Austin Attorneys & Criminal Defense Lawyers | Jail Release | Federal Defense | DWI Attorney

The 81st Texas Legislative Session was so unproductive that it has been dubbed by many as "the Seinfeld Session" - the session about nothing. However, just because there was little accomplished and taxpayers' money went largely down the drain does not mean that there was no damage.

Unfortunately, even in a Seinfeld Session, we still can't escape the insatiable legislative urge to rack up a few penalty enhancements and create a few new crimes. And since ignorance of the law excuses no one, I thought I would post the criminal justice highlights of the 2009 Legislative session:

SB 839: Abolishes Life Without Parole for Juveniles
Amends § 12.31, Penal Code, Capital Felony, to provide that a juvenile convicted of a capital felony that was certified as an adult pursuant to § 54.02, Family Code, will be sentenced to life, not life without parole.

Amends § 508.145, Government Code, Eligibility for Release on Parole; Computation of Parole Eligibility Date, to provide that a juvenile convicted of a capital felony that was certified as an adult pursuant to § 54.02 is not eligible for release on parole until the actual calendar time the inmate has served, without consideration of good conduct time, equals 40 calendar years.

SB 1940: Authorizes Pretrial Diversion Program for Veterans
Adds Chapter 617, to Subtitle E, Title 7, Health and Safety Code, Veterans Court Program Defined; Procedures for Certain Defendants, to provide the commissioners court the authority to establish a veterans deferred prosecution program whereby if a veteran successfully completes a veterans court program, the court shall dismiss the case.

Adds Article 38.075, Code of Criminal Procedure, Corroboration of Certain Testimony Required, to require corroboration before a person can be convicted on the testimony of a jailhouse informant. Provides that corroboration is not sufficient if it only shows that the offense was committed.

HB 1736: Increases Payments and Services to Wrongfully Imprisoned
Adds § 103.052, Civil Practice and Remedies Code, Lump-Sum Compensation, to allow lump-sum compensation of $80,000 per each year of wrongful imprisonment and $25,000 per each year served on parole or as a registered sex offender.

Amends § 708.158, Transportation Code, Indigent Status and Reduction of Surcharges, to state that DPS shall waive all driver’s license surcharges for a person who is indigent.

Amends § 724.017, Transportation Code, Blood Specimen, to expand mandatory warrantless blood draws if a person is arrested for an offense under Chapter 49 of the Penal Code involving the operation of a motor vehicle or watercraft and the person refuses the officer’s request to submit to the taking of the specimen voluntarily and:

HB 2086: Creates New First Degree Felony Crime of Directing Activities of Criminal Street Gangs and Creates Definition for Gang-Free Zone and Provides Penalty Enhancements

Adds § 71.023, Penal Code, Directing Activities of Certain Gangs, to create the new crime of directing activities of certain criminal street gangs which is a first degree felony.

Adds § 71.028, Penal Code, Gang-Free Zones, to establish gang-free zones and to increase penalty category to the next higher category (except for first-degree felonies) if it is shown that the actor is 17 years or older and commits a crime in a gang-free zone; specifically, if the offense was committed:

HB 2240: Creates New Offense of Continual Violence Against the Family
Adds § 25.11, Penal Code, Continuous Violence Against the Family, to create a new offense of continual violence against the family, a third degree felony, if during a 12 month period, a person commits family violence two or more times.

HB 2846: Increases Age of Child Victims for Outcry Statement to 14 and Expands Outcry Statements to Include Acts Other Than the Alleged Offense that Were Committed Against the Child Victim or Other Victim Under 14

Amends § 1, Article 38.072, Code of Criminal Procedure, Hearsay Statement of Child Abuse Victim, to increase the age of a child victim from 12 to 14 for purposes of admitting an outcry statement and to allow outcry statements for criminal attempt of certain offenses.
Amends §2, Article 38.072, Code of Criminal Procedure, Hearsay Statement of Child Abuse Victim, to allow outcry statement of child victim under 14 concerning other crimes, wrongs, or acts other than the alleged offense and allegedly committed by the defendant against the victim or another child younger than 14.

SB 727: Requires Judges to Order DNA Sample Collection for Defendants Granted Probation for a Felony and Juveniles Adjudicated of 3g Offenses

Amends Article 102.020, Code of Criminal Procedure, Costs on Conviction for Offenses Requiring DNA Testing, to require a person placed on community supervision to pay $34 if DNA sample required.

Adds § 54.0409, Family Code, DNA Sample Required on Certain Felony Adjudications, to require the court to, on adjudication of a 3g felony or felony involving a deadly weapon, collect DNA, as a condition of probation, from a juvenile.
Adds Subsection J, § 11, Article 42.12, Code of Criminal Procedure, Community Supervision, to require a judge granting probation to a defendant convicted of a felony to require defendant to provide a DNA sample.

I am still trying to recover after learning that Governor Perry vetoed some of the only good criminal justice bills that made it through the legislative gauntlet this session (after hundreds of bills died in the House due to the controversy surrounding voter ID). Few, if any, lawmakers voted against the bills that Perry killed and it is beyond frustrating that one person has this much power: I echo the sentiments of Senator Wentworth's vent:

The expunction bill would have made it easier to for those who have had their cases dismissed, or were arrested but were not charged with a crime, to expunge their records. This would have been an amazing opportunity for people who have had their cases dismissed (or not filed!) to move on with their lives without having a criminal record following them around.

Texas Criminal Defense Lawyers Association, along with many other groups, proposed the change because current law imposes lengthy time limitations (and in some case, no time limitations) on being able to file for an expunction after a case has been dismissed. For example, I have two clients that were falsely accused of sexual assault that are unable to have their records expunged under current law because there is no statute of limitations for that offense. Sorry, looks like those false sexual assault charges are going to have to follow two innocent men around at least two more years until next session! And sorry to the thousands of innocent Texans who are going to continue to be harmed with a criminal record that will make it even harder for them in these tough economic times to find jobs, housing, etc.

And Governor Perry's official veto statement as to why he vetoed a bill that had bi-partisan support and passed unanimously out of the House and Senate is nonsensical: "Expunction statutes should not be used as a means of discovery or as a means to force a prosecutor to rush to file formal charges prematurely." What??? Expunction statutes have never and would never be used as a means of discovery - what we want when we are seeking to expunge records is a destruction of those records, not a request to get offense reports. In addition, prosecutors must only have probable cause to file formal charges against someone - and every defense attorney knows how difficult a time a prosecutor has persuading a grand jury on that!

The sex offender de-registration bill was a very narrowly tailored bill that would have offered some relief to young "offenders" who could petition the court for an exemption from life-time sex offender registration for consensual sexual activities if they were within four years of the "victim." Under current law, a 17 1/2-year old who has consensual sex with his 14-year old girlfriend (or a 19 year old with a 15 year old or a 20 year old with a 16 year old) is guilty of sexual assault. That person, if convicted, has to register as a sex offender for life just the same as someone who commits rape or makes child pornography.

What we are talking about here under this bill would have been to allow those teenagers in "Romeo and Juilet" situations to petition the court (and this would have been permissive - not mandatory) to excuse them from a lifetime of sex offender registration for consensual sex as long as they were within four years of the "victim". (And as long as the "victim" was 14 or older.)

And Perry's reason for the veto: "I believe the bill fails to adequately protect young victims." First, the "young victims" Perry refers to are the teenagers who had consensual sex with partners four years older than they were - how does not making those "offenders" register for life in the same way that dangerous predators do "fail to adequately protect" them? Got me. And more importantly, what about the "young victims" out there that will be harmed because our limited public safety resources will be diverted and wasted on monitoring thousands of people on the sex offender registry that pose absolutely no public safety threat? (Not to mention those "young victims" - the "offenders" - who now have no relief from a life-time of living publicly as a sex offender.)

You can probably guess that I am not normally a huge Republican backer, but here's to Kay Bailey Hutchison (or really, anyone but Perry... ANYONE - Kinky Friedman? Leslie Cochrane? Kermit the Frog?) for 2010.

Update 6-22-09: Sadly, HB 3481 was vetoed Friday by Governor Perry. Texas expunction law will continue to be outlined as it is here. The original post is below.

There’s a common misconception out there that once a person's case is dismissed, it'll no longer be on their record. Unfortunately, it's a little more complicated than that.

People who've been wrongfully accused, or who've have had their charges dismissed as part of a plea agreement, or who've been acquitted at trial - unless they take an active step to have their records expunged, that arrest will remain on their record for anyone to see for the rest of their life.

Moreover, unless they expunge their record, they must always answer "yes" to the question "have you ever been arrested" - which appears on job applications, bank forms, school and rental applications, and more. There are a number of companies that do nothing but collect and disseminate criminal records, and they make a lot of money trying to make sure that the arrest can follow you indefinitely.
That's where an expunction comes in. The statute in Texas has always allowed those who meet certain criteria to receive an expunction - in which the court destroys all record of the arrest and which allows the client to legally answer the question "have you ever been arrested" with a "no" - but the state has also imposed tight restrictions and required long time limits for elibility.

This is a huge burden for those needing to move on with their lives. I'm one of the lobbyists for Texas Criminal Defense Lawyers Association, along with S&G's David Gonzalez, as well as Keith Hampton and Allen Place, and we've been working during the 81st Legislative Session to help alleviate that burden. The bill we helped to draft, HB 3481, passed the House and Senate and was sent to Governor Perry on June 3. HB 3481 eliminates the current waiting period - in most misdemeanor cases two years, and in most felonies three, with some never being eligible - and replaces it with much more reasonable time periods. For unfiled misdemeanors and unfiled or dismissed felonies, a person will be eligible six months after an arrest. For dismissed misdemeanors, a person will be eligible immediately. The bill also eliminates the requirement that the person in question have no other conviction within five years preceding the date of arrest.

We're really optimistic that this will make a big difference in people's lives. Now we're just waiting on Governor Perry. If all goes well, this will go to law and be effective immediately.

(image via EssG's flickr)