Weekly Case Summaries: October 29, 2010

Texas Courts of Appeals

In the interest of K.M.M. and E.J.G. - 7th COA

10/21/10 : Cite No. 07-10-0083-CV

Issue:

May a trial court appoint a parent - rather than an attorney ad litem or amicus attorney - to represent her child in a parental termination proceeding without making any findings that the parent can adequately represent the child?

Holding:

No, the nature of parental termination proceedings is too serious, and this type of error requires reversal. Read Opinion.

Commentary:

You will find that many of the rights afforded to a party in a parental termination proceeding are very much like those afforded to a criminal defendant. But even if this was just a "normal" civil proceeding, I cannot imagine such a trial court order standing without some factual basis for it in the record.

Pomier v. State - 14th COA

10/21/10 : Cite No. 14-09-00247-CR

Issue:

Did the felony court improperly deny a motion to quash the charging instrument that alleged only a misdemeanor offense of stalking?

Holding:

No, following Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009), even though the indictment was defective, the trial court had jurisdiction, and Pomier failed to preserve any error. Read Opinion.

Concurrence:

Chief Justice Hedges opined that although the court was required to follow Kirkpatrick, that opinion is unconstitutional because it muddles subject-matter jurisdiction with notice. Read Concurrence.

Commentary:

The error that occurred was alleging a stalking event that occurred prior to the date that stalking became a felony offense. Because of the dispute among the justices, the Court of Criminal Appeals may want to review this particular issued in this published decision. But the holding of this Court is also that the defendant was properly convicted of only a misdemeanor because an element of the offense occurred when the offense was still just a misdemeanor. It is important to remember that the typical "effective date" language for a statute states that a change to a penal statute does not apply if an element of the offense occurred before the change occurred.

 

Texas Attorney General

Opinion for Chair of the Texas Lottery Commission and the Chair for the House Committee on Local and Consent Calendars

10/22/10 : Opinion No. GA-0812

Issue:

Are bingo gift certificates or bingo merchandise such as bingo cards, card-minding devices, and pull-tab bingo "noncash merchandise prizes, toys or novelties" under §47.01(4)(B) of the Penal Code?

Opinion:

No. Eight-liner machines that award gift certificates redeemable at retail establishments or tickets redeemable for further play do not meet the requirements for exclusion under §47.01(4)(B). Similarly, a device that awards bingo cards or paper, card-minding devices and pull-tab bingo, or gift certificates redeemable for the same, is not rewarding the player exclusively with "noncash merchandise prizes, toys, or novelties," under §47.01(4)(B). Read Opinion.

Commentary:

The bottom line is that the eight-liners described in this opinion are still gambling devices. This is only an Attorney General's opinion. But as reflected within the opinion, it is entirely in line with previous case law on such machines. So this should be an important opinion to keep with you if you are confronted with the prosecution for, and/or forfeiture of, such devices.

Request for Opinion

10:20:10 : Request No. RQ-0926-GA

Issue:

May a resort or conference center operate a card room without violating chapter 47 of the Penal Code? Read Request.

 

 

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