Articles Posted in Texas Laws

Nothing excites Texans like football (especially Red Raider football). Nothing excites the Texas legislature like creating a new criminal law for every perceived societal problem. Combine the two and you get…

32.441. ILLEGAL RECRUITMENT OF AN ATHLETE.

(a) A person commits an offense if, without the consent of the governing body or a designee of the governing body of an institution of higher education, the person intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another on an agreement or understanding that the benefit will influence the conduct of the person in enrolling in the institution and participating in intercollegiate athletics.

Thanks to the TDCAA website for posting this memo from CPS. Recently, CPS was sued by two parents in Fort Bend County for numerous constitutional violations.

The 5th Circuit Court of Appeals held that CPS could be liable to future litigants (under a 1983 claim). Normally, the government grants itself immunity from lawsuits. However, the 5th Circuit held that CPS may not have immunity if they continue to violate the constitutional rights of parents. Rightfully, CPS is scared about the possibility of massive judgments against them. Hence this urgent memo to employees.

From the CPS memo-

On July 28, 2008, a federal appeals court with authority over Texas handed down a decision in a case that will be referred to as “the Gates case.” The decision is binding on Texas and because it involves federal constitutional rights, supersedes anything to the contrary in Texas law, or DFPS policy or practice.

I. INTRODUCTION
The Gates case is significant for two key reasons. First, it sets out a new standard that will require DFPS to obtain a court order prior to removal in a much larger proportion of our cases and affects whether we can transport or enter a home. Second, it is significant because it clarifies that if the standard is not followed, staff could be sued as individuals and lose qualified immunity, i.e., be responsible for monetary damages.

CPS may consider this a “new” standard. I disagree. The Constitution has been around longer than CPS. CPS shouldn’t be surprised that it applies to them.

Consent Searches
Just like the police will ask for consent to search your car, CPS will ask for consent to search your home. This memo reminds CPS that they can not invade private residences without a court order, consent, or emergency.

Parents, read this section and learn these rules. If CPS wants to enter your home it is not to help you. Call an attorney to protect your rights.

I

V. ENTERING AND REMAINING IN A HOME
A. SUMMARY
As with removals, in order to gain entry into a home for the purpose of a CPS investigation, we must have one of the following: 1) exigent circumstances, 2) consent, or 3) a court order, but the Gates ruling provided additional explanation concerning exigent circumstances and consent that will affect our practices.

NOTE: even if we do have exigent circumstances to enter a home, it may be more appropriate for safety reasons to call law enforcement to gain entry.

Current Practice: CPS enters a family’s home only if we have exigent circumstances, consent, or a court order. CPS does not always ensure consent is specific to our investigators. A court order in aid of investigation is rarely utilized.

New Practice: As with removals, exigent circumstances are present only where there is immediate danger to a child in the home, i.e. life or limb is in immediate jeopardy. Consent must be clear, unequivocal, voluntary and given specifically to CPS, as opposed to law enforcement. We will likely increase the use of court orders in aid of investigation.

One sentence sticks out. CPS will increase the use of court orders. That is a great idea. Instead of taking children first, and then going to court; CPS should actually investigate, then go to court for a removal. Of course, if this turns into a rubber stamp situation like DWI blood search warrants, then again there will be no justice.

More on the consent guidelines below the fold….

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I’m often asked by clients if a case is too old to go to court, or if there case is so old it must be dismissed. This is understandable. Many defendants are arrested and then wait months for their first court date. For example, the Kaufman DA (wisely) tests all drugs at the DPS drug lag before filing a case. There is a dope backlog at the DPS lab in Garland (onward Prohibition!). That means a wait of 3-6 months for drug cases to be filed after arrest.

What these clients are asking is if the Statute of Limitations has run in their case. (There are also speedy trial implications but that’s beyond the scope of this post).

What is the Statute of Limitations?

The Court of Criminal Appeal’s web site shows that an order deleting the special rule of attorney client privileges in criminal cases was signed on September 1st. (Click on the Order Amending Texas Rules of Evidence and Appellate Procedure Effective September 1, 2008 [pdf]).

This would be a surprise since in July COCA promised to table this deletion for at least 6 months. However, I can’t tell if COCA really deleted this important protection, or merely forget to update their website. Only time will tell. I tried checking the Texas Register with no luck.

To recap- earlier this year COCA proposed to delete this rule that has protected Texans since 1856. Texas Rule of Evidence 503(b)(2)

Deferred adjudication is a type of probation that does not result in a final conviction. For example, in Kaufman County many defendants received plea bargain offers of deferred adjudication probation for misdemeanor marijuana cases, usually for a period of 6-12 months.

In order to accept a deferred adjudication the defendant pleads guilty. However, the judge will state that she is “withholding a finding of guilt” even though she has enough evidence (your guilty plea) to find you guilty.

If these defendants successfully complete probation, then they are never convicted of possession. Avoiding a final conviction has many advantages. These defendants would lose their college financial aid eligibility with a drug conviction. However, there are some common misconceptions about the benefits of deferred.

A reader wants to know about “official oppression.” Texas does have a law against official oppression. That sounds better than it is. Prosecutions are extremely rare. I’ve never seen one.

What is OO? If the police pull you over and offer to let you go for sexual favors. Or if the game warden illegally keeps you from voting.

It doesn’t have to involve law enforcement, just a “public servant acting under color of his office.” From the penal code.

If you hire me or not I want you to know what to expect and what your options are.

Unfortunately, education also includes breaking bad news to potential clients. I have had a few inquiries about appeals only to inform the defendant and/or the defendant’s family that there will be no appeal because deadlines have been missed.

To avoid this in the future here is a quick guide to state criminal appeal deadlines.