In Couthren v. State, the Texas Court of Criminal Appeals held a person accused of felony driving while intoxicated may only be charged with using a motor vehicle as a deadly weapon if the manner in which the defendant was driving could cause death or serious bodily injury. In this case, even though it involved an auto-pedestrian accident, the Court concluded that there was no evidence that the accident was caused by the defendant’s reckless or dangerous driving. In Texas, a person arrested for DWI who has two or more prior convictions for DWI will be charged with DWI – Felony Repetition, a third degree felony.

What are the Deadly Weapon Enhancements in DWIs?

In any felony where it is show that the defendant used or exhibited a deadly weapon, the trial court shall enter a deadly weapon finding in the judgment. A motor vehicle is not a deadly weapon, per se, but can be if it is used in a manner that is capable of causing death or serious bodily injury.

DWI Accident – The Background

Donald Ray Couthren II was convicted of driving while intoxicated – felony repetition after he got behind the wheel in the early morning hours of June 16, 2012, after drinking two “Four Loko” beverages. Couthren was driving on a frontage road, just outside of Bryan, Texas, when a pedestrian walking home from a nearby bar stepped out in front of his vehicle. The vehicle struck the pedestrian and his head went through the windshield. He suffered six broken ribs, a broken leg and possibly a concussion. Couthren put the unconscious pedestrian in his vehicle and drove to a nearby house where he was subsequently arrested.

What is the Basis for a Deadly Weapon Finding?

A finding that the vehicle was used in a manner that is capable of causing death or serious bodily injury is dependent on whether the defendant’s driving was reckless or dangerous. Reckless or dangerous driving has been demonstrated by speeding, disregarding traffic signs, failing to maintain control of vehicle, fishtailing, causing property damage with the vehicle, driving on the wrong side of the road, almost colliding with another vehicle, and failing to yield to traffic. This is a fact-sensitive inquiry based upon specific testimony and the record of evidence. Furthermore, the fact of a collision and intoxication alone will not support finding of a motor vehicle as a deadly weapon.

Because this analysis is fact-sensitive, the court looked at two cases where the use of a motor vehicle in a DWI case satisfied the deadly weapon component to determine if the threshold was met in this case.

In Sierra v. State, there was no witness testimony regarding the accident, however the police conducted a thorough on-scene investigation and could determine the speed at which the vehicle was going. The Court concluded that, under these facts, a jury could have reasonably found that the defendant was speeding and failed to maintain control of his vehicle.

In Moore v. State, the defendant rear-ended a vehicle causing it slam into another vehicle in a major intersection. In this case there was evidence both that the vehicle was going fast enough to cause this double collision, as well as evidence that the defendant either failed to apply the brakes, or applied them too late to avoid impact. Here, too, the Court  found that the defendant was using his vehicle in a manner capable of causing serious injury or death.

Finally, the court, in a footnote, cites Tyra v. State, where the evidence showed that the defendant was too drunk to control the vehicle and the inability to control the vehicle demonstrated recklessness. In all three cases, there existed enough evidence to demonstrate the defendant’s intoxication caused the defendant to not be in control thereby making the vehicle a deadly weapon.

The set of facts in Couthren v. State do not present enough evidence to issue a finding that the motor vehicle was a deadly weapon. On June 16, 2012, around 2:00 a.m. the defendant was driving his vehicle on a frontage road. The defendant admitted to consuming alcohol earlier that afternoon. The victim was walking home on the right side of the road. He was leaving a bar and decided to walk because he had two DWI charges and did not want a third. As the defendant was driving, the victim stepped in front of the vehicle and hit his head on the windshield. The defendant got out of the car to inspect the body, and noticed the victim was bloody and unconscious. There were no other witnesses present or any passing vehicles. The defendant decided to take the victim to the hospital, but in lieu of immediately driving to the hospital, the defendant drove to his house to exchange cars with his girlfriend where he became involved in an altercation. It was at this point the police were called and the defendant was arrested.

The Court of Appeals noted that they were unable to ascertain the manner in which the defendant was driving moments before the victim was hit. The only evidence present in the case was that the defendant admitted to drinking alcohol and further testified that he was driving roughly 30 miles per hour when he struck the victim. The officers testified that he appeared intoxicated, and was slurring his speech and swaying. They noted that the defendant did not drive to the hospital immediately, and that his vehicle’s windshield has a spiderweb of broken glass on the passenger’s side. Finally, they testified that it appeared that the victim was hit pretty hard. The court found this evidence did not meet the threshold of being reckless or dangerous. The only direct evidence was the defendant’s testimony that he was driving 30 miles per hour. The officers did not testify about the speed limit on the road, and did not conduct an investigation of brake marks or skid marks to determine the manner in which the defendant was driving. While the officers did say the victim looked to have been hit hard, it does not demonstrate the inference of speeding like in the Moore case. Thus, the court was unable to determine the motor vehicle was a deadly weapon in this case.

As an ancillary matter, the State also alleged that the defendant’s decision not to take the victim immediately to the hospital and to drive with the windshield broken was evidence of the reckless or dangerous standard. The court quickly dispels this notion by arguing a decision to drive may be reckless but that does not make automatically the vehicle a deadly weapon. Furthermore they noted that while the passenger side of the windshield was cracked, the officers noted the driver’s side appeared to be clear enough for a person to have enough visibility to drive. The court ultimately dispensed with their second argument and found the defendant did not use a deadly weapon in his DWI charge.

Contact us at 817-203-2220 or reach out online.

The post Does a DWI Felony + Wreck = Deadly Weapon Finding? appeared first on Varghese Summersett PLLC.

Gamble vs. U.S. (2019)

The Supreme Court handed down its decision in Gamble vs. United States (No. 17–646) on July 17 in which the Court declined to put an end to state and federal prosecutors punishing individuals twice for the same crime.

In its 7-2 decision, the Court declined to overturn the dual-sovereignty doctrine. While the Fifth Amendment guarantees that individuals may not “be subject for the same offense to be twice put in jeopardy of life or limb,” the state and federal government are considered separate sovereigns so each is permitted to prosecute individuals for the acts.

A Refresher on Double Jeopardy

The Double Jeopardy Clause provides no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. Generally, a person cannot be tried twice for the same crime. Take the O.J. Simpson case. O.J. Simpson, an NFL star and winner of the 1968 Heisman Trophy, was accused of killing his ex-wife and her partner. The trial gained national attention, but on October 3, 1995, a criminal jury found Simpson not guilty on both counts. In 2007, Simpson published a book, If I Did It, in which O.J. tells a purportedly hypothetical story of how he killed Nicole Brown and Ronald Goldman. This “confession” or any other new information that investigators gathered after the trial cannot be used by California for a new trial because such actions are precisely what is barred by the Double Jeopardy Clause.

Dual-Sovereignty in a Nutshell

There has traditionally been an exception to the Double Jeopardy Clause, specifically the Dual Sovereigns Exception. In Gamble, the state of Alabama prosecuted Terance Gamble for being a felon in possession of a firearm and sentenced him to one-year confinement. While the state prosecution was pending, the federal government charged Gamble for the same offense, but under federal law. This federal prosecution was premised on the same facts that gave rise to his state conviction but charged under federal law. Gamble was sentenced to 46 months on the federal case.

The Crux of Gamble

The petitioner in this case – Terance Gamble – pled guilty to violating Alabama’s felon-in-possession-of-a-firearm statute and was sentenced to one year in prison. Federal prosecutors then indicted Gamble under 18 U.S.C. § 922(g)(1) – the federal equivalent.

Gamble filed a motion to dismiss arguing he was being prosecuted in violation of the Double Jeopardy Clause of the Fifth Amendment.

The majority opinion, written by Justice Alito, can be summarized with the following excerpt, “a crime against two sovereigns constitutes two offenses because each sovereign has an interest to vindicate.”

Justices Ginsburg and Gorsuch, an odd pairing on the surface, both wrote dissents. For now, dual sovereignty still reigns over double jeopardy.

What is a Sovereignty for Purposes of Double Jeopardy?

How is the term “sovereignty” applied? According to the Supreme Court, “this determination [whether two entities are separate sovereigns] turns on whether the two entities draw their authority to punish the offender from distinct sources of power.” In Heath, the Supreme Court reiterated that States draw their power from a different source than the U.S. Government. The Court also found in that case that States are separate sovereigns from each other. Thus, in the Heath case, the successive prosecution in an Alabama state court for capital murder during a kidnapping, subsequent to Heath’s conviction for the same murder in Georgia, did not offend the Fifth Amendment and was held to be Constitutional.

The Petite-Policy and Double Jeopardy

Are there practical limitations upon successive federal and state prosecutions? The answer is yes, but with a major exception. The Department of Justice’s Petite-Policy (pronounced like ‘pet it’ not ‘puh-teet’) generally bars the successive federal prosecution of a crime where a state conviction has already taken place. However, this is an internal DOJ rule and is not binding upon any Court. In U.S. v. Patterson, the Fifth Circuit clearly stated such.

“It has been clearly established that since the Petite policy is an internal rule, criminal defendants may not invoke it [the Petite Policy] to bar prosecution by the federal government. Moreover, there is a good reason for this view. To enforce the Petite policy against the government may encourage the government to abandon the policy, which could hardly be in the interests of justice. Since we adhere to the established rule that the Petite policy may not be enforced against the government by defendants, we must reject the defendants’ claim that they should not have been prosecuted because the government failed to adhere to the Petite policy.”

It is also important to recognize that the Petite-Policy is not a blanket ban upon federal prosecutions of offenses already resulting in state convictions, rather, the policy limits such federal prosecutions “ only where there are compelling reasons, and the prosecuting attorney obtains prior approval from an assistant United States attorney general.” See, Rinaldi v. United States, 434 U.S. 22, 28,(1977) (per curiam).

So, is there any case where a Court may bar the federal prosecution of a case where there has already been a state prosecution? Yes, but only in limited circumstances. The “Sham Test” has been applied by federal courts as an exception to the Dual Sovereignty Doctrine. The Fifth Circuit recognizes the possibility for this exception in a case called U.S. v. Moore, stating, “the Supreme Court suggested in dicta that there may be an exception to the dual sovereignty doctrine when one sovereign is “merely a tool” of the other in bringing a second prosecution that is a “sham and a cover” for a prosecution that would otherwise be barred under the Double Jeopardy Clause.” This rule exception is from a Supreme Court case titled Bartkus v. Illinois.

Put simply, the “Sham Test” is a test to determine if there exists a “high level of control: one sovereign must (1) have the ability to control the prosecution of the other and (2) it must exert this control to “essentially manipulate[ ] another sovereign into prosecuting.”

Ultimately, federal prosecutions for cases that are already prosecuted as state offenses are not highly common but are permissible and encouraged by the DOJ if “compelling reasons” exist. Obviously, the DOJ determines what qualifies as a compelling one. Persons who face potential prosecutions on both the state and federal levels need to understand that the systems work very differently and oftentimes encompass different sentencing implications. They also involve variations regarding evidentiary precepts. Also significant is the fact that many federal prosecutions proceed under conspiracy statutes, which trigger massive hearsay loopholes.

Defense attorneys representing persons facing potential dual prosecutions need to understand the differences between state criminal procedure and federal procedure. They need to quickly take steps to dissuade federal prosecutors from proceeding with a successive prosecution as well as determine whether the federal prosecution is simply a ruse to allow state prosecutors a second bite at the apple. Being able to quickly establish a dialogue with federal prosecutors and demonstrate that a federal prosecution is not an effective use of resources could mean the difference between facing, and not facing, a federal charge. In most instances, but not necessarily all instances, the state system would be preferable.

What are Limitations on Dual Sovereignty?

There are, in essence, only two limits on pursuing these prosecutions. The first limitation is imposed by the states. Currently, there are at least 20 states that reject the dual sovereignty exception as a matter of state law and another 17 that put serious limitations on it. The second is the Department of Justice’s Petit policy which precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(s) or transaction(s) unless three substantive prerequisites are satisfied: first, the matter must involve a substantial federal interest; second, the prior prosecution must have left that interest demonstrably un-vindicated; and third, applying the same test that is applicable to all federal prosecutions, the government must believe that the defendant’s conduct constitutes a federal offense, and that the admissible evidence probably will be sufficient to obtain and sustain a conviction by an unbiased trier of fact.

Contact us at 817-203-2220 or reach out online.

The post Dual Sovereignty Reigns Over Double Jeopardy | Gamble vs. United States (2019) appeared first on Varghese Summersett PLLC.

Updated: July 22, 2019

Here are the 40 new criminal law changes you need to be aware of from the 86th legislative session in Texas. Most of the new laws took effect on September 1, 2019. This article will be periodically updated with more changes to criminal laws that are going into effect in the coming months. Here’s a look at the changes to criminal laws in Texas that you need to be aware of:

House Bill 2048 – Mandatory Special Fines for DWIs

Signed by the Governor, Effective Sept. 1, 2019

HB 2048 eliminates the so-called Driver Responsibility Program and the controversial surcharges that went with it. These surcharges were  added on to court fines and criminal penalties for Texas drivers who were convicted of offenses ranging from driving without a valid license to driving while intoxicated.

(As it pertains to DWI, a first time DWI resulted in $3,000 in surcharges due to DPS; a subsequent DWI carried a surcharge of $4,500; a DWI with a BAC greater than .15 resulted in a $6,000 surcharge). Before you begin the applause for this effort, however, the same bill increases the fines for individuals convicted of DWIs. In addition to the $2,000 – $10,000 fines already applicable to DWIs, individuals convicted of DWIs will now be required to pay:

• $3,000 as an additional fine for the first DWI in a 36-month period;
• $4,500 for a subsequent DWI in a 36-month period; and
• $6,000 fine for a DWI BAC >/= 0.15.

Notice these fines are mandatory and that the fines do not provide for a range. In other words, it is a $3,000 fine, not a fine of “up to $3,000.”

In order for the fines to be waived, the court must find that the client was indigent.

It’s important to point out that HB 2048 eliminates surcharges going forward and wipes the slate for any outstanding surcharge. That means any surcharge you presently owe – because of a DWI or otherwise – will be zeroed out on September 1, 2019.  Additionally, if your license was suspended as a result of not paying surcharges, your license will be reinstated. If you have a pending DWI (that occurred/occurs before September 1, 2019) you will not have to pay a surcharge. If you get arrested for and are convicted of a DWI on or after September 1, 2019, you will not have to pay a surcharge, but if you are convicted you will be subject to new and equivalent fines as discussed above.

RESOURCE PAGE:

Link: HB 2048

House Bill 3703 – Medical Marijuana

Signed by the Governor, Effective  Sept. 1, 2019

HB 3703 expands the state’s medical marijuana program by allowing Board Certified doctors to prescribe low-THC marijuana for:1. Terminal cancer. 2. Epilepsy (not just intractable)3. Seizures 4. Multiple Sclerosis5. Spasticity (a condition in which certain muscles are continuously contracted)6. ALS (amyotrophic lateral sclerosis, is a progressive neurodegenerative disease that affects nerve cells in the brain and the spinal cord) 7. Autism8. An incurable neurodegenerative disease The bill redefines low-THC cannabis as any part of the marijuana plant (or derivative or oil of the marijuana plant) that contains not more than .5 percent by weight of THC.

Link: HB 3703

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House Bill 446 – Brass Knuckles, Clubs, and ASP Batons Legalized

?Signed by the Governor, Effective Sept. 1, 2019

HB 446 amends Penal Code 46.02(a) and takes clubs off the list of prohibited weapons. The definition of “club” remains “an instrument that is specially designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with the instrument…. H.B. 446 also amends Penal Code 46.05 to remove knuckles from the list of items that are illegal to possess, manufacture, transport, repair, or sell. This means things like nunchucks, tomahawks, and ASP batons will be legal effective September 1, 2019.

Link: HB 446

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House Bill 1325 – Legalization of CBD

Signed – Effective Immediately.

House Bill 1325  legalizes hemp production, removes hemp from the Controlled Substances Act, and legalize CBD products that contain .3 percent or less THC. This would also restrict prosecutors like the Tarrant County District Attorney from prosecution of CBD (with less than .3 percent THC) cases either as felonies or misdemeanors.

Link HB 1325

House Bill 2789 – Dick Pics By Request Only

Signed Effective September 1, 2019

Get those First Amendment challenges ready. H.B. 2789 creates a new offense by added Section 21.19 to the Penal Code. This makes it illegal to send a picture or video of a sexual act, an intimate part, or a covered, but erect, penis – that is not at the request or with the express consent of the recipient. The “dick pic” bill creates a Class C offense that is punishable by up to a $500 fine.

Just wait for this one to be found unconstitutional.

Link: HB 2789

Senate Bill 2136- Expands 38.371 to All Cases with Family Members.

Signed – Effective September 1, 2019

Senate Bill 2136 makes a massive change to the type of evidence that can be introduced in the guilt-innocence portion of a case where the defendant and victim are related. By Amending Code of Criminal Procedure 38.371, evidence, the legislature made Article 38.371 apply to ALL offenses of any type where the alleged victim is a family member (including individuals who have or had a dating relationship under Family Code Section 71.0021(b); family members under FC Section 71.003 including former spouses, siblings, foster children/parents, individuals related by a common ancestor, parents and and children, in-laws; and household members under FC Section 71.005.) Article 38.371 allows the introduction – by either the defense or state – and subject to the Rules of Evidence – testimony and evidence regarding “all relevant facts and circumstances” that would “assist the trier of fact in determining whether the actor committed the offense” specifically “including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.”

Link: SB 2136

Senate Bill 20 – Probation for Prostitution Mandatory

Signed – Effective September 1, 2019

Senate Bill 20 creates a new Article in the Code of Criminal Procedure – 42A.515 – which now requires judges to impose probation as the sentence for anyone convicted of a Class B misdemeanor prostitution (without distinction between johns and prostitutes) unless a jury imposes a jail sentence. Similarly, a person charged with a state jail felony prostitution case (who does does not a previous conviction for that state jail offense) must be placed on probation.

Link: SB 20

House Bill 2758 – No Probation for Indecency from Judge/Jury

Signed – Effective September 1, 2019

House Bill 2758 prohibits a judge from imposing straight probation after a plea or verdict of guilt for the offense of Indecency with a Child by Contact or by Exposure if the offense took place on or after September 1, 2019. By amending Code of Criminal Procedure Article 42A.056, HB 2758 also prohibits juries from probation individuals found guilty of indecency is the child was under 14 at the time of the offense.

House Bill 2758 also prohibits deferred adjudication for Trafficking or Continuous Trafficking.

Link: HB 2758

House Bill 1399 – DNA Required Upon Arrest

Signed – Effective September 1, 2019

House Bill 1399 makes the mandatory DNA sample post-arrest instead of post-indictment.

Through Amendments to CCP 42A.352 and Government Code Section 411.1425, law enforcement agencies will now collect a DNA specimen from individuals merely arrested (as opposed to indicted) for: – murder;- capital murder;- kidnapping– aggravated kidnapping;- human smuggling;- continuous human smuggling;- human trafficking;- continuous human trafficking;- continuous sexual abuse of young child or children;- indecency with a child;- assault;- sexual assault;- aggravated assault;- aggravated sexual assault;- prohibited sexual conduct;- robbery;- aggravated robbery;- burglary;- theft;- promotion of prostitution; – aggravated promotion of prostitution;- compelling prostitution;- sexual performance by a child; or- possession or promotion of child pornography

Link: HB 1399

House Bill 98 – Revenge Porn v. 2.0

Signed – Effective September 1, 2019

House Bill 98 addresses concerns that “have been raised regarding the constitutionality” of the civil and criminal Revenge Porn statutes. House Bill 98 amends Penal Code 21.16(b) by adding an intent element – that the intimate visual material was released with the intent to harm the depicted individual. (Quote from bill analysis.)

Link: HB 98

House Bill 37 – Mail Theft

Signed – Effective September 1, 2019

Porch pirates beware!

HB 37 creates a state offense for mail theft with enhancements for stealing mail from elderly or disabled individuals. Generally, stealing mail from fewer than 10 addresses will be a Class A misdemeanor; 10 to 29 addresses is a state jail felony; and anything over that is a third-degree felony. The offenses are enhanced one level if it is shown that identifying information was taken for the purpose of committing fraud.

Link: HB 37

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House Bill 902 – Assault on a Pregnant Woman

Signed – Effective September 1, 2019

HB 902 makes assaulting a woman whom the accused knows is pregnant a third- degree felony, instead of a Class A misdemeanor.

Link HB 902

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House Bill 3582 – The (Mostly) Illusory Deferred DWI Bill

Signed – Effective September 1, 2019

House Bill 3582 is a bill supported by MADD for a reason – it creates the illusion of a new and more desirable outcome for first-time DWIs. The reality is there is very little practical effect to this bill other than a shortened period before the person can apply for a nondisclosure – assuming there was not an accident involving another person. A judge must require an interlock device on any DWI that is deferred, even though the blood alcohol concentration is less than .15, unless after substance and alcohol evaluation the judge rules that the use of interlock is not necessary for the safety of the community. (Probation for a first-time DWI with a BAC less than .15 currently does not require interlock as a condition.) Deferred for a DWI is considered a conviction for enhancement purposes for any future DWI allegation. The nondisclosure waiting period is two years, instead of the standard 3-to-5 years for a probated DWI. A nondisclosed DWI can still be used for enhancement purposes.

Link: HB 3582

House Bill 51 – Creation of Standard Criminal Forms

Vetoed the Governor

HB 51 calls for the creation of standard forms by the Office of Court Administration by September 1, 2020 for:

1. A plea of guilty in a felony case.
2. A plea of no contest in a felony case.
3. A plea of guilty in a misdemeanor case.
4. A plea of no contest in a misdemeanor case.
5. Trial court admonishments.
6. Client’s Acknowledgement of trial court admonishments.
7. Waiver of discovery under 39.14
8. Evidence disclosure receipt
9. Plea agreements
10. Expunction and nondisclosure waivers

The Texas Supreme Court will set a date by which these forms must be adopted by all courts.

Link: HB 51

House Bill 2894 – Healthcare Fraud

Signed – Effective September 1, 2019

HB 2894 significantly expands the Medicaid Fraud statue and creates Healthcare Fraud as a state criminal cause of action.

Link: HB 2894

Senate Bill 1802 – Registration for Aggravated Promotion of Prostitution

Signed – Effective September 1, 2019

Senate Bill 1802 amends CCP Article 62.001(5) to require sex offender registration for aggravated promotion of prostitution.

Link: SB 1802

House Bill 101 – Spoofing Calls is a Crime

Signed – Effective September 1, 2019

House Bill 101 creates a Spoofed Calls statute under Penal Code 33A.051 that makes it illegal to spoof a phone number when the call is made with the intent to defraud, harass, or cause harm. Subsection (d) allows officers to spoof phone calls while on official duty.

Link: HB 101

Senate Bill 38 – Hazing Statute Expanded

Signed – Effective September 1, 2019

Senate Bill 38 expands Section 37.151 of the Education Code from sororities and fraternities to also include “student government, a band or musical group or an academic, athletic, cheerleading, or dance team, including any group or team that participates in National Collegiate Athletic Association competition”

Link: SB 38

Senate Bill 1754 – Prosecutors No Longer Need to Prove Intent: Taking a Weapon from a Peace Officer

Signed – Effective September 1, 2019

SB 1754 removes the intent element from taking (or attempting to take) a weapon from a peace officer. Prosecutors no longer have to show that the weapon was taken with the intent to harm an officer or third person.

Link: SB 1754

Senate Bill 405: Every Sexual Assault Investigation into FBI Database

Signed – Effective September 1, 2019

Effective September 1, 2019, pursuant to Government Code 420.035, every investigation (charged or uncharged) into any sexual assault or other sex offense is required to be entered into the national database of the Violent Criminal Apprehension Program established and maintained by the Federal Bureau of Investigation. If a person is merely investigated for a sexual offense their name, date of birth, suspected offense, and a description of the offense is to be entered into the database. Learn more about “Molly Jane’s Law.”

Link: HB 3106

Senate Bill 8 – 90 Day Recommendation for Rape Kits

Signed – Effective September 1, 2019

On the surface this bill requires rape kits to be analyzed within 90 days of submission to a public accredited crime lab, but leaves open a huge loophole – that the kits only have to be tested in 90 days “if sufficient personnel and resources are available.”

Link: HB 8

Senate Bill 20 – Online Promotion of Prostitution

Signed – Effective September 1, 2019

Senate Bill 20 creates the new offense of Online Promotion of Prostitution. This third degree charge applies to a person who owns, manages, or operates a website with the intent to promote prostitution or facilitate prostitution. A repeat offense or an offense involving someone 18 or under – regardless of whether the person knew the age – is a second degree offense.

Aggravated Online Promotion of Prostitution is one level higher (so a second degree or first degree) when the website is operated to facilitate prostitution for five or more persons.

Link: SB 20

House Bill 2625 – Fraudulent Credit and Debit Cards

Signed – Effective September 1, 2019

HB 2625 creates an offense under Penal Code 32.315 for obtaining, possessing, transferring or using a counterfeit credit or debit card with the intent to harm or defraud another person. Possessing less than five items would be a state jail felony, five to nine items would be a third degree felony, 10 to 49 items would be a second degree felony, and 50 or more items would be a first degree felony.

Link: HB 2625

House Bill 1279 – Changing Parole Eligibility Jury Instruction

Signed – Effective September 1, 2019

HB 1279 changes the language to be used in a jury instruction in the punishment phase of a criminal jury trial, updating the language relating to good conduct time.

Link: HB 1279

House Bill 8 – Removing Statute of Limitation for Certain Sexual Assaults

Signed – Effective September 1, 2019

HB 8 removes the statute of limitation for sexual assault cases where biological evidence was collected but has yet to be tested for DNA. The bill also creates a “Telehealth” center for Sexual Assault Nurse Exams so SANE exams may be done remotely, especially if you are in a smaller jurisdiction.

Link: HB 8

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House Bill 1899 – Denial of Professional Licenses After Deferred or Conviction

Signed – Effective September 1, 2019

If a healthcare professional is found guilty or placed on deferred for an offense requiring registration as a sex offender or if the professional is found guilty of a sexual offense against a patient, the court must inform the Texas Medical Board and DPS. The bill also creates an automatic revocation or denial of professional licenses for a variety of medical professionals including dentists, dental hygienists, nurses, occupational therapists, optometrists, physical therapists, pharmacists, doctors, psychologists, social workers, and speech pathologists. It also requires licenses be denied for anyone placed on deferred adjudication or convicted of a felony offense involving the use or threat of force (think about collateral consequence warnings for individuals contemplating pleas for aggravated assault, for instance). Licenses must be denied to individuals required to register as sex offenders or who have been convicted or placed on deferred adjudication for a sexual offense against a patient.

Link: HB 1899

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House Bill 2945 – Service Station Owners: Beware of Skimmers

Signed – Effective September 1, 2019

House Bill 2945 creates an offenses for disposing of card skimmers, which is aimed at owners of unattended point-of-sale terminals or kiosks. Negligently disposing of a card skimmer is a Class B misdemeanor but disposing of a card skimmer knowing a criminal investigation is under way commits a third degree felony.

Link: HB 2945

House Bill 427 – New Punishments for Switching Price Tags

Signed – Effective September 1, 2019

HB 427 changes the punishment range for switching price tags. The offense, formally known as “fraudulent destruction, removal, or concealment of a writing” will now be tied to the difference in the value of the new tag and the original price of the item and will follow the standard theft ladder valuations: under $100 is a Class C misdemeanor, $100-750 is a Class B, $750-2,500 is a Class A, $2,500 – $30,000 is a state jail felony, $30,000 – $150,000 is a third degree felony, $150,000 – 300,000 is a second degree felony and anything over that is a first- degree felony.

Link: HB 427

Senate Bill 550 – Allowing Nondisclosure after Judicial Clemency

Update – Vetoed by Governor

SB 550 would have allowed offenses that have been set aside through Judicial Clemency under 42A.701 to non-disclosed after a waiting period.

Link: SB 550

Senate Bill 194 – Indecent Assault, Groping

This Act takes effect September 1, 2019, except Section 16 takes effect immediately. 

SB 194 creates the offense of Indecent Assault. A person commits Indecent Assault if without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person, they touch the breast, butt, or genitals of another person; touch another person with their butt, breast, or genitals. This offense also covers contacting another person with seminal fluid, vaginal fluid, saliva, urine, or feces. Indecent Assault is a Class A misdemeanor.

Link: SB 194

Senate Bill 719 – Lauren’s Law: Capital Murder includes Children Under Age 15

Signed – Effective September 1, 2019

SB 719, also known as Lauren’s Law,  raised the age from 10 to 15 for a capital murder for the murder of a child. Prosecutors may not seek the death penalty for child victims between 10 and 15, so anyone convicted only under this subsection shall receive life without parole.

Link: SB 719

Senate Bill 535 – Carrying a Gun to Church

Signed – Effective September 1, 2019

SB 535 allows individuals with a license to carry to bring their handgun to church or other place of worship if the church has not posted a 30.06 (concealed) / 30.07(open carry) notice.

Link: SB 535

House Bill 3490 – Expanding Harassment Statute

Bill vetoed by the Governor.

HB 3490 expands the definition of harassment to include posting repeated messages on the internet, including on social media platforms.

Link: HB 3490

Senate Bill 346 – Consolidating Court Costs

Bill signed by Governor. Effective January 1, 2020.

SB 346 increases the court costs for felonies from $133 to $185. For Class A and B misdemeanors, the court costs increase from $83 to $147. These changes reflect consolidation of some costs and repeal of others such as a repeal of the fees for the services of county and district clerks.

Link: SB 346

Senate Bill 1802 – Enhanced Punishment for Human Trafficking

Signed – Effective September 1, 2019

SB 1802 increases the level of punishment for human trafficking offenses by one level.

Link: SB 1802

House Bill 374 – New Probation Policies

Signed – Effective September 1, 2019

HB 374 requires probation departments to adopt policies so that meetings with probationers are set after taking into consideration the probationer’s work schedule, treatment, and community service. Probation departments mays allow reporting by videoconference.

Link: HB 374

Senate Bill 306 – Public Intoxication Release Options

Signed by Governor. Effective Immediately.

SB 306 broadens the ability of officers to release individuals who are publicly intoxicated in lieu of arresting them. In addition to releasing them to a responsible adult or  substance abuse program, officers may now release them a facility to sober up under supervision.

Link: SB 306

Senate Bill 1700 – Release Inmates Before Dark

Signed – Effective September 1, 2019

SB 1700 amends the Code of Criminal Procedure to require discharge of inmates by 5 p.m. instead of 7 p.m. under most circumstances. An inmate can agree to be released after 5 pm.

Link: SB1700

Many legislative efforts died on the vine this session. It’ll be two years before the legislature meets again and has another go at decriminalization of marijuana and approving medical marijuana for PTSD patients. Other notable legislative defeats include: Dead – House Bill 2754 would have limited the instances when a police officer could arrest for a fine only or ticketable offense. A campaign of misinformation by CLEAT led to the demise of this bill despite two years of bipartisan effort. Dead – House Bill 1139 – which would have added standards in evaluating whether a person on death row is intellectually disabled or not in light of the 2002 United States Supreme Court decision prohibiting the execution of individuals with intellectual disabilities. Without legislation to address this issue, individuals on death row must have their cases work through the court system again if they raise an issue of intellectual disability – delaying executions and increasing costs.

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In the past  months, hundreds of inmates have been released early from federal prison. Some of the released prisoners were elderly or ill, but most were just non-violent offenders who have exhibited good behavior behind bars.

They are the early beneficiaries of the First Step Act, a new law aimed at ending mass incarceration, reducing recidivism, and improving prison conditions. The law marks a significant turning point in federal criminal justice reform. Here’s an overview of the First Step Act, who is impacted by this federal prison system reform, and what to expect going forward.

What is the First Step Act?

The First Step Act is an acronym for the Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act. It is expected to change the lives of an estimated 30 percent of the federal prison population over the next decade by slashing sentences, curbing mandatory minimums, improving prison conditions and reducing recidivism rates. The Act was approved by both the House of Representatives and the Senate and was signed by the President late last year. It was one of the few recent bipartisan bills passed in Congress – a notable feat in a political era marred with polarization and gridlock.

Who Does First Step Act Impact?

The First Step Act does not affect the vast majority of prisoners in the U.S. It only applies to inmates in federal prison. It doesn’t apply to prisoners convicted of state crimes and housed in state prisons. Of the 2.1 million people incarcerated in U.S. prisons, only 180,000 are federal inmates.

Because it only affects the federal prison population, the Act itself has a relatively limited view in the larger criminal justice scheme. It doesn’t have sweeping effects across the criminal justice system, but attempts to move the needle towards less draconian sentencing structures.

What Does the First Step Act Do?

The First Step Act focuses on rehabilitation, rather than punishment, and reforms some of the nation’s harshest sentencing policies. It also gives more protections to women inmates and prepares inmates for life after prison. Here are some of the major provisions of the First Step Act:

• Rewards Good Behavior.A major hallmark of The First Step Act is to initiate time credits for good behavior and participation in vocational and rehabilitative programs. In essence, prisoners will be able to participate in programs offered by the prison in order to reduce their incarceration time. In an effort to bolster these programs, the Act accounts for increased funding for vocational and rehabilitative programs — $50 million per year over the next five years — which will create greater access to education for incarcerated people seeking to prepare for success following their release.
• Allows Sentences to Be Served Outside of Prison.The statute allows for certain prisoners to serve the last portion (not to exceed to 12 months) of their sentence at home. In some instances, inmates facing a terminal illness may also qualify for release to a palliative care facility as an alternative to prison.
• Shortens Minimum Sentences for Non-Violent Drug Offense.Perhaps the largest change promulgated by the First Step Act is the change in sentencing structures. The Act eradicates an automatic life sentence for a person convicted of their third felony drug offense. Now, in lieu of a mandatory life sentence, a person with a third “felony drug offense” or “serious violent felony” will have a minimum 25-year sentence. In conjunction with this change, the First Step Act also changes the minimum sentence of a second felony drug conviction. As opposed to the previous regime where a person who was convicted on their second felony drug offense would receive a minimum 20-year sentence, the First Step Act reduces that number to 15 years. This reduction also applies to those with a “felony drug offense” or “serious violent felony.”
• Eliminates stacked sentences for a first-time firearm violation.The First Step Act reduces the prosecutor’s ability to stack charges for anyone being charged under U.S.C. § 924(c) with their first criminal proceeding for a firearm violation. Historically, a prosecutor could stack charges for any crime where a firearm was involved and the defendant would be subject to more jail time. Now the defendant cannot receive a stacked charge unless they have previously been charged under § 924(c).
• Eases Mandatory Minimum Sentences.The First Step Act has also broadened the scope of defendants who may be eligible to receive a sentence below the statutory minimum. This is known as a “safety valve” where the judge has discretion to give a sentence below the statutory minimum to an individual who qualifies.

• Reduces the Sentencing Disparity Between Crack and Powder Cocaine.While the sentencing changes mentioned above apply going forward, the First Step Act made a substantive change to the Fair Sentencing Act of 2010, which will have retroactive effects. The Fair Sentencing act of 2010 reduced the mandatory sentencing requirement for people in possession of crack cocaine. However, the law, at the time of its enactment, did not apply retroactively. The First Step Act allows the First Sentencing Act to be applied retroactively. This means many people who are currently in prison for possession of crack cocaine, may use this portion of the Act to reduce their sentence or petition for their release.
• Bans Shackling of Pregnant Females.While women incarcerated in the federal system makeup only 7 percent of the total population, the First Step Act also aims to keep their needs in mind. Prior to the First Step Act, pregnant female inmates were required to be shackled before, during, and after giving birth. Now, with a few exceptions, pregnant female inmates will not be restrained from the date their pregnancy is confirmed until postpartum recovery has concluded. The First Step Act also mandates that feminine hygiene products be provided to inmates.
• Keeps Inmates Close to HomeThe First Step Act requires the Bureau of Prisons to house federal prisoners within 500 miles of their family – as long as a facility is available to meet their level of security or medical needs. This ensures that the family members of federal prisoners will have greater access to visit the members of their family that are incarcerated and removes any geographic obstacles that may be in existence.

What’s the Second Step Act?

In April 2019, President Trump announced plans for a Second Step Ac, which will focus on helping prison inmates find employment. This chapter of legislation aims to lower unemployment among former inmates to single digits within five years. And while these are all steps in the right direction, there is still much work to be done in regard to federal prison reform.

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