The Body of Christ

Rivers of waters run down mine eyes, because they keep not thy law.

2008-11-24T01:29:00.000-08:00

Psalms

Chapter 119

1 Blessed are the undefiled in the way, who walk in the law of
 the LORD.

2 Blessed are they that keep his testimonies, and that seek him
 with the whole heart.

3 They also do no iniquity

4 Thou hast commanded us to keep thy precepts diligently.

5 O that my ways were directed to keep thy statutes!

6 Then shall I not be ashamed, when I have respect unto all thy
 commandments.

7 I will praise thee with uprightness of heart, when I shall
 have learned thy righteous judgments.

8 I will keep thy statutes

9 Wherewithal shall a young man cleanse his way? by taking heed
 thereto according to thy word.

10 With my whole heart have I sought thee
 from thy commandments.

11 Thy word have I hid in mine heart, that I might not sin
 against thee.

12 Blessed art thou, O LORD

13 With my lips have I declared all the judgments of thy mouth.

14 I have rejoiced in the way of thy testimonies, as much as in
 all riches.

15 I will meditate in thy precepts, and have respect unto thy
 ways.

16 I will delight myself in thy statutes
 word.

17 Deal bountifully with thy servant, that I may live, and keep
 thy word.

18 Open thou mine eyes, that I may behold wondrous things out of
 thy law.

19 I am a stranger in the earth
 me.

20 My soul breaketh for the longing that it hath unto thy
 judgments at all times.

21 Thou hast rebuked the proud that are cursed, which do err from
 thy commandments.

22 Remove from me reproach and contempt; for I have kept thy
 testimonies.

23 Princes also did sit and speak against me
 meditate in thy statutes.

24 Thy testimonies also are my delight and my counsellors.

25 My soul cleaveth unto the dust
 thy word.

26 I have declared my ways, and thou heardest me
 statutes.

27 Make me to understand the way of thy precepts
 of thy wondrous works.

28 My soul melteth for heaviness
 unto thy word.

29 Remove from me the way of lying
 graciously.

30 I have chosen the way of truth
 before me.

31 I have stuck unto thy testimonies
 shame.

32 I will run the way of thy commandments, when thou shalt
 enlarge my heart.

33 Teach me, O LORD, the way of thy statutes; and I shall keep it
 unto the end.

34 Give me understanding, and I shall keep thy law; yea, I shall
 observe it with my whole heart.

35 Make me to go in the path of thy commandments; for therein do
 I delight.

36 Incline my heart unto thy testimonies, and not to
 covetousness.

37 Turn away mine eyes from beholding vanity; and quicken thou me
 in thy way.

38 Stablish thy word unto thy servant, who is devoted to thy
 fear.

39 Turn away my reproach which I fear
 good.

40 Behold, I have longed after thy precepts
 righteousness.

41 Let thy mercies come also unto me, O LORD, even thy salvation,
 according to thy word.

42 So shall I have wherewith to answer him that reproacheth me
 for I trust in thy word.

43 And take not the word of truth utterly out of my mouth; for I
 have hoped in thy judgments.

44 So shall I keep thy law continually for ever and ever.

45 And I will walk at liberty

46 I will speak of thy testimonies also before kings, and will
 not be ashamed.

47 And I will delight myself in thy commandments, which I have
 loved.

48 My hands also will I lift up unto thy commandments, which I
 have loved; and I will meditate in thy statutes.

49 Remember the word unto thy servant, upon which thou hast
 caused me to hope.

50 This is my comfort in my affliction
 quickened me.

51 The proud have had me greatly in derision
 declined from thy law.

52 I remembered thy judgments of old, O LORD; and have comforted
 myself.

53 Horror hath taken hold upon me because of the wicked that
 forsake thy law.

54 Thy statutes have been my songs in the house of my pilgrimage.

55 I have remembered thy name, O LORD, in the night, and have
 kept thy law.

56 This I had, because I kept thy precepts.

57 Thou art my portion, O LORD
 words.

58 I intreated thy favour with my whole heart
 me according to thy word.

59 I thought on my ways, and turned my feet unto thy testimonies.

60 I made haste, and delayed not to keep thy commandments.

61 The bands of the wicked have robbed me
 forgotten thy law.

62 At midnight I will rise to give thanks unto thee because of
 thy righteous judgments.

63 I am a companion of all them that fear thee, and of them that
 keep thy precepts.

64 The earth, O LORD, is full of thy mercy
 statutes.

65 Thou hast dealt well with thy servant, O LORD, according unto
 thy word.

66 Teach me good judgment and knowledge
 commandments.

67 Before I was afflicted I went astray
 word.

68 Thou art good, and doest good; teach me thy statutes.

69 The proud have forged a lie against me
 precepts with my whole heart.

70 Their heart is as fat as grease; but I delight in thy law.

71 It is good for me that I have been afflicted; that I might
 learn thy statutes.

72 The law of thy mouth is better unto me than thousands of gold
 and silver.

73 Thy hands have made me and fashioned me
 understanding, that I may learn thy commandments.

74 They that fear thee will be glad when they see me; because I
 have hoped in thy word.

75 I know, O LORD, that thy judgments are right, and that thou in
 faithfulness hast afflicted me.

76 Let, I pray thee, thy merciful kindness be for my comfort,
 according to thy word unto thy servant.

77 Let thy tender mercies come unto me, that I may live
 law is my delight.

78 Let the proud be ashamed; for they dealt perversely with me
 without a cause: but I will meditate in thy precepts.

79 Let those that fear thee turn unto me, and those that have
 known thy testimonies.

80 Let my heart be sound in thy statutes; that I be not ashamed.

81 My soul fainteth for thy salvation

82 Mine eyes fail for thy word, saying, When wilt thou comfort
 me?

83 For I am become like a bottle in the smoke; yet do I not
 forget thy statutes.

84 How many are the days of thy servant? when wilt thou execute
 judgment on them that persecute me?

85 The proud have digged pits for me, which are not after thy
 law.

86 All thy commandments are faithful
 wrongfully; help thou me.

87 They had almost consumed me upon earth; but I forsook not thy
 precepts.

88 Quicken me after thy lovingkindness; so shall I keep the
 testimony of thy mouth.

89 For ever, O LORD, thy word is settled in heaven.

90 Thy faithfulness is unto all generations
 established the earth, and it abideth.

91 They continue this day according to thine ordinances
 are thy servants.

92 Unless thy law had been my delights, I should then have
 perished in mine affliction.

93 I will never forget thy precepts
 quickened me.

94 I am thine, save me

95 The wicked have waited for me to destroy me
 consider thy testimonies.

96 I have seen an end of all perfection
 exceeding broad.

97 O how I love thy law! it is my meditation all the day.

98 Thou through thy commandments hast made me wiser than mine
 enemies: for they are ever with me.

99 I have more understanding than all my teachers
 testimonies are my meditation.

100 I understand more than the ancients, because I keep thy
 precepts.

101 I have refrained my feet from every evil way, that I might
 keep thy word.

102 I have not departed from thy judgments
 me.

103 How sweet are thy words unto my taste! yea, sweeter than honey
 to my mouth!

104 Through thy precepts I get understanding
 every false way.

105 Thy word is a lamp unto my feet, and a light unto my path.

106 I have sworn, and I will perform it, that I will keep thy
 righteous judgments.

107 I am afflicted very much
 thy word.

108 Accept, I beseech thee, the freewill offerings of my mouth, O
 LORD, and teach me thy judgments.

109 My soul is continually in my hand
 law.

110 The wicked have laid a snare for me
 precepts.

111 Thy testimonies have I taken as an heritage for ever
 are the rejoicing of my heart.

112 I have inclined mine heart to perform thy statutes alway, even
 unto the end.

113 I hate vain thoughts

114 Thou art my hiding place and my shield

115 Depart from me, ye evildoers
 of my God.

116 Uphold me according unto thy word, that I may live
 not be ashamed of my hope.

117 Hold thou me up, and I shall be safe
 unto thy statutes continually.

118 Thou hast trodden down all them that err from thy statutes
 for their deceit is falsehood.

119 Thou puttest away all the wicked of the earth like dross
 therefore I love thy testimonies.

120 My flesh trembleth for fear of thee; and I am afraid of thy
 judgments.

121 I have done judgment and justice
 oppressors.

122 Be surety for thy servant for good
 me.

123 Mine eyes fail for thy salvation, and for the word of thy
 righteousness.

124 Deal with thy servant according unto thy mercy, and teach me
 thy statutes.

125 I am thy servant; give me understanding, that I may know thy
 testimonies.

126 It is time for thee, LORD, to work
 thy law.

127 Therefore I love thy commandments above gold; yea, above fine
 gold.

128 Therefore I esteem all thy precepts concerning all things to
 be right; and I hate every false way.

129 Thy testimonies are wonderful
 them.

130 The entrance of thy words giveth light; it giveth
 understanding unto the simple.

131 I opened my mouth, and panted
 commandments.

132 Look thou upon me, and be merciful unto me, as thou usest to
 do unto those that love thy name.

133 Order my steps in thy word
 dominion over me.

134 Deliver me from the oppression of man
 precepts.

135 Make thy face to shine upon thy servant; and teach me thy
 statutes.

136 Rivers of waters run down mine eyes, because they keep not thy
 law.

137 Righteous art thou, O LORD, and upright are thy judgments.

138 Thy testimonies that thou hast commanded are righteous and
 very faithful.

139 My zeal hath consumed me, because mine enemies have forgotten
 thy words.

140 Thy word is very pure

141 I am small and despised

142 Thy righteousness is an everlasting righteousness, and thy law
 is the truth.

143 Trouble and anguish have taken hold on me
 commandments are my delights.

144 The righteousness of thy testimonies is everlasting
 understanding, and I shall live.

145 I cried with my whole heart; hear me, O LORD
 statutes.

146 I cried unto thee; save me, and I shall keep thy testimonies.

147 I prevented the dawning of the morning, and cried
 thy word.

148 Mine eyes prevent the night watches, that I might meditate in
 thy word.

149 Hear my voice according unto thy lovingkindness
 quicken me according to thy judgment.

150 They draw nigh that follow after mischief
 thy law.

151 Thou art near, O LORD; and all thy commandments are truth.

152 Concerning thy testimonies, I have known of old that thou hast
 founded them for ever.

153 Consider mine affliction, and deliver me
 thy law.

154 Plead my cause, and deliver me
 word.

155 Salvation is far from the wicked
 statutes.

156 Great are thy tender mercies, O LORD
 thy judgments.

157 Many are my persecutors and mine enemies; yet do I not decline
 from thy testimonies.

158 I beheld the transgressors, and was grieved; because they kept
 not thy word.

159 Consider how I love thy precepts
 according to thy lovingkindness.

160 Thy word is true from the beginning
 righteous judgments endureth for ever.

161 Princes have persecuted me without a cause
 standeth in awe of thy word.

162 I rejoice at thy word, as one that findeth great spoil.

163 I hate and abhor lying

164 Seven times a day do I praise thee because of thy righteous
 judgments.

165 Great peace have they which love thy law
 offend them.

166 LORD, I have hoped for thy salvation, and done thy
 commandments.

167 My soul hath kept thy testimonies; and I love them
 exceedingly.

168 I have kept thy precepts and thy testimonies
 are before thee.

169 Let my cry come near before thee, O LORD
 understanding according to thy word.

170 Let my supplication come before thee
 thy word.

171 My lips shall utter praise, when thou hast taught me thy
 statutes.

172 My tongue shall speak of thy word
 are righteousness.

173 Let thine hand help me; for I have chosen thy precepts.

174 I have longed for thy salvation, O LORD; and thy law is my
 delight.

175 Let my soul live, and it shall praise thee; and let thy
 judgments help me.

176 I have gone astray like a lost sheep; seek thy servant; for I
 do not forget thy commandments.

"i'm alive"

2008-05-11T03:02:00.000-07:00

FLYLEAF LYRICS

"All Around Me"

My hands are searching for you
My arms are outstretched towards you
I feel you on my fingertips
My tongue dances behind my lips for you

This fire rising through my being
Burning I'm not used to seeing you

I'm alive, I'm alive

I can feel you all around me
Thickening the air I'm breathing
Holding on to what I'm feeling
Savoring this heart that's healing

My hands float up above me
And you whisper you love me
And I begin to fade
Into our secret place

The music makes me sway
The angels singing say we are alone with you
I am alone and they are too with you

I'm alive, I'm alive

I can feel you all around me
Thickening the air I'm breathing
Holding on to what I'm feeling
Savoring this heart that's healing

And so I cry
The light is white
And I see you

I'm alive, I'm alive, I'm alive

I can feel you all around me
Thickening the air I'm breathing
Holding on to what I'm feeling
Savoring this heart that's healing

Take my hand
I give it to you
Now you own me
All I am
You said you would never leave me
I believe you
I believe

I can feel you all around me
Thickening the air I'm breathing
Holding on to what I'm feeling
Savoring this heart that's healed

[Thanks to Joey (darklies2@msn.com) for these lyrics]
[Thanks to abba12, Lisa Marie for correcting these lyrics]

[ www.azlyrics.com ]

A Few Words on Independence Day

2008-05-05T10:23:00.000-07:00

A Few Words on Independence Day
Noam Chomsky
Covert Action Quarterly, 1995
... Independence Day was designed by the first state propaganda agency, Woodrow Wilson's Committee on Public Information (CPI), created during World War I to whip a pacifist country into anti-German frenzy and, incidentally, to beat down the threat of labor which frightened respectable people after such events as the IWW (Industrial Workers of the World) victory in the Lawrence, Mass., strike of 1912. The CPI's successes greatly impressed the business world; one of its members, Edward Bernays, became the leading figure in the vastly expanding public relations industry. Also much impressed was Adolf Hitler, who attributed Germany's failure in World War I to the ideological victories of the British and U.S. propaganda agencies, which overwhelmed Germany's efforts. Next time, Germany would be in the competition, he vowed. The influence of the great generalissimo on the propaganda front, as Wilson was described by political scientist Harold Lasswell, was not slight. Independence Day was one contribution.

This particular propaganda exercise began with business-government initiatives to Americanize immigrants, to inculcate loyalty and obedience and expel from their minds alien notions about the rights of working people. Such programs would turn immigrants into the natural foe of the IWW and other destructive forces that undermine the country's ideals and institutions, the CPI founding document read. At a major conference of civic organizations (organized labor excluded), government and private organizations of all kinds and creeds had pledged themselves to cooperate in carrying out Americanization as a national endeavor, the organizers reported, while issuing plans for a successful Americanization program for the coming Fourth of July. The CPI took up the cudgels, now using the wartime fanaticism it had helped engender as another weapon against pacifists, agitators and other anti-American groups, notably the hated Wobblies. The Generalissimo joined in with a May 1918 endorsement. The title of the indoctrination ceremonies was to be Americanization Day; on reflection, Independence Day seemed preferable.

Labor leaders were aware of what was happening. A United Mine Workers (UMW) official objected that the business-government project was

attempting to set up a paternalism that will bring the workers of this country even more absolutely under the control of the employers, ... strengthening the chain of industrial tyranny in this country. ... [That is what lies behind these efforts] to sanctify and confirm oppression by waving the American flag in the face of its victims and by insidiously stigmatizing as unpatriotic any attempts they may make to throw off the yoke of the exploiting interests [that the organizers] represent.

But labor could not compete with state-corporate power, and lost this battle just as it failed to save May Day. (A jingoist holiday in the U.S., it is celebrated elsewhere as a labor festival which was begun in solidarity with the struggles of brutalized American workers.) ...
chomsky.info

LAW SCHOOL IN SOUTH TEXAS

2008-04-01T02:42:00.000-07:00

LAW SCHOOL IN SOUTH TEXAS
Posted on March 29, 2008 at 07:22:15 PM by El Javelina

I am about to provide you information that is not well known to our current legislators. This information is hard won through tedious and meticulous research that would tire even a so called mega attorney. The information was gained through will and passion. It was gained because I really care about this issue and the future of the South Texas area.

1. Land, a worthy structure, and finances were once bequeathed (willed) by a King Ranch blood heir to the creation of a law school in Corpus Christi. This information can be discovered through a deed search at the Nueces County Clerk's Office. One can find this out using the various names of past deceased King Ranch family members.

2. The conveyance stipulated that the property be used to create a law school for the Texas A&M University System.

3. Texas Tech University School of Law was stopped from putting a satellite law school in South Texas because of political oppresors giving biased testimony at a State hearing concerning this issue.

4. Texas A&M Univeristy has had everything they needed to make this happen for years and sat on it.

5. Texas Tech University is currently willling to put a law school in Corpus Christi Texas as soon as possible, but is hindered by lack of coordination, political support, and interference from the University of Texas and the Texas A&M System.

6. Let it be known now, before anyone else can jump on the bandwagon and take credit to sustain ill-guided egotistical aspirations, that a law school is within reach. All that is needed now is cooperation.

http://annkenedyfernandezschooloflaw.blogspot.com/

http://b4.boards2go.com/boards/board.cgi?action=read&id=1206836535&user=defensornews

The old Court House building is not a viable spot according to reports. That whole campain to put a law school there was not realistic. However, the King Ranch grant is a substantially more effective solutions.

Details and specifics coming later. You heard it here first.

A party cannot by his own conduct confer jurisdiction on a court

2008-02-24T02:12:00.000-08:00

This is the html version of the file http://www.supreme.courts.state.tx.us/historical/2001/jun/000847.PDF.
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Page 1
IN THE SUPREME COURT OF TEXAS
444444444444
N
O
. 00-0847
444444444444
W
ILMER
-H
UTCHINS
I
NDEPENDENT
S
CHOOL
D
ISTRICT
, P
ETITIONER
v.
J
OYCE
E. SULLIVAN
, RESPONDENT
4444444444444444444444444444444444444444444444444444
O
N

PETITION FOR
REVIEW FROM THE
C
OURT OF
A
PPEALS FOR THE
FIFTH
DISTRICT OF
TEXAS
4444444444444444444444444444444444444444444444444444
PER CURIAM
The issue here is whether the trial court has jurisdiction over this suit for retaliatory discharge
despite the plaintiff’s failure to exhaust her administrative remedies whenthe defendant did not tell her such
remedies existed. The trial court concluded that it lacked jurisdiction and dismissed the case. The court
of appeals reversed and remanded, holding that jurisdiction must be determined solely on the plaintiff’s
pleadings. ___ S.W.3d ___ (Tex. App.—Dallas 2000). We agree with the trial court.
Joyce Sullivan received workers’ compensation benefits for an injury she sustained while working
as a custodian for the Wilmer-Hutchins Independent School District. Ten months later, when her physician
released her to return to work, the District told her that she had been terminated as part of a reduction in
personnel for budget reasons. Believing that she had been terminated for filing a compensation claim, she
contacted the District’s attorney, who told Sullivan that she could not help her. The attorney did not inform
Page 2
2
Sullivan of the District’s grievance procedures or suggest that she seek legal counsel.
Sullivan sued the District for retaliatory discharge. The District filed a plea to the jurisdiction on
the ground that Sullivan had not exhausted her administrative remedies. The trial court sustained the plea
and dismissedthe case. The court of appeals reversed and remanded, holding that Sullivan’s pleading that
she had exhausted her administrative remedies was conclusive, despite unchallenged evidence to the
contrary, absent an allegation by the District that the pleading was fraudulentlymade to confer jurisdiction
on the court when none existed. ___ S.W.3d at ___.
The court of appeals based its holding on its prior decision in Bland Independent School District
v. Blue, 989 S.W.2d 441 (Tex. App.—Dallas 1999), which we have since reversed, 34 S.W.3d 547
(Tex. 2000). Sullivan concedes,as she must,that the court of appeals’ opinion conflicts with our decision
in BlandISD, but she contends that the court of appeals’ decision to reverse the dismis salofthe case was
correct.
Sullivan admits that she did not exhaust her administrative remedies and acknowledges that
exhaustion of remedies is a prerequisite to the trial court’s jurisdiction ina case like this involving disputed
fact issues. See Texas Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex.
1992); Mission Indep. Sch. Dist. v. Diserens, 188 S.W.2d 568, 570 (Tex. 1945). But she argues that
the District should be estopped from asserting a lack of jurisdiction by its attorney’s conduct.
Asa general rule,a court cannot acquire subject-matter jurisdiction by estoppel. Nevitt v. Wilson,
285 S.W. 1079, 1084 (Tex. 1926); see also Southern SuretyCo. v. Inabnit, 24 S.W.2d 375, 377 (Tex.
Comm’n App. 1930, opinion adopted) (holding that an agency may not acquirejurisdiction by estoppel).
Page 3
3
The rule hasbeen applied in three cases involving circumstances very similar to those in the present case.
InDanielv.DallasIndependent School District, 351 S.W.2d 356 (Tex. App.—ElPaso1961,writref’d
n.r.e.),a school custodian alleged that he had been wrongfully terminated because of his membership in a
union. The plaintiff argued that the school district was estopped to assert a lack of jurisdiction for failure
to exhaust administrative remedies because the school board and superintendent had told him after his
termination that“there was nothing more for him to do, and that as far as they were concerned the matter
was concluded”. Id. at 358. The court rejected the argument, stating that “jurisdiction of a court is so
important and essential that it has long been held that it cannot be conferred by estoppel. Itis a statutory
creation or enactment, and cannot be waived or conferred by consent or estoppel . . . .” Id. at 359.
InWashington v. Tyler Independent School District,932S.W.2d686(Tex.App.—Tyler1996,
no writ), the plaintiff alleged that the school district had terminated herforseeking compensation benefits.
She argued that the district was estopped to assert a lack of jurisdiction forfailureto exhaust administrative
remedies because its representatives had failed to advise her of this prerequisite to filing suit. Id. at 689.
Citing Daniel, the court concluded that even if the plaintiff could prove facts amounting to estoppel,
jurisdiction could not thereby be conferred on the trial court. Id. at 690.
In Janik v. Lamar Consolidated Independent School District, 961 S.W.2d 322 (Tex. App.—
Houston[1stDist.]1997, pet. denied),the plaintiff alleged that she had been terminated for discriminatory
reasons. She claimed that the district had never told her of the administrative procedures that were
prerequisite to suit. Id. at 324. Citing Washington, the court held that the trial could not acquire
jurisdiction by estoppel. Id.
Page 4
4
Sullivandoes not attempt to distinguish Daniel,Washington,and Janik but argues simply thatthey
were wrongly decided. We disagree. A party cannot by his own conduct confer jurisdiction on a court
when none exists otherwise. Even if the District misled Sullivan as she claims, her failure to exhaust her
administrative remedies is fatal to her action.
Accordingly, the Court grants the District’s petition for review and,without hearing oral argument,
reverses the judgment of the court of appeals and dismisses the case for want of jurisdiction. T
EX
. R. A
PP
.
P. 59.1.
Opinion delivered: June 21, 2001

Anything for a buck huh!

2007-06-02T03:48:00.001-07:00

Anything for a buck huh!
Posted on June 2, 2007 at 05:29:17 AM by Jaime Kenedeno

These guys will never pay me for anything.

They would rather kill me.

But then they would have to wonder where all of that information was partitioned and to who.

We could work with anyone should we accomplish great things that we hold true and that Homero & his wife hold true. Issues we define and redefine with the advice and consent of our networks.

A buck is a buck and I have no problem busting my ass for a few, but it dont tell me WATT to do. I do WATT I do because that is WATT I feel like doing; because I believe, have faith or I am inspired by the spirit of God or Humanity.

I'm not a pussy like most of these politicians and I can always tell you to your face WATT I write from a keyboard. Either way it comes from my CORAZON and nobody will ever buy that from this Haley. I might take your droppings, your trash and your throwaways but that is only because I am a very resourceful man.

Dont ever mistake my kindness and my patience for weakness.

And if you deserve it,
then be assured there is a day of reckoning in your future.

When I promise I deliver.

And there is plenty of time

No hurry.

Thank you to all who support our efforts and thank you for the good deeds.

Anything for a buck huh!

2007-06-02T03:42:00.000-07:00

CCISD: TAKS (Most Correct Answer): “I didn't fail the test, I just found 100 ways to do it wrong”

2007-05-24T05:23:00.000-07:00

CCISD: TAKS (Most Correct Answer): “I didn't fail the test, I just found 100 ways to do it wrong”

Need to read the Big Picture Click on Picture for Large Image

“The secret of education lies in respecting the pupil.”

Too often students are given answers to remember, rather than problems to solve”
Roger Lewin

“Instead of a national curriculum for education, what is really needed is an individual curriculum for every child.” Charles Handy

“The only thing more expensive than education is ignorance.”

“Being ignorant is not so much a shame, as being unwilling to learn.”

"IN THE KNOW": Remember The Crime Stoppers "Vandalism" of the Corpus Christi Country Club Golf Coursehigh powered members who control our nation’s eco

2007-04-20T06:18:00.000-07:00

"IN THE KNOW": Remember The Crime Stoppers "Vandalism" of the Corpus Christi Country Club Golf Course? Were there not high powered CCCC members who control our nation’s economy & industry. This work of fiction written by Hal Bray set here in Corpus Christi; I just thought you guys might like it. BTW, cant find that particular Crime Stoppers announcement. They tore up the CCCC Golf Course. Who is they?

PURCHASED FOR $300 FROM CORPUS CHRIS-IT FOUNDER, HENRY LAWRENCE KINNEY (1814-1865). ??????????????1853-1914???

2007-04-15T02:15:00.000-07:00

NUECES COUNTY COURTHOUSE OF 1914

IN 1853 LAWLESSNESS IN NUECES COUNTY, WHICH COVERED MOST OF THE AREA FROM CORPUS CHRISTI TO THE MEXICAN BORDER, PROMPTED THE CONSTRUCTION OF THE FIRST COUNTY COURTHOUSE ON THIS BLOCK THREE LOTS WERE PURCHASED FOR $300 FROM CORPUS CHRIS-IT FOUNDER, HENRY LAWRENCE KINNEY (1814-1865). A SECOND COURTHOUSE WAS BUILT IN THE MID-1870s BESIDE THE FIRST.

UNDER THE ADMINISTRATION OF COUNTY JUDGE WALTER F. TIMON (1872-1952), THIS NEOCLASSICAL STRUCTURE WAS COMPLETED IN 1914 AT A COST OF $250,000. THE ARCHITECT, HARVEY L. PAGE (1859-1934) OF WASHINGTON, D.C., DESIGNED THE INTERNATIONAL & GREAT NORTHERN RAILROAD STATION IN SAN ANTONIO AND LAGUNA GLORIA IN AUSTIN, HOME OF FORMER CORPUS CHRISTI RESIDENT CLARA DRISCOLL.

ADDITIONS WERE MADE TO THE BUILDINGS IN THE 1930s AND 1960s. COURTROOMS AND OFFICES WERE ON THE FIRST FOUR FLOORS. THE TOP TWO FLOORS, SEPARATED FROM THE REST OF THE BUILDING BY AN AIR SPACE TO ELIMINATE NOISE, SERVED AS THE JAIL. IN ADDITION TO GOVERNMENT OFFICES, APARTMENTS WERE PROVIDED UNTIL THE 1950s FOR THE JAILER AND OTHER COUNTY OFFICIALS. DURING STORMS WHICH ALMOST LEVELED THE CITY, HUNDREDS OF REFUGEES SOUGHT SHELTER HERE. IN 1977 COUNTY OFFICES MOVED TO THE NEW COURTHOUSE BUILDING.

RECORDED TEXAS HISTORIC LANDMARK - 1978
NATIONAL REGISTER OF HJSTORJC PLACES - 1976

The Texas Youth Commission is not liable for a failure or inability to provide a right listed in this chapter....watt?

2007-04-04T11:17:00.000-07:00

Please remember people, to assert a right is your God given RIGHT, use it or lose it.

If you do not speak up for yourself, who will? you and your child have the right to an attorney:

§ 61.053. ATTORNEY FOR THE PERSON. (a) In a proceeding on
a motion for enforcement where incarceration is a possible
punishment against a person who is not represented by an attorney,
the court shall inform the person of the right to be represented by
an attorney and, if the person is indigent, of the right to the
appointment of an attorney. Since when does a child who Skips class have to ask for ask for an attorney. why are the principals being paid the highest salary on campus if they can not discipline nor catch and require accountability by the student?

i truly believe there are some who want to enter orders against families and anyone else eligible but a child skipping is criminal? then the principals are sorely overpaid for they are not doing their JOB. Security and safety should be Job 1 when it comes to the responsibility of being paid and trusted by the parents.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
~FAMILY CODE

CHAPTER 61. RIGHTS AND RESPONSIBILITIES OF PARENTS AND OTHER ELIGIBLE PERSONS

SUBCHAPTER A. ENTRY OF ORDERS AGAINST PARENTS AND OTHER ELIGIBLE PERSONS

§ 61.001. DEFINITIONS. In this chapter:
(1) "Juvenile court order" means an order by a
juvenile court in a proceeding to which this chapter applies
requiring a parent or other eligible person to act or refrain from
acting.
(2) "Other eligible person" means the respondent's
guardian, the respondent's custodian, or any other person described
in a provision under this title authorizing the court order.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.002. APPLICABILITY. (a) Except as provided by
Subsection (b), this chapter applies to a proceeding to enter a
juvenile court order:
(1) for payment of probation fees under Section
54.061;
(2) for restitution under Sections 54.041(b) and
54.048;
(3) for payment of graffiti eradication fees under
Section 54.0461;
(4) for community service under Section 54.044(b);
(5) for payment of costs of court under Section
54.0411 or other provisions of law;
(6) requiring the person to refrain from doing any act
injurious to the welfare of the child under Section 54.041(a)(1);
(7) enjoining contact between the person and the child
who is the subject of a proceeding under Section 54.041(a)(2);
(8) ordering a person living in the same household
with the child to participate in counseling under Section
54.041(a)(3);
(9) requiring a parent or guardian of a child found to
be truant to participate in an available program addressing truancy
under Section 54.041(f);
(10) requiring a parent or other eligible person to
pay reasonable attorney's fees for representing the child under
Section 51.10(e);
(11) requiring the parent or other eligible person to
reimburse the county for payments the county has made to an attorney
appointed to represent the child under Section 51.10(j);
(12) requiring payment of deferred prosecution
supervision fees under Section 53.03(d);
(13) requiring a parent or other eligible person to
attend a court hearing under Section 51.115;
(14) requiring a parent or other eligible person to
act or refrain from acting to aid the child in complying with
conditions of release from detention under Section 54.01(r); or
(15) requiring a parent or other eligible person to
act or refrain from acting under any law imposing an obligation of
action or omission on a parent or other eligible person because of
the parent's or person's relation to the child who is the subject of
a proceeding under this title.
(b) This subchapter does not apply to the entry and
enforcement of a child support order under Section 54.06.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.003. ENTRY OF JUVENILE COURT ORDER AGAINST PARENT OR
OTHER ELIGIBLE PERSON. (a) To comply with the requirements of due
process of law, the juvenile court shall:
(1) provide sufficient notice in writing or orally in
a recorded court hearing of a proposed juvenile court order; and
(2) provide a sufficient opportunity for the parent or
other eligible person to be heard regarding the proposed order.
(b) A juvenile court order must be in writing and a copy
promptly furnished to the parent or other eligible person.
(c) The juvenile court may require the parent or other
eligible person to provide suitable identification to be included
in the court's file. Suitable identification includes
fingerprints, a driver's license number, a social security number,
or similar indicia of identity.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.0031. TRANSFER OF ORDER AFFECTING PARENT OR OTHER
ELIGIBLE PERSON TO COUNTY OF CHILD'S RESIDENCE. (a) This section
applies only when:
(1) a juvenile court has placed a parent or other
eligible person under a court order under this chapter;
(2) the child who was the subject of the juvenile court
proceedings in which the order was entered:
(A) resides in a county other than the county in
which the order was entered;
(B) has moved to a county other than the county in
which the order was entered and intends to remain in that county for
at least 60 days; or
(C) intends to move to a county other than the
county in which the order was entered and to remain in that county
for at least 60 days; and
(3) the parent or other eligible person resides or
will reside in the same county as the county in which the child now
resides or to which the child has moved or intends to move.
(b) A juvenile court that enters an order described by
Subsection (a)(1) may transfer the order to the juvenile court of
the county in which the parent now resides or to which the parent
has moved or intends to move.
(c) The juvenile court shall provide the parent or other
eligible person written notice of the transfer. The notification
must identify the court to which the order has been transferred.
(d) The juvenile court to which the order has been
transferred shall require the parent or other eligible person to
appear before the court to notify the person of the existence and
terms of the order. Failure to do so renders the order
unenforceable.
(e) If the notice required by Subsection (d) is provided,
the juvenile court to which the order has been transferred may
modify, extend, or enforce the order as though the court originally
entered the order.

Added by Acts 2005, 79th Leg., ch. 949, § 26, eff. Sept. 1, 2005.

§ 61.004. APPEAL. (a) The parent or other eligible
person against whom a final juvenile court order has been entered
may appeal as provided by law from judgments entered in civil cases.
(b) The movant may appeal from a judgment denying requested
relief regarding a juvenile court order as provided by law from
judgments entered in civil cases.
(c) The pendency of an appeal initiated under this section
does not abate or otherwise affect the proceedings in juvenile
court involving the child.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.
SUBCHAPTER B. ENFORCEMENT OF ORDER AGAINST PARENT OR OTHER ELIGIBLE PERSON

§ 61.051. MOTION FOR ENFORCEMENT. (a) A party initiates
enforcement of a juvenile court order by filing a written motion.
In ordinary and concise language, the motion must:
(1) identify the provision of the order allegedly
violated and sought to be enforced;
(2) state specifically and factually the manner of the
person's alleged noncompliance;
(3) state the relief requested; and
(4) contain the signature of the party filing the
motion.
(b) The movant must allege in the same motion for
enforcement each violation by the person of the juvenile court
orders described by Section 61. 002(a) that the movant had a
reasonable basis for believing the person was violating when the
motion was filed.
(c) The juvenile court retains jurisdiction to enter a
contempt order if the motion for enforcement is filed not later than
six months after the child's 18th birthday.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.052. NOTICE AND APPEARANCE. (a) On the filing of a
motion for enforcement, the court shall by written notice set the
date, time, and place of the hearing and order the person against
whom enforcement is sought to appear and respond to the motion.
(b) The notice must be given by personal service or by
certified mail, return receipt requested, on or before the 10th day
before the date of the hearing on the motion. The notice must
include a copy of the motion for enforcement. Personal service must
comply with the Code of Criminal Procedure.
(c) If a person moves to strike or specially excepts to the
motion for enforcement, the court shall rule on the exception or
motion to strike before the court hears evidence on the motion for
enforcement. If an exception is sustained, the court shall give the
movant an opportunity to replead and continue the hearing to a
designated date and time without the requirement of additional
service.
(d) If a person who has been personally served with notice
to appear at the hearing does not appear, the juvenile court may not
hold the person in contempt, but may issue a capias for the arrest
of the person. The court shall set and enforce bond as provided by
Subchapter C, Chapter 157. If a person served by certified mail,
return receipt requested, with notice to appear at the hearing does
not appear, the juvenile court may require immediate personal
service of notice.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.053. ATTORNEY FOR THE PERSON. (a) In a proceeding on
a motion for enforcement where incarceration is a possible
punishment against a person who is not represented by an attorney,
the court shall inform the person of the right to be represented by
an attorney and, if the person is indigent, of the right to the
appointment of an attorney.
(b) If the person claims indigency and requests the
appointment of an attorney, the juvenile court may require the
person to file an affidavit of indigency. The court may hear
evidence to determine the issue of indigency.
(c) The court shall appoint an attorney to represent the
person if the court determines that the person is indigent.
(d) The court shall allow an appointed or retained attorney
at least 10 days after the date of the attorney's appointment or
retention to respond to the movant's pleadings and to prepare for
the hearing. The attorney may waive the preparation time or agree
to a shorter period for preparation.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.054. COMPENSATION OF APPOINTED ATTORNEY. (a) An
attorney appointed to represent an indigent person is entitled to a
reasonable fee for services to be paid from the general fund of the
county according to the schedule for compensation adopted by the
county juvenile board. The attorney must meet the qualifications
required of attorneys for appointment to Class B misdemeanor cases
in juvenile court.
(b) For purposes of compensation, a proceeding in the
supreme court is the equivalent of a proceeding in the court of
criminal appeals.
(c) The juvenile court may order the parent or other
eligible person for whom it has appointed counsel to reimburse the
county for the fees the county pays to appointed counsel.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.055. CONDUCT OF ENFORCEMENT HEARING. (a) The
juvenile court shall require that the enforcement hearing be
recorded as provided by Section 54.09.
(b) The movant must prove beyond a reasonable doubt that the
person against whom enforcement is sought engaged in conduct
constituting contempt of a reasonable and lawful court order as
alleged in the motion for enforcement.
(c) The person against whom enforcement is sought has a
privilege not to be called as a witness or otherwise to incriminate
himself or herself.
(d) The juvenile court shall conduct the enforcement
hearing without a jury.
(e) The juvenile court shall include in its judgment
findings as to each violation alleged in the motion for enforcement
and the punishment, if any, to be imposed.
(f) If the person against whom enforcement is sought was not
represented by counsel during any previous court proceeding
involving a motion for enforcement, the person may through counsel
raise any defense or affirmative defense to the proceeding that
could have been lodged in the previous court proceeding but was not
because the person was not represented by counsel.
(g) It is an affirmative defense to enforcement of a
juvenile court order that the juvenile court did not provide the
parent or other eligible person with due process of law in the
proceeding in which the court entered the order.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.056. AFFIRMATIVE DEFENSE OF INABILITY TO PAY. (a)
In an enforcement hearing in which the motion for enforcement
alleges that the person against whom enforcement is sought failed
to pay restitution, court costs, supervision fees, or any other
payment ordered by the court, it is an affirmative defense that the
person was financially unable to pay.
(b) The burden of proof to establish the affirmative defense
of inability to pay is on the person asserting it.
(c) In order to prevail on the affirmative defense of
inability to pay, the person asserting it must show that the person
could not have reasonably paid the court-ordered obligation after
the person discharged the person's other important financial
obligations, including payments for housing, food, utilities,
necessary clothing, education, and preexisting debts.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.057. PUNISHMENT FOR CONTEMPT. (a) On a finding of
contempt, the juvenile court may commit the person to the county
jail for a term not to exceed six months or may impose a fine in an
amount not to exceed $500, or both.
(b) The court may impose only a single jail sentence not to
exceed six months or a single fine not to exceed $500, or both,
during an enforcement proceeding, without regard to whether the
court has entered multiple findings of contempt.
(c) On a finding of contempt in an enforcement proceeding,
the juvenile court may, instead of issuing a commitment to jail,
enter an order requiring the person's future conduct to comply with
the court's previous orders.
(d) Violation of an order entered under Subsection (c) may
be the basis of a new enforcement proceeding.
(e) The juvenile court may assign a juvenile probation
officer to assist a person in complying with a court order issued
under Subsection (c).
(f) A juvenile court may reduce a term of incarceration or
reduce payment of all or part of a fine at any time before the
sentence is fully served or the fine fully paid.
(g) A juvenile court may reduce the burden of complying with
a court order issued under Subsection (c) at any time before the
order is fully satisfied, but may not increase the burden except
following a new finding of contempt in a new enforcement
proceeding.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.
SUBCHAPTER C. RIGHTS OF PARENTS

§ 61.101. DEFINITION. In this subchapter, "parent"
includes the guardian or custodian of a child.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.102. RIGHT TO BE INFORMED OF PROCEEDING. (a) The
parent of a child referred to a juvenile court is entitled as soon
as practicable after the referral to be informed by staff
designated by the juvenile board, based on the information
accompanying the referral to the juvenile court, of:
(1) the date and time of the offense;
(2) the date and time the child was taken into custody;
(3) the name of the offense and its penal category;
(4) the type of weapon, if any, that was used;
(5) the type of property taken or damaged and the
extent of damage, if any;
(6) the physical injuries, if any, to the victim of the
offense;
(7) whether there is reason to believe that the
offense was gang-related;
(8) whether there is reason to believe that the
offense was related to consumption of alcohol or use of an illegal
controlled substance;
(9) if the child was taken into custody with adults or
other juveniles, the names of those persons;
(10) the aspects of the juvenile court process that
apply to the child;
(11) if the child is in detention, the visitation
policy of the detention facility that applies to the child;
(12) the child's right to be represented by an attorney
and the local standards and procedures for determining whether the
parent qualifies for appointment of counsel to represent the child;
and
(13) the methods by which the parent can assist the
child with the legal process.
(b) If the child was released on field release citation, or
from the law enforcement station by the police, by intake, or by the
judge or associate judge at the initial detention hearing, the
information required by Subsection (a) may be communicated to the
parent in person, by telephone, or in writing.
(c) If the child is not released before or at the initial
detention hearing, the information required by Subsection (a) shall
be communicated in person to the parent unless that is not feasible,
in which event it may be communicated by telephone or in writing.
(d) Information disclosed to a parent under Subsection (a)
is not admissible in a judicial proceeding under this title as
substantive evidence or as evidence to impeach the testimony of a
witness for the state.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.103. RIGHT OF ACCESS TO CHILD. (a) The parent of a
child taken into custody for delinquent conduct, conduct indicating
a need for supervision, or conduct that violates a condition of
probation imposed by the juvenile court has the right to
communicate in person privately with the child for reasonable
periods of time while the child is in:
(1) a juvenile processing office;
(2) a secure detention facility;
(3) a secure correctional facility;
(4) a court-ordered placement facility; or
(5) the custody of the Texas Youth Commission.
(b) The time, place, and conditions of the private,
in-person communication may be regulated to prevent disruption of
scheduled activities and to maintain the safety and security of the
facility.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.104. PARENTAL WRITTEN STATEMENT. (a) When a
petition for adjudication, a motion or petition to modify
disposition, or a motion or petition for discretionary transfer to
criminal court is served on a parent of the child, the parent must
be provided with a form prescribed by the Texas Juvenile Probation
Commission on which the parent can make a written statement about
the needs of the child or family or any other matter relevant to
disposition of the case.
(b) The parent shall return the statement to the juvenile
probation department, which shall transmit the statement to the
court along with the discretionary transfer report authorized by
Section 54.02(e), the disposition report authorized by Section
54.04(b), or the modification of disposition report authorized by
Section 54.05(e), as applicable. The statement shall be disclosed
to the parties as appropriate and may be considered by the court at
the disposition, modification, or discretionary transfer hearing.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.105. PARENTAL ORAL STATEMENT. (a) After all the
evidence has been received but before the arguments of counsel at a
hearing for discretionary transfer to criminal court, a disposition
hearing without a jury, or a modification of disposition hearing,
the court shall give a parent who is present in court a reasonable
opportunity to address the court about the needs or strengths of the
child or family or any other matter relevant to disposition of the
case.
(b) The parent may not be required to make the statement
under oath and may not be subject to cross-examination, but the
court may seek clarification or expansion of the statement from the
person giving the statement.
(c) The court may consider and act on the statement as the
court considers appropriate.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.106. APPEAL OR COLLATERAL CHALLENGE. The failure or
inability of a person to perform an act or to provide a right or
service listed under this subchapter may not be used by the child or
any party as a ground for:
(1) appeal;
(2) an application for a post-adjudication writ of
habeas corpus; or
(3) exclusion of evidence against the child in any
proceeding or forum.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

§ 61.107. LIABILITY. The Texas Youth Commission, a
juvenile board, a court, a person appointed by the court, an
employee of a juvenile probation department, an attorney for the
state, a peace officer, or a law enforcement agency is not liable
for a failure or inability to provide a right listed in this
chapter.

Added by Acts 2003, 78th Leg., ch. 283, § 28, eff. Sept. 1, 2003.

2007-04-02T00:30:00.000-07:00

"Empowering Our Families": "The bottom line is gangs are still operating in our community". Respect
Posted on February 1, 2007 at 02:22:11 AM by Kenedeno

corpus christi billboards

"Not just to drum up business but to provoke discussion" "It's about making a point," DVA

Wednesday, January 31, 2007

"Empowering Our Families": "The bottom line is gangs are still operating in our community". Respect Our Family. Respect innocent Children, Brothers,..

Sisters, and the family of one another. If you want to shoot, JOIN THE MILITARY! As a force of uniting FAMILIES and Communities, the Corpus Christi Public Endeavors to Achieve Peace in our Corpus Christi Barrios and throughout our Communities.

PAX

Our City, The Body Of Christ (Corpus Christi) is Sacred.

The Virgin Guadalupe, do you wear her for protection?

Our Turf is Your Turf.

Shout out to all in La Quadenta, Midway, Lulac, Southside, Molina, ABC's, Los Encinos, Chula Vista, Vestal, Karen, LA, RU, Spaiders, and the Suits who control; this war, the death and the tagging etc. This behavior is bringing the focus to your world. These little gangsters must be brought into check. The little taggers and the little drive by cowardice that is being conducted without the permission (the OK) of the Suits; is going to "bring the heat" to the upper levels (the suits) should the behavior be allowed to continue. You guys know who you are AND you know who is causing the trouble. Is it not disrespectful to disrupt negotios ? Must the city bring it to your doorstep and your pocketbook. It (PAX) is to be respected as you respect your FAMILY. Why wait till LA LEY starts kicking down doors and taking your possessions?

Please remember, this is a message of HOPE, LOVE and forewarning.

I hope and pray it is heard and respected.

After this manner therefore pray ye: Our Father which art in heaven, Hallowed be thy name. Thy kingdom come. Thy will be done in earth, as it is in heaven. Give us this day our daily bread. And forgive us our debts, as we forgive our debtors. And lead us not into temptation, but deliver us from evil: For thine is the kingdom, and the power, and the glory, for ever. Amen.

KRIS-TV

CORPUS CHRISTI - According to Corpus Christi police, there are on average, 19 gang shootings each month, and often times, innocent neighbors or family members are caught in the crossfire.

Corpus Christi police, for this reason, announced a one-of-a-kind program that allows the public to make anonymous tips on gangsters in exchange for cash. Police said to a gang member, a gun is a status symbol as much as anything else, and typically, they are happy to share that information with others.

It's that sort of public acknowledgement to friends or enemies that officers hope will also lead to their downfall. The idea of offering rewards for information is a proven tactic for Corpus Christi police.

"Crime Stoppers program is one of the most successful investigative tools we have," Chief Bryan Smith said.

The new program is entitled "Save our Streets." It's a variation of the Crime Stoppers model, and police are hoping to borrow some of the same success by also offering residents cash for tips.

For every handgun - $200. And $500 for every assault weapon. Ironically, some of those reporting gang members with guns may just be gang members themselves.

"You know, there's no honor among thieves or gang members, so I'm hopeful that they'll burn each other," SMith said, "and there's nothing better than that from our mindset."

In recent years, the overall number of gang shootings has gone down, but police said the severity as far as injuries and number of shots fired has been on the rise.

Corpus Christi is currently home to about 3200 known gang members. It's a number that police are hoping this program will drastically reduce.

"The bottom line is gangs are still operating in our community, and our goal needs to be to eradicate them to whatever degree we can, and to prosecute them at every opportunity," Smith said.

And when they're prosecuted, most will likely face charges of unlawful possession of a firearm, which for some gang members with a history, can be a felony.

Just to clarify, anyone can report a gang member who has a gun on their person. But someone who lives down the street from someone who they know has a gun in their house, might still be able to get a reward. It all depends on what kind of case police are able to make, based on the information provided.

The number to call, just like with Crime Stoppers, is 888-TIPS.

Online Reporter: "Bart Bedsole

Posted by CC Watchdog Authority at 10:17 PM

Labels: CCPD, Corpus Christi, Guns, LULAC, Murder, Tagging

Mission Statement
To encourage full participation, promote mutual understanding and cultivate shared responsibility throughout our community. To support everyone to do their best thinking and express it, To enable community members to search for inclusive solutions and build sustainable agreements

Replies:

* Re(1): Trustees ............aint - By dannoynted1 February 1, 2007 at 05:52:41 AM
o Re(2): Trustees ............aint - By dannoynted1 February 3, 2007 at 08:36:18 AM
+ Re(3): Trustees ............aint - By d1 February 6, 2007 at 06:01:11 AM
# Re(4): Trustees ............aint - By dannoynted1 February 7, 2007 at 03:43:19 AM
+ Re(3): Trustees ............aint - By dannoynted1 February 3, 2007 at 09:05:38 AM
# Re(4): Trustees ............aint - By dannoynted1 April 1, 2007 at 11:29:03 PM

Re(1): Trustees ............aint
Posted on February 1, 2007 at 05:52:41 AM by dannoynted1

it is weird, i was talking to a pal of mine and she was pissed @ breaking down yesterday

the weather was bad...and it was at the time to pick up the kids from school.
"
she is always prompt picking up the kids, she called and informed the elementary school in the "hood" not on the posh side of town and informed them of the problem.

well the asst principal(female) informed the 7 year old she was going to call CPS and the police were going to make her go with them since her mother was not going to pick her up.

Even though the asst. principal knew, the mother called, had informed her of the circumstances by cell phone, which thank God she had.
.....But instead of help from our local CCISD "fiefdom" of overpaid administration responsible by agreement are (they not paid) and EMPLOYED for it? But yet exude the mentality(i have power and your people don't)to the extent to expunge families, supply a go of destruction which of course is done to render these folks obsolete, a goal that is explicit and impart by assuming "kin" as if they are worthless~without an "official leader" @ CCISD to answer to they have no boss. That seems to permeate from these rogue "big man syndrome sufferers"

Including leader MR vic Rothschild/billy Clark along with their new nilly "Carol Scott" ms. kilo?

i guess these people could care less about the bottom line where we are concerned ~ but only and especially their own self dealing from the bottom of the deck!(thanks molly)

"Pro Business" tells us the family's they are using n us and our kids they are not here for our children, or their education, they are here for the check and themselves in a position to help their ilk and their self proclaimed agenda labeled "Pro Business" a position available now they are in a "trusty" that has NOTHING to do with education............ Now who is empowered by control of "Pro Business" stance?

The CCISD educators or "pro business carpetbaggers"

oh by the

I for one am sick of "process" without "policy" but yet collects the money as they are "educating" but truly masquerading as educators!

oh and it is illegal to lock up a child for a "wanton selective" alleging a child, while @ school who is in violation and then decide among who of those worthy of prosecution.

so if you prosecute one child for the same "crime" why is it done selectively?

A COUPLE OF YEARS AGO......

When i informed a certain "middle school principal" that her alone was ENTRUSTED/OBLIGATED,ACCOUNTABLE AS she is responsible for what happens on her campus.....
the idiot principal had the gall to state "no ma'am"..."no ma'am"

i asked "your not
responsible"?

again i was told "no ma'am"..."no ma'am"

well i could not beleive i was sending my child to a school where the highest paid employee there and had the title of principal yet impotent...

needless to say she no longer is not in charge of being (not)responsible for any of our children's lives here nor works @CCISD!

But if the Principal ain't in charge and their boss is some crap "process" idiots who waste money on "welder leshin" colleen mchughs" to waste money acting like the money is being well spent when actually the goal is to waste our time, our money, and our kids time and their educational opportunities

i say we prosecute them for "tardies" just like they do to our children they for some reason is a fly on the wall instead of being educated but yet the district collects that check as if they were in class" talk about fraud and tampering with government documents/records!

not to mention:
1. dereliction of duty
2. facilitating tardies as a criminal act. 3. an audit ~ if they are being paid to educate and yet they charge students and parents i bet this type of contractual
the state gives their goodhair and pal's an extra incentive to double their money when they succeed in the "education of no child left behind bars via incarceration.

how many kids drop out rather than have to go through the criminalization they can look forward to thanks to the "policy and process" why are these principals getting paid?

if they can't stop a kid from being tardy or/and catch him skipping or enforce the policy of "go to class"then Heaven help..... they are useless to us if they will not enforce their well paid job as such are ultimately responsible for "policy and education" at their repective venues i guess they will for sure unable to stop a columbine either ?

"pro business" by wasting our money and time and our students for the last 2 years shows what their concentation is and it is ~not on education ~

but there is a future when you get money through standardized long term methods of incarceration
and i for one see a pattern of the same old "process" of waste that we have seen this past 2 years!

hail~they did not drop out.......technically you can not be labeled a drop out if you are locked-up!?!

I for one, am sick of the waste on the Consultants/Attorneys sitting in One Shoreline Plaza like Colleen Tandy Mchugh's and the Carol Scott's and the Bill Clark's (and his predecessor)who care about their "business" end instead of their "elected position"!

And i am being nice!

Remember the last thing the "trustees" want is a boss!

that is why they expelled all those transfer students only for the "south side schools"

and all this has happened courtesy of "trustees" they make policy.

well i am "not impressed" to borrow a phrase form that principal who ain't responsible for what happens on her campus.

these trustees need a boss and if ain't the one they want then we will gladly "substitute".

ala a "minuteman"!

except we know what our family and children mean to us....do they?

"We Know. We're from Here!"

that ad is super bowl worthy. some people have shown they don't know "We Know. We're from Here!"
but do not deserve to do business with those folks whose "word is more binding than any contract(k)"

now that's watt I'M talking 'bout!

Replies:

* Re(2): Trustees ............aint - By dannoynted1 February 3, 2007 at 08:36:18 AM
o Re(3): Trustees ............aint - By d1 February 6, 2007 at 06:01:11 AM
+ Re(4): Trustees ............aint - By dannoynted1 February 7, 2007 at 03:43:19 AM
o Re(3): Trustees ............aint - By dannoynted1 February 3, 2007 at 09:05:38 AM
+ Re(4): Trustees ............aint - By dannoynted1 April 1, 2007 at 11:2

Re(2): Trustees ............aint
Posted on February 3, 2007 at 08:36:18 AM by dannoynted1

i wonder what pro will be as "deserving of an education in "waste management" conducted by these worthless billy bob clarks who are 2 years behind a policy that is known to all us raised in Texas on that unwritten code of conduct.....

be a straight shooter and a SQUARE dealer.......

yup their ability to sell out our kids for the past 2 years while they troll for the best "pro-business contract" that will be more binding for their future in the "pro-business" newly coined "pro-business industry" needs to go bushs uck off the private sector part of their not from here "culture club" where we come from ...... no body gets a golf course for free let alone suggesting it will happen in 2 years.....

I will take "Quid Pro Quo " for a thousand Alex.......

Alex: "and it is the daily........"

can you hear me now?

or do we got to get a little louder?

Re(3): Trustees ............aint
Posted on February 6, 2007 at 06:01:11 AM by d1

Re(2): CCISD Trustees ............ain't doing their JOB!
Posted on February 3, 2007 at 08:36:18 AM by dannoynted1

i wonder who/what pro will be as "deserving of an education in "waste management" conducted by these worthless billy bob clarks @CCISD who are 2 years behind a policy that is known to all us raised in Texas on that unwritten code of conduct.....

be a straight shooter and a SQUARE dealer.......

yup their ability to sell out our kids@ CCISD for the past 2 years while they troll for the best "pro-business contract" that will be more binding for their future in the "pro-business" newly coined "pro-business industry" wasting the needs of students to be educated and more "comity" in their use of the La Ley. Them folks need to go sushs buck off the private sector part of their maroon wearing jacket rich alumni, not those taxpaying public sector taxpayers from here. Yall private sector "culture club" brain drain all of us and think we are stupid because of where we come from ...... no body gets a golf course for free let alone suggesting it will happen in 2 years.....

I will take "Quid Pro Quo " for a thousand Alex.......

Alex: "and it is the daily........"

can you hear me now?

or do we got to get a little louder?

I guess you guys don't get it. How are we going to afford to go there if CCISD students and their education is nothing to those that are trying to steal/for free/provide a consolation gift to the private "real estate" for who Lame Duck Mark Scott was supposed to develop?

I know he is a main player in this "gift" for who? If you happen to owe on a student loan and you're fortunate enough to get the cash to try and finish up your degree, and go 'ole boy TAMU-CC still does/will not want/nor admit you enrollment.

Guess they ain't hurting for the money........nor the preferred clientèle....unless they.....

Are they planning to build a law school?

free money maker for an upscale neighborhood ? And tax exempt to boot?

The way students @ TAMU-CC/CCISD care on totally different "wavelengths"!

We ain't giving away free land when our students@ CCISD have a 1 in 7 chance of even hoping to get there.....thanks to the weeds they see(prosecuted poor "selected")as needing to be pulled,

so they have more time for their own brand of seeds.

OH AND LET US NOT 4GET A LITTLE ID BIT OF TRIVIA CONCERNING THE "INTERLIBRARY LOAN" REQUESTED @TAMUK.....FOR A CERTAIN "SERPENT IN THE GARDEN" ARTICLE. I GOT A COPY FROM THERE, COPIED IT AND TURNED OVER TO THE ATTORNEY FOR A FINDERS FEE OF 25K. I FOUND IT @ TAMUK. PAID & GAVE HIM MY ONLY COPY.
THEN WHEN I DID NOT GET PAID, I WENT BACK TO JERNIGAN LIBRARY TO GET ANOTHER COPY AND I WAS TOLD TAMUK NO LONGER CARRIED THE "HOUSTON CHRONICLE"
SO I REQUESTED AN INTERLIBRARY LOAN WHICH I WAS TOLD ANY OF TEXAS' A&M'S WOULD PROVIDE.

WELL NOT ONE A&M HAD THIS ARTICLE AND NO LONGER CARRIED THE HOUSTON CHRONICLE. THIS WAS 1996-1997.

THE ARTICLE PUBLISHED SUNDAY, JANUARY 14, 1996, BY JAMES PINKERTON WAS THE FRONT PAGE HEADLINE.

IT WAS AN EDUCATION IN THE POLITICAL/SOCIAL/ECONOMIC PARADIGM REGARDING PRIVATE/PUBLIC SECTOR.

Replies:

* Re(4): Trustees ............aint - By dannoynted1 February 7, 2007 at 03:43:19 AM

# Re(3): Trustees ............aint - By dannoynted1 February 3, 2007 at 09:05:38 AM

* Re(4): Trustees ............aint - By dannoynted1 April 1, 2007 at 11:29:03 PM

Re(4): Trustees ............aint
Posted on February 7, 2007 at 03:43:19 AM by dannoynted1

does A&m's still "no longer carry a major newspaper?

talk about censorship.....

why only that paper?

oh and you know who you are .....your "piper has been calling for you to join him."

Replies:

* Re(3): Trustees ............aint - By dannoynted1 February 3, 2007 at 09:05:38 AM
o Re(4): Trustees ............aint - By dannoynted1 April 1, 2007 at 11:29:03 PM

Re(3): Trustees ............aint
Posted on February 3, 2007 at 09:05:38 AM by dannoynted1

AYE boy'o.......watt killa brew is your flavor?

they hard stuf or the kine that is sweet but always hurts u? or the kine that keeps u goin?

yup them irish eyes' r a smilin'
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~`

Re(4): Trustees ............aint
Posted on April 1, 2007 at 11:29:03 PM by dannoynted1

"well i know watt's right"
"there ain't no easy way out"
"I won't back down"~

~I'll stand my ground~ BY

~tom petty& the Heartbreakers~

The death penalty is a false solution, and politicians know it.

2007-03-31T00:43:00.000-07:00

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Texas Coalition to Abolish the Death Penalty

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Supplemental Information on the Texas Death Penalty

There is a great deal of material here.

Please click on a title to take you to the appropriate section of the page.

* Appendix A Texas Prisoner Rights
* Appendix B Jury Questionnaire
* Appendix C Innocent on Texas DR
* Appendix D Texas Death Row Photos
* Appendix E Texas Prison Health Care
* Appendix F Juvenile Offenders
* Appendix G Crime Trends in Texas

* Appendix H Cruel and Unusual
* Appendix I Texas Death Penalty Fact Sheet
* Appendix J TCADP Newsletter
* Appendix K Govs' Perry & Bush
* Appendix L Mental Illness
* Appendix M Abolition Petitions
* Appendix N In the news...

A:Texas Prisoner Rights

Texas Department of Criminal Justice Rules -
TITLE 37. Public Safety and Corrections
VI. TEXAS DEPARTMENT OF CRIMINAL JUSTICE

§157.39. Offender Rights.
The facility protects the safety and constitutional rights of offenders and seeks a balance between expression of individual rights and preservation of facility order.

(1) Access to courts. Each facility will maintain written policy, procedure, and practice to ensure offender access to courts in conformity with the laws and the Constitution of the United States and the State of Texas.

(2) Access to counsel. Each facility will maintain written policy, procedure, and practice to ensure and facilitate offender access to counsel and assist offenders in making confidential contact with attorneys and their authorized representatives; such contact includes, but is not limited to, telephone communications, uncensored correspondence, and visits.

(3) Attorney/client visiting. Attorneys may arrange visits with offenders by making a request through the warden/facility administrator's office twenty-four (24) hours in advance of the requested time. Visits will be visually supervised by security staff, but such visits will take place out of the normal hearing range of the officer. Visiting attorneys will not be searched; their property, however, may be searched for physical contraband. Attorneys and offenders may exchange written materials directly. Where practical and possible, attorneys may request telephone contact with their clients in lieu of an attorney visit. Special requests by offenders to phone attorneys will be considered only when unusual circumstances occur. Wardens/facility administrators will be responsible for approving any such special requests.

(4) Access to law library. Each facility will maintain written policy, procedure, and practice to provide that offenders have access to legal materials, as specified by division policy, to help them with criminal, civil, and administrative legal matters. Indigent offenders shall have access to paper, writing materials, postage, and other supplies and services related to legal matters.

(5) Personal legal material. The facility administrator will maintain policy, procedure, and practice to allow the offender to keep legal materials. The amount of legal material will not exceed the storage space assigned to the offender. Personal legal material may be searched for contraband. Legal materials may not be read for content without proper authorization.

(6) Access to programs and services. Facility administrators shall insure written policy, procedure and practice provide that program access, work assignments, and administrative decisions are made without regard to the offender's race, religion, national origin, sex, or political views and that such placement is within the guidelines set forth by the offender's medical and classification restrictions.

(7) Special management. Offenders in special management because of behavioral problems should be provided with programs conducive to their well-being.

(8) Protective custody status. Offenders in protective custody status should be allowed to participate in as many of the programs afforded the general population, providing such participation does not threaten facility security.

(9) Equal opportunity. Where males and females are housed in the same facility, equal opportunities shall be provided for participation in programs and services. They are provided separate sleeping quarters but equal access to all available services and programs. Neither sex is denied opportunities solely on the basis of their smaller number of the total population.

(10) Offender communications. Each facility shall maintain written policy, procedure, and practice to grant offenders the right to communicate or correspond with persons or organizations, subject only to the limitations necessary to maintain order and security.

(11) Grievance procedures. Facility administrators shall ensure that there is a written offender grievance procedure that is made available to all offenders which includes at least one level of appeal. An independent review of grievance decisions made at facility level may be conducted by the State Jail Division.

(12) Offender requests. Each facility shall maintain a written policy describing the manner in which offenders may make written requests of the staff.

(13) Prohibition of harassment. There will be no harassment of or retaliation against any offender for exercising their access to the courts or filing a grievance.
The provisions of this §157.39 adopted to be effective April 15, 1994, 19 TexReg 2402; amended to be effective
December 12, 1994, 19 TexReg 9375; amended to be effective May 31, 1995, 20 TexReg 3663.

Texas Administrative Code Rules - Abuse and Neglect

TITLE 37 PUBLIC SAFETY AND CORRECTIONS
PART 6 TEXAS DEPARTMENT OF CRIMINAL JUSTICE
CHAPTER 153 INTERNAL INQUIRIES
SUBCHAPTER A
INVESTIGATIONS OF ABUSE, NEGLECT, OR EXPLOITATION IN A
FACILITY OPERATED BY THE TEXAS DEPARTMENT OF CRIMINAL
JUSTICE
RULE §153.4
Abuse, Neglect, and Exploitation Defined

(a) Abuse of an elderly or disabled person means the intentional, knowing, reckless, or negligent infliction of injury or intimidation with resulting physical or emotional harm or pain or mental anguish, or sexual abuse, including an unnecessary or excessive use of force or the inappropriate use of restraints or seclusion.

(b) Abuse does not include:

(1) the proper use of restraints or seclusion in accordance with federal or state laws or regulations, agency policies, or court
order;

(2) other actions taken in accordance with federal or state laws or regulations, agency policies, or court order;

(3) actions an employee may reasonably believe to be immediately necessary to avoid imminent harm to self, patients or clients, or other individuals if such actions are limited only to those actions reasonably believed to be necessary under the existing circumstances; or

(4) complaints related to the daily administrative operations of a facility (e.g., staffing ratios).

(c) Neglect of an elderly or disabled person means the failure by the caretaker to provide the goods or services, including medical services, which are necessary to avoid physical or emotional harm or pain.

(d) Exploitation of an elderly or disabled person means the illegal or improper act or process of a caretaker who has an ongoing relationship with the elderly or disabled person using the resources of an elderly or disabled person for monetary or personal benefit, profit, or gain.

Texas Administrative Code

TITLE 37 PUBLIC SAFETY AND CORRECTIONS
PART 9 TEXAS COMMISSION ON JAIL STANDARDS
CHAPTER 283 DISCIPLINE AND GRIEVANCES
Rules
§283.1 Inmate Discipline Plan
§283.2 Inmate Rules and Regulations
§283.3 Inmate Grievance Plan

Texas Administrative Code
TITLE 37 PUBLIC SAFETY AND CORRECTIONS
PART 9 TEXAS COMMISSION ON JAIL STANDARDS
CHAPTER 273 HEALTH SERVICES

Rules
§273.1 Health Services
§273.2 Health Services Plan
§273.3 Health Instructions
§273.4 Health Records
§273.5 Mental Disabilities/Suicide Prevention Plan
§273.6 Restraints
§273.7 Tuberculosis Screening Plan
§273.8 Health Services

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B: Juror Questionairre

I. INTRODUCTION

Death is different. You might ask, "What do you mean death is different?". The criminal trial practitioner called upon to defend a person in a death penalty trial can attest to the fact that there is nothing to compare to the emotionally charged roller coaster ride which can potentially result in the ultimate verdict of death. Even our brethren in robes fully acknowledge the difference that accompanies a death penalty trial. Our Supreme Court has expressly recognized that death is different from any other punishment, Gardner V. Florida, 438 S.W. 349,357(1977), and through an Eighth Amendment analysis has stated that "the death penalty is unique in its total irrevocability... in its rejection of rehabilitation…and its absolute renunciation in all that is embodied in our concept of humanity".

Death penalty jury selection has been compared to the Alaska Iditarod. It should be. Because only through preparation and relentless execution will success even be remotely possible. For the criminal trial practitioner defending a person against the death penalty, this trial is the greatest challenge and highest calling of one's career. The criminal trial lawyer must approach this litigation with an absolute zeal and a firm resolve to insure that if his client is executed at some future date, he has the solemnity and peace of mind in knowing that his absolute finest efforts were exhausted in representing that individual. That lawyer must be able to sleep well on the evening of his client's execution knowing that every motion that should have been filed was filed, every witness that should have been interviewed has been interviewed, every question that should have been asked was asked, an exhaustive jury selection process was undertaken, every objection that should have been made was made, every argument that should have been made was made and that his relentless efforts on behalf of his condemned client did not fail for lack of methodical preparation and diligence.

No place in the law is it as important as in a death penalty trial that counsel be conscious of protecting not only the state appellate court record but also the federal post conviction record for any relief sought under the United States Constitution. The practitioner does not try the case to the jury alone. These cases are tried for multiple audiences: the jury, the judge, the state appellate court, the federal courts and ultimately, the Supreme Court of theUnited States. It becomes the attorney's passion to juggle all of these competing interests week after exhausting week during pretrial hearings, jury selection and actual trial of the case. The lawyer must insure that this client is not executed because of some issue that is left unresolved due to his procedural default. What makes death "different" is that the verdict is so incredibly final and each of us has a responsibility to meticulously protect the trial record on all fronts in order to insure that no basis of relief, constitutional or statutory, is waived.

Counsel should not limit areas of jury selection to only those issues which he or she feels may hold some promise. In the early 1980's, lawyers engaged in death penalty practice in Texas thought the attack on Article 37.071 C.C.P. for its inability to permit the jury to consider mitigating evidence was a dead issue because of Jurek V. State, 522 S.W.2d 934 (Tex.Crim.App. 1975), affd on othergrounds428 U.S. 262(1976). In 1988, we learned in Franklin v. Lynau~h, 108 S.Ct. 2320, 101 L.Ed.2d (1988) that there was an Eighth Amendment infirmity with Article 37.071 C.C.P. and the Court simply needed to be presented with the right case. Finally, in Penry V. Lynaugh, 109 S.Ct. 2934 (1989), we learned that given sufficient mitigating evidence, the jury must receive a punishment instruction supplementing the Article 37.071 C.C.P. charging paragraph that states they may consider and give effect to mitigating evidence by voting in favor of a life sentence.

Lawyers who failed to request mitigating instructions held their breath until Selvage V. Collins, 816 S.W.2d 390 (Tex.Crim.App. 1991). Selvage permitted an appellate court to review a capital defendant's mitigating circumstances even if such evidence was not properly presented at trial and mitigating instructions requested.

The severe consequences of counsel's failure to raise every conceivable issue is perhaps most vividly demonstrated in Smith v. Murray, 477 U.S. 527, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986), wherein psychiatric evidence in violation of the Fifth and Sixth Amendments was admitted at Smith's trial. This issue was not raised on direct appeal because at the time of the appeal, the Supreme Court 9f Virginia had rejected this same claim in another case. Thereafter, the United States Supreme Court held that the admission of such testimony without Miranda warnings and notice to counsel was violative of the Fifth and Sixth Amendments. Because Smith had not raised the issue on direct appeal at a time when it would have been clearly futile, the Supreme Court held he was not entitled to relief in the federal courts. Mr. Smith was executed in 1986.

Every criminal practitioner involved in capital litigation should be limited only by ethical considerations and his own creativity in ensuring that there is a relentless voir dire process. The more decisions a presiding judge is required to make, the greater potential for error in the case.

Every avenue should be explored. The law is evolving daily. The composition of our Court of Criminal Appeals and the Supreme Court of the United States has changed dramatically. Today's losing issue could be tomorrow's hot topic and new hope.

An understanding of the voir dire process, the law governing challenges, excuses, exemptions, and the intelligent exercise of peremptory challenges are all means to this end. But nothing can substitute for the innate ability or sense to read a prospective juror's true colors and eliminate him or her without exhausting one of those precious peremptory challenges.

A suitable jury for the defense in a death penalty prosecution is one which is emotionally, psychologically and philosophically receptive to your client's background and case. As a result, the decision to kill is a moment when jurors step out of their normal fact-finding roles and become moral agents. As Justice Stevens stated in the Supreme Court case of Spaziano v. Florida, 468 U.S. 447 (1984), the jury's decision to impose death "rests on not a legal but an ethical judgment."

II. VENUE (Article 31.03 C.C.P.)

The defense has two grounds upon which to request a change of venue: (1) there is a prejudice against him in the county where the prosecution commenced that is so great that there is substantial doubt whether he can receive a fair and impartial trial in said county and, (2) that there is a dangerous combination against him instigated by influential persons that would prevent him from obtaining a fair and impartial trial.

The motion for change of venue must be supported by the defendant's affidavit and the affidavits of two credible residents of the county. Unless the state controverts the motion, there is a change of venue as a matter of law.

Pursuant to Article 28.01 C.C.P. the motion must be filed prior to the pre-trial motion hearing date and presented at that time. If no pretrial hearing date, file it prior to announcement of ready. Stapleton V. State, 565 S.W.2d 532.

III. THE JURY PANEL (Special Venire, Arts. 34.01 & 34.04 C.C.P.)

The TEXAS GOVERNMENT CODE §62.001 provides that the jury wheel from which our
panels are derived come from the county voter registration lists, combined with the Texas
Department of Public Safety driver's license and personal identification card or certificate lists.
Defense counsel is entitled to receive the venire list two (2) days prior to trial (Art. 34.04, C.C.P.)
See also Government Code §62.102 and §62.1031 for qualifications.

A. CHALLENGES TO THE PANEL:

One may attempt to challenge the array pursuant to Article 35.07 C.C.P. only on the grounds that the officer who summons the jury did so with willful intent to obtain jurors with a view to securing a conviction or acquittal. The challenge must be in writing setting forth the ground for such challenges and be supported by affidavit. Esquivel v. State, 595 S.W.2d 516, (Tex. Cr. App. 1980), cert. denied 449 U.S. 986(1980). The trial court must hear and determine the challenge to the array before interrogating the panel or to their qualifications. See Art. 35.06, C.C.P. Denial of a challenge to the array by the trial court is not reversible error unless the defense shows that he was forced to accept an objectionable juror. Cooks V. State, 844 S.W.2d 697 (Tex.Crim.App. 1992), cert. denied 1135 S.Ct. 3048 (1 993).

B. ATTACHMENT:

Article 35.01 C.C.P. Provides that an attachment may issue upon request of either party for an absent summoned juror.

C. EXEMPTIONS:

Government Code § 62.106 governs exemptions from jury service and provides as follows:

(a) A person qualified to serve as a petit juror may establish an exemption from jury service if the person:

(1) is over 70 years of age;
(2) has legal custody of a child younger than 10 years of age and the person's service on the jury requires leaving the child without adequate supervision;
(3) is a student of a public or private secondary school; (4) is a person enrolled and in actual attendance at an institution of higher education;
(5) is an officer or an employee of the senate, the house of representatives, or any department, commission, board, office, or other agency in the legislative branch of state government;
(6) is summoned for service in a county with a population of at least 200,000, unless that county uses a jury plan under Section 62.011 and the period authorized under Section 62.01 (b)(5) exceeds two years, and the person has served as a petit juror in the county during the 24-month period preceding the date the person is to appear for jury service;
(7) is the primary caretaker of a person who is an invalid unable to care for himself; or
(8) except as provided by Subsection (b), is summoned for service in a county with a population of at least 250,000 and the person has served as a petit juror in the county during the three-year period preceding the date the person is to appear for jury service.

(b) Subsection (a)(8) does not apply if the jury wheel in the county has been reconstituted after the date the person served as a petit juror.

The defense must show harm once again, i.e. forced to accept an objectionable juror for there to be reversible error. Starles V. State, 776 S.W.2d 808 (Tex. App. - Fort Worth, 1989).

D. CENTRAL JURY ROOM QUESTIONING REGARDING QUALIFICATIONS AND EXCUSES:

Government Code § 62.102 sets out general qualifications for jury service and provides that a person is disqualified to serve as a petit juror unless he:

(a) is at least 18 years of age;
(b) is a citizen of this state and of the county in which he is to serve as a juror;
(c) is qualified under the constitutions and laws to vote in the county in which he is to serve as a juror;
(d) is of sound mind and good moral character;
(e) is able to read and write;
(f) has not served as a petit juror for six days during the preceding three months in the county court or during the preceding six months in the district court;
(g) has not been convicted or a felony; and
(h) is not under indictment or other legal accusation of misdemeanor or felony theft or any other felony.

Though there is no absolute right to be present at the questioning of the general panel in the central jury room by the defendant, it is common practice to have the defendant and counsel present so that the trial court can hear and grant (or deny) excuses. To grant excuses absent the defendant is error. Yanez V. State, 677 S.W.2d 62, 67 (Tex. Crim. App. 1984). But see, Bath V. State, 951 S.W.2d 11, 22-23 (Tex. App. - Corpus Christi, 1997).

Article 35.03 § 1, C.C.P. provides that the court shall determine excuses offered for not serving as a juror, and if the court deems the excuse sufficient, the court shall discharge the juror or postpone the juror's service to a date specified by the court.

Article 35.03 §2, C.C.P. gives only the trial court discretion to excuse prospective jurors in a capital case. Article 36.29(1,) C.C.P. allows the trial court in a capital case to replace a disabled juror with an alternate after the jury is sworn.

Government Code, Section 62.110(c) provides that the court or the court's designee may not excuse a prospective juror for an economic reason unless each party of record is present and approves the release of the juror for that reason.

When defense counsel deems a juror improperly excused, he must make a timely and specific objection and request an attachment of said juror. Coleman V. State, 881 S.W.2d 344 (Tex. Crim. App. 1994), cert. denied 15 S.Ct. 763 (1995). Counsel should ensure all of the steps taken to preserve error are on the record.

E. SHUFFLE (Art. 35.11, C.C.P.):

A shuffle demand must be made prior to the commencement of voir dire examination of the panel, i.e., before the prosecutor addresses the panel. Williams. State, 719 S.W.2d 573 (Tex. Cr. App. 1986).

In capital cases, voir dire commences when the judge begins examining the ~el. Davis v. State, 782 S.W.2d 211 (Tex.Crim.App. 1989).

In Johnson v. State, 977 S.W.2d 137 (Tex.Crim.App. 1998), the Court of Criminal Appeals held that a trial court errs in denying a defendant's request for a jury shuffle where the first shuffle was procedurally improper. However, if the defendant requests the first shuffle and does not object to its procedures, there is no error in denying a subsequent request for a shuffle. Because the first shuffle of the jury was not a legal shuffle, the court holds that the trial court erred in denying the defendant's subsequent motion to shuffle the jury. Nevertheless, the defendant waived error because he did not complain about the procedural irregularities of the initial shuffle. The defendant requested the shuffle before the jury was seated and then asked for another shuffle because he was not satisfied with how the panel was seated. The defendant's objection to the first shuffle was not based on the procedures used, but merely on the result.

Both the State and the defense are permitted one shuffle under Art. 35.11 C.C.P. Urbano V. State, 760 S.W.2d 33, (Tex.App. --Houston [1st Dist] 1988). [In Urbano the court granted a defense request for a shuffle, then outside the presence ofthe defendant granted the State1s request for a shuffle.] This decision conflicts with Contreras v. State, 733 S.W.2d 646 (Tex.App. --San Antonio 1987). In Contreras, the court held that the statute only required one shuffle. First come, first served. See Chappell v. State 850 S.W.2d 508 (Tex.Crim.App. 1993). The State requested another shuffle after the jury panel was shuffled at the request of the defendant. The Court of Criminal Appeals reversed saying that such error was not even the subject of harm analysis. Jones v. State, 853 S.W.2d 146 (Tex.Crim.App. 1992).

However, following Roberts V. State. No. 1481-97 (Tex.Crim.App. 10/21/98), it now appears that jury shuffle error is subject to a harm analysis.

PRACTICE NOTE: Counsel should be familiar with the proposed procedure for selection. Counsel is entitled to individual voir dire pursuant to Art. 35.17, C.C.P., so the shuffle often occurs in a central jury room.

F. JUROR QUESTIONNAIRES

Counsel should always submit a proposed questionnaire for dissemination to thejury.
This helps formulate a jury selection outline as well. See attachment. No.1

G. VOIR DIRE PROCEDURE (Art. 35.17 §2, C.C.P.):

Art. 35.17 §2 provides:

"In a capital felony case in which the State seeks the death penalty, the court shall propound to the entire panel of prospective jurors questions concerning the principles as applicable to the case on trial, of reasonable doubt, burden of proof, return of indictment by grand jury, presumption of innocence and opinion. Then, on demand of the State or defendant, either is entitled to examine each juror on voir dire individually and apart from the entire panel, and may fi1ler questions the juror on the principles propounded by the court."

The procedure for exercising challenges in a capital case is set forth in Article 35.13C.C.P:

"A juror in a capital case in which the state has made it known it will seek the death penalty, held to be qualified, shall be passed for acceptance first to the state and then to the defendant. Challenges to jurors are either peremptory or for cause."

The trial court has authority to permit each side to question the entire panel collectively before individual voir dire commences.

Counsel is often presented with a strategic decision of exercising the 15 peremptory challenges at the time the juror is passed or after the panel has been finally qualified by the court: The latter has been a preference in Tarrant County with, of course, approval of the trial court.

IV. LAW OF DEATH PENALTY JUROR QUALIFICTION

A. TEST UNDER WAINWRIGHT V. WITT

Under Wainwright v. Witt, a prospective juror can be removed for cause if his views on capital punishment are such that they would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Wainwright V. Witt, 469 U.S. 412 (1985); Adams v. Texas, 448 U.S. 38 (1980); Lockhart v. MeCree, 476 U.S. 162(1986); McFadden v. Johnson 166 F.3d 757(5th Cir. 1999); United States v. Webster, 162 F.3d 308 (5~ Cir. 1998); William v. Collins, 16 F3d 626 (5~ Cir. 1994); cert. denied 512 U.S. 1289 (1994); Smith v. State. 907 S.W.2d 522 (Tex.Crim.App.1995); Garcia. State, 887 S.W.2d 862 (Tex.Crim.App. 1994), cert. denied, 514 U.S. 1005 (1995); Zimmerman V. State. 860 S.W.2d 89 (Tex.Crim.App. 1993), cert. denied 513 U.S. 1021(1994); DeBlanc V. State. 799 S.W.2d 701 (Tex.Crim.App. 1990), cert. denied, 501 U.S. 1259 (1991); Pierce V. State, 777 S.W.2d 399 CFex.Crim.App. 1989), cert. denied 496 U.S. 912 (1990) ["If the juror is to obey his oath and follow the laws of Texas, he must be willing not only to accept that in certain circumstances death is an acceptable penalty, but also to answer the statutory questions without conscious distortion or bias.'1] Adams V. Texas, 448 U.S. 38 (1980); Gunter V. State, 858 S.W.2d 430 (Tex.Crim.App. 1993); cert. denied 510 U.S. 921(1993).

Prospective jurors who cannot fairly apply a valid capital punishment statute are not qualified. Ex parte Hughes. supra; Bell V. State, supra; McCoy V. State, 713 S.W.2d 940 (Tex.Crim.App. 1986), cert denied 480 U.S. 940 (1987). Jurors are disqualified when their opinions on the death penalty would either cause them to (1) refuse to return a verdict of guilty to capital murder; (2) be unable to honestly answer the special punishment issues following the instructions of the court. E.g., Garcia V. State, 887 S.W.2d 862 (Tex.Crim.App. 1994), cert. denied 514 U.S. 1005 (1995) [Prospective juror could not answer affirmatively the special issues.]; Chambers V. State, 866 S.W.2d 9 (Tex.Crim.App. 1993), cert. denied 511 U.S. 1100 (1993) [Prospective juror who would vote "no" to avoid imposing the death penalty is disqualified.]; Long V. State, 823 S.W.2d 259 (Tex.Crim.App. 1992), cert denied 505 U.S. 1224 (1992) [The prospective juror stated that he would vote "no" in order to prevent imposition of the death penalty.]. Even though a prospective juror states that he would not "lie" or consciously answer punishment issues falsely, he may be disqualified if the trial judge's assessment for the juror's responses leads to the conclusion that his death penalty beliefs would substantially impair his ability to answer the questions accurately.

Witherspoon and Witt limitations on the disqualification of prospective jurors who are against the death penalty only applies to challenges for cause. Witt does not limit state's power to exercise peremptory challenges to remove prospective jurors. Andrews v. Collins, 21 F.3d 612 (5th Cir. 1994), cert denied 513 U.S. 1114(1995); Staley V. State, 887 S.W.2d 890 (Tex.Crim.App. 1994), cert. denied 514 U.S. 1020 (1995); Hernandez v state, 809 S.W.2d 806 (Tex.Crim.App. 1991), cert. denied 504 U.S. 974 (1992).

Both sides have the right to explore the prospective jurors' attitudes regarding capital punishment. The Court of Criminal Appeals has rejected the argument that the Texas special

issue practice makes the juror's opinions on the death penalty irrelevant. Jones v. State, 843 S.W.2d 487 (Tex.Crim.App. 1992), cert. denied 507 U.S. 1035 (1993).

B. SPECIFIC INSTANCES OF DISQUALIFIED JURORS UNDER WAINWIRGHT V. WITT

Although prospective jurors cannot be removed for their opposition to the death penalty, a prospective juror can be excused if an individual's emotional opposition is to severe that it would cause the juror to be unable to answer the special issues without distortion. Mann V. Scott, 41 F.3d 968 (5th Cir. 1994), cert. denied 514 U.S. 1117 (1995).

A prospective juror who states that he could not take the oath to render a true verdict in a case involving the death penalty is disqualified. Ellis v. Lvnaugh 873 F.2d 830 (5~" Cir. 1989), cert. denied 493 U.S. 970 (1989); Smith v. State 907 S.W.2d 522 (Tex.Crim.App.
1995); Gunter v. State 858 S.W.2d 430 (Tex.Crim.App. 1993); cert. denied 510 U.S. 921 (1993). When a venire person states that her convictions about the death penalty are such that she cannot take the standard oath administered to jurors, the venire person is subject to challenge for cause. Such a venire person has made it "unmistakably clear that he could not be trusted to 'abide by existing law' and 'to follow conscientiously the instructions' of the trial judge." Cooks v. State, 844 S.W.2d 697 (Tex.Crim.App. 1992), cert denied 509 U.S. 927 (1993); Goodwin v. State 799 S.W.2d 719 (Tex.Crim.App. 1990) [Prospective juror who stated that she could not take the oath was disqualified even though she stated if forced to participate she would truthfully answer the special issues. The trial judge's decision to grant the state's challenge was not an abuse of discretion.]; Smith v. State, supra; Montova V. State, 744 S.W.2d 15 (Tex.Crim.App. 1987), cert. denied 487 U.S. 1227 (1988).

A prospective juror who acknowledges religious views that conflicted with the state law was disqualified because he could not affirm that he would adhere to the courts instructions on the law. Kinnamon V. State, 791 S.W.2d 84 (Tex.Crim.App. 1990).

When the record shows that there is serious doubt about whether the juror can actually vote to impose the death penalty, the prospective juror is subject to challenge although the juror may not be philosophically opposed to the death penalty. United States v. Webster, 162 F.3d 308 (5~ Cir. 1998). When the prospective juror states that he cannot apply the Texas special issues even though he has no philosophical disagreement with capital punishment, the juror has a bias against the state law. Drinkard v. State 776 S.W.2d 181 (Tex.Crim.App. 1989).

C. JUROR DISQUALIFICATION FOR INABILITY TO APPLY AN ASPECT OF TEXAS DEATH
PENALTY LAW

Many prospective jurors are disqualified from jury service in capital cases because they cannot set aside their own predilections and follow the requirements of the law.

The prospective juror must be willing to follow the specific provisions of the law applicable to the case. A prospective juror who states that he is unwilling to impose the death penalty for the particular class of murder charged is not qualified, even though the
juror might be willing to consider the death penalty for other types of offense. United
States V. Moore, 149 F.3d 773 (8th Cir. 1998), cert. denied 119 S.Ct. 570 (1998) [Trial judge properly granted challenge against (1) a juror who could not consider death penalty for a party (2) a juror would only consider death penalty "if a person murdered 100 or 200 people."]; Fuller V. State 829 S.W.2d 191(Tex.Crim.App. 1992), cert. denied 508 U.S. 941 (1993) [The prospective juror was unwilling to impose the death penalty unless there was evidence that the defendant was a serial killer. The court reasoned, "because our law does not categorically reserve capital punishment only for those who have murdered before, neither may individual jurors in capital murder case. They may, of course, hold that the absence of prior criminal history militates strongly against the death penalty. They may even find it difficult to imagine answering the second punishment issue affirmatively without convincing proof of past violence, regardless of other circumstances in the case. But they may not wholly refuse, before hearing any evidence whatsoever, to consider an accused for the death penalty unless he has been convicted of murder before."].

A juror who could not consider the death penalty unless the killing was premeditated is disqualified. Patrick v. State, 906 S.W.2d 481 (Tex.Crim.App. 1995); White V. State, 779 S.W.2d 809 (Tex.Crim.App. 1989), cert. denied 493 U.S. 9005 (1990); Esquivel V. State, 595 S.W.2d 516 (Tex.Crim.App. 1980), cert. denied 449 U.S. 986(1980); Chambers V. State, 568 S.W.2d 313 (Tex.Crim.App. 1978), cert. denied 440 U.S. 928(1979). A juror who could only consider the death penalty if the defendant confessed is not qualified. United States v. Flores, 63 F.3d 1342 (5th Cir. 1995); Monroe v. Blackburn, 748 F.2d 958 (5th Cir. 1984), cert. denied 476 U.S. 1145(1986). A prospective juror who states that he would not vote forth death [penalty in a case involving the law of parties (non-triggerman), regardless of the evidence can be excused. Selvage v. State, 680 S.W.2d 17 (Tex.Crim.App. 1984); Session v. State, 676 S.W.2d 1009(1985). A prospective juror who states that he could only assess the death penalty if the victim is a family member, is disqualified. Bell v. Lvnaugh, 828 F.2d 1085 (5th Cir.), cert. denied, 484 U.S. 933 (1987); O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983); Fearance v. State, 771 S.W.2d 486 (Tex.Crim.App. 1988), cert. denied, 492 U.S. 927(1989); Bell v. State, supra; Miller v. State, 741 S.W.2d 382 (Tex.Crim.App. 1987), cert. denied 496 U.S. 1061(1988). A prospective juror who would only consider the death penalty if victim was small child was disqualified. Russell v. Collins, 998 F.2d 1287 (5~ Cir. 1993), cert. denied 510 U.S. 1185(1994).

In Patrick v. State, 906 S.W.2d 481 (Tex.Crim.App. 1995), the Court held that a prospective juror unable to distinguish between "probability" and "possibility" is disqualified.

D. REQUIRING THE STATE TO SATISFY A BURDEN GREATER THAN THE LAW REQUIRES.

If a venire member indicates that he would hold the state to a higher standard of proof than that of beyond a reasonable d6ubt, then that venire member is subject to a challenge for cause under Art. 35.1 6(1,)(3) C.C.P. Cook v. State, 858 S.W.2d 467 (Tex.Crim.App. 1993). A prospective juror who would refuse to follow the court's instructions on reasonable doubt and would require proof beyond all doubt is not qualified. E.g., Wools v. McCotter, 798 F.2d 695 (5th Cir. 1986), cert. denied 478 U.S. 1031(1986); Corwin v. Johnson,150 F.3d
467 (5th Cir. 1993) cert. denied 509 U.S. 925(1993); Drew V. Collins. 964 F.2d 411 (5th Cir.
1992), cert. denied 509 U.S. 925 (1993); Jackson v. State, 822 S.W.2d 18 (Tex.Crim.App.
1992), cert. denied 509 U.S. 921(1993) [The prospective juror stated that he would hold the
state to 100% or beyond any doubt.].

E. LESSER OFFENSES

Jurors in capital cases should always be questioned about their ability to consider the lesser offense of murder. It is error to deny a defendant the right to voir dire jurors on this issue. Santana v. State. 714 S.W.2d I (Tex.Crim.App. 1986).

A juror's bias or prejudice against the entire range of punishment, including the death penalty, is a proper area of inquiry. Livingston v. State 739 S.W.2d 311 (Tex.Crim.App. 1987); C.C.P. Art. 35.16(1,)(1)(3), (c)(2). For example, a juror who states an inability to consider life imprisonment as a punishment for capital murder may be subject to challenge for cause. Cuevas V. State, 575 S.W.2d 543 (Tex.Crim.App. 1978). A juror must be able to consider the full range of punishment, including that for the lesser offense of murder. Cordova V. State, 733 S.W.2d 175 (Tex.Crim.App. 1987). Thus, a juror biased against the minimum punishment for the lesser offense of murder may be subject to challenge for cause. Barrow v. State, 688 S.W.2d 860 (Tex.Crim.App. 1985). However, the juror may be challenged on this ground only if the punishment at issue may actually be applicable to the case. Thus, neither party may rely on a juror's inability to assess the minimum punishment for a lesser offense on sheer speculation that it may become implicated. Rogers V. State 774 S.W.2d 247 (Tex.Crim.App. 1989).

A prospective juror who would automatically answer a special issue in the affirmative
whenever a defendant is guilty of capital murder is not qualified. Banda v. State, 890 S.W.2d
53 (Tex. Cr. App. 1994), cert. denied 115 S.Ct. 2253 (1995). During the voir dire process,
counsel who seeks to disqualify a prospective juror often attempts to phrase questions in such a manner to have the juror state he would automatically answer "yes't to one or more of
the special issues. See attachment No.2.

V. THE SPECIAL ISSUES (Art. 37.071, C.C.P.)

The jury must first decide whether the State proved beyond a reasonable doubt that:

A. There is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

If the jury was permitted to convict the defendant of capital murder as a party or conspirator the jury must decide as well, whether the state proved beyond a reasonable doubt that:

B. The defendant actually caused the death of the deceased or did not actually cause the death of the deceased, but intended to kill the deceased or another or anticipated that a human life would be taken.

Two jury instructions must be given by the court on how to answer those two issues:

1. Members of the jury need not agree on what particular evidence supports a negative answer to these issues;
2. Consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that mitigates against the imposition of the death penalty.

If ten or more jurors answered the future dangerousness and/or the parties special issue "no" the court must sentence the defendant to life in prison. Otherwise, the jury is confronted with the last special issue:

C. Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.

In connection with the last chance special issue the jury instruction must read:

1. You need not agree on what particular evidence supports an affirmative response, and;
2. You shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness.

Remember that the trial court has discretion to admit any evidence deemed relevant at the sentencing phase, unless it was unconstitutionally obtained or inadmissible under another law in the state.

VI. TIME LIMITS -

The court has the same right to limit the time spent on examining jurors as it does in noncapital cases. Bovd v. State 811 S.W.2d 105 (Tex.Crim.App. 1991), 112 S.Ct. 448 (1992) [45 minute time limit per juror not per se impermissible].

Counsel should strenuously object to any time limits proposed by the court in your individual voir dire. The statement that "open-ended" or "no-time limit" voir dire might lengthen the process is nonsense. See McCarter V. State, 837 S.W.2d 117 C(Tex.Cr.App. 1992).

In Etheridge V. State, 903 S.W.2d 1, the Court of Criminal Appeals set forth a three part test on this issue:
A. Whether defense counsel attempted to prolong the voir dire;
B. Whether questions counsel was not permitted to ask were proper; and
C. Whether the time limit prevented counsel from asking proper questions.

To preserve objections to an unreasonable time limit you must (a) obtain an adverse ruling
on a request for additional time; (b) make a bill of exception for each proper question; (c) exhaust all peremptory challenges; (d) obtain an adverse ruling on your request for additional peremptories and (e) identify an objectionable member of the jury against whom you would have used the extra strike. Jd.,at9-10.

VII. CHALLENGES FOR CAUSE POST PENRY) (Art. 35.16 (a)(9)(1O),(c)(2))

A. Future Dangerousness

The facts of the offense can be legally sufficient to prove the future dangerousness issue, but a juror is qualified if he believes that the crime alone can never establish that the defendant is a continuing threat to society. Garrett v. State, 851 S.W.2d 859-60 (Tex.Cr.App. 193). However, Garrett does not apply to a juror who would require the state to prove a specific aggravating circumstance that is not required by law, such as requiring the state to prove that the defendant would engage in "future murders." Drew V. State, 743 S.W.2d207, 211 (Tex.Crim.App. 1987).

A juror is subject to a challenge for cause if he would answer "yes" when there is a "possibility" as opposed to the statutory required term of "probability" that the defendant would commit criminal acts of violence. Patrick V. State, 906 S.W.2d 481 (Tex. Cr. App. 1995). The word "probability" does not have a statutory definition. However, when the Court of Criminal Appeals reviews the sufficiency of the evidence of future dangerousness, it defines a "probability" as "more than a bare chance". Ellason V. State, 815 S.W.2d 656, 659 (Tex. Cr. App. 1991).

"Criminal acts of violence" does not have a definition by statute either. Once again the courts and the legislature want jurors to apply a commonly understood meaning of the term. Note that it does not say "threatened violence." However, our Court has held that proof of nonviolent offenses can be used to prove that the defendant will commit criminal acts of violence because the defendant's criminal behavior may escalate in the future. Willis v. State, 785 S.W.2d 378, 387 (Tex. Cr. App. 1990).

Despite the U.S. Supreme Court's conclusion that the term "continuing threat" is a crucial term in this special issue, there is no statutory definition. In Jackson v. State, 823 S.W.2d 18, 25 (Tex. Cr. App. 1990) our Court of Criminal Appeals held that the jury has discretion in determining how long the defendant's violent conduct must persist.

Often in voir dire, defense counsel uses the phrases "ongoing", "constant" or "habitually" in an attempt to rehabilitate jurors.

The term "society" triggers a lot of debate. Of course, there is no statutory definition. Does "society" mean free-world society, prison or jail society, all of society. Our court has stated that it means all of society including the prison society. Jones v. State, 843 S.W.2d 487, 495 (Tex. Cr. App. 1992).

B. Parole

A jury is likely to speculate about parole despite our court's current rulings that stand for the proposition that a juror put the possibility of parole "completely out of his mind" when deciding whether he would constitute a continuing threat to society. Smith v. State, 898 S.W.2d 838, 880 (Tex. Cr. App. 1995).

Always use the term "confinement for life" when contrasting it to the death penalty. If the juror cannot follow the Court's instruction to disregard the applicability of parole, challenge under Art. 35.1 6(c)(2).

NOTE: Our legislature is dealing with this issue, as this is written, regarding informing the jury of the forty (40) year flat time, as well as life without parole.

C. The Parties Special Issue

By law, a jury can answer the parties special issue "yes" when the defendant actually
"anticipated that a human life would be taken" by his accomplice. See Penal Code Section 7.02(b)
and Lawton V. State, 913 S.W.2d 542 (Tex. Cr. App. 1995).

However, the word "anticipated"1 is not statutorily defined. Counsel should feel free to be creative
and use this term to your advantage.

D. The Mitigating Special Issue.

There always exists mitigating evidence. It is only limited by counsel's imagination.
The obvious evidence is:

1. Mental retardation (Hopefully new law makes this a non-issue).

2. Low IQ

3. Poor parental guidance and upbringing

4. Lack of parents

5. Child abuse

6. Drug and alcohol abuse

7. Cooperation with authorities

8. Good school history (including conduct)

9. Bad school history (lack of interest by officials)

10. Church activities

11. Extracurricular school activities

The list can go on and on.

The trial court has no discretion to exclude constitutionally relevant mitigating evidence. Skipper V. South Carolina 476 U.S. (1986); Kemp V. State, 876 S.W.2d 289, 307 (Tex. Cr. App. 1992). See also. Tex. R. Crim. Evid. 402 and 403.

Article I, § 10 of the Texas Constitution gives counsel wide latitude to "properly question prospective jurors during voir dire in order to effectively exercise peremptory challenges or to establish a predicate for a challenge for cause." & Parte McKay, 819 S.W.2d 478, 483 (Tex. Cr. App. 1990). Always quote this article when posing objections or urging argument.

Questions, therefore, about "anticipated" facts are proper to uncover potential bias or prejudice. So ask if a certain fact were proven can you be fair and impartial? This is proper. Nunflo V. State, 808 S.W.2d 482,483 (Tex. Cr. App. 1991). However, it is improper to ask a juror to make a commitment about what his verdict would be or how he would resolve any issue if certain facts are proven. Maddux V. State, 862 S.W.2d 590, 592 (Tex. Cr. App. 1993).

VII. OTHER CONCERNS

Do not forget your Batson challenges and Sixth Amendment claims to prohibit the systematic under representation of any cognizable groups in the community. See also Art. 19.06 C.C.P. regarding grand jurors.

IX. CONCLUSION: REASON V. EMOTION

Emotions will run high in capital cases. It is the nature of the beast and offers fuel to these cases. Both sides inevitably will attempt to reach the jurors with emotional claims. Jurors obviously, will be emotional as they seek to decide your client's fate. The desire to punish is steeped in emotions, especially anger. Acknowledging that emotion is already deeply at work in moral decision making can help the capital litigator focus on the necessary investigation, research, and vocabulary required to give the jurors the courage to render an unpopular verdict.

ATTACHMENT NO.1
SAMPLE JURY QUESTIONNMRE

INSTRUCTIONS FOR JUROR
This questionnaire is designed to obtain information from you with respect to your qualifications to sit as a juror in this case. By the use of the questionnaire, the process of jury selection will be substantially shortened. Please answer the following questions as completely and truthfully as possible. The information contained within the questionnaire will become part of the Court's permanent record. During the questioning by the court and the attorneys, you will be given an opportunity to explain or expand any answers, if necessary.
Because this questionnaire is part of the jury selection process, the questions must be answered by you under penalty of perjury and you should fill out this questionnaire by yourself without consulting any other person.
If you wish to make further comments regarding any of your answers, please use the Explanation Sheet at the back of your questionnaire to do so.
If you do not understand a question, please write "I do not understand" and the question will be explained to you in Court. If you feel uncomfortable answering any questions on your questionnaire, please write "PRIVATE" next to the question(s) and this matter will be taken up privately with the Judge and the attorneys.
The information contained within the questionnaire will become part of the Court's permanent record, but it will not be distributed to anyone except the attorneys in the case and the judge.

PLEASE REALIZE THERE ARE NO RIGHT OR WRONG ANSWERS - JUST HONEST ONES.

Preliminary Instruction

Although neither side of the case is permitted to tell you their version of the facts of this case, both the prosecution and the defense have agreed to reveal the following information to see if you know or have heard about this case: This is a case involving a charge of capital murder of Norma Odom and Alma Solis on October 15th, 1997, in Fort Worth, Tarrant County, Texas. The Defendant in this case is James Wesley Odom
There has been media coverage about this case. If chosen as a juror, you will take an oath that requires you to return a verdict, whatever that verdict is, on the basis of the evidence that you hear in the courtroom and not from some outside source. There is nothing wrong with a prospective juror having heard of this case.

JUROR OUESTIONNAIRE JUROR NUMBER______

YOUR ANSWERS WILL BE USED SOLELY IN THE SELECTION OF A JURY AND FOR NO OTHER PURPOSE
I Juror Name: Age:
2. Place of birth:
3. Where else have you lived and when did you live there?
4. Do you read, write, speak and/or understand the English language?
5. What is your race or ethnic background?
6. Do you own or rent your home?
7. Are you: __ married __ years _ living with someone _ divorced and remarried __ separated __ Widowed __ single
8. Are you: __ employed __ student __ retired __ unemployed __ homemaker
9. If unemployed, retired, homemaker or student, answer the following for your last job.
a. Where do you/did you work?
b. Job title? How long?
c. Do you hire fire or supervise others?
d. Describe your job responsibilities:

e. What do you enjoy the most and least about your job?
f. What kind of jobs have you held in the past?
10. If married or sharing a household with someone (other than a child), is he/she:
__ employed __ student __ retired __ unemployed ___homemaker
11. If your spouse or the person with whom you share your household is not currently employed (and is not a child),
answer the questions for his/'her last job.
a. Where does he/she work? How long?
b. Job title? How long?
c. Does he/she hire, fire or supervise others? d. Describe his 'her job responsibilities:
e. What kind of jobs have you held in the past?
12. Mow far did you go in school?
13. If you attended college, vocational or technical school, what was your:
a. Major subject? __________ Degrees you hold?

b. Name and location of school?
c. What do you consider to be your most important or meaningfu1 informal learning experience?
d. Have you taken any course in law, law enforcement, criminology, African-American history, philosophy, religion or theology?
14. If your spouse or the person with whom you share your household attended college, vocational or technical school, what was his/her:
a. Major subject? _________________ Degrees he/she holds?
b. Name and location of school?
15. Have you ever served in the military?
a. What branch? Your highest rank held?
b. Did you enlist or were you drafted? Re-enlisted?
c. Where were you stationed?
d. Were you ever in combat?

If yes, were you ever required to take a human life?
e. What medals, honors or commendations did you receive?
f. Have you ever participated in a court martial?
g. Were you ever involved in any way with military law enforcement, court martial’s or investigations?
If yes, describe your involvement:

16. Children Step Children Grandchildren
Sex Age Occupation Sex Age Occupation Sex Age Occupation

17. Parents/Step-Parents Brothers/Sisters
Sex Age Education Occupation Sex Age Education Occupation

18. Have you, any family member or friend ever run for any public or political office? If yes, please describe:
19. What is your political affiliation?
20. Are you a conservative, moderate or liberal?
21. Have you ever donated any time, money or services to any political campaign or issue? If yes, please describe:
22. What is your religious affiliation, if any?
23. How often do you attend services? __ more than once a week __ every week __ occasional __ rarely __ never
24. What is the fundamental teaching of your religion?
25. What influence has religion had in your life?

26. Describe your religious beliefs or philosophy:
27. Have you ever had a different religious affiliation? . If yes, what religion?
28. What activities, if any, other than attendance, are you involved with for your church, temple or religious organization?

29. Are you presently or have you ever been a member of any societies, unions, professional association, civic clubs,
fraternities, sororities, or other organizations or groups?
a. Which ones?
b. Have you ever served as an officer?
c. What group(s) or organization(s) and what position(s)?
30. What are your hobbies, and/or spare time activities?
31. Do you watch any religious programs on television? If yes, which program(s) and how often do you watch these programs:
32. Are there any religious leaders that you feel are wrong, negative or improper? Please explain:
33. Are there any religious leaders or programs on television or radio that you feel are wrong, negative or improper? Please explain:
34. Please complete the charts below:
Television Radio
Favorite Program Favorite Station Hours Spent Favorite Program Favorite Station Hours Spent

Newspapers Magazine Books
Name How often Name How Often Author Type of Book

35. What were the last three books you read?
36. What is your main source of news?
37. Have you, family members or friends ever been employed by, or connected with, any law enforcement agency? (This includes police, sheriff, FBI, CIA, IRS, U.S. Marshall, Highway Patrol, Drug Enforcement Administration, State Attorney, State Prisons or County Jails, Attorney General, Family Services, United States Attorney, Immigration and Naturalization Service, Probation Office, State or Federal Courthouse, or any other agency)? ___ yes ___ no. Please specify below. Yourself Family Members Friends
Agency Position Date(s) Agency Position Date(s) Agency Position Date(s)

38. Name two or three people that you know or have heard of that you respect the most:

39. Please list your favorite famous person(s) or public figures, living or dead:
40. Please list the one person you feel most influenced your life and why:
41. Would you characterize yourself as a leader or follower?
42. How would your close friends and relatives describe you?
43. Have you ever had a bumper sticker on your car? ___ yes ___ no. If yes, what did the bumper sticker say? 44. Have you, your spouse, family member or friends ever used the services of any state or federal agency and/or District Attorney's Office or U.S.
Attorney's Office? Please specify below. Agency Position Date(s) Agency Position Date(s) Agency Position Date(s)

45. Have you, any family member or friends ever been a regular court observer? If yes, in what capacity?
46. Have you ever attended any course, seminar, lecture or demonstration connected with any law enforcement agency? Please explain:
47. Do you belong or associate with any groups which have crime prevention or law enforcement as a goal? Please explain:
48. Have you, any family member or friends, ever volunteered your services to any law enforcement agency? Please explain:
49. Do you know any lawyers, district attorneys or judges? Who?
50. Have you ever hired a lawyer for any reason? What was the reason(s) for hiring a lawyer?
51. Have you ever had a bad experience with a lawyer? Please explain:
52. Have you, a family member or friend ever worked for a criminal defense attorney? Who?:
53. Have you, any family members or friends ever filed a police report? Please explain:
54. Have you, any family members or friends ever called the police? Please explain:
55. Have you, or anyone close to you ever been interviewed by the police or any other law enforcement agency? Please explain:
56. Have you, any family members or friends ever had a pleasant experience involving law enforcement? Please explain:
57. Have you, any family members or friends ever had an unpleasant experience involving law enforcement? Please explain:
58. What Texas criminal cases have you followed in the media? Why did you follow the case(s)?
59. Have you, any family members or friends ever been a victim of any crime? Please explain:
60. Have you ever witnessed any violence (other than on T.V.)? Please explain:
61. If you, any family members or friends have been a victim of any crime, was anyone charged with the offense against you? If yes, was that person prosecuted in court and what was the result?
62. Have you, any family members or friends ever been a witness in a civil or criminal case, or any other legal hearing? If yes, what was the nature of the case?
63. Have you, any family members or friends ever been charged, arrested, indicted or convicted of any criminal offense? lf yes, what was the nature of the case? 64. Do you now own (or have you ever owned) any weapons? If yes, what type of weapon(s) and what was the reason for
having the weapon(s)?
65. Have you ever fired a gun? Please explain: 66. Have you ever had a bad experience with any type of weapon? Please explain:
67. Do you know anyone who has been shot or killed? Please explain:
68. Have you suffered a sudden or traumatic loss of a family member or close friend? How has this loss affected you?
69. Has anyone ever sued you or a family member? __ yes __ no. If yes, what was the nature of the case?
70. Have you ever served as a juror? __ yes __ no. How many times?
Case #1: What type of case? __ civil __ criminal Did you reach a verdict? Were you a foreperson?
Did you feel you had all of the information you needed to reach a verdict?
How would you feel if you later learned that you, as a juror, did not have all of the information ,and the new information might have caused you to return a different verdict?

Case #2: What type of case? __ civil __ criminal Did you reach a verdict? Were you a foreperson?
Did you feel you had all of the information you needed to reach a verdict?
How would you feel if you later learned that you, as a juror, did not have all of the information ,and the new information might have caused you to return a different verdict?
71. Have you ever served on a Grand Jury? Please give dates and details:
72. Have you ever appeared before a Grand Jury? Please give dates and details:
73. Regarding your jury service: (circle the letter(s) which apply to you):
a. I can tell pretty easily when a person is telling a lie.
b. When I make up my mind I rarely change it.
c. I can frequently be influenced by the opinion of others.
d. I always follow my own ideas rather than do what others expect of me.
74. Have you ever been to court before? Please give details:
75. Have you or anyone you know ever testified? For each time you have appeared, please give dates and details:
76. Have you, a family member or friend ever been discriminated against for any reason (i.e., age, gender, race, religion, etc.)? Please explain:
77. Have you, a family member or any friend ever had a bad experience with someone who was black?. Please explain:
78. In your opinion, how are blacks treated in America today?
79. Some people feel that blacks are more violent than other racial groups. What is your opinion?
80. Some people feel that most blacks are morally inferior to other racial groups due to their background and upbringing. What is your opinion?
81. In your opinion, what are the three (3) most important problems with law and order today?
82. What is the principal cause of crime in America?
83. How serious a problem is crime in your neighborhood?
84. What steps have you taken to protect yourself?
85. Are there enough law enforcement officials to handle the crime in your neighborhood?
86. What, in your opinion, should or could be done about the crime problem?
87. Have you or any member of your family ever belonged to, or contributed money or time to any neighborhood watch, crime stoppers, victims for victims, Mothers against drunk drivers, students against drunk drivers or other related programs? Which group(s)?
88. What is the first thing that comes to your mind when you think of:

Defense Attorneys:

Prosecutors:
89. Please tell us your reaction to each of the following statements:
a. If a person is brought to trial on murder charges, that person is probably guilty.
__ Agree strongly __ Disagree Strongly __ No Opinion
__ Agree __ Disagree __ Don't Know
Please explain your answer:
b. A defendant is innocent unless proven guilty beyond a reasonable doubt:
__ Agree strongly __ Disagree Strongly __ No Opinion
__ Agree __ Disagree __ Don't Know
Please explain your answer:
c. It is the job of the jury to solve the crime.
__ Agree strongly __ Disagree Strongly __ No Opinion
__ Agree __ Disagree __ Don't Know
Please explain your answer:

The individual in this case is accused of capital murder. If; and only if, the state proves their case beyond a reasonable doubt as to the defendant,
the jury will then decide punishment There is no way of knowing whether the jury will even find the defendant guilty, but the law requires
that you answer certain questions regarding your thoughts and feelings on the death penalty.

90. Describe your views on the death penalty:
91. Have you ever held a different view on the death penalty? __ yes __ no. If yes, what was your prior view and why did you change it?
92. Which of the following best describes your view of the death penalty:
___ Absolutely appropriate in every case where someone has been killed;
___ Generally appropriate with very few exceptions:
___ Appropriate in some cases, inappropriate in most cases;
___Generally opposed with very few exceptions;
___ Absolutely opposed in every possible case.
Please explain your answer:
93. What is the best argument in favor of the death penalty?
94. What is the best argument in opposition of the death penalty?
95. Should the death penalty apply to someone who did not do the actual killing? __ yes __ no. Why?

96. Describe your feelings about plea bargaining in general:
97. Describe your feelings about the State plea bargaining with a person who commits murder:
98. What are some reasons why a convicted killer would agree to testify against other people?
99. How truthful, reliable or dependable is such testimony?
100. The Constitution says an accused citizen does not have to testify on his or her own behalf. How do you feel about this constitutional privilege?
101. What is the condition of your hearing? _______________ Your eye sight?
102. Do you have any health problems which could affect your ability to serve on this jury? __ yes __ no. Please explain:
103. Do you take any prescription medication of any kind? __ yes __ no. Please explain:
104. Are you now suffering or have you suffered from a medical problem or long term disability?
If yes, please explain:

105. Is there any reason why you would not want to serve as a juror in this case? Please explain:
106. Is there anything going on in your life or at work that would prevent you from giving this case your full attention? Please explain:
107. Is there anything you would like to discuss privately with the court? Please explain:
108. Is there anything else we should know about you? Please explain:

I hereby state that all the answers given in this juror questionnaire are true, correct, and complete to the best of my knowledge.

ATTACHMENT NO.2
VOIR DIRE OUTLINE

STANDARD VOIR DIRE OUTLINE

THE STATE OF TEXAS
vs.

I. INTRODUCTION

A. Uninteresting, tedious, time consuming - Confess longer than Prosecutors
B. To be as thorough as possible to see that an innocent man is not convicted - little bit of system dies - do you think every accused is entitled to that?
C. Important - Two Reasons
I. To accused - to get to know how you feel - 12 most qualified to sit in judgment
2. To jurors - time to ask questions - not sure about - not comfortable
D. Absolute candor
1. For me, for the accused, for yourself, and for the system. We are all officers of court and have equal duty to you, the law and our clients.
2. If you feel it, tell me - I need to know - not fair to start any other way.
E. Twelve open minds - If prosecutor would tell the truth.

II. DO YOU KNOW? (Your questionnaire should already cover this - so follow up)

A. Witness(s)?
B. Judge?
C. District Attorney's Staff?
D. Law Enforcement Officers?
1. Close friend(s)?
2. Family members?
E. Know anyone else on jury panel?

III. PRE - TRIAL PUBLICITY

A. Do you acknowledge influence of media
B. Knowledge of media coverage
C. Discussion of case with others
D. Hearing of opinions of others
E. Your opinions (see ait 35.16 (a) (10) for possible challenge)

IV. WHAT DID YOUR CLIENT DO?

A. Presumption of Innocence
I. 6~ grade civics, lip service, hard to apply
2. It is actual proof of innocence
3. At this time your duty to believe my client when he says that he is not guilty
4. What do you think of that?
5. This is not a new concept only for my client
B. Just because a person is charged with a crime, it is no evidence of his guilt
I. No witness before Grand Jury
2. Traffic ticket
C. Government decides to charge and the Government must prove every element beyond a reasonable doubt.
1. No one has passed on whether Government can prove his guilt beyond a reasonable doubt - Not even the Grand Jury

D. Accused does not have to bring you any evidence
E. Hold strong to the presumption of innocence until both sides are through - argument - charge
F. Just because the accused is so unfortunate to be charged - sitting here is no evidence of his guilt
G. Ever accused of something you didn't do? Remember how you felt - Accuse someone else? Remember how you felt. Do you believe a person can be accused when they are really not guilty? Do you believe that police ever arrest innocent people?
H. If you had to vote right now, do you have any feelings as to guilt or innocence at this moment?

V. PRIOR JURY EXPERIENCE (Your questionnaire should cover this)

A. Preponderance v.s.. Reasonable Doubt
I. Preponderance - Civil cases
2. Substantial evidence - Adm. Law Cases -job on line
3. Clear and convincing - Family court - child custody
4. Reasonable doubt, Higher than previous three - Applies where life is at stake
B. Did you reach verdict in prior service?
C. Foreman?
D. Grand Jury?

VI. VICTIM OF CRIME (see questionnaire)

A. Complainant
B. If a person is wrongfull6 accused should system be strong enough to find him not guilty

VII. REASONABLE DOUBT

A. Proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs
B. Could be Reasonable Doubt for you and not for someone else
C. Basic standard in all criminal cases from traffic ticket with fine only to sending a man to the penitentiary
1. In a traffic ticket case, it might be sufficient to convict on the opinion of a police officer alone, BUT
2. Where a citizen has been accused and could go to the penitentiary, you might want more
D. Require the state to bring you all the evidence that might tend to show what really happened on the day in question.
E. You might want and you are entitled to:
1. Consistent and reliable, unquestionable testimony
2. Evidence to corroborate what witnesses say
3. Physical evidence recovered
4. Physical evidence connected to the accused on trial
F. Possibilities are endless, but you decide whether or not the prosecution has removed any and all Reasonable Doubt
G. 100% of the elements
1. Doubt as to certain facts might cause reasonable doubt as to an element
H. Vote your own conscience - not as a team
1. Not as articulate as others
I. Require cold hard unquestionable facts
J. Look at Lack of Evidence as well in determining Reasonable Doubt.

VIII. JURY FUNCTION

A. Judge of facts - or lack of facts
B. Based on what you hear from witness stand. Is it sufficient?
C. Decide whether or not the prosecution proved it
D. Not anyone's fault if evidence is not sufficient to convict
E. Judge of law. Court will not require you to take an oath to follow a law you do not believe in.

IX. DISCUSS LAW

A. Prosecutor went over elements - not every homicide is a murder.
B. Defensive charges

X. CREDIBILITY OF WITNESS

A. Not a question of who proved their side of the case
B. Would you require the accused to bring you any evidence showing he is not guilty before you could acquit him?
C. How many of you have been accused of doing something you didn't do? Many times it would be very difficult to prove that you didn't do something.
D. Prosecution has a duty to prove it and remove any and all reasonable doubts from you minds

XI. CREDIBILITY OF WITNESS

A. Conflicts, blue socks v.s.. black socks
B. Weight to be given their testimony
C. Everyday life
D. Clear, consistent, reliable and supported by evidence
E. Sales pitch or chips fall where they may

XII. PUNISHMENT

A. Bifurcated Trial - two phases
B. Application for probation
C. 5 - 99 years, life, fine
D. Consider full range of punishment
E. Consider probation

XIII. FOLLOW UP

A. Presumption of Innocence
I. Hold strong until you are convinced beyond any reasonable doubt - WAIT
2. Even if you think there is a possibility or probability that the accused is guilty, will you vote "Not Guilty" if you have a reasonable doubt?
3. Won't feel badly about not doing what the State of Texas wants if you have a doubt?
4. Will require the State to prove 100% of the elements, and prove beyond a reasonable doubt that it was not done in self-defense.
5. If State of Texas only proves 990/,, you will find the accused "Not Guilty?"
6. Do you believe that a person can be charged and not guilty?
B. Failure to Testify
I. Defendant not required to offer any evidence
2. Not a question of who proved what
C. Vote Your Own Conscience
I. Make friends, etc.
2. Require cold hard unquestionable facts
3. Not conjecture, guess work, speculation or innuendo
4. Do not supply evidence if the evidence is not there or creates a reasonable doubt. Vote "Not Guilty" and not feel badly that you did not
do what the State wanted you to do.
5. Do not guess a man into the penitentiary

XIV DEFENSIVE ISSUES

A. Self Defense (if applicable)
1 Can you conceive of circumstances where you believe that a person is justified in killing anther human being if that person believes that he is in immediate danger of being seriously injured or killed by the attacker?
2. Do you have any adverse feelings against a person who might be willing to use a gun to protect himself?
3. Do you understand that our plea here is not guilty and that we will ask you to acquit______by reason of justifiable homicide? That is ______________ does not deny that he caused the death of ________ but his defense is that the killing was one that the law justifies, namely that it was a homicide committed in self defense.
4. Do you think you could sit on this type of jury? And if the facts justified it, vote "Not Guilty" by reason of self defense?
5. Do you own firearms?
6. Have you had any experience with firearms or weapons?

XV POSSIBLE CHALLENGE AREAS

A. Police Officer Testimony
1. Officers in courtroom
B. Race
C. Probation

XVI OTHER AREAS TO EXPLORE

A. Lifestyle of Defendant
B. Drug use
C. Alcohol use
D. Accomplices

VOIR DIRE REHABILITATION OUESTIONS

I. REHABILITATION REGARDING DEATH PENALTY

A. OATH

JUDGE.. uphold law

DA...enforce law

Your oath.to render true answers according to the law (Court's instructions) and the evidence, so help you God.

(I) LAW + (2) EVIDENCE

Law recognizes that people have their own beliefs and ideas. Law states that because a person has such beliefs he is not prevented from participating as juror.
It simply asks that he be willing to set aside his or her personal feelings about certain things listen to the sworn evidence, take law fr6m the court which he is
instructed to follow, and render a true verdict according to his oath.

B. IT'S OK TO BE AGAINST THE DEATH PENALTY

C. IT'S OK TO HESITATE IN VOTING IN SUCH FASHION AS DEATH PENALTY COULD RESULT. OK TO AGONIZE BEFORE VOTING FOR DEATH.

D. BOTTOM LINE IS TO BE HONEST WITH YOURSELF AND WITH THE JUDGE IN ANSWERING Q'S

IF YES, FINE
IF NO, FINE

E. You wouldn't ignore the Court's instructions and you oath and automatically vote to ensure the DP would not result regardless of the facts and the evidence.
Remember oath "...to render true answers..."

1. Wouldn't lie to yourself. Wouldn't consciously distort facts.
2. Wouldn't lie to the Judge

F. Ever read cases in newspaper where Death Penalty was appropriate.
G. Jury function is not to actually impose Death Penalty

H. Jury function is to give true answers to questions based on the law and evidence and render "yes" answers only if proven beyond a reasonable doubt.

I. May safeguards... DEATH PENALTY NOT IMPOSED ARBITRARILY
1. Only in special circumstances (CAPITAL MURDER SITUATE).
2. Intentional conduct.
3. Beyond a Reasonable Doubt in Guilt/lnnocence
4. Punishment questions
5. Beyond a Reasonable Doubt for Punishment questions to get "yes".
6. If any mitigating circumstances that tends towards life... can vote "yes".
7. This system of safeguard ensures that DP is not handed out arbitrarily, but only in those special cases. specials incidents. and special individuals
after each and every safeguard is meticulously satisfied.
8. 1 find "not" to the punishment questions then "no" to Death Penalty.
9. Law contemplates possibility that jury unable to answer Q's... then law determines what happens.
J. Surely ,you would not answer "no to special issue even if you believed Beyond a Reasonable Doubt that answer was

II. REHABILITATION Q's RE PROBATION AND LOWER R OF P

A. Legislature envisions may fact situations under which homicide could occur Legislature envisions many various personal relationships surroundings the
occurrence of any homicide.
B. Article 38.36 C.C.P. Perrmits evidence as to all circumstances surroundings the homicide, previous relationships between the accused and the deceased,
and all relevant facts going to show the condition of the mind of the accused.
· prior threats
· sz of parties
· friction
· mutual combat (not self- defense)
C. Law of parties...maybe person is guilty as a party but less responsible and shouldn't be punished as severely.
D. Individualized sentencing:
Only certain persons
1. Characters
2. No crime record of felony conviction...not a repeat offender
3. Type of person who can rehab himself outside of pen
4. Must fluid tyoe of offense that warranted 5-10 years.
5. Can consider it and then reject it
E. Probation permits the defendant to serve a sentence outside the penitentiary under special rules and restrictions imposed by the Court including jail time
F. If the defendant fails to abide by any of these rules then probations will be revoked...even on the last day of the probated sentence.
G. Read 42.12 C.C.P. conditions
H. The law only asks that a person be fair and keep an open mind considering the same, the law does not require that he give it".

DISQUALIFICATION QUESTIONS

I. DISQUALIFICATION OUESTIONS REGARDING FUTURE DANGEROUSNESS

I. Before called upon to answer questions would have found defendant guilty beyond a reasonable doubt of not just one, but two felony acts (Murder are Felony) or (murder for remuneration).
2. Would have found beyond a reasonable doubt that this type of person who killed another with a conscious objective (set out to do) and desire (want to do).
3. Isn't it logical, after having found these things two things that a probability would exist that this person would commit crimes or acts of violence that constitute continued threat to society?
4. Naturally follow that answer is "yes"
5. Wouldn't it seem to be fairly certain?
6. Wouldn't it seem to be automatic?

II. DISQUALIFICATION QUESTIONS REGARDING DEATH PENALTY (REVERSE WITHERSPOON)
1. Your belief in the death penalty appears to be very strong.
2. Is this something you have given a great deal of thought to?
3. Do you feel like whenever a same person has intentionally murdered another person in course of committing another felony, is the only appropriate punishment would be for this person to pay for that life with their life (eye for eye).
4. Hard to change your mind regarding that?
5. 1 take it that your feeling regarding the death penalty might or would influence your decision in determining guilt or innocence.
6. Would your feelings regarding the death penalty somehow affect or influence your decision in determining punishment?

III. DISOUALIFICATION OUESTIONS REGARDING CONFESSIONS

1. Confession may be necessarv tool of law enforcement.
2. Can you see where that might be useful and in fact convincing evidence.
3. May be onlv link to particular defendant...can't prove without it. He walks.
4. Many legal/procedural requirements must be met before jury can hear it
5. Jury may receive instruction to disregard if one of steps me. (Jury decides if that fact exists).
6. When onlv link, might you be a little more inclined to construe facts so that confession could be considered.

IV. DISOUALIFCATION QUESTIONS REGARDING PROBATION

1. Ever know anybody on probation?
2. What do you think about probation as a sentence generally?
3. A. Found voluntarily beyond a reasonable doubt
B. Found intentionally beyond a reasonable doubt
C. Found without legal excuse
D. Found without legal justification (i.e. not self defense)
E. Caused the death of another living. breathing. human being (while committing another felony) or (for remuneration).
F. Knowing Judge can't choose to not follow recommendation of probation by jury.
G. Knowing that the defendant will walk out back of courtroom with you.
H. Do you consider yourself a law abiding person?
I. Would you agree that probation is not much punishment for intentional murder or murdering someone for money.
4. Can you fairly consider it with a view towards giving it?
5. Can you envision set of circumstances where probation is appropriate in such a homicide?
6. De you think probation might be an appropriate sentence in some other type of case, but maybe not for murder?

V. LOCKING DOWN OUESTIONS

I. Regarding of how open minded we all want to be, you have indicated that __________________________________
2. You're probably wondering why does Mr. Daniel keep asking me this, I've told him how I feel.
3. I take it that essentially sums up your feeling and position.
4. I understand that to be your bottom line, am I correct?
5. That's how you feel regardless of whether Mr. Prosecutor asks you?
6. That's how you feel regardless of whether the Judge asks you?
7. The law does not require a person to serve if there are certain aspects of the law that you don't agree with and as a result thereof cannot follow.
8. Is that the kind of law that you just can't agree with and follow?

Copy and paste HTML from Appendix-b here.

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C: Innocents on Texas Death Row?

http://www.deathpenaltyinfo.org/article.php?scid=6&did=111#Released

Andrew Mitchell Texas Conviction 1981 Released 1993; returned to prison and then re-released 1999
Mitchell was awarded $40,000 from Smith County, Texas for withholding evidence at his trial which led to his death sentence in 1981. He spent 13 years on death row before the Texas Court of Criminal Appeals threw out his conviction. Mitchell pleaded guilty to conspiracy to commit murder and was given a 31 year sentence. (Dallas Morning News, 1/ 19/99) He was then released to a halfway house in early 1999 after being given credit for time served.

Kerry Max Cook Texas Conviction 1978 Released Nov. 1997 Concluded 1999
Cook was originally convicted of killing Linda Jo Edwards in 1978. In 1988, he came within 11 days of execution, when the U.S. Supreme Court ordered the Texas Court to review its decision. Cook's conviction was overturned in 1991. He was re-tried in 1992, but the trial ended in a hung jury. In 1993, a state district judge ruled that prosecutors had engaged in systematic misconduct, surpressing key evidence. In 1994, Cook was tried again, and this time found guilty and again sentenced to death. On Nov. 6, 1996, the Texas Court of Criminal Appeals reversed his conviction, saying that "prosecutorial and police misconduct has tainted this entire matter from the outset." The court ruled that key testimony from the 1994 trial could not be used in any further prosecution. Prior to the start of his fourth trial in February, 1999, Cook pleaded no contest to a reduced murder charge and was released. He continued to maintain his complete innocence, but accepted the deal to avoid the possibility of another wrongful conviction. Recent DNA tests from the victim matched that of an ex-boyfriend, and not that of Cook. This tended to contradict testimony from the ex-boyfriend.

Henry Lee Lucas Texas Conviction 1984 Commuted to Life 1998
Lucas originally confessed to the murder of an unnamed hitchhiker in Texas in 1979. He also confessed to hundreds of other murders including the murder of Jimmy Hoffa and his fourth grade teacher, who is still alive. Most of his confessions have proved false. Two investigations by successive Attorneys General in Texas have concluded that he almost certainly did not commit the murder for which he faced an execution date of June 30, 1998. Gov. George Bush commuted his sentence to life upon recommendation of the Board of Pardons and Paroles in June, 1998.

David Spence Texas Conviction 1984 Executed 1997
Spence was charged with murdering three teenagers in 1982. He was allegedly hired by a convenience store owner to kill another girl, and killed these victims by mistake. The convenience store owner, Muneer Deeb, was originally convicted and sentenced to death, but then was acquitted at a re-trial. The police lieutenant who supervised the investigation of Spence, Marvin Horton, later concluded: "I do not think David Spence committed this crime." Ramon Salinas, the homicide detective who actually conducted the investigation, said: "My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved." No physical evidence connected Spence to the crime. The case against Spence was pursued by a zealous narcotics cop who relied on testimony of prison inmates who were granted favors in return for testimony.

Gary Graham Texas Convicted 1981 Executed 2000
On June 23, 2000, Gary Graham was executed in Texas, despite claims that he was innocent. Graham was 17 when he was charged with the 1981 robbery and shooting of Bobby Lambert outside a Houston supermarket. He was convicted primarily on the testimony of one witness, Bernadine Skillern, who said she saw the killer's face for a few seconds through her car windshield, from a distance of 30 -40 feet away. Two other witnesses, both who worked at the grocery store and said they got a good look at the assailant, said Graham was not the killer but were never interviewed by Graham's court appointed attorney, Ronald Mock, and were not called to testify at trial. Three of the jurors who voted to convict Graham signed affidavits saying they would have voted differently had all of the evidence been available.

Cameron Willingham Texas Convicted 1992 Executed 2004
After examining evidence from the capital prosecution of Cameron Willingham, four national arson experts have concluded that the original investigation of Willingham's case was flawed and it is possible the fire was accidental. The independent investigation, reported by the Chicago Tribune, found that prosecutors and arson investigators used arson theories that have since been repudiated by scientific advances. Willingham was executed earlier this year in Texas despite his consistent claims of innocence. He was convicted of murdering his three children in a 1991 house fire.

Arson expert Gerald Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire." Former Louisiana State University fire instructor Kendall Ryland added, "[It] made me sick to think this guy was executed based on this investigation.... They executed this guy and they've just got no idea - at least not scientifically - if he set the fire, or if the fire was even intentionally set."

Willingham was convicted of capital murder after arson investigators concluded that 20 indicators of arson led them to believe that an accelerent had been used to set three separate fires inside his home. Among the only other evidence presented by prosecutors during the the trial was testimony from jailhouse snitch Johnny E. Webb, a drug addict on psychiatric medication, who claimed Willingham had confessed to him in the county jail.

Some of the jurors who convicted Willingham were troubled when told of the new case review. Juror Dorinda Brokofsky asked, "Did anybody know about this prior to his execution? Now I will have to live with this for the rest of my life. Maybe this man was innocent." Prior to the execution, Willingham's defense attorneys presented expert testimony regarding the new arson investigation to the state's highest court, as well as to Texas Governor Rick Perry. No relief was granted and Willingham was executed on February 17, 2004. Coincidentally, less than a year after Willingham's execution, arson evidence presented by some of the same experts who had appealed for relief in Willingham's case helped free Ernest Willis from Texas's death row. The experts noted that the evidence in the Willingham case was nearly identical to the evidence used to exonerate Willis. (Chicago Tribune, December 9, 2004). Read the Chicago Tribune article. See Innocence Case Descriptions regarding Ernest Willis' case.

Nov. 21, 2005, 4:34PM
THE CANTU CASE: DEATH AND DOUBT
Did Texas execute an innocent man?
Eyewitness says he felt influenced by police to ID the teen as the killer

By LISE OLSEN
Copyright 2005, Houston Chronicle
RESOURCES
SPECIAL SERIES
Carlos Antonio Rios: Houston Chronicle
DEATH AND DOUBT — A Chronicle series by Lise Olsen on the conviction and execution of Ruben Cantu.

* Did Texas execute an innocent man? - Eyewitness says he felt influenced by police to ID the teen as as the killer.
* Wounded officer key to sentence - Attempts to discredit star witness failed at trial.
* Vow of silence blamed for ultimate penalty - Executed man's co-defendant says years of guilty have led him to try to clear his friend's name.
* Brother speaks up - Man says if he'd been asked to testify, he might have saved Cantu.

Texas executed its fifth teenage offender at 22 minutes after midnight on Aug. 24, 1993, after his last request for bubble gum had been refused and his final claim of innocence had been forever silenced.

Ruben Cantu, 17 at the time of his crime, had no previous convictions, but a San Antonio prosecutor had branded him a violent thief, gang member and murderer who ruthlessly shot one victim nine times with a rifle before emptying at least nine more rounds into the only eyewitness — a man who barely survived to testify.

Four days after a Bexar County jury delivered its verdict, Cantu wrote this letter to the residents of San Antonio: "My name is Ruben M. Cantu and I am only 18 years old. I got to the 9th grade and I have been framed in a capital murder case."

A dozen years after his execution, a Houston Chronicle investigation suggests that Cantu, a former special-ed student who grew up in a tough neighborhood on the south side of San Antonio, was likely telling the truth.

Cantu's long-silent co-defendant, David Garza, just 15 when the two boys allegedly committed a murder-robbery together, has signed a sworn affidavit saying he allowed his friend to be falsely accused, though Cantu wasn't with him the night of the killing.

And the lone eyewitness, the man who survived the shooting, has recanted. He told the Chronicle he's sure that the person who shot him was not Cantu, but he felt pressured by police to identify the boy as the killer. Juan Moreno, an illegal immigrant at the time of the shooting, said his damning in-court identification was based on his fear of authorities and police interest in Cantu.

Cantu "was innocent. It was a case of an innocent person being killed," Moreno said.

These men, whose lives are united by nothing more than a single act of violence on Nov. 8, 1984, both claim that Texas executed the wrong man. Both believe they could have saved Cantu if they had had the courage to tell the truth before he died at 26.

Full series at: http://www.chron.com/disp/story.mpl/front/3472872.html

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D: Photos of Texas Death Row

http://www.documentaryphotographs.com/death00.htm

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E: Texas Prison Health Care

'Deadly inadequacies' plague inmate wards Gaps in evaluating care let some mistakes go unnoticed

First of four parts
By Mike Ward and Bill Bishop
American-Statesman Staff
Sunday, December 16, 2001

BEAUMONT - After prison officials allowed Cadarell Freeman to fester in his jail cell with ulcers eating through his throat and his feet swelling to the size of hiking boots, after yanking Freeman on and off prescriptions so often that he grew resistant to advanced HIV medications and dependent on a wheelchair, after a nurse asked Freeman if he would donate his organs when he died, which, she implied, would be soon, and after prison officials called Freeman's mother at 4 a.m. to say her son "probably wouldn't make it through the morning" - only after all of that did Cadarell Freeman suffer the last-ditch indignity of the Texas prison system.

A bus driver told Freeman that if he wanted out, he'd have to crawl.

This is a story about people you don't like.

They've passed bad checks, stolen cars, robbed banks and worse. They don't eat their salad with the proper fork, and they don't make donations to the United Way. They are in jail, most of them, for doing wrong.

Almost all of the 134,000 people in Texas prisons will be set free one day. Eighty percent of those sent to prison in 2000 will serve less than 10 years. They'll move to Lockhart or Travis Heights, Round Rock or Circle C. They'll come out changed by the time they spent in prison. The question their future neighbors might ask is whether these changes will be for the better or for the worse.

Texas has proved it's good at building prisons. The state is less successful at caring for the people it puts in these new lockups. Some convicts come out of the state's 105 prisons sicker than they went in. Too frequently, they take strains of drug-resistant HIV into what inmates call the free world.

How bad is health care in Texas prisons? It's better than it once was, good enough that the federal courts found that medical care in Texas prisons was no longer "deliberately indifferent" to inmates' medical needs.

Still, a federal judge wrote in 1999 that he had heard evidence of "significant, even deadly, inadequacies" in the medicine practiced on inmates. Prisoners have been left to die in their cells. They've starved in infirmaries, languished in their own feces before dying. Care in the prisons is so bad, inmates say, that they join experimental drug trials at a university hospital in Galveston to avoid the care offered in jailhouse infirmaries.

It's impossible to know whether these instances of poor care are exceptional or common. The state has made it that way. The Texas Legislature in 1993 created a little kingdom in the prisons.

Instead of providing care itself, the prison system ceded that job to the University of Texas Medical Branch in Galveston and Texas Tech University in Lubbock. It has become a $297 million-a-year business, paid for with public money but immune from any meaningful public scrutiny - a system built for secrecy, if not for care. "Being a prison doctor is an honorable profession, despite what people may think because of the way it has been portrayed in the media - a special bond develops between the medical providers and the patients," said Dr. Ben G. Raimer, a vice president at UTMB. "As with any large system, you can find some problems. But they have not been malicious, and not because people did not care. . . . There have been some bumps along the way, but we have an excellent system that is continuing to improve."

Cadarell Freeman was to leave prison in September 2000. He had walked into prison, but now he was deathly sick. He had lost 60 pounds. The inmate's legs were so weak that he slumped in a wheelchair at the Stiles Unit near Beaumont as he waited for the bus that would ferry him to Huntsville and his freedom.

The vehicle came. From his chair, Freeman eyed the steps into the bus. The driver told Freeman that if he wanted out, he could crawl.

A nurse eventually helped the dispirited inmate onto the bus. The next day, a guard pushed him through the front door of the prison in Huntsville, where Freeman's mother was waiting. He was free.

Luckily, his mother brought a wheelchair. The state kept the one Freeman had been issued by the prison's medical system.

* * *

Lester Allen was a cross-dressing bank robber in Houston who bedeviled police with his array of high-fashion Escada outfits and getaways ingeniously accomplished on city buses. Police caught the lady bandit in 1991, and the courts sent Allen away for 10 years.

What Allen didn't know when he first entered the Texas prison system, but soon learned, is that no matter what a judge orders, any term in Texas can be a life sentence.

The man who taught Allen this lesson was Harold Fields. Allen knew Fields from Dallas, where both had lived. They met again at the Ramsey Unit in Brazoria County, one of Texas' oldest prisons.

"I watched Harold die slowly," Allen recalled recently. "If you're positive with HIV or AIDS and you can't get the treatment you know you need, you can't get help, you can't get anyone to care, you feel like you're hanging on at the end of a rope, and after a while your hands get tired and you just let go."

Before 1993, the prison system hired its own doctors, bought its own medicine and ran its own clinics. The Legislature took that job away from the prison system and gave it to the University of Texas Medical Branch in Galveston and Texas Tech. The reasons were to save money and to appease a federal court judge.

UTMB provides care in the eastern portion of the state, where 80 percent of the inmates are housed; Texas Tech works with the mostly newer prisons to the west. The new system saves money. But there are few public checks on the quality of care the universities provide - and, until recently, no penalties if the universities practice poor medicine.

Four hundred fourteen people died of natural causes last year inTexas prisons. UTMB or Texas Tech doctors review the medical chartsfor each dead inmate and rate the care as proper or improper.

Chart reviews are one way to monitor the quality of medical care. Florida publishes the results of chart reviews on the Internet as one public accounting of health care in its prisons.

In Texas, the state's chart reviews of deceased inmates are secret by law - but events in 1996 were an exception.

Prisoners at the Stiles Unit that year began filing large numbers of complaints about medical care at the facility. Many of the system's sickest inmates were housed at Stiles. Prison system doctors, relegated by then to administrative functions, took notice and began an emergency audit of the medical charts of the inmates who had died that year. The doctors reviewed 24 charts and concluded that 16 dead inmates had received improper care.

One was Lester Allen's friend, Harold Fields, who had been transferred from Ramsey to Stiles a few days before he died.

Another was Alexander Oris, who "starved to death in infirmary,"according to the Texas Department of Criminal Justice's internal review.

Michael Anderson vomited for three days and had no bowel movements for six days before he died and "appeared to have been neglected in his cell."

Another man died a few days after he had been found covered in feces. Another was "left to die." Another "appears to have suffered from neglect."

UTMB reacted to the Stiles audit. The university shifted people to other units or jobs. Doctors were dispatched from Galveston to provide "minifellowships" and "retraining" for Stiles medical personnel, according to testimony from a university health care official.

The Legislature took no public notice of the Stiles study, nor did the committee of prison system and university officials given the job of overseeing prison health. When reporters asked about the report, however, UTMB officials said the system had been much improved.

But had it?

In 1998 an attorney representing Texas convicts in a long-running federal lawsuit over prison conditions hired corrections system doctors from other states to conduct another review of prison deaths.

In the 1998 study, these doctors came to conclusions strikingly similar to those in the prison system's own study two years earlier at Stiles.

They examined 59 deaths from across the state and found that 20 of the inmates received poor or very poor care. Sixteen of those 20 deaths were either "preventable" or "possibly preventable."

Ophelia Rangel was left "lying in feces, menstrual fluid and urine" until she died of "severe dehydration," the doctors concluded.

Robert Lee Brown died of a stroke and a heart attack after prison health officials ordered medicine to treat hypertension that caused a "precipitous lowering of blood pressure." The federal Food and Drug Administration had warned against this method of treating hypertension in 1985.

Three weeks before Arthur Hines died of heart failure, his medical chart said he "appears in good health." The prisoner repeatedly had complained of chest pains and shortness of breath, but he received "no particular treatment" in the weeks preceding his death, doctors hired in the court case testified.

In court, the state disputed those conclusions by finding fault with the way the study was conducted. Dr. David Smith, a Texas Tech official and then-chairman of the committee in charge of prison health care, testified that the studies were "not recognized as an effective way of analyzing data." He also revealed that in the case of Rangel, a physician and two nurses were fired.

Dr. Jason Calhoun, who headed UTMB's prison medicine program, responded to the '98 study in court documents, saying the university had improved its care.

"Although hindsight will always identify specific cases where different treatment could have produced a different outcome," Calhoun said, "UTMB has made significant progress since 1994 in areas of access to care, evaluation and treatment at the unit level."

If these accounts of prison health care are harsh, they are mild compared with the way things were a generation ago.

In the 1970s, convicts acted as doctors. They pulled teeth, stitched lacerations and dished out pills. In 1974, Texas employed just one doctor for 40,000 prisoners in a brutal and unconstitutional system of health care largely run by prisoners.

By this year, prison medical care was much different and much better. The federal courts in the long-running case named for inmate David Ruiz found that the prison system's medical care was constitutional. Credit for these improvements was given to UTMB and Texas Tech.

Even so, U.S. District Judge William Wayne Justice warned that although prison health care in Texas may now be legal, it is still inadequate and "subpar." "As the law stands today," Justice wrote in 1999, "the standards permit inhumane treatment of inmates."

Cadarell Freeman and Lester Allen would agree.

To gain a sure handle on the quality of care in Texas prisons is impossible. Records are not kept or are kept secret. The Legislature has prevented even prison authorities from fully monitoring the quality of care the universities provide.

Prison officials boast that the clinics in each of the state's 105 prisons are inspected and licensed by national prison health-care agencies. But even prison system doctors question whether these inspections adequately measure the quality of medical care.

After all, in 1996, when two-thirds of the men who died at the Stiles Unit had "improper" care, according to the state audit, the prison clinic earned passing grades from a national accrediting organization. Moreover, even these accreditation reports are kept secret under state law .

The details that can be discovered about prison health care are blips on a radar screen, tracks in the snow. That's all there is, because Texas has gradually developed a prison health-care system that is largely impenetrable - not only to those outside the system, but to prison officials as well.

When information does emerge from this largely closed system, however, it often is disturbing:

* The Texas Department of Health closed a prison dialysis unit in 1997 after finding "serious deficiencies," according to a state auditor's report. Even after the unit was reopened, prisoners needing dialysis treatment in 1998 would find chairs still bloody from earlier patients.

* A 2000 study by two doctors at the University of Texas at San Antonio found that women and black inmates were prescribed more advanced, and more expensive, anti-psychotic drugs "less frequently than whites, implying that there may be bias in prescribing patterns in (Texas Department of Criminal Justice) Mental Health Services," according to a TDCJ analysis.

* A 1997 study by UTMB pharmacists found that prison doctors treating diabetes "generally do not follow the guideline recommendations, and clinical markers were not improved."

* As recently as March of this year, half of the prisoners discharged from clinics and prison hospitals had incomplete documentation, and one in every 10 required "emergency, acute care or readmission following discharge," according to a prison system report.

Convicts and prison employees complain of the same inadequacies: the poor care given at the units, as opposed to the excellent care they found at university hospitals; the messy dialysis units; the tendency of doctors at prison units to cancel or ignore orders issued by hospital specialists; the mix-ups in prescriptions; the checkups given seemingly without care or interest.

They also say, uniformly, that the two universities providing care have dramatically different results. Convicts well-traveled among Texas prisons say health care is better at West Texas units serviced by Texas Tech. That was also the conclusion reached by lawyers and doctors representing inmates in the federal Ruiz case.

"It was our belief based on the evidence that the most serious problems seemed to occur in the UTMB units as opposed to the Texas Tech units," said Donna Brorby, the San Francisco-based attorney who hired doctors to review the quality of medical care in Texas prisons. "We all agreed that Texas Tech did a better job."

Dr. John Robertson reviewed the medical charts of a sample of inmates who had died in Texas prisons. He agreed that "Texas Tech seemed to have less of a problem." Robertson, who is the medical director for the Alaska prison system, said recently that "based on our studies, I think the oversight and quality of care was better at Texas Tech than that provided by UTMB."

Because there is no independent agency monitoring the care given to Texas inmates, the universities are left to decide for themselves what care is proper. When prison system doctors found that two-thirds of the inmates who died at Stiles had received improper care, UTMB doctors reviewed each medical chart - and they arrived at starkly different findings.

Prison system doctors concluded that Paul McGhee had been "essentially left to die in the infirmary." A team of UTMB doctors looked at the same chart and wrote, "There does not seem to be any problem in the care of this patient."

Alexander Oris "starved to death in infirmary," prison system doctors wrote. UTMB found "no lapse of care."

Jimmy Jones "received very little care at Stiles" and "appears to have suffered from neglect," according to the prison doctors. UTMB found "no lapse in the standard of care given this patient."

Raimer, of UTMB, said this difference of opinion is sometimes inevitable. "You can sit three doctors down together and have them review a case and get three different opinions on what should have happened," Raimer said. "The diagnosis can be correct, the medication can be correct, the treatment can be correct and still you can have an outcome that you didn't want or didn't expect. That's medicine."

Where prison system doctors found 16 cases of improper care, UTMB doctors had questions about seven, and labeled none as improper care.

* * *

Lester Allen had gradually morphed from a college student to thebandit caught in a wig, black stockings and pumps after he robbed a Texas Commerce Bank on Houston's Main Street. In the steel halls of Texas' prisons, he changed again.

In 1995, Allen recalled, "I went to Stiles. I talked to the chaplain there and started working in the hospice program. I felt it was something I was called to do.

"It changed my life - not the sentence, but what happened while I was in there. I saw lots of people dying, lots of people who were very sick, lots of people who needed help but weren't getting any. It was a horrible place.

"I cared for people who were dying and who almost no one cared about. I saw the stages of my eventual death. It changed my outlook on life. I made my amends to God and myself."

At Stiles, Allen was known as an angel of mercy. As a hospice aide, he smuggled medication and food to sick prisoners. He brought them blankets in winter and ice in July, in defiance of guards' orders. Allen forged "hall passes" so that he could continue his work when he would otherwise be confined to his cell.

Lester Allen tried to give the care and the hope he was unable to provide his friend Harold Fields.

"At Stiles," prison system doctors wrote in 1996, "(Fields) was not assessed and managed properly although fevers, nausea, vomiting, weight loss and weakness were documented."

UTMB doctors reviewed Fields' chart and wrote: "Standard of care met."

* * *

Bedsores ripened on Cadarell Freeman's backside. He contracted infections, fevers and diarrhea. An ulcer erupted in his throat that made it impossible to eat. His stomach churned.

When Freeman stayed on the drugs prescribed by doctors at UTMB's prison hospital in Galveston, he gained weight, got better. But a prescription in the Texas prison system is often just a piece of paper. Sometimes, Freeman said, the sacks of medicine he brought from Galveston were confiscated and not returned. Some weeks, according to Freeman's files, the inmate received only three of the 15 drugs he was supposed to be taking. For days at a time he would receive no medication at all.

A note written on Freeman's chart while the inmate was at the hospital in Galveston said the inmate was so "frustrated at his inability to get meds as prescribed that he is threatening to commit suicide to get to new unit."

A doctor from the Galveston hospital wrote in December 1997 that Freeman "has had unacceptable lapses" in therapy, but that the inmate had been convinced "to continue to take meds despite obstacles at unit level."

An internal prison system report in 1999 found there were "multiple dosing errors on virtually every medication order" Freeman received. When Freeman complained, the report said, prison unit health-care workers "tended to roll their eyes and sigh at the mention of the offender's name."

On drugs and then off again, Freeman began to have seizures; he was confined first to a wheelchair and then to his bunk. He lay watching as his disturbed cellmate plucked blades from safety razors, taped the metal strips to his fingers and, with bloodied hands, dubbed himself horror-flick villain Freddy Krueger.

In his diary, Freeman wrote on March 20, 1999: "This can't be a medical facility. This is a death camp. I hurt so bad."

The same internal prison system report on Freeman's case stated, "There is further room for concern when treatment is given or withheld by a provider without actively putting hands, or even eyes, on the patient."

In November that same year, guards found Freeman collapsed in his cell. He was rushed by ambulance to Galveston. Soon, a nurse asked if Freeman would donate his brain and other organs for scientific research. Freeman's mother received a call saying her son was near death.

After several weeks of care in Galveston, Freeman was taken back to Stiles. For a short while his health improved.

Then his drugs were withheld again. His health worsened. Freeman's pain bred hyperbole. In his diary he wrote, "I wonder did the Jews Hitler punished suffer this bad?"

Freeman's question is easy to answer. There is no holocaust in the Texas prison system.

There is, however, a paradox.

Freeman received some of the best health care in the world, and some of the worst. There were prison system workers who took up Freeman's case with a dogged, free-world ferocity - and there were the medical personnel who wouldn't lay hands on the sick inmate, or even look at him.

For Cadarell Freeman, however, the bad overtook the good. He left prison and took with him into the free world limp legs, a check for $50 and a resistance to several HIV drugs.

You may contact Mike Ward at mward@statesman.com or (512) 445-1712 and Bill Bishop at bbishop@statesman.com or (512) 445-3634.

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F: Execution of Juvenile Offenders

Almost two-thirds of the current-era executions of juvenile offenders occurred in Texas, with no other United States’ jurisdiction or other country in the world actively involved in this practice.

Listen to http://www.npr.org/templates/story/story.php?storyId=4105217

Talk of the Nation, October 12, 2004 · The United States is one of just a few countries in which teenage murderers can face the death penalty. This week, the Supreme Court hears arguments that could change that. We discuss the age limit on capital punishment.

Peter Rubin, law professor at Georgetown University

Jeffrey Fagan, professor, Department of Sociomedical Sciences, School of Public Health, Columbia University. Author of new study on changing standards for the juvenile death penalty.

Dr. Jay Giedd, chief of Brain Imaging in the Child Psychiatry Branch of the National Institute of Mental Health

Juveniles Executed by the State of Texas

Name Execution Race & Sex- Offender/Victim Age at crime Age at Execution
Charles Rumbaugh 09-11-1985 WM/WM 17 28
Jay Pinkerton 05-15-1986 WM/WF, WF 17 24
Johnny Garrett 02-11-1992 WM/WF 17 28
Curtis Harris 07-01-1993 BM/WM 17 31
Ruben Cantu 08-24-1993 LM/LM 17 26
Joseph John Cannon 04-22-1998 WM/WF 17 38
Robert A. Carter 05-18-1998 BM/LF 17 34
Glen C. McGinnis 01-25-2000 BM/WF 17 27
Gary L. Graham 06-22-2000 BM/WM 17 36
Gerald L. Mitchell 10-22-2001 BM/WM 17 33
Napolean Beazley 05-28-2002 BM/WM 17 25
TJ Jones 08-08-2002 BM/WM 17 25
Toronto Patterson 08-28-2002 BM/BF 17 24

Extensive Juvenile Executions Information available at: http://www.law.onu.edu/faculty/streib/documents/juvdeath.pdf

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G: Incarceration and Crime Trends in Texas

Center on Juvenile and Criminal Justice: Texas Tough?: An Analysis of Incarceration and Crime Trends in The Lone Star State http://www.cjcj.org/pubs/texas/texas.html

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H: Capital Punishment: Cruel and Unusual?

Texas watching lethal injection challenges
Austin American-Statesman February 25, 2006

State officials plan no policy shifts after doubts cast on same method used in other states.

By postponing a killer's execution this week, California became the 2nd state in as many months to pause over the issue of whether lethal injection is a painless passing or whether it masks a painful and potentially unconstitutional death.

The legal debate is expected to heat up in coming months as California and Florida examine their execution procedures while the U.S. Supreme Court considers whether to take up the issue.

Meanwhile, officials in Texas, the state with the nation's busiest death chamber, say they have no plans to change a thing.

"We're watching the situation, but there has not yet been any court ruling that has impacted Texas," said Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, which has executed four convicts this year and has an additional 15 queued up for lethal injection into June.

In all, almost 850 people - including 359 in Texas - have been executed across the United States since the death penalty was reinstated 3 decades ago.

The latest debate intensified when a California federal judge ordered the state's 3-drug execution procedure modified because of concerns that it might cause a painful death, which could be considered cruel and unusual punishment, something that is prohibited by the U.S. Constitution. Texas uses the same 3-drug method: a sedative, a muscle relaxant and a heart-stopper.

California opted to use a lethal dose of a barbiturate but then stopped Michael Morales' execution when anesthesiologists refused to participate because of ethical issues.

Death penalty foes have cheered the development, insisting that it is a first step to getting the issue before the U.S. Supreme Court.

In recent months, the high court halted two executions in Florida over the question of whether death-row convicts can lodge 11th-hour appeals on whether lethal injection is cruel and unusual. Based on that, Florida Gov. Jeb Bush earlier this month announced that he will not sign any more execution warrants until the pending legal questions are resolved.

Although death penalty advocates generally have branded the development as just another in a long string of challenges that will fail, some legal scholars and supporters say the challenges could succeed.

The reason: Oklahoma was the 1st state to adopt the lethal injection protocol in 1977, and Texas and most other states copied it "without much scientific backup for what they were adopting," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in California, an organization that has defended capital punishment in several major cases.

"It may be that an amended protocol is adopted and upheld," Scheidegger said.

Death penalty opponents make much the same argument, citing a recent article in the British medical journal The Lancet saying that lethal injection, instead of being painless, may cause unnecessary suffering because enough anesthesia is not used.

Even before the Florida and California rulings, the issue had surfaced in Texas cases.

When Corpus Christi killer Jeff Doughtie, 39, was executed in August 2001, his last words were that he felt a burning sensation. Other convicts have unsuccessfully challenged the method of lethal injection in recent months in their final appeals, officials said.

Like other opponents, Dave Atwood, a founder of the Texas Coalition to Abolish the Death Penalty, said he was surprised by the California ruling after so many years of courts rejecting such challenges.

"I don't see that happening in Texas," he said, "because most of the judges would not rule that way."

Even so, Atwood said, the recent developments almost certainly will figure in the appeals of condemned convicts who face execution in coming months.

"They'll all be trying it," he said. "But I don't see anything changing unless the (U.S.) Supreme Court agrees."

Source: Austin American-Statesman
Execution objections on the rise

Associated Press February 26, 2006

The claim sounds straight out of a horror novel: A man, completely paralyzed but fully conscious, endures a searing pain throughout his body and suffocates because he can't take a breath.

To a dozen or so onlookers, he appears serene, asleep. They remain oblivious to his agony as he dies.

Thats the issue at the heart of a lawsuit in California that halted the execution of killer and rapist Michael Morales this week. It's the crux of similar lawsuits in North Carolina and 13 other states.

Lawyers contend that the lethal injection techniques in 37 of the 38 states with capital punishment, contrary to expectations and all outward appearances, give the condemned a torturous death. This, they say, violates the U.S. Constitutions ban on cruel and unusual punishment.

In the fight over capital punishment, "This seems to be the new front, which is attack the death penalty on the execution front," said Robeson County District Attorney Johnson Britt. Britt favors capital punishment.

"Every lawyer worth his salt is putting in a lethal injection challenge," said Richard Dieter, executive director of the Death Penalty Information Center. The center opposes capital punishment.

3 drugs are used in lethal injection executions. The 1st is sodium pentothal, a barbiturate. It puts the inmate to sleep.

The 2nd drug is pancuronium bromide, also called Pavulon. This paralyzes the inmate.

The final drug is potassium chloride. This drug is supposed to stop the heart.

The method is supposed to kill the inmate quickly and painlessly.

The system doesnt work as advertised, Jim Exum says in a federal lawsuit in North Carolina. Exum is a former chief justice of the N.C. Supreme Court. His lawsuit, on behalf of condemned inmates George Franklin Page and Kenneth Bernard Rouse, contends that the first drug, the sodium pentothal, wears off quickly, allowing the inmate to wake up.

At that point in the execution, the lawsuit says in its claims and in an affidavit from a doctor, the inmate is awake but unable to move because he has been paralyzed by the second drug.

The suit says the second drug stops him from drawing any breath because he cant get his respiratory muscles to respond.

Suffocation death

The lawsuit says that the 3rd drug, the potassium chloride, reacts with the nerve endings in the inmates veins and causes a burning as it spreads throughout his body. The suit contends that when administered intravenously, the drug is strong enough to stop the inmate from breathing but not strong enough to stop his heart.

The suit says the inmate dies of suffocation.

The process "can indeed be very painful and very terrifying," Exum said.

An affidavit for the state by a physician, Mark Dershwitz, disagrees with Exum's contention.

He says if the inmate woke up during the process there would be time, before he became totally paralyzed, to cry out or complain if he were suffering.

Based on the high dosage of the 1st drug, "There exists no more than a miniscule probability that the person could be conscious" during the execution, Dershwitz said.

Britt, the Robeson County prosecutor, watched the execution of murderer Henry Lee Hunt in 2003.

He doesn't think there was any pain for Hunt.

"The appearance was he just fell asleep," Britt said. "To me it appears that it was a very peaceful process. There was no grimacing of the face, no jerk, no convulsion-like movement. Nothing to indicate that there was any pain."

Exum said that after his suit was filed in 2004, North Carolina doubled the dosage of the drug that knocks the inmate out.

A federal judge in California responded to the issue by ordering in the Morales case that a doctor monitor whether the inmate needs more of the barbiturate to remain unconscious. Doctors refused to take part, citing their medical oaths not to harm a patient.
The judge said the state could kill the inmate with just an overdose of the barbiturate. But he also required medical professionals to take part. This method would have made the execution take 30 minutes or more, at least twice as long as the 3-drug method. And again, no medical personnel would take part.

The issue could surface in North Carolina next month.

Patrick Moody is scheduled to die March 17 for the 1994 murder of Donnie Robbins in Davidson County.

Lines are to be inserted into each of Moody's arms by technicians and the drugs administered by people hidden by curtains.

One of his lawyers, Charlotte Blake, said she is more optimistic now that judges are paying attention to health issues.

"There's a renewed vigor," she said.

Source: Associated Press

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I: TCADP Death Penalty Fact Sheet www.tcadp/org/contents/TXDPFactSheet.pdf

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J: TCADP Newsletters http://tcadp.org/archive.php

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K: 152 People Killed by Gov. George Bush

1995 1996 1997 1998 1999 2000

Clifton Russell
Willie Ray Williams
Jeffrey Motley
Billy Conn Gardner
Samuel Hawkins
Noble Mays
Fletcher T. Mann
Ronald Allridge
John Fearance Jr.
Karl Hammond
Vernon Satterwhite
Carl Johnson Jr.
Harold Joe Lane
Bernard Amos
Hai Hai Vuong
Esequel Banda
James Briddle

Leo Jenkins
Ken Granviel
Joe Gonzales

Richard Brimage Jr.
John Barefield
David Lee Herman
David Spence
Billy Woods
Kenneth Gentry
Benjamin Boyle
Ernest Orville Baldree
Terry Washington
Anthony Ray Westley
Clifton Belyeu
Richard Drinkard
Clarence Lackey
Bruce Callins
Larry Wayne White
Robert Madden
Patrick Roberts
Kenneth Harris
Davis Losada
Dorsie Johnson
Earl Behringer
David Stoker
Eddie James Johnson
Irineo Montoya
Robert West Jr.
James C. Lee Davis
Jessel Turner
Benjamin Stone
John Cockrum
Dwight Adanandus
Ricky Lee Green
Kenneth Ransom
Aua Lauti
Aaron Lee Fuller
Michael Sharp
Charlie Lee Livingston
Michael Lockhart

Karla Faye Tucker
Steven Renfro
Jerry Lee Hogue
Joseph Cannon
Lesley Gosch
Frank McFarland
Robert A. Carter
Pedro Cruz Muniz
Clifford Boggs
Johnny Pyles
Leopoldo Narvaiz
Genaro Ruiz Camacho
Delbert Teague
David Castillo
Javier Cruz
Jonathan Nobles
Kenneth McDuff
Daniel Lee Corwin
Jeff Emery
James Meanes

John Glenn Moody
Troy Farris
Martin Vega
Jorge Cordova
Danny Lee Barber
Andrew Cantu
Norman Green
Charles Rector
Robert Excell White
Aaron C. Foust
Jose De La Cruz
Clydell Coleman
William Little
Joseph Stanley Faulder
Charles Daniel Tuttle
Tyrone Fuller
Ricky Blackmon
Charles Anthony Boyd
kenneth Dunn
James Earhart
Joe Trevino
Raymond J. Jones
Willis Barnes
William Price Davis
Richard Wayne Smith
Alvin Wayne Crane
Jerry McFadden
Domingo Cantu
Desmond Jennings
John Michael Lamb
Jose Gutierrez
David Long
James Beathard
Robert Atworth
Sammie Felder Jr.

Earl Heiselbetz, Jr.
Spencer Goodman
David Hicks
Larry Robison
Billy Hughes, Jr.
Glen McGinnis
James Moreland
Cornelius Goss
Betty Lou Beets
Odell Barnes Jr.
Ponchai Wilkerson
Timothy Gribble
Tom R. Jackson

William Kitchens
Michael McBride
James Richardson
Richard Foster
James Clayton
Robert Carter
Thomas Mason
John Burks
Paul Nuncio
Gary Graham
Jessy San Miguel
Orien Joiner
Juan Soria
Brian Roberson
Oliver Cruz
John Satterwhite
Richard Jones
David Gibbs
Jeff Caldwell
Ricky McGinn
Jeffrey Dillingham
Miguel Flores
Stacey Lawton
Garry Miller
Daniel Hittle
Claude Jones

Dec. 7, 2000
EXECUTIONS UNDER Gov. RICK PERRY

2001----17
2002----33
2003----24
2004----23
2005----19

Total---116 executions

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L: Mental Illness

Amnesty International Report on Mental Illness and the American Death Penalty

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M: TCADP Petitions

Abolition Petition Abolition Petition-Non Texan

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N: In the News...

Subject: Local community leader speaks out against the death penalty

Sunday, April 9th Letter to Editor, Corpus Christi Caller-Times
False solution

Texas has already carried out seven executions this year. Twelve more are planned through early August, making Texas the number one killing state in the Western Hemisphere.

Of these 19 executions, 17 are of black or Hispanic prisoners, showing how racist the Texas death penalty system is.

Texas politicians who support the death penalty often defend their position by saying that the death penalty is necessary for the "protection of society." Executions may satisfy cravings for vengeance, but they do not protect society. Study after study shows that the death penalty does not deter violent crime.

If politicians truly want to be tough on violent crime, they will acknowledge the overwhelming number of death row prisoners who have a very low IQ, who are mentally ill, who are addicted to drugs, or who were abused and ne- glected as children.

If politicians truly want to be tough on violent crime, they will acknowledge that mental health, family services and drug and alcohol rehabilitation programs are woefully inadequate, with overwhelming case loads, under-funded and under-staffed.

The death penalty is a false solution, and politicians know it.

JEANNE ADAMS

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2006 TCADP.org Page design by Anthelia Designs

The opinion (dissenting) by O'Neill provides that she notices when "defendant’s due process rights have not been violated.”

2007-02-04T03:04:00.000-08:00

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IN THE SUPREME COURT OF TEXAS

════════════

No. 04-0961

════════════

Tony Gullo Motors I, L.P. and Brien Garcia , Petitioners,

v.

Nury Chapa, Respondent

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

On Petition for Review from the

Court of Appeals for the Ninth District of Texas

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

Argued October 19, 2005

Justice O’Neill, dissenting.

Nury Chapa’s allegations describe what amounts to a bait-and-switch by Gullo Motors, a claim the jury and this Court agree there is evidence to support. The evidence shows that, in furtherance of that scheme, Chapa was threatened, lied to, and her signature and that of her deceased husband were forged. The defendant’s conduct in this case was at best reprehensible, and bordered on criminal, prompting the jury to award $250,000 in exemplary damages. Texas law capped that award at $200,000, and the court of appeals further reduced it by remittitur to $125,000. Even though the remitted award is well below the statutory ceiling that the Legislature set, the Court today decides the appeals court award is exorbitant and cannot stand. I do not agree that the court of appeals violated constitutional exorbitancy standards by suggesting the remittitur that it did, nor do I agree with the Court’s advisory determination of the attorney’s fee issue. Accordingly, I respectfully dissent.

I. Background

The evidence supporting the verdict in this case demonstrates that Chapa purchased a Toyota Highlander Limited from Gullo Motors, but Gullo Motors tried to make her accept instead a less expensive Toyota Highlander. According to Chapa, she offered her salesman, Brien Garcia, $30,000 for the Highlander Limited on the showroom floor, with the added options of a TV/VCR and Michelin tires. After consulting with management, Garcia responded that the showroom car had been sold but he could get her one for $207.38 more. Chapa agreed, but when she returned to sign the contract it only indicated she was buying a “2002 Toyota.” Chapa wrote “Limited,” “Michelin tires,” “TV” and “VCR” on the contract and then signed it. She was told more signatures were needed and a copy would be mailed to her. Chapa never received the contract.

After sending in her $30,207.38 payment, Chapa received a call informing her that the vehicle had arrived. Chapa went to pick it up, but Garcia presented her with a Highlander, not a Highlander Limited. When Chapa refused to take it, Garcia acknowledged that she had purchased a Highlander Limited and assured her she would get one.

Again, a sales representative called Chapa to say her car was ready, and again a Highlander, not a Highlander Limited, was presented to her. Chapa complained, but Gullo told her the Highlander she was taking had a V-6 engine just like the Limited; in addition, Gullo promised to add the other features from the Limited, plus the Michelin tires, and assured her the modifications would be complete in two days. Chapa agreed to take delivery of the Highlander, but insisted Gullo Motors write these promises on her new delivery check sheet, which she then signed. Garcia wrote her a “We Owe” form, which stated Gullo owed her Michelin tires and lumbar seats. He did not include the other items, so Chapa listed them on the delivery check sheet; she testified Garcia told her that was enough.

When Gullo Motors failed to install the promised items, Chapa went to the dealership to speak with Brian Debiski, the sales manager. Debiski told Chapa she was “crazy, that [she] didn’t buy that [Limited].” Chapa explained that she had a “We Owe” form, but Debiski responded, “[Y]ou have nothing. You are a nobody. It’s your word against me.” When Chapa told him she would inform the media, Debiski responded that “nobody will dare to go against me, against us,” and informed Chapa that he would show her by having her car towed away at her expense.

Later, when Chapa’s attorney informed the dealership that Chapa would like to return the car for a refund, Gullo refused, claiming the Highlander had already been titled to Chapa (even though it had not) and explaining that it would thus have to sell the car as used. Gullo produced a New Vehicle Delivery Check Sheet showing Chapa had accepted delivery of the Highlander without complaint. However, Chapa testified that Gullo forged her deceased husband’s signature on the delivery check sheet by using documents her late husband, Ernesto Chapa, had signed when they had previously bought a car from Gullo. Chapa also claimed that Gullo forged her deceased husband’s signature on the “We Owe” form. Chapa testified that numerous other documents were forged, and there was evidence that Garcia admitted to Gullo he had promised Chapa the features listed on the “We Owe” form.

The jury found Chapa’s evidence credible and awarded her $7,213 for breach of contract (the difference in value between the vehicle promised and the one delivered), $7,213 for fraud, $21,639 for mental anguish, $250,000 for exemplary damages, $7,213 for damages under the Texas Deceptive Trade Practices Act, and $20,000 for attorney’s fees. The trial court rendered judgment only on the breach of contract claim, but the court of appeals reversed and reinstated all the awards except for exemplary damages, which the court remitted to $125,000, one-half of what the jury awarded.

I agree with the Court that Chapa must elect only one liability theory upon which to recover, and the court of appeals erred to the extent it concluded otherwise. But I disagree that the court of appeals’ remittitur is constitutionally infirm or that Chapa’s attorney’s fees are capable of segregation.

II. Exemplary Damages

In Texas, the amount of exemplary damages for which a defendant may be liable is capped at

an amount equal to the greater of:

(1) (A) two times the amount of economic damages; plus

(B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or

(2) $200,000.

Tex. Civ. Prac. & Rem. Code § 41.008(b) (emphasis added). I agree with the Court that the mere existence of a statutory cap does not foreclose a federal constitutional check for exorbitancy. But the United States Supreme Court has instructed that reviewing courts should accord “substantial deference” to legislative judgments concerning appropriate sanctions. BMW of N. Am. v. Gore, 517 U.S. 559, 583 (1996). “[A] punitive damages award that comports with a statutory cap provides strong evidence that a defendant’s due process rights have not been violated.” Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 65 (1st Cir. 2005) (citing Romano v. U-Haul Int’l, 233 F.3d 655, 673 (1st Cir. 2000)). The award the Court finds excessive today is well below the statutory cap that the Legislature determined appropriate when a defendant engages in conduct that would support an exemplary damages award. Neither does the award violate the three-part test for constitutional exorbitancy that the United States Supreme Court has articulated. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418-19 (2003).

Courts must consider three guideposts when reviewing an exemplary damage award: (1) the degree of reprehensibility of the misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil or criminal penalties that could be imposed for comparable misconduct. Id.; Gore, 517 U.S. at 575. According to the Supreme Court, it is “the degree of reprehensibility of the defendant’s conduct” that is “[t]he most important indicium of the reasonableness of a punitive damages award,” and five factors guide that assessment: (1) whether the harm caused was physical rather than economic, (2) whether the conduct evinced an indifference to others’ health or safety, (3) whether the harm involved repeated acts or isolated incidents, (4) whether the target of the conduct was financially vulnerable, and (5) whether the harm resulted from mere accident or from “intentional malice, trickery, or deceit . . . .” Campbell, 538 U.S. at 419.

The Court summarily concludes that only the last of these factors, deceitful conduct, favors Chapa. And the Court gives that conduct very cursory attention, even though the Supreme Court has said that the “infliction of economic injury, especially when done intentionally through affirmative acts of misconduct . . . can warrant a substantial penalty.” Gore, 517 U.S. at 576 (citing TXO Prod. Corp. v. Alliance Res. Corp. 509 U.S. 443, 453 (1993)). Assuming Chapa elected to recover on the jury’s fraud finding, she would be entitled to $28,852 in compensatory damages. Thus, the penalty the court of appeals determined to be appropriate reflects a ratio between compensatory and exemplary damages of a little more than 4 to 1, a differential the petitioners have not demonstrated is constitutionally disproportionate to the defendant’s conduct here. See TXO Prod. Corp., 509 U.S. at 462 (holding a 10 to 1 ratio permissible); Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19 (1991) (affirming award of four times compensatory damages and two hundred times economic damages); Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1095-96 (5th Cir. 1991) (upholding a 20 to 1 ratio).

As for the other reprehensibility factors, the Court either misapplies them or gives them short shrift. For example, the Court’s conclusion that Gullo’s actions caused Chapa only economic harm ignores the jury’s award of mental anguish damages, a damage element we have long considered non-economic that compensates for harm with physical elements. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 763 (Tex. 2003). The Court also concludes Gullo Motors’ misconduct was an isolated incident that did not involve repeated acts, even though the evidence indicates otherwise. Gullo Motors committed multiple acts of misconduct, including switching contracts, altering documents, engaging in deceptive and threatening behavior, and even forging the signatures of Chapa and her deceased husband. In sum, the factors that the Court purports to follow in determining the reprehensibility of Gullo Motors’ conduct weigh in favor of the court of appeals’ remitted award, not against it.

The second guidepost used to review an exemplary damage award examines the ratio between exemplary and compensatory damages. The Supreme Court has refused to adopt a bright-line constitutionally prohibited ratio. Instead, it has suggested a range beyond which exemplary damage awards will likely become constitutionally exorbitant, stating “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” Campbell, 538 U.S. at 419. The Court’s opinion in this case highlights a 17 to 1 ratio that reflects a comparison between the remitted award and economic damages. The constitutionally relevant comparison, though, focuses on compensatory rather than economic damages, which yields a much lower 4.33 to 1 ratio.

The third guidepost considers civil or criminal penalties that could be imposed for comparable misconduct. Campbell, 538 U.S. at 48; Gore, 517 U.S. at 575. The Court considers two potential civil penalties of $10,000 and $20,000 that Gullo Motors’ conduct might subject it to, yet declines to consider potentially applicable criminal penalties that, according to Chapa, would result in jail time and $80,000 in felony fines for forgery, document destruction, and fraudulently inducing signatures. Certainly I agree that “the remote possibility of a criminal sanction does not automatically sustain a punitive damages award,” as the Court recites, but that doesn’t mean comparable potential criminal sanctions should be altogether ignored. Campbell, 538 U.S. at 428.

In my view the more important issue is not the actual dollar amount that Chapa will ultimately recover, but the low threshold this Court steps over to declare a jury award constitutionally exorbitant. Had I been on the jury in this case, I may well have disagreed with the amount of exemplary damages the jury actually awarded or even the amount the appellate court suggested in its remittitur. Although exemplary damage awards can serve worthwhile purposes, they can also have debilitating economic impact and should be carefully policed by the courts. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994). Our courts of appeals in Texas have long been empowered to suggest a remittitur of excessive awards when the evidence is factually insufficient to support them. Id.; Tex. R. App. P. 46.3. The court of appeals assiduously exercised that power in this case. It is, of course, appropriate for this Court to intervene if the appeals court allows a constitutionally offensive award to stand. But when the Court chooses a marginal case like this in which to intervene, it risks intruding upon an area that has traditionally been the well-patrolled province of our courts of appeals. And when, as here, the Legislature has chosen to set its own parameters for such awards, the Court’s intrusion is even more disturbing.

III. Attorney’s Fees

I also question the Court’s decision to address the attorney’s fee issue in this case. If the court of appeals renders judgment on remand based on the jury’s fraud finding, the attorney’s fee issue will be moot. Thus, the Court’s analysis of the issue is purely advisory. Tex. Const. art. II, § 1; Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex. 2004). But even assuming the Court properly reaches the issue, I disagree with the Court’s application of the rule it announces. According to the Court, when the legal services themselves advance both a recoverable and unrecoverable claim, segregation is not required. The Court concludes that at least some of Chapa’s attorney’s fees are attributable only to claims for which fees are not recoverable, requiring a new trial. It is true that some of Chapa’s attorney’s fees are attributable to her common-law fraud claim for which fees are not recoverable. Attorneys fees are recoverable, though, under the DTPA for deceptive acts or practices. It is unclear to me, and the Court does not explain, how the legal services used to advance Chapa’s DTPA claim did not also advance her common-law fraud claim. The court’s charge that was read to the jury instructed that Gullo Motors violated the DTPA if it (1) breached an express warranty, defined as any affirmation of fact that related to the 2002 Highlander Limited and became part of the basis of its bargain with Chapa, or (2) engaged in any false, misleading, or deceptive act or practice upon which Chapa relied to her detriment. A false, misleading, or deceptive act or practice includes representing that goods or services are of a particular standard, quality, grade, or of a particular style or model, or, failing to disclose information concerning goods which was known at the time of the transaction if such failure to disclose was intended to induce the consumer into a transaction the consumer would not have entered had the information been disclosed. As for the common-law fraud claim, the jury was instructed that Gullo Motors committed fraud if (a) it made a material misrepresentation, (b) the representation was made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, (c) the representation was made with the intention that Chapa would act upon it, and (d) Chapa relied on the misrepresentation and thereby suffered injury. The evidence that Chapa presented to support her fraud claim also supported her DTPA claim, and vice versa. Because the legal services provided to advance the DTPA claim also advanced the fraud claim, the fees incurred cannot be segregated even under the Court’s own analysis.

* * *

For the reasons expressed, I respectfully dissent.

__________________________________________

Harriet O’Neill

Justice

OPINION DELIVERED: December 22, 2006.

Even though the remitted award is well below the statutory ceiling that the Legislature set, the Court today decides the appeals court award is exorb

2007-02-04T02:59:00.000-08:00

Allows unspent 1998 and 1999 CHIP funds to be carried forward to..........

2006-11-24T23:56:00.000-08:00

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Page 1
3-1
Chapter 3
Medicaid History and
Organization
Texas Medicaid operates within a framework established by federal
law, but the state of Texas manages key elements of the program.
Over time, both federal and state changes have affected Medicaid in
Texas. This chapter outlines the history and organization of the
Medicaid program in Texas.
History and Background
Congress established the Medicaid program under Title XIX of the Social
Security Act of 1965. Title XVIII of the Social Security Act of 1965 created
Medicare. Title XIX created the Medicaid program to pay medical bills for low-
income persons who have no other way to pay for care. Medicaid is a federal-
state matching program, in which both the federal and state governments must
contribute a specified percentage of total expenditures. Texas began
participating in the Medicaid program in September 1967.
Medicaid was intended to ensure access to health care for low-income
Americans. However, the expense of the program and the number of Americans
served has grown beyond original expectations. Over the past 39 years,
Congress has transformed Medicaid from a narrowly defined program available
only to persons eligible for cash assistance into a large insurance program with
complex eligibility rules.
During the late 1980s and early 1990s, Congress expanded Medicaid eligibility to
include a greater number of people who are elderly, people with disabilities,
children, and pregnant women. As a result of these changes, the Texas Medicaid
population tripled in just a decade, adding more than 1 million people between
1990 and 1995 alone. In the mid to late 90’s, caseload declined as a result of
stricter eligibility requirements for TANF.
Figure 3.1 illustrates Texas Medicaid enrollment trends by category for 1994
through 2002.
Page 2
3-2
Figure 3.1: Unduplicated Number of Medicaid Beneficiaries
By Eligibility Category: Federal Fiscal Years 1994 - 2002
0
500,000
1,000,000
1,500,000
2,000,000
2,500,000
3,000,000
3,500,000
1994 1995 1996 1997 1998 1999 2000 2001 2002
B
e
nef
i
ci
ari
e
s (
R
eci
p
i
ent
s
)
Total
All Other
TANF - Cash
Assistance Only
Aged
Blind and
Disabled
Source: CMS's MSIS and HCFA 2082 historical reports.
Medicaid’s Early Years:
Linked to Financial Assistance Programs
As originally enacted, Medicaid coverage was available only to persons eligible
for Aid to Families with Dependent Children (AFDC), now referred to as
Temporary Assistance for Needy Families (TANF). TANF is the federal-state
cash assistance program for impoverished families, usually headed by a single
parent. To be able to receive Medicaid, individuals were required to be receiving
cash assistance or welfare. In this sense, Medicaid was “linked” to welfare.
TANF
Individuals who qualify for TANF cash assistance or have incomes below the
TANF income cap automatically qualify for Medicaid. Each state sets its own
income eligibility guidelines for TANF. Texas has historically maintained very low
TANF income caps. As of 2004, the income cap for a parent with two children is
$188 per month. The TANF monthly cap is based on a set dollar amount and is
not determined by federal poverty levels.
Page 3
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SSI
In 1972, federal law established the Supplemental Security Income (SSI)
program, which provides federally funded cash assistance to the elderly and
disabled poor. In Texas, SSI recipients are also automatically eligible for
Medicaid. The Social Security Administration (SSA) determines SSI eligibility
criteria and sets the cash benefit amounts for SSI. States may supplement SSI
payments with state funds. About half the states supplement the monthly SSI
payment by $3 per month or more. Texas does not do so.
To be eligible for SSI, an individual must be at least 65 years old or disabled and
have limited assets and income. The individual’s income must be below the
Federal Benefit Rate (FBR). In 2004, the limit for individuals is $564 a month in
countable income and no more than $2,000 in countable resources. The limit for
couples is $846 a month with no more than $3,000 in countable resources. The
amount of the SSI payment is the difference between the person’s countable
income and the FBR.
De-Linking Medicaid and Cash Assistance
Historically, all Medicaid enrollees were either on SSI or welfare. Federal laws
passed in the late 1980s mandated Medicaid coverage for groups of people
ineligible for TANF or SSI. This resulted in a major expansion of the eligible
population. The laws precipitated a gradual de-linking of federal assistance
(under either welfare or SSI) from Medicaid. Members of working families and
others with low incomes were now also eligible to receive Medicaid.
The following program expansions resulted from federal mandates:
• Payments to hospitals that serve large numbers of poor uninsured or
Medicaid clients were significantly increased. These payments, known as
disproportionate share hospital payments (“DSH” or “Dispro”) slowed or
mitigated local property tax increases in Texas’ large urban areas and slowed
the rate of rural hospital closures.
• Coverage of prenatal and delivery services for certain pregnant women and
their infants who have no other insurance.
• Expansion of services to many children in low-income families who do not
receive TANF cash assistance.
• Expansion of Medicaid to fill gaps in Medicare services for low-income
persons who are elderly or disabled.
• Coverage of the full array of federally allowable Medicaid services as
medically necessary and appropriate for all children on Medicaid.
Page 4
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As a result of these and other changes in federal law, the Medicaid eligibility
determination process is far more complicated today than in the past. Computer
systems designed for a smaller and simpler program must now manage
information for millions of people in dozens of different eligibility groups. Figure
3.2 depicts the current Medicaid income eligibility levels in the most common
Medicaid eligibility categories.
Figure 3.2 Texas Medicaid Income Eligibility Levels for Selected
Categories , December 2003
14%
21%
74%
74%
100%
133%
133%
133%
220%
158%
185%
0%
50%
100%
150%
200%
250%
Pregnant
Women
(<19) and
Infants
Pregnant
Women 19
and Older
Children
Ages 1 - 5
Children
Ages 6 - 18
Parent w /
TANF
Children
SSI, Aged
and Disabled
Long Term
Care
Medically
Needy *
Mandatory
Optional
* Applies to pregnant w omen and children only.
In SFY 2004, for TANF parents w ith children, eligibility is determined based on an income no higher than $188 a
month for a family of 3, w hich translates to 14% of poverty. For medically needy pregnant w omen and children, the
maximum monthly income limit is $275, w hich translates to 21% of poverty.
Source: Health and Human Services Commission, Texas Medicaid Program
Mandatory levels identify the coverage levels required by the federal
government. Optional levels show coverage Texas has implemented at higher
levels allowed but not mandated by the federal government.
Medicaid Coverage
An Insurance Program
Medicaid is both a basic health insurance program and an insurance program for
people with chronic or long-term care needs. Medicaid makes no cash
payments to clients, but instead makes all payments directly to health care
providers or managed care organizations (MCOs).
Page 5
3-5
“Health care providers” is a general term that includes:
• Health professionals - doctors, nurses, physician assistants, chiropractors,
physical therapists, clinical social workers, dentists, psychologists,
nutritionists
• Health facilities - hospitals, nursing homes, institutions and homes for the
mentally retarded, clinics, community health centers
• Providers of other critical services like pharmaceuticals or drugs, medical
supplies and equipment, medical transportation.
Basic Health Care
Medicaid pays for typical health services such as physician services, inpatient
and outpatient hospital services, pharmacy, and lab and x-ray services. These
five areas accounted for 46 percent of Texas Medicaid health expenditures in
federal fiscal year (FFY) 2002.
a
Medicaid also provides a broader array of basic
health services to children than do most private health plans, such as dental
benefits.
Services to Aged and Disabled
Medicaid covers a broad range of services for people who need assistance with
activities of daily living. These services, typically called long-term care, include
nursing facility care; care in facilities for people with mental retardation; and a
range of in-home and community care services for people with disabilities and
those who are elderly. These long-term care services accounted for
approximately 30 percent of all Texas Medicaid services expenditures in FFY
2002.
b
Mandatory vs. Optional Spending
The federal government mandates certain benefits and coverage levels. Texas
has chosen to cover some optional services allowed but not required by the
federal government (see Table 4.4 in Chapter 4). Eliminating some optional
services and eligibility categories could actually increase Medicaid costs. For
example, dropping the option of covering prescription drugs could ultimately cost
Medicaid more. People who do not receive needed drugs may require more
physician services, increased hospitalizations or even long-term care. Similarly,
Texas saves money by covering pregnant women under age 19 up to 185
percent of the FPL and pregnant women aged 19 and older up to 158 percent of
the FPL because many women would not otherwise receive adequate prenatal
care. This coverage helps prevent poor (and costly) pregnancy outcomes. It
a
Source: MSIS for FFY 2002.
b
Long-term care services included are mental health facilities, nursing facilities, ICFs/MR, home
health, and hospice.
Page 6
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costs Medicaid much more to pay for unhealthy infants than it does to cover
prenatal care.
In addition, some of the optional services covered by Texas Medicaid were paid
with 100 percent state or local funds prior to Medicaid coverage. For example,
services for persons with mental retardation provided through state schools and
in community residential settings now receive federal Medicaid matching dollars
in addition to state dollars.
Basic Principles
The Social Security Act sets out the following fundamental principles and
requirements for the Medicaid program:
Statewideness: All Medicaid services must be available on a statewide basis
and may not be restricted to residents of particular localities.
Comparability: Except where federal Medicaid law specifically creates an
exception, the same level of services (amount, duration, and scope) must be
available to all clients. A 1989 federal law (OBRA 89) created an exception to
this principle by mandating that all state Medicaid programs cover any service
that is medically necessary for a Medicaid-eligible child, as long as that service
is allowable under federal Medicaid law. As a result, children are generally
entitled to a broader range of services under Medicaid than are adults. Another
exception allows states to provide a reduced package of services to persons who
are eligible for Medicaid because they qualify as Medically Needy. This means
they only meet income requirements after subtracting medical expenses from
their income.
Freedom of Choice: Clients must be allowed to go to any Medicaid health care
provider who meets program standards.
Amount, Duration, & Scope: States must cover each service in an amount,
duration, and scope that is “reasonably sufficient.” States may impose limits on
services only for Medicaid clients who are age 21 and over. But the State may
not arbitrarily limit services for any specific illness or condition.
State Medicaid programs must follow these basic principles and comply with all
mandates related to eligibility and covered services unless the Centers for
Medicare and Medicaid Services (CMS, formerly known as HCFA) grants a
specific exemption via a waiver to the state. (Waivers are discussed in more
detail later in this chapter.)
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How Medicaid is Financed
Medicaid is an entitlement program. This means that the federal government
does not, and states cannot, limit the number of eligible people who can enroll
and Medicaid must pay for any services covered under the program. States
must provide medically necessary care to all eligible individuals who seek
services.
Medicaid is jointly financed by the federal government and the states. The
Secretary of the U.S. Department of Health and Human Services determines
each state’s federal share of most health care costs (federal medical
assistance percentage - FMAP) using a formula based on average state per
capita income compared to the U.S. average. These matching rates are updated
every year to reflect changes in average income. Under current law, the
maximum federal share is 83 percent and the minimum is 50 percent. In FFY
2004, 15 states are matched at the 50 percent “floor” rate, and no state is at the
cap. (Mississippi has the highest match at 77.08 percent.)
Texas’ matching rate for FFY 2004 is 60.22 percent; that is, the state must pay
39.78 percent of most Medicaid costs. Federal fiscal relief legislation gives all
states an additional one time 2.95 percent FMAP increase for the period of April
1, 2003 to June 30, 2004. The state also uses what is called a “one month
differential” FMAP figure. This takes into account differences between the federal
fiscal year (FFY: October through September), on which the federal FMAP rate is
based, and the state fiscal year (SFY: September through August). The “one
month differential” FMAP for Texas in SFY 2004 (which includes one month of
the FFY 2003 rate and 11 months of the FFY 2004 rate) plus the additional
FMAP from the federal fiscal relief legislation results in a “blended” FMAP of
62.67 percent.
The federal government matches program costs in addition to client services at
different rates. Medicaid administrative costs, related to program administration,
are generally matched at 50 percent. Administrative services that can be
performed only by skilled professional medical personnel draw a 75 percent
federal match. Family planning services draw a 90 percent federal match and
certain approved information system development costs are matched at 90
percent.
States may use local government funding for up to 60 percent of the state’s
share. Texas uses local government funding for the disproportionate share
hospital reimbursement program, the upper payment limit, and other aspects of
the Medicaid program. Federal law specifies that taxes on health care
providers cannot make up more than 25 percent of the state’s share of total
Medicaid expenditures. Texas also assesses quality assurance fees for ICF-MR
facilities; these funds contribute to the ICF-MR operating budget.
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How Medicaid Operates in Texas
The Texas Medicaid program, under the direction of the Health and Human
Services Commission (HHSC), involves multiple state agencies. This section
explains the different parts of the program and how they interrelate.
Federal Oversight
The Social Security Act and federal regulations establish minimum levels of
coverage that states must provide in order to operate a Medicaid program.
Federal law and regulations also establish optional coverage categories, all or
part of which states may choose to cover. Each state covers the required
services and eligibility groups, but develops a unique program by determining
which optional services and eligibility groups to cover.
While states are responsible for the hands-on operation of Medicaid, the federal
government plays a very active oversight role. CMS, a part of the U.S.
Department of Health and Human Services, oversees the Medicaid program.
CMS approves the Medicaid State Plan that each state creates, as well as any
waivers for which states apply.
Single State Agency
Federal Medicaid regulations require that each state designate a single state
agency responsible for the state’s Medicaid program. HHSC has been the
single state agency for the Medicaid program since January 1993. Within HHSC,
the State Medicaid Director administers the Medicaid program.
As the single state agency, HHSC has final authority in the state for Medicaid
policies and operations. HHSC’s Medicaid responsibilities include:
• Serving as the primary point of contact with the federal government.
• Establishing policy directions for the Medicaid program.
• Administering the Medicaid State Plan.
• Contracting with the various state agencies (see Figure 3.4) to carry out the
technical operations of the Medicaid programs.
• Operating the state’s acute care vendor drug and Medicaid managed care
(STAR and STAR+PLUS) programs.
• Approval of Medicaid policies, rules, reimbursement rates, and oversight of
operations of the state agencies contracted to operate Medicaid programs.
• Organizing and coordinating initiatives to maximize federal funding.
• Administering the Medical Care Advisory Committee (MCAC) (mandated by
federal Medicaid law).
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The Medicaid State Plan is a dynamic document that functions as the state’s
contract with CMS. The State Plan documents the specific services, eligible
populations and payment methodologies that comprise the Texas Medicaid
program. Significant changes to a state’s Medicaid program require the state to
submit a State Plan Amendment for CMS approval.
Transformation of Health and Human Services
in Texas
House Bill 2292 (78
th
Legislature, Regular Session, 2003) initiated a major
reorganization of health and human services administration in Texas. The bill
directed the twelve existing health and human services agencies to consolidate
their organizational structures and functions. The goal is to improve integration of
services and diminish duplication throughout the system. The reorganization,
anticipated to be complete by September 2004, will result in a health and human
services system administered by five agencies:
• Health and Human Services Commission (HHSC)
• Department of State Health Services (DSHS)
• Department of Aging and Disability Services (DADS)
• Department of Assistive and Rehabilitative Services (DARS)
• Department of Family and Protective Services (DFPS)
The commissioners of the other four agencies will report to the HHSC Executive
Commissioner. In addition, each of the agencies will have an advisory council of
nine gubernatorial appointees. Each council will be responsible for advising the
commissioner of its respective agency regarding policies and programs.
Figure 3.3 illustrates the transformation of the Texas health and human services
system pursuant to H.B. 2292.
Operating Agencies in Texas
Federal law allows the single state agency to delegate some of its functions to
other state agencies, so long as it monitors quality of care and program integrity
for delegated functions. Functions, which may be delegated, include:
• Determining eligibility
• Processing claims
• Certifying that health providers meet program standards
• Collecting data on Medicaid spending and services
• Evaluating appropriateness and quality of institutional care
• Setting provider rates and methodology
• Determining program benefits
• Other program specifications.
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In Texas, HHSC delegates many of the day-to-day operations of the Medicaid
program (see Figure 3.4) to other state agencies; thus, these agencies are
known as operating agencies. The H.B. 2292 (78
th
Legislature, Regular Session,
2003) reorganization resulted in changes to operating agencies. Figure 3.3
shows the new organizational structure with the dates that agencies are
scheduled to begin operations.
GOVERNOR
Health and Human Services Commission
HHS Centralized Administrative Services
TANF
Medicaid
Eligibility Determination
HHS Rate Setting
Nutritional Services
HHS Program Policy
Family Violence Services
Vendor Drug Program
HHS Ombudsman
CHIP
Interagency Initiatives
Department of State Health Services (DSHS)
(Scheduled to begin operations 9/1/04)
Health Services
Mental Health Services- State hospitals, Community Services
Alcohol and Drug Abuse Services
Department of Aging and Disability Services
(DADS)
(Scheduled to begin operations 9/1/04)
Mental Retardation Services - State Schools, Community Services
Community Care Services
Nursing Home Services
Aging Services
Department of Assistive and Rehabilitative
Services (DARS)
(Began operations 3/1/04)
Rehabilitation Services
Blind and Visually Impaired Services
Deaf and Hard of Hearing Services
Early Childhood Intervention Services
Department of Family and Protective Services
(DFPS)
(Began operations 2/2/04)
Child Protective Services
Adult Protective Services
Child Care Regulatory Services
Figure 3.3 Consolidated Texas Health and Human Services System
Department of Protective and Regulatory Services (PRS)
Early Childhood Intervention (ECI)
Texas Commission for the Blind (TCB)
Texas Commission for the Deaf and Hard of Hearing
(TCDHH)
Texas Rehabilitation Commission (TRC)
Department of Human Services (DHS)
Department of Mental Health and Mental Retardation
(MHMR)
Texas Department on Aging (TDoA)
Department of Mental Health and Mental Retardation
(MHMR)
Texas Commission on Alcohol and Drug Abuse (TCADA)
Texas Department of Health (TDH)
Texas Health Care Information Council (THCIC)
Health and Human Services
Commission (HHSC)
Department of Human Services
(DHS)
Agencies formerly providing programs
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GOVERNOR
HHSC
Executive Commissioner
Single State Agency
Medicaid Eligibility Determination
Medicaid Services
STAR and STAR+PLUS Programs
Vendor Drug Program
Office of Inspector General (OIG)
Department of State Health Services (DSHS)
(Scheduled to begin operations 9/1/04)
Texas Health Steps
Family Planning
Targeted Case Management - Mental Health
NorthSTAR
Rehabilitation Services for Mental Illness
Department of Aging and Disability Services
(DADS)
(Scheduled to begin operations 9/1/04)
Nursing Facility Programs and Services
LTC Licensing, Survey and Certification
Community Care (personal care, DAHS)
PASRR
Hospice
Waivers (CLASS, PACE, CBA, MDCP, DBMD, HCS, TxHmL)
Targeted Case Management for Mentally Retarded
Department of Assistive and Rehabilitative
Services (DARS)
(began operations 3/1/04)
Targeted Case Management for Blind
Developmental Rehabilitative Services for Early Childhood
Department of Family and Protective Services
(DFPS)
(began operations 2/2/04)
Targeted Case Management for Children in Protective Services
Texas Department of Transportation *
Medical Transportation Program
* Medical Transportation Program services are being provided
through an Inter-Agency Contract. The Texas Department of
Transportation is not part of the HHS System.
Figure 3.4 Medicaid Operating Agencies, 2004
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Medicaid Waivers
Federal law allows states to apply to CMS for permission to depart from certain
Medicaid requirements. These “waivers” allow states to operate programs that
include exceptions to Medicaid’s basic principles, required array of benefits,
mandated eligibility and income groups, or combinations of these. Waivers allow
states to develop creative alternatives to the traditional Medicaid program.
States seek waivers to:
• Provide different kinds of services
• Provide Medicaid eligibility to new groups
• Target certain services to certain groups, and/or
• Implement innovative new service delivery and management models.
Table 3.1 describes the three major types of waivers federal law allows. More
information on Medicaid waivers can be found on the CMS website.
Table 3.1: Common Types of Federal Medicaid Waivers
Waiver
Description
Research and
Demonstration
1115 waivers
PURPOSE
•
Allow flexibility for states to test substantially new ideas for operating
their Medicaid programs. Waives a variety of requirements, such as
comparability or statewideness.
STATES HAVE USED THESE WAIVERS TO
•
Structure statewide health system reforms.
•
Test the value of access to new services or service delivery
mechanisms (cost effectiveness, efficacy).
•
Maximize coverage of health insurance for people below 200% of FPL
(Health Insurance Flexibility and Accountability Waiver).
•
Extend drug coverage to certain low-income non-Medicaid elderly and
disabled individuals (Pharmacy Plus waiver).
REQUIREMENTS
•
Must be budget neutral for the duration of the waiver.
TIMEFRAME
•
Generally 5-year waivers, subject to renewal.
•
CMS analyzes impact on utilization, insurance coverage, public and
private expenditures, quality, access, and satisfaction.
Freedom of
Choice
1915(b)
waivers
PURPOSE:
•
Allow states to waive statewideness, comparability of services and
freedom of choice. With 1915(b) waivers, states can mandate
Medicaid enrollment into managed care, use a “central broker” (e.g.
enrollment broker) to assist people in making health plan choices, use
cost savings to provide additional services, and/or limit the number of
providers for clients.
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Table 3.1: Common Types of Federal Medicaid Waivers
Waiver
Description
STATES MAY USE TO
•
Limit clients’ choice of Medicaid providers.
•
Require Medicaid clients to join managed care organizations (such as
HMOs) in order to receive Medicaid services.
•
Provide an enhanced benefit package (beyond what is available
through the State Plan) with cost savings from managed care.
•
Selectively contract with hospitals and other types of health care
providers to increase cost-effectiveness and to better control quality of
services.
REQUIREMENTS:
•
Must be cost effective.
•
Client access, quality of care and cost must not be negatively
impacted by implementation of waiver.
TIMEFRAME:
•
1915(b) waivers are 2-year waivers, subject to renewal.
•
CMS requires an independent assessment to show that cost, quality,
and access have not been compromised.
Home and
Community-
Based
Services
1915(c)
waivers
PURPOSE:
•
Allow states to provide community-based services to people who meet
eligibility criteria for care in an institution (nursing home, intermediate
care facilities for persons with mental retardation, or hospital) or who
would otherwise meet eligibility criteria for care.
STATES MAY USE TO
•
Serve elderly persons or persons with physical and/or developmental
disabilities, mental retardation or mental illness. States may also target
more specialized populations such as clients with traumatic brain
injuries or those with developmental disability and sensory impairment.
•
Develop community-based treatment alternatives to institutional care
in hospitals, nursing facilities or intermediate care facilities for persons
with mental retardation (ICFs/MR).
•
Provide services which are not found in the state plan or which extend
state plan services. Examples include case management,
homemaker/home health aide services, personal care services, adult
day health, habilitation, respite care, non-medical transportation, in-
home support services, special communication services, minor home
modifications, and adult day care.
REQUIREMENTS:
•
Must be budget neutral for the duration of the waiver.
•
Must assure safeguards are in place to protect clients.
TIMEFRAME:
•
1915(c) waivers are initially approved for 3 years and may be renewed
at 5-year intervals.
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Texas currently has five 1915(b) waivers. They enable the state to do Medicaid
managed care and selectively contract with hospitals for services. The state also
has seven 1915(c) waivers that provide a broad array of home and community-
based services to the elderly or people with disabilities as an alternative to
institutional care.
Texas Medicaid Administrative System
In 1996, the State examined future needs for claims administration and managed
care support in light of its administrative systems and management information
system (MIS) requirements. The State decided to meet these needs by
contracting with private organizations to obtain specialized services to support
the Texas Medicaid program. Under the design of the Texas Medicaid
Administrative Systems (TMAS), the State and its contractors coordinate and
work closely together in an enhanced system to support Medicaid clients and
their health care providers.
The four current TMAS contract functions are:
• The Claims Administrator, currently Texas Medicaid and Healthcare
Partnership (TMHP), processes and adjudicates all claims for Medicaid
services that are outside the scope of capitated arrangements between the
health plans and the State. The Claims Administrator also collects encounter
data from HMOs to use in the evaluation of quality and utilization of services.
• The Primary Care Case Management (PCCM) Administrator, currently
TMHP, develops and administers a network of providers to ensure that
enrollees in the PCCM program have adequate access to primary care
providers (PCPs) and all medical services.
• The Enrollment Broker, currently MAXIMUS, assists in educating clients
who are to be enrolled in Medicaid managed care about their health plan and
PCP choices. The Enrollment Broker also enrolls clients into Medicaid
managed care and processes health plan changes.
• The Quality Monitor, currently the Institute for Child Health Policy (ICHP),
provides external reviews to assess access to care and the quality of care
provided by the PCCM network, Medicaid HMOs and CHIP health plans. The
Quality Monitor also collects encounter data.
Prior to 1997, TMAS functions were handled entirely by the National Heritage
Insurance Company (NHIC). In 1997, the state contracted with ACS/Birch and
Davis Health Management Corporation (BDHMC) to act as PCCM Administrator
in Harris County, and with MAXIMUS to act as Enrollment Broker for the entire
managed care program. In 1998, the state awarded the contract for Claims
Administrator to NHIC, and the contract for PCCM Administrator in all service
delivery areas to BDHMC. The contracts for NHIC and BDHMC expired on
December 31, 2003. MAXIMUS is still under contract as the Enrollment Broker.
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Effective January 1, 2004, a coalition of contractors, headed by Affiliated
Computer Services, Inc. (ACS) and working under the name of the Texas
Medicaid and Healthcare Partnership (TMHP), became the Texas Medicaid
Claims Administrator. At the same time, TMHP also became the PCCM
Administrator.
The Texas Health Quality Alliance (THQA) was the state’s first Quality Monitor,
the term used for the external quality review organization (EQRO) which is
federally required for state Medicaid managed care programs. In August 2002,
the Quality Monitor function was contracted to the Institute for Child Health Policy
(ICHP) at the University of Florida.
Fiscal Agent Arrangement
A fiscal agent arrangement is one of two methods allowed under federal law for
Medicaid claims payment. Most states contract with private entities known as
fiscal agents to perform part or all of the Medicaid claims processing functions.
Prior to January 1, 2004, Texas contracted with NHIC for claims processing
under an “insured arrangement,” which provided for shared risk for a small
portion of claims.
Texas transitioned to a fiscal agent arrangement on January 1, 2004. Under a
fiscal agent arrangement, the contractor is responsible for paying claims and the
State is responsible for covering the cost of the claims. The State’s fiscal agent,
TMHP, pays for claims for the same services that NHIC paid under the insured
arrangement.
Compass 21
The State developed a new Medicaid Management Information System (MMIS)
called Compass 21 in August 2001. Compass 21 replaced the previous existing
20-year-old automation system to better support claims processing and
information needs.
Compass 21 added several new capabilities, including the ability to support
multiple claims systems, such as traditional fee-for-service Medicaid and other
non-Medicaid programs. The new system also includes a data warehouse that
improves access to data for analysis. Other features include the flexibility to add
new benefit plans and pricing methodologies.
The TIERS Project
The Texas Integrated Eligibility and Redesign System (TIERS) project was
created by the 76
th
Texas Legislature to implement several improvements in the
delivery of social service programs. The project’s goal is to redesign and replace
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the current eligibility systems for Food Stamps, Temporary Assistance for Needy
Families (TANF), Medicaid and Long-Term Care. It will also improve existing
business processes in order to enhance service delivery. The project includes
replacing several outdated automation systems with one state-of-the-art
integrated system. One data system to be replaced is the 20-year-old eligibility
data system, known as System for Application Verification, Eligibility, Referrals,
and Reporting (SAVERR), which contains all Medicaid eligibility information.
HHSC and the Medicaid operating agencies are working with the TIERS project
staff to design the improved eligibility system. The new eligibility system is
currently in a test phase.
Detecting Fraud and Abuse
Prior to legislation enacted during the 78
th
Legislature (Regular Session) in 2003,
the Office of Investigation and Enforcement (OIE) within HHSC was responsible
for detecting, investigating and preventing fraud, abuse or waste in the provision
of health and human services, including Medicaid. In 2003 the Legislature
renamed and expanded the responsibilities of OIE. The new Office of Inspector
General (OIG) at HHSC is responsible for the former OIE functions, as well as
enforcing state law relative to the provision of health and human services,
including Medicaid. The Legislature consolidated the following functions into the
OIG:
• The Office of Investigator General of the Texas Department of Human
Services.
• The Criminal Investigation Division of the Texas Department of Health.
• Investigations functions at the Texas Rehabilitation Commission, the Texas
Department of Mental Health and Mental Retardation, and the Texas.
Department of Protective and Regulatory Services.
The Legislature also gave the OIG expanded power and jurisdiction to enhance
its ability to investigate fraud and abuse.
The OIG is required to set clear objectives, priorities and performance standards
that emphasize:
• Coordinating investigative efforts to aggressively recover Medicaid
overpayments.
• Allocating resources to cases that have the strongest supportive evidence
and the greatest potential for recovery of money.
• Maximizing the opportunities for referral of cases to the Office of Attorney
General for investigation and possible presentation for prosecution.
If the investigation of an allegation, complaint, or referral produces tangible
evidence of potential fraud, abuse, or waste by a provider, vendor, or contractor,
the OIG has the authority to impose administrative actions and/or sanctions.
Administrative sanctions may include any one or a combination of the following:
1) recoupment of overpayments, 2) payment hold, 3) contract cancellation,
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4) exclusion from participation in the Medicaid program, and/or 5) civil monetary
penalties. Providers may appeal sanctions and receive a hearing presided over
by an independent administrative law judge. The most serious sanctions imposed
by OIG involve contract cancellation and exclusion from the Medicaid program.
OIG also refers quality of care issues to the appropriate licensing board or
authority and makes referrals, as warranted to the Office of the Inspector
General, U. S. Health and Human Services Department.
Total recoupments by OIE for all of its activities in SFY 2003 exceeded $390
million. Cost avoidance and savings achieved by OIE exceeded $237 million.
Federal and State Legislation Affecting
the Texas Medicaid Program
Nationally and in Texas, Medicaid programs change in response to legislative
requirements. The following sections highlight recent significant legislative
changes that have affected the Texas Medicaid program, highlights from the 78
th
Texas Legislative Session and a summary of relevant federal legislation since
1965.
Significant Recent Legislation
Welfare Reform and the Link to Medicaid
The 74th Texas Legislature pre-empted federal welfare legislation with the
passage of House Bill 1863 in 1995. HB 1863 required the Texas Department of
Human Services (DHS) to seek a waiver for a demonstration welfare reform
program called Achieving Change for Texans (ACT). The ACT waiver received
federal approved in March of 1996 and was fully implemented in January 1997.
The waiver expired on March 31, 2002. The program required clients who
received TANF benefits to sign a personal responsibility agreement that
addressed such issues as child support cooperation, meeting Texas Health
Steps (THSteps) screening schedules, work requirements, drug and alcohol
treatment, and parenting skills.
1
The Personal Responsibility and Work Opportunity Reconciliation Act
(PRWORA) of 1996 (PL 104-193) is federal legislation that requires adult TANF
clients to participate in work activities within two years of entering the program
and prohibits them from receiving federally funded TANF benefits for more than
60 months over a lifetime. The impact of welfare reform is thought to be partly
responsible for the State’s Medicaid caseload drop in the mid to late 1990s.
Individuals who qualified for TANF made up around 18 percent of the Medicaid
population in 1999, down from 28 percent in 1997.
2
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PRWORA also gave states the option to decide whether or not to continue
providing Medicaid to most legal immigrants. Most immigrants entering the U.S.
after August 22, 1996 are subject to a 5-year "bar" period, during which no
federal Medicaid funds can be accessed for their care. The Balanced Budget Act
of 1997 (BBA) restored SSI benefits for legal immigrants who arrived in the
United States prior to August 22, 1996, but limited the benefit to the first seven
years of a person’s residence in this country. Beginning in 2003, some persons
began to reach the 7-year limit. Those arriving after August 22, 1996, are still
ineligible for the SSI program.
Medicaid benefits have never been available to undocumented immigrants, thus
the BBA made no changes in this area. States are mandated to reimburse health
providers for costs of emergency services to undocumented persons who would
otherwise be income-eligible for Medicaid, including costs of labor and delivery.
The Balanced Budget Act of 1997 (PL 105-33)
Under the Balanced Budget Act (BBA), both Medicaid and Medicare statutes and
regulations were significantly altered. Total federal Medicaid spending was cut
$17.2 billion through:
• Reduction of payments to disproportionate share hospitals (DSH)
• Allowances for states to lower what they paid for Medicare co-payments,
deductibles and coinsurance for Qualified Medicare Beneficiaries
• Repeal of the Boren Amendment, eliminating minimum payment guarantees
for hospitals, nursing homes and community health centers that serve
Medicaid clients.
3
Under the BBA, states no longer needed a waiver, such as an 1115 or 1915(b),
to require most Medicaid-eligible pregnant women and children to enroll in
managed care plans. A waiver is still required if a state wants to expand
Medicaid eligibility, require SSI recipients and foster children to enroll in
managed care plans, or expand benefits.
4
States also gained two new eligibility options.
• Guaranteed eligibility. This option allows states to choose to guarantee
Medicaid coverage for up to 12 months for all children, even if they no longer
meet Medicaid income eligibility tests. Pursuant to Senate Bill 43 (77
th
Legislature), Texas implemented 6 month guaranteed eligibility for children
effective January 2002. House Bill 2292 (78
th
Legislature, Regular Session,
2003) deferred the implementation of 12-month continuous eligibility until
September 1, 2005.
• Buy-in. This option allows states to offer individuals with income below 250
percent of the FPL who would be eligible for SSI except for their earned
income, an opportunity to “buy-in” to the Medicaid program. Each state
creates guidelines for its own Medicaid buy-in program.
5
Texas currently does
not operate a buy-in program.
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Children’s Health Insurance Program
While the BBA created cuts in the Medicaid program, it also provided funds to
cover some of America’s 11.8 million uninsured children. The BBA dedicated
nearly $50 billion over 10 years to the Children’s Health Insurance Program or
CHIP. Estimates from the 1999 Current Population Survey calculated the number
of uninsured Texas children ages 0 to 18 at 1.4 million, or nearly one-quarter of
the children in the state.
In July 1998, Texas implemented Phase I of its CHIP program, providing
Medicaid to children aged 15 to 18 under 100 percent of the FPL. Phase I of
CHIP was created to run from July 1998 through September 2002. The program
phased out as Medicaid expanded to cover those children.
Implementing legislation for Phase II of CHIP was passed during the 76
th
Legislature. Senate Bill 445 specified that coverage under CHIP be available to
families with incomes up to 200 percent of the FPL. Coverage under Phase II of
the program began on May 1, 2000. HHSC, which was given overall authority for
the program, initially estimated that about 478,000 Texas children would qualify
for CHIP. By February 2002, 516,000 children were enrolled.
H.B. 2292 (78
th
Legislature, Regular Session, 2003) made numerous policy
changes to the CHIP program including tightened eligibility standards. As of
February 2004, CHIP enrollment totaled 399,306 children.
Balanced Budget Refinement Act of 1999 (BBRA) (Incorporated by
reference in P.L. 106-113)
The Balanced Budget Refinement Act of 1999 (BBRA) provided approximately
$17 billion in "BBA relief" over 5 years. Most of the provisions of the BBRA were
focused specifically on rural health care delivery and access to services for rural
Medicare beneficiaries; however, there were provisions specific to the Medicaid
program. In particular, the BBRA:
5
• Extended the phase-out of cost-based reimbursement for community health
centers. A study will determine how these clinics should be paid in the future.
• Changed Medicaid disproportionate share hospital (DSH) payments and
rules. The base-year data used to set the DSH allotments in the BBA were
flawed for some states and adjustments were made. The DSH transition rule
was also made permanent and states were prohibited from using enhanced
federal matching payments under the state Children's Health Insurance
Program (CHIP, see below) for DSH.
Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(MMA) (P.L. 108-173)
The most historic feature of the MMA is the creation of an outpatient prescription
drug benefit in Medicare. The bill also changed many provider payments, some
of which had been reduced or constrained under previous legislation. Major
provisions affecting the Medicaid program include:
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• Implementation of a voluntary prescription drug benefit beginning January 1,
2006. Called Part D, the benefit will be available to all Medicare beneficiaries,
including those who are also eligible for Medicaid (dual eligibles).
• Recoupment of part of the federal cost of the new drug benefit by requiring
states to refund a portion of their savings from Medicare providing drug
coverage to dual eligibles (referred to as the “clawback” provision).
• Addition of preventive benefits to Medicare, which will reduce the cost to
Medicaid, which previously covered the services.
• Increases in the cost of Medicare Part B premiums (physician, lab services,
etc.), for which Medicaid currently pays on behalf of certain dual eligibles.
• Increases in the Disproportionate Share Hospital Payments State Allotments
for 2004-2010.
Highlights of Texas Legislation Affecting
Medicaid from the 78
th
Legislature, Regular
Session, 2003
House Bill 2292
H.B. 2292 relates to the provision of health and human services in the state.
Article I realigns operations of the existing 12 health and human services
agencies by consolidating similar functions within 5 agencies. Article 2 includes
the following provisions specific to Medicaid:
• Continues coverage for all children currently eligible for Medicaid.
• Maintains the term of children's coverage (continuous eligibility period) at six
months.
• Provides that more thorough procedures (such as using information from
consumer reporting agencies, appraisal districts, or vehicle registration
records) to verify assets may be implemented.
• Requires a personal interview for initial eligibility determination if requested by
the applicant; otherwise allows a personal interview for initial eligibility
determination only if eligibility cannot be determined through mail
correspondence.
• Requires a personal interview for recertification of eligibility if requested by
the client; otherwise allows a personal interview to renew coverage if eligibility
cannot be determined through a telephone interview or mail correspondence.
• Allows establishment of cost sharing (i.e., co-pays and monthly premiums)
based on federal maximum levels.
• Requires that adult cash assistance recipients comply with the personal
responsibility agreement to continue receiving Medicaid coverage
• Discontinues coverage for pregnant women over age 19 with income above
158 percent of the FPL.
• Discontinues coverage for medically needy non-pregnant adult clients with
incomes above the TANF eligibility level.
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• Allows establishment of prior authorization requirements for high-cost medical
services.
• Directs the implementation of disease management efforts.
• Requires that medical assistance be delivered through the most cost-effective
method of managed care throughout the state and that guidelines for
appropriate usage of out-of-network providers be established.
• Directs that a Preferred Drug List (PDL) be implemented, with prior
authorization required for prescribed drugs not on the PDL.
• Allows establishment of four brand name and 34-day brand-name supply
limits for clients previously eligible for unlimited prescriptions (does not affect
current three-prescription limits for certain clients).
• Discontinues coverage for certain optional Medicaid services for adults age
21 and over:
•• Eyeglasses/contact lenses
•• Hearing aids
•• Services provided by podiatrists
•• Services provided by chiropractors
•• Psychological services from licensed psychologists, marriage and family
therapists, professional counselors, and master social worker-advanced
clinical practitioners
• Establishes a statutory basis for estate recovery of Medicaid expenditures
pursuant to federal requirements.
• Discontinues reimbursement of Graduate Medical Education.
• Decreases reimbursement rates by 5 percent for Medicaid acute care
providers such as physicians, hospitals and HMOs. Note: this decrease has
been partially restored to a 2.5 percent decrease.
• Decreases reimbursement rates by 2.2 percent to 3.5 percent for non-acute
care providers such as nursing homes, community care providers and
ICF/MR providers. Note: these decreases have been partially restored to 1.1
percent to 1.75 percent decreases.
House Bill 727
Requires HHSC to contract with vendor(s) to implement disease management in
fee-for-service Medicaid.
House Bill 1735
Requires implementation of disease management efforts in managed care.
House Bill 3122
Relates to the establishment of two types of locally based demonstration projects
to provide health care benefits to certain low-income parents of children receiving
Medicaid or enrolled in CHIP.
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House Bill 3484
Creates a workgroup charged with developing policy options to increase
employment of people with disabilities.
House Bill 3588 (Omnibus Transportation Bill)
Requires all HHS agencies to contract with the Texas Department of
Transportation for all responsibilities relating to the provision of transportation
services for clients.
Senate Bill 240
Requires HHSC to request federal matching funds for the employer’s share of
required premiums for CHIP eligible children enrolled in a group health plan.
Senate Bill 418
Delineates claims processing-related requirements for Medicaid and CHIP
HMOs.
Senate Bill 691
Requires HHSC to review the current Medicare reimbursement policy for
telemedicine and, to the extent practicable, modify rules and procedures
applicable for reimbursement for telemedicine services under Medicaid.
Major Federal Medicaid Legislation
1965 to Present
Social Security Amendments of 1967
Mandated
• EPSDT program for children’s health.
• Freedom of choice of providers.
Public Law 92-223 of 1971
Option
• Allows states to cover services in ICF and ICF/MR.
Social Security Amendments of 1972
Option
• Allows states to cover care for Medicaid clients under age 22 in inpatient
psychiatric hospitals.
Omnibus Budget Reconciliation Act (OBRA) of 1981
Option
• Allows states to provide home- and community-based services to persons
who would otherwise require institutional (hospital, ICF/MR, or nursing home)
services under “1915(c)” or “2176” waivers.
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Tax Equity and Fiscal Responsibility Act (TEFRA) of 1982
Option
• Allows states to extend coverage to disabled children under age 18 living at
home who would be eligible for SSI if in a hospital, ICF/MR, or nursing home
(the “Katie Beckett law”). This is not offered in Texas.
Deficit Reduction Act of 1984 (DEFRA)
Mandated
• Provides coverage of children up to age 5 born after 9/30/83 whose families
meet AFDC (now TANF) income and resource limits, even if the family
doesn’t qualify for AFDC (i.e., if both parents are in the home). Texas also
covers children from ages 6-19 in such families.
• Provides coverage of pregnant women in households that would meet AFDC
(now TANF) income/resource limits after a child is born, including households
with an unemployed “principal wage earner” present.
• Provides automatic coverage of infants born to (and living with) Medicaid-
eligible mothers.
Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA)
Mandated
• Extends coverage of pregnant women to households with an employed
principal wage earner if TANF financial standards are met. Discretionary
distributions from a "Medicaid-qualifying trust" are countable regardless of
whether such distributions are made.
Option
• Allows states to cover DEFRA children up to age 5 without waiting to phase
in.
Omnibus Budget Reconciliation Act (OBRA) 1986
Mandated
• Provides coverage of emergency care services (including labor and delivery)
for undocumented immigrants.
• Provides coverage of homeless persons: lack of home address may not be
grounds for denial of eligibility.
Option
• Allows states to cover infants up to age 1 and pregnant women under 100
percent of poverty. Creates phase-in for kids up to age 5 under 100 percent of
poverty. Also allows coverage for prenatal care while Medicaid application is
pending and guaranteed coverage for the full-term of pregnancy and
postpartum care. Allows states to waive assets tests for this group.
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Omnibus Budget Reconciliation Act (OBRA) 1987
Mandated
• Extends to age 7 coverage of kids born after September 30, 1983, whose
families meet AFDC (now TANF) financial standards, even if the family
doesn’t qualify for AFDC (extension to age 8 at state’s option).
• Makes sweeping changes in nursing home standards, including requirement
that all current and prospective nursing home clients be screened to identify
persons with mental illness, mental retardation, or related conditions (pre-
admission screening and resident reviews - PASRR).
Option
• Allows states to cover infants up to age 1 and pregnant women under 185
percent of poverty and allows immediate coverage (no phase-in) of kids up to
age 5 under 100 percent of poverty.
• Allows states to develop systems of care for home and community-based and
institutional long-term care via 1915 (d) waivers. (Not applicable in most
states.)
Medicare Catastrophic Coverage Act of 1988
Mandated
• Provides phased-in coverage of out-of-pocket costs (premiums, deductibles,
co-insurance) for Qualified Medicare Beneficiaries (QMBs) under 100 percent
of poverty.
• Provides phased-in coverage of infants up to age 1 and pregnant women
under 100 percent of poverty.
• Requires more comprehensive coverage of hospital services for infants.
• Requires the deduction of incurred medical expenses in the post-eligibility
treatment of income.
• Establishes minimum standards for income and asset protection for spouses
of Medicaid clients in nursing homes.
• Establishes a 30-month penalty period for transfers of assets to establish
Medicaid eligibility.
• Expands payments for hospital services for infants in all hospitals, and for
children up to age 6 in disproportionate share hospitals.
• Once eligibility is established, coverage of pregnant women may not be
terminated until two months postpartum. Infants born to Medicaid-eligible
mothers must be covered through first birthday if mother remains eligible or if
she would be eligible if she were pregnant.
Option
• Allows states to create home and community care programs for functionally
disabled persons [1929(b) “Frail Elderly”] and to apply for funding services for
persons with developmental disabilities [1930 Community Supported Living
Arrangements].
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Omnibus Budget Reconciliation Act (OBRA) of 1989
Mandated
• Does not permit states to limit amount, duration, scope or availability of state
plan services to children on Medicaid.
Medicaid Voluntary Contribution and Provider-Specific Tax Amendments of
1991
Mandated
• Restricts use of voluntary donations from health care providers to state
Medicaid programs.
• Caps spending on disproportionate share hospital (DSH) reimbursement.
• Sets strict standards for taxes on health care providers and ceilings on the
share of state Medicaid funds that may be financed through provider taxes.
Omnibus Budget Reconciliation Act (OBRA) 1993
Mandated
• States must distribute federally provided vaccines to Medicaid providers.
• States without medically needy spend-down programs for nursing home
services must allow eligibility of persons with certain trusts.
• Sets new standards for participation in and payments under the
disproportionate share reimbursement program.
• Sets stricter standards for transfer-of-assets penalties for nursing facility care
and home and community based waiver services. Also sets new standards for
the treatment of trusts in determining Medicaid eligibility.
Option
• States may create a new eligibility category for persons infected with
tuberculosis who meet Medicaid financial standards for disabled persons.
Health Insurance Portability and Accountability Act of 1996 (HIPAA) (P.L.
104-191)
• Requires standardized electronic exchange of administrative and financial
health services information for all health plans, including Medicaid.
• Protects the security and privacy of transmitted information.
• Phased in over multi-year period, culminating in 2003.
The Personal Responsibility and Work Opportunity Reconciliation Act
(PRWORA) of 1996 (Welfare Reform) (P.L. 104-193)
Selected Highlights Affecting Medicaid
• Retains the link to Medicaid eligibility for welfare recipients who meet the
state’s AFDC requirements in effect on July 16th, 1996. Persons eligible for
cash assistance under TANF guidelines are automatically entitled to coverage
under the Medicaid program.
• Families who lose eligibility for cash assistance due to child support or
increased earnings will receive Medicaid for a transitional period of up to 12
months.
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• States may terminate medical assistance for persons denied cash assistance
because of refusal to work. Pregnant women and children cannot be denied
Medicaid because of a parent’s refusal to work.
• States may deny Medicaid coverage to certain legal residents who are not
citizens.
• New immigrants will be automatically barred for five years after entry, but
states may offer Medicaid coverage after that time.
• Legal immigrants who lost SSI benefits also lost Medicaid coverage. Aged,
blind and disabled immigrants cannot be categorically eligible for Medicaid
unless a state covers those individuals through optional eligibility categories.
• Illegal immigrants are barred from most federal public benefit programs.
•
States may not deny emergency Medicaid to either illegal or legal aliens.
9
The Balanced Budget Act (BBA) of 1997 (P.L. 105-33)
(See summary on page 3-18 of this chapter.)
Balanced Budget Refinement Act of 1999 (BBRA)
(See summary on page 3-18 of this chapter.)
The Ticket to Work and Work Incentives Improvement Act of 1999 (TWWIIA)
(P.L. 106-170)
Option:
• Expands the BBA by creating two optional categorically needy Medicaid buy-
In groups for individuals aged 16-64 who, except for earned income, would be
eligible for Medicaid.
• Creates a new Medicaid buy-in demonstration to help people who are not yet
too disabled to work.
• Extends Medicare coverage for people with disabilities who return to work.
• Enhances the employment services system by creating a "Ticket to Work
Program." This system is intended to enable SSI or SSDI beneficiaries to
obtain vocational rehabilitation and employment services from either
participating public or private providers. If the beneficiary goes to work and
achieves substantial earnings, providers would be paid a portion of the
benefits saved.
6
Breast and Cervical Cancer Prevention and Treatment Act of 2000 (P.L. 106-
354)
7
• Allows states to create a new Medicaid eligibility category for persons
screened by a Centers for Disease Control and Prevention (CDC) breast and
cervical cancer early detection program, found to be in need of treatment for
cancer, and not otherwise eligible. Texas implemented this option in 2002.
• Provides federal funds for services at the same enhanced rate as for CHIP.
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Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act
of 2000 (BIPA) (P.L. 106-554)
8
• Increases 2001 and 2002 Disproportionate Share Hospital Payments State
Allotments.
• Requires new federal rules to be issued by the end of 2000 limiting Medicaid
Upper Payment Limits to government facilities and provides for a transition
period.
• Allows unspent 1998 and 1999 CHIP funds to be carried forward to
subsequent years and allows up to 10 percent of retained 1998 allotments to
be use for outreach activities.
Jobs and Growth Tax Relief Reconciliation Act of 2003 (TRRA) (P.L. 108-27)
• Temporarily increases the Federal Medical Assistance Percentage (FMAP)
for five calendar quarters (April 2003 through June 2004) as part of a “state
fiscal relief” package.
• As a condition for eligibility, requires states to maintain Medicaid eligibility in
effect on September 2, 2003.
CHIP Allotment Extension (P.L. 108-74)
• Allows states to retain unexpended FY 1998-1999 federal allocations through
FY 2004.
• Allows states additional time to spend 50 percent of unused FY 2000-2001
federal allocations (through FY 2004 and FY 2005, respectively).
• Allows approximately 10 states that had expanded Medicaid prior to the
enactment of CHIP to use their CHIP funds to cover the cost of some of those
expansions. This provision does not apply to Texas.
Welfare reform extensions
• Various laws passed in 2002 and 2003 to extend PRWORA beyond its
expiration date of Sept. 30, 2002. The most recent act (PL 108-89) extended
TANF and its related programs such as Transitional Medical Assistance
(TMA), until March 31, 2004.
Medicare Prescription Drug, Improvement, and Modernization Act of 2003
(MMA)
(See summary on page 3-19 of this chapter.)
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Endnotes
1 N. Pindus, R. Capps, J. Gallagher, L. Giannarelli, M. Saunders, & R. Smith,
Income Support and Social Services for Low-Income People in Texas, The
Urban Institute, Washington, D.C., 1998, p 2-3.
2 Health Care Financing Administration, 2082 Report, 1997 and 1999.
3 Center on Budget and Policy Priorities, Overview of Medicaid Provisions in the
Balanced Budget Act of 1997, P.L. 105-33, September 8, 1997,
(April 7, 2004).
4 Center on Budget and Policy Priorities, Overview of Medicaid Provisions in the
Balanced Budget Act of 1997, P.L. 105-33, September 8, 1997,
(April 7, 2004).
5 Rural Policy Research Institute, “Rural Implications of the Medicare, Medicaid
and SCHIP Balanced Budget Refinement Act of 1999: A Rural Analysis of the
Health Policy Provisions,” Executive Summary, December 1999, Implication of the Medicare, Medicaid and SCHIP Balanced Budget Refinement
Act of 1999, P99-11> (April 7, 2004)
6 Centers for Medicare and Medicaid Services, TWWIIA, n.d.
, (April 15, 2004).
7 U.S. House of Representatives, Committee on Ways and Means, Green Book
2003, (April 7,
2004).
8 U.S. House of Representatives, Committee on Ways and Means, Green Book
2003, (April 7,
2004).

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