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Criminal or Civil? Difference Is Huge in Former Texas AG's Suit

By Jonathan R. Tung, Esq. on December 03, 2015 | Last updated on March 21, 2019

Usually there's no confusing about whether a matter is civil or criminal. But that wasn't the case in a recent Fifth Circuit opinion, released Monday. There, the Fifth Circuit ruled that Dan Morales' appeal to have two key documents disclosed is part of a civil appeal, not a criminal one notwithstanding the circumstances of the facts. That difference made his motion timely under the Federal Rules of Appellate Procedure.

For litigators who think they've heard that name before, Morales was Texas' Attorney General up until it was discovered that he was involved in a scheme to skim a profit from the "Big Tobacco" settlement that took place in the 90's. The number? $17.3 billion. And those are 90s dollars.

How the Mighty Have Fallen

Dan Morales, former Attorney General of Texas, was convicted of mail fraud and filing a false income tax return. During his criminal prosecution the district judge entered a protective order that covered many discovery materials produced by victims and third parties. More than a decade later, Morales moved to modify that protective order to permit some disclosure of those documents. The requested modification was part of a bid to recover litigation fees from his former lawyers in a qui tam suit.

The legal issue that the Fifth Circuit had to deal with was one of identity: how best to categorize Morale's motion? Criminal or Civil? Because the difference would determine whether its timeliness would be measured either by the Federal Rules of Appellate Procedure or Criminal Procedure.

Appellate Procedure vs. Criminal Procedure

In broad terms, the court found that the protective orders are generally tools utilized in civil courts and that modifications to such orders are rare in criminal cases. The circuit argued that courts have generally relied on civil doctrine to make modifications to orders and that this weighed heavily in favor of regarding the protective order as civil. This effectively made Morales' modification timely even though it came ten years later. Plus, the motion did not involve the movant's "liberty interests" which would typically make the appeal criminal.

Added to that, Morales had already served his time and his appeal had been separated enough from criminal proceedings to make it civil. Thus, there was no abuse of discretion at the level of the district court.

Procedural Pain

Courts are unfortunately faced with legal issues that probe the proper characterization of a wide variety of procedures in court. The present case makes clear that the substance and structure of a modification is, at least according to the Fifth Circuit, determinative of it being a civil of criminal appeal. And what a difference that made.

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