David Gonzalez

David Gonzalez is a founding partner in Sumpter & Gonzalez, LLP, in Austin. He is certified in criminal law by the Texas Board of Legal Specialization. David has represented the Texas Criminal Defense Lawyers Association at the Texas Capitol for the past four sessions.

Twenty-Five Criminal Law Changes You Will Need to Know Starting September 1, 2019

The 86th Legislature adjourned sine die on May 27th, 2019. Since the Governor, Lieutenant Governor, and Speaker of the House have indicated the Legislature passed every “critical” bill during the regular session, it is not anticipated Governor Abbott will call a special session. Although the primary focus of the 86th Legislature was school finance and property tax reform, legislators found time to pass a number of criminal justice reforms.

In the area of criminal justice, numerous bills related to human trafficking were filed. The Legislature increased penalties and created some new offenses under the guise of fighting trafficking. A bill giving the Attorney General concurrent jurisdiction with local District Attorneys on trafficking cases did not pass. Numerous attempts to change the Texas Rules of Evidence on sexual assault and trafficking cases failed.

While there were many more bills altering the Penal Code and Code of Criminal Procedure, the following 25 bills are the ones most likely to have an effect on the day-to-day practice of criminal law beginning September 1, 2019:

1.   SB 2136: Expands the “nature of the relationship” evidence by the defense. This amendment to CCP Article 38.471, which formerly applied to just cases of domestic violence, now applies to all offenses and still applies to both parties. In cases where a defendant is arrested for actions in response to something that happened earlier (but often precluded from admitting this evidence), this statutory change allows for the types of defenses where the nature of the relationship is critical to understanding what prompted the behavior. A good example of this would be a battered woman’s defense in a murder prosecution. The statute broadly states that “each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.”

2.   SB 346: Changes the allocation of court cost revenue to fund indigent defense. Less of the money paid by defendants will go to breath alcohol testing, law enforcement management, and retirement, Texas Commission on Law Enforcement, and crime victims’ compensation, leaving approximately 20% of all court cost revenue going to the fair defense account.

3.   HB 2048: Repeals the Driver Responsibility Program. This bill eliminates the DRP as of 9/1/2019, meaning any unpaid surcharges on the effective date will no longer be an obligation, and every driver with a suspension on the effective date will have it lifted. It is estimated a million Texas drivers will have surcharge suspensions lifted on their license then, and no reinstatement fee will be required to be paid by the driver. As written, the bill provides for what is basically a new “fine” for DWI-type convictions on or after September 1; however, no insurance tickets and DWLI are included in this new “fine.” There is no provision for a driver’s license suspension going forward in any circumstance, and the bill provides for an indigency determination to be made by the sentencing judge. There are obvious questions regarding the constitutionality as well as the application and collection of this new “fine” structure.

4.   HB 1279: Clarifies and corrects the references to the effect of parole in jury charges. The current charge is factually incorrect in that it indicates a sentence may be reduced by parole—as opposed to the bill correctly stating that the term of imprisonment may be reduced. This bill eliminates all references to good conduct time.

5.   HB 3106: Sexual Assault “investigations” must be entered into the Violent Criminal Apprehension FBI database, listing the suspect’s name, DOB, specific offense, description of manner in which committed, and any other information required by the FBI for inclusion.

6.   HB 1399: Mandatory DNA sample from defendants now applies post-arrest instead of post-indictment.

7.   HB 8: Starting in 2021, DNA evidence from sexual assault cases must be analyzed in 90 days.

8.   HB 8: The Statute of Limitations is eliminated for sexual assault cases where biological matter is collected and the material has not yet been subject to forensic testing or where there is no DNA match.

9.   HB 2758: Indecency with a child by exposure to a child under 14 is added to the list of offenses for which the defendant is not eligible for probation from a judge or a jury. (Indecency by contact was previously on this list.) Human trafficking, continuous human trafficking, aggravated promotion of prostitution, and compelling prostitution are added to this list and are not eligible for deferred adjudication.

10.  HB 1343: This bill requires an attorney for the State to file an application for a protective order on certain offenses following conviction or placement on deferred adjudication, unless one has already been filed by the alleged victim.

11.  HB 1325: Establishes the Hemp Farming Act to regulate the commercial production of hemp and clarifies the Legislature’s intent that the state have primary regulatory authority over the production of hemp and hemp products in Texas. Any promulgated rules regarding cultivation of hemp must comply with federal law. Hemp is defined as follows: the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis (Title 5, Agriculture Code, Chapter 121, Section 121.001). Section 481.002 of the Health and Safety Code now states hemp or the THC in hemp is not included under the Section (5) definition of a controlled substance, and Section (26) excludes hemp from the definition of marihuana. This bill is effective as of June 10, 2019.

12.  HB 1342: Eliminates the blanket prohibition on professional licenses due to a past criminal conviction. This bill removes as grounds for disqualification for a professional license a conviction within the past 5 years for an offense not directly related to the licensed occupation. The intent of the legislation is to enhance opportunities for a person to obtain gainful employment following conviction and discharge of the sentence.

13.  HB 1631: Prohibits the use of red light cameras of Texas. This bill is effective as of June 2, 2019.

14.  SB 21: Raises the age to purchase tobacco to 21 except for military personnel. Everyone under 30 must show ID for purchase.

15.  HB 3582: For the last 16 years, the Legislature has been considering a bill to allow Deferred Adjudication for DWI cases. The 86th Legislature passed a version that operates as follows: Deferred is available only for first-time offenders with a BAC of under .15, and this may be non-disclosed upon receiving a discharge and dismissal. For enhancement purposes, a DWI deferred is treated like a conviction similar to assault–family violence cases. The bill provides an ignition interlock device is required on DWI deferred unless the judge waives it following an alcohol/controlled substance evaluation. In comparing HB 3582 and HB 2048 (#3 above), HB 2048 assesses the new “fine” against individuals who have been finally convicted of a DWI offense, which is arguably not the case for a person who opts for a deferred adjudication under HB 3582.

16.  HB 1760: Lowers the age regarding the right to seal records to age 17 (or after one year has elapsed from final discharge) in juvenile cases.

17.  SB 194: A new offense of indecent assault has been created, carrying Class A misdemeanor punishment. Legislative intent is unwanted groping of someone 17 years and older cannot be adequately addressed with the maximum penalty of a Class C misdemeanor. Bill includes language “without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person.” This bill is effective January 1, 2020.

18.  HB 2789: Another new offense creates a Class C misdemeanor when one unlawfully transmits sexually explicit visual material, which is described as “any person engaging in sexual conduct or with the person’s intimate parts exposed; or covered genitals of a male person that are in a discernibly turgid state and not sent at the request of or with the express consent of the recipient.”

19.  SB 20: Creates the new offense of Online Promotion of Prostitution. The penalty is a 3rd-degree felony but can be a 2nd upon prior conviction under this section or if conduct involves a person under the age of 18.

20.  SB 20: Creates the new offense of Aggravated Online Promotion of Prostitution. The penalty is a 2nd-degree felony but can be a 1st upon prior conviction under this section or if conduct involves a person under the age of 18. “Aggravated” in this context refers to the intent to promote the prostitution of five or more persons or facilitating five or more persons to engage in prostitution.

21.  SB 719: Adds Section (9) to Penal Code Section 19.03 and makes it a capital offense to murder an individual 10 years of age or older but younger than 15. However, the death penalty may not be assessed upon conviction.

22.  HB 37: Creates a Mail Theft statute in Penal code section 31.20. A “porch pirate” amendment was added to this bill on the House floor, which states the person appropriates mail from a mailbox or a premises. Note: Consider 18 U.S.C Section 1708 for preemption strategy.

23.  HB 98: This bill is an attempt to rewrite Penal Code Section 21.16(b), which is commonly known as the “revenge porn” statute. The 12th Court of Appeals struck down this law, and it is pending at the CCA. The new language specifies a person commits a civil or criminal offense if, without consent, an individual intentionally discloses intimate visual material with the intent to harm the depicted individual.

24.  HB 121: Creates a new defense for a person with a CHL who promptly departs a premises prohibiting handguns. The bill is intended to address the situation where a CHL carrier mistakenly carries a handgun onto a premises prohibiting such, but who promptly departs after receiving notice to depart.

25.  HB 2524: Amends Penal Code Section 31.04 to create a presumption of theft of service. However, the bill provides that the term “written rental agreement” does not include an agreement permitting an individual to use personal property for personal or household purposes, which is automatically renewable with each payment and permits the individual to become the owner.

This list of 25 bills is not every bill affecting the Penal Code or Code of Criminal Procedure. TCDLA members will have access to a complete and detailed explanation of every such bill during the summer of 2019. The undersigned TCDLA lobby team would like to thank the TCDLA Legislative Committee, Executive Committee, and every TCDLA member who helped us during this session.

*   *   *   *

Allen D. Place Jr.
Place Law Office
109 S. 7th Street
Gatesville, TX 76528
David M. Gonzalez
Sumpter & Gonzalez
3011 N. Lamar, Ste. 200
Austin, TX 78705
Shea Place
Place Law Office
1122 Colorado, Ste. 1910
Austin, TX 78701

2013 Criminal Law Legislative Update

Introduction

During the 83rd Texas Legislature, criminal justice issues were dominated by Michael Morton, a man who was wrongfully convicted of killing his wife and who spent 25 years in prison before being officially exonerated. Michael Morton’s case highlighted the fact that Texas leads the nation in wrongful convictions and forced the Legislature to confront the issues that lead to wrongful convictions head-on. In his biennial address to the Legislature, State Supreme Court Justice Wallace Jefferson called on the Legislature to establish a special commission to investigate wrongful convictions, suggesting that public faith in the legal system is undermined when “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free.” While the bill to establish an innocence commission ultimately failed to pass, the Morton case generated tremendous momentum on all sides to legislatively address the systemic issues that led to Mr. Morton’s wrongful conviction and incarceration in order to prevent future wrongful convictions. In response to the Michael Morton travesty, which resulted in part from the withholding of favorable evidence by the prosecution, the “Michael Morton Act,” SB 1611, was signed into law and completely reforms the discovery process for criminal cases in Texas. In addition to the Michael Morton Act, there were several other criminal justice reform bills that passed that were designed to increase prosecutorial accountability and to prevent and remedy wrongful convictions. Also, numerous penalty-enhancement and new crime bills passed, as well as a bill that significantly alters the rules of evidence in certain criminal cases, and a bill in response to the U.S. Supreme Court’s recent decision in Miller v. Alabama.

Criminal Justice Reform Legislation

SB 1611, the “Michael Morton Act,” requires prosecutors to open their files to defendants and keep records of the evidence they disclosed in an attempt to reduce wrongful convictions in Texas. While the U.S. Supreme Court’s decision in Brady v. Maryland (1963) has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” this new law requires disclosure of all police reports and witness statements, regardless of whether the evidence is material to guilt or punishment, and requires that any other evidence that is material to any matter be disclosed.

SB 344 addresses the appeals process for those who were convicted based on junk science by expressly allowing courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. The bill authorizes courts to grant relief on applications for writs of habeas corpus if the relevant scientific evidence is currently available but was not available at the time of the conviction because the evidence was not ascertainable through reasonable diligence at the time of trial as long as the scientific evidence would be admissible.

SB 1238 was in direct response to the Attorney General opinion sought by John Bradley while he was chairman of the Texas Forensic Science Commission. The Attorney General opinion limited the Commission’s investigative authority to labs and facilities that were accredited by DPS at the time the forensic analyses took place and restricted the Commission’s authority to investigate fields of forensic analysis that were not included in the statutory definition. This legislation specifically authorizes the Commission to investigate many more types of forensic disciplines that are unaccredited such as arson, fingerprinting, breath-alcohol testing, ballistic examinations, and unaccredited entities.

HB 1847 requires that prosecutors complete at least one hour of ethics relating to the duty to disclose exculpatory and mitigating evidence as part of the State Bar’s minimum continuing legal education requirements each year.

SB 825 disallows the State Bar from issuing private sanctions when prosecutors are found to have committed Brady violations and also changes the statute of limitations for state bar grievances alleging Brady violations to begin to run when a wrongfully imprisoned person is released from prison.

HB 2090 requires a written statement signed by an accused to be in the language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding in an effort to reduce the possibility of false confessions being admitted at trial by a person that does not speak or understand English.

Penalty Enhancement and New Crime Legislation

HB 1302 requires an automatic sentence of life in prison without parole upon a second conviction for a “sexually violent offense” against a child under the age of 14. This leg­is­lation also specifically prohibits registered sex offenders from working at amusement parks, or seeking employment as a cab, bus, or limousine driver.

SB 124 provides that the offense of tampering with a governmental record is enhanced from a Class A misdemeanor to a third-degree felony if the governmental record was a public school record, report, or state-mandated assessment instrument (or a second-degree felony if the actor’s intent was to defraud or harm another).

HB 8 was the major bill that addressed human trafficking and provides for many enhancements including an enhancement on all prostitution offenses from a Class B misdemeanor to a second-degree felony if the person solicited is younger than 18 years of age, regardless of whether the actor knows the age of the person solicited at the time of the offense. This legislation also significantly alters the definition of the crime of possession of child pornography by providing that a person commits an offense if he knowingly or intentionally “access with the intent to view” child pornography.

SB 1360 enhances the penalty to the greater of a third-degree felony or the most serious offense charged in the criminal case if the underlying official proceeding involves family violence. This legislation also provides a statutory for­feiture by wrongdoing provision, which provides that a party to any criminal case who wrongfully procures the unavailability of a witness forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

SB 275 enhances the penalty from a third-degree felony to a second-degree felony for the offense of leaving the scene of an accident resulting in the death of a person.

SB 549 enhances the minimum penalty from 5 to 15 years in prison upon a conviction for a first-degree felony engaging in organized crime offense. In addition, this legislation requires an automatic sentence of life without parole upon conviction of engaging in organized crime if the underlying offense is an aggravated sexual assault and the defendant is at least 18 years of age or older and the victim was either younger than 6; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim is younger than 17 and suffered serious bodily injury.

HB 2539 places an affirmative duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography and provides a new Class B misdemeanor offense if the computer technician fails to make such report.

Evidentiary Change Legislation

SB 12 suspends evidentiary rules 404 and 405 in trials for certain sex offenses by allowing the admission of evidence during the guilt/innocence phase of the trial that the defendant has committed a separate enumerated sex offense for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. This legislation requires the trial judge to make a determination outside the presence of the jury and prior to the introduction of this evidence that the defendant committed the separate offense beyond a reasonable doubt.

Legislation in Response to Miller v. Alabama

SB 2 is an attempt by the Legislature to address the U.S. Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). Prior to the passage of SB 2, the only punishment available for an individual convicted of capital murder was either automatic life in prison without the possibility of parole, or the death penalty. This posed a unique issue for 17-year-olds, who under Texas law are treated as adults and not juveniles, who were convicted of capital murder since both of its man­datory punishments (life in prison without parole and the death penalty) had been declared unconstitutional. As a result, SB 2 requires that an individual younger than 18 years of age who is convicted of capital murder be punished with an automatic sentence of life in prison with the possibility of parole.

Other Highlights

HB 434 expands the list of those authorized to draw blood from a person during a driving while intoxicated investigation to include emergency medical technicians and paramedics. Under previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a peace officer for purposes of intoxication-related offenses. This new legislation will allow for a person’s blood to be drawn without having to transport the individual to a separate facility such as a hospital during an intoxication-related investigation.

HB 1862 amends the prohibited weapons statute by removing the switchblade knife from the prohibited weapons list so that there are no longer criminal consequences to possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

SB 821 Brings Texas law up to date by adding “hot drafts” to “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers, or “hot drafts.”

Conclusion

Overall, the 83rd Texas Legislature made some significant improvements in the criminal justice system, decreasing the likelihood of wrongful convictions by increasing transparency and accountability. As a result, hopefully fewer innocent people will be wrongfully convicted and imprisoned in Texas. However, despite the significant progress made this session, there is still a lot that needs to be done to improve our criminal justice system in upcoming sessions.