School District's Dirty Little Secret

under vic rothchild how many CCISD children were sent into the pipe line ? DRop outs or incarcerated............

2009-10-17T21:38:00.000-07:00

under vic rothchild how many CCISD children were sent into the pipe line ? DRop outs or incarcerated

Hello all - we finally got the Birmingham School Offense Protocol signed
and the press has been amazing!!!!! Note brand new very useful data
from the school offense protocol pioneer, Clayton County (GA)....since
the protocol was signed in Clayton in 2004, graduation rates are up by
20%! For more info, feel free to contact me, Brian Huff (judge in
Birmingham at huffb@jccal.org), or Steve Teske (judge in Georgia at
Steve.Teske@co.clayton.ga.us). Also see PPts by both judges on the JDAI
HelpDesk here
,
titled "Narrowing the School-to-Detention Pipeline." (Just click cancel
when the site asks for a password.) and be looking for an article in
The Nation next week about Delaware and the school offense protocols.

Opinions, Editorials and Letters to the Editor from The Birmingham News

OUR VIEW: Birmingham city schools trying new policy to keep kids in
class, not in court

By Birmingham News editorial board

October 13, 2009, 5:40AM

"One more smart comment, and I'll have you arrested!"

A smart-aleck student is annoying, sure, but arresting him for a bad
attitude is, at the least, an overreaction; at worst, it's outright
irresponsible. Yet, too often in recent years, Birmingham school
students have been handcuffed and hauled off to Jefferson County Family
Court for a smart mouth or other relatively minor misbehavior.

Credit Birmingham schools interim Superintendent Barbara Allen, Family
Court presiding Judge Brian Huff and Police Chief A.C. Roper for
recognizing and understanding the serious problem and working to correct
it. They, along with the Department of Human Resources and the Jefferson
County district attorney's office, make up a group known as the
Birmingham City Schools Collaborative and have developed a new
discipline protocol to keep children safe, in school, and out of both
trouble and handcuffs. In the process, the new policy may help the city
schools increase a dismal graduation rate, currently at 52 percent,
according to Huff.

The agreement will be signed today at Jackson-Olin High School. (See
story here

3290.xml&coll=2 .)

Studies have shown arrests and graduation rates are related. A
first-time arrest during high school nearly doubles the chances a
student will drop out of school; a court appearance nearly quadruples
the chances of a student dropping out.

Yet, here's what has been happening in Birmingham schools, according to
Huff: Over the past two years, Family Court has received almost 1,000
referrals from city schools. About 98 percent of those referrals are for
misdemeanors and for fighting without weapons. A schoolyard scrap should
not end in arrests.

Nobody is arguing that serious violations -- a student with a weapon or
drugs, or an assault on a teacher or principal -- should be overlooked.
But in Birmingham schools, children have been sent to Family Court for
cursing, being loud and engaging in food fights. While Birmingham
educates 25 percent of the public school students in the area, 82
percent of the students referred to Family Court come from city schools.

As Roper said: "Too many of these kids have been criminalized." And once
they've been identified as criminals, they are more likely to continue
acting as criminals.

Another point Huff makes is that because 99 percent of the complaints
filed are against African-American children, "we have been sending the
message to black children that you are more difficult to deal with than
white children," Huff said. "It's the wrong message to send because it
isn't true."

The new Birmingham policy is based on a policy in Clayton County, Ga.,
schools, used since 2004. In Clayton County, the policy has reduced
court referrals by 60 percent and increased the graduation rate 20
percent, Huff said.

School resource officers -- police who patrol the halls of city schools
-- need to be concerned with serious matters, not with minor discipline
violations that should be dealt with by school officials. The new
protocol should keep Birmingham schools focused on their true mission:
educating kids, not arresting them.

Related coverage:

*

(10/13/09)
*

290.xml&coll=2 (10/10/09)
*

38487334235740.xml&coll=2 (3/31/09)

**********************************************************************

Danielle J. Lipow

Director, Juvenile Justice Policy Group

Southern Poverty Law Center

403 Washington Avenue

Montgomery, Alabama 36104

Tel. (334) 956-8336

Fax (334) 956-8481

**********************************************************************

NOTICE: This electronic message transmission was sent by an attorney or
at the direction of an attorney and contains information which may be
confidential and/or privileged. The electronic message and any
attachments are confidential property of the sender. The information
contained herein is intended only for the use of the intended
recipient(s). Interception, copying, accessing, disclosure,
distribution, or use of this message or any attachments by any person
other than an intended recipient is prohibited.

If you believe that you have received this electronic transmission in
error, please notify me immediately by telephone (334-956-8336) or by
electronic mail (reply to sender) and destroy all electronic and paper
copies in your possession or control.

This communication is for use by the intended recipient and contains information that may be privileged, confidential or copyrighted under applicable law. If you are not the intended recipient, you are hereby formally notified that any use, copying or distribution of this communication, in whole or in part, is strictly prohibited. Please advise the sender immediately by reply e-mail and delete this message and any attachments without retaining a copy. This communication does not constitute consent to the use of sender's contact information for direct marketing purposes or for transfers of data to third parties.

The views and opinions expressed in this communication do not necessarily reflect the official positions of the members or sponsors of SchoolToPrison.org.

You are currently subscribed to the SchoolToPrison.org Legal Listserv.

* To be removed from this listserv or to change your subscription preferences, go to http://www.schooltoprison.org/groups.cfm (must be logged in).

* To email the list moderator, send an email to schooltoprison_legal-moderator@mail.lawhelp.org.
image0011.jpg image0011.jpg
6K View Download

an Aug. 8 letter from Eric Nichols, deputy assistant attorney general for criminal justice, "The agency is in a position to know best what to do." 4u?

2009-01-31T00:01:00.000-08:00

Youth Commission changes course on older offenders

Agency head says 19- and 20-year-olds will stay in youth system.

By Mike Ward
AMERICAN-STATESMAN STAFF
Wednesday, September 26, 2007

After three months of wrangling over the proposed transfer of more than 150 19- and 20-year-old offenders to adult corrections programs, Texas Youth Commission officials on Tuesday said they have decided to keep more than half of them in youth lockups.

It was the first public indication that keeping those offenders in Youth Commission lockups was even an option. In May, the Legislature ended the troubled agency's jurisdiction over the older offenders.

Jay Janner/AMERICAN-STATESMAN

(enlarge photo)

Dimitria Pope said lawmakers were told of new plan; one disputes that.

Since then, the issue has sparked a headline-grabbing controversy over whether to transfer the youths to adult parole programs and prisons and whether their names and other details should be disclosed in the interest of public safety.

On Tuesday, Dimitria Pope, the agency's acting executive director, announced that 79 of 159 older offenders will be kept in agency lockups, and another 40 will remain on Youth Commission parole.

Only 24 will be transferred to adult parole, and eight are being referred to judges for re-sentencing to an adult prison, she said. Another eight have been released because they turned 21.

In June, Youth Commission officials proposed transferring about 130 of what was then 156 offenders to adult parole and 17 to adult prisons. No decision had been made about what to do with the rest.

By late August, Pope was telling a legislative committee that the agency had a plan to get all of the older offenders out of Youth Commission custody — and that most would go to into the adult system.

Pope said Tuesday that lawmakers had been briefed on the agency's new decision.

But House Corrections Committee Chairman Jerry Madden, an author of the law and co-chairman of a special legislative committee overseeing Youth Commission reforms, disputed that.

"I have not been briefed by anyone ... and I can tell you that our legislative intent was to get the 19- and 20-year-olds out of TYC facilities," Madden said. "I have no idea how they've come up with this. I continue to be surprised and amazed by some decisions out there."

New details disclosed by the Youth Commission on Tuesday show that nearly all the older offenders are serving time for violent and aggravated crimes, including robbery, assault, sexual assault, capital murder and manslaughter.

Pope said the decision to keep most of the offenders in Youth Commission custody was made so they can continue in treatment programs.

Asked why some youths were still being transferred to adult parole and prison if her agency could legally retain custody, Pope said the cases were decided on an individual basis by a Youth Commission review panel and signed off on by the attorney general's office. She gave no further details.

In June, after the law took effect, Youth Commission officials had moved to transfer all 19- and 20-year-olds from their custody because, as they insisted at the time, lawmakers had removed their jurisdiction to continue holding them. Sponsors of Senate Bill 103 said that the older offenders had no place mingling with younger offenders — and that rehabilitation and discipline in youth prisons could be improved with them gone.

Pope cited an Aug. 8 letter from Eric Nichols, deputy assistant attorney general for criminal justice, that she said gave her agency permission to continue holding the 19- and 20-year-olds. Just weeks ago, the same letter was being quoted by lawmakers to bolster their argument that the same offenders should leave the Youth Commission.

Nichols could not be reached for comment on his intent. But Tom Kelly, a spokesman for Attorney General Greg Abbott, said "the letter is still valid. ... It speaks for itself."

Senate Criminal Justice Committee Chairman John Whitmire, Madden's co-chairman on the special committee, said that although the goal of the new law "was to get the 19- and 20-year-olds out ... I support the agency's decision to do this."

"Coming out of the legislative session, there was a drumbeat to get them all out as quickly as possible, but now I think the AG's office has given them an alternative," Whitmire said. "The agency is in a position to know best what to do."

Your Comments

Austinites love to be heard, and we're giving you a bullhorn. We just ask that you keep things civil. Leave out the personal attacks. Do not use profanity, ethnic or racial slurs, or take shots at anyone's sexual orientation or religion. If you can't be nice, we reserve the right to remove your material and ban users who violate our visitor's agreement

Yeah his pants fell ? prove it was self hoisted hook 'em forensics, could of been your child Spangler? Evidence-where is it?

2008-11-14T23:02:00.000-08:00

Jeremy Landers

Story Created: Jan 31, 2008 at 5:34 PM CST

Story Updated: Jan 31, 2008 at 5:47 PM CST

AUSTIN (AP) - Austin police today questioned students and staff of a charter school after a boy was found hanging by his collar on a dressing room clothing hook.

The seven-year-old, whose name wasn't released, is hospitalized in critical condition.

Lieutenant Mark Spangler says the boy's shirt collar had cut off oxygen and he was unconscious when a teacher discovered him yesterday.

Spangler says it's a "complete tragedy" and nothing is being ruled out.

Police earlier raised concerns that the boy had been attacked at the -- Not Your Ordinary School campus of pre-kindergarten through third grade.

But later, Austin police said the hook was low enough that the boy might have gotten himself stuck.

Spangler also confirmed that the boy's pants were down around his ankles when he was found.

But investigators believe the pants fell while the boy was suspended. Police have no evidence of sexual abuse.

AP-NY-01-31-08 1739EST

"What amount of money, if any, if paid now in cash do you find from a preponderance of the evidence would reasonably compensate Gerald Reicheneder for

2008-11-07T19:50:00.000-08:00

« up

421 F.2d 307

Gerald G. REICHENEDER, Plaintiff-Appellee,
v.
SKAGGS DRUG CENTER, Defendant-Appellant.

No. 27286.

United States Court of Appeals, Fifth Circuit.

January 29, 1970.

David M. Kendall, Jr., Dallas, Tex., for plaintiff-appellee; Victor L. Terry, Terry, Fuller & Parker, Garland, Tex., Woodruff, Hill, Kendall & Smith, Dallas, Tex., of counsel.

Before THORNBERRY, GODBOLD and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

This is an appeal from a jury verdict rendered for the plaintiff-appellee in the United States District Court for the Northern District of Texas. The action was grounded on three theories of recovery (1) slander, (2) false imprisonment and (3) malicious prosecution, and the court granted judgment on the findings of the jury on the basis of malicious prosecution and/or false imprisonment for damages in the amount of $10,000.00 and slander for damages in the amount of $15,000.00.

Gerald Reicheneder, plaintiff-appellee, was in Skaggs Drug Center, appellant store, which was essentially a self-service or supermarket operation, on the evening of May 29, 1967. Reicheneder made a purchase in the store and continued to shop there.

Reicheneder testified that while browsing he picked up two sparkplugs. Frank Kubasek, the manager of this store, testified that from his office he could observe the floor and saw Reicheneder put the sparkplugs in his coat pocket and observed him walk to the front of the store. Kubasek left his office and proceeded to stop Reicheneder, asking him if he had anything in his pocket that belonged to the store, and appellee replied that he did. Reicheneder testified that he kept the sparkplugs in his hand, and did not have them in his coat pocket. Reicheneder repeatedly admitted to having the sparkplugs in his possession. There was still a checkout counter that plaintiff had not passed at the time he was stopped by Kubasek. Reicheneder was asked by Kubasek to come to the manager's office, and he complied voluntarily. After entering the office there was a discussion during which time Mr. Maples, the assistant manager, was present. During the conversation Maples was instructed by the manager to call the police, and police officers arrived. Kubasek explained to the police officers what had taken place and that he "had a shoplifter", pointing out Reicheneder. The police took plaintiff into custody, led him from the store through the sales area, handcuffed him outside the store and took him to the police station where he was detained for twenty or thirty minutes and charged with shoplifting. Kubasek testified that he had mentioned this incident to some of his employees, stating that he had a shoplifter but not giving Reicheneder's name. Reicheneder was later tried on the charge of shoplifting and was acquitted.

Initially, we have determined that it is unnecessary to pass on the several procedural questions outlined by the appellee Reicheneder in that a study of the substantive points raised by Skaggs Drug Center reveals that the decision of the lower court should be affirmed and the verdict favoring Reicheneder sustained.

The question of malicious prosecution may be dismissed with a very simple statement of the Texas law on this issue. The case of Dallas Joint Stock Land Bank of Dallas v. Britton, 134 Tex. 529, 135 S.W.2d 981 (Tex.Com.App., Sec. A, 1940) is relied on heavily by both parties to this suit and contains a basic review of the Texas law of malicious prosecution and false imprisonment.

"The distinction between malicious prosecution and false imprisonment, as well as the essential elements of each offense, are stated in the following quotation from 28 Texas Jurisprudence, pages 446, 477: `There is a fundamental distinction between an action for malicious prosecution and one for false imprisonment. False imprisonment is an unlawful and unauthorized interference with the personal liberty, while malicious prosecution consists in procuring the arrest or in the prosecution of the plaintiff under lawful process on the forms of law, but from malicious motives and without probable cause. In other words, if the imprisonment was under lawful process, but the prosecution was commenced and carried on maliciously, a malicious prosecution is shown, while if the arrest or imprisonment was without lawful authority, an action for false imprisonment lies.'" Dallas Joint Stock Land Bank of Dallas v. Britton, supra.

It is clear from the above that malice is one of the elements that must be present before a charge of malicious prosecution may be sustained. In answer to Special Issue No. 3, the jury found that no malice was present. Special Issue No. 3 reads, "Do you find from a preponderance of the evidence that in causing the complaint involved herein to be filed Frank Kubasek acted with malice?" The jury answered this question, "No". In the absence of a finding of malice, the matter of malicious prosecution must fall.

However, the trial court granted judgment in the amount of $10,000.00 on the basis of malicious prosecution and/or false imprisonment, i. e., styled in the alternative. In that the portion of plaintiff's theory of recovery founded on false imprisonment is correct, the judgment is affirmed.

Essentially, appellant's argument as to false imprisonment is that there is not sufficient evidence to support a finding of false imprisonment, and that the jury made no determination on false imprisonment and was given no opportunity to do so by the trial court. False imprisonment in Texas is the direct restraint by one person of the physical liberty of another, without adequate legal justification. It has been judicially defined as "the wilful detention by another without legal justification, against his consent, whether such detention be effected by violence, or by threats or by any other means, which restrains a person from moving from one place to another". Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ. App.1964) Appellant Skaggs Drug Center argues that when the act of a store manager is such that he requests a customer to accompany him somewhere, or to return to the store, this in itself does not constitute false imprisonment if the customer voluntarily returns to the store or accompanies the manager in a willing manner. Appellant cites two cases that he contends supports this proposition. See S. H. Kress & Co. v. DeMont, 224 S.W. 520 (Tex.Civ.App.1920); J. C. Penney Co. v. Romero, 318 S.W.2d 129 (Tex.Civ.App.1958). In the Romero case, the court reasoned that in giving consent the plaintiff would not be detained by an act of violence or a threat, or by other means which refrained him from moving from one place to another as he saw fit, and that, accordingly, one of the elements of the action was missing. In light of these cases we must agree with the appellant that Reicheneder was not being falsely imprisoned when he returned to the office of the manager.

However, the false imprisonment commenced when, under the directions of Kubasek, Maples, the assistant manager, called the police and the police officers took custody of the plaintiff. When a person points out another as the perpetrator of a crime and requests or directs police officers to arrest him, the person making the request or the direction is liable for subsequent false imprisonment even though he acted in good faith. J. C. Penney Company v. Reynolds, 329 S.W.2d 104 (Tex.Civ.App. 1959); McDonald v. Henderson, 250 S. W. 463 (Tex.Civ.App.1923); Karner v. Stump, 12 Tex.Civ.App. 460, 34 S.W. 656 (1896); 25 Texas Jurisprudence 2d, False Imprisonment, § 21, p. 256. The arrest here involved did not satisfy any of the requirements of the Texas law having to do with arrest without a warrant, and, therefore, was an illegal detention. Code of Criminal Procedure of Texas, Chap. 14. In Hubbard v. Lord, 59 Tex. 384 (1883) the court observed that in a false imprisonment case, the arresting officer and the party inducing the arrest and the magistrate assuming to issue the unauthorized warrant were liable as joint tortfeasors, or trespassers, and further observed that the question of probable cause and malice is of no consequence whatever in connection with this matter of false imprisonment, the sole question being whether or not the arrest is made properly and in accordance with the provisions of the law. It is well supported in the testimony that Mr. Reicheneder was detained by the police officers at the request of Mr. Kubasek. This arrest by the police was wrongful. See Price v. Durdin, 207 S. W.2d 228 (Tex.Civ.App.1947). Accordingly, Skaggs Drug Center, for whom Kubasek was acting at all times, is responsible for the false imprisonment and the damages flowing from it.

Appellant's contention regarding the failure of the trial court to submit the question of false imprisonment to the jury is also without validity. The lower court submitted Special Issue No. 2 to the jury which asked: "What amount of money, if any, if paid now in cash do you find from a preponderance of the evidence would reasonably compensate Gerald Reicheneder for damages directly resulting from the unlawful arrest, if any, on the occasion in question? Answer in dollars, if any, and cents, if any". The jury determination was that $10,000.00 would reasonably compensate Reicheneder. Appellant relies on Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App.1964), for the proposition that it is reversible error if the trial court does not instruct the jury on the definition of false imprisonment, and that the jury must determine if the arrest is unlawful. However, in Skillern the court merely recited the charge used in the lower court, traced its origin in case law and concluded, "[i]n view of all the evidence, we think the instruction was sufficient". The teachings of that case do not require that such an instruction be submitted to the jury and we are cognizant of no case law that would sustain appellant in this argument.

Appellant contends that Reicheneder was not slandered by Kubasek, arguing that there was no publication. It is well established in Texas law that there must be publication in such a way that a third person understands it before a statement is actionable. Burnaman v. J. C. Penney Co., D.C., 181 F. Supp. 633; Montgomery Ward & Co. v. Peaster, 178 S.W.2d 302 (Tex.Civ.App. 1944); McDaniel v. King, 16 S.W.2d 931 (Tex.Civ.App.1929). In the case at bar, Kubasek testified that he informed employees of the store that a shoplifter had been apprehended, and later Reicheneder was escorted through the store by police officers in the presence of these same employees and others.

It is quite clear that the words spoken were slanderous in that it has been stated in several Texas cases that to charge a person with or impute to him the commission of any crime for which punishment by imprisonment in jail or the penitentiary may be imposed is slanderous or libelous per se. Davila v. Caller Times Pub. Co., 311 S.W.2d 945 (Tex.Civ.App.1958); Elder v. Evatt, 154 S.W.2d 684 (Tex.Civ.App.1941); Skillern v. Brookshire, 58 S.W.2d 544 (Tex. Civ.App.1933). It is equally as clear that there was adequate publication to support this action in slander. Reicheneder was taken from the store in the accompaniment of police officers in view of employees who were told earlier that a shoplifter was in custody. Under such conditions there is no doubt that the employees, by using only the slightest of reasoning, concluded that Reicheneder had been apprehended for shoplifting.

In regard to the issue of proximate cause, appellant contends that since the district court failed to submit to the jury the matter of damages in terms of proximate causation, the verdict of the jury is invalid and cannot support the judgment of the trial court. As authority for this position, appellant relies specifically on the following styled cases: Tyler Mirror and Glass Co. v. Simpkins, 407 S.W.2d 807 (Tex.Civ.App.1966); Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942); Scott v. Gardner, 159 S.W.2d 121 (Tex. Civ.App.1942). These cases indicate that Texas law is well settled that there must be a proximate cause between the injury and the damages before recovery may be had. The case of Scott v. Gardner, supra, reaffirms this rule of law and outlines what is required of the court in its instructions to the jury:

"A defendant is liable only for such damages as are the proximate result of his wrongful act. The charge of the court should, in some manner, limit the jury to the consideration of damages proximately caused by defendant's wrongful act. In determining whether there is error, and in determining whether the error requires a reversal, the entire charge must be examined, and must be considered in the light of the precise situation existing at the time the supposed error was committed. An error which in one situation would materially affect the result, might in a different situation have no effect upon the result of the case." [Emphasis Supplied]. Scott v. Gardner, supra.

The important factor emphasized in this case and others is that damages must be the proximate result of the injury and that the jury must be advised that such is the law. In the present action, the charge contained the following references to the issue of causation that appear to satisfy the mandate of the court in Scott, i. e., that the jury be instructed on proximate cause "in some manner". Special Issue No. 2 requested the jury to find the amount of damages "directly resulting" from the false imprisonment. Special Issue No. 11 asked whether the jury found plaintiff was damaged "as a direct result" of the slander. Special Issue No. 12 requested the jury to find the damages "directly resulting" from the slander. Although the lower court did not present a lengthy review of proximate causation to the jury, its use of the term "direct" effectively limited the damages to those resulting from the injury. A charge should be studied in light of its own special facts and circumstances, and as the teachings of Scott acknowledge, what may be reversible error in one situation may not be such in another. This contention of the appellant does not rise to reversible error.

In conclusion, the two findings of damages by the jury are argued as being shocking — wholly based on non-existent evidence. As to false imprisonment, the measure of damages for an unlawful arrest is the value of time lost, injury to business, and the suffering, bodily and mental, which the arrest may have occasioned plaintiff. S. H. Kress & Co. v. Rust, 97 S.W.2d 997 (Tex.Civ. App.1936); Newburn v. Durham, 10 Tex.Civ.App. 655, 32 S.W. 112 (1895). Mental suffering is an element of damages recoverable in a false imprisonment case. Chicago, R. I. & G. Ry. Co. v. Neubert, 248 S.W. 139 (Tex.Civ.App. 1923). The fact that no physical hurt was inflicted on one complaining of false arrest is no ground for denying recovery of reasonable compensation for mental suffering, of which humiliation, shame, and fright are elements to be considered. McDonald v. Henderson, 250 S.W. 463 (Tex.Civ.App.1923). As general damages cannot be measured with any certainty, the sound discretion of the jury, under all the circumstances, is the only practicable measure. Gold v. Campbell, 54 Tex.Civ.App. 269, 117 S.W. 463 (1909). Accordingly, in view of the fact that Reicheneder was paraded through the store by the police in full view of several people and would have an arrest record in the future, we cannot rule that an award of $10,000.00 for false imprisonment is excessive or improper.

As to the question of slander, the jury returned a verdict in the amount of $15,000.00. "It is a well-recognized rule that when words are libelous per se it is not necessary to allege or prove special damages, for malice and damages are implied." R. G. Dun & Co. v. Shipp, 60 S.W.2d 502 (Tex.Civ.App. 1933). See Gibler v. Houston Post Company, 310 S.W.2d 377 (Tex.Civ.App. 1958). The award of damages is within the province of the jury and should not be disturbed unless there is clear showing of excessiveness or impropriety on the part of the jury. Marsalis Motors v. Simmons, 303 S.W.2d 510 (Tex.Civ.App. 1957). In view of the particular facts of this case, we cannot hold that an award of $15,000.00 is an excessive recovery for the slanderous accusation that Reicheneder was a thief. This jury verdict should not be disturbed.

This case is affirmed as to all issues.

Affirmed.

juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. ....Like, duh..sheesh

2008-10-02T02:39:00.000-07:00

Send this document to a colleague

Close This Window

NUMBER 13-06-295-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

EMERICO GARCIA, II, Appellant,

THE STATE OF TEXAS , Appellee.

On appeal from the 105th District Court of Kleberg County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza

Memorandum Opinion by Justice Yañez

A jury found appellant, Emerico Garcia, II, guilty of burglary of a building under the law of parties.⁽¹⁾ The trial court assessed punishment at two years' imprisonment, suspended for five years. The court also imposed restitution, a fine of $1,000.00, and $318.00 in court costs. On appeal, appellant asserts that the evidence is legally and factually insufficient to support his conviction, and that he was denied his right to a unanimous verdict. The State did not file a brief. Because we conclude the evidence is legally insufficient to show appellant committed burglary of a building, we reverse the trial court's judgment and render a judgment of acquittal.⁽²⁾

I. Background

On April 21, 2006, appellant and Jose Jimenez, appellant's step-father, were both indicted on two counts of burglary of a building. As to appellant, the indictment alleged through two counts that on August 15, 2005, appellant entered a building that was not open to the public, with the intent to commit theft, and without the effective consent of the building's owner, Roger Polly. Appellant and Jimenez were tried together and were both found guilty.⁽³⁾ As to count one, appellant was found guilty of burglary under the law of parties. He was found not guilty as to count two.

II. The Evidence

1. Testimony of Roger Polly

Appellant and Jimenez worked for Roger Polly at the time of the burglary. Items belonging to Polly were stolen from his "shed" and "Connex building." Roughly 50 videotapes were taken from the Connex building, while a battery charger and two grinders were taken from the shed. On the evening of August 15, 2005, Polly learned that these items had been stolen when an employee informed him that Victor Hernandez, who was also one of Polly's employees, had reported seeing Jimenez take "a bunch of stuff" out of the shed and Connex building. The next morning, Polly inspected the inside of the two buildings, whereupon he noticed that various items were missing. Polly then talked to Hernandez about what he had observed, and the two subsequently contacted law enforcement authorities.

2. Testimony of Victor Hernandez

On the morning of August 15, 2005, Hernandez, Jimenez, and appellant went to Polly's house to paint trailers. When they arrived at Polly's home, Jimenez parked his vehicle near the Connex building. Later that day, Hernandez and appellant walked to a nearby pond; from the pond, Hernandez saw Jimenez enter one of the two buildings and load two boxes into the trunk of his vehicle. He was not able to tell what, if anything, was contained within the two boxes. Hernandez never witnessed appellant take any items, nor did he witness appellant assist Jimenez in taking items.

3. Testimony of David Alberto Mendoza

David Alberto Mendoza is a deputy sheriff with the Kleberg County Sheriff's Office. After talking with Polly and Hernandez, Mendoza contacted appellant and asked if he would come to the sheriff's office to speak with him. Appellant met with Mendoza and provided him with a written statement, which stated the following:

Victor Hernandez had told me the [sic] Jose Jimenez had took [sic] a bag full of videotapes and had put them in the trunk of the car. Jose had told me and Victor that Mr. Polly was probably going to throw them away anyway. On August 18, 2005 is when I had went [sic] to go watch a video with Jose and from what I saw there was about close to a 100 video's [sic] there at the house. I was also there when Jose bought that tool set. Jose had also took [sic] a case of freeon [sic] cans to my grandfathers [sic] house. Victor had also told me that he also took a bag of videotapes also. When we were working at Mr. Polly's home Jose would tell me to watch to see if Mr. Polly was coming and he told me to whistle or throw a rock at the shed. Victor would also go in there with Jose to see what was in there. I had watched two videos with Jose and the movies where [sic] Pearl Harbor and an old western movie. Jose and Victor had taken the bags of videotapes days before and I knew that they were Mr. Polly's video's [sic] because Jose had told me. I Emerico H. Garcia II did not take anything from Mr. Polly's home.

I want to add that on the last day of work I had saw [sic] Jose with the paint pot and he put it in the trunk and we came home and he unloaded it and I saw that he put it behind his shed. There was a paint gun attached to the hoses and the pot it's self [sic].

After receiving appellant's statement, Mendoza went to Jimenez's home.⁽⁴⁾ When he arrived at the home, Jimenez's wife (appellant's mother) consented to Mendoza entering the home. Mendoza recovered several videotapes belonging to Polly inside the home; no other items belonging to Polly, however, were ever recovered.

4. Additional Witness Testimony

David Longoria, a patrol lieutenant for the Kleberg County Sheriff's Office, testified that he observed appellant write his statement to Mendoza. According to Longoria, the statement was written voluntarily.

Jimenez testified that he did place two boxes into his trunk as witnessed by Hernandez, but that the boxes did not contain any items belonging to Polly. With regard to the videotapes found in his home, Jimenez alleged that the videotapes were given to him by Hernandez, who claimed to have found them in Polly's trash. Jimenez further stated that, according to appellant, appellant's statement to Mendoza was not written voluntarily.

Appellant testified that Mendoza told him what to write in his statement. Appellant further stated that when he refused to write the statement, Mendoza threatened to place him in jail.

III. Legal Sufficiency of the Evidence

In assessing the legal sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.⁽⁵⁾ The reviewing court must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts."⁽⁶⁾ In reviewing the sufficiency of the evidence, we should look at "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act."⁽⁷⁾ Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.⁽⁸⁾ Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.⁽⁹⁾ On appeal, the same standard of review is used for both circumstantial and direct evidence cases.⁽¹⁰⁾

IV. Discussion

For the jury to find appellant guilty under count one, the State had to prove beyond a reasonable doubt that (1) Jose Jimenez, (2) on or about August 15, 2005, (3) in Kleberg County, Texas, (4) did then and there, (5) with the intent to commit theft, (6) enter (7) a building not then open to the public, (8) without the effective consent of (9) Roger Polly, the owner thereof, and (10) appellant, (11) did then and there (12) with the intent to promote or assist the commission of the offense, (13) solicit, encourage, direct, aid or attempt to aid Jose Jimenez (14) to commit the offense of burglary of a building. After reviewing all the evidence in the light most favorable to the verdict, we find that there is no evidence to support the contention that appellant solicited, encouraged, directed, aided, or attempted to aid Jose Jimenez in committing burglary.

The only witness who attempts to implicate appellant for the offense charged is Mendoza, and this is done through his presentation of appellant's written statement. The statement largely reveals that appellant was aware that Hernandez and Jimenez had stolen items from Polly; it further reveals that appellant may have been present during these thefts. Appellant's mere presence and knowledge of the crime, however, is insufficient to support his conviction for the crime.⁽¹¹⁾

The only evidence supporting appellant's guilt under a party theory is the following excerpt from appellant's statement: "When we were working at Mr. Polly's home Jose would tell me to watch to see if Mr. Polly was coming and he told me to whistle or throw a rock at the shed." This excerpt, however, does not establish that appellant actually stood watch and alerted Jimenez to the presence of others; it simply indicates that appellant was asked to do so, without any indication as to whether he actually complied. We are thus confronted with the question as to whether the jury could reasonably conclude that appellant complied with Jimenez's requests.

The Texas Court of Criminal Appeals recently addressed the proper use of "inference stacking" in criminal legal sufficiency review. In Hooper v. State, the court stated:

Under Jackson v. Virginia, courts of appeals assessing legal sufficiency are to consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.

Under the Jackson test, we permit juries to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial. However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. To correctly apply the Jackson standard, it is vital that courts of appeals understand the difference between a reasonable inference supported by the evidence at trial, speculation, and a presumption. A presumption is a legal inference that a fact exists if the facts giving rise to the presumption are proven beyond a reasonable doubt. . . . In contrast, an inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt.

As stated above, juries are permitted to draw multiple reasonable inferences from the evidence (direct or circumstantial), but they are not permitted to draw conclusions based on speculation. . . .⁽¹²⁾

In the instant case, concluding that appellant aided Jimenez in committing burglary would be predicated upon factually unsupported inferences or presumptions. The testimony of Polly, Hernandez, Jimenez, and appellant does not provide any support for such a conclusion. Therefore, concluding that appellant complied with Jimenez's requests would be based on mere speculation--"mere theorizing or guessing about the possible meaning of facts and evidence presented."⁽¹³⁾ Because the jury could not, on speculation alone, find--beyond a reasonable doubt--that appellant solicited, encouraged, directed, aided or attempted to aid Jimenez in committing burglary, we find that the evidence is legally insufficient to support appellant's conviction. Accordingly, we sustain appellant's first issue.

V. Conclusion

We reverse the judgment of the trial court and render a judgment of acquittal.

LINDA REYNA YAÑEZ,

Justice

Do not publish. Tex. R. App. P. 47.2(b).

Memorandum opinion delivered and filed

this the 2nd day of August, 2007.

1. Tex. Penal Code Ann. § 30.02(a)(1) (Vernon 2003).

2. Because we conclude that the evidence is legally insufficient to sustain appellant's conviction, we need not address appellant's remaining issues. See Tex. R. App. P. 47.1.

3. The propriety of Jimenez's conviction is not an issue before this Court.

4. Testimony at trial appears to reveal that Jimenez and appellant did not live at the same location.

5. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

6. Jackson, 443 U.S. at 318-19.

7. Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985).

8. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) ("It is not necessary that every fact point directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances."); Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987).

9. Guevara, 152 S.W.3d at 49.

10. Id.

11. Emmett v. State, 654 S.W.2d 48, 49 (Tex. Crim. App. 1983) (holding that one is not "an accomplice witness merely because he knew of the crime but failed to disclose it or even concealed it"); Brown v. State, 640 S.W.2d 275, 279 (Tex. Crim. App. 1982) (holding that "mere presence at the scene of a crime is insufficient to make a witness an accomplice"); Russell v. State, 598 S.W.2d 238, 249 (Tex. Crim. App. 1980); Arney v. State, 580 S.W.2d 836, 839 (Tex. Crim. App. 1979), abrogated in part on other grounds by Giesberg v. State, 984 S.W.2d 245, 247-48 (Tex. Crim. App. 1998).

12. Hooper v. State, 214 S.W.3d 9, 15-16 (Tex. Crim. App. 2007) (emphasis added; citations and footnotes omitted).

13. Id. at 16.

Family Code or Education Code which one is in CONTROL????????????

2008-06-10T02:24:00.000-07:00

IN THE SUPREME COURT OF TEXAS

════════════

No. 03-0266

════════════

In The Matter of J.P., A Juvenile

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Second District of Texas

════════════════════════════════════════════════════

Argued February 4, 2004

Justice Schneider, joined by Justice O=Neill and Justice Jefferson, concurring.

I join the Court=s opinion but write separately to express my concern and bring to the Legislature=s attention the result that the statute could have in certain circumstances.

A plain reading of subsections 54.04(I), 54.05(f), and 54.05(k) allows a juvenile that has committed a relatively minor infraction to be committed to TYC without a finding by the trial court that such disposition is in his or her best interests or necessary to protect the public safety. Tex. Fam. Code '' 54.04(I) and 54.05(f), (k). As Justice Rickhoff has emphasized, In re H.G. provides one such example. 993 S.W.2d 211, 215 (Tex. App.BSan Antonio 1999, no pet.) (Rickhoff, J., concurring). There, the juvenile was initially adjudicated for criminal mischief, $20-500. Id. His initial disposition resulted in six months of home probation. Id. While serving that probation, his disposition was modified, and he was committed to TYC. The acts that resulted in his committal were failing to attend the required probation counseling because his father Adid not approve of@ it and failing to pay restitution because his mother vetoed his job prospect. Id. I agree with Justice Rickhoff that such acts alone should not warrant commitment to an institutional juvenile facility without a finding that it is in the child=s best interest. Yet, under this statute, the trial court was within its discretion in committing the child in In re H.G. to TYC without that finding.

The Court here emphasizes that A[i]f a trial court abuses its discretion by arbitrarily removing a child from home for trivial infractions, nothing in the statute prohibits the appellate judges of Texas from doing something about it.@ __ S.W.3d __. While this may be true, results like that in In re H.G. suggest that the amount of discretion afforded trial courts in this area is exceedingly broad. And nothing in the statute or in our opinion today gives sufficient guidance to trial courts on how to deal with those cases that are on the margins.

TYC is the most severe form of incarceration contemplated in the juvenile justice scheme for an eleven-year-old child. Historically, the Legislature has expressed its intent that the commitment be reserved for only serious juvenile offenders. See, e.g., Criminal Justice Policy Council, The Changing Profile of the Texas Youth Commission Population 4 available at www.cjpc.state.tx.us/reports/alphalist/index.html (Sept. 1996). For one, a juvenile commitment, away from the child=s family, will undoubtedly have a permanent, lasting effect on any child that goes to TYC. Also, the Legislature has not overlooked the fact that TYC commitment costs the State over $50,000 a year per child. See Criminal Justice Policy Council, Mangos to Mangos: Comparing the Operating Costs of Juvenile and Adult Correctional Programs in Texas 10, 12 (Jan. 2003), available at www.cjpc.state.tx.us/reports/alphalist/index.html.

In certain cases, sending a child to TYC may provide a more proper environment and be in that child=s best interests. However, I find it hard to believe that the Legislature intended for children that committed only minor infractions to be sent to TYC without first finding that it is in the child=s best interests. But on its face, this statute allows that result.

As the Court points out, the first purpose of the juvenile justice code is to provide for the protection of the public safety. Tex. Fam. Code ' 51.01(1). If a child poses a legitimate physical threat to those around him or her, TYC is a proper alternative. However, not all children that may be committed to TYC under this statute pose such a threat. Consistent with protecting the public, the code also encourages Aseparating the child from the child=s parents only when necessary for the child=s welfare or in the interest of public safety.@ Tex. Fam. Code ' 51.01(5). Thus, according to this purpose, it appears that the Legislature intended for the child=s interests to be considered before separating the child from his parents and sending him to TYC. But, as we properly hold today, the plain wording of the statute does not require this when juvenile dispositions are being modified. See Tex. Fam. Code ' 54.05. I would urge the Legislature to reevaluate this statute and to change it if the Legislature intended to require more before committing a child to TYC.

______________________________

MICHAEL H. SCHNEIDER

JUSTICE

OPINION DELIVERED: May 14, 2004

Texas a Corporate Welfare State of Corporate Welfare

2008-05-23T04:00:00.000-07:00

Technorati Profile

(if)there was no malicious intent behind the policies, which had been in place for some time. Why?

2008-05-15T00:23:00.000-07:00

Office Of Civil Rights Finds CCISD In Violation Of Equal Sports Funding

Updated: May 13, 2008 08:40 AM
Office Of Civil Rights Finds CCISD In Violation Of Equal Sports Funding

CORPUS CHRISTI-The Office of Civil Rights has ruled in favor of a parent who complained of inequalities in CCISD's sports programs for boy and girls. Jeanne Bowman filed the complaint more than two years ago. Bowman is happy with the ruling and pledges to continue her fight to help make sports fair for all students.

She said she noticed a sort of favoritism toward boys sports over girls in some CCISD high schools when her own daughter was a student athlete her freshman year.

Bowman told KRIS 6 News, "I went from Principal to Athletic Director to CFO, you know, downtown. And it just wasn't a problem for them."

So, in 2006, Bowman took her complaints to the Office of Civil Rights (OCR). During that time, she said the district fixed some of her issues on its own, like hiring more athletic trainers and advertising all sporting events, instead of just men's games.

But, this weekend, Bowman finally got word that OCR found CCISD in violation of Title Nine, which relates to equal funding for boys and girls sports.

As a result, CCISD must waive a $185 fee set in place for girl's volleyball players, as well as get better equipment for girl's softball at Carroll High School.

"Had I done a lawsuit, it would have cost the taxpayers hundreds of thousands of dollars in attorney fees for these kind of results," Bowman commented.

CCISD Superintendent Scott Elliff told 6 News there was no malicious intent behind the policies, which had been in place for some time.

Elliff confirmed, "OCR is requiring us to come up with a plan of action to remedy those two specific findings which we should be able to take care of pretty quickly this summer."

Bowman said she is happy with her progress, but she will keep tracking the athletic program to make sure its fair for all to play sports.

Online Reporter: Melissa Monti

former Cullen M.S. School principal is true to his current assignment as a Janus face double talking drone. The Cervantes Group or Elliff ?

2008-05-09T02:02:00.000-07:00

nd the Cervantes Group can't handle the TAKSKI the have inherited.......Puppets or just trying to kiss ass that may be reassigned afterwards??

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Politics~ Money~ You've got another thing coming............
Posted on May 7, 2008 at 06:57:17 AM by d1

show details 12:21 AM (4 hours ago)
Originally Written and reposted from an email received from Jaime Kenedeno

Wake up boy and girls, Politics have no place in high school athletics. Who would transfer a winning coach right before the season begins and more importantly why? Once the Article is written it will be published and all of the research connecting the dots to the ones who leverage bond finances and campaign finances for a position that can only be earned.

TTFN

FOR IMMEDIATE RELEASE

LULAC Council No. 1 and the American GI Forum will hold a press conference to address concerns regarding the forced transfer of Mary Carroll High School Volleyball Head Coach Doris Elizondo; who holds 149 wins and 5 losses as well as 5 consecutive District Championships and 2 undefeated District seasons while at Carroll High School .

Certain members of the Carroll High School Boosters have pressured Carroll High School Administrators to transfer Ms. Elizondo for reasons that have not been made clear or were either not presented to Ms. Elizondo in a timely fashion; allowing her to address or correct them.

LULAC Council No. 1 and the American GI Forum feel that Ms. Elizondo has been denied due process within the CCISD administration and therefore, her civil rights are being violated both by the school's administrators and those members of the Carroll High School Boosters who have targeted her for removal.

The press conference will be held in front of Mary Carroll High School (on Tiger Lane side in front of the school offices) at 4:00 pm on Wednesday, May 7, 2008 .

Think I will let it go your mad.....................

Carroll principal: Elizondo not reassigned....... YET
Posted on May 9, 2008 at 02:34:07 AM by Jaime Kenedeno

Carroll principal: Elizondo not reassigned
Players, fans gather to protest volleyball coach's possible exit

By Stuart Duncan (Contact)
Originally published 05:27 a.m., May 8, 2008
Updated 05:27 a.m., May 8, 2008

Carroll High School head volleyball coach Doris Elizondo currently is not being reassigned, according to one school official. Yet a spokesperson for Elizondo said Wednesday the coach still fears she could be.

Nearly 100 people gathered across the street from Carroll on Wednesday afternoon in support of Elizondo. Many of those were current Tigers volleyball players decked out in "We want Coach E to Stay" T-shirts and holding up banners in support of the coach.

Carroll High School principal Bobby Templeton said Wednesday that "as of today, no final decision has been reached by this school district concerning the reassignment of Coach Elizondo."

"Coach Elizondo, and all other coaches and administrators, are fully aware that reassignment of job duties is a possibility," Templeton added. "Since this is a personnel issue, we cannot comment on specific details. However, issues have been raised by parents, staff and community members concerning her actions, which prompted my investigation into these matters."

Corpus Christi Independent School District superintendent Scott Elliff, CCISD athletic director Brenda Marshall, and Carroll High School athletic director Terry Morris were unavailable for comment Wednesday.

Elizondo referred all questions about her coaching status Wednesday to League of United Latin American Citizens Council No. 1 education chairperson Susie Luna-Saldana.

Luna-Saldana led Wednesday's rally for Elizondo and played a tape recording for those in attendance in which she says that Morris, who she said knew he was being taped, told Elizondo that she would be reassigned in May.

"Unfortunately this is happening because there are certain parents that want coach Elizondo moved," Luna-Saldana said. "Coach Elizondo has never been written up for anything. Up to this point, there have never been any concerns brought to her attention. When you connect the dots, the idea is that (a few Carroll volleyball parents') children are not getting enough playing time."

Carroll High School volleyball Booster Club president Terrie Steen, the mother of Carroll junior volleyball player Melanie Steen,said it will be unfortunate if Elizondo leaves in May because it could hurt the team.

"My daughter wants (coach Elizondo) to come back and I want what my daughter wants and what's best for the team," Terrie Steen said. "If this particular team is going to be successful with Elizondo at this point, then that's what we need to do because this team's on a roll -- just let them play volleyball."

Carroll junior volleyball player Erica Humbach said Elizondo told her and the other Tigers volleyball players that she wants to come back and coach the team next season.

Humbach said it won't sit well with many of Carroll's volleyball players if Elizondo is replaced next season.

"Bringing someone in (to coach the team) that is completely new and who doesn't know us at all -- that will not end up well for us," Humbach said. "We're fighting for coach Elizondo and she knows it. We love her and she loves us."

In six seasons at Carroll, Elizondo has led the Tigers to five straight district titles in Class 5A, including six straight playoff appearances. She's posted a 133-53 coaching record at Carroll and has a 187-115 career volleyball coaching record in 13 seasons.

Contact Stuart Duncan at 886-3792 or duncans@caller.com

Replies:

* Re(1): Carroll principal: Elizondo not reassigned....... YET - By d1 May 9, 2008 at 02:43:52 AM
o :no final decision has been reached by this school district concerning the reassignment - By d1 May 9, 2008 at 03:29:53 AM
Posted by dannoynted1 at 1:33 AM 0 comments Links to this post
Labels: ACLU, Bill of Rights, CCISD, educate, Juvenile Justice, legally trained, School to prison pipeline, SCOTUS, Teach, United States Constitution
Wednesday, May 7, 2008
CCISD Superintendent Scott Elliff told 6 News that he was, "not aware that she's being transferred."????? Yes he is , Bernie told him all about it.

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."

Carroll High School Girls Volleyball Coach Being Forced Out?
More local links from KRISTV.com

Houston
San Antonio

Austin
Select Another City
KRIS-TV
updated 2 minutes ago

CORPUS CHRISTI-Carroll High School Volleyball Coach Doris Elizondo told KRIS 6 News she is being forced out as coach, a move she said she plans to fight.

The fight has just begun, and a local civil rights group is rallying behind Elizondo. A member of the group, who also happens to be a member of the American Federation of Teachers, said Elizondo is being unfairly targeted.

Elizondo has been the head girls volleyball coach at Carroll High School for six years, winning District 5A titles each of the past five years.
Story continues below ↓advertisement

AFT staff member Susie Luna Saldana told 6 News, on behalf of Elizondo, "She's been receiving threats that she is going to be moved. We feel very strongly that they have already made that decision to move her." She also claimed three or four parents at Carroll High School want the coach gone.

"We feel it's being done because of some very influential parents that want to see their kids play and not all children play fairly," added Saldana.

Saldana would not say where Elizondo would be moved to or who would take her spot.

In a phone interview, Elizondo told 6 News, "I haven't done anything wrong," adding, "I will fight this all the way."

However, everyone we spoke with at CCISD denied the accusations.

Carroll High School Athletic Coordinator Terry Morris said, "I can't comment on personnel issues. The rumors you are hearing, it's not accurate."

CCISD Superintendent Scott Elliff told 6 News that he was, "not aware that she's being transferred."

A District spokesperson said strongly, "She is not being reassigned, transferred or anything. It's false information."

When asked if Elizondo is being investigated for misconduct, the district spokesperson replied, "We cannot talk about personnel issues."

Saldana also would not say what accusations, if any, Elizondo is facing.

"We can tell you this. None of them has she been written up on and none of them have been brought to her attention prior to her wanting to be moved. These parents are wanting to move her," explained Saldana.

She said a news conference will be held in front of Carroll High School on Wednesday afternoon. Saldana claimed evidence backing their claims will be presented at that news conference, referring to an audio tape where Elizondo was told she was on her way out.

Online Reporter: Thomas Piland
Posted by dannoynted1 at 1:57 PM 0 comments Links to this post

Re(1): Carroll principal: Elizondo not reassigned....... YET
Posted on May 9, 2008 at 02:43:52 AM by d1

CCCT: "Carroll High School principal Bobby Templeton said Wednesday that "as of today, no final decision has been reached by this school district concerning the reassignment of Coach Elizondo.""

D1: as of today this former Cullen M.S. School principal is true to his current assignment as a Janus face double talking drone.

Too bad he is ignorant of the fact that he is just a tool for others political gain.

Some people learn the hard way.

Why did he leave the position of "superintendent of Flour Bluff I.S.D."????

HMMMMMMMMMMMMMMMMMMMM............
http://www.caller.com/news/2008/may/08/carroll-principal-elizondo-not-reassigned/

Not yet, but it is coming....

:no final decision has been reached by this school district concerning the reassignment
Posted on May 9, 2008 at 03:29:53 AM by d1

Looks like the The Cervantes group can't handle this..... "as of today, no final decision has been reached by this school district concerning the reassignment of Coach Elizondo.""

Since when does "Carroll High School principal Bobby Templeton" speak for, the public relations or the press secretary for this " this school district"???????????????

Talk about liars~ this is not what Eliff and Templeton were saying yesterday.

Now the liars call it ~The reassignments by this school disrtrict......

Labels: ACLU, Bill of Rights, CCISD, educate, Juvenile Justice, legally trained, School to prison pipeline, Teach

This Court has found an issue that needs to be addressed before we can determine whether or not to proceed with Applicant's.......housekeeping

2008-03-28T01:12:00.001-07:00

Educating Youth About Their Right to a Lawyer

In April 2007, the national ACLU joined the ACLU of Ohio, the Children’s Law Center and the Office of the Ohio Public Defender to launch a statewide campaign to inform Ohio young people of their rights. Based on analysis of juvenile court cases, the coalition estimates that in several Ohio counties, as many as 90 percent of children charged with criminal wrongdoing are not represented by counsel. Statewide, an estimated two-thirds of juveniles facing unruly or delinquency complaints proceed without an attorney.

A growing number of cases show that young people who are not represented by an attorney are more likely to enter guilty pleas even when they may have viable defenses or may be innocent. Currently, Ohio law allows juveniles to waive their right to legal counsel before they have even met with an attorney to discuss the legal implications of their situation.

Many children have barriers to understanding the serious charges that they may face. Almost 75 percent of incarcerated youth in Ohio need mental health services, and nearly half of those incarcerated at Ohio Department of Youth Services facilities need special educational instruction.

As part of the campaign, the groups are distributing thousands of Know Your Rights cards to school districts and courts across the state. The card is available here in English, and here in Spanish.
In Re: Spears — Working in the Courts to Protect Children's Right to Counsel

In 2006, the Ohio coalition groups filed a petition calling for the Ohio Supreme Court to adopt a rule making it much more difficult for children charged with a crime to waive counsel. The petition specifically requested that the court require every child to consult with an attorney prior to waiving the right to counsel. The state’s high court agreed to consider this issue in the case of Corey Spears, who was 13 years old when he appeared in juvenile court. Corey waived his right to an attorney but the court failed to ensure that he understood what rights he was giving up.

The In Re: Spears case was heard by the Supreme Court of Ohio in April of 2007 and decided in September of that year. The Court held that Spears's waiver of counsel was invalid because his rights had not been adequately explained to him. The Court affirmed that the appointment of counsel is mandatory in all cases where a juvenile does not have a parent or guardian available for advice, and allows juveniles to waive counsel only if the decision is made voluntarily, knowingly and intelligently. The Court held that in determining whether a juvenile's waiver of counsel has met these standards, judges must engage the juvenile in a meaningful dialogue and consider the juvenile's unique circumstances, including age, intelligence, education level, life experience, and nature of complexity of the charges against the juvenile.
Read more about In Re Spears >>

FIGHTING FOR THE RIGHTS OF INCARCERATED MINORS
The ACLU filed a class action lawsuit in 2004 on behalf of the nearly 2000 juveniles who are incarcerated in juvenile correctional facilities in Ohio. The complaint alleged that the State failed to provide incarcerated juveniles in Ohio with constitutionally adequate access to the courts.

In March of 2007, the court approved a settlement in this case, which guarantees that:
(1) all juveniles will be notified during their orientation about their right of access to the courts and how to request legal assistance;
(2) all juveniles who request such assistance will be assigned an attorney; and
(3) all juveniles who have non-frivolous cases will receive assistance in filing a civil rights lawsuit.

Under the settlement agreement, Ohio must send detailed compliance reports each month to the ACLU. The ACLU filed a contempt action in this case in the fall of 2007 for the State's ongoing failure to provide adequate access to the courts, in violation of the consent decree.

Read more about J.P. v. Taft >>

Beyond Ohio: The Gault @ 40 Campaign

The ACLU is working with the Gault @ 40 Campaign to devise strategies to improve children’s access to competent counsel. The Gault @ 40 Campaign will conduct a number of activities and events in 2007 — know your rights nights, symposia, new materials and publications, movie screenings, and more. Information on the campaign is online at www.gaultat40.info.

This Court has found an issue that needs to be addressed before we can determine whether or not to proceed with Applicant's.......housekeeping

2008-03-28T01:12:00.000-07:00

we must first determine whether the Sixth Amendment’s right to assistance of counsel applies to juveniles.

2008-03-26T17:59:00.000-07:00

This is the html version of the file http://www.cca.courts.state.tx.us/Opinions/74497a.wpd.
G o o g l e automatically generates html versions of documents as we crawl the web.
To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:oT8na2sFmTYJ:www.cca.courts.state.tx.us/Opinions/74497a.wpd+texas+juvenile+denied+counsel&hl=en&ct=clnk&cd=5&gl=us&client=firefox-a

Google is neither affiliated with the authors of this page nor responsible for its content.
These search terms have been highlighted: texas juvenile denied counsel

2

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 744-97

RAYMOND HIDALGO, JR., APPELLANT

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY

Holland, J., delivered the opinion of the Court in which Mansfield, Price, Womack, and Keasler, J.J., joined. Keller, J., filed a concurring opinion, in which McCormick, P.J., and Johnson, J., joined. Meyers, J., dissented without opinion.

O P I N I O N

Appellant Raymond Hidalgo, Jr., a juvenile, challenges his criminal conviction due to error in his transfer from juvenile court. He contends he was denied his right to the assistance of counsel because his appointed attorney was not notified of the psychological examination, conducted pursuant to § 54.02(d) of the Juvenile Justice Code, until after the exam occurred.1 The Fourth Court of Appeals rejected this contention holding, inter alia, no Sixth Amendment violation arose from the failure to give his attorney prior notice of the exam. Hidalgo v. State, 945 S.W.2d 313 (Tex. App.-- San Antonio 1997). We granted appellant’s petition for discretionary review to address whether his attorney was entitled to prior notice of the exam.

I.

On December 25, 1997, while at a restaurant, appellant and a group of companions allegedly tried to initiate a fight with the victim, Charisma Perez, the victim’s boyfriend, Chris Garcia, and her friend, John Bernal. A security guard intervened and made them leave. Unaware appellant and his companions were following them, Perez, Garcia, and Bernal drove to Bernal’s apartment and parked. As Perez exited the car, she noticed a car coming towards her. As the car approached, Perez saw appellant leaning out of a car and pointing a hand gun towards her. Appellant fired the gun three or four times in Perez and Garcia’s direction. Perez was shot in her left arm and abdomen. Garcia was not hit.

At the time of his arrest, appellant was fifteen years old. He was initially charged as a juvenile.2 The State petitioned the juvenile court to transfer appellant to criminal court for prosecution as an adult.3 The State also filed a motion requesting a psychological exam, as mandated by § 54.02(d).4 The juvenile court granted the State’s motion for a psychological exam and on March 7th and 8th appellant was examined by a psychologist. The psychologist’s report was submitted to the juvenile court.5

The report from appellant’s psychological exam concerned his intellectual development, psychological maturity, personality dynamics, and mental abilities. The report listed appellant’s overall level of functioning, as measured on the Wechsler Scale, in the low-average (80-89) range of intelligence. The report indicated he was most proficient in logical reasoning, and least proficient in social judgment. The report also contained summaries of the psychologist’s conversations with appellant concerning performance at school; participation in special education programs; relationships with teachers, family, and friends; medical history; substance abuse; sexual promiscuity; and how he viewed his past and present emotional state. The report concluded, among other things, appellant had a "conduct disorder" and "dsythymic disorder."6

On March 28, 1995, the juvenile court waived jurisdiction and ordered appellant to be transferred to criminal court for prosecution as an adult. A jury found appellant guilty of attempted capital murder and sentenced him to fifty years imprisonment.

II.

On appeal, appellant relied on Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981) and Satterwhite v. State, 486 U.S. 249, 108 S. Ct. 1792, 100 L. Ed. 2d 284 (1988). Appellant claimed the failure to notify his attorney prior to the psychological examination violated his Sixth Amendment right to assistance of counsel. Specifically, he claimed that without advance notice his attorney could not advise him of the nature and purpose of the examination.

The Fourth Court of Appeals rejected appellant’s contention, distinguishing Estelle and Satterwhite on two grounds. First, Estelle and Satterwhite involved adjudicatory criminal proceedings, rather than non-adjudicatory juvenile transfer proceedings. Hidalgo, 945 S.W.2d at 319. Second, the rights at stake in Estelle and Satterwhite were "clearly of a greater magnitude" because the exams in those cases were used to determine eligibility for the death penalty.

The court of appeals recognized this Court has not addressed this issue. Relying on Lagrone v. State, 942 S.W.2d 602, 612 (Tex. Crim. App. 1997) the court of appeals concluded the State’s failure to give notice did not violate appellant’s rights because this Court held a juvenile does not have a Sixth Amendment right to have counsel present during the psychological exam. Hidalgo, 945 S.W.2d at 319-20. The court reasoned that "if the Sixth Amendment is not violated when a juvenile’s attorney is excluded from the examination itself, it stands to reason that no constitutional violation occurs when an attorney is not notified of the examination until after it has taken place." Id. at 320. The court rejected appellant’s contention that he needed to consult with counsel to decide whether to submit to the exam on the basis that the exam is mandatory under section 54.02(d) of the Texas Family Code. The Court also noted that if appellant had such a right it was waived because the psychologist’s report noted appellant was informed of his rights and the purpose of the exam, and he indicated he understood and was willing to proceed.

Appellant urges this Court to reverse the court of appeals’ holding that lack of prior notice did not violate appellant’s Sixth Amendment right to assistance of counsel.

III.

Before this Court can address whether a juvenile’s attorney is constitutionally entitled to prior notice of a court-ordered psychological exam, we must first determine whether the Sixth Amendment’s right to assistance of counsel applies to juveniles. Though it has been long settled that the Bill of Rights applies to juvenile proceedings, to what extent remains undetermined, and this precise issue has not been decided by this Court or the U.S. Supreme Court.7 Initially, procedural safeguards provided by the Constitution and the Bill of Rights were inapplicable to juvenile proceedings. Lanes, 767 S.W.2d at 792-94.8 This was due to the philosophy underlying the creation of the juvenile court system which viewed juveniles as needing the state’s care and guidance. State legislatures created juvenile courts for treatment and rehabilitation of child offenders. Id. at 792-93. The rehabilitative approach examined problems affecting individual offenders and structured individual rehabilitation programs to resolving "the wayward juvenile’s family, social and personal problems and to prepare [the juvenile] to be [a] healthy, productive and law abiding adult[]." Jeffrey Fagan & Elizabeth P. Deschene, Determinants of Judicial Waiver Decisions for Violent Juvenile Offenders, 81 Crim. L & Criminology 314, 318 (1990). The focus on individual treatment set juvenile courts apart from regular criminal courts. Lanes.767 S.W.2d at 792-93. The juvenile court focused on the best interests of the child through treatment, and the adult criminal court directed its efforts at punishing the offender. One consequence of this distinction was that juveniles were denied many fundamental constitutional and procedural rights:

Juvenile proceedings were defined as civil rather than criminal, rendering inapplicable the rules of criminal evidence and their appropriate safeguards against admittance of prejudicial and inflammatory evidence. ... Thus, the juvenile system's protective rejection of the adult system came at the cost of the procedural and constitutional protections attendant thereto; a dubious tradeoff--to say the least--and, as was recognized early on, the results have been less than satisfactory.

Lanes, 767 S.W.2d at 792-93 [citations omitted].

The Supreme Court recognized the procedural injustice of the juvenile system in Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). In Kent, the Supreme Court determined that children should not be denied procedural rights given adults merely because juvenile proceedings are characterized as civil. Kent, 383 U.S. at 560, 86 S. Ct. at 1063. Identifying the transfer determination as "critically important," the Court held a state juvenile transfer process must operate in accordance with traditional notions of fundamental fairness. Id. The process must include a hearing, effective assistance of counsel, and counsel’s access to the child’s social file.

The Supreme Court continued defining fundamental constitutional protections applicable to the juvenile justice system in In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967). The Court held the Fourteenth Amendment’s Due Process Clause applied to juvenile delinquency proceedings entitling children to notice of charges, defense counsel, the privilege against self-incrimination, confrontation of and cross examination of witnesses. Gault, 387 U.S. at 49, 87 S. Ct. at 1455. In subsequent cases, the Supreme Court continued its case by case approach for determining the applicability of constitutional protections to juveniles. Rather than grant juveniles the full array of protections under the Constitutions and Bill of Rights, the Court has chosen to examine each protection claimed and the effect it would have on the unique framework of the juvenile justice system.

In Lanes v. State, 767 S.W.2d 789 (Tex. Crim. App. 1989), this Court was called on to determine whether the probable cause requirement of the Fourth Amendment of the U.S. Constitution and Article I § 9 of the Texas Constitution applies to juvenile arrests. Relying on the Supreme Court’s eight foundation opinions on juvenile rights for guidance,9 this Court distilled a test for delineating which constitutional protections apply to juveniles in juvenile court proceedings. This Court observed the Supreme Court, in evaluating whether and to what degree each constitutional protection extends to juvenile proceedings, utilized an analysis comparing the purposes and goals of the juvenile system to the particular right asserted. This Court then examined the purposes of the Texas juvenile system and the probable cause requirement, concluding the two did not conflict or undermine one another.

In adopting this balancing test this Court also announced a desire to "dispel the antiquated and unrealistic resistance to procedural safeguards" in the juvenile court system. We observed that due to the scarcity of treatment programs, professional training, and financial resources the juvenile system had become more punitive than rehabilitative. Id. at 800. Rather than ignore these realities we chose to balance the "aspirations of the juvenile court and the grim realities of the system." Id.

Recent amendments to the Juvenile Justice Code change juvenile adjudication and punishment, causing the "grim realities" to be even more salient. As this Court recently recognized in Blake v. State, 971 S.W.2d 451, 460 (Tex. Crim. App. 1998), juveniles now face consequences similar to those faced by adults. Most apparent is the fact juveniles may now be subject to a forty-year term of imprisonment. Tex. Fam. Code § 54.04(d)(3)(A) (i)-(iii). Blake recognized some of the legislative changes making the juvenile system more punitive than rehabilitative:

[T]he legislature expanded the definitions of delinquent conduct, expanded the list of felony offenses that authorize criminal proceedings for juveniles over the age of fourteen, authorized confinement in the Texas Department of Criminal Justice for various grades of felony and habitual felony conduct, categorized certain adjudications as ‘final felony convictions’ that can be used as enhancements for repeat offenders, removed provisions forbidding the maintenance of centralized photograph and fingerprint records, repealed laws about sealing and destruction of juvenile records, and mandated the use of the Texas Rules of Criminal Evidence and the evidentiary provisions of Chapter 38 of the Code of Criminal Procedure instead of their civil counterparts for judicial proceedings involving juveniles.

Blake, 971 S.W.2d at n.28. These recent legislative changes continue to erode the original justifications for denying juveniles the same procedural protections as adults.10 Therefore, consistent with our holding in Lanes, we will examine the juvenile proceeding at issue to determine whether it is the type of proceeding the Sixth Amendment was designed to protect. If so, we must then examine the impact or degree of impairment the constitutional protection will have on our juvenile justice system.

IV.

The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. Designed to remedy any imbalance in our adversary system, the Sixth Amendment promises that an accused is entitled to defense counsel in all criminal prosecutions. State v. Frye, 897 S.W.2d 324, 327 (Tex. Crim. App. 1995). Under the Federal Constitution, the Sixth Amendment right to counsel attaches upon the commencement of adversarial proceedings. Kirby v. Illinois, 406 U.S. 682, 688-90, 92 S. Ct. 1877, 1881-83, 32 L. Ed. 2d 411 (1972). The right extends to all "critical stages" of the criminal proceeding, not just the actual trial. The Supreme Court, however, has not established a "bright line" rule to mark when adversarial proceedings begin. United States v. Gouveia, 467 U.S. 180, 187-89, 104 S. Ct. 2292, 2297-98, 81 L. Ed. 2d 146 (1984). Instead, the Supreme Court has left this determination to state courts.

This Court has also refused to declare a "bright line rule." See State v. Frye, 897 S.W.2d at 327-28; Green v. State, 872 S.W.2d 717, 720 (Tex. Crim. App. 1994).11 Instead, this Court has recognized that determining whether a particular event is a critical stage - thus triggering a Sixth Amendment right to counsel - depends on whether the accused requires aid in coping with legal problems or assistance in meeting his adversary. Frye, supra; Green, 872 S.W.2d at 720-22.

Appellant relies on Estelle and Satterwhite for his contention that the failure to notify his attorney in advance of the examination violated his Sixth Amendment right to assistance of counsel. In Estelle, a capital murder prosecution, the trial court ordered a pre-trial psychiatric evaluation of the defendant to determine whether he was competent to stand trial. Estelle, 451 U.S. at 456-57, 108 S. Ct. at 1870. The defendant was determined competent and subsequently convicted of first degree murder. On appeal, the defendant complained his Fifth and Sixth Amendment rights were violated at the sentencing phase of the trial when the court permitted the State to present testimony of the psychiatrist who performed the evaluation. Affirming the order vacating the death sentence, the Supreme Court agreed. Estelle, 451 U.S. at 468-71, 108 S. Ct. at 1875-77.

The Court held that the psychological exam did not violate the defendant’s Fifth and Sixth Amendment rights when used strictly to determine competency, but did violate those rights when used against him at the punishment stage. Id. The Court explained that by using the evaluation to prove the defendant’s future dangerousness, the State had moved beyond the neutral purpose for which the exam was intended. Estelle, 451 U.S. at 464, 108 S. Ct. at 1874 The Court concluded that once the results of the exam were used for a "much broader objective that was plainly adverse" to the defendant the evaluation amounted to a custodial interrogation entitling the defendant to Fifth Amendment protections. Id. The Court also determined the defendant’s Sixth Amendment right to counsel was violated because the State’s later use of the examination at the sentencing proceeding caused the examination "to be a critical stage of the aggregate proceeding against the respondent." Estelle, 451 U.S. at 470, 108 S. Ct. at 1877.

Unlike Estelle, appellant is not complaining of the State’s use of the psychologist’s report against him at his criminal prosecution. Appellant is challenging the use of the report against him at the juvenile transfer hearing.12 A similar argument was made in United States v. A.R., 38 F.3d 699 (3rd Cir. 1994). The defendant, a juvenile, challenged the district court’s transfer order on the basis that his constitutional rights were violated. Id. at 700. Relying on Estelle, the defendant maintained the psychiatric examinations conducted for use in his transfer hearing violated his rights under the Fifth and Sixth Amendment. At the defendant’s transfer hearing, the government introduced several psychiatric and psychological reports. The evaluations, on which the reports were based, were conducted in preparation for a similar transfer motion then pending in state court regarding unrelated state charges. Id. at 700-701. The reports were admitted over the defendant’s objection that they violated his Fifth and Sixth Amendment rights because he was not Mirandized and his appointed counsel was not notified of the examinations.

On appeal to the United States Third Court of Appeals, the court determined the defendant’s reliance on Estelle was misplaced. United States v. A.R., 38 F.3d at 704. Estelle did not hold that a psychological exam is the sort of event to which the Sixth Amendment right to assistance of counsel attaches. Rather, Estelle held that if evidence acquired from the exam is used against the defendant during a criminal prosecution, the exam exceeds the neutral purpose for which it was intended and should be viewed as a critical stage. Id. at 704. As such, the Third Court of Appeals concluded that because evidence acquired from the exam was not used against the defendant in his criminal prosecution, but only in the juvenile transfer hearing, the defendant was not entitled to relief under Estelle. Id. at 705.

Rather than end its inquiry, the Third Court of Appeals went on to examine the applicability of the Fifth and Sixth Amendment to juvenile transfer proceedings. For guidance, the court looked to the reasoning in Estelle and conclude that, like a competency hearing, the proceeding is intended to serve an important neutral purpose. Id. The court emphasized that psychiatric and psychological reports obtained for purposes of transfer hearing, do not bear on the question of guilt or innocence; but only the manner in which the state proceeds against the accused. Citing the factors13 used to measure whether a given proceeding is a critical stage triggering the right to assistance of counsel, the Third Court of Appeals observed its reading of Estelle was consistent with established Sixth Amendment jurisprudence. The court of appeals also observed that its holding, in the language of Estelle, did not "derogate from the accused’s right to a fair trial." United States v. A.R., 38 F.3d at 705 (citing Estelle, 451 U.S. at 470).

V.

After exploring the purpose of the transfer mechanism, the judicial transfer process,14 and the trial court’s use of psychiatric and psychological reports, we conclude the Texas juvenile transfer proceeding serves a neutral purpose. State legislatures originally devised the process as a means of removing serious or persistent juvenile offenders generally not amenable to rehabilitation to the adult criminal system. The presence of such juveniles in the juvenile system was seen as a threat to the fundamental structure of the juvenile system and the less criminally sophisticated.15 Transfer was intended to be used only in exceptional cases. The philosophy was that, whenever possible, children "should be protected and rehabilitated rather than subjected to the harshness of the criminal system" because "children, all children are worth redeeming." President’s Commission on Law Enforcement and Administration of Justice (1967).

The Supreme Court acknowledged the critical importance of transfer in Kent. To limit the juvenile court’s discretion in making the transfer determination, the Supreme Court set out a series of factors for juvenile courts to consider. The Kent factors were classified according to the potential danger to the public, contrasted with the juvenile offender’s amenability to treatment. These factors are incorporated into Texas juvenile waiver law. See Tex. Fam. Code § 54.02(f).16 To assist the court in assessing these factors, the law requires a psychological examination by a doctor with specialized training in adolescent psychology and forensic assessment. Tex. Fam. Code § 54.02(d). The exam provides insight on the juvenile’s sophistication, maturity, potential for rehabilitation, decision-making ability, metacognitive skills, psychological development, and other sociological and cultural factors.

Appellant contends the tremendous consequences transfer had on him as a juvenile offender required that his attorney be given prior notice of the exam so that he could advise appellant as to the nature and purpose of the exam, as well as the consequences of transfer. Appellant rejects the court of appeals’ reliance on Lagrone v. State, contending this Court did not hold a juvenile is not entitled to confer with counsel before the examination.17 He also maintains the court of appeals erred in downplaying the significance of transfer because though transfer is not a life and death matter, the consequences may be similarly devastating. We agree. We join at least one other state court which found transfer to criminal district court for adult prosecution is "the single most serious act the juvenile court can perform . . . because once waiver of jurisdiction occurs, the child loses all protective and rehabilitative possibilities available." State v. R.G.D., 527 A.2d 834, 835 (N.J. 1987). Once transferred, a child will be subject to the retributive punishment of the criminal justice system instead of the rehabilitative goal of the juvenile justice system. Should the State’s transfer petition be granted, the juvenile will be subject to more stringent punishment.18 Additionally, loss of juvenile status results in "the personal degradation and restriction of legitimate opportunity that often follow a criminal conviction."19 Despite the tremendous consequences, however, we cannot say the psychological exam itself constitutes a critical stage triggering Sixth Amendment protection.

As previously discussed, whether a particular event is a critical stage depends on whether the accused requires aid in coping with legal problems or assistance in meeting his adversary. See State v. Frye, 897 S.W.2d at 327-28; Green, 872 S.W.2d at 720-22. In the psychological exam itself, the abuses the Sixth Amendment was devised to protect against are not present. In the transfer hearing, where determination is actually made, a juvenile is entitled to the assistance of counsel. Tex. Fam. Code § 51.10(a)(2); Kent v. United States, supra. Also in the transfer hearing, the juvenile has the opportunity to challenge the methods employed in the exam and the conclusions reached in the report.20 As for appellant’s contention that juveniles should be advised as to the nature and purpose of the exam, we agree. However, we cannot say the exam itself is the type of legal confrontation that can be understood only after consulting with counsel. As in the present case, the doctor administering the evaluation typically apprizes the juvenile of his or her rights with regard to psychological testing and the purpose of the examination. Furthermore, because the exam is mandated by statute, counsel is aware of the need to advise his client when the State files the transfer petition. Tex. Fam. Code § 54.02(d).

Our holding today protects the individualistic and rehabilitative philosophy of the juvenile system because it preserves the judicial transfer process which, unlike prosecutorial or legislative transfer, examines and considers those issues specific to the individual juvenile.21 Judicial transfer permits the interests of both society and the juvenile to weigh against each other in a neutral setting. Use of statements made in the exam the juvenile’s criminal prosecution disregards the rationale for the exam and effectively transforms the exam into a criminal investigation. Also, if juveniles can not be assured that their statements can not be used against them in future criminal prosecutions, they will not want to participate in the exam. As such, the juvenile court’s ability to obtain all available information and to gather reliable evidence would be frustrated.

VI.

Though this Court recognizes today that counsel serves no functional purpose in the psychological exam conducted for the neutral purpose of determining whether a juvenile should be transferred to criminal court, we are not blind to the potential for injustice. In light of the criteria a juvenile court is required to consider in making its determination on transfer, we recognize that it is all but inevitable, that in the course of any psychiatric or psychological examination, the doctor will inquire into the facts of the alleged offense and the juveniles’s prior criminal experiences. See Tex. Fam. Code §54.02(d) & (f). Such a query is permissible so long as it is not intended to force juveniles to supply incriminating evidence or investigative leads against themselves. Failure to limit the query to its permissible purpose could lead to a violation of a juvenile’s right against self-incrimination or right to counsel.

Though the psychological report in this case contained information concerning appellant’s previous delinquency and criminal conduct, as well as a summary of the doctor’s conversation with appellant regarding the offense alleged and his prior delinquent conduct, we cannot say the exam exceeded its intended purpose.22 Because appellant was forced to supply neither incriminating evidence nor investigative leads, we do not agree with appellant’s contention that the exam amounted to a custodial interrogation entitling him to Fifth and Sixth Amendment protections. Furthermore, because the State’s use of the information elicited from the exam was limited to the transfer determination, we find no constitutional violations consistent with Estelle or Satterwhite.

The decision of the court of appeals and the judgment of the trial court are affirmed.

HOLLAND, J.

Date Delivered: January 13, 1999

Publish

1

The Juvenile Justice Code is Titles 3 and 4 of the Texas Family Code. All statutory references, unless otherwise indicated, are to the current Texas Family Code.

2

Pursuant to § 51.02(2), juvenile court jurisdiction attaches to any child age ten or older and under eighteen who engages in "delinquent conduct or conduct indicating a need for supervision" as defined by the code. Some law violations, however, are under the exclusive jurisdiction of the criminal court even though the person was under eighteen at the time the alleged offense. These offenses include perjury, traffic violations, offenses punishable by fine only, and certain alcohol violations. Tex. Fam. Code § 51.03.

3

The transfer of a juvenile to criminal court is sometimes referred to as certification to criminal court or waiver of juvenile court jurisdiction. All of these terms refer to the process by which the court relinquishes its jurisdiction over a child and transfers the case to a court of criminal jurisdiction for prosecution as an adult. S. Davis, Rights of Juveniles: The Juvenile Justice System § 4.1, 4-1 (1990). The Texas Family Code refers to juvenile transfer as "waiver of jurisdiction and discretionary transfer to criminal court." Tex. Fam. Code § 54.02. For purposes of this opinion we will refer to this process as "transfer."

A juvenile court’s discretionary power to transfer a juvenile can be exercised only where the State files a petition or motion requesting waiver and transfer. Tex. Fam. Code § 53.04. When the State requests a transfer, the juvenile court is required to "conduct a hearing without a jury to consider transfer of the child for criminal proceedings." Tex. Fam. Code § 54.02. The question presented to the juvenile court is whether there is "probable cause to believe that the child before the court committed the offense alleged and that because of the seriousness of the offense or the background of the child the welfare of the community requires criminal prosecution." Tex. Fam. Code § 54.02(a)(3). In making this determination the juvenile court is required to consider: whether the alleged offense was against a person or property, with offenses against the person weighing more in favor of transfer; whether the alleged offense was committed in an aggressive and premeditated manner; whether there is evidence on which a grand jury may be expected to return an indictment; the sophistication and maturity of the child; the record and previous history of the child; and the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use of procedures, services, and facilities available to the juvenile court. Tex. Fam. Code § 54.02(f). For offenses committed on or after January 1, 1996, the legislature no longer requires a juvenile court to consider whether the alleged offense was committed in an aggressive and premeditated manner, or whether there is evidence on which a grand jury may be expected to return an indictment. Tex. Fam. Code § 54.02(f).

4

Section 54.02(d) requires that prior to a hearing on the State’s petition for transfer of a juvenile, the juvenile court "shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances and the circumstances of the alleged offense." Tex. Fam. Code § 54.02(d). This report is intended for use in the transfer proceeding.

5

Section 54.02(e) authorizes the juvenile court to consider the report mandated by § 54.02(d) in making a determination on transfer. A juvenile court may also consider at the transfer hearing written reports from probation officers, professional court employees, or professional consultants. The court may also hear the testimony of witnesses. Tex. Fam. Code § 54.02(e).

6

The report does not reflect that appellant’s attorney was notified as to when the exam was to occur. The record indicates that on March 6, 1995, the district attorney’s office sent appellant’s attorney, a copy of the motion and order for the psychological exam by certified mail, along with the State’s first amended petition for transfer. Noticeably absent from the record, however, is the return receipt documenting counsel’s receipt of these documents. At a pretrial hearing, appellant’s attorney testified he did not receive notice of the exam until the district attorney’s office sent him a facsimile on March 23, 1995. In light of these facts, and the State’s position that providing appellant’s attorney with advance notice of the exam is neither constitutional nor statutorily required, we will assume no notice was given.

7

See Lanes v. State, 767 S.W.2d 789, 791 (Tex. Crim. App. 1989). The Supreme Court in In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967) determined that "[n]either the Fourteenth Amendment nor the Bill of Rights is for adults alone." See also Haley v. Ohio, 332 U.S. 596, 601, 68 S. Ct. 302, 304, 92 L. Ed. 224 (1948) and Gallegos v. Colorado, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962)).

8

In 1899, the Illinois Legislature enacted the first juvenile court act providing a system devoted entirely to the adjudication of juvenile offenders. See Act of April 21, 1899, Ill. Laws 131 §§ 1-21. By 1912, there were juvenile court systems in at least twenty-two states. All but two states had juvenile courts systems by 1925. Charles W. Thomas & Shay Bilchik, Prosecuting Juveniles in Criminal Courts: A Legal and Empirical Analysis, 76 Crim. L. & Criminology 439, 451 (1985). Texas established a separate court system for juveniles in 1907, with the adoption of the Juvenile Court Act. Bill Anderson & Ronny Gurley, The Juvenile Offender & Texas Law: A Handbook (1969). Texas’ first juvenile code was enacted in 1943 and included a provision for the prosecution of juvenile offenders in adult criminal courts. Act of 1943, 48th Leg., R.S. ch. 204, art. 2338-1 (Vernon 1971).

9

The eight Supreme Court opinions: (1) Haley v. Ohio, 332 U.S. 596, 601, 68 S. Ct. 302, 304, 92 L. Ed. 224 (1948) entitling juveniles to protections against coerced confessions. See Tex. Fam. Code § 51.09.; (2) Kent v. U.S., 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966) entitling juveniles to procedural protections in transfer hearings. See Tex. Fam. Code § 54.02.; (3) In re Gault, 387 U.S. 1, 49, 87 S. Ct. 1428, 1455, 18 L. Ed. 2d 527 (1967) entitling juveniles to rights of notice, counsel, confrontation, cross-examination and protection against self-incrimination. See Tex. Fam. Code § 51.10, § 53.01, § 5 3.04, § 53.06, and § 54.03.; (4) In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) entitling juveniles to proof beyond a reasonable doubt in delinquency determination. See Tex. Fam. Code. § 54.06.; (5) McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971) refusing juveniles the right to jury in delinquency determination; But see, Tex. Fam. Code § 54.03.; (6) Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975) entitling juveniles to double jeopardy protections. See Tex. Fam. Code § 54.02(a)(2) and (j)(3)).; (7) Schall v. Martin, 467 U.S. 253, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984) recognizing pre-trial detention of juveniles valid, (8) New Jersey v. T.L.O., 469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985) entitling juveniles to a diminished Fourth Amendment standard in school searches. See Lanes, 767 S.W.2d at 794.

10

It is evident that this legislative trend towards punishment will continue in light of the public’s perception of, and anxiety about, an increase in violent juvenile crime. Violent juvenile crime, however, has continued to decline. FBI’s Annual Report, Crime in the United States 1996 & 1997. If this legislative trend continues and juveniles are subject to the similar punishment in juvenile court as in criminal court, the philosophy underlying the need for two separate court systems disappears.

11

Examples of actions which we have held to mark the initiation of formal adversarial proceedings include: filing an indictment, DeBlanc v. State, 799 S.W.2d 701 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259, 111 S. Ct. 2912, 115 L. Ed. 2d 1075 (1991); filing an information and complaint, McCambridge v. State, 712 S.W.2d 499 (Tex. Crim. App. 1986); arraignment, Michigan v. Jackson, 475 U.S. 625, 629, 106 S. Ct. 1404, 1407, 89 L. Ed. 2d 631 (1986); and an Article 15.17 "warning hearing," where an arrest warrant was present, Nehman v. State, 721 S.W.2d 319 (Tex. Crim. App. 1986). The right to assistance of counsel under the Sixth Amendment is not triggered by an arrest alone. Green, 872 S.W.2d at 720; Garcia v. State, 626 S.W.2d 46, 53 (Tex. Crim. App.1981); Kirby, 406 U.S. at 688-91, 92 S. Ct. at 1881-83, 32 L. Ed. 2d at 417-18; c.f. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

12

The record reflects that it was appellant’s counsel who admitted the report into evidence during the punishment phase of appellant’s criminal prosecution.

13

The court relied on the three factors extracted by the Ninth Circuit in Menefield v. Borg, 881 F.2d 696, 698-99 (9th Cir. 1989)):

First, if failure to pursue strategies or remedies results in a loss of significant rights, the Sixth Amendment protections attach. Second, where skilled counsel would be useful in helping the accused understand the legal confrontation ... a critical stage exists. Third, the right to counsel applies if the proceeding tests the merits of the accused’s case.

United States v. A.R., 38 F.3d at 704 (citing Menefield v. Borg, 881 F.2d at 698-99.)

14

Essentially, states have devised three means for transferring juveniles to criminal district court for adult prosecution: judicial transfer, prosecutorial transfer, and legislative transfer. The present case involves judicial transfer, a mechanism by which a juvenile court judge may exercise independent discretion in determining whether to transfer a particular juvenile. Under the prosecutorial transfer mechanism prosecutors have unilateral authority to determine the adjudicatory forum. Unlike judicial and prosecutorial transfer, legislative transfer is not discretionary. This mechanism excludes certain juveniles or certain offenses from juvenile court jurisdiction and places juveniles in the adult criminal court system regardless of independent circumstances indicative of the juvenile’s amenability rehabilitation. See Tex. Fam. Code § 54.02(m).

15

See e.g., Douglas Harris, Does the Texas Juvenile Waiver Statute Comport with the Requirement of Due Process?, 26 Tex. Tech L. Rev. 813 (1995); Gordon A. Martin, Jr., The Delinquent and the Juvenile Court: Is There Still a Place for Rehabilitation?, 25 Conn. L. Rev. 57, 62-63 (1992); Robert O. Dawson, Delinquent Children and Children in Need of Supervision: Draftsman's Comments to Title 3 of the Texas Family Code, 5 Tex. Tech L. Rev. 509 (1974); Barry C. Feld, Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions, 62 Minn. L. Rev. 515, 517-19 (1978).

16

The juvenile court is not required to find each criterion before it can a transfer a case to district court. The court may order a transfer on the strength of any combination of the criteria. Tex. Fam. Code § 54.02(f); see e.g., United States v. Doe, 871 F. 2d 1248, 1254-55 (5th Cir.), cert. denied, 493 U.S. 917, 110 S. Ct. 276, 107 L. Ed. 2d 257 (1989). Should the juvenile court decide to waive its exclusive jurisdiction, the court is required to state in its order the specific reasons for waiver. Tex. Fam. Code § 54.02(h).

17

The court of appeals’ reading of Lagrone is incorrect. This Court determined in Lagrone that a trial court may order a defendant to submit to a state-sponsored psychiatric exam on future dangerousness when a defendant demonstrates an intent to put on future dangerousness expert testimony without violating the defendant’s Fifth Amendment right against self-incrimination. Lagrone, 942 S.W.2d at 612. The Lagrone Court also conclude that excluding defense counsel from the future dangerous examination did not violate the defendant’s right to counsel. Id. at 612.

18

As one commentator succinctly summarized:

There is convincing evidence that most juvenile court personnel, and the judges themselves regard the waiver of jurisdiction as the most severe sanction that may be imposed by the juvenile court. Not only is the juvenile exposed to the probability of severe punishment, but the confidentiality and individuality of the juvenile proceeding is replaced by the publicity and the normative concepts of penal law; the child acquires a public arrest record which, even if he is acquitted, will inhibit his rehabilitation because of the opprobrium attached thereto by prospective employers; if convicted as an adult, the child may be detained well past his twenty-first birthday, he may lose certain civil rights and be disqualified for public employment. Moreover, if sent to a typical adult prison, he is likely to be subjected to physical, and even sexual abuse by older inmates, and his chances for rehabilitation are likely to decrease significantly.

F. Thomas Schornhurst, The Waiver of Juvenile Court Jurisdiction: Kent Revisted, 43 Ind. L. J. 583, 586-87 (1968).

19

Harris, supra note 14 at 830 (citing Donna M. Bishop et al., Prosecutorial Waiver: Case Study of Questionable Reform, 35 Crime & Delinq. 179, 181 (1989)).

20

Section 54.02(e) requires that the report, as well as all other written matter considered in the transfer determination, be disclosed and made available to the juvenile’s attorney at least one day prior to the transfer hearing.

21

Judicial transfer is the only method for transfer that provides for a hearing before a juvenile is sent to adult criminal court. See supra n.14. Prosecutorial and legislative transfer fail to take into account the juvenile’s life circumstances which may demonstrate a traumatic or problematic life history.

22

Regarding the alleged offense and appellant’s prior delinquency, the report simply stated:

Raymond reports that he is currently residing in the Bexar County Juvenile Detention Center because, "they’re trying to say I shot somebody." He went on to deny the allegation. He states that he has been previously referred to the Juvenile Department for auto theft, burglary of a habitation, possession of marijuana. He knows that such behavior is wrong, knows right from wrong, and understands the possible consequences of such behavior. He understands the possible consequences of the upcoming certification of transfer hearing as well as the roles of the participants therein.

America's children can still count on their government to fulfill one promise. Both the federal and state governments are committed to spend $30K?

2008-03-20T02:27:00.000-07:00

This is the html version of the file http://www.schr.org/reports/docs/electricchair.doc.
G o o g l e automatically generates html versions of documents as we crawl the web.
To link to or bookmark this page, use the following url: http://www.google.com/search?q=cache:BgiUuLf9qHEJ:www.schr.org/reports/docs/electricchair.doc+texas+prosecutorial+misconduct+against+welfare+recipients&hl=en&ct=clnk&cd=5&gl=us&client=firefox-a

Google is neither affiliated with the authors of this page nor responsible for its content.
These search terms have been highlighted: texas prosecutorial misconduct against welfare recipients

THE ELECTRIC CHAIR AND THE CHAIN GANG:

CHOICES AND CHALLENGES FOR AMERICA'S FUTURE

Lecture presented by Stephen B. Bright, director of the Southern Center for Human Rights and J. Skelly Wright Fellow at Yale Law School, at the Notre Dame Law School on February 15, 1996, and published in Volume 71, Notre Dame Law Review, page 845 (1996).

Copyright (c) 1996 University of Notre Dame; Stephen B. Bright

The use of capital punishment in America today presents a number of fundamental moral issues about our society and our system of justice. It is fitting that we address those issues here at Notre Dame Law School, which has a well-deserved reputation for raising moral issues, for a deep commitment to justice, and for responding to human needs with compassion.

Our society and the legal professional are failing to meet the need for legal services of many of those most desperately in need of such services in cases involving the highest stake, life itself. There are, of course, urgent needs in other areas besides capital punishment. Those accused of crimes which do not carry the death penalty, the poor, people of color, homeless people, people with mental impairments, people who are HIV positive, people in prisons and jails and many others are without lawyers to represent them in cases which involve their freedom, their shelter, their survival.

Those needs will be greater when you graduate from law school than they are today. But there could be fewer jobs and less resources for those who respond. And, as you know, you will be saddled with enormous debts. This presents a challenge, but it should not deter you from responding. Indeed, my message to you is that you have no choice except to respond Ä the needs and the times demand it.

Let's examine the needs and how individuals and institutions may respond to them.

Children and the poor are going to have a tremendous need for your services. The states are increasingly passing so-called welfare reform measures and Congress and the President are about to follow suit with a measure that will "end welfare as we know it." The result of these "reforms" will be to put thousands of children on heating grates to live.

This message to "get a job or starve" comes even as America's most prosperous companies are "down-sizing" Ä laying off thousands of workers who dedicated their lives to their companies. You will be practicing law in a world in which your fellow human beings are increasingly looked upon by the corporate structure and the government as disposable, as Charles Reich eloquently describes in his book, Opposing the System.1 A person can work hard all her life and suddenly, one day, lose her job, her health insurance, her home and everything Ä not because she did anything wrong, but because the company does not need her any more. Many of those who lose their jobs in this manner have little prospect of finding employment elsewhere.

Many of those growing up in our country today have little chance of obtaining a job because we have not met the promise of providing a quality education for all of our children. Of course, a quality education is essential for a job in today's world. Silicon Valley did not appear by coincidence in California. The opportunities offered there are the sweet fruit harvested as a result of the country's best system of higher education. But now that system is being raided to pay for unnecessary prisons. California now spends more money on its prison system than on its university system.

As a result of the denial of education, opportunity and even hope for so many of our children and their parents, the choice for many by age sixteen is not the one you had Ä which college to attend, what career to pursue. It is a choice between trying to find a minimum wage job at a fast food restaurant or getting in on the material wealth of the American dream through the only business available, the selling of illegal drugs.

As was pointed out recently by Steven Duke and Richard St. John:

Those who would eviscerate welfare contend that welfare recipients need the threat of severe deprivation to motivate them to seek a job. But all the evidence proves that there are no jobs for most of the people now on welfare . . . . A recent study of fastfood workers found 14 applicants for every opening.

There is another glaring gap in the reasoning of those who want to rescind the war on poverty: They assume that the only alternative a welfare recipient has is legitimate work. This overlooks the omnipresent alternative of crime.2

But America's children can still count on their government to fulfill one promise. Both the federal and state governments are committed to spend up to $30,000 a year on every child in the United States. All that child must do to obtain this government support is to try to medicate his depression or despair with illegal drugs or commit some other crime. The state and federal governments are absolutely committed to having a maximum security prison cell for any child who commits a crime Ä especially if that child is a person of color.

Some of those accused of crimes will be entered in a lottery Ä a lottery rigged by race and poverty. Out of thousands eligible, about 250 will be condemned to be strapped down and shot, hung, gassed, electrocuted or injected with lethal drugs.

Other industrialized nations have abandoned the death penalty. Recently the Constitutional Court of South Africa unanimously found the death penalty to be cruel, unusual and degrading punishment under that country's constitution.3 But we continue to sentence people to death in the United States.

I was in a Georgia courtroom last fall defending an African American facing the death penalty for a crime committed against a white person. We were trying to persuade the judge to remove the Confederate battle flag from the courtroom Ä it is a part of the Georgia state flag. The flag was adopted in defiance of the Supreme Court's decision in Brown v. Board of Education4 that schools be integrated.5 We were also asking the court to bar the state from seeking the death penalty against my client because of racial discrimination in the infliction of the death penalty in Georgia.

As we were litigating those motions, I was struck by several thoughts. The Olympic games are coming to Georgia next year. Georgia, like South Africa, has a long history of apartheid, racial oppression and racial violence. Yet now South Africa has moved ahead, it has joined the rest of the civilized world in abandoning capital punishment. But Georgia is still flying the Confederate battle flag in its courtrooms and burning people up in its electric chair while others celebrate their deaths outside.

But the problems are not limited to Georgia. The sad fact is that, increasingly, our state and federal governments are offering the young not hope, opportunity and equality, but the threat of incarceration and execution. Last summer, President Clinton began running television advertisements proclaiming his support for the death penalty and tough sentencing laws. In 1994, he signed into law a crime bill providing for the death penalty for fifty federal crimes.

The federal death penalty was brought back in 1988. Since that time the Justice Department has approved fifty-four capital prosecutions. All but nine have been against people of color. During the Clinton administration, Attorney General Reno has approved twenty-seven capital prosecutions. Twenty were against African Americans. Yet despite this sorry record, even more capital crimes were adopted last year.

In addition to providing for more death, state and federal governments pass new measures each year to provide for more incarceration. Longer prison sentences, mandatory minimum sentences, unreasonable and inflexible sentencing guidelines and other legislation such as "three strikes and you're out" result in more people serving longer periods of time behind bars at enormous cost. The United States now imprisons more people than ever before Ä over 1.5 million in both prisons and jails Ä and has the highest incarceration rate of any country in the world.6 To keep up with the growth in prison population will require the construction of 1,725 new prison beds each week.

And legislatures are moving to make life even more unbearable for those crowded into prisons and jails. Alabama has brought back the chain gang.7 Its only purpose is degradation and humiliation of human beings for political points. A person cannot get much work done chained to another person. Alabama has also returned to the practice of having prisoners stand in the hot Alabama sun for ten hours a day breaking rocks with ten-pound sledge hammers.8 This activity serves no practical purpose Ä there is no need for the crushed rock Ä but apparently it serves political purposes.

Not long ago such barbarism would be seen as just another aberrational act by Alabama. Today, it starts a national trend. Arizona and Florida have already reinstated the chain gang and other states are contemplating it as well. And the Alabama legislature, continuing its role as the trend setter, is now considering a bill to return to caning as punishment for crime. Children even as young as thirteen are being prosecuted as adults. Not just in Alabama, where fourteen and fifteen year old children are serving sentences of life imprisonment without any possibility of parole, but all across the land.

As prisons and jails become even more overcrowded, conditions deteriorate. Yet legislation proposed in the United States Congress would restrict the ability of federal courts to provide relief for unconstitutional conditions in prisons.9 This legislation is based on irresponsible assertions by the National Association of Attorneys General and members of Congress that prisoner lawsuits are about nothing more important than soggy sandwiches or being deprived of watching football games on television or the use of electronic games.

Nothing is said about the unconscionable degradation and violence in America's prisons that was corrected only by order of federal courts in response to suits brought by prisoners. Judge Frank Johnson ordered the correction of barbaric conditions in Alabama's prisons twenty years ago. Judge Johnson found "horrendous" overcrowding with inmates sleeping on mattresses in the hallways and next to urinals; prisons were "overrun with roaches, flies, mosquitoes, and other vermin"; mentally disturbed inmates were "dispersed throughout the prison population without receiving treatment"; and robbery, rape, extortion, theft and assault were "everyday occurrences" among the general inmate population.10

Prisons in thirty-nine states and the District of Columbia have been put under some form of court supervision because of the failure of state officials to operate constitutional facilities. For example, a federal judge found that residents of the California State Prison at San Quentin were "regarded and treated as caged animals, not human beings."11 At a prison in Pendleton, Indiana, the federal court found that inmates were shackled spread- eagle to metal bed frames for up to two and a half days at a time and "frequently denied the right to use the toilet and had to lie in their own filth."12 At the Southern Center for Human Rights, our docket of suits on behalf of prisoners is not about melting ice cream, but about the most fundamental human rights of people, such as the right to safety and security, to basic medical and mental health care.

It is the threat of punishment and degradation, not the promise of hope and opportunity, that we hold out to children who have the misfortune to be born into poverty, the victims of brutal racism, those who have the misfortune to be born into dysfunctional families, those who are the victims of physical, sexual and psychological abuse, and those who have the misfortune to be born with a deficit in intellectual functioning or some other mental impairment.

One would think that if all we hold out to these children is a prison cell, the chain gang and the electric chair, at least we could provide a little process Ä fair procedure with a good lawyer Ä before we take away their lives or freedom and subject them to such suffering and degradation for the suffering and degradation they caused others. And one would think that, at the very least, we would make sure that racial prejudice, which already puts so many at such a disadvantage, would not influence the severity of their punishment. But both fair procedures and the access to courts through competent and experienced counsel are being taken away even from those with the most desperate needs of all, those facing the executioner. And the courts are completely indifferent to the prominent role that race plays in the criminal justice system.

Since 1977, Chief Justice Rehnquist has waged a relentless war on the once great Writ of Habeas Corpus, which the Supreme Court described over thirty years ago as "the common law world's 'freedom writ."'13 It gives a person the right to go into federal court and assert that he or she has been imprisoned in violation of the Constitution. It gives a life-tenure federal judge the power, where there has been a constitutional violation, not to let the defendant go free, but to require the state to provide a new and fair trial. The Supreme Court once said "there is no higher duty than to maintain it unimpaired."14

But the Supreme Court under the leadership of Justice Rehnquist Ä later Chief Justice Rehnquist Ä has placed all manner of technicalities in the way of vindication of violations of the Bill of Rights.15 And now Congress and the President are poised to finish off the Writ. The Anti-Terrorism Bill that has passed the Senate includes provisions which would limit even further the ability of federal judges to set aside an illegally obtained death sentence.16 It will impose time limits that would treat capital cases like small claims cases.

This legislation would leave enforcement of the Bill of Rights primarily to state court judges. This sounds reasonable, but it overlooks that state court judges in all but a handful of states must stand for election.17 Those judges are not independent. In high publicity, high profile cases, enforcing the law may cost them their jobs. In the present political climate, an elected judge who grants relief in a capital case signs his or her own political death warrant. It has happened in California. Three justices of the state supreme court were swept from office because of their votes in capital cases.18 It happened in Mississippi.19 It has happened in other places, but often it does not happen because judges pay more attention to the next election than to the law in making their rulings.

There was an election last year for the Texas Court of Criminal Appeals. Stephen W. Mansfield ran for a seat on the court on a three-plank platform: greater use of the death penalty, greater use of the harmless error doctrine, and fines for lawyers who file "frivolous appeals" in death penalty cases.20 Mansfield challenged an incumbent, a former prosecutor, who had served for twelve years on the court. Before the election, it was revealed that Mansfield had been a member of the Texas bar only a couple of years, that he had been fined for practicing law without a license in Florida, that he had almost no criminal law experience.21 Nevertheless, Mansfield won the election. The Texas Lawyer aptly described him after his election as an "unqualified success."22

Of course the most fundamental element of a fair process is the right to counsel. Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them. I am sure that many of you were inspired to go to law school, as I was, by Anthony Lewis' marvelous book, Gideon's Trumpet. It is the story of Clarence Earl Gideon who was convicted in Florida and then filed his own handwritten petition with the United States Supreme Court saying it just was not fair that he did not have a lawyer at his trial. This ultimately led to the case of Gideon v. Wainwright,23 which held that the poor person accused of a felony is entitled to a lawyer. Anthony Lewis observed after the decision:

It will be an enormous task to bring to life the dream of Gideon v. Wainwright Ä the dream of a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.24

Over thirty years after Gideon was decided, this dream has not been realized. There is no public defender office in many jurisdictions; in some jurisdictions, the indigent defense work is assigned to the lowest bidder.25 It was recently discovered that in Putnam County, Georgia, the local sheriff appointed lawyers to the cases of poor defendants and refused to appoint lawyers who would not agree to the plea dispositions proposed by the sheriff.26

Congress cut off all funding in the fall of 1995 for a very modest program to provide some measure of justice to those facing the death penalty Ä the post-conviction defender organizations or resource centers that had existed in twenty states. The resource centers, created in 1987, were a relatively small program for the size of the problem. All together they had about 200 lawyers to deal with the post-conviction representation of over 3,000 people condemned to death. But the young lawyers who were at the resource centers during their eight years of existence proved what a difference you can make if you tackle a problem, work hard at it, build an expertise and are committed to justice.

Some of the resource center attorneys were right out of law school. They were not paid very much by the prevailing standards of the legal profession. But after two or three years, those young lawyers had mastered the complex areas of criminal law, the sub-specialty of capital punishment law, and the procedural maze of state and federal post-conviction law. Besides building their own expertise and applying it, they recruited lawyers from firms to provide pro bono representation. Many lawyers responded to the call. And they, working with the resource center lawyers, provided the highest quality of representation.

And they made a difference. Walter McMillian, who spent six years on Alabama's death row, is a free man today because the Alabama Resource Center proved that he was innocent of the murder for which he was condemned to die.27 Lloyd Schlup is alive today because the resource center in Missouri established his innocence.28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence.29

In addition, these young lawyers, and the pro bono attorneys with whom they worked, exposed constitutional violations in other cases Ä violations such as failure to disclose exculpatory evidence, racial discrimination, and prosecutorial misconduct. These are not technicalities. These are constitutional violations that go to the very integrity and reliability of the system.

And because these lawyers and these programs made a difference, they came under attack by the National Association of Attorneys General, led by the new Attorney General of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.30 Apparently the attorneys general consider it a bad reflection on our criminal justice system that innocent people are being sentenced to death. The House and the Senate responded by cutting off all funding last fall.

Those who depend upon government funding must recognize that a reality of our times is that if they are effective in helping the poor or people of color, there is a very substantial risk that the government will take away or reduce the funding or, as with the federal Legal Services Corporation, which makes legal assistance available to the poor in civil cases, interfere with their ability to help their clients by placing restrictions on their practices. Of course, that has always been the case in many states; the only programs that received funding were the ones that were completely ineffective. But at least the federal government could be counted on for some programs and the federal courts for some measure of justice that could not be obtained in the state courts. But now there is no commitment to access to the courts or to fairness on the part of our national leadership in either party.

The result is that many who most need legal assistance are without it. Many of the 3,000 men, women and children on death rows throughout the country are without counsel. Many of the lawyers from the capital resource centers who would have provided representation have gone to other jobs in other states. This leaves two choices. One is the states can execute the condemned without providing counsel for the post-conviction stages of review. The Supreme Court has held there is no right to counsel in state post-conviction proceedings.31 The other choice is to assign a lawyer who knows nothing about post- conviction practice and pay the lawyer a token amount for providing the appearance of some process. Alabama compensates lawyers $600 for handling post-conviction representation. An attorney who devotes the necessary time will be earning less than ten cents an hour. But the fees in Alabama are better than in Georgia, Mississippi and some other states. They pay nothing.

If the states do provide counsel, we can expect to see the same quality of representation during post-conviction that we see at trial. And the quality of representation at trial in capital cases has been a disgrace to the legal profession.32 For example, judges in Houston, Texas have often appointed to defend capital and other criminal cases a lawyer who occasionally falls asleep during trial.33 When a defendant in a capital case there once complained about his lawyer sleeping, the judge responded that the Constitution guarantees the accused a lawyer, but it does not guarantee that the lawyer must be awake.34 The trial of a woman facing the death penalty in Alabama had to be suspended for a day because the lawyer appointed to defend her was too drunk to go forward.35 The judge sent him to jail for a day to dry out and then produced both the client and lawyer from jail and resumed the trial. She was sentenced to death.

Last month, I handled a post-conviction proceeding in a capital case in Georgia in which the court-appointed lawyers did not make one objection during the entire trial, which lasted only one and a half days.36 Only one motion was filed prior to trial. One of the attorneys appointed to defend the accused had never heard of two important Supreme Court decisions in Georgia capital cases, Furman v. Georgia37 and Gregg v. Georgia,38 which provide the structure for much of the Eighth Amendment law governing capital trials. Another lawyer who has handled a number of criminal and capital cases in Georgia was asked to name all of the criminal law decisions of which he was aware. He could answer only Miranda and Dred Scott.39

The Alabama Supreme Court affirmed a conviction and death sentence in a case after receiving a brief from the lawyer that was only one page long.40 The lawyer did not show up for oral argument. One might have expected the Alabama Supreme Court Ä or the courts in the other cases I have described Ä to call a halt to proceedings where the lawyering was so bad and appoint new counsel, not only to protect the rights of the accused, but also so that the court could do its job. Do these courts care at all about justice? How can a court decide a capital case based on a one-page brief and without oral argument? But the Alabama Supreme Court affirmed without ever having adequate briefing or any argument. The client was eventually executed.

Poor people do not choose their lawyers. They are assigned lawyers by state court judges, many of whom are elected and are more concerned about the next election than the Bill of Rights. We must ask, is it morally right to assign a poor person a lawyer who does not know the law, who does not care enough to investigate, who is incapable of properly handling such a serious case, and then penalize the poor person for errors made by the lawyer?

Another great moral and legal issue that courts continue to ignore is the role that racial prejudice plays in deciding who dies. Edward Horsley was executed in Alabama's electric chair on February 16, 1996. He was the eleventh African American put to death by Alabama of the fourteen that have been executed since the Supreme Court allowed resumption of capital punishment in 1976. He and his codefendant were sentenced to death by all- white juries selected in Monroeville, Alabama.

Two African American men sentenced to death by an all-white jury in Utah were executed even though jurors discovered during a lunch recess a note which contained the words "Hang the Nigger's" [sic] and a drawing of a figure hanging on a gallows.41 No court, state or federal, even had a hearing on such questions as who wrote the note, what influence it had on the jurors, and how widely it was discussed by the jurors. William Henry Hance was executed in Georgia without any court holding a hearing on the use of racial slurs by jurors who decided his fate.42 The racial disparities in the infliction of the death penalty are undeniable,43 yet courts refuse even to hold hearings on such ugly racial incidents as I have described here.

But even if our system could provide the person facing the death penalty with a fair and impartial judge, a responsible prosecutor who was beyond political influences, a capable defense lawyer, and a jury which represented a fair cross-section of the community, it would not eliminate the discrimination and unfairness in the infliction of the death penalty. No procedure employed by the court during jury selection or trial can eliminate the centuries of racial prejudice and discrimination in our history. Beyond that, the task of deciding who should live and who should die is simply too enormous for our court system. And our courts do not function best when caught up in the politics and passions of the moment, which is almost always the case when a capital trial is taking place.

I am reasonably confident that this sad situation is only going to get worse because no one in a leadership position speaks out against it. That was not always the case. Over thirty years ago, the Attorney General of the United States, Robert F. Kennedy, observed, "the poor person accused of a crime has no lobby." And he did something about it. He, the Attorney General of the United States, became a lobby for the poor person. He found responsible leaders on Capitol Hill who responded to his call. Together they brought about passage of the Criminal Justice Act to give lawyers to poor people accused of crimes in the federal courts. One opportunity that will be open to you upon graduation is to work at one of the federal defender offices all across the country now in existence thanks to the leadership of Attorney General Kennedy. Attorney General Kennedy supported the Criminal Justice Act not because he was soft on crime Ä Robert Kennedy was a tough prosecutor Ä but because he believed in fairness. It was as simple as that.

But after the election of 1994, as the state attorneys general and politicians in both parties moved to take away funding for the resource centers Ä to remove the small fig leaf of fairness that did not begin to cover the injustices and inequities in the use of the death penalty Ä not a word of protest was heard from the White House or the Department of Justice.

Those of us who remember Robert Kennedy hoped that someone might at least say: "Wait, if we are going to have the death penalty, if we are going to kill our own people Ä even our children Ä at least we must give lawyers to those accused of crimes." And not just a stable of plug horses that would not be accepted by a decent glue factory, but real lawyers who know what they are doing. It is a matter of fairness. We hoped that someone might say: "Wait, we cannot gut the great Writ of Habeas Corpus. Life and liberty are too precious. Even in this material world, life and liberty should have the protection of the federal courts." Our country could have benefitted from a lesson in fairness and due process from the President or the Attorney General or some of the leaders in Congress.

Those are some of the challenges. What can we do about them?

It can be difficult to find a public interest job Ä not as hard as some think, but it is certainly more difficult than finding a job with a law firm. As I said earlier, there are no public defender offices in many jurisdictions where those accused of crimes have the greatest need for competent legal counsel. And it is getting harder. Many of the capital resource centers have closed. The civil legal services programs are also under attack for providing too much justice. They are being cut back and restrictions placed on their work. And of course you have those law school debts.

Law schools and human rights organizations must come to the rescue. The legal profession must respond to the challenge. And you as individuals must respond to the problems I have described.

A number of law schools have responded. The University of Texas Law School now has a capital punishment clinic which provides an outstanding experience for students and desperately needed help for lawyers defending capital cases in that state. The Capital Clearinghouse at the Washington and Lee College of Law has helped improve the quality of representation in Virginia. Loan forgiveness programs are making it possible for law school graduates to take jobs which pay very little but allow them to respond to desperate needs. Yale and New York University are among the leaders in providing full loan forgiveness for students who go into public interest careers. Law students at many institutions have created public interest foundations, through which those who have well paying jobs make contributions to enable other graduates to accept public interest jobs and pay their loans.

Our program, the Southern Center for Human Rights, has benefitted tremendously in the last six years because each year we have had a Skadden Fellow, a new law graduate whose salary and benefits were paid for by the fellowship foundation of the law firm of Skadden, Arps, Slate, Meagher & Flom. Now in its seventh year, the Skadden program provides two-year fellowships for twenty-five law graduates. Thanks to that program, we have had three outstanding lawyers who would not have been with us otherwise. There are clients who are alive today who would be dead were it not for our Skadden Fellows. It is time for other firms to follow Skadden's lead.

Some people concerned about the death penalty created last year the Harry A. Blackmun Fellowship at our office. That fellowship is making it possible for us to put another recent law graduate in the field to respond to these desperate needs.

Judy Clarke, the federal public defender in Spokane, Washington, recently donated her fees for representing Susan Smith in South Carolina, $83,000, to the South Carolina Post-Conviction Defender Organization so it could establish a fellowship to provide representation for condemned inmates.44 This contribution was made by a public defender who is providing representation in the courts to poor people every day. Where is the rest of the legal profession? Lawyers have a monopoly on access to justice; they have a duty to see that it is not only available to those who can pay.

But what is also needed is the response of individuals who are willing to go where the needs are. The legal services offices that survive, the public defender offices that exist, and the various public interest law projects, like my office, are not going to offer you jobs a year before you graduate like the law firms do. The reason is we do not know if we will be cut back thirty percent or eliminated completely.

But those offices will need you at some point. Last year, two of my third-year students at Yale Law School were discouraged in January because they could not find public defender jobs. But by May they were calling for help in deciding between the three public defender offices that had made offers. Another recent graduate worked for a criminal defense lawyer in Atlanta while he waited for his bar results and an opening at a public defender office. He passed the bar and will start practicing with the public defender office in Atlanta next month.

I also urge you to explore creating your own programs, your own non-profit public interest law projects Ä not offices where lawyers get rich, but places where people get justice. But to do that, you must settle for less in material rewards than what other lawyers are receiving for their work.

It is easy to lose perspective. Remember that it is no sacrifice to receive the same income as that received by teachers, farmers, workers on the assembly line and other good, decent working men and women who raise families and contribute to their communities. To the contrary, it is a great privilege to devote one's life to things that are important and about which you care passionately.

You who will someday graduate from law school have the opportunity to become what Martin Luther King, Jr., in one of his many great sermons, called "drum majors for justice." Dr. King described the drum major for justice as one who speaks the truth Ä no matter how unwelcome it may be and no matter how uncomfortable it may make the listener Ä and as one who gives his or her life to serving others: to feeding the hungry, clothing the naked, and Ä particularly important for lawyers Ä to visiting those who are in prison, and to loving and serving humanity.45 He described his goal as a drum major for justice: "I just want to be there in love and justice and in truth and in commitment to others, so that we can make of this old world a new world."46

Follow the example of a young lawyer who graduated from Howard Law School, opened a practice in Baltimore and handled civil rights cases and became a great drum major for justice Ä Thurgood Marshall. Follow the example of a nun who ministered to the poor in the projects of New Orleans and on death row at Angola Ä Sister Helen Prejean.47

I offer my office as an example of what you can do only because it is the one I know something about and we have had some experience in surviving in hard times without much money. We have never received any government money. We must spread very thinly what little money we have to provide justice for those most in need of it. And that requires living a simple life, not letting a lot of material things clutter our existence.

We pay everyone the same, whether secretary, senior lawyer, or junior lawyer. Our annual salaries have been as low as $8,500. Now, everyone makes $23,000. You can live on this amount. I have lived on such a salary for the last thirteen years. But, of course, so have many other people in our society who work at jobs that are not nearly so interesting and fulfilling as what we do.

A law firm may pay one partner $600,000 or even more. At the Southern Center for Human Rights, that is the entire operating budget for a year for nine lawyers, three investigators, one paralegal, three administrative people and a number of law students. With that we provide representation in fifty capital cases and twenty-four cases challenging prison and jail conditions.

There are other possibilities. The new technology of today enables us to practice law from our homes with a computer, a modem, a printer, a telephone and a fax machine. It is possible to maintain very low overhead so you can charge reasonable fees for services or even barter, as William Kunstler often did with his neighbors.

Consider practicing law not in Washington, New York or the Bay Area, but in communities where there has never been a lawyer who would question the status quo, who would give African Americans the same representation as white people, who would give the poor the same representation as the rich. You can change that. Those communities are not hard to find. Get a map of any state in the Union. It will be full of them.

We live in a society where it is possible to isolate ourselves from the poverty, the racism, the injustices that affect the lives of so many people. The culture of becoming a lawyer is one in which there is almost overwhelming temptation to take the job that pays the most money to pay those debts; but then it is so easy to fall into a costly culture of BMWs, big houses, and summer homes. There is so much money available and so many good uses we can think of for it, that it is easy to give in to the twin evils of complacency and complicity.

I urge you to commit yourselves today not to do that. As Elie Wiesel said in accepting the Nobel Peace Prize, "Our lives no longer belong to us alone; they belong to all those who need us desperately."48 I have not had enough time to describe all the desperate needs, only some of what needs to be done to work toward finally realizing the promise of Clarence Earl Gideon's case.

Your time, your talents and your commitment are urgently needed. Let me give you an example of how much you are needed. Cornelius Singleton, a mentally retarded African American youth on death row in Alabama, went eight years without seeing the lawyer assigned to represent him in post-conviction proceedings. Can you imagine what it must be like to be on death row for eight years and not see a lawyer? Not to know whether you are going to be executed the next day, the next week, the next year? To have no idea what is even happening on your case? Do you see what a difference you could make if you had been Cornelius Singleton's lawyer? Just by going to see him, by counseling him, you would have provided a valuable service.

We cannot solve all the problems, but we can lend a helping hand and our professional skills to those who most need us. Like those who helped slaves escape to freedom as part of the underground railroad before the Civil War, we can help people reach safe passage, one at a time, from the injustices which threaten to destroy them.

And what a difference you can make to those individuals whom you help. Last summer, one of my clients, Tony Amadeo, who had been condemned to die by Georgia when he was only eighteen years old, but whose death sentence was set aside due to racial discrimination,49 graduated summa cum laude from Mercer University. Do not let anyone tell you that you cannot make a difference as a lawyer.

And we can bear witness to the injustices we see until we shake our fellow citizens out of the indifference which we see about us.

I leave you with the challenge issued by Justice Thurgood Marshall, six months before he died, in accepting the Liberty Bell Award in Philadelphia. Justice Marshall was frail. He was in a wheelchair. But by the end of his remarks, it was observed that "his voice was as booming as [it had been] in those magnificent times when he argued before the Supreme Court."50 Justice Marshall said:

I wish I could say that racism and prejudice are only distant memories . . . and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity. But as I look around, I see not a nation of unity but of division Ä Afro and white, indigenous and immigrant, rich and poor, educated and illiterate. . . .

Look around. Can't you see the tensions in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?

We cannot play ostrich. Democracy cannot flourish among fear. Liberty cannot bloom among hate. Justice cannot take root amid rage. We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. . . . We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and an absence of leadership. We must dissent because America can do better, because America has no choice but to do better. Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.51

That's the challenge. To continue the work which Justice Marshall so nobly advanced in his great career at the bar. Now it's your turn.

I hope to see you in the courts.

. Charles Reich, Opposing the System (1995).

. Steven B. Duke & Richard St. John, Less Welfare: More Crime, Pittsburgh Post-Gazette, Jan. 14, 1996, at B1.

. The State v. Makwanyane, Constl. Ct. of South Africa, June 6, 1995, reprinted in 16 Hum. Rts. L.J. 154 (1995).

. 347 U.S. 483 (1954) (holding that racial segregation in the public schools violates the Equal Protection Clause); see also Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (requiring that desegregation of the public schools proceed "with all deliberate speed").

. Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D. Ga. 1995) (finding that the flag was adopted "as a statement of defiance against federal desegregation mandates and an expression of anti-black feelings").

. 1,725 New Prisons Beds a Week; Biggest 1-Year Spurt in Inmate Population, Atlanta Const., Dec. 4, 1995, at 1A (reporting a Department of Justice announcement that there are 1.1 million inmates in prison and another 484,000 in jails, giving the United States an incarceration rate of 565 per 100,000, higher than even Russia, which had been the world leader).

. Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. Times, Mar. 26, 1995, at 16; Brent Staples, The Chain Gang Show, N.Y. Times Mag., Sept. 17, 1995, at 62.

. Alabama to Make Prisoners Break Rocks, N.Y. Times, July 29, 1995, at 5.

. Stop Turning Out Prisoners Act, H.R. 667, 104 Cong., 1st Sess. (1995). After some modification, the restrictions were adopted as the Prison Litigation Reform Act by the Congress as a rider to the Omnibus Rescission and Appropriations Act of 1996, Pub. L. 104-134, and signed into law by President Clinton on April 26, 1996.

. Pugh v. Locke, 406 F. Supp. 318, 322-27 (M.D. Ala. 1976), aff'd as modified, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).

. Toussaint v. McCarthy, 597 F. Supp. 1388, 1400 (N.D. Cal. 1984), aff'd in relevant part, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

. French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). These are, of course, only a few of the many examples of unconscionable constitutional violations that could be found in America's prisons before they were corrected by federal lawsuits brought on behalf of prisoners. For an excellent and sobering account of conditions in the Mississippi State Pentitentiary over the decades before federal court intervention, see David M. Oshinski, "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice (1996); see also Nils Christie, Crime Control as Industry: Toward GULAGS, Western Style? (1993) (a description of failures of the American prison system by an eminent Norwegian criminologist); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. Pa. L. Rev. 639 (1993) (describing reforms accomplished through corrections litigation).

. Smith v. Bennett, 365 U.S. 708, 712 (1961).

. Id. at 713 (quoting Bowen v. Johnson, 306 U.S. 19, 26 (1939)).

. The Court has limited the availability of the Writ to vindicate constitutional rights by adopting strict rules of procedural default, see, e.g., Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91 (1977); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989); by excluding most Fourth Amendment claims from habeas corpus review, Stone v. Powell, 428 U.S. 465 (1976); by requiring deference to fact finding by state court judges, see, e.g., Patton v. Yount, 467 U.S. 1025 (1984); Sumner v. Mata, 439 U.S. 539 (1981), after remand, 455 U.S. 591 (1982), after second remand, 464 U.S. 957 (1983); by making it more difficult for a petitioner to obtain an evidentiary hearing to prove a constitutional violation, Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992); by adopting an extremely restrictive doctrine regarding the retroactivity of constitutional law, Teague v. Lane, 489 U.S. 288 (1989); James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991); by reducing the harmless error standard for constitutional violations recognized in federal habeas review, Brecht v. Abrahamson, 507 U.S. 619 (1993); and by restricting when a constitutional violation may be raised in a second habeas petition, McCleskey v. Zant, 499 U.S. 467 (1991).

. The Antiterrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton on April 24, 1996, Pub. L. 104-132, requires deference by federal courts to decisions of state courts unless the decision is "contrary to, or involved an unreasonable application of, clearly established Federal law," id. s 104(3); establishes a statute of limitation for the filing of habeas corpus petitions, id. s 101; further restricts when a federal court may conduct an evidentiary hearing, id. 104(4); and adds new barriers to hearing a successive habeas corpus petition, id. s 105; see David Cole, Destruction of the Habeas Safety Net, Legal Times, June 19, 1995, at 30.

. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 779 n.89 (1995) (in 32 of the 38 states that have the death penalty, state court judges must stand for periodic election or retention).

. Governor George Deukmejian announced his opposition to Chief Justice Rose Bird because of her votes in capital cases and warned two other justices he would oppose them unless the death penalty was upheld. Leo C. Wolinsky, Support for Two Justices Tied to Death Penalty Votes, Governor Says, L.A. Times, Mar. 14, 1986, at 3; Steve Wiegand, Governor's Warning to 2 Justices, S.F. Chron., Mar. 14, 1986, at 1. He eventually campaigned for the removal of all three justices and the voters responded by voting all three from their positions. Frank Clifford, Voters Repudiate 3 of Court's Liberal Justices, L.A. Times, Nov. 5, 1986, pt. 1, at 1 (describing results of election and commercials in the last month of the campaign which insisted "that all three justices needed to lose if the death penalty is to be enforced").

. David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1, 15-20 (1992) (describing how Justice James Robertson was defeated by a "law and order candidate" who had the support of the Mississippi Prosecutor's Association). Robertson was the second justice to be voted off the Mississippi Supreme Court in two years for being "soft on crime." Andy Kanengler, McRae Overwhelms Justice Joel Blass, Clarion-Ledger (Jackson, Miss.), June 6, 1990, at 4A; Tammie Cessna Langford, McRae Unseats Blass, Sun Herald (Biloxi, Miss.), June 3, 1990, at A1.

. Janet Elliott & Richard Connelly, Mansfield: The Stealth Candidate; His Past Isn't What it Seems, Tex. Law., Oct. 3, 1994, at 1, 32.

. Id.; John Williams, Election '94: GOP Gains Majority in State Supreme Court, Houston Chron., Nov. 10, 1994, at A29.

. Jane Elliott, Unqualified Success: Mansfield's Mandate; Vote Makes Case for Merit Selection, Tex. Law., Nov. 14, 1994, at 1.

. 372 U.S. 335 (1963).

. Anthony Lewis, Gideon's Trumpet 205 (1964).

. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1849-55 (1994).

. Judy Bailey, Does Sheriff Run Putnam's Indigent Defense?, Fulton County Daily Rep., Nov. 10, 1995, at 1.

. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1.

. See Schlup v. Delo, 115 S. Ct. 851 (1995).

. Kyles v. Whitley, 115 S. Ct. 1555 (1995) (finding a violation of due process by the prosecution due to failure to turn over exculpatory evidence).

. Marcia Coyle, Republicans Take Aim at Death Row Lawyers, Nat'l L.J., Sept. 11, 1995, at A1, A25 (describing the effort of South Carolina's Attorney General and other members of the National Association of Attorneys General to eliminate funding for the post-conviction defender organizations even though the organizations had established the innocence of at least four men condemned to die); David Cole, Too Expensive or Too Effective? The Real Reason the GOP Wants to Cut Capital-Representation Centers, Fulton County Daily Rep., Sept. 8, 1995, at 6 (pointing out that eliminating funding for the capital representation centers would increase the cost of providing representation, but decrease the quality).

. Murray v. Giarratano, 492 U.S. 1 (1989).

. For a more comprehensive discussion of the problems of deficient representation in capital cases and the reasons for it, see Bright, supra note 25.

. Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System, Wall St. J., Sept. 7, 1994, at 1 (describing Houston lawyer Joe Frank Canon, who is known for hurrying through capital trials like "greased lightening," occasionally falls asleep, and has had 10 clients sentenced to death); Ex Parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (Maloney, J., dissenting) (noting testimony of jurors and court clerk that defense attorney slept during trial).

. John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Said, Houston Chron., Aug. 14, 1992, at A35.

. Record at 846-49, Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992), cert. denied, 113 S. Ct. 1297 (1993).

. Judy Bailey, A Poor Example of Indigent Defense, Fulton County Daily Rep., Jan. 16, 1996, at 1 (describing hearing in Fugate v. Thomas, Super. Ct. of Butts Co., Ga., No. 94-V-195 (Jan. 10-11, 1996)).

. Furman v. Georgia, 408 U.S. 238 (1972) (striking down Georgia's death penalty statute).

. Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the death penalty statue enacted by the Georgia legislature in 1973 in response to the Court's decision in Furman).

. Transcript of Hearing of Apr. 25-27, 1988, at 231, State v. Birt, Super. Ct. of Jefferson Co., Ga. No. 2360 (1988) (on file with author). The lawyer was referring to Miranda v. Arizona, 384 U.S. 436 (1966), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott was not a criminal case.

. Brief for Appellant, Ex parte Heath, 455 So. 2d 905 (Ala. 1984). The brief is set out in full in Bright, supra note 25, at 1860-61 n.154.

. See Andrews v. Shulsen, 485 U.S. 919 (1988) (Marshall, J., dissenting from denial of certiorari).

. See Hance v. Zant, 114 S. Ct. 1392 (1994) (Blackmun, J., dissenting from denial of certiorari); Bob Herbert, Mr. Hance's 'Perfect Punishment,' N.Y. Times, Mar. 27, 1994, at D17; Bob Herbert, Jury Room Injustice, N.Y. Times, Mar. 30, 1994, at A15.

. For further discussion of the influence of race on the imposition of the death penalty and the failure of legislatures and courts to deal with the problem, see Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

. Clif LeBlanc, Smith Lawyer Donates $83,000 in Fees, The State (Columbia, S.C.), Feb. 2, 1996, at B3; Andrew Blum, Defender Proffers Fees, Nat'l L.J., Apr. 15, 1996, at A7.

. Testament of Hope: The Essential Writings of Martin Luther King, Jr. 259- 67 (James M. Washington ed., 1986).

. Id. at 267.

. See Helen Prejean, C.S.J., Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993) (describing her work with death row inmates).

. Wiesel's Speech: This Honor Belongs to All the Survivors, N.Y. Times, Dec. 11, 1986, at A2.

. Amadeo v. Zant, 486 U.S. 214 (1988).

. A. Leon Higginbotham, Jr., Justice Clarence Thomas in Retrospect, 45 Hastings L.J. 1405, 1430 (1994).

. Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall 453-54 (1993).

Page

Type of Corporate Organization (private only):

2008-01-30T18:43:00.000-08:00

Nueces County Juvenile Justice Center/Overflow

Type: Pre-Adjudication Facility
Operator Type: Public
Type of Corporate Organization (private only):
Legal Owner of Property: Nueces County
Operator Name: Nueces County
County: NUECES
Facility ID Number: 1781001

Status: Active

Click here for pictures of this facility.
CONTACT INFORMATION

Administrator: Jay Raveling
Administrator's Email: jay.raveling@co.nueces.tx.us

Facility Telephone: 361-561-6041
Facility Fax: 361-561-6090
Mailing Address
2310 Gollihar, Corpus Christi, TX, 78415

Physical Address
2310 Gollihar Rd, Corpus Christi, TX, 78415
SECTION I: GENERAL INFORMATION

Type of Law Enforcement Jurisdiction

Police Department

Name of Law Enforcement Jurisdiction

Corpus Christi Police Department

Law Enforcement Address

321 John Sartain , Corpus Christi , TX , 78415

Law Enforcement Telephone Number

361-886-2600

Date Facility Opened

6/1/1991

Design/Rated Capacity

40

Anticipated Number Of New Beds To Be Operated During Calendar Year 2007

0

Are any of these beds certified as both pre- and post-adjudication? Yes

What is your bed configuration? Pods

If yes, how many beds are dually certified? 4

If yes, how many typically designated for pre? 2 If yes, how many typically designated for post? 2

Co-Located Facility

No

Average Cost per Day for Contract Placement

75

Fire Inspection Jurisdiction

State

Gender of Population Accepted

Both

Contracts with:

ACA Accredited

No

ACA Accreditation Expiration Date

SECTION II: EDUCATIONAL SERVICES
Who provides educational services (Probation Department, School District, Charter, Other)?

School District
Who pays for educational services (Probation Department, School District, Charter, Other)?

School District
Are certified teachers used to provide instruction to residents in the facility?

Yes
If certified teachers are not used, who provides instruction?

Does a juvenile receive credit for school work completed while in placement?

Yes
Does the facility provide year-round education?

No
Are educational basic skills assessed upon entrance to the facility?

Yes
Are educational basic skills assessed upon the exit to the facility?

No
Are special educational services provided? Yes
Does the facility offer a GED program?

No
Does the facility offer vocational training programs?

No
Is the educational program self-paced?

No
Is the classroom instruction solely computer based?

No

Hours Per Week
How many hours per week on average are the required core curricula offered. (English-language arts, math, science, social studies)? 4-8
SECTION III: MEDICAL/MENTAL HEALTH SERVICES
How many (at a minimum) of the following types of personnel are available on-site and/or on-call at all times?
On Staff Contractual
Physician No Yes
Physician's Asst. (PA) No No
Licensed Vocational Nurse/Licensed Practical Nurse (LVN/LPN) No Yes
Registered Nurse (RN) No No
Nurse Practitioner (NP) No No
Other No No
How many (at a minimum) of the following types of personnel are available on-site and/or on-call at all times?
On Staff Contractual
Psychiatrist No Yes
Psychologist No Yes
Licensed Marriage and Family Therapist (LMFT) No No
Master of Science in Social Work (MSSW) No Yes
Licensed Professional Counselor (LPC) No Yes
Licensed Chemical Dependency Counselor (LCDC) No Yes
Qualified Mental Health Professional (QMHP) No Yes
Licensed Sex Offender Treatment Providers (LSOTP) No No
What services does your facility provide or contract for?

Crisis Intervention
Mental Health Assessments / Evaluations
Mental Health Treatment
Independent Counseling
SECTION IV: RESTRAINTS

Physical Restraint Technique Utilized

Handle With Care
Facility utilizes the following restraints:

Restraint Chair
SECTIONS V-VII POST-ADJUDICATION FACILITIES ONLY

Where is the Conduct in bona Fide "good citizenship" being taught @ C.C.I.S.D.? Few and far between is done to bother teaching the Law........

2008-01-18T00:10:00.000-08:00

Reciprocity~The Law teacher bothers.....

Hedge funds, inflation and no negotiations........
Posted on January 10, 2008 at 04:35:59 AM by D1

The law~

TEXAS EDUCATION CODE EXCERPT

Below are portions of the Texas Education Code which deal with compulsory attendance. Home schools are exempt from compulsory attendance according to Section 25.086(a)(1) because they have been determined by the Texas courts to be private schools. Included are the portions of greatest interest to Texas home educators. The complete Texas Education Code can be found on the Internet at http://www.capitol.state.tx.us/statutes/ed.toc.htm .

Sec. 25.085. Compulsory School Attendance.

(a) A child who is required to attend school under this section shall attend school each school day for the entire period the program of instruction is provided.

(b) Unless specifically exempted by Section 25.086, a child who is at least six years of age, or who is younger than six years of age and has previously been enrolled in first grade, and who has not completed the academic year in which the child's 18th birthday occurred shall attend school.

(c) On enrollment in pre-kindergarten or kindergarten, a child shall attend school.

Sec. 25.086. Exemptions.

(a) A child is exempt from the requirements of compulsory school attendance if the child:

(1) attends a private or parochial school that includes in its course a study of good citizenship...

(5) is at least 17 years of age and:

(A) is attending a course of instruction to prepare for the high school equivalence examination; or
(B) has received a high school diploma or high school equivalence certificate...

at the second floor is our legal section of the mall.
http://www.thsc.org/about_us/texlaws.asp

Replies:

* Hedge funds, inflation and no negotiations...Law schoolm or lock up ville..... - By D1 January 10, 2008 at 05:12:52 AM
edge funds, inflation and no negotiations...Law schoolm or lock up ville.....
Posted on January 10, 2008 at 05:12:52 AM by D1

4. Does the school district have to approve my curriculum?

Absolutely not! Home schools in Texas are private schools, and private schools are not regulated by the state. The school district has no authority to approve curricula used by private schools.

Back to CURRICULUM

5. What is "a study of good citizenship"?

"Good citizenship" is usually taken to mean civics. Public schools teach one semester of civics, usually in the senior year of high school. Teaching U.S. and Texas history, government (theoretical and practical), the pledge of allegiance, and similar activities will also help meet this requirement.

Back to CURRICULUM

6. Do I need accredited curriculum? If so, where can I get it?

Actually, schools are accredited not curricula. To be accredited, a school must meet certain standards such as holding classes a minimum number of days and hours and having certified teachers. There are accredited correspondence schools in which the student can enroll. In these cases, teachers from the schools make the assignments and grade the work. These programs tend to be more expensive because the school is doing more of the work. Being enrolled in an accredited school is not legally necessary to home school. (See question #3 above.)

Back to CURRICULUM

7. Do I need to register with the local school district?

No. Home schools in Texas are private schools and are not regulated by the state. Private schools do not have to register their students with the local school district. If your children are currently enrolled in public schools, you should follow the procedure outlined in question #1. NOTE: Home-school families are not required to present an annual letter of assurance. (See the commissioner’s letter.)

Back to SCHOOL DISTRICT

8. What if a school district official calls or a truant officer comes to the door?

Be polite and friendly. Smile. Stay calm.

Get his name and business card.

Ask what prompted his visit or call.

Tell him, "My children are privately educated at home."

Answer other questions with, "I will be glad to cooperate as far as the law requires, but you will need to give me your request in writing."

Repeat the above statements as often as necessary. Do not be afraid of silence.

After he leaves, write down everything that occurred.

Call THSC Association, (806) 744-4441, as soon as possible to report the contact.

Do not allow him to enter your home or to speak to your children. The only legal ways into your home are with your permission or a search warrant. If you receive a written request, respond with a letter of assurance. (See sample.) If you do not respond to a written request in a timely manner, the school district can file truancy charges against you for lack of cooperation.

Back to SCHOOL DISTRICT

9. What if the school district wants me to fill out a form?

You may fill out the form if you wish. However, THSC does not recommend following this procedure. In order to cooperate with the school district's inquiry, you are only required to give the assurance letter mentioned above. Many times, forms ask for information that is not required and you may not want to give. Also, voluntary compliance with an unlawful request can often lead to the request becoming mandatory.

Back to SCHOOL DISTRICT

10. May my child participate in classes at the public school?

A local public school could allow your child to participate in classes. The policy on this matter is established by the locally elected school board.

Back to SCHOOL DISTRICT

11. May my child participate in extracurricular activities at the public school?

At this time, a local public school could allow your child to play in the band or other such activities. The policy on this matter is established by the locally elected school board. However, the student would not be allowed to participate in events sponsored by the University Interscholastic League (UIL) such as athletic competitions or band and choir contests, because of a UIL rule requiring all participants to be full-time students enrolled in public schools.

Back to SCHOOL DISTRICT

12. What happens if my child wants to enroll in public school?

School districts set the requirements for entry into their schools. This is a local decision-not one made by the state of Texas. You should ask the local school district for written copies of its policy regarding enrolling students from unaccredited private schools. (Click here for the letter from the commissioner of education to school districts.)

Back to SCHOOL DISTRICT

13. How many days per year must we have school?

The Texas Education Code requires that public schools meet 180 days per year; public school students must attend 170 days/year. This applies to public schools only. Home schools in Texas are private schools, and the state of Texas does not regulate the number of days per year that private schools must be in session or the number of days a student must attend.

Back to REQUIREMENTS

14. How many hours a day must we conduct school?

Home schools in Texas are private schools and are not regulated by the state. No minimum hours are required. You will probably find that your student can accomplish more work in a shorter period of time than a public school child if for no other reason than because of not having to stand in line, wait for roll call, and the like.

Back to REQUIREMENTS

15. What is the compulsory school age requirement?

A child who is age six as of September 1 of the current school year and who has not yet reached his 18th birthday must attend school through the year in which he turns 18 unless he has graduated. (See Texas Education Code.)

Back to REQUIREMENTS

16. What about testing my child?

Although the state of Texas does not require testing of private school students, many parents give their children annual tests using nationally-normed achievement tests.

Back to REQUIREMENTS

17. May my child go out in public during the day? What if someone questions him about why he is not in school?

Home schools in Texas are private schools. Home-school parents are law-abiding citizens and should not feel the need to hide their children during the day. If someone asks you or your child why he is not in school, you should respond that you educate at home and that you have already accomplished your work for the day or that you are on a school field trip. You should be aware that if your children are seen during public school hours, it may generate questions. If your child is in public without you and your city has a daytime curfew, you will probably encounter difficulties.

Back to REQUIREMENTS

18. What if I work?

Remember that home schools are private schools and there is no requirement for hours or the time when education must take place. The only requirement is that a written curriculum covering the basic areas must be pursued in a bona fide (not a sham) manner. Consequently, one could work and teach his child as well. While this is difficult and takes some discipline, it is certainly possible and legal.

Back to REQUIREMENTS

19. May someone else homeschool my child?

Yes. Home schools in Texas have been determined by the Texas Supreme Court to be private schools. Private schools are not regulated by the state of Texas. There are no requirements such as teacher certification or curriculum approval. The ruling of the Leeper case states that a parent "or one standing in parental authority" may educate a child. However, if a person is teaching more than three students outside her family, the teacher may encounter problems with local zoning ordinances, and the state will require that the teacher be licensed for child care.

Back to REQUIREMENTS

20. What is required for graduation?

Home schools in Texas are private schools and not regulated by the state; therefore home schools, just as with other private schools, set their own graduation standards. There is no minimum age requirement for graduation.

Back to GRADUATION

21. How can my child receive a diploma?

When a student meets the requirements set by his school for graduation (See question #20.), he may receive a diploma. Diplomas may be ordered from the Texas Home School Coalition Association and other sources.

Back to GRADUATION

22. Can my home educated students get into college?

There is no reason that a student with a diploma from a home school in Texas could not go to college. Some colleges and universities are more friendly toward home schoolers than others, so some will be easier to work with. (Click here for more information.)

Back to GRADUATION

23. Since my children do not attend public school, do we get a tax break on our school property tax?

Home school families, like all families in Texas who own property, must pay local property taxes. Property owners who have no children are also required by law to pay property taxes to support public schools, in spite of the fact that they do not take advantage of the programs offered by the public schools.

Back to TAXES/GOVERNMENT BENEFITS

24. Can our family continue to receive public assistance if we homeschool?

The Texas Department of Human Services (TDHS) offers limited benefits to families requiring public assistance. In the past, home educated students and home educated minor parents have been denied benefits because of their home school status. The Texas Department of Human Services has no legal basis for denying applicants solely because they choose to homeschool.

Within the Texas Works Handbook, the operations manual for TDHS, under section 1600-A, 1610 Eligibility Requirements, the agency clearly states, “A child or teen parent who is homeschooled is attending school. Accept the parent’s statement that the child attends school at home.”

If you have trouble claiming benefits from state or federal agencies because of your home school status, you may call the THSC Association at (806) 744-4441.

Home school/Law school~A walk in the park.....
http://www.thsc.org/FAQ/default.asp#1

Replies:

* CCISD Bond elections~ Hedge funds, inflation and no negotiations...Law schoolm or lock up ville..... - By d1 January 11, 2008 at 05:10:57 AM

CCISD Bond elections~ Hedge funds, inflation and no negotiations...Law schoolm or lock up ville.....
Posted on January 11, 2008 at 05:10:57 AM by d1

What would the founding fathers say about your "hands on" participation of the incarceration of juveniles without "Due Process" and without heeding the 6th Amendment's "right to Counsel"?

I know y'all were ignorant, right?

Ignorance is not a defense, right Hank Nuss?

Take that to the Bank! I am not picky Take your pick but Frost.

o Re(1): CCISD Bond elections~ Hedge funds, inflation and no negotiations...Law schoolm or lock up vil - By D1 January 13, 2008 at 07:04:06 AM

Re(1): CCISD Bond elections~ Hedge funds, inflation and no negotiations...Law schoolm or lock up vil
Posted on January 13, 2008 at 07:04:06 AM by D1

Sec. 301.069. PARTNERSHIP WITH BUSINESS COMMUNITY. To meet the needs of businesses in this state and to equip workers and job seekers with the skills required to compete for jobs in this state, the commission shall:
(1) partner with the business community to:
(A) identify:
(i) skills required by the business community;
(ii) key industry sectors in the business community that are likely to benefit from skill development services and programs offered by the commission; and
(iii) employment opportunities offered by the business community; and
(B) develop services and programs that are designed to equip workers and job seekers with the skills required by the business community; and
(2) support business and community economic development activities of local workforce development boards and the state.
Added by Acts 2003, 78th Leg., ch. 817, Sec. 3.07, eff. Sept. 1, 2003.

P.I.C. they call it~right or DKC?
http://www.speaktruth.org/

teach it.....

e(1): Far to go EB~you have far to go..........
Posted on January 17, 2008 at 12:28:25 PM by Elwood Blues

"D1: "Are you serious? This from a self confessed minion duped by B.A.C.A.L.A.?"

Excuse me,duhh-noyted,but where did I ever "confess" to being anyone's "minion"? Did I not tell you I'm not a member of BACALA,and haven't been for several years? They were a wothwhile orgainzation a few years back,but now,they're just shills for the Republican party,and I can't be a member of,nor support any organization that supports either political party since it's my core belief that both parties are equally worthless.

"You actually believed their bull for how long?"

..until they started associating political affiliation with lawsuit reform.That's when I walked away and never looked back.Tort reform isn't a political football to be kicked back and forth by self serving political demagogues..it drives up insurance rates,thereby crippling small businesses.It also drives professionals like doctors out of town because they can't afford the sky high insurance costs..and as a result,leads to a "lottery mentality" among many people here who hope that they can sue somebody and get rich quick.Why do you think it is that trial lawyers bombard the airwaves with TV ads in this town?..because Nueces County jurors are notorious for handing out big money judgments in civil cases,and these ambulance chasers know there's big money to be made in suing people.

"Was it because the were all white?"

People of all races and creeds (including hispanics) were members of BACALA,genius.. until they morphed into being a mouthpiece for the Republican party..then many..including myself..left the organization.Nice try,dullard,but no cigar.

"If a red,blue,yellow,black or white person asked for El Defenzor's help,even a Greene person will never know unless they asked".

And if a "red,blue,yellow,black or white person" came to this board first without knowing anything about El Defenzor or Homer Villarreal,and what they're really all about..and just read the countless posts where you've either posted song lyrics or babbled on incoherently across every thread,they'd think this board is inhabited by crack addicts and post-lobotomy patients.

"To cite color as the basis for internet advocacy on behalf of anyone shows the lack of your participation in "humanitarian activity" that is foremost in this Corpus Christi grand scheme of drama called "LIFE"!"

My bad..maybe I should just post song lyrics or rattle on mindlessly about WIA,modified JOB opportunities,KFATSO,DINOs,or any number of the thousands of konspiracies you two uncover on a daily basis.

Don't lecture me on internet advocacy,clueless one..not when you two have come out for some of the scumbags and mental midgets you have.In my world,someone who pretends to be a lawyer and a police officer when he's neither is a criminal and should face prosecution no matter what color his skin is,what his last name is,what political party he belongs to,or what politicians he throws truckloads of cash at..

..that's the difference between you and I..I call a spade a spade..you post Wyclef Jean song lyrics and scream about konspiracies.

Replies:

* EB, On this issue your rhetoric is the definition of.... - By Jaime Kenedeno January 17, 2008 at 02:36:17 PM

# "Fight the Good Fight ......I am counting on you" - By d1 January 15, 2008 at 05:03:50 AM

* How can London ISD . . . - By ChiChi Grande January 16, 2008 at 01:12:24 PM
o Ortiz Selects Denise Blanchard as Chief of Staff - By Jaime Kenedeno January 17, 2008 at 03:05:39 AM

The Info C.C.I.S.D. does not put in the Parents ~School Handbook~Y?

2008-01-10T00:37:00.000-08:00

general dwi law
general dwi law
driver's license suspension
driver's license suspension
minors using alcohol
minors using alcohol

state
state
federal
federal
juvenile
juvenile
dwi
dwi
on-line solicitation
on-line solicitation

2828 N. Harwood, Suite 1950
Dallas, TX. 75201
Dallas Ph: (214) 651-1121
Ft.Worth Ph: (817) 460-LAWS
Email: JudgeFinn@DavidFinn.com

dallas criminal lawyer
texas criminal defense attorney
dallas texas criminal attorney
dallas texas criminal attorney

Practice Areas

TEXAS JUVENILE LAW

In Texas, juveniles are defined as minors, older than 10 years of age and under the age of 17. Juveniles are treated differently than adult offenders and the general goal of the juvenile system is rehabilitation as opposed to punishment. However, the penalties in the juvenile system can still be severe. Some offenses, such as truancy and breaking curfew, are unique to juveniles, and would not be illegal if the accused were an adult. The juvenile justice system generally moves much more quickly than does the adult criminal justice system. Don't wait to hire a good juvenile defense lawyer to represent your child. Call Attorney David Finn at: 214-651-1121.

There are separate courts and rules that govern the juvenile process. The juvenile court system will generally make every effort to rehabilitate the child rather than simply incarcerate him. Only in extreme cases, such as serious felonies, usually involving allegations of violence or the use of a deadly weapon, will a juvenile be tried as an adult. The juvenile courts may hold a hearing to determine whether to transfer the juvenile to the adult court system. This is called a "transfer hearing." The court will base its decision to transfer on the following factors:

1. The seriousness of the offense
2. The child's criminal sophistication
3. Previous criminal record
4. Previous attempts to rehabilitate the juvenile offender
5. The court's belief that future attempts at rehabilitation will be unsuccessful

While many of the laws governing juveniles may differ from the adult system, the rights that juveniles enjoy are virtually identical to those enjoyed by adults.

1. A juvenile must be read his Miranda rights if placed under arrest.
2. A juvenile has the right to have an attorney present during interrogation.
3. A juvenile has the right to know the specific charges being brought by the State.
4. A juvenile has rights against self-incrimination.
5. A juvenile has the right to confront his accuser and examine witnesses.
6. A juvenile has the right to appeal the court's decision.
7. A juvenile does have the right to a jury trial during the adjudication phase

If a juvenile finds herself in a situation involving the police or other law enforcement, please remember the following information:

1. You do not have to submit to a search unless you have been placed under arrest.

If you are asked to give permission to search you should politely but firmly decline. If the police say they have a search warrant, ask to see it.

2. Do not resist arrest.
3. Do not volunteer information or answer questions without your attorney present.
4. Provide only your name, address, and phone number.
5. Call your parents as soon as possible.
6. Insist that your parents and an attorney be present during questioning.
7. Do not discuss your case with anyone other than your attorney.

Do not discuss your case with your friends or classmates.

Finally, do not attempt to represent yourself in court. Hire an experienced criminal defense attorney, preferably one who is board-certified in criminal law.

Texas Juvenile Justice: Overview

Taking Into Custody; Issuance of Warning Notice: Texas Family Code Section 52.01

A child may be taken into custody: pursuant to an order of the juvenile court; pursuant to the Texas laws for arrest; by a law enforcement officer if there is probable cause to believe that the child has engaged in conduct that violates the penal laws of Texas or any political subdivision or delinquent conduct or conduct indicating a need for supervision. It is the duty of the law enforcement officer who has taken a child into custody to transport the child to the appropriate detention facility if the child is not released to the parent, guardian, or custodian of the child. If the juvenile detention facility is located outside the county in which the child is taken into custody, it shall be the duty of the law enforcement officer who has taken the child into custody or, if authorized by the commissioners court of the county, the sheriff of that county, to transport the child to the appropriate juvenile detention facility unless the child is released to the parent, guardian, or custodian of the child.

Delinquent Conduct: Conduct Indicating a Need for Supervision:

Texas Family Code Section 51.03

(a) Delinquent conduct is defined as:

1. conduct, other than a traffic offense, that violates a penal law of Texas or of the United States punishable by imprisonment or by confinement in jail;
2. conduct that violates a lawful order of a municipal court or justice court under circumstances that would constitute contempt of that court;
3. conduct that constitutes: Driving While Intoxicated (DWI), Flying While Intoxicated, Boating While Intoxicated, Intoxication Assault, Intoxication Manslaughter, and Driving Under the Influence of Alcohol by a minor (DUI).

(b) Conduct indicating a need for supervision includes:

1. conduct, other than a traffic offense, that violates the penal laws of Texas of the grade of misdemeanor that are punishable by a fine only (class c-misdemeanors); the penal ordinances of any political subdivision of Texas; the absence of a child on 10 or more days or parts of days within a 6 month period in the same school year or on 3 or more days or parts of days within a 4 week period from school; the voluntary absence of a child from the child's home without the consent of the child's parents or guardian for a substantial length of time or without intent to return; conduct prohibited by city ordinance or by state law involving the inhalation of the fumes or vapors of paint; or an act that violates a school district's previously communicated written standards of student conduct for which the child has been expelled under Section 37.007(c), Texas Education Code.

Release from Detention: Texas Family Code Section 53.02

(a) If a child is brought before the court or delivered to a detention facility, the intake or other authorized officer of the court shall immediately make an investigation and shall release the child unless it appears that his detention is warranted under subsection (b), below.

The release may be conditioned upon requirements reasonably necessary to insure the child's appearance at later proceedings, but the conditions of the release must be in writing and filed with the office or official designated by the court and a copy furnished to the child.

(b) A child taken into custody may be detained prior to hearing on the petition only if:

1. the child is likely to abscond or be removed from the court's jurisdiction;
2. suitable supervision, care, or protection for the child is not being provided by a parent, guardian, custodian, or other person;
3. the child has no parent, guardian, custodian, or other person able to return the child to the court when required;
4. the child may be dangerous to himself or herself or the child may threaten the safety of the public if released;
5. the child has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released; or
6. the child's detention is required under subsection (f), below.

(c) If the child is not released, a request for detention hearing shall be made and promptly presented to the court, and an informal detention hearing shall be held promptly, but not later than the second working day after the child is taken into custody. If the child is taken into custody on a Friday or Saturday, then the detention hearing shall be held on the first working day after the child is taken into custody.

(d) A release of a child to an adult must be conditioned on the agreement of the adult to be subject to the jurisdiction of the juvenile court and to an order of contempt by the court if the adult, after notification, is unable to produce the child at later proceedings.

(e) If a child being released under this section is expelled from school in a county with a population greater than 125,000, the release shall be conditioned on the child's attending a juvenile justice alternative education program pending a deferred prosecution or formal court disposition of the child's case.

(f) A child who is alleged to have engaged in delinquent conduct and to have used, possessed, or exhibited a firearm in the commission of the offense shall be detained until the child is released at the direction of the judge of the juvenile court, a substitute judge, or a referee appointed, including an oral direction by telephone, or until a detention hearing is held.

Detention Hearing: Texas Family Code Section 54.01

(a) Generally speaking, a detention hearing without a jury shall be held promptly, but not later than the second working day after the child is taken into custody; provided, however, that when a child is detained on a Friday or Saturday, then such detention hearing shall be held on the first working day after the child is taken into custody.

(b) Reasonable notice of the detention hearing, either oral or written, shall be given, stating the time, place, and purpose of the hearing. Notice shall be given to the child and, if they can be found, to his parents, guardian, or custodian. Prior to the beginning of the hearing, the court shall inform the parties of the child's right to counsel and to appointed counsel if they are indigent and of the child's right to remain silent with respect to any allegations of delinquent conduct or conduct indicating a need for supervision.

(c) At the detention hearing, the court may consider written reports from probation officers, professional court employees, or by professional consultants in addition to the testimony of witnesses. Prior to the detention hearing, the court shall provide the attorney for the child with access to all written matter to be considered by the court in making the detention decision. The court may order counsel not to reveal items to the child or his parents if such disclosure would materially harm the treatment and rehabilitation of the child or would substantially decrease the likelihood of receiving information from the same or similar sources in the future.

(d) A detention hearing may be held without the presence of the child's parents if the court has been unable to locate them. If no parent or guardian is present, the court shall appoint counsel or a guardian ad litem for the child.

(e) At the conclusion of the hearing the court shall order the child released from detention unless it appears that he is likely to abscond, suitable supervision is not being provided to the child, he has no parent or guardian able to return the child to court when required, he may be dangerous to himself or others, or he has previously been found to be a delinquent child or has been previously convicted of a penal offense higher than a Class C misdemeanor and is likely to commit an offense if released. If the judge concludes that the child should be detained, the detention order extends for no more than 10 working days. Further detention orders may be made following subsequent detention hearings. The initial detention hearing may not be waived, but subsequent detention hearing may be waived.

Note: No statement made by the child at the detention hearing shall be admissible against the child at any other hearing.

Preliminary Investigation & Determinations; Notice to Parents:

Texas Family Code Section 53.01

On referral of a child, the intake officer, probation officer, or other person authorized by the court shall conduct a preliminary investigation to determine whether the person referred is a child and whether there is probable cause to believe that the child engaged in delinquent conduct or conduct indicating a need for supervision. If it is determined that the person is not a child or there is no probable cause, the person shall immediately be released. The child's parents are to promptly receive notice of the whereabouts of the child and also a statement explaining why the child was taken into custody. If the child is alleged to have engaged in delinquent conduct of the grade of felony, or conduct constituting a misdemeanor offense involving violence to a person or the use or possession of a firearm, illegal knife, or club, then the case is immediately forwarded to the office of the prosecuting attorney.

Summons: Texas Family Code Section 53.06

The juvenile court shall direct issuance of a summons to the child named in the petition, the child's parents, guardian, or custodian, the child's guardian ad litem, and any other person who appears to the court to be a proper or necessary party to the proceeding. A party, other than the child, may waive service of summons by written stipulation or by voluntary appearance at the hearing.

Service of Summons: Texas Family Code Section 53.07

If a person to be served with a summons is in Texas and can be found, the summons shall be served upon him personally at least 2 days before the adjudication hearing. If he is in Texas but cannot be found, but his address is known or can be ascertained, the summons may be served on him by mailing a copy by registered or certified mail, return receipt requested, at least 5 days before the day of the hearing. If he is outside Texas but can be found or his address is known, service of the summons may be made either by delivering a copy to him personally or mailing a copy to him by registered mail, return receipt requested, at least 5 days before the day of the adjudication hearing.

Attendance at Hearing: Parent or Other Guardian: Texas Family Code Section 51.115

Parents or guardians of a child are required by law to attend each court hearing affecting a child held under: possible transfer to criminal district/adult court; adjudication hearing; disposition hearing; hearing to modify disposition; release or transfer hearing. If a parent or guardian receives notice of any of these proceedings and is a resident of Texas, failure to appear could result in a fine for contempt of court.

Photographs & Fingerprints of Children: Texas Family Code Sections 58.002-0021

With limited exceptions, a child may not be photographed or fingerprinted without the consent of the juvenile court unless the child is taken into custody or referred to the juvenile court for conduct that constitutes a felony or a misdemeanor punishable by confinement in jail (which means a Class A or Class B misdemeanor). However, this prohibition does not prohibit law enforcement from photographing or fingerprinting a child who is not in custody if the child's parent or guardian voluntarily consents in writing. Furthermore, this prohibition does not apply to fingerprints that are required or authorized to be submitted or obtained for an application for a driver's license or personal identification card.

Note/Exception to General Rule stated above: Law enforcement may take temporary custody of a child to take the child's fingerprints if the officer: has probable cause to believe that the child has engaged in delinquent conduct; the officer has investigated that conduct and found other fingerprints during the investigation; and the officer has probable cause to believe that the child's fingerprints will match the other fingerprints. Law enforcement may take temporary custody of a child to take the child's photograph if the officer: has probable cause to believe that the child has engaged in delinquent conduct; and the officer has probable cause to believe that the child's photograph will be of material assistance in the investigation of the conduct. However, in either instance, unless the child then placed under arrest, the child must be released from temporary custody as soon as the fingerprints or photographs are obtained.

Waiver of Rights: Texas Family Code Section 51.09

Unless a contrary intent clearly appears elsewhere in the Family Code, any right granted to a child by this Section or by the constitution or laws of Texas or the United States may be waived in proceedings under this section if:

1. the waiver is made by the child and the attorney for the child;
2. the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
3. the waiver is voluntary; and
4. the waiver is made in writing or in court proceedings that are recorded.

Polygraph Examination: Texas Family Code Section 51.151

If a child is taken into custody pursuant to an order of the juvenile court or pursuant to the laws of arrest by a law enforcement officer, a person may not administer a polygraph examination to the child without the consent of the child's attorney or the juvenile court unless the child is transferred to a criminal district court for prosecution in the adult system. Bottom line: Do not consent to a polygraph examination without consulting with your lawyer.

Physical or Mental Examination: Texas Family Code Section 51.20

(a) At any stage of the proceedings the juvenile court may order a child who is referred to the juvenile court or who is alleged by a petition or found to have engaged in delinquent conduct or conduct indicating a need for supervision to be examined by the local mental health or mental retardation authority or another appropriate expert, including a physician, psychiatrist, or psychologist.

(b) If, after conducting an examination of a child and reviewing any other relevant information, there is reason to believe that the child has a mental illness or mental retardation, the probation department shall refer the child to the local mental health or mental retardation authority for evaluation and services, unless the prosecutor has filed a court petition against the child alleging delinquent conduct or conduct indicating a need for supervision.

Election Between Juvenile Court & Alternate Juvenile Court:

Texas Family Code Section 51.18

(a) This section applies only to a child who has a right to a trial before a juvenile court the judge of which is not an attorney licensed to practice in Texas.

(b) On any matter that may lead to an order appealable under Section 56.01 of the Family Code, a child may be tried before either the juvenile court or the alternate juvenile court.

(c) The child may elect to be tried before the alternate juvenile court only if the child files a written notice with that court not later than 10 days before the date of the trial. After the notice is filed, the child may be tried only in the alternate juvenile court. If the child does not file a notice as provided by this section, the child may be tried only in the juvenile court.

(d) If the child is tried before the juvenile court, the child is not entitled to a trial de novo before the alternate juvenile court.

Transfer/Waiver: Texas Family Code Section 54.02

The juvenile court may waive its exclusive original jurisdiction and transfer a child to the appropriate criminal district court to be tried as an adult if the child is alleged to have violated a penal law of the grade of felony if the child was 14 years of age or older at the time he is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree; or 15 years of age or older at the time the child is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony.

The juvenile court judge is not required to certify a child to stand trial as an adult. It's a judgment call. The juvenile court judge will investigate the matter and hold a hearing on the transfer request. The judge orders a complete diagnostic study, social evaluation, and a full investigation of the child, his circumstances, and the circumstances of the alleged offense. At the transfer hearing the court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. In making her decision whether to transfer the case to the adult court, the judge considers: (1) whether the alleged offense was against person or property, with greater weight in favor of transfer given to offenses against a person; (2) the sophistication and maturity of the child; (3) the record and previous history of the child; and (4) the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by use or procedures, services, and facilities currently available to the juvenile court.

Determinate Sentencing: Texas Family Code Section 53.045

If a child is accused of a very serious criminal violation, or habitual felony conduct (see section below), the prosecutor can pursue what is called determinate sentencing. In order to pursue determinate sentencing the prosecutor files a petition with the grand jury, basically asking the grand jury to grant the prosecutor's request to pursue determinate sentencing if the child is convicted. If 9 members of the grand jury approve the petition, then determinate sentencing becomes a viable sentencing option for the judge/jury if the child is convicted of the offense. Determinate sentencing doesn't mean that the child will be tried as an adult in a criminal district court. The case remains in the juvenile court even if the grand jury grants the request for determinate sentencing. but the stakes for the child are raised dramatically if the grand jury grants the prosecutor's petition for determinate sentencing.

Eligibility: The prosecutor can pursue determinate sentencing if the child is charged with habitual felony conduct, or if the child is charged with any of the following offenses:

capital murder, murder, manslaughter, aggravated kidnapping, sexual assault, aggravated sexual assault, aggravated assault, aggravated robbery, injury to a child, elderly, or disabled individual if punishable as a felony other than a state jail felony, felony deadly conduct involving the discharge of a firearm, aggravated controlled substance felony, criminal solicitation of a minor, indecency with a child, arson, if bodily injury or death is suffered by any person by reason of the commission of the arson, intoxication manslaughter, or attempted murder or attempted capital murder. If your child is charged with one of the offenses listed above, she is eligible for determinate sentencing even if this is her first offense.

Impact: If the grand jury grants the prosecutor's request to impose determinate sentencing, and the child is convicted of habitual felony conduct or any of the offenses listed above, then the court or jury may sentence the child to commitment in the Texas Youth Commission with a possible transfer to the institutional division of the Texas Department of Criminal Justice (adult prison system) for a term of: up to 40 years if the conduct constitutes a capital felony, first-degree felony, or an aggravated controlled substance felony; up to 20 years if the conduct constitutes a second-degree felony; and up to 10 years if the conduct constitutes a third-degree felony. So instead of being sent to the Texas Youth Commission until the child turns 18, determinate sentencing would allow the child to be sentenced to up to 40 years in the adult prison system by a judge or jury.

Habitual Felony Conduct: Texas Family Code Section 51.031

(a) Habitual felony conduct is conduct violating a penal law of the grade of felony, other than a state jail felony, if:

1. the child who engaged in the conduct has at least 2 previous final adjudications as having engaged in delinquent conduct violating a penal law of the grade of felony; and,
2. the second previous final adjudication is for conduct that occurred after the date the first previous adjudication became final; and,
3. all appeals relating to the previous adjudications have been exhausted.

Review by Prosecutor: Texas Family Code Section 53.012

The prosecuting attorney shall promptly review the circumstances and allegations of a referral made to her for legal sufficiency and the desirability of prosecution and may file a petition without regard to whether probable cause was found during the court's preliminary investigation.

If the prosecutor does not file a petition requesting the adjudication of the child referred to the prosecutor, the prosecutor must terminate all proceedings, if the reason is for the lack of probable cause; or return the referral to the juvenile probation department for further proceedings.

The prosecutors have considerable discretion and control over your child's case.

Deferred Prosecution: Texas Family Code Section 53.03

(a) Subject to subsections (e) and (g) below, if the preliminary investigation results in a determination that further proceedings in the case are authorized, the probation officer or other designated officer of the court, subject to the direction of the juvenile court, may advise the parties for a reasonable period of time not to exceed 6 months concerning deferred prosecution and rehabilitation of a child if:

1. deferred prosecution would be in the best interest of the public and child;
2. the child and her parent, guardian, or custodian consent with knowledge that consent is not obligatory; and
3. the child and his parent, guardian, or custodian are informed that they may terminate the deferred prosecution at any point and petition the court for a court hearing in the case.

(b) Except as otherwise permitted, the child may not be detained during or as a result of the deferred prosecution process.

(c) An incriminating statement made by a participant to the person giving advice and in the discussion or conferences incident thereto may not be used against the declarant in any court hearing.

(d) The court may adopt a fee schedule for deferred prosecution services. The maximum fee is $15 per month.

(e) The prosecuting attorney may defer prosecution for any child. A probation officer or other designated officer of the court may defer prosecution for a child who has previously been adjudicated for conduct that constitutes a felony only if the prosecuting attorney consents in writing.

(f) The probation officer or other officer supervising a program of deferred prosecution for a child shall report to the juvenile court any violation by the child of the program.

(g) Prosecution may not be deferred for a child alleged to have engaged in conduct that constitutes: driving/flying/boating while intoxicated, intoxication assault, intoxication manslaughter, or that constitutes a third or subsequent offense of consumption of alcohol by a minor or driving under the influence of alcohol (DUI) of a minor.

First Offender Program: Texas Family Code Section 52.031

A juvenile board may establish a first offender program for the referral and disposition of children taken into custody for: (1) conduct indicating a need for supervision; or (2) delinquent conduct other than conduct that constitutes a felony of the first, second, or third degree, an aggravated controlled substance felony, or a capital felony; or a state jail felony or misdemeanor involving violence to a person or the use or possession of a firearm, illegal knife, or club, or a prohibited weapon, as described by Section 46.05, Texas Penal Code. If the child has previously been adjudicated as having engaged in delinquent conduct he may be ineligible for the First Offender Program. Also, the child's parents or guardian must receive notice that the child has been referred for disposition under the First Offender Program.

Teen Court Program: Texas Family Code Section 54.032

A juvenile court may defer adjudication proceedings during an adjudication hearing for not more than 180 days if the child:

(1) is alleged to have engaged in conduct indicating a need for supervision that violated a penal law of Texas of the grade of misdemeanor that is punishable by a fine only or a penal ordinance of a political subdivision of Texas;

(2) waives the privilege against self-incrimination and testifies under oath that the allegations are true;

(3) presents to the court an oral or written request to attend a teen court program; and

(4) has not successfully completed a teen court program for the violation of the same penal law or ordinance in the two years preceding the date that the alleged conduct occurred.

Note: The teen court program must be approved by the court.

Adjudication Hearing: Texas Family Code Section 54.03

This is what is commonly referred to as the "guilty-not guilty" phase of a trial. A child may be found to have engaged in delinquent conduct or conduct indicating a need for supervision only after an adjudication hearing. The child is presumed innocent unless and until the prosecution proves that the child is guilty of the charge beyond a reasonable doubt. The burden of proof is on the state. The verdict must be unanimous.

At the beginning of an adjudication hearing the juvenile court judge shall explain to the child and his parent, guardian, or guardian ad litem: the allegations made against the child; the nature and possible consequences of the proceedings; the child's privilege against self-incrimination; the child's right to trial and to confront witnesses; the child's right to representation by an attorney if he is not already represented; and the child's right to a trial by jury.

Only material, relevant, and competent evidence in accordance with the Texas Rules of Criminal Evidence may be considered in an adjudication hearing. Hearsay testimony is generally not admissible. A statement made by the child out of court is insufficient to support a finding of delinquent conduct or conduct indicating a need for supervision unless it is corroborated in whole or in part by other evidence. An adjudication of delinquent conduct or conduct indicating a need for supervision cannot be had upon testimony of an accomplice unless corroborated by other evidence tending to connect the child with the alleged delinquent conduct or conduct indicating a need for supervision; and the corroboration is not sufficient if it merely shows the commission of the alleged conduct. Finally, evidence illegally seized or obtained is inadmissible in an adjudication hearing.

A child may be found guilty of committing a lesser-included offense of the offense charged.

If the judge or jury finds that the child did engage in delinquent conduct or conduct indicating a need for supervision, then the court or jury shall state which of the allegations in the petition were found to be established by the evidence. The court will then set a date and time for the disposition hearing.

If the judge or jury finds that the child did not engage in delinquent conduct or conduct indicating a need for supervision, the court shall dismiss the case with prejudice.

Disposition Hearing: Texas Family Code Section 54.04

This term can be confusing. What we're talking about here is the "sentencing" phase of the proceedings. The disposition hearing only comes into play if the child has been found guilty of the delinquent conduct or criminal activity alleged in the petition. If the child is found not guilty of all allegations during the adjudication hearing then there is no disposition hearing.

The disposition hearing is separate, distinct, and subsequent to the adjudication hearing. There is no right to a jury at the disposition hearing unless the child is in jeopardy of a determinate sentence as approved by the grand jury. If the child is eligible for determinate sentencing, then the child is entitled to a jury of 12 persons to determine the sentence.

At the disposition hearing, the juvenile court may consider written reports from probation officers, professional court employees, or professional consultants in addition to the testimony of witnesses. Prior to the disposition hearing, the child's lawyer is to have received all written matter to be considered in disposition. No disposition may be made unless the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made. No disposition placing the child on probation outside the child's home may be made under this section unless the court or jury finds that the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation. If the judge or jury grant probation, the court will attach various conditions of the probation. Depending on the nature of the charges and the child's criminal history, if probation is not granted, the child could be sentenced to a term of confinement in the Texas Youth Commission.

Payment of Probation Fees: Texas Family Code Section 54.061

If a child is placed on probation, the juvenile court, after giving the child, parent, or other person responsible for the child's support, a reasonable opportunity to be heard, shall order the child, parent, or other person, if financially able to do so, to pay to the court a fee of not more than $15 a month during the period that the child continues on probation. If the court finds that a child, parent, or other person responsible for the child's support is financially unable to pay the probation fee, the court shall enter into the records of the child's case a statement of that finding.

Monitoring School Attendance: Texas Family Code Section 54.043

If the court places a child on probation and requires as a condition of probation that the child attend school, the probation officer shall monitor the child's school attendance and report to the court if the child is voluntarily absent from school.

Restitution: Texas Family Code Section 54.048

A juvenile court, in a disposition hearing, may order restitution to be made by the child and the child's parents. This applies regardless of whether the petition in the case contains a plea for restitution.

Admission of Unadjudicated Conduct: Section 54.045

During a disposition hearing, a child may admit having engaged in delinquent conduct or conduct indicating a need for supervision for which the child has not been adjudicated and request the court to take the admitted conduct into account in the disposition of the child's pending case. If the prosecutor agrees in writing, then the court may take the admitted conduct into account in the disposition of the child. However, a court may take into account admitted conduct over with exclusive venue lies in another county only if the court obtains the written permission of the prosecuting attorney for that county. A child may not be adjudicated by any court for having engaged in conduct taken into account under this section unless the conduct taken into account included conduct that took place in another county and the written permission of the prosecuting attorney of that county was not obtained.

Community Service: Texas Family Code Section 54.044

If the court places a child on probation, the court shall require as a condition of probation that the child work a specified number of hours at a community service project approved by the court and designated by the juvenile probation department. This requirement may be waived if the court finds that the child is physically or mentally incapable of participating in the project or that participating in the project will be a hardship on the child or his family or that the child has shown good cause that community service should not be required.

Note: The court may also order that the child's parent perform community service with the child.

Child Placed on Probation for Conduct Involving a Handgun:

Texas Family Code Section 54.0406

(a) If a court or jury places a child on probation for conduct that violates a penal law that includes as an element of the offense the possession, carrying, using, or exhibiting of a handgun, and if at the adjudication hearing the court or the jury affirmatively finds that the child personally possessed, carried, used, or exhibited a handgun, the court must require as a condition of probation that the child, not later than the 30th day after the date the court places the child on probation, notify the juvenile probation officer who is supervising the child of the manner in which the child acquired the handgun, including the date and place of any person involved in the acquisition. The juvenile probation officer is then to relay any relevant information regarding the handgun to the police. Your lawyer should be with you when this takes place.

Note: Information provided by the child to the juvenile probation officer regarding the acquisition of the handgun and any other information derived from that information may not be used as evidence against the child in any juvenile or criminal proceeding.

Rights of Appeal: Warning: Texas Family Code Section 54.034

Before the court may accept a child's plea or stipulation of evidence in a proceeding under this title, the court must inform the child that if the court accepts the plea or stipulation and the court makes a disposition in accordance with the agreement between the state and the child regarding the disposition of the case, the child may not appeal an order of the court pursuant to an adjudication hearing, a disposition hearing, or a hearing to modify disposition, unless the court gives the child permission to appeal; or the appeal is based on a matter raised by written motion filed before the proceeding in which the child entered the plea or agreed to the stipulation of evidence. An appeal from an order of a juvenile court is to the court of appeals and the case may be carried to the Texas Supreme Court by writ of error or upon certificate, as in civil cases generally. The requirements governing a juvenile appeal are as in civil cases generally.

Note: An appeal does not suspend the order of the juvenile court, nor does it release the child from the custody of that court or of the person, institution, or agency to whose care the child is committed, unless the juvenile court so orders. However, the appellate court may provide for a personal bond pending the appeal.

Sealing Juvenile Records: Texas Family Code Section 58.003

One of the most important things that can be done for a juvenile is to get the juvenile records sealed as soon as allowed by law.

The benefits of sealing a child's juvenile records are immense. Once the records are sealed, information relating to the arrest, detention, prosecution, and conviction, are physically sealed and/or destroyed. This means that the child can start adulthood with a "clean" slate. And it also means that the child is authorized by law to say that he has never been convicted.

Section 58.003 of the Texas Family Code provides that, except for juveniles who received a determinate sentence for engaging in delinquent conduct that violated a penal law such as murder, capital murder, manslaughter, aggravated kidnapping, sexual assault, aggravated sexual assault, aggravated assault, injury to a child/elderly/disabled person, arson, indecency with a child, etc., or engaged in habitual felony conduct, the juvenile records may be sealed if the court finds that 2 years have elapsed since final discharge of the person or since the last official action in the person's case if there was no adjudication; and if since that time the person has not been convicted of a felony or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a need for supervision and no proceeding is pending seeking conviction or adjudication.

A court may also order the sealing of records concerning a juvenile adjudicated as having engaged in delinquent conduct that violated a penal law of the grade of felony (not including many determinate sentences) if: the person is 21 years of age or older; the person was not transferred by a juvenile court to an adult criminal court for prosecution; the records have not been used as evidence in the punishment phase of a criminal proceeding under Article 37.07, Code of Texas Criminal Procedure; and if the person has not been convicted of a penal law of the grade of felony after becoming age 17.

If a child is referred to the juvenile court for conduct constituting any offense and at the adjudication hearing (guilt/innocence) the child is found to be not guilty of each offense alleged, the court shall immediately order the sealing of all files and records relating to the case.

David Finn is board certified in criminal law by the Texas Board of Legal Specialization. Call today for a free initial consultation.

The information contained in this web site is intended to convey general information about David Finn, PC. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet to David Finn, PC using email addresses listed in this web site would not be confidential and would not create an attorney-client relationship.

HOME :: ATTORNEY PROFILE :: IN THE NEWS :: FAQS :: PRACTICE AREAS :: RECENT RESULTS
RIGHT TO COUNSEL :: CONFIDENTIAL :: INTERVIEW :: BOARD CERTIFIED :: EXPUNCTIONS
ORDERS OF NONDISCLOSURE :: FRAUD/SEC CASES :: LIBRARY OF MOTIONS
OFFICE LOCATION :: CONTACT ME :: MY BLOG :: SITE MAP

copyright © 2003 david finn, p.c. all rights reserved.

See I’mma tell you like you told me~Cash Rules everything around me~All you wanna know is (where my money at?)

2007-12-20T01:58:00.000-08:00

CCISD Taxpayers: "Where my money at?"

Thursday, December 20, 2007
Don't act like I never told you~You know how long I've been on you?

"Stronger"

Work it, make it, do it,
Makes us harder, better, faster, stronger!

[played in background, continuously:]
Work it harder, make it better,
do it faster, makes us stronger,
more than ever, never over,
Our work here is never over.

KANYE WEST LYRICS

"Stronger"

Work it, make it, do it,
Makes us harder, better, faster, stronger!

[played in background, continuously:]
Work it harder, make it better,
do it faster, makes us stronger,
more than ever, never over,
Our work here is never over.

[Chorus:]
N- n- now th- that don't kill me
Can only make me stronger
I need you to hurry up now
'cause I can't wait much longer
I know I got to be right now
'cause I can't get much wronger
Man I've been waitin' all night now
That's how long I've been on you

I need you right now
I need you right now

Let's get lost tonight
You could be my black Kate Moss tonight
Play secretary, I'm the boss tonight
And you don't give a fuck what they all say right?
Awesome, the Christian and Christian Dior
Damn, they don't make 'em like this anymore
I ask 'cause I'm not sure
Do anybody make real shit anymore?
Bow in the presence of greatness
'cause right now thou has forsaken us
You should be honored by my lateness
That I would even show up to this fake shit
So go ahead go nuts go ape shit
Especially in my pastel on my bape shit
Act like you can't tell who made this
New gospel homey, take six, and take this, haters

[Chorus]

I need you right now
I need you right now

Me likey

I don't know if you got a man or not,
If you made plans or not
God put me in the plans or not
I'm trippin' this drink got me sayin' a lot
But I know that God put you in front of me

So how the hell could you front on me?
There's a thousand you's, there's only one of me
I'm trippin', I'm caught up in the moment right?
This is Louis Vuitton Don night
So we gonna do everything that Kan like
Heard they'd do anything for a Klondike
Well I'd do anything for a blonde-dike
And she'll do anything for the limelight
And we'll do anything when the time's right
Ugh, baby, you're makin' it (harder, better, faster, stronger)

[Chorus]

I need you right now
I need you right now

You know how long I've been on you?
Since Prince was on Apollonia
Since OJ had Isotoners
Don't act like I never told you [x6]
Baby, you're making it (harder, better, faster, stronger)

[Chorus]

I need you right now [x4]

You know how long I've been on you?
Since Prince was on Apollonia
Since OJ had Isotoners
Don't act like I never told you
Never told you [x4]

Never over [x8]

[Thanks to Fatima for these lyrics]
[Thanks to Anthony Pattinson, steve orchard, tim smith, julie_huang_2cool@hotmail.com, Kellie for correcting these lyrics]

[ www.azlyrics.com ]

Posted by dannoynted1 at 1:43 AM 0 comments Links to this post

Labels: A parley, Bankers life, DAS, Desert Eagle, Gibralter securities, HK, MI%, MI^, SNL Bail out, Tom is A Hawk

Subscribe to: Posts (Atom)

http://b4.boards2go.com/boards/board.cgi?action=read&id=1198143838&user=defensornews

Only under very narrow and unusual circumstances may a minor child's school counseling records )

2007-12-13T23:59:00.000-08:00

Home
About TJPC
Legal & Legislative
Publications
Services
Statistics
Training & Events
Search
Texas Juvenile Probation Commission Header

Click here to skip to text only menus
Attorney General says that a parent has a right to see school counseling recording on his or her child [JC-0538] (02-3-29)
On August 7, 2002, the Texas Attorney General said that under federal and state law a parent has a right to see school counseling records on his or her child, subject to a very narrow exception.

02-3-29. Opinion Attorney General No. JC-0538, 2002 WL 1814029, 2002 Tex.Ag.Lexis ___ (8/7/02) [Texas Juvenile Law (5th Edition 2000)].

Re: Whether a parent has an unrestricted right of access to the school counseling records of his or her minor child (RQ-0506-JC)

Mr. Felipe T. Alanis
Commissioner of Education
Texas Education Agency
1701 North Congress Avenue
Austin, Texas 78701-1494

Dear Mr. Alanis:

Your predecessor in office requested our opinion as to whether a parent has an unrestricted right of access to the school counseling records of his or her minor child. The question arises because of an apparent conflict between section 26.004 of the Education Code, which grants to a parent access "to all written records of a school district concerning the parent's child, " and section 611.0045 of the Health and Safety Code, which authorizes a mental health professional, under certain circumstances, to deny access to a patient's record "if the professional determines that release... would be harmful to the patient's physical, mental, or emotional health." In addition, federal law generally grants to a parent a right of access to all "education records" concerning his or her child. We conclude that only under very narrow and unusual circumstances may such records be withheld from the parent.

Section 26.004 of the Education Code provides, in relevant part:

A parent is entitled to access to all written records of a school district concerning the parent's child, including:

....

(5) counseling records;

(6) psychological records;

....

(9) teacher and counselor evaluations;....

Tex. Educ. Code Ann. § 26.004 (Vernon 1996). This statute requires that a school district provide access to a child's parent of "all written... counseling records." See also Tex. Fam. Code Ann. § 153.073(a)(2) (Vernon 1996) ("Unless limited by court order, a parent appointed as a conservator of a child has at all times the right... of access to medical, dental, psychological, and educational records of the child.").

On the other hand, you suggest that section 611.0045 of the Health and Safety Code may, under particular circumstances, permit a school counselor to deny such records to the parent. That statute provides, in relevant part:

(a) Except as otherwise provided by this section, a patient is entitled to have access to the content of a confidential record made about the patient.

(b) The professional may deny access to any portion of a record if the professional determines that release of that portion would be harmful to the patient's physical, mental, or emotional health.

(c) If the professional denies access to any portion of a record, the professional shall give the patient a signed and dated written statement that having access to the record would be harmful to the patient's physical, mental, or emotional health and shall include a copy of the written statement in the patient's records. The statement must specify the portion of the record to which access is denied, the reason for denial, and the duration of the denial.

....

(e) If a professional denies access to a portion of a confidential record, )

the professional shall allow examination and copying of the record by another professional if the patient selects the professional to treat the patient for the same or a related condition as the professional denying access.

Tex. Health & Safety Code Ann. § 611.0045 (Vernon Supp. 2002). "Professional" is defined as:

(A) a person authorized to practice medicine in any state or nation;

(B) a person licensed or certified by this state to diagnose, evaluate, or treat any mental or emotional condition or disorder; or

(C) a person the patient reasonably believes is authorized, licensed, or certified as provided by this subsection.

Id. § 611.001(2) (Vernon 1992). The term "patient" means "a person who consults or is interviewed by a professional for diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism or drug addiction." Id. § 611.001(1).

Section 611.004 states that "[a] professional may disclose confidential information only... to a person who has the written consent of the patient, or a parent if the patient is a minor." Id. § 611.004(a)(4) (Vernon Supp. 2002). In Abrams v. Jones, 35 S.W.3d 620 (Tex. 2000), the Texas Supreme Court held that, "[b]ecause subsection (b) [of section 611.0045] may limit a patient's rights to his or her own records, subsection (b) can also limit a parent's or third party's right to a patient's records when the third party or parent stands in the patient's stead." Abrams, 35 S.W.3d at 626. Furthermore, "[i]f a professional does deny a parent access to part of a child's records, the parent has recourse under section 611.0045(e).... First, the professional denying access must allow examination and copying of the record by another professional selected by the parent acting on behalf of the patient to treat the patient for the same or a related condition. Second, a parent denied access to a child's records has judicial recourse." Id. (citations omitted) (citing section 611.005(a) which provides that "[a] person aggrieved by the improper disclosure of or failure to disclose confidential communications or records in violation of this chapter may petition the district court of the county in which the person resides for appropriate relief, including injunctive relief"). See Tex. Health & Safety Code Ann. § 611.005 (Vernon Supp. 2002). Thus, on the one hand, section 26.004 of the Education Code grants a parent access to all school "counseling records" regarding his or her child. Tex. Educ. Code Ann. § 26.004 (Vernon 1996). On the other hand, under section 611.0045 of the Health and Safety Code, a "professional" may deny such access if he or she "determines that release... would be harmful to the patient's physical, mental, or emotional health." Tex. Health & Safety Code Ann. § 611.0045 (Vernon Supp. 2002).

Before we attempt to reconcile these statutes, we note that section 611.0045 does not necessarily apply to every individual designated a "school counselor." We must consequently inquire into the nature of that designation.

Chapter 21 of the Education Code creates the State Board for Educator Certification (the "Board"), whose duty it is to "regulate and oversee all aspects of the certification, continuing education, and standards of conduct of public school educators." Tex. Educ. Code Ann. § 21.031 (Vernon 1996). The Board is required to "propose rules that, " inter alia, "specify the classes of educator certificates to be issued, including emergency certificates, " and "specify the requirements for the issuance and renewal of an educator certificate." Id. § 21.041(b)(2), (4). In addition, "[t]he board shall propose rules establishing the training requirements a person must accomplish to obtain a certificate, enter an internship, or enter an induction- year program, " and "shall specify the minimum academic qualifications required for a certificate." Id. § 21.044. Rules adopted by the Board must, in general, be approved by the State Board of Education. Id. § 21.042.

With regard to school counselors, the Board has adopted specific requirements:

These specific requirements are applicable in addition to the undergraduate criteria outlined in Subchapter G of this chapter (relating to Certification Requirements for Classroom Teachers).

(1) The guidance program (at least three semester hours). This area provides an understanding of the principles, philosophy, organization, and )

services of the guidance program.

(2) The pupil served (at least six semester hours). This area is devoted to intensive study that develops an understanding of the physical, intellectual, social, and emotional development of children and youth, and the influences of the school program on development.

(3) Resource areas (at least 21 semester hours).

(A) The preparation program shall help the prospective counselor achieve a balanced program of teacher education by giving attention to related resource areas. The amount of emphasis given to an area shall depend on the student's undergraduate preparation and experience.

(B) These advanced level studies are not necessarily represented by a sequence of semester hour courses. They are planned programs to meet the needs of the individual student. They are intended to ensure professional competence.

(C) Upon completion of the program, the prospective counselor shall have developed skills in guidance techniques that assure an ability to use the instruments of measurement and evaluation necessary for understanding, appraising, and counseling individuals and groups. The student shall be skilled in the use of occupational and educational information and materials appropriate for the guidance of youths. Also, the student shall have developed, through study and supervised practice, an ability to work with groups of youths and adults and to counsel with individuals.

(4) The certificate. The counselor certificate shall require:

(A) a valid provisional or standard teaching certificate; and

(B) three creditable years, as defined in Subchapter Y of this Chapter (relating to Definitions), of classroom teaching experience.

19 Tex. Admin. Code § 230.307 (2001). It is significant, however, that these rules do not require an individual designated a "school counselor" to obtain any other professional license issued by the State of Texas.

Chapter 503 of the Occupations Code applies to a "licensed professional counselor, " which is defined as "a person who holds a license issued under this chapter" and who:

(A) represents the person to the public by any title or description of services incorporating the words "licensed counselor" and offers to provide professional counseling services to any individual, couple, family, group, or other entity for compensation, implying that the person offering the services is licensed and trained, or expert in counseling; or

(B) engages in any practice of counseling.

Tex. Occ. Code Ann. § 503.002(4) (Vernon 2002) (emphasis added). The "practice of professional counseling" is defined as "the application of mental health, psychotherapeutic, and human development principles to:

(1) facilitate human development and adjustment through life;

(2) prevent, assess, evaluate, and treat mental, emotional, or behavioral disorders and associated distresses that interfere with mental health;

(3) conduct assessments and evaluations to establish treatment goals and objectives; and

(4) plan, implement, and evaluate treatment plans using counseling treatment interventions that include:

(A) counseling;

(B) assessment;

(C) consulting; and

(D) referral.

Id. § 503.003(a). Moreover, to qualify for a license under chapter 503 of the Occupations Code, a person must have a master's or doctoral degree in counseling or a related field, complete 36 months or 3,000 hours of supervised experience working in a counseling setting, and meet other rigorous requirements set forth in section 503.302 of the Occupations Code. See id. § 503.302. Although section 503.051 states that "[t]his chapter does not apply to an activity, service, or use of an official title by a person employed as a counselor by a... public or private educational institution if the person is performing counseling or counseling-related activities within the scope of the person's employment, " section 503.059 declares that "[a] person otherwise exempt under this subchapter who obtains a license under this chapter is subject to this chapter to the same extent as any other person licensed under this chapter." Id. §§ 503.051,.059.

It cannot reasonably be argued that a person who is merely certified as a "school counselor" by the State Board for Educator Certification is "a person licensed or certified by this state to diagnose, evaluate, or treat any mental or emotional condition or disorder." If an individual holds both a "school counselor" certification and a license as a "professional counselor, " he or she may be entitled to claim the benefit of section 611.0045 of the Health and Safety Code. If the person holds only a certificate from the Board designating him or her as a "school counselor, " the person is not so entitled.

On the other hand, it seems clear that a "licensed professional counselor" fits within the definition of "professional" for purposes of section 611.001 of the Health and Safety Code, as "a person licensed or certified by this state to diagnose, evaluate, or treat any mental or emotional condition or disorder." Thus, if a person licensed as a "professional counselor" in the State of Texas serves as a "school counselor, " he or she may be entitled, under section 611.0045, to deny access to the parent of a student's counseling records if he or she "determines that release... would be harmful to the [student's] physical, mental, or emotional health."

As to those individuals who are both certified school counselors and licensed "professionals" under chapter 611 of the Health and Safety Code, we must attempt to reconcile section 26.004 of the Education Code, which grants to a parent access to all "written... counseling records, " with subsection 611.0045(b) of the Health and Safety Code, which permits a "professional, " as defined therein, to deny such access. Rules of statutory construction require that statutes be harmonized if there is any reasonable way to do so. See La Sara Grain Co.v.First Nat'l Bank, 673 S.W.2d 558, 565 (Tex. 1984); Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990). In our view, these two seemingly conflicting statutes may be harmonized by construing section 611.0045 as an exception to section 26.004, in the relatively narrow circumstance in which the school counselor also happens to fall within the definition of "professional" in section 611.001 of the Health and Safety Code. The result is that, under Texas law, a parent has an unrestricted access to all written counseling records regarding his or her child, except when the records are those created by a "professional" as defined in section 611.001.

We must also address the Federal Family Educational and Privacy Rights Act of 1974, often referred to as the Buckley Amendment. That statute provides, in relevant part:

(a)(1)(A) No funds shall be made available under any applicable program to any educational agency or institution which has a policy of denying, or which effectively prevents, the parents of students who are or have been in attendance at a school of such agency or at such institution, as the case may be, the right to inspect and review the education records of their children.

20 U.S.C. § 1232g(a)(1)(A) (1994). "Education records" are defined as "those records, files, documents, and other materials which - (i) contain information directly related to a student; and (ii) are maintained by an educational agency or institution or by a person acting for such agency or institution." Id. § 1232g(a)(4)(A). The term does not include, inter alia, "(i) records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute." Id. § 1232g(a)(4)(B). Regulations adopted under this provision have slightly modified this exception:

Education records.

....

(b) The term does not include:

(1) Records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.

34 C.F.R. § 99.3 (2001).

If an educational institution under 20 U.S.C. § 1232g "wishes to continue receiving federal funding, it must permit its students [or parent or guardian if the student is under the age of 18] to inspect and review their education records." Tex. Att'y Gen. ORD-431 (1985) at 2. See also Tex. Att'y Gen. Op. No. JM-154 (1984) (private school may lose federal funds if it fails to accord inspection rights under Family Educational and Privacy Rights Act). Thus, to the extent a school district receives federal funding, the Buckley Amendment is paramount in the matter of parental access to education records of a minor child. It is clear that, under federal law, a public school that receives federal funds may withhold counseling records from a parent of a minor student only if those records "are kept in the sole possession of" the counselor, "are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute" for the counselor. See 34 C.F.R. § 99.3 (2001).

We may now summarize our answer to your question. Generally, all student records are available to parents. Because federal law, to the extent a school district receives federal funding, is paramount in the matter of parental access to education records of a minor child, a public school may withhold counseling records from a parent only if the records are kept in the sole possession of the counselor, are used only as the counselor's personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the counselor. Within this circumscribed category, state law permits the counselor to withhold the records only if the counselor is a "professional, " as defined in section 611.001(2) of the Health and Safety Code, and further, if the counselor "determines that release" of such record "would be harmful to the patient's physical, mental, or emotional health." If the counselor does not fall within the category of licensed professional under section 611.001 of the Health and Safety Code, section 26.004 of the Education Code prevails, and the parent "is entitled to access to all written records" of the school district "concerning the parent's child, including... counseling records."

Finally, we note that section 261.101 of the Family Code provides that "[a] person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter." Tex. Fam. Code Ann. § 261.101(a) (Vernon Supp. 2002). Subsection (b) thereof declares:

If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code. A professional may not delegate to or rely on another person to make the report....

Id. § 261.101(b). "Professional" is defined for purposes of subsection (b) as "an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers." Id. Furthermore, "[t]he requirement to report" under section 261.101 "applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services." Id. § 261.101(c). It is clear that, because any school counselor is necessarily "certified by the state, " the requirements of section 261.101 apply to any school counselor.

SUMMARY

Generally, all student records are available to parents. Only under very narrow and unusual circumstances may a minor child's school counseling records )

be withheld from a parent. Under the Federal Family Educational and Privacy Rights Act, a public school may withhold a minor child's counseling records from a parent only if the records are kept in the sole possession of the counselor, are used only as the counselor's personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the counselor. Within this circumscribed category, state law permits the counselor to withhold a minor child's records only if the counselor is a "professional, " as defined in section 611.001(2) of the Health and Safety Code, and further, if the counselor "determines that release" of such record "would be harmful to the patient's physical, mental, or emotional health." If the counselor does not fall within the category of licensed professional under section 611.001(2) of the Health and Safety Code, section 26.004 of the Education Code prevails, and the parent "is entitled to access to all written records" of the school district "concerning the parent's child, including... counseling records."

Yours very truly,

John Cornyn
Attorney General Of Texas

Howard G. Baldwin, Jr.
First Assistant Attorney General

Nancy Fuller
Deputy Attorney General - General Counsel

Susan Denmon Gusky
Chair
Opinion Committee

Rick Gilpin
Assistant Attorney General
Opinion Committee

Graphic: Star for Texas Flag Banner

[Home] [About TJPC] [Legal & Legislative] [Publications] [Services] [Statistics] [Training & Events] [Search]
Please visit these sites:
Graphic: Link to Texas Online Graphic: Link to TRAIL (Texas Records and Information Locator Service)
Graphic: Link to Texas Homeland Security

Disclaimer / Privacy Policy / Compact with Texans
Want to send questions or comments? Click here for contact information.
Last modified: July 05, 2005 12:53 PM