The Prosecution and the Judges are paid by the same "GanG"......."Verdad?"

most distinguished defenders of individual rights,” “the best-known criminal lawyer in the world,” “the top lawyer of last resort,”

Alan Dershowitz

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# Detailed Biography

Professor Alan M. Dershowitz is Brooklyn native who has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights,” “the best-known criminal lawyer in the world,” “the top lawyer of last resort,” “America’s most public Jewish defender” and “Israel’s single most visible defender – the Jewish state’s lead attorney in the court of public opinion.” He is the Felix Frankfurter Professor of Law at Harvard Law School. Dershowitz, a graduate of Brooklyn College and Yale Law School, joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg.

He has also published more than 100 articles in magazines and journals such as The New York Times Magazine, The Washington Post. The Wall Street Journal, The New Republic, The Nation, Commentary, Saturday Review, The Harvard Law Review and the Yale Law Journal, and more than 300 of his articles have appeared in syndication in 50 national daily newspapers. Professor Dershowitz is the author of 27 fiction and non-fiction works with a worldwide audience. His most recent titles include Rights From Wrong, The Case For Israel, The Case For Peace, Blasphemy: How the Religious Right is Hijacking the Declaration of Independence and Preemption: A Knife that Cuts Both Ways, Finding Jefferson – A Lost Letter, A Remarkable Discovery, and The First Amendment In An Age of Terrorism.

In addition to his numerous law review articles and books about criminal and constitutional law, he has written, taught and lectured about history, philosophy, psychology, literature, mathematics, theology, music, sports – and even delicatessens.

In 1983, the Anti-Defamation League of the B'nai B'rith presented him with the William O. Douglas First Amendment Award for his "compassionate eloquent leadership and persistent advocacy in the struggle for civil and human rights." In presenting the award, Nobel Laureate Elie Wiesel said: "If there had been a few people like Alan Dershowitz during the 1930s and 1940s, the history of European Jewry might have been different." Professor Dershowitz has been awarded the honorary doctor of laws degree by Yeshiva University, the Hebrew Union College, Brooklyn College, Syracuse University and Haifa University. The New York Criminal Bar Association honored him for his "outstanding contribution as a scholar and dedicated defender of human rights."


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And I ask, "Why don't you speak up?"

Alan Dershowitz

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Voices of Antisemitism



Alan Dershowitz is concerned over what he views as a rising tide of antisemitic speech on American college campuses.



ALAN DERSHOWITZ:


I sure hope that [Jean-Paul] Sartre was not right that the antisemite makes the Jew. When I was growing up, antisemitism determined where we could work, where we could live, where we could go to school, who we could socialize with. None of that's true today. Antisemitism, its not a central phenomenon in the life of Americans. Whereas, of course, assimilation and other ways of Judaism being endangered from within are increasing problems. I think what we need is positive Judaism. We need young Jews to see the strengths, the positive aspects of Judaism, not only as a religion but as a culture, a civilization, as part of one's way of life. Even though antisemitism is not a function of their own lives.

DANIEL GREENE:


Author, professor, and civil liberties attorney Alan Dershowitz is concerned over what he views as a rising tide of antisemitic speech on American college campuses. Dershowitz calls upon his peers to condemn those who would use such rhetoric to justify hatred of Jews.

Welcome to Voices on Antisemitism, a free podcast series of the United States Holocaust Memorial Museum. I'm Daniel Greene. Every other week, we invite a guest to reflect about the many ways that antisemitism and hatred influence our world today. Here's Harvard Law School professor, Alan Dershowitz.

ALAN DERSHOWITZ:


I never wanted to write the book The Case for Israel. I wanted to write The Case for Peace, which I eventually did. I had to write The Case for Israel, even though nobody has to write The Case for Canada, or The Case for New Zealand, or The Case for France or [The Case for] England, because the case against Israel was being so prominently featured on American university campuses, and it was based on such ignorance that I had to get the liberal case for Israel out there based on facts. And when I did that it was seen immediately as an enormous threat to the hard left presence on campuses.

If you look at some of the cartoons that are being used against Israel, against Israeli leaders and supporters of Israel, most recently against me, the propaganda effort has changed. And instead of a conversation about Israel and the Palestinians, there is an attempt to dehumanize Israel and to demonize Israel. And Holocaust denial is increasing. Holocaust minimization is increasing. Holocaust comparativization is increasing. And education is critically important. When a Holocaust denier speaks on a college or university campus, I see that as an educational moment, as an opportunity to educate students, and instead of trying to ban the speaker, respond and educate.

It's good to be critical of Israeli policies, just like it's good to be critical of American policies. I'm no less a patriot because I'm critical of the Iraq war or other American policies. And I'm no less a Zionist because I'm critical of many Israeli policies. Even criticism of Zionism is perfectly acceptable intellectually. It's the double standard, the hyper-criticism, the unwillingness to find anything decent in Israel, that begins to blur the lines between criticism of Israel the state, and criticism of Israel, the Jew among the states.

When I speak on college campuses, and I speak on many, I get calls the next day always, almost in a whispered voice: "Thank you for speaking up."

And I ask, "Why don't you speak up?"

"Well, you know, we don't want to be unpopular with students. We don't want to get into controversial areas. We don't want to be politically incorrect."

It's appalling how irresponsible most American academics have been in the face of this well-organized campaign to turn our current generation of college students and our future leaders against Israel and against Jewish interests and values. We have the responsibility to stop it. We have the resources to stop it. We have the ability to stop it. And if we fail to respond to hate speech, it's our fault.

DANIEL GREENE:


Voices on Antisemitism is a free podcast series of the United States Holocaust Memorial Museum. Join us every other week to hear a new perspective on the continuing threat of antisemitism in our world today. To contribute your thoughts to our series, please call 888-70USHMM, or visit our Web site at www.ushmm.org. At that site, you can also listen to Voices on Genocide Prevention, a podcast series on contemporary genocide.
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Who needs the Medical examiner when the Brian Smith is "Clairvoyant"?

http://www.delmar.edu/news/deathinvestigation080803.html

August 8, 2003


Going…Going…Going Online This Fall
High demand spurs College’s Death Investigation Program to offer Internet courses worldwide

When Del Mar College began offering its Death Investigation Program two years ago, 33 students began taking one of the first three courses developed. Over 100 other local students had to put their name on a waiting list to enroll in the classes.

But a partnership that emerged nearly four years ago with the U.S. Congress, the Kitsap County Coroner’s Office in Washington State, the Nueces County Medical Examiners Office and local computer software company INDX, Inc. is now putting death investigation at the forefront on the Internet. This fall, Del Mar will begin offering its courses online to reach more students across the country–even around the world.

“Our program has grown exponentially during the past two years,” says John Graham, instructor of criminal justice. “And we expect even more growth when our online degree program is promoted internationally through the NOMIS Project.” Online courses the College will offer include Death Investigation I, Death Investigation II and the Legal and Social Aspects of Death and Dying.

The Network of Medicolegal Investigative Systems, known as NOMIS, is a computer program developed and owned by INDX, Inc. The company offered to modify NOMIS for the government to assist in the investigation of tracking incidences of death, including those caused by weapons of mass destruction and bioterrorism. The program will facilitate the collection, analysis and retrieval of data in several areas, including identification of missing/unidentified deceased persons; mass fatality victim identification; investigator training and certification; electronic death registration; evidence control and disposition; Emergency Room casualty tracking; military combat aid station tracking; contagious diseases and epidemics; AMBER Alert communications; serial homicides; among several others.

NOMIS will offer a comprehensive solution to the needs of medicolegal and law enforcement jurisdictions and provide a common national infrastructure that serves multiple agencies at all levels of government. National security, national defense, criminal justice, public health and disaster mitigation, response and recovery will all benefit from the application.

The partnership is sponsoring the deployment of the NOMIS Basic Death Investigation Web Service application this month with an anticipated in-depth testing date set for Aug. 8. The Web site, located at www.nomisproject.com, will also link to Del Mar’s Death Investigation Program.

Of the partnership, Graham says, “This marriage was made in heaven, not only for Del Mar College but for the entire nation.” He reiterates that under the agreement, NOMIS will provide worldwide instant access to the College’s Death Investigation Program while Del Mar will have perpetual access to data stored onsite for research purposes or educational needs. “This is a great deal for us.”
Graham says that in 2001, U.S. Congressman Solomon Ortiz successfully funneled a line item appropriation through the Department of Justice as part of the 2002 national budget to fund INDX, Inc.’s expansion of the NOMIS application’s abilities.

According to Graham, NOMIS was created using “what experts called an impossible amount of funding, only $300,000, to complete what normally takes millions of dollars.” Del Mar College and INDX, Inc. worked together and are now close to completing the second version of the application.

“Del Mar College has achieved a minor miracle with the funding received in the line item appropriation,” he notes. “We created a new degree, a national data collection program and retained the right to access data from that program. We could not afford to purchase this kind of powerful tool or build it without the dedication of College faculty with the Legal Professions and Computer Science Departments and Information Technology personnel, who all had a hand in making this a reality.”

Additionally, Del Mar Criminal Justice students tested the Alpha version of NOMIS using a simulated attack on the Port of Corpus Christi. Many fatalities were incorporated into the exercise so that students could pretend to be first responders to a central emergency command post.

“With no training, they were able to master the program and begin downloading data within five minutes,” Graham says. “This type of usability is of paramount importance. If this system had been available on 9-11, the process of recovery and identification may have been enhanced.”

Graham says that requests for entry into the Death Investigation Program continuously come from individuals across the nation. “Demand is high, but now that the program will be promoted on the NOMIS Project homepage, the Legal Professions Division is gearing up for an additional influx of requests,” he says.

“We’re literally calling medical examiners and investigators all over the country to recruit adjunct instructors to teach this fall’s online courses,” Graham adds. “I’ve even spoken to a forensic pathologist in Great Britain.”

“Del Mar College is the only institution of higher education that offers a degree program in Death Investigation,” notes Graham. “Combined with the national deployment of NOMIS, the number of requests for this degree are probably going to be beyond our immediate ability to respond. What a wonderful problem to have.”


###


Sidebar Story:


Death Investigation Student Currently Working in Field
Director of Morgue Services with Nueces County Medical Examiners Office close to finishing program

She only lacks taking five classes to complete Del Mar College’s Death Investigation Program. But as Alex Medina puts it, “The field is not for everyone.”

“You don’t know what work is going to be like from one day to the next,” says Medina, a criminal justice and death investigations major and the director of morgue services at the Nueces County Medical Examiners Office. “You deal with death every day, and you see people you have known, friends or someone you went to school with. You just don’t know who you’ll see until you pull the cover back.”
The Corpus Christi native enrolled in Death Investigations courses when the College’s Department of Legal Professions began offering the program in fall 2001. Medina says her extensive experience in healthcare, including clinical, administrative and emergency services have been beneficial as she’s worked through the program.

“I enrolled in the Death Investigation Program during its infancy,” she notes. “But the program is expanding and is great for students here in Corpus Christi.” She notes that the high employment demand in the field means graduates have opportunities to find positions all over the country.

Prior to returning to Corpus Christi three years ago, Medina joined the U.S. Navy and began serving as a corpsman and EMT (emergency medical technician) in 1987. The 34-year-old is a nationally registered EMT, a certified medical assistant and a licensed ambulance driver.

But, Medina’s fascination with forensics and work with several pathology groups over the years spurned her interest to enroll in the Death Investigation Program when she decided to go back to college. “I started taking 22 to 26 credit hours when I enrolled,” she says. “I also wanted to get my foot in the door and made myself known to Ric Ortiz, who’s the chief investigator in the county’s Medical Examiners Office and was one of the first adjunct instructors to teach courses in the new program.”

“During class tours of the facility, I made a point of meeting the forensic staff and kind of pushed my way in here,” she muses. “When a position became available, I applied for it and went through the same process as the other candidates. But my education and work experience was key to my getting the position.”

Medina says death investigations is very demanding--physically and psychologically. “People are fascinated as to why I chose this field, but I believe I am where I’m suppose to be at this time in my life. I find the work intriguing. It’s like solving a puzzle.”

She adds, “This field requires special people who can find the answers as to why or how someone died.”


-DMC-me

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No person should be forced to give up their right to an attorney.

The Fair Defense Project
Ensuring a Just and Accountable Judicial System by Protecting
Your Right to a Lawyer.

The Fair Defense Project at TCJC works to ensure that every person is treated equally in Texas’s criminal justice system, regardless of wealth. Every indigent person accused of a crime should be appointed competent legal representation promptly. No person should be forced to give up their right to an attorney.

The Fair Defense Project conducts local and statewide monitoring to document practices that may create obstacles for indigent defendants who need representation or that may significantly delay the appointment of a defense attorney to defendants. The Fair Defense Project also engages in administrative advocacy with the Texas Task Force on Indigent Defense and individual counties in order to promote improvements to the state’s delivery of indigent defense services.

P.O. Box 301587, Austin, TX 78703-0027 | tel. 512.441.8123 | info@criminaljusticecoalition.org

What is at issue here, however, is a different sort of creature, which might be ..........

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Stuston v. U.S. (94-8988), 516 U.S. 193 (1996)
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SUPREME COURT OF THE UNITED STATES
ANTHONY LEO STUTSON
94-8988 v.
UNITED STATES on petition for writ of certiorari to the united states court of appeals for the eleventh circuit

ALEXIS LAWRENCE, guardian and next friend on behalf of KEMMERLYN D. LAWRENCE, a minor

94-9323v.

SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY on petition for writ of certiorari to the united states court of appeals for the fourth circuit

Nos. 94-8988 and 94-9323. Decided January 8, 1996.

Justice Scalia , with whom Justice Thomas joins, I dissent because I believe that the dispositions in both No. 94-8988 and No. 94-9323 are improper extensions of our limited power to vacate without first finding error below.

It sometimes occurs that, after having considered the lower court decision and found error, an appellate court merely reverses or vacates and then remands--that is, it sets the judgment aside and sends the case back to the lower court for further proceedings, rather than entering or directing entry of judgment for the appellant or petitioner. That is the appropriate course whenever the finding of error does not automatically entitle the appellant or petitioner to judgment, and the appellate court cannot conduct (or chooses not to conduct) the further inquiry necessary to resolve the questions remaining in the litigation. Our books are full of suchcases, from Glass v. Sloop Betsey, 3 Dall. 6 (1794), and Clarke v. Russel, 3 Dall. 415 (1799), to Vernonia School Dist. 47J v. Acton, 515 U. S. ___ (1995), and Tuggle v. Netherland, 516 U. S. ___ (1995).

What is at issue here, however, is a different sort of creature, which might be called "no fault V&R": vacation of a judgment and remand without any determination of error in the judgment below. In our discretionary certiorari system of review, such an order has acquired the acronym "GVR"--for the Court grants certiorari, vacates the judgment below, and remands for further proceedings. [n.1] The question presented by today's cases is whether there is any limitation (other than the mandate "do what is fair") upon this practice. The Court's per curiam opinions answer "no"; I disagree.

Title 28 U.S.C. § 2106 provides that "[t]he Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." This facially unlimited statutory text is subject to the implicit limitations imposed by traditional practice and by the nature of the appellate system created by the Constitution and laws of the United States. The inferior federal courts (to say nothing of state courts) are not the creatures and agentsof this body--as are Masters, whose work we may reject and send back for redoing at our own pleasure. Inferior courts are separately authorized in the Constitution, see Art. I, §8; Art. III, §1, created by Acts of Congress, see, e.g., Judiciary Act of 1789, 1 Stat. 73; Evarts Act, Act of Mar. 3, 1891, 26 Stat. 826, and staffed by judges whose manner of appointment and tenure of office are the same as our own, see U. S. Const., Art. II, §2; Art. III, §1; 28 U.S.C. §§ 44 133, 134. Despite the unqualified language of §2106, we cannot, for example, "reverse" a judgment of one of these courts "and direct the entry" of a different judgment whenever we disagree with what has been done, but only when we can identify a controlling error of law. And I think we cannot "vacate" and "remand" in the circumstances here.

The Court today seeks to portray our "no fault V&R" practice as traditionally covering a kaleidoscopic diversity of situations. See No. 94-9323, at 3-4. That is in my view a misportrayal; the practice has always been limited to a few discrete categories of cases. It began, apparently, in situations calling forth the special deference owed to state law and state courts in our system of federalism. In Missouri ex rel. Wabash R. Co. v. Public Serv. Comm'n, 273 U.S. 126 (1927), for example, rather than find error on the basis of the federal constitutional claims raised, this Court set aside the judgment of the Missouri Supreme Court and remanded the case to that court for further proceedings so that it could consider the meaning and effect of a state statute that had been enacted after its judgment had been entered. We reasoned that "[w]hile this Court may decide these [state law] questions, it is not obliged to do so, and in view of their nature, we deem it appropriate to refer the determination to the state court." Id., at 131. In other words, we left it to the state court to decide the effect of the intervening event, rather than follow our usual practice of deciding that question for ourselves, see, e.g., Steamship Co. v. Joliffe, 2 Wall. 450, 456-458 (1865). See generally UnitedStates v. Schooner Peggy, 1 Cranch 103, 110 (1801) ("if, subsequent to the judgment [entered by a lower court], and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied"). Later cases took the same deferential approach to state courts when the intervening event consisted of one of our own opinions. See, e.g., State Tax Comm'n v. Van Cott, 306 U.S. 511 (1939). By 1945, we could state that it was "[a] customary procedure" for the Court "to vacate the judgment of [a] state court where there has been a supervening event since its rendition which alters the basis upon which the judgment rests, and to remand the case so that the court from which it came might reconsider the question in light of the changed circumstances." State Farm Mut. Automobile Ins. Co. v. Duel, 324 U.S. 154, 161 (1945). Similarly, where a federal court of appeals' decision on a point of state law had been cast in doubt by an intervening state supreme court decision, it became our practice to vacate and remand so that the question could be decided by judges "familiar with the intricacies and trends of local law and practice." Huddleston v. Dwyer, 322 U.S. 232, 237 (1944).

The "intervening event" branch of our "no fault V&R" practice has been extended to the seemingly analogous situation (though not one implicating the special needs of federalism) in which an intervening event (ordinarily a postjudgment decision of this Court) has cast doubt on the judgment rendered by a lower federal court or a state court concerning a federal question. See, e.g., Amer v. Superior Court of Cal., County of Los Angeles, 334 U.S. 813 (1948); Goldbaum v. United States, 348 U.S. 905 (1955); Henry v. City of Rock Hill, 376 U.S. 776 (1964). This is undoubtedly the largest category of "GVRs" that now exists. See, e.g., Exxon Corp. v. Youell, 516 U. S. ___ (1995); Kapoor v. United States, 516 U. S. ___ (1995); Edmond v. United States, 516 U. S. ___ (1995); Pacesetter Constr. Co. v. Carpenters 46Northern Cal. Ctys. Conference Bd., 516 U. S. ___ (1995); Doctor's Assocs., Inc. v. Casarotto, 515 U. S. ___ (1995); Calamia v. Singletary, 514 U. S. ___ (1995). We regularly hold cases that involve the same issue as a case on which certiorari has been granted and plenary review is being conducted in order that (if appropriate) they may be "GVR'd" when the case is decided. More recently, we have indulged in the practice of vacating and remanding in light of a decision of ours that preceded the judgment in question, but by so little time that the lower court might have been unaware of it. See, e.g., Grier v. United States, 419 U.S. 989 (1974). These applications of "no fault V&R" have nothing to do with federalism, but they are appropriate to preserve the operational premise of a multitiered judicial system (viz., that lower courts will have the first opportunity to apply the governing law to the facts) and to avoid the unseemliness of holding judgments to be in error on the basis of law that did not exist when the judgments were rendered below. They thus serve the interests of efficiency and of concern for the dignity of state and lower federal tribunals.

An entirely separate branch of our "no fault V&R" jurisprudence, but again one that originates in the special needs of federalism, pertains to decisions of state supreme courts that are ambiguous as to whether they rest on state law or federal law grounds. Rather than run the risk of improperly reversing a judgment based on state law, we adopted the practice of vacating and remanding so that the state court could make the reasons for its judgment clear. See, e.g., Minnesota v. National Tea Co., 309 U.S. 551 (1940); Department of Mental Hygiene of Cal. v. Kirchner, 380 U.S. 194 (1965). [n.2]

We have "GVR'd" with increasing frequency in recent years on the basis of suggestions or representations made by the Solicitor General. Some of these cases are nothing more than examples of the "intervening event GVR" discussed above, the Solicitor General pointing out that a case or statute has intervened since the judgment below. See, e.g., Woods v. Durr, 336 U.S. 941 (1949); Altiere v. United States, 382 U.S. 367 (1966). We have also announced "no fault GVRs," however, when there has been no intervening development other than the Solicitor General's confession of error in the judgment. That is a relatively new practice. As recently as 1942 a unanimous Court (two Justices not participating) wrote the following:

"The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. . . . Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of the parties . . . ." Young v. United States, 315 U.S. 257, 258-259 (1942).

Cf. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. ___ (1994) (setting aside of a validjudicial judgment should not turn upon agreement of the parties). Many of the early "GVRs" based upon the Government's confession of error appear not to have been "no fault V&Rs" at all, but rather summary decisions on the merits, with remand for further proceedings. See, e.g., Chiarella v. United States, 341 U.S. 946 (1951) ("[u]pon consideration of the record and the confession of error by the Solicitor General," remanding to the District Court for resentencing) (emphasis added); Penner v. United States, 399 U.S. 522 (1970) ("[o]n the basis of a confession of error by the Solicitor General and of an independent review of the record," remanding to the District Court "with instructions to dismiss the indictment").

Our recent practice, however, has been to remand in light of the confession of error without determining the merits, leaving it to the lower court to decide if the confession is correct. As late as 1981, the current Chief Justice, joined by Justice White, objected to this practice. See Mariscal v. United States, 449 U.S. 405, 407 (1981) (
Rehnquist, J., dissenting) ("I harbor serious doubt that our adversary system of justice is well served by . . . routinely vacating judgments which the Solicitor General questions without any independent examination of the merits on our own"). I agree with that position. The practice is by now well entrenched, however. See, e.g., Reed v. United States, 510 U. S. ___ (1994); Ramirez v. United States, 510 U. S. ___ (1994). It may be considered a separate category of "no fault V&R."

Finally (and most questionably) we have in very recent years "GVR'd" where the Solicitor General has not conceded error in the judgment below, but has merely acknowledged that the ground, or one of the grounds, on which the lower court relied was mistaken. See, e.g., Alvarado v. United States, 497 U.S. 543 (1990); Chappell v. United States, 494 U.S. 1075 (1990). That is in my view a mistaken practice, since we should not assume that a Court of Appeals has adopted a legal position only because the Government supported it. Four Justices now sitting on the Court have disapproved this sort of "GVR." See Alvarado, supra, at 545 (
Rehnquist, C. J., joined by O'Connor, Scalia, and Kennedy, JJ., dissenting). [n.3]

Today's cases come within none of these categories of "no fault V&R," not even the questionable last one. In No. 94-8988, the decision "in light of" which we vacate the judgment and remand, Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), had been on the books for well more than a year before the Eleventh Circuit announced the judgment under review, and for almost two years before that court denied rehearing. Moreover, the parties specifically argued to the Court of Appeals the question whether Pioneer established the standard applicable to petitioner's claim of "excusable neglect" under Federal Rule of Appellate Procedure 4(b), with the United States disagreeing with petitioner and taking the position that Pioneer was not controlling. The Eleventh Circuit ruled against petitioner on the merits of his claim; its one sentence order contained neither a reference to Pioneer nor any suggestion that the court viewed the case as turning on which party's proffered standard was applied.

The United States has now revised its legal position and--though it makes no suggestion that the Court of Appeals' judgment was incorrect--is of the view that Pioneer does establish the standard governingpetitioner's claim. But the fact that the party who won below repudiates on certiorari its position on a particular point of law does not give rise to any "intervening," postjudgment factor that must be considered. The law is the law, whatever the parties, including the United States, may have argued. As described above, we have sometimes "GVR'd" where the Government has, while still supporting the judgment in its favor, conceded the error of a legal point on which the lower court explicitly relied. As I have explained, see supra, at 7-8, in my view even that practice denies valid judgments the respect to which they are entitled. But the "GVR" in the present case goes still further. We do not know in this case whether the Eleventh Circuit even agreed with the Government's position that has now been repudiated; for all we know, the court applied Pioneer and found against petitioner under that standard. The judgment is declared invalid because the Eleventh Circuit might (or might not) have relied on a standard (non Pioneer) that might (or might not) be wrong, that might (or might not) have affected the outcome, and that the Eleventh Circuit might (or might not) abandon (whether or not it is wrong) because the Government has now abandoned it. This seems to me beyond all reason.

The Court justifies its setting aside of the judgment on the ground that "we [do not] place an excessive burden on [the Eleventh Circuit], relative to [petitioner's] liberty and due process interests, by inviting it to clarify its ambiguous ruling." No. 94-8988, at 3. Vacating for ambiguity may be justifiable, as I have noted, when the ambiguity calls into question our very power to take and decide the case, see supra, at 5, and n. 2. But where that power is (as it is here) beyond doubt, it seems to me quite improper to vacate merely in order to get a better idea of whether the case is "worth" granting full review. If this is appropriate with respect to court of appeals' summary dispositions of criminal cases, I see no reason why it is not appropriate with respect to criminal dispositions accompanied by opinions as well. Or, forthat matter, why it is not appropriate for civil cases. "GVR'd for clarification of _____" should become a common form of order, drastically altering the role of this Court. In my view we have no power to make such a tutelary remand, as to a schoolboy made to do his homework again. [n.4] The Court insists that declining to remand for clarification would risk "immunizing summary dispositions . . . from our review," No. 94-8988, at 3. That is not so. It is fully within our power to review this case, and any other case summarily decided below, by granting certiorari and proceeding to consider the merits; or indeed, where the circumstances warrant, to summarily reverse. Cf. Hellman, "Granted, Vacated, and Remanded"--Shedding Light on a Dark Corner of Supreme Court Practice, 67 Judicature 389, 391-392 (1984) (noting that in the 1970's as the Court's "GVR" practice "increased far beyond what it had been in earlier years," its use of summary reversal based on intervening precedents decreased dramatically).

In No. 94-9323, the Court again "GVRs" because the Government has changed a legal position: the Commissioner of Social Security informs us that she now agrees with petitioner on a preliminary point of law that the Court of Appeals found in the Government's favor. And here again, respondent does not concede that the judgment below was in error, for she "ha[s] not . . . reached a firm conclusion" as to her position on the subsequent point of law that will (if her recantation on the preliminary point is accepted) control the outcome of the case. Brief for Respondent in No. 94-9323, p. 13. [n.5] There is, however, a special factor in this second case: respondent is an agency head, whose view on the legal point in question is in some circumstances entitled to deference, see Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). If it were clear that respondent's change in position were entitled to deference, I would have no problem with the "GVR"; the new position would then constitute an intervening postjudgment factor whose effect the Court of Appeals should be allowed to consider. But even if we allow deference to an agency view first expressed in pending litigation (as some think we should not, see Anthony, Which Agency Interpretations Should Bind Citizens and the Courts?, 7 Yale J. Reg. 1, 60-61 (1990); cf. Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 1023 (1992)), surely a decent concern for those litigating against the Government and for our lower court judges should induce us to disregard, for Chevron purposes, a litigating position first expressed at the certiorari stage. The United States is the most frequent, and hence the most calculating, of our litigants. If we accord deference in the circumstances here, we can expect the Government to take full advantage of the opportunity to wash out, on certiorari, disadvantageous positions it has embraced below; and we can expect it to focus less of its energy upon getting its position "right" in the Courts of Appeals.

The Court, however, thinks it unnecessary to decide the deference question. It is enough, as the Court sees it, that its summary review has led it to "believe that [the] agency interpretation is reasonably probably entitled to deference and potentially determinative." No. 94-9323, at 9. I do not agree. It seems to me our "intervening event GVRs" should not be extended to the situation where (1) the intervening event consists of aparty's going back on what it argued to the court of appeals, and (2) it is not even certain that the change in position is legally cognizable. That seems to me to accord inadequate respect to the work of our colleagues below. Moreover, it is not clear to me that the question before us (should an agency change of position at the certiorari stage be accorded deference?) can even be reached by the Court of Appeals. Surely we do not expect the Court of Appeals to declare our vacation and remand invalid. Thus, the Court of Appeals will have before it the somewhat different question whether the agency change of position before it is entitled to deference. I suppose it may conclude that, since a change of position on certiorari is not entitled to deference, a change of position on a remand triggered by change of position on certiorari is not entitled to deference--but that would assuredly be a convoluted holding. The question of what is permissible on certiorari seems to me peculiarly within the domain of this Court. Since we are in doubt on the deference point in the present case, we should either deny the petition, or grant it and have the deference point argued.

The Court's failure to comprehend why it should make any difference that the Government's changed litigating position may not be entitled to deference, see No. 94-9323, at 9, displays a lamentable lack of appreciation of the concept of adding insult to injury. It is disrespectful enough of a lower court to set its considered judgment aside because the Government has altered the playing field on appeal; it is downright insulting to do so when the Government's bait and switch performance has not for a certainty altered any factor relevant to the decision. In that situation, at least, we should let the Government live with the consequences of its fickleness or inattention. The Court claims that it would "defeat the purpose of GVR'ing" to determine the deference issue on the merits, since that issue is "based on a circumstance . . . that will not be present in any other case brought under the statute at issue." Ibid. That is trueenough (barring the unlikely event that the Government in a later case under this very statute again switches its position at the certiorari stage). But the issue of whether Chevron deference should be accorded to a certiorari stage switch of litigating position is not at all unique to the individual case or bound up with the underlying statute. It always arises, of course, in an individual case involving a particular statute, as do most questions of law. But the issue itself is thoroughly generalizable, and of general importance. In any event, I do not urge that we determine the deference issue on the merits; my vote in these cases is to deny the petitions. Finally, I must remark upon the Court's assertion that we issued "just such a GVR order last Term, without recorded dissent," No. 94-9323, at 10, citing Schmidt v. Espy, 513 U. S. ___ (1994): It is not customary, but quite rare, to record dissents from grants of certiorari, including "GVRs." It would be wrong to conclude from the unsigned order in Schmidt that the vote to "GVR" was unanimous, or even close to unanimous. Thus, Schmidt does not demonstrate that bait and switch deference "GVRs" are an accepted practice; but the fact that Schmidt was apparently the first ever such "GVR," combined with the fact that the Government is back one Term later for another helping, demonstrates the accuracy of my prediction that the Solicitor General will be quick to take advantage of this new indulgence.

What is more momentous than the Court's judgments in the particular cases before us--each of which extends our prior practice just a little bit--is its expansive expression of the authority that supports those judgments. It acknowledges, to begin with, no constitutional limitation on our power to vacate lower court orders properly brought before us. No. 94-9323, at 3. This presumably means that the constitutional grant of "appellate Jurisdiction" over "Cases . . . arising under [the] Constitution [and] Laws of the United States," Art. III, §2, empowers the Court to vacate a state supremecourt judgment, and remand the case, because it finds the opinion, though arguably correct, incomplete and unworkmanlike; or because it observes that there has been a postjudgment change in the personnel of the state supreme court, and wishes to give the new state justices a shot at the case. I think that is not so. When the Constitution divides our jurisdiction into "original Jurisdiction" and "appellate Jurisdiction," I think it conveys, with respect to the latter, the traditional accoutrements of appellate power. There doubtless is room for some innovation, particularly such as may be necessary to adapt to a novel system of federalism; but the innovation cannot be limitless without altering the nature of the power conferred.

Not only does the Court reject any constitutional limitation upon its power to vacate; it is unwilling to submit to any prudential constraint as well. Even while acknowledging the potential for "unfair[ness] or manipulat[ion]" and professing to agree that "our GVR power should be exercised sparingly," No. 94-9323, at 4, 10, the Court commits to no standard that will control that power, other than that cloak for all excesses, "the equities," id., at 4; see id., at 10, 11-12; No. 94-8988, at 3. We may, as the Court now pronounces, set aside valid judgments not merely when they are wrong, not merely when intervening events require that someone (either the lower court or we) reconsider them on new facts or under new legal criteria, not merely when it is ambiguous whether we have power to review them, not merely when the United States concedes that the judgment below (or one of the points of law relied upon below, or even one of the points of law possibly relied upon below) is wrong; but whenever there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration." No. 94-9323, at 4. The power to "revis[e] and correc[t]" for error, Marbury v. Madison, 1 Cranch 137, 175 (1803), has become a power to void for suspicion. Comparing themodest origins of the Court's "no fault V&R" policy with today's expansive dénouement should make even the most Pollyannish reformer believe in camel's noses, wedges, and slippery slopes.

The Court justifies its approach on the ground that it "alleviates the potential for unequal treatment that is inherent in our inability to grant plenary review of all pending cases raising similar issues." No. 94-9323, at 4 (internal quotation marks omitted). I do not see how it can promote equal treatment to announce a practice that we cannot possibly pursue in every case. If we were to plumb the "equities" and ponder the "errors" for all the petitions that come before us--if we were to conduct, for example, in all cases involving summary decisions, today's balancing of the "burden" to the Court of Appeals against the litigant's "interests" in having clarification of the ruling, see No. 94-8988, at 3, or today's calculation of "the overall probabilities and equities," No. 94-9323, at 10--we would have no time left for the cases we grant to consider on the merits. Of course we do not purport to conduct such inquiries, not even the basic one of whether the decision below is probably in "error"--which is why we insist that our denial of certiorari does not suggest a view on the merits, see, e.g., Teague v. Lane, 489 U.S. 288, 296 (1989); Singleton v. Commissioner, 439 U.S. 942 (1978) (Stevens, J., respecting the denial of the petition for writ of certiorari). Moreover, even if we tried applying the Court's "totality of the circumstances" evaluation to all the petitions coming before us, we would be unlikely to achieve equal treatment. Such a plastic criterion is liable to produce inconsistent results in any series of decisions; it is virtually guaranteed to do so in a series of decisions made without benefit of adversary presentation (whether we should "GVR" is rarely briefed, much less argued--as it has not been here) and announced without accompaniment of a judicial opinion (we almost never give reasons as the Court has done today). The need to afford equal treatment argues precisely againstthe "totality of the circumstances" approach embraced by the Court, and in favor of a more modest but standardized "GVR" practice.

Henceforth, I shall vote for an order granting certiorari, vacating the judgment below without determination of the merits, and remanding for further consideration, only (1) where an intervening factor has arisen that has a legal bearing upon the decision, (2) where, in a context not governed by Michigan v. Long, 463 U.S. 1032 (1983), clarification of the opinion below is needed to assure our jurisdiction, and (3) (in acknowledgment of established practice, though not necessarily in agreement with its validity) where the respondent or appellee confesses error in the judgment below. (I shall not necessarily note my dissent from "GVRs" where those conditions do not exist.) As I have discussed, neither of the present cases meets these standards. Accordingly, I respectfully dissent from today's orders and would deny both petitions.

Notes

1 I emphasize that what is at issue here is our power to set aside a valid judgment--not, as Justice Stevens' concurrence would have it, "our discretionary authority to manage our certiorari docket." Ante, at 1. We do the latter by accepting or declining review. But "[w]henever this Court grants certiorari and vacates a court of appeals judgment in order to allow that court to reconsider its decision . . . , the Court is acting on the merits." Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25-26 (1978) (Stevens, J., dissenting) (emphasis added). Thus, today's orders go far beyond what Justice Stevens now refers to as "administration of [our certiorari] docket." Ante, at 1.

2 In Michigan v. Long, 463 U.S. 1032 (1983), we largely supplanted this policy with the rule that state court decisions discussing federal law will be presumed to be based on federal law unless thecontrary is clear from the face of the opinion. Id., at 1037-1044; see also Arizona v. Evans, 514 U. S. ___, ___ ___ (1995) (reaffirming this approach). But cf. Capital Cities Media, Inc. v. Toole, 466 U.S. 378 (1984) (post Long decision vacating and remanding for clarification of state supreme court decision rendered withoutopinion).

3 The Court misdescribes my position when it states that I would limit "GVRs" "based on confessions of error that do not purport to concede the whole case" to "cases in which the confession of error concerns a `legal point on which the lower court explicitly relied.' " No. 94-9323, at 8 (quoting infra, at 9). Both the text above and the sentence immediately following the phrase that the Court quotes from my dissent, see infra, at 9, make my position clear. The line of distinction I would draw--and the one long established in our practice--is between a respondent's concession of error in the lower court's judgment and a respondent's concession of error that goes not to the judgment but merely to an aspect of the reasoning below or of respondent's argument below.

4 Netherland v. Tuggle, 515 U. S. ___ (1995), upon which the Court relies, see No. 94-9323, at 6-7, is not to the contrary. That was not a "no fault V&R," but a reversal of the lower court for abuse of discretion in its entry of a stay order.

5 Because the Commissioner is not prepared to say that she disagrees with petitioner as to the proper disposition of this case, it is questionable whether any case or controversy subsists. Quite apart from the other difficulties with the course the Court has chosen, itseems to me we should not permit the Commissioner to trouble the Fourth Circuit again until she makes up her mind on this issue.


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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-1100-06

JAMES THOMAS LAPOINTE, Appellant


v.


THE STATE OF TEXAS


ON APPELLANT'S AND STATE'S

PETITIONS FOR DISCRETIONARY REVIEW

FROM THE THIRD COURT OF APPEALS

WILLIAMSON COUNTY

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

O P I N I O N


Does the rule requiring a "hearing" before determining whether to admit evidence of the alleged victim's past sexual history contemplate an adversarial proceeding? And if it does, and if the trial court fails to afford such a proceeding, may the appellate court order a retrospective hearing? We answer both of these questions "yes," and finding that the trial court conducted the retrospective hearing properly, we affirm the judgment of the court of appeals.

I. BACKGROUND

Appellant was convicted of a variety of offenses committed against his estranged wife: one count of aggravated kidnapping, one count of assault family violence (second offense), and three counts of aggravated sexual assault. At trial, defense counsel sought to cross-examine the victim regarding her prior sexual history for the purpose of "exploring a bias or motive for testifying." Defense counsel told the trial judge that he believed the victim had "engaged in sex with multiple partners at various times." The State objected on the basis of Texas Rule of Evidence 412. The trial judge decided to address the admissibility issue in an in camera hearing where only the judge and the victim were present. The judge specifically declined to allow defense counsel to question the witness for the purpose of making a bill of exception, but the trial judge did offer to ask the victim any questions the defense wished to submit.

After the prosecution's direct examination of Nurse Kathleen Gann, the defense sought to cross-examine her on the victim's prior sexual history. Again, the trial judge refused to permit defense questioning of the witness for the purpose of creating a bill of exception. Instead, the trial judge adhered to the same procedure used with the victim: defense counsel submitted questions and the hearing was held with only the trial judge and the witness being present. Defense counsel requested that the trial judge inquire about "deep vaginal bruising" and whether this bruising was consistent with the use of "sex toys" and whether the victim had a history of sex-toy use with the defendant. When asked for clarification, defense counsel said he specifically wanted to know if the victim engaged in sex with a particular person and "used an object that was deeply plunging" into her sex organ.

Defense counsel was permitted to make a bill of exception regarding certain other matters with some relevance to this discussion. A portion of a medical report was read into the record, and later the entire report was submitted as an exhibit. The report indicated that the victim suffered from bipolar disorder and had a problem with alcohol.

Appellant complained on appeal that the trial court erred in excluding defense counsel from the in camera hearings. The court of appeals agreed, holding that the trial court's procedure violated both Rule 412 and the Confrontation Clause of the United States Constitution, and deprived appellant of his constitutional right to the effective assistance of counsel. (1) Concluding that the trial court's errors "prevented the development of a record on which [the court] might determine that the error was harmless beyond a reasonable doubt," the court of appeals reversed the trial court's judgment and remanded the case for a new trial. (2)

After the State filed a motion for rehearing, the court of appeals withdrew this opinion and substituted a new opinion. (3) In the new opinion, the court of appeals altered the remedy, choosing instead to abate the appeal and remand the case for a retrospective in camera hearing that permitted the presence of the parties and the questioning of the witnesses by the parties' attorneys. (4)

On the day the hearing was scheduled by the trial court, appellant requested a continuance to prepare. The trial court granted a continuance as to the victim but denied the continuance with respect to the nurse because she currently lived out-of-state and the prosecution had produced her for the hearing. Defense counsel was able to question Nurse Gann about any knowledge she had acquired about the victim's past sexual history, but the trial judge prohibited certain questions that he perceived had nothing to do with Rule 412. These latter, prohibited questions included asking (1) whether the victim took a certain medication prescribed for bipolar disorder, (2) the symptoms of bipolar disorder, including sexual activity, (3) whether the victim ever conveyed that she had been suicidal, and (4) whether the victim mentioned any custody issues regarding her son.

At the continued hearing, defense counsel was given wide latitude in cross-examining the victim. The trial judge overruled all but two of the prosecutor's objections. In the first sustained objection, the trial judge prohibited defense counsel from having the victim read from a medical report that had been entered as an exhibit because the judge believed that the exhibit spoke for itself. The second sustained objection was to questions relating to the victim's alcohol use. (5)

After cross-examining the victim, defense counsel requested that Gann be recalled as a rebuttal witness. The trial judge initially denied the request, but he amended the ruling to allow defense counsel to submit proposed questions that the trial judge would review to determine whether to go through the time and expense of recalling the out-of-state witness. No questions were ever submitted.

When the court of appeals received the case back on appeal, appellant advanced several arguments relating to the retrospective hearing. He argued that the trial court had no jurisdiction to conduct the hearing because a petition for discretionary review was pending in this Court, that the trial court erred in prohibiting some of defense counsel's questions, and that the trial court erred in refusing to allow defense counsel to recall Nurse Gann. (6) The court of appeals rejected all of these claims. It held that the petition for discretionary review was not proper because the abatement order was interlocutory, that the trial court properly limited the hearing to the victim's past sexual history, and that appellant failed to preserve for review any issue with regard to recalling the nurse. This last claim was rejected because appellant failed to submit any questions and because his original motion for continuance did not specify "what records he was seeking, how those records would be useful, or whether he could have obtained those records for the subsequent hearing" involving the victim. (7) After this discussion, the court of appeals concluded that the trial court's error in excluding the defendant and his counsel from the in camera hearings at trial was cured by the two-part retrospective hearing. (8) Addressing the merits of the Rule 412 issue, the court of appeals held that appellant failed to elicit any admissible evidence at the retrospective hearing. (9) Addressing and rejecting appellant's other points of error, the court of appeals then affirmed the conviction. (10)

Both parties petitioned for discretionary review. We granted appellant's first and third grounds for review and all four of the State's grounds. In his first ground, appellant claims that a retrospective hearing was not a proper remedy for the trial court's error in refusing to conduct a proper in camera hearing at trial. In his third ground, he claims that the trial judge did not conduct the retrospective hearing properly, because some questions were disallowed and because he was neither granted a continuance with respect to the nurse nor permitted to recall her at the second part of the hearing. (11) In its first two grounds for review, the State complains that the court of appeals failed to address its arguments that appellant failed to preserve any constitutional claim at trial. In its third and fourth grounds, the State contends that the court of appeals erred in holding that Rule 412 requires that the parties be present and that counsel be permitted to question the witnesses.

II. ANALYSIS

A. Rule 412's in camera hearing

Rule 412(c), which sets forth the procedures for determining the admissibility of evidence of prior sexual history, provides:

Procedure for Offering Evidence. If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim's past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury. (12)


The court of appeals's interpretation of Rule 412 is based, in part, on the language of its federal counterpart. (13) The court of appeals observed that the federal rule explicitly confers on the parties a right to participate in the in camera hearing and reasoned that the same was true of the Texas rule because the state rules of evidence are patterned after the federal rules. (14) The State points out that, unlike the federal rule, the state rule contains no explicit direction to include the parties in the in camera hearing and argues that the textual difference between the federal and state rules calls for a divergent interpretation.

But both arguments flow from a faulty premise: the assumption that Texas's Rule 412 was patterned after its federal counterpart. Federal Rule 412 was not a part of the Federal Rules of Evidence when those rules were first enacted. Rather, it was added by Congress in 1978. (15) Texas had enacted its own "rape shield" statute three years earlier, in 1975. (16) That statute included what was clearly the precursor to Rule 412(c), with nearly identical wording. (17) Because Rule 412(c) was not patterned after its federal counterpart, a comparison of the wording is, at best, of limited value.

The difference between the federal and state rules aside, the State contends that the absence of explicit direction in the Texas rule to include the parties in the in camera hearing is significant. The State observes contrasting language in Texas Rule of Evidence 508 that requires the parties to be excluded from an in camera proceeding. (18) The court of appeals cited this provision in support of its holding, (19) and indeed, it could be argued that, if this Court wished to exclude the parties from a Rule 412 in camera hearing, we could have explicitly said so. The State contends, however, that Rule 412's silence indicates an intent to confer discretion upon the trial court in determining whether to admit the parties to the hearing while Rule 508 mandates that the parties be excluded. But there is another difference between Rule 412 and Rule 508: the in camera procedure in Rule 412 is referred to as a "hearing." Hearings are ordinarily adversarial. There are many situations in which an in camera procedure is clearly intended to take place without the parties, but typically that procedure is referred to as an in camera "inspection," "review," "showing," "determination" or, in the case of Rule 508, "disclosure." (20) Rule 412 aside, other situations in which the in camera procedure is specified as a "hearing" appear to contemplate the attendance of the parties. (21) And in the child-custody arena, one statute explicitly grants the trial judge discretion to determine whether to allow a party in an "in chambers" interview with the child. (22) In view of these things, we do not find the State's contention regarding Rule 412's language to be particularly persuasive.

What we do find persuasive, however, is this Court's interpretation of the precursor statute, §21.13. In Allen v. State, we upheld the constitutionality of this provision against a Confrontation Clause challenge. (23) In doing so, we discussed a North Carolina decision, State v. Fortney, which upheld its own rape-shield provision. (24) We quoted extensively from the Fortney opinion's language, which included a statement that past sexual history could be litigated at "an in camera hearing where opposing counsel may present evidence, cross-examine witnesses, and generally attempt to discern the relevance of proffered testimony in the crucible of an adversarial proceeding away from the jury." (25) We commented that, while the North Carolina statute "is not totally like §21.13, it is similar in many respects and the language in Fortney is here instructive." (26) After discussing Fortney, we further stressed the importance of balancing the victim's privacy interests with the confrontation right of the defendant by having the trial court hold a hearing that gives the defendant the opportunity to demonstrate the admissibility of the evidence:

The constitutional right to confront adverse witnesses is fundamental and is of such importance that a State's interest in protecting a certain class of witnesses from embarrassment must fall before the right of confrontation and cross-examination. Thus a statute that purports to prohibit completely the introduction of the victim's consensual sexual activity with persons other than the defendant is unconstitutional unless given a judicial gloss requiring a hearing out of the jury's presence so that the defendant, upon motion, may be given an opportunity to demonstrate that due process requires the admission of such evidence because probative value in the context of that particular case outweighs its prejudicial effect on the prosecutrix. (27)


In making these comments, we cited the New Hampshire case of State v. Howard. (28) A review of Howard reveals that our comments were a close paraphrase of the language in that case. (29) The Howard opinion went on to more fully describe the procedure to be followed. (30) The Supreme Court of New Hampshire explained that the victim's right to privacy was protected "at least to the extent that hearings held on the admissibility of the victim's prior sexual activity may, upon request of the victim and in the exercise of sound discretion by the trial justice, be closed to those not party to the proceeding. Such pretrial procedures enable the court to balance and safeguard the rights of all the parties as applied to the facts of a particular case and avoid unnecessary prejudice to either the victim or the accused." (31) From the comments in Allen, and its reliance on Fortney and Howard, we conclude that the Allen decision construed §21.13 narrowly to avoid a constitutional violation and that, under this narrowing construction, the trial court was empowered to exclude spectators, but not the parties, from the in camera admissibility hearing. (32)

Because Rule 412 essentially lifted the pertinent language from §21.13, Allen's interpretation of the statute logically applies to the rule as well. Moreover, Allen was decided just two weeks before the adoption of the Texas Rules of Criminal Evidence, of which Rule 412 was a part, and the Court even mentioned the proposed rules elsewhere in the opinion. (33) Given those circumstances, we believe this result was likely the Court's intent in patterning Rule 412(c) on the statutory language. (34)

The State also argues that the policy interest behind Rule 412 of protecting the victim's privacy requires interpreting the rule to allow the trial court to exclude the defendant and his attorney from the hearing. But, as we recognized in Allen, the victim's privacy interest must be balanced against the defendant's right to confrontation. Rule 412 balances those interests by closing the hearing to spectators, so that only a minimum number of people - the witness, the parties and their attorneys, the judge, and the court reporter - are privy to the information revealed.

We conclude that the in camera proceeding contemplated by Rule 412 is an adversarial hearing at which the parties are present and the attorneys are permitted to question witnesses. We overrule the State's third and fourth grounds for review. Given our disposition of those grounds, we need not reach the State's first two grounds relating to the preservation of constitutional error, and those are dismissed.

B. The proper remedy

Texas Rule of Appellate Procedure 44.4 provides:

Remediable Error of the Trial Court.


(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:


(1) the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and


(2) the trial court can correct its action or failure to act.


(b) Court of appeals direction if error remediable. If the circumstances described in (a) exist, the court of appeals must direct the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred. (35)


Under this rule, if a trial court's error prevents the proper presentation of the case to the appellate court and that error can be remedied (without requiring an entire new trial or new punishment hearing), then the appellate court must direct the trial court to remedy the error so that the appellate court will be in a position to evaluate the appeal properly. We have applied this rule to a trial court's refusal to permit a defendant to make an offer of proof, (36) a trial court's failure to conduct a proper Batson hearing, (37) and a trial court's failure to make findings of fact that it was required by law to make. (38)

Appellant attempts to distinguish his case from those cases by claiming that the present case involves the denial of counsel at a critical stage of trial. In making this claim, he relies upon several cases that hold that the complete denial of counsel at a critical stage of trial results in a presumption of prejudice. (39) We need not address whether the trial court's conduct in the present case constituted the "complete denial of counsel at a critical stage of the proceedings," however, because the principle appellant recites is simply inapplicable. There is a difference between saying that the prejudice suffered warrants some sort of remedy and saying what kind of remedy must be afforded. For example, a complete denial of counsel that occurs only at the punishment proceedings would be presumed prejudicial, but that presumption does not mean the defendant would be entitled to an entire new trial (i.e. on both guilt and punishment). Because the scope of the prejudice was clearly limited to the punishment phase, the defendant in this hypothetical would be entitled only to a new punishment hearing. Likewise, when the trial court errs in refusing to permit the defendant to fully litigate the admissibility of a particular type of evidence, the scope of the prejudice flowing from such an error is limited. That the defendant was denied the ability to properly litigate admissibility does not mean that the trial court's admissibility determination was incorrect. What it does mean is that the appellate court may not be able to intelligently determine the correctness of the trial court's admissibility determination. The solution, then, is to afford the defendant the opportunity to perfect the record, which then enables the appellate court to review the admissibility issue properly.

Appellant also relies upon state cases that hold that the supplementation rules cannot be used to replay a hearing or to create a record that was never made. (40) He contends that Hutchinson stands for the proposition that a party cannot "replay" a hearing that was already held in order to "fix" the hearing. He further cites that Ramirez, Solomon, and Berry for the proposition that an appellate court cannot use the rules of appellate procedure to create a new record.

Appellant fails to appreciate the difference between the pertinent provisions in Rule 34, which relate to supplementation, and those in Rule 44, which provide a remedy for error. Appellant is correct that the supplementation rules, Rules 34.5(c) and 34.6(d), cannot be used to create a new record. (41) Those rules exist to allow appellate courts to supplement the appellate record with matters that were part of the trial record but, for whatever reason, have not been forwarded to the appellate court. (42) Rule 44.4, by contrast, is designed to effect the creation of a new record. When a trial court has erroneously withheld information necessary to evaluate a defendant's claim on appeal (e.g. failure to file required findings of fact) or has prevented the defendant from submitting information necessary to evaluate his claim (e.g. refusing to permit an offer of proof), the appellate court is directed to step in and order the trial court to correct the situation. The key to Rule 44.4 is that there must be an error that the appellate court can correct. (43) And if the error in question is subject to the usual rules of procedural default, then it must have been preserved by objection. (44) The supplementation rules found in Rule 34 do not require any showing of error, but that is because their purpose is much more limited than the remedial function of Rule 44.4.

Appellant reads the state "supplementation" cases too broadly. All of the cases upon which he relies trace their lineage to Berry. (45) But that case recognized the distinction between correcting an error and trying to inject matters into the record where no error was present. With regard to findings of fact, we explained that an appellate court can order a trial court to make findings of fact when the law imposes an affirmative duty to do so, but an appellate court cannot order such findings when there is no legal requirement. (46) Berry in turn relied upon Williams. (47) In Williams, this Court expressly added a caveat to its holding that the supplementation rules cannot be used to create a new record (involving in that case the court reporter's failure to record certain proceedings):

The foregoing discussion does not mean that a defendant can never obtain relief if the court reporter fails to record certain proceedings. But, to preserve error on such a claim, a defendant must object before the trial court to the court reporter's failure to do so. (48)


In other words, the defendant must show error upon which an appellate court can act, which error can then be remedied by an order under Rule 44.4. (49)

Here, the court of appeals determined that appellant was deprived of his right to participate in the rule 412 hearing. The purpose of allowing defense participation in the hearing is to give the defendant the opportunity to substantiate his claim that the victim's prior sexual history is admissible. The proper remedy was to abate the appeal and remand the case to the trial court to afford the defendant an adversarial hearing in which he would have an opportunity to make that showing. Once that was done, the appellate court would then be in a position to intelligently review the issue of whether the prior sexual history evidence was admissible. The court of appeals followed this procedure in the present case, and it was entirely correct in doing so. Appellant's first ground for review is overruled.

C. The hearing

Finally, we address appellant's contention regarding how the hearing was conducted. Defense counsel's questions regarding child custody, the victim's alcohol use, and whether the victim was taking medication for bipolar disorder were not inquiries into the victim's past sexual history and did not fall within the trial court's order at trial prohibiting questioning by defense counsel. Indeed, some evidence relating to these topics was elicited in front of the jury or in an offer of proof. Those questions therefore fell outside the scope of the court of appeals's remand order, and the trial court did not err to exclude them. Nor do we see any error in refusing to permit the victim to read from documents that had already been included in the record. That leaves counsel's attempt to question Nurse Gann regarding any link between bipolar disorder and sexual activity. It is not clear that such a question falls within the scope of Rule 412. Assuming arguendo that it does, appellant failed to preserve error with regard to that topic. Appellant never told the trial court at trial that he wished to ask Nurse Gann such a question, and it at least seems questionable whether she would even be qualified to give an answer. (50) Finally, we agree with the court of appeals that appellant failed to preserve any claim with regard to the request for continuance and the request to recall Nurse Gann because appellant failed to submit his proposed questions. (51) We overrule appellant's third ground for review.

III. CONCLUSION

We hold that the in camera hearing required by Rule 412 is an adversarial hearing where the parties are present and the attorneys are afforded the opportunity to question witnesses and present evidence. We further hold that the remedy for a trial court's failure to follow this requirement is to abate the appeal and remand the case to the trial court to conduct (retrospectively) a proper hearing. Finally, we hold that the trial court conducted a proper hearing on remand. Consequently, we affirm the judgment of the court of appeals.

Delivered: April 25, 2007

Publish






















1. LaPointe v. State, No. 03-03-00460-CR, slip op. at 8-20 (Tex. App.-Austin, Mar. 17, 2005).

2. Id. at 21-22, 22 n.16. The court of appeals' disposition, "proceedings consistent with this opinion" is a little unclear, but the footnote suggests that the court of appeals meant by this a new trial. See id.

3. LaPointe v. State, 166 S.W.3d 287, 289 (Tex. App.-Austin 2005, pet. dism'd).

4. Id. at 300-301.

5. Although not relevant to our disposition, we observe that the trial judge's rulings appeared to be even-handed. Several times the judge sustained defense objections to the prosecutor's questions, including an attempt by the prosecutor to elicit information about appellant's prior sexual history.

6. LaPointe v. State, 196 S.W.2d 831, 834-835 (Tex. Crim. App. 2006).

7. Id.

8. Id. at 836.

9. Id. at 836-837. The correctness of the court of appeals's ultimate holding with regard to the admissibility of the evidence is not before us.

10. Id. at 837-839.

11. Appellant's second ground, which we refused, contended that appellant's pending petition for discretionary review (later dismissed) deprived the trial court of jurisdiction to proceed with the retrospective hearing.

12. Tex. R. Evid. 412(c)(bold in original, italics added).

13. LaPointe, 166 S.W.3d at 293-294.

14. Id. (citing Fed. R. Evid. 412(c)(2)("At such hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence")).

15. P.L. 95-540, §2(a), Oct. 28, 1978, 92 Stat. 2046.

16. Former Tex. Pen. Code §21.13; Acts 1975, 64th Leg., ch. 203, §3.

17. Former §21.13(b). Other than minor, nonsubstantive variations in wording, the only difference between the modern Texas rule and its predecessor appears to be that the modern rule embraces "documentary evidence" in addition to testimony.

18. Tex. R. Evid. 508(c)(3).

19. LaPointe, 166 S.W.2d at 294.

20. See Tex. Civ. Prac. & Rem. Code §154.073(e)("determine")(confidentiality of certain records and communications); Tex. Fam. Code §261.201(b)(3)("review")(confidentiality and disclosure of information); Tex. Fin. Code §59.006(d)("inspection")(discovery of customer records at a financial institution); Tex. Gov't Code §414.008(c)("inspection")(crime stoppers tips); Tex. Health & Safety Code §773.092(d)("determination")(confidential medical information); Weisel Enterprises, Inc. v. Curry, 718 S.W.2d 56, 58 (Tex. 1986)("inspection," "review")(documents allegedly protected by attorney-client or work product privilege); Rule 508(c)(3).

21. Tex. Civ. Prac. & Rem. Code § 172.112 ("hearing," "meeting")(arbitration); Tex. Hum. Res. Code §36.107(c)("hearing")(settlement with defendant in a medicaid fraud suit).

22. Tex. Fam. Code §153.009(e)(court "may" permit party to be present). See also In re Chu, 134 S.W.3d 459, 467 (Tex. App.-Waco 2004)(referring to an "in camera" interview with the child); Patterson v. Brist, 2006 Tex. App. LEXIS 9281, *1 (Tex. App.-Houston [1st Dist.] 2006, pet. for review filed)(same).

23. 700 S.W.2d 924, 932 (Tex. Crim. App. 1985.)

24. Id. at 930-931.

25. Id. at 931 (quoting State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (N.C. 1980)).

26. Id.

27. Id. at 932.

28. Id.

29. See Howard, 121 N.H. 53, 58-59, 426 A.2d 457, 460-461 (1981).

30. Id. at 59, 426 A.2d at 461.

31. Id. (emphasis added).

32. The State criticizes Allen's reliance upon Fortney on the ground that the North Carolina statute explicitly provided the right to an adversarial in camera hearing. But the State does not address Allen's reliance upon Howard, a case decided under a statute that made no reference to a hearing at all. See Howard, 121 N.H. at 57, 426 A.2d at 459 (quoting RSA 632A:6). As the above discussion shows, the Allen court seemed to be aware that there were differences between the statutes in North Carolina and Texas but was drawing upon general principles in fashioning what it considered to be an appropriate narrowing construction for the Texas provision.

33. Allen was decided on December 4, 1985, and the Rules of Criminal Evidence were adopted on December 18, 1985. For citation to proposed Rule 412, see 700 S.W.2d at 928 n.3, 930 n.5.

34. §21.13 was later renumbered to §22.065. Acts 1983, 68th Leg., p. 5315, ch. 977, § 4. Pursuant to legislative authorization, §22.065 was repealed by the Texas Rules of Criminal Evidence. Acts 1985, 69th Leg., ch. 685, §9(b); former Tex. Rev. Civ. Stat. art. 1811f, §9(b)(1). Under the repealer statute, this Court was authorized to create a rule that differed from the statutory provision. State v. Hardy, 963 S.W.2d 516, 520-523 (Tex. Crim. App. 1997).

35. Tex. R. App. P. 44.4.

36. Spence v. State, 758 S.W.2d 597, 599-600 (Tex. Crim. App. 1988).

37. See Hutchinson v. State, 86 S.W.3d 636, 638 n. 1 (Tex. Crim. App. 2002)(citing cases).

38. See id. (citing cases).

39. See e.g. United States v. Cronic, 466 U.S. 648, 659 (1984); Strickland v. Washington, 466 U.S. 668, 692(1984).

40. Ramirez v. State, 104 S.W.3d 549 (Tex. Crim. App. 2003); Hutchinson, 86 S.W.3d 636; Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001); Berry v. State, 995 S.W.2d 699 (Tex. Crim. App. 1999).

41. Ramirez, 104 S.W.3d at 550 (citing Berry); Solomon, 49 S.W.3d at 365 (citing Berry); Berry, 995 S.W.2d at 702 and 702 n. 5 (citing Williams v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996)).

42. Berry, 995 S.W.2d at 702 n. 5.

43. See id. at 701-702.

44. See Williams, 937 S.W.2d at 487. Of course, any failure to preserve error would be held against the appealing party and would likely be fatal to his entire claim.

45. Hutchinson, 86 S.W.3d at 637; cases cited in footnote 41.

46. Berry, 995 S.W.2d at 701-702. Although Berry refers to requiring findings as an action that may be authorized by Rule 34.5(c)(2), we note that that subsection refers only to the clerk's duty to forward findings that are required by law: "
If the appellate court . . .orders the trial court to prepare and file findings of fact and conclusions of law as required by law . . . the trial court clerk must prepare, certify, and file in the appellate court a supplemental clerk's record containing those findings and conclusions." Rule 34.5(c)(2). The source of the appellate court's authority to order the findings is Rule 44.4.

47. See footnote 41.

48. 937 S.W.2d at 487.

49. Thus, we disagree with appellant's contention that Hutchinson stands for the proposition that a party cannot "replay" a hearing that was already held in order to "fix" the hearing. In Hutchinson, the defendant made a prima face case of discrimination as to five veniremembers, but a Batson hearing was held on only four of them. 86 S.W.3d at 639. A "replay" of the hearing with regard to the first four veniremembers was improper, not because "replays" are invariably improper, but because there was no showing that there was any error - with regard to those four veniremembers - in the conduct of the original hearing.

50. The record shows that appellant was well aware at trial of the victim's bipolar disorder and her alleged involvement with "multiple sex partners." So he cannot claim that the proffered question resulted from unexpected developments at the retrospective hearing.

51. Tex. R. Evid. 103(a)(2); Tex. R. App. P. 33.2.

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Page 1
Commissioners Court Minutes For July 26, 2006
Page 1 of 7
REGULAR MEETING – JULY 26, 2006
BE IT REMEMBERED, that on this the 26
th
day of July, A.D., 2006, there was begun and held a
REGULAR MEETING of the Honorable Commissioners Court of Nueces County, Texas, wherein
the following members thereof were present, to-wit:
TERRY SHAMSIE
COUNTY JUDGE
PEGGY BAÑALES
COMMISSIONER, PRECINCT NO. 1
BETTY JEAN LONGORIA
COMMISSIONER, PRECINCT NO. 2
OSCAR O. ORTIZ
COMMISSIONER, PRECINCT NO. 3
H. C. “CHUCK” CAZALAS
COMMISSIONER, PRECINCT NO. 4
and DIANA T. BARRERA, COUNTY CLERK & EX-OFFICIO CLERK OF THE COMMISSIONERS
COURT of Nueces County, Texas, wherein the following proceedings were had, to-wit:
Pastor Axel from Pilgrim Baptist Church gave the invocation.
The Court entered into Workshop Session at 8:40 a.m.
The Court reconvened into regular session at 9:05 a.m.
Agenda Item #1
PUBLIC COMMENT
None
The Court recessed the regular meeting at 9:06 a.m. to hold a Public
Hearing to consider naming a newly constructed section of road “County
Road 48” and rename an existing section of road “Hummingbird Lane”.
On motion of Commissioner Cazalas, seconded by Commissioner Longoria,
the Court voted to close the Public Hearing and to reconvene into Budget
session at 9:10 a. m.
The Court reconvened into regular session at 10:55 a.m. All members
present.
Pledge of Allegiance
Page 2
Commissioners Court Minutes For July 26, 2006
Page 2 of 7
Agenda Item #18
On motion of Commissioner Cazalas, seconded by Commissioner Longoria,
the Court voted to adopt a resolution formally accepting the
recommendations of the Nueces County Beach Management Advisory
Committee, related to the Nueces County Dune Protection and Beach
Access Plan. See Volume 37, Pages 561-569.
Agenda Item #2
GENERAL INFORMATION REPORTS
Commissioner Cazalas reported that he would be going to Austin on
Thursday to attend a meeting pertaining to retirement plan issues.
Commissioner Longoria also reported that she was going to attend the same
meeting in Austin.
Commissioner Ortiz – no report
Commission Bañales commented on the wonderful opening of the Old
Courthouse annex. She also thanked the following people who assisted with
the project: Edward Herrera, Lt. Robert Hernandez, Elsa Saenz, Roxanne
Hunt and her staff, Jason Parker, Michael Molina, Commissioners Court
Assistants Yolanda Slubar, Sandra Santos, Sandra Ysassi, and Josie Herro,
and Tyner Little.
Judge Shamsie commented that the Commissioners Court will be adopting a
tax rate that is lower than the effective tax rate. He is also proposing to raise
the homestead exemption for those over 65 and disabled, from $60,000 to
$62,500 which will further lower the taxes. The Judge also thanked the
Court, all Elected Officials, and employees for their hard work in keeping
costs down. It was a team effort.
Agenda Item #3a
CONSENT AGENDA
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve the minutes for the March 8, 15, and 23, 2006,
Commissioner Court meetings, with corrections to the March 15, 2006
minutes to include the following names of persons who assisted during the
Diabetes Awareness Fair: Commissioner Bañales thanked the Leopard
Street Corridor, Ace Zamora, a Miller High School student, Elsa Saenz,
Human Resources Director and son Eric, Terry Montes, Yolanda Slubar and
son Steven and her daughter Analisa Bañales for their hard work in
preparation for the event.
Page 3
Commissioners Court Minutes For July 26, 2006
Page 3 of 7
Agenda Item #3a(i)
On motion of Commissioner Ortiz, seconded by Commissioner Bañales, the
Court voted to authorize payment of bills and claims certified by the County
Auditor, including regular bill summaries dated July 12 (2), July 13 (2), July
17, July 19, July 20 (2), and July 24, 2006, and manual checks dated July
14, and July 21, 2006; and to approve the Special Motions List dated July
26, 2006. See Volume 37, Pages 570-571.
Agenda Item #3b
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize the acceptance of a donation of $1,000.00 from
TXU Energy for use by the Nueces County Human Services Department.
Agenda Item #3c
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to ratify the contract with Complete Construction Service for
services related to the Hilltop Nature Area II Skate Park, subject to company
providing proper insurance. Contract No. 200600092.
Agenda Item #4
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to authorize the adoption of a Resolution and Order adopting
the name of “County Road 48” for a newly constructed section of roadway.
See Volume 37, Page 572.
Agenda Item #14
On motion of Commissioner Longoria, seconded by Commissioner Ortiz, the
Court voted to approve a pay adjustment for Juvenile Board members and
County Court at Law Judges, effective December 1, 2005, pursuant to
Attorney General Opinion No. GA0437.
Agenda Item #6
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve an amendment to grant for Local Public
Health Preparedness and Response for the Bioterrorism FY 05-06 in the
amount of $67,381.00. Contract No. 200600093
Agenda Item #7
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve Attachment No. 03A to Department of State
Health Services Title XX contract for additional funding in the amount of
$46,329.00. Contract No. 200600094
Page 4
Commissioners Court Minutes For July 26, 2006
Page 4 of 7
Agenda Item #8
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve Attachment No. 04A to Department of State
Health Services Title V contract for funding in the amount $22,840.00.
Contract No. 200600095
Agenda Item #5
On motion of Commissioner Bañales, seconded by Commissioner Cazalas,
the Court voted to adopt a Resolution and Order to change the name of a
section of County Road 48 to “Hummingbird Lane”. See Volume 37, Page
573.
Agenda Item #9
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize execution of a contract with Naismith
Engineering, Inc., for roadway and drainage improvements relating to the
Rose Acres Colonia project. Commissioner Cazalas abstained because he
is Chairman of Office of Rural Community Affairs Grant Review Committee.
Contract No. 200600096.
Agenda Item #10
On motion of Commissioner Longoria, seconded by Commissioner Ortiz, the
Court voted to adopt a resolution authorizing the submission of a grant
application to the Texas Parks and Wildlife Department for a Texas
Recreation and Parks Accounts Program. See Volume 37, Page 574.
Agenda Item #11
On motion of Commissioner Ortiz, seconded by Commissioner Longoria, the
Court voted to approve an amendment to the Texas Parks and Wildlife
agreement related to extending the expiration date on the New North
Robstown County Park grant from July 15, 2006 to July 31, 2006. Contract
No. 200600097
Agenda Item #12
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve the execution of a Memorandum of
Understanding with the State of Texas – Office of Court Administration for
collection software funding assistance. Contract No. 200600100
Agenda Item #13
On motion of Commissioner Ortiz, seconded by Commissioner Longoria, the
Court voted to accept and approve the Management Letter from the
independent audit firm, Pattillo, Brown and Hill, for fiscal year ended 9-30-05.
Page 5
Commissioners Court Minutes For July 26, 2006
Page 5 of 7
Agenda Item #15
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve the allocation of $1,000.00 diabetes funds for the
Texas Cooperative Extension for Do Well, Be Well with Diabetes (DWBW)
Program.
Agenda Item #16
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve an agreement with Goliad County, related to the
performance of Postmortem examinations by the Nueces County Medical
Examiner. Contract No. 200600098
Agenda Item #17
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to authorize execution of agreement with the Office of the
Texas Attorney General related to the Child Support Enforcement Program
pursuant to Title IV-D. Contract No. 200600099
Agenda Item #19
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize the County Judge Executive Assistants, Steve
Waterman and Tyner Little, to approve the Quarterly Request for County
Reimbursement of Juror Payments.
Agenda Item #20a
On motion of Commissioner Longoria, seconded by Commissioner Cazalas,
the Court voted to award IFB No. 2660-06, Channel Clearing near Banquete,
to Garrett Construction Company.
Agenda Item #20b
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to table Agenda Item #20b.
Agenda Item #20c
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to advertise for Courthouse Window Renovation.
Agenda Item #20d
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to advertise for Courthouse Elevator Maintenance.
Agenda Item #20e
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize advertisement for a New 12” Waterline
Improvement for the Fairgrounds.
Page 6
Commissioners Court Minutes For July 26, 2006
Page 6 of 7
Agenda Item #20f
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to authorize advertisement for a Courthouse Security Access
Control System.
Agenda Item #21
On motion of Commissioner Longoria, seconded by Commissioner Bañales
the Court voted to table Agenda Item #21.
Agenda Item #22a
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve Unfreeze List No. 486 and Temporary Application
and Contract List No. 176. See Volume 37, Pages 575-576.
Agenda Item #22b
On motion of Commissioner Longoria, seconded by Commissioner Cazalas,
the Court voted to approve Personnel Change Reports through July 11, and
July 18, 2006. See Volume 37, Pages 577-588.
Agenda Item #22c
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to approve creation and the unfreeze of Epidemiologist
position, PG 27, Step 1, under the Department of State Health Services
grant funding.
Agenda Item #22d
On motion of Commissioner Longoria, seconded by Commissioner Bañales,
the Court voted to approve reclassifying the Tax Office position no. 22, from
17/03 to 21/01; and position no. 35 from 15/01 to 11/01.
Agenda Item #22e
On motion of Commissioner Cazalas, seconded by Commissioner Bañales,
the Court voted to approve of the reclassifying the Public Works Principle
Engineer position from 38/01 to 42/01.
Agenda Item #22
On motion of Commissioner Cazalas, seconded by Commissioner Longoria,
the Court voted to approve the creation and unfreeze of an architect-facilities
management position, pay group 39, in the Department of Public Works.
Page 7
Commissioners Court Minutes For July 26, 2006
Page 7 of 7
Agenda Item #23
EXECUTIVE SESSION
On motion of Commissioner Cazalas, seconded by Commissioner Bañales,
the Court voted to enter into session at 11:55 a. m. in accordance with the
authority of the Government Code, Vernon’s Texas Codes, Sections
551.071, 551.072, 551.073, 551.074, 551.0745, 551.076, 551.086, to
consult with attorney(s) including matters related to litigation; deliberate
regarding real property, prospective gift(s), personnel matters including
termination, county advisory bodies, security devices, and/or economic
development negotiations and other matters that may be discussed in an
Executive Session. Upon completion of the Executive Session, the
Commissioners Court may in an open session take such as action as
appropriate on items discussed in an Executive Session.
The Court reconvened into regular session at 12.54 p.m. Judge Shamsie
absent.
Agenda Item #24
On motion of Commissioner Bañales, seconded by Commissioner Longoria,
the Court voted to appoint Candy Holmes, Wavel Milligan Brown,
Commander U. B. Alvarado, Nick Nevarez, and Rev. Richard Stafford to the
Adult Protection Services Special Task Unit
On motion of Commissioner Longoria, seconded by Commissioner Bañales, the Court voted to
adjourn the meeting at 1:00 p.m.
There being no further business to come before the Court, it is ordered that this meeting do now
stand adjourned, this the 26
th
day of July, 2006.
_______________________________________________
Terry Shamsie, County Judge
Nueces County, Texas
ATTEST:
Diana T. Barrera, County Clerk
And Ex-Officio Clerk Of The
Commissioners Court Of
Nueces County, Texas
_________________________________________
Diana T. Barrera, County Clerk