Post-Pandemic Trial Preparation eBook

Post Pandemic Trial Prep Course Directors: Sam Bassett, Betty Blackwell, and Jessica Canter

September 15-16, 2022 Round Rock, TX

Texas Criminal Defense Lawyers Association 6808 Hill Meadow Dr., Austin, Texas 78736 • www.tcdla.com P: 512-478-2514 • F: 512-469-9107 ©TCDLA 2022. All rights reserved.

Texas Criminal Defense Lawyers Association

Post-Pandemic Trial Preparation Table of Contents speakers

topic Thursday, September 15, 2022

Krista Chacona

Representing the Mentally Ill Post-pandemic Criminal Justice System

Friday, September 16, 2022 Lisa Greenberg

Sexual Assault Cases

E. Alan Bennett

Discovery Under the Michael Morton Act

Adam Tisdell Betty Blackwell and Sam Bassett

THC/Hemp Ethics: Dos and Don’ts with Clients

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Post-Pandemic Trial Preparation September 15-16, 2022 Kalahari Resorts and Conventions Round Rock, Texas

Topic: Representing the Mentally Ill Post-Pandemic Criminal Justice System

Speaker:

Krista Chacona

Law Office of Krista A. Chacona, PC 8705 Shoal Creek Blvd. Ste. 202 Austin, TX 78757 512.617.5555 phone 512.366.9623 fax kchacona@chaconalaw.com email https://www.chaconalaw.com/ website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Representing the Mentally Ill Post-pandemic Criminal Justice System The Landscape Not surprisingly, many people with mental health issues did not fair well during the pandemic – even people without diagnosed mental health issues struggled to cope with the isolation and uncertainty. But the individuals that rely on therapists, counselors, psychiatrists, and medication to manage their everyday lives, were left without direct access to the services they depend on to survive. Outpatient mental heath providers stopped in person contact, relying instead on telemedicine to communicate with clients (those with reliable internet), causing many MH consumers to deteriorate dramatically. For those deteriorating to the point of requiring inpatient hospitalization, they found the availabilty of psychiatric beds more limited than usual, as COVID infected patients, social distancing protocols and staff shortages limited admissions.

Normally, when a bed in a psyhciatric faciltiy is not available, patients wait in emergency rooms until they can transfer to an appropriate facility. But emergency room beds were now full of COVID patients, as well as an increasing number of people suffering MH crisis’, and respites and short term placements were closed; thus, leaving a great number of people with no where to go.

As a result, persons with mentally ilnessl in crisis, who might otherwise been diverted to respite centers or psychiatric hospitals, often wound up being arrested, leaving both the hospitals and the jails filled to capacity. Although the pandemic seems to be winding down, the level of deterioration in this population, the lack of services and number of people with mentally ill in jail remain crisis situations.

In Texas, the civil commitment system hospitalizes people with mental illness (“MP’s”) from the community (versus from jail), who have been determined to be a danger to themselves, a danger to others or unable to care for themselves due to substantial mental or physical deterioration (see Chap. 574 Heath & Safety Code). The civil system has been a disater almost since it’s inception. When the Austin State Hospital (“ASH”) opened it’s doors in 1861 it was designed as an asylum for a relatively small number of people to recover and recooperate from the stresses of various ailments for a short period of time. It quickly became overwhelmed by thousands of patients pouring in from all over the state. Because of the low tolerance for and inability to deal with MP’s in the community, many who likely could live in the community with some support, were warehoused at ASH unecessarily for decades. But the pendulum has now swung too far the other way. Travis County, which in the last decade has always had 3-5 psychiatric hospitals (with access to another 3 in nearby Williamson and Bell counties), is routinely turning away grossly deteriorated individuals due to a lack of bed space. Those that do get into a psychiatric hospitals are typically only there 3-10 days, which is simply not enough time to stabilize very ill individuals sufficently to engage in services in the community. Consquently, it is not usual for desperate people to call the police on mentally ill family members/loved ones in crisis. Sometimes, it is in hopes of getting them sent to the hospital, but other times it is actually to have them arrested - believing that the criminal justice system is their only hope for long term hospitalization/stabilization. The failings of the civil system are driving record numbers of MP’s directly into the criminal justice system.

In most jails, the percentage of inmates diagnosed with mental illness typically hovers between 1/3 and 1/2 of the total jail population. Recent executive orders and new legislation

have caused the jail populations to skyrocket and with it, the number of incarcerated MP’s. The governor’s Executive Order 13, followed by Senate Bill 6 (codified in Chapter 17 of the Texas Code of Criminal Procedure) has greatly impaired our ability to get mentally ill defendant’s out on bond and into programs or services that might lead to postive outcomes for their cases. For more than a decade pre-pandemic, we had seen a steady increase in the number of defendants found incompetent to stand trial (“IST”). The number of MP’s passing through the criminal justice system has always been high, but more education and awareness has helped lawyers and judges better identify them in recent years. Properly identifying IST’s is essential to ensuring due process for mentally ill defendants, but it has created a significant backlog of MP’s in jail due to the lack of alternatives to inpatient hospitalization for IST’s. Until recently, restoration had to occur in one of the limited number of state hospitals that generally had only a handful (if any) forensic beds.

And because most IST’s were required to wait in jail for a bed, the “writ list” (named for the writ of attachment on defendants adjudicated incompetent and waiting for a bed) grew to well over a thousand people waiting in jail for beds. Consequently, Disability Rights of Texas filed a lawsuit against the Texas Department of Health & Human Services demanding that IST’s be immediately transferred to a hospital, as is required by statute. The suit was settled with an agreement that IST’s would be transferred to a state hospital within 21 days of adjudication; many were not transferred within that time period, but enough were transferred to bring the number down to less than 900 by 2019. Despite numerous efforts to find alternatives to inpatient restoration, including outpatient programs, diversion programs and increased outpatient services, as of the writing of this paper the writ list has grown to approximately 2500 people; more than 900 of these individuals are waiting for one of the limited beds in a maximum security unit (“MSU”).

Depending on the county, the average wait time is currently up to 500 days for a MSU bed, however some defendants have waited as many as 700+ days; the average wait time for nonMSU beds is over 200 days, but can be over 600 days (i.e. wait times for individuals with intellectual and/or developmental disabilities (“IDD”) is much longer).

Currently, there are 11 state hospitals in Texas: Austin State Hospital (“ASH”), North Texas (Vernon campus), Rusk, Terrell and San Antonio State Hospital take forensic commitments (competency restoration and insanity) and civil commitments (adult and geriatric inpatient treatment). Kerrville State Hospital is forensic only. Big Springs, El Paso, North Texas (Wichita campus), and Rio Grande are civil only. Waco Center for Youth is for children. The 87th Regular Legislature approved funds for planning and land acquisition for a 12th hospital in Dallas with 200 beds, but only 28 are available for forensic commitments and there is currently no estimated date for completion.

Each hospital serves a specific “catchment” area. The ASH service area includes 38 counties for adults, 57 for adolescents, and 75 for children. There are more than twenty private psychiatric hospitals in ASH catchment area, but only ASH provides competency restoration services. The law now allows for restoration in private facilities (if they have a restoration curriculum), but I am not aware of any private facilities taking clients for restoration – most likely because IST’s can potentially be committed for years, which is not profitable for private hospitals.

And while the State has partnered with 5 private facilities to provide restoration services for IST’s, it is only for their initial restoration period (120 days felony, 60 days misdemeanor); they do not keep IST’s for extended restoration periods or civil commitments with charges pending.

Only 5 of the 11 state hospitals take forensic commitments and all but 1 also take civil commitments, thus the forensic and civil patients are fighting over a finite number of beds. When you add to that the fact that forensic commitments last longer – many last a few months and some last years versus most civil commitments, which last only a few days - it is easy to see how

the writ list has grown so long. New IST’s are added to the writ list daily, but the main drivers preventing IST’s from transferring to state hospitals is the number of patients spending in excess of 365 days inpatient at state hospitals and the number of existing beds not being utilized. And like so many other things, the problem has been compounded by the pandemic.

For years, state officials were aware that the state hospitals were literally crumbling down. A few were deemed salvageable with major renovations, but several were recommended for demolition. Those hospitals with habitable units were often not full – despite the increasing demand for beds – because they were under-staffed and hospitals had to close several units.

During the pandemic, beds went offline due to social distancing requirements and increased staff shortages, delaying admissions for new forensic (and civil) patients. As mentioned above, the writ list for defendants charged with violent offenses requiring a MSU is growing, although the number of misdemeanors is decreasing by design, as even the statutes discourage inpatient restoration for misdemeanants due to a lack of beds. North Texas State Hospital (“Vernon”) currently takes the majority of the MSU’s, but in June 2022, they closed to new admissions due to an escape attributed to staffing shortages.

As awareness of mental illness grows nationwide, more attention is focused on the intersection between mental illness and the criminal justice system and many legislatures are increasing funding for treatment programs and services. In Texas, this includes funding the rebuild or repair of several of the state hospitals. Although studies show inpatient treatment is the most effective way to restore competency, it is also the most expensive. Sadly, this means that the more than $1 billion of taxpayer money spent on rebuilding and/or renovating 4 of the existing the state hospitals and building 2 additional facilities, did not result in significantly more

hospital beds and the emphasis has shifted to acute care for MP’s, i.e. quicker turn-around times to move people out of the hospitals and into treatment in the community. The number of additional beds does not even put a dent in the writ list and ASH actually lost beds: ◦ Austin State Hospital - working with Dell Medical School to design and build a 240-bed hospital to replace the current one on campus. Cost: $304.6 million. New beds: 0. Opens June 2023. ◦ Rusk State Hospital - building a new maximum-security unit with 100 beds and a new nonmaximum-security unit with 100 beds and replacing the administration building. Cost: $188.9 million for planning and construction, $7.2 million for admin bldg. New beds: 60 in MSU. Opens: 2023 ◦ John S. Dunn Behavioral Health Science Center – working with UT Health Houston to build and operate a 240-bed psychiatric hospital in Houston’s Texas Medical Center. Cost: $126.5 million. New beds: 264 **Short-term commitments. Completed 2022. ◦ San Antonio State Hospital - building new 300-bed hospital to replace the current facility and renovating another (complete). New Hospital – Cost: $357.2 million. Opens January 2024.

Renovation – Cost: $11.5 million. New beds: 40. Opens March 2024 (new facility) ◦ Kerrville State Hospital – renovating existing campus buildings and add 70-maximum security unit beds. Cost: $30.5 million New beds: 70. Opens: fall 2022 As a result, there is still tremendous pressure to find alternatives to inpatient restoration.

Countless committees have formed to address the issues: what does competency restoration mean? How can we speed up the process? What do we do with defendants that cannot be restored and are unsafe to be in the community? The results coming out of these committees are inconsistent, and in my opinion, many of the solutions are ill-informed and will not improve the problem because of a reluctance to involve/listen to criminal defense attorneys and judges.

They may even make things worse long-term. But fortunately, there have also been a number of positives in some counties, such as increased diversion, mental health dockets/courts and expanded outpatient services. Below I will expand on the nature of the problem, it’s history, proposed soultions and why it falls to defense attorneys and criminal court judges to understand the process and insure due process for their clients.

Overview – the systems

CIVIL COMMITMENTS – the law Commitment based on behavior in community – no criminal charges pending Criteria for commitment: (1) Proposed Patient (“PP”) is mentally ill; (2) as a result of the mental illness, PP is likely to harm self, others or is severely decompensated [§574.034 H&S Code] •

BOP: clear & convincing evidence; result - temporary commitment 45-90d

•

After initial period, hospital can request another temporary or seek an extended commitment (1 year) if: (3) expect PP’s condition to continue for more than 90 days; AND

(4) PP received court-ordered in-patient MH services under §574 or Chap. 46B TCCP for at least 60 consecutive days in the preceding 12 months

Under the civil commitment system, the PP is release by doctor at any stage of the process if the doctor determines that PP no longer meets the inpatient criteria described above and PP is

then transitioned into community services. No action by the court is required. The law requires that a person be treated in the least restrictive environment available, and when I began this work more than 15 years ago, treatment providers had a very different view about when a patient was stable enough to engage in outpatient services. They tended to keep patients longer (i.e. 16 weeks) to properly stabilize them and they tended to take and keep patients for decompensation alone, without them being a danger to themselves or others. They also accepted voluntary admissions - people asking to be admitted for medication management or treatment of symptoms versus those having being court-ordered for treatment.

Now, because of the high demand and low supply of inpatient beds, mental health authorities pressure treatment providers to avoid inpatient admissions whenever possible; however, when inpatient is necessary there is then pressure to keep patients a minimum number of days (3-10 on average in Travis County) and only if there is a substantial likelihood they will harm themselves/others. Patients are less likely to be accepted or kept for deterioration alone.

Temporary civil commitments are fairly rare and often short in duration, unless the person has dementia, a brain injury or is IDD and there are no other safe alternatives. This of course exacerbates the problem of a lack of bed space. Often, you will see commitments happen because patients cannot be forcibly medicated unless under court order and medication is necessary to control their symptoms enough for release, thus the need for a commitment.

In the criminal justice system, there are 2 types of “forensic” commitments: for incompetency and for persons committed following an aquittal due to insanity.

FORENSIC COMMITMENTS – the law Defendant is in CJS with charges pending ◦

IST - “A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceeding against the person.” Chap 46B TCCP ◦

NGRI - To be insane, §8.01 of the Texas Penal Code requires that:

“… at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” Chap. 46C TCCP

Although outpatient treatment is an option in some jurisdictions, most forensic commitments begin inpatient and last much longer than the typical civil commitment. This happens primarily for 2 reasons: 1) the offenses often involve serious behavior, which alarms judges and prosecutors who want to be more certain someone safe before returning them to the commnuity and 2) the defendant’s symptoms are often more serious and harder to bring under control. But mostly, it is because unlike the civil system, with forensic commitments the Court decides a person’s commitment status and the criminal courts expect actual improvement and stabilization. The civil side strives for clinical improvement and stabilization, but once there is no

longer a serious likelihood that the patient will harm themselves or another, the civil system is comfortable releasing them into community services, regardless of whether they are stable enough to fully engage in those services. The criminal courts, however, are much less willing to risk turning less than fully stable defendants over to the civil system and hoping for the best. The criminal courts’ decision is informed by medical testimony, but for an IST, the court decides if a defendant is restored and whether or not they continue to meet criteria for inpatient hospitalization - not the doctor; only the court can terminate a proceeding i.e. dismissing the case if the defendant has “timed out” on their charge (IST’s and NGRI’s can be committed for as long the maximum sentence for the offense charged). For NGRI’s, the treatment team will make recommendations regarding placement and supervision, but only the court can modify a person’s status from inpatient to outpatient (and vice-versa) and/or discharge the acquitted person from supervision, as court feels is appropriate.

Most mentally ill defendants are not IST and very few are NGRI. But the lack of availability of inpatient beds still creates a number of serious problems in the criminal justice system. As mentioned, there are a finite number of beds available and the civil and forensic populations are competing for them, creating a huge waitlist. And while it is costly and inconvenient that people in the civil system often spend a few days in an emergency room waiting for transfer, people in forensic system usually wait months in jail for bed. For many MP’s in jail, their mental illness goes untreated because, even though the law allows for the forced medication of IST’s (in certain circumstances), many jails are not equipped to restrain and inject defendants with medication against their will. This is particularly true in smaller jurisdictions and is especially concerning because prolonged, untreated psychosis damages the brain. This is obviously not good for the health of the mentally ill defendant, but it is also a nightmare for jail/county officials because jails have become de facto mental health providers, often caring for more MP’s than the local mental health authority in many regions. It puts a strain on the jail’s budget, with increased medication, staffing, and special housing costs and increases their potential liability for suicide/in custody deaths. Smaller communities/jails cannot accommodate and/or keep separate or safe inmates with serious mental illnesses. Each stakeholders has a different reason – due process, money, because it is the law and the right thing to do - but everyone wants to move the forensic cases along, which means moving people into treatment.

The tension grows This is not a new problem, but as the number of people waiting for civil and forensic beds hits an all-time high, the blame game has escalated.

The civil system has always quietly blamed the forensic system for the backlog – alleging they keep people in expensive, inpatient beds when it is not medically indicated by civil standards of care, and they do it out of fear or ignorance. They misuse competency to keep people in custody - to lock them in hospitals when they cannot legally keep them in jail – and sadly, this does happen in some communities. The medical providers believe that these individuals can generally be restored to competency with a short hospitalization followed by outpatient treatment. They argue that hospitals are being misused. So, instead of advocating for more beds, they spend a tremendous amount of energy seeking community based alternatives as the solutions to the unacceptably long writ list and the growing problem of patients needing

permanent supportive care, who are not suitable for existing solutions like nursing homes. The pressure is intense, so they are now loudly and directly blaming the forensic system, and the forensic system in Travis County in particular, for the lack of bed space. Travis County is not the largest county in Texas, but it seems to have a large number of people with serious mental illness – some are brought here by law enforcement and/or parole, some come here for better services and some stay here after hospitalizations at ASH. Whatever the reason, the combination of an increased number of people with serious mental illness, a weak civil commitment system, ready access to board certified forensic doctors that understand the law on competency, and judges who expect defendants to receive treatment has led to more IST findings and more people placed inpatient. It also means that Travis County judges are sophisticated enough that they do not automatically accept the hospitals’ recommendations regarding restoration and/or placement, and will entertain evidence to the contrary. Thus, a number of entities and individuals are citing Travis County’s policies (and counties like them) as reasons to statutorily limit the use of inpatient hospitalization for restoration, even though studies show that with inpatient treatment, 70% of these individuals can be restored (versus less than 50% via outpatient).

In response, the forensic system says… many of these individuals do not belong in criminal justice system and are here because the civil system is not adequately addressing their needs.

They are not providing the enough services or the right services and they are not providing enough housing or the right housing (i.e., permanent supportive housing). The civil system is pushing for alternatives (which are a necessary part of the solution) without advocating for additional beds or alternative residential care for certain populations that undeniably need it.

The civil side wants to make all inpatient hospitalizations acute care and limit inpatient stays, by statute, when some MP’s need longer inpatient stays to be stable enough for community treatment. Most people can be stabilized sufficiently in 3-7 days, but not all of them. Many IST’s can be restored in under 60 days, but many cannot and need more time to restore – possibly years. And some individuals are just not appropriate for community treatment. Bottom line… the civil system will not keep them, has nowhere else for them, and what they are doing has not worked so far – so why would the forensic system stop using the most effective means of restoring and stabilizing most people? It is not just an extravagance; it is the law. Due process requires that defendants actually BE competent before proceeding.

What we have discovered, as dozens of work groups meet in search of solutions to these problems, is that the groups often propose very different solutions and whether those solutions include limiting or changing the court’s power to use inpatient treatment, usually depends on the composition of the group. In my experience, the greatest obstacle to gaining consensus is that the 2 sides (medical and legal or civil and forensic) do not agree on the meaning of competency restoration. So, the recommended solutions depend on the number criminal lawyers/judges versus doctors/mental health providers that are in the group. Not surprisingly, it is very difficult to find the best solutions when the stakeholders cannot agree on the fundamental issue of - what does it mean to be incompetent and thereafter restored under the law?

For the forensic side, this is clear – competency is a legal question. The judge’s decision is informed by evidence in the form of medical opinion, but due process requires a defendant be competent under the law and 46B of the Texas Code of Criminal Procedure lays out the law. We wrote the law, we understand it, and know what is required. But the medical side, accustomed

to civil proceedings, seems to feel that while competency may technically be a legal issue, they are better positioned to decide who is appropriate for inpatient or outpatient treatment. They focus on a small section of 46B and overlook the detailed list of specific criteria doctors must consider when evaluating for competency. Only a few psychiatrists are forensically trained and only a handful are board certified. The code of criminal procedure requires evaluators have specific training, but it is very difficult for smaller jurisdictions to access qualified doctors. And as the forensic cases take up more hospital beds, more doctors without forensic training are treating and attempting to restore IST’s. The state hospitals have no curriculum to follow, resulting in very uneven and inconsistent opinions. More than a few IST’s are sent back to the jails, declared restored by the hospitals, when they are actually still incompetent. Defense attorneys and judges more familiar with mentally ill defendants and laws dealing with competency know to object and seek their own re-evaluations, but far too many others do not and feel that they must just “make the best of it” and proceed with their case.

The arguments: Doctors/MHA

Judges/Lawyers

Medical professionals are in best position to determine if MP/IST’s need in-pt or long-term residential care.

Doctors take oath – do no harm so release everyone you can; pressure from MHA to turn over beds

Judges/lawyers misunderstand CR and are misusing valuable bed space as warehouse and/or de facto punishment

CR is legal concept - doctors do not understand CR and what DP requires – must actually be competent

Most IST do not require in-pt restoration/need short-term hospitalization, explore other options to reduce number and length of in-pt placements

No other option for some, do not belong in jail or community

Take away criminal court’s discretion – no in-pt for class B misdemeanors, non-violent offenses; shorten restoration periods

Higher rates of restoration from in-pt at same cost in end, civil system failing – cycling because no services and all acute care, no trust; failures pushing MP’s to CJS Explore alternatives, diversion – keep current options until in place; retain discretion.

While both sides agree, outpatient services and alternatives to inpatient restoration are essential and need to be identified and implemented, we must first agree on what we need to achieve.

Since competency is in fact a legal concept, to answer this question we must look to the law, not the medicine. Educating judges, doctors and lawyers is essential to protecting defendants’ due process right to be competent before their case proceeds. But there is an urgent need for the lawyers and judges to be aware that the medical side is and has been lobbying for years to implement statutory and other changes that will curtail defendants’ rights and it is up to us to stop them.

More of the law Art. 46B.003(a) says “A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceeding against the person.”

A defense attorney will tell you the key component of this test is the IST’s ability to work with their lawyer. That is why it is stated in both the definition of competency and the standard/test of 46B.003. But what does that mean? “Sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding” is not defined in code. But the code does spell out the elements evaluating doctors must consider in rendering their opinion on a defendant’s competency in Art. 46B.024: Factors Considered in Examination. The components are: ➢

Defendant’s capacity to: Rationally understand charges and potential consequences; Disclose pertinent facts, events, and states of mind; Engage in reasoned choice of legal strategies and options; Understand adversarial nature of proceedings; Exhibit appropriate courtroom behavior; and Testify

➢

Whether Defendant mentally ill

➢ The degree of the impairment and the specific impact on Defendant’s capacity to engage with counsel in a reasonable and rational manner ➢

“Other issues” expert determines are relevant

** Note: level of offense is NOT a consideration. The test is the same for every offense, big or small.

That seems specific and straightforward – how is there so much disagreement? I think from the defense lawyer’s point of view it basically means: does client know what happened and can client relate that to me? Can the client help me evaluate the case and potential defenses and make an informed (though not necessarily wise) decision on how to proceed? Can the client understand basic concepts regarding evidence, strategy, collateral consequences?

We don’t want this because be helpful or want client to feel included – it is required by due process and the Constitution. So, what’s the problem?

To really understand the disconnect, we need to think about how we restore competency – through classes and medication. Competency restoration has an educational component and a “clinical improvement” component, and this is where things go sideways. For awhile now, doctors have been propagating the notion that competency restoration is primarily an educational process, so the classes are the key; once they memorize the different pleas, understand the roles of each actor and the order of proceedings, and achieve appropriate

courtroom behavior, they are restored. This is obviously a very narrow (and incorrect) reading of the requirements of 46B. By definition, competency restoration “means the treatment or education process for restoring a person’s ability to consult with the person’s attorney with a reasonable degree of rational understanding…” 46.B.001 TCCP. So of course, defense lawyers and judges expect that treatment and improvement is the goal – it is first word of the definition. Clinical improvement not just expected, it is required. So again, where is disconnect? How can doctors think that clinical improvement is just a fortunate, but unnecessary, by-product of the restoration process, instead of striving for clinical improvement as the primary goal? The cynical response is that it is often much faster and easier to pass the educational component of the “test” because you do not actually need much or any clinical improvement of your symptoms, you just need repetition. With so much pressure to free up bed space, doctors are working to restore people and turn over beds as quickly as possible. I think that there is an element of that at play, but I also believe it is more because the doctors do not understand what we do because many of the doctors providing restoration treatment do not often appear to testify at criminal trials or contested hearings. They do not understand who makes the decisions in criminal cases (or what the decisions are, in some instances) and they seem to assume that the lawyers make all of the important decisions. Thus, it is the doctor’s job to get clients stable enough to plead to the deal the lawyers negotiate.

Obviously, that is not way it works because the client must make certain decisions regarding testifying, accepting a plea or having a trial, waiving jury, and whether to even use mental health issues in their defense, including insanity. Is Client able to understand reality of situation, the likely consequence of decisions, weigh the odds of pursuing a defense or course of action? If they cannot, they are not competent, and we cannot plead an incompetent client. Equally important, our clients do not always plead upon their return from the hospital, especially if there is serious felony charge, which is often the case with inpatient IST’s. They may wait in jail for awhile before disposition of their case for any number of good and/or unavoidable reasons i.e. exploring an NGRI, which cannot be done until the client is competent.

Not many defense attorneys are being asked to weigh in on this issue at the various restoration committee meetings, but they need to be aware that this is happening and work to educate themselves and their judges as to what the law requires. Lawyers need to push back if they believe the state hospital has incorrectly opined their client competent. The treatment teams often do not know any more about the criminal case than what they read in the probable cause affidavit. So, they cannot discuss specific case facts and details with the client, triggering responses that suggest the client remains incompetent. Defense attorneys do not need weekly or even monthly check in’s with hospitalized IST’s, but they should open a line of communication with the client’s treatment team and continue to make their own assessments of the client’s competency. Upon receiving a formal or informal opinion that the client is restored, defense counsel should speak with the client and form their own opinion. If a formal opinion is returned to the court, defense counsel must file a timely objection and request a re-evaluation if they believe the client is still incompetent. Thus, Defense counsel should not wait for the client to be returned to the jail before speaking with the client and evaluating their competency.

On the flip side, defense counsel must also protect their clients from being improperly detained in hospitals and jails. Judges and prosecutors are elected officials and some misuse their

power to keep people they perceive to be dangerous or crazy off the streets. Defense counsel must challenge efforts to continue inpatient hospitalizations for defendants that do not meet criteria and come up with plans for clients that are opined not likely to be restored to competency; a strong release plan can mean the difference between a dismissal and the civil commitment of a client with charges pending.

Travis County BHJAC workgroup recommendations Many groups have discussed the issues surrounding competency restoration and made recommendations. From what I have seen, it has been a mixed bag - several of the recommendations are good, but in reality, many just sound good and will not significantly reduce the writ list or stem the flow of MP’s into the criminal justice system. A lack of understanding as to what due process requires and a lot of misinformation about competency restoration has led to a lot of bad ideas that keep getting recycled and proposed.

The good news is that at the end of the day, we agree that we need to stop criminalizing mental illness and find better ways to deal with MP’s other than through the criminal justice system. We need to prioritize funding of community services and diverting the mentally ill out of the forensic system and find ways to improve and streamline the competency restoration process.

In response to recommendations proposed as part of the ASH redesign, the Travis County Behavioral Health and Justice Advisory Committee (“BHJAC”) offered several suggestions for improving the way people with mental illness move through the criminal justice system, including changes on the civil commitment side and the addition of meaningful community services and housing. I will conclude with a list of those recommendations.

Intercept 3 recs 1) Identifying and funding alternatives to incarcerating mentally ill individuals, including diversion from the criminal justice system (“CJS”) into community-based treatment services wherever appropriate, forgoing unnecessary efforts for competency restoration (“CR.”) 2) Rigorously tracking and testing the effectiveness of existing programs like Assertive Outpatient Treatment (“AOT”) or Assertive Community Treatment (“ACT”) for effectiveness and demanding change/improvement when necessary, before increasing or renewing funding. Seek to partner with other treatment providers, in addition to the local mental health authority.

3) Funding appropriate secure, structured settings for IST’s that are unlikely to regain competency and civil patients, who are not safe in the community and do not belong in the jails or prisons, including permanent supportive housing.

4) Allocating sufficient funding and beds to continue using hospitals to treat the above individuals until appropriate alternatives are in place. Prioritize securing this funding.

5) Securing funding to increase community treatment options and less restrictive residential placements (like respites and out-patient facilities), as alternatives to in-patient CR or a stepdown from in-patient.

6) Do not eliminate or restrict any options or a court discretion to utilize any option until alternatives are funded and in place. Do not seek to limit court’s ability to utilize options based on category of offense - allow courts to rely on medical evidence and safety to determine appropriate setting and need.

7) Encourage a multi-tiered approach to CR such as: a. Diverting where possible and re-evaluating for later diversion at multiple points throughout in the CJ process; b. When not possible, consider outpatient first for less serious/non-violent offenses, where IST’s have less criminal history, a better history of treatment/medication compliance, no significant substance abuse history and are likely to comply with court-ordered treatment; c. Start medication for incarcerated clients ASAP and consider jail-based restoration as an initial option for IST’s whose primary barriers to CR are volitional/behavioral; seek forced medication orders. Place these IST’s on the list for in-patient hospitalization and remove them if jail-based efforts are effective. d. Use hospitalization for more serious/violent offenses, IST’s with psychotic disorders, cognitive impairment, IST’s that are non-medication compliant and/or are not restoring on medication in the jail awaiting transport. Promote stepping patients down to outpatient programs, as appropriate, where stability is improved, and clinical progress demonstrated.

8) Demanding greater accountability for inpatient treatment providers (hospitals) for lack of progress toward restoration. Pushing for earlier requests for court-ordered medications for noncompliant patients and audit patient files for efforts to change medications and treatment approaches sooner, when progress is stalled.

9) Increasing the number and length of inpatient civil commitments to increase stability and chances for successful treatment in the community, avoiding involvement in the CJS and increasing CJS trust in civil process (for diversion).

One of the ASH re-design workgroups made the following recommendation: 1. Establish a Competency Restoration Continuum of Care on ASH Campus 2. Develop Competency Restoration Curriculum and Training Committee for all state hospitals 3. Improve working conditions and compensation for ASH social workers and psychiatrists to address staff shortages 4. Supportive Housing on ASH Campus 5. Reforms to civil commitment system 6. Develop framework for increased communication with criminal courts regarding competency restoration progress for individual defendants beyond statutory requirements.

7. Provide access to video communication for defense attorneys and clients as well as the ability to conduct virtual hearings and pleas consistent with the Code of Criminal Procedure

Sexual Assault Cases- Post Pandemic Lisa Greenberg Law Office of Lisa Greenberg 622 S. Tancahua St. Corpus Christi, TX 78401 Lisagreenberglaw@gmail.com Rule Number One: Care. Find something to care about with your client- whether it’s the person, the injustice, the unfairness of the system, their mama, babies, something...If you don’t care, the jury wont. They will sense it.

I.

II.

III.

Where do we start? a. Focus on: i. Motive: just like with children, juries need a motive, otherwise they think that no one would make up such allegations. There is a thought in most juror’s minds that say “No one would make up something like this” unless you tell them why.

1. Look for things such as: “Sunday morning regrets”; cheating on a boyfriend/girlfriend; betrayal, an ex who has moved on; disapproving parents. ii. Impeachment: this is how you win a case of he said/she said. Always think of impeachment. You need to do everything you can to uncover who the accuser is. iii. Telling FULL Story- how do we do this?

1. First client meeting, need all the info; 2. Pay attention to client, does he/she have anything we need to look into? a. Mental health b. Past cases c. Ticks, things that make them appear guilty or something we need to explain d. Appearances e. Who are they?

The Environment – Today’s sexual assault case- what are your jurors thinking? a. Explore this, look on social media; even if you don’t like, you need to know what is out there b. Local news, national news c. Popular tv shows- are there movies about sexual assault we need to know about? d. Me too movement and today’s attitudes towards it.

Pretrial Discovery and Motions- find your impeachment and motive. a. Rule No. 1: do not ever go to trial with only what the state gave you.

b. Reading discovery- make notes- write questions you have about the discovery, what strikes you as odd. Who do you want to talk to further? c. Where do you look: i. Social media ii. Past police reports iii. Other statements about the incident iv. Healthcare records v. School grades, job performance etc? d. Motions: i. Always a discovery motion!

1. I'm asking for MORE- victims compensation act info and claims?

2. HIPAA protected items 3. Any other claims 4. Notes from talks with victims advocate coordinators 5. Any other state agency info- DFPS, AG’s office, etc. ii. Always 404b, experts, etc. iii. Info on Witnesses IV.

V.

Trial Time: a. Voir Dire: i. What kind of jurors do we want ii. What do we want them thinking about iii. How to tell our story in voir dire: 1. Get permission to Impeach the complaining witness. b. Opening c. Cross d. Experts e. Closing Other considerations:

I. Where Do We Start?

Sadly, there is no correct answer. You will develop your own style and instinct and go from there. For me, I really try to focus in on a motive at my initial client meeting. Ask your client, why is this person saying this about you? Look for life changes. Common ones include: break-ups, new relationships, Sunday Morning regrets, someone drank too much and had poor judgment (this is NOT the same as sexual assault).

Focus on the status of the parties’ relationship. Was it long term? Was someone rejected, did they feel rejected? Is the person who is claiming to be the victim in a relationship where they could be in trouble if they are found out that they had sexual relations with another? Will they be judged by parents, classmates, their friends?

Once we get an idea of what is going on in the situation, see how your client reacts to the charge itself. It will be something you may need to address in voir dire, etc. Sometimes people do not react the way we think they should. Why is your client reacting that way? Is he someone who does not show emotion well? Delve into their background to try and explain why your client’s reaction is the way it is.

A. Impeachment: I begin looking for impeachment info right away. It’s important to get information right as soon as it’s available. Get your client to look at his/her cell phone to look for text messages, photos, anything that shows the plans of what the meetup would be. Would there be drinking?

Drugs? Are the texts flirty in nature. What about directly after. Does the complaining witness seemed frightened? Upset?

I also want all the information I can about who the accuser is. What is their background?

Are they often a victim? Mentally unhealthy or unstable? Do they crave attention? Are they the star student who is seen as a role model and can’t be seen sleeping around etc. You need all of this information to help build your motive and know whether the accuser is trustworthy or not.

B. Telling the FULL Story: This is always our goal. We view the police report and videos as one portion, or a slanted view of the story. We want the jurors to know that we are the ones who will tell them everything, including why these accusations are occurring. We do this by doing our pretrial investigation and knowing more than the prosecutors and the cops on the case. To do this you need the following:

1. Make sure you build rapport and trust with your client so they tell you and give you everything, good, bad and ugly.

2. Does client have any issues we need to look into? a. Easily deceived? Always used by girls, etc b. Mental Health issues. c. Past cases/ accusations d. Do they have any ticks, things that make them appear guilty. e. Appearance of client, appearance of accuser. f. Know who your client is, how they grew up, how they experienced this situation and what is at risk for them.

II. The Environment Today and the Effect of it On Your Jury: If your head has been in the sand about today’s news, culture etc. About sexuality and sexual assault cases, you’ve done a disservice to your client. We have to be aware of the media around these issues and the public’s reaction to such cases.

We have to explore the publics reactions to famous cases of sexual assault, trials, etc. We need to look on social media, even if you don’t like social media, it is your job to know what is out there. How are. young people reacting? Older people? The public in general. Think of the #metoo movement. The movement itself caused a reaction in the public, as well as the criminal justice system. When was your case indicted? Same time period? Look at famous cases such as Bill Cosby, Harvey Weinstein, Larry Nassar. The recent case of Johnny Depp v. Amber Heard showed a shift in the public’s reaction to these cases. The public seemed willing to be more critical of the complainant than previously.

Locally you need to be aware of your jury panels beliefs on these cases. Is your jurisdiction conservative or liberal on these types of cases (think Austin v. Lubbock). Do you have many young people who tend to be in your venire? What are their thoughts on these cases? Is there a predominant religion in the area that may affect their views? Remember, this is never about what YOU believe, it’s about picking the right jury to receive the story you are telling and how to frame that story.

III. Pretrial Discovery and Motions: Every time I stand before a group of defense lawyers and talk, I adamantly say: Except on very rare occasions, if you are relying solely on what the State gives you in evidence, you are probably ineffective and not doing your job. We need to be asking for more and doing the work to make the State get it and to be thorough, prepared and informed.

A. How I start: Once I have spoken to my client, I have an idea of where I am going with the case. Once I read the discovery, I begin making a list on the side of things I’m looking for. These items usually include things such as: any victim’s impact compensation, all communication with DA’s office, full medical records, photos and any video statements made, etc., I want her school records, any mental health records and counseling notes, etc. I’m looking for different variations of her story, any inconsistencies, inconsistencies in her grades, seeing if her mental health has been affected etc. Another place to look is for reasons for the sexual assault claims. I have cases where my clients have gone to their college health clinic for the morning-after pill, or to check

for STD’s. Those records may go to their parents to pay for, but if they are victims of sexual assault- those items are covered by the State. Dig, it can only help and at worst, you are prepared for the worst.

B. Where do you look?

This is the fun part. You get to be the detective! Let’s see what evidence we can find to prove our theory of the case is correct. Remember, talk is cheap- but backing it up with evidence helps the jury follow us as the honest guide in the courtroom.

1. Social Media: this is my favorite. Look for posts garnering sympathy (motive) or going out afterwards (not too bothered); look for bruising, etc. If they look fine, it helps you. I have a case where the complaining witness stated she was beat and hit in the head. On Tik Tok, she recently claimed she was a victim of kidnapping, the story has evolved.

2. Past Police Reports: I like to see if the complaining witness likes to call the police, claims to be a victim often, etc. I had a case once where the complaining witness claimed she was raped at a party by two classmates. In a later police report from the same address she claims she was the victim of a purse theft. The importance of this was that she returned to the address of the person she claimed raped her for a party.

3. Other statements about the incident: Where do we find this? Start at the initial report. Then the complaining witness’ statement. Any info given in medical records. Then look at statements given to advocates such as rape advocates, police, DA’s victim advocate coordinators. Get all of the notes in your discovery motions. Compare them.

4. Healthcare records: Look beyond the initial medical records. Get counseling records, follow up records, etc. Get all the counseling records, from before and after. Sometimes people claim to be victims of similar instances prior to your case.

5. School grades, job performance, etc.: If your complaining witness is talking on social media or to the victims’ advocate coordinators about how traumatized they are, why take them solely on their word? You know the State will have some expert or testimony on this trauma. Show that it really hasn’t affected them as much as they say. Look to school records, job performances, social media to see if they are still going out, being social. It’s worth it to know the full story and the jury will want to know this as well.

C. What Motions do I Use? As I stated before, I always file additional motions. In all cases, you should file the Standard Morton Request, this triggers 39.14. In addition, I file my 404b notice, my expert notice, etc.

1. Outcry notice- remember, the State will try to pile these on, make sure you get them to limit the outcry to one if it is a child, and if not, make sure you are not getting repeated outcries or bolstering through the many people the State attempts to use to do this. Look at the following: rape victims advocate, medical care provider, friends, roomates, etc.

2. Discovery motion: I do one of these in EVERY case. I’m asking for more here, things I cannot get on my own, such as HIPAA protected items. Typically, in these cases, the State will claim the complaining witness is traumatized and needs counseling. I will need them to get me those records. I can ask for them to be filed under seal with the judge or a protective order, but I still need them and need to see any recounting of the incident, whether the story changes, etc. a. I usually ask for any other claims made by this complaining witness. The State will have to INQUIRE as to whether any were made by this complaining witness. I like for them to document the complaining witness’ answer to the inquiry. Then, on my own, I will do a public

information request for that name with the PD, or get my investigator to do our own search.

That way if she does not claim it to the DA I have created impeachment info. b. I always ask for notes from the DA, victims advocate coordinators etc. I am asking for the State’s Victim’s Compensation fund info etc. I want all notes, every communication, etc. Is she calling weekly to push the case (may show motive), etc. c. Any other State agencies’ info. Are their children involved? Was DFPS involved? Ag’s office etc.

3. Make sure you ask for their expert info with a deadline!

4. All info on any witnesses who may testify, notes from their interviews and criminal histories.

IV. Trial Time: A. Voir Dire: What kind of juror do we want? What are we trying to do here. a. Build doubt, build skepticism and tell our clients’ story b. Get permission to cross the CW, impeach. c. Get the jurors thinking about any “experts” the State may use and whether they in fact are hired to bolster the State’s case B. Opening: I do not agree with those who waive opening to avoid having the State know where they are going. I understand the theory, and it may be appropriate in rare cases, but here, we’ve done our work. We know our theme, our motive of why the complainant said what he/she did and we want the jurors to know exactly what to listen for. We’ve put that idea in their heads during Voir Dire. Know we must tell them exactly what our story is. I believe every time we stand up, in voir dire, in opening, even in our objections we are repeating our story. This opening statement portion is where we really get to tell them what happened. Don’t waste that opportunity! Stand up and say it. I rarely waste time with formalities, I jump right in. I want them to hear me, hear my client’s story. This also lets them know what to listen for when all the witnesses testify. Did the cops do a thorough investigation or listen to one side? Did the complainant leave out details? Why? Did the investigators look for other reasons, motives for the complainants’ story?

What did the investigation miss? Here you tell them.

C. Cross: When I was a newer defense lawyer, cross really intimidated me. Now I love it, this is also an opportunity to tell your client’s story. With each witness, I have a clear path of where I’m going and my goals. When I begin my cross, I write three main goals on the top of my paper. Most of the time in cases like this it looks like this for each witness.

1. Investigator: tunnel vision, did not look for alternatives, did not look at my client’s story or for a motive.

2. Complainant: You must choose your style for your complainant carefully, sometimes a soft cross can work. You are developing your motive here. Consider the fact that they may have been angry, jilted, see your client with another mate. Perhaps they are embarrassed, ashamed that they agreed to some sexual activity they are not proud of. Maybe their friends or classmates knew and now they have to say they did not consent to feel less ashamed. Could it be that they are afraid their parents, authority figures would know what they did. Remember, poor judgment is not the same as lack of consent.

D. Experts: Experts are often used by the State to say that whatever the complainant does is consistent with someone who has been sexually assaulted. We must debunk this junk science.

Make sure you know what that expert has testified to previously in other cases. Where do they work? Explore their bias. Have they interviewed this complaining witness or are they just hired to say the one thing, without regard to the facts in your particular case? How much research did they do on these facts. Did they look at motive? Did they speak to your client? This area can also be flushed out in voir dire.

E. Closing: I love closing argument. Just like with opening you are telling your client’s story. Now you get to add all the gusto and information received during the cross examinations and any evidence you put on. Here you can show things such as: The officers’ lack of investigation into any motive or alternate theories; the complainants lack of candor, the jumping to conclusions and rush to judgment of your client. Here you make the jury feel what It's like to have your life, liberty, reputation etc. On the line because of one person’s statement about what they say occurred and why they may have left out facts or told lies. Here you do not waste time with thanking the jury. You emphasize that now is the only time the full story was heard and how these jurors can do the right thing because they took the time to hear it. You make them feel what it’s like to be in fear of not being able to prove a negative nor having the opportunity to be heard and you let them know exactly how they can make it right.

V. Other Considerations: There are many cases that do not fit the mold of the typical sexual assault case. You may have to address these things head on in their uniqueness. There are times there are multiple complainants. Is your client a wealthy doctor? Did the news broadcast this case and cause others to jump on board? Was there a nasty rumor about your client that caused others to say that their once consensual relationship was no more? Think of the #metoo movement, and instances where people originally said they consented to sexual encounters but after others stories came to light they believed that they were influenced to do things they normally would not do to get ahead in their careers, etc. We have to be willing to talk about these things, head on- because those do not necessarily equal sexual assault.

Look at the timing of your allegations in reference to your case and what is going on in the world around that time. Look at tv shows, media etc.

DISCOVERY UNDER THE MICHAEL MORTON ACT E. Alan Bennett The Michael Morton Act “removes procedural hurdles to obtaining discovery, broadens the categories of discoverable evidence, and expands the State's obligation to disclose. Further, the State's new, broader obligations apply prior to trial, continue after conviction, and must be complied with quickly.” Watkins v. State, 619 S.W.3d 265, 278 (Tex. Crim. App. 2021). The MMA “radically changed the criminal discovery process in Texas.” Cynthia E. Hujar Orr and Robert G. Rodery, The Michael Morton Act: Minimizing Prosecutorial Misconduct, 46 ST. MARY’S L.J. 407, 409 (2015).

This paper explores how Texas courts have construed and applied the MMA.

I.

OBTAINING DISCOVERY MMA requires defense counsel to submit a “timely request” to the State for

discovery. TEX. CODE CRIM. PROC. art. 39.14(a). As with preserving error at trial, courts have construed this to mean that counsel must submit a specific discovery request designating the item or items sought. Davy v. State, 525 S.W.3d 745, 750-51 (Tex. App.— Amarillo 2017, pet. ref’d); Hinojosa v. State, 554 S.W.3d 795, 797 (Tex. App.—Waco 2018, no pet.).

Do NOT file a motion for discovery. First, it is not required by MMA. And second, a motion for discovery that is not ruled on by the trial court requires nothing from the State under MMA. Majors v. State, 554 S.W.3d 802, 807-08 (Tex. App.—Waco 2018, no pet.).

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Something to consider: When certain discovery requests are made to the State or subpoena applications filed with the district clerk, they may disclose a defensive theory of the case. The Amarillo Court has approved a procedure for ex parte orders to obtain records unbeknownst to the State. In re City of Lubbock, 2021 WL 3930727, at *5-6 (Tex. App.—Amarillo 2021, orig. proceeding). The Amarillo Court held that the trial court did not abuse its discretion by issuing an ex parte order outside the bounds of MMA directing the City of Lubbock to produce all records related to the child complainant where she was reported to be a victim of sexual abuse.

II.

THE PROSECUTOR’S RESPONSIBILITIES UNDER MMA When the prosecutor receives a sufficiently specific discovery request, the

prosecutor has a duty “to timely search out discovery that may be in the State's custody, constructive possession, or control and then to provide it to the defendant in a timely manner in response to a discovery request. It is no longer sufficient for the State to wait until it gets ready, or when the prosecutor decides to prepare the case for trial, to then search out and produce properly requested discovery. Rather, once discovery of an item is requested, the State now has an affirmative duty to search for the item and produce it to the defendant in a timely manner.” State v. Heath, 642 S.W.3d 591, 597 (Tex. App.— Waco 2022, pet. filed).

MMA requires the disclosure of documents or things “that constitute or contain evidence material to any matter involved in the action.” TEX. CODE CRIM. PROC. art.

39.14(a). This means any evidence that has “a logical connection to a consequential fact” and is synonymous with “relevant.” Watkins v. State, 619 S.W.3d 265, 290 (Tex. Crim. App. Discovery under the Michael Morton Act

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2021). So, regarding the punishment phase, this includes documentary evidence related to prior convictions and other extraneous offenses such as booking records, pen packets, and judgments. Id. However, the prosecutor has no responsibility under MMA to create a document it does not already have. In re State ex rel. Best, 616 S.W.3d 594, 600 n.4 (Tex. Crim. App. 2021); Coleman v. State, 577 S.W.3d 623, 634 (Tex. App.—Fort Worth 2019, no pet.). This means the prosecutor has no duty under MMA to run criminal histories of State’s witnesses. Coleman, 577 S.W.3d at 625.

Conversely, the prosecutor can be ordered without violating MMA to winnow from voluminous records produced in discovery the parts the prosecutor actually intends to offer at trial. In re State ex rel. Skurka, 512 S.W.3d 444, 455 (Tex. App.—Corpus ChristiEdinburg 2016, orig. proceeding) (prosecutor ordered to identify which of more than 1,000 jail calls they intended to offer at trial).

A split of authority exists regarding whether a prosecutor can be ordered to produce under MMA the underlying facts and data a State’s expert relies on to support their opinion. The El Paso Court has held that materials relied on by gang experts can be subject to disclosure under MMA. In re State, 2020 WL 5105215, at *8-9 (Tex. App.—El Paso 2020, orig. proceeding). But the Dallas Court has reached the opposite conclusion.

Reyes v. State, 2021 WL 2947664, at *4 (Tex. App.—Dallas 2021, no pet.) (mem. op.) Either way, the defense has a right to a voir dire examination of the expert outside the presence of the jury regarding the underlying facts and data under Rule of Evidence 705.

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III.

DEFENSE COUNSEL’S RESPONSIBILITIES UNDER MMA MMA prohibits defense counsel from disclosing items received in discovery to

anyone else (including the defendant) absent a court order or unless the item(s) in question has already been publicly disclosed. TEX. CODE CRIM. PROC. art. 39.14(e). While counsel may allow a client to review discovery materials, defense counsel must redact personal identifying information from the materials before doing so. TEX. CODE CRIM. PROC. art. 39.14(f). However, defense counsel may provide a copy of a witness’s own statement to them. Id. The State Bar Ethics Committee has similarly concluded that, when a former client convicted of a criminal offense requests their file, MMA prohibits counsel from furnishing to the client any matters furnished to counsel pursuant to MMA. TEX. COMM. ON PROF’L ETHICS,

Op. 657 (2016). This would apply equally to a former criminal defense

client who was not convicted.

Regardless, a violation of these restrictions will not necessarily result in disqualification of retained counsel—but it could. Love v. State, 600 S.W.3d 460, 464 (Tex. App.—Fort Worth 2020, pet. ref’d).

IV.

ENFORCING COMPLIANCE WITH MMA To begin with, a trial court has jurisdiction to enforce compliance with MMA only

after indictment. In re State ex rel. Munk, 494 S.W.3d 370, 376 (Tex. App.—Eastland 2015, orig. proceeding).

Before trial, a motion to compel discovery can be employed if discovery has been requested but items have been withheld.

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Courts have implicitly approved a motion to suppress evidence as an appropriate procedural vehicle to seek the exclusion of evidence that is not timely disclosed. See State v. LaRue, 152 S.W.3d 95 (Tex. Crim. App. 2004); State v. Heath, 642 S.W.3d 591, 594 (Tex. App.—Waco 2022, pet. filed).

When the prosecutor has not wilfully withheld evidence but the defendant is unfairly surprised because of the State's failure to provide disclosure sooner, the appropriate remedy is a continuance to provide the defendant an opportunity to review the evidence. Bailey v. State, 2016 WL 921747, at *8 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (mem. op.) (citing LaRue, 152 S.W.3d at 100).

Thus, a complaint regarding disclosure of documentary evidence (arrest warrant) on the first day of trial was waived because defendant failed to request a continuance.

Rodriguez v. State, 630 S.W.3d 522, 524-25 (Tex. App.—Waco 2021, no pet.).

A continuance motion based on untimely disclosure must be written and sworn under Chapter 29 of the CCP or nothing is preserved for review. Hernandez v. State, 610 S.W.3d 106, 112 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d); Prince v. State, 498 S.W.3d 116, 121 (Tex. App.—San Antonio 2016, no pet.).

However, the Waco Court has more recently held that a continuance motion was not required where the trial court acted within its discretion to exclude a 9-1-1 recording that was not disclosed until less than a week before trial. Heath, 642 S.W.3d at 598.

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V.

CONSEQUENCES FOR NON-COMPLIANCE WITH MMA There are several potential consequences that may flow from a prosecutor’s failure

to timely comply with the requirements of MMA. They range from exclusion of the evidence in question to dismissal of the case for speedy trial violation.

A. Exclusion of Evidence Under pre-MMA cases, the Court of Criminal Appeals held that a trial court could exclude evidence for a discovery violation only if the prosecutor had willfully withheld the evidence in violation of the discovery order. We presume that courts will continue to require a finding of willfulness before exclusion is warranted.

Since at least 1978, the Court has held that a willful violation of a discovery order requires exclusion of the evidence. Hollowell v. State, 571 S.W.3d 179, 180 (Tex. Crim. App. [Panel Op.] 1978). But the failure to exclude such evidence is subject to a harm analysis.

Conversely, “[e]xtreme negligence or even recklessness on the prosecutor's part in failing to comply with a discovery order will not, standing alone, justify the sanction of excluding relevant evidence.” Francis v. State, 428 S.W.3d 850, 855 (Tex. Crim. App. 2014).

However, “[n]egligent or reckless failure to comply with a discovery order may call for the exclusion of evidence if the appellant suffers some disability by virtue of the lack of discovery and the trial court takes no timely corrective action.” Francis, 428 S.W.3d at 855 (citing Oprean v. State, 201 S.W.3d 724, 730 (Tex. Crim. App. 2006) (Cochran, J., concurring)).

What Judge Cochran said in Oprean (where the prosecutor failed to disclose a video until the 4th day of trial) was this: Discovery under the Michael Morton Act

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Under these circumstances, the trial judge had the discretion to do one of two things: (1) exclude the videotape because it had not been produced in a timely manner to allow the defense to see it and digest its import before the punishment phase started; or (2) declare a short recess for the defense (and the trial judge) to view the videotape and prepare for the State's offer.

Oprean, 201 S.W.3d at 730 (Cochran, J., concurring) How does a court determine if a prosecutor has willfully withheld evidence?

The prosecutor’s willfulness turns on “whether the prosecutor acted with the specific intent to willfully disobey the discovery order.” Oprean, 201 S.W.3d at 727. “[T]he validity of the explanation offered by the prosecutor is a relevant factor that should be considered when determining willfulness.” Oprean, 201 S.W.3d at 728.

The Court found the requisite willfulness in Oprean where the State had been ordered to disclose all video recordings no later than 10 days before trial but did not produce the video in question until the 4th day of trial, immediately before the punishment phase was to begin. Defense counsel had asked the prosecutor the evening before what she intended to offer at punishment, and she replied that she planned to offer only the judgments and sentences reflecting prior convictions. The next morning, defense counsel learned just before trial resumed that the prosecutor intended to offer video evidence depicting one of the prior convictions. The trial court overruled defense counsel’s objection to the admission of the recording. The trial court also denied a recess.

The Court of Criminal Appeals held that this was a willful violation of the discovery order and that the video recording should have been excluded. The Court so held for 2 reasons. First, the Court found willfulness because the prosecutor was directly asked what her plans were the night before and she responded that she intended to offer Discovery under the Michael Morton Act

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only the judgments and sentences. Second, the Court found that her explanation for not furnishing the video in discovery was invalid. The prosecutor claimed that she did not furnish the video because the discovery order was silent as to article 37.07 punishment evidence and defense counsel had not made a request for notice under article 37.07.

However, because the discovery order did not include or exclude punishment evidence, it was not limited to guilt-innocence evidence. “Because the prosecutor knew about the discovery order and chose to invoke Article 37.07 after counsel called her attention to the order, she made a conscious decision to violate the plain directive of the discovery order.”

Oprean, 201 S.W.3d at 728.

Conversely, the Court of Criminal Appeals has refused to find willfulness on 2 other occasions. In LaRue, the prosecutor failed to furnish copies of 2 sets of lab reports in a capital murder case for over 7 months despite several requests by defense counsel for the evidence over that period of time. The prosecutor turned over one set of lab reports a month before jury selection commenced and the second set (DNA reports) on the day of jury selection. Over 2 weeks later, the prosecutor notified defense counsel of another hair recovered from a fingernail scraping and asked if defense counsel wanted it tested. The trial court initially advised the parties that it would discharge the jury and set another trial date. However, after the State objected to this procedure, the trial court granted the defendant’s motion to suppress the DNA evidence.

Helpfully, the Court of Criminal Appeals observed that the prosecutor “should have produced the evidence in more timely fashion, especially considering the repeated

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requests made by defense counsel.” State v. LaRue, 152 S.W.3d 95, 97 (Tex. Crim. App. 2004). But his failure to do so was not a willful violation of the discovery order.

The record demonstrates that the State made what the prosecutor himself described as “grievous error[s] and mistake[s],” but there is no evidence that the prosecutor in this case acted with the specific purpose of disobeying the court's discovery order, preventing the defense from preparing its case, or denying the defendant his constitutional rights to a speedy trial or effective assistance of counsel.

LaRue, 152 S.W.3d at 99.

The Court affirmed the lower court’s decision that a continuance was “the appropriate solution” without expressly endorsing that remedy.

The Court declined to address lesser sanctions because neither party briefed that issue.

More recently, in Francis, the trial court refused to exclude a machete that defense counsel first learned of during voir dire. The trial court granted him a brief recess to examine the machete and confer with his client. Defense counsel then objected to the admission of the machete for willful violation of the discovery order. Counsel characterized the machete as extraneous-conduct evidence because the indictment alleged a knife. The prosecutor responded that the machete was one of two bladed weapons used in the offense. She further responded that defense counsel was aware of the machete because it was referenced in the reports available to him because of the State’s open file policy. (Apparently, defense counsel never asked to inspect any physical evidence in the case.) The trial court overruled the objection.

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The Court of Criminal Appeals observed “the trial court could rationally have concluded that, despite her protestations to the contrary, the prosecutor's behavior constituted “a calculated effort to frustrate the defense [,]” as in Oprean. Francis v. State, 428 S.W.3d 850, 856 (Tex. Crim. App. 2014). But because the prosecutor steadfastly denied any intention to violate the discovery order and because the issue of willfulness is within the trial court’s discretion to decide, the trial court did not abuse its discretion by concluding that the discovery violation was not willful. Id. at 856-57. The Court distinguished Oprean primarily on the basis that the prosecutor had expressly represented when asked that she would only be offering judgments and sentences during the punishment phase—an affirmative misrepresentation.

Notwithstanding LaRue and Francis, the Waco Court held in Heath that exclusion was an appropriate remedy for a prosecutor’s untimely disclosure of a 9-1-1 recording.

In that case, defense counsel emailed a general request for discovery to the prosecutor in March 2017. The parties appeared for pretrial settings on 3 different occasions from September 2017 to February 2018 with all parties appearing ready to proceed to trial. The parties appeared for a pretrial setting on May 11, 2018 and announced ready. The prosecutor first learned that the 9-1-1 recording existed when she met with a witness on May 18 in preparation for trial. She requested a copy and furnished it to defense counsel on May 23. The parties appeared for trial on May 29. The trial court granted defense counsel’s motion to suppress the recording, and the State appealed.

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The Waco Court found a violation sufficiently egregious to support exclusion of the evidence primarily because the prosecutor did not even attempt to ascertain whether a 9-1-1 recording existed until she was actually preparing for trial.

[A] failure to at least inquire about the existence of discoverable items in response to a proper request in a timely manner is all the evidence necessary to show that the failure to timely produce the item in discovery was due to what was previously characterized as a “willful violation” or “bad faith”. The prosecutor need not know what it is that is not being produced, but the failure to even look to see if there is something responsive to the request in light of the duty to search out responsive discovery is adequate for the trial court to fashion a remedy appropriate to the situation.

The trial court has great discretion in determining the appropriate remedy depending on the circumstances of each case.

In a situation where the prosecutor was set for trial and presumably ready to proceed to trial without the evidence on three prior settings, the ruling by the trial court excluding the evidence that was not previously produced, in this instance the recording of the 9-1-1 call, is not an abuse of discretion.

State v. Heath, 642 S.W.3d 591, 597 (Tex. App.—Waco 2022, pet. filed).

B.

Speedy Trial Violation

The Fort Worth Court has affirmed the trial court’s denial of a speedy trial claim where it took a lab 3 1/2 years to perform a DNA analysis of blood on the murder weapon. The weapon was sent to the lab in October 2016. The defendant first asserted a speedy trial demand in March 2019. The lab report came back in August 2019. After that, the defense obtained a cell-phone expert and requested a continuance because of issues in making the cellphone evidence available for his review. The defendant re-urged his speedy trial demand in February 2020. The parties proceeded to trial in March 2020.

On appeal, Fuller argued that the State’s failure to sooner perform the DNA analysis and disclose the DNA report under MMA, violated his right to a speedy trial.

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The Fort Worth Court rejected this contention because: (1) although the 3-year delay in DNA testing was unreasonable, it could not be considered deliberate conduct by the State and was more akin to negligent conduct that did not weigh heavily against the State; (2) Fuller failed to timely assert his speedy trial demand; and (3) Fuller failed to show any prejudice because of the delay. Fuller v. State, 624 S.W.3d 855, 864-68 (Tex. App.—Fort Worth 2021, pet. ref’d).

Conversely, the Austin Court has affirmed a trial court’s dismissal based on a speedy trial violation for a failure to comply with MMA. The defendant Brandley was arrested in February 2016 for misdemeanor assault family violence. The State filed an information in December 2016. The first trial setting was not until June 2018. From 201819, the parties both requested continuances at different settings. In March 2019, defense counsel served a request for exculpatory evidence regarding the complainant. In July 2019, the State disclosed 107 pages of exculpatory information. The trial court heard Brandley’s motion to set aside the information for speedy trial violation a month later and granted that motion.

The Austin Court affirmed observing that the trial court could have concluded that a substantial portion of the delay between October 2018 and July 2019 was due to the State's late disclosure of evidence. Brantley presented evidence of inconvenience (having to report monthly to bondsman), adverse impact on employment, and family hardship and stress, demonstrating that he “had suffered at least a moderate level of anxiety and concern due to the pending charge.” Brandley’s ability to present a defense was further harmed because one witness could only appear via videoconferencing and another had Discovery under the Michael Morton Act

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since become imprisoned and would have to testify as an inmate. These witnesses would testify about the complainant and her violent tendencies as well as statements from the complainant that were exculpatory and other allegations by the complainant that were later dismissed.

The Court observed that a significant portion of the delay, particularly after the case was set for trial in October 2018, was related to the State's repeated late production of possibly exculpatory evidence. . . . Further, Brandley appeared and announced ready several times, asking to go forward with the case and invoking his right to a speedy trial in April 2019, when the State turned over hours of recorded jail calls mere days before the trial setting despite Brandley's having been released on bond more than three years earlier. State v. Brandley, 2021 WL 3437887 (Tex. App.—Austin 2021, no pet.) (mem. op.).

Thus, the prosecutor’s repeatedly late disclosure of material evidence was a factor the court considered.

C.

Mistrial

The Fort Worth Court has held that a mistrial is an appropriate sanction where the prosecutor failed to disclose impeachment evidence—a family-violence packet and a written statement the complainant had given to the police—until the second day of the punishment phase. This of course deprived Hallman of the right to impeach the complainant during the guilt-innocence phase with these materials. The trial court denied his request for mistrial.

[T]he record reflects that the jury's decision was adversely affected by Hallman's being deprived of the opportunity to cross-examine Kim during guilt–innocence with her own written words that contradicted her Discovery under the Michael Morton Act

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testimony and highlighted her questionable credibility. Under Mosley, the nonconstitutional harm that Hallman suffered was severely prejudicial during the critical guilt– innocence portion of the case. In light of all of the evidence and the case's theories set out above in full, Hallman's conviction beyond a reasonable doubt, absent the misconduct, was not certain.

Accordingly, we conclude that the elected judge abused her discretion when she denied the motion for mistrial and that the resulting harm affected Hallman's substantial rights.

Hallman v. State, 2022 WL 2182949, at *30 (Tex. App.—Fort Worth 2022, no pet. h.) (ext. granted).

However, the Houston [14th] Court held that a mistrial was not warranted where the prosecutor’s failure to disclose a cellphone extraction disk before trial was the result of negligence rather than bad faith. In that case, the detective explained that she had previously searched for the disk at the prosecutor’s request and could not find it and concluded that it was misplaced when she left one agency and went to work for another.

She did not find it until during trial.

The Houston Court held that a mistrial was not the appropriate remedy for the mid-trial disclosure of the disk under those circumstances. “The trial court could have reasonably accepted the detective's explanations and found that the untimely disclosure had been the result of negligence, not bad faith.” Hernandez v. State, 610 S.W.3d 106, 11213 (Tex. App.—Houston [14th Dist.] 2020, pet. ref’d) D.

New Trial

The Houston Court also held in Hernandez that the trial court did not abuse its discretion in denying a motion for new trial premised on the mid-trial disclosure of the disk where the defendant failed to allege any facts in the motion or produce evidence Discovery under the Michael Morton Act

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demonstrating that he was prejudiced by the untimely disclosure. Hernandez, 610 S.W.3d at 114-15 E.

Release on Bond under CCP 17.151

A prosecutor’s failure to fully comply with discovery, standing alone, will not rebut the presumption of readiness that arises when the State has timely presented an indictment and the prosecutor has announced ready for trial.

The State indicted Highsmith for murder and announced ready for trial within 90 days after arrest. However, the State conceded that it did not yet have a written report from the medical examiner (and thus had not furnished a copy to defense counsel).

Regardless, the State had autopsy photographs and witness statements and advised the court that the medical examiner could testify about cause of death even without a written report. The Austin Court held that, under these circumstances, the trial court did not abuse its discretion by finding that Highsmith had failed to rebut the presumption that the State was ready for trial. Ex parte Highsmith, 2022 WL 2347904, at *5-6 (Tex. App.— Austin 2022, no pet. h.)

F.

Monetary Damages

The Supreme Court of Texas has held that MMA does not waive governmental immunity and does not authorize civil-damages suits. Hillman v. Nueces County, 579 S.W.3d 354, 360-61 (Tex. 2019).

The Houston [1st] Court has cited Hillman for the proposition that MMA does not authorize monetary sanctions for violations of its provisions. In re State, 605 S.W.3d 721, 727 (Tex. App.—Houston [1st Dist.] 2020, orig. proceeding).

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THC/HEMP TCDLA’S Post Pandemic Trial Prep Seminar September 15-16, 2022 | Round Rock, Texas Presented by: Adam Tisdell Authored by: Donald H. Flanary, III., and Amanda I. Hernandez Flanary Law Firm, PLLC INTRODUCTION It is easy to see that marijuana (a.k.a. weed, Mary Jane, MJ, bud, grass, dope, herb, reefer, chronic, pot… you get the picture) is becoming integrated into today’s society, whether you’re a fan of it or not. Still considered a psychoactive drug, cannabis continues to grow in popularity among recreational and medical users in the United States. As of 2021, eighteen states, two U.S. territories, and the District of Columbia have legalized recreational use of cannabis. There are four main methods of ingesting marijuana: (1) inhalation (smoking or vaping); (2) oral (in the form of edibles, capsules, or oils); (3) sublingual (when placed under the tongue and held in the mouth); and (4) topical (lotions, salves, bath salts and oils that are applied to the skin). In order to best serve our clients, it is important for defense lawyers to understand the different forms marijuana can come in, what it means for our clients, and how recent changes in the law impact marijuana cases.

WHERE DOES MARIJUANA COME FROM? Marijuana is derived from the cannabis plant, which is one of mankind’s earliest crops 1, and has been around for thousands of years. In fact, for a significant portion of modern human history, marijuana had medicinal, spiritual, and recreational uses that date back at least 5,000 years2. Still, its legality has been a topic of controversy in America and even the world for longer than most of us have been alive.

THE MANY FORMS OF MARIJUANA Marijuana today comes in a variety of different forms and as noted above, can now be ingested in various ways. The two most popular forms of marijuana seem to be the actual plant (called flower) and oil that is derived from flower. Inhalation seems to be the most popular method of consumption and is the fastest method of delivery to a consumer. When marijuana is inhaled, the majority of cannabinoids enter the body through the lungs where they are passed 1

Newton, D. (2013). Marijuana: A Reference Handbook. ABC-CLIO: Inc. Santa Barbara, CA. Tackett, Brittany. History of Marijuana. American Addiction Recovery Centers. 31 Oct. 2019. Available at: https://law.uakron.libguides.com/c.php?g=627783&p=6800463.

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along directly into the consumer’s blood stream. Smoking marijuana involves burning the substance and inhaling the active components of the plant that are released. Similarly, vaporization acts in the same way, but instead of being burnt, the substance is heated to a temperature at which the active ingredients in the plant are released as vapor that is inhaled by the consumer. Edibles are also growing in popularity, and the onset for oral ingestion is slower and the effects are stronger and last longer than with inhalation.

Still, there are various forms of the plant and various ways it can be ingested. Below are some of the many examples of substances containing Tetrahydrocannabinol, or “THC,” the main psychoactive compound in cannabis that produces the high sensation.

Traditional Leaves: Dried cannabis flower is the traditional and most common form of marijuana. Marijuana leaves, stems, and buds can all contain THC and can be rolled into cigarettes or smoked with a pipe or bong.

Hashish (a.k.a. “hash”): Hash is made when resin is extracted from the cannabis plant and then dried and compressed. It can be compressed into a variety of forms, including blocks, balls and sheets. It is considered to be stronger than traditional marijuana and can be smoked or mixed with food and swallowed.

Marijuana/Solvent Concentrates: The most popular marijuana concentrates, or extracts, include hash oil, wax, and shatter. Consumers can smoke or vape concentrates from bongs, pipes, vape pens, or other electronic devices. THC extracts are growing in popularity and can be among the most potent of marijuana products. They are made by extracting THC from the cannabis plant with butane, carbon dioxide or other solvents. Marijuana “wax” is sometimes called “budder” or “badder” because it looks like yellow, sticky earwax or melted, pasty butter. Shatter is a hard, solid form of marijuana that resembles amber — fossilized tree resin. Concentrates can also take the form of other products such as Kief or sift, Rosin, Live Resin, Shatter Wax, Crumble Wax, Honeycomb Wax, Pull and Snap, Tinctures, THC Oil, BHOI & CO2 Extract Oil, Rick Simpson Oil, Distillates, Isolates and Crystalline. The term “solvent concentrates” refer to products made using chemicals such as butane, propane, ethanol, etc., which are added to a closed-loop system to extract cannabinoids and terpenes from cannabis plant material.

Dabs/Dabbing: Dabs or dabbing are the names for the use of concentrated butane hash oil and may include products such as Shatter, Wax, Resin, and various types of Hash Oil. Balms/Creams/Lotions: As noted above, marijuana can also be used through topical applications. Topicals are one of the only forms of marijuana containing THC that aren’t commonly used to get high. They’re also a common form of medicinal marijuana. Topicals are used to treat skin conditions, spasms, arthritis, muscle aches and other ailments.

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THE LEGAL DEFINITIONS OF MARIJUANA/THC Old Legal Definition of Marihuana: The “old” legal definition of marijuana comes from Texas Health and Safety Code Section 481.002 and was defined as follows: “Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: (A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; (B) the mature stalks of the plant or fiber produced from the stalks; (C) oil or cake made from the seeds of the plant; (D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or I the sterilized seeds of the plant that are incapable of beginning germination.

New Definition of Marijuana: The new definition of marijuana comes from the same section of the Health and Safety Code and adds to the list of what is not included in the definition of marijuana. Specifically, it adds part (F) as follows: “hemp”, as that term is defined by Section 121.001, Agricultural Code.

Old definition of “THC”: The old definition of THC, pursuant to Texas Health and Safety Code Section 481.002, was defined as follows: “Controlled substance” means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1-A, 2, 2-A, 3, or 4. HSC 481.103, Penalty Group 2, includes THC: Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity.

New Definition of “THC,”: The new definition of THC is still found in that section of the Texas Health and Safety Code, but now specifies that THC does not include “hemp,” as defined

by Section 121.001 of the Texas Agricultural code or the tetrahydrocannabinols in hemp. Note that the definition of “THC” leads to a rational conclusion that there is ALWAYS some THC found in Hemp.

SO, WHAT IS “HEMP” AND WHAT IS “CBD”?

So, what is Hemp? According to Texas Agriculture Code Section 121.001, “Hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

Cannabidiol (often referred to as “CBD”), according to Texas Health and Safety Code Section 443.201, is defined as a “Consumable hemp product” meaning food, a drug, a device, or a cosmetic, as those terms are defined by Section 431.002, that contains hemp or one or more hemp-derived cannabinoids, including cannabidiol.

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What about Delta-8? Delta-8 THC (or Delta-8-tetrahydrocannabinol) is a naturally occurring chemical compound called a cannabinoid that’s found in small traces in hemp and cannabis plants3. Its chemical structure is similar to that of its well-known cousin, Delta-9tetrahydrocannabinol. Its legality is discussed further later in this paper.

WHAT DOES ALL THIS MEAN? What does all this mean? It means that the landscape of marijuana cases and the ways we can defend those cases are changing. It means that the “green, leafy substance” and the “odor of marijuana” that officers and/or canines are trained to identify may no longer be enough for probable cause to search or arrest. On plain view or smell, the substance could be illegal marijuana, but it could also be legal hemp. The difference is in the amount of THC found in the substance. Now, illegal marijuana is Cannabis sativa L. with a concentration of THC over 0.3 percent while legal hemp is Cannabis sativa L. with a concentration of THC under 0.3 percent.

These are not “scientific” definitions, but rather are legislative ones.

THE (MOSTLY) RECENT CHANGES IN ATTITUDES CONCERNING MARIJUANA In the past decade or so, there has been a dramatic shift in the attitude toward marijuana consumption and that shift is starting to be shown in our legal system today. A study by the PEW Research Center in 2019 concluded that two-thirds (roughly 67%) of Americans say the use of marijuana should be legal, reflecting a steady increase over the past decade. The survey revealed that the share of U.S. adults who oppose legalization has fallen from 52% in 2010 to 32% in 2019. 4 While marijuana remains federally illegal (but the definition also now excludes hemp), marijuana laws are changing at a rapid pace across all 50 states. On November 6, 2012, Colorado and Washington became the first two states (and first two places in the world) to legalize marijuana for adult use. As of April 2022, 18 states have legalized the adult use of marijuana for recreational (and medical) purposes: Alaska, Arizona, California, Colorado, Connecticut, Illinois, Maine, Massachusetts, Michigan, Montana, New Jersey, New Mexico, New York, Nevada, Oregon, Vermont, Virginia and Washington. In addition, recreational cannabis is legal in Washington, DC, Guam, and the Northern Mariana Islands. Additionally, 37 states have legalized the medical use of cannabis: Alaska, Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, Virginia, Washington and West Virginia.

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Sreenivas, Shishira. What is Delta 8? WebMd. Medically Reviewed by Pathak, Neha MD. (Jul. 8, 2021). Available at: https://www.webmd.com/mental-health/addiction/what-is-delta-8.

4 Daniller, A. Two-thirds of Americans support marijuana legalization. Pew Research Center. 14 Nov. 2019. Available at: https://www.pewresearch.org/fact-tank/2019/11/14/americans-support-marijuana-legalization/.

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Some states are even going further than just legalizing marijuana. In Illinois, Governor JB Pritzker signed a legal marijuana bill into law which legalized recreational marijuana use but that also contained a sweeping criminal justice component, namely, expunging the records of potentially hundreds of thousands of Illinois residents who have previously been convicted for possessing marijuana under previous laws.

As of April of 2022, only 4 states remain with a “fully illegal” approach to Marijuana: Idaho, Wyoming, Kansas, and South Carolina.

Still, Under the Controlled Substances Act of 1970, the Drug Enforcement Agency still classifies marijuana as a Schedule I drug, “with no currently accepted medical use and a high potential for abuse.” (Other Schedule I drugs include heroin and LSD, while cocaine is listed as a Schedule II drug.)

WHAT RECENTLY CHANGED IN THE LAW Federal Law. Marijuana is federally illegal under the Controlled Substances Act (“CSA”), which was enacted in part to implement the United States’ obligations under the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances. See 21 U.S.C. § 801.

Under the CSA, substances are categorized into five schedules, depending on their therapeutic benefit and their potential to result in abuse, diversion, dependency, and addiction.

Schedule I is the most restrictive and the substances listed as same are said to have no currently accepted medical use in the United States and a high potential for abuse. Schedule II substances similarly have a high potential for abuse, but they do have a currently accepted medical use.

Schedules III–V substances have an accepted medical use and less (relative to each preceding schedule) abuse potential. See 21 U.S.C. 812(b). Marijuana is still listed as a Schedule I substance.

In December of 2018, however, the federal landscape for marijuana changed with the passing of House Bill 1325, known commonly as the “Farm Bill.” The Farm Bill was designed to create a legal hemp market and defined “hemp” as the cannabis plant, or any part thereof, including its extracts and cannabinoids, having a THC concentration of not more than 0.3% on a dry weight basis. See 7 U.S.C. § 1639o (emphasis added). Because of this definition, “hemp” is removed from the legal definition of marijuana and is can no longer be considered a controlled substance under the CSA. While not explicitly authorizing interstate commerce of hemp, the Farm Bill likewise does not authorize the interference with same.

The 2018 Farm Bill requires hemp cultivation to be licensed and regulated pursuant to “state plans” promulgated by a state, which must contain, among other things, provisions for THC testing. It further directed the United States Department of Agriculture (“USDA”) to establish a national regulatory framework for hemp production in the United States. In response, the USDA 5

established the U.S. Domestic Hemp Production Program through an interim final rule. This rule outlines provisions for the USDA to approve plans submitted by States and Indian Tribes for the domestic production of hemp. It also establishes a Federal plan for producers in States or territories of Indian tribes that do not have their own USDA-approved plan. The USDA has authority to issue regulations and guidance, but the law explicitly preserves the existing jurisdiction of the FDA. Cannabidiol (“CBD”) is a non-psychoactive compound of cannabis. CBD was classified in Schedule I of the CSA because it is considered a compound or derivative of cannabis/marijuana.

See 21 U.S.C. § 802. However, as indicated above, the 2018 Farm Bill has de-scheduled hemp as it is defined under that law. Therefore, commercial activity with hemp (including its extracts and cannabinoids) is now lawful. A DEA registration is no longer required to cultivate hemp or to conduct research with hemp. However, if clinical research, i.e., involving human subjects, is involved, an investigational new drug exemption (IND) must still be opened with FDA, and the investigational product must be manufactured in a facility that complies with good manufacturing practice requirements.5 Currently, CBD is approved by the Food and Drug Administration (FDA) as a prescription drug. Per federal law, prescription drugs cannot be added to foods, cosmetics or dietary supplements.

Texas Law. It is still illegal to use or possess marijuana under Texas law, and has been since 1931. What changed last year, however, is how the code defines what marijuana is. The Texas Health and Safety Code now defines “marihuana” as follows: “Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include: (A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; (B) the mature stalks of the plant or fiber produced from the stalks; (C) oil or cake made from the seeds of the plant; (D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; (E) the sterilized seeds of the plant that are incapable of beginning germination; or (F) hemp, as that term is defined by Section 121.001, Agriculture Code.

See Tex. Health & Safety Code Ann. § 481.002.

As you can see, the 2019 definition of marijuana changed to explicitly remove “hemp” from the definition of marijuana. Like the federal definition, the Texas Agriculture Code defines 5

Mead, A. Legal and Regulatory Issues Governing Cannabis and Cannabis-Derived Products in the United States.

Frontiers in plant science, 10, 697. 2019. Available at: https://doi.org/10.3389/fpls.2019.00697.

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hemp as the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, with a THC concentration of not more than 0.3 percent on a dry weight basis.

See Tex. Agric. Code Ann. § 121.001.

This definition was changed when, in an attempt to bring the state in line with the 2018 Farm Bill, on June 10, 2019, House Bill 1325 was signed into law by Governor Greg Abbott. HB 1325 legalized the production, manufacture, retail sale, and inspection of industrial hemp crops and products in Texas. This also includes products for consumable hemp products which contain CBD as well as other edible parts of the hemp plant.

The Texas Department of Agriculture (“TDA”) submitted the state hemp plan to USDA on December 2, 2019, and it was approved by the USDA on January 27, 2020. Administrative rules were published in January 2020 and became effective March 11, 2020. Now that the TDA plan is approved by USDA and the administrative rules are adopted, industrial hemp can be grown and cultivated legally in the State of Texas. Furthermore, per this plan, the regulation of CBD consumables, including CBD oil, will be handled in accordance with Food and Drug Administration (FDA) guidelines. The state agency with oversight of CBD consumables is the Texas Department of State Health Services (DSHS) and not the TDA. At its heart, this new law means Texans should no longer face criminal penalties for hemp or any of its derivatives, including CBD. It is also important to note that medical cannabis is said to be legal in Texas in very limited circumstances. Governor Abbott signed the Texas Compassionate Use Act into law in 2015, allowing people with epilepsy to access cannabis oil with “low THC”. "Low-THC cannabis" means the plant Cannabis sativa L., and any part of that plant or any compound, manufacture, salt, derivative, mixture, preparation, resin, or oil of that plant that contains not more than one percent by weight of tetrahydrocannabinols. See Tex. Occ. Code Ann. § 169.001. In 2019, House Bill 3703 was also signed by the Governor, which expanded the list of qualifying conditions to include diseases such as multiple sclerosis, Parkinson's disease and Lou Gehrig's disease, or ALS. THE LEGALITY OF DELTA-8 So, we know that hemp and CBD, which have a THC concentration of not more than 0.3 percent on a dry weight basis, are legal federally and in Texas. But what about Delta 8 products?

Delta-8 THC is one of over 100 cannabinoids produced naturally by the cannabis plant but is not found in significant amounts in the cannabis plant. As a result, concentrated amounts of delta-8 THC are typically manufactured from hemp-derived cannabidiol (CBD).

Some argue that delta-8 THC is in a “legal gray area.” It is legal to use in most states, largely because it’s extracted mostly from hemp-derived CBD, which is legal to farm across the U.S.6 The 2018 Farm Bill, which removed hemp and its byproducts from the list of controlled 6

See Fn 3.

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substances, doesn’t specifically mention delta-8. Nor does House Bill 1325 in Texas, but hemp advocates and others who sell it have used this loophole to legally market Delta-8 products.

On Oct. 15, 2021, the Texas health agency updated its website to clarify for the public that delta-8 was a Schedule I substance and therefore illegal. It maintains that delta-8, while it was being sold in stores, was never legal in Texas because the 2019 law never mentioned it. CBD and hemp retailers challenged it in court, saying this contradicted what they thought was now legal under federal and state hemp laws. Lawsuits were filed attempting to block DSHS from criminalizing delta-8, and retailers got a temporary injunction on the state’s ban, which so far has been upheld by an appeals court. DSHS asked the Texas Supreme Court to step in and reinstate a ban on the products, but the high court refused the request to hear the case. A final hearing was set for January 2022, but it was cancelled and never took place.

Interestingly, the Texas Tribune reported in November 2021 that DPS had not made a single delta-8 arrest7.

What do the experts say? Recently, TCDLA’s cannabis committee was asked to respond to the Montgomery County District Attorney’s request for opinion on the following questions: Are products containing concentrated or synthesized delta-8 THC still unlawful to possess or sell under sections 481.103, 481.113, and 481.116 of the Texas health and Safety Code? Or are delta-8 THC products no longer subject to prosecution under 481.002(5) of the Health and Safety Code— which excludes “tetrahydrocannabinols in hemp” from the statutory definition of “controlled substance”—if delta-8 THC is extracted or synthesized from lawfully-grown hemp products?

Their answer was summarized as follows: Concentrated or synthesized Delta-8 THC is currently illegal under sections 481.103, 481.113, 481.116 as well as section 481.106 (c) of the Texas Health and Safety Code. The exclusion set out in section 481.002(5) for “tetrahydrocannabinols in hemp” is limited to the minute quantities of delta-8 THC which are naturally occurring in hemp plants. A full text of the response is attached as Exhibit 1.

MARIJUANA PROSECUTIONS IN TEXAS HAVE DECLINED While counties in Texas all treat low-level marijuana cases differently, one thing has become clear across the board: marijuana prosecutions in the State have drastically plummeted since Texas legalized hemp. In January of 2020, the Texas Tribune noted that district and county prosecutors across the state began dropping hundreds of lower-level marijuana cases since the

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Reynolds, Kevin. Texas said delta-8 is illegal. But state troopers haven’t made a single arrest. The Texas Tribune.

(Nov. 11, 2021). Available at: https://www.texastribune.org/2021/11/11/texas-delta-8-dps-arrests/.

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legalization of hemp, which resulted in marijuana prosecutions dropping by more than half8. The article also noted that some district attorneys began requiring agencies to submit lab results proving the suspected drugs had more than .3% THC before the case was accepted for prosecution.9 In fact, even the good folks at the Texas District and County Attorneys Association issued a press release suggesting to its members that such testing is likely needed to prove in court that the seized marijuana substance is illegal.10 In 2019, before the passage of the hemp law, there were about 5,600 misdemeanor marijuana possession cases a month. After the law’s passage, that number got slashed in half, with only around 2,000 cases filed in November 11.

Since the passing of the hemp law, more and more policies across the state started popping up in favor marijuana legalization, or at least de-criminalization for minor amounts of marijuana possession. In July of 2019, Bexar County District Attorney Joe Gonzales joined three other Texas District Attorneys (Fort Bend County, Harris County, and Nueces County) in adopting a policy of not accepting criminal charges for misdemeanor possession of marijuana for amounts of four ounces or less 12. Later that month, even Texas DPS issued a memo instructing its officers to cite and release suspects in misdemeanor marijuana cases (less than 4 ounces in possession cases) “as appropriate.”13 In January of 2020, Austin’s City Council voted unanimously to end most arrests and fines, as well as ban spending city funds on testing, for small-amount marijuana possession cases.14 The police chief was obviously not on board with this decision, however, as evidenced by his response a day later that he would still instruct his officers to issue tickets or arrest people for these offenses.15

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McCullough, Jolie. Marijuana prosecutions in Texas have dropped by more than half since lawmakers legalized hemp. The Texas Tribune. 03 Jan. 2020. Available at: https://www.texastribune.org/2020/01/03/texas-marijuanaprosecution-drop-testing-hemp/.

9 See id.

10 Interim Update: Hemp. Texas District & County Attorneys Association. 24 June 2019. Available at: https://www.tdcaa.com/legislative/interm-update-hemp/.

11 See fn. 5.

12 Statement on hemp/marijuana case filing policy. Bexar County District Attorney’s Office. 03 July 2019. Available at: https://www.bexar.org/CivicAlerts.aspx?AID=513.

13 Prince, Randall. Department of Public Safety Interoffice Memorandum regarding HB 1325 Enforcement Guidance.

Texas Department of Public Safety.

10 June 2019.

Available at: https://static.texastribune.org/media/files/6bb887232ae43ab238d88d50d18b196f/DPSciterelease2019.pdf?_ga=2.102158146.252285754.1602180849-554138637.1602180849.

14 Menchaca, M. CBD, hemp, medical marijuana? Here’s what you need to know about Texas’ changing pot laws.

KBTX-TV. 28 Jan. 2020. Available at: https://www.kbtx.com/content/news/CBD-hemp-medical-marijuana-Hereswhat-you-need-to-know-about-Texas-changing-pot-laws-567357991.html.

15 See id.

9

THE TESTING It seems clear that part of the reason marijuana prosecutions are declining is because labs are struggling to keep up with the THC testing. In February of 2020, Texas DPS announced that “the new THC testing methodology for plant material is expected to be finalized by Sam Houston State University (SHSU) near the end of March.”16 DPS clarified, however, that they will not be accepting misdemeanor cases, likely due to the high volume of arrests. Likewise, the letter clarified that they will not be testing felony concentrate materials at this time.17 A downside to DPS not testing, though, is that it leaves agencies in many areas to use costly private labs if they are not inclined to forego pursing marijuana cases. With new kinds of testing, however, it’s also important for us to remember problems that could also arise with its validity, including the ability of the sponsoring expert to meet Daubert factors in trials.

WHAT THE NEW LAWS MEAN FOR DEFENDING YOUR MARIJUANA CASES The passage of the 2018 Farm Bill and Texas’s HB 1325 give defense attorneys new ways to challenge Marijuana cases and develop issues that have not yet been decided by the courts. A few tools to use in defending marijuana cases today are outlined below.

Challenging PC. The new laws surrounding hemp have a drastic effect on law enforcement’s ability to assert probable cause to search or continuing detaining a suspect. While the Fifth Circuit has previously held that the odor of marijuana may be enough to support probable cause to search a vehicle18, no court, including the Fifth Circuit, has meaningfully addressed the issue of whether the sight or odor of alleged marijuana, alone, can be sufficient for probable cause to search after the passage of the 2018 Farm Bill and the 2019 Texas Hemp Bill. Since the passage of HB 1325, whether something is legal cannabis (hemp), or illegal cannabis (marijuana) is a legal conclusion. The only way to distinguish between legal or illegal cannabis is to have a lab test done to determine the THC concentration. The primary difference from a scientific perspective is that marijuana has a higher concentration of the psychoactive compound cannabinoid delta 9 tetrahydrocannabinol, more commonly known as THC19. Because of this, 16

McCraw, Steven. Letter to DPS Laboratory Clients. Texas Dept. of Public Safety. 18 Feb. 2020. Available at: https://www.texasnorml.org/wp-content/uploads/2020/02/thcMethodologyUpdate.pdf.

17 See id.

18 See, e.g., United States v. Lork, 132 Fed. Appx. 34 (5th Cir. 2005) (detectable odor of marijuana emanating from a vehicle provides probable cause for the search of the vehicle); United States v. McSween, 53 F.3d 684, 686-687 (5th Cir. 1995) (the smell of marijuana alone may be enough for a finding of probable cause); United States v. Reed, 882 F.2d 147, 149 (5th Cir. 1989) (the officer’s detection of marijuana “in itself ... justified the subsequent search of [the defendant’s] vehicle”); United States v. Henke, 775 F.2d 641, 645 (5th Cir. 1985) (“Once the officer smelled the marijuana, he had probable cause to search the vehicle.”); United States v. Gordon, 722 F.2d 112, 114 (5th Cir. 1983) (same); and United States v. McLaughlin, 578 F.2d 1180, 1183 (5th Cir. 1978).

19 See Leson, Gero et al. “Evaluating the Impact of Hemp Food Consumption on Workplace Drug Tests.” 25 J. of Analytical Toxicology 691, 692 (Nov. /Dec. 2001), attached as Exhibit 2; see also Agricultural Improvement Act of 2018, Pub. L. No. 115-334, § 12619, 132 Stat. 4490, 5018 (“The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant.... with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”); see also Exhibit 1.

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they look and smell the same; they are indistinguishable from each other to the human eye or nose. While the Fifth Circuit and other case law has consistently held that the odor of marijuana may be probable cause to search a vehicle, these cases were decided before the 2018 Farm Bill and the 2019 Texas Hemp Bill. Before these bills, all cannabis was a schedule I substance, and hemp was not acknowledged as a substance distinguished by the Controlled Substances Act. If law enforcement detected the odor of marijuana prior to 2018, there would likely be probable cause to believe the odor was coming from an illegal substance, marijuana. After the bill, law enforcement cannot distinguish between legal hemp and illegal marijuana based on its sight or odor alone. There is therefore no immediately apparent illegality by the sight or odor of alleged cannabis alone and no probable cause to believe that the substance would not be legal hemp.

The fact that law enforcement cannot distinguish between the two substances without a scientific test should be a factor to consider when viewing the “totality of circumstances” in cases involving law enforcement using the sight or odor of alleged marijuana for probable cause.

In fact, at least one District Court in the Second Circuit has held: [T]he court takes judicial notice of the indisputable fact that marijuana and hemp are varieties of the same species, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 n. 11 (1993) (noting that a court may take notice of well-established scientific facts); accord Moyer v. IBM Corp., No. 02-CIV-8894 (GEL), 2003 WL 256931, at *2 (S.D.N.Y. Feb. 3, 2003), and infers from that fact that one could reasonably mistake the odor of one burning for the odor of the other burning.

United States v. Bignon, No. 18-CR-783 (JMF), 2019 WL 643177, at fn. 2 (S.D.N.Y. Feb. 15, 2019), aff'd, 813 Fed. Appx. 34 (2d Cir. 2020) (emphasis added).

All cannabis, regardless of whether it is hemp or marijuana, contains a mixture of chemicals called terpenes. It is important to note that the human nose dos not “smell” marijuana, it smells the terpenes of the cannabis plant. Approximately 150 terpenes have been scientifically identified20. It is these compounds that give cannabis its smell21. Simply put, all cannabis has the same smell which is caused by the presence of the same molecules, terpenes. This means that all an officer can detect is the odor of Cannabis sativa L., which is legal unless the THC concentration is over 0.3 percent. The officer or canine cannot detect the level of THC concentration. Therefore, while the odor of marijuana or burnt marijuana previously could establish probable cause to search in Texas, a detention or search based solely on the smell of cannabis or burning cannabis 20

Booth, J. K., & Bohlmann, J. (2019). Terpenes in Cannabis sativa - From plant genome to humans. Plant science: an international journal of experimental plant biology, 284, 67–72. https://doi.org/10.1016/j.plantsci.2019.03.022, attached as Exhibit 4.

21 Breitmaicr, Eberhard. Terpenes: Flavors, Fragrances, Pharmaca, Pheromones. Weinheim: WILEY-VCH; 2008; pp.

176-177 (“A compound smells if it is sufficiently volatile. This applies predominantly to monoterpenes, but also to various sesqui- and diterpenes, as fragrances reach the appropriate receptors of the epithelium of the olfactory organ in the upper part of the nose. A molecule induces a specific sense of smell in the nose provided that its shape exactly matches a complementary cavity of the receptor, much as a key fits into a lock.”).

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alone is arguably illegal. For these reasons, detentions based upon smell alone lack reasonable suspicion and searches based on the smell alone lack probable cause. It should now be argued that no probable cause exists if law enforcement has no reason to believe that the odor they claim they smell is not, in fact, hemp.

Given the similarities of marijuana and hemp, not only does law enforcement lose its ability to form probable cause to search vehicles incident to the vehicle exception or use odor as the basis for probable case in a search warrant, but arrests of persons and seizures of green leafy substances are also devoid of probable cause absent other articulable facts indicating that the substance is in fact illegal marijuana.

It should also be noted that smokable hemp containing CBD is widely used as a method of ingesting CBD for its medicinal effects. Many people prefer smoking hemp rather than using a “vape” cartridge given the unknown and often negative effects of “vaping” oils. Vape cartridges containing CBD are indistinguishable from vape cartridges containing an illegal amount of THC. It is impossible deduce the concentration levels of either CBD or THC within a cartridge just by looking at them. For this reason, as with the indistinguishability problems of marijuana and hemp, so too are substances containing CBD and THC likewise indistinguishable. For these reasons, the same arguments apply concerning the probable cause to search arrest and seize.

Officers aren’t the alone in their inability to distinguish illegal marijuana from legal hemp or illegal THC from legal CBD. Narcotics detection dogs are likewise unable to make any meaningful distinctions. Cases involving indications that a “K-9 alerted to presence of narcotics” which form the basis of probable cause to search, are also ripe for suppression. No K-9s have ever be trained to distinguish between Hemp and Marijuana, assuming that there is any scientific basis to even do so. And these issues can create even worse problems for cases relying on K-9 sniffs. Because of this, an “alert” from a K-9 can now be a false positive. In Colorado, where small amounts of marijuana were legalized in 2012, drug dog searches became problematic because the animals would alert officers to a legal amount of marijuana. See People v. McKnight, 2019 CO 36, 446 P.3d 397, reh’g denied (July 1, 2019). There, the Colorado Supreme Court ultimately held that police had to establish probable cause before using a drug-sniffing dog, a move that led authorities to roll back the role of dogs in drug cases. The McKnight Court noted: [T]he drug-detection dog used to find the pipe, Kilo, was trained to alert on multiple drugs, including marijuana. Even a hint of marijuana can trigger the same response from Kilo as any quantity of methamphetamine. ¶3 And that’s where things get tricky. After all, the possession of an ounce or less of marijuana by someone twenty-one or older is legal in Colorado, following the passage of Amendment 64, Colo. Const. art. XVIII, § 16(3), even though such possession remains illegal under federal law. Thus, no matter how reliable his nose, Kilo can now render a kind of false positive for marijuana.

He has been trained to alert to marijuana based on the notion that marijuana is always contraband, when that is no longer true under state law.

And historically, whether a drug-detection dog might alert on 12

noncontraband drives whether the dog’s sniff constitutes a search implicating constitutional protections. The dog’s sniff arguably intrudes on a person’s reasonable expectation of privacy in lawful activity. If so, that intrusion must be justified by some degree of particularized suspicion of criminal activity.

See id. at 399. Likewise, in Texas, although marijuana has not been legalized, hemp has been.

Therefore, “where things get tricky in Texas” is that a “sniff” performed by a canine or person here can now “render a kind of false positive for marijuana” based on the notion that the substance alleged to have the odor of marijuana is always marijuana. In Texas, a “sniff” can also detect lawful activity, namely the legal possession of hemp. While the McKnight case law is not binding, its language is persuasive.

There are currently no field tests which can differentiate between hemp and marijuana.

Law enforcement agencies are now recognizing this fact. For example, in the State of Florida, the State’s Attorney for the Eleventh Judicial Circuit sent a memo to Law Enforcement Agencies within the Eleventh Judicial Circuit of Florida indicating: Because hemp and cannabis both come from the same plant, they look, smell, and feel the same. There is no way to visually or microscopically distinguish one from the other. Similarly, since hemp can be – and is - also smoked, there is no olfactory way to distinguish hemp from marijuana. In either their raw vegetative state, or while burning, both hemp and cannabis smell the same. Accordingly, the only way to distinguish legal hemp from illegal cannabis is through quantitative testing. …

Since there is no visual or olfactory way to distinguish hemp from cannabis, the mere visual observation of suspected cannabis – or its odor alone – will no longer be sufficient to establish probable cause to believe that the substance is cannabis.

Some agencies have established what they have referred to as an “odor plus” standard for establishing probable cause.

See Office of the State Attorney for the Eleventh Judicial Circuit, Interoffice Memo “Re: Marijuana Cases in the Wake of the ‘HEMP’ Bill (Senate Bill 1020), Dated August 5, 2019, attached as Exhibit 2.

Similarly, the Miami-Dade Police Department issued a statement indicating: Hemp and cannabis look, feel and smell the same, and both can be smoked.

Currently, there is no way to distinguish between hemp and cannabis based on plain view or odor alone. Accordingly, officers can no longer search a vehicle based solely on the odor of cannabis. Now you must articulate

13

additional factors that lead you to believe that the substance is illegal cannabis, based on the totality of circumstances. You need “odor plus.” 22 Likewise, the North Carolina Bureau of Investigation recently recognized that no law enforcement officer can visually tell the difference between the illegal hemp and illegal marijuana, nor can its officers or its K-9s detect the difference in odor23. Moreover, the U.S. Drug Enforcement Administration put out a request for information on private companies that might have the technology for field tests sensitive enough to distinguish between hemp and marijuana24.

If there is no probable cause, the arrest should obviously be suppressed. Don’t forget, however, the seizure should be suppressed, too. Without the requisite probable cause, it is likely that any incriminating post-arrest statements should also suppressed, as well as any testing to confirm the substance is THC. If argued correctly, this can be a huge tool to use to get your case dismissed. For example, in a possession case involving alleged THC oil, if there is no pre-arrest admission that the substance in question is THC oil, and not CBD oil, it is virtually impossible for the officer to distinguish between the two. It is also very important to note that field tests cannot give probable cause to arrest in this situation because a substance containing less than 0.3 percent of THC can produce a positive result while remaining a legal substance.

What the state has to prove. As noted by DA Joe Gonzales, “[t]he immediate effect of the hemp law is that it requires the state to prove a THC concentration on marijuana cases that cannot be accomplished without lab testing.”25 It can now be argued in marijuana cases that the State has to prove beyond a reasonable doubt that the substance in question is not legal hemp, but rather a substance containing more than .3% THC. This has proven to be a difficult task for prosecutors, as THC-level testing is still developing and uncommon. The lack of testing resources to distinguish between Marijuana and Hemp casts too much reasonable doubt over criminal proceedings, which is why, as mentioned above, many counties are either tossing low-level marijuana cases or holding off on pursuing 22

See Iannelli, Jerry. “Miami-Dade Cops Won't Stop People for ‘Weed Smell’ Alone Thanks to New Law”. Miami New Times. (Jul. 19, 2019). Available at: https://www.miaminewtimes.com/marijuana/miami-dade-police-sayscops-cant-pull-you-over-for-weed-smell-11222985.

23 North Carolina State Bureau of Investigation, Industrial Hemp/CBD Issues. Available at: https://www.sog.unc.edu/sites/www.sog.unc.edu/files/doc_warehouse/NC%20SBI%20%20Issues%20with%20Hemp%20and%20CBD%20Full.pdf (last accessed Jan. 1, 2022). Attached as Exhibit 6.

24 See “Legal hemp, pot’s look-alike, creates confusion for police”. CNBC. (Mar. 28, 2019). Available at: https://www.cnbc.com/2019/03/28/legal-hemp-pots-look-alike-creates-confusion-for-police.html; see also McGivern, Kylie. “K9 retirement, backlog in test kits under Florida'’ new hemp law.” ABC Action News WFTS Tampa Bay. Available at: https://www.abcactionnews.com/news/local-news/i-team-investigates/k9-retirement-backlogin-test-kits-under-floridas-new-hemp-law (“Hemp has a lower THC concentration than marijuana. But to drug sniffing dogs, it smells the same.”).

25

Statement on hemp/marijuana case filing policy. Bexar County District Attorney’s Office. 03 July 2019. Available at: https://www.bexar.org/CivicAlerts.aspx?AID=513.

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criminal charges in larger cases. If you have a case where a private lab has determined the level of THC-concentration in a material, remember to challenge its validity and remember the Daubert Factors required for expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

There currently exist no peer reviewed scientific procedures to test THC concentration levels in Cannabis sativa L. While arguably, High Performance Liquid Chromatography (HPLC) could produce concentration levels, no studies have been produced or peer reviewed. Even with the limited use of HPLC to obtain concentration levels for commercial marketing reasons in recreational jurisdictions, the experimental nature of those procedures does not meet the necessary Daubert standards and have technical problems of their own.

How we instruct the jury. Because of the new hemp laws, changes are required in how juries are instructed when it comes to alleged marijuana cases. Because the definition of marijuana has changed to exclude material with 0.3 percent THC concentration or less, juries should be instructed accordingly. Juries should also be instructed that it is the government’s burden to prove beyond a reasonable doubt that the alleged marijuana does in fact have a concentration above 0.3 percent THC. Obviously, since no expert can testify to this fact, your chances of winning greatly improve.

Hemp is just back door jury nullification. We already know that the public’s appetite for prosecuting marijuana is virtually gone. Assuming the state could even empanel a jury that could convict or punish someone charged with possession cannabis in 2020, why would they ever want to. Obviously, in most possession cases of any type of contraband the only way to when is through suppression. If they caught you red handed, what’s your defense? You can’t just argue to the jury, “C’mon, it’s just weed” can’t you? Maybe now you can?

If you lose that suppression issue, remember you can always put it to a jury with at 38.23 instruction. But more importantly, think about this argument. If you have sufficiently Voir Dired on how many states and how many millions of Americans are making billions of dollars in legal cannabis markets, and how important it is to hold the state accountable to the proper standards of testing and reasonable doubt they should be ready for virtual cannabis nullification. “Sure, we know that its weed” but the state never proved beyond a reasonable doubt that the weed had more than 0.3 THC in it. They set the bar at 0.3 percent, they should have to reach that bar, that’s what the legislature wanted. Malum prohibitum laws are technical ones to begin with. There is nothing inherently evil with that green leafy substance. Its technically illegal, not actually evil. So, it stands to reason, they must technically prove it’s got more than .03 percent THC. The same is true in federal court. Obviously, the issues are a lot heavier to contend with when we are in federal court, but these same concepts hold true. Because these concentration distinctions come directly from the federal “Farm Bill,” all of the arguments apply equally. And in reality, a marijuana case in federal court obviously will have more serious consequences than in state court, so all the more reason to fight.

15

How we negotiate with Prosecutors. The new hemp laws give us more leverage when negotiating plea agreements with the government. Remember all the arguments discussed in this article and highlight some of them when discussing your marijuana case with prosecuting attorneys. Convince them that if pushed to trial, you will hold them to their burden and will make them prove every element of their case, which may prove difficult concerning the current inability to test THC levels. If you have a good suppression issue, use that to your advantage to try and secure a dismissal.

CONCLUSION The attitudes surrounding marijuana have drastically changed both in the United States and in Texas and show strong support in favor of legalization. Nationwide and statewide polls reveal a strong pattern in favor of marijuana legalization, evidenced by the fact that 46 states in America have some form of legalization and that it’s fully legal for adults 21 years of age or older in 18 of those states. In Texas, numerous counties are no longer prosecuting small-amount marijuana possession cases, including Bexar, Harris, and Dallas County. The 2018 Farm Bill and Texas’ House Bill 1325 have changed the landscape of criminal defense for marijuana cases indefinitely and gave criminal defense lawyers new and effective tools to use to beat marijuana cases. So, fight every fight, NEVER plea a misdemeanor marijuana case and NEVER let anyone become a felon for marijuana. And to quote our homie Dr. Dre, “Smoke [hemp] everyday” .

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EXHIBIT 1

April 20, 2022 Hon. Ken Paxton Attorney General of the State of Texas Attn: Opinion Committee P.O. Box 12548 Austin, Texas 78711-2548 Re: request for an opinion regarding whether the exclusion of “tetrahydrocannabinols in hemp” from the statutory definition of “controlled substance” precludes prosecution of individuals for the possession and sale of delta8 tetrahydrocannabinol products derived from hemp.

Dear Attorney General Paxton, The following is Texas Criminal Defense Lawyers Association’s response to the Montgomery County District Attorney’s request for opinion on the following questions: Are products containing concentrated or synthesized delta-8 THC still unlawful to possess or sell under sections 481.103, 481.113, and 481.116 of the Texas health and Safety Code? Or are delta-8 THC products no longer subject to prosecution under 481.002(5) of the Health and Safety Code—which excludes “tetrahydrocannabinols in hemp” from the statutory definition of “controlled substance”—if delta-8 THC is extracted or synthesized from lawfully-grown hemp products?

Summary of Answer: Concentrated or synthesized Delta-8 THC is currently illegal under sections 481.103, 481.113, 481.116 as well as section 481.106 (c) of the Texas Health and Safety Code. The exclusion set out in section 481.002(5) for “tetrahydrocannabinols in hemp” is limited to the minute quantities of delta-8 THC which are naturally occurring in hemp plants.

Background Delta-8 THC is a naturally occurring cannabinoid within the cannabis plant1. The natural delta-8 THC found in cannabis plants is very minute and therefore not concentrated or synthesized2. Those small amounts of natural delta-8 THC are legal under section 481.002(5) of the Texas Health and Safety Code. However, the direct extraction of natural delta-8 THC from cannabis plants is extremely cost prohibitive and rarely, if ever, conducted compared to the current method of conversion from CBD3.

Cannabidiol, CBD, began to be first seen in the marketplace with the legalization of hemp first in 2014 through state pilot projects and then flooded the market with the 2018 Federal Farm Bill and House Bill 1325 in Texas4. Like all market forces, the supply of CBD far outpaced the demand and prices for CBD plummeted. This left hemp producers and distributors with tons of biomass that could not be sold5. The market’s solution was to create delta-8 THC, a synthesized cannabinoid made by converting either CBD or delta-9 THC. The products being sold on the shelves throughout Texas are not made with the naturally occurring delta-8 THC they are made with this synthesized delta-8 THC6. It is this conversion process that makes delta-8 THC illegal.

Other States Delta-8 THC is illegal in at least 13 states: Alaska, Colorado, Delaware, Idaho, Iowa, Montana, New York, Nevada, North Dakota, Rhode Island, Vermont, Utah, and Washington.

Colorado’s Marijuana Enforcement Division issued a notice stating that “chemically modifying or converting any naturally occurring cannabinoids from industrial hemp is non-compliant with the statutory definition of the “industrial hemp product.”7 New York added the following language to their hemp rules Products may “not contain synthetic cannabinoids, or cannabinoids created through isomerization, including delta-8 tetrahydrocannabinol and delta-10 tetrahydrocannabinol.”8 Vermont Hemp Rules ban the “use of synthetic cannabinoids in the production of any hemp product or hemp-infused product.”9 Vermont Hemp Rules § 6.3. So, while naturally occurring delta-8-THC is not barred from hemp or hemp products, Vermont producers cannot manufacture the delta-8-THC cannabinoid from hemp.

1

https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc Id. 3 https://cen.acs.org/biological-chemistry/natural-products/Delta-8-THC-craze-concerns/99/i31 4 https://www.hempgrower.com/article/6-strategies-overcoming-hemp-oversupply-legislation-exports-delta-8-thc/ 5 Id. 6 https://cen.acs.org/biological-chemistry/natural-products/Delta-8-THC-craze-concerns/99/i31 7 https://cbdoracle.com/news/policy/delta-8-thc-legal/ 8 https://hemptoday.net/new-york-adopts-final-rules-banning-delta-8-thc-smokable-hemp/ 9 https://agriculture.vermont.gov/hemp-program/manufacture-delta-8-thc-or-its-use-hemp-products-permitted-undervermont-hemp-program 2

There are multiple bills currently pending around the country to make delta-8 THC illegal or at least clarify that synthetic delta-8 THC is illegal. Clearly it was no states intention to legalize a psychoactive cannabinoid without some type of regulation or oversight.

Texas Health and Safety Code Section 481.103(a)(1) of the Texas Health and Safety Code includes tetrahydrocannabinols and synthetic equivalents of the substances contained in the plant.

First, delta-8 THC is a tetrahydrocannabinol10, and therefore illegal if not in hemp. Second, synthetically created delta-8 THC also falls within this definition. Delta-8 THC that is converted from CBD to delta-8 THC is not the naturally occurring cannabinoid that would be exclude under section 481.002(5) of the Texas Health and Safety Code.

Since synthetic cannabinoids, i.e delta-8 THC, are included in the list of penalty group 2 substances prosecution under 481.113 and 481.116 would be proper. Additionally, prosecution under 481.106 controlled substance analogue would also be proper. Section 481.106 (6) Classification of Controlled Substance Analogue includes a “controlled substance analogue” that means: (1) a substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 1-B, 2, or 2-A; or (2) a substance specifically designed to produce an effect substantially similar to, or greater than, the effect of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 1-B, 2, or 2-A. Delta-8 THC is clearly an analogue as defined by this code section. It is a mirror image of Delta9 THC at the molecular level, thus satisfying11 (1). Delta-8 THC also has a high affinity for binding at the CB1 receptor12, those producing a similar effect on the body to delta-9 THC, satisfying (2).

For this reason, synthetically created delta-8 THC can also be prosecuted as an analogue under the Health and Safety Code definition.

10

https://www.fda.gov/consumers/consumer-updates/5-things-know-about-delta-8-tetrahydrocannabinol-delta-8-thc https://precisionextraction.com/2021/06/delta-8-vs-delta-9-thc-what-it-is/ 12 Id. 11

Conclusion It is the opinion of the Texas Criminal Defense Lawyers Association that all concentrated or synthetically produced delta-8 THC is illegal and can be prosecuted under sections 481.113 or 481.116 of the Texas Health and Safety Code as a penalty group 2 substance or an analogue of a penalty group 2 substance. Any natural delta-8 THC in hemp is legal and excluded from the definition of controlled substance under section 481.002(5) of the Texas Health and Safety Code. /s/ Donald H. Flanary, III. Donald H. Flanary, III. Chairman, TCDLA Cannabis Committee /s/ Adam Tisdel Adam Tisdel Member, TCDLA Cannabis Committee /s/ Daniel Mehler Member, TCDLA Cannabis Committee

EXHIBIT 2

OFFICE OF THE STATE ATTORNEY ELEVENTH JUDICIAL CIRCUIT

KATHERINE FERNANDEZ RUNDLE STATE ATTORNEY

INTEROFFICE MEMORANDUM

TO:

Law Enforcement Agencies within the Eleventh Judicial Circuit of Florida

DATE:

FROM: KATHERINE FERNANDEZ RUNDLE State Attorney Eleventh Judicial Circuit

RE:

August 5, 2019

Marijuana Cases in the Wake of the "HEMP" Bill (Senate Bill 1020)

On June 25, 2019, Governor DeSantis signed into law Senate Bill 1020, also known as the “Hemp” Bill.

This law, which has significant impact upon law enforcement, took effect on July 1, 2019. The bill creates a state hemp program, which legalizes the possession and use of hemp. Hemp is defined in the bill as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.” See Florida Statute §581.217(3)(d).

The Bill also changes the definition of “Cannabis” in Florida Statute §893.02 such that the term “Cannabis” does not include hemp as defined in s. 581.217.

Hemp and cannabis both come from the same plant, Cannabis sativa L. The only difference between hemp and cannabis is that hemp has a total delta-9 tetrahydrocannabinol (THC) concentration that does not exceed 0.3 percent. If the THC concentration of the plant does not exceed .3 percent, then the plant is hemp, and is legal in Florida. If the THC concentration of the plant does exceed .3 percent, then the plant is cannabis, and is illegal in Florida.

This significant change in the law will impact police and prosecutors in Florida, just as it has impacted police and prosecutors in other jurisdictions that have had similar legislation enacted. The greatest impact will be upon probable cause determinations by police and sheriff’s offices, and upon State Attorney’s Offices’ ability to prove beyond a reasonable doubt that a substance is cannabis, an illegal controlled substance under Florida Statute 893.02, and not hemp.

Because hemp and cannabis both come from the same plant, they look, smell, and feel the same. There is no way to visually or microscopically distinguish one from the other. Similarly, since hemp can be – and is - also smoked, there is no olfactory way to distinguish hemp from marijuana. In either their raw vegetative state, or while burning, both hemp and cannabis smell the same. Accordingly, the only way to distinguish legal hemp from illegal cannabis is through quantitative testing.

Page 1 of 3

A. Probable Cause Determinations Since there is no visual or olfactory way to distinguish hemp from cannabis, the mere visual observation of suspected cannabis – or its odor alone – will no longer be sufficient to establish probable cause to believe that the substance is cannabis.

Some agencies have established what they have referred to as an “odor plus” standard for establishing probable cause. Some of the factors that may lend themselves to helping to establish probable cause include – but are not limited to – the following: 1.

2.

3.

4.

5.

6.

Information or intelligence regarding illicit activity prior to the stop Knowledge of the subject’s prior recent criminal history for narcotics violations Observation of a hand-to-hand transaction prior to the stop Admission that the substance is – in fact – illegal cannabis Conflicting or nonsensical statements Nervousness, such as: a. Sweating when it is not hot b. Shaking or trembling hands c. Avoiding eye contact 7. Furtive movements 8. Discarding, destroying, or trying to hide a substance 9. A large amount of currency 10. Currency in rubber-banded “quick count bundles” 11. Masking agents such as fabric softener, air fresheners, or coffee grinds 12. Firearms or other weapons 13. Drug paraphernalia, such as baggies, pipes, heat sealers, or scales (although legal hemp may be stored in a baggie and smoked in a pipe as well) 14. Signs of impairment on a driver (such as bloodshot, watery eyes or slurred speech) This is a non-exhaustive list of some additional factors that may, in various combinations, lend themselves to establishing probable cause. Law enforcement officers should consider each of these factors, as well as look for other evidence of illegality, before taking any action that requires probable cause. We recommend that you consult your police legal advisor for guidance on particular factual scenarios that your officers may encounter in the field. Probable cause has always been assessed under the totality of the circumstances.

B. Prosecutions of Cannabis Offenses Since the Hemp Bill Came into Effect In any criminal trial involving a cannabis offense, the state is required to prove beyond a reasonable doubt that the suspected substance is, in fact, illegal cannabis, and not hemp. As stated previously, since cannabis and hemp are visually and microscopically identical – and smell exactly the same – in Page 2 of 3

order to prove that the substance is cannabis the state will need to prove that the substance has a delta-9 tetrahydrocannabinol (THC) concentration that exceeds 0.3 percent on a dry weight basis. The State Attorney's Office will need a laboratory test result that indicates that, in fact, the substance is illegal cannabis – as opposed to hemp – before filing formal charges in a case. Due to the fact that the speedy trial period under Florida Rule of Criminal Procedure 3.191 begins to run once a defendant is arrested, officers should not make a probable cause arrest for a cannabis-related offense until obtaining a positive laboratory result. However, the officer should still impound the suspected cannabis.

The Miami-Dade Police Department Forensic Services Bureau Crime Laboratory does not currently determine the amount of THC in cannabis. The Miami-Dade Police Department is working diligently to gain the capability to perform the lab testing necessary to distinguish hemp from illegal cannabis. It is anticipated that the MDPD Crime Lab will have the ability to perform the required testing in approximately 3 to 6 months. We will send out a follow-up announcement in the future advising of when the MDPD Crime Lab is able to perform the necessary testing in house.

In the meantime, in order to successfully prosecute a cannabis offense, it will be incumbent upon the law enforcement agency to submit suspected cannabis to another DEA-licensed facility for quantitative testing. To ensure that the results of any such testing are not excluded by the Court, the particular lab testing methodology utilized must be capable of meeting the Daubert predicate. See Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). Please consult your police legal advisor in this regard. The cost of any such testing will be the responsibility of the law enforcement agency who submitted the sample for testing. Additionally, any expert witness fees beyond the amounts which are authorized by Administrative Order of the Eleventh Judicial Circuit of Florida will be the responsibility of the law enforcement agency who submitted the sample for testing. The expert witness fees which are established by Administrative Order of the Eleventh Judicial Circuit of Florida are seventy-five dollars ($75.00) per hour for actual courtroom testimony, fifty dollars ($50.00) per hour for preparation prior to court appearance or deposition and related consultation with an Assistant State Attorney, and twenty-five dollars ($25.00) per hour for travel time or time waiting to testify in court.

Up until now, there was no laboratory expense involved in marijuana prosecution cases, as any necessary testimony was from the Miami-Dade Police Department Forensic Services Bureau Crime Laboratory personnel. Since every marijuana case will now require an expert, and necessitate a significant expenditure by the State of Florida, barring exceptional circumstances on a particular case, we will not be prosecuting misdemeanor marijuana possession cases.

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ETHICS DOS AND DONT’S WITH CLIENTS BETTY BLACKWELL Attorney at Law Board Certified in Criminal Law 1306 Nueces Street Austin, Texas 78701 512-479-0149 bettyblackwell@bettyblackwell.com &

SAM BASSETT Minton, Bassett, Flores, Carsey, P.c.

1100 Guadalupe St. Austin, Texas 78701 512-476-4873 sbassett@mbfc.com

TABLE OF CONTENTS PAGE The Basics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . 3 Use a written contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4 Neglect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Malpractice and ineffective assistance of counsel . . . . . . . . . . . .. . . . . . . . 6 Failure to Communicate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Who can File a grievance?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Fee Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Non-refundable retainers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Trust Account Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Duty on Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Perjury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Perjury by Defendant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Advising Subpoenaed and Potential Witnesses . . . . . . . . . . . . . . . . . . . .16 Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Compulsory Discipline upon Conviction . . . . . . . . . . . . . . . . . . . . .. . . . . . 17 Rule changes as of 2021 . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Grievance System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 Investigaion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Investigatory Panels. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 Just Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 2

Grievance Committee .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Grievance Referral Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Important State Bar Phone numbers . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 25

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LIST OF AUTHORITIES

PAGE

Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999). . . . . . . . . . 16 Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Ex Parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987) . . . . . . . . . . . . . .8 Helton v. State, 670 S.W2d 644 (Tex. Crim. App. 1984) . . . . . . . . . . . . . 15 Hines v. Commission for Lawyer Discipline, 2003 WL 21710589 (Tex. App. Hous 14th ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013). . . . . . . . . . . . . . 13 In re Lock, 54 S.W.3d 305 (Tex. S.Ct. 2001) . . . . . . . . . . . . . . . . . . . . .. . 19 Lafler v. Cooper, 132 S.Ct. 1376 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Missouri v. Frye, 132 S.Ct. 1399 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . .7 Nix v. Whiteside, 106 S.Ct. 988 (1986) . . . . . . . . . . . . . . . . . . . . . . . .. . . .15 Padilla v.Kentucky, 130 S.Ct. 1473, (2010. . . . . . . . . . . . . . . . . . . . . . . . . 7 Santos v, Commission for Lawyer Discipline, 140 S.W.3d 397 (Tex. App. Hous 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5 Strickland v. Washington, 462 U.S. 1105 (1984) . . . . . . . . . . . . . . . . . . . . 5 Walter v. Commission for Lawyer Discipline, 2005 WL 1039970 (Tex. App. Dallas) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Weiss v. CFLD. 981 S.W.2d 8 (Tex. App.- San Antonio 1998) . . . . . . . . .12 Wiggins v. Smith 539 U.S. 510, 123 Sct. 527 (2003) . . . . . . . . . . . . . . . . .5 Willie v. CFLD, 2014WL586226, (Tex. App.-Houston 1st Dist. 2014). . . . .11 4

DOS AND DON’TS WITH CLIENTS VIOLATIONS OF THE ETHICAL RULES All lawyers licensed in Texas are required to abide by the Texas Disciplinary Rules of Professional Conduct. A violation of any of the disciplinary rules can result in a lawyer being sanctioned by the State Bar of Texas’s office of the chief disciplinary counsel. Sanctions can range from private reprimands up to disbarment.

Last year (through May 2020) the State Bar of Texas received 7505 complaints about lawyer misconduct. 5123 were dismissed because the complaint does not describe or allege a violation of the Texas Disciplinary Rules of Professional Conduct. 2202 were sustained complaints which proceeded as a grievance against the attorney. After an investigation,1705 cases were submitted to the summary disposition grievance panel for a dismissal. The following is a discussion of the most common complaints that result in a sanction by the State Bar of Texas and how to avoid them.

The Basics: 1.

2.

3.

4.

5.

6.

7.

Have a written contract Return phones calls if only to say that there is nothing new to report Communicate with clients in writing to document Return files upon termination of employment Keep the attorney’s address current with the State Bar at all times Return unearned fees Do not advise anyone to avoid a subpoena or advise them to ignore a subpoena 8. Have a trust account for all fees that are prepaid or advance fees paid for services in the future 9. Answer any State Bar grievance 10. Do not have sex with your clients

USING A WRITTEN CONTRACT: Rule 1.04 Texas Disciplinary Rules of Professional Conduct 5

(c)when the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

A written contract will spell out exactly what work the lawyer has agreed to undertake and at what fee. Many complaints to the State Bar arise between the lawyer and the client about exactly what the lawyer had agreed to do. Rule 1.02(b) states that a lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation. However, without a written contract it is a swearing match as to what was said and the grievance can go forward if the State Bar disciplinary counsel has just cause to believe that a rule violation has occurred. Since it is a civil case, the burden to prove the allegations is by a preponderance of the evidence.

Limiting the extent of the representation is one of the most useful aspects of a written contract. Most clients believe that the fee for representation includes the appeal of an adverse decision. However, most lawyers do not intend to include the appeal in the original fee structure.

Explaining whether expert witnesses and other costs of the litigation are the client’s responsibility to pay for or the lawyer’s, is another area of common confusion. In criminal law, explaining that the expunction process is a separate civil proceeding that will not occur without additional fees being paid, is almost always an area of frustration on the part of the client.

Recently malpractice carriers have asked that attorneys include in their written contract exactly the length of time the lawyer will retain the client’s file and that the file will be destroyed unless the client takes possession of the file.

Rule 1.14(a) requires that trust account records be kept for five years, so it is recommended that the time period of retaining a file be at least five years. A grievance must be filed within four years so that keeping the file at least five years will insure the records are available to defend any grievance.

Rule 1.04 (d) requires that a contingent fee agreement be in writing and that it must state the method by which the fee is to be determined. It also requires an accounting at the end of the case.

HISTORICALLY THE MOST COMMON GRIEVANCE: Neglect Neglect has been traditionally the number one most common complaint filed by former clients against their attorneys and it is the most likely rule violation to result in an attorney being sanctioned by the State Bar. 6

Rule 1.01(b)(1) A Lawyer shall not neglect a legal matter entrusted to him or frequently fail to carry out completely the obligations that the lawyer owes the client.

Santos v, Commission for Lawyer Discipline, 140 S.W.3d 397 (Tex. App. Hous 2004). The lawyer was sanction for the conscious disregard of a legal matter. He had been paid for an immigration matter and though told of the court date, the lawyer failed to appear. In contrast to the result in Santos, a simple calendaring mistake usually will not cause a lawyer to be sanctioned by the Bar as the comments to Rule 1.01 say “A lawyer who acts in good faith is not subject to discipline, under this provision for isolated inadvertent or unskilled act or omission, tactical error, or error of judgment”.

Malpractice is not always a violation of the Rule of Ethics and ineffective assistant is not necessarily a violation of the Rule of Ethics. An example of malpractice maybe telling a defendant that deferred adjudication will not show up on their record. But this probably doesn’t rise to the level of neglect, only incompetence. Malpractice can occur when a lawyer gives bad legal advice.

However, that does not meet the definition of neglect to cause the lawyer to be sanctioned by the State Bar. The duty to investigate, is part of the effectiveness standard. A lawyer must make a reasonable effort to investigate the case or after discussions with the client, make a reasonable determination that investigation is not necessary.

Strickland v. Washington, 462 U.S. 1105 (1984). Wiggins v. Smith 539 U.S. 510, 123 Sct. 527 (2003). Failure to investigate a case may not rise to the level of neglecting a case in violation of the Disciplinary Rules of Professional Conduct.

Failure to convey the plea offer to the defendant can be neglect and cause a writ to be field. Failure to advise the client of the consequences of a plea offer is ineffective assistance and may also rise to the level of neglect or failure to properly communication with a client as discussed in the next section, under the rules of Professional Conduct.

For example some of the most common criminal cases: Any plea to a DWI case can result in substantial non-criminal consequences for the person convicted. There are many areas of employment that prohibit a conviction for DWI, including Police Officers, Firefighters, and emergency medical technicians. Many employers have there own employment guidelines which can include dismissal for a DWI. School district often fire teachers if they are convicted of DWI. Canada will not allow anyone to enter the country if they have a DWI conviction.

In POM cases, a jail sentence results in a driver’s license suspension of up 7

to 180 days. A jail sentence is a final conviction and can not be expunged nor can it be sealed if it occurred before September 1, 2015. Drugs cases are eligible for deferred adjudication, which can be eventually sealed, but not expunged. A regular probation stays on the person record for the rest of their life. Many employers will not hire someone with a drug conviction. Many scholarships to colleges prevent people from applying who have drug convictions. Drug convictions can result in severe immigration consequences as do violation of gun laws. Many apartment complexes will not rent to individuals who have drug convictions on their record.

These are just a few of the collateral consequences and many clients will file grievances upon their lawyer if they feel that the lawyer failed to properly advise them of the consequence of their plea.

The most common allegation of neglect in a civil case, is the failure to file a lawsuit within the statute of limitations. Though clearly this is malpractice and the lawyer can be sued, the defense to the grievance is that it was an isolated inadvertent act or omission or a calendaring mistake. But the comments to Rule 1.01 caution that delays can cause the client anxiety and the lawyer has a duty to communicate reasonbly with the client, suggesting that a grievance might be upheld for failure to communicate.

MALPRACTICE Malpractice refers to negligence or misconduct that fails to meet a standard of care that is recognized in the profession and that results in harm to the client.

In Texas it is very hard to sue a criminal defense lawyer for malpractice. The Supreme Court of Texas has decided that only innocent clients have a viable malpractice cause of action against their criminal defense attorney.

INEFFECTIVE ASSISTANCE OF COUNSEL Strickland v. Washington, 104 S.Ct. 2052 (1984) set out a two part test.

First the counsel’s representation must be deficient and secondly, that deficient performance must have prejudiced the defendant. The bench mark for judging any claim of ineffective assistance of counsel must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Under the 6th amendment, the defendant must show a reasonable probability that but for the counsel’s errors, the outcome would have been different.

Three important Supreme Court cases have reviewed the performance of criminal defense counsel to determine whether the client should be afforded a new trial. 1. Padilla v.Kentucky, 130 S.Ct. 1473, (2010) held that it was ineffective assistance of counsel to fail to advise a defendant that his plea of 8

guilty to a drug distribution charge would make him subject to automatic deportation. However, Padilla is not retroactive to cases already final. 2. Failure to inform the defendant of a plea offer is ineffective assistance of counsel.

Missouri v. Frye, 132 S.Ct. 1399 (2012) 3. In Lafler v. Cooper, 132 S.Ct. 1376 (2012), the defendant was prejudiced by counsel’s advise to reject the plea offer and proceed to trial. The trial counsel’s opinion that the evidence was legally insufficient to convict the defendant, was not sound advice. The defendant was entitled to effective assistance of counsel during the plea negotiations.

When deciding to accept a case, a lawyer should be aware of Rule 1.01(a) which states that a lawyer shall not accept or continue employment in a legal matter which the lawyer knows or should know is beyond the lawyer’s competence. The only exceptions are if the attorney associates another competent attorney on the matter with client consent, or it is an emergency situation. If in doubt, don’t take the case.

Immigration issues have been a focus of the Chief Disciplinary Counsel’s office. In their annual report for 2020, they stated that they received 19 immigration complaints, imposed 11 sanctions and referred 5 to the Grievance Referral Program.

Failure to communicate.

This is the second most common grievance filed and it is usually filed in addition to the allegation of neglect.

Rule 1.03 (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Rule 1.03 (b) states that a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision.

In reference to a criminal case the Rules require a lawyer shall promptly inform the client of the substance of any proffered plea bargain. Failure to do so has been held to be ineffective assistance of counsel. Ex Parte Wilson, 724 S.W.2d 72 (Tex. Crim. App. 1987). Failure to communicate a settlement offer in a civil case would be the same misconduct. Under the Rules, the lawyer is allowed to withhold information if believes the clients would react imprudently or if the client is under a disability.

Failure to communicate is alleged in close to half of all grievances filed.

The duty is an affirmative obligation and it not dependent on a client’s request for information. Failing to advise a client of an adverse development in a case would be a violation. A lawyer must respond to reasonable requests for 9

information.

Failure to provide adequate information for the defendant to make a decision about whether to have a jury trial or whether to accept a plea offer or a settlement offer can result in an attorney being sanctioned by the State Bar. Lawyers must be aware of immigration consequences, employment consequences, and licensing consequences, as discussed under the section on Neglect.

Lawyers are not required by the rules to communicate with family members or loved ones. However, one of the biggest misunderstandings by attorneys is who can file a grievance upon them. Many lawyers will answer a grievance filed by a family member saying that they have no attorney client relationship and therefore are not required to answer this grievance. This is wrong.

WHO CAN FILE A GRIEVANCE? Complaints with the State Bar may be filed by anyone. The complaint does not have to be filed by the client. There does not have to be an attorney client relationship for the person to file a complaint with the State Bar. Hines v.

Commission for Lawyer Discipline, 2003 WL 21710589 (Tex. App. Hous 14th ) The Father of the client filed the complaint and the respondent attorney’s theory was that there could be no sanction because he represented the son. The Court made it clear that anyone can bring to the attention of the bar a rule violation. In addition, any alleged misconduct does not have to be in the course of an attorney client relationship for the State Bar to prosecute a violation under Rule 804(a)(3) which states that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Walter v. Commission for Lawyer Discipline, 2005 WL 1039970 (Tex. App. Dallas). For example, a lawyer can be disciplined for actions taken as the executor of an estate, even though the lawyer may have no attorney client relationship with the beneficiaries of the will.

Rule 803 (a) requires a lawyer having knowledge that another lawyer has committed professional misconduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer, to inform the Chief Disciplinary Counsel’s office (CDC). The only exception is for mental illness or chemical impairment in which the lawyer can report the conduct to the Lawyer Assistant Program or the information is protected by confidentiality under Rule 1.05 or is obtained through counseling programs. Rule 1.05, Confidential Information, includes both privileged information and unprivileged client information which a lawyer shall not reveal except if provided by the rules.

Texas Lawyers Assistance Program’s phone number is 1-800-204-2222 ext. 1460. Conversations are confidential and referrals are available for help 10

with mental illness, substance abuse or impairment by physical illness. The goal is to rehabilitate lawyers and help them resume practicing law.

Fee disputes Fee disputes constitute a large number of complaints. Those complaints are first referred to the client attorney assistant program (CAAP) and to the local fee dispute committees of local bar associations. CAAP’s stated purpose is to try and work out a settlement so that the case does not proceed to a grievance.

Their number is 1-800-204-2222 ext. 1777. If a reasonable settlement can not be obtained, the case is referred by the Chief Disciplinary Counsel’s office to be filed as a grievance. Returning a phone call from CAAP at 1-800-204-2222 ext.

1777 could save a trip to the grievance committee.

Rule 1.04 (a) A lawyer shall not charge or collect an illegal or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

Consider:

1. Time and labor required including difficulty 2. preclude other employment 3. fee charged 4. time limitations imposed by client 5. amount involved and results 6. nature of the relationship with client 7. experience and ability of the lawyer 8. whether fee is fixed or contingent.

A lawyer may not charge a contingent fee in a criminal case. Rule 1.04 (e).

Rule 1.04(c) When the lawyer has not regularly represented the client, the basis or the rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. The Rule strongly recommends that a lawyer use a written contract of employment, effective March 1, 2005 which is the most recent change to the Rules, as the other Rules were adopted January 1, 1990.

11

Non-refundable retainers: Many lawyers put in their contracts that the fee is a non-refundable retainer fee. The thought is that this would prevent the client for asking for a refund and prevent the client from being able to pursue a grievance if no refund was made. These types of contracts and employment agreements are not recommended by the State Bar of Texas. One problem is the appearance of overreaching. The court decisions have made it clear this is not an arms length transaction and the client it at a particular disadvantage in the contract negotiation process.

What is a true retainer fee?

A true retainer is not a payment for services. It is an advance fee to secure a lawyer's services, and remunerate him for loss of the opportunity to accept other employment. If the lawyer can substantiate that other employment will probably be lost by obligating himself to represent the client, then the retainer fee should be deemed earned at the moment it is received. If, however, the client discharges the attorney for cause before any opportunities have been lost, or if the attorney withdraws voluntarily, then the attorney should refund an equitable portion of the retainer.

Cluck v. Commission for Lawyer Discipline, 214 S.W.3d 736 (Tex. App. Austin 2007) made it clear that simply calling a fee non-refundable does not make it so.

Calling the fee a retainer fee does not change an advance fee into a retainer fee. In that case there was a fee of $15,000.00 that the lawyer then billed against. By billing an hourly rate against the fee collected, the lawyer was demonstrating that in fact it was an advanced fee, not a retainer. Because it was an advance fee for services in the future and it had not been earned at the time of the payment, the fee was required to be placed into a trust. Because the lawyer did not place the money into a trust account, the sanction imposed by the State Bar was appropriate.

In Willie v. CFLD, 2014WL586226, (Tex. App.-Houston 1st Dist. 2014) the Court of Appeals affirmed the Cluck decision stating that a fee is not earned simply because the contract stated that it was non-refundable. Because the fee was to be billed against, it was an advance fee that must be deposited into a trust account.

Trust Account Violations Rule 1.14(a): A lawyer shall hold funds and other property belonging in whole or in part to clients or third persons that are in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. Such funds shall be 12

kept in a separate account, designated as a trust or escrow account. Complete records of such account funds shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation.

Unearned fees must be placed into a trust account.

Ethics Rule 611 further complicated the issue of non-refundable retainers deposited into an operating account by stating that the Rules of Professional Conduct prohibit such arrangements if the fee charged includes payment for the lawyer’s services on the matter up to the time of trial. The Professional Ethics Committee for the State Bar of Texas decided that such an agreement would be a payment for future services, and as such, an advanced fee which must be deposited into a trust account. The fee can only transferred to the operating account when earned under the terms of the agreement with the client. See State Bar Journal November 2011 p. 944 The Ethics opinions are not binding on the Supreme Court, but they are used by the State Bar as presuasive arguments in grievance matters. According to Larry Boyd’s paper written for the State Bar “Mythology of Nonrefundable flat fees” in which he presents an excellent analysis of Ethics Opinion 611, he writes that the opinion creates an “absolute prohibition of non-refundable flat fees”.

Duty upon termination and Duty to Return the file Rule 1.15(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a clients interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation.

The Texas Rule is that the file belongs to the client. Upon request and/or termination, the file must be returned to the client. If the lawyer wishes to make a copy and retain one for himself, he is responsible for making the copy. This section also results in a lot of sustained grievances against lawyers who mistakenly believe that they can hold the file hostage for payment of attorney’s fees. Ethics Opinion 610 says that it is not proper to include in the employment contract a statement that there will be a lien on the file for attorney’s fees as rule 1.08 (h) prohibits a lawyer from acquiring a proprietary interest in the cause of action.

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However, in order to prove an ethical violation, there must be evidence that the retained file prejudiced the client in the subject matter of the representation. Weiss v. CFLD. 981 S.W.2d 8 (Tex. App.- San Antonio 1998).

Many questions have arisen about the effect of the Michael Morton Act, that amended Article 39.14 Code of Criminal Procedure, effective January 1, 2014. Section (f) specifically states that the attorney representing the defendant “may not allow that person to have copies of the information provided...”

The issue has been raised about whether an attorney could face disciplinary action from the State Bar for refusing to turn over an offense report to a defendant, after the defendant requested his file. It is clear that state law prohibits the attorney from making copies of information obtained from the prosecutor’s office. Subsection (g) states that this can not be interpreted to limit an attorney’s ability to communicate with their client within the Texas Disciplinary rules of Professional Conduct, except for information identifying any victim or witness.

Ethics Opinion 570 from 2006 states that the attorney must turn over all notes unless there is a right to withhold a document pursuant to a legal right or the lawyer is required to withhold the document by court order. This opinion would cover any attorney who refuses to turn over discovery to their client as a part of the request for the file. It states that work product and notes of the attorney must be produced, but the attorney can rely on Article 39.14 C.C.P. in refusing to turn over witness statements and offense reports provided to the attorney. This would comport with Section (d) of Article 39.14 C.C.P. which sets out that when a defendant is pro se the State is not required to provide copies as required when an attorney requests discovery. The argument to be made is that this is not “papers and property to which the client is entitled” as the rule sets out, but the last line of the rule is problematic because these documents will be needed by the client.

In 2014 the Professional Ethics Committee of the State Bar of Texas issued Opinion 646. The question presented was whether as a condition for allowing criminal defense lawyers to obtain information in the prosecutor’s file, a prosecutor may require defense lawyers to agree not to show or provide copies of the information to their clients and agree to waive court-ordered discovery in all of the lawyer’s cases. The opinion specifically stated that under the Michael Morton Act, the prosecutor’s office can not demand such conditions for obtaining discovery. The opinion says that the Texas Disciplinary Rules of Professional Conduct require that the prosecutors comply with the Morton Act including making disclosures required by the Act. Unfortunately, the opinion confuses the issue by also stating that a prosecutor is prohibited from requiring the lawyer to not provide copies to their client. In the sentence preceding this statement, the 14

opinion says that Texas now has an “open file” policy and prosecutors can not require lawyers to agree to any restrictions except those provided by the Act. Opinion 646 does not give lawyers the right to turn over copies to the defendant, in violation of Article 39.14, Code of Criminal Procedure.

Another interesting issue came up when the client expressly refused to allow his trial attorney to turn over his file to his appellate/habeas attorney. In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013) issued a mandamus to prohibit a trial court from finding the attorney in contempt and to reverse the trial court’s order that the lawyer turn over the file. The Court recognized that since 1918 the Supreme Court of Texas has held that the file belongs to the client and without the client’s consent, the lawyer could not turn over the file. The work product belongs to the client because the lawyer is considered the agent of the client.

Perjury Rule 3.03(a) A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; (3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer reasonably believes should be known by that entity for it to make an informed decision; (4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (5) offer or use evidence that the lawyer knows to be false.

A lawyer must refuse to offer evidence that he knows to be false. If it comes from the client, the lawyer is justified in seeking to withdraw from the case. If the lawyer does not withdraw or is not allowed to withdraw, he must advise the client that he can not offer the false evidence and he must advise the client of the steps the lawyer will take if the false evidence is offered. If the lawyer discovers the false evidence after its use, the lawyer must seek to persuade the client to correct the false testimony and if that is ineffective, the lawyer is allowed to reveal confidential information under Rule 1.05 (f) which states a lawyer shall reveal confidential information when required to do so by Rule 3.03 (a)(2), 3.03(b) or by Rule 4.01(b).

15

Perjury by the criminal defendant Dealing with the possibility of perjury by a criminal defendant is complicated by a number of legal issues. The defendant has a due process right guaranteed in the 5th amendment of the U.S. Constitution to present his defense and he has the absolute right to testify, if he chooses. The rules recognize that these rights are attached to the criminal defendant in Rule 1.02(a) (3) which states in a criminal case, the lawyer shall abide by a client’s decision as to a plea to be entered, whether to waive jury trial and whether the client will testify. If the lawyer learns of the proposed perjury prior to trial, and he is unable to dissuade the client from doing so, the lawyer must withdraw from the representation. Rule 1.15.

However, Rule 1.15(c) overrides the ability to withdraw in many criminal cases. It states when ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

Three possible resolutions have been recognized in the United States. The first would allow the defendant to testify by narrative without any guidance from the lawyer. The second proposal would excuse the lawyer completely from any duty to reveal perjury if the perjury is that of the client. Texas has specifically rejected this option.

The rules in Texas require that the lawyer take reasonable remedial measures which can include disclosing the perjury. A defendant has the right to assistance of counsel, the right to testify and the right of confidential communication. However, the client does not have the right to assistance of counsel in committing perjury. The lawyer is to try and dissuade the client from committing perjury or if it has already occurred, the lawyer must try to get the client to correct the false testimony. This needs to be done in the present of another attorney to document the lawyer’s efforts.

Then the lawyer must file a motion to withdraw under Rule 1.15 (a) (1) alleging the representation will result in the violation of the rules of professional conduct or other law. In the motion, the lawyer should quote the language in either Rule 1.15(b) (2) that the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes may be criminal or fraudulent or as in Rule 1.15(b)(3) that the client has used the lawyer’s services to perpetrate a crime or fraud or Rule 1.15(b)(7) other good cause for withdrawal exists, including vague ethical considerations.

If the motion to withdraw is denied, the lawyer is permitted to reveal the perjury. 3.03(b) if the efforts are unsuccessful, the lawyer shall take the steps to remedy including disclosing the true facts. This should be done to the tribunal 16

and then the lawyer must abide by the decision of the court. Helton v. State, 670 S.W2d 644 (Tex. Crim. App. 1984) ruled that the lawyer was excused from the rules of confidentiality and he could reveal potential perjury to the court in order to prevent a fraud on the court.

Nix v. Whiteside, 106 S.Ct. 988 (1986) involved a murder defendant who complained that his lawyer threatened to withdraw and inform the court, if he took the stand and committed perjury. On appeal he alleged ineffective assistance of counsel and a denial of his 6th amendment right to counsel. The Supreme Court held that the attorney had acted properly in threatening both to withdraw and to disclose the perjury, as the right to testify does not include the right to testify falsely and the right to counsel does not include the assistance of counseling committing perjury. The Court specifically found that there was no breach of the lawyer’s professional responsibility.

Perjury is such an obvious and flagrant affront to the judicial proceedings, that the Court of Criminal Appeals has held in Butterfield v. State, 992 S.W.2d 448 (Tex. Crim. App. 1999) that a defendant could be compelled to testify, violating his 5th Amendment rights, and then prosecuted for perjury if he lied. His statements made in violation of his 5th Amendment rights could be admitted at his perjury trial.

Advising a Witness to Avoid a Subpoena A lawyer can not advise a lawfully subpoenaed witness to not appear in court. Rule 3.04 states that a lawyer shall not: (a) unlawfully obstruct another party’s access to evidence....or counsel or assist another to do any such act. (b) falsify evidence, counsel or assist a witness to testify falsely..... (e) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information.

Rule 3.04(c)(5) states that in representing a client before a tribunal the lawyer shall not engage in conduct intended to disrupt the proceedings. §36.05 of the Texas Penal Code, Tampering with a witness: A person 17

commits an offense if, with intent to influence the witness, he offers, confers, or agrees to confer any benefit on a witness or prospective witness in an official proceeding or coerces a witness or prospective witness in an official proceeding: (1) to testify falsely; (2) to withhold any testimony, information, document or thing, (3) to elude legal process summoning him to testify or supply evidence; (4) to absent himself from an official proceeding to which he has been legally summoned; or (5) to abstain from, discontinue, or delay the prosecution of another.

Article 24.04 of the Code of Criminal Procedure sets out how a subpoena can be served: (1) reading the subpoena in the hearing of the witness; (2) delivering a copy of the subpoena to the witness; (3) electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or (4) mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness.

It is both unethical and under the above circumstances illegal for an attorney to advise a subpoenaed witness not to appear in court. Rule 8.04(a) A lawyer shall not (4) engage in conduct constituting obstruction of justice.

The comments to the Rules of Disciplinary Procedures discuss that fair competition in the adversary system is secured by prohibitions against improperly influencing witnesses.

Conflicts of Interest Rule 1.06 Conflict of Interest: General Rule (a) A lawyer shall not represent opposing parties to the same litigation. (b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent a person if the representation of that person: (1) involves a substantially related matter in which that person’s interest are materially and directly adverse to the interest of another client of the lawyer or the lawyer’s firm; or (2) reasonably appears to be or become adversely limited by the lawyers or law firm’s responsibilities to another client or to a third person or by the lawyers or law firm’s own interest. (c)A lawyer may represent a client in the circumstances described in (b) if: (1) the lawyer reasonably believes the representation of each client will not be materially affected; and 18

(2) each affected or potentially affected client consents to such representation after full disclosure of the existence, nature, implications, and possible adverse consequences of the common representation and the advantages involved, if any. (e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or more representations to the extent necessary for any remaining representation not to be in violation of these Rules.

Comment 2 to Rule 1.06 gives guidance as to the meaning of conflict of interest. The term opposing parties as used in this Rule contemplates a situation where a judgment favorable to one of the parties will directly impact unfavorably upon the other party. Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly adverse to the representation of that client in a substantially related matter unless the client’s fully informed consent is obtained and unless the lawyer reasonably believes that the lawyer’s representation will be reasonably protective of that client’s interest.

Comment 3 recommends that ordinarily a lawyer should decline to represent multiple defendants in a criminal case due to the grave potential for conflict of interest. Comment 8 on fully informed consent recommends that the disclosure of the conflict of interest and the consent be in writing, though it is not required. It would be prudent, the rules states, for the lawyer to provide potential dual clients with at least a written summary of the considerations disclosed.

Most believe that having sex with clients is an automatic conflict of interest.Though technically difficult fit under this Rule, this behavior will cause the State Bar to take a heightened view of any Rule violation however minor.

Comment 4 to the Conflict Rules discusses the conflict that may occur with a client and the lawyer’s own interests (insert sexual interest at this point) and how it can cause a lawyer to not be able to consider, recommend or carry out the appropriate cause of action for one client because of his/her own interests. This results, for example, in a client alleging a lawyer did not conclude the representation in a timely manner in order to continue the sexual relationship.

This would be a violation of Rule 1.06(b)(2).

Sometimes the clients who have engaged in sexual relationship with their attorney will claim a violation of Rule 1.08(h). A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for the client… {with some exceptions that do not apply here}. The scenario that the aggrieved client can allege is that the attorney 19

proposed marriage, thereby potentially giving the attorney an interest in the cause of action. All of which forces the State Bar’s Office of Disciplinary Counsel to investigate the private life of the attorney.

After years of debate, planning and discussion that began in 2003, the Bar recommended in 2010 to attorneys that the Rules be amended to specifically prohibit sex with clients, to bring Texas in to conformity with almost every other state. On February 17th, 2011, the lawyers of the State of Texas voted to reject the proposal, so there is still no specific Rule prohibiting sexual relations with clients, other than common sense.

New Rule 6.05 approved in 2021, makes it clear that if an attorney engages in representation on a limited pro bono basis, or for a nonprofit, there is no imputed conflict of interest and Rules 1.06, 1.07 and 1.09 do not prohibit the representation.

LAWYERS CONVICTED OF CRIMES/COMPULSORY DISCIPLINE 8.01 of the Rules of Disciplinary Procedure: When an attorney licensed to practice law in Texas has been convicted of an Intentional Crime or has been placed on probation for an Intentional Crime with or without an adjudication of guilt, the CDC shall initiate a disciplinary action seeking compulsory discipline pursuant to this part. Proceedings are not exclusive in that an attorney may be disciplined as a result of the underlying facts as well as being disciplined upon the conviction or probation through deferred adjudication.

Intentional crime means (1) any serious crime that requires proof of knowledge or intent as an essential element or (2) any crime involving misapplication of money or other property held as a fiduciary.

Rules. Rule 8.04(a)(2) A lawyer shall not commit a serious crime or commit any other criminal act that reflect adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects. Serious crime is defined as barratry; any felony involving moral turpitude; any misdemeanor involving theft, embezzlement or fraudulent or reckless misappropriation of money or other property; or any attempt, conspiracy or solicitation of another to commit any of the foregoing crimes. Possession of cocaine, is not a serious crime for which a lawyer can receive a compulsory discipline based upon the sentence alone of probation, deferred adjudication, or a final conviction. In re Lock, 54 S.W.3d 305 (Tex. S.Ct. 2001).

During compulsory discipline proceedings, the Board of Disciplinary Appeals decides if a lawyer has been convicted or placed on deferred adjudication for an intentional crime, which is defined as a serious crime in 20

8.04(b). The Board shall disbar the lawyer unless the Board suspends the license during the term of probation. Rule 8.05 and 8.06 of the Texas Rules of Disciplinary Procedure.

8.05 Disbarment: When an attorney has been convicted of an Intentional Crime, and that conviction has become final, or the attorney has accepted probation with or without an adjudication of guilt for an Intentional crime, the attorney shall be disbarred unless the Board of Disciplinary Appeals, suspends his or her license to practice law.

8.06 Suspension: If an attorney’s sentence upon conviction of a serious crime is fully probated, or if an attorney receives probation through deferred adjudication in connection with a serious crime, the attorney’s license to practice law shall be suspended during the term of probation. If the probation is revoked, the attorney shall be disbarred.

Duty to report: 8.03 was amended in 2018 to require that an attorney convicted of or placed on deferred adjudication by any court for barratry, any felony, or for a misdemeanor involving theft, embezzlement,or fraud, or reckless misappropriation of money, or property, including a conviction or sentence of probation for attempt, conspiracy, or solicitation, must report the conviction or deferred adjudication to the State Bar of Texas. The lawyer must also notify the CDC when the lawyer has been disciplined by an attorney regulatory agency of another jurisdiction. Notice must be given within 30 days. New rule 8.03(f) approved in 2021 requires notice of any sanction imposed on the lawyer in federal court or by a federal agency, except a letter of warning or admonishment.

Rule changes adopted 2021: Rule 1.16 in reference to diminished capacity was amended at the proposal of the probate lawyers. It allows a lawyer to consult with family members, other providers concerning the mental health of a client, and if the lawyer chooses to do so, there is no confidentiality violation. If a lawyer has a reasonable belief that a client maybe suicidal, the lawyer may, but is not required to, seek treatment, or outside help without the lawyer violating any confidences of the client.

The advertising rules were substantially re-written to allow Tradenames to be used and to address probono programs, and social media. Rule 7.01 was 21

amended to address constitutional distinctions of those substantially motivated by puncuniary interests, so that non-profits are not covered.

What to do if a grievance is filed THE GRIEVANCE SYSTEM The Supreme Court of Texas has the power to regulate the practice of law as set out in the Texas Constitution. The statutory authority to regulate the practice of law is established in the State Bar Act which directs the State Bar to establish disciplinary and disability procedures. The Supreme Court has adopted the Texas Disciplinary Rules of Professional Conduct (TDRPC) which are the substantive ethics rules.

The Texas Rules of Disciplinary Procedure (TRDP) sets out the procedural grievance process. The Commission for Lawyer Discipline (CFLD) is a permanent committee of the State Bar comprised of 12 members, 6 attorneys and 6 public members. The CFLD is the client for all complaints not dismissed by a summary disposition panel. The Commission reviews the structure, function and effectiveness of the discipline system and reports to the Supreme Court and the Board of Directors.

CFLD monitors and evaluates the Chief Disciplinary Counsel (CDC).

The CDC administers the attorney disciplinary system. The CDC reviews and screens all information relating to misconduct. It rejects all inquiries and investigates all complaints to determine just cause. CDC recommends dismissal of complaints to the Summary Disposition Panels. CDC is accountable only to the Commission for Lawyer Discipline.

The District Grievance Committees are divided into state geographic disciplinary districts. They act through panels of 2/3 attorneys and 1/3 public members. The local grievance committees conduct summary disposition dockets, investigatory and evidentiary hearings.

INVESTIGATION If the grievance is determined to be a Complaint, the Respondent (attorney) shall be provided a copy of the complaint with notice to respond in writing to the allegations. The Respondent shall deliver the response to both the CDC and the Complainant within thirty days of the receipt of the notice.

No more than sixty days after the date by which the Respondent must file a written response to the Complaint, the chief Disciplinary Counsel shall 22

investigate the complaint and determine whether there is Just Cause. Rule 2.12 TRDP. A Just Cause finding is made if a reasonably intelligent and prudent person would believe that an attorney has committed one or more acts of professional misconduct requiring that a sanction be imposed. If the CDC determines that Just Cause does not exist, they shall place the complaint on a Summary Disposition Panel docket. This is presented to the local grievance committee without the appearance of the Respondent (attorney) or the Complainant. There is no appeal from the Panel=s determination that the complaint should be dismissed. If they fail to dismiss the complaint, it shall be placed on a hearing docket.

At this stage of the investigation the CDC may issue subpoenas in accordance with Rule 21a of the Texas Rules of Civil Procedure. The Respondent, attorney or witness must present any objection to the chair of the Investigatory Panel, if one is set, or to the Committee Chair. The CDC may seek enforcement through district court.

INVESTIGATORY PANELS The Chief Disciplinary Counsel may set a Complaint for an investigatory hearing. It is a nonadversarial proceeding that may be conducted by teleconference. The chair of the Investigatory Panel may administer oaths and may set forth procedures for eliciting evidence, including witness testimony.

Witness examination may be conducted by the Chief Disciplinary Counsel, the Respondent, or the Panel. An investigatory hearing is strictly confidential and any record may be released only for use in a disciplinary matter. An investigatory hearing may result in a Sanction negotiated with the Respondent or in the Chief Disciplinary Counsel’s dismissing the Complaint or finding Just Cause. The terms of a negotiated Sanction must be in a written judgment with findings of fact and conclusions of law. The judgment must be entered into the record by the chair of the Investigatory Panel and signed by the Chief Disciplinary Counsel and the Respondent.

JUST CAUSE If the investigatory panel hearing does not resolve the complaint and the CDC or the investigatory panel has determined Just Cause exists, they shall give the Respondent written notice of the acts and/or omissions engaged in by the Respondent and the Rule of Professional Conduct that the CDC contends has been violated.

RESPONDENT=S ELECTION A Respondent who has been give notice of the allegations and Rule 23

violations complained of must serve the CDC with his Election of District Court or an Evidentiary Panel of the Grievance Committee. The Election must be in writing and it must be served upon the CDC no later than twenty days after the receipt of the notice of the allegations. Failure to timely elect shall conclusively be deemed as an election to proceed before the evidentiary panel of the local grievance committee.

GRIEVANCE COMMITTEE If the Respondent elects or defaults by failing to timely elect, the hearing will be held in front of the local grievance committee. A Private Reprimand is only available at this proceeding and is not available if the Respondent elects a district court proceeding. The CDC must file a petition within 60 days of the election deadline. All proceedings are confidential, and the burden of proof is on the CFLD by a preponderance of the evidence. Respondent must be served with the petition by certified mail or other means permitted by the Rules of Civil Procedure. Respondent must file an answer to this petition.

The committee can dismiss and refer the matter to CAAP (Client Attorney Assistance Program). The grievance committee can find that the Respondent suffers from a disability and refer the case to BODA (Board of Disciplinary Appeals) or they can find professional misconduct and impose sanctions. There is a separate hearing on sanctions. Sanctions can include private reprimands, public reprimands, probation, suspension or disbarment. CFLD or Respondent has the right to appeal the decision to BODA, but the complainant does not.

Judgment of disbarment cannot be stayed.

DISTRICT COURT PROCEEDINGS The Texas Rules of Civil Procedure apply and the CDC files a petition on behalf of the CFLD with the Supreme Court. The Supreme Court appoints a judge who does not reside in Respondent=s administrative district. The Respondent may request a jury trial, and like the Evidentiary Proceeding the Respondent once served with the petition must file an answer. If misconduct is found, the judge determines the appropriate sanction. A Private Reprimand is not available and the court retains jurisdiction to enforce its judgments. A final judgment of the district court is appealed as in any other civil case. A judgment of disbarment or order revoking probation can not be stayed.

For more explicit details of the procedures used in District Court or in the local grievance committee hearings, see the Texas Rules of Disciplinary Procedure that can be found online at Texasbar.com 24

Grievance Referral Program To participate in the program, the lawyer must meet certain eligibility criteria and agree to meet with the program administrator for an assessment of the issues that need to be addressed. The lawyer must agree in writing to complete specific terms and conditions, including restitution if appropriate, by a date certain and to pay for any costs associated with those terms and conditions. If the lawyer agrees to participate and completes the terms in a timely manner, the Office of Chief Disciplinary Counsel will recommend to the Commission for Lawyer Discipline that the underlying grievance be dismissed. If the lawyer does not fully complete the terms of the agreement in a timely manner, the underlying grievance will move forward through the usual disciplinary process.

Criteria for Referral: Respondent Attorney has not been disciplined within the prior 3 years.

Respondent Attorney has not been disciplined for similar conduct within the prior 5 years.

Misconduct does not involve misappropriation of funds or breach of fiduciary duties.

Misconduct does not involve dishonesty, fraud or misrepresentation.

Misconduct did not result in substantial harm or prejudice to client or complainant.

Respondent Attorney maintained cooperative attitude toward the proceedings.

Participation is likely to benefit respondent attorney and further the goal of protection of the public.

Misconduct does not constitute a crime which would subject respondent attorney to Compulsory Discipline under Part VIII of the Texas Rules of Disciplinary Procedure.

Important Numbers at the State Bar: Client Attorney Assistant Program: 1-800-204-2222 Ext. 1777 Ethics Hotline 1-800-532-3947 Law Office Management 1-512-427-4000 Lawyers Assistance Program 1-800-343-8527 Advertising Review 25

1-800-566-4616

26

ETHICS DURING A PANDEMIC

Betty Blackwell, Attorney Sam Bassett, Attorney bettyblackwell@bettyblackwell.com

WHY DID YOU DECIDE TO PRACTICE LAW?

Grievances Statistics 2021 106,591 Active Lawyers Grievances received

7007

Dismissed as inquiries

4870

Classified as complaints

1946

After investigation, dismissal

1403

TOP SOURCES OF COMPLAINTS 1. Neglect 2. Inadequate Communication 3. Representing Multiple Defendants 4.Declining/Terminating Representation 5. Spending Client Money 6.Fees 7. Sex with Client 8.Failure to Communicate Mistake

Ethical Question

NO ------BUT BEWARE

• Does the State Bar or the Ethical Rules require a written contract in criminal cases?

• 2005 All contingent fee contracts must be in writing • Rule 1.04 says the fee shall be communicated to the client preferably in writing • Limit the scope of the representation • Set out problems, like costs, experts, appeals,etc.

• Specify when file will be destroyed

• ͳǤͲ͵ȋ Ȍ

reasonable Ǥ

• ͳ ͳǤͲ͵ȋ Ȍ

Ǥ

ǣ

Ǥ

ǣ

ǣ

not

not

PREVENTION OF COMPLAINTS

ETHICAL QUESTION

• Return all phone calls within 24 hours • Return all ee-mails • Document everything • Communicate with difficult clients in writing • Be respectful • Don’t take on too many cases • Don D t be afraid to withdraw if the client relationship Don’t deteriorates

• Do the rules prohibit flat fees in criminal cases?

• Most Important: Take Care of Yourself

NO---BUT …

Rules state: Unearned fees belong to the client & Client money must be kept separate

from attorney’s---A Trust account, not your operating account Records must be kept for 5 years

NONREFUNDABLE RETAINERS Ethics opinion 611 Issue: Can a nonrefundable retainer be

immediately placed into an operating account?

Only if that fee in its entirety is a reasonble fee solely to retain the lawyer’s service.

FLAT FEES vs. ADVANCED FEE Ethics opinion 611

FEE SETTING •Ethical issues in fee setting

If it is a payment that represents payment for

services not yet rendered—it must go into a trust account.

•Experience and expertise in fee setting

•Time limitations in fee setting •Reputation in the community in fee setting •Flat or hourly fees

PROSECUTORS AND RECENT ETHICAL ISSUES

Ethical Question

•Schultz v. Commission for Lawyer Discipline •20 2015 015 WL 9855916 9 Texas Board of Disciplinary Appeals •Article 39.14 and D.R. 3.09(d)

• Does the file belong to the client?

• Ǥ •

• Ǥ ͵ͻǤͳͶ

• ͸Ͷ͸

ETHICAL QUESTION

• ǯ ǡ ǫ • Ǧ ǫ • ǣ NoǤ Ǥ • Dz dz • Ǥ • ǡ ǡ

except those provided by the Act.

BETTER NOT T- SEE RULE 3.04

• Can a lawyer advise a witness who has not been hand served a subpoena to not show up in court?

( A lawyer shall not obstruct another’s (a) access to evidence ((e) A lawyer shall not request r re a pe person pers e other than a client to rrefrain f from m voluntarilyy g giving g relevant information ((c)(5) a lawyer shalll n not e engage in conduct intended tto d disrupt pt the jjudicial proceedings.

Valid Subpoena? p

A Article 24.04 of the Code of Criminal Proce Procedu Procedure sets out how a subpoena may be served. It now includes: cludes: clud des: (1)) Readi (1 Reading the subpoenaa in the hearing of R Re thee witness; wiitness; (2) (2 2) De 2) Delivering D g a copy of the subpoena to the witness; tnesss; (3) (3 3) E 3) Electronically llectronically transmitting g a copyy of the th subpoena, bpo oena, receipt requested, to oena o tthe las llast known electronic ectronic ectro onicc address of the witness; sss; or (4) (4 4) Maili 4) M ing a copy of the subpo Mailing subpoena oena byy certified rtifiied ied mail maail ail,, rreturn receipt requested, to the th last known address of the witness.

Who can file a grievance?

• Ethical question:

• Do I have to answer a grievance filed by a nonclient?

Processing a Grievance

COMPLAINANT:

CLIENT FORMER CLIENT FAMILY MEMBER SBOT JUDGES ANYONE So yes you must answer the grievance no matter who files it.

Written Notice of Misconduct

BIGGEST NO-NO OF ALL:

Includes Rules Violations Election of District court, with or without a jury.

Or Election for the local Grievance

committee---Private

Reprimand available here only!!!

• Not responding to the grievance

Failure to Respond Rule

8.04 Misconduct: S Section (8) fail to timely furnish to the CDC or district grievance vance committee a response, se or o other th he information as required by th the Rules of Disciplinary Procedure.

POSSIBLE SANCTIONS UPON FINDING OF PROFESSIONAL MISCONDUCT BY EVIDENTIARY PANEL •DISBARMENT •SUSPENSION WITHOUT PROBATION •SUSPENSION PARTIALLY PROBATED •SUSPENSION FULLY PROBATED •PUBLIC REPRIMAND •PRIVATE REPRIMAND (AVAILABLE ONLY FROM EVIDENTIARY PANEL)

Grievance Referral Program

Benefit of GRP?

Minor Misconduct with no discipline within the prior 3 years.

No allegations of theft Misconduct did not result in substantial harm or prejudice to the public.

Respondent is willing to engage in rehabilitative measures.

How to Avoid All of This (8% of Attorneys Will Get a Grievance Filed Against Them This Year)

Havee a written n contract Communicate C Commun mun nicatee with cclients ts; through bills, letters, s p s, phone, e emails e, Return n filess upon p n termination K Keep address addr ddrress ss current with w the th he State atee B Bar a {required {re equ eq quir irred d byy Supremee Courtt Orderr ass of, 9/1/09 09} 9} Don’t ’tt havee sexx with h clients H Have a trust t t accountt forr alll feess thatt are advancee fees ANSWER R THE E GRIEVANCE

Client Attorney Assi Assistance Program

CAAP

T Takes actio action on behalf of consumers of legal services Received 25,000 p phone calls Reestablished com R communications with lawyers in 81% of the cases Helps resolves cases so no grievance is filed

IMPORTANT ORTANT PHO PHONE NUMBERS Client Attorneyy Assistance Program 800 0000 0-204 0404 4-2222 ext. 1777

ETHICS HOTLINE 800 0000 0-532 3232 2-3947

TCDLA’S ETHICS HOTLINE 512 1212 2-646 4646 6-2734

LAW OFFICE MANAGEMENT 512 1212 2-427 2727 7-4100

www.texasbar.com Explanation of System Download Rules File Grievance online Find a Lawyer – Shows public disciplinary history

Texas Lawyers y Assistance Program 800 0000 0-343 4343 3-8527

Betty Blackwell & Sam Bassett Board Certified Attorneys in Criminal Law

bettyblackwell@bettyblackwell.com sbassett@mbfc.com PAST PRESIDENTS OF TCDLA