NEWLY MINTED CRIMINAL LAWS

HON. ELSA ALCALA Texas Court of Criminal Appeals 201 W. 14th Street Austin, Texas 78701

State Bar of Texas 41ST ANNUAL ADVANCED CRIMINAL LAW COURSE July 27-30, 2015 San Antonio

CHAPTER 29

Judge Elsa Alcala

Judge Elsa Alcala is a judge on the Court of Criminal Appeals, the highest court for criminal cases in Texas. Before joining the Court, Judge Alcala was a justice on the First Court of Appeals for nine years and a judge on the 338th District Court in Houston for over three years. Before becoming a judge, she was an assistant district attorney for the Harris County District Attorney’s Office for nine years. She is a specialist both in criminal law and criminal appellate law as certified by the Texas Board of Legal Specialization.

Newly Minted Criminal Laws Chapter 29

TABLE OF CONTENTS

I. THE PENAL CODE ...... 1 A. SB 344 – Amended Felony, Online Solicitation of a Minor ...... 1 1. The Law Before 9/1/15 ...... 1 2. The Problem with the Current Law ...... 1 3. The Law On and After 9/1/15 ...... 1 B. SB 1828 – New Felony, Cargo Theft ...... 2 1. The Law Before 9/1/15 ...... 2 2. The Problem with the Current Law ...... 2 3. The Law On and After 9/1/15 ...... 2 C. SB 835 – New Misdemeanor, False Military Record ...... 2 1. The Law Before 9/1/15 – Offense is a Class C Misdemeanor...... 2 2. The Problem With the Current Law ...... 2 3. The Law On and After 9/1/15 – Offense is a Class B Misdemeanor ...... 2 D. SB 461 – New Misdemeanor, Abusable Synthetic Substances ...... 2 1. The Law Before 9/1/15 ...... 2 2. The Problem with the Current Law ...... 3 3. The Law On and After 9/1/15 ...... 3 E. HB 975 – New Misdemeanor, Misconduct Related to Charitable Raffles ...... 3 1. The Law Before 1/1/16 ...... 3 2. The Problem with the Current Law ...... 3 3. The Law On and After 1/1/16 ...... 3 F. HB 207 – New Offense, Voyeurism ...... 3 1. The Law Before 9/1/15 ...... 3 2. The Problem with the Current Law ...... 3 3. The Law On and After 9/1/15 ...... 3 G. HB 511 – Relating to Offenses Committed Against Persons in Custody...... 4 1. The Law Before 9/1/15 ...... 4 2. The Problem with the Current Law ...... 4 3. The Law On and After 9/1/15 ...... 4 H. HB 896 – Relating to Offense of Breach of Computer Security ...... 4 1. The Law Before 9/1/15 ...... 4 2. The Problem with the Current Law ...... 4 3. The Law On and After 9/1/15 ...... 4 I. SB 473 – New Defense to Possession of Prohibited Explosive Weapons, Firearms, and Related Items...... 4 1. The Law Before 9/1/15 ...... 4 2. The Problem with the Current Law ...... 4 3. The Law On and After 9/1/15 ...... 4 J. HB 1396 – Changing Punishment Ranges for Certain Offenses ...... 4 1. Law Before 9/1/15 ...... 4 2. The Law On and After 9/1/15 ...... 5 K. SB 11 – Defenses Related to Campus Carry ...... 5 1. The Law Before 8/1/16 ...... 5 2. The Problem with the Current Law ...... 5 3. The Law On and After 9/1/15 ...... 5 L. SB 825 – Creating Additional Penalties for Prostitution ...... 6 1. The Law Before 9/1/15 ...... 6 2. The Problem with the Current Law ...... 6 3. The Law On and After 9/1/15 ...... 6 M. HB 910 – Open Carry ...... 6

II. THE CODE OF CRIMINAL PROCEDURE ...... 6 A. SB 487 – Alters Standard for Post-Conviction DNA Testing ...... 6 1. The Law Before 9/1/15 ...... 6 2. The Problem with the Current Law ...... 6 3. The Law On and After 9/1/15 ...... 6 i Newly Minted Criminal Laws Chapter 29

B. SB 888 – Interlocutory Appeal of Certification of Juvenile for Prosecution as an Adult ...... 6 1. The Law Before 9/1/15 ...... 6 2. The Problem with the Current Law ...... 6 3. The Law On and After 9/1/15 ...... 7 C. HB 10 – Concerning Compelling Prostitution and Human Trafficking ...... 7 1. The Law Before 9/1/15 ...... 7 2. The Problem with the Current Law ...... 7 3. The Law On and After 9/1/15 ...... 7 D. SB 662 – Providing Counsel for Certain Applicants for Writs of Habeas Corpus ...... 7 1. The Law Before 9/1/15 ...... 7 2. The Problem with the Current Law ...... 7 3. The Law On and After 9/1/15 ...... 8 E. HB 1264 – Permits Destruction of DWI/DUI Evidence ...... 8 1. The Law Before 9/1/15 ...... 8 2. The Problem with the Current Law ...... 8 3. The Law On and After 9/1/15 ...... 8 F. HB 48 – Creating the Timothy Cole Exoneration Review Commission ...... 8 1. The Law Before 6/1/15 ...... 8 2. The Problem with the Current Law ...... 8 3. The Law On and After 6/1/15 ...... 8 G. HB 326 – Search Warrants on Information Provided by Electronic Means ...... 9 1. The Law Before 9/1/15 ...... 9 2. The Problem with the Current Law ...... 9 3. The Law On and After 9/1/15 ...... 9 H. HB 2150 – Formation of Grand Juries ...... 9 1. The Law Before 9/1/15 ...... 9 2. The Problem with the Current Law ...... 9 3. The Law On and After 9/1/15 ...... 9 I. HB 3633 – Reimbursement for Costs of Legal Services ...... 9 1. The Law Before 9/1/15 ...... 9 2. The Law On and After 9/1/15 ...... 9 J. HB 1546 – Diligent Participation Credits for State Jail Felons ...... 9 1. The Law Before 9/1/15 ...... 9 2. The Problem with the Current Law ...... 10 3. The Law On and After 9/1/15 ...... 10 K. HB 372 – Electronic Monitoring of Registered Sex Offenders ...... 10 1. The Law Before 9/1/15 ...... 10 2. The Problem with the Current Law ...... 10 3. The Law On and After 9/1/15 ...... 10 L. HB 510 – Disclosure of Information about Expert Witnesses ...... 10 1. The Law Before 9/1/15 ...... 10 2. The Problem with the Current Law ...... 10 3. The Law On and After 9/1/15 ...... 10 M. SB 1071 – Notification of Scheduled Execution Date ...... 10 1. The Law Before 9/1/15 ...... 10 2. The Problem with the Current Law ...... 10 3. The Law On and After 9/1/15 ...... 11 N. SB 112 – Emergency Protective Orders ...... 11 1. The Law Before 5/23/15 ...... 11 2. The Problem with the Current Law ...... 11 3. The Law On and After 5/23/15 ...... 11 O. HB 1396 – Searches of Cell Phones ...... 11 1. Law Before 9/1/15 ...... 11 2. The Law On and After 9/1/15 ...... 11 P. HB 1396 – Preference for Trials Involving Child Victims ...... 11 1. The Law Before 9/1/15 ...... 11 2. The Law On and After 9/1/15 ...... 11 ii Newly Minted Criminal Laws Chapter 29

Q. HB 189 – Statute of Limitations for Sexual Assault ...... 11 R. HB 211 – Competency to Stand Trial ...... 12 S. HB 643 – Discharge of Bail ...... 12 T. HB 3724 – Considering Scientific Evidence in a Writ Application ...... 12 U. HB 3791 – Recording Police Interactions ...... 12

III. THE GOVERNMENT CODE ...... 12 A. SB 1697 – Identity of People Involved in Executions ...... 12 1. The Law Before 9/1/15 ...... 12 2. The Problem with the Current Law ...... 12 3. The Law On and After 9/1/15 ...... 12 B. HB 1481 – New Offense, Operation of Unmanned Aircraft Over Critical Infrastructure Facilities ...... 12 1. The Law Before 9/1/15 ...... 12 2. The Problem with the Current Law ...... 12 3. The Law On and After 9/1/15 ...... 13 C. SB 1116 – Electronic Notification by Courts and Judges ...... 13 1. The Law Before 9/1/15 ...... 13 2. The Problem with the Current Law ...... 13 3. The Law On and After 9/1/15 ...... 13 D. SB 578 – Providing Inmates with Information Regarding Reentry and Reintegration ...... 13 1. The Law Before 9/1/15 ...... 13 2. The Problem with the Current Law ...... 13 3. The Law On and After 9/1/15 ...... 13 E. HB 1396 – Construction of Statutes ...... 13 1. The Law Before 9/1/15 ...... 13 2. The Problem with the Current Law ...... 13 3. The Law On and After 9/1/15 ...... 13 F. HB 1690 – The Public Integrity Unit ...... 14 1. The Law Before 9/1/15 ...... 14 2. The Problem with the Current Law ...... 14 3. The Law On and After 9/1/15 ...... 14 G. SB 1743 – Office of Forensic Writs ...... 14 1. The Law Before 9/1/15 ...... 14 2. The Problem with the Current Law ...... 14 3. The Law On and After 9/1/15 ...... 14 H. SB 1902 – Orders of Non-Disclosure ...... 14 1. The Law Before 9/1/15 ...... 14 2. The Problem with the Current Law ...... 14 3. The Law After 9/1/15 ...... 14 I. HB 3628 – Unmanned Aircraft at the Capitol Complex ...... 15

IV. MISCELLANEOUS PROVISIONS ...... 15 A. SB 534 – Changing Certain Language in the Oath ...... 15 B. SB 172 & SB 173 – Controlled Substances Act ...... 15 C. SB 97 – Regulating “E-cigarettes” ...... 16 D. SB 505 – Meteorological Evaluation Towers...... 16 E. SB 570 – Prohibited Use of Fireworks ...... 16 F. SB 899 – Regulation of Money Services Businesses ...... 16 G. SB 1353 – Improving Indigent Defense ...... 16 H. SB 1707 – Sealing of Certain Juvenile Records ...... 16

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NEWLY MINTED CRIMINAL LAWS 17 years of age, or whom the actor believes to be younger than 17 years of age. This paper was prepared by Judge Elsa Alcala, The statute described the defenses. Section Court of Criminal Appeals, in June 2015, with research 33.021(d) provided that it was not a defense to assistance from CCA staff members Ingrid Grobey and prosecution under Subsection (c) that the meeting did Philip Harris. This paper addresses new legislation not occur, that the actor did not intend for the meeting affecting (I) the Penal Code, (II) the Code of Criminal to occur, or that the actor was engaged in a fantasy at Procedure, (III) the Government Code, and (IV) the time of the commission of the offense. Section miscellaneous provisions. 33.021(e) made it a defense to prosecution under This is not intended to be a fully exhaustive Subsections (b) and (c) that, at the time of the conduct review of every bill passed during the 84th Legislative was committed, the actor was married to the minor or Session that affects criminal law. Governor Abbott has the actor was not more than three years older than the until June 21, 2015 to sign or veto bills sent to him by minor and the minor consented to the conduct. the last day of the regular session, June 1, 2015. Because this paper went to press before the last day 2. The Problem with the Current Law permitted for a veto, some of the information contained In Ex parte Lo, the Court of Criminal Appeals within it may be incomplete. Where it is noted that a held that Subsection (b) was unconstitutional under the bill was sent to the Governor, the bill could still be First Amendment of the federal constitution. Ex parte subject to a veto. Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The Court held that regulations seeking to restrict and punish I. THE PENAL CODE speech based on content are presumed invalid, and that A. SB 344 – Amended Felony, Online Solicitation the State had failed to rebut that presumption. of a Minor Specifically, the Court held that the statute as written Signed 5/22/15 (Effective 9/1/15) was “overbroad because it prohibits a wide array of constitutionally protected speech and is not narrowly 1. The Law Before 9/1/15 drawn to achieve only the legitimate objective of A portion of the online solicitation of a minor protecting children from sexual abuse.” The Court’s statute applied to sexually explicit communications. decision in Lo left the remainder of the statute intact. Texas Penal Code § 33.021(b) stated, “A person who is 17 years of age or older commits an offense if, with the 3. The Law On and After 9/1/15 intent to arouse or gratify the sexual desire of any SB 344 amends Texas Penal Code § 33.021(b) by person, the person, over the Internet, by electronic mail stating, “A person who is 17 years of age or older or text message or other electronic message service or commits an offense if, with the intent to commit an system, or through a commercial online service, offense listed in Code of Criminal Procedure Article intentionally: (1) communicates in a sexually explicit 62.001(5)(A), (B), or (K), [continuous sexual abuse of manner with a minor; or (2) distributes sexually a child, indecency with a child, sexual assault, explicit material to a minor.” aggravated sexual assault, prohibited sexual conduct, Another portion of the statute applied to a compelling prostitution, sexual performance by a child, solicitation to meet. Section 33.021(c) stated, “A or possession or promotion of child pornography, or person commits an offense if the person over the trafficking of persons] arouse or gratify the sexual Internet, by electronic mail or text message or other desire of any person, the person, over the Internet, by electronic message service or system, or through a electronic mail or text message or other electronic commercial online service, knowingly solicits a minor message service or system, or through a commercial to meet another person, including the actor, with the online service, intentionally: (1) communicates in a intent that the minor will engage in sexual contact, sexually explicit manner with a minor; or (2) sexual intercourse, or deviate sexual intercourse with distributes sexually explicit material to a minor.” the actor or another person.” SB 344 changes the definition of minor to no The statute included definitions for the words longer require that the minor represent himself or “sexually explicit” and “minor.” Section 33.021(a) herself to be younger than 17 years of age, so that if an defined “Sexually Explicit” as “any communication, individual is actually younger than 17 years of age, the language, or material, including a photographic or statute defines that person as a minor. The definition video image, that relates to or describes sexual for “minor” continues to include an individual who the conduct, as defined by Section 43.25 [deviate sexual actor believes to be younger than 17 years of age. intercourse, sexual contact, and sexual intercourse].” SB 344 changes Subsection (d) to state that it is Section 33.021(a) defined “Minor” as an individual not a defense to prosecution that the meeting did not who represents himself or herself to be younger than occur. That the actor did not intend for the meeting to occur and that the actor was engaged in a fantasy at the 1 Newly Minted Criminal Laws Chapter 29 time of the offense are no longer disallowed as c. $100,000 or more but less than $200,000, it defenses. is a second degree felony; SB 344 changes Subsection (e) so that it is no d. $200,000 or more, it is a first degree felony. longer a defense under Subsection (b) that the actor was married to the minor or that the actor was not more The total value of the cargo involved in the activity than three years older than the minor and the minor includes the value of any vehicle stolen or damaged in consented to the conduct. the course of the same criminal episode as the conduct that is the subject of the prosecution. Punishment is B. SB 1828 – New Felony, Cargo Theft increased to the next higher category of offense if it is Sent to Governor 6/01/15 (Effective 9/1/15) shown that the person organized, supervised, financed, or managed one or more other persons engaged in this 1. The Law Before 9/1/15 activity. No specific offense existed involving cargo theft. C. SB 835 – New Misdemeanor, False Military 2. The Problem with the Current Law Record According to the bill author’s statement of intent, Signed 5/12/15 (Effective 9/1/15) by some estimates, Texas leads the nation in the incidence of cargo theft, with losses valued at $23 1. The Law Before 9/1/15 – Offense is a Class C million between 2012 and 2014. Furthermore, existing Misdemeanor penal code provisions addressing theft and organized Texas Penal Code § 32.54 provides that a person crime present significant impediments to the commits an offense if the person uses or claims to hold prosecution of this activity. a military record that the person knows is fraudulent, fictitious, or has otherwise not been granted or 3. The Law On and After 9/1/15 assigned to the person, and does so in an advertisement SB 1828 amends Texas Penal Code Chapter 31 by or other promotion of a business or with intent to adding § 31.18, which makes it an offense if a person receive certain services. (a) knowingly or intentionally conducts, promotes, or facilitates an activity in which the person receives, 2. The Problem With the Current Law possesses, conceals, stores, barters, sells, abandons, or According to the bill author’s statement of intent, disposes of stolen cargo, or cargo explicitly the analogous federal law, the Stolen Valor Act, makes represented to the person as being stolen cargo, or (b) similar actions punishable by up to one year in prison, is employed as a driver lawfully contracted to transport a fine, or both. Interested observers suggested that a specific cargo by vehicle from a known point of State law should be updated to reflect the harsher origin to a known point of destination and with the federal penalties. intent to conduct, promote, or facilitate cargo theft, knowingly or intentionally fails to deliver the entire 3. The Law On and After 9/1/15 – Offense is a Class cargo to the known point of destination as contracted, B Misdemeanor or causes the seal to be broken on the vehicle or on an Governor Abbott’s Press Release stated, “Too intermodal container containing any part of the cargo. many brave American men and women have put their The new penal code section will define “cargo” as lives on the line for our country to have their records goods (defined by Section 7.102, Texas Business and tarnished by someone making a false claim.” Commerce Code) that constitute, wholly or partly, a commercial shipment of freight moving in commerce. D. SB 461 – New Misdemeanor, Abusable A shipment is considered to be moving in commerce if Synthetic Substances the shipment is located at any point between the point Signed 5/28/15 (Effective 9/1/15) of origin and the final point of destination regardless of any temporary stop that is made for the purpose of 1. The Law Before 9/1/15 transshipment or otherwise. The Texas Penal Code and the Texas Health and The new penal code section will create a Safety Code make reference to certain synthetic punishment scheme based on the value of the cargo. If substances, including synthetic marijuana. In addition, the total value of the cargo involved in the activity is: Texas Penal Code § 32.42 makes it a crime for a business to knowingly sell an adulterated or mislabeled a. less than $10,000, then the offense is a state commodity. There is currently no broad definition for jail felony; what constitutes an “abusable synthetic substance,” nor b. $10,000 or more but less than $100,000, it is is there a provision that makes it an offense to sell a a third degree felony; mislabeled abusable synthetic substance.

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2. The Problem with the Current Law proceeds. Some interested parties contend that Texas According to the bill author’s statement of intent, needs to authorize these “50/50” charitable raffles. synthetic drugs have become a widespread problem across the state in recent years. The ease with which 3. The Law On and After 1/1/16 manufacturers of these drugs alter the chemical HB 975 amends the Texas Occupations Code by makeup of their products to skirt the law puts a strain adding Chapter 2004, which will permit a professional on local law enforcement agencies, first responders, sports team charitable foundation to conduct “50/50” and hospitals. charitable raffles, contingent on a corresponding constitutional amendment. It also creates certain Class 3. The Law On and After 9/1/15 C misdemeanors associated with conducting and SB 461 amends the Texas Health and Safety Code participating in those raffles. to create Chapter 484, which defines “abusable For those conducting raffles, it is a Class C synthetic substance” as (a) a substance that is not misdemeanor to take anything but cash for raffle otherwise regulated under [Title 6 of the Health and tickets, or to sell tickets to anyone known to be Safety Code] or under federal law; (b) is intended to younger than 18 years of age. mimic a controlled substance or controlled substance For those participating in the raffles, it is a Class analogue; (c) when inhaled, ingested, or otherwise C misdemeanor to use government financial aid money introduced into a person’s body produces an effect on to buy raffle tickets, or to misrepresent one’s age as the central nervous system similar to the effect being 18 years or older in order to purchase a raffle produced by a controlled substance or controlled ticket. substance analogue; creates a condition of intoxication, In addition, Penal Code § 47.02 will provide for a hallucination, or elation similar to a condition defense if the conduct was permitted under the new produced by a controlled substance or controlled Chapter 2004 of the Occupation Code. Section substance analogue; or changes, distorts, or disturbs the 47.02(c) of the Texas Penal Code is amended to read, person’s eyesight, thinking process, balance, or “It is a defense to prosecution under this section that coordination in a manner similar to a controlled the actor reasonably believed the conduct was substance or controlled substance analogue. permitted under Chapter 2004, Occupations Code.” A person commits an offense under Chapter 484 if, in the course of business, the person knowingly F. HB 207 – New Offense, Voyeurism produces, distributes, sells, or offers for sale a Sent to Governor 5/29/15 (Effective 9/1/15) mislabeled abusable synthetic substance. An offense under Chapter 484 is a Class C misdemeanor, except 1. The Law Before 9/1/15 that it is a Class A misdemeanor if the actor has No specific offense of “Voyeurism” existed in the previously been convicted of an offense under Chapter Penal Code. 484 or under Section 32.42 of the Texas Penal Code and the adulterated or mislabeled commodity sold 2. The Problem with the Current Law under Section 32.42 was an abusable synthetic According to the legislative bill analysis, recent substance. studies show that voyeurism is a type of behavior that serves as a common gateway offense that may lead to E. HB 975 – New Misdemeanor, Misconduct other, more violent sexual offenses. Many concerned Related to Charitable Raffles observers contend that the conduct constituting the Signed 5/28/15 (Effective 1/1/16, Contingent on offense of voyeurism is currently classified as an State Constitutional Amendment) inadequately serious offense.

1. The Law Before 1/1/16 3. The Law On and After 9/1/15 The Charitable Raffle Enabling Act authorizes a HB 207 amends Chapter 21 of the Penal Code to qualified nonprofit organization to conduct charitable add Section 21.16, which states, “A person commits an raffles in which prizes other than money are offered or offense if the person, with the intent to arouse or awarded, with all of the proceeds from the sale of raffle gratify the sexual desire of the actor, observes another tickets being allocated for use for the organization’s person without the other person’s consent while the charitable purposes. other person is in a dwelling or structure in which the other person has a reasonable expectation of privacy.” 2. The Problem with the Current Law An offense under this section is a Class C According to the bill author’s statement of intent, misdemeanor, except that it is a Class B misdemeanor a number of states authorize charitable raffles that if the actor has been twice convicted of the same award to a raffle winner selected by random draw a offense previously, or a state-jail felony if the victim cash prize of not more than 50 percent of the gross 3 Newly Minted Criminal Laws Chapter 29 was a child younger than 14 years of age at the time of conspicuous prohibition by the owner of the computer, the offense. computer network, or computer system; or a contractual agreement to which the person has G. HB 511 – Relating to Offenses Committed expressly agreed; and with the intent to obtain or use a Against Persons in Custody file, data, or proprietary information stored in the Signed 5/29/15 (Effective 9/1/15) computer, network, or system to defraud or harm another or alter, damage, or delete property.” 1. The Law Before 9/1/15 HB 896 also creates a defense to prosecution In most circumstances, it is an offense for under (b-1)(2) by adding Subsection (f), which employees of certain correctional facilities to violate provides that it is a defense if the actor’s conduct the civil rights of, or engage in sexual conduct with, consisted solely of action taken pursuant to a contract someone in the custody of a “correctional facility.” that was entered into with the owner of the computer, computer network, or computer system for the 2. The Problem with the Current Law purposes of assessing the security of the computer, According to the legislative bill analysis, network, or system or providing other security-related personnel in facilities that detain individuals on the services. grounds of immigration status are not subject to this penalty, despite performing substantially the same job I. SB 473 – New Defense to Possession of as correctional officers. Prohibited Explosive Weapons, Firearms, and Related Items 3. The Law On and After 9/1/15 Signed 5/22/15 (Effective 9/1/15) HB 511 amends Penal Code § 39.04(e)(1) to add a definition for “correctional facility” to include “any 1. The Law Before 9/1/15 place or facility designated for the detention of a Penal Code § 46.05 makes it an offense to person suspected of violating a provision of the intentionally or knowingly possess, manufacture, Immigration and Nationality Act (8 U.S.C. Section transport, repair, or sell particular prohibited weapons. 1101 et seq.).” 2. The Problem with the Current Law H. HB 896 – Relating to Offense of Breach of According to the legislative bill analysis, Computer Security interested parties have reported that there is confusion Signed 5/28/15 (Effective 9/1/15) regarding whether current state law prohibits an individual from owning certain weapons that are legal 1. The Law Before 9/1/15 under federal law and in several other states. Under Penal Code § 33.02, Breach of Computer Security, it is an offense if, with the intent to defraud or 3. The Law On and After 9/1/15 harm another or alter, damage, or delete property, an To resolve this confusion, SB 473 amends Penal actor “knowingly access[es] a computer, computer Code § 46.05 to add an exception for items “registered network, or computer system without the effective in the National Firearms Registration and Transfer consent of the owner.” Record maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives or classified as a curio or relic 2. The Problem with the Current Law by the United States Department of Justice.” According to the bill author’s statement of intent, legislation passed in 2011 addressed the prosecution of J. HB 1396 – Changing Punishment Ranges for and punishment for the offense of breach of computer Certain Offenses security, but that legislation inadvertently removed Sent to Governor 6/1/15 (Effective 9/1/15) certain language that has made the legislative intent unclear. 1. Law Before 9/1/15 Certain sections of the Penal Code involving 3. The Law On and After 9/1/15 property crimes set punishment ranges based on the HB 896 amends Penal Code Section 33.02. amount of property damaged or stolen. For instance, Subsection (b-1) is amended to add (b-1)(2), which Section 28.03, Criminal Mischief, makes it a Class C makes it an offense to, with the intent to defraud or misdemeanor to cause less than $50 of property harm another or alter, damage, or delete property, damage and a first-degree felony to cause $200,000 or knowingly access, “a computer, computer network, or more in property damage. computer system that is owned by: the government; or a business or other commercial entity engaged in a business activity; in violation of: a clear and 4 Newly Minted Criminal Laws Chapter 29

2. The Law On and After 9/1/15 In addition, House Bill 1396 amends numerous HB 1396 is a large bill that affects portions of the other statutes in the penal code to adjust the Penal Code, the Code of Criminal Procedure, and the punishment ranges based on the amount of loss or Government Code. This section addresses changes to damage. The affected statutes include: the Penal Code. Sections 5 through 28 of HB 1396 amend multiple • Section 31.16, organized retail theft provisions of the Penal Code to adjust the dollar • Section 32.02, fraud amounts that determine punishment ranges. For • example, with respect to Section 28.03, Criminal Section 32.23, trademark counterfeiting • Mischief, the dollar amounts and corresponding Section 32.32, false statement to obtain punishment ranges are amended as follows: property or credit • Section 32.33, hindering secured creditors Offense Level Current New Amounts • Section 32.35, credit card record laundering Amounts of Effective 9/1/15 • Section 32.441, illegal recruitment of athlete Pecuniary Loss • Section 32.45, misapplication of fiduciary Class C misd. Less than $50 Less than $100 property or property of financial institution Class B misd. $50 or more but $100 or more • Section 32.46, execution of document by less than $500 but less than deception $750 • Section 33.03, computer crimes Class A misd. $500 or more $750 or more • Section 34.02, money laundering but less than but less than • Section 35.02, insurance fraud $1,500 $2,500 • Section 35A.02, Medicaid fraud State Jail felony $1,500 or more $2,500 or more • Section 39.02, abuse of official capacity but less than but less than $20,000 $30,000 Third Degree $20,000 or more $30,000 or more K. SB 11 – Defenses Related to Campus Carry but less than but less than Sent to Governor 6/1/15 (Effective 8/1/16) $100,000 $150,000 Second Degree $100,000 or $150,000 or 1. The Law Before 8/1/16 more but less more but less Under current law, Penal Code § 46.03, a person than $200,000 than $300,000 commits an offense if the person intentionally, First Degree $200, 000 or $300,000 or knowingly, or recklessly possesses or goes with a more more firearm, illegal knife, club, or prohibited weapon listed in Section 46.05(a) on the physical grounds of a school Similarly, Section 31.03, Theft, is amended as follows: or educational institution.

Offense Level Current Value New Amounts 2. The Problem with the Current Law of Property Effective 9/1/15 According to the legislative bill analysis, Stolen interested parties note that current law does not allow Class C misd. Less than $50 Less than $100 an otherwise law-abiding concealed handgun license Class B misd. $50 or more but $100 or more but holder who has satisfied the background check process less than $500 less than $750 and successfully completed appropriate education and Class A misd. $500 or more $750 or more but training courses to possess a weapon on the premises but less than less than $2,500 of an institution of higher education. $1,500 State Jail felony $1,500 or more $2,500 or more 3. The Law On and After 9/1/15 but less than but less than SB 11 amends Penal Code Section 46.03 to make $20,000 $30,000 it an exception to prosecution if the person possesses or Third Degree $20,000 or $30,000 or more goes with a concealed handgun that the person is more but less but less than licensed to carry, and no other weapon to which than $100,000 $150,000 Section 46.03 applies, on the premises of an institution of higher education or private or independent Second Degree $100,000 or $150,000 or more institution of higher education, on any grounds or more but less but less than building on which an activity sponsored by the than $200,000 $300,000 institution is being conducted, or in a passenger First Degree $200, 000 or $300,000 or more transportation vehicle of the institution. more 5 Newly Minted Criminal Laws Chapter 29

In addition, Section 46.03 is amended to make it 1. The Law Before 9/1/15 an offense to carry a partially or wholly visible Code of Criminal Procedure Article 64.01(a-1) handgun and intentionally or knowingly display the states, “A convicted person may submit to the handgun in plain view of another person on the convicting court a motion for forensic DNA testing of premises of an institution of higher education, and evidence containing biological material.” (emphasis various other named places. added)

L. SB 825 – Creating Additional Penalties for 2. The Problem with the Current Law Prostitution In State v. Swearingen, the Court of Criminal Sent to Governor 6/1/15 (Effective 9/1/15) Appeals held that Chapter 64, as written, requires a defendant to prove that biological material exists and 1. The Law Before 9/1/15 not that it is merely probable that it exists. This Texas law contains promotion of prostitution determination was based on the language that defines statutes (Section 43.03 and Section 43.04 of the Penal biological material as an item “that contains blood, Code) and compelling prostitution statutes (Section semen, hair, saliva, skin, tissue or cells, fingernail 43.05 of the Penal Code), but the current statutory scrapings, bone, bodily fluids, or identifiable biological framework provides no distinction between the buyer evidence.” 424 S.W.3d 32 (Tex. Crim. App. 2014). and seller. Both the buyer and the prostituted individual are guilty of the same prostitution offense 3. The Law On and After 9/1/15 (Section 43.02 of the Texas Penal Code). SB 487 alters the language of Article 64.01(a-1) to read, “A convicted person may submit to the 2. The Problem with the Current Law convicting court a motion for forensic DNA testing of According to the bill author’s statement of intent, evidence that has a reasonable likelihood of containing conflating the roles of buyers and sellers in prostitution biological material.” makes it difficult to gain a clear picture of the various parties involved in this criminal enterprise. B. SB 888 – Interlocutory Appeal of Certification of Juvenile for Prosecution as an Adult 3. The Law On and After 9/1/15 Signed 5/22/15 (Effective 9/1/15) SB 825 amends Penal Code § 43.02 to create two separate prostitution offenses based on either receipt of 1. The Law Before 9/1/15 a fee to engage in sexual conduct (Subsection (a)), or Article 44.47 of the Texas Code of Criminal payment of a fee to engage in sexual conduct Procedure provides that a defendant may only appeal (Subsection (b)). an order of a juvenile court certifying the defendant to SB 825 makes other non-substantive changes to stand trial as an adult under Section 54.02 of the Texas the Penal Code and other Code Provisions that Family Code in conjunction with the appeal of a reference this section to make them consistent with the conviction or of an order of deferred adjudication for new wording of the statute. the offense for which the defendant was transferred to criminal court. M. HB 910 – Open Carry There is currently no provision for a civil appeal Sent to Governor 6/1/15 (Effective 1/1/16) of an order transferring a case from juvenile court to a HB 910 amends the Penal Code to add Section criminal district court. 30.07, which states, “A license holder commits an offense if the license holder: (1) openly carries a 2. The Problem with the Current Law handgun under the authority of Subchapter H, Chapter The bill author’s statement of intent indicates that, 411, Government Code, on property of another without by requiring juveniles to await conviction before they effective consent; and (2) received notice that entry on are able to appeal their certification to stand trial as an the property by a license holder openly carrying a adult, this process can leave defendants waiting for handgun was forbidden.” The offense is either a Class years for a determination regarding whether the C or Class A misdemeanor, depending on whether certification was proper. notice was given verbally or in writing. Moon v. State is one such case, cited by the bill analysis, in which the Court of Criminal Appeals II. THE CODE OF CRIMINAL PROCEDURE reversed a murder conviction because the juvenile A. SB 487 – Alters Standard for Post-Conviction court did not adequately “show its work” in the transfer DNA Testing order, and the evidence was insufficient to support the Signed 5/22/15 (Effective 9/1/15) juvenile court’s factual findings. The case was remanded to the family court. 451 S.W.3d 28 (Tex. Crim. App. 2014). 6 Newly Minted Criminal Laws Chapter 29

Allowing an immediate appeal of juvenile engaging in forced labor or services, including sexual certification would save the state valuable resources by conduct . . .” preventing adult court trials in cases of improper Code of Criminal Procedure Article 56.41 is certification and would protect juveniles from having amended to add Subsection (b-1), which states, to face adult criminal proceedings if they are “Subsection (b)(3) [which prevents victims who improperly certified. “knowingly and willingly” participated in criminal activity from being compensated] does not apply to a 3. The Law On and After 9/1/15 claimant or victim who seeks compensation for SB 888 amends Article 4.18(g) of the Code of criminally injurious conduct that is (1) in violation of Criminal Procedure to authorize a juvenile to appeal a Section 20A.02(a)(7), Penal Code [trafficking in defect or error in a discretionary transfer proceeding children]; or (2) trafficking of persons . . . if the only under Chapter 56 of the Family Code, making it a criminally injurious conduct the claimant or victim civil appeal, rather than a criminal appeal under Article participated in was the result of force, fraud or 44.47 of the Code of Criminal Procedure. coercion.” SB 888 also amends Section 56.01 of the Family Sections 22.110(a), (b), and (d) of the Code to specifically allow a civil appeal of an order Government Code are amended to add “trafficking of under Section 54.02, a discretionary transfer of a persons” to the list of problems towards which the juvenile to a criminal court. It also provides that an Court of Criminal Appeals shall dedicate judicial appeal from an order entered under Section 54.02 does training resources. not stay the criminal proceedings pending the The Penal Code is amended to add Section disposition of that appeal. 20A.04, entitled “Accomplice Witness; Testimony and SB 888 completely repeals Article 44.47 of the Immunity” providing: (a) “A party to an offense under Code of Criminal Procedure, the section for appeals this chapter [Trafficking of Persons] may be required from transfers from juvenile court. to provide evidence or testify about the offense. (b) “A party to an offense under this chapter may C. HB 10 – Concerning Compelling Prostitution not be prosecuted for any offense about which the and Human Trafficking party is required to provide evidence or testify, and the Sent to Governor 5/27/15 (Effective 9/1/15) evidence and testimony may not be used against the party in any adjudicatory proceeding except a 1. The Law Before 9/1/15 prosecution for aggravated perjury. For purposes of The 81st Legislature (2009) created a Human this subsection, ‘adjudicatory proceeding’ means a Trafficking Prevention Task Force to create a statewide proceeding before a court or any other agency of partnership between law enforcement agencies, social government in which the legal rights, powers, duties, service providers, non-governmental organizations, or privileges of specified parties are determined. legal representatives, and state agencies. The task (c) “A conviction under this chapter may be had force works to develop policies and procedures to fight on the uncorroborated testimony of a party to the human trafficking and has recommended legislation to offense.” that end. D. SB 662 – Providing Counsel for Certain 2. The Problem with the Current Law Applicants for Writs of Habeas Corpus According to the bill author’s analysis, HB 10 Sent to Governor 5/26/15 (Effective 9/1/15) seeks to prevent and to ultimately eliminate human trafficking by enacting the recommendations made by 1. The Law Before 9/1/15 the task force in the 2014 Human Trafficking No specific provision requiring appointment of Prevention Task Force Report. counsel in non-death cases to applicants for writs of habeas corpus. 3. The Law On and After 9/1/15 2. The Problem with the Current Law HB 10 makes a number of changes to existing According to the legislative bill analysis, there are law, containing 20 sections. This paper will highlight a some situations in which it might be important for a few of the amendments that are most relevant to defendant to have appointed counsel to pursue a post- criminal law. HB 10 amends Article 12.01 of the Code conviction writ of habeas corpus. Specifically, a of Criminal Procedure to add compelling prostitution defendant should be notified and appointed counsel under Section 43.05(a)(2) of the Penal Code to the list when the State agrees that he is actually innocent, is of offenses with no statute of limitations. guilty only of a lesser offense, or was convicted under Article 56.32(a)(14) of the Code of Criminal a law that has now been held unconstitutional. Procedure is amended as follows: “‘Trafficking of persons’ means any offense that results in a person 7 Newly Minted Criminal Laws Chapter 29

3. The Law On and After 9/1/15 F. HB 48 – Creating the Timothy Cole Texas Code of Criminal Procedure is amended to Exoneration Review Commission add Article 11.074, which states in part, “If at any time Signed 6/1/15 (Effective Immediately) the state represents to the convicting court that an eligible indigent defendant who was sentenced or had a 1. The Law Before 6/1/15 sentence suspended is not guilty, is guilty of only a No commission on wrongful convictions exists. lesser offense, or was convicted or sentenced under a law that has been found unconstitutional by the court 2. The Problem with the Current Law of criminal appeals or the United States Supreme According to the bill author’s statement of intent, Court, the court shall appoint an attorney to represent Texas has had more total exonerations (200) and DNA the indigent defendant for purposes of filing an exonerations (57), than any other state. The conviction application for a writ of habeas corpus, if an of the innocent ruins lives and damages public trust in application has not been filed, or to otherwise represent our justice system, harming public safety as guilty an indigent defendant in a proceeding based on the culprits remain free. application in the writ.” Timothy Cole is one such victim of wrongful This new article applies to non-death cases, conviction. He was convicted of rape, but later including community supervision punishment cases, exonerated by DNA evidence. He died in prison, and applies regardless of whether the defendant is in however, before ever learning that he had been custody prior to the effective date of the act. exonerated.

E. HB 1264 – Permits Destruction of DWI/DUI 3. The Law On and After 6/1/15 Evidence HB 48 amends Chapter 43 of the Code of Signed 6/1/15 (Effective 9/1/15) Criminal Procedure by adding Article 43.27, creating the Timothy Cole Exoneration Review Commission. 1. The Law Before 9/1/15 The Commission will consist of eleven members: Code of Criminal Procedure Article 38.50 a member appointed by the governor; the chairs of the provides rules for retention and storage of biological Senate Committees on Criminal Justice and State material but does not differentiate toxicological Affairs; the chairs of the House Committees on evidence from biological evidence. Unlike biological Criminal Jurisprudence and on Judiciary and Civil evidence, toxicological evidence is not used for Jurisprudence; a member appointed by the chair of the identification purposes and no longer has any Texas Judicial Council; the presiding officer, or other evidentiary value following disposition of a case. member or employee of the Texas Commission on There is no code provision for the disposal of the blood Law Enforcement; the presiding officer, or other and urine evidence in alcohol-related offenses. member or employee, of the Texas Indigent Defense Commission; presiding officer, or other member or 2. The Problem with the Current Law employee, of the Texas Forensic Science Commission; According to the bill author’s statement of intent, the president, or designee, of the Texas Criminal some police departments have large backlogs of Defense Lawyers Association; and the chairman of the biological evidence from DWI/DUI cases. One board, or a designee, of the Texas District and County example given is Houston, where the Houston Police Attorneys Association. Department property room is at 97 percent storage The Commission may review and examine all capacity because it has stored blood and urine from cases in Texas in which an innocent defendant was these offenses since 1988. convicted and then, on or after January 1, 2010, was exonerated. HB 48 identifies a number of goals for the 3. The Law On and After 9/1/15 Commission in reviewing cases of wrongful Code of Criminal Procedure Article 38.50 amends convictions, including to (a) identify the causes of current law by creating a new section that provides wrongful convictions and suggest ways to prevent explicit direction regarding retention and storage of future wrongful convictions and improve the reliability blood and urine evidence collected for use in a and fairness of the criminal justice system; (b) DWI/DUI investigation. This new law permits the ascertain errors and defects in the laws, evidence, and destruction of the evidence as long as the evidence has procedures applied or omitted in the defendant’s case; been retained and preserved for two years or the period and (c) consider suggestions to correct the identified of limitations, or until the expiration of the defendant’s errors and defects through legislation or procedural sentence, or the defendant is acquitted or the case changes. dismissed with prejudice.

8 Newly Minted Criminal Laws Chapter 29

G. HB 326 – Search Warrants on Information accused or suspected of committing an offense that the Provided by Electronic Means grand jury is investigating; (d) that the juror is related Sent to Governor 5/29/15 (Effective 9/1/15) within the third degree by consanguinity or affinity . . . to a person accused or suspected of committing an 1. The Law Before 9/1/15 offense that the grand jury is investigating or to a No specific provision in the Code of Criminal person who is a victim of an offense that the grand jury Procedure authorizes a magistrate to consider is investigating; and (e) that the juror has a bias or information communicated by telephone or other prejudice against any phase of the law upon which the reliable electronic means in determining whether to state is entitled to rely for an indictment. issue a search warrant. A challenge to a grand juror may be made ex parte and shall be reviewed and ruled on through an in 2. The Problem with the Current Law camera proceeding. The court shall seal any record of According to the legislative bill analysis, current the challenge. practices involving in-person or facsimile transmission HB 2150 also makes other changes to the law by of information supporting a search warrant can be removing references to the jury commissioner system, logistically difficult in larger counties and jurisdictions. and makes some other small changes to the manner in 3. The Law On and After 9/1/15 which potential grand jurors are summoned and HB 326 amends Article 18.01 of the Code of selected, including increasing the number of alternate Criminal Procedure to add Subsection (b-1), which grand jurors from two to four. authorizes a magistrate to “consider information communicated by telephone or other reliable electronic I. HB 3633 – Reimbursement for Costs of Legal means in determining whether to issue a search Services warrant. The magistrate may examine an applicant for Signed 5/23/15 (Effective 9/1/15) a search warrant and any person on whose testimony the application is based. The applicant or other person 1. The Law Before 9/1/15 must be placed under oath before the examination.” Existing law does not require that a judge HB 326 contains other provisions outlining the determine whether a defendant is financially able to logistics of authorizing warrants obtained in this reimburse a county for the costs of the legal services manner. provided to the defendant before ordering reimbursement as a term of community supervision, H. HB 2150 – Formation of Grand Juries nor does it specifically limit the amount of Sent to Governor 6/1/15 (Effective 9/1/15) reimbursement ordered to the actual amount spent on legal services. 1. The Law Before 9/1/15 Judges in Texas are permitted to appoint “jury 2. The Law On and After 9/1/15 commissioners” who then select members to serve on a HB 3633 amends the Code of Criminal Procedure grand jury for a period of time. to require a judge to determine whether a defendant has adequate financial resources before ordering 2. The Problem with the Current Law reimbursement of legal expenses as a term of According to the legislative bill analysis, the community supervision, or before revoking community grand jury system has recently come under scrutiny supervision on the sole basis of failure to reimburse the because concerns have been raised about how effective county for the cost of legal services. the system is in removing bias from a grand jury pool. J. HB 1546 – Diligent Participation Credits for 3. The Law On and After 9/1/15 State Jail Felons Article 19.01 of the Code of Criminal Procedure Signed 5/29/14 (Effective 9/1/15) is amended to delete the provisions that had permitted the appointment of jury commissioners, and instead 1. The Law Before 9/1/15 authorizes grand juries to be summoned and empaneled The 82nd Legislature (2011) created an only in the same manner as for petit juries. opportunity for individuals in state jails to earn time HB 2150 also amends Article 19.31 of the Code toward early release by allowing them to receive of Criminal Procedure to increase the grounds upon diligent participation credit for every day they which a challenge to a grand juror may be made. participate in educational, vocational, treatment, or These include, among others, (a) that the juror is work programs. Currently, the Texas Department of insane; (b) that the juror is a witness in or a target of an Criminal Justice (TDCJ) records participation, sends a investigation of a grand jury; (c) that the juror has a report to the judge of the sentencing court, and waits bias or prejudice in favor of or against the person for the judge to issue an order for early release. 9 Newly Minted Criminal Laws Chapter 29

2. The Problem with the Current Law offender’s use of a computer or the Internet, the According to the bill author’s statement of intent, potential for victimization of the innocent will persist. the system for approving the credit limits the effectiveness of the program. The responsibilities split 3. The Law On and After 9/1/15 between TDCJ and judges are complex and inefficient, HB 372 amends the Code of Criminal Procedure and judges are not currently required to respond to and the Government Code to require that sex offenders applications for credit. While 73 percent of credit assigned a numeric risk level of two or three be subject applications that receive a response from the judge are to restrictions on internet access. granted, 56 percent of the applications never receive a HB 372 also amends both codes to require a response. parolee or probationer to submit to inspection or monitoring of each electronic device used to access the 3. The Law On and After 9/1/15 internet. HB 1546 amends Chapter 42 of the Code of Criminal Procedure by adding Article 42.0199, which L. HB 510 – Disclosure of Information about reads, “If a person is convicted of a state jail felony, Expert Witnesses the judge shall make a finding and enter the finding in Sent to Governor 5/25/15 (Effective 9/1/15) the judgment of the case regarding whether the person is presumptively entitled to diligent participation credit 1. The Law Before 9/1/15 in accordance with Section 15(h), Article 42.12. [Code Current law requires filing of a motion and of Criminal Procedure].” obtaining an order to compel the sharing of HB 1546 also amends Article 42.12 of the Code information about prospective expert witnesses. of Criminal Procedure to outline procedures for those state-jail felons who are presumptively entitled to 2. The Problem with the Current Law diligent participation credits, streamlining the process According to the legislative bill analysis, for those inmates. interested parties contend that recent legislative efforts to make the discovery process in criminal cases less K. HB 372 – Electronic Monitoring of Registered formal and simpler did not succeed in making efficient Sex Offenders changes to the procedures related to the discovery of Sent to Governor 5/28/15 (Effective 9/1/15) expert witnesses.

1. The Law Before 9/1/15 3. The Law On and After 9/1/15 Article 42.12, Section 13G, of the Code of HB 510 amends Article 39.14 of the Code of Criminal Procedure outlines procedures for the Criminal Procedure to state, “On a party’s request prohibition on internet access for certain sex offenders made not later than the 30th day before the date that given community supervision. One of the jury selection in the trial is scheduled to begin or, in a requirements for an individual to be subject to the trial without a jury, the presentation of evidence is prohibitions under Section 13G is that he be assigned a scheduled to begin, the party receiving the request shall numeric risk level of three. disclose to the requesting party the name and address Section 508.1861 of the Government Code of each person the disclosing party may use at trial to outlines procedures for the prohibition on internet present evidence under Rules 702, 703, and 705, Texas access for certain individuals who are required to Rules of Evidence.” register as sex offenders and are released on parole. HB 510 also amends the Code of Criminal Similar to Article 42.12 Section 13G, to be subject to Procedure to require that such a disclosure be made in mandatory prohibitions on internet access, a parolee writing in hard copy form or by electronic means. must be assigned a numeric risk level of three. M. SB 1071 – Notification of Scheduled Execution 2. The Problem with the Current Law Date According to the bill author’s statement of intent, Sent to Governor 6/1/15 (Effective 9/1/15) studies looking into the use of the Internet in the commission of sexual crimes have shown that the 1. The Law Before 9/1/15 computer era has resulted in more opportunities for the Current law does not require that courts notify a victimization of the innocent, particularly children, and defendant’s counsel once an execution date has been presents complex challenges for law enforcement, set. victim services, parents, legislators, and the community. Interested parties assert that these 2. The Problem with the Current Law problems continue to grow, and, because probation and According to the bill author’s statement of intent, parole agencies cannot effectively restrict a sex because of the current law, executions have been 10 Newly Minted Criminal Laws Chapter 29 sought and scheduled without notice to defense there is no specific provision that governs the search of counsel. cell phones or other electronic devices.

3. The Law On and After 9/1/15 2. The Law On and After 9/1/15 SB 1071 amends Texas Code of Criminal HB 1396 is a large bill that affects portions of the Procedure Article 43.141 to add a requirement that Penal Code, the Code of Criminal Procedure, and the when a convicting court enters an execution date, a Government Code. This section addresses changes to copy of the order must be sent by first-class mail, e- the Code of Criminal Procedure. mail, or fax, not later than the second business day HB 1396 amends Chapter 18 of the Code of after the order, to the attorney who represented the Criminal Procedure by adding Article 18.0215. This condemned person in the most recently concluded article prohibits a police officer from searching a cell stage of a state or federal post-conviction proceeding phone or other electronic device subject to a lawful and the office of capital writs. The exclusive remedy arrest without a warrant, and outlines the procedures for a failure to provide the above notification is the for acquiring a warrant to search a cell phone. resetting of the execution date. In addition, Article 18.0215 enumerates specific exceptions to the warrant requirement for cell phone N. SB 112 – Emergency Protective Orders searches, including consent to search, that the phone or Signed 5/23/15 (Effective Immediately) device has been reported stolen by its owner, that the officer reasonably believes that the phone is in 1. The Law Before 5/23/15 possession of a fugitive from justice for whom an Current law allows a judge to, under certain arrest warrant has been issued for committing a felony conditions, issue an emergency protective order under offense, or there exists an immediate, life-threatening which an arrested person is prohibited from situation. committing certain offenses or from communicating HB 1396 also amends Article 18.02(a) to include with certain persons in a threatening or harassing cellular telephones or other wireless devices to the list manner. However, a judge is not currently authorized of items for which a search warrant may be issued. to order an arrested person to completely stop communicating directly with the person protected P. HB 1396 – Preference for Trials Involving under the order or with a member of the protected Child Victims person’s family or household. Signed 6/20/15 (Effective 9/1/15)

2. The Problem with the Current Law 1. The Law Before 9/1/15 According to the legislative bill analysis, Code of Criminal Procedure Article 32A.01, Trial interested parties believe that there is a need for a cool- Priorities, provides that the trial of criminal actions down period following the offender’s arrest and the shall be given preference over civil trials and that the issuance of the emergency protective order during trial of a detained defendant shall be given preference which the affected individuals are allowed to over trials of other actions. communicate only through lawyers.

2. The Law On and After 9/1/15 3. The Law On and After 5/23/15 Adds new Subsection (b), which provides that the SB 11 amends Code of Criminal Procedure Article 17.292(c) by permitting a magistrate, in an trial of a criminal action in which the alleged victim is order for emergency protection, to prohibit an arrested younger than 14 years of age shall be given preference party from communicating “if the magistrate finds over other matters before the court, whether civil or good cause, in any manner with a person protected criminal. under the order or a member of the family or household of a person protected under the order, except Q. HB 189 – Statute of Limitations for Sexual through the party’s attorney or a person appointed by Assault the court.” Sent to Governor 6/1/15 (Effective 9/1/15) HB 189 amends Code of Criminal Procedure O. HB 1396 – Searches of Cell Phones Article 12.01 to alter the standard for determining Sent to Governor 6/1/15 (Effective 9/1/15) whether the statute of limitations for a sexual assault offense has run. The statute provides no limitation for 1. Law Before 9/1/15 a sexual assault offense if “(i) during the investigation Chapter 18 of the Code of Criminal Procedure of the offense biological matter is collected and governs the issuance of search warrants. Currently subjected to forensic DNA testing and the testing results show that the matter does not match the victim 11 Newly Minted Criminal Laws Chapter 29 or any other person whose identity is readily U. HB 3791 – Recording Police Interactions ascertained; or (ii) probable cause exists to believe that Sent to Governor 5/30/15 (Signed 9/1/15) the defendant has committed the same or a similar HB 3791 amends Chapter 2 of the Code of sexual offense against five or more victims[.]” Criminal Procedure by adding Article 2.139, which states, “A person stopped or arrested on suspicion of an R. HB 211 – Competency to Stand Trial offense under Section 49.04, 49.045, 49.07, or 49.08, Sent to Governor 6/1/15 (Effective Immediately) Penal Code [Intoxication Offenses], is entitled to HB 211 addresses the time frame in which receive from a law enforcement agency employing the criminal proceedings may be resumed after a defendant peace officer who made the stop or arrest a copy of any who was determined to be incompetent to stand trial video made by or at the discretion of the officer that has subsequently been found competent to stand trial. contains footage of: (1) the stop; (2) the arrest; (3) the HB 211 amends Code of Criminal Procedure conduct of the person stopped during any interaction Article 46B.084 to establish concrete deadlines for with the officer, including during the administration of resuming a criminal trial once a defendant who had a field sobriety test; or (4) a procedure in which a previously been determined incompetent to stand trial specimen of the person’s breath or blood is taken.” has been determined competent again. It also adjusts the deadline by which a court must make a III. THE GOVERNMENT CODE determination of competency. A. SB 1697 – Identity of People Involved in HB 211 also creates different standards for Executions counties with a population of less than one million or Signed 5/28/15 (Effective 9/1/15) more than four million, requiring that judges in those counties make competency determinations and resume 1. The Law Before 9/1/15 trials as soon as practicable, rather than on a concrete Section 552.021 of the Government Code gives deadline. the public right of access to public information.

S. HB 643 – Discharge of Bail 2. The Problem with the Current Law Signed 5/28/15 (Effective 9/1/15) There are concerns that execution drugs are Article 32.01 of the Code of Criminal Procedure becoming unavailable because of campaigns against governs dismissal of a prosecution and discharge of the companies that provide the drugs. bail in a case in which the information or indictment has not been brought within a certain period of time. 3. The Law On and After 9/1/15 HB 643 amends Article 32.01 to authorize a surety to SB 130 adds Section 552.1081 to the Government file a motion under Article 32.01(a) for the purpose of Code so that information is exempted from public right discharging a defendant’s bail. of access if it contains identifying information under Article 43.14 Code of Criminal Procedure [execution T. HB 3724 – Considering Scientific Evidence in a of convict by intravenous injection] including that of Writ Application any person who participates in an execution procedure, Sent to Governor 5/25/15 (Effective 9/1/15) a person who supplies or administers a substance HB 3724 clarifies the legislative intent in enacting during the execution, or any person or entity that Article 11.073 to include not only discredited science manufactures, compounds, prescribes, dispenses, or but also a witness’s testimony that was based on provides a substance or supplies used in an execution. discredited science. HB 3724 amends Code of Criminal Procedure B. HB 1481 – New Offense, Operation of Article 11.073(d) to read as follows: “In making a Unmanned Aircraft Over Critical finding as to whether relevant scientific evidence was Infrastructure Facilities not ascertainable through the exercise of reasonable Sent to Governor 5/30/15 (Effective 9/1/15) diligence on or before a specific date, the court shall consider whether the field of scientific knowledge, a 1. The Law Before 9/1/15 testifying expert’s scientific knowledge, or a scientific No specific offense exists related to the operation method on which the relevant scientific evidence is of an unmanned aircraft over critical infrastructure based has changed” since the date of trial for an initial facilities. application or since the date of a prior post-conviction application for a subsequent application. 2. The Problem with the Current Law According to the legislative bill analysis, interested parties contend that the increasing use of unmanned aircraft poses a significant safety and security risk for critical state infrastructure, such as 12 Newly Minted Criminal Laws Chapter 29 power plants, dams, refineries, and military facilities, D. SB 578 – Providing Inmates with Information and that establishing state guidelines, enforceable by Regarding Reentry and Reintegration law, will reduce the risk of accidents and prevent Signed 5/23/15 (Effective 9/1/15) intentional harm. 1. The Law Before 9/1/15 3. The Law On and After 9/1/15 According to the bill author’s statement of intent, HB 1481 amends the Government Code to create approximately 29,000 individuals discharged from the Class B misdemeanor offense of operation of an prison and state jail in 2014 do not qualify for TDCJ’s unmanned aircraft over a critical infrastructure facility Reentry and Integration Division programs. for a person who intentionally or knowingly operates an unmanned aircraft over a critical infrastructure 2. The Problem with the Current Law facility and the unmanned aircraft is not higher than According to the Statement of Intent, many of the 400 feet above ground level; allows an unmanned individuals released from prison are in desperate need aircraft to make contact with a critical infrastructure of housing assistance, employment opportunities, and facility, including any person or object on the premises contact information for organizations that will provide of or within the facility; or allows an unmanned aircraft medical and mental health care. Research suggests that to come within a distance of a critical infrastructure the most critical period for someone leaving prison is facility that is close enough to interfere with the the period immediately following release. operations of or cause a disturbance to the facility. 3. The Law On and After 9/1/15 C. SB 1116 – Electronic Notification by Courts SB 578 amends the Government Code to require and Judges the Department of Criminal Justice to identify and Signed 5/29/15 (Effective 9/1/15) coordinate with organizations that provide reentry and reintegration resource guides to prepare a resource 1. The Law Before 9/1/15 guide that is to be made available to all inmates. SB According to the bill author’s statement of intent, 578 also sets out several minimum requirements of several existing statutes still mandate a paper-based such a guide. approach to providing notices and information to court users, inhibiting courts and clerks from utilizing more E. HB 1396 – Construction of Statutes efficient technology resources. Sent to Governor 6/1/15 (Effective 9/1/15)

2. The Problem with the Current Law 1. The Law Before 9/1/15 According to the legislative bill analysis, No current law requires a criminal law to be interested parties report that the Texas Judicial Council interpreted in favor of a defendant. has requested increased flexibility for sending notices and documents. 2. The Problem with the Current Law HB 1396 is a large bill, which affects portions of 3. The Law On and After 9/1/15 the Penal Code, the Code of Criminal Procedure, and SB 1116 adds Chapter 80 to Subtitle F, Title 2, of the Government Code. This section addresses changes the Government Code, outlining authorized methods of to the Government Code. delivery of notice or documents. Section 80.002 states, According to the legislative bill analysis, “A court, justice, judge, magistrate, or clerk may send interested parties believe that a generally accepted any notice or document using mail or electronic mail. canon of statutory construction that requires an This section applies to all civil and criminal statutes ambiguous criminal law to be interpreted in favor of a requiring delivery of a notice or document.” defendant subjected to the law should be codified, In addition, Section 80.003 states, “If electronic especially as it relates to criminal laws outside of the mail is used to send a notice or document and the Penal Code. person who will receive the notice or document is registered with the electronic filing system established 3. The Law On and After 9/1/15 under Section 72.031, as added by Chapter 1290 (H.B. HB 1396 amends the Government Code by adding 2302), Acts of the 83rd Legislature, Regular Session, Section 311.035, which states in part that “a statute or 2013, the court, justice, judge, magistrate, or clerk rule that creates or defines a criminal offense or sending the notice or document must use the electronic penalty shall be construed in favor of the actor if any mail address on file with the electronic filing system, if part of the statute or rule is ambiguous on its face or as the court uses the electronic filing system.” applied to the case, including an element of [the] offense; or the penalty to be imposed.”

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The above rule of construction does not apply to a 2. The Problem with the Current Law criminal offense or penalty under the Penal Code or The 2009 National Academy of Sciences Report under the Texas Controlled Substances Act. The entitled “Strengthening Forensic Science in the United ambiguity of a part of a statute or rule to which the States: A Path Forward,” noted that the adversarial new section applies is a matter of law to be resolved by process relating to scientific evidence is not well suited a judge. to the task of finding scientific truth. According to the bill author’s statement of intent, most criminal defense F. HB 1690 – The Public Integrity Unit lawyers know very little about science and therefore do Sent to Governor 6/1/15 (Effective 9/1/15) not necessarily know how to spot forensic science errors and challenge them effectively through the writ 1. The Law Before 9/1/15 process. Currently, certain criminal investigations of public officials are conducted by the public integrity unit of 3. The Law On and After 9/1/15 the Travis County District Attorney’s Office. SB 1743 amends Government Code Section 78.054 to expand the purview of the office of capital 2. The Problem with the Current Law writs to include representing defendants in actions According to the bill author’s statement of intent, conducted under Article 11.073 of the Code of interested parties assert that transferring the Criminal Procedure. It also makes numerous changes responsibility for investigations into allegations of to the Code of Criminal Procedure and Government criminal conduct against a public official to a law Code to change to the name of the relevant office to, enforcement agency with statewide jurisdiction and “Office of capital and forensic writs.” statewide personnel would mitigate the possibility of political intervention in this criminal justice process. H. SB 1902 – Orders of Non-Disclosure Sent to Governor 5/27/15 (Effective 9/1/15) 3. The Law On and After 9/1/15 HB 1690 amends to the Government Code to 1. The Law Before 9/1/15 direct the Texas Rangers to establish and support a Under current law, only certain individuals who public integrity unit. This unit’s responsibility will be have had their felony or misdemeanor dismissed after to investigate complaints regarding an offense against completion of a term of deferred adjudication are public administration. eligible for an order of non-disclosure. If there is reasonable suspicion that an offense against public administration has occurred, the matter 2. The Problem with the Current Law shall be referred to the prosecuting attorney of the According to the legislative bill analysis, county in which venue is proper under Section interested parties have expressed concern that this 411.0256 of the Government Code, or Chapter 13 of limitation is preventing individuals who have been the Code of Criminal Procedure, as applicable. convicted of certain low-level, nonviolent crimes from receiving an order of non-disclosure. G. SB 1743 – Office of Forensic Writs Sent to Governor 5/30/15 (Effective 9/1/15) 3. The Law After 9/1/15 S.B. 1902 amends the Government Code to 1. The Law Before 9/1/15 establish an alternative framework for granting an Government Code Section 78.052 establishes the order of non-disclosure of criminal history to a person Office of Capital Writs, designed to represent a who receives a discharge and dismissal after being defendant during a proceeding involving Article placed on deferred adjudication community 11.071 of the Code of Criminal Procedure (Capital supervision for a misdemeanor offense other than a Writs) or any other post-conviction matter in a death kidnapping, unlawful restraint, or smuggling of penalty case other than a direct appeal. persons offense, a sexual offense, an assaultive The 83rd Legislature (2013) added Article 11.073 offense, an offense against the family, a disorderly to the Code of Criminal Procedure, allowing a court to conduct or related offense, a public indecency offense, grant a convicted person a new trial if the science that an organized crime offense, a weapons offense, or a convicted the person is no longer valid. According to misdemeanor with respect to which an affirmative the bill author’s statement of intent, Article 11.073 is finding was filed in the papers of the case that it is not widely regarded as the national model for forensic in the best interest of justice that the person receive science writ reform. such an order. Additionally, the order of non-disclosure order is not available to a person who has ever been previously convicted of or placed on deferred adjudication community supervision for another 14 Newly Minted Criminal Laws Chapter 29 offense other than a fine-only Transportation Code that right to a person whose criminal history record offense. information has been sealed under such an order. S.B. 1902 expands eligibility for an order of non- S.B. 1902 authorizes a criminal justice agency to disclosure of criminal history record information to disclose criminal history record information that is the include the following persons: subject of an order of non-disclosure only to other criminal justice agencies for criminal justice or a. a person placed on community supervision regulatory licensing purposes, to certain noncriminal following a conviction of a misdemeanor, justice agencies or entities, or to the person who is the other than certain alcohol-related or subject of the order. The bill includes among such intoxication-related offenses or the offense of noncriminal justice entities a bank, savings bank, violating a court order enjoining organized savings and loan association, credit union, or mortgage criminal activity, whose community banker, a subsidiary or affiliate of those entities, or supervision has not been revoked and who another financial institution regulated by certain state completes the period of community or federal regulatory agencies, but only regarding an supervision; employee, contractor, subcontractor, intern, or b. a person placed on any type of community volunteer of or an applicant for employment by that supervision, not only deferred adjudication entity. The bill authorizes criminal history record community supervision, including a person information that is related to a conviction and is the required to serve a term of confinement as a subject of an order of non-disclosure of criminal condition of community supervision or a history record information to be admitted into evidence person who is placed on community during the trial of any subsequent offense if the supervision after having served part of a term information is admissible under the Texas Rules of of confinement imposed for the offense, Evidence or another law or to be disclosed to a whose community supervision has not been prosecuting attorney for a criminal justice purpose. revoked and who completes the period of community supervision; and I. HB 3628 – Unmanned Aircraft at the Capitol c. a person who has not been placed on Complex community supervision and who is convicted Signed 5/28/15 (Effective 9/1/15) of a misdemeanor, other than certain alcohol- HB 3628 amends the Government Code to direct related or intoxication-related offenses or the the Director of the Department of Public Safety to offense of violating a court order enjoining adopt rules governing the use of unmanned aircraft at organized criminal activity, who is sentenced the Capitol Complex, either to prohibit their use to and serves a period of confinement, and entirely, or to authorize their limited use. who is released. HB 3628 also amends Section 411.065 to make it a Class B Misdemeanor to violate a new rule regulating S.B. 1902 prohibits the granting of an order of non- the use of unmanned aircraft at the capitol complex. disclosure of criminal history record information to a person if the court makes an affirmative finding that IV. MISCELLANEOUS PROVISIONS the offense for which the order is requested involved A. SB 534 – Changing Certain Language in the family violence. The bill includes trafficking of Oath persons and continuous trafficking of persons among Signed 5/15/15 (Effective Immediately) the offenses for which a conviction or placement on The lawyer’s oath shall additionally require the deferred adjudication community supervision or a statement that the lawyer will “conduct oneself with previous conviction or placement on deferred integrity and civility in dealing and communicating adjudication community supervision triggers that with the court and all parties.” prohibition and disentitlement. The bill makes statutory provisions governing an order of non-disclosure of B. SB 172 & SB 173 – Controlled Substances Act criminal history record information applicable to an Signed 5/22/15 and 6/1/15, Respectively order of non-disclosure sought or granted under the (Effective 9/1/15) bill’s provisions. The bill specifies that a person whose Both SB 172 and 173 make additions and changes criminal history record information is the subject of an to the chemicals and substances punishable under the order of non-disclosure is not required in any Texas Controlled Substances Act, including synthetic application for employment, information, or licensing cannabinoids. to state that the person has been the subject of any criminal proceeding related to the information that is the subject of the order and removes the restriction of

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C. SB 97 – Regulating “E-cigarettes” become eligible for sealing and authorizes the court to Signed 5/28/15 (Effective 10/1/15) hold a hearing before sealing the person’s records if the Makes changes to the Health and Safety Code so prosecuting attorney requests a hearing. that e-cigarettes are regulated in the same manner as other tobacco products, preventing their sale to persons younger than 18 years of age.

D. SB 505 – Meteorological Evaluation Towers Signed 5/19/15 (Effective 9/1/15) SB 505 amends the Transportation Code to create regulations for erecting and maintaining a “meteorological evaluation tower,” and makes it a Class C misdemeanor to violate the rules, or a Class B misdemeanor if a violation leads to a collision that causes bodily injury or death to another person.

E. SB 570 – Prohibited Use of Fireworks Filed and Enacted Without Signature 5/28/15 (Effective 9/1/15) SB 570 makes it a Class C misdemeanor to use fireworks at a state highway rest area where they have been prohibited.

F. SB 899 – Regulation of Money Services Businesses Signed 5/22/15 (Effective 9/1/15) Amends the finance code to permit prosecution under Section 151.003, with respect to the amount of security required for a currency exchange license, in either Travis County or in the county where the offense was committed.

G. SB 1353 – Improving Indigent Defense Signed 5/21/15 (Effective 9/1/15) SB 1353 amends the Government Code to provide grants to counties for providing or improving indigent defense services.

H. SB 1707 – Sealing of Certain Juvenile Records Sent to Governor 5/25/15 (Effective 9/1/15) S.B. 1707 amends the Family Code to remove the condition, for purposes of the requirement that a juvenile court order the sealing of the records in the case of a person who meets certain eligibility requirements and who has been found to have engaged in delinquent conduct or conduct indicating a need for supervision or who was taken into custody to determine whether the person engaged in such conduct, that the person who is the subject of the records at issue apply for the sealing of the records. The bill removes the requirement that a court hold a hearing before sealing the records of such a person or a person who is adjudicated as having engaged in delinquent conduct that constitutes a felony offense, with certain exceptions. The bill instead requires the court to give the prosecuting attorney for the juvenile court reasonable notice before such a person’s records 16