In for a penny, in for a state jail felony

The Fort Worth Star-Telegram has a pair of stories from the Texas District and County Attorney Association's legislative briefings, which have been going on the past few weeks. This story critiques a change in the statute on scrap metal theft that makes it a state jail felony literally to steal one penny, or any other item with the tiniest iota of copper (or other designated metals) in it."In their zeal to get after some of these scrap-metal scavengers, they really swung the pendulum pretty far to the other side,"said TDCAA lobbyist Shannon Edmonds. A staffer for the author of the bill, state Sen. Royce West, said they would "rely on the reasonable discretion of the prosecutors," but the scrap-metal statute was already ineffective and over-the-top. Now it's just absurd.

Another article focuses on new legislation the prosecutors' association thinks is unworkable. The story opens:

Texas prosecutors may not enforce new laws passed by the Legislature this year dealing with human trafficking, sexting and domestic abuse because of problems with how they were written.

The Texas District & County Attorney Association, an Austin group that trains prosecutors, has started warning members that some new laws have loopholes or mistakes that may make them unworkable from a prosecutorial standpoint. Shannon Edmonds, the group's legislative guru, is widely viewed as an influential analyst in the state's legal community.

In particular, bills expanding protective orders to include sex trafficking victims and pets are likely unenforceable, and a statute creating a new crime for "sexting" will lead to absurd results. On the sexting statute:

Edmonds is advising them to largely ignore the law because of problems including vague descriptions and conflicting rules.

"It's a bill written by people who don't understand the criminal-justice system," Edmonds said. "Prosecutors and police officers are going to have to use their discretion and ignore the absurdity that was written into the law."

Among the problems with the sexting law, Edmonds said, is that it creates a Catch-22 for adults who come across any explicit photos that were involved in an incident. The law tries to block such adults from being charged with possessing child pornography if they are holding on to the material to aid in an investigation, but Edmonds said it wasn't written properly.

"You could either destroy the evidence and be prosecuted for destruction of evidence or you could not destroy it and arguably be prosecuted for child pornography," Edmonds said, though he added that it's unlikely that a prosecutor would apply pornography charges in such a situation.

The law's lead author, Sen. Kirk Watson, D-Austin, said in a statement that he and other lawmakers worked with local prosecutors to "ensure this solution was sensible, appropriate and, most of all, workable."

That the group didn't bring up their concern earlier is "surprising and disappointing," Watson said.

The sexting bill was always a solution looking for a problem. Supposedly it was passed so teens involved in sexting wouldn't  be charged with child pornography. But when I attended the TDCAA briefing in Austin last month, Edmonds asked the roomful of prosecutors how many had filed child porn charges in sexting cases, and none raised their hands. Edmonds said TDCAA has never heard of such a case.

As reported previously on Grits, Edmonds counted 53 new crimes created by the Legislature this session, not including penalty increases on existing laws. Few if any of those new criminal laws were actually needed, in this author's view, except for a handful aimed at fixing legislative screwups from prior sessions like the ones Shannon described on protective orders, sexting, etc.. At this point the legislature expands the scope of criminal law every session more out of habit than necessity.