Texas Court of Criminal Appeals

Ex parte Mosquera

No. WR-96,247-01                  3/5/25

Issue:

Is the defendant entitled to habeas relief and a new punishment hearing when his defense counsel secured for him the opportunity to move for shock probation without opposition from the State but failed to follow through and actually file a motion for shock probation?

Holding:

Yes. Because the defense attorney’s advice and representation prior to entry of the defendant’s plea was competent, the defendant’s plea was not involuntary due to ineffective assistance of counsel. However, the defense attorney was constitutionally ineffective for failing to file the motion for shock probation. Read opinion.

Commentary:

For the appellate and writs practitioners in the audience, this case serves as a good reminder that a defendant’s plea will not be retroactively deemed involuntary if defense counsel fails to follow through with his own obligation or take a particular action after the defendant enters his plea. In other words, with an involuntary-plea claim premised upon an allegation of ineffective assistance of counsel, an appellate court will look only at defense counsel’s performance or advice prior to the plea. If the alleged deficient representation occurred after the plea, “involuntary plea is not the proper claim to be pursued or the proper rationale for granting relief.” Instead, the defendant should pursue a conventional ineffective-assistance-of-counsel claim, as occurred here.

Texas Attorney General Opinions

KP-0486                      3/5/25

Issue:

Does a county using certain grant funds to hire an administrative assistant to work in a dual role for the county judge and the prosecuting attorney constitutes a conflict of interest?

Conclusion:

Neither the dual-officeholding prohibition in Article XVI, §40(a) of the Texas Constitution nor the common-law incompatibility doctrine prohibits one person from working in a “dual role” as an administrative assistant for a county judge and a prosecuting attorney. 

The question whether the dual employment results in a violation of the Disciplinary Rules of Professional Conduct for attorneys, the Code of Judicial Conduct for judges, Due Process, or a local policy or regulation requires the resolution of fact questions, which is beyond the scope of an Attorney General opinion. Read opinion.

Requested by:

Laura Lee Brock, Clay County Auditor

KP-0485                      3/5/25

Issue:

What rights does a mentally incapacitated person who is a ward of a guardianship have to represent him/herself in a civil or criminal matter?

Conclusion:

The Sixth Amendment to the United States Constitution provides criminal defendants a limited right to self-representation and its assertion requires waiver of the right to assistance of counsel. While a court with probate jurisdiction must determine whether a ward is mentally incapacitated, a ward seeking to proceed pro se may assert the right to self-representation in the trial court conducting criminal proceedings. The trial court then determines whether the ward is competent to conduct trial proceedings on his own behalf and whether waiver of the right to counsel is voluntary, knowing, and intelligent. (Note that the opinion also discusses the self-representation rights in a civil/probate context, which is not included in this summary.) Read opinion.

Requested by:

Sen. Donna Campbell, Chair of the Senate Committee on Nominations

Texas Attorney General Opinion Request

RQ-0584-KP                2/28/25

Issue:

Are automated traffic-enforcement systems legal for issuing speeding citations? Read opinion request.

Requested by:

Joe Gonzales, Bexar County Criminal District Attorney