AGENDA
TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION Executive Committee Meeting AGENDA
Friday, February 28, 2025, at 5:00 pm Cottonwood Ballroom - Arlington, Texas (2/18/25)
TCDLA Purpose: TCDLA’s purpose is to protect and ensure by rule of law and protect those individual rights guaranteed by the Texas and federal Constitutions in criminal cases; to resist the constant efforts which are now being made to curtail such rights; to encourage cooperation between lawyers engaged in the furtherance of such objectives through educational programs and other assistance; and through such cooperation, education, and assistance, to promote justice and the common good.
I. Call to Order – David Guinn - President
a. Roll Call, Melissa Schank
b. Welcome
II. Minutes, January 11, 2025 - David Guinn
III. President's Comments & Report - David Guinn
a. President’s Trip - April 2-6, 2025 – get signed up and make hotel reservation
b. SACDLA Complaint Against Judge Boyd
c. Deandra DWI Seminar in June $450
d. Amicus Aparicio Update
e. Executive Orders Impacting DEI
f. Forensic Science Commission —Rapid DNA, Subcommittee Member
IV. Chief Executive Officer's Report, Melissa Schank
a. Advanced DWI San Antonio One Day
b. Grant UB Carry Over Update
c. SBOT Update
d. TDCAA Update
e. CCA Update
f. Texas Trial Lawyers Seminar Marketing
g. Staff Update
h. TIDC – Scott Ehlers Memberships & Legislation Support
i. Investment Fund
j. Loop Report
k. CAIL & OLS, Program Manager Update
l. NACDL – March 2-6, 2027, Austin | March 4-5, 2027, Cross/Voir Dire
m. Building Safety and Back Neighbor
n. Building Next Door
o. Board Member Certificate
V. Old and New Business
Next Zoom: Thursday, April 10, 2025 at 3:30 pm https://us02web.zoom.us/j/84271255360?pwd=eG69SuTkkgJbGhCpTxCw4cFTE1VxxT.1 Meeting ID: 842 7125 5360 | Passcode: 727518
Next In Person: Friday, June 20, 2025, at 4:00 pm – President’s Suite Meeting Location: Hyatt Regency – San Antonio, TX Hotel Registration Link – Hotel Cutoff date 5/27/2025
Register for the June Board Meetings Register for the Rusty Duncan Registration
VI. Adjourn
TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION Executive Committee Meeting MINUTES
Friday, January 11, 2025, at 5:00 pm in Lubbock, Texas (1/6/25)
TCDLA Purpose: TCDLA’s purpose is to protect and ensure by rule of law and protect those individual rights guaranteed by the Texas and federal Constitutions in criminal cases; to resist the constant efforts which are now being made to curtail such rights; to encourage cooperation between lawyers engaged in the furtherance of such objectives through educational programs and other assistance; and through such cooperation, education, and assistance, to promote justice and the common good.
Attendance: David Guinn, Nicole DeBorde Hochglaube, Clay Steadman, Sarah Roland, Lance Evans, Adam Kobs, Jeep Darnell, Michael Gross, Mark Snodgrass, Monique Sparks, Tip Hargrove, David Moore, Melissa Schank
Absent: Bobby Mims
I. Call to Order – David Guinn - President - David called the meeting to order at 5:00 pm
a. Roll Call, Melissa Schank
b. Welcome - David welcomed the committee and thanked them for getting to Lubbock
II. Minutes, September 6, 2024 - David Guinn
Motion to approve the September 6, 2024, minutes made by Clay Steadman, seconded by Jeep Darnell – motion carries.
III. President's Comments & Report - David Guinn
a. President’s Trip - April 2-6, 2025 – get signed up and make hotel reservation - forms are in your packet – sign up with staff today!
b. Strike Force – Bobby gave an update
c. SACDLA Complaint Against Judge Boyd – SACDLA is joining Jason Goss’s complaint against Judge Boyd (complaint in the packets), Melissa reaching out to Trischa Padilla and Amanda Hernandez SACDLA officers to see how we can help
d. James McDermot & Far West Tx - James McDermott, Chief Public Defender for the Far West Regional Public Defender’s Office had an incredible victory recently. Judge Ferguson of the 394th Judicial District Court found the assistant District Attorney for Culberson County to be grossly negligent in his discovery duties. Judge Ferguson chastised the assistant District Attorney for 25 minutes from the bench and then suppressed evidence across a range of cases. Judge Ferguson ordered the District Attorney’s Office to review every conviction for the past three years. He also denied the State's request for sanctions against James and one of his assistant Public Defenders, Paul Chambers, and declined the District Attorney’s Office request for a recommendation that the defenders lose their licenses. Judge Ferguson declared that their filing of the motions to suppress was a service to the people of their counties and that they e were the only reason anyone discovered systemic failures of the District Attorney's office, failures that involved denying people their basic constitutional rights.
IV. Chief Executive Officer's Report, Melissa Schank
a. Advanced DWI San Antonio One Day – 49 turned in, 13 prefer one, 27 prefer 2 days, 9 neutral, Menger 29 other neutral, sending second blast
b. Grant UB Carry Over Update – still pending approval
c. State Bar of Texas President Steve Benesh - inviting to March Board meeting, Rusty or Juen Annual Members meeting to address our group
d. Rusty and CCA – Judge Newell will be giving the update, Judge Schneck, Parker,sending a card welcoming them and then a formal letter outlining our relationship with the court and opportunities for them to get involved, Judge Schneck will be speaking at Appellate and not providing a paper, update given on the new agenda
e. SBOT Advanced Criminal Law – Philip MacFurlow is not the second course director, Brian Wice was going to walk, they will change for the next one, talking to their staff about trying not to compete on dates for our next contracts for Rusty 2029
f. Texas Trial Lawyers Seminar Marketing I have met with their CEO, and they would like to propose we advertise a program, and they advertise one of ours, will send Pozner/Karton, we can network with their attorneys and case referrals/membership, Melissa see if they have a speaker for “How to deal with a deposition when criminal case”
g. Staff Update - Keri Steen has given notice focusing on wellness, hiring Ashley Ybarra who has a degree in Psychology, Peyton Martinez will take Ashley’s position, planning to graduate in December and then do St. Mary’s Law School online
h. Betty Blackwell – has retired and was recognized and given a plaque at the November 2024, Advanced DWI Seminar, she will be writing an article about what it looks like when transition to retirement in the future.
i. Pennsylvania Criminal Defense Lawyers Association asking to renew their agreement to use Voice name for their monthly publication – approve via email vote
j. Family Violence/Sexual Assault Committee – will set up roundtables, like the following committees: Public Defender, Crimmigration, Wellness, New Lawyers, Office Hours and Rural
V. Old and New Business
a. Bylaws Amendments, Tip Hargrove
MOTION: Nominations and Officer Clean Up
Motion to approve Bylaw Amendments for Nominations and Officer clean up for what have been doing made by Tip Hargrove, seconded by Adam Kobs – motion carries.
This will be brought to the TCDLA board to vote, then June Member Annual Meeting.
No Zooms February or March.
Next Zoom: Thursday, April 10, 2025, at 3:30 pm
https://us02web.zoom.us/j/84271255360?pwd=eG69SuTkkgJbGhCpTxCw4cFTE1VxxT.1
Meeting ID: 842 7125 5360 | Passcode: 727518
Next In Person: Friday, February 28, 2025, at 5:00 pm
Meeting Location: Drury Inn – Arlington, Texas
Hotel Registration Link – Hotel Cutoff date 2/12/2025
Register for the March Board Meetings
Register for the Karton on Voir Dire: Communication & Pozner on Cross CLE Reminder everyone about the Pozner/Karton, complete form for reservations – dinner and socials at Texas Live will be super fun!
VI. Adjourn
Motion to adjourn made by David Guinn – motion carries
Texas Criminal Defense Lawyers Association Bylaws Amendments
Approved by Bylaws Committee 12/16/24, Executive Committee 1/10/25, TCDLA Board 1/11/25
Will be presented at the TCDLA Annual Members Meeting, June 21, 2025
Article VII—Board of Directors
Sec. 1. Powers, Membership, and Terms.
a) The business and affairs of the Association shall be managed by a Board of Directors. The Board of Directors shall consist of the elected officers of the Association, the past presidents of the Association, the editor of the VOICE Voice for the Defense, and fiftyfour (54) directors. Each past president of the Association is a member of the Board of Directors, provided said past president is a member in good standing. Directors shall be elected for terms of three (3) years.
(b) No Director may be elected to serve for more than two (2) full consecutive terms, not to include any term or terms served as an associate Director (under prior Bylaws), provided this restriction shall not prevent officers and the editor of the VOICE Voice for the Defense who are Directors by virtue of office from serving on the Board of Directors, and further provided that Directors who have served two full consecutive terms may apply for and serve as a Director again after two (2) years out of the office as a Director. The executive committee shall have the responsibility for establishing rules to ensure the orderly election of the board of Directors.
(c) Each membership area designated in Section 11 of Article III shall be represented by a director from that area. The nominations committee shall have responsibility for establishing rules for elections which will achieve this objective.
(d) On a one-time basis in 2019, the board shall assign the fifty-four (54) directors into 6 groups of 9 members for election synchronization purposes. This group assignment may create a minimal number of terms that slightly exceed 6 total years and that is permitted on this one-time basis.
Sec. 5. Vacancies.
A vacancy occurring for any reason in the Board of Directors caused by the death, resignation, lack of qualified applicants, or removal of the person elected or appointed thereto may be filled by Presidential appointment of any eligible member by the President, subject to confirmation by the Board of Directors. Confirmation shall be
secured at the option of the President either by a majority vote of a quorum of the directors or by a poll of the directors. The failure of any director to send in his or her vote within ten days after the date the poll is placed in the mail to him or her shall be counted as a vote for confirmation. Under this section the appointee’s term ends when the original term of the director replaced by death, resignation, or removal for any reason would end. Article VIII Officers
Sec. 1. Officers.
The elected officers of the Association shall consist of a President, a President-Elect, a First Vice-President, a Second Vice-President, Treasurer, and Secretary. The appointed officers are the editor of the Voice for the Defense and the Chief Executive Officer
Sec. 10. Chief Executive Officer
(a) Duties of the Chief Executive Officer the Chief Executive Officer shall act as the Recording Secretary of the Association and shall be the custodian of the records of the Association. The Chief Executive Officer shall also perform all duties usually required of a Chief Executive Officer and such other duties as may be assigned by the President or the Board of Directors, and shall be a non-voting member.
Sec. 11. Duties of the Editor.
(c) The editor of the Voice for the Defense shall have voting rights on the Executive Committee.
Article IX Elections
Sec. 2. Nominations Committee.
Prior to January 31st of each year, the President-Elect shall appoint a Nominations Committee consisting of one member from each of the Association’s membership areas and all officers, editor of the Voice for the Defense. The Chief Executive Officer is a non-voting member Each member shall be an attorney who is a current member of TCDLA and has a minimum of five years of practice in criminal law. Past presidents may be appointed to the committee as a voting member as a district representative or may participate as a but shall be non-voting members. The chair of the Nominations Committee shall be the President-Elect designated by the President. The Nominations Committee shall meet, and the members present shall select its nominee(s) for those positions in the Association which are open for election or reelection. The chair of the Nominations Committee shall report in writing on or before 90 days prior to the next annual meeting all said nominee(s) for each such position to the President, the Board of Directors, the Chief Executive Officer, and the editor of the Voice for the Defense magazine. Association members shall be given notice in writing of the nominee(s) for each such elective position on or before 75 days prior to the next annual meeting. Such notice may be by publication in Voice for the Defense and shall also advise the membership that any qualified member in good standing may seek election for the position as an officer, other than President, director, or associate director of the Association by following requisites of Article IX Section 3(b) of the Bylaws. Any disputed questions regarding an election shall be resolved by those members in good standing who are present and voting at the annual meeting.
Amicus Brief No. 24-6057
Luis Alfredo Aparicio was detained and arrested as part of Operation Lone Star (OLS) Governor Abbott’s multibillion dollar initiative to address illegal immigration. In the trial court, Mr. Aparicio argued that his arrest violated the Equal Protection Clause because OLS’s policy excluded women from being prosecuted. Thus, the government discriminated against him because he was a male. The Fourth Court of Appeals agreed with Mr. Aparicio that OLS’s policies violated the Equal Protection Clause, but the Court of Criminal Appeals reversed that decision. Mr. Aparicio filed a writ of certiorari to the Supreme Court challenging the CCA’s decision, and TCDLA filed an amicus brief in support of that petition
Click her for the Amicus Brief No. 24-6057
TCDLA Amicus Committee List
Click here for TCDLA's Amicus Brief Bank
Inger Chandler Bio:
Inger Chandler obtained her undergraduate degree from Mississippi University for Women in English (1995) and her law degree from South Texas College of Law (2003). Inger was employed as a prosecutor with the Harris County District Attorney’s Office from 2003 through 2016. She spent her last three and a half years there serving as Chief of the Conviction Integrity Unit, where she litigated post-conviction requests for DNA testing, investigated claims of actual innocence, and handled mass-notification case reviews. Following her career at the Harris County District Attorney’s Office, Inger opened a solo criminal defense practice in Houston.Inger has spoken at numerous conferences about wrongful convictions/actual innocence, Brady evidence, and flawed forensics. In 2018, she obtained her Board Certification in Criminal Law from the Texas Board of Legal Specialization.
Angelica Cogliano Bio:
Angelica Cogliano is an attorney in Austin, TX, where she practices criminal defense exclusively, and has done so since she graduated from Emory Law School in 2016. Prior to attending Emory Law School, Ms. Cogliano earned her undergraduate degree from Cornell University and Master's degree from New York University. Following her internship with the Dekalb County Public Defender's office and her fellowship with the Texas Defender Service, Ms. Cogliano started the Cogliano Law Firm in Austin, Texas, where she currently practices and is of counsel to the Law Offices of E.G. Morris. She is committed to indigent defense, maintaining a significant amount of appointed work on her caseload, and serving on the NACDL Public Defense Committee and the NACDL Texas COVID-19 Detention Order Committee. Additionally, Ms. Cogliano is a member of the Texas Criminal Defense Lawyers Association (TCDLA), for whom she serves on the TCDLAAmicus Curiae Committee, and mentors individuals through the Future Indigent Defense Leaders program run by TCDLA and the Texas Indigent Defense Commission. Ms. Cogliano is invested in her trial work, having tried 15 trials to verdict either as first or second chair during her first three years of practicing law. She graduated the prestigious Trial Lawyers College in 2019, and has since served on their Alumni Board of Directors.
Kyle Therrian Bio:
Kyle practices criminal defense statewide with a focus on state criminal appellate law and federal criminal defense. His office, Rosenthal Kalabus & Therrian, is located in McKinney, Texas, and is Collin County's largest criminal defense firm. Kyle serves as Chair of TCDLA's Amicus Committee, Chair of Texas Criminal Defense Lawyers Education Institute, and is the author of the Significant Decisions Report. Locally he also serves as president of the Collin County Criminal Defense Lawyers Association. He enjoys being a resource for lawyers in need of quick answers to tricky legal problems is always happy to take a call from a colleague in need
Aaron Diaz Bio:
Aaron Diaz is a Visiting Clinical Assistant Professor of Law with the St. Mary’s Law School Criminal Justice Clinic. Before joining the criminal justice clinic, Aaron spent six years working with the Goldstein & Orr law firm in San Antonio, Texas. Prior to law school, Aaron spent over a decade as a paralegal working for a criminal defense firm in South Texas and various State agencies. During that time, Aaron received his Bachelor of Science degree in Criminal Justice from the University of Texas Pan-American, and a Master of Arts degree in Legal Studies from Texas State University. Aaron graduated from St. Mary’s University School of Law, cum laude, in May of 2020. Since becoming licensed, Aaron has solely practiced juvenile and adult criminal defense, representing clients charged with misdemeanor and felony crimes. He has also handled State and federal appeals and post-conviction writs of habeas corpus cases. Aaron is currently on the Texas Criminal Defense Lawyers Association Board of Directors and serves as Vice Chair of the Amicus Committee. He is also a member of the San Antonio Criminal Defense Lawyers Association.
No. 24-6057
IN THE Supreme Court of the United States
LUIS ALFREDO APARICIO, Petitioner, v. THE STATE OF TEXAS, Respondent.
On Petition for a Writ of Certiorari from the Court of Criminal Appeals of Texas
AMICUS CURIAE BRIEF OF THE TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION IN SUPPORT OF PETITIONER
INGER CHANDLER
1207 S. Shepherd Dr. Houston, TX 77019 (713) 970-1060 inger@ingerchandlerlaw.com
KYLE THERRIAN
ROSENTHAL, KALABUS & THERRIAN 7200 State Highway 121 Ste 400 McKinney, TX 75070 (972) 369-0577 kyle@texasdefensefirm.com
DAVID GUINN
Counsel of Record HURLEY, GUINN, SINGH & VONGONTEN 1805 13th Street Lubbock, TX 79401 (806) 771-0700 david@hurleyguinn.com
ANGELICA COGLIANO COGLIANO & MIRÓ 505 West 12th St. Austin, TX 78701 (512) 375-3303 angelica@coglianolaw.com
AARON M. DIAZ
ST. MARY’S UNIVERSITY SCHOOL OF LAW 2507 NW 36th Street San Antonio, TX 78228 (210) 436-3840 adiaz39@stmarytx.edu
Counsel for Texas Criminal Defense Lawyers Association
I. By requiring proof of evil intent to establish a prima facie case of discrimination, the TCCA unduly shifts the State’s burden onto the individual
II. Equal protection rights will be significantly weakened should the TCCA’s additional condition precedent be allowed to stand ........................................ 7
III. A State Court departure from Supreme Court Precedent Frustrates the Practice of Criminal Law and the Sanctity of the Judicial
CASES
TABLE OF AUTHORITIES
Page(s)
Ex parte Aparicio, No. PD-0461-23, 2024 WL 4446878 (Tex. Crim. App. Oct. 9, 2024) ....................... 3, 4, 5, 6
Finley v. State, No. PD-0634-22, 2024 WL 4897056 (Crim. App. Nov. 27, 2024) ....................... 11
Miss. Univ. for Women v. Hogan, 458 U.S. 718, 102 S. Ct. 3331 (1982) ........ 7, 8
Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742 (1979) ........... 3
Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620 (1996) ......... 10
U.S. v. Virginia, 518 U.S. 515 (1996) ................................... 8
United States v. Windsor, 570 U.S. 744, 133 S. Ct. 2675 (2013) ........ 10
OTHER AUTHORITIES
Section VI- proving discriminationintentional discrimination. Civil Rights Division, | United States Department of Justice. (2021, February 3). https://www. justice.gov/crt/fcs/T6Manual6................... 6
INTEREST OF AMICUS CURIAE1
The Texas Criminal Defense Lawyers Association (TCDLA) is a non-profit voluntary membership organization dedicated to the protection of those individual rights guaranteed by the state and federal constitutions and to the constant improvement of the administration of criminal justice in the State of Texas.
Founded in 1971, TCDLA currently has a membership of over 3,400 and offers a statewide forum for criminal defense counsel, provides a voice in the state legislative process in support of procedural fairness in criminal defense and forfeiture cases, and assists the courts by acting as amicus curiae.
Neither TCDLA nor any of the attorneys representing TCDLA have received any fee or other compensation for preparing this brief, which complies with all applicable provisions of the Supreme Court Rules, and copies have been served on all parties.
SUMMARY OF THE ARGUMENT
The right to equal protection under the law applies broadly to all state action. In the context of the criminal justice system, equal protection means equal treatment by the government. The State may not impose the burden of criminal prosecution upon a man that it would not impose upon a similarly situated woman. Such selective enforcement falls within the plain-text admonitions of the Equal Protection Clause and is thus presumptively unconstitutional. At a
1 Counsel for Amicus has conferred with both counsel for petitioner and counsel for respondent and neither party opposes the filing of this brief. No counsel or party made a monetary contribution intended to fund the preparation or submission of this brief nor did they participate in its drafting. Id.
minimum, the Clause protects against the inequality of a prosecution based on sex. The text, history, and tradition of the Equal Protection Clause offer no support for the arbitrary application of state power to exclusively prosecute men for violations of the State’s criminal trespass laws.
In 2021, Texas Governor Greg Abbott took “historic action” by launching Operation Lone Star (“OLS”), a multi-billion-dollar initiative to address the “record levels of illegal immigrants and deadly drugs” pouring into Texas due to “reckless open border policies.” Abbott deployed the Texas National Guard and Texas Department of Public Safety (“TDPS”) to the southern border and funded detention facilities for male arrestees. At the direction of TDPS Captain Betancourt, “single adult males,” were arrested and charged with misdemeanor criminal trespass if found on the private property of a cooperating landowner. Women found trespassing were neither arrested nor charged but released to the custody of border patrol.
The Texas Court of Criminal Appeals (“TCCA”) found no fault with the State’s decision to only arrest and prosecute trespassing males, concluding that the policy lacked “invidious discrimination” and proof that Aparicio is being punished because he is male. In holding that a prima facie case of discrimination under the equal protection clause can only be made if the discriminatory purpose is driven by animus, the TCCA upended this Court’s longstanding jurisprudence regarding discrimination under the equal protection clause. Allowing this interpretation to stand would condone widespread sex discrimination in the criminal justice system and have a far-reaching impact on the practice of criminal law.
ARGUMENT
Luis Alfredo Aparicio asked a Texas court to determine whether the government improperly discriminated against him because of his gender. The Texas Court of Criminal Appeals (TCCA) ultimately decided that issue against him. It held that the State’s explicit policy of arresting and prosecuting only males caught trespassing in mixed-gender groups is simply not discriminatory. In reaching a result contrary to assumption, the TCCA created a requirement of invidious government intent in the context of unequal gender-based enforcement of a law. The corollary of this requirement is what flowed from the CCA’s definition of the concept of invidiousness: to do something “with an evil eye and an unequal hand.” Ex parte Aparicio, No. PD-0461-23, 2024 WL 4446878, at *22 (Crim. App. Oct. 9, 2024). The TCCA’s evil intent requirement has no basis in this Court’s Equal Protection jurisprudence.
Amicus contends that the TCCA’s analysis went awry in its analysis of this Court’s opinion in Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742 (1979).2 Specifically, the TCCA’s opinion results from a disconnect between what this Court meant by “invidious” and what most would assume is meant by “invidious.” The Parham Court gave the term invidious a specialized legal meaning. The paragraph preceding its usage shows this:
Not all legislation, however, is entitled to the same presumption of validity. The presumption is not present when a State has enacted legislation whose purpose or effect is to create
2 Of note are the distinctions between Parham, a disparate impact case involving a non-protected class, and the instant case, an unequal enforcement case involving a protected class.
classes based upon racial criteria, since racial classifications, in a constitutional sense, are inherently "suspect." And the presumption of statutory validity may also be undermined when a State has enacted legislation creating classes based upon certain other immutable human attributes.
Id. at 351 (citations omitted). The sentence that follows is “In the absence of invidious discrimination, however . . . [no equal protection problem].” In this grammatical context, “invidious discrimination” means something among the class of examples listed above— things involving intentional sorting. The TCCA erroneously takes invidious to mean evil intent. Because the Parham Court frames this discussion as the threshold consideration before applying scrutiny to a law or governmental policy, the TCCA’s misinterpretation creates a new condition precedent to challenging unequal unconstitutional treatment. In this regard, Amicus agrees with Judge Keel below:
I write separately because the majority opinion jeopardizes future claims of selective prosecution in Texas. Contrary to its understanding, the discriminatory-purpose element of selective-prosecution claims does not depend on hostility or bad faith, and discrimination is not justified by more discrimination. I respectfully dissent.
Aparicio, at *42-43.
To this extent, Amicus builds upon what Judge Keel began.
I. By requiring proof of evil intent to establish a prima facie case of discrimination, the TCCA unduly shifts the State’s burden onto the individual.
The TCCA determined that Mr. Aparicio did not make a prima facie case of discrimination because there was no evidence that the prosecutorial policy was motivated by a discriminatory purpose. The TCCA’s misunderstanding of what that means dictated the thrust of the ensuing analysis: Mr. Aparicio could not prove the government acted with evil intent and his claim is therefore poured out. Flipping the standard on its head, the TCCA expressed a plausible explanation for the government’s unequal treatment as a reason not to engage in equal protection scrutiny. The TCCA tied its analysis together with a remark that the State’s policy of prosecuting only men was more likely due to “the necessities of reality during an ongoing emergency (limited resources in the face of “sheer numbers”), rather than gender discrimination.” Aparicio, at *31. But this age-old governmental problem of limited resources and unlimited demand has never been a sufficient justification to reject a claim for equal protection, let alone a basis to not even engage in the analysis.
Whether the government harbors a discriminatory purpose does not depend on bad faith. Discrimination, in the context of this case, means a decision to prosecute based in part on an arbitrary classification such as gender. This is how the U.S. Department of Justice explains it in their Legal Manual: Some assume that the intentional use of race should be carefully scrutinized only when the intent is to harm a group or an individual defined by race, color, or national origin. That
is not true: the Supreme Court in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989), and Adarand Constructors, Inc., v. Pena, 515 U.S. 200, 226 (1995), established that any intentional use of race, whether for malicious or benign motives, is subject to the most careful judicial scrutiny. Accordingly, the record need not contain evidence of “bad faith, ill will or any evil motive on the part of the [recipient].”
Williams v. City of Dothan, 745 F.2d 1406, 1414 (11th Cir. 1984).3
Judge Keel agrees in her dissent: “[g]ood or bad faith may be relevant to a state-interest justification for the discriminatory policies. See, e.g., Fisher, 570 U.S. at 312-14. But discriminatory purpose does not depend on bad faith.” Aparicio, at *43 (Keel, J., Dissenting). The purported evidence cited by the majority opinion – the jail capacity limitations, large numbers of migrants crossing the border, and limited resources available during an ongoing emergency – was offered for, and is relevant to, the State’s attempted justification for their policy. Rather than analyzing the State’s arguments in the context of the proper level of scrutiny, the TCCA uses it to shut the door to any consideration. The blame accordingly flowed to Mr. Aparicio for not proving the impossible—that the government meant to be evil.
This new standard relieves the State of its responsibility to justify facially discriminatory policies by shifting the burden of proving “why” onto the
3 Section VI- proving discrimination- intentional discrimination. Civil Rights Division,| United States Department of Justice. (2021, February 3). https://www.justice.gov/crt/fcs/T6Manual6
individual. It is unfairly burdensome to require an individual to prove that gender, race, or any other classification was the complete or even primary motivating factor. Government institutions usually act based on a variety of motives. Different legislators have different personal motivations. Attempting to aggregate those motives into one general government intent is a perilous enterprise. With the TCCA’s newly defined “invidious discrimination” as the triggering mechanism, the State easily avoids the heightened scrutiny afforded protected classes.4
II. Equal protection rights will be significantly weakened should the TCCA’s additional condition precedent be allowed to stand.
Judge Keel rightfully laments the future of equal protection and selective prosecution claims in Texas should this new framework created by the TCCA stand. It allows State actors to treat classes of individuals differently so long as it is never overtly specified that they are doing so because of animus and hatred for that class. A local sheriff could decide that only male attorneys may visit their detained clients inperson, so long as he expresses concerns for safety and avoids stating anything disdainful about women. A prosecutor could strike all white jurors based on their race, so long as that choice wasn’t grounded in their own repugnant views about white people. In fact, neither of these people would even be called upon to
4 Gender-based discrimination triggers heightened or intermediate scrutiny—a showing of “important governmental objectives” and means “substantially related to the achievement of those objectives.” Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S. Ct. 3331, 3336 (1982).
justify their actions without a prima facie case showing their malicious intent first being made.
This new requirement that the discriminatorypurpose element of an equal protection claim be based on hostility or oppression would open doors to discrimination based solely on negative stereotypes or presumptions. For example, the state could choose to only prosecute white men for the offense of sexual assault, women for shoplifting, black men for drug possession. Discrimination for the purported benefit of another would be resurrected. Mississippi University for Women could return to its original mission of providing higher education and training for women –to the exclusion of men. Mississippi University for Women v. Hogan, 458 U.S. 718 (1982). Virginia Military Institute can return to an all-male military school and produce “citizen-soldiers … men prepared for leadership in civilian life and in military service.”
U.S. v. Virginia, 518 U.S. 515 (1996). The TCCA’s implicit permission to discriminate– as long as you’re doing it for the right reason – would wreak havoc on our system of justice and our constitutionally protected freedoms.
Additionally, government actors are often in control of the scenarios giving rise to a justification they would articulate. They can avoid the imputation of malicious intent by creating circumstances to justify their own discriminatory actions. This is especially true in Mr. Aparicio’s case. If jails full of migrant men are too full to accept migrant women, one must ask a question with an obvious answer: how did it get that way? The size of the jail, the facilities acceptable for housing misdemeanants, and the amount of a person’s bond are all decisions made by the government. Accepting this much explanation without an articulation of why
resources should be allocated based on gender rather than other factors like the strength of the prosecution, the defendant’s role, or the egregiousness of conduct is asking too little. The Government’s own-created necessity, and its arbitrary response to it, has never before served as a justification to alter the black letter understanding of the people’s protections.
III. A State Court departure from Supreme Court Precedent Frustrates the Practice of Criminal Law and the Sanctity of the Judicial System.
The decision to depart from this Court’s precedent and enforce the law in an arbitrary and discriminatory manner has a deleterious effect on judicial economy and finality. More cases will require pretrial and postconviction litigation to root out and expose true discriminatory purposes and preserve error, increasing costs and efficiency. The decision to prosecute based on class characteristics, absent overt and malicious discrimination, will lead to inconsistent enforcement of the law. Not only will enforcement vary across jurisdictions, but it could vary between district attorneys’ offices and law enforcement agencies, frustrating the adjudicatory process for practitioners and stakeholders.
Allowing a State high court to graft onto this Court’s precedent additional requirements that arise from arguments rejected by this Court for decades would exacerbate disparities in constitutional law across the country. This Court is the final arbiter of the United States Constitution, and its equal protection jurisprudence is long-standing. If States are allowed to alter the analysis required, citizens – and the lawyers representing them – lose the ability to rely on this Court’s precedent.
Finally, requiring a finding of animus calls upon the courts to morally condemn government actors and lawmakers before a citizen can find relief from discrimination. The gravity of lodging and adjudicating such a charge is an unfair obstacle. The avoidance of hatred, animosity, and bias in the making of law and policy is not only a constitutional obligation, it is a moral duty as well. This is part of what Justice Scalia called “our moral heritage.” Romer v. Evans, 517 U.S. 620, 644 (1996) (Scalia, J., dissenting). For a court to accuse lawmakers of violating this duty is a serious charge. In a state where criminal court judges run for office in partisan elections, there is fertile ground for abuse. An incentive for political agendas to dictate the selective enforcement of law and erode fundamental civil rights cannot stand lest we are willing to acquiesce when the winds of change that would reverse our course.
Even when such a serious judicial declaration is warranted and courage prevails, unnecessarily lodging and adjudicating evil governmental motives has a broader impact. As Chief Justice Roberts suggested in his dissenting opinion in Windsor, such a declaration almost inevitably “tar[s] the political branches with the brush of bigotry.” United States v. Windsor, 570 U.S. 744, 776 (2013) (Roberts, C.J., dissenting). Judicial declarations of animus are likely to exacerbate the animosity that infects contemporary American politics, damaging the democratic system that the Constitution is designed to protect.
CONCLUSION
This is a difficult time, but our dilemmas are certainly not more difficult than ones we have encountered before. What flows from this basic premise is what the Court of Criminal Appeals got correct in the month after issuing its opinion in Mr. Aparicio’s case: “There is no general exception to [Confrontation] right[s] during other global events such as wars and natural disasters. We believe our founders would not so generally dispense with the very rights—which are divine in nature—in which they risked everything to enshrine.” Finley v. State, No. PD-0634-22, 2024 Tex. Crim. App. 2024 WL 4897056, at *20 (Crim. App. Nov. 27, 2024). We know this is no less true in the context of equal protection under the law, but it is right now in Texas. This Court should grant certiorari to correct disparities in the law and under the law.
PRAYER
The Court should grant the petition and set the case for argument.
Respectfully submitted,
INGER CHANDLER
1207 S. Shepherd Dr. Houston, TX 77019 (713) 970-1060
inger@ingerchandlerlaw.com
KYLE THERRIAN ROSENTHAL, KALABUS & THERRIAN
7200 State Highway 121 Ste 400 McKinney, TX 75070 (972) 369-0577 kyle@texasdefensefirm.com
DAVID GUINN Counsel of Record HURLEY, GUINN, SINGH & VONGONTEN 1805 13th Street Lubbock, TX 79401 (806) 771-0700 david@hurleyguinn.com
ANGELICA COGLIANO COGLIANO & MIRÓ 505 West 12th St. Austin, TX 78701 (512) 375-3303 angelica@coglianolaw.com
AARON M. DIAZ ST. MARY’S UNIVERSITY SCHOOL OF LAW 2507 NW 36th Street San Antonio, TX 78228 (210) 436-3840 adiaz39@stmarytx.edu
Counsel for Texas Criminal Defense Lawyers Association
MISCELLANEOUS
