LEGAL OPINIONS

5^TH CIRCUIT:
Court Rules - Former Inmate Can Sue Texas Officials For Rights Violations:

The 5th Circuit Court of Appeals unanimously ruled Roderick Johnson, a former Texas inmate, who alleges prison officials deliberately denied him protection from prison gang members, who repeatedly raped, assaulted, and threatened him with violence and death, can move ahead with this lawsuit against the prison officials. The prison officials had argued they could not be sued because they were acting as public employees and had no reason to believe they were violating Johnson's Constitutional rights. However, the appeals court ruled it is the responsibility of prison officials to protect inmates from violence at the hands of fellow prisoners. Johnson is represented by the American Civil Liberties Union lawyers.

Court Rules - A Life Sentence in Texas Can Be Life There is No Mandatory Release on Life Sentence

Fifth Circuit Court of Appeals on October 2, 2002, 306 F.3rd 277 Arnold v. Cockrell stated "it is mathematically impossible to determine a mandatory supervision release date on a life sentence because the calendar time served plus any accrued good conduct time will never add up to life." While this does not address the arguments presented in the Galveston cases it reflects the way the 5^th Circuit will probably rule when it addresses the Galveston cases. This ruling indicates a life sentence can and will be just that, life in prison, unless the inmate, through his attorney, convinces the Board to release the inmate to parole. This also means when a person is at the trial stage, the trial attorney had better know the laws and the evidence of the case he is representing a client on. The risk of receiving a life sentence is now more than a threat. A good, competent trial attorney is crucial, especially with the rulings from the Court of Criminal Appeals of Texas on the harmless error doctrine.

In Ex Parte Lloyd Edward Franks, No. 74,123, delivered on December 19, 2001 the court ruled in Article 42.12, Section 15(c),V.A.C.C.P., which stated "shall be released to mandatory supervision when the calendar time served plus any accrued good conduct time equals the maximum term to which he was sentenced." It was noted that this law had not substantively changed since 1981. They ruled "under a literal reading of this law, it is mathematically impossible to determine a mandatory supervision release date on a life sentence because the calendar time served plus any accrued good conduct time will never add up to life." Therefore, at the present time any inmate who has received a sentence greater than 60 years or life, the inmates only hope is to be released by the parole board. For those inmates serving a life sentence, hiring a very good parole attorney to enhance probability of release should be a very serious consideration.

TDCJ Can Make Inmates Work for Free

The 5^th Circuit Court of Appeals on July 7, 2006 in Loving v. Johnson quickly disposed of the argument prisoners should be paid minimum wage for working in prison under the Fair Labor Standards Act (FLSA)." People are not imprisoned for the purpose of enabling them to earn a living. The prison pays for their keep. If it puts them to work, it is to offset some of the costs of keeping them."

UNITED STATES SUPREME COURT:

In United States v. Booker and United States v. Fanfan in a very unusual opinion, the Supreme Court ruled the 1987 Federal Sentencing Guidelines were no longer mandatory, but merely advisory, though they recommended the courts attempt to follow the guidelines. In a second part of the opinion the court ruled that judges could not increase the sentence imposed on the defendant based on certain factors, unless those factors are weighed by a jury. This is a major case in criminal law, especially to defendants who may have pending federal cases. Now I and other attorneys who practice before the federal trial courts, will be able to argue and possibly receive considerably less time for their clients than would have been possible under the 1987 Federal Sentencing Guideline.

The Supreme Court of the United States in Samson v. California Decided June 19, 2006 held The Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. In other words if a police officer wants to stop a parolee and search him for no reason this is permissable,

TEXAS COURTS:

Time to File Information with Parole Board on Discretionary Mandatory Review

Ex parte Thomas Christopher Retzlaff, No 74,772 March 3, 2004 - The Court of Criminal Appeals of Texas ruled that a person who is given notice for release to discretionary mandatory supervision at some unspecified time was not given timely notice consistent with due process. The ruling came about due to the discretionary supervision statute which requires release unless the parole panel makes two specific findings (1) the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation; and (2) the inmate's release would endanger the public. Under the current provision, an inmate who is eligible for release on discretionary mandatory supervision will be released unless the parole panel makes these two specific findings. Given the workings of the statue, an eligible inmate has a vested, statutory entitlement to release on discretionary mandatory supervision, but it is a defeasible interest (one that may be defeated), but only if the parole panel makes these findings in its review. Timely notice to the inmate that he/she will be reviewed for discretionary mandatory release gives him/her the opportunity to provide evidence. To be effective, this notice must be given sufficiently in advance of the discretionary mandatory supervision release review date to allow the inmate to prepare and submit any such information. It is my belief, according to this ruling, all inmates who were denied discretionary mandatory release and have evidence to submit to the Parole Board would be allowed to re-open their

case. The question the court ruled on was a person who is given notice for release to discretionary mandatory supervision at some unspecified time was given timely notice consistent with due process? The court held it did not. It ruled because the discretionary supervision statute requires release unless the parole panel makes specific findings. The court ruled incarceration is illegal and unconstitutional unless within 60 days the panel has a hearing with timely notice at least 30 days in advance of the hearing to submit whatever material the inmate wishes or the inmate will be released. This is a major ruling establishing the panel to hear the DMS on a date certain instead of some vague date within 6 months of the established date. This ruling may allow inmates to reopen parole hearing when the board voted prior to the inmate submitting information on the inmates behalf.

2^nd Time Around is a Charm

Ex parte: Retzlaff, 135 S.W.3d 45 (Tex.Cr.App. 2004) this is the second time Mr. Retzlaff has had to file a writ regarding what is sufficient notice on discretionary mandatory reviews. The court ruled there is a liberty interest in discretionary mandatory review procedures and the parole panel must justify non-release to the two statutory findings of (1)The inmate's occluded good time to time is not an accurate reflection of the inmate's potential for rehabilitation; (2) The inmate's release would endanger the public. Because of this ruling on August 20, 2004, the Parole Board instituted the following rules: the inmate shall receive notice of the pending discretionary mandatory supervision review no later than the 75^th day prior to the offenders projected release date, the notice shall advise the inmate of the designated review and allow for a minimum of 30 days for the offender to submit information he wishes the parole panel to consider ; any information submitted by the offender must be submitted in writing and received by the parole division by the 45^th day prior to the offender's projected release date. There is some interesting language contained in this opinion which indicates if this is not done correctly, the inmate must be released whether he has received a vote are not. This wording in the opinion is affecting those individuals who have been retained in the county for a time in excess of the discretionary mandatory review date.

Inmates Have the Right to Rely on Notice of Specific Date on Discretionary Mandatory Review

The Court of Criminal Appeals in Ex Parte Schook, No. 74-085, delivered on November 24, 2001, an opinion regarding a discretionary mandatory review hearing stating "the court holds that when the Board gives the inmate notice of a specific date on which the hearing is scheduled to take place, the inmate is entitled to rely on that information and accordingly has until that day to submit relevant information on his behalf. If the Board holds the hearing for such consideration on a date earlier than the specific date the inmate had been notified the hearing would take place, then the inmate has been misled by the notice and denied the full opportunity he was told he would have to submit relevant information to the Board. The parole board should again consider the applicant for mandatory release and provide him with the timely notice that such consideration will occur."

Court Rules - Must Give Inmate Hearing Prior to Imposing Sex Offender Registration:
Tony Ray Coleman v Doug Dretke the court ruled the parole panel's imposition of sex offender registration and therapy as conditions to his parole, without providing Mr. Coleman the opportunity to contest a sex offender status, violated his right to due process. The Texas Department of Criminal Justice is authorized by Texas law to impose reasonable conditions on parolees to serve the interest of protecting the community and rehabilitating the parolee. When those conditions impact a liberty interest of the parolee they may be imposed only with justification. The Department may condition Coleman's parole on sex offender registration and therapy only if he is determined to constitute a threat to society by reason of his lack of sexual control. Absent a conviction of a sex offense, the Department must afford him an appropriate hearing and find that he possesses this offense of characteristic before imposing such condition. I would strongly recommend inmates who have no sex conviction, not waive their right to a hearing. Such waiver may allow the parole board to set any condition they would like without having to give the inmate the due process right to contest the parole board's perceptions of the inmate.

State Can Now Appeal Adverse Rulings

STATE v. MEDRANO
OverrulesRobert v. State, allows the State of Texas to appeal any adverse decisions made by the trial court. Under Robert v. State, 940 SW2d 655, the State may not appeal pretrial evidentiary decisions unless the trial court has ruled that the evidence was "illegally obtained." A standard that would not be met if the ruling was based on a comparison of probative value and prejudicial effect. This case therefore, overruled Roberts and the state is no longer limited solely to pretrial rulings that suppress "illegally obtained" evidence.

Defendant Waives Right to Appeal Can Not Then Appeal Later

Price v. State, 05-01-00067-CR, 01/28/02 D plead guilty to charges of aggravated assault and murder as part of a plea agreement which included as a component a provision that D waived the right to appeal. The court held when a defendant has bargained for a sentence recommendation or from the prosecution in exchange for a waiver of the right to appeal, the accused should be held to this bargain.

Court Has Jurisdiction Over DNA

Kutzner v. State of Texas, when convicting trial court declined to order DNA testing of two hairs and fingernail scrapings recovered form the murder victim, Kutzner appealed to the CCA. CCA held that it does indeed have jurisdiction over DNA testing claims under Chapter 64 of the Code of Criminal Procedure.

State Must Give Exculpatory Evidence to Defense

Ex Parte, Richardson No. 74-221, 3/13/2002, because the credibility of the State's only eyewitness was a crucial issue in the applicants trial, the State has an affirmative constitutional duty under Brady v. Maryland to disclose material evidence that impeached testimony.

What The Judge Says is What You Get

Ex Parte Madding, No. 74-082 3/6/2002

In a post-conviction writ of habeas corpus, the applicant was convicted of burglary of a building and sentenced to 17 years imprisonment. He claims a constitutional double jeopardy violation when the trial court pronounced in open court his sentence would be served concurrently with another case in Greggs County, but the judgement signed 52 days later ordered this sentence to be served consecutively. Ruling was granted stating once applicant was removed from the courtroom and began serving his sentence, it was too late to cumulate the sentence just imposed with an earlier one. A trial court does not have the statutory authority or discretion to orally pronounce one sentence in front of the defendant, but enter a different sentence in his written judgement, outside the defendant's presence.

Once You Waive Miranda Rights and Talk You Waive the Right to Remain Silent to Any Crime

Cobb vs. State No. 72 - 807, opinion entered 5/29/2002; if a law-enforcement officer subsequently approach the suspect about another offense, whether related to the charged offense or not, and administers the Miranda Rights warning, neither the Federal nor the Texas Constitution prevents the suspect from voluntarily waiving his privilege and speaking to the officers about his other offense, even without the benefit of his counsel's assistance. In other words, it would be wise to never talk to a police officer about any crime even if you have an attorney.

State Must Actively Seek Out a Probationer If Motion to Revoke Probation is Filed/Also Works for Parole

Peacock vs. State No. 1750-00, 5/29/2002; when the state has filed a Motion to Revoke Probation and the Probationer raises the issue of whether the State actively went looking for him the State is required to prove due diligence by a preponderance of the evidence when the issue is raised at the revocation hearing. This would also be applicable to a parole revocation hearing.

No Right to a Good Attorney on Writ of Habeas Corpus

In a shocking opinion, the Court of Criminal Appeals of Texas ruled in Ex Parte Anthony Charles Graves, No. 73,927, delivered on January 2, 2002, "There is no constitutional right to effective assistance of counsel on a writ of habeas corpus." The more alarming statement contained in this opinion is "the fact that an appeal has been provided does not automatically mean that a state then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way. In sum, simply because a state provides for the possibility of a particular procedure or remedy, it does not inextricably follow that the state must also provide legal counsel to one seeking to pursue that remedy. Here, the writ of habeas corpus is a constitutionally available remedy for instances of illegal restraint, but nothing in the federal or Texas Constitution requires the state to appoint and pay for counsel to pursue that remedy. If the convicted person has no constitutional right to appointment of any counsel in a post-conviction habeas corpus proceeding, it inevitably follows that he cannot claim constitutionally ineffective assistance of counsel in that proceeding." The court further ruled the 1995 Habeas Corpus Reform Act did not create a constitutional right to effective assistance of counsel in death penalty cases. Once again, it is now incumbent upon an inmate to find competent counsel to represent him or suffer the consequences at a later date. This ruling was so shocking that the Dallas Morning News wrote an editorial against this particular decision.

The Fifth Circuit issued an opinion in Teague v. Quaterman (5^th Cir. 3/2/07).  This case holds where an inmate’s sentence is subject to either mandatory supervision or discretionary mandatory supervision, if the inmate suffers the loss of any time credited as a result of disciplinary actions, such loss is a valid liberty interest issue, and is not de-minimus in nature therefore a writ to challenge any claim of defect in the constitutionality of the disciplinary process can be filed directly in federal court.  This will allow the inmate to get around the decision in Ex Parte Brager, 704 S.W.2d 46 (1986) indicating Texas courts will no longer consider such discipline actions.