Texas Courts of Appeals
No. 04-13-00366-CR 5/14/14
In light of McNeely and the Supreme Court’s vacating and remanding Aviles, does Texas’s implied consent and mandatory blood draw statutory scheme constitute an exception to the Fourth Amendment’s warrant requirement?
No. The message conveyed by both McNeely and the remand of Aviles is that the Fourth Amendment prohibits per se, categorical exceptions to the warrant requirement. Texas’s implied consent and mandatory blood draw statutes amount to per se, categorical exceptions because they do not take into account the totality of the circumstances presented in each case; they consider only certain facts. Read the opinion.
The court conflates exigent circumstances and the implied consent statute, but consent is an entirely separate and well-accepted exception to the general requirement for a warrant. Just because the Supreme Court rejected exigency per se based upon alcohol dissipation does not mean that justices disapproved of irrevocable consent in limited cases. Because two of the three justices on the Aviles panel are also on this panel, it is unlikely that Aviles will conflict with this opinion. For those keeping score, the White Hats are down something like 6-0, but there is still an inning or two to play. The Court of Criminal Appeals should give the final word on this issue soon in State v. Baker, No. PD-13-1592, which was submitted on April 16, 2014.
Office of the Attorney General
May a district attorney’s office use asset forfeiture funds to purchase a building and land in its county and subsequently lease the building and land back to the county or other law enforcement agency?
No. A court would be unlikely to conclude that such a use was for an official purpose of the office. Read the opinion.
According to our research, the Office of the Attorney General has not issued an opinion approving a request to spend asset forfeiture funds since the 20th century. This is further proof of the adage that if you have to ask the AG, then you already know the answer.
May a person who has received judicial clemency for a conviction act as a surety on a bail bond? Read the request for opinion.
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