U.S. Fifth Circuit Court of Appeals
Smith v. Heap
No. 21-20329 4/14/22
Issue:
Did a trial court correctly deny a defendant’s (a Harris County constable) motion to dismiss where he was entitled to qualified immunity and Texas law protected him from tort claims arising from an investigatory stop of the plaintiff (the Waller County Constable)?
Conclusion:
No. The court concluded the defendant was entitled to qualified immunity on the federal claims under 42 U.S.C. §1983 for excessive force, illegal search and seizure, and supervisory liability because no constitutional violation was pleaded. While facts indicated the defendant was not present for the stop, reasonable suspicion supported the stop by other deputies where a 911 caller reported that the plaintiff pointed a gun at him while driving on a tollway, and the encounter lasted 1 minute and 47 seconds. In addition, the plaintiff did not sufficiently establish an injury resulting from the alleged excessive force. The deputies approached the plaintiff’s vehicle with weapons drawn, which was reasonable based on the type of call the deputies were responding to. Moreover, because the plaintiff did not adequately plead any constitutional violation, the defendant could not be liable for supervisory liability. As for the state tort claims (defamation and intentional infliction of emotional distress), the Court held they were barred by two statutory immunity provisions under Tex. Civ. Prac. and Rem. Code §101.106(a) and (f). Read opinion.
Commentary:
It is difficult to tell how this case got this far, even based upon its somewhat unusual facts. The qualified-immunity issue was very easy to address and resolve against the plaintiff/constable. The Fourth Amendment issue was likewise easy to resolve because a citizen/911 caller reported that the plaintiff/constable had pointed a gun at him. The citizen/caller may not have been truthful, but the report was certainly sufficient reasonable suspicion to allow the officers to stop the plaintiff/constable and investigate. For 1 minute and 47 seconds.
Texas Courts of Appeals
In re Crisp
No. 08-21-00010-CV 4/14/22
Issue:
Did a prosecutor in a civil commitment case make an improper jury argument when he asked the jury to consider whether they’d want to be left alone with the defendant if there was an 11 percent chance he would commit another sexual assault?
Holding:
No. The prosecutor’s comment was posed to get the jury to consider the defendant’s risk of reoffending, which was the purpose of the civil commitment proceeding. The comment was based on evidence of results from the defendant’s Static-99R test, which “assess[es] a person’s risk for subsequent conviction of a sexual assault.” In addition, even if the argument was improper, the defendant still invited the error when his defense attorney warned the jurors in final arguments that the State would be discussing the 11-percent risk. Read opinion.
Commentary:
This decision will be useful to civil-commitment prosecutors. The decision follows previous similar civil-commitment decisions, as well as civil case law on proper argument. Although the law is certainly similar, prosecutors should not look to this decision for the proper type of argument to make in criminal cases. In criminal cases, similar arguments could be—could be—a proper plea for law enforcement. But it is better to look to the criminal case law for guidance on permissible arguments related to a plea for law enforcement.
Texas Attorney General Opinion
KP-0404 4/14/22
Issue:
Does the Texas Constitution prohibit a candidate for state judicial office from running for reelection if he is 74 on the date of the election but will turn 75 before his term commences?
Conclusion:
Yes. Art. V, §1-a of the Texas Constitution imposes a mandatory retirement on judges who reach the age of 75. A judge who would turn 75 prior to the beginning of his next term may not run for reelection for another term. Read opinion.
Commentary:
As noted, this opinion does not deal with judges who turn 75 during their next term. This opinion also does not deal with the appointment of judges who are 75 or older as retired judges (although the opinion notes that practice is permissible under the appropriate statute). As noted by the opinion, the law is well-settled regarding the question that the opinion does answer—whether a judge is eligible for office if he will turn 75 before the next term begins.
Hinton Memorial Scholarship Reminder
Want to go to the 2022 TDCAA Annual Criminal and Civil Law Conference but don’t have the funds? Just a reminder that the Foundation, through generous gifts in memory of Mike Hinton, can provide you with a scholarship! All you need to do is fill out the application HERE and send it in. Questions? Just call Rob at 512/971-8425. But hurry, applications are due April 30.