ADVOCACY

While there is no statute or precedent expressly addressing how to challenge a Texas justice-involved veteran’s (JIV) denial of participation in a veterans treatment court (VTC) program by the attorney representing the state, constitutional principles, provisions of the Texas Code of Criminal Procedure, and common law unquestionably establish that a JIV’s eligibility to participation determination compels but one rational decision under unequivocal and well-established legal principles: the right to due process.

Absent an expressed ministerial duty mandated by statute or an expressed liberty or property interest created by statute, a “clear right” is recognized when the right in question can “be found when the combined weight of our precedents clearly establishes the proposition of law on which relief is predicated. The weight-of-precedent finding of a ministerial duty [or a statutorily created liberty or property interest] can occur when a lower court’s action flies in the face of legal principles that are rightly characterized as foundational, being basic to the system and longstanding.”[9]

As a threshold matter, it “shall be the primary duty of all prosecuting attorneys […] not to convict, but to see that justice is done.”[10]

“The Government’s interest in veterans cases is that justice be done.”[11]

“The government’s interest in veteran cases is not that it shall win, but rather that justice shall be done, that all veterans so entitled receive benefits due to them.”[12] 

A JIV’s eligibility to participate in a VTC program is dependent on the consent of (1) the attorney representing the state, and (2) the court “in which the criminal case is pending.”[13] 

“[T]he consent [of the attorney representing the state] requirement is not merely procedural but implicates the trial court’s authority to preside over a particular type of proceeding.”[14] For example: a trial court has “no inherent authority to dismiss a charging instrument without the consent of the State.”[15] 

However, the trial court has limited authority to act without the consent of the State when “authorized by constitution, statute or common law.”[16]

“It is the manifest duty of the courts to vindicate [due process] guarantees.”[17] Restated, “it is within the Court’s power to insist that veterans be granted a level of due process that is commensurate with the adjudication procedures with which they are confronted.”[18][18a]

By whatever name -- problem-solving court, diversion court, or specialty court -- a veterans treatment court program is a benefit offered to justice-involved veterans.[19] The program provides “access to a continuum of alcohol, controlled substance, mental health, and other related treatment and rehabilitative services.”[20]

“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable government benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.”[21]

To have a protected liberty or property interest, “a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”[22] 

The answer to “when and how a person acquires an ‘interest in specific benefits’ which will trigger the due process clause” may be established by “long tradition in our nation” that “embrace[s] [the] assumption of a particular government [benefit].”[23]

The ”Due Process Clause specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.”[24] 

“Our Nation’s history, legal traditions, and practices thus provide the crucial guidepost for responsible decision-making, that direct and restrain our exposition of the Due Process Clause.”[25]

While “[t]he principle of entitlement was almost completely foreign to Americans of the late nineteenth century,”[27] “[o]ur Nation has a long tradition of according leniency to veterans in recognition of their service.”[28] 

“No thoughtful person questions the obligations which the nation is under to those who have done faithful service in its army or navy.”[29] 

“Throughout the legislative reports and debates leading to the birth of [the Veterans’ Preference Act of 1944] is evident a consistent desire to help [veterans].”[30] 

“Our country has a long-standing policy of compensating veterans for their contributions by providing them with numerous advantages. This policy has always been deemed to be legitimate.”[31] 

Clearly, government has an “interest in the welfare of its veterans.”[32]

Veterans are the entitled recipients of a long history of preference, benefits, and leniency. The very nature of the government function involved -- the veterans treatment court program -- requires more procedural protection than “delegate[ing] basic policy matters” to the attorney representing the state for resolution of a justice-involved veteran’s eligibility to participate in the veterans treatment court program “on an hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”[33] 

“By whatever name, our national interest in helping veterans “is valuable and must be seen within the protection of the Fourteenth Amendment.”[34]

George Porter, an honorably discharged combat veteran of the United States Army, 2nd Infantry Division, was wounded and decorated for his active participation in two major battles during the Korean War. A neuropsychologist later determined that his combat experience had left him traumatized and changed. After his discharge, he began drinking heavily, getting into fights, and ultimately, in 1986, he murdered his former girlfriend, Evelyn Williams, and her boyfriend Walter Burrows, for which crimes he was convicted and, in 1990, he was sentenced to death in Williams’ case.[35]

If Porter had committed his offenses in Texas after 2009, statutorily, he would NOT have been automatically excluded from participating in the Veterans Treatment Court (VTC) program just because of his arrest, charge, and conviction for two murders. See, Texas Government Code, § 124.002(a) ("… any offense") (emphasis added). Granted, the prosecutor has broad discretion in such cases, and it is most certain that no prosecutor in the State of Texas would consider allowing Porter to participate in a VTC program because of his offenses. Of course, this is an extreme example. Yet, it involves an issue of national and state importance: How should the criminal justice system treat justice-involved veterans given their service to our country? 

An interesting observation about Porter’s case is how the lower courts, state and federal, saw no harm in his attorney’s failure to present mitigating evidence at trial, see footnote 1, infra. Fortunately, the United States Supreme Court saw it differently. Unfortunately, in Texas, there is no formal record or review of the reason(s) for a prosecutor’s withholding of consent to a justice-involved veteran’s participation in a VTC program. It could simply be because the offense was murder, or domestic violence, or DWI, or whatever. Whether the offense was or could have been connected to the veteran's military service doesn’t matter at all; the reason for withholding consent is all the same: the offense. 

Such a policy (not law) of the state’s district attorney’s offices flies in the face of both the history of “specialty courts” and the Texas legislative intent of the VTC program. Surely, principles of justice and fairness dictate that justice-involved veterans deserve better treatment than that.