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Below is the HillCo client report from the October 7 House Criminal Jurisprudence hearing.
 
The committee met to consider the following interim charges:
 
Study the impact of SB 1289 (83R). Examine the sale of criminal histories that may be erroneous as well as the lasting impact that arrest records have on individuals who are arrested but not charged or convicted. Assess the need for revision of existing statutes and consider designating an agency responsible for regulating entities involved in the industry.
 
Evaluate the approximately 1,500 non-traditional criminal offenses that can be found outside of the Penal Code. Study the feasibility of streamlining these offenses and examine ambiguities in the law. Study the existing use of the Rule of Lenity and Mens Rea requirements in Texas and the benefit of codifying both of these standards.
 
Study the effectiveness of deferred adjudication and orders for non-disclosure in spite of the many exceptions to the statute. Study extending the use of expunction of criminal records history and non-disclosures to certain qualified individuals with low-level, non-violent convictions. Examine the statutorily allowed but underused non-disclosure and expunction of criminal records, and the use of deferred adjudication.
 
Examine the current pecuniary loss thresholds associated with graffiti offenses. Study the costs of enhancing the penalties associated with the offense of graffiti, as well as a study of pretrial diversion programs that exist in other states and are specific to persons convicted of graffiti offenses. Study the existing Graffiti Abatement Programs in Texas.
 
Examine the utilization of community supervision in state jail felonies and the effectiveness of the state jail in light of its original purpose.
 
 
Non-Traditional Criminal Offenses
 
Mark Levin, Center for Effective Justice, Texas Public Policy Foundation

  • It is important to codify the rule of lenity
  • It is hard to keep track of criminal offenses because they often go to many parts of code and are established through different legislative committees
  • Will be having a work session to focus on duplicative and confusing offenses in code and developing recommendations to the legislature for next session
  • If a new law creates a penalty, the penalty should be in the caption of the bill
  • There should be legislative rules keeping any bill that creates a new penalty off the local calendars
  • Rep. Jeff Leach agrees with the idea that any bill that establishes a penalty should come through Criminal Jurisprudence
  • Chairman Abel Herrero asked how the rule of lenity is different than a judge’s discretion
    • There are many methods of interpretation judges and juries can use, this would just be adding another tool to the toolbox; once the facts are established the law is interpreted to determine if a law has been broken; the rule of lenity says that if there are two interpretations of a law the interpretation that benefits the defendant should be used
  • It is better not to have ambiguous laws than to rely on the rule of lenity
  • Rep. Matt Schaefer noted he would like to see real world cases where the rule is used
  • Rep. Steve Toth asked what the impact on Texas would be; how many cases
    • Relatively few cases; it puts the onus on future legislators to keep laws from being ambiguous

 
Shannon Edmonds, Texas District and County Attorney’s Association

  • Toth asked if a DA could choose not to bring charges forward based on the rule of lenity
    • Theoretically that could happen but a prosecutor would not need the rule of lenity to do that
  • Leach asked if the witness would be in favor of a rule change to require all bills creating penalties to come through this committee
    • That isn’t something that DAs consider very often; there are about 50 new crimes that are created every session, for the most part they probably feel many of them are unnecessary
  • Rep. Joe Moody noted he doesn’t believe a House rule can be written to determine where the Speaker sends bills
  • It might help to have something indicating that a bill has a criminal penalty; many times those provisions are hidden in a very lengthy bill
  • The rule of lenity is not something for juries or grand juries; it is a rule for statutory interpretation usually used in appellate court; there is already a statute that tells judges how to interpret what the legislature does to determine what legislators meant
  • The legislature needs to be cautious in determining why previous legislatures did not codify the rule of lenity as it relates to penal code offenses

 
Elizabeth Henneke, Texas Criminal Justice Coalition

  • The rule of lenity is dead for the penal code in Texas
  • Moody noted he doesn’t believe it is necessary to codify the rule of lenity; sophisticated white collar criminals are the ones who would benefit from its codification

 
Patricia Cummings, Texas Criminal Defense Lawyers Association

  • The reason why the rule of lenity should be codified is that cleaner, tighter legislation will come as a result of doing so
  • It is better to look at ambiguity in code in the initial steps of prosecution as opposed to in appeals court
  • Moody asked where ambiguities are that need to be addressed
    • Mostly in city ordinances; cities are creating status offenses such as aggressive panhandling or sleeping in a public place; can have a situation where offenses may or may not be criminal conduct

 Noe Perez, Self

  • In favor of codifying the rule of lenity

 
Ed Heimlich, Informed Citizens

  • Built a very large real estate brokerage which was destroyed by careless prosecution
  • Believes that a court should not be able to determine a verdict based on what they assume a person was thinking when they committed an act
  • Got an expunction but the information still showed up on his record

  
Sale of Criminal Histories
 
Skylar Hearn, Assistant Director, Department of Public Safety

  • Generally the sale of public data is governed under Sec. 4.11 of the government code
  • There are roughly 8.5 million criminal records; only about half of those are provided and available as public information requests
  • Provide weekly pushes or pulls to about 17 companies
  • Operate a public website to allow anyone to look up public data for a fee
  • Provide expunction orders directly to those companies that purchase information
  • Toth asked what is done to ensure people’s rights are protected; if information is released that is later expunged what can be done to ensure that information isn’t used past that point
    • DPS provides the same criminal record data that cities and counties can provide; arrest data is provided only by cities or counties; private entities are not required to make sure their data is up to date besides a required 60-day refresh

 
Ted Wood, Office of Court Administration

  • The current system is tremendously imperfect
  • People are under the assumption that an order of expunction will mean their record will not be released; this is not exactly true
  • People hear that when they have a case adjudicated that no conviction will appear on their record; this is true but their record will still show an order of nondisclosure for the crime

 
Helen Gabler, William Wayne Justice Center for Public Interest Law

  • FBI reports more than 77 million people on file in its master criminal database
  • The number increases every year
  • Lifelong barriers to housing, employment, government services, etc. come from criminal histories
  • Recommends that Texas more closely regulate bulk sale or dissemination of criminal records
  • Legislature should ban the release of arrest records that are never charged or never lead to conviction
  • Moody asked what the biggest challenges to creating uniformity are
    • It wouldn’t be that difficult if DPS were the sole entity used for bulk sales

 
Sherry Woodfin, County and District Clerks Association of Texas

  • Discussed the process for public information requests of arrest records

 
Robert Doggett, Attorney

  • DPS has the right answer about releasing preliminary data; it probably shouldn’t be done
  • DPS should be sole entity to release this data
  • Herrero asked the witnesses position of DPS selling bulk information
    • Just looking at the number one item to be addressed; stopping the burden on local entities releasing all of this information

 
Sarah Paul, Texas Criminal Justice Coalition

  • Discussed SB 1289 (83R); applies to businesses that correct their provided public information for a fee
  • Need to be aware that the bill created a loophole for businesses who choose not to accept payment to change the information
  • Criminal information should be accessed but it must be done in a just manner

 
Mark Levin, Center for Effective Justice, Texas Public Policy Foundation

  • Support moving bulk sales to DPS who only sells records if there is a final disposition
  • There should also be a requirement to maintain a log of people sales are made to

 
Patricia Cummings, Texas Criminal Defense Lawyers Association

  • Even though laws are being passed to prevent people from taking advantage of incorrect records, local entities are still putting out info that could be incorrect once a disposition is made

 
Expunctions & Non-Disclosures
 
Helen Gabler, William Wayne Justice Center for Public Interest Law

  • Expunction and nondisclosure statutes continue to be extremely difficult to apply
  • Recommends granting automatic expunctions immediately upon dismissal for arrests that do not lead to conviction
  • Recommends allowing deferred adjudications to be expunged after a certain period of time
  • Recommends further limiting of access to records

 
Sarah Paul, Texas Criminal Justice Coalition

  • Very few petitions for orders of nondisclosure come across a judge’s desk
  • It isn’t very easy to get an order of nondisclosure either
  • There is a problem with businesses not being held accountable for distributing incorrect information
  • Recommends expanding the eligibility criteria for non-violent offenses for nondisclosure and waiting times should be reduced

 
David Fraga, City of Houston Municipal Court

  • Expunction requests and requests for orders of nondisclosure need to be made more simple for young people to apply for; would prevent them from having to hire an attorney
  • More courts need to be able to handle expunctions so the process is streamlined for young people

 
Robert Doggett, Attorney

  • The process for expunction and nondisclosure should be simplified
  • There should be a certain set of conditions that cause a case and record to be sealed automatically; would ease the system of burden and local governments would not have to deal with every request to seal

 
Mark Levin, Center for Effective Justice, Texas Public Policy Foundation

  • There is a need to shorten waiting periods on cases for orders of nondisclosure

 
Richard Tenenbaun, Self

  • Most of the people in these situations of Class C misdemeanors are for the most part young, unsophisticated and without counsel
  • The system should be eased for Class C misdemeanors

 
Shannon Edmond, Texas County and District Clerks Association

  • This is not a problem with the criminal justice system, it is a problem with civil society after the criminal justice system takes course
  • Records are sealed for deferred adjudications because even though a person was not convicted they factually committed a crime; with expunctions a person did not do it so the crime is completely cleared from a record

 
Skylar Hearn, DPS

  • Moody noted it seems like many people are complimentary of what the DPS is doing and it seems like they want to push more responsibilities that way
  • Hearn noted agencies are only required to report Class B and above arrests and dispositions to DPS; some entities send Class C but not many; if the state wishes DPS to be the depository of all arrests they will need to change the statute

 
Graffiti Penalties & Abatement
 
Jorge Renaud, Texas Criminal Justice Coalition

  • Senator Whitmire has made the statement that we should incarcerate people we are afraid of, not people we are mad at
  • There are currently 289 people in Texas on probation or in jail because of graffiti
  • The crime of graffiti does not justify the collateral consequences that come from charging someone and putting them in jail
  • A restorative justice approach should be taken to graffiti where a person who commits the crime is responsible to clean up what they have done; it will help give them a sense of community

 
Mark Levin, Center for Effective Justice, Texas Public Policy Foundation

  • Support a restorative justice approach to graffiti crimes; also supportive of monetary restitution

 
State Jail Felonies
 
Sarah Paul, Texas Criminal Justice Coalition

  • State jails are expensive, ineffective and improperly used
  • State jails are used to house individuals who are not charged with state jail felonies; state jails offer far less programming than prison facilities so individuals held in those facilities do not receive the programming they were intended to receive when they were sentenced to prison; programs such as rehabilitation and educational programs

 
Mark Levin, Center for Effective Justice, Texas Public Policy Foundation

  • Agrees with the previous witness

 
Shannon Edmonds, District and County Attorneys Association

  • All of the rehab money has been taken out of state jails and was never put back in
  • Their original purpose was to be therapeutic communities for rehabilitation and they can’t live up to that purpose without sufficient funding