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New Texas Laws Enacted During the Legislature’s 83rd Session that Took Effect on September 1, 2013

As I’m sure you’re aware, a few Sundays ago was September 1, 2013. And, some of you may know what that means. That’s right. New law day. All of the new laws created by the 83rd Texas Legislative session went into effect on September 1st. And, instead of having to rely on the news or aimlessly search the internet, I’m here to provide you with a quick update on all of the new bills that officially became law this month. However, since I’m only concerned with criminal law, I’m going to assume that that’s all you care about as well. Therefore, this blog will only address the new laws that went into effect that address the criminal justice system and the practice of criminal defense in the State of Texas.

Senate Bill 1611 — This is the “Michael Morton Act,” which requires prosecutors to open their files to defendants and keep records of the evidence that they disclosed in an attempt to reduce wrongful convictions in Texas. While the United States Supreme Court’s decision in Bracy v. Maryland has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” this new law requires disclosure of all police reports and witness statements, regardless of whether the evidence is material to guilt or punishment, and it requires that any other evidence that is material to any matter be disclosed as well.

Senate Bill 344 — This law addresses the appeals process for people who were charged with a criminal offense and subsequently convicted based on “junk science” by expressly allowing courts to overturn convictions in cases where the forensic science that originally led to the verdict has since changed. It also authorizes courts to grant relief on applications for writs of habeas corpus (get out of jail cards) if the relevant scientific evidence is currently available, but it was not available at the time of the conviction because the evidence was not ascertainable through reasonable diligence at the time of trial, so long as the scientific evidence would be admissible.

Senate Bill 1238 — This law specifically authorizes the Texas Forensic Science Commission to investigate forensic disciplines that are unaccredited such as arson, fingerprinting, breath-alcohol concentration testing, ballistic examinations, and unaccredited entities.

House Bill 1847 — This law requires that prosecutors complete at least one hour of ethics training relating to the duty to disclose exculpatory and mitigating evidence.

Senate Bill 825 — This law allows for the filing of a grievance by an exoneree of up to four years against a prosecutor who is alleged to have violated the ethics rule regarding the duty to disclose evidence. It also prohibits a private reprimand for such a violation.

House Bill 2090 — This law requires a written statement signed by an accused to be in the language that he or she can read and understand before it can be admitted as evidence during a criminal proceeding.

House Bill 1302 — This law requires an automatic sentence of life in prison without the possibility of parole upon a second conviction for a “sexually violent offense” against a child under the age of 14. This law also specifically prohibits registered sex offenders from working at amusement parks or seeking employment as a cab, bus, or limousine driver.

Senate Bill 124 — This law provides that the offense of Tampering With A Governmental Record is enhanced from a Class A Misdemeanor to a 3rd Degree Felony if the gevernmental record was a public school record, report, or state-mandated assessment instrument (or a 2nd Degree Felony if the person’s intent was to defraud or harm another).

House Bill 8 — This law addresses human trafficking and provides for many enhancements, including a change on all Prostitution offenses from a Class B Misdemeanor to a 2nd Degree Felony if the person solicited is younger than 18, regardless of whether the person knows the age of the person solicited at the time of the offense. It also significantly alters the definition of the crime of Possession of Child Pornography by providing that a person commits an offense if they knowingly or intentionally “access with intent to view” child pornography.

Senate Bill 1360 — This law enhances the penalty to the greater of a 3rd Degree Felony or the most serious offense charged in a criminal case if the underlying proceeding involves Family Violence. It also provides a statutory forfeiture-by-wrongdoing provision, which provides that a party to any criminal case who wrongfully causes the unavailability of a witness automatically forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

Senate Bill 275 — This law enhances the penalty from a 3rd Degree Felony up to a 2nd Degree Felony for the offense of Leaving The Scene Of An Accident Resulting In The Death Of A Person.

Senate Bill 549 — This law enhances the minimum penalty from 5 years to 15 years in prison upon a conviction for a 1st Degree Felony Engaging in Organized Crime offense. Additionally, it requires an automatic sentence of life in prison without the possibility of parole upon conviction of Engaging in Organized Crime if the underlying offense is an Aggravated Sexual Assault and the defendant is 18 years of age or older and the victim was either younger than 6; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim was younger than 17 and suffered serious bodily injury.

House Bill 2539 — This law places an affirmative duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography, and it provides for a new Class B Misdemeanor offense if the computer technician fails to make such report.

Senate Bill 12 — This law suspends evidentiary Rules 404 and 405 in criminal trials for certain sex offenses by allowing the admission of evidence during the guilt-innocence phase of a trial that the defendant has committed a separate enumerated sex offense for any bearing the evidence has on relevant matters, including the character of the defendant and the acts performed in conformity with the character of the defendant. It also requires the trial judge to make a determination outside the presence of the jury and prior to the introduction of such evidence that the defendant committed the separate offense beyond a reasonable doubt.

Senate Bill 2 — This law addresses the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). Prior to this new law, the only punishment available for a person convicted of capital murder in Texas was either automatic life in prison without the possibility of parole or the death penalty. This posed a unique issue for 17 year olds (who are considered adults under Texas law) that were convicted of capital murder since both of the mandatory punishments (life in prison without the possibility of parole and the death penalty) had already been declared unconstitutional by the U.S. Supreme Court. Therefore, this law requires that a person who is younger than 18 and who is convicted of capital murder in Texas be punished with an automatic sentence of life in prison with the possibility of parole.

House Bill 434 — This law expands the list of those who are authorized to draw blood from a person during a DWI investigation to include emergency medical technicians and paramedics. Under the previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a police officer for the purposes of investigating intoxication-related offenses. The new law will allow for a person’s blood to be drawn without having to transport the person to a separate facility such as a hospital during an intoxication-related investigation.

House Bill 1862 — This law amends the previous prohibited weapons law by removing the switchblade knife from the prohibited weapons list so that there are no longer criminal penalties associated with possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

Senate Bill 821 — This law updates Texas law by adding “hot drafts” to the “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers, or “hot drafts.”