Search and Seizure – Nuts and Bolts, Part II, Sharen Wilson, District Judge, Tarrant County

Mar. 5th, 2008 at 1:40 PM

ii. Plain view = no invasion of privacy

1. officer must lawfully be in the place

a. consent, invitation, serving a warrant, exigency

2. item must be in plain view

iii. Exigent circumstances = need to act immediately excuses the constitutional requirement of a warrant

1. Applies to police officers performing their crime-fighting or law enforcement function and authorizes officers to enter without warrant when there is immediate need.

2. factors include, McNairy v. State, 835 SW2d 101 (TexCrApp 1991)

a. some danger to officer or victims,

b. increased likelihood of apprehending a suspect, or

c. possible destruction of evidence.

iv. Emergency doctrine = same justification for immediate action as for exigent circumstances

1. police had immediate and objectively reasonable grounds to believe that there is a need to act immediately in order to protect or preserve life or avoid serious injury

2. police not motivated primarily by a desire to arrest a suspect or detect and seize evidence of a crime

3. objectively reasonable basis to connect the emergency to the place or area entered.

4. Laney v. State, 117 SW3d 854 (TexCrApp 2003) police called to HarrisCounty mobile home park after midnight for neighbors turning off each other’s electricity. D. detained, two young boys came out of darkened trailer, looked around and then went back in. D. was asked if ever arrested and said yes, for indecency with a child. Cop approached trailer, older boy came out and said younger brother was other boy and he was in back bedroom. Cop used flashlight to go in trailer and get second boy for boy’s safety and saw child pornography in plain view.

v. Incident to arrest = constitutionally reasonable

1. Need to search for and seize fruits, evidence or instrumentalities of crime which

a. may be discarded or destroyed by the arrestee

b. used by the arrestee to injure officer or escape

2. Arrest can be with or without warrant

3. Arrest must be lawful

4. Visual body cavity search incident to arrest. CI reported that D. and 2 others were selling drugs on a street corner and hiding their crack cocaine between his buttocks. Officer goes to the location and sees people matching description and marijuana on the ground, takes D. to concealed area of police station and search incident to the arrest saw the drugs in the D.’s buttocks. Held lawful search incident to arrest. Cochran in concurring opinion said “a person who intentionally uses a body cavity as a pocketbook cannot claim ‘King’s X’ when reasonable suspicion or PC points to that body cavity search.” McGee v. State, 105 SW3d 609 (TexCrApp 2003)

5. Scope of search and seizure

a. Chimel v. California, 395 US 218 (1973) - house – during a lawful arrest, police officers may search the person and the area within his immediate control but may not search any other areas of the house without a warrant. Two principles: (1) removal of weapons to ensure officer safety, (2) preservation of evidence

b. Belton v. New York, 453 US 454 (1981) – car - warrantless search of jacket and passenger compartment were within the arrestee’s immediate control. Bright line rule for officers – may search the entire passenger compartment and examine the contents of any containers found there, whether open closed, locked or unlocked.

i. Container should be interpreted broadly to include ”any object capable of holding another object… includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like.”

c. Thornton v. US, 541 US 615 (2004) – suspect lawfully parked and walked away from vehicle and then was approached and arrested outside the vehicle, majority no difference upheld under Belton

i. O’Conner concurrence – lower courts now treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than an exception justified by the twin rationales of Chimel

ii. Scalia concurrence - proposed rule – limit search incident to arrest to evidence of the crime for which the suspect was arrested. If arrest for drug, could search anywhere drugs could be found. If arrest for failure to wear a seatbelt, no search for drugs

d. Application to technology

i. Initially only evidence seized was tangible physical evidence – drugs, weapons

ii. Now allowed – retrieval of numbers from a pager, adding batteries and reactivating beeper, search of cell phone for text messages, call log, phone book, wireless Web inbox. Some of this information is analogous to searching an address book incident to arrest.

iii. iPhones – photos, computer data, Internet folders

iv. The iPhone Meets the Fourth Amendment, Law Review article, South Texas College of Law, Adam M. Gershowitz recommends possible solutions

1. Scalia concurrence limit searches to purpose of arrest

2. Limiting searches to open applications

3. Limit searches to small number of discrete steps to access data

4. Limit searches to data already downloaded on iPhone, rather than merely accessible.

vi. other reasonable searches – inventory and impoundment, border, school, pervasively regulated businesses

III. Exclusionary Rule –

a. “No evidence obtained by an officer or other person in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” CCP 38.23 (a)

b. “Officer or other person” Miles v. State, limo and Corvette case from above, Cochran opinion, gives history of exclusionary rule

i. 1922 case Welchek, Ct Crim App said no exclusionary rule in TX, not included in art.1 § 9. case was “Sheriff and other gentlemen” looking for whiskey runners

ii. 1925, Legislature enacted exclusionary rule including “other person,” broader than federal counterpart because of widespread problem of vigilant type private citizens acting in concert with the police conducting illegal searches for whiskey

iii. Core rationale for federal exclusionary rule is deterrence of police illegality – at time of prohibition, legislature presumably thought that vigilante action was threat to privacy interests of TX citizens

iv. Less support for this rationale today when private citizens don’t know what “exclusionary rule” means

v. “Until the legislature itself decides that the type of vigilante action prevalent during the early Prohibition era is no longer a threat to the privacy interests of Texas citizens,” Court of Criminal Appeals will enforce 38.23

vi. Held the private citizen and police have equal application of exclusionary rule for illegal conduct. If the police cannot search or seize, neither can the private citizen

vii. New Rule – a private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do

c. “violation of constitution and laws”

i. Sierra v. State, 218 SW3d 85, (TexCrApp 2007), violation of Vienna Convention does not require exclusion of evidence

d. “any criminal case”

i. Exclusionary rule applies to criminal trials, probation revocations, juvenile proceedings

ii. Does not apply to administrative license revocation proceedings

iii. Unclear whether applies to forfeiture proceedings

e. Exception to exclusionary rule – attenuation doctrine

i. evidence from unlawful search or seizure may not be required to be excluded if connection between unlawful search or seizure and the evidence was attenuated to remove the taint

ii. factors to consider in evaluating attenuation

1. giving of Miranda warnings

2. temporal proximity of the arrest and the statement or conduct

3. presence of intervening circumstances

4. purpose and flagrancy of police misconduct, Johnson v. State, 871 SW2d 744 (TexCrApp 1994), Cutsinger v. State, 206 SW3d 607 (TexCrApp 2006)

f. Exception to exclusionary rule – good faith exception

i. “It is an exception…that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issues by a neutral magistrate based on probable cause.” CCP 38.23(b)

g. Exception to exclusionary rule – inevitable discovery doctrine

i. allows evidence to be admitted if could have been discovered by non-violative means – not in Texas

ii. statutory construction of 38.23 does not allow an inevitable discovery doctrine, State v. Daugherty, 931 SW2d 268 (TexCrApp 1996)

IV. Procedure

a. Motions to suppress

i. Hearing can be held before or after trial begins at judge’s discretion

ii. Trial begins when jury is sworn

iii. D. has initial burden of producing evidence and convincing the court that

1. a search or seizure occurred

2. without a warrant or without consent

iv. State has burden then to show

1. if warrant - the warrant and supporting affidavit

2. if consent – the D consent was freely and voluntarily given

3. if warrantless – existence of a valid exception or reasonableness of search or seizure

v. Rules of evidence do NOT apply in a pretrial motion to suppress hearing

vi. The trial court’s ruling needs to be correct on appeal, but doesn’t have to be for the correct reasons

vii. Standard of review from motion to suppress is bifurcated

1. almost total discretion to trial court’s determination of historical facts and

2. de novo review of Court’s application of the law

Odom v. State, 200 SW3d 333 (Corpus Christi 2006)

viii. State and defense can both appeal pretrial ruling

ix. To preserve error, defense attorney should object and appeal under both the Fourth Amendment and art.1 § 9 Texas Const.

Excellent references: Texas Search and Seizure, Robert R. Barton

Texas Criminal Lawyers Handbook, Gill and Daniel

Tags:

Search and Seizure – Nuts and Bolts, Part I, Sharen Wilson, District Judge, Tarrant County

Mar. 5th, 2008 at 1:36 PM

Search and Seizure – Nuts and Bolts

MABA 2-28-08

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized.” Fourth Amendment, US Constitution

“The people shall be secure in their persons , houses, papers and possessions from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.” Art. 1 § 9, Texas Constitution

I. Intrusions on the Person

a. Mere encounter – not a seizure

i. Police can approach citizen on the street or any public place, ask questions, ask for id, ask for consent to search

ii. Knock on door of car or house and ask for consent to search

iii. No requirement of probable cause or reasonable suspicion because not a seizure

1. Seizure – what’s a seizure?

a. D. believes that he is not free to leave or terminate the encounter because

b. application of physical force which restrains the person’s freedom, OR

c. in the absence of physical force, a display of authority to which the person submits

b. Investigative detention for investigation

i. Terry stop – justified by lesser standard of reasonable suspicion, not probable cause

ii. In determining if investigative detention or arrest, it is not enough to look just at the following factors:

1. whether the person’s liberty of movement was restricted or restrained

2. whether the person was placed under actual restraint

3. whether a reasonable person would have believed that he or she was not free to leave

All of these factors are in both detention and arrest.

iii. totality of the circumstances – specific, articulable facts must create a reasonable suspicion in light of the officer’s experience and knowledge and other inferences from the facts that (1) some activity out of the ordinary is occurring or has occurred which warrants further investigation, (2) the detained person is connected to the unusual activity, and (3) the activity is related to a crime. Dean v. State, 938 SW2d 764 (Houston 1977)

iv. NOT “as consistent with innocent activity as with criminal activity” construct, Woods v. State, 956 SW2d 33 (TexCrApp 1997)

v. Relevant factors that relate to the magnitude of the intrusion upon the person’s freedom, courtesy of Barton, Texas Search and Seizure

1. whether the officer conducted an investigation

2. whether the suspect was handcuffed

3. whether the suspect was detained at gunpoint

4. whether the suspect was outnumbered by the officers

5. whether the officer used threatening language

6. whether the suspect was transported to another location

7. whether the suspect’s vehicle was blocked

8. whether the officer used other physical force

9. duration of the seizure

vi. Community caretaking function is an exception to the requirement that a temporary detention be justified by reasonable suspicion of criminal activity

1. police have duty to protect the general welfare and safety of the public at large

2. officer may not be primarily motivated by detection, investigation or acquisition of evidence of criminal conduct

3. narrow construct, Wright v. State, 7 SW3d 148 (TexCrApp 1999)

c. Arrest – must be justified by probable cause under Fourth Amendment of the United States Constitution or Article 1 § 9 of Texas Constitution

- La Fave – arrest is “a seizure made for the purpose of incarcerating a person and subjecting the person to criminal prosecution, rather than merely investigating; and the duration of the seizure is indefinite, rather than temporary”

-probable cause requires that at the moment of arrest, the facts and circumstances within the knowledge of the arresting officer and of which the officer has reasonably trustworthy information would justify a reasonable and prudent person in believing that a particular person has committed or is committing a crime, McGee v. State, 105 SW3d 609 (TexCrApp 2003)

i. Arrest without a warrant

1. allowed under the US Fourth Amendment reasonableness clause

2. TX – authority to arrest without a warrant only if found in statute – so more restrictive than the US Const.

3. TX – may only arrest without a warrant if

a. Probable cause AND

b. Statutory authority

4. CCP 14.01 – “ a peace officer or any person, may without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or an offense against the public peace. (b) a peace officer may arrest an offender with out a warrant for any offense committed in his presence or within his view.”

5. TX – civilians can arrest for felonies or offense against the public peace, CCP 14.01

Miles v. State, 241 SW3d 28 (TexCrApp 2007)

A Houston drunk driver rear-ends a limo with professional football players, the players exit the limo. The driver refuses to give his license and gets back in his Corvette and takes off. Tow truck driver who just arrives sees the drunk driver and gives chase down one-way streets. Five other tow trucks join the pursuit. They box the Corvette in a private parking lot and one of the tow truck drivers approaches the Corvette, and the driver points a gun at his temple. D. motion to suppress the gun because citizen did not have probable cause (PC) to arrest D., whether violated the law to arrest D. and whether a citizen has a right to pursue a person if the citizen believes the person committed a breach of the peace.

Held: tow truck driver was authorized to make a citizen’s arrest because he had PC to believe D. was DWI and D.’s driving posed a continuing danger to himself and others and was an offense against the public peace. Peace officers could have violated traffic laws in following drunk driver, so citizen-tow truck driver could, too, and actions not constitutionally unreasonable

6. only applies to adults – can arrest a juvenile without a warrant – FC 52.01 “taking a child into custody” one basis can be “pursuant to the laws of arrest”

7. CCP 14.02 within the view of the magistrate – felony or breach of the peace and magistrate verbally orders arrest of offender

ii. Arrest with a warrant

1. CCP 15.01 – written order from a magistrate, directed to a peace officer or some other person specially named, commanding him to take the body of the person accused of an offense to be dealt with according to law

2. Other jurisdictions – telephone warrants

3. Requirements

a. name of State of Texas

b. name of the arrestee or reasonably definite description

c. name the offense, arrestee is accused of

d. signed by the magistrate

i. everyone is a magistrate, CCP 2.09

4. Extends to all parts of the state, CCP 15.06

5. CCP 15.26 – warrant and affidavit presented to the magistrate is public information; and as soon as warrant is executed, clerk shall make warrant and affidavit available for public inspection. ATTORNEYS – get a copy, don’t have to wait for case to be filed and get from the State.

II. Search – occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.

a. Search with a warrant –

i. CCP 18.01 – written order, issued by a magistrate, directed to peace officer of the proper county, commanding him to search for property or thing and seize and bring before the magistrate

ii. Can have combination search and arrest warrants, CCP 18.03

iii. Must have authority to act in geographic jurisdiction of search

iv. Timing – must be executed in 3 days exclusive of date of issuance and date of execution

v. Supported by sworn affidavit – what if unsigned? Failure to sign by affiant is not the same as failure to take an oath, signature is simply the memorializing of the oath, Smith v. State, 207 SW3d 787 (TexCrApp 2006)

vi. Knock and Announce – not required in TX statutes, based on common law and constitutional requirement that searches be reasonable; US S.Ct has said no blanket exception to knock and announce requirement in all drug cases. TX cases say no knock entrance may be justified if affidavit states facts that establish reasonable suspicion that the particular circumstances present a threat of physical violence or a likelihood that evidence will be destroyed, Patterson v. State, 138 SW3d 643 (Dallas 2004)

So – judges should not be signing blanket no-knock warrants

Remedy – exclusion of evidence? No, because exclusionary rule requires causal connection between asserted unlawful conduct (no knock) and the evidence obtained; and the police would have discovered evidence regardless of the method of entry. State v. Callaghan, 222 SW3d 610 (Houston 2007)

vii. Search for mere evidence – warrant must be signed by a judge who is an attorney or elected official. TarrantCounty magistrates cannot sign mere evidence warrant. But magistrates can sign warrant for “instruments or fruits of the crime”.

1. CCP 18.01(c) has specific definition of PC required –

a. Specific offense committed

b. Specifically described item to be searched for and

c. Item is at that particular place

viii. Appellate review of search warrant – preference is for warrants – Court of Criminal Appeals held that because of strong preference for use of warrants, appellate court should assess a magistrate’s finding of PC with deference rather than grudging or negative attitude, even when the magistrate might have found that the affidavit did not contain sufficient facts to establish PC. Here warrant did not give time frame that substantiated reasonable belief that object of search was on premises at time warrant issued. Davis v. State, 202 SW3d 149 (TexCrApp 2006)

b. Search without warrant – per se unreasonable

c. Exceptions to warrant requirement - three – Stewart v. State, 681 SW2d 774 (Houston, 1984)

i. Consent = waiver of right to be free from unreasonable search & seizure

1. oral or written – good police practice

2. positive and unequivocal

3. freely and voluntarily given

4. scope of the consent –

a. conflict between persons with common authority

b. Georgia v. Randolph – 2006 US SCT held that one occupant may not give consent to search shared premises when co-occupant is present and refusing the search

c. Accord Odom v. State, 200 SW3d 333 (Corpus Christi 2006) building with absentee owner consents to search and present inhabitant objects to search – Held: refusal to consent to search is dispositive to person even in face of another with equal authority consenting

Tags:

Attorney Billing Should not include Details of Client Info or Investigation Specifics: SBOT OPIN 559

Feb. 11th, 2008 at 2:29 PM

THE PROFESSIONAL ETHICS COMMITTEE FOR THE STATE BAR OF TEXAS

July 2005

QUESTION PRESENTED

May a lawyer who is appointed to represent a defendant in a criminal

proceeding furnish to a court, in connection with obtaining payment

for the lawyer's services, a detailed description of the lawyer's

services, including the subject matter of records and documents

obtained and reviewed, the subjects of legal research carried out,

and the identity of persons contacted and interviewed?

STATEMENT OF FACTS

A lawyer is appointed to represent an indigent defendant in a

criminal case. The lawyer is paid a fee on an hourly basis, subject

to certain conditions, including limitations on the total amount of

the fee and the number of hours the lawyer expends for various

services.

As a condition of payment, the lawyer is required to submit to the

court a statement itemizing services and the time spent in

representing the defendant. The lawyer's statement must include a

detailed description of the work performed by the lawyer, including

the subject matter of records and documents examined by the lawyer,

the subjects of legal research conducted by the lawyer, and the

identity of persons contacted or interviewed.

DISCUSSION

The question presented raises issues concerning disclosure of

confidential information. Rule 1.05 of the Texas Disciplinary Rules

of Professional Conduct provides in pertinent part:

"(b) Except as permitted by paragraphs (c) and (d), or as required by

paragraphs (e), and (f), a lawyer shall not knowingly:

(1) Reveal confidential information of a client or a former client

to:

(i) a person that the client has instructed is not to receive the

information; or

(ii) anyone else, other than the client, the client's

representatives, or the members, associates, or employees of the

lawyer's law firm.

(2) Use confidential information of a client to the disadvantage of

the client unless the client consents after consultations.

(3) Use confidential information of a former client to the

disadvantage of the former client after the representation is

concluded unless the former client consents after consultation or the

confidential information has become generally known.

(4) Use privileged information of a client for the advantage of the

lawyer or of a third person, unless the client consents after

consultation."

The exceptions provided in Rule 1.05(c), (d), (e), and (f) are not

relevant to the question presented.

Professional Ethics Committee Opinions 532 (September 2000) and 552

(August 2004) dealt with fact situations somewhat similar to the

facts involved in this opinion in that these opinions involved the

submission of detailed billing information to a third party auditor

for an insurance company that was responsible for payment of a

lawyer's fee for representing an insured. Citing Rule 1.08(e), these

opinions state that a lawyer may not accept compensation from a

person other than the client unless there is no interference with the

lawyer's independent judgment or with the client-lawyer relationship

and confidential information relating to the relationship is

protected as required by Rule 1.05.

Absent the consent of the client or other circumstance permitting

disclosure under Rule 1.05, the dissemination by any means of

confidential information, in this instance the lawyer's statement

containing such detailed information, is prohibited. The

circumstances involved in this opinion do not provide any basis other

than informed client consent for the disclosure of confidential

client information.

Although a lawyer for an indigent defendant may not be prohibited

from providing a report or statement containing a general description

of services and hours, such as "Legal Research - X hours"

or "Interviewing potential witness - Y hours," a lawyer may not

disclose confidential information obtained in connection with his

representation of an indigent defendant unless the client consents.

Under the facts presented, the lawyer must secure the client's

informed consent to divulge confidential information required for

payment of fees and advise the defendant that the delivery of

confidential information required for payment may adversely affect

the defendant. To obtain informed consent, the lawyer must advise the

client of the disadvantages to the client's legal position which may

arise should the confidential information lose its protected status

through the lawyer's disclosure of the information in the statement.

A consent given by the defendant at the time the lawyer is appointed

or otherwise in advance of the preparation of the statement would not

normally constitute informed consent since the facts detailed in the

statement and the possible consequences of disclosure of that

information could not possibly be known and discussed with the client

at the time of such premature consent.

Although Rule 1.05(c)(4) authorizes a lawyer to reveal confidential

information when the lawyer has reason to believe such action is

necessary in order to comply with a court order, the Committee

believes that this provision does not apply to the facts presented

because the requirement to provide confidential information is simply

a condition to the payment for the lawyer's services and is not an

unconditional court order which might be the subject of challenge in

an appellate court.

CONCLUSION

A lawyer, who is appointed to represent a defendant in a criminal

proceeding, is not permitted under the Texas Disciplinary Rules of

Professional Conduct to furnish to a court in connection with

obtaining payment for the lawyer's services a statement containing a

detailed description of the lawyer's services, including the subject

matter of records and documents obtained and reviewed, the subjects

of legal research, and the identity of persons contacted and

interviewed, unless the defendant consents to the disclosure of such

confidential information after consultation about the consequences of

the disclosure.

Tags:

SYNTHESIS, SCIENCE, TESTING ETHANOL BLOOD, BREATH, URINE:DARREL COFFEY

Feb. 11th, 2008 at 10:11 AM

A BRIEF OVERVIEW OF THE HISTORY OF ETHANOL SYNTHESIS AND THE SCIENCE OF TESTING FOR THE PRESENCE OF ETHANOL IN HUMAN BLOOD, BREATH, AND URINE

I. History of Alcohol (Ethanol)
The fermentation of grains and starches to simple sugars then to alcohol for human consumption nearly coincides with the progression of human civilization. The use of simple fermentation and evolution of distillation gave civilization a way to store, condense, and ship seasonal commodities that other wise would have spoiled

a. Chemistry of Alcohol

CH₃Oh - methyl alcohol - methanol

Wood Alcohol—poisonous solvent

15m mt blindness = 30ml death

Absorbed into the skin

CG₅CHOH-CH₃—

Isoprop alcohol—

2propanol - rubbing alcohol—toxic

Methonal

OH—Hyroxy group

derivative of H₂O

Primary Alcohol

Hydroscopic

Highly polar

“like dissolves like”

The human body is 68-72% water.

Acetone C₃H₆O CH₃C¹¹-CH₃

Acetaldhyde C₂H₄O

Ethannal CH₃C=O

Methyether C₂H₆O CH₅-OCH₃

b. Ethanol Synthesis
ETOH - ETHANOL, Grain OH, Ethyl OH beverage alcohol is one of the oldest known chemical reactions. Starch (C₆H₅O₅) x enzymes/yeast→ Glucose (C₆H₁₂O_o) →2C₂H₅OH+2CO₂(Ethanol Carbon dioxide) Ethanol can be toxic in large amounts. It can also be metabolized safely by the body. Denatured Alcohol is ethanol mixed in Methanol or Benzene, and is used as a fuel or solvent. It is toxic and is not absorbed through the skin.

i. C₃H₆O Acetone CH₃CCH3

ii. C₂H₄O Acetonedehyde-Ethanal CH₃CH=O

iii. C₂H₆O Methyl Ether, Methoxymethane CH₃OCH₃

II. Ethanol Metabolism

a. History and Science of Alcohol Metabolism
Historically, we have known the general concepts of use and abuse of ethanol consumption. That is the cause and effect of Ethanol usage and consumption. Ethanol is generally ingested as a beverage. It has no effect until it gets into your brain via your bloodstream. The dosage amount consumed and frequency of usage all combine with differences in the human body conditions to make different effects on individuals.

b. Absorption and Elimination
ETOH is ingested by drinking and the stomach absorption occurs within the diffusing walls of stomach.
Base of stomach a small intestine
Pyloric vale (pyloris) – absorbed into the bloodstream in the small intestine.
ETOH is toxic. Our body starts to expel toxicity in sweat and breath when absorbed (2-10%). The expulsion of the ETOH occurs by sweat and breath. We break down ETOH chemically in the liver by metabolizing in a slow controlled oxidation reaction with Alcohol Dehyrogenase as the catalytic enzyme to convert to CO & H2O.

c. Pioneers of Ethanol Testing Science
Prof. E. M. P. Widmark (Sweden) - Metabolism of ETOH, Gender Bias and Standard Rates of Absorption & Elimination
Prof. R. E. Borkenstein (Indiana) – Role Of Drinking Drivers in Traffic Accidents; Fatalities Testing and Prevention
Prof Kurt Dubowski (Oklahoma) – Modern Father of Breath Testing for ETOH Concentration.
Prof. A. W. Jones (Sweden) – Preeminent Modern Researcher in Blood and Breath testing.

III. Qualitative and Quantitative Analysis of Body Fluids and Gases
Qualitative Analysis → Analysis to determine the presence of a know chemical in a given sample.
Quantitative Analysis → Analysis to determine the Quantity of a known chemical of a measurable amount in a given sample.
The basic scientific principle in which breath testing is based is Henry’s Law which states that if a gas and liquid are in a closed container constriction of the gas in the air above the liquid is proportional to the concentration of the gas which is dissolved in the liquid. If a sample of blood is kept in a stopped container, alcohol will evaporate from the blood until the concentration of air and blood reached equilibrium. Henry’s Constant (Partitic on Ration) 2100; states that the concentration of alcohol in normal blood is said to be approximately 2100 times as great to the concentration in the air in equilibrium. Thus, the greater the ETOH concentration is in the blood, the greater the greater the concentration of ETOH in the breath.

a. Breathe Testing

i. Sensor cell, T-Cell, and Taguchi Cell
The semiconductor device was the original sensor, employed by the interlock industry, this sensor is known as a Taguchi Cell, T-Cell, or Senor Cell. A T-Cell sensor is a simple silicon based product that has some level of alcohol specificity. There are beads of transition metal oxide resting on a tin oxide plate. The beads are heated to given temperature and voltage is applied to produce a standing current. When the breath sample is blown, a chemical reaction takes place, which causes a resistance change in the in the oxide plate. It is this resistance change that measured to produce the Breath Alcohol Content (BrAC) reading. This technology has been used in a variety of breathing test instruments including roadside screening devices (PBT’s) used by police departments throughout the US. Eighty percent of the devices in use in the United States utilize a T-cell sensor. The major advantages of the method of alcohol detection are its accuracy, relatively low price and durability.
There are two primary disadvantages of this sensor. First it requires frequent calibration. This means that its stability of measurement over time may vary and, hence, it must be serviced at regular and frequent intervals.
Second, the senor cell is not specific to alcohol, it responds to other combustible gases and vapors. The sensor cell unit can fail from cigarette smoke, high acidity food products (pizza, Mexican food), high acidity fruits (oranges, lemon, line), anything-containing alcohol (mouth wash, cough syrup, breath sprays), gasoline fumes, hair spray, perfumes, and colognes.
The senor cell device fails on these substances other than alcohol because this device reacts to gases. Certain substances will cause excess stomach acid, which causes the body to produce methane gas. This will cases the device to fail, but there will be no consistency in the failure patterns like those by alcohol. Cigarette smoke just contaminates the cell and causes a failure. As a consequence, it can, on occasion, give a positive reading even when the individual has not consumed alcohol. Clients are instructed to rinse with water before each and every test to eliminate these results. The client should be able to provide a clean breath sample and be on their way.

ii. Electro-Chemical Fuel Cell Analysis
The new standard for ETOH testing is moving to a FUEL CELL sensors. Although much more costly, these sensors provide a more accurate sample with fewer repair issues. With an alcohol-specific device, also called a fuel cell, the substance of interest, in our case alcohol, undergoes a chemical oxidation reaction, which produces a measurable electrical response. In a fuel cell reaction, the electrons lost from the alcohol molecule are transferred to an electrode, which maintains a consistent current. As more alcohol molecule are transferred to an electrode, the consistent electrical current decreases. It is the electrical current decreases under the constant, which is measured to determine the alcohol level of the sample. Alcohol specific or fuel cells units will on fail from alcohol or any product containing alcohol. This technology is used in a variety of roadside screening devices and passive sensors. Fuel cell-based devices are typically more expensive than the sensor cell but they have two main advantages.
First, they are alcohol specific. They do not respond to organic hydrocarbon solvents, so positive results can only occur if alcohol is in the sample. This eliminates the nuisance of unjustified (e.g. false positives) ignitions lockouts due to the presence of other volatile substances such as cigarette smoke and vehicle exhaust.
Fuel Cell-based Devices also have greater stability in calibration. This provides grater accuracy over the long term and eliminates the need for frequent calibration. With an alcohol specific device, all positive results can only be a consequence of the presence of alcohol. The used has more confidence in the system and they are able to avoid false positive results, which could hamper their driving ability.

iii. IFR Spectrographic Analysis
Molecules absorb light (energy) of well defined wave lengths. Bands of specific wave length absorption function to identify specific molecules. By measuring the absorption rate of a given standard we can determine the amount of a given molecule in a sample. The more ETOH that is presence in a sample,the more light is absorbed. A photo detector converts IFR light pulses into electrical pulses which are interpreted by a microprocessor to determine said sample breath. The number generated is grams of ethanol per 210 liters of breathe.

iv. Dual Technology Instruments
The major technological advancements in Breathe testing are the instruments that use the fuel cell and the IFR technology to analyze breathe using two complete independent technologies to make a precise result. The instruments are portable and some quantify temperature and pressure of the breath sample. These instruments use a 9.5um IR frequency which eliminates the need for filters on a chopper wheel. The instruments are dual AC/DC and can be mobile or stationary. The breathe temperature and pressure measurements will eliminate guessing on Hypo equations.

b. Blood Testing
The relation of ETOH in the blood to the impairment of the central nervous system would best be tested by an analysis of brain tissue blood. This being highly impractical on a live human, we simply test the blood circulating through the brain. The brain will be covered by the circulating blood to function; therefore, when properly tested blood is the best indicator of the brains alcohol content, and be the most accurate indicator of the degree of alcohol intoxication. Validity of the sample is most important: 1) the drawing site selection, 2) arteries blood versus venous blood, and 3) forensic analyses versus hospital analysis samples are all important considerations in ht testing of the blood sample. Implied consent law does not prohibit drawing of blood sample pursuant to warrant.
Beeman v. State (Tex Crim App 2002 85sw2d613).
Plasma→ Whole blood minus cells spun out by the centrifugal force.
Serum→ Whole blood minus fibrinogen or other clotting materials and cells. BAC = X / 1.16 = Mean ___________
This ratio is subject to debate among scientists with 1.09 – 1.18 ranges.

i. Automated Headspace Gas Chromatography
Gas Chromatographs is the primary tool for precise analysis and determination of ETOH in blood serum or plasma.
The sample is removed from storage. The Sample is prepared for testing and injected by an automatic injection system. The sample will be heated in the head space and compounds will be separated. The gas vapor will be injected automatically in the column and be carried then by the gas flow. The various compounds separate at the different rates in order and can be identified by peak calibrated columns.
Generally GC has control specimen with each test run. The measurements of the control are available. GC is more time consuming and labor intensive; however, it is he gold standard for precision and accuracy of ETOH testing.
Detection attached to the column measures the passage of the components and generates a signal proportional to the amount of substance in a sample.
To verify GC results you will need 1) A copy of the test, 2) copy of the QC and, 3) verification of known std. ETOH
Equations are in manuals and books, you should get scientists/ toxicologists to help you verify the results. Generally, the instruments did the match for you; however, you are obligated to check he results.
GC. Hewlett Packard and Perkins Elmen are common manufactures of GC instruments.

ii. Immuno/Essay Hospital Blood Test
Enzymatic Immunoassay EIA—these instruments are highly automated doing many types of test by the same instrument. Johnson & Johnson “VITROS” Abbott “Axsm” SyncroncxSystems” Alya and Roche all manufacture EIA instruments.
Alcohol dehydrogenate (ADH) catalyzes the oxidation of Ethanol (ETOH) to acetaldehyde with the concurrent reduction of nicotinamide adenine dinoclotide (NAD) to NADH ETOH + ADH = acetaldehyde + NADH. The concentration of the ETOH in the sample is determined in the instrument by measuring the increase in the NADH concentration at the 340 nm wavelengths of light after 5 minute incubation at 37º C.
Hospital stat tests are generally instant for medical purposes:

§ No chain of custody

§ No retest

§ Operator may run 30 samples at once and samples could be destroyed.

The swabbing procedure may not be documented. The sample could be highly affected both mechanically and chemically by IV Fluids and location of IV needle.

IV. Scientific Instruments and Analysis

a. Procedure and Protocol

b. Rate of Error/Accuracy

c. Warranty & Fitness of Purpose

d. Qualified Operator

e. Chain of Custody

f. Science of Analysis

g. Sample Preservation/Storage

h. Source Code/Microprocessor Instruction

Tags:

Capital Murder Defense After Williams, Wiggins, and Rompilla: William S. Harris

Feb. 6th, 2008 at 3:12 PM

Capital Murder Defense After Williams, Wiggins, and Rompilla

Presented to the Mexican American Bar Association

September 29, 2005

by:

William S. Harris

Attorney at Law

307 West 7^th Street, Suite 1905

Fort Worth, Texas 76102

(817) 332-5575, (817) 335-6060

wmsharris.law@sbcglobal.net

mailto:wsharris.ch@ionexmail.com

Capital Defense after Williams & Wiggins

The caselaw.

Lockhart v. Ohio
Held that the trier of fact must be able to consider mitigation. It is an 8^th amendment requirement. Ohio had a mandatory death penalty imposed by the judge if certain facts were found to exist at the guilt stage.
Eddings v. Oklahoma
Sentencer must be able to consider any mitigating fact or circumstance. Not just youth, which was all the trial court considered here.
Penry v. Lynaugh
Strickland v. Washington,
The two prong test for ineffective assistance of counsel (IAC).
Deficient performance.
That creates a probability that the outcome would have been different, which in turn is an effect that undermines our confidence in the verdict.
Williams v. Taylor
Facts: The deceased was found dead in his home and his death was attributed to alcohol poisoning. Some time later, while in jail for an unrelated offense, Williams wrote the police that he was sorry about killing the deceased during a robbery. Williams said he went looking for an implement with which to kill the deceased and found a mattock in the bathroom. He hit the deceased first in the chest, then in the back. While at first he was wheezing, ultimately, the deceased died. Williams took his money. Police traced this letter to Williams and he was tried for capital murder. (He also admitted brutally assaulting an elderly woman, who at the time of trial was still in a vegetative state and not expected to recover. He was convicted of capital murder.
Williams’ punishment case.
, 529 U.S. 362, 120 S.Ct. 1495 (2000). 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),, 492 U.S. 302 (1989) which brought about all the changes in Texas law, and ultimately brought us our current final issue and definition of mitigating circumstance.. 455 U.S. 104, 112, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)

Defendant’s mother testified. She testified briefly that D was an nice boy and not violent.

Two neighbors testified, one of which was not interviewed beforehand, but was noticed by the defense counsel in the audience and called to testify upon the spur of the moment. Also testified that D was a nice boy and not violent.

Defense also called a psychologist. Essentially testified that D had related to him that, in a prior robbery, he unloaded the gun to keep anyone from getting hurt.

In cross examination the D atty. emphasized the fact that police did not know about the murder until D came forward.

He argued that there was little reason to show mercy to D, since he had not shown mercy to his victim. Emphasizing that it was hard to find a reason for mercy.

Williams was sentenced to death.

At habeas his counsel showed the following:

Counsel did not introduce evidence of the Petitioner's background.

Counsel did not introduce evidence that Petitioner was abused by his father.

Counsel did not introduce testimony from correctional officers who were willing to testify that defendant would not pose a danger while incarcerated. Nor did counsel offer prison commendations awarded to Williams for his help in breaking up a prison drug ring and for returning a guard's missing wallet.

Several character witnesses were not called to testify.... [T]he testimony of Elliott, a respected CPA in the community, could have been quite important to the jury....

Finally, counsel did not introduce evidence that Petitioner was borderline mentally retarded, though he was found competent to stand trial."

Essentially, the trial counsel testified he had no strategic reason for these failures.

The Court held that failure to introduce this evidence at punishment was both deficient performance and that the deficient performance was such that we cannot rely upon the punishment verdict. Williams got a new trial.

Significantly, Williams had a record of violent crimes in the past.

Wiggins v. Smith
Delivered in June 2003, 7-2, written by O’Conner.
Facts:
Unlike Williams, Wiggins had no significant criminal history.
Maryland apparently has a system by which a separate jury is empaneled some time after the conviction. His counsel decided to pursue a defense of retrying his role in the case and, if they lost that, then putting on a mitigation case. To do this they asked the judge to bifurcate the punishment hearing. (Why they thought this might happen is unclear since they were asking to retry the guilt determination to some extent, then asking for a third trial on punishment if they lost on that.) Not surprisingly, the judge said no.
Apparently, the defense had not prepared their mitigation case. Although they promised a mitigation case in opening, when they finished their case recasting Wiggins’ role in the crime, the made a bill of particulars saying they would have put on experts and a mitigation case if the court had granted their motion to bifurcate the punishment hearing.
While they said that Wiggins had had a rough life, at no point did they put on evidence of his family background or his life history.
Wiggins received a death sentence.
Habeas:
Habeas counsel hired a social worker who detailed Wiggins bleak life history:
Mother chronic alcoholic.
Left children home to fend for themselves, they ate paint chips and garbage.
Mother had sex with men with the children in the same bed.
Children then put in foster homes. Wiggins was physically abused by first two foster mothers.
Wiggins sexually abused by second foster father (raped).
Wiggins Ran away and lived on the streets.
He was returned to foster care and was gang raped by foster brothers.
Went to job corps – supervisor sexually molested him.
Defense counsel were public defenders.
The Public Defenders Office had funding available at the time to hire a social worker to do a social history.
It was standard practice at that time in Maryland to do a social history as part of the standard preparation for the punishment phase of a capital trial.
Once again, this was held to be deficient performance that harmed the defendant sufficiently to meet the harm standard of Strickland.

, ___ U.S. ___, 123 S.Ct. 2527 (2003).

The ABA standards.

The Supreme Court uses the ABA standards for determining deficiency of performance in both Williams & Wiggins.

Reference to the ABA standards date back to Strickland v. Washington.

Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4- 1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take *689 account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.

Strickland v. Washington, 466 U.S. 668, 688-689, 104 S.Ct. 2052, 2065 (U.S.1984).

Note, however, that here the reference is to a general set of guidelines regarding the defense function.

Tags:

Art. 45.051. TCCP, CLASS C,EXPUNCTION, SUSPENSION SENTENCE- DFAJ

Jan. 23rd, 2008 at 2:06 PM

Art. 45.051. SUSPENSION OF SENTENCE AND DEFERRAL OF FINAL DISPOSITION.
(a) On a plea of guilty or nolo contendere by a
defendant or on a finding of guilt in a misdemeanor case punishable
by fine only and payment of all court costs, the judge may, at the
judge's discretion, defer further proceedings without entering an
adjudication of guilt and place the defendant on probation for a
period not to exceed 180 days. An order of deferral under this
subsection terminates any liability under a bail bond or an
appearance bond given for the charge.
(a-1) Notwithstanding any other provision of law, as an
alternative to requiring a defendant charged with one or more
offenses to make payment of all court costs as required by
Subsection (a), the judge, in the judge's discretion, may:
(1) allow the defendant to enter into an agreement for
payment of those costs in installments during the defendant's
period of probation;
(2) require an eligible defendant to discharge all or
part of those costs by performing community service under Article
45.049; or
(3) take any combination of actions authorized by
Subdivision (1) or (2).
(b) During the deferral period, the judge may, at the
judge's discretion, require the defendant to:
(1) post a bond in the amount of the fine assessed to
secure payment of the fine;
(2) pay restitution to the victim of the offense in an
amount not to exceed the fine assessed;
(3) submit to professional counseling;
(4) submit to diagnostic testing for alcohol or a
controlled substance or drug;
(5) submit to a psychosocial assessment;
(6) participate in an alcohol or drug abuse treatment
or education program;
(7) pay the costs of any diagnostic testing,
psychosocial assessment, or participation in a treatment or
education program either directly or through the court as court
costs;
(8) complete a driving safety course approved under
Chapter 1001, Education Code, or another course as directed by the
judge;
(9) present to the court satisfactory evidence that
the defendant has complied with each requirement imposed by the
judge under this article; and
(10) comply with any other reasonable condition.
(b-1) If the defendant is younger than 25 years of age and
the offense committed by the defendant is a traffic offense
classified as a moving violation:
(1) Subsection (b)(8) does not apply;
(2) during the deferral period, the judge shall
require the defendant to complete a driving safety course approved
under Chapter 1001, Education Code; and
(3) if the defendant holds a provisional license,
during the deferral period the judge shall require that the
defendant be examined by the Department of Public Safety as
required by Section 521.161(b)(2), Transportation Code; a
defendant is not exempt from the examination regardless of whether
the defendant was examined previously.
(b-2) A person examined as required by Subsection (b-1)(3)
must pay a $10 examination fee.
(b-3) The fee collected under Subsection (b-2) must be
deposited to the credit of a special account in the general revenue
fund and may be used only by the Department of Public Safety for the
administration of Chapter 521, Transportation Code.
(c) On determining that the defendant has complied with the
requirements imposed by the judge under this article, the judge
shall dismiss the complaint, and it shall be clearly noted in the
docket that the complaint is dismissed and that there is not a final
conviction. If the complaint is dismissed, a special expense not to
exceed the amount of the fine assessed may be imposed.
(c-1) If the defendant fails to present within the deferral
period satisfactory evidence of compliance with the requirements
imposed by the judge under this article, the court shall:
(1) notify the defendant in writing, mailed to the
address on file with the court or appearing on the notice to appear,
of that failure; and
(2) require the defendant to appear at the time and
place stated in the notice to show cause why the order of deferral
should not be revoked.
(c-2) On the defendant's showing of good cause for failure
to present satisfactory evidence of compliance with the
requirements imposed by the judge under this article, the court may
allow an additional period during which the defendant may present
evidence of the defendant's compliance with the requirements.
(d) If on the date of a show cause hearing under Subsection
(c-1) or, if applicable, by the conclusion of an additional period
provided under Subsection (c-2) the defendant does not present
satisfactory evidence that the defendant complied with the
requirements imposed, the judge may impose the fine assessed or
impose a lesser fine. The imposition of the fine or lesser fine
constitutes a final conviction of the defendant. This subsection
does not apply to a defendant required under Subsection (b-1) to
complete a driving safety course approved under Chapter 1001,
Education Code, or an examination under Section 521.161(b)(2),
Transportation Code.
(d-1) If the defendant was required to complete a driving
safety course or an examination under Subsection (b-1) and on the
date of a show cause hearing under Subsection (c-1) or, if
applicable, by the conclusion of an additional period provided
under Subsection (c-2) the defendant does not present satisfactory
evidence that the defendant completed that course or examination,
the judge shall impose the fine assessed. The imposition of the
fine constitutes a final conviction of the defendant.
(e) Records relating to a complaint dismissed as provided by
this article may be expunged under Article 55.01. If a complaint is
dismissed under this article, there is not a final conviction and
the complaint may not be used against the person for any purpose.
(f) This article does not apply to:
(1) an offense to which Section 542.404,
Transportation Code, applies; or
(2) a violation of a state law or local ordinance
relating to motor vehicle control, other than a parking violation,
committed by a person who:
(A) holds a commercial driver's license; or
(B) held a commercial driver's license when the
offense was committed.

Added by Acts 1981, 67th Leg., p. 894, ch. 318, Sec. 1, eff. Sept. 1,
1981. Amended by Acts 1987, 70th Leg., ch. 226, Sec. 1, eff. Sept.
1, 1987; Acts 1989, 71st Leg., ch. 399, Sec. 1, eff. June 14, 1989.
Subsec. (1) amended by Acts 1991, 72nd Leg., ch. 775, Sec. 19, eff.
Sept. 1, 1991. Amended by Acts 1991, 72nd Leg., ch. 835, Sec. 4,
eff. Sept. 1, 1991; Acts 1993, 73rd Leg., ch. 900, Sec. 5.07, eff.
Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 532, Sec. 1,
eff. Sept. 1, 1999; 1999, 76th Leg., ch. 1387, Sec. 1, eff. Sept. 1,
1999. Renumbered from Vernon's Ann.C.C.P. art. 45.54 and amended
by Acts 1999, 76th Leg., ch. 1545, Sec. 50, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 3.002, eff. Sept. 1,
2001; Amended by Acts 2003, 78th Leg., ch. 991, Sec. 12, eff. Sept.
1, 2003; Amended by Acts 2003, 78th Leg., ch. 1182, Sec. 1, eff.
Sept. 1, 2003; Subsec. (c) amended by Acts 2003, 78th Leg., 3rd
C.S., ch. 8, Sec. 4.01, eff. Jan. 11, 2004; Subsec. (c-1) amended
by Acts 2003, 78th Leg., 3rd C.S., ch. 8, Sec. 4.03, eff. Jan. 11,
2004.

Amended by:
Acts 2005, 79th Leg., Ch. 90, Sec. 1, eff. September 1, 2005.
Acts 2005, 79th Leg., Ch. 281, Sec. 3.01(a), eff. June 14,
2005.
Acts 2005, 79th Leg., Ch. 357, Sec. 6, eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 508, Sec. 1, eff. September 1,
2007.
Acts 2007, 80th Leg., R.S., Ch. 714, Sec. 1, eff. September 1,
2007.
Acts 2007, 80th Leg., R.S., Ch. 921, Sec. 3.001, eff.
September 1, 2007.

Tags:

§ 38.123. Texas Penal Code UNAUTHORIZED PRACTICE OF LAW.

Jan. 23rd, 2008 at 1:57 PM

§ 38.123. UNAUTHORIZED PRACTICE OF LAW. (a) A person
commits an offense if, with intent to obtain an economic benefit for
himself or herself, the person:
(1) contracts with any person to represent that person
with regard to personal causes of action for property damages or
personal injury;
(2) advises any person as to the person's rights and
the advisability of making claims for personal injuries or property
damages;
(3) advises any person as to whether or not to accept
an offered sum of money in settlement of claims for personal
injuries or property damages;
(4) enters into any contract with another person to
represent that person in personal injury or property damage matters
on a contingent fee basis with an attempted assignment of a portion
of the person's cause of action; or
(5) enters into any contract with a third person which
purports to grant the exclusive right to select and retain legal
counsel to represent the individual in any legal proceeding.
(b) This section does not apply to a person currently
licensed to practice law in this state, another state, or a foreign
country and in good standing with the State Bar of Texas and the
state bar or licensing authority of any and all other states and
foreign countries where licensed.
(c) Except as provided by Subsection (d) of this section, an offense under Subsection (a) of this section is a Class A misdemeanor.
(d) An offense under Subsection (a) of this section is a
felony of the third degree if it is shown on the trial of the offense
that the defendant has previously been convicted under Subsection
(a) of this section.

Added by Acts 1993, 73rd Leg., ch. 723, § 5, eff. Sept. 1, 1993.

Tags:

§ 38.122. Texas Penal Code: FALSELY HOLDING ONESELF OUT AS A LAWYER.

Jan. 23rd, 2008 at 1:47 PM

§ 38.122. FALSELY HOLDING ONESELF OUT AS A LAWYER.
(a) A person commits an offense if, with intent to obtain an
economic benefit for himself or herself, the person holds himself
or herself out as a lawyer, unless he or she is currently licensed
to practice law in this state, another state, or a foreign country
and is in good standing with the State Bar of Texas and the state bar
or licensing authority of any and all other states and foreign
countries where licensed.
(b) An offense under Subsection (a) of this section is a
felony of the third degree.
(c) Final conviction of falsely holding oneself out to be a
lawyer is a serious crime for all purposes and acts, specifically
including the State Bar Rules.

Added by Acts 1993, 73rd Leg., ch. 723, § 5, eff. Sept. 1, 1993.

Tags:

§ 38.12.Texas Penal Code BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT

Jan. 23rd, 2008 at 1:42 PM

§ 38.12. BARRATRY AND SOLICITATION OF PROFESSIONAL EMPLOYMENT.
(a) A person commits an offense if, with intent to obtain an economic benefit the person:
(1) knowingly institutes a suit or claim that the
person has not been authorized to pursue;
(2) solicits employment, either in person or by
telephone, for himself or for another;
(3) pays, gives, or advances or offers to pay, give, or
advance to a prospective client money or anything of value to obtain
employment as a professional from the prospective client;
(4) pays or gives or offers to pay or give a person
money or anything of value to solicit employment;
(5) pays or gives or offers to pay or give a family
member of a prospective client money or anything of value to solicit
employment; or
(6) accepts or agrees to accept money or anything of
value to solicit employment.
(b) A person commits an offense if the person:
(1) knowingly finances the commission of an offense
under Subsection (a);
(2) invests funds the person knows or believes are
intended to further the commission of an offense under Subsection
(a); or
(3) is a professional who knowingly accepts employment
within the scope of the person's license, registration, or
certification that results from the solicitation of employment in
violation of Subsection (a).
(c) It is an exception to prosecution under Subsection (a)
or (b) that the person's conduct is authorized by the Texas
Disciplinary Rules of Professional Conduct or any rule of court.
(d) A person commits an offense if the person:
(1) is an attorney, chiropractor, physician, surgeon,
or private investigator licensed to practice in this state or any
person licensed, certified, or registered by a health care
regulatory agency of this state;
(2) with the intent to obtain professional employment
for himself or for another, sends or knowingly permits to be sent to
an individual who has not sought the person's employment, legal
representation, advice, or care a written communication that:
(A) concerns an action for personal injury or
wrongful death or otherwise relates to an accident or disaster
involving the person to whom the communication is addressed or a
relative of that person and that was mailed before the 31st day
after the date on which the accident or disaster occurred;
(B) concerns a specific matter and relates to
legal representation and the person knows or reasonably should know
that the person to whom the communication is directed is
represented by a lawyer in the matter;
(C) concerns an arrest of or issuance of a
summons to the person to whom the communication is addressed or a
relative of that person and that was mailed before the 31st day
after the date on which the arrest or issuance of the summons
occurred;
(D) concerns a lawsuit of any kind, including an
action for divorce, in which the person to whom the communication is
addressed is a defendant or a relative of that person, unless the
lawsuit in which the person is named as a defendant has been on file
for more than 31 days before the date on which the communication was
mailed;
(E) is sent or permitted to be sent by a person
who knows or reasonably should know that the injured person or
relative of the injured person has indicated a desire not to be
contacted by or receive communications concerning employment;
(F) involves coercion, duress, fraud,
overreaching, harassment, intimidation, or undue influence; or
(G) contains a false, fraudulent, misleading,
deceptive, or unfair statement or claim.
(e) For purposes of Subsection (d)(2)(E), a desire not to be
contacted is presumed if an accident report reflects that such an
indication has been made by an injured person or that person's
relative.
(f) An offense under Subsection (a) or (b) is a felony of the
third degree.
(g) Except as provided by Subsection (h), an offense under
Subsection (d) is a Class A misdemeanor.
(h) An offense under Subsection (d) is a felony of the third
degree if it is shown on the trial of the offense that the defendant
has previously been convicted under Subsection (d).
(i) Final conviction of felony barratry is a serious crime
for all purposes and acts, specifically including the State Bar
Rules and the Texas Rules of Disciplinary Procedure.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1989, 71st Leg., ch. 866, § 2, eff. Sept. 1,
1989; Acts 1993, 73rd Leg., ch. 723, § 2, eff. Sept. 1, 1993;
Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994; Acts
1997, 75th Leg., ch. 750, § 2, eff. Sept. 1, 1997.

Tags:

Texas Code of Judicial Conduct Part II

Jan. 16th, 2008 at 10:04 PM

Code of Judicial Conduct Code of Judicial Conduct
CANON 5
Refraining From Inappropriate Political Activity

(1)     A judge or judicial candidate shall not:
(i)     make pledges or promises of conduct in office regarding pending or impending cases, specific classes of cases, specific classes of litigants, or specific propositions of law that would suggest to a reasonable person that the judge is predisposed to a probable decision in cases within the scope of the pledge;
(ii)     knowingly or recklessly misrepresent the identity, qualifications, present position, or other fact concerning the candidate or an opponent; or
(iii)     make a statement that would violate Canon 3B(10).
(2)     A judge or judicial candidate shall not authorize the public use of his or her name endorsing another candidate for any public office, except that either may indicate support for a political party. A judge or judicial candidate may attend political events and express his or her views on political matters in accord with this Canon and Canon 3B(10).
(3)     A judge shall resign from judicial office upon becoming a candidate in a contested election for a non-judicial office either in a primary or in a general or in a special election. A judge may continue to hold judicial office while being a candidate for election to or serving as a delegate in a state constitutional convention or while being a candidate for election to any judicial office.
(4)     A judge or judicial candidate subject to the Judicial Campaign Fairness Act, Tex. Elec. Code §253.151, et seq. (the “Act”), shall not knowingly commit an act for which he or she knows the Act imposes a penalty. Contributions returned in accordance with Sections 253.155(e), 253.157(b) or 253.160(b) of the Act are not a violation of this paragraph.

COMMENT

A statement made during a campaign for judicial office, whether or not prohibited by this Canon, may cause a judge's impartiality to be reasonably questioned in the context of a particular case and may result in recusal.

CANON 6
Compliance with the Code of Judicial Conduct

A.     The following persons shall comply with all provisions of this Code:
(1)     An active, full-time justice or judge of one of the following courts:
(a)     the Supreme Court,
(b)     the Court of Criminal Appeals,
(c)     courts of appeals,
(d)     district courts,
(e)     criminal district courts, and
(f)     statutory county courts.
(2)     A full-time commissioner, master, magistrate, or referee of a court listed in (1) above.
B.     A County Judge who performs judicial functions shall comply with all provisions of this Code except the judge is not required to comply:
(1)     when engaged in duties which relate to the judge's role in the administration of the county;
(2)     with Canons 4D(2), 4D(3), or 4H;
(3)     with Canon 4G, except practicing law in the court on which he or she serves or in any court subject to the appellate jurisdiction of the county court, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto.
(4)     with Canon 5(3).
C.     Justices of the Peace and Municipal Court Judges.
(1)     A justice of the peace or municipal court judge shall comply with all provisions of this Code, except the judge is not required to comply:
(a)     with Canon 3B(8) pertaining to ex parte communications; in lieu thereof a justice of the peace or municipal court judge shall comply with 6C(2) below;
(b)     with Canons 4D(2), 4D(3), 4E, or 4H;
(c)     with Canon 4F, unless the court on which the judge serves may have jurisdiction of the matter or parties involved in the arbitration or mediation; or
(d)     if an attorney, with Canon 4G, except practicing law in the court on which he or she serves, or acting as a lawyer in a proceeding in which he or she has served as a judge or in any proceeding related thereto.
(e)     with Canons 5(3).
(2)     A justice of the peace or a municipal court judge, except as authorized by law, shall not directly or indirectly initiate, permit, nor consider ex parte or other communications concerning the merits of a pending judicial proceeding.This subsection does not prohibit communications concerning:
(a)     uncontested administrative matters,
(b)     uncontested procedural matters,
(c)     magistrate duties and functions,
(d)     determining where jurisdiction of an impending claim or dispute may lie,
(e)     determining whether a claim or dispute might more appropriately be resolved in some other judicial or non-judicial forum,
(f)     mitigating circumstances following a plea of nolo contendere or guilty for a fine-only offense, or
(g)     any other matters where ex parte communications are contemplated or authorized by law.
D.     A Part-time commissioner, master, magistrate, or referee of a court listed in 6A(1) above:
(1)     shall comply with all provisions of this Code, except he or she is not required to comply with Canons 4D(2), 4E, 4F, 4G or 4H, and
(2)     should not practice law in the court which he or she serves or in any court subject to the appellate jurisdiction of the court which he or she serves, or act as a lawyer in a proceeding in which he or she has served as a commissioner, master, magistrate, or referee, or in any other proceeding related thereto.
E.     A Judge Pro Tempore, while acting as such:
(1)     shall comply with all provisions of this Code applicable to the court on which he or she is serving, except he or she is not required to comply with Canons 4D(2), 4D(3), 4E, 4F,4G or 4H, and
(2)     after serving as a judge pro tempore, should not act as a lawyer in a proceeding in which he or she has served as a judge or in any other proceeding related thereto.
F.     A Senior Judge, or a former appellate or district judge, or a retired or former statutory county court judge who has consented to be subject to assignment as a judicial officer:
(1)     shall comply with all the provisions of this Code except he or she is not required to comply with Canon 4D(2),4E, 4F,4G, or 4H, but
(2)     should refrain from judicial service during the period of an extra-judicial appointment not permitted by Canon 4H.
G.     Candidates for Judicial Office.
(1)     Any person seeking elective judicial office listed in Canon 6A(1) shall be subject to the same standards of Canon 5 that are required of members of the judiciary.
(2)     Any judge who violates this Code shall be subject to sanctions by the State Commission on Judicial Conduct.
(3)     Any lawyer who is a candidate seeking judicial office who violates Canon 5 or other relevant provisions of this Code is subject to disciplinary action by the State Bar of Texas.
(4)     The conduct of any other candidate for elective judicial office, not subject to paragraphs (2) and (3) of this section, who violates Canon 5 or other relevant provisions of the Code is subject to review by the Secretary of State, the Attorney General, or the local District Attorney for appropriate action.
H.     Attorneys.
Any lawyer who contributes to the violation of Canons 3B(7), 3B(10), 4D(4), 5, or 6C(2), or other relevant provisions of this Code, is subject to disciplinary action by the State Bar of Texas.

CANON 7
Effective Date of Compliance

A person to whom this Code becomes applicable should arrange his or her affairs as soon as reasonably possible to comply with it.

CANON 8
Construction and Terminology of the Code

A.     Construction.
The Code of Judicial Conduct is intended to establish basic standards for ethical conduct of judges.It consists of specific rules set forth in Sections under broad captions called Canons.
The Sections are rules of reason, which should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances.The Code is to be construed so as not to impinge on the essential independence of judges in making judicial decisions.
The Code is designed to provide guidance to judges and candidates for judicial office and to provide a structure for regulating conduct through the State Commission on Judicial Conduct.It is not designed or intended as a basis for civil liability or criminal prosecution. Furthermore, the purpose of the Code would be subverted if the Code were invoked by lawyers for mere tactical advantage in a proceeding.
It is not intended, however, that every transgression will result in disciplinary action. Whether disciplinary action is appropriate, and the degree of discipline to be imposed, should be determined through a reasonable and reasoned application of the text and should depend on such factors as the seriousness of the transgression, whether there is a pattern of improper activity and the effect of the improper activity on others or on the judicial system.
B.     Terminology.
(1)     "Shall" or "shall not" denotes binding obligations the violation of which can result in disciplinary action.
(2)     "Should" or "should not" relates to aspirational goals and as a statement of what is or is not appropriate conduct but not as a binding rule under which a judge may be disciplined.
(3)     "May" denotes permissible discretion or, depending on the context, refers to action that is not covered by specific proscriptions.
(4)     "De minimis" denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality.
(5)     "Economic interest" denotes ownership of a more than de minimis legal or equitable interest,or a relationship as officer, director, advisor or other active participant in the affairs of a party, except that:
(i)     ownership of an interest in a mutual or common investment fund that holds securities is not an economic interest in such securities unless the judge participates in the management of the fund or a proceeding pending or impending before the judge could substantially affect the value of the interest;
(ii)     service by a judge as an officer, director, advisor or other active participant, in an educational, religious, charitable, fraternal, or civic organization or service by a judge's spouse, parent or child as an officer, director, advisor or other active participant in any organization does not create an economic interest in securities held by that organization;
(iii)     a deposit in a financial institution, the proprietary interest of a policy holder in a mutual insurance company, of a depositor in a mutual savings association or of a member in a credit union, or a similar proprietary interest, is not an economic interest in the organization unless a proceeding pending or impending before the judge could substantially affect the value of the interest; and
(iv)     ownership of government securities is not an economic interest in the issuer unless a proceeding pending or impending before the judge could substantially affect the value of the securities.
(6)     "Fiduciary" includes such relationships as executor, administrator, trustee, and guardian.
(7)     "Knowingly," "knowledge," "known" or "knows" denotes actual knowledge of the fact in question. A person's knowledge may be inferred from circumstances.
(8)     "Law" denotes court rules as well as statutes, constitutional provisions and decisional law.
(9)     "Member of the judge's (or the candidate's) family" denotes a spouse, child, grandchild, parent, grandparent or other relative or person with whom the candidate maintains a close familial relationship.
(10)     "Family member residing in the judge's household" means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge's family, who resides at the judge's household.
(11)     "Require." The rules prescribing that a judge "require" certain conduct of others are, like all of the rules in this Code, rules of reason.The use of the term "require" in that context means a judge is to exercise reasonable direction and control over the conduct of those persons subject to the judge's direction and control.
(12)     "Third degree of relationship."The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.
(13)     "Retired Judge" means a person who receives from the Texas Judicial Retirement System, Plan One or Plan Two, an annuity based on service that was credited to the system.(Secs. 831.001 and 836.001,V.T.C.A. Government Code [Ch. 179, Sec. 1, 71st Legislature (1989)]
(14)     "Senior Judge" means a retired appellate or district judge who has consented to be subject to assignment pursuant to Section 75.001, Government Code. [Ch. 359, 69th Legislature, Reg. Session (1985)]
(15)     "Statutory County Court Judge" means the judge of a county court created by the legislature under Article V, Section 1, of the Texas Constitution, including county courts at law, statutory probate courts, county criminal courts, county criminal courts of appeals, and county civil courts at law. (Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 1601(18), 71st Legislature (1989)])
(16)     "County Judge" means the judge of the county court created in each county by Article V, Section 15, of the Texas Constitution.(Sec. 21.009, V.T.C.A. Government Code [Ch. 2, Sec. 1601(18), 71st Legislature (1989)])
(17)     "Part-time" means service on a continuing or periodic basis, but with permission by law to devote time to some other profession or occupation and for which the compensation for that reason is less than that for full-time service.
(18)     "Judge Pro Tempore" means a person who is appointed to act temporarily as a judge.

Tags:

code of judicial conduct

Texas Code of Judicial Conduct, Part I

Jan. 16th, 2008 at 10:02 PM

Code of Judicial Conduct

Office of Court Administration

Judicial Ethics | Judicial Conduct | Judicial Office | Judicial Ethics Opinions | Texas Ethics Commission

Canon 1 A Judge Should Uphold the Integrity and Independence of the Judiciary.
Canon 2 A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities.
Canon 3 A Judge Should Perform the Duties of Office Impartially and Diligently.
Canon 4 A Judge May Conduct the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations.
Canon 5 A Judge Should Refrain From Inappropriate Political Activity.
Canon 6 A Judge Shall Comply with the Code of Judicial Conduct.
Canon 7 Effective Date of Compliance
Canon 8 Construction and Terminology of the Code.

Preamble

Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law. Intrinsic to all sections of this Code of Judicial Conduct are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law.

The Code of Judicial Conduct is not intended as an exhaustive guide for the conduct of judges.They should also be governed in their judicial and personal conduct by general ethical standards.The Code is intended, however, to state basic standards which should govern the conduct of all judges and to provide guidance to assist judges in establishing and maintaining high standards of judicial and personal conduct.

CANON 1
Upholding the Integrity and Independence of the Judiciary

An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing high standards of conduct, and should personally observe those standards so that the integrity and independence of the judiciary is preserved.The provisions of this Code are to be construed and applied to further that objective.

CANON 2
Avoiding Impropriety and the Appearance of Impropriety In All of the Judge's Activities

A.     A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
B.     A judge shall not allow any relationship to influence judicial conduct or judgment A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
C.     A judge shall not knowingly hold membership in any organization that practices discrimination prohibited by law.

CANON 3
Performing the Duties of Judicial Office Impartially and Diligently

A.     Judicial Duties in General. The judicial duties of a judge take precedence over all the judge's other activities. Judicial duties include all the duties of the judge's office prescribed by law.In the performance of these duties, the following standards apply:
B.     Adjudicative Responsibilities.
(1)     A judge shall hear and decide matters assigned to the judge except those in which disqualification is required or recusal is appropriate.
(2)     A judge should be faithful to the law and shall maintain professional competence in it. A judge shall not be swayed by partisan interests, public clamor, or fear of criticism.
(3)     A judge shall require order and decorum in proceedings before the judge.
(4)     A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity, and should require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control.
(5)     A judge shall perform judicial duties without bias or prejudice.
(6)     A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, and shall not knowingly permit staff, court officials and others subject to the judge's direction and control to do so.
(7)     A judge shall require lawyers in proceedings before the court to refrain from manifesting, by words or conduct, bias or prejudice based on race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status against parties, witnesses, counsel or others.This requirement does not preclude legitimate advocacy when any of these factors is an issue in the proceeding.
(8)     A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge's direction and control.This subsection does not prohibit:
(a)     communications concerning uncontested administrative or uncontested procedural matters;
(b)     conferring separately with the parties and/or their lawyers in an effort to mediate or settle matters, provided, however, that the judge shall first give notice to all parties and not thereafter hear any contested matters between the parties except with the consent of all parties;
(c)     obtaining the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond;
(d)     consulting with other judges or with court personnel;
(e)     considering an ex parte communication expressly authorized by law.
(9)     A judge should dispose of all judicial matters promptly, efficiently and fairly.
(10)     A judge shall abstain from public comment about a pending or impending proceeding which may come before the judge's court in a manner which suggests to a reasonable person the judge's probable decision on any particular case. This prohibition applies to any candidate for judicial office, with respect to judicial proceedings pending or impending in the court on which the candidate would serve if elected. A judge shall require similar abstention on the part of court personnel subject to the judge's direction and control.This section does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.This section does not apply to proceedings in which the judge or judicial candidate is a litigant in a personal capacity.
(11)     A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.The discussions, votes, positions taken, and writings of appellate judges and court personnel about causes are confidences of the court and shall be revealed only through a court's judgment, a written opinion or in accordance with Supreme Court guidelines for a court approved history project.
C.     Administrative Responsibilities.
(1)     A judge should diligently and promptly discharge the judge's administrative responsibilities without bias or prejudice and maintain professional competence in judicial administration, and should cooperate with other judges and court officials in the administration of court business.
(2)     A judge should require staff, court officials and others subject to the judge's direction and control to observe the standards of fidelity and diligence that apply to the judge and to refrain from manifesting bias or prejudice in the performance of their official duties.
(3)     A judge with supervisory authority for the judicial performance of other judges should take reasonable measures to assure the prompt disposition of matters before them and the proper performance of their other judicial responsibilities.
(4)     A judge shall not make unnecessary appointments. A judge shall exercise the power of appointment impartially and on the basis of merit. A judge shall avoid nepotism and favoritism. A judge shall not approve compensation of appointees beyond the fair value of services rendered.
(5)     A judge shall not fail to comply with Rule 12 of the Rules of Judicial Administration, knowing that the failure to comply is in violation of the rule.
D.     Disciplinary Responsibilities.
(1)     A judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action.
(2)     A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action. A judge having knowledge that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct that raises a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects shall inform the Office of the General Counsel of the State Bar of Texas or take other appropriate action.

CANON 4
Conducting the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations

A.     Extra-Judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:
(1)     cast reasonable doubt on the judge's capacity to act impartially as a judge; or
(2)     interfere with the proper performance of judicial duties.
B.     Activities to Improve the Law. A judge may:
(1)     speak, write, lecture, teach and participate in extra-judicial activities concerning the law, the legal system, the administration of justice and non-legal subjects, subject to the requirements of this Code; and,
(2)     serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may assist such an organization in raising funds and may participate in their management and investment, but should not personally participate in public fund raising activities.He or she may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system and the administration of justice.
C.     Civic or Charitable Activities. A judge may participate in civic and charitable activities that do not reflect adversely upon the judge's impartiality or interfere with the performance of judicial duties. A judge may serve as an officer, director, trustee or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the profit of its members, subject to the following limitations:
(1)     A judge should not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly or frequently engaged in adversary proceedings in any court.
(2)     A judge shall not solicit funds for any educational, religious, charitable, fraternal or civic organization, but may be listed as an officer, director, delegate, or trustee of such an organization, and may be a speaker or a guest of honor at an organization's fund raising events.
(3)     A judge should not give investment advice to such an organization, but may serve on its board of directors or trustees even though it has the responsibility for approving investment decisions.
D.     Financial Activities.
(1)     A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, interfere with the proper performance of the judicial duties, exploit his or her judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.This limitation does not prohibit either a judge or candidate from soliciting funds for appropriate campaign or officeholder expenses as permitted by state law.
(2)     Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity including the operation of a business. A judge shall not be an officer, director or manager of a publicly owned business.For purposes of this Canon, a "publicly owned business" is a business having more than ten owners who are not related to the judge by consanguinity or affinity within the third degree of relationship.
(3)     A judge should manage any investments and other economic interests to minimize the number of cases in which the judge is disqualified.As soon as the judge can do so without serious financial detriment, the judge should divest himself or herself of investments and other economic interests that might require frequent disqualification. A judge shall be informed about the judge's personal and fiduciary economic interests, and make a reasonable effort to be informed about the personal economic interests of any family member residing in the judge's household.
(4)     Neither a judge nor a family member residing in the judge's household shall accept a gift, bequest, favor, or loan from anyone except as follows:
(a)     a judge may accept a gift incident to a public testimonial to the judge; books and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice;
(b)     a judge or a family member residing in the judge's household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a gift from a friend for a special occasion such as a wedding, engagement, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants;
(c)     a judge or a family member residing in the judge's household may accept any other gift, bequest, favor, or loan only if the donor is not a party or person whose interests have come or are likely to come before the judge;
(d)     a gift, award or benefit incident to the business, profession or other separate activity of a spouse or other family member residing in the judge's household, including gifts, awards and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties.
E.     Fiduciary Activities.
(1)     A judge shall not serve as executor, administrator or other personal representative, trustee, guardian, attorney in fact or other fiduciary, except for the estate, trust or person of a member of the judge's family, and then only if such service will not interfere with the proper performance of judicial duties.
(2)     A judge shall not serve as a fiduciary if it is likely that the judge as a fiduciary will be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction.
(3)     The same restrictions on financial activities that apply to a judge personally also apply to the judge while acting in a fiduciary capacity.
F.     Service as Arbitrator or Mediator. An active full-time judge shall not act as an arbitrator or mediator for compensation outside the judicial system, but a judge may encourage settlement in the performance of official duties.
G.     Practice of Law. A judge shall not practice law except as permitted by statute or this Code. Notwithstanding this prohibition, a judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge's family.
H.     Extra-Judicial Appointments. Except as otherwise provided by constitution and statute, a judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system, or the administration of justice. A judge, however, may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, and cultural activities.
I.     Compensation, Reimbursement and Reporting.
(1)     Compensation and Reimbursement. A judge may receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Code, if the source of such payments does not give the appearance of influencing the judge's performance of judicial duties or otherwise give the appearance of impropriety.
(a)     Compensation shall not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity.
(b)     Expense reimbursement shall be limited to the actual cost of travel, food, and lodging reasonably incurred by the judge and, where appropriate to the occasion, by the judge's family.Any payment in excess of such an amount is compensation.
(2)     Public Reports. A judge shall file financial and other reports as required by law.

Tags:

code of judicial conduct

Letter to SEN. RODNEY ELLIS, Author of SB-7, Re: TARRANT CO. JUDGES' "FAVORITE" ATTY APPOINTMENTS

Jan. 14th, 2008 at 2:54 PM

Esteemed Senator Ellis,

Attached is an analysis of the administration of Court Appointed Attorneys System under SB-7 in Tarrant County, Texas. This analysis was researched and written in 2007 by Attorney Don Hase of Arlington, Texas.

The gist of the report is that the County and District Judges had found (and many still do) ways to circumvent SB-7 and appoint "favorite" attorneys. This was done through an ad hoc system in which the judges would FIND "favorite" attorneys in the courtroom and these lawyers WERE appointed on the spot for ONE DAY DISPOSITIONS of cases when the Defendants were out on Bond on Misdemeanor and Felony cases. At times the Judges would have special "Jail Runs" bringing in-custody defendants into the courtroom where the judges would FIND "favorite" attorneys. County Auditor records reveal that one such attorney received $300,000.00 for appointments in a one year period.

Some District Judges in Tarrant County continue to appoint "favorite' attorneys on PROBATION REVOCATIONS. District Judge Everret Young, who does not practice this appointment of "favorite" attorneys, has informed that about 66% of all probationers in each District Court return under arrest for REVOCATION OF PROBATION. Of those returned an estimated 99% [This writer's estimate] received court appointed attorneys. The number of appointments run into the thousands. Tarrant County has NINE District Courts in this urban county. Attorney Hase wrote:

In addition to this situation, some judges (particularly in felony courts) had gotten away from using the OAA wheel for many in-custody defendants facing probation revocations. Once again, some judges had favorite lawyers: lawyers who they believed (and experience had shown) could ‘move’ these cases quickly. Additionally, the Auditor’s page on the county website listed real check amounts paid to attorneys on these appointments. In early 2007, numbers were added that revealed that a SMALL NUMBER OF LAWYERS were receiving well over $100,000, IN A YEAR on court appointments; for ONE LAWYER, THE TOTAL WAS APPROXIMATELY $300,000. Although one of the main goals of the FDA had been to eliminate patronage, in Tarrant in the FDA era, patronage existed at a level never before imagined. The lawyers had effectively been divided into the ‘haves’ and the ‘have-nots.’

Attorneys on the Wheel for First Degree Felonies and the lesser felonies received during the same period approximately $30-40,000 in the same time period. These attorneys were not on the "favorite" list. Some of the District Judges suggest that the appointments on Felony Probation Revocations ARE NOT UNDER THE JURISDICTION of SB-7 and thus they are free to bestow these appointments on their "favorite" attorneys.

Senator, I believe that your office should investigate this matter and provide for amendments to SB-7 to prohibit the patronage reported by Attorney Don Hase.

The Hase Analysis is also on line at http://mabafortworth.livejournal.com

It is submitted that TAXPAYER MONEY is being utilized in a course to enhance the judges' "favorite" lawyers.

The belief is that the Judges expect ONE-DAY-DISPOSITIONS OF MISDEMEANOR AND FELONY CASES AND FELONY REVOCATIONS and to improve the number of monthly dispositions in their courts and also to provide for the "favorite" attorneys of their choice.

I

FYI, this writer is not on any of the Felony Wheels in Tarrant County.

Sincerely yours,

J. R. Molina, Attorney

Board Certified in Criminal Law since 1977
1301 North Houston Street
Fort Worth, Texas 76164

jrmolina@charter.net

817-624-4700 Voice
817-624-9434 Fax
817-626-4004 Hotline Anytiime

Tags:

TARRANT COUNTY COURT APPOINTED ATTORNEYS SYSTEM ANALYSIS 2007 PART IV,Don Hase

Jan. 13th, 2008 at 4:32 PM

TARRANT COUNTY COURT APPOINTED ATTORNEYS SYSTEM ANALYSIS 2007 PART IV

STATEMENT OF JOHN DEFENDANT

My name is John Defendant. I am the Defendant in the following felony case currently pending in the ___ District Court of _________ County:

CAUSE NO. CHARGE:

__________ SEXUAL ASSAULT OF A CHILD

My attorney, __________, has explained to me the punishment range in this case. I understand that if I am convicted the range of punishment for Sexual Assault of a Child is 2-20 years in the Institutional Division of the Texas Department of Criminal Justice, and a fine of up to $10,000.

My attorney has explained to me that the State of Texas has made a plea bargain offer to me. The offer is: ___ years in the Institutional Division of the Texas Department of Criminal Justice.

I have had ample opportunity to discuss the case with my attorney. I have decided to ACCEPT the State's plea bargain offer. I have not been threatened in any way to accept the State's plea bargain offer. It is my decision and my decision alone.

______________________

Defendant

DATE: _________

-OR-

I have had ample opportunity to discuss this case with my attorney. I have decided to REJECT the State's plea bargain offer. I have not been threatened in any way to refuse the State's plea bargain offer. It is my decision and my decision alone.

___________________________

Defendant

DATE:

I UNDERSTAND THAT THE DISTRICT ATTORNEY IS UNDER NO OBLIGATION TO REOPEN PLEA NEGOTIATIONS AT ANY TIME, AND THAT MY CASE WILL PROBABLY BE TRIED AS A RESULT OF MY DECISION.

Justice’s Low Tire

Attorneys accuse local judges of favoring friends and quick trials over defendants’ rights.

By JEFF PRINCE

The highlight of the meeting was supposed to be a speech by former TarrantCounty prosecutor Terri Moore, who recently joined the DallasCountyDA’s office after twice failing to unseat Tim Curry as district attorney here. But the dynamic Moore was upstaged by a short, slight, gray-haired attorney named Travis Young, whose 10-minute battle cry at a March 8 meeting of the Tarrant County Criminal Defense Lawyers Association created a commotion among the 100 or so folks in attendance.

“That took courage,” one of the lawyers said afterward.

“Travis Young is a brave man,” said another.

What did the longtime Fort Worth attorney do to earn such peer praise? He criticized the good ol’ boy system in local courts. Young, who made about $29,000 last year as a court-appointed attorney in addition to his private practice, pointed to other lawyers who had raked in five to 10 times as much by representing poor defendants. Judges are supposed to spread those cases among a long list of qualified attorneys. Some judges, however, call on favorites more often than others.

It took a while for Young to get started. First, he asked the crowd in the back room at Joe T. Garcia’s Mexican Restaurant whether any reporters were there. He didn’t want the news media listening, because, he said, the problem could be solved in-house.

“We don’t need their help,” he said.

The fellow in charge of the meeting started toward a Fort Worth Weekly reporter, but other attorneys stopped him. Several said they wanted the media there because the problems at the courthouse had been covered up for too long.

“Sit down, you’re not going anywhere,” a lawyer said firmly to the Weekly reporter.

Young lamented that he would have to tone down his remarks, but went ahead. His original speech must have been a doozy — even the toned-down version was impassioned and accusatory.

“We have an emergency. We have a crisis,” he said of the case appointment system. “I don’t want trouble, but trouble is going to come if people don’t listen.”

Young described how judges are sidestepping the state’s Fair Defense Act and continuing to give the nod far too often to their favorite attorneys, a system he described as patronage. The law, enacted in 2001, was designed to speed up the process of getting legal representation for poor defendants and to ensure competent representation, in part by prompting judges to choose lawyers from a pre-approved list.

That computerized list is known in Fort Worth as “the wheel.” Cases are supposed to be assigned in order on a rotating basis. If an attorney is busy or unable to accept a case, a judge is then supposed to go to the next name on the wheel. The assigned attorney meets with the client and then gets back in touch with the judge.

The law “changed more than just the wheel. It made what we used to call patronage illegal,” Young said, referring to favoritism shown to lawyers who could be trusted to convince defendants to enter a plea and avoid trial.

Before the law, also called Senate Bill 7, was passed, judges frequently gave the majority of their court appointments to a small handful of attorneys, often appointing the same attorney to represent a half-dozen or so defendants at a time, all called up on the same “jail run.” At the time, critics charged that judges favored attorneys who would convince their clients to plead out, thus quickly reducing the judge’s caseload and improving his case-handling record. If an inmate insisted on his innocence and on a trial, which can take days or weeks, a judge could purposely delay appointing an attorney, leaving the defendant sweating it out in jail and adding to the pressure to cooperate.

“It makes it tough to represent somebody if you have judges who think a case should be [pleaded out] instead of going to trial,” said attorney Brian Willett. “The purpose of the system was where you couldn’t have a judge appoint the case to someone just because he liked an attorney.” But despite the law, in TarrantCounty, “there are certain attorneys because of friendship or whatever, who are getting the lion’s share of them,” he said.

Most local judges weren’t happy with the legislation. They said it wasn’t needed and complained that the new system added steps to the process, reducing their courts’ efficiency and increasing the cost to taxpayers. Some didn’t let a little thing like a new law change their way of doing business — thanks to a loophole that allows judges to stray from the wheel for “good cause.” For instance, in February, more than half the appointments made by County Criminal Court Judge Phil Sorrells went to only three attorneys, including Trent Loftin, who received 27 of the 79 appointments.

Longtime Fort Worth attorney J.R. Molina said some judges interpret “good cause” far too liberally, basically ignoring the Fair Defense Act’s intent.

“We’ve had this problem for multiple years now, and it continues on and on,” Molina said. “Some of the judges have been told, and people have complained to them, and it continues.”

He disagrees with Young’s opinion that the matter should be handled quietly and without media scrutiny.

“It’s only when the press is involved that it embarrasses someone, and things move,” he said. “This involves taxpayers’ money and public trust. I don’t think the public wants their tax money to be administered in this fashion.”

Indeed, the county courthouse was abuzz the day after Young’s tirade. And the furor seemed to create an immediate response.

“The judges are looking at this to see if there are any changes that ought to be made to the system,” Criminal Courts Administrator Clete McAlister said. “We’ve learned something that causes us now to re-examine what we are doing, and we need to find out what the problems are and fix them.”

He said the primary concern was in the misdemeanor courts, where many cases are heard each day, and large jail runs are standard procedure. About 60 percent of the time, judges appoint attorneys who are already in the courtroom or nearby rather than going to the wheel and slowing down the process, McAlister said.

“That’s what has caused many of those numbers to look bad,” he said. “If they go to the wheel, that attorney [whose name comes up] might not be available that day.”

Attorneys, however, aren’t buying the excuse. They say judges could check the wheel a couple of days prior to a jail run and make appointments on a fair, rotating basis. McAlister, though, said the county’s computer software isn’t set up to let judges access the wheel in advance of hearing cases.

“That’s the way our system is set up,” he said. “That may be a modification we need to make to the software.”

In the felony courts, judges are ignoring the wheel about 40 percent of the time, McAlister said, although they appear ready to more closely follow the spirit of the Fair Defense Act.

“I think all of them will be changing that practice if they haven’t already,” he said. “They believed they had latitude to appoint attorneys for probation revocations that they had a lot of confidence in, and they thought they had that authority, and now they’re questioning whether they do. Some of them have already stopped that practice and are appointing directly from the wheel now.”

To get their names on the wheel in the first place, attorneys must meet qualifications and be OK’d by a majority of local judges. That can be a chore for good attorneys who have run afoul of judges in the past.

In February, Fort Worth Attorney L. Patrick Davis accused felony judges of judicial misconduct after being denied inclusion on the felony wheel. He never received an explanation and believes he was blackballed after clashing with Judge Sharen Wilson, whom he tried to have removed from a case last year after accusing her of intimidating a defendant. Meanwhile, DallasCounty judges approved him for their felony wheel, and he is representing indigent defendants there.

“They’re keeping qualified attorneys off the wheel [in TarrantCounty] because it keeps the conviction rate up, people are pled out, and judges clear their dockets quicker,” he said. “The Fair Defense Act was passed in part because of the good ol’ boy system. That’s the way it’s still working now in this county. If you fight for your client and you stand up and do your job, you’re punished by the judiciary.”

BEST INDIGENT DEFENSE ENVIRONMENT FOR EFFECTIVE REPRESENTATION

Separate out the indigency issue from the merits of the case.

Screeners: all defendants desiring appointed counsel should be professionally screened to determine eligibility.

Setting notices should fully disclose to defendants how the indigent defense system works.

Statistics: The Task Force should require, and all counties should keep, accurate public statistics on which courts use professional screening and which courts use the attorney appointment wheel (and require ‘good cause’ showings on all deviations from the wheel).

Sunlight: completely transparent system.

Single felony revocation wheel.

Tags:

TARRANT COUNTY COURT APPOINTED ATTORNEYS SYSTEM ANALYSIS 2007 PART III,Don Hase

Jan. 13th, 2008 at 4:27 PM

TARRANT COUNTY COURT APPOINTED ATTORNEYS SYSTEM ANALYSIS 2007 PART III

CDC 2 - Revocation	CDC 2 - Revocation	Not Used 8
CCC 5 - Revocation	Not Used 4	Not Used 4
State Jail Felony	State Jail Felony	State Jail Felony
CDC 1 - Revocation	Not Used 5	Not Used 5
CDC 3 - Revocation	Not Used 2	Not Used 2
396th - Revocation	Not Used 6	Not Used 6
213th - Revocation	396th - Revocation	396th - Revocation
371st - Revocation	Not Used 1	Not Used 1
1st Degree - Non-Death Capital	371st - Revocation	371st - Revocation
2nd & 3rd Degree Felony	1st Degree - Non-Death Capital	1st Degree - Non-Death Capital
372th - Revocation	2nd & 3rd Degree Felony	2nd & 3rd Degree Felony
Appeals	Not Used 3	Not Used 3
CDC 4 - Revocation	Appeals	Appeals
Death Penalty - Capital	Not Used 7	Not Used 7
Misdemeanor A & B	Death Penalty - Capital	Death Penalty - Capital
	Misdemeanor A & B	Misdemeanor A & B

Thus, prior to November 15, the ECFS listed 15 wheels, while there were six wheels listed in the Plan’s application process. The differences in the six wheels in the Plan application process and the pre-November 15 wheels listed on the left were noted by the word “Revocation.” It was not clear from looking at ECFS before November 15 which courts actually used their own separate revocation wheels, and which courts did not. But as of November 15, only three felony courts were listed as using their own separate revocation wheels. As of November 16, that number was reduced to two. It is clear that before November 15, not all of the nine felony courts used their own revocation wheels. Some did, some did not. This information was not published.

However, beyond ECFS, nowhere is it publicly listed which courts have their own revocation wheels, and which ones use the regular revocation wheel (which, as noted above is combined with the Second and Third degree felony wheel).

For the first six wheels, there is a public application and qualification process. These Public Application & Qualification Wheels (PAQW) assure the public that attorneys representing indigent defendants at taxpayer expense have attained certain minimum qualifications. For the courts which do use revocation wheels specific to that court, there is no public application process. Those judges rely on the “Ad Hoc” language in the Plan: “The judge of a district court hearing criminal cases or the judge’s designee may deviate from the rotation system and appoint an attorney in that court who is specifically qualified under the Plan on an ad hoc basis to represent indigent defendants who are charged in a motion to revoke or adjudicate community supervision in that court.”

As noted above, the March 10, 2006 “Review of the Tarrant County Indigent Defense System” by the Texas Task Force on Indigent Defense said that judges not using the OAA wheel in probation revocations was not a good practice: “There is no way to ‘ensue that appointments are allocated among qualified attorneys in a manner that is fair, neutral and non-discriminatory’ as the statute requires. The current practice of judges directly appointing attorneys from the bench without following the rotation system appears to contradict the provisions of the indigent defense plan of the district courts.”

The report recommended the establishment of a separate wheel for revocations since “judges report that this is a specialized type of practice and they rely on attorneys that are experts in alternatives to incarceration.”

Nowhere did the Task Force report suggest that Tarrant establish separate wheels for each individual court for which there is no public application and qualification screening process. As Clete McAlister told the Fort Worth Weekly: some judges have questioned whether they do have the authority to appoint counsel to indigent defendants facing revocations without the wheel.

The controversy concerning revocations can really be broken down into several issues: The Tarrant Plan clearly gives the judges the authority to make Ad Hoc appointments; but does this practice comply with Article 26.04 of the Code of Criminal Procedure? The statute requires “fair, neutral and non-discriminatory” appointments; is this practice consistent with that requirement? According to the Task Force report: no. Does this practice specify how attorneys are selected to represent indigent defendants facing revocation? Again, according to the Task Force report, the answer is no. Is this practice one that can be “readily understood” as the Task Force report recommends? Before November 15, it was not clear which courts used their own revocation wheels, and which courts did not. Another issue: even if this practice does not violate the FDA, is it a good practice? Is it a practice that builds public confidence and trust into the Tarrant FDA system? Also, does this practice lend itself to providing indigent defendants with attorneys who are independent, or beholden to the judge? As noted elsewhere, the first American Bar Association Principle of an Indigent Defense Delivery System provides that appointed counsel must be ‘independent.’ Also, is this practice consistent with all of the participants avoiding the appearance of impropriety? One of the purposes of the FDA was to eliminate patronage. Does this practice make judges more or less open to charges of patronage? And how is this practice from the perspective of the indigent defendants? One requirement of the FDA was county-wide uniformity in the defense of indigent defendants. Does this practice provide for more or less county-wide uniformity? As this controversy continues, these are all issues that must be addressed.

Also as noted in the Task Force report, judges stated that revocations involve “a specialized type of practice and they rely on attorneys that are experts in alternatives to incarceration.” It should be incumbent upon organizations such as TCCDLA and MABA to offer CLE on this subject, and thus bring all attorneys up to speed on this subject and address this concern of the judges.

Another area of concern appears to be court efficiency: it is arguable that the practice of having one attorney handle revocations in a given court is more efficient. If the felony judges do decide to move to one revocation wheel as recommended by the Task Force, they should consider borrowing a page from the misdemeanor judges: there, each attorney receives five appointments at one time under the misdemeanor wheel system. The felony judges could create one single county-wide felony revocation wheel which gives five (or whatever number is chosen) appointments at one time—all in the same court; this would continue to allow the judges to bring multiple probationers facing revocation to court at one time; however appointments would be (in the words of the Task Force report) “‘allocated among qualified attorneys in a manner that is fair, neutral and non-discriminatory’ as the statute requires.”

VII. Conclusion

The FDA is a huge step forward for Texas. After the enactment of the FDA, one of the judges of the Court of Criminal Appeals wrote that the new law “fills a dire need in this state for ensuring quality representation of indigent criminal defendants.”

Ex parte Graves, 70 S.W.3d 103, 122 (Tex. Crim. App. 2002). With the FDA, this state has clearly made strides toward filling this dire need. However, more must still be done to give Texas an indigent defense system of which it can be even more proud, a system which goes beyond the appearance of providing effective representation to the indigent, but does this in reality. The suggestions offered above will lead to a more fair system, one in which all of the constituents can have confidence. This includes the taxpaying public as well as those who serve in the criminal justice system, and the defendants too. Also, these ideas lay the groundwork for far fewer instances in the future when defendants will be heard to complain “My appointed lawyer didn’t do anything in my case except plead me out.” This will translate into far fewer writs, grievances and other complaints. When the FDA was written, it is not likely that the authors envisioned defendants being found indigent, counsel being appointed and pleas taken within minutes. “Eyeglasses in about an hour”—OK. “Pleas in about an hour” is not a practice that increases anyone’s confidence in the criminal justice system.

“Meet ‘em and plead ‘em” is a joke that cannot withstand the scrutiny of enterprising investigative reporters. The practices suggested in this paper will lead to increased odds of adequate defense and effective representation in all cases. And if the idea of the FDA is to truly eliminate patronage and provide adequate/effective/good defense to the indigent, all counties should heed the words of Justice Brandeis and apply sunlight to the entire system, by keeping public statistics on which courts are using the attorney appointment wheels and which courts fully utilize the services of professional screeners. This will also go a long way to having county-wide uniformity in indigency findings. These suggested practices allow judges to visibly demonstrate to the public that they take the FDA seriously and are making every effort to comply. This will also lead to less litigation.

In Speed of Trust: The One Thing That Changes Everything, author Stephen M. R. Covey tells the story of then-American Airlines CEO Donald Carty and how executive bonuses were kept secret from the union during labor negotiations in which the union agreed to major concessions in order to keep the airline out of bankruptcy. However, when these executive perks were disclosed during a required SEC filing, all trust of Carty was destroyed. His replacement, Gerald Arpey, took a different approach: “open rather than secretive, transparent rather than hidden.” Creating transparency “is about being open. It’s about being real and genuine and telling the truth in a way people can verify. It’s based on the principles of honesty, openness, integrity, and authenticity…The opposite of Create Transparency is to hide, cover, obscure, or make dark. It includes hoarding, withholding, having secrets, and failing to disclose. It includes hidden agendas, hidden meanings, hidden objectives. The antonym for transparent is opaque—meaning something that is impervious to light and through which images cannot be seen. The counterfeit of transparency is illusion. It’s pretending, ‘seeming’ rather than ‘being,’ making things appear different than they really are.” (Pages 153-54; emphasis in original).

When the federal government indicted various Dallas officials for public corruption, the October 2, 2007 Dallas Morning News quoted Mayor Tom Leppert stating that he will make good on his campaign promise to overhaul the antiquated campaign finance disclosure system and create an easily searchable campaign contribution and expenditure database. “It’s easier. It’s more transparent,” the mayor said.

This is exactly what Tarrant needs to do with its FDA system. Stats should be searchable and public. [The stats for a five month period in 2005 (listing wheel appointments vs. bench appointments) are attached to the Task Force report as ‘Appendix A.’ There is no reason these stats cannot be kept and published monthly on judicial dashboards.] This is in everyone’s best interest: the public, the defendants and all of those who work within the Tarrant County criminal justice system. No legitimate reason exists not to have a completely transparent FDA system.

Building search-ability and transparency into the indigent defense system will make litigation far less likely. Making the system fully transparent also avoids the possibility of enterprising reporters writing stories about what is wrong with the Tarrant FDA system, and instead allows them to focus on what is right.

Non-transparent government is a hot media topic. The November 14, 2007 Fort Worth Star-Telegram column by Reader Advocate David House quoted a Star-Telegram managing editor on this topic: "While paying homage to transparency, government officials have become increasingly savvy about ways to prevent unwanted scrutiny," she said. "They are less likely to deny the information outright -- they just find ways to discourage public information." The column concluded: “The preface to a report for the People for the American Way Foundation and OpenTheGovernment.org notes: ‘Citizens deprived of relevant information cannot participate in their government's decisions or hold their leaders accountable. Without this check, government officials are more likely to make decisions contrary to the public interest, abuse their authority, and engage in corrupt activities. In words that ring prophetic today, James Madison warned in 1822, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both.”’”

Since the inception of the FDA, Tarrant County has been a leader in Texas in the area of indigent defense using the assigned counsel model. After the initial missteps involving use of the municipal judges in the screening process, Tarrant has blazed the trail and been a model for other counties: Tarrant has extensively used Screeners; state funding has gone up, much of this with grant money from the Task Force to pioneer new ideas. And much is good about the Tarrant system. However, it is not fully transparent. But it should be. Once these improvements are made, Tarrant will have an FDA system of which all of its citizens can be proud. And no one could be heard to complain of patronage or discrimination or any other ills which the FDA was designed to cure.

If Texas had unlimited resources with which to defend the indigent, accuracy in indigency determination would be less important. But resources are limited. And indigent defense systems cannot afford the luxury of providing free representation to those who are not indigent.

Once all counties decide to use professional screeners and keep public statistics, most of the problems discussed here will be gone. And indigent defense systems in this state will all be able to withstand public scrutiny.

Setting Notice

REQUIRED COURT APPEARANCE: You must appear at the above time and date in the __________________on the ____ floor of the ____________ County Justice Center, _______________, ___________, Texas. Failure to appear will result in a warrant for your arrest.

EXCUSAL FROM COURT: If you hire an attorney at least 24 hours before the above Initial Appearance setting, the attorney can contact the court coordinator and your appearance may be excused. You may select and hire an attorney of your own choosing.

TOO POOR TO AFFORD ATTORNEY?: If you believe you are too poor to afford an attorney, you can ask the court to appoint an attorney for you. If you want an appointed attorney, you will be required to disclose information to the court about your financial resources. Unless you hire an attorney before the above date, you must bring to your Initial Appearance setting copies of your financial documents, including your two most recent paychecks or pay stubs and your W-2 forms. You will be required to complete a detailed financial questionnaire in court. Whether you qualify for a court appointed attorney is a decision the judge will make. In making this decision, the judge will consider your personal circumstances as well as the federal poverty guidelines.

RE-PAYMENT FOR APPOINTED ATTORNEY: If you receive an appointed attorney, the court may order you to repay the county for court-appointed attorney fees under such terms as the court may determine, based on your future financial status. If you receive a court-appointed attorney, you must cooperate with that attorney.

ROTATION SYSTEM: Attorney appointments are made on a rotating-wheel system. If you receive an appointed attorney, that attorney will be the next name up on the list for your category of offense.

ABA Ten Principles

The mission of the American Bar Association is "to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law." Its 400,000 members include judges, prosecutors and defense attorneys, and lawyers practicing civil law. Its Ten Principles of a Public Defense Delivery System have been used by numerous states, including Texas, Georgia and Montana, as a prominent guidepost for reform.

The Ten Principles of an Indigent Defense Delivery System provide standards that

*ensure fundamental fairness to defendants who cannot afford to hire an attorney,

*ensure that the indigent defense system is accountable to taxpayers and transparent to policy makers, and

*ensure public safety and improving public confidence in the criminal justice system.

The Ten Principles are as follows:

1. The public defense function, including the selection, funding and payment of defense counsel is independent from other agencies in the criminal justice system and free from undue political interference. The public defense system should be overseen by a nonpartisan board, not the judicial system, and public defenders should be hired on the basis of merit.

2. When the caseload is sufficiently high, the public defense delivery system utilizes both a public defender office and the active participation of the private bar. Since the responsibility to provide defense services rests with the state, there should be state funding and a statewide structure to ensure uniform quality statewide.

3. Clients are screened for eligibility and assigned a public defender as soon as possible after client's arrest, detention or request for a lawyer, usually within 24 hours.

4. Defense counsel must be allowed adequate time and a confidential meeting space to meet with the client.

5. Defense counsel's workload is limited to allow for ethical, quality representation. National standards should never be exceeded, and limited support staff or a defender's nonrepresentational duties may further reduce the caseload limits.

6. Defense counsel's ability, training and experience match the complexity of the case.

7. The same attorney continuously represents the client through all stages of the proceeding. Effective lawyering is impossible in an assembly line system of indigent defense.

8. There is parity between defense counsel and the prosecution with respect to resources. There should be parity of workload, salaries and other resources (such as benefits, technology, facilities, support staff, investigators and access to forensic services and experts). Further, defense counsel is included and treated as an equal partner in the criminal justice system.

9. Defense counsel is provided with and required to attend continuing legal education.

10. Defense counsel is supervised and systematically reviewed for quality and efficiency according to national and locally adoptedperformancestandards.

Mr. John Defendant By facsimile to: ___-___-_______

____________ Police Department

___________, Texas

Dear Mr. Defendant:

I have been advised by the courts that I have been appointed to represent you in a criminal law matter. I will make arrangements to visit with you as soon as my schedule permits. Until then, I will gather information concerning why you were arrested and the nature of any charges or potential charges against you as that information becomes available.

In the meantime, my advice to you is that you do not talk to anyone about the facts of your case. This includes cellmates, guards and relatives. Also, should you write any letters or send any documents to the Court, the prosecutor will get copies of those. Since you are probably not legally trained, you can damage your case. I am advising you not to send documents to the Court without reviewing them with me. Anything you tell me or my staff is confidential and protected by the attorney-client privilege. Also, sometimes your behavior in jail is monitored depending on the seriousness of your case. I am advising you to be on your best behavior.

If you make bond in your case, please contact my office immediately and provide your contact information. Should you hire an attorney, please advise my office so that we can provide that attorney with any information we may have about your case. If you are on bond, the Court requires as a condition of bond to make yourself available for office conferences and keep us informed of current addresses and telephone numbers. Failure to maintain contact with my office and keep scheduled appointments can result in your bond being forfeited and your return to jail.

Due to the fact that I am a trial attorney, I spend a lot of time in various courts in this and other counties and am often away from the office. Therefore, if you want to contact me before I can see you in jail, or any other time, please write me at the above address. Make sure you mark the envelope with the words ALEGAL MAIL.@

Sincerely,

___________________________________

RUMPOLE BAILEY

Tags:

TARRANT COUNTY COURT APPOINTED ATTORNEYS SYSTEM ANALYSIS 2007 PART II,Don Hase

Jan. 13th, 2008 at 4:06 PM

Previous Entry | Next Entry

TARRANT COUNTY COURT APPOINTED ATTORNEYS SYSTEM ANALYSIS 2007 PART II

Telephone numbers: Screeners should collect valid phone numbers from all on-bond defendants requesting counsel; as well as in-custody defendants (in the event they make bond). The OAA should provide these phone numbers to counsel at the time the appointment is made.
Appeal Courts: In order to equalize the workload between the 14 intermediate appellate courts, the Texas Legislature enacted a law under which the Texas Supreme Court sends a certain percentage of cases from certain high-volume Courts of Appeals to lower-volume Courts of Appeals. Thus, a case tried in Tarrant County can be sent to El Paso, Amarillo, Waco or elsewhere for appeal. If this is a case where defense appellate counsel is appointed (as is usually the case in appeals), additional expense is incurred when defense counsel believes this is a case where oral argument is appropriate. In appeals, most cases are decided on the briefs, but occasionally one side or the other will want to present oral argument. Instead of the appeal lawyers for both sides driving to the local courthouse, they must travel (and incur expenses) for oral argument. [Even though Section 73.003 of the Government Code provides that the transferee court will hear oral argument at location of the transferor court unless all parties agree otherwise, few litigants will want to make the court from which they are seeking a favorable result go to the effort of traveling to a distant location.] The Task Force should push for change in this area, both legislatively and non-legislatively. One possible short-term change would be instead of transferring cases randomly, to instead exempt all criminal cases: there are instances in the Rules of Appellate Procedure where criminal cases are treated differently than civil cases. For example, see Rule 48.4 which specifies how defendants are to receive copies of the opinion and judgment of the Court of Appeals.

V. Best Judicial Practices

In addition to full-information setting notices, professional screeners and good public stats as discussed above, judges should also separate the issue of indigency determination from resolving the merits of the case. This way, lawyers will have adequate time to meet with their clients, and not feel pressure (real or imagined) to ‘move’ (plead) the case the same day the appointment is made. One of the American Bar Association’s Ten Principles of a Public Defense Delivery System is that “defense counsel must be allowed adequate time and a confidential meeting space to meet with the client.” [See attachment.] Pleading a new client within minutes of appointment is not the way to do this. Alexander Hamilton said: “The first duty of society is justice.” And according to President Woodrow Wilson (Feb. 26, 1916): “Justice has nothing to do with expediency.”

The ABA also says that defense counsel must be “independent” from the judiciary. Although from time to time a judge may have good cause to remove counsel from a particular case, this should never be a first option. Good cause does not include counsel filing certain motions or asking for certain experts whom the judge thinks will only delay getting the case being plead. A lawyer not being available to ‘move’ the case the day the appointment is made is also not a good reason for removal; this practice definitely calls into question whether or not defense counsel is independent from the judiciary.

Judges should use the OAA wheel for all counsel appointments, except on rare occasion. Even though judges are sovereign, sovereignty has its limits under the FDA: “A court shall appoint an attorney from a public appointment list using a system of rotation, unless” one of three other statutorily-approved methods is used. Article 26.04(a), Texas Code of Criminal Procedure. (Emphasis added). The statute goes on to state that when a rotational system is used for appointments under a county’s FDA plan, “the court shall appoint attorneys from among the next five names on the appointment list in the order in which the attorneys’ names appear on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order.” (Emphasis added). According to the Texas Task Force on Indigent Defense, a core requirement of the FDA is to “institute a fair, neutral, and non-discriminatory attorney selection process.”

The wheel is designed to eliminate patronage. Canon 2 of the Texas Code of Judicial Conduct requires that judges avoid impropriety and “the appearance of impropriety” in all of the judge’s activities. Thus, no judge should show favoritism in appointment. Attorneys should also seek to avoid the appearance of impropriety.

Also, the wheel helps balance out the workload between attorneys. The ABA says that “Defense counsel’s workload is limited to allow for ethical, quality representation.”

When appointed counsel brings an ex parte motion for appointment of an expert (under seal) to the judge for consideration, the judge should not in any way divulge this fact to the prosecutor. For example, defense attorneys on occasion will discuss with their clients the possibility of taking a polygraph test. This is best done under the attorney-client privilege without the prosecution’s knowledge. When a polygraph test is done under the protection of the attorney-client privilege, many defendants have a higher comfort level about submitting to such an exam. Often, a polygraph test can be helpful in disposing of a case without a trial. But difficulties arise if the judge reveals this information to the prosecution.

VI. Best Defense Practices

When county procedures are in place as described above, the chances of a successful system from the criminal defense practitioner’s perspective increase greatly. Yet another constituent of the ‘public’ that must have confidence in the system is the criminal defense attorney. And by the nature of the beast, if proper indigency screening procedures are not in place, an attorney is from time to time placed in the ethical quandary of representing a defendant who the attorney knows is not truly indigent. And then the attorney must wrestle with Article 26.04(p) of the Code of Criminal Procedure which allows defense counsel to move for reconsideration of the indigency determination. But when proper screening is done, the lawyer can focus his/her attention to the primary task at hand: effectively representing the indigent defendant.

The practice of law is an art, not a science, and there are different opinions on what are in fact the best ways to represent defendants (indigent or not). What follows are the views of one criminal defense attorney.

When receiving a new court appointment, one of the first considerations is whether or not the defendant is in custody or on bond. If in custody, a consideration is whether bond is a possibility. In Tarrant County, the OAA notifies newly appointed counsel by fax and e-mail of the appointment. Many Tarrant County criminal defense lawyers have given standing instructions to their office staff to immediately fax a pre-written form letter to the jail housing the defendant. The letter contains basic information about representation and advice to talk to no one about the facts of the case until the defendant can speak to the attorney. It does not discuss the merits of the case. [See attached sample.] [All jails in Tarrant have agreed to take these faxes to prisoners in their cells.] The attorney should attempt to get as much discovery as possible from the prosecutor as soon as possible. The pleadings should also be examined soon. For on-bond defendants, the attorney’s staff should attempt to phone the defendant as soon as possible to schedule a meeting with the attorney. Some defendants will not want to meet with the attorney before court (either in person or by phone). But the attorney’s staff should attempt to set up a meeting. Otherwise, the first attorney-client meeting may be in the hallway at the courthouse.

Regardless of whether the new client is on bond or in custody, the first meeting with the new client is important. Many attorneys begin this first meeting by telling defendant what the prosecutor is offering. This is a mistake. The attorney should first explain to the client briefly how the system works and that the burden of proof is on the prosecution. Then, when discovery has been obtained, go over the offense reports with the new client, telling him or her that this is what the prosecution intends to use to obtain a conviction. The range of punishment should also be explained to the defendant. Obviously, the new client needs to be given an opportunity to tell his/her view of the facts, but this is usually best done after they have heard the government’s perspective. At this point, some clients will tell counsel they are guilty and want to see about cutting a deal. Others will tell counsel they are innocent and do not want a deal. If counsel has received an offer from the prosecution, it must be communicated to the client so he/she can accept or refuse. This decision is solely that of the client. Counsel should document his/her file when a defendant rejects an offer. [See attached suggested form.]

Shortly after meeting the client, there is usually a first court appearance. In-custody defendants are typically in crowded holdover cells with many other defendants. It is best not to have substantive attorney-client conferences in these settings. It is best to interview the new client before the court date in the jail, where the defendant can talk freely to counsel. New offers can be communicated to the client in the (crowded) holdover, but the client should be cautioned against substantive conversation in this setting. There is no privilege if someone else (like a snitch) is listening.

For on-bond defendants, it is best to have substantive conversations in the attorney’s office before the court date. This includes going over the offense report. Meeting the client in court and trying to quickly plead them out is not the way to provide good representation. In fact, most clients who are allowed the opportunity to meet with the lawyer before court in the office do not feel like the indigent defense system is running a railroad. They prefer to be treated like human beings, not sausage.

After meeting with the client, the attorney must weigh other issues: Motions? Investigator or other experts to be appointed? Further negotiations? Trial? [Under Ex parte Briggs, 187 S.W.3d 458, 468 (Tex. Crim. App. 2005), even retained counsel may have a duty to ask the court for funds for expert assistance.] For all cases not resolved by early plea negotiations, counsel should begin thinking in terms of going to trial. Does the client have any witnesses that need to be located and possibly subpoenaed? Counsel should keep an accurate record of the time spent working on the case.

A special word must be said about newly appointed appeal clients. They have seen the system up close and personal. They have been found guilty, and are usually not happy. They often have complaints about their trial counsel. The key for the newly appointed appeal counsel is to go see the new client as soon as possible. Hear what they have to say about what they experienced. Explain to them how the appeal procedure works, including PDR. Explain to sentenced felons that they will likely soon be shipped to TDC, and your further communication will be in writing. Invite them to send you a long letter explaining their concerns. Tell them you will pay particular attention to their concerns when you review the record when it is prepared. The key is to go meet them as soon as possible.

VII. HB 1178

HB 1178 promulgates new procedures that judges and prosecutors must follow when obtaining waivers of the right to counsel from defendants charged with crimes above Class C misdemeanors. Any waiver obtained after September 1, 2007 is presumed invalid if taken in violation of this bill. Any defendant desiring to waive the right to counsel must be informed of the nature of the charges and the range of possible punishment. The court must obtain a signed, written waiver of the right to counsel that substantially complies with the language contained in Article 1.051(g) of the Code of Criminal Procedure: I have been advised today by the “Court of my right to representation by counsel in the case pending against me. I have been further advised that if I am unable to afford counsel, one will be appointed for me free of charge. Understanding my right to have counsel appointed for me free of charge if I am not financially able to employ counsel, I wish to waive that right and request the court to proceed with my case without an attorney being appointed for me. I hereby waive my right to counsel.”

Under HB 1178, the prosecutor “may not initiate or encourage an attempt to obtain from a defendant who is not represented by counsel a waiver of the right to counsel or communicate with a defendant who has requested the appointment of counsel, unless the court…has denied the request and, subsequent to the denial, the defendant has been given a reasonable opportunity to retain and has failed to retain private counsel; or waives or has waived the opportunity to retain and has failed to retain private counsel.” Also, “the court may not direct or encourage the defendant to communicate with the attorney representing the state until the court advises the defendant of the right to counsel and the procedure for requesting appointed counsel and the defendant has been given a reasonable opportunity to request appointed counsel.”

For an excellent article on HB 1178, see http://www.texasfairdefenseproject.org/pdf/resource_for_implementation.pdf

To file a complaint related to the indigent defense system, go to www.texasfairdefenseproject.org

or call 866-207-6532.

VIII. Revocations

As noted above, on March 10, 2006 the Texas Task Force on Indigent Defense published its “Review of Tarrant County Indigent Defense System” (published at www.courts.state.tx.us/tfid/Resources.asp

). The report noted that the indigent defense plan adopted by the district courts of Tarrant County “provides an exception to this system related to motions to revoke as follows:

‘5. Alternative Program

As an alternative program to the wheel system for appointing counsel for indigent defendants, the [Felony] Judge…may appoint a specifically named attorney from the approved list of attorneys to those indigent defendants who are charged in a Motion to Revoke or Adjudicate Community Supervision in that court.”

The report continues: “The district courts also carve out in their indigent defense plan an exception to the standard wheel system for motions to revoke or adjudicate community supervision. The plan authorizes each judge to designate specific attorneys from the main appointment lists to handle revocations. The judges report that this is a specialized type of practice and they rely on attorneys that are experts in alternatives to incarceration. This system as applied appears to violate the provisions of Art. 26.04, Code of Criminal Procedure, because it does not specify how the attorneys are selected for such appointments. Because the system of selection varies by judge, this alternative system does not apply to all attorney appointments as required. The lack of definition also means that there is no way to ‘ensure that appointments are allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory’ as the statute requires. The current practice of judges directly appointing attorneys from the bench without following the rotation system appears to contradict the provisions of the indigent defense plan of the district courts. The plan envisions all appointments, except those related to revocations, going through the wheel system maintained by the OAA.” (Page 11; emphasis added).

In its Recommendations section, the Task Force report states: “As to the revocation appointment system in use by the district courts, it is recommended that the courts consider establishing a new wheel made of attorneys specifically qualified to handle revocations. This way the judges would collectively and by majority vote approve the list of attorneys for these types of cases. It is also recommended that the method of appointing attorneys from this list be elaborated so that the appointment system can be readily understood. Of course, any type of system needs to allocate appointments in a method that is fair, neutral, and nondiscriminatory. These changes would require an amendment to the existing plan. A limited scale public defender office might also handle revocations. Revocations could be one part of an overall caseload or a specialized program could be developed for these types of cases. The latter would probably work best if revocation proceedings were centralized to a limited number of courts.” (Page 13; emphasis added).

The Tarrant County District Courts Felony Court-Appointment Plan (effective May 1, 2006) states that “the district judges hearing criminal cases in Tarrant County, Texas, are committed to timely providing quality legal representation to indigent criminal defendants, to guaranteeing fair and neutral procedures for attorney selection, and to establishing minimum competency standards for court-appointed attorneys; while at the same time ensuring that public funds are wisely spent.” The plan then says that the district judges seek to comply with both the Texas Code of Criminal Procedure and the Texas Code of Judicial Conduct. The Plan also states: “A qualified attorney will be appointed to each indigent defendant based on a rotating felony appointment wheel consisting of the names of qualified attorneys approved by a majority of the district judges hearing criminal cases…Each qualified attorney will be appointed to represent one indigent defendant per rotation through the felony appointment wheel as maintained by the OAA.”

Under “Ad Hoc Distribution of Appointments in the Trial Court,” the Plan states: “The judge of a district court hearing criminal cases or the judge’s designee may deviate from the rotation system and appoint an attorney in that court who is specifically qualified under the Plan on an ad hoc basis to represent indigent defendants upon a finding of good cause to deviate from the rotation system. The judge of a district court hearing criminal cases or the judge’s designee may deviate from the rotation system and appoint an attorney in that court who is specifically qualified under the Plan on an ad hoc basis to represent indigent defendants who are charged in a motion to revoke oradjudicate community supervision in that court.” (Emphasis added.)

Applying the FDA to felony revocations is a controversial issue. The March 21, 2007 Fort Worth Weekly quoted Tarrant County Criminal Courts Administrator Clete McAlister saying that the felony judges ignore the wheel about 40 percent of the time, although they appear ready to more closely follow the spirit of the FDA [than the misdemeanor judges]: “I think all of them will be changing that practice if they haven’t already. They believed they had latitude to appoint attorneys for probation revocations that they had a lot of confidence in, and they thought they had that authority, and now they’re questioning whether they do. Some of them have already stopped that practice and are appointing directly from the wheel now.” [Emphasis added; see attached article.]

The Tarrant wheel application process for attorneys who desire appointments is in the Plan. The Tarrant County Application for Felony Court Appointments allows attorneys to apply for appointments on four different “wheels”—(1) State jail felonies and extraditions; (2) Second and third degree felony, and petition to revoke or adjudicate community supervision; (3) First degree felony and non-death capital murder; and (4) Appeal and post judgment writ. [See attached first page of application.] The application then goes on to ask 17 questions which each applicant must answer. These questions all relate to the level of skill and training the applicant has, as well as any sanctions against the applicant and conflicts of interest. Each applicant must attach CLE reporting forms as well as other documents, such as supporting evidence of experience. The applicant must then sign an oath stating all of the information provided is true and that the applicant does in fact meet all of the qualifications under the Tarrant County District Courts Felony Court Appointment Plan. The applicant also states that s/he understands that s/he must be approved by a majority of the district judges hearing criminal cases and that s/he may be removed for failure to meet the qualifications. This application form, effective May 1, 2006, was signed by all nine felony judges in office at that time.

This application process comports with the letter and spirit of the FDA. It gives assurance to the public that attorneys receiving court appointments in Tarrant County have attained a level of competence and are able to adequately represent indigent defendants. This allows the public to have confidence in the system.

Additionally, attorneys can apply for the capital/death penalty wheel and the misdemeanor wheel. Those application processes are similar to the felony process described above.

Thus, the Tarrant County application process allows for attorneys to apply for a total of six different wheels.

Attorneys practicing criminal defense law in Tarrant County participate in the Electronic Case Filing System (ECFS). Prior to November 15, 2007, the ECFS listed the wheels on the left below from which attorneys possibly could have received court appointments. As of November 15, the ECFS listed the wheels in the center. As of November 16, the ECFS listed the wheels on the right, below.

Tags:

TARRANT COUNTY COURT APPOINTED ATTORNEYS SYSTEM ANALYSIS 2007 PART I, Don Hase

Jan. 13th, 2008 at 4:02 PM

Previous Entry | Next Entry

TARRANT COUNTY COURT APPOINTED ATTORNEYS SYSTEM ANALYSIS 2007 PART I

BEST INDIGENT DEFENSE PRACTICES

Originally presented to the

Texas Task Force on Indigent Defense

2007 Indigent Defense Workshop

October 18, 2007

Austin, Texas

Updated for presentation to the

Mexican American Bar Association

November 29, 2007

Fort Worth, Texas

By

DON HASE

Attorney at Law

4025 Woodland Park Blvd., Suite 100

Arlington, Texas76013

817-860-5000

www.ballhase.com

don@ballhase.com

J.D., TexasTechUniversitySchool of Law, 1981

Assistant District Attorney, Tarrant County, 1981-87

Partner: Ball, Hase & Wisch, 1987-1994

Partner: Ball & Hase, 1995-present

Board Certified Criminal Law, Texas Board of Legal Specialization, 1986

Past President: TarrantCounty Criminal Defense Lawyers Association

Table of Contents

BEST INDIGENT DEFENSE PRACTICES: Systems Which Can

Withstand Public Scrutiny…………………………………………………. 3

A History of the FDA in Tarrant County…………………………………….. 3

Toward a Permanent Solution………………………………………………… 7

Best System Practices………………………………………………………… 8

Best Judicial Practices……………………………………………………… 10

Best Defense Practices……………………………………………………… 11

HB 1178………………………………………………………………………. 13

Revocations………………………………………………………………… 14

Conclusion…………………………………………………………………….. 18

Statewide Setting Notice………………………………………………………. 21

American Bar Association 10 Principles…………………………………….. 22

Letter to Inmate……………………………………………………………….. 23

Plea Acceptance/Rejection Form…………………………………………….. 24

Fort Worth Weekly article: “Justice’s Low Tire”………….………………… 25

Tarrant Felony Appointment Application (page 1)………………………….. 29

Best Indigent Defense Environment for Effective Representation………….. 30

November 17, 2007

BEST INDIGENT DEFENSE PRACTICES:

Systems Which Can Withstand Public Scrutiny

“Reason and reflection require us to recognize that in our adversary system of criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

---U.S. Supreme Court Justice Hugo Black

Gideon v. Wainwright, 372 U.S. 335, 344 (1963)

I. Introduction

The original purposes of the Texas Fair Defense Act included ensuring the prompt appointment of qualified counsel for indigent defendants, and the elimination of patronage in the appointment process. As Dr. Phil might ask: how is that working out?

The FDA has many lofty goals, but it leaves much to individual counties to establish their own indigent defense plans, within certain parameters.

Are there some practices that work best? Are there guardrails (checks and balances) that counties should build into their systems to ensure public confidence—safeguards that can make each county’s system able to withstand scrutiny of enterprising reporters and others looking for abuses in and of the system? What can the Texas Task Force on Indigent Defense do to help tweak existing systems to achieve these goals?

To answer these questions, attention is first turned to the indigent defense system in one county: Tarrant.

II. A History of the FDA in Tarrant County

Any discussion of the history of the Fair Defense Act in Tarrant County must begin with the prevalent attitude at the time of its inception: “We don’t need SB7 here.” Most involved in the various aspects of the Tarrant County Criminal Justice system before the FDA did not think it was needed. There is an element of truth (but not total truth) to this sentiment. For in-custody defendants, things worked fairly well pre-FDA: A court coordinator would call a defense attorney a few days prior to a “Jail Run.” The attorney would appear and meet the defendants in the holdover and review the prosecutor’s file. [The Tarrant County DA’s Office has had an open file policy for approximately 30 years.] The prosecutor and defense attorney would discuss the case and often work out a deal. On extremely serious cases, not so much. The defense attorney would discuss the case with the new client, and where deals were struck, pleas were soon taken. The defense attorney could count on getting approximately 3-7 new clients. It was worthwhile for the attorney to spend his/her morning at the jail run. Cases that were not settled at the jail run were either settled eventually, or went to trial.

On-bond defendants claiming indigency were different. The prevailing attitude was “If you’re out breathing free air, you must hire your own attorney.” Beyond that, seldom was a real inquiry made into that defendant’s true financial situation.

To a degree (but not totally), the Tarrant attitude toward the FDA has improved over the years, but it is still called (often with a hint of derision) “SB7.”

All of that said, Tarrant County must be given credit for being one of the first counties in the state to put together its “SB7” plan. However, being one of the first came with a price. Tarrant made what may be the biggest blunder in FDA history at the outset of enacting its plan: Rather than hire additional county magistrates to take on the now legislatively mandated task of determining indigency (as other counties did), Tarrant tried to do it on the cheap, by delegating this key task to the various municipal judges. The assumption was that the municipal judges would do this at the time they arraigned the defendants and set bonds and that they would take this task seriously. But Tarrant County has over 40 local jurisdictions and JP precincts. Attitudes varied. Some took the screening function seriously and tried to make accurate determinations. Others decided that was too much work, and the easier thing to do was to give ‘free’ lawyers to anyone who asked; besides, this was county money, not city money. One thing was constant however: the position of municipal judge was not designed for this task. Municipal judges presided over traffic trials, issued warrants, set bonds and arraigned prisoners. Screening for indigency is not what they signed up for. Added to this was a long-standing dispute between the County and its largest city over the housing of prisoners, which resulted in Fort Worth prisoners having their bonds set and being arraigned very quickly downtown, so that the prisoners could all be transported quickly to the Mansfield jail near the county line, to be housed until bond is posted or the case is filed by the DA’s Office, at which time the prisoners would be brought back downtown to the County Jail. For the convenience of those running the ‘system,’ defendants were not given the chance to post bond before being asked about indigency; rather indigency and bond were handled at the same time (one-stop shopping): the exact opposite of the practice in many other counties.

After a couple of years of this, the County finally hired an additional magistrate and approximately five Financial Information Officers (“Screeners”). Now, for the first time, Tarrant had in its employ dedicated professionals whose sole task was to meet with defendants claiming indigency, and compile information to give to a county magistrate so that an accurate assessment could be made. [The new magistrate met with some misdemeanor on-bond defendants who wanted counsel appointed; in felony courts, county magistrates had already been meeting with on-bond accused felons who wanted appointed counsel; however until recently, the felony magistrates did not have the assistance of a financial screener.] Also, it was now easier for defendants to post bond before being asked about indigency.

While change has come in the area of indigency determination since the inception of the FDA in Tarrant, the county still has in place its system of ‘wheels’ whereby lawyers must qualify for various levels of offenses for which they desire to receive court-appointments. The ‘wheel’ is designed to fairly distribute appointments and avoid issues of patronage. It is administered by the Office of the Attorney Appointments. Under the wheel, when a need for an attorney in a given category of offense arises, the next attorney listed on the wheel should receive the appointment. The current problem is (as will be discussed more fully below) that not all judges fully utilize the wheel.

The assumption was that when the indigency determination task was taken away from the municipal judges and placed in the hands of county judges that this would result in a more steward-like approach to the determination of indigency. For in-custody defendants, this did not matter. It was a rare defendant who was in custody and not indigent. However, for on-bond defendants, things were different: especially in the misdemeanor courts where ‘free world’ lawyers advertised extremely low attorney fees. For many years, elected judges have long looked at their own monthly statistics, as well as those of their fellow judges. It has usually been competitive among the judges to see which courts are disposing of the most cases each month. And it is this dynamic that met with the new-found concept of many on-bond defendants appearing for their first court dates without attorneys, and wanting appointed counsel. Often, it was bail bondsmen who had told the defendants to show up for court and ask for a ‘free’ lawyer (after first paying the bond fee). What was happening often (in some courts more than others) was that there was a temptation on the part of a judge to go ahead and appoint an attorney on that first court date, with the expectation being that the case would be plead (or ‘moved’) that day (often without a financial questionnaire). Appointments were not made via the OAA wheel rotation system, but by judges appointing whoever they chose. These appointed attorneys were often friends of the judges. Thus in an effort to rack up quick dispositions, some judges were foregoing accurate indigency determinations in order to get fast stats. Some judges said they did this because of “SB7;” in reality, this practice was an abuse of the FDA: defendants were meeting their new free attorneys and pleading guilty within minutes. Many of these defendants felt like the raw ingredients on a conveyer belt at a sausage factory; yet the name of a licensed attorney appeared on the judgment, and so Tarrant had the appearance of an effective indigent defense system. In reality however, many of these defendants were not truly indigent, and money was being diverted away from the truly indigent defendants. And the court papers never reflected that many defendants plead guilty within minutes of meeting appointed counsel. Often it appeared that elected judges viewed the jury box full of defendants who wanted “free” lawyers as a pool from which they could give work to their favorite members of the bar. Often, part of the ‘culture’ of such a day in court including the judge’s favorite defense attorney binging doughnuts and other snacks for the prosecutors and court staff. And for the attorney pleading numerous cases within minutes of meeting the clients, it was pure gravy.

In addition to this situation, some judges (particularly in felony courts) had gotten away from using the OAA wheel for many in-custody defendants facing probation revocations. Once again, some judges had favorite lawyers: lawyers who they believed (and experience had shown) could ‘move’ these cases quickly. Additionally, the Auditor’s page on the county website listed real check amounts paid to attorneys on these appointments. In early 2007, numbers were added that revealed that a small number of lawyers were receiving well over $100,000 in a year on court appointments; for one lawyer, the total was approximately $300,000. Although one of the main goals of the FDA had been to eliminate patronage, in Tarrant in the FDA era, patronage existed at a level never before imagined. The lawyers had effectively been divided into the ‘haves’ and the ‘have-nots.’

Then came March 8, 2007: an extremely significant day in Tarrant FDA history: that is the day that attorney Travis Young addressed the Tarrant County Criminal Defense Lawyers Association at its monthly meeting. The audience included several of Tarrant’s 19 elected criminal judges, as well as the media.[1] It was then that several of the judges ‘found religion.’ Prior to that date, four of the 10 misdemeanor judges had been sending all of their on-bond defendants who desired court appointed counsel to the County’s new magistrate (Matt King) to be screened by a Financial Information Officer and the judge. When a defendant is indigent, Judge King will so find, and the OAA wheel will appoint counsel. When Judge King reviews the defendant’s information and determines a particular defendant is not indigent, he will usually tell that defendant to hire counsel (although Judge King has the authority to authorize an appointment if he believes justice requires that action in a given case). After March 8, the other six misdemeanor judges began utilizing the services of Judge King and the Screeners, to varying degrees. However, there has been no system in place to require all of the judges to use Judge King and the Screeners: each elected judge is sovereign, and can do what s/he wants. And since March, some of the judges have gone back to their old practices, and are either no longer using Judge King and the Screeners, or are doing so to a much lesser degree. And in some courts, things are back to the way they were before March: appointments for all defendants who ask, the same predictable defense attorneys appearing in court, ‘movement’ of cases within minutes of appointment: in many courts, the Patronage Sausage Factory is back in business.

Ironically enough, Travis Young spoke almost a year to the day after the Texas Task Force on Indigent Defense had issued its March 10, 2006 “Review of Tarrant County Indigent Defense System” (published at www.courts.state.tx.us/tfid/Resources.asp

). The report had been prepared by Special Counsel Wesley Shackelford after his on-site visit to Fort Worth. To prepare the report, Mr. Shackelford reviewed many records and interviewed many of the participants in the Tarrant County Criminal Justice System. He also observed many court proceedings. The primary recommendation had been further centralization of the indigency screening process, which could be accomplished through an expansion of Judge King’s role. This “would allow for the most consistent and thorough screening of defendants.” This result “would be to minimize use of courts’ valuable time while providing a meaningful review of the indigency status of defendants…It would also provide more countywide uniformity, which is a key principle of the FDA. This process would also enhance public trust and confidence by assuring that only the indigent receive appointed counsel, whereas those that can afford it will be responsible for hiring his or her own counsel.” (Page 8). The report went on to note that in August 2005, the OAA had begun compiling a monthly report that showed which courts were using the wheel, and which courts were not. These OAA numbers revealed that in misdemeanor courts, a majority of the appointments were made by the courts, not the OAA wheel. The report noted that the “only significant use” of the wheel appeared to be when it did not seem likely that the case could be disposed of that day. (Page 10). The report also addressed the issue of felony judges getting away from the use of the OAA wheel in probation revocations. The report noted that “there is no way to ‘ensure that appointments are allocated among qualified attorneys in a manner that is fair, neutral and nondiscriminatory’ as the statute requires. The current practice of judges directly appointing attorneys from the bench without following the rotation system appears to contradict the provisions of the indigent defense plan of the district courts. The plan envisions all appointments, except those related to revocations, going through the wheel.” (Page 11). The report went on to recommend that the courts establish a separate wheel for revocations to address this issue (Page 13), since “the judges report that this is a specialized type of practice and they rely on attorneys that are experts in alternatives to incarceration.” (Page 11). The report stated that “the rationale for making bench appointments of immediately available attorneys is that it fosters immediate attorney client contact. It is further posited that this will in turn lead to faster dispositions and ultimately reduced jail populations since cases will be settled more quickly.” (Page 12). [However, note that when the defendant seeking appointed counsel is on bond, ‘jail population’ is not affected at all.] [Felony revocations are discussed more fully below.]

This report painted an accurate picture of Tarrant County’s system. Its recommendations were on target. Yet a year later, problems still existed. One recommendation was not in this report, but should have been: as discussed below, when counties keep and publish monthly stats on which courts use professional screeners and the OAA wheel, most of these problems will be removed. The system will then truly be transparent, and the public will know that everything is out in the open.

III. Toward A Permanent Solution

From its beginnings in Tarrant, the FDA has had high and low points on its journey.[2] After March, Tarrant saw how good things can/could be. The key is to establish a means of insuring that all of the judges fully utilize the services of the magistrates and the screeners. This way, the public can have full confidence in its Indigent Defense System.[3]

Since it is statistics that ‘drive’ many of the judges’ trains (i.e. their desires to have good disposition stats), stats must be put in place as a form of check and balance. All counties should keep statistics on which courts are utilizing screening procedures, and which ones are not, as well as which courts are using the OAAC wheel. The stats should be easily comprehendible by the public, so that if a judge slips back into the old ways of patronage and no professional indigency screening, a future election opponent can use this information. There is always going to be a human element in an indigent defense system. Problems arise however, when, for parts of the system, there is in fact no system: some Tarrant judges appointing counsel to any who ask. This, coupled with the temptation to ‘move’ the case today, gives the appearance of things done properly, but it is really cheating.[4]

Tarrant County’s history provides an example of abuses of the FDA on one end of the pendulum: giving attorneys out with no showing of true indigency. On the other end of the pendulum are stories of counties which are reluctant to ever appoint counsel for indigents. Stories still circulate in this FDA era about some places where those in power believe that if a defendant can make bail, s/he is not entitled to appointed counsel. One option regarding judges who refuse to follow the FDA is to seek help from the State Commission on Judicial Conduct. But a less drastic (and likely more effective) tool is to keep public stats as suggested above: this is a way to satisfy constituents on both ends of the pendulum. Good stats will reveal to all that the FDA is being followed as it was intended; this should result in more state-wide compliance. Sending all defendants requesting appointed counsel to Financial Information Officers for professional screening should also greatly reduce litigation associated with wrongful denial of appointed counsel, and not make it necessary for anyone to test the limits of judicial immunity.

Another aspect of the FDA in Tarrant that appears to work well is giving defendants a true picture of how things work in the notices that are sent to defendants advising them of their court dates. An example of an effective setting notice is attached. It dangles a carrot of allowing a defendant to have a court appearance waived, if that defendant hires counsel.[5] It also tells the defendant how the system really works, removing the mystery.

When counties fully utilize good public Statistics, professional Screeners and full-information Setting notices, they are well on their way to having model Indigent Defense Systems.

IV. Best System Practices

Setting Notices: Give on-bond defendants full disclosure about how the system works. As the attached sample shows, that includes the waiving of having to make a first court appearance for those who hire counsel; and a brief overview of how the appointed counsel system works for those who believe they are too poor to afford to hire an attorney. Not all defendants will bother to read the entire setting notice, but many will. After all, they are in the comfort of their own homes. The various topics on the setting notice are highlighted. At the Initial Appearance setting, the only issue to consider is that of representation. There should be no prosecutors or defense attorneys present. There should be no way to ‘move’ the case that day. Defense attorneys will not receive credit for an appearance in court. This way, discovery can be gathered by newly appointed counsel, and the defendants will not be feeling like they must plead within minutes of meeting counsel. An indigent defense system works best when the issue of representation is resolved separately from the merits of the case. This will also lead to full use of the wheel/rotation system, and minimize patronage.

Screeners: All on-bond defendants requesting appointed counsel should be interviewed by a professional financial information officer. Defendants should be required to bring their financial documentation for review by the screener. This information should then be given to the magistrate who makes the decision about whether a defendant is indigent or not. [It is more cost-effective for counties to invest in fewer high-paid magistrates and more (relatively) low-paid screeners.]

Stats: Having all on-bond defendants seen by county screeners is the best way to assure the public that all indigent defendants are receiving appointed counsel, yet non-indigent defendants are not receiving appointed counsel. However, since all elected judges are sovereign, they can choose to ignore this practice. [Although as noted below, Article 26.04(a) of the Code of Criminal Procedure places some limits on this sovereignty.] The best way for counties to ensure that the maximum number of judges sends all on-bond defendants for screening is to keep public statistics on which courts do and which courts do not follow this practice. Stats should also be kept on which courts do and do not use the OAA wheel. They should be published monthly along with the disposition stats—always broken down by court. When counties keep these statistics, most elected judges will choose to adopt the practice of having screeners review the financial situations of all on-bond defendants who want appointed counsel, and making appointments via the OAA wheel.

Bail Bonds: Often, people who are not indigent become indigent after they pay a bond fee to a bond professional. Many counties have pre-trial release programs which charge lower fees to defendants desiring to make bond, thus leaving more money available to hire counsel. Even though this is a politically sensitive area, and many bond professionals are politically active, counties should seek to allow other forms of release (especially for low-risk defendants) wherever possible. In addition to pre-trial release, cash alternatives should be considered. Also, counties should be allowed to have other magistrates re-review bond amounts, with an eye toward lowering bond amounts that were originally set too high.

Verification: Counties should have the ability to verify financial information given by defendants. However, it is not cost-effective for this practice to occur in each case. Counties should establish criteria under which verification is called for in certain cases.

Integrated System: Systems should be in place to insure that where an in-custody defendant has been screened and determined by a magistrate not to be indigent, that this defendant does not languish in jail without an opportunity for a Pre-Trial Release bond, or a subsequent review of indigency. While not all defendants who remain in custody are indigent, many are. Also, often indigent defendants will have a felony pending in the District Court and a misdemeanor pending in the County Court. It is common for defense counsel not to want to resolve the misdemeanor until the felony is resolved. Often, the misdemeanor is plead in bar at the time the felony is disposed. The misdemeanor coordinator should not continually set court dates on defendants who have felonies pending; if they do so, counsel is going to accumulate several unnecessary, unproductive appearances in misdemeanor court.

[1] See attached March 21, 2007 Fort Worth Weekly article (“Justice’s Low Tire”).

[2] On its FDA journey, the Tarrant sense of frustration has lead to a multitude of ideas, some good, some not. One area where Tarrant appears to leave no stone unturned is in the area of requiring indigent defendants to make re-imbursement payments to the County for anticipated counsel fees. In some courts, failure to make such payments results in contempt and jail confinement.

[3] A great article on the history of indigent defense in Texas is “In Pursuit of Independent, Qualified, and Effective Counsel: The Past and Future of Indigent Criminal Defense in Texas,” 42 S. Tex. L. Rev. 595 (Summer, 2001), by Catherine Greene Burnett, Michael K. Moore and Allan K. Butcher. The authors noted that “The process of determining whether the defendant is indigent is arguably one of the most important decisions the courts will make in resolving the issue of representation.” Id. at 616. They wrote that “Consistent standards for determining whether or not a defendant is indigent should be adopted.” They suggested an examination of tax returns and food stamp qualification. Id. at 653. They also suggested examination of W-2 forms. Consistent results across various government entities will enhance public confidence in the system. Id. at 680. But there are different components to ‘public’ in this context. Clearly the taxpayers must know that the truly indigent are receiving appointed counsel, and non-indigents are not. But another component of the ‘public’ must also have confidence: indigent defendants must experience that they are not merely raw ingredients in a sausage factory who plead guilty within minutes of meeting appointed counsel.

[4] For a great study on how the human heart works when given the opportunity to cheat in various settings, see Freakonomics by Steven D. Levitt and Stephen J. Dubner. There, on page 67, Supreme Court Justice Brandeis is quoted as saying “Sunlight is said to be the best of disinfectants;” hence the recommendation that keeping good public stats is a great check and balance for all indigent defense systems.

[5] Any defendant who hires counsel usually removes him/herself from being an FDA issue.

Tags:

What EVERY ETHICAL ATTORNEY NEEDS To Know About DWI LAW, PART II.D.S. Hunter update by CHRIS HOOVER

Jan. 13th, 2008 at 2:58 PM

PART II
WHAT EVERY ETHICAL ATTORNEY NEEDS TO KNOW ABOUT DWI LAW
Fort Bend Bar Association
August 25, 2005
Richmond, Texas
Presented by
DAVID S. HUNTER, J.D., M.S., M.B.A., B.S.
Judge, County Court at Law #1
Fort Bend County, Texas
1600 Highway Six, Suite 450
Sugar Land, Texas 77478
(281) 277-1500
davidhunter@westfirm.com
Updated to included changes made by the 79
th Texas Legislature by CHARLES STANFIELD
Based on a paper written and originally presented at the 29
th Annual Advanced Criminal Law Course under the title "Ten DWI Statutes Everyone Should Know" by CHRISTOPHER N. HOOVER
520 Central Parkway East, Suite 112
Plano, Texas 75074-5526

(888) 252-4394www.dwitexas.com

WHAT EVERY ETHICAL ATTORNEY
NEEDS TO KNOW ABOUT DWI LAW
Based on a paper written and originally presented at the 29
th Annual Advanced Criminal Law Course under the title "Ten DWI Statutes Everyone Should Know" by CHRISTOPHER N. HOOVER
Updated to include changes made b the 79
th Texas Legislature by CHARLES STANFIELD
Presented by
DAVID S. HUNTER
6. JURY MAY RECOMMEND DRIVER’S LICENSE NOT BE SUSPENDED
Code of Criminal Procedure Article 42.12 Section 13 (g):
(g)
This provision is virtually unknown by Prosecutors, Judges and Defense Attorneys alike. It is the only provision under any Texas law, to my knowledge, that grants discretion of whether to suspend a DWI 1st offender’s license to anyone.
Because license suspension is an important concern of most DWI clients, it is a good one to know. Judges and Prosecutors should also be aware of this provision when drafting their punishment jury charge in DWI cases.
Note that this provision applies to persons convicted of DWI, Intoxication Assault and Intoxication Manslaughter. It does not apply to persons punished with one or more prior DWI convictions or one prior Intoxication Manslaughter offense. The five year rule §49.09(g) is also inapplicable.
A jury that recommends community supervision for a person convicted of an offense under Sections 49.04 - 49.08, Penal Code, may recommend that any driver's license issued to the Defendant under Chapter 521, Transportation Code, not be suspended. This subsection does not apply to a person punished under Section 49.09(a) or (b), Penal Code, and subject to Section 49.09(g) of that code.
What Every Ethical Attorney Needs To Know About DWI Law Page 14
7. DRIVERS LICENSE SUSPENSION PERIODS
Code of Criminal Procedure Article 42.12, Section 13 (k):
Notwithstanding Sections 521.344(d)-(i), Transportation Code, if the Judge, under Subsection (h) or (j) of this section, permits or requires a Defendant punished under Section 49.09, Penal Code, to attend an educational program as a condition of community supervision, or waives the required attendance for such a program, and the Defendant has
(1) not less than 90 days or more than 365 days, if the Defendant is convicted under Sections 49.04-49.08, Penal Code;
(2) not less than 180 days or more than two years , if the Defendant is punished under Section 49.09(a) or (b), Penal Code; or
(3) not less than one year or more than two years , if the person is convicted of a second or subsequent offense under Sections 49.04-49.08, Penal Code, committed within five years of the date on which the most recent preceding offense was committed.
I find that again all parties involved are not familiar with this section of 42.12. License suspensions may not be a deterrent to repeat offenders, but they are certainly important to anyone arrested and convicted of DWI.
It seems to me that most Courts and Prosecutor offices operate more out of habit than knowledge when license suspensions are involved. Judges have much more discretion in this area than they realize. They too should consider their options when sentencing a DWI Defendant.
The minimum and maximum periods for license suspension for DWI convictions are:
1. 90 to 365 days for a first time conviction for DWI, Intoxication Assault and Intoxication Manslaughter;
2. 180 to 2 years with one or more prior convictions; and
3. 1 year to 2 years with a prior conviction where the dates of offense are within five years.
It should not always be required that each DWI offender face the maximum suspension period as proper and fair punishment.
previously been required to attend such a program, or the required attendance at the program had been waived, the Judge nonetheless shall order the suspension of the driver's license, permit, or operating privilege of that person for a period determined by the Judge according to the following schedule: 8. SUSPENSION OF MINOR’S DRIVERS LICENSE
Code of Criminal Procedure, Article 42.12, Section 13 (n):
Notwithstanding any other provision of this section or other law, the Judge who places on community supervision a Defendant who is younger than 21 years of age and convicted for an offense under Sections 49.04 - 49.08, Penal Code, shall:
What Every Ethical Attorney Needs To Know About DWI Law Page 15
Minors are treated differently in most criminal cases. DWI is no exception. Many Lawyers, Prosecutors and Judges are unacquainted with this statute. It is found at the end of Chapter 42, Section 13 of the Code of Criminal Procedure. It applies to persons who are convicted when they are younger than 21 years of age and placed on probation.
The provisions of this section are mandatory and not discretionary. It states that "… the Judge who places on community supervision a Defendant who is younger than 21 years of age and convicted for an offense under Sections 49.04 - 49.08, Penal Code,
1. Order that the Defendant's driver's license be
2. Require
The Judge who follows this law should make an entry on the docket of the Court of this order and be sure that his Clerk’s are aware of this condition. The Clerk must then be sure that the Department of Public Safety receives this information for its records and actions. Unless this information is received, the Department may suspend the license for a longer period of time.
The Department is most familiar with the Traffic Code and they will follow it without further instruction. They will however defer to a Judge’s order in this instance.
Texas Transportation Code §521.342 specifically concerns "Persons under 21 years of age". Subsection (b) states that upon conviction for DWI, Intoxication Assault or Intoxication Manslaughter, "The Department shall suspend for one year the license of a person under 21 years of age …" regardless of whether or not an educational class is ordered.
This is another instance in which the Judge should use discretion and consider a different education program for the offender. The DWI class may not get the attention of the youthful offender. There are many other programs available for youthful offenders that should be investigated to assist in the deterrence of repeat offenders.
Another important aspect of this provision is that the suspension is immediate and not subject to a deferral of the suspension for thirty days. The thirty day extension of driving privileges only applies to persons over the age of 21.
(1) order that the Defendant's driver's license be suspended for 90 days beginning on the date that the person is placed on community supervision; and
(2) require as a condition of community supervision that the Defendant not operate a motor vehicle unless the vehicle is equipped with the device described by Subsection (i) of this section.
shall: suspended for 90 days beginning on the date that the person is placed on community supervision; and as a condition of community supervision that the Defendant not operate a motor vehicle unless the vehicle is equipped with the device described by Subsection (i) of this section." (Deep Lung Device)
What Every Ethical Attorney Needs To Know About DWI Law Page 16
9. CREDIT FOR ALR REFUSAL SUSPENSION
Texas Transportation Code §521.344:
(c) The Court shall credit toward the period of suspension a suspension imposed on the person for refusal to give a specimen under Chapter 724 if the refusal followed an arrest for the same offense for which the Court is suspending the person's license under this chapter. The Court may not extend the credit to a person:
(1) who has been previously convicted of an offense under Section 49.04, 49.07, or 49.08, Penal Code; or
(2) whose period of suspension is governed by Section 521.342(b).
This statute is virtually unknown and a surprise to anyone I talk with about DWI. In 1995 when DWI was brought into the Penal Code, this provision was added by the legislature. It is remarkable that this provision only applies to persons who
This is also not a discretionary matter. This statute states that, "(c) The Court
This credit is also not extended to repeat intoxication offenders.
refuse to take a breath test. shall credit toward the period of suspension a suspension imposed on the person for refusal to give a specimen under Chapter 724 (Refusal DWI) if the refusal followed an arrest for the same offense for which the Court is suspending the person's license under this chapter." 10. COMMUNITY SERVICE PROVISIONS
Code of Criminal Procedure Article 42.12, Section 16 (a):
A Judge shall require as a condition of community supervision, that the Defendant work a specified number of hours at a community service project or projects for an organization or organizations approved by the Judge and designated by the department, unless the Judge determines and notes on the order placing the Defendant on community supervision that:
(1) the Defendant is physically or mentally incapable of participating in the project;
(2) participating in the project will work a hardship on the Defendant or the Defendant's dependents;
(3) the Defendant is to be confined in a substance abuse punishment facility as a condition of community supervision; or
(4) there is other good cause shown.
As previously discussed, a Judge and the Prosecutor have wide discretion in plea offers and DWI punishment. Community Service is another one of those areas of discretion.
Under this provision the Judge may not require Community Service hours of the Defendant if the Defendant suffers any type of physical or mental infirmity that would
What Every Ethical Attorney Needs To Know About DWI Law Page 17
make him or her incapable of performing the work. It also allows the Judge to forego this condition if the performance of the Community Service will work a hardship on the Defendant or Dependents of the Defendant. A Judge should investigate into these facts if a Defendant appears pro se before them or the Attorney is requesting that this condition be waived.
This provision requires a Judge to waive Community Service if the Defendant is ordered to be confined in any substance abuse facility. This means that completing a program like Substance Abuse Felony Program (SAFP) should eliminate the Community Service requirement.
A Judge’s discretion to waive Community Service is also specifically preserved with Subsection (a) (4) that states that community service may also be waived if "there is other
Repeating the premise that DWI offenders are not typical "criminals" and subject to many extrajudicial punishments, I believe that Courts should consider waiving or reducing Community Service hours ordered for DWI offenders.
good cause shown." 11. COMMUNITY SUPERVISION PERIOD
Code of Criminal Procedure Article 42.12, Section 3(c):
The
I don’t know whether Judges believe that two years probation is mandatory for DWI cases, it is a custom of habit or just plain apathy to the hardship of Community Supervision. I include this provision just to put to rest that a Judge does not always have to make DWI probation period two years! It is perfectly within your discretion whether you or a jury recommended probation. Revisit your position on this issue, please. Compare it with other punishments you order in misdemeanor cases. Review the times that I have stated are needed to complete the other conditions of probation. And, finally, seriously consider ordering less than two years for the DWI cases that truly deserve it.
maximum period of community supervision in a misdemeanor case is two years. 12. D.W.I. ENHANCEMENTS
Effective September 1, 2005, Penal Code§ 49.09 (e) and (f) are repealed. The effect of this amendment will be to allow the State to enhance D.W.I.’s with prior convictions more than 10 years old. While convictions from the 70’s are now fair game for enhancement purposes, there may be other limitations on their usefulness. For example, old judgments failing to show an explicit waiver of jury will still be invalid.
See, Samudio v. State, 648 S.W.2d 312 (Tex.Crim.App. 1983).
What Every Ethical Attorney Needs To Know About DWI Law Page 18
X. CONCLUSION
DWI is different and everyone knows it. It is one of the most complex areas of criminal law in Texas. Judges, Prosecutors and Defense Lawyers should take time to revisit all of the DWI laws.
This paper is intended to educate enlighten and encourage you to re-read the DWI statutes. We are all on the same side. Nobody supports drunk driving. Responsible social drinking and driving is our goal. We must remain vigilant to our primary purpose: To promote Justice and defend our Constitutions.
What Every Ethical Attorney Needs To Know About DWI Law Page 19 What Every Ethical Attorney Needs To Know About DWI Law Page 20
OCCUPATIONAL LICENSE WAITING PERIODS
ADULTS - Administration License Suspension
Statute
Prior Alcohol Related Contact Type
Waiting Period
TTC §521.251(a)
No Prior Contact Suspensions
None
TTC §521.251(b)
Prior ALR Contact within 5 years
90 days
TTC §521.251(c)
Prior DWI Conviction Contact within 5 years
180 days
MINORS - Administration License Suspension
NOTE: Not applicable to refusals. Only for failure or detected by other means cases
See TTC §522.022(d)
Prior Alcohol Related Contact Type
Waiting Period
1
st DWI or DUI arrest and ALR Suspension
30 days
Prior Conviction ABC §106.041, Penal §49.04, 49.07 or 49.08
60 days
Prior Convictions ABC §106.041, Penal §49.04, 49.07 or 49.08
Entire Suspension Period
DWI 1st Offense (or beyond 10 years) - Conviction Suspension
(No DWI Education Class)
Prior Alcohol Related Contact Type
Waiting Period
No Prior Contact Suspensions
None
Prior ALR Contact within 5 years
90 days
Prior DWI Contact within 5 years
180 Days
DWI 2nd Offense (§49.09 punishment)

Prior Alcohol Related Contact Type
Fact Situations to Look For
Waiting Period
No Prior Contact Suspensions within 5 years
Prior Obstruction & ALR Win
None
Prior ALR Contact within 5 years
Prior Obstruction & ALR Loss
90 days
Prior DWI Contact within 5 years
Prior DWI with No education Class
180 days

NEW STATUTE TTC §525.251(d)

Prior Alcohol Related Contact Type
Waiting Period
Final conviction w/in 5 years of instant case
1 year from date suspension begins
DWI 2
nd offense w/in 5 years
1 year from date suspension begins

What Every Ethical Attorney Needs To Know About DWI Law Page 21
SUSPENSION PERIODS
ADULTS – Administrative License Hearing
Statute
Type
No Prior Contact*
Prior Contact w/in 10 Years
TTC §524.022(a)
Refusal
180 days
2 years
TTC §524.022(a)
Failure
90
1 year
* §524.001(3) "... ‘contact’ means a driver’s license suspension from:

1. Conviction for intoxicated offense
2. Refusal to submit to taking of specimen
3. BAC test > 0.080

MINORS - Administrative License Hearing

Statute
Type
No
prior convictions*
1
prior conviction
2
prior convictions
TTC §524.022(b)
Failure> 0.080
60 days
120 days
180 days
TTC §524.022(b)
Detected by Other Means
60 days
120 days
180 days
*Conviction for 106.041, 49.04, 49.07 or 49.08 (deferred adjudication for 106.041 is considered a conviction)
DWI Conviction Suspension Periods

Statute
Offense Level
Least Amount
Highest Amount
CCP §42.12 Sec. 13 (k)
First DWI Offense
90 days
1 year
CCP §42.12 Sec. 13 (k)
Second DWI within 10 years
180 Days
2 years
CCP §42.12 Sec. 13 (k)
Second DWI within 5 years
1 year
2 years
CCP §42.12 Sec. 13 (m)
MINOR DWI Probated
90 days
DLD required as condition of probation

***NOTE: TTC§521.344(c) -
"The Court shall credit toward the period of suspension a suspension imposed ... for refusal to provide a specimen..." (180 days credit) {Not applicable to DWI 2nd or Minors §521.342(b)}

Tags:

WHAT EVERY ETHICAL ATTORNEY NEEDS TO KNOW ABOUT DWI LAW, DAVID S. HUNTER update by CHRIS HOOVER

Jan. 13th, 2008 at 2:54 PM

WHAT EVERY ETHICAL ATTORNEY NEEDS TO KNOW ABOUT DWI LAW
Fort Bend Bar Association
August 25, 2005
Richmond, Texas
Presented by
DAVID S. HUNTER, J.D., M.S., M.B.A., B.S.
Judge, County Court at Law #1
Fort Bend County, Texas
1600 Highway Six, Suite 450
Sugar Land, Texas 77478
(281) 277-1500
davidhunter@westfirm.com
Updated to included changes made by the 79
th Texas Legislature by CHARLES STANFIELD
Based on a paper written and originally presented at the 29
th Annual Advanced Criminal Law Course under the title "Ten DWI Statutes Everyone Should Know" by CHRISTOPHER N. HOOVER
520 Central Parkway East, Suite 112
Plano, Texas 75074-5526

(888) 252-4394www.dwitexas.com

WHAT EVERY ETHICAL ATTORNEY
NEEDS TO KNOW ABOUT DWI LAW
Based on a paper written and originally presented at the 29
th Annual Advanced Criminal Law Course under the title "Ten DWI Statutes Everyone Should Know" by CHRISTOPHER N. HOOVER
Updated to include changes made b the 79
th Texas Legislature by CHARLES STANFIELD
Presented by
DAVID S. HUNTER
I. INTRODUCTION
Each year there are over 100,000 DWI arrests in Texas. DWI cases comprise almost one third of each County Court docket. In the larger counties, this means that literally thousands of cases are DWI.
Statewide over 85% of these cases are resolved by plea bargain agreements and uncontested pleas of guilty or no contest. To the accused (and many in the criminal justice system), they are NOT criminals. This is because anyone who drinks alcohol and drives a car is likely to be stopped or arrested for DWI during his or her driving lifetime, no matter what the lifestyle.
The purpose of this paper is threefold:
1. To ethically educate Judges, Prosecutors and Defense Attorneys as to what the client feels is important in successful resolution of their case;
2. Provide an overview of twelve DWI statutes; and
3. Provide a resource for license suspensions, occupational licenses, waiting periods and ignition interlock devices.
II. ETHICALLY REPRESENTING THE TYPICAL DWI CLIENT
As an Attorney whose practice is focused on the defense of intoxication charges, I can truthfully say that there is no "typical" DWI client. Each client brings unique features and concerns related to the pending criminal case. Each arrestee therefore, in my opinion, should be looked at as being unique and the Defense Attorney has a duty to investigate and address the needs of the particular client in the criminal justice system.
The average DWI arrestee is not the average criminal offender. In fact, many of them are model citizens of the community. Because there is no criminal intent required to commit
What Every Ethical Attorney Needs To Know About DWI Law Page 1
this offense, most DWI offenders are arrested and convicted without ever intending to break the law. Even people who speed have a greater criminal intent than the average DWI Defendant.
Because of their "unique" characteristics, I suggest that they should be considered more carefully in plea negotiation and sentencing by all parties involved.
III. ETHICS AND THE DEFENSE LAWYER
The Criminal Defense Lawyer has a duty to listen to his or her clients and find out what is most important to them. More importantly, the Defense Lawyer should follow the client’s wishes in pursuit of a successful disposition of their case. Many Defense Lawyers forget that deciding whether to enter a plea of guilty or not guilty is a
I believe that the Defense Lawyer has a duty to investigate the personal qualities of his DWI client so that they can be effectively communicated to the Prosecutor and Judge for proper sentencing in a DWI case.
Consider these two situations. The first client is a 37 year old single mother with two children ages 7 and 12. She goes out for a "mother’s night out" with her girlfriends, has a few glasses of wine with dinner and is arrested for DWI on her way home.
Her life is consumed with driving. She drives back and forth to work, back and forth to school, back and forth to extracurricular activities and performing normal household duties (grocery store, pharmacy, doctor’s officer visits, church, etc.). This woman
On the other hand, the fact that she has a criminal conviction is the least of her worries. She has a good job and good relationship with her employer. A conviction for DWI will not cause her the loss of her job. Her future is solid and she is not anticipating any future employability issues. Even though the facts of the case make it a good one for trial, this client may choose a plea bargain if the details of probation conditions are not perceived as that onerous.
Contrast this client with a 23 year old college graduate in a new job. He has been out with some "college buddies" to the local tavern and indulged in his old college drinking practices only to learn that the metropolitan police department is not as kind as the old college campus police force.
This client has no children and his only responsibility is to himself. He needs to drive back and forth to work, but the 4 or 12 hour Occupational License does not seem to be
client decision, not the Attorney’s. The Attorney should advise the client of all possible consequences of both the plea and the trial to help the client make an informed decision about the case. depends on driving to keep her job and provide for her children. Any forfeiture of driving privileges will cause her world to crash before her eyes. Mention more time in jail and the panic and fear is obvious.
What Every Ethical Attorney Needs To Know About DWI Law Page 2
such a life altering hardship if convicted. Even spending a few days in jail versus reporting to a probation officer for two years seems to be a viable option for resolution of his case.
He’s learned a valuable lesson from the arrest, but has much different considerations about a conviction in his case. Namely, he is worried about his insurance rates and his future employability with a DWI conviction on his record. The price of a conviction is much higher than the possible punishment.
This client also presents an additional interested party: the parents. Parents are charged with looking after the best interests of their children. If Johnny is convicted of DWI, all of the money spent on college may have been spent in vain. Even if parents believe their child has an alcohol problem, they want them to be given a break. After all, in their early adult years, police used to look out for them and either call their parents or give them a ride home. Parents do not typically appreciate that those days are no longer here.
Each of these clients presents many aspects of punishment considerations under current DWI laws in Texas. Without learning the personal characteristics of each client, neither the justice system nor the client will be served.
IV. ETHICS AND THE CONSEQUENCES OF DWI
We need to begin considering the unique consequences of a DWI arrest and conviction from the point of view of the offender, not the Lawyer, Prosecutor or Judge. By evaluating DWI from the offender’s viewpoint, we can not only more adequately deter repeat offenders, but also more properly (and less emotionally) punish an individual for the crime that has been committed.
A short list of consequences is:
1. Criminal conviction;
2. Loss of driver’s license ($125 fee);
3. Community Service (24-100 hours);
4. M.A.D.D. Victim Impact Panel (3 hours);
5. Fines and Court Costs ($1,000);
6. Monthly probation reporting;
7. Monthly probation fees ($25-60 per month);
8. Ignition Interlock Device ($75 per month);
9. A night in jail ($500 bail);
10. Trip to the impound lot ($85);
11. Embarrassment and/or loss of self-esteem;
12. Loss of social standing;
13. Multiple Court Appearances;
14. "Home Visits" by probation officer;
15. Interference with employment such as time missed from work;
16. Future employability and/or continued employment;
17. Increased Insurance rates and/or cancellation of Insurance (300% for 4 years);
What Every Ethical Attorney Needs To Know About DWI Law Page 3
18. Stress and anxiety of pending case; and
19. Paying our fee.
V. WHY THIS INFORMATION IS IMPORTANT
FROM AN ETHICAL PERSPECTIVE
Because the prompt and successful resolution of criminal cases is high on the priority list for all parties involved, closer attention should be paid to the particulars of the DWI client. Judges want to move more cases, Prosecutors want to advance in their respective offices and Defense Attorneys want to help their clients and receive payment for their services. Prolonging the life of a DWI case does not serve any of these purposes, but thoughtful and proper punishment does. Therefore, I believe that we should all pay closer attention to the client/accused’s concerns for a more efficient resolution of these cases.
There is one other point to make here. Successful investigation and advice for a DWI case is timely. The client must be interviewed, the facts investigated, the Prosecutor’s case reviewed, the Administrative License Revocation Hearing prepared for and presented, the videotapes retrieved and reviewed the client advised and consulted with and letters drafted.
Another matter, from the Defense Attorney’s point of view is fees. Most clients do not have all of the money it will take to resolve their case when they hire a lawyer. Most have never used an attorney before and are totally unaware of the time and costs involved for competent representation. Most attorneys accept a deposit toward a total flat fee. The remainder is financed over the life of the case. Being paid for representation is key in any business and necessary for continued existence.
VI. ETHICALLY DEALING WITH THE JUDGE
In Texas, Judges are elected. They are therefore ultimately responsible to the voters for their jobs. One of the most touted election promises is "prompt and efficient resolution of cases." The other "vote getter" is the promise to be stern with "drunk drivers." Judges see the facts in the trials before them and should be aware that most DWI Defendants are not "drunk drivers."
Judges have an "angel" sitting on each shoulder. "Discretion" and "harmless error" are their names. Harmless error is most helpful in the appellate process and discretion reigns supreme in the Courtroom. I believe that Judges should understand that DWI is a unique crime and use their discretion in fashioning the most appropriate punishment for each offender before them.
The first opportunity a Judge has to exercise discretion in a DWI case is upon release from jail and whether to require a deep lung ignition device (DLD) on the offender’s car.
What Every Ethical Attorney Needs To Know About DWI Law Page 4
I understand that all Judges are sensitive to "bad press." The last thing any Judge wants to do is open the morning paper to a story about a violent car wreck in which a mother and children were killed by "another drunk driver" who is "out on probation" in his or her Court! But this requirement is quite punitive, embarrassing and expensive to the offender and this requirement is allowed under our law where a person is
The specific statute (Code of Criminal Procedure Article 17.441) is vague and does not specifically "require" a DLD on everyone who has ever had a prior DWI or alcohol related case. The statute states that it is required when there is a "subsequent offense" under Chapter 49 of the Penal Code. The language of the prior statutes (Vernons §6701l) is omitted. This implies that if the "former" DWI is remote in time a DLD is not a mandatory requirement of bond.
The Judge also has the power and authority to not require such a device when it would not be in the best interest of justice. Judges should ask probing questions and rely on their wisdom and experience to effectively execute this powerful discretion.
Judges are lawyers too and should recognize and be aware that DWI laws are quite harsh. One such reality is the inability to grant deferred adjudication.
Deferred adjudication is a very tempting offer and a gracious order by the Court in other cases. It provides the Defense Attorney with a real alternative other than trial in severe cases.
Typically touted as leaving no record, modern databases for criminal records do not make a distinction for jail time, regular probation and deferred adjudication. Deferred adjudication is a major victory from the client’s perspective in any other criminal case.
Deferred dispositions also increase the confidence in the Defense Attorney and convey a message of reasonableness, understanding and justice from the District Attorney’s office and criminal justice system. Deferred adjudication is a "win-win" method of disposition that is legally unavailable for the DWI offender.
I understand that granting deferred adjudication is not within the Judge’s discretion. Some Judges however frown upon a District Attorney recommendation for a DWI reduction or dismissal as a policy. Judges should be reminded that the Prosecutor and Defense Lawyer are much more familiar with the facts of the case and have dealt in proper negotiation. These agreements are not presented on a regular basis. Judges should rely on the Attorneys’ wisdom and experience.
Another opportunity for judicial discretion is the specific conditions of probation. First of all, they should revisit the length of the probationary period ordered.
The Code of Criminal Procedure, Article 42.12 Section 3(c) states that, "The
presumed innocent! maximum period of community supervision in a misdemeanor case is two years" (emphasis added).
What Every Ethical Attorney Needs To Know About DWI Law Page 5
In almost every DWI case in which probation is granted, the term of probation ordered is two years. This seems unfair when comparing DWI to other misdemeanor cases.
Possession of marijuana under two ounces is typically a one year deferred adjudication sentence. Theft (even from your employer) is likewise a one year deferred adjudication time period. Criminal mischief, trespass, prostitution and most other misdemeanor probations are less than the two year maximum period.
When you combine the differences between those types of offenders and DWI Defendants, it seems illogical and unfair that a DWI offender gets a more severe sentence from the client perspective.
The Code of Criminal Procedure, Article 42.12, Section 20 discusses the power of the Judge to grant early release to a Probationer. Again, DWI offenders have been differentiated. Paragraph (b) states that "this section does not apply to a Defendant convicted of an offense under Sections 49.04 - 49.08 Penal Code…"
Some Judges have told me that they believe the two years are needed to fulfill all probation conditions. Let me offer them some information on the time involved in the typical DWI conditions of probation:
1. DWI Education Class - two four hour classes (that can be scheduled on weekends in most cases);
2. M.A.D.D. Victim Impact Panel - one three hour session;
3. Community Service (80 hours) - requiring that this be completed at the rate of 8 hours per months = 10 months;
4. Fines and Court Costs ($1,000) - paid at $100 per month = 10 months; and
5. Alcohol/Drug Evaluation - 30 minutes to one hour (done at orientation).
The remainder of the conditions of probation are identical to most other misdemeanor offenses. This means that a one year period of community supervision is more than adequate time to fully satisfy all probation conditions.
Because early release is not available for DWI, I believe that Judges and Prosecutors alike should revisit their respective positions on recommending or ordering 24 months for DWI supervision.
VII. ETHICS AND THE PROSECUTOR
I have never been a Prosecutor and will not pretend to try to explain the personal and bureaucratic policies in their work. I simply want to provide some input from the citizen’s viewpoint.
As discussed earlier, DWI Defendants are different. Even in the State’s closing argument they tout that they are "not saying Mr. Smith is a bad guy, he just made the wrong decision." If you truly believe this, why isn’t this considered in the plea bargain process?
What Every Ethical Attorney Needs To Know About DWI Law Page 6
In counties where Prosecutors have some discretion, I suggest that they consider the offer they are recommending. If they truly want to dispose of cases that do not need to be tried or cannot be won, the particular facts of arrest and Defendant’s characteristics should be considered.
Prosecutors should recognize that an offer of 180 days in jail, probated for two years is an offer of maximum punishment. And a plea bargain of the maximum is no bargain! Taking a case to trial with this recommendation means that the client will lose nothing but a trial fee for requesting that the State prove its case. And, as we all know, anything can happen in a jury trial.
The fine should be thoughtfully measured. DWI offenders are punished more monetarily than any other misdemeanor offense. A few of the other costs are:
1. Towing fee $80
2. Bonding fee $500
3. Vacation days taken for Court $???
4. Probation fees - ($40 X 24) $960
5. DWI Education Class $125
6. Attorney’s fees $???
7. M.A.D.D. fee $20
8. Evaluation fee $25
9. Ignition Interlock $75 per month
The new "point system" for driver’s licenses is now in effect. The DWI provision states that the DPS "surcharge" for a DWI conviction is $1,000. If it is a case with a breath test score of 0.160 or higher, the charge is increased to $2,000 (the equivalent of a maximum fine for conviction!).
Community service should also be considered realistically and individually. Not all offenders should be ordered to complete 80 hours or 80% of the maximum number of hours allowed by law. A reduction in the amount of hours offered in a plea agreement can be quite enticing to a Defendant considering probation.
VIII. ETHICAL DWI RECOGNITION AND DETERRENCE
The current DWI system has a major flaw: failure to identify problem drinkers during their first encounter with the criminal justice system.
Judges throughout Texas require all DWI offenders to submit to testing for potential alcohol and substance abuse problems. In each county in which I normally practice, there is a different "examinations" to attempt to identify "problem drinkers." Each test is equally ineffective at identifying the repeat DWI offender. This is true because alcohol abusers are very unique and hard to identify.
What Every Ethical Attorney Needs To Know About DWI Law Page 7
Until the problem offenders can be better recognized, Judges cannot abdicate their duty to inquire and evaluate the particular needs of the particular offender. Although this is time consuming and laborious, it is a better method to achieve safer roads for all Texans.
Judges should insist that the Prosecutors, Community Supervision Officers and Defense Attorneys supply them with enough credible information for them to make accurate determinations as to what punishment or rehabilitation will prevent each offender from returning to the justice system.
Effective criminal justice is an intensely "interdependent" environment. Without all three parties taking more responsibility for the appropriate consequence or punishment, the prevention of repeat DWI offenders will remain unaddressed in the Courtroom or the Legislature.
What Every Ethical Attorney Needs To Know About DWI Law Page 8
IX. 12 DWI STATUTES TO KNOW
When I began writing this article and preparing this presentation I asked several people their ideas concerning a topic. All of the suggestions reminded me of common questions that I am stopped and asked about everyday in the Courthouse.
The major dilemma in DWI law is that it is not contained in one section of the law. In fact, DWI laws are not even in the same book.
To practice DWI Defense effectively, the Lawyer must be very familiar with the Penal Code, Code of Criminal Procedure, Government Code, Administrative Code, Family Code and Traffic Code. I decided that I would present the twelve most confusing and most often misunderstood statutes that we face in every DWI case.
1. DRIVING ON ROADWAY LANED FOR TRAFFIC
Texas Transportation Code §545.060:
(a) An operator on a roadway divided into two or more clearly marked lanes for traffic:
(1) shall drive
(2) may not move from the lane
as nearly as practical entirely within a single lane; and unless that movement can be made safely.
The most often cited traffic violation for reasonable suspicion to stop a motorist is "failing to maintain a single lane of traffic" ( T.T.C. §545.060).
Truthfully speaking, it is the most likely (and most subjective) reason a Police Officer can use to detain a motorist.
This violation also serves as the first "prong" to suspend a person’s driver’s license under the current Administrative License Revocation rules. When written in a police report, it requires little precision or description in the wording to overcome the preponderance standard for the burden of proof of reasonable suspicion.
In the world of appeals, it is virtually never appealed past the Municipal Court. It was not until it became a frequent justification for stops in DWI cases that it was found in an appellate decision (
The facts of Tarvin are quite clean and simple. The opinion states the following: "The sparse facts indicate that on June 8, around 2:00 a.m., Officer Diron Hill followed Tarvin and observed him drift to the right side of a two lane road causing his tires to go "over" the solid white line at the right-hand side of the road on two or three occasions. [fn2] Hill activated his overhead emergency lights, and Tarvin pulled over in response. There is no evidence regarding what followed."
Tarvin v. State, 972 S.W.2d 910 (Tex.App.-Waco 1998)).
What Every Ethical Attorney Needs To Know About DWI Law Page 9
The record also supports the single stated issue of this decision: "Did these facts support a reasonable suspicion to stop a motorist?"
The opinion noted that Officer "...Hill never testified that he was conducting an investigatory stop, nor did he testify to suspecting any criminal activity other than weaving out of the lane. In other cases where a stop was justified in part because of weaving, the activity involved something else, i.e., going into another lane of traffic, high rates of speed, or erratic speed changes. [fn5] Hill testified that he did not observe any other driving infractions."
Judge Daryl Coffey’s analysis of the facts were not disturbed or viewed as an abuse of discretion. The most memorable finding of fact comes right out of this opinion and is the best reason for a good Attorney (or Judge) to question and analyze all of the facts surrounding a stop and applying good old fashioned common sense to a case. Judge Coffey found that: "The Court found that Tarvin ‘doesn't weave out of a lane, he's within a lane. Driving a car, in and of itself, has to be - I mean, is controlled weaving…" "The record contains evidence that Tarvin either drove on or over the right-hand white line."
This opinion stands for the proposition that motorists should be allowed some leniency in road travel. As long as someone is doing a fair job staying within the lanes, under the circumstances, it should not be a reasonable suspicion to stop if he poses no danger to himself or others.
I have tried cases and ALR hearings where I have presented photographic evidence that there are no lanes of traffic. No line separating oncoming traffic. The question became, which lane belonged to my client?"
Judges and Lawyers alike should look for this type of detail when analyzing these DWI stops. Not all Police Officers will misrepresent a fact, but occasionally, it happens. Too many Lawyers refuse to view the scene of the stop.
If an Officer continually makes this mistake, it needs to be brought to someone’s attention and our right to privacy should not be jeopardized even if justified by "catching a drunk driver."
I am amazed at how many Lawyers and Judges have never read this statute. I therefore list it as my Number 1 statute everyone should know about DWI.
2. CONDITIONS REQUIRING VEHICLE IGNITION INTERLOCK
Code of Criminal Procedure Article 17.441:
(a) Except as provided by Subsection (b), a magistrate shall require on release that a Defendant charged with a subsequent offense under Sections 49.04 - 49.06, Penal Code, or an offense under Section 49.07 or 49.08 of that code:
(1) have installed on the motor vehicle owned by the Defendant or on the vehicle most regularly driven by the Defendant, a device that uses a deep-
What Every Ethical Attorney Needs To Know About DWI Law Page 10
(b) The magistrate may not require the installation of the device if the magistrate finds that to require the device would
lung breath analysis mechanism to make impractical the operation of a motor vehicle if ethyl alcohol is detected in the breath of the operator; and
(2) not operate any motor vehicle unless the vehicle is equipped with that device.
not be in the best interest of justice.
This statute was previously discussed above in the section relating to Judges. The only point that needs to be repeated is that the law is very exact on when this condition is required and Judges should use their discretion to avoid discounting the presumption of innocence that all citizens are afforded when merely accused of a crime. They should also realize that an arresting officer does not have as much discretion in making an arrest when his computer reveals that the suspect has had a prior DWI arrest or conviction.
Code of Criminal Procedure, Article 42.12
§ 13 (i) If a person convicted of an offense under Sections 49.04-49.08, Penal Code, is placed on community supervision, the court may require as a condition of community supervision that the defendant have a device installed, on the motor vehicle owned by the defendant or on the vehicle most regularly driven by the defendant, that uses a deep-lung breath analysis mechanism to make impractical the operation of the motor vehicle if ethyl alcohol is detected in the breath of the operator and that the defendant not operate any motor vehicle that is not equipped with that device. If it is shown on the trial of the offense that an analysis of a specimen of the person's blood, breath, or urine showed an alcohol concentration level of 0.15 or more at the time the analysis was performed, or if the person is convicted of an offense under Sections 49.04-49.06, Penal Code, and punished under Section 49.09(a) or (b), Penal Code, or of a second or subsequent offense under Section 49.07 or 49.08, Penal Code, and the person after conviction of either offense is placed on community supervision, the court shall require as a condition of community supervision that the defendant have the device installed on the appropriate vehicle and that the defendant not operate any motor vehicle unless the vehicle is equipped with that device.
This amendment to Article 42.12 becomes effective on September 1, 2005. The change introduces a mandatory requirement that probationers with alcohol concentrations above .15 shall be required to install a VID on their vehicles. The amendment; however, fails to explain what constitutes a showing of .15 or more. In the past, there would never be a situation in which the State would plead a test score in excess of .08. The best practice would appear to be an additional paragraph in the charging instrument, or additional language within a test paragraph that makes a specific allegation.
What Every Ethical Attorney Needs To Know About DWI Law Page 11
3. NO DEFERRED ADJUDICATION FOR INTOXICATION OFFENSES
Code of Criminal Procedure Article 42.12, Section 5 (d) (1) (A):
(d) In all other cases the Judge may grant deferred adjudication unless:
(1) the Defendant is charged with an offense:
(A) under Section 49.04, 49.05, 49.06, 49.07, or 49.08 Penal Code.
This statute was also discussed earlier. I include this statute because of the many times that I have to explain it to my clients. They typically do not understand why they could receive deferred adjudication for murder, but not DWI.
It is most upsetting when the client tells me that another Lawyer has told them that they were eligible for deferred adjudication for DWI. This implies to me that Lawyers don’t know this law and they must if they choose to represent someone accused of DWI. I once even had an Attorney approach me in Court and asked what she needed to do to get the Prosecutor to recommend deferred adjudication for her DWI client. She was quite embarrassed when presented with this statute.
4. NO EARLY RELEASE FOR DWI
Code of Criminal Procedure Article 42.12, Section 20(b):
(b) This section does not apply to a Defendant convicted of an offense under Sections 49.04 - 49.08 Penal Code…
I cannot tell you how many times I am asked a question about early release for DWI. I have also seen Judges grant early release to DWI probationers. Although I would love to have all of my clients released early from probation, I do not believe that a Defense Attorney can ethically ask a Judge to not follow a very specific law.
I include this statute in my "top ten" because everyone really needs to know it, Prosecutors, Judges and Defense Attorneys. Shorter probation periods should be requested in plea negotiations, considered by Judges in punishment and correctly represented by Defense Counsel to clients and the Court.
5. JAIL TIME AS A CONDITION OF PROBATION
Code of Criminal Procedure Article 42.12 Section 13 (a)(1):
A Judge granting community supervision to a Defendant convicted of an offense under Chapter 49, Penal Code shall require as a condition of community supervision that the Defendant submit to:
(1)
not less than 72 hours of continuous confinement in county jail if the Defendant was punished under Section 49.09(a); not less than five days
of confinement in county jail if the Defendant was punished under Section 49.09(a) and was subject to Section 49.09(h);
What Every Ethical Attorney Needs To Know About DWI Law Page 12
This statute was amended to change the old three days of confinement to a new 72 continuous hours. Presumably, this is to prevent weekend service or two-for-one credit.
Texas Penal Code §49.09(a):
Except as provided by Subsection (b), an offense under Section 49.04, 49.05, 49.06, or 49.065 is a Class A misdemeanor, with a minimum term of confinement of 30 days , if it is shown on the
Texas Penal Code §49.09(b):
An offense under Section 49.04, 49.05, 49.06, or 49.065 is a felony of the third degree
(1) one time of an offense under Section 49.08 or an offense under the laws of another state if the offense contains elements that are substantially similar to the elements of an offense under Section 49.08; or
(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.
This too is a very misunderstood and confusing area of DWI law. The main reason for the confusion stems from the answer to the question, "How much jail time is required?" because the answer is different depending on where you look.
Texas Penal Code §49.04(b) states that the minimum term of confinement for a DWI 1st offense is 72 hours with a maximum of 180 days. This is increased to a minimum of 6 days in jail if an open container was alleged and proven. Article 42.12 refers to §49.09 when discussing confinement.
Code of Criminal Procedure Art. 42.12 Sec. 13 reads in part: "(a) a Judge granting community supervision to a Defendant convicted of an offense under Chapter 49, Penal Code shall require as a condition of community supervision that the Defendant submit to:
(1)
not less than 10 days
or
of confinement in county jail if the Defendant was punished under Section 49.09(b) or (c); not less than 30 days of confinement in county jail if the Defendant was convicted under Section 49.07; trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated. if it is shown on the trial of the offense that the person has previously been convicted: not less than three days of confinement in county jail if the Defendant was punished under Section 49.09(a); not less than five days
of confinement in county jail if the Defendant was punished under Section 49.09(a) and was subject to Section 49.09(h); not less than 10 days
of confinement in county jail if the Defendant was punished under Section 49.09(b) or (c);
What Every Ethical Attorney Needs To Know About DWI Law Page 13
The confusion comes with the references to §49.09 of the Penal Code. §49.09(a) is the provision that makes it a Class A misdemeanor if the Defendant has one prior DWI conviction
§49.09(g) was amended in 2001. It increases the minimum term of confinement as a probation condition to five days, if comparing the dates of offense of both cases shows that they were committed within 5 years
or
not less than 30 days of confinement in county jail if the Defendant was convicted under Section 49.07;… . The code is silent for confinement as a condition for a first time offender. .
Ten days confinement as a minimum term for confinement as a condition of probation is required when the Defendant is punished under §49.09(b) or (c). Those provisions relate to Defendants who have either one conviction for an Intoxication Manslaughter type offense or two prior convictions for intoxication operation offenses (DWI, BWI, FWI, Amusement Ride assembly or operation) in Texas or any other state.
Thirty days are required if the Defendant is convicted of Intoxication Assault. The minimum term is increased to 120 days if the crime was Intoxication Manslaughter.

Tags:

APPRISS a necessary Respondent to EXPUNCTION & NON-DISCLOSURE Petitions,Greg Pipes

Jan. 13th, 2008 at 1:43 PM

APPRISS which operates the VINES program which notifies victims of prisoners release information. APPRISS receives information from the District Clerk and there is a contract with Tarrant County requiring APPRISS to comply with Expunction Orders.

Therefore it is important that lawyers know they should add the following respondent in their petitions:

Attn: Bob Popeck

APPRISS Operations Center

10401 Linn Station Road, Suite 200

Louisville, KY 40223-3842

APPRISS is to be added as a necessary Respondent to future petitions.

Could you, and would you, pass this information to members of your organization if you can, and perhaps you could speak of it at your next meeting.

Could you let me know if you or someone in your group could help get the word and the address out to your members so that they can add Appriss to their petitions.

Greg Pipes
Asst. Criminal District Attorney
Tarrant County, Texas

Tags:

PETITION FOR NONDISCLOSURE ORDER Misdemeanor Immediately Eligible,Greg Pipes

Jan. 12th, 2008 at 9:21 PM

No.__(original case #)_____

EX PARTE * IN THE __(original Court ) ___

* COUNTYCRIMINAL COURT

____(full name)_______ * TARRANT COUNTY, TEXAS

PETITION FOR NONDISCLOSURE ORDER

Misdemeanor Immediately Eligible

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now Petitioner herein, and prays this Honorable Court to order the Clerk of this Court and all respondents named herein not to disclose any public criminal history record information related to the offense giving rise to the following described deferred adjudication. In support of this request the above named petitioner would respectfully show the following:

I.

The following information is provided concerning the arrest and charge:

Date of Plea:

Charge:

Date of Discharge and dismissal:

II.

Petitioner is eligible for Nondisclosure 55.01 Code of Criminal Procedure and 411.081 Government code for the following reason:

Petitioner received a Deferred Adjudication Probation for the above described Offense and the Deferred Adjudication Probation was discharged and dismissed.

Petitioner has paid the required $28.00 filing fee.

Petitioner is eligible since the offense is not on the prohibited list or the delayed list.

Petitioner is entitled because:

Not previously convicted of or deferred adjudication for:

1. An offense requiring registration as a sex offender under Chapter 62.04 CCP.

2. An offense under 20.04 PC (Aggravated Kidnapping).

3. An offense of Murder; Capital Murder; Injury to Child, Elderly, or Disabled; Abandoning or Endangering a Child; or Violation of Protective Order or Magistrate Order; or Stalking

4. Any other offense involving family violence defined by Section 71.04, Family Code.

WHEREFORE PREMISES CONSIDERED, Petitioner prays that a hearing be had herein; that reasonable notice of said hearing be given to the State, that after hearing herein, this Court enter an Order directing each of the agencies served by the Texas Department of Public Safety not Disclose any Public Criminal History relating to the offense giving rise to the deferred adjudication.

___________________________

Attorney for Petitioner

___________________________

Phone:

Fax:

S	M	T	W	T	F	S
March 2008
						1
2	3	4	5	6	7	8
9	10	11	12	13	14	15
16	17	18	19	20	21	22
23	24	25	26	27	28	29
30	31

Tags:

Tags:

Tags:

Tags:

Tags:

Tags:

Tags:

Tags:

Tags:

Code of Judicial Conduct Code of Judicial Conduct CANON 5Refraining From Inappropriate Political Activity

COMMENT

CANON 6Compliance with the Code of Judicial Conduct

CANON 7Effective Date of Compliance

CANON 8Construction and Terminology of the Code

Tags:

Code of Judicial Conduct

Office of Court Administration

Preamble

CANON 1Upholding the Integrity and Independence of the Judiciary

CANON 2Avoiding Impropriety and the Appearance of Impropriety In All of the Judge's Activities

CANON 3Performing the Duties of Judicial Office Impartially and Diligently

CANON 4Conducting the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations

Tags:

Tags:

Tags:

Tags:

Tags:

Tags:

Tags:

Tags:

Tags:

Tags:

Latest Month

Tags

Page Summary

Syndicate

Code of Judicial Conduct Code of Judicial Conduct
CANON 5
Refraining From Inappropriate Political Activity

CANON 6
Compliance with the Code of Judicial Conduct

CANON 7
Effective Date of Compliance

CANON 8
Construction and Terminology of the Code

CANON 1
Upholding the Integrity and Independence of the Judiciary

CANON 2
Avoiding Impropriety and the Appearance of Impropriety In All of the Judge's Activities

CANON 3
Performing the Duties of Judicial Office Impartially and Diligently

CANON 4
Conducting the Judge's Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations