By Jay Freeman, ConceptSR22.com
From The Defender – Vol 1, 2022
By Jay Freeman, ConceptSR22.com
From The Defender – Vol 1, 2022
Dedicated to all Veterans including:
Virgil Poe, WWII U.S. Army Ted Poe, U.S. Air Force
Joe Pelton, U.S. Army Robert C. Pelton, U.S. Army
Jack Zimmermann, U.S. Marines Larry Moody, U.S. Air Force and U.S. Army
Frankl Dunlevy, U.S. Army
And presently serving:
Sam Pelton, U.S. Army Terri Zimmermann, U.S. Marines
Ft. Campbell, Kentucky
In memory of:
Mike McSpadden, U.S. Marines Robert Paul Robbins, Jr., U.S. Army
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies foreign and domestic: that I will bear true faith and allegiance to the same. That I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.
Voting is not a privilege, it is a right, and many paid dearly for it. Remember this when you say “my vote won’t count” or “I’m too busy” or “I don’t care”– American men and women in uniform have served, or are currently serving, in the military to protect and preserve our democracy and YOUR right to vote. Many have died[i] or suffered permanent disabilities fighting for our freedoms.
Voting is our most fundamental right as Americans–many sacrifices have made it possible for our citizenry to be able to vote– from military actions to civil rights movements.
African-Americans won the right to vote in 1870 when the 15th Amendment[ii] ended the practice of denying the right to vote based on race, skin color, or prior servitude. This was the third of the Reconstruction amendments[iii]. Fifty years later, after a long struggle known as the Women’s Suffrage Movement, women earned the right to vote in 1920 with the 19th Amendment[iv].
Many black citizens were threatened or killed trying to exercise their right to vote. There were other voting obstacles as well. A “poll” or “head” tax had to be paid in person at the time of voting. It was imposed on all adults equally, regardless of income or property ownership. The poll tax was used in the South during and after Reconstruction as a means of circumventing the 14th Amendment[v] and denying voting rights to African-Americans.
The tax also created a burden on poor white Americans. This form of taxation gradually fell out of favor in the South in the mid-20th century, but it was not until the adoption of the 24th Amendment[vi] in 1962 that poll taxes were finally abolished as a prerequisite for voting in federal elections. They were later eliminated in all elections. The Voting Rights Act of 1965 was passed to enforce the already existing rights in a handful of Southern states.
Don’t take our freedoms for granted. Too many have sacrificed for our rights. Be smart in your voting decisions. Politics can be dirty business–false information is everywhere–so look at the source of these allegations. Remind others to vote. You can send out emails to people on your list and encourage them to vote. Since you as a lawyer may know more about many of the candidates, you can do a service for your contacts by giving them your choice of who is the best candidate.
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About the Author:
Robert Pelton is a Criminal Defense Lawyer with offices in Houston and Abilene, Texas. Mr. Pelton was awarded the State Bar of Texas Presidents Award 2020. Mr. Pelton has been named “Top Lawyer for the People” and one of Marvin Zindler’s “Marvin’s Angels” by H-Texas Magazine (2007). He was the personal lawyer for Marvin Zindler for 31 years. He was also rated by Super Lawyers (2014-18). Mr. Pelton is a Past President of HCCLA (1985-86), Founder and Chairman of HCCLA and TCDLA Ethics Committees (since 2011), a recipient of the Jim Bowmer Award for Professionalism from the Texas Bar College (2012); HCCLA Richard “Racehorse” Haynes Lifetime Achievement Award (2016); TCDLA President’s Awards (2011-18); and a United States Congress Proclamation from Congressman Ted Poe for his Zeal and Tenacious Defense of his Clients (2016). In the 1980s, Robert Pelton and Allen Isbell created Docket Call, now known as The Defender. Veteran of U S Army and Texas Army National Guard 36th Infantry Division.
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[i] Deaths in American Wars: Revolution (4,435); War of 1812 (2,260); Mexican War (13,283); Civil War (618,000); Spanish-American War (2,446), World War I (116,516), World War II (405,399), Korea (36,574), Vietnam (58,220), Gulf War (383), Iraq/Afghanistan (6,607). The American Prospect (May 26, 2014).
[ii] Passed by Congress February 26, 1869. Ratified February 3, 1870.
[iii] 13th Amendment abolished slavery. Passed by Congress January 31, 1865. Ratified December 6, 1865. 14th Amendment provided citizenship rights, due process and equal protections. Passed by Congress June 13, 1866. Ratified July 9, 1868.
[iv] Passed by Congress June 4, 1919. Ratified August 18, 1920.
[v] Passed by Congress June 13, 1866. Ratified July 9, 1868.
[vi] Passed by Congress August 22, 1962. Ratified January 23, 1964.
By Evan Mintz
I’m looking for stories of Houstonians who have been charged with misdemeanors and directly benefitted from the recent pretrial reforms.
In 2016, Harris County was sued for using an unconstitutional cash bail system in its misdemeanor courts. In 2019, Local Rule 9 was implemented, setting out new regulations around misdemeanor pretrial systems. Under these rules, most people charged with a low-level crime in Harris County are released without a secured money bond — with exceptions for domestic violence, new crimes while on release or supervision, second DWI charges, and a few other circumstances.
So far the results have been overwhelmingly positive. Researchers have found a decline in repeat offending rates, decline in re-arrest rates, reduction in misdemeanor filings, and a decrease in the length of pretrial detention.
But while we have lots of data, we don’t have the stories about how these changes have impacted individual Houstonians. Under the old cash bail system, legally innocent mothers and fathers, daughters and sons, would remain stuck in jail simply because they didn’t have enough money. Even a few days in jail can inflict serious harm on an individual, causing them to lose their job, their home, or even their family.
In fact, we know that dozens Houstonians actually pleaded guilty to crimes they didn’t commit simply to get out of jail on a “time-served” punishment.
The misdemeanor reforms are supposed to put an end to these unjust and undeserved harms inflicted by cash bail. But the best way to tell that story is from the perspective of Houstonians who got to go home to their jobs, families and communities rather than stay stuck in behind bars.
The ACLU and Drug Policy Alliance worked with Brave New Films to tell the story about how bail reform in New Jersey helped people get back to their lives rather than suffer needlessly before trial.
It is time for Houston to tell our story.
Please reach out to me if you have anyone who would be interested in talking about their time in the Harris County criminal justice System and was materially aided by a PR release under Rule 9.
Today, every adult American citizen regardless of race, gender, religion or socio-economic background has the opportunity to vote. The dreams of our founding fathers, propounded by action, gave us the right to change, the right to be heard, and the right to vote. However, this was not always so. To remind us of our civic duty, Vote America! educates students about the heroic efforts made for equality and democracy; the struggles of the civil rights era, passage of the 1965 Voting Rights Act, and the 15th, 19th, and 26th amendments to the U.S. Constitution are all chronicled in this historical video.
Vote America: Court the Vote continues the Texas Young Lawyers Association’s long-standing commitment to producing quality, law-focused education programming for the citizens of Texas and beyond.
For more information on this project, please visit tyla.org/Vote-America
Texas Young Lawyers Association
1414 Colorado Street, Suite 502
Austin, Texas 78701-2487
(800) 204-2222 ext. 1529
Written By : Kim Borwick
Americans are taking necessary precautions for their health and the health of others within their communities, adapting their behaviors in an attempt to flatten the curve. Second only to health concerns are Americans’ worries over their individual finances — including job security, health care costs and retirement savings — and fear for the national economy.
The $2 trillion CARES Act has enacted policy to mitigate the crisis to a degree, but experts predict that it will be months before the economy is back on track.
The immediate impact of COVID-19 has been swift and crippling to the economy.
With 41 states and Washington, D.C., having already issued shelter-in-place orders, governors of states in the Midwest and the South have dug in their heels, refusing to issue statewide orders for fear of devastating their economies.
The dilemma facing leaders is the paradox of taking measures to contain the virus as a way to sustain the economy.
If, as Dr. Anthony Fauci has urged, the federal government imposes a nationwide stay-at-home order to prevent further spread of the coronavirus, the pause will have an immediate effect on the economy. And if Dr. Fauci’s and other health experts’ advice is dismissed, we will likely see thousands more cases of COVID-19.
Harris County grand jury selection begins at NRG Arena
(Houston Chronicle — July 6, 2020)
By Ed McClees and Mark Thiessen
Recently, Harris County and other counties around that state have increased Personal Recognizance bonds. This bond paperwork then becomes public record. In this paperwork, people are requested to list their cell phone numbers, and some marketing companies and lawyers have started using this information to solicit new clients via text messages.
Rapidly evolving technology coupled with aggressive marketing tactics have created a new minefield for the uninformed lawyer. It’s been well settled that attorneys are not allowed to “cold call” potential new clients, whether it be for personal injury actions, criminal cases, or other legal work. Often referred to as “ambulance chasing,” which has been rampant in the personal injury world for years, we are faced with a new similar threat in the criminal world. Welcome to the world of cold calling or cold texting clients on their cell based off public information received from the district clerk or bond documents.
Unsolicited Text Messages Can Be Illegal
Texas Penal Code § 38.12(a) makes it a third-degree felony “if, with the intent to obtain an economic benefit the person…solicits employment, either in person or by telephone, for himself or another.” It is also a third-degree felony if a person “knowingly finances” or “invests funds the person believes are intended to further the commission” of act of barratry. Tex. Pen. Code § 38.12(b)(1-2). The Penal Code further prohibits a lawyer from knowingly accepting “employment within the scope of the person’s license … that results from the solicitation of employment in violation of [the barratry statute].” Tex. Pen. Code § 38.12(b)(3).
A person convicted of barratry faces severe penalties from the State Bar because a “[f]inal conviction of felony barratry is a serious crime for all purposes and acts, specifically including the State Bar Rules and the Texas Rules of Disciplinary Procedure.” Tex. Pen. Code § 38.12(i).
Depending on the facts surrounding the particular situation, a creative and aggressive prosecutor could even try to throw in a Money Laundering charge (Tex. Pen. Code § 34.01) for the amount of fee that the client paid the lawyer who committed barratry.
The Texas Disciplinary Rules of Professional Conduct Frown Upon Unsolicited Text Messages
The Texas Disciplinary Rules of Professional Conduct recognize that “[i]n many situations, in-person, telephone, or other prohibited electronic solicitations by lawyers involve well-known opportunities for abuse of prospective clients.” Tex. Disc. R. of Prof. Cond. 7.03, com. 1. The “principal concerns presented by such contacts are that they can overbear the prospective client’s will, lead to hasty and ill-advised decisions concerning choice of counsel, and be very difficult to police.” Id.
Texas Disciplinary Rule of Professional Conduct 7.03(a) says that a “lawyer shall not by in-person contact, or by regulated telephone contact or other electronic contact … seek professional employment concerning a matter arising out of a particular occurrence or event … from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment…”
This same rule defines “regulated telephone contact” as “any electronic communication initiated by a lawyer or by any person acting on behalf of the lawyer…that will result in the person contacted communicating in a live, interactive manner with any other person by telephone or other electronic means.” Tex. Disc. R. of Prof. Cond. 7.03(f). Clearly, text messages fall under this definition.
Follow State Bar Rules for Advertisements
From the outset, when in doubt, follow the requirements of the State Bar of Texas Advertising Review Committee. Submit your advertisement or plan of attack to the Bar and ask for permission. Note, the Bar will never give a lawyer clearance over the phone. All advertisements must be submitted in writing and if approved will be approved by letter with a green stamp on it. Failure to have this written approval subjects the lawyer to defending their marketing tactic before the Bar. Rule of thumb if you have a “clever” new marketing idea: get it formally approved. Texas Disciplinary Rule of Professional Conduct 7.07 lays out the requirements for submitting your marketing idea to the State Bar for approval.
The State Bar has set very specific rules regarding unsolicited direct mail outs. See Tex. Disc. R. of Prof. Cond. 7.05. The font, color, material must all be pre-approved by the State Bar. This is widely known and has been the case for over 20 years. However, with evolving technology, one could hypothetically reach potential clients faster than mail, by text or direct phone call. The same rule that governs mail outs also governs electronic or digital solicitations. Id.
We are aware of a single lawyer who received an approval letter from the State Bar of Texas Advertising Review Committee for the use of sending a text message to potential clients. It is important to note, however, that this opinion expressly stated that “[i]t does not address any unauthorized practice of law or ethics issues that may be present, which are beyond the scope of an advertising opinion.” Therefore, even if you get an approval from the State Bar of Texas Advertising Review Committee, you still face potential ethics issues, as discussed above, and liability issues, which are discussed in more detail below.
It should also be noted that the text message that received this approval stated “*ADVERTISEMENT*” in all capital letters at the top of the message, and ended with “PLS DO NOT REPLY TO THIS MESSAGE. REPLIES ARE NOT RECEIVED NOR [sic] RETURNED.” Also, this text message only asks the recipient to call the number listed if the recipient did not already have an attorney. The fact that this was an automated message that lacked the ability for the lawyer to directly start a conversation with the potential client could have been an important factor that distinguishes this kind of message from interactive direct texting.
Be Careful with Lawyer Referral Services
Both the Texas Penal Code and the Texas Disciplinary Rules of Professional Conduct make it clear that a lawyer can get in trouble if that lawyer knowingly uses a lawyer referral service that breaks the rules. These services are regulated by the Texas Occupations Code, which defines a “lawyer referral service” as “a person or the service provided by the person that refers potential clients to lawyers regardless of whether the person uses the term ‘referral service’ to describe the service provided.” Tex. Occ. Code. § 952.003(1).
Many of the people operating lawyer referral services do not realize that a “person may not operate a lawyer referral service in this state unless the person holds a certificate issued” under the Occupations Code. Tex. Occ. Code § 952.101. Also, applicants for these certificates must be operated by a governmental entity, or a nonprofit entity. Tex. Occ. Code § 952.102.
So, be weary when your email box gets flooded with various lawyer referral services trying to get you to pay them for client referrals. Many of these businesses are not operating legally. If your marketing company directly texts potential clients on your behalf you are the one who faces the legal consequences.
Unsolicited Text Messages Seeking Clients is Illegal and Subjects the Sender to Civil Liability
There are several civil penalties that exist for directly soliciting clients via text message. Tex. Gov’t Code § 82.0651, for example, creates an aggressive civil penalty for barratry where the offending party must forfeit their attorney’s fees, pay a $10,000 fine, and the attorney’s fees of the party bringing an action.
Additionally, the Telephone Consumer protection Agency (TCPA) and Federal Communications Commission (FCC) regulations make it illegal for a company to send a text message unless the person receiving the text message gave consent to receive it, or if the message was send for emergency purposes. While we all agree that getting new business is important, it falls well short of being an “emergency” under these regulations.
The bottom line is that any lawyer who directly or through a third party sends unsolicited text messages to people charged with a crime in order to solicit that person’s business risks significant criminal and civil liability. Lawyers should not cold call any number that has not contacted you first or asked you through some sort of submission, to contact you.
Duty to Report
As attorneys we have an affirmative ethical duty to report barratry. Tex. Disc. R. of Prof. Cond. 8.03.
However, if a text was to mimic the requirements established in the Rules, would it be ethical? As of the date of this writing, we have found no ethics opinion or court opinion that authorizes such conduct. Any lawyer who wishes to engage in this unscrupulous tactic should first seek State Bar Advertising Review Committee approval, but even that will not necessarily shield you from ethical consequences or civil or criminal liability.
While no lawyer wishes to “snitch” on a fellow lawyer, this affects us all and cheapens our profession. If we do not take action against this conduct, then we risk having a criminal bar that goes the way of the personal injury bar – where significant numbers of cases are illegally “run” by the criminal law version of the ambulance chaser in a cheap suit. This illegal and unethical conduct makes all of us look bad in a world where people already have a hard time trusting lawyers.
Some might suggest that an unsolicited text message is no different from mailouts, which have been approved and have been happening for years. Unsolicited texts messages are distinguished from mailouts for several reasons:
No one likes to snitch on friends. However, the practice of unsolicited text messaging is unethical and illegal unless specifically allowed by the State Bar. This article is not intended to encourage grievances, prosecution, or civil lawsuits; rather, it is intended to educate those attorneys who think they or the company they hired found a cutting age way to market for new clients. Technology may be evolving, but the basics of law remain the same. Remember, pigs get fat, hogs get slaughtered. If you have a new way to market, get it approved. The State Bar will not tell your competitors, but this approval will vindicate you when your competitors take offense.
 Lawyers should be weary of lawyer referral services, which is discussed in more detail in another section.
The Stay-At-Home and Shelter-In-Place Orders issued across the country have presented unique challenges in many forms. For litigators, these challenges have required an industry that is resistant to change to adapt quickly and dramatically in order to continue to fulfill our obligations to our clients and the legal system. We commend judges, counsel, clients, those in the legal industry, and everyone else who is taking part in learning and mastering these virtual substitutes, for continuing to innovate and keep the wheels of justice moving.
Video conferencing has become the new norm for all types of proceedings throughout Texas and the United States. In Texas, the Office of Court Administration (OCA) secured a Zoom contract and a license is available to all State of Texas judges. Additionally, the OCA recommends that most non-essential proceedings, except for jury trials, be conducted remotely. While the means for conducting proceedings has been given, the legal community is now faced with handling the logistical details of how to effectively and professionally participate in a Zoom proceeding. Several best practices have emerged to help you present your case in the best manner.
First Things First–Setting Up Zoom For Your Practice
One of the main reasons why Zoom seems to be such a popular video conference option is its cost-effectiveness. Zoom has a free option that provides a number of features, and its subscription service is relatively inexpensive (i.e. $149.90 for an annual, single license). In comparison, competitors such as GoToMeeting do not offer any type of free plan.
Installing Zoom is extremely easy and user-friendly. A web browser client is downloaded whenever you start or join your first Zoom meeting. On the Zoom website, any number of plugins or extensions can be installed so that Zoom can be run from applications such as Google Chrome, Microsoft Outlook, or Skype for Business. Zoom can also be run from a mobile device, such as a tablet or smartphone. As might be expected, running Zoom from a computer with a webcam or a laptop provides a richer experience over using it on a tablet or smartphone. A smartphone should only be used as a last resort.
As Always, Check for Local Rules
Before appearing in a proceeding, you should also check with the specific rules of the court. Different judges will have their own preferences on topics such as mute procedures, whether or not recording is allowed, and how to submit evidence. Additionally, as judges gain more experience with Zoom, those preferences may change over time. For instance, the 345th District Court issued procedures that include a rule about muting when not speaking and a detailed procedure on how to submit exhibits. In comparison, Judge Kyle Carter includes in his Court Decorum rules the following: “Mute Button When You Are Not Speaking, Identify Yourself Each Time You Speak, and Recording is Prohibited.” These rules may seem strange or arbitrary, but they are often the result of some surprising discoveries about Zoom. For instance, many courts are setting Zoom videoconferences to private, utilizing breakout rooms and keeping witnesses in virtual waiting rooms. This has become a necessity because of Zoombombing (a form of hacking). Recordings are generally discouraged because the only official record of a court proceeding should be the one produced by the Court Reporter. Additionally, several courts are advising that chats be avoided altogether or prohibiting private chats. This is in response to the discovery that messages that were sent in a private, person-to-person mode, can actually be viewed by anyone who downloads the transcript from Zoom.
Three Ways to Improve your Presentation
It is important to have a clean and professional looking background when engaging via Zoom. This is necessary for both depositions and court proceedings since deposition recordings may be introduced later during a hearing, and court proceedings are often livestreamed to YouTube or Facebook to ensure the public has access under the Open Courts Provision of the Texas Constitution. You don’t want people thinking about what is going on behind you and not listening to what you have to say.
With this in mind, you have several options. You can look for an organized, clutter-free space in your home that can be your background. Alternatively, as a way to improve your presentation or the presentation of your witness, you can use a virtual background through Zoom. For depositions, assuming it is your witness, be sure to give some thought about the witness’ background.
If you want to use a virtual background, you need to test it to see if the space you want to use will need a green screen. A cluttered background makes it difficult for the technology to differentiate you from what is behind and around you. In this situation, you will need a green screen to use a virtual background. There are many options for purchasing a green screen online, but you can also purchase inexpensive options like a green poster board or make your own screen by painting a sheet or piece of cardboard. Also, be sure that your clothes are not the same color as your background (e.g. green shirt with a green background) or you will become the invisible person.
The process of adding a virtual background is very easy and you can add anything you think would look the best. To help, we have created a photo gallery of professional, license-free images that you can download and use for yourself. Click here. We have also set out instructions on how to download and upload the images to your Zoom account.
For court proceedings, each court will likely have its own rules about how to present documents. Some courts have used Dropbox to allow attorneys to share evidence, but many others prefer email. Be sure to call the Court prior to your hearing to determine how the Court handles the presentation of evidence. Some judges can manage the exhibits themselves and share their screen on Zoom when exhibits are used. If, on the other hand, you are required to present your exhibits, then you need to know how to share your computer screen and how to direct people’s attention to the parts you want. An app we find helpful in the presentation of evidence is Snagit. This app allows you to easily cut and paste from documents and zoom in easily.
When it comes to depositions, we suggest coordinating with the videographer beforehand so they can verify that they have high-quality, clean copies and that they will be able to zoom in on relevant portions of exhibits as needed. You should also familiarize yourself with Zoom’s ability to share your computer screen so you can present documents on the fly during the deposition.
In order to make sure you have high-quality video and audio, you will need a strong wired or WiFi connection, so you may need to experiment in different parts of your home to find the strongest signal. Attorneys should also try to find a quiet place where ambient noise will be at a minimum (think rooms with carpet or rugs and rooms with no echo). If available, using ear buds with a built-in microphone provides a better listening experience, reduces background noise and allows others to hear you better. With respect to lighting, you want the room to be well lit. Lamps are helpful and, when available, should be placed evenly with or a little behind your camera. Avoid having bright lights in the background because such light will create problems for the camera. As for the location of the camera, try to have it eye-level so that it appears that you are looking at the other individuals on the conference.
Even with the best preparation, it can be difficult to anticipate how your Zoom video conference will behave on the day that you need it. Associate Judge Aurora Martinez Jones suggests that you try to avoid Zoom “traffic,” if possible, by requesting or setting a start time that is mid-morning or later. She also recommends that you have a number of backup devices available in case your audio does not work or if you need to have private attorney-client communication. If you do end up using multiple devices, make sure to label them all properly when logging into Zoom using your first and last name so that they can be easily identified by the host of the videoconference. If only a phone is used, provide the host with your phone number ahead of time. If you are the host of a Zoom video conference, it is recommended that you ask all participants to log in early to iron out any technical difficulties.
Judge Dimple Malhotra also has a number of suggestions to ensure successful Zoom video conferences. If there is time before the official start time of the hearing, be sure to turn your video off until it is needed. She also encourages attorneys to be aware of issues of access. Not all participants have the capability to use Zoom. Some clients may not have a compatible device or internet access, and you should be prepared to come up with alternative arrangements.
Proper Preparation—Be Sure to Test Your Setup and System Before Any Hearing or Deposition
After installing Zoom, users should test out the functions in Zoom by going through the various options and setting up a videoconference with a friend or colleague. When setting up this test, be sure to record the test session so you can go back and watch the test so that you will understand what others will see. You want to familiarize yourself with the basic functions such as different view options, mute, and chat. Depending on the device used and the form of Zoom interface, certain features may not be available. For instance, some devices may not have the video capabilities to utilize virtual backgrounds. Finally, attorneys should practice working with the different video and audio options, as well as how to use screen sharing and documents.
With these best practices in mind, combined with patience and learning from experience, Zoom can be a powerful tool to help courts and attorneys continue their important work.
About the Author
Graham Sutliff is the co-founder of Sutliff & Stout, Injury & Accident Law Firm. Graham is Board Certified in Personal Injury Trial Law, and he has been actively trying personal injury cases for over fifteen years.
by Robert Pelton
In the spirit of the Christmas season and to remind our members never to give up on any motion, we want to share this motion with you and discuss some points on Motions for Continuances in State court. In the case of this motion, three other motions had already been filed and denied. In an act of frustration and desperation, we filed this one below, which was granted. In the motion, only the defendant names and case number have been changed. This has been published previously, but for those who may have missed it, I hope it brings a smile to your face at the end of a hard fought year for your clients.
Epilogue: Once this motion was granted, it gave us sufficient time to complete our preparation of the case in a proper manner. Because we had additional time, we were able to adhere to our duty bound ethical oath: to zealously defend our client. Facts helpful to the defense are always hidden at the bottom of the well. That digging takes time and tenacity.
Time is the most valuable commodity to lawyer. Abraham Lincoln said that “A lawyer’s time and advice are his stock in trade.” If time is used wisely, our clients benefit. We all need time to work on our cases and explore all possible defenses or punishment options. We never have enough time.
On the flip side, judges and prosecutors want to move the docket. Prosecutors’ caseloads are huge and the statistics of open cases in their court are ever present on the mind of our judges. As defense counsel, we must be the gatekeepers to ensure our clients receive their right to effective assistance of counsel based on a thorough investigation of the facts. Without those facts our client cannot make his or her decision to move to trial or prepare for mitigation. This takes time. It is your job to get that time.
One Harris county judge who has since departed, bragged that if a judge was still in court after twelve noon, he was not doing a good job. I was in court the day he made the statement to a local television reporter named Wayne Dolcefino. I told the judge to remain silent; but he like many let his alligator mouth override his humming bird ass. It was on the 6 o’clock news. He told me the next day he would listen to me the next time. The next time never came because he was defeated in the next election and his comments made great propaganda for his opponent. An arbitrary “rocket docket– move it along mentality” goes against the grain of our justice system to the detriment of the citizen accused.
All lawyers know that a continuance usually works in favor of a defendant, but it is routinely used by the defense as well as the state in accord with Article 29.03 of the Texas Code of Criminal Procedure . By and large, most continuances are reached by agreement with the State. When necessary, a well drafted Motion for Continuance should contain exhibits. If the exhibits involve personal or confidential information, request an in camera inspection by the Judge in your motion. Never underestimate the power of demonstrative exhibits. A picture is worth a thousand words. Don’t be shy. In the event your motion is objected to, and a controverting motion is submitted by the state, pursuant to Article 29.09 of the Texas Code of Criminal Procedure, your motion and your exhibits must stand alone to win the day. Do not rely on a stellar oral argument to get you by. Article 29.10 makes it clear the testimony shall be made by affidavit. If the continuance has become the 900 pound gorilla in the courtroom, use technology readily at hand. It is amazing how fast a motion for continuance will be granted when you have a photo of a swollen, bruised, battered or bleeding body part.
Happy Holidays and Best Wishes for the New Year.
 Texas Code of Criminal Procedure-Article 29.03 Sufficient Cause
Art. 29.03 FOR SUFFICIENT CAUSE SHOWN. A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown, which cause shall be fully set forth in the motion. A continuance may only be as long as is necessary.
 Texas Code of Criminal Procedure-Article 29.09 Controverting Motion
Art. 29.09. CONTROVERTING MOTION. Any material fact stated, affecting diligence, in a motion for a continuance, may be denied in writing by the adverse party. The denial shall be supported by the oath of some credible person, and filed as soon as practicable after the filing of such motion.
 Texas Code of Criminal Procedure-Article 29.10 When Denial is Filed
Art. 29.10. WHEN DENIAL IS FILED. When such denial is filed, the issue shall be tried by the judge, and he shall hear testimony by affidavits, and grant or refuse continuance, according to the law and facts of the case.
by Patrick F. McCann
I confess I enjoy the holidays. It is the one time of year when people try to treat each other the way we should treat each other all year. One wishes the best for one’s fellow men and women, and hope can actually be felt. Selfishness is just a little less palpable in the air. So, here, in the spirit of the holidays, is a gentle wishlist for our colleagues across the aisle in the courthouse, and for their boss, the elected District Attorney. The office has faced, as all the county has, some unique challenges across this past year in the aftermath of one of the greatest storms in the history of Texas. Under the District Attorney’s guidance it has also overcome many of these challenges. So now that there is a new “quasi-normalcy” to the proceedings in our courthouses, here is my wishlist, for both the office, the DA herself, and the friends and colleagues who inhabit the same court space with our part of the bar.
I wish for the time for her senior staff to finally implement the policies I believe they believe in. By that I mean working out thoughtful, measured and new ways to deal with drug and mental health diversions from prosecution, ensuring that juveniles do not get arbitrarily sentenced to life in prison, and the truly thoughtful use of severe charges against people who are minor participants in crimes. I mean a reduction in numbers and severity of sentences, and a true embrace of community supervision. I wish for a recognition that while prisons exist, they do little to help people re-gain their lives or re-enter our society. I believe that Harvey has kept this office from truly getting to implement these programs, and I wish the DA and her staff the time and inspiration to do what they came here to do, i.e. reverse the decades of cowboy culture and ill-informed “tough on crime” stance that was felt largely by the poor, the mentally ill, and those who were not white. It is time for meaningful policies to be announced and implemented, and I wish them well in tackling these issues.
I wish that the Assistant District Attorneys who have stayed with the office during this period are rewarded with the kind of positive training and in-depth legal education that they deserve. When one is trying to stay afloat in dangerous waters, training does often go over the side of the boat. Training, the kind of national training available through non-profit organizations and the department of justice, is an investment in the young lawyers and assistants who are the future chief prosecutors in our state – it is an investment that returns ten fold as it helps good lawyers spot bad cases and dispose of them. I wish that training once again resumes its priority now that the basics of office space and organization have been met.
I wish that for all our young colleagues in the Harris County office that attention to their desire to have and raise families be finally given more than lip service. In a time of modern technology there is no reason flex time and remote work cannot be done and implemented in many parts of the District Attorney’s office. While dockets must be met, there is no real reason to run a modern office as if it were still the 1950s. Networks exist for collaboration across distance, and there is no reason not to permit, for instance, those with child or parent care issues not to work remotely for periods of time or to have flex hours that allow them to tend to family while serving the public. The loyalty shown by the staff of this office has been great; they are owed modern flexible work environments in return. It will increase retention and produce a more productive work force.
I wish them a better budget, both for technology improvements and for support staff. It serves no public interest to have an online portal for uploading evidence that does not work reliably nor is capable of holding all the evidence in a complex case. Nor does it serve anyone to have insufficient staff to upload and distribute this evidence onto such a portal even if it worked properly. It helps no one, from law enforcement to crime victims, to not have sufficient interoperability between systems, or old or antiquated technology that does not work together. I wish true improvements in their budgets for those things this year.
Last, I wish for all the staff at the DAO to have a chance to relax and reflect on their accomplishments this year. They have survived and managed in a time of chaos. We all have been perhaps a little kinder with the shared burden to each other. Let us not lose that spirit this coming year.
Happy holidays to all of our friends at the Harris County DAO.
Patrick F. McCann
Law Offices of Patrick F. McCann
700 Louisiana St. Ste 3950
Houston, Texas 77002