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House Criminal Justice Reform met on October 12 to hear invited testimony only on the following interim charges:

  • Monitor the implementation of S.B. 6 (87th Legislature, 2nd Called Session), relating to changes in the state’s bail system, to determine if additional legislation is needed to ensure Texans are protected from the most dangerous criminals while ensuring the constitutional rights of defendants.
  • Examine policies and penalties relating to drug offenses.
  • Examine the civil asset forfeiture process.
  • Examine jury instructions and sentencing guidelines in felony cases.

 

An archive of this hearing can be found here.

 

This report is intended to give you an overview and highlight of the various topics taken up. It is not a verbatim transcript of the discussions but is based upon what was audible or understandable to the observer and the desire to get details out as quickly as possible with few errors or omissions.

 

Megan LaVoie, Office of Court Administration

  • SB 6 changed landscaped of bail system; instituted Public Safety Report System and requires magistrates to consider more information about a defendant including criminal history, etc.
  • PSRS provides summary of criminal info to magistrates and provides info regarding applicability of required or discretionary bond conditions
  • Provides mechanism to report bail decisions to the office of court administration
  • Currently more than 260,000 bail forms and information on website
  • Contracted with AutoMon based out of Arizona and have 5700 users across the state
  • System includes if they have been charged with violent offense and mandatory or discretionary bond conditions
  • Report is given to magistrate, hearing is conducted by judge, and bail is set
  • Decisions are entered by judge or staff regarding bail decisions; then certified by magistrate or someone on their behalf and published by OCA
  • Completed bail forms by month reported, 37,449 completed bail forms in April rose by 6% in May, 3% may, 6% June, leveled off in August with 43,458 bail forms in system
  • Top reported offense 27% are class A misdemeanors, 24% class B misdemeanors, 18% 3rd degree felonies and state jail felonies
  • Top 10 most reported offenses include Driving while intoxicated, possession of a controlled substance less than 1 gram, assault causing bodily injury
  • Reported bail type cash and surety bonds makes up 83%, personal bond 12%, bail denied 5%
  • Average bond amount for cash and surety is just over $16,000 and personal bond about $4200
  • Smith- What else did you have to say?
    • Judicial education requirements and training requirements are 8 hours of judicial education on setting bail and has to be completed by December 1 next year
  • Smith- What are the percentage of cases going unreported despite implementation of law?
    • Have two small counties who have not added to the system; may not have any arrests
    • Seeing some discrepancies in DPS arrest data to compared with PSRS
  • Smith- I saw 46% aren’t using the system?
    • Some jurisdictions were not ready to meet the April 1 deadline, are seeing most countries and jurisdictions using it now
  • Smith- Asks about streamlining the program
    • Is a duplicative effort currently; hearing from jurisdictions there is a cost factor estimating $15,000 for integration
  • Discussion of the cost of an API and if any counties are integrated; as of today there are not any that are fully integrated

 

Bronson Tucker, Justice Court Training Center

  • Speaks with justice of the peace judges frequently and speaks with judges on all levels through job and have gotten lots of input
  • Question of when is a PSR required to be consulted and when is a bail form required to be submitted; post indictment arrests are confusing for people
  • Heard discussion this was intended for initial warrant and arrest; maybe not intended for smaller and post indictment
  • Has shined light on non-standard practices such as walk throughs where a magistrate will determine bail but not actually arrest; have advised to still do a PSR in this case
  • Some counties sheriffs do the PSR; judges have issues doing it with lack of information or the 8 hour queries TLETs classes
  • Law enforcement has training for queries, but judge can only order sheriff to do if they consent
  • Are questions concerning who has authority of a case
  • Can’t tell if a felony is pending; statute requires if person is on bond on a previous felony and gets arrested on a new felony previous case must set bond amount; how does judge get in contact with person and whether bond decision has to be made within 48 hours?
  • Smith- Did you have some suggestions as to how we might rectify these?
    • Yes, obviously as being grant funded I can’t lobby or say do these but happy to engage in discussion on impact of what certain changes would be

 

Michelle Farris, Crime Records Division at DPS

  • PSRS is grabbing from TLETS; when authorized user comes in and queries system will submit name, DOB, and state identification number; parameters will match and send resulting responses back
  • Will query the computerized criminal history file and Texas Crime Information Center (TCIC) is specific to where bond information is residing
  • Computerized criminal history system is governed by statutory language, agencies have up to 7 days to submit arrest, most submit electronically with live scan device
  • Roughly 10 of those on border and 500 throughout state
  • Time for live scan device to submit depends on quality of data, can take 10 minutes
  • Conditions of bond within TCIC have two statues that govern entry; HB 766 allows to enter bond conditions as soon as possible; SB 6 which allows to enter bond conditions as soon as possible but not later than the 10th day
  • Are 6 months into this and statewide have 38,000 active records within system; agencies are responsive and the data is coming in
  • 91,000 inquiries in TLETS with PSRS with a 26% error rate at the beginning; errors could be due to data entry issues and whether or not authorized; up to 138,000 entries a month now
  • Smith- Can different counties see previous arrest and bond records in the system?
    • If the previous agency has submitted that arrest by statutory requirement; we don’t reject fingerprints on criminal arrest so they will see them
  • Smith- We have had this issue where people are arrested for trafficking in one county, then charged again in a different county; the county in which the second charge occurs is unaware of the first charge

 

Bronson Tucker, Justice Court Training Center

  • Clarifying that would be a suggestion I would have in terms of when these things are meant to be done; have to consider persons criminal history when considering bail but aren’t required to consider a PSR specifically the way the law is currently written
  • Once PSR generates, the system sees the person is arrested and starts giving 48 hour clock on when person has to magistrate
  • Clarification needed on an arrest warrant that gives more info on status of case and if bond amount is recommended or absolutely set amount; would help magistrates at bail understand their authority and which name to put on form
  • Confusion regarding who sets bail and how to get into contact with municipal judges
  • Cook- What suggestions do you have to fix those problems?
    • Some sort of system that pulls when person Is released on bond and going off bond
  • Cook- Recommend deposition be expanded to include judge and not magistrate?
    • Recommend clarification where its boiled down one way or another
  • Thompson- Let me ask Megan, SB 6 required your office to collect and publish a variety of new data but doesn’t appear that they are reporting data on defendants race and ethnicity?
    • That’s correct; its not on bail form, limited by statute
  • Thompson- Information would be very beneficial to maybe reduce a populations onslaught of criminal activity; don’t know if black and brown persons are given higher bonds?
    • That’s correct; we are not able to tell that info; wouldn’t be difficult to collect data is required through legislation
  • Thompson- Would it be possible to determine the number of people that we have on low levels for marijuana that we may have put in jail on bails?
    • There’s a lot of info in PSRS and have talked about doing more with data in the system; have looked at contracting with a research organization to look at that data
  • Thompson- Concerned about low-level cash bail for people who don’t have the money and are in jail for a couple weeks and society picks up this tab; don’t want to feed into jail system

 

Judge J.R. Woolley, Chair of Judge Group

  • As far as JPs go there’s about 806 JPs in state and 652 of them have been training and have 200 new ones coming in at the beginning of the year
  • Training issues are fixed once people finish up, software issues have come up but OCA and AutoMon have been working on fixes
  • Legislative fixes regarding ambiguity of responsibility to enter a party has been a frustration
  • It’s double work for sheriffs to enter these PSRs, some county sheriffs have said that won’t do them; issue of magistrates not having enough info to do these
  • The APIs should help with this issue by making entry a one time process
  • Funding for that is an additional cost to counties that some commissioners don’t see the importance of it; charge would most likely go annually
  • Funding should be looked at by legislature and see if it should go out to 1214 vendors to get out to counties
  • Issue of confusion with felonies when a new judge is charging someone with a felony; what type of communication has to occur between judges
  • Statutory part that PSRS can only obtain certain info would need legislative change to be able to add who to notify
  • Smith- Have you noticed increased use of PSR issues when trying to modify bond conditions?
    • Yes, but it’s an easy work around; simple as adding users in each court and moving the people to different precincts to put the bond modification format on that
  • Thompson brings up question of whether JPs should be attorneys however there is the issue of finding attorneys who will take the job for that little pay; Judge Wooley feels strongly that JPs are currently doing just as good a job as any attorney would do

 

Steve Brand, Texas Criminal Defense Lawyer

  • SB 6 impacted system dramatically; many jails overcrowded and even sending people to other jails which is affecting attorney client relationships
  • Overcrowding because people can’t afford to make bonds; SB 6 singled out particular offenses by which you can’t put a personal bond; puts a lot of discretion in the hands of law enforcement
  • In bigger jurisdictions a person could wait in jail for weeks or months and may not be able to have contact with the complaining witness for weeks or months
  • Magistrates allowing walk throughs which benefit society in a great number of ways but with SB 6 and PSR there are people who feel that PSR can’t be generated until the person is formally arrested
  • Not in favor of any more bail reforms that would prevent people who are presumed innocent to be set free
  • Presumption of innocence is there to presume the charge is not true in nature but not in the case when you go day to day in front of judges and magistrates and that’s a problem

 

Ken Goods, Professional Bondsmen of Texas

  • Majority of Texas courts, judges issues warrants and don’t immediately decide whether to file case; decide later which is what’s causing issues because SB 6 picks up on arrests not issuing some of these warrants
  • Fix should be making PSI reviewed upon issuance of warrant and require bail amount for every warrant
  • Second issue is 170207; when you are arrested on a felony and out on bond then pick up new charge in the same county; judges confused how to regard the first felony if that case is still pending
  • Having issue in Dallas because everyone goes to magistrate, and they say you are not entitled to bond which really means I don’t have the authority to give you a bond and then there is a delay in going in front of the judge
  • Have compliance issues and Harris County adopted 9.1 before SB 6; they are opting to comply with 9.1 so missing a lot of cases on your reports; having a devastating effect on the criminal justice system in Harris County
  • Thompson- Issue of person being charged with a second offense while they are out on bail with a pending indictment on a previous charge; before they can get a bail set on the second offense they have to go back to jail?
    • I think Mr. Tucker was interpreting that as you have to go back to the first judge in that situation, but I don’t think that’s correct because there’s no first case pending; that the way the statute is written
  • Smith- Could you explant the circumstance in Harris County you alluded to a moment ago?
    • With SB 6 one of the requirements is you can’t release someone until you review their criminal history and that’s not being done in Harris County; one commissioner said we aren’t going to follow SB 6 because we are under a decree; severe consequences in Harris County because of rule 9.1
  • Last 2 years of data show that 72% of criminal cases deposed for misdemeanors were dismissed and 80% failure to appear rate according to Harris County court watch
  • I read this as the criminal justice system is collapsing for misdemeanor and the only way they are stopping it is by dismissing someone
  • Surrounding counties recognize problems and we recognize the problem, but there seems to be a fight with the local people in Harris County and the legislature; need to rectify and get on the same page

 

Kevin Lawrence, Texas Municipal Police Association

  • What is going in on Harris County is of tremendous concern to our members; no consequences for not showing up to court; causing worse problems than the original ones
  • This affects crime as a whole in our society because low level crime feeds into higher level crime; criminal syndicates are very real
  • Bail reform a huge problem since low level criminals are boots on the ground for criminal syndicates for a large percentage
  • If you are committing class A misdemeanors and don’t show up there’s no accountability here; so frustrating for officers who are dealing with this
  • Thompson- You said there is a problem with class A misdemeanors not showing up?
    • Many are $100 bond and free bonds for class A misdemeanors; much larger penalty for failing to appear for a traffic ticket in municipal court for a class B or C misdemeanor
  • Hefner- Why are they doing this?
    • I think it has to do with the consent decree and the panel of judges are doing their own system; have come up with a set of rules that are just bizarre
  • We are applying presumption of innocence in the bail process where it should not be applied at all
  • Smith- I’m hearing that in Harris County if you get arrested for a class A misdemeanor and you bond out and don’t show up for your court date you won’t get arrested?
    • Unless you get arrested for another crime there’s no one looking for you
  • Smith- So failure to appear is the hammer that gets you back to court right?
    • That’s always been my understanding; part of the reason for bail or bond is that it’s the incentive to show up for trial
  • Smith- If the prosecutor’s office is not pursuing the failure to appear that takes the bonding company off the hook?
    • Right and if there’s no bond posted to start with there’s nothing to forfeit
  • Smith- That’s why we are seeing a massive dismissal of misdemeanors right?
    • Also, why you are seeing the backlog of cases higher than it was seven years ago; don’t have the resources to go out and arrest someone and bring them to trial; and it’s the same people over and over ago

 

Brian Hawthorne, Sheriff of Chambers County, Sheriff Association of Texas

  • SB 6 seems to be working; aspects from tech and integration in the process of being fixed
  • Covid was filling up our jails; courts haven’t been able to get jail populations down; backlog of cases not able to caught up on
  • Tolman- I’ve heard in testimony that there are many counties that are caught up and doing very well
    • I think we will find some of the counties in SE Texas haven’t caught up yet
  • Issue with technology side; double work for someone to get PSRS set going; OCA has worked with us on trying to make it happen
  • Hope to have it in play very shortly, the API is going to cost money and in Chambers County we are going to use the JP technology fund
  • Plenty of money for interface to be paid in our county; most likely in other counties; if not the state should step up and help pay for it
  • There’s a shortage of jailers and law enforcement so any sheriff without willingness to take on additional work of SPRs is really struggling
  • Hefner- Are you talking about the integration where you enter the data once?
    • Correct
  • Hefner- Is the $15,000 cost a one time or annual
    • It should be a one-time cost but I could see where they do some kind of software upgrade and say it costs like $5000
  • Button- Can you give us an idea about the Chambers County population size so we have a better idea of what you are talking about; what I’ve heard from the north Texas area is a similar situation; would love to get ideas from you
    • County of 50,000 that butts up to a county of 5 million
  • Button- We don’t want to be shocked by the cost of technology upgrades
    • I will tell you that there’s a 190 counties of less than 50,000 approximately; We want to protect those counties because they truly have a lot of challenges moneywise
  • I think if we give SB 6 some time it will work for us and there’s probably nobody else that wants people out of jail more than your county sheriff; important they are bonded properly and that violent people stay in jail
  • Tolman- Reform can’t compromise public safety; what’s happening in Harris County is incredibly alarming; you would almost see a decrease in crime in your county because they don’t want to leave Harris County, right?
    • Well, they’re on the move; it’s difficult for our detectives to follow these people back into Harris County and they take advantage of that
  • Tolman- Have the sheriffs been involved collectively to try to resolve what’s happening in terms of prosecution?
    • Were a 501c3, so we try not to do too much lobbying; the problems is with the judges and their thoughts to reduce the number of people in jail; the jails are full and the issues are real
  • Morales- You said Covid filled up your jails, but how?
    • It stopped the courts so if there was a traffic stop that turned into a controlled substance then we were not issuing the arrest for the controlled substance; after the lab analysis would come back then we would issue warrants
    • Filling jails up for arrests we didn’t make during Covid; many jails only accepting violent criminals during Covid
  • Leach- Some courts have been much more aggressive in reducing and attacking the backlog; already a backlog pre-Covid and it exacerbated the problem
    • You’re exactly right; some sheriffs have the largest number of pre-trial felons sitting in their jail right now; I don’t think its SB 6 or at least it’s too early to tell

 

Andy Kahan, Crime Stoppers of Houston

  • Data by Harris County DA about number of defenders who are getting PR bonds show the numbers dramatically decreased; these are violent offenders getting PR bonds; expect for 2022 number of these to drop from over 1000 to under 200
  • Some cases have slipped through such as one where a judge gave a PR bond despite defendant already being on two cash bonds with aggravated assault of a family member
  • Repeated charges of violent offenders that keep getting PR bonds
  • Must be a central database where all felony defendants who are getting a PR bond are put into a system
  • Pulled felons in possession of a weapon charge cases and averaging 30-40 cases a month in Harris County where defendants are being released on a PR bond and some have gone on to commit additional crimes
  • Documented over 170 cases where defendants have gone on to kill someone after being released on multiple felony bonds or a felony PR bond; numbers have dropped this year
  • Need to look at cases that are still getting out; most are magistrates that are signing off on PR bonds
  • Thompson- Any movement to fix the courthouses since Harvey really messed them up?
    • Great question; over 100,000 cases backlogged and we have problems that domino into other counties; this affects the entire state of Texas; county jail filled with defendants charged with felonies, mostly violent felonies
  • Harder to go to trial and it’s not only difficult for defendants but also difficult for the victims’ family who are having to wait four to five years; you aren’t meant to go on bond for that long
  • Frustrating for law enforcement when you continue to arrest the same people and they are laughing because they know they will get out by the time you finish the paperwork
  • The committee discusses the addition of a new court to Harris County last session and efforts to add more criminal courts
  • Thompson- Sheriff, what you are saying is the crime is in Harris County and if there wasn’t a problem then there wouldn’t be a problem throughout the state?
    • Hawthorne- Well no, all major cities are seeing the same effect; though as we watch Houston grow chambers county, seeing trends where criminals are working out of the big cities
    • License plate readers are helping us to pursue the traveling criminals who usually travel around 30 miles and then slip back into the cities; very difficult for local law enforcement to go into the big cities and pursue a crime
  • Leach- So what is the problem that we are trying to solve and what can we solve? Is it a lack of political will or resources or all the above?
    • There was a constitutional amendment that was proposed last session; judges that I have spoken with have said their hands are tied on cases except for capital murder because statute entitles you to a bond
    • Tried to get the amendment to allow Texas voters the opportunity to vote on whether or not judges should have discretion especially for violent offenders who keep committing offenses
  • Repeated offenders being released on PR bonds with felons in possession of firearms is a problem; urge legislature to start looking seriously at allowing a known felon to walk out of jail after getting charged with possessing a firearm
  • Hawthorne- It’s not just the judge; we have prosecutors issuing written directives to their staff that they won’t prosecute
  • Thompson- The constitutional amendment you talked about means that if that was in place no matter the amount of monetary influence they have they would also be denied a bond?
    • Correct that’s up to the judge’s discretion
  • Smith- Asks about the backlog
    • We need to start thinking out of the box; let’s start night court, weekend court, and all pitch in to try and eliminate the backlog
  • Smith- So are you seeing a response from the judiciary?
    • Yes, I have seen astronomically high bonds that we have not seen let’s just say a year before; has gone from one extreme to the other
  • Smith- So you can see why the legislature wasn’t interested in providing Harris County more courts if they aren’t going to use them?
    • Yes, I can see that; I don’t think the one that was added came during the regular session and there was a bill file I believe in the last week; obvious we need help
  • Leach- Should be consideration of judges who are deserving and judges who aren’t
  • Buckley- Concerning the folder of felons in possession of a firearm; they were charged with felony possession of a firearm; is there a correlation between how some of that policy is being enforced and the way some countries end up with a PR bond?
    • I only know what’s going on in Harris country; would be a great thing for the committee to find out what happening in other counites
  • Hawthorne- I think that’s exactly what you will find; deals with circumstances of how the encounter took place
  • Smith- Judges do not seem inclined to have trial in Harris County
  • Leach- Are we seeing nonviolent nonsexual offenses being held up by minor drug offenses?
    • Hawthorne- Seeing minor offenses not being tried
  • Hawthorne- Lower-level defenses are being dismissed or not pursued and we aren’t getting around to major and violent cases; need to get backlog eliminated
  • Lawrence- I think there was a time when defense attorneys were telling defendants to put time between it and DA has done terrific job moving those cases along; true majority of backlog is violent cases
  • Lawrence- majority of jails don’t have lower level crimes its crimes against persons

 

Katharine Neill Harris, Rice Baker Institute

  • Texas has some of nations toughest penalties for minor drug charges; more people charged with drug possession in Texas than any other offense
  • Hardly worth the price when these laws don’t decrease drug use and don’t make civilians safer
  • DPS reports that in first nine months of 2022 violent crime levels lower than in 2021
  • Classified 87,000 citizens as criminals last year for drug use; distinct from violent crimes
  • The legislature should lower penalty for possessing less than a gram of controlled substances to a misdemeanor; state jail system costly and taxpayers spent nearly $1 M per day to house these people who are charged with a felony on these drug charges
  • 44% of Americans live in state where it is legal to purchase marijuana and in the case of felony for cannabis edibles people are held on $50,000 for bail
  • Should reduce penalties of having 2 grams or less of cannabis flower; 77% of Texans support marijuana decriminalization; race, class, and geography determine these arrests, arrests outside of urban centers increased
  • Bipartisan issue, Oklahoma reduced penalties for drug possession to a misdemeanor in 2016, in 2022 state reported decreases in violent crime and recidivism
  • Corrections we need will save money and allow us to address addiction more effectively

 

Tara Tucker, Alliance for Safety and Justice

  • Data with respect to drug penalties and state jail felonies that 40,000 felonies for drugs were filed in 2021, and 53,000 state jail felony filings,
  • Recommend people allowed to earn sentence reductions of up to 20% for diligent participation, allowing judges to punish a state jail felony as a class A misdemeanor, allow prosecutors to charge state jail felonies as class A misdemeanor, creation of a vocational pilot program
  • The current system is still failing us
  • Oklahoma reduction of classification of 9,000 cases saw estimated savings of 63.5 M; Texas could save up to $1 m if we reclassify
  • More public safety goals can be met by reducing incarceration and shifting funding to community alternatives
  • Released report with crime survivors saying what will get them to safety; survivors prefer mental health treatment, rehabilitation, drug treatment, and restorative justice, important to listen to what survivors are saying
  • Shifting state jail felonies to misdemeanors could reduce back log in state jails
  • Leach- Thoughts on certain prosecutors implementing policies for jurisdictions to not prosecute certain classes of offenses?
    • Majority of Texans support marijuana decriminalization
  • Leach- Will discuss that more tomorrow; officers of the state need to follow state law
    • Most offenses that they have decided to not prosecute are under the site and release statute
  • Leach- Opinion is not to prosecute but seeing troubling phenomenon across country; if there are any changes, should be made on a state level
  • Button- Discusses a recent article on not prosecuting first defenders of marijuana possession; claims will not reduce jail population

 

Arif Panju, Institute for justice

  • Most constituents surprised by chapter 59 of criminal procedure regarding civil asset forfeiture allowing police and prosecutors to sling criminal allegations in civil court
    • Are few constitutional safeguards
  • Mere suspicion that property is involved in crime is sufficient to sign an affidavit and a petition and get bring this to civil court
  • No right to counsel or prompt procedure hearing before a civil forfeiture case starts
  • Money seized can and does go directly into coffers that support the people who do a seizing
  • Should return forfeiture back into criminal courts; government has an unacceptably low burden in civil court, no beyond a reasonable doubt
  • Don’t need to obtain a conviction for forfeiture and many are signed by officers who aren’t present at scene and have copy and paste allegations
  • Profit incentive to pursue forfeiture or justice, example of a truck driver that lost entire life saving on way to Houston to buy refrigerated trailer and all he had was his legal firearm on him but they kept the cash and won’t give it back
  • Impossible to prove a negative and defend innocence
  • Lack of a prompt seizure hearing is extremely problematic; this would allow people to go in directly after seizure and get the court to look at these allegations to get determination on what took place
  • Reporting laws are extremely weak; reports on how money is spent once a year but no transparency on how the money is obtained
  • Other states do is require tracking of basic info upon seizure, is there a corresponding arrest, conviction etc.
  • Took a case Timms V Indiana to Supreme Court; secured a 9-0 originalist opinion that holds that the excessive fines law applies to the state
  • Tolman- What’s been law enforcement reaction in states that have gone back to criminal?
    • Haven’t heard people not wanting to show up in criminal court
  • Tolman- Seizing money through civil courts it’s antithetical to what the country is built on; has to be traction to using the criminal courts
  • Harris county generates $10 M a year from forfeiture and rely on it for up to a third of their equipment budget
  • Hefner- Asks about procedure when pulling an individual over with “suspicious money?”
    • Could start an investigation; right now they just focusing on the money and not the policing priorities; if it warrants a forfeiture it should warrant an investigation
  • Leach- Are problems with the system and also a legitimate law enforcement purpose for civil asset forfeiture

 

Brian Hawthorne, Sheriff of Chambers County

  • Certain sheriffs and police chiefs don’t want to take away property
  • There are real situations that law enforcement deal with and I would ask the committee not take one of the best tools to combat the drug cartel and the fentanyl coming into this nation
  • Best practices should be put into place such as limiting the smaller amounts of money
  • Hard for small counties to do the kind of investigation that Panju is speaking of
  • Wouldn’t have a problem with a jury looking into this and saying that it is drug money
  • Are problems with Chapter 59; want to work with the committee to clean it up
  • Leach- Appreciate that; Collin County sheriff wrote a white paper and submitted it yesterday

 

Marc Levin, Council on Criminal Justice

  • Difference between forfeiture and seizure; exceptions for those outside jurisdictions of US like cartels and unclaimed property
  • Room to make sure we have the legitimate uses to crack down on drug money
  • Replacing civil with criminal forfeiture is in both democratic and republican platforms of Texas in 2022
  • Lots of reasons to be concerned about this; HB 251 would just move to criminal forfeiture but also open to moving towards compromises such as saying there has to be a conviction or charge within a certain period of time or they have to give property back
  • Smith- Charge or convict is very different; conviction can go on for years
    • For sixth months, charge; question is if statute of limitations is expired why shouldn’t the government give it back
  • Tolman- If someone says the money isn’t mine there should be a path to forfeiture and if they claim it is there then there should be the conviction rule
  • Yes, that certainly makes sense; bill by rep Shaffer would shift the burden to the state with HB 1441; didn’t have a fiscal note which is interesting
  • Transparency issues, no breakdown of conviction and charge percentage

 

Arif Panju, Institute for Justice

  • Leach- Do we know how those funds were spent?
    • Just in big buckets, separate from having a civil cover sheet, other states that have passed laws that show that the civil forfeiture is under $5000 which isn’t the type of cartel we hear described to warrant the status quo
  • Transparency is what we want in this type of society, knowing this data like high rates of default judgment signal a problem
  • Hefner- My sheriffs are already using clear and convincing and being transparent; those forfeitures aren’t allowed to be used for salaries is that correct?
    • Hawthorne- Most do not; take the $5000 cap very seriously
  • Leach- Are you suing Harris County in civil court; can an individual who has had their property seized sue the County to get your money back?
    • Get property back through the forfeiture case, can sue the county or DA if they are violating or have a pattern of violating constitutional rights
  • Leach- Don’t they have sovereign immunity?
    • Not if they are acting unconstitutionally; state has sovereign immunity
    • If you look at Harris County cases reflect a skew of priorities
  • Leach- Could one get recovery of attorney fees?
    • No; have to hire council to intervene or invoke the innocent owner provision of statue
  • Hefner- Hot check revenue can not be used for salaries but forfeiture funds can be used if approved by commissioner; due process protections should be apply
    • Hawthorne- Believe bodycams can help with these situations
    • Panju- Agrees
  • Thompson- If a client is able to get the money do they put it in an interest baring account while awaiting adjudication of the case?
    • Government will say requests for admissions are responded to within 51 days then they are deemed admitted
  • Leach- We have processes in place to get rid of frivolous arbitrary lawsuits
    • The affirmative case is a class action and that is what you’re looking at
    • Prompt post seizure hearing on any forfeitable offense should be a requirement in this state at minimum so you get judges involved early
  • Case we are litigating highlights all of these problems involved with this issue
  • Hawthorne- I will push back to good practices and most sheriffs rely on the DA office so we should bring the DAs into this because they drive the professionalism of this

 

Shannon Edmonds, Texas District and County Attorneys’ Association

  • Heard bills last session by Speaker that preempted Moody’s which would tweak jury instructions in capital cases
  • House voted out unanimously; just went over to senate and never got any traction; was designed to clarify and remedy wording perceived by some to be confusing

 

Steve Brand, Texas Criminal Defense Lawyers Association

  • Leach- Are talking about HB 252 by Rep. Moody that was passed out of house with 148 ayes; did not get a hearing in senate
  • Discussion of language issue during a capital case and needing clarification that if there is a no then the verdict will be life without parole not death penalty
  • TCDLA was hearing rumors about sentencing guidelines and wants to be proponents of staying the course and having jurors be ultimate arbiters if the defendant chooses

 

Robert Owen, Self

  • The problem is by expanding scope of criminal liability we may subject individuals to disproportionately harsh punishment
  • Person could be convicted of capital murder as a conspirator while subjectively possessing lowest level of intent under our legal system and receive the death sentence
  • Supreme Court has held that the death penalty cannot be imposed for an individual unless the person was a major participant in violent felony that resulted in victims’ death
    • Texas law doesn’t consider these two issues
  • Could include these cases into Texas law, could require the jury find the defendant did the killing themselves or intended to
  • Leach- Notes this issue is “near and dear” to his heart