April 17, 2020

Texas Courts of Appeals

Olsen v. State

No. 01-18-00281-CR              4/14/20


Is a defendant entitled to a jury instruction on illegally obtained evidence under Tex. Code Crim. Proc. Art. 38.23 when the defendant contends that the arresting officer did not have probable cause to arrest her in light of the circumstances?


No. The defendant was not entitled to a Tex. Code Crim. Proc. Art. 38.23 instruction because the defendant did not contest all facts material as to the lawfulness of her arrest. To prevail, the defendant had to do more than raise fact issues as to three probable cause factors; she had to challenge all material facts. Read Opinion.


“Because the arresting officer’s own testimony creates a disputed fact issue as to [the defendant]’s performance on these tests and the arresting officer also testified that this was the sole basis for probable cause, I respectfully dissent.” Read Opinion.


This decision is quite fact-bound, but it should still be very helpful in explaining when a defendant is entitled to an Article 38.23 instruction and how the facts should be considered in making that determination. In order to be entitled to an Article 38.23 instruction, a defendant must raise a fact issue with regard to all facts that are material to the legality of the officer’s action (probable cause, reasonable suspicion, etc.). That means that, if there is an undisputed fact issue that still—standing alone—supports the officer’s actions, the defendant has failed to challenge all material facts, and she is not entitled to the instruction. The majority opinion is thorough and does a good job of responding to the dissent’s advocacy for a different standard for review.

Texas Attorney General

KP-0298                      4/8/20


1) May a district court order the commissioners court to provide compensation for the court coordinator in a specific amount?

2) May a commissioners court disregard the reasonable compensation determined by the district court judge and set a different compensation?

3) May the commissioners court may set the salary of an assistant court coordinator?


1) No. Under Government Code §74.104, the district court judge determines reasonable compensation for the court coordinator, subject to approval by the commissioners court. The district judge does not have authority to order the commissioners court to provide compensation in a specific amount.

2) No. A court is unlikely to conclude that the commissioners court may disregard the judge’s determination of a reasonable compensation and unilaterally set compensation in a different amount in the county’s final budget.

3) Yes. While Government Code §74.103 authorizes the district court to “appoint appropriate staff and support personnel according to the needs in each county,” subchapter E does not address the compensation of assistant court coordinators. Thus, the commissioners court may set the amount of compensation for assistant court coordinators as with other employees paid by the county under §152.011 of the Local Government Code. Read Opinion.


This is a thorough discussion of the interplay between the authority of a Commissioners’ Court (Chapter 152 of the Local Government Code) and a District Court Judge (Chapter 74 of the Government Code) with regard to salaries and compensation. If you want to see the various provisions regarding prosecutors, look to Chapter 41 and the following chapters in the Government Code.

Texas Attorney General Request for Opinion

RQ-0344-KP               Request Received 4/8/20


When there is an ongoing criminal investigation, are the “warrant” and “warrant return” associated with an affidavit subject to disclosure under Tex. Code Crim. Proc. Art. 18.02, the Texas Public Information Act, or any other law or regulation of the State of Texas? Read Request.