Rethinking the Criminalization of Students’ Conduct

Texas along with many other states allows for the criminalization of conduct by students in school. I am not saying that they should not be held accountable for "bad behavior" but in general, I believe that many cops are quite over-zealous… especially many who work in ISDs, and that the quick reaction to criminalize and cite or arrest students is not the best way of handling most incidents on school property. After all, aside from those officers that are close to retiring, how many officers actually work in schools rather than in a larger department or on the street: those who were unsuccessful dealing with the public (bad attitude, etc), those who are not physically fit enough and thus are at a greater risk to themselves or those they are "protecting and serving", or those who are such ego-maniacs that they want to push kids around….

I’m sure this post will upset many people and I agree that it does not portray school district cops in the best light, but this is based on experiences I have witnessed personally and heard from others when dealing with school district policing.

Examples of these hasty responses are the issuing of citations to students for "disrupting a classroom". Really, if a teacher and of course the school itself cannot handle "behavior problems", perhaps they should not be in a classroom or managing a school district. Other examples include writing citations for Disorderly Conduct: Language, when a student uses obscene language on campus… again, this is not criminal.

All in all, it appears that there may be a movement afoot to change some of these knee-jerk reactions and responses as the legislature is considering removing some of these matters as crimes… or, officers could just use common sense and not issue citations and criminalize these behaviors… what is that called, common sense and discretion?

Don’t Ask Don’t Tell is History

Thank you to all who worked to repeal Don’t Ask Don’t Tell.  I hope you all enjoy this video, I know I did.  I always found it ironic that a country that "stands for freedom" and seeks to guarantee individual rights would penalize its own citizens and military members, willing to die for a cause by forcing them to live two lives.

 

Southside Wrecker Service: Towing Vehicles for Austin Police Arrests

Southside Wrecker is the independently owned company that contracts with the City of Austin to tow vehicles when a person is arrested by the Austin Police Department.  I am often asked by clients wanting to know where their vehicle is and how to get it back, so that contact information is below.

However, if you are not the registered owner of the vehicle, this is the information that Southside Wrecker will require before releasing the vehicle to you, and if you are looking for contact information about the process, you must contact Southside Towing, as I cannot answer questions on behalf of their business:

Instruments Accepted for Release of Vehicle

[A] A Notarized Power-Of-Attorney;
[B] A Court Order;
[C] A Certificate of Title;
[D] Notarized proof of loss claim of theft from an insurance company to show a right of possession;
[E] Positive name and address information corresponding to that contained in the files of the Department’s Vehicle Titles and Registration Division;
[F] A department approved affidavit of right of possession and control, as in 18.82 of this title(relating to definitions), which is to be furnished by the licensee upon request (an Affidavit of Right of Possession and Control is not to be used as a repossession instrument).  This instrument is available upon request at Southside Wrecker.

The contact information for vehicles impounded as a result of an arrest by the Austin Police Department is as follows:

8200 South Congress
Austin, TX 78745
Telephone:  (512) 441-7094
Fax : (512) 441-7179

 

Depositions in Criminal Defense: Reality or Just a Good Idea?!

Section 39.02 of the Texas Code of Criminal Procedure allows for the deposing of witnesses in criminal defense matters and on its face it does not require the unavailability of witnesses or anything like that, but if either side knew the witnesses may be unavailable, getting this information recorded could outweigh the perceived benefit of the State not having the people it needs to prove beyond a reasonable doubt that a crime was committed.

Two times deposing a witness could be an invaluable tool for resolving a case include witness unavailability or anticipated unavailability and when you are wanting to depose young or less-mature witnesses who could not handle the pressure of being in court (may be more advantageous to subject them to that atmosphere).  Also, this  could be a great tool for the court or prosecutors as it may allow for cases that would otherwise be tried to be resolved outside of a court, thus saving the county money for trial expenses, and it would prevent the inconveniencing of jurors if dispositive testimony is obtained in the deposition that would allow for resolution of the case.

Texas criminal defense attorneys must investigate their client’s case and this usually involves witness interviews.. a touchy subject in cases involving family violence and instances where the allegations are very personal.  However, we cannot always get a party to make him or herself available for said meeting.  And, even if they do make themselves available, these meetings do not result in recorded, admissible evidence, generally, that would help the case.  Instead, the defense attorney knows what was said and may have a better understanding of the case and facts but it may not be in a format that translates to something the prosecutor wants for her file to justify / take the action requested by the defense attorney (dismissal?).

Not only does this involve doing a thorough job on our client’s behalf, but it is required by the Texas Court of Criminal Appeals in order to avoid being labeled as ineffective….

Granted, there is broad concern among the defense attorneys in central Texas that it is a waste of time to request a deposition of a witness because most believe that a judge will just summarily deny the application and request.  But in my opinion, it makes sense to request it, get denied and then have one more possible point of error (not likely to succeed) for a future appeal.  But, if we do not try to get the approval, we will certainly not get it.

In fact, another criminal defense attorney, Stephen Gustitis wrote in his blog, The Defense Perspective:

There is more law supporting your right to take depositions than you might realize.
Art. 39.02, TCCP, provides for deposing witnesses when “good reason exists for taking the deposition,” and requires the filing of “an affidavit stating the facts necessary to constitute a good reason for taking the witness’ deposition and an application to take the deposition.” You must file both the affidavit and the application. A sworn application alone is not enough. You must request and conduct a timely hearing. Advancing an application at trial constitutes waiver.

In sum, we all need to work harder and use all the tools available to us in the Texas Code of Criminal Procedure because we all know, or at least the cynics among us know, that the chance of success on appeal is minimal.  And why should we assume the worst, ask for what you need and maybe, hopefully, you will get it to help your client.

Get Equal, Not Even…

One national organization working to spread the word and get equal rights for GLBT persons in the US is Get Equal.  It also has chapters in most if not all states, but Get Equal Texas caught my attention at the Austin Pride Festival 2011. 

 

I’ve never been someone who was willing to engage in civil disobedience or to stand on street corners and protest, probably because I was afraid, but I have quietly admired those with that courage for years.  Having said that, it is time for me to contribute to causes I believe in.  Holding a picket sign will only advance the message for equality so far, and I believe that Get Equal’s message would be better served by making myself available to them for legal matters.  Thus, by this post, I pledge my support to the cause of equality, equal rights, and justice for all through any peaceful, non-violent means.

I cannot think of a more basic request than to have equal rights and treatment as guaranteed by the United States Constitution, a document that as applied to many GLBT issues, is being blatantly ignored.

As a criminal defense attorney my primary focus is to ensure that a person’s legal and constitutional rights are protected against state and government actions.  One cannot expect for GLBT persons to live in a state of bliss where there is no hate or unequal treatment or discrimination, at least not very quickly… even the Civil Rights Movement of the 1960s is not 100% complete as evidenced by some attitudes against minorities.  A slow and steady progression for positive change to ensure every person, regardless of whether they are gay, lesbian, bisexual, transgendered, black, white, brown or any other color is all that can reasonably be expected.  Afterall, being given equal treament under the law is not a lot to ask for, and simply put, it is required by the Constitution.

My purpose is not to criticize anyone unless they are denying someone else his or her rights! Afterall, one person’s rights stop where another person’s rights begin! Drawing that line is not difficult like some would have us believe and the rights sought by Get Equal do not infringe on or threaten the rights of anyone else.  For example, they want marriage equality in all states.  In no way does a same-sex couple’s ability to marry impact a heterosexual couple’s right to marry. In no way does a same sex-couple’s decision to file a joint tax return injure anyone else filing a tax return.  You get the idea….

The complete irony to all of this is that the vast majority of those fighting against the equal treament of GLBT persons stem from religious roots, which itself is a guaranteed right and freedom in the United States!  Without those freedoms protected by the Constitution even the hateful, judgmental groups could not be heard.  And, while I believe that would be better for society, they have a government guaranteed right to make their opinions known and despite my disdain for their messages I would never seek to restrict their right to make their views known.  However, the fundamental difference in what they are seeking is that they want their beliefs and desires imposed on everyone else, even if it restricts other basic human rights and hurts other people.  

To conclude, I want more people to learn about Get Equal, HRC, Equality Texas, and other GLBT rights groups and to consider what their membership is asking for…

  • Equality, simply put.  To be treated the same as any other person guaranteed legal protections and rights under the Constitution.

And as an attorney, it is my ability and education that allow me to seek the protection of rights of persons and the promotion of justice through law.