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More HPD Crime Lab Problems; This Time it’s the Crime Scene Unit

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police-850054_1920Yes, I said HPD Crime Lab rather than Houston Forensic Science Center. Despite the fancy new name and claimed independence, it’s the same old game. This time the Lab commissioned an audit of its crime scene unit related to officer-involved shootings. The purpose of the audit was to address complaints by the District Attorney’s Office and HPD’s own homicide division. The audit focused solely on the crime scene unit and their performance during the investigation of officer-involved shootings. And the results reveal anything but independence.

Hat tip to the Houston Chronicle for revealing this audit and reporting on its findings.

Set aside for a minute the technical problems with the crime scene unit, the audit highlights a continued lack of autonomy expected of an independent and forensic agency. This “independent” crime scene unit is comprised of 26 employees: a civilian director, a civilian administrative employee, four civilian investigators, and 20 HPD officers and sergeants. 77% of their staff are commissioned officers from the Houston Police Department – the very entity it largely investigates and is supposed to remain independent of. The crime scene investigators even wear HPD uniforms or insignia as they collect evidence and process scenes. They are in fact HPD officers and employees who are subject to transfer out of the crime scene unit and back into the regular ranks. That’s not an independent agency.

Additionally, the crime scene unit personnel are directed largely by the homicide detectives on the scene as well as the officer involved in the shooting. The audit noted that the decision to stop evidence collection was made to appease the homicide detective who determined he “had enough” evidence and an iron clad case. The involved officer, the shooter and apparent target of the independent investigation, is present telling his colleagues “what happened,” it is difficult for crime scene investigators to look past those words and search for additional, or dare I say contradictory, evidence.

On a side note, this is the same bias faced by prosecutors and their investigators – they too are on scene and inside the scene listening to the officer describe what happened. They too will have difficulty looking past those words. Outside of the walk through and witnessing the charting of the officer’s weapon, they sit back and wait on reports from the crime scene unit, homicide, and internal affairs. They conduct no other independent investigation. Instead, they serve as only a somewhat independent review.

Having been on many of these scenes, both as a representative of the District Attorney’s Office and as an involved officer’s legal counsel, the “walk through” by the officer always leads the evidence collection. Sure the scene is secured prior to the walk through and some evidence may already be marked, but everyone is looking for the officer’s rendition to know where else to look and what might be there. To be fair, where a foot chase proceeds a shooting, the scene can be rather large and spread out, necessitating some direction by the officer involved. But for independence, his involvement and direction in the scene must be minimal. Investigators must be free to disregard his words and explanation as they search independently for evidence.

Back to those technical problems: the internal audit found that crime scene unit technicians lack basic forensic skills and training. That’s kind of a big problem given their role in evidence collection. They are not trained specifically in bloodstain patterns and trajectory analysis. This could mean they miss the significance of bloodstains found on the scene. They may guess at or misread an angle of fire as a bullet traveled from the officer’s gun through an object or into a person. They overly rely on two-dimensional photographs to document facts rather than notes, data, and measurements. In fact, they rarely use the sophisticated FARO Focus 3d X330 laser scanners available to capture millions of measurements within the scene and provide a three-dimensional view.

This is not to say that skills and training cannot be improved; it’s simply to point out that they must be strengthened. There is no need for their training to come at the Houston Police Academy. They need not work alongside and with “colleagues” who share the same experiences, badge, and paycheck. Much like the Harris County Institute of Forensic Sciences hires its own employees, the Lab’s crime scene investigators should not be linked to or tied to the Houston Police Department – at least not if they want to claim independence.

 

view and download the audit report: Findings of CSU Audit


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Baseball, Apple Pie, and High Speed Police Escorts

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Late for Work? Call a Trooper and Get to Work on Timepolice-lights

You’ve seen police escorts many times. Sometimes it’s a wide load. Other times maybe a caravan of equipment. Maybe even a funeral procession. We’ve come to expect them from time to time on Texas roadways. But did you know you could hire one when you’re late for work?
The Texas Rangers called upon a Texas state trooper to meet Joey Gallo and escort him into Arlington.

Gallo was sleeping and missed a couple calls from his manager. Apparently another employee was sick or something and Gallo was needed to cover a shift. Once awaken, he didn’t have much time to get there and, well, Texas is a big state. Gallo would have to drive from Round Rock, Texas, where he had just returned from some other business trip, to Arlington. Oh, and he was traveling by car. Round Rock to Arlington, according to MapQuest, is an approximate 181 miles and takes about 2 hours, 55 minutes on a good day with no additional traffic.

But you see, a normal drive wasn’t going to work. You know, traffic and all. So the Rangers, the baseball team not to be confused with the investigative unit of the Department of Public Safety, hired a trooper to escort him into Arlington. Flashing lights and all, the trooper cleared the way and made the last hour of the drive a bit faster.

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July 29, 2016

“I probably shouldn’t say how fast I was going,” Gallo said. “It might have been a little dangerous. But they told me I was in the starting lineup. I had to get there. Having the police escort was pretty cool.”

So maybe next time you need to get to work in a hurry, you too should call a trooper. On the other hand, maybe Texas just loves baseball. In either event, Gallo did get there in time to warm up and even homer against Oakland in the fifth.

It was more than just a home run. It left the bat at 110 mph and traveled 448 feet into the seats just above the visitors bullpen in left field. It was the longest opposite field homer in Arlington by a Rangers lefty this season.

100 mph sounds pretty fast, but it may not have even been his top speed for the day. Imagine the speeds at which you might travel with a police escort clearing the way! After all, posted speed limits are just presumptions. Texas follows a reasonable and prudent test for maximum speeds.* Needing that home run was apparently both reasonable and prudent under the circumstances.

And there you have it folks: baseball, apple pie, and police escorts. Good for America and great for you when you’re running late to work.

 

*Texas Transportation Code Sec. 545.351. MAXIMUM SPEED REQUIREMENT. (a) An operator may not drive at a speed greater than is reasonable and prudent under the circumstances then existing.


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Waller County Jail Report

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  The Waller County Civilian Commission report is finally out, and you can read it here:

Recommended Police and Jail Practices

We finished our review, and our report! Joined by Hon. Craig Washington, Hon. Morris Overstreet, Juan L. Guerra, Randall Kallinen, and Paul Looney, I spent countless hours trying to help the citizens of Waller County. In an epic move, Sheriff Smith invited us in and gave us unfettered access to his domain: people, places, and practices. We came and went as necessary. We interviewed whomever we wanted. We looked at whatever we chose. And, ultimately, we created 9 recommendations that have the potential to change law enforcement:

  

  • Better screening for mental health and illness
    • use of video (Skype or other technology) can provide immediate access to a physician
    • additionally, the same video equipment can provide immediate contact with a magistrate to set or review bond or even provide a personal recognizance bond to shorten jail stay
  • Police worn body cameras
    • develop policies to record and store all police interactions
  • Language and demeanor issues
    • address use of derogatory language
    • eliminate the stigma and treat others with dignity and respect
  • Counseling and fitness to serve for officers and jailers
    • mental health is just as important as weapon proficency
  • New jail facilities
  • Booking processes and information sharing
  • Digital reporting
  • Public information
  • Separation between jailing and policing

To be sure, every person in every agency can improve. We only hope our roadmap with some specific improvements can bring about greater respect for both the authorities and the citizens.

While it is sad that it took a suicide to bring change, better that change comes!


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Does the Defendant Have All the Rights?

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Too often, we hear citizens complain, “The defendant has all the rights; the victim has none.” know-your-rights1

This old adage could not be further from the truth. Yes, the defendant has rights: the right to a fair trial, the right to effective counsel, the right to remain silent, and the right to confront his accuser, among others. But, every citizen has these same rights when facing a criminal accusation.

I think what people usually wonder is why does a guilty person have these rights. Well, first, not all persons accused of criminal conduct are guilty. It is through the exercise of these rights that a jury can determine whether or not the accused is in fact guilty. But, when we start with the notion that the “guilty” should not have these rights, we are immediately discarding the accused’s rights. When we chip away the rights of the accused, we chip away the rights of all. Imagine for just a moment that you were innocent yet accused of criminal activity. Wouldn’t you want these rights?

Similarly, law enforcement officers often complain that they are not afforded the same rights as the criminals they arrest. This, again, could not be further from the truth. If you want the rights of a criminal, commit a crime or face criminal investigation or prosecution. If you haven’t heard them, officers usually complain during internal affairs investigations about their lack of rights. But, there is no right to employment. When an officer voluntarily seeks employment with a police agency, he is voluntarily subjecting himself to their rules and procedures and can face discipline for violations of those rules or procedures. Read more about What do police officers need to know about the 1st and 4th Amendment rights of public employees? in Val Van Brocklin’s discussion of police officers’ perceptions for their lack of rights.

Interestingly, those complaining they have no rights actually have all the same rights, they are just lucky enough to be in a position of not having to exercise them. They are not facing the power of the government attempting to take their life or liberty. They are not facing prison. They are not facing criminal conviction. But you can bet if they were, they would want all of the same rights.


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Human Decency 

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to protect and serve; honor; integrity; trust

These are the words I learned growing up in a police family. Being an officer meant you did what was right; at least that’s what I was told. 

What has happened to those principles? Reading about a full female body cavity search IN PUBLIC during a traffic stop makes me sick. How degrading would that be if an officer decided your pants should be removed in a parking lot because he smelled marijuana? Police encounters may be embarrassing but they should not be degrading and intimately intrusive. 

Maybe it’s just me, but I’d consider that a rape. 


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Looking for the Truth Shouldn’t Cost Friendships

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Maybe you have been following the David Temple case. Maybe you haven’t. In short, David Temple was convicted of killing his wife in a totally circumstantial cold case prosecuted by Kelly Siegler, former Harris County Assistant District Attorney turned semi-celebrity on TNT’s Cold Justice.

In case you hadn’t followed the events here is what you need to know: prior assistant district attorneys and grand juries declined to indict or charge David Temple in this murder. Eventually, Kelly Siegler reviewed the case and obtained an indictment. She tried the case and David was convicted. On direct appeal, the court affirmed the conviction. David has always maintained innocence and his lawyers (Dick DeGuerin, Stanley Schneider, and Casie Gotro) always believed there was more than what the prosecutor revealed. In particular, there were alternate suspects which were not fully disclosed to the defense – in violation of the law. Fast forward, the alternate suspects started to percolate and develop years later. When a special prosecutor (appointed by then District Attorney Pat Lykos) and District Attorney Investigator Steve Clappart started reviewing the case and the alternate suspects, BOOM, they lawyered up — with lawyers arranged by Kelly Siegler. Throughout this process, many reports and witnesses were hidden from the defense attorneys. Tapes were denied to be in existence. And, Kelly sought to use influence within friendships at the District Attorney’s Office and law enforcement to derail any new investigation.

But that wouldn’t stop Steve Clappart nor John Denholm.

I’m proud to say I’ve known Steve my whole life. He was my uncle’s best friend from high school and thus a close family friend from before I was born. I’m proud to say I’ve known John for a great many years. He worked in Homicide when we first met. He since became an attorney and we were lucky enough to be able to hire him. What I can tell you about both of these men: their word means something. It is with honor that they seek the truth, where ever it may be found. Since 2007, while still working in Homicide, John has been pointing out problems with the prosecution of David Temple.

Fast forward now to the past year or so when David’s current lawyers, Stanley Schneider and Casie Gotro, started investigating and litigating a writ of habeas corpus on David’s behalf. (A writ is a collateral attack on the conviction – not a direct appeal – and can include the introduction of new evidence.)

As Steve and John stood by their convictions, they began to be resented by folks within the District Attorney’s Office and law enforcement. How could they dare challenge a conviction? But you see, that’s just it…true friends, worthy friends, respect the process and the pursuit of justice. For their work, I applaud them both.

As John says, “Someone blew this woman’s head off. Why wouldn’t you want to find him?” Why not at least look to see if you got the right guy?


In case you missed it, Lisa Falkenburg, Pulitzer Prize winning journalist from the Houston Chronicle, applauds them too!


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Friends or the Government?

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You know that old saying: keep your friends close and your social media friends even closer! Well that’s the new twist on the old saying.

Did you know that the police, the government, can create fake social media accounts and “friend” you? They can. And they do. They can use your own social media against you.

Four quick lessons:

1) Don’t post anything, I repeat anything, that could be used against you. Should go without saying, but alas it must be said. The world does not need to know your every move.

2) Know who your “friends” really are in case you post something that could be used against you.

3) Nothing you post on social media or the internet or electronically is ever private!

4) Police can lie; lawyers cannot. Lawyers cannot create fake accounts and friend others for use.

Be smart! Use social media wisely or not at all.


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Innocent Convictions

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Why Would an Innocent Individual Ever Be Convicted of a Crime They Did Not Commit?

Though our system of justice is based on English Jurist William Blackstone’s premise, It is better that ten guilty persons escape than that one innocent suffer“, far too often we learn about exonerations of innocent persons who suffered convictions for crimes they didn’t commit. So, the question becomes why does our criminal justice system allow someone to suffer years in prison for a crime they did not commit?

In The Innocent Man, John Grisham‘s first book of nonfiction, he chronicles the journey of Ron Williamson through the criminal justice system. With research for his book he uncovered the reasons a person might suffer the consequences of a wrongful conviction:

“The journey also exposed me to the world of wrongful convictions, something that I, even as a former lawyer, had never spent much time thinking about. Wrongful convictions occur every month in every state in this country, and the reasons are all varied and all the same — bad police work, junk science, faulty eyewitness identifications, bad defense lawyers, lazy prosecutors, arrogant prosecutors.”

As a former police officer, a former prosecutor and now a criminal defense attorney, who also represented a client wrongfully accused of capital murder, I agree with each of the above reasons. During my eleven years of defending the accused, I have witnessed all of Grisham’s reasons as to why an innocent person might be convicted of a crime he didn’t commit.

Like Grisham, I had never given much thought to the problem of wrongful convictions during my career as a police officer and prosecutor. However, representing a person who was factually innocent, yet charged with capital murder, made me realize how easy the police can build a case against an innocent person while ignoring evidence favorable to the “suspect.”

The greatest consequences of wrongful convictions involve the suffering of innocent persons. It might be easy to ignore when we have not spent much time thinking about the consequences. Michael Morton‘s book, Getting Life, should be required reading for citizens reporting for jury duty. Readers will see through his experiences the problems with false charges and the consequences they bring.

Because of a wrongful conviction Michael Morton suffered the loss of everything he had, including his son. He spent 25-years in prison for the murder of his wife while the real killer, Mark Norwood, was free to kill again. His book exposes how bad police work, junk science, faulty witness information, and an arrogant prosecutor all contributed to his wrongful conviction.

As Michael grieved for his dead wife, the police focused on him as the suspect and ignored all evidence that tended to exonerate him. Later this same evidence led to Norwood’s conviction. Not only did one innocent suffer, another family suffered the loss of their loved one at the hands of Norwood. Morton’s family suffered the loss of his wife and the horror of believing, as the police thought, that Michael could be a monster. Take just a moment and think of all the people, all the families, who suffered because the police focused on the wrong suspect; because the prosecutor was arrogant; because subsequent prosecutors failed to seek justice and blocked appeals at every turn.

It is so true when Grisham says the reason for wrongful convictions are all varied and yet all the same. We observed firsthand some of these reasons while exonerating our client on a wrongful capital murder charge. Only by finding the actual killers were we able to show prosecutors the error of their accusations against our client.


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legal lies

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Facebook: Like it or Leave it, but make no mistake about it law enforcement uses it as tool to probe into your information. And I like that Facebook is telling them to stop using their service to lie! The DEA (drug enforcement agency) creates fake profiles as part of ongoing investigations. And Facebook’s chief security officer is telling them to stop: law enforcement needs to follow the same rules as civilians about being truthful. Facebook rules prohibit users from lying about who they are!

The Huffington Post: Facebook Tells DEA to Stop Operating Fake Profile Pages
KHOU.com: Facebook Unfriends DEA

One of the biggest mistakes Americans has made is to allow policeman/law enforcement to lie. They create fake online IDs and profiles, they lie about polygraph results, and they lie about evidence. Well, some do. Many law enforcement officers do not.

Let me start by letting you know my story:
My father was a police officer for 33 years, most of my life.  Now he practices law with me, and we have a criminal defense firm. My brother is a police officer. My brother’s wife is a police officer. Many of my friends and family friends are police officers. I grew up around them. Another lawyer in my firm was a police officer for just over 27 years. We love law enforcement – well the good ones! Growing up, my father taught me you didn’t have to lie to catch the bad guys. You didn’t have to cheat. And you didn’t have to worry if they got away because they’d be back and you’d get them next time.

It seems innocent enough when law enforcement officers (VICE COPS) enter a house of prostitution in plain clothes and pretend to be anyone other than a cop. They even deny being cops when specifically asked. Seems innocent enough, and they use this approach to catch the prostitutes offering services or dealers selling street drugs. But just how far can the lies go?

Can police polygraph a murder suspect and lie to him about the results? Ask Anthony Graves about this one. He is one of many who faced this lie. Being accused of capital murder, police interrogated him about his whereabouts and the crime. He maintained he was innocent, knew nothing about any of the facts or circumstances surrounding this crime, and requested a polygraph to show his truthfulness. The Texas Rangers polygraphed him and told him he failed! Ask any honest law enforcement officer and they will know at least one other officer who would lie to a suspect about their polygraph results to “encourage” the suspect to be more forthcoming!

My dad and I worked a capital murder case (as defense lawyers) where we were originally skeptical about our clients version of facts: he claimed to know nothing about the offense, yet he was charged with capital murder and his brother had given a confession saying both brothers were involved! Now, there was no polygraph in this case but it took over 18 months to prove the confession was false because it had been tainted by law enforcement and that both brothers were actually innocent. With no polygraph at play, we still had law enforcement “encouraging” a confession. When our client didn’t take the bait, law enforcement went after the mentally challenged brother and after hours of work had secured a confession. The “confession” and a “similar color truck” was the only evidence that linked these brothers to a capital murder. The brothers had a maroon truck and a witness to the capital murder identified a red truck. Red/maroon…close enough for government work! (To be fair, there was another aggravated robbery in the same area just prior to the capital murder in which the victims gave descriptions of the red truck and the suspects. Using a crimestopper’s tip pointing to the brothers, photospreads were compiled and shown to the victims – the victims picked our client and his brother and said they were “pretty sure” it was them. This was enough to get the boys charged and brought in for questioning which is when the brother “confessed.”)

Yet, our client and his brother maintained actual innocence and no knowledge of the incidents. Now you might ask, How does one prove innocence? Well, the only sure way is to find the truth: find the real killer! And that’s what we spent 18 months doing while our client and his brother sat in jail accused of both the aggravated robbery and the capital murder. Read more about this case here in Mary Flood’s column. Thankfully, once we found the real killers, we found two prosecutors willing to look at what we had. Granted, they were taking what we had and trying to disprove it, but when they went to visit Billy Joe Garza (one of the suspects we developed) in prison (now there for a different offense), they were surprised to hear Billy Joe say he was wondering when they’d figure this out! Turns out our two suspects where the real killers after all! Now back to the legal lies discussion…

Can law enforcement build an entire case out of lies? They do! I worked a federal conspiracy case where federal agents did just that! Federal agents, responding to the problem of rival drug dealers stealing drugs from competing drug stash houses, lied about wanting to set up a robbery of a stash house. Agents (undercover of course) made contact with an informant seeking information on associates who might help them “rob” a stash house. Telling the informant there would be at least 20 kilos of cocaine in the house, they needed 4 or 5 armed men to help go in and get the cocaine as well as any cash on site (claiming there would usually be about $25,000 in the stash house). The informant rounds up some contacts and pitches the idea. When the contact bites on the potential to score some cocaine and cash, a meeting is set between the contact and the undercover agents. The agents tell the contact what they want and how they will split up the proceeds (the cocaine and cash). The contact is told to arrive on a particular date, with a crew, at a particular location (usually a parking lot) to receive the address of the stash house. That day comes and the crew arrives. They are given the location of the “stash house” and the agents make sure they are armed. The crew is given the “stash house” address and they drive off.  As they arrive at the “stash house” they are all taken into custody by more federal agents waiting at the location. By the way, there is no stash: no cocaine, no money, nothing. Just an empty warehouse. All those from the contact to the crew are arrested and charged with conspiracy to possess at least 20 kilos of cocaine while carrying a firearm.  Why 20 kilos? Well (1) it has to be an attractive amount and (2) 20 kilos is the amount that bumps up the federal sentencing guideline. Why firearms? Well (1) because it’s supposed to be robbery and (2) possessing a firearm also bumps up the federal sentencing guideline. Long story, but what can law enforcement lie about? (1) a stash house that never existed, (2) cocaine, 20 kilos to be exact, that doesn’t exist, and (3) the informant’s participation. (You see, the informant got a reduced punishment for his crime by bringing in more criminals to prosecute on a fake stash house!) Essentially, we are left with a crew that agreed to rob a stash house that doesn’t exist – they are each arrested and charged with trying to possess cocaine.

Can police lie about evidence? You bet they can! (outside of court anyway) They might say you failed a polygraph; they might say they found your fingerprints or DNA at the scene; they might say your brother confessed. The point is they are legally permitted to lie to the public, lie to citizens, and stretch the truth to see if they can persuade you into committing a crime (i.e. prostitution or any other crime) or persuade you into giving up information against yourself or others. Police lie with impunity regularly. They are not supposed to lie in court though – another day, another topic.

We were once taught to respect the police and be honest: just tell the truth. Why don’t we expect the same from them?


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K-9 Training

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CIVIL SUITS

A sergeant who used to work for me asked if I could come to the HCSO Academy and give a class on K-9 legal issues. I prepared for search and seizure issues but when I got out there, I saw the class was titled “K-9 Civil Liabilities.” I had recently defended a case where a K-9 handler was sued over an off-duty incident with their assigned dog so I was familiar with the issue.

Officer’s are worried about ending up as a defendant in civil court.  I was sued a few times over the years and actually stood trial in Federal Court in 1995. (Take nothing for plaintiff in Judge Gilmore’s court). I explained to them what to expect if sued, how they are defended, and allayed many concerns by addressing a plaintiff’s election of remedies under the Civ. Prac. & Rem. Code:

Sec. 101.106.  ELECTION OF REMEDIES.

(a)  The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.

(b)  The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.

(c)  The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit against or recovery from any employee of the same governmental unit regarding the same subject matter.

(d)  A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.

(e)  If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

(f)  If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only.  On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.  Amended by Acts 2003, 78th Leg., ch. 204, Sec. 11.05, eff. Sept. 1, 2003.

That would have been nice to have in effect when I was sued….

LR&W I

One of the problems officers have in interpreting case law is they are not familiar with the differences between mandatory and persuasive cases. They will tell you about “case law” and it turns out to be something from the 9th Circuit in California, or a District Court in Boston. One of things they found most helpful was when I explained what courts control in Harris and surrounding counties. The chart behind me is a rough graph that I put up to illustrate.

Academy 101514

I downloaded about a dozen of the most recent Texas cases involving K9 and put them in a dropbox folder for them to request a link if they want to review. When discussing cases, the dog handlers did not like USSC opinion in FLORIDA v. JARDINES which prohibits taking a drug dog on a person’s property to develop probable cause for a warrant.


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