Thank you for sharing!

Your article was successfully shared with the contacts you provided.
While hate crimes legislation and death penalty reform dominated the criminal law debate during the 2001 session of the Texas Legislature, one of the more sweeping changes made to the Code of Criminal Procedure garnered little discussion. The change is found in H.B. 1572, a seemingly innocuous bill that attempts to keep crime victims and their families better informed about court proceedings. The bill was sold to the House and Senate on the strength of one of its main proposals — preventing criminal-defense lawyers from excluding a crime victim and family members from watching trial proceedings by subpoenaing them as witnesses without just cause. H.B. 1572 gives crime victims and their families a right prosecutors and defense lawyers wish they had — a peek at appellate court decisions before they are made public. The change shocks several state appellate justices, some of whom just learned about the proposal last week. They believe the bill partially nullifies long-established rules aimed at protecting appellate courts from outside influence. “It is objectionable because it’s encouraging ex parte communication that is prohibited in every section of the law that I’m aware of,” says Phil Hardberger, chief justice of San Antonio’s 4th Court of Appeals. “A judge doesn’t do anything unless every party is present. There’s a reason for that.” Gov. Rick Perry has not indicated whether he’ll sign the bill, says Perry spokesman Gene Acuna, adding that the governor’s office has just begun looking carefully at new legislation. Perry has until June 17 to sign or veto the bill. If he takes no action on the bill by that date, it becomes law automatically. According to H.B. 1572, which lawmakers sent to Perry on May 27, crime victims and their families have the right, if requested, to be informed “by an appellate court of the decisions of the court, after the decisions are entered but before the decisions are made public.” Victims’ rights advocates believe the provision is meant to inform crime victims of appellate court decisions as soon as they are issued. But Hardberger says the bill goes further. “The obvious intent of the bill is to apply pressure on a judge to rule in one direction, which is exactly what the law of ex parte prohibits,” Hardberger says. LEGISLATIVE MYSTERY As often happens with large, sweeping bills, even the legislators involved in getting them passed aren’t always sure why specific language was placed in the draft. “I don’t know,” says state Rep. Pat Haggerty, R-El Paso, who sponsored the bill, when asked about the specific language affecting appellate decisions. “It was Lege [Legislative] Council drafting.” Usually bills are drafted by the Texas Legislative Council based on ideas presented by lawmakers. Sometimes bills that fail during previous sessions linger and get reintroduced verbatim by lawmakers in a subsequent session. In the case of H.B. 1572, it was introduced in at least two previous legislative sessions by state Rep. Ray Allen, R-Grand Prairie, without success, according to a Legislative Council official. Allen did not return a call seeking comment. “Like many other bills, this is at least the third version of this bill,” says Gary Kansteiner, senior legislative counsel who drafts criminal bills. “To tell you the truth, I think it goes back further than that.” Because the bill has been reintroduced several times, the reasoning behind the appellate decision language is difficult to ascertain, Kansteiner says. “It would have been vetted in theory in every single stage of committee hearings,” Kansteiner says. “It could have been an issue that was raised at a committee hearing in 1997. Or it’s possible that it’s never been raised.” “I have no idea how this was intended to work, but it can work,” says chief legislative counsel Steven R. Collins of H.B. 1572. Collins believes it shouldn’t be a problem to inform victims about appellate decisions as long as they are final judgments. Even representatives of victims’ rights groups, who strongly pushed for the passage of the bill, aren’t exactly sure how the peculiar language got into the bill. However, they agree with the sentiment behind the bill’s language — that crime victims shouldn’t have to learn from the media about decisions reversing a defendant’s conviction. “I have to tell you I don’t know the reasoning behind it,” says Dianne Clements, president of Justice for All, a Houston-based victims’ rights organization, of the appellate decision language in H.B. 1572. “It’s an attempt for there to be a notification [to victims] before it is publicly disseminated — not publicly released — but publicly disseminated,” Clements says. But even if the intent of the bill is to notify victims before an opinion hits the media, it may be tough for appellate courts to do in the age of the Internet. Most of Texas’ 14 intermediate courts of appeals as well as the Texas Supreme Court and Court of Criminal Appeals have Web sites that post opinions the same day they are released. Several appellate court justices say they consider an opinion to be officially public once it’s posted on the Internet. “The victim has public access to it as soon as it’s released,” says Lee Yeakel, a justice on Austin’s 3rd Court of Appeals, assuming the victim has a computer. Giving victims any more advanced warning than an Internet posting could be a problem, Yeakel says. “In fact, we’re very careful not to let leaks out about what we’re going to do,” Yeakel says. “We let our opinions speak for themselves.” When the bill was first introduced at least six years ago, the Internet was not as widely used as it is today. It’s possible that the language of the bill was originally written without the Internet in mind, Kansteiner says. TWO PROBLEMS Prosecutors and criminal-defense lawyers don’t agree on much, but they do agree that the appellate provision in H.B. 1572 is bad law. “It’s crazy,” says Chuck Mallin, chief of the appellate section of the Tarrant County District Attorney’s Office. He says his office already has a policy of keeping victims informed about their cases. Austin appellate lawyer Raoul Schonneman, a member of the Texas Criminal Defense Lawyers Association’s legislative committee, objects to the provision in the bill, too. “This kind of legislation makes it appear that the criminal justice system is an interest to serve private individuals,” Schonneman says. Appellate court justices aren’t sure how to deal with the law or if they’ll even get any requests from victims to see opinions before they’re public. One justice believes the law may mean appellate courts will have to send “courtesy copies” of their opinions to victims who request to see decisions as soon as they’re issued. But there’s a problem in doing that. Some appellate courts send courtesy copies of opinions to lawyers involved in the cases. However, very few courts send courtesy copies to parties in civil and criminal matters. And victims’ family members are not parties in criminal cases and are rarely mentioned in court pleadings. While prosecutors may represent their interests, district attorneys officially represent the state of Texas, not victims. “I can see where the court wouldn’t mind giving them a copy along with everybody else,” says Michael H. Schneider, chief justice of Houston’s 1st Court of Appeals. “But there are two problems. How do you determine who’s a victim? And the second thing is, are they required to pay for the copy of the opinion?” Schneider asks. “Maybe it’s not that big of a deal,” Schneider says. “But I just have a problem in giving anybody — whether it’s the state, the defendant or an individual — an advance copy of our opinion. It’s going to violate some other statutes is what it’s going to do.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.