February 10, 2017

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Texas Supreme Court

Paxton, Attorney General of Texas  v. City of Dallas

No. 15-0073        2/3/17


Does the Public Information Act (PIA) mandate public dissemination of otherwise confidential attorney-client communications solely because a governmental body missed a statutory deadline?


No. Without some form of waiver, the interests protected by the attorney-client privilege are sufficiently compelling to rebut the public-disclosure presumption that arises upon expiration of the 10-day deadline under the PIA for filing a request for Attorney General opinion. “The Legislature’s choice to exempt information protected by the attorney-client privilege embodies the fundamental understanding that, in the public sector, maintaining candid attorney-client communication directly and significantly serves the public interest by facilitating access to legal advice vital to formulation and implementation of governmental policy.” Read opinion.

Dissent (Boyd, J.):

The dissent contended that the majority has treated the attorney-client privilege as “unique and special even though the Act does not. … Under the Court’s holding, establishing the exception will always constitute a compelling reason, so the Act’s compelling-reason requirement is meaningless when applied to attorney-client communications. This holding obliterates the sole method by which the Act compels the government to timely and properly assert the attorney-client privilege.” Read opinion.


The issue in this case appears to be quite simple. There is no dispute that the attorney/client privilege is a basis upon which to exempt otherwise public information from an open records request. There is also no dispute that the attorney/client privilege applied in the two situations involved in this case. The only issue in this case is whether the attorney/client privilege is so important that it should essentially excuse the city’s failure to timely seek a public information decision from the attorney general (which it was required to do). If you read this decision, you will learn a great deal about the Public Information Act and the manner in which a majority of the Texas Supreme Court views the attorney/client privilege. In general, if you wish to have an item of public information protected from disclosure by one of the statutory exceptions, you must timely seek a decision from the attorney general, unless it is a very unusual case (as in this situation).

Texas Court of Criminal Appeals

Lake v. State

No. PD-0196-16          2/8/17


Is denial of a closing argument at a community-supervision revocation proceeding structural error that requires automatic reversal?


No. This type of error has not been labeled by the U.S. Supreme Court as structural error, and therefore, it may be reviewed under a harm analysis. Read opinion.

Concurrence (Yeary, J.):

Judge Yeary agreed that the error was not structural but wrote separately to disagree with the majority opinion’s continued reliance on Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997), which Judge Yeary believed did not survive enactment of T.R.App.P. 44.2(a) in 1997. Read opinion.

Dissent (Alcala, J.):

Judge Alcala wrote that denial of the right to give a closing argument at the revocation hearing was constitutional error, and the case should be remanded for a new revocation hearing. Read opinion.


This is yet another in a long line of decisions that stand in opposition to treating an error as subject to automatic reversal. If the error has not been identified by the United States Supreme Court as “structural,” it is subject to a harm analysis.

Moore v. State

No. PD-1634-14           2/8/17


Does Family Code §54.02(j)(4)(A) require that the court consider the factors for oppressive delay before dismissing a case with prejudice?


On rehearing, the per curiam opinion again held that a trial court need not consider the factors for oppressive delay before dismissing a case with prejudice. The term “the State” in Family Code §54.02(j)(4)(A) includes both prosecution and law enforcement, so a delay in the investigation will not be considered a reason beyond the control of the prosecution. Read opinion.


The court withdrew its previous decision issued back in October, but this new decision does not appear to be significantly different. The bottom line is that, in seeking to prosecute a juvenile who has reached the age of an adult, the State must pursue the case expeditiously. And that includes law enforcement.

Texas Courts of Appeals

State v. Cortez (7th COA)

No. 07-15-00196-CR        2/3/17


Must a driver cross completely over the fog line into the improved shoulder to constitute an offense under Transportation Code §545.060 (driving on an improved shoulder)?


Yes. Looking at both the wording of the statute and other opinions, the court concluded on remand that the statute requires a driver to cross over the fog line; merely driving on the fog line without crossing over is not an offense. The court also concluded that it could not uphold the stop based on an objectively reasonable mistake of law by the officer as to what §545.060 required. Read opinion.

Concurrence (Pirtle, J.):

Justice Pirtle wrote to expand on the majority opinion as to why the objectively reasonable error of law holding from Heien v. North Carolina, 135 S.Ct. 530 (2014) does not apply to this case. In Heien, the officer’s reasonable (but mistaken) interpretation of one of North Carolina’s brake-light laws was sufficient for reasonable suspicion to uphold the traffic stop. Here, however, Justice Pirtle wrote that it was not reasonable for the officer to suspect the driver’s conduct reasonably fit within the driving on improved shoulder statute. Read opinion.


The majority opinion in this case is very thorough and consistent with other decisions that have dealt with drivers crossing over a “fog line” on a highway. It is possible that the Court of Criminal Appeals may want to review this decision because of the manner in which the court construed Heien v. North Carolina. But be cautious about opposing a motion to suppress if the only evidence in support of the officer’s traffic stop is the fact the driver’s tire merely touched the fog line.

Pickron v. State (14th COA)

No. 14-16-00080-CR        1/31/17


May statements about a startling event made before the crime occurred be admissible under the excited utterance exception to the hearsay rule?


Yes. Statements a murder victim made on the phone to her sister about her fear of the defendant and the fact that he was “trashing” her house while she spoke could be considered excited utterances, even though the car crash that the defendant caused that killed the victim happened the next day. Read opinion.


This is a great decision and should be especially helpful in domestic violence cases. The opinion underscores the fact that an excited utterance need not relate to the charged offense. Assuming that it is relevant, if the statement meets the requirements for an excited utterance, it should be admitted into evidence.

Carson v. State (6th COA)

No. 06-15-00170-CR        1/31/17


At a sentencing hearing before the judge, may a trial judge consider the defendant’s criminal history as reflected in the State’s Rule 404(b) notice of extraneous offenses if the State fails to introduce evidence at the hearing to support the allegations in the notice but provided the notice to the defendant before trial?


No. Providing 404(b) notice to a defendant and filing the notice with the court and arguing that criminal history at sentencing without objection is insufficient to allow the judge to consider those extraneous offenses without additional evidence presented at the sentencing hearing. Read opinion.

Dissent (Burgess, J.):

“I believe that on the record presented in this case and because the trial court specifically limited its consideration of the Rule 404(b) notice to only the adjudicated offenses listed in that notice, it did not violate Carson’s right to due process. …” The dissent would find, however, that the trial court’s consideration of the Rule 404(b) notice violated Code of Criminal Procedure Art. 37.07, §3(a) because the judgments for the extraneous offenses were not admitted into evidence.


If you wish the trial judge to consider extraneous offenses in sentencing the defendant, a prosecutor should present evidence on those extraneous offenses or have the defendant stipulate to them.

Texas Attorney General

Opinion No. KP-0132      2/6/17


May a reserve deputy sheriff act as surety on a bail bond?


Assuming a surety satisfies the requirements for sureties on bail bonds under Chapter 17 of the Code of Criminal Procedure, no authority appears to prohibit a reserve deputy sheriff from acting as a surety on a bail bond or prohibit a sheriff from accepting such a bond. Read opinion.


While the opinion suggests that there is no problem with such an officer acting as a surety on a bail bond, the opinion did go on to note that, if a defendant failed to appear for a particular court date and the bond was forfeited, the officer could run afoul if the law if he attempted to re-arrest the defendant because of the forfeited bond. The conflict-of-interest concerns should encourage such an officer to proceed cautiously.

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]