Texas Supreme Court
Webster v. Commission for Lawyer Discipline
No. 23-0694 12/31/24
Issue:
Can the State Bar Commission for Lawyer Discipline pursue a disciplinary matter at the pleadings stage of a case against a public attorney for allegedly violating Texas Disciplinary Rule of Professional Conduct 8.04(a)(3), based on representations the attorney made in case filings?
Holding:
No. While a court can sanction an executive-branch lawyer for conduct that occurs before the court and violates the disciplinary rules, collateral review of a public lawyer’s statements by the commission at the start of litigation is prohibited under the separation-of-powers doctrine. “When filing suit on behalf of the State without any allegation of criminal or ultra vires conduct, the attorney general (and hence the first assistant) is not subject to collateral review of either the choice to file a lawsuit or the representations in the suit’s initial pleadings. Instead, if the contents of the pleadings are objectionable, whether for legal or ethical reasons, only direct scrutiny—that is, by the court to whom the pleadings are presented—is permissible under the separation-of-powers doctrine.” Read opinion.
Dissent (Boyd, J. joined by Lehrmann, J.):
“This disciplinary proceeding against Texas attorney Brent Webster could easily fail for many reasons. But the constitutional separation of powers is not one of them.… Perhaps some other legal doctrine could prohibit the judicial branch from doing ‘collaterally’ that which it can indisputably do ‘directly’ (to use the Court’s new-found terminology), but the separation of powers between the branches does not. If (as the Court concedes) the judicial branch has inherent power to discipline an executive-branch attorney for engaging in professional misconduct, it may—consistent with the separation-of-powers doctrine—discipline that attorney through any lawful exercise of that power. The Court’s freshly minted direct/collateral distinction is unheard of in separation of-powers jurisprudence. It lacks both legal support and logical sense.” Read dissent.
Commentary:
The State Bar Commission operates as an “administrative aid” to the Texas Supreme Court, which is vested with the inherent judicial authority to regulate the practice of law and conduct of attorneys admitted to State bar. Thus, the Commission is an arm of the judicial branch of government. Conversely, the Texas Constitution provides that the Texas Attorney General is an officer of the executive branch of government.
The effect of the majority’s holding essentially eliminates the ability of the Commission to discipline via the “collateral” grievance process any executive-branch attorney—e.g., the Attorney General and his assistant attorneys, who operate under the Attorney General’s authority and within the scope of his constitutional, executive mandate—for any breaches of the Disciplinary Rules of Professional Conduct. Instead, only a court with the power of “direct scrutiny”—i.e., the court where the executive-branch attorney files pleadings—may impose sanctions or other disciplinary measures against an executive-branch attorney for any legal or ethical violations by that attorney.
This ruling will have little impact on most Texas prosecutors because county and district attorneys (and their assistant attorneys) are judicial-branch officers—not executive, like the Attorney General. Compare Tex. Const. art. V, § 21, with Tex. Const. art. IV, § 22. Thus, if a county or district attorney (or his or her assistant attorney) is alleged to have violated the Disciplinary Rules of Professional Conduct, the Commission may still “collaterally” impose discipline over that fellow judicial officer via the grievance process without interfering with another branch of government and violating the separation-of-powers doctrine.
In re Elhindi
No. 23-1040 12/31/24
Issue:
Can a trial judge order a litigant to produce through discovery a video that allegedly contains child sexual abuse material (CSAM) without first ascertaining whether the video is CSAM or permitting law enforcement to make such a determination?
Holding:
No. The trial court erred by compelling production of the video without first determining its nature or allowing law enforcement to do so, thereby risking harm to the alleged minor depicted on the video and arguably ordering the litigant to violate criminal law regarding distribution of CSAM. “The trial court’s refusal to delay discovery for further inspection elevated the immediate production of a peripherally relevant video over an undue risk to the alleged minor. The ‘burden’ of the trial court’s order requiring immediate production ‘outweighs its likely benefit.’” The Court conditionally granted mandamus and directed the trial court to modify its discovery order to allow Elhindi to provide the video to the FBI and receive a CSAM determination before compelling its production through discovery. Read opinion.
Commentary:
Here, the Court reiterates the prudent principle that “[a] trial court must determine whether discoverable material is protected before ordering production because ‘once the matter has been disclosed, it cannot be retracted or otherwise protected.’” This principle applies to any type of evidence that could be sensitive in nature and thus require special treatment, not just CSAM (e.g., information protected by privilege, such as attorney work product; confidential information related to law enforcement disciplinary proceedings; confidential information related to child protective services investigations; etc.). If a trial judge is trying to force a prosecutor to disclose sensitive evidence or information before the court (or another judicial body or law enforcement agency) reviews the material and determines whether protection is indeed appropriate, remember this case and the fact that mandamus relief might be available to prevent the trial court from ordering production or discovery beyond permissible bounds.
Texas Courts of Appeals
Jones v. State
No. 13-23-0196-CR 12/19/24
Issue:
Can evidence of impaired driving that does not rise to the level of intoxication be sufficient to show recklessness to support a manslaughter charge?
Holding:
Yes. Joining the conclusions of four other courts of appeals, the Court held that “until the Texas Court of Criminal Appeals directs us otherwise, it is entirely possible for a jury, without being inconsistent, to simultaneously find that the State failed to prove intoxication beyond a reasonable doubt but that a driver’s consumption of alcohol was nevertheless a contributing fact that shows recklessness.” Read opinion.
Commentary:
The defendant in this case was charged with intoxication manslaughter and manslaughter (which, as the first part of the opinion explains, the State is entitled to do). These two crimes are considered the same for double-jeopardy purposes when they arise from the same incident, although one conviction can result from this sort of prosecution. The jury acquitted the defendant of intoxication manslaughter, but found him guilty of manslaughter, which was premised upon the theory that the defendant acted recklessly by driving under the influence of alcohol. The appellate court explained that these are not inconsistent verdicts because the jury could have rationally determined that the defendant’s consumption of alcohol prior to driving was a component of the conduct that established the defendant’s recklessness, even if the jury declined to find that the defendant was legally intoxicated. Thus, this case serves as another great example of when it might be prudent to present multiple charges or counts (as well as any alternative manners and means that might apply) when they are supported by the evidence.
Also, it is worth noting that, in reaching its conclusions, the appellate court conducted a proper, thorough analysis and effectively referenced other appellate courts that have similarly decided the same issues. So far it seems that the Court of Criminal Appeals has refused discretionary review of such matters, and you should probably expect a petition for discretionary review by the defendant here to be likewise refused.
Alston v. State
No. 07-24-00253-CR 12/19/24
Issue:
Is a trial court required to conduct an extensive on-the-record inquiry into a defendant’s ability to pay fees and costs?
Holding:
No. Code of Criminal Procedure Article 42.15(a-1) does not dictate the nature or extent of the inquiry required for the trial court to determine a defendant’s ability to pay fees and costs, and the Court noted it had found no Texas cases addressing the issue of the sufficiency of the inquiry required by Article 42.15. Read opinion.
Commentary:
In this case, immediately after imposing sentence, the trial court asked the defendant: “In regards to your court costs and fees, do you have the ability to pay those amounts up front today?” The trial court also asked the defendant if he would be able to repay costs and fees upon his release. Applying the common usage of the word “inquire”—which is not defined by the Legislature or statute, and does not have a particular technical meaning—the appellate court affirmed that the trial court’s questions constituted a sufficient “inquiry” to fulfil the mandate of Article 42.15(a-1). Accordingly, remind the trial judge to conduct an ability-to-pay inquiry on the record during or immediately after imposing sentence, but also advise the judge that this inquiry need not contain magic words or be especially exhaustive.
Imminent Code of Criminal Procedure changes
The Texas Legislative Council’s ongoing code revision project made significant changes to five chapters of the Code of Criminal Procedure that become effective January 1, 2025. Chapters 2 (General Duties of Officers), 13 (Venue), 31 (Change of Venue), 45 (Justice and Municipal Courts), and 55 (Expunction of Criminal Records) have been updated with the goal of making them more logical and coherent without intending any substantive changes. Please click here for the only book that summarizes all the changes.