Fifth Circuit Court of Appeals
No. 14-50773 1/5/16
Did the trial court violate the defendant’s First Amendment right of association by including as a condition of his supervised release that the defendant may not date any adult with minor children?
Yes. All conditions of supervised release must conform to the requirements of 18 U.S.C. §3583(d); they must be “reasonably related” to 1) the nature and circumstances of the offense and the defendant’s history and characteristics; 2) deterrence of criminal conduct; 3) protection of the public from the defendant’s further crimes; and 4) provision of needed educational or vocational training, medical care, or other correctional treatment to the defendant. There was no evidence that this restriction was related to any of these factors; thus, it was a violation of the First Amendment. Read.
Dissent (King, J.):
Judge King would affirm the condition because he found support in the record that this condition was “reasonably necessary in light of the nature and circumstances of the offense,” and that similar restrictions have previously been upheld by the 5th Circuit. Read.
The lesson in this case may be that courts can have standard conditions and that courts can have draconian conditions, but standard draconian conditions may be hard to defend. A court imposing a condition of this type needs to articulate the factual bases for the condition.
Office of the Attorney General
No. KP-0054 12/21/15
Does the doctrine of incompatibility prohibit a county sheriff from serving on the board of trustees of a school district?
No. Given that there is little interaction between the two offices and the sheriff does not operate on the school campus in any official capacity, it is likely that incompatibility would not apply here and one individual could hold both positions. Read.
Part of the rationale for the opinion is that the local police investigate on-campus crimes rather than the sheriff. But the sheriff could investigate anytime he wants to. …
Board of Disciplinary Appeals
No. 55649 12/17/15
Does Texas Disciplinary Rule 3.09(d) codify the constitutional duty to disclose exculpatory evidence under Brady v. Maryland?
No, Rule 3.09(d) is broader than Brady because it does not require “materiality” to establish a violation. ADA Schultz argued that Rule 3.09(d) could not exceed the legal obligations of Brady; however, the Board found that because Texas Code of Criminal Procedure Art. 39.14(h) requires the same disclosures as Rule 3.09(d), the Rule was not too broad or unfair to prosecutors. Additionally, the Board found no materiality requirement for disclosures under Rule 3.09(d), and no intent requirement for violations of Rule 3.04. Read.
All Texas prosecutors should read this opinion. ALL TEXAS PROSECUTORS SHOULD READ THIS OPINION. The BODA, performing a textual analysis just like a court would do, holds that materiality is not part of the calculus when determining whether a prosecutor has violated the ethics rules. That means that while a conviction may hold up on appeal, a prosecutor could still lose his bar card for failing to disclose favorable evidence. The BODA also held that there is not an intent requirement for violations of Rule 3.04—so if a prosecutor unlawfully obstructs access to evidence, that is a separate ethics violation even if the prosecutor did not intend a violation. The second holding may be problematic—what if a legal secretary improperly disposes of records? What if a DA investigator improperly disposes of a piece of evidence? A supervising prosecutor could lose his bar card for that. A prosecutor’s duty is to do justice, and this opinion reiterates the importance of setting high standards for ourselves and holding ourselves (and our team members) to those standards.