February 22, 2019

Supreme Court of the United States

Timbs v. Indiana

No. 17-1091       2/20/19


Is the Eighth Amendment’s excessive fines clause an “incorporated” protection applicable to the States under the Fourteenth Amendment’s due process Clause?


Yes. The protection against excessive punitive fines is “both fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” This protection extends to civil in rem forfeitures when they are at least partially punitive. Here, the forfeiture of a $42,000 vehicle is disproportionate to the offense of selling $400 worth of heroin. Read opinion.

Concurrence (Gorsuch, J.):

“The majority faithfully applies our precedent and, based on a wealth of historical evidence, concludes that the Fourteenth Amendment incorporates the Eighth Amendment’s Excessive Fines Clause against the States. I agree with that conclusion. As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. … But nothing in this case turns on that question, and, regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.” Read opinion.

Concurrence (Thomas, J.):

“I agree with the Court that the Fourteenth Amendment makes the Eighth Amendment’s prohibition on excessive fines fully applicable to the States. But I cannot agree with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with ‘process,’ I would hold that the right to be free from excessive fines is one of the ‘privileges or immunities of citizens of the United States’ protected by the Fourteenth Amendment.” Read opinion.


As an abstract or theoretical proposition, a holding that the Excessive Fines Clause applies to a state in rem forfeiture proceeding, as well as a federal in rem forfeiture proceeding, is not remarkable. The decision in Austin v. United States has been the law for quite some time, but it has been cited rarely in state appellate court decisions. Expect a significantly higher degree of challenges to the disproportionality of asset forfeitures after this decision. Those wondering what some justices on the Texas Supreme Court have recently expressed about modern asset forfeitures should look at two opinions in El-Ali v. State, 428 S.W.3d 824 (Tex. 2014) (Boyd, J., concurring) (Willett, J., dissenting). Stay tuned.

Moore v. Texas

No. 18-443          2/19/19


In an intellectual disability analysis in a capital murder case, may a court focus its adaptive-functioning inquiry into adaptive strengths gained after imprisonment?


No. Current diagnostic medical standards focus the adaptive-functioning inquiry on adaptive deficits and caution against reliance on adaptive strengths developed in a “controlled setting,” such as a prison. Here, the Texas Court of Criminal Appeals mistakenly relied upon evidence of adaptive improvements, including: the defendant went from illiterate to writing at a seventh-grade level while in prison, the defendant gave “coherent” testimony at various proceedings, and the defendant could use basic math when making purchases at the prison commissary. Read opinion.

Concurrence (Roberts, C.J.) :

“[P]utting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here. On remand, the court repeated the same errors that this Court previously condemned—if not quite in haec verba, certainly in substance. The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S.W.3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits. That did not pass muster under this Court’s analysis last time. It still doesn’t.” Read opinion.

Dissent (Alito, J., joined by Thomas and Gorsuch, JJ.):

“Having concluded that the Court of Criminal Appeals failed to apply the standard allegedly set out in Moore, the Court today takes it upon itself to correct these factual findings and reverse the judgment. This is not our role. … If the Court is convinced that the Court of Criminal Appeals made a legal error, it should vacate the judgment below, pronounce the standard that we failed to provide in Moore, and remand for the state court to apply that standard. The Court’s decision, instead, to issue a summary reversal belies our role as ‘a court of review, not of first view.’ Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7 (2005). The Court’s foray into factfinding is an unsound departure from our usual practice. The error in this litigation was not the state court’s decision on remand but our own failure to provide a coherent rule of decision in Moore. I would deny the petition for a writ of certiorari. I certainly would not summarily reverse and make our own finding of fact without even giving the State the opportunity to brief and argue the question.” Read opinion.


Both before the decision of the Court of Criminal Appeals in 2018 and before this decision of the United States Supreme Court, the State has conceded that the defendant was intellectual disabled. Nevertheless, it appears that the ultimate result reached in this case was assured when the Supreme Court issued its first decision in this case in 2017. The decision issued this week by the Supreme Court is a per curiam decision, meaning it was not authored by any particular justice.

Texas Courts of Appeals

Guerrero v. State

No. 06-18-00076-CR        2/20/19


Is a life sentence for the offense of harassment by a person in a correctional facility, enhanced by prior convictions, grossly disproportionate under the Eighth Amendment?


No. A punishment may be unconstitutional under the Eighth Amendment if it is grossly disproportionate when considering “1) the gravity of the offense compared with the harshness of the penalty, 2) the sentences imposed for similar crimes in the same jurisdiction, and 3) the sentences imposed for commission of the same crime in other jurisdictions.” For a sentence that is enhanced based on prior convictions, the underlying offense, the enhancements alleged in the indictment, other criminal history, and disciplinary violations committed during confinement may all be considered. Here, the life sentence is not grossly disproportionate considering the defendant’s offense and criminal history: the underlying conviction for throwing a bucket of feces over a prison guard was enhanced by priors that included an arson conviction for starting a fire in a jail cell, multiple burglary convictions, and an extensive prison disciplinary history. Read opinion.


This decision is well in line with previous decisions addressing a grossly disproportionate sentence claim. It will direct prosecutors to much of the relevant law, especially with regard to “chunking” cases.

Texas Attorney General Opinions



What is the scope of a criminal district attorney’s discretion and purchasing authority as a specialized local entity under Local Government Code §140.003? Read request.


This appears to be a good-faith dispute between the local Criminal District Attorney and the local Purchasing Agent. The accompanying brief by the Criminal District Attorney is thorough, and the resulting opinion from the Attorney General should be helpful.


TDCAA Domestic Violence Seminar

Registration is now open for TDCAA’s 2019 Domestic Violence Seminar. Whether you are new to prosecution or a seasoned hand, this course will cover practical skills you need to do your job today. From intake to advocacy, this is Domestic Violence training developed for Texas prosecutors and presented by Texas prosecutors. Join us in Georgetown Texas April 9­–12 for this exciting training opportunity. For more information, please click here.

NCFI Digital Evidence for Prosecutors Training

The National Computer Forensics Institute is offering free training for state and local prosecutors on the investigation of crimes involving technology and presenting digital evidence in court. These five-day courses are held at the NCFI facility in Alabama at no cost to participating prosecutors. The application deadline is March 29. More information and the application are available here.

Obtaining Backpage.com historical information

For those prosecutors who are still waiting on historical Backpage.com ads as evidence in pending cases, the federal agencies in control of that information are now accepting new requests for that ad information. Instructions for investigators and prosecutors is available here.

State Bar now taking scholarship applications for upcoming training

The Criminal Justice Section is taking applications for scholarships for various courses. You must be a current member of the Criminal Justice Section to apply. Preference will be given to lawyers licensed 5 years or less. A list of courses and the scholarship application may be accessed here.