Enhancement in the time of coronavirus

By Benjamin I. Kaminar
Assistant County & District Attorney in Lamar County

It normally takes a hurricane threatening the TDCAA Annual to trigger the Penal Code’s disaster enhancement provisions for a handful of (un)lucky coastal counties, but not in the age of coronavirus. For those of us who don’t see disaster declarations as often (or who haven’t convinced the Governor that being near Oklahoma counts as a disaster[1]), we’ll take a look at when it may apply and how to use it.

            Tucked away in the furthest reaches of Penal Code Chapter 12 is §12.50, the lesser-known, disaster-related cousin of the more frequently used repeat and habitual offender enhancements. Section 12.50 authorizes increased punishments for certain offenses if committed in areas subject to specific types of disaster declarations or an emergency evacuation order. The 2019 Legislative Session resulted in two bills that expanded the included offenses; you’ll find both in the TDCAA Criminal Laws of Texas book, but the only difference is that one bill added an additional offense.[2] Sometimes known as the “looting enhancement,” it applies primarily to property crimes, specifically arson (§28.02), robbery (§29.02), burglary (§30.02), burglary of coin-operated machines (§30.03), burglary of vehicles (§30.04), criminal trespass (§30.05), and theft of property (§31.03). It also applies to assault under §22.01 in all its forms, including against peace officers and involving family violence. It does not, however, apply to aggravated robbery or assault or to other types of theft under Chapter 31.

            Much like enhancements for repeat and habitual offenders, the disaster enhancement increases punishment but not the degree of the offense. Generally, the punishment range is increased to that for the next higher category of offense. For example, a Class B criminal trespass would instead be punished as a Class A misdemeanor while a state jail theft would be punished as a third-degree felony. In both cases, however, the degree of the offense remains the same.[3] There are two exceptions to this general rule: Class A misdemeanors instead have their minimum punishment raised to 180 days’ confinement, and first-degree felonies are unaffected (looking at you, Theft of an ATM from an Elderly Individual). The proper punishment range should be reflected in any plea admonishments and the proper degree of offense on any judgment.

            For one of the enumerated offenses to qualify for enhancement, it must have been committed in an area that was subject to one of three types of disaster declaration at the time of the offense. Qualifying disaster declarations are those made by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act, the state governor under §418.014 of the Government Code, and presiding officers of the governing body of political subdivisions[4] under §418.108 of the Government Code (read: “mayors or county judges”). A presidential declaration was issued on March 25, 2020, and is available through the Federal Register. The governor’s declaration was issued on March 13, 2020, and renewed continuously since then (as of the date this article was published). Both of those can be found on the governor’s website. Fortunately, both the presidential and gubernatorial declarations recite the appropriate statutory authorities listed in the enhancement statute. If, however, you need or choose to rely on a local declaration, check the declaration to make sure it recites the authority upon which it relies. It may be difficult to prove a declaration was issued under that authority if it isn’t explicitly laid out.

            Once we’ve determined that the offense qualifies and was committed during a disaster declaration, it’s time to decide whether to include the enhancement at all. Some offices may have a policy applying it to all qualifying offenses, to only certain types of offenses (such as enhancing family violence assaults but not non-FV assaults), or to some offenses on a case-by-case basis. As with any other charging decision, that should be decided based on office policy, the facts of the case, and the interests of justice. The ever-helpful TDCAA Charging Manual provides charging language for the disaster enhancement, including all three types of declaration.

In the courtroom

If you’ve made it this far, it’s time to look at how we handle it at trial. Although this is a punishment enhancement, because it is not based on a prior conviction, it must be submitted to the jury and proven beyond a reasonable doubt.[5] This should include reading the disaster enhancement at the beginning of guilt-innocence and the entry of a plea of true or not true. The jury should be charged with a special issue when it is sent to deliberate. Basically, we treat the disaster enhancement like any other special issue, such 1as a drug-free zone or hate crime finding.

            That still leaves us with proving up a declared disaster. As we discussed earlier, both the presidential and gubernatorial declarations are available on government websites, and Texas courts have repeatedly taken judicial notice of information available on various government websites.[6] Another route is to offer a copy of the governor’s declaration posted on that office’s website. The PDF of that declaration includes the State seal and the secretary of State’s attestation, meeting the requirements of Rule of Evidence 902(1). “But wait! We don’t have the original or a certified copy!” you may be thinking right now. Under Rule 1003, a duplicate is admissible to the same extent as the original unless a question is raised about the original’s authenticity or circumstances make it unfair to admit the duplicate. The Court of Criminal Appeals has affirmed the use of a faxed copy of a certified copy as a “duplicate.”[7] Finally, if using a local declaration, a certified copy may be readily obtained from the appropriate city or county clerk. For a misdemeanor in a rural county before the constitutional county judge, there’s always the option of asking the judge to take judicial notice of his own position as county judge and his own signature on the declaration.

            One final thing to take care of when dealing with any enhanced Class A misdemeanors is ensuring, once again, that the finding of true to the enhancement and proper range of punishment are documented. A family violence misdemeanant facing a probation revocation on a disaster enhancement will have a sentencing floor of six months. A different prosecutor handling the revocation might not even be aware of the enhancement’s effect if it’s not clearly documented, potentially leading to an illegal sentence falling below the minimum. Make that clear in the documentation.

Conclusion

Disaster declarations may not be something that we prosecutors deal with every day (or even every year), but when we do, the Legislature has given us an additional tool for our kit. A little legwork ahead of time to prepare can help us employ it in appropriate cases once our courts move toward normal operations. In the meantime, let’s stay safe and enjoy that curbside margarita service.

Endnotes

[1]  Exhibit A: “Tiger King” on Netflix.

[2]  We’ll be using the slightly more expansive list in HB 1028 here.

[3]  For an in-depth discussion of this distinction, see Jon English’s excellent article, “State jail dungeons and bad judgment dragons” in the November–December 2016 issue of this journal (www.tdcaa.com/journal/state-jail-dungeons-and-bad-judgment-dragons).

[4]  Defined as a county or incorporated city (Gov’t Code §418.004(6)).

[5]  See Ex parte Boyd, 58 S.W.3d 134 and Apprendi v. New Jersey, 530 U.S. 466.

[6]  See Tex. R. Evid. 201; see, e.g., Payan v. State, 199 S.W.3d 380, 383 & n.4 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (taking judicial notice of information available on “[t]he State Library and Archives Commission website”); see also Chen v. Hernandez, No. 03-11-00222-CV, 2012 Tex. App. LEXIS 7518, 2012 WL 3793294, at *14 (Tex. App.—Austin Aug. 28, 2012, pet. denied) (mem. op.) (noting trial court took judicial notice of “government websites,” including “website for the U.S. Department of State”); Hayden v. State, 155 S.W.3d 640, 647 (Tex. App.—Eastland 2005, pet. ref’d) (taking judicial notice of information available on “website of the United States Naval Observatory”).

[7]  Englund v. State, 946 S.W.2d 64 (Tex.Crim.App. 1997).