September-October 2009

If it bleeds, it pleads

Rob Kepple

TDCAA Executive Director in Austin

By the time you read this column, we will have finished our Legislative Update tour across Texas. The biggest hit by far has been the discussion of the new DWI laws that we introduced under the heading “If it bleeds, it pleads.”

For years Texas prosecutors have labored under a 50-percent refusal rate in DWI cases. Like many of you, I cut my teeth on “no evidence” DWI cases and have an almost even win-loss record to show for it. Long ago the defense bar successfully convinced the public that the penalties for refusing to provide a breath specimen were so minimal that it was worth refusing to blow even when the law required it. And for the most part, the Texas legislature has been unwilling to enact laws that would put teeth into punishing refusals.

So hats off to Texas prosecutors who have found ways to get the evidence we have been missing. In the last couple years many of you have worked with your police departments to launch “no-refusal weekends” and other programs using search warrants to get evidence. And in this past legislative session, thanks to prosecutors’ hard work, the mandatory blood-draw provisions in the Transportation Code have been significantly expanded and the Code of Criminal Procedure has been amended to expand the pool of judges who can issue a search warrant for blood. (Read more about the changes on page 8.)

Judging by the reaction of the defense bar to these recent innovations, prosecutors must be doing something right. Recent comments decrying “police-ordered blood draws” may just reveal the truth of the matter: With solid evidence legally obtained, we can prove a defendant’s intoxication (or his sobriety) and see that justice is done in DWI cases. Perhaps the defense attorneys who hand out business cards at bars on how not to cooperate with police officers in DWI investigations should now include a warning about the new consequences of refusing to take a breath test.

The beginnings of ­journalist privilege jurisprudence

It didn’t take long for battle lines to form over the newly enacted journalist privilege. As you know, on May 13, HB 670, the journalist shield law, became effective. Codified as Art. 38.11 in the Code of Criminal Procedure, the law grants journalists a privilege not to disclose confidential sources and information in some circumstances.

Many prosecutors have had long-standing relationships with their local media outlets, perhaps in recognition that there is a symbiotic relationship between the courthouse and the media. After all, reporters seek information from prosecutors and defense attorneys more often than the other way around. But those long-standing relationships may be in for a change.

In a recent case, a television reporter interviewed a defendant about a crime, and snippets of the interview were played on the nightly news. Before the shield law went into effect, that tape would end up on the prosecutor’s desk in a hurry. Now, though, the TV station filed a motion to quash in response to the prosecutor’s subpoena for the unpublished footage, claiming that the content of the video can be retrieved from “alternative sources” or that the prosecutor had not shown the footage was “relevant and material to the proper administration of justice.”

It will be an interesting year as this new area of jurisprudence takes shape. To make sure the law develops evenly around the state, please keep in touch with us here at the association concerning any media privilege issues. A great team of prosecutors worked very hard on this issue during the session, including Bobby Bland (DA in Ector County), Randall Sims (DA in Potter County), Cliff Herberg (ACDA in Bexar County), Katrina Daniels (ACDA in Bexar County), and John Rolater (ACDA in Collin County). Please rely on us and this team as we work through the issues that come up in the next couple years.

Student loan forgiveness update

For law students eyeing a career in prosecution and elected prosecutors trying to hire talented new prosecutors, student loan debt remains a big issue. Back in the March-April issue I talked about the College Cost Reduction Act of 2007, which went into effect July 1, 2009. There are two significant components to this law.

Income-based repayment, or IBR, is a way for people with large federal student loans to cap their repayments. All federal direct loans and federally guaranteed loans are covered. The reduction in monthly loan payment can be significant, as this chart illustrates:

Under some circumstances, the IBR program will forgive some of the interest payments, but for the most part the student will still need to repay the full amount of the loan. But there is one major exception to that: 10-year public service loan forgiveness. In this program, the rubber meets the road. If the student has loans under the federal direct loan program, after 10 years of public service (working in a prosecutor’s office qualifies), the balance of those loans can be forgiven. The benefit to those in public service is enormous, especially if their loan payments have been capped under the IBR program for their first 10 years of service. The combination of the IBR and the 10-year forgiveness program means that graduating law students with a keen interest in prosecution have a real shot at making the job fit their financial needs.

For more information, go HERE.

Are potential jurors ­qualified to serve?

Recently questions have arisen about checking the criminal histories of the venire panel before jury selection begins. It’s a long-standing practice in Texas, and the rationale is pretty simple:  A criminal conviction can disqualify a potential juror from service and put a subsequent conviction at risk should that juror serve.

We have recently received confirmation from the Texas Department of Public Safety that checking the criminal history of potential jurors through the Texas Law Enforcement Telecommunications System (TLETS) is permissible. The bottom line is, criminal history information is available for criminal justice purposes, and that is broadly defined as activities included in the administration of justice, such as a criminal jury trial. (See §§411.082 and 411.083 of the Government Code.)

If this issue pops up in your jurisdiction, let us know and we can supply you with more information.

The NAC survives

Through the years many of you have enjoyed the training provided by the National Advocacy Center in Columbia, South Carolina. In past years “the NAC,” as it’s known, has provided great training for about 75 Texas prosecutors a year, all expenses paid. In this last year the NAC has fallen on hard times and has had to cut back on its training agenda.

But I can share good news from South Carolina! The National District Attorneys Association has secured funding from Congress to keep the NAC open to prosecutors all around the country. The $1.6 million in the pipeline isn’t enough to completely restore its work—the NAC is fully funded at about $4.5 million—but it is a good start. Keep an eye on for future NAC offerings.

Hats off to the ­publications department!

Many of you rely on TDCAA publications to support you in your work. None are more important than the biennial Penal Code and Code of Criminal Procedure books written and edited by our senior staff counsel, Diane Beckham. The code books are not only outstanding and affordable, but they also arrive on your desk before most laws go into effect September 1.

The people behind the book handling operations are our Sales Manager, Andrew Smith, and his assistant, Patrick McMillin. They have done a remarkable job of shipping every pre-ordered book weeks before the September 1 deadline. (All the more remarkable that Andrew “Drew” Smith can take care of our business and still launch his musical career. Check him out at Thank you, Diane, Andrew, and Patrick, for all of the extra effort you’ve put into this year’s publications!