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July 15, 2022

5th Circuit Court of Appeals

U.S. v. Valas

No. 20-50830  7/8/22

Issue:

Did federal prosecutors unconstitutionally suppress a document that would have aided the defendant’s prosecution for engaging in a commercial sex act with a minor?

Holding:

No. There was no Brady violation in federal prosecutors failing to produce an FD-302 summary of an FBI interview with the victim because the evidence was not material. The Court noted that the government’s only justification for the lapse—“that the failure to produce the 302 to Valas was ‘inadvertent,’ is troubling. It is difficult to grasp how a document as routine as a 302 would be overlooked, particularly in this instance,” because the victim was the only witness who accused Valas of criminal activity. “We note that, unfortunately, this is not the first time something like this has happened, e.g., United States v. Perea, 625 F.Supp.2d 327 (W.D. Tex. 2009). We admonish the Government to endeavor to make it the last.” Read opinion.

Commentary:

To establish a Brady violation, a defendant must demonstrate three things: (1) that the State (or federal government, as in this case) failed to disclose information or evidence in its possession, regardless of the prosecution’s good or bad faith; (2) that the undisclosed information or evidence is favorable to the defendant (i.e., anything useful for exculpation, impeachment, or mitigation); and (3) that the undisclosed information or evidence is material. The Texas Court of Criminal Appeals recently explained in Watkins v. State, 619 S.W.3d 265 (Tex. Crim. App. 2021), that Texas courts must assess materiality of undisclosed information or evidence “by evaluating its relation to a particular subject matter rather than its impact upon the overall determination of guilt or punishment in light of the evidence introduced at trial.” This means that materiality can be difficult to determine without the benefit of hindsight, so the best practice would be to not rely on materiality when making your disclosure decisions. Rather, if the State has information or evidence in its possession that is favorable to the defendant, just disclose it.

Texas Courts of Appeals

Ex parte Highsmith

No. 03-22-00074-CR   6/30/22

Issue:

Is the State required under Code of Criminal Procedure Article 17.151 to demonstrate full Article 39.14 discovery compliance within the 90-day statutory period for felony offenses?

Holding:

No. The Court rejected the defendant’s argument that the doctrine of in pari materia requires Articles 17.151 and 39.14 to be read together to require the State to provide full discovery within the 90-day period to be ready for trial. “[N]othing in the plain language of the [Michael Morton] Act or in article 17.151 indicates that this production obligation to the defendant is a component of the State’s own readiness for trial under article 17.151 or hints that the requirements should be read in conjunction with one another or conflict with each other.” Read opinion.

Commentary:

This opinion thoughtfully explains that the State’s readiness for trial within 90 days of the commencement of the defendant’s detention for a felony offense (or the defendant is entitled to release on either a personal bond or lower bail (per Article 17.151)), and the State’s duty to provide discoverable material “as soon as practicable” (per Article 39.14) are separate matters governed by different statutes that impose distinct timelines. (Note that Article 39.14 does not contain a specific compliance date for discovery.) The defendant may seek discretionary review of this issue by the Court of Criminal Appeals, but the Third Court of Appeals’s reasoning and holding should withstand the CCA’s scrutiny.

Ex parte Ramirez

No. 03-21-00409-CR   6/30/22

Issue:

If a defendant enters a guilty plea against the advice of his replacement defense attorney (who told the defendant that he had not had time to review the evidence in the case and recommended against accepting the offered plea), is the defendant entitled to habeas relief based on ineffective assistance an involuntary plea?

Holding:

No. By disregarding his attorney’s advice not to enter a plea, the defendant failed to meet his burden of showing that his trial attorney’s performance was not reasonable and his plea was involuntary. Read opinion.

Commentary:

When a defendant declines to follow his attorney’s reasonable advice concerning a decision that lies in the defendant’s sole discretion (here, the decision of whether to accept a plea bargain and plead guilty), the defendant cannot later claim (at least not successfully) that he received ineffective assistance of counsel. Other decisions that belong entirely to the defendant include whether to waive the right to a jury trial, to testify at trial, or to forgo an appeal. This case doesn’t discuss those decisions, but it would be useful should a defendant make an analogous ineffective-assistance claim regarding any of those scenarios.

July 8, 2022

Texas Courts of Appeals

Munoz v. State

No. 01-20-00469-CR   6/28/22

Issue:

Does Transportation Code §545.060(a) require the State to prove that a driver both failed to maintain a lane and switched lanes unsafely?

Holding:

Yes. The 1st Court of Appeals joined the 3rd, 13th, and 14th Courts of Appeals, which have all held that the State must prove both elements, unlike the Court of Criminal Appeals’s plurality holding in Leming v. State, 493 S.W.3d 552 (Tex. Crim. App. 2016), which held that the statute provides two ways to commit the offense. In this case, however, the 1st Court concluded that the State proved both elements, which justified the officer’s stop of Munoz. Read opinion.

Dissent (Landau, J.):

The dissent agreed that §545.060(a) requires proof of both elements—rather than provides two ways to commit the offense—but disagreed that the State met its burden of showing reasonable suspicion for the stop. Read dissent.

Commentary:

Remember that a plurality opinion or ruling does not carry any precedential weight. Thus, in the wake of Leming, a growing split among the intermediate appellate courts has developed. Several intermediate appellate courts have decided this issue the other way and opted to follow the plurality view of the CCA in Leming, including the 2nd, 7th, 8th, 10th, 11th, and 12th Court of Appeals. Until the CCA decides to revisit this issue and make a statewide, authoritative ruling one way or the other, it is imperative that you are familiar with how your local intermediate appellate court (or courts, if you’re near the Houston area, where the 1st and 14th Courts of Appeals share jurisdiction) has ruled on the matter, so that you can properly educate regional law enforcement and prove what you must to substantiate a traffic stop under §545.060(a).

Shook v. State

No. 10-21-00101-CR   6/29/22

Issue:

Are trial judges required to give admonitions under Faretta when a defendant electing to proceed pro se has access to appointed standby counsel?

Holding:

No. Because the defendant consulted with his standby counsel, the judge was not required to provide the defendant with the more formal admonishments from Faretta v. California, 422 U.S. 806 (1975). In a footnote, however, the Court stated, “[T]he better course for any trial judge is to provide Faretta warnings to a defendant in any case where he or she has at any time expressed any desire to engage in self-representation. Giving such warnings, early and often, provides meaningful information to permit a defendant to make rational and well-thought-out decisions. Giving them in writing, and asking the defendant to acknowledge receipt of the warnings in writing as well, provides the defendant with even greater understanding of the rights (and perils) of self-representation.” Read opinion.

Dissent (Gray, C.J.):

“I must disagree in the strongest way with [the 1st, 4th, 5th, and 14th Courts of Appeals], and now my colleagues on this Court, who hold or suggest that if stand-by counsel is appointed, there is no need to admonish the defendant of the dangers and disadvantages of self-representation.” Read dissent.

Commentary:

A trial court can appoint standby counsel to assist a pro se defendant at trial, even if the defendant objects. However, because the trial court cannot force a pro se defendant to actually consult with or utilize the appointed standby attorney, Faretta warnings about the dangers of self-representation are the better approach, even if not required in these circumstances.

Attorney General Opinion Request

RQ-0465          6/28/22

Issue:

Is an individual convicted of a felony in another state whose “rights of citizenship” have been restored by the other state eligible to run for office in Texas under Election Code §141.001? Read opinion request.

Requested by:

Anna D. Hord, Hockley County Attorney

July 1, 2022

U.S. Supreme Court

Dobbs v. Jackson Women’s Health Organization

No. 19-1392    6/24/22

Issue:

Does the 14th Amendment confer a right to abortion?

Holding:

No. The Court overrules Roe v. Wade, 410 U.S. 113, and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, and rules that states have the right to regulate abortion. “Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” Read opinion.

Concurrence (Thomas, J.):

“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ … we have a duty to ‘correct the error’ established in those precedents. … After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

Concurrence (Kavanaugh, J.):

“To be clear, … the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.” The concurrence also noted that overruling Roe “does not mean the overruling of” Griswold, Lawrence, Eisenstadt, Loving, and Obergefell.

Concurrence (Roberts, C.J.):

“I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. … But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. … The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.”

Dissent (Breyer, J. joined by Sotomayor and Kagan, JJ.):

“Roe and Casey well understood the difficulty and divisiveness of the abortion issue. … So the Court struck a balance, as it often does when values and goals compete. It held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. … Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”

Commentary:

This opinion is controversial and its ramifications continue to develop as lawsuits are filed to challenge state trigger laws. For more information on how Dobbs will affect Texas law, including trigger laws passed in the 2021 legislative session, see “Interim Update: Abortion-Related Crimes after Dobbs.”

New York State Rifle & Pistol Ass’n, et al. v. Bruen, Superintendent of New York State Police, et al.

No. 20-843      6/23/22

Issue:

Does New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violate the 14th Amendment by preventing people from exercising their 2nd Amendment rights to keep and bear arms?

Holding:

Yes. “[T]he Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home,” so New York’s licensing requirement that a person who wants to carry a firearm outside his home must “demonstrate a special need for self-protection distinguishable from that of the general community” is unconstitutional. The Court noted that 43 states that require a permit to carry a handgun in public grant licenses whenever applicants satisfy threshold requirements, without granting the licensing officials discretion to deny licenses based on a perceived lack of need or suitability. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.” Read opinion.

Concurrence (Alito, J.):

“Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. …”

Concurrence (Kavanaugh, J., joined by Roberts, C.J.):

“[T]he Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as ‘shall-issue’ regimes—that are employed in 43 States. The Court’s decision addresses only the unusual discretionary licensing regimes, known as ‘may-issue’ regimes, that are employed by 6 States including New York. … Second, … the Second Amendment ‘is neither a regulatory straightjacket nor a regulatory blank check.’ Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”

Concurrence (Barrett, J.):

“I write separately to highlight two methodological points that the Court does not resolve. First, the Court does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution. … Second and relatedly, the Court avoids another ‘ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868’ or when the Bill of Rights was ratified in 1791.”

Dissent (Breyer, J., joined by Sotomayor and Kagan, JJ.):

“Many States have tried to address some of the dangers of gun violence … by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so. It invokes the Second Amendment to strike down a New York law regulating the public carriage of concealed handguns. In my view, that decision rests upon several serious mistakes.”

Commentary:

Texas already has very permissive laws regarding carrying firearms and even allows most people over 21 years of age to openly carry a holstered firearm in public without needing a license to carry. See Tex. Penal Code §§46.02, 46.04. Thus, because Texas does not have a restriction similar to the New York law that the SCOTUS struck down as an unconstitutional infringement on the Second Amendment, this opinion will not impact the current firearms landscape in Texas.

Nance v. Ward

No. 21-439      6/23/22

Issue:

Can a prisoner challenge a state’s method of execution and seek to be executed by a different method not authorized by state law through 42 U.S.C. §1983?

Holding:

Yes. A prisoner can challenge a method of execution through §1983 rather than through a petition for a writ of habeas corpus. Previously, the Court had held that method-of-execution challenges could be raised under §1983 rather than through a habeas petition when state law includes a readily available alternative method of execution. The Court extended this reasoning to apply to situations where the prisoner identifies “a readily available alternative method of execution that would significantly reduce the risk of severe pain” that is not authorized by applicable state law. In this case, the prisoner had asked to be executed by firing squad—not authorized by Georgia law—rather than the only authorized method: lethal injection. Read opinion.

Dissent (Barrett, J., joined by Thomas, Alito, and Gorsuch, JJ.):

Because lethal injection is the only method of execution authorized in Georgia, “if Nance is successful, the defendants in this case—the commissioner of the Georgia Department of Corrections and the warden—will be powerless to carry out his sentence. That makes habeas the right vehicle for Nance’s Eighth Amendment challenge.”

Commentary:

Remember that a §1983 claim is a lawsuit alleging that a state or local official (including a law enforcement officer) or a person acting under color of state law has violated the plaintiff’s civil rights under the U.S. Constitution.

The majority opinion premised its holding that a §1983 claim is an appropriate vehicle for a method-of-execution challenge because the Georgia Legislature could modify its death-penalty statute to authorize the additional method of execution that the prisoner identified and, thus, “[the prisoner’s] requested relief still places his execution in Georgia’s control.” Like in Georgia, Texas’s death-penalty statute authorizes execution only by lethal injection. See Tex. Code Crim. Proc. Art. 43.14(a). Hence, if a Texas death-row inmate brings a method-of-execution challenge under §1983, this opinion will allow that action to proceed and, if the claim is ultimately successful, this opinion could require a legislative change to the Texas death-penalty statute to allow additional, readily available alternative methods of execution. Note, however, that the SCOTUS did not address the merits of the §1983 suit, only whether §1983 was an appropriate procedural vehicle to advance the prisoner’s claim in these circumstances.

Vega v. Tekoh

No. 21-499      6/23/22

Issue:

Does a violation of Miranda provide a basis for a §1983 claim?

Holding:

No. A violation of Miranda is not necessarily a violation of the 5th Amendment and therefore does not confer a right to sue under §1983. “Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation, and it is difficult to see how it could have held otherwise. For one thing, it is easy to imagine many situations in which an un-Mirandized suspect in custody may make self-incriminating statements without any hint of compulsion.” Read opinion.

Dissent (Kagan, J., joined by Breyer and Sotomayor, JJ.):

“If police fail to provide the Miranda warnings to a suspect before interrogating him, then he is generally entitled to have any resulting confession excluded from his trial. … From these facts, only one conclusion can follow—that Miranda’s protections are a ‘right[]’ ‘secured by the Constitution’ under the federal civil rights statute. … And so it prevents individuals from obtaining any redress when police violate their rights under Miranda.”

Commentary:

Practically speaking, this opinion will largely be of interest to federal, civil attorneys. However, the opinion does provide an insightful reminder that Miranda-imposed prophylactic rules are meant to safeguard Fifth Amendment rights, but a violation of those rules does not automatically establish a violation of the Fifth Amendment. So, un-Mirandized statements made as a product of custodial interrogation may be inadmissible if they violate Texas Code of Criminal Procedure Art. 38.22 but, as the SCOTUS notes, those statements will not necessarily violate the Fifth Amendment when there is no hint of compulsion attached to them.

Texas Court of Criminal Appeals

Osorio-Lopez v. State

Nos. PD-0354-21 & -0355-21             6/29/22

Issue:

Do Code of Criminal Procedure Arts. 1.051 and 46B.006 require defendants to be represented by counsel at a retrospective competency hearing?

Holding:

No. Arts. 1.051 and 46B.006 address when a defendant is entitled to an appointed attorney. They do not address the issue of whether a defendant can waive the right to counsel and proceed pro se. The Court concluded that the court of appeals erred in determining that a defendant can never waive the right to counsel at a retrospective competency hearing and proceed pro se. “[T]he issue is not whether [the defendant] had a right to self-representation … but whether [he] was competent to waive counsel and whether he voluntarily, knowingly, and intelligently did so after asserting his desire to represent himself.” Read opinion.

Commentary:

Here, the Court of Criminal Appeals rejected the lower appellate court’s determination that a defendant must be represented by an attorney at a retrospective competency hearing, even if the defendant wishes to exercise his Sixth Amendment right to self-representation. The Court did not reach the merits of whether the defendant here validly waived his right to counsel because the record concerning the defendant’s present competency and the adequacy of the trial court’s Faretta warnings was not adequately developed. Nevertheless, this case reiterates the importance of the right to self-representation in all stages and portions of a criminal prosecution—including retrospective competency proceedings. Though extra care is warranted to safeguard the fairness of the proceedings when issues of the defendant’s competency are involved, the defendant still must be permitted to proceed pro se if the trial court is satisfied that the defendant is competent and is making a voluntary, knowing, and intelligent decision to do so.

Texas Supreme Court

Texas Dep’t of State Health Services v. Crown Distributing, et al.

No. 21-1045    6/24/22

Issue:

Does Texas’s ban against the manufacture and processing of smokable hemp products violate the Texas Constitution’s due-course clause?

Holding:

No. “Considering the long history of the state’s extensive efforts to prohibit and regulate the production, possession, and use of the Cannabis sativa L. plant, we conclude that the manufacture and processing of smokable hemp products is neither a liberty interest nor a vested property interest the due-course clause protects. It is, instead, ‘purely a personal privilege’ that the people’s elected representatives in the legislature may grant or withdraw as they see fit.” Read opinion.

Concurrence (Young, J., joined by Hecht, C.J., Devine and Blacklock, JJ.):

The concurrence concludes that the holding would be the same under either the Texas or U.S. Constitution, which means the Court did not have to consider the scope of Texas’s due-course clause. “That condition will not last long, though. The very fact that the lower court used the Texas due-course clause to invalidate the statute here illustrates why we should soon expect cases that require more from us. We must be ready when those cases come, and in today’s respite, we should take the perspective of Aesop’s ant rather than his grasshopper.” Read concurrence.

Commentary:

Texas law permits Texans to cultivate, handle, transport, distribute, sell, purchase, manufacture, and possess consumable hemp products, but not consumable hemp products that are smokable. See Tex. Health & Safety Code §443.204(4); see also Tex. Admin. Code §300.104. With this issue resolved—and the constitutionality of §443.204(4) upheld—any prosecutions related to the unlawful possession or manufacture of smokable hemp products will be able to proceed.

Notably, though, because the Texas Department of State Health Services abandoned its argument regarding the portion of Texas Administrative Rule 300.104 that prohibits the distribution and retail sale of consumable hemp products for smoking, the trial court’s injunction against enforcement of that part of the rule remains in effect and, thus, a prosecution will not be viable for a violation of that particular provision.

Also, if you’re interested in the history of cannabis, hemp, marijuana, CBD, THC, and the laws that have evolved to regulate them at the federal and state level, this opinion will provide a good read.

Interim Update: June 2022

June 29, 2022

It’s been a whopper of a news month, hasn’t it? We hardly know where to begin.

Dobbs opinion

Last Friday, we sent all of you an analysis of the potential impact of the Dobbs opinion on Texas law; if you missed that email, you can find it on our website here. Our analysis focused on last session’s “trigger law” legislation that we had not previously summarized due to that law’s contingent effective date (which is still up in the air as this update goes to press), as well as some observations about other new and old (and VERY old) laws that may now come into play when discussing the legality of elective abortions.

As we predicted on Friday, the legal battles have already begun over what is or is not prosecutable after Dobbs. The status of various lawsuits and injunctions and appeals will change faster than we can provide everyone with updates, so please keep yourself up to date on those developments if this is an issue that impacts your office.

Uvalde

The summer of even-numbered years is usually a slow time for the Texas Legislature, but the events in Uvalde kicked interim legislative committees into overdrive this past month. House and Senate leadership created special committees to review the horrific events at Robb Elementary School in Uvalde, and multiple other committees held hearings on topics within their subject matter jurisdiction that might be relevant to what happened. There were too many committee hearings for us to summarize in this space, but here are some quick take-aways:

  • Fuggetaboutit #1: The governor is not calling a special session to respond to the Uvalde massacre (or any other news event between now and the November elections).
  • Fuggetaboutit #2: There will be no new laws to limit gun access or possession next session (barring a dramatic change in the partisan make-up of the Lege).
  • There have been encouraging signals from the Lege about increasing forensic mental health funding and resources; everything is still on the table, so now is the time to engage with your local reps and senators to make your needs known.
  • In that vein, kudos to Burnet CA Eddie Arredondo and First Asst CA Colleen Davis, who testified before a joint hearing of the House Corrections and County Affairs Committees on rural mental health needs (including authorizing and funding regional mental health centers and diversion courts along with more resources for mental illness identification and diversion, especially for juveniles and low-level offenders).

Other (non-Uvalde massacre) committee news

The House Licensing & Administrative Procedures Committee examined the proliferation of illegal gambling in Texas in all its many forms—daily fantasy sports, 8-liners, poker rooms, brush track races, etc.—including testimony from Potter CA Scott Brumley on the legal and practical challenges faced by prosecutors who wish to enforce the (inadequate) anti-gambling laws currently on the books.

The House Corrections and House County Affairs Committees met jointly to review the availability of behavioral health services for offenders in the criminal justice system. TDCJ reported that it has currently filled only 57 percent of its staffing needs, while its inmate population is at ~118,000, a 15 percent decrease from pre-COVID levels. The agency also reported that more than half of the ~42,000 new inmates it processes every year have chemical dependency issues and more than one-quarter have mental health issues. The Texas Commission on Jail Standards (TCJS) also reported that approximately one-half of all jail inmates have mental health concerns at intake.

The Sunset Advisory Commission reviewed agency reports on TCEQ and TJJD. In regard to the latter agency, the commission heard that TJJD is in crisis mode (again), with only 60 percent of its staffing needs fulfilled and up to 30 percent of new hires quitting in the first few months of their jobs after they complete their training. The agency cannot staff the beds it has, leading the Sunset staff to consider recommending that most juveniles may be better managed at the county level due to the state agency’s inadequacies and limitations. Final recommendations will be made in October; for more on the TJJD review process, click here.

The Senate Finance Committee examined the ~$8.5 billion the state appropriates for mental and behavioral health care each biennium. The average wait for a maximum-security unit (MSU) bed is now 500 days, while the wait for a non-MSU bed is ~230 days; as a result, the number of people on the waiting list has increased more than 50 percent from pre-COVID days. Those increases were attributed to post-pandemic staffing shortages. Witnesses before the committee also discussed finding new ways to restore competency without resorting to the time and expense associated with state hospital commitments, especially for low-level misdemeanor offenders.

Upcoming hearings

Interim charges currently posted for hearings in July include (click on the link for the full notice):

Monday, July 11
Senate Finance
10:00 a.m., Room E1.036
Charge #1: State use of federal COVID-19 relief funds (invited and public testimony)

Tuesday, July 12
Senate Finance
10:00 a.m., Room E1.036
Charges #8 (bail bond reform) and #9 (Operation Lone Star appropriations) (invited and public testimony)

TDCAA Annual Conference

Registration for TDCAA’s Annual Criminal & Civil Law Conference is now open. From jail standards to the ethics of plea-bargaining, this year’s event has something for everyone. If you are looking for a deeper dive into today’s pressing advocacy issues, help with managing the courtroom, or just a chance to catch your breath—this event is for you. Click here to register and see additional details.

Scattershooting

Here are a few interesting stories from this past month that you might’ve missed:

  • “Facing exodus of prosecutors, Bexar DA seeking salary boost for his attorneys” (San Antonio Express-News)
  • “Nueces County District Attorney’s Office facing shortage of more than a dozen prosecutors” (Corpus Christi Caller-Times)
  • “Justice’s price: Comal County DA pushing for competitive pay to keep talent” (New Braunfels Herald-Zeitung)
  • “Texas’ Juvenile Justice Department could be on the chopping block” (Texas Public Radio)
  • “Opinion: The courts still haven’t figured out how to reconcile science with law” (Washington Post)
  • “The Broken Windows Election: What the recall of Chesa Boudin means for the public safety debate” (Washington Free Beacon)
  • “How a Harris County ‘jury appreciation week’ event led to a murder mistrial” (Houston Public Media)

Quotes of the Month

“[Uvalde ISD Police Chief Pete Arredondo] decided to place the lives of officers before the lives of children. … I don’t mean to be hypercritical of the on-scene commander, but … this set our profession back a decade.”
            —Steve McCraw, DPS Director, during his testimony to a State Senate committee convened to review events surrounding the Robb Elementary massacre in Uvalde, at which McCraw laid blame for the hour-long stand-off on Arredondo.

“McCraw has continued to, whether you want to call it, lie, leak … mislead or misstate information in order to distance his own troopers and rangers from the response.”
            —Uvalde Mayor Don McLaughlin, who has accused state officials of selectively releasing information about the school shooting in an attempt to scapegoat local law enforcement.

“Texas as well. #txlege #CJReform”
            —House Speaker Dade Phelan (R-Beaumont), quote-tweeting someone saying that “civil asset forfeiture imperils peoples’ rights to property and due process in Kansas.”

“Remember, guys, we’re trying to build out a nationwide district attorney network. Your local district attorney, as we always say, is more powerful than your congressman. They’re the ones that can seat a grand jury. They’re the ones that can start an investigation, issue subpoenas, make sure that records are retained, etc.”
            —Tim Griffin, legal counsel with the Amistad Project—a GOP-affiliated election-integrity group—discussing its efforts to make inroads with local prosecutors who will be amenable to pursuing claims of election fraud in future elections.

“Carol was a great influence on everybody that joined the office. He gave us great discretion to handle cases in the way we saw fit, but his overriding mission was ‘Do the right thing for the right reason, in the right way,’ and everybody followed that.”
            —Ron Woods, former Harris County prosecutor, commenting upon the passing earlier this week of Carol Vance, whose illustrious career of public service included serving as Harris County DA from 1966 to 1979. [TDCAA will offer further reflections on Mr. Vance’s life of service in a future publication.]

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Interim Update: Abortion-Related Crimes after Dobbs

June 24, 2022

Elective abortions and criminal prosecution

The U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (June 24, 2022) has implications for Texas jurisprudence, including the triggering of a new felony offense relating to elective abortions that will take effect at a yet-to-be-determined date. This new crime was not summarized or discussed in our 2021 Legislative Update publications due to its contingent effective date, so we will discuss here:

  • how we got to this point;
  • the new trigger law;
  • other abortion-related crimes on the books;
  • abortion-related crimes you can’t find in your books; and
  • party liability issues.

As always, our legislative update information is not intended to instruct prosecutors on what they should or should not do, but merely provide legal research and information needed by our members to make informed decisions on how best to see that justice is done in their communities.

How we got here

For more than 100 years, Texas criminalized various acts relating to the performance of an elective abortion until the U.S. Supreme Court (SCOTUS) handed down its opinion in Roe v. Wade, 410 U.S. 113 (1973), which held five Texas crimes related to abortion facially unconstitutional under the 14th Amendment’s Due Process Clause. After Roe, those crimes could not be enforced in Texas even though they were never legislatively repealed. See, Tex. Op. Atty Gen. No. JH-369 (1974) (noting that only Penal Code Art. 1195 [criminalizing abortion during natural birth] was still enforceable after Roe). In the ensuing decades after Roe, the legislature enacted new laws restricting or regulating abortion in ways that comported with Roe and its progeny, and that practice continued to the present day—but often in ways that did not rely on criminal prosecution for enforcement.

Today, SCOTUS handed down its opinion in Dobbs v. Jackson Women’s Health Organization (June 24, 2022) explicitly overruling Roe and clearing the way for states to once again regulate abortion without constitutional limits. In anticipation of just such a change, the Texas Legislature passed a “trigger law” in 2021 to prohibit elective abortions after fertilization once Roe was struck down, and this new law includes felony punishments. But as with many things that come out of the legislature, the application and enforcement of that prohibition and related laws may be more complicated in practice than they have been portrayed in media or politics.

The “Texas Trigger Law”

In 2021, the 87th Legislature passed House Bill 1280 to create Health & Safety Code Chapter 170A (Performance of Abortion), a new regulation of abortion that takes effect 30 days after Roe is overturned by SCOTUS. The chapter includes criminal, civil, and regulatory enforcement mechanisms for the same prohibited conduct; we will discuss the first two of those sanctions in greater detail because they may conflict in practice.

New criminal offense under HB 1280

The gist of new Chapter 170A is §170A.002 (Prohibited Abortion; Exceptions), which prohibits knowingly performing, inducing, or attempting an abortion at any time after fertilization. A violation of that section is a second-degree felony under §170A.004 (Criminal Offense) unless the unborn child dies, in which case it is a first-degree felony.

Other things to know about this new crime:

  • “Abortion” includes surgical and non-surgical means, such as drugs/medicine (which now account for more than half of all elective abortions). The term would appear to include “selective reductions” performed as a part of some IVF treatments, but it does not include contraception, ectopic pregnancy removals, and other surgical acts listed in the definition of that term (§170A.001(1)).
  • Nothing in Chapter 170A can be used to impose criminal, civil, or administrative liability upon a pregnant woman upon whom an abortion is performed (§170A.003).
  • Doctors have defenses for performing an abortion to save the expectant mother from death or severe injury and for any medical treatment that results in an accidental fetal death (§170A.002).

This new criminal offense will apply to conduct occurring on or after the 30th day after Dobbs finally overrules Roe. Note that this is *not* 30 days from today; the Court’s opinion was released today, but not it’s final judgment or mandate. The Attorney General’s Office issued a legal advisory today noting this remaining contingency, along with a (speculative) comment that some abortion-related crimes may be prosecutable immediately. (More on that below.) Regardless of an such opinion, though, any criminal, civil, or administrative action brought under the new law is likely to involve litigation over the effective date of §170A.002 due to its unusual (unprecedented?) trigger mechanism.

[Update: The U.S. Supreme Court mandate in Dobbs issued on Tuesday, July 26, so the new felony offense in §170A.002 should apply on or after Thursday, August 25, 2022.]

New civil fines (and complications)

Chapter 170A also includes new §170A.005 (Civil Penalty) creating a civil penalty of not less than $100,000 for each violation of §170A.002. If this sends up a double jeopardy red flag for you, congratulations—you are probably recalling the admonition from Dep’t of Revenue of Montana v. Ranch, 511 U.S. 767 (1994), in which SCOTUS held that a defendant already convicted and punished for a criminal offense cannot have a non-remedial civil penalty imposed against him for the same offense in a separate proceeding due to the Fifth Amendment’s Double Jeopardy Clause. And the reverse is also true: If a defendant fully pays a civil fine, then any subsequent criminal prosecution is barred by double jeopardy. See, Ex parte Ward, 964 S.W.2d 617, 627 (Tex. Crim. App. 1998).

While the Double Jeopardy Clause does not prohibit the initial filing of concurrent criminal and civil actions, a conviction in the former or a full payment in the latter will foreclose the other option. Interestingly, the civil enforcement provision of §170A.005 requires the attorney general (OAG) to file a civil action to recover this civil fine. By requiring OAG to pursue a minimum six-figure civil penalty for the same conduct that potentially incurs a felony sentence of imprisonment and a criminal fine, the legislature has created a legal framework that could prevent a criminal conviction for certain violations of the new anti-abortion “trigger law” crime if any of those civil fines are collected by OAG.

Other abortion-related crimes

Despite Roe striking down Texas’s abortion laws in the 1970s, the legislature has enacted numerous restrictions on the practice since then. Those laws include administrative regulations of facilities and physicians, civil sanctions, and criminal offenses (outside the Penal Code) that target those who perform or facilitate an elective abortion. Here is a summary of some of those crimes, keeping in mind that this list is not exhaustive and that many of these crimes have exceptions, defenses, exclusions, or other elements not mentioned here.

Family Code Section:

33.002             Performing abortion on minor w/o parental notification ($2,500-10,000 civil fine)
151.002           Failing to provide treatment to a child born alive after an abortion (3F + civil fine)

Health & Safety Code Section:

171.018           Performing abortion w/o voluntary & informed consent ($0-10,000 criminal fine)
171.065           Provision of abortion-inducing drugs by non-physician (SJF)
171.103           Performing partial-birth abortion (SJF)
171.153           Performing dismemberment abortion without cause (SJF)
245.011           Paperwork violations by abortion facilities or physicians (Class A)
245.014           Operating abortion facility without a license (Class A)

How these existing laws interact with new Chapter 170A is anyone’s guess because the new “trigger law” did not amend or repeal these existing crimes. As a result, any irreconcilable conflicts will have to be decided through an in pari materia analysis in the courts, which could conclude that some of these pre-existing but more specific laws apply in certain circumstances even though they carry much lower penalty ranges. (For example, a two-year maximum state jail sentence for partial-birth abortion under §171.103 rather than a potential sentence of life in prison for general abortion under new §170A.002).

Penal Code implications

As everyone was reminded last month, there are no Penal Code charges that can be brought against a woman whose conduct results in the death of her unborn child, including by submitting to or performing her own abortion. See, Penal Code §19.06 (homicides), §22.12 (assaults), and §49.12 (intoxication manslaughter/assault). This is consistent with the non-Penal Code crimes mentioned in the previous section, all of which criminalize the conduct only of those other than the woman on whom the elective abortion is performed. It is also consistent with pre-Roe abortion crimes; our research yielded no reported cases of a woman being prosecuted in Texas for abortion under pre-Roe criminal statutes.

Note, however, that in addition to exempting conduct committed by the mother of the unborn child, PC §§19.06 and 22.12 exempt from homicide and assault prosecutions any conduct by a physician that constitutes a “lawful medical procedure” intended to result in abortion, and they also exempt the dispensation or administration of any drug “in accordance with law.” It is unclear at this time how those defenses will be narrowed in regard to conduct that was previously included within those terms but may no longer qualify after Dobbs. For example, H&SC §170A.002 will soon prohibit elective abortions upon fertilization, and H&SC §171.063 (Provision of Abortion-Inducing Drug, eff. Dec. 2, 2021) already limits the circumstances under which abortifacient drugs can be delivered or administered. The question of whether criminal conduct under those new statutes can also be prosecuted under PC Chapters 19 (Criminal Homicide) or 22 (Assaultive Offenses) may have been re-opened by this latest legislation, but it will be up to the courts to decide that after an in pari materia analysis.

What’s old is new again?

Another area of confusion involves Texas’s prior abortion-related crimes struck down by Roe. As mentioned above, those statutes were never repealed by the legislature, and they had different elements, different defenses, and different (and lower) punishments from the new offense under §170A.002. So, what happens to them now?

1925 Penal Code

The original pleadings in Roe targeted former Articles 1191–1196 of the 1925 Texas Penal Code. The Court eventually found all of them to be unconstitutional except for Art. 1195 (causing a child’s death during “parturition,” or natural childbirth). But while the Roe litigation was making its way through the courts, those same statutes were moved as part of the legislature’s first Model Penal Code project, which began in the 1960s before Roe was initiated and concluded after Roe was decided. The result of that project was the codification of a new 1973 Penal Code (effective January 1, 1974) which moved various “leftover” crimes that did not fit neatly into that model code over to the state’s Civil Statutes. Consequently, the former crimes in Arts. 1191–1196 were moved to Tex. Rev. Civ. Stat. Arts. 4512.1–6. However, a search for those statutes on the state’s own website or in your dusty old volumes of Vernon’s may only yield Art. 4512.5 (Destroying Unborn Child), the former Art. 1195 that was left standing after the Roe opinion. The other offenses struck down by Roe no longer appear in most legal resources*—but they were never explicitly repealed by the legislature. So, what happens to them now that the court decision that led publishers to remove them is no longer valid?

[* – After this update was published, the statutes previously repealed by Roe were restored to the state’s website; for the full text of those criminal statutes, click here. (added 06/24/22 at 1:40pm)]

Restoring unconstitutional laws

The legislature recognized this unanswered question in its deliberations over HB 1280, the trigger law that created Chapter 170A. To quote from the House Research Organization’s bill analysis of HB 1280, supporters of the bill stated:

“The bill would clear up confusion about whether the state’s pre-Roe statutes are still valid. Although the Legislature never explicitly repealed those laws, a non-binding 5th Circuit Court of Appeals opinion suggests that the Legislature’s enactment of laws such as those governing abortion on minors and regulating abortion facilities effectively repealed the pre-Roe laws.”

Apparently, that Fifth Circuit case is McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004, cert. denied)—a suit brought by the original plaintiff in Roe to have the opinion withdrawn after her change of heart on the abortion issue. In its opinion, the court held that McCorvey’s lawsuit was moot because Texas had impliedly repealed those old statutes criminalizing abortion by its enactment of various regulations governing the availability of abortions and the practices and procedures of abortion clinics that irreconcilably conflict with the old provisions criminalizing abortions. The resulting conflict, the court held, could be resolved only by holding that the prior crimes were implicitly repealed by the post-Roe legislation. However, this legal concept of “implied repeal” is a controversial one that is rarely favored by the courts, and it is a topic on which the Texas Court of Criminal Appeals and the Texas Supreme Court have sometimes taken different approaches, so it is impossible to predict how the matter would be resolved by the courts in this new criminal context.

Note, however, that this unresolved issue comes to a head immediately upon Roe being overturned by Dobbs. Unlike the new felony crime in §170A.002, there is no grace period before the potential restoration of the 1925-era crimes (the text of which you can read in Tex. Op. Atty Gen. No. JH-369 [1974]).

HB 1280 and SB 8 further muddy the waters

Despite the optimism of HB 1280 supporters noted above that “[t]he bill would clear up confusion about whether the state’s pre-Roe statutes are still valid,” it arguably makes the confusion worse, not better.

The simplest way to facilitate criminal prosecutions for elective abortions would have been to explicitly repeal the old laws and pass new laws in their place. For example, an earlier “trigger law” filed back in 2007 as SB 186 (80RS) by then-State Sen. (now Lt. Gov.) Dan Patrick purported to move the old Art. 4512 crimes into the Penal Code, repeal the various “competing” regulations mentioned in McCorvey, and then repeal or revise the old crimes’ 1925-era language to create new—and more readily enforceable—crimes. But rather than follow that example, the 87th Legislature did the opposite in 2021. Instead of an explicit repeal-and-replace, both HB 1280 (trigger law) and SB 8 (the fetal heartbeat bill) included legislative “findings”—a type of legislative dicta—that the former abortion crimes were never repealed. And SB 8 took things a step farther, adding this new provision to the state’s Code Construction Act:

Government Code §311.036. CONSTRUCTION OF ABORTION STATUTES. (a) A statute that regulates or prohibits abortion may not be construed to repeal any other statute that regulates or prohibits abortion, either wholly or partly, unless the repealing statute explicitly states that it is repealing the other statute.

Because HB 1280 did not explicitly repeal the old statutes struck down by Roe, it appears to have created a situation in which those old crimes will co-exist with the bill’s new felony abortion crime under §170A.002, even though that new crime irreconcilably conflicts with those old crimes in many situations. As a result, some defendants in those cases may be able to successfully challenge a prosecution under §170A.002 on the basis that its new provisions cannot be reconciled with those older—but more specifically-tailored—pre-Roe crimes which also carry much lower punishments (for example, a maximum of five years’ imprisonment for abortion under former Art. 1191 [or 4512.1], versus a potential life sentence under §170A.002). Therefore, if the former pre-Roe crimes are determined to still be valid, the courts will again be required to conduct an in pari materia analysis to determine whether the overlapping old and new crimes can be harmonized, and if not, then which more specific charge(s) the State is limited to pursuing.

The law of parties

The final post-Dobbs issue we will address here is party liability.

Currently, Penal Code §7.02(a)(2) makes a person criminally responsible for an offense committed by another if, with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. The scope of this law can be broad; however, this party liability applies only to “an offense committed by the conduct of another.” Stated another way: “If no principal liability, then no party liability.” That limitation may be relevant any time the law of parties is considered an option for abortion-related offenses that, by their explicit terms, do not criminalize the conduct of a pregnant woman seeking or receiving an abortion—even one she conducts herself through medication or other means.

This limitation may be one reason some HB 1280 proponents sought to maintain the efficacy of the pre-Roe crimes (as discussed above), one of which provided that “whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice” (See Art. 1192 [or 4512.2]). That crime appears to have been specifically intended to address the problem with the standard rule for applying the law of parties; namely, that pre-Roe laws did not allow prosecution of the pregnant woman for the crime of abortion and thus, without her as a principal, there could be no accomplice liability for anyone who prescribed or furnished her with medication or other means for aborting her child. See, Moore v. State, 40 S.W. 287 (1897) (interpreting Art. 642 of the 1895 Penal Code, a precursor to Arts. 1192 and 4512.2). However, Texas already has other criminal laws that apply to third parties—for example, a ban on the provision of abortifacients to a pregnant woman by anyone other than a doctor (see H&SC §171.065, et al.)—so a restoration of any pre-Roe “accomplice” liability law may conflict with post-Roe, pre-Dobbs statutes already criminalizing such acts and therefore have to be hashed out through yet more in pari materia analysis by the courts.

Such an analysis may be yet further complicated by the legislature’s passage in 2021 of SB 8 (fetal heartbeat bill), which created a new form of civil liability in H&SC §171.208 (Civil Liability for Violation or Aiding or Abetting Violation) that applies to the performance of an elective abortion or the aiding or abetting of such an abortion in violation of the provision of that bill, but which expressly prohibits the criminal prosecution of those acts under that new law or Penal Code Chapters 19 and 22; see §171.207 (Limitations on Public Enforcement). While the constitutionality of SB 8 is still being litigated in the federal courts, its enactment may be relevant to any state courts seeking to determine what criminal offenses may or may not be prosecuted under a party liability theory.

Consequently—as with many of the other issues we’ve spotted in this memo—prosecutors should thoroughly research these issues before casting the net of party liability in a manner that exceeds its permissible scope in the criminal context.

Conclusion

As if often the case at the Legislature when criminal laws are drafted by authors without expertise in criminal law and then vetted by committees without expertise in criminal law, there remain many unanswered questions about the enforcement of HB 1280 and other laws that will have to be hashed out by the courts. We hope our initial research provides TDCAA members with the information needed to make informed decisions in any cases brought to them for enforcement. If you have further questions, please don’t hesitate to contact us.

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