October 7, 2016

Fifth Circuit Court of Appeals

United States v. Toussaint

No. 15-30748      9/22/16


Did the police have exigent circumstances to stop a vehicle after a threat was made on the driver’s life?


Yes. Once police were made aware of a credible threat on the life of a driver, the fact that 45 minutes passed without incident before the stop did not mean the emergency was over. Read.


This is a very unusual fact situation that may never reoccur. But it is a very helpful application of the exigent circumstances exception and a rejection of the idea that a trial court should consider an officer’s subjective impressions. This decision is remarkable for another reason:  It is an appeal by the Government, in which case it is often difficult to win a suppression issue, even in federal court. Great job by the Eastern District of Louisiana.

Court of Criminal Appeals

Wright v. State

No. PD-1137-15                 10/5/16


Was it error to apply habeas harm analysis on a direct appeal where the defendant claimed his sentence was illegal?


No. Because the illegal sentence claim in the direct appeal was actually a collateral attack on the original sentence in the plea proceeding, the court applies the rules of a habeas exception. The defendant failed to show harm as required by Ex parte Parrott; thus, the court rejected his illegal sentence claim. Read.

Concurrence (Alcala, J.):

Judge Alcala agreed with the outcome of the case but wrote separately because she would not rely on habeas law to decide the case, as post-conviction law is designed to place more burdens on the defendant. She found the defendant’s sentence legal under traditional direct appeal analysis—the record shows the defendant knew and understood he was being punished for a 3rd degree felony and had a previous conviction to support the enhancement. Read.


It is troublesome that the majority opinion appears to concede that the State’s failure to plead the enhancement paragraph in the indictment in this case renders the sentence in this case illegal. In that regard, Judge Alcala’s concurring opinion appears to have the better analysis. The term “illegal sentence” should be reserved for those situations in which the sentence is truly outside the applicable range of punishment. The State wins here, but this decision opens up opportunities for lawyers and judges to apply habeas corpus law to all collateral attacks, whether they are post-conviction or not.


Office of the Attorney General

Letter from the Commissioner of Insurance

KP-0115                10/4/16


Under what circumstances do Texas courts afford deference to agency interpretations of statutes, and is notice-and-comment rulemaking given greater deference than an agency bulletin?


Texas courts will give deference only to agency interpretations that are adopted through formal rulemaking procedures; notice-and-comment rulemaking would be considered a formal adoption, while a policy bulletin would not. Additionally, a state court will defer to an agency interpretation only when the statute is ambiguous and the agency’s construction is reasonable and consistent with the statute’s plain language. Read.


This is actually a pretty thorough primer on administrative agency deference. Be warned:  You will be wading into some deep and unfamiliar waters if you start to read this; and it is not clear that this opinion actually resolved any real-world controversy. It appears that the opinion would prefer that a court in fact do that, which is probably best.


Letter from the Webb County Attorney

KP-0114                10/4/16


Can a member of a school board of trustees also serve on a city planning and zoning commission?


No. There is a conflict of interest in these two positions with regard to real property transactions. The board of trustees of an independent school district is authorized to acquire and hold real property, and it is foreseeable that such a property interest would be subject to action by the planning and zoning committee. Read.


This seems to be a straightforward application of Article 16, §40(a) of the Texas Constitution.

Request from the Lee County Attorney

RQ-0132-KP        10/4/16


What type of bond is required for a county attorney who performs the functions of both county and district attorney? Read.

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