Legislative updates

The Newsletter of David Frank

Results from the 77th Legislative Session

As a courtesy from the Law Office of David Frank

Every two years, the Texas Legislature assembles and enacts new bills, amends existing legislation, and repeals old statutes. To protect the rights of our clients, my office has prepared this summary of some of the more important legislative changes in the area of Texas criminal law. This summary does not contain every legislative change, nor does it contain the exact language of each new statute. Instead, it attempts to provide you with some useful information in areas of common concern. The new laws are effective September 1, 2001.

NEW CRIMES

POSSESSION OF ALCOHOLIC BEVERAGE IN A MOTOR VEHICLE

Anyone in a motor vehicle on a public highway commits a Class C Misdemeanor (Punishable by fine only) if they knowingly possess an open container of an alcoholic beverage. It does not matter if you have finished drinking. An empty container can still get you a ticket.

While you cannot have open containers of alcohol in a car or truck, the law says that it is okay for passengers to have open containers in a bus, taxicab, limousine, motor home, or a recreational vehicle. The police can give you a citation to appear in court, but they will not arrest you as long as you agree in writing to appear in court on the date and time specified.

SUSPENSION PERIODS INCREASE FOR DRIVING WHILE INTOXICATED CONVICTIONS -- OFFENDERS WHO REPEAT WITHIN 5 YEARS:

If you are convicted of a second or subsequent DWI within 5 years of your last conviction, you will face stiffer penalties and more serious driver’s license suspensions. If you commit a second or subsequent DWI or intoxication manslaughter within five years of your most recent DWI, your driver’s license will be suspended for one year. Additionally, if your driver’s license is suspended for a second or subsequent intoxication assault committed within five years of your most recent intoxication assault, the suspension continues for a period of one year.

– You will serve a minimum of 5 days in jail as a condition of probation. You will be ineligible for an occupational driver’s license for one year. You will be required to have an ignition interlock device installed in any car you operate for one year after your license is no longer suspended.

SUSPENSION PERIODS INCREASE FOR DWI ARRESTS:

FAILING THE BREATH TEST (21 YEARS OF AGE AND OLDER)

If you are asked to perform a DWI breath test and you fail the breath test, your driver’s license will be suspended for 90 days. The suspension increases to 1 year if you have had a previous alcohol-related or drug related enforcement contact within 10 years of the date of your arrest. A breath test failure in Texas means you have a Blood Alcohol Concentration of 0.08 or higher.

REFUSING THE BREATH TEST (21 YEARS OF AGE AND OLDER

If you refuse to take the breath test, your driver’s license will be automatically suspended for 6 months. The suspension increases to 2 years if you have had a previous alcohol-related or drug related enforcement contact within 10 years of the date of your arrest. The police are now authorized to confiscate your driver’s license at the time of a DWI arrest for refusal to take, or failure of, a breath test. The officer will issue you a temporary driver’s permit that expires on the 41st day after the date of issuance. The fee for reinstating your driver’s license after suspension has gone up to $125.00.

FAILURE TO SURRENDER YOUR DRIVERS LICENSE IS A CRIME:

It is a Class B misdemeanor if you fail or refuse to surrender your driver’s license after law enforcement personnel have demanded it.

Please Read:

— USE GOOD SENSE WHEN YOU DRINK. EACH YEAR PEOPLE DIE AND ARE SERIOUSLY INJURED BECA– USE OF DRUNK DRIVERS. ASK SOMEONE ELSE TO DRIVE WHEN YOU HAVE BEEN DRINKING. TAKE A TAXI CAB HOME. REMEMBER, DWI IS EXPENSIVE TO DEFEND. KNOW YOUR RIGHTS. YOU HAVE THE RIGHT TO REF– USE ALL TESTS AND QUESTIONING BY THE POLICE. YOU HAVE THE RIGHT TO BE REPRESENTED BY A LAWYER. IF YOU HAVE NOT BEEN CONVICTED OF A DWI IN THE PAST FIVE YEARS, YOU ARE ELIGIBLE FOR AN OCCUPATIONAL DRIVER’S LICENSE IF YOU REF– USE THE BREATH TEST.

IMPROPER PHOTOGRAPHY OR VISUAL RECORDING:

A person commits a State Jail Felony if the electronic means, visually records another without that person’s consent and with person photographs, videotapes, or by other the intent to arouse or gratify the sexual desire of any person. This new offense does not require nudity, pornography, or lewd images. It is a crime if photographs are taken without permission and the images are intended to cause someone to become sexually aroused.

FORFEITURE AND CONTRABAND:

Many sexual offenses against children involve the use of computers and several of these offenses involve the possession of child pornography or the enticement of children over the Internet. The new law expands the definition of “contraband” to include property used in the commission of a felony involving the possession or promotion of child pornography, indecency with a child, sexual performance by a child, or certain criminal solicitation of a minor offenses.

KNOW YOUR RIGHTS IF YOU ARE ARRESTED:

YOU HAVE THE RIGHT to know the accusation against you and of any affidavit filed therewith;
YOU HAVE THE RIGHT to retain counsel;
YOU HAVE THE RIGHT to remain silent;
YOU HAVE THE RIGHT to have an attorney present to advise you prior to and during any questioning;
YOU HAVE THE RIGHT to terminate an interview at any time;
YOU HAVE THE RIGHT to request the appointment of counsel if you are indigent and cannot afford counsel;
YOU HAVE THE RIGHT to be informed by a magistrate that you are not required to make a statement and that any statement you make may be used against you;
YOU HAVE THE RIGHT to a reasonable time and opportunity to consult counsel;
YOU HAVE THE RIGHT to be admitted to bail if allowed by law.

USING CHILDREN TO SELL DRUGS:

There is some concern that some adults recruit minors to sell drugs to school-age children. The new law increases the penalty for adults who use children under 18 years of age to commit or assist in the commission of the manufacture or delivery of certain illegal drugs. If the defendant used or threatened to use force against the child or another to gain the child’s assistance, the offense is a felony of the first degree. Punishment under this offense can not be run concurrently with any other sentence.

PROSTITUTION:

Prostitution occurs when a person knowingly engages in or offers or agrees to engage in sexual conduct for a fee, or solicits another in a public place to engage in sexual conduct for hire. The new law makes prostitution a State Jail Felony if a person has been previously convicted of prostitution three or more times. In some cases, a State Jail Felony can be enhanced to a second degree felony (up to twenty years in prison and a $10,00000 fine) if a defendant has two prior felony convictions. It is a Third Degree Felony for the act above if the person in jail or prison has been convicted and attempts contact.

PROHIBITED RIDING IN THE TRUCK BED:

Texas law now prohibits a child under the age of 18 from riding in the bed of a truck or trailer at any speed. There are several defenses to prosecution under this section including that the person was: “operating a vehicle that is the only vehicle owned or operated by the members of a household.”

INTERFERENCE WITH POLICE SERVICE ANIMALS:

It is a Class C misdemeanor if a person recklessly teases, torments, or strikes a police service animal. It is a Class B misdemeanor if a person throws an object or substance at a police service animal. It is a Class A misdemeanor if a person interferes with or blocks a police service animal, or interferes with or obstructs the handler or rider of a police service animal in the manner that restricts the rider’s control of the animal. This includes releasing the animal from its area, or entering the area of control of the animal without consent of the rider, including placing food or any other object into that area. It is a State Jail Felony if a person injures, tries to injure, or tries to kill a police service animal. It is a Third Degree Felony if a police service animal dies as a result of the conduct of any person intending to injure the animal.

UNLAWFUL POSSESSION OF METAL OR BODY ARMOR BY FELON:

It is a Third Degree Felony for a person who has been convicted of a felony to possess metal or body armor. “Metal or body armor” means any body covering manifestly designed, made, or adapted for the purpose of protecting a person against gunfire.

IMPROPER COMMUNICATION WITH PERSON:

If a person has been charged with a sex offense and is in jail or prison, it is a Class A misdemeanor if that person contacts in any manner the victim who is under 17 years old or contacts the victim’s family without consent of the victim or the victim’s parent or guardian.

HATE CRIMES:

Hate crimes are acts committed by a defendant who intentionally selected a victim because of the victim’s race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. Generally, the punishment for the offense is increased to the punishment prescribed for the next highest category of offense. The new law enhances penalties for crimes motivated by hate, prejudice, or bias.

HARASSMENT BY EMAIL:

It is now an offense if a person commits harassment by email or electronic communication.

ILLEGAL -- USE OF NITROUS OXIDE:

Nitrous oxide and ketamine belong to a group of drugs known as dissociative anaesthetics, which separate perception from sensation and may lead to dependency and health complications. Although the drugs have legitimate legal uses, they are often abused by teenagers. The new law makes the possession or use of nitrous oxide by a person and the sale or delivery of nitrous oxide to a minor a class B misdemeanor under certain conditions.

BE CAREFUL!!! IF YOU ARE IN JAIL CHARGED WITH A SEX OFFENSE, SIMPLY CALLING THE ALLEGED VICTIM OR THEIR FAMILY CAN LEAD TO ADDITIONAL CRIMINAL CHARGES. THERE IS NO EXCEPTION FOR YOUR OWN FAMILY MEMBERS.

PROTECTIVE ORDERS EXPANDED TO DATING VIOLENCE:

Formerly, protective orders applied only to married couples, couples with a child, or cohabitating couples. There have been recent incidents of domestic violence related murders where the victims have been unable to obtain a protective order because the victim did not meet the above criteria. The new law enables individuals, who have had a continuous social relationship of a romantic or intimate nature with an abusive partner, to apply for an order to protect the victim and the victim’s child. Because dating relationships are difficult to define, I have provided you below with the language of the new statute: DATING VIOLENCE (a) “Dating violence” means an act by an individual that is against another individual with whom that person has or had a dating relationship with and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself. (b) For purposes of this title, “dating relationship” means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of: (1) the length of the relationship; (2) the nature of the relationship; and (3) the frequency and type of interaction between the persons involved in the relationship. (c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship” under Subsection (b).

SEATBELT SAFETY:

Texas Law now requires that all children between the ages of 4 and 17 wear a seat belt while riding in a vehicle.

It is an offense if you operate a passenger vehicle and transport a child who is younger than 4 years of age or less than 36 inches tall and you do not keep the child secured during the operation of the vehicle. The child must be secured in a child safety seat system according to the instructions of the manufacturer of the safety seat system.

You commit an offense and can be ticketed if you are not wearing a seatbelt while riding in a motor vehicle while it is in operation and you meet the following conditions:

-you are at least 15 years old and you are riding in a seat that is equipped with a safety belt and you are not secured by this belt.

It is a defense to prosecution if:

-you possess a written statement from a licensed physician stating that for medical reasons you are not to wear a seatbelt;

-you present to the court no later than 10days after the date of offense, a letter from a licensed physician;

-you are employed by the United States Postal Service and you are performing a duty that requires you to service postal boxes from a vehicle or that requires frequent entry into and exit from a vehicle;

-you are employed by a public or private utility company and are engaged in reading of meters or performing a similar duty for that company requiring frequent entry and exit of a vehicle.

GASOLINE THEFT:

Your license can be suspended for 180 days if you dispense motor fuel in your vehicle and leave the premises without paying for the fuel and if you have had prior convictions for motor fuel theft. Your driver’s license can be suspended for one year if you have previously had your driver’s license suspended.

GENERAL PUNISHMENT CLASSIFICATIONS:

Class C Misdemeanor fine not to exceed $500.00, no jail time. Class B Misdemeanor punishable by confinement in the county jail up to 180 days and a fine not to exceed $2,000.00.

Class A Misdemeanor punishable by confinement in the county jail for up to 1 year and a fine not to exceed $4,000.00.

State Jail Felony punishable by confinement in the State Jail Facility from between 180 days to 2 years and a fine not to exceed $10,000.00.

Third Degree Felony punishable by confinement in prison from 2 years to 10 years and a fine not to exceed $10,000.00.

Second Degree Felony punishable by confinement in prison from 2 years to 20 years and a fine not to exceed $10,000.00.

First Degree Felony punishable by confinement in prison from 5 years to life imprisonment and a fine not to exceed $10,000.00.

First Degree Felony Enhanced (with one prior felony conviction) punishable by confinement in prison from 15 years to life and a fine not to exceed $10,000.00.

Habitual Offender (with two prior felony convictions) punishable by confinement in prison from 25 years to life and a fine not to exceed $10,000.00.

PENALTY INCREASES

RETALIATION:

Retaliation is now a Second Degree Felony offense if the victim was harmed or threatened because of the victim’s status as a juror

TAKING A WEAPON FROM AN OFFICER:

Taking a weapon from an officer is a Third Degree Felony. It is a State Jail Felony if the person merely attempts to take the weapon.

EVADING ARREST:

Evading arrest is a State Jail Felony if a person uses a vehicle while in flight. It is now a Third Degree Felony if a person uses a vehicle and has been previously convicted of evading or if the pursuing officer suffers serious bodily injury.

ANIMAL CRUELTY:

Texans have become increasingly concerned with cases of cruel and violent acts perpetrated on innocent pets and animals. The new law amends the Penal Code to increase the penalties for certain offenses of animal cruelty. The bill provides that a person commits a State Jail Felony, or a felony of the third degree if the person has previously been convicted two times of animal cruelty.

UNLAWFUL RESTRAINT:

This offense is now a Third Degree Felony if the victim is exposed to the risk of serious bodily injury, the victim is a public servant, or the restraint occurs while the actor is in custody.

NOTARY PUBLIC:

It is a Class A misdemeanor for a notary public to falsely state that he is a lawyer, solicit or accept compensation to prepare documents, or use the phrase “notario” or “notario publico” to advertise his services. It is a Third Degree Felony if this action is repeated.

INMATES AND CAPITAL ISSUES

If a convicted person’s case did not include DNA testing, this person may ask the convicting court to conduct DNA testing of evidence which was in the State’s possession but was not previously subjected to testing for the following reasons: DNA testing was not available, was available but not technologically capable of providing probative results, or the person was previously subjected to DNA testing but can be tested with newer modern techniques that may be more accurate than the previous test. The person is entitled to have counsel appointed if he is indigent. An inmate who prevails in the convicting court may also be released on bond pending the conclusion of court proceedings.

WRONGFUL IMPRISONMENT COMPENSATION:

A person is entitled to compensation if he has served a sentence in prison under the laws of this state and received a full pardon on the basis of innocence for the crime for which he was sentenced or has been granted relief on the basis of actual innocence of the crime for which the person was sentenced. The person has 3 years from the date of the pardon or the determination of innocence, and may either make an administrative application or sue the State. The compensation may not exceed $25,000 multiplied by the number of years served in prison if the time served is less than 20 years, or $500,000 if the time served is 20 years or more. This person is not entitled to compensation if he was also serving a sentence for another crime.

PROCEDURAL ISSUES

RACIAL PROFILING BY POLICE IS PROHIBITED:

Peace officers are prohibited from stopping or questioning a person based on race, ethnicity, or national origin rather than on the individual’s behavior or on information identifying the individual as having engaged in criminal activity. Peace officers who stop vehicles must report: A physical description of each person detained as a result of the stop whether the officer conducted a search as a result of the stop;
-Whether the person detained consented to the search;
-Whether the officer made an arrest as a result of the stop or the search.
However, the police will be exempt from the reporting requirements if they have video cameras and transmitter-activated equipment on their police cars.

INTERCEPTION OF WIRE, ORAL, OR ELECTRONIC COMMUNICATIONS:

Murder for hire and child pornography possession are offenses for which a judge may authorize interception of private communications. A new provision for emergency installation and use of an intercepting device is created for “immediate” life-threatening situations.

POLICE-INDUCED "WAIVERS" PROHIBITED:

A peace officer who seizes property may not induce any person to execute a document purporting to waive the person’s interest in the property.

OUT-OF-STATE AND FEDERALLY-OBTAINED CONFESSIONS:

A written, oral, or sign language statement of an accused made as a result of a custodial interrogation is admissible against the accused in a criminal proceeding in this state if: the statement was obtained in another state and was obtained in compliance with the laws of that state or this state, or if the statement was obtained by a federal law enforcement officer in this state or another state and was obtained in compliance with the laws of the United States.

TESTIMONY OF UNDERCOVER DRUG OPERATIVES:

The new law provides that a conviction cannot be had on the testimony of a person acting covertly on behalf of a law enforcement agency or under the color of law enforcement unless there is appropriate corroborating evidence. Corroboration is not sufficient if the corroboration only shows the commission of the offense.

UNCORROBORATED TESTIMONY IN SEXUAL ASSAULT CASES:

A conviction for sexual assault or aggravated sexual assault is supportable on the uncorroborated testimony of the victim if the victim informed any person, other than the defendant, of the alleged offense within one year after the date on which the offense is alleged to have occurred. In some cases, victims who by reason of age or physical or mental disease, defect, or injury are incapable of caring for themselves may be unable to report an alleged crime to another person. The new law exempts a person age 17 or younger, age 65 or older, or a person age 18 or older who by reason of age or physical or mental disease, defect, or injury was substantially unable to satisfy the person’s need for food, shelter, medical care, or protection from harm from the requirements that the victim inform another person of sexual assault or aggravated sexual assault within one year so that a conviction for such an offense is supportable on the uncorroborated testimony of the victim.

STATUTES OF LIMITATIONS:

There is now no statute of limitations for a sexual assault where during the investigation of the offense biological matter was collected and subjected to forensic DNA testing and the testing results show that the biological matter does not match the victim or any other person whose identity is readily ascertained.
No statute of limitations for a sexual assault for leaving the scene of an accident, if the accident resulted in the death of a person.

A 10-year statute of limitations for First Degree injury to a child, elderly individual, or disabled individual.

Under some circumstances, a person who has been arrested for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if the indictment or information has been dismissed or quashed.

TESTIMONY OF CHILDREN:

Children younger than 13 years of age may testify outside the presence of the accused in hearings and prosecutions for murder, capital murder, manslaughter, aggravated kidnapping, and aggravated robbery.

SEX OFFENDERS

SEX OFFENDER REGISTRATION:

If a person is convicted of a sex offense and has had a prior sex offense conviction, the sex offender registration requirements are increased for life.

SEX OFFENDER REGISTRATION EXEMPTION:

A sex offender may seek an exemption from registration if he has only a single reportable conviction or adjudication and the court finds that at the time of the offense, the defendant was between 13 and 19 years old and the conviction is based solely on the ages of the defendant and the victim. Sex offenders who receive probation must give a sample of their DNA to the Department of Public Safety.

FAIR DEFENSE ACT

FINES, COSTS, AND FEES:

Municipal courts and JP’s have the express power to waive fines and costs.

NONINDIGENTS SATISFYING FINES/COSTS :

A defendant placed in jail on account of failure to pay the fines and costs shall be discharged on a showing that the defendant is too poor to pay the fine and costs or has remained in jail a sufficient length of time to satisfy the fine and costs at the rate of not less than $100.00 for each period of time served [at least 8 hours but not more than 24 hours] as specified by the convicting court in the judgment in the case.

DEFENDANT’S RIGHTS:

A court may not threaten to arrest or incarcerate a person solely because the person requests the assistance of counsel.

A court may order a defendant to pay as “court costs” the legal services provided before or after conviction if the defendant is determined to have financial resources.

If a defendant cannot afford an attorney, he is entitled to counsel no later than the end of the first working day after the date on which the court or the courts’ designee receives the defendant’s request for appointment of counsel in counties with a population of 250,000 or more.

IF DEFENDANTS ARE RELEASED:

Defendants released from custody before counsel has been appointed are entitled to counsel at the first court appearance or when judicial proceedings have been initiated, whichever comes first.
New counsel can be appointed if the defendant is subsequently charged in the case with an offense different from the offense with which the defendant was initially charged; and good cause to appoint new counsel is stated on the record.

PERSONS ARRESTED ARE ENTITLED TO SEE A MAGISTRATE WITHIN 48 HOURS:

The officer who makes the arrest must ensure that the person arrested appears before the magistrate no later than 48 hours after the arrest.

MISDEMEANORS:

A person arrested without a warrant and who is detained in jail must be released on bond in an amount not to exceed $5,000.00 no later than 24 hours after the person’s arrest if the person was arrested for a misdemeanor, and if a magistrate has not determined whether probable cause exists to believe that the person committed the offense.

FELONIES:

A person arrested without a warrant and who is detained in jail must be released on bond, in an amount not to exceed $10,000, no later than 48 hours after the person’s arrest if the person was arrested for a felony and a magistrate has not determined whether probable cause exists to believe that the person committed the offense.

If the person is unable to obtain a surety for the bond or unable to deposit money in the amount of the bond, the person must be released on personal bond.  A prosecutor may file an application for postponement for release, upon which the magistrate may postpone the release of a person but not for more than 72 hours after the person’s arrest.