The San Antonio Defender

DEFENDER THE SAN ANTONI0

A Publication of the San Antonio Criminal Defense Lawyers Association

VOL. XIV ISS. I | AUG./SEP. 2013

SACDLA salutes

Warren Wolf & John Ritenour 2013 CO-DEFENDERS OF THE YEAR

05

T H E

SA N

A NTON I O

D EF EN D E R

THE SAN ANTONIO DEFENDER

The San Antonio Criminal Defense Lawyers Association P.O. Box 831206 San Antonio, Texas 78283-1206 (210) 501-2916 | sacdla.com

VOL. XIV ISS. I AUG./SEP. 2013

OFFICERS Jorge Aristotelidis President Robert Featherston Vice President Warren Wolf Secretary Patricia Jay Treasurer Christopher Simpkins Editor, The Defender Trisha Morales Padia Executive Director

Features 06

I COULD HAVE DANCED ALL NIGHT LONG Warren Wolf

10

COURTROOM PRESENTATION WITH THE EXTRON ANNOTATOR Robert H. Featherstone

13

2013 LEGISLATIVE WRAP-UP Texas Criminal Justice Coalition

31

EARLY TERMINATION OF PROBATION WITH JUDICIAL CLEMENCY UNDER TCCP ARTICLE 42.12 Michael C. Gross & Jeffrey D. Weatherford

IMMEDIATE PAST PRESIDENTS Jay Norton Michael Gross Jeff Mulliner John “Bud” Ritenour Adam Kobs George Taylor Stephanie Stevens Jim Greenfield Michael S. Raign John A. Convery Ernest Acevedo, III Ronald P. Guyer Mark Stevens George Scharmen Cynthia Hujar-Orr

DIRECTORS EMERITUS Charles Butts Anthony Nicholas

BOARD OF DIRECTORS Anne Burnham Robert Barrera Edward A. Bartolomei Stephanie Boyd Philip Bozzo, Jr. John F. Carroll Kerrisa Chelkowski David Christian Andrew DelCueto Mario Del Prado Loraine Efron Joseph Esparza Don Flanary John J. Fox Paul Goeke Julie K. Hasdorff Nicholas “Nico” LaHood John Longoria Michael McCrum Pat Montgomery Jefferson Moore Joel Perez Robin Teague Aissa Strickland

Columns 02

HOME RUNS Adam Kobs

03

LETTER FROM THE EDITOR Christopher Simpkins

04

PRESIDENT'S MESSAGE Jorge Aristotelidis

05

SACDLA'S UPCOMING CLEs

38

OUT & ABOUT

Statements and opinions expressed in The Defender are those of the authors and are not necessarily those of SACDLA.

1

Homeruns

the Court. The case involved an issue

Jefferson Moore received a favorable

of procedural default in a death penalty

outcome by a board of three senior Navy

habeas corpus in federal court. Wolf and

officers who decided in an adversarial

Not just a home run, but a game seven

Ritenour are currently back in the Fifth

hearing that my client, a pilot with 19.5

win to take the World Series: On February

Circuit further litigating the remand.

years in the service, did not intentionally

Adam

Kobs

ingest marijuana. It took a day and a half

25, 2013 San Antonio attorney Warren Wolf presented oral argument to the

As a result of their efforts on Trevino

for the hearing and we showed that the

Supreme Court of the United States on

v. Thaler, Wolf and Ritenour were

Navy laboratory that tested his urine

behalf of petitioner Carlos Trevino in

recognized as joint recipients of the

sample had a lot of problems. There were

Trevino v. Thaler. On May 28, 2013, the

TCDLA Percy Foreman Lawyer of the

other issues too, but I think problems

Supreme Court agreed with Warren, and

Year Award for 2013. They were earlier

at the lab took up most of the hearing.

by a 5-4 vote, decided the case favorably

recognized as joint recipients of the

The Navy’s lawyer recalled their expert

to Mr. Trevino, and remanded the case to

SACDLA Kim Young Lawyer of the Year

witness on rebuttal and I have never seen

the U.S. Fifth Circuit Court of Appeals -

Award for the same effort. Mr. Wolf is

that before. I saved the client’s career

cause number 133 S.Ct. 1911 (2013). Mr.

a Board member and current Secretary

from a bogus drug test.

Wolf was assisted in litigating the case

of SACDLA, and a former Director of

in U. S. District Court, the Fifth Circuit

TCDLA. Mr. Ritenour is a Past President

Stephen Gordon and Allen Lowe got a

Court of Appeals, and the Supreme

of SACDLA and the current Webmaster

not guilty verdict on a DWI in CC 15 back

Court by second chair attorney John

and Listserv Administrator.

in March. It was actually a retrial. The first case ended up with a hung jury, with

“Bud” Ritenour, who was present at counsel table during oral argument. As

Arlene Gay and Rosie Reyes recently

a memento of their appearance before

secured a not guilty verdict on a two

the Supreme Court both received the

count indictment for criminal mischief

traditional white quill feather/pen from

and theft of copper in 227th.

5 to 1 in favor of acquittal.

THE SAN ANTONIO DEFENDER

Letter from the Editor As the new Editor-in-Chief for The Defender, I hope you are pleased to find the magazine has returned to your mailbox. Also, I hope that after you take a look around the magazine and read the content it will be evident that The Defender provides significant value to SACDLA by serving as the public face of our organization. In my brief tenure as Editor-in-Chief, I have learned first hand how much time and eort goes into making The Defender you now hold in your hands a reality. With this in mind we must be cognizant of the hard work and dedication that has been expended by Anne Burnham and many others in making The Defender, a magazine that it is able to educate, inform, as well as excite our membership, and it serves as a constant reminder of the intellectual capital possessed by SACDLA as an organization (just see the cover for example). In light of this, we must acknowledge that we owe a debt of gratitude to those who blazed the trail on which we travel and must help continue their work in making SACDLA the best local criminal defense lawyers association in Texas and beyond.

Before I let you go on and look around this issue there is one last person I need to mention, and one more topic I want to discuss. First, I would like to thank and acknowledge our Executive Director, Trisha Morales Padia, for her assistance and help in getting The Defender back into the hands of our members. Secondly, as Editorin-Chief, I want to remind all of you of the excellent opportunity that The Defender provides for you to become involved in the organization and get published in doing so! If you have written anything (or would like to write something) to be considered for publication in an upcoming issue of The Defender, or would like to discuss future articles, submissions, or how to become an Associate Editor, please contact me and let me know about your interest.

In closing, I would like to stress on behalf of the Board and myself that This is your organization, and there is great strength in numbers and collective purpose. You are never too young or old to contribute and if you believe that you have something to add to the magazine or organization, we want to hear from you.

Christopher Simpkins Editor-in-Chief, The San Antonio Defender chris@csimpkinslaw.com

3

President’s Message

membership in staying informed

John, “Bud” Ritenour, who was chiefly

about our upcoming organizational

responsible for writing the brief. Bud

events, and further down the line, the

has expressed how his eyes swelled up

In 2013, SACDLA has proudly continued

implementation of an online payment

after entering the Court for the first time.

its tradition and fundamental purpose of

option for membership dues and

For their efforts, the Texas Criminal

empowering and enlightening criminal

registration and payment for our CLE

Defense Lawyers Association (TCDLA),

practitioners from San Antonio, and

programs. Moreover, our members

at a ceremony held in San Antonio earlier

the surrounding areas. We are happy to

continue to enjoy access to our list-serve,

this year honored Warren and Bud as

announce the revival of our bi-monthly

and to a growing motion and brief bank,

Texas Co-Lawyers of the Year. Also, our

publication, The Defender. Our magazine

which includes valuable information on a

organization honored these two warriors

features issues discussing the latest

variety of legal issues, and is available to

in the same capacity for their hard work

decisions and trends in our profession,

our membership by accessing our website

and complete dedication to preserving

including legal treatises and motions

(http://sacdla.com/).

the rights of their client and their tireless

Jorge

Aristotelidis

advocacy, which ultimately culminated

provided by our finest local talent.

This year witnessed rare, historical

in their well deserved victory before the

Beginning in September, SACDLA

achievements by two local legal teams

Supreme Court of the United States.

will also resume its monthly CLE

that argued their cases before the

presentations on a variety of criminal

United States Supreme Court. In Trevino

For her part, Assistant Federal Public

defense topics. SACDLA remains

v. Thaler, Cause No. 11-10189, local

Defender Carolyn Fuentes provided

committed to provide our criminal

practitioner Warren Wolf successfully

excellent arguments in favor of Anthony

defense community with CLE

argued that Texas’s criminal appellate

James Kebodeaux. See United States v.

presentations by the best and brightest

system was poorly designed to allow a

Kebodeaux, Cause No. 12-418. The Court

practitioners from San Antonio, and

Capital Defendant to preserve a claim

held that Congress has the authority to

elsewhere in Texas. Another new

of ineffective assistance of counsel,

provide criminal penalties to a person

development that is noteworthy is the

winning over Justice Kennedy’s swing

who was convicted of a sex offense

creation of SACDLA’s own Facebook

vote to snatch a 5-4 decision. Warren was

under federal law and completed

page, which will serve to assist our

assisted by former SACDLA president

his criminal sentence before the Sex

THE SAN ANTONIO DEFENDER

Offender Registration and Notification Act (SORNA) became law. Despite coming up short in her efforts, this was not Carolyn’s first rodeo, as she previously convinced the high court that law enforcement officers were precluded, absent probable cause, from manipulating luggage to decipher its contents. See Bond v. United States, 529 U.S. 334 (2000). Carolyn was seconded by her office colleague, Assistant Federal Public

SACDLA'S UPCOMING CLEs

Defender John R. , “Jack” Carter, who for his part successfully argued before the Court in United States v. Lopez, 514 U.S. 549 (1995), 18 years ago. Considering that most lawyers go a lifetime without ever being granted certiorari, having two teams from San Antonio do so in the same year is a truly exceptional event.

How good are San Antonio criminal defense lawyers? Check out the content in this magazine and take a look at the homeruns section to find out.

The monthly CLE luncheons are returning in September! Stay tuned for the details.

This years Nuts & Bolts seminar will be held on Friday, November the 1st. Please help SACDLA and spread the word to all newly licensed lawyers and other interested parties.

Also, do not forget about SACDLA’s bi-monthly Trial Strategies lunch meetings, which are held at Liberty Bar on the first and third Friday’s of each month.

San Antonio Riverwalk photo by Mike Sherman.

5

I Could Have Danced All Night Long

had shut down but the nine Justices of

help from everyone I knew in the habeas

the Supreme Court weathered the storm

community. I really wanted to do the oral

and came in to work that morning. They

argument but to get ready meant a lot of

granted only 4 writs and turned away

preparation.

several hundred others.

Warren

Where others getting ready for oral I was standing at the bench in the 436th

argument might endure two or three

District Court, a juvenile court. My cell

moots (practice oral arguments) I wound

phone vibrated. I looked at it and the

up doing ELEVEN! I was determined to

In reflecting on my experience before

caller was Dick Burr. Dick is a death

make this work.

the United States Supreme Court 2 books

penalty and habeas resource attorney

come to mind; The Once and Future King

who has been helping me with Carlos’

Professor David Dow at the University

by T. H. White and Pygmalion by George

case ever since I had been appointed in

of Houston Law School hosted the first

Bernard Shaw. Both books came to life on

2002.

and the eighth. I did two at Texas Tech

Wolf

Law School in Lubbock thanks to Prof. Pat

the Broadway stage in musicals: Camelot As soon as the hearing was over I called.

Metze. One was held in Austin before the

Dick told me that Cert had been granted.

death penalty clinical professors at the

The story of young King Arthur as

I felt as if I had pulled the sword out of

University of Texas. They combined with

he pulled the sword out of the stone

the stone.

Professor Dow to write an amicus brief

and My Fair Lady.

can be compared to getting a Writ of Certiorari granted. Ilater found out

YOU DON’T DO THIS ALONE

(friend of the court). Two were done in San Antonio-one at at St. Mary's School of Law, my alma matter, and the other

that approximately 80 out of 8,000 are Many people helped along the way. Bud

before members of the Western District

Ritenour has been my co-counsel for the

Federal Defenders Office in San Antonio

As far as getting ready for oral argument,

past 6 years replacing Alan Futrell. Bud

(which has produced two successful first-

I was like Eliza Doolittle learning every

was chiefly responsible for writing the

time oral advocates before the Supreme

aspect of Supreme Court advocacy just as

Cert petition. Alan recruited others to

Court, Carolyn Fuentes and Jack Carter).

Eliza prepared to go to the ball.

write the original successor. I had become

An added bonus was a guest appearance

a mitigation investigator after we were

by Professor Robert Bartels of Arizona

denied assistance from the Court.

State University who was the attorney

granted annually. MAGICAL!

I found out that Cert was granted on

who argued the Martinez case before

October 29, 2011 the day Hurricane Sandy crippled the East Coast. Washington

I cast a wide net seeking guidance and

the Supreme Court. Wanting to gain

THE SAN ANTONIO DEFENDER

We agreed that it would be helpful for the State Bar to reassert its desire to improve the quality of capital defense as it set out in the Texas Guide for Capital Defense. Buck made it happen within the short time frame for the amicus brief to be filed. Justices Kennedy and Breyer favorably referred to the State Bar’s brief as least four times during oral argument.

THE PRESSURE FROM WITHOUT AND THE STRENGTH FROM WITHIN Supreme Court building photo by Eric E. Johnson.

I really wanted to do this oral argument.

I had many people from around the

Seth Waxman. Seth, a partner with the

country who said I should defer to Seth

able to get Prof. Andrea Lyon at DePaul

Washington D.C. based firm Wilmer Hale

for all of the obvious reasons. In the

University in Chicago to host a moot as

who had been the U. S. Solicitor General

final analysis I have a lot to thank Seth

well. Bud accompanied me to every moot

during the Clinton administration. He

for. I told him how I felt about doing the

except the one in Chicago.

agreed to help Bud and me write the

argument and he replied “Everybody has

the point of view of non-Texans, I was

brief and reply and put together the

to have his first…” and we never looked

Not only did I endure the eleven moots

joint appendix. Just an aside: Everything

back.

but we videotaped them as well. This

in the Supreme Court is governed by

allowed me to not only listen time to

special procedural rules—the forms of

I was the Eagle Scout who had to learn

each moot time and again, but also as

the brief (booklet form), the number of

how to swim to become a first class. In

Jack Carter suggested, I could turn off

words, the size of the font, and on and

the 60’s there were no options as there

the sound and watch myself speaking to

on. The number of people and man/

are now and every Eagle Scout had to

see if I had any annoying idiosyncratic

woman hours Seth contributed to this

have Swimming and Lifesaving merit

gestures that I needed to learn to control.

effort is staggering. Others were called in

badges. I gave up a trip cross country

to help including Prof. Tony Amsterdam

with my Uncle Norm (the first attorney

Many offers started to pour in from

at NYU Law School whose insight into the

in the family, my mother’s younger

Supreme Court “specialists”. Some

Justices idiosyncrasies was invaluable in

brother who I looked up to as role model

former briefing attorneys. All from big

shaping the brief and the oral argument.

in many ways). I earned my Eagle Scout

firms with partners who argue before

badge overcoming many obstacles and I

the Supreme Court on a regular basis. I

Another extremely important person

attribute that to perseverance, which is

resisted their entry into the case.

in this effort was then President of the

a lesson, I have drawn upon many times

State Bar of Texas Buck Files. It’s beyond

thereafter.

A huge addition to the team came

current memory since a criminal defense

through Dick Burr’s acquaintance with

attorney had last been state bar president.

Norm had attended the prestigious Bronx 7

I Could Have Danced All Night Long

High School of Science. It is a public

Hoffman) dad’s friend advised in the

high school that requires an entrance

movie “The Graduate” “Plastics!” I am

to law school in the D.C. area and not

examination. Most of the entering class

lucky to have good credit. But I knew that

clerking for a Supreme Court Justice as

came from better neighborhoods than

the experience would be priceless.

my opponent had, I needed to be creative

mine. It was like my competition came

Not living in the D.C. area, not going

in my preparation.

from Alamo Heights and I came from

As the time grew closer the pressures

a less affluent part of town. In order

to give up the oral argument became

Eleven moots before former briefing

to prepare for the exam I studied the

stronger. But my determination to make

attorneys, some who had appeared

“Increase Your Word Power” feature

this happen became more enhanced.

before the Court and others who were

at the back the Reader’s Digests my

students of the Supreme Court aided my

mother had accumulated. It paid off

The people who knew me best, local

and I was one of three from my junior

lawyers including Gerry Goldstein, Stan

high school to join the entering class of

Schneider, Mark Stevens and Mike Gross

In addition, I listened to over 100

approximately three hundred.

among countless others to a man, and a

hours of oral arguments especially the

woman, all advised me to keep the case. I

Martinez v. Ryan case that ours was so

was not going to give it up.

inextricably linked. (Oyez.com now

Perseverance has played a big role in my avocations as well. I started bike riding in

preparation.

Scotus.com is a wonderful website.)

1989. Soon I had built up my endurance

The circle of people helping on the case,

I listened to Justice Abe Fortas who

to do century (100-mile bike rides for

at one time literally numbered into the

argued Gideon v. Wainwright and watched

charities such as MS, the Lung Assn. , the

hundreds now became a very tight knit

the Henry Fonda movie version just to

Heart Assn. and the Lance Armstrong

group. Bud Ritenour; co-counsel, advisor,

see the courtroom scene over and over

Foundation. The difference between

deputy and trusted friend never wavered

again. I watched a CNN documentary

a metric century (100 kilometers/62.5

in his support. My wife, Teresa (who had

DVD I had bought on a visit to the Court

miles) and a full century ride (100 miles)

sacrificed enormously in many respects

the previous August when I attended

is the mental toughness, which I would

during this ordeal) and my daughter

a Habeas seminar in D.C. Not only did

have to draw upon in this upcoming

Robin who grew up watching her dad

the DVD show the courtroom but also

ordeal.

defend numerous clients stood fast and

it explained the history of the Court. It

were an unfaltering source of support.

also contained interviews with many of

TOTAL COMMITMENT

the Justices including Justice Clarence Most importantly, I maintained that

Thomas, whose voice no one would hear

When I decided to make this effort

determination that got me into Bronx

(as always) during the oral argument. It

I realized that it would take a lot of

Science, finished many 100-mile bike

discussed not only the oral argument but

sacrifice. I sent a “vacation letter” to all of

rides and helped me pass my Lifesaving

also the process how Cert is granted and

the court’s suspending my availability to

merit badge to become an Eagle Scout.

how cases are decided. It actually showed

take any new court appointments.

Financially, it was not going to be easy.

BECOMING FAMILIAR WITH THE COURT

Bud and I have still not been paid for

the room where only the nine Justices sit to decide the cases and NO ONE else is permitted entry. One interesting note was that when the justices are discussing

our work in the 5th Circuit to get the

How do you prepare for your first oral

the cases, the order follows seniority, and

case to this point. As Benjamin’s (Dustin

argument before the Supreme Court?

no one is allowed to speak a second time

THE SAN ANTONIO DEFENDER

voice their opinions.

THE DAY BEFORE (February 24, 2013)

case and my name.

I read biographies about all of the

After a moot at the Supreme Court

I opened in the obligatory fashion,

justices—where they went to school,

Institute at Georgetown University on

“Mr. Chief Justice and may it please

where they grew up, in what part of the

Friday and two more at the office of

the Court”. In an hour it was over—30

country they were raised, even who were

Wilmer Hale on Saturday Bud and I agreed minutes a side.

also Eagle Scouts.

Ineeded to just relax. I thought about

until all nine have had an opportunity to

basketball players such as Kobe Bryant

ready, Chief Justice Roberts called the

CONCLUSION

I researched the profile of my opponents;

and Tim Duncan before a big basketball

that changed at the last minute. I read

game. They always had ear buds inserted

Practicing now for 37 years I have been a

about Supreme Court procedure, the

listening to music. Teresa and Robin

trial lawyer, argued cases before the 4th

history of oral argument, and techniques

vacated the hotel room and went to visit

Judicial District Court of Appeals in San

to better present oral argument. I read

Arlington. I opted to remain in the room.

Antonio, The Texas Court of Criminal

books by the Justices, including Justice

I went to my Pandora app and listened to

Appeals in Austin, the 5th Circuit Court

Scalia as well as books by Professors Dow

show tunes, which included My Fair Lady

of Appeals in New Orleans and now

and Lyon.

and Camelot. Teresa and Robin brought me

before the United States Supreme Court.

something light to eat and I went to bed

It was a dream come true.

A great mental and moral boost came the previous August when one of the Supreme Court clerks, Mrs. Tyce, gave

around 9 p.m.

FEBRUARY 25, 2013

me a special tour after my wife and I

I have returned to my practice back in San Antonio. But for one brief shining moment I was in Camelot. I could have

took the public tour. She took us into the

We got up early and went downstairs for

courtroom. Not just the area where the

breakfast. We were scheduled to be the

general public sits but inside the bar. She

second argument of the day beginning at

said, “This is where you will be sitting.”

11 a.m. (I did not want to run out of steam

She grabbed me by the arm and placed

before I began).

danced all night.

me at the lectern and said, “This is where you will be standing. Look how close you

At 9 a.m. all of the lawyers met with

are to the Chief Justice.” How prophetic.

the Chief Clerk General Suter. He put

Mind you all of this occurred before Cert

us at ease. He reminded us for some

was granted.

basic Supreme Court protocol. We then proceeded into the courtroom.

When we returned in February for argument she met us again and this time

At 10 a.m. I got a chance to witness in

gave Bud and me (for a second time) an

person my first Supreme Court argument.

opportunity to stand at the lectern (it’s

At 11 a.m. , sitting at the right hand of

not a podium).

Seth Waxman, with Bud and Catherine Carroll, one of Seth’s attorneys who was so instrumental in getting the case and me 9

Courtroom Presentation with the Extron Annotator

Robert H.

Featherstone

William Shakespeare wrote: “All

to annotate exhibits. Attorney’s can

the World’s a stage, and all the men

attach their laptop computers to the

and women merely players:…” The

presentation system (with their own

Courtroom IS a stage. Some times even

cables) from a pop up console located

your shoe laces matter. In a close case, the

at the attorney desks. Both VGA/audio

side that looks more professional, that

and HDMI inputs are available. The

appears to know their case better, can

presentation system is controlled by the

present the evidence to the jury in a clear

judge via a touchscreen panel located

and concise manner, has the best

at the judge’s desk. A smaller auxiliary

probability of prevailing.

unit is located at the bailiff’s station.

These touchscreen panels control all

Most criminal defense practitioners

presentation within the courtroom; video

know that Bexar County has updated its

teleconferencing, powerpoint/keynote,

courtrooms on the Fourth floor of the

video clips, audio files, paper and 3d

Criminal Justice Center. No longer do

objects via Elmo presenter. The judge also

you have to haul in a computer projector

has the capability of generating white

and a screen for courtroom use. A large

noise through the juror’s speakers during

flat panel display is now located above

bench conferences.

the Judge’s bench and at the juror’s seats are installed 19” display panels. Video

The VGA/audio inputs located at trial

cameras are mounted throughout the

counsels desks is stable and there

courtroom for video teleconferencing

are no display issues using either

and security monitoring. The two

windows or Apple products. The HDMI

attorney desks and the witness box have

implementation still has some bugs in it,

ELO touchscreen displays installed so

especially with Apple products. If you

the attorneys/witnesses can see what

plan on using a ipad or any other device

is being published to the jurors and

with a HDMI interface, take it to the

THE SAN ANTONIO DEFENDER

courtroom and test it prior to trial!

EXTRON ANNOTATOR Now, to the primary purpose of this short paper! The courtroom presentation system also has the capability to annotate or draw on anything that is being presented through the system.

If a witness or attorney wants to highlight some text, circle an object on a photograph, draw a straight line on a DWI video, they can do so using the ELO touchscreen display located at their desks. The annotation can be done with your finger or you can use a Elo capable stylus that can be purchasedat OďŹƒceDepot/OďŹƒceMax/Staples (around $17.00).

Extron Electronics makes the annotator.

They have a very simple tutorial at their web site (http://goo.gl/zRFv8M). I highly recommend you check this out.

The annotator has two menus for user interface, which are illustrated on this page.

11

Courtroom Presentation with the Extron Annotator

IMAGES OF THE ANNTATOR

A defense attorney always wants to

you must be familiar with the Extron

appear polished in front of a jury. You

Annotator for use during the course of

With a little practice any attorney can

are going to have to use this system

the trial.

learn to use this system. The prosecutors

during a trial in the new courtrooms.

know how to use it, you should visit a

Even if you do not use powerpoint/

courtroom that has the system installed

keynote, some evidence in the case will be

(210) 279-3711

and play with it prior to doing any trial!

presented through this new system and

robert@rhflaw.net | www.rhflaw.net

Law Office of Robert H. Featherston, P.C.

Presentation System Attorney Interface

Screenshot of Extron Annotator

Large Screen Display above Judge’s Desk

Judge’s Touchscreen Control Panel

New Bexar County Courtroom

THE SAN ANTONIO DEFENDER

Successful Juvenile and Criminal Justice Bills & Funding Provisions 2013 Texas Legislative Session

by THE TEXAS CRIMINAL JUSTICE COALITION

SOLUTIONS FOR YOUTH JUSTICE

• HB 528 (Turner, Sylvester; Giddings; Miles; Wu) [Sponsor: Whitmire]: Relating to the restriction of access to the records

• HB 144 (Raymond) [Sponsor: Nelson]: Relating to a mental

and files of a child charged with or convicted of certain

examination of a child subject to the juvenile justice system.

fine-only misdemeanor offenses. While most juvenile

Under this bill, juvenile courts will be permitted, at their own

offenses in Texas are handled by the juvenile justice system,

discretion or at the request of a parent, to order a child to be

where records remain confidential and undisclosed to the

examined by an expert to determine whether the child suffers

public, children charged with fine only misdemeanors are

from chemical dependency. Furthermore, juvenile probation

adjudicated in adult criminal courts, where records are open

departments will be required to refer any child found to

to the public until the child is convicted. This means that

suffer from chemical dependency to an agency or provider

youth charged but not convicted of such minor offenses have

for further evaluation and services. This bill will help juvenile

records open to the public. This bill closes the gap in Texas law

system practitioners more quickly identify and treat youth

and makes all juvenile records confi dential as they relate to

with substance abuse issues. Effective September 1, 2013.

fine-only misdemeanor offenses, regardless of whether the youth was ultimately convicted. It is important to ensure that

• HB 232 (Guillen) [Sponsor: Zaffirini]: Relating to allowing

youth who have atoned for their offenses and gotten back on

certain minors convicted of certain alcohol offenses to perform

the right path have a fair shot at success. Effective January 1,

community service instead of attending an alcohol awareness

2014.

program. This bill allows minors who are ordered by a court in a small county to participate in an alcohol awareness

• HB 1318 (Turner, Sylvester) [Sponsor: Whitmire]: Relating to

program to take the course online if the Department of

the appointment of counsel to represent certain youths and

State Health Services (DSHS) approves such courses, and

indigent defendants. Currently, too many youth entitled to

if the county in which the minor resides does not provide

appointed counsel are not represented by prepared counsel at

an alcohol awareness program. Furthermore, in exchange

their first detention hearing. As a result, Texas is needlessly

for participation in the alcohol awareness program, HB 232

keeping thousands of low-risk youth in pre-adjudication

allows youth to complete at least 8 hours of community

secure detention, at a cost of $216 per day per youth. HB 1318

service related to alcohol abuse prevention or treatment, in

requires counsel to be appointed for qualifying youth before

addition to the community service hours imposed by the

the first detention hearing; because these attorneys must

court. DSHS must create a list of community services related

inevitably be appointed at some time prior to trial, this bill

to alcohol abuse prevention and treatment for each county

will not create any additional costs. In fact, by improving the

in which a court may order such services. Effective Immediately

efficiency of detention decisions, HB 1318 will create millions

(June 2013).

of dollars in savings statewide: Williamson County, for example, appoints counsel for youth before the first detention 13

Successful Juvenile and Criminal Justice Bills & Funding Provisions 2013 Texas Legislative Session

hearing and has realized hundreds of thousands of dollars

• HB 2719 (Guillen) [Sponsor: Rodríguez]: Relating to collecting

in savings. Effective September 1, 2013; Sections 1 and 6 effective

and reporting information concerning inmates who have

September 1, 2014.

been in the conservatorship of a state agency responsible for providing child protective services and concerning inmate

Note: For HB 1318 provisions relating to adult defense, see

parole, reentry, and integration. Under this bill, the Texas

page 5.

Department of Criminal Justice will inquire about past foster care system involvement during the inmate intake process

• HB 1479 (Villarreal) [Sponsor: Van de Putte]: Relating to

and annually summarize that statistical information in a

establishing a committee in certain counties to recommend a

report to the Governor and Legislature. Many children in the

uniform truancy policy. School districts use various methods

Texas foster care system have experienced significant trauma,

to handle truancy; in large counties with more than one

and data collection is the first step in identifying gaps in

jurisdiction, the result is a fractured disciplinary system.

support for such youth, so as to ultimately develop resources

Given that truancy limits educational opportunities,

and programs to provide foster youth with the skills they

increases the likelihood ofother delinquent behavior, and

will need to avoid costly future justice system involvement.

reduces school district funding from the state, it must be

Effective September 1, 2013.

addressed in a more effective manner.

Note: For HB 2719 provisions relating to adult reentry, see HB 1479 creates a permissive, uniform truancy policy

page 10.

in larger counties, specifically via a committee that will implement the policy. The committee will consist of local

• HB 2733 (White) [Sponsor: Whitmire]: Relating to the

and state leadership, including judicial members, school

administration and operation of the Texas Juvenile Justice

representatives, and a district attorney. The committee will

Department. HB 2733 allows the Texas Juvenile Justice

develop policy recommendations no later than September 1,

Department (TJJD) to obtain criminal records from the

2014, with adherence to recommendations only voluntary. HB

Department of Public Safety for, among others, a child in

1479 will expire on January 1, 2016. Effective Immediately (June

TJJD’s custody, and a person requesting visitation to a TJJD

2013).

facility. However, this bill prohibits TJJD from denying visitation by an immediate family member solely because of

• HB 1952 (Thompson, Senfronia) [Sponsor: Van de Putte]:

the existence of a criminal background.

Relating to professional development training for certain public school personnel regarding student disciplinary

Additionally, this bill changes the timing of the report

procedures. To correct disparities in disciplinary practices

submitted by TJJD to the state’s Legislative Budget Board

among school districts, HB 1952 requires the principal or

about the effectiveness of juvenile programs, from

other appropriate administrator of a campus to attend

oddnumbered years to even-numbered years, so that the

professional development training relating to the distinction

Legislature can work during the interim on potential bills that

between a discretionary discipline management technique

could improve the quality of these programs.

used by a principal, and the discretionary authority of a

The bill also removes the three-term limit for the

teacher to remove a disruptive student. This training is

independent ombudsman who monitors the state secure

required once every three school years and can be done

juvenile facilities and protects the rights and safety of youth

remotely. Effective Immediately (June 2013).

incarcerated in those facilities; this will allow continuity and a maintained level of trust between that Office and confined

THE SAN ANTONIO DEFENDER

youth. Effective September 1, 2013.

outcomes in both the short and long term. Effective September 1, 2013.

• HB 2862 (McClendon) [Sponsor: West]: Relating to procedures related to juvenile cases. HB 2862 extends current regulations

• SB 393 (West) [Sponsor: Lewis; Thompson, Senfronia]:

and requirements for short-term secure facilities to non-

Relating to the criminal procedures related to children who

secure facilities. Among other things, this includes protection

commit certain Class C misdemeanors. This bill allows a

from invasive searches by non-professionals; a prohibition

youth defendant with a minor, fine-only offense to perform

on depriving youth of food, clothing, or sleep as punishment;

community service or receive tutoring rather than pay court-

and the right to programming. This extension of protections

related costs or fines – thus still maintaining a strict level of

will ensure that youth being held in a non-secure facility

accountability. Alternatively, this bill allows a judge to simply

are afforded the same rights and safeguards as youth being

waive the defendant’s payment of fines due to childhood, if

detained in a short-term secure facility.

such fines are deemed unnecessary.

Separately, HB 2862 permits juvenile courts to retain

SB 393 also allows certain courts, schools, or probation

jurisdiction of a juvenile facing a waiver or transfer to an

departments to provide at-risk youth and system involved

adult criminal court until that proceeding is complete.

youth with case managers and prevention and intervention

Furthermore, HB 2862 requires the Texas Juvenile Justice

services, to help them target the root causes of their

Department to collect and make the following data available

misbehavior and improve their likelihood of graduating.

to the public: The number of placements in a disciplinary

As opposed to receiving a Class C misdemeanor citation for

seclusion lasting at least 90 minutes but less than 24 hours,

certain conduct, students will have the opportunity to address

the number of placements in disciplinary seclusion lasting

their misbehavior through counseling and avoid justice

24 hours or more but less than 48 hours, and the number of

system involvement. Furthermore, if the county has a first-

placements in disciplinary seclusion lasting 48 hours or more.

offender program, youth with a Class C misdemeanor (other

This takes an important step to protect youth in custody,

than a traffic citation) may participate and have their case

through data collection that will ultimately help determine

dismissed upon successful completion of such a program.

if facilities are using seclusions inappropriately. Effective September 1, 2013.

Separately, SB 393 allows school districts to alternatively

Note: This bill also allows military access to unrestricted

sanction youth who engage in disorderly conduct. Rather

juvenile records and permits confinement of a witness.

than receiving citations for misbehavior, youth may be subject to progressive sanctions, including a warning, a

• SB 92 (Van de Putte) [Sponsor: Thompson, Senfronia]:

behavioral contract, school-based community service, or

Relating to the designation of a juvenile court and a program

counseling or other services aimed at addressing behavioral

for certain juveniles who may be the victims of human

problems. If a school district does not comply with these

trafficking. This bill allows courts to divert identified victims

requirements and a citation is issued without providing

of prostitution from the justice system and place them in a

a warning or progressive sanction, the citation will be

specialized “trafficked persons” treatment program, then

dismissed.

dismiss the case and/or seal a victim’s record upon successful completion of the program. An appropriate, effective, and

Finally, SB 393 restricts certain individuals’ or agencies’

structured support system will improve the lives of as many

access to records of youth who received a dismissal after a

as 3,000 young victims in Texas, positively impacting their

deferred disposition for a fine-only offense. It is important 15

Successful Juvenile and Criminal Justice Bills & Funding Provisions 2013 Texas Legislative Session

to ensure that youth who have atoned for their offenses and

than a state juvenile facility. Travis County must develop

gotten back on the right path have a fair shot at success.

a comprehensive plan for each confined youth in the pilot

Effective September 1, 2013.

program to ensure a successful reentry to the community.

Effective December 1, 2013.

• SB 394 (West) [Sponsor: Herrero; Wu]: Relating to restricting access to records of children convicted of or receiving deferred

• SB 670 (Whitmire) [Sponsor: Turner, Sylvester]: Relating to

disposition for certain fine-only misdemeanors. While most

the copying of certain records and files relating to a child who

juvenile offenses in Texas are handled by the juvenile justice

is a party to a juvenile proceeding. This bill allows juvenile

system, where records remain confidential and undisclosed

defendants and their attorneys to make copies of records

to the public, children charged with fine-only misdemeanors

relating to their criminal proceedings, rather than having

are adjudicated in adult criminal courts, where records are

to take handwritten notes. This will improve accuracy and

open to the public until the child is convicted. This means

increase the efficiency of the adversarial process, saving

that youth charged but not convicted of such minor offenses

valuable time and resources. Effective Immediately (May 2013).

– for example, youth who have received deferred prosecution – have records that are open to the public. SB 394 restricts

• SB 833 (Davis) [Sponsor: Dukes]: Relating to the collection of

certain individuals’ or agencies’ access to records of youth

data through the Public Education Information Management

who received a dismissal after a deferred disposition for a

System (PEIMS) as to the foster care status of public school

fine-only offense. It is important to ensure that youth who

students. SB 833 requires the Texas Education Agency to use

have atoned for their offenses and gotten back on the right

the Public Education Information Management System to

path have a fair shot at success. Effective September 1, 2013.

gather information on public school students in foster care, which can help to identify gaps in performance among such

• SB 395 (West) [Sponsor: Herrero]: Relating to fines and court costs imposed on a child in a criminal case. This bill allows a

youth, and allow for longer-term assistance for them. Effective Immediately (June 2013).

youth defendant with a minor, fine-only offense to perform community service or receive tutoring rather than pay court-

• SB 914 (Lucio) [Sponsor: Ratliff ]: Relating to a behavior

related costs or fines – thus still maintaining a strict level of

improvement plan or a behavioral intervention plan adopted

accountability. Alternatively, this bill allows a judge to simply

for certain students with an individualized education program.

waive the defendant’s payment of fines due to childhood, if

Currently, some students are enrolled in special education

such fines are deemed unnecessary. Effective September 1, 2013.

programs based on their individual needs. When a student is enrolled in such programs, an admission, review, and

• SB 511 (Whitmire) [Sponsor: Workman]: Relating to the

dismissal commitee is responsible for creating that youth’s

commitment of certain juveniles to local postadjudication

individualized education program. If the youth later has

secure correctional facilities in certain counties and to the

behavioral problems, the school district employs behavioral

release under supervision of those juveniles. This bill creates

specialists who develop a separate behavioral improvement

a 5-year youth sentencing pilot program in Travis County,

plan or behavioral intervention plan for the student. This

and it specifically impacts determinate sentences, which are

system has inadvertently led to the penalization of special

served first in the juvenile justice system, then completed in

needs students for their behavior, given that educators are

the adult justice system. Under the program, Travis County

unaware of the behavior improvement or intervention plan.

juvenile judges will be able to sentence youth to a determinate sentence but place them in a local juvenile facility, rather

SB 914 addresses this problem by allowing the initial

THE SAN ANTONIO DEFENDER

admission, review, and dismissal committee to approve and

placements in disciplinary seclusion lasting 48 hours or more.

incorporate the components of the behavioral improvement

This takes an important step to protect youth in custody,

plan into the individualized education programs. Doing so

through data collection that will ultimately help determine

will more holistically address students’ needs and reduce the

if facilities are using seclusions inappropriately. Effective

likelihood of unnecessary punishment. Effective Immediately

September 1, 2013.

(June 2013).

• SB 1114 (Whitmire; West) [Sponsor: Herrero]: Relating to the • SB 1003 (Carona) [Sponsor: Guillen]: Relating to a review of and report regarding the use of adult and juvenile

prosecution of certain misdemeanor offenses committed by children and to school district law enforcement. SB 1114

administrative segregation in facilities in this state. The overuse

requires a police officer who issues a citation for delinquent

of seclusions (solitary confinements) is a serious problem

conduct on school property or on a school vehicle (e.g. , a

in some secure juvenile facilities in Texas, especially for

bus) to submit to the court not only the police report, but

traumatized youth or youth with mental health concerns.

also a witness statement and a victim statement, if any. This

This bill requires an independent third party to work with

provision applies to delinquent conduct among children at

Texas’ criminal and juvenile justice agencies to conduct a

least 12 years old, and a case cannot proceed to trial if the

comprehensive evaluation of policies and practices related to

officer failed to submit available statements. SB 1114 also

administrative segregation and solitary confinement of youth

ensures that a child under the age of 12 may not be issued

and adults. This third party will provide outside expertise on

a citation for delinquent conduct on school grounds or on a

best practices related to isolation and solitary confinement

school vehicle.

and will submit a report of its findings and recommendations to the Legislature by December 31, 2014. Among other

Separately, this bill eliminates disruption of certain school-

things, the third party will examine access to transitional

related activities by a primary or secondary school student as

and rehabilitative programs and services; release procedures;

a criminal offense, and it prohibits the issuance of an arrest

statistical data related to the number of individuals in

warrant for a Class C misdemeanor if the person committed

solitary confinement, including those with mental health

the offense before his or her 17th birthday.

issues and the average length of time spent in isolation; and the rate of recidivism among individuals who were confined

Finally, this bill adds children accused of committing

in administrative segregation. This bill will help improve

Class C misdemeanors to the class of individuals eligible

segregation and seclusion policies and practices, identify

to participate in county first-offender programs, which

strategies to reduce the use of segregation, improve access to

may require restitution and/or programming. If a child

rehabilitative assistance for isolated individuals who will one

successfully completes the program, the case will be closed

day be released to the community (thus decreasing recidivism

and will not be referred to the juvenile court. Effective

in the long term), and eliminate wasteful spending.

September 1, 2013.

Furthermore, SB 1003 requires the Texas Juvenile Justice

• SB 1356 (Van de Putte) [Sponsor: McClendon; Riddle]: Relating

Department to collect and make the following data available

to human trafficking and its victims and the care of juveniles

to the public: The number of placements in a disciplinary

who have experienced traumatic events. A youth’s past

seclusion lasting at least 90 minutes but less than 24 hours,

experience with trauma is the largest predictor of his or her

the number of placements in disciplinary seclusion lasting

assignment to increasingly serious secure placements. This

24 hours or more but less than 48 hours, and the number of

bill requires staff who work with youth in the juvenile justice 17

Successful Juvenile and Criminal Justice Bills & Funding Provisions 2013 Texas Legislative Session

system to receive specialized training in trauma-informed

Department of Public Safety and to the FBI, through which

care. Such training will equip staff with the skills to work

employers, housing providers, and others can access the

successfully with youth who have experienced past traumatic

prints.

events, thereby helping to build a sustainable, positive corrections environment that increases safety for youth and

Under this bill, the Texas Juvenile Justice Department will

staff and reduces future system involvement.

convene an advisory panel to determine whether Texas can safely stop fingerprinting youth referred to the juvenile

SB 1356 also requires juvenile probation departments

justice system for low-level offenses; this panel will include

to evaluate best practices associated with reducing sex

prosecutors, law enforcement, probation officers, and

trafficking, particularly as it pertains to identifying and

others, thus ensuring broad stakeholder input. No later than

assessing victims. Ultimately, a set of best practices will give

December 1, 2014, the panel must submit a report to the Texas

departments real tools and strategies to address victims’

Juvenile Justice Board detailing the plans to implement their

specialized needs.

task.

Finally, SB 1356 requires the Crime Stoppers Advisory

Ultimately, if Texas does not fingerprint youth for low-level

Council to create a program that encourages individuals to

offenses, no criminal record will be created. This may be the

report criminal activity related to human trafficking and

most effective way to prevent these records from harming

financially reward individuals who report such crimes.

youth who have atoned for the low-level offense and have

Effective September 1, 2013.

gotten their lives back on the right path. Effective Immediately (June 2013).

• SB 1419 (West) [Sponsor: Lewis]: Relating to funding for juvenile case managers through certain court costs and to the establishment of the truancy prevention and diversion fund.

SOLUTIONS FOR PRETRIAL, DEFENSE & INNOCENCE

SB 1419 authorizes juvenile case managers to intervene and provide assistance to youth with Class C misdemeanors,

• HB 577 (Guillen) [Sponsor: Ellis]: Relating to the representation

including “failure to attend school” offenses, prior to the

of certain applicants for writs of habeas corpus in cases

case being filed. These case managers can be used in a county

involving the death penalty. Under previous law, all writs were

court, in a justice court, in a municipal court, by a school

delegated to the Office of Capital Writs. This bill clarifi es that

district, by a juvenile probation department, or by any other

only capital writs should be delegated to that Office. Effective

appropriate governmental entity. Payments for these services

Immediately (June 2013).

will go into a dedicated fund to be utilized solely for truancy prevention and intervention. Effective September 1, 2013.

• HB 1318 (Turner, Sylvester) [Sponsor: Whitmire]: Relating to the appointment of counsel to represent certain youths

• SB 1769 (Rodríguez) [Sponsor: White]: Relating to the creation

and indigent defendants. This bill requires court-appointed

of an advisory committee to examine the fingerprinting

attorneys to annually report information on their caseloads

practices of juvenile probation departments. Contact with

to the county in which they practice; counties, in turn, will

the juvenile justice system continues to create long-term

submit that information to the Texas Indigent Defense

collateral consequences for Texas youth. In most jurisdictions,

Commission. Not only will this improve accountability

a juvenile is fingerprinted at the initial contact with the

through increased data collection and information

juvenile system; those fingerprints are forwarded to the Texas

sharing, it will give local judges the tools to make effective

THE SAN ANTONIO DEFENDER

appointments, while preserving local control over caseload

contents, increasing the chances of an erroneous conviction.

standards. Furthermore, through a mandated study by the

This contravenes the basic tenants ofour justice system

Commission on appointed attorney caseloads, this bill will

and runs contrary to the constitutional protection against

help state leadership make critical, well-informed decisions

being compelled to be a witness against oneself. HB 2090

about caseload standards, best practices, and resource

will require a written statement that is signed by the

allocation.

accused to be made in a language that he or she can read and understand before it can be admitted as evidence in a criminal

Separately, HB 1318 prohibits a public defender’s office from

proceeding. Effective September 1, 2013.

accepting a case if doing so would violate the maximum allowable caseload established at that office.If a public

• SB 344 (Whitmire) [Sponsor: Turner, Sylvester; Wu]: Relating

defender’s office fails to accept a case, the Chief Public

to the procedure for an application for a writ of habeas corpus

Defender must submit a written explanation to the court,

based on relevant scientific evidence. This bill allows an

showing good cause. The Chief cannot be terminated or

individual to file a writ of habeas corpus seeking relief from

sanctioned for refusing to accept a case in good faith. Effective

a conviction if scientific evidence is discovered that would

September 1, 2013; Sections 1 and 6 effective September 1, 2014.

negate the conviction. Such evidence must not have been available to the defendant through reasonable diligence

Note: For HB 1318 provisions relating to youth defense, see

at the time of the original trial – but had it been available,

page 1.

it would have had to have been relevant, admissible, and likely to have negated the conviction. This bill will allow

• HB 1847 (Carter) [Sponsor: Huffman]: Relating to continuing legal education in ethics or professional responsibility

incarcerated individuals to take advantage of new technology and evidence that can prove their innocence, and potentially

for prosecutors. This bill requires that within 6 months

cut back on further incarceration expenses. Effective September

of starting work as a prosecuting attorney, a person

1, 2013.

must complete at least one hour of continuing legal education relating to the duty of a prosecuting attorney

• SB 825 (Whitmire) [Sponsor: Thompson, Senfronia]: Relating

to disclose exculpatory and mitigating evidence in a

to disciplinary standards and procedures applicable to

criminal case. This bill will serve as an important tool in

grievances alleging certain prosecutorial misconduct. Current

highlighting contributors to prosecutorial misconduct,

Texas code allows individuals to file grievances against

and may ultimately prevent future wrongful convictions or

attorneys for misconduct, and it sets out various disciplinary

incarcerations. Effective January 1, 2014.

measures (including public or private reprimands). SB 825 requires the state Supreme Court to establish a rule that

• HB 2090 (Canales) [Sponsor: Hinojosa]: Relating to a written statement made by an accused as a result of custodial

prohibits a simple private reprimand if a prosecutor fails to disclose evidence or information to the defense that

interrogation. The U.S. Constitution protects individuals from

would have negated an individual’s guilt or mitigated the

being compelled in a criminal case to be a witness against

offense. Furthermore, this bill changes the 4-year statute of

himselfor herself. Current Texas law does not, however,

limitations period to file a grievance against an attorney for

require a signed written statement to be in a language that the

failure to disclose evidence; the statute will begin to toll on

accused can read and understand. As a result, an individual

the date that the wrongfully imprisoned person is released

who does not read or comprehend English could potentially

from a prison or state jail (rather than the date when the

sign a statement in English without understanding its

violation was discovered). This gives individuals an adequate 19

Successful Juvenile and Criminal Justice Bills & Funding Provisions 2013 Texas Legislative Session

opportunity to file a grievance based on prosecutorial

Department of State Health Services (DSHS) must authorize

misconduct, increases public confi dence in the justice

a private provider to operate and manage the program, and

system, and improves accountability and transparency.

a stakeholder workgroup – to include county leadership, law

Effective September 1, 2013.

enforcement, a judge and attorneys, a representative of a mental health provider, and mental health advocates – will

• SB 1044 (Rodríguez) [Sponsor: Walle; Moody]: Relating

help to develop rules for the program. The provider must

to access to criminal history record information by certain

meet strict criteria that will be critical in ensuring strong care

entities, including certain local government corporations,

for program participants.

public defender’s offices, and the office of capital writs, and to an exemption for those offices from fees imposed for

If the provider determines that a defendant will not

processing inquiries for that information. This bill creates

immediately begin to receive competency restoration

uniform standards regarding attorneys’ access to criminal

services, the defendant will be transferred to an appropriate

history record information, which is necessary to fully and

mental health facility or residential care facility, as provided

effectively represent defendants. Specifically, it will entitle

by the court order. Furthermore, when it is determined

the following offices to fee-exempt access to relevant records

that the defendant has achieved competency, the provider’s

maintained by the Texas Department of Public Safety: public

psychologist must immediately notify the court. On the

defender’s offices, the Office of Capital Writs, and certain

other hand, if the psychologist determines that competency

local government corporations created to conduct criminal

is unlikely to be restored or the defendant has not reached

identification activities (background checks). Effective September 1,

competency after 60 days, the psychologist will work with the

2013.

court to place the defendant in another setting or handle the defendant’s case in another way.

• SB 1292 (Ellis) [Sponsor: Turner, Sylvester; Miles; Carter]:

Also under this bill, if DSHS does establish a pilot program, it

Relating to DNA testing of biological evidence in certain capital

must submit a report to various legislative committee heads

cases. This bill requires the Department of Public Safety to

by December 2016 outlining the program outcomes and

perform DNA testing on all biological evidence collected

providing collected information. Effective September 1, 2013.

during the investigation of an offense in which the state is seeking the death penalty. If the state and the defendant do

• SB 1611 (Ellis; Duncan) [Sponsor: Thompson, Senfronia;

not agree as to what constitutes biological evidence, either

Lewis; Moody; Farney; Davis, Yvonne]: Relating to discovery

party may request a hearing to determine the answer, and

in a criminal case. This bill improves defendants’ access

all DNA collection must be completed before the formal trial

to important evidence regarding their case, including

begins. This will protect due process and reduce wrongful

law enforcement reports and witness statements, and it

convictions, while also saving the state significant funds

requires the prosecution to provide all such discoverable

by reducing costly appeals, unnecessary incarceration, and

information upon the defense’s request. This will assist

longterm compensation costs. Effective September 1, 2013.

counsel in providing a strong defense for their clients. Note: If a defendant is working pro se (without an attorney), the

• SB 1475 (Duncan) [Sponsor: Zerwas]: Relating to a jail-

state is not required to give copies of the evidence to the

based restoration of competency pilot program. This bill

defendant, but must allow the defendant to observe the

creates a 4-year, permissive competency restoration pilot

evidence.

program in up to two county jails to treat defendants who are incompetent to stand trial. Under the bill, the

Separately, SB 1611 limits the information that the defense

THE SAN ANTONIO DEFENDER

may share with third parties, thus minimizing the disclosure

individuals are only revoked when other rehabilitative

of sensitive information for the protection of victims.

options have been exhausted. Effective Immediately (June 2013).

Effective January 1, 2014.

SOLUTIONS FOR SAFELY REDUCING INCARCERATION

• SB 462 (Huffman) [Sponsor: Lewis]: Relating to specialty court programs in this state. Texas specialty courts are designed to serve certain groups, including veterans, individuals with mental illnesses, and individuals convicted of crimes caused

• SB 126 (Nelson) [Sponsor: Davis, John]: Relating to the creation

by drug addiction. During the past 10 years, the number of

of a mental health and substance abuse public reporting

specialty courts in Texas has grown exponentially. This bill

system. Given high rates of arrest for drug possession in

will ensure that each of these courts is operating effectively

Texas, as well as a high incidence of mental illness among

and efficiently by establishing performance tracking and

system-involved populations, it is critical to improve

accountability systems. Specifically, SB 462 requires specialty

access to and awareness about available community-

courts to: register with the Criminal Justice Division of the

based treatment programs. This bill will help to provide

Governor’s office; track and report their performance; and

information about which behavioral health programs

comply with best practices adopted by the Criminal Justice

and services in Texas – including mental health and

Division, which is guided by the Specialty Courts Advisory

substance abuse services – are the most successful, based on

Council. This bill also increases the number of Specialty

performance and outcome measures. This information will

Courts Advisory Council members from 7 to 9. Through a

assist Texans in selecting substance abuse and mental health

stronger specialty court system, Texas will enhance public

programs that are appropriate for their needs, while also

safety outcomes and improve resource prioritization and

helping state and local decision-makers determine which

allocation. Effective September 1, 2013.

programs warrant ongoing or increased investments. Effective September 1, 2013.

• SB 484 (Whitmire) [Sponsor: Turner, Sylvester]: Relating to the creation of a prostitution prevention program; authorizing

• SB 358 (Hinojosa) [Sponsor: Muñoz, Jr.]: Relating to the

a fee. This bill allows for the creation of local or regional

use of a polygraph statement as evidence that a defendant

prostitution diversion programs, which will apply only

or releasee from the Texas Department of Criminal Justice

to eligible participants with the consent of the district

has violated a condition of release. Courts may require

attorney. These programs will provide access to coordinated

individuals on probation to submit to regular polygraph

information and services relating to substance abuse, mental

tests as part of their conditions of probation. Failing a

health, and sex-related issues; successful completion of a

polygraph examination can result in further investigation

program, followed by two subsequent years of law-abiding

and even probation revocation, resulting in an expensive

behavior, may result in an individual receiving an order of

term of incarceration. However, Texas jurisprudence is clear

nondisclosure – an incentive to remain on the right path.

that results of polygraph examinations are inadmissible for

This rehabilitative approach to prostitution will provide sex

various evidentiary purposes and cannot, alone, serve as the

workers the tools to safely and permanently exit the business,

basis of an adjudication of guilt or probation revocation. This

in turn saving the state and counties much-needed funds

bill clarifi es that judges cannot revoke a person’s probation

otherwise spent policing, prosecuting, and incarcerating

based solely on the uncorroborated results of a polygraph

these individuals, and positively impacting both public

examination. Given that probation is a cost efficient and

health and public safety.

effective alternative to incarceration, it is essential that

21

Successful Juvenile and Criminal Justice Bills & Funding Provisions 2013 Texas Legislative Session

As a further benefit, certain programs under SB 484 will be established and maintained with federal funds. Note: If a county with a population over 200,000 receives sufficient federal or state funds to operate a program, county participation is mandatory. Effective September 1, 2013.

• SB 1096 (Hinojosa) [Sponsor: Muñoz, Jr.]: Relating to the monthly fee a defendant must pay during a period of community supervision. This bill removes the obligation to continue paying monthly probation fees after a judge terminates an individual’s probation period. Effective September 1, 2013.

• SB 1173 (West) [Sponsor: White]: Relating to procedures for the sentencing and placement on community supervision of defendants charged with the commission of a state jail felony. Texas’ state jail system, created in 1993, was originally

With the new option of a partial sentence followed by a term of community supervision, the individual would be discharged onto probation rather than released without supervision and support. While on probation (which costs 31 times less per day than a state jail term), a person will be held accountable to a probation officer and have access to effective rehabilitative programming, which reduces the likelihood of re-offending and costly re-incarceration.

• Finally, SB 1173 requires the Texas Department of Criminal Justice to determine the cost savings associated with placing defendants onscommunity supervision instead ofordering them to state jails, with 30 percent of savings reinvested in the continuation and improvement of probation programs.

Effective September 1, 2013.

SOLUTIONS FOR CONFINEMENT & REENTRY

intended to divert individuals with nonviolent offenses from crowded prisons; instead, such individuals would receive rehabilitative assistance in the community or, if having trouble in the community, would be confined in local state jails. Now, nearly 100% of individuals (many of whom prefer state jail over longer and stricter probation terms) are directly sentenced to state jail facilities, with extremely limited access to treatment and programming options, and typically without any post-release supervision. As a result, state jail releasees have the highest rates of re-arrest and reincarceration among returning populations.

Under this bill, a probation officer will complete a presentence report that contains a proposed supervision plan and, if the defendant is charged with a state jail felony, recommendations for conditions of community supervision if probation is determined to be appropriate. Before imposing a sentence in a state jail felony case, the judge must consider this report to determine whether to place the defendant on community supervision, impose the sentence, or order the sentence to be executed in part followed by a term of community supervision to commence after release.

• HB 62 (Guillen) [Sponsor: West]: Relating to a justice or judge having an interest in a business entity that owns, manages, or operates a private correctional or rehabilitation facility.

To avoid confl icts of interest during sentencing, this bill prohibits judges from holding a financial interest in a private correctional or rehabilitation facility. Effective January 1, 2015.

• HB 86 (Callegari; Cook; Laubenberg) [Sponsor: Lucio]: Relating to the criteria for review by the Sunset Advisory Commission of an agency that licenses an occupation. During the 2011-12 legislative interim, the House Committee on Government Reform recognized the problems associated with increased licensing regulations. These regulations can raise consumer prices and limit competition. To address these problems, HB 86 establishes a process for evaluating proposed licensing programs and legislation, specifically to ensure that they serve a clear public interest and provide the least restrictive form of regulation that will adequately protect public safety.

Effective September 1, 2013.

• HB 634 (Farias; Lucio III) [Sponsor: Rodríguez]: Relating to the verification of an inmate’s veteran status by the Texas

THE SAN ANTONIO DEFENDER

Department of Criminal Justice. The Texas Department of Criminal Justice (TDCJ) has historically had difficulty determining which inmates have previous military experience. This bill requires TDCJ to utilize data from the federal Public Assistance Reporting Information System (PARIS), made available through Texas’ Health and Human Services Commission, to verify the veteran status ofeach incoming individual. That information will help TDCJ assist incarcerated veterans in their efforts to apply for military benefits; create meaningful reentry plans that will help veterans as they transition back into society; and coordinate with the Veterans Administration in its efforts to provide critical mental health counseling and assistance to systemimpacted veterans. Effective Immediately (June 2013).

• HB 797 (Thompson, Senfronia; Miles) [Sponsor: Garcia]:

to deny an individual an occupational license for having previously been convicted of a Class C misdemeanor. Yet such low-level offenses result only in the issuance of a ticket and the imposition of a fine; they almost never result in jail time. This bill prohibits licensing authorities from denying licenses to people with Class C misdemeanors – unless the applicant is seeking a license that authorizes him or her to carry a gun, and he or she has been previously convicted of a domestic violence offense. This bill will allow more men and women to find gainful employment, support their families, and contribute to their communities. Effective September 1, 2013.

• HB 799 (Thompson, Senfronia; Miles) [Sponsor: Whitmire]: Relating to vocational training programs provided by the Windham School District. This bill requires the Windham School District to continually assess the Texas job market and

Relating to certain written information the Windham School

provide vocational programs that will build relevant skill sets.

District must provide to a person before the person enrolls in a

Doing so will create a larger qualifi ed workforce and ensure

district vocational training program. Incarcerated individuals

that more returning individuals are matched with available

who do not realize that they may face stringent (and perhaps insurmountable) postrelease obstacles to obtaining an occupational license may sign up to learn a trade that they will never be able to practice. This bill requires the Windham School District (WSD) to provide potential vocational trade students with information about post-release licensing restrictions, rates of licensing among past WSD students, and the licensing and appeals process. This will allow incarcerated individuals to make better decisions about enrolling in vocations courses, thus enabling the best possible opportunities to find meaningful, postrelease employment and contribute as a taxpayer in the community. It will also help WSD identify students who will most benefit from limited vocational course slots, while reducing long waitlists for courses. Effective Immediately (June 2013).

• HB 798 (Thompson, Senfronia) [Sponsor: Garcia]: Relating to

trades in Texas communities, while reducing the likelihood that such individuals will become unemployed and return to crime. Effective September 1, 2013.

• HB 1188 (Thompson, Senfronia; Perry; Miles) [Sponsor: Whitmire]: Relating to limiting the liability of persons who employ persons with criminal convictions. This bill limits employer liability on charges of negligently hiring or failing to adequately supervise an employee who has a criminal conviction, with two exceptions: (1) the employer knew of the past crime and the conviction was for a serious aggravated or violent sexually related felony, or involved a crime committed in circumstances substantially similar to those required by the current job duties, or (2) the employee’s current offense is fraud or misuse of funds, and he or she has previously been convicted of a similar crime. Effective immediately (June 2013).

• HB 1544 (Allen) [Sponsor: Ellis]: Relating to the authority of a

certain actions taken by certain licensing authorities regarding

county to contract with a private vendor for the operation of

a license holder or applicant who has been convicted of a Class

a detention facility. This bill requires all Texas counties to get

C misdemeanor. Current Texas code allows licensing agencies

written approval from the local sheriff before entering into a 23

Successful Juvenile and Criminal Justice Bills & Funding Provisions 2013 Texas Legislative Session

contract to privatize a local jail. Effective immediately (June 2013).

jointly prepare and submit an annual report containing this data to relevant state agencies and legislative stakeholders.

• HB 1659 (Thompson, Senfronia) [Sponsor: Lucio]: Relating

This joint report will also be made available to the public.

to certain actions taken by certain licensing authorities

Ultimately, this bill will improve officer/coordinator

regarding a license holder or applicant who received deferred

accountability and efficiency, help to identify gaps in

adjudication for certain offenses. A criminal record can

reentry services (especially in historically underserved

severely limit an individual’s access to housing, employment,

areas), and create a cultural shift toward more effective case

and other benefits, thus increasing the likelihood of re-

management. Effective September 1, 2013.

offending. Barriers to these necessities are especially troubling when an individual has successfully completed a

Note: For HB 2719 provisions relating to youth justice, see

term of deferred adjudication, which allows the sentencing

page 2.

judge to set aside the conviction after the person has fulfilled all obligations of community supervision. HB 1659 will

• SB 107 (West) [Sponsor: Johnson]: Relating to the disclosure

limit an occupational licensing agency from considering a

by a court of criminal history record information that is the

person’s deferred adjudication during a license suspension or

subject of an order of nondisclosure. A criminal record poses

revocation process, for crimes other than aggravated felonies,

significant barriers to reentry, including limited access to

if fi ve years have passed since the completion of deferred

housing, employment, and other critical tools that reduce the

adjudication. This will lessen barriers to licensing that are

likelihood of costly re-offending. In recognition of this, Texas

unnecessarily and unfairly placed on those who successfully

courts may order the criminal conviction of an individual to

complete their courtordered community supervision and

be sealed in specific instances. However, while current code

rehabilitative programming. Effective September 1, 2013.

prohibits “criminal justice agencies” from disclosing sealed criminal history information, it does not include courts in

• HB 2719 (Guillen) [Sponsor: Rodríguez]: Relating to collecting

its definition of criminal justice agencies, thereby creating a

and reporting information concerning inmates who have

loophole that allows court clerks to disclose criminal history

been in the conservatorship of a state agency responsible

information. This bill closes that loophole for individuals

for providing child protective services and concerning

who have successfully completed a period of deferred

inmate parole, reentry, and integration. Under this bill,

adjudication and who have petitioned the court for an order

parole officers and reentry coordinators will improve the

of nondisclosure. Effective September 1, 2013.

data they track and report. Reporting requirements under this bill will include, among other things, data related to:

• SB 345 (Whitmire) [Sponsor: Parker]: Relating to certain

referrals for employment, housing, education, treatment,

programs for inmates, including the abolition of the state boot

services, medical care, and other basic needs; the outcomes

camp program and the use of programs by volunteer and

of client referrals, as well as areas where referrals are not

faith-based organizations. Under this bill, each prison warden

made because of unavailable resources; information on

in the Texas Department of Criminal Justice (TDCJ) will issue

available community resources; common barriers to reentry;

a brief yearly report detailing his or her efforts to identify

common benefits or services that reentry coordinators help

and actively encourage volunteer organizations (like veterans

releasees obtain or apply for; and information on available

groups, faithbased organizations, local government agencies,

training opportunities for both parole officers and reentry

and non-profit organizations) to provide programming

coordinators. The Texas Department of Criminal Justice’s

in that warden’s unit. This will allow wardens to share

Reentry and Integration Division and Parole Division will

information about volunteer recruitment strategies, as well

THE SAN ANTONIO DEFENDER

as information about proven, evidence-based programs that work best for particular populations. It will also save the corrections system money by leveraging existing resources, while ultimately expanding inmates’ access to critical programming that will ease the reentry transition and lower rates of re-offending (e.g. , programs to build literacy and education, life skills, and job skills, or parenttraining programs). Separately, SB 345 abolishes the state boot camp program for inmates. Boot camps have proven to be costly and ineffective; yet, TDCJ has been required to maintain boot camp facilities that are not utilized. Abolishing the requirement to operate a boot camp facility that is not being used sill allow the state to spend the resources on more effective strategies. Effective September 1, 2013.

• SB 369 (Whitmire) [Sponsor: Burnam]: Relating to certain

improve reentry success rates. Effective September 1, 2013.

• SB 1003 (Carona) [Sponsor: Guillen]: Relating to a review of and report regarding the use of adult and juvenile administrative segregation in facilities in this state. This bill requires an independent third party to work with Texas’ criminal and juvenile justice agencies to conduct a comprehensive evaluation of policies and practices related to administrative segregation and solitary confinement of youth and adults. This third party will provide outside expertise on best practices related to isolation and solitary confinement and will submit a report of its findings and recommendations to the Legislature by December 31, 2014. Among other things, the third party will examine access to transitional and rehabilitative programs and services; release procedures; statistical data related to the number of individuals in

information available to the public on a central database

solitary confinement, including those with mental health

containing information about sex offenders. Under this bill,

issues and the average length of time spent in isolation; and

the state’s public sex offender registry will no longer be required to include the names and addresses of registrants’ employers. This will protect employers from harassment and will prevent punishing employers who make responsible, appropriate job placements that increase the likelihood that

the rate of recidivism among individuals who were confined in administrative segregation. This bill will help improve segregation and seclusion policies and practices, identify strategies to reduce the use of segregation, improve access to rehabilitative assistance for isolated individuals who will one

people will remain law abiding.

day be released to the community (thus decreasing recidivism

Separately, this bill allows civil petitions for an order of

September 1, 2013.

non-disclosure to be filed electronically or mailed on a standardized form, which will eliminate the need for an attorney’s assistance to draft and file the petition. The Office of Court Administration must create and provide the online form. Upon an individual’s request for an order for nondisclosure, the court must order a hearing to determine whether the petition should be granted – unless the state does not request a hearing on the issue, and the court finds that the defendant is eligible for the order of nondisclosure, and the

in the long term), and eliminate wasteful spending. Effective

Note: For SB 1003 provisions relating to youth justice, see page 4.

• SB 1185 (Huffman) [Sponsor: Thompson, Senfronia]: Relating to the creation of a mental health jail diversion pilot program.

This bill creates a 4-year, serviceoriented mental health pilot program in Harris County (Houston) that will offer mentally ill individuals the tailored assistance they need to live

order is in the best interests of justice.

responsibly in the community, following their release from

Ultimately, this bill preserves important safeguards

State Health Services will develop a “criminal justice mental

while encourage wider hiring of previously incarcerated individuals, increasing applicant pools, and helping to

the Harris County jail. More specifically, the Department of health service model” to initially address the needs of at least 200 participants. The program will provide access to available

25

Successful Juvenile and Criminal Justice Bills & Funding Provisions 2013 Texas Legislative Session

social, clinical, housing, and welfare services during the first

CRIMINAL JUSTICE AGENCY SUNSET LEGISLATION

weeks after a person’s release from jail.

• SB 213 (Whitmire; Nichols) [Sponsor: Price]: Relating to the SB 1185 also seeks the cooperation and critical input of

continuation and functions of the Texas Board of Criminal

a variety of local stakeholders and service providers, to

Justice, the Texas Department of Criminal Justice, and the

assure the most effective program is in place considering

Windham School District and to the functions of the Board

existing programs and strategies. Furthermore, the bill calls

of Pardons and Paroles and the Correctional Managed Health

for a report by the Harris County Commissioner on the

Care Committee. As it pertains to alternatives to incarceration,

pilot program by the end of 2016, ensuring transparency

this bill requires the development and implementation

and accountability. This preventive approach to assisting

of a tandardized risk and needs assessment instrument

mentally ill individuals will best enable them to adapt and

to be used when individuals are placed on probation; the

rehabilitate, keeping them from repeatedly re-offending and

instrument must be in place by 2015. The bill also calls for

being re-incarcerated at massive taxpayer expense. Effective

an examination of the probation system’s grant processes,

immediately (June 2013).

as well as recommendations pertaining to the possibility of performance-based funding formulas. As it pertains to

• SB 1289 (Williams) [Sponsor: Bohac]: Relating to

rehabilitative approaches to incarceration and reentry, this

certainbusiness entities engaged in the publication of mug

bill requires the development and implementation of the

shots and other information regarding the involvement of

above-mentioned standardized risk and needs assessment

an individual in the criminal justice system; providing a civil

instrument, to be used in prisons and state jails to inform

penalty. This bill requires business entities that publish criminal

individual treatment plans. The bill also requires the full

histories to include accurate and complete information. The

implementation of a reentry plan that utilizes that risk and

information is considered complete if it refl ects all notations

needs assessment, and facilitates programming to address

of arrest and the filing and disposition of all criminal charges,

assessed needs; the plan must be evaluated and updated every

as applicable; and it is considered accurate if it refl ects the most

three years. Furthermore, the bill expands the state’s Reentry

recent information received by the entity from the Department of

Task Force membership and duties, and it requires the Board

Public Safety, or was obtained from a law enforcement agency or

of Pardons and Paroles to give specific reasons, in writing, for

criminal justice agency within 60 days of the date of publication.

a denial of parole.

SB 1289 also requires entities to publish their e-mail address, fax number, or mailing address so that a person can dispute the completeness and accuracy of the information. If the entity receives a complaint about disputed information, it must conduct a free investigation as to the accuracy and completeness of the information within 45 days. If any information is inaccurate or incomplete, the business entity must promptly and permanently remove the information from its system. Lastly, SB 1289 imposes

2013 FUNDING PROVISION—KEY COMPONENTS OF THE STATE’S BUDGET, SB 1, PERTAINING TO JUVENILE AND CRIMINAL JUSTICE JUVENILE JUSTICE

a civil penalty if such entities publish information that is under an order of expunction or nondisclosure. Effective September 1, 2013.

In an effort to defeat early attempts to drastically cut funds from local juvenile probation services, practitioners, youth, and advocates alike banded together to inform legislators about the significant need for more—not less—state funding.

THE SAN ANTONIO DEFENDER

Attempts were also made to close multiple state secure facilities,

becoming a front-end entity, caps such as this one are crucial

which would further increase the financial burden on local

in facilitating the Department’s prioritization of community-

communities and result in a mass transfer of youth to other

based programs and services. The cap for the 2014-2015

facilities in a very short time.

biennium has been set at 1,356 beds, not including halfway house-facilities operated by the Department, or contract

However, by the conclusion of the 2013 legislative session,

facilities.

stakeholders reached a compromise. Specifically, policymakers appropriated $327 million solely for Community Juvenile

• Rider 33: Local Assistance: This rider designates funds

Justice for the 2014-2015 biennium, 9% of which is dedicated to

($150,000 in FY 2014 and $144,000 in FY 2015) and requires

serving youth with mental health needs. Furthermore, policy-

two-full time employees of Central Administration in each

makers chose to close one of Texas’ six state secure facilities for

fiscal year to evaluate and improve programming at the local

youth.

level. With this designation, local probation departments will be given much-needed assistance in ensuring that the

TCJC considers these outcomes a win, as they fall in line with

programming and treatment being offered to their youth are

specific components of sustaining juvenile justice reform in

well designed, implemented, and evaluated, and ultimately

Texas. The closure of a state secure facility and the re-alignment

effective.

of funds to serve youth within local communities, especially youth with the highest needs (e.g. , kids with mental health

• Rider 35: Facility Closure: This rider requires at least one state

needs), are necessary in helping the Texas Juvenile Justice

secure youth facility to be shut down. The Department must

Department become an effective front-end agency.

identify which facility should be closed, determine the needs

KEY BUDGET RIDERS

of the current youth population in that facility, and create a transition plan—with treatment components—for the youth who will be impacted. The Department must present the plan

The following riders provide additional or more specific

to the Legislative Budget Board no later than September 1,

information about the use of juvenile justice funding:

2013.

• Rider 28: Reporting Requirements to the Legislative

• Rider 36: Mental Health Services: This rider creates a new line

Budget Board: Per this rider, the Texas Juvenile Justice

item, A.1.7. , within Community Juvenile Justice, specifically

Department must begin annually reporting on prevention

for mental health services for youth being supervised by local

and intervention programs, including their utilization and

juvenile probation departments. This new, greatly needed

effectiveness. The Department implemented prevention

funding stream will help probation departments serve

and intervention services more than a year ago, and they

youth with the highest needs. Collectively, more than $25

are limited in scope. These reporting requirements will

million has been allocated to this line item for the 2014-2015

provide the Department with the necessary data to determine

biennium.

whether the programs are meeting the needs of youth.

INDIGENT DEFENSE

• Rider 32: Juvenile Justice Department Institutional Capacity: This rider imposes an institutional cap on the number of

The Texas Indigent Defense Commission awards grants and

beds the state is allowed to operate within state secure

much-needed technical assistance to Texas’ 254 counties on

facilities. As the agency moves forward in reaching its goal of

issues related to defense systems and models, helping counties 27

2013 Funding Provisions

develop and maintain quality, cost-effective indigent defense

SAFELY REDUCING INCARCERATION

systems that meet the needs of local communities.

Policy-makers chose to continue and strengthen previous Prior to Texas’ 2011 Legislative Session, the Commission was

smart-on-crime reforms, once again proving their commitment

permitted to roll forward the unexpended balance in its Fair

to hardworking practitioners and ensuring the fidelity

Defense Account every biennium; since then, the Commission’s

and success of responsible crime-reduction best practices

unexpended funds—intended for indigent defense—have been

– particularly diversions and other programs to reduce

held by the State as a means to balance the state budget.

recidivism.

This session, policy-makers allocated approximately $48

Specifically, probation and community-based programs were

million for FY 2014 and $31 million for FY 2015 to the

allocated approximately $298 million for FY 2014 and $301

Commission, which effectively restores all funding designated

million for FY 2015 (representing an approximate $41 million

for indigent defense purposes.

increase from last session), out of a total corrections budget of

Facility Closures

$3.1 billion for both FY 2014 and FY 2015.

Policy-makers’ re-prioritization of corrections strategies

Diversions funding has been allocated as follows:

has built momentum for facility closures over the past two

• Basic Supervision: More than $110 million in FY 2014 and $113

legislative sessions. In 2011, Texas closed a prison for the first time (Sugar Land Unit); during this recent 2013 legislative session, budget-makers targeted two private facilities for closure, which will occur in the coming biennium, as per the following rider:

million in FY 2015.

• Diversion Programs: Nearly $129 million in both FY 2014 and FY 2015.

• Community Corrections: Nearly $47 million in both FY 2014 and FY 2015.

• Treatment Alternatives to Incarceration Program: Nearly $12

• Rider 64: Close Private Prisons: This rider requires TDCJ to

million in both FY 2014 and FY 2015.

reduce correctional facilities bed capacity to contain costs

Special needs programs and services (primarily for individuals

as they pertain to “Contract Prisons and Privately Operated

on probation or parole) received approximately $22 million per

State Jails,” and “Residential Pre-Parole Facilities.” When

fiscal year.

making reductions in bed capacity, TDCJ must consider the following: (a) projected incarceration demand for correctional

KEY BUDGET RIDER

facilities bed capacity; (b) safety and security issues; (c) inmate classification needs; (d) TDCJ staffing needs; (e)

• Rider 40: Implement Commitment Reduction Plans: This

costeffectiveness; (f) prioritization of state-owned facilities

rider requires the Texas Department of Criminal Justice

in lieu of privately operated contract facilities; and (g) any

to appropriate certain remaining funds towards the

other information that TDCJ deems relevant. Based on these

implementation ofone or more commitment reduction plans;

criteria, this rider will likely result in the closure of the

these plans were legislatively authorized in 2011 by SB 1055 to

Dawson State Jail (Dallas), and the Mineral Wells Pre-Parole

allow county probation departments to set target reduction

Transfer Facility (North Texas).

goals that would safely cut the number of people from that county who will be sent to prison or state jail. Participating counties should receive an upfront, lump sum of the savings from projected commitment reductions to establish

THE SAN ANTONIO DEFENDER

necessary programming; funds will then be apportioned to

KEY BUDGET RIDERS

counties based on their continued performance and ability to achieve their desired goals.

CONFINEMENT & REENTRY

• Rider 58: Improve TDCJ Ombudsman Reporting: The current Ombudsman Program at the Texas Department of Criminal Justice (TDCJ) prepares regular reports for review by TDCJ leadership on inquiries and responses – but not on the

The corrections budget is largely devoted to incarcerating

ultimate resolution ofeach inquiry. This rider requires TDCJ’s

felons, at $2.5 billion per fiscal year. Below, we have listed

Ombudsman to provide regular, publicly available reports

only those line items pertaining to treatment program, and

to the Governor and legislators on the number and types

rehabilitative and other services:

of inquiries made, and whether and how each inquiry was resolved. TDCJ’s Ombudsman shall submit the annual reports

• Offender services ($14 million per year for FY 2014-15)

no later than December 1st ofeach fiscal year for the preceding

• Institutional services ($194 million for FY 2014 and

fiscal year’s activity.

$186 million for FY 2015) • Unit and psychiatric care ($253 million for FY 2014 and $256 million for FY 2015) • Hospital and clinical care ($167 million for FY 2014 and $171 million for FY 2015) • Managed health care-pharmacy ($58 million for 2014 and $59 million for 2015)

• Rider 59: Improve TDCJ’s Parole and Reentry Reporting: This rider requires TDCJ’s Reentry and Integration Division and Parole Division to submit an annual joint report to the Governor and legislators on various items. These include: outcomes from parole officers and reentry coordinators, including their program/placement referrals and outcomes

• Health services ($4.8 million per year for FY 2014-15)

(in housing, medical care, treatment for substance abuse

• Residential pre-parole facilities ($9 million per year for

or mental illness, veterans services, basic needs, etc.);

FY 2014-15) • Academic/vocational training ($1.9 million per year for FY 2014-15) • Treatment services (nearly $23 million per year for FY 2014-15)

available and unavailable programs, services, resources, and benefits; common reentry barriers; and practitioner training opportunities. This report, which must be made publicly available, shall be submitted no later than December 1st ofeach fiscal year for the preceding fiscal year’s activity.

• Substance abuse felony punishment ($57 million per year for FY 2014-15) • In-prison treatment and coordination (nearly $35 million per year for FY 2014-15)

• Rider 61: Study TDCJ Visitation Procedures: This rider requires TDCJ to perform or commission a study on ways to improve its visitation polices, with the end goal being policies that strengthen family ties, including by expanding areas that

The corrections budget also allocates funding for Texas’ parole

are child-friendly during visitation periods, and notifying

system:

individuals who are eligible to visit incarcerated persons

• Approximately $26 million each fiscal year for the operation

that visitation has been cancelled or rescheduled. TDCJ must

of the Board of Pardons and Paroles. This budget allocation

report the findings of the study to the Legislative Budget

allows the Board to continue its high level of productivity.

Board and the overnor no later than September 1, 2014.

• $165 million in FY 2014 and $166 million in FY 2015 for the operation of the parole system, including supervision, halfway house facilities, and intermediate sanction facilities.

• Rider 62: Track SAFPF Completion Rates: This rider requires TDCJ to track program completion rates of individuals in 29

2013 Funding Provisions

Substance Abuse Felony Punishment Facilities (SAFPFs,

relevant to incarcerated individuals both while confined and

which are structured treatment programs) to determine

on release.

where improvements can be made and where resources should be allocated. Must report the findings to the

JAIL STANDARDS

Legislative Budget Board and the Governor no later than With a staffof just 16 people and an annual budget of less than

September 1st ofeach evennumbered year.

$1 million, the Texas Commission on Jail Standards guards • Rider 63: Provide Incarcerated Individuals with Useful

Texas counties from damaging lawsuits, specifically by setting

Incarceration- or Reentry-Related Information: This rider

constitutional jail standards for counties to follow, conducting

requires TDCJ to make information continually available

facility inspections, enforcing compliance with rules and

to inmates on various topics, including but not limited to

procedures, and offering vital technical assistance and training

innocence and wrongful convictions, inmate transfers,

for counties. These functions, in turn, help keep jail staff and

the health care services fee, prisoners’ civil rights, filing a

inmates safe.

grievance, requesting medical care, veterans services (preand post-release), child support, and reentry-related services,

The Commission received approximately $588,000 per fiscal

including information on community-based programs and

year to perform jail inspections and enforce standards; collect

services available in the areas in which an individual plans

data regarding inmate conditions, backlogs, and costs; and

to be released. TDCJ must utilize available resources to

assist or receive assistance with operation planning and

accomplish these objectives, and may work with faith-based,

analysis. Furthermore, the agency received approximately

nonprofit, and civil rights organizations, among others, to

$322,000 per fiscal year for indirect administration to provide

compile and provide this type of information to individuals,

finance, human resource, and technology assistance to staff,

which should be available in TDCJ unit libraries and any other

many of whom work across strategy areas. The commission

TDCJ areas that may increase individuals’ knowledge of this

also received one exceptional item of $10,000 per year for

information. Additionally, TDCJ must establish and provide

travel expenses, which will allow for additional onsite technical

programs to educate employees and incarcerated individuals

assistance and training.

about hepatitis, including issues related to hepatitis that are

CALL

for

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THE SAN ANTONIO DEFENDER

Early Termination of Probation with Judicial Clemency Under TCCP Article 42.12

Michael C.

Gross

We read the

§ 5. Termination of regular probation is governed by Article

recent opinion in

42.12, § 20. Both sections of 42.12 regarding termination

Hall v. State, and

of probation are basically the same, but you should read the

discussed the

pertinent section prior to filing a motion to terminate probation

judicial clemency

be it either for regular or deferred probation. We will discuss

aspect of the case

regular probation for the purposes of this article since we have

with some of our

always used both sections identically and merely changed the

fellow defense

section number in the motion to terminate probation.

counsel. Many

Jeffrey D.

Weatherford

new counsel

Article 42.12, § 20 creates two distinct ways a court may

were unaware

terminate a person’s regular probation. The most common

that a defendant

type is where the judge simply discharges the person from

who successfully

regular probation and the underlying conviction remains.

completed

The other type of discharge is termed “judicial clemency” and

probation

is discussed at § 20(a). Judicial clemency is where the court

conditions may,

discharges the person from probation and sets aside the verdict

in most cases,

or permits the defendant to withdraw his plea; and dismisses

file a motion to terminate probation and obtain an order from

the accusation, complaint, information or indictment against

the judge allowing the defendant to withdraw the plea, dismiss

the defendant and returns all rights to the defendant. Tex. Code

the indictment or information, and release and discharge the

Crim. Proc. art. 42.12, § 20(a). The defendant who receives

defendant from all penalties and disabilities resulting from

judicial clemency is thereafter “released from all penalties and

the proceedings. This termination may be obtained, in most

disabilities resulting from the offense or crime of which he has

cases, prior to the end of the defendant’s probation period and

pleaded guilty, except that proof of his said conviction or plea

includes both regular and deferred probation. We thought

of guilty shall be made known to the court should the defendant

that an article addressing this opportunity along with a sample

again be convicted of any criminal offense.” Id. The following

motion to terminate probation and order would be helpful for

cases illustrate just how beneficial judicial clemency may be for

new attorneys unaware of this procedure.

your client.

Probation (now called community supervision but we still

JUDICIAL CLEMENCY CASE LAW

prefer to call it probation) in Texas is governed by Article 42.12 of the Texas Code of Criminal Procedure. Termination of

The recent case of Hall v. State, No. 06-12-00091-CR (Tex. App.

deferred adjudication probation is governed by Article 42.12,

– Texarkana, February 6, 2013, no pet. h.), held that a conviction 31

Early termination of probation with judicial clemency under TCCP Article 42.12.

set aside pursuant to judicial clemency was not a reportable

the 1976 conviction was set aside pursuant to Article 42.12, §

conviction requiring a duty to register as a sex offender. Id.

20, there was no underlying felony conviction to support a

On January 30, 1981, Hall was convicted of “Aggravated Rape,

conviction under § 46.04 (felon in possession of a firearm).” Id.

a First-Degree Felony.” Id. Hall’s sentence of seven years

at 817. The court agreed, explaining that there are “two entirely

imprisonment was suspended, and he was placed on probation

different types of ‘discharge’ from probation under Article

for seven years. Id. At that time, there was no statutory duty

42.12, § 20.” Id. at 818. The court stated:

to register as a sex offender, and the terms and conditions of his probation did not require him to do so. Id. In 1988, after finding “that all conditions of probation had been satisfactorily fulfilled,” the trial court entered an “Order Setting Aside Judgement of Conviction Dismissing the Indictment and Discharging Defendant from Probation.” Id. The Hall court characterized the Defendant’s termination of probation under Article 42.12, § 20 as judicial clemency because the order

First, there is the usual method of discharge. When a person placed on probation has completed his entire term of probation and has satisfactorily fulfilled all of the conditions of probation, the trial judge shall discharge the defendant from probation . . . That person has paid his debt to society and, in effect, “graduates” from probation. However, that person has been convicted of a felony, even though he never went to prison and, for some purposes, it is not a “final” felony conviction.

set aside the judgment of Hall’s aggravated rape conviction, dismissed the indictment, discharged the Defendant from probation, and stated, “[T]he Defendant is hereby released from all penalties and disabilities resulting from the Judgement of Conviction in this case.” Id. The Hall court reasoned that because the indictment was dismissed and the conviction was set aside pursuant to Article 42.12, § 20, the conviction ceased to exist. Id. Recognizing the judicial clemency that was afforded to the Defendant in 1988, the Court of Appeals concluded that there was no underlying conviction which could serve as the predicate conviction activating the sex-offender registration requirement. Id. The Hall decision relied upon the Texas Court of Criminal Appeals decision Cuellar v. State, 70 S.W.3d 815 (Tex. Crim. App. 2002). Cuellar held that a felony conviction set aside pursuant to Article 42.12, § 20 cannot constitute the predicate conviction required to sustain a conviction for felon in possession of a firearm. Id. at 816. In 1976, Cuellar pled guilty to possession of heroin. Id. The trial court sentenced him to five years’ imprisonment, suspended the sentence, and placed Cuellar on probation for five years. Id. On September 1, 1981, the trial

*** There is, however, a second, less common type of discharge under Article 42.12, § 20. This second type of discharge is not a right but rather is a matter of “judicial clemency” within the trial court’s sole discretion. See Wolfe v. State, 917 S.W.2d 270 (Tex. Crim. App. 1996). . . That is, when a trial judge believes that a person on probation is completely rehabilitated and is ready to re-take his place as a lawabiding member of society, the trial judge may “set aside the verdict or permit the defendant to withdraw his plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty.” Tex. Code Crim. Proc. 42.12, § 20(a); State v. Jimenez, 987 S.W.2d 886, 888 n.2 (Tex. Crim. App. 1999) (“Under Texas law, successful completion of probation allows the judge to dismiss some charges without a final conviction.”). These words are crystal clear. There is no doubt as to their meaning. See Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991). If a judge chooses to exercise this judicial clemency provision, the conviction is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom “released from all penalties and disabilities” resulting from the conviction. Art. 42.12, § 20(a).

court entered an order setting aside the judgment of conviction and dismissing the indictment (judicial clemency). Id. In 1996, Cuellar was arrested for felon in possession of a firearm. Id. He was convicted and appealed on the contention that “since

Id. (emphasis added).

THE SAN ANTONIO DEFENDER

According to Cuellar, “[O]nce the trial court judge signed the

Firearms Owners’ Protection Act, ch. 44, § 101, 100 Stat.

Article 42.12, § 20 order, the felony conviction disappears.” Id.

449,449-50 (1986) (current version at 18 U.S.C. § 921(a)(20)

The court went on to state that a person whose conviction is

(2000)); see also Beecham v. United States, 511 U.S. 368, 371, 114

set aside pursuant to judicial clemency is not a convicted felon.

S.Ct. 1669, 128 L.Ed.2d 383 (1994) (what constitutes conviction is

Id. Therefore, a felony conviction set aside pursuant to judicial

governed by the law of the convicting jurisdiction).

clemency cannot constitute the predicate conviction required to sustain a conviction for felon in possession of a firearm. Id.

Because Beck’s convictions occurred in Texas, Texas law governed whether the convictions may serve as predicate

Judicial clemency has the same effect on the federal law

offenses. See United States v. Daugherty, 264 F.3d 513, 515 (5th Cir.

prohibiting a felon from possessing a handgun. A conviction set

2001). The Beck court relied upon Cuellar, supra, to hold that

aside via judicial clemency (Article 42.12, § 20) cannot be used

the prior “convictions” could not constitute prior felonies for

as a predicate offense under federal law preventing a felon from

purposes of the federal felon in possession of handgun statute.

possessing a handgun. See United States v. Beck, 2009 U.S. Dist.

Id. The court explained its holding:

LEXIS 74424 (W.D. Tex. Aug. 18, 2009). In Beck, the defendant

Each of the orders regarding Beck’s previous convictions is consistent with the second, discretional type of discharge.

The 1980 order specifically permits Beck to withdraw his guilty plea and dismisses the indictment against him.

The 1998 order sets aside the conviction, dismisses the indictment, and further releases Beck “from all penalties and disabilities resulting from the crime.” The effect of the affirmative, individualized actions of the state trial courts is to place Beck in the same position as one who was never convicted. The Government may not use either of Beck’s prior felony convictions as a predicate offense to support Count 2 of the indictment. As a result, Beck is under no disability or restriction in regard to the possession of firearms.

was charged in a two-count indictment. Count 2 charged being a felon in possession of a firearm which had been shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1). Id. Beck filed a motion to dismiss the indictment arguing that the underlying felony conviction was dismissed pursuant to judicial clemency and therefore no longer existed.

Id. Beck was previously convicted of two separate Texas felonies which the government relied upon to prove that he was a convicted felon. However, Beck received probation for both felonies and upon termination the trial court set aside the conviction, allowed Beck to withdraw his plea of guilty, and dismissed the underlying indictments. Id. The Beck court first pointed out that the federal felon in possession of a handgun statute is governed by the law of the convicting jurisdiction: What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Id.

THE LANGUAGE OF 42.12 § 20.

Texas Code of Criminal Procedure 42.12 , § 20, reads in pertinent part: Sec. 20. Reduction or Termination of Probation. (a) At any time after the defendant has satisfactorily completed one-third of the original probation period or two years of probation, whichever is less, the period of probation may be reduced or terminated by the judge. On completion of one-half of the original probation period or two years of probation, whichever is more, the judge shall review

33

Early termination of probation with judicial clemency under TCCP Article 42.12.

the defendant’s record and consider whether to reduce or terminate the period of probation...Upon the satisfactory fulfillment of the conditions of probation, and the expiration of the period of probation, the judge, by order duly entered, shall amend or modify the original sentence imposed, if necessary, to conform to the probation period and shall discharge the defendant. If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw the defendant’s plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty, except that:

may consider the fact that the person had previously received

(1) proof of the conviction or plea of guilty shall be made known to the judge should the defendant again be convicted of any criminal offense; and

You will not get judicial clemency under Article 42.12, §§ 5 or 20

(2) if the defendant is an applicant for a license or is a licensee under Chapter 42, Human Resources Code, the Health and Human Services Commission may consider the fact that the defendant previously has received probation under this article in issuing, renewing, denying, or revoking a license under that chapter. (b) This section does not apply to a defendant convicted of an offense under Sections 49.04—49.08, Penal Code, a defendant convicted of an offense for which on conviction registration as a sex offender is required under Chapter 62, or a defendant convicted of a felony described by Section 3g.

Tex. Code Crim. Proc. art. 42.12, § 20 (emphasis added).

Once the trial court signs the Article 42.12, § 20 order, the felony conviction disappears, except as specifically noted in subsections (1) and (2). Cuellar, supra. Under subsection (1), if the discharged person is subsequently convicted of another criminal offense, the previously dismissed “former” felony conviction will resurrect itself and be made known to the trial judge. Id. Under subsection (2), if the discharged person is applying for a license to run a child care facility or currently has such a license, the Texas Department of Human Services, in issuing, renewing, denying, or revoking such a license,

probation. See Cuellar, supra.

Some offenses are specifically precluded from judicial clemency.

It is unavailable to defendants convicted of offenses described in § 20(b). A defendant convicted of any intoxication offense (DWI, Intoxicated Assault/Manslaughter, etc.) is ineligible for judicial clemency. Id. Likewise, any conviction requiring sex offender registration is ineligible for judicial clemency. Id. Judicial clemency is also unavailable for 3g offenses.

HOW TO OBTAIN JUDICIAL CLEMENCY.

unless you ask for it. The defendant must be eligible for early termination in that he has satisfactorily served one-third of the regular probation or two years of probation, whichever is less. Tex. Code Crim. Proc. art. 42.12, § 20(a). Remember that there is no equivalent minimum time requirement in most cases for deferred adjudication probation under 42.12 § 5. It is our practice to incorporate the judicial clemency language from 42.12, § 20 into both the motion and order terminating either the regular probation or deferred adjudication probation under 42.12 §§ 5 or 20. A sample motion and order to terminate deferred adjudication probation are attached for your use and may easily be modified for regular probation. Good luck to you on obtaining judicial clemency for your eligible clients.

Michael C. Gross is a partner at Gross & Esparza, P.L.L.C. in San Antonio, Texas and was licensed in Texas in 1987. He is board certified in Criminal Law and Criminal Appeallate Law by the Texas Board of Legal Specialization and is board certified in Criminal Trial Advocacy by the National Board of Trial Advocacy. The firm’s practice is devoted to state, federal, and military criminal law.

Jeffrey Weatherford graduated Magna Cum Laude from St. Mary’s University School of Law in 2012. He currently practices state, federal, and military criminal law as an associate attorney for Gross & Esparza, P.L.L.C., in San Antonio, Texas.

CAUSE NO. ____________ THE STATE OF TEXAS

§ § § § §

V. ____________________

IN THE DISTRICT COURT OF __________ COUNTY, TEXAS __________ JUDICIAL DISTRICT

MOTION TO TERMINATE PROBATION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW ___________________________, the Defendant in the above styled and numbered cause, and pursuant to Article 42.12, Section 5(c) of the Texas Code of Criminal Procedure, respectfully moves the Court to terminate the period of probation in this cause, permit him to withdraw his plea of nolo contendere, and dismiss the indictment against him and discharge him. In support of this motion, the Defendant would show the Court as follows: I. The Defendant was charged by indictment with the felony offense of ___________________________, and pleaded ___________________________.

On ___________________________, this Court placed the Defendant on deferred adjudication probation for a period of two years.

II. The Defendant has now satisfactorily completed almost one year of the probationary period, and has complied with all the terms and conditions of said probation. The Defendant has fully and promptly complied with all reporting and other requirements imposed upon him during this period of his probation by the Court and by his probation officer.

III. The Defendant has earned strong support from the communities in which he lives and works, and by complying with all the terms and conditions of his probation, and considering his strong character attributes, the Defendant has demonstrated his willingness and ability to be a peaceful, law abiding citizen, and a productive member of the community.

IV. The ends of justice have been served, and the interest of the Defendant and of society will best be served by the Defendant being discharged from further deferred adjudication probation.

WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that after conducting an inquiry this Honorable Court will terminate the period of probation in this cause, permit him to withdraw his plea of nolo contendere, dismiss the indictment against him and discharge him.

Respectfully submitted, GROSS & ESPARZA, P.L.L.C. ______________________________________ Michael C. Gross State Bar No. 08534480 106 South St. Mary’s Street, Suite 260 San Antonio, Texas 78205 (210) 354-1919 (210) 354-1920 (Fax)

Attorney for the Defendant,

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the above referenced Motion to Terminate Probation was delivered to ___________________, Assistant District Attorney, on this _______day of _______________________, 20______.

______________________________________________________ CAUSE NO. ____________ THE STATE OF TEXAS V. _________________________________________

§ § § § §

IN THE DISTRICT COURT OF _________COUNTY, TEXAS _________JUDICIAL DISTRICT

ORDER On this _______day of __________________________, 20______, this cause coming on to be heard on Motion of the Defendant and this Court being fully advised in the premises and having been fully apprised of the following facts: That the Defendant in the above styled and numbered cause pleaded __________________________________to the felony offense of ______ _________________________. On _______________________________, this Court placed the Defendant on deferred adjudication probation for a period of two years; That the Defendant has satisfactorily completed almost one year of the probationary period and has complied with all the terms and conditions of said probation; and The Court is of the opinion that the ends of justice have been served, and that the interests of the Defendant and of society will best be served by discharging the Defendant from further probation, permitting the Defendant to withdraw his plea of nolo contendere, and dismissing the indictment against him.

Therefore, it is hereby ORDERED, ADJUDGED AND DECREED that the Defendant’s deferred adjudication probation is terminated, his plea of nolo contendere is withdrawn, and the indictment herein is dismissed. The Defendant is hereby released and discharged from all penalties and disabilities resulting from the proceedings against him.

SIGNED AND RENDERED on the ________day of _______________________________20________.

_______________________________________________________ JUDGE PRESIDING

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