Flores v. State , 1995 Tex. Crim. App. LEXIS 80 ( 1995 )

CLINTON, Judge,

dissenting on Appellant’s Petition for Discretionary Review.

We granted review to decide whether the court of appeals correctly determined that although the trial court took into account appellant’s “linguistic abilities” in denying probation and thus “treated him differently as a result,” the requirement that appellant be “able to understand, participate in, and profit from, the only available and effective •program, was rational and not evidence of animosity toward [appellant’s] racial or ethnic group.” Flores v. State, 903 S.W.2d 769 (Tex.App.—Tyler 1993).¹

In my view, the trial judge diagnosed the situation in Smith County more pragmatically, viz:

“[TJhere are no provisions in this county to help Spanish speaking people who are convicted of alcohol offenses.”

“[T]he ... alcohol education program ... does have a Spanish class but it is worthless.”

“The alcohol treatment programs are simply not available in Spanish. I’ve been trying ever since I’ve been here to ... get this county to admit what century we’re in, but it has not happened.”

“If I put you on probation, that’s absolutely meaningless.”

Due process considerations aside, our own “equal protection” clause guarantees against denial or abridgment of equality under the law because of, inter alia, “national origin.” Article I, § 3a. Bill of Rights, V.A.T.C. The term embraces aspects of ethnicity of the nation of origin, including its language.

To reject probation for one who is otherwise eligible because the State through its local governing body has failed or refused to provide probationary programs for Spanish speaking people with “linguistic difficulties” is to deny or abridge equality of treatment under the law in violation Article I, § 3a.

The plurality summarily dismisses contentions in this regard advanced by appellant (as well as Amicus Curiae) under § 3a because he “fails to cite any authority or present any evidence that the authors of the Texas Constitution would have agreed with his position.” Opinion, at 131. Alas, the plurality overlooks that the “authors” declared the amendment “self-operative,” and its intendment is certainly self-evident.

Accordingly, I respectfully dissent.²

1 . All emphasis is mine throughout unless otherwise indicated.

2 . Actually, the issues presented in this cause are moot. Appellant has served the term of his confinement; there is no live controversy. All our opinions are advisory in nature, and this one is pursued solely because the plurality insists on addressing the ground for review.