Fifth Circuit Court of Appeals

Villarreal v. City of Laredo

No. 20-40359                                                  1/23/24

Issue:

Were officials entitled to qualified immunity in the plaintiff’s First and Fourth Amendment §1983 claims arising from the plaintiff’s arrest under §39.06(c) of the Penal Code (Misuse of Official Information)?

Holding:

Yes. Sitting en banc, the 16-judge court held 9–7 to affirm the lower court’s finding of qualified immunity for the defendants: the city of Laredo, Webb County, the District Attorney, an assistant district attorney, and multiple law enforcement officers. For a cognizable claim, the plaintiff had to overcome the qualified immunity of each individual and entity by showing that “(a) each defendant violated a constitutional right, and (b) the right at issue was ‘clearly established’ at the time of the alleged misconduct.” The majority held that the plaintiff failed to satisfy her burden on either prong. Members of the Webb County District Attorney’s Office had reviewed and advised law enforcement on the arrest warrants. The Court noted that the prosecutors’ participation “in the issuance of the warrants here was arguably outside their absolute prosecutorial immunity,” which “extends only to prosecutorial functions related to courtroom advocacy” but that they were entitled to qualified immunity. Read Opinion.

Dissent (Graves, J.):

“The majority would limit journalists who work the government beat to publicly disclosed documents and official press conferences, meaning they will only be able to report information the government chooses to share.”

Dissent (Higginson, J.):

“This court should not countenance the erosion of the First Amendment’s protection of citizen-journalists from intimidation by the government officials they seek to hold accountable in their reporting.”

Dissent (Willett, J.):

“If nothing else, today’s decision underscores a striking statutory double standard: Judges read out text that is plainly there, and read in text that is plainly not—both for the benefit of rights-violating officials. Whatever the operative language of §1983 says, or does not say, current judge-invented immunity doctrine seems hardwired—relentlessly so—to resolve these questions in one direction and one direction only” (emphasis in original).

Dissent (Ho, J.):

“There are a number of problems with the majority’s theory, but the simplest is this: It spells the end of the First Amendment. All the government would have to do is to enact some state statute or local ordinance forbidding some disfavored viewpoint—and then wait for a citizen to engage in that protected-yet-prohibited speech. The police would have ample probable cause for arrest under the Fourth Amendment. But it would be an indisputable violation of the First Amendment. Yet the majority would conclude that there is no First Amendment liability.”

Commentary:

This is a very closely divided decision dealing with the appropriateness of qualified immunity, which the United States Supreme Court likely will want to review. This is, however, not a decision on the actual unconstitutionality of §39.06(c) of the Texas Penal Code, either facially or as applied to the prospective defendant/citizen-journalist. The majority also did not decide whether the prosecutors in this case were entitled to “absolute” immunity. The majority assumed that qualified immunity was the appropriate standard here, impliedly agreeing with the proposition that participating in issuing arrest warrants falls outside the protection of absolute prosecutorial immunity. That is unfortunate (although probably in line with prevailing court decisions), but in most cases, qualified immunity is more than sufficient to protect a prosecutor—as it was in this case.

On the qualified immunity question, the majority faithfully followed controlling precedent. The prosecutors and others reasonably believed that there was probable cause to arrest the citizen-journalist for violating §39.06(c)—as all the elements of the statute were satisfied [page 17 of the majority opinion]—and §39.06(c) is not “obviously” unconstitutional [pages 19-20 of the majority opinion]. The citizen-journalist cited no case in which a court had held that a journalist could not be arrested for violating a statute that prohibited the solicitation and receipt or non-public information from the government for personal benefit [page 27 of the majority opinion]. This is a very important decision that may be reviewed further, but hopefully it will provide some guidance for prosecutors who are tasked—as part of their jobs—with approving of arrest warrants for initiating criminal charges against a defendant.

Texas Court of Criminal Appeals

Lewis v. State

No. PD-0564-23                                              1/31/24

Issue:

Can the Court of Criminal Appeals determine that the amount of bail set by a court of appeals was insufficient and increase the bond amount?

Holding:

Yes. Applying Articles 17.09 and 17.38 of the Code of Criminal Procedure, the Court determined that once the PDR was filed with the CCA, only the CCA had the authority to determine whether the bail on appeal is insufficient because the lower appellate court lost jurisdiction. Due to the defendant’s potential danger to the victim and community, the CCA increased the defendant’s bond from $120,000 to the State’s requested $500,000. Read opinion.

Commentary:

This is a great decision, and congratulations to the prosecutor(s) in this case for looking to Article 17.09, §3 to urge the state’s highest criminal court to provide sufficient bail for this particular case. This case provides additional support for prosecutors to rely upon Article 17.09, §3 to urge any judge to reconsider the appropriateness of a defendant’s bail in a case pending before that judge.

Texas Court of Appeals

Almeida v. State

No. 04-22-00669-CR                                      1/17/24

Issue:

Must a trial judge conduct an inquiry on the record regarding the defendant’s ability to pay a fine and court costs under Article 42.15(a-1) of the Code of Criminal Procedure?

Holding:

Perhaps. This case came to the appellate court as an Anders brief. After reviewing the record, the Court found that despite defense counsel’s assertion that there were no appealable issues, the defendant could appeal the trial court’s failure to inquire into the defendant’s ability to pay the fine and court costs as required by Article 42.15(a-1) (“a court shall inquire on the record whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs”). Under Article 42.15(a-2), a defendant may waive the inquiry, but the waiver must also be on the record. Here, the record is silent as to the inquiry or its waiver. Finding no authority on this issue from the CCA or any consensus from the other courts of appeals, the Court remanded the case to the trial court to have a new defense attorney appointed to brief this issue as well as any other arguable ground for appeal. Read opinion.

Commentary:

This is an Anders case, meaning that the court of appeals was required to conduct an independent review to determine if there was an arguable issue that the defendant could have raised. In those circumstances, this decision cannot be a holding on the merits of the question. Is this an issue that a court of appeals can address for the first time on appeal? Or is the defendant required to object to the judge’s failure to ask on the record about the defendant’s ability to pay fines and costs? Did the Legislature intend for all cases on appeal to be remanded back to the trial judge, so that an ability-to-pay inquiry can be conducted? Keep watch over this decision to determine how the courts will treat this issue.

Koury v. State

No. 03-22-00641-CR                                                     1/30/24

Issue:

Was it an abuse of discretion and a violation of Article 38.23(a) of the Code of Criminal Procedure for the trial court to admit the testimony of a SANE nurse who was unlicensed at the time she administered the victim’s SANE exam?

Holding:

No. The defendant lacks standing and cannot show how the victim’s treatment by an unlicensed nurse impacted the defendant’s rights. Furthermore, the occupational licensing statutes are unrelated to the purpose of Article 38.23(a), which is to protect the rights of criminal suspects from the unlawful collection of evidence in anticipation of trial. But the purpose of a SANE is for medical treatment and diagnosis, not the collection of evidence in anticipation of trial. “Thus, because [Occupations Code] §§301.251 and 301.301(b) are unconcerned with securing a criminal suspect’s rights against the gathering of evidence by law enforcement, violations of the statutes do not constitute violations of the law under Article 38.23(a).” Read opinion.

Commentary:

This is now another in a long line of decisions holding that not every violation of a “law” will necessarily lead to the exclusion of evidence allegedly obtained as a result of that violation. Rely on this decision—and the cases that it cites—when a defendant raises a non-traditional claim that a law was violated and that, therefore, evidence should be excluded as a result.

Announcement

The National Computer Forensics Institute is offering two different courses for prosecutors. The 5 day courses focus on digital evidence, computer forensics and social networks for state and local prosecutors. All costs associated with the course (including travel) are covered by the United States Secret Service. The dates for the courses are below and the deadline to apply is February 23, 2024.

Course Dates for Digital Evidence for Prosecutors (DEP):

June 24-28, 2024

July 15-19, 2024

August 19-23, 2024

September 23-27, 2024                                            

The application is accessed by clicking this secure link:  https://forms.office.com/r/WQJJqrzZ1q

Course Date for Advanced Digital Evidence for Prosecutors (ADEP):

 June 10-14, 2024

September 9-13, 2024 

The application is accessed by clicking this secure link:  https://forms.office.com/r/8n8n33zHPd

More information about the NCFI can be found at: www.ncfi.usss.gov