Governor Greg Abbott reportedly did not want to make the 85th Legislature about criminal law reform, but the legislature made some major changes anyway. The 85th Texas Legislature created a variety of new criminal offenses and made important changes to other criminal law topic areas as well. 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.
IMPORTANT NEW OFFENSES FROM THE 85TH LEGISLATURE
- Electronic Data Tampering
- Unlawful Decryption
- Electronic Access Interference
- Texting While Driving
- Unregulated Custody Transfer of Adopted Child
- Engaging in Organized Election Fraud Activity
- Possession or Promotion of Lewd Visual Material Depicting Child
- Sexual Coercion
- Failure to Comply with Immigration Detainer Request
A disclaimer: the summaries below are intended to only give you a quick heads-up and point you in the right direction. They are not comprehensive analyses of the new laws, and since they are summaries, they tend to leave out many important aspects of each bill. If you’re interested in learning more, either look at the original bill or click on the link to a related article. Furthermore, some bills are skipped, either because they were nonsubstantive or would effect very few people.
The biggest new update is likely H.B. 3016, which will make it possible to get certain DWIs nondisclosed. The bill also made it possible to get certain convictions nondisclosed no matter when they occurred. Jump to the section about the nondisclosure updates
H.B. 9, entitled the “Texas Cybercrime Act,” adds three new offenses to the Penal Code and makes some changes to definitions in Chapter 33 of the Penal Code. The offenses created are: Electronic Access Interference, Electronic Data Tampering and Unlawful Decryption. These laws target “ransomware” and other malware as well as DDOS (distributed denial of service) attacks. The bill defines “ransomware” for purposes of prosecution under the new laws. These new laws are discussed in detail on each of their respective pages.
I am skeptical of the state’s ability to prosecute these crimes simply because of the resources required to investigate them. Only time will tell how much prosecution activity there will be in this area.
H.B. 29 amended the list of convictions requiring registration as a sex offender in Texas to include a subsection (c-1)(3) Prostitution offense and sex-related Continuous Trafficking of Persons crimes. The bill also made changes similar to H.B. 1808 (see below) with respect to awareness of the age of a child for statutory rape offenses. It also significantly changed the definition of the offense of Prostitution and added a definition of “fee” for the purposes of the Prostitution offense. The penalty for Promotion of Prostitution was increased to a default state jail felony, enhanceable to a third degree felony. The penalty for Aggravated Promotion of Prostitution was increased to a default second degree felony.
H.B. 62, entitled the Alex Brown Memorial Act amends portions of the Transportation Code, most notably creating a new statewide texting-while-driving ban. This new offense is called Use of Portable Wireless Communication Device for Electronic Messaging, and it will be codified at Sec. 545.4251 of the Transportation Code.1 The offense is a Class C misdemeanor with a maximum $99 fine ($200 for repeat offenders),2 unless the state’s attorneys convince a jury that you caused the death or serious bodily injury of another person, in which case it is a Class A misdemeanor.3 Why the punishment is incredibly less severe than the punishment for Intoxication Assault or Intoxication Manslaughter does not seem to make any sense to the author. The new offense is almost entirely unworkable with all of its affirmative defenses and exceptions.4 In any event, the new law takes effect September 1, 2017.5
Interestingly, H.B. 62 also adds the new texting-while-driving law to the list of non-arrestable offenses.
H.B. 557 deals with expunctions, updating Texas Code of Criminal Procedure Chapter 55. It makes some much-appreciated language changes to reflect that people who are acquitted are no longer defendants. It also clarifies that justice court and municipal judges may only expunge records relating to fine-only offenses in their own geographical jurisdiction. In true legislative fashion, there is also a fee increase to these Class C misdemeanor expunctions.
H.B. 683 amended the Misrepresentation of Property offense. The primary effect was the addition of vehicles to the types of property covered by this offense. It also added to the list of property covered by the offense any item that contains the word “police,” “sheriff,” “constable,” or “trooper.” Learn more about the changes to the this offense here
H.B. 810 deals with stem cell research. For the purposes of our criminal law analysis, it creates a criminal offense called Prohibition on Purchase and Sale of Adult Stem Cells for Certain Investigational Treatments. The law is basically what it sounds like, and thus means that if you’re trying to acquire stem cells you can’t pay for them. Learn more about Purchase and Sale of Adult Stem Cells for Certain Investigational Treatments
H.B. 834 creates laws regulating the custody transfer of an adopted child and creates one new criminal offense in the Penal Code called Unregulated Custody Transfer of Adopted Child. Learn more about this new offense here
H.B. 913 added “improvised explosive devices” to the list of prohibited weapons in the Section 46.05 Penal Code offense of Prohibited Weapons. The bill also added a definition for improvised explosive device and made additional changes to the Prohibited Weapons statute. Learn more about this change on our Prohibited Weapons page
H.B. 1249 creates a new Class C misdemeanor offense called Use of Certain External Motor Vehicle Markings or Features Prohibited; Criminal Offense, and it prohibits operating a vehicle that looks like an emergency medical services vehicle like an ambulance (unless of course the vehicle really is an emergency medical vehicle). This offense is a Class C misdemeanor and will be codified at Section 773.017 of the Health and Safety Code.
H.B. 1257 increases increases the punishment for Criminal Mischief when the property damaged is a “property used for flood control purposes or a dam.”6 Now, if the damaged property falls into this category, the minimum penalty for a Criminal Mischief conviction is a state jail felony. This law also takes effect September 1, 2017.7
H.B. 1424 prohibits drones from flying close to correctional facilities and sports venues. The bill amended the Government Code to add correctional facilities and detention facilities to the rules already applicable to critical infrastructure facilities in Section 423.0045(b). The bill also created a new offense called Offense: Operation of Unmanned Aircraft over Sports Venue, to be codified at Section 423.0046, Government Code. The new law defines sports venues as venues that have a seating capacity of at least 30,000 and are primarily used for one or more professional or amateur sports or athletics events.8 Just like the rules applicable to critical infrastructure facilities, the regulation prohibits the flying of drones lower than 400 feet above the sports venues.9 This new law is punished as a Class B misdemeanor, but there is a repeat-offender enhancement to Class A misdemeanor.10 This law also takes effect September 1, 2017.11
H.B. 1643 further modifies drone aircraft laws by expanding the list of places defined as critical infrastructure facilities.12 This law also takes effect September 1, 2017.13
Enhanced Penalties for Participating in Two Political Parties & Engaging in Organized Election Fraud Activity
H.B. 1735 makes multiple changes to the Texas Election Code with regard to election officers. The penalties for the offense of Unlawful Participation in Party Affairs, found in Section 162.014 of the Texas Election Code, have been increased under certain circumstances. While any violation of this law was previously a Class C misdemeanor, now there are two circumstances in which a violation can be a felony. Learn more about the changes to this law here
The bill also created a new offense called Engaging in Organized Election Fraud Activity. This law makes it illegal to conspire or commit one or more offenses under Titles 1 through 7 of the Election Code. Learn more about the new Engaging in Organized Election Fraud Activity offense here
Sexual Assault and Statutory Rape – language updates regarding awareness of age of victim and definition of consent
H.B. 1808 makes changes to the Trafficking of Persons offense, the Continuous Sexual Abuse of Young Child or Children offense and the Indecency with a Child offense in an attempt to clarify that someone who engages in the conduct constituting certain trafficking and sexual offenses commits an offense regardless of whether the actor knows the age of the accuser at the time of the offense. Similar changes were made to the offenses of Prostitution, Promotion of Prostitution, Aggravated Promotion of Prostitution, Compelling Prostitution, Child Sexual Assault and Employment Harmful to Children. This bill also adds the offense of Sexual Coercion, just like H.B. 2552, and adds coercion-like language to the definition of “without consent” for purposes of the Sexual Assault law. The law stopped short of requiring affirmative consent, towards which there was a push at the beginning of the session.
H.B. 1810 creates a new offense called Possession or Promotion of Lewd Visual Material Depicting Child. This offense resembles the federal offense of Obscene visual representations of the sexual abuse of children, but it also resembles Texas’s own law of Possession of Child Pornography. This offense raises serious constitutionality questions as the amount of photographs covered would put Snapchat out of business. Learn more about the new Possession or Promotion of Lewd Visual Material Depicting Child offense here
H.B. 1819 amends the Penal Code 46.05 Prohibited Weapons offense by clarifying that firearm silencers are not prohibited weapons under the statute so long as they are handled in compliance with federal law.14 H.B. 913 also made changes to the Prohibited Weapons offense. Learn more about this change on our Prohibited Weapons page
H.B. 1935 makes a host of changes to the regulation of knives under Chapter 46 of the Penal Code. The concept of an “illegal knife” has been scrapped. Instead, there is a new term called a location-restricted knife, defined in the new Penal Code Section 46.01 as any knife with a blade over 5.5 inches. While “illegal knives” included throwing knives, swords, spears and daggers, the new location-restricted knife definition does away with these descriptions and makes it a simple question of whether the blade is over 5.5 inches. The Unlawful Carrying Weapons offense is updated by removing all knives from regulation under that existing law, but it creates a new subsection (a-4) of the UCW offense that applies only to minors carrying location-restricted knives. Learn more about the Unlawful Carrying Weapons update here
H.B. 1935 also updated the Places Weapons Prohibited offense by updating the law to cover location-restricted knives instead of illegal knives and by creating an entirely new subsection (a-1) that prohibits the carrying of location-restricted knives in various location. Learn more about the changes to Places Weapons Prohibited here
H.B. 2529 expands coercion for purposes of Section 20A.02, Penal Code (Trafficking of Persons), to include the use of threats related to destroying or withholding government records and identification documents.15
H.B. 2552 creates a new criminal offense called Sexual Coercion in addition to many new civil laws that are supposedly designed to make it easier to attack massage parlors because the legislature believes massage parlors harbor sex traffickers. Learn more about the Sexual Coercion offense here
H.B. 2552 also adds a new way for an Assault conviction to be enhanced to a third degree felony. If the state’s attorney can prove to a jury that you assaulted a pregnant individual to force the individual to have an abortion, then an Assault conviction under Subsection (a)(1) is enhanced to a third degree felony.16
H.B. 2671 added several new drugs to the list of controlled substances. Those include adding Phenazepam, U-47700, AH-7921, ADB-FUBINACA, AMB-FUBINACA and MDMB-CHMICA to Penalty Group 1.17 Carisoprodol, Etizolam and Tramadol were added to the list of Penalty Group 3 offenses.18 More importantly, the bill closed the “Adderall Loophole” that prevented the conviction of Possession and Manufacture/Delivery of Penalty Group 2 drugs that were approved by the FDA by repealing Section 481.103(d), Health and Safety Code.19 This new law takes effect September 1, 2017.20
H.B. 2817 creates an additional enhancement in the Criminal Mischief law for using a weapon to “cause the death of one or more head of cattle or bison or one or more horses.” This is now by default a felony of the third degree, and the bill also makes an exception for you if you kill the livestock in the course of your military or agricultural duties.21
H.B. 2908 enacts the new police hate crime laws, adding peace officers and judges as a protected class by creating new enhancements for Unlawful Restraint, Assault, Terroristic Threat and Intoxication Assault. Now, when a peace officer is the alleged victim of one of these offenses, the state’s attorneys can add an enhancement to the charging instrument that, if proved, would substantially increase the penalty upon conviction.
H.B. 3016 made substantial and important changes to the Texas Nondisclosure laws. Probably the biggest change was made with respect to Nondisclosures of DWI cases. Before the passage of this law, there was no way to seal a DWI conviction, but now this is a possibility. The 84th Legislature introduced Nondisclosures for certain offenses even after conviction (where previously it was only available to people who had received deferred adjudication), but DWIs were specifically exempted. However, now there is a mechanism for getting certain (but not all) DWI convictions nondisclosed. Another important change extends the eligibility for orders of nondisclosure under the new eligibility categories created in 2015 to offenses regardless of the date of the offense, including dates prior to 2015. Learn more about the new nondisclosure rules here
H.B. 3019 expanded the group of people to whom the offense of Injury to a Child, Elderly Individual or Disabled Individual applies. The law now covers people who operate boarding home facilities,22 and the definition of disabled individuals now covers people who have a mental illness, as defined by Section 571.003, Health and Safety Code.23 The bill also swapped language referring to people with “mental retardation” for people with “intellectual or developmental disabilities.” Learn more about the updated Injury to a Child, Elderly Individual or Disabled Individual offense here
H.B. 3165 makes a few changes to pre-trial procedures, mostly having to do with allowing videoconferencing for magistrate hearings. The most important takeaway here is that defense counsel can request, and obtain after payment of a fee, a copy of the recording made (if one was made).24 The fee can be waived for indigent people. People are also now required to post a personal recognizance bond if they “dry writ.”25
S.B. 4 is the most controversial new law, having already received a tremendous amount of national press and is facing multiple lawsuits. This bill creates an offense called Failure to Comply with Immigration Detainer Request, to be codified at Penal Code 39.07. Learn more about this new offense here
In addition, S.B. 4 allows a peace officer to “inquire as to the nationality or immigration status of a victim of or witness to the offense only if the officer determines that the inquiry is necessary to: (1) investigate the offense; or (2) provide the victim or witness with information about federal visas designed to protect individuals providing assistance to law enforcement.”26 The constitutionality of this ability for officers to demand to see paperwork proving citizenship has been questioned in a major pending federal lawsuit.
Another major change implemented by S.B. 4 include a rule establishing that a surety may not be relieved of a bond in the event that someone is in federal custody on an immigration hold.27 This means that bondsmen will likely not post bonds for non-citizens without payment of the entire bond in full up front in cash, and they will likely require an additional fee.
Law enforcement agencies are now required to comply with federal immigration detainer requests at the expense of the local law enforcement agency.28 Judges also are now required, when sentencing someone to a secure correctional facility who has an immigration detainer request, “at the time of pronouncement of a sentence of confinement, [to] issue an order requiring the secure correctional facility in which the defendant is to be confined and all appropriate government officers, including a sheriff, a warden, or members of the Board of Pardons and Paroles, as appropriate, to require the defendant to serve in federal custody the final portion of the defendant’s sentence, not to exceed a period of seven days, following the facility’s or officer’s determination that the change in the place of confinement will facilitate the seamless transfer of the defendant into federal custody.”29
S.B. 7 expands the coverage of the offense of Improper Relationship Between Educator and Student. In addition, it creates a host of other laws (mostly in the Education Code) related to reducing the occurrence of sexual relationships between students and teachers, including penalties related to retirement benefits for teachers. A person convicted of offenses including Continuous Sexual Abuse of Young Child or Children, Improper Relationship Between Educator and Student and Sexual Assault will have their retirement benefits suspended,30 and a trial judge is required to make affirmative findings regarding this.31 A teaching certificate can now also be revoked upon receiving deferred adjudication for certain offenses.32 Learn more about the changes to the Improper Relationship Between Educator and Student offense here
S.B. 8 creates and amends a variety of laws related to abortions, including several criminal offenses related to abortion. Partial-birth abortions are prohibited and punished as state jail felonies in the new Subchapters F of Chapter 171 of the Health and Safety Code.33 Dismemberment abortions are prohibited and punished as state jail felonies in the new Subchapter G.34 Chapter 172 is added to the Health and Safety Code,35 the provisions of which include a new offense to solicit, accept or offer a woman money for an abortion for the purposes of acquiring fetal tissue.36
S.B. 179 creates a variety of laws related to “cyberbullying.” In addition to changes in the Education Code and the Civil Practice and Remedies Code, the Penal Code offense of Harassment was amended by expanding the covered types of electronic communication and by creating an enhancement to a Class A misdemeanor when the victim was under 18 or the actor had previously violated a restraining order. Learn more about the changes to the Harassment law here
S.B. 208 makes a variety of amendments to the Occupations Code, primarily regarding metal recycling facilities and storage of explosive devices. There are penalties for knowingly selling explosive devices to metal recycling facilities and for metal recycling facilities to knowingly buy and sell explosive devices.37
S.B. 343 amended Penal Code Section 39.04 (Violations of the Civil Rights of Person in Custody; Improper Sexual Activity with Person in Custody) to add adult community supervision officers to the list of people who are prohibited from having sexual relationships with the people that they supervise38
S.B. 524 increased the penalty for Abuse of Corpse to a state jail felony for all prosecutions except a subsection (a)(5) prosecution. Before September 1, 2017, this offense is a Class A misdemeanor in all circumstances.
S.B. 966 permits a minor to assert a defense to Consumption of Alcohol by Minor and Possession of Alcohol by Minor that he or she reported a sexual assault or was a victim of a sexual assault.40 What minors were getting prosecuted under these circumstances is unknown.
S.B. 998 extends the statute of limitations for prosecutions of the Exploitation of Child, Elderly Individual, or Disabled Individual under Section 32.53, Penal Code, to seven years.41 Interestingly, this bill was brought by the Dallas County District Attorney’s Office.
S.B. 1203 expands the list of entities covered by the expedited compliance required of internet service provides in responding to a subpoena, search warrant, and other court orders. The list now includes an “Internet service provider, search engine, web hosting company, web browsing company, manufacturer of devices providing online application platforms, or company providing online social media platforms.”42 In addition, the cases in which expedited compliance is now expanded to include Continuous Sexual Abuse of Young Child or Children, Indecency with a Child, Sexual Assault, Aggravated Sexual Assault, any human trafficking offense under Penal Code Chapter 20A and any prostitution offense under Chapter 43.43
S.B. 1232 creates a new Texas crime entitled Bestiality and makes gives judges the ability to add conditions to community supervision for people who are on probation for Bestiality.44 In addition, S.B. 1232 adds the Bestiality offense to the list of reportable offenses for purposes of sex offender registration.45 Learn more about the Bestiality offense here
S.B. 1649 amends the Criminal Trespass offense by creating an enhancement for convictions where the property involved is a university or other college campus.46 S.B. 1649 increases the penalty to a Class A misdemeanor when the property is that of an “institution of higher education” which is defined in the bill.47 The bill also creates a defense for the enhancement only. The bill says that the defendant may raise the issue as to whether, at the time of the instant offense or the previous offense, the defendant was engaging in speech or expressive conduct protected by the First Amendment to the United States Constitution or Section 8, Article I, Texas Constitution. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the enhancement does not apply.48 Learn more about the changes to Criminal Trespass law here
S.B. 1849, known as the Sandra Bland Act, ended up being a much more watered-down version of what was originally proposed. The bill gives jailers 72 hours after having received “credible information that may establish reasonable cause to believe that a defendant committed to the sheriff’s custody has a mental illness or is a person with an intellectual disability” to report this to a magistrate judge. Why this would take 72 hours to report is anyone’s guess.
Magistrates are allowed to release people with mental illness or intellectual disability on personal bonds.
Peace officers and jailers are required to undergo additional TCOLE training. Law enforcement agencies are directed to adopt new written policies regarding racial profiling to provide public education relating to the agency’s compliment and complaint process, including providing the telephone number, mailing address, and e-mail address to make a compliment or complaint with respect to each ticket, citation, or warning issued by a peace officer, rather than provide public education relating to the agency’s complaint process and require collection of information relating to motor vehicle stops in which a ticket, citation, or warning is issued and to arrests made as a result of those stops, including certain information. Other stop-related information must be collected and reported internally.
Sheriffs also have to make “good faith efforts” to divert people with mental illnesses to a treatment center, but they do not even have to do that under many circumstances. An independent law enforcement agency must now investigate deaths in county jails. The bill also attempts to provide some grant money for “community collaboratives.”
For criminal defense attorneys, probably the most important part of ths bill is that court clerks are required to deliver copies of indictments and complaints to us (or our clients) at the earliest possible time before trial (or after presentment of the indictment, if it is a felony).
Interestingly, this bill would not have done anything to help prevent the death of Sandra Bland.
Legal References (all 85th Texas Legislature):
1House Bill 62, Section 8
2House Bill 62, Section 8, creating Transportation Code Section 545.4251(e)
3House Bill 62, Section 8, creating Transportation Code Section 545.4251(f)
4House Bill 62, Section 8, creating Transportation Code Section 545.4251(c) & (d)
5House Bill 62, Section 10 & 11
6House Bill 1257, Section 1, amending Penal Code 28.03(b)(4)(D)(i)
7House Bill 1257, Sections 2-3
8House Bill 1424, Section 4, creating Government Code Section 423.0046(a)
9House Bill 1424, Section 4, creating Government Code Section 423.0046(b)
10House Bill 1424, Section 4, creating Government Code Section 423.0046(d)
11House Bill 1424, Sections 5-6
12House Bill 1643, Section 1
13House Bill 1643, Sections 4-5
14House Bill 1819, Section 1
15House Bill 2529, Section 1
16House Bill 2552, Section 18
17House Bill 2671, Section 1
18House Bill 2671, Section 2
19House Bill 2671, Section 3
20House Bill 2671, Sections 4-5
21House Bill 2817, Section 2
22House Bill 3019, Section 1
23House Bill 3019, Section 2
24House Bill 3165, Section 1
25House Bill 3165, Section 2
26Senate Bill 4, Article 6
27Senate Bill 4, Article 4
28Senate Bill 4, Article 2
29Senate Bill 4, Article 2
30Senate Bill 7, Section 17
31Senate Bill 7, Section 4
32Senate Bill 7, Sections 10-11
33Senate Bill 8, Section 6
34Senate Bill 8, Section 6
35Senate Bill 8, Section 6
36Senate Bill 8, Section 6
37Senate Bill 208, Section 4
38Senate Bill 343, Sections 2-3
39Senate Bill 762, Section 1
40Senate Bill 966, Sections 1-2
41Senate Bill 998, Section 1
42Senate Bill 1203, Section 2
43Senate Bill 1203, Section 1
44Senate Bill 1232, Section 2 & 4
45Senate Bill 1232, Section 5
46Senate Bill 1649, Section 2
47Senate Bill 1649, Section 1
48Senate Bill 1649, Section 2