TDCAA Weekly Case Summaries June 10, 2022

Texas Courts of Appeals

In re the Texas Department of Family and Protective Services

No. 04-22-00040-CV   6/1/22

Issue:

Does a trial judge have the power to order the Texas Department of Family and Protective Services (TDFPS) to enter into child-specific contracts with specific child-placing agencies?

Holding:

No. The Texas legislature vested sole authority in TDFPS to negotiate and execute child-specific contracts. The judge interfered with the powers of the legislative branch when ordering TDFPS to submit written offers to specific child-placing agencies. “[T]he trial court lacked the authority—constitutional, statutory, inherent, or otherwise—to require” TDFPS to submit written offers to specific child-placing agencies for a specific child. Read opinion.

Commentary:

This is a separation-of-powers case, and the court outlines the authority of the trial court in these cases under the Family Code and the power of the Department under the Human Resources Code (along with some case law). As such, there may be little application outside the scope of this type of case. But the court does reference a trial court’s constitutional, statutory, and even inherent authority. If you handle TDFPS cases, you definitely need to read this decision. As a civil mandamus decision, the court also finds that the trial court’s orders were void. Therefore, there was no need for the Department to show that it did not have an adequate remedy at law.

State v. Conatser

No. 05-21-00061-CR   6/1/22

Issue:

Did a trial judge correctly apply the Barker v. Wingo factors in determining that the State violated the defendant’s right to speedy trial?

Holding:

No. Two causes were primarily responsible for the delay: 1) an unexplained delay by the Austin DPS lab in not sending drug testing results completed in May 2020 to the prosecutor’s office until March 25, 2021; and 2) restrictions on court proceedings during the COVID-19 outbreak. A delay involving managing State resources (similar to a backlog of cases) weighs only slightly against the State, and delay “caused by the onset of a pandemic cannot be attributed as fault to the State.” Read opinion.

Commentary:

This is a rather brief speedy-trial decision, but the court addresses each of the factors well. This decision could be of use to future prosecutors if confronted with delays caused by a lab or by the COVID pandemic. As with many speedy-trial cases in which the State has prevailed, this defendant’s claim was also doomed when he never actually asserted his right to a speedy trial, but only eventually moved to dismiss. The defendant alleged some harm, but he could point to no harm as a result of the delay.

TDCAA Research Attorney

TDCAA is seeking applicants for our entry-level research attorney position. This is a two-year position modeled upon judicial clerkships. The annual salary is $55,000 (health plus benefits).

            Basic Job Description

The research attorney’s primary responsibilities are to:

• research and respond to requests for legal assistance from prosecutors across the state; and
• generate, distribute, and archive the association’s weekly case summary emails.

In addition, the research attorney may be asked to:

• post updates to the TDCAA website;
• monitor and administrate TDCAA’s online discussion forums;
• write and edit articles for inclusion in TDCAA publications;
• present topics for MCLE credit at TDCAA conferences;
• respond to inquiries from non-member judges, law enforcement officers, legislators, or similar officials; and
• perform various other duties suitable for an entry-level position in a small law office.

            Requirements

Applicants must:

• demonstrate an interest in prosecution as a profession;
• be a recent (within the last year) graduate of an accredited law school with a J.D. or equivalent degree; and
• either be:
  • licensed to practice law in Texas and be in good standing with the State Bar; or
  • awaiting results from taking the most recent Texas bar exam; or
  • studying to take the next regularly scheduled Texas bar exam.

Applicants should:

• be proficient in electronic legal research (such as Lexis/Nexis);
• be able to manage a considerable load of active research projects and consistently satisfy deadlines in the face of competing time demands;
• possess superior communications skills for dealing with co-workers, association members, and the general public in a professional and courteous manner;
• be prepared to submit to a background investigation or drug test, including a review of any criminal history information in the applicant’s past;
• be willing to commit to employment at TDCAA through October 2023 before seeking subsequent employment elsewhere; and
• not have any significant prior experience as a prosecutor or criminal defense attorney.

Interested candidates should email a letter of interest and resume in PDF format to Senior Staff Attorney Diane Beckham.