Monday, July 22, 2013

Texas criminalized uprooting seagrass, legalized switchblades (but not daggers, dirks, stilettos, poniards, or Bowie knives)

Were you aware that the Texas Legislature this session legalized switchblade knives? Me either, but HB 1862 by Dutton removed switchblades from the list of prohibited weapons in Chapter 46.05 of the Penal Code. However, the Penal Code at 46.01(6) still lists under the definition of "illegal knife" any knife with a blade over five and one-half inches; any hand instrument designed to cut or stab another by being thrown; a "dagger, including but not limited to a dirk, stiletto, and poniard"; a Bowie knife (scandalous in Texas, no?); a sword; or a spear. So a spring-loaded knife with a blade under 5.5 inches is legal so long as it's not a dagger, dirk, stiletto or poniard. Got it?

Where else are you going to get that kind of information? Thanks to the generosity of Grits donors, on Friday I attended the biennial legislative update from the Texas District and County Attorneys Association, which kicked off a statewide tour giving CLEs about changes in criminal law this past session. (To contribute to this sort of coverage, hit one the Pay Pal button in the right-hand column. Between $125 for the training plus a few recent research and travel expenses, Grits' blog coffers are running low.)

TDCAA's Shannon Edmonds put up a telling slide depicting the number of new crimes created by the Legislature each session (excluding mere penalty "enhancements," or increased penalties for existing crimes):

2001: 34
2003: 23
2005: 49
2007: 50
2009: 40
2011: 53
2013: 41

New crimes this year include "Uprooting seagrass plants" (Class C misdemeanor) and "performing device maintenance services without a license (Class B misdemeanor, Class A for a subsequent offense).  Drone fans will recall the new prohibition on "possession, display, disclosure, distribution or use of image captured by unmanned aircraft" (with many exceptions). And it's now an offense for motorcyclists to carry a passenger if their bike doesn't have footrests and handholds. The list goes on.

In addition to 41 new crimes, TDCAA counted 25 new criminal penalty enhancements, including."criminal slander or libel of a savings bank" (now a state jail felony). Perhaps a more important enhancement was to boost the penalty for witness tampering in family violence cases to a second or third degree felony, depending on the circumstances. That one could get used far more often than anyone would ever slander a savings bank. Making, selling or altering a car's airbag without proper credentials can now be a first degree felony if death results. Failure to stop and render aide is now a second degree felony if the person dies. And while prostitutes may be treated more gently under diversion programs the Legislature approved, criminal penalties for pimps were increased all the way up to a first degree felony (5-99 or life) if one or more prostitutes was under 18.

"Horror stories" drive policymaking on criminal justice, prosecutors were told, so if they want their bills to pass they should look for horror stories that exemplify the need for them the way the Michael Morton case drove criminal-discovery reform. (Morton, incidentally, has agreed to be the keynote speaker at TDCAA's annual conference.) For a moment, the group thought the Kaufman County prosecutor murders were going to become that sort of high-profile, policy changing case, they said, but the media and legislators lost interest when it turned out the perpetrator was a former Justice of the Peace and not a member of the Aryan Brotherhood or a Mexican drug cartel.  The Legislature did make birth dates and home addresses confidential on certain public documents for prosecutors and peace officers but not much else was done in direct response to those events, they said.

One horror story from half-a-continent away that did gain traction was the school shooting episode in Connecticut. In response, the Texas Legislature created a new system of armed, undercover school marshals. But the idea is already running into resistance, said Edmonds, because insurance companies don't want to cover school districts employing said marshals, apparently fearing that an anonymous, armed adult on campus might get shot by police responding to a chaotic active shooter situation. I hadn't followed this development; only time will tell how it plays out.

Much attention was paid to the so-called "Michael Morton Act" mandating open files by prosecutors. Kepple said the bill was never run through the Legislative Council so as written it's "a little boogered up." The bill essentially codifies Brady v. Maryland, they said, requiring the state to document what it does and doesn't give to the defense. The defense bar, in turn, can't share that information with third parties, including the media, before it's submitted into evidence. There was some discussion of the lack of penalties if defense attorney abuse open-file privileges. Before this law, prosecutors could threaten to withhold discovery in future cases if defense lawyers released confidential information. Now that's a hollow threat. The law requires disclosure. If they can find the right "horror story," perhaps prosecutors will seek penalties next session for defense attorneys who release information without proper authority. OTOH, Kepple pointed out, there are also no penalties for prosecutors who don't comply with the law, so it's possible they'd be better off leaving well enough alone.

 They mentioned a couple of bills familiar to Grits readers: One expanding access to habeas corpus writs in junk science cases and another requiring warrants for cloud-based email and other digital content. I'm still pretty pleased about both of those.

Judges must now formally ask the state whether they've received a victim impact statement in cases where they're authorized. Apparently 2/3 or more of the time they'll be told "no." Most victims decline to provide them, said Edmonds. Victims can also decline to be contacted by the defense in capital murder cases as part of "defense initiated victim outreach," which Kepple described as a predator "in sheep's clothing." The new statute says victims may designate someone at the prosecutor's office to interact with the defense counsel, though it's not required. If this option is widely used, I bet it's because prosecutors push for it, not victim families.

Edmonds chided the Legislature for continuing to create human trafficking offenses when few if any prosecutors in the field are running across those sorts of cases in their regular practice. He asked the audience if anyone had used the statute and no hands visibly rose. There's a new reporting requirement for prosecutors on human trafficking and a new civil cause of action.

Grits has been attending these post-session TDCAA wrap ups for several sessions and I'll give them credit for consistency. When Texas passed its much ballyhooed Life Without Parole (LWOP) legislation for adult capital cases in 2005 - a bill Grits disliked at the time - TDCAA's Edmonds and Rob Kepple opined that the Legislature could not prevent themselves from expanding the use of the penalty to non-capital crimes, predicting that LWOP sentences would result in a sort of mission creep beyond just its role as an alternative to the death penalty.

That turned out to be prescient. Though LWOP was pitched as an alternative to the death penalty, in 2007, Kepple pointed out, the Lege added LWOP on a second conviction for continuous sexual abuse of a child. In 2011, they created an LWOP punishment for human trafficking and second-offense agg-sex assault. This year they added sexually violent offenses against a child under 14. Now that the penalty exists, Kepple pointed out, politicians of all stripes inevitably will seek to apply it in more circumstances. Though he didn't say so, this sets the state up for our grandchildren to pay for constitutionally required medical care for elderly prisoners the state can't release 40-50 years down the line. It also gives prosecutors enormous leverage to coerce plea bargains in cases where the penalty may be applicable. Along the same lines, the Legislature created several new mandatory minimums including for organized criminal activity and injury to a child, increasing the amount of time before offenders become parole-eligible. One can't expect TDCAA to complain about prosecutors being handed a bigger club, but implicit in Kepple's comments was a sentiment that it's probably not a wise policy choice: Texas' criminal penalties have long been tough enough.

Grits may have more tidbits to come from the "Legislative Update" manual that accompanied the program but those are the highlights from my notes.

RELATED: See the Texas Criminal Justice Coalition's lists of reform-oriented criminal justice bills that passed and bad bills defeated in the 83rd Texas Legislature.


Anonymous said...

Grits--any mention of the death of SB 834 (aka, the "Patricia Pollard Protection Act of 2013")?

Gritsforbreakfast said...

No, they focused exclusively on stuff that passed, which is all the practitioners care about. The stuff that failed is all insider baseball.

Anonymous said...

That's surprising, given the enormous fear grand jurors must feel going about their work, and the extraordinary steps they take to conceal their identities.

Phillip Baker said...

Are such knives illegal just to posses or to have in public? I guess I may be living in a TDCJ unit down the road. My chef knife is a good 10" if not longer. So's my bread knife. I also possess a Bowie knife and a sword. And what about those huge meat cleavers most BBQ joints use. They're throwable.

Somebody needs to alert the Knights of Columbus and the Masons. There could be whole units devoted to knife crimes. All proving once again that our Lege often acts as a clown college.

Gritsforbreakfast said...

Phillip, I suppose you must thank some combination of dumb luck and prosecutorial discretion as to why those knives don't get you prosecuted. As for what's legal or illegal, I suggest should read the referenced Penal Code provisions for yourself.

Anonymous said...

Illegal knives are illegal to carry on or about one's person when not in a vehicle or engaged in one of the listed exceptions ( see 46.15). They are not what switchblades have been for years, a prohibited weapon that is illegal to possess (others include chemical dispensing devices and knuckles).

Anonymous said...

Illegal knives are illegal to carry on or about one's person when not in a vehicle or engaged in one of the listed exceptions ( see 46.15). They are not what switchblades have been for years, a prohibited weapon that is illegal to possess (others include chemical dispensing devices and knuckles).