Texas Supreme Court
City of San Antonio v. Maspero
No. 19-1144 2/18/22
Issue:
Was the City’s governmental immunity waived under the Texas Tort Claims Act (TTCA) when a suspect, while being pursued by a police officer, wrecked into the claimant’s car, injuring and killing two of the passengers?
Holding:
No. Section 101.055 of the TTCA does not apply in situations involving officers who are reacting to emergencies, and therefore official immunity applies unless the claimants can establish: “1) that the officer’s pursuit violated the laws and ordinances applicable to the emergency response, or 2) that the pursuit was reckless.” Undisputed facts in this case showed the officer was responding to an emergency situation—a fleeing suspect who was “transporting drugs as part of a larger drug-trafficking operation,” and although the officer did not follow internal departmental policies requiring her to activate her sirens, her actions did not violate any laws or ordinances. In addition, evidence at trial showed the officer assessed the risk of her pursuit when she slowed down at intersections and her driving was not reckless. Read opinion.
Commentary:
High-speed police chases aren’t uncommon and, unfortunately, sometimes involve injuries to or deaths of innocent bystanders. High-speed chases are also dynamic, rapidly changing situations wherein officers are required to make quick decisions, some of which may result in violations of the officers’ police department policies (like, here: obtaining express, prior authorization to conduct a pursuit). With this case, though, the Texas Supreme Court firmly explains that a police officer’s “negligent implementation” of police department policy during a chase does not give rise to an independent ground for waiver of governmental immunity to suit for bystanders’ injuries or deaths that result from the chase. This is so because “a police department’s internal policies, in and of themselves, are not ‘laws’ or ‘ordinances’”; therefore, violations of these policies do not constitute violations of “the laws and ordinances” applicable to an emergency response for purposes of waiver of governmental immunity.
City of San Antonio v. Riojas
No. 20-0293 2/18/22
Issue:
Was the City required to prove a police officer balanced the need for and risk of activating his emergency lights (under Wadewitz v. Montgomery, 951 S.W. 2d 464 (Tex. 1997)) to prevail in a case challenging the officer’s official immunity?
Holding:
No. The need/risk assessment applies only in the context of a police emergency, as opposed to routine traffic management. In the context of routine traffic management, the City was required to prove only that the officer acted in good faith—that a reasonably prudent officer faced with the same circumstances could have believed that his conduct was justified. Here, the officer relied on his training when he activated his emergency lights to warn other motorists of a traffic slowdown ahead. Read opinion.
Commentary:
A police officer has official immunity from suit when he or she performs job-related discretionary functions in good faith and within his or her authority. The Texas Supreme Court has previously held in Chambers and Wadewitz that, to show good faith in the context of an emergency-response situation (like a high-speed chase), the officer must have engaged in analysis that weighs the need for the action and the action’s potential risks. Since then, though, the Court has declined to expand the need/risk balancing requirement to show good faith beyond emergency-response situations and, instead, has established a lower good-faith standard (without a need/risk assessment) for other non-emergency-response situations. The Court continues to refuse to do so here, observing that routine traffic management actions are distinct from emergency-response situations and holding that the lower good-faith standard applies when an officer is engaged in routine traffic-management duties.
Texas Courts of Appeals
State v. Heath
No. 10-18-00187-CR 2/16/22
Issue:
Is exclusion the proper remedy when a prosecutor fails to produce a 9-1-1 recording after a timely request from a defendant but the failure was not the result of a “willful” violation of CCP Art. 39.14(a)?
Holding:
Yes. Although the prosecutor disclosed the 9-1-1 recording the same day she learned about it and obtained it, the State now has an affirmative duty to search for the item within its custody, constructive possession, or control and produce it to the defendant in a timely manner after a timely request for discovery has been made. The State can no longer “wait until it gets ready, or when the prosecutor decides to prepare the case for trial, to then search out and produce properly requested discovery.” The court also indicated that granting a continuance was also within the trial court’s discretion; however, it was not required in this situation. Read opinion.
Commentary:
CCP Art. 39.14(a) requires the State to provide discovery to the defense “as soon as practicable” after receiving a timely request from the defense. Because nothing else in the statute explains what “as soon as practicable” means, courts have generally interpreted the phrase to mean, essentially, as soon as the prosecutor learns of the item or document subject to discovery. This opinion changes that and finds that Art. 39.14(a) imposes an affirmative duty upon the prosecution to timely search for discoverable evidence in the State’s possession. Further, this opinion finds that the prosecution’s failure to do so (or failure to prove that it did so) equates with a “willful violation” of the statute or “bad faith,” such that suppression of the “untimely” disclosed evidence is within the trial court’s discretion. It is critical to note that this is a very fact-specific case, though. As explained in Footnote 2, the result of this case might have been different if the prosecutor had explained or proved what efforts she had undertaken to try to timely learn of or seek out all evidence in the State’s possession before preparing for this case’s fourth trial setting, when she learned from a witness that a 911 call had been made. Prosecutors should thoroughly document efforts to “timely search” for discoverable evidence in the State’s possession (including evidence held by police departments, laboratories, 911 call centers, other state agencies, etc.) and then clearly establish those facts on the record in the suppression hearing. This could avoid a finding of “willful” misconduct or bad faith and, so, avoid suppression of evidence that exists, but isn’t learned of until late in the game. Also, note that the Legislature recently enacted CCP Art. 2.1397 (which places an affirmative duty on a law enforcement agency to give the prosecutor’s office all information and items that would be discoverable under Art. 39.14(a)). Hopefully, the new statute will give prosecutors some help carrying out this affirmative duty to “timely search” for discoverable evidence in the State’s possession.
Walton v. State
Nos. 02-20-00036-CR through -00038-CR 2/17/22
Issue:
Did a trial court correctly assess fines and fees for each of a defendant’s three cases when the court ordered that his sentences run concurrently?
Holding:
No. Under CCP Art. 102.073, when the State tries a defendant in a single criminal action for multiple offenses, a court may assess fees and costs against a defendant only for the offense of the highest category. Here, because the defendant’s three sentences (one for unlawful restraint and two for deadly conduct) were to run concurrently, the fines and time payment fees for each deadly conduct offense were deleted. Read opinion.
Commentary:
When a trial court improperly “stacks” fines and court costs for offenses that are tried together and ordered to run concurrently, only the fine and court costs for the highest level of offense (not necessarily the highest fine amount) in the consolidated proceeding will be retained. Remind a judge of this so he or she knows to assess the fine he or she really wants imposed in the case of the highest offense category.
Brumfield v. State
No. 12-21-00031-CR 2/16/22
Issue:
Did the trial court correctly assess a Local Consolidated Fee in the defendant’s judgment and include a $10,000 fine in the bill of costs?
Holding:
No. The Local Consolidated Fee in felony cases may be assessed only against a defendant convicted of an offense committed on or after January 1, 2020, under Local Gov’t Code §134.101. Here, the offense was committed prior to the enactment of §134.101. Second, the $10,000 fine should not have been included in the bill of costs because fines constitute a defendant’s punishment and sentence, not costs associated with recovering “the costs of judicial resources expended in connection with the trial of a case.” The court modified the defendant’s judgment and bill of costs to reflect these changes. Read opinion.
Commentary:
Just as an offense cannot be prosecuted if committed before the effective date of the statute that enacts it, a court cost cannot be assessed if the defendant is convicted before the statute imposing the cost for that particular offense becomes effective. On another note, any fine that the factfinder imposes against the defendant must be included in the judgment of conviction and sentence but should not be included in the bill of costs, despite any boilerplate language in the bill of costs relating to “fees or fines” to be assessed upon conviction.
Texas Attorney General Opinion
KP-0401 2/18/22
Issue:
Could “sex change” procedures and treatments performed on children constitute child abuse?
Conclusion:
When performed on children, “sex change” procedures and treatments such as 1) sterilization; 2) mastectomies; and 3) removing otherwise healthy or non-diseased body parts or tissue, can legally constitute child abuse under several provisions of Chapter 261 of the Texas Family Code. A court would likely consider the fundamental right to procreation, issues of possible physical and emotional harm associated with these procedures and treatments, consent laws in Texas and throughout the country, and existing child abuse standards.
Hinton Memorial Scholarship Reminder
Want to go to the 2022 TDCAA Annual Criminal and Civil Law Conference but don’t have the funds? Just a reminder that the Foundation, through generous gifts in memory of Mike Hinton, can provide you with a scholarship! All you need to do is fill out the application HERE and send it in. Questions? Just call Rob at 512/971-8425. But hurry, applications are due April 30.