Interim Update: November 2015

            In light of our Elected Prosecutor Conference coming so quickly on the heels of the Thanksgiving break, we are sending out this monthly update a little earlier than usual. It’s packed full of good information, so be sure to read it before this week’s turkey-and-stuffing-and-football-induced napping!

 

Reminder: TDCAA Annual Business Meeting

            TDCAA’s Annual Business Meeting will take place in conjunction with the 2015 Elected Prosecutor Conference. The meeting will be held at 5:00 p.m. on Wednesday, December 2, at the La Cantera Hill Country Resort in San Antonio. The principle business at hand will be to elect the TDCAA leadership for 2016. Contact Rob Kepple at 512/474-2436 or [email protected] if you have any questions.

 

Cell phone encryption

            An emerging technological issue in law enforcement involves Apple and Google encrypting their latest phones with technology that makes their contents inaccessible to lawful searches. Cy Vance, the Manhattan (NY) DA, has taken the lead at the national level in seeking legislation requiring manufacturers to permit “back door” access to their devices for lawful searches. For more on that office’s efforts—including news articles, research, surveys, and a handy PowerPoint presentation—visit http://manhattanda.org/smartphone-encryption. This topic will be discussed at the Elected Prosecutor Conference, and we will summarize the results in next month’s update.

 

Elected Prosecutor Conference bonus

            For you golfers who are attending the Elected Prosecutor Conference in San Antonio, we have negotiated some discounted tee times ($69 + tax) at La Cantera’s Resort Course the day before the conference begins, starting at 12:30 p.m. on Tuesday, December 1 (sunset that day is at 5:34 p.m., in case you were wondering). We only have THREE spots left, so if you are interested in playing, contact Shannon ASAP to reserve your spot.

 

Update on guns in courthouses

            As you might recall, two different district attorneys made two similar (but not identical) requests to the attorney general to determine the scope of the term “premises” as it relates to excluding firearms from courthouses under Penal Code §46.03. Those requests are AG Op. RQ-0040-KP and RQ-0051-KP. While the general’s lawyers take their time pondering the question, Governor Abbott’s lawyers have weighed in on the side of gun rights’ supporters, arguing that the only courthouses that qualify as completely gun-free zones are those that contain courts and court-related offices and nothing else. Under their legal analysis (which can be read by clicking here), “premises” may be defined by Penal Code §46.035(f)(3) to mean “a building or portion of a building,” but that definition means “portion of a building” only in the context of gun regulation. (No legal authority is cited for that position, but … whatever.) Therefore, if a courthouse includes offices for any non-court entity—a county tax assessor-collector, auditor, treasurer, sheriff, prosecutor, etc.—then CHL holders may carry their concealed handguns anywhere in the county building except into individual court chambers or offices. (And come January 1, 2016, this will include licensed open carry, too.) If this theory is accepted and followed, it could lead to counties incurring substantial costs to retrofit their courthouse security plans, so you might want to alert your commissioners to this possibility. The attorney general has until January 22, 2016, and March 9, 2016, respectively, to issue an opinion in response to the two filed requests, and anyone may submit a brief to that office on those requests, but if you wish to do so, don’t delay—the opinions could be issued at any time.

 

Interim charges

            Last month it was Senate interim charges; this month, Speaker Straus gave roughly 150 homework assignments to various House committees. Here are some highlights:

            Appropriations: Evaluate the effectiveness of DPS border security expenditures.

            Corrections: Study the effectiveness of probation/parole fees, and study technical violations as a driver of probation/parole revocations (joint charge with Criminal Jurisprudence); identify successful re-entry programs that reduce recidivism; determine state costs for incarcerating non-violent drug offenses and identify cheaper alternatives that reduce the incarceration rate for those offenders.

            County Affairs: Identify potential gaps in counties’ cybersecurity policies; review current pretrial services and bonding practices and assess their effectiveness (joint charge with Criminal Jurisprudence); study issues related to the Internet publication of mug shots.

            Criminal Jurisprudence: Identify best practices in preventing family violence; recommend improvements in asset forfeiture procedures; identify best practices for indigent defense and the operation of law school innocence projects.

            Energy Resources: Improve the investigation and prosecution of oilfield theft.

            Government Transparency & Operation: Study issues related to public information held outside of the custody/control of the governmental body by current or former government officers/employees; review the need for greater regulation of criminal records disseminated by public entities (joint charge with Homeland Security & Public Safety); study the impact of emerging technologies used by law enforcement that collect potentially public information.

            Homeland Security & Public Safety: Review commercial motor vehicle enforcement and penalties.

            Human Services: Examine DFPS measures dedicated to eliminating child abuse and fatalities within the foster care system; recommend ways DFPS can identify, recover, serve, and care for youth victims of human trafficking who are in foster care (joint charge with Juvenile Justice & Family Issues).

            Insurance: Consider changes to workers’ compensation insurance fraud prosecutions.

            Judiciary & Civil Jurisprudence: Explore the feasibility of tracking the demand for commercial sex and of creating a statewide trafficking reporting system; consider ways to improve jury service response and participation.

            Juvenile Justice & Family Issues: Increase community and regional options for keeping youth closer to home instead of commitment to TJJD; study raising the age of juvenile jurisdiction.

            Licensing & Administrative Procedure: Determine if criminal penalties related to occupational licensure are necessary; examine issues relating to powdered alcohol.

            Public Education: Review current criminal penalties for inappropriate teacher-student relationships and recommend ways to protect students from those relationships.

            Select Committee on Emerging Issues in Texas Law Enforcement: Study body camera best practices and determine if changes are needed to the minimum standards established by SB 158; address issues relating to the use of new information collection and sorting technologies.

            … And these are just a sampling of the full slate! House committees will start digging into these issues soon, and we will try to keep you updated on the most important interim hearings as they occur.

 

New PIU goes live in three … two … one …

            If you came to one of our legislative update courses this past summer, you might recall that the new law for investigating and prosecuting certain public officials doesn’t take effect until DPS officially creates a Public Integrity Unit under the aegis of the Texas Rangers. Well, that day is December 1, 2015, according to these notices in the Texas Register: http://www.tdcaa.com/announcements/new-public-integrity-unit-officially-created. We’ll keep this archived on our website, but remember this to avoid getting tripped up by any technicalities in your future public integrity prosecutions.

 

Mental health resources

            The Department of State Health Services has published a new “Guide for Alternatives to Inpatient Mental Health Treatment” that is now available on our website at http://www.tdcaa.com/announcements/mental-health-guide-tdshs. Download and review it for yourself as needed.

 

Free protective order manuals and training

            In December, each office will receive one free copy of the 2015 Protective Order manual, courtesy of TDCAA’s Violence Against Women Act (VAWA) training grant. The manual contains information on intake and victim services as well as sample protective order pleadings, orders, and forms (for temporary POs, final POs, and magistrate’s orders for emergency protection). The manual has been used in TDCAA’s free protective order trainings and was written by Beth Barron, Jennifer Varela, and Jane Waters from the Harris County District Attorney’s Office. The next free protective order training will be held from 10 a.m. to noon on Wednesday, Dec. 4, at the La Cantera Resort in San Antonio, in conjunction with TDCAA’s Elected Prosecutor Conference. Online registration for that class is now closed, but walk-in registrations will be accepted.

 

Quotes of the week

“That military exercises we were doing in Texas were designed to begin martial law so that I could usurp the Constitution and stay in power longer. Anybody who thinks I could get away with telling Michelle I’m going to be president any longer than eight years does not know my wife.”
            —President Barack Obama, listing an Operation Jade Helm-related rumor as his favorite conspiracy theory.

 

“In real life, when someone is upset or worked up over something, you try to calm them down. Politicians reach for the gasoline.”
            —Ross Ramsey, executive editor of the Texas Tribune, in a recent editorial about the politics of the Syrian refugee crisis.

 

“There’s not a lot of romance in ’em.” 
            —Texas Secretary of State Carlos Cascos, providing an explanation for low turnout for the seven constitutional amendments on the ballot earlier this month.

 

“The last two primary seasons have not been fun.… I think we as a state better wake up or we’re not going to be able to attract good people to come serve.”
            —State Rep. John Otto (R-Dayton), House Appropriations chairman, explaining his decision not to run for re-election.

 

“We’re hiring from the human race, and once in a while, the human race is going to let us down.”
            —Delaware County (OH) Sheriff Russell Martin, describing the difficulties of screening job applicants for potential sexual misconduct. A recent AP investigative report found that almost 1,000 officers nationwide have been de-certified as peace officers for sex-related misconduct in the past six years.

 

“It looks a lot like the concentration of capital that we have seen with Big Alcohol and Big Tobacco. I think that’s problematic for cannabis-law reformers, because it plays into our opposition’s strongest argument.”
            —Alison Holcomb, advocate for legal recreational marijuana usage, discussing the many ironies faced by the legalization movement, as quoted in New York Magazine’s article entitled “Willie Nelson’s Crusade to Stop Big Pot.”

 

“[I]nitiating marijuana use after treatment was associated with worse PTSD symptoms, more violent behavior, and alcohol use. Marijuana may actually worsen PTSD symptoms or nullify the benefits of specialized, intensive treatment. Cessation or prevention of use may be an important goal of treatment.”
            —The conclusion of a recent Yale School of Medicine study on the use of marijuana to treat post-traumatic stress disorder (PTSD), a practice that has been legalized in at least nine states.

 

“Your judgment is what got you here to start with. Let’s try my judgment for a while.”
            —Gerry Morris, Austin criminal defense lawyer and current president of the NACDL, on what he tells clients who are hard to deal with.


“What are they going to say when the crime rate goes back up?”
            —Bob Bushman, president of the National Narcotics Officers’ Associations’ Coalition, referring to politicians who are jumping on the bipartisan criminal justice reform bandwagon.

 

“Everybody advised me not to do it, but who would best represent me other than me? I know the most about this case.”
            —State Rep. Ron Reynolds (D-Missouri City), explaining why he was representing himself in his barratry trial in Montgomery County.

 

“I’m firing my lawyer.”
            —Reynolds, upon being convicted on five counts of barratry. A jury subsequently sentenced him to the maximum—one year in jail and a $4,000 fine—but Reynolds plans to appeal the conviction while he runs for re-election.

 

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