unrestricted requirement in Texas

2013But “if there is a waiver in all cases where some item of personal property is either used or not used, there is virtually an unrestricted waiver of immunity.” Id. at 586 (quoting Lowe, 540 S.W.2d at 302 ).

2010If such a complaint were enough to constitute the use of tangible personal property under the Act, the doctrine of sovereign immunity would be rendered a nullity.") (citing Lowe , 540 S.W.2d at 302 (Greenhill, C.J., concurring) ("It is difficult to imagine a tort case which does not involve the use, or nonuse, of some item of real or personal property; and to me, if there is a waiver in all cases where some item of personal property is either used or not used, there is virtually an unrestricted waiver of immunity.")).

2026See Navarro, 2021 WL 1988256 , at *2 (citing Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009)); see also Smith, 286 S.W.3d at 338-39 (holding that a defendant must establish reasonable grounds that he could be entitled to relief before he is entitled to a hearing on a motion for new trial because an unrestricted requirement of a hearing on matters not determinable from the record could lead to fishing expeditions).

2024Id. at 341 ; Strickland, 466 U.S. at 687 . “[R]ecogniz[ing] that an unrestricted requirement of a hearing on matters not determinable from the record could lead to ‘fishing expeditions,’” the Court of –10– Criminal Appeals has also held that even a defendant who has raised such matters is not entitled to a hearing on his motion for new trial unless he “establishes the existence of ‘reasonable grounds’ showing that the defendant ‘could be entitled to relief.’” Smith, 286 S.W.3d at 339 (quoting Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim.

2024Id. at 341 ; Strickland, 466 U.S. at 687 . “[R]ecogniz[ing] that an unrestricted requirement of a hearing on matters not determinable from the record could lead to ‘fishing expeditions,’” the Court of –10– Criminal Appeals has also held that even a defendant who has raised such matters is not entitled to a hearing on his motion for new trial unless he “establishes the existence of ‘reasonable grounds’ showing that the defendant ‘could be entitled to relief.’” Smith, 286 S.W.3d at 339 (quoting Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim.

2018To hold otherwise would deny the accused meaningful appellate review.” Reyes, 849 S.W.2d at 816 . “[R]ecogniz[ing] that an unrestricted requirement of a hearing on matters not determinable from the record could lead to ‘fishing expeditions,’” the court of criminal appeals has also held that even a defendant who has raised such matters is not entitled to a hearing on his motion for new trial unless he “establishes the existence of ‘reasonable grounds’ showing that the defendant ‘could be entitled to relief.’” Id.

2023In such circumstances, because an unrestricted requirement of a hearing on matters not determinable from the record could lead to “fishing expeditions,” the court of criminal appeals has repeatedly stated that, “‘as a prerequisite to obtaining a hearing,’ and ‘as a matter of pleading,’ motions for new trial must be supported by an affidavit of either the accused or someone else specifically showing the truth of the grounds of attack.” Id. (quoting McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim.

2009To hold otherwise would deny the accused meaningful appellate review.” 14 “[R]ecogniz[ing] that an unrestricted requirement of a hearing on matters not determinable from the record could lead to ‘fishing expeditions,’” we have also held that even a defendant who has raised such matters is not entitled to a hearing on his motion for new trial unless he “establishes the existence of ‘reasonable grounds’ showing that the defendant ‘could be entitled to relief.’” 15 Thus we require, as a prerequisite to a hearing when the grounds in the motion are based on matters not already in the record, that t

1993Azar Nut Co. v. Caille, 734 S.W.2d 667, 669 (Tex.1987).

1993Azar Nut Co. v. Caille, 734 S.W.2d 667, 669 (Tex.1987).

2026See Navarro, 2021 WL 1988256 , at *2 (citing Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009)); see also Smith, 286 S.W.3d at 338-39 (holding that a defendant must establish reasonable grounds that he could be entitled to relief before he is entitled to a hearing on a motion for new trial because an unrestricted requirement of a hearing on matters not determinable from the record could lead to fishing expeditions).

2023In such circumstances, because an unrestricted requirement of a hearing on matters not determinable from the record could lead to “fishing expeditions,” the court of criminal appeals has repeatedly stated that, “‘as a prerequisite to obtaining a hearing,’ and ‘as a matter of pleading,’ motions for new trial must be supported by an affidavit of either the accused or someone else specifically showing the truth of the grounds of attack.” Id. (quoting McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim.

2013But “if there is a waiver in all cases where some item of personal property is either used or not used, there is virtually an unrestricted waiver of immunity.” Id. at 586 (quoting Lowe, 540 S.W.2d at 302 ).

2001Kenville State Hosp. v. Clark, 923 S.W.2d 582, 586 (Tex.1996).

2009Of course, the factual basis could, as here, be incorporated by reference into the affidavit from the body of the motion. 26 Id. 27 Wallace v. State, 106 S.W.3d 103, 108 (Tex. Crim.