Articles Posted in Texas Laws

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The Dallas Court of Appeals recently upheld a Rockwall County kidnapping conviction. Let’s look at the laws regarding kidnapping in Texas, and discuss the facts that led to the courts decision. Here’s the case- Wilson vs. State of Texas-  I usually go through all the facts of the case, but this one has a really weird fact pattern, and I think that’s why the defendant got probation. It just not what you think of when you think of a kidnapping. So I’m going to skip it so we can cover some other areas.

First, what’s the law on kidnapping in Texas? 

Good questions, let’s go to the opinion-

A person commits the offense of kidnapping if he intentionally or knowingly abducts another person. TEX. PENAL CODE ANN. § 20.03(a) (West 2011). “Abduct” means to restrain a person with intent to prevent his liberation by secreting or holding him in a place where he is not likely to be found or using or threatening to use deadly force. Id. § 20.01(2). “Restrain” means to restrict a person’s movements without consent, so as to interfere substantially with the person’s liberty, by moving the person from one place to another or by confining the person. Id.  20.01(1). Restraint is “without consent” if it is accomplished by force, intimidation, or deception. Id. § 20.01(1)(A)

Let’s see how this works in a facual insufficiency challenge. Factuall insufficiency is one claim you can make when you appeal a criminal conviction. Basically, you are saying that there isn’t enough evidence to sustain a conviction and you want the appellate court to review the facts of the case. But this is Texas and the game is rigged so that the State wins. Don’t believe me? Here’s the standard courts use to review the facts that lead to a conviction.

Here is the standard courts use for factual sufficiency reviews on appeal. From the opinion-

The only relevant standard when reviewing the sufficiency of the evidence is the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). See Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011). In determining the sufficiency of the evidence, an appellate court is to consider all evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. We defer to the factfinder’s determinations of the witnesses’ credibility and the weight to be given their testimony, because the factfinder is the sole judge of
those matters. Id. at 326.

Notice what the don’t mention? Whether there is a chance the defendant is innocent? Whether the evidence could lead to a wrongful conviction. Whether any weight should be given to the defendant’s case, and finally there is no mention of whether there are reasonable doubts in a case. It’s a fake review with a predetermined outcome, the State wins. This is one reason we convict so many innocent people, because our appellate courts refuse to look for reasonable doubts in a case, or apply the same scrutiny to criminal convictions, that they apply when a jury awards a judgment against a corporation.

 

 

 

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If there is one thing law enforcement hates, it’s the 4th Amendment’s requirement to get a warrant before searching. The reason? Warrants require an officer to have probable cause, and to explain said probable cause (in writing) before getting what they want (searching your house, stealing your blood etc). Warrants provide some degree of accountability for LEO, a very minor check on the almost limitless power of the State. Today let’s talk about searching your body, specifically your veins. In our DWI police state your blood is merely another piece of evidence for the State to gather, and they will hold you down GITMO style to do so.

The Supreme Court recently decided a case called McNeely vs. Missouri, which upheld the controversial position that holding down a DWI suspect and taking his blood without consent is a search, and a warrant is required unless there is some kind of emergency. I say this in controversial because a) prosecutors and law enforcement hate this idea and b) the Constitution usually doesn’t apply to DWI suspects.

So the Supreme Court rules on this blood search issue and now it’s up to Texas’ appellate courts to uphold this Constitutional safeguard. The problem is our appellate courts are largely pro-conviction police-state judicial activists who want the Government to win on appeal. Don’t believe me, today’s case of the day is Reeder Vs State from the Texarkana Court of Appeals.

What happened?

Reeder had two prior DWI convictions, and was being arrested for a DWI 3rd. The officer asked for Reeder’s blood, and Reeder said no. The officer took his blood anyway, without consent or a warrant. Reeder appealed citing the Supreme Court decision in McNeely which says you can’t do that, because 4th Amendment.

A little background here, Texas has an “implied consent” law that says everyone who drives gives up their 4th Amendment Rights  and “consents” to police searches in DWI cases. No shit, it really says that. You can revoke your “consent”, but then the State can take your license, which in a state like Texas where you must drive to get anywhere, is a big deal. The implied consent law also says that the police must take a sample in repeat DWI cases, even if you say no. You can find all this in the Texas Transportation Code Section 724.

What are the issues?

Does the 4th Amendment apply in Texas? Can a transportation code statute overrule the United States Constitution? Can a Texas court of appeals ignore the Supreme Court?

Holding-

The Texas Transportation Code is an exception to the 4th Amendment. Really. From the opinion.

Because Reeder’s blood specimen was obtained in compliance with Section 724.012(b)(3)(B) of the Texas Transportation Code, a warrant was not required. The trial court’s refusal to suppress the blood-draw evidence was proper.

I’m wondering if any of the judges who authored this opinion actually read McNeely vs Missouri. Because the McNeely case was an implied consent case. McNeely was asked for his blood and he said no, the officer took it anyway. If implied consent laws were somehow an exception to the Constitution, then the Supreme Court could have easily upheld the conviction in McNeely.

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When I first started DWI defense lawyering blood draws were pretty rare in DWI cases, but today they are becoming more common with the “no refusal” weekends etc. This has caused some problems as far the ALR/driver license suspensions are concerned. How does a blood draw affect your drivers license? Let’s take a look.

When Texas set up the ALR hearing system to suspend drivers licenses after DWI arrests they had breath tests in mind. That is, the State would know the bac result from the breath test at the time the defendant was arrested, so if the defendant failed, then the cops would notify DPS to suspend their license.

The law in Texas states that after being arrested you have 15 days to call DPS and ask for an ALR hearing to challenge your license suspension. If you don’t request a hearing, then your license will be suspended after 40 days (from the date of arrest). If you do request a hearing within 15 days your license is good until the hearing and then only if the judge rules against you (which usually happens, the ALR game is rigged so that DPS usually wins, because tuff on crime).

With a blood test we don’t know the result right away, and we may not know the result for months. DPS is backlogged with blood cases, and their labs aren’t not for quality work so rushing them will only make it worse.  DPS can only try to suspend your license if you are over .08. So when our firm requests an ALR hearing on a blood case we usually get a letter back stating there is no case against our client. Why? Because they don’t have the blood results in.

Once DPS gets the blood result in and decides to suspend a suspect’s license, they send the notice to the suspect, not to the lawyer. Why? Because they are hoping that a DWI suspect will throw the notice in the trash, and they know that our firm will request a hearing to fight the suspension.

DPS should not be sending notice to individuals who have legal counsel. My firm does not contact individuals when we know they are represented by counsel, it’s unethical. But the usual ethical rules don’t constrain DPS, they make a lot of money suspending licenses, so if they need to cheat to win, they will.

So, if the cops took your blood and you hired a DWI lawyer check your mail for letters from DPS. If you receive notice that DPS is moving forward with a license suspension notify you must immediately contact your lawyer. The letter won’t look like anything special, so be vigilant and don’t be a victim of DPS blood draw ALR scheme.

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Some prosecutors will seek to punish a Defendant who demands a trial and start digging through the case to find an “enhancement” (enhancement increase the possible sentence or limit parole etc). This is more common for Defendants with lengthy criminal histories, but some prosecutors apply this approach to anyone who dares seek a jury trial.

For example, a prosecutor may try to enhance certain felony cases because the county did not receive enough rain last year and was declared a disaster area. Our laws are so poorly written, and prosecuting in Texas is so poorly regulated, that these revenge charge enhancements (or trial penalties) are easy to come by if a prosecutor is so inclined. There is literally no risk to the State for piling on new charges or enhancements on every Defendant who seeks a trial.

This leads us to our case of the day-

MARK RANDALL BRISTER V. THE STATE OF TEXAS

Mark was charged with a felony DWI in Orange County. Mark had two prior DWIs, and two prior felony trips, which mean Mark was “high bitched” as they say in defense circles. That means Mark is looking at 25-99 years in the penitentiary for being a habitual offender. The factual recitation from the court’s opinion makes it sound like Mark was intoxicated. So we’ll assume he’s guilty of DWI. Mark was found guilty and given a 40 year sentence.

Deadly Weapon Allegations

Mark’s case was further enhanced by a deadly weapon allegation. What is a deadly weapon allegation? Well, it was intended as a way to punish people who use guns and weapons to commit crimes. But it has morphed into an “anything is a deadly weapon” provision in Texas. You name it, and it can be a deadly weapon. There is no actual “weapon” required either. That’s how we got to the point of having cars become deadly weapons. I mean if you are trying to ram someone with a vehicle then it is a weapon. So maybe that happened here right? Maybe Mark was trying to intentionally kill someone with his car right? And the police or another witness saw him do this?

Let’s look at the law first. This is from the opinion.

To establish a deadly-weapon finding, the State must demonstrate that: (1) the object was something that in the manner of its use or intended use was capable of causing death or serious bodily injury; (2) the weapon was used or exhibited during the transaction from which the felony conviction was obtained; and (3) other people were actually endangered. Drichas v. State, 175 S.W.3d 795, 797 (Tex. Crim. App. 2005); see also Garza v. State, 298 S.W.3d 837, 843 (Tex. App.—Amarillo 2009, no pet.) (citing Cates, 102 S.W.3d at 738).

Ok. So since DWI is a felony, and a car is used in a DWI, then all cars are now deadly weapons in felony DWI cases? That doesn’t sound right. Let’s look at some case law.

From the opinion-

In Drichas, the Texas Court of Criminal Appeals described the type of evidence needed to support a deadly-weapon finding. See id. at 799. The Court wrote that the statute “does not require pursuing police officers or other motorists to be in a zone of danger, take evasive action, or require appellant to intentionally strike another vehicle[.]” Id. “The volume of traffic on the road is relevant only if no traffic exists.” Id. “Capability is evaluated based on the circumstances that existed at the time of the offense.” Id. The Court explained that “a deadly weapon finding is appropriate on a sufficient showing of actual danger, such as evidence that another motorist was on the highway at the same time and place as the defendant when the defendant drove in a dangerous manner.” Id.

You don’t have to show that the court was used as a weapon, or that the driver tried to strike someone. So what did Mark do with his car to deserve this enhancement? Answer: He’s a guy with a bad criminal record who asked for a trial. Maybe I’m cynical, let’s see what evidence the State had to show Mark used his car as a deadly weapon.

From the opinion-

According to Officer Warner, there were “[v]ery few, if any, cars on the roadway[]” at that time of night. Officer Warner did not recall how long he had followed Brister before he observed the traffic violation. The patrol car was equipped with a video recorder that was set to automatically record through the front windshield of the patrol car whenever the officer activated his emergency lights. However, Officer Warner testified the equipment failed during this particular traffic stop. Officer Warner testified that Brister crossed over the center line only one time. At all times after Officer Warner activated his emergency lights, he observed Brister drive in a single lane and come to a stop in a normal distance in a convenience store parking lot. The officer characterized
Brister’s driving from the time he activated his emergency lights until Brister stopped as “normal driving.”

So Mark drove normally, and the video equipment “failed” so we will never really know what happened. Nice. You may not be surprised how often DWI videos go “missing” in cases because equipment “malfunctions”. So we sentence a guy to 40 years in jail without the only objective piece of evidence of his driving. Typical for Texas.

Let’s go back to the deadly weapon allegation. Mark drove over the center line one time, which is really nothing. Some cops consider one tire touching the center line “going over”, so that doesn’t tell us anything. What is telling is that the Officer testified Mark was driving normally. Normal driving gets you a deadly weapon enhancement in Texas. And why not? What does it cost the prosecutor to pile this on a defendant? Nothing. Mark doesn’t sound like a great guy. Multiple DWIs, multiple felony convictions. So who cares about him?

Guess what? The same vague and inane laws that let the State file a nonsense enhancement in this case will let prosecutors do that in a case involving someone with no criminal history. The State can file these enhancement against the innocent as well. Nothing protects you from overreaching by the State.

Holding- Or, why did the State lose on this issue? 

From the opinion-

In Cates, the Court of Criminal Appeals reversed a jury’s deadly weapon finding on a conviction for failing to stop and render aid. 102 S.W.3d at 738-39. Noting that the gravamen of that offense is leaving the scene of the accident, the Court found the evidence showed there was no other traffic on the roadway at the time Cates left the scene, the vehicle never left the roadway, and there was no evidence offered by the State that anyone was actually endangered by the vehicle while it left the scene. Id. at 738. “To sustain a deadly weapon finding requires evidence that others were endangered, and not merely a hypothetical potential for danger if others had been present.” Mann v. State, 13 S.W.3d 89, 92 (Tex. App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001)…

The State failed to present evidence from which a reasonable jury could conclude beyond a reasonable doubt that people were actually endangered by Brister’s operation of the vehicle during
the offense. See Foley, 327 S.W.3d at 917; Drichas, 175 S.W.3d at 798. T

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Eric Holder has given a tentative green light for State recreational marijuana programs to go forward. Given how the last medical marijuana memo has been largely ignored, I’m still a little pessimistic the DOJ will really leave these States alone. Regardless, here are ten reasons Texas should take this opportunity to reform our State’s marijuana laws. As a reminder, possession of any usable amount of marihuana is a 180-days-in-county-jail misdemeanor in Texas. I know, we are insane about weed in the Lone Star State, but it doesn’t have to be this way. On to the list.

1. Willie Nelson. Are we really going to keep arresting Willie? Really? What kind of asshole arrests Willie Nelson for pot. If this was my only reason, it would be enough.

2. It’s safer than booze. Texans drink a lot. Booze kills people. Weed can’t kill you.

3. Limited Government. Freedom. Personal Responsibility. Every GOP candidate runs on these issues. Government isn’t limited if we are trying to arrest every single person for the crime of having some dried up plant material in their pocket. Freedom means the freedom to make adult choices without fear of arrest. And persons can be very responsible while stoned. Especially if you have a Lord of the Rings Trilogy for them to watch.

4. Young Adults. Young adults make terrible criminals; they confess that they have pot in their pocket, they consent to searches, they let their car smell like weed. Typical rookie mistakes. They are a very honest and trusting group, so they tell Officer Friendly about the joint in the console. Sometimes the cool police officers will let them go, but too often we throw college kids in jail with real criminals and then put them on probation.

Could you have handled probation at 19? Drug tests, reporting monthly, thousands in fees and fines? Worse, we give too many young adults a lifetime criminal record, a “drug conviction” that ruins their future. I’ve seen this first hand and it’s an incredibly shitty thing to do.

5. People are going to move to Colorado. I tell a lot of my cannabis clients to move to Colorado because they have legalized recreational and medicinal marijuana. Colorado already has better weather than Texas, beautiful mountains, and no Greg Abbott.

Do we really need to give Texans another reason to bail on the oppressive heat and oppressive political regime here? Guess what, I’ve had a lot of “normal” marijuana clients come through my office. The kind of people you want living, working, and paying taxes here. The fact we threaten every joint owner in the State with 6 months in jail is a strong incentive for them to consider putting Texas in the rearview mirror.

6. Marijuana is medicine. The debate is over. Get over it. Adults need it, we have discovered that cannabis can help children as well. Fun fact- The Federal Government has a patent on medical pot, and the federal government has sent this guy over 130,000 joints for him to use as medicine.

Would you arrest these parents? In Texas, we would. Which brings me to my next point.

7. CPS is insane about marijuana. CPS will remove children and throw them into foster care if they find out the parents smoke weed. CPS can be crazy about pot, and the law gives them near unlimited authority to take your children if you use cannabis.

8. Opportunity Costs- Weed cases are a make work project for the criminal justice system. They provide zero public safety benefit. We waste millions in tax dollars, arresting, trying, and incarcerating pot smokers. At the same time we let real crime, that is, crime with victims, go unsolved. Instead of clogging the system with junk cases, we could free officers to investigate real crime.

9. What do George W., Barack Obama, and Bill Clinton have in common? That’s right, they loved the ganja and they didn’t get caught. We can’t even elect a President who hasn’t gotten high. That’s how you know a crime isn’t a real crime, when Presidential candidates can admit to it with impunity. Think if all 3 had admitted to theft, or assault? See, those are real crimes.

10. It’s inevitable. I’m tired of Texas being bassackwards when it comes to freedom. Why do we have to be last when it comes to legalizing adult behaviors. We still can’t gamble in Texas. Think about it, throwing dice on a table is too much freedom for our pols. We still have dry freaking counties. It’s embarrassing how much government we have in our lives. Cannabis reform would make us look less insane to the rest of the world. This isn’t Saudi Arabia or China, we are supposed to be free here. Why do we have to be last to embrace common sense reforms?

Finally, I’ll leave you with this- Weed is legal in North Korea, but not in Texas. We should have at least as much freedom as North Koreans.

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DMN reports on the ongoing battle of Uber vs. the local taxi cartel. Uber is an app that lets you quickly connect to a taxi cab. It’s easy to use and has quickly gained a following in major cities across the US. Unfortunately for Uber their program is a threat to the Dallas taxi cartel. Instead of learning to compete with Uber and offer a better service, the Dallas Taxi Cartel is seeking to cash in on their influence and make Uber illegal. That’s right, of all the problems we have in Dallas the City Council is wasting time trying to make a taxi app illegal.

Why would the powers that be entertain such an idea. Easy? The Taxi Cartel makes profits by limiting competition. The cab companies uses these profits to “influence” council members and lobby for more anti-competitive regulations. For example, Dallas has an artificial limit on the number of taxis, this means the market can’t respond to demand and the consumer pays more.

So how much influence does the Taxi Cartel have in Dallas? DPD sent the vice out to arrest cab drivers who offered rides through Uber. Read that again, arrest cab drivers for the “crime” of giving rides to people who use an app. Fortunately for Dallas citizens the Vice Squad enforces mostly consensual crimes like prostitution, so their absence isn’t much of a threat to public safety.

Now for a DWI angle, this is a defense blog after all. Whenever someone wants to pass a liberty destroying law they usually invoke the “if it saves one life” fallacy, the idea that hypothetically saving one life is worth any cost to a free society. What you don’t see is the same concern for Uber’s taxi app. There is a great possibility that more cab rides will equate to less drinking drivers. Dallas has some public transportation, but not enough to serve everyone who drinks. Anything that breaks down the barriers between cab and drinking driver could make the roads. And in this context restraining city government will save lives. So why isn’t the City Council embracing Uber?

The longer I practice law the more I see Texas alcohol related fatality number as a result of bad choices by government at all levels. From our inane zoning laws that zone bars far away from homes, to the dearth of public transportation, to restricting apps like Uber. DWI employs a lot of government workers. Entire industries (interlock) are built on the fact that Texas is designed to maximize the need for drinkers to drive. The State and local government makes millions in fines, fees, and surcharges. I’m not sure the State really wants to reduce drinking and driving, they have too much riding on the status quo. Uber is a threat to that system, and that trumps all other concerns. Dallas is The Wire.

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Tom Pauken is running for Governor of Texas. He’s nearly identical to Greg Abbott in every way, except Greg Abbott has a lot more money. Tom’s trying to differentiate himself so he recently took to Facebook to tout himself as a supporter of veterans.

Tom was asked if he would support allowing veterans to use medical marijuana, or if he wanted to continue to have them arrested. At first Tom just deleted the comments. (He banned me from his page and removed all my comments).

Finally Tom’s inability to answer this question became really embarrassing so he let loose fired off the answer below. Now remember what the question was; Tom Pauken, who allegedly really loves veterans, was asked if should we arrest veterans who use medical marijuana. Tom’s answer-

Obviously, a lot of people have come on this site to promote their position in favor of legalization of marijuana. While I am a businessman now, I was a young attorney in the 1970s who represented a lot of young people who had gotten themselves involved in illegal drug use. I generally was able to get them deferred adjudication and get the charge wiped off their permanent records. But I saw a lot of young people trapped in the drug culture and heading for a dead end on the career front. Doing drugs became their primary interest in life. It dominated their being. I was proud to help implement the successful Just Say No to Drugs campaign in the Reagan Administration which discouraged young people from getting involved in illegal drugs in the first place. It worked for awhile. Whatever one’s view on drug policy, young people who get into the drug culture are missing the opportunities for some great paying jobs and good careers because they can’t pass a drug test.

First, this answer highlights a typical non-answer to the medical marijuana question by authoritarian politicians. Here is your political lesson for the day, whenever someone lumps medical marijuana into the scary catch-all phrase “drugs”, that’s usually a sign they never got beyond a 4th grade DARE level understanding of the issue. You see our federal government classifies marijuana, even medical marijuana, in the same category as heroin, Schedule 1. This makes it easy for people like Tom to dismiss the idea out of hand because pot is DRUGS, just like heroin!

Let’s look at another part of his answer. Tom doesn’t want to “young people” to “get involved” with “illegal drugs” or “drug culture”. BTW, who says “drug culture” anymore? Does that include beer, we have a beer culture in Texas, but I digress.

Tom, the reason marijuana is an “illegal drug” is because of people like you. It’s less dangerous than alcohol. The reason that people lose jobs because of drug tests, is because people like you mandate and/or support drug testing and made cannabis illegal in the first place. The worst side effects of marijuana use are from the Government, not the plant. We can remove cannabis from the spooky “drug culture” by normalizing the sale of recreational and medicinal cannabis products.

Tom’s answer also touts his defense lawyer credentials. I was a prosecutor and now I defend people from the failed policies of politicians like Tom. I’ve represented veterans for possessing weed, and it’s an insult to their sacrifice that we throw them into our State’s broken criminal justice system. The injustice is multiplied if they are medical marijuana patients. If a veteran needs to smoke a joint because his doctor says it will help his PTSD he deserves our compassion and support, not jail.

I’m assuming the expunction laws were different when Tom practiced law. Today deferred cases can not be expunged, or “wiped off” your “permanent record”, they can only be non-disclosed, which means some record of the case still exists and can be used by the government to discriminate against you.

So let’s get Tom’s position on the record. Tom wants to help veterans by arresting them if they use medical marijuana. This brings me to my final point. GOP candidates like Tom need to quit tossing around phrases like “freedom” and “limited government” before they lose all meaning. To Tom (and other authoritarians) freedom means the freedom to live exactly as Tom lives his life. The freedom to make all the same choices Tom has, and if you make a different choice then you go to jail. And that’s the freedom Tom wants for our State’s veterans who use medical marijuana, the freedom to go to jail for making a choice Tom doesn’t agree with.

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Texas has a lot of terrible laws, but one thing we don’t allow is DWI checkpoints. The Supreme Court has decided that these can be constitutional but the state legislature must approve them. Hopefully ours never will. In case you ever think they are a good idea, here is what we are missing.

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I used to live in Ellis County and I had a few criminal cases there. Not as many as I had in Kaufman and Dallas, but enough that I quickly learned the Ellis County District Attorney’s had little regard for justice or preventing wrongful convictions. Why? They had a closed file policy.

Here’s how it went. Client would hire me for a DWI or weed case. I’d go to court and ask for a copy of the police report. I’d be told that they could read it to me (no seriously, they would say this), or sometimes even let me read it. But if I wanted a copy then I would have to file a discovery motion and then they would withdraw all plea offers and force my client to trial. So basically they set up a closed file system to bully defendants into pleading guilty without looking at the evidence. It worked sometimes, clients may not want a jury trial and they may not even want a pre trial hearing, they may just want a plea bargain, but it’s hard to negotiate when you don’t know anything about the case. The ADA would usually say something like “well, you can ask your client what happened.” That’s cute, your officer has the ability to stop and take notes, review the video tape, speak to witnesses at the scene. My client is in handcuffs and can’t record anything, so yeah, thanks for the great advice.

I thought this closed file policy was ethically dubious. The prosecutor, by hiding all evidence, was asserting that nothing in their file was exculpatory (Brady material), which they had a duty to disclose. Of course, these ADA’s seemed to think nothing was exculpatory, in a Ken Anderson way. The closed file policy also showed a complete lack of confidence in local law enforcement’s ability to investigate and document suspected criminal activity.

I don’t currently take new criminal cases in Ellis County, and they may have changed the policy since I left, but if they haven’t it doesn’t matter. Governor Perry recently signed the Michael Morton act, which requires prosecutors to turn over evidence to the defendant. The hope is that we can maybe slow down the wrongful conviction machine we have set up with more disclosure. I’m hopeful.

What does the Michael act require? Basically, the State has to turn over what the evidence that is relevant to the case. I know, a pretty radical idea. The State can’t try a defendant with secret evidence anymore. People who don’t interact much with the criminal justice system probably thought that was already the law, but it’s not, at least not until January 1, 2014.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. This Act shall be known as the Michael Morton Act.

SECTION 2. Article 39.14, Code of Criminal Procedure, is amended by amending Subsection (a) and adding Subsections (c) through (n) to read as follows:
(a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall [Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to] produce and permit the inspection and the electronic duplication, copying, and [or] photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements [statement] of the defendant or a witness, including witness statements of law enforcement officers but not including[, (except written statements of witnesses and except] the work product of counsel for the state in the case and their investigators and their notes or report[)], or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that[, which] constitute or contain evidence material to any matter involved in the action and that [which] are in the possession, custody, or control of the state or any person under contract with the state [State or any of its agencies]. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The [order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the] rights granted to the defendant under this article do [herein granted shall] not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize [State or any of its agents or representatives or employees. Nothing in this Act shall authorize] the removal of the documents, items, or information [such evidence] from the possession of the state [State], and any inspection shall be in the presence of a representative of the state [State].

(c) If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.

(d) In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and review the document, item, or information but is not required to allow electronic duplication as described by Subsection (a).

(e) Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials, or witness statements received from the state under this article unless:

(1) a court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interests of any victim or witness; or
(2) the documents, evidence, materials, or witness statements have already been publicly disclosed.

(f) The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’s own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

(g) Nothing in this section shall be interpreted to limit an attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver’s license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint.

(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

(i) The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.

(j) Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.

(k) If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

(l) A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.

(m) To the extent of any conflict, this article prevails over Chapter 552, Government Code.

(n) This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.

SECTION 3. The change in law made by this Act applies to the prosecution of an offense committed on or after the effective date of this Act. The prosecution of an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

SECTION 4. This Act takes effect January 1, 2014.