Criminal Law Changes
Hundreds of new laws take effect on September 1, 2019. However, there are twenty-five bills that most people should be keenly aware of and that will affect the day-to-day practice of criminal lawyers, prosecutors, judges, and of course, defendants and victims alike. Perhaps of most significance, the Legislature increased penalties and created some new offenses to combat human trafficking and prostitution.
Expands the “nature of the relationship” evidence by the defense. This amendment to Code of Criminal Procedure (CCP) Article 38.471, which formerly applied to just cases of domestic violence, now applies to all offenses and still applies to both parties. This change allows the court to consider the “nature of the relationship” between the victim and defendant as evidence to understand what caused the alleged crime.
Changes the allocation of court cost revenue to fund indigent defense. Revenue from court costs will now be sent to the indigent defense account, rather than law enforcement management, BAC testing, crime victim’s compensation, and retirement.
Repeals the Driver Responsibility Program. This means individuals with unpaid surcharges as of September 1 will no longer be required to pay. In addition, those who have had their driver’s license suspended due to unpaid surcharges will have their suspensions lifted, without having to pay a reinstatement fee.
Parole in a Jury Charge after trial. Clarifies and corrects the references of parole in jury charges. The current charge is factually incorrect in that it indicates a sentence may be reduced by parole, as opposed to the bill correctly stating that the term of imprisonment may be reduced. This bill further eliminates all references to good conduct time.
Sexual Assault FBI Database. Sexual Assault “investigations” must be entered into the Violent Criminal Apprehension FBI database, listing the suspect’s name, DOB, specific offense, description of manner in which committed, and any other information required by the FBI for inclusion.
DNA Samples. Mandatory DNA sample from defendants now applies post-arrest instead of post-indictment.
DNA Analysis timeframe. Starting in 2021, DNA evidence from sexual assault cases must be analyzed in 90 days.
Statute of Limitations on Sexual Assault Cases. The Statute of Limitations is eliminated for sexual assault cases where biological matter is collected, and the material has not yet been subject to forensic testing or where there is no DNA match.
Changes to Probation and Deferred Adjudication in Sex Cases. Indecency with a child by exposure to a child under 14 is added to the list of offenses for which the defendant is not eligible for probation from a judge or a jury. (Indecency by contact was previously on this list.) Human trafficking, continuous human trafficking, aggravated promotion of prostitution, and compelling prostitution are added to this list and are not eligible for deferred adjudication.
Protective Orders. This bill requires an attorney for the State to file an application for a protective order on certain offenses following conviction or placement on deferred adjudication, unless one has already been filed by the alleged victim.
Hemp, Marijuana and CBD. Texas lawmakers legalized the cultivation and production of hemp and other hemp-related products—such as CBD—that have less than 0.3 percent of THC, which causes the psychoactive high cannabis is known for. This law took effect on June 10. Section 481.002 of the Health and Safety Code now states hemp or the THC in hemp is not included under the Section (5) definition of a controlled substance, and Section (26) excludes hemp from the definition of marijuana. This bill is effective as of June 10, 2019.
Professional License and Criminal Convictions. Provides the ability for some to obtain a professional license with a past criminal conviction. This bill removes, as grounds for disqualification for a professional license, a conviction within the past 5 years for an offense not directly related to the licensed occupation. The intent of the legislation is to enhance opportunities for a person to obtain gainful employment following conviction and discharge of the sentence.
Red Light Cameras in Texas. Prohibits the use of red-light cameras in Texas. This bill is effective as of June 2, 2019.
Tobacco Purchase and Sale in Texas. Raises the age to purchase tobacco to 21 except for military personnel. Everyone under 30 must show ID for purchase.
Deferred Adjudication in DWI Cases. Deferred Adjudication is now available to first-time DWI offenders with a BAC below .15 percent, which could be non-disclosed upon dismissal or discharge. Qualified individuals must have an ignition interlock device (IID) installed on all vehicles, unless they obtain a waiver after completing an alcohol/drug evaluation.
Sealing Criminal History. Lowers the age regarding the right to seal records to age 17 (or after one year has elapsed from final discharge) in juvenile cases.
New Sex Related Crime. Creates a new offense called, “indecent assault,” which means touching someone in a sexual manner without the other person’s consent. This sex crime is a Class A misdemeanor. Legislative intent is unwanted groping of someone 17 years and older cannot be adequately addressed with the maximum penalty of a Class C misdemeanor. Bill includes language “without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person.” This bill is effective January 1, 2020.
Sexually Explicit Images. Unlawfully transmitting sexually-explicit visual images is a Class C misdemeanor; which is described as “any person engaging in sexual conduct or with the person’s intimate parts exposed; or covered genitals of a male person that are in a discernibly turgid state and not sent at the request of or with the express consent of the recipient.”
Prostitution Cases. Creates the new offense of Online Promotion of Prostitution. The penalty is a 3rd-degree felony but can be a 2nd upon prior conviction under this section or if conduct involves a person under the age of 18.
Prostitution Cases. Creates the new offense of Aggravated Online Promotion of Prostitution. The penalty is a 2nd-degree felony but can be a 1st upon prior conviction under this section or if conduct involves a person under the age of 18. “Aggravated” in this context refers to the intent to promote the prostitution of five or more persons or facilitating five or more persons to engage in prostitution.
Capital Non-Death Murder. Adds Section (9) to Penal Code Section 19.03 and makes it a capital offense to murder an individual 10 years of age or older but younger than 15. However, the death penalty may not be assessed upon conviction.
Mail and Package Theft in Texas. Creates a Mail Theft statute in Penal code section 31.20. A “porch pirate” amendment was added to this bill on the House floor, which states the person appropriates mail from a mailbox or a premises. This law is also aimed at professional thieves who commit fraud or identity theft after stealing mail.
Revenge Porn Statute. This bill is an attempt to rewrite Penal Code Section 21.16(b), which is commonly known as the “revenge porn” statute. The 12th Court of Appeals struck down this law, and it is pending at the CCA. The new language specifies a person commits a civil or criminal offense if, without consent, an individual intentionally discloses intimate visual material with the intent to harm the depicted individual.
Firearms and CHL. This law creates a new defense whenever a CHL carrier accidentally carries a handgun onto the property that doesn’t allow firearms, but quickly leaves after being notified of the rules.
Theft of Service. Amends Penal Code Section 31.04 to create a presumption of theft of service. However, the bill provides that the term “written rental agreement” does not include an agreement permitting an individual to use personal property for personal or household purposes, which is automatically renewable with each payment and permits the individual to become the owner.
If you’d like to know more about Texas laws and criminal law changes, contact Houston criminal defense attorney Gary Tabakman at (713) 429-1624.
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