5th Circuit Court of Appeals
Netflix v Babin
No. 22-40786 12/18/23
Issue:
Can a federal district court enjoin a state district attorney from pursuing indictments under Penal Code §§43.262 and 43.25 against Netflix based on a movie Netflix provided on its streaming subscription service?
Holding:
Yes. The 5th Circuit affirmed the Eastern District’s findings (read Eastern District’s opinion here). The 5th Circuit upheld the injunction prohibiting the state district attorney from prosecuting Netflix under §43.262 (Possession or Promotion of Lewd Visual Material Depicting Child) for streaming the French movie Cuties. The Court concluded that the district attorney’s decisions to dismiss without prejudice previous charges under §43.262 and file a policy statement stating that his office would not prosecute any offense under that section until §43.262 was found to be constitutional were insufficient to make Netflix’s First Amendment claims moot. A threat of prosecution—not necessarily a pending prosecution—can give a federal court jurisdiction to consider granting an injunction. The 5th Circuit also held that the Younger abstention did not bar the court from granting the injunction because there was a substantial likelihood Netflix would prevail on its First Amendment claims that §43.25 (Sexual Performance by a Child) is unconstitutional as applied. Read Opinion.
Commentary:
This decision dealt with the validity of a preliminary injunction, so the final resolution of this case has not yet come. This decision also dealt with whether federal courts should abstain in involving themselves in a state court prosecution. What is important for local Texas prosecutors is that this decision did not directly deal with the constitutionality of §43.262 under the First Amendment. That issue will be dealt with by the Court of Criminal Appeals when it decides Ex parte Lowry, which is currently pending before the Court. In Ex parte Lowry, the First Court of Appeals held §43.262 to be unconstitutional on its face (in all of its possible applications). The federal court’s decision in this case also did not directly answer the question of whether §43.25 was unconstitutional as applied to the defendant/corporation. Texas courts have routinely upheld the constitutionality of that statute, and it is not clear whether the ultimate decision in this case will have any adverse impact upon those Texas decisions. While the final resolution of this case may include a holding on the constitutionality of §43.25 as applied, the immediate holding in this opinion turns on whether the prosecutor acted in bad faith in prosecuting the defendant/corporation. That is a holding to which prosecutors should pay especially careful attention, but it is also one that may be confined to the unique facts of the case.
Texas Court of Criminal Appeals
Johnson v. State
Nos. PD-0055-23 & -0056-23 12/20/23
Issue:
May a court order restitution for an offense that did not itself cause damage to property?
Holding:
No. The defendant damaged property in a collision and was convicted of failure to provide information after the collision (Transportation Code §§550.022, .023, and .025). “It is not enough to show that the defendant caused the damage; the State must show that the offense for which the defendant was convicted caused the damage. And there is no evidence of that in this case.” Read opinion.
Dissent (Newell, J., joined by Walker, J.):
“The existence of a collision is the focus of the offense. Without a collision, the State cannot charge a motorist for failing to provide contact information because there is no way for the State to prove that the motorist committed an offense for failing to provide contact information after the collision.” Read dissent.
Commentary:
This decision essentially reaffirms what the Fourteenth Court of Appeals held in their 2005 decision in Bailey v. State. The holding is based entirely upon a construction of Art. 42.037 of the Code of Criminal Procedure, which allows for restitution when the defendant’s offense causes loss, destruction, damage, or injury. The offenses involved in these statutes typically do not cause any of that because the offense usually happens after the damage has been done. In other words, the defendant’s act of leaving the scene of an accident usually does not cause any additional damage. The opinion does allow for restitution if a victim’s injuries were worsened by the defendant’s commission of the offense or if restitution is made a condition of community supervision. After this decision, one would expect defendants to object to restitution orders in these types of cases.
Texas Courts of Appeals
State v Hatter
No. 14-20-00496-CR 12/14/23
Issue:
Can the promise of dismissal constitute an enforceable plea bargain agreement?
Holding:
Yes. Applying general contract law principles, the majority concluded that a clearly delineated agreement existed between the State and defendant, and the defendant had a right to ask for specific performance of the plea bargain. Read opinion.
Dissent (Jewell, J.):
According to the dissent, there was no evidence of mutual promises or an exchange of any kind between the parties. While a plea offer was made by the State to dismiss a felony charge in exchange for the defendant pleading guilty to two misdemeanor charges, “there exists no evidence that the defendant ever accepted the offer, promised to plead guilty to either misdemeanor charge, or in fact pleaded guilty to any charge.” Thus, the State should have been entitled to refile the felony charge without violating a nonexistent plea bargain. Read dissent.
Commentary:
In this case, the court of appeals had initially held that the prosecutor’s promise constituted an immunity agreement, but the Court of Criminal Appeals overturned that decision. The high court may want to review this most recent holding that an enforceable plea bargain agreement existed between the defendant and the State. It is not at all clear from facts presented in this opinion that the trial judge had approved the purported plea bargain agreement between the parties, so as to make it enforceable against the State. Based upon what is in the opinion, it seems that the trial judge impliedly approved the agreement, but only retroactively in ruling on the defendant’s motion to dismiss.
Texas Attorney General Opinion Requests
RQ-0525-KP 12/15/23
Issue:
May low-THC cannabis inventory be transported between department-approved locations by a licensed dispensing organization before a prescription is issued and filled under the Compassionate Use Act? Read Request for Opinion.
Requested by:
Senator Charles Schwertner, Chair, Senate Committee on Business & Commerce
RQ-0524-KP 12/15/23
Issue:
Are certain actions (including acts related to open meetings and vacancies of board positions) of the Ector County Utility District Board of Directors legal? Read Request for Opinion.
Requested by:
Tristan Marquez, Ector County Auditor
Last Summaries Email for 2023
This is the last Weekly Case Summaries email of the year. The TDCAA offices will be closed the week of December 25–30 and reopen on January 2, 2024. The next issue of the case summaries will be published on Jan. 5, 2024. We hope you and your families have a wonderful holiday season!