Fifth Circuit Court of Appeals
Rodriguez v. Vergara
No. 26-50183 10/23/26
Issue:
Do noncitizens who have not been admitted into the United States have a statutory or constitutional right to a bond hearing?
Holding:
No. On rehearing en banc, the Fifth Circuit concluded that the three petitioners were not entitled to individual hearings on their level of danger or flight risk before they could be lawfully detained by immigration authorities pending their removal proceedings, and the duration of their detention did not present any Fifth Amendment due process issues that called for habeas relief. The Court noted that immigration law distinguishes between “aliens” and “applicants for admission,” and aliens seeking admission have a limited ability to challenge their admission process on constitutional grounds. “[H]earings on Petitioners’ family connections in the United States, or their earning potential, or whether they drive American-made automobiles would be just as relevant to whether they may be detained under [8 U.S.C.] §1225(b)(2)(A). Which is to say, not relevant at all.” Read opinion.
Concurrence (Ho, C.J.):
“A nation ceases to be a nation if it can’t protect its borders. Congress has chosen to police our borders by detaining illegal aliens found in our country pending their removal proceedings (citation omitted). According to our dissenting colleagues, however, illegal aliens have not only a de facto constitutional right to remain in our country unlawfully, but [also] an incentive to make this their home.”
Concurrence (Oldham, C.J.):
“[A]t the time of the American Founding, the substantive law applicable to aliens in Britain was stingy to say the least. Aliens were deportable for any reason or no reason. They could be detained indefinitely without bail. And even the most powerful and prestigious foreigners in Britain were not immune from the law’s reach. So even if an alien could petition for habeas, the Great Writ only gave them the opportunity to hear a judge say: ‘You lose.’ America directly inherited this legal tradition.”
Concurrence (Richman, C.J.):
“To the extent the en banc court opines on what due process might require under different circumstances, it seems clear from the Supreme Court’s decisions in this area that ‘an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future.’”
Dissent (Southwick, C.J., joined by Stewart, Graves, Higginson, Douglas, and Ramirez, C.J.s):
“The majority has clearly and carefully explained its conclusion that those who have entered this country illegally, even those who have resided in this country for two decades, can be detained indefinitely during removal proceedings because of their illegal presence. With respect, I conclude this court has constructed an impenetrable wall between the Constitution and these long-term residents, a wall not designed, recognized, or even suggested by the Supreme Court.”
Dissent (Haynes, C.J.):
“I agree with the basic points set out in Judge Southwick’s dissenting opinion. My thought is, however, that this analysis should be limited to people like Petitioners—individuals who have resided in this country for more than 10 years, have no criminal history, and have close American relatives. In such situations, these individuals are entitled to important due process allowances, and the Government has not referred to evidence before Congress that would justify detaining individuals such as Petitioners. Accordingly, in these cases, I dissent.”
Dissent (Douglas, C.J., joined by Stewart, Graves, Higginson, and Ramirez, C.J.s):
“Following the Government’s lead, the majority opinion detonates the core of the Due Process Clause based on a case about whether sex offenders may be required to publicly register their names under state law (of course they can). Fortunately, constitutional law does not work on such rough analogies. Because the Due Process Clause has always protected against any arbitrary detention within the United States, and Petitioners challenged their detention without any meaningful procedure, I respectfully dissent.”
Dissent (Higginson, C.J., joined by Stewart, Southwick, Graves, Douglas, and Ramirez, C.J.s):
“I write separately to emphasize that we need not reach today’s constitutional issues and strip Fifth Amendment protections from Petitioners. We should have applied constitutional avoidance in Buenrostro-Mendez [v. Bondi, 166 F.4th 494 (5th Cir. 2026)] as the last, critical step of our statutory interpretation of [8 U.S.C. §§]1225 and 1226. We also could have done so today. But because we do not, the majority runs headlong into a series of difficult, and avoidable, constitutional conflicts.”
Commentary:
Though the majority and side opinions are interesting, their holding and discussions are essentially academic for state-level Texas prosecutors because they concern ICE (a federal agency) and whether 8 U.S.C. § 1225(b)(2)(A) (a federal immigration statute) violates the Due Process Clause of the Fifth Amendment of the United States Constitution—a purely federal issue. However, with broader perspective, the majority opinion is consistent with the prevailing current trend towards stricter interpretation and application of laws regarding bail, which manifests at both the federal and state levels.
Court of Criminal Appeals
State v. Suarez
No. PD-0866-24 10/29/26
Issue:
Was the lead detective’s belief that the defendant’s mother had authority to consent to a search of her apartment, including the defendant’s bedroom, reasonable?
Holding:
Yes. The Fourth Amendment permits a warrantless search when officers reasonably—though erroneously—believe a consenting individual has authority over the premises. After a shooting at a local park, officers spoke with witnesses and found a deceased 19-year-old in a pickup truck. Witnesses told officers that a 16-year-old had also been shot, and in the course of trying to find the 16-year-old, they conducted an emergency ping on the 16-year-old’s phone. The ping led officers to the apartment where the defendant and his mother lived, and where they found the 16-year-old. Believing that the 16-year-old might have left evidence in the apartment, they asked the mother for consent to search. The mother consented to officers conducting a walk-through of the apartment and then gave verbal and written consent for the officers to search the defendant’s room. Officers recovered a shotgun, pistol, bullets, bloody clothing, and a cell phone from the defendant’s room, and the defendant was charged with felony murder, possession of a prohibited weapon, and two counts of aggravated robbery. The trial court granted the defendant’s motion to suppress after the mother testified that although it was her apartment, she did not have access to the defendant’s room because he was (actually?) 18 and “[i]t was his privacy so nobody was allowed to go in there without his permission.”
The Court noted that the test for apparent authority to consent is whether “the facts available to the officer at the moment [would] warrant a man of reasonable caution in the belief that the consenting party had authority over the premises,” under Limon v. State, 340 S.W.3d 753 (Tex. Crim. App. 2011). The Court concluded that in this case, the officers acted reasonably. “Officers may reasonably presume [the defendant’s] mother shared common authority over the bedroom unless confronted with facts suggesting otherwise. In this case, the officers were not confronted with any facts that would call the consenting party’s authority into question.” Read opinion.
Commentary:
The critical timeframe for assessing whether an officer’s belief that a third party has apparent authority to consent to a search is at the time when the consent is given—not after the fact, such as during a suppression hearing when the third party has had a change of heart. In other words, if a third party consented to a search and the surrounding circumstances at the time of consent would reasonably enable an officer to rely on that apparent consent—but the third party later claims in a suppression hearing that he or she did not have actual authority to provide consent—the trial court should nonetheless uphold the search based on what the officer knew and could reasonably believe at the time of the third party’s grant of consent. If a trial judge is not inclined to do so, point out this case to the judge to help steer the discussion back towards appropriate application of the law.
Taylor v. State
No. PD-0877-24 10/29/26
Issue:
Does the Fourth Amendment require strict mechanical compliance with official police department policy for an inventory?
Holding:
No. Minor deviations—such as failing to get the defendant to sign a form and forgetting to ask if the defendant had any valuables—“are not the kind of deviations that would allow the police to utilize inventory searches as a pretext for criminal investigations. Moreover, it is understandable for police officers to forego obtaining physical signatures from arrestees [who] are handcuffed at the time of the inventory search. … To the extent that not everything in [the defendant’s] vehicle was catalogued in a written meticulously itemized report departmental policy did not explicitly require it.” The Court concluded that although “not ideal for all cases, it was sufficiently reasonable in this situation that the miscellaneous items in the rear were photographed and attached to the inventory report to demonstrate the condition of the vehicle’s interior and its contents.” Read opinion.
Dissent (Finley, J.):
“[L]aw enforcement failed to comply with the written policy of the Kyle Police Department (KPD) concerning inventory searches in two ways. First, the officer failed to search ‘all areas of the vehicle.’ Second, the officer failed to compile a written list or inventory of the vehicle’s contents. I would affirm the judgment of the court of appeals. Because the Court does not and instead greenlights a slippery slope of inventory search non-compliance, I respectfully dissent.” Read dissent.
Commentary:
As the CCA reminds us, the core of the Fourth Amendment is reasonableness. An inventory search may be reasonable under the Fourth Amendment, even if it is conducted without a warrant, so long as the inventory is not used as a “ruse for a general rummaging in order to discover incriminating evidence.” Police department policies governing how and when an officer may conduct an inventory search carry out the purposes of the inventory (i.e., protecting the police, the property, and the property owner) while safeguarding against fishing expeditions. This opinion very helpfully instructs that, although officers should generally adhere to their department policies, the inventory search can still be reasonable if an officer deviates from his department’s policy in minor ways that are not a pretextual and unlawful rummaging-style search—such as by photographing an extensive quantity of miscellaneous items in a vehicle, rather than identifying and listing each item individually. Even the Fourth Amendment agrees that a picture is worth a thousand words.
Texas Court of Appeals
State v. Wright
Nos. 14-25-00603-CR & -604-CR 10/27/26
Issue:
Did the trial court properly grant the defendant’s motion for new trial in the interest of justice based on ineffective assistance of counsel when the defense attorney failed to raise ineffective assistance in his motion for new trial?
Holding:
No. “[B]ecause [the defendant] did not assert ineffective assistance of counsel as a ground in his motion for new trial, and the State objected to the addition of more grounds, the trial court could not grant a new trial in the interest of justice based on ineffective assistance of counsel.” The defendant was convicted of aggravated assault of a family member (causing serious bodily injury with a deadly weapon) and burglary of a habitation with intent to commit aggravated assault after breaking into his ex-wife’s house and shooting her four times. The defendant filed a motion for new trial, contending that the verdict was contrary to the law and evidence, the evidence was insufficient, and the prosecutor’s final arguments improperly commented on the defendant’s failure to testify and injected new facts into the proceedings. The Court ruled that because sufficient evidence supported the verdict, the prosecutor’s arguments were not improper, and the defendant did not assert ineffective assistance in his motion for new trial, the judge improperly granted a new trial. The Court reversed the trial court’s order and remanded with instructions to reinstate the conviction and sentence. Read opinion.
Commentary:
A trial court may not use “in the interest of justice” as a catchall, independent basis for new-trial relief when the trial court sympathizes with the defendant or believes that the defendant got a raw deal at trial. Rather, a trial court may order a new trial only when: (1) the defendant articulates a valid legal claim in his motion for new trial; (2) the defendant produces evidence or points to evidence already developed in the record that substantiates his valid legal claim; (3) the defendant proves that the error underpinning his valid legal claim prejudiced him; and (4) pertinent to this case, trial court’s ruling to grant a new trial is actually premised upon the valid legal claim that the defendant asserted.
This is an excellent win for the State and provides strong ammunition for prosecutors arguing against a trial court granting a new trial on grounds that the defendant did not allege in the defendant’s motion for new trial.
Texas Attorney General Opinion Requests
RQ-0662-KP 10/23/26
Issue:
Does Election Code §85.062(f) permit a commissioners court to authorize a single branch polling place for early voting in a precinct outside the main polling place when all other precincts have no polling locations? Read opinion request.
Requested by:
Shane Deel, County Attorney in Callahan County