January 8, 2021

5th Circuit Court of Appeals

Daves, et al. v. Dallas County, Texas, et al.

No. 18-11368    12/28/20


Are district court judges proper defendants in suits challenging the bail system in a county? May the county sheriff be required to reject bail orders she believes are unconstitutional Do citizens have a liberty interest in release prior to trial?


This is an appeal from an injunction against enforcement of the “cash bail schedule” in Dallas County courts. The parties took multiple appeals and cross appeals regarding a number of standing and procedural issues. The 5th Circuit panel upheld the district court’s injunction precluding the Dallas County judges from “imposing prescheduled bail amounts as a condition of release on arrestees who attest that they cannot afford such amounts without providing an adequate process for ensuring there is individual consideration for each arrestee of whether another amount or condition provides sufficient sureties.” The panel found the criminal district judges were not properly included as defendants, because they are State officers, rather than county officers, and therefore have sovereign immunity under the 11th Amendment. The panel agreed with the district that the Sheriff was a proper defendant in challenges to the bail system even though her role is chiefly just enforcement of judicial bail orders. The panel rejected, however, portions of the injunction that authorized the Sheriff to decline to enforce bail orders she believed were improper. The panel noted that this language was “too imprecise” would turn the Sheriff into “an appellate court” over bail matters. Finally, the panel rejected the plaintiffs’ claims that they had a liberty interest in pretrial release such that pretrial detention would require a compelling state interest. Read opinion.


This is a dense discussion of the Texas judicial system, due process, and pretrial bail. It does not, however, constitute a final ruling that “bail schedules” violate the constitution. That issue seems more developed in the ODonnell litigation in Harris County that is discussed in depth in this opinion.

Texas Courts of Appeals

State v. Chen

Nos. 14-19-00372-CR & -00373-CR         12/31/20


Is the electronic communications–harassment statute (Penal Code §42.07(a)(7)) unconstitutionally broad on its face and as applied to the defendant?


Yes. The Court concluded that the plain text of the statute prohibits or chills a substantial amount of protected speech, thereby making it unconstitutionally overbroad. In a footnote, the Court pointed out that the language of the statute could conceivably criminalize “posting, sharing, or sending intentionally ‘annoying’ political social media posts, ‘alarming’ photographs of warzones, or ‘embarrassing’ photographs of celebrities, even if they are not directed to the person who is annoyed, alarmed, or embarrassed.” Read opinion.


One justice dissented without opinion. The validity of this statute is at issue in three cases currently pending in the Court of Criminal Appeals.

Torres v. State

No. 01-18-01074-CR      12/22/20


Does the Confrontation Clause apply to community supervision revocation hearings?


The law remains “unsettled.” However, the Court concluded that hearsay contained in a discharge report from CSCD, without a witness to testify with personal knowledge about the defendant’s alleged violations of the terms of his probation, was insufficient evidence to justify revocation. Read opinion.

Concurrence (Keyes, J.):

“I agree with the majority that the State failed to prove by a preponderance of the evidence that [the] appellant violated the terms and conditions of his community supervision, and I join the majority opinion on this issue. I would, however, address the questions that the majority leaves unanswered concerning whether [the] appellant had the right to confront and cross-examine the witnesses against him at his revocation and adjudication proceeding and whether he had a fundamental constitutional liberty interest, or right to due process, that was violated by those proceedings. I would hold that a defendant does have these rights and that [this] appellant, specifically, was deprived of his fundamental constitutional Sixth and Fourteenth Amendment rights to minimal due process and confrontation and cross-examination of the witnesses against him at the revocation hearing. I would also hold that the controlling United States Supreme Court and Texas Court of Criminal Appeals law is clear in this case, and the law as stated in the intermediate appellate court cases cited by the majority is directly contrary to this controlling law on these issues and should be expressly overruled.” Read opinion


It is not uncommon to see revocations based solely on reports from treatment or service providers. This case, and the Leonard case it relies upon, point out the danger of relying on such thin evidence, especially if the defense puts on competing evidence. The concurring judge would go further, however, and require the testimony of live witnesses, not merely records supporting the provider’s decision.

Ex parte Lee

No. 01-18-00969-CR      12/29/20


Does Penal Code §46.02(a-1)(2)(C), which prohibits a member of a criminal street gang from carrying a firearm in his vehicle, unconstitutionally violate the 1st or 2nd Amendments?


No. The statute does not impermissibly infringe on the defendant’s 1st Amendment rights to free speech, to associate, or to peaceably assemble and is not overbroad under the intermediate scrutiny analysis. Nor does the statute violate the 2nd Amendment right to bear arms under an intermediate scrutiny analysis. Read opinion.

Avalos v. State

Nos. 04-19-00192-CR & -00193-CR         12/30/20


Does the 8th Amendment prohibit the automatic imposition of life imprisonment without parole for an intellectually disabled defendant?

Holding (en banc):

Yes. On rehearing en banc, the Court reversed its original holding and concludes: “Although neither the United States Supreme Court nor the Texas Court of Criminal Appeals have addressed this issue directly, we agree with Avalos that the prohibition on the automatic imposition of the punishment follows from the Supreme Court’s holdings in Atkins and the Court’s individualized sentencing cases.” Read opinion.

Dissent (Chapa, J.):

“I respectfully dissent. For the reasons explained in the panel’s original majority opinion [issued June 3, 2020], the current state of the law compels us as an intermediary court to conclude that when an intellectually disabled adult commits capital murder, imposing an automatic life sentence without parole—without an individualized sentencing determination as is required for juveniles under Miller v. Alabama—is not unconstitutionally cruel and unusual.” Read opinion.


Keep an eye on this decision—it is likely to get review in a higher court.

Smith v. State

Nos. 05-19-01057-CR & -01059-CR         12/31/20


Does the definition of marijuana that was amended in 2019 by HB 1325 to include a THC concentration of more than 0.3% apply to prosecutions for possession of marijuana committed before the effective date of HB 1325 but tried after its effective date?


No. Under the Code Construction Act (Tex. Gov’t Code §311.022), because HB 1325 did not contain a retroactivity clause and did not otherwise expressly provide for retroactive application, the Legislature intended it to apply prospectively to offenses committed after the bill’s effective date. Read opinion.


Weeks before the new legislative session, an appellate court finally addresses one of the big questions left over from the last legislative session—whether the hemp bill was retroactive. The defendant in this case was totally bummed by the answer.

Ex parte Burke

No. 04-19-00704-CR      12/23/20


Is the offense of delivery of a dangerous drug unconstitutionally vague?


No. The word “unsafe” in the definition of a dangerous drug is sufficiently specific to provide ordinary people notice of the conduct prohibited in Health & Safety Code §483.042(a). The defendant’s argument “is flawed because it fails to construe ‘unsafe’ in context and demands a level of specificity that the law simply does not require.” Read opinion.

Dissent (Rodriguez, J.):

“I respectfully dissent because I believe the catch-all ‘unsafe for self-medication’ portion of the definition of a ‘dangerous drug’ in the Dangerous Drug Act is unconstitutionally vague on its face.” Read opinion.


This is a helpful decision because this statute is often the first tool used when new drugs come on the scene but have not been regulated by administrative agencies or legislators.

Warren v. State

No. 14-19-00589-CR      12/31/20


Did the State present sufficient evidence to disprove the defense of law-enforcement justification in Penal Code §9.51(a) for a patrol officer charged with assault causing bodily injury by striking a man found sleeping on a bench with a baton?


Yes. The Court notes that the State is not required to provide direct testimony that the defendant intended to commit an assault or some other crime to disprove a law-enforcement justification defense. The limits to the justification defense for law enforcement are that the force must be reasonably necessary. Testimony from the defendant’s baton-use instructor—that some of the defendant’s strikes were inappropriate because the defendant failed to give commands in conjunction with using the baton and failed to reassess the need for continued use of the baton—was sufficient to show that the defendant’s use of force was not necessary. Read opinion.


The unusual aspect of this case is that the appellant whose justification claim is rejected on appeal was a police officer on duty.

CCP changes for January 2021

As part of its code reorganization efforts, the Texas Legislature passed a bill (HB 4173) in 2019 that makes non-substantive changes to chapters in the Code of Criminal Procedure affecting protective orders, grand juries, and victims’ rights. Those changes take effect on January 1, 2021, and the publications department has laid out those new chapters, along with source and disposition charts, as PDFs that you can download for free at https://www.tdcaa.com/books/ (look for the links along the right-hand “rail” of your desktop layout). These changes will also be incorporated into the upcoming 2021 edition of TDCAA’s code books, which will be available next summer following the 87th Regular Session, but to bridge the gap until then, please take advantage of these free resources and share them with others in your courthouse as needed.

Mock Trial Judges Needed

The University of Texas at Arlington will once again be hosting the AMTA Regional Mock Trial Tournament this year via Zoom to ensure the safety of all students and volunteer judges. The competition will be held on February 5-7, 2021. We are thrilled to be able to do this in such uncertain times and are thankful to give students the opportunity to gain this experience despite this awful pandemic. Because our competition is virtual this year, it will involve nearly 300 students from colleges and some of the top universities across the country. If you have the availability, you can easily participate from the comfort of your living room.

Mock Trial Rounds for our competition on Regional Weekend 1 will take place via Zoom with the competition schedule as follows:

ROUND 1:  4:30 p.m. – 7:30 p.m. CST on Friday, February 5, 2021

ROUND 2:  10:30 a.m. – 1:30 p.m. CST on Saturday, February 6, 2021

ROUND 3:  3:30 p.m. – 6:30 p.m. CST on Saturday, February 6, 2021

ROUND 4:  10:30 a.m. – 1:30 p.m. CST on Sunday, February 7, 2021

Sign up using the Judges Registration page, or send an email to [email protected] including the following:

  • Your name
  • Which rounds you can judge
  • Time in legal practice
  • Whether you have past mock trial judging experience (not required) 
  • Whether you would prefer to be presiding judge or scoring judge (if you have a preference)

Brief zoom training sessions will be provided for any first-time judges. On the sign-up, you’ll be prompted to sign up for a live online training session. However, if you can’t attend the training live, you will be provided with a recording. If you have any questions about this tournament, contact Elicia L. Vernon at [email protected] or call 817/272-6796.

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 Diane Beckham.