Interim Recap: April 2018

April 27, 2018

Can you believe there is still snow on the ground in some places? Brrrr.

“Re-imagining” state jails (again)

During this interim, the “Smart on Crime” confederation of criminal justice reform advocates have been hosting a series of information-gathering sessions around the state to come up with a consensus solution to the high recidivism rates among state jail offenders (which is somewhere north of 60 percent). Last week, they hosted a webinar to summarize some of the feedback they have received, and none of it will shock you. In a nutshell: SJF offenders increasingly prefer to take straight time in jail or SJF facilities instead of probation because probation is “too hard”; this is exacerbated when offenders who can’t make bond rack up jail credits that make final convictions easier to stomach due to a quicker release after sentencing; and once they begin down that path, these offenders are increasingly unlikely to escape the incarceration cycle.

While there is a fair amount of agreement on the existence of this cycle, there doesn’t seem to be any new idea on how to end it. Of course, that doesn’t mean that there aren’t any proposed solutions—several failed ideas from past legislative sessions have been put forth again, including:

  • reducing drug penalties from felonies to misdemeanors;
  • creating a “wobbler” sentence that re-categorizes a felony conviction as a misdemeanor upon successful completion of supervision (vetoed as HB 1790 back in 2013); and
  • imposing “presumptive” or mandatory pre-trial diversion by the court (which no one will define for us, but which has always sounded unconstitutional to us without more details).

One potential change that might meet with approval from various stakeholders involves the increased use of the split sentences authorized back in 2013 via SB 1173. However, to make that kind of post-confinement supervision effective, the current 2-year maximum sentence would probably have to be increased to three or four years, which could be hard for some reformers to stomach.

As of now this is all still up in the air, but if you would like to get involved in this process, contact Shannon and he will get you on the invitation list for future meetings and discussions.

Annual report on the judiciary

The Office of Court Administration (OCA) has released its 2017 Annual Report. Some of the highlights include:

  • A slowing of case dispositions in district courts (indicating increased docket backlogs) but an increase in dispositions in county courts;
  • Year-over-year increases in drug possession, domestic violence, robbery, and capital murder case filings, but decreases in fine-only (Class C) misdemeanor, DWI, murder, and theft (especially theft-by-check) case filings;
  • A five-percent overall increase in juvenile case filings driven by a rise in violent and sex crimes;
  • An all-time high in the number of applications for involuntary mental health commitments; and
  • At the appellate level, the Court of Criminal Appeals reversed 49 percent of the cases they accepted on PDR.

There are plenty of more details in the full report, so check it out at the link above for more information.

DPS Sunset review

On the heels of our March update, in which we told you that DPS was one of several agencies facing the sunset review process next session, the Sunset Advisory Commission has released its initial report on that agency. Among the key recommendations from the Commission are:

  • Consider transferring the state’s driver’s license program from DPS to DMV;
  • Require the agency to collect, maintain, and publicize more crime statistics related to border security operations; and
  • Discontinue superfluous DPS regulation of ignition interlock vendors, peyote distributors, and precursor chemical and lab apparatus sales.

Note that the Commission does not recommend any significant changes to DPS’s law enforcement or traffic enforcement duties; however, a DPS sunset bill could always be amended with little notice during the legislative process to make significant changes in those areas. Therefore, we will continue to watch this issue closely for you during the next session. Meanwhile, if you’re interested in reading more details about these sunset recommendations, visit this webpage.

One repercussion from the Sutherland Springs shooting

One of the consequences of the church shooting in Sutherland Springs—was that really almost six months ago?!?—is a renewed focus on accurate reporting of information that might disqualify someone from legally purchasing a firearm. To that end, the U.S. Attorney General recently issued a letter to the states encouraging them to improve their criminal history data reporting, which our governor and attorney general kindly sent to us here at TDCAA. Rather than share that 136(!)-page document with you, we’ll just point out that while Texas already fares much better at reporting dispositions than the national average, not everyone is up to snuff. To that end, if you or your local partners need help improving your reporting of criminal justice data, federal funding may be available for that purpose; visit for more details about two acronym-heavy programs—is there any other type with the Feds?—that have application deadlines in mid-May of this year.

Interim committee hearings

Here are some highlights of April’s interim hearings:

The House Appropriations Subcommittee for criminal justice, the judiciary, and public safety met to discuss DPS crime lab funding (including fees for services); adult and juvenile probation funding; and the status of rape kit backlogs. (Click here for the committee handouts on those topics.) Here’s a brief run-down on each topic:

Regarding DPS lab fee-for-services, none of the five subcommittee members voiced support for the idea, nor did any DPS employees. (All of which makes one wonder how it ended up in last session’s budget, but we’ll take our good news where we find it!) However, DPS faces various challenges in managing its workload—including employee turnover, training and accreditation requirements, voluminous requests, and more—leading to the backlogs that many of you know so well. (For what it’s worth, the entities that submit the most forensic requests to DPS are: Corpus Christi PD, Lubbock PD, Montgomery Co. SO, Plano PD, and Midland PD.) Among the ideas raised at the hearing for helping DPS successfully manage its workload include:

  • Expanding the lab reimbursements condition of probation (CCP Art. 42A.301(b)(18)) to include more than just testing for drugs and contraband, and improve the collection of the existing drug analysis reimbursement beyond the current 20-percent rate;
  • Revisiting the wisdom of SB 1292 (83rd R.S., 2013), which requires all biological evidence in a capital murder case to be DNA tested (effectively monopolizing the time of certain labs for one case); and
  • Improving communication with prosecutors so that the labs don’t waste time conducting tests that may no longer be needed due to changes in case status.

The concerns of prosecutors were ably represented by Washington & Burleson County DA Julie Renken, who reminded the committee members about the “ripple effect” that slow lab work has on the rest of the criminal justice system, so be sure to thank her for spending a day in Austin to remind them that they get what they pay for!

On the topic of probation funding, TDCJ is continuing to propose a change in the state’s funding mechanism that would replace simple per-day funding for a system that frontloads more funding for the first three years of supervision in exchange for reductions in funding for later years. (You will have to judge for yourself whether that creates any incentive for your probation departments to early-terminate cases once the funding starts to decline.) The agency is also requesting more funding for treatment and rehabilitation—especially for specialized populations, post-residential after-care, and pre-trial diversion programs supervised by local CSCDs—and an increase in misdemeanor supervision funding.

Regarding the juvenile system, TJJD announced that is has reduced its population to 890 juveniles (an historic low for the agency) but the seriousness of the crimes committed by those juveniles—and their levels of need—are much higher. As a result, the agency testified that funding needs would likely increase in the short-term even though they are managing fewer juveniles.

Finally, on the topic of sexual assault kit backlogs, DPS witnesses testified that it currently has 4,800 kits waiting to be tested (3,600 of which are less than 90 days old), but DPS also receives ~18,000 kits per year to test and is struggling to keep up with that workload. In addition, vendor and outsourcing problems continue to slow testing in places like Dallas and other areas.

The House Appropriations Committee reviewed the status of the $800 million it appropriated for border security over the biennium, including $12 million in border prosecution grants (distributed through the governor’s office) and $2.6 million to the attorney general’s office for border prosecution assistance. Click here for committee handouts on that topic (starting at p. 173).

The House Select Committee on Opioids & Substance Abuse held its second hearing and gathered information from a variety of invited witnesses; handouts and materials are available here if you want to delve deeper into this topic.

The House Criminal JurisprudenceCommittee met earlier this week in El Paso to take up issues relating to marijuana possession and other topics of interest to that community. Not much new arose regarding marijuana, but on a completely unrelated issue, several members of the local defense bar suggested the Legislature should repeal Family Code §264.408(d-1), which currently prevents copies of CAC video interviews from being given to the defense (so be on the lookout for that next session). In addition, a TCDLA representative suggested amending Gov’t Code §74.053 to allow either party in a criminal case to object to the appointment of a visiting judge, just as civil litigants can do (once per case). That is an idea that hasn’t been floated for several sessions, so if you like the idea of being able to veto the appointment of a specific visiting judge—or dislike the idea of the defense bar being able to veto said appointment—contact Shannon and let him know so he can pass that along to interested parties.

The House Judiciary & Civil Jurisprudence Committee met this morning to discuss several issues. Regarding the impact of Hurricane Harvey on the state’s court system, the panel took testimony from Chief Justice Hecht and other judges impacted by the storm about the need to provide the judiciary and local officials with greater flexibility in when and where courts can meet, which is something we discussed in our journal soon afterwards. It’s a pretty good bet that some legislation on this front will be filed next session but too soon to say what it will look like. The committee also heard from the Office of Court Administration (OCA) about problems with the current court costs and fees system, including some costs being struck down by the courts (as in last year’s Salinas opinion from the CCA). The OCA noted that there are 143 different criminal courts costs and more than 200 civil filing fees currently on the books, and that the courts annually collect more than $1b of these costs and fees, but only $400m comes back to the judicial system. The rest goes to the state for other purposes or to various county coffers. The single biggest non-judicial beneficiary of court costs and fees is the State Highway Fund; if that cost collection and transfer is found to be unconstitutional, it could blow a significant hole in state transportation funding (which might finally force the legislature to act). Like the disaster contingency issue, this topic is also ripe for change next session, and we will keep a close eye on it going forward.

Future interim hearings

The only relevant hearings posted for May (with links to official notices) so far are:

House Corrections Committee

Tuesday, May 1, 10:00 a.m., State Capitol Room E2.010

CHARGES: TDCJ’s response to natural disasters; best practices for using social workers for offender re-entry; assessing services and programs available for female offenders.

House Pensions Committee

Thursday, May 10, 10:00 a.m., Dallas City Hall Council Chambers

CHARGE: Evaluate ways to strengthen and improve public pension systems.

If you have questions about any of these hearings, please contact Shannon for more details.

Upcoming TDCAA training opportunities

Registration is open for TDCAA’s Forensic Evidence Seminar. From DNA to firearms, this course will provide prosecutors and their investigators with the knowledge and skills necessary to see justice done. The course will be held June 13­–15 in Dallas. For more information, click here!

Quotes of the Month

“We’re just recognizing how powerful district attorneys are in shaping criminal justice policies, both at the local level, but also at the statehouse. The lobbying power of prosecutors is really a substantial force almost everywhere we want to see change made in the criminal justice system.”

Taylor Pendergrass, with the ACLU’s “Campaign for Smart Justice,” quoted in a national op/ed entitled “The Next Frontier in Criminal Justice Reform” in which the author argues that current prosecutors must be defeated at the ballot box (and the legislature) and replaced with candidates like new Philadelphia DA Larry Krasner to enact true criminal justice reform.

“You’ve got to go to Austin. You’ve got to go to our state capitol, because, number one, someone has to have checks and balances. I just told you why wrongful convictions happen: biased judges and prosecutors and jury panels in our courtrooms are why people get convicted of crimes. Laziness by the police department. If you can get things put in place that hold these people accountable for wrongful convictions, giving them prison time, then they’ll see how it feels.”

Texas exoneree Christopher Scott, in response to a question asking “What improvements can be made to reduce the number of false convictions?”

“When the resources of the Attorney General are needed, local prosecutors can receive and have received A.G. assistance. It is up to the local prosecutor to work with the A.G. on a specific case. For instance, Assistant A.G.s are currently sworn in as Special Assistant D.A.s in my office to join in prosecuting a human trafficking case. I don’t see anything wrong with that model.”

Travis County DA Margaret Moore, in an article discussing potential legislative attempts to give the attorney general greater prosecutorial authority over human trafficking and abortion-related crimes.

“I don’t understand why you have this preferred status under the law.”

State Rep. Rene Oliveira, Chairman of the House Business & Industry Committee, questioning representatives of the rent-to-own industry during a hearing earlier this month regarding special Penal Code presumptions that favor those companies in certain theft of service cases.

“We talk about due process of law—I call this overdue process of law.”

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, explaining why some crime victims’ advocates support Texas’ application to “opt in” to shorter death penalty filing deadlines under the Antiterrorism and Effective Death Penalty Act (AEDPA).

“We’ve always gone after the driver, but we think communities want more.”

Harris County DA Kim Ogg, on why her office charged three people for providing an underaged driver with alcohol before the driver caused a fatal crash killing a mother and her infant son. (The driver is charged with intox manslaughter.)

“In December of 2016, Sacramento Superior Court Judge Michael Bowman dismissed charges against the owners of, saying that ‘Congress has spoken on this matter, and it is for Congress, not this court, to revisit.’ … Consider it revisited.”

U.S. Sen. Ted Cruz (R-TX), explaining why Congress passed the Stop Enabling Sex Traffickers Act/Fight Online Sex Trafficking Act (SESTA/FOSTA) and why the Department of Justice has taken action against and other similar websites that profit from human trafficking.

“Texas had the guts to do what other states did not.”

Rebecca Musser, former member of the FLDS sect run by polygamist child abuser Warren Jeffs, commenting on this month’s 10th anniversary of the successful raid of the Yearning for Zion (YFZ) Ranch in Eldorado, Texas.

“At the end of your life you will never regret not having passed one more test, not winning one more verdict, or not closing one more deal. You will regret time not spent with a husband, a friend, a child or a parent.”

Former First Lady Barbara Bush, in a commencement address at Wellesley College in 1990. Mrs. Bush passed away last week at the age of 92 as only the second woman in history to be both a wife and a mother of presidents.