Things may have gotten a lot more interesting in the case where the Hays County DA, and the County Court Judge recused themselves over a filing the defendant asserts is a clear violation of his United States and Texas Constitutional Rights.
The Visiting Judge assigned was a top level appeals judge before his retirement in 2020. We are unsure how many times he has taken the bench as a visiting judge or what types of cases he has been assigned, but this case is potentially a perfect match for his tenure in the Court of Appeals Circuit.
The argument from the defense has not changed, only the way it continues to be represented. At the end of the day, at the root of the argument, it is the same principle. The American People; especially Texans, have the lawful right to challenge the government in redress of concerns.
When the government fails to follow its own steps, properly, the citizen is not the suspect, but the case was filed as the citizen being blamed for the Kyle Police Chief’s failure to duty.
The concept is easy to understand. The government must perform its duty properly, before it can say a citizen is a problem. The City of Kyle has yet to perform its lawfully required duty.
Because of the wording in the Texas Penal Code 42.07(a)(7), says one could be offended if one sends messages in a manner that reasonable likely offends another, it becomes the same constitutional challenge that has won before, but it has a twist.
This time, this is about communicating to the government, and not to a private party. This is where 1st Amendment Rights are codified. The previous case laws do not reference the government being the complainant, unless some form of danger was presented to the government.
In this case, the duty of the government was questioned. A duty that has yet to occur. So now, the visiting judge will have an opportunity to review two arguments before moving forward with the cause.
The first argument comes as a motion to dismiss and focuses on a lack of jurisdiction claim. If denied it becomes an immediate appealable item to the Court of Appeals.
The second argument is the motion to quash and states the way the charge was utilized has created a constitutional violation, do to being to vague or improper, because there are two concurrent causes running in the matter. Again, if denied, it can be immediately appealed.
The first cause, as defined in Texas Penal Code 6.04, is the failure to duty by the government, which created the second cause of harassment. Harassment would not exist if there wasn’t a need to contact the government. The government never acted and neglected its duty. If the neglect did not happen, the cause of harassment would not have occurred.
Essentially, the citizen cannot be held criminally responsible for the failures of the government.
Click HERE for the Motion to Quash and let us know your opinion, if you have one, or follow us to see how the proceedings unfold.
Don’t forget, there is already a Court of Appeals case on part of this matter, filed as a Habeas Corpus application, and a Federal Lawsuit pending in the Western District of Texas on the planned retaliation of the Kyle Police Chief. All previously blogged about.