑client relationship and is able to consult with both the client and the attorney confidentially about the client’s mental condition. If you are appointed to represent a client or the client does not have the funds to retain a forensic psychologist, you should first file an ex parte motion for the assistance of an expert pursuant to Ake v. Oklahoma to evaluate the client before going to the court and invoking the procedures set out in Article 46B.004. You want to be careful to include enough information to get the court to approve the funding (e.g. “funding is needed for the appointment of a psychologist to help assist counsel evaluate any possible mental conditions and their impact on the defendant’s role in the alleged offense”), but not blatantly “suggest” the defendant may be incompetent to stand trial so as not to trigger the requirements of Article 46B.

All this is consistent with newly implemented Rule 1.16 of the Texas Disciplinary Rules of Professional Conduct titled “Clients with Diminished Capacity.” This rule, which upon closer inspection was obviously in‑ tended to apply to clients in the context of non‑criminal settings, nevertheless encourages lawyers to rely on others to “protect the client” with diminished capacity.2

This course of action is also preferable because it allows you to rely on an expert in the field of psychology to support or dispel any belief you as the criminal defense lawyer may have about the client’s mental capacity and ability to consult with you, rather than have to make those difficult determinations on your own.

To Disclose or Not Disclose?

Once you have the insight and opinion from your psychological expert regarding your client’s mental capacity, the next ethical conflict deals with whether there is an ethical obligation to disclose that information to the court and the prosecutor.

Again, as discussed previously, upon the court being presented with a suggestion that the defendant is incompetent, the court is required to take certain steps including appointing a “disinterested expert” to examine the defendant and report on their competency. In certain circumstances, however, a finding of incompetency could result in further harm to the client. What, if any, ethical obligation is there to disclose the fact that a defendant does not possess the required mental capacity to understand the proceedings against them? What happens when, for instance, during a plea colloquy, the court inquires of the attorney whether they believe the defendant is competent to enter their plea?

Rules 3.03 and 3.04 of the Texas Disciplinary Rules of Professional Conduct speak about, as titled, “Candor Toward the Tribunal” and “Fairness in Adjudicatory Proceedings,” but, like other rules, give little explicit guidance with how to deal with a situation like this. Comment 1 to Rule 3.03 makes it clear that “The advocate’s task is to present the client’s case with persuasive force.” However, “[p]erformance of that duty while maintaining confidences of the client is qualified by the advocate’s duty of candor to the tribunal.”

In some cases, disclosing the client’s incompetency to the prosecutor can be beneficial. Once the prosecutor realizes the possible impediment they face to prosecuting the defendant, a prosecutor might be compelled to dismiss the charges or offer an alternate resolution that does not require a plea or a trial. However, what happens when the disclosure has the opposite effect? Instead of agreeing to dismiss the charge, the prosecutor could insist on commitment or other harsh alternative to try and restore the defendant’s competency. In the federal criminal justice system, for instance, upon a finding of incompetency, the court “shall commit the defendant to the custody of the Attorney General” who “shall hospitalize the defendant for treatment in a suitable facility.”3 What if the defendant is released on bond (as is the presumption in federal cases) and suffers from an intellectual disability that cannot be treated with medication or therapy? One can see the harmful and cruel consequence that comes from disclosing the client’s incompetency in that scenario.

Again, there is no clear guidance from the Rules, their commentary, or any Ethics Opinion with how to make these determinations.

Who Gets to Call the Shots?

Only adding to these dilemmas, what happens when the client’s lack of competency or other mental impairment leads them to make choices that you, as the criminal defense lawyer, knows is not in the best interest of the client. For instance, what if the client does not want to be found incompetent even though your expert and your diligent review of that expert’s opinion leads you to conclude otherwise?

In the Preamble to the Rules, in the Section titled, “A Lawyer’s Responsibilities,” it states generally, “In all professional functions, a lawyer should zealously pursue client’s interests within the bounds of the law.” Comment 6 to Rule 1.01 of the Texas Disciplinary Rules of Professional Conduct, states,

Having accepted employment, a lawyer should act with competence, commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf. A lawyer should feel a moral or professional obligation to pursue a matter on behalf of a client with reasonable diligence and promptness despite opposition, obstruction or personal inconvenience to the lawyer.

That is a lot of power and responsibility for us as lawyers to assume. But what about the role the client plays in the attorney‑client relationship?

Rule 1.02 of the Texas Disciplinary Rules of Professional Conduct sets out limits for both the lawyer and the client. The Rule starts with the mandatory provisions where the client has the ultimate power to make decisions. As they relate to us as criminal defense lawyers, a lawyer shall abide by a client’s decisions (a) “concerning the objectives and general methods of representation,” and (b) after consultation with the lawyer, “as to the plea to be entered, whether to waive jury trial, and whether the client will testify.” The Rule then continues with the exceptions, which provide, among other things, that “A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.” Comment 1 to the Rule explains the interplay between the role of both the client and the attorney:

Both lawyer and client have authority and responsibility in the objectives and means of representation. The client has ultimate authority to determine the objectives to be served by legal representation, within the limits imposed by law, the lawyer’s professional obligations, and the agreed scope of representation. Within those limits, a client also has a right to consult with the lawyer about the general methods to be used in pursuing those objectives. The lawyer should assume responsibility for the means by which the client’s objectives are best achieved. Thus, a lawyer has very broad discretion to deter‑ mine technical and legal tactics, subject to the client’s wishes regarding such matters as the expense to be incurred and concern for third persons who might be adversely affected.

One must ask themselves whether these same principles apply to a client who is incompetent. In McCoy v. Louisiana, ‑‑ U.S. ‑‑, 138 S. Ct. 1500, 200 L. Ed. 2d 821 (2018), the Supreme Court held that the defendant in that case had absolute control over the decision to admit guilt despite his lawyer “reasonably assess[ing] a concession of guilt as best suited to avoid the death penalty.”4 This decision by the client was sacrosanct despite the client being “an unruly client” who “faced a strong government case.”5 It is worth noting, however, that the Court considered that the trial court “had determined that McCoy was competent to stand trial.”6

This is where the first step in dealing with a potentially incompetent client — obtaining a psychological expert to assist in your defense — can be of assistance. By having your own expert with their own observations of your client’s mental capacity, it will be easier to justify the decisions that you as the lawyer make to accomplish what is in the client’s best interests. In other words, if some mental illness is affecting the client’s ability to make certain decisions about the case, from an ethical perspective, it will help you making those decisions when you have the input from an expert in that field to weigh in and support your decisions.

However, there are always going to be situations where you must weigh the client’s autonomy and ability to decide for themselves what is in their best interest. In this regard, it is important to note that competency is not always clear and distinguishable. While a client’s mental illness may impede their ability to make certain decisions such as whether to plead guilty or not, they may possess enough capacity to set out what their objective is.

Even though the court’s assessment of a defendant’s competency to stand trial is a black and white determination, competency exists in degrees.7 A client may be competent enough to participate in a murder trial and yet that same client may not be competent to stand trial for a complicated financial conspiracy case. A client may be able to understand the roles of the actors in the court room and yet think aliens are coming to testify against him. As Justice Blackmun once stated, “Competency for one purpose does not necessarily translate to comptency for another purpose.”8

When addressing the court’s inquiry, keep in mind the continuum that competency exists on; then deter‑ mine whether for the purposes of the case the client is competent to proceed with trial, such that they can understand the charges against them, the roles of court officers, and be able to assist in their defense to the degree that their participation is required.

Conclusion

Dealing with a client with mental illness that lacks competency undoubtedly presents a criminal defense attorney with numerous ethical dilemmas. Only complicating matters is the lack of clear guidance from the Rules and their commentary, as well as differing perspectives as to what the attorney’s role is when representing an incompetent client. To help navigate this difficult territory, it is always best to have a psychological expert to assist both the attorney and the client. But one must be prepared — and well read on this issue — in order to ensure that the attorney is not only complying with the law, but their ethical obligations as well.

As always, the TCDLA Ethics Committee is here ready to advise and assist you with these ethical dilemmas.

Federal Corner: July/August 2022

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In United States v. Vargas, the Fifth Circuit addressed a tricky question—how should a recent Supreme Court decision limiting the deference owed to an agency’s interpretation of its own regulations affect a district court’s deference to the commentary found in the Guidelines Manual?1 After likening Guidelines commentary to “an agency’s interpretation of its own legislative rules,” the Supreme Court announced the following rule in Stinson v. United States: “[C]ommentary in the Guidelines Manual that interprets or explains a Guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that Guideline.”2 That level of deference may no longer be appropriate. In 2019, the Supreme Court clarified how and when a district court should defer to an agency’s interpretation of its own regulations.3 That opinion—Kisor v. Wilkie—addressed the level of deference described in Stinson and noted that it applies only if “the regulation [at issue] is genuinely ambiguous.”4 Whether Kisor overruled Stinson was an open question in the Fifth Circuit for almost three years, but on May 31, 2022, a three‑judge panel held that Stinson remained good law.5 This resulted in a short opinion authored by Judge Cory Wilson, which affirmed the appellant’s classification as a career offender.6 The panel nevertheless expressed sympathy with Mr. Vargas’s legal claim.7 It also noted a pending circuit split concerning Kisor’s effect on Stinson.8

On appeal, Mr. Vargas attacked the commentary to the Guidelines Manual’s career‑offender provision. He qualified as a career offender, the district court found, “because the instant offense, as well as . . . prior convictions for possession with intent to distribute amphetamine and conspiracy to possess with intent to manufacture and distribute methamphetamine, qualified as controlled substance offenses.”9 The Guidelines Manual, in the substantive text of Section 4B1.2, defines the term “controlled substances offense” to include “an[y] offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.”10 According to Section 4B1.2’s commentary, this definition “also ‘includes the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’”11 In light of Kisor, Mr. Vargas pitted the substantive text against the commentary. The “plain text” of Section 4B1.2 was unambiguous, he argued, and did not account for inchoate crimes.12 He then pointed to Kisor’s clarification of the standard announced in Stinson and asked the Fifth Circuit to declare Section 4B1.2’s commentary unworthy of deference.13

To prevail, Mr. Vargas needed to overcome both Stinson and the Fifth Circuit’s 1997 opinion in United States v. Lightbourn. The latter opinion addressed the Sentencing Commission’s statutory authority to de‑ fine drug conspiracies as career‑offender predicates.14 The Fifth Circuit determined that the Commission had appropriately “draw[n] its authority from the general guideline promulgation powers” granted to it by Congress.15 Lightbourn, Judge Wilson noted, “did not cite Stinson or otherwise expressly defer to the Guidelines commentary,” but since Section 4B1.2’s commentary provided “the sole source of authority for including in‑ choate offenses” within the relevant definition, “its hold‑ ing implied deference” to the commentary.16 A published opinion later adopted that implicit holding and thereby “rendered any implication of deference in Lighbourn explicit.”17 Lightbourn and its progeny thus foreclosed Mr. Vargas’s claim. To escape the effect of that authority, he needed to establish “an intervening change in law.”18

Kisor, Mr. Vargas argued, provided just that. There, the Supreme Court addressed the level of deference described in Stinson and explained that it “does not ap‑ ply ‘unless the regulation is genuinely ambiguous.’”19 “[B] efore concluding that a rule is genuinely ambiguous, a court must exhaust all the traditional tools of construction.”20 These include the “careful consideration of ‘the text, structure, history, and purpose of a regulation.’”21 Such analysis “will resolve many seeming ambiguities out of the box,” but if “genuine ambiguity remains,” a court may defer to an agency’s interpretation of its own regulations if that interpretation is “reasonable” in light of the regulation’s text.22

Stinson allowed for greater deference and without regard to ambiguity. There, the Supreme Court “considered whether and when the Sentencing Commission’s commentary to the Guidelines should be given binding interpretive effect” and treated Guidelines commentary as “akin to an agency’s interpretation of its own legislative rules.”23 At the time, that meant Guidelines commentary was “authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that Guideline.”24 In Kisor, the Supreme Court rejected this approach as a “caricature” of the appropriate analysis.25

Did Kisor overrule Stinson? Mr. Vargas argued yes, and that development, he claimed, would render Lighbourn’s implicit deference to Section 4B1.2’s commentary improper in light of its unambiguous “plain text.”26 That text—the “controlled substances offense” definition found in Section 4B1.2(b)—did not account for inchoate crimes.27 Given its clarity, Mr. Vargas maintained, the commentary expanding the definition to include conspiracies was no longer “entitled to deference.”28 The panel expressed sympathy with Mr. Vargas’s argument but ultimately determined that Kisor was too vague to overrule Stinson. “If we were writing on a blank slate,” Judge Wilson noted, “we might well agree with Vargas,”29 but to escape Lightbourn, he needed to show that Kisor “unequivocally overrule[d]” the precedent blocking his claim on appeal.30 This, the panel concluded, he could not do, as “Kisor did not discuss the Sentencing Guidelines or Stinson.”31 Although Kisor provided a hint as to how the Supreme Court might rule in the future, “a mere ‘hint’ . . . is not enough to circumvent” the Fifth Circuit’s “rule of orderliness.”32

Other jurists disagree. Sitting en banc, the Third Circuit Court of Appeals considered the same argument advanced by Mr. Vargas and sided with the defendant.33 It found that Kisor had “cut back on what had been understood to be uncritical and broad deference to agency interpretations of regulations” and then applied Kisor’s analysis to Section 4B1.2’s text and commentary.34 The Third Circuit determined that Section 4B1.2(b)’s substantive text unambiguously excluded inchoate crimes and rejected the commentary as unworthy of deference.35 The defendant, who had been classified as a career of‑ fender based in part on a prior “conviction for an attempt to possess with intent to distribute cocaine” was therefore “entitled to be resentenced without being classified as a career offender.”36

The Fifth Circuit may follow the Third Circuit’s lead and rehear the case en banc. Judge Wilson wrote the opinion in Vargas, and Judges Jerry Smith and Gregg Costa signed on to his expression of sympathy concerning Mr. Vargas’s legal claim. A prior unpublished opinion drafted by Judge Edith Jones and joined by Judges Jennifer Walker Elrod and Smith expressed the same sentiment.37 On top of that, Judge Wilson used a footnote in Vargas to acknowledge the existing circuit split.38 Mr. Vargas has since filed a petition for en banc rehearing.39 In the petition, he asked the Fifth Circuit to reconsider the panel’s opinion, and for support, pointed to circuit splits concerning both Kisor’s general effect on Stinson and the specific deference owed to the career‑offender commentary.40 The pending petition may well provide Judge Wilson and his sympathetic colleagues the opportunity to reconsider Kisor’s effect while “writing on a blank slate.”41

From the Front Porch: July/August 2022

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Marco Polo describes a bridge, stone by stone.
“But which is the stone that supports the bridge?” Kublai Khan asks?
The bridge is not supported by one stone or another,” Marco answers, “but by the line of the arch that they form.”
Kublai Khan remains silent, reflecting. Then he adds: “Why do you speak to me of the stones? It is only the arch that matters to me.”
Polo answers: “Without stones there is no arch.”1

He was an incredibly imaginative writer, Italo Calvino – the sort of dexterity with words and images that make you want to put the book down from time to time and just clap. In Invisible Cities, he has a young Marco Polo talking to an aging Kublai Khan – the former regaling the latter with some tales of the magic that used to be his empire, so many beautiful moments spun from exploring the simplest of things: bridges, for example. Arches and stones. Eight weeks after the Concho Valley Public Defender’s Office has officially began accepting appointments, those are precisely what I find myself thinking about: arches, and the stones that compose them.

In an earlier article, I wrote about how we had set out to lay the foundation for a brand‑new public defender’s office in rural West Texas. It was an intensely personal piece: one focused on how we sought to discover the values we collectively held dear and rooting our earliest decisions in those values. It dwelt a great deal on the importance, to us, of building an enduring culture – one that emerged in the most welcome way from the collection of people and experiences who had decided, for whatever reason, that San Angelo was the place they wanted to be a public defender. The joy of that stage in our creation was the time we were able to dedicate not just to putting the stones in place in a way that felt right to us,  but finding and examining the stones themselves. And now, it’s the arch that we’re looking at – what does it mean to be eight weeks into an open and operating office, our gaze shifting from behind to ahead, with so many decisions and people gathered in the most wonderfully unique side‑by‑side way. Now that the stones are together, the question: what is their strength? How can it sustain? The line of the arch – is it strong?

Somewhere within these questions lies the thrust of where we are in as an office, the “you’re open, what now?” stage. It is a continual process of examination and re‑examination: those decisions we made, those processes we set up, those values we grounded ourselves in – how are they now that they’re being battle‑tested?

With that, I’d like to discuss what our phase two of opening a public defender’s office has been like: the assessment. And reassessment. And reassessment…

Break things

Some of my more formative professional moments have taken place in restaurants that are about to open. The team is hired and trained, the menu is the product of months of taste‑testing and experimentation, and there comes a moment of recognition that things are as ready as they ever will be. And then, the opening. The kitchen runs behind, the server stumbles with the register, the drinks come out slowly. Depending on the strength of the restaurant’s founding moments, what happens then isn’t a crumbling, it’s a resilience – some recognition that what we prepared for needs tweaking, and it is only on the strengths of our preparation that the swift and lasting adjustment is possible. And, invariably, good restaurants do just that: recognize the failing, pivot to the fix, and ground it all in the notion that this was precisely the un‑ expected turn that a strong operation can handle.

For our office, there was great emphasis on just that, that what we are setting up will, at times, break – it’s bound to. The issue, though, is not in the breaking, it is in the opportunity that presents as a result – how to fix.

Adventurousness

One of the questions that guides our office is: “Whoever wrote the rule?” The task here is to look at a thing we’re dealing with, recognize the traditional forces at play, and then explore space around adventurous solutions. Or, as James McDermott might call this: “Why say no to something unless you have to say no to it?”

An example of this, for our office, has to do with magistration. I have only ever worked in rural public defender offices, and though I have always wanted to be present in some capacity at the moment of magistration, it has never really been functionally possible. As an office, we decided that based on some of the particularities of our service area that we could be present at magistration from day one.

The rule – especially in rural areas – has always been that an assortment of forces has prevented counsel from being able to be present magistration proceedings. We explored this as an office – examined our personnel, the sustainability of our decision, and the role we wanted to play by being there – and decided that it was the right move. And, it has paid dividends – the early data confirms what is hardly surprising: counsel at a bond‑setting leads to good results.

Leadership is a team sport

I will always believe, in every phase of existence, a public defender’s office needs to create space for both delivery and reception of divergent views. Your stroke of brilliance might feel to everyone else as something short‑sighted, and the only way to check the strength of what you’re building is to gauge how comfortably disagreement is voiced, how readily it is welcomed, and what action steps result. There may be no better skill in these moments than some sort of silence, coupled nicely with some follow‑up questions.

Critical to the doors‑newly‑open phase of our office have been the regular meetings of both our leader‑ ship team and entire staff where we have tried to create space to report back on things that work and things that don’t. This can create uncertainty and concern – fine. In an ideal outcome, the temporary nature of each of those emotions turns to reward and confidence when the expressed concerns are attentively handled. There is something transcendently human about being heard, and if it’s something we preach regarding our client engagement, it should certainly be something we bring back to the office.

Humility is a value that matters tremendously to our office, and it means so many different things: that no single person is bigger than what we’re trying to do, that there’s a perpetual recognition of what more we can learn and how much we can grow, and that how we operate – and the decisions that guide our function – are ones that feel most right to us, where we are. The challenge in a series of articles like these is, for me, a personal one: how do I share what feels true for us without presuming that there is some transitive value to everyone else?

And the answer? I have no idea. My hope is that there might be some marginal utility to the simple sharing of a lived experience of assisting in the creation of a public defender office. I have learned there may be solidarity in uncertainty, that there may be comfort in going to bed at night wondering about the rightness of a decision, that there may be calm in knowing that this work can be rugged, and that all of it is magnificently okay.

Stones will gather into bridges – what a privilege it is to do the gathering.

Shout Outs

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Kudos to Laura McCoy and her co-counsel, Jeff Harrelson, whose client was found NOT GUILTY of capital murder in Titus County. It was a tough case, but an amazing outcome. Way to go!

Congratulations to Alex Bunin, who was awarded the 2022 Patrick Wiseman Award for Civil Rights, by the Civil Liberties & Civil Rights Section of the State Bar of Texas. The Wiseman Award is intended for lawyers who have made a lifetime commitment to civil liberties and civil rights in Texas. Tremendous, Alex!

A round of applause for Taly Thiessen, who fought victoriously on a difficult DWI motion to suppress. She won in the trial court that was just affirmed in the Fourteenth Court of Appeals! Great work, Taly!

Shout-Out to Wilvin Carter for receiving a NOT GUILTY verdict after a long fought battle with the court. His client was facing 25 years to life. Way to go, Wilvin!

Kudos to Drew Carroll who received multiple NOT GUILTY verdicts for his client, including murder, voluntary manslaughter, attempted murder, use of a weapon during a crime of violence. Outstanding job, Drew!

Congratulations to Angelica Cogliano who is thrilled to have won two for two in the 5th circuit, with the help of her co-counsel, Deniz!

A round of applause for Richard Banks whose DWI case dismissed! Great job, Richard!

Shout-Out to both Mike Head and Justin Weiner, whose client was facing a 25-life aggravated assault with a deadly weapon charge on a jury trial. Their client had been to TDCJ numerous times and had multiple allegations and instances of alleged violence. After two days of trial, Mike and Justin were able to use a self-defense issue and to expose the alleged victim’s lies to the prosecutor. They were able to negotiate the case to a time served Class A Misdemeanor plea. Previously, the only offer ever made was 20 years on the aggravated charge. Great work, Mike and Justin!

Kudos to Joseph Esparza and his co-counsel, Orlando Castanon, whose capital murder case in Maywas dismissed. They were able to find an independent witness the State was unaware of, who confirmed it was an act of self defense. Great work, Joseph and Orlando!

In the same month, Joseph defended a Senior NCO Drill Instructor who was being court-martialed for hazing, cruelty and maltreatment of junior soldiers, and violation of Army regulations. Ultimately, a trial with facts reminiscent of Full Metal Jacket, with both sides calling numerous witnesses, the jury members returned a big “NOT GUILTY” on all charges after 4 hours of deliberation.

Congratulations to John Convery, who was recognized with the first Lucien Campbell Lifetime Achievement Award for Leadership and Enrichment of the Criminal Justice Act Panel, the legal profession, and the public over a lifetime, presented by the CJA Panel Selection Committee at the SABA Federal Courts Committee Dinner. Tremendous job, John!

A round of applause for Leslie Bollier and her team, Gina Schroeder and Katherine Obando, on their recent win in a hard fought case. A deserving father was awarded primary custody by a jury, ruling in his favor on significant financial issues. Way to go, Ladies!

Shout-Out to Chad Hughes and Sarah Duncan Jacobs on a NOT GUILTY verdict. Way to go!

Kudos to Ryan Gertz who was honored with the Best Feature/Human Interest Story Award for “The Death of Insanity in Texas.” Great job, Ryan!

Congratulations are in order for Novert Mo Morales, who was sworn in as Chair of Hispanic Issues Section of the State Bar of Texas. Congratulations, Novert!

Shout-Out to Patty Tress who received a NOT GUILTY verdict in a Denton County jury trial! Despite the challenges she faced, justice prevailed. Great work, Patty!

Current Issue: June 2022

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DOWNLOAD PDF VERSION

Features

21 | Should You Ever Plead Misdemeanors Before Felonies? – By Dean Watts
23 | What’s in a Name? That Which We Call Weed/by Any Other Name Would Smell as Sweet – By Rick Cofer & Megan Rue
26 | Pretty Maps & Plea Bargains: Tips on Handling Cellular Records Analysis in Criminal Defense Cases – By Patrick Siewert
32 | Attacks and Hypocrisy During the Confirmation Hearings of Associate Justice-to-be Ketanji Brown Jackson – By Buck Files

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
8 | Editor’s Comment
10 | Ethics and the Law
15 | Federal Corner
18 | Shout-Outs
19 | From the Front Porch

Departments

4 | CLE Seminars and Meetings
38 | Significant Decisions Report

President’s Message: Room at the Table

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What an honor to be writing my first column as President of Texas Criminal Defense Lawyers Association! I remember how this journey began in the fall of 1999, when I was a proverbial baby lawyer in the Collin County Courthouse in McKinney, Texas. I was proud to have been assigned to my very first court‑appointed case and determined to figure out how on earth I was going to actually try the case. My partner in crime at the time, Darlina Crowder, and I were newly‑licensed, but so hungry, and it showed.

After court, we were heading onto the elevator with our shiny new briefcases, and we were lucky enough to be approached by a couple of great lawyers, John Hardin and Chris Hoover. They said we should sign up for this organization called TCDLA. We even got a discounted rate, so why not? I filled out my application and faxed—yes faxed—it back the same day. The rest, as they say, is history.

My 23‑year TCDLA journey has been filled with many great adventures, some challenges along the way, but most all, many cherished friendships. And I’m grateful for every single second of the journey so far. My family and I are so blessed to be part of this incredible group of people.

I would also like to thank the Past‑Presidents who have led this organization with such valor, especially immediate Past‑President Michael Gross, who has paved the way for me. Michael, I have said this before, you are one of the finest lawyers I’ve ever known. You were a fearless leader, and as always, an officer and a gentleman. Thank you for your service.

Over the next year, I want to work relentlessly to make sure that everyone in TCDLA‑‑all 3,500 of us‑‑is afforded the same experiences and opportunities I have had. My vision is simple: to make sure there is room at the table for everyone. I hold in the highest esteem the tenets of inclusion, diversity, and the institutional knowledge that we all bring from our wealth of experiences – inside the courtroom and beyond.

What does that vision entail, you ask? Well, first and foremost, I want everyone to realize they have an individual seat at the table. All lawyers who are committed to protecting the individual rights of the criminally accused are welcome in TCDLA ‑ whether you have been practicing for less than a year, or for many decades. We want to celebrate – and tap into – the fresh ideas and innovation of all the younger lawyers as well as the institutional knowledge of those that are seasoned and battle‑tested. The TCDLA tent is as enormous as the State of Texas, and all are included inside.

I also truly value and want to recognize our diverse membership ‑not just because that is the progressive thing to do these days‑ but because diversity breeds excellence. Proverbs teaches us that “Iron sharpens iron; one person sharpens another.” And to me, that is the beauty of a diverse tent – diversity that is celebrated by including every gender, race, ethnicity, geographic background, political and religious belief – and perhaps most especially – diversity of thoughts, ideas and dreams. The more diverse we are, the more inclusive we become, the more room we make at the table – our organization becomes even greater, we become even better lawyers and we thrive more as individuals. Iron truly sharpens iron.

I see this upcoming year as the greatest opportunity of my career… to serve all of you. My TCDLA journey, which started many years ago when those elevator doors opened in a Collin County Courthouse in McKinney, Texas, is only complete when I have finished doing all I can to help every TCDLA member fulfill their lifetime journey.

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