Texas Courts of Appeals
State v. Garcia
No. 14-20-00801-CR 8/23/22
Issue:
Is credit for time served part of a sentence that an appellate court can consider?
Holding:
No. Credit for time served is not part of a sentence but instead a fact affecting the sentence. While the appeals court agreed with the State that the trial judge was not authorized to give credit for non-custody time, Code of Criminal Procedure Article 44.01(b) does not give an appeals court jurisdiction to consider things that are not part of a sentence. The fact that credit for time served must be included in the judgment does not make it part of the sentence. The court noted that rather than appealing, the State should have sought a writ of mandamus at the trial court level to compel a ruling on its motion to modify or correct the judgment. Read opinion.
Concurrence (Spain, J.):
The concurrence notes that there are some errors that can be made in a final judgment that cannot be reviewed or corrected on appeal. “The appeal by the State, here, further underscores the need for reform of the procedures for rendering criminal judgments. … With the current complexity of criminal judgments, a criminal defendant and the State should have the opportunity to review the judgment before the appellate and post-trial time periods begin to run.” Read concurrence.
Commentary:
The State is permitted to appeal in only the specific circumstances enumerated in Article 44.01, including on the grounds that a sentence is illegal, per Article 44.01(b). If the State attempts to appeal a trial court’s order or other action that does not fall within the bounds of Article 44.01, an appellate court will not have jurisdiction over the matter and will dismiss the appeal. The State is entitled to petition the Texas Court of Criminal Appeals for discretionary review as to whether the State has the right to appeal and, thus, whether the lower appellate court has jurisdiction. The State may attempt to do so in this case and it is possible that the Court of Criminal Appeals may wish to weigh-in here, given the relative novelty of this jurisdictional question, as applied to these particular circumstances (i.e., when the trial court awarded more jail credit than the defendant actually had, transforming a to-do jail sentence into time-served jail sentence).
While the direct-appeal status of this case remains pending, keep in mind that the Fourteenth Court of Appeals suggests that, in the future, the State should seek a writ of mandamus to compel the trial court to rule on the State’s motion to modify or correct the judgment as a mode of relief in this scenario.
Texas Federal District Court
Firearms Policy Coalition, et al v. McCraw, et al.
No. 4:21-cv-1245-P 8/25/22
Issue:
May Texas ban 18- to 20-year-olds from possessing handguns or being issued licenses to carry concealed handguns?
Holding:
No. Penal Code §46.02(a) and Government Code §§411.172(a)(2), (g), (h), (i), which prohibit 18-to-20-year-olds from carrying handguns outside the home based solely on their age, violate the Second Amendment. The Second Amendment is not limited to only those in the militia, but it must protect at least the pool of individuals from whom the militia would be drawn, citing N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S.Ct. 2111, 2122 (2022). The Court enjoined application of the Texas laws for 30 days, pending a defense appeal to the 5th Circuit. Read opinion.
Commentary:
Expect the defendants to appeal this decision to the 5th Circuit Court of Appeals. The 5th Circuit is almost certain to grant review, given that the federal district court distinguishes (and declines to follow) prior 5th Circuit precedent, particularly Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185 (5th Cir. 2012), which was only partially abrogated by the SCOTUS’s recent decision in N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen. The 5th Circuit may have a different opinion as to whether the Texas firearm statutes at issue are “analogous enough” to be acceptable to pass constitutional muster, but ultimately this question may end up being resolved by the SCOTUS as a test of the application and extension of Bruen. Stay tuned.
Texas Attorney General Opinion Requests
RQ-0476 8/26/22
Issue:
May a magistrate appointed by a judge or group of judges under Gov’t Code Chapter 54 simultaneously serve as staff legal counsel for the appointing judge or judges and for the other appointed magistrates? Read opinion request.
Requested by:
S. Renee Tidwell, Tarrant County Auditor