HOUSTON COURT OF APPEALS BLAMES DEFENDANT FOR TEXAS ATTORNEY'S FAILURE TO PROVIDE IMMIGRATION WARNINGS

 Because it affects so many resident aliens and other immigrants in the process of becoming citizens in Dallas and other metropolitan parts of Texas, I have been keeping my eye closely on ongoing developments in Texas applying the Supreme Court's 2010 decision in Padilla v. Kentucky. In Padilla, the Supreme Court held that defense lawyers have a duty under the Sixth Amendment of the United States Constitution to accurately and specifically advise a defendant about deportation and other immigration consequences that will result from a guilty plea. A defendant will plead guilty either under an "open" guilty plea to a judge or jury, where the punishment is left to the judge or jury, or in a situation involving a plea bargain, a more common scenario. The case law says that, whenever a defendant pleads guilty and waives his rights, the defendant has to be informed about immigration consequences in terms that are "succinct, clear and specific."

In a scenario where the Court blamed the defendant even though the lawyer did not comply with Padilla, the Fourteenth Court of Appeals in Houston (Case No. 14-11-00730-CR) held last week that a defendant failed to establish his Padilla claim, since there were indications that he disregarded advice from defense counsel that would not have complied with Padilla. It did not matter that the defendant had been granted asylum in the United States 10 years earlier due to being a target of violence in El Salvador.

The Court held: "his trial counsel's advice, no matter how inaccurate it may have been, did not influence his decision to plead guilty." This seems to me to entirely miss the point of Padilla; with all due respect to the Court, it could be seen as an attempt to water-down Padilla in Texas; it would be like a doctor saying: "well, he would not sit still during surgery, since I did not give him anesthetic, so it is his fault that he lost all his teeth." The reason people hire a doctor or a lawyer is for expertise and guidance in adherence with constitutional requirements, not to given up their rights.

The courts in Texas seem to be understandably concerned about "you-cannot-lead-a-stubborn-horse-to-water" situations where the horse will not accept an attractive plea bargain, but those concerns are limited to considerations and procedural realities under state law. https://askcompetentlawyer.com/civil-litigation/ Of course, the vast majority of cases have been historically resolved by attractive plea bargain offers, due to public finance constraints, and since most defendants do not want to take the risk of a jury imposing a heavy sentence. In Dallas County, for example, there were almost 28,000 non-capital felony criminal cases that were filed in 2011 that involved a court-appointed lawyer.

Again with due respect to the Houston Court, it seems cavalier to play games with Padilla:

In a twist that I have not seen before, the Houston Court seemingly considered the defendant's criminal history, in terms of leniency having been shown by federal immigration officials, even though such considerations as an exclusive matter of concern for the federal government are no business of state appellate courts.

Also, this decision was handed down as "un-published," which means that the Court takes the position that it is not really an important situation, and thus should not attract much attention. I believe the situation is completely opposite.

The Court never cited a specific case with the same reasoning. The Court relied on application of broad principles and on a case where the defendant showed "total inaction" about the "possibility" of deportation after the lawyer gave immigration advice. Again, Padilla is about actual, correct advice, not possibilities.

Many constitutional protections have been initiated by requiring the state courts and legislative branches to do things that they do not want, such as providing a court-appointed lawyer to begin with. In the Padilla situation, no lawyer likes to advise a client to reject a plea bargain offer that will keep the client from going to prison, but in many circumstances, Padilla effectively requires such advice to be given on consideration of actual immigration consequences. As inconvenient and expensive as it may be to enforce Padilla in a border state, the courts have a constitutional duty to do so.