Fifth Circuit Court of Appeals
US v. Weast
No. 14-11253 1/26/16
Issue:
Was it a Fourth Amendment violation for police to use peer-to-peer sharing software without a warrant to identify the defendant’s computer IP address and download data he publicly shared?
Holding:
No. Because this information is voluntarily shared with third parties, including the internet-service provider and the peer-to-peer network users, there is no expectation of privacy. The Court also confirms that the Supreme Court decision in Riley v. California does not wipe clean all previous Fourth Amendment precedent. Read.
Commentary:
The Fifth Circuit continues to follow its precedent in this area, and—so far—the United States Supreme Court has not granted a writ of certiorari to consider whether the reasoning of Riley v. California should be extended to limit or overrule the so-called “third party doctrine,” which holds that a defendant does not have a reasonable expectation of privacy in technological evidence if that evidence is voluntarily disclosed to a third party. That doctrine is founded upon the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735 (1979), which is now almost four decades old. Keep watch over whether the Supreme Court (or the Texas Court of Criminal Appeals) will revisit this issue. There is an upcoming Fourth Circuit Court of Appeals decision that the Supreme Court may consider in United States v. Graham, and the Court of Criminal Appeals has just granted a petition for discretionary review in Hankston v. State, in which it may address the “third party doctrine” under the Texas Constitution. So stay tuned.
Texas Courts of Appeals
Salinas v. State (14th COA)
No. 14-12-00378-CR 1/28/16
Issue:
Is Texas Local Government Code §133.102 facially unconstitutional?
Holding:
No. The Court found that funds for “abused children’s counseling,” “law enforcement officers standards and education,” and “comprehensive rehabilitation” serve legitimate criminal justice purposes and are constitutional under Peraza v. State. Read.
Commentary:
Just when you thought that there would be no more decisions on court costs … This decision faithfully follows the recent decisions from the Court of Criminal Appeals in this area, and it should hold up on further review.
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State v. Velasquez (4th COA)
No. 04-15-00239-CR 2/3/16
Issue:
Is the trial court allowed to hold a hearing on a motion to suppress before trial without giving notice to the parties?
Holding:
No. Article 28.01 of the Code of Criminal Procedure requires that when a court decides to hold a pre-trial hearing on a motion to suppress, it must give notice to the defendant, the defendant’s attorney, and the State. Hearing the motion without notice at the trial setting does not meet the requirements of Art. 28.01. Read.
Dissent (Barnard, J.):
Judge Barnard believes that because the State and defense were directed to appear on the trial date and the motion to suppress was still pending at that time, the State had adequate notice that the motion could be considered by the court at that time. Read.
Commentary:
What a wonderful job that the prosecutors in this case did—both at trial and on appeal. This case emphasizes a very important lesson: If a trial judge is attempting to do something or is doing something that is violates proper procedure or that takes away the “level playing field” for the parties, object, repeatedly if necessary, and make sure that the objections are on the record. There is a dissenting opinion, and this decision is published, so we should expect that the decision will be reviewed by the Court of Criminal Appeals.
Office of the Attorney General
Letter from the Webb County Attorney
KP-0060 2/2/16
Question:
What is the procedure for longevity pay for a county employee who later becomes a county official? And what is the salary grievance process?
Answer:
A commissioner’s court order granting longevity pay to certain qualified employees, even if it can be transferred to another county department if the employee is hired there, does not continue for an employee who later is elected to be a county official. Additionally, a county officer must challenge his or her salary according to the procedure laid out in Local Government Code §152.016(a) or the grievance is waived for the upcoming fiscal year. Read.
Commentary:
This opinion appears to be a correct treatment of the relevant statutory provisions. It reports that elected officials (county officers) can receive longevity pay if the county so chooses, but that is under a separate provision and cannot be provided retroactively. Read this decision if this issue of transfer or challenge of salary is of importance to you—it will give you all of the relevant statutory provisions.
Letter from the Liberty County District Attorney
KP-0061 2/2/16
Question:
What are the proper procedures to remove a municipal official under Local Government Code §22.077?
Answer:
Section 22.07 authorizes a Type-A general law municipality to remove a municipal officer for incompetency, corruption, misconduct, or malfeasance at a regular meeting by a majority vote of those present. It also allows a Type-A general law municipality to remove an officer for lack of confidence if two-thirds of all the elected aldermen vote for a resolution of lack of confidence. Read.
Commentary:
The opinion further explains that, if the municipality desires to call a meeting for the removal of the officer, it may be need to do so by way of a two-thirds vote in any event to get the meeting called.