Interim Recap: May 2018

            Quit your complaining, it’s only going to get hotter. Heck, it’s not even “summer” yet!

 

Post-Santa Fe proposals

            In the wake of the awful shootings earlier this month at Santa Fe High School in Galveston County, Governor Greg Abbott convened a series of meetings in Austin with stakeholders interested in relevant topics (gun control, school security, mental health, etc.) to solicit potential solutions that might prevent another such incident from happening. The result was released yesterday: a 44-page “School and Firearm Safety Action Plan” (full PDF version available here). From a prosecution perspective, some highlights of the plan include:

  • increasing mental health resources for evaluating and treating at-risk students;
  • expanding Crime Stoppers-type programs at schools;
  • quicker reporting by clerks of adjudications that disqualify someone from gun purchases;
  • changing certain elements and punishments under PC §46.13 (Making a Firearm Accessible to a Child);
  • creating a new Class C misdemeanor for failure to report a lost or stolen firearm;
  • asking the legislature to study the potential creation of a “red flag law” authorizing the temporary confiscation of firearms from someone who is a danger to himself or others in a process akin to a protective order or involuntary commitment hearing; and
  • creating a statewide case management system (CMS) under the Office of Court Administration (OCA) to provide magistrates with more information when setting bonds.

Those last two items may be of particular interest to county and district attorneys, so be sure to read the full report for additional information while keeping in mind that much of the details still need to be hashed out by agencies or the legislature.

 

Special session?

            Immediately after the most recent mass shooting in Texas, several public figures on both sides of the political aisle asked Governor Abbott to call a special session of the legislature to address those incidents and the varied topics they have raised. The governor’s issuance of the action plan mentioned above was his initial response, but he has not foreclosed the option of a special session altogether. So, what is the likelihood of a special session on this topic this summer? It may be wishful thinking on our part (we just made vacation plans, dang it!), but color us skeptical for two reasons.

            First, special sessions are usually called only when a governor has clearly identified a problem *and* has a preferred legislative solution in mind. For example, the governor’s call for last summer’s special session included 20 specific issues, almost all of which already had proposed solutions drafted and ready to go with the governor’s public support—and yet even that wasn’t enough to get some of them over the finish line. But then, that’s the rub about special sessions. They’re like what former Longhorn Head Coach Darrell Royal (RIP) used to say about passing the football: “Three things can happen, and two of them are bad.” Due to this reality, it is unlikely Gov. Abbott will call a special session to address school shooting-related issues unless he is confident the legislature will send him something he already approves. Viewed in that light, it is likely that the meetings held earlier this month were intended to highlight mostly non-legislative solutions that could be implemented without the need for a special session.

            The other fact weighing against a special session is time. The legislature does nothing quickly, nor can legislative changes be implemented immediately absent approval by a super-majority of its members. That makes the special session route an unattractive one for state officials hoping to implement changes before the school year cranks up again in mid- to late-August. The caveat to that reservation is that some of the governor’s recommendations—such as a “red flag law”—can be enacted only by the legislature. To that end, House Speaker Joe Straus quickly asked the House Criminal Jurisprudence Committee to examine that topic during the interim, and earlier today, Lt. Gov. Patrick announced the creation of a select committee to study some of the governor’s proposals between now and early August.

            In other words, we’re not saying the idea of a special session is dead, only that it’s mostly dead. And as we all know, mostly dead is still slightly alive.

 

CAC video discovery

            Speaking of the legislature: Each of the past two interim hearings held by the House Criminal Jurisprudence Committee have included testimony from members of the Texas Criminal Defense Lawyers Association (TCDLA) complaining about the inconvenience and unfairness of the law prohibiting them from receiving copies of child advocacy center (CAC) forensic videos. Now, we might be a little slow sometimes, but we’re not stupid—this is clearly going to be something that the defense bar intends to pursue next session. With that in mind, we thought we’d ask for your two cents about that law, which was codified back in 2011 as Family Code §264.408(d-1). We know what the defense bar thinks of it, but what do you think? Is it working well or not? Have you had to create work-arounds to make it work better? Is it more trouble than it’s worth? Etc. etc. If you have thoughts on this topic, please direct them to Shannon by phone or email.

 

Interim committee hearings

            Here are some other highlights of May’s interim hearings:

            The House Criminal Jurisprudence Committee took testimony on the prevalence of prosecutorial misconduct and ineffective assistance of counsel (IAC). The former included TDCAA’s 2012 report on that topic (plus an update provided by Shannon); information from the State Bar’s chief disciplinary counsel on how they handle grievances related to both topics; and a rundown from State Prosecuting Attorney Stacey Soule of appellate actions relating to both types of claims. Two take-aways from the hearing were that IAC findings vastly outnumber confirmed cases of prosecutorial misconduct, and that the latter still consist mostly of Brady-type discovery violations (a conclusion shared by our original 2012 report). No word yet on what direction the committee might go on this interim charge, but it seems clear that the state has done much more about allegations of prosecutorial misconduct than it has about IAC, so the latter problem might be ripe for more attention from the next legislature—although pleas at the hearing from Geoffrey Burkhart, the new director of the Texas Indigent Defense Commission, to dramatically increase funding for indigent defense will likely fall on deaf ears again in light of the state’s current budget situation.

            Killing two birds with one stone hearing, the committee also studied the investigation and prosecution of sexual assaults. That portion of the hearing included testimony about the current rape kit backlog; a plea from the Texas Association Against Sexual Assault (TAASA) to pass a more robust indecent contact (aka “groping”) law for adult victims; a proposal from Amy Derrick of the Dallas County Criminal DA’s Office to expand CCP Art. 38.37 to apply to adult sex crimes; opposition from TCDLA’s representative to that idea and to any revision of current definitions of “consent”; and concerns from advocates for developmentally disabled victims that various players in the criminal justice system lack the expertise required to deal with them appropriately. Again, we don’t have any good information on what the committee will do with all this information, but this is certainly a policy area that is likely to see more legislation filed next session.

            Elsewhere … The Sunset Commission continued its reviews of DPS and DMV … the House Public Health Committee considered ways to improve ways to identify and treat children with mental illness … the House Select Committee on Opioids & Substance Abuse reviewed problems related to the overutilization and diversion of addictive prescriptions … and the House Corrections Committee discussed rehabilitation programming—or the lack thereof—for female offenders in the criminal justice system. If you have questions about any of these hearings, please contact Shannon for more details.

 

Future interim hearings

            As of today, there are no relevant interim hearings scheduled for June, but don’t be surprised if some committees post notice of hearings related to the governor’s action plan (above) in the next several weeks. Follow us on Twitter for additional news on that front as it happens.

 

Request for legislative help

            In advance of the 2019 session, Chambers County DA Cheryl Lieck is working with several other prosecutors on legislation that would expand DNA collection after felony arrests. (For a similar attempt from last session, see HB 3513).  If you are interested in working on this legislation, please email Chambers County Assistant DA Eric Carcerano for more details.

 

Upcoming TDCAA training opportunities

            Registration is still open for TDCAA’s Forensic Evidence Seminar. From DNA to firearms, this course will provide prosecutors and their investigators with the knowledge and skills necessary to see justice done. The course will be held June 13­–15 in Dallas. For more information, click here!

            And don’t forget that we have our second Prosecutor Trial Skills Course of 2018 coming up in July at the Holiday Inn Riverwalk in San Antonio. This will be our final “baby prosecutor course” in San Antonio before returning to Austin for 2019, so check out the details for this conference and consider sending your new prosecutors to ol’ San Antone for some CLE while you still can!

 

Quotes of the Month

“That’s a process question. Right now, we’re focused on substance issues. We need solutions first.”
            —Gov. Greg Abbott, when asked last week whether he would call a special session to address the recent school shooting in Santa Fe, Texas.

 

“If there is consensus on some laws that could be passed, I am open to calling [a special session].”
            —Gov. Abbott, after revealing his post-Santa Fe action plan yesterday.

 

“I wish I were sorry, but I am not.”
            —Mark Conditt, the Austin bomber, in a recorded statement found after his death. For a post-mortem search for answers to why he did what he did, read this story.

 

“This is not the last mistake, and there’s probably plenty to come, unfortunately.”
            —Devin Patrick Kelley, the Sutherland Springs shooter, in a videotaped statement made in 2012 in which he discussed his penchant for violence and problems with anger control.

 

“I’m sure every woman in the Senate has been sexually harassed at one point or another in her life.”
            —State Sen. Judith Zaffirini (D-Laredo), in an article noting that the state senate has still not officially adopted a new policy on sexual harassment in light of multiple allegations of improprieties by certain members of that chamber.

 

“I feel like I am Alice going down the rabbit hole.”
            —Federal district judge Lee H. Rosenthal, before she stayed former death row inmate Alfred DeWayne Brown’s civil suit against various Harris County authorities for his alleged wrongful conviction, after new information has come to light that might explain why local authorities have refused to agree that he is factually innocent.

 

“We’ve opened up a real circus here. You’re going to have so many people addicted to gambling in the next couple of years, it’s going to be crazy. We’re going to have a volcano of gambling addiction in America.”
            —Arnie Wexler, anti-gambling advocate, predicting a sharp rise in gambling addiction after the Supreme Court struck down the federal ban on sports betting earlier this month. (Don’t expect any change here, however—legalized sports betting in Texas requires a super-majority of legislators to approve a constitutional amendment, which is highly unlikely.)

 

“It’s remarkable for me to see what she’s become knowing what these kids go through, knowing in particular what her situation was. It’s just uplifting. We just deal with so much ugly in my business, to see something like that, it’s just remarkable.”
            —Ellis County & District Attorney Patrick Wilson, in a touching story of a child sexual assault survivor who reached out to thank him after her college graduation (link includes video).

 

###