Weekly Case Summaries: July 24, 2009

Texas Courts of Appeals

Kjolhede v. State - 5th COA

07/15/09 : Cite No. 05-06-01361-CR : Privacy Interest

Issue

Did the defendant have standing to challenge a search of his suitcase at airport curb-side check-in by a Transportation Security Administration officer who subsequently found a vial of cocaine in the bag?

Holding

No. The defendant had a possessory interest in his own suitcase, but he willingly surrendered the bag to the TSA for screening. There were numerous signs warning that passengers need to be available to unlock their baggage if they want to travel with locked bags. Any hope that the defendant had that his baggage would not be checked before being loaded aboard a passenger aircraft was not reasonable in a post-9/11 world.
Read opinion.

Commentary

So, now we have it in print. Your are officially stupid if you put cocaine in your suitcase and think no one can search for and seize it at the airport after you check your luggage.

Texas Attorney General Opinions and Opinion Requests

Opinion for the Harrison County Criminal District Attorney

07/16/09 : Opinion No. GA-0728 : Statutory County Court Judges

Issue

Is the judge of a statutory county court, the jurisdiction of which is limited to misdemeanor cases, among the group of judges described in Government Code §76.002 (Establishment of Departments)?

Opinion

Yes, the judge of a statutory county court who is trying criminal cases in the county or counties served by the judicial district and who has jurisdiction over only misdemeanor cases is likely among the group of judges described in Government Code §76.002(a).
Read opinion.

Opinion Request from The Honorable Rodney Ellis

07/14/09 : Request No. RQ-0810-GA : Posthumous Pardons

Issue

May the governor grant a legally effective posthumous pardon under current Texas law or under the law as of September 1, 2009, when new laws go into effect? In addition, who has standing, and on what grounds, to challenge a governor's pardon (posthumous or otherwise)? Next, is the Board of Pardons and Parole constitutionally authorized to recommend a posthumous pardon and was a previous Attorney General's Opinion (No. C-471), issued in 1965, legally binding on the governor, or could he have legally issued a posthumous pardon upon the recommendation of the Board of Pardons and Parole? Finally, what is the process for challenging a pardon? If the challenge is successful, is there an appeals process?
Read opinion request.

Commentary

This request for an AG opinion arises from the failed attempt last session to amend the Texas Constitution to give the governor authority to issue a pardon to a person after that person has died. The legislation was written to respond to the exoneration of Timothy Cole, who had died in prison serving a sentence for a crime he didn't commit. The bill failed to pass in the recent session because of the chubbing that took place in the House, causing many bills to die prematurely. Governor Perry has taken the position that he can't grant a pardon for a dead person. Senator Ellis has taken the position that the governor can grant such a pardon, even though the law was not amended. This opinion seeks a tie-breaker from the AG.

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