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In Texas, the role of a custodial parent carries significant responsibilities and rights. Whether you’re going through a divorce, separation, or are already a custodial parent, understanding the legal framework and practical implications of this role is crucial. This comprehensive guide aims to provide clarity on what it means to be a custodial parent in Texas.

What is a Custodial Parent in Texas?

In Texas family law, a custodial parent is typically the parent who has the right to determine the primary residence of the child. This parent is often referred to as the “primary conservator” or the parent with “primary custody.” However, it’s important to note that Texas law favors the term “conservatorship” over “custody.”

Understanding Conservatorship in Texas

Types of Conservatorship

  1. Joint Managing Conservatorship (JMC): This is the most common arrangement in Texas. Both parents share parental rights and duties, but one parent (the custodial parent) usually has the exclusive right to determine the child’s primary residence.
  2. Sole Managing Conservatorship (SMC): In Solo Managing Conservatorship, which is the less common arrangement, one parent has exclusive rights to make major decisions for the child. This is typically ordered when there are concerns about the other parent’s ability to make sound decisions for the child’s welfare.

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Rights and Duties of Conservators

Regardless of the type of conservatorship, both parents typically retain certain rights and duties, including:

  • The right to receive information about the child’s health, education, and welfare
  • The right to consult with the other parent before making decisions concerning the child’s health, education, and welfare
  • The right to access medical, dental, psychological, and educational records
  • The duty to inform the other parent of significant information concerning the child’s health, education, and welfare

Specific Rights and Responsibilities of a Custodial Parent in Texas

As a custodial parent in Texas, you have several key rights and responsibilities:

  1. Determining Primary Residence: You have the right to decide where the child will primarily live, often within a specific geographic area.
  2. Receiving Child Support: You’re typically entitled to receive child support payments from the non-custodial parent.
  3. Making Educational Decisions: You often have the right to make decisions about the child’s education, including choice of schools.
  4. Medical Decisions: You usually have the right to consent to medical, dental, and surgical treatment involving invasive procedures, as well as psychiatric and psychological treatment.
  5. Managing Finances: You may have the right to manage the child’s estate if it’s created by the parent or the parent’s family.
  6. Representing the Child Legally: You have the right to represent the child in legal actions and make other legal decisions.
  7. Consenting to Marriage and Enlistment: You have the right to consent to the child’s marriage or enlistment in the armed forces.

Possession and Access (Visitation)

While you’re the custodial parent, the non-custodial parent typically has rights to possession and access, often governed by a Standard Possession Order (SPO) or an Expanded Standard Possession Order (ESPO).

Standard Possession Order (SPO)

The Standard Possession Order typically provides the non-custodial parent with:

  • 1st, 3rd, and 5th weekends of each month
  • Thursday evenings during the school year
  • Alternating holidays
  • Extended time during summer vacations

Expanded Standard Possession Order (ESPO)

The ESPO provides additional time, including:

  • Longer weekend visits (from school dismissal on Friday to Monday morning)
  • Longer Thursday visits (overnight)

Modifying Custody Arrangements

Circumstances may change, necessitating modifications to the custody arrangement. In Texas, you can request a modification if:

  1. There has been a material and substantial change in circumstances
  2. The current order has become unworkable or inappropriate
  3. The child is at least 12 and expresses a preference to the judge
  4. The custodial parent has voluntarily relinquished primary care and possession for at least six months

Relocation Considerations

As a custodial parent, if you wish to relocate with your child, you must consider:

  1. Any geographic restrictions in your court order;
  2. The potential need to modify the existing order; and
  3. The non-custodial parent’s right to object to the move.

Child Support for Custodial Parents

As a custodial parent, you’re typically entitled to receive child support. In Texas, child support is calculated based on the non-custodial parent’s income and the number of children. The court may also consider:

  • The child’s needs;
  • Each parent’s ability to contribute to the child’s support; and
  • Any special or extraordinary expenses.

Healthcare and Insurance

As a custodial parent, you’re often responsible for making healthcare decisions. However, the court typically orders one parent to provide health insurance for the child. You may be responsible for managing healthcare appointments and ensuring the child receives necessary medical care.

Education Rights and Responsibilities

Your rights and responsibilities regarding your child’s education may include:

  1. Choosing the school your child attends;
  2. Accessing educational records;
  3. Attending school activities; and
  4. Making decisions about special education services if needed.

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Dealing with Violations of Court Orders

If the non-custodial parent violates the custody order or fails to pay child support, you have legal recourse. Options may include:

  1. Filing for enforcement of the order
  2. Requesting wage garnishment for unpaid child support
  3. Seeking modification of the existing order


Understanding Texas Family Code Sections 153.073 and 153.074

Two important sections of the Texas Family Code that custodial parents should be aware of are 153.073 and 153.074. These sections outline the rights and duties of both custodial and non-custodial parents.

Rights of Parents at All Times: Texas Family Code § 153.073

This section outlines the rights that both parents have at all times, regardless of whether they are custodial or non-custodial parents. These rights include:

  • Right to receive information about the child’s health, education, and welfare
  • Right to access medical, dental, psychological, and educational records
  • Right to consult with the child’s physician, dentist, or psychologist
  • Right to consult with school officials concerning the child’s welfare and educational status
  • Right to attend school activities
  • Right to be designated on official records as a person to be notified in case of emergency
  • Right to consent to medical, dental, and surgical treatment during an emergency
  • Right to manage the child’s estate if created by the parent or the parent’s family

As a custodial parent, you must respect the rights of the non-custodial parent, keeping them informed about significant matters concerning the child and allowing them access to important information and events in the child’s life.

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Rights and Duties During Period of Possession: Texas Family Code § 153.074

This section specifies the rights and duties that a parent has during their period of possession of the child. For a custodial parent, these rights are in effect most of the time, but they also apply to the non-custodial parent during their periods of possession:

  • Duty of care, control, protection, and reasonable discipline of the child
  • Duty to support the child, including providing food, clothing, and shelter
  • Right to consent to medical and dental care not involving an invasive procedure
  • Right to direct the moral and religious training of the child

Implications for Custodial Parents

Understanding these sections is crucial for custodial parents because:

  1. Shared Responsibility: Even as the custodial parent, you must recognize that the other parent has ongoing rights and responsibilities towards the child.
  2. Communication: You’re obligated to keep the other parent informed about significant matters in the child’s life.
  3. Cooperation: You need to cooperate with the other parent in allowing them to exercise their rights.
  4. Respecting Boundaries: During the non-custodial parent’s possession time, you should respect their right to make day-to-day decisions for the child.
  5. Legal Compliance: Failing to adhere to these statutory rights could potentially lead to legal consequences or modifications to the custody arrangement.

Conclusion

Being a custodial parent in Texas comes with significant rights and responsibilities. It’s crucial to understand your role and the legal framework surrounding it. While this guide provides a comprehensive overview, each family’s situation is unique. For personalized legal advice tailored to your specific circumstances, it’s advisable to consult with a qualified family law attorney.

Our lawyers make sure that every ending is a new beginning.

At Varghese Summersett, we are committed to protecting the rights of custodial parents. Our experienced attorneys serve clients throughout the Dallas-Fort Worth metroplex, including Dallas, Fort Worth, Southlake, Arlington and surrounding areas. Contact us today at 817-203-2220 for expert guidance on your rights and responsibilities as a custodial parent in Texas.

Varghese Summersett

The Fourth of July is a patriotic holiday celebrating the independence of the United States. It’s a time for Americans to come together with family and friends to enjoy parades, cookouts, fireworks, and other festivities. While it’s a time to commemorate America’s freedom, inevitably, plenty of Texans will jeopardize their own and wind up behind bars.

Here’s a look at common Fourth of July crimes in Texas and the potential legal consequences for those accused.

DWI

1. Driving While Intoxicated

Unfortunately, drunk driving is a common occurrence during the Fourth of July holiday. As a result, law enforcement officers are on high alert for impaired drivers.

In Texas, it’s illegal for a person to operate a vehicle while impaired, either due to alcohol, drugs, or any substance that affects their ability to drive safely. Texas law defines intoxication as having a blood alcohol concentration (BAC) of 0.08 or not having the normal use of mental or physical faculties due to the introduction of a substance into the body.

For first-time offenders, Driving While Intoxicated (DWI) is punishable by up to 180 days in jail and a maximum $2000 fine. The stakes are higher if the impaired driver has a prior, has a child in the car, or if someone is hurt or killed.

DWI Punishments in Texas

Offense Fine Jail Time
First Offense Up to $2,000 3 to 180 days
Second Offense Up to $4,000 30 days to 1 year
Third Offense Up to $10,000 2 to 10 years
BAC = 0.15 Up to $4,000 Up to 1 year
With Child Passenger Up to $10,000 180 days to 2 years
Intoxication Assault Up to $10,000 2 to 10 years
Intoxication Manslaughter Up to $10,000 2 to 20 years

In addition to fines and jail time, DWI convictions in Texas may also come with other consequences, such as driver’s license suspension, mandatory attendance at alcohol education programs, installation of an Ignition Interlock Device (IID), etc.

The Most Common Fourth of July Crimes in Texas

2. Fireworks Violations

In Texas, fireworks are a popular way to celebrate Independence Day. However, not all fireworks are legal in the state, and there are laws and regulations surrounding the use of fireworks. Here’s a look at common fireworks violations:

  • Shooting Fireworks within City Limits: Many Texas cities, including Fort Worth, have ordinances prohibiting the manufacture, storage, sale, handling or use of fireworks within incorporated city limits. Violating city firework ordinances can result in hefty fines. For example:
    • In Fort Worth, possessing fireworks within city limits is punishable by a fine of up to $2,000.
    • In Houston, fines for possessing or using fireworks within city limits range from $500 to $2,000 for each individual firework.
    • In Lubbock, violators could face a fine of up to $1,000 for possessing or shooting fireworks within city limits.
    • In Denton County, violation of fireworks rules may result in a fine of up to $500 per occurrence.
  • Improper Use or Location of Fireworks:  In Texas, it’s illegal to explode or ignite fireworks:
    •  within 600 feet of churches, hospitals, schools, or licensed childcare centers without written authorization;
    • within 100 feet of places storing flammable liquids or gases;
    • within 100 feet of fireworks storage or sales locations; or
    • from a motor vehicle.

Violations can result in a Class C misdemeanor and a fine of up to $500 per occurrence.

  • Possessing Illegal Fireworks: In Texas, it is illegal to possess the following types of fireworks:
    • Sky rockets or “bottle rockets” with:
      • A total propellant charge of less than four grams
      • A casing size of less than five-eighths of an inch for the outside diameter and less than 3-1/2 inches in length
      • An overall length, including stick, of less than 15 inches
  •  Pop rockets with:

    • A propellant casing length of less than five inches
    • An exterior diameter of less than three-fourths of an inch
    • An overall total rocket length of less than 26 inches
  • Any fireworks that fly more than 20 feet into the air or explode, including firecrackers and Roman candles
  • Any fireworks determined not acceptable by the United States Consumer Product Safety Commission

Possession of an illegal firework is generally a Class C misdemeanor, punishable by up to $500. It’s important to note that, while these fireworks are illegal at the state level, many cities and counties have even stricter regulations.

  • Selling or Using Fireworks Without a Permit: In certain areas, a permit may be required to sell or set off fireworks in Texas. A fireworks licensing violation is a Class B misdemeanor, punishable by up to six months in jail and a maximum $2,00 fine. It is important to check with local ordinances and obtain the necessary permits before selling or using fireworks.

The Most Common Fourth of July Crimes in Texas

3. Illegally Discharging a Firearm

Texans love their guns, and it’s not uncommon for people to fire off a few rounds in celebration during the Fourth of July. But in the Lone Star State, it’s illegal to discharge a firearm in the city limits – no matter what day.

Under Texas Penal Code 42.12, it is illegal to recklessly discharge a firearm “inside the corporate limits of a municipality having a population of 100,000 or more.” Discharging a firearm in certain municipalities is a Class A misdemeanor, punishable by up to one year in jail and a $4,000 fine.

If someone is accidentally struck by a bullet from the celebratory gunfire, the crime is much more serious. It can be charged as felony deadly conduct, which is punishable by 2 to 10 years in prison and a maximum $10,000 fine.

The Most Common Fourth of July Crimes in Texas

4. Assault – One of the Most Common Fourth of July Crimes

Assault charges can also spike during Fourth of July celebrations due to the combination of alcohol consumption and large gatherings. Disputes that might normally be resolved peacefully can escalate into physical altercations, leading to assault charges.

Assault is defined under Texas Penal Code 22.01, as intentionally, knowingly, or recklessly causing bodily injury to another person, threatening someone with imminent bodily injury, or making offensive physical contact without the consent of the other person. Depending on the severity of the assault and any previous criminal history, it can be charged as a misdemeanor or felony.

During Fourth of July celebrations, law enforcement officers will be out in full force. It’s important to remain calm and avoid physical altercations during celebrations to prevent potential assault charges.

Arrested During the Fourth of July Holiday?

If you or a loved one was arrested over the Fourth of July Holiday in Fort Worth, Dallas, Southlake or the surrounding areas, it is important to contact an experienced criminal defense attorney as soon as possible. We can help.

Whether you are facing a DWI or a serious felony offense, our team comprises experienced criminal defense attorneys with a proven record of success. Don’t let one mistake jeopardize your freedom and future. Call 817-203-2220 for a free consultation with a seasoned defense attorney.

The Most Common Fourth of July Crimes in Texas

Varghese Summersett

What is Fentanyl Murder?

Fentanyl murder is defined in Texas Penal Code 19.02(b)4 and refers to the criminal charge arising out of the delivery or manufacturing of fentanyl that results in a death. Fentanyl is a synthetic opioid that is fatal even in small doses.

Why Did the Fentanyl Murder Statute Become Law?

The rise of fentanyl-related deaths has been alarming, with the opioid crisis taking a significant toll on communities across the United States, including Texas. Fentanyl is up to 100 times more potent than morphine, and even a small dose can be lethal.

House Bill 6 (HB6) was introduced to address this crisis, and it became law on September 1, 2023. HB6 effectively reclassified fentanyl overdoses as “poisonings” and established the new offense of fentanyl murder.

This legislation aims to curb the growing number of fentanyl-related deaths by holding suppliers and distributors criminally accountable. Yet, as discussed in this article, that worthy goal has given law enforcement a brush that is sometimes used too broadly.

Fentanyl in Texas

Any death from fentanyl use is one death too many. One of the things that HB6 did was implement better record-keeping. Prior to HB6, a fentanyl death would likely be categorized with other drug deaths as a drug overdose. The CDC reported that 5,489 people died in Texas from drug overdoses in 2022.

The newly enacted law in Texas requires medical examiners to specifically record fentanyl deaths, rather than classify them as general drug overdoses. As Texas Governor Greg Abbott has pointed out,  more than 2,000 people died from fentanyl in Texas in 2022, equating to over five deaths per day. He stressed that fentanyl is the leading cause of death for Americans aged 18-45.

According to the Texas Department of State Health Services, the number of fentanyl-related deaths has been on a steep rise. Data indicates that from 2019 to 2021, the number of fentanyl-related deaths in Texas increased by over 400%, highlighting the severity of the crisis.

Fentanyl Deaths in Texas

The Fentanyl Murder Statute – Penal Code 19.02(b)(4)

The fentanyl murder statute is an addition to the murder statute and provides that the offense of murder includes:

knowingly manufactures or delivers a controlled substance included in Penalty Group 1-B under Section 481.1022, Health and Safety Code, in violation of Section 481.1123, Health and Safety Code, and an individual dies as a result of injecting, ingesting, inhaling, or introducing into the individual’s body any amount of the controlled substance manufactured or delivered by the actor, regardless of whether the controlled substance was used by itself or with another substance, including a drug, adulterant, or dilutant.

The Intent Requirement of the Fentanyl Murder Statute

Notice that the intent requirement “knowingly” applies to the manufacture or delivery of fentanyl. It does not apply to the death. In other words, the law does not require that a person intended to kill another or even knew that a death would occur. At a dealer or manufacturer level, that makes sense. The dealer and the manufacturer know what they are dealing is deadly. As we will discuss further in this article, it becomes less clear when this law applies to someone who is neither a manufacturer nor a dealer.

Punishment for Fentanyl Murder

Fentanyl murder is a first-degree felony punishable by 5-99 years or life in prison and up to a $10,000 fine.

First Degree Felony in Texas
First Degree Felony in Texas

A Criticism of the Fentanyl Murder Statute

It is absolutely true that one pill can kill and that we should take fentanyl seriously. It is also true that manufacturers and dealers of fentanyl (or any drug containing or laced with fentanyl) should be held criminally responsible for the deaths they caused.

But fentanyl manufacturers and dealers are not the only people to whom this law applies. The new law doesn’t target just manufacturers and dealers. It targets anyone who manufactures or delivers fentanyl.

Colloquially, when we say dealer, we think about someone who is profiting in some way from the delivery of drugs.

When we use the word “delivery” in criminal law in Texas, as the fentanyl murder statute does here, the law does not distinguish a drug dealer from a person who uses the drug and shares it with a fellow user or addict.

The Health and Safety Code definition is as follows:

“Deliver” means to transfer, actually or constructively, to another a controlled substance, counterfeit substance, or drug paraphernalia, regardless of whether there is an agency relationship. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.

As a result, law enforcement has been going after the seemingly low-hanging fruit of people who share drugs. It’s usually easy to determine who was doing drugs with someone who overdosed. In many instances, that’s the person who calls the police. Far too often, what we see are murder charges filed against these individuals.

As a practical matter, as a defense attorney, the first thing I am looking at is the mental state requirement. Oftentimes, the individual who overdosed on fentanyl believed they had purchased a prescription drug. Fentanyl can be pressed to look like anything – from a multivitamin to any other known narcotic.

The jury’s perspective on drug dealers supplying fentanyl versus drug addicts whose friends overdose during their joint drug use remains uncertain. Generally, jurors are imposing harsh sentences on fentanyl dealers and manufacturers. However, it is yet to be seen if juries will adopt the same stance toward two individuals who used drugs together, neither of whom sold to others when one dies after they share fentanyl.

Recent Fentanyl Murder Defense Victory

fentanyl murder victory
Varghese Summersett recently defended an individual charged in the death of a Tarrant County judge based on the new fentanyl murder statute. The grand jury ultimately no-billed the charge against our client. Varghese Summersett attorney Tiffany Burks, said the following:

“We are grateful to the grand jury for their careful review of this case, which led to the decision not to indict my client on a fentanyl murder charge. Any drug overdose resulting in death is a tragedy. We continue to extend our deepest condolences to the friends and family mourning the loss of [the] former [j]udge[].”

Facing a Fentanyl Murder Charge? Contact Us.

If you or a loved one is facing a fentanyl murder charge in Texas, it’s important to contact an experienced criminal defense attorney as soon as possible. Even though the law is new, our legal team has already handled several fentanyl murder cases and has vast experience handling drug charges. We understand the complexity and emotional devastation of these cases and will work tirelessly to defend your rights and protect your future. Call 817-203-2220.
Tough cases call for the toughest lawyers.

Varghese Summersett

Supreme Court Decision on Trump: Presidential Immunity and Its Implications

On July 1, 2024, the Supreme Court issued its decision in Trump v. United States addressing former President Donald Trump’s claim of presidential immunity. The case has been closely watched due to its potential impact on the accountability of former presidents for actions taken while in office.

Background of the Case

The central issue in this case was whether a former president could claim absolute immunity from criminal prosecution for actions taken during their presidency. Trump argued that his efforts to contest the 2020 election results were part of his official duties and therefore protected by presidential immunity. Special Counsel Jack Smith countered that only sitting presidents enjoy such immunity, and that extending this protection would effectively allow former presidents to evade accountability for criminal conduct.

Supreme Court’s Ruling

The ruling makes a distinction between the official actions of a president, which have immunity, and the unofficial acts of a president. In a 6 to 3 decision dividing along partisan lines, the justices said that Mr. Trump is immune from prosecution for official acts taken during his presidency but that there was a crucial distinction between official and private conduct.

Chief Justice John G. Roberts Jr. wrote for the majority, stating that broad immunity for official conduct is needed to protect “an energetic, independent executive.”

We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient.

However, Roberts added, the president “enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law.” Roberts’s majority opinion was joined by all three justices nominated by Trump, in addition to Justices Clarence Thomas and Samuel A. Alito Jr.

Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.

The Majority Decision in Trump v. United States

The majority ruled that former presidents have immunity from criminal prosecution for official acts taken while in office. Specifically:

  • Presidents have absolute immunity for actions within their “core constitutional powers.”
  • For other official acts, presidents have at least “presumptive immunity” from prosecution.
  • There is no immunity for unofficial acts.

The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts.

Types of Presidential Immunity

Type of Act Level of Immunity Description
Core Constitutional Powers Absolute Immunity Presidents are completely immune from prosecution for actions within their core constitutional powers.
Other Official Acts Presumptive Immunity Presidents have at least presumptive immunity from prosecution for other official acts.
Unofficial Acts No Immunity Presidents do not have immunity for unofficial acts.

The Dissent in Trump v. United States

Justice Sotomayor’s dissent (joined by Justices Kagan and Jackson) argued:

  1. The majority’s ruling has no basis in constitutional text, history or precedent.
  2. It effectively places the president above the law for official acts.
  3. It will have disastrous consequences for democracy and the rule of law.

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.

Justice Sonia Sotomayor, joined by her liberal colleagues, Justices Elena Kagan and Ketanji Brown Jackson, wrote that the decision was gravely misguided, declaring that their colleagues had made the president into “a king above the law.”

This new official-acts immunity now ‘lies about like a loaded weapon’ for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation.

Justice Jackson’s separate dissent emphasized:

  1. The majority created a new “Presidential accountability model” that exempts presidents from generally applicable criminal laws.
  2. This shifts power to the judiciary to decide when laws apply to presidents.
  3. It undermines deterrence and invites abuse of power.

The Court has now declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself.

Both dissents strongly disagreed with the majority’s reasoning and warned of grave consequences for the rule of law and separation of powers.

Implications and Future Considerations

The case now returns to the lower court, which will decide whether the actions Mr. Trump took were in an official or private capacity. The Supreme Court’s decision upends the case against Donald J. Trump over his attempts to subvert his 2020 election loss.

What’s Next for Trump?

The ruling will affect whether Trump faces a federal trial this year on four felony counts brought by special counsel Jack Smith, including conspiracy to defraud the U.S. and obstruction of an official proceeding.

As the case returns to the lower courts, the nation will continue to watch closely to see how this precedent shapes the future of presidential immunity and accountability.

Trump v. United States Opinion

Varghese Summersett

No-fault divorce has been a significant aspect of family law in the United States, allowing couples to dissolve their marriages without proving wrongdoing. In fact, no-fault divorces are allowed in all 50 states. Yet, there has been a movement recently that wants to end them. In this article, we will explore what a no-fault divorce is and whether no-fault divorces are nearing their demise in Texas.

What is a No-Fault Divorce

No-fault divorce enables couples to end their marriage without assigning blame to either party. This type of divorce is based on grounds such as “irreconcilable differences” or “insupportability,” indicating that the marriage has broken down beyond repair. No-fault divorce simplifies the legal process, making it quicker, less adversarial, and often less expensive than fault-based divorces.

Current State of Divorce Law in Texas

In Texas, couples can choose between no-fault and fault-based divorce. Under the no-fault system, the primary ground for divorce is insupportability, meaning the marriage has become unsustainable due to irreconcilable differences. This approach streamlines the divorce process and reduces the need for contentious legal battles.

However, Texas also allows for fault-based divorces, where one spouse must prove the other’s misconduct. Grounds for fault-based divorce can be found in Chapter 6 of the Family Code and include:

  • Adultery
  • Cruelty (mental or physical abuse)
  • Abandonment (for at least one year)
  • Conviction of a felony (with a prison sentence of at least one year)
  • Living apart (for at least three years)
  • Confinement in a mental hospital (for at least three years with little hope of recovery)

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The Push to End No-Fault Divorce in Texas

The movement to end no-fault divorce in Texas is gaining traction, particularly among conservative lawmakers and advocacy groups. Proponents of this change argue that no-fault divorce undermines the institution of marriage and makes it too easy for couples to end their unions without attempting reconciliation.

Public Advocacy

Matt Krause: State Representative Matt Krause has been a vocal advocate for ending no-fault divorce, arguing it would help keep families together and protect spouses who do not wish to divorce.

Conservative Figures: Influential conservatives like Texan Steven Crowder have criticized no-fault divorce, claiming it undermines marriage and harms men disproportionately.

Legislative Efforts

Past Attempts: In 2017, Texas state representative Matt Krause introduced a bill to abolish no-fault divorce, though it did not pass.

Republican Party Platform

The Texas Republican Party supports policies that would extend the waiting period for divorce and promote covenant marriages. Covenant marriages require premarital counseling and limit divorce grounds to more severe issues like adultery or abuse.

Implications of Ending No-Fault Divorce

Eliminating no-fault divorce in Texas could have significant implications, particularly for victims of domestic violence. Critics argue that making divorce harder could trap victims in abusive marriages, as proving fault can be difficult and time-consuming. Some conservative lawmakers acknowledge these concerns and emphasize the need for safeguards to protect vulnerable individuals.

Are you ready to get divorced?

National Context: Has No-Fault Divorce Been Eliminated Elsewhere?

While no state has entirely eliminated no-fault divorce, some have taken steps to restrict it. For example, Louisiana, Arkansas, and Arizona offer covenant marriages as an alternative to traditional marriages. These marriages require premarital counseling and impose stricter grounds for divorce. However, covenant marriages remain relatively rare.

Aspect Covenant Marriage Standard Marriage
Definition A form of marriage that requires pre-marital counseling and limits the grounds for divorce. A traditional marriage that allows for no-fault divorce and does not require pre-marital counseling.
Pre-Marital Counseling Mandatory. Couples must undergo counseling before getting married. Not required.
Grounds for Divorce Limited to specific faults such as adultery, abuse, felony conviction, abandonment, or living apart for a significant period. Allows for both fault-based and no-fault divorce (e.g., irreconcilable differences).
Waiting Period for Divorce Typically, there are longer waiting periods, and counseling may be required before proceeding with divorce. Varies by state; generally shorter waiting periods with no mandatory counseling for divorce.
Legal Availability Available in three states: Louisiana, Arkansas, and Arizona. Available in all 50 states.
Purpose To strengthen the commitment to marriage and reduce the likelihood of divorce. To provide a flexible and accessible legal framework for marriage and divorce.
Divorce Process Complexity More complex, often requiring proof of fault and additional counseling. Less complex, especially in no-fault cases.

Conclusion

The move to end no-fault divorce in Texas is part of a broader conservative effort to reinforce traditional family values and make marriages more resilient. While this push has garnered support from some lawmakers and advocacy groups, it faces significant opposition due to concerns about the potential impact on victims of domestic violence and the overall feasibility of proving fault in divorce cases.

As the debate continues, it will be essential to balance the goal of preserving the institution of marriage with ensuring that individuals have the ability to leave unhealthy or abusive relationships. The future of no-fault divorce in Texas remains uncertain, but the discussions surrounding it highlight the evolving nature of family law and societal values.

Varghese Summersett

DWI Lessons Learned from the Justin Timberlake Arrest

On June 18, 2024, *NSYNC alum Justin Timberlake was arrested in the Hamptons for driving while intoxicated (DWI). There are a number of lessons that can be learned from Timberlake’s arrest.  In this article, we’ll cover them so you’ll hopefully you’ll be better prepared if you are stopped on suspicion of driving while intoxicated.

Timberlake’s DWI Arrest

Timberlake was driving his 2025 BMW X7 when he failed to stop at a stop sign at the corner of Madison Street and Jermain Avenue in Sag Harbor, New York. He also swerved twice into the opposite lane of traffic. The police stopped Timberlake at 12:37 AM.

justin timberlake travel before arrest

Timberlake admitted to coming from the American Hotel where he had one drink. He said he was following friends home.

The police reported he couldn’t focus while the police were speaking to him or while he was searching for his registration. They noted other signs of intoxication: Timberlake had bloodshot and glassy eyes, a strong odor of alcohol on his breath, slow speech, and unsteady movements. They also reported he did poorly on the field sobriety tests and refused to take a breath test – three times in 40 minutes.

Following his arrest, Timberlake was processed and held overnight before being arraigned and released without bail the next morning. Timberlake was officially charged with one count of DWI and cited for failing to stop at a stop sign and failing to stay in his lane. Timberlake is scheduled to appear in court again on July 26, 2024.

Can You Be Arrested After Having Just One Drink?

Timberlake says he only had one drink. There’s a lot to break down in that statement.

First, the most common answers to whether or not someone has been drinking include:

  1. “Just a bit.”
  2. “A little”
  3. “A couple of drinks”
  4. “Just one.”

It may have been one drink, it may not have been. The bartender at the American Hotel backs him up. Others report Timberlake was “wasted” before he left the restaurant.

Lesson 1: Don’t admit anything.

In most cases, the police will know little more than what the driver tells them. However, officers can do the work required to get more information. We’ve had cases where officers tracked down all the drinks and all the places a driver was at, but that type of investigative work would be unusual for a misdemeanor.

Lesson 2: Don’t assume one drink is one drink.

Timberlake mentioned to police that he had consumed a Vesper martini before his arrest for DWI. The Vesper martini, popularized by the James Bond novels, is a potent cocktail made from Lillet Blanc, Tanqueray gin, and Grey Goose vodka, shaken over ice served with a thick twist of lemon rind. In other words, this particular drink is made from all alcohol, without any non-alcoholic mixer.

According to The Daily Beast, the Vesper contains 4 ounces of liquor.

standard sized drinks

A standard-size drink is 1.5 fl oz of distilled spirit. So, one Vesper, made to the original recipe, would be about 2.5 standard drinks.

Lesson 3: Don’t assume one drink can’t get you over the legal limit.

Timberlake has reportedly weighed between 170 and 197 lbs in recent years. If he consumed the martini on an empty stomach, he could easily be over the legal limit in under an hour and probably remain there for about an hour before dropping below the legal limit. The absorption rate of alcohol varies from person to person and is based on several other factors, including what you have in your stomach. Elimination rates of alcohol are relatively constant for a particular person. In other words, what you have in your stomach doesn’t affect how quickly the alcohol absorbed into your cells is eliminated.

Lesson 4: Refuse to give a specimen voluntarily.

Reports also say that Timberlake refused to give a specimen of his breath on at least three occasions. This was absolutely the correct thing to do. If you provide a breath specimen, you are doing so voluntarily. In many jurisdictions, if the officer believes he has probable cause that a person was driving while intoxicated.

In New York State, officers can obtain a warrant for a blood test during a routine DWI stop under certain circumstances. New York, like many states, has an implied consent law. This means that by driving on New York roads, drivers implicitly agree to chemical tests of breath, blood, urine, or saliva to determine alcohol or drug content if arrested for DWI. If a driver refuses a breathalyzer test, officers may seek a warrant for a blood test.

Timberlake refused three times over the course of about 40 minutes to take a chemical test of his blood alcohol content.

According to the complaint, Timberlake said, “No, I’m not doing a chemical test.” The singer reiterated twice, “I refuse.”

It is unclear whether officers obtained a warrant for Timberlake’s blood. There has been no reporting about a possible blood draw warrant or transport to have the blood draw administered.

If the officer gets a warrant to draw your blood, your attorney may still be able to keep the specimen out if there is a problem with the warrant.

Lesson 5: The odor of alcohol tells an incomplete story

Officers claim all the typical signs of intoxication: he smelled like alcohol, had slow speech, and had unsteady movements. It is virtually impossible to read a DWI report without seeing the officer has checked all of these boxes. The reality is the odor of alcohol tells you nothing about how much a person had to drink. Alcohol smells like alcohol. Whether you have a sip or 10 drinks, the strength of the odor of alcohol has nothing to do with how much the person drank. Similarly, whether a person’s speech or movements at 12:30 in the morning or not is subjective. So, while these are commonly listed factors in DWI reports, not much can be read into this.

Lesson 6: Limit your interaction with the police to only the necessary statements.

Identify yourself when asked and then decline to answer other questions or do field sobriety tests.

Lesson 7: The less you say about what happened, the better.

There have been numerous reports of Timberlake seemingly making jokes about his arrest. The reality is the difference between a DWI and intoxication manslaughter is just the grace of God. It is generally not a good idea to joke about a bad decision with criminal consequences. It’s important to understand that, what you say and how you act after your arrest, will impact the outcome of your case – especially if you’re a public figure.

You may think, well, most of us aren’t in the public spotlight, so this doesn’t apply to us. You’d be wrong. On too many occasions, bond officers and courts have gotten calls from people unrelated to the case but thought the court should be aware of a statement or behavior while a person is on bond. It’s even worse when they have proof – whether they took a video or, worse, captured something from your own social media.

Let your actions be what people focus on. Whether you are guilty or not, it makes sense to get ahead of this. Take self-help classes, volunteer in a meaningful way, and if you have to make a statement, make one that addresses the seriousness of both the charge, but how much worse it could have been.

What Will Happen at the Next Court Hearing?

The next court appearance will be on July 26, 2024. This will be a virtual appearance, and Timberlake will not appear in person. It is also going to be a non-substantive setting. In other words, the judge will ensure the defense has received any requested materials – which should be all the discovery on the case. Prosecutors may confer with defense counsel and make an initial offer.

Lesson 8: Be prepared for your DWI case to take time to be resolved.

It’s rare for cases to get resolved at the initial court settings. Witnesses also generally do not appear at these types of settings. Most DWI cases will not get resolved for the better part of a year.

Varghese Summersett

In the realm of civil rights litigation, few legal doctrines have sparked as much debate and controversy as qualified immunity. This judicially created doctrine serves as a powerful shield for government officials, particularly law enforcement officers, against civil lawsuits.

If you have been wondering why agencies are rarely successfully sued for police shootings or jail deaths, there’s a two-word answer: qualified immunity. But what exactly is qualified immunity? How does it work in practice, especially in Texas and the Fifth Circuit? And why does it matter to both law enforcement and the general public?

This blog post aims to provide a comprehensive overview of qualified immunity, its application in Texas, and its implications for civil rights litigation. We’ll explore the doctrine’s origins, legal framework, key cases that have shaped its interpretation, and the ongoing debates surrounding its use. Whether you’re a legal professional, a law enforcement officer, or simply a concerned citizen, understanding qualified immunity is crucial in today’s legal landscape.

What is Qualified Immunity?

At its core, qualified immunity is a legal principle that protects government officials from personal liability for civil damages, as long as their actions don’t violate “clearly established” statutory or constitutional rights that a reasonable person would have known about. This doctrine most often comes into play in civil rights cases, particularly those involving alleged violations of the Fourth Amendment (which protects against unreasonable searches and seizures) and the Eighth Amendment (which prohibits cruel and unusual punishment).

The Supreme Court has described the purpose of qualified immunity as protecting “all but the plainly incompetent or those who knowingly violate the law.” This statement encapsulates the doctrine’s dual aims: to hold truly bad actors accountable while shielding well-intentioned officials from the burdens of litigation for reasonable mistakes made in the line of duty. Yet, as we will discuss in this article, as a judicially created protection, it is far from clear when government entities can properly claim qualified immunity, and it is harder still for genuine victims to get relief.

To quote the Fifth Circuit:

Qualified immunity is a judicially created doctrine calculated to protect an officer from trial before a jury of his or her peers. At bottom lies a perception that the jury brings a risk and cost that law-enforcement officers should not face, that judges are preferred for the task—a judgment made by appellate judges.

Legal Framework of Qualified Immunity

To understand how qualified immunity works in practice, it’s essential to grasp its legal underpinnings and the analysis courts use to apply it.

Statutory Basis

While qualified immunity is a judge-made doctrine, its roots lie in 42 U.S.C. § 1983, part of the Civil Rights Act of 1871. This statute provides a cause of action for individuals to sue state officials who violate their constitutional rights. However, the text of § 1983 doesn’t mention immunity. Instead, courts have read qualified immunity into the statute based on common law principles and policy considerations.

The Two-Prong Test

When a government official asserts qualified immunity as a defense, courts typically apply a two-prong test:

  1. Constitutional Violation: Did the official’s conduct violate a constitutional right?
  2. Clearly Established Law: Was the right “clearly established” at the time of the alleged misconduct?

The officer is entitled to qualified immunity if there is no Constitutional violation, or if the conduct did not violate law clearly established at the time. A right is not clearly established unless a reasonable official in that public official’s shoes would have understood his actions to be in violation of that right. Importantly, courts have discretion to address these prongs in either order, allowing them to avoid unnecessarily deciding constitutional questions if the right wasn’t clearly established.

The “Clearly Established” Standard

The second prong of the test – whether the right was “clearly established” – is often the most contentious and difficult to apply. Courts have interpreted this to mean that existing precedent must have placed the statutory or constitutional question “beyond debate.” In other words, the unlawfulness of the official’s actions must have been apparent in light of pre-existing law.

This standard requires a high degree of specificity. It’s not enough for a plaintiff to point to general principles; they must identify cases with materially similar facts where courts found the conduct at issue to be unconstitutional. This requirement has proven to be a significant hurdle for many plaintiffs.

Qualified Immunity in Practice: Key Cases and Examples

To better understand how qualified immunity operates in real-world scenarios, let’s examine some notable cases from Texas and the Fifth Circuit.

Henderson v. Harris County (2022)

In this case, the Fifth Circuit upheld qualified immunity for a deputy constable who tased a fleeing suspect. The suspect, Henderson, had led officers on a high-speed chase before eventually stopping and attempting to surrender. As Henderson was getting out of his car with his hands raised, the deputy tased him, causing him to fall and suffer a traumatic brain injury.

The court’s decision hinged on the “clearly established law” prong of the qualified immunity analysis. While acknowledging that using a taser on a compliant suspect would violate the Fourth Amendment, the court found that Henderson had not identified any precedent clearly establishing that an officer couldn’t use intermediate force (like a taser) on a suspect who had just led them on a dangerous chase, even if that suspect was attempting to surrender.

This case illustrates the high bar set by the “clearly established” standard. Even though the court suggested the deputy’s actions might have been unconstitutional, the lack of a precisely analogous precedent meant qualified immunity applied.

Ramirez v. Escajeda (2022)

This case involved an officer who tased a man attempting suicide. The officer arrived at the scene to find Ramirez holding a knife to his own throat. After Ramirez ignored commands to drop the knife, the officer tased him, causing him to fall and suffer injuries.

The Fifth Circuit granted qualified immunity to the officer, emphasizing the demanding nature of the “clearly established law” standard. The court found that while there was precedent establishing that using a taser on a non-threatening person violates the Fourth Amendment, there was no clearly established law addressing the specific circumstance of using a taser on a suicidal person threatening self-harm.

This case demonstrates how courts often require a high degree of factual similarity between the case at hand and existing precedent to find a right “clearly established.”

Sweetin v. City of Texas City (2022)

In this case, the Fifth Circuit denied qualified immunity to a city employee who detained ambulance drivers, finding he had acted beyond the scope of his authority. The court emphasized that qualified immunity only applies to officials performing discretionary functions within their official capacity.

This decision illustrates an important limitation on qualified immunity: it only protects officials acting within the scope of their duties. When officials clearly exceed their authority, they may lose the protection of qualified immunity.

Carswell v. Camp (2022)

This case addressed a procedural aspect of qualified immunity. The Fifth Circuit held that a trial court cannot allow discovery to proceed before ruling on a motion to dismiss asserting qualified immunity. The court emphasized that qualified immunity is meant to be an immunity from suit, not just from liability, and therefore should be resolved at the earliest possible stage of litigation.

This decision underscores the broad protection afforded by qualified immunity, which shields officials not just from paying damages, but from the burdens of litigation itself.

Jurisdiction Case Facts Qualified Immunity Upheld? Reasoning Constitutional Violation or Clearly Established Law?
U.S. Supreme Court Hope v. Pelzer (2002) Inmate handcuffed to a hitching post for 7 hours in the sun without water or bathroom breaks. No A jury could find officials had fair warning that conduct was unconstitutional Possibility of a clearly established law violation, even in a novel situation.
U.S. Supreme Court Kisela v. Hughes (2018) Officer shot woman holding knife while approaching another person, unaware of her mental illness. Yes No clearly established law that the officer’s conduct was unconstitutional The officer’s actions did not violate clearly established law.
U.S. Supreme Court Taylor v. Riojas (2020) Inmate held for six days in filthy cells covered with feces and sewage. No Conditions obviously unconstitutional, no clearly established law needed Any reasonable officer should have known the conduct was a Constitutional violation.
U.S. Supreme Court Mullenix v. Luna (2015) Trooper shot and killed suspect during high-speed chase, firing from overpass. Yes No clearly established law that officer’s actions were prohibited There was no clearly established law that using deadly force on a fleeing subject posed a danger to others that violates the 4th Amendment.
U.S. Supreme Court Tolan v. Cotton (2014) Officer shot unarmed man on porch, mistakenly suspected of car theft. No (case proceeded) Genuine disputes of material fact existed Potential violation, to be determined by the trial court. The court did not answer whether it the factual reasonableness of a search or seizure should be considered in determining if there was a clearly established right.
U.S. Supreme Court White v. Pauly (2017) Officer arrived late to standoff, shot suspect without warning. Yes No clearly established law requiring warning in this scenario There is no clearly established law the requires an officer to shout a warning before firing in an ongoing confrontation that would rise to the level of a 4th Amendment violation.
Supreme Court Taylor v. Riojas (2020) Inmate forced to sleep naked on sewage-covered floor for days. No Any reasonable officer should have known conditions violated Constitution Constitutional violation “obvious”
5th Circuit Cole v. Carson (2019) Police shot teen holding gun to own head; dispute over threat to officers. No Factual disputes precluded summary judgment Potential violation, to be determined
U.S. Supreme Court City & Cnty. of San Francisco v. Sheehan (2015) Officers shot mentally ill woman threatening them with knife in her room. Yes No clearly established law prohibiting actions in this scenario Not clearly established: The Supreme Court found the officer’s second entry into the room without a warrant did not violate the Fourth Amendment because officers can enter in an emergency when there is potential for injury to someone inside and that the officer’s use of force – including firing multiple rounds – was reasonable.
5th Circuit Hanks v. Rogers (2019) Officer performed “takedown” on non-resisting suspect during traffic stop. No Clearly established that force on compliant suspect violates Fourth Amendment Fourth Amendment right to be free from excessive force during a seizure was violated when the defendant stopped the plaintiff for a minor traffic offense, which abruptly escalated to a takedown. The plaintiff posed no immediate threat or flight risk, and at most, he offered passive resistance by asking whether he was under arrest. Look at Betts v. Brennan for a case where the Fifth Circuit found there was not a clearly established law violation.
U.S. Supreme Court Plumhoff v. Rickard (2014) Officers fired 15 shots at fleeing vehicle during high-speed chase, killing occupants. Yes No clearly established law prohibiting deadly force to end dangerous chase. Not clearly established. According to SCOTUS, officers could have believed that if he continued to flee he would have posed a deadly threat, further once an officer is justified in opening fire to end a public threat the officer can continue to fire until the threat has ended.
5th Circuit Joseph v. Bartlett (2020) Officers repeatedly tased and struck man in mental health crisis, leading to death. Mixed Mixed ruling based on individual officers’ actions Partially established. As to the portion established. The court affirmed the denial of qualified immunity based on a clear violation of established law by using excessive force against the arrestee, who was not actively resisting

The Role of Video Evidence

With the proliferation of body cameras, dashcams, and cellphone videos, video evidence has become increasingly crucial in qualified immunity cases, particularly those involving allegations of excessive force. The seminal case on this issue is Scott v. Harris (2007), where the Supreme Court emphasized that when video evidence clearly contradicts a plaintiff’s version of events, courts should view the facts in the light depicted by the video.

Byrd v. Cornelius (2022)

This case addressed the role of video evidence in qualified immunity determinations. In Byrd v. Cornelius, the Fifth Circuit found that the video evidence was inconclusive and didn’t resolve the factual disputes identified by the district court. Byrd sued officers for excessive force during an arrest, and the officers sought qualified immunity. The district court denied immunity, finding genuine disputes of material fact. On appeal, the Fifth Circuit dismissed the case for lack of jurisdiction because the video evidence was inconclusive and didn’t resolve the factual disputes identified by the district court.

This case highlights the importance of video evidence in qualified immunity cases, particularly in the context of excessive force claims. It also underscores that when factual disputes exist, qualified immunity often cannot be resolved at the summary judgment stage.

This principle has had a significant impact on how lower courts handle video evidence in qualified immunity cases. Judges often find themselves carefully reviewing video footage, sometimes multiple times, to determine whether it conclusively establishes the facts or leaves room for dispute.

Debates and Criticisms Surrounding Qualified Immunity

While qualified immunity has been a fixture of civil rights litigation for decades, it has faced increasing scrutiny and criticism in recent years. Understanding these debates is crucial for a comprehensive view of the doctrine.

Accountability vs. Protection

The central tension in the qualified immunity debate is between two competing interests: holding officials accountable for misconduct and protecting them from frivolous lawsuits. Supporters of qualified immunity argue that it’s necessary to allow officials, especially law enforcement officers, to make difficult split-second decisions without fear of personal liability. They contend that without this protection, many qualified individuals would be deterred from public service.

Critics, on the other hand, argue that qualified immunity has become too broad, effectively providing near-absolute immunity in many cases. They contend that this makes it virtually impossible to hold officials accountable for clear misconduct, undermining the very purpose of civil rights laws.

Historical and Textual Criticisms

Some judges and scholars have raised questions about the historical and textual justifications for qualified immunity. For instance, in Rogers v. Jarrett (2023), Judge Don Willett of the Fifth Circuit penned a concurring opinion criticizing the doctrine’s foundations. He argued that the original text of the Civil Rights Act of 1871 (which became § 1983) included a “Notwithstanding Clause” that explicitly nullified all common law defenses. This clause was mysteriously omitted when federal statutes were first compiled in 1874 and has never been restored.

This historical argument suggests that the entire edifice of qualified immunity might rest on shaky ground. If Congress originally intended to allow suits against officials regardless of common law immunities, it calls into question the Supreme Court’s assumption that Congress silently incorporated these immunities into § 1983.

Practical Criticisms

Beyond these theoretical concerns, critics have raised practical issues with how qualified immunity operates:

  1. The “Clearly Established Law” Catch-22: Because courts often require a nearly identical precedent to find a right “clearly established,” it can be almost impossible for plaintiffs to overcome qualified immunity in cases with novel fact patterns. This creates a potential catch-22 where a right is never clearly established because cases are dismissed before reaching the merits.
  2. Constitutional Stagnation: Some argue that by allowing courts to skip the constitutional merits and decide cases solely on the “clearly established” prong, qualified immunity stunts the development of constitutional law.
  3. Empirical Questions: Some scholars, like Professor Joanna Schwartz, have questioned whether qualified immunity actually provides the benefits claimed by the Supreme Court, such as shielding officials from the burdens of litigation.

The Future of Qualified Immunity

Given the ongoing debates and criticisms, what might the future hold for qualified immunity, particularly in Texas and the Fifth Circuit?

Potential for Supreme Court Reconsideration

While the current Supreme Court has shown little appetite for dramatically altering qualified immunity, some justices have expressed willingness to revisit aspects of the doctrine. For instance, Justice Thomas has written separately to suggest that the Court should reconsider its qualified immunity jurisprudence in an appropriate case.

Congressional Action

Congress has the power to modify or eliminate qualified immunity by amending § 1983. While some reform proposals have been introduced, none have gained significant traction so far. However, continued public attention on issues of police accountability could potentially lead to legislative action in the future.

State-Level Changes

Some states have passed laws limiting or eliminating qualified immunity under state law. While Texas has not taken such action, this trend could potentially influence the broader national conversation about qualified immunity.

Continued Refinement by Lower Courts

In the absence of dramatic changes from the Supreme Court or Congress, lower courts like the Fifth Circuit will likely continue to refine the application of qualified immunity. This could potentially lead to a narrowing of the doctrine in certain contexts or a more nuanced approach to analyzing video evidence.

Practical Implications for Litigation

Understanding the nuances of qualified immunity is crucial for both plaintiffs and defendants in civil rights litigation. Here are some key practical considerations:

For Plaintiffs:

  1. Specific Pleading: Given the high bar set by the “clearly established law” standard, plaintiffs must be prepared to plead their cases with specificity, identifying closely analogous precedents that show the unlawfulness of the defendant’s conduct was “beyond debate.”
  2. Video Evidence: When available, video evidence can be crucial in overcoming qualified immunity, especially in excessive force cases. Plaintiffs should be prepared to argue how video evidence supports their version of events.
  3. Scope of Authority: As seen in Sweetin v. City of Texas City, plaintiffs may be able to overcome qualified immunity by showing that the official acted outside the scope of their authority.

For Defendants:

  1. Early Assertion: Qualified immunity should be raised as early as possible in litigation, ideally in a motion to dismiss. As Carswell v. Camp illustrates, courts should resolve qualified immunity before allowing discovery to proceed.
  2. Factual Disputes: Defendants should focus on whether any factual disputes are material to the qualified immunity analysis. Not every factual disagreement will preclude summary judgment on qualified immunity grounds.
  3. Analogous Cases: Defense counsel should be prepared to distinguish the case at hand from existing precedents that might be seen as clearly establishing the right in question.
  4. Video Evidence: When favorable, video evidence can be powerful in supporting a qualified immunity defense. However, as Byrd v. Cornelius shows, video must be conclusive to resolve factual disputes at the summary judgment stage.

Ongoing Importance of Qualified Immunity

Qualified immunity remains a crucial doctrine in civil rights litigation, particularly in cases involving law enforcement. Its application requires a delicate balance between protecting officials from undue litigation and ensuring accountability for clear misconduct.

In Texas and the Fifth Circuit, recent cases like Henderson v. Harris County and Ramirez v. Escajeda demonstrate the continuing high bar set by the “clearly established law” standard. At the same time, cases like Sweetin v. City of Texas City remind us of the doctrine’s limitations, particularly when officials act outside their authority.

As debates about police accountability continue to dominate public discourse, qualified immunity is likely to remain a contentious issue. Whether through judicial reconsideration, legislative action, or gradual refinement by lower courts, the doctrine may well evolve in the coming years.

Understanding the nuances of qualified immunity – its legal framework, key precedents, and practical applications – is essential for anyone involved in or interested in civil rights litigation. As we’ve seen, the doctrine’s application can often mean the difference between a case proceeding to trial or being dismissed at an early stage.

Ultimately, qualified immunity exemplifies the ongoing challenge of balancing individual rights with the practical realities of governance and law enforcement. As society grapples with issues of police conduct and civil liberties, the evolution of qualified immunity will undoubtedly play a crucial role in shaping the landscape of civil rights enforcement in Texas and beyond.

Varghese Summersett

Expert Analysis of Pete Arredondo’s Indictment

This week, the Washington Post contacted me regarding Unvadle School Police Chief Pete Arredondo’s indictment. In many respects, the Uvalde police chief indictment is unprecedented. This article will break down the indictment for endangering a child and what we can glean from them.

Background of the Indictment

A Uvalde County grand jury has indicted former school district police chief Pete Arredondo and former officer Adrian Gonzales on charges of child endangerment. These are the first criminal charges against law enforcement for their inadequate response to the deadliest school shooting in Texas history, which occurred on May 24, 2022.

Pete Arredondo’s Indictment

What is an Indictment?

An indictment is a grand jury’s declaration that there is probable cause to proceed with a charge. Probable cause is a low level of proof, meaning there is a reasonable belief that a person has committed or is about to commit a crime. It is based on facts and circumstances that would lead a reasonable person to believe the suspect is involved in criminal activity. The grand jury itself is a body empowered to conduct investigations, but more commonly, it is the body that prosecutors take felony allegations to proceed as felony cases.

Significance of the Indictment

In this case, prosecutors in Uvalde County took these allegations to the grand jury and asked for an indictment. The grand jury agreed there was probable cause to proceed and “true billed” the indictment with ten separate counts. Each of the ten counts is identical except for the victims’ names, which are redacted for purposes of this article.

uvalde police chief indictment

What is Endangering a Child in Texas?

Endangering a Child in Texas – Penal Code 22.041

Endangering a child is a felony offense in Texas. The elements of the offense are:

A person commits an offense if they:

    1. Intentionally, knowingly, recklessly, or with criminal negligence,
    2. By act or omission,
    3. Engage in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

To be guilty of endangering a child, a person must place the child in “imminent” danger of death, bodily injury, or impairment. “Imminent” means ready to take place, near at hand.

How Does the Indictment Allege Child Endangerment?

The indictment against Pete Arredondo highlights both specific actions and omissions in his role as Chief of Police during the Robb Elementary School shooting. The detailed acts and omissions demonstrate the alleged failures in leadership and decision-making that contributed to the inadequate response to the emergency, including uncoordinated efforts, delays in action, inefficient resource use, compromised officer readiness, and poor communication.

Specific Acts:

  1. Arredondo did not establish an incident command post during the Robb Elementary School shooting.
  2. Arredondo delayed taking decisive action to breach the classroom where the shooter was located, resulting in a critical time lapse.
  3. Arredondo failed to coordinate effectively with other law enforcement agencies that arrived at the scene, contributing to a disorganized response.
  4. Arredondo did not ensure that officers under his command were adequately equipped or informed about the developing situation inside the school.
  5. Arredondo neglected to relay essential information to the officers at the scene, impeding their ability to respond effectively.

Specific Omissions:

  1. Arredondo’s failure to establish a command post led to an uncoordinated and chaotic response from various law enforcement agencies.
  2. Arredondo’s delay in breaching the classroom allowed the shooter to continue his actions unchecked, resulting in additional harm and loss of life.
  3. Arredondo failed to coordinate with arriving law enforcement agencies led to inefficient use of resources and personnel.
  4. Arredondo compromised their ability to respond effectively and safely by not ensuring officers were properly equipped and informed.
  5. Insufficient communication of critical information by Arredondo left officers without the necessary details to make informed decisions during the crisis.

Statute of Limitations

Some might wonder how the state can still press charges after nearly 30 months. The statute of limitations for the offense of endangering a child is five years. This is the shortest statute of limitations for a felony in Texas, so prosecutors are within the timeframe to bring these charges.

Level of Offense

Endangering a child is generally a state jail felony.

State Jail Felony in Texas

Allegations in the Indictment

Acts and Omissions

The indictment alleges both specific acts and omissions by Pete Arredondo that constituted endangering a child.

During the active incident, Arredondo failed to engage the shooter, did not follow proper protocol, delayed the response to the threat, and failed to direct or command subordinates effectively. These actions, or lack thereof, contributed to the harm caused during the incident.

Additionally, Arredondo neglected to provide timely protection or assistance, did not evacuate victims from the danger zone, failed to take charge and coordinate an effective response, and did not utilize available resources to mitigate the threat. These omissions further illustrate the alleged inadequate response to the crisis.

Mental States Alleged in the Indictment

Texas Penal Code recognizes four mental states and all four are alleged in this indictment. Below, we break down the differences in the mental states with examples.

Intentional

A person acts intentionally when it is their conscious objective or desire to engage in the conduct or cause the result. Example: Someone deliberately sets fire to a rival’s business to destroy it.

Knowing

A person acts knowingly when they are aware that their conduct is reasonably certain to cause the result. Example: A person sets a fire to clear brush, knowing it will likely spread to nearby properties.

Reckless

A person acts recklessly when they are aware of but consciously disregard a substantial and unjustifiable risk. Example: A person starts a campfire during a dry season, aware of but disregarding the risk of a forest fire.

Criminal Negligence

A person acts with criminal negligence when they ought to be aware of a substantial and unjustifiable risk. Example: A person leaves a fire pit unattended, not realizing the risk of it spreading to the surrounding area.

Each Count is for a Separate Victim

The indictment lists each count for a separate victim, specifying how Arredondo’s acts or omissions endangered each individual child. Each count is identical in structure, differing only in the name of the victim.

What Makes This Indictment Unusual?

While the offense allows for both acts and omissions, acts are alleged far more frequently than omissions. Texas courts have upheld inaction as a basis for a conviction for endangering a child. For example, in Hernandez v. State, 531 S.W.3d 359, 362 (Tex. App. 2017), the Court of Appeals in Eastland upheld a conviction against a mother who failed to keep her home in a livable condition to the point her child was covered in bug bites and rashes that resulted in cellulitis and a fever for which he had to be admitted to the hospital. Her inaction led the court to find the evidence was sufficient to “constitute[] an immediate danger for them to contract disease and constituted an imminent danger to their physical and mental health.”

It is unusual and likely unprecedented to have someone in law enforcement prosecuted for their inaction. Then again, it is unprecedented to have a situation where law enforcement arrived at a scene and it took over an hour (77 minutes) to engage the perpetrator. The offense does not require proof that the defendant intended to put the child in imminent danger or cause harm. Contreras v. State, 54 S.W.3d 898, 906 (Tex. App.—Corpus Christi 2001, no pet.)

Conclusion

The indictment against Pete Arredondo involves ten counts of endangering a child, each corresponding to a different victim. The allegations include both specific acts and omissions, demonstrating how his actions or lack thereof placed children in imminent danger. This case underscores the critical importance of effective leadership and decision-making in emergency situations, especially when the safety of children is at stake.

Varghese Summersett

Expert Analysis of Pete Arredondo’s Indictment

This week, the Washington Post contacted me regarding Unvadle School Police Chief Pete Arredondo’s indictment. In many respects, the Uvalde police chief indictment is unprecedented. This article will break down the indictment for endangering a child and what we can glean from them.

Background of the Indictment

A Uvalde County grand jury has indicted former school district police chief Pete Arredondo and former officer Adrian Gonzales on charges of child endangerment. These are the first criminal charges against law enforcement for their inadequate response to the deadliest school shooting in Texas history, which occurred on May 24, 2022.

Pete Arredondo’s Indictment

What is an Indictment?

An indictment is a grand jury’s declaration that there is probable cause to proceed with a charge. Probable cause is a low level of proof, meaning there is a reasonable belief that a person has committed or is about to commit a crime. It is based on facts and circumstances that would lead a reasonable person to believe the suspect is involved in criminal activity. The grand jury itself is a body empowered to conduct investigations, but more commonly, it is the body that prosecutors take felony allegations to proceed as felony cases.

Significance of the Indictment

In this case, prosecutors in Uvalde County took these allegations to the grand jury and asked for an indictment. The grand jury agreed there was probable cause to proceed and “true billed” the indictment with ten separate counts. Each of the ten counts is identical except for the victims’ names, which are redacted for purposes of this article.

uvalde police chief indictment

What is Endangering a Child in Texas?

Endangering a Child in Texas – Penal Code 22.041

Endangering a child is a felony offense in Texas. The elements of the offense are:

A person commits an offense if they:

    1. Intentionally, knowingly, recklessly, or with criminal negligence,
    2. By act or omission,
    3. Engage in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

To be guilty of endangering a child, a person must place the child in “imminent” danger of death, bodily injury, or impairment. “Imminent” means ready to take place, near at hand.

How Does the Indictment Allege Child Endangerment?

The indictment against Pete Arredondo highlights both specific actions and omissions in his role as Chief of Police during the Robb Elementary School shooting. The detailed acts and omissions demonstrate the alleged failures in leadership and decision-making that contributed to the inadequate response to the emergency, including uncoordinated efforts, delays in action, inefficient resource use, compromised officer readiness, and poor communication.

Specific Acts:

  1. Arredondo did not establish an incident command post during the Robb Elementary School shooting.
  2. Arredondo delayed taking decisive action to breach the classroom where the shooter was located, resulting in a critical time lapse.
  3. Arredondo failed to coordinate effectively with other law enforcement agencies that arrived at the scene, contributing to a disorganized response.
  4. Arredondo did not ensure that officers under his command were adequately equipped or informed about the developing situation inside the school.
  5. Arredondo neglected to relay essential information to the officers at the scene, impeding their ability to respond effectively.

Specific Omissions:

  1. Arredondo’s failure to establish a command post led to an uncoordinated and chaotic response from various law enforcement agencies.
  2. Arredondo’s delay in breaching the classroom allowed the shooter to continue his actions unchecked, resulting in additional harm and loss of life.
  3. Arredondo failed to coordinate with arriving law enforcement agencies led to inefficient use of resources and personnel.
  4. Arredondo compromised their ability to respond effectively and safely by not ensuring officers were properly equipped and informed.
  5. Insufficient communication of critical information by Arredondo left officers without the necessary details to make informed decisions during the crisis.

Statute of Limitations

Some might wonder how the state can still press charges after nearly 30 months. The statute of limitations for the offense of endangering a child is five years. This is the shortest statute of limitations for a felony in Texas, so prosecutors are within the timeframe to bring these charges.

Level of Offense

Endangering a child is generally a state jail felony.

State Jail Felony in Texas

Allegations in the Indictment

Acts and Omissions

The indictment alleges both specific acts and omissions by Pete Arredondo that constituted endangering a child.

During the active incident, Arredondo failed to engage the shooter, did not follow proper protocol, delayed the response to the threat, and failed to direct or command subordinates effectively. These actions, or lack thereof, contributed to the harm caused during the incident.

Additionally, Arredondo neglected to provide timely protection or assistance, did not evacuate victims from the danger zone, failed to take charge and coordinate an effective response, and did not utilize available resources to mitigate the threat. These omissions further illustrate the alleged inadequate response to the crisis.

Mental States Alleged in the Indictment

Texas Penal Code recognizes four mental states and all four are alleged in this indictment. Below, we break down the differences in the mental states with examples.

Intentional

A person acts intentionally when it is their conscious objective or desire to engage in the conduct or cause the result. Example: Someone deliberately sets fire to a rival’s business to destroy it.

Knowing

A person acts knowingly when they are aware that their conduct is reasonably certain to cause the result. Example: A person sets a fire to clear brush, knowing it will likely spread to nearby properties.

Reckless

A person acts recklessly when they are aware of but consciously disregard a substantial and unjustifiable risk. Example: A person starts a campfire during a dry season, aware of but disregarding the risk of a forest fire.

Criminal Negligence

A person acts with criminal negligence when they ought to be aware of a substantial and unjustifiable risk. Example: A person leaves a fire pit unattended, not realizing the risk of it spreading to the surrounding area.

Each Count is for a Separate Victim

The indictment lists each count for a separate victim, specifying how Arredondo’s acts or omissions endangered each individual child. Each count is identical in structure, differing only in the name of the victim.

What Makes This Indictment Unusual?

While the offense allows for both acts and omissions, acts are alleged far more frequently than omissions. Texas courts have upheld inaction as a basis for a conviction for endangering a child. For example, in Hernandez v. State, 531 S.W.3d 359, 362 (Tex. App. 2017), the Court of Appeals in Eastland upheld a conviction against a mother who failed to keep her home in a livable condition to the point her child was covered in bug bites and rashes that resulted in cellulitis and a fever for which he had to be admitted to the hospital. Her inaction led the court to find the evidence was sufficient to “constitute[] an immediate danger for them to contract disease and constituted an imminent danger to their physical and mental health.”

It is unusual and likely unprecedented to have someone in law enforcement prosecuted for their inaction. Then again, it is unprecedented to have a situation where law enforcement arrived at a scene and it took over an hour (77 minutes) to engage the perpetrator. The offense does not require proof that the defendant intended to put the child in imminent danger or cause harm. Contreras v. State, 54 S.W.3d 898, 906 (Tex. App.—Corpus Christi 2001, no pet.)

Conclusion

The indictment against Pete Arredondo involves ten counts of endangering a child, each corresponding to a different victim. The allegations include both specific acts and omissions, demonstrating how his actions or lack thereof placed children in imminent danger. This case underscores the critical importance of effective leadership and decision-making in emergency situations, especially when the safety of children is at stake.

Varghese Summersett

If you’re pulled over in Texas and an officer suspects you of driving while intoxicated (DWI), you will be asked to perform field sobriety tests. But can you refuse a field sobriety test? The short answer is yes. Do you know what the consequences for refusing to do field sobriety tests are? This article will explore your rights, police tactics, and how to navigate this complex situation.

Your Right to Refuse Field Sobriety Tests in Texas

In Texas, you have the legal right to refuse field sobriety tests. The standard battery of field sobriety tests include:

  1. Horizontal Gaze Nystagmus (HGN) Test
  2. Walk-and-Turn Test
  3. One-Leg Stand Test

These tests are discussed in more detail in the webinar linked below.

Unlike chemical tests (breath, blood, or urine), field sobriety tests are not covered under Texas’ implied consent laws. This means refusing them does not result in a license suspension.

Officer Tactics and Your Right to Refuse

Officers are trained to make these requests sound like requirements. They are figures of authority asking you to do something. The truth is, if you asked them, they’d admit you don’t have to do them. They certainly want you to. And there’s certainly scientific evidence that backs up properly administered field sobriety tests. The real problem is you don’t know who is administering the test – and more often than not, these tests are administered incorrectly. I’ve watched thousands of DWI tapes as a lawyer, and only a few of these videos have an officer who does field sobriety tests properly. (There are exceptions. For example, some cities have dedicated DWI units, and as a result, these officers can get very good at DWI investigations. It is all they do.) So here’s what you should remember:

  1. You have the right to refuse, regardless of how the officer phrases the request.
  2. Officers are trained to gather evidence, and these tests are designed to help them do that.
  3. Politely but firmly stating, “I do not consent to any field sobriety tests” is within your rights.

Why You Should Consider Refusing Field Sobriety Tests

There are several reasons why refusing field sobriety tests may be in your best interest:

  1. Not Entirely Objective: While the tests are designed to be objective, some subjectivity is built in. “Stops while walking,” is a clue of intoxication on the Walk and Turn test. What’s the line between a pause and a stop? “Sways while balancing” is a clue on the One Leg Stand. What’s a sway and what’s not. At the scene, it’s up to the officer to decide.
  2. Reliability Depends on Administration: If the officer doesn’t administer the tests correctly, the value of those tests are diminished immensely. It’s also something that’s easy to miss as an attorney, if you don’t know what you are looking for.

Potential Consequences of Refusal of Refusing Field Sobriety Tests

While refusing may be beneficial, it’s important to understand the potential consequences:

  1. The officer may still arrest you based on other evidence.
  2. Your refusal can be used as evidence of consciousness of guilt in court, though this can be challenged.
  3. The officer may seek a warrant for a blood test.
  4. Refusal might strengthen the officer’s suspicion of intoxication.

Everything You Need to Know if You’ve Been Arrested for Driving While Intoxicated in Texas


Exiting Your Vehicle vs. Field Sobriety Tests

It’s crucial to distinguish between an officer’s request to exit your vehicle and a request to perform field sobriety tests. These are two separate issues with different legal implications.

When an Officer Can Order You Out of Your Vehicle

In Pennsylvania v. Mimms, the U.S. Supreme Court ruled that an officer can order a driver to exit their vehicle during a lawful traffic stop. This is allowed for officer safety reasons and applies regardless of whether the officer suspects impairment. You must comply with this order.

Key points about exiting your vehicle:

  1. It’s a lawful order that you must follow.
  2. Refusing to exit can lead to charges of resisting or obstructing an officer.
  3. This order does not require probable cause or reasonable suspicion of a crime.

Exiting Vehicle vs. Field Sobriety Tests

While you must exit your vehicle if ordered, this does not mean you must perform field sobriety tests. Here’s the distinction:

  1. Exiting the Vehicle: A mandatory order for officer safety.
  2. Field Sobriety Tests: Voluntary tests that you can refuse.

Once you’re out of the vehicle, the officer may ask you to perform field sobriety tests. At this point, you can (and often should) politely decline.

what to do if you are stopped by the police

What to Do If Stopped

If you’re pulled over and suspect the officer believes you’re intoxicated:

  1. Be polite but firm in asserting your rights.
  2. If ordered, exit the vehicle as requested.
  3. Clearly state “I do not consent to any searches or tests” if asked to perform field sobriety tests.
  4. Remember you have the right to remain silent beyond providing license and registration.
  5. Do not physically resist if the officer decides to arrest you, but continue to assert your right to remain silent.

Breath and Blood Tests

While you can refuse field sobriety tests without automatic penalties, the same is not true for breath or blood tests. Texas has implied consent laws, meaning refusal of these chemical tests can result in license suspension. However, it’s important to note:

  • Refusing a specimen test results in a 180-day license suspension.
  • Failing the test leads to a 90-day suspension.

Despite the longer suspension for refusal, it is almost always the best decision not to voluntarily give a specimen. Let the officer do their job and obtain a warrant if they have probable cause. This approach limits the evidence against you and preserves your rights.

If the officer does obtain a warrant for a blood draw, you should not physically resist. At this point, the blood draw is legally authorized, and resisting could lead to additional charges.

Conclusion

Understanding your rights, the difference between lawful orders and voluntary tests, and the potential consequences can help you make an informed choice if you find yourself in this situation. Remember, field sobriety tests are designed to gather evidence against you, and in many cases, refusing these tests may be the best course of action to protect your legal interests.