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86th Legislative Session: Texas Criminal Law Update

Texas’s 86th Legislative Session in 2019 created several new criminal offenses and made important changes to some criminal procedures. Whether you are a criminal law practitioner or just want to know what the new laws are that apply to all of us Texans, you’ll want to take a few minutes to go over this update.

THIS ARTICLE IS STILL IN PROGRESS (as of July 2019)

A disclaimer: the information below is intended to only give you a brief summary and point you in the right direction. This article is not a comprehensive analysis of the new laws, and since this is a summary, many important aspects of each bill may not be addressed. If you’re interested in learning more, either look at the original bill or click on the link to a related article. This is also not a comprehensive update. We do not cover bills that may have been nonsubstantive, of extremely limited application, or were focused on law enforcement policy.

The biggest new update for criminal defense practitioners will likely be either HB 3582 or HB 1325. HB 3582 will allow certain DWI offenders to get deferred adjudication. Jump to the section about the new DWI Deferred law

HB 3582 legalizes hemp and its production, eliminating low-THC cannabis from the definition of marijuana.Jump to the section about the new Hemp laws

Extension of Certain Sex Assault Prosecution Limitation Periods

HB 81, entitled the “Lavinia Masters Act,” relates to the criminal statute of limitations for certain sex offenses and the collection, analysis, and preservation of evidence of sexual assault and other sex offenses. The law removes the statute of limitation for sex assault cases where biological matter has been collected but not yet subjected to testing. The bill also makes changes to how biological evidence must be handled by the state in sex assault investigations. Additionally, the statute authorizes “telehealth” Sexual Assault Nurse Examinations.

Born-Alive Abortion Offense

HB 162 relates to the enforcement of the rights of a living unborn child after an abortion, provides a civil penalty and creates a criminal offense.

Physicians who do not provide care for a child, born alive, after an attempted abortion may be found guilty of this new 3rd-degree felony offense.

Mail Theft Offense

HB 37 creates the new offense of Mail Theft. Learn more about the Mail Theft offense

Changes to Unlawful Disclosure of Intimate Visual Material

HB 98 makes amendments to the offense of Unlawful Disclosure of Intimate Visual Material. This offense has been criticized both as overbroad and difficult to prosecute. The legislature made some changes that will likely affect this. Learn more about the changes on our Unlawful Disclosure of Intimate Visual Material offense page

False Caller Identification Information Display

HB 101 creates an offense called False Caller Identification Information Display.

New Defenses to Trespass by Certain Persons Carrying Handguns

HB 121 creates a defense to prosecution for the offenses of Trespass by License Holder with a Concealed Handgun and Trespass by License Holder with an Openly Carried Handgun.

Occupational Driver’s License Supervision Changes

HB 156 allows judges who grant occupational licenses to assign personal bond offices the duty of supervising ODL holders.

Trespass Defenses

HB 302 adds defenses to prosecution under Penal Code Sections 30.05 (Criminal Trespass), 30.06 (Trespass by License Holder with a Concealed Handgun) and 30.07 (Trespass by License Holder with an Openly Carried Handgun). Click on the individual offense pages for more information.

New Penalties for Shoplifting by Switching a Price Tag

HB 427 amends the penalty scheme for prosecutions under Penal Code Sections 32.47 (Fraudulent Destruction, Removal, or Concealment of Writing) for Price Tag-switching.

Knuckles and Clubs are Removed from Weapons List

HB 446 makes amendments to Penal Code Sections 46.02 (Unlawful Carrying Weapons), 46.05 (Prohibited Weapons) and 46.15 (Nonapplicability Provisions). The bill removes “knuckles” from the Prohibited Weapons list and removes “clubs” from the UCW list.

The UCW offense will now only apply to handguns and “location-restricted knives.”

Incest Exceptions for Sexual Assault

HB 667 amends a defense to prosecution for Sexual Assault and penalty scheme by making exceptions for cases of incest. When Penal Code 25.02 (Prohibited Sexual Conduct) – the law against incest – applies to a sexual assault, the accused person is not allowed to raise the 3-year age difference defense, and the offense is prosecuted as a first degree felony.

Expansion of Organized Criminal Activity

HB 869 adds Penal Code Section 16.02 (Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications) to the list of offenses that may be prosecuted as a violation of Engaging in Organized Criminal Activity.

New Offense – Misrepresenting a Child as a Family Member at a Port of Entry

HB 888 creates a new offense called Misrepresenting a Child as a Family Member at a Port of Entry.

A Pregnancy Enhancement for Assault

HB 902 creates an enhancement to the Assault offense when the victim is pregnant.

Expanding the Disaster Area and Evacuated Area Penalty Enhancements

HB 1028 adds certain offenses, including Arson,Burglary of Coin-Operated or Coin Collection Machines, Burglary of Vehicles and Criminal Trespass, to the list of offenses that have enhanced penalties when committed in a disaster area or an evacuated area.

Hemp Cultivation to be Legalized

HB 1325 is a large bill that creates a variety of laws and regulations related to the production of Hemp in Texas. Criminal penalties are imposed for (1) altering a shipping certificate or cargo manifest (Sec. 122.055), (2) forging, falsifying, or altering the results of a laboratory test under the new law (Sec. 122.157) and (3) failing to comply with the documentation and shipping requirements (Sec. 122.360). All section references are to the Agriculture Code.

The biggest implication for this law, however, is that it results in a new definition of marihuana. “Marijuana,” for the purposes of Texas criminal law, will not include hemp. This will explicitly exclude low-THC cannabis. Learn more about the new definition of marihuana

Expanding Protective Orders and Improper Contact with Victims

HB 1343 creates laws related to improper contact with a victim and to protective orders for victims of certain offense.

Ending Some Driver’s License Surcharges and Expanding DWI Surcharges

HB 2048 eliminates the surcharge program under Texas Transportation Code 708. The “points” program is under this chapter is going away, and so licenses that are suspended based on this old program are to be reinstated beginning no September 1, 2019.

The bill also created new fines related to DWI convictions. The new fines are to be codified in Section 709, Transportation Code. The fines will be either $3,000, $4,500 or $6,000 depending on prior intoxication-related convictions and alcohol concentration levels. Learn more about the new fine structure on our DWI page

Mandatory Jail Time for Leaving the Scene of an Accident that Results in Death

HB 2502 creates a mandatory minimum jail stay for Failure to Render Aid (Fleeing the Scene of an Accident) resulting in death as a condition of probation. The new law requires judges to order a minimum of 120 days as a condition for all offenses shable under Section 550.021(c)(1)(A), Transportation Code.

Theft of Service related to Rental Property

HB 2524 amends the Theft of Service offense. Most of the changes have to do with the return of rental property and notice requirements. Learn more on the Theft of Service page

New Offense – Operation of Stash House

HB 2613 creates an offense called Operation of Stash House. Learn more about the Operation of Stash House offense

Expanding Credit Card Abuse Prosecutions

HB 2624 makes some changes to the Credit or Debit Card Abuse Laws regarding jurisdiction and the prosecution’s burden of proof.

New Offense – Fraudulent Use or Possession of Credit Card or Debit Card Information

HB 2625 creates an offense called Fraudulent Use or Possession of Credit Card or Debit Card Information. Learn more about the Fraudulent Use or Possession of Credit Card or Debit Card Information offense

Effective Consent in Fraudulent Use or Possession of Identifying Information Prosecutions

HB 2697 adds “or effective consent” to simple “consent” in Penal Code Section 32.51 (Fraudulent Use or Possession of Identifying Information).

Changes to Probation Eligibility for Trafficking, Indecency and Other Sex Crimes

HB 2758 adds (1) Section 20A.03, Penal Code (Continuous Trafficking of Persons) and (2) Section 43.04, Penal Code (Aggravated Promotion of Prostitution) to the list of offenses where judges are prohibited from granting community supervision. But the bill also allows some people who are convicted of PC 43.04 (Aggravated Promotion of Prostitution) and PC 43.05 (Compelling Prostitution) but are also considered victims of other offenses may receive probation.See the updated list of offenses where a judge may not recommend community supervision

The bill also prohibits juries from giving probation to people convicted of Indecency with a Child – Exposure, Continuous Trafficking of Persons and Aggravated Promotion of Prostitution. See the updated list of offenses where the jury can’t recommend probation

The bill prohibits deferred adjudication for Trafficking of Persons and Continuous Trafficking of Persons.See the updated list of offenses that are not eligible for deferred

Other changes to Chapter 42A were passed in HB 3582.

New Offense – Unlawful Electronic Transmission of Sexually Explicit Visual Material

HB 2789 creates a new offense called Unlawful Electronic Transmission of Sexually Explicit Visual Material.

Health Care Fraud Changes

HB 2894 makes is a relatively long new bill that makes changes to health care fraud laws. Many of the changes related to expanding the offense from “Medicare” fraud to the more general “health care” terminology.

Penal Code Chapter 35A is significantly revamped. Learn more on the Health Care Fraud page

Additional Enforcement of Payment Card Skimmers on Fuel Dispensers

HB 2945 creates criminal offenses related to a skimmers of payment card information on fuel dispensers. The new offenses will be found in Sec. 607.103, Government Code.

New Offense – Disclosure of Confidential Information Regarding Family Violence or Victims of Trafficking Shelter Center

HB 3091 creates a new Penal Code offense of Disclosure of Confidential Information Regarding Family Violence or Victims of Trafficking Shelter Center.

New Offenses – relating to Critical Infrastructure Facilities

HB 3557 creates several new laws related to “Critical Infrastructure Facilities.”

  • Damaging or Destroying Critical Infrastructure Facility.
  • Impairing or Interrupting Operation of Critical Infrastructure Facilities
  • Intent to Damage or Destroy Critical Infrastructure Facility
  • Intent to Impair or Interrupt Operation of Critical Infrastructure
  • Facility

Fines for corporation who violate these new laws are subject to a $500,000 fine.

In my opinion, these laws are of dubious constitutional applicability. I fully expect them to be challenged in court.

DWI Deferred Adjudication

HB 3582 allows people charged with DWI 1st to receive deferred adjudication community supervision under certain circumstances. There are mandatory interlock provisions unless the judge makes a particular finding, and DWI deferred will count against people for purposes of enhancement. Learn more about the new DWI Deferred eligibility on our DWI Probation page

This new bill also adds DWI with Child to the list of prior offenses that may be used to enhance under PC 49.09 (the repeat DWI enhancement).

Additionally, it slightly changes the Nondisclosure scheme that the legislature came up with in 2017 in the 85th Texas Legislature. It now specifies how DWI Deferred cases will be treated in the nondisclosure arena. We will be updating the Nondisclosure page as the new law comes closer to being in effect.

Prostitution Updates & New Offenses

SB 20 makes various updates related to prostitution and sex trafficking-related offenses.

“Stacking” of Continuous Trafficking of Persons will be expressly allowed.

Class B and certain State Jail Prostitution convictions will require mandatory community supervision unless a jury does not recommend it.

The penalty scheme for Prostitution offenses will change significantly. For more information, visit the Prostitution offense page. There is a change to the reportable conviction section, but is simply a conforming change due to the renumbering of the Prostitution penalty section.

These new offenses are also added to the Trafficking of Persons offense scheme.

There is now also an opportunity for “victims” of Trafficking Offenses who are themselves convicted of these offenses to nondisclose their records if they also give assistance to law enforcement.

Hazing Update

SB 38 makes significant changes to the state’s law against Hazing.

New Offense – Indecent Assault

SB 194 creates a new offense called Indecent Assault. The behavior targeted in this law would have been classified as a Class C Assault passage of this bill. Indecent Assault is now a Class A misdemeanor.

More Expansion the Disaster Area and Evacuated Area Penalty Enhancements

SB 201 makes similar changes as HB 1028 in expanding the list of offenses that may have increased penalties if committed in disaster or evacuation areas.

Money Laundering Digital Currency

SB 207 adds digital currencies to the list of covered currencies under the state’s Money Laundering offense.

Adding Corrections Officers and Jailers to Penal Code 37.08

SB 405 amends Penal Code Section 37.08 (False Report to Peace Officer, Federal Special Investigator, or Law Enforcement Employee) by adding corrections officers and jailers to its coverage list.

Expansion of Capital Murder

SB 719, entitled “Lauren’s Law,” makes changes to the Capital Murder punishment scheme in Texas. The murder of a person between 10 years old and 15 years old is now added to the list of offenses that are considered Capital Murder in Texas. However, the law also limits the state from seeking the death penalty for capital cases where that is the sole aggravating factor.

New Offense: Deep Fake Election Videos

SB 751 prohibits “Deep Fake” videos from being published within 30 days of an election. This new law is not written particularly carefully, and I believe it’s over-expansive with respect to its definition of deep fake videos.

Limited Liability Companies are Now the Same as Other Business Entities under the Code of Criminal Procedure

SB 1258 adds limited liability companies (LLCs) to the same lists that corporations and other business entities are on with respect to criminal prosecutions in the Code of Criminal Procedure. They were conspicuously absent before this law.

Sexual Assault by Assisted Reproduction

SB 1259 creates a 22.011(e)(12) sexual assault category, for instances where a health care professional uses human reproductive material from a donor knowing that the other person has not expressly consented to the use of material from that donor. The limitations period for prosecution of Sexual Assault under 22.011(f)(2) is 2 years from the date the offense was discovered. Learn more on our sexual assault page

New Offense: Delivery of Alcohol to Intoxicated Person

SB 1450 creates a new offense that makes it illegal to “with criminal negligence delivers for commercial purposes an alcoholic beverage to an intoxicated person.”

No Intention to Harm Needed for 38.14 Convictions

SB 1754 amends Penal Code Section 38.14 (Taking or Attempting to Take Weapon From Peace Officer, Federal Special Investigator, Employee or Official of Correctional Facility, Parole Officer, Community Supervision and Corrections Department Officer, or Commissioned Security Officer) by removing the “intention to harm” element.

Nondisclosure for Victim/Perpetrators of Sex Offenses

SB 1801 amends nondisclosure procedures for people who are considered victims of certain sex and trafficking offenses. More changes were made in SB 20. We will be adding more information on our Nondisclosure page

Expanding and Increasing Penalties for Various Sex Offenses

SB 1802 adds Aggravated Promotion of Prostitution to the list of reportable offenses, expands the definition of “coercion” for Trafficking offenses, increases the penalties for Compelling Prostitution, Promotion of Prostitution and Aggravated Promotion of Prostitution, expands the definition of Compelling Prostitution to include “coercion.” We have more on all of these changes on the respective offense pages.

Impersonating Public Servant Technical Changes

SB 1820 amends Penal Code Section 37.11 (Impersonating Public Servant) by making what appear to be effectively nonsubstantive changes.

Legal References:

1 HB 8, 86th Texas Legislature

2 HB 16, 86th Texas Legislature

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