Interim Update: March 2016

            Yes, it is April Fools’ Day. That means you should trust no one and believe nothing you hear today—sort of like how you should treat presidential campaign material every other day of the year. But don’t worry, we are not going to pull any pranks in this update. Discussing the Legislature should be humorous enough without our help.


Interim hearing recap

            Here are notes from some of the interim legislative hearings held in March:

  • The House Committee on Higher Education heard testimony about sexual assaults on college campuses. Amazingly, Baylor’s “VP of Student Life” (whatever that is) testified for 20 minutes on the topic without once being asked about any of the cases that have called into question that school’s handling of those issues. If that’s any indication, don’t expect anything groundbreaking to come from this interim charge.
  • The Senate Committee on Veterans Affairs heard from several veterans courts judges around the state about the funding, mandates, admissions/screening, and data (or lack thereof) on outcomes from veterans courts. Nothing concrete emerged from the hearing, but we will watch closely for any indication of a sea change in this area (especially in regard to prosecutors’ constitutional discretion to determine who is appropriate for diversion).
  • The House Committee on Criminal Jurisprudence reviewed indigent defense practices and the use of law school innocence projects. Perhaps the most interesting request from a member of that committee was for data on indigent defense costs by offense so that they could see how much indigent defense expense could be saved by decriminalization of certain misdemeanors and state jail felonies (you can probably guess which ones).
  • The Senate Committee on Criminal Justice took testimony on the changes to jail screenings that have been made in the wake of the Sandra Bland case (Waller County) and learned that the number of jail suicides has decreased to almost zero statewide. The conversation then changed into a more general discussion of housing offenders with mental health issues and concluded with Chairman John Whitmire (D-Houston) urging DSHS to include a request in next session’s budget for the $25–35 million it would take to eliminate the current wait for forensic (criminal) beds in state mental hospitals. A similar request was made by Sen. Kel Seliger (R-Amarillo) earlier that morning in a meeting of the Senate Committee on Finance, so it’s possible this budget item could get some traction next session. (“So you’re telling me there’s a chance. …”  —Lloyd Christmas, Dumb and Dumber (1994).)


March hearings

            Here is a list of relevant interim committee hearings posted for future dates:


Senate Committee on Health & Human Services

Wednesday, April 20, at 9:00 a.m., State Capitol Senate Chamber

Topics: CPS data on/tracking of repeated child abuse; foster child treatment/placement


House Committee on Criminal Jurisprudence

Monday, May 16, at 11:00 a.m., State Capitol Extension, Room 2.030

Topic: Asset forfeiture


House Committees on Correction and Criminal Jurisprudence (joint hearing)

Tuesday, May 17, at 9:00 a.m., John H. Reagan Bldg., Room 140

Topics: Probation and parole fees; technical revocations


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


Exoneration Commission recap

            The Tim Cole Exoneration Review Commission met last week to consider whether they should recommend that the Legislature pass a law mandating the electronic (read: visual) recording of certain custodial interrogations. While some on the commission were ready to move forward on that proposal immediately, several of the elected officials on the commission expressed reservations about voting without having any specific language before them. As a result, that item was temporarily tabled while the commission staff put together a more detailed proposal for the commission’s next meeting. Other future items on the commission’s agenda include proposals to (a) limit the use of confidential and/or jailhouse informants and (b) revisit the eyewitness identification law passed in 2011, but those topics may have to wait until they iron out the kinks in the recorded confessions issue (if at all).


DPS Crime Lab needs your input

            We recently received a request from the new Laboratory Records Program Specialist at the DPS Crime Lab in Austin. She is re-examining their policies regarding acceptance and destruction of excess quantities of controlled substances. Due to physical storage limitations at some of their laboratory locations, DPS may have to redefine downward what they consider to be an “excess quantity,” and they are seeking input from prosecutors to make sure they remain compliant with Health & Safety Code §481.160’s requirement to ensure “a sufficient quantity is preserved to provide for discovery by parties entitled to discovery.” Currently, their laboratory with the most prohibitive storage space retains the following controlled substance quantities:

Marihuana: 5 oz
Powders: 2 kg
Liquids: 500 mL

Their plan is to standardize the storage rules for all labs at this—or smaller—quantities. If you have any thoughts on the specific quantities necessary for discovery/re-testing, please contact Jennifer Howard, DPS Laboratory Records Program Specialist, at (512) 424-2105, ext. 3162, or [email protected]. She will be the point person going forward for all issues related to crime lab records, including open records requests, court orders, and discovery, so keep her contact information handy if you anticipate needing it in the future.


Tramadol alert

            We have posted an important alert about potential mistakes in the prosecution of tramadol, an opioid pain reliever, on our website at Please read it and then review any tramadol-related cases to make certain that you have been filing those cases correctly.


TRE and TRAP changes

            The proposed changes to TRE 615 (producing prior written statements) and TRAP 73.4 (habeas records) and 79.2 (contents) are now official. For details, see our website.


Auto burglary workshop

            Texas has recorded its third consecutive year of increased motor vehicle theft, with personal and business losses from such theft approaching $1 billion a year. Also, stolen motor vehicles are used in the commission of other crimes like human trafficking, drug smuggling, and robbery. If you or someone in your office has an interest in preventing auto burglaries and thefts, the Automobile Burglary and Theft Prevention Authority (ABTPA) is holding a Strategic Planning Workshop on Wednesday, April 13, 2016, to tackle that topic, and they would love to have input from prosecutors.

            The workshop will be held from 10:00 a.m. to 3:30 p.m. at the Texas Capitol Extension Auditorium in Austin and will feature five breakout sessions, culminating with a final discussion and vote on what should be the ABTPA’s priorities. The workshop is intended to collect input from stakeholders, subject-matter experts, affected entities, and other invited parties to advise the ABTPA’s strategic operational planning process (including grant awards and distributions) and to prepare the ABTPA for the next legislative session. If you or someone in your office would like to participate in this workshop, please contact Shannon ASAP for more details.


Free protective order training

            TDCAA is again offering two hours of FREE CLE on protective orders. The next training will be held on Tuesday, April 12, 2016, from 10:00 a.m. to noon, in conjunction with our Crimes Against Children Conference at the Wyndham Riverwalk Hotel in San Antonio. This free training is limited to prosecutor-office employees only. Attendees can register for it separately from the Crimes Against Children Conference by checking the appropriate box on the online registration page for that conference.


Quotes of the month


“The party’s establishment has clearly lost control and it’s due in large part to the wildfire that these elites helped fuel in recent years, a wildfire that was effective in winning elections in Texas and other states but one that has now consumed them. This is a controlled burn that got out of control.”

            —Mark Jones, Rice University political science professor, on the anti-establishment, no compromise, “outsider” tactics that have marked recent GOP campaigns in Texas and beyond.


“Our political discourse looks like the comments section of a blog.”

            —Sen. Marco Rubio (R-FL), former Republican candidate for president.


“We really need the attorney general’s office to get moving.”

            —Michael Cargill, one of several complainants upset with OAG’s lack of enforcement under SB 273, the bill that allowed OAG to sue local governments that improperly post gun-free zone notices.


“We’ve created this myth that we’re filling prisons with drug offenders—like some guy, a college sophomore, who was arrested with a single joint and was sentenced to 10 years in prison. I’m telling you, that guy doesn’t exist.”

            —Joe Margulies, a professor at Cornell University, speaking about California’s grand experiment (“Prop 47”) to release thousands of felons from prison early and divert thousands of other non-violent offenders from the court system up front.


“I thought it would be best just to sort of have fun with it rather than sitting there cringing every time I hear a word like that mispronounced.”

            —Missouri State Rep. Tracy McCreery, explaining why she filed House Resolution 1220 “urging the members of the Missouri House of Representatives to use the word ‘fiscal’ instead of ‘physical’ when referring to fiscal matters.”


“Fascinating to watch Alvarez race in Chicago because the fastest way to achieve criminal justice reform is to boot out rogue prosecutors.”

            —Tweet by Andrew Cohen, journalist specializing in criminal justice issues, in reference to this month’s failed re-election campaign of Anita Alvarez, the elected prosecutor in Chicago who has taken flak for her handling of officer-involved shootings.


“Mr. McCrum is a sore loser. He took this silly case, wasted a ton of taxpayer money, and got publicly beaten. He stretched the bounds of ethics in bringing this case, and there should be ramifications for him doing so.”

            —Tony Buzbee, lawyer for former Governor Rick Perry, criticizing the special prosecutor and hinting that he (or prosecutors in general?) should be sanctioned or otherwise punished for accepting cases like that.


“Being a prosecutor. The great joy of being a prosecutor is that you don’t take whatever case walks in the door. You evaluate the case, you make your best judgment, [and] you only go forward if you believe that the defendant is guilty. You may well be wrong, but you have done your best to ensure that as far as the evidence that you are able to attain, the person is guilty. It is the kind of even-handed balancing that a judge should undertake (although, of course, a judge has the advantage of having somebody speak for the other side). I think there is no greater job anybody can have than having been a prosecutor.”

            —Judge Merrick Garland, current nominee for the U.S. Supreme Court, when asked during his 1995 confirmation hearing which of his previous jobs best prepared him for that appointment.