Texas Supreme Court
Noyes v. State
No. 24-0023 5/15/26
Issue:
Does a permanent protective order issued against the petitioner that prohibits him from possessing any firearm for the rest of his life violate his right to keep and bear arms under the U.S. and Texas Constitutions?
Holding:
The Court vacated the court of appeals’ judgment affirming the lifetime order, based on the petitioner engaging in stalking, so that the lower court could address the issue under the U.S. Supreme Court’s decision in United States v. Rahimi, 602 U.S. 680 (2024) (addressing the circumstances under which an individual could be banned from owning a firearm and the permissible duration of that disarmament). Read opinion.
Concurrence (Sullivan, J., joined by Devine, Young, and Hawkins, JJ.):
“Rights, like rifles, must be handled with care. As the U.S. Supreme Court recently held, the Second Amendment doesn’t protect everyone with a pistol and a pulse. … The time is nigh to break our own deafening silence about these constitutional guarantees. It might even happen in this very case, after the court of appeals does its job on the remand we’ve now ordered. … I offer these thoughts not to settle the matter, but to stir the pot. My preliminary review leads me to think that Subchapter A [of Code of Criminal Procedure Chapter 7B] raises grave constitutional concerns under both the Second Amendment and our Arms Clause, at least as applied to Noyes in this case.” Read concurrence.
Concurrence (Hawkins, J., joined by Young and Sullivan, JJ.):
“I write separately to highlight why this case is well suited to the GVR [Grant/Vacate/Remand] mechanism—that is, a brief opinion of the Court that grants the petition for review, vacates the lower court judgment, and remands the case to a lower court in light of some intervening circumstance. When used correctly, GVRs can advance the law and conserve party and judicial resources. Although our Court has rarely issued GVRs, I would encourage litigants to request them when appropriate—especially in light of our recent modifications to Texas Rule of Appellate Procedure 53.” Read concurrence.
Commentary:
In this opinion, the Texas Supreme Court does not formally decide on the constitutionality of a lifetime ban on the possession of firearms as part of a permanent protective order. The Court will weigh in on that question at some point, though, after the intermediate appellate court reconsiders this case in light of Rahimi (which permits temporary disarmament of persons found to pose a credible threat to safety). Assuming that the losing party seeks review of the intermediate appellate court’s ruling on remand, it sounds like at least some contingent of the Texas Supreme Court is poised to find that a lifetime firearm ban in these circumstances violates the Second Amendment of the U.S. Constitution and the Arms Clause of the Texas Constitution, given the views expressed by Justice Sullivan in his concurrence and joined by several other justices. This is certainly not the last we will hear of this issue, so stay tuned.
Texas Court of Criminal Appeals
State v. Lambert
No. PD-0832-24 5/21/26
Issue:
Did the court of appeals lose jurisdiction when an assistant district attorney, rather than the elected district attorney, signed an amended notice of appeal?
Holding:
No. Even though the initial notice of appeal contesting the trial court’s grant of a new trial contained errors, the record demonstrated that the State intended to contest the judge’s decision. “We conclude that the jurisdiction of the Thirteenth Court of Appeals was not lost when the Assistant District Attorney amended the State’s notice of appeal. Thus, the court of appeals did not need to ‘regain’ jurisdiction because appellate jurisdiction was present beginning from the first notice.” And although the first amended notice of appeal was signed by an assistant rather than the elected district attorney, it made clear representation that it was done pursuant to the intention and authority of the duly elected district attorney as allowed under our case law in State v. Muller.” Read opinion.
Commentary:
Under Code of Criminal Procedure Art. 44.01(d) and (i) and Muller, to initiate a valid State’s appeal and invoke the jurisdiction of an appellate court, the elected district or county attorney in an office must either: (1) physically sign the State’s notice of appeal himself or herself; or (2) personally instruct and authorize a subordinate, i.e., an assistant district or county attorney in the office, to sign the notice of appeal in the elected prosecutor’s stead. The best (and simplest) practice is option one. But if an elected prosecutor must use the second option, be sure that the record clearly shows (e.g., by explicit notation on the State’s notice of appeal itself) that the subordinate prosecutor is acting under the express instruction of and authority bestowed by the elected prosecutor.
Similarly, if there is a defect or omission in the State’s original notice of appeal, the best approach would be for the elected prosecutor to also physically sign an amended notice of appeal to rectify any errors in the original filing. However, if that is not possible, this opinion makes clear that, under option two, a subordinate prosecutor may sign the amended notice of appeal, as long as the record clearly shows that the subordinate is doing so under the express instruction of the elected prosecutor.
Texas Courts of Appeals
Hernandez v. State
No. 14-25-00292-CR 5/19/26
Issue:
Did the trial judge violate a capital murder defendant’s Sixth Amendment right to an open trial when the judge closed voir dire to the defendant’s family members and other members of the public?
Holding:
Yes. Because the judge failed to consider the factors enunciated in Waller v. Georgia, 467 U.S. 39 (1984), the Court reversed the defendant’s conviction and remand for a new trial. At the start of trial, the defendant told the judge that five of his family members wished to observe voir dire and he asked the court to make accommodations for them. The judge refused, noting that the only additional seats would be in the jury box and there was no other physical space for the public or family members. The defendant objected to “any family or the public being excluded,” and the trial judge overruled the objection. “Here, the sole reason the trial court stated it closed the courtroom was its concern that there was no available space. The trial court did not engage in a Waller analysis, make requisite findings or consider reasonable alternatives. Concerns about space and overcrowding may be legitimate concerns of a trial court, but they must not outweigh a defendant’s Sixth Amendment Rights. … Trial courts are expected to know and apply this basic rule. When they do not, public confidence is diminished and all participants—the State, the defense, the defendant and the defendant’s family, the victim and the victim’s family, and witnesses—must repeat the process. The costs of that repetition are entirely avoidable when, as here, all the court needed to do was either find an accommodation that preserved constitutionally required public access or make the constitutionally findings before ordering the closure.” Read opinion.
Commentary:
Courtroom space is not infinite and crowded courtrooms can be a common issue—especially during voir dire and when a case involves difficult subject matter, when larger venires are required. This case serves as an important reminder that, despite the logistical problems presented by an overcrowded courtroom, the trial court must either: (1) make reasonable accommodations (e.g., splitting the venire into two or more groups, moving to a larger courtroom or other space) to ensure that at least some members of the public, including the defendant’s family members, are able to attend the proceedings; or (2) engage in the Waller analysis and make explicit and thorough findings that the courtroom closure is “essential to preserve higher values” (such as ensuring appropriate space, safety, honoring occupancy and fire codes, etc.) and that the closure is narrowly tailored to protect those values. If the trial judge fails to do either of those things, that failure will violate the defendant’s Sixth Amendment right to a public trial and the case will have to be retried, as here. While prosecutors cannot control the trial court, when circumstances like these arise, prosecutors should remind the judge of these considerations and do their best to help the judge fulfill the obligations to protect the defendant’s fundamental right to a public trial.