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President's Message

President’s Message: Room at the Table

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

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

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

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

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

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

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

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

President’s Message: Thanks

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I cannot believe that it has already been almost one year since the beginning of my presidency and that it is drawing to a close. I am looking forward to Heather Barbieri leading TCDLA throughout the next year. We are in good hands with Heather at the helm. I want to thank our CEO, Melissa, for making this a very good and very smooth year. We are very fortunate to have her as our CEO. Melissa and her staff are absolutely wonderful, and I want them to know just how much I appreciate their help and hard work this past year. I want to thank my executive committee for their wonderful help and thoughtfulness during this past year. I could not have asked for a better EC, and they certainly made my year a wonderful experience. You are all stars. I want to thank my committee chairs and their committee members for all of their excellent work this year on the various and difficult tasks I sent to them to solve for TCDLA. What an outstanding group of individuals. I also want to thank our membership for their loyalty to TCDLA and helping when called upon to help TCDLA. We are indeed fortunate to have such wonderful members of TCDLA. Thanks to everyone.

Be well.

President’s Message: Keeping the Geofence Shut

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We all remember in law school how Katz v. United States, 389 U.S. 347 (1967), evaluated recording devices in public telephone booths. Over twenty years ago, the Supreme Court in Kyllo v. United States, 533 U.S. 27 (2001), looked at thermal‑imaging devices and how they affected the Fourth Amendment. Just a few years ago, the Supreme Court then addressed cell‑site location data in Carpenter v. United States, 138 S.Ct. 2206 (2018). The hot new topic now is geofence warrants which request a user’s location data within a given time and a particular area.1 Google and other such companies collect large amounts of location data from users, and law enforcement are now issuing geofence warrants to obtain this stockpile of data.2 The question now for courts is whether or not these geofence warrants violate the Fourth Amendment. In Chatrie, the defense filed a motion to suppress the geofence warrant, and surprisingly, Google filed an amicus brief.3 Google argued that its location data “is not a business record, but is a journal stored primarily for the user’s benefit and is controlled by the user.”4 Google stated that location data “can often reveal a user’s location and movements with a much higher degree of precision than [cell cite location information].”5 Google argued that a user has a Fourth Amendment right in geofence information because users have a reasonable expectation of privacy in location data.6 For those of us brothers and sisters who have ever attempted to subpoena Google information for our cases, this is quite a change from Google’s invocation of the Stored Communications Act to quash our subpoenas.

A law enforcement geofence warrant served on Google identifies a geographic area (the geofence), identifies a period of time (a few minutes to a few hours), and requests location history for all users located within the given area during the given time.7 The first geofence warrant served on Google was in 2016, and there has been a 1500% increase in geofence warrants from 2017 to 2018 in addition to a 500% increase from 2018‑2019.8 The court expressed concern that Fourth Amendment law is “materially lagging behind technological innovations.”9 The court stated that a geofence warrant provides the government with an almost unlimited pool of location data and “‘whoever the suspect turns out to be’, they have ‘effectively been tailed’” because they enabled location history.10 The court was concerned with the Fourth Amendment violation of a geofence warrant because such a warrant “authorize[s] the search of every person within a particular area” which requires the government to “establish probable cause to search every one of those persons.”11 The court also could not determine whether or not the defendant voluntarily agreed to disclose his location history.12 The court saved the government with the good faith exception but cautioned the government that it was now duly warned that geofence warrants must establish particulared probable cause.13 Where does this leave those of us who are representing the citizen accused and encounter a geofence warrant? It is thought that the Chatrie order “could make it more difficult for police to obtain the warrants in the future — and more likely that judges will suppress evidence obtained from them, experts said.”14 “There are more and more of these warrant requests going around, and judges are starting to look more closely at them, and they are becoming aware of the problem with them.”15 The great work by the federal public defender in Chatrie is a lesson to all of us in how to ensure Fourth Amendment rights and other rights of our clients are properly evaluated and analyzed. We should all keep proper vigilance in our preparation and protection of the citizen accused in the face of a geofence warrant or whatever is awaiting us in the future. Good luck to you.

President’s Message: Thank You

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I want to take this opportunity to thank all of the hard-working people who are dedicating their time and talents to making TCDLA the wonderful organization it is for our members. Each of the committee chairs and members have been such a great amount of help for me during my time this year as president.

These excellent TCDLA committees are: Affiliate, Amicus Brief Curiae, Awards, Budget and Finance, By-Laws, Cannabis, Capital Assistance, Client Mental Health, Corrections and Parole, COVID-19 Task Force, Criminal Defense Lawyers Project, Diversity, Justice & Inclusion, DWI Resource, Ethics, Executive, Health and Wellness, Indigent Client Defense, ICC, Judicial Conduct, Juvenile, Law School Students, Legislative, Listserv, Long-Range Planning, Media Relations, Membership, Memo Bank, New Lawyers, Nominations, Past Presidents, Prosecutorial Conduct, Public Defender, Reapportionment, Rural Practice, Strike Force, Technology, Transcript Database, Veterans, Voice for the Defense, and Women’s Caucus. I also want to include the Texas Criminal Defense Lawyers Educational Institute and local Affiliate Criminal Defense Bars.

Almost daily, TCDLA s confronted with challenges from various areas of concern. It is a relief to know that I can refer these challenges to our brilliant committees knowing that I will receive a collective consensus on how to best tackle any given issue. I always know that I will get the most astute advice possible from these outstanding individuals. After obtaining the advice from a committee, I then refer the issue to our Executive Committee for their input. I want to thank my Executive Committee for their tireless and wonderful guidance during my presidency on the many issues we have faced together. Heather Barbieri, John Hunter Smith, David Guinn, Jr., Clay Steadman, Nicole Deborde Hochglaube, Jeep Darnell, Betty Blackwell, David Moore, David Botsford, Grant Scheiner, Monique Sparks, and Paul Tu each deserve our heartfelt thanks for their dedication and contributions to TCDLA. I am truly blessed to have such wonderful support from these individuals.

Last but not least, I want to thank our hardworking TCDLA staff and their excellent leader, Melissa Schank. The number of CLE’s alone that are produced by TCDLA keeps our staff working long hours and oftentimes away from home. Thanks so much for your service to TCDLA. Melissa is the leader that keeps all of this running for TCDLA. Her fortitude, experience, thoughtfulness, and steady hand at handling the many issues confronting TCDLA is truly awesome. I cannot thank her enough. The next time any of our members are at a TCDLA function, please take the time to seek out these people and thank them for their contributions to our wonderful organization.

In the future, it is my hope that our members who have not yet taken part in our committees will take the time to help our organization continue to grow by dedicating their time to committees or any other part of our organization.

President’s Message: Situation at the Border

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In 2021, the Texas governor initiated Operation Lone Star in an attempt to arrest people who had illegally entered into Texas in the general area of Val Verde and Kinney counties. This is a multi-billion dollar operation which involved deploying approximately one thousand DPS troopers and Texas National Guardsmen in support with about 70% deployed to Val Verde and Kinney counties.1 The governor authorized these individuals to arrest migrants for trespassing and other similar charges. Id. There have been over 2500 arrests as a result of this operation with approximately 8% of these cases as felonies and 2.5% accused of those felonies being alleged migrants. Approximately $29 million was allocated by the Texas legislature to pay for attorneys, investigators, and other individuals to represent these individuals.

The Neighborhood Defender Service (NDS) of Harlem opened this month an office in San Antonio, Texas to provide legal services to migrants who have been arrested as a result of Operation Lone Star.2 These NDS services are funded by the Texas Indigent Defense Commission (TIDC). Texas RioGrande Legal Aid has also been providing legal services to these accused persons and has also been provided funding by TIDC for these services. The remainder of these accused persons are represented by panel attorneys.

To handle this large amount of cases, the Presiding Judge of the Sixth Administrative Judicial Region appointed three judges to ensure timely bail decisions and rule on other issues arising in these cases. The defense attorneys who are attempting to provide the best representation possible for these clients have obtained several dismissals for various reasons or bail release for delay pursuant to Article 17.151 of the Texas Code of Criminal Procedure. These appointed judges were the judges ruling on these cases. The defense attorneys did excellent work in representing these clients before these judges and obtaining appropriate relief.

Last month, however, on December 8, 2021, the Kinney County Judge fired these three judges appointed by the Presiding Judge of the Sixth Administrative Judicial Region. See Petition for Mandamus in In re De La Cruz – De La Cruz, No. 04-21-00577-CR, San Antonio Fourth Court of Appeals. In this mandamus, it is alleged by our own Keith Hampton, Angelica Cogliano, and Addy Miro, that the Kinney County Judge ordered the termination of these three judges. Id. It is also alleged that the Kinney County Judge ordered that his court coordinator had sole authority to set court dates and docket cases for Kinney County. Id. The relator in this mandamus action, as of December 22, 2021, had spent 56 days in jail for Criminal Trespass, a Class B misdemeanor. Id. The issue in this mandamus is whether or not a county judge may sua sponte fire judges appointed by a presiding district judge of an administrative judicial region and prevent those judges from controlling their dockets. Id. As a result of the firing of these three judges, the relator remained incarcerated in the TDCJ Segovia Unit for a misdemeanor offense for which bond is authorized yet there is no setting on this case and his release on bond has been unreasonably delayed. Id. One has to wonder about the reason for the firing of these three judges. Hopefully, the reason for the firing of these three judges will be revealed during the course of this mandamus. Kudos to these TCDLA attorneys for their diligent representation of their client.

As Operation Lone Star continues to play out in Val Verde and Kinney Counties, we are confident that defense counsel will continue with such diligent representation of the more than 2500 people charged with criminal trespass and other such offenses and ensure that bail considerations are met along with other proper resolution of these cases.

President’s Message: Happy Holidays!

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“We are so grateful for all the sacrifices that you have made this year to support and serve others. May this Holiday season be a time for you to rest and recover, and to reflect on all that you have achieved.”

‑Anonymous

I do not know about all of you, but everything seems to be so much more difficult in our law practice these days. What was once easy to obtain in discovery or in witness interviews or trial preparation now seems so much harder. It sometimes feels like we are in quicksand. Add to these difficulties the strange emergence of jury trials during the pandemic. Masks and plexiglass and Zoom permeate the courtroom. In 2019 and earlier, a court coordinator could accurately tell us whether or not our case was going to trial the following week. No more. Everything seems to be in flux. These stressors may lead some to feel that our service to our clients and others is not appreciated. Ours is not an easy profession. It is not easy, for example, to enter a courtroom filled with 80 venirepersons and conduct voir dire on a murder case or other difficult case. These many stressors can sometimes be overwhelming. We have attempted to survive the pandemic and countless Zoom settings. We have maintained our law practices in spite of the difficulties resulting from the pandemic. We should remember, however, that we have adapted and overcome these stressors and should not allow them to dampen our holiday season. We are a TCDLA family and know that we may rely upon each other to get through these difficult times.

As we enter this holiday season and prepare for New Years, I hope each of us takes a moment to reflect on how our sacrifices this past year have helped and supported not only our families and friends but also our clients, their families, and their friends. My hope is that each of us may take a moment this holiday season and enjoy our families and rest up for this coming year. We need this time to recover and reflect on all that we have achieved. I wish the best for you and yours this holiday season and in 2022.

Happy Holidays!

President’s Message: Happy Veterans Day

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Happy Veterans Day to all my fellow veterans and those who support them. We remember those who went before us, those with whom we served, and those who came after us defending our great country. In 1918, on the eleventh hour of the eleventh day of the eleventh month, World War I realized a temporary cessation of hostilities – an armistice – between Allied forces and Germany. In the following year, November 11, 1918, came to be known as Armistice Day as proclaimed by President Wilson: “To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nations…” After World War II and Korea, the 83rd Congress decided to change “Armistice” to “Veterans” resulting in November 11th becoming a day to honor American veterans of all wars.

I am in awe of my fellow veterans – past, present, and future. My fellow United States Marines have distinguished themselves for the last 246 years in Tripoli, Chapultepec, Belleau Wood, Guadalcanal, Iwo Jima, Inchon, Chosin Reservoir, Khe Sanh, Hue City, and Fallujah. My brothers and sisters in the United States Army have distinguished themselves in the Battle of the Bulge, Normandy, Saint-Mihiel, D-Day, Naktong Bulge, Baghdad, Basra, and Haditha. My brothers and sisters in the United States Navy have distinguished themselves in the Coral Sea, Java Sea, Midway, Bismark Sea, and the China Sea. My brothers and sisters in the United States Air Force have distinguished themselves in the Berlin Airlift, MiG Alley in Korea, Operation Bolo, and Desert Storm. My brothers and sisters in the United States Coast Guard have distinguished themselves as America’s maritime first responder and protects our economic, national, and border security. Approximately 1.4 million people serve in the U.S. armed forces. That means that approximately 0.4% of the American population is active military personnel, and only about 7.3% of living Americans have ever served in the military. Id. Such an awesome responsibility on so few.

I am also proud to have served with many past and present judge advocates in all our services. Over the years, Military judge advocates have provided sage advice for commanders in all aspects of the military from courts-martial to civil affairs to rules of engagement. After military service, many of these judge advocates continue to distinguish themselves in their legal careers in the civilian sector.

What amazes me is how our veterans continue to serve their country after they leave the military – whether it be in government service or the civilian sector. I believe that the military training our veterans received enables them to overcome any obstacles placed in their way. We were all required to read and be familiar with reading lists while in the military. One book on the reading list was The Art of War by Sun Tzu who listed nine varieties of ground: (1) dispersive ground; (2) facile ground; (3) contentious ground; (4) open ground; (5) ground of intersecting highways; (6) serious ground; (7) difficult ground; (8) hemmed-in ground; and (9) desperate ground. Sun Tzu defined desperate ground as, “Ground on which we can only be saved from destruction by fighting without delay, is desperate ground.”

I think all of us, veterans or not, have been on desperate ground be it in our lives, in court, dealing with the government or our clients and their families, or elsewhere. I think of the criminal defense attorney battling an extremely difficult trial – be it a DWI or a capital murder death case – while dealing with the prosecution, judge, jury, or others. We can all have a sense, in this way, of what our veterans have been through during their military service. To better understand the sacrifice our veterans have given to this country and to better understand Veterans Day, I would suggest reading an outstanding non-fiction book, On Desperate Ground by Hampton Sides. This book provides you with a glimpse of our armed forces at the Chosin Reservoir during the Korean War. This book also informs you about how our military forces have overcome extreme difficulties in the defense of our country and why we should, indeed, observe Veterans Day.

President’s Message: October 2021

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As I write this article today, the second special session of the Texas legislature has ended, and the Texas Denial of Bail for Certain Crimes Amendment (2021) did not pass. As a result, this proposed constitutional amendment currently will not be on the November 2, 2021, ballot in Texas as a legislatively referred constitutional amendment. This amendment was designed to authorize a judge or magistrate to deny bail for certain crimes including violent or sexual offenses or continuous trafficking of persons. The Texas legislature, however, is scheduled to begin its third special session with five agenda items on September 20, 2021. Fortunately, this constitutional amendment is not on the current agenda. I want to thank our outstanding lobbyists – Allen Place, Shea Place, and David Gonzalez – and our excellent legislative committee for their wonderful efforts regarding this proposed amendment and many other legislative issues they successfully faced during this legislative year.

The Texas legislature, unfortunately, passed S.B. No. 6 “relating to rules for setting the amount of bail, to the release of certain defendants on a monetary bond or personal bond, to related duties of certain officers taking bail bonds and of a magistrate in a criminal case, to charitable bail organizations, and to the reporting of information pertaining to bail bonds.” This bill is forty pages in length and covers many bail issues. The bill requires a public safety report (risk assessment) on all offenses Class B and higher. The final version of this bill dropped the broad limitation on charitable bail organizations but retained some reporting requirements for charitable bail organizations. One concerning issue regarding this bill is as follows: “Except as provided by Article 15.21 (Release on personal bond if not timely demanded), Article 17.033 (Release on bond of certain persons arrested without a warrant), and Article 17.151 (Release because of delay), this bail bill amends Article 17.03 (Personal bond) of the Texas Code of Criminal Procedure, effective September 1, 2021, by eliminating personal bonds for the following: (1) persons charged with an offense involving violence (murder, capital murder, kidnapping, aggravated kidnapping, trafficking of persons, continuous trafficking of persons, continuous sexual abuse of young child or disabled individual, indecency with a child, assault where the offense is a felony family violence or a second degree felony committed against a judge or peace officer lawfully discharging their duties or in retaliation, sexual assault, aggravated assault, aggravated sexual assault, injury to a child/elderly/disabled individual, repeated violation of certain court orders, continuous violence against the family, aggravated robbery, taking or attempting to take a weapon from an officer, aggravated promotion of prostitution, compelling prostitution, or sexual performance by a child); or (2) while released on bail or on community supervision for an offense involving violence, persons charged with committing any felony or with assault, deadly conduct, terroristic threat, or disorderly conduct involving a firearm. A citizen accused of these offenses, however, may still bail out with a surety or with cash bail for those listed offenses.”

It is very concerning how indigent citizens and minorities will be adversely affected by S.B. No. 6. Many citizens charged with these offenses are currently able to be released from jail only by using a personal bond because of the very low amount required to be paid for release. How many citizens will be denied bail merely because they will be unable to afford a surety or cash bond? This bill will have a dramatic impact on county jails and magistrates. Jail populations will be increased resulting in a financial burden on counties throughout Texas. With respect to these and other adverse effects resulting from this bill, it was recently reported that, “Last month, the ACLU of Texas sent a letter to all 254 counties in Texas informing them that following the law “might land them in court.” SB6 “conflict[s] with our constitutional right to pretrial liberty and the presumption of innocence,” it said in a statement.1 Time will tell how our brothers and sisters in the criminal defense bar will handle these changes to the bail system in Texas. I want to let all of you know, however, that the Texas Criminal Defense Lawyers Association is here to help you with these and other challenges all of us face every day by providing the best continuing legal education possible.

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.

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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