U.S. Supreme Court
Las Americas Immigrant Advocacy Center, et al. v. McCraw
No. 23A815 3/12/24
The U.S. Supreme Court has extended its stay to March 18 in a case considering the enforceability of immigration laws passed by the 88th Texas Legislature in its 4th Special Session of 2023. Although the provisions of SB 4, dealing with “illegal entry into or illegal presence in this state by a person who is an alien,” were set to take effect on March 5, 2024, the enforcement of those new laws is contingent upon the resolution of this (and other) federal litigation.
5th U.S. Circuit Court of Appeals
Free Speech Coalition, et al. v. Paxton
No. 23-50627 3/7/24
Issue:
Do regulations imposed on pornographic websites by HB 1181 in 2023—requiring the websites to verify the age of their visitors and to display health warnings about the effects of consumption of pornography—violate the 1st Amendment?
Holding:
No as to the visitors’ ages; yes as to the health warnings. Under the “rational-basis” standard of review, the age-verification requirement is rationally related to the government’s legitimate interest in preventing minors’ access to pornography. The laws created by HB 1181 (Tex. Civil Prac. & Rem. Code §§129B.001, et seq.) also do not pre-empt the federal Communications Decency Act, 47 U.S.C. §230. But the 5th Circuit upheld an injunction against the law in regard to the health warnings, concluding it unconstitutionally compels the pornographic websites’ speech. Read opinion.
Higginbotham (dissenting and concurring):
“In my view, H.B. 1181 is subject to strict scrutiny [rather than rational-basis standard of review], and finding no error in the district court’s factual findings, I would affirm and allow the parties to develop the factual record in the proper forum—trial.”
Commentary:
This opinion should largely be of interest to appellate practitioners, or those who specialize or have particular interest in First Amendment issues. If you are in that category, note that in reaching its conclusion as to the first aspect of the case (age-verification requirement), the majority repeatedly explains that the precedent of the United States Supreme Court in Ginsberg v. New York, 390 U.S. 629 (1968), remains valid and binding. Per Ginsberg, the regulation of the distribution to minors of speech obscene for minors is subject to only rational-basis review, not the more stringent strict-scrutiny analysis ordinarily used to assess the viability of content-based restrictions of speech. The question of which standard applies is the central issue here and the primary sticking point between the majority and the dissent. While there is a definite possibility that HB 1181 could fail the strict-scrutiny test—though the majority specifically declined to express any opinion on that matter—the majority’s distinction of Ashcroft II, Playboy, and other cases, and application of the strict-scrutiny-rule exception that Ginsberg creates, appear to be sound.
Regarding the second aspect of the case (compelled warnings), the core debate again centered on the appropriate standard of review to apply—strict scrutiny or some form of intermediate scrutiny. In reaching its conclusion favoring the district court’s preliminary injunction as to this matter, the court determined that a form of intermediate scrutiny applies, under Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557 (1980), and that Texas failed to meet its burden under that analysis.
Further litigation in the United States Supreme Court will surely follow, however, where we might get final, definitive answers on which standards apply in these circumstances, as well as on the merits of the First Amendment issues presented.
Texas Courts of Appeals
Starks v. State
No. 11-22-00354-CR 3/7/24
Issue:
Is the United States Postal Service a “common carrier or delivery service” under the mail theft statute, Penal Code §31.20?
Holding:
Yes. The Court noted that the defendant did not explain why USPS is not a delivery service but simply asserted that it was not. “Irrespective of this argument, [the defendant] misinterprets the intent of Section 31.20. As we have explained, nothing in the text of Section 31.20 reasonably excludes the USPS from its scope—it is undoubtedly a delivery service within the common, ordinary meaning of that phrase.” Read opinion.
Commentary:
Applying the basic tenets of statutory construction—which required analysis of the plain meaning of “delivery service,” given that §31.20 does not define the phrase—the appellate court logically concludes that the United States Postal Service is, indeed, a mail delivery service for purposes of the statute (jokes about USPS delivery times and standards which cast doubt on this premise purposefully omitted). Though this case is the first to address this issue, the appellate court’s brief-but-thorough analysis is unlikely to attract any unfavorable attention by the Court of Criminal Appeals.
Texas Attorney General Opinion
KP-0460 3/8/24
Issue:
Is the refund of court costs required by Health & Safety Code §571.018(j) limited to patients who are committed to a mental health facility?
Conclusion:
No. Nothing in §571.018(h) or (j) limits the scope of §571.018(j) to only court costs for individuals who have been committed. Refunds under §571.018(j) are not limited to only those hearings or proceedings involving commitment. Read opinion.
Requested by:
Chair Charles Perry, Senate Committee on Water, Agriculture, & Rural Affairs
TDCAA executive director search is underway
Rob Kepple will be retiring at the end of the year, and the TDCAA Board of Directors has formed a search committee to help select the new executive director. As part of the process, TDCAA members should keep an eye on their email for a short survey coming next week. The survey will give all members currently working in a prosecutor’s office a chance to offer valuable input on the selection process, so please take the time to complete the survey when it comes your way!
Domestic Violence Resource Prosecutor
The Texas District and County Attorneys Association is pleased to announce the creation of a new position: Domestic Violence Resource Prosecutor (DVRP). Patterned after the successful Traffic Safety Resource Prosecutor position (which provides training and support for prosecutors handling intoxicated driving cases), the DVRP will be responsible for training and technical assistance to Texas prosecutors and law enforcement personnel around the state. For more information, see the job posting here.