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Opinion: Many Texas Judges Acting Inhumanely

Our nation and the world are engaged in an awful battle with a deadly pandemic. Over a million people are already sick and many thousands will die. Officials have urged us to stay at home. They have called on courts to cease operating in all but the most essential situations.

Have all the criminal courts in Texas heeded the official admonishments?

No.

Many of our judges are still requiring the presumptively innocent accused on bond to attend court. These dockets are most often unnecessary. The accused who do not appear risk revocation of their bond and incarceration.

To needlessly require an individual charged with a crime to choose between risking the loss of their liberty or the loss of their life is nothing short of cruel.

People define themselves, particularly in times of crisis. Lincoln said if you wanted to test a person’s character, you need only give them power.

Unfortunately, at this critical time, too many of our Texas criminal court judges have chosen an inhumane path. In so doing, they have failed Lincoln’s character test.

These judges who have abused their authority and needlessly require court appearances have disgraced themselves, the bench on which they sit, and our criminal justice system.

Let these judges who have so acted be remembered for the poor and inhumane judgment they showed when it counted most.

WE WILL NOT BE DETERRED: Reading of the Declaration of Independence 2020

TCDLA is committed to celebrating our freedoms by organizing local readings of the Declaration of Independence throughout Texas every year. This year, perhaps more than ever, our annual patriotic project is especially warranted.

Criminal defense lawyers are at the point of the spear against despots, unreasonable laws, and misguided regulations. We therefore must remind the public how America’s founding document is relevant even in the face of a worldwide pandemic.

State Declaration reading co-organizer Robert Fickman and I invite all members to celebrate the Declaration of Independence on or about July 3 in a reasonable fashion depending on health risk circumstances. We hope you will follow whatever social distancing measures are recommended in your community. It may mean just one TCDLA member will read the Declaration on the courthouse steps without inviting an audience. It may mean a ZOOM reading. Whatever works best in your town is okay, as long as the Declaration gets read. As always, your event should be properly memorialized, so please send TCDLA your best photos/selfies of the reading, and please post the pix on social media.

We will not be deterred by the pandemic. Our commitment to the principles enunciated in the Declaration has never been stronger.

Supreme Court of Texas and Gray v. Skelton: Look Out, Criminal Defense Attorneys

After the Supreme Court decision in Peeler v. Hughes & Luce, criminal defense lawyers felt that they had immunity from malpractice. Ms. Peeler was convicted of tax fraud and sentenced to five years. She sued her criminal defense counsel for malpractice because he had failed to communicate a plea-bargain to her under which she was offered immunity. The Supreme Court dismissed her lawsuit, ruling that a criminal defendant could not sue for malpractice unless and until they had been exonerated, through direct appeal or post-conviction habeas corpus relief.

In its recent decision of Gray v. Skelton, No. 18-0386, 2020 WL 868122 (Tex. Feb. 21, 2020), the Supreme Court modified its holding in Peeler and its prior holding in Hughes v. Mahoney & Higgins, which tolls limitations on legal malpractice claims during appeals on the underlying case. Both modifications make it easier to prosecute legal malpractice claims against criminal defense attorneys.

Ms. Skelton, herself an attorney, was convicted of forging a will. Her story is compelling, and it is hard to understand why she was prosecuted at all, but she was—and convicted. She appealed, alleging, among other things, that her trial counsel rendered ineffective assistance in violation of the Sixth Amendment. The Court of Appeals upheld her conviction and the Court of Criminal Appeals refused her petition for review. Thereafter, she filed a habeas petition, again alleging ineffective assistance. The district court denied the writ, but the Court of Appeals agreed with her and vacated her conviction. The State then dismissed the charges without a second trial. And Ms. Skelton sued her original attorney for malpractice.

The first issue presented by these facts is how a criminal defendant establishes the “exoneration” or “actual innocence” requirement of the Peeler decision. Ms. Skelton argued that having her conviction vacated and all charges dismissed was enough, particularly when she is entitled to a presumption of innocence. Her former lawyer sought dismissal of the claims against him, arguing that her habeas petition may have established his ineffective assistance, but it did not establish her innocence and therefore, under Peeler, she could not sue him.

The court rejected Ms. Skelton’s “presumption of innocence” argument, observing that the presumption is merely a burden of proof rule and Ms. Skelton might actually be guilty of the crime even if she had been acquitted. Had the court stopped there, the only criminal defendants who would ever be allowed to pursue a malpractice claim would be ones who secured a finding of actual innocence in a subsequent habeas corpus proceeding. Securing a reversal and a second trial and an acquittal wouldn’t even be enough because that only establishes that the prosecution failed to carry its burden.

Rather than denying the right to pursue a malpractice claim to all such criminal defendants, the court adopted a modified procedure and a change to the law of professional negligence. For a criminal defendant, the court added to the four original elements of a malpractice claim (duty and a breach of the duty that proximately causes damage) a fifth requirement. Once the conviction is vacated, the plaintiff must obtain a jury finding of actual innocence in the malpractice case itself. The first question the jury will be asked is whether the plaintiff was innocent of the charge and, upon an affirmative answer to that question, the traditional legal malpractice jury issues would be submitted. The plaintiff’s burden of proof on the innocence question is the same as on all other questions: a preponderance of the evidence.

The second issue the court decided deals with the calculation of limitations for a criminal defendant’s legal malpractice claim. The Hughes tolling rule tolls limitations during direct appeals for the criminal defendant the same way it tolls limitations for the civil litigant. The ineffective lawyer representing Ms. Skelton argued, however, that the Hughes tolling rule should not apply to habeas corpus proceedings since they may not be initiated until years after the conviction and since there can be multiple habeas proceedings, one after the other. To solve this problem, the court extended the Hughes tolling rule to toll limitations for the time a habeas corpus proceeding is pending, but there would be no tolling during any gaps between direct appeals and habeas corpus. Thus, a criminal defendant who initiates a habeas corpus proceeding less than two years after the conclusion of all direct appeals would still be able to pursue a timely legal malpractice claim if the habeas proceeding is successful.

The first and most obvious lesson for the criminal defense lawyer from the Skelton case is that they may now be sued for malpractice if they provide ineffective assistance to a criminal defendant client. If you don’t have insurance, it might be worthwhile to consider it. A second related lesson is that criminal defense attorneys should keep track of their clients’ post-conviction activity and track their appeals and habeas proceedings before they discard files. Getting sued without the file cannot only deprive you of the ability to defend yourself, it can also result in a spoliation instruction for destroying evidence.

Inspire Your Clients to Get the Best Results

About five years ago, I started sending my misdemeanor clients a sequence of “life coach” emails that weren’t related to their cases. Each client would receive the first email a week after hiring me, then an email every 10 days or so (currently there are 15 total). The emails offered general life strategies as a way of dealing with the stress of being arrested. I recently received this email in response: 

Hi Charlie,

You represented me in 2017 for a DWI case, and as with most in this situation, it was probably the lowest point in my life. Well, things are definitely better now! I wanted to let you know that I was just accepted for spring admission in the Master’s of Legal Studies. I credit your help not only in making my legal situation better, but also the weekly emails you sent to help make better life decisions, self-care tips, and the reassurances that everything will be OK. Those emails really put me on this journey to go back to school and get out of that life that resulted in a DWI.    

Before I started the email program, I got some pushback from my staff, who thought that I was crossing a boundary and that our clients would consider the emails inappropriate. While I knew this was certainly a possibility, luckily the response has been overwhelmingly positive. Of course, many of my clients ignore the emails; there is nothing I can do about that. But many of them respond with enthusiasm—which prompts a short parable that I’m sure we’re all familiar with:

One day, an old man walked along the beach with thousands of stranded starfish in the sand. A young boy was picking up the starfish and putting them back in the water. The old man said, “There are too many, and only one of you. What difference can you make?” The young boy put another starfish in the water and said, “I made a difference to that one!” 

Of course, my clients didn’t hire me to be a life coach. They did, however, hire me to get the best result on their case. And as any experienced criminal defense attorney knows, clients who accomplish ambitious goals while the case is pending (and can provide documents that prove it) will usually get a better result on their case. 

It is powerful mitigation to show a prosecutor that a defendant has received a promotion, been accepted into college, started seeing a therapist, or completed a marathon. These types of accomplishments often “loosen up” a prosecutor during negotiations, especially if you can convince them that the life improvements were a direct response to the arrest. Occasionally, these documented accomplishments will result in some form of dismissal; other times, just a reduction in the terms of the punishment. But even if the prosecutor is unimpressed, clients who have made significant life improvements are often more accepting of the consequences and more successful during their probation because they’re in a better mental state. Either way, it’s a win/win situation.

The emails that I send include a combination of inspirational advice, practical health suggestions, offers to purchase audiobooks, and questionnaires about their goals. Each email includes links to articles I think are helpful, podcasts, or videos about the topic, and begins with: “This email is part of a series of practical advice on how to deal with the stress of being arrested. It is not specifically related to your case.”  This is the sequence I currently use:

  1. Introductory Message: The arrest is an opportunity to accomplish new goals.
  2. Questions: What goals are they working toward? What are the next (small) steps? Link to online questionnaire
  3. Introduction: Mind Maps (a graphic way to organize thoughts)
  4. Offer: To buy them the audiobook Sober Curious by Ruby Warrington. I use audiobooksnow.com (so they don’t have to use a credit card to open an account).
  5. Advice: Start exercising—running, swimming, etc.—and a request that they provide a photo of themselves doing the new activity
  6. Discussion: Non-alcoholic beers and wine are better than you think! Try them.
  7. Offer: To buy them Recovery (audiobook) by Russell Brand. This is an amazing book that will change people’s lives.
  8. Progress Report Follow-up: Link to online questionnaire
  9. Advice: Discover new online financial resources (budgeting software)
  10. Advice: Declutter and organize their home. Discuss The Life-Changing Magic of Tidying Up by Marie Kondo 
  11. Discussion: Getting audiobooks for free from the library
  12. Introduction: Massive online open courses, free online classes 
  13. Discussion: Local meetings for new interests on meetup.com
  14. Discussion: The Value of Sleep
  15. Suggestion: The power and importance of forgiveness. Link to podcast by Tony Robbins.

Setting up the email sequence can be easily done with any email automation software (Mailchimp, Constant Contact, etc.). There are dozens of options and many are free. I use Contactually.com.

One of the principles of my approach is that people’s likelihood to follow advice is often based on when they receive the advice. It is possible that the trauma of the arrest, combined with relevant advice from their attorney, plus the possibility that following the advice could help their case, will finally get them to make a significant life improvement/change. 

There is a chart that I use to share this concept with clients, and if possible, their families. I first establish the “Life/ Happiness/ Success” line, which shows the moderate ups and downs of everyday life. Then comes the precipitous drop caused by an arrest, which establishes the “awfulness” of the ordeal. 

First, I draw a line that shows the inadequate degree of recovery that is expected by “pessimistic” clients. In other words, pessimistic clients expect the arrest and potential conviction to guarantee that their life will be worse in the future and stay that way in perpetuity. Next, I draw a line that shows what “optimistic” clients think: They can recover and get back to normal. This is where most of my clients think I will conclude my presentation.

However, I continue by drawing a line that goes much higher than the original “Life/Happiness/Success” line—and I emphasize that this is our shared goal—indicating a drastic improvement over their original (pre-arrest) status. The questions for the client then become: What needs to be improved while the case is pending to reach this new level? And how are we going to document the improvements so that I can show them to the prosecutor? 

I understand that not every attorney has the time (or inclination) to send life-coach-type advice to their clients, but at the minimum, all attorneys should make sure that their clients know this important fact: A client’s life accomplishments while the case is pending, if documented, can improve the chances of getting a better result on the case. This message can be communicated in the initial consultation, a subsequent meeting, or described in a paragraph of the legal services agreement. And who knows? Some of your clients will surprise you with what they accomplish.  

There are three important steps toward encouraging your clients to achieve such accomplishments while the case is pending: 

The first step is making sure that each client knows that documented life improvements can affect the outcome of a misdemeanor case. There are no guarantees, but it is likely that at least some of the punishment can be reduced if we can prove to the prosecutor that the accused made some real progress toward an ambitious goal. 

The second step is to encourage (or help) the client identify an ambitious goal. It should impress the prosecutor while also helping the client: getting a GED, applying to college, finding a new job, improving their living situation, starting a business, etc. This strategy is effective because, in general, prosecutors will agree that people working toward an ambitious goal are less likely to be reckless in the future.

The third step is to describe how easy it is to document the progress that is made. Many clients don’t realize that screenshots, photos taken on their phone, receipts, and emails are often sufficient to convince a prosecutor that the progress is legitimate. In other words, the documents don’t have to be original, formal, or notarized in most cases. 

An arrest brings a unique type of pressure. In many cases, our clients have never run up against a system as inflexible as the American justice system. And while some of our clients just retreat into anger and cynicism (refusing to cooperate), some accept the reality of their predicament and follow our advice. When we encourage them to reach for a goal that both improves the outcome of their case and helps them lead a more successful and happier life, everybody wins.

News from the Trenches: SR-22 Requirement Confusion

Hello, my name is Jay Freeman. In addition to being a proud affiliate member of the Texas Criminal Defense Lawyers Association, I have spent the last 40 years or so of my life as an insurance agent specializing in the issuance of the Texas SR-22. As a practice, my agency makes it a point to personally speak to every SR-22 client in order to answer any questions they might have. This often puts us in a unique position to identify procedural changes before they become common knowledge. Recently, we have begun to see a greatly enhanced enforcement by the Texas Department of Public Safety of a requirement that has been around for at least 16 years, but was rarely enforced in the past.

If you have a client who has been convicted of a driving-while-license-is-invalid charge, a driving-while-intoxicated charge, or a drug-possession charge, they are required to maintain an SR-22 for two years from the date of the conviction or their driver’s license will be administratively suspended. The authority for this requirement can be found at 37 Texas Administrative Code, § 25.6 (d)(2)(2004). This requirement is mentioned in the Order of Suspension Letter that the Texas Department of Public Safety mails to the client, in addition to being published on the TDPS website and in their Frequently Asked Questions document.

Although this two-year requirement has been around since at least 2004, in the past it was seldom enforced (and then primarily on drug or DWLI cases). Recently there has been a spike in enforcement of this requirement in DWI cases, so it would be prudent to advise your client of its existence and suggest that they maintain the SR-22 for the two years following conviction. In the past, if TDPS determined that a driver was not in compliance with a requirement needed to maintain their driving privileges, they would send the driver a warning letter giving them 21 days to meet that requirement. None of the people we have spoken with have received a warning letter, so apparently that procedure has changed. It now seems that if the Texas Department of Public Safety determines that your client does not have an SR-22 on file, they will immediately suspend the license without any additional notice to your client. My personal suspicion is that this is occurring because if the client’s driver’s license is suspended, they will be required to pay another reinstatement fee to the department before they can legally drive.

Sadly, the lucky people discover that their driver’s license has been suspended while doing something like registering their vehicle or renewing their license. The unfortunate ones find out about the suspension when they get pulled over for some other reason and suddenly find themselves facing an entirely new set of problems ranging from arrest, impoundment, possible revocation of probation, or a driving-while-license-is-invalid charge (which would start the whole two-year requirement all over again).

While the wording in the Administrative Code seems a bit confusing, there is absolutely no confusion as to the intent on the TDPS website or their FAQ page. The information is, however, quite difficult to find–it has been moved three times in just the last few years. From the TDPS homepage, you must first click on the Driver License tab on the left side of the page. Under the Driver Information & Resources section on this page, there is a column titled Suspensions & Reinstatements. There, you click on the Suspension Notifications link. Under the paragraph titled Suspensions & Withdrawals, there are three tabs labeled:

  • Driving While License is Invalid (DWLI) Suspension
  • Alcohol-Related Offences
  • Drug-Related Offences

Each of these three links contain exactly the same wording:

Obtain a Financial Responsibility Insurance Certificate (SR-22) from an authorized insurance company (an SR-22 must be maintained for two years from the date of conviction).

All of these tabs also contain links to the Frequently Asked Questions page, where this requirement is covered in Section 9.

Perhaps the most disturbing aspect to this situation is that it appears that many of the clerks at TDPS are completely unaware of this requirement. I have personally had a clerk argue with me that this requirement does not exist even after I explained that it is clearly stated on the TDPS website. I have also had several clients tell me that a DPS clerk advised them to cancel their SR-22 because it was no longer required after they reinstated their driver’s license, even though they were still within the two-year window on their conviction. I believe that part of this confusion is due to the way a driver’s status is displayed on the DPS website. For example, if a driver is required to maintain an SR-22 and has the form on file with DPS, the website will show that there are no requirements (while it should show that the requirement has been met). This leads the driver to the false conclusion that they have met all areas of compliance, so they cancel the SR-22. But then the requirement pops back up on their status again and their license is suspended. If your client’s license is suspended solely under this requirement, they will not need to obtain another Occupational Driver license; they will be able to reinstate their license by filing the SR-22 and paying any required fees to the department.

Because very few people at the Department of Public Safety seem to be aware that this situation is even occurring, it is impossible at this point to determine how many drivers are being affected. What I can say with complete confidence is this: Two years ago we very rarely dealt with clients needing an SR-22 to meet this two-year requirement, while today we are seeing it on a weekly (if not daily) basis. And we are only one of the many SR-22 providers in Texas. My fear is that somewhere in the future, DPS might follow the same path in these cases as they did a few years ago with those people convicted in drug-possession cases. They contacted those who had received and pled to traffic violations during the period of suspension following their drug conviction and assessed the surcharges and penalties for DWLI.

In conclusion, my suggestion at this point is to at least make your clients aware of this requirement and explain to them the seriousness of a DWLI charge. One of the common statements we hear from our SR-22 clients in this situation is: “Why didn’t my attorney warn me about this?”

Author’s Note:

While on the subject of SR-22s, I recently wrote an article titled “A Consumer’s Guide to the Texas SR-22.” This is not an advertisement for myself or my company; it is simply a guide to assist those clients in need of an SR-22 and give them the tools to make the proper decisions for their unique circumstance. The guide is divided into five parts:

  • What is a Texas SR-22 and why do I need it?
  • Should I tell my insurance company about the SR-22?
  • I don’t want to get the SR-22 from my company, now what do I do?
  • Will my insurance company know about the SR-22?
  • Should I get the SR-22 through the State Pool?

Many of my friends have made this guide part of their client packets and if you would like to see it, I will be happy to send you a copy. Just drop me a line to and I’ll get one to you.

Jury Selection in Sexual Assault Cases

I. Introduction

There is a certain stigma that permeates sexual assault allegations.  It’s an undefinable icky-ness factor.  This is amongst the few categories of criminal allegations that even some criminal defense lawyers won’t touch.  We all know, though, that not every sexual assault allegation is true and not every accused person is found guilty.  The question, then, is how can we overcome the inherent stigma in sexual assault cases? It starts early.  It starts with framing the issue of the case correctly.  It starts with jury selection.

II. First Things First: The Law

Before any strategic discussion of jury selection particular to a sexual assault case can occur, it is imperative that we be familiar with the law governing jury selection, in general.  Chapter 35 of the Code of Criminal Procedure governs jury selection.   While it is prudent to read the whole chapter, the following articles are the most noteworthy:

A. Excuses – CCP 35.03

Sec. 1.  Except as provided by Sections 2 and 3 of this article, the court shall then hear and determine excuses offered for not serving as a juror, including any claim of an exemption or a lack of qualification, and if the court considers the excuse sufficient, the court shall discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court, as appropriate.

Sec. 2.  Under a plan approved by the commissioners court of the county in the same manner as a plan is approved for jury selection under Section 62.011, Government Code, in a case other than a capital felony case, the court’s designee may hear and determine an excuse offered for not serving as a juror, including any claim of an exemption or a lack of qualification.  The court’s designee may discharge the prospective juror or postpone the prospective juror’s service to a date specified by the court’s designee, as appropriate, if:

(1)  the court’s designee considers the excuse sufficient;  and

(2)  the juror submits to the court’s designee a statement of the ground of the exemption or lack of qualification or other excuse.

Sec. 3. A court or a court’s designee may discharge a juror or postpone the juror’s service on the basis of the juror’s observation of a religious holy day or religious beliefs only if the juror provides an affidavit as required by Article 29.012(c) of this code.

B. Excused by Consent – CCP 35.05

One summoned upon a special venire may by consent of both parties be excused from attendance by the court at any time before he is impaneled.

C. Number of Challenges – CCP 35.15

(a)  In capital cases in which the State seeks the death penalty both the State and defendant shall be entitled to fifteen peremptory challenges.  Where two or more defendants are tried together, the State shall be entitled to eight peremptory challenges for each defendant;  and each defendant shall be entitled to eight peremptory challenges.

(b) In non-capital felony cases and in capital cases in which the State does not seek the death penalty, the State and defendant shall each be entitled to ten peremptory challenges.  If two or more defendants are tried together each defendant shall be entitled to six peremptory challenges and the State to six for each defendant.

(c) The State and the defendant shall each be entitled to five peremptory challenges in a misdemeanor tried in the district court and to three in the county court, or county court at law.  If two or more defendants are tried together, each defendant shall be entitled to three such challenges and the State to three for each defendant in either court.

(d) The State and the defendant shall each be entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impaneled and two peremptory challenges if three or four alternate jurors are to be impaneled.  The additional peremptory challenges provided by this subsection may be used against an alternate juror only, and the other peremptory challenges allowed by law may not be used against an alternate juror.

D. Reasons for Challenge for Cause – CCP 35.16

(a)  A challenge for cause is an objection made to a particular juror, alleging some fact which renders the juror incapable or unfit to serve on the jury.  A challenge for cause may be made by either the state or the defense for any one of the following reasons:

    1. That the juror is not a qualified voter in the state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;
    2. That the juror has been convicted of misdemeanor theft or a felony;
    3. That the juror is under indictment or other legal accusation for misdemeanor theft or a felony;
    4. That the juror is insane;
    5. That the juror has such defect in the organs of feeling or hearing, or such bodily or mental defect or disease as to render the juror unfit for jury service, or that the juror is legally blind and the court in its discretion is not satisfied that the juror is fit for jury service in that particular case;
    6. That the juror is a witness in the case;
    7. That the juror served on the grand jury which found the indictment;
    8. That the juror served on a petit jury in a former trial of the same case;
    9. That the juror has a bias or prejudice in favor of or against the defendant;
    10. That from hearsay, or otherwise, there is established in the mind of the juror such a conclusion as to the guilt or innocence of the defendant as would influence the juror in finding a verdict. To ascertain whether this cause of challenge exists, the juror shall first be asked whether, in the juror’s opinion, the conclusion so established will influence the juror’s verdict.  If the juror answers in the affirmative, the juror shall be discharged without further interrogation by either party or the court.  If the juror answers in the negative, the juror shall be further examined as to how the juror’s conclusion was formed, and the extent to which it will affect the juror’s action; and, if it appears to have been formed from reading newspaper accounts, communications, statements or reports or mere rumor or hearsay, and if the juror states that the juror feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that the juror is impartial and will render such verdict, may, in its discretion, admit the juror as competent to serve in such case.  If the court, in its discretion, is not satisfied that the juror is impartial, the juror shall be discharged;
    11. That the juror cannot read or write.

No juror shall be impaneled when it appears that the juror is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent.  All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist.

In this subsection “legally blind” shall mean having not more than 20/200 of visual acuity in the better eye with correcting lenses, or visual acuity greater than 20/200 but with a limitation in the field of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees.

(b) A challenge for cause may be made by the State for any of the following reasons:

    1. That the juror has conscientious scruples in regard to the infliction of the punishment of death for crime, in a capital case, where the State is seeking the death penalty;
    2. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the defendant; and
    3. That he has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.

(c) A challenge for cause may be made by the defense for any of the following reasons:

    1. That he is related within the third degree of consanguinity or affinity, as determined under Chapter 573, Government Code, to the person injured by the commission of the offense, or to any prosecutor in the case; and
    2. That he has a bias or prejudice against any of the law applicable to the case upon which the defense is entitled to rely, either as a defense to some phase of the offense for which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefore.

Be careful about using a peremptory strike outside of the strike zone, as a defendant who does so may not then complain about the harm of a juror within the strike zone who could have been removed instead.  Comeaux v. State, 445 S.W.3d 745, 752 (Tex. Crim. App. 2014). 

“To preserve error for a trial court’s denial of a valid challenge for cause, it must be demonstrated on the record that [defendant] asserted a clear and specific challenge for cause, that he used a peremptory challenge on that juror, that all his peremptory challenges were exhausted, that his request for additional strikes was denied, and that an objectionable juror sat on the jury.”  Green v. State, 934 S.W.2d 92, 105 (Tex. Crim. App. 1996); Sells v. State, 121 S.W.3d 748, 758 (Tex. Crim. App. 2003).  The procedure for preserving error on challenges for cause during the selection of an alternate juror should be the same.  See Cooks v. State, 844 S.W. 2d 697, 721 (Tex. Crim. App. 1992).  The erroneous excusing of a venire-member will call for reversal only if the record shows that the error deprived the defendant of an unlawfully constituted jury.  Jones v. State, 982 S.W.2d 386, 394 (Tex. Crim. App. 1998).  To say this is exceedingly difficult to do is a huge understatement.

Before a potential juror may be excused on the basis of bias or prejudice, the law must be explained to them, and they must be asked whether they can follow that law regardless of their own personal views.  See Thomas v. State, 470 S.W.3d 577, 594 (Tex. App. – Houston [1st Dist.] 2015, aff’d, 505 S.W.3d 916 (Tex. Crim. App. 2016).

E. Absolute Disqualification – CCP 35.19

No juror shall be impaneled when it appears that he is subject to the second, third or fourth cause of challenge in Article 35.16, though both parties may consent.

“The list of enumerated reasons in the statute are not exclusive…and a prospective juror may be successfully challenged if the facts show that the juror is incapable or unfit to serve on the jury.  A juror’s failure to truthfully answer questions put to him by the court may support a challenge for cause.”  Matthews v. State, 960 S.W.2d 750, 753 (Tex. App. – Tyler 1997, no pet.).

III. Starting Early: Getting the Story

You can’t properly pick a jury in a sexual assault case without knowing your client.  While there are some aspects of the law and sexual assault cases that will exist in every case, jury selection in sexual assault cases should be tailored to the particular facts and issues of the case, and to your client.  So, preparing for jury selection in a sexual assault case starts the minute we first meet the client.  As we listen to the client’s story, we need to begin thinking about the questions a juror would have so that we can be fully prepared to answer these questions later in the arena of the courtroom.

The very first thing defense counsel should do is interview the client and get the story.  Find out who the witnesses are.  Begin a timeline.  Find out what (explicit or implicit) admissions or denials the client may have made to law enforcement or anyone else.  Regardless of what admissions your client may have already made to law enforcement or others, we still have a duty to get the full story from the client and should.  Getting the story from your client will also help you develop a list of witnesses.  It is important to get the full story from your client, not just what happened in the minutes preceding the allegation.  Who had been with or seen the client or accuser that day?  In the days before?  In all probability, law enforcement will not have talked to all the important witnesses in the case.  Likewise, law enforcement may not have seen all the communications between the client and the accuser.  Often, there is useful information in reviewing all the messages and/or posts available.  What is the relationship between the client and the accuser? Attention to these questions, at the very least, lets you know and prepare for any traps ahead. Additionally, it might bring possible defenses to light.

The key is this: think early on about topics for jury selection.  While there are topics of discussion that apply in every jury selection, no jury selection should be “canned.”  This is even more true for sexual assault cases.

IV. Practical Considerations

In any discussion about jury selection, it is important to take into account certain practical considerations.  For example:

  • How does the judge handle challenges for cause? Does the judge require challenges to be made during voir dire at the time the challenge arises (which is really awkward but can often end up being beneficial) or are all challenges taken up at the end of voir dire outside the presence of the jury? 
  • Is the courtroom equipped with technology necessary for your devices? Do you know how to use the technology available in the courtroom?
  • Will the judge allow questionnaires and/or do you want to use a questionnaire?
  • Does the judge intend on seating an alternate juror?
  • Will the judge impose any sort of time limit on jury selection? A note here: Sometimes there is discussion about judges impermissibly restricting jury selection.  While judges cannot impermissibly restrict jury selection, this type of error is reviewed for abuse of discretion.  Unless you are trying the case for appeal and/or you are absolutely certain you can preserve error correctly and get the case reversed for impermissibly restrictive jury selection, prepare to operate at least generally within any time limits imposed by the trial court.   

V. First Impressions

Before stepping into the courtroom to pick a jury in sexual assault case, or any case for that matter, understand and appreciate that everyone makes first impressions, whether calculated or unintentionally, and we at the defense table are being judged and sized up from the start.  It’s hard to shake a first impression but it can be done.

Here’s where it’s worth it to have a female on the team of lawyers.  Often, the accused in sexual assault cases are males and the complainants are females.  From an amateur psychology point of view, this author has observed that if jurors see a female defense lawyer genuinely getting along with the accused and advocating for the accused it makes him more likeable and acceptable, and any defense more palatable.  Regardless of whether there is female lawyer on the team, be acutely aware of your body language and interactions with the accused.  They are being scrutinized throughout and are as important as most evidence in the case.

VI. No One is For It

No one is “for” sexual assault or any criminal offense. It seems such an obvious thing that it shouldn’t even have to be said, but I find it’s worth saying and it’s worth saying in almost every kind of case – especially sexual assault cases.  We are living in the #MeToo Movement.  First thing, let the jury panel know that no one at the defense table – not me, not co-counsel, not our client – no one is supportive of, or okay with, sexual assault.  It’s an obvious thing but the jury must be reminded and explicitly told especially after the State’s voir dire.  Tell the potential jurors that sexual assault allegations should always be taken seriously and investigated thoroughly.  However, when the evidence just isn’t there, or when it’s clear a sexual assault did not occur, the case should stop, and the accused should be cleared.  That’s why we are here.  Because client didn’t sexually assault the complainant.

VII. Embrace the Bad Answers

Prepare to hear bad answers.  And by bad answers, I mean really bad answers—hateful, spontaneous comments.  It’s a sexual assault trial after all.  As much as some of potential jurors’ comments may make us cringe, remember the comment is from a potential juror.  Take the comment or question as a gift.  First, thank the potential juror for being honest.  Second, make sure you question the potential juror (presumably about a bias or prejudice) so that they are properly challengeable for cause pursuant to Article 35.16(a)(10) of the Code of Criminal Procedure.  See supra.  Then, and most importantly, find out if there are other potential jurors who agree with the (outrageous) comment and challenge those jurors for cause, too.  The bad answers are gifts.  Thankfully, in a group of +/-70 there is usually another potential juror who will come to your rescue.  If not, once you have identified and challenged all those unfavorable jurors, be prepared to pivot to another issue.

And importantly, prepare your client before jury selection that there will be bad, hateful comments made during the course of jury selection.  Explain to your client that it is vitally important that you hear these comments and get these potential jurors excluded.  Better they speak up than be sleeping lions on the jury.

VIII. Theme Begins Here

It is imperative that the theme of the case be woven seamlessly throughout the trial beginning in jury selection.  Whether it’s a false allegation, a revenge allegation, or a bad investigation, the theme of your case should be apparent in jury selection through your statements and questions.  This is where we first frame the issue for the jury. 

For instance, the first question to reframe the issue after an hour of the State’s presentation could be “how does an innocent man get accused of sexual assault?”  There may be silence for a few seconds.  Do not be afraid of the silence.  In a room of 70, someone will speak.  Someone will come up with a real answer to that question.  Then, loop that answer until the steam runs out.  After all, our client is the innocent man.  Then, in discussing the Fifth Amendment, perhaps ask “why might an innocent person decide not to testify?”  Consider also asking: “how would an innocent person respond to an allegation of sexual assault?”  Make the theme clear and carry it throughout jury selection.

IX. Answering the “Why” Question

In any sexual assault case—particularly child sexual assault cases—answering the “why” question is always an issue even though it’s a question that will never appear in the court’s charge to the jury.  Why would a complainant make up an allegation of sexual assault against the client?  It must be answered satisfactorily to win in a sexual assault case.  Sometimes that’s an easy question to answer based on the evidence; sometimes it’s not quite so easy.  However, it is always a good idea to ask the jury panel why a complainant—child or adult—would make an allegation of sexual assault that wasn’t true.  Sometimes, the panel will give you something you hadn’t thought of before.  Most often, though, the panel will hit on your theme.  When it’s an idea from another juror rather than the defense lawyer, it’s more readily accepted.  And, if the juror uses wording that’s a little different than what you have prepared in opening or questioning, rephrase to parrot the juror’s words back.  Even if the potential juror doesn’t end up serving on the jury, the other jurors will recall that another of their own had come up with that reason therefore it must be reasonable.  Make sure you ask the panel the “why” question.

X. Talking about Particulars

It’s easy to get caught up in the legalese of these kinds of cases.  However, it’s important to remember what happens in real life.  It’s important to reflect on your own experiences and those of your friends and family to have any barometer on what happens in real life.  Understand, whether they speak about them or not, as they evaluate evidence, jurors will recall their own personal experiences. 

For instance, if you know that the now-seventeen-year-old complainant will testify that she has been sexually abused since she was 12 years old and she has never before told anyone, it is important to ask the panel about teenage girls.  Draw on your own observations and personal experience to think of questions.  Do they [young teenage girls] talk to each other?  What do they talk to each other about?  Do they talk about personal things?  Are they exposed to sex at school, on the internet, in song lyrics, and on TV?  Do they talk with other teenagers about sexual experiences? 

Or, in a delayed outcry of sexual assault in young adults, what’s it like to be in love so young?  Is it an all-consuming, jealous kind of relationship?  Has anyone ever had a bad break up or know of anyone who has?  The last part of the question is important because a juror may not want to self-disclose but might want to talk about the experience.  Has anyone ever been ashamed of something they have done or how they have acted when they were a teenager?      

XI. Evidence

Prepare the jury for the insanity of circular reasoning that will inevitably occur when the SANE testifies.  Sexual assault by history means that sexual assault occurred regardless of any physical findings.  Both the presence and absence of medical findings indicate sexual abuse when there is sexual abuse by history.  Ask the jurors why type of physical evidence they would expect to see in a sexual assault case.  The panel will give you answers.  They will expect to see something.  Perhaps someone will say that there may be no physical findings. 

XII. Impact of the Blasey-Ford and Kavanaugh Hearings

Many who watched the questioning of now Supreme Court Justice Brett Kavanaugh were disgusted by what they saw and heard. Regardless, something very good happened for defense lawyers in sexual assault cases as a result of those very public hearings.  Anytime someone is acquitted of sexual assault—in a courtroom or in the media—it reminds the public that false allegations of sexual assault do occur.  It reminds the public—especially in the he-said-she-said cases—why the presumption of innocence is so important.  The accused is not required to prove that he or she did not engage in wrongdoing; in most cases it’s impossible to do.  And, more is required to condemn than just a bare allegation, albeit one that is emotional.  That’s certainly helpful to defense lawyers, and the Kavanaugh confirmation hearings brought that conversation to the forefront in a very public way.

XIII. Understand We Have the Edge, Then Listen and Be Prepared to Respond

We always lament that the State gets to go first and last in closing arguments.  However, we have the distinct advantage in both jury selection and opening statement.  We get to go last; we have the last word.  And we should capitalize on this opportunity.  These are early opportunities that shape the course of the trial.  Confirmation bias is a real phenomenon (?) in psychology and cognitive science.  Confirmation bias is the tendency to search for or interpret information in a way that conforms to, and confirms, one’s preconceptions.  In trials, we often accuse law enforcement of engaging in confirmation bias or tunnel vision.  Let’s not forget that, despite our best efforts, we all engage in confirmation bias.  That means jurors do, too.  The more compelling presentation or story, the more likely jurors are to accept it and thereafter subconsciously interpret evidence that confirms the story, while ignoring or rejecting evidence that casts doubt on it.  That’s why it is vital to make the better jury selection presentation and better opening statement.

Also, while it is imperative that we be focused on our theme and presentation and even remembering the names of the potential jurors, it is even more important to listen when the State gives its presentation.  It’s obvious (but not so easy) that we should listen – really listen – to the answers from potential jurors.  It’s often more difficult to listen to what the State says.  It can be easy to tune them out and focus on and refine our own presentations during that 45 minutes or so.  However, to do so misses a prime opportunity.  We should listen to the State and object when required, of course (i.e., commitment questions, etc.).  But we should also be listening for things the State says that we can use later.  Then, we must respond whether in jury selection, opening, questioning, or closing to what the State has said during voir dire.  For instance, when the State uses the CSI example (trials aren’t like CSI; we don’t have the capabilities they have on CSI) to water down jury expectations, we can directly respond to that in jury selection and throughout trial about a real discussion about what evidence is available or would be available if the accusation were true.

XIV. Conclusion

Sexual assault cases are some of the most challenging and time-consuming cases.  They are also some of the most daunting.  But when you start early and frame the issue correctly, jury selection can set the stage for a successful result.

Health and Safety Code Chapter 81

Chapter 81 of the Health and Safety Code is not a common reference in many of our daily practices.  Most of us have never had the occasion to read the Communicable Disease Prevention and Control Act before. However, amid this pandemic, it is worth knowing and reviewing Chapter 81.  Here are a few sections to know:

Sec. 81.002.  RESPONSIBILITY OF STATE AND PUBLIC.  The state has a duty to protect the public health.  Each person shall act responsibly to prevent and control communicable disease.

Sec. 81.003

(1) “Communicable disease” means an illness that occurs through the transmission of an infectious agent or its toxic products from a reservoir to a susceptible host, either directly, as from an infected person or animal, or indirectly through an intermediate plant or animal host, a vector, or the inanimate environment.

(1-a)  “Emergency response employee or volunteer” means an individual acting in the course and scope of employment or service as a volunteer as emergency medical service personnel, a peace officer, a detention officer, a county jailer, or a fire fighter.

(1-b)  “Designated infection control officer” means the person serving as an entity’s designated infection control officer under Section 81.012.

(2)  “Health authority” means:

(A)  a physician appointed as a health authority under Chapter 121 (Local Public Health Reorganization Act) or the health authority’s designee;  or

(B)  a physician appointed as a regional director under Chapter 121 (Local Public Health Reorganization Act) who performs the duties of a health authority or the regional director’s designee.

(7)  “Public health disaster” means:

(A)  a declaration by the governor of a state of disaster;  and

(B)  a determination by the commissioner that there exists an immediate threat from a communicable disease that:

(i)  poses a high risk of death or serious long-term disability to a large number of people;  and

(ii)  creates a substantial risk of public exposure because of the disease’s high level of contagion or the method by which the disease is transmitted.

Sec. 81.021.  PROTECTION OF PUBLIC HEALTH.  The executive commissioner and department shall exercise their powers in matters relating to protecting the public health to prevent the introduction of disease into the state.

Sec. 81.081.  DEPARTMENT’S DUTY.  The department shall impose control measures to prevent the spread of disease in the exercise of its power to protect the public health.

Tex. Health & Safety Code § 81.085.  AREA QUARANTINE;  CRIMINAL PENALTY. 

(a)  If an outbreak of communicable disease occurs in this state, the commissioner or one or more health authorities may impose an area quarantine coextensive with the area affected.  The commissioner may impose an area quarantine, if the commissioner has reasonable cause to believe that individuals or property in the area may be infected or contaminated with a communicable disease, for the period necessary to determine whether an outbreak of communicable disease has occurred.  A health authority may impose the quarantine only within the boundaries of the health authority’s jurisdiction.

(b)  A health authority may not impose an area quarantine until the authority consults with the department.  A health authority that imposes an area quarantine shall give written notice to and shall consult with the governing body of each county and municipality in the health authority’s jurisdiction that has territory in the affected area as soon as practicable.

(c)  The department may impose additional disease control measures in a quarantine area that the department considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.  Absent preemptive action by the department under this chapter or by the governor under Chapter 418, Government Code (Texas Disaster Act of 1975), a health authority may impose in a quarantine area under the authority’s jurisdiction additional disease control measures that the health authority considers necessary and most appropriate to arrest, control, and eradicate the threat to the public health.

(d)  If an affected area includes territory in an adjacent state, the department may enter into cooperative agreements with the appropriate officials or agencies of that state to:

(1)  exchange morbidity, mortality, and other technical information;

(2)  receive extrajurisdictional inspection reports;

(3)  coordinate disease control measures;

(4)  disseminate instructions to the population of the area, operators of interstate private or common carriers, and private vehicles in transit across state borders;  and

(5)  participate in other public health activities appropriate to arrest, control, and eradicate the threat to the public health.

(e)  The department or health authority may use all reasonable means of communication to inform persons in the quarantine area of the department’s or health authority’s orders and instructions during the period of area quarantine.  The department or health authority shall publish at least once each week during the area quarantine period, in a newspaper of general circulation in the area, a notice of the orders or instructions in force with a brief explanation of their meaning and effect.  Notice by publication is sufficient to inform persons in the area of their rights, duties, and obligations under the orders or instructions.

(f)  The department or, with the department’s consent, a health authority may terminate an area quarantine.

(g)  To provide isolation and quarantine facilities during an area quarantine, the commissioner’s court of a county, the governing body of a municipality, or the governing body of a hospital district may suspend the admission of patients desiring admission for elective care and treatment, except for needy or indigent residents for whom the county, municipality, or district is constitutionally or statutorily required to care.

(h)  A person commits an offense if the person knowingly fails or refuses to obey a rule, order, or instruction of the department or an order or instruction of a health authority issued under a department rule and published during an area quarantine under this section.  An offense under this subsection is a felony of the third degree.

(i)  On request of the department during a public health disaster, an individual shall disclose the individual’s immunization information.  If the individual does not have updated or appropriate immunizations, the department may take appropriate action during a quarantine to protect that individual and the public from the communicable disease.

(j)  A peace officer, including a sheriff or constable, may use reasonable force to:

(1)  secure a quarantine area; and

(2)  except as directed by the department or health authority, prevent an individual from entering or leaving the quarantine area.

SUBCHAPTER G. COURT ORDERS FOR MANAGEMENT OF PERSONS WITH COMMUNICABLE DISEASES

Sec. 81.161.  MOTION FOR ORDER OF PROTECTIVE CUSTODY.

(a)  A motion for an order of protective custody may be filed only in the court in which an application for a court order for the management of a person with a communicable disease is pending.

(b)  The motion may be filed by the municipal, county, or district attorney on behalf of the health authority.  The motion shall be filed by the attorney general at the request of the department.

(c)  The motion must state that:

(1)  the department or health authority has reason to believe and does believe that the person meets the criteria authorizing the court to order protective custody;  and

(2)  the belief is derived from:

(A)  the representations of a credible person;

(B)  the conduct of the person who is the subject of the motion;  or

(C)  the circumstances under which the person is found.

(d)  The motion must be accompanied by an affidavit of medical evaluation.

(e)  The judge of the court in which the application is pending may designate a magistrate to issue protective custody orders in the judge’s absence.

Sec. 81.162.  ISSUANCE OF ORDER.

(a)  The judge or designated magistrate may issue a protective custody order if the judge or magistrate determines:

(1)  that the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health;  and

(2)  that the person fails or refuses to comply with the written orders of the health authority or the department under Section 81.083, if applicable.

(b)  Noncompliance with orders issued under Section 81.083 may be demonstrated by the person’s behavior to the extent that the person cannot remain at liberty.

(c)  The judge or magistrate may consider only the application and affidavit in making a determination that the person meets the criteria prescribed by Subsection (a). If only the application and certificate are considered the judge or magistrate must determine that the conclusions of the health authority or department are adequately supported by the information provided.

(d)  The judge or magistrate may take additional evidence if a fair determination of the matter cannot be made from consideration of the application and affidavit only.

(e)  The judge or magistrate may issue a protective custody order for a person who is charged with a criminal offense if the person meets the requirements of this section and the head of the facility designated to detain the person agrees to the detention.

(f)  Notwithstanding Section 81.161 or Subsection (c), a judge or magistrate may issue a temporary protective custody order before the filing of an application for a court order for the management of a person with a communicable disease under Section 81.151 if:

(1)  the judge or magistrate takes testimony that an application under Section 81.151, together with a motion for protective custody under Section 81.161, will be filed with the court on the next business day; and

(2)  the judge or magistrate determines based on evidence taken under Subsection (d) that there is probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the filing of the application and motion.

(g)  A temporary protective custody order issued under Subsection (f) may continue only until 4 p.m. on the first business day after the date the order is issued unless the application for a court order for the management of a person with a communicable disease and a motion for protective custody, as described by Subsection (f)(1), are filed at or before that time.  If the application and motion are filed at or before 4 p.m. on the first business day after the date the order is issued, the temporary protective custody order may continue for the period reasonably necessary for the court to rule on the motion for protective custody.

(h)  The judge or magistrate may direct a peace officer, including a sheriff or constable, to prevent a person who is the subject of a protective custody order from leaving the facility designated to detain the person if the court finds that a threat to the public health exists because the person may attempt to leave the facility.

Sec. 81.163.  APPREHENSION UNDER ORDER.

(a)  A protective custody order shall direct a peace officer, including a sheriff or constable, to take the person who is the subject of the order into protective custody and transport the person immediately to an appropriate inpatient health facility that has been designated by the commissioner as a suitable place.

(b)  If an appropriate inpatient health facility is not available, the person shall be transported to a facility considered suitable by the health authority.

(c)  The person shall be detained in the facility until a hearing is held under Section 81.165.

(d)  A facility must comply with this section only to the extent that the commissioner determines that the facility has sufficient resources to perform the necessary services.

(e)  A person may not be detained in a private health facility without the consent of the head of the facility.

(f)  A protective custody order issued under Section 81.162 may direct an emergency medical services provider to provide an ambulance and staff to immediately transport the person who is the subject of the order to an appropriate inpatient health facility designated by the order or other suitable facility.  The provider may seek reimbursement for the costs of the transport from any appropriate source.

Sec. 81.164.  APPOINTMENT OF ATTORNEY.

(a)  The judge or designated magistrate shall appoint an attorney to represent a person who is the subject of a protective custody order who does not have an attorney when the order is signed.

(b)  Within a reasonable time before a hearing is held under Section 81.165, the court that ordered the protective custody shall provide the person and the person’s attorney with a written notice that states:

(1)  that the person has been placed under a protective custody order;

(2)  the grounds for the order;  and

(3)  the time and place of the hearing to determine probable cause.

Sec. 81.165.  PROBABLE CAUSE HEARING.

(a)  A hearing must be held to determine if:

(1)  there is probable cause to believe that a person under a protective custody order presents a substantial risk of serious harm to himself or others to the extent that the person cannot be at liberty pending the hearing on a court order for the management of a person with a communicable disease;  and

(2)  the health authority or department has stated its opinion and the detailed basis for its opinion that the person is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to public health.

(b)  The hearing must be held not later than 72 hours after the time that the person was detained under the protective custody order.  If the period ends on a Saturday, Sunday, or legal holiday, the hearing must be held on the next day that is not a Saturday, Sunday, or legal holiday.  The judge or magistrate may postpone the hearing for an additional 24 hours if the judge or magistrate declares that an extreme emergency exists because of extremely hazardous weather conditions that threaten the safety of the person or another essential party to the hearing.  If the area in which the person is found, or the area where the hearing will be held, is under a public health disaster, the judge or magistrate may postpone the hearing until the period of disaster is ended.

(c)  A magistrate or a master appointed by the presiding judge shall conduct the hearing.  The master is entitled to reasonable compensation.

(d)  The person and his attorney shall have an opportunity at the hearing to appear and present evidence to challenge the allegation that the person presents a substantial risk of serious harm to himself or others.  If the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a magistrate or a master may order that a person entitled to a hearing for a protective custody order may not appear in person and may appear only by teleconference or another means the magistrate or master finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.

(e)  The magistrate or master may consider evidence that may not be admissible or sufficient in a subsequent commitment hearing, including letters, affidavits, and other material.

(f)  The state may prove its case on the health authority’s or department’s affidavit of medical evaluation filed in support of the initial motion.

Sec. 81.166. ORDER FOR CONTINUED DETENTION.

(a)  The magistrate or master shall order that a person remain in protective custody if the magistrate or master determines after the hearing that an adequate factual basis exists for probable cause to believe that the person presents a substantial risk of serious harm to himself or others to the extent that the person cannot remain at liberty pending the hearing on the application.

(b)  The magistrate or master shall arrange for the person to be returned to the health facility or other suitable place, along with copies of the affidavits and other material submitted as evidence in the hearing and the notification prepared as prescribed by Subsection (d).

(c)  A copy of the notification of probable cause hearing and the supporting evidence shall be filed with the district court that entered the original order of protective custody.

(d)  The notification of probable cause hearing shall read as follows:

(Style of Case)

NOTIFICATION OF PROBABLE CAUSE HEARING

On this the _____ day of _________________, 20__, the undersigned hearing officer heard evidence concerning the need for protective custody of ___________ (hereinafter referred to as proposed patient).  The proposed patient was given the opportunity to challenge the allegations that the proposed patient presents a substantial risk of serious harm to self or others.

The proposed patient and the proposed patient’s attorney _________________________ have been given written notice that the proposed patient was placed under an order of protective custody and the reasons for such order on ___________ (date of notice).

I have examined the affidavit of medical evaluation and ________________ (other evidence considered).  Based on this evidence, I find that there is probable cause to believe that the proposed patient presents a substantial risk of serious harm to self (yes ____ or no ____) or others (yes ____ or no ____) such that the proposed patient cannot be at liberty pending final hearing because the proposed patient is infected with or is reasonably suspected of being infected with a communicable disease that presents an immediate threat to the public health and the proposed patient has failed or refused to comply with the orders of the health authority or the Department of State Health Services delivered on __________ (date of service) ____________.

Sec. 81.167.  DETENTION IN PROTECTIVE CUSTODY.

(a)  The head of a facility or the facility head’s designee shall detain a person under a protective custody order in the facility pending a court order for the management of a person with a communicable disease or until the person is released or discharged under Section 81.168.

(b)  A person under a protective custody order shall be detained in an appropriate inpatient health facility that has been designated by the commissioner or by a health authority and selected by the health authority under Section 81.159.

(c)  A person under a protective custody order may be detained in a nonmedical facility used to detain persons who are charged with or convicted of a crime only with the consent of the medical director of the facility and only if the facility has respiratory isolation capability for airborne communicable diseases.  The person may not be detained in a nonmedical facility under this subsection for longer than 72 hours, excluding Saturdays, Sundays, legal holidays, the period prescribed by Section 81.165(b) for an extreme weather emergency, and the duration of a public health disaster.  The person must be isolated from any person who is charged with or convicted of a crime.

(d)  The health authority shall ensure that proper isolation methods are used and medical care is made available to a person who is detained in a nonmedical facility under Subsection (c).

Sec. 81.168.  RELEASE FROM DETENTION.

(a)  The magistrate or master shall order the release of a person under a protective custody order if the magistrate or master determines after the hearing under Section 81.165 that no probable cause exists to believe that the person presents a substantial risk of serious harm to himself or others.

Sec. 81.169.  GENERAL PROVISIONS RELATING TO HEARING.

(a)  Except as provided by Subsection (b), the judge may hold a hearing on an application for a court order for the management of a person with a communicable disease at any suitable location in the county.  The hearing should be held in a physical setting that is not likely to have a harmful effect on the public or the person.

(b)  On the request of the person or the person’s attorney, the hearing on the application shall be held in the county courthouse.

(c)  The health authority shall advise the court on appropriate control measures to prevent the transmission of the communicable disease alleged in the application.

(d)  The person is entitled to be present at the hearing.  The person or the person’s attorney may waive this right.

(e)  The hearing must be open to the public unless the person or the person’s attorney requests that the hearing be closed and the judge determines that there is good cause to close the hearing.

(f)  The Texas Rules of Evidence apply to the hearing unless the rules are inconsistent with this chapter.

(g)  The court may consider the testimony of a nonphysician health professional in addition to medical testimony.

(h)  The hearing is on the record, and the state must prove each element of the application criteria by clear and convincing evidence.

(i)  Notwithstanding Subsection (d), if the health authority advises the court that the person must remain in isolation or quarantine and that exposure to the judge, jurors, or the public would jeopardize the health and safety of those persons and the public health, a judge may order that a person entitled to a hearing may not appear in person and may appear only by teleconference or another means that the judge finds appropriate to allow the person to speak, to interact with witnesses, and to confer with the person’s attorney.

Sec. 81.170.  RIGHT TO JURY.

(a)  A hearing for temporary management must be before the court unless the person or the person’s attorney requests a jury.

(b)  A hearing for extended management must be before a jury unless the person or the person’s attorney waives the right to a jury.

(c)  A waiver of the right to a jury must be in writing, under oath, and signed by the person and the person’s attorney.

(d)  The court may permit a waiver of the right to a jury to be withdrawn for good cause shown.  The withdrawal must be made at least seven days before the date on which the hearing is scheduled.

(e)  A court may not require a jury fee.

(f)  The jury shall determine if the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has refused or failed to follow the orders of the health authority.  The jury may not make a finding about the type of services to be provided to the person.

Sec. 81.171.  RELEASE AFTER HEARING.

(a)  The court shall enter an order denying an application for a court order for temporary or extended management if after a hearing the judge or jury fails to find, from clear and convincing evidence, that the person:

(1)  is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health;

(2)  has refused or failed to follow the orders of the health authority if the application is for inpatient treatment;  and

(3)  meets the applicable criteria for orders for the management of a person with a communicable disease.

(b)  If the court denies the application, the court shall order the immediate release of a person who is not at liberty.

Sec. 81.172.  ORDER FOR TEMPORARY MANAGEMENT.

(a)  The judge or jury may determine that a person requires court-ordered examination, observation, isolation, or treatment only if the judge or jury finds, from clear and convincing evidence, that:

(1)  the person is infected with or is reasonably suspected of being infected with a communicable disease that presents a threat to the public health and, if the application is for inpatient treatment, has failed or refused to follow the orders of the health authority or department;  and

(2)  as a result of the communicable disease the person:

(A)  is likely to cause serious harm to himself;  or

(B)  will, if not examined, observed, isolated, or treated, continue to endanger public health.

(b)  The judge or jury must specify each criterion listed in Subsection (a)(2) that forms the basis for the decision.

(c)  The person or the person’s attorney, by a written document filed with the court, may waive the right to cross-examine witnesses, and the court may admit, as evidence, the affidavit of medical evaluation.  The affidavit admitted under this subsection constitutes competent medical testimony, and the court may make its findings solely from the affidavit.

(d)  An order for temporary management shall state that examinations, treatment, and surveillance are authorized for a period not longer than 90 days.

(e)  The department, with the cooperation of the head of the facility, shall submit to the court a general program of treatment to be provided.  The program must be submitted not later than the 14th day after the date the order is issued and must be incorporated into the court order.

TCDLA C.A.R.E.S and the Act

One month ago today, I was in Lajitas (Big Bend), having just wrapped up the final CDLP “Champions” seminar, sitting on a porch, listening to Texas country, drinking wine and beer and solving the world’s problems with some of my dearest (TCDLA) friends. One month ago today, my biggest concern was how to fit seven days of work into three, so I could go to a seminar in Austin on Wednesday. COVID-19 was barely a blip on my radar.

Today, I am sitting in my empty office looking over the month’s receivables. Today, I am wondering how long this “shelter in place” is going to last. Today, I am cancelling every subscription I don’t need–just trying to save every little bit of money I can.

If you are like me today, I am worried about those for whom I am responsible. My staff. My family. My staff’s family. They rely on me to pay them so they can put food on the table–so they can have life’s necessities.  That can be overwhelmingly stressful at times, and in particular, right now.

I am here to tell you it doesn’t have to be overwhelming. There is help, and it is called C.A.R.E.S. (Coronavirus Aid, Relief and Economic Security). I have tried to break this down as simply as I can. It is by no means comprehensive, but I hope it is helpful, because I CARE about each of you.

STIMULUS PAYMENTS

  • Single taxpayers with adjusted gross income <$75k (2018 or 2019 tax return) or couples with AGI <$150K will receive a $1,200 payment.
  • That payment will decrease $5 for every $100 AGI up to $99K.
  • $500 per child.
  • You do not have to take any action–the checks will just be sent.

SHORT-TERM FORGIVENESS LOANS

  • $350B allocated to help small businesses (<500 employees).
  • These are “special” SBA loans.
  • May be partially forgiven.
  • You can receive up to 250% of your average monthly payroll.
  • Payroll includes wages/benefits plus rent/mortgage and utilities.
  • Loans may be forgiven if you use it for “payroll.”
  • Will not be treated as taxable income.
  • Loans come from SBA-approved banks, credit unions and lenders.

EMERGENCY GRANTS

  • Up to $10K.
  • Does not have to be repaid.
  • Paid out within three days of applying.
  • Intended for payroll, sick leave and other debt obligations.
  • Apply directly with SBA.
  • ***Can receive grant and forgiveness loans***

PAYROLL TAX CREDIT

  • May qualify for PTC up to $10K per employee.
  • Employees must be paid their wages/benefits during this time.
  • Qualify if you experience 50% decrease in gross receipts from same quarter last year.
  • CANNOT CLAIM PTC AND APPLY FOR SHORT-TERM FORGIVENESS LOAN

STUDENT LOANS

The C.A.R.E.S. Act does not address this; however, you can get up to three months deferred payments (some with and some without interest accrual) on your student loans. You must contact your lender. Let them know you want to defer payments. They cannot report this on your credit report. I contacted mine last Saturday by e-mail. I received notification this past Thursday that I will not owe any payments on my student loan until July.

I look forward to the day I get to go back to Lajitas and sit on that porch with those same TCDLA friends and listen to Hurley tell stories while Snodgrass plays his favorite Texas music, Jay Freeman chimes in with a really bad dad joke every once in a while, and Kerri and I open another bottle of wine.

EVEN FOR THE DESPICABLE AMONG US: Rights and Due Process for Klansmen

The new novel, No Truth Left To Tell (Greenleaf Press 2020), by former federal prosecutor Michael McAuliffe poses important moral and ethical questions for lawyers and lay readers alike. The story, about the feds chasing the Klan in the Deep South, portrays a southern town still grappling with its history of racial violence. The Klan wants to re-ignite a race war, and it targets the town’s minority communities with burning crosses as their first attack. The town of Lynwood, Louisiana, is on edge, with more violence sure to come. Adrien Rush––a young federal civil rights prosecutor from D.C.––is sent to investigate. He teams up with Lee Mercer, a black FBI agent from the local office, who is older and wiser.

Their investigation of the violent racists and how they work with each other despite their differences form the spine of the book. Their journey together is filled with drama, including a difficult, but real friendship that develops between them, and ultimately a great sacrifice for one. The tension between Rush and Mercer mirrors the real-world relationship between prosecutors and investigators. It makes for compelling reading.

The novel is full of other interesting, memorable characters. For example, the book opens with a prologue set in 1920 in which Nettie Wynn, a young black girl, witnesses a lynching of a black man in the town’s central square. The horror of the murderous scene creates the emotional foundation for the novel’s narrative. Readers come to know–and admire–Nettie Wynn as she is reintroduced as an elderly woman of modesty and grace.

The novel’s story is about how America deals with homegrown violent extremism, both in and out of the courtroom. Are the Klan’s actions domestic terrorism? Should the same rules apply to violent extremists as other criminal defendants? These are challenging,  meaningful questions, and the author wraps them inside a story that entertains and challenges at the same time. 

No Truth Left To Tell is a non-political book that forces us to reflect on the choices we’ve made about constitutional rights and due process, especially when those rights are for the despicable among us––that is, the Klansmen. There are chapters about the feds trying to get the Klan’s membership lists with a grand jury subpoena and, more dramatically, how a local detective obtains a confession from the Klan leader. Lawyers (and those trained or working in the law) would no doubt see the constitutional issues that arise from these events.

I could easily see No Truth Left To Tell as a law school “read” because the book is set in the legal world as much as it is in a southern town. The book is a hybrid. It’s a crime thriller carried in bookstores and online, but it’s also a worthy teaching tool for lawyers and students of the law. 

The novel’s author, Michael McAuliffe, is a graduate of the University of Texas at Austin and grew up in Spring, Texas. His connection to Texas is strong as he has immediate family members living in both Byrne and New Braunfels. For more information about the book or the author, you can go to book’s website at https://notruthlefttotell.com.

TCDLA Awards $5,000 Charlie Butts Scholarship to San Antonio Law Student

TCDLA awarded the annual Charlie Butts Memorial Scholarship worth $5,000 to a student at San Antonio’s St. Mary’s School of Law.

The Texas Criminal Defense Lawyers Educational Institute (TCDLEI) administers the Charlie D. Butts Memorial Scholarship every year. The scholarship is named after Charles D. Butts, who practiced as an attorney in Texas for 63 years.

Aaron Diaz has been a student attorney at St. Mary’s since August 2019. He said he applied for the scholarship to alleviate the financial strain law school has put on his wife, Samantha.

“We married the summer before I started law school,” he said. “I was fortunate to start working part-time after my first semester, but we have mostly survived off my wife’s income as a San Antonio city employee.”

Diaz is currently working as a law clerk, but said he will have to leave that position in order to prepare for the Texas Bar exam.

“I’m grateful for the sacrifices my wife has made, but I don’t want to overburden her,” Diaz said. “This scholarship will help ease the burden on her as I study for the Bar exam. I’m very appreciative.”

Cynthia Orr, a San Antonio criminal defense lawyer and partner at Goldstein & Orr, wrote Diaz a letter of recommendation that helped earn him the scholarship. Diaz started at the law firm during his second semester of law school.

“This past summer, Mr. Diaz accompanied me to New Orleans to prepare for oral arguments before the 5th Circuit Court of Appeals,” Orr wrote. “We are most proud that Mr. Diaz’s student comment on the controversial Federal Rule of Evidence 404(b) will be published in Volume 51 of the St. Mary’s Law Journal. We are extremely proud of Mr. Diaz and look forward to welcoming him as a criminal defense lawyer when he graduates next year.”                                                               

Stephanie Stevens, clinical professor of law at St. Mary’s, also wrote Diaz a letter of recommendation.

“Mr. Diaz is always available for his clinic clients, even though he carries a full load of classes and works part-time for Goldstein and Orr,” Stevens said. “He truly takes advantage of every opportunity to prepare to be an excellent defense attorney.”

TCDLEI administers other scholarships:

  1. Kelly Pace Memorial New Lawyer Travel Fund
  2. The Christine S. Cheng, M.D., Memorial Asian-American Scholarship & Travel Fund;
  3. Numerous CLE scholarships given to criminal defense attorneys and public defenders.

TCDLEI awards more than $45,000 a year in scholarships.

These scholarships help ease the cost of travel to attend continuing legal education seminars.

These scholarships are funded in part by private donations but also corporate donations, fundraising, and merchandise sales. All donations to TCDLEI are tax-deductible.

TCDLEI is part of the Texas Criminal Defense Lawyers Association. Charles Butts served as TCDLA’s president in 1987-88. TCDLA sponsors more than 40 CLE seminars a year and boasts a membership of more than 4,000 criminal defense lawyers, public defenders, judges, law professors, paralegals, private investigators, scientists, and mental health professionals.

Discounted memberships are available for new members, public defenders, and law students online at www.TCDLA.com.

If you or someone you know is interested in applying for a TCDLEI scholarship, or if you’re interested in donating, go to www.TCDLA.com and click on the “TCDLEI” tab. Or you can call TCDLA at 512-478-2514.