Tag Archives: Texas Law

Will the Beaver Eat the Gator? Buc-ee’s claims Choke Creek’s logo is too similar

Mega-roadside store chain Buc-ee’s has sued its much smaller competitor Choke Creek claiming that CC’s cowboy hat wearing alligator logo is too similar to Buc-ee’s baseball cap wearing beaver.   The trademark infringement suit was filed in December of 2015, but is being tried this week in U.S. District Judge Keith Ellison’s court in Houston.

Red for one has never confused a baseball cap with a cowboy hat or a beaver for an alligator – especially an alligator sporting some awesome “guns.”  Just saying.

Advertisements

Supreme Court Finds Texas Uses Obsolete Standard for Mental Illness in Capital Cases

On Tuesday, the U.S. Supreme Court held that Texas has been using an obsolete standard in determining whether persons convicted of capital crimes have the requisite mental capacity to deserve execution for their actions.  In a  5-to-3 decision,  the Court determined that  Bobby James Moore, who killed a store clerk in in Houston in 1980 during a botched robbery, had not been judged by a correct standard for his decided mental deficiencies.  Guilt  was not an issue; nor was the fact that Moore had extremely limited  mental abilities. In fact, prosecution’s expert witness had testified  that Moore “suffers from borderline intellectual functioning.”  The case now goes back to the Texas Court of Criminal Appeals – a court notoriously favorable to upholding death penalty convictions.  The state must come up with a new method to determine if a convicted inmate is intellectually disabled and therefore ineligible for execution.   Texas can no longer rely on decades-old medical standards and a controversial set of factors.   The Texas Tribune has more.

 Moore was convicted of capital murder and sentenced to death in July 1980, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to Texas’ brief to the high court.

In 2014, a Texas state court used current medical standards, which looks for deficits in intellectual and adaptive functioning that began as a child, to determine Moore was intellectually disabled and could not be executed. But the Texas Court of Criminal Appeals overruled the decision, claiming the lower court erred by using those standards instead of the state’s test.

The test, commonly known as the Briseno standard, was established by the Court of Criminal Appeals in 2004, two years after the U.S. Supreme Court ruled that executing the intellectually disabled was unconstitutional. The court defined the test using a medical definition from 1992 — which claims intellectual and adaptive functioning must be “related,” meaning Moore’s poor adaptive skills could be traced to something else, like an abusive childhood. The test also uses several other nonclinical factors (the Briseno factors) to help courts determine adaptive functioning. The Court of Criminal Appeals claimed, based on its test, that Moore doesn’t legally have the disability.

Included in the Briseno factors is a controversial reference to Lennie, a character from John Steinbeck’s novel “Of Mice and Men.” The Briseno opinion written by the Court of Criminal Appeals said most citizens might agree a person like Lennie, a childlike character who didn’t intend to kill a woman but simply didn’t understand his strength, should be exempt from execution. The state has argued the reference was an “aside.” Critics say it exemplifies the arbitrariness of defining intellectual disability in Texas.

In the opinion, Ginsburg faults Texas for using current medical standards in other criminal cases, but not with the death penalty.

“Texas cannot satisfactorily explain why it applies current medical standards for diagnosing intellectual disability in other contexts, yet clings to superseded standards when an individual’s life is at stake,” she wrote.

The Texas Court of Criminal Appeals ruled Moore was not intellectually disabled by looking at both intellectual and adaptive deficits. But the high court knocked down the ruling not only on adaptive functioning  — how he can learn new skills, etc. — but also on intellectual functioning as well. Previous court rulings have stated that when intellectual functioning is “borderline,” with an IQ at or around 70, the state must look into adaptive behavior. Moore’s IQ, 74, led the high court to rule that this was necessary, which is what triggered Roberts’ dissent.

Roberts agreed that the nonclinical Briseno factors are an “unacceptable method” of determining adaptive deficits but said the Texas Court of Criminal Appeals still performed its due diligence in determining Moore’s intellectual functioning.

“The Court overturns the CCA’s conclusion that Moore failed to present sufficient evidence of both inadequate intellectual functioning and significant deficits in adaptive behavior without even considering ‘objective indicia of society’s standards’ reflected in the practices among the States,” Roberts wrote. “The Court instead crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment. Today’s opinion confuses those roles.”

Moore’s case was the third time since 2002 that the high court considered the death penalty and the intellectually disabled. That year, justices ruled that executing people with intellectual disabilities is unconstitutional, but it left it up to the states to legally determine the condition. In 2014, the court weighed in on borderline cases, ruling that states can’t use an IQ below 70 as the sole way to define the disability.

In Texas, It’s a Felony to Harbor an Illegal Alien – But What Does that Mean?

The Fifth Circuit Court of Appeals has reinstated a Texas law that makes it a felony punishable by up to 10 years to harbor illegal aliens.  The ruling lifted an injunction that had blocked the 2015 law from taking full effect, in a ruling praised by both the state and immigrant advocates.

The law makes it a felony to encourage unauthorized immigrants to enter or remain in the country by concealing, harboring or shielding that person from detection.  Two landlords had sued to prevent enforcement arguing that the law was overly broad and could apply to people who rent apartments and homes to undocumented immigrants.  Texas argued that the law was intended to apply only to alien smuggling and human trafficking operations.  But that wasn’t the way the law was written and  – given the near total control of the State by the Red Meat Wing of the Republican Party – it was an open question as to who could be prosecuted.

The Fifth Circuit, in an opinion by Judge Jerry Smith, cleared the air by holding that the law as written does not apply to persons who provide shelter to or conduct business with illegal aliens.

“There is no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes ‘harboring … that person from detection.'”

Thus, landlords and homeless shelters cannot be prosecuted.  Here, the Fifth Circuit saved the bacon of the pathetic excuse for an Attorney General that is Ken Paxton by issuing a ruling that saves the statute but likely does not accomplish what the Tea Party dominated State House really wanted.

Trump Drops Texas Voters in the Grease

Coming down on the side of making it harder to vote in the face of absolutely no evidence of in-person voter fraud, the Trump Administration decided that Texas’ Voter ID law is A-Okay.  The Texas Tribune reports:

The U.S. Department of Justice confirmed Monday it plans to ditch its longstanding position that Texas lawmakers purposefully discriminated against minority voters by passing the nation’s strictest voter identification law in 2011.

The move comes one day before a federal judge is scheduled to hear arguments on that high-stakes voting rights question, and it highlights yet another instance in which President Donald Trump has dramatically departed from the path of his predecessor.

Former President Obama’s Justice Department originally teamed up with civil rights groups against Texas throughout the long-winding legal battle over the ID law, known as Senate Bill 14. But on Monday, lawyers for U.S. Attorney General Jeff Sessions told parties that they were dropping a claim that Texas lawmakers intentionally discriminated against Latino and African-American voters.

Today in Texas History – December 2

From the Annals of Faux Law Enforcement – In 2010, Our Poor Idiot Governor Rick Perry named Chuck Norris (of Walker- Texas Moron fame) and his brother Aaron as honorary members of the Texas Rangers law enforcement agency.  Criminals across the state trembled at the prospect and a couple of would be felons turned themselves in.  If only Red could know what the actual Texas Ranger in the background was thinking.

Legalize It?

Image result for legalize it

The Texas Tribune reports that Texas Legislators have filed several bills aimed at decriminalization of Marijuana.

Less than a week after several other states approved measures weakening marijuana restrictions, some Texas lawmakers are looking to do the same. 

On Monday, the first day of bill filing for the 2017 legislative session, Lone Star State legislators submitted several proposals to decriminalize small amounts of marijuana. Among the bills are those that would create a specialty court for certain first-time marijuana possession offenders, reduce criminal penalties for possession of up to an ounce of marijuana and re-classify convictions for possession of small amounts of marijuana. 

Among the Texas proposals that have been filed thus far:

House Bill 58 by state Rep. James White, R-Woodville, would create a specialty court for certain first-time marijuana possession offenders based on the principle that first-time defendants are often self-correcting. The measure is intended to conserve law enforcement and corrections resources, White said in a news release.

State Rep. Joseph “Joe” Moody, D-El Paso, filed House Bill 81, which aims to replace criminal penalties for possession of up to an ounce of marijuana with a civil fine of up to $250. The bill also allows Texans to avoid arrest and possible jail time for possessing a small amount of marijuana. Moody authored a similar bill during the previous legislative session; it did not pass.

State Rep. Harold Dutton Jr., D-Houston, filed House Bill 82, which aims to classify a conviction for possession of one ounce or less of marijuana as a Class C misdemeanor instead of Class B. However, if a person is convicted three times, it would revert back to a Class B misdemeanor. Dutton co-authored a similar bill last session with Moody.

State Sen. José Rodríguez filed Senate Joint Resolution 17, which would allow voters to decide whether marijuana should be legalized in Texas, following the pattern of a number of states.

Senate Joint Resolution 18, also authored by Rodríguez, would allow voters to decide whether to legalize marijuana for medical use if recommended by a health care provider. “It is long past time we allow the people to decide,” Rodríguez said in a statement.

Rodríguez also filed Senate Bill 170, which would change possession of one ounce or less of marijuana from a criminal offense to a civil one.

Two Texas Judges Leave GOP – Will the Trickle Become a Flood?

In the past two weeks, two Texas judges have said, “Enough” to the Tea Party dominated Texas GOP.  First Terry Jennings of the First Court of Appeals in Houston switched to the Democrats.  According to Jennings:

 “The Democratic party- and the Democratic party alone- presents our country with a positive and optimistic vision for the future of all Americans, not just a select few.”

Then this week, Judge Lauren Parish of the 115th Judicial District which serves Upshur and Marion Counties returned to the fold.  Parish had served as a Democrat but changed teams as those  rural counties turned more and more red.  Parish cited her Christian values in making the decision to return to the Democratic Party.

“The Grand Old Party of Lincoln no longer exists today. The current Republican Party has abandoned all the principles instilled in me by my parents, my church and my community.

I was brought up to respect my fellow man and to respect authority, to love my neighbor, to help those who cannot help themselves, and to help build people up not tear people down.

I see no way of reconciling my Christian beliefs with the manner in which the Republican Party is conducting itself. That is why I feel compelled to stand up and come back to the Texas Democratic Party.”

Almost too predictably, the Republican powers that be in Upshur County are now contemplating suing Parish after she issued an order making it easier for prospective jurors to do their civic duty.  Parish ordered the court house to be opened at 7:30 on jury days with the metal detector operating.  That got up the hackles of the Tea Party controlled county government and the county commissioners have hired an Austin law firm to investigate whether to sue Parish.

Red doubts that this signifies a larger trend.  It may be that some RINO judges in Harris County join Jennings in abandoning the GOP ship, but it seems unlikely right now.  If the Democrats sweep in November, Red may be singing a different tune.