United States Supreme Court
No. 15-5040 6/9/2016
1) Is there unconstitutional bias when a judge has had an earlier significant, personal involvement as a prosecutor in a critical stage in the defendant’s capital murder case, and 2) is it unconstitutional for that judge to participate in a multi-member tribunal in reviewing that capital case, even when the judge’s vote is not decisive?
Yes and yes. During his time as district attorney, the now-state Supreme Court justice gave his official approval to seek the death penalty in the defendant’s case. Twenty-six years later, the justice denied the defendant’s motion for recusal from an appeal and participated in a decision to deny relief. Because the decision to pursue the death penalty is a critical stage in the adversarial process, the justice’s failure to recuse himself presented an unconstitutional bias. By failing to recuse himself, the judge committed a structural error that cannot be fixed by a harmless-error review, regardless of whether the judge’s vote was a deciding one. Read.
Dissent (Roberts, C.J.):
Justice Roberts pointed out neither the contested evidence nor the current habeas issues ever came before the justice during his time as the district attorney; therefore Justice Roberts concluded his involvement in the appeal does not violate the defendant’s rights under the Due Process Clause. However, while the Due Process Clause did not prohibit the justice from hearing the case, state court decisions and ethics opinions may have required recusal. Read.
Dissent (Thomas, J.):
Justice Thomas dissented because he believed the justice’s ruling on the current appeal is unrelated to the decisions he made on the underlying capital murder case when he was the district attorney. The judge at no time acted as counsel and judge on the same case, so Justice Thomas contended there is no Due Process violation. Read.
One would hope that, in Texas, an appellate court justice would recuse himself if he had previously acted as a prosecutor or as the elected District Attorney or County Attorney in a defendant’s case. In this case, the Supreme Court has moved ever closer to adopting a constitutional rule of recusal, meaning that it would not matter what a state’s recusal rules would be. Even if the state would not require a recusal, the United States Constitution might. Meanwhile, if a former prosecutor is serving on your appellate court, make sure that the appellate court is kept aware of his involvement in any case that comes before the appellate court, regardless of whether he is in a position to cast a deciding vote.
U.S. District Court for the Western District of Texas
No. EP-99-CV-320-KC 5/27/16
Was a sweepstakes game being operated by the Ysleta del sur Pueblo (as known as the Tigua) tribe a prohibited lottery or gambling device under Penal Code Chapter 47?
Yes. Although participants are not required to make a monetary donation to play the sweepstakes, at least some of them do make a donation payment to play the game. This, along with the fact that the sweepstakes is not promoting any product, and the true purpose of the sweepstakes is to play the game itself, proves the consideration element of a lottery. Additionally, because chance, prize, and consideration are all present, the sweepstakes kiosks are illegal gambling devices under Penal Code §47.06(a). Read.
This decision appears to be consistent with Texas state cases, so it should have at least some persuasive authority in state lottery and gambling device cases. The decision cites heavily a Texarkana Court of Appeals decision that had similar issues. If you want to get to that part of the court’s decision, skip the first three-quarters of this very lengthy decision, unless you really want to learn more about federal tribal law. The defendants in this case have long been involved in litigation concerning alleged illegal gambling and lottery activities, so it is doubtful that this is the last word.
Supreme Court of Texas
No. 14-0692 6/10/2016
Does the Code of Criminal Procedure preclude the State from initiating a civil-forfeiture proceeding based on an illegal search?
No. The exclusionary rule in CCP Article 38.23 does not apply to asset forfeiture proceedings under Chapter 59. Neither the Fourth Amendment nor Chapter 59 requires exclusion of illegally obtained evidence in civil forfeiture proceedings. The state is not required to prove lawful seizure as a prerequisite to a forfeiture proceeding; it is only required to show that the evidence is contraband subject to forfeiture. Read.
Concurrence (Devine, J., Hecht, C.J., Johnson, J., Lehrmann, J.):
The officer’s search of the vehicle was legal, and there is no need to rule on the legality of the contraband. Ultimately the question of whether the search of the car was lawful is a civil matter, even though it requires authority generally used in a criminal context, but the majority did not need to rule on that. The contraband and other evidence were legally obtained. Read.
Concurrence (Willett, J.):
The lines between the criminal and civil courts do not need to be blurred any more than they have to be. The exclusionary rule does not apply to civil cases, and this decision provides clarity on the issue for the lower courts. Read.
Issues concerning the legality of officers’ seizure of property to be forfeited will not be litigated in civil court in asset forfeiture proceedings. The Supreme Court acknowledges that Article 59.03 of the Code of Criminal Procedure does not permit law enforcement to seize property unlawfully, but that statute (nor Chapter 59 in general) does not provide a specific remedy for that allegedly unlawful seizure. The Texas Legislature is likely to attempt to address this issue in 2017, but meanwhile, remind your law enforcement agencies and officers that they may still be sued for such conduct.
Court of Criminal Appeals
No. PD-0290-15 6/15/16
Does a “finding” in the judgment that a victim was 3 years old at the time of an aggravated sexual assault require the defendant to be punished under Penal Code §22.021(f)(1)?
No. The court of appeals erred in finding that deferred adjudication in this case was improper because the mandatory minimum punishment for aggravated sexual assault of a 3-year-old victim was 25 years under §22.021(f)(1) and the defendant’s trial attorney was deficient for failing to tell the defendant about the correct range of punishment. There is no evidence in the record supporting the information that the victim was 3 years old or that the state or the judge intended to punish the defendant under §22.021(f)(1). Therefore, the trial court had authority to place the defendant on deferred adjudication, and on this record, defense counsel’s performance cannot be found deficient. Read.
This decision was rendered in the context of an ineffective assistance of counsel claim, in which the court of appeals had held that the defendant was not eligible for deferred adjudication probation. The bottom line is that, if you want an aggravated sexual assault defendant to subject to the higher (and more restrictive) punishment range, the state must allege that the victim was under 6 years of age. If you want more flexibility (as in this case), allege that the victim was younger than 14 years of age.
Courts of Appeals
Dunn v. State (14th COA)
No. 14-15-00340-CR 6/7/2016
In a prosecution for violating a protective order under Penal Code §25.07, must the State show that the magistrate made a separate record of service of the order under Article 17.292?
No. Article 17.292(j) of the Texas Code of Criminal Procedure states, “the defendant shall be served a copy of the order by the magistrate or the magistrate’s designee in person or electronically. The magistrate shall make a separate record of the service in written or electronic format…” Proof that the magistrate made a separate record is not an element of §25.07. The signature on the order certifying the appellant received a copy of the order is sufficient to show the magistrate complied with Article 17.292(j). Read.
This is a good decision for domestic violence prosecutors, ensuring that prosecutors will be held to the actual elements of the charged offense, and not the particular requirements of the protective order itself. All that the State is required to prove is the defendant’s knowledge of the order, which was clearly proved in this case.
In Re Gambling Devices and Proceeds (4th COA)
No. 04-15-00357-CR 6/8/2016
Can the State appeal an order returning seized property under Article 18.13 of the Texas Code of Criminal Procedure?
No. Code of Criminal Procedure Article 44.01(a) does not allow the State to appeal an order returning seized property under Article 18.13. Read.
Cases have previously permitted the State to appeal from an adverse ruling under Article 18.18, and courts in those cases treated the appeal as a civil appeal. For some reason, the court of appeals in this case treated the State’s appeal from an order issued under Article 18.13 as a criminal appeal. But this holding may still hold up on discretionary review because it may in fact be consistent with other attempts to appeal from orders returning seized property. Stay tuned.
Office of the Attorney General
No. KP-0094 6/15/16
To what extent may a judge apply the laws of a jurisdiction outside the United States in family law matters?
In general, under Texas law, a court should not enforce a foreign law if that enforcement would be contrary to Texas public policy or if it “violates good morals, natural justice, or is prejudicial to the general interests of our own citizens.” Read.
The request was not focused upon a particular issue or question of Texas state law, but it instead presented a large number of hypothetical (albeit related) questions. Therefore, the opinion is quite thorough, but it is not clear to what extent of these eventualities might actually occur in reality, nor to what extent it will remove the need for the opinion requestor to file another anti-Sharia, “American Laws for American Courts” bill like the one he filed (but failed to pass) last session.