Texas Court of Criminal Appeals

In re University of Texas Medical Branch – Galveston

No. WR-91, 715-01                                                                         10/18/23

Issue:

Can a habeas court ex parte order a third party to provide brain imaging for a defendant?

Holding:

No. A court cannot ex parte order a third party to create evidence that does not yet exist. The Court reasoned this situation was analogous to an ex parte order for production of records from a third party in which mandamus relief was also granted. The Court restated, “There is no statutory or constitutional authorization for ex parte criminal discovery.” Read opinion.

Concurrence (Slaughter, J.):

“While I disagree with the Court that this case can be resolved solely by relying on the principle that ex parte orders are disfavored, and while I continue to believe that a habeas judge has implicit authority to order pre-application discovery under Article 11.071, I nevertheless agree that the habeas judge clearly lacked authority to compel UTMB to create evidence in the form of brain imaging.” Read concurrence.

Commentary:

This case did not involve a defense request for reimbursement of expert witness assistance from the hospital (a motion based upon Ake v. Oklahoma, 470 U.S. 68 (1986), which can be ex parte). The holding of the very brief opinion also did not thoroughly discuss the trial court’s authority to order a third party to create evidence. As noted in a footnote, the court has already held that a trial court does not have such authority. See In re State ex rel. Best, 616 S.W.3d 594 (Tex. Crim. App. 2021). This decision is largely about a trial court’s authority to issue an ex parte discovery order, and as such, the decision faithfully followed the court’s prior decision in In re City of Lubbock, 666 S.W.3d 546 (Tex. Crim. App. 2023). The defense wanted the hospital to create brain imaging for the defendant, which death penalty prosecutors should be familiar with. This will not likely be the last time that the court will have to issue a decision on a trial court’s ex parte discovery orders or brain imaging for a death penalty defendant.

Texas Court of Appeals

State v. Gonzales

Nos. 05-22-01154-CR and -01155CR                        10/12/23

Issue:

Did the passage of the Texas Hemp Farming Act (2019) preclude officers from relying on the odor of marijuana in justifying a warrantless search based on probable cause under the automobile exception because hemp and marijuana come from the same plant (Cannabis sativa L.) and can give off the same smell and appearance?

Holding:

No. The appellate court reversed the trial court’s orders granting the defense’s motions to suppress and remanded the cases for further proceedings. The appellate court noted that the plain language of the Texas Hemp Farming Act interferes neither with laws regulating marijuana nor the probable cause standard used by law enforcement. Officers may rely on reasonably trustworthy facts and circumstances in establishing probable cause and “are not required to be absolutely certain” that the substance in question is marijuana instead of hemp. Read opinion.

Commentary:

As a matter of Fourth Amendment (or Article 38.23) law, this decision is not particularly controversial. An officer does not lose probable cause to search merely because the defendant might have an innocent explanation. In reaching its holding, the court of appeals relied upon one of its prior unpublished decisions, and it followed the holdings of several other appellate courts across the nation that have held that the odor of marijuana still provides probable cause to search, even though similarly-smelling hemp might be legal (see page 12 of the court’s opinion). This decision should be particularly helpful to prosecutors (and law enforcement) because it was a State’s appeal, in which the standard of review is tilted slightly in the defendant’s favor.

Texas Attorney General Opinion

KP-0445                                               10/11/23

Issue:

Is Local Government Code §120.002 violated by transferring a deputy constable from the constable’s office to another county department?

Conclusion:

Local Government Code §120.002 calls for a county election if the county adopts a budget that in part reduces the funding of a law enforcement agency “with primary responsibility for policing, criminal investigation, and answering calls for service.” While a constable usually engages in policing, criminal investigation, and answering calls for service, it would need to be determined whether that was a constable’s “primary responsibility.”

The question whether Local Government Code §120.002 is violated by transferring a deputy constable from the constable’s office to another county department is a question that cannot be determined in an Attorney General opinion. Read opinion.