TEXAS HOUSE BILL 1630 ~ 71th Leg. Regular Session

Beware of the links at the bottoms ~ they will never give you taxpayers what you pay for...... so you cant know your own property...especially if u r

2009-10-13T23:40:00.000-07:00

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Texas Performance Review
Disturbing the Peace Chapter 7
Employee Issues
EI 10: Improve Collection of State Employee Debt

Improve the collection of debt owed the state by its employees.

Background

One subset of debt due the state is the amount owed by state employees. The Comptroller's warrant hold program reports that 10,343 state employees owed the state $44.3 million as of June 1996.[1] (Exhibit 1.) Currently, $28.3 million, or 63.9 percent, is owed through student loan programs. The Texas Guaranteed Student Loan Corporation (TGSLC), which administers the federal guaranteed student loan program in Texas, is owed the largest proportion ($25.5 million, or 57.6 percent, of the total amount).[2] The debt held by TGSLC may be reinsured by the federal government. The Texas Higher Education Coordinating Board's (THECB) Hinson-Hazelwood student loan program is owed $2.7 million, or 6.1 percent of the total amount.[3] Another $13.6 million (30.7 percent) is owed to the Attorney General for child support payments, while the remaining $2.4 million (5.5 percent) is due to the Comptroller's office for delinquent taxes and the Texas Workforce Commission for unemployment tax liability.[4]

Exhibit 1

State Debt Owed by State Employees, June 1996

Source: Texas Comptroller of Public Accounts.

Warrant holds

The Comptroller's warrant hold program offers all state agencies a tool to collect outstanding debts. Fifty-two agencies currently participate. The warrant hold program applies only to non-salary payments and is fairly simple. An agency sends the Comptroller's office a request to participate in the program. The Comptroller's Claims Division asks the agency to identify the source of debt owed the state. The agency submits identification numbers for the debtors (either individuals or organizations) to the Claims Division. From then on, as the Comptroller's office prepares warrants, the debtors' identification numbers are electronically checked against the prepared warrants.

If a state employee to whom a warrant is made payable owes money to an agency participating in the program, the warrant is held by the Comptroller's office, and the agency on whose behalf the warrant was printed is notified that the individual will not receive the warrant. The employee is notified of the withheld warrant, the outstanding debt amount, and the amount of the warrant withheld. If the warrant is to be released, the employee must contact the agency owed and agree upon a payment plan. The agency holding the debt then must contact the Comptroller's office to release the warrant. The agency may choose to collect on a certain portion of the debt before the warrant is released, or to release the warrant as soon as a payment agreement is reached.

If a state employee owes delinquent taxes to the Comptroller's office, the Government Code SS403.055(g) gives the Comptroller the authority to apply the warrant to the total amount that individual owes the state. Taxes can be offset--applying the warrant to the delinquent debt--by warrants other than salary. Taxes and other debts to the state may also be offset by lottery winnings, as authorized by the Government Code SS466.407.

Wage garnishment

In addition to warrant hold, the state also may collect debts through garnishment, a process by which part of an involuntary deduction is made from an individual's wages to repay a debt. Wage garnishment is a severe measure and one that is used only rarely. Under present law, Texas may garnish current wages for only two forms of debt: child support payments and student loans. The Texas Constitution specifically prohibits garnishment except in court-ordered child support cases, but federal law has superseded the constitution in the case of student loan repayment.

The Texas Supreme Court ruled in Orange County, Texas v. Ware, a 1991 decision, that the Texas constitutional prohibition against garnishment of current wages does not apply to an employer's withholding of an employee's compensation until the employee's debt to the employer is paid. The Court ruled that a garnishment occurs only when three parties are involved: the employer, the employee, and the third party creditor. Thus, holding a state employee's paycheck because the employee is indebted to the state would not appear to be an unconstitutional garnishment. It might be possible for the state to hold a salary payment if the applicable laws were changed.

Child support enforcement

Enactment of the federal Child Support Enforcement Act (P.L. 93-647) in 1975 strengthened the public's commitment to address the problem of nonsupport of children, with program administration left to the states. This commitment was further enhanced by the Family Support Act of 1988 (P.L. 100-485) which required states to impose wage withholding on the noncustodial parent in all new or modified child support enforcement program cases. As of January 1, 1994, states were required to provide for immediate wage withholding for all support orders issued, regardless of whether a parent has applied for child support enforcement services.

Child support payments are generated through court orders. Custodial parents failing to receive child support payments may apply for collection services through the Office of the Attorney General (OAG). OAG also may begin collection services if a custodial parent applies for Aid to Families with Dependent Children (AFDC) benefits and is not receiving child support payments. OAG attempts to persuade the non-custodial parent to pay current and past-due child support. If this effort is unsuccessful, OAG then may begin the garnishment process by serving the non-custodial parent's employer with a court order or writ of withholding to turn over a portion of the parent's compensation. OAG may garnish up to 50 percent of the parent's disposable earnings to satisfy the debt. The specific amount is set by the court order or writ.

According to the warrant hold information, $13.6 million is owed the OAG for child support payments--$832,000 of which is owed by employees whose child or children receive AFDC and $12.8 million owed in non-AFDC cases. The federal government reimburses the state 66 percent of the costs related to child support enforcement.[5] In 1995, the state paid about 37 percent of the cost of AFDC and is entitled to the same proportion of the additional AFDC-related child support collections.[6]

Collection of outstanding student loans

In 1991, the federal Emergency Unemployment Compensation Act (P.L. 102-164; 20 U.S.C. SS1095a et seq.) gave TGSLC the ability to garnish up to 10 percent of a debtor's disposable pay. TGSLC may continue to garnish wages until the defaulted loan has been paid in full. TGSLC has established criteria for wage withholding. Wages may be withheld if an employee has at least $400 outstanding, a $12,000 salary, and a collection account that is being worked by a TGSLC collector.[7] TGSLC reports that most state workers with unresolved collection accounts (those in which no payment has been made in at least 60 days) who are candidates for wage withholding do not have large salaries. As of August 1996, 55 percent earned less than $20,000 a year, and 96 percent earned less than $30,000 annually.[8]

June 1996 data from the Comptroller's warrant hold program indicate that almost 5,600 state employees, or about 2.1 percent of total full-time equivalent employees, are in default on student loans. The total amount in default is $28.3 million.[9]

State employees owe TGSLC, THECB, and 20 institutions of higher education student loan debt. Information from the Comptroller's warrant hold program indicates that 4,600 employees owe TGSLC about $25.5 million, an amount representing about 90 percent of the total student loan debt of state employees.

The other state program with a substantial student loan debt is the Texas Higher Education Coordinating Board's Hinson-Hazelwood Program. The agency is due $2.7 million (9.5 percent of the total student loan debt) from state employees, according to data from the warrant hold program. The remaining 20 agencies (which comprise only about 0.5 percent of state employee student loan debt) are institutions of higher education, including the Texas State Technical College System, medical schools, and community colleges.[10]

Limitations to state collection programs

Several limits to the effectiveness of wage garnishment and warrant holds exist. The biggest limit to wage garnishment is that it can be used for only two state-administered programs. A constitutional amendment or a new federal law would be required to expand the program.

The largest limitation in the warrant hold program is that there is not a mandatory usage of the Comptroller's system. Moreover, the warrant hold program is effective only if an employee receives payments other than salary compensation. Debt for a state employee who never or rarely travels, for instance, could remain uncollected.

Another factor is the amount of time needed to collect a debt through warrant hold. A warrant is valid for two years, and the Comptroller's Claims Division reports that a fair number of withheld warrants simply expire. This occurs for any number of reasons; in some cases, the debtor never contacts the agency owed to work out a plan, or the agency owed chooses not to release the warrant. In at least some cases, at any rate, a withheld warrant is not a sufficient motive to prompt debtors to begin paying their debts. Some debtors may consider multiple withheld warrants sufficient cause to begin paying a debt, but generating that number of warrants may take months or even years.

A final limitation on the warrant hold program is that little aggregate information is available regarding collections and debts owed the state. The Comptroller's Claims Division receives information from agencies about outstanding debt to generate warrant holds, but agencies are not obligated to update this information after the initial data have been submitted.

Recommendations

A. State law should be amended to broaden the Comptroller's warrant hold program and require mandatory participation by all state agencies and institutions of higher education.

The Comptroller's warrant hold program applies only to warrants issued by the Comptroller's office. The program could be expanded so that any payments by the state would be withheld until debts owed by people receiving state payments are cleared.

Ultimately, the program could be expanded so that debtors to the state would be precluded from receiving licenses and permits.

B. State law should be amended to allow the Comptroller's office to promulgate and enforce rules regarding the submission of updated warrant hold information from state agencies and institutions of higher education to ensure accuracy.

C. State law should be amended to allow for the automatic offset of liabilities against warrants issued by the state.

This provision would allow a warrant that is issued and held to be applied against a debt owed the state, treating all debts like taxes are currently treated. This recommendation should not be applicable to salary payments.

D. State law should be amended to require automatic payroll deductions for state employees with delinquent debt payments.

If a state employee becomes delinquent in his or her repayment of debts to the state, the owed agency should be able to set up a payroll deduction automatically to repay the debt. For those deductions not established by federal or state law, the Comptroller's office should use its current statutory authority to establish the priority of deductions.

E. State law should be amended to allow the Comptroller's office to adopt a warrant hold policy relating to state salaries.

Using the Comptroller's warrant hold program to hold a state employee's paycheck because the employee is indebted to the state would not appear to be an unconstitutional garnishment.

Many state employees may not know that they owe a debt to the state until a warrant is issued and held. Notices of delinquency should be sent to all employees owing a debt by the agency owed, along with information regarding repayment procedures. Upon receipt of the notice, the delinquent employee would be responsible for contacting the owed agency to voluntarily set up a payment plan.

If no contact was made by the employee, the owed agency would be obligated to notify the Comptroller's office, the employee, and the employing agency that the employee's paycheck will be held. Arrangements for payment toward the debt would have to be made before the owed agency releases the warrant. As mentioned earlier, the Comptroller's office has the authority to establish the priority of payments for debts that neither federal nor state law address.

Provisions for enforcement would have to be made by the agency owed for those employees who are paid with local funds. The owed agency would have to determine which state employees are paid with local funds, and would then be obligated to establish a payment plan for the delinquent employee. The owed agency would have to notify the employee of the impending deduction and submit the payment plan to the employing agency for enforcement of the deduction.

Fiscal Impact

A stricter approach to collecting debt owed the state by state employees would presumably increase the amount of debt collected by the state. Implementation of these recommendations would require programming changes to the Texas Payee Information System and the Uniform Statewide Personnel/Payroll, incurring some costs which would be absorbed by the Comptroller's office. The cost of this recommendation is negligible.

Footnotes

[1] Texas Comptroller of Public Accounts, Count of State Employees on Hold, June 24, 1996, pp. 1-17. (Statistical report.)

[2] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 9-12.

[3] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 6-8.

[4] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 1-17.

[5] "The 1994 Green Book Overview of Entitlement Programs, Section 11. Child Support Enforcement Program" (http://aspe.os.dhhs.gov/GB/sec11.txt). (Internet document.)

[6] "The 1994 Green Book Overview of Entitlement Programs, Section 10. Aid to Families with Dependent Children and Related Programs (Title IV-A)" (http://aspe.os.dhhs.gov/GB/sec10.txt). (Internet document.)

[7] Texas Guaranteed Student Loan Corporation, "Unresolved Collection Accounts as of August 12, 1996, by whether or not Defaulter meets TGSLC Wage Withholding Criteria; Workers Employed by a State of Texas Agency as of July 31, 1996, Sorted by Agency Name," August 20, 1996, p. 1. (Statistical report.)

[8] Texas Guaranteed Student Loan Corporation, "Unresolved Collection Accounts as of August 12, 1996 by whether or not Defaulter meets TGSLC Wage Withholding Criteria; Workers Employed by a State of Texas Agency as of July 31, 1996, by Annual Salary Range," August 12, 1996, p. 1. (Statistical report.)

[9] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 1-17.

[10] Texas Comptroller of Public Accounts, Count of State Employees on Hold, pp. 1-17.

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In life we are put in predicaments where incidents meets the innocent |

2009-10-01T00:43:00.000-07:00

Download RingtoneSend “If I...” Ringtone to Your CellDownload Ringtone

[Intro]
[Verse]

I live my life like a 38
Pointed straight but shooting blanks
Killing Angels but they don�t don�t die
I�m heading on a course of change,
Lost my brother on the run
Lost my dignity to one
I blame them others and take none
Am I a man.
I wake up every day in rage
Sore from bumping round my cage
I see my father broken down
He seem so strong up until now
And all the inner conflicts groan
Cause now I question all I know
And I just need something I could feel

[Chorus]

So If I�
Crash into you
And If I�
Dare Not Run away
It�s Cause I�
Need someone to touch
Whether it�s�
Heavenly or pain
And if by�
Chance we don�t collide
Then I�ll�
Take much better aim
It�s cause we�
Need someone to touch
Whether it�s heavenly or pain

[Guitar Solo]

[Verse 2] (Rap)

I will understand you | Judge You |Protect you | Berate you
Help you | Punish you | Guide you | Forsake you
We speed through life like we speed through life |
In the blink of an eye it could mean your life |
Frighten by stereotypes our senses become heighten |
When fear meets the truth it�s like the clash of the titans |
We cross the same intersection | Where perception becomes deception |
Mirrored reflections of an ugly complexion |
It�s a mess that people think we are who we are
Based on what they hear or read or by the color we are |
In life we are put in predicaments where incidents meets the innocent |
That �Crash� our conscious with contents of nonsense |
When I breakdown and �Crash�

[Chorus]

So If I�
Crash into you
And If I�
Dare Not Run away
It�s Cause I�
Need someone to touch
Whether it�s�
Heavenly or pain
And if by�
Chance we don�t collide
Then I�ll�
Take much better aim
It�s cause we�
Need someone to touch
Whether it�s heavenly or pain

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied............

2009-09-19T20:16:00.000-07:00

3789

Practicing law without a license is a right under the 1st amendment - a right that cannot be abridged. “ . . .shall make no law . . . . abridging the freedom of speech, or of the press; or the right to petition the government for a redress of grievances.” - 1st amendment Speech, petition, counseling, and association are all 1st amendment rights. They are “privileges” ( “ No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States - 14th amendment)

of citizenship under the 14th amendment “privileges and immunities” clause and you have an immunity from prosecution for exercising these rights!

This is www.lawyerdude.8k.com/3789.html

Revised Sunday, March 2, 2003. Minor upgrade Tuesday, April 8, 2003.Sunday, June 22, 2003, Dec 15, 2003. Fixed link April 26, 2004.

Related pages:

The prettier version of this page is at www.lawyerdude.8m.com/3789.pdf

The table of authorities for this page is here: http://www.lawyerdude.8m.com/3789authorities.html

Table of Contents, Tables of Authorities and other incidentals and front matter are at this link: www.lawyerdude.8m.com/3789frontmatter.html

Table of Contents: http://www.lawyerdude.8m.com/3789contents.html

Table of Authorities cited in this brief: http://www.lawyerdude.8m.com/3789authorities.html

The story of my arrest for writing brief #2871: http://www.lawyerdude.8m.com/3789myarrest.html

The smoking gun. They arrested me for writing this Brief #2871: http://www.circuitlawyer.8m.com/2871.html

A brief history of harassment by the Ventura prosecutor: http://www.lawyerdude.8m.com/3789history.html

Some comments on my trial: http://www.lawyerdude.8m.com/3789mytrial.html

Tribute to Professor David Harrell: http://www.lawyerdude.8m.com/3789harrell.html

This page is mentioned on page: http://www.lawyerdude.8m.com/mystory.html

The index to this brief 3789 is: www.lawyerdude.8m.com/3789index.html

This page is listed on page: http://www.lawyerdude.8m.com/5094.html

This page is listed on my overbreadth pages: http://www.lawyerdude.8m.com/5409.html and http://www.lawyerdude.8m.com/5428.html

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Analysis #3789 (formerly 3601):

The 1st Amendment Rights of Lawyers

Everybody’s 1st Amendment Right to Association

The state bars lose here. Read these cases.

Preliminary Version #3.01 - 90% Complete. This document was lost from my computer in my hard drive crash of 2002 but it was up on the net at the time so I did not lose it.

Brief 3789 is big. Here are some of the auxiliary parts:

1. Table of Contents, Tables of Authorities and other incidentals and front matter are at this link: www.lawyerdude.8m.com/3789frontmatter.html

2. Table of Contents: http://www.lawyerdude.8m.com/3789contents.html

3. Index to brief #3789: http://www.lawyerdude.8m.com/3789index.html

4. Table of Authorities cited in this brief: http://www.lawyerdude.8m.com/3789authorities.html

5. The story of my arrest for writing brief #2871: http://www.lawyerdude.8m.com/3789myarrest.html

6. Brief #2871: http://www.circuitlawyer.8m.com/2871.html

7. My trial. www.lawyerdude.8m.com/3789mytrial.html

8. A brief history of harassment by the Ventura prosecutor: http://www.lawyerdude.8m.com/3789history.html

9. Tribute to Professor David Harrell: http://www.lawyerdude.8m.com/3789harrell.html

Brief #3789

Lawyers are a class of People Recognized in the Constitution.

The 6th amendment to the constitution says that you have a right to effective assistance of counsel. “ . . .the accused shall enjoy . . .the assistance of counsel for his defense”

(6th amendment in total says : In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense)

That is what I am: I am counsel. See Ex Part Garland for this discussion and a superb discussion of the constitutional right to be a lawyer.

Licensing of the right to speak is proscribed by the 1st amendment

Stanford Professor Lawrence Friedman says in his classic History of American Law (which book is cited as authority by the U.S. Supreme Court in their opinions) says that the only legitimate purpose of a bar association is to test for competence. My research keeps leading me back to Professor Friedman's truth. Ironically a firm policy of the California Bar is that they do not disbar or discipline for incompetence. Presumably a lawyer who has once passed the bar exam is presumed competent.

I contend that disbarment must be prohibited or curtailed because it is used as a tool to chill the speech of dissidents like me.

California Constitution, article 6, section 9: "The state bar of California is a public corporation. Every person admitted and licensed to practice law in this state is and shall be a member of the State Bar except while holding office as a judge of a court of record."

This statute (wrongfully escalated to constitutional status by the power grabbing California bar) defines the membership of the bar. My research shows that the legislative intent behind this ambiguous statute is not that lawyers may not be disbarred - although that is what it seems to say. I nonetheless contend that once admitted you should not be disbarred. The Supreme Court in (Theard?) says that disbarment is serious and should not be done for trivial reasons - something that our California Bar should take to heart.

Remember that bar organizations were originally conceived to combat a corrupt judiciary in the days of Tamany Hall. (Source: History of American Law by Professor Lawrence Friedman) And today, we lawyers, a few of us, continue to fight corruption such as the over-reaching of the California Supreme Court which took action against me after I pointed out their wrongdoings on behalf of a client in federal court. The California Supreme Court should have recused it self in my

case - and should have invited me to participate in the proceedings.

Here are the cases that have vindicated our 1st Amendment Right to Association:

United Transportation Workers (Teamsters) v Michigan Bar (1971) http://www.lawyerdude.netfirms.com/teamster.html 28 L Ed 2d 339, 401 US 576, 91S Ct 1076, and that line of reasoning holds that the bar may not interfere with people who are trying to vindicate the civil rights of their associates.

NAACP v Alabama (1958) http://www.lawyerdude.netfirms.com/naacp2.html 2 L Ed 1488, 357 US 449, 78 S Ct 1163. The attorney general of Alabama sought to enjoin the NAACP from riling up those pesky Negroes. The Negroes won. Notice that in this old case they even wanted the membership lists - like in the communist cases.

NAACP v Button (1963) http://www.lawyerdude.netfirms.com/naacp3.html 9 L Ed 2d, 371 US 415, 83 S Ct 328. The NAACP Legal Defense Fund brought suit in federal court in the eastern district of Virginia in 1957. These suits sought an injunction against enforcement of 5 statutes. Lawyers at the meetings risked disbarment and laymen risked criminal prosecution under the challenged statute for merely advising Negroes that they could file a lawsuit. NAACP won. This is a boring but fairly thorough opinion. Justice Douglas, the court's strongest liberal called a spade a spade. He said that this statute was designed to combat the trend of the Negroes to integrate schools and vindicate their rights that the Supreme Court enunciated in 1954 in Brown v Board of Education. NAACP v Button is right before Wong Sun in Lawyer's Edition. Both are from a fruitful era of the court when our rights were being vindicated. Wong Sun is the case that I cited in my LSD brief - but my appointed lawyers dropped the ball. It is about testimony of a co-conspirator, absence of consent, coercion, and defending against police abuse in drug cases.

Primus, In Re (1978) http://www.lawyerdude.netfirms.com/primus.html 56 L Ed 2d 417, 436 US 412, 98 S Ct 1893. Subject of annotation at Lawyer's Edition 2nd 56:841 entitled Licensing and Regulation of Attorney as restricted by rights of free speech, expression, and association which is the closest treatise on point regarding free speech rights of lawyers. Her Supreme Court brief is at 56 L Ed 2d 838. Edna Primus was a lawyer in private practice who volunteered her time to the ACLU. South Carolina stupidly argued that solicitation, like advertising, invades the privacy of other's - as though Primus's client was not desperately in need of a free lawyer. In the summer of 1973, welfare mothers were sterilized or threatened with sterilization as a condition of continued Medicaid relief. Mary Williams had been sterilized by the authorities via Dr. Clovis Pierce. Primus informed Mary Williams by letter that the ACLU would take her case and sue Dr. Pierce. This letter was the smoking gun - sorta like Palaschak's brief telling Melvin Looser that the court could not send him to jail for being poor. In October 1974 the secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina filed a formal complaint that Edna Primus had engaged in solicitation in violation of the Canons of Ethics. (Back in 1973 Black's Law Dictionary published the ABA Canons of Ethics and many of us thought that the ABA ethics were the last word. Since then each state has carved out its own niche of oppression. Edna Primus replied that the 1st amendment and 14th amendment gave her immunity for her letter. After a hearing on 9 Jan 1976 the full board approved a private reprimand. On March 17, 1977 the Supreme Court of South Carolina put its rubber stamp on the deal - likely without any input from Primus. On July 9, 1977 Primus brought action in the U.S. Supreme court. Her action is based primarily on a 1963 case NAACP v Button - and in view of the clarity of the right to association spelled out by the court in 1963 I wonder why South Carolina would bring this disciplinary action but for their bureaucratic macromegalomaniac personality. (See Palaschak's theory on macropsychology - which says that bureaucracies have their own personalties which are bad from the perpetual life of the bureau and the exaggerated sense of useful purpose and wisdom. Their mistake is the bureaucracies have no wisdom or insight.) Observe that all the lawyers being disciplined in these cases were representing people who were typical of groups of people gaining their rights. Examples Primus represented a welfare mom; in NAACP v Button it was Negroes who were gaining their rights; in the union cases it was unions against the monopolies; in Palaschak's case it is poor victims of traffic court and the very lawyers like Primus who, in California, are subjected now to a barrage of trivial, merit less attacks by the bar (representing the moneyed interests) sometimes for acts having no nexus to the practice of law. Example: Palaschak's traffic tickets and having eaten LSD. Rehnquist dissented in this opinion. The companion case is Ohralik v Ohio state bar 56 L Rf 2d 444, 436 US 447, 98 S Ct 1912. Ohralik was an ambulance chaser entitled to the same first amendment rights but he lost on appeal while Primus won because she took no money. Does your right to speech end if you are paid for it? No.

Related inadequate treatise: L Ed 2d 100:1049 State Regulation of judicial proceedings as violating commerce clause (Art 1, section 8, clause 3) of Federal Constitution - Supreme Court Cases.

Primus's 1978 brief cites 8 cases, namely:

NAACP v Button (1963) http://www.lawyerdude.netfirms.com/naacp3.html - which is discussed above;

Brotherhood of Railroad Trainmen v Virginia,

United Mine Workers V Illinois State Bar,

United Transportation Union v State Bar of Michigan, http://www.lawyerdude.netfirms.com/teamster.html

NAACP v Alabama http://www.lawyerdude.netfirms.com/naacp2.html ,

Buckley v Valeo,

US v Cook (1872) 21 L Ed 538,

Hamling v US 41 L Ed 2d 590,

Thompson v Louisville 4 L Ed 2d 654.

Notice that in most of the cases the bar organization is on the losing side, on the side of oppression. The bar is controlled by the money interests. Money is against labor. That is why we see the Teamsters, Mine Workers, and other unions against the bar. The Unions represent the workers.

Ohralik v Ohio state bar http://www.lawyerdude.netfirms.com/ohralik.html 56 L Ed 2d 444, 436 US 447, 98 S Ct 1912. Ohralik in his brief at 56 L Ed 876 cited the following cases:

Louisville Var v Hubbard 282 Ky 734, 739, 139 Sw2d 773, 775,

Bates v State Bar of Arizona 53 L Ed 2d 810,

Virginia State Board of Pharmacy v Virginia Citizens Consumer council 48 L Ed 2d 346,

NAACP v Button 9 L Ed2d 405,

State v Rubon (1930) 201 Wes 30,32, 229 NW 36, 37,

Cole v Arkansas 92 L Ed 644,

US v O'Brien 20 L Ed 2d 672.

Brotherhood of Railroad Trainmen v Virginia ex.rel. Virginia State Bar (1964) 12 L Ed 2d 89, 377 US 1, 84 S Ct 1113. Court struck down an injunction barring union from directing its members to certain favored lawyers.

United Transportation Union v State Bar of Michigan (1971) 28 L Ed 2d 339, 401 US 576, 91S Ct 1076 These were the teamsters. The court vindicated the rights of the Teamsters to associate and refer members to its own chosen lawyers.

Alien and Sedition cases and communist sympathizer cases - Reagan was a snitch.

About 1450 Gutenberg invented the printing press and within 100 years Star chamber circa 1556

passed statutes requiring a license to print. History is a study of the rich trying to oppress the poor.

Our 1st amendment is written against a background of licensing of the right to print and licensingof lawyers is nothing more than licensing the right to print where it is most important - and licensing the right to speak - and the first amendment says that these right and the right to petition for redress of grievances shall not be abridged. The state bar act abridges them and is unconstitutional.

I must put these authorities on the computer. I printed them longhand.

The Supreme Court of California talks about its inherent power to discipline lawyers. There is no such inherent power!! However, we do have an inalienable rights - - and the California Supreme Court oversteps its bounds when it attempts to curtail my right to speak.

This oppression in the name of the bar's inherent power is a product of the age of robber barons.

A study of the use of the words "inherent power to discipline lawyers" shows that they began to be used during the age of the robber barons during an age when drugs and alcohol became illegal and when the IRS began to tax us - in short, in the age of oppression.

Scope of this Treatise: 1999 Trial; Upcoming 2001/2 Trial.

This treatise lists the authorities that I found in my research in jail in Ventura from July through September 1999 while awaiting trial for "advertising or holding oneself out to be entitled to practice law" while one's license from the California bar is suspended or revoked. My purpose is to put the articles in a retrievable form. My purpose then was also to assist court reporters as they reported my oral arguments citing these cases; the list save them from asking me to spell each case name for them. My treatise and discussion of these articles although sometimes typewritten was not on my computer, of course, because although I demanded a computer - and the press releases for the Ventura jail brag about their state-of-the-art law library - in fact I was denied access to a computer or word processor. I cited many of these cases in my written requests for Jury Instructions.

In 1999 I put all the authorities into one list for use by the court reporter regarding spelling and citation of cases that I planned to mention in my argument.

In the year 2000 I demanded (using this brief) to speak in court without retaliation - and who would think that in our supposed free country a lawyer would need to defend his right to speak? Like a frog in a cooking water we have grown accustomed to something harmful. An implicit tactic of corporate ficta is the utilization of their perpetual life by patient and stealthy encroachment because they know that one generation will forget the lessons of the previous human generation. Case in point: This generation has forgotten our right to speak was unlawfully abridged by the state bar act of previous generations.

Everybody (hyperbolically speaking) living now mistakenly believes that the bar may abridge

speech despite the clear wording of the California and U.S. constitutions - but if we had lived as long as corporate ficta we would never have let this happen; things like this happen by generation - after the last remaining mortal human objector has died.

I recognize that I may lose credibility if I say that all lawyering is protected activity - but, on the other hand, everybody know that the 1st amendment protects speech and writing. Generally speaking, all that a lawyer does is write, speak, read, and listen.

If you think a little harder you will realize that a lawyer does 2 other things:

#1 he is a proxy for the litigant. For example, he may plead "not guilty" for the defendant or speak on behalf of a litigant who is geographically distant from the court;

#2 he is a fiduciary; for example: he receives the check from the insurance company and pay the client.

Both of these non-speech activities have their own life outside the bar because both of these functions are routinely done by non-lawyer (and have been for centuries) - and both have their own remedies for wrongs.

Ancient and continuing Proxy function outside the bar.

As to the function of proxy, that position is called "attorney" and historically was the person who spoke for the principle when he could not be there in person - in the days when geographical distance was more of an obstacle than it is today. Even today we have "attorney-of-fact" registration in the hall of records to record who is the actual person entitled to be proxy for another - and these people don't run into objection from the bar. They can manage property and other affairs including writing of checks. The organized bar has attempted to limit the participation by proxy of person who have not joined their compulsory club, but if the person is weak and harmless, often the court will let him speak, especially if there is a language difference - - or if there is any other reason for which a proxy would benefit the court.

If we were to be in the business of policing proxies then we would first abolish the position of public defender because most of the malpractice action lies there.

The fiduciary function outside the bar

Bankers, stock brokers, attorneys-in-fact, co-signers on joint checking accounts, spouses, and the 16 year old who runs the cash register at McDonalds - these people all perform fiduciary functions - and none need be bar members.

Bar laws are exemplary of much of what is wrong with bad legislation

The codes do not match the common law

When the state bar codifies the common law regarding disbarment it writes lazily and draws the distinctions with a camera instead of a sharp pencil

The codes attempt to modify the common law in a way that everybody partially ignores

Remedy of disbarment is used too rashly today - if it should be used ever.

I challenge you to show me a case where a person should be disbarred. I can show you at least two where the person should not have been disbarred - and there seems to be a pattern of not inviting disbarment candidates to the disbarment hearing.

Bar's only legitimate function is testing and admission - and maybe disbarment for something

grievous.

The definition of moral turpitude should remain what it has always been - not devalued as bar prosecutors would like it to be.

Lawyers may not lawfully be compelled to be super-citizens - because citizens merely definethemselves by how well they serve corporate ficta! Furthermore, it is a denial of equal protection.

1.Any attempt by the state bar or the court to restrain Palaschak's speech constitutes unlawful prior restraint in violation of Near v Minnesota (1931) 75 L. Ed. 1357; 283 U.S. 697; 51 S. Ct. 625. Konigsberg made a Near argument in his successful argument before the U.S. Supreme Court in the blacklisting days. SeeKonigsberg v State Bar of California, et. al. (1957)1 L. Ed. 2d 810 , 353 U.S. 252, 77 S. Ct. 722. The Near argument is applicable and determinative today also.

2.

3.Any person (a prospective client for example) has standing to challenge the infringement of Palaschak's rights just as Dr. Griswold challenged the infringement of his patient's rights in Griswold v Connecticut. Conversely Palaschak has a right under Griswold to vicariously assert the speech rights of other humans.

4.

5.Corporate ficta has learned more by virtue of perpetual life than we humans can learn during our short non-perpetual life. Bills of Pains and Penalties is the issue of this decade. Just as some folks took several decades to learn that McCarthy's blacklisting and Viet Nam were instruments of oppression foisted by corporate ficta on those whose idea of freedom differed from their, so now today Bills of Pains and Penalties (and other hidden complicated dirty tricks and rigged games) are used to further their agenda. If is to be expected that the bar will use an ever evolving arsenal of instrument of oppression.

1.Any subsequent criminal prosecution violates the 1st amendment.

1.The state bar act is unconstitutional as an abridgement of freedom of speech and press.

1.The state bar act as applied to Palaschak violates a multitude of constitutional precepts.

.

Fundamental constitutional Law: A void act is void ab initio. Marbury v Madison.

Marbury v Madison (1803) 2 L Ed 60, 5 U.S. 137 is cited by Palaschak in brief #3596 at page 3.

Brief Remembrance of Outspoken People's Lawyers Previously attacked by the bar

Attorney William Kunstler was sentenced to 4 years in prison by angry Judge Julius Hoffman for his successful defense of the Chicago 7 in 1968. He won on appeal. See In Re Kunstler __ (CA7 Chicago circa 1969). See also Dellinger et al. Dellinger was the lead named defendant in the Chicago 7? See My Life as a Radical Lawyer, the autobiography of Attorney William Kunstler.

Attorney Steven Yagman was purportedly suspended by the secretive standing committee on discipline of the U.S. district court for his out of court writings regarding Judge Keller's alcoholism on the bench. Yagman prevailed - but then the California state bar whacked Yagman for a year.

Attorney Melvin Belli was prosecuted for appearing on a television commercial promoting his favorite brandy.

Attorney Marvin Mitchelson was prosecuted after his rise to fame in the palimony case involving Lee Marvin.

List of Players in the Battle to Free the Human Lawyers

On the Side of Freedom

Former U.S. Attorney General Ramsey Clark, counsel for Steven Yagman, wanted to prosecute the police for busting heads at the Democratic Convention in 1968.

Attorney Steve Yagman of Santa Monica, California

Attorney Gentile of Nevada

Attorney Douglas Palaschak of California

Attorney William Kunstler, now deceased. His biography is My Life as a Radical Lawyer

Attorney Harold Perry made emancipation of human lawyers his life's work, but failed to buy a computer and lost touch with the world.

Our Opposition: The Oppressors, the shills of corporate ficta and instruments of oppression

Diane Yu. Never had a human client in her life. Political appointee from a political family. She is the modern yellow peril - epitome of a race without respect of individualism and human rights. In 1983 she was in charge of grading the bar exam and it was graded wrong for the first time in history. In 1986 she began a crusade to castrate male lawyers resulting in the state bar pseudo court where the prosecution hired the pseudo judges. Palaschak challenged the constitutionality of this court in a lawsuit against the California supreme Court. The court retaliated and purported to disbar Palaschak but such a disbarment is void ab initio.

List of the Top Ten most pertinent cases:

#1 Condon, Estate of (1998) 65 Cal Ap 4th 1198, 76 Cal Rptr 922. Not supervening.

#2 Yagman v Standing Committee of Bar Examiners. Yagman criticized the judges in newspaper.

#3 NAACP v Button. Non bar members gave legal advice.

#4 Newman v Piggie Park (1968) Use of term "Private Attorney General"

#5 United Transportation Workers Union (Later named Teamsters) V State Bar of Michigan. Union gave legal advice.

#6 Schware v Board of Bar Examiners.

#7 Bates v Arizona Legal Clinic Advertised

#8 Craig V Boren (1976). Overbreadth. One defendant asserted rights to the other.

#9 Gentile v State Bar of Nevada. Lawyer gave press conference about clients case.

Notes about my coded shorthand used herein.

Sometimes I used a shorthand to indicate where I refer to a case in one of my numbered briefs or motions. Example: 3596.8 means that I refer to the cited case in motion #3596 at page 8.

The Methodology of Oppression of Human Lawyers by Corporate Ficta

Depublish Cases where individualists win. Publish cases which further corporate agenda.

Example: In Palaschak's case, his victory at the court of appeal was ordered depublished. Then the California Supreme Court appointed its own lying shill lawyer for Palaschak, heard the case without the entire transcript, reversed the court of appeal, and published the decision.

Depublication is ultra vires legislation by a court and violates stare decisis.

Depublication is euphemism created by the oppressive Lucas court to disguise and ancient instrument of oppression - censorship. Logically, after centuries of law we would rarely run into a word that has not been used before. The word "depublication" isn't even in the dictionary. After centuries of law Lucas needed a euphemism - a new word to disguise censorship - because everybody know about censorship - so Lucas calls it "depublication". The court has no business fostering its own agenda by abuse of the depublication rules. The court has no business entering the world of publication decisions. The court achieved that purpose by holding that unpublished decisions may not be cited as binding precedent. This is an abuse of power for at least 2 reasons: #1 Rules of decisions is a legislative subject - and courts may not legislate; #2 We all know about stare decisis; stare decisis is natural and logical - and the court may no more regulate stare decisis than it could regulate gravity.

The efforts of Hyperlaw to eliminate monopolistic activities of West Publishing.

Hyperlaw's website is chock full of authoritative information reporting the extensive litigation between Hyperlaw and demon West Publishing. There is a lot to talk about in this subject area. I refer you to the Hyperlaw web site.

The Age of Communication is freeing us from biased reporting of decisions.

In bygone days, the cost of reporting a decision via paper to a lawyer was more than the cost today. Today most decisions are reported via internet at a cost of virtually zero. In bygone days, the court achieved its societal goal of wide dissemination of its opinions by making a deal with a publisher. In exchange for monopolistic rights to the decision, the publisher assured publication nationwide. There is no longer a need for this deal with the devil.

Effect Depublication by shuffling the forum

For many years complaints about lawyers were heard by a panel of 3 lawyer peers. The decision could be appealed as any ruling by an administrative agency. The result was that decisions about lawyers appeared in the published cases - and rightly they should - so that everybody could see what was happening. Then in 1989 the state bar and the supreme court violated the California constitution and created a state bar pseudo court with its own appellate panel. The result was that the standards of behavior established through decades of decisions were now secretly ignored. The state bar pseudo court hired by state court prosecutors served its employer by changing the standard. The decisions remain hidden from the public because they decisions are not where they were before. The bar and the supreme court effected depublication by causing the decisions to be made my non-judicial bodies and therefore not reported in the case reporters.

Oppressive Admission to the federal court is controlled by federal local rules - an example of

power grabbing and oppression at the highest level. Congress shall make no law abridging speech - and the judges shall make no laws period. Also, the federal constitution does not give anybody the right to prohibit speech or regulate the practice of law in the federal courts - and to the extent that California constitution requires membership in the state bar such violates the nobility clause - and others - and maybe was only added in the constitution of 1949.

The result is that lawyers have rights in federal court that vary from state to state and are controlled by the judges in those local courts. Judges have no legislative authority and their attempt to grab it is unconstitutional.

Debunking Legal Fictions: You have a right to eat and distribute illegal pills and to do other

private things - including writing things for people - and you have a right to speak in public - even in court. Penumbra doctrine - also known as double delta theory in integral calculus.

Griswold v Connecticut (1965) 14 L Ed 2d 510, 381 U.S. 479, 85 S. Ct. 1678. Penumbra. Relaxed standing. Vicarious standing. Cited in Palaschak briefs #3567 at page 1 and #3596 @ 2. Dr. Griswold gave illegal drugs (birth control pills) to his patients. He used relaxed standing to defend his pill distribution by saying that the privacy rights of his patients in their procreative (or not) liberty permitted him to give them the pills. Justice Douglas's legacy to the free world!

Debunking legal fictions: Ignorance of the Law is a Defense. Related Defense is "I contest the

Law"

In People v Goodin (1902) 136 Cal. 455; 69 P. 85. The government ran a road for years through Goodin's ranch. When the government straightened the road, Goodin reclaimed the land on which the old crooked road had run. Then he was accused of destroying state property - the old pavement. Goodin won.

State Bar Taint is an Unconstitutional Bill of Pains and Penalties - Like a Bill of Attainder

Ex Parte Garland (1866?) 18 L Ed 366, 4 Wall 333@ 377 is one of only 20 cases where the supreme court mentions "Bill of Pains and Penalties." A lawyer who had served in the confederacy and subsequently pardoned was challenged by __ when he wanted to practice law again. The supreme court ruled that __ which purported to bar his practice was a bill of pains and penalties - and therefore unconstitutional.

Just as in Criminal cases, each litigant is entitled to show the court what is behind the judicial

decisions that would be an element in curtailing his rights at the instant hearing. All presumptions of regularity are legal fictions.

1.Palaschak contends that his 1992 misdemeanor conviction and subsequent disbarment were unlawful and void ab initio being fruits of the forbidden tree. The presumption of regularity has been destroyed by subsequent actions of Matz - and for other reasons - and the issues is always there because ___ says that the evidence shall not be used for any reason. Palaschak would have challenged the use at his bar hearing of any testimony stemming from Officer David Matz's raid at Palaschak's office in 1991 but it was never offered when Palaschak was there. The Supreme Court never had a complete transcript not a brief of the suppression issues. Now today, after David Matz proved his dishonesty to the world by shoplifting from Petco in 1999 the door is opened to ask the questions that we could not in 1992.

The Lawyer's Right to effective assistance of counsel at Bar Hearings

Palaschak's purported suspension and/or disbarment are void ab initio because the equal protection clause and Argersinger imply that B&P 6085 be interpreted to require appointment of counsel for those who cannot afford it. Palaschak demanded appointment of counsel at his bar hearing and pseudo hearing officer David Wesley erred in ruling that indigents are not entitled to appointed counsel in bar cases. Palaschak's appellate rights at the hearing were denied by the subsequent seizure of his car and temporary banishment from the hearings - not to mention bias due to Palaschak's having sued the bar and the supreme court for another lawyer.

Palaschak demanded counsel at his bar hearing and was denied counsel, the judge incorrectly ruling that the statute did not provide for appointed counsel but his logic is patently defective as follows: The U.S. Supreme Court in Gideon, Argersinger and their progeny has ruled that the equal protection clause is what mandates appointment of counsel for indigents. Obviously the constitution, like B&P 6085, does not in its wording prescribe appointment of counsel, but since the wording is the same and the equal protection clause applies to both, the result is that appointed counsel is required by Cal Bus & Prof Code § 6085.

"§ 6085. Rights of defense to charges Any person complained against shall be given fair, adequate, and reasonable notice and have a fair, adequate, and reasonable opportunity and right . . .(c) To be represented by counsel. . . ."(3)

1.Even the test books are confused (or perhaps obsequious to the bar) and list in the annotations to 6085 cases that were overruled by the U.S. Supreme court specifically an by implication. A 1902 case, Vaughn comes to mind.

A state bar hearing punishes a lawyer for his acts and is therefore quasi criminal and the entire panoply of criminal protections accrue. Spevack v Klein (1967) 17 L Ed 2d 574, 385 U.S. 511; 87 S. Ct. 625.

"The self-incrimination clause of U.S. Const. amend. V, has been absorbed in U.S. Const. amend. XIV, and it extends its protection to lawyers as well as to other individuals, and it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." - Spevack v Klein

1.The bar denied Palaschak his right to confront and cross examine witnesses by banishing him from the hearing for 1.5 days during which time it took testimony from witnesses.

1.Over Palaschak's objection the bar hearing officer, an employee of the prosecutor used evidence stolen from Palaschak's office, a completely innocent information form from a client or job application taken to the police by the bar's witness, an emotionally troubled hysterical woman, the theft having been kept secret from Palaschak until the bar produced its administrative record.

1.The bar failed to comply with discovery. Palaschak submitted detailed and significant special interrogatories that were arrogantly ignored.

Counsel of choice

Twenty opinions of the U.S. Supreme court support the litigants 6th amendment right to counsel of choice. Only one opinion, Leis v Larry Flynt, discusses the rights of out of state attorneys to handle an Ohio case but the lawyers and the court failed miserably by failing to see the obvious 1st amendment right of a person (any person) to speak in this country anywhere. The bar act is an abridgment of speech - just another one of the many abridgments of speech that the bar acts have foisted upon lawyers in the age of the robber barons. The U.S. Supreme court failed us in this case. Although it failed to grant certiorari and hear oral arguments, in nonetheless ruled against Larry Flynt. I cannot understand this anymore than I can understand the California Supreme Court calling me the "appellant" in People v Palaschak where the state appealed to the California Supreme Court which acted rashly without a complete transcript or a valid brief.

A defendant's interest in adequate representation is "perhaps his most important privilege" protected by the Constitution. Powell v. Alabama, 287 U.S. 45, 70. - Dissent in Leis v Larry Flynt et.al. (1979) 58 L Ed 2d 717, 439 U.S. 438, 99 S Ct 698

Palaschak is uniquely qualified to handle the issue of unlawful disenfranchisement by virtue of

his having sued the California Supreme court in federal court on precisely this issue for another client - which is precisely why Palaschak is disenfranchised today - retaliation by the Supreme Court who should have recused itself due to conflict of interest, personal interest, and the implied bias, and the appearance of impropriety and actual impropriety.

Although Palaschak is not an out of state lawyer, he is a wrongfully disenfranchised lawyer who has brooded and pondered the unlawful disenfranchisement issue since 1992 - 8 years. During that time he litigated in behalf of wrongfully disenfranchised lawyers and disenfranchised non-lawyers. Indeeddisenfranchisement is Palaschak's expertise. Unlawful disenfranchisement is precisely the issue facing Dr. Bevan. Palaschak's right to speak and Dr. Bevan's right to have Palaschak speak are both protected political speech the highest classification of protected speech. The constitution says that this right shall not be "abridg[ed]". And of course, the court grants relaxed standing to those advocating the rights of others - and even grants them the status of private attorney general, one who. . .

"obtains. . .not for himself alone but also as a "private attorney general" vindicating a policy that congress considered of the highest priority." - Newman v Piggie Park(1968) 19 L Ed 2d 1263.

Although the Supreme court strangely did not talk about the 1st amendment, it did offer some logic equally applicable to this situation of Dr. Bevan and his wrongfully disenfranchised expert:

"We are persuaded, however, that where a right has been conferred on citizens by federal law, the constitutional guarantee against its abridgment must be read to include what is necessary and appropriate for its assertion. In an age of increased specialization and high mobility of the bar, this must comprehend the right to bring to the assistance of an attorney admitted in the resident state a lawyer licensed by 'public act' of any other state who is thought best fitted for the task, and to allow him to serve in whatever manner is most effective, subject only to valid rules of courts as to practice before them. Cf. Lefton v. City of Hattiesburg, 333 F.2d 280, 285 (5 Cir. 1964). Indeed, in instances where the federal claim or defense is unpopular, advice and assistance by an out-of-state lawyer may be the only means available for vindication." - Spanos v. Skouras Theaters Corp., 364 F.2d 161, 170 (en banc) (CA2 1966).

1.Palaschak's disenfranchisement is a badge of honor because it was imposed unlawfully by the California Supreme Court after he sued them. At every step of the way he has vindicated just licensing issues in the face of oppression by corporate ficta. It is his unlawful disenfranchisement that gave him the motivation to research the issue for 8 years. His disenfranchisement is precisely what makes him the lawyer best equipped for this task!

Palaschak's Right to Effective Assistance of Counsel

Argersinger v Hamlin (1974) 32 L Ed 2d 530 Follow up to Gideon. Amplifies Gideon. Cited in Weinreb.

Cronic, U.S. v Harrison (1984) 466 U.S. 648, 665. Cited by Alderman and Kennedy book In Our Defensepage 402, 259. Companion case defining the standard for competence is Strickland v Washington 466 U.S. 688. Kennedy and Alderman discuss Harrison Cronic in detail in the book In Our Defense on pages 259 et seq.

Lilburne's case. (1648): The right to counsel in this country was afforded to at least one defendant nearly 2 centuries prior to the 6th amendment as explained by Ira Glasser of the ACLU in his book Visions of Liberty:

In 1637, a Puritan activist named John Lilburne imported and distributed various political tracts and was brought before the Star Chamber. Lilburne refused to be examined under oath, claiming that it violated "the law of the land" and invoking the Magna Carta. Condemning the oath as a procedure that was fundamentally unfair, Lilburne said that he would not take it even "though I be pulled to pieces by wild horses." Lilburne was held in contempt of court, publicly whipped, fined, and jailed in solitary confinement. He wasn't released until 1641. But his crusade for fair procedures and his willingness to absorb severe punishment rather than forsake principle inflamed the public - on both sides of the Atlantic - and Lilburne became a great symbol. He suffered, but not without effect: In 1645 Parliament set aside the judgment again Lilburne, finding that it had indeed violated "the law of the land and Magna Carta." In 1648 he was granted damages for his unjust imprisonment.. .

Lilburne led the Levelers. He was arrested again and again and died in prison at age 43. . .

. . . At his very last trial he won the then unprecedented right to receive a copy of the charges again him and to be represented by a lawyer [a right demanded by defendant Palaschak herein]. - quotation fromVisions of Liberty(4) by Ira Glasser.

Criminal rights of Defendants Generally

Weinreb, Leading cases in Constitution rights of defendants - or something like that. 1982 edition. Stolen by jail guards in Illinois after Ventura extradition agent Al Wiegand refused to permit Palaschak to bring his law books with him.

Gideon v Wainwright (1963) 372 U.S. 335. Henry Fonda portrayed Gideon in the movie Gideon's Trumpet.Defendants are entitled to appointed counsel even in non-capital cases. The court extended this right even further in Argersinger.

Griffin v Illinois (1956) 100 L Ed 891, 351 US 12, 79 S Ct 585, 55 ALR2d 1055 - Indigent's right to appointed counsel on first appeal of right. You have a right to a free transcript on your 1st appeal. Traffic court thwart this right in California by making you jump through a hoop and attempting to make you agree to a settled statement on appeal - which precludes you from later thinking up issues that are apparent to the skilled lawyer looking at a real transcript.

Overbreadth pertaining to the rights of attorneys and others.

History of Oppression of Lawyers by Corporate Ficta and other tyrants

In England the power of the press was recognized - and taken from the people. We must remember that although we take our orderly system of courts from England, England is an older country infected with the disease of imperialism and oppression. It is like comparing America's older diseased east coast to the newer freer west coast. In the 1500's or 1600's England forbade all printing on unlicensed printing presses. John Stuart Mills protested. In America we had the trial of Peter Zenger for seditious libel. Zenger's jury acquitted him and then the judge put the jury in jail! The first amendment is meant to prohibit any abridgment of printing or speaking - and that is obvious from the historical context - and now the current 5 generations have obviously forgotten and they have permitted the lawyer licensing acts to abridge the speech rights of lawyers. These bar acts are a product of corporate ficta and the robber barons as evinced by the date of their inception.

Backpedaling by the bar: Things that were illegal even for licensed lawyers during the window of bar oppression

Being a woman. Myra Bradwell was denied admission to the Illinois bar in 1869 due to her being a married woman. The U.S. Supreme Court affirmed the denial of Bradwell. Bradwell v. People of State of Illinois, (U.S. Ill. 1872) 83 U.S. 130, 21 L.Ed. 442, 16 Wall. 130. About he same time Clara Foltz became the first woman to practice in California despite a statute restricting the practice of law to "any white male citizen". See A History of America Law by Professor Lawrence Friedman, page 639 and the bibliographies therein.

Being black. See History of American Law, page 639. California only permitted white males to practice law at first.

Living in another state - Piper, N. Hampshire v (1985) 84 L Ed 2d 205. Kathryn Piper, a Vermont resident passed the New Hampshire bar. New Hampshire barred her from practicing until she moved across the river into Hampshire. Briefs of amici curiae urging the U.S. supreme court to defy the constitution and uphold this oppressive and unconstitutional rule were filed by Rehnquist and the following 12 backwards and oppressive states: Iowa Tennessee Virginia, Hawaii (by Tany Hong, Attorney General), Indiana, Kansas, Missouri, Nevada, Ohio, Wisconsin, Wyoming, North Carolina, Texas. Kathryn Piper won her right to travel in interstate commerce as late at 1985!

Advertising

Talking about a case with the press.

Soliciting

Okay, advertising is permitted, but not direct mail solicitation. Wrong. Ficker v Curran (1996) 950 F Supp 123, affirmed 119 d 3d 1150 overturned Maryland's ban on direct mail solicitation of persons accused of jailable traffic offenses.

Talking to jurors: Rapp v Disp. Bd. Of Hawaii Supreme Court (Feb 1996) 916 F Supp 1525 pro se lawyer Rapp desired to speak with jurors after their verdict. Hawaii disciplinary rules prohibited this without the court's permission. Rapp sued for declaratory and injunctive relief against the Hawaii Supreme Court (as did Palaschak's client against the California Supreme Court) and prevailed. He obtained a preliminary injunction prohibiting enforcement of the rule.

Speaking in court after being convicted of failure to appear on traffic tickets and eating LSD. This is Palaschak's situation.

Things that were illegal in England without a license

Printing!

Things that were illegal for lawyers before the 1st amendment - and even after for a while.

Seditious libel - Speaking out against the government.

The lawyers are enjoying more freedom as a result of having challenged the various bar acts. They have litigated to be able to advertise, to associate, to recommend lawyers, and otherwise speak and write. Palaschak now says that lawyers should be able to speak in court without license!

California Supreme Court had a personal interest in the case. Palaschak was counsel for a lawyer

who sued the California Supreme Court. The court retaliated and purported to take Palaschak's license but the taking was void ab initio for a multitude of constitutional infirmities.

In Palaschak's case his license is still intact because the act of taking it was void ab initio. The California Supreme Court reportedly purported to take away Palaschak's license after Palaschak sued the California Supreme court for a client lawyer whose license had been unlawfully suspended by the Supreme Court unconstitutional creation, the state bar pseudo court.

Methods of Oppression: Punishing the lawyer for the sins of the client

Double Jeopardy and the beginning of the recent attack on human lawyers by corporate ficta

Kelley, Luan. California case. This lawyer received her 2nd DUI. The state bar ignored the lack of nexus and ignore the double jeopardy clause - and the preemption by the DMV. The bar suspended her bar license.

Overbreadth cases pertaining to lawyers and others

Condon, Estate of (__1998) 65 Cal App 4th 1138, 76 Cal Rptr 2d 922. Not supervening.

Baird v State Bar of Arizona (1970) 27 L Ed 2d 639, Annotation @953 Subject: Overbreadth. Bar applicant refused to answer question in bar application regarding his past to age 16 regarding membership in organizations advocating overthrow of government. Note that Judge McMecarch or whomever in Mariposa county refused to take the loyalty oath part of the oath specifically quoted in the California constitution.

Bates v Arizona (1977) 53 L Ed 2d 810. Legal Clinic Advertised. Subject: Overbreadth and 1st amendment. The 6th most pertinent case here.

Cohen v California (1971) 30 L Ed 2d 124. "Fuck the draft" written on the back of jacket in court hallway.Overbreadth was the basis of this decision.

Doran v Salem Inn (1975) 45 L Ed 2d 648. Overbreadth. 3 stripper bars. Ballet Africanus. Leading case. Joe Redner, famous owner of the leading stripper bar in Tampa recognized the name of this case which I chatted with him in Jan 2000. Redner is facing enforcement of an overbroad statute to stop lap dances in his night clubs.

Erznoznik v City of Jacksonville ( ) 45 L Ed 2d__. Overbreadth. Baby's butt argument regarding drive in theater. The statute was declared unconstitutional because it was so broad as to include the depiction of a baby's butt which the court felt, would not be offensive to anybody.

Ficker v Curran 950 F Supp 123, Affirmed at 119 F3d 1150.Attorney solicitation. Overbreadth regarding bar acts regulating attorneys. Attorney solicitation law was held unconstitutional. Used in brief 3596 at page 10.

Houston v Hill (1987) 96 L Ed 2d 390. Pick on somebody your own size. Overbreadth. Charles Alan Wright argued this case. "Interview" with police as they were chasing a suspect. Defendant said "Why don't you pick on somebody your own size!" The statements were not fighting words or obscenity. The Supreme Court ruled in favor of the guy shouting at police as they were chasing a suspect. It is okay to be provocative. Any non-speech was pre-empted by state statute. Extrapolation from Houston case: With regard to laws against attorneys speaking without license: Any non-truth is pre-empted by fraud statutes. Any truth is protected by the 1st amendment. The supreme Court said that the city "had numerous opportunities to narrow and has not done so." Similarly the state bar act suffers from overbreadth and the implied and also explicit ambiguity of defining what constitutes the practice of law.

Keyishian v Board of Regents (1967) 17 L Ed 2d 629, 385 U.S. 589. Pedler registration. Overbreadth.Ordinance required solicitors to register with the police. Ruled unconstitutional.

McSurely v Ratliff (1967) 282 F Supp 848 (E.D. Ky. 1967). Anti communist law. Raid. Court declared Kentucky's anti sedition law unconstitutional. Case arose from overbreadth, an unjustified raid based on an overbroad statute. See McSurely v McClellan (1976) 553 F2d 1277, 1282, note 9 (D.C. Cir. 1976)(en banc) discussing a safekeeping order for the personal diaries and other seized items of McSurely. The case ordering the return of the documents of McSurelys is McSurely v Ratliff (1968) 398 F2d 817 (6th Cir 1968). The endnotes of In Our Defense contain an excellent brief regarding the search and seizure issues in a politically motivated raid.

Hackin v Lockwood (1966) 361 F2d 499. District court held that Arizona's ABA requirement is constitutional. The court skirted the issue by holding that requiring graduation from an accredited school is constitutional - avoiding completely the issue that ABA requirements were instituted at the behest of Carnegie, a paradigm robber baron, and foisted upon the public in the age of the robber barons with the obvious effect of promoting corporate ficta and limiting the practice of law and even the teaching of law to the wealthy. We can see the folly now in retrospect with the multitude of non-ABA schools in California.

Hackin v Arizona (1967)19 L. Ed. 2d 347; 389 U.S. 143; 88 S. Ct. 325. Overbreadth case. There was no written majority opinion. Douglas's strong and cogent dissent shames the majority in this case. Lawyer Hackin having been denied admission to the Arizona bar nonetheless defended a guy who was denied counsel by the court because the proceeding was, hypertechnically, civil in nature, habeas corpus. Hackin stepped forward where bar volunteers failed to do so, defended the otherwise defenseless, and was prosecuted for practicing without a license. Maybe he failed to write a good brief - although he persuaded Justice Douglas.

Deprivation of License Requires Prior Due Process; It is a property interest.

In Re Ming 469 F 2d 1353 (7th Cir. 1971) Even federal court rules must render due process. Disciplinary proceeding. The Executive Committee of the United States District Court for Northern District of Illinois issued suspension order, and appeal was taken. The Court of Appeals, Pell, Circuit Judge, held that if a conviction itself is to be used to show commission of underlying acts which are of such nature as to form basis for disbarment or suspension, conviction must have reached finality, or at least to the extent of exhaustion of direct appeals. In addition, the Court held that failure to afford hearing prior to issuing order of suspension based on misdemeanor conviction violated due process. Reversed. If a conviction itself is to be used to show commission of underlying acts which are of such nature as to form basis for disbarment or suspension, conviction must have reached finality, at least to the extent of exhaustion of direct appeals. U.S. Dist. Ct. Rules, N.D. Ill., General Rule 8. District courts are free to adopt their own local rules defining grounds for disbarment and suspension and the procedures to be followed; however, such rules must meet the essential requirements of due process. License to practice law constitutes a type of "new property" the divestment of which cannot be affected without affording substantial due process, including the opportunity to be heard and to confront and cross-examine adverse witnesses. Failure to afford hearing prior to issuing order of suspension based on misdemeanor conviction violated due process.

Bell v Burson (1971) 26 L Ed 90, 401 US 535 State cannot take a driver license without hearing. Used in motion 3596 at page 3.

In Re Crow (1959) 3 L Ed 2d 1025-27. Annotation 3 L Ed 2d. Essentially overruled by Ming. Non criminal disbarment. Attorney disbarred in Ohio. U.S. Supreme Court issues OSC. He responded. Douglas dissents that they should have appoint a committee.

Annotation re In Re Crow 3 L Ed 2d 1960-65

Lawyers Practicing in California with no California Bar License

Birbrower v Superior Court of Santa Clara County (1998) 70 Cal Rptr 2d 304, 17 C 4th 119, 949 P2d 1. New York lawyer was permitted to collect part of his fees for work done in California? This was not a 1stamendment issue - but a fee collection case.

The multitude of classes of non lawyers permitted to practice law in California. This is subdocument #5939. See www.lawyerdude.netfirms.com/5939.html

Prisoners can be lawyers for other prisoners. Johnson v. Avery (1969), 393 U.S. 483 www.lawyerdude.8k.com/Avery.html

Where civil rights lawyers are otherwise unavailable, lawyers from other jurisdictions must be brought in.

Any next friend can apply for a writ of habeas corpus. U.S. v Houston 273 F 915, 916 cited by Douglas in Hackin v Arizona 19 L Ed 2d 347.

Non lawyers can be executors and administrators in probate court.

Non lawyers can appeal decisions of the workers compensation board on behalf of clients?

Non lawyers can appeal decision of social security board on behalf of clients?

Cases Applying the Clear and Present Danger Test to Lawyers and others

Brandenburg v Ohio (1969) 23 L Ed 2d 430, 395 US 444, 89 S Ct 1827. Clear and present danger not there for Klan speech. Clarence Brandenburg was Ku Klux Klan member. Clear and Present Danger test was finally used to overrule an obstruction to speech. Compare to Debs case circa 1914 where clear and present danger test was not fully ripe. Used in brief 3596 at page 7 and 8.

Bridges v California (1941) 314 US 263, 62 S Ct 194. Extremely Serious and Very Imminent test. Contains the text: "Extremely Serious and Very Imminent" (clear and present danger - how clear and how present). Newspaper editorial talked about a present case in violation of court gag order. Cited for contempt of court. Overruled as I recall. Cited in brief #3596 at page 6.

Craig v Harney (1946) 91 L Ed 1546, 331 U.S. 367. Criticism of judge not clear and present danger. Regarding clear and present danger test: Mere possibility of danger is not enough. Used in briefs at 3567.1, 3569.1, 3596.6. Case is on point because it was about a Newspaper being critical of a layman as judge. Hey, I criticized a judge for Melvin Loser and was prosecuted for it also.

Debs v U.S. (1919) 63 L Ed 566, 249 U.S. 211. 1917 draft objector. Predecessor to Brandenburg in 1969. 1917 draft interference case. Used in brief at 3596.7

Gentile v State Bar of Nevada (1991) 115 L Ed 2d 888. Nevada bar act unconstitutional. Clear and Present danger test controls here. Gentile gave a press conference about a high profile case that he was handling. The bar tried to discipline him. The U.S. Supreme Court declared that the Nevada bar act was unconstitutional! Palaschak contends herein that the California bar act is unconstitutional for a multitude of infirmities, many arising since the 1986 attack on human lawyers by Diane Yu, a genetically weak socialist, a shill for corporate ficta and the enemy of individualism which is the essence of America.

McSurely v Ratliff (1967) 282 F Supp 848 (E.D. Ky. 1967). Hysterical raid held illegal. Anti sedition act unconstitutional. Kentucky's anti sedition law is unconstitutional. Mc Surely's statements are protected by the clean and present danger test. An overbroad statute combined with ignorant officials caused an unjustified raid. See McSurely v McClellan (1976) 553 F2d 1277, 1282, note 9 (D.C. Cir. 1976)(en banc) discussing a safekeeping order for the personal diaries and other seized items of McSurely. The case ordering the return of the documents of McSurelys is McSurely v Ratliff (1968) 398 F2d 817 (6th Cir 1968). The endnotes of In Our Defense contain an excellent brief regarding the search and seizure issues in a politically motivated raid.

Relaxed Standing to Defend Fundamental rights such as Equal Protection. Vicarious Standing.

Craig v Boren (1976) 50 L Ed 2d 397. Relaxed standing to challenge denial of equal protection. Vicarious standing to defend fundamental rights. Compare to private attorney general.

Cases Pertaining to Rights of Prisoners to Access to the Courts

Johnson v Avery 1969: www.lawyerdude.8k.com/Avery.html

Gluth v Kangas (1988) 773 F Supp 1309 @ 1321 (D Ariz) Right to xerox copies in jail. "Draconian" copying by hand is not required. Jails and prisons must provide copying service - but Illinois jail denied Palaschak copying rights (while allowing other prisoners copying services - but only after Palaschak began litigating. Cited in Palaschak brief #3591 at page 0.1.

Procunier v Martinez (1974) 40 L Ed 2d 224, 416 US 396, 84 S Ct 1800 Mail is a right.(Added 7 August 2001) This was a class action. Procunier, Director of California Dept. of Corrections told prisoners that mail was a privilege and not a right - until somebody litigated this case. I read about this case in Lawrence Friedman's 1993 book entitled Crime and Punishment in American History.

Revisisions and additions yet to be made:

There are 20% more cases to be added from my handwritten 1999 brief in folder #99-1:

Procunier v Martinez. (1974) Before this case, California told prisoners that mail was a privilege - not a right.

Train of cases: United trans v Michigan bar; UMW v Illinois bar; Brother hood v Virginia bar

List of cases that have not yet been transcribed from the original handwritten brief:

Marbury v Madison (1803) 2 L Ed 60, 5 US 137, a void act is void ab initio

Bradwell v. People of State of Illinois, (U.S. Ill. 1872) 83 U.S. 130, 21 L.Ed. 442, 16 Wall. 130.)

Powell v Alabama

Ruffalo (1968) 20 L Ed 2s 117, 390 US 544, 88 S Ct 1222 and 20 L Ed 2d 1436 Attorney's right to practice in federal court as affected by his disbarment or suspension in sate court of other federal court.

Schware

Shuttlesworth v Birmingham

Strickland

maybe Supreme Court of New Hampshire v Piper (1985) 84 L Ed 2d, 470 US 274, 105 S Ct 1272.

Theard

U.S. v Guest

U.S. v Harrison Cronic

U.S. v Russell

William v Illinois

Wolf v Colorado

Yagman v Standing Committee. Standing Committee on Discipline of the United States District Court for the Central District of California v Stephen Yagman, defendant (9th Circuit, 1995) 55 F.3d 1430; 1995 U.S. App. LEXIS 12948; 95 Cal. Daily Op. Service 3958; 95 Daily Journal DAR 6873. See also the other preceding Yagman cases.

Younger v Harris

(ex part young - Minnesota)

Zenger, Peter

The following annotations citing Brandenburg need a home: Brandenburg v Ohio (1969) 23 L Ed 2d 430, 395 US 444, 89 S Ct 1827. Clarence Brandenburg was Ku Klux Klan member. Clear and Present Danger test was finally used to overrule an obstruction to speech. Used in brief 3596 at page 7 and 8. Brandenburg is cited all the major constitutional law treatises and the following treatises:

21 L Ed 2d 976 The Supreme Court and the right of free speech and press,

38 L Ed 2d 835 The Supreme Court's development of the "clear and present danger"rule and the related rule concerning advocacy of unlawful acts as limitations on the constitutional right of free speech and press,

45 L Ed 2d 725 Supreme Court's views as to overbreadth of legislation in connection with First Amendment rights,

86 L Ed 758 Right of petition and assembly under the Federal Constitution's First Amendment - Supreme Court cases,

96 ALR Fed 26,

20 ALR4th 327.

Footnotes:

1. Bell v Burson (1971) 29 L.Ed.2d 90, 402 U.S. 535, 91 S.Ct. 1586. Driver license may not be taken without a hearing.

2. Alderman, Ellen, and Kennedy, Caroline. In Our Defense. Avon Books. New York. 1991. ISBN0-380-71720-4. Available in paperback from Barnes and Noble. $13.50.

3. Full text of 6085: § 6085. Rights of defense to charges Any person complained against shall be given fair, adequate, and reasonable notice and have a fair, adequate, and reasonable opportunity and right:
(a) To defend against the charge by the introduction of evidence.
(b) To receive any and all exculpatory evidence from the State Bar after the initiation of a disciplinary proceeding in State Bar Court, and thereafter when this evidence is discovered and available. This subdivision shall not require the disclosure of mitigating evidence.
(c) To be represented by counsel.
(d) To examine and cross-examine witnesses.
(e) To exercise any right guaranteed by the California Constitution or the United States Constitution, including the right against self-incrimination.
He or she shall also have the right to the issuance of subpoenas for attendance of witnesses to appear and testify or produce books and papers, as provided in this chapter.

4. Visions of Liberty, Ira Glasser (of the ACLU), 1991, Little, Brown, and Company, New York, page 159 et. seq. Talks about Lilburne's case from 1648 wherein Lilburne successfully argued for appointed counsel. Available at Port Hueneme library.

Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal [118 U.S. 356, 374] hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution

Yick Wo v Hopkins, Sheriff (1886) 118 U.S. 356

http://www.lawyerdude.netfirms.com/yickwo.html

Topical Index. Click here for the Index to Brief 3789.

Why so many worry's about a bunch of rangers coming and killing a bunch of mexicans? tony vendido knows............

2009-09-12T23:07:00.000-07:00

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Case Search Results Case Search Results on Case # 13-02-00130-CV

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Case Information:
Case Number: 13-02-00130-CV
Date Filed: 3/4/2002
Style: SISTER CARMEN DE LLANO, ET AL.
v.: PABLO SUESS, AND FROST NATIONAL BANK, TRUSTEES OF THE JOHN G. KENEDY, JR. CHARITABLE TRUST
Original Proceeding: No
Transferred From:
Transfer In Date:
Transfer Case No:
Transferred To:
Transfer Out Date:

Trial Court Information:
Trial Court: 206th District Court
Trial Court Judge: Hon. Rose Guerra Reyna
Trial Court Case #: C-291-93-D
Trial Court Reporter: Michelle Robertson
Punishment:

Parties:
Party Party Type
Carmen de Llano, et al. Appellant
Pablo Suess, and Frost National Bank, Trustees of the John G. Kenedy, Jr., Chari Appellee

Case Events:
Date Event Type Description
3/11/2009 Case stored
8/14/2006 Record sent to storage
6/7/2006 Form to request stored records
12/9/2005 Record sent to storage
9/30/2005 Record sent to storage
9/23/2005 record sent
9/20/2005 Mandate Issued
7/5/2005 Address Change Appellee
6/16/2005 Miscellaneous Motion Disposed Appellant
6/16/2005 Memorandum opinion issued
1/20/2004 Letter brief filed Appellee
10/16/2003 Motion for leave to file Post Sub Brf DISPOSED Appellee
10/1/2003 Post submission brief filed Appellee
10/1/2003 Motion for leave to file post submission brief Appellee
10/1/2003 Filing Fee Paid Appellee
10/1/2003 Post Submission brief received Appellee
8/14/2003 Letter Marked 'Received' Appellant
7/24/2003 supplemental clerk's record
7/17/2003 ADVISORY - tickler as to event to come
6/26/2003 Copy of Letter Appellee
6/19/2003 Motion for leave to file Reply Brief DISPOSED Appellant
6/18/2003 Record checked in
6/18/2003 Additional copy of a letter Appellee
6/18/2003 Additional copy of a letter Appellee
6/17/2003 Letter sent Appellee
6/12/2003 ADVISORY - tickler as to event to come Appellant
6/9/2003 Record checked in Appellant
6/9/2003 Exhibit Used in Oral Argument Appellant
6/9/2003 Submitted
6/9/2003 Additional copy of response Appellee
6/9/2003 Objection filed Appellee
6/6/2003 Miscellaneous Motion Disposed Appellant
6/6/2003 Objection filed Appellee
6/6/2003 notice filed Appellant
6/6/2003 Additional copy of response Appellant
6/6/2003 Objection filed Appellee
6/5/2003 Objection filed Appellee
6/5/2003 Response to _____________. Appellee
6/5/2003 Objection filed Appellee
6/5/2003 Response to _____________. Appellant
6/4/2003 Motion for leave to file reply brief Appellant
6/4/2003 Filing Fee Paid Appellant
6/4/2003 Miscellaneous Motion Appellant
6/4/2003 Filing Fee Paid Appellant
6/3/2003 Reply Brief Filed Appellant
6/3/2003 Reply brief markd Appellant
5/22/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
5/20/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
5/15/2003 Submission Edinburg
5/12/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS
5/8/2003 Mo ext. of time to file REPLY BRIEF Disposed Appellant
5/7/2003 Submission Edinburg
4/29/2003 Submission Edinburg
4/24/2003 Mo -ext of time to file REPLY BRIEF Appellant
4/24/2003 Filing Fee Paid Appellant
4/23/2003 Letter filed Appellant
3/31/2003 Record returned Appellee
3/28/2003 Copy of Letter Appellee
3/28/2003 Oral argument requested Appellee
3/28/2003 Brief Filed Appellee
3/28/2003 Oral argument requested Appellee
3/28/2003 Brief Filed Appellee
3/18/2003 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellee
2/13/2003 Mot. for Ext. File Brief Disp. Appellee
2/4/2003 Mot. for Ext. to File Brief Joint - Appellant and Appellee
2/4/2003 Filing Fee Paid Appellee
1/30/2003 Miscellaneous Motion Disposed Appellee
1/17/2003 Filing Fee Paid Appellee
1/17/2003 Miscellaneous Motion Appellee
1/16/2003 supplemental reporter record filed
1/16/2003 Supplemental Reporter Record Pages
1/10/2003 Appendix filed Appellant
1/9/2003 Mot. for Ext. File Brief Disp. Appellee
12/23/2002 Mot. for Ext. to File Brief Appellee
12/19/2002 Miscellaneous Motion Disposed Appellant
12/19/2002 Mot. for Ext. File Brief Disp. Appellee
12/11/2002 Mot. for Ext. to File Brief Appellee
12/11/2002 Filing Fee Paid Appellee
12/9/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellee
12/6/2002 Response to _____________. Appellee
12/6/2002 Clerk's Record properly prepared Appellant
12/5/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
12/5/2002 Mot. for Ext. File Brief Disp. Appellant
12/4/2002 Exhibits Returned after being checked out.
12/4/2002 Filing Fee Paid Appellant
11/26/2002 Additional Copies of Brief Appellant
11/26/2002 Additional Copies of Misc. Motion Appellant
11/25/2002 Brief Filed Appellant
11/25/2002 Case ready to be set
11/25/2002 Record checked in
11/25/2002 Brief received. Appellant
11/25/2002 Oral argument requested Appellant
11/25/2002 Miscellaneous Motion Appellant
11/19/2002 Mot. for Ext. to File Brief Appellant
11/19/2002 Filing Fee Paid Appellant
11/14/2002 Mot. for Ext. File Brief Disp. Appellant
11/8/2002 Filing Fee Paid Appellant
11/8/2002 Mot. for Ext. to File Brief Appellant
11/8/2002 Green card in Appellant
11/4/2002 10 day letter sent Appellant
10/30/2002 supplemental clerk's record District/County Clerk
10/3/2002 Mot. for Ext. File Brief Disp. Appellant
9/24/2002 Supplemental Exhibits Filed Court Reporter
9/19/2002 Green card in
9/18/2002 Mot. for Ext. to File Brief Appellant
9/18/2002 Filing Fee Paid Appellant
9/18/2002 Copy of Letter Appellee
9/16/2002 10 day letter sent Appellant
9/6/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
8/28/2002 supplemental clerk's record
8/20/2002 supplemental clerk's record
8/20/2002 Copy of Letter Appellee
8/14/2002 CHECKOUT SHT FOR REQUESTED DOCUMENTS Appellant
8/7/2002 Reporter's Record Filed
8/7/2002 Court Reporter Pages
7/15/2002 Appearance of Counsel Appellee
7/9/2002 Exhibits Filed Court Reporter
7/9/2002 Court Reporter Pages Court Reporter
7/9/2002 Reporter's Record Filed Court Reporter
7/8/2002 Statement Filed Appellee
7/1/2002 request for documents Court Reporter
6/24/2002 request for documents Court Reporter
6/10/2002 ADVISORY - tickler as to event to come Court Reporter
5/20/2002 request for documents Court Reporter
4/29/2002 Clerk's Record Filed
4/22/2002 30 Day Letter Sent Court Reporter
4/22/2002 docketing statement filed Appellee
4/22/2002 Statement Filed Appellee
4/22/2002 docketing statement filed Appellant
4/22/2002 Statement Filed Appellant
4/19/2002 ADVISORY - tickler as to event to come Court Reporter
4/16/2002 docketing statement filed Appellee
4/12/2002 30 Day Letter Sent Court Reporter
4/12/2002 30 Day Letter Sent District Clerk
4/12/2002 Notice for docketing statement Appellee
4/12/2002 Notice for docketing statement Appellant
4/12/2002 Copy of Letter Appellee
3/4/2002 Filing Fee Paid Appellant
3/4/2002 Notice of Appeal Filed Appellant

Calendars:
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9/20/2005 Case Stored Case stored

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13 counts of lies.......U gots A lot of xplaining 2 due b4 luz ahora

2009-08-18T23:26:00.000-07:00

Fraud enforcement is firing John Hubert ,Mary Cano,Noel Pena Imelda Perez Guevara would be a start for mail fraud tampering with govt records ......

2009-06-22T01:42:00.000-07:00

e Overview Table of Contents
Controlling Fraud in Medicaid and Other Welfare Programs - S.B. 30

by Senator Zaffirini, et al.

House Sponsor: Representative Maxey

§ Requires the Texas Department of Human Services (DHS) to take a number of steps to improve the detection and enforcement of fraud under the food stamp and financial assistance program. These include:

§ improving the time it takes to establish an overpayment claim;

§ using the telephone to collect reimbursement from a person who received a benefit in error;

§ participating in the Federal Tax Refund Offset program;

§ keeping records of fraud cases referred for prosecution;

§ using a computer system to compare state information with federal immigrant and foreign visitor information to prevent people from illegally receiving public assistance benefits;

§ identifying Medicaid recipients who are eligible to receive similar assistance under Medicare and analyzing claims to ensure that allowable Medicare payments are sought first, and matching Medicaid claims to determine if other programs should appropriately pay the claims; and

§ identifying each Medicaid service under which the state is eligible for enhanced federal reimbursement and ensuring that the state receives the highest reimbursement.

Fraud Detection and Prevention

§ Requires the Health and Human Services Commission (HHSC) to set a minimum goal for DHS recovering a percentage of benefits that were granted in error.

§ Requires reduction in general revenue appropriation if DHS failed to meet its goal.

§ Allows HHSC to grant an award to an individual who reports fraud or abuse of funds in Medicaid.

§ Makes HHSC, through a new office of investigations and enforcement office, responsible for investigating and enforcing fraud in health and human services.

§ Requires HHSC and the office of the attorney general (OAG) to take a number of joint actions on Medicaid fraud. These include: signing a memorandum of understanding on developing and implementing joint written procedures for processing fraud cases; preparing reports on fraud detection and prosecution activities; signing a memorandum of understanding for HHSC to provide investigative support on certain cases, and cooperating with entities participating in "Operation Restore Trust," a federal fraud detection program.

§ Prohibits HHSC and the OAG from collecting investigation and attorney's fees unless the state gets a penalty, restitution, or other reimbursement. Requires HHSC to refer cases to local prosecuting attorneys if the office of the attorney general fails to act within 30 days.

§ Requires HHSC to develop a fraud detection training program.

§ Requires HHSC to use learning or neural network technology to identify and deter fraud in Medicaid.

§ Establishes the Medicaid and Public Assistance Fraud Oversight task force to assist HHSC in improving the efficiency of fraud investigations and collections.

§ Requires a number of actions and techniques by HHSC to improve fraud detection and prevention. These include:

§ compiling statistics on fraud, publicizing successful fraud prosecutions prevention programs, and ensuring that a toll-free number is available for reporting fraud;

§ developing a cost-effective method of identifying applicants for public assistance in Texas counties bordering other states who are already receiving assistance in those states; and

§ verifying automobile information used in determining eligibility and establishing a computer matching system with the Texas Department of Criminal Justice (TDCJ) to prevent someone in prison from illegally receiving public assistance benefits.

§ Consolidates staff and transfers responsibilities to HHSC from DHS' utilization and assessment review function and TDH's claims review and analysis group and policy and data analysis group.

§ Requires certain actions of DHS in fraud detection and enforcement. These include:

§ using private collection agents as an additional method to collect reimbursements for benefits granted in error;

§ studying the impact of expedited food stamp delivery on fraud; and

§ studying the feasibility of collecting benefits granted in error by garnishing wages or filing property liens.

§ Requires advance authorization for ambulance transportation except for emergencies.

§ Requires actions to ensure that a child's durable medical equipment provided under Medicaid is as prescribed, fits, and that the family is instructed in its use.

§ Provides for surety bonds for each provider of medical assistance in a type of service that has demonstrated significant potential for fraud and abuse.

§ Authorizes certain agencies to obtain criminal history records relating to a Medicaid provider or a person who applies as a provider.

§ Requires certain information and other contractual, disclosure, and audit provisions from managed care organizations that contract with Medicaid.

Fraud Enforcement

§ Requires HHSC to establish a pilot program for conducting random on-site reviews of persons who apply to provide Medicaid health care services.

§ Requires HHSC to develop a new provider contract for health care services that contains provisions designed to strengthen HHSC's ability to prevent Medicaid fraud.

§ Requires TDH to develop a competitive process for obtaining durable medical equipment.

§ Requires TDH to conduct an automated review of physician, laboratory, and radiology services to identify improper billing practices.

§ Establishes administrative penalties for false claims or failure, to provide health services required under contract.

§ Provides for deductions from lottery winnings for a person who has been determined to be delinquent in reimbursing DHS for errors in food stamp or financial assistance.

§ Provides that it is unlawful for managed care organizations contracting for Medicaid to fail to provide required Medicaid health care services, to fail to provide required information, to engage in fraudulent activity involving enrollment of a person, or to obstruct an investigation by the attorney general.

§ Increases civil penalties for violations and adds special penalties for incidents involving children, elderly or disabled persons.

§ Requires certain agency directors to suspend or revoke a provider agreement and other permits for a person who is found liable under this section. Bars persons found liable from providing Medicaid services for 10 years or longer.

§ Authorizes a person to bring a civil action under certain provisions relating to Medicaid fraud.

§ Provides for actions by a person who is discharged or discriminated against due to a lawful act under certain provisions on Medicaid fraud.

§ Establishes a range of criminal offenses (misdemeanors and felonies) for unlawful acts under certain provisions on Medicaid fraud, including revocation of certain health professional licenses for felony convictions.

§ Provides for suspension of drivers' licenses or recreational licenses issued by the Parks and Wildlife Department for failure to reimburse DHS for an error in food stamps or financial assistance in excess of $250.
Top

Increased Penalties for Medicaid Fraud - H.B. 1637

by Representative Alvarado

Senate Sponsor: Senator Carona

§ Increases civil penalties if a false statement or representation under a Medicaid claim results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.

§ Bars a person found liable for this action from providing or arranging for Medicaid health care services for 10 years.

§ Authorizes a period of ineligibility longer than 10 years to be provided by rule.

§ Exempts a person who operates a nursing facility from both Medicaid ineligibility provisions.

§ Permanently prohibits a person from providing or arranging for Medicaid health care services if the person is convicted of Medicaid fraud, and the person's fraudulent act results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.

§ Makes a person who commits certain unlawful acts liable to the state for an increased civil penalty for each act that results in injury to an elderly person, a disabled person, or a person younger than 18 years of age.

§ Requires commissioners or directors of certain human services or health care regulatory agencies to suspend or revoke provider agreements, permits, licenses, or certifications, if a person has been found liable for civil remedies under Medicaid fraud.

§ Exempts a person who operates a nursing facility from mandatory suspension or revocation, but gives the commissioners or directors authority to suspend or revoke provider agreements, permits, licenses, or certifications.

§ Prohibits a person found liable for civil remedies under Medicaid fraud from providing or arranging for Medicaid health care services for 10 years.

§ Exempts a person who operates a nursing facility from both Medicaid ineligibility provisions.

§ Authorizes professional disciplinary actions under applicable licensing law or rules for a person who commits an unlawful act.

§ Requires agencies to request a waiver or authorization from a federal agency if necessary for implementing these provisions, and authorizes a delay in implementing provisions if a federal waiver is required.
Top

DHS Fraud Prevention and Detection - H.B. 2123

by Representatives Maxey and Naishtat

Senate Sponsor: Senator Moncrief

§ Requires the Texas Department of Human Services (DHS) to develop and implement policies and procedures designed to improve DHS administered entitlement programs that use electronic benefits transfer (EBT) cards.

§ Requires DHS and the comptroller to coordinate their efforts to cross-train staff whose duties include fraud prevention and detection.

§ Requires local law enforcement agencies that seize an EBT card to immediately notify DHS, and return the card.

§ Requires the EBT system operator and installer to report to DHS and the United States Department of Agriculture suspicious activity relating to a retailer's participation in the food stamp program.

§ Requires DHS to compare a retailer's food stamp sales volume with the retailer's total food sales to determine whether the retailer is eligible to receive free point-of-sale terminals.

§ Requires DHS, through the use of a computerized matching system, to at least semiannually compare department information relating to food stamp transactions with comparable information from the comptroller and other appropriate state agencies. Requires all entities to take necessary measures to keep information confidential.

§ Requires DHS to close certain accounts which have not been used by the account holder during the preceding 12 months.

"Confession of error" by John Cornyn

2009-06-15T22:10:00.000-07:00

Dallas Criminal Defense Lawyer

Every attorney has an ethical obligation to protect the confidential information of a client. Confidential information includes both privileged and unprivileged client information. Privileged information means information that is protected by Rule 503 of the Texas Rules of Criminal Evidence, Rule 503 of the Texas Rules of Civil Evidence, or Rule 501 of the Federal Rules of Evidence. Unprivileged client information means all information relating to a client or furnished by the client, other than privileged information, which is acquired by the lawyer during the course of or by reason of the representation.

An attorney must not knowingly:

Reveal confidential information of a client or former client to a person that the client has instructed is not to receive the information or to anyone else, other than the client, the client's representatives, or the members, associates, or employees of the attorney's law firm;
Use a client's confidential information to the disadvantage of the client unless such use is with the client's consent;
Use confidential information of a former client to that client's disadvantage after the representation is concluded unless it is with the former client's consent or the information has become generally known; or
Use privileged information of a client for the advantage of a lawyer or of a third person unless it is with the client's consent.

There are certain exceptions to the general proscription against an attorney revealing confidential information of a client. A lawyer may reveal confidential information:

When the client expressly authorizes the disclosure for the purpose of carrying out representation.
When the client consents to the disclosure after consultation.
To the client, the client's representatives, or the members, associates, and employee's of the lawyer's firm, except when otherwise instructed by the client.
When the lawyer has reason to believe it is necessary to do so in order to comply with a court order, a Texas Disciplinary Rule of Professional Conduct, or other law.
To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the lawyer in a controversy between the lawyer and the client.
To establish a defense to a criminal charge, civil complaint, or disciplinary complaint against the lawyer or the lawyer's associates based on conduct involving the client or the representation of the client.
When the lawyer has reason to believe it is necessary to do so in order to prevent the client from committing a criminal or fraudulent act.
To the extent the revelation reasonably appears necessary to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services had been used.

A lawyer also may reveal unprivileged client information when the lawyer is impliedly authorized to do so in order to carry out the representation or when the lawyer has reason to believe it is necessary to do so in order to:

Carry out the representation effectively;
Defend the lawyer or the lawyer's employees or associates against a claim of wrongful conduct;
Respond to allegations in any proceeding concerning the lawyer's representation of the client; or
Prove the services rendered to a client, or the reasonable value of services, or both, in an action against another person or organization responsible for the payment of the fee for services rendered to the client.

There are certain circumstances under which an attorney must reveal confidential information. When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the lawyer must reveal the information to the extent the disclosure reasonably appears necessary to prevent the client from committing the criminal or fraudulent act. Additionally, a lawyer must reveal confidential information when required to do so by Disciplinary Rules 3.03(a)(2), 3.03(b), or 4.01(b).

Lawyer-Client Privilege

Privilege Defined

The lawyer-client privilege protects certain confidential communications made for the purpose of facilitating the rendition of professional legal services to a client. The rules of criminal evidence recognize a client's right to prevent the disclosure of such information. Since the point of the rule is to protect the client's right to prevent disclosure, a violation of the privilege may not lead to any relief from pending prosecution if no disclosure results from the violation. A client may also prevent the disclosure of any other fact that came to the knowledge of the lawyer or the lawyer's representative by reason of the lawyer-client relationship.

There is also a criminal work product doctrine that may serve to shelter materials prepared during a criminal case from discovery in a civil proceeding. This form of the lawyer-client privilege protects materials such as memoranda, reports, interviews, mental impressions, conclusions, opinions, legal theories, and other materials prepared and assembled for litigation and in anticipation of litigation

Essential Elements

A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of facilitating the rendition of professional legal services to the client that are made in any of the following ways:

Between the client or the client's representative and the lawyer or the lawyer's representative;
Between the lawyer and the lawyer's representative;
By the client, the client's representative, the lawyer, or the lawyer's representative to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;
Between representatives of the client or between the client and a representative of the client; or
Among lawyers and their representatives representing the same client.

For purposes of this privilege, a client is a person, public officer, corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer. A client's representative is one who has authority to obtain professional legal services on behalf of the client, or to act on the client's behalf as a result of advice rendered pursuant to such professional legal services. The term lawyer refers to a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation. A lawyer's representative is one employed by the lawyer to assist him or her in the rendition of professional legal services. This includes an accountant who is reasonably necessary for the lawyer's rendition of professional legal services.

A communication is confidential if it is not intended to be disclosed to third persons other than those to whom the disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. Thus, the presence of a third person does not waive the privilege if the third person has a common legal interest with respect to the subject matter of the communication.

It is clear that there must be some form of professional relationship between the client and the lawyer for the lawyer-client privilege to apply. This does not mean that the attorney must actually have undertaken representation for the privilege to operate. The privilege arises when the client ``consults a lawyer with a view to obtaining professional legal services''. Thus, before logically reaching any question concerning the application of the lawyer-client privilege, a determination must be made that the claim of privilege is being made by the lawyer on behalf of a client. Whether an attorney-client relationship exists is a question for the trial court to decide, and the court's ruling will ordinarily not be disturbed on appeal.

As mentioned above, the privilege applies not only to confidential communications with the lawyer, but also to such communications with the lawyer's representatives. However, the nonattorney to whom the disclosure is made must have been employed by the lawyer to assist the lawyer in the rendition of legal services. For example, the lawyer-client privilege does not apply to a communication with a nonattorney such as a psychiatrist who has been appointed by the court to conduct an independent examination. However, a psychiatrist employed by a lawyer falls under lawyer-client privilege.

Assuming the lawyer-client relationship is established, the privilege applies only to protect communications that are deemed to be confidential. The circumstances surrounding the communication are considered in determining if it was intended to be confidential. If the desire for confidentiality is absent, the reason for the privilege is also absent. The communication need not be oral to be protected. Written communications or preexisting documents that would be privileged from production in the hands of the client will be privileged from production in the hands of the attorney if they were transferred for the purpose of obtaining legal advice.

In order for the lawyer-client privilege to apply, the prosecution must be seeking the disclosure of the substance of a confidential communication. Therefore, the protection of the lawyer-client privilege is not invaded if no communication is involved. For example, the privilege does not apply if testimony is sought merely regarding the presence of the attorney at a particular stage of the prosecution, if the attorney is asked about matters of public record, or if testimony is sought from the attorney regarding his or her relationship with the client outside the attorney-client relationship, such as when the attorney acted as the client's bondsman. Similarly, there is no violation when a defendant's former attorney is called to testify at a retrospective competency hearing, as long as no confidential communications are revealed. A defendant's physical actions toward an attorney may also fall outside the purview of the privilege.

However, under some circumstances, information that would not normally be privileged may be protected. For example, although the identity of a client or information involving the receipt of a fee from a client is not usually protected by the privilege, if the release of such information would automatically lead to a conviction or indictment of the client, the information may be privileged. This principle comes into play only if the third party who has paid the defendant's fee is also a client of the defendant's attorney. The lawyer-client privilege shields the identity of a client or fee information only when the revelation of such information would disclose other privileged communications, such as the confidential motive for retention of the attorney.

The information contained in this web site is intended to convey general information about David Finn, PC. It should not be construed as legal advice or opinion. It is not an offer to represent you, nor is it intended to create an attorney-client relationship. Any email sent via the Internet to David Finn, PC using email addresses listed in this web site would not be confidential and would not create an attorney-client relationship.

2009-01-14T00:14:00.000-08:00

08-0239 MONTOYA, BELINDA 04/30/08

STATE’S NUECES POSSESSION OF CONTROLLED

SUBSTANCE

1. WHAT QUANTUM OF EVIDENCE IS NECESSARY FOR A TRIAL COURT TO BE REQUIRED TO CONDUCT AN INFORMAL INQUIRY ON COMPETENCE UNDER CODE OF CRIMINAL PROCEDURE 46B.004(C)?

2. DID THE THIRTEENTH COURT OF APPEALS IMPROPERLY CONFUSE EVIDENCE OF IMPAIRMENT WITH EVIDENCE OF INCOMPETENCY, AND FAIL TO GIVE PROPER DEFERENCE TO THE TRIAL COURT'S ROLE IN DISTINGUISHING BETWEEN THE TWO, WHEN IT HELD THAT:

• TESTIMONY THAT A DEFENDANT EXPERIENCED INSTANCES OF IMPAIRMENT ON UNSPECIFIED DATES IN THE PAST AND

• ISOLATED INSTANCES OF MOMENTARY HESITATION OR CONFUSION DURING A PROCEEDING DEMONSTRATED THAT A DEFENDANT LACKED A FACTUAL AND RATIONAL UNDERSTANDING OF THE PROCEEDINGS, AND REQUIREDTHE TRIAL COURT TO SUA SPONTE HOLD A COMPETENCY HEARING, EVEN WHERE:

• THERE WAS NO EVIDENCE THAT SUCH IMPAIRMENT WAS ACTUALLY IMPACTING THE DEFENDANT ON THE DATE OF THE PROCEEDING,

• THE DEFENDANT AND HER ATTORNEY BOTH CERTIFIED THAT SHE WAS COMPETENT, AND

• THE DEFENDANT'S CONDUCT DEMONSTRATED THAT SHE HAD A FACTUAL AND RATIONAL UNDERSTANDING OF THE PROCEEDINGS?

3. DID THE RULING OF THE THIRTEENTH COURT OF APPEALS, WHICH ABATED THE TRIAL COURT'S JUDGMENT AND REMANDED, PROVIDE PROPER GUIDANCE TO THE TRIAL COURT AND THE PARTIES AS TO THE LEGAL STATUS OF THE TRIAL COURT'S JUDGMENT AFTER ANY COMPETENCY INQUIRY?

Is the defendant legally trained?
What on Earth quantifies your waste let her go to law school and level the playing field.

Quantum Meruit, unless your chicken.

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NUMBER 13-06-462-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

BELINDA MONTOYA, Appellant,

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas

MEMORANDUM OPINION ON REHEARING

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Justice Vela

The State has filed a motion for rehearing in which it requests that we affirm the judgment of the trial court or, alternatively, reform our previous opinion in this cause. We grant, in part, the State's motion for rehearing. We withdraw our opinion and judgment of June 7, 2007 and substitute this opinion and judgment in their place. In all other respects, the State's motion for rehearing is denied, as is the State's motion for rehearing en banc.

Appellant, Belinda Montoya, pleaded guilty, without a plea bargain agreement,⁽¹⁾ to the offense of cocaine possession. The trial court sentenced her to fourteen months in state jail. By one issue, appellant asserts the court failed to inquire into her mental competency after the issue was sufficiently raised.⁽²⁾ We abate and remand.

Background

The question before us is whether evidence came to the trial court's attention suggesting that appellant may have been incompetent to stand trial. If this occurred, then the trial court was required, sua sponte, to determine by informal inquiry whether there was some evidence from any source that would support a finding that appellant may have been incompetent to stand trial. The record suggests that appellant may not have had the ability to fully understand the proceedings against her. During the plea hearing, the trial court questioned appellant about whether she understood the consequences of pleading guilty without the benefit of a plea bargain agreement. As shown by the following exchange, appellant's answers to the judge's questions were not always responsive and coherent:

Court: Ma'am, I'm told there is no plea bargain agreement in your case. Do you fully understand and are you aware of the consequences of entering a plea of guilty without the benefit and protection of a plea bargain agreement?

Defense Counsel: Do you understand the full range of punishment is up to two years or six months in the State Jail?

Appellant: Oh, I understand that, yes.

Court: All right. I'm glad you understand the range of punishment, but what I'm asking you is do you understand the consequences, what it means and what can happen to you in entering a plea of guilty without the benefit and the protection of a plea bargain agreement?

Appellant: Do I understand?

Court: Yes.

Appellant: Is that what we talked about?

Defense Counsel: Yes, that the Judge has--can sentence you anywhere from probation up to two years in the State Jail facility.

Appellant answered affirmatively. After the court explained to her the consequences of pleading guilty without the benefit of a plea bargain agreement, the following exchange occurred:

Court: Okay. So do you understand the consequences of entering a plea of guilty without the benefit and protection of a plea bargain agreement?

Appellant: Yes.

Court: Okay. Do you want to proceed?

Defense Counsel: Continue?

Appellant: Continue?

Court: Yes, you want to continue?

Appellant: Yes.

After accepting her guilty plea, the court heard punishment evidence. Defense counsel offered the testimony of appellant and her sister, Michelle Montoya. Appellant testified that she had cirrhosis and Hepatitis C. She said her life expectancy was "[s]ix months to a year . . . ." She took four medications: lactose; Hypertone; Nexium; and Lasix. She also received a monthly infusion of white blood cells. Defense counsel asked her about the effects of her illnesses and the side effects of her medications as follows:

Counsel: Now some of the side effects you suffer from your medication and from your illness, is depression one of them?

Appellant: I guess you could say that and I get delusional. I don't know where I'm at. I go into a sleeping coma. I just don't know where I'm at, don't--I fall asleep anywhere. I don't know. Just different things.

Counsel: Forgetfulness?

Appellant: That, too.

Counsel: Do you have any regression?

Appellant: What do you mean?

Counsel: Do you regress back to your childhood?

Appellant: Yes, I act like a little kid.

Counsel: Drowsiness?

Appellant: Yes, I sleep a lot.

Counsel: Weakness?

Appellant: Yes.

Counsel: And is it during this period that-

Appellant: The only time I feel okay is when I have the white blood cells.

* * * * *

Counsel: And could this have been one of the reasons for doing cocaine is when you were depressed?

Appellant: Yes, . . . .

* * * * *

Counsel: And last night you tried to get yourself into the Emergency Room?

Appellant: Right. Well, they released me this morning about nine o'clock.

Counsel: And-

Appellant: No, not even nine o'clock. It was maybe, like, ten-something, eleven. . . .

* * * * *

Counsel: What was your medical complaint?

Appellant: My headaches and without--I had ran out of my medication, so I have to go redo that and when I don't take my medicine, I just get these real bad headaches and I go back into that stage again.

Appellant's sister testified that appellant

gets real sick. She's really sick. She's- There's times that she, you know, she doesn't know what she's doing, that she needs constant care, and they're trying to get that for her. They're trying to get a provider for her because she's not well and she looks well right now. The days that we see her, she's not. She's like a little kid. We have to get her dressed. We have to sit her down to try to take her medicine and then we have to constantly care, need constant care for her.

The court made no suggestion that appellant may be incompetent to stand trial. Further, the court made no determination by informal inquiry or otherwise whether there was some evidence from any source that would support a finding that appellant may be incompetent to stand trial.

Applicable Law and Analysis

The code of criminal procedure prohibits a trial court from accepting a guilty plea "unless it appears that the defendant is mentally competent. . . ." Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2006). A defendant must also be mentally competent to be sentenced. See Casey v. State, 924 S.W.2d 946, 949 (Tex. Crim. App. 1996) (stating that sentencing is part of trial and competency considerations apply); see also Tex. Code Crim. Proc. Ann. art. 42.07, § 2 (Vernon 2006). Article 46B.003 provides that a person is incompetent to stand trial if he or she does not have: "(1) sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or (2) a rational as well as factual understanding of the proceedings against the person." Tex. Code Crim. Proc. Ann. art. 46B.003(a)(1) & (2) (Vernon 2006). A person is presumed competent to stand trial and shall be found competent to stand trial unless proven incompetent by a preponderance of the evidence. Id. art. 46B.003(b). Article 46B.004 states how the competency issue can be raised. The statute provides, in relevant part: "If evidence suggesting the defendant may be incompetent to stand trial comes to the attention of the court, the court on its own motion shall suggest that the defendant may be incompetent to stand trial." Id. art. 46B.004(b). On suggestion that the defendant may be incompetent to stand trial, subsection (c) states that "the court shall determine by informal inquiry whether there is some evidence from any source that would support a finding that the defendant may be incompetent to stand trial." Id. art. 46B.004(c).⁽³⁾

In other words, if, under subsection (b), evidence comes to the trial court's attention suggesting that the defendant may be incompetent to stand trial, then, under subsection (c), the trial court is required to determine by informal inquiry whether there is some evidence that would support a finding that the defendant may be incompetent to stand trial. Id.; Lawrence v. State, 169 S.W.3d 319, 322 (Tex. App.–Fort Worth 2005, pet. ref'd); cf., Kuyava. State, 538 S.W.2d 627, 628 (Tex. Crim. App. 1976) (unless an issue is made of an accused's present insanity or mental competency at time of plea, the court need not make inquiry or hear evidence on such issue); Godoy v. State, 122 S.W.3d 315, 320 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd) (same).

A trial judge must conduct a competency inquiry (before the bench) only if sufficient evidence exists to create a bona fide doubt in the judge's mind whether the accused meets the test of legal competence. See Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001); Moore v. State, 999 S.W.2d 385, 393 (Tex. Crim. App. 1999). Recently, in Salahud-Din v. State, 206 S.W.3d 203 (Tex. App.–Corpus Christi 2006, pet. ref'd), we stated:

Evidence sufficient to prompt a competency hearing or inquiry must raise a "bona fide doubt" in the mind of the trial judge as to the defendant's competency to stand trial; a bona fide doubt exists if the evidence indicates recent severe mental illness, or at least moderate mental retardation, or truly bizarre acts by the defendant.

Id. at 208 (citing Collier v. State, 959 S.W.2d 621, 625 (Tex. Crim. App. 1997)); See Moore, 999 S.W.2d at 395 (to raise competency issue by means of accused's past mental health history, there generally must be evidence of recent, severe mental illness or bizarre acts by the defendant or moderate retardation).

We review a trial court's failure to conduct a competency inquiry under an abuse of discretion standard. Moore, 999 S.W.2d at 393; LaHood v. State, 171 S.W.3d 613, 617-18 (Tex. App.–Houston [14th Dist.] 2005, no pet.). A trial court abuses its discretion if its decision is arbitrary or unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Lawrence, 169 S.W.3d at 322. Appellant's testimony showed that the side effects from her illnesses and medications caused her not to know where she was at, to act like a little kid, to be forgetful, weak, drowsy, delusional, depressed, and to go into a sleeping coma. The night before the plea hearing, she went to the emergency room because she ran out of medication. She had trouble remembering what time she left the emergency room. Her sister's testimony showed that appellant was "really sick" and that there were times when appellant did not know what she was doing. She also said, "The days that we see [appellant] . . . [s]he's like a little kid. We have to get her dressed. We have to sit her down to try to take her medicine and then we have to constantly care, need constant care for her."

Further evidence suggesting appellant may have been incompetent to stand trial appeared when the court was trying to determine if she understood the consequences of pleading guilty without the benefit of a plea bargain agreement. When the court asked her, "[D]o you understand the consequences, what it means and what can happen to you in entering a plea of guilty without the benefit and the protection of a plea bargain agreement?", she said, "Do I understand?" and "Is that what we talked about?" After she made these remarks, the trial court explained the consequences of pleading guilty without the benefit of a plea bargain agreement. When the court asked her, "So do you understand the consequences of entering a plea of guilty without the benefit and protection of a plea bargain agreement?", she answered affirmatively. However, when the court asked her if she wanted to proceed, she did not respond. Instead, defense counsel asked her, "Continue?", and she replied, "Continue?" When the court asked her, "Yes, you want to continue?", she finally answered in the affirmative.

We conclude the evidence demonstrated recent, severe mental illness, or at least moderate mental retardation, or truly bizarre acts by appellant. We find particularly troublesome the evidence showing that appellant had experienced instances when she was delusional, did not know where she was at or what she was doing, and acted like a "little kid". The evidence showed appellant did not have a rational as well as factual understanding of the proceedings against her. See Tex. Code Crim. Proc. Ann. art. 46B.003(a)(2) (Vernon 2006). Accordingly, the evidence was sufficient to prompt a competency inquiry because it met the threshold stated in Salahud-Din and should have raised a bone fide doubt in the judge's mind regarding appellant's competency to stand trial. See Salahud-Din, 206 S.W.3d at 208. We hold that because evidence came to the trial court's attention suggesting appellant may have been incompetent to stand trial, the court abused its discretion by failing, sua sponte, to determine by informal inquiry whether there was some evidence from any source that would support a finding that appellant was incompetent to stand trial. The issue is sustained.

We abate the trial court's judgment and remand the case for proceedings consistent with this opinion. See Casey, 924 S.W.2d at 949; Brown v. State, 871 S.W.2d 852, 860 (Tex. App.-Corpus Christi 1994, pet. ref'd).

ROSE VELA

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this 1st day of November, 2007.

1. In the "Amended Trial Court's Certification of Defendant's Right of Appeal" the trial court certified that "this criminal case: is not a plea bargain case, and the Defendant has the right of appeal."

We view appellant's complaint as challenging the trial court's failure to formally suggest she may be incompetent to stand trial, See Tex. Code Crim. Proc. Ann. art. 46B.004(b) (Vernon 2006).

3. If, after an informal inquiry, the court determines that evidence exists to support a finding of incompetency, the court shall order an examination to determine whether the defendant is incompetent to stand trial. Tex. Code Crim. Proc. Ann. art. 46B.005(a) (Vernon 2006). Furthermore, generally, if the court determines that evidence exists to support a finding of incompetency, the court shall hold a hearing before determining whether the defendant is incompetent to stand trial, and, on the request of either party or on the court's motion, a jury shall make the determination as to whether the defendant is incompetent. Id. arts. 46B.005(b), 46B.051.

He is a great kid with love and happiness in his heart till justice is used by liars and hubert frauds create JOBS by goodhair governors

2008-12-28T03:35:00.000-08:00

This is the html version of the file http://biblioteca.rrp.upr.edu/LatCritCD/Publications/PublishedSymposium/LCIIIUMiami(1999)/32LCIIIJOhnson&Martinez.pdf.
Google automatically generates html versions of documents as we crawl the web.
Page 1
53 U. Miami L. Rev. 1143
Copyright (c) 1999 University of Miami Law Review
University of Miami
July, 1999
53 U. Miami L. Rev. 1143
LENGTH: 14751 words
MAPPING INTELLECTUAL/POLITICAL FOUNDATIONS AND FUTURE SELF CRITICAL
DIRECTIONS: Crossover Dreams: The Roots of LatCrit Theory in Chicana/o Studies Activism and
Scholarship
Kevin R. Johnson *, George A. Martinez **
BIO:
* Associate Dean for Academic Affairs and Professor of Law, University of California at
Davis; A.B., University of California at Berkeley; J.D., Harvard University. Section II of this
paper was presented in draft form on the plenary panel on Scholarship at the 1998 Sixth Annual
Western Law Teachers of Color Conference sponsored by the University of Oregon.
** Associate Professor of Law, Southern Methodist University; B.A. 1976, Arizona State
University; M.A. (Philosophy) 1979, University of Michigan; J.D. 1985, Harvard University.
Section I of this paper was presented on the plenary panel on Activism at the 1998 Sixth
Annual Western Law Teachers of Color Conference sponsored by the University of Oregon.
Thanks to Keith Aoki, Steve Bender, and Ibrahim Gassama for graciously inviting us to
participate in the Western Teachers of Color conference. Thanks also to Frank Valdes and
Sumi Cho for their encouragement. We are thankful to Professor Dennis Valdes for allowing us
to include his bibliography of Chicana/o history as an Appendix and offering comments on the
article. Muchisimas gracias to Mary Romero and Guadalupe Luna, both who went above and
beyond the call of duty to carefully read and review a rough draft of this article and offer many
helpful comments and correct many errors.
SUMMARY: ... As a scholar-activist, Samora helped found the Southwest Council of La Raza, an
advocacy group supporting full civil rights for Mexican-Americans. ... D. The Latina/o As Scholar Activist
Continues with LatCritTheory. ...
[*1143]
Introduction
As the century comes to a close, critical Latina/o theory has branched off from Critical Race Theory. n1
This article considers how this burgeoning body of scholarship finds its roots in a long tradition of Chi
cana/o activism and scholarship, particularly the work of Chicana/o Studies professors. In the critical study
of issues of particular signifi cance to the greater Latina/o community, we owe an intellectual debt to the
generations of scholarship focusing on Chicana/os in the United States.
This praise might strike some knowledgeable observers as odd. Chicana/o Studies developed with an
exclusive focus on the subordina tion of persons of Mexican ancestry in the United States and still adheres
to the view that investigation of the histories of other Latin American [*1144] national origin groups is
beyond its scope. In contrast, LatCrit theory from its inception has attempted to focus on the commonalities
Page 2
53 U. Miami L. Rev. 1143
of per sons tracing their ancestry to Latin America. Despite Chicana/o Studies offers important lessons for
LatCrit theorists scrutinizing the legal treat ment of all Latina/os.
Part I of this article considers the link between Chicana/o Studies activism and Latina/o legal scholarship.
Part II analyzes how LatCrit theory finds its intellectual roots in Chicana/o Studies scholarship. In this
analysis, we hope to establish the relationship between Chicana/o Studies activism and scholarship, which
blossomed as a result of the 1960s Chicano ovement, and LatCrit theory. We also show how the Chicana/o
Studies model helps us think about some vexing challenges posed to LatCrit theorists. Finally, we highlight
a rich body of Chicana/o Studies scholarship on which future critical Latina/o scholarship may build in
critically analyzing how law affects the Latina/o community.
I. Generations: Latina/o Scholars, Scholarship andActivism
This section considers the generations of activism by Chicana/o scholars. In so doing, we go beyond law
teachers because of the need to view Chicana/o scholar activists as part of long tradition not limited to legal
academics.
A. World War II and Beyond
World War II remains widely recognized as a watershed moment in the history of Mexican-Americans.
n2 With changes - good and bad - wrought by war, Mexican-Americans came of age and achieved a new
political understanding. n3
After the war, a group of Mexican-Americans, some of whom had taken advantage of the G.I. Bill, formed
a small cadre of scholar/activ ists. George Sanchez n4 (University of Texas), Ernesto Galarza, n5 Julian
[*1145] Samora (University of Notre Dame), n6 and Quino Martinez (Arizona State University).
In 1951, George Sanchez founded the American Council of Span ish-Speaking People, which filed civil
rights lawsuits designed to halt discrimination against Mexican-Americans. n7 Sanchez served as of
arguably, the most prominent self-help group of his generation, the League of United Latin American
Citizens (LULAC). n8 LULAC was "middle class, accepted only U.S. citizens for membership, and
tended towards assimilation." n9 Through a variety of means, Sanchez sought to induce the U.S.
government to ensure the full civil rights of Mexican- Americans. n10 For example, he took the position
that discrimination against Mexican-Americans would hurt U.S. foreign relations with Latin America. n11
On the controversial topic of immigration, he argued that Mexican immigrants hurt Mexican-Americans by
taking away their jobs and undermining their prospects for assimilating into mainstream soci ety. n12
Today, many would criticize his positions, but at the time, these views reflected conventional Mexican-
American attitudes about assimi lation and immigration.
Like George Sanchez, Ernesto Galarza also dealt with the issue of immigration, but in the specific context
of its impact on farmworkers. n13 He argued that dominant society created negative stereotypes about
undocumented workers that reinforced racism against Mexican-Ameri cans. n14 As part of his activism,
Galarza established the National Farm Workers Union in the mid-1940s, which served as a precursor to the
[*1146] United Farm Workers Union of Cesar Chavez, and which opposed the immigration of Mexican
workers that undercut the wage scale. n15 In addi tion, Galarza helped establish the Mexican-American
Legal Defense and Education Fund (MALDEF), which ultimately became perhaps the most potent weapon
for protecting the legal rights of Mexican-Americans (and, ironically enough, in light of Galarza's views on
Mexican immi grants, for Mexican immigrants). n16
Julian Samora pioneered the field of Mexican-American studies by constructing a sociological perspective
on Mexican-Americans. n17 Through his scholarship, he sought to influence policy toward Mexican-
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Americans and improve their condition. As a scholar-activist, Samora helped found the Southwest Council
of La Raza, an advocacy group supporting full civil rights for Mexican-Americans. n18
A specialist in historical linguistics, Quino Martinez actively sup ported a number of major Mexican-
American community projects in Arizona. For example, he supported the Guadalupe Organization, an
important activist group that advanced the interests of the Mexican- American community of Guadalupe,
Arizona. n19 In addition, Martinez served as a mentor to the Chicana/o student activists at Arizona State
University in the 1960s and 1970s.
Scholars of this generation generally believed that Mexican-Ameri cans should assimilate into the
mainstream. Viewing undocumented labor as thwarting full integration of Mexican-Americans, they advo
cated restrictive immigration laws. n20 Though these views are antitheti cal to today's Chicana/o Studies
and LatCrit scholar activists, these pioneers understood that dominant society demanded assimilation as a
prerequisite to Mexican-American membership. They also saw, more generally, the relationship between
Mexican immigration and the domestic civil rights of the Mexican-American community.
This generation of scholar activists eventually learned that restric [*1147] tive immigration laws and
policies failed to help, and indeed adversely affected, the Mexican-American community. n21 For
example, the U.S. government in 1954 embarked on "Operation Wetback" and deported many long-time
U.S. residents, breaking up Mexican-American families, and resulting in U.S. citizens of Mexican ancestry
leaving the country. n22 "The Mexican American community was affected because the campaign was
aimed at only one racial group, which meant that the burden of proving one's citizenship fell totally upon
people of Mexican descent. Those unable to present such proof were arrested and returned to Mex ico."
n23 This experience caused Mexican-American scholar activists to reconsider their positions on
immigration and assimilation. n24
B. The Chicano Movement of the1960s
Providing powerful leadership, the post-World War II generation of scholar activists made important
contributions to the advancement of Mexican-American civil rights. They set the stage for Chicano activists
of the 1960s and 1970s. Building on previous generations of Mexican- American activism and inspired by
the civil rights and anti-war move ments, the farm worker movement in the west, and the efforts by Mexi
can-Americans to recover land in New Mexico, activism grew in the 1960s among politicized Mexican-
American communities throughout the United States. n25 Chicana/o youths voiced concerns with racial
dis crimination, poor education, and the lack of equal opportunity. The Chi cana/o student movement saw
Mexican-Americans dramatically walk out of schools throughout the southwest. Activists constructed a
new "Chicano" self-identity, which represented an effort to redefine them selves by their own standards. As
LatCrit theorists would later put it, they sought to "name [their] own reality." n26 Political leader Corky
Gon zales's epic poem "I Am Joaquin" became the anthem for the Chicana/o [*1148] movement and the
effort to create a new identity.
n27 The expression "Chicano," the core to the new self-identity,
symbolized pride in Mexi can ancestry and traditions. "Long used as a slang or pejorative in- group
reference to lower-class persons of Mexican descent, in the 1960s the term Chicano was adopted by young
Mexican-Americans as an act of defiance and self-assertion and as an attempt to redefine themselves by
criteria of their own choosing." n28
Chicana/o Studies also promoted the idea of "Chicanismo," which was then used by activists in establishing
Mexican-American solidar ity. n29 The Chicano movement gave dignity to a positive self-identity, and
helped redefine Mexican-American heritage as something to be proud, not ashamed of, as past generations
had been. n30
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With the goal of Chicana/o pride, activists drew up a "Spiritual Plan of Aztlan": a separatist vision of a
Chicana/o homeland. n31 In set ting out this plan, they rejected assimilation into the mainstream on the
ground that it reinforced subordination. n32
Activism was closely linked to Chicana/o Studies scholarship. Indeed, "the most visible vestige of the
[Chicano movement] is to be found in academia in the many university Chicano studies programs and
departments that exist throughout the Southwest."
n33 Through Chicana/o Studies courses, many
Mexican-Americans became aware of the signifi cance of the Treaty of Guadalupe Hidalgo to the
subordinate status of Mexican-Americans. n34 Fernando Gomez explored how the Treaty of Guadalupe
Hidalgo could be used to advance the civil rights of present- day Mexican-Americans. n35 Showing the
link between scholarship and [*1149] activism, Reies Lopez Tijerina relied heavily on the Treaty in his
fight to reclaim land for persons of Mexican ancestry in New Mexico. n36
The important work of other Chicana/o Studies scholars had activist ends. A renowned activist, Rodolfo
Acua developed new theo retical approaches for understanding the situation of Chicana/os and spe
cifically argued that Chicana/os had been colonized by the United States in a way that parallels the
colonization of third world countries. n37 In analyzing the intersection of race and class in Chicana/o
subordination in the Southwest, Mario Barrera allowed Chicana/os to better understand the complexity of
immigration law and the Mexican-American commu nity. n38 He also offered a new political theory of
Chicana/os in the United States. n39
Chicanas also have been instrumental in creating a body of Chicana Studies scholarship. For example,
Roxanne Dunbar Ortiz studied the history of Chicana/o resistance to loss of land in New Mexico. n40 In
revi siting Chicana/o history, Vicki Ruiz documented the important activist role that Chicanas played and
how they defied the stereotype that women of Mexican ancestry are passive. n41 Mary Romero studied
the lives of Mexican-American women in the domestic service industry in the Southwest. n42 Most
recently, Carla Trujillo has edited a book of scholarship on Chicana theory. n43
Besides political activism, the Chicana/o movement resulted in efforts to bring change through traditional
means. The creation of the Mexican-American Legal Defense and Educational Fund (MALDEF) and the
Southwest Voter Registration and Educational Project (SWVREP), are important examples.
n44
SWVREP helped register new Mexican-American voters and facilitate political action. MALDEF has
vindicated the rights of persons of Mexican ancestry in the legal process [*1150] in cases such as White v.
Regester, n45 a voting rights action, and Plyler v. Doe, n46 which protected the right of undocumented
Mexican children to a public education. MALDEF also helped strike down California's Propo sition 187,
which stripped public benefits from undocumented immigrants. n47
In sum, Chicano movement leaders combined activism with schol arship in fighting for land rights,
educational reform, language rights, and equality. As Chicana/o Studies began to define itself, it produced
new scholar activists. Chicana/o Studies began to serve as the place where people could learn their history
and become "active" within the community.
C. Latina/o Legal Scholars, Scholarship andActivism
Against this background of the Chicano movement, we encounter the Chicana/o law professors of the
1970s and early 1980s. As with the formation of Chicana/o Studies, student activists demanded for law
schools to hire Latina/o law professors. n48 Among these first Chicana/o law professors are scholar
activists, including but not limited to Leo Romero, n49 Cruz Reynoso, n50 and Richard Delgado. n51
For example, an early article by Delgado and Vicky Palacios argued that Mexican-Amer icans should be
recognized as a "class" for purposes of bringing civil rights actions. n52 (Such "class" actions are most
effective in bringing about structural reform.) An article by Romero, Delgado and Reynoso identified
problems that Chicana/o students face in studying law, espe cially the cultural conflict faced by them in law
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school. n53 As scholar activists, they made concrete suggestions to make legal education more [*1151]
hospitable for Chicana/s, including recommendations that law professors should analyze the racial interests
at stake in legal rules to make law relevant to Chicana/s.
Another person who fits within this long history of Mexican-Amer ican scholar activists is Michael Olivas
(roughly of this generation), con sidered to be the "Dean" of Latina/o law professors, who began teaching
law in 1982. He pushed law schools to hire Latina/s and helped them gain tenure and promotion. When
Olivas began teaching there were only 22 Latina/o law professors, n54 and, due in no small part to his
efforts, there were 125 in the spring of 1998. n55 The first Latinas, includ ing Rachel Moran and Berta
Hernandez, two prominent LatCrit scholars, joined the academy in the 1980s. To pressure law schools to
increase the number of Latina/o law professors, Olivas, with the backing of the Hispanic National Bar
Association, established the so-called "Dirty Dozen" list, i.e., a select list of law schools in areas with a
significant Latina/o population but with no Latina/o faculty. The well-publicized list placed pressure on law
faculties to hire Latinos/as; some schools did. n56 Olivas also conducted workshops for lawyers interested
in law teaching at the annual Hispanic National Bar Association convention. Besides his activism in
academia, Olivas helped establish a law student clinic to help Central American immigrant children
detained by the Immigration and Naturalization Service in South Texas. n57
[*1152]
D. The Latina/o As Scholar Activist Continues with LatCritTheory.
Activism generated Chicana/o studies. Activism created LatCrit Theory. Due to the hard work of activists,
a critical mass of Latina/o legal scholars has been established. Critical Latina/o theory is the result. LatCrit
has emphasized the need for connection between theory and practice. n58 This focus fits comfortably
within a well-established tradi tion of Chicana/o scholar activists. For example, contending that "all legal
scholarship is necessarily and fundamentally political," Frank Valdes has argued that LatCrit theorists must
view themselves as activists. n59
More importantly, LatCrit theory has generated powerful perspec tives and analysis important for activists.
For example, LatCrit theorists recognize that perhaps the key area for activists to focus on is cultural
preservation and retention of language rights. n60 There is a long history in this country of attempted
forced assimilation, such as the infamous "Americanization" programs in the 1920s designed to teach
Mexican- Americans the values of Anglo Saxon society. n61 Interestingly, these efforts do not stop at our
border. Thus, the North American Free Trade Agreement ("NAFTA") may be viewed as a way to
"Americanize Mex ico." n62 The philosophical ideal of authenticity requires Latina/os to be true to that
history. n63 For this reason, Chicanas/os suffer severely in attempting to assimilate. n64 Traumatic
attempts to lose Spanish language skills and accents, for example, have injured Mexican-Americans. n65
[*1153] Activists must resist the English-only movement that represents an effort to use the law to force
abandonment of the Spanish language. Similarly, activists must resist those who contend that the
immigration should be restricted because Latina/os fail to assimilate. n66
Similarly, society often treats Latina/os as foreigners, n67 which con tributes to the perception that they
are racially and culturally different. Activists must combat this perception. Beyond this, LatCrit theorists
have called us to recognize the importance of coalitions with other subordinated groups. n68 For example,
Rachel Moran and Bill Piatt have urged African Americans and Latina/os to work together in order to pre
serve remedial programs like affirmative action. n69
Careful study of school desegregation efforts by LatCrit scholars also have benefited activists. n70
Activists should promote a multicultural approach in areas like education and immigration. If, as Nathan
Glazer has proclaimed, "we are all multiculturalists now," n71 it is time to work to realize that ideal.
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LatCrit theorists also have noted that legal self-definition is impor tant. For example, the Mexican-
American's legal definition as "white," while superficially appealing, may actually serve to allow for
continued oppression of Mexican-Americans and create barriers to coalitions with other non-Whites. n72
As Chicanismo recognized, activists understand the importance of group self-definition and challenge how
white definitions of Chicanismo may reinforce subordination.
In pursuing social change, we must not forget that, as LatCrit theo rists have emphasized, there are limits to
the utility of litigation. Courts often exercise their discretion against Mexican-Americans. n73 Legal suc
cess often does not translate into meaningful change. This suggests that [*1154] activists need to
supplement litigation efforts with political move ments. n74 A well-known success story in Chicana/o
Studies circles illus trates this point. In successfully resisting an effort to segregate the public schools in
Lemon Grove, California in the 1930s, Mexican- Americans combined political action with litigation. n75
More recently, the "Mothers of East Los Angeles," a group composed of Mexican American women,
successfully organized to fight the placement of toxic waste sites through grassroots activism combined
with litigation. n76 Chi cana/o Studies and LatCrit activism is inextricably linked to scholarship. The next
section analyzes this relationship.
II. Chicana/o Studies and the Emergence of Critical Latina/o LegalScholarship
Critical Latina/o theory, the subject of five symposia in the last couple of years, n77 represents the first
sustained critical consideration of legal issues of particular significance to the Latina/o community. The
development of LatCrit scholarship is attributable in no small part to the new generation of Latina/o legal
scholars. This new generation has focused on issues of particular concern to the Latina/o community, and
has contributed a growing body of scholarship on Latina/o legal issues. The group added to the relatively
small body of scholarship that previ ously existed on issues such as the impact of the immigration laws on
the Latina/o community, national origin discrimination against persons of Latin American ancestry, and
language discrimination. This new scholarship has been long in coming. For example, not until the 1970s
did Latina/o scholars analyze the fundamental question whether Mexi can-Americans might be able to
bring class action, an important tool in civil rights litigation. n78
Much of this new Latina/o scholarship is "critical." How could you be Latina/o in the United States and
look at the status quo on certain legal issues important to the Latina/o community and not be critical?
[*1155] Even some deeply conservative Mexican-Americans, for the most part disowned by Chicana/o
activists, are critical of how this society treats Mexican-Americans. Linda Chavez has expressed concern
with the anti- Mexican undercurrent to the immigration debate in the 1990s. n79 Richard Rodriguez and
Ruben Navarette are critical of how Mexican-Americans have been treated in the United States. n80
Latina/o legal scholarship has responded to the perceived need to study specific issues of particular
relevance to Latina/os that have not been squarely addressed in the civil rights scholarship, including
Critical Race Theory. To address these issues, LatCrit theorists must grapple with some difficult questions.
In doing so, we should look to the teach ings of our Chicana/o Studies predecessors.
A. The Need for a Distinctive Chicana/o LegalScholarship
LatCrit scholars have begun to address internal issues, namely the deep diversity within the pan-Latino
community. n81 Far from homogene ous, Latina/os are a "community of different communities." n82
There are differences among many Latina/os in terms of national origin, ancestry, language, skills,
immigration status, class, skin color and physical appearance, "race" (as that term is traditionally used), and
other charac teristics. At the same time, there are many commonalities to the Latina/o experience in this
country, including discrimination, perpetual treat ment as foreigners, and devaluation of culture and
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language. Latina/os thus face the difficult task of focusing on commonality while recogniz ing difference.
n83
Though important to emphasize commonality to build community, each national origin sub-group of the
Latina/o community must be afforded the space to critically study its specific history in the United States.
For example, Mexican-Americans in the Southwest have a dis tinctly different experience in this country
than other Latina/o groups, such as Cubans and Puerto Ricans. n84 This history has been explored in
[*1156] the Chicana/o Studies scholarship, which has focused on the Chicana/o experience in the United
States as opposed to the experiences of other sub-groups of the greater Latina/o community. Nor are the
experiences of all persons of Mexican ancestry in the United States identical. Mexi can-Americans and
Mexican immigrants live different lives. Tension, as suggested by some early Chicana/o scholars' views on
immigration, n85 exists between these groups. n86
The different experiences necessarily affect scholarly inquiry. Mexican-Americans must be permitted to
explore their own histories and analyze how the law has operated to reinforce their subordination. Some
LatCrit theorists have embarked on the study of the Mexican- American experience. n87 Mexican-
Americans indeed may have a distinc tive "voice" in analyzing issues concerning the Mexican-American
experience in the United States. n88
Some of the differences of perspective were brought out at a con ference in 1998 marking the 150th
anniversary of the Treaty of Guadalupe Hidalgo, which ended the United States-Mexican War in 1848.
n89 Divisions of opinion between leading Chicana/o Scholars in the United States and scholars from
Mexico, including the prominent Mexi can intellectual Jorge Castaeda, became evident. Chicana/o
scholars, including Rudy Acua, pointedly accused the Mexican intellectuals of not being even
remotely concerned with the status of Chicano/os in the United States. The Chicana/o Studies experience
suggests that LatCrit Theory should encourage - or, at a minimum, should not discourage - distinctive
scholarly inquiry into the histories and realities of subordina tion of Chicana/os. This study should not be
considered as a threat to Latina/o unity but should be viewed as essential to a full understanding of racial
subordination in the United States. One interesting aspect of [*1157] this development is that Chicana/o
Studies has been consciously nation alistic in outlook. It has focused exclusively on the Chicana/o experi
ence, not that of other Latina/o groups. Premised on inclusiveness, LatCrit theory, however, generally has
considered issues common to the greater Latina/o community. The focus of Chicana/o Studies has pro
duced fruitful scholarship, but may be limited in its ability to assist in the building of political coalitions
among all Latina/os. LatCrit theory strives to build pan-Latina/o community. Ultimately, Chicana/o Studies
and LatCrit theory may move in opposite directions - with Chicana/o Studies becoming more inclusive
n90 and LatCrit theory allowing for focused inquiry when appropriate.
B. LatCrit Theory and Other Civil RightsScholarship
One controversial question is how does Latina/o legal scholarship fit into other civil rights scholarship.
Some have viewed LatCrit theory as a challenge to the traditional black-white binary view of civil rights in
the United States. n91 This does not mean that various minority groups must engage in a race for the
bottom to show that they suffered the most discrimination or that coalition-building is not possible. As
Professor Angela Harris has outlined the argument, the African American experi ence in the United States,
marked by the brutality of forced migration and chattel slavery, may well be exceptional to that of other
groups. n92 Assuming this to be true, there remains room to analyze the Latina/o experience with
discrimination in the United States. Indeed, the oppres sion of all racial groups - - Asian Americans, Native
Americans, and Latina/os, as well as African Americans - - deserve study. The various groups have been
oppressed in different, though often similar ways. These historical experiences all deserve serious scholarly
attention. n93
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[*1158] This approach to the study of racial subordination is not a novel idea on university campuses
(though they have been subject to attack at various times). n94 It was an implicit if not explicit
understanding in the 1960s and 1970s as African American Studies, Asian American Studies, Chicana/o
Studies, Native American Studies, and Ethnic Studies schol arship blossomed and flourished. Each of these
fields studied issues of special concern to particular minority communities. Each has made, and continues
to make, valuable contributions to the understanding of racial subordination in the United States. We have
outlined some of the important contributions of Chicana/o Studies scholars. Scholars like Michael Omi and
Ron Takaki have offered important insights from an Asian American perspective. n95 Kwami Anthony
Appiah, Henry Louis Gates, and Cornel West have explored the place of African Americans in the modern
United States.
n96 Native American Studies scholars also have added to the race discourse. n97
Moreover, scholars in these disciplines generally have engaged in respectful dialogue about the intricacies
of racial subordination. Realizing the need for separate investigation of the experiences of different racial
groups, these scholars recognized com monality while respecting difference.
A multifaceted approach is warranted by the need to look at the whole of racial discrimination and
subordination. n98 The various forms of racial subordination in the United States are related. As
philosophers put it, the "web of belief" requires a study of all these groups. n99 Conse quently, LatCrit
theory should not be seen as a challenge to Critical Race Theory ("CRT") but viewed as building on its
achievements while [*1159] moving in an independent direction to shed additional light on the racial
subordination of Latina/os.
The study of language rights, immigration, and citizenship issues - all central to the Latina/o experience in
the United States - had not been focused upon by CRT. Consequently, the unexplored questions deserved
the scrutiny offered by LatCrit theorists. Indeed, Latina/o sub ordination, and racial oppression generally,
cannot be fully understood without consideration of these important issues.
Such an analysis becomes apparent when one considers how inter ethnic conflict allows for minority
groups to be pitted against one another, which can be seen in the African American, Korean American, and
Latina/o conflict in South Central Los Angeles. n100 Similar episodes occurred last century when African
Americans interests were pitted against those of Chinese immigrants. n101 Similarly, race relations in
Texas cannot be fully understood unless we consider the history of sub ordination of African Americans,
Mexican-Americans, and poor whites in the state. n102 Today, we see various minority groups at odds on
the issue of affirmative action. n103 Only through analyzing the historical experiences of each minority
can we fully understand the whole of racial subordination.
C. The Need to Look to Chicana/o StudiesScholarship
In analyzing issues of particular importance to the Latina/o commu nity, we should learn from the rich
body of Chicana/o Studies scholar ship. It is presumptuous of legal scholars to believe that we are the first
to consider the issues of particular importance to Latina/os. The well- developed body of Chicana/o
scholarship is the first generation of schol arship in the area. Critical Race Theorists emphasize the need for
inter [*1160] disciplinary discourse. n104 Accordingly, it behooves us to consider the foundational
scholarship analyzing issues of importance to the Chicana/o community. While the first generation of
scholars included people like Julian Samora, Ernesto Galarza, and George Sanchez, n105 the next
generation included scholar activists like Rodolfo Acua, n106 author of the classic Occupied
America, and Mario Barrera. n107 The latest genera tion includes too many prominent Chicana/o scholars
to name. None of this is meant to suggest that we should limit our scrutiny to Chicana/o studies
scholarship. A body of Chicana/o history, sociology, and other social science warrants our consideration.
To offer a concrete example of the wealth of literature for explora tion by Chicana/o legal scholars, we
include as an appendix to this arti cle a bibliography of Chicana/o history compiled by Dennis Valdez, a
Chicano Studies Professor at the University of Minnesota. n108 This bibli ography offers a sample of the
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rich body of literature available to those interested in serious study of Chicana/os in the United States. Put
sim ply, Latina/o legal scholars should learn from and build upon this rich body of scholarship. In
analyzing these difficult issues of race and class in the United States, we should build on the generations of
thought, rather than ignore them. Moreover, with legal training, law professors have what economists might
call a "comparative advantage" in analyz ing legal history. Legal skills prove invaluable in analyzing the
history and development of law and how it has been used to subordinate Latina/os. Historian Richard
Griswold Del Castillo wrote a fine book analyzing the court decisions dealing with the enforcement (or
lack thereof) of the Treaty of Guadalupe Hidalgo. n109 Law professors have much to add to his study.
The dispossession of Chicanos from the land was done through a variety of legal (and illegal) mechanisms.
Though some of this work has been done, n110 much remains. Similarly, important work has been done
in recent years analyzing desegregation efforts in the pub lic schools involving Mexican-Americans. n111
The intricacies of school [*1161] desegregation litigation gain much from a lawyer's eye.
Immigration is another area in which legal skills allow for critical analysis. The U.S. immigration laws are
incredibly complex, with many discriminatory impacts obscured by technical detail. In addition,
enforcement of the laws often is discriminatory, even if the letter of the law is not. This suggests that work
with others trained in other academic fields might help, as they have, in analyzing how the law on the
books differs from the law in practice. n112
While Latina/o law professors may apply legal training to the anal ysis of Chicana/o history, we must take
care not to overlook broader political and social meanings of the events that Chicana/o Studies activ ists
have identified. For example, while adding to the insights of Chi cana/o historians about the Treaty of
Guadalupe Hidalgo ("the Treaty"), n113 law professors should not be oblivious to the larger politi cally
important aspects of the Treaty. n114 The hope symbolized by the Treaty mobilized a generation of
Chicana/os to move for social change. It allowed activists like Reies Lopez Tijerina to rally New Mexicans
to organize a potent political force. The Treaty has been a centerpiece of Chicana/o Studies on university
campuses across the nation, one of the semi-permanent sites of focus on issues of importance to
Chicana/os. It would be short-sighted for formalistic lawyers to focus on technicalities of the law and miss
the broader political-social impacts of the Treaty of Guadalupe Hidalgo. n115
Conclusion
This article has outlined the relationship between the tradition of Chicana/o Studies activism and
scholarship and the LatCrit movement. The roots of LatCrit theory can be found in Chicana/o Studies
activism and scholarship. This article hopefully will encourage Latina/o legal scholars to consider this rich
body of literature. The existence of Chi cana/o scholarship provides valuable lessons for LatCrit theorists.
Space exists for analysis of the experiences of various national origin groups [*1162] that comprise the
umbrella Latina/o community. In addition, the ability of Chicana/o Studies to co-exist with other allied
disciplines analyzing issues of race, including African American Studies, Asian American Studies, Ethnic
Studies and Native American Studies, suggests that it is not inconsistent for different groups with similar
goals to explore the specific intricacies of their histories. Only through the study of the his tory of each
minority group will we be able to understand the whole of racial subordination in the United States.
A similar analysis applies to LatCrit theory. Critical Race Theory and LatCrit theory can work together to
study the intricacies of racial oppression. Moreover, in analyzing the place of Latina/os in the United
States, we must understand that not all Latina/os are created equal. Dif ferent Latina/o national origin
groups have had different experiences. To fully understand the whole, we must look at the various parts.
Con sequently, the Mexican, Cuban, Puerto Rican, and other experiences must be dissected and analyzed
individually. Only then will we have a fuller understanding of Latina/o subordination in this country.
[*1163]
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Appendix
A Bibliography of Chicana/o History Compiled by Professor Dennis Valdes, Chicano Studies University
ofMinnesota
Acua, Rodolfo, A Community Under Seige: A Chronicle of Chicanos East of the Los Angeles
River, 1945-1975 (Los Angeles: CSRC, 1984).
Acua, Rodolfo, Anything But Mexican: Chicanos in Contemp orary Los Angeles (London and New
York: Verso, 1996).
Acua, Rodolfo, Occupied America: A History of Chicanos (New York: Harper and Row, 3d. ed.
1988).
Allsup, Carl, The American G.I. Forum: Origins and Evolution (Austin: UT Center for Mexican American
Studies, 1982).
Almaguer, Tomas, Racial Fault Lines: The Historical Origins of White Supremacy in California (Berkeley,
Los Angeles and London: University of California Press, 1994).
Almaraz, Felix D., Jr., The San Antonio Missions and Their Sy stem of Land Tenure (Austin: University of
Texas Press, 1989).
Alonzo, Armando, Tejano Legacy: Rancheros and Settlers in South Texas, 1734-1900 (Albuquerque, NM:
University of New Mexico Press, 1998).
Anders, Evan, Boss Rule in South Texas: The Progressive Era (Austin: University of Texas Press, 1982).
Arroyo, Luis, & Antonio Rios-Bustamante, Cinco de Mayo: Sy mbol of National Self Determination
(Encino: Floricanto Press, 1991).
Ball, Larry D., Elfego Baca (El Paso, TX: Texas Western Press, 1992).
Bannon, John Francis, The Spanish Borderlands Frontier, 1513- 1821 (Albuquerque: University of New
Mexico Press, 1974).
Balderrama, Francisco, In Defense of La Raza: The Los Ang eles Mexican Consulate and the Mexican
Community, 1929 to 1936 (Tucson: University of Arizona Press, 1982).
Balderrama, Francisco, & Raymond Rodriguez, Decade of Betrayal: Mexican Repatriation in the 1930s
(Albuquerque: University of New Mexico Press, 1995).
Barger, W. K., & Ernesto Reza, The Farm Labor Movement in the Midwest: Social Change and Adaptation
Among Migrant Farmworkers (Austin: University of Texas Press, 1993).
Barrera, Mario, Race and Class in the Southwest: A Theory of [*1164] Racial Inequality (Notre Dame:
University of Notre Dame Press, 1979).
Barrera, Mario, Beyond Aztlan: Ethnic Autonomy in Compar ative Perspective (New York: Praeger, 1988).
Baxter, John O., Las Carneradas: Sheep Trade in New Mexico, 1799-1860 (Albuquerque: University of
New Mexico Press, 1987).
Baxter, John O., Dividing New Mexico's Waters, 1700-1912 (Albuquerque: University of New Mexico
Press, 1997).
Blackwelder, Julia Kirk, Women of the Depression: Caste & Culture in San Antonio, 1929-1939 (College
Station: Texas A&M University Press, 1984).
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Blawis, Patricia Bell, Tijerina and the Land Grants (New York: International Publishers, 1971).
Boyle, Susan Calafate, Los Capitalistas: Hispano Merchants and the Santa Fe Trade (Albuquerque:
University of New Mex ico Press, 1997).
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Press, 1993).
FOOTNOTE-1:
n1. For themes common to LatCrit Theory, see Francisco Valdes, Foreword - Poised at the
Cusp: LatCrit Theory, Outsider Jurisprudence and Latina/o Self-Employment, 2 Harv. Latino
L. Rev. 1, 52-59 (1997). See generally Symposium, Difference, Solidarity and Law: Building
Latina/o Communities Through LatCrit Theory, 19 UCLA Chicano-Latino L. Rev. 1(Spring
1998); Symposium, LatCrit: Latinas/os and the Law, 85 Cal. L. Rev. 1087, 10 La Raza L.J. 1
(1998); Symposium, LatCrit Theory: Naming and Launching a New Discourse of Critical
Legal Scholarship, 2 Harv. Latino L. Rev. 1 (1997); Colloquium, International Law, Human
Rights and LatCrit Theory, 78 U. Miami Inter-Am. L. Rev. 177 (1996-97); Colloquium,
Representing Latina/o Communities: Critical Race Theory and Practice, 9 La Raza L.J. 1
(1996).
n2. See David G. Gutierrez, Walls and Mirrors: Mexican Americans, Mexican Immigrants, and
the Politics of Ethnicity in the American Southwest 117 (1995). This is not to suggest that
Mexican-Americans did not fight for civil rights before World War II; despite poll taxes,
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53 U. Miami L. Rev. 1143
literacy tests, and violence designed to limit Mexican-American political power, they fought for
equality. See generally Juan Gomez-Quiones, Roots of Chicano Politics, 1600- 1940
(analyzing this history). Nonetheless, World War II, and the surrounding social, political, and
economic forces, commenced a resurgence in the insistence on demands for equal rights.
n3. See, e.g., Rodolfo Acua, Occupied America: A History of Chicanos 251-306 (3d
ed. 1988) (analyzing the transformative impact of World War II on Mexican-American
community).
n4. See, e.g., George I. Sanchez, Forgotten People: A Study of New Mexicans (1940).
n5. See, e.g., Ernesto Galarza, Farm Workers and Agri-Business in California 1947- 1960
(1977); Ernesto Galarza, Merchants of Labor: The Mexican Bracero Story (1964); Ernesto
Galarza, Spiders in the House and Workers in the Field (1970).
n6. See, e.g., Julian Samora, Los Mojados: The Wetback Story (1971); Julian Samora, Joe
Berna, & Albert Pena, Gunpowder Justice: A Reassessment of the Texas Rangers (1979).
n7. See Ricardo Romo, George I. Sanchez and the Civil Rights Movement: 1940-1960, 1 La
Raza L.J. 342, 342 (1986).
n8. See Gutierrez, supra note 2, at 131.
n9. F. Arturo Rosales, Chicano! The History of the Mexican-American Civil Rights Movement
93 (1997).
n10. See id. at 125.
n11. See Gutierrez, supra note 2, at 132. Similar arguments later eventually facilitated
successful desegregation efforts by African Americans. See Mary L. Dudziak, Desegregation as
a Cold War Imperative, 41 Stan. L. Rev. 61 (1988); see also Derrick A. Bell, Jr., Brown v.
Board of Education and the Interest-Convergence Dilemma, 93 Harv. L. Rev. 518, 524 (1980)
("The [Brown] decision helped to provide immediate credibility to America's struggle with
Communist countries to win the hearts and minds of emerging third world people. At least the
argument was made by lawyers for both the NAACP and the federal government. And the point
was not lost on the news media.") (footnotes omitted); Mary L. Dudziak, The Little Rock Crisis
and Foreign Affairs: Race, Resistance, and the Image of American Democracy, 70 So. Cal. L.
Rev. 1641 (1997) (analyzing the relationship between U.S. foreign affairs and civil rights
during the Eisenhower administration).
n12. See Gutierrez, supra note 2, at 144-45.
n13. See supra note 5 (citing Galarza's work in the area).
n14. See Gutierrez, supra note 2, at 158 (reviewing Galarza's writings and personal papers).
n15. See Rosales, supra note 9, at 119-20.
n16. See Luis R. Fraga, Preface, in "Seventh Annual Ernesto Galarza Commemorative Lecture
1992" (Stanford Center for Chicano Research, Stanford University).
n17. See Cordelia Chavez Candelaria, Introduction of Guest Lecturer, in "Seventh Annual
Ernesto Galarza Commemorative Lecture 1992" (Stanford Center for Chicano Research,
Stanford University).
n18. See id.
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53 U. Miami L. Rev. 1143
n19. See Ernesto Galarza, Herman Gallegos & Julian Samora, Mexican-Americans in the
Southwest at x, 9 (1970).
n20. See supra text accompanying notes 12, 13, 15, and 16. Chicana/o Studies scholars later
criticized the assimilationist model. For analysis of the limits of Mexican-American
assimilation, Kevin R. Johnson, "Melting Pot" or "Ring of Fire"? Assimilation and the
Mexican-American Experience, 85 Cal. L. Rev. 1259 (1997) and George A. Martinez, Latinos
Assimilation and the Law: A Philosophical Perspective, 19 UCLA Chicano-Latino Law Rev.
(Spring, 1998).
n21. See Gutierrez, supra note 2, at 163. LatCrit scholars have analyzed how immigration law
and policy disparately impacts the Mexican-American community. See, e.g., Kevin R. Johnson,
Public Benefits and Immigration: The Intersection of Immigration Status, Ethnicity, Gender,
and Class, 42 UCLA L. Rev. 1509 (1995); Elvia R. Arriola, LatCrit Theory, International
Human Rights, Popular Culture, and the Faces of Despair in INS Raids, 28 U. Miami Inter-Am.
L. Rev. 245 (1996-97).
n22. See generally Juan Ramon Garcia, Operation Wetback: The Mass Deportation of Mexican
Undocumented Workers in 1954 (1980) (documenting deportation campaign).
n23. Id. at 230-31.
n24. See Gutierrez, supra note 2, at 164-68. For a general historical analysis of the Chicana/o
movement see Carlos Muoz, Jr., youth, identity, power: The Chicano Movement
(1989).
n25. See generally Rosales, supra note 9.
n26. See Richard Delgado & Jean Stefancic, The Latino/a Condition: A Critical Reader 251
(1998).
n27. See Muoz, supra note 24, at 61-62; Rosales, supra note 9, at 180.
n28. See Gutierrez, supra note 2, at 184.
n29. Id. See generally Armando B. Rendon, Chicano Manifesto (1971) (articulating demands of
Chicana/o movement). For a historical analysis of the development of the ideology of
Chicanismo, see Ignacio M. Garcia, Chicanismo: The Forging of a Militant Ethos Among
Mexican Americans (1997).
n30. See Rosales, supra note 9, at 252-53.
n31. See Rosales, supra note 9, at 183-84; see also Muoz, supra note 24, at 75-78
(1989) (discussing 1969 conference in Denver at which the plan was developed).
n32. See Gutierrez, supra note 2, at 185.
n33. Rosales, supra note 9, at 253; see Muoz, supra note 24, at 127-69 (analyzing
demands by activists for Chicana/o Studies departments on campuses and the evolution of the
field over time).
n34. See Richard Griswold Del Castillo, The Treaty of Guadalupe Hidalgo: A Legacy of
Conflict 145 (1990). One leading legal expert on the Treaty was introduced to it through
Chicana/o Studies and teaches Chicana/o Studies courses in addition to law. See, e.g.,
Guadalupe T. Luna, "Agricultural Underdogs" and International Agreements: The Legal
Context of Agricultural Workers Within the Rural Economy, 26 N.M. L. Rev. 9 (1996);
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53 U. Miami L. Rev. 1143
Guadalupe T. Luna, Chicana/o Land Tenure in the Agrarian Domain: On the Edges of a Naked
Knife, 3 Mich. J. Race & L. 39 (1999).
n35. See Griswold del Castillo, supra note 34, at 145.
n36. See Rosales, supra note 9, at 154.
n37. See generally Acua, supra note 3. Until Acua's pathbreaking first edition
of his book in 1972, the standard in the field was Carey McWilliams, North from Mexico: The
Spanish- Speaking People in the United States (1948). An activist in his own rite, McWilliams
was involved in the successful overturning of the conviction in the infamous Sleepy Lagoon
case in which Chicano youths were wrongly accused of murder. See Gutierrez, supra note 2, at
128.
n38. See Mario Barrera, Race and Class in the Southwest (1979).
n39. See Mario Barrera, The Study of Politics and the Chicano, 5 Aztlan 9 (1974).
n40. See Roxanne Dunbar Ortiz, Roots of Resistance: Land Tenure in New Mexico, 1680-1980
(1980).
n41. See Vicki L. Ruiz, From Out of the Shadows: Mexican Women in Twentieth Century
America (1998); Vicki L. Ruiz, Cannery Women, Cannery Lives: Mexican Women,
Unionization, and the California Food Processing Industry, 1930-1950 (1987).
n42. See Mary Romero, Maid in the U.S.A. (1992).
n43. See Living Chicana Theory (Carla Trujillo ed., 1998).
n44. See Rosales, supra note 9, at 264.
n45. 412 U.S. 755 (1973).
n46. 457 U.S. 202(1982).
n47. See League of United Latin Americans v. Wilson, 1998 U.S. Dist. LEXIS 3368 (C.D. Cal.
Mar. 17, 1998); League of United Latin Americans v. Wilson, 908 F. Supp. 755 (C.D. Cal.
1995).
n48. Cf. Derrick A. Bell, Diversity and Academic Freedom, 43 J. Leg. Educ. 371, 377 (1993)
("When under pressure from students or alumni law schools look beyond law school credentials
and hire the best minority they can find ....").
n49. Leo Romero began his law teaching career in 1970. He has taught for many years at the
University of New Mexico School of Law, including six years as its dean.
n50. Cruz Reynoso entered the legal academy in 1972 and later served for five years as a
Justice on the Supreme Court of California. He now teaches at the UCLA School of Law and is
a member of the U.S. Commission on Civil Rights.
n51. Richard Delgado began teaching law in 1974. A founder of the Critical Race Theory
movement, Delgado is currently teaching at the University of Colorado School of Law. Among
his many books and articles, he is co-editor with Jean Stefancic of The Latino/a Condition,
supra note 26, an anthology of readings on LatCrit Theory.
n52. See Richard Delgado & Vicky Palacios, Mexican-Americans as a Legally Cognizable
Class Under Rule 23 and the Equal Protection Clause, 50 Notre Dame L. Rev. 393 (1975).
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53 U. Miami L. Rev. 1143
n53. See Leo Romero, Richard Delgado & Cruz Reynoso, The Legal Education of Chicano
Students: A Study in Mutual Accommodation and Cultural Conflict, 5 N.M. L. Rev. 177
(1975).
n54. See Michael A. Olivas, The Education of Latino Lawyers: An Essay on Crop Cultivation,
14 UCLA Chicano-Latino L. Rev. 117, 128 (1994) [hereinafter Olivas, Latino Lawyers].
Though active in his efforts to increase the numbers of Latina/os into legal academia, Olivas is
a well-established scholar whose important works include The Law and Higher Education (2d
ed. 1997), Storytelling Out of School: Undocumented College Residency, Race, and Reaction,
22 Hastings Const. L.Q. 1019 (1995), Reflections on Professorial Academic Freedom: Second
Thoughts on the Third "Essential Freedom", 45 Stan. L. Rev. 1835 (1993), Legal Norms in
Law School Admissions: An Essay on Parallel Universes, 42 J. Leg. Educ. 103 (1992),
"Breaking the Law" on Principle: An Essay on Lawyers' Dilemmas, Unpopular Causes, and
Legal Regimes, 52 U. Pitt. L. Rev. 815 (1991) [hereinafter Olivas, "Breaking the Law"],
Unaccompanied Refugee Children: Detention, Due Process, and Disgrace, 2 Stan. L. & Pol'y
Rev. 159 (1990), and The Chronicles, My Grandfather's Stories, and Immigration Law: The
Slave Traders as Racial History, 34 St. Louis U. L.J. 425 (1990) [hereinafter Olivas, Slave
Traders Chronicle].
n55. See Michael A. Olivas, Latino/a Law Professor Newsletter, spring 1998; see also
Francisco Valdes, Under Construction: LatCrit Consciousness, Community and Theory, 85 Cal.
L. Rev. 1087, 1134-37 (1997), 10 La Raza L.J. 1, 48-51 (1998) (analyzing impact of under-
representation of Latina/os in legal education). Of the 117 of the Latina/o law professors whose
backgrounds are known, 71 are of Mexican ancestry. See Olivas, Latino Lawyers, supra note
54.
n56. See Yale Law's Lack of Latinos, Conn. L. Trib., Nov. 3, 1997 (reporting release of annual
Dirty Dozen list); Ken Myers, Hispanic Bar Raps 'Dirty Dozen' - Institutions Without Latinos,
Nat'l L.J. Nov. 9, 1992, at 4 (same).
n57. See Olivas, "Breaking the Law", supra note 54, at 833-35 (describing efforts).
n58. See Valdes, supra note 1, at 31. Critical Race Theory also has begun to focus on linking
theory to practice. See, e.g., Eric K. Yamamoto, Critical Race Praxis: Race Theory and
Political Lawyering Praxis in Post-Civil Rights America, 95 Mich. L. Rev. 821 (1997).
n59. See Valdes, supra note 1, at 53.
n60. See, e.g., Max J. Castro, Making Pan Latino: Latino Pan-Ethnicity and the Controversial
Case of the Cubans, 2 Harv. Latino L. Rev. 179, 185-87 (1997); Berta Esperanza Hernandez-
Truyol, Borders (En)gendered: Normativities, Latinas, and a LatCrit Paradigm, 72 N.Y.U. L.
Rev. 882 (1997) (analyzing the role of culture to Latina/o identity).
n61. See Martinez, supra note 20.
n62. Stephen Zamora, The Americanization of Mexican Law: Non-Trade Issues in the North
American Free Trade Agreement, 24 Law & Pol'y Int'l Bus. 391, 395 (1993); see George A.
Martinez, Dispute Resolution and the Treaty of Guadalupe Hidalgo: Parallels and Possible
Lessons for Dispute Resolution Under NAFTA, 5 Sw. J.L. & Trade in the Americas 147(Spring
1998).
n63. See Martinez, supra note 20.
n64. See Johnson, supra note 20, at 1281-86 (analyzing limits imposed by society on Mexican
Americans seeking to assimilate).
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53 U. Miami L. Rev. 1143
n65. See, e.g., Steven W. Bender, Direct Democracy and Distrust: The Relationship Between
Language Law Rhetoric and the Language Vigilantism Experience, 2 Harv. Latino L. Rev. 145
(1997); Christopher David Ruiz Cameron, How The Garcia Cousins Lost Their Accents:
Understanding the Language of Title VII Decisions Approving English-Only Rules as the
Product of Racial Dualism, Latino Invisibility, and Legal Indeterminacy, 85 Cal. L. Rev. 1347
(1997), 10 La Raza L.J. 261 (1998).
n66. See, e.g., Peter Brimelow, Alien Nation 272-74 (1995).
n67. See Kevin R. Johnson, Some Thoughts on the Future of Latino Legal Scholarship, 2 Harv.
Latino L. Rev. 101, 117-29 (1997).
n68. See Kevin R. Johnson, Civil Rights and Immigration: Challenges for the Latino
Community in the Twenty-First Century, 8 La Raza L.J. 42, 66-67 (1995); Valdes, supra note
1, at 53-54.
n69. See Rachel F. Moran, Neither Black Nor White, 2 Harv. Latino L.Rev. 61, 87 (1997); Bill
Piatt, Black and Brown in America: The Case for Cooperation 156 (1997).
n70. See Jorge C. Rangel & Carlos M. Alcala, Project Report: De Jure Segregation of Chicanos
in Texas Schools, 7 Harv. C.R.-C.L. L. Rev. 307 (1972) (documenting history of segregation of
Mexican-Americans in public schools and Texas society generally).
n71. See Nathan Glazer, We Are All Multiculturalists Now (1997).
n72. See George A. Martinez, The Legal Construction of Race: Mexican-Americans and
Whiteness, 2 Harv. Latino L. Rev. 321 (1997).
n73. See generally George A. Martinez, Legal Indeterminacy, Judicial Discretion and the
Mexican-American Litigation Experience: 1930-1980, 27 U.C. Davis. L. Rev. 555 (1994)
(reviewing key judicial decisions involving civil rights of Mexican-Americans and concluding
that courts frequently exercise discretion to detriment of minorities).
n74. See Johnson, supra note 68, at 55-56.
n75. See id. at 48-49 (summarizing events); Robert R. Alvarez, Jr., The Lemon Grove Incident:
The Nation's First Successful Desegregation Case, 32 J. San Diego Hist. 116 (1986); see also
Westminister School Dist. v. Mendez, 161 F.2d 774 (9th Cir. 1947) (holding that public school
system had unlawfully segregated Mexican American students).
n76. See Mary Pardo, Mexican American Women Grassroots Community Activists: "Mothers
of East Los Angeles", Frontiers, Vol. 11, at 1 (1990).
n77. See supra note 1 (citing symposia).
n78. See Delgado & Palacios, supra note 52. Indeed, not until the l950s was it clear that the
Equal Protection Clause applied to persons of Mexican ancestry, see Hernandez v. Texas, 347
U.S. 475 (1954); see also Ian F. Haney Lopez, Race and Erasure: The Salience of Race to
LatCrit Theory, 85 Cal. L. Rev. 1153 (1997), 10 La Raza L. J. 57 (1998) (analyzing
significance of Hernandez).
n79. See Linda Chavez, Immigration Not About Race, USA Today, May 31, 1995, at 13A
(objecting to restrictionist claims that immigrants of color are somehow transforming United
States).
n80. See Ruben Navarrette, Jr., A Darker Shade of Crimson (1993); Richard Rodriguez,
Hunger of Memory (1982).
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53 U. Miami L. Rev. 1143
n81. See Johnson, supra note 67, at 129-38.
n82. See id. at 129.
n83. See Valdes, supra note 1, at 54.
n84. Indeed, the Mexican-American communities in Texas, New Mexico, Arizona, and
California developed differently based on historical, economic, and political circumstances
peculiar to each state. See Iris H.W. Engstrand, The Impact of the U.S.-Mexican War on the
Spanish Southwest, in Culture y Cultura: Consequences of the U.S.-Mexican War, 1846- 1848
at 18-24 (1998). The different experiences between Cuban American and other Latina/os are
implicit in Castro, supra note 60, which analyzes the potential for integrating Cubans into a
larger Latina/o community in light of the specific historical experience of Cuban Americans.
n85. See supra text accompanying notes 12, 13, 15, and 16.
n86. See Gutierrez, supra note 2 (analyzing tensions among Mexican-Americans on issue of
immigration). Some of the differences and tensions are explored in Kevin R. Johnson,
Immigration and Latino Identity, 19 UCLA Chicano-Latino L. Rev. 197 (Spring 1998).
n87. See, e.g., Arriola, supra note 21 (studying impact of immigration enforcement on
Mexican-American community); Martinez, supra note 73 (analyzing Mexican-American
litigation experience); Haney Lopez, supra note 78 (analyzing racialization of Mexican-
Americans in Texas); Margaret E. Montoya, Mascaras, Trenzas, y Greas: Un/Masking
the Self While Un/Braiding Latina Stories and legal Discourse, 17 Harv. Women's L.J. 185, 15
UCLA Chicano-Latino L. Rev. 1 (1994) (analyzing how Chicanas adopt "masks" that are
acceptable to dominant culture).
n88. Cf. Alex M. Johnson, Jr., The New Voice of Color, 100 Yale L.J. 2007 (1991) (contending
that minority professors have distinctive "voice" to add to legal scholarship).
n89. For a collection of the papers presented at the conference, see Symposium, Understanding
the Treaty of Guadalupe Hidalgo on its 150th Anniversary, 5 Sw. J.L. & Trade in the Americas
1(Spring 1998).
n90. There are some nascent suggestions that this might occur with the advent of Latina/o
Studies. For example, a recent book, The Latino Studies Reader: Culture, Economy, and
Society (Antonia Darder & Rodolfo D. Torres eds., 1998), includes readings on various Latin
American national origin sub-groups).
n91. See, e.g., Richard Delgado, Rodrigo's Fifteenth Chronicle: Racial Mixture, Latino- Critical
Scholarship, and the Black-White Binary, 75 Tex. L. Rev. 1181 (1997). This challenge is not
limited to LatCrit scholars but has been asserted by academics in disciplines other than law.
See, e.g., Mary Romero, Introduction, in Challenging Fronteras: Structuring Latina and Latino
Lives in the U.S. at xiv (Mary Romero, Pierette Hondagneu-Sotelo, & Vilma Ortiz eds., 1997)
("Clearly, we cannot rely on the dominant culture's notions of 'whiteness' or 'blackness' to
assess racial identity among Latinos in the U.S. The binary thinking of race relations in this
country is so ingrained in the dominant culture that it continues to shape what we see.").
n92. See Leslie Espinoza & Angela P. Harris, Afterword: Embracing the Tar-Baby - LatCrit
Theory and the Sticky Mess of Race, 85 Cal. L. Rev. 1585, 1594-1605 (1997), (articulating this
argument).
n93. Showing the need for a multiracial approach to race scholarship, Michael Olivas analyzed
one of Derrick Bell's famous fictional parables, "The Chronicle of the Space Traders," which
suggested that whites might surrender all African Americans to "space traders" for world peace,
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53 U. Miami L. Rev. 1143
and concluded that comparable actions hade been taken in this nation's history by the U.S.
government against Asians, Mexican-Americans, and Native Americans. See Olivas, Slave
Traders Chronicle, supra note 54.
n94. See Frank Bruni, California Regent's New Focus: Ethnic Studies, N.Y. Times, June 18,
1998, at A20 (reporting that Ward Connerly, the Regent of the University of California who led
the effort to end affirmative action in the UC system, questioned the soundness of ethnic
studies programs).
n95. See, e.g., Michael Omi & Howard Winant, Racial Formation in the United States (1994);
Ronald Takaki, Strangers From a Different Shore: A History of Asian Americans (1988).
n96. See, e.g., Kwame Anthony Appiah, In My Father's House: Africa in the Philosophy of
Culture (1992); Henry Louis Gates et al., Speaking of Race, Speaking of Sex: Hate Speech,
Civil Rights, and Civil Liberties (1994); Cornel West, Race Matters (1994).
n97. See, e.g., Jack D. Forbes, Africans and Native Americans: The Language of Race and the
Evolution of Red-Black Peoples (2d ed. 1993).
n98. See Kevin R. Johnson, Racial Hierarchy, Asian Americans and Latinos as "Foreigners,"
and Social Change: Is Law the Way to Go?, 76 Or. L. Rev. 347, 358-69 (1997).
n99. See George A. Martinez, African-Americans, Latinos, and the Construction of Race:
Toward an Epistemic Coalition, 19 UCLA Chicano-Latino L. Rev. 213(Spring 1998).
n100. See Bill Ong Hing, Beyond The Rhetoric of Assimilation and Cultural Pluralism:
Addressing the Tension of Separatism and Conflict in an Immigration-Drive Multiracial
Society, 81 Cal. L. Rev. 863, 889 (1993); Lisa C. Ikemoto, Traces of the Master Narrative in
the Story of African/Korean American Conflict: How We Constructed "Los Angeles," 66 S.
Cal. L. Rev. 1581 (1993); Reginald Leamon Robinson, "The Other Against Itself": The Violent
Discourse Between Korean and African Americans, 67 S. Cal. L. Rev. 15 (1993).
n101. See Kevin R. Johnson, Race, The Immigration Laws, and Domestic Race Relations: A
"Magic Mirror" Into the Heart of Darkness, 73 Ind. L.J. 1111(Fall 1998) (analyzing this
episode of interethnic conflict).
n102. See generally Neil Foley, The White Scourge: Mexicans, Blacks and Poor Whites in the
Cotton Culture of Central Texas (1997).
n103. See, e.g., Yamamoto, supra note 58 (analyzing conflict between various minority groups
in public school educations that implicated affirmative action); see also Gabriel Chin, Sumi
Cho, Jerry Kang, & Frank Wu, Beyond Self-Interest: Asian Pacific Americans Toward a
Community of Justice (1997) (offering arguments by four Asian American law professors in
support of affirmative action).
n104. See Margaret M. Russell, Entering Great America: Reflections on Race and the
Convergence of Progressive Legal Theory and Practice, 43 Hastings L.J. 749, 756 (1992).
n105. See supra text accompanying notes 4, 5, and 6.
n106. See Acua, supra note 3.
n107. See Barrera, supra notes 38, 39.
n108. For an annotated bibliography of critical Latina/o scholarship, including work by
academics in disciplines other than law, see Jean Stefancic, Latino and Latina Critical Theory:
An Annotated Bibliography, 85 Cal. L. Rev. 1509, 10 La Raza L. J. 423 (1998).
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53 U. Miami L. Rev. 1143
n109. See Griswold Del Castillo, supra note 34.
n110. See supra note 34 (citing articles).
n111. See Martinez, supra note 73, at 574-604 (analyzing school desegregation litigation
brought by Mexican-Americans); Rachel F. Moran, Getting a Foot in Door: The Hispanic Push
for Equal Educational Opportunity in Denver, 2 Kan. J.L. & Pub. Pol'y 35 (1992) (analyzing
interests of Mexican-Americans in school desegregation litigation in Denver).
n112. See, e.g., Kitty Calavita, Inside the State (1992) (analyzing how U.S. immigration
bureaucracy transformed law to suit its own agenda in Bracero Program).
n113. See Christopher David Ruiz Cameron, One Hundred Fifty Years of Solitude: A Law
Professor Critiques the Dominance of Historical Scholarship on the Treaty of Guadalupe
Hidalgo, 5 Sw. J.L. & Trade in the Americas (forthcoming 1998) (contending that historical
studies of Treaty often oversimplified complex role of law in stripping away rights of persons
of Mexican ancestry).
n114. See generally Richard Griswold del Castillo, The U.S.-Mexican War: Contemporary
Implications for Mexican Civil and International Rights, in Culture y Cultura, supra note 85, at
76 (analyzing efforts to protect Mexican American civil rights through Treaty).
n115. See generally Richard Delgado & Jean Stefancic, Failed Revolutions (1994) (analyzing
limits of legal imagination in achieving social change).