CRIMINAL LAW

 

The 79th Texas Legislative Session addressed a lot of criminal law matters, including changes to criminal law and procedure.  Three significant laws were vetoed by the Governor (H.B. 3152, H.B. 2193, and S.B. 1195), but several other important laws were ultimately enacted.  This article is intended to provide a brief overview of some of the more interesting and/or important changes.  To review the text of any of the statutes noted herein, follow this link:  http://www.capitol.state.tx.us/

 

 

1.              Expunctions and Motions for Nondisclosure.  S.B. 166 makes it clear that no agency may maintain records which were ordered expunged.  The DPS is specifically required to apply this new law to those files and records maintained under a previous version of the expunction statues.  Service for expunction petitions can be done via e-mail, beginning on 9/1/05 (H.B. 413).

 

2.                  Erroneous “Driving While a License is Invalid” Citations.  Drivers falsely arrested for driving while a license is invalid due to erroneous record-keeping will be entitled to a free ex parte expunction of the arrest under H.B. 3093. (That’s “free” with regard to filing fees & court costs. – The lawyer is still going to charge!)  I have had several clients who have been charged with erroneous “Driving While License is Invalid” citations recently, and it appears that this is a state-wide trend.  The Legislature has attempted to help Texans who fall victim to errant State record-keeping to have a means for clearing their record, and also avoiding the license surcharge that they would otherwise have to pay.

 

3.                  Hot Topics in Probation Reform and Punishment.  These miscellaneous laws were passed, addressing probation reforms and punishment changes:

 

·                    Juries are now empowered to give probation to state jail felons (except for drug offenders who get automatic probation. (H.B. 1759)

·                    Defendants must serve 72 continuous hours in the county jail as a condition of a second DWI probation (H.B. 157)

·                    Judges can impose 180 days (previously limited to 90 days) on state jail felons in the county jail as a condition of probation (H.B. 1759)

·                    At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor, and the conviction is no longer considered a felony but a misdemeanor (H.B. 2296)

·                    A trial court can order a punishment-only retrial where a mistrial occurred at the punishment phase (H.B. 3265).

·                    Judges can stack sentences for multiple counts of intoxication assault, improper photography or visual recording, or possession or promotion of child pornography (H.B. 904)

·                    Defense attorneys are now entitled to at least 48 hours before sentencing to review pre-sentence reports (H.B. 550)

 

4.                  Assault and Protective Orders. 

·                    An assault can be enhanced if it was committed against a member of the defendant’s family, household, or a person with whom the defendant has a “dating relationship” and if it is established during the trial that the actor had been previously convicted of an assaultive offense against a person within one of these categories (S.B. 91).

·                    Protective order periods are extended to 91 days if the assault involves use or exhibition of a deadly weapon.  A protective order for an assault without a deadly weapon would remain in effect for up to the 61st day, but not less than 31 days after the date of issuance.  After notice and a hearing, the issuing court may modify all parts of an order if it is unworkable, a modification will not put the alleged victim at greater risk than did the original order, and no one would be endangered (S.B. 1275).

 

5.                  Motions for Non-Disclosure.  The time periods for filing of motions for non-disclosure have been scaled back:  five years for felony offenses and two years for misdemeanors (H.B. 3093).

 

6.                  Intoxication Offense Issues.  The Texas Legislature has decided to once again get tough on Bubba, by passing a slew of new laws that affect Bubba’s love of a cold brew.  Some of the most interesting new laws in this area include:

·                    Intoxication offenses can be enhanced despite the last conviction being more than 10 years old (H.B. 51).

·                    DWI with a child in the car can be used for enhancement purposes (H.B. 51)

·                    A car interlock is now required for those who blow a 0.15 or more (H.B. 51)

·                    Defendants must serve 72 continuous hours as a condition of DWI (H.B. 157)

·                    DWI felons can forfeit their vehicles (H.B. 2275)

·                    Showing a fake ID is a Class A Misdemeanor, unless the actor is a minor trying to get an alcoholic beverage, in which case it is a Class C offense and the actor cannot be prosecuted for a Class A (H.B. 699).  Why the Texas Legislature has decided to go light on minors who are using a fake ID to secure alcohol is a mystery to me. – Since the legislature is cracking down on minors who consume or possess alcohol, you would think that they would similarly crack down on the underlying efforts to acquire alcohol.  If I ever figure out the mystery behind this paradox, I will let you know!

·                    A minor’s failure to show proof that he or she attended an alcohol awareness program approved by the Texas Commission on Alcohol and Drug Abuse within the prescribed period results in a one-year license suspension if previously convicted of an alcohol-related offense.

·                    FURNISHING ALCOHOLIC BEVERAGE TO A MINOR RESULTS IN A 180-DAY DRIVER’S LICENSE SUSPENSION TO THE ADULT (H.B. 1357).  This addresses one of my personal pet-peeves!  Let’s wait and see if there is any actual enforcement to follow this new statute!

 

7.                  Guns and Weapons.  The term “convicted” is redefined for purposes of carrying a concealed handgun, so that people who had a deferred adjudication more than 10 years ago can get a concealed-handgun license (H.B. 1831).  Prosecutors can now carry guns into the courthouse (H.B. 211).  And, a person is presumed to be “traveling” under the unlawfully carrying of a weapon statute if the person is:  (1) in a private motor vehicle; (2) not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic; (3) not otherwise prohibited by law from possessing a firearm; and (4) not a member of a criminal street gang, as defined by Section 71.01 (H.B. 823).

 

8.                  Online Solicitation of Minors.  Under a new state law, an adult commits a state jail felony offense of “online solicitation of a minor” if with the intent to arouse or gratify the sexual desire of any person, intentionally communicates over the Internet or by e-mail with a minor in a “sexually explicit” manner.  “Fantasy” is no defense.  It is a defense that the two are married (so e-mail “sex” and presumably “phone sex” between married folks is still OK) or that the actor was not more than three years older than the minor and the minor consented to the conduct.  The offense becomes a second-degree felony if the minor is less than 14 years old and the actor believed the minor to be less than 14 years-old (H.B. 2228).

 

9.                  Forfeitures.  Vehicles used in a fourth DWI can be forfeited (H.B. 2275).  Vehicles used in the commission of a sexual performance by a child or a criminal solicitation of a minor can be forfeited (H.B. 840).