Requests for Public Information~ with holding information from a parent..........

These are college seniors. Among the institutions whose students were surveyed: Dartmouth, Yale, Harvard, the University of California at Berkeley, the University of North Carolina at Chapel Hill, and the University of Michigan.

It should go without saying that in a republic, civic education is a fundamental necessity. If even our elite college graduates have no idea what the First Amendment does, the country is in trouble.



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Parents' Bill of Rights for Texas Public Schools

I believe that teachers and parents must work together to educate our children. Several years ago, I passed a Parents' Bill of Rights and Responsibilities to make sure that parents can participate in decisions made concerning their children in our public schools.

These rules, which have been modified several times since their original passage, are part of the Texas Education Code and as such, they must be observed by every Texas public school, including charter schools.

Please note that parents have other rights that are not specifically in this list. Local school boards also have policies that may include additional rights and procedures, as long they do not conflict with those listed below.

It is always best to bring concerns to the attention of local administrators and school board members before enlisting help from the state. If you have a problem with your school, talk the the principal or the person the principal designates. If you cannot resolve the situation at the school, contact the district superintendant's office. Ask how you can bring this issue to the attention of the district administration. If you still are unable to resolve the issue, your school board members are the local officials responsible for setting policy for the district. Your problem should be brought to your board member's attention.

If all attempts to resolve the problem fail, and you believe that either the Parents' Bill of Rights or another education law is being violated, you can contact the Texas Education Agency for guidance. They are the Texas agency responsible to assuring that school districts and charter schools follow Texas education laws.

Here is the current version of the Texas Parents' Bill of Rights and Responsibilities, including changes made during the 2005-06 legislative sessions:

Texas Parent's Bill of Rights and Responsibilities
(Texas Education Code, Chapter 26)

Purpose

(a) Parents are partners with educators, administrators, and school district boards of trustees in their children's education. Parents shall be encouraged to actively participate in creating and implementing educational programs for their children.

(b) The rights listed in this chapter are not exclusive. This chapter does not limit a parent's rights under other law.

(c) Unless otherwise provided by law, a board of trustees, administrator, educator, or other person may not limit parental rights.

(d) Each board of trustees shall provide for procedures to consider complaints that a parent's right has been denied.

(e) Each board of trustees shall cooperate in the establishment of ongoing operations of at least one parent-teacher organization at each school in the district to promote parental involvement in school activities.

Definition

In this chapter, "parent" includes a person standing in parental relation. The term does not include a person as to whom the parent-child relationship has been terminated or a person not entitled to possession of or access to a child under a court order. Except as provided by federal law, all rights of a parent under Title 2 of this code [the part of the Texas Education Code that pertains to public schools] and all educational rights under Section 151.001(a)(10), Family Code, shall be exercised by a student who is 18 years of age or older or whose disabilities of minority have been removed for general purposes under Chapter 31, Family Code, unless the student has been determined to be incompetent or the student's rights have been otherwise restricted by a court order.

Rights Concerning Academic Programs

(a) A parent is entitled to:

(1) petition the board of trustees designating the school in the district that the parent's child will attend, as provided by Section 25.033;

(2) reasonable access to the school principal, or to a designated administrator with the authority to reassign a student, to request a change in the class or teacher to which the parent's child has been assigned, if the reassignment or change would not affect the assignment or reassignment of another student;

(3) request, with the expectation that the request will not be unreasonably denied:

(A) the addition of a specific academic class in the course of study of the parent's child in keeping with the required curriculum if sufficient interest is shown in the addition of the class to make it economically practical to offer the class;

(B) that the parent's child be permitted to attend a class for credit above the child's grade level, whether in the child's school or another school, unless the board or its designated representative expects that the child cannot perform satisfactorily in the class; or

(C) that the parent's child be permitted to graduate from high school earlier than the child would normally graduate, if the child completes each course required for graduation; and

(4) have a child who graduates early as provided by Subdivision (3)(C) participate in graduation ceremonies at the time the child graduates.

(b) The decision of the board of trustees concerning a request described by Subsection (a)(2) or (3) is final and may not be appealed.

Access to Student Records

A parent is entitled to access to all written records of a school district concerning the parent's child, including:

(1) attendance records;

(2) test scores;

(3) grades;

(4) disciplinary records;

(5) counseling records;

(6) psychological records;

(7) applications for admission;

(8) health and immunization information;

(9) teacher and counselor evaluations; and

(10) reports of behavioral patterns.

Access to State Assessments

Except as provided by Section 39.023(e), a parent is entitled to access to a copy of each state assessment instrument administered under Section 39.023 to the parent's child.

Access to Teaching Materials

(a) A parent is entitled to:

(1) review all teaching materials, textbooks, and other teaching aids used in the classroom of the parent's child; and

(2) review each test administered to the parent's child after the test is administered.

(b) A school district shall make teaching materials and tests readily available for review by parents. The district may specify reasonable hours for review.

(c) A student's parent is entitled to request that the school district or open-enrollment charter school the student attends allow the student to take home any textbook used by the student. Subject to the availability of a textbook, the district or school shall honor the request. A student who takes home a textbook must return the textbook to school at the beginning of the next school day if requested to do so by the student's teacher. In this subsection, "textbook" has the meaning assigned by Section 31.002.

Access to Board Meetings

(a) A parent is entitled to complete access to any meeting of the board of trustees of the school district, other than a closed meeting held in compliance with Subchapters D and E, Chapter 551, Government Code.

(b) A board of trustees of a school district must hold each public meeting of the board within the boundaries of the district except as required by law or except to hold a joint meeting with another district or with another governmental entity, as defined by Section 2051.041, Government Code, if the boundaries of the governmental entity are in whole or in part within the boundaries of the district. All public meetings must comply with Chapter 551, Government Code.

Right to Full Information Concerning Student

(a) A parent is entitled to full information regarding the school activities of a parent's child except as provided by Section 38.004.

(b) An attempt by any school district employee to encourage or coerce a child to withhold information from the child's parent is grounds for discipline under Section 21.104, 21.156, or 21.211, as applicable.

Right to Information Concerning Special Education and
Education of Students with Learning Disabilities

(a) The agency shall produce and provide to school districts sufficient copies of a comprehensive, easily understood document that explains the process by which an individualized education program is developed for a student in a special education program and the rights and responsibilities of a parent concerning the process. The document must include information a parent needs to effectively participate in an admission, review, and dismissal committee meeting for the parent's child.

(b) The agency will ensure that each school district provides the document required under this section to the parent as provided by 20 U.S.C. Section 1415(b):

(1) as soon as practicable after a child is referred to determine the child's eligibility for admission into the district's special education program, but at least five school days before the date of the initial meeting of the admission, review, and dismissal committee; and

(2) at any other time on reasonable request of the child's parent.

(c) The agency shall produce and provide to school districts a written explanation of the options and requirements for providing assistance to students who have learning difficulties or who need or may need special education. The explanation must state that a parent is entitled at any time to request an evaluation of the parent's child for special education services under Section 29.004. Each school year, each district shall provide the written explanation to a parent of each district student by including the explanation in the student handbook or by another means.

Requests for Public Information

(a) A school district or open-enrollment charter school that seeks to withhold information from a parent who has requested public information relating to the parent's child under Chapter 552, Government Code, and that files suit as described by Section 552.324, Government Code, to challenge a decision by the attorney general issued under Subchapter G, Chapter 552, Government Code, must bring the suit not later than the 30th calendar day after the date the school district or open-enrollment charter school receives the decision of the attorney general being challenged.

(b) A court shall grant a suit described by Subsection (a) precedence over other pending matters to ensure prompt resolution of the subject matter of the suit.

(c) Notwithstanding any other law, a school district or open-enrollment charter school may not appeal the decision of a court in a suit filed under Subsection (a). This subsection does not affect the right of a parent to appeal the decision.

(d) If the school district or open-enrollment charter school does not bring suit within the period established by Subsection (a), the school district or open-enrollment charter school shall comply with the decision of the attorney general.

(e) A school district or open-enrollment charter school that receives a request from a parent for public information relating to the parent's child shall comply with Chapter 552, Government Code. If an earlier deadline for bringing suit is established under Chapter 552, Government Code, Subsection (a) does not apply. This section does not affect the earlier deadline for purposes of Section 552.353(b)(3) for a suit brought by an officer for public information.

Consent Required for Certain Activities

(a) An employee of a school district must obtain the written consent of a child's parent before the employee may:

(1) conduct a psychological examination, test, or treatment, unless the examination, test, or treatment is required under Section 38.004 or state or federal law regarding requirements for special education; or

(2) make or authorize the making of a videotape of a child or record or authorize the recording of a child's voice.

(b) An employee of a school district is not required to obtain the consent of a child's parent before the employee may make a videotape of a child or authorize the recording of a child's voice if the videotape or voice recording is to be used only for:

(1) purposes of safety, including the maintenance of order and discipline in common areas of the school or on school buses;

(2) a purpose related to a cocurricular or extracurricular activity;

(3) a purpose related to regular classroom instruction; or

(4) media coverage of the school.

Refusal of Psychiatric or Psychological Treatment of Child
as Basis of Report of Neglect

(a) In this section, "psychotropic drug" has the meaning assigned by Section 261.111, Family Code.

(b) An employee of a school district may not use or threaten to use the refusal of a parent, guardian, or managing or possessory conservator of a child to administer or consent to the administration of a psychotropic drug to the child, or to consent to any other psychiatric or psychological testing or treatment of the child, as the sole basis for making a report of neglect of the child under Subchapter B, Chapter 261, Family Code, unless the employee has cause to believe that the refusal:

(1) presents a substantial risk of death, disfigurement, or bodily injury to the child; or

(2) has resulted in an observable and material impairment to the growth, development, or functioning of the child.

Exemption From Instruction

(a) A parent is entitled to remove the parent's child temporarily from a class or other school activity that conflicts with the parent's religious or moral beliefs if the parent presents or delivers to the teacher of the parent's child a written statement authorizing the removal of the child from the class or other school activity. A parent is not entitled to remove the parent's child from a class or other school activity to avoid a test or to prevent the child from taking a subject for an entire semester.

(b) This section does not exempt a child from satisfying grade level or graduation requirements in a manner acceptable to the school district and the agency.

Complaints

The board of trustees of each school district shall adopt a grievance procedure under which the board shall address each complaint that the board receives concerning violation of a right guaranteed by this chapter.

Fee for Copies

The agency or a school district may charge a reasonable fee in accordance with Subchapter F, Chapter 552, Government Code, for copies of materials provided to a parent under this chapter.

Student Directory Information

(a) A school district shall provide to the parent of each district student at the beginning of each school year or on enrollment of the student after the beginning of a school year:

(1) a written explanation of the provisions of the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g), regarding the release of directory information about the student; and

(2) written notice of the right of the parent to object to the release of directory information about the student under the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g).

(b) The notice required by Subsection (a)(2) must contain:

(1) the following statement in boldface type that is 14-point or larger:

"Certain information about district students is considered directory information and will be released to anyone who follows the procedures for requesting the information unless the parent or guardian objects to the release of the directory information about the student.

If you do not want [insert name of school district] to disclose directory information from your child's education records without your prior written consent, you must notify the district in writing by [insert date].

[Insert name of school district] has designated the following information as directory information: [Here a school district must include any directory information it chooses to designate as directory information for the district, such as a student's name, address, telephone listing, electronic mail address, photograph, degrees, honors and awards received, date and place of birth, major field of study, dates of attendance, grade level, most recent educational institution attended, and participation in officially recognized activities and sports, and the weight and height of members of athletic teams.]";

(2) a form, such as a check-off list or similar mechanism, that:

(A) immediately follows, on the same page or the next page, the statement required under Subdivision (1); and

(B) allows a parent to record:

(i) the parent's objection to the release of all directory information or one or more specific categories of directory information if district policy permits the parent to object to one or more specific categories of directory information;

(ii) the parent's objection to the release of a secondary student's name, address, and telephone number to a military recruiter or institution of higher education; and

(iii) the parent's consent to the release of one or more specific categories of directory information for a limited school-sponsored purpose if such purpose has been designated by the district and is specifically identified, such as for a student directory, student yearbook, or district publication; and

(3) a statement that federal law requires districts receiving assistance under the Elementary and Secondary Education Act of 1965 (20 U.S.C. Section 6301 et seq.) to provide a military recruiter or an institution of higher education, on request, with the name, address, and telephone number of a secondary student unless the parent has advised the district that the parent does not want the student's information disclosed without the parent's prior written consent.

(c) A school district may designate as directory information any or all information defined as directory information by the Family Educational Rights and Privacy Act of 1974 (20 U.S.C. Section 1232g). Directory information under that Act that is not designated by a district as directory information for that district is excepted from disclosure by the district under Chapter 552, Government Code.

(d) Directory information consented to by a parent for use only for a limited school-sponsored purpose, such as for a student directory, student yearbook, or school district publication, if any such purpose has been designated by the district, remains otherwise confidential and may not be released under Chapter 552, Government Code.

The source for all information on this page is the Texas Legislature Online, the web site of the Texas Legislature. The information was downloaded and posted initially on November 22, 2003, and revised most recently on January 15, 2007.

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1/15/07

Judicial process........you have heard of it ......right?

N THE 291st CRIMINAL DISTRICT COURT
DALLAS COUNTY, TEXAS





THE STATE OF TEXAS



v.



DAMONS LOUISE








CRIMINAL NUMBER: F0283772
F0202033








DEFENDANT LEWIS’S MOTION AND INCORPORATED
MEMORANDUM FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE



Defendant DAMONS LOUISE (“Defendant ”) hereby moves this Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, to order the government to inquire about and make the following disclosures.

A. SPECIFIC BRADY REQUESTS

The Defendant respectfully requests that the Court order the government to inquire about and to disclose all materials, information, photographs, videos, recordings, records, notes, reports, electronic mail, communication and statements (herein referred to as “information”) known to the Government/State or which may become known, or which through due diligence may be learned from the investigating officers or the witnesses or persons having knowledge of this case, which is exculpatory in nature or favorable to Defendant or may lead to exculpatory or favorable material regarding either guilt or punishment. This includes, but is not limited to the following:

1. Information tending to indicate that Defendant is not guilty of the offenses alleged in the Indictments.

2. Information showing Defendant’s reputation for honesty, integrity, and/or trustworthiness.

3. Information showing the reputation for honesty, integrity, and/or trustworthiness, and/or any criminal record of any witness called by the State, including any complaining witness.

4. Names of any individuals who made an arguably favorable statement about the Defendant, or who indicated to law enforcement that Defendant is not guilty of the crimes alleged in the Indictments, or that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments.

5. Information which arguably could be helpful or useful to the defense in detracting from the probative force of the government’s evidence, including impeachment evidence, or which arguably could lead to such information, including information that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments. This request includes, but is not limited to, the following information, regarding any potential witness, informant or any government agent who has been involved in the investigation of this case:

(a) requests or statements by government agents or employees to any individual or corporation regarding the payment of defendants’ legal fees or expenses;

(b) prior convictions, arrests, misconduct, wrongs or bad acts;

(c) prior or subsequent inconsistent statements;

(d) instructions not to discuss the case with defense counsel;

(e) the mental, emotional, and physical history of Defendant, or any witness,

(f) the use of any lie detector or polygraph tests on any witness and the results;

(g) the use of narcotics or other controlled substances or alcohol;

(h) defect or deficiency of character for truthfulness, including but not limited to the complainant and officers involved in the investigation/arrest of Defendant;

(i) partiality, prejudice, bias, motive, interest or corruption;

(j) any defect or deficiency of capacity in any prospective witness to observe, remember or recount events;

(k) the existence and identification of each occasion on which each witness who was or is an informer, accomplice, or expert, has testified before any court, grand jury, or other tribunal or body;

(l) any benefit to individuals whatsoever in exchange for their cooperation, assistance or testimony, and any incentives paid, promised or discussed with the witness and the witness’s prior history of cooperation with law enforcement;

(m) a threat to prosecute if cooperation was not forthcoming;

(n)a promise or suggestion of leniency, compensation, assurance not to prosecute, or representations with respect to any uncharged misconduct;

(o) the immigration status of any potential government witness or informant who is not a United States citizen;

(p) any probation, parole, deferred adjudication, or deferred government or custodial status;

(q) any pending or potential criminal, civil or administrative investigations, legal disputes or transactions over which the government has real, apparent or perceived influence which could be brought against the witness or friends or relatives of the witness;



B. ARGUMENT

1. Disclosure of Materials.

The settled principles in Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S. 419 (1995), instruct that the government may not suppress evidence favorable to a defendant either as direct or impeaching evidence. All documents and information which are exculpatory must be provided to the defense.

Courts have noted that the test is not whether the government attorneys believe the material to be favorable to the defense. Rather, it is whether the material “could fairly be construed as favorable to the defendant and material to the issue of guilt or punishment. . . .” United States v. Partin, 320 F. Supp. 285 ( E.D. La. 1970). Doubts as to whether certain items of evidence or types of information could be construed in the defense’s favor should be resolved in favor of their production to the defense. United States v. Perkins, 383 F. Supp. 922, 930 (N.D. Ohio 1974). Since material containing leads to possible exculpatory evidence must also be produced under Brady, the evidence itself need not be admissible at trial.

All information relating to the credibility of a witness clearly must be provided to the Defendant. United States v. Bagley, 473 U.S. 667 (1985). Under Rule 608(b) of the Fed. R. Evid., the court has discretion to permit a defendant to cross-examine a witness as to specific instances of misconduct -- so called bad acts. The purpose of such testimony is specifically to attack the witness’ character; therefore, the government should be ordered to disclose to the defense any behavior of government witnesses that might arguably constitute such bad acts.

Similarly, the government has an obligation to disclose any and all consideration which is held out to a witness, or which the witness objectively hopes for or anticipates, because such consideration directly gives rise to an inference of interest. United States v. Mayer, 556 F.2d 245 (5 th Cir. 1977). A defendant is also entitled to be advised of any matter which might cause a witness to color his testimony in favor of the government out of fear or interest in self-preservation. Thus, the government must disclose both the stick and the carrot. United States v. Sutton, 542 F.2d 1239 (4 th Cir. 1976). If the government possesses any information which might reveal that anyone became a witness in this case because of any pressure applied to him by any other federal law enforcement or regulatory body, the government should be required to disclose this information.

The evidence of any such representations, which have been made by the government or which the government will make at any future time, is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution; and the withholding of any such evidence constitutes a denial to a defendant herein of his constitutionally protected rights to due process and fundamental fairness in the criminal proceedings brought against him. Giglio v. United States, 405 U.S. 150 (1972); Brady, 373 U.S. at 85. Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the government may call to testify against the defendant, Williams v. Dutton 400 F.2d 797 (5 th Cir. 1968), cert. denied, 343 U.S. 1105 (1969), but also is discoverable by a defendant in order to show such witnesses’ bias or prejudice in testifying at trial. Davis v. Alaska, 415 U.S. 308 (1974).



2. Prompt Disclosure.

Moreover, the production of the requested material should be required promptly and not postponed for the following reasons:

If it is to be any use to him at all, common sense dictates that evidence in the Government’s possession favorable to the defendant should be made available to him far enough in advance of trial to allow him sufficient time for its evaluation, preparation, and presentation at trial. Otherwise, the trial might well have to be interrupted for an inordinate length of time until the defendant has had an opportunity to explore all the ramifications of the Government’s disclosure, track down distant witnesses, examine documents or the like. Such probable delay could sensibly be avoided by pre-trial disclosure in those cases where disclosure is called for.

United States v. Partin , 320 F. Supp. 275 ( E.D. La. 1970).


3. Request for Thorough Search.

The prosecutor in this case must search not only for his own files for Brady material, but also the files of other employees of the District Attorney’s Office, including any victim/witness contact personnel, whether paid or volunteers , and any other municipal, county, state or federal agencies involved in this matter, including the U.S. and Texas Securities and Exchange Commission, Texas Attorney General’s Office, Dallas Police Department, the Dallas County Sheriff’s Office, and the United States Department of Justice. See, e.g., Kyles v. Whitney, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the other acting on the government’s behalf in the case, including the police.”); United States v. Wood, 57 F.3d 733, 737 (9 th Cir. 1995) (holding that exculpatory material in the possession of the Food and Drug Administration (“FDA”) files was within the constructive knowledge and possession of the prosecutors because the FDA was involved in the investigation and the FDA was the agency charged with administering the statute at issue); United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997) (holding that, in their search for Brady material, prosecutors must “inform themselves about everything that is known in all of the archives and all of the data banks of all of the agencies collecting information which could assist in the construction of alternative scenarios to that which they intend to prove at trial”).




C. PRAYER

For these reasons, Defendant Loses requests that the government be required to produce all items enumerated in this Motion.

Dated: May 2, 2006 Respectfully submitted,

David Finn, P.C.

By:







David Finn
MILNER & FINN
2828 North Harwood, Suite 1950
Dallas, Texas 75201
Texas Bar No. 07026900
(214) 651.1121 (telephone)

Counsel for Defendant




CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served, via hand-delivery, upon all counsel of record, as identified below, on May 2, 2006:



Mr. Jeff Bray
Assistant District Attorney Workroom
Dallas County District Attorney’s Office
Dallas, Texas





David Finn

































ORDER GRANTING DEFENDANT’S MOTION FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE



CAME ON for consideration Defendant Loses’s Motion for Production and Inspection of Brady Material and/or Information Which May Lead to Evidence and, upon consideration, the Court is of the opinion that said Motion should be granted.

SO ORDERED this ________ day of _________________, 2003.





__________________________________________

JUDGE SUSAN HAWK

Judicial process........you have heard of it ......right?

N THE 291st CRIMINAL DISTRICT COURT
DALLAS COUNTY, TEXAS





THE STATE OF TEXAS



v.



DAMONS LOUISE








CRIMINAL NUMBER: F0283772
F0202033








DEFENDANT LEWIS’S MOTION AND INCORPORATED
MEMORANDUM FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE



Defendant DAMONS LOUISE (“Defendant ”) hereby moves this Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, to order the government to inquire about and make the following disclosures.

A. SPECIFIC BRADY REQUESTS

The Defendant respectfully requests that the Court order the government to inquire about and to disclose all materials, information, photographs, videos, recordings, records, notes, reports, electronic mail, communication and statements (herein referred to as “information”) known to the Government/State or which may become known, or which through due diligence may be learned from the investigating officers or the witnesses or persons having knowledge of this case, which is exculpatory in nature or favorable to Defendant or may lead to exculpatory or favorable material regarding either guilt or punishment. This includes, but is not limited to the following:

1. Information tending to indicate that Defendant is not guilty of the offenses alleged in the Indictments.

2. Information showing Defendant’s reputation for honesty, integrity, and/or trustworthiness.

3. Information showing the reputation for honesty, integrity, and/or trustworthiness, and/or any criminal record of any witness called by the State, including any complaining witness.

4. Names of any individuals who made an arguably favorable statement about the Defendant, or who indicated to law enforcement that Defendant is not guilty of the crimes alleged in the Indictments, or that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments.

5. Information which arguably could be helpful or useful to the defense in detracting from the probative force of the government’s evidence, including impeachment evidence, or which arguably could lead to such information, including information that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments. This request includes, but is not limited to, the following information, regarding any potential witness, informant or any government agent who has been involved in the investigation of this case:

(a) requests or statements by government agents or employees to any individual or corporation regarding the payment of defendants’ legal fees or expenses;

(b) prior convictions, arrests, misconduct, wrongs or bad acts;

(c) prior or subsequent inconsistent statements;

(d) instructions not to discuss the case with defense counsel;

(e) the mental, emotional, and physical history of Defendant, or any witness,

(f) the use of any lie detector or polygraph tests on any witness and the results;

(g) the use of narcotics or other controlled substances or alcohol;

(h) defect or deficiency of character for truthfulness, including but not limited to the complainant and officers involved in the investigation/arrest of Defendant;

(i) partiality, prejudice, bias, motive, interest or corruption;

(j) any defect or deficiency of capacity in any prospective witness to observe, remember or recount events;

(k) the existence and identification of each occasion on which each witness who was or is an informer, accomplice, or expert, has testified before any court, grand jury, or other tribunal or body;

(l) any benefit to individuals whatsoever in exchange for their cooperation, assistance or testimony, and any incentives paid, promised or discussed with the witness and the witness’s prior history of cooperation with law enforcement;

(m) a threat to prosecute if cooperation was not forthcoming;

(n)a promise or suggestion of leniency, compensation, assurance not to prosecute, or representations with respect to any uncharged misconduct;

(o) the immigration status of any potential government witness or informant who is not a United States citizen;

(p) any probation, parole, deferred adjudication, or deferred government or custodial status;

(q) any pending or potential criminal, civil or administrative investigations, legal disputes or transactions over which the government has real, apparent or perceived influence which could be brought against the witness or friends or relatives of the witness;



B. ARGUMENT

1. Disclosure of Materials.

The settled principles in Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S. 419 (1995), instruct that the government may not suppress evidence favorable to a defendant either as direct or impeaching evidence. All documents and information which are exculpatory must be provided to the defense.

Courts have noted that the test is not whether the government attorneys believe the material to be favorable to the defense. Rather, it is whether the material “could fairly be construed as favorable to the defendant and material to the issue of guilt or punishment. . . .” United States v. Partin, 320 F. Supp. 285 ( E.D. La. 1970). Doubts as to whether certain items of evidence or types of information could be construed in the defense’s favor should be resolved in favor of their production to the defense. United States v. Perkins, 383 F. Supp. 922, 930 (N.D. Ohio 1974). Since material containing leads to possible exculpatory evidence must also be produced under Brady, the evidence itself need not be admissible at trial.

All information relating to the credibility of a witness clearly must be provided to the Defendant. United States v. Bagley, 473 U.S. 667 (1985). Under Rule 608(b) of the Fed. R. Evid., the court has discretion to permit a defendant to cross-examine a witness as to specific instances of misconduct -- so called bad acts. The purpose of such testimony is specifically to attack the witness’ character; therefore, the government should be ordered to disclose to the defense any behavior of government witnesses that might arguably constitute such bad acts.

Similarly, the government has an obligation to disclose any and all consideration which is held out to a witness, or which the witness objectively hopes for or anticipates, because such consideration directly gives rise to an inference of interest. United States v. Mayer, 556 F.2d 245 (5 th Cir. 1977). A defendant is also entitled to be advised of any matter which might cause a witness to color his testimony in favor of the government out of fear or interest in self-preservation. Thus, the government must disclose both the stick and the carrot. United States v. Sutton, 542 F.2d 1239 (4 th Cir. 1976). If the government possesses any information which might reveal that anyone became a witness in this case because of any pressure applied to him by any other federal law enforcement or regulatory body, the government should be required to disclose this information.

The evidence of any such representations, which have been made by the government or which the government will make at any future time, is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution; and the withholding of any such evidence constitutes a denial to a defendant herein of his constitutionally protected rights to due process and fundamental fairness in the criminal proceedings brought against him. Giglio v. United States, 405 U.S. 150 (1972); Brady, 373 U.S. at 85. Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the government may call to testify against the defendant, Williams v. Dutton 400 F.2d 797 (5 th Cir. 1968), cert. denied, 343 U.S. 1105 (1969), but also is discoverable by a defendant in order to show such witnesses’ bias or prejudice in testifying at trial. Davis v. Alaska, 415 U.S. 308 (1974).



2. Prompt Disclosure.

Moreover, the production of the requested material should be required promptly and not postponed for the following reasons:

If it is to be any use to him at all, common sense dictates that evidence in the Government’s possession favorable to the defendant should be made available to him far enough in advance of trial to allow him sufficient time for its evaluation, preparation, and presentation at trial. Otherwise, the trial might well have to be interrupted for an inordinate length of time until the defendant has had an opportunity to explore all the ramifications of the Government’s disclosure, track down distant witnesses, examine documents or the like. Such probable delay could sensibly be avoided by pre-trial disclosure in those cases where disclosure is called for.

United States v. Partin , 320 F. Supp. 275 ( E.D. La. 1970).


3. Request for Thorough Search.

The prosecutor in this case must search not only for his own files for Brady material, but also the files of other employees of the District Attorney’s Office, including any victim/witness contact personnel, whether paid or volunteers , and any other municipal, county, state or federal agencies involved in this matter, including the U.S. and Texas Securities and Exchange Commission, Texas Attorney General’s Office, Dallas Police Department, the Dallas County Sheriff’s Office, and the United States Department of Justice. See, e.g., Kyles v. Whitney, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the other acting on the government’s behalf in the case, including the police.”); United States v. Wood, 57 F.3d 733, 737 (9 th Cir. 1995) (holding that exculpatory material in the possession of the Food and Drug Administration (“FDA”) files was within the constructive knowledge and possession of the prosecutors because the FDA was involved in the investigation and the FDA was the agency charged with administering the statute at issue); United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997) (holding that, in their search for Brady material, prosecutors must “inform themselves about everything that is known in all of the archives and all of the data banks of all of the agencies collecting information which could assist in the construction of alternative scenarios to that which they intend to prove at trial”).




C. PRAYER

For these reasons, Defendant Loses requests that the government be required to produce all items enumerated in this Motion.

Dated: May 2, 2006 Respectfully submitted,

David Finn, P.C.

By:







David Finn
MILNER & FINN
2828 North Harwood, Suite 1950
Dallas, Texas 75201
Texas Bar No. 07026900
(214) 651.1121 (telephone)

Counsel for Defendant




CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served, via hand-delivery, upon all counsel of record, as identified below, on May 2, 2006:



Mr. Jeff Bray
Assistant District Attorney Workroom
Dallas County District Attorney’s Office
Dallas, Texas





David Finn

































ORDER GRANTING DEFENDANT’S MOTION FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE



CAME ON for consideration Defendant Loses’s Motion for Production and Inspection of Brady Material and/or Information Which May Lead to Evidence and, upon consideration, the Court is of the opinion that said Motion should be granted.

SO ORDERED this ________ day of _________________, 2003.





__________________________________________

JUDGE SUSAN HAWK

Not a single attorney represented solely the interests of school students and their families — who might actually favor the broader educational option

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IN THE SUPREME COURT OF TEXAS


════════════

No. 04-1144

════════════

Shirley Neeley,

Texas Commissioner of Education, et al., Appellants,

v.

West Orange-Cove Consolidated

Independent School District, et al., Appellees


consolidated with


════════════

No. 05-0145

════════════

Alvarado Independent School District,

et al., Appellants,

v.

Shirley Neeley,

Texas Commissioner of Education, et al., Appellees


consolidated with




════════════

No. 05-0148

════════════

Edgewood Independent School District,

et al., Appellants,

v.

Shirley Neeley,

Texas Commissioner of Education, et al., Appellees

════════════════════════════════════════════════════

On Direct Appeal from the

250th District Court of Travis County, Texas

════════════════════════════════════════════════════


Argued July 6, 2005

Justice Brister, dissenting.

In the name of “efficiency,” several school districts again ask the Texas courts to close the Texas public schools unless the Texas Legislature increases funding. Over the last two decades, we have been asked to do this every two or three years, and have generally complied.

The Court goes too far by doing so again today. First, the Court finds school districts are forced to tax at the highest possible rate only because some of them do. Second, though only five percent of the State’s school districts claim a single statute is unconstitutional, the Court enjoins the State from distributing any money under the current Texas school financing system, an order that applies to every school district in Texas. Thus, because some districts get too little state money, all districts may get none. It is hard to see how this will help Texas school children.

Yet the Court also does not go far enough. By failing to demand an “efficient system” as the Texas Constitution requires, or to demand standing and proof as Texas law requires, this case once again focuses on short-term funding rather than long-term solutions.

Of course, the true goal of this litigation is to put pressure on the Texas Legislature. We demanded legislative changes by holding the Texas school-finance system unconstitutional in Edgewood I, Footnote Edgewood II, Footnote and Edgewood III; Footnote we warned that we might do so again soon in Edgewood IV Footnote and West Orange-Cove I. Footnote The Court fulfills that threat today. But there is no end in sight; if the past is any indication, the new funding will not last long, and public education will not change much.

Before we bequeath Edgewood VIII, IX, and X to our grandchildren, we should consider whether we might do more by doing less. As the Court fails to do so today, I respectfully dissent.I. The Constitution & Efficiency

Since statehood in 1845, every Texas Constitution has required the Legislature to “make suitable provision for the support and maintenance of public schools.” Footnote But when Texans adopted the current Constitution in 1876, they added a new word — the Constitution now requires “suitable provision for the support and maintenance of an efficient system of public free schools.” Footnote

Were we drafting a constitution today, we might choose a different standard — perhaps an “exemplary” or “comprehensive” or “progressive” or “safe” system of public schools. But in 1876, the people of Texas adopted “efficient” as the constitutional standard, and until that Constitution is amended no court can adopt any other.

When this Court issued Edgewood I in October 1989, we recognized that an “efficient” system would “produce results with little waste.” Footnote Nevertheless, we have applied the term in every case since then to require only one thing — “substantially equal access to similar revenues per pupil at similar levels of tax effort.” Footnote In other words, “efficient” has meant only “equal ability to raise taxes.”

Perhaps this made sense in 1989 — before the Berlin Wall fell, before the Soviet Union collapsed, and before state-run businesses everywhere proved uncompetitive. Perhaps back then a government system was “efficient” if it could get sufficient public funding.

But surely not now. Today, we know that one thing above all else makes service providers efficient: competition. Even formerly communist countries recognize how efficiency is produced — not by protectionism, not by higher taxes, and not by state control, but by freedom for competition.

Yet the school districts that brought this case never once suggested in six-weeks’ evidence that competition might make the Texas school system more efficient. No one considered fundamental reforms that efficiency might demand. No school expert considered whether it might be efficient to consolidate tiny school districts or redundant school administrations. No one asked whether it might be efficient to transfer students across district lines, or transfer funds to private providers that could meet their needs better. Instead, this trial focused entirely on getting more state funding through more taxes — all else in the system to remain exactly the same.

This, of course, is perfectly natural. Few of us welcome competition, not even judges. Footnote Competition is often painful, and requires us to make hard choices we would rather avoid.

But long-standing rules of Texas law do not allow us to wink at these omissions here. First, because Article VII’s education guarantee is a right that belongs to school children rather than school districts, the latter have no standing to assert this claim. Every party in this case was a school district, and every witness in the six-week trial was a school employee or school expert. Not a single attorney represented solely the interests of school students and their families — who might actually favor the broader educational options or lower taxes competition might bring. By overlooking standing, this trial focused too much on the priorities of school districts, and not enough on the priorities of school families.

Second, because Article VIII’s constitutional prohibition of state property taxes is violated only if a school district must tax at the statutory maximum, each district had to prove it was forced to do so. The 47 plaintiff districts alone asserted this, but none proved it. No school district addressed, no expert studied, and none of the trial judge’s 679 findings mentioned why districts were “forced” to make expenditures that other public and private schools often forego, or that other government entities often provide. Nor did anyone consider whether competition or other fundamental reforms might make the system more efficient so that less money was necessary. By lowering the burden of proof, this trial focused on whether school expenditures were reasonable rather than required.

My colleagues say our review of “efficiency” must be limited to funding because “[w]e cannot dictate how the parties present their case.” Footnote This Court is not usually such a pushover. When we interpret contracts, statutes, and (above all) constitutions, we are constrained by what they say, not the parties’ briefs. The constitutional guarantee invoked here requires an efficient system of public schools; it cannot be used to demand more funding for an inefficient system.

Nor can we avoid our duty by suggesting that the Legislature demand efficiency when we will not. Footnote If efficiency is a justiciable question (as the Court holds), then we cannot simply suggest that someone else look into it.

The author of the current school-finance system testified at trial that school districts “were no more wasteful or inefficient than any other State agency or State institution.” But that is not the constitutional standard. For whatever reason, the Texas Constitution mandates efficiency primarily in the State’s courts Footnote and schools; Footnote they must meet a higher standard because that is what the Constitution requires. If “efficiency” truly means “producing results with little waste,” then someday we ought to apply it to that purpose.

II. Article VII & StandingA general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.

Texas Constitution, Article VII, § 1While acknowledging evidence that the public school finance system is inadequate, unsuitable, and inefficient, the Court nevertheless finds no violation of Article VII because “an impending constitutional violation is not an existing one.” Footnote We have tried this before, accepting the current system while lamenting it, and warning that the result might be different next time. Footnote

But this is the first time we have entertained such complaints in a courtroom with no students. While standing normally requires only an allegation of injury, a two-part test governs standing to challenge the constitutionality of a statute: (1) an allegation of actual or threatened injury under the statute, and (2) an allegation that the statute unconstitutionally restricts the plaintiff’s own rights. Footnote As all concede, the public-education guarantee in Article VII of the Texas Constitution is a right that belongs to school students, not school districts. Yet only the latter were represented at trial, and as the trial made clear, the interests of the two are not necessarily the same.

Standing is required by two guarantees in the Texas Constitution — separation of powers Footnote and open courts. Footnote We should not violate these two constitutional provisions in order to decide whether the State violated two others.

A. A Question We Have Never Addressed

This is the first Article VII school-finance case brought solely by school districts, without a single family or school student as plaintiff.

In Edgewood I, 68 school districts and “numerous individual school children and parents” filed suit. Footnote Edgewood II involved subsequent proceedings in the same suit with the same parties. Footnote Edgewood III was brought by “numerous school districts and individual citizens.” Footnote Edgewood IV was filed by “hundreds of school districts . . . as well as many parents and local officials.” Footnote

None of these cases approved school-district standing under Article VII. Nor did they approve such standing implicitly, as standing cannot be waived and may be raised during any later appeal. Footnote

To the contrary, in Edgewood IV, we held that section 3 of Article VII granted no constitutional rights to school districts:

Article VII, section 3 does not create any “rights.” It only authorizes the Legislature to establish school districts and to empower the districts to levy taxes for specific purposes. The school districts’ rights, to the extent they exist, are derived solely from the statutes that the Legislature may enact under the authority granted in section 3. Footnote

Similarly, section 1 of Article VII does not create any rights for school districts; in fact, it does not even mention them. To the extent school districts assert injury here, they cannot do so for any violation of this constitutional right.

While school districts participated in all our prior Article VII cases, their standing was immaterial because school families participated too. When several parties make the same claim for declaratory or injunctive relief, standing for some renders standing for the remainder immaterial. Footnote Federal law is to the same effect. Footnote As all our prior cases included parties whose sole interest was the education of their children, the State had nothing to gain by objecting to school-district standing, and the judgments would have been no different if it had.

There is certainly no “broad rule that a governmental entity cannot sue to declare a statute unconstitutional.” Footnote But there is no broad rule that they always have such standing either. Just because school districts have standing to bring some claims does not mean they have standing to bring all claims.

Instead, standing depends on the nature and source of the claim being made. Footnote While school districts have standing to pursue an Article VIII claim, Footnote that does not mean they have standing to pursue an Article VII claim. We have never suggested otherwise, until today.

B. Standing We Have Never Recognized

Before today, we have never held that government agencies have standing to sue the State for a bigger budget.

The school districts allege they have insufficient money to carry out their duties, but it is not money for their own account. As we held long ago, school districts hold money only as trustees for school students:

School funds are held to be trust funds for educational purposes. Such funds do not belong to the district or to the officers of the district, but are merely held by them in trust for the public. Footnote

The injury alleged in this case was suffered only by school students: to the extent school districts must cut courses, or eliminate extracurriculars, or hire less-qualified teachers, it is the students who suffer the concrete, personal harm rather than the districts themselves.

The school districts alleged only that inadequate state funding limited their ability to perform their official duties. Both state and federal courts have rejected standing by government officials to bring such claims. Footnote Thus, we held in Brown v. Todd that a city councilman lacked standing to challenge a mayor’s personnel policy that did not apply to him, but merely infringed his ability to set such policies. Footnote Similarly, the United States Supreme Court recently held that grant recipients but not members of Congress had standing to challenge the Line Item Veto Act(though the Act granted standing to both), as the former actually lost money while the latter lost only their discretionary power to dispense it. Footnote

This is not a case like Nootsie, Ltd. v. Williamson County Appraisal District, in which a public entity was compelled to affirmatively grant a tax exemption it believed unconstitutional. Footnote The districts do not complain that they are affirmatively compelled to perform unconstitutional teaching, testing, or any other services; they complain only that they are underfunded.

The Court’s suggestion that we have recognized standing before in these circumstances is indefensible. In Vondy v. Commissioners Court, we ordered commissioners to pay a constitutionally required salary when they had refused to pay any. Footnote In Mays v. Fifth Court of Appeals, we ordered commissioners to pay a statutorily allowed raise which they had ignored. Footnote Both cases involved nondiscretionary ministerial acts; Footnote neither involved a dispute between an agency and the State about whether the former’s budget was big enough.

The Court justifies standing here because “the Legislature has required school districts to achieve the goal of a general diffusion of knowledge.” Footnote But that gives them no rights against the State. As we noted in Edgewood IV, the State can abolish school districts completely, or enlarge or diminish their powers. Footnote Further, the Texas Constitution requires the Legislature to provide for many things — roads and bridges, Footnote the Legislative Redistricting Board, Footnote the Judicial Conduct Commission, Footnote and the salaries of thousands of public employees. Footnote These are all important items, and some may be underfunded; but surely all do not have standing to sue the State for more.

In every analysis of standing, “the plaintiff must contend that the statute unconstitutionally restricts the plaintiff's rights, not somebody else’s.” Footnote This the school districts cannot do.

C. Priorities We Have Never Approved

One reason courts require standing is amply demonstrated by the evidence in this trial, which tended toward a wish-list for school district employees.

Eight superintendents testified for the school districts at trial, each listing what they needed or what they would do if they had more money. Their priorities were almost identical: more bilingual teachers, more certified teachers, more certified librarians, more teacher training, higher salaries, better benefits, smaller classes, and longer school years.

Each of these may be important. But if eight families from the same districts had testified at trial, is this what they would have listed? Assuming all could not be fully funded, would they have listed them in the same order? We simply do not know.

We do know that, for most of us, our priority as employees is higher salaries, while our priority as customers is lower prices. Both may be possible when competition increases efficiency, innovation, and productivity. But at some point the two inevitably conflict, and some compromise is necessary. Because the trial here included only education providers and no education customers, the evidence may not accurately reflect where that line should be drawn.

Moreover, fundamental reforms may be overlooked if school districts may assert Article VII claims by themselves. Here, for example, not a single expert witness studied the possible savings that might accrue from consolidating some of the State’s 1,031 school districts. This Court has repeatedly lamented the “crazy-quilt pattern of small school districts,” Footnote as a result of which “duplicative administrative costs are unavoidable.” Footnote The plaintiffs’ experts confirmed that smaller districts have “the highest level of expenditures per student, as one would expect,” because of “diseconomies of scale.” Yet not a single school district or expert witness suggested any consolidations. Footnote

It is unrealistic to ask school boards and administrators to recommend their own abolition, or lower salaries for themselves or any employees. Such potential conflicts between the interests of school districts and school families prevent the former from claiming standing to represent the latter. We have recognized representative standing in some circumstances, Footnote and sometimes state agencies may assert standing on behalf of their constituents. Footnote But we have done so only when the goals of a group and its members are so closely aligned that there is no reason to require participation by one in a suit by the other. Footnote That is not the case here.

In its final analysis, the Court dispenses with standing generally, because (1) students and families were free to intervene, and (2) the districts could find students and families to back their claims. Even if we assume that poor families can hire lawyers, or school districts can recruit sham plaintiffs to bolster their claims, it is hard to see what that has to do with the standing of the parties actually before us. More important, such arguments could be made by every party who lacks standing, including millions of taxpayers, Footnote or the father whose challenge to the Pledge of Allegiance was recently rejected for lack of standing. Footnote Normally, this Court strictly enforces standing so that we retain our proper role; Footnote hopefully today’s exception is good for this case only.

Standing is not a technicality; it is essential to any court’s authority to decide a case. Footnote We cannot abandon it in noteworthy cases; indeed, that is when adherence to legal standards is most important. As the United States Supreme Court recently noted, courts must be “especially rigorous” in requiring proper standing when asked to declare the actions of the other two branches of government unconstitutional. Footnote The school districts alone cannot meet such standards here.

III. Article VIII & Discretion

No State ad valorem taxes shall be levied upon any property within this State.

Texas Constitution, Article VIII, § 1-e

The 47 plaintiffs, mostly property-rich school districts, bring a claim that Article VIII, section 1-e of the Texas Constitution is violated by a tax-rate ceiling in a single subpart of a single statute. Footnote Unlike Article VII, Article VIII was intended to benefit school districts, and thus they have standing to assert this claim. Footnote

In Edgewood III, we declined to adopt a precise test for violations of Article VIII because state control over property taxes presents “a spectrum of possibilities.” Footnote Instead, we held that a tax violates Article VIII if the State so completely controls the levy, assessment, and disbursement of revenue that school districts are “without meaningful discretion.” Footnote In Edgewood IV, we explained that districts lose such discretion when they are “forced to tax at the maximum allowable rate just to provide a general diffusion of knowledge.” Footnote

This appeal turns on whether the plaintiffs proved they were “forced” to tax at the maximum rate. In reviewing the evidence, the Court contradicts everything we have said about such evidence before, and adds new “factors” we apparently overlooked before. This is too imprecise; a legal standard cannot turn on entirely different evidence from one case to the next.

A. The Wrong Standard: Everybody Else Does It

The Court points to several statewide trends as evidence of an Article VIII violation. But in our previous cases, we held that evidence just like this could not show an Article VIII violation.

First, my colleagues suggest that school districts are forced to tax at maximum rates because about half of them do. While we have never stated in detail what the Article VIII standard means, we have stated one thing it does not mean — “the number of districts taxing at maximum rates is not determinative.” Footnote In West Orange-Cove I, we expressly rejected arguments that an unconstitutional state property tax must control the rates in every district (the State’s position) or most districts (the trial court’s conclusion); instead, we held that an ad valorem tax is unconstitutional if it is imposed by the State, no matter how many districts it covers. Footnote If the State could not use prevailing tax rates to prove the school districts should lose, why can the school districts now use them to prove they should win?

Second, the Court reverses field by concluding that close-to-maximum rates show that many districts lack meaningful discretion. Only two years ago, we said close counts neither way: “It may be that a school district taxing at $1.47 instead of $1.50 has exercised meaningful discretion, but that is not necessarily the case.” Footnote The number of districts taxing in this range simply cannot tell us whether “a single district . . . is constrained by the State to tax at [this] particular rate.” Footnote

Third, the Court finds it important that districts are taxing and spending 97 percent of the revenue that would be available if every district taxed at maximum rates. Footnote But in Edgewood IV we noted, and school district witnesses conceded at trial, that financial incentives in the current school-finance system encourage school districts to tax at maximum rates even if they don’t have to. Footnote The current system does not force districts to tax at maximum rates merely by providing incentives for them to do so.

Fourth, the Court announces today that substantial transfers of tax revenues from rich districts to poor districts are “a significant factor” in rendering the current system unconstitutional. Footnote Of course, we demanded something along these very lines when we required equalized funding in Edgewood I. Further, we held such transfers constitutional in Edgewood IV; Footnote today’s opinion appears to adopt the dissent in the latter case. Footnote

Finally, the Court supports its constitutional conclusion by noting a “marked decline” since 2001 in the number of districts that “exceed minimum accreditation standards.” Footnote We have never before tied constitutional analysis to testing or accreditation scores, and today’s reference shows why we should be reluctant to enter that hotly debated area. For example, if the base year in this trend were 1994 rather than 2001, then there has been a marked increase in the number of districts exceeding minimum standards. Further, as the standards themselves are rising, declining scores may or may not reflect actual declines. And the “minimum” standard referenced here is “academically acceptable”; nothing in this rating system proves the State is “forcing” every school district to rate above average.

Surely we were not mistaken in all our previous cases. If revenue transfers and accreditation scores were relevant to Article VIII’s standard, it is curious that we have never mentioned them before. And merely looking at average tax rates cannot tell us whether any district was “forced” to that level or arrived there via “meaningful discretion.”

Whether any school district in Texas has lost “meaningful discretion” is not a standard that can be proved by statewide trends. School districts are not forced to tax or spend money just because everyone else does it. Footnote The standards this Court has established require more specific evidence of a violation of Article VIII.

B. The Right Standard: What Must This District Do?

The school districts cannot establish a violation of Article VIII by proving that their current budgets are customary, or even reasonable; the tax cap they challenge is unconstitutional only if they proved they were forced to tax at that rate.

By definition, districts are not “forced” to make discretionary or voluntary expenditures. Of course, some expenditures may be mandatory de facto, even though not mandatory de jure. Footnote For example, Texas school boards or administrators who cut football programs or drill teams (as the State’s attorneys bravely suggest) may soon find themselves looking for other occupations.

But the Court adopts a standard far too low by holding that districts are “forced” to tax at maximum rates whenever their “professional judgment and experience” suggests they should. Footnote Undoubtedly, school districts want to give their students the best education possible, and an educator’s professional judgment would deem anything less to be undesirable. But in Edgewood IV, we rejected a claim that districts were “forced” to transfer revenues “because the various alternatives are all undesirable.” Footnote By equating professional preferences with coercion, my colleagues again follow the dissent rather than the majority in Edgewood IV. Footnote

The districts did offer examples of expenditures that were mandatory, and programs that were cut. But as proof that districts are forced to tax at maximum rates, both are non sequiturs. Proving that some programs are mandatory does not prove that all others are too. Nor does it follow from cuts in one program that no further cuts can be made. To the contrary, the reluctance the superintendents expressed at trial about such cuts served to prove, if anything, their reluctance to cut any programs at all.

Moreover, the State’s trial evidence of discretionary spending did not focus on remedial-reading or bilingual-education programs. Instead, the State pointed to undisputed expenditures for swimming pools, nature trails, athletic stadiums, tennis courts, and unconventional classes such as broadcast journalism, ceramics, power lifting, ballet, film critique, lego robotics, advanced mariachi, and culinary arts.

It is true that several superintendents testified that all these programs were needed to keep students in school. But if we take these claims at face value then nothing schools spend is discretionary. “[A] claim will not stand or fall on the mere ipse dixit of a credentialed witness.” Footnote These opinions alone cannot support the trial court’s judgment, both because they are conclusory, Footnote and because the question is a legal one. Footnote This Court is not usually so generous in treating such testimony as “facts, not opinions.” Footnote

Further, none of the school districts explained why they were “forced” to maintain athletic facilities or library services that local governments often provide, or unconventional classes that might be available through local community colleges or the internet. No one would suggest that communities can run their fire, police, or utility departments through a school district’s budget, thus shifting those costs to the State or richer districts. The trial court could not simply assume there were no alternative providers; the school districts had to prove it.

Similarly, several superintendents conceded paying the highest starting salaries in their region, or special stipends to attract particular types of teachers. Considering the importance of what they do, no one can begrudge teachers higher salaries; but these contribute to a violation of Article VIII only if school districts had no choice. If surrounding public or private schools pay less, it was the districts’ burden to prove why they could not.

When pressed to explain such expenses, district witnesses repeatedly pointed to the demands of their local communities. But again, local demand must be proved, not merely asserted. As no students or families testified at trial, the only proof was the conclusory assurances of school administrators.

In a democracy, community demand is proved by elections, not anecdotal hearsay. In many instances, schools can buy property using school bonds (which require electoral approval) or the general operations budget (which does not). We cannot tell from this record which programs had been approved at an election, or what percentage of the community actually participated. Surely a district cannot avoid elections on expensive programs, or schedule them to ensure low voter turnout, Footnote and then claim they were forced to adopt those programs by their community. Footnote Without such proof here, we simply cannot tell.

Finally, because fundamental reforms were never considered, we do not know whether they might allow districts to drop rates below the tax ceiling. School districts cannot spend money inefficiently (subverting Article VII) to “force” themselves to the tax ceiling (subverting Article VIII), as these articles must be construed consistently to give effect to both. Footnote School districts may have good reasons to avoid consolidating, or starting school later in the year, or increasing class size so that teachers’ salaries could be increased too. But they are forced to make current expenses only if saving money through such alternatives was impossible, not just unpopular.

Of course, had the trial judge required specific evidence that the districts were forced to incur substantially all their current expenses, it would have been much more difficult for the districts to prove an Article VIII violation. But proving a statute unconstitutional is not supposed to be easy. We must presume the current system is constitutional, and interpret it whenever possible in a manner that renders it so. Footnote This presumption is “especially strong” when statutes relate to taxation, Footnote and “especially important” when we deal with politically charged subjects like the schools. Footnote

There was plenty of evidence at trial that public schools are being asked to carry increasingly heavy burdens, burdens that private schools often do not bear. For example, as one superintendent noted, “it is not easy to remove employees in the public sector.” Accountability and testing systems have raised expectations that somehow all schools and school children can be at or above average. Teachers and administrators face the risk that the failure of their students will cause their own professional efforts to be labeled “academically unacceptable.” And as all the witnesses agreed, a growing stream of immigrants with little formal schooling or English proficiency requires that public schools not only leave no child behind, but go back at great expense and pick up more as soon as they arrive. Footnote

Nevertheless, the Article VIII standard is not whether educational expenditures are reasonable, or important, or far-sighted, or what a community would prefer, but whether a district is forced to make them. Before the courts can declare the State’s school-finance system unconstitutional, each and every district must prove it had no other choice. Here, none did.

IV. Equity & Overbroad Relief

Permanent injunctions “must be narrowly drawn,” Footnote and “the record must contain evidence supporting each injunctive provision.” Footnote This one meets neither standard.

It is neither true nor “worth repeating” that these standards can be ignored because the State asks for no injunction rather than a narrower one. A court must craft an equitable injunction even if it is not precisely what either party wants. Footnote If the rule were otherwise, the Court should not postpone the injunction here until June 2006 — as neither party asked for that. Hopefully, today’s rule is once again good for today’s case only.

A. Too Many Districts

First, there is no evidence to support a constitutional violation in every school district in Texas.

Out of 1,031 school districts in Texas, only 329 filed suit, only 47 asserted the single constitutional claim the Court affirms, only 9 presented proof on that claim in any detail, and only 3 called a witness to prove it at trial. On this narrow basis, the Court declares the school-finance system in every district unconstitutional, and enjoins state funding for them all. This is too broad.

As we recently noted, it has always been the law of equity that a permanent injunction “must not grant relief which is . . . more comprehensive or restrictive than justified by the pleadings, the evidence, and the usages of equity.” Footnote Thus, for example, a permanent injunction against protests at five physicians’ homes is too broad if the evidence shows protests occurred at only four. Footnote Similarly, evidence of flies and foul odors from a 10-acre feedlot does not justify a permanent injunction extending to an entire 450-acre ranch. Footnote An injunction may extend as far as the evidence, but no further.

In their Article VIII claim, the plaintiffs did not challenge the tax-rate cap facially, Footnote but only as it applied to them. “In an as-applied constitutional challenge, we must evaluate the statute as it operates in practice against the particular plaintiff.” Footnote Yet the trial court did not even try to evaluate how the property-tax cap operates in practice against most of the 47 plaintiffs, much less the other 984 districts covered by the statewide permanent injunction. As the question is one of constitutionality, we cannot simply presume that all districts are alike.

The trial judge pointed to evidence from nine “focus districts” and the testimony of a dozen superintendents as proof that loss of meaningful discretion was “systemic/statewide.” But there was no evidence these districts were statistically representative of all others. To the contrary, the handful of successful focus districts were unrepresentative — 78 percent of the plaintiffs’ focus districts were poor districts, while 72 percent of the actual plaintiffs were rich ones.

Nor did the parties agree that proof about the focus districts proved anything about the rest. Even if they had, such an agreement would be unenforceable. In Terrazas v. Ramirez, we reversed a permanent injunction that ordered election redistricting based on an agreement by all the parties (including the Governor and Attorney General), Footnote noting that such agreements are generally unenforceable in cases affecting the public:

Apportionment affects every person in the State, yet only a very few parties can be involved in any lawsuit challenging redistricting. The trial court must attempt to consider the interests, not only of the parties in the case, but of others who are not present. For this reason, the agreement of the parties in a reapportionment lawsuit cannot alone be conclusive of either the validity of the statute or, if it is found to be invalid, the relief to be granted. Footnote

Similarly, as schools and property taxes affect far more Texans than the parties at this trial (none of whom, again, were simply taxpayers or families of school children), the trial court could not grant relief covering districts as to which there was no proof. Footnote

In a state as diverse as Texas, some programs and expenses may be mandatory in one district, but supplemental in another. Even if a dozen districts proved that they were forced to incur all their expenditures (which none did), that would not justify an injunction extending beyond them. Footnote

This is not a class action. No class has been certified, and given the individual ways in which each school district spends money, it is unlikely any could be. But even if one was, we could not grant relief extending to nonparty school districts without a “rigorous analysis.” Footnote Yet the Court today grants a statewide injunction affecting hundreds of nonparty school districts without class certification, evidence, analysis, or even an explanation. This looks too much like “enjoin now and worry later.” Footnote

B. Too Many Statutes

Second, there is no evidence to support an injunction against every statutory aspect of the Texas school-finance system.

The Court finds only one constitutional violation — that the tax-rate ceiling in subsection 45.003(d) of the Education Code violates Article VIII. As already noted, there is no evidence showing this is the case in every school district in Texas. But even if there were, that would justify nothing beyond declaring this one subsection unconstitutional.

When we declared a single provision of the Water Code an unconstitutional delegation to landowners, we did not enjoin all water quality regulations in Texas. Footnote When we found a single provision of the Tax Code unconstitutional, we did not enjoin all taxes; to the contrary, we reformed the lower court’s injunction to make it narrower. Footnote When we found an absolute two-year statute of limitations for medical malpractice claims unconstitutional as applied to minors, we did not enjoin the entire statute but merely tolled limitations for minors. Footnote

In each of these cases, we narrowly limited our orders to the legislation we found unconstitutional. By the same standard, if the Legislature imposed a property tax on the nine Texas counties whose names begin with “J”, surely we would declare only that statute unconstitutional; we would not stop all state funding in those counties, much less in the other 245.

But today the Court does precisely that, finding one subsection unconstitutional as applied to nine focus districts, and then affirming an injunction against the entire Texas school-finance system. This injunction includes most of Chapters 41 and 42 of the Texas Education Code — a collection of almost 100 different statutes. This is far too broad.

The Court acknowledges that the single violation here could be corrected by limiting relief to that single statute. Footnote But it imposes far more sweeping relief, on the ground that we must “leave such matters to the discretion of the Legislature.” Footnote In other words, rather than enjoining a single statute in a handful of districts, the Court enjoins scores of statutes across the entire State — in deference to the Legislature. Reasonable people may question whether this is very much deference.

It is true that we have enjoined the entire school-finance system before, but never for grounds as limited as those here. Footnote In Edgewood I and II, there was a “fundamental flaw” in the system, “not in any particular provisions but in its overall failure to restructure the system.” Footnote By holding that Article VII required the entire system to “draw revenue from all property at a substantially similar rate,” Footnote our ruling could not be narrowly limited to a small part.

Similarly, because the statute we held unconstitutional in Edgewood III mandated a state property tax in every Texas county, the injunction we issued had to cover every county too. Footnote Nor could we limit relief to the portion of the system held unconstitutional, as there would have been little financing left over for schools without it. Footnote

By comparison, nothing about the Article VIII claim here inevitably extends to the whole school-finance system. Surely a single violation of Article VIII anywhere cannot justify an injunction shutting down school finances everywhere.

The Court says the current system cannot survive without the tax-rate cap, because “for districts that need additional revenue, the funding system would be inefficient.” Footnote But the Court cannot have it both ways — if school districts “need” more funding, then current funding cannot be adequate for a general diffusion of knowledge; conversely, if the current funding is adequate (as the Court explicitly holds), then the cap only affects supplemental spending. As the Texas Constitution does not guarantee equal supplemental spending, Footnote the cap is hardly “central” to a constitutional system. Footnote

Of course, it is no mystery why the plaintiff school districts never asked for narrower relief. If only section 45.003(d) were declared unconstitutional, they would once again have meaningful discretion to set tax rates as they wish, and could raise them to pay for all the programs they say their communities demand. But they also might find out at the next election that their beliefs about community demand were somewhat exaggerated.

Instead, by enjoining school-finance across the state, the school districts here hope to obtain funding from sources other than those within their own borders. Raising revenues from outside sources is unlikely to make school districts more accountable or more efficient. Neither equity nor the Texas Constitution allows school districts to demand supplemental programs on condition that someone else pay for them.

* * *

The Court closes by reminding the Legislature how important education is to the future of this State and its people. This seems an odd way to conclude an opinion that rejects every claim except that the Legislature has imposed a statewide ad valorem tax. If our goal is to improve education, we should not enjoin the entire school-finance system on collateral grounds to pressure the Legislature to change it.

But we should demand efficiency, as that is what the Texas Constitution requires. Recognizing the common meaning of “efficient” would not require us to abandon our previous school-finance cases, or the equity for Texas schools they require. But we cannot keep overlooking the one standard the Texas Constitution explicitly demands. Nor do we help Texas school children by insisting “efficient” means nothing beyond equal access to taxes.

Someday, the Texas school system must become “efficient” by 21st century standards. As that is what the Texas Constitution requires, we should start that process today.



________________________________

Scott Brister

Justice


OPINION DELIVERED: November 22, 2005

Raised to the Infinity Power Squared: Infinity "raised to the power" of 2

Raised to the Infinity Power Squared: Infinity "raised to the power" of 2

watt they need to pass to compete is......Halo.....ACT, SAT,MFAT,LSAT.......KItty bar the Bar EXAMine.....WATT IS FAIR!

These are college seniors. Among the institutions whose students were surveyed: Dartmouth, Yale, Harvard, the University of California at Berkeley, the University of North Carolina at Chapel Hill, and the University of Michigan.

It should go without saying that in a republic, civic education is a fundamental necessity. If even our elite college graduates have no idea what the First Amendment does, the country is in trouble.

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. AP-75,176

Ex parte RICKIE LYNN CROW, Applicant




ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NO. W01-59845-T IN THE 283rd JUDICIAL DISTRICT COURT

FROM DALLAS COUNTY

Keller, P.J., delivered the opinion of the unanimous Court.


O P I N I O N




The question in this case is whether an applicant must show prejudice to establish entitlement to an out-of-time petition for discretionary review (PDR) due to counsel's failure to follow the requirements of Ex parte Wilson. (1) We hold that a limited showing of prejudice is required. Finding that applicant has made this limited showing, we grant relief.


I. BACKGROUND

Applicant was charged with the offense of aggravated robbery. He pled "not guilty" and was subsequently convicted. He appealed. Represented by counsel on appeal, applicant challenged the legal and factual sufficiency of the evidence and alleged Batson (2) error. The court of appeals affirmed the trial court's judgment on April 4, 2003, but appellate counsel failed to inform applicant of the court of appeals's decision. As a consequence, applicant did not become aware of the court of appeals's decision until after the time for filing a petition for discretionary review had expired.

In a pro se application for writ of habeas corpus, filed with the trial court on April 13, 2004, applicant contended that he discovered the court of appeals's opinion after his own inquiry, that he was deprived of his right to file a PDR, and that, had one been filed, there was a significant chance his conviction would have been reversed. Applicant did not explain in his application why he believed a PDR would have had merit.

We filed and set this case to determine whether Hernandez v. State, (3) applying the prejudice prong of Strickland (4) to the punishment phase of noncapital cases, (5) had any impact on the rule announced in Wilson. Briefing was requested and applicant was appointed counsel for that purpose. Habeas counsel argued that a showing of prejudice was not required and, in the alternative, that the Batson claim had merit. In its brief, the State claimed that a showing of prejudice was required and that applicant failed to show prejudice because all of his claims on appeal were without merit.

II. ANALYSIS

Hernandez suggests that a prejudice component is always part of an ineffective assistance claim because the government is not responsible for deficient attorney performance and should not be held accountable absent some real harm. (6) But we must also address the present case in light of another, much more recent decision, Johnson v. State. (7) Johnson likewise held that all attorney errors should be viewed through the prism of the Strickland framework, except in conflict of interest cases and where the defendant is denied the right to counsel altogether. (8)

But Johnson recognized that Supreme Court precedent treats certain attorney errors a little differently under Strickland's prejudice prong than is ordinarily the case. (9) For attorney errors that involve a deprivation amounting to a structural defect, the prejudice inquiry is more limited. (10) These errors are rare, but include deficient conduct that results in the deprivation of an entire judicial proceeding, such as an appeal. (11) When a defendant's right to an entire judicial proceeding has been denied, the defendant is "required to show a reasonable probability that, absent counsel's errors, a particular proceeding would have occurred, but he [is] not required to show that the proceeding would have resulted in a favorable outcome." (12) Or put another way, to meet the limited showing of prejudice in this context, "counsel's deficient performance must actually cause the forfeiture of the proceeding in question." (13) As part of showing that the counsel's conduct actually caused the forfeiture of the proceeding, the defendant must demonstrate that he would have availed himself of the proceeding in question. (14)

Although there is no right to discretionary review, an appellant ordinarily has a right to file a PDR in an attempt to persuade us to exercise our discretion. Losing the right to file a PDR constitutes the deprivation of that entire proceeding.

The question then becomes whether counsel's conduct caused the deprivation. In the PDR context, satisfying that showing entails: (1) demonstrating that the appellant was entitled to be in the appellate process, and (2) absent counsel's conduct, the appellant would have timely filed a PDR. When the appellant has no right to appeal, he can hardly be in position to complain about the denial of a PDR. In that circumstance, there should have been no occasion to file a PDR because appeal itself was unauthorized. So, where appeal is barred by Article 42.12, §5(b), (15) Rule 25.2(a)(2), (16) Manuel v. State, (17) or some similar provision or doctrine, or where the defendant waived appeal, the attorney's failure to comply with Wilson does not cause the defendant to be deprived of consideration of his PDR. Likewise, when an appellant would not have filed a PDR anyway, even if he had been notified in compliance with Wilson, then the attorney's action cannot be said to have caused the deprivation.

Applicant's case involved a prosecution on the primary offense, in a single proceeding, that resulted in conviction after a plea of not guilty. No statute, rule, or caselaw doctrine appears to prohibit appeal, no waiver of appeal is apparent, and the court of appeals addressed applicant's appeal on the merits. Consequently, we conclude that applicant was entitled to be in the appellate process. With regard to whether applicant would have filed a PDR, he filed his application less than a year after the court of appeals's opinion became final, he has alleged that he was deprived of the right to file a PDR and that he believes a PDR would have had a significant chance of success, and of course, he is currently asking for an out-of-time PDR. And there is no controverting evidence suggesting that he would not have filed a PDR. Under the circumstances present here, applicant's allegations are sufficient to prove that he would have filed a PDR if he had been properly informed in accordance with Wilson's dictates.

Applicant is granted leave to file an out-of-time petition for discretionary review. Should applicant desire to seek discretionary review, he must take affirmative steps to see that his petition is filed in the Court of Appeals within thirty days after the issuance of the mandate of this Court in this cause.

Keller, Presiding Judge

Date delivered: November 23, 2005

Publish

1. 956 S.W.2d 25 (Tex. Crim. App. 1997).

2. Batson v. Kentucky, 476 U.S. 79 (1986).

3. 988 S.W.2d 770 (Tex. Crim. App. 1999).

4. 466 U.S. 668 (1984).

5. Hernandez, supra.

6. 988 S.W.2d at 772.

7. 169 S.W.3d 223 (Tex. Crim. App. 2005).

8. Id. at 231-232.

9. Id.

10. Id. at 231.

11. Id.

12. Id.

13. Id. at 232 (quoting from Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000); internal quotations omitted, brackets omitted from inserted material).

14. Id.

15. Tex. Code Crim. Proc., Art. 42.12, §5(b)(deferred adjudication defendant cannot appeal trial court's decision to adjudicate guilt).

16. Tex. R. App. P. 25.2(a)(2)(plea bargaining defendant who gets benefit of the bargain can appeal only those matters raised by written motion, filed, and ruled upon before trial or where trial court gives permission to appeal).

17. 994 S.W.2d 658 (Tex. Crim. App. 1999)(defendant cannot attack original plea in appeal from revocation of deferred or regular probation).