Ethics and the Law: A Peek Behind the Curtain: The TX Attorney Grievance Process in a Nutshell

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The attorney grievance process is not something most lawyers want to think about. But chances are, even if you have never personally been involved in the grievance process, you know someone who has. Or maybe you’re a little curious about what goes on “behind the scenes” of the attorney discipline system. Either way, given the potential ramifications of a grievance to a lawyer’s livelihood, and the unique procedures and deadlines entailed, it is important to know what to expect should you ever receive that dreaded certified letter from the Office of Chief Disciplinary Counsel. 

Who can file a grievance?

Anyone with knowledge of attorney misconduct has the right to file a grievance against a Texas attorney. This includes clients, other lawyers, judges, and any member of the public. There is no standing or privity requirement to file a grievance.

The First Stage: Classification

Once a grievance is filed, the Chief Disciplinary Counsel (“CDC”) has 30 days to “classify” the grievance, meaning it must determine whether the grievance, on its face, alleges professional misconduct or a disability.  If the grievance does allege professional misconduct or a disability, it will be upgraded to Complaint status. If it does not, it will be dismissed as an Inquiry. Grievances alleging minor misconduct may also be referred, at CDC’s discretion, to the Client Attorney Assistance Program, which will attempt to resolve the issue between client and attorney outside of the grievance process.

If the grievance is dismissed as an Inquiry, the Complainant has the right to appeal the decision to the Board of Disciplinary Appeals (“BODA”). If BODA affirms the dismissal, the Complainant may amend the grievance one time by providing new or additional information. If the amended grievance is dismissed, the Complainant may again appeal that determination to BODA.

Approximately 70% of grievances are dismissed at the classification stage. Common reasons why a grievance might be dismissed at classification are:

  • The grievance alleges something other than professional misconduct or a disability. E.g., it complains about the outcome of a case or that the attorney was “rude.”
  • The grievance is barred by the 4-year statute of limitations.
  • The Respondent attorney has died, been disbarred, or resigned.
  • The grievance concerns a person who is not a licensed Texas attorney.
  • The grievance is a duplicate of, or identical to, a pending grievance.

The Second Stage: Investigation

If a grievance is upgraded to Complaint status, the Respondent attorney will be notified, provided a copy of the grievance, and given 30 days to file a written response to the allegations. CDC has 60 days from the date the attorney’s response is due to make a determination of “Just Cause,” although that time is extended if CDC sets the case for an Investigatory Hearing or issues Investigatory Subpoenas. 

Whereas the classification stage is limited to ascertaining whether a rule violation has been properly alleged, the investigation process seeks to determine whether there is sufficient evidentiary support for the allegations to warrant a finding of “Just Cause.” As part of its investigation, CDC may interview witnesses, subpoena bank records and other relevant documentation, and review court records, correspondence, files, settlement checks, etc.

This is a critical stage of the process and should not be taken lightly. Every effort should be made to properly and fully rebut the allegations and avoid a Just Cause finding, as once a case enters formal litigation, it will be much more difficult to obtain a dismissal and may entail costly and burdensome litigation. 

Investigatory Hearings & Subpoena Power

Effective June 1, 2018, amendments to the Texas Rules of Disciplinary Procedure instituted some important changes to the grievance process. Now, during the Investigation stage, CDC may issue subpoenas for documents, electronic information or tangible things and/or to compel the attendance of witnesses (including the Respondent attorney) at an Investigatory Hearing.

Investigatory Hearings are somewhat informal hearings aimed at facilitating the investigation and allowing for possible early settlement of the case.  These hearings are presided over by a panel of local grievance committee members.  The Respondent, the Complainant, and potentially other witnesses may appear and provide testimony or answer questions of the panel.  An investigatory hearing may result in a negotiated sanction, a finding of Just Cause, a referral to the Grievance Referral Program, or a dismissal of the complaint.

The Final Stage: Litigation

If the investigation results in a finding of Just Cause without a negotiated sanction, the case will proceed into litigation, at which point the Respondent can choose to have the case heard before a grievance committee or in district court. Formal discovery ensues and settlement negotiations may take place.  If no settlement is reached, the case will be set for trial. 

Trial proceedings before a grievance committee are confidential unless and until a public sanction is issued (at which point certain information becomes public). In addition, proceedings before a grievance committee can result in a private reprimand, an option that is not available in district court. Other possible sanctions available in either domain include a public reprimand, a probated suspension, an active suspension, a combination of probated and active suspension, or disbarment. 

Some cases that enter formal litigation are diverted to the Grievance Referral Program, a program designed to assist lawyers who have impairment or performance issues and who enter the disciplinary system as a result of minor misconduct. In exchange for a dismissal of the underlying complaint, the Respondent lawyer agrees to complete a remedial program individually tailored to the lawyer’s needs.

Other Statistics

  • The most frequently sanctioned misconduct is lack of communication with the client.
  • In the 2019-2020 Bar year, civil practitioners received the highest number of sanctions, followed by family law and criminal law practitioners.
  • In the 2019-2020 Bar year, 7505 grievances were filed, and a little over 300 sanctions were imposed. The number of sanctions imposed was lower than usual due to the impact of Covid-19 on disciplinary litigation.
  • The vast majority of grievance cases entering formal litigation proceed through the evidentiary process. Roughly 10% or less of Respondent attorneys opt to have their case heard in district court.

Conclusion

The attorney grievance process is cloaked in secrecy, and can be quite intimidating if you are unfamiliar with the process or what to expect. By educating yourself on the procedures, being responsive, and complying with deadlines, you greatly increase the odds of a successful outcome.

Federal Corner: Ensuring That Clients Receive Credit for Concurrent State Time

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Many of our clients are dismayed to learn that they face charges in federal and state court for the same exact conduct or for relevant conduct.  Fortunately, the federal sentencing guidelines provide that where the state offense “is relevant conduct to the instant offense of conviction under the [relevant conduct provisions], the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.”  (emphasis added).  U.S.S.G. § 5G1.3 Comment n. 3.  So problem solved, right?

Not exactly.  If the client was taken into federal custody on a writ of habeas corpus ad prosequendum, even if the judge sentences him to “concurrent time” with the state offense, the federal Bureau of Prisons (BOP) might not give him credit for all of the time spent in federal custody awaiting sentencing.  The Fifth Circuit’s decision in United States v. Taylor, 973 F.3d 414 (5th Cir. 2020) provides important guidance on how to ensure that clients awarded concurrent sentences for federal and state charges actually receive full credit for that time.

Importantly, Taylor recognized that district courts wishing to award credit for time served while awaiting sentencing should not attempt to award “credit,” and should not state a commencement date for the federal sentence earlier than the date of federal sentencing.  They should instead reduce the sentence by the amount of time the defendant has been in federal custody awaiting sentencing. Judge Wiener’s opinion reads, in part, as follows:

An Overview of the Case

Defendant-Appellant Tyvon Taylor appeals the 120-month sentence imposed by the district court following his plea of guilty to one count of being a felon in possession of a firearm. Taylor contends that: (1) The district court erred when it attempted to reduce the length of his sentence either by ordering that the sentence commence on a particular date or by ordering that he be given credit for time served, and (2) The sentence imposed by the district court is impermissibly ambiguous because the pronouncement that it “run concurrently with any sentence imposed by state authorities” does not specify with which state sentence or sentences, corresponding to four pending state court charges, the federal sentence will run concurrently.

We conclude that the district court’s attempted reduction of Taylor’s sentence was ineffectual and order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence regardless. We also conclude that the sentence imposed is ambiguous because it fails to identify the specific state sentence or sentences with which the federal sentence will run concurrently. We therefore order a limited remand for the district court to consider, and state on the record, whether that court would have imposed the same sentence knowing of the ambiguity.

The Federal Charges

In June 2018, a federal grand jury returned a one-count indictment charging Taylor with being a felon in possession of two firearms, viz. a .40 caliber Springfield Armory pistol and a Smith and Wesson 9mm pistol, beginning on or about August 12, 2017, and continuing until on or about August 15, 2017. In October 2018, Taylor pleaded guilty, and the district court ordered the preparation of a presentence report (PSR).

The “offense conduct” section of the PSR includes information about Taylor’s involvement in shootings on August 12 and 13, 2017. That section of the PSR also includes information regarding an August 15, 2017 traffic stop of a vehicle in which Taylor was a passenger during which officers found Taylor in possession of firearms.

The PSR reflects that, during the August 12, 2017 incident, Shreveport (Louisiana) Police Department officers responded to a shooting and located a victim suffering from multiple gunshot wounds. That victim identified Taylor as his assailant. Investigators located .40 caliber and 9mm caliber shell casings at the scene.

The August 13, 2017 incident involved officers responding to a call of shots fired and observing an empty vehicle crashed into a light pole. The PSR noted that investigators located spent shell casings and live rounds in and around the vehicle. The owner stated that Taylor had borrowed the vehicle. Taylor was identified as the person driving and shooting from the vehicle prior to the crash and was observed fleeing from the vehicle prior to the arrival of the police.

As for the August 15, 2017 traffic stop, the PSR recounted that, after procuring an arrest warrant for Taylor, police had arrested him during a traffic stop of a vehicle in which he was a passenger. The driver of the vehicle stated that once police attempted to initiate the stop, Taylor had pointed two handguns at him and accused him of setting up Taylor. As noted, police located a Smith and Wesson 9mm handgun and a .40 caliber Springfield Armory handgun in the vehicle. The analysis conducted on the two firearms in Taylor’s possession at the time of his arrest determined that they matched shell casings found at the scenes of the August 12 and August 13 shootings.

The Pending State Charges

The PSR also listed four pending state charges:

(1) July 31, 2017 (case number 351,576) related to possession of a firearm or carrying a concealed weapon by a convicted felon and illegal use of weapons during violence;

(2) August 12, 2017 (case number 351,577) related to attempted second degree murder and possession of a firearm or carrying a concealed weapon by a convicted felon;

(3) August 13, 2017 (case number 351,999) related to illegal use of weapons or dangerous instrumentalities and possession of a firearm or carrying a concealed weapon by a convicted felon; and

(4) August 15, 2017 (case number 351,578) related to possession of a firearm or carrying a concealed weapon by a convicted felon.

Taylor’s Sentencing Memorandum

Taylor did not object to the PSR, but he did file a sentencing memorandum in which he requested that his sentence be at the low end of the guidelines range and run concurrently to any sentences imposed in the four pending state court charges, pursuant to U.S.S.G. § 5G1.3(c):

If … a state term of imprisonment is anticipated to result from another offense that is relevant conduct to the instant offense of conviction under provisions of subsections (a)(1), (a)(2), or (a)(3) of § 1B1.3 (Relevant Conduct), the sentence for the instant offense shall be imposed to run concurrently to the anticipated term of imprisonment.

Taylor’s Request at Sentencing

At the sentencing hearing, defense counsel asked “the Court to specifically give Mr. Taylor the credit for time served from the date he was taken into federal custody, which is the July 9 of 2018 date.” Defense counsel noted that Taylor had already served nine or ten months on the state court charges prior to that date, and he speculated that the Bureau of Prisons would not credit Taylor for that time in state custody. Defense counsel suggested that the district court “go back and make the sentence retroactive to the July 9 of 2018 date.”

District Court’s Pronouncement of the Sentence

The district court observed that the guidelines sentence had been substantially increased because of the relevant conduct but determined that the application of the attempted murder guideline was appropriate. The court sentenced Taylor to the within-guidelines statutory maximum of 120-months imprisonment and a three-year period of supervised release.

In pronouncing the sentence, the district court stated, “[t]he judgment in this particular matter will show that this sentence is to run concurrently with any sentence imposed by state authorities on the conduct described, and this Court will begin the federal sentence as of the time he is taken into federal custody, which is July 9, 2018.” The written judgment provides, “[t]his sentence shall run concurrently with any sentence imposed by state authorities on the conduct described. Defendant shall receive credit for time served from July 9, 2018.”  At the sentencing hearing, defense counsel objected to the sentence to the extent that the statutory maximum sentence deprived Taylor of the benefit of a guilty plea.

Taylor’s Arguments on Appeal

Taylor here takes issue with the sentence imposed by the district court for two reasons. He first contends that the district court erred when it attempted to reduce the length of his sentence either by giving him credit for time served in federal custody prior to the sentencing (as did the oral pronouncement) or by commencing his sentence retroactively (as did the written judgment). Taylor also claims that the sentence is impermissibly ambiguous because it does not specify with which state sentence or sentences (corresponding to the four pending state court charges) the federal sentence will run concurrently. Taylor requests that we vacate his sentence and remand to the district court to permit that court to: (1) consider reducing his federal sentence by an amount equal to the period of time he served in federal custody prior to being sentenced and (2) clarify with which state sentence or sentences his federal sentence will run concurrently.

Taylor Invited the District Court’s Error

Taylor invited the district court’s error with respect to the backdated commencement of his sentence and the credit for time served in federal custody prior to being sentenced. At the sentencing hearing, defense counsel asked “the Court to specifically give Mr. Taylor the credit for time served from the date he was taken into federal custody … July 9 of 2018.” Defense counsel also suggested that the district court “go back and make the sentence retroactive to the July 9 of 2018 date.”

“The Fifth Circuit will not reverse on the basis of invited error, absent manifest injustice.” Manifest injustice occurs when the district court’s “error was so patent as to have seriously jeopardized the rights of the appellant.”

Taylor Argues that Manifest Injustice Occurred

Taylor insists that a manifest injustice occurred because (1) the district court intended to reduce his sentence by the number of days he served in federal custody prior to being sentenced and (2) the ineffectual sentence fails to do so. In the oral pronouncement of the sentence, the district court stated, “this Court will begin the federal sentence as of the time [Taylor] is taken into federal custody, which is July 9, 2018.” The written judgment provides, “Defendant shall receive credit for time served from July 9, 2018.”

What the District Court Should Have Done

The district court is not permitted to compute the credit for time served or to order the backdated commencement of a sentence. The BOP alone is authorized to take these actions.  If the district court intended to award Taylor credit for the time he served in federal custody prior to being sentenced, that court should have reduced his sentence accordingly and noted the reason for the reduction in the judgment. (emphasis added). 

The Fifth Circuit Orders Limited Remand on the Length of the Sentence

Although the limited remand is a seldom-used practice in this circuit, we deem that procedure warranted in a case such as this. It is not apparent here that the defendant was harmed by an error because it is not clear whether the district court would have acted differently had it known of the error.  We order a limited remand so that the district court may consider, and state on the record, whether it would have imposed the same sentence knowing that it could not order either that (1) the commencement of Taylor’s sentence be backdated or (2) Taylor receive credit for the time he served in federal custody prior to sentencing.  If on remand the district court clarifies that it would not have imposed the same sentence, then the error Taylor invited is manifest, and we would vacate Taylor’s sentence and remand for resentencing. If, on the other hand, the district court indicates that it would have imposed the same sentence even knowing the limitations regarding the commencement of the sentence and credit for time served, then we would conclude that no manifest injustice occurred and would affirm the sentence.

The Fifth Circuit Orders Also Orders Limited Remand on the Concurrent Nature of the Sentence

We conclude that the district court committed an obvious error when it imposed an ambiguous sentence that fails to specify with which of the state sentence or sentences the federal sentence will run concurrently. But it is not clear whether the ambiguous nature of Taylor’s sentence affected his substantial rights, so we order a limited remand for the district court to clarify, and state on the record, whether it would have imposed the same sentence had it known of the ambiguity.

Conclusion

We order a LIMITED REMAND to the district court to consider, and state on the record, whether it would have imposed the same sentence knowing that: (1) it could not effectively order the backdated commencement of Taylor’s sentence, (2) it could not effectively order that Taylor be given credit for the time he served in federal custody prior to being sentenced, and (3) the sentence is susceptible of more than one reasonable interpretation. We retain jurisdiction over this appeal pending the district court’s answer to our inquiry.

My Thoughts

  • Clarity is key to ensuring that our clients receive credit for concurrent time.
  • Asking the Court to reduce your client’s sentence by the amount of time awaiting federal sentencing is not a downward departure or a variance.  Rather, it is an adjustment contemplated by the guidelines, and now by the Fifth Circuit.  See United States Sentencing Guidelines § 5G1.3, Comment n. 2(C).

From The Front Porch: October 2021

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Criminal defense attorneys are an independent-minded group, especially in rural areas. Whether you came back home to practice law or ditched the big city headaches to practice in a small town, you have shunned the traditional law firm experience for one reason or another. Unfortunately, this independent streak can be accompanied by a selective interpretation of norms you must follow. One example is the requirement of having an IOLTA, which stands for Interest on Lawyer Trust Account. For advice on this article, I called Ellen Pitluk, an ethics attorney with the State Bar.  We discussed three common excuses typically heard among criminal defense lawyers for not keeping unearned legal fees in an IOLTA.

Excuse #1: I’m a criminal defense attorney, and I don’t handle these types of funds. IOLTA accounts are for civil attorneys with shiny shoes and rolling file folders.

Harsh reality: Wrong! The Texas Disciplinary Rules of Professional Conduct make no distinction between civil and criminal fees. The only difference is that we can NOT charge contingency fees in criminal cases. Rule 1.04(e).  I will not insult your intelligence by explaining why you don’t charge contingency fees in criminal cases, only to say if you do, stop now.

Excuse #2: I always charge a flat fee. My contract says my fees are earned when paid, and it clearly states it is nonrefundable.

Harsh reality: This is false. Rule 1.14 (a) of the Texas Disciplinary Rules of Professional Conduct says you must keep a client’s unearned fees separate from your law office’s operational funds or your own personal funds. So your contract says you’ve earned it. How? Imagine going into a doctor’s office, and they charge you a nonrefundable bill before they even examine you. How about going to an accountant and paying them a nonrefundable fee before they have even looked at your books. You would think something was fishy. So don’t do it. Period.

Excuse #3: I give back the money if there is a dispute, so what does it matter which account it’s from?

Harsh reality: If a client has a problem and files a grievance, you will get dinged. Hard. Once again, Rule 1.14 (a) clearly states you can’t commingle client’s funds with your funds. By depositing unearned legal fees in your operational or personal account, you have, in essence, commingled funds and violated Rule 1.14(a).  Remember the adage, “Follow the money?”  All it takes is one disgruntled client to complain.  Money issues are something the bar takes very seriously and commingling funds may result in a disciplinary sanction published in the Texas Bar Journal.

So what should you do now that you know these excuses will get you in big trouble? First, get an IOLTA account. Then, get a system in place that allows you to reasonably justify taking the money fee out of that IOLTA account. For example, charge by the hour and keep track of your time. Is this too much of a pain? Ok, put benchmarks in your flat fee contract. For example, you can spell out that you earn 25% of the total fee at the arraignment, 50% at the first pretrial hearing, etc. Just put in something that spells out your fee agreement. It’s not as hard as you think. See, Professional Ethics Committee Opinion 611 (September 2011) (discussion of nonrefundable fees and benchmarks).  You can also call the State Bar of Texas Ethics Helpline at 1-800-532-3947 for more detailed advice. The ethics attorneys will provide preventative ethics advice to assist you. These are great people, and they will take the time to help you with your questions.

In conclusion, I hope this has helped disabuse you of some common misconceptions about IOLTA accounts. Yes, they can be a bit of pain, but not unnecessarily so. And not having one is far worse.  For a guide on IOLTAs, see “A Lawyer’s Guide to Client Trust Accounts” at https://www.texasbar.com/Content/NavigationMenu/ForLawyers/ResourceGuides1/TrustAccounts/GuidetoTrustAccounts.pdf.  Special thanks to Ellen Pitluk for taking the time to speak with me about this article and to answer my questions! As always, take care, good luck, and have fun!

Shout Outs

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Kudos to Mark Thiessen, Amanda Culbertson, and Andrew Gendi, who received a verdict of Not Guilty on a DWI charge after the officer failed to ask the client if they had anything in their mouth (gum/bite guard for migraines), which invalidated the intoxilyzer test. Congratulations to all!

Amazing work to T.W. Davidson who gave his client her life back. The 55 year old Defendant with a first degree felony charge and $243,000+ due was facing life in prison. Ultimately, the court ruled that his client was in a situation where, through no fault or action of her own, it was “legally and factually impossible” for her to pay the outstanding restitution. With tears of joy flowing, the client and counsel hugged in victory. The case was DISMISSED.

Ervette Sims received a NOT GUILTY on aggravated assault with a deadly weapon in Denton County recently. This was a self-defense case full of missing evidence that just so happened to be favorable to the Accused – her 911 call for instance. The jurors were educated, some wore masks, and some stayed around after the NG verdict to hug the newly-acquitted Accused. Outstanding job, Ervette!

Shout-Out to Paul Morgan for passionately defending his client, who was only 17 years old at the time of the alleged offense. Paul suffered personal attacks from the State’s counsel, but ended up with a Capital Murder Reversal! Way to go, Paul!

In September, Westerners International awarded Chuck Lanehart the Coke Wood award for best published article of 2020, “Custer, Captive Girls and the Cheyenne on Sweetwater Creek,” originally published by the Lubbock Avalanche-Journal. The story is also a part of Chuck’s book, Tragedy and Triumph on the Texas Plains, published in May 2021 by the History Press and available at booksellers everywhere. Congratulations, Chuck!


Staff Highlights: TCDLA’s Accountant

Cris Abascal

Title: Accountant
Native State: Texas
Zodiac Sign: Gemini
Favorite Color: Turquoise
Loves to: Spend time with her grandson
Interesting Fact: She has a plate and 12 screws in her ankle from an accident when she was young.  

Cristina Abascal has been with TCDLA for thirteen years. She has twelve years of nonprofit experience in accounting and auditing. Her hard work, dedication, efficiency and ability to adapt to change are her greatest strengths. When she is not at work she is enjoying spending time with her first and only grandson Elijah.

Current Issue: September 2021

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DOWNLOAD PDF VERSION

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!

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