Pushing boulders at the Texas capitol

By Eric Carcerano
Assistant District Attorney in Chambers County

In Greek mythology, Sisyphus is a character who spends his whole life rolling a large boulder up a hill, only to get close to the top and have it roll back to the bottom. Sometimes trying to pass an important bill at the Texas Legislature can feel the same way.

Four legislative sessions can seem like forever, but unlike that accursed king of Greek lore, we finally reached the top of the mountain and pushed our rock over the peak. Here’s how it happened.
            On March 5, 1996, the unidentified body of a teenage girl was found under the Trinity River Bridge in Chambers County. She had been sexually assaulted and strangled. Her description matched no missing person reports from Chambers County or nearby areas in Baytown. The body was sent to the morgue in Jefferson County, where it was eventually identified as the body of 13-year-old Krystal Jean Baker of Texas City in Galveston County. Krystal had been living there with her grandmother and had run away in the past, but she had always come back. By the time her grandmother realized she was missing again, Krystal was the Jane Doe in the morgue. Analysts at the lab were able to recover biological materials from her dress and under her fingernails, but the technology at the time could not detect the presence of semen on the dress, and law enforcement officials could not develop a suspect. From there the case went cold.
            More than seven years later and hundreds of miles away, on August 30, 2003, Katie Sepich, a graduate student at New Mexico State University, was walking home from a party. She was locked out of her house and tried to climb in a window so she wouldn’t wake up her roommate. The next morning, her partially clothed, burned body was found at an abandoned city dump site. State police and prosecutors recovered her assailant’s DNA, but they found no match. Katie’s parents, Dave and Jayann Sepich, began a campaign to find her killer, buying billboards in New Mexico and El Paso to bring him to justice.
            During the Christmas holidays in 2003, I was visiting my family in El Paso. I saw one of the billboards and asked my brother about the story, and he told me about Katie Sepich. He said that authorities had DNA but nothing to compare it to. As a prosecutor, I was intrigued, but I didn’t realize how important this little piece of information would be to us years down the road in Chambers County and later in Austin at the capitol. 
            Katie’s mother, Jayann, eventually went to the New Mexico legislature and helped pass a law[1] mandating the collection of DNA from felony arrestees in New Mexico that would help catch Katie’s killer, Gabriel Avila. Avila was not a suspect until December 2006, when his DNA was taken after an arrest on an unrelated burglary and subsequently matched to that found on Katie’s body. Avila had been arrested several times between Katie’s murder and his eventual arrest for it, including an arrest just three months after Katie was killed (but before the DNA collection law was enacted). In May 2007, Avila was sentenced to 69 years in prison without the possibility of parole. Susana Martinez was the Doña Ana County District Attorney who prosecuted Gabriel Avila for the murder of Katie Sepich. Martinez would later be elected governor of New Mexico.
            Back in Texas, an evidence officer from the Chambers County Sheriff’s Office had read up on new technology in the DNA field and, on a hunch, decided to resubmit evidence from the Krystal Jean Baker case in January 2010. As it turns out, the officer’s hunch was correct, and the presence of semen was detected. From this semen a DNA profile was developed, but there was still no suspect in Krystal’s murder. In September 2010, I got a call from that evidence officer, who brought me up to speed on the Krystal Jean Baker case and informed me that despite the potential lead, there was still more work to do.
            A week later, my phone rang again. It was a phone call I will never forget. Texas Ranger Joe Haralson was on the other line. He said, “We found your guy. We are on the way to get him now. I need you to get me a search warrant for his DNA.” Kevin Edison Smith had been arrested in Livonia, Louisiana, on a traffic stop for a minor drug possession case—in Texas the offense would have been a Class A misdemeanor. The State of Louisiana took a cheek swab of his DNA and placed it into CODIS. As it turns out, Louisiana had a very aggressive DNA collection statute, which mandated the collection of DNA from all persons arrested for a felony offense as well as certain enumerated misdemeanors for placement into CODIS.[2] Smith’s cheek swab matched the DNA from Krystal’s dress in the 1996 cold case.  On the day Baker was murdered in 1996, Smith was rained out at work and picked up Baker at a convenience store not far from her home. Smith had traveled all around the country between the time of Baker’s murder and when he was finally arrested for it. After the CODIS hit, when he was finally confronted with the evidence from the dress, Smith confessed to murdering Krystal Jean Baker. In April 2012, he was tried for capital murder, convicted, and sentenced to life in the Texas Department of Criminal Justice.[3]

Taking DNA samples
In 2001, Texas became the first state in the nation to pass a law allowing a DNA sample to be taken from a suspect of a crime prior to conviction.[4] The law allowed DNA to be taken at the time of indictment for those arrested for certain violent crimes (but not all felonies). Other states soon did the same. In 2003, Louisiana passed a law allowing DNA to be taken at the time of arrest for all felonies,[5] and many other states have followed suit. Today, every state that borders Texas takes DNA from felony suspects at arrest.[6] The United States Supreme Court upheld the legality of arrestee DNA statutes in Maryland v. King, holding that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold a suspect for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.[7] Despite being one of the early leaders in passing a DNA collection law, Texas fell behind as other states began to pass more aggressive statutes.

Three trips to the legislature
Chambers County District Attorney Cheryl Lieck made the decision to take the issue of arrestee DNA to the Texas Legislature and bring Texas up to speed in the area of DNA collection. Despite having been to most of TDCAA’s Legislative Updates over the years and having read all the legislative reports on the TDCAA website, our knowledge of the actual legislative process was closer to “Schoolhouse Rock.”[8] We had this vision of filing a bill, getting lauded at the capitol, and standing behind the governor as he signed it into law. I quickly learned that if you are planning what color tie to wear when having your photo taken as the governor signs your bill into law, you better check those dreams at the big wooden door because the capitol can be a cold and lonely place.
            During the 2013 legislative session, Cheryl asked a state representative to file House Bill 1038,[9] which would’ve required the taking of a DNA sample from all persons arrested for any offense above a Class B misdemeanor at the time of booking for placement into CODIS. The bill would have made Texas one of the most aggressive states in the country as far as arrestee DNA collection. To us, the bill made sense and brought Texas up to the standards of other states. But as it was our first real trip to the legislature, we were flying a little bit blind. Like I said, the capitol is a cold and lonely place. For starters, House Bill 1038 had a $22 million fiscal note attached to it. In layman’s terms, that means it would cost the state $22 million to implement the new statute. Even in good financial times that is a high price tag for any legislation, but for an economy just starting to recover from years of recession, it was a nonstarter. HB 1038 was voted out of the House Homeland Security and Public Safety Committee but died in the House Calendars Committee, which is the final step before a bill makes it to the House floor for a vote.
            Our efforts in 2015 ended much the same. House Bill 3740[10] was doomed by the same combination of factors that derailed our efforts in 2013. Even though House Bill 3740 required that DNA be taken only from persons arrested for Class A misdemeanors and above, the fiscal note had now ballooned to $38 million. Bills that are that expensive have no chance of passing. And unlike the previous session, this bill was sent to an entirely different committee, where it received a hostile reception in the House Criminal Jurisprudence Committee. The criminal defense bar, privacy advocates, and budget watchers all lined up against the bill, and these factions found an ear on the committee. The bill never came up for a vote and died in that committee, making even less progress than the previous attempt.
            After the 2015 session we decided to learn more about the legislative process. If you want to learn about it yourself, the best place to start is the TDCAA office. After the 2015 session, it was obvious to us that this legislation had its detractors and the organized opposition to the bill that emerged during the 2015 session was never going to go away. This legislation was not going to pass on policy alone—we were going to have to do a lot more work.
            We showed up in Austin on the first day of the 2017 session for attempt No. 3. The first day of the session is like move-in day on a college campus. We had already made arrangements to have Shannon Edmonds, TDCAA’s Director of Governmental Relations, take us around and introduce us to some people whose help we would need to pass our bill. While we were sitting in our representative’s office, in an interesting little bit of coincidence, the executive director of the state’s largest peace officers organization dropped in. And he had come to talk about DNA legislation. To us it seemed liked serendipity—2017 had to be our year!
            In the early days of that session, we made many trips to Austin. We spent those first weeks looking at the makeup of the various committees we would have to navigate to get House Bill 3513[11] through the legislature. We looked at deadlines. We tried to figure out who might support our bill and who might oppose it. And then we waited. Deadlines to file bills and have them heard at various stages of the session are very rigid, and missing a deadline will kill a bill. As March turns to April, if your bill is not making progress, the chances of getting it passed are pretty slim. Despite all the work we did early in the session, April was quickly coming to a close and our bill had seen no action.
            All of that changed on April 18 when we finally got word that House Bill 3513 would be heard in the House Criminal Jurisprudence Committee the following week. On the day we got notice of our hearing, I was driving home and discussing the bill on the phone with my brother, who was a biology teacher. I was trying to get some insight from someone who knew a little about DNA but wasn’t a lawyer. I was actually trying to convince my brother to come to Austin to testify when he said, “You need Jayann Sepich.” It did not immediately dawn on me who Jayann Sepich was until my brother reminded me, “Her daughter was murdered. Don’t you remember the billboards?” He told me that she had gone to the New Mexico legislature and passed a DNA statute similar to our bill. (What neither of us knew at that time is that she had testified in almost every state in the country and had helped pass DNA statutes in several of them.)
            After that tip from my brother, I looked up Jayann Sepich online and called her. The conversation went something like: “Ms. Sepich, my name is Eric Carcerano. You don’t know me, but I’m a prosecutor in Texas and we are trying to pass a DNA statute here and we need your help in Austin.” And just like that, she came! She brought her vast knowledge of other states’ DNA laws with her and also connected us to her extensive network of people who had worked on DNA legislation, including advocates and crime victims who lived in Austin and who all had compelling stories to tell. We spent two solid days before our hearing talking to committee members and anyone else who would listen about our bill, and we felt pretty confident going into the hearing. Because it was so late in the session, we had already started sizing up the Calendars Committee, which would be the next hurdle to clear if the bill was voted out of the Criminal Jurisprudence Committee. We were sure 2017 was our year.
            One thing we learned that day is that people at the capitol will tell you one thing in a closed-door meeting and vote differently in a public hearing. Despite thinking that we had votes to spare, House Bill 3513 was voted out of committee by the slimmest 5–4 margin, and we were on to the Calendars Committee. We had done some preliminary work in Calendars and were somewhat certain we had the votes to get to the House floor, but by then it was very late in the session and various procedural maneuvers were used by our bill’s opponents to run out the clock on House Bill 3513. It just wasn’t meant to be during the 2017 session.
            I wonder if Sisyphus ever saw the top of the mountain? During the 2017 session, the summit was in sight for us, but at the end of every session the boulder rolled back down the mountain, and we had to start at the bottom again.    

Fourth session is the charm
Our work on the 2019 session began the day after the 2017 session ended. During the interim, we talked to anyone who would listen about our bill. We received a lot of phone calls from other prosecutors who wanted to help. We had also finally built a large network of supporters who would help us work in other parts of the state. We contacted all the large prosecutor offices to make sure they were all on board. We contacted the Governor’s Office, the Lieutenant Governor’s Office, and various important offices in the House and Senate and set up meetings, and we attended committee hearings on interim charges.
            On the way to an interim committee hearing where I was supposed to testify in May 2018, I hit a deer in Columbus and didn’t make it to the hearing. But interestingly, I heard from several people at the capitol that day. They knew we weren’t giving up. Throughout the summer and fall of 2018, we were constantly working, talking to people, and meeting with people about our bill in preparation for our next attempt to push our boulder up the mountain.
            Days at the legislature can be exhausting. But after a couple of sessions, you realize that the rules of the legislature are a lot like those from All I Really Need To Know I Learned In Kindergarten.[12] Be honest. Be respectful of people’s time and of people’s opinions and positions on a subject. Agree to disagree. Clean up your own mess. Visit every member on the committee, even those you know are going to vote against you. Committee members talk to each other, and staffers talk to each other. Over the course of an entire session, there is a lot of give and take in the committees, and members often bond over different issues. If a committee member who is on the fence about an issue finds out that you disrespected one of his fellow members, it may be the difference between a bill getting voted out or dying in committee.
            Because of the cost associated with swabbing all persons arrested for felonies in a state as large as Texas, this bill was always going to be an expensive proposition. We had to make a tactical decision whether we would put forth a bill that tested all felonies or just certain enumerated felonies to get the most bang for our buck. To reduce the cost of the bill, we would have to exclude most state jail felonies, with the exception of burglary and theft, felony DWI, and crimes under the Health & Safety Code. That left us with most of the violent felonies and a mix of other crimes, such as the 11 felony offenses for which the law as it existed then already allowed DNA collection after indictment.
            On the first day of the 2019 session, we learned that we had another ally in the House of Representatives. Rookie State Representative Reggie Smith (R–Van Alstyne) had also decided to take on the cause of DNA collection and filed House Bill 1399. That day I went to Representative Smith’s office, sat down with a legal pad, and went through most of the Penal Code with him. We chose 14 additional offenses along with the offenses already listed in the statute, and drafted a bill that would allow a swab for DNA upon arrest for any of them. I still have the original handwritten copy of the list—I carried it with me throughout the session. As copies of the list began to make their way around the capitol, I think it legitimized the work that we were doing on this bill when I pulled out the original.
            I stayed at the same hotel for days at a time. One day when I was checking in, there was a new girl at the front desk and she asked me if I had stayed there before and I said yes, six out of the last eight nights. Eventually they got to know me, and they could tell when I had had a particularly rough day because they would give me a room upgrade or even complimentary drinks at the bar. That’s another thing you should always do during the session: Develop a routine. And take time to learn the layout of the capitol—especially the locations of the important offices, parking, bathrooms, and secret staircases. Realize that Austin traffic is bad on a normal day and it is murder during the session. Give yourself (literally) an extra hour to get somewhere if you have to drive and park. Don’t expect an Uber driver to drop you off right at the door of the capitol. You might still have to walk two blocks, and you might get stuck behind several hundred fourth graders on a field trip going through the metal detectors. The capitol can throw you a lot of curveballs.
            We spent the first few weeks of the session visiting old friends and trying to make new ones. Committee assignments change from session to session, so as soon as the new committee assignments were posted, we spent several days speaking with all of the members of the House Criminal Jurisprudence Committee. Just when I thought I was starting to develop a strong relationship with its members, the capitol threw me a curveball: House Bill 1399[13] was sent to the House Homeland Security and Public Safety Committee instead of Criminal Jurisprudence. So almost two months into the session, it was like we were starting from scratch. We had learned from three previous sessions that the committee stage is where the legislature culls most of the herd. Of the thousands of bills that get filed every year, only a few get committee hearings and even fewer of those bills are voted out of committee. The vast majority die without ever coming up for a committee vote.
            So we went back to work. We had Jayann Sepich back for another session, and we also had a large network of individuals from Austin and around the state who helped us. Thanks to our hard work behind the scenes, on April 3, 2019, HB 1399 was heard in committee and unanimously voted out that same day. The next big obstacle was the Calendars Committee. By the time a bill gets to the Calendars Committee, you must have your message honed to a razor’s edge because there is very little room for error at this point. Our message was simple: This bill will save lives. We worked Calendars relentlessly and on April 23, HB 1399 was placed on the General State Calendar to be debated on the floor of the Texas House of Representatives. By this time, I had visited every member of the Texas House of Representatives. (Every. Single. One!) Some members remembered the bill from previous sessions and were glad that we were still coming back to pass this important legislation. As a courtesy, I even visited the offices of the members I knew were adamantly opposed.
            When the bill was called for debate on the House floor, our opponents tried to use several procedural maneuvers to derail it before the debate even started. But our sponsors overcame the points of order and the debate was on. Opponents argued that the bill was an invasion of privacy and a government overreach, but our supporters held steady. The initial floor vote was 91–50 in favor of the bill, setting up another dramatic vote the next day. (Why another vote? Well, the constitution requires all bills to be “read” three times before passage by each chamber. The “first reading” is when the bill is referred to a committee, but then a bill must be approved by the full House or Senate on “second reading” and again on “third reading.” Nothing can ever be easy at the capitol!) Again our opponents tried to pull out all the stops to defeat us. One even went so far as to call our bill “crap” on the House floor. But despite that colorful opposition, the bill passed by the narrow margin of 77–68. We were on to the Senate, where our local senator, Sen. Brandon Creighton, would have to help us push this boulder to the top.
            When April turns to May at the capitol, things turn up to a fever pitch. As much work gets done in the last 20 days of the session as in the first 120 days combined. We anticipated that our bill would be referred to the Senate Criminal Justice Committee, so we did a lot of work on that committee in early May, but the capitol threw us another curveball: The bill was referred to the Senate State Affairs Committee instead. Given the makeup of that committee—which included our bill’s sponsor—we actually felt pretty good about our chances.
            Committee hearings in the Senate are much different from committee hearings in the House. House committees hear dozens of bills at a time with multiple witnesses, and hearings can last all night. The Senate hears from whom they want to when they want to, so you better have your best people lined up and ready to go. Because of circumstances beyond anyone’s control, Jayann Sepich was not available to testify at the Senate, so we needed to bring in a big gun to replace her. The day before the hearing, we got the biggest gun we could find: Susana Martinez, the former Governor of New Mexico and the person who prosecuted Katie Sepich’s killer. Governor Martinez got on a plane and headed to Austin to testify at our hearing in the Senate, which helped those senators finally realize the importance and enormity of this bill. The chairwoman of the committee, Senator Joan Huffman (R-Houston), vowed to pass it and find money to pay for it. She was true to her word, and the bill passed the Senate 26–5 and was on to the Governor’s desk.
            Which still left the matter of whether he would sign the bill. We had been given all indications that he would, but that did not make the wait any easier. But on June 14, 2019, on a Friday afternoon, I got the email that I felt like I had been waiting for my whole life. House Bill 1399, the Krystal Jean Baker Act, had been signed into law by the governor. The confluence of events that had been weaving their way through my life and the lives of many others had finally drawn to a close.

What the new law says
Pursuant to House Bill 1399, a DNA sample now must be collected for placement into CODIS immediately after fingerprinting and at the same location as fingerprinting occurs when a defendant is arrested for any of the felonies listed in Texas Government Code §411.1471. Most states that have passed similar DNA collection statutes have seen dramatic results. For example, since enacting its DNA collection law in 2014, Nevada has placed 61,000 samples in CODIS. These samples have matched to more than 100 sexual assaults, 500 burglaries, 62 robberies, and nine murders including cold cases that date back decades![14] A study done by the city of Chicago showed that if eight defendants had their DNA taken at arrest, 30 murders and 22 rapes could have been prevented.[15] Every day our news stories are filled with more and more cold cases, some that go back years, which are being solved with DNA collection. 
            The DPS website contains a wealth of information concerning the implementation of House Bill 1399 and what procedures should be followed for DNA collection at booking. The following procedures are required for DNA collection at booking:
            1) develop a point of contact between Texas DPS CODIS and the collecting agency;
            2) determine which people are being arrested for a qualifying felony offense;
            3) check the arrestee’s criminal history to determine if his or her DNA sample is already on file;
            4) during the fingerprinting process, use a LiveScan to print out a copy of the CR-45 Ten-Prints that are collected at the time of booking. The copy of these fingerprints needs to be included with the DNA kit;
            5) escort the arrestee to an isolated area, such as a medical room or infirmary, to collect the DNA sample using a CODIS Buccal Swab Collection Kit;
            6) place the kit in the mail as soon as possible; and
            7) keep record of this collection. 
            There are many more details on the DPS website, and there is also a really good page for frequently asked questions.[16] Included in the FAQs is the question that has come up the most during the early stages of implementation, which is what to do if a suspect refuses to provide a sample. The official word from DPS is, “The law requires that eligible individuals give a sample. Each agency should develop a policy, in conjunction with its legal department, to determine to what extent the use of force should be employed as means of fulfilling the responsibility to enforce the law.” Also, anyone who may be handling a CODIS case should familiarize himself with the DPS Crime Lab Service Manual.[17] DNA information can be found on pages 114–119.
            Unlike our friend Sisyphus, we have finally pushed our boulder over the top of the mountain. Even though our work may never be done, we can finally rest.

Conclusion
When the Chambers County District Attorney’s Office first decided to take on this project, we had no idea that it would dominate years of our lives like it did, but we are happy that we took on the task. On September 1, 2019, the State of Texas officially began swabbing people arrested for 25 enumerated felonies for placement into CODIS.[18]
            By our count, it took four sessions, 23 trips to Austin, 12,052 miles, 51 nights at the Wyndham Garden Inn, and one (dead) deer. And about that picture with the Governor …

From the left. Chambers County Sheriff Brian Hawthorne; Theresa Bastian, whose sister was murdered in 1986 at age 13 in Washington and who waited 27 years until her sister’s murder was solved by a CODIS hit; State Representative Reggie Smith; Chambers County Assistant District Attorney Eric C. Carcerano; Senator Brandon Creighton; Governor Greg Abbott; Chambers County District Attorney Cheryl Swope Lieck; Jayann Sepich; Ashley E. Spence of Austin, who was the victim of an assault in Arizona while in college. Her assailant was apprehended by a CODIS hit in California; and Susana Martinez, former governor of New Mexico.

Endnotes

[1] N.M. Stat. Ann. §§ 29- 3-10, 29-16-10 (West 2013), SB 365 (2011), SB 216 (2006)

[2] La Rev Stat §15:609.

[3] http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=10658f91-3eff-4970-adcb-e96f5df1088a&coa=coa01&DT=Opinion&MediaID=a5e9b072-9c62-4300-beec-8b0abc47025e.

[4] https://capitol.texas.gov/tlodocs/77R/billtext/html/SB00638F.htm.

[5] La. Rev. Stat. Ann. §§15:609, 603, 614 (West 2012), SB 678 (2010), HB 346 (2009), SB 346 (2003), HB 1377 (1997)

[6] Ark. Code Ann. §§12- 12-1006, 1019, 1105 (West 2012) HB 1563 (2011), HB 1473 (2009); 74 Okla. Stat. Ann. §150.27a; N.M. Stat. Ann. §§29- 3-10, 29-16-10 (West 2013), SB 365 (2011), SB 216 (2006).

[7] 133 S.Ct. 1958 (2013).

[8] http://www.schoolhouserock.tv/Bill.html.

[9] https://capitol.texas.gov/BillLookup/History.aspx?LegSess=83R&Bill=HB1038.

[10] https://capitol.texas.gov/BillLookup/History.aspx?LegSess=84R&Bill=HB3740.

[11] https://capitol.texas.gov/BillLookup/History.aspx?LegSess=85R&Bill=HB3513.

[12] All I Really Need To Know I Learned in Kindergarten, Robert Fulghum. New York: Villard Books, 1988.

[13] https://capitol.texas.gov/BillLookup/History.aspx?LegSess=86R&Bill=HB1399.

[14] https://www.rgj.com/story/news/2018/01/28/briannas-law-has-matched-more-than-1-000-dna-samples-crimes/1062349001/

[15] http://www.dnasaves.org/files/ChicagoPreventableCrimes.pdf

[16] https://www.dps.texas.gov/CrimeLaboratory/CODIS/codisfaq.htm

[17] https://txdpslabs.qualtraxcloud.com/ShowDocument.aspx?ID=67475

[18] See Tex. Gov’t. Code §411.1471.