Bills That Rebuild Confidence in the Criminal Justice System & Ensure Innocent Individuals Are Not Sent to Prison
For several years, Texas has prided itself in being ‘tough on crime.’ Though we understand (and support) punishment for individuals who are an accessory to felony cases, we believe that the Texas Department of Criminal Justice needs to implement fair sentencing terms for all individuals. We need to ask ourselves, “Does the punishment fit the crime?”
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CSHB 111 [Pena, Hodge]: Relating to the joint or separate prosecution of a capital felony charged against two or more defendants.
Analysis: Prevent defendants who usually have very different culpability levels (i.e., the person who is accused of killing and the other who might have been a party to it) from being found guilty of a capital offense by association.
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HB 1199 [Turner, S.]: Relating to the enhancement of punishment in criminal cases.
Analysis: Amends the Penal Code to allow a judge or jury the option of sentencing a defendant who meets the criteria for enhancement as a repeat and habitual felony offender or misdemeanor offender to the original punishment provided for the offense being tried, if it is believed the enhancement would result in disproportionate or unfair punishment.
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HB 4580 [Turner, S.]: Relating to the proportionality of criminal sentences and to the consequences of a defendant’s violating a condition of community supervision.
Analysis: Amends the Code of Criminal Procedure to include the purpose of a sentence and states that a sentence should be appropriate for the offense committed and the defendant being sentenced. Additionally, this bill states that a court may only increase the period of community supervision, proceed with an adjudication of guilt, or revoke community supervision if the court determines that the defendant’s violation of a condition of community supervision was intentional. A defendant’s violation of a condition of community supervision is considered intentional if the defendant commits a subsequent offense. This bill is extremely important as it ensures that criminal sentences and the consequences of violating a condition of community supervision are proportional to the offense.
Fair defense is more than ensuring indigent people have access to legal representation; it is about guaranteeing that the overall court process (i.e. pretrial, evidence, discovery, testimony) is run in a just and efficient matter. Current procedures need to be reviewed and amended to ensure individuals are given a fair trial from start to finish.
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HB 195 [Alonzo]: Relating to pretrial hearings in criminal cases.
Analysis: Grants a pretrial hearing in criminal cases at the request of the defendant or the State.
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HB 196 [Alonzo]: Relating to the applicability of hearsay rules in proceedings regarding bail.
Analysis: Expands the Texas Rules of Evidence to cover proceedings involving bail. This is an important step towards ensuring a fair trial for each defendant at each step of the criminal justice process.
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HB 295 [Dutton]: Relating to requiring a judge to explain certain matters concerning conditions of community supervision before a defendant enters a please of not guilty or nolo contendere.
Analysis: Allows the defendant to more fully understand his rights and abilities with regard to conditions of community supervision before entering a plea. This would facilitate any misunderstandings that currently exist by educating all parties.
This bill would add a Subsection (j) to Article 26.13, Code of Criminal Procedure, to provide that before accepting a plea of guilty or a plea of nolo contendere for an offense for which a defendant is eligible to be placed on community supervision, including deferred adjudication community supervision, the judge must explain to the defendant:
(1) any condition of community supervision that may apply to the defendant; and
(2) the possible consequences of violating a condition of community supervision imposed on the defendant.
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HB 3078 [Deshotel]: Relating to the racial distribution of members of jury panels.
Analysis: Grants a party the ability to request that a jury list is discarded or reorganized if it does not ethnically or racially represent the community according to the last census.
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HB 3583 [Gallego] & CSSB 117 [Ellis]: Relating to photograph and live lineup identification procedures in criminal cases.
Analysis: Requires law enforcement agencies to adopt a policy regarding photograph and live lineup identification procedures. This law states that the person administering the lineup or photograph identification must inform the witness that: (1) the offender may not be among those shown, (2) the witness is not required to make an identification, and (3) the investigation will continue regardless of whether an identification is made. The person administering the photograph or lineup must also get a written statement from the witness stating they have received the above information. This bill would dramatically increase the effectiveness and accountability of a photograph or live lineup identification procedure.
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HB 4090 [Farrar] & CSSB 116 [Ellis]: Relating to electronically recording certain interrogations and the admissibility of certain statements made by a juvenile or a criminal defendant.
Analysis: Increases the effectiveness and accountability of police interrogations by requiring public safety officials to electronically record all interrogations. This bill also ensures that the accused is informed of his/her rights prior to being interrogated.
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SB 125 [Ellis]: Relating to the right of a foreign national to contact a foreign consular official.
Analysis: Requires an officer to allow a foreign national charged of a crime to contact his or her foreign consular official to inform them of their arrest and request assistance. Additionally, officers must take a training course on how to handle an arrest and detention of a foreign national.
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SB 165 [Ellis]: Relating to an annual report and analysis by the Office of Court Administration regarding cases involving the trial of a capital offense.
Analysis: Requires the Office of Court Administration to file an annual report for every trial involving a capital offense. The report would look at the race and socioeconomic background of the defendant as well as any mitigating circumstances surrounding the crime and the defendant. This report would be instrumental in examining the connection between sentencing and race of defendants, as well as create a “checks and balances” system that would hold the criminal justice system responsible for every stage of the criminal process.
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SB 260 [Ellis]: Relating to the disclosure of certain information regarding, and the admissibility and the use of testimony by, a witness for the state in a criminal case.
Analysis: Ensures that testimony given by in-custody witnesses, such as prisoners, is given the highest amount of scrutiny by the jurors. In considering the reliability of the in-custody witness, the jury may consider (1) whether or not the witness has received some kind of deal in exchange for their testimony, (2) the character of the witness, (3) their criminal record, (4) the relationship between the witness and the defendant, and (5) whether or not the witness has changed his/her testimony during the investigation or criminal proceeding of the case. This bill helps create an atmosphere of equality for the defendant and ensures that certain testimony is given due scrutiny.
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CSSB 1681 [Hinojosa]: Relating to requiring the corroboration of certain testimony to support a criminal conviction.
Analysis: Protects dedants by requiring the corroboration of in-custody testimony. Under this bill, a defendant may not be convicted of an offense on the testimony of an in-custody informant unless the testimony is corroborated by additional evidence tending to connect the defendant with the offense committed.
One way to assist defendants in seeking qualified representation is through the establishment and expansion of county public defender offices, through which attorneys provide legal services to indigent citizens who are otherwise unable to afford representation. Furthermore, Texas should award longevity pay for public defenders as it would encourage long term employment in the public sector. Finally, TDCJ should make it easier for defendants to post bail and pay their court fees.
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HB 2058 [Gallego, Miklos, Hodge, Lucio III, Christian] & SB 1130 [Seliger]: Relating to the standards for attorneys representing indigent defendants in capital cases.
Analysis: Creates a specialized listing of qualifications for appellate attorneys representing indigent defendants in capital cases. Specifically, these bills require the standards adopted by a local selection committee for the qualifications for an attorney appointed as lead appellate counsel to require the appellate attorney to have authored a significant number of appellate briefs, to have trial or appellate experience in the use of mitigating evidence at the penalty phase of a death penalty trial, and to have participated in continuing legal education courses or other training relating to criminal defense in appealing death penalty cases.
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HB 3056 [Turner, S., McClendon, Guillen]: Relating to the driver responsibility program.
Analysis: Prohibits the Department of Public Safety from assessing a surcharge to a person who is indigent, allows the court that presided over the trial of the offense creating the surcharge to reduce or waive the surcharge, and requires the department to send at least 3 notices to a person whom a surcharge has been assessed before their license can be automatically suspended. This bill also removes the 36 month time restriction in which a person must pay a surcharge.
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HB 3580 [Gallego] & CSSB 1091 [Ellis, Duncan]: Relating to the establishment of the capital writs committee and the office of capital writs.
Analysis: Creates an Office of Capital Writs and a Capital Writs Committee that would address the needs of indigent defendants with a capital case requiring help with a Writ. A 2002 study revealed that lawyers failed to investigate and present non-record evidence in 39% of Texas capital habeas cases. To put it starkly: if six of the Texas death row prisoners who were exonerated and releases went through the current system, at least two would have been processed through and executed without investigation into their cases and there would be no outward indication of the miscarriage of justice. Providing adequate legal representation is especially important in habeas proceedings, because state habeas represents the most critical stage of the appellate process in death penalty cases: it is the “safety net” designed to catch the innocent and those treated unfairly by the system.
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SB 498 [Wentworth]: Relating to the release of a criminal defendant on partial bail and to the procedures governing a cash bond.
Analysis: Allows a defendant to pay only a portion of a bond and be released from prison, if a magistrate decides that paying the whole bond would be a financial hardship.
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SB 625 [Wentworth]: Relating to the representation of indigent defendants in criminal cases.
Analysis: Clarifies and simplifies the process by which counties establish a public defender's office, which can offer substantial savings to counties that employ them. Under current law, a county considering the creation or appointment of a public defender’s office must solicit bids from non-profit corporations, even if the commissioners court already has decided that it wants to establish its own office within the county. Under SB 625, the commissioners court simply could create an in-house public defender’s office without the requirement of soliciting bids. If the county wanted to contract out for a public defender’s office, however, the normal bid process would be used. The bill also would address some of the barriers that counties face in establishing a public defender’s office, including concerns about start-up costs and absence of case loads large enough to make a public defender’s office cost effective. In addition, SB 625 changes the name of the Task Force on Indigent Defense, a standing committee of the Texas Judicial Council, to the Texas Indigent Defense Council.
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CSSB 1710 [Duncan]: Relating to the creation of independent assigned counsel programs.
Analysis: Amends the Code of Criminal Procedure to better enable local jurisdictions to establish independent assigned counsel programs in Texas. This program is modeled on the private defender program in San Mateo, California where the county contracts with the local bar association to manage the assigned counsel system. If enacted, this bill would do the following:
(1) define what an independent assigned counsel program is in statute;
(2) allow counties to adopt local indigent defense policies that incorporate independent assigned counsel programs; and
(3) allow for payment of attorney, investigator, and expert expenses incurred in independent assigned counsel programs.
SB 1710 provides jurisdictions with another option for delivering indigent defense services and relieves judges of most of the administrative burdens of managing indigent defense.
Analysis: Clarifies the Fair Defense Act procedures for appointing counsel for community supervision revocation hearings or appellate proceedings.
Texas leads the nation in wrongful convictions. Statewide, there have been recent waves of individuals being exonerated for crimes they were incarcerated for (sometimes for more than a decade) but did not commit. Wrongful convictions destroy public trust and confidence in the justice system – guilty culprits are free, threatening communities and preventing justice for victims. The State of Texas owes it both to the victims of crime, as well as to individuals convicted of those crimes, to do everything within its means to ensure that innocent individuals are not sent to prison. Furthermore, the State needs to compensate individuals with wrongful convictions and assist them in rebuilding their lives.
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CSHB 498 [McClendon, Thompson, Gallego, Hodge, Pierson]: Relating to the creation of a commission to investigate and prevent wrongful convictions.
Analysis: Examines whether a state innocence commission should be created in efforts to prevent wrongful convictions.
TCJC Testimony (Note: Testimony does not reflect later changes to the bill)
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HB 788 [Thompson, Dutton, McClendon] & SB 115 [Ellis]: Relating to the creation of a commission to investigate and prevent wrongful convictions.
Analysis: Creates a State commission to investigate and prevent wrongful convictions. Cases of wrongful convictions have increased in the last few years and continue to warrant effective investigation and monitoring efforts. A State-run commission would aid in the effort to stop wrongful convictions and work towards realistic solutions to this problem.
This bill states that this newly established commission would investigate thoroughly all post-conviction exonerations, including convictions vacated based on a plea to time served, in order to:
1) ascertain errors and defects in the criminal procedure used to prosecute the defendant’s case at issue;
2) identify errors and defects in the criminal justice process in this state generally;
3) develop solutions and methods to correct the identified errors and defects; and
4) identify procedures and programs to prevent future wrongful convictions.
Finally, this bill would require this commission to compile a detailed annual report of its findings and recommendations, including any proposed legislation to implement procedures and programs to prevent future wrongful convictions or executions.
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CSHB 1736 [Anchia, Davis, Y., Branch, Hodge, Isett] & CSSB 2014 [Duncan, Ellis]: Relating to compensation of persons wrongfully imprisoned.
Analysis: Increases the amount of compensation given to a wrongfully convicted individual from $50,000 to $80,000 for every year served in prison. This bill also adds compensation if the individual was required to register as a sex offender or be on parole ($25,000 for each year). Additionally, the bill offers state level insurance for life to wrongfully convicted individuals, as well as paying for up to 120 hours of tuition at a career center, community college, or state university.
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HB 3584 [Gallego] & SB 1974 [Ellis, Duncan]: Relating to the wrongful imprisonment of a person and to procedures for providing compensation for that imprisonment and for exonerating a wrongfully imprisoned person who is deceased.
Analysis: Allows the spouse/dependents of a person that is found to be wrongfully convicted and is deceased to be eligible for compensation. It also requires the District Attorney to alert the remaining family members of their intent to destroy evidence relating to their case. The family members then have the opportunity to raise an objection to this intent. Additionally, this bill would provide a provision for an application for a posthumous pardon for actual innocence to be submitted by the spouse or dependants of the deceased individual.