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The Guardianship Certification Board:
A Legislative Attempt To Protect The Elderly

By Don D. Ford III

Among the innovations of the 79th Texas Legislature was the creation of a “Guardianship Certification Board.” Established pursuant to Senate Bill 6 of the 2005 Session, the Board will prescribe a certification process for individuals, other than volunteers, who serve as private professional guardians, or who provide guardianship services to wards of guardianship programs.
The Board is composed of 15 members – 11 appointed by the Texas Supreme Court, four appointed by the Governor. The Supreme Court appointees are attorneys and judges who work in the field of guardianship. The Governor’s four appointees will be “public” members, not necessarily lawyers. On March 6, 2006, the Supreme Court announced its 11 appointees, but the Governor has yet to announce the appointment of public members.
The Board is responsible for determining qualifications for private guardian certification. Once certification criteria is developed, the Board will consider applications from those interested in becoming certified and will issue certificates to those who meet the appropriate criteria. Although not yet clear, it appears the Board will also consider complaints against certified guardians, and will determine whether those guardians should retain their certification.
The creation of the Guardianship Certification Board marks a significant effort on the part of the Legislature to ensure that institutions serving as guardians of elderly individuals meet minimum standards in the care of those who cannot take care of themselves. The Board’s primary goal is to establish criteria for those who serve as private professional guardians. This is not, however, intended to create an additional layer of scrutiny for those friends and family members who volunteer as guardians for the elderly.
With the Board set to meet for the first time in early May, 2006, those interested in Elder Law and Guardianships should watch for the forthcoming promulgation of criteria for private guardians.

Don D. Ford III is a partner with Ford & Mathiason LLP, practicing in the areas of Estate Planning, Probate, and Guardianship. He is a member of the editorial board of The Houston Lawyer magazine and is a Supreme Court appointee to the Guardianship Certification Board.

Not all Trash is Abandoned Property

By Alex G. Azzo

Sharpe v. Turley, No. 05-04-01521-CV (Tex. App. – Dallas, March 23, 2006), is a somewhat convoluted summary judgment case explaining why not all trash is abandoned property. Also, the Dallas Court of Appeals distinguishes Fourth Amendment governmental acts from the acts of individuals.
Attorney Turley represented several clients against the Catholic Diocese. Sharpe obtained documents from a Diocese dumpster and told Turley that Turley might find them useful in his lawsuit against the church. Turley subpoenaed the items in Sharpe’s possession and took Sharpe’s deposition.
Turley gave the documents he obtained from Sharpe to the Diocese lawyer at the conclusion of that lawsuit. Sharpe then sued Turley over the documents, asserting that Sharpe lawfully recovered the documents in question because the Diocese abandoned them in the dumpster. Sharpe correctly argued that abandoned property cannot be stolen. But, did the Diocese really abandon the documents by placing them in the Diocese dumpster?
The Dallas Court of Appeals held the documents were not abandoned by the Diocese, citing the following case specific facts: (1) the dumpster was located on Diocese property; (2) the documents were placed in the dumpster by employees of the Diocese; (3) a private company was contracted to dispose of the contents in the dumpster; (4) the trash was to be hauled to a private landfill; and (5) the Diocese never intended for the trash to leave its agents’ control.
A person has no right to enter private property to remove anything just because the property is accessible to the public. The absence of a “no trespassing sign” is not determinative of the outcome.
Fourth Amendment search and seizure law allowing government agents to search discarded trash did not apply in this case. Had government agents searched the Diocese dumpster, a Fourth Amendment analysis of expectation of privacy would have applied. However, ownership of the garbage in this case remains with the Diocese.
Because Sharpe removed Diocesan property without Diocese consent, his case against Turley with respect to the documents fails.

Alex G. Azzo is a partner at Azzo & Azzo. He is licensed in Texas and Florida, and he is board certified in Criminal Law by the Texas Board of Legal Specialization. Azzo is a member of The Houston Lawyer editorial board.

U.S. Supreme Court Holds Fourth Amendment Permits Anticipatory Search Warrants

By Don Rogers

The U. S. Supreme Court recently held that anticipatory search warrants are valid under the Fourth Amendment. See United States v. Grubbs, 126 S.Ct. 1494 (2006). Grubbs ordered a videotape containing child pornography on a website operated by an undercover postal inspector. After arranging a controlled delivery of the pornographic material, a postal inspector obtained a search warrant from a federal magistrate judge under an affidavit referring to attachments describing Grubbs’ residence, the item to be seized, and containing a “triggering condition” that the warrant would not be executed “unless and until the parcel has been received by a person(s) and has been physically taken into the residence.”
The warrant was executed shortly after Grubbs’ wife signed for the parcel delivered by an undercover postal inspector. The videotape was then seized and Grubbs was detained. Grubbs received a copy of the warrant and the attachments, but not the supporting affidavit explaining the conditions precedent to the warrant’s execution. Grubbs was arrested after he admitted ordering the videotape, and was charged with the federal offense of receiving a visual depiction of a minor engaged in sexual activity.
Grubbs moved to suppress the evidence on grounds that the warrant failed to list the triggering condition mentioned only in the affidavit. After the district court denied suppression, Grubbs pled guilty and appealed the court’s ruling.
The Ninth Circuit held that “particularity” under the Fourth Amendment applied to conditions precedent to anticipatory search warrants, and that the search was illegal because the postal inspectors failed to present a copy of the affidavit (the only document listing the triggering conditions) to Grubbs and his wife.
The Supreme Court first addressed the antecedent question of whether anticipatory search warrants, namely warrants “based upon an affidavit showing probable cause that at some future time (but not presently) certain evidence of a crime will be located at a specified place,” are categorically unconstitutional. The Court noticed that most anticipatory warrants subject their execution to a “triggering condition” other than the mere passage of time, such as the condition precedent in this case. Rejecting Grubbs’ argument that anticipatory warrants contravene the Fourth Amendment’s provision that “no warrant’s shall issue, but upon probable cause.” The Court observed that probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular location,” and determined that the fact that contraband is not located at the premises to be searched at the time of the warrant’s issuance is immaterial so long as there is probable cause to believe that contraband will be found when the warrant is actually executed.
The Court found that anticipatory warrants were no different in principle from ordinary warrants in that both required a magistrate’s determination “(1) that it is now probable that (2) contraband, evidence of a crime, or a fugitive will be on the described premises (3) when the warrant is executed.” Two additional prerequisites must be satisfied when a warrant is anticipatory: (1) there must be “a fair probability that contraband or evidence of a crime will be found in a particular place” if the triggering condition occurs; and, (2) there must be probable cause to believe the triggering condition will occur. The Court held that in this case the triggering condition – successful delivery of the package to the residence – established probable cause for the search, and the affidavit established probable cause to believe the triggering condition would in fact occur, so the issuing magistrate had a substantial basis for concluding probable cause.
The Court rejected the Ninth Circuit’s application of the Fourth Amendment’s particularity requirement, observing that warrants need only describe the place to be searched and the persons or things to be seized, not the triggering condition.
The Grubbs decision, while clearly authorizing anticipatory search warrants in federal cases, may not apply to search warrants issued by Texas magistrates because of language in Article 18.01(c) of the Texas Code of Criminal Procedure that prohibits search warrants to be issued unless sworn affidavits show facts to establish probable cause that “the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.” This language appears to require subject matter to be physically on the properties or persons to be searched at the time search warrants are issued. See Mahmoudi v. State, 999 S.W.2d 69, 71-72 (Tex.App.—Houston [14th Dist.] 1999, pet. ref’d). In Toone v. State, 872 S.W.2d 750, 751 (Tex.Crim.App. 1994), the Court of Criminal Appeals authorized anticipatory search warrants issued by federal magistrates in Texas state prosecutions on the basis that Article 18.01 does not purport to govern federal search warrants, but expressly left open (and has yet to address the question of) whether Article 18.01(c) prohibits issuance of anticipatory search warrants by Texas magistrates.

Don Rogers is an assistant district attorney with the Harris County District Attorney’s Office. He received his B.B.A., J.D., and LL.M. degrees from the University of Houston, and is board certified in criminal law by the Texas Board of Legal Specialization. He is a member of The Houston Lawyer editorial board.

Review of Fourth and Fifth Amendment Rights

By Fred A. Simpson

The Corpus Christi Court of Appeals issued a rather lengthy criminal law opinion (with 184 footnotes) on April 7, 2006 styled Rodriguez v. State, ___ S.W.3d ___, No. 13-02-607 CR. In a 4-2 en banc decision, the majority, concurring, and dissenting opinions present a collective review of numerous statutory provisions, common law rules, and standards of appellate review for such aspects of criminal law as:

• legal and factual sufficiency of evidence
• motions to suppress
• routine traffic stops
• investigative detention vs. arrest
• public intoxication
• intoxication assault
• when Miranda warnings are required
• custodial interrogation
• unlawful arrest and “fruits of the poisonous tree”
• non-constitutional error
• refusal of breath tests
• exclusion of evidence
• newly discovered evidence
• denial of motions for new trial
• ineffective assistance of counsel

The facts of the case show how a jury found a municipal judge in Hidalgo County guilty of intoxication assault of a motorcyclist with his motor vehicle. The judge was fined and sentenced to a six year incarceration. Police activity at the scene of the accident, later at the police station, and at the judge’s home even later, were all subject to the appellate court’s review which affirmed trial court proceedings. The three opinions present a rather comprehensive update on constitutional law concerning the items listed above.

Fred A. Simpson is a litigation partner at Jackson Walker L.L.P. He is an associate editor for The Houston Lawyer.

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