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.
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|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
Place Law Office
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Austin, TX 78701