5th Circuit Court of Appeals
Las Americas Immigrant Advocacy Center, et al. v. Martin, et al.
No. 24-50149 7/3/25
Issue:
Did the federal district court correctly enter an injunction against the Department of Public Safety enforcing immigration laws that are likely pre-empted by federal statutes and regulations?
Holding:
Yes. The 5th Circuit affirmed the district court’s grant of a preliminary injunction against the defendant. The laws enacted by SB 4 passed in 2023 (Penal Code Chapter 51 and Code of Criminal Procedure Chapter 5B) pertaining to entry and removal of aliens “infringe on a preempted field” and conflict with federal law. “For nearly 150 years, the Supreme Court has recognized that the power to control immigration—the entry, admission, and removal of aliens—is exclusively a federal power. Despite this fundamental axiom, SB 4 creates separate, distinct state criminal offenses for unauthorized entry and reentry of aliens into Texas from a foreign nation, and it provides procedures for their removal. … [W]e believe Congress … intended to occupy the field of immigration policies concerning entry into and removal from the United States.” The Court noted that the Texas laws also fail to provide an alien the ability to pursue a variety of immigration challenges, such as a Convention Against Torture claim, which can be raised by an alien with a reasonable fear of persecution or torture in her home country and includes the right to appeal. “In sum, there are ‘significant complexities’ in determining an alien’s immigration status. SB 4 runs roughshod over them.” Read opinion.
Dissent (Oldham, C.J.):
“Today’s majority usurps the State of Texas’s sovereign right to police its border and to battle illegal immigration. In doing so, it underrules the Supreme Court’s standing doctrine. It defenestrates our rule of orderliness. It turns upside down the standards for preliminary injunctions and facial pre-enforcement review. It finds that Congress somehow preempted the field of immigration—by affirmatively authorizing States to participate in it. And it subverts the other preliminary-injunction factors by holding, for example, that the Biden Administration’s criticisms of Texas create a public interest in facially enjoining all applications of the State’s immigration law—while the Trump Administration’s partnership with Texas to battle the immigration crisis is irrelevant.”
Commentary:
This 94-page majority opinion upholds a preliminary injunction, so even if this decision is not appealed to the United States Supreme Court, that will not be the end to this litigation. But prosecutors should fully expect that this decision will be reviewed further, whether by the full membership of the Fifth Circuit Court of Appeals (en banc) or by the United States Supreme Court. The (huge) beginning to the opinion deals with questions like standing and jurisdiction, which may be of little interest to most prosecutors. The portion of the decision that actually deals with whether the Texas statutes are pre-empted by federal law begins on page 50 and ends on page 88. The bulk of that portion of the court’s opinion follows the previous pre-emption decision of the Supreme Court in Arizona v. United States, and it also points out where the Texas statutes conflict with current federal law. The analysis is extremely thorough. The dissenting opinion’s treatment of the pre-emption question is likewise very thorough spanning from page 148 to page 174. Prosecutors wishing to enforce these enacted statutes should watch this decision very closely.
Texas Supreme Court
Paxton and Abbott v. American Oversight
No. 24-0162 6/27/25
Issue:
Does the Public Information Act give a district court jurisdiction to issue a writ of mandamus against constitutional executive officers?
Holding:
No. Government Code §22.002(c) states that only the Texas Supreme Court has the authority to issue a writ of mandamus against the officers in the executive branch, and §22.002(a) provides that even the Supreme Court may not issue mandamus against the governor. The Court concluded that although executive officers can be sued if they violate the Public Information Act, §552.321(b) of the Government Code (the Public Information Act) does not override the provisions dealing with mandamus and executive officers in §22.002. Read opinion.
Concurrence (Young, J.):
The concurrence would find that the intermediate appeals court’s ruling “depends on two mistaken holdings. The first is statutory: that the legislature attempted to authorize district courts to enforce the Public Information Act against the State’s executive officers by writ of mandamus. The second, which is applicable only to the governor, is constitutional: that the legislature could authorize a district court to issue a writ of mandamus against the governor. I join the opinion of the Court, which resolves the case on purely statutory grounds and thus properly declines to address the second holding below. I write separately to address that holding, however, because it reflects an error of constitutional dimension that should not pass unnoticed.” Read concurrence.
Commentary:
This decision deals with the conflict between §552.321(a) of the Government Code, which authorizes a suit for a writ of mandamus in district court as the remedy for the violation of the Public Information Act and §22.002(c) of the Government Code, which permits only the Texas Supreme Court to issue a writ of mandamus in this situation. There is no constitutional provision that gives mandamus jurisdiction to a district court. (A constitutional provision gives mandamus jurisdiction to the Court of Criminal Appeals in criminal cases, and a statutory provision gives mandamus jurisdiction to the courts of appeals, neither of which are covered by this decision.) Broken down like this, the majority’s decision is a relatively easy exercise in statutory construction. A party does have a remedy for a violation of the Public Information Act, just not by way of a suit seeking a writ of mandamus.
Texas Court of Criminal Appeals
Milton v. State
No. PD-0282-24 7/2/25
Issue:
Can a child under 17 be a victim of trafficking by compelled prostitution if the conduct involves the child having sex with adults more than three years older than her for pay?
Holding:
Yes. “Appellant and the court of appeals focus on whether (and when) 14-to-16-year-olds can consent to have sex, but that is the wrong focus. The proper focus is on whether the trafficking and compelling-prostitution statutes criminalize the conduct at issue in this case. They do.” The Court noted that unlike the trafficking statute, which covers a broad array of offenses, the compelling-prostitution statute (Penal Code §43.05) covers only prostitution. Distinguishing its prior holding in Turley v. State, the Court concluded that imposing a further age limitation on who can commit prostitution would seem inconsistent with the plain language of the compelling prostitution statute. Read opinion.
Commentary:
This common-sense decision is long overdue. Hopefully, Turley will no longer cause a problem in Texas jurisprudence because the court here has expressly disavowed it. Prosecutors should refer to this decision if defense counsel attempts continued reliance upon Turley in other contexts. For now, with regard to the issue presented in this case, the holding of the court is unambiguous: “Any child under age 18 that is able to satisfy the elements of the prostitution statute can commit prostitution for the purpose of being a victim of the offenses of trafficking and compelling prostitution.”
Hallman v. State
No. PD-0332-22 7/2/25
Issue:
What is the appropriate standard of review when the State fails to timely disclose evidence under Code of Criminal Procedure Art. 39.14?
Holding:
The non-constitutional harmless error standard found in T.R.App.P. 44.2(b). In this case, after being convicted for multiple sex crimes against one of his children, the defendant moved for a mistrial during the punishment phase of trial after discovering that the State failed to timely disclose 13 pages of a family violence packet and his former wife’s handwritten statement related to an extraneous domestic assault. The trial court recessed trial to give the defense a chance to review the new evidence and also gave the defense the ability to recall any witness for cross-examination based on the new material. The trial court denied the defense’s request for mistrial because the newly disclosed information was cumulative to a detective’s offense report. “We agree with the trial court’s conclusion and the State’s argument on appeal that the State’s error here was harmless” and had only a very slight effect in determining the jury’s verdict. Read opinion.
Commentary:
This decision deals with the appropriate harm analysis and, as such, will probably be of interest only to appellate prosecutors. The violation involved in this case was a discovery violation under Article 39.14. The harm analysis for violation of a statute is set forth in Rule 44.2(b). Strangely, the court felt compelled to resolve the dispute of whether Rule 44.2(b) was the proper harm analysis in this case, or whether the court’s prior decision in Mosley v. State was the proper analysis. Mosley dealt whether a conviction should be reversed because of improper argument. The court found that the Mosley factors are nothing more than an application of Rule 44.2(b).
Tates v. State
No. PD-0486-23 7/2/25
Issue:
By failing to object at trial, did the defendant forfeit his right to complain about appearing remotely during the punishment phase of trial?
Holding:
No. The statutory right to be personally present during the punishment phase must be affirmatively waived and is not subject to forfeiture by failing to object at trial. The defendant was found guilty before the start of the COVID pandemic. Based on guidance from a Texas Supreme Court emergency order, the punishment phase was held with defense counsel present, and the prosecutors, punishment witnesses, and defendant appearing remotely. The Court concluded that Code of Criminal Procedure Art. 33.03 “supports the conclusion that the right to in-person presence is a waivable-only right. … Most importantly the exceptions to the mandatory requirement of personal presence in [CCP Arts. 33.03 and 42.03] are couched in terms of an affirmative waiver by a defendant. Neither provision has terms that support forfeiture by a defendant’s inaction.” Read opinion.
Concurrence (Yeary, J., joined by Schenck, P.J. and Parker, J.):
“Appellant was not free on bail during his punishment proceeding. Nothing in the record suggests his physical presence could not have been obtained by the trial court. He was not responsible for the Covid pandemic, and it was not his choice to appear remotely at the punishment hearing rather than in person. Absent a ‘voluntary absence’ of the kind that the statutory scheme has historically contemplated, the cases have always construed Article 33.03 and its predecessors to require an affirmative waiver. …” Read concurrence.
Concurrence (Parker, J., joined by Schenck, P.J. and Finley, J.):
The trial court “ordered the proceedings to be virtual so that Appellant would not physically attend. Let’s suppose a defendant who was physically present in the courtroom had done nothing to justify removal, but the trial court ordered him to leave anyway. Or suppose the trial court had ordered that defendant not to come back the next day. Would we suppose that the defendant ‘voluntarily absented himself’ under the plain meaning of that phrase by meekly complying with either of those orders? My common sense intuition tells me ‘no,’ and other contexts seem to support that conclusion.” Read opinion.
Dissent (Keel, J.):
Appellant was not prevented by a language barrier—or anything else—from objecting to the Zoom format of his hearing, and neither was his lawyer. An objection would have cost the defense nothing, and it would not likely have been futile or counterproductive; Appellant did not face a hostile judge whose antipathy towards the defense would have been highlighted for the jury by an objection to the Zoom format. And requiring an objection to preserve a complaint under Article 33.03 would not jeopardize the equal application of punishment ranges or cast the judicial system in a bad light. On the contrary, encouraging the prevention and early correction of errors is a good thing.” Read dissent.
Commentary:
This decision deals with whether a defendant must object if he is not permitted to be personally present during a court proceeding. But that does not mean that this decision would be of interest only to appellate prosecutors. Even though the pandemic is over, meetings by Zoom, Teams, or other platforms still occur, even in court. Prosecutors should be watchful if a defendant is appearing in court remotely, and they should make sure that the defendant is given the opportunity to expressly waive his presence in court. The majority’s decision is largely based upon extensive historical analysis and statutory construction and reaches the same result as the due-process holding the court had previously reached in Hughes v. State.
Texas Courts of Appeals
Rojas-Antonio v. State
Nos. 13-24-00247-CR through -00250-CR 7/3/25
Issue:
Was a police officer who observed from a separate room via live video feed a child victim’s outcry to a forensic examiner a proper outcry witness under Code of Criminal Procedure Art. 38.072?
Holding:
No, but the error was harmless because the officer’s outcry testimony was cumulative. The Court noted that it previously held that a forensic examiner who watched a video recording of the interview did not qualify as an outcry witness when the forensic examiner who conducted the interview was unavailable to testify. Rodriguez v. State, 689 S.W.3d 386 (Tex. App. — Corpus Christi–Edinburg 2024, pet. ref’d). “Within the confines of [Art. 38.072], we see no meaningful distinction between a person who watches a recording of an outcry and a person who watches a live video feed of an outcry on a closed-circuit television.” However, because the victim “provided the most detailed account of each offense, … her testimony alone was enough to render the error harmless.” Read opinion.
Commentary:
This decision is a straightforward application of who constitutes an outcry witness. An outcry witness cannot be someone who witnesses the outcry being given to someone else or overhears the outcry being given to someone else. Thankfully, this conviction was saved by the application of a harm analysis.