When Keeping Kids Is a Crime

Hammack v. State, No. PD-0636-19, Tex. Crim. App. May 19, 2021. Judge Newell wrote for the 7-2 majority; Presiding Judge Keller and Judge Keel dissented.

Michael Anthony Hammack was convicted of the crime of interference with child custody and sentenced to five years’ probation. On appeal, he argued that the evidence was legally insufficient to convict him because there was no proof he knew the express terms of the order he was charged with violating. The Texarkana Court of Appeals affirmed the conviction, as did the Texas Court of Criminal Appeals.

Hammack was charged and convicted of interference with child custody. The Penal Code makes it a state jail felony to “take[] or retain[] a child younger than 18 years of age” if the person taking or retaining the child “knows that [doing so] violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody.” Tex. Penal Code § 25.03(a)(1), (d).

I want to point out that neither the majority nor the dissent discussed the taking-or-retaining element in any depth. According to the majority’s recitation of the facts, Hammack’s daughter escaped CPS custody and went to her grandmother’s. Even if she wound up in Hammack’s physical custody, one could argue that he never took her from CPS’s custody. Was it sufficient that he “took” her from her grandmother’s? The court doesn’t say.

Instead, the appeal focused on Hammack’s knowledge of the express terms of the order he violated. Hammack did not challenge the existence of the order or that he violated it. He conceded that CPS had obtained an emergency order giving CPS temporary custody of his 16-year-old daughter. He also conceded that he violated that order by keeping the girl for about a week after she “escaped” CPS custody. (Among other things, he chased CPS out of his mother’s house, where the girl was staying, and took her to Oklahoma for a shotgun wedding to her 18-year-old boyfriend.)

Instead, Hammack challenged his conviction on the ground that he could not have known that keeping the girl for a week “violate[d] the express terms” of the order because he had not been formally (or informally) served with the order or told its express terms.

The majority concluded that he had been told the express terms and held that formal service of the order violated is not an element of the crime of interference with child custody. The statute only requires proof that the defendant knew his conduct violated the express terms of the order. While proof of service “may provide sufficient evidence of knowledge in a given case,” it is not necessary in every case. The State can also carry its burden with circumstantial evidence. In this case, the State presented evidence that Hammack was told about the order on three different occasions, including specifically the “express term” that gave CPS custody.

The dissent disagreed about whether he was told the express terms of the order. The dissent emphasized the distinction between being told that CPS had “custody” and being told that CPS had “sole custody.” Here, Hammack was told several times that CPS had been given “custody,” not “sole custody.” Without that key word (“sole”), the dissent would have determined that there was not sufficient evidence to support the conviction.

The majority took some pains to distinguish Tex. Penal Code § 25.07 and Harvey v. State, 78 S.W.3d 368 (Tex. Crim. App. 2002). Section 25.07 criminalizes the violation of a list of “statutorily defined orders, each one having specific notice requirements, among them actual service, necessary to make each respective order ‘binding’.” Section 25.03, on the other hand, criminalizes the violation of custody orders, which may or may not require prior notice to be binding. For example, an ex parte CPS removal order is binding with or without service for up to 14 days. See Tex. Fam. Code § 262.102, 103.

In sum—formal service of the violated order is not an essential element of the crime of interference with child custody. Though the state must prove knowledge of the express terms of the order, it may do so through circumstantial evidence, such as testimony by a witness that she told the offender about the order in sufficient detail that he knew what its express terms required.

Nguhlefeh Njilefac v. Garland, No. 20-60520, 5th Circuit (Mar. 24, 2021)

Nguhlefeh Njilefac v. Garland is an interesting case if you ever do any work with unsworn declarations.

An important question in that case was whether Nguhlefeh Njilefac’s counsel received certain documents in the mail. The Fifth Circuit recognizes a presumption of receipt when documents are properly mailed. Nunes v. Sessions, 882 F.3d 499, 506 (5th Cir. 2018). Here, Nguhlefeh Njilefac tried to overcome the presumption with two declarations. The first declaration was from his counsel, who declared that he had never received the briefing schedule. The second declaration was from his counsel’s officemate, who declared “to my knowledge,” neither he nor his staff had seen the briefing schedule. The Fifth Circuit agreed with the BIA that the declarations did not overcome the presumption.

First, mere denial of receipt “is typically insufficient to cast doubt on a delivery.” Slip Op. at 5 (citing In re Eagle Bus Mfg., Inc., 62 F.3d 730, 735 (5th Cir. 1995); Mauricio-Benitez v. Sessions, 908 F.3d 144, 150 (5th Cir. 2018); Nunes v. Sessions, 882 F.3d 499, 507 (5th Cir. 2018).

Second, while both declarations contained “under penalty of perjury” language, neither declaration contained language indicating “that the foregoing is true and correct.” See 28 U.S.C. § 1746 (setting forth the formal requirements for an acceptable unsworn declaration). That defect alone may or may not eliminate the evidentiary value of the declaration. Slip Op. at 5 n.4 (comparing Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (concluding that a declaration that did not include either phrase did not comply with § 1746 because it “allow[ed] the affiant to circumvent the penalties for perjury”); with Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013) (considering a qualifying declaration as equivalent to a sworn affidavit in determining whether a genuine issue of material fact existed for the purposes of a motion for summary judgment).).

Third, making a declaration “to the best of my knowledge” effectively voids the evidentiary value of the declaration. Slip Op. at 3 n.1 (citing Henderson v. Dep’t of Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990) (concluding that an affidavit made “to the best of [declarant’s] knowledge and belief” was not based on personal knowledge and was therefore “legally insufficient” to prove the truth of its contents); Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir. 2000) (same); Garmon v. Lumpkin Cnty., 878 F.2d 1406, 1408–09 (11th Cir. 1989) (same); see also Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) (per curiam) (“[O]nly [an] affidavit made on personal knowledge has any value (‘to the best of my knowledge and belief’ is insufficient).”).

Property Divisions Are Forever (Maybe)

The case of the week is Moore v. Moore, 568 S.W.3d 725 (Tex. App.—Eastland 2019, no pet.). Divorces are never pretty, and they are seldom quick. They usually keep going long after the judge has signed the decree. But this week’s case takes it to a new level.


Ronald and Zuzanna Moore were divorced in June 2005. During the proceedings, Ronald gave Zuzanna “a list of his mineral interests.” 568 S.W.3d at 733. The divorce decree, however, did not list the mineral interests. Instead, it divided the “oil, gas or other minerals . . . standing in the name of the parties or either party” equally between them, and did not award any oil and gas interests to either party as their separate property.  568 S.W.3d at 728. Ronald filed a motion for new trial, but he did not appeal.

Eight years later, Zuzanna discovered “multiple interests that [Ronald] had not included on the list.” 568 S.W.3d at 733. She contacted the producers and instructed them to pay her half the revenues from those interests. They did. When Ronald found out, he filed a petition for clarification in the divorce court, asking that court to clarify that the oil and gas interests were his separate property. In response, Zuzanna filed a motion to enforce the decree, asking the Court to order Ronald to execute the necessary documents to properly transfer her share of the oil and gas interests to her. The divorce court denied Ronald’s petition for clarification and granted Zuzanna’s motion to enforce. Ronald appealed, making four interesting (if unsuccessful) arguments. (He made others, but they are not as interesting and did not succeed.)


Ronald argued that Zuzanna’s claims were barred by the statute of limitations. Chapter 16 of the Civil Practice & Remedies Code contains most of the statutes of limitations in Texas law. The two statutes he relied on were the 4-year statute for foreclosing on liens on real property and the 4-year “residual statute,” for actions “for which there is no express limitations period.” Tex. Civ. Prac. & Rem. Code §§ 16.035, 16.051. But statutes of limitations only apply to independent causes of action. Zuzanna, however, was not asserting an independent cause of action; she was trying to enforce a final judgment—to obtain the relief she had already been awarded. Therefore, the ordinary statutes of limitations set forth in Chapter 16 do not apply.

Rather, Chapter 9 of the Family Code governs the time limits for enforcing divorce decrees. Chapter 9 provides that a party has two years to enforce the division of “tangible personal property” and “future property.” Tex. Fam. Code § 9.003. But Chapter 9 is silent about the time limit for enforcing the division of real property.

We presume that the legislature chooses the language of a statute carefully, purposefully choosing each word that it includes and purposefully omitting words that it did not include. [¶] We believe it to be significant that the legislature did not include provisions in Chapter 9 of the Family Code that limit the time within which a party must seek to enforce the division of real property.

568 S.W.3d at 731 (citations omitted). In other words, there is no statute of limitations to enforce a property division (or at least Ronald didn’t carry his burden to prove it). Issue number one overruled.


Ronald argued that Zuzanna’s claims were barred by the related defense of laches. Laches is a time-based defense like limitations, but it is less mathematically strict. The elements of laches are (1) an unreasonable delay caused by the plaintiff in asserting some legal or equitable right, and (2) a goof-faith change in position by the defendant because of the delay.  528 S.W.3d at 732 (citing City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex. 1964)).

But Ronald failed to prove unreasonable delay caused by Zuzanna. First, the reason it took her eight years to find the mineral interests was because Ronald failed to disclose them. Once she found them, she promptly researched the claims, hired lawyers, obtained the appropriate division orders, all “within two years after she discovered the existence of the mineral interests.”  528 S.W.2d at 732. When Ronald sued to stop her from taking the royalties, she promptly filed a counterclaim to enforce the property division. None of that delay was unreasonable. No unreasonable delay means no laches defense. Issue number two overruled.

Separate Property

Ronald argued that the oil and gas interests were his separate property and always had been, so the trial court could not divest him of his separate property rights, either in 2005 or 2013. But the time for proving separate property rights is the divorce itself, not in a later enforcement action. Any property held at the time of the divorce is presumed to be community property.  See Tex. Fam. Code § 3.003(a), Pearson v. Fillingim, 332 S.W.3d 361 (Tex. 2011). Because Ronald did not prove the separate property character of his mineral interests during the initial divorce proceedings, that issue could not be revisited—or visited for the first time—at the enforcement stage.

Adverse Possession

Ronald argued that, even if the mineral interests were community property and even if half the interests were awarded to Zuzanna in the divorce, he nevertheless should get to keep them under the doctrine of adverse possession. Adverse possession is one of the most controversial concepts in real property law. The basic idea is that a non-owner of real property can become the owner by making “an actual and visible appropriation” of the real property that “is inconsistent with and is hostile to the claim of another person” for a certain amount of time. Tex. Civ. Prac. & Rem. Code § 16.021(1). The requisite duration of the appropriation depends on the circumstances. For example, a person who merely cultivates, uses, or enjoys property “in peaceable and adverse possession” must do so for 10 years, while somebody who cultivates, uses, or enjoys the property and pays taxes and registers a deed need only wait 5 years. See Tex. Civ. Prac. & Rem. Code §§ 16.025(a); 16.026. Not everything can be adversely possessed. Mineral interests can be adversely possessed, but “nonpossessory interests, including royalty interests, are not subject to adverse possession.”  568 S.W.3d at 733 (citing Nat. Gas Pipeline Co. of America v. Pool, 124 S.W.3d 188, 192 (Tex. 2003)). The distinction between a mineral interest and a royalty interest is a bit beyond my ken, but the important thing to remember is that the adverse possessor bears the burden of proof. Ronald, however, “did not meet his burden to show ‘an actual and visible appropriation’ of the property.” 568 S.W.3d at 734. No appropriation means no adverse possession.

How Not to Keep a Secret

The case of the week is Denny v. State, No. 11-18-00270-CR, ___ S.W.3d ___ (Tex. App.—Eastland Oct. 30, 2020, no pet. h.) (Google Scholar, Slip Opinion).

Reversals on appeal in criminal cases are rare. When they do happen, it’s usually because of some procedural problem in the courts below—an unconstitutional search, an unreliable confession, an unfair trial. Reversals on sufficiency grounds—there wasn’t enough evidence to convict—are exceedingly, vanishingly rare. But the argument continues to be made because of cases like this one.

In August 2012, an unresponsive child was taken to Abilene Regional Medical Center. The hospital called CPS, which sent Investigator Tapia to check on the other children in the home. As she was leaving, the child in the hospital was pronounced dead. Sergeant Beard with the Abilene Police Department took a photograph (a digital photograph) of the child and sent it to Tapia’s supervisor, McDaniel. McDaniel showed the APD photo to Tapia (to prepare her for what she might find) and sent a copy to her supervisor, Gretchen Denny. When Tapia arrived at the home, she determined that the children needed medical attention.

Tapia took the children to the hospital and wanted to show the APD photo to medical staff, “[h]oping that the photograph would help the medical staff diagnose and treat the two children.” Slip Op. at 3. But Tapia didn’t actually have the APD photo; she had only seen it on McDaniel’s phone. Tapia asked McDaniel to send her the photo. McDaniel checked with Denny, who said “No . . . delete it.” Slip Op. at 3. Meanwhile, Sergeant Beard sent the APD photo to Detective Shoemaker, who was at the hospital. The opinion is silent on whether Shoemaker showed the APD photo to the medical staff or whether it helped medical staff diagnose and treat the children’s injuries.

The fallout from this case was huge. The mother of the children was sentenced in 2014 to 30 years in prison. The father of the children (who was on deployment  with the Air Force at the time) was prosecuted through the Air Force and initially sentenced to 3 years’ confinement on one count of adultery and three counts of child neglect. The regional supervisor for CPS was indicted, though the charges against her were ultimately dismissed.

And Gretchen Denny was indicted in December 2015 for concealing evidence in violation of Tex. Penal Code § 37.09(a)(1). She was convicted by a jury in April 2018 and sentenced to six years’ confinement, with the sentence suspended and community supervision imposed for six years. She appealed and argued, among other things, that the evidence was insufficient to support her conviction.

The first hurdle in a sufficiency challenge is pretty high. The court of appeals must consider “all of the evidence admitted at trial,” both direct and circumstantial, and “including evidence that may have been improperly admitted.” Slip Op. at 4. When there are conflicts in the evidence, the court of appeals will “defer to the jury” and “presume that the jury resolved the conflicts in favor of the verdict.” Slip Op. at 4. Finally, the court will compare the evidence, including its “combined and cumulative force,” to the “hypothetically correct jury charge” to determine whether “a rational jury could find each essential element of the offense beyond a reasonable doubt.” Slip Op. at 4 (citing Jackson v. Virginia, 443 U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).

In this case, the hypothetically correct jury charge would have required the jury to find that she actually concealed the APD photo by directing CPS personnel to refuse to provide it. Slip Op. at 6. But, she argued, CPS got the APD photo from the APD, so she could not possibly have concealed the APD photo from the APD. The court of appeals agreed:

Independent of whether law enforcement in this case spoke to Appellant or any other CPS investigator, law enforcement knew that the photograph existed and knew that they had a copy of it. Law enforcement had no difficulty locating the photograph in question. In fact, the evidence established that the photograph was already in the possession of the APD, and Detective Shoemaker ultimately received a copy of the photograph from Sergeant Beard.

Slip Op. at 8. Accordingly, “there is no evidence from which a rational trier of fact could have found beyond a reasonable doubt that the photograph was actually concealed.” Slip Op. at 8. Without any evidence of actual concealment, the evidence was insufficient to sustain a conviction for concealment.

The second hurdle in the sufficiency analysis is equally high. A conviction for one offense (say, concealing evidence) must be “reformed” to a conviction for a lesser included offense (say, attempting to conceal evidence) if “(1) in the course of convicting the appellant of the greater offense, the factfinder must have necessarily found every element of the lesser included offense; and (2) . . . there is sufficient evidence to support a conviction for the lesser included offense.” Slip Op. at 8–9 (citing Thornton v. State, 425 S.W.3d 289 (Tex. Crim. App. 2014)). The court of appeals answered the first question without much discussion. Slip Op. at 9.

But as to the second question: “The dispositive question to be decided is whether there was sufficient evidence of a specific intent to conceal the photograph.” Slip Op. at 10. Denny argued that she could not have had the specific intent (or conscious objective) to conceal the APD photo because she knew that APD already had the photo (because she had gotten it from APD) and that she could not possibly conceal the APD photo from APD. In other words, she could not specifically intend something she knew was impossible.

The Texas Court of Criminal Appeals has dealt with this issue before: “it is less likely (though not impossible) that the appellant would harbor a ‘conscious objective’ to cause a result he knew to be impossible.” Thornton, 425 S.W.3d at 305. The line seems to be drawn somewhere around plausibility: “Although Thornton was not likely to succeed in his attempt to hide the pipe, the court found that a jury could reasonably infer that Thornton intended to conceal the pipe based on its material composition, size, and the dimly lit hour of the day.” Slip Op. at 10–11 (citing Thornton, 425 S.W.3d at 305). In other words, what Thornton called an “impossible” result was actually only unlikely one and therefore something he could have intended.

But this case is different:

Here, the object at issue is a digital photograph—something that, by its very nature, is easily copied, shared, and stored in multiple locations. . . . Although it is not impossible for a person to harbor a conscious objective to produce an impossible result—here concealing something from someone who already has a copy—the unique facts surrounding the creation of the photograph by the APD, combined with Appellant’s knowledge about the photograph’s origin, weigh heavily against a finding that Appellant intended to conceal the photograph from the investigation.

Appellant, in her police interview, stated that she knew McDaniel had received the photograph from the APD. Further, the photograph remained in the possession of the APD throughout the investigation: Sergeant Beard took the original photograph and it never left his possession; he eventually sent a copy of it to Detective Shoemaker.

Slip Op. at 11. In other words, concealing a digital photograph from the person who took it is impossible (at least under the facts alleged in this case), so no rational juror could have concluded that she intended to conceal the APD photo from the APD. Without sufficient evidence that she specifically intended to conceal the APD photo, there was not sufficient evidence to sustain a conviction for attempting to conceal.

Gretchen Denny cleared both hurdles on the sufficiency challenge track, so her conviction was reversed.

This case is food for thought in a couple ways. First, what does this mean for future prosecutions for deleting pictures from a phone? Second, what the heck is going on here? I fear that this prosecution went as far as it did because of petty grievances and interpersonal squabbles. Truth be told: one of the greatest dangers to the rule of law is the use of law by local officials to settle personal scores. We must be vigilant not to let that happen.

Bankruptcy, Filing Fees, and the Constitution

The case of this week is In re Buffets LLC, No. 19-50765 (5th Cir. Nov. 3, 2020) (slip op.; Google Scholar).

When I was in college, doing moot court, I dreamed of one day doing “constitutional law.” In my head, constitutional law was this amazing and heady thing, dealing with rights to esoteric things like Life and Liberty and Property and Due Process. I imagined myself sitting in an appellate courtroom, with oak paneling , hardwood floors, and judges in wigs, waxing philosophical: “Mm, yes, your honor, but exactly how much ‘process’ is due?” When I got into the real world of practice, I learned that most of the practice of law is people on one side trying to find some excuse not to pay the people on the other side. Questions of how much process is due rarely come up. But they do, occasionally, and almost always because the side that doesn’t want to pay has a creative lawyer.

Buffets LLC operates a chain of buffet restaurants, including Ryan’s Family Steakhouse. It filed for bankruptcy under Chapter 11 in 2016, confirmed a plan in 2017, and was still making disbursements under that plan in 2018, when Congress amended 28 U.S.C. § 1930(a)(6).

Section 1930 governs the fees payable in bankruptcy cases, and paragraphs (a)(6) and (7) provide for quarterly fees payable in Chapter 11 cases. Subsection (a)(6) says that in most of the country (in “UST courts”) a “quarterly fee shall be paid to the United States trustee” based on the amount of disbursements by the debtor under the plan in that quarter. Subsection (a)(7) says that, in the rest of the country (in “BA courts”), the Judicial Conference “may require the debtor . . . to pay fees equal to those imposed by paragraph (6) of this subsection.” There  are two paragraphs because the country operates two systems for administering bankruptcy cases: the UST system and the BA system. U.S. trustees and bankruptcy administrators do essentially the same thing: they both monitor bankruptcy cases to make sure fees are paid, schedules and reports are filed, bank accounts are opened properly, etc. But U.S. trustees are funded by filing fees while bankruptcy administrators are funded out of the general budget of the judiciary. So: Congress controls quarterly fees in UST courts while the judiciary, through the Judicial Conference, controls quarterly fees in BA courts.

In 2018, to address budgetary problems in the UST system, Congress raised the cap on quarterly fees under section 1930(a)(6) from $30,000 to $250,000. The change was effective on a certain date and applied to all Chapter 11 cases pending on that date. In 2019, the Judicial Conference raised the quarterly fees under section 1930(a)(7) to match Congress’s raise, but limited the effect of the change to new cases filed on or after that date.

Now, like I said, Buffets LLC was still making disbursements under its Chapter 11 plan when the amendment came into effect in 2018. Because Buffets LLC had filed in the Western District of Texas (a UST court), its quarterly fee increased from $30,000 to $250,000. As you might expect, Buffets LLC resisted the fee hike. It raised number of factual and legal challenges—including that the fees were unconstitutional because they violate the Bankruptcy Clause of the Constitution.

Wait. What? Filing fees are unconstitutional? And there’s a bankruptcy clause in the Constitution? Yep:

The Congress shall have Power . . . To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States[.]

U.S. Const. art. I, § 8, cl. 4. “The Bankruptcy Clause ‘might win’ a ‘contest for least-studied part’ of Article I’s congressional powers.” Slip Op. at 14. It “received ‘meager’ attention” at the Constitutional Convention after Charles Pinckney proposed it alongside the Full Faith and Credit Clause. “Roger Sherman raised the only doubt about the Bankruptcy Clause, expressing concern because ‘in England, some bankrupts were sentenced to death’.” Slip Op. at 14-15 n.8. The Bankruptcy Clause is mentioned only once in the Federalist Papers: “The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question.” The Federalist No. 42. So if you’ve never heard of it before, you’re in good company.

The lawyers for Buffets LLC, though, had heard of it. They argued that a scheme under which one set of fees was payable in one part of the country and a different set of fees was payable in a different part is unconstitutional because it is not “uniform . . . throughout the United States.” [n.1]

The Fifth Circuit was not persuaded. The Bankruptcy Clause “forbids only two things . . . arbitrary regional differences in the provisions of the bankruptcy code [and] private bankruptcy bills.” In re Reese, 91 F.3d 37, 39 (7th Cir. 1996). [n.2] The fee statute is clearly not a private bankruptcy bill, but is it an arbitrary regional difference? Not according to the majority: regional difference yes, but it is justified by the different funding mechanisms for UST courts and BA courts and so is not “arbitrary.” After all, Congress made two systems for a reason, so Congress can fund the two systems however best it makes sense to fund them. If you’re scratching your head, again, you’re not alone. Doesn’t that answer just beg the question about the uniformity—and therefore constitutionality—of the dual UST-BA system? Maybe, but Buffets LLC “do not ask us to ‘hold that the permanent division of the country into UST districts and BA districts violates the Bankruptcy Clause.” Slip Op. at 19. Constitutional question averted.

But maybe not forever. The dissent relied heavily on St. Angelo v. Victoria Farms, Inc., in which the Ninth Circuit held that the dual UST-BA system is dis-uniform and therefore unconstitutional. 38 F.3d 1525 (9th Cir. 1994), amended by 46 F.3d 969 (9th Cir. 1995). Now that we have sophisticated lawyers fighting over hundreds of thousands of dollars, the issue may come to a head sooner rather than later.


  1. In fact, because of the geography of UST courts and BA courts, Buffets LLC could have argued that there is one part of the United States where the fees are not uniform even within city limits. The federal courthouse in Texarkana sits on the state line. The bankruptcy courts on one side, in the Eastern District of Texas, are UST courts. The bankruptcy courts on the other side, in the Western District of Arkansas, are BA courts.
  2. The Fifth Circuit had to cite the Seventh Circuit because Supreme Court case law is not particularly helpful—it only provides that the Bankruptcy Clause is “not an Equal Protection Clause for bankrupts.” Railway Labor Executives Ass’n v. Gibbons, 455 U.S. 457, 470 n.11 (1982). Whatever that means.

The Case of the Precedent for Refusing to Leave Office

The case of the week is Ex Parte Rodriguez, 39 Tex. 705 (Tex. 1873).

Jose Rodriguez was arrested on December 13, 1873, for voting twice in the gubernatorial election of December 2, 1873. Three days later, he filed a petition for writ of habeas corpus. He was represented by former Texas Governor A.J. Hamilton and made a simple argument:

  1. Rodriguez was arrested for voting twice, but
  2. the election of December 2, 1873, was unconstitutional and therefore invalid, so
  3. it could not be a crime to vote twice in that election.

The State was represented initially by Frank Spencer, the district attorney for Harris County. He was not opposed to the relief sought — he agreed that Rodriguez should be released — but his basis was that the arrest was not a real arrest but an engineered ploy to test the constitutionality of the election. He submitted an affidavit from George Goldthwaite to the effect that the former sheriff of Harris County (A.B. Hall) paid Rodriguez to get arrested and paid Hamilton to file the petition. When the court declined to accede to his request, he withdrew and the court appointed Bingham Trigg, the district attorney of Travis County, to take over for the state and defend the constitutionality of the election. Trigg made many of the same arguments as Spencer.

The court ultimately sided with Rodriguez. The Constitution of 1869 provided:

All elections for State, district and county officers shall be held at the county seats of the several counties, until otherwise provided by law; and the polls shall be opened for four days, from 8 o’clock a.m. until 4 o’clock p.m. of each day.

Tex. Const. of 1869 art. 3, § 6 (emphasis added). In March of 1873, the Republican-controlled Legislature passed a statute providing that elections could be held in the justice of the peace precincts (which may or may not be in the county seat), but limiting elections “to one day only . . . from 8 o’clock a.m. to 6 o’clock p.m.” The statute also provided that voting more than once in the same election was a felony.

The court was ok with the first part. The location provision of article 3, section 6 was modified by the phrase “until otherwise provided by law.” The March 1873 statute “otherwise provided by law,” so no problem there.

  • The Legislature undoubtedly have the power to provide for holding the elections at places other than the county seats;
  • but it is equally clear that the Constitution is mandatory, and that the Legislature have no power to limit the time within which the elections must be held;
  • and Section 12 of the act of March 31, 1873, is in open conflict with the Constitution, and for that reason is null and void;
  • and no valid election having been held at the city of Houston, in the county of Harris, on the second day of December, 1873, the relator is not guilty of a felony, and is therefore entitled to his enlargement.

39 Tex. at 774 (bullet points added for clarity). In other words, the semicolon meant that the Legislature could not change the Constitutional mandate of four-day polls, and any election that lasted less than four days was invalid.

But Rodriguez’s release is not quite the end of the story. First, the three judges of that court (Moses B. Walker, Wesley B. Ogden, and John D. McAdoo) collectively came to be called the “Semicolon Court.” Its opinions are generally not considered binding authority on other Texas courts. Second, the case report ends with a note from the reporters:

To the historian, rather than the law reporter, belongs the duty of perpetuating the memory of the events connected with the installment of the State officers chosen at the general election pronounced illegal by this opinion. Those who are not familiar with what followed will find it faithfully detailed in “a lengthy note to Pasehal’s Digest of the Laws of Texas. (Edition of 1874, Vol. 2, page 1398e et seq.) The note contains the dispatches between the President, Attorney-General of the United States, and ex-Governor Davis, in regard to the application made by the latter for military assistance to prevent Governor Coke from occupying the executive office.
We may properly say, that the question before the court in [Ex] Parte Rodriguez received its final practical solution as a political and not a judicial question.

39 Tex. at 776 (reporters’ note).

The sitting governor, Republican Edmund J. Davis, had lost the election of December 2, 1873, to Democrat Richard Coke by something like a 2-to-1 margin. But, following the decision, Davis physically refused to leave office. Coke and the Democrats got the keys to the Capitol and took possession anyway. Davis called in the Travis Rifles (sort of a local militia) to help keep him in office, but they aligned with themselves with Coke. Davis then called on President Grant to send in federal troops, but he too declined. Davis found himself on the bad end of Andrew Jackson’s warning — “John Marshall has made his decision; now let him enforce it!” When Davis realized he couldn’t enforce the Semicolon Court’s judgment, he left the office, locked the door on his way out, and took the keys. Coke was inaugurated as governor the next day, and his first act of office was literally to break down the door with an axe.

After Davis, there wouldn’t be another Republican in the governor’s mansion for 105 years.

The Case of the Precedented Nomination

I decided to take a break from the case of the week this week because, you know, things are happening in the world. You may have heard that the Republican-controlled Senate just confirmed Amy Coney Barrett to the United States Supreme Court. You may have heard that her nomination so close to the election was “unprecedented.” That, strictly speaking, is true, but the sentiment is false. While I appreciate the rhetorical efforts, American history is far too interesting to gloss it over with rhetoric.

How close is too close?

Has anyone ever been nominated and confirmed in the month or two before an election? No. She is the first. Since the ratification of the Constitution in 1788, there have been 120 confirmed Supreme Court justices. Of those, only 31 were nominated less than a year before the next election. Those 31 include:

The careful reader will note that that is only 23. If 31 were nominated less than a year before the election, what about the other 8? That’s the juicy stuff.

Benign Post-Election Nominations

By my count, eight justices were nominated and confirmed after the election but before inauguration. Three — Salmon P. Chase in 1864, Ward Hunt in 1872, and William Brennan in 1957 — were nominated by presidents who had just won reelection (Lincoln, Grant, and Eisenhower, respectively). A fourth (William Burnham Woods in 1880) was nominated by a president (Hayes) whose party had just won the election, though he wasn’t on the ticket.

Yawn. Boring. I promised juicy stuff. Let’s talk about the four who were nominated by outgoing presidents on the eve of the transfer of power.

Howell Edmunds Jackson

Howell Edmunds Jackson was nominated by Benjamin Harrison on February 2, 1893, just thirty days before the inauguration. Harrison, an Indiana Republican, had lost the election of 1892 to New York Democrat Grover Cleveland, 277 to 145. At the same time, the Senate flipped from a 47-39 Republican majority to a 42-38 Democrat majority. On January 23, 1893, about halfway between the election and the inauguration, Justice Lucius Quintus Cincinnatus Lamar died. Lamar had been nominated by Cleveland during his first term, so putting a Republican in his seat would be something of a coup, especially since the American people had just rejected Harrison and his party and brought Cleveland back.

But Harrison nominated Jackson, a Tennessee Democrat, appointed by Cleveland to the Sixth Circuit during his first term seven years earlier. My guess is that Harrison tried to find a Democrat who would be palatable to the Republicans. The Senate confirmed Jackson by voice vote on February 18, just two weeks before Cleveland’s inauguration. Jackson served only two years on the Supreme Court before dying of tuberculosis. He made two notable contributions: voting with the Democrats in the Income Tax Case and inventing the Supreme Court clerk.

Peter Vivian Daniel

Peter Vivian Daniel was nominated by Democrat Martin Van Buren on February 26, 1841 — exactly one week before William Henry Harrison’s inauguration as the first Whig president.

Andrew Jackson was extremely popular. But his vice president Martin Van Buren . . . let’s just say that the Little Magician was great at winning other people’s elections. In 1836, he rode Jackson’s coattails to victory over a divided Whig Party, 170-73-26-14-11 (yes, the Whigs nominated four candidates). By 1840, the Whigs had culled out their best ticket: Tippecanoe and Tyler Too. Harrison beat Van Buren, 234 to 60, and the Whigs gained six seats and took over the Senate, shifting from a 21-29 minority to a 27-22 majority.

So when Jackson-appointee Philip Pendleton Barbour died of a heart attack just a week before Harrison’s inauguration, the Democrats had to act fast or lose the seat. Barbour died on a Thursday; on Saturday, Van Buren nominated Peter Vivian Daniel, a federal district judge in Virginia, to the seat. The Whigs mobilized, but mobilization was hard in 1840. Only one Whig made it to the vote. [n.1] Daniel was confirmed by a 22-5 vote on March 3, 1841 — the day before Harrison and the Whigs assumed power.

Daniel served 19 mostly forgettable years. Most notably, he concurred in the Dred Scott decision, basing his decision on openly racist thinking. The most interesting thing about the Daniel nomination is what happened four years later.

Samuel Nelson

After Harrison beat Van Buren in 1840, Tippecanoe famously gave a long speech in the winter cold and died just a month into office. John Tyler assumed the presidency and was not well-liked. He has been accused of being a WINO (a “Whig in Name Only”), and the Whigs wouldn’t work with him on anything. Two justices died during his presidency: Smith Thompson (a Monroe appointee) in December 1843 and Henry Baldwin (a Jackson appointee) five months later. Both seats sat vacant for most of the rest of Tyler’s presidency, though not for lack of effort on his part.

Tyler nominated his Treasury Secretary, John Spencer, to succeed Thompson in January 1844. The Whigs in the Senate rejected Spencer three weeks later, 26 to 21. In March, Tyler nominated Reuben Walworth, the long-time Chancellor of New York (at the time, the highest judicial office in New York). When Baldwin died in April, Tyler nominated Edward King, a judge in Pennsylvania, for Baldwin’s seat. The Senate rejected both Walworth and King that summer.

Meanwhile, in the election of 1844, the Whigs replaced Tyler with Henry Clay on their ticket. Clay lost to Polk, 170 to 105, and the Democrats took back the Senate, shifting from 23-27 minority to a 27-24 majority. Facing the lack of both the power to nominate and the power to confirm, the Whigs finally worked with Tyler. In February 1845, less than a month before Polk’s inauguration, Tyler nominated New York trial judge Samuel Nelson to Thompson’s seat and Pennsylvania attorney general John Read to Baldwin’s. Nelson was confirmed by a voice vote; Read never got a vote.

The Whigs had an opportunity in 1844 to take two seats from the Democrats. Instead, they fought their own president and only got to take one seat, and that under icky circumstances. It shouldn’t be any surprise that the Whigs were out of business less than a decade later. Nelson, on the other hand, served on the Supreme Court for 27 years. He wrote a handful of notable opinions, including a concurrence in the Dred Scott decision (opining that federal courts had no jurisdiction over freedom suits) and a dissent in the Prize Cases (opining that Lincoln’s naval blockade of Southern ports was beyond the scope of the president’s war powers).

So just to be clear: Van Buren and the Democrats lost the election of 1840 but squeaked in their own nominee anyway in February of 1841. Four years later, Tyler and the Whigs lost the election but squeaked in their own nominee anyway in February of 1844. Turnabout, as they say, is fair play.

John Marshall

This discussion, of course, would be incomplete without the most consequential post-election nomination: John Marshall.

You know the story. John Adams and the Federalists got beat by Thomas Jefferson and the Democratic-Republicans in 1800, though the Federalists managed to hold on to the Senate. Sitting Chief Justice Oliver Ellsworth got sick and resigned shortly after the election. Adams’s first pick, John Jay, declined to resume the post he had midwifed from 1789 to 1795. Adams then nominated Marshall, his secretary of state, on January 20, 1801. The Federalist-controlled Senate confirmed by voice vote a week later. A few weeks after that, Adams engaged in the shenanigans that led to Marbury v. Madison, and the rest is history. Marshall sat on the court for the next 34 years, outliving the Virginia Dynasty and taking on the Jacksonian Revolution.


  1. According to one telling, the Whigs were purposely absent, in an attempt to deprive the Senate of a quorum. If so, somebody should have told Oliver Smith of Indiana.

Clear and Unequivocal as Mud

This week’s case is a funny little case from 2018: Wilmington Trust, N.A. v. Rob, 891 F.3d 174 (5th Cir. 2018). Kcevin and Angel Rob took out a home equity loan in July 2007. They stopped paying on the loan in March 2011. Over the next two years, Wilmington Trust [n.1] sent the Robs a series of notices of default, of intent to accelerate, and of acceleration. But, in November 2014, Wilmington Trust sent the Robs a notice of rescission of acceleration. The Robs continued not paying their mortgage, and Wilmington Trust sued for foreclosure in June 2015. The district court entered judgment in favor of Wilmington Trust, but the Fifth Circuit reversed.

Texas courts require clear and unequivocal notice of (1) intent to accelerate and (2) acceleration itself. “Unless a lender provides both forms of notice, it may not foreclose.”  Rob, 891 F.3d at 177. Here, Wilmington Trust may have provided clear and unequivocal notice at some point, but the notice of rescission in November 2014 made all of that very much less clear and unequivocal. Wilmington Trust, therefore, failed to prove that it had provided clear and unequivocal notice and was, accordingly, not entitled to a judgment of foreclosure. Trial court judgment reversed and rendered; game over.

BUT — this case should not be read as saying that Wilmington Trust can never foreclose. Rather, it should be read as saying that Wilmington Trust cannot foreclose yet. If the home equity loan has not yet matured, Wilmington Trust could probably just re-issue the notices of intent to accelerate and of acceleration, then sue for foreclosure. Sometimes you can stick it to the man a couple times, but you can’t stick it to him  forever.

  1. Technically, the notices were sent by one of Wilmington Trust’s predecessors in interest,  but that detail is not particularly important.

Minors must be served; no ifs, ands, or buts about it

One of my biggest fears as a lawyer—the thing that makes me wake up in the middle of the night—is that there is some technical gotcha that I have missed, that nobody complained about, but that nobody had to complain about. A recent case out of the Austin Court of Appeals helps explain what I’m talking about. In N.J. v. DFPS, No. 03-20-00259-CV (Tex. App.—Austin Oct. 9, 2020, no pet. h.), the court of appeals reversed and remanded a trial court order terminating the parental rights of a minor because minors cannot waive the requirement of formal service of process, no matter how much they participate in the lawsuit and trial.

The facts are these: N.J. was born in 2003. She gave birth to L.B. (the “Child”) in May 2018, at the age of fifteen. Two months later, on July 23, 2018, CPS received a report of neglectful supervision after N.J. tested positive for “illegal-drug use.” Slip Op. at 1. Ten days after that, CPS filed a petition to terminate N.J.’s rights and obtained emergency orders removing the child from N.J.’s care. An attorney was appointed for N.J., and for the next 16 months, N.J. appeared at and participated in hearings. In January 2020, N.J. presented her case to a jury and asked them (a) not to terminate her rights and (b) to appoint her ex-boyfriend’s mother (the Child’s paternal grandmother) as the managing conservator. The jury said no, and the trial court entered a final judgment in line with the verdict.

N.J. appealed, arguing that the trial court’s judgment had to be vacated because the fact that she was never actually, formally served with process meant that the trial court never actually obtained personal jurisdiction over her. In America, a court cannot render a judgment without having personal jurisdiction over all the parties. This is obtained primarily in one of two ways: either through consent (e.g., filing or participating in the lawsuit) or through compulsion (e.g., being served with citation or process).

Ordinarily, when a defendant appears and participates in a lawsuit, that defendant is deemed to have consented to the trial court’s jurisdiction and cannot later complain about the lack of formal service. But minors are different. Minors are “non sui juris, meaning [they are] considered to be under a legal disability and therefore lack[] the capacity to sue or consent to suit.” Slip Op. at 5 (citing In re M.M.S., No. 14-16-00349-CV (Tex. App.—Houston [14th Dist.] Sept. 22, 2016, pet. denied)). Because a minor legally cannot consent to suit, the minor’s voluntary appearance or participation in a lawsuit cannot count as waiver of service. See In re W.L.C., 562 S.W.2d 454, 455 (Tex. 1978). This is old, old law in Texas. See Wheeler v. Ahrenbeak, 54 Tex. 535, 539 (1881). The idea is that we would not want to live in a society where a 15-year-old had to defend herself against the rich and powerful, well-organized apparatus of the State without the assistance of some adult on her side (other than her attorney).

Because a minor cannot consent to being sued, a plaintiff must formally, personally serve either the minor or, in certain circumstances, her legal guardian or next friend. See Slip Op. at 6 (citing several cases and rules outlining this rule). In this case, N.J. was 15 years old when the petition was filed, but neither she nor her legal guardian nor her next friend were formally, personally served with citation. So even though she appeared, answered, and participated in the lawsuit for 16 months and tried her case to a jury, the trial court never obtained jurisdiction over her.

Judgment reversed and remanded for retrial and one more reason for me to wake up in the middle of the night. [n.1]


  1. The reader may be interested to know that the procedural vehicle for challenging defective service is a motion to quash, not a special appearance. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex. 1985); City of Houston v. Bryant, 516 S.W.3d 47, 55 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“Although a claim of a defect in the service of process challenges whether the trial court’s personal jurisdiction over the defendant has been properly invoked, such claims must be raised in a motion to quash, not in a jurisdictional challenge like a special appearance”). If a motion to quash premised on a curable defect in service is or should have been sustained, the remedy is “more time to answer,” not a take-nothing judgment for lack of personal jurisdiction. Fuentes v. Zaragoza, 555 S.W.3d 141, 159–60 (Tex. App.—Houston [1st Dist.] 2018, no pet.); see also Tough Corp. v. Xplore Tech. Corp. of America, No. 03-08-00368-CV (Tex. App.—Austin May 21, 2009, no pet.) (reversing for insufficient service and “remand[ing] the case back to the district court for further proceedings”). In other words, reversal on appeal for insufficient or defective service really means remand for a new trial.

Obstruction is not a crime of moral turpitude (at least in Minnesota)

The Eighth Circuit held in Ortiz v. Barr, 962 F.3d 1045 (8th Cir. 2020), that obstruction of legal process under Minnesota law is not a crime of moral turpitude sufficient to render an alien removable.

Jose Ortiz became a lawful permanent resident of the United States in 2002. Four years later, in 2006, he pleaded guilty to obstruction of legal process in violation of Minn. Stat. § 609.50, subdiv. 2(2) and was sentenced to one year in prison, with a two-year stay on 320 days of the sentence. Seven years after that, in 2013, DHS initiated removal proceedings against him, alleging that he was removable for (a) having been convicted of an aggravated felony and (b) having been convicted of a crime involving moral turpitude. See 8 U.S.C. § 1227(a)(2)(A)(i), (iii).

The first round of appeals involved whether obstruction of legal process is an “aggravated felony.” The IJ said yes, and the BIA affirmed. The Eighth Circuit disagreed, holding that “the minimum amount of force required to sustain a conviction [for obstruction of legal process] is less than the level of force required to constitute a crime of violence.” See Ortiz v. Lynch, 796 F.3d 932, 935-36 (8th Cir. 2015). The Eighth Circuit remanded for determination of whether obstruction of legal process is a crime involving moral turpitude, which resulted in this opinion.

To determine whether a particular crime is a “crime of moral turpitude” under the INA, courts apply the categorical approach. Importantly, the categorical approach is not a historical question; it does not ask any questions about the facts or allegations underlying the actual conviction. Instead, the categorical approach asks whether the elements of the offense “necessarily fit within” the BIA’s generic definition of a crime of moral turpitude. “If there is ‘a realistic probability . . . that the State would apply its statute to conduct that falls outside the generic definition of a crime’ involving moral turpitude, then the conviction does not categorically constitute a crime involving moral turpitude.” 962 F.3d at 1049 (quoting Moncrieffe, 569 U.S. at 191, and others). So you take the generic elements of the crime (not what may or may not have happened or been proved) and compare them to the definition of a crime of moral turpitude. If all the elements fit within the box of the definition, you have a crime of moral turpitude.

The Eighth Circuit discusses the offense of obstruction of legal process first, but I’m going to start with the definition of a crime of moral turpitude. Because the INA itself does not define “crime of moral turpitude,” courts give substantial deference to the BIA’s interpretation. The BIA has developed a two-prong definition. First, the prohibited conduct must be “per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” 962 F.3d at 1048. Second, “the offense must require ‘a culpable mental state’.” 962 F.3d at 1048 (quoting Gomez-Gutierrez v. Lynch, 811 F.3d 1053, 1058 (8th Cir. 2016) and others). In the context of Minnesota criminal law, “culpable mental state” means specific intent (i.e., something like evil intent, depraved or vicious motive, or corrupt mind), not just general intent. A general intent offense “is not considered to be a crime involving moral turpitude.” 962 F.3d at 1050 (citing Matter of Solon, 24 I. & N. Dec. 239, 241 (BIA 2007)).

Turning now to the offense of which Mr. Ortiz was convicted: obstruction of legal process is a general intent offense in Minnesota. 962 F.3d at 1050 (citing State v. Serrano, No. A14-0887, 2015 WL 2456982, at *2 (Minn. Ct. App. May 26, 2015)).

Comparing the elements, then: crimes of moral turpitude require specific intent; obstruction of legal process does not. Therefore, obstruction of legal process is not a crime of moral turpitude and conviction for it will not render an alien removable. Because the BIA reached the opposite conclusion, the Eighth Circuit granted Ortiz’s petition for review and vacated the removal order.