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Operation Lone Star

The Premise

In March, 2021, Governor Greg Abbott announced Operation Lone Star, (OLS) a law enforcement initiative aimed at arresting single males for Class B criminal trespass upon their entry upon private property along the Texas-Mexico Border. At the same time, he declared 42 counties as disaster areas. The Department of Public Safety was charged with sending between 500 and 1000 State Troopers to the border to enforce state trespass laws at a cost of approximately 2.5 million dollars per week. The DPS executed memoranda of understanding with private landowners along the border so they could enter the property and arrest anyone they saw on the property without permission. Initial arrest rates were projected at 200 arrests per day. According to Governor Abbott, from the outset, the purpose of the initiative was to stem the tide of dangerous human and drug traffickers crossing the border. See: CNN’s @RosaFlores reports https://t.co/UPtF19o9NZ.

Enter the Lubbock Private Defender Office

In July, 2021, the Texas Indigent Defense Commission approached the Lubbock Private Defender Office (LPDO) to act as the central hub for providing defense services to those arrested under OLS. LPDO agreed and virtually overnight became the central authority to receive requests for attorneys and assign those cases to attorneys. Texas RioGrande Legal Aid (TRLA) took over 560 of the first round of cases. Private counsel and other private defender organizations were recruited to handle the remainder of the cases flowing in. Thankfully, the projected 200 arrests per day has yet to be realized, but currently, over 1,500 cases have flowed through LPDO to various defender organizations and private counsel. Thirty-Seven (2.4%) have been felonies with the majority of those being American citizens, not foreign nationals.

While the majority of clients have been Mexican Citizens, we have seen clients from Venezuela, Guyana, Haiti, Honduras, Columbia, Cuba, and various other countries of origin.

In order to implement these measures, the Texas Supreme Court issued an Emergency Order suspending various provisions of the Code of Criminal Procedure to allow for LPDO to act as the appointing and payment authority for OLS cases. The Court modified 26.04 to allow TIDC to approve procedures that differ from the Indigent Defense Plans of the various counties involved and authorize alternative methods of appointing counsel. It also allows, contrary to 26.04, for appointment of any counsel from any county in Texas to represent an OLS client on a felony charge. In short, TIDC tapped LPDO to provide indigent defense services for all OLS cases and is fully funding that effort.

A special process has been established to handle the magistration and processing of all OLS cases. Once arrested, all OLS arrestees are taken to “The Tent” in Del Rio where they are magistrated remotely by retired judges recruited by the Office of Court Administration. Once magistrated, LPDO receives a referral for appointment of counsel, and the arrestee is transferred to the Briscoe Unit of TDCJ in Dilley Texas or the Segovia Unit in deep South Texas to be held in one of these repurposed prisons until disposition of their case.

The prison units are having to be air conditioned and up-staffed to meet jail standards and accommodations for Zoom conferences and Zoom hearings are being increased to handle the additional requests for attorney-client meetings as most of the attorneys involved are dozens if not hundreds of miles from the unit. LPDO has had to contract with interpreters to handle interpretative duties, as most of the attorneys recruited do not speak Spanish, the primary language of those arrested.

For those attorneys not a part of an organization, LPDO has contracted with investigators to assist in the necessary investigations in some cases. Also, TIDC has increased funding for myPadilla to offer immigration consults on all cases under the OLS umbrella.

Most of the cases have been from Val Verde and Kinney Counties, overwhelming the capabilities of local clerks, judges and prosecutors. Most of the cases, over 97%, have been misdemeanors, and most of those have been criminal trespass.  With the involved counties being declared a “disaster area,” the cases are all enhanced to class A punishments. (Interestingly, Throckmorton County, north of Abilene is counted as one of the 42 Counties in the Disaster Declaration.)

Because of the overwhelming numbers, TRLA and other defenders have been successful in securing the release of hundreds of clients under Article 17.151 of the CCP. The prosecuting authority has been unable to meet the 15 and 30 day deadlines of 17.151 for filing cases.

Going Forward

I have told the media that, like Pearl Harbor, this initiative came as a complete surprise to us. The difference in 1941 and now is, it was as much a surprise to the other side as it was to us. Fortunately, we have been able to build capacity quickly to stem the tide of casualties. Between TRLA, Restoring Justice out of Houston, and the many private counsel and small firms who have stepped up to assist, we have been able to assign counsel in a reasonable time in nearly all cases.

Going forward, we are contracting with at least one additional public defender office. A recently signed contract will bring a team of 19 lawyers, social workers, investigators, and paralegals to San Antonio to work exclusively on OLS cases. Salaries will be competitive, and they will be looking for courtroom-ready, Texas-licensed lawyers to fill those slots.  You can send your resume to me if interested in applying. I will forward it to that office.

Additionally, we are looking for a resource attorney to help oversee and serve the attorneys working OLS cases. The application and job description for that position can be found at www.LPDO.org

We are passionate about ensuring every individual arrested under the OLS umbrella has access to quality counsel who will aggressively represent them in these charges. If you want to be one of those lawyers, please let us know.

HIPAA in the Age of COVID

Most of us are familiar with the Health Insurance Portability and Accountability Act of 1996, better known as HIPAA. While digital discovery and electronic transfer of records is no new thing, COVID stomped on the accelerator pushing lawyers into technology and e-practice. A lot of us are stumbling into the digital realm and safeguarding the Protected Health Information (PHI) we have in our possession probably isn’t the first thing on our to do list. Unless you want to risk the potential of fines between $119 and $59,522 per violation, you’re going to want to pay attention. 

To understand if your practice falls under the regulations of HIPAA, you first need to look at the Texas Medical Records Privacy Act (TMRPA). The TMRPA’s definition of a covered entity is broader than the Federal Law. If you create, receive, store, or work for someone that creates, receives, or stores PHI, you fall under TMRPA. Texas Health and Safety Code §181.001(b)(2)(A-D) Essentially, if you come into contact with PHI, you’re a covered entity and will need to comply with the requirements protecting that information.

What is Protected Health Information (PHI)?  PHI is information, including demographic information, which relates to an individual’s past, present, or future physical or mental health condition, healthcare, or payment for the healthcare information that identifies the individual.  45 C.F.R. §160.103 This includes information transmitted by electronic media, maintained in electronic media, or “Transmitted or maintained in any other form or medium.”  Id.  So, if it’s medical information that can be tied to a specific person, it’s probably PHI.

As criminal defense attorneys there is a really good chance we’ll end up being covered entities regulated by HIPAA and TMRPA because of the information that we come to possess regarding our clients: from the mental health records we receive for a mitigation packet or for a grand jury presentation, to the TDCJ records that include infirmary trips, to the SAFPF records that include counseling information, to the UA results for a pre-trial check in, or to the discovery with EMT or blood draw records, the potentials are pretty limitless. Remember too that it does not have to just be our client’s PHI. Records we receive on third parties like witnesses or family members still fall under HIPAA and TMPRA regulations.

What does it mean then that we are covered entities maintaining confidentiality of PHI?  Obviously secondary possessors of PHI like attorneys were not the main focus of HIPAA or the TMRPA. PHI is not our main focus, but we are still required to protect medical privacy. Big picture is two things: 1) We cannot release PHI without a proper release; and 2) we have to comply with other provisions of HIPAA and TMRPA for safeguarding, training, and notice requirements. 

Under what circumstances can a party re-disclose PHI that we have received? The first is to have a valid court release such as a subpoena signed by the Judge, a Grand Jury subpoena, or an administrative subpoena that authorizes a covered entity to re-disclose PHI in their possession.  However, that is not the most likely scenario for when we will re-disclose PHI. Usually,  those subpoenas are going to go to the people creating the PHI. We will need a valid release to re-disclose PHI.

A valid release is more than just a set of initials on your intake contract saying you can use a client’s medical records for anything we need. Texas Health and Safety Code 181.154(d) tasked the Attorney General with creating a standardized form to comply with signed releases to comply with TMRPA and HIPAA. The 2013 form has some specific requirements like designating who the documents are being released to (not just “anyone who wants them”), the purpose of the release, a description of the information to be used or disclosed, and a specific expiration date. Additionally, there must be a separate statement for release of mental health records, drug or alcohol information, or HIV records that are to be released. The Attorney General’s standardized form is available at https://www.texasattorneygeneral.gov/sites/default/files/files/divisions/consumer-protection/hb300-Authorization-Disclose-Health-Info.pdf. Your releases are allowed to be in written or electronic format, or even orally given as long as properly documented. Tex. Health &Safety Code 181.154(b) Best practices though: GET IT IN WRITING.

What constitutes a valid signature? It’s easy enough when a client is in person with a State ID to verify who is signing your release. But gone are the days of ink and pen, and an electronic signature is acceptable as long as it is valid under applicable law. The touchstone is the ability to verify that the signature is valid, and the person signing has the authority to do so. There are some programs, SIGNiX, eSignLive by Vasco, and Adobe Sign have been found to comply with HIPAA requirements of verification.

What about just safeguarding the records in our file? Is your USB drive encrypted? Can you use your Hotmail account to e-mail the records to another attorney or the Judge? How complex is your password? These are all things that HIPAA and through it the TMRPA expect you to have considered and made a plan for. The TMRPA adopts the standards of HIPAA at Texas Health and Safety Code 181.004.  HIPAA lays out standards to ensure confidentiality, protect against reasonably anticipated threats, protect against reasonably anticipated non-permitted uses or disclosures, and ensure compliancy by your workforce. 45 C.F.R. §164.306 It does not make a list of “do this and don’t do that” but requires that any covered entity assess the level of risk to accidental disclosure, make a plan, and justify what choices were made and why.  The goal is that if there ever is a breach, we can show we did everything we could to avoid it.  Here are some highlights of best practices:

Encryption

Encryption renders PHI unreadable and undecipherable. The data can only be read if a key or code is applied to decrypt the data.  While encryption is not required for all ePHI data, HIPAA-covered entities should conduct a risk analysis to determine the level of risk and if encryption is not used what other safeguards are used in its place.  There are many options for encryption programs out there, both free and paid. Before you go drop off that USB for the District Attorney, take a look at https://www.techradar.com/best/best-encryption-software for some ideas.

Passwords

Even though passwords are usually the front line to prevent unauthorized access to data, the only requirement in HIPAA is that covered entities create “Procedures for creating, changing, and safeguarding passwords.” The National Institute of Standards and Technology (NIST) recommends a password be between 8 – 64 characters, using passphrases instead of previously recommended complex passwords that people forget or write down to remember.  So instead of using a complex sequence of numbers, letters, and symbols, use something only you would know as a passphrase like “Mywifesbirthday!JanuaryFirst1980”.

Third Party Storage

Are you using another company to maintain your files? If so you’re going to need a business associates agreement. 45 CFR §164.308(b) A business associates agreement is simply a written agreement that the third party you are paying is going to take all of the necessary steps to protect your data instead of you doing it yourself.

E-mail

Not all e-mail is created equal. Using your 45 hours of free AOL access to send ePHI documents to your expert or the judge is not secure. If you’re e-mailing ePHI you need to make sure your e-mail is HIPAA compliant. To do that you need a few things: 1) End to end encryption; 2)  a business associates agreement with your email provider; 3) make sure to configure your e-mail correctly; and 4) have policies and training for your staff for e-mailing ePHI. Talk to your e-mail provider about making your e-mail HIPAA compliant on how to set up your account to send HIPAA compliant e-mails.

If you’re not a solo practitioner, you have to make sure that you’re training your associates too. Texas Health and Safety Code 181.101 requires training of employees on both State and Federal law regarding any PHI they may come into contact with. That training must be done within 90 days of hire, and the employee is required to sign a statement verifying the training. Tex. Health &Safety Code 181.101(a) & (d) 

And why are we doing all of this? Because we want to avoid the enforcement arm of HIPAA and the TMRPA.  The TMRPA in addition to injunctive relief provides for civil penalties: $5,000 per violation for negligent violations and $25,000 per violation for intentional or knowing violations up to $1.5 MILLION per year. Texas Health and Safety Code §181.201. As noted above, the Department of Health and Human Services published a final rule increasing the civil penalties for 2020.  For violations the covered entity did not know about, fines can be between $119 and $59,522 per violation.  If the violation is due to willful neglect the penalty jumps to between $11,904 and $59,522 per violation. 

These are not nebulous threats.  In May 2017 HHS levied a $2.4 million civil penalty against Texas Health Systems after they released the name of a patient who had presented fraudulent identification and was subsequently arrested.    Concentra Health Services in Addison, Texas was fined $1.7 million after an unencrypted laptop was stolen from its facilities. The largest HIPAA fine to date has been against Anthem Health in 2019 for $16 million dollars for failing to protect patient data.

So what do we take away from this? It is to remember that as we implement new technology and new ways of doing business into our practices we be aware of steps to make sure private client information stays private. A lot of us may be old hat to encrypted transfers and two step verification, but there are lot of lawyers (and their staff) who are not. Take the time to learn about the new technology you’re using, and how to use it better to comply with privacy of all kinds.

Texas Forensic Science Commission Update

George Rodriguez spent nearly two decades behind bars before a panel of forensic scientists determined that the analyst who testified at his trial was either incompetent or knowingly perjured himself. This revelation led to a 2004 audit of the Houston Police Crime Laboratory, which exposed a systemic pattern of poor training, data misinterpretation, and sample storage violations. In response, the Texas Legislature imposed an accreditation requirement onto Texas forensic science laboratories and created the Texas Forensic Science Commission (TFSC) to investigate allegations of negligence and misconduct.

The Commission is made of nine members appointed by the Governor of Texas – seven scientists, one prosecutor, and one defense attorney. The Commission, including TCDLA’s own Mark Daniel, are still today engaged in various forensic development initiatives, working collaboratively with stakeholders in the criminal justice system to improve education and training in forensic science and the law. Over time, the Texas Legislature has expanded and clarified the role ascribed to TFSC under TCCP 38.01. Currently, the Commission serves four main purposes: (1) investigate complaints of misconduct, (2) accredit crime laboratories, (3) adopt administrative rules for the use of certain disciplines in the courtroom, and, (4) as of 2019, license individual forensic analysts. 

1. Licensing Requirement

Prior to 2019, the accreditation requirement was already implemented for laboratories conducting forensic testing in Texas. The new Forensic Analyst Licensing Program now requires each individual acting as a forensic analyst to have their own individual license on top of the already existing requirement that the laboratory for which they work be accredited. The statute lays out which disciplines are subject to the licensing requirement:

License Required:

  • Drug sample testing
  • Toxicology
  • Forensic Biology (DNA)
  • Firearm & Toolmarks (ballistics)
  • Document comparison
  • Trace comparison (gunshot residue, footprints)

No License Required:

  • Latent fingerprint examination
  • Intoxilyzer breath test
  • Digital examination
  • Text excluded under Article 38.01
  • Presumptive tests (for parole or probation violations)
  • Text done primarily for scientific research or medical practice
  • Forensic Pathology
  • SANE examination
  • Forensic anthropology, entomology, or botany
  • Environmental Testing
  • Accident reconstruction
  • Serial number restoration
  • Polygraph examination
  • Voice recognition
  • Statement analysis
  • Forensic odontology
  • STI testing
  • Arson investigation
  • Forensic photography
  • Non-criminal paternity testing and tissue testing
  • Forensic Psychology

The new forensic licensing program brings with it a number of benefits to defendants and defense attorneys. One benefit is the ability of the Commission to reprimand individuals after a determination that misconduct has occurred. TFSC now has the authority to revoke or suspend such a person’s license, or refuse to renew their license once it expires. If an analyst’s license is suspended under this provision, the Commission can put that individual on probation, and impose conditions on that probation such as requiring they report regularly to TFSC or take classes to improve the areas that are the basis of the discipline. Additionally, this licensing requirement leaves open a new vehicle by which we can exclude expert testimony. Going forward, we must always check the license requirements and status for each expert noticed by the State.

2. Public Database

Given its vast regulatory functions involving forensic sciences, TFSC maintains a wealth of information and data on forensic laboratories and laboratory personnel, including applications and materials on accreditation of forensic laboratories, as well as records relating to complaints, disclosures, serial number discrepancies, mistakes, errors, spills, misplaced or lost samples, misconduct, false entries and other laboratory noncompliance issues.  Texas law requires that all of these matters be reported to the Commission.

Much of this data and information has historically been available to the public through public information requests, which often involved a cumbersome and time-consuming process. However, TFSC announced this past April that it will be making all of this invaluable public information readily available through a public database hosted on its website. The database, which launched in June, is scheduled to be made accessible in November 2021. This database will be a vital resource for criminal defense attorneys across the state.

3. New Disciplines

The field of forensic science is ever evolving and growing, with new specialties and testing being developed continuously. Sometimes, this may lead to unreliable sciences being offered as proof in court. Some of the previously admitted sciences now determined to be unreliable include forensic odontology, hair microscopy, retrograde extrapolation, and arson investigation. There are two new areas that Texas criminal defense attorney must be aware of in the coming years: Rapid DNA Testing and Marijuana Testing.

Rapid DNA Testing: In 2018, the FBI approved Rapid DNA Identification – a DNA analysis developed by ANDE corporation which provides results in less than two hours. Such rapid testing would allow suspects to be swabbed at booking and their samples run through the database immediately. However, none of the entities performing this test are accredited by TFSC. Additionally, Rapid DNA Identification use at crime scenes also comes with its own limitations: crime scene DNA samples may be mixtures, or they may contain low quantity or quality DNA. Even if a quality sample is collected, there are currently no approved expert systems for crime scene samples, and law enforcement collecting crime scene samples do not have the education, training or experience necessary to assess the crime scene evidence and determine the type of testing to achieve the optimal results. As currently marketed, Rapid DNA analysis will become a law enforcement database with no restrictions, quality controls, or standards, making it largely unreliable.

Marijuana Testing: In December of 2018, the Texas Legislature passed the Agriculture Improvement Act, which legalized the industrial production of hemp. With the new law, THC concentrations under .3% are considered legal hemp, but the laboratories do not have the instrumentation to quantitate the amount of THC in a sample. In order to compensate for this lack of quantitation, some Texas laboratories have modified the DEA approach to cannabinoid testing, adding a visual examination for “cystolithic” or unicellular hairs. If the sample contains THC but the analyst cannot observe any hairs, the substance is reported as simply THC. If the sample contains THC and the analyst does observe hairs, the substance is reported as marijuana.

However, this method is tenuous under Texas law, which distinguishes between legal and illegal Cannabis products by the part of the plant the product is derived from. Since Texas law groups the derivatives of the plant with the portion of the plant it was derived from, the visual inspection component does not provide any meaningful information. This leaves the THC detection alone, without proper quantitation, as an insufficient method to distinguish between products originating from the stems and seeds; flowers and leaves; or preferentially extracted from cystolithic hairs.

Mark Daniel’s term as the TCDLA representative to the Commission ended on September 1, 2021. Mark was appointed to the Commission in November 2016. The Commission wouldn’t have been what is has been during his term and what it has grown to be without his participation and leadership. Mark has done an amazing job representing citizens accused, their counsel and thereby, all citizens of the State of Texas on the Commission. He used his special talents to move between the scientists and the representatives of legal interests to secure the implementation of many practices which make forensics in Texas more transparent than any other state in the union. Maybe the crowning jewel in Mark’s work at the Commission is the public data portal which is in the final days of beta-testing and modification. This portal will give practitioners access to the records of each licensed lab and lab worker along with any complaints self-disclosed or otherwise against a lab or an employee or associate thereof. The portal will also provide access to the disposition of the complaint. Counsel will have the information at her hand to confront witnesses who claim special forensic expertise in an efficient and effective fashion like never before. We couldn’t have been better served or more grateful as an association! Thank you, Mark!

Thank you to Bill Hines of Austin for serving us so well on the licensing advisory committee of the Texas Forensic Science Commission for the past three years. We are appreciative and grateful that he selflessly devoted his time in the pursuit of justice. He will be stepping away in January 2022, and will be replaced by Angelica Cogliano of Austin.

Court Appointed Attorneys are “Cop Out” Attorneys

In my fifty plus years of practicing criminal defense, I have heard the above title more times than I can count. And, to a certain extent, I agree, for several reasons. Let me begin by explaining that in State appointments, the attorney is faced with very marginal, and in many instances, well below adequate compensation for the time required in representing a court appointed client, due to the fees that are allowed by the judges and county commissioners. This is especially true in the smaller and more rural counties.  What is striking in this resolve is that the judges make their normal salaries for their work, the prosecutors make their normal salaries for their efforts, the bailiffs make their normal salaries for their employment, the court reporters make their normal salaries plus payment for their work on appeals, and the law enforcement officers make their normal salaries for their investigation and testimony. However, the defense attorney is required to perform his or her duties with substandard compensation, limited sources of funding, and often having said compensation/funding reduced by the judge when the case is disposed by trial or plea regardless of the amount of time an attorney has had to put into his representation.  Often times the court appointed attorney does not put the time and effort that should be devoted to a particular case, as a result of overhead costs, family expense, and in today’s society, repayment of student loans. However, I have seen some court appointed attorneys who “padded their vouchers,” others who do not even set up files, others who try to convince their client to plead guilty to keep from going to trial, and some who have no business proceeding to a jury trial due to lack of experience or fear of jury trials. This is not to say all court appointed attorneys fall into these categories. I have known many very fine and competent court appointed attorneys who are without any of these faults. I am writing this article to provide attorneys, who accept court appointments (State or Federal) with practical tips that will aid in practice and dispel the title of this article. I would encourage you as a defender of the “citizen accused,” to at least try them out.

State Appointments

  1. Go and see your new client in custody or have the client come to your office if they are on bond. In this regard, I suggest that you do so at times when it does not take away from your “paying clients” (i.e., on your way home at the end of the day; on your way to the office in early morning; on weekends, when it is less crowded, or at vacancies during your office hours).
  2. If you are unable to meet with your client in person, quickly send a letter to the client telling them when you will be there to visit or setting an appointment in your office at a “lax time”. Try not use “Zoom” or “phone” – you need to see your client in person and let them see you. You need to make your visit personal.
  3. At the initial visit, advise your client of the following:
    1. You are appointed but not to worry, you will do your best for them;
    2. You will go over the discovery with the client after you receive same and review it with the client. Also, explain that under Art. 39.14, you are unable to provide the client with copies of the discovery, but you can make sure they see all discovery, whether in custody or in your office;
    3. Explain the “attorney client privilege,” advising the client that you cannot discuss the case with anyone other than the client without written permission granted by the client;
    4. Have a good interview form to get the basics, and a brief description of the facts and advise the client that you will get more facts from them after you review the discovery;
    5. Make sure to get information about and contact information for your client’s family, employers, and possible witnesses. Let your client know that you are interested in taking care of them as your client, so this information may be helpful later;
    6. Advise your client of the particular charge(s) brought and the range of punishment facing the client. Back this up with a letter to your client, advising them of the charge(s) faced and the range of punishment for each charge;
    7. Inform the client that you do not accept collect phone calls from the jail due to the likelihood of the conversation being recorded. As a matter of fact, I routinely inform the client that I never use jail phones during visitation. I have, on several occasions, had something come up during representation that was discussed “privately” on a jail phone;
    8. Make sure to take the time to build trust between you and your client using your personality to instill assurance;
    9. Explain to the client that your staff will not discuss the case with a client or members of the client’s family. Explain that the client should only discuss the case with you or when you are present;
    10. Advise your client, if in custody, that you do not have time to come out to the jail “to hold their hand” and to see how they are doing. Explain that doing so would take away from the time that you need to spend on the case. If the client needs to talk to you about something, tell them to have a family member or friend call and let you know the client needs to talk to you and you will be out as soon as you can. I also usually take a postage paid envelope or two addressed to me and leave with the client, so the client can send me a message if necessary;
    11. If the client is not in custody advise the client to keep in touch with you about changes in reference to address, phone number, employment, or new charges filed that you may not be aware of, to ask you questions, and let you know about any new evidence that the client may discover;
    12. Let the client know that you care about them and the outcome of their case, using your own method of doing so;
    13. Advise your client that they will be sent copies of every document filed in the case and follow through by sending it to them (mail from an attorney is a “status symbol” with inmates. And, other inmates will often tell your client, “I don’t get these from my court appointed attorney, and I only see my attorney when I get to court”). If the client is not in custody, send them to their mailing address or email address;
    14. I also recommend that in the first visit you express the seriousness of the offense and that you do not have a “magic wand” to make everything go away. Explain that criminal cases are based on facts. An attorney cannot change facts, but in some instances the attorney can manipulate these facts to benefit the client but you are not in a position yet to make an evaluation of what the ultimate result may be at this time. Also, explain that you may or may not be able to manipulate them (i.e., you may be limited to damage control);
    15. Explain that after you review the discovery, and investigate the facts provided by both your client and the prosecution, you should be able to advise them on what options are available. Advise the client that they will have to make a decision on what option they decide to take. As long as a client is willing to accept the risks involved in any option, you are ready, willing, and able to give your very best to try to make it happen. But facts are facts, and the client’s criminal history always plays a part in the ultimate result in the client’s case so be sure to explain any risks that there may be.
  1. When you get a copy of the indictment or complaint and information make sure to send a copy of the same to your client and tell them to make sure that these papers, along with any other papers you send the client, are important and the client should keep them;
  2. Another situation that will help you offset your time is to file a motion for appointment of an investigator. The investigator can perform many tasks for you. If you prepare your motion properly most judges will allow you some funds to do so. If you need more funding, file a motion for it. In this regard, make sure your client knows you have hired an investigator and introduce them to your client;
  3. While your client is sitting in jail waiting for things to happen, or out on bond, I suggest that you use a form letter, and advise them either the present status of the case OR inform the client that you are still working on the case but have nothing of any importance to tell them at this time. I recommend that you do this at least once per month;
  4. Review the discovery as quickly as you can. It’s often very difficult for me to do it during the day at the office, so I do it early in the morning or after 5 p.m. when not faced with the interruptions by phone, secretaries, or “drop-in clients”. Take notes, highlight important issues while reviewing, and keep them in your file;
  5. As quickly as possible, meet with the prosecutor and get a recommendation for a plea. I have learned there is a lot of psychology involved in dealing with prosecutors, so you have to know how to deal with a particular district attorney or their assistant. Often times, the first offer is just a starting place with your client’s case. Tell the prosecutor that you will present it to your client but don’t know how your client will respond as you just started on this case. Don’t put all your cards on the table at this point;
  6. After reviewing the discovery, getting the facts, witnesses for the client’s defense, and going over the discovery with the client, including the criminal history, then give the offer to your client, and back it up with a letter confirming that this is the “present offer” and advise the client that you will continue to negotiate if they so desire. Then the psychology aspect comes in. You have to know your prosecutor and how to negotiate at this point. Only lay your “cards” out as a last resort, and even then, be very careful using intimation rather than hard facts, which can give the prosecutor time to prepare and fix any problems;
  7. Do not overlook preparing for “punishment”. So many times, in my past 50 plus years of practice, there was no way to win the battle over guilt and innocence. However, I have been able to win the war with community supervision or a much lower sentence than the plea-offer. Too often, lawyers focus just on guilt or innocence and put punishment on the back burner. Prosecutors generally do not focus on punishment, and you can use that to your advantage. Even to the point, don’t advise the prosecution or the court until after the indictment or complaint and information are read before the jury or judge, that you are entering a “guilty” plea and going to the jury or the court only for punishment. There are two advantages to doing this: (1) The prosecution still has to put on evidence to meet their burden of proof. But, it often times shortens or softens the facts, and (2) you are ready with your case in chief, “punishment”. If your client wants a trial, as long as they are willing to accept the risks, which you must set out for the client, you will have to go to trial and explain you will do your very best, but don’t expect a miracle. In this situation, always back your client’s decision up with a correspondence confirming their decision and setting out the risks involved. When a final offer is made, and your client accepts or rejects same you should confirm this in correspondence to your client stating the offer, their acceptance and/or rejection and if rejected, make sure you point out the risks to the client in this correspondence;
  8. You should also check the jail records to see if there are any “detainers” from other counties, states, parole, probation, and even Federal detainers as they have to be taken into consideration in your negotiations even to the point of contacting the prosecuting authority to find out what they are going to do and possibly even convince them make them go away and dismiss if your client is going to receive time or probation elsewhere;
  9. JAIL CHAINS: I am very opposed to this court dictated “docket clearing practice”. Too often, especially in misdemeanors, your clients will have detainers, parole violations, or pending felonies that could be affected by a conviction in misdemeanor court on any one or more of the aforementioned pending matters. The Courts want to reduce their docket and are not concerned with those other matters not in their court which generally affect your client adversely. It is not “justice.” I call it “house cleaning” by the Court. Your responsibility is to the client, not to the Court. I refuse to be a part of this process. You must look at all aspects. It is unfair to your client and the system to plead a client for time or probation if it will have a detrimental effect on another case facing them. You should not worry about the Judge not liking it at this point. Your client is more important than the court’s crowded docket;
  10. I also suggest in entering a plea, that you get your plea papers before the date the plea is going to be taken by the Court. Don’t go over this paperwork in the hall on the date of the plea hearing if possible. You should take the papers to your client, and go over each detail with them. I always have my client initial each item we discuss in “red ink” and have them sign each document in “red ink”. The judges love it, because no one else does this and you have proof that it was covered at the time it was signed.

These are just a few suggestions that will assist you in your client relationship and the Court and rebut the public’s concept of “court appointed attorneys are cop out attorneys.”  You are documenting your services and communicating with your client. In many instances, the family and your client will aid in establishing trust in you, too.  I have even had clients at the plea hearing thank the Court for appointing me to represent them. I have found that when you do these things, it will result in future referrals from the client and their family and friends. The compensation paid for your services will be offset by your efforts for the client and satisfaction that you have done your very best.

A final “caveat,” if you are afraid of a jury trial, or if you are worried about making a particular judge angry, don’t take court appointments. You are an advocate for your client, and you have a duty to them. You should not worry that if you make a judge angry you will not get more appointments. Your responsibility is to your client, not to the judge.

Federal Appointments

The foregoing also applies in most Federal court appointments. Many attorneys express a fear or hesitation in taking Federal appointments. Those fears and reservations are not well founded. There is a learning curve, but it is not difficult and through the “CJA” there is unlimited assistance from the Public Defenders Offices as well as webinars, forms, and manuals available to you. In addition, the fees paid by Federal appointments far surpass those paid for State appointments. You will be paid at an hourly rate for your time and reimbursed for expenses at a reasonable rate. Talk with other attorneys who take Federal appointments including the Public Defenders. They are especially helpful. You have to get “acclimated” to Federal practice. It is not difficult but it can actually be profitable. Your voucher is kept online, and when you complete your representation, you literally punch a few buttons and submit your voucher to the Court. It is rare that a Federal Judge cuts your fees, and the Federal judge will almost never will cut your reasonable expenses, even postage. In non-capital cases in the Northern and Western Districts where I practice, the budget amounts have a limit which exceeds for services $10,000.00 on a case not including expenses. In revocations of “supervised release” the budget limit is approximately $2,500.00. If you are not taking Federal appointments, they are definitely worth considering.

For those of you who do accept Federal appointments, here are some additional tips which I believe will assist you:

  1. Unlike in state court, “jail chains” do not apply. Often, in Federal appointments your client is not in the same city or town as your office. You will have to travel to visit your client. The initial visit should be “in person”. You have to instill trust with you by the client. I have heard numerous complaints by clients that the only time they are able to visit in person with their attorney is at the courthouse. The rest of the time is by phone or “Zoom”. You need to be “face to face” for both you and your client, and be able to make eye contact with them;
  2. Obviously, you can’t go to the jury for punishment in a Federal case. However, you should start working on punishment from the very beginning by getting information from your client on family, friends, employers, religion, and the community in which your client lives;
  3. In that regard, it has been my experience that you have to deal with U.S. Probation Officers who compose the Presentence Report (PSR). I got a form from one Pretrial Release Officer, which is very helpful in representing the client. One would think that the officers would be fair and even in the report. This is generally not true. Most of the time the “bad” is emphasized and the “good” is merely mentioned, or the report says information requested “No reply”. Remember, they get their information from the Government, and all relevant conduct is used in computing the “Base Offense Level” to increase the “guidelines”. The officers will go to great lengths to emphasize the bad conduct and the “ghost dope” when they can. I have also found on more than one occasion when the PSR reveals “No reply”, that the person, employer, or character reference were never contacted. I always recommend filing objections to the PSR when any of this occurs;
  4. Another matter along these same lines has to do with what I call “character letters” and also psychological or psychiatric evaluations. The officers will tell you that these will not be attached to the PSR. When I respond to the PSR I object and attach them as exhibits that the Court should take into consideration. Additionally, I always file a Sentencing Memorandum and again attach them as Exhibits knowing that at least I have provided them for the Court and his “briefing clerk” to consider;
  5. Always prepare your client for the PSR interview. I do this by requesting the PSR Interview Form from the Probation Officer well before the interview. I then take it to my client and we fill it out as best we can. I then forward the form to the Probation Officer before the interview. There are three reasons to do this: (1) it shortens the interview because the Probation Officer just has to fill in the blanks (2) you learn many things when filling it out which may be useful, and (3) you are giving a preview to your client of the interview and instructing the client on when and how to respond to the questions posed by the Probation Officer;
  6. THE PSR INTERVIEW: Always advise the Probation Officer that you want and will be physically present at the time of the interview. Don’t just be in on a “3-way call”. You need to be present and follow along with the form you have helped your client fill out. This too, will make your client trust you even more, and you are controlling the interview, not the Probation Officer;
  7. I have found that the Judges in Federal Court (U.S. Magistrates and U.S. District Court Judges) for the most part appreciate the time and effort that you put into a case. In my personal experience, I have even been complimented by some judges for my efforts in the case by the Court.
  8. In the Northern and Western Districts where I practice, we are allowed $900.00 for an expert or an investigator without first gaining permission of the Court. If additional funds are needed, you can apply “ex parte” for additional funds for an investigator or expert by filling out the proper CJA form, articulating the need, the cost, and the name of the expert or investigator. I have never been turned down by the Court. This should be utilized by you. It can reduce the amount of time or travel that you have to spend “behind the windshield” or waiting at the jail. And the judges appreciate the “cost saving”. Take your investigator with you to visit your client, introduce them, and explain that they now have two people working on the case and the client should treat them as if it were you in their dealings;
  9. Document all your meetings, discussions, and communications with the prosecutors, the courtroom deputies, the holding facilities, and the Court and place that document in your file. This is easily done through emails, correspondence, and documenting your voucher;
  10. Discovery in Federal cases is often lengthy and detailed. I have had several cases with more than 1TB of printed data, videos, photographs, recordings, etc. I presently have a case that involves 5 six-inch binders plus flash drives of videos, photos, and recordings. You have a duty to go through it all. I suggest that you do so outside of office hours, and take notes. It can be tedious and time consuming, but in order to properly represent your client you need to have all the knowledge available concerning your client. Be sure to charge for your time on the voucher;
  11. Keep a good working relationship and communication with the Courtroom Deputy. These individuals can save you time and expense. Always thank them for their assistance whether in person or by email. They are quite busy, but I have found that they understand matters such as conflicts in scheduling, appointments, and general assistance. I have even sent letters to their supervisors telling how much I appreciate their hard work and assistance. You would be amazed at the cooperation and consideration you can achieve by doing so;

I could go on and on with several other matters but I consider most of the foregoing are interchangeable between Federal and State appointments. The bottom line here is that you have an obligation to represent your client to the best of your ability. If you are not comfortable trying cases in federal court, then get some experience by sitting second chair. You need to see the prosecution you will be facing in the courtroom, the judge in the courtroom, and the particular way that voir dire is conducted by that particular Court. If you were a coach of a football or baseball team you would want to know how the opposing team members perform. The same concept should be followed if you are proceeding to trial whether before a jury or the bench and whether in state or federal court. Talk to other attorneys who practice before that Court, ask questions and insight of them to help you prepare for the trial. Scouting in such a manner has proven invaluable to assist me in preparing for trial.

Conclusion

I firmly believe that if you are going to take court appointments you should be ready, willing, and able to go to trial if that’s what your client wants. Advise your client of the risks involved, and if the client persists, it is their liberty that is at risk. In my experience, I have been involved in representing clients, I have tried cases that were absolute losers, and had so advised my client prior to trial. I have documented this for post-conviction attacks. Every once in a while, “you catch lightening in a jar” and win one or even get a lesser sentence than was involved in the plea offer. These kind of cases allow you to think outside the box and try new approaches or arguments which makes the trial exciting to you and your client. I actually got a two-word verdict in a Possession of Methamphetamine case involving a client who had more than 50 prior arrests. My motto is:  “I try to treat a client the way I would want to be treated were I the client and not the attorney.”

Juvenile Certifications: Post-Moon and Thomas, where are we?

One of the most important undertakings for a criminal defense lawyer is to fight to keep a juvenile client in the juvenile system. See Miller v. Alabama, 567 U.S. 460, 471 (2012). This article addresses the question of where juvenile certification stands post-Moon and post-Thomas.

I. Background

On June 16, 1944, the State of South Carolina executed fourteen-year-old George Stinney, Jr., in the electric chair. Tragically, he was too short for the electrodes to reach his head, so he had to sit on books. Stinney was tried as an adult because, prior to the 1950s and 1960s, there were no laws on how to handle a murder trial for a juvenile in South Carolina.

Although Texas had reform schools in the nineteenth century, a juvenile justice system started to develop around 1949 with the funding of the precursor to the Texas Department of Juvenile Justice. Juvenile law became widespread across the country in the 1960s. In 1973, the Legislature passed the Family Code with what we now call the Juvenile Justice Code. Further, for nearly all of the history of juvenile justice in Texas, the Court of Criminal Appeals has exercised final jurisdiction.

II. Basics

Generally, jurisdiction exists to prosecute a juvenile under the Juvenile Justice Code if the child is alleged to have “engaged in delinquent conduct.” Normally, the child is between the ages of nine and seventeen at the time of the offense.

III. Certifications: The Beginning, Kent v. United States

The aim of this article is not to provide the history of Juvenile Law in Texas but is, instead, a look at the current position of juvenile certifications beginning with the 1966 Supreme Court decision Kent v. United States, 383 U.S. 541 (1966). As set out by the Supreme Court, Kent, who was already on probation for burglary, was arrested and charged with breaking into a home in Washington, D.C., stealing a wallet, and raping the homeowner. Id. at 543. The police had used fingerprints to identify the then sixteen-year-old Kent. Id. The provision for the juvenile court to waive jurisdiction read:

If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases.

Id. at 547-548 .

Kent’s lawyer filed a motion for a hearing on the question of waiver of Juvenile Court jurisdiction with an affidavit of a psychiatrist certifying that Kent ‘is a victim of severe psychopathology’ and recommending hospitalization for psychiatric observation. Kent’s lawyer also requested access to the Social Service file relating to Kent during his probation period, and which would be available to the Juvenile Court judge in considering the question whether it should retain or waive jurisdiction. The Juvenile Court did not rule on these motions, did not conduct a hearing, and did not confer with Kent, his parents, or his counsel. Id. at 545.

Instead, the Juvenile Court entered an order reciting that a full investigation had been completed, waived jurisdiction, and allowed Kent to be tried as an adult. Id. at 550. There were no findings or reasons for the wavier listed in the order. After his trial, the court sentenced Kent to serve five to 15 years on each count as to which he was found guilty, or a total of 30 to 90 years in prison (the jury convicted Kent on six counts of burglary and acquitted him of rape). Id.

The Supreme Court determined there was not a sufficient investigation prior to the juvenile court waiver of jurisdiction. Kent did not receive a hearing, access to counsel, or access to his record prior to the waiver. The Court remanded the case to the district court to determine whether the waiver was proper. Because Kent was 21 years old at the time of this decision, the juvenile court no longer had jurisdiction if the waiver was proper.

The Supreme Court reasoned: The statute gives the Juvenile Court a substantial degree of discretion as to the factual considerations to be evaluated, the weight to be given them and the conclusion to be reached. It does not confer upon the Juvenile Court a license for arbitrary procedure. The statute does not permit the Juvenile Court to determine in isolation and without the participation or any representation of the child the ‘critically important’ question whether a child will be deprived of the special protections and provisions of the Juvenile Court Act. It does not authorize the Juvenile Court, in total disregard of a motion for hearing filed by counsel, and without any hearing or statement or reasons, to decide—as in this case—that the child will be taken from the Receiving Home for Children and transferred to jail along with adults, and that he will be exposed to the possibility of a death sentence instead of treatment for a maximum, in Kent’s case, of five years, until he is 21.

Id. at 553-554.

The Supreme Court further explained: Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts. It may not ‘assume’ that there are adequate reasons, nor may it merely assume that ‘full investigation’ has been made. Accordingly, we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that the statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.

Id. at 561.

To this day, Kent remains the cornerstone of juvenile certifications. However, its meaning and requirements are the subjects of meaningful dispute in Texas courts.

IV. Juvenile Certification in Texas Until 2021

A. Juvenile Justice Code and Moon The post-Kent process of developing procedures and standards to certify a juvenile was troublesome and uneven, but came to relative equilibrium in December 2014 with Moon v. State, 451 S.W.3d 28 (Tex. Crim. App. 2014) (overruled by Ex parte Thomas, 623 S.W.3d 370 (Tex. Crim. App. 2021), reh’g denied (June 23, 2021)). Moon addressed to Sections 54.02(f) and 54.02(h) of the Family Code, which provide the general guidelines a certifying court should consider in evaluating whether to certify a juvenile.

        Section  54.02(f) requires the court to consider the following factors when making a determination about certification:

(1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against the person;

(2) sophistication and maturity of the child;

(3) the record and previous history of the child; and

(4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedure, services, and facilities currently available to the juvenile court. See Tex. Fam. Code § 54.02(f).

If the juvenile court waives jurisdiction, section 54.02(h) requires a juvenile court to “state specifically in the order its reasons for waiver and certify its action, including the written order and findings of the court . . .” See Tex. Fam. Code § 54.02(h).

In Moon, the Court of Criminal Appeals held that in evaluating a transfer order, an appellate court reviews specific findings of fact regarding statutory transfer factors under traditional sufficiency of the evidence review but then reviews the ultimate waiver decision under an abuse of discretion standard. Importantly, they further ruled that when conducting a review of the sufficiency of the evidence to establish the facts relevant to the statutory transfer factors and any other relevant historical facts, the appellate court must limit its review to the facts that the juvenile court expressly relied upon. Moon, 451 S.W.3d at 49-50. The Moon Court reasoned that the Legislature meant for juvenile courts should “show their work” when certifying a juvenile as an adult.

Then, in 2015, the Legislature divested the Court of Criminal Appeals of jurisdiction over juvenile cases and entrusted final jurisdiction with the Texas Supreme Court. See Act of May 12, 2015, 84th Leg., R.S., ch. 74 § 3, 2015 Tex. Gen. Laws 1065, 1065–66. Most recently in 2021, the Court of Criminal Appeals expressly overruled Moon calling it “unworkable” and stating “[n]either the statute’s text nor the Supreme Court’s holding in Kent” required a court to “show its work.” Ex parte Thomas, 623 S.W.3d at 382.

V. Where are we now?

Ex parte Thomas was a writ case brought for a certification entered before Moon. The Applicant argued “the order waiving juvenile jurisdiction did not contain factually-supported, case-specific findings, it was invalid, and thus the district court never acquired jurisdiction.” Ex parte Thomas, 623 S.W.3d at 372–73. But because Thomas was a writ case and Thomas was simply denied relief, Thomas did not need to “fill the space” left when the court vacated Moon.

In the absence of Moon, defendants are left with Kent and the Juvenile Justice Code. As mentioned above, Section 54.02(f) sets out the broad parameters of what the certifying court must consider and Section 54.02(h) provides the certifying court must “state specifically in the [certifying] order its reasons for waiver and certify its action, including the written order and findings of the court . . .” See Tex. Fam. Code § 54.02.

The question that remains, however, is what must a trial court do to comply with Section 54.02(h)? Generally, the State reads Section 54.02(h) to mean the certifying court must only list the factors weighing in favor of certification. This argument comes from the language the court must state “specifically in the order its reasons for waiver and certify its action.” (emphasis added). For the State, the word “for” generally means factors weighing in favor of certification. But for the defense, Section 54.02(h) and the word “for” mean the certifying court must explain its reasons for certifying the juvenile, including evaluating factors that weigh against certification. This specific question is before the Texas Supreme Court right now in In re J.R. (docket no, 21-0446) and In re A.K. (docket no. 21-0511). As of the date of this writing, the Supreme Court ordered the State to file a response in In re J.R., which was filed by the State and replied to by the Petitioner. Concerning In re A.K., the Petition for review was denied and a Motion for Rehearing has been filed.

VI. In re J.R.

In re J.R. is the author’s case out of the Fifth Court of Appeals in Dallas. In re J.R., 05-20-00920-CV, 2021 WL 777090, at *1 (Tex. App.—Dallas Mar. 1, 2021). The appellant lost. But in losing, the appellant secured a three-judge dissent from the denial of the motion for en banc reconsideration. In re J.R., 05-20-00920-CV, 2021 WL 1976460, at *1 (Tex. App.—Dallas May 18, 2021, no pet. h.).

The court issued J.R. before the Court of Criminal Appeals overturned Moon and the appellant filed for en banc reconsideration after Thomas. In light of Thomas, the dissenting justices on the Dallas Court of Appeals asked to hear In re J.R. en banc.

Justice Schenck, on behalf of the three-dissenting justices, dissented to ask the Texas Supreme Court how, with the end of Moon, intermediate-appellate courts should “acquit themselves of the serious task laid out before them in an appeal [that challenges the sufficiency of the evidence for a certification].” Id. at *2.

Initially, it is essential to recognize in a sufficiency review of a decision to certify a juvenile, an appellant court is limited to a review of the facts/evidence/conclusions the juvenile court expressly relied on in its transfer order. In re S.G.R., 496 S.W.3d at 239.

For Justice Schenck, the problem is how an intermediate-appellate court should conduct a sufficiency review under City of Keller (the defining civil case on sufficiency review). Id. at *5. Under City of Keller, the reviewing court must look to all of the evidence to decide whether it supports the verdict. City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005). Justice Schenck contrasted the reasoning from Thomas with the review of a low-damages-car-accident case. In re J.R., 2021 WL 1976460, at *7. He asked why a party in a low-damages-car-accident case would be entitled to a review of all of the evidence, but a defendant in a juvenile certification would only be entitled to a review of the factors weighing in favor of certification? Id. He concluded “the better practice would seem to be to provide a broad review on direct appeal allowing the reviewing court to insist on a record that affords a meaningful appellate review and requiring the juvenile court to explain how it got to the conclusion it did, not just cite the facts in support of its ultimate determination.” Id. at *9.

Justice Schenck’s question asking what belongs in a statement of reasons under Section 54.02(h), is a question we expect the Texas Supreme Court to answer soon.

VII. So What Now?

An attorney facing a certification hearing should proceed as he or she always would, by presenting evidence that weighs against certification. If, however, the certifying court rules in favor of the state, certifies the juvenile, and does not list the factors that weigh against certification, then the attorney should object in writing and secure an order. The objection would be to specifically list the factors supporting certification on the basis this precludes an adequate review on appeal.

VIII. Conclusion

The law on juvenile certifications is uncertain. This uncertainty, however, can create opportunities for you and for your clients. The Texas Supreme Court is not likely to resolve this issue for at least a calendar year. During that time you should have leverage to use an appeal of a certification without reasons for and against certification as a tool to secure a good plea agreement for an appropriate client.

The ‘New’ DWI: Deferred or Trial?

Criminal convictions can be damaging. The type of offense [DWI, possession of a controlled substance, theft, aggravated sexual assault of a child, etc.] and a person’s status [teacher, truck driver, self-employed, etc.] will dictate just how hard a conviction will ‘hurt’. It could mean the difference between no substantial change in personal status vs. divorce, job loss, skid row, and contemplation of suicide. 

Accordingly, the Texas Legislature enacted in the Texas Penal Code ranges of punishment for each conviction classification. Further, depending on the facts and issues of the particular case, skilled defense lawyers may be able to negotiate offense/sentence reductions, modifications, and lesser included offenses for a case rather than a possible harsh original offense and attendant sentence.

One such possibility is deferred community supervision or probation. With deferred, no actual judgement or conviction is recorded thereby making either expungement or non-disclosure available. Such benefit is now available for DWI, but how much of a benefit is it, really? Finally, after a long hiatus, since 1984, deferred adjudication probation is once again available to those accused of DWI. HB 3582 provides the ‘opportunity’ to plead to deferred adjudication, thereby avoiding a ‘conviction’ upon successful completion of the probation. Since the DWI law in Texas was partially amended on September 1, 2019, I have noticed quite a few DWI cases pleading to deferred adjudication. However, there are conditions attached. An accused may not receive deferred if he or she has:

  • Any prior DWI or other delineated conviction (school zone enhancement, sexual offenses, etc.);
  • State Jail Felony DWI (child passenger younger than fifteen years of age);
  • Flying While Intoxicated;
  • Assembling or Operating an Amusement Ride

While Intoxicated;

  • Intoxication Assault;
  • Intoxication Manslaughter;
  • Holds a commercial driver’s license or permit;
  • An alcohol concentration of 0.15 or more; or
  • Other statutorily delineated restrictions to obtaining deferred.
[I would refer you to Frank Sellers and Mark Thiessen’s article on the subject in the November 2019 Voice, entitled “2019’s Need-to-Know Changes to DWI Law” for a further explanation on the changes.]

While the availability of deferred for certain DWI’s may seem to ‘wipe’ the accused’s record of a conviction, HB 3582 also amended Texas Penal Code Section 49.09(g) and added language: “[f]or purposes of this section, a person is considered to have been convicted of an offense under Section 49.04 or 49.06 if the person was placed on deferred adjudication community supervision for the offense under Article 42A.102, Code of Criminal Procedure.” So, even a deferred adjudicated first DWI can be used to enhance a subsequent arrest for DWI to a greater category! The deferred status only ‘hides’ the ‘conviction’ from most civil eyes, such as employers, etc., but not all agencies, such as certain professionals and law enforcement. So, if there is any benefit in deferred, it is minimal, at best.

After explaining these issues in detail to clients, I have found not all clients are very keen on deferred. They still must complete a term of probation with all the attendant ‘fallout’ of monthly visits to a probation officer, fines, court costs, classes, victim impact panels, etc. Additionally, a plea to deferred also sets them up for a possible future DWI being enhanced to a greater degree. So, what could be an alternative? 

As with any case, if the facts (videos, police reports, TCOLE records) are favorable, a trial may be the choice remedy. ‘Not Guilty’ is always a favorable outcome since the accused’s record will be clean (after the arrest is expunged) resulting in no stigma from a conviction and no consequences of a sentence.

However, with a ‘Guilty’ verdict, the accused would likely receive a sentence very close to that which would have been received on a plea, depending on the jurisdiction, prosecutor, and/or judge. If none of the above restrictions to a deferred is a factor, in certain situations, the guilty verdict can be non-disclosed. (TEX. GOV’T CODE §§411.0726, 411.0731, 411.0736)

A guilty verdict followed by a non-disclosure would have exactly the same result as a deferred plea, but the attempt at trial has given the accused a chance of a Not Guilty disposition.

To be eligible for non-disclosure, the accused must have been convicted for an offense under Penal Code §49.04 (Driving While Intoxicated) or §49.06 (Boating While Intoxicated), except for the BAC >0.15 enhancement of §49.04(d) or received deferred adjudication for any offense under Penal Code §§49.04 or 49.06. The accused must successfully complete his sentence, including payment of all fines, costs, and any restitution imposed. He or she must not have received any prior convictions or deferred adjudication for any other offense other than a fine-only traffic offense. The accused must also show that the issuance of the order is in the best interest of justice. Additionally, there must not have been an affirmative finding in the underlying case that it is not in the best interest of justice that the accused receive an order of non-disclosure (CCP 42A.105(f)).

An important caveat to abandoning deferred and proceeding to trial is a serious consideration to a breath or blood level which could be negotiated with the prosecutor, and the DPS ‘superfine’ which is an entirely different subject of study.  Apart from negotiation during a plea process, a guilty conviction after trial could lock in the superfine. A possible remedy could be afforded by court-ordered sentencing rather than jury-ordered. Such tactics must be considered on a case-by-case basis.

In summary, deferred adjudication for a qualified DWI or BWI is a better choice than that before September 1, 2019. But, if the accused’s BAC is not greater than 0.15 on a first DWI or BWI, with no prior criminal history (and none of the other restrictions recited above), a trial may be the much better choice since the eventual outcome is either the same conditions as a plea to deferred or even better, a Not Guilty.

Food for Thought: Semantics and the Presumption of Innocence

Proof lies on him who asserts, not on him who denies.
– Code of Justinian (22.3.2)

It  has long been held that a person accused of a crime is presumed innocent. In 1895, the United States Supreme Court in Coffin v. United States stated that, “the principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law…”1

However, the presumption of innocence is much older than 1895. The idea that the prosecution must prove an accused guilty and that the accused has no burden to prove his innocence began in the Roman times. One of the first instances that it was written was in the Code of Justinian, which stated:

“Let all accusers understand that they are not to prefer charges unless they can be proven by proper witnesses or by conclusive documents, or by circumstantial evidence which amounts to indubitable proof and is clearer than day” – Book IV, Title 19 (emphasis added).

It was not until 1797 that the phrase “innocent until proven guilty” was coined.

So how and why did it go from “unless” in the Digest of Justinian to “until?” And does it matter? We do not yet have the answer to our first question, and we spent some time looking, but as to the second question: yes, we believe it does matter.

The word “until” means “up to the time that” or “up to such time as,” while “unless” means “except on the condition that” or “under any other circumstance then.” “Until” presumes that a condition will be met, while “unless” does not make any presumption at all. Unless is a precondition.

While it may seem inconsequential to delineate the differences between the words “until” and “unless,” especially because the phrase “guilty until proven innocent” is so engrained in our society, it is interesting to note and to consider that Texas specifically uses the word “unless” in the definition of presumption of innocence:

“All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.”2

Did the Texas Legislature mean to use the word “unless?” Or was it a typo or some sort of oversight? Curious, we looked at 15 other states. Out of those 15, only one used the word “unless” like Texas does.3 It seems to us that using the word “unless” in the Texas definition of presumption of innocence was a deliberate choice.

Whatever the reason, the Texas Code of Criminal Procedure defines presumption of innocence using the word “unless,” and perhaps we as criminal defense attorneys ought to as well. “Until” creates an intrinsic bias against our clients. When we use the word “until,” we tell the jury it is going to happen: the state will prove its case against our client and overcome the presumption of innocence. And why would we give the state even the slightest advantage, when they already have so much in their favor?

Maybe it is time to give the old 1797 phrase a makeover and bring it back to its roots by saying “innocent unless proven guilty” to our clients, our courts, and perhaps most importantly, our juries.

Diligent Participation Credit

Neither parole nor “good time” credit is available to defendants serving State Jail prison sentences. During the 82nd Legislative Session, a bill addressing “diligent participation” was introduced and passed into law. The bill presents the possibility for inmates serving State Jail sentences to receive additional credit towards their sentence. The sentence had to be served day for day prior to September, 2011. There are several restrictions when determining the eligibility for diligent participation. Any and all time credit awarded by the Trial Court is considered “a privilege and not a right” meaning it is purely discretionary. Tex.CodeCrim.Proc.Art. 42A.559(h). With respect to how much credit one might receive, it may not exceed “one-fifth of the amount of time the defendant is originally required to serve in the facility” or 20 percent of the sentence. Id.

The judgment must reflect whether the court finds defendant is “presumptively entitled to diligent participation credit”. Tex.CodeCrim.Proc.Art. 42.0199. The determination of whether an individual is presumptively entitled is required on the face of the Judgment. Id. If the court makes an affirmative finding and the Defendant has not been subject to disciplinarily action while in the State Jail facility then the award of credit for eligible diligent participation credit is mandatory. Tex.CodeCrim.Proc. Art. 42A.559(f). 

If defendant is not presumptively entitled to diligent participation credit then a report containing records of specific day counts of participation in “educational, vocational, treatment, or work program(s)” is sent to the court. Tex.CodeCrim.Proc.Art. § 42A.559(g). A presumptively eligible defendant subject to disciplinary action while in the state jail facility loses presumptive status. Their records are forwarded in a similar manner to individuals not found to be presumptively entitled. According to the Texas Department of Criminal Justice web page on the matter, if the Trial Court does not award credit, “the offender will serve their full sentence.” Time where an inmate has either completed or is making successful progress towards completing an educational, vocational or treatment program, or is actively involved in a work program qualifies as “diligent participation”. Tex.CodeCrim.Pro.Art. 42A.559(a). The purpose of this statute is to incentivize participation in available programs for State Jail inmates.

A Diary of Declaration Readings

Declaration reading in Gail, Borden County, Texas, USA. Population 231. There may not be much to this one-jail-cell-town out on the Caprock of West Texas – except a great sense of American pride. The entire courthouse staff (yes, all six) showed up to support the reading today!

-Laurie Key, Lubbock

My Dad, Philip Fickman, despised tyrants and bullies. Perhaps that is because most of our family was murdered in the pogroms.

My Dad loved this country and the freedoms we are all guaranteed. He always made July 4th a fun celebration for my brothers and me. Annually, my Dad and the other young fathers on the block put on a large, joyous, and probably illegal, fireworks display in the middle of our street.

When I became a dad, I always hosted a big barbeque on July 4th. Everybody was eager to eat, but before we ate I had my young sons, Sam and Daniel, read aloud the first and last paragraphs of the Declaration of Independence. I wanted them to understand the meaning of this holiday.

By 2010, many members of the Harris County judiciary were acting as if they were King George III. They were stepping all over the rights of our clients. Like our Founders, the Harris County Criminal Lawyers Association had finally suffered enough of this tyranny.

So, in 2010, before we headed out to our family barbeques and fireworks,  members of HCCLA staged a symbolic protest against our local tyrannical judges by reading the Declaration of Independence on the courthouse steps. We sought no permission. That would be akin to our Founding Fathers asking the king for permission to declare independence.

I told my sons about our readings and about how it all started in our backyard with them. They liked it and they were supportive. For several years, Sam, who has a film degree, has edited TCDLA Declaration reading videos.

This year, Sam and Daniel were in town. I invited them to join us in the reading.

Watching my sons read the Declaration of Independence was something I will always treasure. In strong, resolute voices, they joined me and my colleagues in open defiance of tyranny. These readings are not about my family or how we celebrated the 4th of July. These readings are about all our families and our communal rejection of tyranny inside and outside of the courthouse.

-Robb Fickman, Houston

The Henderson County Bar Association gathered on the courthouse steps Friday to read the Declaration of Independence. Congress signed the unanimous declaration of the united thirteen colonies of America on July 4, 1776. It is the foundation for this country.

As the words rang out over the square, flags waving, the voices of speakers bounced back in echoes from the other buildings confirming the eloquent and courageous words of freedom and independence:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness . . .”

A crowd gathered on the lawn to hear the words that still ring true today. Shana Stein Faulhaber, local event organizer, said the words move her to this day every time she reads or hears it.

“I still get goosebumps,” she said.

Although she is new to the area, she has quickly jumped in and embraced community involvement.

Zane Faulhaber closed the ceremony by playing the “Star Spangled Banner” on electric guitar.

The practice was originally started by a group of criminal defense attorneys and has quickly grown to a state-wide event.

-The Athens Review

Following our first reading in Hopkins County, we hit the road to read in Delta (Cooper) and Rains (Emory) counties. We then joined up with Mac Cobb to read the Declaration of Independence in Morris (Daingerfield), Marion (Jefferson), and Cass (Linden) counties. Six counties, lots of miles, a few mispronounced words, but high spirits.

-Brent McQueen, Sulphur Springs

Shelby County criminal defense lawyers Deck Jones, Jeff Adams, April Prince, and Stephen Shires gathered at the front of the Historic Shelby County Courthouse July 2, 2021, to give a ceremonial reading of the Declaration of Independence and the Bill of Rights.

The Texas Criminal Defense Lawyers Association has encouraged this annual event since 2016 across the state of Texas.

An audience gathered in front of the courthouse to hear the lawyers recite the Declaration of Independence and the Bill of Rights. Although a heavy rain moved in on the event, the lawyers pushed through until they completed their task.

-ShelbyCountyToday.com

A handful of citizens came out Friday at noon to the Hale County Courthouse as county lawyers conducted their annual reading of the Declaration of Independence as part of the Fourth of July holiday celebration. This was the eighth annual reading of the Declaration, a tradition started in Plainview in 2013. The reading is an event put on annually by the Texas Criminal Defense Lawyers Association. Mayor Charles Starnes was among the nine readers during Friday afternoon’s reading.

-Plainview Herald

A long-standing tradition for South Plains lawyers kicked off Independence Day celebrations with a reading of the Declaration of Independence reminding us of all the Fourth of July isn’t just for cookouts and fireworks. It’s a time to celebrate the official beginning of our country.

EverythingLubbock.com

It was a great day for the readings in Archer, Baylor, Knox, Foard, and Wilbarger Counties. Thanks to Robb Fickman and Chuck Lanehart for helping with this tradition and my dear friends Scott Stillson and Todd Greenwood of Wichita Falls for the fun road trip.

-Dustin Nimz, Wichita Falls

Reading of the Declaration of Independence in Bowie County (Texarkana, Texas) and Miller County Texarkana, Arkansas) simultaneously in front of the Federal Courthouse with Mac Cobb and Jeff Harrelson.

-Brent McQueen, Sulphur Springs

Freedom and the liberties that come with it were celebrated ahead of the 4th of July holiday on Friday when attorneys recited the Declaration of Independence and the Bill of Rights in front of the Brazos County courthouse.

The annual tradition is celebrated across more than 150 Texas counties. Locally, the event is organized by the Brazos County Defense Lawyers Association.

Local criminal defense attorney Shane Phelps helped organize the event. He says the time for complacency about freedoms in the United States and Texas is over. Phelps says citizens need to appreciate why we celebrate this holiday and understand and exercise our rights.

“We stop every year to celebrate the 4th of July, but sometimes we don’t really appreciate what it’s all about. This is an effort to try and remind people of the sacrifice that was made by our founders so that we can enjoy the freedoms we do,” said Phelps. “So before we get started on our parties and our barbecues and boating, it’s a good thing to hear the words of the founders in the Declaration and the Bill of Rights, so that we understand and appreciate as we enter this festive holiday weekend just how important those rights are to Americans in Texas.”

Phelps says it’s up to everyone, including attorneys, to help protect the rights of American citizens.

“Criminal defense attorneys are champions of liberty. We step into the courts of Texas every single day, and we defend these rights. We remind jurors and judges of the Fourth Amendment, the Fifth Amendment, the Sixth Amendment, all of those rights that guarantee freedom to citizens,” said Phelps. “An important message and important part of that is to understand that if you don’t know what your rights are and if you don’t exercise them, then when you really do need them, they’re just not going to be there.”

Cameron Reynolds, president of the Brazos County Defense Lawyers Association, says knowing your rights and freedoms is crucial, and more people should take the time to read the constitution and Bill of Rights. Reynolds says those documents are more than just words on paper.

“I’ve been doing this defense work for the better part of 25 years. I’ve represented judges, police officers, doctors, lawyers, and I can tell you it’s a lot different when something’s happening to them,” said Reynolds. “It doesn’t mean that much until something happens to you or your family. Then you realize, man, I really need this. I need these rights to mean something.”

-KBTX-TV, Bryan

To commemorate the Fourth of July holiday, the Harrison County Criminal Defense Lawyers Association will host the group’s ninth annual public reading of the Declaration of Independence, this Friday, July 2.

The event will begin at 11:30 a.m., in front of the working 1963-model Harrison County Courthouse, located at 200 West Houston St, and not at the historic courthouse.

“The public is invited,” organizers stated.

Those who want to participate remotely can watch the live broadcasting on KMHT radio’s Facebook page.

“This is the ninth annual reading in front of the Harrison County courthouse,” organizers said. “Your local defense bar is committed to protecting and ensuring by rule of law the individual rights guaranteed by the Texas and Federal Constitutions in criminal cases.”

The local defense lawyers will be joining other defense lawyers across Texas and the United States as they recite the Declaration of Independence.

In honor of the nation’s freedom, lawyers across the state pause for a few moments of the designated day to read the Declaration in front of Texas county courthouses, and anywhere globally that a Texas attorney is.

“Since 2010, Texas criminal defense lawyers have gathered on courthouse steps across the state early each July to publicly read the Declaration of Independence,” the Texas Criminal Defense Lawyers Association’s website, www.tcdla.com, states. “The tradition—unlike any other in the nation — is supported by members of the Texas Criminal Defense Lawyers Association.”

The event has been carried on locally, in Marshall, since 2012.

-The Marshall News-Messenger

Miles: 250

Courthouses: 5

Speeding tickets: 1

Happy Birthday, America!

#tcdlastrong

-Michelle Ochoa, Beeville

After I participated in the wonderful, colorful,  inspirational 11th annual Lubbock Criminal defense Lawyers Declaration reading the morning of July 2, I changed into my snazzy US flag shirt in honor of my great friend, the late David Hazlewood, who never missed an LCDLA Declaration reading and always wore is lag shirt. Then  it the road for the Texas  Hill  country, companionless, in my beat-up Chevy Tahoe. Along the way, I read the Declaration  of Independence in Post, Sweetwater, Coleman, Brady, and Llano.

Unfortunately, I forgot my own advice and did not forewarn the citizenry to witness my oratory until I was five miles outside of Post. I phoned my buddy Ted Weems, the Garza County Attorney, but he was out. His assistant promised to come downstairs with the County Judge, his secretary, and maybe others to hear my presentation.

I guess the assistant was like me—forgetful—and no one from inside the courthouse appeared. A random young lady happened to wander up the courthouse steps, and she enthusiastically took my photo,  but she did not stick around to hear my rendition of the Declaration.

In Sweetwater, another young lady—wearing a US flag scarf—firmly refused to photograph me and hurried away as if I were a leper. So, I took my first snapshot self-portrait—known as a “selfie”—with my trusty cell phone camera.

The friendly Justice of the Peace court coordinator was my only audience in Coleman, and she graciously agreed to take my picture.

The courthouse in Brady was closed. With no assemblage, I delivered the most eloquent recitation of the Declaration heard anywhere ever, and there is no evidence to the contrary. Having mastered the art of the selfie, I snapped away, shuddering at my semblance.

When I arrived at the beautiful Llano County Courthouse, I was confronted with driving rain, so I ducked into the quaint gazebo on the courthouse square and read the Great Document. I did the selfie thing again: I hope it was my last.

What a hoot! Six counties, 304 miles, and three selfies. God Bless America!

-Chuck Lanehart, Lubbock

Over in Marathon, there was a Dog and Pony Show parade Saturday morning with  Brewster County Sheriff Ronnie Dodson leading participants through downtown. There was also a chili cook-off, dancing under the stars, and fireworks.

Marfa was mostly quiet over the weekend but famed criminal defense lawyer Dick DeGuerin continued his tradition of reading the Declaration of Independence aloud to a gathered crowd in front of the Presidio County Courthouse.

-Big Bend Sentinel

Judy and I  have read the Declaration in ten countries, including Russia twice on our travels as United Methodist missionaries. Here we are in Prague, only a few feet from a Jewish internment camp from Hitler’s death squads. It gave us a great sense of pride to be free and standing over so many who were gassed and horribly mistreated. So many people from foreign countries came up to us and simply said, “Yah! Yah!” Meaning yes to the end of tyranny and injustice!

-Ken Mingledorff, Houston

Travis County attorneys and TCDLA staff gathered outside of the Blackwell-Thurman Criminal Courthouse in Austin for our annual Declaration of independence reading. While this year’s reading didn’t feature our usual donut and coffee reception, we were pleased to keep the tradition alive, even during a pandemic. In the rare in-person gathering, the Austin Criminal Defense Lawyers Association members were pleased to see their colleagues and participate in this meaningful reminder of our shared passion for defending our community.

 – Bradley Hargis, Austin

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