My Train of Thought: Banishment... Transportation... Outlawry...

 Posted on January 07, 2008 in Uncategorized

Ken Lammers notes that miscreants in Houston County, Georgia, might find themselves, like Romeo, banished from the county.

In Virginia, Ken found, banishment is legal: in Loving v. Commonwealth, Mildred and Richard were forced to leave Virginia for 25 years for miscegenation; the Virginia Supreme Court upheld the banishment. The U.S. Supreme Court reversed the decision on other grounds.

In Texas, banishment within the state (as in the Georgia cases) would at first blush appear to be okay - judges routinely require people to remain in a particular county as a term of probation; in an appropriate case that county could be one other than the court's jurisdiction. In Johnson v. State, though, the intermediate Corpus Christi Court of Appeals rejected banishment from the county as a condition of probation: "banishing appellant from the county, particularly when he is broke and unemployed is not reasonably related to his rehabilitation, and unduly restricts his liberty," and noted, "The State of Georgia apparently does permit one political subdivision to dump persons it considers undesirable upon another." There, of course, is an additional problem with intrastate banishment: if Harris County's banishees wind up in Montgomery County, Montgomery County is going to send its banishees screaming to Harris County.

Banishment from the state (as in Virginia), however, is forbidden by Article 1, Section 20 of the Texas Constitution: "No citizen shall be outlawed. No person shall be transported out of the State for any offense committed within the same."

One reported Texas case referring to the prohibition of outlawry was Peeler v. Hughes and Luce.

Peeler stands for two related propositions: (1) that a convicted criminal defendant can't sue his lawyer for negligence without first reopening the case and winning; and (2) that it's a really, really, really bad idea to hire a biglaw civil firm to defend you when you're facing criminal charges. According to Ms. Peeler, she was offered transactional immunity to testify against codefendants [at least one of whom was represented by her firm, Hughes and Luce]; her lawyer did not pass the offer on to her, and she pleaded guilty instead. The court held that her criminal actions were the sole proximate cause of her conviction.

This is why Texas criminal-defense lawyers don't need E&O insurance.