Kristin Etter, David Gonzalez, Allen D. Place Jr., & Patricia Cummings 2015-08-26 00:42:04
Guns, the grand jury system, and marijuana decriminalization measures dominated much of the criminal justice arena this legislative session. The bipartisan criminal justice reform movement that was born out of and coalesced with the Michael Morton Act last session continued during the 84th Texas Legislature. Interestingly, the left and the right came full circle during this session and found agreement on many issues. The many high-profile police shootings across the country and the nationwide push for grand jury reform also made its way to Texas and resulted in some important changes aimed at making the process fairer and more transparent. Gun Legislation HB 910, the open-carry bill, allows for open carry of firearms by licensed holders in Texas. While it seemed there was hardly any vocal opposition to the bill this session, the big debate came toward the end and involved an amendment that would have prevented police from asking anyone openly carrying for proof of their required license. This amendment was supported by some Democrats and tea party Republicans due to concerns about racial profiling and police being able to stop law-abiding carriers. Ultimately, however, the bill passed without the amendment. Beginning January 1, 2016, individuals with a concealed carry license will be able to carry handguns openly (under current law, individuals can already openly carry rifles and shotguns). SB 11, the campuscarry bill, allows holders of concealed handgun licenses to carry guns on college campuses. However, the version of SB 11 that passed allows for universities and colleges to establish their own rules and regulations regarding storage and carrying of concealed handguns. HB 554 prohibits a peace officer from arresting a concealed handgun carrier for possessing a handgun in an airport as long as the person immediately exits the screening checkpoint after notification. Grand Jury Legislation HB 2150 abolishes the current grand jury “key-man” or “pick-a-pal” method, wherein a judge selects three commissioners to be in charge of choosing persons to serve on a grand jury. Instead, HB 2150 utilizes the random selection method for grand jurors like that already in use to pick petit jurors. The aim of this legislation is to increase transparency and curtail concerns over potential conflicts of interest. Marijuana Legislation HB 2165 and SB 339 were important milestones for the marijuana legalization movement. Rep. David Simpson, a Republican of Longview, spearheaded what has become a challenge to big government by tea party Republicans by filing HB 2165, which would have legalized marijuana. With bipartisan support, the House Criminal Jurisprudence Committee actually voted the bill out favorably, but it did not make it to the floor. However, SB 339, which did pass, legalizes the medical use of cannabidiol (frequently called CBD), a non-intoxicating marijuana compound that is used by some who have epilepsy. SB 173 criminalizes all strains of synthetic marijuana, which is evidence that while the legislative tide is slowly shifting in favor of real marijuana, it is moving in the opposite direction for the substance marketed as K2 or Spice. Synthetic marijuana has been causing mayhem in some emergency rooms that are seeing increases in patients overdosing and suffering from severe reactions after ingesting it. The problem with making synthetic marijuana illegal in previous years stemmed from the fact that chemists would continually tweak the chemical compounds to skirt the law. However, SB 173 covers the 12 potential cores and ring structures from which synthetic compounds can be made. With all of these now illegal, the bill aims to close the loophole by banning the manufacture, possession, use, and sale of all synthetic marijuana. Decriminalization and Criminal Justice Reform Legislation HB 2398 decriminalizes truancy and makes skipping school a civil—rather than a criminal—offense. After years of controversy surrounding the criminal prosecution of students for school absences, the bill also creates truancy prevention programs and civil truancy courts. HB 1396 formally codifies the “rule of lenity,” which requires courts to resolve statutory questions of ambiguity in favor of the defendant for criminal offenses that are found outside of the penal code. The bill passed with two important amendments that increased the standard value ladder thresholds for theft offenses (increasing the values for classification level of offense) to properly account for inflation, as well as requiring peace officers to obtain a warrant to search a person’s cellphone and other wireless communication devices. HB 3724 clarifies that defendants may have their convictions reexamined in a post-conviction proceeding if the expert who testified at trial later rejects the testimony based on new knowledge and scientific improvements. SB 1743 expands the jurisdiction of the Office of Capital Writs to include representation of defendants whose convictions were based on forensic errors or junk science. HB 48 creates the Timothy Cole Exoneration Review Commission to investigate wrongful convictions and to recommend changes to prevent further wrongful convictions in Texas. SB 1902, which has been called the second chances bill, allows people with certain low-level misdemeanor convictions to petition the court to have their record sealed. Other Highlights SB 1135 makes it a crime to disclose or promote “revenge porn.” Despite many concerns by defense lawyers over First Amendment protections, the bill not only provides criminal penalties for this new offense, titled Unlawful Disclosure or Promotion of Intimate Visual Material, but also establishes civil remedies that are targeted to websites that promote and publish the material. HB 1061 provides an easier way to prosecute people for “doxing”—the public release of identifying and personal information—of police officers. It amends the current crime of interference with public duties by creating a rebuttable presumption that a person is interfering with a peace officer if he or she intentionally disseminates the home address, home telephone number, or Social Security number of the officer or a family member of the officer. HB 207 makes it a crime to commit voyeurism, which is when a person, with the intent to arouse or gratify a sexual desire, observes—without consent—another person in a dwelling or structure where that person has a reasonable expectation of privacy. HB 189 eliminates the statute of limitations for sexual assault if probable cause exists to believe that the defendant has committed the same or a similar sexual offense against five or more victims. HB 1690 creates a special process for the prosecution of public officials and state employees accused of prohibited offenses including ethics violations. It moves prosecution of these cases from the Travis County Public Integrity Unit to the official’s home county despite where the crime may have occurred. HB 1690 also sets up a special preliminary investigative process that must begin with the Texas Rangers before removal to the official’s home jurisdiction. SB 158 provides $10 million in grants to encourage local police agencies to equip peace officers with body cameras and requires departments that accept funding to follow specified rules. Conclusion The 84th Texas Legislature made incremental but important steps toward reforming our criminal justice system. Our state still has a long way to go to address systemic problems, so we remain hopeful that the bipartisan efforts of reform will continue into the interim as well as future legislative sessions.
Published by State Bar of Texas. View All Articles.
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