Legislative Pre-Filing Begins

I've heard it said, and recently (though I can't remember by whom) that the founders of our state had a twisted sense of humor when they decided our legislature would meet in "odd" years. Be that as it may, the 82^nd
Texas Legislature will begin session on January 11, 2011. Yesterday opened the date for "pre-fling" of bills under House Rule 8, sec. 7, and Senate Rule 7.04(a). I've looked through the list of 388 bills filed in yesterday to pull some of the more interesting criminal justice related concepts.

Immigration is a hot topic, and some such as Rep. Debbie Riddle have gone so far as to file an "Arizona Style" immigration plan that would create a new criminal offense for immigration. HB 17, HB 18, HB 21, HB 22, HB 176 (English as primary language), HB 177, and HB 183 have been submitted in the House regarding immigration. In the Senate, SB 124, SB 126, and SB 146 all address the issue, including the creation of a new offense for transported an undocumented individual.

Cell phone usage while driving seems to be a big player this session. In the House, HB 37, HB 93, HB 103, and HB 105 all address varying issues of the topic, from removing the "sign defense" for use of a cell phone in a school zone to making it an offense to use a cell phone while driving at all. The Senate has proposed SB 46 and SB 119 to deal with the topic. While I'm sure there is more to come, it seems clear that the use of a cell phone while driving, be it talking, texting, or emailing, is very much on the agenda this time around.

HB 163 and the accompanying Joint Resolution, HJR 35, seems interesting. It's an attempt, as short lived as I believe it will be, to abolish the Texas Court of Criminal Appeals and put us in line with the vast majority of the country in having a singular Supreme Court to be the ultimate decision maker for state criminal issues. While I don't expect this to get far, I have to wonder how much is based on the Sharon Keller hearings.

For those who are using K-2 as a substitute for marijuana, the legislature has the product clearly in their sights and may follow the lead of many local cities in prohibiting its use. HB 49 and HB 108 are an attempt to address the issue by adding (certain synthetic derivatives of marihuana" to the Texas Controlled Substances Act. I'm particularly interested in seeing the medical and scientific testimony on these bills and the reasoning behind the bans.

I find HB 96 to be somewhat troubling. With HB 96, the legislature seeks to establish an exemption to "the rule" in criminal trials, which would allow the prosecutor to pick a police officer or investigator to remain in the courtroom during the entirety of a trial. As the state chooses the order of its witnesses, that means the primary "investigator" could remain in the courtroom to hear all witness testimony before taking the stand to tell the jury what he/she learned and believes happened. I believe it is both unnecessary and casts additional doubt on a system that does not need it at this point.

HB 99 seeks to establish a new offense for Aggravated DWI, HB 101 would establish a new DPS run hotline for DWI reporting. HB 137 would establish a distinctive symbol on the driver's license for a person convicted of certain intoxication offenses. HB 189 looks like it would allow the judge to give a defendant deferred adjudication in certain circumstances, forbidden under current law.

Note that the deferred adjudication pardon has reappeared this term. Last session, the lege passed the bill that would allow the Governor to pardon an individual who has completed deferred adjudication. Under Texas law at present, pardon is not allowed because the conviction is not final, but expunction is not available because of the community supervision and other components. Gov. Perry vetoed the bill after the last session because the Constitutional Amendment that went with it failed to get done. This is our second shot at a good bill for the community. SB 144 is the bill to modify the CCP, SJR 9 is the resolution for a constitutional amendment.

There are various other provisions put forth in the Senate that would influence the integrity of convictions and the system that are worth talking about more in depth as the session draws closer. SB 121 is an attempt to clean up line up procedures to eliminate institutional bias and influence leading to false identification. SB 123 would require all custodial interrogations to be electronically recorded, thus lowering the risk of false confessions, which are a growing concern.

The voter ID bill is once again rearing its head as well. I don't, however, see any of the regular discovery bills requiring open file policies or some of the other issues rumored to be headed our way. Stay tuned.