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Recover 101, an Introduction to “Working” a 12-Step Program

TCDLA’s Attorney Wellness Committee is holding 12-Step meetings via Zoom at 5:15 on various Wednesdays. We hope to make the meetings more regular, probably every other week. We ask that those who want to participate reserve a seat at the table by preregistering so they can receive a Zoom link for the meeting. The meeting isn’t restricted to a specific type of recovery. In fact, it is an open meeting so attendees don’t have to be practicing a program of recovery. Willingness to grow is what makes these meetings a success for groups and for individuals.

Participants who want to maintain their anonymity can do so by not activating the video component of the Zoom program. In order to maintain complete anonymity, you will want to modify the screen name that is associated with your account.

What is a 12-Step Meeting?

A 12-Step meeting is a meeting of people, most of whom are “working a program of recovery.”

Programs of Recovery include:

  1. Alcoholics Anonymous;
  2. Narcotics Anonymous;
  3. Overeaters Anonymous;
  4. Cocaine Anonymous;
  5. Debtors Anonymous;
  6. Co-Dependents Anonymous; and many others.

A 12-Step meeting is described generally as a discussion among a group of people who seek relief from a pattern of behavior which has resulted in consequences which are not acceptable, or, if acceptable in the past, are no longer acceptable. Often the meeting will begin with the reading of a meditation chosen by the group. The reading is chosen for its potential to encourage a discussion of a topic likely to develop insight into the behavior or circumstances which may underly engaging in maladaptive behaviors. After the reading, one person starts the discussion by sharing thoughts that the reading brought to mind or by sharing their emotional status as it relates to their pursuit of recovery. The next speaker may be sitting next to the first speaker or may be selected in any one of several fashions. Each speaker elaborates on how the reading or the other attendees’ comments effected them. Attendees are free to “pass” if they don’t wish to share. The meeting usually gives all attendees an opportunity to share or ends at a certain, pre-arranged time. The meeting usually closes with a prayer or moment of silent meditation.

Why a 12-Step Meeting?

It is probably clear from the list of applications of the 12 steps that they are applied to many and diverse problematical behaviors and ways of thinking. A surprising element of the usefulness of the steps may be that, in most cases, the cessation of the maladaptive behaviors which bring us into the room is not the basis for the recovery sought. “Our liquor was but a symptom.” Alcoholics Anonymous (The Big Book) p. 64. Anxiety and fear commonly cause the behavior we are trying to end. That is to say that our thinking makes us sick!

It is said that there are many promises in the Big Book of Alcoholics Anonymous which are brought about by 12-step principles. The promises are the result of “working the steps,” and becoming engaged in the work of the program of recovery. The most well-known collection of promises are found on pages 83 and 84 of the Big Book. This section of the book reads,

“We are going to know a new freedom and a new happiness. We will not regret the past nor wish to shut the door on it. We will comprehend the word serenity and will know peace. No matter how far down the scale we have gone, we will see how our experience can benefit others. That feeling of usefulness and self-pity will disappear. We will lose interest in selfish things and gain interest in our fellows. Self-seeking will slip away. Our whole attitude and outlook upon life will change. Fear of people and of economic insecurity will leave us. We will intuitively know how to handle situations which used to baffle us. We will suddenly realize that God is doing for us what we could not so for ourselves.”

Who should attend?

If you are currently working a program of recovery which uses one form or another of the Twelve Steps, you are encouraged to bring your recovery to this venue. If you would like to be a part of a 12-step program of recovery and have not tried it yet, we would love to have you. As you may know, or are likely to come to know, there are gifts that each of us give each other when we attend meetings. One gift we receive at meetings like this is the welcoming knowledge that we are not alone. I am usually unable to guess what I need from a meeting and have even less awareness of what I have to give to another attendee and that is when the magic happens.

What can we look forward to?

  • A community of caring people.
  • A group comprised of people who go way beneath the surface to discover how they really feel and why they make the choices they make.
  • A collection of friends that you may not have known before the meeting, but who you come to esteem and respect at depth almost immediately.

Watch for invitations to the meetings on the TCDLA listserve and make your reservations early. I hope to see many of you as we seek to “trudge the road of happy destiny” and learn to accept ourselves.

*I don’t claim to have any particularly deep understanding of any program of recovery, including the program of Alcoholics Anonymous. This is true despite having attended between 3 and 8 meetings per week for a little over 26 years. I have been told that “there are no experts in Alcoholics Anonymous” and I believe that to be the truth both generally and specifically of me.

All You Need to Know: A Texas License to Carry Holder’s Rights While Traveling to Another State

I am a License to Carry Holder in the state of Texas and have been one for over 15 years. Since I obtained my License to Carry (“LTC”), I have had no problem renewing my license. In fact, most of the time I conceal carry in Texas. Moreover, I have flown to other states with my firearm. When I travel to another state, I check my firearm in at the airport according to airport protocol. This process involves me placing the unloaded firearm in a hardback carrier, which is inside a locked piece of luggage with an information card I was required to complete. I had never had any issues traveling to and from another state with my firearm until my return from vacation in New York back to Texas before the pandemic.

I attempted to check in my firearm at LaGuardia Airport for my flight back to Dallas. Upon attempting to do so, a Southwest Airlines attendant notified the NYPD officers stationed at the airport. The officers confronted me about possessing a handgun in New York City. They asserted that it was illegal under New York law to possess a handgun in New York. I politely informed the officers that my right to legally possess a handgun did not expire simply because I was traveling through New York City. I then stated that I was departing from New York City, thus passing through New York City, which is no different than if I was in possession of a handgun “driving through” New York. More importantly, Texas has authorized me to carry a gun in public and this right was not extinguished just because I was passing through New York City. Finally, the officers agreed to let me check my bag with my gun and fly back to Dallas, but only after insisting I go through some additional security measures and threatening me with arrest.

While I am thankful and fortunate that this encounter did not escalate further, I realize that other people may not be as fortunate, but more importantly, they may not be as well informed about their Texas LTC rights. I succeeded in deescalating the situation and walked away unharmed because I knew my rights as a Texas LTC Holder. Had I not known my rights, this situation may not have ended the same way.

Texas is a “shall issue” jurisdiction in regard to obtaining a LTC. “Shall issue” means that “[s]tate law that provides that, upon completion of specified requirements, a law-abiding person shall be granted a permit to carry concealed firearms.”1 In order for a person residing in Texas to obtain a License to Carry a Handgun, a person must satisfy the requirements listed in Tex. Gov’t Code § 411.172.2 Indeed, Tex. Gov’t Code § 411.172(a) states a person is eligible for a license to carry a handgun if the person:2,3

(1) is a legal resident of this State for the six-month period preceding the date of application under this subchapter or is otherwise eligible for a license under Section 411.173(a); 
(2) is at least 21 years of age;
(3) has not been convicted of a felony;
(4) is not charged with the commission of a Class A or Class B misdemeanor or equivalent offense, or of an offense under Section 42.01, Penal Code, or equivalent offense, or of a felony under an information or indictment;
(5) is not a fugitive from justice for a felony or a Class A or Class B misdemeanor or equivalent offense;
(6) is not a chemically dependent person;
(7) is not incapable of exercising sound judgment with respect to the proper use and storage of a handgun;
(8) has not, in the five years preceding the date of application, been convicted of a Class A or Class B misdemeanor or equivalent offense or of an offense under Section 42.01, Penal Code, or equivalent offense;
(9) is fully qualified under applicable federal and state law to purchase a handgun;
(10) has not been finally determined to be delinquent in making a child support payment administered or collected by the attorney general;
(11) has not been finally determined to be delinquent in the payment of a tax or other money collected by the comptroller, the tax collector of a political subdivision of the state, or any agency or subdivision of the State;
(12) is not currently restricted under a court protective order or subject to a restraining order affecting the spousal relationship, other than a restraining order solely affecting property interests;
(13) has not, in the 10 years preceding the date of application, been adjudicated as having engaged in delinquent conduct violating a penal law of the grade of felony; and
(14) has not made any material misrepresentation, or failed to disclose any material fact, in an application submitted pursuant to Section 411.174 (Application).

Currently, thirty-five states honor a Texas LTC, including Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Iowa, Kansas, Louisiana, Michigan, Montana, Nevada, North Carolina, Ohio, Oklahoma, Pennsylvania, Tennessee, Utah, Vermont, and Virginia.4 However, four of these states- Colorado, Michigan, Florida, and South Carolina- will only recognize a residential Texas LTC.5 For instance, in Florida, Fla. Stat. § 790.015 states that a Florida nonresident may carry a concealed firearm while in Florida so long as the nonresident (a) is at least 21 years of age; (b) holds in his or her immediate possession a valid license to carry a concealed weapon or concealed firearm issued to the nonresident in his or her state of residence; and (c) is a United States resident.6 There are fourteen states that do not honor a Texas LTC: California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, Washington, and Washington D.C.7 However, people holding a LTC from California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, and Washington may carry in Texas.

Media Relations Committee: Who We Are, What We Do, and Why it’s Important

Hi, I’m Lisa Greenberg, and I’m so excited to co-chair this committee with the brilliant John T. Hunter from San Antonio. We want to tell you what this committee is about, what we do, and why it matters to all the members of the Texas Criminal Defense Lawyers Association.

As criminal defense lawyers, we tend to have a love/hate relationship with the media. The media has generally been unhelpful in educating the public about the facts of our cases or in helping prospective jurors keep an open mind. However, in a democratic society the media serves a very important role. It educates voters on issues they may care about at the polls. This is what elected officials care about most. 

Many times, in courtrooms, egregious offenses, constitutional violations and unfair conduct may occur at the hands of elected officials such as judges, district attorneys and local sheriffs. However, without the media, the public may not know or care about such issues. The media gives us an outlet to reach large numbers of people and can inform them on key issues that are important to us. The media can also act as a watchdog to keep these occurrences from happening regularly or let elected officials know they are being watched.

The Media Relations Committee is made up of a large number of criminal defense attorney members in the State who can be the eyes and ears of our Organization on occurrences in local courtrooms, jails, etc. that may need some attention from the media and, in turn, scrutiny from the public.This committee is one of the largest that TCDLA has, with members from all areas of Texas to ensure every area is covered in case such an event occurs.

One of our tasks is to make sure we have an up-to-date database of media outlets so that when we vote as a committee to issue a press release, we can send the release out quickly to media contacts directly for coverage. We intend to maintain relationships with reporters, news bloggers, and other media sources to be able to access such contacts quickly and get a response. The second main task of our committee is to draft and send news releases. We will direct news releases to the public in a manner where the information is digested quickly and understood, and also rallies the support in the desired manner.

The third task of our organization is to follow up with reporters. Once interest is peaked with a news media outlet, there are bound to be questions or requests for comment. We need to make sure as an Organization our voice is heard loudly and clearly on issues that affect us, our clients, and their rights. We will try to have a point of contact for each area, or a person to direct inquiries to, who can answer these questions clearly and in a manner benefiting our cause.

The media has always been a double-edged sword for many of us in criminal defense. However, in the age of quick information, constant media headlines, and breaking news blaring at us from all different angles, it is important that our Organization has a committee designed to deal with important issues and have our say to the public about the many issues we are facing in our courtrooms, jails, and workplaces.

Biases. We All Have Them. What Are Yours?

Tired, stressed and with limited time, I hurry into my local grocery store to grab a few items for dinner. As I approach the checkout lines, hoping to find a relatively short one, I see a 5-year-old child flailing on the floor. Her mother is right next to her –and so is the candy display. What are your thoughts? I immediately thought, “This mother needs a firm hand to get control and discipline the child. Otherwise, this spoiled rotten child will grow up to be my client in about 15 years.”

While getting into my vehicle, in a rush to get home, I notice the mother and child getting into their minivan.  More importantly, I notice the autism awareness sticker on the back window. I stop in my tracks. Rather than a spoiled child, or lack of parenting skills, what I witnessed was an autistic meltdown, brought on by overstimulation, that sent the poor child into a tailspin.

How much did your biases play a part in your thinking in the child scenario? A bias is a preference for or against an individual or group that interferes with or influences fair judgment. My bias was about bad parenting or bad behaviors in a child. It clouded my judgment, causing me to see the situation as that of a bad parent or a bad child. 

What Are Biases?

We all have biases. It takes vulnerability to acknowledge these biases. Biases can be both conscious and unconscious. Implicit biases are biases that are unconscious, so they can be hard to spot. Implicit biases are unconscious attitudes and stereotypes, also known as implicit social cognition, that affect our understanding, actions, and decisions in an unconscious manner. They can be seen manifested in all areas of life including the criminal justice system, workplace, school setting, and in the healthcare system.

What Can We Do About Our Biases

How do we address our unconscious biases? Consider the following questions from the website Love Has No Labels: Have you ever avoided sitting next to someone in public because of your perception regarding their race, religion, or ability? Have you ever justified using offensive language because a friend told you it does not bother them? Do your three best friends look like you? Have you ever joked around and told someone to “stop acting like a girl”? Have you ever referred specifically to someone’s race when it was not necessarily relevant (e.g. “a black doctor” or “Latina lawyer”)? Have you ever assumed a person’s stance on social issues based on their religion? Have you ever ruled out certain neighborhoods as places you might live or send your kids to school based on the neighborhood’s demographics?

I regretfully admit I have done all of these. The good news is, I can eliminate my own implicit biases through awareness and action. So can you. 

How do our biases affect our work within the criminal justice system?  There are financial, racial, sexual, gender, and religious biases that permeate the criminal justice system. Have you ever had a prosecutor make a better offer to a codefendant who had a retained lawyer? Is there an implied bias that the person who can retain a lawyer is a better person than the one that has a court appointed attorney? As a court appointed attorney, I demand the same plea bargain that the retained attorney received, thereby doing my best to equalize the playing field.

Have you ever had a judge make a bail or punishment decision based on the orange jumpsuit worn by your client? Is there an implied bias that because someone is in jail and not out on bond they are a bad person and needed to be punished? We can confront and challenge the ruling of the court if we see this disparity. Do not be afraid to point it out.

Have you ever had to talk to a client and explain they would be judged differently due to their race, sexual orientation, religious beliefs? Do not ignore these differences. Everyone else is thinking about it. Discuss these differences with the court and the jury; do your best to demystify and dismantle the prejudices or biases.

Have you ever had to tell a client they will hear the words, “boy” or “little lady” from the bench or prosecutor? Have you ever had to hear these words addressed to you? Tell the Court or the opposing party what you expect to be called. Do not allow them to get away with derogatory language.

It is hard to acknowledge that the world we live has all kinds of biases, stereotypes, and discrimination—and that we unwittingly contribute to them. However, it is a fact. We must acknowledge it. Acknowledging our biases, stereotypes, and prejudices is the first step towards change.

I challenge everyone to take a personal self-assessment, make a personal inventory of your own bias and prejudice, and then make a plan of action of how you want to improve yourself through your thinking. Part of your plan could be reading a book about biases or “blind spots” or talking to your children about biases or stereotypes and how to avoid them. The TCDLA diversity committee can provide a mentor; creating a safe environment to discuss your biases or prejudices. Looking inward and being brutally honest with ourselves is the only way we will be able to reconcile what is happening in our society today with how we can make it better. We must stand together as a legal community to fight against oppression, inequalities, and discrimination. As we continue to grow and reflect as a society and as a legal community, we need to challenge these biases and prejudices when we see them. We will be better advocates against biases by recognizing our own. Keep fighting my fellow warriors and Fight the Bias.

  1. I am a proud parent of an amazing autistic son.
  2. https://www.adl.org/sites/default/files/documents/assets/pdf/education-outreach/Personal-Self-Assessment-of-Anti-Bias-Behavior.pdf
  3. https://implicit.harvard.edu/implicit/selectatest.html
  4. https://lovehasnolabels.com
  5. https://ethicsunwrapped.utexas.edu/video/implicit-bias
  6. Mahzarin Banaji & Anthony Greenwald, Blind Spot: Hidden Biases of Good People (2013).
  7. Jerry Kang et al., Implicit Bias in the Courtroom, 59 UCLA Law Review 1124 (2012).

Tips for Avoiding Lawyer Burnout

Having practiced criminal law for over 20 years, I am sometimes asked, “Have you ever felt burned out?” My response is, “it’s not if, but when, and how many times?” If you are going to make the practice of law a lifelong career, I guarantee that you’ll be burned out more than once in your practice. Traditional advice is usually something along the lines of taking a vacation, spending time with your family, investing time in a hobby, exercise, and so forth. The problem with this advice is that it does not deal with the core problem of why you are feeling burned out. You may have a fantastic vacation only to come back to work and feel worse than you felt when you left! You may spend time with your family, but if you are in a horrible mood from work, they may want away from you! You may take up golf, but you may lose your IRA in broken clubs thrown into the water hazard! As we all know, depression can be a significant struggle in our profession. So, what can you do? Here are three tips that have helped me over the years, and I hope they will help you.

Tip #1: Avoid situations that you hate.

This may sound easier said than done… especially when the mortgage is due. However, the cumulative effect of going to court with clients/issues/judges that you despise takes its toll on you over the years. Try your best to flow around these situations. If you hate defending sex crimes, don’t take them. If you’re on the appointment list, ask not to be appointed to these types of cases. If you hate a judge, avoid going to his/her court if possible. If you despise writing appeals, don’t be on the appellate list or take appeals.

Tip #2: Become an authority on cases you like.

This is the flip side to #1. If you enjoy helping first-time offenders getting cases sealed/expunged, try to get your name out as the expungement guru. If you love the science behind determining alcohol concentrations in breath or blood, get the word out in the legal community that this your thing. Write a paper for TCDLA. Give a lecture at a college/bar meeting. Make a YouTube video and add the link to your website.

Tip #3: Seek out help.

I mean seek out legal help. If you have a horrible trial you just can’t get out of, ask a colleague you trust to sit second chair or ask a college/law student to be your assistant. He/she may only be responsible for being a buffer between you and your client. But the emotional support from having a friendly face that is on your side cannot be overemphasized. Feeling like the world is against you when the judge, jury, prosecutor, and sometimes your client can be demoralizing. If you have a legal problem that has you stumped, reach out to a friend, colleague, or TCDLA. If you have a challenging federal case, call the federal defenders in your area. Most people are flattered when you ask them for advice. It makes them feel like you trust their opinion. We all need that from time to time.

In conclusion, I hope these tips have been of some help. We are all comrades in arms and deal with the same type of problems: Austin, Houston, Dallas, Nacogdoches, and everywhere in between. Take care, good luck, and have fun!

Strike Force is Not Just For Young Lawyers

I am fortunate. I’m not headed to jail right now. Given a trial date of November 30, and firmly believing we could not receive a fair trial under present circumstances, we filed an edited version of TCDLA’s COVID-19 continuance motion. It was summarily denied without discussion, and a second emergency motion was filed raising the issues that an expert witness was unavailable and that my co-counsel on the case is a severe asthmatic who could not and would not participate until he’d be able to get a vaccine for this virus.

The trial was moved to December 7. I knew that, if ordered to go to trial under COVID restrictions, I could not do my job up to my own standards, and I would not agree to go forward. I would have to commit contempt of court and risk jail, because I could not allow my client to be convicted due to my reluctance to anger the court. With some trepidation, I started to prepare myself for being convicted of contempt.

I contacted the Task Force, and several stellar members—Mark Thiessen, president of the Harris County Criminal Lawyers Association, Nichole Hochglaube, and Mark Bennett all stepped up. Mark Thiessen and Nicole both appeared via Zoom at the emergency continuance hearing, and made their presence known. Knowing lawyers of this caliber had my back was critical in my going forward and insisting that this case could not be tried, and a jury simply could not be selected, under circumstances in which the face of every venire member and witness was concealed. The trial was continued—until April 2021—in the belief that a vaccine can be provided by that time.

I’ve been doing this for more than 30 years now, and I still find the Strike Force to be an essential resource when the going gets tough. None of us can do this work without, occasionally, having to take a stand that risks our becoming the defendant, instead of the defender. And when that occurs, knowing that we’re not alone is invaluable.

Free Speech in Texas

What is speech? What makes a restriction content based? What is substantial overbreadth? Can a substantially overbroad content-based restriction on speech ever satisfy strict scrutiny?

The answers to these questions may become clearer any Wednesday now. The Court of Criminal Appeals is currently considering four overbreadth challenges to the constitutionality of different penal statutes. These challenges may, before this article is published, change the face of free-speech law in Texas.

Meanwhile, this article will provide a broad overview of challenges to content-based restrictions on speech.

Vagueness vs. Overbreadth

First Amendment challenges to content-based restrictions come in two forms: vagueness and overbreadth.

Vagueness

A statute is void for vagueness under the First Amendment if:

  • A person of ordinary intelligence cannot know what is forbidden;
  • There are no determinate guidelines for law enforcement; or
  • The law is not sufficiently definite to avoid chilling protected expression.

Take, for example, Texas’s harassment statute, section 42.07 of the Texas Penal Code. The harassment statute forbids certain speech intended to “harass, annoy, alarm, abuse, torment, or embarrass” another. Expression is chilled not only by the statute’s threat of conviction (because a jury might find that the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass) but also by the threat of arrest (because a police officer might think the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass) and the threat of prosecution (because a prosecutor might think the defendant intended to harass, annoy, alarm, abuse, torment, or embarrass).

Courts assume that when dealing with statutes such as sexual assault of a child, which restrict non-speech conduct based on the actor’s intent, a jury can reliably read an actor’s mind.

But speech is special—the Free Speech Clause itself is proof of that. Society does not have the same interest in preventing the chilling of non-speech conduct that it has in ensuring that protected speech is not chilled.

Even assuming that a jury can reliably read a speaker’s mind, section 42.07 risks chilling speech because whether a person will be arrested or prosecuted for his speech depends not on a jury’s mindreading, but on a police officer’s and/or a prosecutor’s.

A person might beat the rap and not the ride, but the ride is expensive and no fun and for the ordinary speaker, both the threat of the ride and the threat of the rap can chill speech. A restriction criminalizing speech based on the speaker’s intent “…blankets with uncertainty whatever may be said. It compels the speaker to hedge and trim.” See Thomas v. Collins, 323 U.S. 516, 535 (1945). Under Texas Penal Code section 42.07, it is the threat of prosecution, and not only the threat of conviction, that will likely cause a speaker to hedge and trim.

The speaker who does not intend to annoy has no way to know that his words will not be misinterpreted. He is at the mercy of the inferences of others who might not wish him well. A distinction based on the intent of the speaker or the speech’s effect on its listeners “…offers no security for free discussion.” See Fed. Election Com’n v. Wisconsin Right To Life, Inc., 551 U.S. 449, 468 (2007) (external citation omitted).

Overbreadth

The First Amendment overbreadth doctrine is also intended to prevent restrictions chilling protected speech, but it is not dependent on a lack of clarity. While vagueness is about the person knowing what a statute forbids; overbreadth is about what the statute actually forbids. When it comes to speech, the vagueness argument is basically that speakers can’t determine whether  constitutionally protected communications are prosecutable under the statute at issue. The overbreadth argument is that protected communications are, in fact, prosecutable under the statute but should not be.

Lawyers often confuse vagueness with overbreadth. If a statute seems to restrict protected speech—if it could be used to restrict a real and substantial amount of protected speech—it is not vague, but overbroad.

The Court of Criminal Appeals itself has shown a lack of clarity regarding the difference between vagueness and overbreadth: “[The defendant’s] argument, as we understand it, is that § 42.07 is overbroad on its face because its inherent vagueness makes it unclear whether it prohibits a substantial amount of protected speech.” See Scott v. State, 322 S.W.3d 662, 665 fn.3 (Tex. Crim. App. 2010) (abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 2014)). That is not the argument; that is not what overbroad means.

A content-based restriction that clearly restricts only unprotected speech is valid. A content-based restriction that leaves in doubt whether protected speech is punishable or not is vague. A content-based restriction that clearly restricts a real and substantial amount of protected speech (in relation to its legitimate sweep, the unprotected speech it restricts) is overbroad.

Protected speech is speech outside all recognized categories of historically unprotected speech. States are not free to invent new categories of unprotected speech; they must provide evidence of a longstanding tradition of restricting speech in that category.

So, the overbreadth argument is that the statute, regardless of how ambiguous it might be, forbids speech that is not unprotected.

Returning to the example of Texas Penal Code section 42.07 harassment, while the vagueness argument is that speakers can’t determine whether their speech will be construed as intended to harass, the overbreadth argument is that even speech that is intended to harass (not to mention “annoy, alarm, abuse, torment, or embarrass”) is not unprotected speech, so that the statute by its terms restricts a real and substantial amount of protected speech.

You can see how there might be interplay between these two arguments: one approach courts have taken to save overbroad statutes from overbreadth is to interpret them narrowly—to impose on the Legislature’s words a narrower meaning than the common or legal definition gives them.

Whether rewriting the statute thus is legitimate or not, doing so can convert a statute that was overbroad into one that is vague. While speakers are expected to be familiar with the words of a statute, they are not likewise expected to have read the cases interpreting a statute. So, the fact that the words of the statute alone do not limit the statute’s reach can make the statute itself vague.

Moreover, in Texas, a charging instrument is drafted and a criminal trial jury is instructed according to the language of the statute; there is no mechanism for incorporating narrowing definitions into an indictment, much less a jury charge. Even a defendant who is familiar with the narrowing of an overbroad statute has no guarantee that he will not still be prosecuted and even convicted for his protected speech.

Facial Overbreadth vs. As-Applied Overbreadth

First Amendment overbreadth challenges to statutes can themselves be divided into facial (or as-written) and as-applied challenges.

An as-written challenge makes the argument that, regardless of whether the speaker’s own speech is protected, the statute restricts (based on its content) a real and substantial amount of speech that is protected. An as-applied challenge to a statute is that the speech for which the speaker is being prosecuted (based on its content) is itself protected (that is, not in a recognized category of historically unprotected speech).

As an illustration, defamatory speech is unprotected. If a person is being prosecuted under a facially overbroad or vague statute, but their speech is for some reason unprotected, they might have an as-written but not an as-applied challenge. If a person is being prosecuted under a valid statute, but their speech is protected, he has an as-applied but not an as-written challenge. And if a person is being prosecuted under an overbroad or vague statute for protected speech, they have both an as-written and an as-applied challenge.

As-written challenges can be made pretrial, through either an application for writ of habeas corpus (which can be appealed pretrial) or through a motion to quash (which can only be appealed after a judgment).

Historically, as-applied challenges could only be made in trial because the facts that must be developed to determine whether speech is protected are the same as the facts that must be developed to determine whether the speech violates the statute. Generally, as-applied unconstitutionality challenges were not cognizable in pretrial habeas.

In the Rick Perry case, however, the Texas Court of Criminal Appeals considered the appeal of the then-Governor’s pretrial habeas as-applied challenge to the Abuse of Official Capacity statute. See Ex parte Perry, 483 S.W.3d 884 (2016). The Perry opinion offers two justifications for the cognizability of Perry’s pretrial as-applied challenge. Presiding Judge Keller’s opinion held that Perry’s challenge was cognizable because Perry’s rights would be “effectively undermined if not vindicated prior to trial.” Id. at 895 (footnote omitted).

It is unclear what rights, other than a governor’s right to exercise his veto power, would be cognizable under this rule. For example, intermediate courts have held that the right to free speech is not a right effectively undermined if not vindicated before trial, but it is not obvious that the chilling effect of a pending criminal prosecution on the accused’s right to speak freely does not effectively undermine that right.

Judge Newell, joined by Judges Keasler and Hervey, suggested a different test for pretrial cognizability—a test that might allow a defendant to terminate the chilling effect of a content-based prosecution without the cost and expense of trial. In Judge Newell’s view, “addressing the constitutional claim because the violation is apparent from the pleadings resolves the matter much more cleanly.” Id. at 924.

The Perry split on this issue appears to be the following: Presiding Judge Keller and Judges Yeary and Alcala for the “effectively undermined” rule; Judges Newell, Keasler, and Hervey for the “apparent from the pleadings” rule; Judge Meyers against cognizability for either reason; and Judges Johnson and Richardson not weighing in on the question.

An as-applied challenge under the Free Speech Clause is appropriate when the statute is not facially overbroad, but the defendant’s own speech is constitutionally protected (that is, not in an unprotected category)—in other words, when the statute restricts some protected speech, as exemplified by the defendant’s, but not a real and substantial amount of protected speech. The lesson of Perry’s uncertainty is that, where the constitutional violation is clear from the pleadings (for example, where the sworn Complaint gives enough detail that the court can tell that the accused’s speech is not in fact within any unprotected category), the accused may be able to pursue an as-applied challenge before trial.

Or maybe not. But what does the accused have to lose?

Plenty to Gain

A continuance can be as good as an acquittal for as long as it lasts. If you file a pretrial application for writ of habeas corpus challenging a content-based restriction either as written or as applied to the speech of the accused and the trial court denies relief, you can appeal to the intermediate court of appeals, and from there to the Texas Court of Criminal Appeals. But what happens to the trial-court case in the interim?

As a practical matter, most trial courts want to see legitimate constitutional questions answered before trial and so will not proceed to trial while a habeas appeal is pending. Whether the trial court may proceed to trial while the habeas appeal is pending is an unanswered question.

There have been recent cases from Austin and Beaumont supporting the proposition that a trial court may proceed, but neither case addressed section 11.32 of the Texas Code of Criminal Procedure which provides that once the defendant has appeared in court on the habeas, “he is no longer detained on the original warrant or process, but under the authority of the habeas corpus” until the habeas has been finally determined. See Tex. Code Crim. Proc. § 11.32. If the “original process” is the indictment or information  and a person can only be tried on an indictment or information, if the person is no longer detained on the original process, it stands to reason that he cannot be tried until the habeas is resolved.

It’s an open question, though, and it’s going to have to be litigated in mandamus when a trial court attempts to put a defendant to trial while a viable free-speech challenge is pending, and then possibly taken up to the Texas Court of Criminal Appeals on a Petition for Discretionary Review (PDR).

Is it Time to Defund TJJD’s State Schools?

“There can be no keener revelation of a society’s soul than the way in which it treats its children.”

Nelson Mandela

Adults can’t be trusted to take care of children placed in their custody in an institutional setting.  At least it seems that way in Texas.  It’s not just the recent problems the Texas Juvenile Justice Department’s (TJJD) state school system, it’s the long and sordid history in this State vis-à-vis delinquent children committed to those state schools.

From its inception in 1949, Texas’ state school system for juvenile delinquents (Texas Youth Development Council, Texas Youth Council, Texas Youth Commission, and now, Texas Juvenile Justice Department) has been fraught with scandal and secrecy regarding the abuse of children it its charge.

In the early 1950s for example, allegations of abuse surfaced at the Gainesville school for girls.  During a habeas corpus hearing, one girl testified about how one man beat her with a leather strap while two other men held her.  The 1960s, under the leadership of TYC director James Turman, saw an FBI investigation of the Gatesville school for physical abuse and denial of routine medical care, another investigation of a guard beating a resident into a coma, and a legislative surprise inspection of a state school where the legislators observed residents with bruises, black eyes and swollen faces.

The 1960s also ushered in a golden era of juvenile rights, with the U.S. Supreme Court deciding cases like Kent v. United States, 383 U.S. 541 (1966) and In re Winship, 697 U.S. 358 (1970).  The seminal U.S. Supreme Court case regarding juvenile rights, In re Gault, 387 U.S. 1 (1967), was published in 1967.h, Gault made it clear that children in the juvenile justice system have basic due process rights under the U.S. Constitution.  Among those rights, which we seem to take for granted today, are the right to counsel and the right to have a hearing.   Despite Gault, juvenile courts in Texas were slow to recognize these rights. 

Morales v. Turman

In 1970, 15-year-old Alicia Morales was working and earning $70 per week.  And like clockwork, her father took all but $5 of it each week.  When Alicia got tired of this and refused to cooperate with her father, he decided to punish her by involving the state.  Alicia’s father, El Paso County’s Chief Juvenile Probation Officer, and the County Judge signed an “agreed judgment” committing Alicia to TYC (Texas Youth Council).  The commitment was done without a hearing and without counsel, contrary to Gault’s mandates.  The reason for Alicia’s commitment: she was deemed to be an incorrigible child.

Because that kind of procedure-less commitment was still common in Texas, a class-action a federal class-action lawsuit was filed, with Alicia being one of the named plaintiffs.  The lawsuit was expanded to include abuse occurring at several of the state schools.  What the investigation uncovered was horrific. 

After a six-week trial, Judge William Wayne Justice entered an emergency interim order granting preliminary injunctive relief.  The injunctive relief included such matters as physical force and solitary confinement.  The order contained 32 findings of fact, including:

  1. Correctional officers at Mountain View presently administer, or have in the past administered, various forms of physical abuse, including slapping, punching, and kicking. One form of this physical abuse, referred to as “racking,” consists of requiring the inmate to stand against the wall with his hands in his pockets while he is struck a number of times by blows from the fists of correctional officers. Other abuse consists of correctional officers administering blows to the face with both open and closed hands.
  2. Tear gas and similar chemical substances have been used by agents or employees of the defendants on Mountain View inmates in situations in which no riot or other disturbance was imminent. One inmate, for example, was tear-gassed while locked in his cell for failure to work; another was gassed for fleeing from a beating he was receiving; and another was gassed by a correctional officer supervisor while he was being held by two 200-pound correctional officers. 17. Most or all of these security facilities contain single rooms or cells in which juveniles are, or have been in the past, locked for periods of time as long as a month or more, with no opportunity to leave the cell except for daily bathing, hygiene, and eating. Many juveniles so confined have little or no contact with casework, medical, or psychological staff during the period of their confinement. 20. Inmates in some security facilities have been forced to perform repetitive, make-work tasks, such as pulling up grass without bending their knees or buffing a floor for hours with a rag. During the pendency of this lawsuit, inmates were permitted to adopt a kneeling posture, rather than a bending posture with unbent knees, for the performance of the grass-pulling.

 Morales v. Turman, 364 F. Supp. 166, 170-172 (E.D.Tex. 1973).-172

Fortunately, major reforms came out of this litigation.  The centerpiece of the reforms came in 1973 with the creation of Title 3 of the Family Code, the Juvenile Justice Code.  Professor Robert O. Dawson was the primary draftsman, and many of the concepts and provisions from then are still found in the code today. 

TYC Scandal 2007

During a Texas Senate Finance Committee hearing on February 1st, 2007, Senator Juan Hinojosa asked TYC’s executive director, Dwight Harris, about sex-abuse allegations at the west Texas state school in Pyote.  There were rumors about sex abuse at Pyote, but this was the first time it was spoken of out loud in a public forum.  This was the beginning of another scandal at TYC.

From December 2003, and continuing through February 2005, Pyote’s assistant superintendent used his position over the juveniles to extract sexual favors from them.  He had the authority to shorten or lengthen a juvenile’s indeterminate sentence at the school.  The superintendent would bring juveniles into his office late at night, at times continuing into the early morning, where he would engage in sex acts with them.  Because of the power imbalance, the juveniles had little choice but to acquiesce, lest their stay at Pyote be extended.

These allegations were bad.  The cover-up of and dismissiveness toward these allegations may have been worse.  Although knowledge of the unusual nighttime visits and general unease about the assistant superintendent’s activities made it up the chain of command, the concerns remained inside the Pyote State School’s administration.  It took two juveniles confiding in a volunteer tutor, who in turn reported it to a Texas Ranger, to get law enforcement involved.

Despite the report to the Texas Ranger, nothing happened for the next two years.  Although there was sufficient evidence to press forward with charges, neither the local county prosecutor nor the U.S. Attorney had any interest in prosecuting.  It wasn’t until the story broke two years later, following Senator Hinojosa’s questions in the Senate Finance Committee, that the allegations were treated seriously.

While the Pyote scandal was unfolding, the U.S. Department of Justice was investigating Evins Regional Juvenile Justice Center in Edinburg for violence occurring at that school.  On March 15, 2007, the DOJ wrote a letter to then-governor Rick Perry to report its findings.  In addition to making findings about juvenile on juvenile violence, the DOJ found “an unacceptably high degree of physical abuse of youths by staff at Evins. We also found a disturbing consistency in the youths’ accounts of the use of unnecessary physical restraint and excessive force by many Evins’ staff.”

Other problems at other facilities soon came to light, such as the superintendent at Ayers halfway house in San Antonio shredding files and Coke County Juvenile Justice Center hiring a registered sex offender as a guard.

In response to these problems at TYC, the Texas legislature passed, and the governor signed SB 103 during that very legislative session.  Additional reforms in subsequent legislative sessions were also enacted.  Those reforms were designed to reduce the number of juveniles committed to TYC and provide for improved safety procedures.

Post TYC Scandal 2007

More than a decade after the Pyote and Evins scandals broke and legislative changes putatively fixed the problems, problems still exist within the state school system.  Headlines like “Gov. Greg Abbott ask Texas Rangers to investigate sexual abuse at youth lockups,” “Juvenile Justice Department employee arrested for having sex with inmate at Brownwood” and “Texas juvenile prison officer charged with sexually assaulting teenage inmate in his cell” are still all too commonplace.

The DOJ’s Bureau of Justice Statistics, within the last year, released a report on sexual victimization reported by youth in juvenile facilities.  While nationally, an estimated 7.1% of juveniles reported being sexually victimized, three of Texas’ five state schools, McLennan County State Juvenile Correctional Facility, Gainesville State School, and Ron Jackson State Juvenile Correctional Facility, were ranked among the worst in the country.

After seven decades of existence, is the TJJD state school system working?  Or does a radical change need to happen?  Should Texas take a bold step like California governor Gavin Newsome did this summer when he announced he was defunding California’s juvenile prison system?  The funds that would normally have paid for California’s juvenile prisons will instead be redirected back to the local counties.

Physical and sexual abuse of juveniles seem to be woven into the fabric of TJJD state school system.  The past seven decades have shown that. 

Randal Chance, a retired inspector general for TYC, said during the 2007 scandal “TYC has established a dynasty of corruption that condones the mistreatment of youth in its care.”  State Senator John Whitmire, quoted in a December 13, 2019, article from the Texas Observer: “I think the campuses are out of control, the system’s dysfunctional and very dangerous.  I’m frustrated; I don’t know what it’s going to take. My worst fear is that it’s going to take a loss of life or lives to change it.”

Which begs the question: is it time to defund TJJD’s state schools?

A Better Kind of Wake-up Call

This morning I woke up to happy children, a freshly brewed coffee waiting for me and no bedhead.  And then my alarm went off.  I quickly realized I overslept, the kids were extra cranky and no surprise, my car needs gas.  The truth is my mornings begin with some variation of that quite regularly.  Despite the morning rush, I have found that there is one thing that I can do to get myself back on track and set my day up to be a productive one.  It does not cost anything and fits in your pocket. 

At the height of a particularly stressful part of 2018 (I laugh now as it pales in comparison to 2020), I stumbled across an article touting the importance of starting the morning on a positive note.  With just enough free space on my iPhone, I downloaded the free version of “Unique Daily Affirmations,” on the App Store.  It had a little tie-dye vibe to it and the text and fonts are simple and straightforward.  Certainly, this app would be the first to go once storage got tight, but nevertheless I set up my account and decided to give it a shot for a week.  The concept is simple, every morning a positive message appears by holding down a button.  Then you record yourself repeating the affirmation and play it back.  At first, I laughed at the sound of my morning voice which was less than inspiring and bordered on manly.  But, if we are being honest, by the third time I heard myself saying “I have the power to rise above what is expected of me,” I almost believed it.  And then I saw the time and realized the kids would be eating granola bars because we were now extra late to school. 

Day 2: I avoided playing with the settings and ignored my scary morning voice and told myself, “my possibilities are endless,” three times.   

Day 3: Forgot all about the app and remembered midday, right about the time I was looking for a good excuse to stop working on discovery responses.  What do you know, had to tell myself “I challenge, I work hard, I persevere,” three times?  Discovery responses (mostly) completed. 

And so, it has been since.  Most mornings, right after I curse the alarm, I reach for my phone and go to the affirmations app.  It takes me less than a minute to read the short phrase and play it back.  When it is a particularly inspiring phrase, I save it to the favorites tab and hope it will find its way back to me when I most need it.  There have been days when I feel like I am failing at just about everything and I question if I am capable of being a good advocate for my clients.  On these days, I have found that returning to my morning routine can be quite helpful.  I sit at my desk, close my door, and repeat the words of the day to myself three times.  Pro tip: a few deep breaths at the end really drive it home. 

On a particularly damaging day of testimony during my last trial, I skipped the restroom break and pulled out my phone for some words of encouragement.  I ignored all the text messages waiting for me, umpteen emails screaming about the work I was behind on, and went straight for the affirmations app.  “Today I will be proud of who I am,” popped up on my screen.  In that moment, I was most definitely not proud of who I was.  I felt like I was failing my client and his punishment would be life in prison.  I had missed some good shots with the last witness and my cross failed to produce anything helpful to our defense.  I was tired and hungry.  And now, I had skipped my bathroom break to tell myself something I did not believe in that moment.  I put my phone down and slumped into my chair, defeated and with a full bladder.  A few seconds ticked by painfully slow and then I compulsively reached for the phone again.  The app was still open, and the words stared back at me: Today I will be proud of who I am.  In the empty courtroom, I whispered the words to myself three times.  Then another three just for good luck. 

The Bailiff returned, asked if I was ready and then sent for my client and the jurors.  The next witness took the stand and then another.  I can not say that I had a brilliant cross examination or that the State’s witnesses were slaughtered for being self-serving hypocrites, but I did get in a few zingers.  I had gotten into my own head and convinced myself that I was not good enough, but with a few simple words, I had found just enough something in the privacy of my phone to pull me through and get back to defending my guy. 

It sounds cheesy, I know.  And if you are still reading this article, it is probably because you forgot to bring your phone into the restroom.  But hear me out, the loudest voice you will hear is your own.  It is the one that tells us we are either good enough or not.  Too many times, we use our words to undermine ourselves.  How often do you make a careless mistake and then proceed to follow up with, “I’m such an idiot”?  I spilled some coffee on my shirt right before Zoom court today and then called myself a dumbass.  Salt, meet Wound.  These mishaps are human.  Missing a deadline is bound to happen.  The point is that hearing yourself say hurtful things afterwards only magnifies the mistake and makes it harder to get back on track.  We are often very quick to criticize ourselves but slow to praise. 

There are lots of free apps available that promote mindfulness and positive thinking.  Whether you start your day with repeating an affirmation, or repeat a phrase as needed, reminding yourself that you believe in you can have a lasting effect.  Taking a few minutes to say something positive to myself has changed the way I approach my inner conversations.  I find it harder to say, “I’m so stupid,” after making a mistake now.  I am more aware of my own voice.   

I encourage you to turn up the volume on your own voice and speak kinder to yourself.  In the courtroom and in life, you are capable and worthy.  Now say it three times.

Get Back to Where You Once Belonged: TCDLA Declaration Readings July 2, 2021

It is early July. The morning is crisp and cool in the Texas town. Just before 9 o’clock, people converge from all directions, mingling on the shady west lawn of the courthouse square. Nearby, a historic whitewashed gazebo is the meeting place for a dozen or so well-dressed local attorneys.

A young lawyer curls her baby in her arms as an older lawyer shoos his toddler grandson from the makeshift stage. Children seem to be everywhere, running across the expansive grassy space with little American flags. Clerks, judges, and prosecutors file out from the courthouse to join the multitude for the familiar annual patriotic ceremony.

A man stands tall before the gazebo and proudly announces the reason for the gathering. He leads the crowd in the Pledge of Allegiance. “God Bless America” follows, performed by a talented young lawyer in a dazzling blue dress. A few tears are dabbed away.

The lawyers take turns reading the paragraphs of the great document. Some readers are talented orators, powerful advocates familiar to all. Others have lesser voices, but even the small children are silent, spellbound by the majesty of the message.

Another lawyer in a blue dress belts out a rousing rendition of “This Land is Your Land,” with everyone joining the chorus and clapping hands. Kids dance. There are hugs and group photos, interviews from the local media and salutations all around. Everyone is excited to do it all over again next year.

But next year is 2020. The pandemic hamstrings TCDLA’s great tradition of sponsoring local readings of the Declaration of Independence. Many local criminal defense lawyers are able to stage modified readings, mindful of health concerns. It is certainly not the same.

Meanwhile, the pandemic kills more than half a million Americans. What it can never kill is the American quest for liberty. The principles enunciated in the Declaration of Independence are eternal for all Americans.

By July 2021, it seems likely the TCDLA Declaration readings will return to normal. It is a chance for Texas criminal defense lawyers to publicly champion liberty and individual rights.

The founder of this wonderful tradition—Robert Fickman of Houston—will join me in coordinating statewide readings again this year. Those of you who have been involved in the past—you know who you are—will soon be contacted with information about the 2021 readings.

Visit TCDLA.com to see county coordinators. Email  to be added. Watch the 2020 TCDLA Declaration Video.

Please join us in honoring our nation’s most sacred document in the spirit of independence.