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As the Judges Saw It
May-June 2008

As the Judges Saw It

David C. Newell

Assistant District Attorney in Harris County

Questions
1

A jury convicted James Crook in a single criminal action of 13 counts of barratry which arose out of the same criminal episode. In each count, the jury assessed punishment at 10 years’ confinement with a recommendation of community supervision. The jury also assessed a $10,000 fine on each count without a recommendation of probation for this portion of Crook’s sentence. The trial court placed Crook on probation for seven years on each count and ordered these periods of probation to run concurrently. The trial court also ordered the $10,000 fines to run concurrently. The State appealed, claiming that the trial court could not order fines to run concurrently.

How much does Crook owe?

$10,000 _____ $130,000 _____

2

Police found Adriane Otto behind the driver’s seat of her maroon van stopped on the side of the road with the car running. Otto was asleep, slouched back, and shirtless. One officer awakened her with a “sternum rub.” Startled, she awoke. She voiced her displeasure to the officers in colorful language. When she got out of the van, she appeared unsteady and confused. She smelled of alcohol, admitted she had had a lot to drink, and failed the HGN test. She did not provide a sample of her breath.

The State charged her with felony DWI with the intoxication based on alcohol alone. During the trial, Otto admitted to drinking two glasses of wine at dinner. But she claimed she went to a sports bar afterward, and a guy had slipped something in her drink. In response to this testimony, the State requested a concurrent-causation instruction in the jury charge. The charge allowed the jury to hold Otto criminally responsible for her intoxication if it found beyond a reasonable doubt that the intoxication would not have occurred but for the defendant’s conduct, as charged in the indictment, operating either alone or concurrently with another cause. Is the inclusion of this instruction proper?

yes _______ no_______

3

Tom Coleman testified in an evidentiary hearing on writs of habeas corpus filed by four of the “Tulia” defendants who sought to challenge their convictions. Swisher County District Attorney Terry McEachern represented the State during those hearings as well as the underlying criminal prosecutions. After the hearing, an investigation began into possible perjury charges against Coleman. McEachern requested a special prosecutor be appointed to handle the cases against Coleman. The trial court granted McEachern’s recusal motion and appointed two attorneys, Rob Hobson and John Nation, “as special prosecutors to engage in all acts necessary to present the Swisher County Grand Jury in any cases concerning offenses involving Tom Coleman, and if said cases are true-billed, to engage in any acts necessary to prosecute Coleman.”

Five and a half months later, the trial court granted Coleman’s motion for continuance to allow a newly added defense attorney to become familiar with the case. Coleman requested and received another continuance because one of the attorneys had a personal matter, and the trial was set for January 2005. McEachern’s term of office ended December 31, 2004; the newly elected district attorney, Wally Hatch, took office on January 1, 2005. Six days later, Coleman’s counsel filed an objection to the special prosecutors and moved for their recusal, explaining that the conflict of interest that had required their appointment no longer existed. Because Hatch was no longer disqualified, Coleman reasoned, the trial court no longer had the authority to continue the appointment of the attorneys pro tem.

Do the attorneys pro tem stay or go?

stay ______ go ______

4

A jury convicted Jose Angel Moreno of capital murder and sentenced him to death in 1987, two years before the United States Supreme Court decided Penry v. Lynaugh (Penry I). In his initial application for writ of habeas corpus, he argued that the jury charge did not empower the jury to give effect to his mitigation evidence, basing his argument on the United States Supreme Court decision in Penry I. The convicting court recommended that the Court of Criminal Appeals deny relief because the jury could adequately consider the mitigation evidence within the ambit of the future dangerousness special issue instructions the trial court gave them. In 2000, the Court of Criminal Appeals denied relief.

Moreno did not carry his Penry claim from the initial writ to the federal petition. The Fifth Circuit affirmed the denial of relief and the Supreme Court denied cert. in January 2007. In April 2007, the United States Supreme Court revisited Penry I and its progeny in two Texas cases, Abdul-Kabir v. Quarterman and Brewer v. Quarterman. The Supreme Court held that Texas jury instructions in the wake of Penry I (or at least the ones used in those cases) did not give meaningful effect to the defendant’s mitigation evidence. Moreover, the Supreme Court held that the Court of Criminal Appeals’ denial of relief in those cases was contrary to and an unreasonable application of clearly established federal law.

Moreno, armed with these cases, filed a subsequent writ complaining about the jury instructions in his case. Equally divided as to how to dispose of Moreno’s second application, the Court of Criminal Appeals entered an order announcing that it would take no action on the subsequent writ. The next day, Moreno filed a “suggestion” that the court reconsider the Penry claim from Moreno’s initial writ on its own initiative pursuant to Rule 79.2 of the Texas Rules of Appellate procedure.

Can they do that?

yes _______ no _______

5

Police asked Mark Ramos to come downtown for questioning about a drive-by shooting. The officer placed Ramos in handcuffs before driving him to the station. When they got there, the officer removed Ramos’s handcuffs and placed him in an interview room. The detective read Ramos his Miranda warnings, and Ramos indicated he understood them. The officer also told Ramos that he was not under arrest. Ramos agreed to talk to the police and initially denied involvement in the offense. After 45 minutes, the detective left the room to consult with his partner who indicated that Ramos’s girlfriend had given Ramos up as the shooter. When the detective confronted Ramos with this tidbit of information, Ramos laughed and said his girlfriend would never say that. The detective then told Ramos that he could probably get a warrant based on the girlfriend’s statement. Ramos became angry and said he didn’t want to talk to the detective and he didn’t want to talk about “it” anymore. The detective left the room for five minutes. He came back in the room with his partner who said that it would be better if Ramos told the police what really happened. Ramos orally confessed to the crime and gave a written statement after the detective read Ramos his Miranda rights a second time.

At the suppression hearing, Ramos’s sister testified that the officer who transported Ramos downtown had demanded that Ramos go downtown for questioning instead of asking if he would do so. The trial court made the factual finding that Ramos was in custody during questioning.

Did Ramos unambiguously invoke his right to terminate the interview?

yes _______ no _______

6

Gerardo Flores got his girlfriend, Erica Basoria, pregnant. An ultrasound revealed that she was carrying twins. Basoria told her doctor that she was considering an abortion, but her doctor said that the pregnancy was at such a late stage that he could not perform the abortion safely. Basoria showed pictures of the ultrasound to one of her teachers and appeared very happy about having children. She delivered the twins prematurely at her home. They were stillborn and had been dead in utero for at least a day before they were delivered. An autopsy showed that they had been killed by some form of blunt force trauma. When Basoria went to the hospital the day after the delivery, the doctor noticed bruises on her upper arms, a small bruise on her face, and a line of purplish bruises across her abdomen. Basoria testified that Flores had reluctantly agreed to help her terminate her pregnancy by stepping on her abdomen. Basoria also indicated that she took several steps to induce the deaths of the fetuses, namely by increasing her walking and jogging regiment and repeatedly hitting herself in the belly. Her expert testified that the bruises on her abdomen looked like they had been self-inflicted.

The State charged Flores, Basoria’s boyfriend, with capital murder of two unborn children. Flores argued that the statute—which excused Basoria’s conduct, but not his—violated the Equal Protection Clause of the United States Constitution. Did it?

yes _______ no _______

7

The State charged Bryan Keith Watkins with burglary of a habitation. During voir dire, the State used peremptory challenges on two African-American veniremembers, saying that it struck a juror No. 13 because she stated she would have trouble giving a life sentence and would need overwhelming evidence to reach that. The record did not reveal that the prospective juror said this, but it did reflect that a female juror on the first row needed to hear “the right facts” before she could assess a life sentence.

The State also struck another prospective juror who, before the defense rehabilitated her, indicated that she would hold the State to a burden of proof beyond a reasonable doubt to assess a life sentence. The State struck seven of the eight African-American jurors capable of being reached, with the eighth serving as an alternate. The State questioned nine jurors specifically about circumstantial evidence cases, four of whom were African-American. In this manner, the State singled out African-American jurors for questioning at twice the rate one would expect from random selection. However, when the State questioned the jurors regarding punishment, the State singled out 14 veniremembers, none of whom were African-American. While the State exercised peremptory strikes against juror No. 13 because the State believed she would have a difficult time considering a life sentence, the State also struck two non-African-American jurors for the same reason. The State did not strike the only other non-African American juror who expressed similar hesitation. During the Batson colloquy, the trial court actually found one of the State’s peremptory challenges impermissible and seated the juror.

On appeal, Watkins asked the court of appeals to take judicial notice of a study commissioned by the Dallas Morning News newspaper that he contended showed a continuing pattern on Dallas County’s part in exercising peremptory challenges in a racially discriminatory manner.

Were the State’s race-neutral explanations for its peremptory challenges a pretext for race-based exclusion?

yes _______ no_______

8

A jury convicted Jimmy Lucero of murdering three members of a neighborhood family in the same criminal transaction. Jurors answered the special issues, and the trial court sentenced him to death. Lucero filed a motion for new trial alleging that the jury had engaged in misconduct when the foreman read Biblical scripture to the jury at the beginning of the punishment-phase deliberations. Though the motion failed to provide adequate citation, the passage in question addressed a Christian’s duty to obey and consent to the laws of man. Lucero supported his claim that this Bible reading coerced two jurors into changing their votes on the special issues by attaching an affidavit from juror No. 7. Lucero claimed that this Bible reading amounted to an “outside influence” that jurors could testify about, and Lucero demanded a hearing on his motion for new trial. The State responded with affidavits from all 12 jurors indicating that the Bible passage had no effect upon their hours-long jury deliberations.

Was the reading of a section of the Bible an “outside influence” sufficient to require a motion for new trial hearing on jury misconduct?

yes _______
no _______
God only knows _______

9

In 1994, a jury convicted Jose Medellin of capital murder for his role in the brutal rape, murder, and robbery of 16-year-old Elizabeth Pena and 14-year-old Jennifer Ertman. He had given a full confession after having been arrested and Mirandized. Four years later, Medellin complained that he, as a Mexican national, had not been informed of his right to consular notification under the Vienna Convention after his arrest. (He had received consular assistance, but he hadn’t been notified of his right to consular notification within the three days contemplated by the treaty.) The Court of Criminal Appeals denied Medellin’s request for relief because he had not raised the issue at trial and, alternatively, because he, as a private individual, did not have the right to enforce the treaty.

Mexico brought suit against the U.S. for the enforcement of the treaty in the International Court of Justice on behalf of 51 Mexican nationals who claimed that their convictions violated the Vienna Convention; Medellin was one of them. The I.C.J. held in Cases Concerning Avena and Other Mexican Nationals (Avena) that these 51 individuals were entitled to reconsideration and review of their convictions regardless of whether the claims were procedurally barred.

President Bush sent a letter to the Attorney General indicating that the United States would discharge its obligations under the treaty by having the state courts give effect to the I.C.J.’s decision.

The Supreme Court then decided that the Vienna Convention did not preclude the application of state default rules in Sanchez-Llamas, a case involving the Vienna Convention and two individuals not named in the Mexican suit against the U.S.

Then, the Texas Court of Criminal Appeals dismissed Medellin’s Vienna Convention writ as an abusive writ because Medellin had failed to timely raise his Vienna Convention claim under state law. So who wins?

President _______
Texas _______
I.C.J. _______

10

Eduardo “Waldo” Garcia Bazan committed the 3rd-degree felony, theft of a public servant. He was subsequently elected as Hidalgo County Constable. After the election, he was convicted and sentenced to seven years’ probation with a $3,000 fine. The Local Government Code calls for the immediate removal of the county officer upon such a conviction. However, the Texas Supreme Court had previously interpreted §87.001 of the Local Government Code as prohibiting the removal of a county officer “for an act the officer committed before election to office.” This section is regarded as the codification of the “forgiveness doctrine.” Bazan filed a writ of mandamus in the Texas Supreme Court asking that the removal order be set aside based upon §87.001 and the Supreme Court’s precedent in Talamentez v. Strauss.

So what should the Supreme Court do?

forgive him ____ forget it ____

Answers

1

$10,000. The Court of Criminal Appeals affirmed the trial court’s order “running” the sentences concurrently, meaning that Crook must pay only the single highest total fine rather than the total of the fines. Under §3.03 of the Penal Code, sentences must run concurrently when a defendant is found guilty of more than one offense arising from the same criminal episode prosecuted in a single action. The court went on to explain that the fine is part of the sentence, so then multiple fines must “run” concurrently just like multiple terms of confinement also must run concurrently. The court also dispensed with the argument that the term “run” necessarily applied only to terms of confinement because terms of confinement involve the passage of time. According to the four-judge opinion, nothing in the legislative history of §3.03 indicated that the legislature ever took the position that §3.03 should not apply to fines. That 100 years of caselaw which require fines to “run” consecutively? Those cases were either decided before the legislature wrote §3.03 or they were based on cases that were decided before the legislature wrote §3.03.

Presiding Judge Keller concurred but did not explain why. Judges Holcomb, Johnson, and Cochran explained in a dissenting opinion that the previous version of 3.03 matched the current version in this area, and the court had interpreted the previous version as allowing trial courts to cumulate fines. Thus, by re-enacting the provision with the same language, the legislature implicitly approved of the judicial interpretation that allowed trial courts to cumulate fines. According to this dissent, the majority failed to apply common sense to the word “run” and relied upon the absence of a discussion in the legislative sessions to support its position.

Judge Cochran also wrote her own dissent, which can really be summarized in the first sentence: “Time runs; money is paid.” She also expressed concern that this decision could apply to traffic tickets (remember Crook is a barratry case, not a traffic violation), but some have suggested that it may not apply to traffic tickets because each traffic offense generates a separate complaint. Regardless of whether it applies, this case could result in either higher fines or fewer consolidated cases.

The court has denied rehearing, so we’ll see if the legislature wants to run with this interpretation, or if legislators want courts to run from it. State v. Crook, ____ S.W.3d _____; 2008 WL 313626 (Tex. Crim. App. February 6, 2008)(4:1:4).

2

No. Applying the concurrent-cause instruction to intoxication impermissibly authorized the jury to convict Otto if it believed she was intoxicated by a combination of alcohol and another substance. A jury charge improperly expands upon allegations in an indictment when it defines intoxication in terms of introduction of alcohol, drugs, or a combination of both despite language in the indictment that alleges intoxication as the introduction of alcohol alone. In contrast, if the charge says the combination of drugs and alcohol made the defendant more susceptible to alcohol, it does not improperly expand upon the allegations in the indictment.

The dissent argues that the inclusion of the “but for” language in the concurrent causation instruction meant the State still had to prove that the defendant would not have been intoxicated but for her ingestion of alcohol. The majority dismissed this argument by explaining that the instruction still included the language “operating alone or concurrently with another cause” which brought it in line with the “combination” instruction held impermissible under Rodriguez. The dissent also suggested that this holding essentially invalidates all concurrent causation instructions that have not been pled in the indictment even though the court had previously held that concurrent causation does not need to be alleged in the indictment. The majority had no answer for this. Perhaps at some point, the court will recognize that a way out of this “Dickensian hair-splitting” can be found in overruling the requirement that the State allege a specific type of intoxicant in the charging instrument. As it stands now, however, the State cannot apply concurrent causation to the type of intoxicant in a DWI case. Otto v. State, ____ S.W.3d ____; 2008 WL 313942 (Tex. Crim. App. February 6, 2008)(5:1:2).

3

Stay. The appointment of an attorney pro tem lasts until the purposes contemplated by that appointment are fulfilled, regardless of the duration of the district attorney’s disqualification. The court had previously held that Article 2.07, which authorizes the appointment of an attorney pro tem, encompasses the performance of all “germane functions of the office contemplated by the appointment.” Thus, the appointment lasts until the job is done, not until the disqualification is removed. Coleman argued that the plain language of Article 2.07 authorizes the appointment of counsel only “during” the district attorney’s qualification. The court rejected this argument, noting the decision not to modify the appointment order was within the trial court’s sound discretion, and Coleman did not demonstrate how his rights had been adversely effected by the continued appointment.

Presiding Judge Keller, along with Judges Keasler and Hervey, concurred in the decision but disagreed with the majority’s conclusion that the trial court has discretion in this circumstance. Specifically, Keller questioned whether a trial court could continue the appointment of the attorneys even if doing so would run contrary to the wishes of the elected district attorney. But because the court did not need to resolve that issue to uphold the trial court’s actions in this case, Judge Keller decided to concur and otherwise let the issue go. Coleman v. State, ____ S.W.3d _____; 2008 WL 313818 (Tex. Crim. App. February 6, 2008)(6:3:0).

4

Yes they can. Rule 79.2 of the Texas Rules of Appellate Procedure by its own terms and without temporal limitation authorizes the Court of Criminal Appeals to reconsider an order denying relief “on its own initiative.” The court dispensed with the argument that this rule conflicted with the habeas corpus provisions found in Article 11.071 by stating that reconsideration on its own initiative does not establish a new or separate procedure for applications for writs of habeas corpus. Simply put, the court did not view this rule as a way of circumventing the restrictions on subsequent applications for writs of habeas corpus even though that’s kind of what happened in this case. Moreover, the court explained that the denial of Moreno’s federal habeas claim did not adversely impact the court’s ability to reconsider its own opinion. Doctrines such as the abstention doctrine and the exhaustion doctrine, the court reasoned, were designed to advance interests of comity, efficiency, and expediency; they weren’t intended to be jurisdictional. Allowing the court to reconsider an objectively unreasonable decision on its own doesn’t interfere with those goals. Indeed, the court noted that the Supreme Court had begun to make clear that the court’s application of Penry I was not only incorrect but also objectively unreasonable. Abdul-Kabir and Brewer squarely held that the court had misinterpreted Penry I. So, granting relief on reconsideration of the initial writ seems to make sense if you assume that the court believed Moreno would likely prevail on his subsequent federal writ based on Abdul-Kabir and Brewer.

Please note: The rather unconvincing nature of the mitigation evidence wasn’t really the issue. The jury instructions were, because the Supreme Court had just struck down similar instructions for not giving full effect to that mitigation evidence. And because the instructions were bad, the court granted Moreno a new punishment hearing. The court also pinky-swore that it will be extremely hesitant to ever exercise this authority again, particularly in old cases. Ex parte Moreno, 245 S.W.3d 419 (Tex. Crim. App. February 6, 2008)(7:1:0).

5

Yes. Ramos unambiguously asserted his right to remain silent. The court twice noted that the question of whether Ramos was in custody at the time of the questioning was not before them. (Indeed, after the trial court found that Ramos was in custody, it would have been very difficult to challenge that issue on appeal.) The court of appeals had held that the invocation of the right to terminate the interview was ambiguous because, in context, the “it” that Ramos referred to could have meant both a specific discussion of Ramos’s girlfriend and a general discussion of the interview itself. The Court of Criminal Appeals did not buy this claim because Ramos’s first statement that he did not want to talk to the officer was an unambiguous, unequivocal, and unqualified assertion of his right to remain silent. According to the Court of Criminal Appeals, any ambiguity in the second statement was entirely irrelevant. Because the officers did not scrupulously honor the defendant’s right to remain silent, Ramos’s written statement was inadmissible at trial. Ramos v. State, 245 S.W.3d 410 (Tex. Crim. App. February 6, 2008)(8:1).

6

No—at least, not in this case. The trial court did not err in denying Flores’s motion to quash the indictment because his “as applied” equal protection challenge had to rely on facts that were raised at trial and couldn’t be decided prior to trial without those facts.

First, the court did away with the “due process” challenge that the statute violated Roe v. Wade by reaffirming the earlier case of Lawrence v. State, where the court upheld the capital murder statute and its criminalization of the murder of an unborn fetus against the mother’s will. The court also did not consider Flores’s attack on the statute as unconstitutionally overbroad because Flores did not raise the argument in his petition for discretionary review. The court rejected Flores’s equal protection claim by noting that it was premised upon the theory that both Basoria and Flores consensually tried to terminate the pregnancy. According to the court, Flores overlooked significant evidence that Flores caused the death of the unborn twins without Basoria’s consent. While Flores admitted to beating Basoria in the face without her consent, he asked the jury to believe that Basoria had agreed to the other injuries—unlikely, because the jury could rationally come to the simple conclusion that all of the bruises, and the death to the twin fetuses, occurred without Basoria’s consent. Still, the court specifically indicated that it had no opinion as to the underlying merits of Flores’s claim, and it held that the case could not be resolved on a pre-trial motion to quash because it needed the evidence adduced at trial to ultimately resolve the issue.

Judge Cochran in a concurring opinion expressed concern that the statute could make anyone who assists a woman or a physician in the lawful termination of a pregnancy subject to prosecution for capital murder. She noted that the ample evidence that Flores had acted without Basoria’s consent kept the case outside of this potentially unconstitutional interpretation. So, she, along with Judge Johnson, would have addressed the merits of Flores’s “as applied” challenge to the statute (and apparently affirmed the statute’s application in this case) rather than hold that Flores improperly raised the claim in a pre-trial motion to quash.

Bottom line, we have some indication from the court that this statute can be properly applied to a defendant who tries to abort a woman’s pregnancy without her consent even though she cannot be prosecuted for it. But situations where both the man and the woman are complicit in trying to terminate the pregnancy may run afoul of the equal protection clause. Flores v. State, 245 S.W.3d 432 (Tex. Crim. App. February 13, 2008)(5:2:2:0).

8

If you threw up your hands and said, “God only knows,” like Brian Wilson did, you’d be doing basically what the court did. The court held that a hearing on the motion for new trial was unnecessary because it failed to present any “reasonable grounds” that the Bible passage affected the jury. The court side-stepped whether the Bible passage amounted to an “outside influence” because all of the affidavits indicated that the scripture had no effect on the deliberations. The foreman read it early in the deliberations, and the passage exhorted only that the jury should follow the laws of man, which basically duplicated the court’s charge. And none of the jurors said that they discussed whether Biblical principles (such as “eye for an eye”) should be considered in assessing Lucero’s punishment. Even juror No. 7 said in an affidavit to the State that Lucero’s attorney had misunderstood him and that he did not mean to suggest in his affidavit that there was any connection between the scripture reading and any member’s vote. Thus, the court left open the possibility that reading a different passage might lead to a different result. But in this case, the trial court did not abuse its discretion in denying a hearing on the motion for new trial because the record failed to present a reasonable grounds for relief. Lucero v. State, ____ S.W.3d ____; 2008 WL 375416 (Tex. Crim. App. February 13, 2008)(7:2:0).

9

Texas. Neither the I.C.J.’s decision nor the President’s memorandum constitutes directly enforceable federal law that pre-empts state limitations on the filing of successive habeas petitions. Writing for the majority, Chief Justice Roberts rejected Medellin’s claim that the Supremacy clause of the United States Constitution made the Vienna Convention the law of the land and therefore binding on Texas. He acknowledged that the treaty created an international law obligation on the part of the U.S., but the treaty did not contain any stipulations that made it self-executing. Thus, the treaty required Congressional action to make it binding on the states.

Moreover, the majority noted that reading the treaty as self-executing and the I.C.J. opinion as “binding law” could lead to troublesome consequences, namely that the I.C.J. opinions would become unassailable and capable of overriding state and federal law even if the Supreme Court disagreed with the reasoning and the result of the I.C.J.’s opinion. (The Supreme Court already presented its disagreement with the reasoning and result in Avena in Sanchez-Llamas.)

The majority also disagreed with Medellin’s argument that the President’s Memorandum made Avena binding on state courts. After acknowledging the President’s compelling interest in ensuring reciprocal observance of the Vienna Convention, the majority explained that he cannot exercise his executive authority unless he’s been given that power by the Constitution or Congress. The majority explained that the Constitution gives the President authority to make a treaty, and if he wants it to be self-executing, he should make it self-executing. If he fails to do so, it’s up to Congress to do so. Moreover, even if Congressional acquiescence to the President’s actions could authorize him to make a non-self-executing treaty binding on the states, Congress certainly didn’t acquiesce in this case.

Finally, the majority concluded that the President’s memorandum did not constitute a valid exercise of his foreign affairs authority to settle claims disputes between foreign nations. The memorandum does not appear to stem from a longstanding practice of dealing with civil claims disputes, but rather it springs from conduct that even the United States Attorney General acknowledged was unprecedented.

Justice Stevens (yes, that Justice Stevens) concurred in the judgment and wrote an opinion that almost totally sided with the dissent’s view that the treaty was, in fact, self-executing. However, Stevens saw some ambiguity in the terms of the treaty and the U.N. Charter creating the I.C.J. Given that ambiguity, Stevens felt the proper action was to defer to Congress, which was essentially what the majority did as well. Thus, Congress could ultimately, and properly, pass legislation to make the Avena decision binding on Texas. But as of right now, the Court of Criminal Appeals’ decision that Medellin had procedurally defaulted on his claims stands athwart the treaty. Medellin v. Texas, _____ S.Ct._____, 2008 WL 762533 (March 25, 2008)(5:1:3).

10

Forget it. The Supreme Court denied mandamus relief and held that §87.001 only prohibits removal if the acts committed prior to election amounted to official misfeasance that could be subject to a removal suit, but not a cause for automatic disqualification. In reaching its decision, the court reconsidered its holding in Talamantez. The court explained that §87.001 is often referred to the “forgiveness doctrine” and is grounded in the idea that the public has the authority to forgive the elected official for prior bad conduct after a campaign in which all of the facts would have been revealed. Talamantez, however, was not grounded in the forgiveness doctrine but rather in a belief that §87.001 created a limitation on a court’s authority to remove. This understanding failed to consider the nature of the prior acts or the nature of the removal proceedings.

Under subchapter B of Chapter 87, the Local Government Code lays out provisions for civil removal. Under subchapter C, the code links removal to criminal prosecution. Section 87.001 resides in subchapter A and appears to apply generally to both subchapters. However, the court noted that the legislature intended this section to apply only to civil removal proceedings, not removal proceedings tied to criminal prosecution. Originally, the language found in §87.001 appeared in the section dealing strictly with civil removal; it was moved to the general section in 1987. The legislature specifically indicated that this move was not intended as a substantive change. In contrast, the criminal removal provisions were kept separate because they got their power from Article XVI, §2 of the Texas Constitution. That constitutional provision deals specifically with removal from office for high crimes; it does not make allowance for high crimes that pre-date an officer’s election.

Looking at all of these considerations, the court determined that §87.001 prevents civil removal only for pre-election conduct, not removal for high crimes committed before an election. Justice Willett authored a concurring opinion where he expressly disagreed with the holding in Talamantez because it would seem to allow an elected official to commit a felony while in office, get re-elected, get convicted, and stay in office. In re Bazan, _____ S.W.3d _____; 2008 WL 820567 (Tex. March 28, 2008)(8:1).