Texas Supreme Court

Ex parte K.T.

No. 20-0977                   5/13/22

Issue:

Is a defendant entitled to an expunction of his arrest records after being acquitted if he had a previous DWI conviction?

Holding:

Yes. Code of Criminal Procedure Article 55.01(a)(1)(A) entitles a person to have all arrest records expunged if the person is subsequently acquitted by a trial court. The expunction exception does not apply unless the State can show the “commission’ of at least two offenses to establish a criminal episode.” Here the defendant was acquitted for the subsequent DWI, making it ineligible as an offense under the exception requirements. Read opinion.

Dissent (Boyd, J.):

One of the ways in which “criminal episode” can be shown is outlined in Penal Code §3.01(2). A criminal episode includes “the commission of two or more offenses … [if] … the offenses are the repeated commission of the same or similar offenses.” The defendants in these similar cases were arrested twice for committing the same offense—DWI. Therefore, the expunction exception should apply. Read opinion.

Commentary:

For expunctions, the bottom line from this opinion is that if the defendant is acquitted of an offense, he or she has not “committed” that crime; thus, logically, that acquitted offense does not qualify as a “commission” for purposes of establishing a “criminal episode”—which is defined as “the commission of two or more offenses….”  This opinion explains that an acquittal may still be blocked from expunction, but only if the State is able to show that the defendant “committed” at least two other crimes along with the acquitted conduct, such that a criminal episode existed relative to all of the three or more crimes.

In re Abbott

No. 22-0229                   5/13/22

Issue:

Did a court of appeals correctly reinstate a district court’s temporary injunction restraining the Governor, the Department of Family and Protective Services (DFPS), its commissioner, and “any and all persons” from taking any action outlined in the Governor’s directive and DFPS’s statement made to the media related to a recent Attorney General Opinion indicating “sex change” procedures in minors constitute child abuse?

Holding:

Granting only partial relief to the State, the Court first held that the court of appeals exceeded its power by issuing an order applying to “any and all parties.” Rule 29.3 of the Texas Rules of Appellate Procedure allows only relief necessary to preserve the parties’ rights. As to the remaining issues, the Court summarized that the court of appeals’s order now protects the plaintiffs against DFPS and its commissioner’s actions. The Court further clarified that the Attorney General (through his opinion) and the Governor (via a statement to the media), “while within their rights to state their legal and policy views on this topic,” do not have the authority to direct DFPS’s investigatory decisions. Read opinion.

Concurrence (Lehrmann, J.):

Clarifying the effect of the Court’s holdings, the concurrence reiterates that “[n]either the interlocutory appeal of the trial court’s temporary injunction nor the merits of the plaintiffs’ underlying claims are affected by today’s decision.” Rather, the Court’s holdings “reinstate[] DFPS’s policies as they were prior to the February 22 directive, leaving DFPS free to screen and investigate reports based on its preexisting policies regarding medical abuse and neglect.” Read opinion.

Dissent (Blacklock, J., joined by Boyd and Devine, J.J.):

“[A]n injunction preemptively prohibiting the executive branch from even investigating the possibility that injury to a child may result from the disputed treatments is likely beyond the proper scope of the judicial power. The court of appeals’ injunction prohibiting any investigation of these matters by DFPS was an abuse of discretion, including as to the plaintiffs.” Read opinion.

Commentary:

It is important to note that this case—a civil lawsuit challenging whether a media statement by DFPS, premised upon a letter/directive to DFPS by the Governor, improperly announced a new agency rule without the notice-and-comment procedure required by law—is still in its infancy. Here, in response to a mandamus petition by the State, the Texas Supreme Court upheld the lower appellate court’s conduct in reinstating the district court’s injunction as it pertained to the actual plaintiffs in this lawsuit but determined that the appellate court lacked authority to give the reinstated injunction statewide effect. Accordingly, while this suit is pending, the plaintiffs are free from investigation by DFPS for supposed acts of child abuse stemming from the facilitation or provision of gender-affirming medical treatment to a minor child, but DFPS is able to investigate other such instances involving nonparties to this action. This means that separate, individual lawsuits (and separate, individual injunctions) will likely result from any DFPS investigations in this regard until the underlying claims in this lawsuit are resolved.

Texas Court of Criminal Appeals

Ex parte Rivers

No. WR-44,786-06                      5/18/22

Issue:

Is an inmate entitled to automatic mandatory supervision release for his first sentence (under the previous version of Gov’t Code §508.149) if he is ineligible for discretionary mandatory supervision for his second sentence (under the current version of Gov’t Code §508.149(b))?

Holding:

Yes. The correct reading of the amendment to the automatic mandatory release statute requires that the inmate be released; however, TDCJ must designate the inmate as being on “paper parole.” This means that because the inmate has a second conviction that does not qualify for automatic mandatory release under the amendment’s savings clause, the inmate must remain in the physical custody of TDCJ, and TDCJ must continue to calculate the inmate’s time for his second sentence. Read opinion.

Concurrence and Dissent (Yeary, J., joined by Slaughter, J.):

Continued confinement is the correct outcome in this case. However, a writ of habeas corpus should not be a vehicle to grant relief where the relief is only a “constructive release” that “does not go to either the fact or the duration of [the inmate’s] restraint.” Read opinion.

Commentary:

If you have never heard of the phrase “paper parole” before, join the club. Regardless, per this opinion, TDCJ cannot deny a defendant automatic mandatory supervision “release” (even if only in the form of a designation on paperwork) if the defendant is entitled to it simply because he or she is also serving time for a subsequent, concurrent prison sentence that does not allow mandatory supervision release (which became discretionary, rather than automatic, after Sept. 1, 1996). In reaching this conclusion, the Court of Criminal Appeals faithfully applied precedent that addressed this issue in the context of consecutive prison sentences. So, if you handle applications for writs of habeas corpus, you now have guidance for both scenarios.

Texas Courts of Appeals

Ex parte Moon

No. 01-18-01014-CR                   5/12/22

Issue:

On remand from the Court of Criminal Appeals affirming that the juvenile court improperly waived its jurisdiction (for not stating the reasons for waiving its jurisdiction and expressly setting out the findings of fact that supported its reasons), was the juvenile court permitted to subsequently waive its jurisdiction again after issuing its reasons and findings of fact?

Holding:

No. Family Code §54.02(j) requires that before the juvenile court may waive its jurisdiction and transfer the case to the criminal district court upon a motion by the State, the State must also prove that “no adjudication concerning the offense ha[d] been made and no adjudication hearing concerning the offense ha[d] been conducted.” Here, the juvenile was adjudicated guilty and sentenced in criminal district court; therefore, the only option the juvenile court had on remand was to dismiss the case because the defendant is now an adult and no longer a juvenile. Read opinion.

Commentary:

Expect that the State will seek discretionary review in the Court of Criminal Appeals and that the Court will likely grant the State’s petition. The lower appellate court’s determination that Moon’s conviction in his first trial in an adult district court—which was reversed—constitutes a previous adjudication for purposes of §54.02(j)(3) is novel and, therefore, will likely be of interest to the Court. Further, the lower appellate court rejected the State’s challenge as to whether Moon could bring his claims through the pretrial habeas corpus process, which the Court may also want to address. This case has a long, tangled history already and, with this opinion, the stage is set for the saga to continue. Stay tuned for the next chapter.