U.S. Fifth Circuit Court of Appeals
No. 19-30197 4/21/20
Are prosecutors who use fake subpoenas (documents purportedly issued only under the seal and authority of the elected prosecutor’s office) to pressure crime victims and witnesses to meet with them outside of court absolutely immune from §1983 damages claim?
No. Prosecutors who use “fake subpoenas” to get uncooperative victims or witnesses to come to their offices for investigative purposes do not have absolute immunity against being sued—at least not at this early point of the §1983 claim. State prosecutors are absolutely immune from §1983 damages claims based on activities “intimately associated with the judicial phase of the criminal process.” Here, because the prosecutors issued the subpoenas without court supervision, they operated free of “the checks and safeguards inherent in the judicial process.” Read Opinion.
No one wants to be a defendant in federal district court. Fake documents have no valid purpose in anyone’s trial prep. Indeed, in Texas, generating a fake subpoena might be a class A misdemeanor under Penal Code §32.48.
Texas Supreme Court
No. 20-0291 4/23/20
Do the judicial plaintiffs (16 Texas trial judges) have standing to challenge GA-13 on the grounds that GA-13 is unconstitutional and improperly interferes with their judicial authority to make individualized bail decisions?
No. The Court concluded that the judicial plaintiffs lack standing to challenge the validity of GA-13 because they have not alleged a personal, legally cognizable injury required for standing. Even if criminal prosecution of judges were genuinely threatened, the plaintiffs offer no reason to doubt that long-established principles of judicial immunity provide adequate protection. Therefore, the trial court lacked subject-matter jurisdiction to issue a temporary restraining order in their favor. Read Opinion.
This will not be the last we hear about GA-13. This round goes to the Governor and the AG.
Court of Criminal Appeals
No. PD-1382-18; No. PD-1265-18 & Nos. PD-0013-19, 0014-19, 0015-19 4/29/20
Must the State prove commission of bigamy to enhance punishment of sexual assault under Penal Code §22.011(f)?
No. In separate, but identical opinions for each defendant, the Court held that the State does not have to prove commission of bigamy to trigger the enhancement under §22.011(f). Section 22.011(f) requires the State to prove that the defendant was legally married to someone other than the victim at the time of the sexual assault and would be guilty of bigamy if he were to marry or purport to marry the victim or live with the victim under the appearance of being married. It does not require proof that the defendant actually committed bigamy. Read Opinion.
Concurring (Keasler, J., joined by Hervey, J.):
“I would join the Court’s opinion, but there is one issue that I think the Court, striving for concision, oversimplifies. In determining whether the plain meaning of Texas Penal Code §22.011(f) would lead to absurd results the Legislature could not possibly have intended, the Court notes our 2018 opinion in Estes v. State, 546 S.W.3d 691, 701 (Tex. Crim. App. 2018). In so doing, however, the Court miscasts Estes’s reasoning. I write separately to set the record straight.” Read Opinion.
This decision solidifies the bigamy enhancement as a usable tool in child abuse prosecution cases. This decision will broadly impact dockets, jails, and prisons.
Texas Courts of Appeals
No. 01-19-00688-CR 4/23/20
May a trial court order the State to pay $500 in attorney fees to defense counsel as a sanction to a purported discovery violation?
No. Imposing monetary sanctions for violations of Code of Criminal Procedure Art. 39.14 is not authorized by the statute. Moreover, the Court was unable to find a court case or statute where a monetary fine against the State for failure to produce evidence in a criminal case has been included among the sanctions available to discourage discovery violations. Read Opinion.
Expect to see more opinions like this as the courts reach disputes at the boundaries of the Michael Morton Act. Police personnel files generally are not part of the prosecution file, but they may be important to the citizen accused. Was the trial court punishing the prosecutors for asserting rights of an officer witness? Don’t be surprised if this case is reviewed at the Court of Criminal Appeals.
No. 02-19-00307-CR 4/23/20
After obtaining a warrant to draw a defendant’s blood based on probable cause that he was driving while intoxicated, must officers obtain a second warrant authorizing a test to determine the blood’s alcohol concentration?
No. The defendant’s blood was drawn pursuant to a warrant based on probable cause to believe that he was guilty of the offense of driving while intoxicated. At that point, he had no reasonable expectation of privacy that required a second warrant to test the sample to determine its blood-alcohol content. Read Opinion.
The Fort Worth court of appeals strongly joins the court of appeals who have rejected the argument that testing blood obtained via a search warrant requires specific authorization to test in the warrant or a separate warrant authorizing testing. Remind trial judges that Article 38.35 authorizes testing of evidence seized during an investigation, which will help undermine claims that defendants have ongoing privacy interests in criminal evidence.
Texas Attorney General Opinions
Are a constable’s private statements and seeking signatures on a petition to place his name on the ballot for sheriff considered “candidacy” or an “announcement” for the purposes of the automatic resignation provision under Art. XVI, §65 of the Texas Constitution?
No. A court would likely conclude that the Kenedy County Constable did not announce his candidacy under Art. XVI, §65 by virtue of his statements and the actions described. Art. XVI, §65 provides for the automatic resignation of an officer who announces candidacy for another office of profit or trust at any time when the unexpired term of his or her office exceeds one year and 30 days. An “announcement” under this provision must be both certain and public. Read Opinion.