Best of luck to everyone on the ballot for next week’s primary contests.

DPS crime lab announcement

By now most of you have seen the letter DPS issued last week announcing its plan for how to eat the elephant that is marijuana THC quantification. (Answer: One leafy felony bite at a time, but no misdemeanors and no edibles.) And even that promised testing for felony plant material appears to be slowed once again—first it was to be ready by January, then February, now more like June or July. But we guess that’s a start, at least when it comes to felony-level amounts. Ultimately this problem is one of simple math: Too many cases plus not enough money from the Lege equals no state testing and hard choices for local officials. It’s the definition of an unfunded mandate, but it’s not the first to roll downhill from Austin, nor will it be the last.

As for what to do with evidence in the approximately 80,000 misdemeanor marijuana arrests that occur in Texas every year, our advice might best be summed up as “¯\_(ツ)_/¯.” There may be some creative half-solutions and work-arounds available to you depending on your local resources, but our only rock-solid recommendation is to do the best you can with what you have and try not to get stuck taking the blame for a problem not of your making.

Sexual assault audit

The State Auditor’s Office (SAO) has gone live with its legislatively-mandated survey to collect information from district attorneys’ offices about their processes for screening and prosecuting sexual assault crimes. All felony prosecutors should have received a link by email to complete that survey, but for those of you who have not started the survey, another link reminder will be sent in the coming weeks. If you have not received that link but want to get started on it sooner, please contact [email protected] or call Thomas Mahoney at 512/936-9500. The online survey will be accessible through Friday, March 20, 2020.

Firearm admonition

The Texas Judicial Council met earlier this month and among the items on the agenda was the promulgation of a rule requiring a post-sentencing admonition (in appropriate cases) regarding a person’s ineligibility to possess a firearm or ammunition. The proposed rule can be read here, although it may be further tweaked before final publication and adoption. It remains to be seen how this new judicially-created admonition will work in practice once it is imposed statewide (at a yet-to-be-determined date), but be wary of its potential to create additional post-conviction litigation.

Free mental health books

The Judicial Commission on Mental Health (JCMH) has two FREE publications to share with you:

1) The Texas Mental Health and Intellectual and Developmental Disabilities Law: Selected Statutes and Rules combines relevant civil and criminal law into one code book and is available from the JCMH at [email protected]; and
2) The Second Edition of the JCMH Bench Book has been reprinted and can be requested via that same email address.

But that’s not all!

NAMI Texas also recently published the 6^th edition of its Texas Criminal Procedure and the Offender with Mental Illness: An Analysis and Guide by Texas Tech School of Law professor Brian Shannon. As with previous editions of this book, NAMI Texas will use grant funds to distribute free copies to Texas judges, prosecutors, criminal defense attorneys, and others, and the publication is also available for downloading in PDF format at https://namitexas.org/texas-criminal-justice-guide/. The book was made possible through a grant from the Texas Bar Foundation.

Interim committee hearing recaps

Some observations from interim committee hearings held this month … the Harris County Attorney’s Office appeared before the House Ways & Means Committee seeking the authority to recover tax delinquency collection costs via a proposed fee that would eliminate the need to file a lawsuit first. As you might imagine, that reasonable idea was not popular with several witnesses who have a dog in that hunt and claim that only a private, third-party tax collection firm (like one rhyming with “binelarger”) can do this work effectively, so how that idea fares at the Lege next session remains to be seen. … The House Higher Education Committee heard complaints about the lack of criminal prosecutions for college hazing incidents and hopes that new laws in that area might increase the profile of those cases. … The Senate State Affairs Committee got an update on human trafficking, including testimony from TDCAA President (and Rockwall County CDA) Kenda Culpepper and new staff at the Attorney General’s Office tasked with those duties, in what was a very cordial, collaborative presentation. That committee also took testimony on low-level theft enforcement and heard from Dallas County CDA John Creuzot about the challenges of implementing evidence-based anti-recidivism measures to address that issue and related problems. … And the Senate Transportation Committee considered suggestions to reduce traffic fatalities in Texas, including those caused by intoxication (the second-leading cause of motor vehicle fatalities in 2019) and distracted driving. Among the options presented from other states were mandatory motorcycle helmet laws, automated speed enforcement, and DWI sobriety checkpoints—all of which have been successful elsewhere but are politically unviable here.

Interim committee hearings

Legislative committees have posted notice for the following interim hearings in March:

House Committee on Pensions, Investments, & Financial Services
Monday, March 9, 2020, at 10:00 a.m.
Capitol Extension Room E2.026, Austin, TX
Relevant topics: Implementation of HB 2945 (combatting fuel pump credit card skimmers)

Senate Select Committee on Mass Violence Prevention & Community Safety
Tuesday, March 10, 2020, at 9:00 a.m.
Capitol Extension Room E1.036, Austin, TX
Relevant topics: Potential regulation of stranger-to-stranger gun sales

House Select Committee on Mass Violence Prevention & Community Safety
Wednesday, March 11, 2020 at 9:00 a.m.
Student Center Ballroom, University of Houston, Houston, TX
Relevant topics: Criminal history data and firearms; digital media threat detection; cybersecurity

Senate Committee on Health & Human Services
Monday, March 30, 2020, at 9:00 a.m.
Capitol Extension Room E1.012, Austin, TX
Relevant topics: DFPS placements and terminations; family preservation; community-based care

Use the hyperlinks above for more details about each hearing. If after reading a posted notice you still have questions, contact Shannon for more information.

Crimes Against Children Conference

Online registration for our Crimes Against Children Conference is now open. The course will be held in mid-April at the Omni Westside Hotel in Katy, just west of Houston. For more information or to sign up online, visit https://www.tdcaa.com/training/crimes-against-children-conference/.

National Computer Forensics Institute Course

Registration for various National Computer Forensics Institute (NCFI) Prosecutor Courses are now available online at https://ncfi.knack.com/digitalevidenceforprosecutors. These five-day courses focus on digital evidence, computer forensics, and social networks for state and local prosecutors. All costs associated with the course (including travel) are covered through the federal government. The dates for the courses are June 8–13, July 13–17, July 27–31, August 24–28, and September 14–18 for Digital Evidence for Prosecutors (DEP); and September 21–25 for Advanced Digital Evidence for Prosecutors (ADEP). The deadline to apply is March 13, 2020.

Quotes of the Month

“At a minimum, it will affect rural law enforcement—who don’t have the resources for this—and rural prosecutors.”
            —A.J. Louderback, Jackson County Sheriff, on the impact of DPS’s formal decision to not accept misdemeanor marijuana cases for THC testing.

“I’m happy to see higher parole approval rates, but it shows that parole approval is based on whether the state wants to save money—not whether people are good candidates for parole.”
            —Doug Smith, policy analyst with the Texas Criminal Justice Coalition, attributing the recent announcement that TDCJ will close two more prison units to an increase in parole approval rates, or what he terms a “parole kick-out.”

“It’s not a simple answer. That’s part of the problem with some of these questions. You’re forced into a purity test and it’s a yes or no answer.”
            —Glenn Rogers, Republican candidate for an open Texas House seat located between Fort Worth and Abilene, on why he retreated from opposing a ban on so-called “taxpayer funded lobbying” after receiving criticism from certain party activists.

“The sands continue to shift in the politics of the Democratic party. A platform that seemed progressive four years ago now seems outdated and not ambitious enough. … Prosecutors are supposed to be these hard-nosed, cigarette-stubbing, coffee-swilling attorneys who are putting criminals behind bars. A progressive prosecutor seems to be a bit of an oxymoron. But they’re becoming more common in these big urban areas.”
            —Brandon Rottinghaus, University of Houston political scientist, in a Texas Monthly article about the Democratic primary race for Harris County DA.

“Absolutely. I have less confidence in the criminal justice system. … If you can go into a grand jury and you don’t even have to record anything, and then if you happen to lie to the grand jury—if you’re the DA and you lie—there’s no consequence for that, and there’s no remedy for the defendant. … We have, I think, one of the worst grand jury systems in the country.”
            —Ken Paxton (R-McKinney), Texas Attorney General, on a recent episode of Y’all-itics, WFAA’s Texas politics podcast, when asked if his pending criminal case has changed his view of the criminal justice system. (For his full comments on proposed grand jury reforms, start at the 35:20 mark of this video.)

“… I think [being] a prosecutor is an honorable job. I am disheartened that the work is not being portrayed the way it should be.”
            —Jackie Lacey, Los Angeles (CA) DA running for re-election in that county’s upcoming Democratic primary, responding to attacks from certain criminal justice reform advocates in that state.

###

The new year has kicked off with a bang—read on for information about the impending sexual assault audit survey, domestic terrorism, ethics, pro tem appointments, interim legislative hearings, and more.

An important message from our friends at the State Auditor’s Office

As required by House Bill 1, which was approved during the 2019 Texas legislative session, the State Auditor’s Office (SAO) is conducting an audit to examine the investigation and prosecution processes for reported adult and child sexual assaults in Texas during calendar years 2014 through 2018. As a part of that audit, we are conducting a survey to collect information from district attorneys’ offices about their process for prosecuting sexual assault crimes. The survey includes questions on collecting information about the district attorneys’ offices, the prosecution process, and feedback about opportunities for and challenges to improving the sexual assault prosecution process.

A link to a Web-based version of the survey will be sent to all felony prosecutor offices via email on Monday, February 10, 2020, and it will be accessible through Friday, March 20, 2020. We anticipate the survey will take about 20 minutes to complete. SAO audit staff will be available to answer any questions about the survey and may periodically follow up with your office to ensure that we have received your survey responses.

Please note that the responses to the survey are considered an audit working paper of the SAO and are confidential and exempt from public release under the Texas Public Information Act (Texas Government Code, Section 552.166). Your responses to the survey will be compiled and analyzed along with responses received from other district attorneys’ offices. Those responses will be summarized at a statewide level and included in the SAO’s final audit report that will be released no later than November 1, 2020. If your office has any questions about the survey, please contact us at [email protected] or call Thomas Mahoney at 512-936-9500.

Domestic terrorism

Lubbock County CDA Sunshine Stanek has been appointed to the Governor’s Domestic Terrorism Task Force. She is currently working on a multi-agency collaborative effort to propose language creating a state domestic terrorism statute which would address threats and other substantial steps towards attacks of mass violence. If you or people in your office have given any thought to this problem or have ideas you would like to share with her, please contact her at [email protected] or (806) 775-1105.

Ethics opinion comments sought

As part of its new practice of posting proposed ethics opinions for public comment before issuing those opinions, the Texas Supreme Court’s Professional Ethics Committee (which writes ethics opinions for members of the State Bar of Texas) is seeking input on proposed opinion no. PO-20-2, which concerns the disclosure and discovery duties of a criminal defense attorney who possesses evidence of a crime. To review the question and proposed answer and to submit a comment, use this link. (And note that a similar solicitation has been sent to TCDLA as well.)

Prosecutor pro tem appointments

In case you missed it, the Office of Attorney General issued a reminder earlier this month related to the appointment of their lawyers in local cases; the full text of the message is available on our website here.

Interim committee hearings

The looming primary elections have the attention of most legislators right now, but committee hearing notices are beginning to trickle out from Austin. Here are current postings that might interest some of you (click on the title link for more details):

House Committee on Ways & Means
Wednesday, February 5, 2020, at 10:00 a.m.
Capitol Extension Room E2.012, Austin, TX
Topics: Use of third-party tax collection firms by local governments

House Committee on Higher Education
Tuesday, February 11, 2020, at 11:00 a.m.
Capitol Extension Room E2.026, Austin, TX
Topics: Sex crimes on campus; hazing

Senate Committee on Veterans Affairs & Border Security
Monday, February 24, 2020, at 1:00 p.m.
Harlingen Convention Center, Harlingen, TX
Topics:  Veteran treatment courts, veteran health care, and veteran mental health

Senate Committee on State Affairs
Wednesday, February 26, 2020, at 10:00 a.m.
Senate Chamber, Austin, TX
Topics: Human trafficking; Second Amendment; personal property theft

Senate Committee on Transportation
Wednesday, February 26, 2020, at 10:00 a.m.
Capitol Extension Room E1.016, Austin, TX
Topics: Traffic fatalities (including by intoxication); monitor new legislation

If after reading a posted notice online you still have questions, contact Shannon for more information.

Crimes Against Children Conference

Online registration for our Crimes Against Children Conference is now open. The course will be held in mid-April at the Omni Westside Hotel in Katy, just west of Houston. For more information or to sign up online, visit https://www.tdcaa.com/training/crimes-against-children-conference/.

Quotes of the Month

“They legalized a plant that has a distinction that’s invisible to everyone except a machine. [My client] got searched because they smelled marijuana. Well, they can’t smell marijuana anymore. They can smell cannabis.”          
            —Adam Tisdell, a criminal defense attorney in Amarillo representing a man who spent a month in federal detention for transporting more than three thousands of pounds of legal hemp initially thought by the arresting officers to be illegal marijuana (until crime lab reports eventually proved otherwise). His client now intends to sue for wrongful arrest.

“What the hemp bill has done is to create change at the local level in Texas; it’s got people talking about cannabis not in a scary way but in a practical way that highlights just how harsh and unreasonable our current policies are.” 
            —Heather Fazio, director of Texans for Responsible Marijuana Policy, in an article discussing efforts of some Austin city council members to ban local police from using city funds for lab testing of suspected marijuana.

“I was surprised by news reports today indicating there may be support for abandoning the long-time democratic practice of partisan election of judges by the Texas Commission on Judicial Selection …. Texans feel strongly about voting for their judges. The commission will need to make a compelling argument to the people and legislators to change the current system. I do not believe that support exists today.”
            —Lt. Gov. Dan Patrick (R-Houston), in a press release raining on the parade of anyone who wants to move away from the popular election of judges in Texas.

“Since about 2008, 2009, the instances in which AGs have refused to defend state laws has really increased pretty dramatically, and I think that’s a reflection of increased polarization both in American society in general, as well as amongst the AGs specifically.”
            —Paul Nolette, associate professor at Marquette University, commenting upon Attorney General Ken Paxton’s refusal to represent the Commission on Judicial Conduct, which is being sued for sanctioning a judge who refuses to officiate over same-sex marriages.

“It is quite unfortunate that so few people do show up for something that was considered to be such an important aspect of our liberty.”
            —Charles “Rocky” Rhodes, constitutional law professor at South Texas College of Law, commenting upon a recent Houston Chronicle story on the low jury summons appearance rates in Harris County (just 22 percent in 2019).

“I think small towns like [Channing] are going to finally dry up. People want to be where the action is, seems like. I don’t like action. I like the slower pace.”
            —Bob Cates, retired Panhandle cowboy and caretaker of the XIT Ranch general office (and unofficial museum) in Channing (Hartley County), Texas.

“The things you see as a prosecutor, you can’t un-see. The way you recover from that is through hope. My job is to comfort and offer encouragement, and to suggest to them there is hope out there.”
            —Walt Merrell, Covington County (AL) DA, on his new role as chaplain for the Alabama District Attorneys Association, a position created to help prosecutors in that state deal with the trauma and heartbreak they encounter on their jobs.

###