Weekly Case Summaries: December 8, 2017

Texas Courts of Appeals

Fisk v. State

No. 04-17-00174-CR         12/06/17

Issue:

Are the elements of former UCMJ Article 125 for sodomy of a child sufficiently similar to Penal Code §22.011 to act as a prior for enhanced punishment?

Holding:

No. A defendant convicted of indecency with a child under Penal Code §21.11 who has a prior conviction for a sexual offense enumerated in Penal Code §12.42(c)(2)(B) receives a mandatory life sentence. A prior conviction under the laws of another state, or the UCMJ, may be used as an enhancement when the elements are “substantially similar” to the elements of an enumerated Texas offense. Article 125 encompasses a markedly different range of conduct, including prohibiting certain forms of consensual sexual activity between adults. The interests protected by UCMJ Article 125 are also different; Article 125 was designed to protect against a certain type of sexual activity, not to protect against sexual acts against children. Read opinion.

Commentary:

This decision represents an exhaustive application of the controlling authority from the Court of Criminal Appeals, and it appears to hold up because the UCMJ statute was directed only at specific types of sexual activity. Nevertheless, the Court of Criminal Appeals may still want to review this decision because it is unique.

Texas Attorney General Opinions

RQ-0196-KP        12/01/17

Request:

May handgun license holders carry handguns on the premises of a church that does not post signs excluding handguns? And are churches exempt from the private security fees charged to private institutions? Read request.

Commentary:

This request deals with a straightforward analysis of recently enacted statutory provisions and does not appear to be controversial. It is made in response to the recent tragic shooting at the church in Sutherland Springs.

RQ-0195-KP        11/29/17

Request:

Is the use or expenditure of civil asset forfeiture funds by a district attorney to purchase property insurance for a property awarded to the State as contraband while the appeal of the case is pending a use for official purposes of those funds pursuant to the Texas Code of Criminal Procedure Art. 59.06(c)(l)? Read request.

Commentary:

This opinion request is reasonable but not nearly as straightforward. It will require a much more exhaustive statutory analysis of Chapter 59 of the Code of Criminal Procedure and perhaps elsewhere. But it certainly does sound reasonable that a local authority should be able to insure real property that has been forfeited while that property is awaiting sale.

TDCAA is pleased to offer these unique case summaries from the U.S. Supreme Court, the Fifth Circuit Court of Appeals, the Texas Court of Criminal Appeals, the Texas Supreme Court, the Texas Courts of Appeals and the Texas Attorney General. In addition to the basic summaries, each case will have a link to the full text opinion and will offer exclusive prosecutor commentary explaining how the case may impact you as a prosecutor. The case summaries are for the benefit of prosecutors, their staff members, and members of the law enforcement community. These summaries are NOT a source of legal advice for citizens. The commentaries expressed in these case summaries are not official statements by TDCAA and do not represent the opinions of TDCAA, its staff, or any member of the association. Please email comments, problems, or questions to [email protected].