September-October 2011

Hot topics in our Legislative Updates

Rob Kepple

TDCAA Executive Director in Austin

As we crisscross the state on our post-session legislative update tour, we get a pretty clear picture of what changes are of greatest interest to prosecutors. Significantly, the numerous punishment enhancements were not crowd favorites. There are always exceptions, but it seems that prosecutors are by and large satisfied that we have the punishment ranges we need to do justice. Some changes relating to our core functions as prosecutors are the ones that attracted the most attention and questions at the updates.

    Expunctions. In the age of electronic databases, mass electronic media, and the instant and diffuse distribution of information, many folks have come to believe that the concept of an expunction—the obliteration of any record of an arrest and/or a criminal charge—is a quaint notion. And you would have thought that the passage of the non-disclosure provisions (allowing for criminal records to be retired from public view but remain accessible to law enforcement and prosecution) would have reduced the call for more expunction legislation. But no.

    Two major changes were made to Chapter 55 of the Code of Criminal Procedure. (Read our cover story for more detailed information.) The first allows for expunctions of arrests that have not resulted in criminal charges before the expiration of the statute of limitations. Many times that won’t be a big deal, but we know that there are cases that may be percolating a long time before an indictment can be returned, and the prospect of an expunction within the statute of limitations is unnerving. Fortunately, this form of expunction provides that law enforcement agencies and prosecutors don’t have to destroy their records, which has left a lot of folks wondering just what they can and can’t do with the information that is subject to this variation of the expunction theme.
    The second major change is one that has given prosecutors pause because it makes a fundamental change in expunction law. Up until now, expunction has been a purely legal remedy. A person either meets the legal qualifications or he doesn’t, and prosecutors and Department of Public Safety (DPS) lawyers have been pretty vigilant in not allowing courts to hand out expunctions not authorized by the statute. But that has changed. Now, records of anything that transpired before a trial are subject to expunction at the discretion of the prosecutor.

    So far prosecutors have been pretty leery of the new grant of discretion. It seems to put the sole discretion for an expunction in the hands of the prosecutor with the case on his desk, regardless of the wishes of law enforcement or even other prosecutors who may have a continued interest in the case. Given the potential issues with this new expunction, most prosecutors we have talked to are holding off on using it until they have a chance to gather with other electeds at the Elected Prosecutor Conference in Dallas November 30–December 2. We will have the opportunity there to compare notes and ideas on how to handle this new legal gismo.

    Victim notification of plea agreements. This change comes in two parts. First, the judge is required to ask the prosecutor before accepting a plea if the victim, as defined in Art. 56.01 CCP, has been notified of the existence and terms of any plea agreement. (See art. 26.13(c)(2) of the Code of Criminal Procedure.) Second, the prosecutor, as far as reasonably practical, shall give the victim, guardian of the victim, or a close relative of a deceased victim, notice of any plea bargain agreement to be presented to the court.

    It is not so much that people are concerned about having to give notice of plea bargains to the victims of a crime, as prosecutors do that as a matter of course. The complication is if a victim, for whatever reason, has been missing in action, uncooperative, or unresponsive to our efforts to involve her in the proceedings. Notwithstanding a lack of cooperation, however, the case must go on and the prosecutor has to make decisions about the best course to follow. So many offices are looking at their victim/witness procedures and making sure that they do their best to properly notify victims and document their efforts if there should be questions later on.

    DWI reporting. One of the big disappointments for many prosecutors was the legislature’s failure to pass a bill allowing for deferred adjudication in at least some DWI cases. As you know, prosecutor offices all over the state have struggled to find appropriate punishments for the large number of DWI cases on their dockets. Many offices have created diversion programs to reduce recidivism while maintaining a just level of consequences for criminal conduct. There seemed to be widespread agreement that a limited deferred adjudication punishment for at least some DWI offenders (such as first offenders who voluntarily submit breath or blood samples) would offer such a balanced consequence, but it was not to be again this session.

    But DWI was not ignored. The legislature passed a law requiring extensive reporting of DWI-related arrests and dispositions. Found at Government Code §411.049, the law requires DPS to compile statewide data on arrests, charges, and dispositions of DWI cases. All arresting agencies and prosecutors will be required to submit information on the cases coming into and leaving the criminal justice system. In addition, DPS will be required to submit a “naughty” list—those agencies and prosecutor offices that did not submit the information required. DPS will be developing the system for capturing the information, and the first report is due to the legislature February 15, 2013, at the beginning of the 83rd Legislative Session.

Thanks for “mad-dogging” it

The highlight of the legislative update series? It wasn’t one particular bill this time, but the game we played in memory of the late University of Texas law professor Bob “Mad Dog” Dawson. The object of the game, which the professor and former prosecutor Dawson used to play with his students: to find the highest possible criminal charge for a given set of facts.

    I must say that the folks at the updates I got to present were enthusiastic about the game. Indeed, when I laid out the scenario in which, come September 1, the theft of a single penny is a state jail felony, one audience member quickly pointed out that I had forgotten about an additional enhancement that bumped it up to a third-degree felony. (How would you do such a thing? So as not to spoil the fun for those still thinking on it, we’ve put the answer at the bottom of this page.)

    Now that’s the spirit!

The final chapter in the Yearning for Zion saga

It was a long time coming, but congratulations to lead prosecutor and former Assistant Attorney General  Eric Nichols, who recently secured a life sentence for Warren Jeffs, the leader of the Yearning For Zion outfit that made camp a few years ago in Schleicher County. As you might recall, TDCAA awarded Eric the Lone Star Prosecutor award in 2010 for his tireless efforts in prosecuting case after case of bigamy and child sexual assault that came out of the YFZ compound. Even though Eric has left the AG’s office to return to private practice with Beck, Redden, and Secrest in Austin, he wanted to see the YFZ prosecutions through to the end. Well done, Eric, and hats off for seeing these cases through.

NDAA report

With important issues bubbling at the national level, it is good to know that three Texas prosecutors will be part of the 2011–12 National District Attorneys Association (NDAA) leadership. Judge Patricia Lykos (DA in Harris County) will serve on the NDAA Board of Directors; Henry Garza (DA in Bell County) will serve as a director on the Executive Committee; and John Bradley (DA in Williamson County) has been appointed as a vice president. There are plenty of issues at the national level that require good leadership: attacks on prosecutorial immunity, unfounded claims of prosecutor misconduct, forensic science, eyewitness identification, funding of the J.R. Justice Student Loan Repayment Program, and the closing and possible relocation of the National Advocacy Center. Congratulations to you three, and good luck!

Mad-dogging answer

Here’s how the legislature made the theft of a single penny a third-degree felony: If the theft is committed during a disaster declaration, the penalty is increased by one degree. Most of Texas is under a drought disaster declaration, so any theft committed in an area with such a declaration can be enhanced to the next-highest degree—it applies to most Texas counties!