(my apologies to Steve Earle)

Now that the New Braunfels City Council has passed its infamous container ban ordinance, many people are trying to find a way that they can get involved in the effort to repeal it. I received phone calls this week from some guys who are pretty plugged into the repeal effort and who could use your help.

First, I spoke with Shane Wolf. Shane is a part of the effort to collect signatures for a petition to put a referendum on the November ballot which would allow voters to repeal the ordinance. When I spoke to him, the folks he is was working with were getting their proverbial ducks in a row to start referendum petitions circulating. They were also working feverishly to get info up on their Facebook page about where people could sign petitions, as well as volunteer for the petition drive. These folks are darting around like a bunch of rabid ferrets in heat, not only because they are upset about the ordinance, but also because they face a huge time crunch. In order to get a referendum placed on the November ballot, they must collect and file approximately 2000 valid signatures by Wednesday of next week. In other words, this is EPIC. If they pull it off, their effort will go down in history as the Mother of All New Braunfels Petition Drives. Shane said that if you want to sign a referendum petition, or pitch in, go to his group’s Facebook page entitled “Sign the Referendum to Recall the New Braunfels Container Ban Ordinance.”

Later that same day, I got a call from Ben O’Neil, who runs Corner Tubes. Ben is frustrated with the City Council because he sees the anti-littering rhetoric as a ruse for an alcohol ban. His told me how his staff at Corner Tubes has put in many long hours over the summer performing their own river clean-ups. Ben feels that if trash cleanup was the real motive behind the ordinance, then the City would have enlisted the outfitters as allies a long time ago. Ben is also skeptical that a petition drive alone will be enough to both kill the ordinance and bring sanity to river use rules. He emphasized that the real key is to make sure that people who love tubing and the rivers get out to the polls on election day. He told me he wants to build a voter registration campaign to encourage young people and new residents to casts ballots against the ordinance, as well as to participate in council elections. You can contact Corner Tubes, and Ben, at (830) 626-6687 or at cornertubes.com.

Guys, this ordinance won’t repeal itself. It’s time to get your butts out of your tubes and get into the fray. If you live within the city limits of New Braunfels, and aren’t registered to vote, contact the Comal County Elections Office and get registered. If you are registered, sign a repeal petition. If you don’t live in New Braunfels, but still care about tubing and the the rivers, you can still donate your time and your voice. Go volunteer. Go show these guys some love on your own blogs, Facebook pages, and websites so that the word gets spread. And, as always, Tube Free or Die…

Why do you hate New Braunfels? I don’t ask this question to be smart-alecky or sarcastic. As I watch the latest tourism-related debate unfold, this time over a proposed disposable container ban on the Comal and Guadalupe Rivers, I get the sense that there is something more fundamental going on. New Braunfels is a unique place, and the impression I get is that there something about its very uniqueness that makes you feel genuinely frightened and uncomfortable.

I won’t spend a whole lot of time here debating the proposed ban. Many others have already laid out the arguments against it. The proposal is a pretty transparent attempt to regulate the consumption of alcohol on the rivers. Your own comments during the last council meeting indicate that banning alcohol is the proposal’s real purpose. And if you think for a moment that a court cannot see that, then you either underestimate the intelligence of state district judges or you reside in an alternate Alice-in Wonderland universe. The Council, of course, has tried to ban alcohol on the rivers before, only to be rebuffed by the legal system, because the regulation of alcohol consumption is the sole job of the Texas Alcoholic Beverage Commission under Texas law. I am sure you don’t care that the Texas Alcoholic Beverage Code already gives regulatory authority over alcoholic beverage containers to the TABC and that this proposal faces some of the same preemption problems that your previous alcohol ban had. Just as I’m sure that you could care less that the proposed ordinance is possibly unconstitutionally vague and overbroad (Is sunscreen included? Insulin?). Nor do you apparently have any sympathy for the poor cops who will be charged with enforcing yet another unenforceable ordinance. You feel as if you have to do something radical, and you’re probably going to try.

But the real question is: Why? I have been practicing criminal law in New Braunfels for approximately twenty years, the first five as a prosecutor. I am here to tell you that tourists (and locals) getting arrested during the summer on one of the rivers is not a new thing. It has been happening as long as I have practiced law here. I’d wager that if you asked anybody who lives in a tourist town whether a tourist getting arrested is a remarkable event, they would tell you that it isn’t. Now, this summer, the example that that anti-tourist crowd likes to brandish in order to show that there is a “crisis” is the assault on a peace officer that happened a few weeks ago. Again, as someone that has worked in the local criminal justice system for almost my entire adult life, I’m sad to report that this officer, unfortunately, will probably not be the only one injured in the line of duty in Comal County this year, and not all of the cops injured will be working on the river. For better or worse, those other cops don’t make the local television news. One bad incident, though, does not a “crisis” make.

Yet you imagine, or claim, that there is suddenly a “crisis.” Really, it isn’t all that sudden, if you think about it. This seems to be a “crisis” with no end. Over several years, in fact, you have passed numerous ordinances to combat it (the cooler ordinance, the boom box rule, the jello shot ban, etc.). All of these are in addition to a “zero-tolerance” policy practiced by the New Braunfels Police Department now for many tourist seasons.

So I have ask you: How’s that working for you? After years of new ordinances and scores of arrests and citations, how’s it working? You would expect that, by now, the Comal and Guadalupe Rivers would be seas of tranquility after all of this cracking down. Instead, this summer, we have been treated to the local newspaper running a hysterical headline warning about “The River Wild,” the local police chief jumping in front of news cameras to pronounce that the rivers are out-of-control, the first-time spectacle of the mayor shutting down the Comal River to tubing during the middle of a busy weekend, and now, the latest anti-rowdy tuber proposal. This is a “crisis” of your own creation. And, by your own assessment, your policies have been a failure.

I suspect, though, that the Council would not consider anything short of ending tubing on the Comal River to be a success. Deep down, you hate tubing on the Comal River, as well as the tourists who do it. It, and they, make you uncomfortable.

A unique town, which experiences a great deal of growth from the outside in a short amount of time, often experiences a tug-of-war for its identity. At the risk of digressing too much, let me use New Orleans as a point of reference. I’m a frequent visitor, and since Katrina, I’ve had a chance to meet a few people who used to live there. New Orleans is as funky and touristy as all get out. Its uniqueness is what drew many people to live there in the first place. It has its share of tourist problems, and almost everyone I’ve ever known who lived in New Orleans complained about the excesses of the tourists. But if you ask a New Orleans native if he wants to radically change the place, he’d most likely tell you “no” (with the exception of building some decent levees). As one New Orleans local once explained to me, New Orleans is the kind of place that changes you, you don’t change it.

When I first began my career in New Braunfels, New Braunfels was the kind of place that people moved to because it was different. Newcomers were drawn to New Braunfels precisely because it was a quirky tourist town. People did not move here to remake New Braunfels in their own image. People often moved to New Braunfels to remake themselves.

Over the past decade, a flood of people have moved to New Braunfels for quite different reasons: for a big house in the ‘burbs, for the schools, to retire near the Hill Country, to be located along the I-35 Corridor. These folks didn’t come here looking to change their lives all that much, though. If anything, they want New Braunfels to resemble something very close to the places from which they came. They don’t want to tolerate things, or people, that are outside their comfort zone. To them, a jam-packed river on a summer afternoon is not a sign of living in a vibrant place to which outsiders want to flock. It’s an eyesore. It’s a nuisance. It’s a place to crack down. They want to live in Pleasantville.

So here we are at the next round of the New Braunfels version of the culture wars. On one side are people like me, who would like to preserve the things that make New Braunfels unique, even if it means putting up with the problems that come with it. On the other side are people who would be content to see New Braunfels become just one more of the many plain vanilla suburbs strung between San Antonio and Austin.

I, along with many others, sense you are approaching a point of no return. I would ask you to think long and hard before taking the next step. This tourist season is almost over, and there is no need to rush into a decision that will long be regretted. No reasons other than panic and fear.

Before you make your decision, keep in mind that it won’t just affect some abstract group called “rowdy tubers.” The tubers can always go somewhere else, and one day, they will. Your decision also affects very real people who either live or work in New Braunfels. I know it’s fashionable, of late, to demonize those evil, greedy, exploiting river outfitters. Personally, I don’t think you’ll find that the guys down at Texas Tubes, or Corner Tubes, are all that bad if you get to know them. In fact, they ought to be your natural allies. They have just as much invested in keeping the rivers safe and clean as anyone else. I know that “compromise” has recently become a four-letter word in our politics, but would bringing everyone to the table really be that awful? Would talking to the other side really make you that uncomfortable? I would also have you keep in mind the people that hardly ever get mentioned — the legion of people in your fair city who work minimum-wage jobs — the convenience store clerks, the restaurant waitstaff, the hotels maids, all of whom depend on tourist dollars to feed their families.

You risk losing more than dollars and cents, however. You risk killing the character of New Braunfels. Trying to transform New Braunfels into Plano-on-the-Comal hasn’t worked too well, so far. Why don’t you try something new, instead? Why don’t you just let New Braunfels try to change you? I promise the makeover won’t be too uncomfortable or scary.

Shortly before the Memorial Day Weekend, the Comal County District Attorney’s Office announced that all of Comal County would have a “no refusal” policy for Driving While Intoxicated cases for the entire Summer.  This policy was touted as a powerful tool for law enforcement in its efforts to combat drunk driving.  Ironically, though, it will probably result in fewer DWI cases being filed in Comal County.

A “no refusal” policy means that a person arrested for DWI cannot refuse blood alcohol testing.  If a person, after a DWI arrest, is offered a breath or blood test, and refuses, then law enforcement obtains a search warrant allowing an involuntary blood draw for alcohol testing.

At first glance, this policy seems as if it would make it easier to prosecute DWI cases.  In practice, it will result in fewer people actually charged in court with DWI, for two reasons.

First, all DWI cases will now have a blood alcohol level number attached to them. Gone will be the days when a case is filed simply on the basis of an officer’s subjective observations of someone out on the road.  Instead, almost everyone arrested will have a blood test result, and some of these folks will invariably wind up being under the legal limit of .08. at the time they are tested.  Because obtaining a warrant for a blood draw, as well as obtaining the actual blood sample itself, can be time consuming, people arrested who are “borderline” cases will have a period of time in which their blood alcohol levels are dropping, that is, between the time of the arrest and the time of the blood draw.  As a result, someone who may have been intoxicated out on the road may have a blood test result below the legal limit by the time his blood is drawn by a certified nurse or lab tech.  This puts the State in the unenviable position of having to explain away the results of its own blood testing in court.  If someone has a test below the legal limit, it’s just easier not to file a DWI case at all.

Second, cops are human, and they like to proven right.  No one wants to get a reputation as the cop who repeatedly arrests guys for DWI, and then, is repeatedly proven wrong by blood tests.  This is not to say that cops will start putting people they suspect are intoxicated back on the road, but the number of people arrested who wind up getting formally charged with DWI, as opposed to some other, less serious, charge, is likely to go down.

In short, rather than producing more DWI convictions, Comal County’s “no refusal” program will probably mean less.

TEN MORE COMMANDMENTS FOR NOT GETTING ARRESTED ON THE COMAL AND GUADALUPE RIVERS DURING MEMORIAL DAY WEEKEND
(INCLUDING THREE THINGS YOU SHOULD NEVER SAY TO A NEW BRAUNFELS, TEXAS COP)

Last May, we posted our now infamous “Ten Commandments for Not Getting Arrested on the Comal and Guadalupe Rivers During Memorial Day Weekend”. Due to the popularity of that post, we now, naturally, present THE SEQUEL. There are, of course, far more than ten ways to get arrested on the rivers, so we now give you ten more commandments for not getting arrested on or around the rivers this Memorial Day Weekend:

1. DO LISTEN TO THE GUYS IN TACKY YELLOW T-SHIRTS THAT SAY “POLICE”.
On and along the Comal River, some New Braunfels Police officers now wear shorts and yellow T-shirts with the word “POLICE” printed on them. Yet, invariably, every year we wind up representing at least one person in an Evading Detention case who refused to obey one of these officers, because (the client will claim) he didn’t know that the guy yelling at him to come over to the river bank was a real cop (because, as well all know, real cops don’t wear T-shirts). They may not be the fashion police, but they are the real police. When they order you out of the river, come to shore.

2. DON’T DROP YOUR DRINK IN THE RIVER.
As you might imagine, there are quite a few citations for Minor in Possession of Alcoholic Beverage issued every Summer on the rivers. And quite a few people have gotten the bright idea to drop their drink into the drink, as it were, when called to shore by the cops. What they don’t realize is that they are likely to get a citation for Littering on the river, which in New Braunfels, actually carries a much higher potential fine than MIP.

3. JUST BECAUSE ITS FLOATING BY OR SINKING DOESN’T MEAN IT BELONGS TO YOU.
It’s common for people on the rivers to flip a tube or raft going over a rapid, often dumping their possessions in the river along with themselves. It’s also become more common for thieves to hang out by the rapids waiting for people to flip their tubes. Once the person’s possessions go into the river, the thieves scoop up the items before the submerged person can surface. So many complaints have been lodged in recent years that local law enforcement has taken to stationing undercover cops, posing as tourists, at some rapids, and have made arrests for Theft. Don’t get caught being a Comali River Pirate.

4. GET A FRONT LICENSE PLATE FOR YOUR CAR
Many tourists from Houston use State Highway 46 as a route to and from New Braunfels once they leave IH 10. Realizing this, law enforcement has made a Summer cottage industry out of stopping out-of-area motorists for minor traffic violations along SH 46. A traffic detention also provides a cop with an excuse to scope out the interior of your car for illegal items, ask you how much you had to drink on the river, etc. By far the most common such reason for a traffic stop on SH 46 (other than Speeding) is No Front License Plate. A front license plate is much cheaper than bonding out of jail for some unrelated offense. Get one.

5. DON’T PARK ILLEGALLY
At first glance, it’s not obvious what this has to do with the rivers. Last year, the anti-tourist faction of the New Braunfels City Council made it illegal to park in many neighborhoods surrounding the Comal River without having a city-issued parking permit. If you are coming from out-of-town to float the Comal, you ain’t gettin’ one. Needless to say, this has made parking around the Comal River a major hassle. If you park illegally while on the river, you are not only giving the local cops an excuse to write you ticket, but also drawing police attention to your car, including the contents of its interior. Most outfitters have private lots where you can park, as well as parking shuttles. Call your outfitter ahead of time for parking info.

6. DON’T JUMP INTO THE RIVERS FROM BRIDGES OR CLIFFS
First off, it’s dangerous. Almost every year, someone gets either seriously injured or killed jumping from a bridge or a cliff into one of the rivers. Secondly, it’s illegal. All bridges crossing the Comal River belong to the City of New Braunfels, and jumping from them is a violation of city ordinance. Most cliffs on the Guadalupe River, such as Preiss Heights Cliff, are on private land. Trying to jump from one is likely to get you busted for Criminal Trespass.

7. DON’T LIE ABOUT YOUR IDENTITY OR AGE
As noted, every Summer many of America’s Youth (who are our future) get citations on the rivers for Minor in Possession of Alcohol. And every Summer, many of these same young people with bright, promising futures, attempt to talk their way out of the citation by lying about their name or age. Lying about your identity to a cop who has lawfully detained you is a BFD under Texas law, and in some circumstances can carry a potential jail sentence or probation. Having an arrest record for a jail-time type offense that involves lying can also be a BFD when you go job hunting a few years down the road. Just. Not. Worth. It.

8. DON’T CLAIM OWNERSHIP OR CONTROL OF ANYTHING THAT DOES NOT BELONG TO YOU.
As I have mentioned elsewhere on this blog, I know that chivalry is not dead. I know this because every Summer I meet a nice young man who, when his group was confronted by a copy at the river or a campsite, claimed possession of some illegal item (i.e., marijuana, a handgun) that did not belong to him. He did so because he wanted to prevent his girlfriend or best buddy from going to jail. Ironically, however, in almost every instance, by the time the case goes to court, the girlfriend is now an ex-girlfriend and the buddy is now an ex-buddy and Mr. Gallant is left holding the baggy.

9. MAKE LOVE, NOT WAR, BUT MAKE SURE TO GET A ROOM
Almost every Summer I have the pleasure of meeting at least one young couple, very much in love, whose vacation passion found expression in the cab of a pickup truck, on a riverbank, in a tent that didn’t have the flap closed, a hotel swimming pool, etc., and who are now charged with Public Lewdness. Even in the wee hours of the morning, the areas around the rivers are still crawling with other tourists, as well as cops or private security. You are not as alone as you think.

10. NEVER, EVER, SAY ANY OF THE FOLLOWING THREE THINGS TO A NEW BRAUNFELS COP:

(1) “I’m from Houston.”
(2) “I’m from Dallas.”
(3) “I just floated the Comal River.”

Have a fun (and safe) Memorial Day Weekend. And if you have too much fun, always remember what we say at our office: “A reasonable doubt for a reasonable fee.” Let the Summer Games begin….

If you are in the military, can you deploy overseas while on probation for a misdemeanor case?  The answer:  yes, but it’s not automatic.

Over the past year, we have represented several clients in the reserves who have been called up to deploy to Afghanistan.  The biggest concern for each one was whether or not they would be allowed to deploy with their unit overseas if they were on probation.  In a few cases we just concluded, we were able to accomplish just this.

Contrary to popular belief, deployment while on probation is possible.  If you are on probation, one of the common conditions of the probation is that you remain in your county of residence.  However, most jurisdictions will allow you to travel for work, etc., if the probation department issues you a travel permit in order to do so.  In some recent cases that we have handled in Comal, Guadalupe and Hays Counties (all Driving While Intoxicated cases), our clients (two in the Army, one in the Marines) were able to get plea bargain agreements that would allow them to have travel permits to deploy to Afghanistan while on probation.

The first caveat, though, is that all of the counties involved, before offering such a plea bargain, wanted the client’s commanding officer to verify that the CO would also permit the client to deploy while on probation.  All of the counties involved also wanted the clients to get their probation stuff completed (fines, community service, classes) before they left.   If you are in the military and facing a misdemeanor probation, it’s a good idea to get your CO involved in the process as early as possible so that you know what you can and cannot agree to, as well as how any deal you strike will affect your ability to deploy in the future.

As I’ve previously reported, the status of the weekend jail program in Comal County has been up in the air for several months due to jail overcrowding. Because of a lack of bed space at the jail, the Comal County Jail has periodically suspended its weekend reporting program. As of now, the program is suspended, and neither of the Comal County courts-at-law are permitting weekend jail as part of a plea bargain agreement. If you receive a misdemeanor jail sentence in the near future, you have two options: (1) serve the time straight, or (2) do house arrest with an electronic monitor. Unfortunately, you can only participate in the house arrest program if you have a minimum sentence of 30 days, live in Comal County, own a land line so that a monitor can be installed and have the funds to pay the probation department fees associated with the program. A few days ago, Guadalupe and Comal counties announced an agreement by which the Guadalupe County Jail would begin accepting some Comal County prisoners. it’s still unclear whether or not this will make a significant dent in Comal County’s jail overcrowding problem, given that we have still not hit Summer, which is the busiest season of the year for the local lockup. On the other hand, the renovation of the Comal County Courthouse appears on schedule. Maybe the Commissioners’ Court can start housing inmates there.

One of our clients got some justice today:

The Guadalupe County District Attorney’s Office has dismissed its Aggravated Assault case against Ernesto Garcia, one of four former Texas Lutheran University football players accused of assaulting a Incarnate Word University football player, Ty Warnasch, at an off-campus Halloween Party in Seguin, Texas, in October of 2009.

Ernesto Garcia’s cases was dismissed, on a motion by the State, due to insufficient evidence, at a pretrial hearing held on March 9, 2011. Jury selection had been scheduled to begin in Ernesto’s case on March 14th.

Following an arrest by the Seguin Police Department in December of 2009 for Aggravated Assault, which was widely reported by local media in the San Antonio area, Ernesto entered a plea of “not guilty” and maintained his innocence throughout the subsequent proceedings.

While the case was pending, Ernesto went on to complete his education at TLU, graduating with a bachelor’s degree in December of 2010.

Although we don’t think a charge should have ever been filed at all, we are grateful to the District Attorney’s Office for recognizing that this charge needed to be dismissed. I am glad that the justice system worked for Ernesto. I am happy that this young man will be able to get on with his life.

Of the other three co-defendants, all originally charged with Aggravated Assault, two have plead to misdemeanor Assault charges, and one other, still facing an Aggravated Assault charge, is scheduled for a jury trial later this year.

(or, “How the Local Judiciary is Currently Protecting the Purity of Our Precious Bodily Fluids”)

Today, in Comal County Court-at-Law No. 1, I watched someone go from a plain vanilla deferred adjudication for a Possession of Marijuana charge to ten days in jail in the space of less than three hours. I thought to myself that maybe it’s time for an update about the way in which the county courts-at-law in Comal County are handling plea bargains for Possession of Marijuana cases.

A while back, this blog reported that both Judge Randy Gray and Judge Charles Stephens were handling marijuana plea bargains in much the same way. At the time of the entry of a “guilty” or “no contest” plea, a defendant was typically grilled about whether or not he would test dirty for marijuana on a urinalysis. If the defendant responded “yes,” then the plea bargain was typically busted and the parties went back to square one in negotiations. If a defendant responded “no,” but then later that day tested positive on a drug test, then the defendant was punished with ten days in jail as a special condition of any probation.

The good news is that neither of the judges are still busting plea bargains left-and-right. Each judge now has a different method of handling the entry of a plea. The bad news is that a defendant can still quickly end up wearing one of the Sheriff’s orange jumpsuits.

In Judge Gray’s court, if a person is up at the bench and thinks he might test positive on a drug test, the judge will allow him to reschedule his case for a couple of weeks before making the plea bargain final. The bad news in Judge Gray’s court is that if the defendant shows up at the later court date and tests positive for marijuana, he is still looking at ten days in jail.

In Judge Stephens’s court, if a defendant tells the judge that he will test positive for marijuana, the judge will normally approve the plea bargain, but will require the defendant to do more frequent drug testing as a condition of probation in order to make sure that the level of THC in the his system is going down. However, if the defendant tells the court that he will test clean, but then doesn’t, it back to ten days in the county jail.

If I were a defendant about to enter a plea in a marijuana case in front of one of these judges, I think I would stop at a pharmacy on the way to the court, buy a do-it-yourself drug test, and try it out in a courthouse men’s room before ever saying a word on the record. And no, CVS and Walgreen’s did not pay me to say that.

If you get a jail sentence in Comal County, you might not have to worry anymore about starting a fight with other inmates over what TV show to watch in the jail rec room. Now you might be able to serve your jail sentence in your own private rec room, with a remote.

A while back, this blog reported that the Comal County Jail was becoming overcrowded to the point that the jail was sometimes turning away defendants who had been order to report for weekend jail sentences. One of the ways that the county courts-at-law have responded is by starting he county’s first house arrest program for adults. If you are ordered to serve a jail sentence for a misdemeanor, the court may, if you make a request, order you to do your “jail” time at home.

If you are in the program, you are given curfew times, during which you must be in your house. You are required to wear a GPS ankle monitor that transmits signals concerning your location to a private security company, which contracts with the County to provide the service. If you leave your house, or tamper with the monitor, during curfew hours, then local law enforcement is notified of the violation so that you may be arrested. In addition, a friendly guy from the local probation department reserves the right to pop over to your house and check on you unannounced in order to make sure that you have not tampered with the monitor and to make sure that you aren’t doing anything illegal in your home while under house arrest.

If a person wants to participate in the program, he is screened by the local probation department and a recommendation is made to the court. There is no set of carved-in-stone rules that establish who does and does not qualify for the program. Generally, though, the probation department is looking for people with a non-violent, non-DWI offense, a relatively clean record, and no history of absconding. In order for the monitor to work, you must have a telephone land line set up at your house. You must also pay to be in the program; the current cost is $6 a day.

On the down side, you won’t have an opportunity to get a jail tattoo, join a gang (unless they want to meet at your place), or get time carved off your sentence for good behavior. But it is a good excuse to get DirectTV and work your way through you NetFlix queue.