January 27, 2012

Happy belated New Year, everyone! Is it just us, or does New Year's Day seem like an eternity ago? The New Year is not even four weeks old and we're already behind on work. That just ain't right.

Primary election date still TBA
Still no definitive news on this front. The Ds and Rs and other legal participants are set to appear before the San Antonio panel this afternoon to work on a compromise, but the clock is ticking on any hope of a consolidated primary on April 3. If the fast-approaching deadlines for that date are blown, then who knows what will happen—split primaries (presidential voting on day, other offices later?), June primaries, etc., are all on the table. For those of you up for re-election this time around ... you have our condolences! We'll issue a special report when an actual, verifiable decision is made on an election date and the related (re-) filing period. In the meantime, keep checking TDCAA's website and Twitter feed for the latest breaking news on this front.

CJIS reporting and grants
As we told you last month, the Governor's Criminal Justice Division (CJD) notified grantees that as of September 1, 2012, it would penalize counties that do not have a 90-percent or better case disposition completeness rate for 2006–2010 by making governmental agencies in those counties ineligible for Justice Assistance Grants (JAGs). And, effective September 1, 2013, any public or private entity in one of those counties will also be ineligible to receive those grants. In an effort to get a handle on the situation, the Texas Association of Counties (TAC) held a constructive meeting earlier this week with all the various stakeholders (including CJD, DPS, and yours truly).  Several changes are in the works to make disposition reporting more accurate; for details, contact Shannon at TDCAA. There will be at least one more meeting at a later date (TBA). Until then, thanks for your patience as we work toward a solution to this problem.

Abortion regulation back on track (for now)
A panel of the U.S. Fifth Circuit has given Texas the green light to enforce House Bill 15 imposing new requirements on abortion providers (sonograms, etc.) while the constitutionality of the law is litigated in a federal district court in Austin. Included among the changes wrought by that new law is a Class C misdemeanor punishable by a fine of up to $10,000 (Health & Safety Code §171.008). The plaintiffs challenging the new law succeeded in certifying as a defendant class all district attorneys and county attorneys in Texas who exercise misdemeanor jurisdiction, with Travis County Attorney David Escamilla as the representative for that class. For now, those of you who are members of this class are free to enforce the law while hearings continue in federal court on the request for an injunction. We will alert you if the status of this litigation changes.

Interim hearings
Most Senate committees have now received their interim charges from the Lt. Governor. They include:

Senate Criminal Justice Committee
• Money laundering
• Crime Victims Compensation (collection, qualification, use, and long-term stability)
• Pre-trial release and bail bond laws
• Diversion/treatment for defendants with mental health issues
• Administrative segregation in TDCJ
• Prescription drug abuse detection, prevention, and intervention
• Review of school disciplinary practices (with Senate Education Committee)
• Monitor legislation passed in 2011, including the Texas Juvenile Justice Department, SB 1616 & SB 1636 (testing and storage of biological evidence), SB 321 (employee firearms at work), and human trafficking

Senate Jurisprudence Committee
• Prevention, detection, and redress of power of attorney abuses
• Transfer of judges and exchange of benches among the district courts
• Appropriateness of current criminal court costs and civil filing fees
• Improvements to certain court processes in CPS cases

Senate Select Committee on Open Government
• Technology-driven changes to the Public Information Act (PIA)
• PIA's application to third-party contractors with state and local governments
• Record retention policies for state and local governments
• Frivolous and/or overly-burdensome open records requests

Senate Transportation & Homeland Security Committee
• Impact of border violence and illegal trafficking on state economy and property rights
• Toll collection and enforcement tools for TxDOT and local toll projects

For a full list of all Senate interim charges issued to date, download the documents available on the Senate website's home page.

Meanwhile, House committees have already started to hold hearings on some of their interim charges. For instance, last week the House Committee on Judiciary and Civil Jurisprudence took invited testimony on the topic of legislative intent, which is an increasingly hot topic among the civil bar due following the Texas Supreme Court's opinions in Fleming Foods v. Rylander, 6 S.W.3d 278 (Tex. 1999) (substantive change made in a non-substantive re-codification is to be given effect as written, regardless of intent) and Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009) (legislative definitions of workers' compensation terms control over their ordinary meaning). The debate could yield some recommendations that affect you in the future; for a complete run-down of the various proposals tossed around, watch the archived video.

License plate snafu
Speaking of legislative intent ... when is a crime not a crime? How about when there is no penalty ascribed to it, even though there should be one? That is the issue to be addressed by the Attorney General's office thanks to a recent opinion request submitted by Rep. Joe Pickett (D-El Paso). We first reported this in one of our November case summaries, but the issue has picked up interest due to media coverage in the Metroplex earlier this month. Now that the failure to display a license plate may not be a criminal offense (or the basis for a traffic stop), several prosecutors have sought TDCAA's advice on what local law enforcement authorities should be doing out on the streets. You are welcome to contact us for that feedback, but we will not be issuing any written opinion of our own. A good summary of the issues raised by this legislative error is available from our friends at the Texas Municipal Courts Education Center (TMCEC); see their take on the problems presented by this issue.

The Criminal Justice Integrity Unit looks at discovery and Brady
Last week the Court of Criminal Appeal's Criminal Justice Integrity Unit (CJIU), under the direction of Judge Barbara Hervey, discussed some "hot legal topics" that included discovery, Brady disclosures, forensic science developments, and mental health issues. Although no formal action was taken, the CJIU is planning a one-day seminar on Brady issues on a May date yet to be determined. In addition to Brady, there was also an illuminating discussion of the perceived shortcomings in Texas' current discovery practices and how changes to current law could prevent wrongful convictions like the recent Morton case in Williamson County.  These problems and various proposed solutions are not new, but it will be interesting to see if recent events are able to change the dynamic at the Capitol, where previously proposed solutions have not been able to get much traction over the past decade.

New DPS lab reports coming next month
DPS lab director Pat Johnson announced at the CJIU meeting that DPS's labs will soon be changing the format of their lab reports (mostly on drug cases) to comply with new national accreditation standards. We first told you about this back in November, when we thought we'd have some final word by now. That process is taking them a little longer than they anticipated, but we should have a sample copy of one of the new lab report forms posted on our website within the next two weeks for everyone to see, along with contact information for the person at DPS to whom questions should be addressed. The new report format must be implemented by DPS no later than March 1, 2012.

@TDCAA
Our new Twitter account may not yet be "blowing up" (as the kids say nowadays), but we have tripled our number of followers over the past month, and more are joining every week. Why don't you hop on board the bandwagon while there's still room? Follow us @TDCAA to keep abreast of the latest news affecting Texas prosecutors.

Quotes of the month
More election-infused commentary and humor for you ...

"'This is the most important election of our lifetimes.' —Every politician during every election."
—Comedian Michael Ian Black, as tweeted during last night's GOP presidential debate.

"Perry was proof of the adage that you never get a second chance to make a first impression—and his first impression was politically disastrous."
—Dan Balz of the Washington Post, in his article "Rick Perry's 'oops' campaign never ready for prime time."

"I'd rather take a shower with Jerry Sandusky than go through another month of this."
—An unnamed "veteran Perry advisor," just before the Iowa caucus vote, referring to infighting within the governor's presidential campaign staff.

"The people who are really depressed today are the late-night talk show hosts."
—Jerry Polinard, UT-Pan American professor, referring to the end of Perry's campaign.

"It's a little bit of karma and a little strange. Now we have all these blondes and all these Aggies telling 'Rick Perry jokes.' Certainly, the best minds we have today don't get into politics."
—Kinky Friedman, Texas singer/songwriter/comedian/sometimes political candidate.

"Perry has $2.4 million in his state account. Attorney General Greg Abbott has $12 million. I'm not saying that Abbott would challenge Perry, but I don't think Abbott has raised all of that money so he can be attorney general for the next 20 years."
—Jason Embry, political reporter for the Austin American-Statesman, speculating on what might be next for Gov. Perry, who has not ruled out a run for re-election.

"I think prosecutors are never wrong because they are cynical, and they don't believe in the constitutional framework in which this thing is supposed to operate, they don't believe in the presumption of innocence, and ... they don't believe in Brady v. Maryland and the immediate disclosure of stuff that is either exculpatory or mitigatory or impeachable. They just don't really have that in their heart and soul and believe it that that's what we have to do to have a justice system where these things—like the [Michael] Morton case, the Lacresha Murrays, the Kellers, whatever—don't happen."
—Judge Charlie Baird, current Democratic candidate for Travis County DA, in response to a question from the Austin Chronicle asking, "Why is it that prosecutors are never wrong?"

That's all for this month!