Kristin Etter

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

2013 Criminal Law Legislative Update


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.”


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.