Interim Update: October 2015

            In honor of tomorrow’s spooktastic holiday, we’ve tried to think of the scariest possible introduction for this month’s update. Here’s what we came up with:

            There are only 122 days left until the March 1, 2016 primary!  BWAHAHAHAHAHAHA!


Interim charges

            Earlier this month, Lt. Governor Dan Patrick rolled out the issues he wants Senate committees to study over the next 14 months. The list is long, but highlights include the following topics for these Senate committees:

            Criminal Justice: Reducing injuries/deaths suffered by law enforcement officers; improve jail safety; improve re-entry outcomes for TDCJ prisoners; recommend best practices for pre-trial diversion and treatment programs; study asset forfeiture laws to ensure transparency and protect private property rights and public safety; monitor legislation from last session on truancy, body cameras, civil commitments, veterans treatment courts, and TJJD regionalization.

            Health & Human Services: Improve collection and use of child abuse/neglect data by CPS; recommend solutions for shortage of inpatient forensic psychiatric beds.

            Natural Resources & Economic Development: Improve the prevention of oil field theft.

            State Affairs: Adequacy of judicial salaries; de-linking legislative retirement rates from judicial salaries; eliminating straight-ticket voting for judicial offices; eminent domain compensation; monitor open carry and campus carry implementation and the establishment of the public integrity unit at DPS.

            Transportation: Evaluate the need for the Driver Responsibility Program (aka DPS surcharges) and recommend alternatives.

            Veterans Affairs & Military Installations: Monitor changes and consider alternative funding sources for veterans treatment courts.

            VA&MI Subcommittee on Border Security: Collect data on “sanctuary cities.”

            House Speaker Joe Straus is expected to issue interim charges to his committees sometime in the next few weeks. We will keep you informed about committee hearings on issues that might impact your duties, but if you have immediate questions, contact Shannon.


Timothy Cole Exoneration Review Commission

            This legislatively created body met for the first time yesterday to elect a presiding officer and discuss how it intends to tackle the task before it. State Rep. John Smithee (R-Amarillo), the chairman of the House Committee on Judiciary and Civil Jurisprudence, was unanimously approved as the president of the commission. (That was the easy part—he was the only volunteer.) Determining the scope of the commission was not as simple, and no definitive action was taken on that point—but it will be a key decision that could determine the success or failure of any recommendations coming from this commission. Here’s what we mean by that.

            The text of the bill creating the commission (HB 48) was relatively straightforward on the scope of the commission’s job and was basically two-fold. First, the commission is to look into wrongful convictions discovered after 2010 (when the ad hoc last wrongful conviction panel was disbanded), with a particular focus on an “exemplar” case that highlights relevant issues, and then make recommendations for preventing new wrongful convictions. And second, the commission is to review the recommendations from the last wrongful conviction panel and see how they have been implemented (or not), then make further recommendations on those points. That’s a simple enough job, and one that could yield useful information for the Legislature—especially if the commission could figure out a politically acceptable compromise on recording interrogations. However, the Innocence Project of Texas and other advocates are already urging an expansion of the role of this commission to address other pet issues, including pre-trial bail practices, expansion of discovery under the Michael Morton Act, revisions to eyewitness identification procedures, and prosecutorial misconduct sanctions. (And if you think this is déjà vu all over again when compared to how outside groups tried to hijack the nascent Forensic Science Commission to examine death penalty cases outside of its bailiwick, we aren’t going to correct you.)

            We will continue to monitor this commission’s activity and let you know what transpires. If you are interested in seeing what material some of those advocacy groups provided to the commission, you can read it all here in the appendix to the commission’s meeting book. The Legislature also placed TDCAA’s chairman of the board on the commission, so if you have further questions or concerns about any of this, feel free to convey them to your current chairman, Rene Peña (DA in Floresville), or after January 1, incoming chairman Staley Heatly (DA in Vernon).


Update on DNA mixture snafu

            On Monday of this week, the Texas Forensic Science Commission (TFSC) hosted a meeting of prosecutors, defense attorneys, and others to discuss notification issues with regard to the DNA mixture issue. To the credit of prosecutors, the working group that TFSC has tasked with handling this issue—which includes defense attorneys, various advocacy groups, and state leadership representatives—recognized that prosecutors have been pro-active in this area and are taking their duties under the Michael Morton Act and Brady seriously. The problem has been getting good information from the labs and then determining a successful notification process that prosecutors can use, should they choose to do so. Here is what we learned from this meeting and what you can expect in the coming weeks.

            Updated DPS crime lab lists

            Many of you are still trying to identify which cases in your jurisdictions relied on DNA mixture evidence and ended in convictions. To help, DPS has cross-indexed its original list of 24,000-plus DNA mixture analyses with TCIC in hopes of identifying individual defendants who were convicted in a criminal case relating to each lab analysis. If you are still struggling to cull your list to include only actual cases in which someone was convicted in part because of DNA mixture evidence, contact the main Austin DPS Lab at [email protected] to see if their updated list can help.

            Notification to defendants

            Some of you have sent notices to the defense bar on this issue, so they generally know of the potential problem, but there is no consensus in the defense community that defense attorneys have any continuing duty to past clients affected by this issue. As a result, many of you feel that it is in your best interest to get notice to the actual defendant who is incarcerated or on parole. (After all, the sooner that person gets notice, the sooner we can resolve this whole issue on a statewide level.) For prosecutors who would like some assistance here, the TFSC is developing a sample letter that can be used to notify defendants in TDCJ who may want to have additional work done in their cases. That sample letter should be ready in a few weeks, and TDCJ has agreed to deliver these letters to anyone incarcerated or on parole (we will provide you with more information on letter and related procedures when it becomes available). Included in the sample letter will be a form the inmate or parolee can fill out requesting that the DNA mixture evidence in their case be re-calculated. The inmate will send that form to a newly created “defense triage team.” This is a group of lawyers out of Houston who will be funded through the Indigent Defense Commission and whose mission will be to receive inmate requests and communicate with prosecutors about a solution in that particular case. It is presumed that the prosecutor, upon receiving this request, will ask DPS or the lab that did the testing to re-calculate the CPI using the revised stochastic threshold protocols. That might end the work right there—the TFSC believes that seven out of 10 re-calculations will yield no new results favorable to the defendant/inmate—but if a re-calculation does produce arguably materially different results, it can then to be referred to an appointed defense attorney to handle a potential writ.

            Training for prosecutors and defense attorneys

            Two training needs have been identified for the near future. First, lawyers need to be updated on the science itself—including the soon-to-be-introduced “probabilistic genotyping” method of calculating a match that DPS wants to have up and running in a few months. Second—and this is a little further down the road—lawyers will need training on writs related to this issue.  We are working on those two topics from a prosecutorial perspective while TCDLA handles the defense attorney aspect of those issues.

            Assistance for prosecutors

            Another piece of this puzzle will involve assistance (for those of you who want it) handling the writs that may flow from these re-calculations. Stay tuned for more information as we continue to work on various solutions for this problem.

            Comments? Questions? Please call Rob Kepple at 512/474-2436 or email him at [email protected].


E-filing in criminal cases

            Permissive e-filing in criminal cases begins on Monday. E-filing in criminal cases is *not* mandatory (yet), but will be permitted in those counties that implement it. The availability of criminal e-filing will be dependent on whether the clerk and judges in a county decide to adopt it, but almost all counties now have mandatory civil e-filing, so we expect that many counties will offer criminal e-filing in the near future. (Our latest information is that at least 50 counties will go live with criminal e-filing sometime in the next 30 days.) Counties that voluntarily adopt e-filing will have to abide by the CCA’s e-filing rules, which can be found at, but the Office of Court Administration is in the process of making various training resources available to those counties’ local bar associations, etc., to help iron out any implementation problems. Because they are intended to be modeled after the current civil e-filing rules, these criminal rules will look familiar to many practitioners. If you have questions about criminal e-filing, contact us for more details.


Notice of TDCAA Annual Business Meeting

            TDCAA’s Annual Business Meeting will take place in conjunction with the 2015 Elected Prosecutor Conference. The meeting will be held at 5:00 p.m. on Wednesday, December 2, at the La Cantera Hill Country Resort in San Antonio. The principle business at hand will be to elect the TDCAA leadership for 2016. We hope you can be there! Call Rob Kepple at 512/474-2436 or email him at [email protected] if you have any questions.


Elected Prosecutor Conference

            Due to high demand and limited availability at the La Cantera Hill Country Resort, an overflow hotel has been added. The Wyndham Garden La Cantera is offering a $112 group rate and complimentary shuttle service to the La Cantera Resort (1 mile away). Call 210/690-0300 and reference the TX District & County Attorneys Association by November 13th or book online here: TDCAA Online Booking Link at Wyndham Garden. Once your reservation is made, cancellations can only be made 48 hours prior to arrival; for early departures, please give the hotel 24 hours’ advanced notice.


Elected Prosecutor Conference bonus

            For you golfers who are attending the Elected Prosecutor Conference in San Antonio, we have negotiated a few discounted tee times ($69) at La Cantera’s Resort Course the day before the conference begins, starting at 12:30 p.m. on Tuesday, December 1 (sunset that day is at 5:34 p.m., in case you were wondering). Space is limited and will be assigned on a first-come, first-served basis, so if you are interested in playing, contact Shannon ASAP to reserve your spot. (Note, however, that we cannot reimburse you for any meal or lodging expenses on Tuesday if you come to town a day early to play golf.)


Free DWI training, anyone?

            There is still time to get free local DWI training for your prosecutors and police from TDCAA. Clay Abbott has about five open dates to bring this high-quality, free training (and free publications to boot) to your hometown at no cost to you. If you are interested, please email Kaylene Braden and she can send you the documents, instructions, and available dates to bring this fantastic training directly to you.


Free DWI and Traffic Stops books

            In early November, we will ship updated DWI and Traffic Stops books to all prosecutors in Texas, courtesy of a grant through the Texas Department of Transportation. TDCAA uses its membership records to determine the number of books to send to each office, but if that information is out of date and we do not ship a sufficient number to your office, contact TDCAA Sales Manager Jordan Kazmann ([email protected]) to request additional books.


Quotes of the week


“I’d rather be a vegetarian.”
            —Congressman Mac Thornberry (R-Amarillo), when asked earlier this month if he wanted to throw his hat in the ring to be the next Speaker of the House of Representatives in Washington, D.C.


“*#%>¥! @Cowboy defense. More porous than the Texas border.”
            —Gov. Greg Abbott, tweeting after the Dallas Cowboys’ overtime loss to the New Orleans Saints earlier this month.


“I’m a pistol packin’ mama and my husband sues Obama.”
            —Lyrics from a song written and recently performed for a Republican women’s club by Angela Paxton, wife of Attorney General Ken Paxton (the hyperlink includes video, if you’re into that kind of thing).


“It’s just a term we use in the Marine Corps.”
            —Ellis County Constable Mike Jones, when asked why he used a particular epithet when referring to Iranians in a recent Facebook post.


“We got sold that marijuana legalization was going to positively impact our schools. And there is the school infrastructure aspect, but we’re not seeing tremendous changes with marijuana prevention programs, and our students are paying the price.”
            —Christine Harms, director of the Colorado School Safety Resource Center, at a recent Colorado conference of educators.


“I’ve been open-carrying these guns around for years!”
            —State Rep. Carol Alvarado (D-Houston), explaining why she does not support open carry while simultaneously flexing for the audience during a panel discussion about open carry at the Texas Tribune Festival earlier this month.


“I’ve got to get my kid into a better neighborhood. His teacher asked him, ‘What comes after a sentence?’ He answered, ‘An appeal.’”
            —Tweet by @SwedishCanary, one of our guilty pleasures on Twitter.