Texas courts have long held that the requirements of Tex. Code Crim. Proc. Art. 26.13 are only mandatory in felony pleas of guilty or nolo contendere. Art. 26.13(a)(4) states that prior to entering a plea of guilty or nolo contendere, a defendant must be admonished that if he:
[I]s not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.
In felony cases, it is statutorily required; no such statutory requirement is necessary in misdemeanor cases. See Johnson v. State, 614 S.W.2d 116, 120 n.1 (Tex. Crim. App.1981) (op. on reh’g)(as commendable as it may be for a trial judge to admonish [under Art. 26.13] a misdemeanor defendant…there is no requirement in Texas law for a trial court to admonish a defendant of anything if the offense is a misdemeanor). However, the admonishments required under Art. 26.13(a)(4) regarding the immigration consequences of a plea are often given in misdemeanor cases as a matter of routine.
See Meraz v. State, 950 S.W.2d 739 (Tex. App.-El Paso 1997, no pet.)(most judges follow the commendable practice of admonishing defendants in misdemeanor cases).
As a criminal defense attorney, I cannot simply read the admonishments of Art. 26.13(a)(4) and tell a misdemeanor defendant that he “may” be subject to adverse immigration consequences. While the admonishment “may” be correct, it “may” not be. I have a duty to at least investigate whether the misdemeanor defendant’s plea will result in removal (deportation), exclusion from the US, or would cause denial of naturalization under federal law.
The 6th Amendment to the US Constitution acts as a guarantee that the accused the right to the effective assistance of counsel. As the Padilla case shows us, incorrect advice regarding immigration is an affront to the Constitution. See id. However, Padilla offers no protections to the thousands of pro se defendants that appear in front of Texas courts each year. An important distinction must be made at this juncture: Padilla only dealt with the 6th Amendment right to effective assistance of counsel; its dictates have not been applied to federal due process or Texas due course of law provisions. Perhaps it is time for courts to do just that: protect due process.
The Texas Court of Criminal Appeals considered whether a misdemeanor defendant is entitled to Art. 26.13(a)(4) admonishments as a matter of right under federal due process and Texas due course of law safeguards. State v. Jimenez, 987 S.W.2d 886 (Tex. Crim. App. 1999) (en banc). The 8th Court of Appeals (El Paso), had held that although Art. 26.13(a)(4) was not statutorily required in misdemeanor cases, it was constitutionally required to comport with federal due process and Texas due course of law provisions; 1996 amendments to federal immigration laws made several classes of state misdemeanor cases as “deportable” offenses. Id. at 887-8. In reversing the court of appeals, the Texas Court of Criminal Appeals said there was no federal or state constitutional requirement to admonish misdemeanor defendants of immigration consequences because the issue of removability was a “collateral” matter. Id. at 888-9. Yet, misdemeanor courts continue to provide these admonishments although they are not required to do so. Id. As noted above, if I were to give the admonishment verbatim as found in Art. 26.13(a)(4), especially when the immigration consequences are clear, it would be ineffective assistance of counsel. When the court gives these admonishments to a pro se defendant, it is merely surplusage that is a collateral matter, even though the admonishment, as we will see, is often incorrect.
Padilla did call into question whether the distinction between collateral versus direct consequences is applicable in cases that result in removal. Although the Padilla case’s analysis was under the 6th Amendment, it should be no less applicable under the 5th Amendment or 14th Amendment. Certain misdemeanor offenses, such as possession of drugs/paraphernalia, are interpreted as being violations of the Federal Control Substances Act for immigration purposes. Like Padilla, a simple glance at the immigration laws would reveal that a plea of guilty or nolo contendere to this type of charge would make a non-US citizen removable. If the courts are making sure that this information is given to him by defense counsel, why do we allow fewer protections to those appearing pro se? A judge can check the immigration laws just as quickly as a defense attorney.
By permitting misdemeanor courts to allow pleas to be entered without admonishing pro se defendants that they will be suffering from certain immigration consequences (asopposed to “may” be deported, “may” be excluded from the US, or “may” be deniednaturalization) the courts are giving incorrect admonishments. This incorrectadmonishment is repeated on an almost daily basis across courtrooms in Texas,resulting in devastating results for non-citizen defendants. Just because the court isvoluntarily giving an admonishment should not relieve the court from getting it right. By requiring that judges give correct admonishments regarding immigration consequencesof a plea, especially from a pro se defendant, courts can rest assured that the plea trulymeets notions of due process. Or, as one classic country song pleads, “if you’re gonnado me wrong, do it right.” If You’re Gonna Do Me Wrong (Do It Right), Vern Gosden & Max Barnes (1983).