Tuesday, November 20, 2012

Taking a look at notable criminal justice bills in the Texas Senate

Yesterday we looked at some of the criminal justice bills filed in the Texas House. Today it's time to head down the hallway and check out what the state senate has been up to.

First up is Sen. Rodney Ellis' (D-Houston) reciprocal discovery bill. Yes, the proposal codifies what materials the state must make available to the defense. In many areas of the state these items are covered under standard discovery orders issued by the courts. But the bill would also require the defense to make material available to the state prior to trial.

While some would see no problem with this arrangement, it puts a burden on the defense to produce evidence - something the defense is not required to do at trial. In a criminal prosecution the burden of proof is placed squarely on the shoulders of the state - this isn't a civil case where both sides have a burden to meet.

Additionally, the bill provides no effective relief should the state fail to produce the required items. In fact, the bill makes itself a punch line by explicitly stating that the failure of the state to comply is not grounds to dismiss a case or set aside a verdict.

Sen. Dan Patrick (R-Houston) has put forth a bill that would permit deferred adjudication for intoxication offenses. That is a step in the right direction. If a defendant is able to plead to deferred adjudication for every other misdemeanor offense and the vast majority of felony offenses, it makes no sense whatsoever that he isn't allowed to be placed on deferred adjudication for driving while intoxicated. For recognizing this, I give Sen. Patrick a thumbs-up.

The proposed bill would count a deferred on an intoxication offense as a conviction for enhancement purposes. On this I have mixed feelings. While I think a prosecutor should be allowed to take into consideration a prior deferred on a DWI, I don't like making it black letter law. Defendants choose to take deferred for a variety of reasons. Sometimes that decision is made because the risks of going to trial versus taking a deferred are too great - even for an innocent person.

Sen. Patrick has also proposed a bill that would make it a Class A misdemeanor for former members of the state legislature to lobby until after the second regular session after their retirement, or firing, has adjourned.

Yes, the proposed bill would put a temporary stop to the revolving door that infects our government at all levels. But, do the provisions prohibiting lobbying for a certain period of time violate the First Amendment?

Finally, Sen. Judith Zaffirini (D-Laredo) introduced a companion bill to Rep. Craddick's proposal to make it a crime to text while driving.

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