U.S. Supreme Court
Lindke v. Freed
No. 22-611 3/15/24
Issue:
Can public officials block constituents on their personal accounts on social media without violating the 1st Amendment?
Holding:
Yes. A public official can block someone on personal social media accounts or delete their comments as long as the official is not acting on behalf of the state. “When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.” Read opinion.
Commentary:
This case should perhaps serve as a warning to prosecutors and other employees of government agencies to exercise caution when posting job-related content on their personal social media accounts. In addition to preventing instances where your job-related opinions might conflict with your boss’s or agency’s stance on the subject matter of your post in a public way (which employers typically frown upon), it is possible that, as in this case, your job-related post could produce a First Amendment problem for you or your agency if both aspects of the two-part test outlined above are met. As the Supreme Court reminds us in this opinion, the First Amendment constrains the conduct of only the government, not private people. However, because it can be difficult to tell when a government employee’s job-related posts on the employee’s “personal” social media account are truly personal, it’s probably best practice to avoid the situation completely by keeping your personal job-related commentary offline.
Texas Supreme Court
In re Paul
No. 23-0253 3/15/24
Issue:
Did the trial court err in allowing a judgment creditor to prosecute a criminal contempt matter against a defendant who had violated a court order by failing to disclose certain transfers of money?
Holding:
A 5–4 majority of the Court denied the defendant’s petition for writ of mandamus without a written opinion.
Dissent (Bland, J., joined by Hecht, C.J., Devine, and Busby, JJ.):
“Because the trial court did not refer charges of criminal contempt to an authorized local prosecutor and instead permitted a financially interested party to prosecute the defendant, our Court should consider this petition for writ of habeas corpus on its merits. Upon review, we are likely to conclude that the trial court did not accord the defendant due process before finding him guilty of criminal contempt.” Read dissent.
Commentary:
Because the majority of the SCOTX did not issue an opinion, we do not know the majority’s reasons for declining to grant review of this question. However, the dissent argued that what occurred here—the private prosecution of a criminal contempt action by a judgment creditor in a related civil action—may implicate the constitutional guarantees of due process and separation of powers. Perhaps if this issue comes to the SCOTX in another way, at another time, the court will take it up and weigh in. Until then, perhaps the most educational aspect of this opinion is the reminder of the difference between civil and criminal contempt: civil contempt is “remedial and coercive in nature” and ends when the contemnor complies with the court’s order; on the other hand, criminal contempt is punitive in nature and applies by virtue of the fact that the contemnor violated the court’s order in the first place, regardless of whether the contemnor ultimately complies.
Texas Court of Appeals
Brewer v. State
No. 07-23-00191-CR 3/19/24
Issue:
Did transposing the victim’s name in an indictment and jury charge result in a material variance requiring reversal based on insufficient evidence?
Holding:
No. The Court noted that the doctrine of idem sonans focuses on pronunciation of a name rather than spelling to determine whether a variance is material. Because the victim’s proper name and the name alleged in the indictment do not sound alike, the doctrine of idem sonans does not apply. “Despite this Court’s exhaustive search, no case involving transposed names was found. Nevertheless, the State’s mistake did not result in prejudice to Appellant’s substantial rights.” Read opinion.
Commentary:
A few takeaways here. First, always double-check the charging instrument before trial. Recall that Article 28.10 of the Code of Criminal Procedure allows the State to amend a matter of form or substance in a charging instrument at any time before trial on the merits commences, after giving notice to the defendant, so long as the amendment does not charge an additional or different offense, or otherwise prejudice the defendant’s substantial rights. Even a cursory review of the charging instrument before trial can reveal clerical errors like this transposition of the complainant’s first and last names (which could have been remedied by the mere addition of a comma between the last and first names); misspellings of names, places, or other text; or even wholly omitted text or elements, like a jurisdictional enhancement.
Second, a variance between the charging instrument and the proof at trial is fatal only when the variance is material and prejudicial. Generally speaking, a variance will not be fatal so long as the evidence at trial does not establish an entirely different offense than what was alleged in the charging instrument. So if you discover a variance during trial, and the defendant objects to your attempt to amend and correct the charging instrument while trial is underway (which would bar amendment at that time, per Article 28.10(b)), do your best to present evidence that shows that the charged and proved offenses are one and the same (e.g., if you alleged the name of the loss prevention officer as the owner of stolen property, rather than the store, present evidence at trial that the named loss prevention officer has an ownership interest in the property, including a greater right to possession of the property than the defendant).
Third, don’t steal pythons from pet stores.
TDCAA executive director search is underway
Rob Kepple will be retiring at the end of the year, and the TDCAA Board of Directors has formed a search committee to help select the new executive director. As part of the process, TDCAA members should have received an email earlier this week with a link to a short survey. The survey will give all members currently working in a prosecutor’s office a chance to offer valuable input on the selection process, so please take the time to complete the survey when it comes your way! Interested in applying for the position? See the job posting here.
Domestic Violence Resource Prosecutor
The Texas District and County Attorneys Association is pleased to announce the creation of a new position: Domestic Violence Resource Prosecutor (DVRP). Patterned after the successful Traffic Safety Resource Prosecutor position (which provides training and support for prosecutors handling intoxicated driving cases), the DVRP will be responsible for training and technical assistance to Texas prosecutors and law enforcement personnel around the state. For more information, see the job posting here.
Sign up for the Round Up!
Starting next week, TDCAA will offer a new weekly email subscription service called “The Round Up” that will contain news articles from around the state and nation of interest to Texas prosecutors and their allied professionals in law enforcement or the legal community. To begin receiving that information in your inbox every Thursday morning, sign up here.