August 16, 2019

Texas Courts of Appeals

Ex parte Barton

No. 02-17-00188-CR     8/8/19

Issue:

Is the 2001 version of Penal Code §42.07(a)(7) (harassment via text messages and emails) unconstitutionally vague and overbroad on its face?

Holding:

Yes. The prior version of the harassment statute violates defendants’ 1st Amendment free speech rights. The court concluded that the verbs “harass, annoy, alarm, abuse, torment, or embarrass” are too vague, especially in light of their finding that the statute is overbroad as written. “Experience has taught us that whether the President’s tweets—or an ex-spouse’s emails—are annoying or offensive is a highly subjective inquiry, and the view of whether these communications are innocuous, humorous, annoying, or offensive will differ greatly from person to person…. Consequently, we agree with Barton that the electronic-communications subsection is facially unconstitutional as vague and overbroad; as such, it is void and unenforceable.” Read opinion.

Commentary:

In this decision, the court of appeals essentially disagrees with a prior decision of the Court of Criminal Appeals in Scott v. State, believing that it had been abrogated by a subsequent decision of the Court of Criminal Appeals in Wilson v. State. A portion of Scott was indeed abrogated in Wilson, but perhaps not in the way that the court of appeals believes. Scott dealt with a constitutional attack upon the statute. Wilson did not. And Wilson did not abrogate the constitutional holding in Scott. It merely abrogated a portion of dicta in Scott that impacted a review of the sufficiency of the evidence, which was the issue in Wilson. The court of appeals also took the opportunity in this decision to resurrect its holding Karenev v. State, which was reversed by the Court of Criminal Appeals on procedural grounds. You might wonder what the big deal is, since this decision deals with a construction of a version of the statute that no longer exists. But it is important. The current statute is worded essentially the same. Furthermore, because of the manner in which the court of appeals rendered its decision, it could have impact upon other statutes that have similar provisions. Expect a review by the Court of Criminal Appeals.

Texas Attorney General

KP-0264     8/13/19

Issue:

Must a criminal district attorney’s office comply with the procedures and rules adopted by a county purchasing agent?

Holding:

A criminal district attorney is not subject to rules adopted by the county purchasing agent pursuant to Local Gov’t Code Ch. 262, subch. B, but the office is subject to rules implemented by the agent under the County Purchasing Act, which governs specialized local entities. Read opinion.

Commentary:

This opinion gives a criminal district attorney a good deal of autonomy with regard to purchasing, noting that the governing statute essentially views a criminal district attorney as a “county” for purchasing purposes. The restriction imposed upon a criminal district attorney’s purchases appears to deal with competitive bidding requirements, which is the purview of the County Purchasing Act. This opinion is very well written, but it is pretty complex. So be prepared.

Announcements:

TDCAA Annual Conference

There is something for every elected prosecutor and staff at TDCAA’s Annual Conference. Whether you are a prosecutor searching for new ways to solve old advocacy problems, a support staffer looking to better assist the public, or an investigator who needs to develop new skills, we’ve got something for you. Worried about overwhelming record requests? We have a presentation on that. Getting calls about skimmers at the local gas station? We have a presentation on that. Not sure about 2019’s caselaw? That’s right, we have a presentation on that. Join us in Corpus Christi as we rededicate ourselves to the business of justice with three days of training, networking, and celebration. For more information, click here.

Legislative Update Seminars

Join us at our Legislative Update tour this summer! (Click here for online registrations.) We’ll visit more than 20 locations throughout Texas in July and August to teach you, your staff, and your local court and law enforcement communities about all the new laws that will impact your work. If you haven’t already received your brochure listing all the locations and details, a PDF version is available online here. Find a date and location convenient for you and your staff and join us for the big show!

More Information on Hemp

The Texas Forensic Science Commission issued a document describing the impact of the federal farm bill and Texas legislation on forensic analysis of seized drugs in the crime laboratory as well as observations from the Office of Court Administration regarding case filing data. A copy of the document can be found at http://www.txcourts.gov/media/1444515/hemsplainer-080219.pdf .

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected]