Monday, April 11, 2005

House Criminal Jurisprudence Committee Keeps Adding Prison Time

When you bought that fancy new camera phone, I'll bet you didn't realize turning it on in the movie theater might make you a felon. It could, if the Texas House Criminal Jurisprudence Committee gets its way.

That committee believes Texas needs at least 1,943 separate felonies, to judge by their approval last week of HB 1871 by Keel. (Texas had 1,941 felonies before that committee recommended
HB 151, which has run into trouble in the Senate.) HB 1871 would create a new state jail felony "if the person knowingly operates the audiovisual recording function of any device in a motion picture theater, while the motion picture is being exhibited, without the consent of the owner of the theater." The bill was brought to him, Chairman Terry Keel said at the hearing, by the Motion Picture Association of America.

Just a few years ago, that language would probably have only banned folks who were trying to pirate versions of the movie. Now, though, with many camera phones able to take short snippets of video, the plain language of the statute would make illegal merely turning such a device on while the movie is playing.

Actual movie piracy is already illegal, and a new law isn't necessary to prosecute folks for that. Instead, the proposed statute would make illegal short recordings that otherwise would have been allowed under "fair use" doctrine. It would even make illegal camera shots of audience members or subjects besides the movie -- merely "operating" the audiovisual function while the movie is playing would be a crime, regardless of whether you record any portion of a show. The sweeping language seems to scream "overkill," but the committee recommended the bill without amendment.

Another Keel bill, HB 1759, dictates that defendants are not eligible for juries to give them probation if they are charged with a state jail felony. That makes no sense to me, but they passed it out anyway. Legislative leadership has announced they intend to resolve Texas' overincarceration crisis through greater reliance on probation. This bill, though, would disallow probation for the lowest level felons (mostly people who committed small-time drug and vice crimes), though one would think those folks are more likely candidates for probation than, say, people who commit violent crimes. (Sigh.) So much for "smart on crime."

Okay, no wonder HB 1759 made "no sense to me." I need to correct my interpretation of this bill which, it turns out, I got exactly backwards. As a commenter pointed out, under current law there already is no probation for state jail felonies except for low-level, first-time offenders in drug possession cases, where probation is mandatory. According to Chairman Keel, who stopped me in the halls of the capitol to request a correction, the bill allows judges, only, to order probation, while juries would still not have that privilege. After combing through the statutes again, it's still awfully confusing, but I think I've confirmed his statement adequately to make a correction. As I often say in caveat, I'm not an attorney, and frequently struggle through the complexities of the statutes as much as anybody. This time I made a mistake. My apologies to readers and to Rep. Keel.

Both bills passed out of committee on unanimous 6-0 votes last Tuesday, with Keel, Denny, Escobar, Hodge, Raymond, and Reyna in favor, and the rest of the committee absent.


123txpublicdefender123 said...

It is already the law that juries cannot give probation for state jail felonies. It looks like the new bill extends that prohibition to first-time drug offenders to whom a judge is required to give probation (due to a mandatory probation bill passed last session).

Jim McCulloch said...

I mentioned in a fax to Terry Keel my "concerns" with his idiotic HB1871, and actually got a reply. I also mentioned that I read about it on your blog. He replies, and this is interesting:
"...the information from the website you reference [Grits] has incorrect information about the bill. The prohibited act in the legislation would be the unauthorized recording of the motion picture, not the mere use of a camera phone. The site also incorrectly stated that the act is already illegal...However, per your concerns, I will look at tightening up the language to make it clearer that the offender must not only be recording the motion picture, but also have the underlying intent to be doing so illegally, and I'll prepare a floor amendment accordingly."
Mr. Keel also claims your description of 1759 is inaccurate. He says "Defendants right now cannot receive probation on state jail felonies following a contested trial. HB 1759 would fix that." Given the backtracking, above, on the camera phone thing, this may be smoke and mirrors.
Mr. Keel is my elected representative, and I frequently send him barbed comments, and post them on my website. The one that got his attention is at

Gritsforbreakfast said...

Hey, I'm glad you found the blog post useful, and that Rep. Keel responded. Unfortunately, it's correct I made an error on HB 1759 (see the above correction).

However, Rep. Keel stopped me himself to ask for the correction on 1759, and he never mentioned anything wrong with my analysis of HB 1871 that's in the same post. I disagree with the interpretation of the bill in the email you were sent. The plain language says operating the device while the motion picture is running is illegal, not filming the picture. Here's the text:

"(b) A person commits an offense if the person knowingly
operates the audiovisual recording function of any device in a
motion picture theater, while a motion picture is being exhibited,
without the consent of the owner of the theater."

That simply does not say one has to be filming the motion picture to commit the crime. Merely operating the device is enough to commit the offense. I'm glad to hear he plans to tighten up the language.

In addition, I stated that "movie piracy" is already illegal, and of course it is. This bill makes the use of a piece of technology illegal, much like trying to criminalize using a VCR instead of merely enforcing copyright restrictions.