Texas Supreme Court
Durden v. Shahan, et al.
Nos. 21- 1003, 21-1017, 21-1018 12/30/22
Issue:
Does a county attorney have authority to initiate a Texas Open Meetings Act (TOMA) suit in the name of the State of Texas?
Holding:
No. The Supreme Court ruled that a county attorney must have statutory authority to file a suit on behalf of the State of Texas, and therefore affirmed the court of appeals’ dismissal of the county attorney’s Texas Open Meeting Act suits. The “authority to represent the state … does not necessarily include the authority to independently decide whether to institute a suit on the state’s behalf. … The Legislature must provide that authority by statute.” The Court further found that “nothing in the TOMA or the Code Construction Act [supports] the notion that the state itself qualifies as an ‘interested person.’” Read opinion.
Commentary:
This case stems from a dispute over the Kinney County Attorney’s salary, which the Kinney County Commissioner’s Court reduced. The Kinney County Attorney protested this reduction by filing three separate lawsuits in his official capacity, as a representative of the State of Texas. Notably, though, none of these suits explicitly mentioned or included the county attorney in his individual capacity or were filed on behalf of a particular governmental subdivision or agency. If the suits had been (rather than being filed on behalf of the State of Texas, itself), the outcome here might have been different.
5th Circuit Court of Appeals
Andrews, et al. v. McCraw, et al.
No. 22-10898 12/20/22
Issue:
May Texas ban 18- to 20-year-olds from possessing handguns or being issued licenses to carry concealed handguns?
Update:
In August, a Texas federal district court held that the Second Amendment prohibits Texas from banning 18- to 20-year-olds from possessing handguns or being issued licenses to carry concealed handguns through Penal Code §46.02(a) and Government Code §§411.172(a)(2), (g), (h), and (i). (Read summary of district court opinion.) The Director of the Texas Department of Public Safety and other defendants appealed the decision to the 5th Circuit Court of Appeals. The federal district court’s 8/25/22 opinion enjoined enforcement of Texas’ statutory scheme in the Penal Code and Government Code statutes but stayed the injunction for the duration of the appellate process. (Read district court opinion.) On 12/20/22, however, the defendants filed an unopposed motion to withdraw their appeal, and on 12/21/22, the 5th Circuit issued an order granting the motion to dismiss the appeal. thereby ending the appellate process. Read 5th Circuit order.
Commentary:
By withdrawing their appeal, the defendants have accepted that the federal district court’s injunction in this case will become permanent. However, simply because the defendants lost this “battle” doesn’t mean that the “war” concerning this issue is over. Rather, you might anticipate that the defendants will seek a legislative workaround by proposing changes to the applicable statutes that would bring them in line with the SCOTUS’s opinion in Bruen and the federal district court’s opinion, and, thus, allow them to pass constitutional muster in terms of the Second Amendment. Again, stay tuned.
Texas Courts of Appeals
Johnson v. State
No. 06-22-00028-CR 12/22/22
Issue:
Must a defendant who is convicted of attempting to leave the scene of the collision without fulfilling his statutory duties under Transportation Code §550.023 pay restitution to the other driver when the State has not proved the crash caused the damage to the other vehicle?
Holding:
No. The trial court erred in awarding $10,000 in restitution for damages to the other vehicle when the State failed to show that the defendant’s offense, attempting to leave the scene of the collision without fulfilling his statutory duties, caused the damage to the truck. Read Opinion.
Commentary:
As this opinion acknowledges, there is a split in authority among at least four intermediate courts of appeals as to the question of how closely associated the defendant’s crime of conviction must be to the defendant’s conduct before restitution is appropriate. In the context of when the defendant caused a vehicle crash involving injuries, but was convicted of the offense of failure to stop and render aid, the Third Court of Appeals in Lerma v. State, 758 S.W.2d 383, 384 (Tex. App. — Austin 1988, no pet.)held that restitution was appropriate because “there was a real and essential connection between the injuries suffered by the victim and [the defendant’s] failure to stop and render aid: had there been no injuries, [the defendant’s] failure to stop would not have been a crime.” The Thirteen Court of Appeals followed suit in In re C.T., 43 S.W.3d 600, 603-04 (Tex. App. — Corpus Christi-Edinburg 2001, no pet.). Here, the Sixth Court of Appeals relies on a Fourteenth Court of Appeals opinion to reject Lerma and In re C.T., and conclude to the contrary—that restitution is improper under these facts. In light of this circuit split, you should expect that the State will file a petition for discretionary review by the Court of Criminal Appeals and that the CCA will be interested in weighing in. Ultimately, if the CCA sides with the Sixth and Fourteenth Courts of Appeals, you might also expect more charges for reckless driving to be filed in these scenarios to unquestionably tie defendants’ conduct in causing vehicle crashes to the losses suffered by injured persons or to damaged property as a result of the crashes.
Ex Parte Allen
No. 06-22-00133-CR 12/21/22
Issue:
Did the trial court abuse its discretion when it ordered, as a condition of bond, that the defendant have no contact with his wife of 37 years where uncontroverted evidence established that such contact was not a danger to the alleged victim or the community?
Holding:
Yes. The wife was not the victim of the defendant’s aggravated assault of his daughter’s abusive romantic partner, whom the defendant shot and wounded. The judge imposed the condition because the wife was a witness to the alleged offense, but the Court noted that she would not be required to testify at the trial. Furthermore, nothing in the record indicated that the defendant was likely to intimidate or harass his wife. Read Opinion.
Commentary:
This case serves as a reminder that, although trial courts enjoy broad discretion in setting bond amounts and conditions of bond, that discretion is not unlimited. If, as here, a trial court seeks to set a bond amount or impose a condition of bond that is particularly aimed at securing the safety of a victim of the offense or of the community, there must be evidence in the record that supports imposing that condition.
Texas Attorney General Opinion Requests
RQ 0493-KP 12/22/22
Issue:
Does the “safe haven” law in Family Code §262.301 authorize installation of newborn safety devices in municipally owned safe haven facilities in a city, or does it require a person-to-person transfer? Read opinion request.
Requested by:
Joe Gonzales, Bexar County Criminal District Attorney