Weekly Case Summaries: October 2, 2015

Texas Court of Criminal Appeals

Liverman v. State

No. PD-1595-14, PD-1596-14       9/23/15

Issue:

Does a person commit the crime of securing the execution of documents by deception when he files a false mechanic’s lien affidavit with the county clerk?

Holding:

No. The language of the statute requires that the defendant cause “another” to “execute” a document affecting property or pecuniary interests. The county clerk is not actually the person executing the lien when the affidavit is filed; instead it is the person claiming the lien. The defendant is executing the document himself, rather than causing another to do so. Read.

Commentary:

The defendant was prosecuted under Section 32.46(a)(1) of the Penal Code.  It seems that he could have been prosecuted under Section 32.46(a)(2), but it is not clear from the facts that are provided here.  The court uses analysis from the Property Code and its provisions concerning liens to hold that a clerk does not “execute” a lien or its affidavit when it is filed.  So recourse to another statutory provision will have to be utilized in order prosecute this particular defendant’s fraudulent conduct.

Rodriguez v. State

No. PD-0278-14                 9/23/15

Issue:

After the original judge’s voluntary recusal, was the defendant entitled to have the State’s original plea offer reinstated?

Holding:

No. Upon recusal of the trial judge and assignment of the new judge, the case started over from the beginning, and it was as if no plea negotiations had ever occurred. Read.

Commentary:

This is a decision that is very much bound by its complex set of facts.  The bottom line in this case is that the second trial judge was not required to force the State to reoffer the ten-year plea bargain agreement.  She could instead allow the defendant to withdraw his plea of guilty or allow the defendant to accept the new 25-year sentence.  But you will be hard-pressed to apply this decision in future cases.  The facts in your case may very well be differently.  It would be much better to read this case in light of the other case law that is cited in the decision.  Apart from that, Judge Meyers’ opinion for the court is only a plurality opinion.

Texas Courts of Appeals

Penright v. State (1st COA)

No. 01-12-00647-CR        9/29/15

Issue:

Is Local Government Code §133.102(a)(1) constitutional?

Holding:

Yes. There is a statutory system that directs 99.99 percent of the court costs gathered under §133.102 to funds for the administration of the criminal justice system, which is a legitimate criminal justice purpose. Read.

Commentary:

This is a very thorough treatment of several court-cost arguments that have been raised in Texas in the recent past.  The most significant issue in the case—the constitutionality of the controlling statute for consolidated court costs—was essentially controlled by the prior decision of the Court of Criminal Appeals in Peraza v. State.  These arguments may start to dwindle as time goes by, but if you need a decision on this issue, this is a very thorough and well-reasoned treatment of the issue.

State v. Rodriguez (11th COA)

No. 11-13-00277-CR        9/24/15

Issue:

Were police authorized to search a college dorm room where contraband was found, without a warrant or consent?

Holding:

No. Although representatives of the university had authority to enter and search the dorm room, they did not have the authority to grant police access to the room after contraband was discovered. The State was also unable to show any other justification for or attenuation of the taint of the illegal search. Read.

Commentary:

As soon as the trial court found and the court of appeals held that the university personnel did not have the authority to give consent to the officers to enter and/or search the defendant’s dorm room, the officer’s actions were doomed.  It would appear that the court of appeals would hold that, after the university personnel (properly) found evidence of contraband in the defendant’s dorm room, they should have reported that finding to the police, who then should have gotten a warrant.  This decision cites the pertinent case law in the area, and unfortunately should be upheld on petition for discretionary review.

Office of the Attorney General

Letter from the Brown County Attorney

KP-0037                9/29/15

Question:

Does a county have the authority to reimburse a commissioner for legal expenses incurred defending against criminal allegations for which the commissioner was found not guilty?

Answer:

Yes, if the county finds that the expenditure is for a county purpose, not merely for the commissioner’s personal interest, and the actions taken by the commissioner for which he was prosecuted were within the scope of his official duties. Read.

Commentary:

This opinion was arrived at based upon a review of several previous attorney general opinions.  No statute specifically gives the county this authority or discretion.  The opinion based its decision upon common law.

Letter from the Brazos County Auditor

KP-0038                9/29/15

Question:

Does the Open-Meetings Act apply to district and county court-at-law judges when they meet to appoint county officials?

Answer:

No. Groups of district judges or county judges meeting to appoint county officials are not usually considered “governmental bodies” under the Open Meetings Act and thus are not required to post notice of such meetings. Read.

Commentary:

So a group of judges making decisions is not like a county’s commissioner’s court making decisions, at least for the purposes of the Open Meetings Act.   The distinction may be pretty subtle, but the opinion would seem to hold up based upon the authority that it cites.

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