Laws are necessary. They protect us from each other. They preserve social order. They regulate the forces of greed and criminalize the forces of wrongdoing. That’s why laws exist at the local, state and national levels to maintain the social contract. Former President Theodore Roosevelt once said, “Ours is a government of liberty, by, through and under the law. No man is above it, and no man is below it.”
However, it is mind bobbling to realize the sheer number of laws that are enacted each year at both the state and federal level. Roughly 40,000 new state laws take effect on January 1 of each year. According to Federalist Society for Law and Public Policy Studies, there are over 4,000 offenses in the United States Code that carry criminal penalties. We have a lot of laws!
In Texas, the Legislature meets every two years during which it enacts hundreds of new laws. The Texas Bar Journal informs us that the 2015 Texas Legislature considered more than 6,200 pieces of legislation and enacted more than 1300 of them into law. Wow!
New Criminal Laws
A significant portion of the enacted legislation will have a direct impact on the Texas criminal justice system. Writing in the Bar Journal, Kristin Etter, David Gonzalez, Aaron D. Place, Jr., and Patricia Cummings explained the importance of this legislation:
“Guns, the grand jury system, and marijuana decriminalization measures dominated much of the criminal justice arena this legislative session. The bipartisan criminal justice reform movement that was born out of and coalesced with the Michael Morton Act last session continued during the 84th Texas Legislature. Increasingly, the left and the right came full circle during this session and found agreement on many issues. The many high-profile police shootings across the country and the nationwide push for grand jury reform also made its way to Texas and resulted in some important changes aimed at making the process fairer and more transparent.”
Texas gun owners can currently carry shotguns and rifles openly in the public. Beginning January 1, this open carry policy will be extended to individuals who have a concealed carry license. This new open carry legislation, on its face, is paradoxical given Texas lawmakers are so afraid of open carry advocates that they have installed “panic buttons” in their offices. Believe it or not, gun owners can carry firearms into the state capitol, if they have concealed handgun permit. This past January more than 15,000 of these advocates showed up in Austin to lobby lawmakers to end the state’s 100 year ban against public display of handguns. Some were aggressive in their advocacy of gun rights, causing concern among some Texas law makers. The new open carry law was vigorously opposed by Moms Demand Action for Gun Sense in America and many law enforcement officials.
Grand Jury Reform
Criminal defense attorneys throughout Texas are cautiously optimistic that the old “key-man” or “pick-a-pal” grand jury system has been abolished. That system has been replaced with a new system that allows for the “random selection” grand jurors similar to manner in which petit jurors are selected. The Bar Journal said “the aim of this legislation is to increase transparency and curtail concerns over potential conflicts of interest.”
Texas lawmakers have created yet another potential conflict by passing legislation that narrowly legalizes the use of marijuana for medical purposes. Cannabidiol (CBD) is one of the main active chemical compounds found in marijuana. Although a non-intoxicating chemical, this form of marijuana is still considered a Schedule I controlled substance by the federal government. Commonly used to treat epilepsy, the DEA could arrest a medical marijuana user for its possession, and the current policy of the ATF will certainly prohibit the user from owning and possessing a firearm.
Timothy Cole Exoneration Commission
The 2015 Texas Legislature produced several other pieces of remarkable legislation that became law. First, it created the Timothy Cole Exoneration Review Commission, something we have long lobbied for here, to, as the Bar Journal reported, “investigate wrongful convictions and to recommend changes to prevent further wrongful convictions in Texas.”
Forensic Expert Testimony
Second, a Texas inmate may now have his or her conviction “reexamined” in a post-conviction proceeding “if the expert who testified at trial later rejects the testimony based on new knowledge and scientific improvements.”
Third, the Office of Capital Writs’ jurisdiction was expanded “to include representation of defendants whose convictions were based on forensic errors or junk science.” We have long expressed our disdain about “junk science.”
The Legislature also addressed a sensitive constitutional issue we have dealt with in the past: revenge porn. Despite concerns from many criminal defense attorneys about infringement on First Amendment protections, the Bar Journal reported that the Legislature enacted the Unlawful Disclosure or Promotion of Intimate Visual Material Act that not only criminalizes revenge porn, but also “establishes civil penalties that are targeted to websites that promote and publish the material.” The new law reflects that, at least in Texas, the right of personal privacy trumps the right of public expression.
We agree with the conclusion that the 84th Texas Legislature indeed “made incremental but important steps toward reforming our criminal justice system. Our state still has a long way to go to address systemic problems, so we remain hopeful that the bipartisan efforts to reform will continue into the interim as well as future legislative sessions.”