Interim Update: May 2016

            With the holiday weekend almost upon us, we thought we’d send this out a bit early. Remember, there are only (only?) 165 more days until the general election in November. It’s going to be a long, hot, crazy summer!

 

Primary run-off results

            Most of the next Legislature is set after this week’s primary runoffs. According to TXElects.com, only four Senate candidates (out of 16) and 54 House candidates (out of 150) face an opponent from the other major political party in the fall, while 20 of the 31 Senators are unopposed and a majority (77 of 150) of the incoming House is unopposed. (Federal races are no better, there being only one truly competitive district in the entire state [out of 36].) Thus, you should not expect any earth-shattering political changes from the Legislature next session—the forecast is for more of the same.

            Your local newspaper (if you still get one) can fill you in on what happened at the state level, but for those of you interested in down-ballot races, here is the latest information we have:

Court of Criminal Appeals Place 2: Harris Co. District Judge Mary Lou Keel (R) defeated Collin Co. District Judge Ray Wheless and will face incumbent Larry Meyers (D) in November.

Court of Criminal Appeals Place 5 (Cheryl Johnson retiring): Tarrant Co. defense lawyer Scott Walker (R) defeated Williamson Co. ADA Brent Webster and will face Bexar Co. defense lawyer Betsy Johnson (D) in November.

24th DA (Dewitt/Goliad/Refugio) (Mike Sheppard retiring) (R): ADA Robert Lassmann defeated Bee Co. ADA Terry Breen; no D opponent.

34th DA (El Paso/Hudspeth/Culberson) (D): Incumbent Jaime Esparza defeated Yvonne Rosales; no R opponent.

106th DA (Dawson/Gaines/Garza/Lynn) (R): Philip Mack Furlow defeated incumbent Mike Munk; no D opponent.

110th DA (Floyd/Dickens/Motley/Briscoe) (Becky McPherson retiring) (R): Lubbock ACDA Wade Jackson defeated Rob Hamilton; no D candidate.

Liberty County Attorney (Wes Hinch retiring) (R): Liberty ADA Matthew Poston defeated Mark Beausoleil; no D opponent.

Palo Pinto County Attorney (Phil Garrett retiring) (R): Jimmy Ashby defeated Keri Walden; no D opponent.

Pecos County Attorney (D): Former 83rd DA Jesse Gonzales, Jr., defeated incumbent Ori White and will face Frank Lacy (R) in November.

Willacy County & District Attorney (D): Annette Hinojosa defeated incumbent Bernard Ammerman (who is the sitting TDCAA President); no R opponent.

 

DNA mixture update

            The Texas DNA Mixture Review Project being run out of the Harris County Public Defender’s Office is in the process of contacting prosecutors throughout the state regarding DNA mixture cases that may need further review. In order to facilitate that process, they would like to have the name and contact information of the person in each felony prosecutor’s office who will handle any of those potential cases. The information may be sent to Bob Wicoff at bob.wicoff@pdo.hctx.net. You may be contacted about cases in your county by Bob or one of three other lawyers working for that project: Scott Ehlers, Victoria Erfesoglou, or Betsy Stukes. To date, we have heard nothing but positive feedback about the cooperation on both sides, and this may be a good way to continue that trend. If you have further questions, contact Rob Kepple.

 

Interim hearing recap

            It was a busy month for committee hearings. Here are some hot takes:

  • The Joint Legislative Committee on Border Security took testimony on the current status of Texas’ border security efforts. Of particular note was a suggestion from Sen. Sylvia Garcia (D-Houston) that OAG should request funding next session to station its own human trafficking prosecutors throughout the state to help local prosecutors who cannot handle those cases on their own. There had not been any testimony to that point that such a problem existed, and Committee Co-Chairman Dennis Bonnen (R-Angleton) appeared sensitive to the fact that they don’t need to propose solutions to problems that don’t exist, but we will continue to watch for any similar complaints coming from Austin. To our knowledge, the current arrangement with OAG’s human trafficking unit works just fine, but if you feel differently, let us know.
  • House Public Education considered the increasing problem of improper teacher-student relationships and how to stop it. No solution magically appeared at the hearing, but representatives from Children’s Advocacy Centers of Texas (CACTX) did encourage the Legislature to make school districts refer cases to law enforcement rather than investigate their own employees under circumstances that may be embarrassing to that ISD. In addition, a representative from the Texas Education Agency (TEA) expressed concern that prosecutors do not always require defendant teachers to give up their teaching certificates or, if they do, are not informing TEA of that plea condition. That’s not something likely to be legislated, but it may be a good reminder for you to adopt an office policy in those cases and be sure your staff follows through on it.
  • House Corrections held a joint hearing with House Criminal Jurisprudence on the topic of probation and parole fines and fees and related revocations. The members learned that in FY2015, roughly 24,000 probationers were revoked: 50 percent of those revocations were for new offenses, 42 percent were for absconding, and only 8 percent of probation revocations were for other technical violations. Furthermore, none of those revocations were solely for delinquent fees or related costs (which is prohibited by statute). Representatives from the Legislative Budget Board estimated that if the Legislature banned revocations based only on technical violations (as suggested by some reformers), the state could potentially save $24.5 million in avoided prison costs; however, at least half of those “savings” would be eaten up by the societal costs of new crimes committed by those unrevoked offenders. The cost of eliminating supervision fees altogether—which is yet another proposed “reform”—would be upwards of $650 million. Neither idea is likely to gain much traction next session, but we will continue to watch this issue for you.
  • Senate Criminal Justice discussed pre-trial release and pre-trial diversion, with much of the testimony centering on money. Counties lack the money (or the will) to fund robust pre-trial supervision in lieu of bonds; indigent offenders lack the money to make bail or to pay pre-trial supervision/diversion fees; and the state lacks the money (or the will) to help with either situation. Nevertheless, Chairman John Whitmire (D-Houston) made it clear that both topics would be a priority for him next session. At the committee’s invitation, our own Shannon Edmonds encouraged the committee to resist the urge to mandate or micro-manage the use of pre-trial diversion, an idea which was favorably received—however, the chairman did stress the importance of prosecutors being more involved next session when the Legislature takes up the controversial issue of pre-trial release. What the eventual solution may be is anyone’s guess, but if this issue interests you, stay in touch with Shannon so he can include you in that discussion.
  • House Judiciary & Civil Jurisprudence heard about the continuing challenge of human trafficking. Advocacy groups expressed an interest in following up on last session’s bifurcation of the prostitution offense with new punishment enhancements for Johns, new punishment reductions (or flat-out elimination of punishment) for Janes, and increased data collection from local agencies (including prosecutors). OAG human trafficking chief Kirsta Melton also suggested that the Legislature expand the civil racketeering law created exclusively for that office back in 2013 because it apparently hasn’t been much used to date—which raises the question (once again) whether that legal tool might find greater use if local prosecutors could employ it as well.
  • House Government Transparency & Oversight held a joint hearing with the House Select Committee on Emerging Issues in Law Enforcement on the topic of emerging technologies. Privacy advocates urged the committee to limit law enforcement’s use of the technology they don’t like (license plate readers and cell site simulators [aka Stingrays]) while further mandating the use of technology they do like (body cams). Witnesses from the Harris County Sheriff’s Office provided useful examples to the committee of the many unanticipated challenges raised by the use of the latter, but there was no sign from committee members that any implementation help would be forthcoming from Austin just yet.
  • House Government Transparency & Oversight also held a hearing on open records abuses on both ends—by requestors and by responding (or non-responding) governmental entities. The committee members gave no clear indications of what they might do on this front next session, but it sure would be nice if they gave y’all some relief from the abusive open records requests you get.

Upcoming hearings

            The schedule of interim hearings will now slow down for the summer (legislators have beach condo timeshares too, you know). To date, the only relevant interim committee hearings posted for June are the following:

 

House Select Committee on Mental Health
Thursday, June 2, at 10:00 a.m., State Capitol Extension, Room E2.016
Topic: Mental/behavioral health care services related to law enforcement/criminal justice 


Senate Committee on Health & Human Services
Thursday, June 16, at 9:00 a.m., State Capitol, Senate Chamber
Topic: Criminal justice treatment and diversion of offenders with mental illness

 

If you have questions about any of these or any other hearings, call or email Shannon for more information.

 

Quotes of the month

“They say I’m stupid, but I have the right to be stupid. I have the right to say what I believe.”
            —Mary Lou Bruner, former kindergarten teacher and recent (losing) Republican run-off candidate for the State Board of Education, whose campaign speeches seemed to be based on things she read in chain emails or on Facebook.

 

“It’d be a ticket with six former wives, kind of like a Henry VIII thing. They certainly understand women.”
            —Ed Rollins, longtime GOP strategist now working for a pro-Trump Super PAC, on the possibility that Mr. Trump might name ex-House Speaker Newt Gingrich as his running mate.

 

“How do you stop men from demanding sex?”
            —State Rep. Senfronia Thompson (D-Houston), during a hearing on human trafficking and the related demand for prostitution.

 

“There is increased crime, sometimes violent crime, associated with legalization of marijuana. … If cash is the only way to acquire marijuana, crime follows cash.” 
            —Arapahoe (CO) County DA George Brauchler, on the increasing number of marijuana-related murders in his jurisdiction.

 

“I’ll conclude with what I wish were a joke, but unfortunately it’s not. The Obama administration has become so solicitous towards criminals that we’re not supposed to call them criminals at all. Now the new term is ‘justice-involved individual.’ I’m not joking, this is the administration’s new term for criminals: ‘justice-involved individual.’ That alone is a crime against the English language. But it’s much worse: It reflects the dangerous mindset that criminals are victims, that the justice system somehow happened to them. ‘They didn’t commit a crime, they became “involved” in the justice system.’ Let me say again: Criminals are not victims. Criminals are criminals. Victims are victims.”
            —U.S. Sen. Tom Cotton (R-AR), concluding a recent speech on crime and justice. To read his recent remarks on the fallacies of the “overcriminalization” movement, click here.

 

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