Serving all of New Braunfels; Bulverde; Comal County; Hays County; and Guadalupe County, Texas

The following is a summary of many of the legislative changes that took effect in September of 2011 that relate to criminal offenses.

 

New Offenses:

 

Prohibition of Glass on State-Owned Rivers

 

A person commits an offense if the person knowingly possesses a glass container within the boundaries of a state-owned riverbed in a county that is located within 85 miles of an international border and in which at least four rivers are located. An offense is a Class C misdemeanor. See Health and Safety Code §365.035.

 

Radar Interference Devices

 

A person, other than a law enforcement officer, may not use, attempt to use, install, operate, or attempt to operate a radar interference device in a motor vehicle. A person may not purchase, sell, or offer for sale a radar interference device. A “radar interference device” is defined to include a radar jamming device, jammer, scrambler, or diffuser and to exclude a ham radio, band radio, or similar electronic device. An offense is a Class C misdemeanor. See Transportation Code §547.616.

 

Fraudulently Obtaining a Controlled Substance

 

A person commits an offense if the person, with intent to obtain a controlled substance or combination of controlled substances that is not medically necessary for the person or an amount of a controlled substance or substances that is not medically necessary for the person, obtains or attempts to obtain from a practitioner a controlled substance or a prescription for a controlled substance by misrepresentation, fraud, forgery, deception, subterfuge, or concealment of a material fact. A material fact includes whether the person has an existing prescription for a controlled substance issued for the same period of time by another practitioner. Offense is punishable as follows: (1) second degree felony if a schedule I or II controlled substance; (2) third degree felony if a schedule III or IV controlled substabce; (3) class A misdemeanor if a schedule V controlled substance. See Health and Safety Code §481.129.

 

Engaging in Organized Crime

 

This section was amended to now include “causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug”. See Penal Code §71.02.

 

Texas Controlled Substances Act; Penalty Group 2

 

Adds synthetic marijuana, commonly known as K2, to the list of controlled substances. See Health and Safety Code §481.103.

 

Electronic Transmission of Certain Visual Material Depicting a Minor; “Sexting”

 

Creates the new offense for minors of “sexting”. It is an offense for a minor to intentionally or knowingly: (1) promote by electronic means to another minor visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor producing the visual material knew that another minor produced it; or (2) possess in electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced the visual material or knew that another minor produced the visual material.

 

Offense is punishable as a Class C misdemeanor; unless the actor promoted the material with the intent to harass, annoy, alarm, abuse, torment embarrass, or offend another, or if the actor has one or more previous convictions for “sexting,” in which case it may be punishable as a Class A or B misdemeanor.

 

Defenses to “Sexting”: (1) If the visual material depicted only actor or another minor who is not more than two years older or younger and with whom the actor had a dating relationship at the time of the offense or was the spouse and was promoted or received only to or from the actor and the other minor. (2) If the actor did not produce or solicit the visual material, possessed the visual material only after receiving the material from another, and destroyed the material within a reasonable time. See Penal Code §43.261.

 

Illegal Dumping; Discarding Lighted Materials

 

A person commits an offense if the person discards lighted litter, including a match, cigarette, or cigar, onto open-spaced land or a public or private road and a fire is ignited as a result of the conduct. An offense is a Class C misdemeanor. See Health and Safety Code §365.012.

 

Enhancements to current offenses:

 

Driving While Intoxicated

 

If a person commits the offense of driving while intoxicated and the person’s BAC is 0.15 or higher, the penalty is enhanced from a Class B misdemeanor to a Class A misdemeanor. See Penal Code §49.04.

 

Intoxication Assault

 

If a person commits intoxication assault and the victim suffers a traumatic brain injury that results in a persistent vegetative state, the penalty is enhanced from a third degree felony to a second degree felony. See Penal Code §49.09.

 

Fraud in Fishing Tournaments

 

A person commits an offense if, with intent to affect the outcome of a fishing tournament, the person alters the length or weight of a fish or the person enters a fish in the tournament that was taken in violation of any provision of this code or a proclamation or regulation of the commission. Offense is a Class A misdemeanor, except that if the offense occurred during a tournament in which any prize is worth $10,000 or more in money or goods, the offense is a third degree felony. See Parks and Wildlife Code §66.02.

 

Expunction and Sealing of Records:

 

New Waiting Periods for Expunctions

• Dismissed Cases:
• No waiting period; may expunge offense immediately

• Uncharged Cases:
• No waiting period if prosecutor certifies that the arrest records and files are not needed for use in any criminal investigation or prosecution
• 180 day waiting period for Class C misdemeanors
• 1 year waiting period of Class A and Class B misdemeanors
• 3 year waiting period for felonies

Juveniles

 

For Class C misdemeanors committed by juveniles, all records and files, including those held by law enforcement, are automatically confidential and may not be disclosed to the public.

 

Deferred Adjudication

 

The Texas Constitution was amended to allow the Governor to pardon a person who successfully completes a term of deferred adjudication community supervision.

 

Changes in Criminal Procedure Law:

• The court is now required to allow an indigent defendant to create an installment payment plan in misdemeanor cases when imposing a fine and costs. See Code of Criminal Procedure 42.15.


• A defendant confined in a penal institution may enter a “plea in abstentia,” meaning it may be in writing and delivered by mail, electronic, or facsimile transmission. See Code of Criminal Procedure 27.19.


• A grand jury indictment cannot be made public if a defendant is not in custody or under bond at the time of the presentment of the indictment. See Code of Criminal Procedure 20.22.


• In a juvenile court proceeding, statements of a child are admissible if they were recorded by an electronic device and were obtained in compliance with the laws of the state in which they were obtained or in compliance with federal law. See Family Code 51.095.


• “Stalking” now includes conduct towards an individual with whom the person has a dating relationship. See Penal Code 42.072. Each party may offer testimony as to all relevant facts and circumstances to help the judge or jury determine whether the actor’s conduct would cause a reasonable person to experience fear. See Code of Criminal Procedure 38.46.


• A court can allow a child to have a toy, blanket, other comfort item, or a support person with them while testifying in a criminal case. The court must find by a preponderance of the evidence that the child cannot reasonably testify without possession of the item or person, and that allowing it is not likely to prejudice the judge or jury in evaluating the child’s testimony. See Code of Criminal Procedure 38.074.


• The prosecutor, as far as reasonably practical, must give the victim, the guardian of the victim, or the close relative of a deceased victim, notice of the existence and terms of any plea bargain agreement to be presented to the court. See Code of Criminal Procedure 56.08. The court, prior to accepting a plea, must inquire as to whether the prosecutor gave such notice. See Code of Criminal Procedure 26.13.

I Had No Idea That Would Happen: Collateral Consequences of Family Violence Cases

 

By: Sam Bassett

            There are several collateral consequences in family law cases that arise when a finding of family violence is made or when a person is arrested for family violence.  Emergency Protective Orders allow a judge to issue a protective order without a prior hearing if the person was arrested for a family violence-related offense.  In a case where serious bodily injury is alleged or where a deadly weapon is involved, a judge must issue this type of protective order before the defendant can be released from jail.  The second type of protective order can be filed by the District Attorney, and are often filed by private attorneys on behalf of their clients.  These applications must contain a sworn statement by the victim, describing the family violence that occurred and the need for protection.  The court must make a finding that there is a clear and present danger of family violence; that family violence has occurred and that family violence is likely to occur in the future.

            Family violence can also affect a person’s right to carry a weapon, and may result in that person’s deportation.  Texas state law provides that a person who has been convicted of assault family violence cannot possess a firearm for a period of five years after their release from jail or probation.  Additionally, a person who has been served with an emergency protective order may not possess a firearm until the order expires.  Any alien who is convicted for a crime of domestic violence or who violates a protective order is subject to deportation.  If the alien is in the United States illegally and is convicted of a crime of domestic violence that alien may never be granted legal alien status.

 

            A finding of family violence will affect child custody arrangements and may make the victim eligible for spousal maintenance.  A court cannot appoint the parties as joint managing conservators if there is credible evidence that a party has a history or pattern of child neglect, or physical or sexual abuse against the other parent or a child.  A victim of family violence in a divorce proceeding may be eligible for spousal maintenance regardless of the length of the marriage.  Normally, without a finding of family violence, the marriage must have lasted at least ten years and meet other requirements in order for a spouse to be eligible for spousal maintenance.  The amount of maintenance can be up to $2,500 per month and can last for up to 3 years.

 

Summarized from Voice for the Defense Vol. 40 No. 1