Current Issue: September 2021

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Features

15 | Food for Thought: Semantics and the Presumption of Innocence – By Jessica Canter
16 | 34th Annual Rusty Duncan Advanced Criminal Law Course 2021
22 | Diligent Participation Credit – By Jonathan Hyatt
23 | A Diary of Declaration Readings – By Chuck Lanehart
31 | Revolving Door: Treatment vs Incarceration – By Michelle Sandlin
35 | Juvenile Forensics: When the Wait is Worth It – By Scott Ruplinger

Columns

5 | President’s Message
6 | Executive Officer’s Perspective
7 | Editor’s Comment
9 | Ethics and the Law
11 | From the Front Porch
12 | Federal Corner
32 | Shout-Outs

Departments

4 | CLE Seminars and Meetings
38 | Significant Decisions Report

President’s Message: September 2021

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On July 28, 2021, Texas Governor Abbott issued Executive Order No. GA-37 relating to the transportation of migrants during the COVID-19 disaster. GA-37 authorizes the Texas Department of Public Safety (DPS) “to stop any vehicle upon reasonable suspicion of” transporting illegal migrants and to impound any such vehicle. On July 27, 2021, Governor Abbott issued a letter ordering the Texas National Guard (TNG) to “assist DPS in enforcing Texas law by arresting lawbreakers at the border.” On August 3, 3021, Judge Kathleen Cardone of the United States District Court for the Western District of Texas, El Paso Division, issued a temporary restraining order finding that the United States Department of Justice would likely prevail on its claim that GA-37 violates the Supremacy Clause of the United States Constitution because it conflicts with federal immigration law and that GA-37 “causes irreparable injury to the United States and to individuals the United States is charged with protecting, jeopardizing the health and safety of non-citizens . . .” United States v. Texas, Cause No. EP-21-CV-173-KC (W.D. Tex., August 3, 2021).

Caught in the middle of all this are hundreds of indigent migrants. In Val Verde County, Del Rio, Texas, DPS has installed chain link fences on private property at the border and, when migrants breach the fences or enter private property, the migrants are arrested by DPS for the misdemeanor offenses of trespassing or criminal mischief. (https://www.texastribune.org/2021/07/30/texas-greg-abbott-border-security/) Governor Abbott has converted the Briscoe state prison in Dilley, Texas into a state jail to house these arrested migrants. Id. This is approximately 100 miles from Del Rio, Texas. Id. These indigent migrants are charged, magistrated with a bond set at a processing tent, and then transported to Dilley, Texas to await the outcome of the charges. Id.

There exists marked confusion by DPS in Del Rio regarding how these Texas laws are affected by migrants who are seeking asylum. Id. For instance, on July 30, 2021, it was reported that a migrant husband-wife couple from Venezuela were seeking asylum when DPS arrested the husband for trespassing. Id. It was the understanding of the local sheriff that families and children were supposed to be handled by Border Patrol and not DPS. Id. A local Border Patrol agent was confused about why DPS arrested this family member. Id. The sheriff intervened resulting in the husband being reunited with his wife and turned over to Border Patrol for asylum processing. Id.

Hundreds of people have been arrested by DPS, and the Val Verde County Attorney’s office is now overwhelmed with these cases. Id. It has been reported that the County Attorney expects to offer time served to most of these defendants. Id. The Texas Indigent Defense Commission has begun to direct funding to help with court-appointed attorneys for these defendants. Id. Val Verde County, however, does not have enough attorneys to cover this number of new cases. Criminal defense attorneys from around Texas will be needed to help these indigent, migrant defendants.

The Texas Criminal Defense Lawyers Association has many wonderful attorneys who would be willing to assist with these cases. The concerns of TCDLA, however, are that a quick guilty plea of time served may not be appropriate for these cases. Our concerns are many. How fairly was the bail amount determined? How quickly will a pre-trial habeas motion to decrease bail be heard? What are the effects of a plea on the asylum or immigration situation for the migrant? How will Padilla letters be obtained for the migrant to answer immigration concerns and who pays for this? Who will pay for travel and lodging at Del Rio to examine the alleged crime scene and to then travel to Dilley to meet with the client? Who will pay for the investigators needed to help prepare the case? Who will pay for mental health experts and other potentially necessary experts to help prepare the case? Who will set the court-appointed rates?

These are questions we in TCDLA have for our clients every day. These are questions that should also be answered for these indigent, migrant defendants in Del Rio. TCDLA attorneys are always up to the task for providing an excellent defense for clients in these situations. I look forward to seeing how TCDLA attorneys are again up to the challenge and how they will provide excellent defenses for these defendants in Del Rio.

Chief Executive Officer’s Perspective: Change is Now

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With Texas opening back up and members faced with more in-person contact, TCDLA is moving at full speed. We continue to deal with change – Covid variants cropping up, new executive orders. We must also now contemplate a second special session, which includes “bail reform” on the agenda. To that end, we will present a legislative update in September. For now, you’ll find a Legislative Update Paper in the members-only section of our website. TCDLA will do everything possible to keep our members up to snuff on every new change, legislative or otherwise. As soon as our legislative cheatsheet is revised, we will share it as a free member benefit.

Our volunteer forces are also mustering to provide help as needed. Our COVID Task Force, co-chaired by Allison Clayton () and Nicole DeBorde Hochglaube (), maintains a timely COVID resource page on TCDLA’s home page, with useful motions, tools, and other resources. As always, if you are being threatened or found in contempt, contact our Strike Force, led by co-chairs Wm. Reagan Wynn () and Nicole DeBorde Hochglaube (). Confronted with an ethical dilemma? Call our Ethics Hotline, and Robert Pelton or one of the committee members will assist you.

Other volunteers on our committees are also contributing to the team effort. Our Amicus Curiae Brief Committee, steered by Chair Niles Illich, has been hard at work this month preparing several new briefs. The Technology Committee is assessing new apps and databases, along with security programs and other tools to enhance your member experience. If you have not visited our committee page, by all means click on the “About” tab on the TCDLA website. We list more than 30 committees there, all designed to assist our members. If you want to join one and contribute to the effort, let us know. We cannot succeed without our members; they make everything possible.

Also of note, TCDLA is working with LPDO and TIDC on responses to Operation Lone Star. As part of Operation Lone Star, Governor Abbott bolstered the law-enforcement presence along the border. The number of immigrants arrested for criminal trespass or related offenses has subsequently mushroomed. More criminal defense attorneys are now needed to lend a hand representing those arrested under this heavy-handed program. We emailed information and have posted this, but you can learn more by emailing or visiting https://www.lpdo.org/.

For those who’ve needed a break from the madness, our monthly zoom meetings with TCDLA past presidents have provided welcome relief, wherein our gentle giants gather, brainstorm, and continue to lead the charge from behind the scenes. They let me crash their meetings, listening in on so many amazing stories. I love the laughs and camaraderie, the obvious affection they share for one another. It reenergizes me every time I visit.

And finally, we’re preparing for the Tim Evans Texas Criminal Trial College, featuring deans Kerri Anderson Donica and Lance Evans and emeritus deans Lydia Clay-Jackson and Tim Evans. We have a cohort who’ve been waiting since March 2020 for the college, and they’re excited for the opportunity. But don’t forget all our other upcoming seminars: Visit our website to sign up. It has been too long since we’ve seen each other! Nothing can surpass the feeling when can we come together, not only reconnecting but also sharing strategies – and assisting one’s brothers and sisters.

Editor’s Comment: Fight the Good Fight

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Despite the necessity to do so, it was one of my very greatest pleasures to work with TCDLA lawyers on the COVID-19 Response Task Force Committee during the height of the pandemic in 2020. The work that Chair Clay Steadman, then Co-Chairs Allison Clayton and Nicole DeBorde Hochglaube, along with vice-Chairs Betty Blackwell, John Hunter Smith, and Kyle Therrian, along with the rest of our Committee, did to help the members of this Organization and their clients remain safe against tyranny was as much fun as one could have when courts were shut down. Man, I thought those days were moving past us. It appears what was old may be new again. 

On August 4, 2021, Bexar County Judge Ron Rangel, Judge of the 379th Judicial District Court and Local Administrative Judge for the Bexar County Courts, shut down all in-person jury trials again because of the renewed threat COVID-19 has on members of the community. While I suspect that other counties and courts may follow suit depending on the on-going or worsening COVID-19 threat, there will be courts, judges, and locations where the threat to lawyers, defendants, and necessary witnesses will be ignored. I know that the band will be ready to get back together to fight for the protections of all our members should they be put in danger. Please do not hesitate to contact your local Committee representative if there are situations that arise that make you feel unsafe in the practice of criminal defense. We did not sign up to give up our lives to defend the Constitution. We may give up just about everything else, but don’t forget we all have someone who we have to protect, whether it be ourselves or our loved ones. I hope the new surge is short and that we can sooner get back to normal. Until then, be safe.

Ethics and the Law: Constitutional Carry

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The measures in reference to Texas’ new gun laws, regularly called “Constitutional Carry” go into effect on September 1, 2021. Effective September 1, the applicable provisions under Tex. Penal Code, Chapter 46, have been amended to  allow certain persons to carry a weapon on their person without a license, under certain potential restrictions.  The following is a primer on many, but not all, of the criminal law considerations that practitioners must consider when considering and/or advising clients on the change in Texas’ gun laws.

The law will refer to a person without a  license to carry (“LTC”) after September 1, 2021, as a non-prohibited person. Until September 1, 2021, a non-prohibited person MUST continue to carry their handgun as if they were unlicensed.

Texas Representative Matt Schaefer is the author of HB 1927. He gave the following closing comment for the bill on May 23, 2021 “We are charged with defending the freedoms that are owed to Texans and guaranteed by the Constitution. My faith is with law-abiding Texans, who are the first to respond because they are there.” In modern parlance, the term “constitutional carry,” also called “permitless carry” or “unrestricted carry,” refers to legal carrying of a handgun, either openly or concealed, without a license or permit.  The general idea behind constitutional carry is that every person who is not prohibited from legally owning a handgun should be free to carry it openly or concealed in public without fear of being prosecuted simply for exercising their right

A person carrying a handgun under the authority of Texas’ new gun law must not be prohibited under state and/or federal law against carrying a firearm and must meet the following requirements: must be 21 years of age or older; and  must not be prohibited from possessing a firearm in a public place in Texas.  As to the second requirement, it is imperative to understand who will be prohibited from possessing a firearm in a public place in Texas.    The following groups are prohibited under State and federal law from possessing a weapon: persons who have been convicted of a felony. (See Tex. Penal Code §§ §12.04 & 46.04(a) (effective Sept. 1, 2021); see also 18 U.S.C. § 922(g)(1)); persons who have been convicted of an misdemeanor crime of assault involving a family or household member before the 5th anniversary or release from confinement or community supervision (whichever is later). (See Tex. Penal Code § 46.04(b)(effective Sept. 1, 2021);but see 18 U.S.C. § 922(g)(9), it is “unlawful” for anyone “convicted in any court of a misdemeanor crime of domestic violence” to possess a weapon, regardless of the time since the conviction); persons, other than a peace officer, who are subject to a protective order, who received notice of the order and before the expiration of the order. (See Tex. Penal Code §§46.04(c)(effective Sept. 1, 2021); see also 18 U.S.C. § 922(g)(8));  persons who have been convicted (a final judgment of guilt) within the past 5 years of an Assault Causing Bodily Injury (see Tex. Penal Code §§§ 22.01(a)(1) & 46.02(a)(2)(B)), Deadly Conduct,(see Tex. Penal Code §§ 22.05 & 46.02(a)(2)(B)-, Terroristic Threat, (see Tex. Penal Code §§ 22.07 & 46.02(a)(2)(B)(effective Sept. 1, 2021)), Disorderly Conduct-Discharging a Firearm, (see Tex. Penal Code §§ 42.01(a)(7) & 46.02(a)(2)(B)(effective Sept. 1, 2021)), and Disorderly Conduct-Displaying a Firearm, (see Tex. Penal Code §§ 42.01(a)(8) & 46.02(a)(2)(B)(effective Sept. 1, 2021)); someone who is a fugitive from justice. (See 18 U.S.C. § 922(g)(2)); someone who unlawfully uses or is addicted to a controlled substance. (See 18 U.S.C. § 922(g)(3)); someone “who has been adjudicated as a mental defective or who has been committed to a mental institution.” (See 18 U.S.C. § 922(g)(4)); an alien illegally in the United States or who has been admitted into the United States under a nonimmigrant visa.  (See 18 U.S.C. § 922(g)(5)); anyone who “has been discharged from the Armed Forces under dishonorable condition.” (See 18 U.S.C. § 922(g)(6)); and anyone who was a citizen of the United States, but has renounced his or her citizenship.  (See 18 U.S.C. § 922(g)(7)).  Additionally, a person may not openly carry a handgun in plain view pursuant to Texas’ new gun laws while in a motor vehicle or watercraft that is under the person’s ownership or control, unless the person is 21 years of age or older, or has an LTC and the handgun is in a holster.  (See Tex. Penal Code § 46.02(a-1)(1).  Finally, a person may not carry, in plain view or otherwise, a handgun in a motor vehicle or watercraft that is under the person’s ownership or control if the person is engaged in criminal activity, prohibited by law from possessing a firearm, or a member of a criminal street gang.  (See Tex. Penal Code § 46.02(a-1)(2).  Under Texas’ new gun law, there will be no requirement that a person carrying a handgun be a Texas resident.

Texas’ new gun laws primarily affect handgun possession.  Much of the change in Texas’ gun laws are an effort to conform handgun and long gun carry laws. Previously, possession of any firearm including a long gun was prohibited in any place listed in Tex. Penal Code § 46.03, while places prohibited to license holders carrying handguns were listed in Tex. Penal Code § 46.035. These two prohibitions will now be combined in Tex. Penal Code § 46.03 (effective Sept. 1, 2021), which means that long guns are now explicitly prohibited in 51% establishments, professional sporting events, correctional facilities, hospitals, nursing facilities, mental hospitals, amusement parks, civil commitment facilities, and open meetings of governmental entities.

Other important considerations in understanding the change in Texas’ gun laws is understanding what is considered a handgun and how can handguns be carried under the new law.  The term handgun refers to any firearm that is designed, made, or adapted to be fired with one hand. (See Tex. Penal Code § 46.01(5)(effective Sept. 1, 2021)). Pursuant to the upcoming changes, there are two legal methods of carrying a handgun. A person carrying a handgun under the authority of Texas’ new gun laws may either carry that handgun: (1) concealed; or (2) openly in a holster. Generally speaking, “concealed” means that no part of the handgun is visible based on ordinary observation, while “openly in a holster” means that a handgun is partially or wholly visible based on ordinary observation MUST be carried in a holster.  (See e.g. Tex. Penal Code § 46.035 (effective Sept. 1, 2021)).

When reviewing all of the above explained changes, the location where a person may legally carry a handgun must still be considered.  In most instances, a person carrying a handgun under the authority of Texas’ new gun laws may do so in any public, non-prohibited place, or a public place without effective notice. Businesses that chose to disallow the carrying of weapons can provide notice either verbally or in writing (ex. posted signage) that carrying a handgun is prohibited. On the other hand, the following places are generally prohibited to a person carrying a handgun, even under the recent changes,: schools or educational institutions, a transportation vehicle of the school or educational institution, or the grounds where a school sponsored activity is taking place, (see Tex. Penal Code § 46.03(a)(1)(effective Sept. 1, 2021));polling places including places offering early voting, (see Tex. Penal Code § 46.03 (a)(2) (effective Sept. 1, 2021)); courts or offices utilized by a court, (see Tex. Penal Code § 46.03(a)(3) (effective Sept. 1, 2021)); racetracks where pari-mutuel wagering takes place (horse or dog racing), (see Tex. Penal Code  § 46.03(a)(4) (effective Sept. 1, 2021)); secured areas of an airport. (see Tex. Penal Code § 46.03(a)(5) (effective Sept. 1, 2021)); within 1,000 feet of locations designated by TDCJ as a place of execution on the day a death sentence is to be imposed (does not include a person’s home or place of employment), (see Tex. Penal Code § 46.03(a)(6) (effective Sept. 1, 2021)); bars (51% or more establishments), (see Tex. Penal Code § 46.03(a)(7) (effective Sept. 1, 2021)); professional sporting events, (see Tex. Penal Code 46.03(a)(8) (effective Sept. 1, 2021)); correctional facilities ,  (see Tex. Penal Code § 46.03(a)(9) (effective Sept. 1, 2021)); civil commitment facilities, (see Tex. Penal Code § 46.03(a)(10); hospitals or nursing homes, (see Tex. Penal Code § 46.03(a)(11) (effective Sept. 1, 2021)); mental hospitals, (see Tex. Penal Code § 46.03 (a)(12) (effective Sept. 1, 2021)); amusement parks, (see Tex. Penal Code § 46.03 (a)(13) (effective Sept. 1, 2021)); and a room or rooms of an open meeting of a governmental entity. (See Tex. Penal Code § 46.03(a)(14) (effective Sept. 1, 2021)).

However, License holders are only prohibited in carrying inside amusement parks and hospitals if effective notice is given per Tex. Penal Code §s 30.06 & 30.07 (effective Sept. 1, 2021). Additionally, a room or rooms of an open meeting of a governmental entity will no longer be prohibited to license holders per Tex. Penal Code § 46.15(b) (effective Sept. 1, 2021). An unlicensed person carrying a long gun or a handgun is strictly prohibited and risks being charged with a felony for carrying into the room or a meeting of a governmental entity.

Private property owners may give notice to persons other than license holders that entering the premises with a firearm constitutes a trespass. This notice may now be provided by a Tex. Penal Code § 30.05 “No Firearms” sign personally by the owner or someone with apparent authority. The trespass notices for license holders will remain the same under Tex. Penal Code § 30.06 and/or 30.07.  Additionally, if an establishment sells alcohol and receives 51% or more of its income from the sale of alcohol, it must display 51% signage to give to all persons that the place is prohibited. Only license holders will be provided relief if the establishment does not provide effective notice. See Tex. Penal Code § 46.15(p).

People may decide to prohibit firearms and other weapons on their premises or property, but muse post a sign at each entrance that contains specific language, in both English and Spanish, in certain coloring and sizing.  If effective notice is provided under Tex. Penal Code § 46.15(o) (effective Sept. 1, 2021)), any person who carries a firearm (even accidentally) into that location will not have the benefit of the newly created defense to prosecution intended to guard against mistakes.

In order to receive the protections afforded by Texas’ new gun laws, a person openly carrying a handgun MUST keep the handgun holstered. A handgun should not leave the holster unless the person is acting in justified defense (Tex. Penal Code, Chapter 9) or another lawful activity. A person cannot display a firearm in manner calculated to alarm. This has commonly been referred to as brandishing. The Tex. Penal Code criminalizes the general display of a firearm as either disorderly conduct or deadly conduct. If a person intentionally or knowingly displays a firearm or other deadly weapon in a public place in a manner calculated to alarm, this is the act of disorderly conduct. Additionally, an unlicensed person commits an offense if the person carries a handgun while the person is intoxicated and is not: on their own property or property under their control  or on private property with the consent of the owner of the property; or inside or directly enroute to a motor vehicle or watercraft: (i) that is owned by the person or under their control; or (ii) with the consent of the owner or operator of the vehicle or watercraft. See Tex. Penal Code § 46.02(a-6)(1).

From The Front Porch: Tech Gadgets for the Rural Practitioner

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I must admit that I am not terribly interested in technology. I’m not up to speed with using Facebook, which I hear is now outdated. However, when technology makes my job easier and more efficient, it gets my attention. You may not have a large support staff who can organize everything as a rural practitioner, so it’s at your fingertips. Your team may consist of, well, you. If that is the case, and even if it isn’t, here are three apps that may make your life easier. I won’t recommend any per se by name (I’m not getting paid for endorsements here!). Still, I can point you in the general direction of time-saving technology that helps make you more professional and efficient. You can take several online options for a test drive and see which one is right for you.

Virtual Receptionists – This can be great even if you have an entire staff. It can be an actual human being or a programmed voicemail that takes your calls after hours. You can get a transcription of your message, and then you have the option of texting them back (without revealing your personal phone number) or having a receptionist return their call and tell them precisely what you want them to say. Most people are used to dealing with some sort of technological buffer between themselves and who they want to talk with. Using the right one can weed out bad calls automatically so you can focus on who you want to talk to and what you want to say. Once you start using this, you will wonder how you survived without it.

Law Management Software – At one time, a well-run office simply had a client’s file folder in a file cabinet. Some may still operate this way, but you are making it very hard on yourself for no reason. Law management software can put all of your client’s information in the palm of your hand, literally. You can use their app, pull up all of your client’s records, offense reports, billing history, payments, etc., within seconds. If you have a bad memory (I’m taking the 5th… again!), this is truly a lifesaver. It will also track your billing instead of looking up receipts and, gulp, doing math!

Online Writing Assistant – Ever file a document, look at it a few days later, and have embarrassing typos? (I‘ll remain silent again). This will virtually eliminate embarrassing errors that look unprofessional. If you have motions that have been recycled over the years, run it through them. You may be shocked at how many grammatical anomalies you actually have. I’m all for eliminating the “heretofore” and “premises considered” that permeate our motion practice. They impede communication, are ignored by the reader and are meaningless. Write your motions in plain English, and everyone will be happier.

Although technology is not the answer to all of our problems, it can eliminate a few. Incorporate these three things in your profession, and you will make your life easier. As always, have fun, take care, and good luck!

Federal Corner: “and” means “and” Safety Valve is Open Facts of the Case

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United States v. Lopez, 988 F.3d 431 (9th Cir. 2021)
First Step Safety Valve Application

In December of 2018, Eric Lopez, a thirty-five-year-old man from South Gate California, drove across the United States Mexico border in Otay Mesa, California. The Customs and Border Protection Officer noticed a “soapy-odor” coming from the vehicle and referred him to secondary. The secondary inspection of Lopez’s vehicle revealed packages containing methamphetamine. He was arrested and charged with importing at least fifty (50) grams or more of a substance containing methamphetamine in violation of Title 21 U.S.C. §§ 952 and 960. He entered a guilty plea.

Sentencing

At sentencing, the district court explained that Lopez’s Pre-Sentence Investigation Report (“PSR”) revealed only one relevant conviction under the sentencing guidelines. When Lopez was twenty-two years old, he spray-painted a sign onto a building. Lopez was convicted of vandalism. He served 13 months of imprisonment for that vandalism conviction. The Sentencing Guidelines Manual § 4A1.1(a) states that the district court must add 3 points for each prior sentence exceeding thirteen months of imprisonment. The district court agreed with Lopez’s counsel, though, that Lopez only met the criteria under 18 U.S.C. § 3553(f)(1)(B), a prior three-point offense, and that he did not meet the other two parts of the criteria under §3553(f)(1).

The government argued that the safety valve criteria under the First Step Act of 2018 was to be read in the disjunctive. The Act was amended in 2018 to change 18 U.S.C. § 3553(f)(1) from allowing no more than 1 criminal history point if: (1) the defendant does not have – (A) more than 4 criminal history points . . . ; (B) a prior 3-point offense . . . ;  and (C) a prior 2-point violent offense [emphasis added] The district court recognized that the ability to sentence below the guidelines turned on Lopez’s argument that the statute required all three in the conjunctive as opposed to the government’s position. Lopez was eligible for safety-valve relief under the district court’s conjunctive interpretation because, while he had a prior 3-point offense, he did not also have the other two criteria. The court then sentenced him to four years (48 months) of imprisonment. This was one (1) year less than the five-year (60 month) mandatory minimum. The government timely appealed.

Appeal: “and” means “and”

The Court of Appeals went through a very in-depth examination of the word “and.” The government conceded that the plain and ordinary meaning of § 3553(f)(1)’s “and” was conjunctive. See Lopez at 436. Their analysis started with that concession and an examination of Merriam-Webster:

For the past fifty years, dictionaries and statutory-construction treatises have instructed that when the term “and” joins a list of conditions, it requires not one or the other, but all of the conditions. See, e.g., Merriam-Webster’s Collegiate Dictionary 46 (11th ed. 2020) (defining “and” to “indicate connection or addition”); Antonin   Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116-20 (2012) (stating that “and” combines a list of conditions in a statute); New Oxford American Dictionary 57 (3rd ed. 2010) (stating that “and” is “used to connect words of the same part of speech, clauses, or sentences that are to be taken jointly”) (emphasis added); Oxford English Dictionary 449 (2d ed. 1989) (stating that “and” introduces “a word, clause, or sentence, which is to be taken side by side with, along with, or in addition to, that which precedes it”) (italics omitted); Webster’s Third New International Dictionary 80 (1967) (defining “and” to mean “along with or together with” or “as well as”).

See id. The Court then moved to acknowledging that “Congress recognized the problem and sought to give district courts more flexibility” in sentencing below mandatory-minimum sentences that were “unnecessary and harsh.” See Lopez at 435. In addition to Merriam Webster, the Court examined the Senate’s Legislative Drafting Manual 64.

The thrust of the argument lay with the fact that the Court determined that Section 3553(f)(1) is “a conjunctive negative proof.” Lopez at 436. To be eligible for the safety valve, a defendant must prove that he or she does not have the following: (A) more than four criminal-history points, (B) a prior three-point offense, and (C) a prior two-point violent offense. See id.

It only made a footnote, but Justice Scalia and Bryan Garner had an example of the opposite – disjunctive negative proof:

“To be eligible for citizenship, you must prove that you have not (1) been convicted of murder; (2) been convicted of manslaughter; or (3) been convicted of embezzlement.” See Scalia & Garner, supra, at 120 (emphasis added). The person applying for citizenship must “have done none” of the three conditions. Id. If a person is convicted only of murder, for example, that person is automatically ineligible for citizenship under this example of a disjunctive negative proof. See id.

Lopez at fn. 7.

The Court found that this was the opposite of what was intended by Congress with the First Step Act. Congress intended the statute to “allow judges to … use their discretion to craft an appropriate sentence that will fit the crime.” See Lopez at fn. 6.

The government argued that the conjunctive could produce “absurd” results. The government pointed out that a career offender with several drug convictions – but who did not have a violent act conviction – could be eligible for safety-valve relief under a conjunctive interpretation. Id. at 438–39. The Court disagreed that the hypothetical would lead to “absurd” results.  The Court found that a conjunctive interpretation results in § 3553(f)(1) not barring non-violent repeat drug offenders from a safety-valve application while violent repeat drug offenders will almost always be barred. Id. at 439. In another footnote, though, the Court dealt with the career hypothetical even more succinctly, noting that if a career drug offender did qualify for safety valve relief, a district court would still retain discretion to sentence the career drug offender above the mandatory-minimum sentence. Id. at fn. 8.

The government further argued that failing to read parts (B), 2-point violent offense, and (C), three-point offense, was superfluous in the conjunctive because any defendant who has (B) a “prior 3-point offense” and (C) a “prior 2-point violent offense” will always have five criminal history points and therefore meet (A) “more than 4 criminal history points.” Id. at 440. The Court concluded that a conjunctive interpretation did not render the language superfluous and noted that a three-point violent offense can simultaneously satisfy two subsections, (B) and (C), while not satisfying subsection (A). See id.

In sum, the majority stated that “courts must presume that a legislature says in a statute what it means and means in a statute what is says there…too many reasons – plain meaning, structure, the Senate’s own legislative drafting manual, and consistent interpretations” support its conclusion that § 3553(f)(1)’s “and” is unambiguously conjunctive. See Lopez at 441. Further, they noted that § 3553(f)(1)’s plain and unambiguous language could possibly result in more defendants receiving safety-valve relief than some in Congress anticipated…but sometimes Congress uses words that reach further than some members of Congress may have expected and Congress has “the authority to amend the statue accordingly” if “and” was supposed to be “or.” Id. at 444.

Dissent (in part)

Circuit Judge Smith wrote an opinion concurring in part and dissenting in part. The opinion focuses on the majority’s analysis of parts (B) and (C). Judge Smith focused on the fact that the Guidelines separate those two classes of convictions and the First Step Act included language stating this in § 3553(f)(1)(C)- a prior 2-point violent offense, as determined under the sentencing guidelines. He therefore agreed with the government that a conjunctive interpretation of “and” renders subsection (A) surplusage but also agreed with the majority that this superfluity does not change the outcome. Id. at 446.

Judge Smith’s opinion concludes that Congress may very well have intended that the safety valve exclude only a very specific subset of individuals or that there was something particularly disqualifying about having both a prior two-point violent offense and a prior three-point offense. Id. at 447.

Conclusion

In sum, Lopez clarifies and changes the scope of who may qualify for safety valve relief and practically who does not qualify – individuals with 4 total points, a 3-point offense and a 2-point violent offense. It’s time to ensure we evaluate our cases closely. Although, as the majority and dissent pointed out, just because they qualify does not mean that a judge does not retain the discretion to sentence above the mandatory minimum.

Shout Outs

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Congratulations to Robert Pelton of Houston for receiving the State Bar of Texas Presidents’ Award. The Presidents’ Award is presented at the State Bar of Texas Annual Meeting each year and honors exceptional service to the public and legal profession. Robert has been a previous recipient of the Richard Racehorse Haynes lifetime achievement award from HCCLA and the Jim Bomer award from the College of State Bar. He is also the creator and founder of the TCDLA Ethics Committee and hotline. Hats off to you, Robert!

We are happy to report a win for both the TCDLA Strike Force Committee and Paul Goeke. Judge Cohoon of the 451st District Court of Kendall County issued an order and contempt notice, which was ultimately withdrawn. Kudos to Don Flanary, Reagan Wynn, and Paul Goeke! TCDLA Strike Force assistance is available to any member of  TCDLA who is being persecuted for standing up for their clients.

After a 90-minute jury deliberation in Andrews County, Bret Mansur achieved a verdict of not guilty on a charge of continuous sexual assault of a child <14. Kudos, Bret!

Congratulations to TW Davidson, who achieved victory in multiple Cherokee county cases. Representing a man pre-indictment and then on an application for writ of habeas corpus. He kept the defendant from indictment in Part One of his grand jury proceedings. To avoid the examining trial fight, Davidson proposed a reasonable bond amount, which he wrote. His client was granted a long-awaited appeal after months of hard work. He then represented two young men charged with criminal trespassing on a Constables property in 2018. The Constable opened fire on the men unjustly, and contradicted himself while on the stand during cross-examination. After three long days…the jury delivered a verdict of not guilty. Amazing work, Thad!

Great work to Mitch Adams, whose DWI trial was dismissed mid-trial in Smith County. The prosecutor failed to provide a copy of the blood test prior to trial, so Adams objected the State’s lab chemist expert witness testimony. Congrats, Mitch!

Kudos to Sravanesh Muralindhar, who defended a client in a first-degree murder trial in Cherokee County. He argued, instead, for an aggravated assault with a deadly weapon charge, which he received. Way to go, Sravanesh!

Congratulations are in order for Adam Muery and team! It took them three long years to achieve an acquittal for their client on an aggravated assault charge. Justice has finally prevailed after persistent effort. Great work!

Randy Wilson’s Possession of Child Pornography case was dismissed after he presented criteria, stating what does and does not qualify as “child pornography”. Kudos, Randy!

Current Issue: July/August 2021

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Features

13 | Memories of TCDLA’s First President – By Frank Maloney
22 | 50 Year Member Pieces – By TCDLA Members
28 | 50 Years of Past Presidents – By TCDLA Past Presidents

Columns

4 | President’s Message
5 | Chief Executive Officer’s Perspective
6 | Editor’s Comment
7 | Ethics and the Law
7 | Chapter & Verse
8 | From the Front Porch
10 | Federal Corner

Departments

36 | Significant Decisions Report

President’s Message: July/August 2021

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I would like to highlight a few of the many benefits our members receive from TCDLA. One example is, during the pandemic, a fantastic group of TCDLA members agreed to help our membership with the COVID-19 Response Task Force. This committee was led over time by Clay Steadman, Allison Clayton, and Nicole DeBorde Hochglaube. It provided wonderful motions, cheat sheets, and other items to assist our membership with handling the specter of virtual trials during the pandemic. This committee proved to be a life line to our membership especially during the trying and lonely times of the pandemic.

Another example is the TCDLA Judicial Conduct Committee. Our brothers and sisters in the criminal defense bar sometimes encounter questionable actions by the judiciary. I have personally witnessed defendants on bond being placed into the court’s holding cell when the defendant refused to accept a plea offer so that the defendant would reassess whether or not to take the plea offer. In situations where you question actions by the judiciary, it is helpful to have a resource to whom counsel may report legitimate concerns without being subject to repercussions from the judiciary. The Judicial Conduct Committee acts as a buffer in such situations and provides counsel with the welcome assistance of very capable attorneys from other jurisdictions. The following is an example of when counsel may possibly encounter questionable actions by the judiciary and stems from the published opinion of Ex parte Gomez, Nos. PD-0724-20 & PD-0725-20 (Tex. Crim. App., June 9, 2021). A citizen was charged by complaint in Harris County with two felonies – burglary and assault by impeding airway. A magistrate set bail on the cases at $25,000.00 and $15,000.00, respectively, for a total of $40,000.00. The citizen accused made bond on the cases and, the same morning, he appeared in the district court to which the cases were assigned. The district judge, without a reporter’s record of the proceedings, revoked the bonds, ordered he be rearrested, and set bail at $75,000.00 on each charge, for a total of $150,000.00 – more than three times the amount set by the magistrate. Days later, the accused moved that the bonds be reinstated, but the district judge claimed she had heard probable cause, weighed several factors in determining the bail amounts, and denied the request. A writ was then filed to reinstate the bonds, but the judge denied relief by claiming that she evaluated the circumstances and adequacy of the original bonds and had discretion to increase the bail amounts. The Court of Criminal Appeals held that courts do not have unlimited discretion to hold that bonds are insufficient because a trial judge must consider relevant circumstances pursuant to Article 17.15 of the Code of Criminal Procedure, and a court’s “discretion does not allow it to use bail as an instrument of oppression or to ignore the accused’s ability to pay.” If a trial court arbitrarily found “insufficient bond,” the trial court’s action would be reversible for abuse of discretion. This case was remanded to the court of appeals to determine if the district judge acted arbitrarily. The excellent appellate team on this case consists of Thomas Branton “Brent” Mayr, Sierra Tabone, and Stanley G. Schneider. Time will tell what happens on this remand to the court of appeals.

If a TCDLA member encounters issues during a case for which assistance may be needed, such as a trial judge arbitrarily finding insufficient bond, revoking the bond, rearresting the client, and improperly raising the bail, know that TCDLA is here to help you. Remember that you are not alone in this stressful profession of ours. TCDLA has many committees that are here to assist you in times of need. Put them to use and get the full benefits of your membership. We value your membership in TCDLA and look forward to helping you.


Holcomb Strong
Cindy Holcomb & Randy Gilbert

Honor, integrity, and service defined Weldon Holcomb’s life. He was not only a superb lawyer, but also a friend and mentor. As a charter founding member of TCDLA, Past President, Hall of Fame recipient, and TCDLEI fellow, he had an unwavering commitment to the profession and its future. He willingly gave his time, expertise, and money to leave his profession in a better place than he found it.

His early years as the son of a barber and a child of the Depression taught him the value of hard work. He served as a B-17 bomber pilot in WWII, then used his GI Bill to get him through the University of Texas and UT Law School. Through his experiences he found a profound sense of gratitude which motivated him to constantly “give back” in all areas. As a Christian gentleman, his love of God, family, hometown and the law defined him. He practiced his faith demonstrably to everyone both high and low, with ethics and integrity going hand in glove with his Baptist faith.

Weldon loved practicing law first as an Assistant Attorney General, then as District Attorney of Smith County, and eventually as one of the top-rated Criminal Defense Attorneys in Texas.  He had several firsts including seating the first African American and first female on a Smith County jury.  He tried many notable cases, including the first use of TV cameras in the courtroom (Billy Sol Estes), and took a court-appointed case to the US Supreme Court and won (Wade vs. US). With his Stetson hat, suit, TCDLA lapel pin, cowboy boots, and pockets full of Peppermint sticks (Baptist cigars), he was the quintessential Texan.

He was fond of folksy sayings like “if syrup goes to five dollars a sop” and many young prosecutors fell into the trap of judging the book by its cover. They often discovered too late that behind the facade was a steel trap mind that could quote a governing case without a moment’s pause and left no stone unturned in the pursuit of justice for his client.

When asked in an interview how he wanted to be remembered, Weldon said that he wanted to be known as a lawyer that followed the law and the Constitution fairly for everybody regardless of who they were, what their race was, or what position they occupied in the community. He wanted it to be known that he was good for his word, and if he told you something you could put it in the bank. 

Weldon made a difference in his community and the practice of law. His involvement with TDCLA vastly upgraded the quality of Criminal Defense in the State of Texas. To use one of his favorite sayings… he never took more water out of the bucket than he put back in.

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