So much for those “well-earned days off” for which we were pining last week …
I do not think that word means what you think it means.
The 82nd Regular Session adjourned sine die (“without day,” as in, without further meetings) on Monday. However, the usual festivities were dampened by news that the governor was calling a special session to direct the legislature to complete unfinished work on health care and education. What that means for you remains to be seen.
By the numbers.
As of the end of business on Monday, legislators passed roughly 1,390 substantive bills and joint resolutions during the regular session (as near as we can tell). That is almost 100 fewer than in 2009, so we suppose we should be thankful for their restraint. Of the total number passed, more than 300 of those bills could affect your business, so we’ll have more than enough material to fill our summer legislative updates. As of now, it’s still too early for us to provide detailed information about everything that has been passed along to the governor, but while we work on that, here is a summary of some of the issues we followed for you during the regular session (in alphabetical order, for lack of a better system):
Asset forfeiture: As we mentioned might happen, SB 316 ended up passing with several interesting amendments. Whether it deserves a veto will be for each of you to decide individually. Elsewhere, the legislature added several new crimes to CCP Chapter 59’s forfeiture provisions, including the new crime of cockfighting, thanks to the passage of HB 1043.
Border, homeland security, and immigration issues: The legislature failed to pass any of its omnibus immigration-related bills, including HB 12 (sanctuary cities) or SB 9 (homeland security), nor did DPS’s border checkpoint expansion pass. However, the legislature did pass HB 260 (human smuggling) and SB 1649 (border prosecution grants).
Budget: Everyone should know the score on this by now: Other than cuts to DA apportionment and TDCAA’s training grant, prosecutors emerged from this session relatively unscathed. The criminal justice system as a whole also avoided some of the worst cuts initially being proposed, but that is subject to change during the special session, so we will hold off on any summaries until legislators have finally gone home for the summer.
Civil issues: HB 274, the “loser pays” bill, was the big news on this front, along with SB 18 on eminent domain. There were multiple CPS-related bills that also passed, but none matching the wholesale changes of past sessions.
Controlled substances: The main bills on this front are HB 1137 (tracking of OTC sales of ephedrine-related products), HB 2118 (bath salts), SB 158 (prescription fraud), and SB 331 (synthetic marihuana).
Criminal discovery: Every session, the legislature files multiple discovery-related bills, and every session, none of them pass due to an inability of prosecutors and criminal defense lawyers to come to agreement on anything. This session was no different.
Death penalty: As is its habit of late, the legislature debated various problems with the death penalty and then ended up expanding it—this time, by extending the age of eligible child victims from “under 6” to “under 10” years of age in SB 377.
DWI: Two DWI-related bills supported by prosecutors that failed to pass were HB 189 (deferred adjudication for first offenders) and HB 1507 (authorizing search warrants by non-lawyer JPs). However, the legislature did pass HB 1199 (increased punishment ranges for high BACs and for certain intoxication assaults), SB 364 (increased data reporting), and SB 1787 (including blood draw information in DIC-24 warnings).
Expunctions: Several potentially controversial expunction bills passed this session, including HB 351, SB 462, and HB 2889. They give prosecutors more power over the expunction of those records, but it also means you will be getting expunction requests after practically every dismissal, so … have fun with that. The only thing that we can say with certainty is that if all of them become law, CCP Chapter 55 will become a mess because the bills are internally inconsistent.
Family violence: There wasn’t much new on this front other than SB 82 (stalking).
Gambling: As we predicted would happen, pro-gambling interests crapped out this session and walked away from the tables empty-handed. The only changes the legislature passed were minor bills relating to charitable raffles and charitable bingo.
Human trafficking: This issue was the topic du jour for the 82nd Legislature. Among the human trafficking-related bills that passed are HB 1930 (human trafficking prevention task force), HB 2014 (prevention/prosecution/punishment of human trafficking), HB 3000 (continuous human trafficking), HCR 68 (joint interim legislative committee to study human trafficking in Texas), and SB 24 (various consequences for human trafficking).
Innocence commission: Attempts to create a free-standing statewide innocence commission failed again, as HB 115 was defeated on the House floor. Instead, HB 1574 was amended to require law school innocence projects to annually report on the exoneration of any of their clients, including a summary of the likely causes of the erroneous conviction.
Investigative procedures: After a false start last session, the legislature finally passed HB 215 to provide guidance to law enforcement agencies conducting identification line-ups. However, bills that would mandate the recording of certain custodial interrogations, such as HB 219 and SB 123, failed to pass.
Juvenile: The big news here was the passage of SB 653, which consolidates the Youth Commission and the Juvenile Probation Commission into one Texas Juvenile Justice Department; however, the impact that change has on the day-to-day proceedings of local juvenile courts remains to be seen. Other juvenile-related bills that passed include HB 2015 (prostitution now = CINS) and HB 2337 (juvenile statements).
Mental health: Several bills relating to mental health passed this session, including HB 748 (incompetency restoration), HB 2725 (incompetency), and HB 3342 (mental health writ procedures).
Post-conviction litigation: Two bills will expand access to post-conviction DNA testing—SB 122 and HB 1573—both eliminate certain prerequisites in current law for inmates seeking DNA testing. To facilitate that testing, SB 1616 also implements new retention rules for biological evidence. Other bills that would expand post-conviction opportunities died on the vine, including HB 220/SB 317 (subsequent “scientific” writs).
Prison issues: Most of the let-’em-out-early bills failed to pass, thanks to the opposition of prosecutors. Among those that may affect prison capacity are HB 2649 (“diligent participation credits” for early discharge from state jail facilities) and HB 3384 (clarifying penalties for repeat state jail felony offenders).
Probation issues: In an effort to accelerate probation discharges, HB 1205 authorizes time credits toward early release or final discharge for defendants who complete certain probation terms early or on time. Another idea designed to deter probation revocations involves something called “commitment reduction plans” as created by both HB 3691 and SB 1055.
Sex offenders/offenses: Although this was a relatively slow year for sex offender legislation, the legislature did pass HB 3 (LWOP for certain repeat offenders), HB 1344 (limiting defenses for display of harmful material to a minor), HB 3746 (administrative subpoenas relating to child exploitation), SB 198 (sex offender registration exemptions), and SB 407 (lowered penalties for “sexting”). Another sex offense-related bill that passed was SB 1010, which requires prosecutors to provide notice of any plea bargain agreements to victims of certain sex crimes and other serious offenses.
Transportation Code: Perhaps the most interesting change to the Transportation Code might be HB 242, which was amended to include a ban on texting while driving.
What happens next?
Now that the regular session is over, the fate of these and all other bills resides with the governor. His staff must review every bill that has been passed and decide whether their boss should sign it, veto it, or let it become law without his signature. If the governor decides to veto a bill, he must do so by Sunday, June 19 (Father’s Day). Considering the time necessary for that office to exercise due diligence in considering such requests, we recommend you send any correspondence to the governor as soon as possible, and no later than Monday, June 13. For more information on how to go about making such a request, contact Rob or Shannon at TDCAA.
Our popular Legislative Update seminars are continuing to fill up, and with good reason. Don’t think our little summary of passed legislation here is enough to get you up to speed with all they did this session—we only covered about 50 bills above, yet there are literally hundreds of other news laws going into effect before or on September 1 of this year, including the creation of as many as 75 (!) new criminal offenses or new penalties for existing crimes. In addition, our legislative trainings will have accurate information, which is important because we are already receiving calls from prosecutors who have been ill-informed about new laws based on misinformation from other sources. You don’t want to be the last person in your courtroom to know about important changes in the law, so sign up your office and your local officers for one of our summer updates at http://www.tdcaa.com/seminars/signup.asp. TDCAA members who pre-register receive a 25-percent discount, and all attendees receive a copy of our Legislative Update book. Our seminars are also the first opportunity peace officers will have to satisfy their TCLEOSE Course 3182 requirement on legislative changes for the 2012-2013 training biennium, so we expect a lot of officers to show up. Space is limited at some locations, so don’t delay—we already have over 100 pre-registrations for some locations!