Interim Update: February 2016

          (Super) Tuesday is primary day in Texas. Some political people like to remind everyone that “elections have consequences.” What they don’t say is that among those consequences are hangovers, heartburn, and penury. With that in mind, good luck to everyone on the ballot next week!


DNA mixture reviews

            In response to those of you who sent notices to inmates affected by potential errors in the calculation of the Combined Probability of Inclusion from DNA evidence in their cases, requests for recalculation are beginning to trickle into the legal triage team. That group of lawyers is led Bob Wicoff of the Harris County Public Defender’s Office, which has been funded by the state’s Indigent Defense Commission to screen these requests. Bob is hoping to significantly pare down the number of DNA mixture results that need recalculation by reviewing each case to assess the materiality of the DNA evidence in that case. To that end, he sent us a letter asking for your assistance, when requested, in assessing the significance of various DNA calculations at this early stage. A copy of Bob’s letter can be viewed at If you have any questions, email [email protected].


Interim hearing recap

            Here are notes from some of the interim legislative hearings held this past month (which was relatively light due to the impending primaries):

  • The House Committee on Corrections heard testimony about alternative sentencing options for non-violent drug offenders. Harris County’s new pre-trial intervention programs were discussed (and lauded), while other reform advocates suggested (once again) that state jail felony drug crimes be reclassified as misdemeanors. One interesting suggestion came from chief probation officers who said that legislators should increase the sentence for state jail felonies so that defendants will have a greater incentive to choose supervision over short jail sentences and so they have enough time to work with offenders who need longer-term treatment. While that suggestion may not get far, it does point out the on-going failure of the state jail felony “therapeutic community” model that has never been adequately funded by the Legislature.
  • The Senate Committee on State Affairs discussed the adequacy of judicial salaries, the link between the district court benchmark salary and legislators’ retirement benefits, and ways to remove the stink from that connection. Chief Justice Hecht and the head of the Judicial Compensation Commission both suggested that the commission’s recommendations for judicial pay raises be given presumptive effect unless the Legislature votes them down—and wonderful idea, but one that will never be adopted by state budget writers. The commission’s specific recommendation for an additional 5-percent raise was not discussed in detail, nor was there any serious talk at this stage about de-linking legislators’ retirement from the benchmark salary. We will continue to monitor this issue to be sure any de-linking does not affect DAs or CDAs who are also linked to that figure.


March hearings

            Here is a list of relevant interim committee hearings posted for March:


House Committee on Higher Education

Tuesday, March 8, at 9:00 a.m., State Capitol Room E2.014

Topics: sexual assault on college campuses


Senate Committee on Veterans Affairs & Military Installations

Thursday, March 10, at 9:00 a.m., State Capitol Room E1.012

Topics: Veteran health and mental health, employment, funding and outcomes of veterans courts


House Select Committee on Emerging Issues in Law Enforcement

Monday, March 21, at 9:00 a.m., State Capitol Room E2.010

Topics: body camera best practices


Senate Committee on State Affairs

Tuesday, March 29, at 9:00 a.m., State Capitol Senate Chamber

Topics: eminent domain compensation


Senate Committee on Criminal Justice

Wednesday, March 30, at 1:30 p.m., State Capitol Room E1.012

Topics: health, welfare, and safety of those in county and municipal jails


If you have questions about any of these hearings, call or email Shannon for more information.


Should confessions be recorded?

            The Timothy Cole Exoneration Review Commission is debating whether to recommend that the next legislature mandate the recording of certain custodial interrogations. They set up an anonymous survey on that general topic and asked us to solicit input from prosecutors, which we are now doing on our website. To participate in this 5–10-minute survey, go to The word we’ve gotten so far is that very few prosecutors or criminal defense lawyers have weighed in, so consider this a chance to be heard without having to travel to Austin and sit around all day before testifying on a bill!


More free protective order training

            TDCAA is again offering two hours of FREE CLE on protective orders. The next training will be held on Tuesday, April 12, 2016, from 10:00 a.m. to noon, in conjunction with our Crimes Against Children Conference at the Wyndham Riverwalk Hotel in San Antonio. Class attendees will receive training on the different types of protective orders (including final protective orders, emergency orders and temporary ex parte orders); jurisdiction for each type of order; additional measures to protect victims; how to work with other stakeholders for victim safety and restoration; and how to prosecute violations of protective order and bond cases.

            This free training is limited to prosecutor-office employees only. This training is also funded separately from the Crimes Against Children Conference, so attendees must register for it separately from the Crimes Against Children Conference by checking the appropriate box on the online registration page. We regret that our VAWA grant does not allow us to reimburse attendees for an extra night at the hotel for attending this training, but all attendees will receive a free copy of a protective order manual, including sample forms and documents on a CD.


Quotes of the month


“Come at the king, you best not miss. —Omar Little, The Wire (HBO 2002)”

            —CCA Judge David Newell, in his concurrence to the majority opinion in Ex Parte Perry that dismissed the remaining charges against the former governor.


“It’s unfortunate for Governor Perry that he had to go through this experience, and we need to find a way that a person’s life and character cannot be destroyed by a district attorney that asserts these legal challenges in ways that destroy someone’s life, because even though Governor Perry has been exonerated, it’s like that old line: ‘What office do I go to apply to get my character back?’ And you can’t.”

            —Governor Greg Abbott, expressing his desire to prevent politically-motivated prosecutions in the aftermath of the Perry case.


“I think the will is definitely there for reform on civil asset forfeiture. … I do believe we can get that done this session.”

            —State Sen. Konni Burton (R-Colleyville), at a civil asset forfeiture reform summit in Irving earlier this month that was hosted by Right on Crime and the Institute for Policy Innovation. Last session, Sen. Burton filed a bill to require a criminal conviction before forfeiture.


“We’re looking for complete repeal [of civil asset forfeiture]. … I’m not looking to tweak the system because I think the whole system doesn’t deserve to be tweaked. It’s wrong. It’s 100-percent wrong.”

            —State Sen. Don Huffines (R-Dallas), at that same forum.


“The vice cops who went to it last year said they were bored.”

            —Dallas City Councilman Philip Kingston, defending the city against claims that allowing the EXXXOTICA Expo to hold another sex and porn convention in the city-owned Kay Bailey Hutchison Convention Center would somehow contribute to sex trafficking. (The city ultimately booted the Expo and is now being sued.)


“If you spent a day in a duck blind with Nino, you had a lot of laughs.”

            —Former Vice President Dick Cheney, describing his frequent hunting trips with Supreme Court Justice Antonin Scalia, who passed away this month.